MJIL Symposium: The Responsibility to Protect after Libya and Syria

[Spencer Zifcak is Allan Myers Professor of Law and Director of the Institute of Legal Studies at the Australian Catholic University.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

My article on this subject attempts to encapsulate the standing of coercive (Pillar 3) intervention within the framework of the Responsibility to Protect (‘R2P’) following the application of the doctrine in Libya and paralysis with respect to it in Syria. In 2011, the international community was confronted with the prospect that large-scale civilian casualties may occur as a consequence of fighting between government and rebel forces in Libya. The UN Security Council, therefore, was confronted with the dilemma of whether to authorize an intervention to avert what seemed likely to be a humanitarian catastrophe. In this case, the UN Security Council sanctioned an intervention by NATO forces in accordance with the new doctrine. Soon after, the Syrian rebellion took hold and civilians began to be killed and injured in their thousands. In that case, however, the Security Council has been stymied as neither sanctions nor military intervention can be agreed upon. In the article, the Libyan and Syrian cases are analysed with a view to determining why the international community’s response to the two conflicts has been so different and what these differences tell us about the current status and practice of the R2P doctrine. To that end, the article concludes with a series of propositions which summarize my answer to the latter question.

I have recently updated the article to take into consideration the tragic developments in Syria between February, at the time the article was completed, and October this year. In the light of that revision, the propositions contained in the original have been slightly amended. For the purpose of this interchange, therefore, I provide the most recent set as follows:

• Prior to approving a coercive Pillar 3 intervention, in the interests of national sovereignty and independence, the Security Council will need to be satisfied that every possible diplomatic solution to a crisis has been exhausted. Pillar 3 intervention will occur only as the last resort.

• Prior to approving a coercive Pillar 3 intervention, the Security Council is likely in future to insist that its objectives be made clear and that its mandate be spelt out with precision.

• It is highly unlikely that the Security Council will approve a Pillar 3 intervention if its explicit or implicit objective is regime change.

• Given that a Security Council mandate for a Pillar 3 intervention is likely to have as its principal objective the protection of civilians, it is probable that the Security Council will require that the position of an intervening force be one of strict neutrality as between the contending parties.

• Before approving a Pillar 3 intervention, the Security Council will need to be clearly satisfied first, that the intervention is likely to achieve its protective objective within the country concerned and, secondly, that it will not result in any wider regional destabilization.

• A Pillar 3 intervention should, in all aspects, conform to the dictates of international law and in particular international humanitarian law.

• Where a contemplated coercive intervention runs contrary to the core political or strategic interests of a member of the P-5, it highly unlikely to proceed. This is unless the crimes against humanity committed are so extensive and so grave that no reasoned member could resist the demand the crimes be fought. Even so, the failure of Russia and China to endorse even a very weak Security Council resolution against Syria in the face of clear evidence of the commission of mass atrocities has dispiritingly cast doubt even on that seemingly obvious proposition.

• However inadequate, engagement in Pillar 3 intervention that excludes action pursuant to Chapter VII of the UN Charter may still be preferable to provoking Security Council gridlock. This is because, as in Syria, the outcome of gridlock may be seen by antagonists to a conflict as an international licence for the commission of further crime.

• Alternatively, in response to mass atrocities, coalitions of the willing may decide to take action outside the legal framework of the UN Charter. Should this become common, R2P may wither to the great detriment of the international rule of law.

The full article may be accessed here.