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Legitimacy faultlines in international society: The responsibility to protect and prosecute after Libya

Published online by Cambridge University Press:  08 October 2014

JASON RALPH  and
ADRIAN GALLAGHER
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Abstract

There is a perceived legitimacy deficit in contemporary international society. A symptom of this is the political contestation surrounding the 2011 Libyan crisis and its influence on the 2011–13 Syrian crisis. This involved criticism being levelled at the coalition led by the so-called Permanent-3 for the way they implemented the protection of civilians mandate, as well as for the referral of the Libyan situation to the International Criminal Court. How the P3 respond to these developments will be driven in part by how this ‘legitimacy fault line’ is interpreted. The purpose of this article is to first give an interpretation that is informed by the work of contemporary English School scholars and the political theorists they draw on; and second to provide the context in which specific policy recommendations may guide the response of the P3 states. We argue that because the new legitimacy fault line divides on the procedural question of who decides how international society should meet its responsibilities rather than substantive disagreements about what those responsibilities are (that is, human protection and justice) the challenge to the liberal agenda of the P3 is not radical. However, we also argue that ignoring the procedural concerns of the African and BRICS states is not outcome neutral and could in fact do harm to both the ICC and the wider implementation of R2P. We consider two proposals for procedural reform and examine how the P3 response would impact on their claim to be good international citizens.

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Articles
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Review of International Studies , Volume 41 , Issue 3 , July 2015 , pp. 553 - 573
Copyright
Copyright © British International Studies Association 2014 

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References

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25 Beetham, The Legitimation of Power, p. 73.

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29 Ibid., pp. 109–17.

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33 Reus-Smit, ‘Liberal Hierarchy’, p. 88.

34 Ibid.

35 Following Clark, the P3 might be understood as a collective form of hegemony that bases ‘its appeal on its effectiveness, namely that it manages to provide the desired public goods’ but this inevitably has cost in terms of their ‘representational credentials’. Clark, Hegemony, p. 67.

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37 Beetham, The Legitimation of Power, p. 82; Clark, Hegemony, p. 58.

38 Hurrell, On Global Order, p. 87. See also Clark, Hegemony, pp. 58, 153–8.

39 Ibid.

40 See Andreopoulos, ‘The Challenges and Perils of Normative Overstretch’.

41 Bull, The Anarchical Society, p. 80.

42 Beetham, The Legitimation of Power, p. 28.

43 Reus-Smit, ‘International crises of legitimacy’, p. 164. ‘Where one needs legitimacy will depend … upon where one seeks to act, and the relevant constituency will be determined by the realm of political action. We know all too well, though that a disjuncture often exists between an actor's realm of political action and the community in which they actually command legitimacy, deliberately or otherwise. I shall term this community “the social constituency of legitimation”, the actual social grouping in which legitimacy is sought, ordained, or both.’

44 Of the ten elected members two (Lebanon and India) were not party to the Rome Treaty.

45 Antoinette Louw, ‘Perspectives on Africa's Response to the ICC's Arrest Warrants in the Libya Situation’, Situation Report, Institute for Security Studies (22 July 2011), pp. 5–6, available at: {http://www.africaportal.org/dspace/articles/perspectives-africa%E2%80%99s-response-icc%E2%80%99s-arrest-warrants-libya-situation} accessed 17 July 2014.

46 Louw, ‘Perspectives on Africa's Response to the ICC's Arrest Warrants’, p. 5.

47 African Union, ‘Decision on the Implementation of the Assembly Decisions on the International Criminal Court’, Doc. EXCL/670(XIX), Assembly of the Union, Seventeenth Ordinary Session, Malabo, Equitorial Guinea (30 June–1 July 2011).

48 African Union ‘Decision on the Implementation of the Decisions on the International Criminal Court (ICC)’, Doc. EX.CL/731(XXI), Assembly of the Union, Nineteenth Ordinary Session, Addis Ababa (15–16 July 2012).

49 Jalloh, Charles C., Akande, Dapo, and du Plessis, Max, ‘Assessing the African Union Concerns about Article 16 of the Rome Statute of the International Criminal Court’, African Journal of Legal Studies, 4:1 (2011), pp. 7–8 CrossRefGoogle Scholar; pp. 22–6; see also Mills, Kurt, ‘“Bashir is Dividing Us”: Africa and the International Criminal Court’, Human Rights Quarterly, 34:2 (2012), pp. 404–47CrossRefGoogle Scholar; Cilliers, Jakkie, Gumedze, Sabelo, and Mbadlanyana, Thembani, ‘Africa and the “Responsibility to Protect”: What role for the ICC?’, Irish Studies in International Affairs, 20 (2009), pp. 55–67 CrossRefGoogle Scholar.

50 While the British and French considered a deferral it was opposed by the US, see Bosco, David, Rough Justice. The International Criminal Court in a World of Power Politics (Oxford: Oxford University Press, 2014) pp. 145–6Google Scholar.

51 African Union, ‘Decision on the Implementation of the Assembly Decisions on the International Criminal Court’ (2011).

52 International Justice Resource Centre, ‘African Union Expresses Opposition to International Criminal Court Prosecutions and Seeks Postponement of Kenyatta Trial’ (16 October 2013), available at: {http://www.ijrcenter.org/2013/10/16/african-union-expresses-opposition-to-international-criminal-court-prosecutions-and-seeks-postponement-of-kenyatta-trial/} accessed 17 July 2014.

53 Michelle Nichols, ‘African Bid for Kenya Trials Deferral Fails at U.N. Security Council’, Reuters (15 November 2013), available at: {http://www.reuters.com/article/2013/11/15/us-kenya-icc-un-idUSBRE9AE0S420131115} accessed 18 July 2014. In its statement the UK put the onus on the Court's Assembly of State parties to resolve the issue, suggesting that it could stagger the trial date without a Security Council resolution under Article 16, available at: {https://www.gov.uk/government/speeches/uk-abstains-on-un-security-council-resolution-on-icc} accessed 18 July 2014.

54 African Union, ‘Decision on the Implementation of the Assembly Decisions on the International Criminal Court’ (2011).

55 For further evidence of the support for international criminal justice among African states see the proposal to expand the mandate an African Court of Justice and Human Rights so that it may prosecute individuals for international crimes such as genocide, crimes against humanity and war crimes. The AU vote to strip this Court of its power to prosecute heads of state does however suggest that there are limits to this support. Monica Mark, ‘African Leaders Vote Themselves Immunity From New Human Rights Court’, The Guardian (3 July 2014), available at: {http://www.theguardian.com/global-development/2014/jul/03/african-leaders-vote-immunity-human-rights-court} accessed 18 July 2014.

56 Jalloh et al., ‘Assessing the African Union Concerns about Article 16’, pp. 9–11.

57 This is in addition to the concern that UN Security Council referrals ‘will appear to many as profoundly unprincipled, given that three of the permanent members of the Council are not parties to the Rome Statute’. Welsh and Sharma, Operationalizing, p. 10.

58 Ralph, Defending the Society of States, pp. 163–6; Jalloh et al., ‘Assessing the African Union Concerns about Article 16’, pp. 16–21.

59 Kersten, Mark, ‘A Fatal Attraction? Libya, the UN Security Council and the Relationship between R2P and the International Criminal Court’, in Handmaker, Jeff and Arts, Karin (eds), International Law and the Politics of Justice (Cambridge: Cambridge University Press, 2013)Google Scholar. Resolution 1970's referral was limited to events after 15 February 2011. Kersten suggests that this may have been included ‘in order to shield key Western states from having their affairs and relations with Libya investigated’. Kersten, Mark, ‘Between Justice and Politics: The International Criminals Court's Intervention in Libya’, in Stahn, Carsten, De Vos, Christian, and Kendall, Sara (eds), International Criminal Justice and ‘Local Ownership’: Assessing the Impact of Justice Interventions (Martinus Nijhoff Publishers, 2013)Google Scholar.

60 Jalloh et al., ‘Assessing the African Union Concerns about Article 16’, p. 12. The perception of double standards is shared outside Africa. Commenting on the adoption of Resolution 1970, Brazil noted how it was ‘a long-standing supporter of the integrity and universalization of the Rome Statute, and opposed the exemption from jurisdiction of nationals of those countries not parties to it’. Quoted in Kersten, ‘Between Justice and Politics’, p. 7. See also the reaction to the failed resolution referring the Syrian situation. Mark Kersten, ‘Argentina Slams UN Security Council Over Syria’, Justice in Conflict (27 May 2014), available at: {http://justiceinconflict.org/2014/05/27/argentina-slams-un-security-council-over-icc-referral-entrenching-selectivity/} accessed 18 July 2014.

61 See, for example, chapters by Kathryn Sikkink, ‘The Role of Consequences, Comparison and Counterfactuals in Constructivist Ethical thought’; Amy Gurowitz, ‘Policy Hypocrisy or Political Compromise? Assessing the Morality of US Policy Toward Undocumented Migrants’; Lynch, Marc, ‘Lie to Me: Sanctions on Iraq, Moral Argument and the International Politics of Hypocrisy’, in Price, Richard M. (ed.), Moral Limit and Possibility in World Politics (Cambridge: Cambridge University Press, 2008), pp. 83–111 Google Scholar, 138–64, 165–96.

62 Secretary-General Ban Ki-Moon, ‘“Responsibility to Protect” Came of Age in 2011’, Address to the Stanley Foundation Conference, SG/SM/14068 (18 January 2012,) available at: {http://www.un.org/News/Press/docs/2012/sgsm14068.doc.htm}. See also his declaration that that ‘[b]y now it should be clear to all that the Responsibility to Protect has arrived.’ Ban Ki-moon, ‘Remarks at Breakfast Roundtable with Foreign Ministers on “The Responsibility to Protect: Responding to Imminent Threats of Mass Atrocities”’, UN News Centre (23 September 2011), available at: {http://www.un.org/apps/news/infocus/sgspeeches/search_full.asp?statID=1325} accessed 18 July 2014. Academic opinion echoed this. Tom Weiss noted how Libya ‘put teeth in the fledgling RtoP doctrine’, suggesting ‘that we can say no more Holocausts, Cambodias, and Rwandas – and occasionally mean it’. Weiss, Tom, ‘RtoP. Alive and Well After Libya’, Ethics and International Affairs, 25:3 (2011), pp. 1, 5 CrossRefGoogle Scholar. Catherine Powell even called Libya ‘a multilateral constitutional moment’. Catherine Powell, ‘Libya: A Multilateral Constitutional Moment?’, Georgetown Law Faculty Publications and Other Works, Paper 983 (2012), available at: {http://scholarship.law.georgetown.edu/facpub/983} accessed 18 July 2014.

63 As Bellamy, Alex, ‘Libya and the Responsibility to Protect: The Exception and the Norm’, Ethics and International Affairs, 25:3 (2011), p. 1 CrossRefGoogle Scholar. As further evidence, see Alex Bellamy, The Responsibility to Protect: Towards a “Living Reality”’, Report written for the United Nations Association, UK (April 2013), pp. 17, 19; Bellamy, Alex, ‘From Tripoli to Damascus? Lesson Learning and the Implementation of the Responsibility to Protect’, International Politics, 51:1 (2014), pp. 23–44 CrossRefGoogle Scholar.

64 Gareth Evans on ‘Responsibility to Protect’ after Libya. Interview with Gareth Evans by Alan Philips for The World Today, Chatham House, October 2012, available at: {http://www.gevans.org/opeds/oped132.html} accessed 18 July 2014.

65 David Reiff, ‘RtoP, RIP’, New York Times (7 November 2011).

66 See Bellamy, Alex, ‘Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention After Iraq’, Ethics and International Affairs, 19:2 (2005), pp. 31–54 CrossRefGoogle Scholar.

67 United Nations S/PV.6531 (10 May 2011), p. 18; see also United Nations S/PV.6627 (4 October 2011), pp. 22–3. See also Ruan Zongze, ‘Responsible Protection: Building a Safer World’, Chinese Institute for International Studies, 34 (May/June 2012), available at: {http://www.ciis.org.cn/english/2012-06/15/content_5090912.htm} accessed 18 July 2014.

68 Remarks of Gert Rosenthal, Permanent Representative of Guatemala to the United Nations at the informal discussion on ‘the Responsibility While Protecting’ organised by the permanent mission of Brazil to the United Nations, 21 February 2012, available at: {http://www.guatemalaun.org/bin/documents/IDRespon.while%20Protec.pdf} accessed 18 July 2014.

69 Guatemala stated in a Security Council debate on Syria for instance ‘that in an era when the principle of the Responsibility to Protect (R2P) is being questioned, we are not ashamed to affirm that, with some nuances that we have explained in other forums, we support that principle’. ‘Guatemalan Foreign Minister Calls on States' Responsibility to Protect during Security Council Syria Debate’ (31 January 2012), available at: {http://www.responsibilitytoprotect.org/index.php/component/content/article/35-r2pcs-topics/3967-guatemalan-foreign-minister-calls-on-states-responsibility-to-protect-during-sc-syria-debate} accessed 18 July 2014. See also statements by Russia and China at the General Assembly debate on 11 September 2013. They continued to raise concerns over the use of force, but affirmed their commitment to the preventive elements of R2P. The number of states expressing serious reservations about aspects of R2P is decreasing. Those who used the General Assembly debate to voice serious concerns were limited to Bolivia, Cuba, Ecuador, Malaysia, Nicaragua, Syria, and Venezuela. GCR2P, ‘“State Responsibility and Prevention”: Summary of the Informal Interactive Dialogue of the UN General Assembly on the Responsibility to Protect held on 11 September 2013’ (22 October 2013), available at: {http://www.globalr2p.org/media/files/summary-of-the-2013-r2p-dialogue.pdf} accessed 18 July 2014.

70 Oral Evidence at the Defence Committee, 12 October 2011, available at: {http://www.publications.parliament.uk/pa/cm201012/cmselect/cmdfence/uc950-ii/uc95001.htm} quoted in Ralph, Jason, ‘The Liberal State in International Society. Interpreting Recent British Foreign Policy’, International Relations, 28:1 (2014), p. 17 CrossRefGoogle Scholar.

71 See conclusion of the UK's Defence Committee Ninth Report of 2010–12, Operations in Libya (25 January 2012), p. 7 quoted in Ralph, ‘The Liberal State in International Society’, p. 17.

72 United Nations S/PV.6627 (4 October 2011).

73 Interview in National Interest (19 June 2013), available at: {http://nationalinterest.org/commentary/behind-russias-syria-stance-8623?page=2} accessed 18 July 2014.

74 Jenifer Welsh, ‘What a Difference a Year Makes’ (5 February 2012), available at: {http://opencanada.org/features/syria-un/} accessed 18 July 2014.

75 On the vote against military action in the UK parliament see Jason Ralph, ‘Written Evidence to the Foreign Committee Inquiry on Government Foreign Policy towards the United States’ (8 October 2013), available at: {http://data.parliament.uk/writtenevidence/WrittenEvidence.svc/EvidencePdf/1952} accessed 18 July 2014. In December 2013 France deployed a small force to the Central African Republic. Hugh Carnegy, ‘French Troops Deploy in Bid to Halt CAR Bloodletting’, Financial Times (8 December 2013), available at: {http://www.ft.com/cms/s/0/7cecc91e-6000-11e3-b360-00144feabdc0.html#axzz2n5rz9X77} accessed 18 July 2014.

76 United Nations A/66/551–S/2011/701, ‘Letter dated 9 November from the Permanent Representative of Brazil to the United Nations addressed to the Secretary-General’, available at: {http://www.un.int/brazil/speech/Concept-Paper-%20RwP.pdf} accessed 18 July 2014. Brazil, China, Ghana, and India referred to RWP in the General Assembly debate on 11 September 2013. GCR2P, ‘State Responsibility and Prevention’, p. 3. For a related development see the S5 (Jordan, Liechtenstein, Costa Rica, Singapore, and Switzerland) draft resolution presented to the General Assembly on 4 April 2012, and ultimately withdrawn. It emphasised ‘the need for further measures to ensure the accountability, transparency, inclusiveness and representativeness of the work of the Security Council, with a view to strengthening its effectiveness and the legitimacy and implementation of its decisions’. Mie Hansen, ‘The S5 Presents Draft Resolution on the Improvement the Working Methods of the Security Council’ (10 April 2012), available at: {http://www.centerforunreform.org/node/473} accessed 18 July 2014. See also Rita Emch, ‘Swiss want to “democratise” Security Council’ (29 March 2012), available at: {http://www.swissinfo.ch/eng/politics/foreign_affairs/Swiss_want_to_democratise_UN_Security_Council.html?cid=32381282} accessed 18 July 2014.

77 Zongze, ‘Responsible Protection: Building a Safer World’. For a view that this offers ‘reason for confidence that it may be possible to recreate international consensus, so long missing in Syria, about how to deal with the hardest mass-atrocity cases’, see Gareth Evans, ‘Protecting Civilians Responsibly’, Project Syndicate (25 October 2013), available at: {http://www.project-syndicate.org/commentary/on-moves-by-china-and-other-brics-countries-to-embrace-humanitarian-intervention-by-gareth-evans} accessed 18 July 2014.

78 For the argument that RwP could complicate the intervener's task and make them more reluctant to commit see the comments made by Australia's Ambassador Quinlan. ‘On a possible monitoring mechanism, we are open to exploring how the Security Council can ensure its members are properly informed about and able to debate all relevant issues regarding a military mandate. We see this as crucial to maintain the ongoing legitimacy of any Council authorised action. Existing reporting mechanisms in the Council may need to be strengthened, for example through the availability of more detailed military briefing to members.’ Yet he added ‘The Council should not, of course, be in the business of micromanaging military operations, but if there are sound answers to concerns of Council members, they should be made available.’ ‘Responsibility while Protecting Statement’ by H. E. Mr Gary Quinlan, Ambassador and Permanent Representative of Australia to the United Nations (21 February 2011), available at: {http://www.responsibilitytoprotect.org/Australia%2021%20Feb%20RwP.pdf.} accessed 18 July 2014. See also Bellamy, who cites the UN peacekeeping operation in Bosnia as an example of where the UN had a ‘bad experience with excessive political interference in military matters’. Responsibility to Protect. Towards a “Living Reality”’, p. 32.

79 ‘Responsibility while Protecting Statement’ by H .E. Mr Gary Quinlan.

80 Clark, Hegemony, p. 62.

81 Jalloh et al., ‘Assessing the African Union Concerns about Article 16’, pp. 26–37.

82 Ibid., p. 37.

83 Ibid., pp. 29–35.

84 Ibid., p. 12.

85 Clark, Hegemony, pp. 175–6.

86 Such language evokes the Realist critique of interwar idealism. But as E. H. Carr noted liberal international orders are not destined to fail. If liberal hegemony is to survive ‘it must … contain an element of give-and-take, of self-sacrifice on the part of those who have, which will render it tolerable to the other members of the world community’. Carr, E. H., The Twenty Years’ Crisis, 1919–1939. An Introduction to the Study of International Relations (London: Macmillan, 1939), p. 213 Google Scholar. Cited in Clark, Hegemony, p. 5. For an earlier application to the ICC see Ralph, Defending the Society of States, p. 217.

87 This point inspired by Beetham, The Legitimation of Power, p. 59.