Contextualizing Legitimacy

Article excerpt

SUMMARY

INTRODUCTION .................... 536

II. INADEQUACY: FAILING TO CREATE LEGITIMACY .................... 556

A. The Role of Regional Organizations in Implementing the Responsibility to Prevent .................... 556

B. Regional Organization as the Critical Audience .................... 559

C. How International Law Facilitates the Regional Ownership of the Responsibility to Prevent: The Case of the East Asia-Pacific .............. 563

1. Congruence .................... 564

2. Sensitivity to Historical Experiences .................... 564

3. Adaptability .................... 565

4. Capacity for Incremental Evolution .................... 566

5. Presence of Local Advocates and Active Participation by Local and Regional Representatives in Defining the Legal Norm ....... 567

6. Existence of Broad Constituencies .................... 568

D. Summary .................... 569

CONCLUSION .................... 571

INTRODUCTION

Bosnia. Rwanda. Darfur. How many times has the international community vowed "never again" only to witness further tragic loss of life in another humanitarian crisis? The outrage over these crises -the deaths of thousands at the hands of their own government -launched renewed efforts to examine the relationship between the sovereignty of a state and the responsibility of the state to its citizens.' The examination of this relationship also invited inquiry into the international community's responsibility for crimes perpetrated by a state against its own citizens. These efforts were primarily undertaken by an independent body, the International Commission on Intervention and State Sovereignty (ICISS), which attempted to recast traditional notions of state sovereignty in terms of state responsibilities.2 The result was the notion of the "responsibility to protect."1 This responsibility to protect is comprised of three principles: responsibility to prevent, responsibility to react, and the responsibility to rebuild.4

This Article argues that the successful implementation of the responsibility to protect requires re-examination of the definition of law and those qualities that distinguish legal norms from other types of ordering principles within society. If this re-examination does not occur, international lawyers working towards the implementation of the responsibility to protect will make law an impediment to its success and not a tool for its facilitation. Similarly, this re-examination is needed in order for an international legal norm on the responsibility to protect to secure a meaningful and lasting commitment from the world's actors. This requires appreciation for other factors and forces-outside the traditional legal system -that strive to make similar changes in the world. A legal norm produced out of such considerations is the only type of legal norm that can potentially bring about the changes in the world that the advocates of the responsibility to protect desire. Through this analysis, this Article brings new focus to prevention of atrocity crimes and illustrates how strict adherence to jurisprudential values-the rule of law values -may actually hinder this objective.

The idea of the responsibility to protect gained much attention in the past couple of years when it was invoked with reference to the crises in Libya and Ivory Coast. Civilian protesters in Libya were targeted by government forces in a series of events that risked escalation into "atrocity crimes:" crimes against humanity, ethnic cleansing, war crimes, or genocide.5 In the face of such risk, the international community responded. The U.N. Security Council passed Resolution 1973, which authorized a no-fly zone and permitted Member States, in cooperation with the Security Council, to take "all necessary measures ... to protect civilians and civilian populated areas under threat of attack ... This was a historic step for the international community and the fledgling norm of the responsibility to protect. …