Symposium: The Responsibility to Protect in Libya and Syria–Introductory Post

[Yasmine Nahlawi is an independent researcher specialising in R2P and its applicability to the Syrian and Libyan conflicts. She holds a PhD in Public International Law from Newcastle University, LLM in International Legal Studies from Newcastle University, and BSc in Political Science from Eastern Michigan University.]

Throughout the Syrian conflict, I led policy initiatives for civilian protection alongside civil society leaders, iNGOs, and public officials within the UK and wider Europe. Despite the flagrant international law violations committed within the conflict that amounted to mass atrocity crimes, and despite the tangible effects that the conflict has imparted upon international peace and security, the international community failed to adopt robust measures to bring an end to such atrocities. The Libyan conflict assumed a contrasting trajectory through NATO’s timely military intervention and the ousting of long-standing dictator Muammar Gaddafi. The end result, however, was – and remains – a state of anarchy, also characterised by the continued commission of mass atrocity crimes. These and other developments prompted a critical reflection of international legal norms pertaining to human protection vis-à-vis the ‘responsibility to protect’ (R2P) doctrine, and the outcome is my book ‘The Responsibility to Protect in Libya and Syria: Mass Atrocities, Human Protection, and International Law’. I am grateful to Opinio Juris for hosting this symposium on the book and to the reviewers Shannon Raj Singh, Jessica Peake, and Anjali Manivannan for taking the time to offer what I am sure will be insightful and thought-provoking reviews.

In my book, I set out to achieve two distinct goals. First, I sought to uncover how much legal traction R2P holds, namely, through dissecting its component pillars and situating their provisions within existing and emerging international legal norms (as per the UN Secretary-General’s 2009 ‘Implementing the Responsibility to Protect’ report, R2P’s Pillar 1 constitutes the responsibility of States to protect their populations from the mass atrocity crimes of genocide, war crimes, crimes against humanity, and ethnic cleansing; Pillar 2 addresses the responsibility of the international community to assume a supportive role and to ‘assist states in meeting those [Pillar 1] obligations’; and Pillar 3 speaks to the responsibility of the international community to ‘respond collectively … when a State is manifestly failing to provide such protection’). Second, I wanted to examine R2P’s application in Libya and Syria, as two significant R2P cases, with view to identifying practical and legal gaps within R2P’s enforcement and in turn to recommend how R2P can be strengthened in order to overcome these gaps. In this post, I will merge my findings and outline two key lessons from each R2P case.

Syria

1. R2P must incorporate an obligation to react to the commission of mass atrocity crimes as per its Pillar 3.

The Syrian R2P case exposed the inherent selectivity that continues to plague international responses to mass atrocity situations, despite this being a central motivation for R2P’s emergence in the first place. Without the crystallisation of an R2P Pillar 3 obligation – and not a mere right or commitment – for States to respond to mass atrocity situations, it is difficult to see how R2P can achieve its goal of eradicating mass atrocity crimes.

Chapter 5 of the book outlined various existing and emerging norms relevant to R2P’s Pillar 3, including the Article 1 Genocide Convention obligation to prevent genocide, the Common Article 1 Geneva Conventions obligation to ‘ensure respect’ for the Conventions, and the Article 41 Articles on State Responsibility (ASR) provision for States to ‘cooperate to bring to an end through lawful means any serious [breaches]’ of peremptory norms. Collectively, these provisions indicate that State obligations to respond to mass atrocity crimes already exist to a limited extent under international law. However, either individually or collectively, they retain the following shortcomings:

• They are fragmented;
• They lack clear acceptance and/or implementation by States;
• With the potential exception of the obligation to prevent genocide, they lack a clear due diligence standard by which to establish their breach;
• They lack clarity with regards to the specific bearers of these obligations and/or of the measures that States can or must undertake in order to fulfil them.

As such, the emergence of a distinct R2P Pillar 3 obligation for third-party States to respond to the commission of mass atrocity crimes is essential.

2. If R2P’s Pillar 3 fails to evolve into a binding obligation, then, at the very least, the doctrine must facilitate options for circumventing abusive vetoes exercised at the UNSC in the context of mass atrocity situations.

As the only body that can lawfully authorise the use of force absent self-defence and that can issue binding obligations upon all UN member-States, decision-making by the UNSC holds disproportionate weight in the discharge of R2P. Unfortunately, however, the veto power enjoyed by its P5 members (the US, UK, France, Russia, and China) can obstruct international action on R2P cases, as witnessed in Syria through a series of fourteen Russian and/or Chinese vetoes (two of which have been exercised since the book’s publication). As such, the identification of specific means through which the veto can be curtailed and/or overcome in mass atrocity situations is critical. The book identified four such options:

• Lawful measures: Lawful measures represent permissible and non-military means that all States can employ to respond to mass atrocity situations (e.g. severance of diplomatic ties, suspension or expulsion of a State from an international body, establishment of peacekeeping forces, and pursuit of accountability in domestic or international courts). However, while they are useful in signifying States’ collective outrage against potential or ongoing mass atrocity crimes, they are generally insufficient to bring an end to a mass atrocity situation.
• Third-party countermeasures: The right of non-injured States and international organisations to undertake countermeasures (third-party countermeasures) to address violations of international legal norms owed to the international community as a whole (e.g. obligations erga omnes) is a highly contested issue. This book argued that third-party countermeasures represent useful tools to expand States’ individual and collective capacities to respond to mass atrocity crimes through non-military means, and, as such, argued for their formal incorporation into R2P as part of their wider crystallisation under international law.
• Regional authorisation: Chapter VIII of the UN Charter prohibits the use of force by regional organisations absent UNSC authorisation. An emerging challenge in this respect presents through Article 4(h) of the Constitutive Act of the African Union, which grants the AU the right to intervene in member-States in cases of genocide, war crimes, and crimes against humanity. This Article has yet to be invoked in practice, so it remains unclear whether regional intervention on the basis of prior treaty-based consent (although, importantly, not a general right of regional intervention in R2P cases in the event of UNSC deadlock) will gain acceptance by States and practitioners of international law.
• Uniting for Peace (UforP): UforP allows the UNGA to issue recommendations, including for the use of force, on issues threatening or breaching international peace and security when the UNSC is paralysed from responding to these issues due to the veto. While the UNGA’s residual responsibility to maintain international peace and security is widely accepted among scholars of international law, its right to recommend the use of force in particular has been the subject of great contention. The book critically analysed relevant provisions of the UN Charter as well as international case law to conclude that UforP is fully consistent with international legal norms pertaining to the use of force. As such, it advocated for the clear endorsement of UforP as a lawful and legitimate means of circumventing abusive vetoes at the UNSC in R2P cases.

Libya

1. Limitations to R2P mandates for the use of force must be clarified, in particular the role that regime change may, if at all, play within such mandates.

NATO’s protracted military campaign in Libya and its pursuit of regime change was widely criticised as overstepping the mandate of UNSC Resolution 1973 to employ ‘all necessary measures’ to protect civilians. Looking to international case law (Namibia, Tadić, Kosovo, and Al-Jedda cases), Chapter 6 of the book argued that the Resolution should be interpreted in light of 1) the ordinary meaning of its relevant provisions; 2) its object and purpose; and 3) supplementary materials that can assist with the interpretation of the above. An analysis of NATO’s military operations in Libya concluded that they aligned with both the ordinary meaning and the object and purpose of UNSC Resolution 1973. However, they were deemed incompatible with supplementary means of interpretation, most notably statements given by States in favour of as well as against NATO’s military campaign. This discrepancy reveals a need for deeper examination of the relationship between R2P and regime change (and perhaps the use of force more generally) in order to ascertain what limits, if any, should bind member States in discharging R2P protection mandates.

2. The rebuilding element of R2P must be revived.

In the 2001 ICISS document, which coined R2P, the doctrine was defined as a three-part responsibility for States to prevent mass atrocity crimes, to react to their emergence, and to rebuild following a military response. In the 2005 World Summit Outcome document, however, which presents the currently agreed-upon formulation of R2P, the responsibility to rebuild was dropped entirely. In Libya, the country’s relapse into civil war following Gaddafi’s ousting reinforced that R2P cannot ensure true and long-term human protection from mass atrocity crimes unless intervening States are required to satisfy rebuilding initiatives to safeguard the respective country from relapse.

I invite readers to check out the book for further analysis on each one of these points, and more!