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SID: 1118307 UNDERGRADUATE MAJOR PROJECT IN LAW CODE: MOD000058
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ANGLIA RUSKIN UNIVERSITY
Dissertation Declaration
Title of Award
BACHELOR OF LAWS (LLB)
Date
11TH DECEMBER 2015
SID Number
1118307
Name of Supervisor
DR. ALDO ZAMMIT BORDA
Title of Dissertation
THE USE OF FORCE AND ITS RECENT DEVELOPMENTS:
HUMANITARIAN INTERVENTION AND RESPONSIBILITY TO PROTECT.
Word Count
9, 971
DECLARATION: I declare that the above work is my own and that the material
contained herein has not been substantially used in any other submission for an academic
award.
Signed: LESLEY ORERO Date: 11/12/2015
All dissertations, projects etc., submitted as part of an assessment process for a degree become
University property once handed in, and are not normally available to be returned. It is
therefore recommended that candidates retain a personal copy. The submitted copy may be
retained by the University for Reference by others.
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SUPERVISOR CONTACT LOG
Date and time of
Meeting
Notes Supervisor’s
initials
16/07/2015 11am-12pm
Discussed dissertation topic and how to narrow
it down.
11/09/2015 1pm-2pm
Extensive discussion on plan and procedure for
research.
15/11/2015 Email
Clarification on certain points on the content of
the abstract and introduction.
16/11/2015 12pm-1pm
Discussion of progress and more insight into
chapter 5 and conclusion. Emailed me a
proposed article to read on Responsibility to
Protect.
08/12/2015 1pm-2pm
Discussed difficult areas; literature review,
methodology and conclusions. Proposed
corrections and alternative ways to approach
the areas.
This form is to be submitted for signature by your supervisor on every occasion that you
consult him or her regarding your dissertation. The completed log must be submitted with
your dissertation.
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Contents Abstract. ................................................................................................................................................. 4
1. Introduction. ...................................................................................................................................... 5
1.1 Brief outline and the importance of the study of the Use of Force. .............................................. 5
1.2 Literature Review. ......................................................................................................................... 8
1.3 Methodology. ................................................................................................................................ 9
1.4 Dissertation Outline. ................................................................................................................... 10
2. The Use of Force. ............................................................................................................................. 11
2.1 Defining the Use of Force and the origin of the law. .................................................................. 11
2.2 The law on the Use of Force. ...................................................................................................... 13
3. Exceptions to the Rule. ................................................................................................................... 17
3.1 Self-defence. ............................................................................................................................... 17
3.2 United Nations Security Council Authorisation. ........................................................................ 21
4. Humanitarian Intervention. ........................................................................................................... 26
4.1 Defining Humanitarian Intervention. .......................................................................................... 26
4.2 Legality and legitimacy of Humanitarian Intervention. .............................................................. 27
5. Responsibility to Protect (R2P). ..................................................................................................... 33
5.1 Brief background and evolution of the Responsibility to Protect. .............................................. 33
5.2 Responsibility to Protect in action. ............................................................................................. 35
5.3 The future of Responsibility to Protect ....................................................................................... 37
6. Conclusion. ...................................................................................................................................... 42
7. Bibliography. ................................................................................................................................... 45
7.1 Primary Sources. ......................................................................................................................... 45
7.1.1 Case Law. ............................................................................................................................ 45
7.1.2 United Nations Documents. ................................................................................................ 45
7.2 Secondary Sources. ..................................................................................................................... 46
7.2.1 Books. .................................................................................................................................. 46
7.2.2 Journal Articles .................................................................................................................... 47
7.2.3 Reports ................................................................................................................................. 49
7.2.4 Websites and Blogs .............................................................................................................. 49
7.2.5 Newspapers .......................................................................................................................... 51
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THE USE OF FORCE AND ITS RECENT DEVELOPMENTS:
HUMANITARIAN INTERVENTION AND RESPONSIBILITY TO PROTECT.
Abstract.
International law remains a developing and dynamic subject. The aim of this thesis is to
demonstrate that, the set law on the use of armed force under international law is progressively
evolving with the contemporary world it attempts to govern. The law illustrates development
not only in its prohibition but also in its exceptions such as self-defence and United Nations
(UN) authorisation, with regards to the new threats faced in the world at present. This study
presents a critical analysis on this area of international law that has resulted into the concepts
of humanitarian intervention and responsibility to protect (R2P). The analysis will show that
these recent developments are yet to become law by the standards on which international law
is judged. Nonetheless, they have a huge impact on the law itself and show a gradual shift in
the status quo. Thus a development in the law over time.
The effectiveness of international law is challenged by some of its fundamental principles such
as state sovereignty, human rights and security which have influenced the development of
humanitarian intervention and R2P. Indeed, the existing state of affairs driven by an interest in
supporting collective rights through international organisations; which monitor and identify
various violations; leaves no room for the law to remain docile. Yet, some situations have set
a crucial reminder on how international law is inadvertently affected by geopolitics. This is
evidently illustrated by the dispute between the powerful states, that stress on the importance
of an alliance of great powers for the maintenance of international peace and the smaller states
which rely more upon the juridical world institution. This tussle between power and the law is
demonstrated by the analysis of the development of the prohibition on the use of force.
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1. Introduction.
1.1 Brief outline and the importance of the study of the Use of Force.
The use of force is an integral part of international law formidable as it may be. International
law itself, could be argued to be inevitably and irrevocably imbued with a general way of
thinking that is both time and place specific.1 Due to the concept of sovereign equality,
regulation of the use of force at an international level lacks exclusive control. International law
relies on the cooperation of states in order to limit the use of force with scarcely any
enforcement mechanism to make sure its rules are complied with. This thesis will explore and
critically analyse the law and its development in the concepts of humanitarian intervention and
responsibility to protect (R2P) in relation to the use of force. Terrorism and violence by non-
state armed groups; such as Daesh2; is also a growing area of importance in international law.
However, this has not been covered in this dissertation which sort to mainly focus on use of
force by states. To achieve a coherent understanding on the law and its development, the thesis
will explore treaties, cases, case studies as well as academic comments and arguments, reaching
a conclusion on why the law is unenforceable resulting to its development through the above
concepts.
The use of force is a key area of international law due to the devastating impact it has on society
as a whole. Since the end of the First World War in 1918, there has been a positive attempt to
substantially stop the resort to the use of armed force. Even so, from the end of the Second
World War in 1945, there have been over 300 internal and international armed conflicts3 such
as the Rwandan genocide, the Libyan and Syrian crises which are a few in recent history.
1 Wade Mansell and Karen Openshaw, International Law: A Critical Introduction (Hart Publishing 2013) 1. 2 Daesh - an acronym for an Arabic variation of the group’s name: al-Dawla al-Islamyia fil Iraq wa’al Sham. Alan Yuhasin, ‘US general rebrands Isis 'Daesh' after requests from regional partners’ The Independent (New York, 19 December 2015) < http://www.theguardian.com/world/2014/dec/19/us-general-rebrands-isis> accessed 10 December 2015. 3 Gideon boas, Public International Law: Contemporary Principles and Perspectives (Edward Elgar Publishing 2012) 307.
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Taking Syria as an example, it is currently said to be the ‘most painful and tragic violent
conflicts of the twenty-first century’4, making it one of the most severe development and
humanitarian disasters in recent history. It has engaged the international community in what
began as a civil war in 2011 and has since escalated into a full-fledged war. There have been
approximately 200,000 people killed; both combatants and civilians; and 7.6 million internally
displaced people.5 There are four million refugees under the UN mandate, making it the largest
refugee population and an estimation of 4.27 million by the end of 2015. As a result, the worst
exodus since the Rwandan genocide in 1994.6
The graph below shows the most visible elements of the Syrian crisis. The drastic influx of
refugee status indicates not only the ‘destruction of its economic, human, cultural and social
capital but also the disputation of its national identity’7.
4 Syrian Centre for Policy Research, Syria: Squandering humanity (Socioeconomic Monitoring Report on Syria, May 2014) 45. 5 Global Conflict Tracker, ‘Civil War in Syria’ (Council on Foreign Relations, updated 3 December 2015) <http://www.cfr.org/global/global-conflict-tracker/p32137#!/?marker=6 > accessed 3 December 2015. 6 Mercy Corps, ‘Quick facts: What you need to know about the Syria crisis’ (Mercy Corps, updated 7 October 2015) <https://www.mercycorps.org/articles/turkey-iraq-jordan-lebanon-syria/quick-facts-what-you-need-know-about-syria-crisis> accessed 3 December 2015. 7 Syrian Centre for Policy Research, Syria: Squandering humanity (Socioeconomic Monitoring Report on Syria, May 2014) 7.
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Figure 1.1 Graph of Syrian Refugee Crisis Development.8
In Turkey, Lebanon and Jordan, asylum seekers are expected to increase by almost a million
in 2015, reaching 4.7 million by December.9 Although it started as a civil war, the armed
conflict in Syria has now become an international issue because the onus is on the international
community to deal with ‘economic degradation, mass unemployment and poverty, social
injustice and global marginalisation that has alienated the vast majority of people from their
habitat, communities, employment, businesses and means of living, leaving millions of men,
8 Mercy Corps, ‘Quick facts: What you need to know about the Syria crisis’ (Mercy Corps, updated 7 October 2015) <https://www.mercycorps.org/articles/turkey-iraq-jordan-lebanon-syria/quick-facts-what-you-need-know-about-syria-crisis> accessed 3 December 2015. 9 Gregor Aisch, Sarah Almukhtar, Josh Keller and Wilson Andrews, ‘The Scale of the Migrant Crisis, From 160 to millions’ The New York Times ( New York, updated 22 September 2015) <http://www.nytimes.com/interactive/2015/09/10/world/europe/scale-of-migrant-crisis-in-europe.html?action=click&contentCollection=Middle%20East®ion=Footer&module=WhatsNext&version=WhatsNext&contentID=WhatsNext&moduleDetail=undefined&pgtype=Multimedia> accessed 3 December 2015.
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women and children scarcely able to sustain bare life above the biological minima of
existence’10.Forty years of human development has been lost.11
For the purposes of the UN Charter thus stating, ‘to achieve international co-operation in
solving international problems of an economic, social, cultural or humanitarian character and
in promoting and encouraging respect for human rights and for fundamental freedoms for all
without distinctions as to race, sex, language or religion,’12 the use of force is an important area
of study. The brief outline on the ongoing situation in Syria connotes that the use of force
affects all aspects of the quoted objective from the Charter.
1.2 Literature Review.
Mansell and Openshaw’s International Law; A Critical Introduction (2013), presented a very
critical and analytical overview of international law as a whole. It gave a very coherent analysis
of the geopolitics behind contemporary international law, for example the workings of the
United Nations Security Council (UNSC) in relation to the permanent members and the rest of
the international community. This conceptualised an understanding of the developments of
humanitarian intervention and R2P. However the critical nature of this book resulted into a
more detailed analysis of the political issues of power and states rather than the legal aspects
of use of force, humanitarian intervention and R2P; which were also discussed but not in as
much detail.
Gideon Boas’ Public International Law; Contemporary Principles and Perspectives (2012),
gave a detailed discussion of the use of force, with brief history showing a logical development
10 Syrian Centre for Policy Research, Syria: Squandering humanity (Socioeconomic Monitoring Report on Syria, May 2014) 45. 11 Ben Norton, ‘The Shocking Statistics behind Syria’s Humanitarian Crisis’ (Think Progress, 2 June 2014) <http://thinkprogress.org/world/2014/06/02/3443171/syria-crisis-stats/> accessed 3 December 2015. 12 United Nations (UN) Charter (24 October 1945) 1 UNTS XVI art 1(3).
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of the law in self-defence and humanitarian intervention. As it was published in 2012, it lacked
the most recent developments of R2P, still a developing concept then.
Abass’ Complete International Law (2014) was a very thought provoking text, setting out
learning objectives at the beginning of the chapters highlighting what would be covered within.
Its key points and thinking points within the chapters probed the reader on what they have read
to assess their level of understanding. It also provided key books and journal articles in its
further reading section, enabling more research on the topic. Given that it was the most recently
published book, it covered the most current affairs on the use of force such as the Syrian Crisis.
It was a very detailed book thus essential to edit irrelevant information with regards to the
dissertation.
1.3 Methodology.
For the purposes of this dissertation, secondary research was undertaken which involved
collation of information from various sources including books, treaties, cases, journal articles,
newspapers, websites, interviews, lectures and reports. Some of the factors considered were
accuracy, cost, time and wide range of information. Secondary research was the most viable
method as it was time and cost effective with extensive resources and easy accessibility. The
use of force in international law is an expansive topic which has been widely researched on by
academics, political analysts, journalists and even policy makers. It was preferable to access
the research that has already been conducted rather than primarily obtaining information from
key individuals through surveys or interviews, which would have proved difficult.
As society changes so does the law. Researchers have different objectives for the outcome of
their research. The university library database is a comprehensive one stop shop catalogue
with links to various other sources and legal databases. To narrow down the research and tailor
it to the aims of this dissertation, specific words such as “use of force”, “R2P”, “humanitarian
intervention”, “United Nations”, “self-defence” and “collective security” were entered into the
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main library database and other databases accessed from the library such as Westlaw and Lexis
law library. Once the results were sourced it was essential read through and pick out the
relevant documents for further reading.
1.4 Dissertation Outline.
As stated in the brief introduction above, this thesis will focus on analysing the use of force
and its development in international law. Chapter two will give a clear definition of the use of
force, a brief history on its development, the current law that regulates it. Chapter three will
focus on the exception on the prohibition of the use of force looking in depth at the law and the
controversial areas prompted. Chapter four will explore humanitarian intervention, as
developed concept on the use of force by defining it and giving arguments for and against its
legitimacy. Chapter five will delve into the principle of responsibility to protect through
definition and a brief background to its development explaining its core values and the shift of
state responsibility. Chapter six will conclude the arguments formed in the previous chapters
clearly showing there has been a development on the law owing to the fact that, the original
law written was written with the use of force between states in mind rather than the non-state
actors.
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2. The Use of Force.
2.1 Defining the Use of Force and the origin of the law.
The foreword of the book Right v Might states,
Man’s readiness to settle differences by force of arms has been a feature of society
since pre-history. Man’s attempt to place rational bounds on the use of force
emerging from his revulsion against the scourge of war is almost as old. This
struggle to impose ‘rationality on reality’ was a central feature of the enlightenment
and age of reason in the eighteenth century.13
This view is evidently illustrated below by the image of the knotted gun statue, situated in front
of the UN headquarters in New York. It denotes a change in the fundamental mind set of the
society on the readiness to result into force to solve differences. Even more iconic is its
placement in front of the headquarters of the organisation formed with the intent to maintain
international peace and security.
Figure 1.2: Statue of the Knotted Gun, United Nations Headquarters New York.14
13 Foreword and Afterward by John Temple Swing in Louis Henkin et al (eds), Right v Might: International Law and the Use of Force (Council on Foreign Relations Press 1989). 14 Jeremy Meyer, ‘Knotted Gun Sculpture’ (The Spot for Politics and Policy, 18 December 2012) <http://blogs.denverpost.com/thespot/2012/12/18/denver-assault-weapons-ban-books-1989/87342/knotted-gun-sculpture/> accessed 3 December 2015.
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The law on the use of force is regulated by both treaty and customary law; as will be established
in this chapter; however the definition of the use of force is contentious. The use of force is
regulated in two ways, the circumstances in which force can be employed; jus ad bellum; and
the law of war; jus in bello; which regulates how war is conducted once it has begun.15
Therefore to consider the constraints on the use of force, the circumstances under which the
proposed use of force is used must first be considered, as different situations trigger the
application of different rules.
The right to wage war before the First World War was widely unrestricted. After the war
however, a real thought was given to the problem of how to deter states from waging war
against each other in the first place, due to the brutal consequences of war. The League of
Nations (1919); established after the First World War; provided a forum where states could
negotiate and discuss differences rather than resorting to war and imposed limitations on the
use of force. It did not set out to abolish war but control the way in which war was conducted.
The General Treaty for the Renunciation of War (1928), also known as the Kellogg-Briand
Pact, sort to reject war altogether in contrast with the Covenant of the League of Nations, which
imposed procedural constraints to reduce the likelihood of war. This pact was inspired by a
liberal internationalist view that, war could be prevented and abolished with a combination of
enlightened diplomacy and collective solidarity.16 Its failure was that it was only a pact and
had no enforcement provisions as shown by the Japanese invasion of Manchuria in 193117. Its
importance nonetheless was twofold in that, it bound its signatories in its suggestion that
recourse to war could amount to breach of international law and it was partly the legal basis
15 Wade Mansell and Karen Openshaw, International Law: A Critical Introduction (Hart Publishing 2013) 182. 16 Wade Mansell and Karen Openshaw, International Law: A Critical Introduction (Hart Publishing 2013) 185. 17 Ian Brownlie Principles of Public International Law (7th edn, Oxford University Press 2008) 731.
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for the prosecutions of the Nuremberg trials and still remains law today18. Mr Henry L.
Stimson, the secretary of state of the United States then, stated;
War between nations was renounced by the signatories of the Kellogg-Briand
Treaty. This means that it has become throughout practically the entire world an
illegal thing. Hereafter, when nations engage in armed conflict, either one or both
of them must be termed as violators of this general treaty law. We denounce them
as lawbreakers.19
It set out the origin and basis of the current law prohibiting the use of force and establishing
the international norms pertaining to threat or use of military force.
2.2 The law on the Use of Force.
The United Nations was formed with the intention that it would be the body regulating and
maintaining international peace.20 The UN Charter was written as a lesson of World War 1 and
2, affirmed in the preamble of the Charter, ‘…to save succeeding generations from the scourge
of war’21. The core rule pertaining to the use of force also described as ‘the corner stone of the
Charter system,’22 states that, ‘All members shall refrain in their international relations from
the threat or use of force against territorial integrity or political independence of any state or in
any other manner inconsistent with the purposes of the UN.’23 In order to interpret the intended
meaning of article 2(4) the threat or use of force, territorial integrity and political independence
as well as the purposes of the United Nations must be examined in detail.
18 J. L. Brierly, The Law of Nations: An Introduction to the International Law of Peace (Sir Humphrey Waldock ed, 6th edn, Oxford: Clarendon Press 1963) 408. 19 Foreword and Afterward by John Temple Swing in Louis Henkin et al (eds), Right v Might: International Law and the Use of Force (2nd edn, Council on Foreign Relations Press 1989). 20 UN Charter (24 October 1945) 1 UNTS XVI art 1(1). 21 Preamble of the UN Charter (24 October 1945) 1 UNTS XVI. 22 J. L Brierly, The Law of Nations: An Introduction to the International Law of Peace (Waldock ed, 6th edn 1963) 414. 23 UN Charter (24 October 1945) 1 UNTS XVI art 2(4).
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The Charter in its wordings uses the term “force” as opposed to “war”, which circumscribes a
broader range of conduct and does not limit a state to making a declaration of war for it to be
within breach of the Charter. Dinstein argues that, ‘When studied in context, the term “force”
in article 2(4) must denote armed or military force. The moot point thus is, whether the
provision envisages other uses of force such as economic sanctions in addition to armed force.
Psychological or economic pressure does not come within the purview of the article, unless
coupled with the use or at least threat of use of force.’24 During negotiations on the formation
of the UN the bid to include economic aggression was rejected with the view that states were
generally free to choose their trading partners and refusal to trade with another state should not
be a violation of international law. 25
General Assembly (GA) resolutions are not legally binding but are still very persuasive. This
is due to the fact that they represent a consensus of member states’ opinion on the way in which
an article should be interpreted. In the GA’s resolution 262526, it interpreted article 2(7), ‘the
duty not to interfere in matters within domestic jurisdiction of any state,’27; which is the
principle of non-intervention; to mean ‘economic, political or any other type of measures to
coerce another state in order to obtain from it the subordination of the exercise of its sovereign
rights or to secure advantages of any kind’28. Thus suggesting the UN would not intervene in
matters not regulated by international law. Nonetheless the same resolution set out that, the
most blatant use of force is an invasion or attack by the armed forces of a state on the territory
of another state29, which includes military occupation and any attempt to forcibly annex
territory. In Nicaragua v USA30, the International Court of Justice (ICJ) held that the economic
24 Yoram Dinstein, War, Aggression and Self-Defence (5th edn, Cambridge University Press 2011). 25 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 338. 26 United Nations General Assembly (UNGA) Resolution 2625 (XXV) 24 October 1970 UN Doc A/Res/25/2625 (1970). 27 UN Charter (24 October 1945) 1 UNTS XVI art 2(7). 28 UNGA Resolution 2625 (XXV) 24 October 1970 UN Doc A/Res/25/2625 (1970). 29 Definition of Aggression UNGA Res 3314 (XXIX), UN GAOR, 29th sess (1974) art 3. 30 Nicaragua v USA [1986] ICJ 14.
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sanctions imposed by the USA on Nicaragua did not constitute to breach of customary law on
non-intervention. Thus a state could be in breach of the prohibition on the use of force even
though the territorial sovereignty of another state is not breached. The general view is therefore
that Article 2(4) does not include situations beyond use of armed force.
Not only is the use of force prohibited, but also the threat of use of force suggesting the drafters
were ardent on making the rule on prohibition as comprehensive as possible. A “threat”
involves a communicated hostile determination or intention. This communication may be
expressed or implied. The existence of a threat must be determined on the basis of whether
there are reasonable grounds for such a perception.31The ICJ answered the question of what
constitutes as a threat of use of force by looking at the relationship between the threat and use
of force in its advisory opinion on the Legality of Threat or Use of Nuclear Weapons. It
concluded that, ‘the notions of threat and use of force under article 2(4) stand together in the
sense that, if the use of force in itself is illegal, the threat to use of force will likewise be
illegal.’32 Additionally, there is no requirement under international law that a threatening state
must be able to deliver in its threat before it can be unlawful. The lawfulness of a threat wholly
lies on the lawfulness of the use of force in its self.
The interpretation of the phrase ‘territorial integrity and political independence’33 is one of the
most controversial. The narrow view implies that unlawful force consists of any use of force
resulting in the loss or permanent occupation of the territory, compromises the state’s ability
to make independent decisions and is contrary to the purposes of the UN.34 This was
demonstrated by Israel at Entebbe airport in 1976. Israel’s actions were not to compromise the
territorial integrity or political independence of Uganda but to rescue nationals. The broad
31Geir Ulfstein, ‘Legality of the NATO Bombing in Libya’ (2013) 62 ICQL. 32 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226. 33 UN Charter (24 October 1945) 1 UNTS XVI art 2(4). 34Anthony D’Amato, International law: Process and Prospect (Transnational law Publishers 1987) 58-59.
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interpretation however, rejects this stance and only allows use of force permitted by the
Charter.35 The argument is that the permissive view confined to only to situations affecting
territorial integrity and political independence, will give rise to a lacuna.
Lastly force may not be used in any manner inconsistent with the purposes of the UN which
include the maintenance of international peace and security, the development of friendly
relations and international cooperation.36 This could be said to imply that force should be used
to up hold human rights and prevent humanitarian tragedies. The contention with this argument
is that it presents an opportunity for self-serving states to abuse this right claiming to act on
behalf of humanity and use it as a pretext for interfering with internal affairs of other states.37
Although the UN does not evidently prohibit actions which are inconsistent with the purposes
of the UN, it does not mean that such actions would be lawful. Sir Fitzmaurice found this to be
a logical fallacy stating that, ‘this is rather like arguing that, because it is one of the purposes
of English law that people should receive their due legal rights, they are therefore entitled to
assert those rights by force.’38
35 Julius Stone, Aggression and World Order: A Critique of the United Nations Theories of Aggression (University of California Press 1958) 43. 36 UN Charter (24 October 1945) 1 UNTS XVI art 1. 37 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 362. 38 Sir Gerald Fitzmaurice restated in Geoffrey Martson, ‘Armed intervention in the 1956 Suez Canal crisis: The legal advice tendered to the British Government’ (1988) 37 ICQL 1.
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3. Exceptions to the Rule.
The rule on the prohibition of the use of force is not absolute in its entirety. Its exceptions
include self-defence39 and authorisation by the UNSC40. The ICJ in Nicaragua v USA41,
reiterated these exceptions and acknowledged article 2(4) as embodying a customary rule in
international law making it applicable to all states.42 This chapter will discuss each exception
in detail critically analysing the law that regulates them, their interpretations and developments.
3.1 Self-defence.
The concept of self-defence was first addressed in the Caroline43 dispute of 1837, which set
out the customary rules of self-defence. Britain claimed to act in self-defence responding to the
impending threat of an armed rebellion. In the diplomatic correspondence between the US
secretary of state at the time, Daniel Webster, and the British officials, Webster contended that
Britain had to show, ‘a necessity of self-defence, instant, overwhelming leaving no choice of
means and no moment for deliberation’44. Additionally, the force used must be proportionate
to the threat encountered and not, ‘unreasonable or excessive; since the act justified by the
necessity of self-defence must be limited by that necessity and kept clearly within it’45. This
statement effectively laid the foundation of the principles of self-defence under customary
international law introducing the twin requirements of necessity and proportionality.46 These
entail that the state cannot result to use force if there are other means of resolving a situation
and must do no more that is required to defend themselves.
39 UN Charter (24 October 1945) 1 UNTS XVI art 51. 40 UN Charter (24 October 1945) 1 UNTS XVI ch 7. 41 [1986] I.C.J. 14. 42 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgement, ICJ Rep [1986]14, para 188. 43 Caroline case 29 BSFP 1137-8 (1837) 44 Letter from Daniel Webster to Lord Ashburton (27 July 1842) < http://avalon.law.yale.edu/19th_century/br-1842d.asp> accessed 3 December 2015. 45 Ibid. 46 Gideon boas, Public International Law: Contemporary Principles and Perspectives (Edward Elgar Publishing 2012) 327.
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Under treaty law self-defence is governed by article 51 of the Charter which states;
Nothing in the present Charter shall impair the inherent right of an individual or
collective self-defence if an armed attack occurs against a member of the United
Nations, until the Security Council has taken measures necessary to maintain
international peace and security. Measures taken by members in the exercise of this
right shall be immediately reported to the Security Council and shall not in any way
affect the authority and responsibility of the Security Council under the present
Charter to take at any time such action as it deems necessary in order to maintain
or restore international peace and security.47
According to the provision, states can defend themselves individually or collectively if they
have suffered an armed attack. Collective self-defence occurs when one or more states use
force in order to defend another state from an armed attack. It normally transpires in the context
of a formal alliance created for the purpose of mutual protection. The terminology in article 51
is restrictive from article 2(4) as it is specific to an armed attack in contrast to the threat or use
of force in article 2(4). The Charter does not define the term armed attack but it is generally
believed to be, an attack by the regular forces of a state on the territory of another by land, sea
or airspace.48 This probes areas of contention such as, whether an armed attack can only be
levelled by the regular forces of a state, if such an attack must be made on the actual territory
of the state being threatened and if self-defence may only be engaged once an armed attack is
underway. Tom Frank describes article 51 as an ‘idiot rule’ if taken literally as it can only be
applied by ‘idiots’, given that the only determination that needs to be made is whether, in fact,
an armed attack has occurred.49 It is therefore stipulated by Jan Klabbers, that article 51 cannot
mean what it says, and does not say what it means. Thus pointing to the customary right of
47 UN Charter (24 October 1945) 1 UNTS XVI art 51. 48 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 350. 49 Thomas M. Franck, The power of legitimacy among Nations (Oxford University Press 1990) 75-77.
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self-defence which is broader than the right formulated in article 51.50 Proposing that article 51
must be interpreted in conjunction with customary law to bring it to its full potential.
The use of the phrase “inherent right” is an implication that customary law and previous state
practice are relevant considerations and the treaty provision is not the only source of the
principle. A view supported by the ICJ in Nicaragua51 in their statement that, ‘article 51 is only
meaningful on the basis that there is a natural or inherent right of self-defence; and it is hard to
see how this can be other than that of a customary nature, even in its present content, it has
been confirmed and influenced by the Charter’.52 Although the Charter wording is strictly
conditional because states only have the right to self-defence once an armed attack has
occurred, it does not mean that states have to wait until they have been attacked to respond.
The right is always limited to the twin principles of proportionality and necessity established
by customary law. Hence precluding that the concepts of proportionality and necessity allow
the defensive state to deal only with an imminent and immediate threat. Therefore the UN
Charter does not provide for anticipatory self-defence rather, it originates from customary law.
Even so the UNSC tacitly endorsed it in a 2001 resolution mandating states to, ‘take necessary
steps to prevent the commission of terrorist acts including by provision of early warning to
other states through exchange of information’53. This was to ensure that article 51 was at par
with contemporary developments such as terrorism.
Another requirement under article 51 is that an act of self-defence must be immediately
reported to the UNSC. This requirement was set so that the international community can assess
whether an armed attack has indeed occurred and that the actions taken were necessary and
50 Jan Klabbers, International Law (Cambridge University Press 2013) 193. 51 [1986] I.C.J. 14. 52 Gideon boas, Public International Law: Contemporary Principles and Perspectives (Edward Elgar Publishing 2012) 328. 53 United Nations Security Council (UNSC) Resolution 1373 (2001) 28 September 2001 UN Doc S/RES/1373 (2001).
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proportionate. This provision is unique to treaty law as it was not a requirement in customary
law. It could be said that article 51 aims to find a balance between collective security and
individual or collective self-defence. Therefore, a right which was expected to exist only until
such a time when the UNSC was able to take measures necessary to restore or maintain
international peace and security. It ensures the protection of the Council’s authority under
chapter IIV by granting it monopoly over the use of force in international relations regardless
of the measures taken by the victim state or collective states. Legally however, the state is
allowed to continue using force in self-defence or collective self-defence, until it can be shown
that the measures taken by the UNSC are effective54 and notifying the UNSC does not abrogate
this right.
With regards to collective self-defence, an assisting state or a coalition of states cannot
legitimately decide when to intervene or repel an armed attack. The ICJ emphasized that,
‘There is no rule permitting the exercise of collective self-defence in the absence of a request
by the state which regards itself as the victim of an armed attack.’55 Therefore collective self-
defence must at the request of the victim state, with all the other requirements of article 51
satisfied. Dixon has the opinion that the safest but least satisfactory conclusion is that, the
precise ambit of the right to self-defence is open to debate.56 Article 51 opens a possibility that
there is a difference between an armed attack and the use of force. It proposes that there may
be uses of force that violate the prohibition of the use of force, but do not rise to the level of
invoking the right to self-defence. The underlying principles of proportionality, necessity and
imminency are reverberated in the Oil Platforms57 and Corfu Channel58 cases where the ICJ
found that, had the right of self-defence been available, the claimed responses of self-defence
54 Anthony Aust, Handbook of International Law (2nd edn, Cambridge University Press 2010) 211. 55 Nicaragua v USA [1986] ICJ 14, 199. 56 Martin Dixon, Textbook on International Law (7th edn, Oxford University Press) 330. 57 Oil platforms case (Islamic Republic of Iran v USA) [2003] ICJ Reports 161. 58 Corfu Channel (United Kingdom v Albania) (judgement) [1949] ICJ Reports.
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would have been held to be disproportionate. An approach reinforced in the Courts advisory
opinion on the threat or use of nuclear weapons.59
3.2 United Nations Security Council Authorisation.
The Charter confers upon the UNSC the ‘primary responsibility for the maintenance of
international peace and security’60 and ‘to that end, take effective collective measures for the
prevention and removal of threats to the peace and suppression of acts of aggression or other
breaches of peace’61. Chapter VII of the UN Charter through article 39, bestows upon the
Council the power to ‘determine the existence of any threat or breach of peace or act of
aggression and make recommendations, or decide what measures shall be taken in accordance
with articles 41 and 42 to maintain and restore international peace and security’62. The
prohibition on the use of force is subject to this unique authority of the UNSC which allows it
to use force as a last resort to maintain or restore international peace and security. It is upon
the Council to define what a threat or the breach of peace is because it is not defined in the
Charter. Article 39 legally requires the UNSC to make a determination clearly indicating the
nature of the situation by adopting a resolution. This ensures that the crisis is an international
one and assures the world that it is not meddling with domestic affairs of the state63, thus within
the principle of non-intervention. Only once a breach or threat of peace and act of aggression
are determined, can the UNSC commence collective security measures.
Article 41 confers upon the UNSC power to use non-forcible measures, usually in the form of
economic sanctions, to maintain or restore peace. These measures are not designed to adversely
affect the general population, but rather to compel the ruling elite of a state to comply with the
demands of the international community. If the council imposes article 41 it must first
59 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226. 60 UN Charter (24 October 1945) 1 UNTS XVI art 24. 61 UN Charter (24 October 1945) 1 UNTS XVI art 1 (1). 62 UN Charter (24 October 1945) 1 UNTS XVI art 39. 63 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 377.
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determine that the sanctions imposed have proved unsatisfactory before article 42 is imposed.
Alternatively it may simply invoke article 42 if it believes that article 41 will be inevitably
inadequate. Article 42 has been described as ‘the heart of the collective security system’64. This
provision gives the council the power to authorise military action as ‘it may take action by air,
sea or land forces as may be necessary to maintain or restore international peace and security’65.
The measures passed to counter a threat may only be for the purpose of maintaining
international peace and security only and not for punishment or retaliation unless the
connection between the action and measures to maintain peace and security can be
articulated.66
Although the UNSC is allowed to authorise the use force as a last resort, the process of getting
authorisation and effecting article 42 measures is subject to different factors, most importantly
international politics and the veto power. Furthermore the UNSC does not have its own military
force and relies on the willingness of member states to provide the necessary resources if and
when it needs to act. Article 43 stipulates;
All members of the United Nations, in order to contribute to the maintenance of
international peace and security, undertake to make available to the Security
Council, on its call and in accordance with a special agreement or agreements,
armed forces, assistance and facilities, including rights of passage, necessary for
the purpose of maintaining international peace and security.67
The above provision was envisaged to be the source of military forces for the UNSC for the
purposes of collective security. The San Francisco negotiations where the UN was being
established, encountered several problems which prevented article 43 from being realised.
64 Martin Dixon, Textbook on International Law (7th edn, Oxford University Press 2013) 344. 65 UN Charter (24 October 1945) 1 UNTS XVI art 42. 66 JMO Lecture by Michael Schmitt, ‘International Law and the Use of Force (The Jus ad Bellum)’ (Naval War College 1 April 2014) < https://www.youtube.com/watch?v=fcGfvWSXEHA> accessed 4 December 2015. 67 UN Charter (24 October 1945) 1 UNTS XVI art 43.
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States found that approval of their domestic legislature before deploying troops overseas was
an essential factor as well as a chain of command because they could not agree on who would
command said troops once deployed.68 Technically, the UNSC would not be able to authorise
the use of force under article 43 due to the states failing to come to an agreement. However the
UNSC approves military action by authorising ‘able and willing states to restore international
peace and security,’69 rather than enforcing article 43, which is unenforceable under the
circumstances. Authorising states to take military action may appear no different than the
UNSC authorising use of its own forces as visualised under article 43. In reality the difference
is that, the UNSC may only recommend a state to take necessary action rather than an oblige
them to do so, as compared to its own forces, where it could compel them to take specific action
under article 42. States respond if they are willing and able to do so and not because they are
obligated. Ige F. Dekker found that a Dutch report noted that, the UN has in the past been
confronted with problems, as states were unwilling to provide the military resources in
sufficient quantities, consequently limiting its capacity to initiate or carry out some of its
missions.70 Although all members are obliged to accept and carry out decisions of the UNSC
under article 2571, the military forces provided are under the command of the providing state
or regional system and not of the UNSC regardless of its authorisation. The Council imposed
its powers under chapter VII following Iraq’s invasion of Kuwait72 following the chapter VII
criteria through articles 39, 41 and eventually 42 as a last resort. It also exercised these powers
by authorising the North Atlantic Treaty Organisation (NATO), ‘to take all means necessary
to implement the Bosnian Peace Plan’73.
68 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014)392. 69 UNSC Resolution 678 (1990) 29 November 1990 UN Doc S/RES/0678 (1990). 70 I. F. Dekker, 'Illegality and Legitimacy of Humanitarian Intervention: Synopsis Of and Comments on A Dutch Report' (2001) 6 Journal of Conflict and Security Law. 71 UN Charter (24 October 1945) 1 UNTS XVI art 25. 72 UNSC Resolution 678 (1990) 29 November 1990 UN Doc S/RES/0678 (1990). 73 UNSC Resolution 1264 (1999) 15 September 1999 UN Doc S/RES/1264 (1999).
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The veto power has led to situations where the Council would or could not take action even
where it was deemed appropriate. The Rwandan genocide was an instance where the UNSC
should have intervened but did not though genocidal violence was imminent. Dixon points out
that there has been ‘a sharp reminder of the reality of international politics provided by the UN
response to the Syrian crisis in 2012’.74 A draft resolution authorising action under chapter VII
was vetoed three times by Russia and China which shows that the Council is limited in its
authority. Moreover the UNSC is not obliged to make a determination under article 39, which
questions whether the autonomous nature of the UNSC is a positive measure as such.
Intrinsically, UNSC authority could be said to be greatly undermined with regards to its main
purpose of upholding peace and security. The inability to act in situations where it is under
pressure from the international community prompts unilateral action by other states or
organisations such as NATO in Kosovo or ECOWAS in Sierra Leone on the basis of
humanitarian intervention.
The Council’s authority appears to be an underlying basis of the exceptions to the rule on the
prohibition to the use of force. The law on self-defence and collective self-defence require the
attacked state claiming self-defence and the intervening state on behalf of collective self-
defence, to report their actions to the UNSC, that it may then ‘take measures necessary to
restore or maintain international peace and security’75. Concurrently the other exception is by
way of UNSC authorisation where the Council may use force as a last resort to maintain or
restore peace and security. The above evaluation stipulates that although the Council may seem
to have overall authority, there are ambiguities which have led to the concepts of intervention
74 Martin Dixon, Textbook on International Law (7th edn, Oxford University Press 2013) 343. 75 UN Charter (24 October 1945) 1 UNTS XVI art 51.
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or use of force without UNSC authorisation such as humanitarian intervention and
responsibility to protect as discussed in the chapters below.
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4. Humanitarian Intervention.
4.1 Defining Humanitarian Intervention.
The inability of the UNSC to intervene in some situations has led to other states or regional
organisations intervening in civil wars or atrocities on the basis of necessity for humanitarian
reasons. The principle of humanitarian intervention has proved to be a contentious area of
discussion on the balance of legality and morality. It has no standard definition but assumes
the context of its analysis, either in law, ethics or politics. In the legal context, Stowell defines
humanitarian intervention as, ‘The reliance upon force for the justifiable purpose of protecting
the inhabitants of another state from treatment which is so arbitrary and persistently abusive,
as to exceed the limits of that authority, within which the sovereign is presumed to act with
reason and justice.’76 Another permissive definition would be, ‘The use of force by one state
in the territory of another, to protect persons who are in imminent danger of death or ,grave
injury, when the state in whose territory they are is unwilling or unable to protect them,’77 by
Malvina Halberstam. It is important to note that, though not identical, the definitions above
provide four main aspects in relation to humanitarian intervention. These include, use of
military power, human rights violations, sovereignty and examination of the UN Charter with
regards to the concept of humanitarian intervention.
L. C. Green has the view that, the concept of intervention on humanitarian grounds could be
dated as far back as 1625 when Grotius asserted that, ‘The right to make war may be conceded
against a king who openly shows himself the enemy of the whole people.’78 This affirms the
notion to intervene regardless of sovereignty in cases that concern atrocities against humanity.
76 L. C. Green, ‘Enforcement of International Humanitarian Law and Threats to National Sovereignty’ (2003) 8 Journal of Conflict and Security Law. 77 Malvina Halberstam, ‘The Legality of Humanitarian Intervention,’ (1995) 1 International and Comparative Law Journal. 78 L. C. Green, 'Enforcement of International Humanitarian Law and Threats to National Sovereignty' (2003) 8 Journal of Conflict and Security Law.
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Brownlie however stated that this doctrine appeared as a ‘cloak for episodes of
imperialism’79and an opportunity for the powerful countries to fix a situation militarily. Even
so humanitarian intervention has been used to justify the use of force without UNSC
authorisation in past cases. Evidently, there is no general consensus on the doctrine and there
are divergent views on its acceptance. Thus argued as an emerging exception to the rule on
prohibition of the use of force.
4.2 Legality and legitimacy of Humanitarian Intervention.
Albeit the UN Charter does not recognise this doctrine, it does not however affect the reality
that it continues to take place and seems set in state practice.80 The NATO intervention in
Kosovo without UNSC authorisation due to Russia’s threat to veto, curbed the UNSC from
acting on a situation where appropriate action was needed. NATO claimed it took humanitarian
intervention to ensure Yugoslavia complied with UNSC resolutions. This claim was rejected
on the basis that, the UN Charter does not empower any organisation to use force in support of
UNSC mandates without its authority. Professor Bruno Simma pointed out that, although
NATO’s actions breached the UN Charter, ‘only a thin red line separates NATO’s action in
Kosovo from international legality’.81 He went on to add,
The Alliance made every effort to get as close to legality as possible by, first
following the thrust of, and linking its efforts to, the Council resolutions which did
exist, and, second, characterizing its action as an urgent measure to avert an even
greater humanitarian catastrophe in Kosovo, taken in a state of humanitarian
necessity.82
79 Ian Brownlie, Principles of Public International Law (7th edn, Oxford University Press 2008) 742. 80 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 405. 81 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 407. 82 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 407.
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In his opinion, while NATO’s intervention was illegal for lack of UNSC authorisation, it was
legitimate for the purposes of humanitarian intervention. Humanitarian intervention, as a
doctrine of international law, could therefore be looked at as a struggle between law and
legitimacy. The law is said to exist to serve a social need; but precisely for that reason it can
only do so through and within the limits of its own discipline. Otherwise, it is not a legal service
that could be rendered. Whereas its legitimacy is drawn from the fact that the use of force
would serve to enforce a fundamental international norm.83
Professor Antonio Cassese rejected Simma’s opinion that only a thin red line separated the
NATO action from legality. Instead he concluded that there was no small breach of the UN
Charter.84 The principle legal argument against humanitarian intervention was that of
sovereignty of a state and the concept of non-intervention enshrined in the principles of
international law. The UN Charter advocates for the independence of authority of a state within
its own domestic jurisdiction85, without prejudice to enforce measures under Chapter VII.86
This translates to states autonomy in their domestic affairs, which can only be breached by
authority of the UNSC after an evaluation that there is threat to peace, breach of peace and acts
of aggression87. Intervention, even on humanitarian grounds, is maintained to be against the
sovereignty of the target state.
More often than not, humanitarian intervention is never the sole reason of taking military
action. The aim of the intervening states can never be fully transparent because powerful and
able states may intervene in conflicts in their own regions to promote their own agendas.
Carsten Stahn criticises former US Legal Advisor Harold Koh’s reference to intervening as
83 Gideon Boas, Public International Law: Contemporary Principles and Perspectives (Edward Elgar Publishing 2012) 125. 84 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 407. 85UN Charter (24 October 1945) 1 UNTS XVI art 2(7). 86 UN Charter (24 October 1945) 1 UNTS XVI art 2(7). 87 UN Charter (24 October 1945) 1 UNTS XVI art 2(7).
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‘ambulance drivers allowed to cross red lights’88. He has the opinion that, ‘The comparison is
shaky and presents intervention as a “clean” and “neutral” recipe that can be used to address
the underlying dilemmas of conflict. This premise is questionable. Intervention is not like
targeted medical surgery and intervener are typically not simply “neutral” and “benevolent”
humanitarians.’89 As seen in Kosovo, the authenticity that the action was as a result of
humanitarian purposes, was considerably challenged. This was due to the fact that, prior to the
invasion, threats of force were directly linked to a political agenda. Any legal recognition of
humanitarian intervention as a right may be extensively open to abuse.
It may also be particularly difficult for a new legal basis for humanitarian intervention to
emerge through customary international law. Although the world is united in condemnation of
human atrocities and the need to intervene in cases such as Syria, when and if an invasion
occurs without UNSC authorisation, intervening parties until recently, hardly ever used
humanitarian intervention as a motive. This repudiates any evidence of changing opinio juris90.
For customary law to be binding there must be two concurrent elements. There must be
widespread practice of the law and states must believe they are legally bound to follow said
practice. Although there may be some practice of humanitarian intervention, states do not
believe they are legally bound to follow it as they do not rely on it to justify their motives.
Tanzania used self-defence in its 1979 invasion of Uganda and overthrowing the regime of Idi
Amin, which was responsible for humanitarian outrages and murders of many Ugandans.
Consecutively, Vietnam was slated for its use of force in Kampuchea while the atrocities of the
Pol Pot government were condemned. While there has been some intervention, there has also
been instances of lack of intervention by states. This indicates the inconsistency in state practice
88 Carsten Stahn, 'Between Law-Breaking And Law-Making: Syria, Humanitarian Intervention And 'What The Law Ought To Be'' (2013) 19 Journal of Conflict and Security Law. 89 Carsten Stahn, 'Between Law-Breaking And Law-Making: Syria, Humanitarian Intervention And 'What The Law Ought To Be'' (2013) 19 Journal of Conflict and Security Law. 90 Subjective obligation; a sense on behalf of a state that it is bound by the law in question.
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in cases such Sudan, Rwanda and; until very recently; Syria, which are all examples of very
serious and widespread violations of human rights.
Subsequently, if left to states to intervene when and as they see fit, there is a risk of floodgates
opening. There would be lack of accountability in military action. It would ultimately alter the
stability from a centralised enforcement system; which the UN represents; to a decentralized
system, where nations become arbiters over the legality of their claims to intervention. Anthea
Roberts shares in this opinion and states that, ‘when states break the law on the use of force,
they are often not at all subjected to condemnation of penalties, which results into lack of
accountability’91. The intervening state would have to decide for itself that human suffering of
another state has reached a level that necessitates intervention.
The UNSC gives a general consensus of legitimacy when it comes to use of force as opposed
to the unilateral use of force by states or regional organisations. It is contended to have an
objective view of international related situations because it is the platform in which, the nations
of the world direct their views and opinions. If left to the states to decide there is bound to be
subjectivity as argued above, intervening states may not always have humanitarian courses as
the sole purpose of invasion. Least to say, the cost of humanitarian intervention is always
considerable, bringing to moot whether the substantial collateral damage is worthwhile. This
would be a question better suited for an international organisation such as the UNSC, to ponder
upon and make a decision rather than the intervening states.
Nevertheless, even in its inconsistency in decision making, Inger Osterdahl argues that the
UNSC still makes law and its powers supreme.92 Its powers to determine and give authority
are unfettered and cannot be reviewed by another body. It became challenging to contain
91 Carsten Stahn, 'Between Law-Breaking And Law-Making: Syria, Humanitarian Intervention And 'What The Law Ought To Be'' (2013) 19 Journal of Conflict and Security Law. 92 Inger Osterdahl, 'The Exception as the Rule: Law-making On Force and Human Rights by the UN Security Council' (2005) 10 Journal of Conflict and Security Law. Exception to the rule.
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humanitarian intervention within the framework of the UNSC once it had made it legitimate
through its own decisions on the matter. Although the UNSC has tried not to establish
precedent by evaluating the situations brought forward on a case by case basis, by
distinguishing them in order not to oblige itself legally or morally to act consistently. It proved
difficult to argue against the use of military force to alleviate the suffering of people without
UNSC mandate, just because the council could not agree, if in the past the council has used the
same efforts to stop human suffering. Additionally, it could be argued the UNSC, helped tip
the balance in favour of humanitarian intervention even outside the UN framework.93 Thus
making its grounding in international law still a moot point. For instance after NATO
intervention, the UN set up a post conflict administration in Kosovo; UN Mission in Kosovo
(UNIMK);94 which assisted Kosovo in attaining independence and dealing with the damage
caused by the intrusion. Without the NATO bombing, the UN infrastructure in Kosovo’s
declaration of independence would have been incomprehensible.
Conversely, status quo reflects that there is an emerging view that sovereignty is no longer
absolute. Former UN Secretary General (UNSG), Kofi Annan tempted a view that a balance
exists between sovereignty and an obligation to respect human rights.95 Yet the principle of
non-intervention may still be subject to abuse by oppressive domestic regimes free from fear
of invasion. Authoritarian governments would be able to manipulate domestic policies to
commit meticulous human rights abuses against its political opponents and the civilian
population. For instance, the vile atrocities committed by the Pol Pot led Khmer Rouge regime
in Cambodia and the Idi Amin led government in Uganda against their own people prompts
this line of validation.96 From arguments set out, it could be deduced that the reasoning for and
93 Inger Osterdahl, 'The Exception as the Rule: Law-making On Force and Human Rights by the UN Security Council' (2005) 10 Journal of Conflict and Security Law. 94 Gideon Boas, Public International Law (Edward Elgar 2012) 325. 95 Secretary General (SG) Kofi Annan, ‘In Larger Freedom: Towards Security, Development and Human Rights for All’, UN GAOR. 59th sess., UN Doc. A/59/2005 (21 March 2005) [132]. 96 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 406.
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against humanitarian intervention as an emerging principle in international law, are equally
substantial. Although the law is not clear cut on this principle due to the struggle between
policy and legality, the inference would be that humanitarian intervention cannot be said to be
unambiguously illegal.97 Regardless of the fact that it is contrary to the UN Charter and in
contradiction with the fundamental principle of state sovereignty, it may nonetheless be
legitimised by the fact that its objective is an equally vital element of international law, the
principle of human rights. Even still, Dixon elucidates that, ‘states appear to value their
independence and political freedom more highly than they prize the protection of human
rights,’98 as harsh as it may seem. The 2001 Report of the International Commission on
Intervention and State Sovereignty (ICISS); an initiative of the Canadian government; was
issued with a view of making humanitarian intervention legally acceptable and compatible with
state sovereignty hence introducing the concept of Responsibility to Protect (R2P)99, discussed
in further detail in chapter 5.
97 Christian Henderson, 'The UK Government’s Legal Opinion on Forcible measures in response to chemical weapons by the Syrian Government’ (2015) 64 International and Comparative Law Quarterly. 98 Martin Dixon, Textbook on International Law (7th edn, Oxford University Press 2013) 338. 99 Carlo Focarelli, ‘The Responsibility To Protect Doctrine and Humanitarian Intervention: Too Many Ambiguities for a Working Doctrine’ (2008) 13 Journal of Conflict and Security Law.
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5. Responsibility to Protect (R2P).
5.1 Brief background and evolution of the Responsibility to Protect.
Responsibility to protect was designed to ameliorate the plight of many innocent civilians
caught up in armed conflict.100 The ultimate issue the International Commission on Intervention
and State Sovereignty (ICISS) faced, was converging the concepts of humanitarian intervention
and sovereignty due to their conflicting definitions in international law. The commission
achieved this by changing the tone and language of the debate, essentially mobilising support
for a more conditional interpretation of sovereignty. Hence sovereignty to be interpreted as
responsibility as opposed to control. The definition found in the ICISS report has been modified
overtime through key documents that have since been released on R2P. For instance the UN’s
High Level Panel on Threats, Challenges and Change recognised R2P as an,
Emerging norm that there is a collective international responsibility to protect,
exercisable by the security council authorising military intervention as a last resort,
in the event of genocide and other large scale killing, ethnic cleansing or serious
violations of humanitarian law which sovereign governments have proved
powerless or unwilling to prevent.101
In a further definition, the World Summit Outcome Document (WSOD)102 endorsed R2P
stating that,
Each individual state has the responsibility to protect its populations from
genocide, war crimes, ethnic cleansing and crimes against humanity. The
international community, through the United Nations, also has the responsibility to
100 Lecture by Jennifer Welsh, ‘The Evolution of the Responsibility of Protect: Securing Individuals in a World of States’ (Centre for International Governance Innovation 30 September 2013) <https://www.youtube.com/watch?v=P3WJZND3z8M> accessed 3 December 2015. 101 Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility,’ UN Doc. A59/565, 2 December 2004, para 203. 102 2005 World Summit Outcome Document UN Doc. A/60/L.1.
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use appropriate diplomatic, humanitarian and other peaceful means, in accordance
with Chapters VI and VIII of the Charter, to help to protect populations from
genocide, war crimes, ethnic cleansing and crimes against humanity. In this
context, we are prepared to take collective action, in a timely and decisive manner,
through the Security Council, in accordance with the Charter, including Chapter
VII, on a case-by-case basis and in cooperation with relevant regional organizations
as appropriate, should peaceful means be inadequate and national authorities
manifestly fail to protect their populations from genocide, war crimes, ethnic
cleansing and crimes against humanity. 103
This view of R2P was reaffirmed by the UNSC on the subject of protecting civilians in armed
conflict104 and drawn on by UNSG Ban Ki-Moon in his 2009 report where he sets out his three
pillar strategy105, the responsibility of each state to protect its people, the responsibility of the
international community to support a particular state in exercising its responsibility to protect
its people and finally, in cases where a state fails in its duty, the responsibility of the
international community to take diplomatic, humanitarian action or other means to stop these
violations.106 This doctrine was developed to champion a preventive rather than reactive
strategy as that of humanitarian intervention. While originally R2P was a rather broad concept,
the WSOD restricted it to an instrument to prevent the most egregious crimes of genocide, war
crimes, ethnic cleansing and crimes against humanity. It thereby established a close link to
international criminal law inferring some sort of legitimacy to international law. The definition
proposed by the WSOD seems to suggest a positive responsibility to protect but not a positive
103 2005 World Summit Outcome Document UN Doc. A/60/L.1, para 138-139. 104 UNSC Resolution 1674 (2006) 28 April 2006 UN Doc S/RES/1674 (2006). 105 Report of the Secretary General, ‘Implementing the responsibility to protect,’ UN Doc A/63/677, 12 January 2009. 106 Bruno Pommier, ‘The use of force to protect civilians and humanitarian action: The case of Libya and beyond’ (2011) 1063 International Review of the Red Cross.
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responsibility to use force.107 These guidelines were aimed for a tighter and stronger use and
regulation of the use of force under R2P on a case by case standard, as opposed to humanitarian
intervention. Although included in the UNSG’s report in 2005 and the Panel’s report, the
outcome document did not formally attach to the principle of R2P to the strict criteria
developed to regulate military intervention. The criteria included, seriousness of the harm done
to the population; a just cause for intervention; intervention as a last resort; proportionality of
the means used and an assessment of its consequences. It nonetheless does not detract from
their relevance, as shall be discussed below.
5.2 Responsibility to Protect in action.
The Outcome Document alludes the general willingness of states to implement the concept.
Nevertheless, the dearth of state practice and lack of clarity as to what exactly it entails, would
seem to militate against it manifesting into an international norm. Gareth Evans seems to
concur with the statement in his opinion that, ‘R2P as the new norm was unanimously endorsed
in principle by the whole global community in 2005 in the WSOD but has yet to be effectively
implemented in practice and been far from assured’.108 The course of action following the
events in Libya and Cote D’ivoire gave the concept an ‘extraordinary new momentum and
authority’109.The UNSC invoked R2P in response to the Libyan crisis in March 2011 under
resolution 1973110, which was the first mandate by the UNSC for a military intervention, based
on the responsibility to protect against the wishes of a functioning government. Although this
was a positive step towards the development of R2P, the intervention in Libya became about
the proper scope and limits of coercive military action. The legal mandate on the intervention
107 Matthew Kalkman, ‘Responsibility to protect bow without an arrow’ (2009) 75 Cambridge Student Law Review. 108 Lecture by Gareth Evans, ‘Implementing the Responsibility to Protect’ (Australian National University 15 May 2011) <https://www.youtube.com/watch?v=FjgRMKTWWzs > accessed on 4 December 2015 at 4:35. 109 Lecture by Gareth Evans, ‘Implementing the Responsibility to Protect’ (Australian National University 15 May 2011) <https://www.youtube.com/watch?v=FjgRMKTWWzs > accessed on 4 December 2015 at 4.15. 110 UNSC Resolution 1973 (2011) 17 March 2011 UN Doc S/RES/1973 (2011).
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in Libya constituted, ‘to protect civilians and civilian populated areas under threat of attack in
the Libyan Arab Jamahiriya, including Benghazi'111. Subsequently, this intervention came
under severe criticism from the BRICS112 countries for exceeding the narrow civilian
protection mandate. As a result, although at the outset of the intervention there was consensus,
the intervention became highly controversial on the basis of the scope of the legal mandate and
whether it included regime change. It could be argued that enforcing a regime change was
necessary to protect Libyans from future attacks thus removing the greatest threat on the Libyan
civilians; Qaddafi.113 Nevertheless this does not deter from the fact that decisive limits were
placed on military activities through the legal mandate to protect civilians and civilian
populated areas from threat of attack, and not human rights protection in Libya or regime
change.
In the past few years, R2P has been invoked selectively and not always appropriately as noted
by Alex Bellamy who articulates that it has been invoked in the context of certain humanitarian
crises including Darfur and Kenya but ignored in others such as Somalia.114 With NATO taking
a wide interpretation of resolution 1973, R2P poses a risk of “buyer’s remorse”115 from those
who did not oppose the resolution and a repercussion when the next extreme case of R2P arises.
A prime example is the ongoing civil war in Syria which is even worse than that of Libya. In
the case of Syria, there have been three vetoes by Russia and China. The first one in October
2011116, then in February 2012117 and again in July 2012118, showing that the consensus present
in the Council when adopting resolution 1973 was no longer present. The UNSC could not
111 UNSC Resolution 1973 (2011) 17 March 2011 UN Doc S/RES/1973 (2011) para 4. 112 Brazil, Russia, India, China and South Africa. All on the Security Council at the time. 113 Geir Ulfstein, ‘Legality of the NATO Bombing in Libya’ (2013) 62 ICQL. 114 Alex J Bellamy, ‘The Responsibility to Protect – Five Years On’ (2010) 24 Ethics and International Affairs 143-69. 115 A. J. Bellamy, 'Realizing the Responsibility to Protect' (2009) 10 International Studies Perspectives 111-28,112. 116 UNSC 6627th meeting, 4 October 2011, UN Doc S/PV.6627. 117 UNSC 6711th meeting, 4 February 2012, UN Doc S/PV.671. 118 UNSC 6810th meeting, 19 July 2012, UN Doc S/PV.6810.
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only agree on use of military force or less coercive measures such as sanctions and embargoes
but also mere condemnation of the situation in Syria. Only when the UNSC was confronted
with unequivocal evidence of use of chemical weapons, did consensual action follow,
authorising destruction of the regimes chemical weapons and foreshadowing considerations of
coercive action under chapter VII of the charter, should it not be forthcoming.119 It is important
to note that, the primary norm that triggered the UNSC reaction was the ban on use of chemical
weapons in non-international armed conflict embodied in both international humanitarian and
criminal law.120 Nonetheless, qualifying both as a crime against humanity and a war crime, it
meets the threshold for the trigger of R2P as endorsed in the WSOD but not necessarily as a
basis for intervention on those grounds.
This may indicate a back track to the old debates of humanitarian intervention. David Reiff
went as far as proposing the death of R2P in his article ‘R2P RIP’121. It is nevertheless important
to note that, in its proposal and development, R2P envisioned a broad range of actors,
responsibility, reaction forms and characterised essentially a ‘doctrine of prevention’122. It is
not only limited to military intervention as was humanitarian intervention but an advocate of
preventive measures.
5.3 The future of Responsibility to Protect
Responsibility to protect as a concept, resonates a growing consensus at least on what are clear
R2P cases if not always what to do about them. Eminent examples include Darfur, Eastern
Congo, Sri Lanka, Kenya, Libya, Cote D’ivoire and even Syria. The key strength of R2P is its
consensual support by the international community which constructs a sense of international
119 UNSC Resolution 2118 (2013) 27 September 2013 UN Doc S/RES/2118 (2013). 120 Carsten Stahn, 'Between Law-Breaking And Law-Making: Syria, Humanitarian Intervention And 'What The Law Ought To Be'' (2013) 19 Journal of Conflict and Security Law. 121 David Reiff, ‘R2P R.I.P’ The New York Times (New York, 7 November 2011) <http://www.nytimes.com/2011/11/08/opinion/r2p-rip.html?_r=0> accessed 3 December 2015. 122 Sheri P. Rosenberg, 'Responsibility to Protect: A Framework for Prevention' (2009) 1 Global Responsibility to Protect 442-47, 443.
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legitimacy. According to Adrian, the post-conflict crisis in Libya juxtaposed with the continued
mass violence in Syria, led to proclamation of the death of R2P, ‘revived in Libya, buried in
Syria’.123 Nevertheless this statement fails to recognise the consensual support from Brazil,
Russia, India and China; the very states that criticised the implementation of UN Resolution
1973124 in Libya; in the UN General Assembly dialogue on the R2P.125
Jennifer Welsh, the United Nations Special Adviser on R2P, stated her main goal was to
advance the understanding of “international assistance”, claiming it was the most promising
aspect of R2P.126 She shifted the focus from the extremely controversial military dimension of
pillar III onto the importance of pillar II, the distinction rooted in the tripartite formula set out
by the UNSG in his 2009 report on implementing R2P127. Pillar I set out the protection
responsibilities of states, pillar II was on international assistance and capacity building and
pillar III was about a timely and collective response. The tripartite formula shows that R2P
contains more than one prescription and a breach of one component triggers another resulting
in a wider range of reactors and reaction forms. The WSOD embodied the core tenets of pillar
II stating that the international community would encourage and help states through
international assistance to build the necessary capacity to protect their populations from the
four crimes.128
The international community in pillar II accentuates that the UN does not have to carry the
responsibility alone and there is a wider range of actors, however, more actors project a
123 Adrian Gallagher, ‘The Promise of Pillar II: Analysing international assistance under the Responsibility to Protect’ (2015) 1259 International Affairs. 124 UNSC Resolution 1973 (2011) 17 March 2011 UN Doc S/RES/1973 (2011). 125 2014 UN General Assembly Dialogue on the Responsibility to Protect (transcribed), 8 September 2014. 126 Interview with Jennifer Welsh, ‘R2P is dead, long live R2P: the future of the Responsibility to Protect’ (Stanley Foundation 8 November 2013) < http://www.responsibilitytoprotect.org/index.php/edward-luck/5223-stanleyfoundation-r2p-is-dead-long-live-r2p-interview-with-dr-jennifer-welsh > accessed 6 October 2015. 127 Report of the UN Secretary General, ‘Implementing the Responsibility to Protect’, UN GAOR. 63rd sess., UN Doc A/63/677, (12 January 2009). 128 Adrian Gallagher, ‘The Promise of Pillar II: Analysing international assistance under the Responsibility to Protect’ (2015) 1259 International Affairs.
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challenge in cooperation. This was demonstrated in the 2013 response in Mali which resulted
to the African Union (AU) stating that, the UN resolution was ‘not in consonance with the spirit
of partnership that the AU and the UN have been striving to promote for many years’.129 Pillar
II also presents different forms of assistance through encouragement, capacity building and
assisting states in times of impending crises. Encouragement involves raising awareness by
reminding states that they have a responsibility to protect and the importance of meeting this
responsibility. Evidenced by the Democratic People’s Republic of Korea (DPRK), public
condemnation acted as ‘a powerful catalyst for deeper international engagement’.130 This
augments the importance of pillar II, that public scrutiny can facilitate progress. In the case of
DPRK it would have been considered under pillar III, because the state had manifestly failed
to protect its population from the four crimes and did not consent to intervention from the
international community.131 Capacity building envisions a case where encouragement would
not work for instance where a state is unable or unwilling thus resulting to a needs assessment
on a case by case basis to mitigate the four crimes. Consequently, strengthening the capacity
of states and incorporating checks and balances to reduce threats of mass violence. Lastly
assisting states in times of impending crises includes expertise in dispute resolution, human
rights monitoring, law enforcement and criminal investigation, protecting refugees and the
internally displaced and protection of civilians in humanitarian emergencies.132
The main controversy with pillar III is that it involves military intervention without the consent
of the state, ultimately breaching the principle of non-intervention. Pillar II is viewed as a
129 Paul D. Williams and Arthur Boutella, ‘Partnership peacekeeping: challenges and opportunities in the United Nations-African Union relationship’, African Affairs 113: 451, 2014, pp. 254-78 at p. 256. 130 Alex J. Bellamy, ‘A chronic protection problem: the DPRK and the responsibility to protect’, International Affairs 91: 2, March 2015, p. 225-44 at p. 244. 131 Adrian Gallagher, ‘The Promise of Pillar II: Analysing international assistance under the Responsibility to Protect’ (2015) 1259 International Affairs 1263. 132 Adrian Gallagher, ‘The Promise of Pillar II: Analysing international assistance under the Responsibility to Protect’ (2015) 1259 International Affairs 1264.
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‘partnership between the international community and the state’,133 therefore consent is granted
by the state for military intervention upholding the concept of sovereignty. The outcome of
Kenya in 2008 seems to be the only really clear and successful example of R2P playing an
important role in stimulating and effecting response, taking a diplomatic rather than a military
solution form.134 In Libya and Cote d’Ivoire, the UN exceeded the mandates and opted for
regime change, in the case of Libya and paved way for the arrest of president Gbagbo, in Cote
d’Ivoire. These developments definitively raised challenges and criticism to R2P but the
concept according to Gareth Evans, ‘is here to stay and has made a difference and will continue
to do so’135. He proposes the development of a set of criteria of legitimacy as distinct from
legality, to tackle the conceptual challenge of R2P.136 This criteria was recommended by the
ICISS, the UN’s High Level Panel on Threats, Challenges and Change report and Kofi Annan
in his own report 2005137. They however have not been formally adopted by the GA or the
UNSC. Nevertheless Gareth believes that the proposed criteria could deal with the familiar
arguments of hypocrisy and double standards in these contexts, through their practical utility
combined with their philosophical pedigree if understood and applied sufficiently. The criteria
precludes an analysis of the seriousness of the risk and whether it would justify the use of
military force. The primary purpose of intervention on the basis of R2P would be to halt or
avert the threat in question. Military intervention would have to be as a last resort after every
non-military option has been explored or a by reasonable judgement that they would not
succeed. Additionally the force used would have to be proportional and minimal, necessary to
133 Report of the UN Secretary General, ‘Implementing the Responsibility to Protect’, UN GAOR. 63rd sess., UN Doc A/63/677, (12 January 2009). 134 Adrian Gallagher, ‘The Promise of Pillar II: Analysing international assistance under the Responsibility to Protect’ (2015) 1259 International Affairs 1265. 135 Lecture by Gareth Evans, ‘The Evolution of the Responsibility to Protect’ (Stanley Foundation 12 January 2012) < https://www.youtube.com/watch?v=SjepYRGoJlY > accessed on 4 December 2015 at 2:00. 136 Lecture by Gareth Evans, ‘Implementing the Responsibility to Protect’ (Australian National University 15 May 2011) <https://www.youtube.com/watch?v=FjgRMKTWWzs > accessed on 4 December 2015 at 4:35. 137 Secretary General (SG) Kofi Annan, ‘In Larger Freedom: Towards Security, Development and Human Rights for All’, UN GAOR. 59th sess., UN Doc. A/59/2005 (21 March 2005).
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meet the threat in question. Lastly there has to be a balance of consequences weighing whether
those at risk would largely be better or worse off due to coercive military intervention. This
criteria would facilitate conceptual consensus on what are R2P cases and the most appropriate
ways to deal with them, either by way of prevention or by way of reaction.
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6. Conclusion.
The provisions on the prohibition of the use of force under article 2(4) and its exceptions under
article 51, are seen as the heart of the Charter and some of the most important principles of
contemporary international law. Nonetheless, reality seems to mock them with widespread
warfare.138 There is no explicit permission to use force against humanitarian crises in the
Charter but the Charter framers in developing it, were not immune to human rights
considerations and as a result careful of the phrases used to leave room for interpretation and
development. Views concerning the use of force for purposes other than those of self-defence
or prescription by authority of the UNSC, have gradually evolved in the wake of contemporary
developments.
The crisis over the legitimacy of the UN collective security system rose out of its failure to act
promptly and effectively over humanitarian disasters as well as its failure to agree over
appropriate action in those cases. Hence conveying that it was not the longstanding doctrinal
disagreements that were the problem. For instance in the cases of Iraq, Rwanda and Kosovo,
the issues arose because States could not agree whether Iraq was a threat, what the appropriate
action in Rwanda was and as a result of the threat to veto by Russia in Kosovo. Only recently
did the UNSC finally issue a determination on the situation in Syria through resolution 2249139.
It condemned the terrorist attacks by Daesh, unanimously adopting that the extremist group
constituted an “unprecedented” threat to international security and called upon member states
with the requisite capacity to take “all necessary measures” to prevent and suppress its terrorist
acts on territory under its control in Syria and Iraq. By using “all necessary measures” it implied
the use of force in the language of international law, as established by previous resolutions. It
should be noted that this resolution was not adopted under chapter VII of the Charter and is
138 Oscar Schachter, ‘The right of states to use armed force’ (1984) 1620 Michigan Law Review Association. 139 UNSC Resolution 2249 (2015) 21 November 2015 UN Doc S/RES/2249 (2015).
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subject to interpretation by states. Consequently, it does not provide a legal basis for the use of
force in Syria but political legitimization for the use of force and may even possibly be
interpreted in line with R2P. These practical and political problems rather than any
disagreement on the law remain the main obstacle to an effective UN collective security
system. Humanitarian intervention and R2P stemmed from this unfeasible nature of the UN
collective security system.
Norms by their very nature are social facts which create zones of what is and is not permissible
with regards to certain behaviour. On a legal assessment humanitarian intervention and R2P do
not qualify as legal concepts of international law. They are two different concepts but coincide
in their rejection of sovereignty as a shield against the principle of non-intervention. One of the
central purposes of contemporary use of force is the protection of individuals’ security. 140
Humanitarian intervention failed in this purpose as it lacked well-founded procedures where
there was an imperative need to use appropriate measures to protect civilians of a state, from
human rights violations. Conversely the ultimate aim of R2P was protection of civilians
through the tripartite formula of responsibility of the state and responsibility of the international
community to assist and responsibility of the international community to respond. Countering
the lack of well-founded procedures and illegality of unilateral humanitarian intervention,
seeking to strengthen collective security rather than undermine it.141 The core elements and
crucial difference between humanitarian intervention and R2P is that, humanitarian
intervention was all about coercive military responses to extreme threat situations while R2P
was more multi-dimensional, incorporating a wider range of actors and responses. This was as
140 Lecture by Jennifer Welsh, ‘The Evolution of the Responsibility of Protect: Securing Individuals in a World of States’ (Centre for International Governance Innovation 30 September 2013) <https://www.youtube.com/watch?v=P3WJZND3z8M> accessed 3 December 2015. 141 Carsten Stahn, ‘Between Law-Breaking and Law-Making: Syria, Humanitarian Intervention and ‘What the Law Ought to be’’ (2013) 19 Journal of Conflict and Security Law.
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a result of the presentational shift from the language of the right to intervene to the
responsibility to protect.
With the consistent need to use appropriate measures to protect civilians and as new
international crises emerge, the doctrines of self-defence, humanitarian intervention and R2P
are bound to be refined and applied in different situations. Ultimately the use of force, as
demonstrated by the ongoing situation Syria, is an area of law that needs constant and further
research and is prone to development. Humanitarian intervention and R2P as concepts are open
to controversy and debate as well as evolution in meaning, as they continue to be applied.
Whilst the prohibition to the use of force is likely to be further refined, the likelihood that such
efforts, to completely satisfy the lofty objective of ‘saving generations from the scourge of
war,’142 are very much so still open to debate.
142 Preamble of the UN Charter (24 October 1945) 1 UNTS XVI.
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7. Bibliography.
7.1 Primary Sources.
7.1.1 Case Law.
1. Caroline case 29 BSFP 1137-8 (1837).
2. Corfu Channel (United Kingdom v Albania) (judgement) [1949] ICJ Reports.
3. Nicaragua v USA 1986 I.C.J. 14.
4. Oil platforms case (Islamic Republic of Iran v USA) [2003] ICJ Reports 161.
5. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep
226.
7.1.2 United Nations Documents.
1. Annan K, ‘In Larger Freedom: Towards Security, Development and Human Rights for
All’, UN GAOR. 59th sess., UN Doc. A/59/2005 (21 March 2005).
2. UN Charter (24 October 1945) 1 UNTS XVI.
3. United Nations General Assembly (UNGA) Resolution 2625 (XXV) 24 October 1970
UN Doc A/Res/25/2625 (1970).
4. Definition of Aggression UNGA Res 3314 (XXIX), UN GAOR, 29th sess (1974).
5. United Nations Security Council (UNSC) Resolution 1373 (2001) 28 September 2001
UN Doc S/RES/1373 (2001).
6. UNSC Resolution 678 (1990) 29 November 1990 UN Doc S/RES/0678 (1990).
7. UNSC Resolution 1264 (1999) 15 September 1999 UN Doc S/RES/1264 (1999).
8. Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change,
‘A More Secure World: Our Shared Responsibility,’ UN Doc. A59/565, 2 December
2004.
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9. Report of the Secretary General, ‘Implementing the responsibility to protect,’ UN Doc
A/63/677, 12 January 2009.
10. 2005 World Summit Outcome Document UN Doc. A/60/L.1.
11. UNSC Resolution 1674 (2006) 28 April 2006 UN Doc S/RES/1674 (2006).
12. UNSC Resolution 1973 (2011) 17 March 2011 UN Doc S/RES/1973 (2011).
13. UNSC 6627th meeting, 4 October 2011, UN Doc S/PV.6627.
14. UNSC 6711th meeting, 4 February 2012, UN Doc S/PV.671.
15. UNSC 6810th meeting, 19 July 2012, UN Doc S/PV.6810.
16. UNSC Resolution 2118 (2013) 27 September 2013 UN Doc S/RES/2118 (2013).
17. 2014 UN General Assembly Dialogue on the Responsibility to Protect (transcribed), 8
September 2014.
18. UNSC Resolution 2235 (2015) 7 August 2015 UN Doc S/RES/2235 (2015).
19. UNSC Resolution 2249 (2015) 21 November 2015 UN Doc S/RES/2249 (2015).
7.2 Secondary Sources.
7.2.1 Books.
1. Abass A, International Law (2nd edn, Oxford University Press 2014).
2. Aust A, Handbook of International Law (2nd edn, Cambridge University Press 2010).
3. Boas G, Public International Law (Edward Elgar 2012).
4. Brierly L, The Law of Nations: An Introduction to the International Law of Peace (Sir
Humphrey Waldock ed, 6th edn, Oxford: Clarendon Press 1963).
5. Brownlie I, Principles of Public International Law (7th edn, Oxford University Press
2008).
6. D’Amato A, International law: Process and Prospect (Transnational law Publishers
1987).
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7. Dinstein Y, War, Aggression and Self-Defence (5th edn, Cambridge University Press
2011).
8. Dixon M, Textbook on International Law (7th edn, Oxford University Press 2013).
9. Franck T, The power of legitimacy among Nations (Oxford University Press 1990).
10. Klabbers J, International Law (Cambridge University Press 2013).
11. Mansell W and Openshaw K, International Law: A Critical Introduction (Hart
Publishing 2013).
12. Stone J, Aggression and World Order: A Critique of the United Nations Theories of
Aggression (University of California Press 1958).
13. Swing J in Henkin L et al (eds), Right v Might: International Law and the Use of Force
(Council on Foreign Relations Press 1989).
7.2.2 Journal Articles
1. Bellamy A, ‘The Responsibility to Protect – Five Years On’ (2010) 24 Ethics and
International Affairs.
2. Bellamy A, ‘A chronic protection problem: the DPRK and the responsibility to protect’,
(2015) 91 International Affairs.
3. Dekker I, 'Illegality and Legitimacy of Humanitarian Intervention: Synopsis Of and
Comments on A Dutch Report' (2001) 6 Journal of Conflict and Security Law.
4. Focarelli C, 'The Responsibility To Protect Doctrine And Humanitarian Intervention:
Too Many Ambiguities For A Working Doctrine' (2008) 13 Journal of Conflict and
Security Law.
5. Gallagher A, ‘The Promise of Pillar II: Analysing international assistance under the
Responsibility to Protect’ (2015) 1259 International Affairs.
6. Gray C, ‘A crisis of legitimacy for the UN collective security system?’ (2007) 157
International and Comparative Law Quarterly.
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7. Green L, 'Enforcement of International Humanitarian Law and Threats to National
Sovereignty' (2003) 8 Journal of Conflict and Security Law.
8. Hannay D, ‘Collective Security and the use of force’ (2005) 367 International
Organisations Law Review.
9. Henderson C, 'The UK Government’s Legal Opinion on Forcible Measures in Response
to the Use of Chemical Weapons by the Syrian government’ (2015) 64 International
and Comparative Law Quarterly.
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American Journal of International Law.
11. Kalkman M, ‘Responsibility to protect bow without an arrow’ (2009) 75 Cambridge
Student Law Review.
12. Nardin T, 'From Right to Intervene To Duty to Protect: Michael Walzer on
Humanitarian Intervention' (2013) 24 European Journal of International Law.
13. Ochoa- Ruiz N and Salamanca-Aguado E, ‘Exploring the limits of international law
relating to the use of force in self-defence’ (2005) 499 European Journal of International
Law.
14. Osterdahl I, 'The Exception As The Rule: Lawmaking On Force And Human Rights By
The UN Security Council' (2005) 10 Journal of Conflict and Security Law.
15. Pommier B, ‘The use of force to protect civilians and humanitarian action: The case of
Libya and beyond’ (2011) 1063 International Review of the Red Cross.
16. Rosenberg S, ‘Responsibility to Protect: A Framework for Prevention’ (2009) 1 Global
Responsibility to Protect.
17. Ruys T, 'Of Arms, Funding and "Non-Lethal Assistance"--Issues Surrounding Third-
State Intervention in the Syrian Civil War' (2014) 13 Chinese Journal of International
Law.
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18. Schachter O, ‘The right of states to use armed force’ (1984) 1620 Michigan Law
Review Association.
19. Stahn C, ‘Between Law-Breaking and Law-Making: Syria, Humanitarian Intervention
And “What The Law Ought To Be”’ (2013) 19 Journal of Conflict and Security Law.
20. Stahn C, ‘Libya, the International Criminal Court and Complementarity’ (2012) 325
Journal of International Criminal Justice.
21. Ulfstein G, ‘Legality of the NATO Bombing in Libya’ (2013) 62 ICQL.
22. Williams P and Boutella A, ‘Partnership peacekeeping: challenges and opportunities in
the United Nations-African Union relationship’, African Affairs.
23. Wills S, 'Military Interventions On Behalf Of Vulnerable Populations: The Legal
Responsibilities of States and International Organizations Engaged In Peace Support
Operations' (2004) 9 Journal of Conflict and Security Law.
7.2.3 Reports
1. Syrian Centre for Policy Research, ‘Syria: Squandering humanity’ (Socioeconomic
Monitoring Report on Syria, May 2014).
7.2.4 Websites and Blogs
1. Evans G, ‘Implementing the Responsibility to Protect’ (Australian National University
15 May 2011) <https://www.youtube.com/watch?v=FjgRMKTWWzs > accessed on 4
December 2015.
2. Evans G, ‘The Evolution of the Responsibility to Protect’ (Stanley Foundation 12
January 2012) < https://www.youtube.com/watch?v=SjepYRGoJlY > accessed on 4
December 2015.
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3. Global Conflict Tracker, ‘Civil War in Syria’ (Council on Foreign Relations, updated
3 December 2015) <http://www.cfr.org/global/global-conflict-
tracker/p32137#!/?marker=6 > accessed 3 December 2015.
4. Mercy Corps, ‘Quick facts: What you need to know about the Syria crisis’ (Mercy
Corps, updated 7 October 2015) <https://www.mercycorps.org/articles/turkey-iraq-
jordan-lebanon-syria/quick-facts-what-you-need-know-about-syria-crisis> accessed 3
December 2015.
5. Meyer J, ‘Knotted Gun Sculpture’ (The Spot for Politics and Policy, 18 December
2012) <http://blogs.denverpost.com/thespot/2012/12/18/denver-assault-weapons-ban-
books-1989/87342/knotted-gun-sculpture/> accessed 3 December 2015.
6. Norton B, ‘The Shocking Statistics behind Syria’s Humanitarian Crisis’ (Think
Progress, 2 June 2014) <http://thinkprogress.org/world/2014/06/02/3443171/syria-
crisis-stats/> accessed 3 December 2015.
7. Schmitt M, ‘International Law and the Use of Force (The Jus ad Bellum)’ (Naval War
College 1 April 2014) < https://www.youtube.com/watch?v=fcGfvWSXEHA>
accessed 4 December 2015.
8. Welsh J, ‘The Evolution of the Responsibility of Protect: Securing Individuals in a
World of States’ (Centre for International Governance Innovation 30 September 2013)
<https://www.youtube.com/watch?v=P3WJZND3z8M> accessed 3 December 2015.
9. Welsh J, ‘R2P is dead, long live R2P: the future of the Responsibility to Protect’
(Stanley Foundation 8 November 2013) <
http://www.responsibilitytoprotect.org/index.php/edward-luck/5223-
stanleyfoundation-r2p-is-dead-long-live-r2p-interview-with-dr-jennifer-welsh >
accessed 6 October 2015.
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7.2.5 Newspapers
1. Aisch G, Almukhtar S, Keller J and Andrews W, ‘The Scale of the Migrant Crisis, From
160 to millions’ The New York Times ( New York, updated 22 September 2015)
<http://www.nytimes.com/interactive/2015/09/10/world/europe/scale-of-migrant-
crisis-in-
europe.html?action=click&contentCollection=Middle%20East®ion=Footer&mod
ule=WhatsNext&version=WhatsNext&contentID=WhatsNext&moduleDetail=undefi
ned&pgtype=Multimedia> accessed 3 December 2015.
2. Reiff D, ‘R2P R.I.P’ The New York Times (New York, 7 November 2011)
<http://www.nytimes.com/2011/11/08/opinion/r2p-rip.html?_r=0> accessed 3
December 2015.
3. Yuhasin A, ‘US General rebrands Isis 'Daesh' after requests from regional partners’ The
Independent (New York, 19 December 2015) <
http://www.theguardian.com/world/2014/dec/19/us-general-rebrands-isis> accessed
10 December 2015.