The involvement of the United States, Russia, and other countries in the Syrian civil war is tied up in the ongoing discussion about the international legal bases for interfering in a sovereign nation’s affairs. While intervention for humanitarian purposes is not a new idea, conflicts in regions such as Rwanda and Kosovo in the 1990s motivated the United Nations to develop a more clearly defined doctrine guiding the use of military force in response to major human rights violations. David A. Andelman, editor emeritus of World Policy Journal, spoke with Brigadier General Richard C. “Rich” Gross, U.S. Army (retired), former legal counsel to the chairman of the Joint Chiefs of Staff, about the concept of Responsibility to Protect and the various implications of invoking this principle to legitimize military action.
DAVID A. ANDELMAN: The subject that primarily interests me is the idea of “Responsibility to Protect.” Tell me about how the military would define this right now.
BRIGADIER GENERAL RICH GROSS: To start with, let’s discuss the three bases under international law for using military force and violating another country’s sovereignty. The first would be consent, where a nation-state consents to have you come into their sovereign territory and take some sort of action and use military force. The second would be a U.N. Security Council resolution that authorizes nation-states to use “all means necessary”—that is the language that is typically used—to use military force in a nation-state to accomplish some goal or some end as defined by the U.N. Security Council resolution. The third international legal basis for the use of force is self-defense, whether that’s a nation-state’s self-defense or collective self-defense, which is recognized under the U.N. Charter. Those are the three traditional legal bases under international law.
What have arisen are two different but related concepts that are not legal bases for use of force, but rather international norms or political commitments. The first is humanitarian intervention, a concept that pre-dates the U.N. Charter, probably dating back to the 18th or 19th century. Humanitarian intervention is this concept that a state may use military force against another state in order to protect the human rights of the citizens of the state against whom force is being used. It’s the idea that you can violate another state’s sovereignty if that state is taking certain actions against its own citizens that violate something in the human rights realm.
A broader concept, which we have seen since some of the humanitarian disasters of the mid to late 90s, is the Responsibility to Protect. Humanitarian intervention can be seen as a subset or related concept, depending upon whom you listen to, because the international community is all over the map on both of these concepts. The Responsibility to Protect became an item of interest to the international community following the Rwandan genocide, where U.N. Secretary-General Kofi Annan wanted to have a means for nation-states to go in and protect citizens of other countries, not just with military force, but also with diplomacy, sanctions, or other means, although military force might be the last resort.
Canada in 2000 that formed a council to study the idea of how nation-states see this responsibility to protect. Then in 2005, at the United Nations World Summit, all the nation-states and the General Assembly signed on to this idea that there was this responsibility to protect. This concept, again, is not a legal basis for use of force, but really a political commitment that each state has a responsibility to protect its own population from four things: genocide, war-crimes, ethnic cleansing, and crimes against humanity. Each state had a responsibility to protect its own citizens, and if a state failed to protect its own citizens, then the international community has a responsibility to use diplomatic, humanitarian, and other peaceful means to help protect populations, and then, in the final step, with a U.N. Security Council Resolution, the right to go in and protect the population using military force.
One of the key differences between this older humanitarian intervention idea and the newer responsibility to protect is that under humanitarian intervention nation-states saw that as a right to intervene without a U.N. Security Council resolution, whereas with the newer responsibility to protect, it is generally seen—though not unanimously—as necessary to have a U.N. Security Council resolution to use force. A great example of humanitarian intervention in action is from the late 90s in the Kosovo air campaign where NATO, without expressly saying so, conducted a humanitarian intervention. Without a U.N. Security Council resolution, without a self-defense basis, and without any other international legal basis, NATO went in and conducted the Kosovo bombings to end that conflict. That is seen by some as the first modern use of humanitarian intervention and perhaps of the responsibility to protect. It is not a settled or clear doctrine; different people have different ideas about what each concept means and when a nation is authorized to use military force or other means.
DA: In a way, the Syrian intervention could be under the umbrella responsibility to protect although there is a formal U.N. resolution suggesting that forces can go in. Is that a fair understanding?
RG: No, there is not a U.N. Security Council resolution for Syria that authorizes the use of force, and that is an example of this controversy surrounding humanitarian intervention and responsibility to protect. If you back up a little bit, to Libya, there was a U.N. Security Council resolution that authorized force in order to allow nation-states to protect the civilian population of Libya. That was, in a sense, a responsibility to protect resolution to give nation-states that authority. NATO’s air campaign not only protected the civilian population but also resulted in regime change and Gadhafi’s death. In particular, China and Russia saw the NATO actions in Libya as going further than the authority of the U.N. Security Council resolution. They criticized some of the actions of NATO in going further than just protecting the civilian population—that in fact, they went in and overthrew the regime.
DA: Though they went in and contravened as well in Syria.
RG: When it came to Syria, it was pretty clear that neither China nor Russia would support a U.N. Security Council resolution to intervene in Syria’s civil war because of what they had seen in Libya. That’s when you again saw this conversation start to develop in the international community about whether there is a need to intervene in Syria absent of a U.N. Security Council resolution, because everyone knew that Russia and China would likely veto a resolution to use force in Syria against the Syrian regime.
DA: In the Syria case, seems to me that the Russians could conceivably have invoked that unless they did not want to risk that being a precedent in the future that could be used against them in some other parts of the world.
RG: I’d say just the opposite, they have the consent of Syria to come in, at least against ISIS, so they’ve used Syria’s consent to enter Syria. They don’t necessarily need to invoke Responsibility to Protect. Many people feel Russia did in fact invoke Responsibility to Protect in Crimea and the Ukraine, if you look at the language that Russia used in intervening. They harkened back to Responsibility to Protect language, and that’s one of the criticisms of that doctrine. It can be misused, depending on one’s perspective, by nation-states to conduct bad activities and violate other nations’ sovereignty.
DA: Most of the United Nations have signed on to this concept of responsibility to protect, even some countries that might have it invoked against them, right?
RG: They signed on to this political commitment. It doesn’t authorize military force; under the current concept, one still has to have a separate U.N. Security Council resolution to use military force under the responsibility to protect doctrine.
DA: What other way is there of enforcing it? Responsibility to protect implies the use of military force. Diplomatic persuasion in most cases does not work. So responsibility to protect means a military force will be used? It is toothless unless backed up with some kind of military force, presumably.
RG: The political commitment document from the 2005 U.N. World Summit is clear that any force is a last resort and has to be independently authorized by U.N. Security Council resolution. You don’t have, under the U.N. doctrine, an independent right to use military force, whereas humanitarian intervention, the older concept, included a right to intervene militarily if you’ve met certain criteria in order to protect human rights of citizens from violation.
DA: Your last function at the Department of Defense was as legal counsel to the chairman of the Joint Chiefs of Staff. So, without asking you to violate attorney-client privilege, shall we say, was that concept ever discussed in relation to individual incidents or regional problems? Did that ever come into play as a doctrine that the U.S. needed to consider at some point?
RG: Certainly, with respect to Syria, I don’t think it’s a violation to say that there were a lot of people discussing that. In public statements by the Obama administration and other folks, you can see that the responsibility to protect came up in that setting—that there were some considering invoking that doctrine as a means of resolving the conflict in Syria as [President] Assad was using chemical weapons and other violent means against his own citizenry.
DA: As a potential argument before the Security Council for some kind of resolution—which never took place, as you rightly point out—that could be invoked to suggest that force might be appropriate to resolve this issue, no?
RG: Well, either you would have to get a U.N. Security Council resolution to use force or you would have to invoke an independent humanitarian intervention basis to use force against President Assad to stop his human rights violations against his own people. That is a big step because when a nation decides to invoke that and use force as they did in the Kosovo air campaign in the late 90s, you’re setting a precedent that can be seen as legitimizing the use of force without a legal basis. That allows other countries in other situations that we may not agree with, like Russia’s annexation of Crimea, to invoke this same doctrine. The more it’s done, the more state practice there is, the more it looks like a legal basis for the use of force. There is certainly a lot of criticism of humanitarian intervention and the responsibility to protect, claiming it destroys our traditional understanding of sovereignty. On the other side, there are people who get frustrated when sovereign bad actors do bad things to their own citizens and the rest of the world feels somewhat helpless to step in and try to prevent those atrocities.
DA: There are a few countries, including Britain, that have taken this a step further in terms of how they would implement it in some fashion. Could you talk a little bit about that?
RG: The United Kingdom has explicitly recognized responsibility to protect and humanitarian intervention as a legal basis for the U.K. to step in, and they set three conditions. They did this back in January 2014.
DA: Around that time, or perhaps a little bit after, Parliament actually refused to allow the Brits to join the United States in some kind of an action against following the use of chemical weapons in Syria.
RG: You’re exactly right about the timing, the U.K. government was asked by Parliament about this right of humanitarian intervention and responsibility to protect, and they responded by saying yes, we believe there is a legal basis there, international law would allow such a thing. But afterward Parliament declined to authorize the use of force. That was right around the time when President Obama went to Congress and said he would like the authorization to use force, and that never transpired.
DA: When the Brits and the French turned it down, the U.S. basically backed off. In a sense, again, it’s a case of if you can’t back it up with cruise missiles, making intervention a legal possibility like the British Parliament may have done doesn’t mean much if they are going to turn right around and say no, you can’t use force in that particular instance.
RG: There is another way of looking at it: by creating this political commitment and norm of responsibility to protect, what all nation-states have agreed that a nation-state cannot do harm to its own citizens carte blanche while everybody else turns a blind eye. What it does do is say that we are all responsible as a global community. We’re responsible for doing something to stop those nation-states from hurting their own citizens. In that sense, it is an important development in the idea of sovereignty. It says that sovereignty is not an absolute. There are times when a nation-state is a bad actor and other nation-states have to step in. In that sense, even if you don’t get to military force, I think it is important to recognize that it does set up this paradigm shift in how other nation-states look at the actions of one bad actor against its own citizens. But as you pointed out, if you’re not willing to go to the point of using military force to enforce it, then it lacks teeth, as with many things. At some point, the U.N. Security Council might have to authorize force to go in and make it effective.
DA: The five Joint Chiefs were at the Council on Foreign Relations as they do every year. They came for their one pilgrimage last week, and they were asked about the new Republican candidate for president. They said they didn’t want to take a position on a political issue, but it would seem to me that we may be moving in a direction of having a more muscular military in the future, regardless of whether the winner is the Republican or Democratic candidate. Do you see this potentially as having legs, if you will, if in fact the stance of the United States and its allies shifts toward a more proactive function?
RG: It is conceivable, it depends on how any new administration would see the role of the United States in stepping into other nations’ affairs, such as at what level you enter and how bad is has to be within the country. For example, in Syria, there was use of chemical weapons; there were tens of thousands, if not hundreds of thousands of people dying. That did not rise to the point where the government said we were going to intervene even without an international legal basis. It is hard to say what a new administration would do when they were actually responsible for making those decisions. Certainly if other nations follow the United Kingdom’s lead and recognize responsibility to protect and humanitarian intervention as a legal basis under international law for using military force, then you might get to the point where more and more nations see that as legal and therefore more countries are willing to use force and step in. Again, there are critics who say that is a dangerous thing because it will open up the door for bad actors to fight humanitarian intervention or use responsibility to protect just as a means of stepping in and doing things like annexing Crimea.
DA: Do you have any final thoughts on whether responsibility to protect is worth pursuing more broadly? Is it a hope for the future, or is it simply another U.N. concept that has an interesting genesis but probably won’t have much impact on the ground?
RG: I’m not an expert on the U.N. structure, framework, or charter, but I will say that we are seeing over the last several years, and since Libya in particular, that more and more often the U.N. Security Council is not able to act or to make the hard decisions because China and Russia have national interests that are opposed to the national interests of the United States, the United Kingdom, France, and other Western nations. If there continue to be stalemates on the U.N. Security Council and they are unable to make tough decisions about resolutions to step in and use force where there ought to be force used, then I think you will see a growing level of frustration with the U.N. framework and the U.N. process, and nation-states might look to other means like humanitarian intervention to step in. I don’t know if responsibility to protect will ever go anywhere unless the U.N. process gets better. That possibility is something for U.N. Security Council experts to consider.
This interview has been edited and condensed for clarity.
[Photo courtesy of Senior Airman JoAnn S. Makinano]