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Journal of the Communist Party of Australia

ISSUE 67April 2018

On the illegality of war

Part 4

The creation of an opinio juris for anticipatory self-defence

Carty identified how the British Government used the invasion of Iraq to try to achieve the entrenchment in international law of an expanded, pre-emptive, self-defence doctrine. Like Kritsiotis, he distinguished between the official legal justification put forward by the British Government for the war – Iraq’s alleged breach of the historic Security Council resolutions reviving Resolution 678 from the Gulf War[1] – and other arguments made by the British Government for political and public consumption.[2]

Carty identified the justification put forward by the British Government to Britain’s parliament and people for the war: the supposed heightened threat posed by Iraq’s alleged possession of weapons of mass destruction. He argued that the British Government’s strategy was directed towards obtaining “the consent of Parliament and the acquiescence of public opinion to the invasion”, which would “drive” the British state into action.[3] This approach served the aim of achieving the ultimate incorporation of the doctrine of anticipatory self-defence in international law. The invasion itself would constitute the necessary material element of British state practice, while the intended inference to be drawn from the arguments put to Parliament and to the people by the Government in justifying the invasion was that there was the necessary subjective element – the opinio juris of the British state.[4]

The International Court of Justice had long confirmed that the actual practice of states and their opinio juris are the primary constitutive elements of rules of customary international law.[5] For the opinio juris pre-condition to be satisfied, the state or states seeking to rely on a putative rule must accept it as binding in law,[6]

the acts concerned ... must also be such, or be carried out in such a way, as to be evidence of a belief that [the] practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, ie the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis ... The States concerned must therefore feel that they are conforming to what amounts to a legal obligation.[7]

In elucidating how the British Government presented its arguments justifying the invasion of Iraq in anticipatory self-defence terms, Carty[8] looked at statements of government ministers including Prime Minister Blair, and various policy and other documents both before and after the March 2003 invasion. One was the September 2002 British Government Intelligence Dossier which stated in one part that Iraq had “chemical warfare stocks which would enable Iraq to produce significant quantities of chemical weapons within weeks.”[9] Citing Kampfner’s conclusions, Carty described how in the period from 2001 to 2003, Blair suggested the world would face a threat on a huge scale if the Iraqi Government provided chemical and biological weapons to terrorists, he also alluded to that Government’s history in regards to weapons of mass destruction, and said that “at some point the danger will explode.”[10] This argument echoes that put forward by the US Government in its formulation of the anticipatory self-defence doctrine in its National Security Strategy about the magnitude of potential threats validating anticipatory action, even when a threat is not imminent. As if to underline the distinction from the Caroline formula for states legitimately exercising self-defence short of actual attack (when the threat is “instant, overwhelming, leaving no choice of means, and no moment for deliberation”) British Foreign Secretary Straw indicated in June 2003 that neither he nor Blair had described the threat from Iraq as imminent, but rather as current and serious.[11]

In March 2004, Blair made a speech in relation to the invasion of Iraq, in which he questioned the limited conception of self-defence allowed for in the UN Charter, and referring to the “global threat” posed by terrorists and by states holding weapons of mass destruction, stated, “we surely have a duty and a right to prevent the threat materialising”.[12]

The totality of what the British Government was saying in these years – the delineation of a supposed threat of vastly increased magnitude which, it asserted, justified scope for pre-emptive military action beyond the limits provided for in the UN Charter and in existing customary international law – demonstrated that its intention was that the invasion of Iraq would be a precedent for the eventual incorporation of the anticipatory self-defence doctrine in international law. The invasion itself would meet the state practice element necessary for a new rule of customary international law, while the perception created by the statements of the British Government, that Britain acted on Iraq out of its sense of legal obligation to remove a threat to the world posed by Iraq’s supposed weapons of mass destruction capability, would be an evidentiary contribution to satisfying the required opinio juris element.

As we have seen, the US too aimed at the incorporation of anticipatory self-defence as a principle of international law. The articulation in 2002 of the magnitude of threat rationale in the National Security Strategy as a justification for attacking Iraq, was clearly intended as a contribution to the formation of the necessary international opinio juris. The Strategy expressed that development in the law on pre-emptive self-defence was necessary; that in view of “the capabilities and objectives of today’s adversaries” the US would in effect be compelled to take anticipatory action to defend itself.[13]

Ideological contest for peace

The attempt by the imperialist powers (in the face of the tenacity of the post-war UN Charter order constraining the use of force) to forge an expanded notion of anticipatory self-defence and to incorporate it in international law, evidences how, even for the imperialist powers, the scope of available action for states to pursue their ends had been limited by the UN Charter order. It also points to ideological contest over the meaning of legal concepts as being a primary factor in the development of international law; the ideological contest in the present case being over the question of the validity of the use of force by states.

We have seen earlier that international law is susceptible to amelioration. Its apparently neutral and autonomous form – ambivalently maintaining the status quo while simultaneously constraining powerful states – ensures this. It is not static, but changes in dynamic interaction with the social and political forces that shape it in the course of class struggle. What form international law takes at any particular time is determined by the prevailing balance of those forces. This means that international law is open to the possibility of appropriation by progressive forces in the cause of “counter-hegemonic”[14] struggle.

Applying a deconstructionist understanding and methodology anchored in dialectics reveals that the social and political conflict underlying the development of international law manifests itself in the legal arena in ideological conflict over the meanings of legal concepts. For example, in the present context, the disputes over whether there could have been implicit UN Security Council authorisation for the use of force against Iraq, and the scope of the self-defence exception to the UN Charter prohibition on the use of force by states.

The attempt by the governments of the imperialist states, around their invasion of Iraq, to win political and popular acceptance of the idea that the putative legal principle of anticipatory self-defence would validate in law those states’ use of force against other states, exemplifies the dialectical process central to the development of international law. Arguing for a particular legal position is, in the immediate sense, one way in which the government of a state tries to achieve the political support or acquiescence of the people of the state that is necessary to drive the state into action. At the same time, implicit in this legal argumentation is recognition of the existence of opposition to a proposed course of action. In countering this opposition, states feel obliged to at least appear to provide a legalistic rationale for their proposed action.[15]

At the level of re-shaping international law, a government and its ideologues will be able to claim on the basis of the decisive, actuating support of the people (if achieved) the existence of an opinio juris (the legal notion of a state’s subjective understanding of its obligations and rights under international law) for the action of the state. If this outcome is replicated by a sufficiently wide number of states,[16] and particularly the most powerful ones,[17] both in terms of action and opinio juris, a new rule of customary international law will be deemed to exist.[18]

Though with its own distinct role in the evolution of international law, ideological conflict is, of course, only one of multiple factors determinative of the form international law comes to take, and is also one form in which the other factors play out. As Chimni said about the character of contemporary international law:

It is shaped by a range of factors including: (i) the dominant understanding of the history of international law; (ii) the cohesiveness and strength of the class that occupies centre stage at the global level of a particular historical conjuncture; (iii) the nature and logic of the states system; (iv) the role of non-state actors, including international institutions and civil society organisations; (v) the strength of domestic and international resistance movements; and (vi) the internal dialectic of international law. Each of these factors may play a decisive role, depending on the subject, arena and political conjuncture of law-making.[19]

Chimni also identified the thrust of imperialist ideology in the present era around the specific question of the use of force by states. Identifying the unravelling of the UN Charter framework in the post-Cold War era, Chimni said that in this period of “accelerated globalisation” there has been an attempt “to redefine the norms relating to the use of force in order to realise the current interests of imperialism”.[20] The US “the foremost imperial state ... seeks to change the rules of the game” so as to legitimise the military action of the imperial state which is “crucial to the overseas expansion of transnational capital”.

The quest for incorporation in international law of an expanded pre-emptive self-defence doctrine is integral then to “an emerging bourgeois imperial international law ... [and] global political domination.”[21]

In justifying the 2011 NATO intervention in Libya, its proponents argued a case for a liberal interpretation of international law’s prohibition on the use of force by states. Speaking on the television programme Q&A, then-US ambassador to Australia, Bleich, stated:

The situation in Libya was clear cut ... under the standards that have been laid out not only by the United Nations but as we’ve seen progress on humanitarian aid assistance and protection over the course of the last few decades. First you had an international mandate by a lawmaking body. The UN Security Council had these two resolutions, 1970 and 1973. Second you had a commitment by a wide coalition of nations to step in. It wasn’t just one or two countries but instead you have countries from every region of the world, including the Arab League and, third, you had a direct, imminent threat to humanity. ... Under those circumstances that was a good case for the duty to protect and the international community stepped up ... .[22]

As with the invasion of Iraq, the advocates of military action in Libya conflated different legal concepts to claim that the foreign aggression was valid in law. In this case, Bleich blended together a UN Security Council authorisation–humanitarian intervention argument tinted with a version of a pre-emptive self-defence rationale, all wrapped in the cloak of the relatively new responsibility to protect doctrine, to justify the aggression. [23] The ultimate purpose of this argumentation with its loose reasoning is to achieve a re-definition of the international law on the use of force. More recently, there were the arguments made by the US and its allies that the government of Syria had used chemical weapons against its population and had committed grave humanitarian crimes. In light of the US-led military aggression against Syria, including a campaign of air strikes on that country since 2014, these accusations can be understood as having been intended to prepare the ideological ground for a putative legal justification for foreign intervention in Syria.

In the attempt to re-define international law on the use of force in the interests of the imperialist powers and transnational capital, the pronouncements that come from the powerful imperialist states satisfy “the element of opinio juris ... to a great extent ... .”[24] However, to repeat, it is not a straightforward process, and even the governments of powerful states have to ensure their actions have legitimacy in the eyes of their own populations,[25] hence their ideological offensives (for example, Bush in 2002 proposing the anticipatory self-defence doctrine to the US Congress).[26] Their aim is to win the acceptance of their own peoples of the legal interpretations they put forward, to ground their aggressive actions, but also to forge an evidential basis towards satisfying the opinio juris element justifying military aggression, while the military interventions themselves will satisfy the state practice element; both elements necessary for a liberal interpretation of the exceptions to the prohibition on the use of force by states to become entrenched in international law. Thereby, they hope, international law will be re-defined: effectively in favour of imperialist aggression.

To repeat: the need to argue a case also implies the existence of opposition, and specifically of alternative interpretations of the law on the use of force by states. It follows that there is the potential for the opposing views to influence the international law outcome. Given what is known about international law, there is a point to progressives presenting counter-arguments which assert the UN Charter’s prohibition against the use of force by states (save in the most limited circumstances), so as to ensure popular and political support for that position and by so doing bolster the prevailing, universal opinio juris in favour of it.

VI. Conclusion

International law is part of the superstructure of international society. It primarily serves to further the interests of the dominant transnational capitalist class, including helping ensure the global domination of the powerful imperialist states.

Legal concepts such as the formal equality and sovereignty of states obscure the relations of substantive inequality between states, while being the very premise of the apparatus of rules and mechanisms by which international law ensures the compliance of states with its principles and decisions. The formal equality and sovereignty of states concepts give international law its appearance of neutrality and autonomy and, thereby, its ideological authority as manifested in the willing acceptance of international law by less powerful states.

This seeming neutrality and autonomy is of course illusory, for in the interpretation and operation of international law, the interests of the transnational capitalist class and its representative states still tend to prevail (through unequal treaties, for example). [27] This is merely to observe, however, that the form of any political or legal system cannot be understood apart from its social content, which provides its real meaning.

It follows too, that international law changes with the historical, unfolding of the class struggle in capitalism. Ideological conflict over the meaning of legal concepts is an expression of the social conflicts within capitalism, and in turn helps determine what international law really stands for at any point in time in interaction with other factors (eg the strength and cohesion of the dominant class, the states system, international institutions, and the internal dialectics of international law). International law’s peculiar form of apparently neutral, and autonomous regulation of relations between ostensibly equal, sovereign states – while serving its primary function of helping maintain the global status quo – simultaneously enables it to be a mechanism for change. There is potential here that international law can be pushed in a substantively progressive direction because of these inherent contradictions. The relative strength of the conflicting social forces is decisive in determining the role international law is to play, with qualities such as political understanding, aims, and organisation being critical. It is a matter of how successfully the contending forces are able to exploit the peculiarities of the international law form so as to be able to appropriate it to serve their interests.

The system of international law that emerged from the Second World War demonstrated international law’s susceptibility to transformation in a progressive direction. In the context of the post-war struggles by millions across the world to free themselves from colonialism, the incorporation into international law of the principle of self-determination marked a decisive break with the old understanding of the principle of state sovereignty in international law. With the Soviet Union, the newly independent states of Asia, and the new socialist states playing the leading role in campaigning for incorporation of the right to self-determination in the basic legal instruments of the United Nations, the meaning of “sovereign equality” of states in the UN framework[28] was qualitatively transformed from being a description of the relative status of bourgeois imperialist states with each other, to a recognition that the new socialist and post-colonial states were on the same footing as these other states. In broader historical terms, the significance of this development was that it represented the break with the old colonial system of subjection and dependence of many peoples and countries and a step towards true internationalism.

The emergence of increasing numbers of newly independent states in turn had a cumulative impact on re-shaping international law. The legitimisation of progressive national liberation movements, such as the African National Congress and the Palestine Liberation Organisation, was achieved with profoundly positive political consequences. There was also the drive to give political and economic substance to the formally equal status enjoyed by the newly independent states. The efforts to achieve equity in the international law of distribution met with some success. For example, following the efforts of the newly independent countries through UNCTAD and the Group of 77, the developed industrialised world eventually agreed to the incorporation into the GATT agreement of the principle of special and differential treatment to third world countries. This amounted to a partial appropriation of the international law on trade in the interests of developing countries.

None of this is to say that there is some innate quality in international law that drove and compelled its own liberalisation. That would be to invest the bourgeois legal form with the kind of mystical, determinative power that the Pashukanites credit it with. Rather, it is the case that the system of international law that had evolved – largely due to the successful struggles of oppressed peoples and states for national independence and equality of status, in conjunction with the progressive demands made by democratic political forces in developed countries – was formally neutral and autonomous, which paradoxically enabled its appropriation by particular interests. Its form meant that international law was supremely malleable while maintaining its structural integrity.

Compelled by the moral and political imperative of history, manifested in the deaths of at least up to 50 million people and cataclysmic destruction of the Second World War, and with the victory over reaction of the democratic and progressive world view (embodied in the United Nations) driving the development, the most significant advance in international law was the codification in the UN Charter of the prohibition on the use of force by states. This represented the expression of the universal opinion that military aggression was no longer an acceptable strategy for states to pursue in conducting their affairs.

The UN Charter’s Article 2(4) general prohibition on the use of force by states, was the culmination of an historical tendency to increasingly limit the circumstances when war is legally justified: for example, the Caroline case principle that a state may only resort to self-defence if it is faced by an imminent and overwhelming threat, the limitations on “resort to war” contained in the League of Nations Covenant after the First World War, and the 1928 General Treaty for the Renunciation of War.[29] In essence, Art 2(4) of the UN Charter was a declaration that war is illegal; certainly war understood as the use of force by nation-states against other nation-states. Such use of force could only be legally justified if it complied with one of the two exceptions to the fundamental prohibition: self-defence (itself confined) or UN Security Council authorisation.

The post-Second World War international legal order, characterised by the abolition of formal colonialism, the movement made towards redistributive justice (and therefore real equality) for developing countries, and the hope it offered for the achievement of lasting world peace, came under attack from resurgent imperialism in the 1980s and 1990s. With the collapse of the Soviet Union and the socialist governments of Eastern Europe, the TNC-led globalisation drive was unleashed with its programme of economic and political penetration and subjugation of nations by powerful capitalist interests. To this end, the leading imperialist powers embarked on an ideological strategy of narrowing the meaning of state sovereignty so as to de-legitimise the existence of certain states and legitimise military assaults against them and others. This also involved an effort to broaden the parameters of the self-defence and UN Security Council authorisation exceptions to the fundamental prohibition on the use of force by states. Thus there has been the promotion of the various doctrines of humanitarian intervention, pre-emptive self-defence, and implicit Security Council authorisation for military interventions, championed by the leading imperialist powers (in Yugoslavia and Iraq, for example). These powers are the best placed militarily to exploit for their own ends the loosening of restrictions on the use of force.

Appropriating international law is on one level an exercise in ideological persuasion. For the logic of international law’s form as autonomous, neutral regulator of relations between equal, sovereign states – the thing that makes it acceptable to the less powerful states, thereby ultimately founding its authority – dictates that the widest possible audience of nations must be convinced of the correctness, the legality, of its rules and principles and of actions purportedly taken pursuant to it.[30] This is the context in which progressive forces and the less powerful states can and must assert their version of international law, rather than embrace legal nihilism. Above all, they must struggle to preserve the integrity of the dominant post-Second World War legal understanding that the use of force by states is fundamentally prohibited in international law.[31] A pressing imperative today given the US-led military aggression against Syria and its war planning directed at China. The necessity for such ideological struggle is rooted in the necessity for struggle to build a better world, remembering that the world is shaped in struggle, and with the lesson of the progressive advances achieved in international law in the twentieth century in mind.

The struggle for the dialectical appropriation of international law forms and principles is not an abstract ideological exercise. Ultimately, it is another form of the class struggle. Advances achieved in international law nourish other forms of progressive struggle, be it, for example, through providing “external legitimation and ideological self-empowerment” for national liberation movements, or, again, by providing a regulatory framework for the achievement of some redistributive justice for poorer countries such as through the institution of the principle of special and differential treatment in trade towards developing countries. The potential cumulative effect of such reciprocal operation of international law upon economic, social, and political life, is to help facilitate further social transformation; even through contributing to that development of the material conditions of production which are the essential prerequisite for the emergence of higher forms of social organisation.

Of course, this interactive process is dynamic and complex, posing problems and dangers as well as opportunities, and thus requires astute political leadership – particularly from Communists – to chart the way forward. However, the promise is immense, including, most importantly, the achievement of a truly peaceful world. It is imperative therefore that progressives fight to defend that most fundamental principle of the post-Second World War international legal order, the one with universal resonance given the circumstances of its promulgation – the prohibition of the use of force by states – and assert its real, if unspoken, meaning.

War is illegal.

[1] Which in 1990 had authorised the use of force against Iraq over its invasion of Kuwait.

[2] Carty, “The Iraq Invasion as a Recent United Kingdom ‘Contribution to International Law’ ”, pp 144 -145.

[3] Carty, “The Iraq Invasion as a Recent United Kingdom ‘Contribution to International Law’ ”, p 144.

[4] Carty, “The Iraq Invasion as a Recent United Kingdom ‘Contribution to International Law’ ”, p 144.

[5] In Nicaragua v United States of America, ICJ Reports (1986) 14 at [183], the International Court of Justice said (quoting from an earlier case – Continental Shelf (Libyan Arab Jamahiriya Malta), ICJ Reports (1985)): “ ‘It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States ...’ ”. See Harris, Cases and Materials on International Law, p 869.

[6] See Harris, Cases and Materials on International Law, p 41 referring to the North Sea Continental Shelf Cases, ICJ Reports (1969) 3.

[7]North Sea Continental Shelf Cases, ICJ Reports (1969) 3 at [77]: see Harris, Cases and Materials on International Law, p 31.

[8] Carty expressly relied on Kampfner’s analysis in Kampfner, J., Blair’s Wars, (Free Press, 2004): see Carty, “The Iraq Invasion as a Recent United Kingdom ‘Contribution to International Law’”, pp 144 - 145.

[9] Referred to in Carty, “The Iraq Invasion as a Recent United Kingdom ‘Contribution to International Law’ ”, p 145.

[10] The Blair quote is referred to in Kampfner, Blair’s Wars, p 198: see Carty, “The Iraq Invasion as a Recent United Kingdom ‘Contribution to International Law’”, p 145.

[11] Carty, “The Iraq Invasion as a Recent United Kingdom ‘Contribution to International Law’”, pp 145 – 146.

[12] Carty, “The Iraq Invasion as a Recent United Kingdom ‘Contribution to International Law’”, p 146.

[13] See Bothe, “Terrorism and the Legality of Pre-emptive Force”, pp 231 – 232.

[14] Chimni, “Marxism and International Law”, p 346.

[15] Remembering that powerful states rely on international law to safeguard their interests, and that they recognise the potency of the idea of the Rule of Law in the international system, they are wary of openly flouting it. (Please see earlier discussion at “De-mystification of the Rule of Law”).

[16] The practice of states needs to be “extensive and virtually uniform”: see North Sea Continental Shelf Cases, ICJ Reports (1969) 3 at [74] in Harris, Cases and Materials on International Law, p 30.

[17] Chimni, “An outline of a Marxist course”, p 72. As Chimni put it, the winning of acceptance for new rules of customary international law: “calls forth an interpretative exercise that vests power in [powerful states]” who are also better placed “to prevent the application of a customary norm inimical to their interests” (p 72).

[18] See North Sea Continental Shelf Cases, ICJ Reports (1969) 3 at [74] and [77] in Harris, Cases and Materials on International Law, pp 30 - 31. See also commentary at Harris, p 41.

[19] Chimni, “An outline of a Marxist course”, p 60.

[20] Chimni, “An outline of a Marxist course”, p 87.

[21] Chimni, “An outline of a Marxist course”, pp 87 - 89.

[22] See transcript of Q&A programme “Confessions of Kevin” broadcast on the ABC, 4 April 2011.

[23] Ultimately the NATO assault on Libya was authorised by UN Security Council Resolution 1973 (2011) which incorporated reasoning of the “Responsibility to Protect” doctrine. In 2005 the UN General Assembly in its Resolution 60/1 adopted the Outcome of the 2005 World Summit of government leaders which included an affirmation that each State “has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity”. In elaborating on this “Responsibility to Protect” doctrine, the Outcome went on to state world leaders’ commitment to take “collective action ... through the Security Council in accordance with the [UN] Charter” if necessary because peaceful means were inadequate and national authorities were failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. The UN Security Council in its Resolution 1973 (2011) authorising NATO’s assault on Libya, employed the responsibility to protect doctrine, and it did so again in 2014 and 2015 in Resolutions 2165 and 2258 respectively, authorising humanitarian assistance passage across Syria. See also: Zifcak S, “The Responsibility to Protect After Libya and Syria” [2012] 13 Melbourne Journal of International Law 1 at pp 6 - 7; Bellamy AJ, “Libya and the Responsibility to Protect: The Exception and the Norm” (2011) 25 Ethics & International Affairs 263 - 269.

[24] See Chimni, “An outline of a Marxist course”, p 72.

[25] Chimni, “An outline of a Marxist course”, pp 62 – 63.

[26] With the announcement of the National Security Strategy.

[27] See Chimni, “An outline of a Marxist course”, pp 58, 63 - 64, 71 - 72. Chimni explained how the historical circumstances for the emergence of international law facilitated its development as a system in which the interests of the transnational capitalist class and imperialist states usually prevail. It is the modern capitalist state which is the central subject of international law, and this state (“a function and form of social relations”) appeared “representing the transition from feudalism to capitalism” in Europe in the sixteenth and seventeenth centuries. Coexisting from the outset “with the colonial state in an evolving capitalist world economy”, a structure that “spawns uneven development between states” and that is essentially imperialist in character, this capitalist state system “indelibly” marked “the body of international law” (p 58). Refer also to Miéville’s useful historical discussion of the development of international and maritime law in relation to “the mercantilist state-building process” involving European imperial powers, such as the English and Dutch, in their colonial expansion in the seventeenth century: Between Equal Rights, pp 204 - 224.

[28] UN Charter, Art 2(1).

[29] With regards to the General Treaty for the Renunciation of War 1928, Harris points out that: “Somewhat ironically, 63 states, i.e. virtually the whole of the international community at that time, were parties to the Treaty when the Second World War started in 1939.” Obviously, given the Second World War and the formation of the United Nations, the General Treaty for the Renunciation of War has been effectively superseded by Art 2(4) of the UN Charter: Harris, Cases and Materials on International Law, p 861.

[30] This is also a reference to the notion of opinio juris, one of the constitutive rules of customary international law: the idea that states must believe that they have particular legal obligations.

[31] One area in which this purpose may be pursued today is in the interpretation of the doctrine of “Responsibility to Protect” adopted by the UN in 2005, and deployed in relation to the imperialist interventions in Libya (2011) and Syria (2014 continuing). This doctrine provides for international military intervention in states if necessary to protect populations “from genocide, war crimes, ethnic cleansing and crimes against humanity”. In its Resolution 60/1 of 2005, which included adoption of the Responsibility to Protect doctrine, the UN General Assembly affirmed the principle that states must refrain “from the threat or use of force in any manner inconsistent with the purposes and principles of the United Nations” and underlined that “collective action” under the doctrine must be pursued through the Security Council. In 2006 the Security Council in Resolution 1674, reaffirmed the Responsibility to Protect doctrine. In his 2009 report on implementing the Responsibility to Protect, the UN Secretary-General emphasised that the doctrine reinforced “the legal obligations of Member States to refrain from the use of force except in conformity with the [UN] Charter”, and that any military action in pursuit of the doctrine’s protective objectives, “must be authorized by the Security Council”. The statements by the UN General Assembly and the Secretary-General provide a basis for progressives to argue that the Responsibility to Protect doctrine does not a provide a legal justification for military interventions by states against other states that are inconsistent with the UN Charter, and in particular its fundamental prohibition on the use of force; and to oppose the doctrine’s proposed application in particular cases when that would be contrary to this interpretation. It is worth noting that the UN Security Council employed the Responsibility to Protect doctrine in relation to authorising NATO’s assault on Libya in 2011 in Resolution 1973. The Security Council again utilised the doctrine in authorising the passage of humanitarian assistance across Syria in Resolutions 2165 (2014) and 2258 (2015).

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