The Council on Foreign Relations has published a report authored by Matthew Waxman about the responsibility to protect (R2P). Waxman asks “whether the current international legal regime with regard to the use of military force – that is, international law regulating the resort to armed intervention – is appropriate and effective in determining and stopping mass atrocities.” His answer – that the UN Charter system “could be effective” – may very well be correct, but certainly not as a result of the policy he proposes.
The R2P dilemma, as Waxman explains, is that there is no definitive legal route to intervening militarily to stop mass atrocities. Absent Security Council authorization, the only legal uses of force are instances of self-defense. Even if the Security Council authorizes intervention into a UN member state’s territory in response to an internal matter (as it did with Somalia, Haiti, and Bosnia), the Security Council would be stretching its jurisdictional scope, which is confined by the UN Charter to “international peace and security.” Still, Security Council approval seems to legitimate military interventions in the minds of the world’s population. However, Security Council approval is a slow process and subject to the potential vetoes of the Council’s five permanent members. Thus, the only legitimate route to halting a mass atrocity is slow and uncertain. Waxman’s solution is a double standard:
In affirming its own commitment to the responsibility to protect, the United States should declare that each of the five permanent Security Council members has a special responsibility to uphold global norms and that the veto power should not be used to block timely and decisive action when genocide or crimes against humanity are manifestly occurring and when other criteria, such as necessity and proportionality of military action, are satisfied.
Also:
…[T]he United States should be prepared to act outside the Security Council if necessary. Although it should not go so far as to declare in advance an explicit intention to do so, the United States should not completely hide its willingness to do so either. For policymakers, this means being prepared to act within a legal gray zone when the moral calculus so dictates.
And here’s the double standard:
The United States, too, should be wary of ceding its veto power given the propensity of other blocs of states to invoke the responsibility to protect in unduly politicized ways.
In other words, the United States should retain its R2P veto power for itself, but deny it to others. Waxman does not properly grapple with the likely consequences of this route. First, other countries will, inevitably, use U.S. R2P interventions to justify their own interventions (see U.S. in Kosovo, Russia in Georgia). Second, increasing the unequal institutionally-determined power distribution of the UN Charter system is likely to lend more credence to critics of the Charter system. Statements like this one made by Iranian President Ahmadinejad earlier this year at a UN conference…
Ladies and gentlemen, look at the Security Council which is the legacy of World War I and II. Based on what logic have they been given the right to veto? With which human and divine value is this logic compatible?… When there is legal discrimination and the law-making centre is a source of bullying and force instead of justice and fairness, how can one expect to achieve justice and peace?
…may find more of an echo effect. For both of these reasons, Waxman’s proposed track is more likely to weaken, rather than strengthen, the UN Charter system, the opposite of his intention, for as Waxman writes:
Given that other instruments, such as sanctions and international criminal justice, will often be administered through and legitimated by UN Security Council action, the United States has a strong interest in effective Security Council functioning. The intervention issue with respect to mass atrocities cannot be completely divorced from issues of the Security Council’s status more generally; steps that erode its authority in one area are likely to erode it in others, in ways detrimental to U.S. interests.
Furthermore, Waxman’s proposal doesn’t adequately address the main argument of R2P’s critics, that being that R2P will be abused by aggressor states wishing to morally justify their actions. As Noam Chomsky argued earlier this year during the UN General Assembly’s R2P debate:
…[V]irtually every use of force in international affairs has been justified in terms of R2P, including the worst monsters. Just to illustrate, in his scholarly study of “humanitarian intervention,” Sean Murphy cites only three examples between the Kellogg-Briand pact and the UN Charter: Japan’s attack on Manchuria, Mussolini’s invasion of Ethiopia, and Hitler’s occupation of parts of Czechoslovakia, all accompanied by lofty rhetoric about the solemn responsibility to protect the suffering populations, and factual justifications… The founding of this country is an example. In 1629, the Massachusetts Bay Colony was granted its Charter by the King, stating that rescuing the natives from their bitter pagan fate is “the principal end of this plantation.” The Great Seal of the Colony depicts an Indian saying “Come Over and Help Us.” The English colonists were thus fulfilling their responsibility to protect as they proceeded to “extirpate” and “exterminate” the natives, in their words, “and for their own good,” their honored successors explained.
While I agree with Waxman that “the normative terrain of intervention can affect operations on the ground,” I don’t agree that the benefits of his proposal will outweigh the costs.
