LJIL Symposium: From Nicaragua to R2P: Continuity and Change

[André Nollkaemper is is Professor of Public International Law and Vice-Dean for Research at the Faculty of Law of the University of Amsterdam.]

Cross posted on the SHARES blog

The ICJ´s decision in Nicaragua surely is one of its most cited judgments. It remains the leading authority on attribution of conduct of non-state actors and on (collective) self-defense. It also is a popular point of reference in analyses of the formation of customary law and on the jurisdiction of the Court. In his excellent The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, Marcelo Kohen points out that the Judgment also is a relevant source for understanding the concept of responsibility to protect (R2P), even though that concept only came into existence some twenty years after the judgment.

Kohen rightly argues that R2P, by placing emphasis on collective security and discounting unilateral action, has been placed firmly in the footsteps of – and is fully consistent with – Nicaragua´s holdings on non-intervention, and that there is nothing in the concept of R2P ‘allowing for a reversal of the principle of non-intervention or otherwise allowing states to intervene without SC authorization.’ (at 163).

It is hard to expect otherwise. The application of the concept of R2P continues to give rise to controversies between states and other relevant actors. The small step forward that appeared to be brought by SC Res 1973(2011) proved to be two substantial steps backward, following the overly broad interpretation that led NATO to overthrow Gadaffi. The absence of consensus on meaning, scope and implementation at the political level obviously means the lack of a basis for a change in the relevant principles of international law, notably those on protection of human rights, non-intervention and the use of force.

Nonetheless, as Julia Hoffmann and I argued in our recent book, rereading Nicaragua in the light of the wide variety of controversial issues surrounding R2P makes sense. On the one hand, the US had based its support for the contras in part on the fact that Nicaragua had committed violations of human rights (eg par. 267), the same rationale that underlies the aspirations of many who relied on R2P in the context of Libya or Syria. On the other hand, the main ambition of the US was not so much to protect human rights as to (support the) overthrow of the regime. This may not be a generally accepted aim of R2P doctrine, but it certainly can be part of the agenda of R2P supporters. The middle way that the Court had to find between the laudable ambitions to protect human rights on the one hand, and the no-go area of allowing a state to support the overthrow of a foreign regime, is potentially relevant to the R2P debate.

The main relevance of the judgment for R2P does not lie so much in the parts dealing with use of force – what R2P has to say on this is clear: nothing in R2P envisaged any change in the established rules on the use of force. Rather, the judgment is of interest for what it does (not) say on policy measures that seek change (or protection) in a foreign state, short of the use of force.

Kohen rightly points out that the Court’s key holdings on this point are of continuing relevance for R2P: even an argument based on the alleged need to protect human rights cannot justify interventionist policies, whether these are carried out by use of force or short of the use of force (such as funding the contras) (par. 268). If we consider the agenda of western states in regard to Libya and now Syria, in particular their aim to support insurgents, this is a message that bears repetition. The surge in attention for human rights protection since Nicaragua has not really changed the cardinal rule that such support may lead to a breach of the prohibition of intervention.

But this is about as far as Nicaragua goes. Beyond this, it hardly helps our understanding of the legality of policies that seek to protect civilians against repressive government that may qualify as international crimes (and thus trigger R2P). The key question is not so much whether intervention is or is not prohibited (clearly it is), but what does and what does not amount to intervention. Unsurprisingly given the facts that were before the Court, there is to be a wide gap between what the Court had to say in Nicaragua on the one hand, and the variety of policy questions that may be considered in applying the principle of R2P. Moreover, it is not in all respects clear that the sometimes strict wording of the Court has survived the passage of time.

In particular two fundamental questions stand out. One is what is and what is not covered by the prohibition of intervention. The other is how otherwise prohibited intervention may be justified by the nature of the acts to which R2P related policies respond.

As to the first question, the Court did not proceed much beyond the often quoted definition that ‘A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely… Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention’ (par. 205). One problem here is the term ‘free’. Surely it would not be contended that human rights policies are ‘free’ ones. Yet we cannot assume that the Court meant that in regard to such policies there can be no prohibited intervention (see below on the link with countermeasures).

Leaving this aside, the two most concrete clues that the Court provided as to what constitutes intervention, were that funding contras is not covered by use of force, but is covered by the prohibition of intervention (par. 228), and that economic sanctions are not covered by prohibited intervention (par. 245). Kohen provides a few other examples (at 161, another article of relevance can be found here), but the spectrum of policy measures that have been considered as part of R2P is very diverse. Does the prohibition of intervention prohibit the setting up of ‘safe zones along the Turkish-Syria and Jordan-Syria border with humanitarian corridors leading up to them’, as proposed by some European politicians? Does it prohibit support to NGOs who campaign for freedom? Does it prohibit humanitarian assistance, through local or transnational NGOs? On the latter question, the Court suggested that this would be allowed (par. 242), but added, by referring to the principles adopted by the Red Cross, that such assistance should make no discrimination as to political opinions. Yet, it would seem that humanitarian assistance in Libya was channeled primarily to victims among the insurgents, rather than to the wounded on the side of the government forces. We cannot really say that Nicaragua is of much help in distinguishing what is prohibited intervention and what is not. In this respect, a fresh look at recent state practice is likely to yield more clues than the Court provided.

The second question is what is the legal relevance of the fact that the conduct to which R2P-based policies respond, constitute wrongful acts (as far as the state is concerned) and international crimes (as far as individuals are concerned). The judgment is less than clear here. The Court suggested that human rights monitoring was a task of international institutions rather than states (par. 267), but then noted that ‘the use of force could not be the appropriate method to monitor or ensure such respect’ (par. 268), perhaps suggesting that measures short of the use of force could be justified. But it did not explore this in terms of counter-measures. This link between (non-)intervention and countermeasures was also hinted at in the already cited rather confusing sentence that ‘A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely.’ (par. 205) This cannot be right as a general proposition. Even if states are not permitted to decide freely, for instance by committing large scale human rights abuses, intervention surely still can be prohibited. But one way to make sense of it is by linking intervention to (collective) countermeasures. It then could be argued that if a state is no longer to decide freely on human rights protection, and would carry out policies that contravene the limits that international law set to that freedom, other states might be entitled to take countermeasures. The Court expressly confirmed the ban on armed countermeasures in this context (par. 211, par. 249) and otherwise suggested to embrace a ban on third-state countermeasures (par. 249). This latter position remains of course contentious (cf Art. 54 of the Articles on State Responsibility), but it is not necessarily clear here that the rather strict wording of the Court is in keeping with the practice of R2P related policies – and the response thereto.

In sum, while Kohen correctly observes that there is nothing in the concept of R2P that leads to a reversal of the principle of non-intervention, it also is true that the contents of (non-)intervention, as well as the exceptions that are based on prior crimes, was left ambiguous by the Court and that it is precisely in these two areas that R2P relevant practices (whether or not based on express reference to R2P) reduce the continued relevance of Nicaragua.