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R2P and Libya: (Still) A Tool of Discourse

By Craig Forcese

Cross-referencing: Ch. 14, p.857 et seq

In part because of its Canadian ties, the famous "responsibility to protect" (R2P) concept is commonly invoked in Canadian discussions of use of force in international affairs.  These discussions are sometimes short on doctrinal clarity, and R2P is occasionally perceived as some sort of self-standing justification for armed intervention in response to humanitarian crises.  It is not.  Instead, as the recent Libya experience suggests, it is at best a moral justification for the conventional exercise of Security Council powers.

As discussed in International Law, the R2P concept stems from a 2001 report of the International Commission on Intervention and State Sovereignty. This study had a discernable impact on, among other things, the Report of the UN Secretary-General's High-Level Panel on Threats, Challenges and Change (2004), and then on the 2005 World Summit Outcome, a UN General Assembly resolution.  In 2006, the Security Council itself issued SC Res 1674, invoking the R2P concept (at para. 4) in outlining the responsibilities of states in protecting civilian populations from genocide, war crimes, crimes against humanity and ethnic cleansing (itself typically a subset of at least one of the first three crimes).

None of this makes of R2P a legal principle that relaxes conventional strictures on the use of force in international affairs, or the admonishments of Article 2(4) of the UN Charter barring such use of force.  Non-consensual use of force on the territory of another states must still fit within the envelope of self-defence or Security Council authorization.  While the precise contours of these concepts may brook disagreement (witness the 2003 Iraq war), they are not infinitely pliable and simply do not admit of a Kosovo-style humanitarian intervention.  (The 1998 air war in Kosovo was not, in its original guise, authorized by Security Council resolution and was never plausibly an exercise of self-defence.  It was, to paraphrase the most prominent distillation of the conflict, illegal, even if perceived by the NATO allies and like-minded entities as legitimate.)

R2P does not change this fact -- it is no treaty and there is no serious claim to the customary international law status of a self-standing right to intervene militarily in humanitarian crises, simply because it is a humanitarian crisis.

R2P is, instead, a useful concept for the Security Council in justifying its exercise of its Chapter VII powers.  The first meaningful application of this "code of conduct" is SC Res. 1973, authorizing force (using the conventional code of all methods necessary) to protect civilians and, among other things, impose a no fly zone over the country.

This is not, of course, evidence that R2P will heretoafter guide Security Council deliberations -- that body remains a political one and selective in its deliberations (why, e.g., intervention in Libya but not the several other Middle Eastern states with proto-civil wars brewing or underway?).   And so R2P may be a useful addition to the parlance and moral justifications available to the Security Council in exercising its powers.  It does not, however, change those powers or compel their deployment. 

Still, more optimistically, there may come a day when the concept becomes so engrained in the international discourse that the Security Council may find it difficult politically simply to decline to exercise its powers in situations where R2P properly applies.  Put another way, it weakens the conventional discourse on sovereignty, invoked by at least some Security Council members to justify abstinence.  It internationalizes what not so long ago was the purely domestic.