Tuesday, March 22, 2011

The Responsibility to Protect


At the conclusion of the UN Summit in September 2005, the Heads of State agreed to the following text concerning the responsibility to protect:

"The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VII and VIII of the Charter, to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context we 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 manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity."

UN Security Council resolution 1973, which authorized the imposition of a no-fly zone over Libya, and also the use of all necessary means to protect the civilian population, was passed unanimously (albeit with five abstentions) under the authority of Chapter VII of the UN Charter.

Chapter VII, Article 42 of the UN Charter says: "Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations."

The UN Charter is a treaty and all members are bound by its provisions. The United States was founding member of the United Nations and the US Senate has ratified the UN Charter.

The US Constitution, Article Six says that: "treaties of the United States made according to it, [are] the supreme law of the land." This statement is found in the Supremacy Clause which created the Union by making the Constitution, Federal Statutes and Treaties, supreme over state laws. In other words, there is nothing more fundamental than this clause to the United States Constitution.

UN SC Res. 1973, which you can read here, authorizes Member States to take" all necessary measures to enforce compliance with the ban on flights".

So the involvement of the United States in this UN action undertaken for the purpose of human rights protection, is LEGAL under international law. The Korean War under President Harry Truman was also authorized in this way, as was the first Gulf War under President George H. W. Bush. The 2003 US invasion of Iraq under George W. Bush, was ILLEGAL under the terms of the UN Charter. It was also, therefore, ILLEGAL under the US Constitution, since the UN Charter binds all member states, and the US is a member state which has ratified the Charter, making it the "supreme law" of the land.

The War Powers Resolution of 1973 allows US presidents to commit US military forces to action without a formal declaration of war, but requires that he notify the Congress within 48 hours of committing US forces to action and requires that those forces shall not remain in action for more than 60 days without a congressional authorization of the use of force or a declaration of war. Incidentally, this resolution was vetoed by President Nixon, but his veto was overridden.

President Obama officially informed Congress that he had taken the actions that began on Friday March 19th, on Monday March 22nd. (see this ABC news report). So he was a little late, but he did comply with the requirements of the War Powers Act.

So the answer is, "yes" what President Obama did was legal under both international and US law. It was also the morally right thing to do. It will also, I believe, prove to be very much in the US's national interest to get on the right side of history in the making. It also, as a matter of fact, probably saved thousands of lives. Finally, it denied Gadhafi the opportunity to send the message to other tyrants that they can prevail through ruthless repression of popular dissent and protest.

So, for those of you who are concerned about this UN action, what is your problem? Would you rather have waited longer for him to act? Had he done so, on Monday we would be cleaning up after the bloodbath that Colonel Gadhafi had vowed he would create in Benghazi. Remember, he said last week, "There will be no mercy". This sounds to me like a statement of intent to commit war crimes or crimes against humanity. If he ever faces the ICC Tribunal, this statement can be used as evidence. Would you rather have prevented this humanitarian catastrophe or did what Clinton did in Rwanda and Bosnia, and sit idly by while tens of thousands were murdered?