NAVIGATING THE GREY AREA BETWEEN LEGITIMACY AND LEGALITY
The crisis in Libya is getting intense media coverage in Australia. This is primarily because of the scale, pace and brutality of the events unfolding there. After last week’s Security Council Resolution 1973 though, the Libyan crisis has become more relevant to us for another reason: Australia’s involvement in international negotiations for intervention. While the five permanent members of the Security Council hold the balance of power in these negotiations, Foreign Minister Rudd credits Australia’s “middle power” diplomacy with the successful push for Resolution 1973’s broad authorisation of intervention in Libya.
In The Weekend Australian, Rudd also trumpeted “R2P”, or the “responsibility to protect”, as the motivating force behind Resolution 1973 – and also as a uniquely Australian contribution to resolving the crisis. In this short article I challenge Rudd’s invocation of R2P to justify the intervention. R2P occupies a controversial and uncertain space in international law. As such, it may be premature for Rudd to call on R2P at this critical time for Libya.
What is R2P?
R2P was pioneered by former Australian Foreign Minister Gareth Evans, as co-chair of the International Commission on Intervention and State Security. It emerged as a response to the Rwandan and Kosovo tragedies. Both were the result of flawed international collective security architecture. R2P imposes a duty on states to intervene unilaterally in certain cases of humanitarian crisis. When the Security Council is paralysed by a veto stalemate, R2P is a last resort to authorise collective security action.
In 2004 the United Nations Secretary-General endorsed this emerging idea of a collective responsibility to protect in cases of grave human rights violations like genocide, ethnic cleansing, large scale killing or other violations of international humanitarian law. The primary duty to protect citizens lies with the state, but when a state fails to act, other states have a responsibility to act, by force if necessary. The Secretary-General made clear that R2P would be initiated only by the Security Council authorising military intervention. This last element is important.
Skeptics argue that R2P is a pretext for intervention by powerful states. Security Council legitimacy hardly quells this concern, considering the traditional interests of the five permanent members which are embedded in the structure and politics of the Security Council.
Is R2P a byword for intervention?
In 2009, members of the more representative General Assembly debated R2P. The result was a broad, but not necessarily substantial, consensus. Similarly, although the Security Council approved R2P in Resolution 1674 on the Protection of Civilians in Armed Conflict, it did nothing to resolve underlying questions as to the scope of R2P. What does R2P add to existing state obligations and to the arsenal of instruments the international community already has to respond to atrocities? Is R2P a byword for intervention? How can R2P be operationalised? There are deeper questions of morality too. Intervening to save millions of lives and avert large scale human rights violations might be morally just, but can this inspiration form the basis of binding international law obligations? And whose morality would this obligation reflect?
Intervening to save millions of lives and avert large scale human rights violations might be morally just, but can this inspiration form the basis of binding international law obligations?
These questions remain unanswered today. Knowledge of the impact of R2P is limited. Recent practice shows both the international community’s failure to prevent atrocities (Darfur) and its success (Kenya). But we cannot directly attribute either of these cases to the use, or non-use, of R2P.
As such, the status of R2P under international law is unclear and controversial. We should now look more closely at how R2P has featured in the Libyan crisis and whether Rudd’s invocation of R2P has any merit.
Is Rudd too quick to say that Security Council Resolution 1973 endorses R2P?
The wording of Resolution 1973 does not mention R2P. Nor does it mention the related – but not identical – concept of humanitarian intervention. Resolution 1973 mandates member states taking “all necessary measures”, which includes imposing a no-fly zone and freezing travel and assets for specified persons. It stops short of authorising occupation. Nevertheless, as Professor Milanovic has commented, the resolution is unusually broad. While it does not explicitly endorse R2P or humanitarian intervention, the resolution is phrased generously enough to accommodate interpretation along those lines. It appears that the status of R2P under international law is more uncertain than ever.
It appears that the status of R2P under international law is more uncertain than ever.
Can Rudd’s invocation of R2P influence customary law?
Though Resolution 1973 doesn’t explicitly mention R2P, there are other ways that Rudd’s invocation of R2P could influence the doctrine’s status under international law. Rudd’s use of the language of R2P may contribute to the doctrine’s increasing recognition as a legally binding rule of customary international law. International law consists not only of principles codified in legal documents (such as the provisions of the UN Charter, the ICC Statute, the Geneva Conventions etc) but also rules of customary international law. Customary international law may or may not be codified in legal documents. Customary international law is formed when there is sufficient state practice, and belief in the legally binding nature of that practice, to warrant recognising the practice as a custom. Put simply, the more states that use the language of R2P to justify taking unilateral action to intervene or use force against another state, the more evidence there is that a customary rule of R2P or humanitarian intervention exists.
If not R2P, does Resolution 1973 implicitly endorse humanitarian intervention?
At this stage, R2P is not recognised as a binding rule of customary international law. As explained above, there is simply no clear and overwhelming state practice that supports this conclusion. However, it is possible that Resolution 1973 does endorse, to a certain degree, the related, but not identical, concept of humanitarian intervention.
The notion of humanitarian intervention predates R2P. It is the most controversial exception to international law’s general prohibition on the use of force. The controversy lies in the tension between the supposed absolute sovereignty of states under international law and the even more fundamental human rights of individuals which may be enough to justify intervention in other states to avert mass atrocities. However, the acceptance and status of humanitarian intervention under international law is as opaque as R2P.
For example, the international community’s reaction to NATO’s Kosovo intervention in 1999 reflects the uncertain status of humanitarian intervention under international law. At the time, no Security Council resolution authorised NATO’s action and there had been no attack on a United Nations member state which could justify the intervention. As such, NATO’s intervention violated the United Nations Charter’s signal prohibition in Article 2(4) on the use of force. In its defence, NATO relied on mitigating circumstances and moral justification. A later independent report on the crisis concluded that NATO’s action was not strictly legal, but it was legitimate. This view was widely corroborated by states.
Going further back, the 1991 Kuwait crisis bears parallels to the current Libyan situation. Then, Security Council Resolution 668 authorised no-fly zones but did not authorise the use of force. However, the US and the UK went on to conduct pre-emptive airstrikes. Despite this breach of the resolution, the strikes were never formally condemned by the Security Council. This may have suggested a limited acceptance of a right of unilateral humanitarian intervention.
However, the situation in Libya is different. Here we can point to the Security Council’s authorisation of “all necessary measures” in Resolution 1973 to legitimise the intervention. Some may argue, then, that this is enough: we need not make further enquiries about whether this means the notion of humanitarian intervention, or R2P, is alive and well, that this is simply an isolated exception to the prohibition of the use of force, endorsed by the Security Council.
Yet, Rudd argued in The Australian that Libya contrasts from other situations where the Security Council has authorised intervention. Intervention through the Security Council has, in the past, been authorised when there is a declared “threat to international peace and security”. The Security Council has not yet declared Libya to pose such a threat. This leaves Resolution 1973 on unclear foundations. What is the basis for its authorisation of use of force? Can Resolution 1973 be read as an implicit endorsement of R2P or humanitarian intervention, or does it mean something else entirely?
An uncertain outlook for Rudd’s R2P
Where does this leave Rudd’s applause for R2P? This article has argued that Rudd’s voice alone can’t elevate R2P into a binding international law rule. There needs to be a consensus of states supporting R2P to crystallise it as state practice. In the context of the Libyan crisis, we are yet to hear other states promulgate R2P.
As such, Rudd’s invocation of R2P remains just talk. Whether the intervention succeeds or fails (however this can be measured), it will be interesting to see if Rudd continues to call on R2P to justify the international community’s action in Libya, and whether this language, or that of humanitarian intervention, is called on by other states.
Rudd’s invocation of R2P remains just talk.
While events in Libya unfold quickly, international law moves comparably slowly. Whether the international community’s response to Libya’s crisis cements humanitarian intervention, or R2P, as binding legal principles, will take time and reflection to reveal.
Henrietta Zeffert founded Right Now in 2005 and Right Now Radio in 2008. Henrietta graduated with a Bachelor of Arts/Bachelor of Laws (Honours) from the University of Melbourne in 2007. She was admitted as an Australian lawyer in 2009. From 2009 to 2010 Henrietta read the Bachelor of Civil Law at the University of Oxford, focusing on comparative human rights, socio-economic rights, and substantive equality, and graduated with distinction.Henrietta is currently research assistant to Professor Hilary Charlesworth at The Australian National University. From 2011 until 2012, Henrietta will be an associate to a judge of the High Court of Australia.