Use of force, rule-of-law restraints and process

Despite the endorsement in 2005 of the principle that every state, as well the international community, has a ‘responsibility to protect’ (R2P) populations from genocide, war crimes, ethnic cleansing and crimes against humanity, ¹ there remain concerns about the principle’s implementation, especially when such implementation involves the use of force. With a view to building broader state support, United Nations (UN) Secretary-General (UNSG) Ban Ki-moon, with the assistance of a Special Adviser on the Responsibility to Protect, has published a series of annual reports offering guidance on how best to ‘operationalise’ the R2P concept. The first such report, ² released in early 2009, was welcomed for its embrace of a ‘three pillar’ approach that tapped into state support for the concept’s preventive and capacity-building roles, and the notion of the state as bearing the primary responsibility for the protection of its population. Drawing upon the language of the 2005 resolution, the UNSG’s three-pillar approach identified the protection responsibilities of the state as pillar one, international assistance and capacity-building as pillar two, and the provision of a ‘timely and decisive response’ by the international community when a state is manifestly failing to provide protection as pillar three. ³ No set sequence between the three pillars was intended, and nor was one pillar identified as more important than the other – a point highlighted in the report’s front-page summary. Caution was, however, expressed with respect to the international community’s use of military force, with state concerns subsequently heightened by criticism that the UN-mandated intervention to protect civilians in Libya was misused, or abused, so as to achieve regime change.