Responsibility to Protect Democracy as a Robust International Legal Order

Transcription

1 Ritsumeikan International Affairs Vol.7 (2009) Responsibility to Protect Democracy as a Robust International Legal Order YAMAGATA, Hideo

2 Institute of International Relations and Area Studies, Ritsumeikan University Responsibility to Protect Democracy as a Robust International Legal Order YAMAGATA, Hideo * Abstract This paper aims to analyse the concept of the responsibility to protect (R2P), which was advanced in response to the request of a robust international legal order dealing with a failing or failed State. The Iraq war required the justification on the basis of a duty to prevent weapons of mass destruction (WMDs) which were allegedly possessed by Iraq. The duty to prevent was introduced in the extension of the responsibility to protect. However, the coalition States failed to demonstrate the Iraqi possession of WMDs. Thus the United States and the United Kingdom necessarily based the justification on another legal ground. That was the responsibility to protect. In this way the concept was extended to a point at which the restoration of democracy was included as an object of the responsibility to protect. Nevertheless the original idea of the responsibility to protect could not justify the Iraq war for the purpose of restoring a democratic government. Moreover it has not been recognized as a legal norm yet. Although there is a tendency that the international community is recognizing it, it is just a political or moral justification for a just war. Still the international society is a decentralized one and therefore the non-intervention and the non-use of force principle are to be respected as fundamental principle emanating from the State sovereignty as a solid basis for international law. RITSUMEIKAN INTERNATIONAL AFFAIRS Vol.7, pp (2009). * Professor of International Cooperation, Graduate School of International Development (GSID), Nagoya University, Japan. The author s gratitude should go to Assistant Professor Rebuck of GSID, who kindly read my draft and made it readable.

3 22 RITSUMEIKAN INTERNATIONAL AFFAIRS Vol. 7 Keywords: Responsibility to protect, Democracy, the Iraq war, International law, the United Nations INTRODUCTION Today the international community is undergoing globalisation process that began even before the end of the cold war in At the turn of the century, Kofi Annan stated in We the Peoples that the post-war multilateral system made it possible for the new globalisation to emerge and flourish. 1) It is, indeed, true that it was gradually and steadily under way during the cold war era in which the socialist economic system coexisted with a capitalistic one. Globalisation is not a unique feature of the post cold war era. However, what can be considered real globalisation only began taking shape, after the collapse of the socialist states. Now for the first time in human history the capitalistic economy is extending even to the marginal area of the earth and covering almost the whole globe. This emerging global world is based on the open market system. In an economic sense, the international society is becoming a global open market system. This in turn is accelerating the process of globalisation. Against this background, the international community is confirming its adherence to two basic values: human rights and democracy. For example, Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community inserted in Article 1a the values of respect for democracy and respect for human rights. 2) It illustrates that the birth of the global economy in a true sense requires human rights and democracy. In 1993, Boutros-Ghali rightly maintained that the globalisation of economic activity has generated pressures for democratisation and human rights. 3) It is needless to say that democracy is an 1) Kofi A. Annan, We the Peoples: The Role of the United Nations in the 21st Century 11 (New York: United Nations, 2000). 2) Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, Official Journal of the European Union 2007/C 306/01, available at < C:2007:306:SOM:EN:HTML>. 3) Boutros Boutros-Ghali, An Agenda for Democratization 9, para.21 (New York, United Nations, 1996) reproducing UN Doc.A/51/761 (20 December 1996).

4 2009 Responsibility to Protect Democracy as a Robust International Legal Order YAMAGATA 23 essential for human rights, which in turn are a necessary prerequisite for the open market system. Such a system is not tenable, unless democracy and human rights are secured. Democracy and human rights are being recognised as fundamental values to be attained in the current global economy. However, only recently, probably after the start of the post cold war era, did it become evident that the international community is being faced with new issues or new threats to it as consequences of the globalisation. Among them are global warming, terrorist attacks, and the spread of epidemic diseases such as HIV, avian influenza and BSE. The rise in oil prices, the result of an uncontrollable gambling economy, can also be considered one of these. Such a barrage of global issues is a reflection of the changing nature of the international community from an international world to a global world. Therefore, Kofi Annan called for a robust international legal order to regulate an emerging global civilisation. 4) The term civilisation is reminiscent of traditional international law as the public law of the European states system, which was only composed of civilised states in Europe. States in international law were necessarily civilised States. Nations would not be recognised as de jure state, unless they could not meet the international standard, under which civilised states were required to be a guardian of foreigners from civilised states by paying due diligence. 5) This means that the then so called uncivilised nations, most of which were in Africa and Asia, were excluded from the direct application of international law. They were merely subject to colonial control by civilised nations, through which rules of international law were indirectly applied. Traditional international law used the distinction between civilised and uncivilised communities to deal with the process of European expansion. 6) Notwithstanding its limited scope of application, traditional international law constituted a robust legal order, because a Western State was allowed to intervene in another State, when the con- 4) Kofi A. Annan, supra note 1, at 13. 5) Matsui correctly points out that the subjects of traditional international law were those civilised States which could protect the person and property of foreigners. Matsui Yoshiro, The Transformation of the Law of the State Responsibility, 20 Thesaurus Acroasium 17 (1993). 6) Martti Koskenneiemi, The Gentle Civilizer of Nations 127 (Cambridge: Cambridge UP, 2001).

5 24 RITSUMEIKAN INTERNATIONAL AFFAIRS Vol. 7 science of mankind was shocked. 7) This is humanitarian intervention, one of the most controversial issues among international lawyers even after the Charter of the United Nations prohibited unilateral use of force under Article 2, paragraph 4. The NATO air bombing against Former Yugoslavia in 1999 raised an issue of humanitarian intervention in the context of the post cold war society, because some of NATO states justified their action on humanitarian grounds. 8) The dilemma of humanitarian intervention is eloquently expressed in the judgment of The Kosovo Report which stated that the NATO military intervention was illegal but legitimate. 9) The question then to be addressed is how to reconcile intervention for humanitarian purposes and the sovereignty of States shielded by the non-use of force and the non-intervention principle enshrined in Article 2, paragraph 4 and paragraph 7, of the United Nations Charter respectively. Kofi Annan posed this pertinent question: If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srevrenica to gross and systematic violations of human rights that affect every precept of our common humanity? 10) It is said that Rwanda and Srebrenica were the cases where the international intervention was too little and too late, while Kosovo was the case where it was too much and too early. 11) These events have brought human- 7) L.Oppenheim, International Law: A Treatise (8th ed., by Lauterpacht), vol.1, at 312, para.137 (London: Longman, 1955). 8) See Christopher Greenwood, Essays on War in International Law (London: Cameron May, 2006). 9) Independent International Commission on Kosovo, The Kosovo Report 4 (Oxford: Oxford UP, 2000). See also, Advisory Council on International Affairs (AIV) and Advisory Committee on Issues of International Law (CAVV), Humanitarian Intervention (2000), hereinafter cited as the Dutch report, available at < /upload/aiv/doc/aiv_13_eng.pdf>. The conclusion is the same as that of The Kosovo Report. The Dutch report says that [s]uch an intervention may well be justifiable on moral and political grounds, but there is as yet no clear legal basis for it (id., at 35). 10) Kofi A. Annan, supra note 1, at 48, cited in The International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect at vii (Ottawa: International Development Research Centre, 2001). 11) Thomas G. Weiss, R2P After 9/11 and the World Summit, 24 Wis. Int l L. J. 741, 756 (2006).

6 2009 Responsibility to Protect Democracy as a Robust International Legal Order YAMAGATA 25 itarian intervention to the center of the academic discussion. Some argue for it in serach of a robust legal order, while others argue against it in order to maintain current international legal order based on State sovereignty. To respond to the question of Kofi Annan, the International Commission on Intervention and State Sovereignty (ICISS) established under the auspices of the Canadian Government published its report The Responsibility to Protect in ICISS says that intervention for human protection purposes, including military intervention in extreme cases, is supportable when major harm to civilians is occurring or imminently apprehended, and the state in question is unable or unwilling to end the harm, or is itself the perpetrator. 12) In place of humanitarian intervention, it adopts the word responsibility to protect (R2P). This is partly because humanitarian agencies expressed very strong opposition toward any militarisation of the word humanitarian 13) and mainly because sovereignty entails responsibility to protect civilians. Sovereignty must be apprehended as transforming from sovereignty as control to sovereignty as responsibility. 14) Kofi Annan welcomed the report The Responsibility to Protect submitted by ICISS stating that this report represents the most comprehensive and carefully thought-out response we have ever seen to date. 15) He himself advocated two concepts of sovereignty, which mean that States are now widely understood to be instruments at the service of their peoples. 16) For him, State sovereignty is not necessarily a bar to international intervention in the case of human catastrophe. In addition, the new concept the responsibility to protect was accepted by the Outcome Document of 12) ICISS, supra note 10, at 16, para ) Id., at 9, para ) Id., at 13, para This idea of sovereignty as responsibility originates from the title of the book edited by Francis M. Deng, who says that sovereignty must demonstrate responsibility and that at the very least that means providing for the basic needs of its people. Francis M. Deng, Sadikiel Kimaro, Terrence Lyons, Donald Rothchild & I. William Zartman, Sovereignty as Responsibility at xvii (Washington, D.C: Brooking Institution, 1996). See also, Francis M. Deng, The Frontier of Sovereinghty: A Framework of Protection, Assistance, and Development for the Internally Displaced, 8 Leiden J. Int l L. 249, 278 (1995). 15) Secretary-General Addresses International Peace Academy Seminar on Responsibility to Protect, UN Doc. SG/SM/8125 (15 Feb. 2002). 16) Kofi A. Annan, Two Concepts of Sovereignty, The Economist 18 Sep. 1999; see also Kofi A. Annan, Question of Intervention 37 (New York: United Nations, 1999).

7 26 RITSUMEIKAN INTERNATIONAL AFFAIRS Vol. 7 the World Summit in 2005, which stated that [e]ach individual State has the responsibility to protect its populations. 17) In the understanding of ICISS, it is an emerging guiding principle. 18) The responsibility to protect is aimed to protect the fundamental human rights of civilians which may be endangered by the inability or the unwillingness of local authorities to prevent genocide, ethnic cleansing or crimes against humanity. It may be located in the framework of a robust international legal order in an emerging global civilisation. As for democracy, it might be covered by the responsibility to protect, because failed or failing states unable or unwilling to protect civilians may need governmental reform towards democratic governance. Evidently one of the reasons for failing or failed states is the loss of support by peoples or residents. This paper aims to analyse the legal significance of the responsibility to protect, which might be said to include the responsibility to protect democracy. I. RESPONSIBILITY TO PROTECT 1. Canadian v. Japanese Approach to Human Security Responsibility to protect is underpinned by the notion of human security. National security does not always secure the safety of people. This is demonstrated by the fact that intra-state wars kill more people than interstate wars. According to Rudolph Rummel, during the 20th century, at least 170 million people lost their lives as a result of inter-state wars, five times more than the number killed by inter-state war. 19) Moreover, more than 80 percent of casualties of conflict were civilian in the 1990 s 20). Therefore, it is necessary to undertake a paradigm shift for international security: from a concern with protecting and enhancing the security of states, to the protection and security of civilians. 21) 17) 2005 World Summit Outcome, UN Doc. A/RES/60/1, at 30, para.138 adopted on 24 Oct ) ICISS, supra note 10, at 15, para ) Rudolf Rummel, Death by Government 9-12 (1994) cited in Christopher C. Joyner, The Responsibility to Protect : Humanitarian Concern and the Lawfulness of Armed Intervention, 47 Va. J. Int l L. 693, 694 (2007). 20) Lloyd Axworthy, Introduction in Rob McRae & Don Hubert ed, Human Security and the New Diplomacy 3, 4 (Montreal: McGill-Queen s UP, 2001). 21) Bob McRae, Human Security in a Globalised World in Rob McRae & Don Hubert ed., Human Security and the New Diplomacy 14, 20 (Montreal: McGill-Queen s UP, 2001).

8 2009 Responsibility to Protect Democracy as a Robust International Legal Order YAMAGATA 27 Canada took an initiative in introducing and making prevalent the human security concept. The Canadian approach to human security is dependent to some degree on the military, because the ICISS report, The Responsibility to Protect, does not rule out the possibility for the international community to militarily intervene in a State, the government of which is unable or unwilling to protect civilian people. Critics have pointed out that the Canadian approach to human security is an unabashedly interventionist doctrine. 22) Japan is another advocator of human security. It sponsored an international commission, the Commission on Human Security (co-chaired by Ogata Sadako and Amartya Sen), to examine the concept. It produced a report, Human Security Now, 23) and submitted it to the Secretary-General in In contrast with the Canadian one, the report proposed a peaceful approach to human security. It maintains that [h]umanitarian action cannot be the pretext for military intervention. 24) The statement that protecting and assisting people in internal conflicts is seen primarily from the perspectives of national sovereignty and the principle of noninterference instead of from a perspective of responsibility shared by states 25) seems to have been drafted in order to reject the Canadian approach, because it takes note of the ICISS report. 26) The Japanese approach is similar to that of the United Nations Development Program (UNDP), which coined the phrase human security in its Human Development Report The basic idea is to ensure human security through adequate development assistance. Human security as defined by UNDP includes economic security, food security, health security, environmental security, personal security, community security and political security. 27) It comprises almost all agenda for development. It is such an all-embracing concept that it is difficult for it to avoid being vague and ambiguous. Moreover, there is nothing strikingly new for internation- 22) Ernie Regehr, Defence and Human Security in M. V. Naidu ed., Perspectives on Human Security 43, 46 (Manitoba: CPREA, 2001). See also, Gerd Oberleitner, Human Security: A Challenge to International Law? 11 Global Governance 185, 194 (2005). 23) The Commission on Human Security, Human Security Now (2003). The report is available at < 24) Id., at ) Id., at ) Id., at ) United Nations Development Program, Human Development Report 1994 at (New York: Oxford University Press, 1994).

9 28 RITSUMEIKAN INTERNATIONAL AFFAIRS Vol. 7 al law, although it is said that it may fill certain gaps between human rights law and humanitarian law 28). As noted above, the Outcome Document affirms the responsibility of each State to protect civilians. At the same time, human security is also incorporated in the document. It maintains that we commit ourselves to discussing and defining the notion of human security in the General Assembly. 29) It deals with human security in a more perfunctory way than it does the responsibility to protect. The General Assembly is expected to discuss this concept for further definition. However innovative an idea human security may be, it cannot play an important role in the daily practice of development assistance by international organisations. The reason why Japan played a leading role in the establishment and promotion of the concept may lie in the desire of Japan to get a permanent seat in the Security Council. 30) It was only in 1992 that Japan began to contribute to PKO activities by sending its Self-Defence Force. Unlike Canada, Japan s contribution to the maintenance of international peace and security has been marginal due to the constraints of Article 9 of Japan s Constitution. 31) Therefore, the Japanese Government, in particular the Ministry for Foreign Affairs, must have thought it necessary to develop human security in order to link peace issues under the competence of the Security Council with development issues in which Japan is one of the big contributors through ODA. The efforts made by the Japanese Government to be seated as permanent member of the Security Council were not successful in the struggle for the UN reform. The international community is losing interest in human security. One of the reasons for this is the rejection of the United States to recognise paragraph 72 of the Outcome Document, which states that development, peace, security and human rights are mutually reinforcing. This is a core concept of human security. However, the then United States Representative to the United Nations, John Bolton did not accept the link between development and peace, because of his anti-multilateralism atti- 28) Gerd Oberleitner, supra note 22, at ) 2005 World Summit Outcome, supra note 17, at 31, para ) Tosa Hiroyuki, Anzenhosho no Gyakusetsu [Paradox of National Security], 112 (Tokyo: Seidosha, 2003) in Japanese. 31) A good account is given by Hugo Dobson, Japan and United Nations Peacekeeping (London: RoutledgeCruzon, 2003).

10 2009 Responsibility to Protect Democracy as a Robust International Legal Order YAMAGATA 29 tude towards the United Nations. 32) The skilful tactics used by the Japanese to bridge development and security by advocacy of human security did not attract general support of the international community. 2. Emerging Principle of Responsibility to Protect Instead of human security, the international community has become much more concerned with responsibility to protect, the origin of which is human security. It seems that a report produced by the High-level Panel on Threats, Challenges and Change in 2004 was inspired by Responsibility to Protect. Its title A More Secure World: Our Shared Responsibility is indicative of the adoption of the notion of responsibility to protect. 33) It recognises that there is growing acceptance that sovereign Governments have the primary responsibility to protect their own citizens from such catastrophes, and endorses the emerging norm that there is a collective international responsibility to protect. 34) ICISS considers responsibility to protect to be an emerging guiding principle. This implies that it may not necessarily have accepted it as a rule of customary international law; nonetheless the High-level Panel definitely assures its legal nature. In addition, the principle is discussed in Chapter IX on Using Force in A More Secure World. It suggests that military intervention is an essential ingredient of the responsibility to protect. Based on the report of the High-level Panel, the Secretary-General submitted a report entitled In Larger Freedom to the General Assembly in He moved the responsibility to protect from the section on Using Force to the section on Rule of Law and discussed it relatively briefly. In this way, he tried to soften the impression that responsibility to protect is associated with military intervention. As regards its normative values, he confirmed the description of collective responsibility to protect as an emerging norm recognised by the High-level Panel, although he said that he was aware of the sensitivities involved in this issue. 35) 32) Gershon Shafir, Legal and Institutional Response to Contemporary Global Threats: An Introduction to the U.N. Secretary General s High-level Panel Report on Threats, Challenge and Change, 38 Cal. W. Int l L. 1, 14 (2007). 33) See also, Gelijn Molier, Humanitarian Intervention and the Responsibility to Protect After 9/11, 53 Neth. Int l L. Rev. 37, 50 (2006). 34) The High-level Panel on Threats, Challenge and Change, A More Secure World: Our Shared Responsibility 65-66, paras 201, 203 (New York: United Nations, 2004) and UN Doc. A/59/565, 56-57, paras 201, ) Kofi A. Annan, In Larger Freedom Towards Development, Security and Human Rights for All 49, para.135 (New York: United Nations, 2005) and UN Doc. A/59/205, at 35, para.135.

11 30 RITSUMEIKAN INTERNATIONAL AFFAIRS Vol. 7 Finally the responsibility to protect was reaffirmed in the Outcome Document in It merely stated that [e]ach individual State has responsibility to protect its populations. 36) It did not mention the legal status of the responsibility to protect. It may be possible to interprete this as denying that the responsibility to protect is an emerging norm of international law. It is said that the responsibility to protect is on firm ground, not only in the academic world, but also in the community of states, because the declaration was adopted by 170 countries. 37) Indeed the concept of the responsibility to protect is now accepted by the international community. However, it is doubtful whether it is accepted as a legal norm and whether it implies collective military intervention by the international community and unilateral military intervention in those States that are in a failing or failed condition and when they are unable or unwilling to protect citizens. Developing countries in particular are very cautious about this new doctrine. During the consideration of In Larger Freedom, some delegates expressed suspicions about it. For example, Venezuela remarked that [t]he responsibility to protect was supposed to be a starting point for protecting against genocide and other human rights violations, while, in reality, it aimed at seizing the right to adopt coercive measures against States of the South. 38) The representative of Vietnam was not convinced that responsibility to protect was an emerging norm of international law. 39) From this debate, Christian Gray draws a conclusion that though the concept of responsibility to protect proved acceptable to States, humanitarian intervention is still a controversial doctrine. 40) That is why the Outcome Document did not deal with humanitarian military intervention by individual States and did not make it clear that it has obtained the legal status as a rule of international law. 36) 2005 World Summit Outcome, supra note 17, at 30, para ) Gelijn Molier, supra note 33, at ) UN Doc. Press Release GA/10339 (8 Apr. 2005). 39) Id. 40) Christian Gray, A Crisis of Legitimacy for the UN Collective Security System? 56 Int l & Comp. L. Q. 157, 167 (2007).

12 2009 Responsibility to Protect Democracy as a Robust International Legal Order YAMAGATA 31 II. RESPONSIBILITY TO PROTECT DEMOCRACY 1. The Duty to Prevent to the Responsibility Defending the Iraq War Not only developing countries, but also the United States was a strong doctrine dissident for two reasons. First, the United States committed to the doctrine of pre-emptive self-defence for a war on terrorism after September 11 incident emphasising not humanitarian intervention, but prevention from attacks by terrorists. The US National Security Strategy in 2002 maintained that [w]e will not hesitate to act alone, if necessary, to exercise our right of self-defence by acting preemptively against such terrorists. 41) The primary concern of the United States is with the protection of American citizens from terrorist attacks, not with the protection of citizens of another State. Secondly, even in the case of humanitarian intervention, the United States did not want to have any limitation imposed on its use of force. As Welsh remarks, [t]he United States is strongly opposed to establishing criteria that might tie its hands in the future. 42) Weiss also says that the R2P s thresholds and precautionary principles could limit Washington s flexibility in determining when and where to deploy military force. 43) The United States did not want to waive its prerogatives to use force as the only one superpower. The Iraq war, however, changed the attitude of the United States towards the doctrine of the responsibility to protect. At first the United States justified its military operation by saying the Iraqis possessed weapons of mass destruction (WMDs). It also emphasised that the authorisation to use force against Iraq under SC Res ) was revived by SC Res ) condemning the Iraqi material breach of obligations imposed 41) The United States, The National Security Strategy of the United States of America 6 available at < 42) Jennifer M. Welsh, Conclusion: Humanitarian Intervention after 11 September, in Jennifer M. Welsh ed., Humanitarian Interventions and International Relations 176, 180 (New York: Oxford UP, 2004). See also, S. Neil MacFarlane, Caroline J. Thielking & Thomas G. Weiss, The Responsibility to Protect: Is Anyone Interested in Humanitarian Intervention? 25 Third World Q. 977, 983 (2004). 43) Thomas G. Weiss, supra note 11, at ) UN Doc. S/RES/678 (1990) adopted on 29 Nov ) UN Doc. S/RES/1441 (2002) adopted on 8 Nov

13 32 RITSUMEIKAN INTERNATIONAL AFFAIRS Vol. 7 by SC Res ) Nonetheless, it was difficult to sustain its justification for the use of force under international law. There is no rule of customary international law to regulate the development and possession of WMDs, although there are certain treaties. Nevertheless international lawyers invented a new concept of a duty to prevent to defend the Iraq war. A duty to prevent is the responsibility of States to work in concert to prevent governments that lack internal checks on their power from acquiring WMD or the means to deliver them. 47) This duty requires States to be proactive rather than reactive. 48) It thus offers the legal justification for the preemptive exercise of the right of self-defence. It is regarded as a corollary principle of the responsibility to protect. 49) The responsibility to protect is considerably extended to cover the use of force in the case of WMDs. This doctrine is to satisfy the needs of the American and the British Governments fighting against Iraq. However, it was found that Iraq did not possess any WMDs in its territory. Therefore, the possible invocation of the duty to prevent would not be a successful justification of the Iraq war. A remarkable feature of the duty to prevent is to enlarge the scope of the responsibility to protect and allegedly enable the international community to use force against a State which possesses WMDs without clear and expressed authorisation of the Security Council. The responsibility to protect is purported to make a State ensure the protection of its citizens staying in its territory under the condition that the State is not able or willing to do so. However, the duty to prevent does not require such a condition. It might be exercisable to a State in which the government is so 46) UN Doc. S/RES/687 (1991) adopted on 3 Apr The United States maintained that a material breach of these obligations removes the basis of the ceasefire and revives the authority to use force under resolution 678 (1990). Letter dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council, UN Doc. S/2003/351. See also, United Kingdom Foreign and Commonwealth Office, Memorandum March 17, Int l & Comp. L. Q. 812, 812 para.1 (2002). For criticism, Dominic McGoldrick, From 9-11 to the Iraq War 2003 at (Oxford: Hart, 2004). 47) Lee Feinstein & Anne-Marie Slaughter, A Duty to Prevent, 83:1 Foreign Affairs 136, 142 (2004). 48) Id., at 137. Needless to say, the target would be not only Iraq but also North Korea. Kim refutes the applicability of the responsibility to protect to North Korea. Young Sok Kim, The Responsibility to Protect, Humanitarian Intervention and North Korea, 5 J. Int l Bus. & L. 74, 94 (2006). 49) Lee Feinstein & Anne-Marie Slaughter, supra note 47, 137.

14 2009 Responsibility to Protect Democracy as a Robust International Legal Order YAMAGATA 33 authoritarian as to retain a strong power to control its people and territory and which is far from being a failing or failed State. It is interesting to note that the purported object of protection under the duty to prevent is not the people living in a target State, but those living in a State exercising use of force. Therefore, it goes further beyond the scope of the responsibility to protect. Unsuccessful invocation of the duty to prevent in the Iraq war necessitated another legal justification. That was the responsibility to protect to which the United States had been opposed strongly before. Thakur, a member of ICISS, remarks that since coalition forces in Iraq have failed to find any weapons of mass destruction, human protection has become only remaining significant justification for the US-led war on the dictator Saddam Hussein. 50) As a matter of fact, President Bush said in 2005 that [w]ith every random bombing and with every funeral of a child, it becomes evident that the extremists are not patriots or resistance fighters, but [t]hey are murderers at war with the Iraqi people themselves. 51) He did not clearly refer to the responsibility to protect, but his statement implied that the Iraq war was for the benefit for the Iraqi people. No mention was made of the WMDs which were initially used as a justification for the war. It was to be conducted for humanitarian reasons. For the United Kingdom, Jack Straw, the then Foreign Secretary of the United Kingdom, made a speech at the Labour Party Conference in Brighton on 28 September 2005, in which he stated the justification for the Iraq war: sovereign states themselves and the nation of the world as a whole, have clear responsibility to protect all citizens for justification of the Iraq war. 52) Unlike President Bush in his speech, Straw also referred to the breach of treaty obligations by developing nuclear capabilities. However, it was just a plea which few could believe to be a true and just cause in The then Prime Minster Tony Blaire is also reported to have stated that we surely have a responsibility to act when a nation s people are subjected to a regime such as Saddam s. 53) Therefore, no other justification was left for the United States and the United Kingdom than 50) Ramesh Thakur, It s Time to Redefine a Just War, 27 UNU Update (2003), available at < 51) 41 Weekly Comp. Pres. Doc. 1502, 1507 (5 Oct. 2005). 52) Jack Straw, We are in Iraq to Bring about Democracy, available at < 53) Michael Byers, War Law 107 (New York: Grove Press, 2005).

15 34 RITSUMEIKAN INTERNATIONAL AFFAIRS Vol. 7 the responsibility to protect. The real object of the Iraq war was not to implement the obligations imposed by the Security Council Resolutions 687 and 1441, not to destroy the WMDs which Iraq allegedly possessed, and not to rescue the Iraqi people who became the target of terrorist attacks; it was to overthrow the government of Saddam Hussein. As early as in 1998, the Congress of the United States made it clear under the Iraq Liberation Act that it should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime. 54) Regime change in Iraq was the real purpose of the Iraq war. It is reported that when he met with President George Bush, Tony Blair said that the UK would support military action to bring about regime change. 55) There was an agreement between the United States and the United Kingdom to resort to war against Iraq with the aim of transforming the Iraqi Government to democratic one. The doctrine of responsibility to protect was expedientially advanced to justify the war. Now the doctrine was understood to mean the establishment of democracy in Iraq. This was suggested in the title of Jack Straw s speech at the Labour Party Conference in Brighton in 2005 We are in Iraq to Bring About Democracy. 2. Necessary Extension to the Protection of Democracy The Iraq war prompted the United States to change its policy towards the responsibility to protect. John Bolton welcomed the adoption of the responsibility to protect in the Outcome Document, by saying that the Responsibility to Protect moves us toward a new strengthened international moral consensus on the need for the international community to deal with cases involving genocides, war crimes, ethnic cleansing and crimes against humanity and the Outcome Document rejected categorically the argument that any principle of non-intervention precludes the Security Council from taking such action. 56) A question to be posed is whether the doctrine of responsibility to protect is designed to cover the 54) The Iraq Liberation Act, Sec.3, H.R. 4655, 3rd session, 105th Cong. available at < 55) Adam Roberts, Transformative Military Occupation: Applying the Laws of War and Human Rights, 100 Am. J. Int l L. 580, 606 (2006) citing Conditions for Military Action, Secret Cabinet Office Paper, para.2, available at < cabinetofficetext.html>.

16 2009 Responsibility to Protect Democracy as a Robust International Legal Order YAMAGATA 35 responsibility to protect democracy by way of regime change. Although the report of ICISS does not investigate this issue, it does briefly touch upon it arguing that [i]ntervention suspends sovereignty claims to the extent that good governance as well as peace and stability cannot be promoted or restored unless the intervener has authority over a territory. 57) The report continues: the suspension of the exercise of sovereignty is only de facto for the period of the intervention and follow-up, and not de jure. 58) It does not mean to affirm the responsibility to protect democracy as a purpose of the intervention by the international community. 59) However, it does not rule out regime change as a consequence of the intervention. Indeed, it only mentions the temporal suspension of the sovereignty, but it is natural that the report should contemplate the possibility that the authority of the intervener may lead to the change of the government. In the case of the large scale loss of life, the person responsible for perpetrating genocide, serious war crimes and crimes against humanity might be brought before an international criminal court for punishment. Milošević, for example, was indicted before the International Criminal Tribunal for the Former Yugoslavia and Saddam Hussein was tried by the Iraq Special Tribunal against Humanity. It is an established principle that official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a governmental official shall in no case exempt a person from criminal responsibility of an international court as provided for in Article 27 of the Statute of the International Criminal Court. 60) Therefore, the provisional exercise of the 56) Statement of the Honorable John R. Bolton, U.S. Representative to the United Nations, Challenge and Opportunities in Moving Ahead on UN Reform, hearing before the Senate Foreign Relations Committee on 18 Oct. 2005, available at < reprinted in John R. Crook, Contemporary Practice of the United States Relating to International Law, 100 Am. J. Int l L. 463, (2006). 57) ICISS, supra note 10, at 44, para ) Id. 59) Evans says that [o]verthrow of regimes is not as such a legitimate objective, althout disabling a regime s capacity to harm its own people may be essential to discharging the mandate of protection. Gareth Evans, The Responsibility to Protect: Rethinking Humanitarian Intervention, 98 ASIL Proceedings 78, 85 (2004). 60) However, in a domestic court, they can enjoy immunity even when they are under the criminal procedures on account of international crime on the basis of universal jurisdiction. See The Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Merits, 2002 ICJ Rep. para. 54 (Judgment of 14 Feb 2002).

17 36 RITSUMEIKAN INTERNATIONAL AFFAIRS Vol. 7 sovereign power by the authority of occupying states after the intervention is likely to trigger regime change. Thomas Weiss and Don Hubert published The Responsibility to Protect: Research, Bibliography, Background, as a supplementary volume to the report of ICISS. Although the views expressed in it could not be interpreted to be those of ICISS and it does not include a commentary of the ICISS report, it is worth reading to get an insight into the background discussion in ICISS. The authors say that there is a growing recognition that the safety of vulnerable populations cannot necessarily be guaranteed through a short military campaign. 61) Air bombing for humanitarian purposes could stop atrocities causing the loss of life of civilians. Nonetheless, it may be difficult to prevent reoccurrence of such atrocities in the near future, as far as the regime is the same. It is demonstrated by the fact that the Gulf War failed to avert the mass killing of the Kurdish people in the north Iraq and the Shiite Arab population in the south Iraq in The conclusion Weiss and Hubert draw from the study of the history of humanitarian intervention is that effective intervention may require a change of political regime. 62) The regime change might be within the purview of the responsibility to protect. III. RESPONSIBILITY TO PROTECT DEMOCRACY? 1. Scope of the Responsibility to Protect Was the responsibility to protect a legal justification for the Iraq war? Tesón answers in the affirmative way, arguing that the war in Iraq satisfies the first principle of the humanitarian intervention doctrine that a justifiable intervention must be aimed at ending tyranny or anarchy. 63) Tesón takes a view that the Iraq war was a case of humanitarian intervention, and that the argument that humanitarian intervention is sometimes acceptable even without authorisation should be available to citizens of democratic societies, because the ICISS report could not exclude completely the possibility that sometimes unilateral action may be the only 61) Thomas Weiss & Don Hubert, The Responsibility to Protect: Research, Bibliograpy, Background 141 (Ottawa: International Development Research Centre, 2001). 62) Id. Joyner also says that [w]hen certain actions by a state s government offend the very conscience of civil society, then the legitimacy of that government must be called into question. Joyner, supra note 19, at ) Fernando R. Tesón, Ending Tyranny in Iraq, 19:2 Ethics & Int l Aff. 1, 13 (2005).

18 2009 Responsibility to Protect Democracy as a Robust International Legal Order YAMAGATA 37 way to end a severe humanitarian crisis. 64) Feinstein and Slaughter also state that [i]t is not states that are the danger, but their rulers, when they argue for a duty to prevent WMDs in Iraq. 65) They put an emphasis on the absence of internal checks on a government s power. 66) They must have considered that the final goal of the duty to prevent should be regime change. However, it is extremely difficult to locate regime change for democracy within the framework of the responsibility to protect. The report The Responsibility to Protect sets out two threshold criteria: large scale loss of life, and large scale ethnic cleansing. 67) In the report of the High-level Panel, A More Secure World, the responsibility to protect is taken by the international community using military measures in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which Government have proved powerless or unwilling to prevent. 68) Kofi Annan, in his report In Larger Freedom, avoids the enumeration of the concrete cases where the international community should take the responsibility, but merely says that if national authorities are unable or unwilling to protect their citizens, the responsibility shifts to the international community. 69) Finally, the Outcome Document refers to the case in which national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. 70) Basically, the conditions to be met for the responsibility to protect are inability and unwillingness of government to protect civilian populations. The requirements in the Outcome Document are similar to the international crimes to be prosecuted by the International Criminal Court under its Statute although ethnic cleansing is not included in the Outcome Document. If the government commits such crimes, it is also subject to application of the responsibility. It is crystal clear that the Iraq war has not satisfied the conditions for the responsibility to protect. When the US- 64) Id., at 19, 65) Lee Feinstein & Anne-Marie Slaughter, supra note 47, at ) Id., at ) ICISS supra note 10, at 32, para ) The High-level Panel, supra note 34, at 66, para.203, and UN Doc. A/59/565, at 57, para ) Kofi A. Annan, supra note 35, at 49, para.135, and UN Doc. A/59/2005, at 35, para ) 2005 World Summit Outcome, supra note at 17, para.139.

19 38 RITSUMEIKAN INTERNATIONAL AFFAIRS Vol. 7 led coalition began the war, there were no such atrocities in Iraq. There is no doubt that Saddam Hussein s government did persecute minorities such as the Kurdish and the Shiite. However, the past event could not justify the use of force for humanitarian intervention. Thakur argues that the Iraq war would not have met our criteria for justifying intervention. 71) Gareth Evans, co-chair of ICISS, defends the responsibility to protect from such misuse of the concept. He is compelled to criticise the justification of the Iraq war relying on the concept, maintaining that [t]he biggest inhibitor of all to the ready acceptance of R2P as an operating principle has been the misuse of that principle in the context of the war on Iraq. 72) In his understanding, [t]he rational for coercive humanitarian intervention is not punishment for past sins, however grotesque, but to avert, here and now, threats to large numbers of people which actually occurring or imminently about to occur. 73) The threshold conditions imposed in the report of ICISS and other reports of the United Nations were not satisfied in the Iraq war. In addition to the element of just cause for the responsibility to protect, there is another question as to whether the right authority was given to the coalition to resort to unilateral military operation. The ICISS report does not necessarily exclude the possibility that some states use force for the prevention of human atrocities, if the Security Council fails to discharge its responsibility to protect. It takes into consideration the scenario in which following the failure of the Council to act, a military intervention is undertaken by an ad hoc coalition or individual state. 74) However, the UN documents published following the ICISS report reject the possibility of individual states using force. The High-level Panel report, A More Secure World, just says that the collective international responsibility to protect [is] exercisable by the Security Council authorising military intervention as a last resort. 75) The Secretary-General s report, In Larger Freedom, contemplates the enforcement action of the 71) Thakur, supra note ) Gareth Evans, From Humanitarian Intervention to the Responsibility to Protect, 24 Wis. Int l L. J. 703, 717 (2006). 73) Id. See also, Terry Nardin, Humanitarian Imperialism, 19:2 Ethics & Int l Aff. 21, 25 (2005). 74) ICISS, supra note 10, at 55, para ) The High-level Panel, supra note 34, at 66, para. 203, and UN Doc. A/59/565, at 57, para.203.

20 2009 Responsibility to Protect Democracy as a Robust International Legal Order YAMAGATA 39 Security Council under the Charter of the United Nations. 76) The Outcome Document follows this argument and suggests the cooperation with relevant regional organisations as appropriate. 77) There was at least no clear and express authorisation of the Security Council in Res.1441 (2002). The responsibility to protect does not intend to add new legal grounds for recourse to force by individual States with the aim of unilateral humanitarian intervention for democracy to the authorised collective enforcement measures enshrined in the Charter of the United Nations. 2. Normative Nature of the Responsibility to Protect The Iraq war cannot be justified on the basis of the responsibility to protect. As a matter of international law, the responsibility to protect is entangled with legal difficulties. First of all, the Security Council is required to determine the existence of any threat to the peace, breach of the peace and act of aggression, before it takes procedures in Chapter VII of the UN Charter. This determination is a necessary requirement for enforcement measures to be taken under Chapter VII. A question is posed as to whether large scale loss of life and large scale ethnic cleansing may be determined as a threat to the peace or not by the Security Council. It is doubtful that they would constitute a threat to peace and activate the Chapter VII procedures. In the case of Somalia, the Security Council determined that the magnitude of the human tragedy caused by the conflict in Somalia constitutes a threat to international peace and security. 78) It did not refer to any international consequence. Thus it may be safely argued that any internal conflict of a considerable scale can constitute a threat to international peace and security. 79) Although internal conflicts may enable the Security Council to take enforcement measures, it is necessary that an element of an armed conflict should be included. Therefore, large scale loss of life and large scale ethnic cleansing which were not caused by armed conflicts might not trigger the Chapter VII procedures. The responsibility to protect might enlarge the notion of peace 76) Kofi A. Annan, supra note 35, at 49, para.135, and UN Doc. A/59/2005, at 35 para ) 2005 World Summit Outcome, supra note 17, at 30, para ) UN Doc. S/RES/794 (1992) adopted on 3 Dec ) Frowein & Krisch, Article 39, in Bruno Simma ed., The Charter of the United Nations: A Commentary (2nd ed.), vol.1, at 724 (Oxford: Oxford UP, 2002). It is said that [v]iolence need not cross borders to justify the Security Council involvement when certain human rights norms are being violated. Alicia L. Bannon, The Responsibility to Protect: The

21 40 RITSUMEIKAN INTERNATIONAL AFFAIRS Vol. 7 or the threat to the peace and as a result expand the scope of activities of the Security Council, but a progress of the practice is to be made in this regard. Secondly it is difficult to oblige the Security Council to discharge the responsibility to protect, because the five permanent members are given a veto power to refuse a resolution. The ICISS report makes a suggestion that the permanent members should agree on the code of conduct to limit the exercise of that power to the cases which do not involve a significant humanitarian crisis. 80) Under that code, a permanent member, in matters where its vital interests were not claimed to be involved, would not use its veto power to obstruct the passage of what would otherwise be a majority resolution. 81) This proposal comes from the fact that an amendment of the Charter is almost impossible to be made. That is why the constructive abstention is hinted. Although the practice of the Security Council shows that abstention is not to be regarded as veto, every permanent member is reluctant to accept even such a soft approach to the veto power. If such a system is introduced, they will not use the Security Council for authorisation to use force, 82) but dare to do so unilaterally or refuse to contribute to operation of peace enforcement. They would be inclined to regularly hold closed meetings and consultations before going to the public voting. 83) Thirdly, although ICISS expects the General Assembly and regional organisations to take positive steps as alternatives to the Security Council, there are some legal obstructions to bar them from enforcement measures. The report of ICISS says that one possible alternative would be to seek support for military action from the General Assembly meeting in an Emergency Special Session under the established Uniting for Peace procedures. 84) However, the General Assembly is allowed to take collective measures, including in the case of a breach of the peace and act of aggression the use of armed force when necessary to maintain U.N. World Summit and the Question of Unilateralism, 115 Yale L. J. 1157, 1159 (2006). 80) ICISS, supra note 10, at 51, para ) Id. 82) The Dutch report says that such change could ultimately mean that the permanent members come to see the Security Council as an increasingly unsuitable forum for agreeing on possible intervention. The Dutch report, supra note 9, at ) Mrco Odello, Commentary on the United Nations High-level Panel on Threats, Challenges and Change, J. Conflict & Security L. 231, 243 (2005). 84) ICISS, supra note 10, at 53, para.6.29.