41

The International Law and Policy regarding
the Use of Force, Humanitarian Intervention,and the Responsibility to Protect
1

Chip Pitts

Our first task is to properly define the concept being addressed.
“Humanitarian intervention” as defined for purposes of the conference that gave2

rise to this book clearly does not include such actions as the drone attacks thathave been increasing in Pakistan and elsewhere under the rubric of what has
been called the US “Global War Against Terror (ism/ists).” More broadly, theconcept is distinguishable from counterterrorism actions aimed at protecting astate’s own nationals. And of course any doctrine of humanitarian intervention,
properly speaking, should not include military actions taken under the pretextof humanitarian intervention but actually undertaken mainly for other reasons.
It is common to limit the concept of humanitarian intervention solely to3military or, at least, coercive intervention; but while our main focus remains
the use of force it is worth recognizing that it is often helpful to conceive
creatively of an entire spectrum of actions available to be taken forhumanitarian purposes, ranging from fact-finding to financial, economic, legal,
4

diplomatic/political and policing as well as military means. Military actions, as
always, should be undertaken only as a last resort after all other approaches
have been tried, since military actions inevitably involve unintended
consequences often including significant loss of life as well as other humanrights violations.
While humanitarian intervention and the Responsibility to Protect doctrine
relate to trends involving recognition of non-state actors and the protection of
5

civilians, including responsibilities for multinational corporations, it is thus also
improper to narrowly circumscribe the concept of humanitarian intervention bysaying that it refers only or mainly to those situations where non-state actor
armed groups and rebels are “asserting identity” against the “processes of42

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globalization,” a position ascribed to ICRC president Cornelio Sommaruga in ourconference concept paper. Such a situation may have characterized, say, Kosovo,
but it hardly seems to capture the essence or even accurately describe the main
aspects of other situations where humanitarian intervention has been called foror invoked in recent years, such as those of the Sudan, the most recent war in
Iraq, or even more recently the intervention in Libya (or the general nonintervention, as of the date of writing, in Syria).
Calls for humanitarian intervention are not limited to any particularpolitics or ideology (except perhaps human rights); both previously and currently
in the US, for example, neoconservatives like William Kristol, Paul Wolfowitz,
and Robert Kagan have often joined liberal hawks in making such calls (ashappened in the case of Libya with respect to Hilary Clinton, Samantha Powers,
6and Susan Rice of the Obama administration). And it bears recalling thatstrong policy reasons may support humanitarian intervention, including“general considerations of humanity, and possibly even the deterrence of acts ofinternal aggression and repression.”

7

The reality is that motivations for humanitarian intervention are rarely
pure or simple. Even if authentic humanitarian motivations are part of the mix,
strategic considerations of national interest are inevitably involved as well.
Contrary to conventional wisdom, humanitarian intervention as we have8

defined it is, broadly speaking, neither particularly new nor newly controversial.

Precedents go back centuries, and existing international customary and treaty
law have long entitled states to intervene for humanitarian reasons, undercertain conditions. For many decades now, moreover, states have been obligatedin various ways to prevent and punish what we now call genocide, war crimes,
and crimes against humanity.
What appears most novel is the attempt under some versions of the new“Responsibility to Protect” (“R2P” doctrine) to expand traditional notions ofhumanitarian intervention beyond established international law to embraceactions by individual states or collective or regional action outside of or even in
opposition to legal authorities including, today, the will of the UN Security

The International Law and Policy regarding the Use of Force, Humanitarian Intervention, and the Responsibility to Protect

439Council.

10

Whether that is wise policy or advisable in the future remains debatable,
but such a broad doctrine cannot be said to be required or even allowed as a
general matter by current international law.

The Legal History Regarding the Use of Force
The legality of humanitarian intervention falls within the legal rules
pertaining to recourse to war or armed force (jus ad bellum), as opposed to therules governing the conduct of war (jus in bello). Legal rules governing recourse
to war go back at least as far as Thucydides, whose History of the Peloponnesian11

War recounts debates on the subject. Natural law conceptions from Aristotle
and the Greek Stoics influenced law relating to war and force between princes
and what we would call today “non-state actors” such as armed peasants orgroups, just as natural law conceptions influenced other realms of law. Chinese
12

and Islamic scholars developed rules governing constraints on war, and13

Christian Scholastics such as St. Augustine and St. Thomas Aquinas took thelead in constructing “just war” theory, which as we will see continues toinfluence today’s global legal rules. This allowed war to be waged so long as it
was, inter alia, for a “just cause,” with “right intent” (to do good and avoid evil),and with “right authority.”

14

As the new Westphalian system of sovereign states was coming together in15

the early seventeenth century, the Dutch jurist Hugo Grotius wove together
these separate strands of natural law and just war theory in his treatise On the
Law of War and Peace (1625). Humanitarian intervention had been recognized
16

before Grotius in the writings of the Scholastics, Suarez and Gentili, andamong the just causes Grotius included for states going to war under the law ofnations was to protect innocents against the domestic violation by a state of thelaws of nature. Grotius dismissed the counterargument that this could serve asa pretext for war undertaken for other purposes, arguing that “a right does not
at once cease to exist in case it is to some extent abused by evil men.” Recent
invocations of R2P by Zimbabwe’s Robert Mugabe and by the Foreign Minister
17

of Syria show the ongoing potential for such abuse.

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This early rationale for humanitarian intervention well-served the imperialinterests of the Netherlands, with whom Grotius was trying to ingratiate
himself. It is also worth noting that the influential conceptions of Grotius – prosovereignty but leaving room for humanitarian intervention – occurred atroughly the same time as the Westphalian settlement which nominally solidified
the norms of sovereignty and non-intervention in the years leading up to 1648.
And so the link between humanitarian intervention and imperialistic
rationalizations has a venerable pedigree which continued to assert itself for
18

19

centuries and still gives ammunition to critics today.
The following century, the Swiss jurist Vattel was more skeptical of but stillallowed room for humanitarian intervention, being more concerned about the20

risk of pretextual interventions. Vattel’s ambivalent recognition reflected thelongstanding debate that has characterized this subject. After Jeremy Benthamcoined the term “international law”

21

and his positivist disciple John Austin

further narrowed its scope and ability to constrain nation states, international22

law became even more utilitarian and rationalist in the eighteenth century –increasingly divorced from even the idea of limits on force that were present in
its natural law, “just war,” and Grotian foundations.
By the nineteenth century, as Von Clausewitz put it, war became merely
23

policy pursued by other means, as international law and imperialist practiceallowed broad room for the use of force. Most international legal publicists
accepted that a right of humanitarian intervention existed, although they24

differed about the circumstances in which it applied. The growing prevalenceof war and availability of bloody new technologies such as the machine gun andsteamships, however, led to a call for renewed limits at the end of the nineteenth
century. The weak limits of the 1899 and 1907 Hague Conventions resulted. The
25

horrors of World War I prompted the resurgence of “just war” concepts, as
modified by a shift toward more institutionalized collective security (as opposed
to unilateral security), with the 1919 establishment of the League of Nations
including its arbitral and cooling-off periods, and then the 1928 Kellogg-Briand
Pact (which among the 40 initial contracting states attempted to ban recourse to
war except, implicitly, in self-defense).

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The atrocities of World War II finally resulted in the creation of the United
Nations in 1945. The UN Charter’s Article 2 (4) requires all Members to “refrainin their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any othermanner inconsistent with the purposes of the United Nations.”

26

The UN’s

purposes include maintaining the peace (by collective security if necessary) as
27

well as promoting human rights. The only exceptions to the bar against the useof force are (i) forceful collective security measures approved by the Security
Council under UN Charter Article 42, to preserve the peace or human rights,
and (ii) self-defense against an armed attack as provided for in Article 51. The
reference to “threat or use of force” and the authorities in the UN Charter
clearly encompass actions taken under the rubric of “humanitarian
intervention,” which are thus illegal without but legal with Security Council
approval.
While Article 2 (7) provides that “[n]othing contained in the present Chartershall authorize the United Nations to intervene in matters which are essentiallywithin the domestic jurisdiction of any state,” it also provides explicitly that
“this principle shall not prejudice the application of enforcement measures
under Chapter VII.” So the UN Charter endorses sovereignty, but sovereignty as
including responsibility (a concept not only going back to Locke and the social
contract theorists of the Enlightenment, but partaking of Confucian and othertraditions of the duties of rulers and even the right to revolt against tyrants).
From the outset, therefore, the sovereign equality on which the United Nations
was founded was made subject to Security Council authority in fulfillment of the
UN’s purposes. Sovereignty today no longer connotes impunity for atrocities.
More like the Grotian than the Von Clausewitz approach, the bias of the
UN Charter is thus both anti-war and tolerant of certain defensive andprotective uses of force. The UN charter could even be said to embody coreelements of just war theory (“just cause,” “right intent,” and “right authority”),
since the Security Council authorizes the use of force only upon a determinationthat there has been a threat to or breach of international peace, akin to the
Grotian notion of states acting to enforce the natural order of peace when that28

order is threatened by another state.

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The overarching importance of human rights to maintaining peace (and as
grounds for collective security action when rights are grossly abused) received aboost with the enactment of the Universal Declaration of Human Rights(UDHR) and the associated treaty network (including treaties such as the
Genocide Convention). The UDHR is widely considered an authoritative
29

interpretation of the human rights provisions of the UN Charter, and many
30

parts of it are recognized as customary international law. Not only customary31

but also treaty law has long obligated states to punish genocide, war crimes,
and crimes against humanity (which crimes may also encompass the atrocity of
ethnic cleansing, which although not usually considered a crime in its own right32

under international law can constitute one of the other crimes and is anothergross human rights violation typically included in R2P). Rape and sexual
violence can also amount to war crimes, crimes against humanity or constitutive
33

acts with respect to genocide, as the Security Council, various tribunals, treaty
bodies, and regional mechanisms have noted. The protection responsibilities ofstates thus derive “from the pre-existing and continuing legal obligations ofStates, not just from the relatively recent enunciation and acceptance of the34

Responsibility to Protect.” Upon its enactment, the UN Charter reflected thiscustomary and conventional law in its provision for collective security as
authorized by the Security Council (which can include coordination with
regional organizations like NATO).
Creative efforts in the wake of the NATO bombing in Kosovo to assert aslegal a broader right of humanitarian intervention even absent Security Council
35

authorization, including under the rubric of an expansive version of the “R2P”
doctrine allegedly allowing this, have not succeeded to date (as discussed in
more detail below). Several of the leading NATO nations participating took
pains to stress the Kosovo operation’s exceptional nature and limited
36

precedential value in law. In fact, unilateral military action risks being
37

considered the crime of aggression.

The upshot of all this is that under established international law, military
action is not legal unless it is either self-defense against armed attack (ascontemplated by article 51 of the UN charter) or collective action approved by
the Security Council. This approach leaves room for humanitarian intervention

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approved by the Security Council, but it does not leave room at least ininternational law for humanitarian intervention that does not receive Security
38

Council approval.

Review and Analysis of Recent Legal Developments, especiallythe “Responsibility to Protect”
The genocides of the 20th century occurring all over the world -- ranging
from Armenia, to the Holocaust in Europe, to Cambodia, to the former
Yugoslavia, to Rwanda, to Darfur -- have been a major impetus to calls for more
effective legal and non-legal mechanisms to prevent and/or halt atrocities
through various forms of humanitarian intervention, including military and39

40

non-military. This is important to stop the immediate atrocities occurring, butalso to prevent the ongoing and systemic consequences from failing to prevent
such atrocities (such as those still apparent in the DRC stemming from thefailure to intervene to prevent the Rwandan genocide). Like the International
Criminal Court and the special tribunals established in the wake of the Rwanda,
Cambodia, Sierra Leone, and the former Yugoslavia therefore, humanitarian
intervention is considered by many to be a way to uphold the rule of law globallyand make a major contribution to addressing the enforceability gap that haslong plagued international law.
The Late 20th Century Context and the Role of MSF
The doctrine of humanitarian intervention was given a boost when the
nongovernmental organization Médecins sans Frontières (“Doctors without
Borders” or MSF), led by co-founder and later French Foreign Minister Dr.
Bernard Kouchner, advocated during the 1980s for a right and duty tointervene, regardless of sovereignty, to stop atrocities such as those that41

occurred during the war for Biafran secession in the late 60s. The Frenchgovernment under President François Mitterrand included the notion in several
42

UN resolutions, but the concept was neither fully developed nor supported andobviously failed to be deployed to prevent atrocities in Somalia, the Balkans, or
Rwanda.

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The Role of Kosovo and the Independent International Commission on
KosovoWhen the UN Security Council failed to approve the use of force to protect
the Kosovar Albanians against Serbian atrocities, NATO intervened in 1999
without Security Council authorization, expressly invoking a humanitarian
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44

rationale although NATO certainly had mixed motives for the intervention.
45

The Independent International Commission on Kosovo established in August
1999 by the Prime Minister of Sweden and including Justice Richard Goldstoneof South Africa, famously labeled the intervention “illegal but legitimate.” ThenUN Secretary-General Kofi Annan responded to the resulting controversy at thetime of the UN General Assembly in September 1999 by issuing calls in several
different fora (ranging from his millennium report We, the Peoples, to The
46

Economist magazine) for the international community to address the dilemmas
highlighted by Kosovo regarding how to protect human rights while respecting
sovereignty.
The Role of the International Commission on Intervention and State
Sovereignty (ICISS)47

The International Commission on Intervention and State Sovereignty(ICISS) was another ad hoc commission, created in September 2000 in part tohelp resolve this challenge. The government of Canada was a prime moverbehind the ICISS and the UK government strongly supported the effort as well.
The nearly all-male ICISS, co-chaired by former Australian Foreign
Minister Gareth Evans and former Algerian diplomat Mohamed Sahnoun,48

presented its report, The Responsibility to Protect, about a year later -- in
December 2001. The report reiterated the tension between what it called the“internationalization of the human conscience” and what others viewed as an
alarming breach of the established order of state sovereignty on whichinternational peace and stability depended. The report defines the R2P as “theidea that sovereign states have a Responsibility to Protect their own citizens
from avoidable catastrophe – from mass murder and rape, from starvation – butthat when they are unwilling or unable to do so, that responsibility must be

The International Law and Policy regarding the Use of Force, Humanitarian Intervention, and the Responsibility to Protect

borne by the broader community of states.”

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The report was careful to distinguish R2P from counterterrorism actions,although it problematically and uncritically assumed that military responses toterrorism were fully justified under the article 51 right to collective or individual
50

self-defense in the UN Charter.

The ICISS Report’s Articulation of a Responsibility to Protect
The R2P identified by the ICISS is very broad indeed: it applies tosupersede the principle of non-intervention whenever “a population is suffering
serious harm, as a result of internal war, insurgency, repression or state failure,
and the state in question is unwilling or unable to halt or avert it.” The contentsof the duty is said to include three “elements” or “sub-duties”: (i) a priorresponsibility to “prevent” that supposedly obligates the international
community to address “both the root causes and direct causes of internal conflictand other man-made crises putting populations at risk,” (ii) a subsequent
responsibility to “react” that may include coercive measures like sanctions, arms
embargoes, international prosecution or “in extreme cases militaryintervention,” and (iii) a responsibility to “rebuild” that envisions “full assistancewith recovery, reconstruction, and reconciliation, addressing the causes of theharm the intervention was designed to halt or avert.”
By putting the bookends of prevention and rebuilding around a more
broadly defined central obligation to react, the ICISS usefully called attention to
the fact that these decisions are not and should not be made in a vacuum, but
are both temporally and substantively connected in a continuum of obligations.
It would clearly be a major advance, and exponentially less costly in terms of
lives saved as well as monetary expenditures, if the UN and the international
community could more effectively and proactively prevent atrocities before theyoccur, instead of merely reacting to them afterwards. And that should bepossible, as violence on this scale typically is accompanied by planning,
preparation, and warning signs that could be the basis for greater awarenessand preventive action.

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Yet what the ICISS “giveth,” the ICISS can “taketh away.” After asserting a
staggeringly broad right to intervene even militarily, the ICISS drew implicitly
on “just war” theory as complemented by common sense and a dash of realism in
an attempt to place boundaries around the greatly liberalized authority to use
military force that it urged. How successful they were in influencing real-worldpractice remains very open to question.
The “Just Cause” Threshold and Four Precautionary Principles
The ICISS description of R2P very helpfully set forth a number of thresholdand precautionary “core principles.” As an initial matter, the militaryintervention must meet a “just cause threshold” of “serious or irreparable harm”
occurring “or imminently likely to occur” to human beings, that involves:
A. large scale loss of life, actual or apprehended, with genocidal intent or
not, which is the product either of deliberate state action, or state neglect
or inability to act, or a failed state situation; or
B. large scale ‘ethnic cleansing’, actual or apprehended, whether carriedout by killing, forced expulsion, acts of terror or rape.
These sound reasonable enough; putting aside the fact that from theindividual perspective a violation of that individual’s rights is what matters, it
makes sense to have at least some rough quantitative as well as qualitative
thresholds as prerequisites to intervention, and a requirement that the harm beserious and “large-scale” is as good as most, although the fact that they can be“apprehended” as well as actual – while understandable and important -- raises
obvious potential for abuse.
The same may be said for the other “precautionary principles.” While the“right intention” of halting or averting human suffering supposedly must be the“primary purpose” of the operation, said to be “better assured with multilateral
operations, clearly supported by regional opinion and the victims concerned,”motives are obviously difficult to prove and the question of motives has often
been proven to be quite capable of manipulation historically. Thus,
humanitarian motives were invoked in connection with the Japanese occupation

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of Manchuria, Mussolini’s invasion of Ethiopia, and Hitler’s invasions of Austria
51

and Czechoslovakia.

At least the ICISS version of R2P points to the possible supporting evidenceof humanitarian motive to be found in “multilateral operations, clearlysupported by regional opinion and the victims concerned”: but is this evidence
reliable? After all, multilateral operations as well as unilateral can beundertaken for cold-hearted reasons of national interest as well as
humanitarianism, “regional opinion” is not always “clear,” and aren’t there
usually contesting allegations regarding who the real “victims” are in suchsituations? Such difficulties have led some scholars to largely cast aside
considerations of motive, focusing instead on the evidence emerging afterward,
especially whether the operations focused on humanitarian goals, ended
afterwards, and did not extend for example to improper resource appropriation52

or control. While relevant, post-hoc analysis fails to provide adequate guidancein advance of a given operation, meaning that some analysis of motive is likely
to remain relevant at least to determine whether an operation passes someminimal “smell test,” so long as the usual existence of non-humanitarian
motives in addition to humanitarian motives does not preclude an action
otherwise passing muster.
After “right intention,” the second “precautionary principle” is the classic
one that military intervention is justified only as a “last resort”– to be used only
after “every non-military option for the prevention or peaceful resolution of thecrisis has been explored, with reasonable grounds for believing lesser measureswould not have succeeded.” While this principle is just as crucial as therequirement for the “right intention” of an authentic and primary humanitarian
purpose, it too has all-too-often been more honored in the breach, historically,
than in the observance.
The third “precautionary principle” is another classic one from the law ofarmed conflict/law of war (which is often oxymoronically called humanitarianlaw): proportionality. This requires that “[t]he scale, duration and intensity ofthe planned military intervention should be the minimum necessary to secure
the defined human protection objective.” This principle remains an important

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and laudatory attempt to restrain the excesses of war, and the fact that it, too, isoften subject to the vagaries of debate and interpretation in no way makes it
any less welcome in the humanitarian intervention context.
The fourth and final “precautionary principle” also derives from “just war”
theory: reasonable prospects of success in halting or averting the suffering
which has justified the intervention, with the consequences of action not likely
to be worse than the consequences of inaction (thus overlapping with theproportionality principle to some extent in contemplating that more good thanharm be done). Again, this is a vital and laudable limiting principle, but one
similarly subject to human biases, cognitive errors, and flawed assumptions ofsuccess that have plagued military actions throughout history including,notoriously, the recent operations in Afghanistan, Iraq, and arguably perhaps
Libya today. In short, this one is also “easier said than done.”“Right Authority” and Sound Operations
The law of armed conflict/law of war also influences two other requirements:right authority, and sound operations. In terms of “right authority,” even the
ICISS version of R2P generally maintains the primacy of the UN Security
Council, which is charged with seeking “adequate verification of facts orconditions on the ground that might support a military intervention” and acting“promptly” when there are allegations of large scale loss of human life or ethnic
cleansing. The Permanent Five members of the Security Council are urged not
to exercise their veto power when a majority of the Security Council agrees,
unless their “vital state interests” are involved, according to a new “Code of
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Conduct” the ICISS recommends. If the Security Council rejects or fails to act,
the ICISS contemplates that there could still be authorization by the UN
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General Assembly (acting under the “Uniting for Peace” procedure), or by a UN
Charter chapter VIII regional organization like NATO. The ICISS seems to takea quite aggressive interpretation of the Uniting for Peace authority of theGeneral Assembly, which by its terms is limited to making legally non-binding“recommendations” as opposed to authorizations regarding military force

55(although the General Assembly can investigate and has roles in mediation andpeacekeeping as well). Moreover, the ICISS contemplates that action in theThe International Law and Policy regarding the Use of Force, Humanitarian Intervention, and the Responsibility to Protect

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regional organization case, putatively unlike the General Assembly alternative,
would still be subject to “seeking subsequent authorization” from the Security
Council – although the time frame for this is undefined and, especially if the
Security Council previously rejected the action, this would seem to be amodification of current law and one that could open the door to significant
erosion of Security Council authority as well as various unintended
consequences and risks. The ICISS Responsibility to Protect report also opens
the door to military intervention unapproved by the Security Council byreminding the Security Council that [it]:. . . should take into account in all its deliberations that, if it fails todischarge its responsibility to protect in conscience-shocking situations
crying out for action, concerned states may not rule out other means tomeet the gravity and urgency of that situation – and that the statureand credibility of the United Nations may suffer thereby.
The remaining operational considerations are mainly reminders of key
lessons learned from recent problematic interventions, including: the need for aclear objective and resources, incrementalism in deploying force, rememberingthat the objective is protection of the population and not defeat of a state (i.e.
regime change), and maximum possible coordination with humanitarianorganizations.
These criteria identified by the ICISS report, drawing on long-standing just
war traditions and international law, represent a very concise and usefulreminder of crucial considerations before the use of force could be consideredlegitimate.
Still, problems remain with the R2P doctrine as proposed by ICISS. For
example, the legal foundations of the new doctrine are said to include Security
Council authorization to keep the peace; but this new humanitarian intervention
doctrine points to supposedly “developing” state practice as a way to potentiallycircumvent Security Council approval in situations where the Security Council
is unable or unwilling to act. The extent and legality of that state practiceremained ill defined, and the idea of a regional organization’s acting against the

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express decision of the Security Council is especially problematic in both law
and policy. To take another example: “prevention” options are distinguishedfrom intervention, and are highlighted as the “single most important dimensionof the responsibility to protect.” Yet while they are supposed to be prioritizedand “exhausted” before intervention is even “contemplated,” there are obvious
risks that these prevention options will not be given the weight in practice thatthey should be given in theory, and the ICISS report identifies few means inpractice to change this persistent reality.
The Secretary General’s High-Level Panel on Threats, Challenges, andChangeA version of the R2P was also endorsed by a High-Level Panel of eminent
persons constituted by Secretary-General Kofi Annan early last decade. The
High-Level Panel’s report recommended in slightly different language criteriavery similar to that identified by the ICISS before any Security Council
authorization to use military force would be legitimate, including “seriousness of
threat, proper purpose, last resort, proportional means and balance of56

consequences.” But notably, the panel retreated to the traditional idea that the57

Security Council must authorize such actions. This occurred despite the factthat the High-Level Panel included Gareth Evans (Co-Chair of the ICISS,
closely associated with the more expansive version of the R2P) and several
ICISS members.
The UN General Assembly’s 2005 Endorsement of the Responsibility toProtect
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The UN General Assembly’s 2005 endorsement of a version of the R2P

occurred after detailed negotiations at one of the largest gatherings ofgovernments and heads of state in history. The endorsement was contained aspart of the World Summit Outcome, contained in a much broader,
comprehensive resolution addressing many other subjects. The endorsement
remains at a fairly general level and represents a much more limited statement
than that of the ICISS, which is probably why it makes no attempt to preserve
the careful legitimacy criteria present in the prior ICISS and High Level Panel

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elaborations:138. Each individual State has the responsibility to protect its
populations from genocide, war crimes, ethnic cleansing and crimes
against humanity. This responsibility entails the prevention of suchcrimes, including their incitement, through appropriate and necessarymeans. We accept that responsibility and will act in accordance with it.
The international community should, as appropriate, encourage and help
States to exercise this responsibility and support the United Nations inestablishing an early warning capability.
139. The international community, through the United Nations, also has
the responsibility to use appropriate diplomatic, humanitarian and otherpeaceful means, in accordance with Chapters VI and VIII of the Charter,
to help to protect populations from genocide, war crimes, ethnic cleansing
and crimes against humanity. In this context, we are prepared to takecollective action, in a timely and decisive manner, through the Security
Council, in accordance with the Charter, including Chapter VII, on acase-by-case basis and in cooperation with relevant regionalorganizations as appropriate, should peaceful means be inadequate andnational authorities are manifestly failing to protect their populations
from genocide, war crimes, ethnic cleansing and crimes against
humanity. We stress the need for the General Assembly to continue
consideration of the responsibility to protect populations from genocide,
war crimes, ethnic cleansing and crimes against humanity and its
implications, bearing in mind the principles of the Charter andinternational law. We also intend to commit ourselves, as necessary andappropriate, to helping States build capacity to protect their populations
from genocide, war crimes, ethnic cleansing and crimes against humanity
and to assisting those which are under stress before crises and conflicts
break out.
Several things are noteworthy about this official discussion by the General
Assembly of a very different and less-developed “R2P.” First, unlike the ICISSand High Level Panel versions, the emphasis at the outset remains on the

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responsibility of individual sovereign states to protect their populations fromatrocities. Second, the emphasis then turns to prevention (as opposed to militaryintervention) and the desirability of the international community helping states
to exercise that obligation “as appropriate.” Third, this version encourages states
to support the United Nations in establishing an early warning capability.
Fourth, the General Assembly resolution then emphasizes the obligation to use
peaceful, diplomatic, humanitarian, and other non-violent, non-coercive means
to protect populations from atrocities (including those under Chapters VI and
VIII of the UN Charter, as opposed to the more coercive and violent measuresavailable under Chapter VII). Fifth, then and only then, “should peaceful means
be inadequate and national authorities [be] manifestly failing to protect their
populations” from the four categories of atrocities, do the nations of the General
Assembly say that they are prepared to take collective Security Council action
possibly including military action under Chapter VII. Although the“international community” is said to have the obligation referenced in paragraph
139, note that this is “through the United Nations” and (in the next sentence)59“through the Security Council, in accordance with the Charter.” Sixth, the R2P
doctrine and associated implementation mechanisms are confirmed as still
somewhat inchoate and developing, with the General Assembly enjoined to“continue consideration of the responsibility to protect populations fromgenocide, war crimes, ethnic cleansing and crimes against humanity and its
implications, bearing in mind the principles of the Charter and internationallaw” (which would presumably include not only human rights but sovereignty).
Finally, the General Assembly resolution returns to its original emphasis on the
responsibility of individual states to prevent atrocities, referring to the need tobuild capacity for proactive prevention and protection “before crises and conflicts
break out.”
Unlike the ICISS report, and notwithstanding the widespread discussions
and assumptions to the contrary, the General Assembly’s version is thus more arestatement of existing law than any radical new doctrine. The biggest obstacles
to more frequent use of existing legal authorities to stop atrocities stem morefrom elusive political will and perceived clashes with the national interests of
the Permanent Five members of the Security Council than any other factors.
Notwithstanding these practical difficulties, strong policy considerations

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reinforce the longstanding legal approach, including what would be a risky
precedent allowing humanitarian intervention outside of the context of Security
Council approval. If it is allowed for one state or group of states, it can easily beallowed for another state or another group, which could risk quickly devolving
into a war of all against all.
In reaching its conclusion, the General Assembly had before it not only the
ICISS report, but also the report of the High-Level Panel and the SecretaryGeneral’s report from earlier that year, In Larger Freedom. While In Larger
Freedom rightly stated that “no legal principle -- not even sovereignty -- should
ever be allowed to shield genocide, crimes against humanity and mass humansuffering,” it too mentions only the Security Council when discussing theultimate decision to use military force in connection with such humanitarian
60

intervention/R2P.

Those who prefer to see more than that might argue that the General
Assembly resolution reflects or even incorporates by reference the content of theprior, unofficial ICISS effort. But that would be patently untrue and misleading.
The most one can argue about the ICISS report is that it forms a useful part of
the relevant background context that was available to the General Assembly at
the time, was considered along with the other documents but not fully embraced,
and remains available to inform discussions regarding existing law including61

the “soft law” resulting from the official General Assembly resolution. But thedifferent and more conservative emphasis of the subsequent official General
Assembly resolution, having taken the prior, unofficial ICISS report into accountin deliberations and negotiations, clearly takes precedence as a matter of legal
authority. Indeed, that there was any General Assembly reference at all using
any language regarding a responsibility to protect is actually quite remarkablein light of the massive questions ongoing at the time regarding the relatively
unilateral US intervention in Iraq.
So we are left with a reaffirmation of individual state sovereignty and a“weak” version of R2P, with theoretical recourse to military action authorized by
the UN Security Council (perhaps cooperating with regional organizations) inthe event that peaceful means such as mediation or preliminary coercive means

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such as threatened international prosecution are inadequate. There is noreference to or toleration of any unilateral action by any state or regionalorganization or even the General Assembly itself, as envisioned by the ICISS
report. The reason that the explicit international legal constraints and criteriapreviously emphasized (in the ICISS report, the High-Level Panel’s report, andthe Secretary General’s In Larger Freedom report) were dropped in the General
Assembly resolution may be because they were deemed unnecessary. After all,the General Assembly World Summit Outcome resolution basically restatedexisting law and policy which include such prudential considerations at least
implicitly and in theory; the prudential “just war” criteria are even included
explicitly to some extent, for example, in the references to the various provisionsof the UN Charter and the need to first try peaceful means before resorting toforce.
Reaffirming the usual reliance on the Security Council similarly should also
have the benefit (via checks and balances) of validating, at least to some extent,
the traditional “right intent” element, and mandating caution in the use of force(with the Security Council continuing to be a safeguard against overuse of suchan intervention doctrine), while leaving the door open to military intervention in
extreme situations. The attention to R2P does highlight the need for action
regarding atrocities. But it also leaves intact the dilemmas which have driven
discontent regarding current law, including the perceived and actual difficulties
of relying so heavily on the Security Council with all its baggage of being subject
to political and other perceived interests of members including the Permanent
Five.
Operationalizing the Responsibility to Protect
In January 2009, the UN Secretary-General reported on ways to62“operationalize” the R2P. An explicit aim of the report was to “discourage
States or groups of States from misusing the responsibility to protect for
inappropriate purposes” by more fully developing “the United Nations strategy,
standards, processes, tools and practices for the responsibility to protect.”
The Secretary-General sets forth three pillars to guide action: (i) theThe International Law and Policy regarding the Use of Force, Humanitarian Intervention, and the Responsibility to Protect

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protection responsibilities of the state (involving the reminder that sovereignty
entails duties and not just privileges), (ii) international assistance and capacity
building, including greater development assistance to poor countries (which
63

would reduce but not eliminate the risks of violent competition for resources),and (iii) timely and decisive response from among the many options available
including but not limited to military force.
Notably, the Secretary-General takes the opportunity to reiterate that “[i]naccordance with the Charter, measures under Chapter VII must be authorized
by the Security Council” (although he also recognizes, in a more accurate andconstrained way than the ICISS report, that if the Security Council is unable to64act, the General Assembly may make legally non-binding recommendations e.g.
65

under the Uniting for Peace resolution ).
Security Council Action
By paragraph 4 in its resolution 1674 in 2006 (on the protection of civilians
66

in armed conflict), which it has recalled in subsequent resolutions such as
67

resolution 1706 in 2006 on Darfur, the UN Security Council reaffirmed themore general, limited, and traditional version of R2P contained in the two
68

paragraphs of the 2005 General Assembly resolution discussed above. The
Security Council’s recent authorization of military force to protect civilians in
Libya is further affirmation of that version of the doctrine. Since the Security
Council is the highest legal authority in the global order, at least in terms of69

maintaining international peace and security, this definitively settles the70question at least for now and confirms that the more expansive version of R2P
71

advocated by the ICISS report has not yet been accepted into law. As the
Secretary-General has noted, “the responsibility to protect does not alter, indeed
it reinforces, the legal obligations of Member States to refrain from the use offorce except in conformity with the Charter.”72

Recent Cases, Especially Libya
The conventional wisdom regarding Kosovo – that the 1999 NATOintervention was, in the words of the Independent International Commission on

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Kosovo, “illegal but legitimate” – has come under attack from a variety ofquarters, including those who question not only the operation’s legality but also
its legitimacy and effectiveness in light of atrocities on the Kosovan side (theKosovo Liberation Army) as well as the Serbian side, and supposed new
evidence including from the trial at the International Criminal Tribunal for theFormer Yugoslavia of former Serbian President Slobodan Milošević, whichindicated that the atrocities did not diminish but escalated after the NATO73

bombing started (although this might have been an escalation of pre-existing
ethnic cleansing plans). In the case of Kosovo, the centrifugal forces unleashedby NATO’s intervention ultimately resulted in Kosovo’s declaration of
independence; but military intervention can also reinforce state authority, e.g.
by being deployed on behalf of a state against armed groups which commit
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atrocities.

In general, consent-based prevention, protection, peacekeeping, anddisarmament by the UN, regional, or subregional organizations has a better
track record than more coercive military intervention, which the Secretary
General has acknowledged has occurred “less frequently and with more mixed
75

results.” But consent is not required for an operation to be legal under Chapter
VII Security Council authority.
The UN Security Council authorized humanitarian force on an exceptional
basis in Haiti both in 1994 and again in 2004 (without express reference to theR2P concept but including some of its substantive concerns) in order to addressa perceived threat to peace and security and protect democracy and human76

rights.

As noted above, a limited version of R2P was referenced in connection with
Security Council resolutions regarding Darfur, Sudan beginning in 2004 and77

especially in 2006. There have been no meaningful R2P Security Council
actions regarding Somalia or Sri Lanka despite the serious human rights
violations, atrocities, internally displaced people and refugees associated withthose conflicts.
China and Russia vetoed a draft resolution in 2007 on Burma/Myanmar, on

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the ground that the military attacks against minorities there were the internalaffairs of a sovereign state as opposed to a situation that threatenedinternational or regional security or a breach of the peace. The perceived shortterm national security interests of two Permanent Five Security Council
members clearly took precedence in this instance.
There were also calls from France and other quarters to invoke R2P in
dealing with natural disasters such as Cyclone Nargis in Burma/Myanmar, but78

these too have been strongly resisted by powerful nations such as China andhave not gained much traction.
As noted previously, Russia’s attempt in 2008 to invoke R2P regarding its
invasion of South Ossetia, Georgia was quite evidently pretextual; such
unilateral action by a state to putatively protect its citizens would not be legal
under the proper R2P doctrine, which again requires Security Council
authorization.
While the R2P was invoked by some (e.g. UN Special Rapporteur on the
Occupied Palestinian Territories, Richard Falk) in connection with the 2008-9
79

incursion by Israel into Gaza, the Security Council took no action.
The Security Council has also referenced R2P both directly and more
80

indirectly in its resolutions on Côte d’Ivoire, and even more indirectly in its
81

resolution authorizing the Hybrid AU/UN (UNAMID) force for Darfur in 2007.

(A resolution merely referring to the obligation of the state to protect civilians,
then authorizing a force, is a more indirect reference than one that also speaks
explicitly of the responsibility to protect, and/or references the obligation of theinternational community to step in should the state fail in its responsibility.)
Interestingly, the language of the Security Council resolution 1973
authorizing military force in Libya emphasizes the responsibility of “the Libyan
authorities” to protect the population. Although R2P proponents properly point
to the recent Libyan case as an instance of R2P implementation,

82

it is

noteworthy that the Libyan case involved Security Council authorization andwasn’t the unilateral action previously advocated part of the core R2P concept

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e.g. in the ICISS report. The fact that the Security Council’s more recent
resolutions (such as that regarding force in Libya) no longer say “exceptional” asthey did in the 90’s (e.g. re Haiti) reflects the fact that the legal authority of the
Security Council to act in such situations is now more accepted.
More importantly, although the Security Council is undoubtedly the “rightauthority” under global law to take actions against such threats or breaches tothe peace, increasing questions arose as the Libyan operation proceeded
regarding whether the Security Council gave adequate consideration to the full
panoply of legitimacy factors and precautionary principles counseled by just war
theory, the ICISS report, the High-Level Panel reports, and the key UN
Secretary General reports on the subject.
On the question of whether there was “just cause,” Col. Gaddafi andmembers of his family indeed made very disturbing threats of a “bloodbath” thatwould show “no mercy” to the rebels in the city of Benghazi. He even referred to
the rebels for example as “cockroaches” – recalling the dehumanizing rhetoricthat preceded e.g. the Holocaust, the Cambodian, and Rwandan genocides.
These are indeed very serious early warning indicators for possible extreme
violence (even though such extreme rhetoric was the Libyan regime’s modus
operandi for decades), and so should be taken seriously. But whether theremarks themselves are sufficient to amount to “just cause” for a militaryintervention is another matter entirely.
In the case of Libya, as in so many other cases, the assertion of “just cause”
amounts in practice to an assertion that one side in a civil war – a small anddisorganized band of weak rebels, in this case – is the side that truly carries thebanner of justice and law. That has become increasingly problematic as more
has been learned about the mixed nature of the rebels, some of whom wereperhaps associated with al Qaeda, and others of whom seemed to be acting moreout of self-interest than anything else. But the NATO forces rapidly evolved
from the neutral posture associated with impartially defending civilians to being
very clearly associated with the rebel side in the conflict – a factor which caused
significant buyer’s remorse among some Security Council members who had
supported the action (especially Russia and China). Even if the rebels were

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uniformly attractive and their cause was just, the other criteria may call into
question whether military intervention makes sense.
For decades, Col. Gaddafi ruled his people in a despotic fashion and been
despised for it -- especially in the West. But after years of nurturing dependent
subjects, dispensing patronage, and cultivating an image as a pan-Arabist, he
had supporters both at home and abroad, and even nations in the West havevacillated at various times between condemning and tolerating (and to someextent even embracing) him. Moreover, the assertions that the risks to lives in
Bahrain, Yemen, and Syria were “smaller scale”

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hardly appear true today,

when it is clear that Gaddafi refrained from large scale massacres but theregimes in those other nations have murdered more of their own peacefuldissidents.
Ultimately, the claimed “just cause” in Libya must forever remain
somewhat speculative, as it was based mainly on Gaddafi’s rhetoric and threats
regarding what he might do in Benghazi (again, in contrast to situations in
Syria, Saudi Arabia, Yemen, and Bahrain – and earlier in Egypt and Tunisia –where the rulers were actively engaged in murdering their people). In such asituation, the nations who took the lead on the forceful intervention in Libya
cannot avoid being accused by some of being inconsistent hypocrites, with thebanner they carry appearing to be a double standard. In the case of Syria, it istrue that Russia and China have been obstacles to military intervention
authorized by the Security Council – but it is often overlooked that the US andother Western powers have their own complex reasons for not invoking R2P
there. Reluctance to intervene with respect to the other Arab states – nominal
allies of the US and the West in the so-called US “Global War Against
Terror(ism/ists)” – is even easier to explain in terms of realpolitik interests.
They are suppliers of energy (Saudi Arabia) or other perceived strategic goods(Bahrain as base for the US Fifth Fleet, the other states as supposed sources ofregional stability). A broader and longer-term conception of such interests,
however, might note that the longer-than-expected conflict in Libya, like thecurrently ongoing conflict in Syria, has led to significant increases in refugee
flows, opportunities for greater infiltration by al Qaeda (e.g. al Qaeda in theIslamic Maghreb increasing its presence in Libya), and instability that threatens

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regional security, oil supplies, inflation, and represents a negative factor in the84

global economy.

Regarding whether there was “right intent,” protecting Libyan civilians wasundoubtedly one possible motive, but other likely motives might have included
avoiding mass refugee flows to Europe and ensuring more reliable, long-term
access to Libya’s significant oil reserves. After all, relations with Gaddafi had
been improving and, as is so often the case, little or no action was taken toprotect civilians from torture, abuse, and other rights violations when therelationship with the ruler was better (and profitable for the interests
represented by those countries which have now taken military action against
his regime). As always, it is difficult to determine which motives predominate,
but R2P advocate Gareth Evans admitted that “had oil or regime change been
the primary motivation, the Arab League and the Security Council would never
have endorsed military intervention.”

85

Whether the (potential) victims themselves called for military intervention(as some did) would be a positive factor favoring such intervention, as noted in
the ICISS report, but after the military action began it became clear that
Gaddafi had more support (not all of it contrived) than early simplistic analyses
suggested. Much was also made of the Arab League’s request for a no-fly zone
on March 13, 2011 (which would be evidence of the “regional opinion” in the86

terms of the ICISS report), but members of the Arab League, Russia, China,

and various commentators noted and objected to the rapid escalation of theintervention (arguably beyond the limited civilian protection directive of the
Security Council resolution). The more aggressive targeting, in their eyes,
seemed aimed at the more dubious and legally problematic regime change that87

the US, French, and UK leaders explicitly advocated than the limited civilian
protection authorized by the UN Security Council. This mission creep fromcivilian protection into regime change not only went beyond the Security Council
88

authorization, but went beyond even the more expansive version of the R2P
conceived in the ICISS report.
Moving on to whether the military action was truly a “last resort,” the R2P
was referenced in the initial Security Council resolution 1970 passed on

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February 26, 2011, imposing sanctions and an arms embargo, and referring the89

case to the International Criminal Court. But these efforts were not reallygiven any significant time to work before the second Security Council resolution
1973 was adopted a matter of weeks later, on March 17, 2011, authorizing “allnecessary measures to enforce compliance” with the no-fly zone imposed in90

Libya in order to protect civilians. As has happened in other cases, it is hard to
say that every non-military option was exhausted prior to the use of force;indeed, it was reportedly only after the launch of force that the search began inearnest for negotiated exit options for Col. Gaddafi.
Were the measures “proportionate” in terms of the military action, andcalculated to produce more good than harm, without excessive means
endangering civilians? Even if the initial “no fly zone” was, can the same be said
about the various escalating measures evident as the civil war progressed? The
escalation included assistance of various sorts to the rebels, various on-theground advisors (despite the language in resolution 1973 “excluding a foreign
occupation force of any form on any part of Libyan territory”), unmanned aerial
drones, attacks on civilian infrastructure, bombing (which inevitably took
91

innocent civilian lives), and even reported targeted killing of members of
Gaddafi’s family and attempts to target Col. Gaddafi himself for death. The
allied governments moved toward officially recognizing the rebels (what
Canada’s Globe and Mail newspaper called the “fractious and murky umbrellaorganization for the opposition”), clearly taking sides in the civil war and92

unabashedly seeking regime change. It strains credulity to argue that theescalation and increasingly clear regime change mission remained within thelegal authority granted. On the contrary, those changes entailed corresponding
costs to the credibility of the effort (and not only this attempt at enforcing R2P,
93

but perhaps future potential R2P efforts as well). This is quite evident in thecase of Syria, where Russia and China have blocked a Security Council
94

mandate for more aggressive intervention in part on grounds (also of concern
to the Arab League) that they were misled by the overreach in the Libyan case.
What about “prospects for success” ? It is difficult under the best of
circumstances to predict the future; it is especially difficult in the context of war,
given the truism that “no battle plan ever survives contact with the enemy.” In66

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thinking that they could predict the future, the US and NATO might be said tohave been afflicted by the same sort of hubris chronicled by historians such as
Barbara Tuchman (in The March of Folly) and reflected in comments such asthat of then Secretary of State Madeleine Albright, who famously stated “If wehave to use force, it is because we are America. We are the indispensable nation.
We stand tall, and we see further than other countries into the future.”
95

President Obama has later echoed this “indispensable nation” sentiment. To
this one might perhaps add President Obama’s promise that the heavy US rolein the Libyan operation would take “days, not weeks.”

96

The significant US

commitment actually took many months in the combat phase of the battle, andcontinues in other ways to date. Given the tens of thousands of deaths whichhave occurred, the persistent violence, continuing instability, and the ongoing“string of assassinations” in Libya (including the September 11, 2012 killing of97

US Ambassador Christopher Stevens), the outcome still remains uncertain inmany respects.
In any event, the “prospects for success” criterion for humanitarian
intervention would remain, if applied honestly, perhaps the highest hurdle tolegitimacy of many military interventions (especially given the long string of
hubristic failures history presents). Despite the overthrow and death of Col.
Gaddafi, both during and after the combat phase of the operation civilians died98

in huge numbers. One suspects that similar concerns about overall, long-term
consequences and prospects for success in the more recent case of Syria havebeen a factor in the international community’s unwillingness thus far tointervene in that situation of elevated and more complex strategic interests.
Among other challenges to intervention, the presence of al Qaeda among therebel groups resisting the Assad regime leads to an understandable fear thatassistance now could result in blowback harm later (as happened in the case of99

Afghanistan during the Reagan era).

No ground is gained, therefore, in the reformulation of this criterion as a“balance of consequences” test (which asks whether the affected population will
be better or worse off, as required by the High-Level Panel report discussed
above): there are now a number of long-term studies which point to the100

increased risk of civil war resulting from foreign imposed regime change, andThe International Law and Policy regarding the Use of Force, Humanitarian Intervention, and the Responsibility to Protect

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the longer such conflicts persist, the more civilian lives are at risk. According to
the International Crisis Group, “Although the declared rationale of thisintervention was to protect civilians, civilians are figuring in large numbers as
victims of the war, both as casualties and refugees.”
102

contrary notwithstanding,101

Suggestions to thethe viciousness of the violence in humanitarian

interventions often escalates over time. Such realities bring us back to thequestion of whether the cause is “just” in the broadest sense of the term: if theforeseeable likely result of arming a band of weak, disorganized, heterogeneous
rebels is to extend an already lengthy civil war in which many civilians aredying, how is that consistent with a humanitarian purpose of protecting
civilians?
This aspect of course stands out when one recalls the recent and ongoingcase of Iraq. There, after the failures to find weapons of mass destruction and to
persuasively link secular Baathist Saddam Hussein to Al Qaeda, the Bushadministration tried to construct a humanitarian rationale for intervention.
This was never very compelling, since Saddam’s massacres of Kurds occurredyears before when he was a US ally and depended in part on supplies andtargeting information from NATO allies. But the civilian protection rationale
takes on truly ludicrous dimensions when one looks at the bloodbath of conflict,insurgency, suicide bombings, and rape unleashed by the Iraq invasion that has
taken (depending on which estimates you believe) somewhere between
approximately 110,000103

and over 1,000,000

104

lives, resulted in more than

2,000,000 refugees who have left Iraq, and another 2,000,000 internallydisplaced Iraqis, and cost the US over three trillion dollars (according to Nobel
105

Laureate Joseph Stiglitz and his coauthor Linda Bilmes).

Iraq thus takes its

place in the pantheon of imperialistic invasions cloaked in the garb of
humanitarian intervention at tremendous cost to the invading nation as well as
the civilians the invasion was supposed to protect.
Col. Gaddafi was long the object of fairly unique opprobrium, at least in theWest. When combined with the constellation of mixed motives (humanitarianand realpolitik) presenting themselves in February 2011, including the desire to
seize the opportunity to shore up the R2P doctrine and make up for thenotorious and acknowledged failures of the United Nations and the West, for68

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example in connection with Srebrenica and Rwanda, one understands how the
Libyan operation came about.
Instead of reinforcing the R2P doctrine, however, the Libyan operation – atleast at this point – tends to counsel caution in humanitarian intervention evenwhen the target seems as attractive as a Gaddafi.
Like all wars, humanitarian invasions are a risky and uncertain venture
even in the best of circumstances -- those very rare instances where “rightintention” predominates and the other legitimacy criteria are met. So they areeven more suspect in the usual cases where the legitimacy criteria are strainedor seem to be afterthoughts or pretexts.

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This is especially the case whenhuman fallibility meets human cupidity, as clearly happened on so many levels
107

in the Iraq (which strategically benefited Iran, contrary to US goals).

But ithappens in all wars, as vested interests including from the military-industrial
108

complexexert influence toward the continuation of the war.

Conclusion and Recommendations
The metaphors and frames we use determine the methods we adopt and our109

notions of what can be tolerated:“war” and “force” lead to collateral damage

being tolerated, and military force traditionally has been more threatening thanprotective of civilians historically – which counsels the need to take much more
seriously, invest in, and prioritize to a much greater extent prevention andcivilian rather than military methods as default modes of protecting civilians.
There is little doubt about the good faith and good intentions of many of the110

interventionists.

But as is said, war is hell -- and the road to hell is paved withgood intentions. International law must constrain the frequent temptation ofnations to resort to unilateral military force, while simultaneously leaving room
for collective responses to mass atrocities. This is why “the consensus of opinion
among governments and jurists favors requiring Security Council approval forhumanitarian intervention.”

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Like some other observers, both from the nongovernmental realm as well as

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the military, the longer I have observed efforts at humanitarian intervention,
the more cautious I have been in my assessment of whether a change in thebasic international law is necessary or advisable. As much as we sorely needmore effective means of intervening to prevent atrocities, we just as surely needbetter means to more accurately gauge as well as deeply and comprehensively
understand the true costs of military intervention as well as the potential
benefits of greater non-military prevention and protective instruments andinterventions of various kinds. The long-standing and somewhat irrational but
deeply engrained human impulse to quickly identify the so-called “good guys
and bad guys” and then resort to war as a means of conflict resolution (even in
the absence of reliable factual information) must be counterbalanced by morereliable mechanisms of gathering the facts, measuring and choosing incalibrated fashion among the full range of potential responses, creatively
addressing the problems, and avoiding the unintended consequences that
inevitably arise along with escalation, misinformation, miscommunication, and112

all of the other characteristics of the Fog of War.

Reinforcing peaceful solutions

as opposed to the sadly prevailing inclinations toward violent response also hasa systemic value, as it forms a critical means of discouraging conflicts fromarising in the first place.
Again, none of this is to contest the dire need for more effective solutions toprotect human rights either in general, or in situations of mass atrocity; but it is
to remind us of the serious complexities and difficulties involved and the very
real risks of counterproductive consequences that may be worse for humanrights whenever resort is had to war. Although an important place exists ininternational law for a version of the R2P doctrine, it is crucial that it beproperly founded by clear threshold criteria in order to assure legality andlegitimacy and avoid pretextual or ill-considered actions.
Some of the tentative conclusions and recommendations that thus come tomind are:
1. All regions of the world should understand that current internationallaw pertaining to military aspects of humanitarian intervention and theR2P remains centered on the UN Charter’s provisions pertaining to the70

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use of force and, in particular, action within the province of the UN
Security Council. To that end:a. Conferences such as the one we have held on humanitarian
intervention should be replicated in other regions and the insights
derived therefrom should be broadly disseminated and madeavailable to public and private sector educational institutions,conflict resolution bodies, women’s groups, businesses, peacegroups, international relations and global affairs groups, legal
groups, UN associations, and other fora, courses, and curricula, tohelp global civil society continue to play an even more vital role inresearch, education, training, monitoring, early warning, andadvocacy for peace;b. International law publicists, political science, international
relations, jurists and scholars should make the current governing
law more known;c. There should be an effort to reach out to and engage relevant
media so that they play a more constructive role than they have in113

past and present conflicts;

d. Relevant UN officials and agencies, such as the Secretary General,
the High Commissioner for Human Rights, other officials andtheir staff, should take the opportunity to clarify the law andpolicy where possible, including especially to members of thegeneral public and opinion leaders (e.g. by means of international
media, social media, blogging, and other avenues), since thepolitical will to sustainably support legal and needed interventions
will depend on such public support.
2. The error that humanitarian intervention and the R2P are only about
military intervention should be strongly highlighted and refuted.
International law publicists, other scholars, and UN officials andagencies should take care to emphasize the full range of actions(including non-military coercive and non-coercive measures, ranging
from sanctions,114

arms embargoes, and international prosecution, todiplomacy, mediation, public-private partnerships with business andcivil society, and technical assistance) available to the international
community to assist. Greater development assistance would also have an

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undoubted positive effect, although it must carefully be given in waysthat don’t exacerbate conflict (a topic for which greater field research
115

remains needed).

3. More bottom-up engagement of populations within nations andinternational networks between and among nations and others,
especially on the practical conflict-preventive value of human rights,
frameworks for diversity, and concepts, institutions, and mechanisms toproactively promote peace, education, tolerance, and mutual
understanding as opposed to ethnic, religious, or other conflict or tension,
can and should receive much more official attention, resources, andaction – both directly and via collaboration with other stakeholders – andcan be facilitated by new technologies and communication andnetworking platforms.
4. The limits as well as the powers implied in humanitarian intervention
and under the R2P doctrine should also be more broadly understood,
especially that:a. R2P is not a recipe for unilateral intervention; it would not“legalize” interventions such as that which occurred in Kosovo,
although it could help clear the path for legal collective security
action through the Security Council.
b. R2P is currently limited to the four atrocity categories of genocide,crimes against humanity, war crimes, and ethnic cleansing – adefault focus which amounts to a further de facto “precautionary
principle” by establishing what amounts to high threshold ofqualitative and quantitative seriousness before an equally serious
resort to force.
c. Extending R2P to other man-made or natural disasters such as
HIV/AIDS, climate change, tsunamis, or earthquakes (as somehave proposed) would, in the words of the Secretary-General,“undermine the 2005 consensus and stretch the concept beyond
recognition or operational utility.”

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d. R2P is properly subject to crucial legitimacy criteria andprecautionary principles discussed in detail above (and referenced
again in summary fashion immediately below).
5. The criteria for legitimacy and the precautionary principles deriving

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from longstanding “just war” theory and international law should beeven more clearly understood, firmly enshrined in UN and Security
117

Council law, and more carefully implemented in practice.

Again, theseinclude such considerations as:a. “just cause” including large-scale actual or threatened loss of life
or ethnic cleansing;b. “right authority” – i.e. the Security Council, in the case ofhumanitarian intervention;c. “right intent” -- a primary purpose of the intervention to preventor halt suffering;d. “last resort”: military force only as a last resort;e. “proportionality”: overall good exceeding harm, and means
proportionate to and limited by the ends; andf. “reasonable prospects for success” or the related test of a “balanceof consequences” (which asks whether, on the facts as known
including the challenges apparent, civilian lives are likely toultimately be better or worse off from the intervention).
6. The UN and the international community should continue to enhance
the capabilities and effectiveness of early warning and assessment
systems to identify and allow reaction to atrocities or potential atrocities.
Some of the “liberation technologies”

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deployed in connection with theviolence accompanying the disputed elections in Kenya and Côte d’Ivoire
as well for example in the “Arab Spring” give indications of some of thepeople-centered possibilities that could be taken to broader scale, ranging
from solutions that shine the light of transparency on what is occurringto those that inform the populace of information vital to maintaining
their security.

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Notes
1 This paper is based on the author’s presentation at the Kyoto Conference on Humanitarian
Intervention organized by the editors.
2 A “form of coercive action, undertaken by one or more states, involving the use of armed forces inanother state without the consent of its authorities and with the purpose of stopping andpreventing widespread suffering or death among its inhabitants” (Adam Roberts).
3 Coercive measures short of military intervention are broadly acknowledged to include, e.g.,international prosecution and sanctions.
4 Examples given by the Global Centre for the Responsibility to Protect include “strengthening
state capacity through economic assistance, rule-of-law reform, the building of politicalinstitutions, and the like; or, when violence has begun or seems imminent, through direct acts ofmediation.” See The Responsibility to Protect: A Primer, at 1 (available at http://globalr2p.org/pdf/
primer.pdf). The UN Secretary General has highlighted possibilities for encouraging andbuilding capacity for states to comply with their Responsibility to Protect including “dialogue,
education and training,” and “confidential or public suasion, education, training and/or
assistance” by UN Member states, development agencies, the Bretton Woods institutions,regional and subregional mechanisms, UN officials and agencies such as the HighCommissioners for Human Rights and for Refugees, the Emergency Relief Coordinator, theSpecial Adviser on the Prevention of Genocide, and other advisors, officials, representatives, andenvoys. Report of the Secretary General, Implementing the Responsibility to Protect, A/63/677(Jan. 12, 2009), at paras. 30, 33, and 37.
5 E.g. Catherine Powell, “Libya: A Multilateral Constitutional Moment?,” 106 A.J.I.L. 298, 301 (Apr.
2012).
6 Helene Cooper and Steven Lee Myers, “Shift by Clinton Helped Persuade President to Take aHarder Line,” NewYork Times (Mar. 19, 2011).
7 Dino Kritsiotis, “Reappraising Policy Objections to Humanitarian Intervention,” 19 Mich. J. Int’l
L. 1005, 1016 n.32 (1998) (citations omitted).
8 Gary J. Bass, Freedoms Battle: the Origins of Humanitarian Intervention (New York: Knopf,
2008; Stephen P. Marks and Nicholas Cooper, “Human Rights: Law, Policy, and Implementation:
The Responsibility to Protect: Watershed or Old Wine in a New Bottle?,” 2 Jindal Global L. Rev.
86, 93 (2010), citing Gelijn Molier, “Humanitarian Intervention and The Responsibility To
Protect After 9/11,” 53 Netherlands Int’l L. Rev. 1, 47 (2006).
9 Distinguished scholars frequently limit the definition of humanitarian intervention to the field ofactions not authorized by the UN Security Council, arguing that the existence of such
authorization amounts merely to an exercise of the Security Council’s enforcement powers as
opposed to humanitarian intervention as traditionally understood. See, e.g., Dino Kritsiotis,“Reappraising Policy Objections to Humanitarian Intervention,” 19 Mich. J. Int’l L. 1005, 1014
n.26 (1998) (citing A.C. Arend & R.J. Beck, International Law and the Use of Force: Beyond the
U.N. Charter Paradigm 113 (1993)). For purposes of the present discussion, however, this article
adopts the broader conference definition of the phrase, which has room to embrace UNauthorized interventions.
10 For an inventory and analysis of key objections to humanitarian intervention (made before thevarious recent framings of the issues under the rubric of the “Responsibility to Protect”), seeDino Kritsiotis, “Reappraising Policy Objections to Humanitarian Intervention,” 19 Mich. J. Int’l
L. 1005 (1998).
11 E.g. Thucydides, History of the Peloponnesian War 53-62 (Rex Warner trans., rev. ed. 1972).

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12 Stephen Neff, War and the Law of Nations: A General History 39-45 (2005); see also Jerome
Alan Cohen, China and Intervention: Theory and Practice, 121 U. Pa. L. Rev. 471, 474 (1973),
citing Te-hsu Ch’eng, International Law in Early China (1122-249 BC), 11 Chinese Soc. & Pol.
Sci. Rev. 44, 44-46 (1927) who noted that the general rule of non-intervention among preimperial Chinese feudal states was nevertheless subject to frequent invocation of an “exception[that] permitted intervention against a ruler who oppressed his own people.”
13 E.g. St. Augustine of Hippo, Against Faustus the Manichaean XXII. 73-79, in Augustine: Political
Writings 222 (Michael W. Tkacz & Douglas Kries, trans., Ernest L. Fortin & Douglas Kries, eds.,
1994)(on “right authority”); St. Thomas Aquinas, “The Just War,” in The Summa Theologica,
Great Books of the Western World vol. 20 (Chicago, Illinois: Encyclopedia Britannica, Inc., 1952),
excerpt available at: http://www.catholiceducation.org/articles/politics/pg0029.html.
14 Cf. discussion of criteria in ICISS Report, below (which also reference as criteria that the use offorce should be “last resort,” with “proportional means,” and “reasonable prospects” for success.
15 Following other Renaissance jurists such as Francisco de Vitoria (c. 1492 – c. 1546) and Francisco
Suárez (1548 – 1617).
16 See e.g. Theodor Meron, Common Rights of Mankind in Gentili, Grotius and Suarez, 85 Am. J.
Int’l L. 110 (1991), and Anne Orford, International Authority and the Responsibility to Protect(New York, NY: Cambridge University Press, 2011).
17 Speech by Zimbabwean President Robert Mugabe to 66th UN General Assembly (2011),
available at http://www.newzimbabwe.com/opinion-6117-Full+text+Mugabes+speech+to+66th+U
NGA/opinion.aspx; “Syria Exercising its Responsibility to Protect Citizens,” Speech by Syrian
Foreign Minister Walid al-Moallem to the 66th UN General Assembly (2011), available at: https://syrianleaks.wordpress.com/2011/09/27/syria-exercising-its-responsibility-to-protect-citizens/
18 See Mark Mazower, Governing the World: The History of An Idea (2012), at 8, 167, and 380-81(tracing the idea of intervention through the Concert of Europe to later 19th and 20th century
justifications for the supposedly pure “civilizing mission” intentions of the colonial powers withrespect to the world’s “lower races,” imperial echoes of which he finds in R2P today).
19 Such as e.g. Noam Chomsky, A New Generation Draws the Line: Kosovo, East Timor, and the“Responsibility to Protect” Today (2011 Expanded Edition); see also Noam Chomsky, Statement
by Professor Noam Chomsky to the United Nations General Assembly Thematic Dialogue on the
Responsibility to Protect (July 23, 2009), available at https://www.un.org/ga/president/63/
interactive/protect/noam.pdf
20 Emerich de Vattel, The Law of Nations, bk. II, ch. i, § 7 (Joseph Chitty trans., 1879) (1758).
21 Reportedly suggested by the use of the phrase jus inter gentes (rather than the phrase jus
gentium) by 17th century Oxford jurist Richard Zouche (according to Thomas Erskine Holland in
the Dictionary of National Biography, (London: Smith, Elder & Co. 1885–1900)).
22 Neff, at 161.
23 Carl Von Clausewitz, On War 87 (1832) (Michael Howard & Peter Paret eds., trans., 1976).
24 Ian Brownlie, Principles of Public International Law (6th ed), at 710; this would be consistent
with the idea of war being a customary norm arising from the accoutrements of sovereignty. Fora more qualified view, see e.g. Simon Chesterman, Just War or Just Peace?: Humanitarian
Intervention and International Law (2003), at 43-44 (“More than anything, humanitarian
intervention appears to occupy a lacuna in the primitive international legal regime of the time.”).
25 See, e.g. Antoine Rougier, La Theorie De l’intervention D’humanite, 17 Rev. Gen. Dr. Int’l Publ.
468-526 (1910) (describing criteria for humanitarian intervention in just war terms).
26 UN Charter, art. 2, para. 4.

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27 See UN Charter, arts. 1, 3, and 55.
28 See UN Charter, arts. 39, 42 and 43.
29 R. Cassin, ’La declaration universelle et la mise en oeuvre des droits de l’homme’, in 79 Recueil
des Cours de l’Academie de droit international (1951-II) 237-367, at 290-296; Louis Sohn, The
New International Law: Protection of the Rights of Individuals Rather Than States, 32 AM. U. L.
REV. 1, 17 (1982).
30 Myres S. McDougal, Harold Lasswell, & Lung-Chu Chen, Human Rights and World Public Order
266, 273-74, 325-27 (1980); Hurst Hannum, The Status of The Universal Declaration of Human
Rights in National and International Law, 25 GA. J. INT’L & COMP. L. 287, 334 (Fall
1995-Winter 1996); Cf. Filartiga v. Pena-Irala, 630 F.2d 876, 882 (2d Cir. 1980) (anti-torture
provisions as customary international law).
31 E.g. the Constitutive Act of the African Union (2000) provides, in article 4 (h), for “the right of
the Union [note: as opposed to other Member States] to intervene in a Member State pursuant toa decision of the Assembly in respect to grave circumstances, namely: war crimes, genocide, andcrimes against humanity.” The Convention on the Prevention and Punishment of the Crime of
Genocide similarly imposes a responsibility “to act.” And of course the Rome Statute for theInternational Criminal Court and the various special international criminal tribunals reflect the
obligations to punish these crimes.
32 E.g. Report of the Secretary General, Implementing the Responsibility to Protect, A/63/677 (Jan.
12, 2009), at para. 3.
33 See, e.g., Resolutions 1612 (2005) and 1820 (2008).
34 Report of the Secretary General, Implementing the Responsibility to Protect, A/63/677 (Jan. 12,2009), at para. 11 (a).
35 E.g. Christopher Greenwood, Humanitarian Intervention: The Case of Kosovo, 1999 Finnish Y.B.
Int’l L. 141.
36 U.S. Secretary of State Madeleine Albright, Press Conference with Russian Foreign Minister
Igor Ivanov, Singapore, 26 July 1999 available at http://secretary.state.gov/www/statements/1999/990726b.html; Bruno Simma, “NATO, the UN and the Use of Force: Legal
Aspects”, European Journal of International Law, 10, 22 (1999).
37 See UN Charter Chapter VII and Art. 39 (“Action With Respect to Threats to the Peace, Breachesof the Peace, and Acts of Aggression”); GA Res. 3314 (XXIX) (Dec. 14, 1974) (Definition ofAggression); and cf. outcome of the 2010 Review Conference of the Rome Statute held in
Kampala, Uganda, where consensus was reached on amendments adding the crime of aggression
the Rome Statute for the ICC, but with entry into force depending on states parties activating
the jurisdiction after Jan. 1, 2017: see e.g. http://www.iccnow.org/?mod=aggression. While theKosovo intervention was challenged by Yugoslavia before the International Court of Justice, thecase was dismissed on technical grounds. See Legality of Use of Force Case (Provisional
Measures) (ICJ, 1999).
38 See also Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ
REP. 14, para. 268 (June 27) (rejecting US position that its unilateral conduct was justified bycustomary international law allowing the protection of human rights in Nicaragua).
39 See e.g. Alex J. Bellamy, Responsibility to Protect or Trojan Horse? The Crisis in Darfur andHumanitarian Intervention after Iraq, 19 Ethics & Int’l Aff. 31 (2005); Nigel S. Rodley & BasakCali, Kosovo Revisited: Humanitarian Intervention on the Fault Lines of International Law, 7Hum. Rts. L. Rev. 275 (2007).
40 The most significant and gross violations of international human rights widely recognized to76

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raise issues of humanitarian intervention and R2P – genocide, war crimes, crimes against
humanity, and ethnic cleansing – are often referred to herein as “atrocities.”
41 Mario Bettati & Bernard Kouchner, Le Devoir D’ Ingerence: Peut On Les Laisser Mourir? (1987).
42 E.g. G.A. Res. 43/131 U.N. Doc. G/RES/43/131 (1988).
43 See e.g. Press Conference with NATO Secretary General Javier Solana and SACEUR Gen.
Wesley Clark (Mar. 25, 1999), available at http://www.nato.int/kosovo/press/p990325a.htm.
44 As noted e.g. by Ian Brownlie, Principles of Public International Law 742-43 (7th ed. 2008). Notethat mixed motives, always inevitable, do not necessarily delegitimize an intervention.
45 Independent International Commission on Kosovo, The Kosovo Report: Conflict, International
Response, Lessons Learned (2000).
46 Kofi Annan, “Two Concepts of Sovereignty,” The Economist (Sept. 18, 1999).
47 http://www.iciss.ca/menu-en.asp
48 http://www.iciss.ca/pdf/Commission-Report.pdf
49 Id., at VIII.
50 Id., at VIII (citing Security Council resolutions 1368 and 1373 passed in the immediate aftermathof the 9/11 attacks).
51 See e.g. Gary J. Bass, Freedoms Battle: the Origins of Humanitarian Intervention (New York:
Knopf, 2008) (chapter 1, esp. 5-19); Amos Yoder, World Politics and the Causes of War Since
1914, at 58 (1986). More recent examples include Russia’s attempt to invoke R2P when invading
Georgia in 2008.
52 E.g., Dino Kritsiotis, “Reappraising Policy Objections to Humanitarian Intervention,” 19 Mich. J.
Int’l L. 1005, 1039 (1998).
53 ICISS Report, at XIII. This “Code of Conduct” mechanism would thus attempt to acknowledge therealities of continued P5 resistance when vital interests are involved, but would allow broader
scope for collective action in the most serious atrocity cases when there is agreement for action
on the part of a majority of the Security Council (including the non-P5 members). No such Codehas been enacted yet.
54 G.A. Res. 377 (V), U.N. DOC. A/RES/377(V) (Nov. 3, 1950).
55 In this more hortatory sense, there may thus still be a role for the General Assembly in urging
Security Council action when the Security Council seems unable to act. See also Report of theSecretary General, Implementing the Responsibility to Protect, A/63/677 (Jan. 12, 2009), para.
63.
56 High-level Panel on Threats, Challenges and Change, A/59/565 (Dec. 2, 2004), at p. 53; for detailsee paragraphs 204-209.
57 “We endorse the emerging norm that there is a collective international Responsibility to Protect,exercisable by the Security Council authorizing military intervention as a last resort, in theevent of genocide and other largescale killing, ethnic cleansing or serious violations ofinternational humanitarian law which sovereign Governments have proved powerless or
unwilling to prevent.” High-level Panel on Threats, Challenges and Change, A/59/565 (Dec. 2,2004), at para. 203.
58 G.A. Res. 60/1, UN DOC. A/RES/60/1 (Oct. 24, 2005) (World Summit Outcome), available at
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N05/487/60/PDF/N0548760.pdf?OpenElement
59 While this construction leaves room for regional organizational involvement under Chapter VIII
(Regional Arrangements), Article 53 is clear that this may only occur with the prior authorizationof the Security Council. See e.g. http://www.un.org/en/documents/charter/chapter8.shtml (UNCharter Chapter VIII, Article 53 expressly provides that – with exceptions pertaining to WorldThe International Law and Policy regarding the Use of Force, Humanitarian Intervention, and the Responsibility to Protect

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War II no longer relevant – “no enforcement action shall be taken under regional arrangements
or by regional agencies without the authorization of the Security Council”).
60 Report of the Secretary General, In Larger Freedom: Towards Development, Security and
Human Rights for All (Mar. 21, 2005), at para. 135.
61 Possessing authority but formally non-binding.
62 Report of the Secretary General, Implementing the Responsibility to Protect, A/63/677 (Jan. 12,2009).
63 Report of the Secretary General, Implementing the Responsibility to Protect, A/63/677 (Jan. 12,2009), at para. 43.
64 See e.g. Certain Expenses of the United Nations, Advisory Opinion, 1962 I.C.J. 151, 168 (July 20)(ICJ finding that coercive peace enforcement is solely within the authority of the Security
Council, although e.g. consensual peacekeeping is not).
65 G.A. Res. 377 (V), U.N. DOC. A/RES/377 (V) (Nov. 3, 1950).
66 S.C. Res. 1674, UN DOC. S/RES/1674 (Apr. 28, 2006) (Protection of Civilians in Armed Conflict).
67 S.C. Res. 1706, UN DOC. S/RES/1706 (Aug. 31, 2006) (Sudan).
68 See also S.C. Res. 1894 (2009), pmbl.
69 UN Charter, art. 24.
70 Thus, the Secretary General has said: “Based on existing international law, agreed at the highest
level and endorsed by both the General Assembly and the Security Council, the provisions ofparagraphs 138 and 139 of the Summit Outcome define the authoritative framework within
which Member States, regional arrangements and the United Nations system and its partners
can seek to give a doctrinal, policy and institutional life to the Responsibility to Protect (widelyreferred to as “RtoP” or “R2P” in English). The task ahead is not to reinterpret or renegotiate theconclusions of the World Summit but to find ways of implementing its decisions in a fully faithfuland consistent manner.” Report of the Secretary General, Implementing the Responsibility toProtect, A/63/677 (Jan. 12, 2009), at para. 2; see also para. 67.
71 Accord, Catherine Powell, “Libya: A Multilateral Constitutional Moment?,” 106 A.J.I.L. 298, 300(Apr. 2012) (“Whereas the first prong restates the affirmative obligations of individual statesthat are now well established under human rights and humanitarian law, consensus on thesecond (what I will call collective assistance) and third (what I will call collective action) prongs
has not gelled; they do not represent established law.”) (footnotes omitted).
72 Report of the Secretary General, Implementing the Responsibility to Protect, A/63/677 (Jan. 12,2009), at para. 3.
73 E.g. David N. Gibbs, First Do No Harm: Humanitarian Intervention and the Destruction of
Yugoslavia (2009).
74 Report of the Secretary General, Implementing the Responsibility to Protect, A/63/677 (Jan. 12,2009), at para. 29.
75 Report of the Secretary General, Implementing the Responsibility to Protect, A/63/677 (Jan. 12,2009), at para. 40.
76 S.C. Res. 940, UN DOC. S/RES/940 (1994) (Haiti); S.C. Res. 1529, UN DOC. S/RES/1529 (2004)(Haiti); S.C. Res. 1542, UN DOC. S/RES/1542 (2004) (Haiti).
77 See e.g. S.C. Res. 1564 (2004), pmbl. (referencing the responsibility of regional governments to“protect their populations”); see also S.C. Res. 1653 (2006) (Great Lakes Region), at para. 10; andS.C. Res. 1706, UN DOC. S/RES/1706 (Aug. 31, 2006) (Sudan).
78 See Asia-Pacific Centre for the Responsibility to Protect, Cyclone Nargis and the Responsibility
to Protect: Myanmar/Burma Briefing No. 2, at 2-3 (May 2008), available at http://www.

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r2pasiapacific.org/documents/Burma_Brief2.pdf.
79 See “The Crisis in Gaza: An RtoP Situation?,” (Dec. 2008-Jan. 2009), available at http://www.
responsibilitytoprotect.org/index.php/crises/178-other-rtop-concerns/2750-the-crisis-in-gaza
80 See e.g. S.C. Res. 1933, UN DOC. S/RES/1933 (2010) (Côte d’Ivoire) (stating in reference to
UNOIC mandate that the protection of civilians is “without prejudice to the primary
responsibility of the Ivorian authorities”); and S.C. Res. 1975, UN DOC. S/RES/1975 (2011),
pmbl. (reaffirming in the preamble “the primary responsibility of each State to protect civilians”
and “[r]eaffirming that it is the responsibility of Côte d’Ivoire to promote and protect all humanrights and fundamental freedoms”).
81 See S.C. Res. 1769, UN DOC. S/RES/1769 (2007) (Darfur, Sudan) (referencing UNAMID’s
mandate to “protect civilians, without prejudice to the responsibility of the Government of
Sudan”).
82 E.g. Ramesh Thakur, “UN Breathes Life Into Responsibility to Protect,” The Star (Mar. 13,
2011), available at http://www.thestar.com/opinion/editorialopinion/article/957664--un-breatheslife-into-responsibility-to-protect.
83 Gareth Evans, “Hypocrisy and War,” EuropeanVoice.com (June 2, 2011), available at http://www.
europeanvoice.com/article/2011/june/hypocrisy-and-war/71261.aspx?LG=1
84 Cf. International Crisis Group, Popular Protest in North Africa and the Middle East (V): Making
Sense of Libya (June 6, 2011) (“to insist that he must go now, as the precondition for any
negotiation, including that of a ceasefire, is to render a ceasefire all but impossible and so to
maximise the prospect of continued armed conflict.”), available at http://www.crisisgroup.org/~/
media/Files/Middle%20East%20North%20Africa/North%20Africa/107%20Popular%20
Protest%20in%20North%20Africa%20and%20the%20Middle%20East%20V%20-%20Making%20
Sense%20of%20Libya.ashx.
85 Id.
86 E.g. Statement by H. E. Ambassador Li Baodong, Permanent Representative of China to theUnited Nations, at the Security Council Open Debate on the Protection of Civilians in Armed
Conflict (May 10, 2011), available at: http://www.china-un.org/eng/hyyfy/t823976.htm. China
voted for S.C. Res. 1970 on Libya (imposing arms embargo and sanctions) but abstained from
S.C. Res. 1973 (authorizing “all necessary measures” i.e. military force, to protect Libyan
civilians).
87 [insert instances from Obama, Sarkozy, and Cameron]88 In contrast, for example, to the first Gulf War in Iraq, where troops stopped short of Baghdad
because they were not authorized to go further and implement regime change.
89 S.C. Res. 1970 U.N. Doc. S/RES/1970 (Feb. 26, 2011), pmbl. (recalling Libya’s Responsibility toProtect).
90 For example, in the case of Afghanistan in 2001, revisionist historians have promulgated themyth that the Taliban refused to negotiate, or to consider turning over Osama bin Laden. E.g.
Alex J. Bellamy, Just Wars: From Cicero to Iraq 171 (2006) (the US attacked “only when it
became clear that the Taliban would not cooperate”). The facts, however, showed that President
George W. Bush made demands that were expressly not “open to negotiation,” showing that “theUnited States government was not acting consistently with the last resort principle.” Stephen R.
Shalom, “Far from Infinite Justice: Just War Theory and Operating Enduring Freedom,” 26 Ariz.
J. Int’l & Comp. Law 623, 627 (Fall 2009), citing Address Before a Joint Session of the Congressof the United States: Response to the Terrorist Attacks of September 11, 2 PUB. PAPERS 1140,
1141 (Sept. 20, 2001).

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91 To the extent that this and similar violence was directed at civilian non-combatants as opposed
to combatants (e.g. either by intentionally bombing civilian targets, as happened for example in
World War II and in the first and second wars in Iraq, or by bombing civilian areas bereft ofmilitary targets), it would be in violation of the jus in bello principle requiring “distinction.” Cf.
Barton Gellman, “Allied Air War Struck Broadly in Iraq; Officials Acknowledge Strategy Went
Beyond Purely Military Targets,” Wash. Post (June 23, 1991), at Al; Thomas J. Nagy, “The Secret
Behind the Sanctions: How the U.S. Intentionally Destroyed Iraq’s Water Supply,” Progressive(Sept. 2001), at 22.
92 E.g. Campbell Clark, “Ottawa backs rebel council, pledges humanitarian aid,” (June 14, 2011),
available at: http://www.theglobeandmail.com/news/politics/canada-recognizes-libyas-rebelcouncil-as-legitimate-voice/article2060025/
93 See e.g. Dr. Kwame Akanor, “African Union’s Mistake of Policy and Principle,” (June 14, 2011)(“R2P remains controversial and the Libyan events exacerbates (rather than eases) ourunderstanding of its application. For instance, are armed rebels trying to overthrow thatgovernment civilians or combatants? Does the claim of civilian protection justify attacking proregime forces? Further, does the call for regime change by the sponsors of the resolution, and thewanton civilian deaths that have occurred as a result of the intervention, not dilute the case for
R2P?”); Editorial, The Washington Times (June 15, 2011) (“ This was the first and probably lastinvocation of the Responsibility to Protect (R2P) doctrine.”); Q & A with Ambassador DanielKurtzer, The Star-Ledger (New Jersey), (June 12, 2011) (“There are still significant holes in theanalysis and policy underpinning what we’re doing in Libya. We intervened there on the basis ofa vague notion, an international law called the Responsibility to Protect. But it’s very unclear
what that means in practical terms. In Libya, we’re using it as a cover to support the rebels andoppose the regime, and in some ways, we’re using it for regime change -- which is not actuallywhat it’s supposed to represent.”); David Swanson, “Is That Even Legal,” (June 5, 2011) (“Theresolution was for a humanitarian intervention, a no fly zone, a cease fire, an arms embargo, anda ban on foreign ground troops. It was immediately used to bomb civilians, introduce arms, andemploy foreign ground troops, not to mention drone bombings and an apparent assassination
attempt -- both practices of highly dubious legality.”); Jeffrey Laurenti, The Trenton Times (June11, 2011) (“The fragile new doctrine of an international “responsibility to protect” cannot survive
its misappropriation by the West for regime change.”).
94 E.g. UN Department of Public Information, Press Release, “Security Council Fails to Adopt Draft
Resolution Condemning Syria’s Crackdown on Anti-Government Protestors, Owing to Veto by
Russian Federation, China” (Press Release SC/10403, Oct. 4, 2011), available at https://www.
un.org/News/Press/docs/2011/sc10403.doc.htm.
95 “American remains the one indispensable nation, says President Obama,” Examiner.com (Oct.
23, 2012), available at http://www.examiner.com/article/american-remains-the-one-indispensablenation-says-president-obama.
96 E.g. “Obama to Members of Congress: Action Versus Libya to Last ‘Days not Weeks’,” (Mar. 18,
2011), available at: http://blogs.abcnews.com/politicalpunch/2011/03/obama-to-members-ofcongress-action-versus-libya-in-days-not-weeks.html
97 David D. Kirkpatrick and Steven Lee Myers, “Libya Attack Brings Challenges for US,” The New
York Times (Sept. 12, 2012) (the assault was “spearheaded by an Islamist brigade formed during
last year’s uprising against Col. Muammar el-Qaddafi”), available at https://www.nytimes.
com/2012/09/13/world/middleeast/us-envoy-to-libya-is-reported-killed.html?_
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98 A bipartisan group of US Congressmen filed a lawsuit arguing that the Libyan war is illegal andunconstitutional under domestic US law, failing to comply with the War Powers Act; the Obamaadministration argued in response that the hostilities and the limited supporting role of the US
don’t trigger the law. See e.g. Scott Wilson, “Obama Insists Role in Libya Follows Law,”
Washington Post (June 15, 2011), available at: http://www.boston.com/news/nation/washington/
articles/2011/06/16/obama_insists_role_in_libya_follows_law/
99 Chalmers A. Johnson, Blowback: The Costs and Consequences of American Empire (2nd ed.
2004).
100 See e.g. Alexander B. Downes, “Catastrophic Success: Foreign-Imposed Regime Change and Civil
War” (July, 2010), available at http://www.duke.edu/~downes/documents/DOWNES_CATASTROPHICSUCCESS_JULY2010.pdf.
101 http://www.crisisgroup.org/en/regions/middle-east-north-africa/north-africa/libya/107-popularprotest-in-north-africa-and-the-middle-east-v-making-sense-of-libya.aspx
102 E.g. Ryan Goodman, Humanitarian Intervention and Pretexts for War, 100 Am. J. Int’l. L. 107,
116 (2006).
103 http://www.iraqbodycount.org/
104 http://www.alternet.org/story/148622/wikileaks_docs_underestimate_iraqi_dead?page=entire
105 Joseph Stiglitz and Linda Bilmes, The Three Trillion Dollar War: The True Cost of the Iraq
Conflict (New York: Norton 2008).
106 Although Professor Ryan Goodman has argued that relaxing the standard so as to legalize
unilateral humanitarian intervention might decrease the tendency of states to use humanitarian
intervention as a pretext for wars undertaken for other motives, this remains a highly
contestable proposition. See e.g. Ryan Goodman, Humanitarian Intervention and Pretexts for
War, 100 Am. J. Int’l. L. 107, 116 (2006) (arguing that legalizing unilateral humanitarian
intervention and “encouraging aggressively minded states to justify force as an exercise ofhumanitarian intervention can facilitate conditions for peace” including because humanitarianforce is supposedly less prone to escalation and more prone to face-saving, negotiatedsettlements). The argument reminds me not so much of the position that legalizing drugs will
reduce their use as the National Rifle Association’s much more empirically suspect argumentthat proliferating small arms will help prevent genocides.
107 See e.g. Thomas Rich, Fiasco: The American Military Adventure in Iraq (New York: Penguin,2006).
108 See Farewell Address of President Dwight D. Eisenhower (Jan. 17, 1961), available at http://
www.americanrhetoric.com/speeches/dwightdeisenhowerfarewell.html (“[W]e must guard against
the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial
complex.”)
109 See e.g. Joe W. (Chip) Pitts, “The Limits of the Military Metaphor,” The American Prospect (Sept.
2011), available at http://prospect.org/cs/articles?article=limits_of_the_military_metaphor.
110 See e.g. the impressive list of NGO’s working with the governments in the International
Coalition for the Responsibility to Protect, available at: http://www.responsibilitytoprotect.org/
index.php/about-coalition/current-members -- but note the interpretation focused on Security
Council authorization as opposed to unilateral action, and the cautions (i) that R2P is restricted
to the four categories commonly referenced, (ii) that it should “not be interpreted as a newversion of military humanitarian intervention,” and (iii) that the coalition members agree to“guard against abuse of the norm by governments, regional organizations or internationalorganizations.” http://www.responsibilitytoprotect.org/index.php/about-coalition/our-The International Law and Policy regarding the Use of Force, Humanitarian Intervention, and the Responsibility to Protect

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111 Ryan Goodman, Humanitarian Intervention and Pretexts for War, 100 Am. J. Int’l. L. 107, 108(2006).
112 As merely one example of possibly counterproductive, unintended consequences from the use of
military force, a “fateful” US missile strike in Afghanistan in 1998 apparently healed a breachthat had been emerging between Osama bin Laden and Mullah Omar of the Taliban, leading
Mullah Omar to refrain from turning bin Laden over to the Saudis as he had previously planned.
See Alan Cullison & Andrew Higgins, “Strained Alliance: Al Qaeda’s Sour Days in Afghanistan-Fighters Mocked the Place; Taliban, in Turn, Nearly Booted Out bin Laden--A Fateful U.S.
Missile Strike,” Wall St. J. (Aug 2, 2002), at A1.
113 See, e.g. Greg Mitchell, So Wrong for So Long: How the Press, the Pundits – and the President –Failed on Iraq (New York: Union Square Press, 2008); Howard Friel and Richard Falk, The
Record of the Paper: How the New York Times Misreports US Foreign Policy (New York: Verso,
2004).
114 E.g. on travel, financial transfers, luxury goods.
115 Cf. Report of the Secretary General, Implementing the Responsibility to Protect, A/63/677 (Jan.
12, 2009), at paras. 43-45.
116 Report of the Secretary General, Implementing the Responsibility to Protect, A/63/677 (Jan. 12,2009), at para. 10 (b).
117 As also urged by the Secretary General, Implementing the Responsibility to Protect, A/63/677(Jan. 12, 2009), at para. 62.
118 See e.g. Program on Liberation Technology, Stanford University, available at http://liberationtechnology.stanford.edu/; Berkeley Law School Conference, “Early Warning Systems,”(Apr. 27, 2011), available at http://www.law.berkeley.edu/HRCweb/events/TechConference2011/
livestream/warning.html; Patrick Meier, “The Role of Ushahidi as a Liberation Technology,”
Stanford event, available at http://cddrl.stanford.edu/events/6426; “Early Warning for Protection:
Technologies and practice for the prevention of mass atrocity crimes,” http://www.oxfam.org.au/
act/events/early-warning-for-protection