Illegal but Lawful: The Responsibility to Protect

The responsibility to protect (R2P) is an illegal but legitimate conception that faces numerous challenges to becoming international law and a customary norm. The past misuse of R2P by the United Nations Security Council (UNSC) creates challenges to R2P that might be insurmountable; clarion calls of R2P being an arm of colonialism, and a tactic of self-interest are valid. So too are the methods at which we address intra-state conflict and combat global terrorism.  The dynamics between sovereignty, R2P, and global terrorism allow a nation to discount sovereignty in order to attack another country but claim sovereign rights when asked to protect another country’s population. R2P, if separated from those dynamics, can protect a population within an intra-state conflict, and a community invaded by an outside nation fighting terrorism. As such, R2P is a critical post-Cold War norm. Using the crisis in Syria, the argument that globalization causes any conflict, international or intra-state, to threaten international peace and security is made to support the validity to R2P.

Explanations, Creations, and Usability

The doctrine of R2P touches various other beliefs and norms in the international community. For instance, R2P deals with the rights and responsibility of a state regarding sovereignty, the United Nations’ (UN) role and how the UNSC acts, and the conditions of the second or third country and its population’s human rights. Because of this, explaining in details those standards, theories, and conceptions are necessary.

Explanation: State sovereignty and non-intervention in national affairs are bedrocks of the international system. Article 2 of the UN Charter cements sovereign equality and non-intervention (Weiss, 2014, p. 12). Simply put, all states have the same sovereign rights as others. Chapter VII of the UN Charter defines the rules of sanctions both forcible and non-forcible. With or without humanitarian justifications, only in cases of self-defense, or threats to international peace when the UNSC decides if a state can intervene in another country (Weiss, 2014, p. 12). Often cited in arguments against R2P, Article 2 and Chapter VII also contains the wording used to justify pre-emptive and preventative self-defense used to discount sovereignty in combating terrorism.

Creation: The R2P came about in the wake of the Rwandan and Bosnian genocides of 1994. This is often called collective guilt and the phrase ‘never again’ is tied to the Rwandan genocide and the desire for protections to mitigate grave human rights violations.  Bosnia and Rwanda, along with numerous other conflicts in the 1990’s, saw a norm shift surrounding humanitarian intervention from the right to response to an obligation to intervene (Nuruzzaman, 2013, p. 59). Whether or not this was a grand shift from state sovereignty to individual sovereign rights is hotly contested and at the core of the debate around R2P. Mohammed Nuruzzaman (2013) aptly defines individual sovereignty by saying a state is thus seen as nothing but a collective political unit created and owned by its citizens. The debate then shifts from national sovereignty, as guaranteed by the UN Charter principle of non-intervention in the domestic affairs of members states, Article 2.7, to how to protect the individuals in states from atrocities and promote individual sovereignty. (p. 59)

So what is R2P and is it legal or not? The International Commission on Intervention and State Sovereignty conceived the theoretical wording of R2P in 2001 and by the mid-2000’s the UN General Assembly adopted a working text of the doctrine (Nuruzzaman, 2013, p. 59). To summarize Nuruzzaman (2013) as well as the definition of R2P, it falls into three pillars or thematic areas (p. 61). First, individual states must protect their populations from atrocities. Second, if a state is unwilling or unable, the international community has the responsibility to protect. The third pillar is the collective response text found in the UN Charter demanding quick and decisive action to trouble countries.

As this essay is entirely about the legalities of R2P, only a few closing words and quotes for this sub-section are in order. The inspirational quote for the title of this essay came from Thomas Weiss. Weiss (2014) says of the legalities of R2P “the Independent International Commission on Kosovo. . . characterized it as illegal but legitimate” (p. 18). As of today, that quote still holds true and that is both disheartening and uplifting for human rights.

Usability: There has not been a single application of R2P that has been legitimate, justified, properly planned, and vetted. At worst, from its inception, developing nations have been incredibly skeptical of the actual reasons UNSC members, specifically the P5 states of Russia, China, the United Kingdom, France, and the United States, have used R2P (Nuruzzaman, 2013, p. 62). Some state officials were going so far as to call R2P redecorated colonialism (Weiss, 2014, p. 8). Russia cited R2P in its 2008 invasion of Georgia by claiming Georgian forces were committing genocide. However, the bulk of the international community saw Russia as seeking its interests in Georgia and no credible accounts of genocide (Nuruzzaman, 2013, pp. 61-62). France rather ridiculously tried to invoke R2P in Burma after a deadly cyclone hit the country in 2008 (Nuruzzaman, 2013, p. 62). While natural disasters do create severe humanitarian crises, R2P is a doctrine of protection in and around armed conflict. The United States tried as well to use R2P as a rational for the invasion of Iraq in 2003 (Nuruzamann, 2013, p. 61). Those are but small examples of the questionable use of R2P, however, the invasion of Iraq will resurface in the discussion later. The Arab Spring of 2011 which saw many conflicts in nations across Northern Africa and Western Asia represent the thickest nail in R2P’s coffin.

The UNSC’s quick pace at invoking R2P in Lybia, and its stagnate and rather negligent response to other Arab Spring nations, are the hardest arguments to overcome when defending R2P. The UNSC used R2P to justify its intervention into the conflict in Libya in 2011. Initially, the mission was not one of regime change but rather the protection of civilians. However, mission creep saw the goals move from protection to regime change. Russia with support from China, claims it did not agree to regime change when it voted in approval of using R2P within Libya (Zifcak, 2015, p. 79). This created a chasm in the UNSC that is still present today. Compounding matters, the UNSC failed to act reasonably in any other conflict in the Arab Spring. Arguably, Bahrain and Syria have seen greater atrocities committed on its people than Libya. Nuruzzaman draws a compelling connection between Libyan oil and Western business when concluding why the UNSC was absent in Bahrain and Syria (Nuruzzaman, 2013, p. 63-64). Nuruzzaman (2013) finishes his critique of R2P in saying “clearly, R2P has been largely discredited by Western abuses in Libya, the immobility of the Security Council over Syria, and the Council’s bizarre indifference to Bahrain and Yemen” (p. 66).

In concluding this sub-section on the usability of R2P, a summary of Aidan Hehir’s (2016) analysis of R2P is in order (p. 178). Hehir finds three trends in the application of R2P. First, a willingness to only use R2P in the context of the of Pillar I; second, an incoherent and biased understanding of collective response or Pillar III; and third, the priority of national interest over humanitarian concerns. Hehir’s analysis speaks to the notion that a nation will discount sovereignty to attack another country but claim sovereign rights when asked to protect another country’s population.


This final section will attempt to jumble together state sovereignty, individual sovereignty, and global terrorism to make a new claim for the importance of R2P. Simply stated, R2P must be the quid-pro-quo in return for granting states the right to discount the sovereignty of other countries in the face of an never ending supply of global terrorism. However, the logic of the ‘Bush doctrine’ towards preemptive strikes and the voluntary acceptance of those ideas by the international community potentially makes a case for R2P in and of itself. In an attempt to further redefine R2P in a more nuanced world of terrorism and intra-state conflict, the pathways of war in Syria will be drawn out to show any conflict will reverberate in the international system.

The Bush Doctrine: Christine Gray (2006) describes the Bush doctrine post-9/11 by quoting a US official as saying it is “to forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively in exercising our inherent right to self-defense” (p. 563). Cloaked in those words and almost left out is that the adversaries in question are not state actors and know no national boundaries. There is no distinction in a location under the Bush doctrine of fighting terrorism. Those who harbor knowingly or unknowingly are as complacent as the actual terrorist organization. (Gray, 2006, pp. 570-571).

By 2002 the doctrine was even devoid of any mention of the UNSCs maintenance of international peace and security (Gray, 2006, p. 563). Also by 2004, the UN was opinioning through a High-Level Panel that there is a customary law making anticipatory self-defense legal under Article 51 of the UN Charter (Gray, 2006, p. 566). While a quick and decisive self-defense is nothing new for state to state conflict, the truth is different for state versus non-state actors. Michael Scharf (2016) defines the truth in saying “use of force in self-defense has traditionally not been viewed as lawful against non-state actors in a third state unless they are under the effective control of that state” (p. 17). Arguably the doctrine goes much further than anticipatory self-defense and into preventative self-defense. Scharf (2016) defines this as “striking an enemy even in the absence of specific evidence of an imminent attack” (p. 46). Under the Obama administration, the Bush doctrine finds new ground through drone technology allowing soldiers at home to fly a remote drone over another nation to execute a targeted killing (Scharf, 2016, p. 47).

The Bush doctrine is the norm in which global terrorism is fought today and fully sanctioned by the UN. Specifically, Resolution 2249 on December 2, 2015, labels the terrorist organization ISIS as global and unprecedented threat to international security and peace (Scharf, 2016, p. 24). This is nothing more than bending the rules of sovereignty to justify the invasion of another country; it is merely for different reasons than the typical geopolitical maneuverings of the past. Terrorism does not know national boundaries, but the war fighting terrorism occurs within physical and political spaces all of the time. What is also guaranteed to happen all of the time is that the citizens who are non-combatants and the international community will be strained and challenged in any conflict, even against organizations that transcend national boundaries. If modern terrorism must have a response that disregards sovereignty on the altar of security; what is the check and balance for the people, where is the added protection of civilians who now face yet another legal form of slaughter when an invading nation destroys not only the terrorist organization but the national government and infrastructure?

Legal or Not: R2P, if embedded into domestic laws and supported equitably by the UNSC, can be a legal and customary norm. Norm creation is challenging and requires time. Justin Morris (2013) argues this in saying “the enabling and constraining effects of a norm will depend on the extent to which it is embedded with what is often highly contested normative space in which alternative conception of rightful behavior compete for the high ground” (p. 1267). R2P faces a daunting uphill battle when factoring in the shifting power dynamics argued to be moving east. As described by Morris (2013) if a shift in the authority within the UNSC moves from the Western nations to the Brazil, Russia, India, China, and Singapore which are skeptical of R2P opposition will increase (p. 1278). This if further compounded by the perceived movement of the US and UK political systems into more authoritative regimes.

The old paradigm of separating internal conflict from international conflict is dangerously ignorant because we encompass a densely interconnected global community. The best way to support this is to draw the linear connection of the US invasion of Iraq of 2003 to Syria today in 2017. The Iraq invasion destabilized the nation of Iraq and birthed the terrorist organization ISIS which has amplified to extreme levels the violence in Syria, which borders Iraq along with the greater Arab region. Scharf (2016) confirms this in saying “the majority of top ISIS decision-makers are former members of Saddam Hussein’s army, intelligence, and security forces” (p. 21).

The inverse proves to be even more international. As war rages on in Iraq and Syria at the hands of the international community, terrorist organizations and state actors, a hemorrhaging of refugees are straining the global system – specifically the European Union. Under Chapter VII of the UN Charter, the UNSC must intervene when a conflict poses a threat to international security and peace. The Bush doctrine globalizes the fight against terrorism which is also globalized as shown through Iraq and Syria. This also grants the UNSC the authorization to use R2P to its precise wording because of the international threats. Demanding a quid-pro-quo with R2P to the freedom to fight terrorism is merely icing on the cake. However, the text and authorization of our methods of fighting terrorism are where the actual justification of R2P has a home.

Conclusion: The R2P sits uneasily between an area of legality and unlawful legitimacy. In some ways, R2P is an affront to the sovereign rights of a state and rightfully seen as colonialism. This is not because of the merits of R2P but rather in the biased and slanted use of R2P by the UNSC and its permanent members. The use of R2P in Libya for regime change frightened developing nations, specifically Russia, which in turn caused the R2P to be absent in the rest of the countries struggling through the Arab Spring. The Bush doctrine of combating global terrorism and the international community’s willful sanctioning of those tactics has globalized the war on terror and discounted the sovereign rights of states. For better or worse, the doctrine is the current norm of combating terrorism. However, because of the globalizing nature of fighting and the UNSC mandate to intervene in a conflict that threatens international security and peace, it may be the very thing that truly gives R2P legal footing. Clearly, this argument becomes mute if the methods of fighting terrorism are disallowed, and this essay does not shy away from agreeing to a change in how we combat terrorism as the preferable route to achieving greater protection overall. However, in today’s day and age of tricky facts, we must find the good in the same subject matter we opinion others find the bad.


Gray, C. (2006). The Bush Doctrine Revisited: The 2006 National Security Strategy of the USA. Chinese Journal Of International Law5(3), 555-578.

Hehir, A. (2016). Assessing the influence of the Responsibility to Protect on the UN Security Council during the Arab Spring. Cooperation & Conflict51(2), 166-183.

Morris, J. (2013). Libya and Syria: R2P and the spectre of the swinging pendulum. International Affairs89(5), 1265-1283.

Nuruzzaman, M. (2013). The “Responsibility to Protect” Doctrine: Revived in Libya, Buried in Syria. Insight Turkey15(2), 57-66.

Scharf, M. P. (2016). How the war against ISIS changed international law. Case Western Reserve Journal Of International Law48(1-2), 40(28), 15-67.

Weiss, T. G. (2014). Military Humanitarianism: Syria Hasn’t Killed It. The Washington Quarterly37(1), 7-20.

Zifcak, S. (2015). What happened to the international community?: R2P and the conflicts in South Sudan and the central African republic. Melbourne Journal Of International Law16(1), 52-85.

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