This five-part blog post is drawn from Michael G. Karnavas’s Seminar at the Brown University International Organization (BRIO) February 27, 2014. The complete piece is available on Michael’s website.
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After going through all the various legal provisions, I touched on the evolution of the legal theory in practice. The law is not static, and this is not the first time we have seen this type of scenario. The situation in Kosovo in the 1990s involved intervention by a coalition of the willing outside the legal framework. A somewhat progressive legal doctrine “Responsibility to Protect”—“R2P” for short—was adopted shortly after NATO’s intervention in the former Yugoslavia, in order to develop some of the legal framework in regard to the use of force. However, today, we can see that R2P falls short of legalizing intervention outside of the UN framework. Perhaps this is the price paid for acting without UN Security authorization, when examining the evolution of R2P.
1. Humanitarian Intervention in Kosovo
In the late nineties, there was considerable recognition that the conduct of the Yugoslav and Serbian authorities in Kosovo created an intolerable humanitarian crisis which was morally and legally unacceptable. As attempts to reach a negotiated solution failed, NATO Secretary-General, Dr. Javier Solana, announced that he had given authority to begin air strikes intended to “end excessive and disproportionate use of force in Kosovo, and to support the political aims of the international community.” Significant for the Syria discussion is that a “red line” was set by the UN in regard to Kosovo. Security Council resolutions had been imposed on the Federal Republic of Yugoslavia (“FRY”), requiring withdrawal of Serbian security forces from Kosovo. The FRY had failed to comply with its obligations under these resolutions. The NATO action was designed to compel compliance with these obligations. However, no Security Council authorization for the use of force was given before NATO commenced its air campaign against the FRY on March 24, 1999. If NATO had sought authorization for the action from the Security Council, it would have been subject to deadlock—a very similar situation to what we have in Syria today.
As a prelude to the NATO airstrikes, in October 1998, the UK Foreign and Commonwealth office released a report outlining the UK’s view on the legal bases for the use of force in Kosovo. In the report, the UK stated that Security Council authorization to use force for humanitarian purposes was widely accepted. The UK submitted that Security Council authorization would give a clear legal basis for the NATO action, and would be politically desirable. However, the UK reported that use of force can be justified on the grounds of overwhelming humanitarian necessity without Security Council approval, and set out explicit rules governing the use of force:
(a) that there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;
(b) that it is objectively clear that there is no practicable alternative to the use of force if lives are to be saved;
(c) that the proposed use of force is necessary and proportionate to the aim (the relief of humanitarian need) and is strictly limited in time and scope to this aim—i.e. it is the minimum necessary to achieve that end. It would also be necessary at the appropriate stage to assess the targets against this criterion.
After the NATO airstrikes, no formal condemnation was issued by the UN. Security Council Resolution 1244, which was passed a few months after the airstrikes, determined that “the situation in the region continues to constitute a threat to international peace and security.” No authorization for the use of force was given, yet no formal condemnation for NATO’s intervention was heard. This is significant because although the use of force may not have been legal, under international law, it may have been legitimate based on the beneficial consequences in light of the overwhelming humanitarian crisis. The Independent International Commission on Kosovo concluded that:
[T]he NATO military intervention was illegal but legitimate. It was illegal because it did not receive prior approval from the United Nations Security Council. However, the Commission considers that the intervention was justified because all diplomatic avenues had been exhausted because the intervention had the effect of liberating a majority of population of Kosovo from a long period of oppression under Serbian rule.
Interestingly, Richard Falk, a member on the Kosovo Commission, reported that members of the Commission were confused about whether to acknowledge the use of force absent Security Council authorization as a violation of international law. According to Falk, respected scholars had approached the issues in diverging ways. Positivists and Legalists argued that the recourse to force directly violated the core norm of the UN Charter which prohibits the use of force outside of self-defense and Security Council authorization. Critics of American foreign policy doubted the humanitarian intentions of the NATO military operation. Others argued that the prior UN Security Council resolutions had described the situation in Kosovo as constituting a threat to international peace and security, within the meaning of Chapter VII, which paved the way for subsequent authorization of force. Noting these differences in opinion among the Commission members, Falk stated:
The Kosovo Commission was aware of these various lines of response relating to the use of force, and accepted the contention that the apprehension of Serb ‘ethnic cleansing’ in Kosovo was imminent and that the seeming impact of the use of force, despite some criticism of tactics, did have a net positive effect by securing de facto independence for Kosovo, by earning clear expressions of approval from the overwhelming majority of the Kosovar population, and by inducing almost all of the refugees who had left Kosovo to return. In other words, the Commission was seeking an acceptable way to explain its overall view that international law had been violated, but that, despite this, the outcome was definitely beneficial and to be affirmed, and should not be condemned despite its evident illegality.
Falk goes on to say that a legitimizing factor was the view that the NATO governments, particularly the US, had done their best to find a diplomatic solution, and only sought force as a measure of last resort. Second, there was also a particular view that, under the circumstances, the Security Council should have acted, and that it was only prevented by the “irresponsible geopolitics of Russia and China that made it appear to the pro-intervention side that it was worse than useless to seek Security Council approval because there was near certainty of a veto.” Given this context, Falk reported, it seemed unreasonable to the Commission to condemn the intervention because it was technically a violation of international law and the UN Charter. However, Falk was aware of the potential danger of this precedent setting moment:
Of course, such conceptual acrobatics do not really overcome the dark side of the precedent, namely, that leading members of the United Nations went to war under conditions that were neither self-defense nor based on Security Council authorization. The repudiation of legal guidelines in favor of contradictory moral and political imperatives is problematic, given the existence and role of political actors of great inequality when it comes to power.
Falk notes that, to avoid this hazardous “slippery slope,” the Commission did its best to confine the authority of the precedent in three ways: (1) it urged the P-5 members of the Security Council by formal action or informal agreement to suspend uses of veto in situations of humanitarian emergency; (2) it made clear that Kosovo was a narrow exception to the prohibition on non-defensive force; and (3) it set forth a framework of guidelines that were supposed to ensure that any use of force in a future Kosovo-like situation would be human in execution and humanitarian in motivation and effects.
The NATO attacks received no condemnation from the UN; however, this proposition that the air strikes were legal or legitimate was not shared by all states. Three days into the NATO airstrikes, Russia brought a draft resolution to the Security Council which condemned the attacks and called for “an immediate cessation of the use of force against the Federal Republic of Yugoslavia.” Only three states voted in favor of the resolution: Russia, China, and Namibia. Slovenia, which was among the states opposing the resolution, made a key point that the Security Council should not have the monopoly on decision-making regarding the use of force, and that it has the “primary, but not exclusive responsibility for maintaining international peace and security.”
In 2000, China and the “Group of 77”, 77 developing UN Member States who are parties to the Joint Declaration of the Seventy-Seven Developing Countries, explicitly rejected the “right” of intervention, and declared that it has no legal basis in the UN Charter or in the general principles of international law:
We stress the need to maintain a clear distinction between humanitarian assistance and other activities of the United Nations. We reject the so-called ‘right’ of humanitarian intervention, which has no legal basis in the United Nations Charter or in the general principles of international law. In this context, we request the Chairman of the Group of 77, in conjunction with the Chairman of the Non-Aligned Movement (NAM), through the Joint Coordinating Committee, (JCC), to coordinate consideration of the concept of humanitarian intervention and other related matters as contained in the 1999 Report of the United Nations Secretary-General on the work of the Organization. We further stress the need for scrupulously respecting the guiding principles of humanitarian assistance, adopted by the General Assembly in its resolution 46/182, and emphasize that these principles are valid, time-tested and must continue to be fully observed. Furthermore, we stress that humanitarian assistance should be conducted in full respect of the sovereignty, territorial integrity, and political independence of host countries, and should be initiated in response to a request or with the approval of these States.
2. Responsibility to Protect “R2P”
Kosovo can be seen as a precedent setting event. If the Security Council is deadlocked, Kosovo tells us that the use of force may be legitimate in the absence of legal authority if used for humanitarian purposes, and if no condemnation is subsequently issued by the UN. This leaves open a peculiar issue: will it open “Pandora’s box” to states seeking to use armed intervention when one of the P-5 members would block a Security Council authorization? One clear example comes from the recent instabilities in Ukraine. After the overthrow of Ukrainian President Viktor Yanukovych in February 2014, Russia sent military troops to the Crimea region of Ukraine in order to protect ethnic Russians, as Russian President Vladimir Putin believed that the Ukrainian president had been overthrown in a coup. Was President Putin justified in deploying troops to protect Russians in Ukraine? Can a state unilaterally make its own determination about whether international law has been violated, and subsequently act on that determination?
An attempt to formalize and constrain the Kosovo precedent was made in the development of the doctrine of “Responsibility to Protect.” The International Commission on Intervention and State Sovereignty (“ICISS”) issued its report “Responsibility to Protect” in 2001, shortly after the NATO air campaign. ICISS considered that: “if the Security Council fails to discharge its responsibilities in conscience-shocking situations crying out for action, then it is unrealistic to expect that concerned states will rule out other means and forms of action to meet the gravity and urgency of these situations.”
Under R2P, sovereign states have a “responsibility to protect their own citizens from avoidable catastrophe—from mass murder and rape, from starvation. If states are unwilling or unable to protect their own citizens (for example using chemical weapons against their own population), that responsibility must be borne by the broader community of states. The principles of R2P have several restrictions. First, there is a “just cause” threshold—serious and irreparable harm to human beings must be imminent and likely to occur. Second, there are “precautionary principles.” The author of the use of force must have the right intention—to avert or halt human suffering and military intervention may only be justified when every non-military option for the prevention or peaceful resolution of the crisis has been extinguished. Additionally, the attack must be proportional in scale, duration and intensity, and must have a reasonable prospect of success. Third, the use of force must have a legal basis—authorization from the Security Council. Back to square one: R2P effectively offers nothing other than what the UN Charter guarantees in the first place, including UN Security Council restrictions on the use of force. What was meant as a fix to P-5 gridlock during extreme humanitarian crises when there is an imminent need to use force to protect innocent civilian lives, has turned into a meaningless construct—at least from the legal standpoint.
The R2P doctrine was formally adopted by the United Nations General Assembly in Resolution 60/1 following the 2005 world summit. Paragraphs 138 and 139 of the Resolution outline the adoption of this approach:
138: Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.
139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.
Libya was one particular instance where R2P was put into practice. Amidst the conflict in Libya as a result of the Arab Spring, the Security Council passed Resolution 1973 which considered that the widespread and systematic attacks that took place in Libya against the civilian population may have amounted to crimes against humanity and “authorize[d] member states . . . to take all necessary measures . . . to protect civilians and populated areas under attack in Libya. This is R2P in its purest form. The Libyan government failed to protect its own citizens, and thus the responsibility was borne by the international community. Force was authorized through the Security Council and aimed to protect the civilian population.
However, R2P does not solve the issue of Security Council deadlock. If the use of force in Libya had grabbed the attention of national interests of any of the P-5 members, the application of R2P would have fallen short of making intervention permissible. R2P clearly requires Security Council approval. And so the question to answer in the Syrian conflict is whether there are a set of circumstances that would permit a nation to use or threaten force absent a Security Council Resolution. It depends. If R2P is viewed as a legal norm, the answer is no. If viewed as a principle reflecting what is morally right—legitimate as opposed to legal—then perhaps, under some discrete set of circumstances such as those identified by the UK, the answer could be yes. But who gets to decide which humanitarian crisis merits the use of armed intervention absent UN Security Council authorization? Listen closely to Vladimir Putin and it would appear that part of his justification for his action in Ukraine is because the Russian nationals in the Crimea are under an imminent threat requiring armed intervention. Anticipatory self-defense also seems to loom large as part of his justification; the need to protect Russia’s national and military interests. A bit reminiscent of the Bush/Obama doctrine on anticipatory self-defense.
 Christopher Greenwood, Humanitarian Intervention: The Case of Kosovo, Finnish Yearbook of Int’l L. 141, 143 (2002).
 Id. at 151.
 See S.C. Res. 1199, U.N. Doc. S/RES/1199 (Sept. 23, 1998).
 Greenwood, supra note 62 at 156.
 Id. at 151.
 Foreign & Commonwealth Office, Fry/Kosovo: The Way Ahead; UK Legal View on the Base for Use of Force (Oct. 7, 1998) reprinted in Adam Roberts, NATO’s ‘Humanitarian War’ over Kosovo, Institute for Strategic Studies, 41 Survival 102, 106 (1999).
 S.C. Res. 1244, U.N. Doc. S/RES/1244 (June 10, 1999).
 Independent International Commission on Kosovo, The Kosovo Report, Conflict, International Response, Lessons Learned, 4 (Oxford 2000).
 Richard Falk, Legality and Legitimacy: Creative Tension and/or Geopolitical Gambit, Occasional Papers Of The Subaltern-Popular Workshop (posted May 21, 2007), at 6–8, http://www.ihc.ucsb.edu/subaltern/citation/papers.html.
 Id. at 6.
 Falk, supra note 73 at 7.
 U.N. Doc. S/1998/328 (Mar. 26, 1999).
 Press Release, Security Council, Security Council Rejects Demand for Cessation of Use of Force Against Federal Republic of Yugoslavia, U.N. Press Release SC/6659 (Mar. 26, 1999).
 Group of 77 South Summit, Declaration of the South Summit (Apr. 2000), para. 54, available at http://www.g77.org/summit/Declaration_G77Summit.htm.
 Michael Kelly, PUTIN: What Happened In Kiev Was An Unconstitutional Overthrow And Yanukovych Is Still President, Bus. Insider, Mar. 4, 2014, available at http://www.businessinsider.com/putin-what-happened-in-kiev-was-an-unconstitutional-overthrow-and-yanukovych-is-still-president-2014-3#ixzz2v0xUMUU3.
 ICISS, Report of the International Commission on Intervention and State Sovereignty, Responsibility to Protect VIII (Dec. 2001) (“ICISS R2P Report”).
 Id. at XII.
 ICISS R2P Report at XII.
 G.A. Res. 60/1, U.N. Doc. A/RES/60/1 “2005 World Summit Outcome” (Oct. 24, 2005).
 Id., paras. 138, 139.
 S.C. Res. 1973, U.N. Doc. S/RES/1973 (Mar. 17, 2011).