– William Pickens
The March 2003 invasion of Iraq, regardless of whether one views the invasion as legal and authorized by Security Council Resolutions 678 and 1441 or illegal and an international act of aggression, was undoubtedly a misuse of the RTP. Faced with the difficulty of winning the legal arguments, proponents of the war, particularly the United States and the United Kingdom, increasingly emphasized the moral argument against leaving Saddam Hussein in power. In the words of Tony Blair: “[t[t] moral case against he war has no moral answer: it is the moral case for removing Saddam. It is not the reason we act . . . But it is the reason, frankly, why if we do have to act, we should do so with a clear conscience.”
According to Gareth Evans, co-chair of the ICISS, the misuse of moral arguments to justify the invasion and the insistence that the international community had a responsibility to act was the “biggest inhibitor of all to the ready acceptance of [t[the RTP]s an operating principle.” Evans argued that, even if the threshold issue of “just cause” was met, the other triggering conditions, particularly that “the results of military action would not be worse than taking no action,” were certainly not satisfied.
While Evans may be correct, it is also the case that the ambiguities surrounding the RTP as a framework for intervention facilitated the misuse of the doctrine. The decision to intervene in another country is never an easy decision, and ambiguity within the RTP only exacerbates this difficulty. Moreover, it increases the chance that the Security Council, central to the legitimacy of intervention, will be bypassed. As the ICISS recognized:
A series of ambiguous resolutions and conflicting interpretations have arisen over the extent and duration of the authority conferred by the Security Council. These were most notable in the operations against Iraq throughout the 1990s and in the Kosovo War in 1999. The weakening of formal requirements may have undermined the substantive provisions of the Charter’s collective security system and contributed to facilitating actions in advance of Council authorisation [s[sic]or indeed without it.
For example, attempts to introduce a threshold for action have been criticized as potentially restricting timely and effective measures by the Security Council. The establishment of military action as a “last resort” has been characterized as an unnecessary burden on the Security Council, which would have to “patiently wend its way through diplomatic measures and economic sanctions” before it could use military measures to end genocide. However, as long as it is not clear that a State has failed to live up to its responsibility, it could be argued (and likely will always be argued) that the residual responsibility of the international community has not yet been triggered. Thus, establishing a definitive threshold for action is necessary to legitimize any subsequent intervention. Substantive criteria establish a clear benchmark against which to judge the humanitarian claims of States.
A problem arises, however, with respect to proportionality. Although the RTP emphasizes that military force should not be the first choice, and that the Security Council should only consider such action as a “last resort” (an affirmation of the general applicability of the proportionality principle in international law), it is hardly conceivable that this principle could substantively limit Security Council action with regard to genocide or other serious crimes. Do all violations of the RTP demand the same type of intervention?
The presence of ambiguity, however, should not doom the RTP, as some commentators have suggested. Although the ambiguities make clear that there remains a great deal of incoherence about what exactly the RTP means, particularly with regard to how it would shape the response to the next humanitarian crisis, they are merely a natural artifact of the doctrine’s evolution. The international community must continue to refine the RTP, but this fact alone should not paralyze it when it is faced with gross and systematic violations of human rights that affect every precept of our common humanity. Faced with such a violation, the stakes are too high, and the costs of inaction too great.
This indolence is being reflected in Syria. The veto power has been used by Russia and China to reject draft resolutions merely condemning Syria for “failing to halt the worsening, bloody violence that has consumed the Middle East nation.” Violence has flared across the Syrian countryside, even as the Syrian government continues to claim that the country is a “sea of tranquility.” As Secretary-General Ban Ki-moon lamented, “[d[d]pite assurances from the government, there has been no meaningful progress on the ground. This is unacceptable.”
The situation in Syria is deteriorating; it is getting worse with each increasing day. But it is becoming increasingly clear that the international community is paralyzed in its response. Russia, a permanent member of the Security Council and Syria’s strongest defender, has vowed to veto any effort authorizing military intervention. And under current international law, there is nothing preventing Russia from doing so.
While a Chapter 7 Security Council Resolution, which would permit the use of military force, should always be the “last resort,” it should not be a practical impossibility. The international community should not hasten itself into military conflict, but the situation in Syria highlights the inadequacies of international law in the face of humanitarian crises.
The international community must therefore recognize the RTP as a binding obligation under positive international law. And in order to ensure the legitimacy of the doctrine, the U.N. Charter must be amended to make the Security Council more representative of the General Assembly and the veto power must be reformed. As a permanent member of the Security Council, and a global leader in the promotion and protection of human rights, the United States should take “The Mantle of Leadership” and lead the charge in doing so. The only real failure is a failure to try.
Note: This article is Part Six in, and the conclusion of, a series of articles, entitled “Syria and ‘The Mantle of Leadership,'” produced by Of Politics and Men and exploring the international communities responsibility to both promote and protect human rights. A list of all articles in this series can be found in the Archives.