Responsibility to Protect: Emerging Rules on Humanitarian Intervention?

Abstract

This article discusses different forms of military force under or linked to the principle of the responsibility to protect (R2P) in relation to international law, with particular emphasis on humanitarian intervention. It contributes to the ongoing debate by analysing and separating the lawful forms of military force falling under Pillars II and III of the R2P from unlawful claims and extensive interpretations of R2P. Apart from the already existing legal right of the Security Council to authorise humanitarian interventions, it is argued that there are no ongoing legal customary developments of similar rights or obligations for other actors to intervene in another state (without consent) to protect populations by military force against grave crimes under the principle of R2P. The argumentation is based on a series of case studies of humanitarian interventions by the Security Council, regional organisations and “coalitions of willing states”. The article also includes legal analysis on the Uniting for Peace Procedure and the prior treaty-based consented rights to intervention under the African Union Act and the 1999 ECOWAS Protocol on the Mechanism for Conflict Prevention.

Notes

1. The article is primarily focused on the military aspects of R2P, which is a small and last resort measure to protect against mass atrocity crimes, and the analysis will thus not include the wide variety of peaceful and non-military measures to protect under Pillars I, II or III of R2P. About the three Pillars see: Implementing the Responsibility to Protect. Report of the Secretary-General, 12 January 2009, UN Doc A/63/677, 2009, para. 61 (hereinafter the Secretary-General's 2009 report). Security Council Resolution 1970 (2011) on the situation of Libya exemplifies and illustrates some available non-military enforcement measures under Chapter VII of the UN Charter (Article 41) and Pillar III of R2P. It imposed an arms embargo, referral to the International Criminal Court, and targeted sanctions (travel bans and freezing of assets) in order to protect the civilians in Libya. The variety of measures available under the other two Pillars are not possible to encompass in a brief note.

2. The case studies have been conducted in a doctoral dissertation in public international law, successfully defended in December 2008 at the Faculty of Law, Stockholm University: Diana Amnéus, Responsibility to Protect by Military Means—Emerging Norms on Humanitarian Intervention? (Doctoral Thesis, Stockholm University 2008).

3. Carsten Stahn, “Responsibility to Protect: Political Rhetoric of Emerging Legal Norm?”, American Journal of International Law, Vol. 101, No. 1 (2007), pp. 102, 110.

4. The international relations (IR) research on international norms in general has to a large extent treated norms in a broader sense and has not always been concerned with distinguishing legal norms from other norms (for example political, social, moral or cultural), see Amnéus, Responsibility to Protect, op. cit., pp. 30, 48–50, and 53–58 (which specifically discusses IR constructivist perspectives on international norms by Friedrich Kratochwil, Nicholas Onuf, Anthony Clark Arend, Christine Sikkink, Martha Finnemore, Richard Price, and Nicholas Wheeler).

5. Cf. Jutta Brunnée and Stephen J. Toope, “The Responsibility to Protect and the Use of Force: Building Legality?”, Global Responsibility to Protect, Vol. 2, No. 3 (2010), pp. 191–212, which takes a much broader approach in their analysis on R2P as an emerging norm in international law than the legal positivist approach in this article. However, their analysis on the emerging norm of R2P is based on an “interactional account of international law”, building on an interdisciplinary ontology drawing together insights from the legal theory of Lon Fuller and constructivist approaches to international law. They critique traditional legal analysis on customary or treaty law as not sufficiently nuanced and purport to provide a framework with a richer understanding of the emergence and evolution of legal norms than “analysis that uses the customary or treaty status of a norm as the sole indicator of legality”, see ibid., pp. 193, 203. Although traditional legal analysis may be considered less rich there is a value in contrasting different analyses based on distinct perspectives and complementing ontologies as well as their possible divergent or similar outcomes. See also a commentary on the theory of interactional international law, Amnéus, Responsibility to Protect, op. cit., pp. 50–53, and on contrasting theories, p. 21.

6. Brunnée and Toope, op. cit., p. 193. Stahn asserts that the uncertainty surrounding the consequences of non-compliance sheds doubts on the notion that the R2P was meant to be an emerging hard norm of international law at all, instead of soft law or a political principle, Stahn, op. cit., pp. 101, 118.

7. I address solely the specific “legal rules or emerging legal rules” under the principle or norm of R2P that regulates the military aspects of the R2P. Cf. broader legal analysis on the principle of R2P as a whole (both non-military and military aspects) in e.g. Stahn, op. cit.; Ekkehard Strauss, “A Bird in the Hand is Worth Two in the Bush—On the Assumed Legal Nature of the Responsibility to Protect”, Global Responsibility to Protect, Vol. 1, No. 3 (2009), pp. 291–323.

9. The definition used in this article thus covers 1) Security Council authorised humanitarian interventions, carried out either by one state, a group of states, or a regional organisation; and 2) unauthorised humanitarian interventions carried out by either a regional organisation, or a single state or a less institutionalised group of states (“coalitions of the willing”). Cf. a similar definition is used in J.L. Holzgrefe, and Robert O. Keohane (eds), Humanitarian Intervention. Ethical, Legal, and Political Dilemmas (Cambridge: Cambridge University Press, 2003), p. 18. The application of the word “humanitarian” when referring to the use of force has been challenged by voices from the humanitarian arena, arguing that military force can never be compatible with the promotion of humanitarian ends, and that the words “humanitarian” and “intervention” should not be paired at all, despite the humanitarian purpose of such interventions. Organisations working in the field, such as Oxfam, the ICRC and Médecins Sans Frontières advocate for visible separation between military interventions and humanitarian assistance. The non-separation of such operations confuses the local population and makes it difficult for the humanitarian organisations to carry out their activities. Michael Feher, “Constancy in Context”, Wisconsin International Law Journal, Vol. 24, No. 3 (2006), p. 780 et seq. These are weighty arguments and there are obvious reasons for making efforts to achieve such separations in the field. But for the purpose of the theoretical argumentation in this article I shall use the terminology “humanitarian intervention”, as it has been traditionally used in the scholarly literature. Although the concept of humanitarian intervention to some appears as an oxymoron, it is also argued that its apparent need in certain situations legitimises it. Wheeler and Levitt conclude that the cases of Rwanda and Cambodia could not have been prevented through non-violent humanitarian intervention, see Nicholas J. Wheeler, “Legitimating Humanitarian Intervention: Principles and Procedures”, Melbourne Journal of International Law, Vol. 2, No. 2 (2001), pp. 553–554; Jeremy I. Levitt, “The Responsibility to Protect: A Beaver without a Dam?”, Michigan Journal of International Law, Vol. 53 (2003–2004), p. 155.

8. Variations depend on the inclusion or exclusion of the authorisation of the Security Council, on interventions for the protection of the intervening states' own nationals, the existence of consent or not by the state that is the subject of intervention, and different formulations of situations of human rights violations for which such intervention is taken to remedy. Cf. Rudolf Bernhardt and Peter Macalister-Smith (eds), Encyclopedia of Public International Law, Vol. 2 (Amsterdam: Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, 1995), p. 926 et seq; Cf. Bruno Simma (ed.), The Charter of the United Nations. A Commentary, Vol. I (Oxford: Oxford University Press, 2002), p. 130 et seq; Terry D. Gill, “Humanitarian Intervention: Legality, Justice and Legitimacy”, The Global Community Yearbook of International Law and Jurisprudence, Vol. 4, No. 1 (2004), pp. 53–56; International Commission on Intervention and State Sovereignty, Responsibility to Protect (Ottawa: International Research Centre, 2001), p. 8 (hereinafter the ICISS report); Sean D. Murphy, Humanitarian Intervention. The United Nations in an Evolving World Order, Procedural Aspects of International Law Series 21 (Philadelphia: University of Pennsylvania Press, 1996), pp. 11–12.

10. World Summit Outcome, General Assembly Resolution 60/1, 15 September 2005, UN Doc A/RES/60/1, 2005 (hereinafter the Outcome Document).

11. Arguments de lege ferenda describe how the law should be as opposed to arguments de lege lata, i.e. arguments based on law as it is, that is proper law (legally binding).

12. The ICISS report, op. cit., pp. XIII, 47–55. At the same time the Commission stresses that the credibility of the UN may suffer as a result, and that the task is not to find alternatives to the Security Council, but to make it work much better than it does at present.

13. The R2P criteria and principles that have been utilised in the case studies of the dissertation are a combination of the R2P criteria endorsed in the UN World Summit Outcome Document in 2005 and the precautionary principles for military intervention proposed by the ICISS report. I have investigated the presence of the following criteria in the Security Council cases: grave crimes in international law (genocide, war crimes or crimes against humanity), the state manifestly failing to protect its population from such crimes, and the inadequacy of peaceful means. In the cases of unauthorised humanitarian intervention I have also looked at Security Council failure to protect; second, compliance with the precautionary principles for military intervention (a right intention, last resort, proportional means, and reasonable prospects of success); and third, the responses from other states on the interventions and the extent the interventions met with support, protests or acquiescence by other states (existence of opinio juris). See Amnéus, op. cit., pp. 258–275, and chapters 6.3.3., 8.2. and 8.4.1.

14. William R. Pace and Nicole Deller, “Preventing Future Genocides: An International Responsibility to Protect”, World Order, Vol. 36, No. 4 (2005), p. 27.

15. It has been argued that this was largely due to United States' pressure that the Summit agreement removed this proposed language. Bannon states that this gap leaves permanent members with a powerful negotiation tool permitting bad faith vetoes in the face of clear atrocities, see Alicia L. Bannon, “The Responsibility To Protect: The U.N. World Summit and the Question of Unilateralism”, Yale Law Journal, Vol. 115 (2006), p. 1160.

16. Frederic L. Kirgis, “International Law Aspect of the 2005 World Summit Outcome Document”, ASIL Insights, available: <http://www.asil.org/insights/2005/10/insights051004.html> (accessed 28 March 2006). Kirgis bases this assessment on a rather narrow view of the Security Council powers to act under Chapter VII. He states that the Council's authority to use force under Chapter VII remains somewhat controversial if the mass violence in question were to take place entirely “within” a state.

17. Although it should be the point of departure (rather than the ICISS formulation of R2P), I agree with Brunnée and Toope in that the Summit Outcome should not be treated as the culmination of the norm building process, but rather as a platform for further normative interaction and deliberation. Brunnée and Toope, op. cit., p. 204.

18. For example the intervention in Iraq in March 2003, which despite the various legal justifications provided by the US and UK has been determined illegal, see Ralph Zacklin, The United Nations Secretariat and the use of Force in a Unipolar World: Power v. Principle (Cambridge: Cambridge University Press, 2010), p. 147; Marie Jacobsson, “The Use of Force and the Case of Iraq”, in Diana Amneus and Katinka Svanberg-Torpman (eds), Peace and Security. Current Challenges in International Law (Lund: Studentlitteratur, 2004), pp. 327–372.

19. See Pace and Deller, op. cit., p. 27, which furthermore states that the final text on R2P of the Outcome Document is weaker than in the High-Level Panel or the Secretary-General's report.

20. Cf. a slightly different view (implicit recognition) in Stahn, “Responsibility to Protect: Political Rhetoric of Emerging Legal Norm?”, op. cit., pp. 108–109.

21. Independent International Commission on Kosovo, Kosovo Report. Conflict, International Response, Lessons Learned (New York: Oxford University Press, 2000), pp. 4, 10. For an analysis of the relationship between legality, legitimacy, morality and constitutionality, see Ian Clark, Legitimacy in International Society (Oxford: Oxford University Press, 2005), pp. 207–226.

22. Alex J. Bellamy, “Whither the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit”, Ethics and International Affairs, Vol. 20, No. 2 (2006), pp. 165–166.

23. UN High-Level Panel, A More Secure World: Our Shared Responsibility (New York: United Nations, 2004), paras. 207–208; Kofi Annan, In Larger Freedom. Towards Development, Security and Human Rights for All. Report of the Secretary-General, (New York: United Nations Publications, 2005), para. 126.

24. The Secretary-General's 2009 report, op cit.

25. I have investigated the presence of the following criteria of the endorsed R2P criteria in para. 139 of the Outcome Document: 1) existence of grave crimes in international law (genocide, war crimes, crimes against humanity or ethnic cleansing); 2) the state manifestly failing to protect its population from such crimes; and 3) peaceful means found inadequate. Besides these specific R2P criteria, the requirements under Chapter VII of the UN Charter have also been uniformly complied with in the cases of authorised humanitarian interventions. See note 13.

26. Brunnée and Toope, op. cit., p. 209.

27. Byers, Michael, “High ground lost on UN's responsibility to protect”, Winnipeg Free Press (19 September 2005).

28. Ibid., p. 208; Cf. Stahn, op. cit., p. 109.

29. Stahn, op. cit., pp. 108–109; See a less firm stance on this issue in Brunnée and Toope, op. cit., p. 208.

30. Amnéus, Responsibility to Protect, op. cit., pp. 305–306. See also a similar standpoint in José Alvarez, “The Schizophrenias of R2P”, Panel Presentation at the 2007 Hague Joint Conference on Contemporary Issues of International Law: Criminal Jurisdiction 100 Years After the 1907 Hague Peace Conference, American Society of International Law, available: <http://www.asil.org/pdfs/r2pPanel.pdf> (accessed on 13 January 2008), p. 3.

31. Bellamy, op. cit., p. 168.

32. Brunnée and Toope, op. cit., p. 208.

33. See “Frequently Asked Questions”, Global Centre for the Responsibility to Protect, available: <http://globalr2p.org/pdf/FAQ.pdf> (accessed 17 July 2008). See also Bellamy, op. cit., p. 164; Pace and Deller, op. cit., p. 29.

34. Cf. Alex J. Bellamy, “Preventing Future Kosovos and Future Rwandas: The Responsibility to Protect after the 2005 World Summit”, Policy Brief No. 1 of the Initiative Ethics in a Violent World: What Can Institutions Do? (New York: Carnegie Council, 2006), p. 5, available: <http://www.carnegiecouncil.org/media/Bellamy_Paper.pdf>; Stahn, op. cit., p. 109; See also Bannon, op. cit., p. 1161.

35. “State-by-State Positions on the Responsibility to Protect”, Responsibility to Protect—Civil Society (11 August 2005), available: <http://www.responsibilitytoprotect.org/index.php/civil_society_statements/294> (accessed on 11 October 2005).

36. The Secretary-General's 2009 report, op. cit.

37. The GCR2P Report, “Implementing the Responsibility to Protect. The 2009 General Assembly Debate: An Assessment”, Global Centre for the Responsibility to Protect, (August 2009), available: <http://globalr2p.org/media/pdf/GCR2P_General_Assembly_Debate_Assessment.pdf> (accessed 1 September 2009), p. 2. For a fuller account of the member states' positions in the debate, see the presentation in Brunnée and Toope, op. cit., p. 199 et seq.

38. The GCR2P Report, “Implementing the Responsibility to Protect. The 2009 General Assembly Debate: An Assessment”, op. cit., p. 4. The President of the General Assembly, Miguel d'Escoto Brockman of Nicaragua, also questioned the legitimacy of R2P and maintained in his concept note on R2P at the informal interactive dialogue session of the 2009 Assembly Debate (23 July 2009) that the UN Charter prohibits the Council from taking coercive measures to alleviate suffering (see ibid., p. 3, for a summary).

39. Ibid., pp. 6–8; See also the assessment by Brunnée and Toope, op. cit., p. 200.

40. “Early warning, assessment and the responsibility to protect. Report of the Secretary-General”, 14 July 2010, UN Doc A/64/864, 2010.

41. See Nicaragua Statement in the General Assembly, “Debate Interactiva de la Asamblea General. Alerta temprana y evaluación y la responsibilidad de proteger, 9 de Agosto de 2010”, International Coalition for the Responsibility to Protect, (August 2010) available: <http://www.responsibilitytoprotect.org/Nicaragua%20-Statement%20to%20the%20dialogue%20on%20early%20warning%20and%20RtoP.pdf> (accessed 31 August 2010), para. 3. From an international law perspective, however, the UN Charter is still in force, to be applied and respected by its member states, including the interpretation and application of the Charter by the Security Council. Although its legitimacy may be questioned, the legality of its decisions is more difficult to challenge as ultra vires. See infra note, pp. 261–262.

42. GCR2P Report, “‘Early Warning, Assessment, and the Responsibility to Protect’: Informal Interactive Dialogue of the General Assembly held on 9 August 2010”, Global Centre for the Responsibility to Protect (September 2010), available: <http://globalr2p.org/media/pdf/GCR2P_Report__Informal_Interactive_Dailogue_2010.pdf> (accessed 1 October 2010, p. 8.

43. Ibid., p. 8. Cf. the discussion on the possible scenarios for the applicability of R2P, identifying only ten to twelve country situations that would qualify. Strauss, op. cit., p. 312 et seq.

44. See and compare the formulations on military force under the Chapters on Pillar II, paras. 29, 40–42 and on Pillar III, paras. 56–58, 62–63, the Secretary-General's 2009 report, op. cit.

45. This is the traditional form of peace-keeping that first developed in the early Cold War period. Ove Bring, FN-stadgan och världspolitiken. Om folkrättens roll i en föränderlig värld, 4th edition (Stockholm: Norstedts Juridik, 2002), p. 278.

46. If the Security Council has authorised a regional organisation to use military force under Chapter VII, it would also be considered as an application of Article 53 of Chapter VIII of the Charter.

47. General Assembly Resolution 377 (V), 3 November 1950, UN Doc A/RES/377 (V).

48. ICISS report, p. 54; Ryan Goodman, “Humanitarian Intervention and Pretexts for War”, American Journal of International Law, Vol. 100, No. 1, (2006), pp. 108–109, 111; Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford: Oxford University Press, 2001), p. 49; Gareth Evans and Mohamed Sahnoun, “The Responsibility to Protect”, Foreign Affairs, Vol. 81, No. 6 (2002), p. 107; A.P.V. Rogers, “Humanitarian intervention and International law”, Harvard Journal of Law and Public Policy Vol. 27, No. 3 (Summer, 2004), p. 735. For a different view: Fernando R. Téson, Humanitarian Intervention: An Inquiry into Law and Morality, 3rd edition (Ardsley: Transnational Publishers, Inc., 2005), p. 330. He argues that states can and may act to stop carnage if the Security Council fails to act in such cases and abdicates its responsibilities; see also Oscar Schachter, “The Lawful Resort to Unilateral Use of Force”, Yale Journal of International Law, Vol. 10 (1984–1985), p. 291.

49. Cf. Secretary-General's 2009 report, op. cit. paras. 29, 40–42.

50. Traditional “peace-keeping” is characterised by the consent of the parties, impartiality and the non-use of force except for self-defence by the peace-keepers, see Ola Engdahl, Protection of Personnel in Peace Operations. The Role of the “Safety Convention” against the Background of General International Law (Leiden: Martinus Nijhoff Publishers, 2007), pp. 15–16. Traditional tasks have been to monitor ceasefires or buffer zones. In 1973, new guidelines were issued for the use of force in relation to UNEF II, which has formed the basis of all subsequent peace-keeping operations. It includes a broader understanding of self-defence including “resistance to attempts by forceful means to prevent the force from discharging its duties under the mandate of the Security Council”, see Ralph Zacklin, “The Use of Force and Peacekeeping Operations”, in Niels Blokker and Nico Schrijver (eds), The Security Council and the Use of Force. Theory and Reality—A Need for Change? (Leiden: Koninklijke Brill NV, 2005), p. 94. New tasks have included the facilitation of humanitarian assistance, and protection of civilians at risk in their close vicinity. Such use of force has been interpreted as part of a broadened notion of self-defence.

51. The second generation of peace-keeping operations includes multifunctional tasks beyond the elements of impartiality, consent and only self-defence. “Expanded peace-keeping operations” with broader mandates are backed up with operational consent from the host government. These more robust peace-keeping forces are made to be prepared to face lack of consent by some local parties in an armed conflict, and may become involved in combat operations acting in self-defence in parts of a mission area. See Engdahl, op. cit. p. 17.

52. Amnéus, Responsibility to Protect, op. cit., chapter 7.1.3.

53. If the authorisation involves a regional organisation also Chapter VIII (Article 53) is applied.

54. Amnéus, Responsibility to Protect, op. cit., chapter 6.4.

55. Unless when a Chapter VII mandate goes beyond the host state consent and also in those instances where the host state consent is withdrawn from certain peace-keeping elements but the Chapter VII mandate is remaining as the legal basis for those operations.

56. Kristina Powell, The African Union's Emerging Peace and Security Regime. Opportunities and Challenges for Delivering on the Responsibility to Protect (Pretoria: Institute for Security Studies, 2005), pp. 43–44, 47.

57. Security Council Resolution 1556, 30 June 2004, UN Doc S/RES/1556, preambular para. 9. The deployment of the AU mission, as well as the extension of the mandate, was not authorised by the Security Council. But its initial launch in June 2004 was welcomed by the Council and its extensions and expanded mandates were also given its support. The mandate was extended by the AU Peace and Security Council on 20 October 2004 in order to transform AMIS to a fully-fledged peace-keeping mission, and to include the protection of civilians in its mandate (AMIS II). The government of Sudan insisted that it retained the primary responsibility for the protection of civilians, which was also confirmed by the Security Council. Consequently, the mission took on itself a rather weak protection mandate that was dependent on the consent of Sudan. Sudan refused to accept a broad civilian protection mandate, but a compromise was made where AMIS was charged with the task of protecting civilians it encountered under imminent threat in the immediate vicinity, within its resources and capability, see Amnéus, Responsibility to Protect, op. cit., pp. 426–427.

58. The agreement was reached after two days of tripartite negotiations in Addis Ababa between the UN, the AU and Sudan, see Lydia Polgreen and Warren Hoge, “Sudan Relents on Peacekeepers in Darfur”, The New York Times (13 June 2007), available: <http://www.nytimes.com/2007/06/13/world/africa/13darfur.html?_> (accessed 14 June 2007).

59. Security Council Resolution 1769, 31 July 2007, UN Doc S/RES/1769, operative paras. 1 and 15. Engle has argued that the consent of the government to deploy the hybrid AU/UN force might be a by-product of the failure to call the situation genocide. Karin Engle, “‘Calling in the Troops’: The Uneasy Relationship among Women's Rights, Human Rights, and Humanitarian Intervention”, Harvard Human Rights Journal, Vol. 20 (2007), p. 216.

60. See the statement by China in the position of the President of the Security Council, S/PV.5927, 31 July 2007, UN Doc S/PV.5927, p. 10.

61. See for example the cases mentioned in Victoria K. Holt and Tobias C. Berkman, The Impossible Mandate? Military Preparedness, the Responsibility to Protect and Modern Peace Operations (Washington DC: The Henry L. Stimson Center, 2006).

62. General Assembly Resolution 377 (V) (1950).

63. The former Soviet Union criticised the Resolution for violating international law and the UN Charter, in particular Articles 11 and 12 of the Charter, see Bring, op. cit., pp. 234–235.

64. Brownlie argues that these instances of practice presumably prevent the critics from reopening the question of interpretation, Ian Brownlie, International Law and the Use of Force by States (Oxford: Oxford University Press, 1963), p. 334. He mentions the existing cases up to the publication of his book in 1963: Suez (1956), Lebanon (1958) and Congo (1960), but not the case of Hungary (1956); cf. also Chesterman, op. cit., p. 119. Chesterman believes the question of legality to probably be moot despite these cases.

65. Emergency Special Sessions, UN General Assembly, available: <http://www.un.org/ga/sessions/emergency.shtml>, (accessed 13 March 2008); Bring, op. cit., p. 239.

66. See e.g. J.L. Holzgrefe, “The Humanitarian Intervention Debate”, in J.L. Holzgrefe and Robert O. Keohane (eds), Humanitarian Intervention. Ethical, Legal, and Political Dilemmas (Cambridge: Cambridge University Press 2003), p. 48; Peter Hilpold, “The Duty to Protect and the Reform of the United Nations—A New Step in the Development of International Law”, in Armin von Bogdandy, Rüdiger Wolfrum and Christian Philipp (eds), Max Planck Yearbook of United Nations Law (Leiden/Boston: Martinus Nijhoff Publishers, 2006), pp. 51–52; Bring, op. cit., p. 234.

67. General Assembly Resolution 498 (V), 5 November 1951, UN Doc A/RES/498 (V). The case of Korea, however, has been challenged as a precedent for the Uniting for Peace Procedure, owing to the purported existence of earlier Security Council Resolutions 83 and 84 (1950) recommending and authorising all necessary assistance to the United Nations and the Republic of Korea to repel the armed attack, including using military force under the unified command of the United States of America. The General Assembly Resolution only expressed its support for the action according to Gustaf Lind, The Revival of Chapter VIII of the UN Charter. Regional Organisations and Collective Security (Stockholm: Stockholm University, 2004), p. 174; See Security Council Resolution 83, 27 June 1950, UN Doc S/RES/83; SC Res. 84, 7 July 1950, UN Doc S/RES/84; Frowein and Krisch argue that the Security Council recommendation was not a binding decision under Article 42, but should rather be interpreted as a recommendation of collective self-defence under Article 51, see Frowein/Krisch, “Article 39”, Bruno Simma (ed.), The Charter of the United Nations. A Commentary, 2nd edition (Oxford: Oxford University Press, 2002), pp. 727–728, para. 30.

68. General Assembly Resolution 498 (V), 5 November 1951, UN Doc A/RES/498 (V) for the Korea Case, para. 4; General Assembly Resolution 1000 (ES-I), 5 November 1956, UN Doc A/RES/1000 for UNEF; General Assembly Resolution 1474 (ES-IV), 16 September 1960, UN Doc A/RES/1474 for the Congo case.

69. “Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter)”, Advisory Opinion, 20 July 1962: ICJ Reports, 1962, pp. 164–165.

70. Amnéus, Responsibility to Protect, op. cit., pp. 387–390.

71. Secretary-General's 2009 report, op. cit., para. 40. (Italics by author.)

72. Outcome Document, para. 139; The Secretary-General's R2P report on implementing R2P, paras. 62, 64–65.

73. A variety of such peaceful Pillar III measures were well reflected in Security Council Resolution 1970 on the situation in Libya (2011). These non-military measures will, however, not be part of the analysis in this article.

74. See the case studies in Amnéus, Responsibility to Protect, op. cit., chapter 6.3.3.; Cf. Chesterman, op. cit., chapter 4.

75. Security Council Resolution 770, 13 August 1992, UN Doc S/RES/770; SC Res. 816, 31 March 1993, UN Doc S/RES/816; Security Council Resolution 836, 4 June 1993, UN Doc S/RES/836.

76. It has for example determined internal armed conflicts, humanitarian crisis, systematic and widespread violations of humanitarian law and human rights, disruption of democracy, and large-scale international terrorism to constitute a threat to the peace. See Amnéus, Responsibility to Protect, op. cit., pp. 323–330; Barbara von Tigerstrom, Human Security and International Law. Prospects and Problems (Portland: Hart Publishing, 2007), p. 70; Inger Österdahl, Threat to the Peace. The interpretation by the Security Council of Article 39 of the UN Charter (Uppsala: Iustus förlag, 1998), p. 85; Chesterman, op. cit., p. 125.

77. See Amnéus, Responsibility to Protect, op. cit., pp. 381–382. Subsequent practice by the Security Council under the UN Charter, if unchallenged on the whole, may determine the more precise meaning of the words in the UN Charter, according to Téson, op. cit., p. 288. However, those scholars advocating a more restrictive approach to Article 39 and the meaning of “peace” as well as to the limits of the Security Council powers under the Charter may regard the Council practice as contrary to the wording of the UN Charter and might therefore prefer to argue it to constitute an informal modification of the UN Charter contra legem in the same manner with respect to the modifications of Article 27 (3) of the UN Charter.

78. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (VCLT).

79. Preliminary rules on informal modification by subsequent practice were included in the International Law Commission (ILC) Draft Articles to the VCLT (op. cit.) but were not retained in the convention. Nevertheless, the ILC Commentaries to these draft rules are often referred to in the specification of criteria applicable for this form of informal modification of treaties. The ILC specified the means for this form of modification: “[A] consistent practice, embracing all the parties and establishing their common consent to the application of the treaty in a manner different from that laid down in certain of its provisions, may have the effect of modifying the treaty”, YILC, vol II (1964), p. 198; YILC, vol II (1966), p. 236. Two international cases have confirmed the two relevant criteria of “consistent practice” and “common consent” for informal modification of treaties: the Temple of Préah Vihéar Case (Cambodia v. Thailand, ICJ Reports, 1962, p. 6, p. 33–34) and the Air Services Agreement Arbitration (Decision of the Arbitration Tribunal established pursuant to the Arbitration Agreement signed in Paris on 22 January 1963, between the United States of America and France, 3 I.L.M. 668, 1963, p. 716), see further in Amnéus, Responsibility to Protect, op. cit., chapters 2.5.3 and 2.5.4.

80. Despite that the notion of R2P was non-existent at the time of the Council practice, case studies of Bosnia, Somalia and Rwanda reveal that the “R2P criteria” (see supra note 13) were uniformly complied with by the Council. The concerned states were considered unable or unwilling, or manifestly failing to protect their populations from grave crimes in international law and peaceful means were found inadequate under Article 42 of the UN Charter. See Amnéus, Responsibility to Protect, op. cit., chapter 6.3.3.

81. Frowein/Krisch, op. cit., p. 724, para. 18; Österdahl, op. cit., p. 19; Thomas G. Weiss, “Humanitarian Intervention. War and Conflict in the Modern World” (Cambridge: Polity Press, 2007), p. 49; Paul D. Williams and Alex J. Bellamy, “The Responsibility to Protect and the Crisis in Darfur”, Security Dialogue, Vol. 36, No. 1 (2005), pp. 40–41; Strauss, op. cit., p. 319.

82. Chesterman, op. cit., pp. 128, 139, 151, 157; Sir Robert Jennings, Sir Arthur Watts (eds), Oppenheim's International Law. Vol 1, Peace. Introduction and Part 1, 9th edition (Edinburgh: Pearson Education Limited, 1992), pp. 442–443; Christopher Greenwood, “Is there a Right of Humanitarian Intervention?”, The World Today, Vol. 49, No. 2 (1993), pp. 34–40, p. 39; Susan Breau, Humanitarian Intervention: The United Nations and Collective Responsibility (London: Cameron May International Law and Policy, 2005), p. 240. Holzgrefe, op. cit., p. 43; Alex J. Bellamy, “Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention after Iraq”, Ethics and International Affairs, Vol. 19, No. 31 (2005), p 33; Téson, op. cit., pp. 279, 281, 284, 329; For a more cautious view see Rosalyn Higgins, Problems and Process. International Law and How We Use It (Oxford: Oxford University Press, 1994), pp. 254–257, and for a totally opposite view, see Michael J. Glennon, Limits of Law, Prerogatives of Power. Interventionism after Kosovo (New York: Palgrave, 2001), pp. 112, 114, 120–122, 142. Glennon argues that to permit the Security Council to intervene in the domestic affairs of a state would constitute nothing less than the creation of a provision de novo. He critiques the Council in its attempts to alleviate intrastate violence, and is not convinced that the Council's practice has led to an informal modification of the UN Charter by subsequent practice. Instead he believes that this new practice has contributed to the erosion of the Charter's constraints on the use of force. In his view a threat to the peace must include a threat of action by a state that is violent, and secondly that the threat has cross-border effects. This very restrictive position has partly become overruled by post-Cold War practice and post-9/11 events and responses, which have broadened the notion of threat to the peace to cover threats and use of force by non-state actors, within states and also without cross-border effects.

83. Frowein/Krisch, op. cit., p. 723, para. 18.

84. See Vladimir Kartashkin, “Human Rights and Humanitarian Intervention”, in Lori Fisler Damrosch and David J. Scheffer (eds), Law and Force in the New International Order (Boulder: Westview Press, 1991), pp. 202–211; Lori Fisler Damrosch, “Commentary on Collective Military Intervention to Enforce Human Rights”, in Lori Fisler Damrosch and David J. Scheffer (eds), Law and Force in the New International Order (Boulder: Westview Press, 1991), pp. 216–217, 219.

85. The GCR2P Report, “Implementing the Responsibility to Protect. The 2009 General Assembly Debate: An Assessment”, op. cit., p. 7. For example, Venezuela and Cuba expressed a minority view that Pillar III was in contravention of international law. Cf. the view of the majority of states is reflected in Brazil's statement that R2P is not a novel prescription but in fact grounded in international law and is a powerful political call for all states to abide by legal obligations already set forth in the Charter, human rights and humanitarian law conventions and other instruments, see ibid., p. 5.

86. Security Council Resolution 1970, S/RES/1970, 26 February 2011 (see more in supra note 1); Security Council Resolution 1973, S/RES/1973, 17 March 2011. The main focus of Resolution 1973 is the protection of civilians. The preambular para. 5 provides: “Reiterating the responsibility of the Libyan authorities to protect the Libyan population and reaffirming that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians”, and op. para. 3 states: “Demands that the Libyan authorities comply with their obligations under international law, including international humanitarian law, human rights and refugee law and take all measures to protect civilians and meet their basic needs, and to ensure the rapid and unimpeded passage of humanitarian assistance”. In operative para. 4 the Council “[a]uthorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of Resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory.” (Italics by author.) It furthermore imposed a no-fly zone in the Libyan airspace (op. para. 6).

87. The Resolution can be seen as a kinder egg (3 in 1). In an unprecedented manner it combines three independent frameworks for the protection of civilians: 1) the authorisation of a humanitarian intervention; 2) the implementation of the R2P; and 3) the inclusion of a “civilian protection mandate”, which until now has only been used for peacekeeping operations (see the above section on Pillar II). See more on the kinder egg analysis, panel presentation on the Libya case by Diana Amnéus, “UN Security Council Resolution 1973 (2011): Instant analysis of the situation in Libya”, Juridicum Lund University (via Youtube) (30 March 2011) < http://www.youtube.com/user/JuridicumLUND#p/u/1/kyd7FyBYFoM> (accessed 25 July 2011). A different issue is the critique that has been raised against the NATO campaign in its implementation and interpretation of the protection of the civilian mandate. The mandate was formulated very open and without explicit political or strategic objectives apart from the protection of civilians. States and commentators are in disagreement on the lawfulness of targeting government buildings, President Qhaddafi and his family, the acceptable level of civilian casualties and the support to a regime change. See “Popular protest in North Africa and the Middle East (V): Making sense of Libya, Middle East/North Africa Report N°107”, International Crisis Group (6 June 2011), available: <http://www.crisisgroup.org/~/media/Files/Middle%20East%20North%20Africa/North%20Africa/107%20Popular%20Protest%20in%20North%20Africa%20and%20the%20Middle%20East%20V%20-%20Making%20Sense%20of%20Libya.ashx> (accessed 20 June 2011). In its recommendations it demands that it is made “a clear distinction between Qaddafi “going”—ceasing to have any political role or power—as a key element of the desired political end result and his “going” immediately, as the precondition of everything else”.

88. See Stahn, op. cit., p. 109; Cf. a more cautious approach to the requirement of a determination that the situation constitutes a threat to the peace in Brunnée and Toope, op. cit., p. 208. I agree in that a determination of a threat to the peace must be made prior to enforcement measures, which was confirmed in the Libya case with regard to the military enforcement measures under Chapter VII (Article 42). Preambular para. 23 of Resolution 1973 reads: “Determining that the situation in the Libyan Arab Jamahiriya continues to constitute a threat to international peace and security”. (Italics by author.) This passage indicates that the Council has already made such a determination in a prior resolution on Libya, most likely before Resolution 1970 since it does not include such a determination. But I disagree in this being a double qualifier, at least with regard to military enforcement measures, since the Council right to authorise humanitarian intervention already existed before the 2005 Outcome Document.

89. Susan Lamb, “Legal Limits to United Nations Security Council Powers”, in Guy S. Goodwin-Gill and Stefan Talmon (eds), The Reality of International Law. Essays in Honour of Ian Brownlie (New York: Oxford University Press, 1999), p. 367. The doctrine of “compétence de la competénce” was confirmed in the Lockerbie case with regard to Chapter VII measures, see Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) (dissenting opinion of Judge Weeramantry), ICJ Reports, 1992, p. 114, p. 176; Fredrik Stenhammar, Riktade FN-sanktioner och rule of law i folkrätten (Stockholm: Jure, 2008), p. 76.

90. Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, 20 July 1962: ICJ Reports, 1962, p. 168. “In the legal systems of States, there is often some procedure for determining the validity of even a legislative or governmental act, but no analogous procedure is to be found in the structure of the United Nations. Proposals made during the drafting of the Charter to place the ultimate authority to interpret the Charter in the International Court of Justice were not accepted; the opinion which the Court is in course of rendering is an advisory opinion. As anticipated in 1945, therefore, each organ must, in the first place at least, determine its own jurisdiction. If the Security Council, for example, adopts a resolution purportedly for the maintenance of international peace and security and if, in accordance with a mandate or authorisation in such resolution, the Secretary-General incurs financial obligations, these amounts must be presumed to constitute ‘expenses of the Organisation’.”

91. Georg Nolte, “The Limits of the Security Council's Powers and its Functions in the International Legal System: Some Reflections”, in Michael Byers (ed.), The Role of Law in International Politics. Essays in International Relations and International Law (New York: Oxford University Press, 2000), p. 316.

92. Sean D. Murphy, Humanitarian Intervention. The United Nations in an Evolving World Order, 21, Procedural Aspects of International Law Series (Philadelphia: University of Pennsylvania Press, 1996), pp. 303–304.

93. On the evolution and development of the PoC framework, see Victoria Holt, Glyn Taylor with Max Kelly, Protecting Civilians in the Context of UN Peacekeeping Operations. Successes, Setbacks and Remaining Challenges (New York: United Nations, 2009); Victoria Holt and Tobias C. Berkman, The Impossible Mandate? Military Preparedness, the Responsibility to Protect and Modern Peace Operations (Washington DC: The Henry L. Stimson Center, 2006).

94. Strauss, op. cit., p. 306. On the relationship between PoC and R2P see also Susan C. Breau, “The Impact of the Responsibility to Protect on Peacekeeping”, Journal of Conflict & Security Law, Vol. 11, No. 3 (2006), pp. 429–464.

95. See a case study on Darfur and R2P in Amnéus, Responsibility to Protect, op. cit., pp. 369–381.

96. The Secretary-General's 2009 report, op. cit., para. 62. (Italics by author.)

97. Independent Commission on Kosovo, Kosovo Report. Conflict, International Response, Lessons Learned, op. cit., pp. 4, 10.

98. See Amnéus, Responsibility to Protect, op. cit., pp. 310–317.

99. The Secretary-General's 2009 report, op. cit., para. 11 (c), and footnote 9 on page 22.

100. See supra section on Pillar II.

101. The Secretary-General's 2009 report, paras. 56–57, 63 which do not clearly explain that the Uniting for Peace Procedure in the context of Pillar III (where state consent may be lacking) only provides a possibility for the General Assembly to recommend non-military measures. For a reader unaware of its legal limitations, this may give false indications of the powers and scope of this procedure. Cf. the non-military measures that the Assembly may take, considered in para. 51.

102. Fernando Téson, “Collective Humanitarian Intervention”, Michigan Journal of International Law, Vol. 17 (1996), pp. 323–371, p. 330. He argues that states can and may act to stop carnage if the Security Council fails to act in such cases and abdicates its responsibilities; see also e.g. Oscar Schachter, “The Lawful Resort to Unilateral Use of Force”, Yale Journal of International Law, Vol. 10 (1984–1985), p. 291, who also argues that unauthorised unilateral intervention is legal in five situations, including when nationals are in imminent peril of death or grave injury and the territorial sovereign is unable or unwilling to protect them. (The other four legal grounds are: self-defence, anticipatory self-defence, collective self-defence and by invitation.)

103. The ICISS report, op. cit., p. 54; Goodman, op. cit., pp. 108–109, 111; Chesterman, op. cit., p. 49; Evans and Sahnoun, op. cit., p. 107; Rogers, op. cit., p. 735.

104. Resolution RC/Res.6. Annex I. Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression. Adopted at the 13th plenary meeting on 11 June 2010 by consensus, UN Doc RC/Res.6, 2010, Article 8 bis para. 1.

105. Brownlie, op. cit., pp. 339–341; See also Thomas M. Franck and Nigel S. Rodley, “After Bangladesh: The Law of Humanitarian Intervention by Military Force”, American Journal of International Law, Vol. 67, No. 2 (1973), pp. 279–285.

106. Ian Brownlie, “Thoughts on Kind-Hearted Gunmen”, in Richard B. Lillich (ed.), Humanitarian Intervention and the United Nations (Charlottesville: University Press of Virginia, 1973), p. 142. The majority of scholars contend that no “genuine” case of humanitarian intervention occurred in the pre-UN Charter period. The cases sometimes referred to in this context do not have the necessary value or weight as precedents for a customary process.

107. See e.g. Nicholas Wheeler, Saving Strangers. Humanitarian Intervention in International Society (Oxford: Oxford University Press, 2000), pp. 55–136.

108. Looking at these cases from a customary law perspective, the interventions (with the exception of Uganda) met with wide protests and condemnations from other states and the international community, despite the humanitarian concerns, thus not producing the necessary opinio juris. The intervention in Uganda was neither debated in the United Nations nor condemned by the world community, and the justification based upon a right to self-defence appears to have been tolerated by most of the international community, logically because this was a lawful application of that right. See Chesterman, op. cit., pp. 78–79; Christine Gray, International Law and the Use of Force, 2nd edition (Oxford: Oxford University Press, 2004), pp. 31–32; Peter Hilpold, “Humanitarian Intervention: Is There a Need for a Legal Reappraisal?”, European Journal of International Law, Vol. 12, No. 3 (2001), p. 444; Rogers, op. cit., p. 730; Gill, op. cit., pp. 59–60; Nico Krisch, “Review Essay. Legality, Morality and the Dilemma of Humanitarian Intervention after Kosovo”, European Journal of International Law, Vol. 13, No. 1 (2002), p. 325. For an opposing assessment of these cases, see Téson, op. cit., pp. 228–270; Richard B. Lillich, “Humanitarian Intervention: A Reply to Dr. Brownlie and a Plea for Constructive Alternatives”, in John Norton Moore (ed.), Law and Civil War in the Modern World, (Baltimore and London: The Johns Hopkins University Press, 1974), pp. 114–122.

109. Other cases from this period also referred to in the literature are the intervention by Belgium in the Congo in 1960, the US interventions in the Congo in 1964 and the Dominican Republic in 1965, and the French intervention in Central Africa in 1979. Even the US interventions in Grenada 1983 and Panama in 1989 are sometimes also discussed in this context. However, these cases make even less good precedents of humanitarian intervention then the three most cited cases; Hilpold, op. cit., p. 444; Chesterman, op. cit., pp. 65–83.

110. Security Council Resolution 688, 5 April 1991, UN Doc S/RES/688.

111. The UK and US argued for implied authorisation referring to Resolution 688 and the material breach of Resolution 687 by Iraq (constituting the Cinderella kiss that would re-open the application of Resolution 678), as well as subsequent resolutions dealing with the Iraqi obstructions of the work by UNSCOM and IAEA (Security Council Resolutions 1154 and 1205), see Gray, op. cit., pp. 266–267; International Commission on Intervention and State Sovereignty, The Responsibility to Protect. Research, Bibliography, Background. Supplementary Volume to the Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre, 2001), p. 88; Téson, op. cit., p. 297.

112. The UK openly acknowledged that the legal justification or the patrolling of no-fly zones did not rest on Resolution 688, but that the Resolution supported its position, see Gray, op. cit., p. 265; Chesterman, op. cit., p. 132.

113. State and Security Council practice on “implied authority” for unilateral military intervention is, however, insufficient to support a general customary norm on implied authority. Most states regard the doctrine as a lex ferenda proposal, see Gray, op. cit., pp. 280–281. Gray analyses Operation Iraqi Freedom as a case of unilateral military intervention making use of the theory of implied authorisation.

114. Simon Chesterman, “Hard Cases Make Bad Law: Law, Ethics, and Politics in Humanitarian Intervention”, in Anthony F. Lang (ed.), Just Intervention (Washington DC: Georgetown University Press, 2003), p. 51. The UK first used the formulation as one of a number of justifications for the no-fly zones over Iraq. See also Chesterman, op. cit., pp. 196–206.

115. Wheeler, op cit., pp. 154–155; Téson, op cit., p. 298. Franck speaks of a benevolent silence on the part of the international system, see Thomas M. Franck, Recourse to Force. State Action Against Threats and Armed Attacks (Cambridge: Cambridge University Press, 2002), p. 154.

116. Gray, op. cit., pp, 264–265. Interventions were also made in 1993, 1996 and 1998.

117. See Gareth Evans, “The Responsibility to Protect. Ending Mass Atrocity Crimes Once and For All. Address by Gareth Evans, President, International Crisis Group, to the Institute for Public Policy Research, London”, International Crisis Group, (15 December 2008), available: <http://www.crisisgroup.org/en/publication-type/speeches/2008/the-responsibility-to-protect-ending-mass-atrocity-crimes-once-and-for-all.aspx> (accessed 12 January 2009).

118. Unilateral unauthorised humanitarian interventions could neither find legal support in the International Law Commission's Draft Articles on State Responsibility (2001) providing for a (progressive) duty to co-operate to end serious breaches (peremptory norms) of international law under Articles 40 and 41 of the Draft Articles, nor as a lawful countermeasure under the law of state responsibility. The duty to co-operate must be undertaken through “lawful means”. This would rule out unauthorised humanitarian intervention. See Amnéus, Responsibility to Protect, op. cit., pp. 292–301. See also Breau's argumentation and reference to Cassese and Crawford in Breau, op. cit., p. 295. See also the more general discussions on R2P and ILC Draft Articles in Brunnée and Toope, op. cit., p. 208; Stahn, op. cit., pp. 115–116.

119. Bellamy and Stahn claim that the key phrase in paragraph 139 that “we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter”, could be read as suggesting that concerned states may choose to work with the Security Council, but also through alternative arrangements justifying their action on R2P language. Bellamy argues that the UN Charter's purpose of promoting human rights (Article 1 (3)) together with a restrictive interpretation of the prohibition on the use of force (Article 2 (4)), would allow for unauthorised military intervention for humanitarian purposes if it does not threaten the territorial integrity or political independence of a state. Similarly, regional action would not violate the UN Charter (Article 53) if implied authorisation of the Council is sought. See Bellamy, “Preventing Future Kosovos and Future Rwandas: The Responsibility to Protect after the 2005 World Summit”, op. cit., p. 5; Stahn, op. cit., p. 109; see also Bannon, op. cit., p. 1161.

120. The intervention in Sierra Leone was a so called “democratic intervention” to address the regime change made by force and will hence not be dealt with since it falls outside the definition on humanitarian intervention employed here.

121. Amnéus, Responsibility to Protect, op. cit., see chapter 8.2.

122. See ibid., chapters 8.4.1.1. and 8.4.1.2.

123. Both NATO and ECOWAS were accused of having violated humanitarian law, but the question is whether the extent of the violations reached a level that undermined the precedential value of these humanitarian interventions. Further discussions are warranted on the scale, duration and intensity required of a particular operation of humanitarian intervention for it to comply with the principle of proportionality. What type and degree of force is proportional and reasonable? Where is the limit drawn, and which actions fall outside the principle? Do such interventions require a higher degree of compliance? See the reasoning by James Pattison, “Humanitarian Intervention, the Responsibility to Protect and jus in bello”, Global Responsibility to Protect, Vol. 1 No. 3 (2009), pp. 364–391. See also on the relationship between jus ad bellum and jus in bello, Christopher Greenwood, Essays on War in International Law (London: Cameron May Ltd, 2006), pp. 13–33. In many cases of humanitarian intervention combat operations have taken place, albeit sometimes followed by state protests. State practice shows that states do not interpret the concept of humanitarian intervention to hold a demand that the operation is limited to the bounds of traditional peace-keeping or limited forms of protection of civilians but also encompass a mandate to defeat of the perpetrator of mass atrocity crimes, see Taylor B. Seybolt, Humanitarian Military Intervention. The Conditions for Success and Failure (Oxford: Oxford University Press, 2007). The debate and protests on the boundaries of the implementation of the protection of civilian mandate in the Libya case (2011) has put this issue on the table. In order to clarify the more specific boundaries, future state practice should be focused on executing humanitarian operations in ways that do not overstep these boundaries or attract condemnations for violating humanitarian law.

124. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ Reports, 1986, p. 14, para. 186; Michael Akehurst, “Custom as a Source of International Law”, British Yearbook of International Law, Vol. 47, No. 1 (1974), pp. 20, 26; Mark E. Villiger, Customary International Law and Treaties (Dordrecht: Martinus Nijhoff Publishers, 1985), p. 23.

125. International Law Association, Statement of Principles Applicable to the Formation of General Customary International Law, Final Report of the Committee London Conference (2000), p. 22; see also Maurice H. Mendelson, “The Formation of Customary International Law”, Recueil des Cours, Vol. 272 (1998), p. 212; Villiger, op. cit., p. 22. Mendelson explains that both internally (each state) and collectively (as between states) practice has to be uniform and refers to the Fisheries case (United Kingdom v. Norway), Judgment of December 18th, I95I, ICJ Reports, 1951, p. 116, see pp. 131, 138.

126. Classical and modern theories of customary law contain different views on the relationship between opinio juris and state practice in the formation of a customary rule, see an overview in Jason A. Beckett, “Countering Uncertainty and Ending Up/Down Arguments: Prolegomena to a Response to NAIL”, European Journal of International Law, Vol. 16, No. 2 (2005), pp. 220, 231. Classical theory does not accept a separation between the elements and regards them as being mutually constitutive and inseparable: a customary rule is seen as a synthesis between the two elements. Modern theories, based upon Anthony D'Amato's separation of state practice as “acts” and opinio juris as “statements”, view them as distinct elements (cf. Kirgis' custom on a sliding scale). Customary law then becomes an aggregate of the two elements, which are perceived as being radically separate while one of the elements can be more predominant than the other. For a description of a reconciliation attempt between modern and traditional approaches to customary law, see the “reflexive equilibrium” based upon D'Amato's separation of usus and opinio juris and an alternative vision of Dworkin's interpretive theory combined with Rawlsian reflective equilibrium, Anthea Elizabeth Roberts, “Traditional and Modern Approaches to Customary International Law: A Reconciliation”, American Journal of International Law, Vol. 95 (2001), pp. 757–791.

127. Ex post facto authorisation is based upon the idea that an intervention that has been implicitly approved or endorsed by the Security Council after the intervention is legally acceptable. The doctrine of ex post facto authorisation has gained increasing acceptance among states and scholars but has not yet fully attained the status of lex lata. See Ademola Abass, Regional Organisations and the Development of Collective Security. Beyond Chapter VIII of the UN Charter (Oxford and Portland: Hart Publishing, 2004), p. 54; Inger Österdahl, “Preach What You Practice. The Security Council and the Legalisation ex post facto of the Unilateral Use of Force”, Nordic Journal of International Law, Vol. 74 (2005), pp. 231–260; Lind, op. cit., pp. 151–155; The ECOWAS interventions in Liberia 1991 and Sierra Leone 1997 are the only valid precedents of ex post facto authorisation, see Amnéus, Responsibility to Protect, op. cit., pp. 400–405; Cf. the discussion in Ress and Bröhmer who in The Commentary to the UN Charter demonstrate that from a teleological point of view of the Charter, only prior authorisation fully ensures effective Security Council control over regional organisations under Article 53, but argue from a practical standpoint that this view might seem too rigid due to the difficulty in first seeking Council authorisation when swift action is necessary. They therefore argue de lege ferenda that especially in situations where the Council has already acted by expressing its grave concern over the situation in question or determined a threat to the peace, that it is difficult to infer illegality of non-authorised action merely from the fact that Council authorisation came subsequently. An exception to the rule of prior authorisation could, however, only be applied in exceptional circumstances where prior authorisation “would not and could not have changed the course of action” and would only be conceivable if a number of listed factors fall into place, see further in Ress/Bröhmer, “Article 53”, in Bruno Simma (ed.), op. cit., pp. 864–866, paras. 13–25. Ress and Bröhmer argue lege ferenda that the doctrine could be applied in exceptional circumstances but add that it is only conceivable if a number of factors fall into place: 1) the need for urgent action; 2) unanimity of the permanent Security Council members; and 3) sufficient evidence for tacit Council approval of the particular action. All these factors need to be present.

128. Amnéus, Responsibility to Protect, op. cit., p. 502.

129. See the Constitutive Act of the African Union, Lomé, Togo, 11 July, 2000, Article 4 (h); ECOWAS, Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-Keeping and Security, Lomé, Togo, 10 December, 1999 (reprinted in Journal of Conflict and Security Law, Vol. 5, No. 2 (2000), pp. 231–259), see in particular Articles 22 (c), 25 (c-f), and 40; Tim Murithi, “The responsibility to protect, as enshrined in article 4 of the Constitutive Act of the African Union”, African Security Review, Vol. 163 (2007), pp. 14–24; Powell, op. cit.

130. David Wippman, “Treaty Based Intervention: Who Can Say No?”, University of Chicago Law Review, Vol. 62 (1995), p. 623; Amnéus, Responsibility to Protect, op. cit., pp. 410–424.

131. Amnéus, Responsibility to Protect, op. cit., pp. 424–428.

132. Wippman, op. cit., p. 623; Lind, op. cit., p. 158; Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law (Helsinki: Finnish Lawyers' Publishing Company, 1988), p. 342; Ola Engdahl, “Samtycke till väpnad intervention”, in Ola Engdahl and Cecilia Hellman (eds), Responsibility to Protect - folkrättsliga perspektiv (Stockholm: Försvarshögskolan, 2007), p. 116, which states that only an ad hoc invitation should count as a legal basis for a military intervention.

133. Article 2 (4) is lex superior according to Article 103 of the UN Charter and therefore prevails before any conflicting treaty obligation. But Articles 2 (4) and 103 do not prohibit bilateral or multilateral treaties giving prior consent to military interventions per se, as long as the target state honours its treaty obligations to accept an intervention. See Lind, op. cit., pp. 158–161. See also, Ann Van Wynen Thomas and A.J. Thomas, Non-intervention. The Law and its Import in the Americas (Dallas: Southern Methodist University Press, 1956), p. 98.

134. Abass, op. cit., p. 165; Kioko, op. cit., p. 817.

135. See supra note 127 on the UN Charter Commentary text on ex post facto authorisation in exceptional circumstances.

136. Amnéus, Responsibility to Protect, op. cit., pp. 533–536.

137. Chesterman, op. cit.; Thomas M. Franck, “Interpretation and change in the law of humanitarian intervention”, in J.L. Holzgrefe and Robert O. Keohane (eds), Humanitarian intervention. Ethical, Legal and Political Dilemmas (Cambridge: Cambridge University Press, 2003).

138. Mary Ellen O'Connell, “Responsibility to Peace: A Critique of R2P”, Journal of Intervention and Statebuilding, Vol. 4, No. 1 (2010), pp. 39–52.

139. Thomas G. Weiss, “The Sunset of Humanitarian Intervention? The Responsibility to Protect in a Unipolar Era”, Security Dialogue, Vol. 35, No. 2 (2004), pp. 135–155.

140. Danish Institute of International Affairs, Humanitarian Intervention. Legal and Political Aspects (Copenhagen: DUPI, 1999), pp. 116–118.

141. Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), p. 144. It may be possible that this is such a case which Dworkin describes as a situation where there are two theories which differ sufficiently to demand different answers and provide indeterminacy in moral theory “which makes it plausible to suppose that neither of such theories can be preferred to the other on grounds of political morality”. In this case, neither alternative provides a best justification in terms of the dimensions of “fits” and of “political morality” (ibid., pp. 143–145).

142. Cf. Gareth Evans has used the terminology “coercive protection missions” to denote complex peace-keeping operations to distinguish them from traditional peace-keeping and peace-enforcements, see Evans, op. cit., p. 123.