Operationalising the Responsibility to Protect: The Continuing Debate over where Authority should be Located for the Use of Force

This report focuses on the question of where authority should be located for the use of force. This question has been a matter of considerable controversy since NATO unilaterally employed force to protect the Kosovars in March 1999. At the heart of this debate has been the question of whether the UN Security Council should be the only body that can authorise the use of force for humanitarian purposes. Or alternatively, are there substitutes for Security Council authority that can and should be invoked – both legally and morally – in cases where the Council is either unable (because of the power of the veto) or unwilling (because of the lack of majority support in the Council) to act to prevent or end mass atrocities. Restricting itself to a focus on the military dimension of R2P, this report identifies seven models of authority which span the boundary from consent to non-consensual action. These are: (1) consent freely given; (2) coerced and induced consent; (3) Security Council authorisation; (4) the Security Council as a global jury; (5) General Assembly authorisation; (6) Regional arrangements; and (7) coalitions of the willing. The level of controversy regarding the legitimacy and legality of using force for protection purposes increases as intervention moves into the non-consensual realm. Even if governments disagree about the efficacy of using force, it is recognised that sovereign states have the right to request such assistance. Indeed, the UN Secretary-General and his advisors have identified assisting (the military component is only one dimension here) states in fulfilling their responsibilities for protection as a key goal in operationalising the 2005 Outcome Document. However, as my report argues, the boundary between consent and non-consent is an imprecise one, and it is necessary to recognise that consent for military deployments is often secured through the threat of coercive pressures (as with the case of East Timor in September 1999) as well as inducements in the form of rewards. From the seven models of authority identified, five are ones that might be employed by governments in cases where a target state is ‘manifestly failing’ to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity’ (as set out in paragraph 139 of the Outcome Document). The least controversial here is Security Council authorisation, but the proclivity of the Council to interpret Article 39 of Chapter VII as permitting such uses of force is a recent normative development, and one that should not be underestimated when set against the Security Council’s narrow statist interpretation of Article 2 (7) during the Cold War. Nevertheless, the report points out that whilst the new norm of Security Council authorised protection has enabled interventions that were previously unthinkable, this has not ensured that action has been taken when it was most desperately needed such as in Rwanda, and more controversially in Darfur. There is also the possibility that future cases might see the Council reversing this expansive interpretation of Chapter VII, and many governments in the Non-Aligned Movement remain sensitive about the Council expanding its competence into matters that were previously covered by Article 2 (7) of the Charter. The report explores the potential of General Assembly authorisation when the Security Council is deadlocked (as could have happened if Western governments had sought a mandate for intervention in Darfur). However, this poses a host of problems that will caution governments, especially those with a vested interest in maintaining the authority of the veto from pressing their claims in this body. The legitimacy that would flow from an affirmative vote in the General Assembly is the strongest argument here, but critics of the Assembly who favour vesting authority in a ‘concert of democracies’ would reply that decisions on whether to save endangered peoples should not rest with an Assembly that is comprised of a large number of governments that do not have good human rights credentials in their own jurisdictions. The above criticism opens up the much larger question of UN reform but advocates of R2P have not been afraid to enter this terrain. The International Commission on Intervention and State Sovereignty argued in 2001 that the five permanent members of the Security Council (P5) should limit the exercise of the veto in cases where there was majority support for a resolution authorising intervention for human protection (unless vital interests were at stake). However, such a proposal would not resolve divisions between the P5 such as those that arose over Kosovo because what was at stake in the latter case was not a capricious Russian and Chinese threat to veto NATO’s action but genuine differences of opinion over whether the use of force was warranted. Moreover, what made the Kosovo case such a difficult one for the Council was that NATO was seeking a mandate (though it never tabled a formal resolution) to use force to prevent what it argued was an impending humanitarian catastrophe. Justifying preventive or anticipatory intervention for protection purposes is extraordinary difficult because action will always lack the legitimacy that comes from media reports of mass atrocities. This seems an inescapable problem and certainly one that will not be resolved by any of the proposed reforms to the Security Council’s working methods or practices. Consequently, we are left with the prospect of future Kosovo-type situations where the permanent members (perhaps expanded beyond the P5) are divided on the merits of military action. Yet the Security Council’s handling of the Kosovo case might also offer the best precedent for how the international community should cope with future cases of this kind. The lesson of Kosovo, and especially the abject defeat of the Russian draft resolution condemning the bombing, is that Council members are not ready to legally sanction armed intervention for humanitarian purposes that lacks express Council authorisation. But neither will they always condemn it. A majority of Council members were persuaded that NATO’s breach of the strict procedural rules of the UN Charter should be excused and in this sense it operated an international equivalent to mitigation in domestic law. By contrast with those liberal interventionists who wish to establish the principle that coalitions of the willing have the authority to consider using force in cases where the Security Council is paralysed from acting, the Kosovo model of the Security Council as a global jury has the virtue of not directly challenging the Council’s authority whilst also preserving an emergency exit when it is ‘manifestly failing’ to protect populations from genocide and mass killing.