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International Liberalism and R2P. Have liberalists given up on the ICC?

bashar-al-assad-650x433Granted. The title is a little unfair. The truth is that I am only referring to Michael Ignatieff, but I have the impression that the point is extendible to other international liberals, or rather liberalists. This is pure perception. I would be very happy to be proven wrong. I encourage you to use the space below for that.

The UN inquiry mission on Syria has expanded their list of suspected war criminals. When they presented their report at the Human Rights Council on Tuesday, they assured that their evidence is solid enough to prepare any indictment at the International Criminal Court (ICC). Syria has not ratified the Rome Statute, but the case could be referred to the ICC by the UN Security Council, as it did unanimously with Libya in 2011 (Resolution 1970).

Michael Ignatieff gave an eloquent lecture at King’s College London on Monday. The title was “Legality, Legitimacy & Intervention After Ukraine”. Initially it said “Syria”, but I guess the organisers (or the speaker) decided to adapt the name to the most current events. In any case, Ignatieff talked about both countries.

At first he assured he was not going to advocate an intervention, but I suppose he could not help it and in the end he supported an action based on the idea of “Responsibility to Protect” (R2P), a concept proposed in 2001 by the ICISS, a commission he was member of. Ignatieff reminded the audience of the three basic requirements of R2P: a) the intervention must seek the protection of the civilian population as a whole, not only part of it (a certain ethnic group, for example); b) it must respond to an imminent and real threat or danger; and c) protection must be the real objective, not an excuse for spurious goals.

The meaning of R2P is different depending on who makes the case. For one group, when it comes to international crimes, morality trumps the law. In Ignatieff’s choice of words, “what is illegitimate cannot be legal”. Insofar the protection of the civilian population is the real goal, a military intervention is acceptable even if it breaches the legal procedure, in other words, even if the Security Council does not agree. Ignatieff argues that this was the case with Kosovo, an intervention that was backed by the Security Council ex post facto in 1999 (Resolution 1244). This is also the approach defended by other liberal academics (see Scott and Ambler‘s 2007 comparison of the cases of Kosovo and Iraq). Yet, for a second group, R2P is only acceptable if we respect the legal procedure, that is, through a Security Council resolution: “What is illegal cannot be legitimate”. This is the interpretation of the 2005 World Summit Outcome (paragraphs 138-139), formally endorsed by the Security Council in 2006 (Resolution 1674).

In my view, both interpretations of R2P have essential problems. If the rule of R2P is based on legality (via Security Council), the argument becomes tautological, because the obligation is binding only when the subjects who are supposed to be bound, the Security Council itself and through them all UN Member States (Article 25 of the UN Charter), decide so. However, if it is based on “legitimacy”, understood in Ignatieff’s sense, R2P becomes unauthoritative because it lacks an essential element of decision-making: Somebody must make the decision. From a liberal institutionalist perspective, the point of having institutions is to prevent the strong from doing what they want and to empower the weak not to suffer what they must. How does a “legitimacy-based” R2P ensure that?

The ICC Statute has been ratified by 122 countries to this day. The creation of this permanent international tribunal responded to the need to close the door of any save haven to world-class international criminals responsible of genocides, crimes against humanity and war crimes. It was inspired by the generalised guilt stemmed from Rwanda and the former Yugoslavia in the early 1990s, and it moved in line with the initial steps of the universal jurisdiction, starting from attempt of prosecution of Pinochet in 1998.

However, Ignatieff only talked about R2P. He made no reference whatsoever to the need to bring cases to the ICC, a possibility that may be diplomatically tough at this point, but no less than sending troops on the ground to Syria, and even less so to Ukraine. I wonder why. Have liberalists given up on the ICC?

Koldo Casla


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