Preventing mass atrocity crimes: the responsibility to protect and the Syria crisis.

• Author: Williams, Paul R.
• Position: Symposium: Presidential Power and Foreign Affairs

CONTENTS I. INTRODUCTION II. BACKGROUND TO THE RESPONSIBILITY TO PROTECT DOCTRINE A. Kosovo B. The Right of Humanitarian Intervention III. EMERGENCE OF THE RESPONSIBILITY TO PROTECT DOCTRINE A. Content of the ICISS Report B. UN Evolution of R2P IV. R2P's THIRD PILLAR AND THE USE OF FORCE A. Pillar Three o/ the Responsibility to Protect B. Libya V. R2P AND THE SYRIA CRISIS A. Preventing and Halting Atrocity Crimes When the Security Council Fails to Act B. Pillar Three of the Responsibility to Protect When the Security Council Fails to Act 1. A prima facie case must be established 2. Peaceful options must be exhausted 3. The Security Council must be unable to act 4. Military force must be limited to low-intensity options designed to protect populations 5. The use of low-intensity military force must be authorized by a legitimate authority 6. The intervention must come at the request of credible opposition groups VI. CONCLUSION I. INTRODUCTION

The Responsibility to Protect (R2P) is a complicated and "emerging norm" (1) of international law that seeks to provide a means for the international community to prevent mass atrocity crimes occurring within the boundaries of a sovereign state. (2) Since its emergence in 2001, in the wake of humanitarian tragedies in Bosnia, Rwanda, Kosovo, and Darfur, R2P has been hailed as a way of resolving what one commentator called the "problem from hell." (3) Under R2P, however, the use of force is reserved for actions within the UN Charter's Chapter VII framework. As the Syria crisis has demonstrated, this position continues to hinder efforts by the international community to protect populations from mass atrocity crimes.

This article argues that when peaceful measures have been exhausted and the Security Council is deadlocked, R2P's third pillar should allow the use of only those low-intensity military options, such as no-fly zones and humanitarian safe havens, that are focused on protecting populations. This approach would advance R2P's development by establishing specific criteria that allow for the limited use of force when the Security Council fails to act. In doing so, R2P will be able to fulfill its primary purpose of preventing mass atrocities within a sovereign state, thus preventing humanitarian tragedies similar to those witnessed in Bosnia, Rwanda, Darfur, and now Syria.

At the time of writing, attacks by Syrian government forces and militias have killed upward of 75,000 civilians, and approximately 1,000,000 refugees have fled into neighboring states. (4) The international community has tried to resolve the Syria crisis through diplomatic overtures and sanctions, but its attempts have been unsuccessful. Although the UN Human Rights Council has concluded that Syria's humanitarian crisis is being driven by a "state policy" of deliberate attacks against civilians, (5) military intervention by the Security Council has not been forthcoming.

Russia and China oppose any coercive measures against Syria, with Russia contending that the international community should "strictly adhere to the norms of international law. ..." (6) While Russia's opposition is likely grounded in their strategic self-interest, (7) some states remain concerned that humanitarian action "could be abused by powerful states as justification for interventions that serve their political interests." (8) Given the Security Council's ineffectiveness in the Syria crisis, some commentators have argued that R2P advocates must either "mobilize a coalition of the willing" to intervene in Syria or "let R2P ... rest in peace." (9) Others have called for reform of the Security Council where mass atrocity crimes are at issue, (10)

The Syria crisis highlights the current limitations of the R2P doctrine. Despite R2P's important contributions to the protection of populations over the past decade, the Security Council's veto system can still create situations where states can commit mass atrocity crimes against their citizens. At present, R2P lacks a framework for the limited use of force when the Security Council fails to act. In its present formulation, therefore, R2P is missing a crucial component.

This article first provides a background to R2P, discussing the debate surrounding the legality of "the right of humanitarian intervention." It then discusses the emergence of R2P, providing ah overview of R2P's third pillax, which authorizes the use of force. This article then continues to argue that R2P's third pillar should provide for the limited use of force without Security Council authorization.

Since any use of force outside the Security Council would be at the limits of international law, this article sets forth specific criteria that must be satisfied before the international community could act under R2P's third pillar: (1) a prima facie case must be established; (2) peaceful options must be exhausted; (3) the Security Council must be unable to act; (4) any military force used must be limited to low-intensity options designed to protect populations; (5) the use of low-intensity military force must be authorized by a legitimate authority; and (6) the intervention must come at the request of credible opposition groups. Although the use of force without Security Council authorization is a complicated and delicate question, this article argues that these criteria are the most appropriate way to develop R2P moving forward.

2. BACKGROUND TO THE RESPONSIBILITY TO PROTECT DOCTRINE

   R2P was born out of the humanitarian tragedies of the 1990s and the international community's disagreements as to whether international law recognized a "right of humanitarian intervention," in effect a right to use force for the purposes of preventing mass human rights abuses. (11) Although the protection and promotion of human rights featured as one of the United Nations' principal purposes, (12) the UN Charter both generally prohibited the use of force (13) and guaranteed a state's right to be free from intervention, except for measures authorized by the Security Council under its Chapter VII powers or through state actions taken in self-defense. (14)

   The tension created by the competing concerns of human rights and national sovereignty led to uncertainty about how far the international community could go to intervene in a sovereign state in the face of major human rights violations. Questions arose regarding whether the Security Council had the authority to intervene in matters that were wholly within the borders of a state, and whether, barring Security Council action or a valid claim of self-defense, other states could lawfully take action to stop mass human rights violations. (15) As a result, the international community's ability to prevent mass atrocities was handicapped. (16) This situation not only led to the death of nearly one million in Bosnia and Rwanda, (17) but also NATO's controversial (but legitimate) (18) military intervention to prevent mass human rights abuses in Kosovo.

   1. Kosovo

      In 1998, Yugoslav President Slobodan Milosevic commenced attacks on ethnic Albanian civilians as part of a campaign against the Kosovo Liberation Army (KLA). (19) At first, the Security Council responded to the human rights violations with Resolution 1199. (20) In this resolution, the Security Council labeled the situation in Kosovo a threat to "peace and security." (21) The Security Council also adopted provisional measures that demanded the parties cease hostilities and take steps toward a conciliatory dialogue. (22) In the months that followed, as President Milosevic continued to order attacks on civilians and civilian-populated areas, it became apparent that stronger measures would be required to end the mass human rights abuses. (23) The Security Council, however, failed to authorize further coercive measures to prevent mass atrocities.

      Facing a deadlocked Security in March 1999, NATO conducted Operation Allied Force, a seventy-seven day campaign of air strikes that ended the conflict in Kosovo. (24) The campaign was launched following numerous failed diplomatic efforts by NATO, the UN, and the Organization for Security and Cooperation in Europe (OSCE). The mission's aim was to disable Serbia's military capacity to attack Kosovar Albanians. (25) It included contributions from all nineteen NATO member states, and ended with the agreement of Serbia to cease hostile actions and to withdraw its military forces and political apparatus from Kosovo. (26)

   2. The Right of Humanitarian Intervention

      At the Security Council in March 1999, the United Kingdom justified its actions in Kosovo on the doctrine of "humanitarian intervention." (27) The United Kingdom argued that an exception to the UN Charter's prohibition on the use of force had emerged that allowed states to use force, only for the purposes of preventing mass human rights abuses, when: (1) there is convincing evidence of extreme humanitarian distress on a large scale that requires immediate urgent relief; (2) it is objectively clear that there is no practicable alternative to the use of force it lives are to be saved; and (3) the proposed use of force is necessary and proportionate to the aim of humanitarian intervention. (28) Importantly, the United Kingdom asserted that the right of humanitarian intervention legally justified military intervention without explicit Security Council authorization. (29)

      NATO's actions in Kosovo, though ultimately regarded as legitimate, (30) were at the time highly controversial. Those opposing the doctrine of humanitarian intervention, as proposed by the United Kingdom, often argued it could not be considered customary international law as it lacked sufficient basis in state practice and opinio juris. (31) These individuals noted that claims of humanitarian intervention were made on a selective basis and that many instances of state practice relied upon to support such a right were justified on the basis of self-defense and not a right of...