MJIL Symposium: A Response to Spencer Zifcak by Ramesh Thakur

by Ramesh Thakur

[Ramesh Thakur is Director of the Centre for Nuclear Non-proliferation and Disarmament (CNND) in the Crawford School, Australian National University and Adjunct Professor in the Institute of Ethics, Governance and Law at Griffith University.]

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

Professor Spencer Zifcak has written an insightful article on a topic that is important, timely and will not go away. His analysis and conclusions are judicious, circumspect, balanced and, in consequence, stand the test of time since the article was written. I would like to make four points in summary and add three items to his analysis.

First, the use of force, no matter how benevolent, enlightened and impartial in intent, has empirical consequences and shapes the struggle for power and helps to determine the outcome of that political contest. This is why it is inherently controversial and contentious.

Secondly, the Responsibility to Protect (‘R2P’) is the normative instrument of choice for converting a shocked international conscience into decisive collective action — for channelling selective moral indignation into collective policy remedies — to prevent and stop atrocities. In the vacuum of responsibility for the safety of the marginalised, stigmatised and dehumanised out-group subject to mass atrocities, R2P provides an entry point for the international community to step in and take up the moral and military slack. Its moral essence is the acceptance of a duty of care by all those who live in zones of safety towards those trapped in zones of danger. It strikes a balance between unilateral interference and institutionalised indifference. But the precise point along the continuum is not easily ascertained in the fog of armed violence amidst chaos and volatility.

Thirdly, R2P was the discourse of choice in debating how best to respond to the Libya crisis. But the R2P consensus underpinning Resolution 1973 in 2011 was damaged by gaps in expectation, communication and accountability between those who mandated the operation and those who executed it. For NATO, the military operations, once begun, quickly showed up a critical gap between a no-fly zone and an effective civilian protection mandate. But back in New York, there was an unbridgeable gap between effective civilian protection, which Brazil, Russia, India, China and South Africa (‘BRICS’) supported, and regime change, which they strongly opposed.

One important result of the gaps was a split in the international response to the worsening crisis in Syria. Both China and Russia, still smarting from the over-interpretation of Resolution 1973, have been defiantly opposed to any resolution that could set in train a sequence of events leading to a 1973-type authorisation for outside military operations in Syria.

Fourthly, the Libya controversy over the implementation of R2P notwithstanding, by 2012 there was no substantial opposition to R2P as a principle or norm — an international standard of conduct.

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MJIL Symposium: The Responsibility to Protect after Libya and Syria

by Spencer Zifcak

[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.

Melbourne Journal of International Law, Vol. 13-1: Opinio Juris Online Symposium

by Melbourne Journal of International Law

The Melbourne Journal of International Law is delighted to continue our partnership with Opinio Juris. This week will feature three articles from Issue 13(1) of the Journal. The full issue is available for download here.

Today, our discussion commences with Spencer Zifcak’s article ‘The Responsibility to Protect after Libya and Syria’. Professor Zifcak draws on the disparate responses to the humanitarian disasters of Libya and Syria to examine the current status of the Responsibility to Protect. The respondents to this piece will be Ramesh Thakur and Thomas Weiss.

On Thursday, we continue with Darryl Robinson’s article ‘How Command Responsibility Got So Complicated’. Professor Robinson identifies an initial error in the development of command responsibility jurisprudence — namely, the contradiction generated between the ‘failure to punish’ strand of command responsibility, and its requirement that a defendant causally contribute to a crime — that has lead to confusion about the scope of the doctrine. Ilias Bantekas, Jens David Ohlin and James Stewart will respond to these remarks.

On Friday, our symposium will conclude with Michelle Foster’s contribution, which builds on her article ‘The Implications of the Failed “Malaysia Solution”: The Australian High Court and Refugee Responsibility Sharing at International Law’. The decision of the High Court in M70/2011 v Minister for Immigration and Citizenship invalidated the Australian Government’s attempts to implement a regional agreement with Malaysia for the processing of refugees on the grounds that such arrangements violated legislative requirements that reflected protections under the Convention relating to the Status of Refugees (‘Refugee Convention’). In light of this, Professor Foster’s contribution analyses recent Australian Government amendments to such legislative protections and addresses whether these amendments are consistent with the Refugee Convention. Mary Crock and Susan Kneebone will respond.

We hope that you enjoy participating in the upcoming discussion. We once again thank Kevin Jon Heller and the team at Opinio Juris for the opportunity to host this symposium. For further information about the Journal, the editors may be contacted at law-mjil [at] unimelb.edu.au

Martin Clark, Nuwan Dias and Eamonn Kelly

2012 Editors

Sanishya Fernando

2012 Commentaries Editor