R2P in the UN 2005 Reform Summit Document

I want to follow up briefly on Kevin’s post earlier re Darfur and responsibility to protect.  Being located in Washington and having a think tank connection – Hoover – as well as a law professor job, I serve on various task forces on international law and foreign policy issues.  I was one of the experts on the Gingrich-Mitchell task force that followed the UN reform process and eventually produced a quite good report on it.  I’ve been on various task forces and public policy panels since that addressed R2P as it came out of the 2005 UN reform.  

What I do not understand is how the UN 2005 final outcome document and its sections on R2P (articles 138-139-140) are supposed to be a genuine advance over the legal situation as it stood at the end of the Kosovo war.  By the end of the Kosovo war, NATO had asserted a right to intervene in Serbia and Kosovo without a Security Council authorization and knowing that, far from one being forthcoming, it would have been vetoed by Russia and possibly China as well. International lawyers find themselves caught in a difficult place, virtuously wanting to intervene, but having a pretty clear understanding that if you take the Charter seriously, you have a legal problem.  So far as I can tell (as someone who does not take the Charter all that seriously), the solution to that problem is to invoke … aspirations.  We will interpret the Charter according to some platonic ideal of what it would protect, if only it were interpreted according to its spirit and, what? The General Will?  I exaggerate, but not by much.  Nato is more than just the United States, and it has the Europeans to serve to channel the General Will that the US will carry out with its warplanes, so, it’s all okay. The words on paper will eventually catch up with the General Will.  

Russia was left fuming at the time, but the attitude among NATO countries was, as I recall – it was an attitude I shared – it’ll get over it and anyway it’s too weak to matter – and hey, it’s got cheap natural gas, let’s build some more pipelines and we’ll get all economically integrated and stuff!!  Putin seems to be thinking at the time – looking backwards – something very much like, “revenge is a dish best served cold, and it’s cold in northern Europe in the winter …”  On this, I’m not even sure I exaggerate – mostly I wonder what on earth the late, great Raymond Aron would have thought. 

A lot of countries, and not just Russia, watched Kosovo very carefully and not with any great enthusiasm for R2P as it generated a lot of enthusiasm in one of those inflationary bubbles that sometimes develop between idealists of the left and right, liberal internationalists and neocons, around issues like this.  As one of the neocons, I was a definite part of the bubble.  Jack Goldsmith, who is a con but not really a neocon, told me at the time that he thought it was all getting way ahead of itself.  So, come UN reform in 2005.  What happens?  Well, language goes into the document recognizing, for the first time officially, R2P.  That’s the good news of Article 138:

Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

But in Article 139, the hedging and hedging-up starts in earnest.  Through the “United Nations” and “through the Security Council” and even a need for the “General Assembly” to involve itself, bearing in mind “principles of the Charter and international law.”

The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, 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. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

I have had many highly skilled international lawyers, in the State Department and elsewhere, over the last four years explain to me how this is not a limitation on what existed as a matter of rudely-established custom at the time of Kosovo.  The reading is that this document acknowledges the existence of R2P, and that is the important, overriding thing – all the rest is essentially commendatory and exhortative as to the presumed, but not definitive, best way of carrying out that fundamental mandate of R2P.  Okay, I understand the argument.  Sort of.

That said, it sure looks like a carefully crafted set of limitations to me, designed by countries very unhappy with what NATO and Kosovo had wrought, taking a general consideration and then putting further specifications – and the specific controlling the general – on it, and requiring that collective action be taken “though the Security Council, in accordance with the Charter, including Chapter VII.”  

I understand how you can construct this language to be non-exclusive and permissive for ventures beyond the Security Council, and I’m certainly happy to interpret to Charter to allow non-SC parties to engage in this kind of use of force.  But I can’t see, as a lawyer, how that’s the best or more obvious reading or one that reflects what the parties who drafted it thought they were doing – having followed the discussions closely at the time, the “parties” thought they were limiting things in exactly the way I’ve just said, not leaving the door open for non-SC uses of force.  

Which raises one of those classic strategic ambiguity questions, indirectly.  I don’t think this was, in the actual negotiations, a strategic ambiguity in the minds of very many parties.  Maybe for the United States and a few other NATO countries.  I think everyone else thought this was quite unambiguous and that it closed the door.  So if NATO or someone walks through the door again in a few years someplace and appeals to this document, I do not think the response will be, “Well, okay, we all understood it was a strategic ambiguity at the time, and we were just kicking the can down the road.” I think an awful lot of states will feel like it was not ambiguous at all, and will find that their champions are Russia, China, and a bevy of rising new powers in an increasingly competitive multipolar world, carrying a strong, resentful sense that the US and NATO understand the Security Council to be absolute law when it goes their way but something else when it doesn’t.  The recent ECJ Kadi ruling – the Security Council doesn’t have the last word on things – provides support to both sides – to Russia and China when they want to go their own way, and to NATO in the idea that SC decisions have to be interpreted according to some higher, or at least other, thing like ‘aspirations’.  

My own response is of course made easier by the fact that I don’t think of international law and the Charter in anything like such binding or reverential terms, and that of course the US and others should consider as a practical matter what to do in Darfur, including the use of force.  (I thought, by the way, Adam Roberts and Dominic Zaum’s recent essay on the Security Council as “selective security” rather than “collective security” to be quite useful [although at $171 for the book!] and anyway, think Michael Glennon is right about ‘desuetude‘.)  I have doubts that it would work effectively, but those are practical military and strategic reasons, including the politics of the use of force outside SC authorization, not any kind of deep reverence for the Charter.  

A good place to look for background on Sudan, by the way, is The Sudan Open Archive, a service of the Rift Valley Institute (which also runs field training courses in Sudan for aid workers, diplomats, and others looking to work in the field in Sudan; full disclosure, I chair the board of RVI US, because I’m a nonprofits lawyer acting pro bono, not because I know anything about Africa).  

But speaking as a lawyer, I have trouble seeing that R2P made a genuine legal advance in the 2005 document.  (I think Jack Goldsmith made a similar point somewhere along the way, and I’d be curious if that were still his view.)