From Paralysis in Rwanda to Boldness in Libya: Has the International Community Taken "Responsibility to Protect" from Abstract Principle to Concrete Norm under International Law? (2011)

I. TWENTIETH-CENTURY HUMANITARIAN INTERVENTION Military Intervention in Kosovo in 1999 II. INTERVENTION IN THE TWENTY-FIRST CENTURY Non-Security-Council-authorized, Multilateral Humanitarian Intervention III. EFFECT OF INTERVENTION IN LIBYA ON INTERNATIONAL LAW Intervention in Syria IV. CONCLUSION I. TWENTIETH-CENTURY HUMANITARIAN INTERVENTION Sovereigns have a responsibility to protect their citizens. They are responsible for functions of protecting safety and lives of citizens and promotion of their welfare. (1) Another modern view endorsed by states affirms [e]ach individual State has responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails prevention of such crimes, including their incitement, through appropriate and necessary means. (2) The United Nations developed a three pillar system to encourage responsibility to protect: 1) protection responsibilities of State, 2) international assistance and capacity-building, and 3) timely and decisive response. (3) Many commentators emphasize prophylactic aspect of responsibility to protect. (4) Emphasis on preventative measures has been promoted in context of eliminating moral hazard of intervention. (5) However, U.N. Charter also acknowledged a state's right to be free from intervention. (6) These two values conflict, as they do in domestic systems, such as in U.S. where right to be free from unreasonable searches and seizures clashes with government's interest in crime control. (7) The importance of human rights law and policy strengthened during twentieth century, changing balance. The increased importance of human rights law is manifested by UN Charter (1945) (8); instruments such as Universal Declaration of Human Rights (1948) (9) and International Covenant on Civil and Political Rights (1966); (10) numerous human rights institutions, such as Inter-American Commission on Human Rights (1959), (11) European Court of Human Rights (1959); (12) organizations, such as Amnesty International (1961) and Human Rights Watch (1978); (13) and international humanitarian law courts, including Nuremberg tribunals (1945), (14) International Criminal Tribunal for Former Yugoslavia (1993), (15) and International Criminal Court (2002). (16) These structures plainly embody modern enthusiasm for norms and mechanisms for protection of human rights. When balance tilts towards human rights, society desires intervention, which is defined broadly as any application of pressure to a state. (17) The humanitarian appellation is applied to interventions that occur when a state intervenes in order to protect individuals from only most serious crimes (for example, genocide, war crimes, ethnic cleansing, and crimes against humanity) (18) or denial of a more expansive list of rights (such as access to food, employment, and environmental security). (19) The prototypical humanitarian intervention occurs where ethnic, religious, or political (opposed to regime in power) minorities need protection. The Kosovo intervention was humanitarian in nature and sought to protect Kosovars, who are primarily of Albanian origin and Islamic. (20) The Libyan intervention protected political opposition members. (21) Historically, states have intervened to protect individuals from harm. Humanitarian intervention was strongly supported in 19th century, when international law was less reserved about use of force. (22) One noted academic claims humanitarian intervention was basis for founding of U.S. and that English King's principal end in granting Massachusetts Bay Colony its Charter was to rescue the natives from their bitter pagan fate. (23) The UN Charter, specifically Article 2(4) in conjunction with Article 51, supports Security Council authorized intervention. …