The Responsibility to Protect and the Third Pillar

Legitimacy and Operationalization

D. Fiott, J. Koops, D. Fiott, J. Koops

• Publisher: Palgrave Macmillan
• Year: 2014
• Print ISBN: 9781349473267, 9781137364395
• eBook ISBN: 9781137364401
• Topic: Politique et relations internationales
• Subtopic: Politique comparée

As the RtoP moves from norm to operationalization, greater analysis of action to halt crimes against humanity, war crimes, genocide and ethnic cleansing is needed. This uncovers opportunities and challenges associated with third pillar interventions by looking at legal, economic, political, military and alternative interventions in third-countries.

1

International Law and the Application of the Third Pillar Approach

Thomas Ramopoulos

The traumatic experiences of Rwanda, Srebrenica, Darfur, the Democratic Republic of the Congo and Somalia, among others, in the 1990s and 2000s underlined the need for an effective international response to mass atrocities. This has led to the creation of international criminal tribunals with jurisdiction to try specific individuals for “atrocity crimes” (Scheffer, 2012). The crisis and eventual military intervention in Kosovo at the end of the 20th century further underlined an apparent discrepancy between the international legality of an intervention not sanctioned by the United Nations Security Council (UNSC) and its legitimacy, arguably stemming from it being indispensable to stop grave human rights violations (see Independent International Commission on Kosovo, 2000: p. 4). Within the framework of this debate, the Responsibility to Protect (RtoP) was proposed as a comprehensive agenda delineating the collective responsibilities of states and the international community¹ to prevent and, if necessary, intervene effectively and in a timely manner in order to stop mass atrocities (ICISS Report, 2001). Of particular interest for the analysis here is the third pillar of the RtoP, whereas the other two pillars are also revisited to the extent necessary to conduct a comprehensive analysis of the international legal status of the RtoP.

In defining sovereignty in terms of responsibility rather than right (Deng, 1995: p. 249; Deng, 2010: pp. 353–370), this principle takes a clear stance on the ostensible dilemma between respecting state sovereignty and intervening in the domestic affairs of a state in order to prevent or stop the occurrence of gross human rights violations. It opts for the latter under specific conditions. The international community has a responsibility to act in a timely and decisive fashion in this regard. Thereby, the RtoP constitutes the latest chapter in an ongoing process where the legitimacy of international law is increasingly measured by its capacity to safeguard fundamental rights. This process is analyzed in the following section of the chapter since it constitutes the framework within which the implementation of the RtoP takes place.

The second section of the chapter discusses the current international legal status of the RtoP. Some commentators have suggested that there is broad consensus on the content and legal status of the first two pillars of the principle as well as on the non-coercive features of the third pillar (Deng, 2011: p. 450; Contarino et al., 2012: p. 286). However, given its direct assault on the principle of non-intervention and the prohibition of the use of force,² which are considered cornerstones of the international legal order since the end of World War II, the third pillar of the RtoP is the most controversial feature of the principle. This has been noted by the United Nations Secretary-General (UNSG) on different occasions (UNSG, 2009: para. 62; UNSG, 2011: para. 44). Grounded in an examination of the relationship of the RtoP with pre-existing international treaties and customs, and subsequent state practice and opinio juris, this section attempts to reach specific conclusions as to the legal status of the RtoP as a whole, and pillar three in particular. Lastly, given the recent focus of the discussion on the implementation of the RtoP on the role of regional organizations, this section also touches on this issue.

Still, two observations are in order here. First, the consensus regarding pillars one and two has still to translate fully into equipping the international community with the necessary and sufficient tools and capacity to take preventive measures. The same deficiencies are also prevalent with respect to the implementation of the non-coercive aspects of the third pillar. In practice, this has often meant that of all the pillars of the RtoP only a possible recourse to coercive action could have been contemplated as an effective response to grave human rights violations. Arguably, this was the case in Libya in 2011. This has allowed the proliferation of arguments suggesting that the RtoP constitutes a thin veil for the use of force against sovereign states. Recognizing this problem and having argued that the three pillars of RtoP need to be of equal length and strength in order for this principle to serve its goals (UNSG, 2009: para. 62), the UNSG has invested greatly since 2007 in the direction of the operationalization of pillars one and two of the RtoP (UNSG, 2007; UNSG, 2009; Bellamy, 2011: pp. 267–269).

Second, coercive and non-coercive elements of all three pillars are often blurred. This observation informs the following analysis on two levels. First, unfettered sovereignty is challenged by the RtoP and its application in general and not solely by one feature of the third pillar, namely the provision of military intervention as a last option. Second, the implementation of the RtoP as a whole, and not just its third pillar, remains controversial because of this coercive character of the principle (Welsh, 2011: p. 261).

Ultimately, this chapter endeavors to offer a comprehensive picture of the current international legal status of the RtoP, in particular the third pillar approach, its implementation and possible development. This is a timely exercise. The unraveling humanitarian catastrophe in Syria and the grave human rights violations in a number of countries across the globe demonstrate once more the need for the international community to have lawful and effective tools to prevent such occurrences. However, the ongoing debate seems to bear very similar characteristics to the one held over the intervention in Kosovo since the late 1990s. Does the requirement of international legality trump at times the goal of effective response to atrocity crimes? Has the law regarding intervention and the use of force changed over the last decades partly due to the emergence of the RtoP? Intervention and the use of force have always been profoundly political issues. However, it is this author’s strong conviction that law matters in both influencing perceptions and justifying political and military action or inaction.

The RtoP and international legal theory

The pronouncement of the principle of the RtoP is a phenomenon in international law and politics that falls squarely within the age-old debate between the positive and natural law schools over the normative foundation of international law (see recently, among others, Hart, 1958: pp. 593–629; Hart, 1961; Verdross and Koeck, 1983). The classical definition of modern international law given by the Permanent Court of International Justice in the Lotus case was positivist in that it was grounded in state sovereignty and consent (PCIJ, 1927). Still, it has been challenged since the end of World War II (International Court of Justice, 1948) despite the temporarily obstructive effect of the Cold War, which stunted the development of international law away from a rigid and unqualified respect for sovereignty as the cornerstone of legitimacy of the international legal order. The emergence of human rights law with the recognition of rules that apply erga omnes, and others that are further jus cogens,³ has proven to be the most systematic challenge in this regard (Francioni, 2005: pp. 271–272 and p. 277). Considerations of morality became relevant, if not prominent, again in international law (Walzer, 2006: p. xxii). This is particularly the case in the Convention on the Prevention and Punishment of the Crime of Genocide, codifying a peremptory norm, where Article I states that “[t]he Contracting Parties […] undertake to prevent and punish [genocide]” (United Nations, 1948: art. I). However, it is commonly understood that this Article did not impose on states a duty to intervene extra-territorially to prevent genocide. Article 41(1) of the ILC Draft Articles on State Responsibility also provides for a duty of states to end through lawful means serious breaches of jus cogens (ILC Draft Articles, 2001: p. 41(1)). Individuals and other non-state actors have become the bearers of rights in international law and at times even enjoy direct access to justice to protect these rights. Within this framework, the RtoP was introduced in an effort not to discredit or ignore sovereignty but rather to couch it in terms of responsibility. The question is though whether, and to what extent, this new concept heralds or at least indicates an actual normative shift in international law, and what effect this has on the legitimacy and effectiveness of international law.

Anne Peters has introduced perhaps one of the most elaborate and radical theses in this regard. Coming from a firmly constitutionalist understanding of international law, she suggests that “[a] dynamic process in which [external] sovereignty is being complemented, and eventually replaced, by a new normative foundation of international law is going on” (Peters, 2009a: p. 514). She explains:

[s]tate sovereignty is not only – as in the meanwhile canonical view – limited by human rights, but is from the outset determined and qualified by humanity, and has a legal value only to the extent that it respects human rights, interests, and needs. It has thus been humanized. Consequently, conflicts between state sovereignty and human rights should not be approached in a balancing process in which the former is played off against the latter on an equal footing, but should be tackled on the basis of a presumption in favour of humanity.

(Peters, 2009a: p. 514)

Thus, according to Peters, the normative foundation of international law lies in the well-being of individuals and not in upholding sovereignty claims or even the principle of non-intervention for their own sake. This bold constitutionalist understanding of international law is served by the emergence of the RtoP, while at the same time it offers a solid foundation to the RtoP. However, it seems to be going further than the existing third pillar of the principle, as discussed in detail in the next section. Peters recognizes a duty to intervene in exceptional cases, namely in cases of war crimes, genocide and crimes against humanity, on the basis of UNSC authorization. Still, the UNSC has the legal obligation to authorize such action (Peters, 2009a: pp. 513–544; Peters, 2009b: pp. 569–573; contra Kidd White et al., 2009: pp. 545–567). Other commentators have also suggested that there is an ongoing shift in the normative foundation of international law (Sarkin, 2009: p. 9; Orford, 2013: p. 103), albeit falling far shorter than Peters’ diagnosis of the current state of international law.

Progressive as this constitutionalist view may be, it raises some fundamental questions with regard to the legitimacy of international law, and ultimately its effectiveness. As observed by Milano, “the question of the legitimacy of an international law without or with little anchorage to territory remains largely unanswered” (Milano, 2013). Of particular interest for the current discussion is whether the RtoP, being an example of this development of international law, has legitimacy or can somehow be imbued with it. Alternatively put, an international law where sovereignty is redefined in terms of responsibility and only loosely linked to state consent runs the danger of being de-legitimized because it will be seen as a tool in all but name to discard the sovereign equality of states (Grygiel, 2010: pp. 268–283). Nagel is also skeptical in this regard (Nagel, 2005: p. 145). It is for this reason that sovereign consent is still seen by many as the legitimizing factor of the international legal order (Chertoff, 2009: pp. 130–147).

Arguably, an international legal order that is decoupled from sovereign consent can enjoy legitimacy through the representativeness of the institutions governing it, in particular the UNSC, and thanks to the effectiveness and consistency of their action. The UNSC can gain in terms of input legitimacy through reform in order to include more states and revisit the right of veto of its five Permanent Members. Still, apart from the fact that such a reform is not forthcoming, it is also debatable that an enlarged UNSC would be representative enough to summon global legitimacy (Etzioni, 2006: pp. 82–85). Besides, a broader membership of the UNSC, or any other authority enjoying similar powers, would almost certainly affect the output legitimacy of this organ, as discussed below.

As to output legitimacy of a “de-territorialized” international law, this can be conferred through the consistent identification of instances that justify the breaching of sovereignty, and the subsequent necessary and effective action against them. However, there are conceptual and practical problems with this idea. First, it is unclear what the limits of the authority of the Security Council should be, especially if defined by an evolutionary understanding of international law that is ultimately grounded in morality. The same questions apply to any international authority that would have the authority to decide on non-coercive or coercive measures, or even an intervention, in light of specific international crimes (Orford, 2013: pp. 103–108). Admittedly, when restricted to the question of the implementation of pillar three of the RtoP, this problem does not arise, since the scope of application of the principle has been strictly defined to four international crimes. The practical problem with this idea is that states individually, and as members of international fora and the UNSC, have been acting based at least partly on their perception of their national interest in each case and not solely on humanitarian grounds (Walzer, 2006: pp. 101–102). It is for this reason, for example, that calls for the P5 to avoid using their veto in the UNSC on a voluntary basis in instances of RtoP violations, in order to achieve a more consistent international response to these, have been unsuccessful (Bellamy, 2013: p. 120).

Thus, the verdict on the normative foundation of contemporary international law is far from final. There has been a movement away from a purely state-centric international legal order to one with more constitutional characteristics that prioritizes the protection against grave violations of human rights. Still, “we have not (yet) moved beyond Westphalia, and […] sovereignty as responsibility continues to be a moral aspiration more than anything else” (Reinold, 2013: p. 155). Further progress in this direction is hampered by the lack of legitimacy of an international legal order not firmly anchored in sovereignty but also lacking an alternative legitimizing factor. A democratic structure or at least some type of structure that ensures consistent and effective implementation of the rules could lend international law legitimacy, but its realization is not in sight. Thus, it is within this dynamic international legal framework, accompanied by less than perfect structures, that pillar three of the RtoP has to be implemented.

The RtoP as a norm of international law?

The principle of the RtoP has undergone a series of transformations since it was first coined by the International Commission on Intervention and State Sovereignty (ICISS) in 2001. Its development is well documented (Thakur, 2011; Luck, 2011: pp. 387–399; Luck, 2012: pp. 39–46). In its current updated version, the RtoP comprises three pillars: the responsibility of each state to protect its populations, the responsibility of the international community to assist states in this and the responsibility of the international community to react if a state fails manifestly to fulfill this responsibility. The material scope of the RtoP has been confined strictly...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• List of Tables
• Acknowledgments
• Notes on Contributors
• List of Abbreviations
• Introduction
• 1. International Law and the Application of the Third Pillar Approach
• 2. The International Criminal Court and the Responsibility to Protect
• 3. Probing the Responsibility to Protect’s Civilian Dimension: What Can Non-Military Sanctions Achieve?
• 4. The Regionalization of the Responsibility to Protect
• 5. China and the Third Pillar
• 6. Russia, the Responsibility to Protect and Intervention
• 7. India and the Responsibility to Protect’s Third Pillar
• 8. The Use of Force and the Third Pillar
• 9. The European Union and the Third Pillar
• 10. The Role of Business in the Responsibility to Protect
• 11. Social Media and the Responsibility to Protect
• 12. Responsibility without Coherence? The Responsibility to Rebuild and Protect in the DRC
• Index