Dr Patrick M. Butchard writes on the legal avenues through which the responsibility to react to mass atrocities can be discharged beyond a deadlocked UN Security Council.
It is a sad reality that the United Nations (UN) Security Council has often failed to protect populations from genocide, war crimes, crimes against humanity, and ethnic cleansing. This reality is both true to the past and the present state of international affairs. But while lessons can certainly be learned from these failures, and there are still some successes to be championed, paralysis and inaction of the UN Security Council does not mean that the international community’s responsibility to protect ceases to exist.
In this ECR2P Fresh Perspectives post, I will summarise the key arguments of my book, The Responsibility to Protect and the Failures of the United Nations Security Council, explaining how the responsibility to protect continues to exist and require action from the international community – even where the body with the powers and primary responsibility to do so fails in its main functions. Omitting some of the more technical legal points, the key steps to unlocking the legal capabilities of the United Nations and the international community to respond, legally, to mass atrocity situations will be detailed here.
Of course, there are some caveats to these arguments. While the research uncovers avenues to use coercive measures beyond the Security Council, this does not necessarily mean they should be utilised in every circumstance. Although the research suggests that the use of military force may also be permissible when recommended by the General Assembly, this does not mean that it is a suitable solution in any given situation. But the point of the research is clear: there may come a point when peaceful means are inadequate – the words of paragraph 139 of the 2005 World Summit Outcome itself. Where words and talking simply do not make a difference. Where a peaceful and political solution is possible, but the parties need to be persuaded to seek that solution. Where atrocities are being committed and people need to be protected. Such crisis points necessitate the international community’s responsibility to protect.
The Responsibility to Protect and UN Security Council Failure
There is a clear connection between the UN Security Council’s responsibility to protect, and its primary responsibility to maintain international security. This connection is critical to the continuation of the responsibility to protect beyond the Security Council. While the responsibility to protect is, currently, a political undertaking, the responsibility to maintain international peace and security has a strong legal foundation in Article 24(1) of the UN Charter.
This legal foundation, I argue, is a very clear legal obligation to uphold international peace and security. This is strengthened by Article 39 of the Charter, which sets out how the UN Security Council should respond to a possible situation of a ‘threat to the peace, breach of the peace, or act of aggression.’ Specifically, it states:
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
This is more than just a procedural obligation to unlock the far-reaching powers of the Security Council. It is an obligation to investigate, substantiate and decide whether a situation requires appropriate action. It is a provision that empowers the Security Council, but it also obliges the Council too – to fulfil its primary responsibility to maintain peace and security, and is very clear on the options open to the Council to do this.
But is this an obligation to act? Many would argue that this cannot be the case, and from the drafting of the Charter to more recent examples, States have been careful not to oblige the Council to act in any specific way. But Article 39, in conjunction with Article 24(1), is far more nuanced than a reckless requirement to act without considering the nuances of a situation. It is, however, a clear legal requirement that the Security Council must not do nothing. While there is no specification on how the Council should act, it is very clear in requiring that the Council does not remain silent and indifferent. In simple terms, inaction is illegal.
Such inaction – such failures – would therefore mean the breach of a legal obligation by the Security Council, the consequences of which are important for the reasons that follow.
The Responsibility to Protect Beyond Inaction
The responsibility to maintain international peace and security may be the primary responsibility of the Security Council, but it also resides residually in two other ‘actors’. The UN General Assembly has responsibility for the maintenance of international peace and security, recognised by the UN Charter itself and also the International Court of Justice. Moreover, the international community more widely also holds residual responsibility for this, which is evident from the fact that Members of the UN originally ‘conferred’ this responsibility on the Security Council via Article 24(1).
When the Security Council fails, this responsibility reverts to those actors who have residual responsibility for the maintenance of international peace and security. Because this is a legal responsibility, this means that those who pick up the mantle must also, in law, find a way to resolve the situation.
So, what does this mean for the responsibility to protect? Mass atrocity crimes are arguably a threat to, if not a breach of, international peace and security. But the Security Council itself has recognised such humanitarian crises as amounting to such a threat (see for example UNSC Res 1970 (2011)). When a situation reaches this threshold, the responsibility to protect continues with the responsibility to maintain international peace and security.
The 2005 World Summit Outcome recognised that it is the international community who ‘are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter.’ So, strictly speaking, the responsibility to protect is held residually by the international community. The responsibility to maintain peace and security, however, is also held by the General Assembly, and there is still a role for the UN to play before the international community at large must assume its responsibilities beyond the UN.
Coercive Action When the Security Council Fails
In situations so dire that the Security Council can be considered to have ‘failed’ in its responsibility to maintain peace, we would likely be in a situation where ‘peaceful means are inadequate’. Although the responsibility of the international community to take all peaceful measures necessary to protect populations still subsists, the responsibility to protect still requires timely and decisive action where these have proved to be inadequate. That responsibility does not stop with the UN Security Council.
But what can be done by the General Assembly, or indeed the international community?
Just because a legal responsibility may revert back to the General Assembly or the international community, this does not mean that those actors have the same powers as the Security Council. Therefore, it was necessary to also explore what legal avenues are actually available to respond to mass atrocities when the Security Council does not.
The prohibition of force in Article 2(4) of the Charter is paramount. It is undeniable, despite some States’ best efforts to argue otherwise, that the drafters of this provision rendered any unilateral use of force beyond self-defence unlawful. Therefore, there is no way to argue that the international community has the same legal powers to use force as the Security Council – that is just not the case, and there is no ‘right’ of humanitarian intervention in international law.
However, the prohibition of force is much more nuanced than an outright prohibition. Rather than self-defence and the powers of the Security Council constituting legal ‘exceptions’ to an all-encompassing prohibition, in reality the drafters of the Charter sought to leave room within the prohibition itself for these lawful uses of force. This is because both self-defence and the powers of the Security Council are compatible with, and simultaneously limited by, the requirements in Article 2(4) that force must not be used against the territorial integrity or political independence of a State, or in any other manner inconsistent with the purposes of the United Nations. I have written on this ‘original intention’ of the drafters previously, and this point has also been covered more recently elsewhere.
The point is, from this principle-based approach to the prohibition of force, there is room for both the Security Council, and the General Assembly, to recommend the use of force. This power to recommend force, I argue, is absolutely within the competences of the General Assembly under Article 10, and is similar to the Security Council’s recommendatory powers under Article 39.
So, the General Assembly can recommend force. But that is not sufficient to solve the problem of inaction, because in some situations military force may not be the right response both practically and strategically.
Non-forcible but still coercive measures are another alternative. The doctrine of countermeasures, under the law of State Responsibility, also provides an avenue for the General Assembly to recommend a side set of ‘sanctions’. Specifically, detailed research on the possibility of third-party countermeasures reveal a workable avenue in customary international law for States to adopt coercive measures in response to mass atrocity crimes.
There are many legal and procedural safeguards to the doctrine of countermeasures – further reasons why coercive action beyond the Security Council should be taken through international institutions such as the General Assembly that can legitimise the actions taken. The world must be united in the face of atrocity crimes – and so unilateral action, while it could be legal in some circumstances, may risk the legitimacy and effectiveness of necessary coercive measures against a perpetrator State.
Admittedly, more creativity may be needed to ensure the effectiveness of sanctions beyond the usual targeted asset freeze or trade restrictions, but the doctrine of countermeasures allows for such creativity. Because countermeasures allows for the suspension of most types of legal obligation, so long as that action is proportionate, responses can be targeted in a way that would pressure a perpetrator State to cease its actions and push them on the path to a political solution.
Unlocking the United Nations
There may be many political reasons why the General Assembly has not stepped in to react to the harrowing number of atrocities being committed globally in recent years. This post has sought to outline the legal framework and demonstrate that there is legal room for action to be taken beyond the Security Council, protected by clear international legal safeguards so that these powers cannot be abused, and legitimised by the use of a democratic process in the General Assembly. This is no attempt to warmonger or heighten tensions where this is unwise or unnecessary. Merely an attempt to say, “here are the tools and powers you have to protect our fellow populations.”
But this post also seeks to demonstrate one important issue. It is not enough that action can be taken beyond the UN Security Council – the resumption of the legal responsibility to maintain international peace and security obliges that the world must take some sort of action. Inaction is not enough. Inaction is yet another failure of responsibility. Inaction is illegal, and that itself will come with its own consequences that we must all seek to avoid.
Dr Patrick Butchard
Patrick Butchard is a Lecturer in Law at Edge Hill University. From September 2020, he is also a Parliamentary Fellow at the International Affairs and Defence Section of the House of Commons Library. All views expressed in this post are personal. This blog post is based on the arguments made in ‘P M Butchard (2020), The Responsibility to Protect and the Failures of the United Nations Security Council, (Oxford: Hart Publishing)’.
Title image credit: Patrick Gruban, cropped and downsampled by Pine / CC BY-SA (https://creativecommons.org/licenses/by-sa/2.0). https://commons.wikimedia.org/wiki/File:UN_General_Assembly_hall.jpg
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