Responsibility to Protect is not a licence to attack another country without UN authority
There have been increasingly frequent references by politicians and commentators, including some lawyers, to the internationally accepted principle of governments’ “Responsibility to Protect” (R2P) their own citizens from humanitarian disasters and the responsibility (not ‘right’) of the international community to intervene to protect people who are so threatened if their own governments are unable or unwilling to do so. It’s being suggested, quite wrongly, that the R2P allows us and the Americans and others to attack Syria to punish its government for its alleged use of chemical weapons against its own citizens, or to deter it from doing it again, without the need for the UN Security Council to give its approval in advance. In the hope of squelching this dangerous error, I sent the following letter to the Guardian, which published it as the lead letter in its issue of 27 August 2013, in time (I hope) to be read by MPs and others before the Syria debate this afternoon:
According to your report (Kerry: US will act against Assad, 27 August), “the UK and US have both signalled that they are prepared to act [against Syria] without a UN mandate. International law experts say intervention could be legally justified without a security council resolution under the UN’s ‘responsibility to protect'”. According to another report, Douglas Alexander, Labour’s shadow foreign secretary, “did not rule out Labour giving its backing to military intervention without a UN resolution”.
But the 2005 World Summit outcome document in which the heads of state unanimously approved the new international norm of the “responsibility to protect”, subsequently approved by UN security council resolution 1674, states that:
“The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with chapters VI and VII of the charter, to help 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 … on a case-by-case basis…” [my italics].
Former US secretary of state Madeleine Albright and former US presidential special envoy to Sudan Richard Williamson, who co-chaired a working group on the responsibility to protect (R2P), stressed in the group’s report that “R2P’s implementation is to be done in accordance with the UN charter, which means that the central decision-making authority is the UN security council”.
I wonder who are these “international law experts” who advise, absolutely wrongly, that military action against a sovereign state (other than in self-defence) without the authority of the security council can be justified under R2P? According to another report, “Sergei Lavrov, the Russian foreign minister, warned that any attack on Syria without security council sanction would be ‘a crude violation of international law’. He compared the situation to the run-up to the Iraq invasion in 2003”. Lavrov was right on both counts.
Attorney-general Dominic Grieve should act immediately and above all publicly to nip in the bud this dangerous misconception that R2P allows any country to evade the plain requirements of international law as laid down in chapters VI and VII of the UN charter, before its constant repetition is wrongly assumed to legitimise another US-UK act of aggression like that committed against Iraq in 2003.
Brian Barder
London
It seems that Sir Malcolm Rifkind, who refers in his column in today’s Guardian to R2P as if it provided an alternative to Security Council authority for attacking Syria, had not read my letter in yesterday’s Guardian, or the key R2P documents either. This seems a little lax on his part, since he’s a lawyer and Chair of the parliamentary Intelligence and Security Committee as well as a Conservative MP and a former foreign and defence secretary. I hope MPs who contribute to the debate this afternoon will have done their homework more thoroughly.
Footnote: “All Members [of the United Nations] shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” UN Charter, Article 2.4.
Brian
Good letter. Perhaps a more cynical view of even the Great Responsibles’ attitude to international law and their commitments made under it is in order. Or perhaps they are responding to a higher, more sacred, moral imperative.
Brian writes: Thank you for this, Paul. I fear that the more cynical view is fully justified. Listening to this afternoon’s Syria debate in the house of commons, I have been profoundly shocked — but alas, not surprised — by the number of our legislators who have accepted without a murmur the government’s and the Labour leadership’s scandalous and disreputable view that it would be nice to have Security Council authority for an attack on Syria, but that failure to secure it need not prevent us from going ahead with it anyway if we feel so inclined. So much for the rule of law!
I quite agree with your legal reservations, Brian. “International law experts” indeed! This would not be the first and will, alas, certainly not be the last time that such faceles and nameless “experts” have been pulled out of a top hat to justify (if I may be permitted to use a euphemism) aggressive military action.
All this pathetic and painfully hypocritical breast-beating rather reminds me of Frankie Howard’s quip about “the dust in the hair bit” every time that Cassandra put in an appearance, predicting the demise of the city, in his now very antiquated TV comedy show about Pompeii (I’m afraid I don’t remember the name of the show: it was long before I moved to Italy, so at least 40 years ago). All this posturing is so blatantly false that I really wonder why they bother to pretend that it’s anything but pure aggression because that’s what the Pentagon wants and it is the Pentagon, after all, that really rules our lives. Elections be damned: a farce, pure and simple, to keep the masses (i.e. all of us) acquiescent and make believe we can change anything at all by discussing it here and elsewhere.
About the real reasons for this, have you seen Fisk’s article in the Independent? http://www.independent.co.uk/voices/comment/we-should-have-been-traumatised-into-action-by-this-war-in-2011and-2012but-now-8789506.html
Brian writes: Thanks, Pete. ‘Up Pompeii‘, I think it was, and very funny too. Thank you especially for the link to a classic Fisk jeremiad, well worth reading. As a few MPs, echoing Fisk, have been pointing out in today’s debate, it will be hard to explain to a sceptical world why three western powers (US, UK and France) should be preparing to rain down cruise missiles on targets in Syria over the deaths by gassing of 300+ innocent people, however deplorable, when we haven’t done anything at all about the tens of thousands of people being slaughtered without pity for the past two years in Syria and similar thousands currently being murdered by the army counter-revolution in Egypt. Fisk very often hits the nail on the head.
As you know, I have limited tolerance for disputes about legalities when there are more important issues (as it seems to me) for debate. But let me not reopen that. We have now had two attorneys general (is that right?) each, in similar circumstances, giving legal advice, under severe political pressure, which appears to be wrong. Regardless of whether or not that advice goes to the heart of the decisions under consideration, there must be something wrong with a system which consistently throws up such bloopers. Is it not time we removed the post of attorney general from the political madhouse, making the government’s source of legal advice the LCJ? Or at any rate some alternative to the tragi-comic holders of the post in recent years.
Robin
Brian writes: Thank you for this, Robin. I entirely agree. We know from the valiant Elizabeth Wilmshurst’s resignation letter that the government’s principal advisers on international law, the FCO lawyers, strongly disagreed with the legal advice eventually given to Blair by Lord Goldsmith, and that the rest of the cabinet (apart from Jack Straw, presumably) didn’t know about their dissent. The trouble about transferring the job to a judge is that legal advice can’t be given in a vacuum and whoever gives it needs to be kept informed about every situation that might require legal advice by seeing all the major telegrams, correspondence, records of meetings, etc. as well as needing a staff to support his or her work — so it’s really a full-time job, and difficult to combine with performing normal judicial duties on the Bench. But there really ought to be some way of ensuring that the government’s legal advice is not tainted by political pressures — and also that it is published, contrary to traditional practice.
My new post at https://barder.com/4049 is also relevant.
I agree with your analysis and have so argued on my Law and Lawyers blog. Resolution 1674 was preceded by the World Summit Outcome document and paragraph 139 of that document is crystal clear in stating that action is to be via the Security Council. Res. 1674 – passed by the Security Council itself in 2006 – cannot be read as if the Council has handed over its functions to those States which choose to act as policemen.
Brian writes: Thank you for this. I’m very glad to have your authoritative endorsement. I made the point about para 139 of the Summit Outcome document and UNSCR 1674 in my Guardian letter and in my blog post above. The relevant passage and reference were included in Caroline Lucas’s speech in the Syria debate so it’s now enshrined in Hansard too.
There is a distinct argument based on ‘humanitarian intervention’ which is a subject argued about in international law for many years and long before Responsibility to Protect emerged in 2005/6. The British government’s legal opinion referred only to humanitarian intervention and labelled it a ‘doctrine.’ The extent of any such ‘doctrine’ (if it justifies that description) is exceptionally vague. Another argument may be over whether R2P has superseded humanitarian intervention. Difficult questions here and no authoritative answers.
Brian writes: Thank you again. Of course I accept that there exists a body of legal opinion, apparently including the Attorney-General (who doesn’t strike me as a man easily bullied into giving convenient advice in which he doesn’t believe), that believes in some doctrine of humanitarian intervention in spite of the pretty clear wording of the UN Charter, which would be badly compromised if ever the doctrine were to gain general acceptance. Moreover it seems to me to require intellectual agility of an extraordinary kind to hold that such a doctrine can co-exist with the R2P which has the authority behind it of a Security Council resolution and the unanimous endorsement of a world-wide summit of heads of state and government. As I understand it, a doctrine such as this becomes a part of international customary law only when it is almost universally accepted as such by the main legal authorities around the world. It was certainly not so accepted by, for example, the late Lord Bingham, who in his book on The Rule of Law shortly before he died unambiguously declared his opinion that the attack on Iraq had been illegal even if those responsible for it genuinely believed that there were WMD in the country. That alone seems to constitute evidence that the humanitarian intervention doctrine lacks the necessary degree of acceptance by top legal opinion. But, as I have stressed many times already, I’m not a lawyer!
Thank you for your reply. I mentioned humanitarian intervention because that is how the British government sought to justify intervention within Syria and so our discussion would not have been complete without reference to it.
I agree that the idea of humanitarian intervention does not seem to have general acceptance within the international community and it is not possible to point to any definitive legal statement as to when, if at all, such intervention is lawful.
However, some certainly argue that it is possible for one State to intervene in another on a humanitarian basis but only in very limited circumstances which are far from easy to define. Joshua Rozenberg’s article is interesting:
http://www.theguardian.com/law/2013/aug/28/syria-intervention-force-lawful
On my blogs I have links to various other articles.
R2P offers a proper way in which to proceed in relation to Syria and is, I think, would be the preferable way to go. That route involves (as we have discussed) the UN Security Council.
Having said all of this, the impatience of many British (and American) politicians with the UN is palpable and we are seeing, time and time again, States such as the UK doing their own thing. I am convinced that part of this is that British politicians want to have their ‘Falklands / Thatcher moment’ which, they hope, will make them popular with the electorate.