Written evidence from Dr Adrian Gallagher (RTP0008)

Short bio. Dr. Gallagher is an Associate-Professor in the Department of Politics and International Studies at the University of Leeds. He is also a Research Director at the European Centre for the Responsibility to Protect. He has published widely on the Responsibility to Protect and Humanitarian Intervention. In his professional service to the UK Government he has acted as an oral expert witness to the House of Commons Defence Committee on on 'The situation in Iraq and Syria and the threat posed by Islamic State in Iraq and the Levant’ and also to the House of Commons on the ‘The Question of Genocide Determination and the Response of the International Judicial System’.

Title. The Responsibility to Protect and the unresolved authority dilemma: the Uniting for Peace Resolution as an alternative solution

Executive Summary. The Responsibility to Protect (RtoP) agreement failed to resolve the authority dilemma in international relations. The crisis in Syria has brought this authority dilemma to the fore once again. In attempting to resolve this, the UK Government is creating a binary choice – work through the United Nations Security Council or bypass the United Nations – however, this creates a false dichotomy that fails to consider other options available. It therefore recommends that the UK Government considers the Uniting for Peace Resolution as a viable option that could be used to resolve the authority dilemma in international relations. The evidence speaks to two questions raise by the Committee, ‘is the concept of R2P being effectively implemented through UN mechanisms?’ and ‘Could the concept of R2P be reformed to make it more effective? If so, how?’

1. The problem of the authority dilemma

1.1                        .               In the post-Cold War era the debate over humanitarian intervention revealed an authority dilemma in international relations. On one hand, there can be mass human rights violations within a state, perhaps even perpetrated by the government, but on the other hand, political deadlock in the United Nations Security Council dictates that the veto can be used to prevent the Council authorising any use of force aimed at stopping the mass violence. This came to the fore during the Kosovo crisis in 1999. Putting the authority dilemma in context, the United Nations Secretary-General Kofi Annan, asked the international community not to think of Kosovo but of Rwanda. ‘Imagine for one moment, in those dark days and hours leading up to the genocide, there had been a coalition of states ready and willing to act in defence of the Tutsi populations, but the council had refused or delayed giving the green light. Should such a coalition then have stood idly by while the horror unfolded?’[1]  The line of questioning implies that the international legal system overseeing the use of force in international relations is morally deficient. As is well documented, the Independent International Commission on Kosovo report concluded that the NATO air strikes were ‘illegal but legitimate’.[2] The Commission’s view was that within this specific case, morality trumped legality. This reinforced Annan’s view that international law was somehow deficient. The obvious question is, if international law is broken, how can it be fixed? 

2. The failure to fix the problem

2.1.                      The International Commission on Intervention and State Sovereignty’s (ICISS) seminal report, The Responsibility to Protect, addressed ‘The Question of Authority’ at some length. In so doing, it made a series of recommendations for planning, carrying out, and following up any military interventions.[3] The Commission found that after ‘global consultations’ the ‘overwhelming consensus’ had been that the Security Council had to remain at the heart of any decision-making process regarding the use of force in international relations.[4] This is despite the fact that the ICISS acknowledged that ‘There are many reasons for being dissatisfied with the role that the Security Council has played so far’.[5] This is fleshed out in the report’s sub-section entitled, ‘legitimacy and the veto’ which states: ‘it is unconscionable that one veto can override the rest of humanity on matters of grave humanitarian concern’.[6] The tone and context of the statement emphasises the magnitude of the authority dilemma as the present legal system permits the permanent five to utilise the right of veto in circumstances that undermine humanity as a whole.

2.2.                      The problem therefore is that 2005 World Summit outcome document reads as though there is nothing wrong in upholding the existing United Nations Security Council approach. But to return to the authority dilemma, what happens if it does not work? Whilst the ICISS report proposed options such as the Uniting For Peace Resolution (to be discussed below), the World Summit outcome document offers no guidance. As Nicholas J. Wheeler rightly pointed out at the time, ‘it is not evident that the UN is any better places to cope with a future Kosovo where the Council is divided on the merits of preventative action’.[7] Essentially, the political deadlock over Syria has brought the authority dilemma to the forefront of international relations once again.

3. The UK Government’s position: a false dichotomy

3.1.                      The UK Government maintains the position that humanitarian intervention can be used in exceptional cases. Within the context of Syria this was first raised on August 29 2013. We see the authority dilemma provides the background context as the UK is faced with the use of chemical weapons on one hand but foresees the potential of a UN Security Council veto on the other. ‘If action in the Security Council is blocked, the UK would still be permitted under international law to take exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime’.[8] The statement goes on to outline three conditions which have to be met in order for humanitarian intervention to be legal. From this perspective, the UK can act without UN Security Council (UNSC) approval and this can be deemed to be legitimate. This rational has been invoked more recently following the use of chemical weapons in Douma. In Professor Weller’s Oral Evidence to the House of Commons Foreign Affairs Committee he upholds this view. He explains that the Security Council is relevant but claims, ‘If it does not work, unilateral humanitarian intervention becomes an option’.[9] At this point it is important to stress that many experts in international law reject this justification. This is captured in Dapo Akande’s analysis of the UK position back in 2013, ‘The UK is of course one of the few States that does accept that international law provides a right of humanitarian intervention. However, this view has been rejected by the vast majority of States’.[10] Whilst this author upholds this latter view, the aim here is not to get caught up in competing legal positions.

3.2.                      The central argument here is that the UK Government is creating a false dichotomy. We see this in the Prime Minister’s justification for the use of force against the Syrian regime in 2018, ‘There is no practicable alternative to the use of force to degrade and deter the use of chemical weapons by the Syrian Regime’.[11] Or, to take another example, ‘We would have preferred an alternative path. But on this occasion there is none’.[12] This is simply inaccurate. It creates a binary choice - work through the United Nations Security Council or choose to act without United Nations approval. It fails to acknowledge other options available, most notably, the Uniting for Peace Resolution.

4. Uniting for Peace Resolution

4.1.                      Writing in 2013, Professor Jason Ralph and I highlighted the potential of the Uniting for Peace in Syria.[13] As the situation in Syria has deteriorated, there has been more and more support for this option. In December 2016, Canada (along with another 69 states) called for the Uniting for Peace Resolution to be enacted.[14] At the same time, a ‘global coalition of 223 civil society organizations’ supported this course of action.[15]   Since then more academics have expressed their view that the Uniting for Peace is a viable alternative that is not as radical as it may first sound.[16]

4.2.                      Established in 1950, the Uniting for Peace Resolution (Resolution 377) stipulates that although the UNSC has ‘primary responsibility’, it does not have ‘exclusive responsibility’ under the UN Charter for peace and security matters.[17] It states that if the UNSC reaches a political deadlock over a certain issue then the issue can be referred (by a majority vote within the Security Council or the General Assembly[18]) to United Nations General Assembly (UNGA) which can then make recommendations.[19] Whilst the ICISS acknowledges that any decision regarding the use of force ultimately lies with the UNSC, from a legitimacy perspective, the Uniting for Peace Resolution would seemingly allow for a tolerable consensus to be forged in the UNGA without explicit UNSC consent. As the ICISS explains, ‘an intervention which took place with the backing of a two-thirds vote in the General Assembly would clearly have powerful moral and political support’.[20] The statement highlights that whilst the UNGA does not have legal authority, if there were enough moral and political support, then this could help overcome this legal deficit from a legitimacy perspective.

4.3.                      This is not to suggest this option is a silver bullet. A Uniting for Peace Resolution will not provide the UK with the legal green light many commentators desire but it would strengthen the legitimacy claims being made by the UK (assuming the vote went its way of course).  This was raised in the initial 2001 report as the Commissioners explained that ‘an intervention which took place with the backing of a two-thirds vote in the General Assembly would clearly have powerful moral and political support’.[21] This statement highlights that whilst the General Assembly does not have legal authority, it can bestow legitimacy.

4.4.                      But what if the vote does not produce the outcome the UK Government wants? When striving to forge the consensus needed it is important to recognise that one cannot enter into such a deliberation with the view that the truth is something that can be ‘worked in’ rather than ‘teased out’.[22] Quite simply, there may be very good reasons why the UK does not get the support needed for the use of force in Syria. First, the RtoP is not the only moral claim in town. Political elites have to weigh up the tension between the RtoP as well as domestic responsibilities such as not sending sons and daughters to die,[23] as well as other international responsibilities, such as maintaining international peace and security.[24] Second, the political fall-out in the aftermath of the military intervention in Libya in 2011 reveals that many states opposed the RtoP being used as an instrument of regime change and also resented the fact that their views were marginalised during the implementation process.[25] Third, there are many very good reasons not to advocate the use of force in Syria precisely because it is so complex. For example, Responsibility to Protect experts have gone to great lengths to explain when any such use of force should be taken and there is very little evidence that an intervention in Syria would have fulfilled such criteria.[26] Notably, one of these criteria is the question of ‘rightful authority’ which is precisely what the UK Government has been wrestling with as it believes that all diplomatic avenues had been exhausted. To take another perspective, Professor Jason Ralph advocates a pragmatic approach that focuses on what the UK can do in terms of refugee protection rather than calling for “Assad to go” when there is very little evidence that such an end goal is realistic.[27]

5. Conclusion

5.1.                      The point here is not to suggest that there are easy answers to what Fernando Tesón refers to as ‘The Vexing Problem of Authority’.[28] Instead, this written evidence seeks to simply highlight that when the UK Government states that there is no alternative to acting without United Nations Security Council approval it fails to consider that there are in fact alternative options available such as the Uniting for Peace Resolution. Whether one is in favour of this option or not, it begins to illustrate that there are alternative ways of thinking and critically, these can involve mechanisms and ideas that already exist within the United Nations framework. We can have alternatives without calling for an alternative world order.

May 2018.