A few weeks ago, Professor Ved Nanda posted on the significance of the Libya conflict for the concept of R2P. This entry takes issue with with Professor Nanda’s comment that “time will tell whether NATO by overstepping its mandate in Libya may have damaged the concept”, and instead argues that R2P in its current form has been damaged beyond repair, never to be utilised again. This pessimistic observation is a direct consequence of the problems of intervention in Libya.
The recognition given to the concept of R2P in 2005 was, as Professor Nanda notes, a momentous achievement. The concept itself reworks in a more positive manner the approach of several jurists[1. See e.g. M Reisman and M McDougal, Humanitarian Intervention to protect the Ibos, in RB Lillich (ed.), Humanitarian Intervention and the United Nations, Charlottesville, 1973, p. 177.] who advocated the idea of a qualified sovereignty in cases that demanded humanitarian intervention – an idea which understandably aroused great suspicion on the part of post-colonial nations and the developing world. R2P may have seemed a more palatable option due to the emphasis on the availability of intervention as a last resort (including a more structured process for encouraging compliance with human rights standards) as well as post conflict solutions. However, these elements, which formed a large part of the lengthy ICISS report,[2. http://www.scribd.com/doc/52015826/Responsibility-to-Protect-Iciss-Report] were left untouched in the World Summit Outcome Document. The relevant paragraphs[3. Paras 138, 139, at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N05/487/60/PDF/N0548760.pdf] were undoubtedly the product of a compromise in which R2P suffered in its association with the controversial, unilateral notion of humanitarian intervention. The clear focus of the delegates, therefore, was to restrict R2P to Security Council authorised action.
Although the UN Secretary General, acting through his Special Representative on R2P,[4. http://www.un.org/en/preventgenocide/adviser/index.shtml] has provided valuable guidance and elucidation of R2P,[5. Principally in his report, Implementing the Responsibility to Protect at http://globalr2p.org/pdf/SGR2PEng.pdf] it is important to remember that this does not represent the state of international law on the subject. The report has not been endorsed by the General Assembly, indeed, the GA 6th (Legal) Committee remains divided on the proper scope of R2P and its use.
Authorisation of the use of force in an R2P scenario could be considered controversial, but it submitted that such action falls within the tendency of the Security Council to broaden its mandate since the early 1990’s. From this perspective, the affirmation of R2P in the World Summit Outcome Document is merely confirmation that the Security Council is permitted to view a wholly internal, R2P situation as a threat to international peace and security, thus allowing it to legitimately respond under Chapter VII. In UNSC Resolution 1973, it would appear that this is exactly what occurred. Whether NATO, in acting pursuant to that Resolution, has exceeded its mandate is a difficult question which will not be pursued here – but what is clear is that when a mandate is phrased in functional terms such as ‘protection of civilians’, the contours of that authorisation will prove controversial. The emphasis placed on authorisation rather than the content of R2P has lead to its destruction as a credible mechanism. In invoking an R2P concept that lacked clear agreed content, the door was opened to criticisms of mission creep. When such criticism comes from Permanent Members of the Security Council, it would appear that R2P in its current form was a one off magic bullet. It took great efforts to secure UNSC Resolution 1973 – efforts that will likely be in vain in future situations due to the Libyan experience and the negative reactions of P5 members.[6. The Chinese and Russian vetoes in respect of the ongoing situation in Syria might be illustrative of this stance, despite the fact that no military action has been proposed.]
What, then, is the future of R2P? One solution would be to have a clearly defined concept which, when invoked, would leave less room for interpretative differences, at least in terms of the basic mission. This might then give the members of the Security Council renewed confidence to invoke it. However, the difficulties in agreeing anything in the 6th Committee, the lack of positive response to the Secretary General’s understanding of R2P, and the failure of the World Summit Outcome Document to adopt more than a few lines of the ICISS report indicate that such hopes may well be in vain.
The second solution, which might be favourable, is the development of regional arrangements which utilise the concept. Art 4(h) of the AU Constitution provides a prime example of such a position.[7. http://www.au2002.gov.za/docs/key_oau/au_act.htm] However, it is also illustrative of the problems with this approach, in that the required approval was not given in the case of Libya, leading perhaps to the conclusion that regional arrangements might be more illusory than real. In addition, there remains the issue of whether such authorisation is compatible with the prohibition on the use of force, often invoked as a norm of ius cogens.[8. For a recent and I would argue, persuasive article to the effect that the prohibition on the use of force is not a norm of ius cogens, see Green, Questioning the Peremptory Status of the Prohibition of the Use of Force (2011) 32 Michigan Journal of International Law 215-255.]
The third, most realistic, and most undesirable option is that R2P will continue to be invoked on a unilateral or multilateral basis outside of the Security Council. The reaction of states to the NATO intervention in Kosovo suggests that such an approach is not permitted under international law, and their insistence on Security Council authorisation in the World Summit Outcome Document supports this view. In taking that step, states emphasised their worries about imperialist ambition and state supported regime change. The irony is that the Libyan campaign, the greatest success of R2P, is also its greatest failure. The scenarios which the contributors to the World Summit sought so hard to avoid have been made more likely by their unfinished and imperfect solution.