The responsibility to protect: the U.N. World Summit and the question of unilateralism.

• Author: Bannon, Alicia L.

More than a decade after the world did nothing to halt genocide in Rwanda, and in the shadow of ongoing atrocities in Darfur, Sudan, the international community recently made a new commitment to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. The United Nations 2005 World Summit brought together representatives from more than 170 countries, including the United States. While largely reiterating previous international development and security goals, the Summit culminated with an agreement that the international community, acting through the United Nations, bears a responsibility to help protect populations from genocide and other atrocities when their own governments fail to do so. The agreement further announced a willingness to take "collective action" through the Security Council to protect populations if peaceful means prove inadequate. (1)

The motivating force behind the agreement is the United Nations' past inaction in the face of grave atrocities, including genocide. At the conclusion of the World Summit, Secretary General Kofi Annan told the world's leaders: "[Y]ou will be pledged to act if another Rwanda looms." (2) However, by describing the responsibility to protect in terms of U.N. action, the World Summit failed to address a critical issue: What can and should be done by individual states if the United Nations fails to fulfill its pledge? The answer to this question will inform the scope of permissible unilateral action, with implications for future humanitarian interventions and military actions.

This Comment argues that the Summit agreement strengthens the legal justification for limited forms of unilateral and regional action--including military action--if the United Nations fails to act to protect populations from genocide and other atrocities. The Summit agreement strengthens the justification for unilateral action in two main ways. First, the agreement affirms important limits on national sovereignty by recognizing a state's responsibility to protect its own citizens. Second, the agreement sets clear responsibilities for the international community when a country fails to protect its own citizens. In cases of U.N. inaction, would-be unilateral actors can point to an explicit failure to fulfill a duty.

However, the agreement only supports unilateral action in a narrow set of circumstances. First, the agreement is limited to a small set of extreme human rights abuses. Second, the agreement implies a hierarchy of actors and of interventions: Good faith U.N. action is privileged over unilateralism and peaceful action is privileged over violent means. Finally, the agreement limits the scope of intervention to the goal of protection. For these reasons, the U.S. invasion of Iraq could not have been justified using the Summit agreement.

1. THE SUMMIT AGREEMENT FRAMEWORK

   The Summit agreement is an important contribution to international law. It builds on recent trends in international law and practice (3) and codifies them in an agreement that nearly every country in the world participated in forming. As such, it strengthens the development of a new international norm regarding humanitarian protection.

   The agreement recognizes that while the responsibility to protect begins with national governments, it does not end at nations' borders. Thus, while "[e]ach individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity," (4) when a state fails to do so, "[t]he international community, through the United Nations, also has the responsibility." (5) Moreover, the agreement calls for coercive action through the Security Council, including economic sanctions or even military action, as a last resort to protect populations:

    [W]e are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. (6) 

   While the decision to intervene will be made on a case-by-case basis, the agreement emphasizes the need for "timely and decisive" action when peaceful persuasion is inadequate. In particular, the agreement broadens the concept of "international peace and security" (7) that underlies Chapter VII of the U.N. Charter, which permits coercive action by the Security Council. (8) Most previous Chapter VII actions, particularly humanitarian interventions, either nominally involved the consent of the nation in question or were justified in the name of regional security. (9) In contrast, the Summit agreement suggests that Chapter VII action is also appropriate for purely internal matters when peaceful means are inadequate and...