Security and Law: A Reality Check
Ms Ashley Müller: Hello and thanks for tuning in again, I am Ashley Müller with the GCSP and welcome to episode 2 of this mini-series on Responsibility to Protect Revisited. In this episode, Tobias and Gareth explore use of force and responsibility while protecting.
Mr Tobias Vestner: We can, since you already touch upon several issues, then go a step further to the latest news, where we say, okay, there were use of chemical weapons in Syria. And in the end, I mean 2017, but especially 2018, there were strikes by the UK, France and the US in retaliation for the use of chemical weapons. And what we see is that in France and the US, they didn't even bother to give a legal justification. On the other hand, the UK clearly said that it was legal according to the principle or the premises of humanitarian intervention. So here we're having R2P we're having responsibility while protecting and now we have suddenly the emergence again of humanitarian intervention like a little bit of a zombie that is coming back that we might thought we had eradicated. So how do you see those concepts? How do you see the current scenarios? How do you see the deadlock?
Professor Honourable Gareth Evans: We always need to remind ourselves that use of force is not the be all and end all of R2P is just one mechanism. And at the most extreme end of the spectrum, for dealing with extreme situations, when they have got completely out of hand, use of force against the will of the country in question, coercive force, it's only in those cases, and, of course, the bar is always going to be very high indeed. And it should be very high before the use of force is ever embraced. When we wrote our original report, we were very concerned to make clear that use of force needed to satisfy two big boxes, in fact, three big boxes when you think about it, preconditions, it had to be legal, it had to be legitimate, and nd it also had to be practically deliverable. And we had something to say certainly about legality, something to say a lot about legitimacy, we didn't have a lot to say about practical deliverability. But in the real world, that becomes very important indeed. So when we talk about any of these cases that you might want to get onto about, you know, whether they're appropriate cases for use of military force or not, whether it's the response to the chemical weapons use in Syria and Douma, in April this year, or whether it's Venezuela or whether its Myanmar or anything else. Let's just before we get to any of those cases, let's just get clear what the basic principles are here because they were pretty clearly articulated in that report, and pretty clearly understood by the, I think, the wider international community.
First thing, when it comes to legality, there really is only one game in town, and when it comes to use of force in an R2P context, and that is Security Council approval under Chapter Seven, or Chapter Eight, the regional organisations, which is an alternative way of getting to formal approval, other than in self defense cases, which are very rarely the context here under Article 51, of the UN Charter. There is from time to time, a rearguard effort mounted by the lawyers in the UK Foreign Office, and sometimes by the United States State Department, some attempt to argue that there is now some kind of customary international law which justifies the use of force without Security Council approval, in cases of impending or threatened use of Weapons of Mass Destruction, or maybe, indeed, even in Mass Atrocity Crime cases. Generally, as much as I would like that to be the case, I have to say, from lawyers perspective, it's complete nonsense, you only get to be established as a rule of customary international law, when there's a long record of custom and practice, together with endorsement by the great and the good among the international law academics and so on, but custom and practice, and you just cannot say that there's anything remotely resembling universal buy-in to non Security Council authorised use of force. In these sorts of cases, it just doesn't exist. So legality can only be satisfied by Security Council or Chapter Eight authorisation.
Legitimacy is something else again, because I think it is now very clearly understood that some cases can be legal but not legitimate other cases can be legitimate or not legal. Legitimacy involves satisfying multiple criteria, which have now been pretty clearly identified, not in any General Assembly Resolution, not any Security Council Resolution. We nobody wants to go down the path of trying to debate these things and get formal agreement about it. But in the report of our commission in the report of the Secretary General's high level, panel on threats, challenges and change in multiple other commentaries, it's now pretty well universally accepted. I think that there are five criteria of legitimacy, which really ought to be satisfied before you go down the path of using force not only in R2P cases, but indeed in In any case:
- The first criterion is that the risk of harm or the threat of harm is of such a character nature magnitude, as to prima facie justify the use of force. There's no way of defining that more precisely in numerical terms, but there has to be some kind of threshold of seriousness of impending harm, before you can even start thinking about so that's the first thing.
- The second one is proper purpose, proper intent. This is the subjective criterion very hard in practice, to wrestle with and articulate and identify, but we sort of know it when we see it and know it when we don't see it. That is, is the primary motivation for the use of force in the case in question, to halt or avert catastrophic harm being perpetrated? Or is there some other motive whether it's oil or bananas, or whatever? Very often the case that there will be other motives in play, but is the primary motive, the main compelling driving force that justifies the case being made? Is it the moral one of preventing, hatling, averting atrocity crime?
- The third criterion of legitimacy is last resort. Is this the only reasonable way of addressing the situation? Or is it the case that non foreseeable options still have some prospect of success? This is often misunderstood. The last resort criterion is requiring endless patience while you're hanging around while the weeks the months pass, and you wait to see if sanctions have worked or something else worked, no, it doesn't mean that it means they being the reasonably available judgment that on all available information, nothing else is likely to stop the harm in question then use the military for and this is exactly the kind of consideration which justify the Benghazi, the Libyan case, if you'd waited around to see where the sanctions bit or, you know, with a Gaddafi really was going to be deterred by the prospect of International Criminal Court prosecution, there would have been 10 or 20,000 people dead, and blood on all of our hands as a result. So last resort doesn't mean waiting, but it does mean a reasonably available objective judgment.
- The fourth criterion is that of proportionality. is the nature of the response in terms of its magnitude as duration, its severity, proportional to the nature of the threat, the harm that's being caused, or that you're seeking to avert. And again, I think part of the problem in Libya was that the force was appropriate to the civilian protection objective. But it was a disproportionate use of force to move up the scale to regime change. But the notion of proportionality, I think, everybody understands.
- The fifth criterion of legitimacy is really the most critical one in many ways, and it haunts the discussion and probably should have everything else. And that's the balance of consequences. When you put it all together and shake it is more good than harm going to be done by military intervention or are you so uncertain about the consequences of military intervention or so well aware that there is going to be catastrophic collateral damage involved to so many more people as a result of it that is just not a sensible course to undertake?
- Mr Tobias Vester: You mentioned Libya. You mentioned Syria. You mentioned the UN Security Council. You mentioned military force. So with the goal of being really straight to the point? Well, following the debacle in Libya in 2011, then Brazil came up with the Responsibility while Protecting so saying, okay, we have to bring that a little bit further. There has to be a criteria that have to be discussed before using force. And also there has to be a review mechanism. So the question would be that this initiative lead anywhere, are there any lessons here?
Professor Honourable Gareth Evans: If you're looking for a way to recreate consensus in the Security Council, following the debacle of Libya, and the very negative implications of that for Security Council decision making subsequently, I think the Brazilian proposal going back to 2011 of RWP - Responsibility While Protecting is and remains the best way forward. And I think it's very important to keep that particular flame alive. What is the idea? The idea is essentially, very, very simple when stripped was a lot of debate about it. But when it's stripped down to its essentials, it is, as you say, has two components.
One was that if a military mandate is to be granted by the Security Council, then it should only be after very careful and detailed and self conscious attention is given to the criteria of legitimacy. And I'll come back to what that means in just a moment. For the use of military force, that in order to build a genuine consensus, in other words, not just a transient consensus or response to passing pressures that people feel that a genuine consensus, there should be attention paid to those understood criteria, not criteria of legality, but criteria of legitimacy and maximum possible buy in should be reached. That was the first part of the proposal and seems to me to be eminently sensible.
The second part of the Brazilian proposal was essentially there should be some kind of monitoring and review mechanism, not necessarily very formal, but one to which there was genuine buy-in by all members of the Security Council, such that when a military mandate was given in an R2P situation, or indeed any situation but an R2P one, let's assume, there would be regular review of how that mandate was being applied by the Security Council. The countries that were conducting the use of force would have to come back to the Council and explain whether the mandate was sufficient for the particular purpose that had been identified the civilian protection purpose, or whether it needed extension or variation and give other countries an opportunity to say that the mandate is being exceeded and overreached in order to be narrowed or concluded.
We’re used to sunset clauses; we're used to periodic reviews of mandates in the context of Protection of Civilians mandates and Peacekeeping Operations. This is no big deal for the Security Council to accept it. But it is offensive to some countries on the Security Council and the United States wants to preserve at all costs it's divine right to ad hoc-ery, when it comes to dealing with these situations. And I'm afraid sometimes the US and the UK have not been very much better. And they are still reluctant to accept even to this day that they may have overreached in Libya in 2011, and caused the problems largely themselves that we're now confronting. But if that if that bites that idea of careful attention to criteria and agreement on regular review, monitoring and reconsideration of the continued applicability of the mandate, if that could be agreed, then I think we could recreate consensus, because going back to the point I was making about the normative force of R2P, for all the posturing and the great power thuggery and so on that goes on the realpolitik, I don't think anybody, anybody really wants to go back to the bad old days, when these atrocities were occurring on a massive scale and the international community was just pretending that it was absolutely nobody's business. I think there is a genuine moral obligation that is being felt even by the most implausible of countries. And we ought to find ways of operationalising that moral sentiment and taking away the excuses they now have for not doing anything.
Ashley Müller: That's all we have now for this episode. Thank you to Mr Tobias Vestner and Professor Honourable Gareth Evans for this important conversation on use of force and responsibility while protecting. Keep this mini-series rolling and listen to our next episode on the strategies for prevention, a plea in Mitigation and an optimistic call to action. In the meantime, don’t forget to subscribe to us on Apple iTunes, follow us on Spotify and SoundCloud. Click the next button to get the next episode!
Listen to Episode 3!