From Paralysis in Rwanda to Boldness in Libya: Has the International Community Taken "Responsibility to Protect" from Abstract Principle to Concrete Norm under International Law?
Meyer, Jason Dominguez, Houston Journal of International Law
I. TWENTIETH-CENTURY HUMANITARIAN INTERVENTION Military Intervention in Kosovo in 1999 II. INTERVENTION IN THE TWENTY-FIRST CENTURY Non-Security-Council-authorized, Multilateral Humanitarian Intervention III. EFFECT OF INTERVENTION IN LIBYA ON INTERNATIONAL LAW Intervention in Syria IV. CONCLUSION
I. TWENTIETH-CENTURY HUMANITARIAN INTERVENTION
Sovereigns have a responsibility to protect their citizens. They are "responsible for the functions of protecting the safety and lives of citizens and promotion of their welfare." (1) Another modern view endorsed by states affirms "[e]ach 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." (2) The United Nations developed a three pillar system to encourage the responsibility to protect: 1) the protection responsibilities of the State, 2) international assistance and capacity-building, and 3) timely and decisive response. (3) Many commentators emphasize the prophylactic aspect of the responsibility to protect. (4) Emphasis on preventative measures has been promoted in the context of eliminating the moral hazard of intervention. (5) However, the U.N. Charter also acknowledged a state's right to be free from intervention. (6) These two values conflict, as they do in domestic systems, such as in the U.S. where the right to be free from unreasonable searches and seizures clashes with the government's interest in crime control. (7) The importance of human rights law and policy strengthened during the twentieth century, changing the balance. The increased importance of human rights law is manifested by the UN Charter (1945) (8); instruments such as the Universal Declaration of Human Rights (1948) (9) and the International Covenant on Civil and Political Rights (1966); (10) numerous human rights institutions, such as the Inter-American Commission on Human Rights (1959), (11) the European Court of Human Rights (1959); (12) organizations, such as Amnesty International (1961) and Human Rights Watch (1978); (13) and international humanitarian law courts, including the Nuremberg tribunals (1945), (14) the International Criminal Tribunal for the Former Yugoslavia (1993), (15) and the International Criminal Court (2002). (16) These structures plainly embody the modern enthusiasm for norms and mechanisms for the protection of human rights.
When the balance tilts towards human rights, society desires intervention, which is defined broadly as "any application of pressure to a state." (17) The humanitarian appellation is applied to interventions that occur when a state intervenes in order to protect individuals from only the most serious crimes (for example, genocide, war crimes, ethnic cleansing, and crimes against humanity) (18) or denial of a more expansive list of rights (such as access to food, employment, and environmental security). (19)
The prototypical humanitarian intervention occurs where ethnic, religious, or political (opposed to the regime in power) minorities need protection. The Kosovo intervention was humanitarian in nature and sought to protect Kosovars, who are primarily of Albanian origin and Islamic. (20) The Libyan intervention protected political opposition members. (21)
Historically, states have intervened to protect individuals from harm. Humanitarian intervention was strongly supported in the 19th century, when international law was less reserved about the use of force. (22) One noted academic claims humanitarian intervention was the basis for the founding of the U.S. and that the English King's principal end in granting the Massachusetts Bay Colony its Charter was to rescue "the natives from their bitter pagan fate." (23)
The UN Charter, specifically Article 2(4) in conjunction with Article 51, supports Security Council authorized intervention. …