The responsibility to protect

Since the UN Charter’s regime for collective security was established immediately after the Second World War, there have been several significant changes to the global security environment. These, in turn, have created not just political but also legal tensions for the framework then set in place. The principal challenges to the regime are well known (Triggs, 2006, 558). States have continued to use force unilaterally, justifying their decisions to act preemptively or preventively upon a broad reading of the Charter provisions governing individual and collective self-defence. Particularly after 11 September 2001, states have used force in violation of the territorial integrity of other states believed to be harbouring terrorist organizations. And the claim has been made, by developed nations in particular, that international law may now recognize a right to engage in humanitarian intervention, even without Security Council authorization, in order to prevent the commission of largescale genocide and crimes against humanity. It is with this third major development, particularly in its recent incarnation as the ‘responsibility to protect’, that this chapter is concerned. Humanitarian intervention is a relatively new development in international

law. The idea that nations may intervene in the internal affairs of others in pursuit of humanitarian objectives is yet to establish any firm legal footing. There is some recent evidence of state practice that may support a claim that the doctrine has achieved international legal recognition (Chesterman, 2001, 53; Byers and Chesterman, 2003, 177; Gray, 2004, 31; Welsh, 2004, 176; Wheeler, 2004, 29; Byers, 2005, 92; Stahn, 2007, 99). For example, it may be said that India’s intervention in East Pakistan in 1971, Tanzania’s intervention in Uganda in 1979, Vietnam’s invasion of Cambodia in 1978, and the creation by Britain and France of a no-fly zone over Iraq in 1994, are practical examples of the progressive acceptance of such a doctrine in law and political practice (Gordon, 1993, 520; Chesterman, 2001, 140; Roberts, 2004, 78; Weiss, 2007, 40). It is notable, however, that the interveners in these cases

made no claim that their actions were founded principally upon humanitarian considerations. The Security Council itself has authorized military interventions for

humanitarian purposes. It determined that the situation in Somalia in 1992 constituted a threat to international peace and security, and urged member states to pursue all necessary means to create a safe environment for humanitarian relief operations in the absence of Somalia’s consent. It approved the use of force by NATO for humanitarian reasons in Bosnia in 1992. Together with the Organization of African Unity (OAU), the Security Council supported a regional peacekeeping exercise by the Economic Community of West African States (ECOWAS) in Liberia in 1990. And, all too late, it sent a French-led peacekeeping mission into Rwanda to reduce the prospect that the preceding genocide should be reignited. These latter interventions suggest, at the very least, that humanitarian intervention with Security Council authorization may have gained some tentative legal foothold. A further step on the path to formal recognition was taken by the Security

Council in 1999, when it issued a presidential statement on the protection of civilians in armed conflicts, and soon after approved two resolutions in relation to the matter.1 The two resolutions consolidated the principle that where governments attacked their own citizens or denied them humanitarian relief, such action may in itself constitute a threat to international peace and security. In so doing, the Council opened the door to the possibility that it might take coercive action under Chapter VII of the Charter where large-scale loss of civilian lives was in prospect.2 It was not, however, until the lead-up to the World Summit that the United Nations took seriously the task of conceptualizing and endorsing a more comprehensive doctrine of humanitarian intervention in response to genocide and other similar intra-state crimes.