undergrad dissertation.docx submitted copy

SID: 1118307 UNDERGRADUATE MAJOR PROJECT IN LAW CODE: MOD000058

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ANGLIA RUSKIN UNIVERSITY

Dissertation Declaration

Title of Award

BACHELOR OF LAWS (LLB)

Date

11TH DECEMBER 2015

SID Number

1118307

Name of Supervisor

DR. ALDO ZAMMIT BORDA

Title of Dissertation

THE USE OF FORCE AND ITS RECENT DEVELOPMENTS:

HUMANITARIAN INTERVENTION AND RESPONSIBILITY TO PROTECT.

Word Count

9, 971

DECLARATION: I declare that the above work is my own and that the material

contained herein has not been substantially used in any other submission for an academic

award.

Signed: LESLEY ORERO Date: 11/12/2015

All dissertations, projects etc., submitted as part of an assessment process for a degree become

University property once handed in, and are not normally available to be returned. It is

therefore recommended that candidates retain a personal copy. The submitted copy may be

retained by the University for Reference by others.


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SUPERVISOR CONTACT LOG

Date and time of

Meeting

Notes Supervisor’s

initials

16/07/2015 11am-12pm

Discussed dissertation topic and how to narrow

it down.

11/09/2015 1pm-2pm

Extensive discussion on plan and procedure for

research.

15/11/2015 Email

Clarification on certain points on the content of

the abstract and introduction.

16/11/2015 12pm-1pm

Discussion of progress and more insight into

chapter 5 and conclusion. Emailed me a

proposed article to read on Responsibility to

Protect.

08/12/2015 1pm-2pm

Discussed difficult areas; literature review,

methodology and conclusions. Proposed

corrections and alternative ways to approach

the areas.

This form is to be submitted for signature by your supervisor on every occasion that you

consult him or her regarding your dissertation. The completed log must be submitted with

your dissertation.


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Contents Abstract. ................................................................................................................................................. 4

1. Introduction. ...................................................................................................................................... 5

1.1 Brief outline and the importance of the study of the Use of Force. .............................................. 5

1.2 Literature Review. ......................................................................................................................... 8

1.3 Methodology. ................................................................................................................................ 9

1.4 Dissertation Outline. ................................................................................................................... 10

2. The Use of Force. ............................................................................................................................. 11

2.1 Defining the Use of Force and the origin of the law. .................................................................. 11

2.2 The law on the Use of Force. ...................................................................................................... 13

3. Exceptions to the Rule. ................................................................................................................... 17

3.1 Self-defence. ............................................................................................................................... 17

3.2 United Nations Security Council Authorisation. ........................................................................ 21

4. Humanitarian Intervention. ........................................................................................................... 26

4.1 Defining Humanitarian Intervention. .......................................................................................... 26

4.2 Legality and legitimacy of Humanitarian Intervention. .............................................................. 27

5. Responsibility to Protect (R2P). ..................................................................................................... 33

5.1 Brief background and evolution of the Responsibility to Protect. .............................................. 33

5.2 Responsibility to Protect in action. ............................................................................................. 35

5.3 The future of Responsibility to Protect ....................................................................................... 37

6. Conclusion. ...................................................................................................................................... 42

7. Bibliography. ................................................................................................................................... 45

7.1 Primary Sources. ......................................................................................................................... 45

7.1.1 Case Law. ............................................................................................................................ 45

7.1.2 United Nations Documents. ................................................................................................ 45

7.2 Secondary Sources. ..................................................................................................................... 46

7.2.1 Books. .................................................................................................................................. 46

7.2.2 Journal Articles .................................................................................................................... 47

7.2.3 Reports ................................................................................................................................. 49

7.2.4 Websites and Blogs .............................................................................................................. 49

7.2.5 Newspapers .......................................................................................................................... 51


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THE USE OF FORCE AND ITS RECENT DEVELOPMENTS:

HUMANITARIAN INTERVENTION AND RESPONSIBILITY TO PROTECT.

Abstract.

International law remains a developing and dynamic subject. The aim of this thesis is to

demonstrate that, the set law on the use of armed force under international law is progressively

evolving with the contemporary world it attempts to govern. The law illustrates development

not only in its prohibition but also in its exceptions such as self-defence and United Nations

(UN) authorisation, with regards to the new threats faced in the world at present. This study

presents a critical analysis on this area of international law that has resulted into the concepts

of humanitarian intervention and responsibility to protect (R2P). The analysis will show that

these recent developments are yet to become law by the standards on which international law

is judged. Nonetheless, they have a huge impact on the law itself and show a gradual shift in

the status quo. Thus a development in the law over time.

The effectiveness of international law is challenged by some of its fundamental principles such

as state sovereignty, human rights and security which have influenced the development of

humanitarian intervention and R2P. Indeed, the existing state of affairs driven by an interest in

supporting collective rights through international organisations; which monitor and identify

various violations; leaves no room for the law to remain docile. Yet, some situations have set

a crucial reminder on how international law is inadvertently affected by geopolitics. This is

evidently illustrated by the dispute between the powerful states, that stress on the importance

of an alliance of great powers for the maintenance of international peace and the smaller states

which rely more upon the juridical world institution. This tussle between power and the law is

demonstrated by the analysis of the development of the prohibition on the use of force.


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1. Introduction.

1.1 Brief outline and the importance of the study of the Use of Force.

The use of force is an integral part of international law formidable as it may be. International

law itself, could be argued to be inevitably and irrevocably imbued with a general way of

thinking that is both time and place specific.1 Due to the concept of sovereign equality,

regulation of the use of force at an international level lacks exclusive control. International law

relies on the cooperation of states in order to limit the use of force with scarcely any

enforcement mechanism to make sure its rules are complied with. This thesis will explore and

critically analyse the law and its development in the concepts of humanitarian intervention and

responsibility to protect (R2P) in relation to the use of force. Terrorism and violence by non-

state armed groups; such as Daesh2; is also a growing area of importance in international law.

However, this has not been covered in this dissertation which sort to mainly focus on use of

force by states. To achieve a coherent understanding on the law and its development, the thesis

will explore treaties, cases, case studies as well as academic comments and arguments, reaching

a conclusion on why the law is unenforceable resulting to its development through the above

concepts.

The use of force is a key area of international law due to the devastating impact it has on society

as a whole. Since the end of the First World War in 1918, there has been a positive attempt to

substantially stop the resort to the use of armed force. Even so, from the end of the Second

World War in 1945, there have been over 300 internal and international armed conflicts3 such

as the Rwandan genocide, the Libyan and Syrian crises which are a few in recent history.

1 Wade Mansell and Karen Openshaw, International Law: A Critical Introduction (Hart Publishing 2013) 1. 2 Daesh - an acronym for an Arabic variation of the group’s name: al-Dawla al-Islamyia fil Iraq wa’al Sham. Alan Yuhasin, ‘US general rebrands Isis 'Daesh' after requests from regional partners’ The Independent (New York, 19 December 2015) < http://www.theguardian.com/world/2014/dec/19/us-general-rebrands-isis> accessed 10 December 2015. 3 Gideon boas, Public International Law: Contemporary Principles and Perspectives (Edward Elgar Publishing 2012) 307.

http://www.theguardian.com/world/2014/dec/19/us-general-rebrands-isis


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Taking Syria as an example, it is currently said to be the ‘most painful and tragic violent

conflicts of the twenty-first century’4, making it one of the most severe development and

humanitarian disasters in recent history. It has engaged the international community in what

began as a civil war in 2011 and has since escalated into a full-fledged war. There have been

approximately 200,000 people killed; both combatants and civilians; and 7.6 million internally

displaced people.5 There are four million refugees under the UN mandate, making it the largest

refugee population and an estimation of 4.27 million by the end of 2015. As a result, the worst

exodus since the Rwandan genocide in 1994.6

The graph below shows the most visible elements of the Syrian crisis. The drastic influx of

refugee status indicates not only the ‘destruction of its economic, human, cultural and social

capital but also the disputation of its national identity’7.

4 Syrian Centre for Policy Research, Syria: Squandering humanity (Socioeconomic Monitoring Report on Syria, May 2014) 45. 5 Global Conflict Tracker, ‘Civil War in Syria’ (Council on Foreign Relations, updated 3 December 2015) <http://www.cfr.org/global/global-conflict-tracker/p32137#!/?marker=6 > accessed 3 December 2015. 6 Mercy Corps, ‘Quick facts: What you need to know about the Syria crisis’ (Mercy Corps, updated 7 October 2015) <https://www.mercycorps.org/articles/turkey-iraq-jordan-lebanon-syria/quick-facts-what-you-need-know-about-syria-crisis> accessed 3 December 2015. 7 Syrian Centre for Policy Research, Syria: Squandering humanity (Socioeconomic Monitoring Report on Syria, May 2014) 7.

http://www.cfr.org/global/global-conflict-tracker/p32137#!/?marker=6

https://www.mercycorps.org/articles/turkey-iraq-jordan-lebanon-syria/quick-facts-what-you-need-know-about-syria-crisis



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Figure 1.1 Graph of Syrian Refugee Crisis Development.8

In Turkey, Lebanon and Jordan, asylum seekers are expected to increase by almost a million

in 2015, reaching 4.7 million by December.9 Although it started as a civil war, the armed

conflict in Syria has now become an international issue because the onus is on the international

community to deal with ‘economic degradation, mass unemployment and poverty, social

injustice and global marginalisation that has alienated the vast majority of people from their

habitat, communities, employment, businesses and means of living, leaving millions of men,

8 Mercy Corps, ‘Quick facts: What you need to know about the Syria crisis’ (Mercy Corps, updated 7 October 2015) <https://www.mercycorps.org/articles/turkey-iraq-jordan-lebanon-syria/quick-facts-what-you-need-know-about-syria-crisis> accessed 3 December 2015. 9 Gregor Aisch, Sarah Almukhtar, Josh Keller and Wilson Andrews, ‘The Scale of the Migrant Crisis, From 160 to millions’ The New York Times ( New York, updated 22 September 2015) <http://www.nytimes.com/interactive/2015/09/10/world/europe/scale-of-migrant-crisis-in-europe.html?action=click&contentCollection=Middle%20East&region=Footer&module=WhatsNext&version=WhatsNext&contentID=WhatsNext&moduleDetail=undefined&pgtype=Multimedia> accessed 3 December 2015.



http://www.nytimes.com/interactive/2015/09/10/world/europe/scale-of-migrant-crisis-in-europe.html?action=click&contentCollection=Middle%20East&region=Footer&module=WhatsNext&version=WhatsNext&contentID=WhatsNext&moduleDetail=undefined&pgtype=Multimedia




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women and children scarcely able to sustain bare life above the biological minima of

existence’10.Forty years of human development has been lost.11

For the purposes of the UN Charter thus stating, ‘to achieve international co-operation in

solving international problems of an economic, social, cultural or humanitarian character and

in promoting and encouraging respect for human rights and for fundamental freedoms for all

without distinctions as to race, sex, language or religion,’12 the use of force is an important area

of study. The brief outline on the ongoing situation in Syria connotes that the use of force

affects all aspects of the quoted objective from the Charter.

1.2 Literature Review.

Mansell and Openshaw’s International Law; A Critical Introduction (2013), presented a very

critical and analytical overview of international law as a whole. It gave a very coherent analysis

of the geopolitics behind contemporary international law, for example the workings of the

United Nations Security Council (UNSC) in relation to the permanent members and the rest of

the international community. This conceptualised an understanding of the developments of

humanitarian intervention and R2P. However the critical nature of this book resulted into a

more detailed analysis of the political issues of power and states rather than the legal aspects

of use of force, humanitarian intervention and R2P; which were also discussed but not in as

much detail.

Gideon Boas’ Public International Law; Contemporary Principles and Perspectives (2012),

gave a detailed discussion of the use of force, with brief history showing a logical development

10 Syrian Centre for Policy Research, Syria: Squandering humanity (Socioeconomic Monitoring Report on Syria, May 2014) 45. 11 Ben Norton, ‘The Shocking Statistics behind Syria’s Humanitarian Crisis’ (Think Progress, 2 June 2014) <http://thinkprogress.org/world/2014/06/02/3443171/syria-crisis-stats/> accessed 3 December 2015. 12 United Nations (UN) Charter (24 October 1945) 1 UNTS XVI art 1(3).

http://thinkprogress.org/world/2014/06/02/3443171/syria-crisis-stats/


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of the law in self-defence and humanitarian intervention. As it was published in 2012, it lacked

the most recent developments of R2P, still a developing concept then.

Abass’ Complete International Law (2014) was a very thought provoking text, setting out

learning objectives at the beginning of the chapters highlighting what would be covered within.

Its key points and thinking points within the chapters probed the reader on what they have read

to assess their level of understanding. It also provided key books and journal articles in its

further reading section, enabling more research on the topic. Given that it was the most recently

published book, it covered the most current affairs on the use of force such as the Syrian Crisis.

It was a very detailed book thus essential to edit irrelevant information with regards to the

dissertation.

1.3 Methodology.

For the purposes of this dissertation, secondary research was undertaken which involved

collation of information from various sources including books, treaties, cases, journal articles,

newspapers, websites, interviews, lectures and reports. Some of the factors considered were

accuracy, cost, time and wide range of information. Secondary research was the most viable

method as it was time and cost effective with extensive resources and easy accessibility. The

use of force in international law is an expansive topic which has been widely researched on by

academics, political analysts, journalists and even policy makers. It was preferable to access

the research that has already been conducted rather than primarily obtaining information from

key individuals through surveys or interviews, which would have proved difficult.

As society changes so does the law. Researchers have different objectives for the outcome of

their research. The university library database is a comprehensive one stop shop catalogue

with links to various other sources and legal databases. To narrow down the research and tailor

it to the aims of this dissertation, specific words such as “use of force”, “R2P”, “humanitarian

intervention”, “United Nations”, “self-defence” and “collective security” were entered into the


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main library database and other databases accessed from the library such as Westlaw and Lexis

law library. Once the results were sourced it was essential read through and pick out the

relevant documents for further reading.

1.4 Dissertation Outline.

As stated in the brief introduction above, this thesis will focus on analysing the use of force

and its development in international law. Chapter two will give a clear definition of the use of

force, a brief history on its development, the current law that regulates it. Chapter three will

focus on the exception on the prohibition of the use of force looking in depth at the law and the

controversial areas prompted. Chapter four will explore humanitarian intervention, as

developed concept on the use of force by defining it and giving arguments for and against its

legitimacy. Chapter five will delve into the principle of responsibility to protect through

definition and a brief background to its development explaining its core values and the shift of

state responsibility. Chapter six will conclude the arguments formed in the previous chapters

clearly showing there has been a development on the law owing to the fact that, the original

law written was written with the use of force between states in mind rather than the non-state

actors.


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2. The Use of Force.

2.1 Defining the Use of Force and the origin of the law.

The foreword of the book Right v Might states,

Man’s readiness to settle differences by force of arms has been a feature of society

since pre-history. Man’s attempt to place rational bounds on the use of force

emerging from his revulsion against the scourge of war is almost as old. This

struggle to impose ‘rationality on reality’ was a central feature of the enlightenment

and age of reason in the eighteenth century.13

This view is evidently illustrated below by the image of the knotted gun statue, situated in front

of the UN headquarters in New York. It denotes a change in the fundamental mind set of the

society on the readiness to result into force to solve differences. Even more iconic is its

placement in front of the headquarters of the organisation formed with the intent to maintain

international peace and security.

Figure 1.2: Statue of the Knotted Gun, United Nations Headquarters New York.14

13 Foreword and Afterward by John Temple Swing in Louis Henkin et al (eds), Right v Might: International Law and the Use of Force (Council on Foreign Relations Press 1989). 14 Jeremy Meyer, ‘Knotted Gun Sculpture’ (The Spot for Politics and Policy, 18 December 2012) <http://blogs.denverpost.com/thespot/2012/12/18/denver-assault-weapons-ban-books-1989/87342/knotted-gun-sculpture/> accessed 3 December 2015.

http://blogs.denverpost.com/thespot/2012/12/18/denver-assault-weapons-ban-books-1989/87342/knotted-gun-sculpture/

http://blogs.denverpost.com/thespot/2012/12/18/denver-assault-weapons-ban-books-1989/87342/knotted-gun-sculpture/


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The law on the use of force is regulated by both treaty and customary law; as will be established

in this chapter; however the definition of the use of force is contentious. The use of force is

regulated in two ways, the circumstances in which force can be employed; jus ad bellum; and

the law of war; jus in bello; which regulates how war is conducted once it has begun.15

Therefore to consider the constraints on the use of force, the circumstances under which the

proposed use of force is used must first be considered, as different situations trigger the

application of different rules.

The right to wage war before the First World War was widely unrestricted. After the war

however, a real thought was given to the problem of how to deter states from waging war

against each other in the first place, due to the brutal consequences of war. The League of

Nations (1919); established after the First World War; provided a forum where states could

negotiate and discuss differences rather than resorting to war and imposed limitations on the

use of force. It did not set out to abolish war but control the way in which war was conducted.

The General Treaty for the Renunciation of War (1928), also known as the Kellogg-Briand

Pact, sort to reject war altogether in contrast with the Covenant of the League of Nations, which

imposed procedural constraints to reduce the likelihood of war. This pact was inspired by a

liberal internationalist view that, war could be prevented and abolished with a combination of

enlightened diplomacy and collective solidarity.16 Its failure was that it was only a pact and

had no enforcement provisions as shown by the Japanese invasion of Manchuria in 193117. Its

importance nonetheless was twofold in that, it bound its signatories in its suggestion that

recourse to war could amount to breach of international law and it was partly the legal basis

15 Wade Mansell and Karen Openshaw, International Law: A Critical Introduction (Hart Publishing 2013) 182. 16 Wade Mansell and Karen Openshaw, International Law: A Critical Introduction (Hart Publishing 2013) 185. 17 Ian Brownlie Principles of Public International Law (7th edn, Oxford University Press 2008) 731.


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for the prosecutions of the Nuremberg trials and still remains law today18. Mr Henry L.

Stimson, the secretary of state of the United States then, stated;

War between nations was renounced by the signatories of the Kellogg-Briand

Treaty. This means that it has become throughout practically the entire world an

illegal thing. Hereafter, when nations engage in armed conflict, either one or both

of them must be termed as violators of this general treaty law. We denounce them

as lawbreakers.19

It set out the origin and basis of the current law prohibiting the use of force and establishing

the international norms pertaining to threat or use of military force.

2.2 The law on the Use of Force.

The United Nations was formed with the intention that it would be the body regulating and

maintaining international peace.20 The UN Charter was written as a lesson of World War 1 and

2, affirmed in the preamble of the Charter, ‘…to save succeeding generations from the scourge

of war’21. The core rule pertaining to the use of force also described as ‘the corner stone of the

Charter system,’22 states that, ‘All members shall refrain in their international relations from

the threat or use of force against territorial integrity or political independence of any state or in

any other manner inconsistent with the purposes of the UN.’23 In order to interpret the intended

meaning of article 2(4) the threat or use of force, territorial integrity and political independence

as well as the purposes of the United Nations must be examined in detail.

18 J. L. Brierly, The Law of Nations: An Introduction to the International Law of Peace (Sir Humphrey Waldock ed, 6th edn, Oxford: Clarendon Press 1963) 408. 19 Foreword and Afterward by John Temple Swing in Louis Henkin et al (eds), Right v Might: International Law and the Use of Force (2nd edn, Council on Foreign Relations Press 1989). 20 UN Charter (24 October 1945) 1 UNTS XVI art 1(1). 21 Preamble of the UN Charter (24 October 1945) 1 UNTS XVI. 22 J. L Brierly, The Law of Nations: An Introduction to the International Law of Peace (Waldock ed, 6th edn 1963) 414. 23 UN Charter (24 October 1945) 1 UNTS XVI art 2(4).


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The Charter in its wordings uses the term “force” as opposed to “war”, which circumscribes a

broader range of conduct and does not limit a state to making a declaration of war for it to be

within breach of the Charter. Dinstein argues that, ‘When studied in context, the term “force”

in article 2(4) must denote armed or military force. The moot point thus is, whether the

provision envisages other uses of force such as economic sanctions in addition to armed force.

Psychological or economic pressure does not come within the purview of the article, unless

coupled with the use or at least threat of use of force.’24 During negotiations on the formation

of the UN the bid to include economic aggression was rejected with the view that states were

generally free to choose their trading partners and refusal to trade with another state should not

be a violation of international law. 25

General Assembly (GA) resolutions are not legally binding but are still very persuasive. This

is due to the fact that they represent a consensus of member states’ opinion on the way in which

an article should be interpreted. In the GA’s resolution 262526, it interpreted article 2(7), ‘the

duty not to interfere in matters within domestic jurisdiction of any state,’27; which is the

principle of non-intervention; to mean ‘economic, political or any other type of measures to

coerce another state in order to obtain from it the subordination of the exercise of its sovereign

rights or to secure advantages of any kind’28. Thus suggesting the UN would not intervene in

matters not regulated by international law. Nonetheless the same resolution set out that, the

most blatant use of force is an invasion or attack by the armed forces of a state on the territory

of another state29, which includes military occupation and any attempt to forcibly annex

territory. In Nicaragua v USA30, the International Court of Justice (ICJ) held that the economic

24 Yoram Dinstein, War, Aggression and Self-Defence (5th edn, Cambridge University Press 2011). 25 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 338. 26 United Nations General Assembly (UNGA) Resolution 2625 (XXV) 24 October 1970 UN Doc A/Res/25/2625 (1970). 27 UN Charter (24 October 1945) 1 UNTS XVI art 2(7). 28 UNGA Resolution 2625 (XXV) 24 October 1970 UN Doc A/Res/25/2625 (1970). 29 Definition of Aggression UNGA Res 3314 (XXIX), UN GAOR, 29th sess (1974) art 3. 30 Nicaragua v USA [1986] ICJ 14.


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sanctions imposed by the USA on Nicaragua did not constitute to breach of customary law on

non-intervention. Thus a state could be in breach of the prohibition on the use of force even

though the territorial sovereignty of another state is not breached. The general view is therefore

that Article 2(4) does not include situations beyond use of armed force.

Not only is the use of force prohibited, but also the threat of use of force suggesting the drafters

were ardent on making the rule on prohibition as comprehensive as possible. A “threat”

involves a communicated hostile determination or intention. This communication may be

expressed or implied. The existence of a threat must be determined on the basis of whether

there are reasonable grounds for such a perception.31The ICJ answered the question of what

constitutes as a threat of use of force by looking at the relationship between the threat and use

of force in its advisory opinion on the Legality of Threat or Use of Nuclear Weapons. It

concluded that, ‘the notions of threat and use of force under article 2(4) stand together in the

sense that, if the use of force in itself is illegal, the threat to use of force will likewise be

illegal.’32 Additionally, there is no requirement under international law that a threatening state

must be able to deliver in its threat before it can be unlawful. The lawfulness of a threat wholly

lies on the lawfulness of the use of force in its self.

The interpretation of the phrase ‘territorial integrity and political independence’33 is one of the

most controversial. The narrow view implies that unlawful force consists of any use of force

resulting in the loss or permanent occupation of the territory, compromises the state’s ability

to make independent decisions and is contrary to the purposes of the UN.34 This was

demonstrated by Israel at Entebbe airport in 1976. Israel’s actions were not to compromise the

territorial integrity or political independence of Uganda but to rescue nationals. The broad

31Geir Ulfstein, ‘Legality of the NATO Bombing in Libya’ (2013) 62 ICQL. 32 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226. 33 UN Charter (24 October 1945) 1 UNTS XVI art 2(4). 34Anthony D’Amato, International law: Process and Prospect (Transnational law Publishers 1987) 58-59.


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interpretation however, rejects this stance and only allows use of force permitted by the

Charter.35 The argument is that the permissive view confined to only to situations affecting

territorial integrity and political independence, will give rise to a lacuna.

Lastly force may not be used in any manner inconsistent with the purposes of the UN which

include the maintenance of international peace and security, the development of friendly

relations and international cooperation.36 This could be said to imply that force should be used

to up hold human rights and prevent humanitarian tragedies. The contention with this argument

is that it presents an opportunity for self-serving states to abuse this right claiming to act on

behalf of humanity and use it as a pretext for interfering with internal affairs of other states.37

Although the UN does not evidently prohibit actions which are inconsistent with the purposes

of the UN, it does not mean that such actions would be lawful. Sir Fitzmaurice found this to be

a logical fallacy stating that, ‘this is rather like arguing that, because it is one of the purposes

of English law that people should receive their due legal rights, they are therefore entitled to

assert those rights by force.’38

35 Julius Stone, Aggression and World Order: A Critique of the United Nations Theories of Aggression (University of California Press 1958) 43. 36 UN Charter (24 October 1945) 1 UNTS XVI art 1. 37 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 362. 38 Sir Gerald Fitzmaurice restated in Geoffrey Martson, ‘Armed intervention in the 1956 Suez Canal crisis: The legal advice tendered to the British Government’ (1988) 37 ICQL 1.


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3. Exceptions to the Rule.

The rule on the prohibition of the use of force is not absolute in its entirety. Its exceptions

include self-defence39 and authorisation by the UNSC40. The ICJ in Nicaragua v USA41,

reiterated these exceptions and acknowledged article 2(4) as embodying a customary rule in

international law making it applicable to all states.42 This chapter will discuss each exception

in detail critically analysing the law that regulates them, their interpretations and developments.

3.1 Self-defence.

The concept of self-defence was first addressed in the Caroline43 dispute of 1837, which set

out the customary rules of self-defence. Britain claimed to act in self-defence responding to the

impending threat of an armed rebellion. In the diplomatic correspondence between the US

secretary of state at the time, Daniel Webster, and the British officials, Webster contended that

Britain had to show, ‘a necessity of self-defence, instant, overwhelming leaving no choice of

means and no moment for deliberation’44. Additionally, the force used must be proportionate

to the threat encountered and not, ‘unreasonable or excessive; since the act justified by the

necessity of self-defence must be limited by that necessity and kept clearly within it’45. This

statement effectively laid the foundation of the principles of self-defence under customary

international law introducing the twin requirements of necessity and proportionality.46 These

entail that the state cannot result to use force if there are other means of resolving a situation

and must do no more that is required to defend themselves.

39 UN Charter (24 October 1945) 1 UNTS XVI art 51. 40 UN Charter (24 October 1945) 1 UNTS XVI ch 7. 41 [1986] I.C.J. 14. 42 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgement, ICJ Rep [1986]14, para 188. 43 Caroline case 29 BSFP 1137-8 (1837) 44 Letter from Daniel Webster to Lord Ashburton (27 July 1842) < http://avalon.law.yale.edu/19th_century/br-1842d.asp> accessed 3 December 2015. 45 Ibid. 46 Gideon boas, Public International Law: Contemporary Principles and Perspectives (Edward Elgar Publishing 2012) 327.

http://avalon.law.yale.edu/19th_century/br-1842d.asp

http://avalon.law.yale.edu/19th_century/br-1842d.asp


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Under treaty law self-defence is governed by article 51 of the Charter which states;

Nothing in the present Charter shall impair the inherent right of an individual or

collective self-defence if an armed attack occurs against a member of the United

Nations, until the Security Council has taken measures necessary to maintain

international peace and security. Measures taken by members in the exercise of this

right shall be immediately reported to the Security Council and shall not in any way

affect the authority and responsibility of the Security Council under the present

Charter to take at any time such action as it deems necessary in order to maintain

or restore international peace and security.47

According to the provision, states can defend themselves individually or collectively if they

have suffered an armed attack. Collective self-defence occurs when one or more states use

force in order to defend another state from an armed attack. It normally transpires in the context

of a formal alliance created for the purpose of mutual protection. The terminology in article 51

is restrictive from article 2(4) as it is specific to an armed attack in contrast to the threat or use

of force in article 2(4). The Charter does not define the term armed attack but it is generally

believed to be, an attack by the regular forces of a state on the territory of another by land, sea

or airspace.48 This probes areas of contention such as, whether an armed attack can only be

levelled by the regular forces of a state, if such an attack must be made on the actual territory

of the state being threatened and if self-defence may only be engaged once an armed attack is

underway. Tom Frank describes article 51 as an ‘idiot rule’ if taken literally as it can only be

applied by ‘idiots’, given that the only determination that needs to be made is whether, in fact,

an armed attack has occurred.49 It is therefore stipulated by Jan Klabbers, that article 51 cannot

mean what it says, and does not say what it means. Thus pointing to the customary right of

47 UN Charter (24 October 1945) 1 UNTS XVI art 51. 48 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 350. 49 Thomas M. Franck, The power of legitimacy among Nations (Oxford University Press 1990) 75-77.


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self-defence which is broader than the right formulated in article 51.50 Proposing that article 51

must be interpreted in conjunction with customary law to bring it to its full potential.

The use of the phrase “inherent right” is an implication that customary law and previous state

practice are relevant considerations and the treaty provision is not the only source of the

principle. A view supported by the ICJ in Nicaragua51 in their statement that, ‘article 51 is only

meaningful on the basis that there is a natural or inherent right of self-defence; and it is hard to

see how this can be other than that of a customary nature, even in its present content, it has

been confirmed and influenced by the Charter’.52 Although the Charter wording is strictly

conditional because states only have the right to self-defence once an armed attack has

occurred, it does not mean that states have to wait until they have been attacked to respond.

The right is always limited to the twin principles of proportionality and necessity established

by customary law. Hence precluding that the concepts of proportionality and necessity allow

the defensive state to deal only with an imminent and immediate threat. Therefore the UN

Charter does not provide for anticipatory self-defence rather, it originates from customary law.

Even so the UNSC tacitly endorsed it in a 2001 resolution mandating states to, ‘take necessary

steps to prevent the commission of terrorist acts including by provision of early warning to

other states through exchange of information’53. This was to ensure that article 51 was at par

with contemporary developments such as terrorism.

Another requirement under article 51 is that an act of self-defence must be immediately

reported to the UNSC. This requirement was set so that the international community can assess

whether an armed attack has indeed occurred and that the actions taken were necessary and

50 Jan Klabbers, International Law (Cambridge University Press 2013) 193. 51 [1986] I.C.J. 14. 52 Gideon boas, Public International Law: Contemporary Principles and Perspectives (Edward Elgar Publishing 2012) 328. 53 United Nations Security Council (UNSC) Resolution 1373 (2001) 28 September 2001 UN Doc S/RES/1373 (2001).


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proportionate. This provision is unique to treaty law as it was not a requirement in customary

law. It could be said that article 51 aims to find a balance between collective security and

individual or collective self-defence. Therefore, a right which was expected to exist only until

such a time when the UNSC was able to take measures necessary to restore or maintain

international peace and security. It ensures the protection of the Council’s authority under

chapter IIV by granting it monopoly over the use of force in international relations regardless

of the measures taken by the victim state or collective states. Legally however, the state is

allowed to continue using force in self-defence or collective self-defence, until it can be shown

that the measures taken by the UNSC are effective54 and notifying the UNSC does not abrogate

this right.

With regards to collective self-defence, an assisting state or a coalition of states cannot

legitimately decide when to intervene or repel an armed attack. The ICJ emphasized that,

‘There is no rule permitting the exercise of collective self-defence in the absence of a request

by the state which regards itself as the victim of an armed attack.’55 Therefore collective self-

defence must at the request of the victim state, with all the other requirements of article 51

satisfied. Dixon has the opinion that the safest but least satisfactory conclusion is that, the

precise ambit of the right to self-defence is open to debate.56 Article 51 opens a possibility that

there is a difference between an armed attack and the use of force. It proposes that there may

be uses of force that violate the prohibition of the use of force, but do not rise to the level of

invoking the right to self-defence. The underlying principles of proportionality, necessity and

imminency are reverberated in the Oil Platforms57 and Corfu Channel58 cases where the ICJ

found that, had the right of self-defence been available, the claimed responses of self-defence

54 Anthony Aust, Handbook of International Law (2nd edn, Cambridge University Press 2010) 211. 55 Nicaragua v USA [1986] ICJ 14, 199. 56 Martin Dixon, Textbook on International Law (7th edn, Oxford University Press) 330. 57 Oil platforms case (Islamic Republic of Iran v USA) [2003] ICJ Reports 161. 58 Corfu Channel (United Kingdom v Albania) (judgement) [1949] ICJ Reports.


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would have been held to be disproportionate. An approach reinforced in the Courts advisory

opinion on the threat or use of nuclear weapons.59

3.2 United Nations Security Council Authorisation.

The Charter confers upon the UNSC the ‘primary responsibility for the maintenance of

international peace and security’60 and ‘to that end, take effective collective measures for the

prevention and removal of threats to the peace and suppression of acts of aggression or other

breaches of peace’61. Chapter VII of the UN Charter through article 39, bestows upon the

Council the power to ‘determine the existence of any threat or breach of peace or act of

aggression and make recommendations, or decide what measures shall be taken in accordance

with articles 41 and 42 to maintain and restore international peace and security’62. The

prohibition on the use of force is subject to this unique authority of the UNSC which allows it

to use force as a last resort to maintain or restore international peace and security. It is upon

the Council to define what a threat or the breach of peace is because it is not defined in the

Charter. Article 39 legally requires the UNSC to make a determination clearly indicating the

nature of the situation by adopting a resolution. This ensures that the crisis is an international

one and assures the world that it is not meddling with domestic affairs of the state63, thus within

the principle of non-intervention. Only once a breach or threat of peace and act of aggression

are determined, can the UNSC commence collective security measures.

Article 41 confers upon the UNSC power to use non-forcible measures, usually in the form of

economic sanctions, to maintain or restore peace. These measures are not designed to adversely

affect the general population, but rather to compel the ruling elite of a state to comply with the

demands of the international community. If the council imposes article 41 it must first

59 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226. 60 UN Charter (24 October 1945) 1 UNTS XVI art 24. 61 UN Charter (24 October 1945) 1 UNTS XVI art 1 (1). 62 UN Charter (24 October 1945) 1 UNTS XVI art 39. 63 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 377.


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determine that the sanctions imposed have proved unsatisfactory before article 42 is imposed.

Alternatively it may simply invoke article 42 if it believes that article 41 will be inevitably

inadequate. Article 42 has been described as ‘the heart of the collective security system’64. This

provision gives the council the power to authorise military action as ‘it may take action by air,

sea or land forces as may be necessary to maintain or restore international peace and security’65.

The measures passed to counter a threat may only be for the purpose of maintaining

international peace and security only and not for punishment or retaliation unless the

connection between the action and measures to maintain peace and security can be

articulated.66

Although the UNSC is allowed to authorise the use force as a last resort, the process of getting

authorisation and effecting article 42 measures is subject to different factors, most importantly

international politics and the veto power. Furthermore the UNSC does not have its own military

force and relies on the willingness of member states to provide the necessary resources if and

when it needs to act. Article 43 stipulates;

All members of the United Nations, in order to contribute to the maintenance of

international peace and security, undertake to make available to the Security

Council, on its call and in accordance with a special agreement or agreements,

armed forces, assistance and facilities, including rights of passage, necessary for

the purpose of maintaining international peace and security.67

The above provision was envisaged to be the source of military forces for the UNSC for the

purposes of collective security. The San Francisco negotiations where the UN was being

established, encountered several problems which prevented article 43 from being realised.

64 Martin Dixon, Textbook on International Law (7th edn, Oxford University Press 2013) 344. 65 UN Charter (24 October 1945) 1 UNTS XVI art 42. 66 JMO Lecture by Michael Schmitt, ‘International Law and the Use of Force (The Jus ad Bellum)’ (Naval War College 1 April 2014) < https://www.youtube.com/watch?v=fcGfvWSXEHA> accessed 4 December 2015. 67 UN Charter (24 October 1945) 1 UNTS XVI art 43.

https://www.youtube.com/watch?v=fcGfvWSXEHA


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States found that approval of their domestic legislature before deploying troops overseas was

an essential factor as well as a chain of command because they could not agree on who would

command said troops once deployed.68 Technically, the UNSC would not be able to authorise

the use of force under article 43 due to the states failing to come to an agreement. However the

UNSC approves military action by authorising ‘able and willing states to restore international

peace and security,’69 rather than enforcing article 43, which is unenforceable under the

circumstances. Authorising states to take military action may appear no different than the

UNSC authorising use of its own forces as visualised under article 43. In reality the difference

is that, the UNSC may only recommend a state to take necessary action rather than an oblige

them to do so, as compared to its own forces, where it could compel them to take specific action

under article 42. States respond if they are willing and able to do so and not because they are

obligated. Ige F. Dekker found that a Dutch report noted that, the UN has in the past been

confronted with problems, as states were unwilling to provide the military resources in

sufficient quantities, consequently limiting its capacity to initiate or carry out some of its

missions.70 Although all members are obliged to accept and carry out decisions of the UNSC

under article 2571, the military forces provided are under the command of the providing state

or regional system and not of the UNSC regardless of its authorisation. The Council imposed

its powers under chapter VII following Iraq’s invasion of Kuwait72 following the chapter VII

criteria through articles 39, 41 and eventually 42 as a last resort. It also exercised these powers

by authorising the North Atlantic Treaty Organisation (NATO), ‘to take all means necessary

to implement the Bosnian Peace Plan’73.

68 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014)392. 69 UNSC Resolution 678 (1990) 29 November 1990 UN Doc S/RES/0678 (1990). 70 I. F. Dekker, 'Illegality and Legitimacy of Humanitarian Intervention: Synopsis Of and Comments on A Dutch Report' (2001) 6 Journal of Conflict and Security Law. 71 UN Charter (24 October 1945) 1 UNTS XVI art 25. 72 UNSC Resolution 678 (1990) 29 November 1990 UN Doc S/RES/0678 (1990). 73 UNSC Resolution 1264 (1999) 15 September 1999 UN Doc S/RES/1264 (1999).


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The veto power has led to situations where the Council would or could not take action even

where it was deemed appropriate. The Rwandan genocide was an instance where the UNSC

should have intervened but did not though genocidal violence was imminent. Dixon points out

that there has been ‘a sharp reminder of the reality of international politics provided by the UN

response to the Syrian crisis in 2012’.74 A draft resolution authorising action under chapter VII

was vetoed three times by Russia and China which shows that the Council is limited in its

authority. Moreover the UNSC is not obliged to make a determination under article 39, which

questions whether the autonomous nature of the UNSC is a positive measure as such.

Intrinsically, UNSC authority could be said to be greatly undermined with regards to its main

purpose of upholding peace and security. The inability to act in situations where it is under

pressure from the international community prompts unilateral action by other states or

organisations such as NATO in Kosovo or ECOWAS in Sierra Leone on the basis of

humanitarian intervention.

The Council’s authority appears to be an underlying basis of the exceptions to the rule on the

prohibition to the use of force. The law on self-defence and collective self-defence require the

attacked state claiming self-defence and the intervening state on behalf of collective self-

defence, to report their actions to the UNSC, that it may then ‘take measures necessary to

restore or maintain international peace and security’75. Concurrently the other exception is by

way of UNSC authorisation where the Council may use force as a last resort to maintain or

restore peace and security. The above evaluation stipulates that although the Council may seem

to have overall authority, there are ambiguities which have led to the concepts of intervention

74 Martin Dixon, Textbook on International Law (7th edn, Oxford University Press 2013) 343. 75 UN Charter (24 October 1945) 1 UNTS XVI art 51.


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or use of force without UNSC authorisation such as humanitarian intervention and

responsibility to protect as discussed in the chapters below.


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4. Humanitarian Intervention.

4.1 Defining Humanitarian Intervention.

The inability of the UNSC to intervene in some situations has led to other states or regional

organisations intervening in civil wars or atrocities on the basis of necessity for humanitarian

reasons. The principle of humanitarian intervention has proved to be a contentious area of

discussion on the balance of legality and morality. It has no standard definition but assumes

the context of its analysis, either in law, ethics or politics. In the legal context, Stowell defines

humanitarian intervention as, ‘The reliance upon force for the justifiable purpose of protecting

the inhabitants of another state from treatment which is so arbitrary and persistently abusive,

as to exceed the limits of that authority, within which the sovereign is presumed to act with

reason and justice.’76 Another permissive definition would be, ‘The use of force by one state

in the territory of another, to protect persons who are in imminent danger of death or ,grave

injury, when the state in whose territory they are is unwilling or unable to protect them,’77 by

Malvina Halberstam. It is important to note that, though not identical, the definitions above

provide four main aspects in relation to humanitarian intervention. These include, use of

military power, human rights violations, sovereignty and examination of the UN Charter with

regards to the concept of humanitarian intervention.

L. C. Green has the view that, the concept of intervention on humanitarian grounds could be

dated as far back as 1625 when Grotius asserted that, ‘The right to make war may be conceded

against a king who openly shows himself the enemy of the whole people.’78 This affirms the

notion to intervene regardless of sovereignty in cases that concern atrocities against humanity.

76 L. C. Green, ‘Enforcement of International Humanitarian Law and Threats to National Sovereignty’ (2003) 8 Journal of Conflict and Security Law. 77 Malvina Halberstam, ‘The Legality of Humanitarian Intervention,’ (1995) 1 International and Comparative Law Journal. 78 L. C. Green, 'Enforcement of International Humanitarian Law and Threats to National Sovereignty' (2003) 8 Journal of Conflict and Security Law.


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Brownlie however stated that this doctrine appeared as a ‘cloak for episodes of

imperialism’79and an opportunity for the powerful countries to fix a situation militarily. Even

so humanitarian intervention has been used to justify the use of force without UNSC

authorisation in past cases. Evidently, there is no general consensus on the doctrine and there

are divergent views on its acceptance. Thus argued as an emerging exception to the rule on

prohibition of the use of force.

4.2 Legality and legitimacy of Humanitarian Intervention.

Albeit the UN Charter does not recognise this doctrine, it does not however affect the reality

that it continues to take place and seems set in state practice.80 The NATO intervention in

Kosovo without UNSC authorisation due to Russia’s threat to veto, curbed the UNSC from

acting on a situation where appropriate action was needed. NATO claimed it took humanitarian

intervention to ensure Yugoslavia complied with UNSC resolutions. This claim was rejected

on the basis that, the UN Charter does not empower any organisation to use force in support of

UNSC mandates without its authority. Professor Bruno Simma pointed out that, although

NATO’s actions breached the UN Charter, ‘only a thin red line separates NATO’s action in

Kosovo from international legality’.81 He went on to add,

The Alliance made every effort to get as close to legality as possible by, first

following the thrust of, and linking its efforts to, the Council resolutions which did

exist, and, second, characterizing its action as an urgent measure to avert an even

greater humanitarian catastrophe in Kosovo, taken in a state of humanitarian

necessity.82

79 Ian Brownlie, Principles of Public International Law (7th edn, Oxford University Press 2008) 742. 80 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 405. 81 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 407. 82 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 407.


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In his opinion, while NATO’s intervention was illegal for lack of UNSC authorisation, it was

legitimate for the purposes of humanitarian intervention. Humanitarian intervention, as a

doctrine of international law, could therefore be looked at as a struggle between law and

legitimacy. The law is said to exist to serve a social need; but precisely for that reason it can

only do so through and within the limits of its own discipline. Otherwise, it is not a legal service

that could be rendered. Whereas its legitimacy is drawn from the fact that the use of force

would serve to enforce a fundamental international norm.83

Professor Antonio Cassese rejected Simma’s opinion that only a thin red line separated the

NATO action from legality. Instead he concluded that there was no small breach of the UN

Charter.84 The principle legal argument against humanitarian intervention was that of

sovereignty of a state and the concept of non-intervention enshrined in the principles of

international law. The UN Charter advocates for the independence of authority of a state within

its own domestic jurisdiction85, without prejudice to enforce measures under Chapter VII.86

This translates to states autonomy in their domestic affairs, which can only be breached by

authority of the UNSC after an evaluation that there is threat to peace, breach of peace and acts

of aggression87. Intervention, even on humanitarian grounds, is maintained to be against the

sovereignty of the target state.

More often than not, humanitarian intervention is never the sole reason of taking military

action. The aim of the intervening states can never be fully transparent because powerful and

able states may intervene in conflicts in their own regions to promote their own agendas.

Carsten Stahn criticises former US Legal Advisor Harold Koh’s reference to intervening as

83 Gideon Boas, Public International Law: Contemporary Principles and Perspectives (Edward Elgar Publishing 2012) 125. 84 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 407. 85UN Charter (24 October 1945) 1 UNTS XVI art 2(7). 86 UN Charter (24 October 1945) 1 UNTS XVI art 2(7). 87 UN Charter (24 October 1945) 1 UNTS XVI art 2(7).


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‘ambulance drivers allowed to cross red lights’88. He has the opinion that, ‘The comparison is

shaky and presents intervention as a “clean” and “neutral” recipe that can be used to address

the underlying dilemmas of conflict. This premise is questionable. Intervention is not like

targeted medical surgery and intervener are typically not simply “neutral” and “benevolent”

humanitarians.’89 As seen in Kosovo, the authenticity that the action was as a result of

humanitarian purposes, was considerably challenged. This was due to the fact that, prior to the

invasion, threats of force were directly linked to a political agenda. Any legal recognition of

humanitarian intervention as a right may be extensively open to abuse.

It may also be particularly difficult for a new legal basis for humanitarian intervention to

emerge through customary international law. Although the world is united in condemnation of

human atrocities and the need to intervene in cases such as Syria, when and if an invasion

occurs without UNSC authorisation, intervening parties until recently, hardly ever used

humanitarian intervention as a motive. This repudiates any evidence of changing opinio juris90.

For customary law to be binding there must be two concurrent elements. There must be

widespread practice of the law and states must believe they are legally bound to follow said

practice. Although there may be some practice of humanitarian intervention, states do not

believe they are legally bound to follow it as they do not rely on it to justify their motives.

Tanzania used self-defence in its 1979 invasion of Uganda and overthrowing the regime of Idi

Amin, which was responsible for humanitarian outrages and murders of many Ugandans.

Consecutively, Vietnam was slated for its use of force in Kampuchea while the atrocities of the

Pol Pot government were condemned. While there has been some intervention, there has also

been instances of lack of intervention by states. This indicates the inconsistency in state practice

88 Carsten Stahn, 'Between Law-Breaking And Law-Making: Syria, Humanitarian Intervention And 'What The Law Ought To Be'' (2013) 19 Journal of Conflict and Security Law. 89 Carsten Stahn, 'Between Law-Breaking And Law-Making: Syria, Humanitarian Intervention And 'What The Law Ought To Be'' (2013) 19 Journal of Conflict and Security Law. 90 Subjective obligation; a sense on behalf of a state that it is bound by the law in question.


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in cases such Sudan, Rwanda and; until very recently; Syria, which are all examples of very

serious and widespread violations of human rights.

Subsequently, if left to states to intervene when and as they see fit, there is a risk of floodgates

opening. There would be lack of accountability in military action. It would ultimately alter the

stability from a centralised enforcement system; which the UN represents; to a decentralized

system, where nations become arbiters over the legality of their claims to intervention. Anthea

Roberts shares in this opinion and states that, ‘when states break the law on the use of force,

they are often not at all subjected to condemnation of penalties, which results into lack of

accountability’91. The intervening state would have to decide for itself that human suffering of

another state has reached a level that necessitates intervention.

The UNSC gives a general consensus of legitimacy when it comes to use of force as opposed

to the unilateral use of force by states or regional organisations. It is contended to have an

objective view of international related situations because it is the platform in which, the nations

of the world direct their views and opinions. If left to the states to decide there is bound to be

subjectivity as argued above, intervening states may not always have humanitarian courses as

the sole purpose of invasion. Least to say, the cost of humanitarian intervention is always

considerable, bringing to moot whether the substantial collateral damage is worthwhile. This

would be a question better suited for an international organisation such as the UNSC, to ponder

upon and make a decision rather than the intervening states.

Nevertheless, even in its inconsistency in decision making, Inger Osterdahl argues that the

UNSC still makes law and its powers supreme.92 Its powers to determine and give authority

are unfettered and cannot be reviewed by another body. It became challenging to contain

91 Carsten Stahn, 'Between Law-Breaking And Law-Making: Syria, Humanitarian Intervention And 'What The Law Ought To Be'' (2013) 19 Journal of Conflict and Security Law. 92 Inger Osterdahl, 'The Exception as the Rule: Law-making On Force and Human Rights by the UN Security Council' (2005) 10 Journal of Conflict and Security Law. Exception to the rule.


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humanitarian intervention within the framework of the UNSC once it had made it legitimate

through its own decisions on the matter. Although the UNSC has tried not to establish

precedent by evaluating the situations brought forward on a case by case basis, by

distinguishing them in order not to oblige itself legally or morally to act consistently. It proved

difficult to argue against the use of military force to alleviate the suffering of people without

UNSC mandate, just because the council could not agree, if in the past the council has used the

same efforts to stop human suffering. Additionally, it could be argued the UNSC, helped tip

the balance in favour of humanitarian intervention even outside the UN framework.93 Thus

making its grounding in international law still a moot point. For instance after NATO

intervention, the UN set up a post conflict administration in Kosovo; UN Mission in Kosovo

(UNIMK);94 which assisted Kosovo in attaining independence and dealing with the damage

caused by the intrusion. Without the NATO bombing, the UN infrastructure in Kosovo’s

declaration of independence would have been incomprehensible.

Conversely, status quo reflects that there is an emerging view that sovereignty is no longer

absolute. Former UN Secretary General (UNSG), Kofi Annan tempted a view that a balance

exists between sovereignty and an obligation to respect human rights.95 Yet the principle of

non-intervention may still be subject to abuse by oppressive domestic regimes free from fear

of invasion. Authoritarian governments would be able to manipulate domestic policies to

commit meticulous human rights abuses against its political opponents and the civilian

population. For instance, the vile atrocities committed by the Pol Pot led Khmer Rouge regime

in Cambodia and the Idi Amin led government in Uganda against their own people prompts

this line of validation.96 From arguments set out, it could be deduced that the reasoning for and

93 Inger Osterdahl, 'The Exception as the Rule: Law-making On Force and Human Rights by the UN Security Council' (2005) 10 Journal of Conflict and Security Law. 94 Gideon Boas, Public International Law (Edward Elgar 2012) 325. 95 Secretary General (SG) Kofi Annan, ‘In Larger Freedom: Towards Security, Development and Human Rights for All’, UN GAOR. 59th sess., UN Doc. A/59/2005 (21 March 2005) [132]. 96 Ademola Abass, Complete International Law (2nd edn, Oxford University Press 2014) 406.


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against humanitarian intervention as an emerging principle in international law, are equally

substantial. Although the law is not clear cut on this principle due to the struggle between

policy and legality, the inference would be that humanitarian intervention cannot be said to be

unambiguously illegal.97 Regardless of the fact that it is contrary to the UN Charter and in

contradiction with the fundamental principle of state sovereignty, it may nonetheless be

legitimised by the fact that its objective is an equally vital element of international law, the

principle of human rights. Even still, Dixon elucidates that, ‘states appear to value their

independence and political freedom more highly than they prize the protection of human

rights,’98 as harsh as it may seem. The 2001 Report of the International Commission on

Intervention and State Sovereignty (ICISS); an initiative of the Canadian government; was

issued with a view of making humanitarian intervention legally acceptable and compatible with

state sovereignty hence introducing the concept of Responsibility to Protect (R2P)99, discussed

in further detail in chapter 5.

97 Christian Henderson, 'The UK Government’s Legal Opinion on Forcible measures in response to chemical weapons by the Syrian Government’ (2015) 64 International and Comparative Law Quarterly. 98 Martin Dixon, Textbook on International Law (7th edn, Oxford University Press 2013) 338. 99 Carlo Focarelli, ‘The Responsibility To Protect Doctrine and Humanitarian Intervention: Too Many Ambiguities for a Working Doctrine’ (2008) 13 Journal of Conflict and Security Law.


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5. Responsibility to Protect (R2P).

5.1 Brief background and evolution of the Responsibility to Protect.

Responsibility to protect was designed to ameliorate the plight of many innocent civilians

caught up in armed conflict.100 The ultimate issue the International Commission on Intervention

and State Sovereignty (ICISS) faced, was converging the concepts of humanitarian intervention

and sovereignty due to their conflicting definitions in international law. The commission

achieved this by changing the tone and language of the debate, essentially mobilising support

for a more conditional interpretation of sovereignty. Hence sovereignty to be interpreted as

responsibility as opposed to control. The definition found in the ICISS report has been modified

overtime through key documents that have since been released on R2P. For instance the UN’s

High Level Panel on Threats, Challenges and Change recognised R2P as an,

Emerging norm that there is a collective international responsibility to protect,

exercisable by the security council authorising military intervention as a last resort,

in the event of genocide and other large scale killing, ethnic cleansing or serious

violations of humanitarian law which sovereign governments have proved

powerless or unwilling to prevent.101

In a further definition, the World Summit Outcome Document (WSOD)102 endorsed R2P

stating that,

Each individual state has the responsibility to protect its populations from

genocide, war crimes, ethnic cleansing and crimes against humanity. The

international community, through the United Nations, also has the responsibility to

100 Lecture by Jennifer Welsh, ‘The Evolution of the Responsibility of Protect: Securing Individuals in a World of States’ (Centre for International Governance Innovation 30 September 2013) <https://www.youtube.com/watch?v=P3WJZND3z8M> accessed 3 December 2015. 101 Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility,’ UN Doc. A59/565, 2 December 2004, para 203. 102 2005 World Summit Outcome Document UN Doc. A/60/L.1.

https://www.youtube.com/watch?v=P3WJZND3z8M


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use appropriate diplomatic, humanitarian and other peaceful 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 take collective action, in a timely and decisive manner,

through the Security Council, in accordance with the Charter, including Chapter

VII, on a case-by-case basis and in cooperation with relevant regional organizations

as appropriate, should peaceful means be inadequate and national authorities

manifestly fail to protect their populations from genocide, war crimes, ethnic

cleansing and crimes against humanity. 103

This view of R2P was reaffirmed by the UNSC on the subject of protecting civilians in armed

conflict104 and drawn on by UNSG Ban Ki-Moon in his 2009 report where he sets out his three

pillar strategy105, the responsibility of each state to protect its people, the responsibility of the

international community to support a particular state in exercising its responsibility to protect

its people and finally, in cases where a state fails in its duty, the responsibility of the

international community to take diplomatic, humanitarian action or other means to stop these

violations.106 This doctrine was developed to champion a preventive rather than reactive

strategy as that of humanitarian intervention. While originally R2P was a rather broad concept,

the WSOD restricted it to an instrument to prevent the most egregious crimes of genocide, war

crimes, ethnic cleansing and crimes against humanity. It thereby established a close link to

international criminal law inferring some sort of legitimacy to international law. The definition

proposed by the WSOD seems to suggest a positive responsibility to protect but not a positive

103 2005 World Summit Outcome Document UN Doc. A/60/L.1, para 138-139. 104 UNSC Resolution 1674 (2006) 28 April 2006 UN Doc S/RES/1674 (2006). 105 Report of the Secretary General, ‘Implementing the responsibility to protect,’ UN Doc A/63/677, 12 January 2009. 106 Bruno Pommier, ‘The use of force to protect civilians and humanitarian action: The case of Libya and beyond’ (2011) 1063 International Review of the Red Cross.


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responsibility to use force.107 These guidelines were aimed for a tighter and stronger use and

regulation of the use of force under R2P on a case by case standard, as opposed to humanitarian

intervention. Although included in the UNSG’s report in 2005 and the Panel’s report, the

outcome document did not formally attach to the principle of R2P to the strict criteria

developed to regulate military intervention. The criteria included, seriousness of the harm done

to the population; a just cause for intervention; intervention as a last resort; proportionality of

the means used and an assessment of its consequences. It nonetheless does not detract from

their relevance, as shall be discussed below.

5.2 Responsibility to Protect in action.

The Outcome Document alludes the general willingness of states to implement the concept.

Nevertheless, the dearth of state practice and lack of clarity as to what exactly it entails, would

seem to militate against it manifesting into an international norm. Gareth Evans seems to

concur with the statement in his opinion that, ‘R2P as the new norm was unanimously endorsed

in principle by the whole global community in 2005 in the WSOD but has yet to be effectively

implemented in practice and been far from assured’.108 The course of action following the

events in Libya and Cote D’ivoire gave the concept an ‘extraordinary new momentum and

authority’109.The UNSC invoked R2P in response to the Libyan crisis in March 2011 under

resolution 1973110, which was the first mandate by the UNSC for a military intervention, based

on the responsibility to protect against the wishes of a functioning government. Although this

was a positive step towards the development of R2P, the intervention in Libya became about

the proper scope and limits of coercive military action. The legal mandate on the intervention

107 Matthew Kalkman, ‘Responsibility to protect bow without an arrow’ (2009) 75 Cambridge Student Law Review. 108 Lecture by Gareth Evans, ‘Implementing the Responsibility to Protect’ (Australian National University 15 May 2011) <https://www.youtube.com/watch?v=FjgRMKTWWzs > accessed on 4 December 2015 at 4:35. 109 Lecture by Gareth Evans, ‘Implementing the Responsibility to Protect’ (Australian National University 15 May 2011) <https://www.youtube.com/watch?v=FjgRMKTWWzs > accessed on 4 December 2015 at 4.15. 110 UNSC Resolution 1973 (2011) 17 March 2011 UN Doc S/RES/1973 (2011).

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in Libya constituted, ‘to protect civilians and civilian populated areas under threat of attack in

the Libyan Arab Jamahiriya, including Benghazi'111. Subsequently, this intervention came

under severe criticism from the BRICS112 countries for exceeding the narrow civilian

protection mandate. As a result, although at the outset of the intervention there was consensus,

the intervention became highly controversial on the basis of the scope of the legal mandate and

whether it included regime change. It could be argued that enforcing a regime change was

necessary to protect Libyans from future attacks thus removing the greatest threat on the Libyan

civilians; Qaddafi.113 Nevertheless this does not deter from the fact that decisive limits were

placed on military activities through the legal mandate to protect civilians and civilian

populated areas from threat of attack, and not human rights protection in Libya or regime

change.

In the past few years, R2P has been invoked selectively and not always appropriately as noted

by Alex Bellamy who articulates that it has been invoked in the context of certain humanitarian

crises including Darfur and Kenya but ignored in others such as Somalia.114 With NATO taking

a wide interpretation of resolution 1973, R2P poses a risk of “buyer’s remorse”115 from those

who did not oppose the resolution and a repercussion when the next extreme case of R2P arises.

A prime example is the ongoing civil war in Syria which is even worse than that of Libya. In

the case of Syria, there have been three vetoes by Russia and China. The first one in October

2011116, then in February 2012117 and again in July 2012118, showing that the consensus present

in the Council when adopting resolution 1973 was no longer present. The UNSC could not

111 UNSC Resolution 1973 (2011) 17 March 2011 UN Doc S/RES/1973 (2011) para 4. 112 Brazil, Russia, India, China and South Africa. All on the Security Council at the time. 113 Geir Ulfstein, ‘Legality of the NATO Bombing in Libya’ (2013) 62 ICQL. 114 Alex J Bellamy, ‘The Responsibility to Protect – Five Years On’ (2010) 24 Ethics and International Affairs 143-69. 115 A. J. Bellamy, 'Realizing the Responsibility to Protect' (2009) 10 International Studies Perspectives 111-28,112. 116 UNSC 6627th meeting, 4 October 2011, UN Doc S/PV.6627. 117 UNSC 6711th meeting, 4 February 2012, UN Doc S/PV.671. 118 UNSC 6810th meeting, 19 July 2012, UN Doc S/PV.6810.


37

only agree on use of military force or less coercive measures such as sanctions and embargoes

but also mere condemnation of the situation in Syria. Only when the UNSC was confronted

with unequivocal evidence of use of chemical weapons, did consensual action follow,

authorising destruction of the regimes chemical weapons and foreshadowing considerations of

coercive action under chapter VII of the charter, should it not be forthcoming.119 It is important

to note that, the primary norm that triggered the UNSC reaction was the ban on use of chemical

weapons in non-international armed conflict embodied in both international humanitarian and

criminal law.120 Nonetheless, qualifying both as a crime against humanity and a war crime, it

meets the threshold for the trigger of R2P as endorsed in the WSOD but not necessarily as a

basis for intervention on those grounds.

This may indicate a back track to the old debates of humanitarian intervention. David Reiff

went as far as proposing the death of R2P in his article ‘R2P RIP’121. It is nevertheless important

to note that, in its proposal and development, R2P envisioned a broad range of actors,

responsibility, reaction forms and characterised essentially a ‘doctrine of prevention’122. It is

not only limited to military intervention as was humanitarian intervention but an advocate of

preventive measures.

5.3 The future of Responsibility to Protect

Responsibility to protect as a concept, resonates a growing consensus at least on what are clear

R2P cases if not always what to do about them. Eminent examples include Darfur, Eastern

Congo, Sri Lanka, Kenya, Libya, Cote D’ivoire and even Syria. The key strength of R2P is its

consensual support by the international community which constructs a sense of international

119 UNSC Resolution 2118 (2013) 27 September 2013 UN Doc S/RES/2118 (2013). 120 Carsten Stahn, 'Between Law-Breaking And Law-Making: Syria, Humanitarian Intervention And 'What The Law Ought To Be'' (2013) 19 Journal of Conflict and Security Law. 121 David Reiff, ‘R2P R.I.P’ The New York Times (New York, 7 November 2011) <http://www.nytimes.com/2011/11/08/opinion/r2p-rip.html?_r=0> accessed 3 December 2015. 122 Sheri P. Rosenberg, 'Responsibility to Protect: A Framework for Prevention' (2009) 1 Global Responsibility to Protect 442-47, 443.

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legitimacy. According to Adrian, the post-conflict crisis in Libya juxtaposed with the continued

mass violence in Syria, led to proclamation of the death of R2P, ‘revived in Libya, buried in

Syria’.123 Nevertheless this statement fails to recognise the consensual support from Brazil,

Russia, India and China; the very states that criticised the implementation of UN Resolution

1973124 in Libya; in the UN General Assembly dialogue on the R2P.125

Jennifer Welsh, the United Nations Special Adviser on R2P, stated her main goal was to

advance the understanding of “international assistance”, claiming it was the most promising

aspect of R2P.126 She shifted the focus from the extremely controversial military dimension of

pillar III onto the importance of pillar II, the distinction rooted in the tripartite formula set out

by the UNSG in his 2009 report on implementing R2P127. Pillar I set out the protection

responsibilities of states, pillar II was on international assistance and capacity building and

pillar III was about a timely and collective response. The tripartite formula shows that R2P

contains more than one prescription and a breach of one component triggers another resulting

in a wider range of reactors and reaction forms. The WSOD embodied the core tenets of pillar

II stating that the international community would encourage and help states through

international assistance to build the necessary capacity to protect their populations from the

four crimes.128

The international community in pillar II accentuates that the UN does not have to carry the

responsibility alone and there is a wider range of actors, however, more actors project a

123 Adrian Gallagher, ‘The Promise of Pillar II: Analysing international assistance under the Responsibility to Protect’ (2015) 1259 International Affairs. 124 UNSC Resolution 1973 (2011) 17 March 2011 UN Doc S/RES/1973 (2011). 125 2014 UN General Assembly Dialogue on the Responsibility to Protect (transcribed), 8 September 2014. 126 Interview with Jennifer Welsh, ‘R2P is dead, long live R2P: the future of the Responsibility to Protect’ (Stanley Foundation 8 November 2013) < http://www.responsibilitytoprotect.org/index.php/edward-luck/5223-stanleyfoundation-r2p-is-dead-long-live-r2p-interview-with-dr-jennifer-welsh > accessed 6 October 2015. 127 Report of the UN Secretary General, ‘Implementing the Responsibility to Protect’, UN GAOR. 63rd sess., UN Doc A/63/677, (12 January 2009). 128 Adrian Gallagher, ‘The Promise of Pillar II: Analysing international assistance under the Responsibility to Protect’ (2015) 1259 International Affairs.

http://www.responsibilitytoprotect.org/index.php/edward-luck/5223-stanleyfoundation-r2p-is-dead-long-live-r2p-interview-with-dr-jennifer-welsh

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challenge in cooperation. This was demonstrated in the 2013 response in Mali which resulted

to the African Union (AU) stating that, the UN resolution was ‘not in consonance with the spirit

of partnership that the AU and the UN have been striving to promote for many years’.129 Pillar

II also presents different forms of assistance through encouragement, capacity building and

assisting states in times of impending crises. Encouragement involves raising awareness by

reminding states that they have a responsibility to protect and the importance of meeting this

responsibility. Evidenced by the Democratic People’s Republic of Korea (DPRK), public

condemnation acted as ‘a powerful catalyst for deeper international engagement’.130 This

augments the importance of pillar II, that public scrutiny can facilitate progress. In the case of

DPRK it would have been considered under pillar III, because the state had manifestly failed

to protect its population from the four crimes and did not consent to intervention from the

international community.131 Capacity building envisions a case where encouragement would

not work for instance where a state is unable or unwilling thus resulting to a needs assessment

on a case by case basis to mitigate the four crimes. Consequently, strengthening the capacity

of states and incorporating checks and balances to reduce threats of mass violence. Lastly

assisting states in times of impending crises includes expertise in dispute resolution, human

rights monitoring, law enforcement and criminal investigation, protecting refugees and the

internally displaced and protection of civilians in humanitarian emergencies.132

The main controversy with pillar III is that it involves military intervention without the consent

of the state, ultimately breaching the principle of non-intervention. Pillar II is viewed as a

129 Paul D. Williams and Arthur Boutella, ‘Partnership peacekeeping: challenges and opportunities in the United Nations-African Union relationship’, African Affairs 113: 451, 2014, pp. 254-78 at p. 256. 130 Alex J. Bellamy, ‘A chronic protection problem: the DPRK and the responsibility to protect’, International Affairs 91: 2, March 2015, p. 225-44 at p. 244. 131 Adrian Gallagher, ‘The Promise of Pillar II: Analysing international assistance under the Responsibility to Protect’ (2015) 1259 International Affairs 1263. 132 Adrian Gallagher, ‘The Promise of Pillar II: Analysing international assistance under the Responsibility to Protect’ (2015) 1259 International Affairs 1264.


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‘partnership between the international community and the state’,133 therefore consent is granted

by the state for military intervention upholding the concept of sovereignty. The outcome of

Kenya in 2008 seems to be the only really clear and successful example of R2P playing an

important role in stimulating and effecting response, taking a diplomatic rather than a military

solution form.134 In Libya and Cote d’Ivoire, the UN exceeded the mandates and opted for

regime change, in the case of Libya and paved way for the arrest of president Gbagbo, in Cote

d’Ivoire. These developments definitively raised challenges and criticism to R2P but the

concept according to Gareth Evans, ‘is here to stay and has made a difference and will continue

to do so’135. He proposes the development of a set of criteria of legitimacy as distinct from

legality, to tackle the conceptual challenge of R2P.136 This criteria was recommended by the

ICISS, the UN’s High Level Panel on Threats, Challenges and Change report and Kofi Annan

in his own report 2005137. They however have not been formally adopted by the GA or the

UNSC. Nevertheless Gareth believes that the proposed criteria could deal with the familiar

arguments of hypocrisy and double standards in these contexts, through their practical utility

combined with their philosophical pedigree if understood and applied sufficiently. The criteria

precludes an analysis of the seriousness of the risk and whether it would justify the use of

military force. The primary purpose of intervention on the basis of R2P would be to halt or

avert the threat in question. Military intervention would have to be as a last resort after every

non-military option has been explored or a by reasonable judgement that they would not

succeed. Additionally the force used would have to be proportional and minimal, necessary to

133 Report of the UN Secretary General, ‘Implementing the Responsibility to Protect’, UN GAOR. 63rd sess., UN Doc A/63/677, (12 January 2009). 134 Adrian Gallagher, ‘The Promise of Pillar II: Analysing international assistance under the Responsibility to Protect’ (2015) 1259 International Affairs 1265. 135 Lecture by Gareth Evans, ‘The Evolution of the Responsibility to Protect’ (Stanley Foundation 12 January 2012) < https://www.youtube.com/watch?v=SjepYRGoJlY > accessed on 4 December 2015 at 2:00. 136 Lecture by Gareth Evans, ‘Implementing the Responsibility to Protect’ (Australian National University 15 May 2011) <https://www.youtube.com/watch?v=FjgRMKTWWzs > accessed on 4 December 2015 at 4:35. 137 Secretary General (SG) Kofi Annan, ‘In Larger Freedom: Towards Security, Development and Human Rights for All’, UN GAOR. 59th sess., UN Doc. A/59/2005 (21 March 2005).

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41

meet the threat in question. Lastly there has to be a balance of consequences weighing whether

those at risk would largely be better or worse off due to coercive military intervention. This

criteria would facilitate conceptual consensus on what are R2P cases and the most appropriate

ways to deal with them, either by way of prevention or by way of reaction.


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6. Conclusion.

The provisions on the prohibition of the use of force under article 2(4) and its exceptions under

article 51, are seen as the heart of the Charter and some of the most important principles of

contemporary international law. Nonetheless, reality seems to mock them with widespread

warfare.138 There is no explicit permission to use force against humanitarian crises in the

Charter but the Charter framers in developing it, were not immune to human rights

considerations and as a result careful of the phrases used to leave room for interpretation and

development. Views concerning the use of force for purposes other than those of self-defence

or prescription by authority of the UNSC, have gradually evolved in the wake of contemporary

developments.

The crisis over the legitimacy of the UN collective security system rose out of its failure to act

promptly and effectively over humanitarian disasters as well as its failure to agree over

appropriate action in those cases. Hence conveying that it was not the longstanding doctrinal

disagreements that were the problem. For instance in the cases of Iraq, Rwanda and Kosovo,

the issues arose because States could not agree whether Iraq was a threat, what the appropriate

action in Rwanda was and as a result of the threat to veto by Russia in Kosovo. Only recently

did the UNSC finally issue a determination on the situation in Syria through resolution 2249139.

It condemned the terrorist attacks by Daesh, unanimously adopting that the extremist group

constituted an “unprecedented” threat to international security and called upon member states

with the requisite capacity to take “all necessary measures” to prevent and suppress its terrorist

acts on territory under its control in Syria and Iraq. By using “all necessary measures” it implied

the use of force in the language of international law, as established by previous resolutions. It

should be noted that this resolution was not adopted under chapter VII of the Charter and is

138 Oscar Schachter, ‘The right of states to use armed force’ (1984) 1620 Michigan Law Review Association. 139 UNSC Resolution 2249 (2015) 21 November 2015 UN Doc S/RES/2249 (2015).


43

subject to interpretation by states. Consequently, it does not provide a legal basis for the use of

force in Syria but political legitimization for the use of force and may even possibly be

interpreted in line with R2P. These practical and political problems rather than any

disagreement on the law remain the main obstacle to an effective UN collective security

system. Humanitarian intervention and R2P stemmed from this unfeasible nature of the UN

collective security system.

Norms by their very nature are social facts which create zones of what is and is not permissible

with regards to certain behaviour. On a legal assessment humanitarian intervention and R2P do

not qualify as legal concepts of international law. They are two different concepts but coincide

in their rejection of sovereignty as a shield against the principle of non-intervention. One of the

central purposes of contemporary use of force is the protection of individuals’ security. 140

Humanitarian intervention failed in this purpose as it lacked well-founded procedures where

there was an imperative need to use appropriate measures to protect civilians of a state, from

human rights violations. Conversely the ultimate aim of R2P was protection of civilians

through the tripartite formula of responsibility of the state and responsibility of the international

community to assist and responsibility of the international community to respond. Countering

the lack of well-founded procedures and illegality of unilateral humanitarian intervention,

seeking to strengthen collective security rather than undermine it.141 The core elements and

crucial difference between humanitarian intervention and R2P is that, humanitarian

intervention was all about coercive military responses to extreme threat situations while R2P

was more multi-dimensional, incorporating a wider range of actors and responses. This was as

140 Lecture by Jennifer Welsh, ‘The Evolution of the Responsibility of Protect: Securing Individuals in a World of States’ (Centre for International Governance Innovation 30 September 2013) <https://www.youtube.com/watch?v=P3WJZND3z8M> accessed 3 December 2015. 141 Carsten Stahn, ‘Between Law-Breaking and Law-Making: Syria, Humanitarian Intervention and ‘What the Law Ought to be’’ (2013) 19 Journal of Conflict and Security Law.

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44

a result of the presentational shift from the language of the right to intervene to the

responsibility to protect.

With the consistent need to use appropriate measures to protect civilians and as new

international crises emerge, the doctrines of self-defence, humanitarian intervention and R2P

are bound to be refined and applied in different situations. Ultimately the use of force, as

demonstrated by the ongoing situation Syria, is an area of law that needs constant and further

research and is prone to development. Humanitarian intervention and R2P as concepts are open

to controversy and debate as well as evolution in meaning, as they continue to be applied.

Whilst the prohibition to the use of force is likely to be further refined, the likelihood that such

efforts, to completely satisfy the lofty objective of ‘saving generations from the scourge of

war,’142 are very much so still open to debate.

142 Preamble of the UN Charter (24 October 1945) 1 UNTS XVI.


45

7. Bibliography.

7.1 Primary Sources.

7.1.1 Case Law.

1. Caroline case 29 BSFP 1137-8 (1837).

2. Corfu Channel (United Kingdom v Albania) (judgement) [1949] ICJ Reports.

3. Nicaragua v USA 1986 I.C.J. 14.

4. Oil platforms case (Islamic Republic of Iran v USA) [2003] ICJ Reports 161.

5. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep

226.

7.1.2 United Nations Documents.

1. Annan K, ‘In Larger Freedom: Towards Security, Development and Human Rights for

All’, UN GAOR. 59th sess., UN Doc. A/59/2005 (21 March 2005).

2. UN Charter (24 October 1945) 1 UNTS XVI.

3. United Nations General Assembly (UNGA) Resolution 2625 (XXV) 24 October 1970

UN Doc A/Res/25/2625 (1970).

4. Definition of Aggression UNGA Res 3314 (XXIX), UN GAOR, 29th sess (1974).

5. United Nations Security Council (UNSC) Resolution 1373 (2001) 28 September 2001

UN Doc S/RES/1373 (2001).

6. UNSC Resolution 678 (1990) 29 November 1990 UN Doc S/RES/0678 (1990).

7. UNSC Resolution 1264 (1999) 15 September 1999 UN Doc S/RES/1264 (1999).

8. Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change,

‘A More Secure World: Our Shared Responsibility,’ UN Doc. A59/565, 2 December

2004.


46

9. Report of the Secretary General, ‘Implementing the responsibility to protect,’ UN Doc

A/63/677, 12 January 2009.

10. 2005 World Summit Outcome Document UN Doc. A/60/L.1.

11. UNSC Resolution 1674 (2006) 28 April 2006 UN Doc S/RES/1674 (2006).

12. UNSC Resolution 1973 (2011) 17 March 2011 UN Doc S/RES/1973 (2011).

13. UNSC 6627th meeting, 4 October 2011, UN Doc S/PV.6627.

14. UNSC 6711th meeting, 4 February 2012, UN Doc S/PV.671.

15. UNSC 6810th meeting, 19 July 2012, UN Doc S/PV.6810.

16. UNSC Resolution 2118 (2013) 27 September 2013 UN Doc S/RES/2118 (2013).

17. 2014 UN General Assembly Dialogue on the Responsibility to Protect (transcribed), 8

September 2014.

18. UNSC Resolution 2235 (2015) 7 August 2015 UN Doc S/RES/2235 (2015).

19. UNSC Resolution 2249 (2015) 21 November 2015 UN Doc S/RES/2249 (2015).

7.2 Secondary Sources.

7.2.1 Books.

1. Abass A, International Law (2nd edn, Oxford University Press 2014).

2. Aust A, Handbook of International Law (2nd edn, Cambridge University Press 2010).

3. Boas G, Public International Law (Edward Elgar 2012).

4. Brierly L, The Law of Nations: An Introduction to the International Law of Peace (Sir

Humphrey Waldock ed, 6th edn, Oxford: Clarendon Press 1963).

5. Brownlie I, Principles of Public International Law (7th edn, Oxford University Press

2008).

6. D’Amato A, International law: Process and Prospect (Transnational law Publishers

1987).


47

7. Dinstein Y, War, Aggression and Self-Defence (5th edn, Cambridge University Press

2011).

8. Dixon M, Textbook on International Law (7th edn, Oxford University Press 2013).

9. Franck T, The power of legitimacy among Nations (Oxford University Press 1990).

10. Klabbers J, International Law (Cambridge University Press 2013).

11. Mansell W and Openshaw K, International Law: A Critical Introduction (Hart

Publishing 2013).

12. Stone J, Aggression and World Order: A Critique of the United Nations Theories of

Aggression (University of California Press 1958).

13. Swing J in Henkin L et al (eds), Right v Might: International Law and the Use of Force

(Council on Foreign Relations Press 1989).

7.2.2 Journal Articles

1. Bellamy A, ‘The Responsibility to Protect – Five Years On’ (2010) 24 Ethics and

International Affairs.

2. Bellamy A, ‘A chronic protection problem: the DPRK and the responsibility to protect’,

(2015) 91 International Affairs.

3. Dekker I, 'Illegality and Legitimacy of Humanitarian Intervention: Synopsis Of and

Comments on A Dutch Report' (2001) 6 Journal of Conflict and Security Law.

4. Focarelli C, 'The Responsibility To Protect Doctrine And Humanitarian Intervention:

Too Many Ambiguities For A Working Doctrine' (2008) 13 Journal of Conflict and

Security Law.

5. Gallagher A, ‘The Promise of Pillar II: Analysing international assistance under the

Responsibility to Protect’ (2015) 1259 International Affairs.

6. Gray C, ‘A crisis of legitimacy for the UN collective security system?’ (2007) 157

International and Comparative Law Quarterly.


48

7. Green L, 'Enforcement of International Humanitarian Law and Threats to National

Sovereignty' (2003) 8 Journal of Conflict and Security Law.

8. Hannay D, ‘Collective Security and the use of force’ (2005) 367 International

Organisations Law Review.

9. Henderson C, 'The UK Government’s Legal Opinion on Forcible Measures in Response

to the Use of Chemical Weapons by the Syrian government’ (2015) 64 International

and Comparative Law Quarterly.

10. Henkin L, 'Kosovo and the Law of "Humanitarian Intervention"' (1999) 93 The

American Journal of International Law.

11. Kalkman M, ‘Responsibility to protect bow without an arrow’ (2009) 75 Cambridge

Student Law Review.

12. Nardin T, 'From Right to Intervene To Duty to Protect: Michael Walzer on

Humanitarian Intervention' (2013) 24 European Journal of International Law.

13. Ochoa- Ruiz N and Salamanca-Aguado E, ‘Exploring the limits of international law

relating to the use of force in self-defence’ (2005) 499 European Journal of International

Law.

14. Osterdahl I, 'The Exception As The Rule: Lawmaking On Force And Human Rights By

The UN Security Council' (2005) 10 Journal of Conflict and Security Law.

15. Pommier B, ‘The use of force to protect civilians and humanitarian action: The case of

Libya and beyond’ (2011) 1063 International Review of the Red Cross.

16. Rosenberg S, ‘Responsibility to Protect: A Framework for Prevention’ (2009) 1 Global

Responsibility to Protect.

17. Ruys T, 'Of Arms, Funding and "Non-Lethal Assistance"--Issues Surrounding Third-

State Intervention in the Syrian Civil War' (2014) 13 Chinese Journal of International

Law.


49

18. Schachter O, ‘The right of states to use armed force’ (1984) 1620 Michigan Law

Review Association.

19. Stahn C, ‘Between Law-Breaking and Law-Making: Syria, Humanitarian Intervention

And “What The Law Ought To Be”’ (2013) 19 Journal of Conflict and Security Law.

20. Stahn C, ‘Libya, the International Criminal Court and Complementarity’ (2012) 325

Journal of International Criminal Justice.

21. Ulfstein G, ‘Legality of the NATO Bombing in Libya’ (2013) 62 ICQL.

22. Williams P and Boutella A, ‘Partnership peacekeeping: challenges and opportunities in

the United Nations-African Union relationship’, African Affairs.

23. Wills S, 'Military Interventions On Behalf Of Vulnerable Populations: The Legal

Responsibilities of States and International Organizations Engaged In Peace Support

Operations' (2004) 9 Journal of Conflict and Security Law.

7.2.3 Reports

1. Syrian Centre for Policy Research, ‘Syria: Squandering humanity’ (Socioeconomic

Monitoring Report on Syria, May 2014).

7.2.4 Websites and Blogs

1. Evans G, ‘Implementing the Responsibility to Protect’ (Australian National University

15 May 2011) <https://www.youtube.com/watch?v=FjgRMKTWWzs > accessed on 4

December 2015.

2. Evans G, ‘The Evolution of the Responsibility to Protect’ (Stanley Foundation 12

January 2012) < https://www.youtube.com/watch?v=SjepYRGoJlY > accessed on 4

December 2015.


50

3. Global Conflict Tracker, ‘Civil War in Syria’ (Council on Foreign Relations, updated

3 December 2015) <http://www.cfr.org/global/global-conflict-

tracker/p32137#!/?marker=6 > accessed 3 December 2015.

4. Mercy Corps, ‘Quick facts: What you need to know about the Syria crisis’ (Mercy

Corps, updated 7 October 2015) <https://www.mercycorps.org/articles/turkey-iraq-

jordan-lebanon-syria/quick-facts-what-you-need-know-about-syria-crisis> accessed 3

December 2015.

5. Meyer J, ‘Knotted Gun Sculpture’ (The Spot for Politics and Policy, 18 December

2012) <http://blogs.denverpost.com/thespot/2012/12/18/denver-assault-weapons-ban-

books-1989/87342/knotted-gun-sculpture/> accessed 3 December 2015.

6. Norton B, ‘The Shocking Statistics behind Syria’s Humanitarian Crisis’ (Think

Progress, 2 June 2014) <http://thinkprogress.org/world/2014/06/02/3443171/syria-

crisis-stats/> accessed 3 December 2015.

7. Schmitt M, ‘International Law and the Use of Force (The Jus ad Bellum)’ (Naval War

College 1 April 2014) < https://www.youtube.com/watch?v=fcGfvWSXEHA>

accessed 4 December 2015.

8. Welsh J, ‘The Evolution of the Responsibility of Protect: Securing Individuals in a

World of States’ (Centre for International Governance Innovation 30 September 2013)

<https://www.youtube.com/watch?v=P3WJZND3z8M> accessed 3 December 2015.

9. Welsh J, ‘R2P is dead, long live R2P: the future of the Responsibility to Protect’

(Stanley Foundation 8 November 2013) <

http://www.responsibilitytoprotect.org/index.php/edward-luck/5223-

stanleyfoundation-r2p-is-dead-long-live-r2p-interview-with-dr-jennifer-welsh >

accessed 6 October 2015.


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7.2.5 Newspapers

1. Aisch G, Almukhtar S, Keller J and Andrews W, ‘The Scale of the Migrant Crisis, From

160 to millions’ The New York Times ( New York, updated 22 September 2015)

<http://www.nytimes.com/interactive/2015/09/10/world/europe/scale-of-migrant-

crisis-in-

europe.html?action=click&contentCollection=Middle%20East&region=Footer&mod

ule=WhatsNext&version=WhatsNext&contentID=WhatsNext&moduleDetail=undefi

ned&pgtype=Multimedia> accessed 3 December 2015.

2. Reiff D, ‘R2P R.I.P’ The New York Times (New York, 7 November 2011)

<http://www.nytimes.com/2011/11/08/opinion/r2p-rip.html?_r=0> accessed 3

December 2015.

3. Yuhasin A, ‘US General rebrands Isis 'Daesh' after requests from regional partners’ The

Independent (New York, 19 December 2015) <

http://www.theguardian.com/world/2014/dec/19/us-general-rebrands-isis> accessed

10 December 2015.