MJIL Symposium: A Response to Ramesh Thakur and Thomas Weiss by Spencer Zifcak

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 vol13(1) Symposium. Other posts in this series can be found in the related posts below.

I begin this response by acknowledging the two commentators. Ramesh Thakur and Tom Weiss are, together with Gareth Evans, the pre-eminent writers in the field — as well as each having played formative role in the creation of the Responsibility to Protect (‘R2P’) doctrine in the first place. So, it is a privilege that both have chosen to write a commentary on my article and it is my pleasure now to respond.

Plainly, Professor Thakur and I agree on his four summative points, so there is no need for me to comment further on them. He does, however, point to three matters he believes I have missed, so, let me say something about each.

Professor Thakur observes that, in the Syrian case, a perverse incentive exists for the Syrian rebels to respond brutally to governmental repression in order to internationalise the conflict and thereby encourage external intervention on their side. I had neither seen any prior commentary to this effect nor had this occurred to me. So, I’m grateful for the observation.

My only reservation about it is that it does seem to me difficult to make any valid, general comment about how the rebels are thinking, and why they are acting in the way that they are, because the rebel cause is so divided. As Hussein Agha and Robert Malley note in a recent article in the New York Review of Books, the opposition is an eclectic assortment of ‘Muslim Brothers, Salafis, peaceful protesters, armed militants, Kurds, soldiers who have defected, tribal elements and foreign fighters’. And then there is Al-Qaeda. So, I accept completely that some parts of the rebel leadership will be angling for external intervention but I’m not at this stage sure which ones and how representative they are. Further, if brutality and crimes against humanity are part of a rebel strategy, it does seem to be counter-productive. It is clear that international support for the rebel cause has waned in direct proportion to the increasing number of reports emerging from Syria of rebel atrocities. And so has support within Syria itself. If a vote were taken of Syrians now, it is by no means clear that the rebels would prevail over the regime.

Professor Thakur then refers to the existence of the Sunni-Shi’a split in the country and in the region. I don’t think I missed this one but may not have made it as explicit as it should be. The tragedy within Syria is that initial calls for democratic reform have morphed into a fully-fledged civil war on Sunni-Shi’a lines. And Professor Thakur is right to point to the fact that the Sunni-Shi’a battle has profound regional implications as well. Again, tragically, the civil war has drawn influential regional actors into the fray, so much so that the Syrian conflict already appears, at one level, to be a proxy war between Iran/Iraq on one side, and the Saudis, Qataris and allies, on the other. This is one critical factor that militates against any form of external intervention, as any intervention will alienate significant regional powers with unpredictable and inevitably adverse consequences both ways.

Professor Thakur points to my failure to discuss the Brazilian ‘Responsibility while Protecting’ (‘RWP’) proposal. He is right. I didn’t. I footnoted it and that is all. There were two reasons for this. First, I’ve read it many times and have not found it particularly helpful. In my view, it is not much more than a statement of the obvious, in the wake of the mistakes made by the international community in the Libyan case. Secondly, one of my major objectives in the article was to encapsulate the standing of R2P following Libya and Syria. I did that in a series of propositions at the end of each section. These propositions in part resemble those in the Brazilian document but are more specific, detailed and, I hope, more helpful. So, I didn’t want to muddy these waters by setting out to compare and contrast the two encapsulations. And since one was my own, obviously I chose to give it most prominence. Professor Thakur is right, however, to point out that the Brazilian concept note has provoked some new thinking. So, I will take that as an encouragement to explore the discussion while maintaining my reservations about the Brazilian note itself.

Professor Thakur points to two key elements in the RWP proposal that he believes are significant. The Security Council should ensure that it sets in place a monitoring and review mechanism when any intervention is commenced so as to ensure compliance with the Council’s resolutions. It should also formulate an agreed set of criteria on the basis of which to debate and mobilise consensus upon an R2P military intervention.

The second one is interesting. Gareth Evans has been a tireless advocate of the Security Council’s adoption of such prudential criteria and I am in wholehearted agreement with him on this. I note that Professor Thakur too, has joined Evans in a recent letter in which both support the deployment of the prudential criteria developed in the International Commission on Intervention and State Sovereignty (‘ICISS’) report, the High-Level Panel report and Kofi Annan’s In Larger Freedom. It was in this context that I wrote the sentence that appears to have surprised Professor Weiss. In the article, I wrote that ‘judgments as to whether and when to intervene are likely in the foreseeable future to be made case by case rather than according to predetermined, universally applicable principles’. This was a reference to my earlier discussion about the desirability of adopting prudential criteria. There is substantial opposition, not least amongst the P-5 to the Security Council’s adoption of the criteria, but one can always hope.

I note Professor Weiss’s comment that applying universal principles may have a detrimental effect. I’m not sure whether he was referring here to Evans-Thakur prudential criteria or something else. But if it was in relation to the criteria, I think his criticism is misconceived. It is precisely to avoid the prospect of double-standards that I support the criteria’s application. The South would have far more confidence that they would not be subject to neo-imperial meddling if they could be assured that the relevant criteria including necessity, proportionality and balance of consequences were consistently and openly discussed and applied when decisions as to intervention were being made.

He may be right on another point, however. Yes, it’s true, lawyers love criteria. We think they’re really useful as a means of structuring constructive deliberation and decision-making. But political scientists? Perhaps we are as different as Weiss surmises.

On another matter, Professor Weiss is clearly right. Humanitarian impulse rather than humanitarian imperative is the better descriptor. I will use it. But his last sentence rather puzzles me.

On what basis can it properly be said that if Assad leaves Syria, his exit will have in part been attributable to the R2P norm? Apart from the occasional and cursory reference to R2P in Security Council resolutions decrying the regime’s failure to protect its people from atrocity, for reasons I’ve outlined in some considerable detail, the Syrian case is passing R2P by. Neither the regime, nor its rebel opponents, nor the major regional and international players, seem to be concerned with it at all. Each pursues its agenda with absolute ruthlessness.

R2P is a noble doctrine. For the time being, however, it will have to play on a different and less contested field.

MJIL Symposium: A Response to Spencer Zifcak by Thomas Weiss

by Thomas G Weiss

[Thomas G Weiss is a Presidential Professor of Political Science at The CUNY Graduate Center and Director of the Ralph Bunche Institute for International Studies]

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’s article on the international reactions to Libya and Syria is thorough and thoughtful, and well worth reading for the treasure trove of documentation. But I was frankly surprised by his unsurprising conclusion that ‘judgments as to whether and when to intervene are likely in the foreseeable future to be made case by case rather than according to predetermined, universally applicable principles’.

How else?  Obviously, political scientists and lawyers have quite different expectations.

Undoubtedly the loss of life and suffering is much higher in Syria than in Libya, and it has gotten worse in the time taken to get Professor Zifcak’s article into print. The death toll has risen fivefold — now approaching 25 000 — and the joint UN-Arab League envoy Kofi Annan has resigned from his ‘mission impossible’, an assignment that trouble-shooter Lakhdar Brahimi has assumed.

The paralysis amidst atrocities and killings in Syria suggests, in case there was any doubt, that robust action in one crisis does not necessarily foreshadow similar efforts elsewhere. Inconsistency is not only the hobgoblin of little minds but also the proverbial bottom line for political decision-making. Rhetoric is one thing, tough decisions are another. Talk is cheap, action is not.

Indeed, to expect anything else is to play into the hands of the usual spoilers in the global South — the Nicaraguas and Cubas, the Zimbabwes and Sudans — who point to the double standard of the Responsibility to Protect (‘R2P’) as neo-imperial meddling.  They, of course, would prefer the old single standard for mass atrocities and do nothing because state sovereignty is sacrosanct and includes the license for mass murder. The best should never be the enemy of the good — for R2P or anything else.

In describing the present global governance of mass atrocities, humanitarian ‘impulse’ is more accurate than humanitarian ‘imperative’. The latter entails an obligation to treat victims similarly and react to all crises consistently — in effect, to deny the relevance of politics, which consists of drawing lines and weighing options and available resources. Yet humanitarian action remains desirable not obligatory. The humanitarian impulse is permissive; the humanitarian imperative is peremptory. Similarly, R2P is not a peremptory obligation but a desirable and emerging norm whose consolidation can result in occasional enforcement when the politics are right.

Politics and military capacity ultimately determine whether, when, where and why to protect and assist war-affected populations. However shocking to the conscience a particular emergency and however hard or soft the applicable public international law, when political will and a military capacity exist, humanitarian space will open and war victims will be assisted and protected. In Libya the moral, legal, political, and military dimensions dovetailed under the R2P rubric. Rather than speaking truth to power, the value-added of R2P was speaking truth with power. And if Assad leaves Syria, it will in part be attributed to the evolving power of the R2P norm.

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