The Responsibility to Protect: Getting the Law Right Matters

In a January 25th op-ed (published online December 19th) the usually reliable Christian Science Monitor praises the 54-nation African Union (AU) for deciding to deploy 5,000 troops to strife-ridden Burundi – over that nation’s objections.  Citing what it sees as UN Security Council inaction, the Monitor claims

The move was the first time the AU has invoked a rule to intervene in a country without its consent in order to prevent a mass atrocity. This rule, known as “the responsibility to protect” was adopted by UN itself a decade ago.

Actually, there is no UN “rule,” per se, known as “the responsibility to protect” (RTP), and the implication that one exists that can justify a military intervention into a sovereign country over its objections does violence to the principle of the rule of law, and portends a further erosion of international law’s ability to limit the use of force.

To be sure, there is a grave situation in Burundi. On on January 19th the US said it was “deeply alarmed by reports…serious human rights violations and abuses in Burundi, including eyewitness reports of mass graves, a sharp increase in alleged enforced disappearances and torture, and reports of sexual violence by security forces.”  It (very rightly in my view) called upon Burundi to “permit an immediate, impartial investigation into these recent allegations and to hold accountable all those found responsible for crimes.”

Importantly, the US position is that “the only way to resolve the crisis gripping the country is for all parties to agree promptly to engage in internationally-mediated, inclusive dialogue without preconditions.” Of course, this is not the same thing as calling for deploying military force as the Monitor does.

What is RTP? As one writer puts it, RTP “insists that states have a responsibility to protect their own citizens from war crimes, crimes against humanity, genocide and ethnic cleansing. If a state is unwilling or unable to do so, R2P dictates that the international community assumes that responsibility.” In it is the legal scope and authority of that “responsibility” that is in question here.

In an excellent 2013 paper, Jay Crush , then of the University of Kent, explains that RTP is not a legal concept, but rather a political one. He points out that it was never intended to justify the use of force outside the UN’s existing legal architecture. That structure permits the lawful use of force over the objection of the state concerned in only two situations: 1) based on a UN Security Council resolution (USCR); or 2) based on self-defense pursuant to Article 51. Neither condition exists today to legalize the incipient military invasion the Monitor lauds.

RTP can, however, be used to justify and support a UNSCR, but not to substitute for it. And there is history of RTP-based UNSCRs worthy of examination. That said, it is also true that there are instances of the use of force outside of the UN process.  For example, NATO’s 1999  bombing campaign against Serbia (Operation Allied Force) did not have the backing of a UNSCR specifically authorizing the use of force, and its rationalization is often bumper-stickered as “illegal but justified.”

But the wisdom of that reasoning has been energetically attacked by Athea Roberts (and others) who persuasively argue its dangers. Roberts contends, among other things, that “[a]ttempting to completely divorce legality and legitimacy can ossify the law and undermine its relevance, which increases the risk of self-serving exceptionalism.”  I agree; it is a mistake, in my opinion, to think of Allied Force as establishing a new international norm.

Lawyers like to say that “bad facts make bad law” – and that could be at play here.  A terribly urgent situation may indeed exist in Burundi that needs to be promptly addressed, but let’s not pretend that the decision to deploy troops as the solution fits within current international law, or that some existing “UN rule” permits it absent Security Council approval.   Sure, the law may need to be changed, but if RTP is to be celebrated as a concept that can by itself obviate the current prohibitions on the use of military forces, we have to be prepared for other actors to use it in a way that may not be to our liking.