Since military intervention is one of the most sensitive issues of R2P, the ICISS Report provides that the Security Council constitutes the sole arbiter of military intervention. In this regard, the report explicitly emphasizes that Security Council authorization should be sought prior to military intervention.275 In relation to the legitimacy and
legality of these criteria under international law framework, Evans comments that the intention of the ICISS was to maximize the possibility of achieving council consensus concerning when it is or is not appropriate to go to war; maximize international support for whatever it decides; and minimize the possibility of individual member states bypassing or ignoring it.276
Therefore, any intervention should be permitted by the UN Security Council and the legitimacy of such action depends on a prior authorization of the United Nations, in particular its Security Council. Concerning this procedure, the commission states:
Security Council authorization must in all cases be sought prior to any military intervention action being carried out.Those calling for an intervention must formally request such authorization, or have the Council raise the matter on its own initiative, or have the Secretary-General raise it under Article 99 of the UN Charter…The Security Council should deal promptly with any request for authority to intervene where allegations of large scale loss of human life or ethnic cleansing are; it should in this
274 Gareth Evans, Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All, p. 65. 275 ICISS Report at para. 6.15.
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context seek adequate verification of facts or conditions on the ground that might support a military intervention.277
It is clear from this that where there is evidence of large-scale loss of life or ethnic cleansing, the Security Council has an obligation to deal promptly with the matter. The report proceeds with giving reasons why the UN Security Council is the central body which can provide international legitimacy to a military intervention. The Report states:
Article 42 authorizes the Security Council, in the event that non-military measures prove ‘to decide upon military measures’ as may be necessary ‘to maintain or restore international peace and security’. Although these powers were interpreted narrowly during the Cold War, since then the Security Council has almost invariably been universally accepted as conferring international legality on an action.278
However, the commission recognizes that it would not be easy to get the Security Council to vote to authorize military intervention, taking into account these five criteria of legitimacy. There is no doubt that the United Nations Security Council had shown in the past the lack of authority to enforce its legal capacity to deal with international peace and security independently of the dictate of the major powers.279 This
dissonance has led to an ambiguous situation which left room for some states to act outside the UN Framework as Chandler outlines:
A series of ambiguous resolutions and conflicting interpretations have arisen over the extent and duration of the authority conferred by the Security Council. These were most notable in the operations against Iraq
277 ICISS Report, ‘The Responsibility to Protect’, p. 50. 278 Ibid.
279 The 2003 invasion of Iraq by the US and its allies outside the UN framework can be cited as an example of the UN’s lack of authority. In addition, the Darfur crisis in which the major powers had a big influence in deciding whether the United Nations should militarily intervene or not.
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throughout the 1990s and in the Kosovo war in 1999. The weakening of the formal requirements may have undermined the substantive provisions of the Charter’s collective security system and contributed to facilitating actions in advance of Council authorization, or indeed without it.280
As previously mentioned, NATO intervention in Kosovo, for example, was a signal that in case of extreme situations and when a rapid intervention is needed, a moral responsibility to stop humanitarian crises could in some circumstances take advantage over the ‘right authority’ principle. Unfortunately, this challenge was not taken into account by the commission. Indeed, despite the fact that the Security Council has often failed to stop human catastrophe because of the sacrosanct veto power of the five permanent members (P5), the commission confirmed that the Security Council remains the only authority to authorize military intervention. It should be noted, however, that the commission had expressely underligned the fact that the work of the Security Council is permanently threatened by the veto power which can paralyse its actions, especially when a quick and decisive action is needed to stop mass violation of human rights. According to the report, ‘it is unconscionable that one veto can override the rest of humanity on matters of grave humanitarian concern’.281 It is
clear that the use of veto-power by the P5 members over R2P can be a particular problem in the face of large-scale loss of life. On this point, Thakur comments:
The legitimacy of the Security Council as the authoritative validator of international security action suffers from a quadruple legitimacy deficit: performance, representational, procedural and accountability. Its performance legitimacy suffers from two strikes: an uneven and a selective
280 David Chandler, ‘The Responsibility to protect: Imposing the liberal peace?’, International Peacekeeping, vol.11, no.1, Special issue: Peacekeeping Operation and Global Order, 2004, pp. 59-81.
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record. It is unrepresentative from almost any point of view. Its procedural legitimacy is suspect on grounds of a lack of democratization and transparency in decision-making. And it is not answerable to the General Assembly, the World Court, the nations or the peoples of the world.282
In this regard, the commission proposes an alternative option when the Security Council fails to deal with the issue of intervention in a reasonable time; this includes having recourse to the General Assembly which in Emergency Special Session can authorize the intervention pursuant to the Uniting for Peace procedure under which a two-third majority of the General Assembly can authorize a military intervention.283
Bearing in mind the past failures of the United Nations Security Council to intervene due to the veto-power of its permanent members, the commission suggests that if there is majority support for a military intervention, the permanent members of the Security Council, when their national interests are not claimed to be involved, should abstain from using their veto-power to block resolutions authorizing military intervention to stop or to avert mass violation of human rights.284 It seems that this
recommendation was not appreciated by the permanent members who were not willing to renounce to their veto-power. However, the commission has failed to respond to the dilemma when human beings are slaughtered while the Security Council is paralyzed and unwilling to intervene. Some scholars285 have made criticisms about
the omission of the possibility of unilateral military intervention by states in case of genocide, ethnic cleansing, war crimes and crimes against humanity. As one commentator points out:
282 See Thakur, ‘Law, Legitimacy and the United Nations’, pp. 17-21. 283 ICISS Report at xiii, pp. 53-54.
284 ICISS Report, p. 51.
285 See Rafaello Matarazzo and Emmanuelle Rebast, Report of the International Conference; ‘The EU, the US and the Reform of the United Nations: Challenges and Perspectives’, EUI Working Paper Law no. 12, 2006.
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The United Nations system is a paradoxical system which recognizes the protection and fulfillment of human rights as fundamental values, but whose institutional machinery allows that such fundamental values may be frustrated by the prohibition of force and respect for sovereignty, without providing any other alternative.286