The Need to De-Link RtoP from International Criminal Law

In an article in the most recent volume of the Virginia Journal of International Law (http://www.vjil.org/articles/when-are-international-crimes-just-cause-for-war), I explore the relationship between the Responsibility to Protect (RtoP) doctrine and international criminal law. In particular, I question whether RtoP as articulated in the 2005 World Summit Outcome Document (Outcome Document) appropriately limits the doctrine’s applicability to situations involving genocide, war crimes, ethnic cleansing, and crimes against humanity. Although RtoP was originally conceived as an alternative to the controversial doctrine of “humanitarian intervention,” it has evolved into a much broader set of proposed norms of state responsibility. Limiting recognition of states’ responsibilities to international crimes (plus the undefined “ethnic cleansing,” which often amounts to a crime against humanity) thus undercuts the promise of RtoP, which should aim to encourage states to protect their populations from a much wider range of harms, including, for example, those stemming from economic and environmental factors. Moreover, the Outcome Document’s recognition that states bear a responsibility to protect their populations from international crimes essentially states the obvious.

Given the controversy surrounding humanitarian intervention, the Outcome Document’s recognition that the international community may take collective action, through the Security Council, when national authorities fail to protect their populations from international crimes represents an important step on the road to developing a norm of legitimate military intervention in pursuit of humanitarian goals. However, limiting the “just cause” for such intervention to international crimes was a mistake. As just war theory attests, just cause for intervention depends on the gravity of actual or threatened harm, not on whether the elements of an international crime are met. In fact, the reliance on international crimes results in an intervention threshold that is both over- and under-inclusive. It is over-inclusive because not all international crimes are sufficiently serious to constitute just cause for intervention. Small-scale war crimes, for instance, are unlikely to meet any just cause threshold. The threshold is also under-inclusive because the restriction to international crimes precludes military intervention under RtoP in circumstances where it is likely justified under relevant moral norms. This is because international crimes generally require an evil intent that is not necessary for military intervention to be morally justified. Such intervention may be justified, for instance, in certain cases of very large-scale harm due to natural disaster.

Linking RtoP to international crimes not only fails to identify an appropriate threshold for RtoP’s application, but also threatens to undermine the international criminal law regime in several ways. First, in light of the widespread belief that intervention requires widespread harm, linking RtoP to international crimes promotes the idea that international crimes also require large-scale harm. In fact, however, international criminal law should be available to address smaller scale crimes, in particular war crimes, in order to fulfill the preventive and expressive functions of the law. Moreover, linking RtoP to international crimes may encourage states to resist identifying events as international crimes for fear of triggering a responsibility to intervene, thereby impeding the development of international criminal law. Finally, by obscuring the question of when harm is grave enough to warrant humanitarian intervention, RtoP fails adequately to differentiate such intervention from the crime of aggression. Although the Outcome Document limits humanitarian intervention to Security Council-authorized actions, some states have indicated that they do not accept that limitation. When states engage in unilateral humanitarian intervention, it will be particularly important to have a widely accepted just cause threshold to guide international prosecutors.

You might wonder why it matters how the Outcome Document articulates RtoP, which, after all, is not binding in any way. In my view, RtoP represents an important rhetorical means of framing arguments about the moral, and perhaps legal, legitimacy of intervention for humanitarian purposes. RtoP has already proven a powerful tool for norm promotion on the contested issue of military intervention, and, to a lesser extent, has served to encourage other forms of intervention. Fixing RtoP’s just cause threshold is therefore important not because RtoP currently dictates intervention outcomes, but because it helps to frame international discourse regarding the legitimacy of intervention. Labeling something an “RtoP situation” influences decision makers, at least some of the time. Moreover, if its powerful supporters are successful, RtoP may eventually become a legal norm that governs intervention.

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