The Responsibility to Protect: Getting the Law Right Matters
Charles J. Dunlap, Jr.
This article originally appeared on Duke University’s Lawfire web site. It is reposted here with permission from the author.
In a January 25th op-ed (published online December 19th) the usually reliable Christian Science Monitor praises the 54-nation African Union (AU) for deciding to deploy 5,000 troops to strife-ridden Burundi – over that nation’s objections. Citing what it sees as UN Security Council inaction, the Monitor claims:
The move was the first time the AU has invoked a rule to intervene in a country without its consent in order to prevent a mass atrocity. This rule, known as “the responsibility to protect” was adopted by UN itself a decade ago.
Actually, there is no UN “rule,” per se, known as “the responsibility to protect” (RTP), and the implication that one exists that can justify a military intervention into a sovereign country over its objections does violence to the principle of the rule of law, and portends a further erosion of international law’s ability to limit the use of force.
To be sure, there is a grave situation in Burundi. On on January 19th the US said it was “deeply alarmed by reports…serious human rights violations and abuses in Burundi, including eyewitness reports of mass graves, a sharp increase in alleged enforced disappearances and torture, and reports of sexual violence by security forces.” It (very rightly in my view) called upon Burundi to “permit an immediate, impartial investigation into these recent allegations and to hold accountable all those found responsible for crimes.”
Importantly, the US position is that “the only way to resolve the crisis gripping the country is for all parties to agree promptly to engage in internationally-mediated, inclusive dialogue without preconditions.” Of course, this is not the same thing as calling for deploying military force as the Monitor does.
What is RTP? As one writer puts it, RTP “insists that states have a responsibility to protect their own citizens from war crimes, crimes against humanity, genocide and ethnic cleansing. If a state is unwilling or unable to do so, R2P dictates that the international community assumes that responsibility.” In it is the legal scope and authority of that “responsibility” that is in question here.
In an excellent 2013 paper, Jay Crush , then of the University of Kent, explains that RTP is not a legal concept, but rather a political one. He points out that it was never intended to justify the use of force outside the UN’s existing legal architecture. That structure permits the lawful use of force over the objection of the state concerned in only two situations: 1) based on a UN Security Council resolution (USCR); or 2) based on self-defense pursuant to Article 51. Neither condition exists today to legalize the incipient military invasion the Monitor lauds.
RTP can, however, be used to justify and support a UNSCR, but not to substitute for it. And there is history of RTP-based UNSCRs worthy of examination. That said, it is also true that there are instances of the use of force outside of the UN process. For example, NATO’s 1999 bombing campaign against Serbia (Operation Allied Force) did not have the backing of a UNSCR specifically authorizing the use of force, and its rationalization is often bumper-stickered as “illegal but justified.”
But the wisdom of that reasoning has been energetically attacked by Athea Roberts (and others) who persuasively argue its dangers. Roberts contends, among other things, that “[a]ttempting to completely divorce legality and legitimacy can ossify the law and undermine its relevance, which increases the risk of self-serving exceptionalism.” I agree; it is a mistake, in my opinion, to think of Allied Force as establishing a new international norm.
Lawyers like to say that “bad facts make bad law” – and that could be at play here. A terribly urgent situation may indeed exist in Burundi that needs to be promptly addressed, but let’s not pretend that the decision to deploy troops as the solution fits within current international law, or that some existing “UN rule” permits it absent Security Council approval. Sure, the law may need to be changed, but if RTP is to be celebrated as a concept that can by itself obviate the current prohibitions on the use of military forces, we have to be prepared for other actors to use it in a way that may not be to our liking.
About the Author(s)
Charles J. Dunlap Jr., the former deputy judge advocate general of the United States Air Force, joined the Duke Law faculty in July 2010 where he is a professor of the practice of law and Executive Director of the Center on Law, Ethics and National Security. His teaching and scholarly writing focus on national security, international law, civil-military relations, cyberwar, airpower, counter-insurgency, military justice, and ethical issues related to the practice of national security law.
Dunlap retired from the Air Force in June 2010, having attained the rank of major general during a 34-year career in the Judge Advocate General Corps. In his capacity as deputy judge advocate general from May 2006 to March 2010, he assisted the judge advocate general in the professional supervision of more than 2,200 judge advocates, 350 civilian lawyers, 1,400 enlisted paralegals, and 500 civilians around the world. In addition to overseeing an array of military justice, operational, international, and civil law functions, he provided legal advice to the Air Staff and commanders at all levels.
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Edited and added to a bit:
If the Soviets/the communists had won the Cold War instead of the West,
Then would we not expect that they would have tried to institute something of a R2P (actually R2T -- see my comment below) policy/concept also? Herein,
a. Using very similar "universal," "ultimate," etc., arguments to our own (but these, of course, of the communist variety). And, these,
b. To achieve a very similar result. This being:
c. To overcome the obvious obstacle/barrier/burden that sovereignty presents to the spreading of one's own unique way of life, one's own unique way of governance and one's own -- and correspondingly unique -- values, attitudes and beliefs?
Thus, something of an "expansionist" and "promotion of one's own religion" argument -- as noted by Hans Morgenthau in his "To Intervene or Not to Intervene:"
"The United States and the Soviet Union face each other not only as two great powers which in the traditional ways compete for advantage. They also face each other as the fountainheads of two hostile and incompatible ideologies, systems of government and ways of life, each trying to expand the reach of its respective political values and institutions and to prevent the expansion of the other. Thus the cold war has not only been a conflict between two world powers but also a contest between two secular religions. And like the religious wars of the seventeenth century, the war between communism and democracy does not respect national boundaries. It finds enemies and allies in all countries, opposing the one and supporting the other regardless of the niceties of international law. Here is the dynamic force which has led the two superpowers to intervene all over the globe, sometimes surreptitiously, sometimes openly, sometimes with the accepted methods of diplomatic pressure and propaganda, sometimes with the frowned-upon instruments of covert subversion and open force."
http://diplomatsdailylog.com/wp-content/uploads/2012/07/morgenthau-to-i… (See bottom of page 427/95 and top of page 428/96.)
The "religious" (see Morgenthau above) Cold War now being won, "sovereignty," quite understandably, is now being seen (a) as standing in the way of the victorious party and (b) as one of the next obstacles that -- in one way or another -- must be overcome?
This argument possibly stated another way:
If there had been a clear and decisive winner of the 30 Years War, then do we believe that "sovereignty," as we know it today, would have inured?
Herein, to understand why, since there IS a clear and decisive winner of the 50 Years War (the Cold War), the concept of sovereignty (as we know it today) -- divined in non-similar times -- has come, quite understandably and quite naturally, to:
a. Be seen as ill-fitting/not applicable/OBE re: today's exact opposite (clear and decisive victory v. stalemate) setting. And to, thus,
b. Find itself -- as one should reasonably expect in these such circumstances -- as standing squarely in the victorious parties' "revocation" -- and/or "work-around" (think R2P/R2T) -- cross-hairs.
RTP can become international law if it follows a valid mandate from a universally recognized organization like the UN. But then it is more «duty» than «right».
RTP without a valid mandate is like Russian SOF in Donbass or polite green men in Crimea.
This is one of the reasons why Turkey doesn't go one step further in Syria.
To quote the author, «if RTP is to be celebrated as a concept that can by itself obviate the current prohibitions on the use of military forces, we have to be prepared for other actors to use it in a way that may not be to our liking».
Nuno Rogeiro
Lisbon
Portugal
The real issue here is that no one, no "Combat Commander", no service chief is actively working or thinking about the laws of war. Our vast DOD organization and Joint Command system is completely negligent on any matters concerning the laws of war. Our generals, immediately after calling themselves "warriors", would rather spout how they follow the "rule of law". The rule of law does not exist on the battlefield...only the laws of war exist in that bloody mess far and away for the general's comfortable offices. Our military leadership have left the laws of war discussion, debate, implementation and battle to academics who do not serve the troops on the battle, leaving US combatants open to the losses of law fare and "Strategic Legalism".
For Charles Dunlap: thanks for getting folks to think about this issue and I agree, if it works for us it will sure as hell will work for the bad guys.
Edited to (a) primarily correct a major typo from "may not" to "may now" at the third sub-paragraph "b" below and to (b) more-properly cite the UN Charter, and other important documents and ideas, as authority.
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The best way to understand "Responsibility to Protect" (R2P) is to understand it as "Responsibility to Transform" (R2T) outlying states and societies more along modern western political, economic and social lines.
Thus, not to understand R2P/R2T from the perspective of a lack of military, police, etc., protection but, more-generally and more-correctly, from the perspective of:
a. The right of people to a more-positive existence.
b. As is said to be provided for by a more modern western way of life, and a more modern western way of governance, etc. These such rights being:
c. Described at, and indeed enshrined in, the UN Charter and in other important (primarily western) documents and ideas.
Explanation:
Such things as mass atrocities, genocide, etc., are said to:
a. Not be found in states and societies which have been adequately ordered, organized and oriented more along modern western political, economic and social lines. But these such bad things (and most others) are said to:
b. Be endemic to states and societies which, as yet, have not been so organized, ordered and oriented.
Thus, when an instance of mass atrocity, genocide, etc. presents itself, what this exactly proves (see "a" below) and what this exactly provides for (see "b" and "c" below) is that:
a. The subject state -- where these such improper events are occurring -- OBVIOUSLY HAS NOT fulfilled its Responsibility to Protect -- i.e., its Responsibility to Transform more along modern western political, economic and social lines -- obligations. (Thus, and therefore, the impending mass atrocity, the impending genocide, etc.) This providing that, under the R2P/R2T concept:
b. The United Nations, et. al, may now step in to ensure that these nations are, thus, properly modernized and transformed. (Military forces -- in the interim -- to be sent in simply to deal with the ramifications [mass atrocity; genocide] of these such governing failures.). Thus allowing that:
c. The citizenry of these improperly governed states and societies -- and by logical extension the world at-large(?) -- are provided the more-positive, safe, secure and prosperous way of life in which they all are entitled. (Under the UN charter, and under other important, primarily western, documents and ideas.)
Conclusion/Summation/Closing Argument:
Sovereignty?
This can, thus and as described above, be legally pushed aside should the subject regime not fulfill its "provide the conditions for a more-positive way of life" responsibilities.
This exact failure being proven by the fact that this state and its societies are not adequately organized, ordered and oriented more along modern western lines -- and that, by reason of this failure -- a mass atrocity/a genocide, etc., is now looming/is now underway.
(The R2P/R2T/human rights advocate, thus, herein and accordingly, resting her/his case.)
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Note: All this legal stuff is way above my pay grade, but I have attempted to overcome this obstacle by using such "ultimate" legal documents(?) as the UN Charter and our own foundational documents and ideas in an attempt to bolster/support my argument/attempt above. It is for you who know these things much better than I to decided if, thereby, and with luck, I may have actually "Gotten the Law Right" here.