the Responsibility to Protect and International Law_ Moral Legal

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The Responsibility to Protect and International Law: Moral, Legal andPractical

Perspectives on Kosovo, Libya, andSyria

ABSTRA T

!"#anitarian intervention has long been a secondary or tertiary

concern in a sec"rity driven international syste#$ Since %AT&'s

intervention d"ring the Kosovo crisis in ())) there have been

signi*icant develop#ents in both the lang"age and *or# o*

h"#anitarian intervention as a #atter o* international law$ The events

in Kosovo spar+ed debate abo"t how to handle h"#anitarian crisis in

the *"t"re and th"s h"#anitarian intervention evolved into a

redenition o* sovereignty as responsibility and the Responsibility to

Protect$ The Responsibility to Protect has had a n"#ber o*

opport"nities to contin"e to evolve and assert itsel* in an international

legal conte-t thro"gho"t the ens"ing years since the Kosovo

intervention$

The p"rpose o* this research is to e-plore the #oral, legal and

practical i#plications o* the Responsibility to Protect doctrine$

lassical and conte#porary theories o* international relations and

#oral philosophy are applied in the conte-t o* the Responsibility to


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Protect and its e**ect "pon the international syste# and speci*ic

states to c"ltivate a sense o* the develop#ent o* the nor# and

di**erent actors' attit"des towards it$ A literat"re review is cond"cted

to show the practical and concept"al iss"es inherent in the *ra#ewor+

o* the Responsibility to Protect$ The nor# is then applied to the cases

o* Kosovo, Libya, and Syria to assess its e.ect in practice and

deter#ine its origins$ The analysis o* these case st"dies leads to a

n"#ber o* concl"sions regarding its e**ectiveness and *"t"re

application$


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The case st"dies chosen *or this research are Kosovo, Libya, and

Syria$ The case o* Kosovo helps to establish a h"#anitarian

intervention *ra#ewor+, the need *or redenition, and the beginning o*

the Responsibility to Protect$ Libya shows the *irst strong case *or the

positive application o* the Responsibility to Protect in a practical

sense$ The non/intervention in Syria shows the di**ic"lt political iss"es

involved in intervention and presents "ncertainty as to the positive

develop#ent o* the nor#$ These cases clearly show the #yriad o*

practical challenges to RtoP that are borne o"t the theoretical, #oral

iss"es e#bedded in its philosophy$

The concl"sion drawn *ro# the literat"re review and s"bse0"entcase

st"dies is that the c"rrent e.orts to assert the Responsibility to Protect

are ai#ed at the wrong areas o* international law and states, and that

the nor# is not developing positively in a linear pattern$ To

s"ccess*"lly pro#ote its acceptance the Responsibility to Protect #"st

b"ild instit"tional lin+ages to #a+e intervention #ore cost e.ective,

e-ercise the regional options available to pro#ote and ens"re the

legiti#acy o* intervention, and ass"re the acceptance o* RtoP by the

#a1or powers in the Sec"rity o"ncil$


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Table of Contents

Abstract22222222222222222222222222222222222

222222222222i List o*

Tables$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$v hapter (: &verview

$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

$$$$$$$$$$$$$$$$$$$$ (

Introd"ction$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ (

3oals $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 4

!istory o* !"#anitarian Intervention andRtoP$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 5

6ening the Responsibility to Protect$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ (7

Theoretical Perspectives$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$()

%or# 6evelop#ent$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 85

hapter 8: entral Iss"es 9-plored

$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$74Introd"ction$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 74

%or# on*lict$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 7

Indeter#inacy$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 4(


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Prevention $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 44

The Redenition o* Sovereignty$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ ;<

The Sec"rityo"ncil$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ ;

&bligation or Per#ission$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$55

Ab"sing Intervention$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 5)

Political =ill and State Interests$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 8

hapter 7: ase St"dies > Kosovo, Libya, Syria$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$)


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Introd"ction$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ )

Kosovo $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ ?<

Libya $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ );

Syria $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$(


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List of Tables

TABL9 (: Sec"rity o"ncil Resol"tions by o"ntry4


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Chapter 1:Overview

Introduction

The Responsibility to Protect RtoP is a concept"al and practical

tool developed by states, international organiCations s"ch as the

@nited %ations, and international law scholars *or the p"rpose o*

atte#pting to standardiCe and clearly *or# a co#prehensive approach

to #ilitary and non/#ilitary intervention and engage#ent with nation/

states co##itting or in danger o* co##itting h"#an rights ab"ses at a

deter#ined level o* severity$ In essence, RtoP relies on a redenition o*

sovereignty that di.ers *ro# the traditional =estphalian concept o*

sovereignty and relies on three pillars in order to 1"sti*y h"#anitarian

intervention *ro# a #oral and legal standpoint$ Sovereignty as

responsibility atte#pts to redirect the *oc"s o* sovereignty *ro#

classical denitions regarding nonintervention to the

responsibility that r"lers or those in power have to protect the lives o*their citiCens,

and thereby the responsibility that the international co##"nity has to

protect those sa#e citiCens in lie" o* do#estic leadership$ entral also

to this rede*inition is the proposed action plan, which involves

prevention, reaction, and reb"ilding to en*orce RtoP$

The tas+ that the International o##ission on Intervention andState


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Sovereignty IISS and the @nited %ations 3eneral Asse#bly with

the s"pport o* the Secretary 3eneral have "nderta+en is a

challenging one$ Any alteration or


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evol"tion o* established international nor#s is o*ten contentio"s and

concept"ally proble#atic$ The interested parties have #ade so#e

interesting progress and "ncovered a n"#ber o* concept"al, legal,

and #oral iss"es with the basic logic o* RtoP and h"#anitarian

intervention$ In order to "nderstand these challenges, this wor+

e-plores the traditional concepts o* sovereignty and places the# in

1"-taposition to the atte#pt at rede*inition$

This wor+ o"tlines these iss"es and concepts in a logical andint"itive way in

order to *oster a deeper "nderstanding o* the logic o* h"#anitarian

intervention *ro# an international legal perspective$ The *irst chapter

develops an "nderstanding o* the Responsibility to Protect itsel* as a

concept, incl"ding a precise denition o* RtoP, disc"ssion o* the

bac+gro"nd o* RtoP, the develop#ent o* h"#anitarian intervention,

*"rther develop#ent o* the denitions and concepts i#portant to

RtoP, and brie* overview o* the #ain iss"es and controversies$ Thisinitial chapter is

#eant to provide a *o"ndation within the real# o* international

relations "pon which to b"ild the deeper "nderstanding o* the iss"es

inherent in the adoption o* RtoP$ The second chapter o* the st"dy

delves into a deeper "nderstanding o* RtoP with partic"lar re*erence to

the concept"al, practical, and theoretical iss"es laid o"t in the rst

chapter$ The second section is concerned largely with the #oral and

legal iss"es and concepts inherent in RtoP and its develop#ent as a

potential nor# in international law$ The chapter e-plores the


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challenges presented by RtoP, why they e-ist, and how they #ay be

overco#e in so#e cases$ hapter three o* the st"dy e-a#ines the

c"rrent stat"s o* RtoP as an international legal concept by loo+ing at


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case st"dies o* so#e o* its #ost recent applications or evocations in

Libya and Syria preceded by an e-a#ination o* h"#anitarian

intervention in Kosovo in ()))$ The *o"rth and *inal chapter draws

so#e concl"sions *ro# the preceding analysis and s"ggests so#e

i#portant areas o* *oc"s *or the develop#ent o* RtoP$ This incl"des

so#e *easible approaches and *actors to be considered$

The proceeding e-a#ination o* the Responsibility to Protect is

cond"cted largely as a literat"re review with a brie* case st"dy to

e-plore practical applications o* the literat"re$ The opinions o* the

prevailing international legal scholars, international organiCations, and

heads o* state are essential in providing an "nderstanding o* an

international legal nor# as co#ple- and contested as the

Responsibility to Protect$ The stat"s and develop#ent o* the nor# is

reDected thro"gh the bodies o* wor+ p"blished by those in*l"ential in

the *ield, i$e$ those who are capable o* shaping nor#ative

develop#ents in international law$ The case st"dy cond"cted between

the Kosovar, Libyan, and Syrian conDicts serves to highlight the

di**ic"lties inherent in applying a concept as neb"lo"s as RtoP and

provide *"rther conte-t *or the literat"re review$

The analysis concl"des that there are #any operational and #oralproble#s

inherent in the RtoP concept and its application, or lac+ thereo*, to real

world events$ The Responsibility to Protect as it c"rrently stands is

indeter#inate, ethnocentric, and paternalistic$ The #eans by which


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the IISS and so#e #e#bers o* the @nited %ations are atte#pting to

achieve their goals are ill/*or#ed and based on a partic"lar worldview

applied "niversally thro"gh an organiCation, the @nited


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%ations, that is not entirely based "pon the e0"ality o* its #e#bers in

practice$ =hether or not this #eans that the entire Responsibility to

Protect doctrine sho"ld be abandoned is a 0"estion with a less denite

answer$ The concl"sion in hapter 4 atte#pts to address these

proble#s and co#e "p with potential sol"tions, however it #ay co#e

to pass that these iss"es cannot be resolved to the satis*action o* all

@nited %ations #e#bers states$

Goals

Be*ore beginning any in/depth disc"ssion abo"t the

Responsibility to Protect it is necessary to clari*y a n"#ber o* things

with respect to the goals o* this st"dy in order to avoid potential

#is"nderstandings$ The p"rpose o* this e-ploration o* the

Responsibility to Protect is not to clai# or prove that the inherent goal

o* RtoP is #orally wrong or #isg"ided > that goal being the prevention

o* #ass #"rder, genocide, ethnic cleansing, etc$ In *act, as the history

shows, those portions o* RtoP are already enshrined in international

treaties and conventions The 3eneva onventions, and The

onvention on the Prevention and P"nish#ent o* the ri#e o*

3enocide, e$g$ and thereby generally accepted as legiti#ate

international law by

and large$ I do not wish to 0"estion the #oral legiti#acy o* preventinggenocide and

cri#es and against h"#anity, #erely the #echanis#s by which this endis achieved$


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The goal o* this st"dy, there*ore, is to engender a deeper

"nderstanding o* the *"nction and logic o* applying a decidedly

@niversalist nor# li+e RtoP and the iss"es created thereby in order to

assess its a**ect "pon the behavior o* nation/ states re*erred to

elsewhere as Eco#pliance/p"llF$ The potential iss"es related to


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RtoP are that it brings with it a n"#ber o* ass"#ptions and in*erences

abo"t global society and =estern civiliCation in general that can be

proble#atic *or certain perspectives > these in*erences #ay reDect

the privileged position o* the power*"l, =estern societies that have

the #ost sway within international decision #a+ing bodies li+e the

@nited %ations$ This st"dy shows that #any o* the val"es and

theoretical *o"ndations o* RtoP are distinctly ethnocentric, as are

so#e o* the #echanis#s *or en*orcing it$ It is also the atte#pt to

redene the age/old principle o* sovereignty that is proble#atic > the

o##ission asserts their redenition as

tho"gh it is *act, witho"t #"ch disc"ssion to s"pport it$ These iss"es#ay negatively

a**ect the adoption o* RtoP nor#s and thereby hinder the "nderlying

goal$ It is #y hope that e-pos"re o* these iss"es to critical analysis

will reveal other paths$

G"rther#ore, a *air a#o"nt o* the controversy s"rro"nding RtoP

is the tension between the so#eti#es ideologically opposed and

geographically split Per#anent Give P; #e#bers o* the Sec"rity

o"ncil > na#ely, R"ssia and hina as one bloc and the @nited States,

Grance, and the @nited Kingdo# as another$ There is no dearth o*

acade#ic literat"re and analysis that shows the potentially proble#atic

divide between #e#bers o* the P; and the possibility o* a veto

e.ectively bloc+ing @% Sec"rity o"ncil action in a case that #ay call

*or the RtoP *ra#ewor+ to be asserted and an intervention carried o"t$


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Altho"gh there are al#ost certainly vital state interests besides RtoP at

sta+e in these sit"ations the case o* Syria, *or e-a#ple, will be

e-a#ined later, the lac+ o* application o* the RtoP principle in certain

cases serves to highlight this ideological divide between great powers

and


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#e#bers o* the P; regarding the nor#ative conDict between

sovereignty, non/ intervention, and h"#an sec"rity$

It is the ideological content o* RtoP that this st"dy addresses, i$e$the

#echanis#s by which a "niversal #orality is asserted by a certain

gro"ping o* state and non/state actors and what those #echanis#s

reDect not only abo"t the #orality itsel* b"t those who assert it so

vigoro"sly$ The *act that this ideological split, shown both in the

Sec"rity o"ncil and generally abroad, can be de#onstrated thro"gh

the literat"re on RtoP serves to highlight the goals o* this st"dy, which

is #erely to 0"estion the nor#ative stat"s o* concepts that are

generally considered to be

Egood,F li+e h"#anitarian intervention$ Keeping these goals in

#ind, this st"dy proceeds with an e-a#ination o* the history o*

h"#anitarian intervention$

History of Humanitarian Intervention and RtoP

It goes witho"t saying that the evol"tion o* h"#an protection and

intervention has a long history that reaches bac+ thro"gh cent"ries o*

h"#an develop#ent($ !owever, *or the p"rposes o* this st"dy o* the

responsibility to protect, we begin o"r analysis o* h"#an protection

and h"#anitarian intervention with the 3eneva onventions in ()4)$

As 9liCabeth Gerris writes, EA*ter =orld =ar II, international human

rights law developed as a cornerstone o* the new international orderF

8


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5$ So altho"gh the concept o* h"#an rights and h"#an protectioncertainly e-isted

(9liCabeth Gerris clai#s, EModern h"#anitarianis# is generally datedto the #id/ nineteenth cent"ry, when a re#ar+able re*or# #ove#entgrew "p in 9"rope and %orth A#ericaF 8


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be*ore ()4), the h"#anitarian develop#ents that ca#e o"t o* =orld

=ar II are #ost instr"ctive *or o"r p"rposes here$ Most s"ccinctly,

h"#anitarian intervention is de*ined as, Ethe threat or "se o* *orce

across state borders by a state or gro"p o* states ai#ed at

preventing or ending widespread and grave violations o* *"nda#ental

h"#an rights o* persons other than the nationals o* the intervening

state and witho"t the per#ission o* the state within which *orce is

appliedF Garer, Archib"gi, Brown, raw*ord, =eiss and =heeler$

8


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Kosovo, and Rwanda, #any o* which are widely considered to be

*ail"res$ !owever, it was the relative *ail"re o* these operations to halt

or prevent ab"ses


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15?

e**ectively that led to the *or#"lation o* RtoP$ As 9++ehard Stra"ss

notes, Ethe responsibility to protect was developed as a response to

the lac+ o* Sec"rity o"ncil action regarding the sit"ation in Kosovo

that generated #ore general debate abo"t the gap between legality

and legiti#acyF 8


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established @nited %ations principle > sovereignty$ !"#anitarian

intervention o"tside o* the @% is shown in the case st"dy on Kosovo in

hapter 7$ Since then h"#anitarian intervention has atte#pted to

#ove *ro# an e-ception to the r"le to the *or#ation o* a r"le in and o*

itsel*$ Re*ra#ing the arg"#ent in *avor o*


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17?

a responsibility to protect as opposed to h"#anitarian intervention

also allows proponents to *oc"s on aspects other than the intervention

piece which is e-plicitly i#plied as the end/goal, these other aspects

being the prevention and reb"ilding pieces o* RtoP$ In contrast to

h"#anitarian intervention, R8P Eprovides concept"al, nor#ative and

operational lin+ages between assistance, intervention and

reconstr"ctionF Tha+"r 8


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two Additional Protocols on international h"#anitarian law in ar#ed

con*lict the ()4? onvention on the Prevention and P"nish#ent o* the

ri#e o* 3enocide the two ()55 ovenants


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relating to civil, political, social, econo#ic and c"lt"ral rights and theadoption in

())? o* the stat"te *or the establish#ent o* an International ri#inal

o"rt$ So#e tenets o* the 8


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There was a realiCation by Annan and other #e#bers o* the

international co##"nity that h"#anitarian intervention could

wor+ in theory, and that the international co##"nity re0"ired

so#e +ind o* *ra#ewor+ *or it to wor+ e**ectively > this beca#e the

Secretary 3eneral's goal$


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21(<

In 8


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The @nited States had so#e +ey reservations to the resol"tion$ AsStra"ss

writes, EThe @nited States re0"ested, inter alia, to drop the re*erence toincite#ent


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and change the wording bac+ to Jresponsibility' when describing the

role o* the international co##"nityF 8


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recipients o* aid and their protection as opposed to potential violationso*

8 =ording *ro# the &"tco#e 6oc"#ent: EThis responsibility entails theprevention o* s"ch cri#es, including their incitement , thro"ghappropriate and necessary #eans e#phasis #ineF @$ %$ 3eneralAsse#bly 8


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sovereignty$ The #ore recent history o* RtoP and its applications is

addressed #ore in depth in the third chapter on the Libyan and Syrian

civil wars$

Defining the Responsibility to Protect

It is i#portant here to atte#pt a de*inition o* e-actly what it is

the Responsibility to Protect is atte#pting to do or acco#plish$ This is

done by e-ploring the #ain tenets o* RtoP as they are presented in

the IISS report and other o.icial doc"#entation *ro# the @nited

%ations as well as analysis o* those wor+s *ro# international legal

scholars$ In de*ining the Responsibility to Protect as acc"rately as

possible we #ay then e-plore the central iss"es presented by its

i#ple#entation with a *"ller "nderstanding o* their i#pact$ As

addressed later in the wor+, so#e o* the concepts contained within

RtoP are di**ic"lt to dene or deter#ine$ As a res"lt, this section on

dening RtoP re*ers #ainly to the core te-ts that introd"ce and a**ir#

it, i$e$ the 8


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repression or state *ail"re, and the state in 0"estion is "nwilling or

"nable to halt or avert it, the principle o* non/intervention yields to

the

international responsibility to protectF IISS 8


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saying here is that states are responsible as sovereigns *or the

protection o* their citiCens indeed, this responsibility is a prere0"isite

*or sovereignty and that any *ail"re o* this responsibility allows the

international co##"nity to intervene in order to *acilitate said

protection, even against the wishes o* the sovereign who has

allegedly *ailed said responsibility$ As s"ccinctly stated by Badesc"

and Berghol#,

The central nor#ative tenet o* R8P is that state sovereigntyentails responsibility and, there*ore, each state has aresponsibility to protect its citiCens *ro# #ass +illings and othergross violations o* their rights$ !owever, i* a state is "nable or"nwilling to carry o"t that *"nction, the state abrogates itssovereignty, and the responsibility to protect devolves ontointernational actors$ 8


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appropriate and necessary #eans$ =e accept thatresponsibility and will act in accordance with it$ @nited%ations 8


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state#ent that the international co##"nity #ay help nations to *"l*ill

said responsibility, and the third pillar states generally that i* a state

#ani*estly *ails in its responsibilities to protect, the international

co##"nity has the responsibility to "se coercive #eas"res s"ch as

sanctions and #ilitary intervention$ Si#ply stated,

the principle characteristics o* RtoP are that ( civilian protection is aninternational

concern, 8 #ilitary *orce is a viable option *or policing this concern,

7 regional arrange#ents #ay be e.ective in this en*orce#ent and 4

The @nited %ations Sec"rity o"ncil is the #ost legiti#ate body

thro"gh which to achieve this #ilitary civilian protection Bella#y

8


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are essentially within the do#estic 1"risdiction o* any stateF @nited

%ations ()4;, b"t provides e-ceptions "nder hapter HII o* the

harter which concerns sanctions and #ilitary actions$ =hat is

EessentiallyF within in the do#estic 1"risdiction o* a state has never

been precisely dened, however Article 8 provides a g"ide post *or


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navigating thro"gh the di**ic"lt b"siness o* ens"ring

international peace and sec"rity$

=estphalian sovereignty is not the only +ind o* sovereignty,however$

Stephen Krasner's !o#ereignty$ Organi%ed Hypocrisy ())) o"tlines

*o"r di**erent types o* interrelated sovereignty international legal,

interdependence, do#estic, and =estphalian$ International legal

sovereignty is established by #"t"al recognition o* statehood

between states and their capacity to act as states$ Interdependence

sovereignty re*ers to the ability o* states to reg"late cross border

trade and globaliCation$ 6o#estic sovereignty is perhaps the #ost

widely/+nown concept, and re*ers to internal political a"thority

str"ct"res and how those a"thorities e-ercise e**ective control within

their own border$ Ginally, =estphalian sovereignty is based on two

principles Eterritoriality and the e-cl"sion o* e-ternal actors *ro#

do#estic a"thority str"ct"resF Krasner ())), 4/8


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involved: *ro# sovereignty as control to sovereignty as responsibility in

both internal *"nctions and e-ternal d"tiesF IISS 8


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acco#plish vis/O/vis sovereignty$ According to the IISS denition a

prere0"isite o* sovereign a"thority is the ability, act"al or potential, o*

that sovereign to protect their pop"lations *ro# atrocities s"ch a war

cri#es, ethnic cleansing, and genocide$ This protection entails not

only shielding one's pop"lation *ro# o"tside *orces that #y co##it

these cri#es, b"t also internal *orces, whether those be in the

govern#ent itsel* or so#e +ind o* para#ilitary organiCation within the

co"ntry's borders$

=ith respect to the severity or triggers *or RtoP the IISS

6oc"#ent provides, Elarge scale loss o* li*eF or Eethnic cleansing,F that

is Eocc"rring or i##inent$F As a #ore general description they provide

cases o* Econscience/ shoc+ing sit"ations crying o"t *or actionF IISS

8


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e-plored s"bse0"ently in this st"dy$ Ideally, contin"ed application o*

the nor# will help to clari*y these concepts$


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&n the s"b1ect o* a legal threshold *or deter#ining legiti#ate

intervention the o##ission adheres largely to "st =ar theory

principles > Ein the o##ission's 1"dge#ent all the relevant decision

#a+ing criteria can be s"ccinctly s"##ariCed "nder the *ollowing si-

headings: right authority& 'ust cause& right

intention& last resort& proportional means and reasonable prospectsFIISS 8


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Br"nstetter and Bra"n s"ggest that we also consider the probability o*

escalation as a valid "st =ar principle in their wor+ on applications o*

s#all/scale *orce 8


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consider what a.ect the intervention will have "pon the level o*

violence being co##itted$ Gor e-a#ple, atrocities #ay ra#p "p as

o"tside #ilitary intervention draws near in a last ditch e**ort o* sorts,

as so#e have arg"ed they did a*ter %AT& began their operation in

Kosovo$

Theoretical Perspectives

Be*ore going *"rther into the disc"ssion o* the #oral iss"es

created by RtoP it is necessary to provide so#e bac+gro"nd conte-t on

so#e o* the prevailing theoretical *o"ndations o* international

relations, philosophy and ethics$ This e-position, along with o"r

denition o* RtoP, will help gro"nd the proceeding e-a#ination o*

iss"es in hapter 8$ It wo"ld be very possible to pen an entire wor+ on

these theories alone indeed, #any have, however that is beyond the

scope o* this wor+$ This section is #eant to provide a brie* b"t as

co#prehensive as possible overview o* the logic central to so#e

international relations theories in order to give conte-t to the RtoP

disc"ssion$ This wor+ concerns itsel* #ainly with the #oral 0"ality o*

RtoP in this regard and the so"rce o* #orality *ro# a philosophical

perspective$ =hat *ollows is a review o* hris Brown's (nternational

Relations

Theory ())8 and so#e other core te-ts on the central tenets o*cos#opolitan and

co##"nitarian theory$ Brown's wor+ provides "s with a brie*

overview o* the theoretical perspectives that in*or# o"r


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disc"ssion o* RtoP and h"#anitarian intervention in international

law$

The central tenets o* the cos#opolitan theory o* international

relations are based largely on the wor+s o* I##an"el Kant and his

categorical i#perative$ Kant'


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categorical i#perative is a set o* g"idelines that atte#pt to e-plain the

way in which "niversal #orality *"nctions$ Si#ply stated, the categorical

i#perative as laid o"t in Kant's (?; wor+ )roundwork of the etaphysics

of orals relies on three *or#"lations$ The rst is that one sho"ld act only

in s"ch a way that they wo"ld wish their actions to beco#e a "niversal

law$ The second *or#"lation stip"lates that h"#an beings are to be

treated not as a #eans to an end b"t an end in and o* the#selves$ The

third *or#"lation si#ply states, ta+ing into acco"nt the rst two #a-i#s

every rational being sho"ld EAct in accordance with #a-i#s o* a

"niversally legislative #e#ber *or a #erely possible real# o* endsF Kant

8


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*"nda#ental ways$ According to Brown, the co##"nitarian perspectivedi**ers *ro#

cos#opolitanis# in that it atte#pts Eto deepen an "nderstanding o*co##"nal and


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social solidarity rather than theorise the relationship between the

individ"al and h"#an+ind,F and *"rther#ore, EThe root notion o*

co##"nitarian tho"ght is that val"e ste#s *ro# the co##"nity, the

individ"al *inds #eaning in li*e by virt"e o* his or her #e#bership in a

political co##"nityF ())8, ;;$ In the conte-t o* this constr"ction the

individ"al's relationship to h"#anity as a whole, and thereby "niversal

nor#s or concepts regarding the h"#an sec"rity or *reedo# that Kant

has laid o"t *or "s, is less i#portant or less g"ral than the individ"al's

relationship to their co##"nity *ro# which they derive their #oral and

ethical concepts, and thereby their sense o* sel*$

Michael =alCer e-plains this concept *"rther with respect to the

conception o* #orality in Thick and Thin ())4$ os#opolitan #orality

co#es *ro# the top/ down, i$e$ the Kantian ideal o* "niversal

application o* the +ingdo# o* ends$ In this sense #orality is "nderstood

and shared by all #e#bers o* the +ingdo# o* ends, i$e$ the +ingdo# o*

h"#anity$ The co##"nitarian concept o* #orality is #ore gro"nded in

conte-t"al *actors and believes that #orality is established within a

co##"nity *irst and then e-ported, so to spea+$ =alCer criticiCes the

"niversal application o* #orality and val"e syste#s with an ill"strative

#etaphor

=hen *"ll/grown de#ocrats i#agine that the r"les o* disc"rsiveengage#ent are the generative r"les o* #orality in all its +inds,they are very #"ch li+e an oa+ tree that, endowed with speechand enco"raged to spea+ *reely, sole#nly declares the acorn tobe the seed and so"rce o* the entire *orest$ B"t this at leasts"ggests a certain generosity$ =hat is perhaps a better analog"ewo"ld be provided by an oa+ tree that ac+nowledged the *"ll


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range or arboreal di**erence and then arg"ed *or the c"ttingdown o* all those trees, now called illegiti#ate, that did not beginas acorns$ ())4, (7


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These #a-i#alists as =alCer re*ers to the# want to say that the end

res"lt in this case the assertion o* a "niversal #oral principle li+e

RtoP was g"ided *ro# the beginning by a partic"lar set o* ideals,

whereas =alCer believes history will show that it only developed

slowly over ti#e thro"gh a conD"ence o* n"#ero"s *actors and

actions, etc$ > this is the oa+ tree #etaphor bro"ght to light$

G"rther#ore, @niversalist #orality, in asserting its place in a hierarchy

o* #orality, is declaring other viewpoints illegiti#ate and calling *or

the# to be Ec"t downF beca"se they do not serve the ends o*

cos#opolitanis#$

According to !egel, the separation o* co##"nity and theindivid"al is not

only concept"ally ill/advised, b"t act"ally i#possible$ !e writes that it isnot

possible Eto thin+ o* individ"als 2 in isolation *ro# the co##"nitythat has

shaped the# and constit"ted the# as individ"alsF Brown ())8, 58$

In this sense it is only because of o"r "pbringing in a #odern, =estern

society that we have the privilege believe in a "niversal, cos#opolitan

#orality possessed by all$ ohann !erder, as 0"oted in Brown, writes,

EThe individ"al is not prior to c"lt"re > as the Kantian position wo"ld

see# to ass"#e > b"t shaped by itF ())8, ;)$

G"rther#ore, !erder asserts that c"lt"re cannot be conscio"sly created,and

collective political identities are *o"nd in shared co##on c"lt"re, not

sovereignty$ Brown also notes that !erder was a sta"nch pl"ralist


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who did not believe in the s"periority or hierarchy o* any given

c"lt"re$ According to Brown, Ehis arg"#ent is that all peoples have

so#ething to o.er, their own distinctive contrib"tion to the h"#an

*a#ilyF 8$ This *or#"lation is very "ni0"ely constit"ted to stand in


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opposition to the cos#opolitan concepts advanced by Kant and others$

In this conte-t any global society that e-ists is part and parcel *or#ed

by the a#alga#ation o* distinct political "nits andor co##"nities

thro"gh their contrib"tions to the Eh"#an *a#ily$F Tho"gh there #ay

be so#ething to gain by bestowing de#ocratic ideals "pon other

nations in order to #a+e the# #ore peace*"l in accordance with o"r

=estern conceptions o* goodness and #orality, these concepts stated

by !erder thro"gh Brown tell "s that there is also so#ething to be lost

by replacing the ideals and val"es o* other co##"nities with o"r own

beca"se we view the# to be #ore benecial$

%ot only does the theoretical cos#opolitan ethicist not agree

with the assertion that co##"nity is the so"rce o* val"es and

#orality, they believe that alienation *ro# the state or co##"nity is

a precondition *or *reedo#7 ;$ =hat this approach ass"#es, in

opposition to co##"nitarian perspectives, is that the concept o*

E*reedo#F or Egood willF is not derived *ro# the co##"nity itsel*

b"t

they are concepts that e-ist within all h"#an beings by nat"re o* theirh"#anity and

reason, ergo it is derived *ro# the top/down as opposed to the

botto#/"p and it is the separation *ro# their restrictive or biased

co##"nities that allows one to *"lly realiCe these "niversal ideals and

concepts *or the#selves$ In this conte-t a separation *ro# co##"nity


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is devoid o* negative connotations as it theoretically provides the

#eans by which h"#ans #ay achieve their *reedo# as a"tono#o"s

beings and not #eans to an end$

7 Greedo# being E#oral a"tono#y *or Kant, a *ree r"n *or the Jpassions'*or !"#eFBrown ())8$


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Gor Kant, however, it is #an's inability to achieve the +ingdo# o*

ends in the third *or#"lation the leads to these separate political

co##"nities in the rst place$ Brown writes, QGro# a Kantian

perspective, it is the inability o* #an to achieve on earth the "niversal

+ingdo# o* ends re0"ired by the third *or#"lation o* the categorical

i#perative, an inability ste##ing *ro# the radical evil in #ans nat"re,

that legiti#ates the e-isting str"ct"re o* separate political

co##"nitiesQ ())8, ;8$ According to the Kantian conception, we #ay

however be #orally 1"stied in

ridding the world o* despotis# in order to allow all citiCens their

*reedo# to not be treated as #eans to an end$ !owever, war is in and

o* itsel* a great hindrance to this *reedo# and sho"ld be halted

wherever and whenever possible$

The logic o* Responsibility to Protect is "ndo"btedly based oncos#opolitan

ideals, as it ascribes certain *"nda#ental h"#an rights to all people

everywhere si#ply beca"se they are a #e#ber o* h"#anity$ This is

reDected clearly in the lang"age and #eaning o* RtoP$ The concept"al

roots o* RtoP are Ecos#opolitan 2 restrained, or shall we say

so*tened, by the traditional liberal *oc"s on indi#idual rights

e-pressed in the categorical i#peratives o* *irst/generation h"#an

rights doc"#ents and their co"nterparts in the separately evolved

h"#anitarian law o* warF Garer et$ al$ 8


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accorded certain inalienable rights by their very stat"s as h"#an

beings, and it is the responsibility to every sovereign state to ens"re

that these rights are respected$


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The very e-istence o* an international body li+e the @nited

%ations is also in line with cos#opolitan theory$ Brown writes, Qa

constit"tion based on the cosmopolitan right in so *ar as individ"als

and states, coe-isiting in an e-ternal relationship o* #"t"al inD"ences,

#ay be regarded as citiCens o* a "niversal state o* #an+ind ius

cosmopoliticumQ ())8, 7;/5$ &ne co"ld conceive o* the @nited

%ations harter and the vario"s onventions as an international

constit"tion based on cos#opolitan ideals wherein the states

the#selves are citiCens o* this E"niversal state o* #an+ind$F This

potentially gives the @nited %ations the legiti#acy and a"thority to

legislate the "niversal +ingdo# o* ends *ro# a cos#opolitan

viewpoint$

The con*lict between these two ideals is o*tenti#es where we

*ind arg"#ents over the Responsibility to Protect$ The Kantian ideal o*

cos#opolitanis# and "niversal #orality clashes with the

co##"nitarian concept that ideals and #orality are derived *ro#

co##"nities and there*ore valid in their own way within the

co##"nity$ =hat RtoP does whether intentionally or not by "sing

"niversal #orality is to assert the validity or s"pre#acy o* one

co##"nity ideal over another, and asserts that that co##"nity is the

largest one, i$e$ h"#anity$ Many aspects o* RtoP re0"ire the coercive

assertion o* "niversal nor#s o* #orality "pon discrete political

co##"nities across the world$ 9ven tho"gh proponents so#eti#es

address these concerns, they do not o*ten la#ent the#$ By b"ilding


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their arg"#ent *or prevention "pon the *o"ndation o* a "niversal val"e

syste# the cos#opolitan RtoP proponents in*er the s"periority o* their

val"e syste# which then necessarily replaces the val"e syste# o* the

co##"nities "pon which they plan to en*orce their


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"niversal #orality$ In this sense the potential destr"ction o* co##"nity

val"es and c"lt"res as a byprod"ct o* atrocity prevention can be seen

as a necessary cas"alty in the battle *or the acceptance o* the

Responsibility to Protect$

Norm Development

The eval"ation o* RtoP re0"ires a disc"ssion o* how nor#s

develop in international law *ro# a theoretical and practical

perspective$ So#e o* #ost i#portant #ilestones *or analyCing the

develop#ent o* RtoP as a nor# are Rwanda as a case st"dy, the

A*rican @nion onstit"tive Act o* 8


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behavior *or actors with a given identityF 8


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denition, and all nation/states in the international co##"nity o*

states by a #"ch broader, cos#opolitan de*inition$ Bella#y e-pands

"pon this concept *"rther with direct re*erence to RtoP

The test o* whether pillars two and three are properly callednor#s is the e-tent to which there is a shared expectationthat ( govern#ents and international organiCations wille-ercise this responsibility, that 8 they recogniCe a d"ty andright to do so, and that 7 *ail"re to act will attract criticis#*ro# the society o* states$ 8


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beco#e e#bedded in the practice o* legalityF ($ Ta+ing these

criteria into consideration,

Br"nne and Toope direct their analysis towards the Responsibility toProtect and

4 I$e$ there is a lac+ o* specific prescriptions or applications o* the nor#in practice$


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"lti#ately concl"de that the nor# *alls short on the legality criteria

o* Egenerality, clarity, consistency, and constancy over ti#e,F and

Einconsistent practiceF 8


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In his st"dy o* the ass"#ed legal nat"re o* RtoP, 9++ehardStra"ss writes, Eno

new collective legal obligation has been created by RtoP$ Instead, the

responsibility o.ers an opport"nity to i#prove the i#ple#entation o*

e-isting legal nor#sF Stra"ss 8


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new international nor# it #ay provide a #echanis#s by which we

#ay #ore e**ectively carry o"t and en*orce the e-isting nor#s this is

addressed *"rther in the *inal section on "rrent Perspectives$ Stra"ss

also notes in his st"dy's concl"sion that opinion 'uris* #ay solidi*y the

responsibility as a legal nor# over ti#e as #ore and #ore legal

scholars and international legal bodies li+e the I #a+e r"lings on its

en*orce#ent and co"ntries believe they are obliged to en*orce it$ RtoP

in this sense is not #eant to provide a new nor#, per se, b"t to

enhance the e**ectiveness o* pree-isting laws and nor#s thro"gh a

rede*inition o* what sovereignty has

beco#e which brings with it its own set o* proble#s as is shown laterin the wor+$

The o##ission believes they have *o"nd a nor# > that is, the

nor# that states are not allowed to do whatever they please to and

with their pop"lations whilst hiding behind the shield o* sovereignty$

This nor# is perhaps de#onstrable to a certain degree > it can be

shown by the vario"s onventions and Protocols that certain acts

when perpetrated by states trigger certain erga omnes obligations$

+rga omnes re*ers to an obligation that a state has towards the entire

international co##"nity$ The o##ission then clai#s, EThis basic

consens"s implies that the international co##"nity has a

responsibility to act decisively when states are "nwilling or "nable to

*"l*ill these basic responsibilities e#phasis #ineF ;$ It

wo"ld be correct to say that the IISS in this doc"#ent has s"ccess*"llye-plained


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; E&pinio 1"ris denotes a s"b1ective obligation, a sense on behal* o* astate that it is bo"nd to the law in 0"estion$ !ee I Stat"te, Article7?(b the c"sto# to be applied #"st be Jaccepted as law'$=hether the practice o* a state is d"e to abelief that it is legally obliged to do a partic"lar act is di**ic"lt to proveob1ectivelyFLegal In*or#ation Instit"te 8


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what the cri#e is and convinced "s that it is, indeed, a cri#e according

to international law$ This is de#onstrated by precedent on atrocities

li+e genocide and the general evol"tion o* sovereignty nor#s over

ti#e$ !owever, they have not, as they clai#, s"ccess*"lly convinced "s

what the #echanis#s *or preventing andor p"nishing that cri#e

sho"ld be, nor who is responsible *or carrying o"t said #eas"res i* and

when it is decided that they are necessary$ They have also not been

convincing that sovereignty has been s"ccess*"lly redened thro"gh

these nor#ative develop#ents, b"t #erely that so#e responsibilities

#ay e-ist$ The

o##ission has certainly o.ered s"ggestions and opinions howevertheir assertion

o* the nor#ative stat"s o* this responsibility is pre#at"re$

The international co##"nity has shown so#e hesitation in

accepting the Responsibility to Protect as an international legal nor#$

This hesitance is re*lected in the lang"age o* Resol"tions and #anner

o* disc"ssion s"rro"nding #ilitary actions and h"#anitarian

interventions worldwide$ As Bella#y notes, Ea paragraph indirectly

re*erring to RtoP was deleted *ro# a dra*t o* Resol"tion (5) 8


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a portion o* the international co##"nity wishes to avoid legiti#iCing

and nor#aliCing RtoP as an international legal principle$ There are a

n"#ber o* proposed reasons *or this observable behavior, which is

e-plored #ore in depth thro"gho"t the wor+$ =hatever the act"al

reason, observation


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strongly s"ggests that #any nations are rel"ctant to see the

positive nor#ative develop#ent o* RtoP or at least develop#ent o*

its co#pliance/p"ll$

Responsibility to Protect nor#s involve #ore than 1"st theconsideration o*

direct #ilitary intervention or even 1"st the actions o* states and

international organiCations$ The association with RtoP sho"ld also be

preventative diplo#acy and nor# adoption as opposed to #ilitary

action Bella#y 8


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In what is perhaps a #ore acc"rate senti#ent, Bella#y concl"desin his 8


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incredibly acc"rate way to state the e.ect o* RtoP as a developing

nor#$ The Responsibility to Protect #ay not *acilitate or re0"ire action

in the way that so#e scholars and international actors want it to, b"t

it has denitely *acilitated a c"lt"re o* Enon/indi**erence$F hester#an

also re*ers to this concept, b"t in a slightly di**erent way when he

writes, Ethe tr"e signicance o* RtoP is not in creating new rights or

obligations to do Jthe right thing' rather, it is in #a+ing it harder to do

the wrong thing or nothing at allF 8


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the old =ar is instr"ctive *or loo+ing at the c"rrent path o* RtoP as a

policy tool in the @nited %ations$ The decade *ollowing the @niversal

6eclaration and onvention on the Prevention o* P"nish#ent o* the

ri#e o* 3enocide ill"strates the di**ic"lty o*


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adopting a nor# li+e h"#an rights in an environ#ent cons"#ed by

sec"rity and ideological di**erences L"c+ 8


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an e.ort to +eep *ro# legiti#ating the nor#, or they #ay be an

atte#pt to #aintain its legiti#acy by not applying it too widely$


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It is relatively sa*e to say that the entirety o* the Responsibility

to Protect is not considered to be a nor# that necessitates or re0"ires

certain behaviors or responses$ There are portions o* the IISS report

that have *o"nd a #eas"re o* widespread acceptance, s"ch as the

concept that sovereignty does not entail absol"te power to do as one

wishes, incl"ding co##itting genocide, with their own pop"lation$

This partial acceptance #a+es assessing the path o* RtoP's nor#ative

develop#ent a di**ic"lt tas+$ !ow RtoP is applied in present and *"t"re

cases, and how it develops in the @nited %ations will go a long way

towards revealing this develop#ent over ti#e$

Chapter 2: Central Issues Explored

Introduction

This chapter e-a#ines the central iss"es o* the Responsibility to

Protect as they relate to the #oral and legal *acets, as well as other

practical e**ects o* its adoption as an international legal nor# and its

applications$ The stat"s o* the Responsibility to Protect as a legal nor#

is still "nder 0"estion and "p *or review$ The "ncertain nat"re o* RtoP is

d"e to a n"#ber o* iss"es involved in its concept"aliCation and

i#ple#entation$ The central contentio"s iss"es s"rro"nding the

concept o* the Responsibility to Protect and its adoption as an

international legal nor# are related largely to a"thority, legality,

e**ectiveness and #orality > speci*ically the assertion o* val"e syste#s


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and the redenition o* sovereignty$ These iss"es are addressed brie*ly

in this introd"ction to provide conte-t and e-panded


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"pon s"bse0"ently in #ore depth thro"gho"t the st"dy cond"cted

here$ Brie*ly, these iss"es are nor# con*lict, indeter#inacy,

prevention, the redenition o* sovereignty, the Sec"rity o"ncil's

legiti#acy, the distinction between obligation and per#ission, the

potential ab"se o* intervention, and reconciling political will and state

interests$ The theoretical *o"ndation established in the previo"s

chapter allows "s to address the practical and legal iss"es inherent in

the potential en*orce#ent and adoption o* the Responsibility to

Protect$

The legal iss"es s"rro"nding RtoP are *airly clear and

straight*orward$ 9ssentially, the controversy s"rro"nds the nor#

con*lict between sovereignty and intervention$ Sovereignty is a well/

established nor# in international law and the *o"ndation o* the nation/

state international syste# in which we c"rrently *ind o"rselves$ Part o*

sovereignty has traditionally been the nor# o* non/intervention in

essentially do#estic a.airs, a concept enshrined in Article 8 o* the

@% harter$ The Responsibility to Protect is asserting its propositions

abo"t the 1"sti*ied "se o* *orce *or h"#anitarian intervention by

redening or altering the established sovereignty nor#s which the

IISS believes have changed over ti#e eno"gh to

1"sti*y this alteration$ This in t"rn creates a con*lict between the nor#sthat is

di**ic"lt to reconcile$ Related to this is the a"thority iss"e, i$e$ who or

what international body is responsible *or deter#ining whether or not


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these interventions are legiti#ate, and is that organiCation itsel* a

legiti#ate a"thority to #a+e s"ch a deter#ination


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Practically, RtoP s".ers *ro# the iss"es o* indeter#inate

#echanis#s *or its en*orce#ent, incl"ding prevention, and e**ective

en*orce#ent$ The triggers *or intervention are not well/established or

partic"larly well/dened, nor are the #echanis#s *or prevention and

reb"ilding$ G"rther#ore, it #ay be physically di**ic"lt to en*orce

prevention, reaction, and reb"ilding with the right a#o"nt o*

#an power and boots on the gro"nd$ These practical considerations

#a+e it di.ic"lt to #ove RtoP *ro# the real# o* theory to act"al

practice$ The resol"tion o* these iss"es is re0"ired i* RtoP is to beco#e

an e**ective nor# en*orceable by the international co##"nity$

The #oral iss"es s"rro"nding RtoP are so#ewhat less

straight*orward than the legal ones$ There are #oral i#plications

e#bedded in the assertion o* RtoP's protective h"#an rights principles,

and partic"larly so in the prevention principle o* RtoP > this iss"e is

in*or#ed largely by the disc"ssion on Theoretical Go"ndations in the

previo"s chapter$ The *"nda#ental #otivating agent o* RtoP is the

assertion o* "niversal principles o* h"#an rights and, to a lesser b"t

very real e-tent, de#ocratic and =estern val"e syste#s$ Intervention

in the sovereign a**airs o* other nations

not only has legal i#plications, b"t #oral ones as well$ S"chinterventions i#ply the

hierarchical ordering o* val"e syste#s and types o* govern#ent$ The

assertion o* cos#opolitan ideals is *o"nd strongly in the IISS report

and the #echanis#s *or prevention$ Again, part o* the ob1ective o*


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this wor+ is to shine a light on the #echanis#s by which concepts

that are generally considered to be EgoodF operate and deter#ine

whether those #echanis#s are e0"ally good by a s"b1ective


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#eas"re$ The disc"ssion o* the #oral iss"es o* RtoP is #eant to

acco#plish this end$ The disc"ssion on #orality here, as opposed to

the theoretical disc"ssion o*

#orality in the previo"s chapter, is cond"cted by #a+ing directre*erence to the

co"ntries and peoples being a.ected by RtoP as opposed to #ore

general theoriCing abo"t the so"rce o* #orality in international society$

@lti#ately, the Responsibility to Protect is Edependent on the

do#inance o* partic"lar ethical viewpointsF Morris 8


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e#pirically proven, #erely stated$ The sovereignty nor# has a

longstanding history, the essentials o* which are provided in the rst

chapter, and the redenition o* it p"ts RtoP into conDict not only with

the sovereignty nor#s b"t


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other interrelated nor#s$ The *ollowing section e-plores this

con*lict between nor#s$

The tension between nor#s within the @nited %ations is relativelyclear$

Ra#esh Tha+"r writes, Ethe controversy over h"#anitarian

intervention arises *ro# a conDict between di.erent conte#porary

nor#s, prod"cing nor#ative incoherence, inconsistency, and

contestation$F Tha+"r also states that this inherent tension e-ists

within the @nited %ations harter itsel*, as well, and is characteriCed

by Einherent tension between the intervention/proscribing principle o*

state sovereignty and the intervention/prescribing principle o* h"#an

rightsF 8


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the direct sovereign 1"risdiction o* a state$ Both nor#s clai# to e-plainthe sa#e

concept or concept"al *ra#ewor+ and dene it in #"t"ally e-cl"sive

ways$ Perhaps #ore acc"rately, RtoP atte#pts to replace the

traditional denition o* sovereignty


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with its own$ The traditional nor# o* sovereignty is "ndo"btedly

#"t"ally e-cl"sive in its per#issions and prohibitions with the RtoP

nor#, thereby signaling a nor# con*lict$ According to the denitions

provided by Hranes this is a contradictory con*lict between per#ission

and prohibition$ I* attaining the reg"lation o* behavior in the

international syste# is i#paired by a per#ission inco#patible with a

prohibition i$e$ yo" #ay and yo" #ay not, or a per#ission

inconsistent with an obligation yo" #ay, b"t yo" #"st, these nor#s

are by denition in conDict$ This does not #ean, however, that both

nor#s cannot e-ist at the sa#e ti#e even in the case o* their #"t"al

e-cl"sivity Ea nor# con*lict Jis not a logical contradiction and cannot

even be co#pared to a logical contradiction', as it is per*ectly possible

*or

two con*licting nor#s to occ"r within one and the sa#e legal syste#FHranes 8


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violatedF Hranes 8


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violation can even ta+e the *or# o* activities below the

threshold o* o"tright #ilitary intervention$

=ith respect to the "st =ar triggers *or intervention disc"ssed inthe

6ening section in hapter (, the o##ission provides a n"#ber o*

sit"ations that wo"ld satis*y the 1"st ca"se re0"ire#ent *or

intervention$ The rst *o"r e-a#ples provided are already covered by

international treaties5 $ The second two, however, are less e-plicitly

legal with respect to international legal precedent, and rely #"ch

#ore heavily "pon the redenition o* sovereignty as responsibility

o"tlined in the doc"#ent$ &ne is Estate collapseF that res"lts in civil

war, etc$, and the other is Eoverwhel#ing nat"ral or environ#ental

catastrophesF IISS 8


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sel*/govern#ent is connected to so#e *or# o* sovereignty, andthis in t"rn

5 The ()4? 3enocide onvention, large scale loss o* li*e, ethniccleansing, syste#atic +illing, acts o* terror, syste#atic rape, and the3eneva onventions and Additional Protocols IISS 8


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sho"ld ca"tion against any revived enth"sias# *or benigni#perialis# whether in the *or# o* h"#ane resc"e or

advancing de#ocracy$ 8


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4444

The precision o* denitions and concepts contained within the

lang"age o* the Responsibility to Protect are vital to its s"ccess*"l

adoption$ The *act o* this indeter#inacy has been disc"ssed,

however this section addresses the iss"es created by the

indeter#inate nat"re o* a n"#ber o* the concepts contained within


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RotP$ This is essentially an iss"e o* operational e**ectiveness as

opposed to a"thoritative e**ectiveness which is addressed later, i$e$

in deciding precisely what sho"ld be done to stop atrocities and by

who# rather than whether or not so#ething sho"ld be done to stop

the#$ This is "s"ally re*erred to in ter#s o* the second and third

pillars o* RtoP, i$e$ international responsibility and #ilitary

intervention$

In si#ple ter#s, this indeter#inacy is "s"ally ill"strated by theidea that

while #ost international actors believe that Eso#ethingF sho"ld be

done in the *ace o* atrocities Pillar I, no one can see# to agree on

what that so#ething sho"ld be Pillars II and III$ =ith respect to the

lac+ o* intervention in 6ar*"r despite a *airly widespread

deter#ination that Eso#ethingF sho"ld be done, 6e =aal writes, Every

little attention was paid to the concept o* operations and strategic

goal$ This e#phasis reDects the *oc"s and content o* the contin"ing

debate on the responsibility to protect, which has concentrated on

when and whether to intervene, not how to do so and with what ai# in

#indF 8


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9ven allegedly positive applications o* RtoP or h"#anitarian

interventions do not precisely address this indeter#inacy iss"e$

Bella#y writes, Ewhile the o"ncil's response to the crises in Ute

d'Ivoire and Libya #ight re*lect a new politics o* protection, it is

clearly #"ch easier to agree on the principle that people sho"ld be

protected *ro# serio"s cri#es than it is to agree on what to do in

speci*ic circ"#stancesF 8 a#ong these re0"ire#ents are

"s"ally #entioned Esla"ghter, syste#atic tort"re, #ass detention *or


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an indenite period "nder deplorable conditions, and syste#atic and

deep violation o* #inority rights,F etc$ The e.ort is an honorable and

necessary one *or the acceptance o* RtoP$ !owever, the *"tility o*

these denitions once again beco#es clear > they are si#"ltaneo"sly

too narrow and too broad, i$e$ indeter#inate$ They


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also "s"ally incl"de a#ong their reasoning the ever/present concept

o* Ei##inentF danger > a concept which itsel* lac+s a clear or widely/

accepted denition$ @ntil there e-ists a clear, widely/accepted

denition o* these concepts RtoP will be contin"ally hindered$

Prevention

The prevention principle o* the Responsibility to Protect is

essentially abo"t enco"raging and *acilitating respect *or h"#an rights

abroad in order to lower the chances o* atrocities in cases o*

govern#ent *ail"re, civil war, etc$ 9.ective prevention is a E+ey

ob1ectiveF o* the International o##ission on Intervention and State

Sovereignty$ This e**ective prevention consists in large part o* good

Eearly warningF capabilities e.ective instit"tional *ra#ewor+s *or

analyCing and acting "pon in*or#ation, a good Epreventive toolbo-,F

and Epolitical willF IISS 8


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prevention,F clearly re*lect de#ocratic val"es and the c"lt"ral, social,

and econo#ic pre*erences o* the Girst =orld policy #a+ers$ Along with

the toolbo-, these root ca"se prevention #eas"res are presented as

political, econo#ic, legal, and #ilitary$


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In the real# o* political prevention they state, Ethis #ight involve

de#ocratic instit"tion and capacity b"ildingF 8 this is

precisely why so#e co"ntries cry neo/i#perialis# and are s+eptical o*

RtoP as si#ply another #ethod *or large, =estern co"ntries to

intervene in s#aller developing nations and change their policies to be

#ore =estern$ The g"idelines *or econo#ic root ca"se prevention are

incredibly co#prehensive, essentially advocating *or a

*"ll/scale conversion to *ree #ar+et capitalis#:

This #ight involve develop#ent assistance and cooperation toaddress ine0"ities in the distrib"tion o* reso"rces oropport"nities pro#otion o* econo#ic growth and opport"nity


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better ter#s o* trade and per#itting greater access toe-ternal #ar+ets *or developing econo#ies enco"ragingnecessary econo#ic and str"ct"ral re*or# and technical

assistance *or strengthening reg"latory instr"#ents andinstit"tions$ IISS 8


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These econo#ic g"idelines are even #ore nor#atively e-pressive

than the political ones$ By spea+ing o* what this prevention E#ightF

involve, the o##ission avoids saying that prevention essentially

involves s"ch re*or#s$ !owever hedged these prescriptions are, they

clearly reDect a certain belie* syste# abo"t what *or# o* govern#ent

and what *or# o* econo#ic syste# is #ost bene*icial$

Gor their part the IISS does recogniCe the inherent coercive

nat"re o* preventative #eas"res$ They point o"t that so#e nations

*ear EinternationaliCationF o* iss"es which #ay in ti#e lead to

intervention and that they #ay be right to *ear this possibility$ They

o**er two EanswersF to this concern

The *irst is *or international policy #a+ers to be sensitive to it: torecogniCe that #any preventive #eas"res are inherently

coercive and intr"sive in character, to ac+nowledge that *ran+ly,and to #a+e a very clear distinction between carrots and stic+s,ta+ing care always in the *irst instance to *ashion #eas"res thatwill be non/intr"sive and sensitive to national prerogatives$ B"tthe second answer is one *or the states the#selves: those whowish to resist e-ternal e**orts to help #ay well, in so doing,increase the ris+ o* ind"cing increased e-ternal involve#ent, theapplication o* #ore coercive #eas"res, and in e-tre#e cases,e-ternal #ilitary intervention$ IISS 8


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4747

cooperate with prevention e.orts then they are potentially bringing

#ore intervention and intr"sion "pon the#selves$ This state#ent

see#s #"ch #ore threatening than it does e-planatory or

e#pathetic to the c"lt"ral and political sensitivities o*


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intervention > it reads #ore as a warning than an ass"rance$ It also

i#plies, as does the general lang"age o* prevention, that so#e

#anner o* Eg"iltF has been pre/ established and 1"dg#ent passed on a

n"#ber o* aspects ranging *ro# political to econo#ic$ This #ay be

where we cross the line *ro# prevention to pree#ption$ This is partly a

re*lection o* the indeter#inacy proble#, i$e$ how a nation is

deter#ined

to be Eat ris+F and there*ore re0"ire this root ca"se prevention$ &n the

whole there is an i#plication o* s"periority > an i#plication that the

@nited %ations +nows what is best *or its #e#ber nations who e-hibit

Eris+ *actorsF *or atrocities$ 9ssentially, EThis *or# o* preventive

intervention wo"ld instit"te co#prehensive =estern reg"lation "nder

the threat o* #ilitary intervention i* non/=estern states were

J"nwilling or "nable to cooperate'F handler 8


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the potentially o.ending nation is *orced to co#ply with s"rveillance

and assess#ent #eas"res or *ace negative political conse0"ences in

spite o* the *act that an in*raction has yet to ta+e place, or perhaps

never will$ These concerns i#ply that prevention can be a


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4848

violation o* sovereignty nor#s by itsel* even be*ore act"al #ilitary

intervention$ 9dward L"c+ agrees that Eso#e aspects o* str"ct"ral

prevention co"ld be 0"ite intr"sive, 1"st as are international

develop#ent and peaceb"ilding progra##esF 8


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RtoP are concerned$ The p"rview o* RtoP is there*ore dependent on

the loss o* li*e variable, and not to those things that #ay lead to it$

It is the 1ob o* the prevention portion o* RtoP to s"pport and

#aintain


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5050

good relations with de#ocratic regi#es to potentially +eep co"ps *ro#

happening or perhaps be able to ad#inister aid swi*tly in the event

that s"ch aid is re0"ired$ The distinction between what does in *act

and what #ay in theory lead to atrocities is an i#portant one that

highlights the di**ic"lt nat"re o* prevention$

These di**ic"lties are heightened by the relatively non/e#piricalway in

which the necessity *or preventative #eas"res can be interpreted$ Intheir

S"pple#entary Hol"#e to their *"ll 8


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5151

The stated goal o* prevention, to prevent the occ"rrence o*atrocities li+e

genocide and ethnic cleansing, is an ad#irable and desirable one$

!owever, the #echanis#s *or achieving that end are woe*"lly

inacc"rate, terribly restrictive and ethnocentric, essentially

establishing g"ilt prior to any cri#es$ The establish#ent o*


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5050

this g"ilt potentially opens the door *or *"ll/scale conversion to =estern

de#ocracy and *ree/#ar+et capitalis#, instit"tional arrange#ents that

are s"pposed to prevent atrocities according to the o##ission b"t

witho"t showing an act"al ca"sal relationship$ The advance#ent o*

these str"ct"res re*lects the interests o* the privileged and power*"l

nations #a+ing and en*orcing the policies on an international level$

Prevention #ay e.ectively a#o"nt to threat diplo#acy in a practical

sense$ Applying prevention presents a wide array o* iss"es *or RtoP$

The Redefinition of Sovereignty

&ne o* the central propositions contained in the 8


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5252

=estphalian characteristics$ =eiss clai#s, EIn addition to the "s"al

attrib"tes o* a sovereign states that st"dents enco"nter in international

relations and law co"rses in the ()74 Montevideo onvention > people,

a"thority, territory, and independence

> there is another: a #odic"# o* respect *or h"#an rightsF =eiss et$

al$ 8


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operation o* the RtoP principle and its potential acceptance as a nor#,

seeing as the principle relies on a ree-a#ination or redenition o*

sovereignty in order to


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*"nction$ In light o* the hereto*ore/e-a#ined denitions o*

sovereignty and their s"bstantial precedent, we co#e now to the

de*inition o* sovereignty as it is contained in the pre#ier RtoP

doc"#ent, the 8


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5353

conditions "nder which the principle o* non/ intervention #ay be

overridden in the na#e o* protecting h"#an rights, and less ti#e

answering the *"nda#ental 0"estion o* why there is a prospective


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5454

international responsibility to protectF 8


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8


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5454

basis across the globe, however we "se sovereignty as a shield

when it co#es to responsibility to halt ab"ses$ The point is well

ta+en$

Perhaps the #ost di**ic"lt iss"e with the rede*inition o* sovereignty as

responsibility is a concept"al one$ The redenition o* sovereignty is

based "pon the ass"#ption that an "nspeci*ied yet s".icient n"#ber

o* states have developed val"es and practices si#ilar to those held by

the =estern nations in order to #a+e the# co##on practice, i$e$ the

shared e-pectation$ The concept is thereby raised "p to a "niversal,

cos#opolitan level$ The "niversal approach states that all h"#ans are

or sho"ld be a.orded the sa#e basic h"#an rights inso*ar as the

concept has developed in international law$ The concept itsel* is

inherently and *"nda#entally "niversal, hence the cos#opolitan

theoretical perspective$ This allows the logic o* #"ltilateral

h"#anitarian intervention to wor+, b"t that logic also re0"ires that the

preceding assertion is indeed tr"e$ 9ven i* the presence o* a nor#ative

change co"ld be de#onstrated, it #ay or #ay not be #orally or

ethically correct 1"st beca"se it is

a nor#$ &nce R8P ascends to the level o* an en*orced international lawor perhaps

even a lower threshold s"ch as nor#ative acceptance, ass"#ing it

ever does, does it a"to#atically beco#e #orally 1"stied 6o the

nor#s, val"es, and practices contained therein beco#e "niversal in

practice, or did they beco#e accepted beca"se they are "niversal


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=hat does this #ean *or #oral relativis# and the co##"nitarian

perspective This is especially proble#atic beca"se R8P rests "pon

the logic that these rights are "niversal in the rst place, b"t they

have to beco#e accepted as a nor# to hold that clai# as valid$


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5656

Ale- Bella#y echoes the clai#s o* #any pro/RtoP scholars when

he writes, ERtoP is "niversal and end"ring V it applies to all states, all

the ti#e$ Gro# this perspective, there is no 0"estion o* whether RtoP

Japplies' to a given sit"ation beca"se RtoP does not arise and

evaporate with circ"#stancesF 8


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sovereign d"ties, i$e$ protecting their pop"lations *ro# genocide and

ethnic cleansing$ The idea p"t *orward by RtoP proponents is that

RtoP is


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strengthening sovereignty by Ehelping States to #eet their core

protection responsibilitiesF 6eller 8


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5757

This 0"otation s"ggests that the very co"ntries whose sovereignty

RtoP p"rports to strengthen #ay see RtoP as a tool that wea+ens

sovereignty$ The above 0"ote also


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5858

highlights another i#portant iss"e with respect to the role o* the

Sec"rity o"ncil as the "lti#ate a"thority when see+ing approval *or

intervention$

3reat powers are essentially i##"ne to the sa#e e-ternalresponsibilities

that bind s#aller powers with the redenition o* sovereignty$

G"rther#ore, as is shown in the *ollowing section, coercive action or

even si#ply the deter#ination o* violations against any per#anent

#e#ber o* the @nited %ations Sec"rity o"ncil wo"ld be, in a word,

i#possible$ In this respect, the Responsibility to Protect only applies to

nations who do not have the power to protect the#selves *ro#

o"tside inter*erence$ It is only the traditional concept o* sovereignty

that potentially protects s#all nations *ro# this +ind o* inter*erence$

Legally, this essentially #eans that there is no E*airF way to apply

RtoP concepts and carry o"t interventions that still respects

sovereignty$

The Security Council

The central a"thority 0"estion regarding the i#ple#entation o*

the Responsibility to Protect is who or what body or nation has the

a"thority and legiti#acy to a"thoriCe an intervention based on RtoP

principles G"rther#ore, when #ight a body besides the legiti#ate

one #a+e a deter#ination o"tside o* it and still have it be

legiti#ate This section e-plores that legiti#ate a"thority, the

Sec"rity o"ncil, and analyCes 1"st how legiti#ate that a"thority is,


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so#e o* its challenges, and so#e o* the iss"es created by the

adoption o* the Responsibility to Protect$ This incl"des so#e

disc"ssion o* the legiti#acy iss"es created by the veto


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held by the Per#anent Give #e#bers o* the Sec"rity o"ncil P;

and so#e o* the opinions on possible re*or#s$

The lion's share o* the literat"re on RtoP asserts that the onlylegiti#ate body

to #a+e deter#inations on the en*orce#ent o* the Responsibility toProtect is the

@nited %ations Sec"rity o"ncil Bella#y 8


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str"ct"res // altho"gh s"ch str"ct"res #ay also be agentsQ ())8, ;8$

The @nited %ations as a *ocal point allows individ"als as agents to

assert their #oral conceptions in line with Kant's E"niversal +ingdo#

o*


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ends,F and in doing so the organiCation itsel* beco#es an agent as it

contin"es to e#body the will o* the individ"als and nation/states that

#a+e it "p$ Ian !"rd denes legiti#acy as Ean actor's nor#ative

belie* that a r"le or instit"tion o"ght to be obeyed,F and notes that

Eits presence changes the strategic calc"lation #ade by

actors abo"t how to respond to the instit"tion$F G"rther#ore, !"rdbrea+s down the

perception o* legiti#acy, which can be e-tended to enhance the

instit"tion, into three contrib"ting *actors *avorable o"tco#es,

*airness, and correct proced"re 8


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Asse#bly sho"ld consider the "se o* the @niting *or Peace Resol"tion

in sit"ations o* o"ncil deadloc+ d"e to "se o* the veto$

@se o* the veto is not only a practical obstacle b"t a political one

as well, with co"ntries li+e Algeria *eeling there is a de#ocratic decit

in the o"ncil that #ay


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threaten the legiti#acy o* their deter#inations$ The IISS recogniCedthis in their

8


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proposals that have atte#pted this are vehe#ently opposed by the

P;$

It is not only the veto proble# that represents obstacles *or

Sec"rity o"ncil legiti#acy$ ritical Legal Theory scholars believe that

#ainstrea# international


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relations and international law are pro#oting =estern ideology and

ignoring the Edeploy#ent o* powerF when deter#ining the legiti#acy

and #orality o* nor#s AlvareC 8


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sa#e way by the r"les it en*orces This #ay wor+ *or a national

govern#ent's #onopoly on coercion, however the @nited %ations

ideally operates on the principle o* the e0"ality o* its #e#bers Gisher

8


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G"rther#ore, as previo"sly noted, RtoP relies on the do#inance

o* partic"lar ethical viewpoints to *"nction there*ore the power

dyna#ics o* the veto/wielding #e#bers o* the Per#anent Give

#e#bers o* the Sec"rity o"ncil are i#portant *or "nderstanding RtoP

develop#ent$ As Morris notes, EA realign#ent in global power in

*avo"r o* those nor#atively predisposed towards sovereign rather than

individ"al rights is li+ely, there*ore, to a"g"r badly *or R8PF 8


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This iss"e is also practically related to the proble#s inherent in the

application o* prevention and establish#ent o* g"ilt$ =hen loo+ed at

in this conte-t it is clear that


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intervention has been deter#ined to be 1"stied a priori, and its

acceptance by the o"ncil is #erely a b"rea"cratic iss"e or *or#ality,

i$e$ it is a *oregone concl"sion$ RtoP has b"ilt into it a n"#ber o*

potential #echanis#s to s"bvert the o"ncil, while at the sa#e ti#e

the doc"#ent and other international relations scholars state that the

o"ncil is the #ost appropriate *or"# *or deciding severity,

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