Appendix
Written evidence from the Rt Hon Hugh Robertson
MP, Minister of State, Foreign and Commonwealth Office to the
Foreign Affairs Committee on humanitarian intervention and the
responsibility to protect (USA 19)
Further to my letter of 6 January, I am pleased to
enclose at Annex A responses to the questions posed in the [Foreign
Affairs] Committee Specialist's follow-up letter of 9 December
regarding the UK Government's position on humanitarian intervention
and the responsibility to protect.
I hope the Committee finds this information
useful.
Annex
A
Question 2: In the Committee's
understanding, the Government considers that, under the doctrine
of humanitarian intervention, it would be lawful for the UK to
use force against another state without a UN Security Council
resolution authorising the use of such force, if the Security
Council cannot agree to authorise the use of force, and if other
conditions are met (convincing and generally accepted evidence
of extreme humanitarian distress, no practicable alternative,
proportionate and limited force). The Committee's understanding
is based on the legal advice that the Government published on
29 August 2013 in connection with possible UK military action
against Syria.
The Committee notes that the legal
position set out by the current Government at the end of August
2013 is the same as that advanced by the then Government in 1998-1999
with respect to the NATO military action against the then Yugoslavia
(in the FCO note circulated to NATO Allies in October 1998 and
the Defence Secretary's statement to the House on 25 March 1999).
However, the Independent International Commission on Kosovo concluded
in 2000 that the NATO military action was "illegal but legitimate".
The Committee further notes that
the 2005 World Summit Outcome Document (endorsed by the UN
General Assembly in Resolution 60/1 of 24 October 2005) accepted
the doctrine of 'responsibility to protect' with reference to
genocide, war crimes, ethnic cleansing and crimes against humanity.
With respect to the role of the UN and the Security Council, the
Outcome Document said that in such cases Member States were "prepared
to take collective action [...] through the Security Council,
in accordance with the Charter, including Chapter VII "
The Government therefore appears
now to regard as lawful military action (for example, that proposed
in Syria) of a type which the International Commission on Kosovo
concluded was unlawful.
i. In this context, the
Committee would like to know if it has understood the Government's
position correctly.
As set out in the note of the Government's
legal position published on 29 August 2013 in connection with
possible UK military action against Syria, if action in the Security
Council is blocked, the position of the Government is that it
is permitted under international law to take exceptional measures
in order to avert a humanitarian catastrophe. Such a legal basis
is available provided three conditions are met:
i. there is convincing evidence,
generally accepted by the international community as a whole,
of extreme humanitarian distress on a large scale, requiring immediate
and urgent relief;
ii. it must be objectively clear that there is
no practicable alternative to the use of force if lives are to
be saved; and
iii. the proposed use of force must be necessary
and proportionate to the aim of relief of humanitarian need and
must be strictly limited in time and scope to this aim (i.e. the
minimum necessary to achieve that end and for no other purpose).
In October 1998 a Government note was circulated
to NATO allies identifying these three key criteria.
Baroness Symons also set out the Government's
position to Parliament in November 1998:
"There is no general doctrine
of humanitarian necessity in international law. Cases have nevertheless
arisen (as in northern Iraq in 1991) when, in the light of all
the circumstances, a limited use of force was justifiable in support
of purposes laid down by the Security Council but without the
council's express authorisation when that was the only means to
avert an immediate and overwhelming humanitarian catastrophe.
Such cases would in the nature of things be exceptional and would
depend on an objective assessment of the factual circumstances
at the time and on the terms of relevant decisions of the Security
Council bearing on the situation in question."
The United Kingdom has relied on this
doctrine on three occasions:
i. In protecting the Kurds in Northern Iraq in
1991;
ii. In maintaining the No Fly Zones in Northern
and Southern Iraq from 1991; and
iii. In using force against the Federal Republic
of Yugoslavia in relation to Kosovo in 1999.
In relation to the last of these, the
statement of the UK's Permanent Representative to the United Nations
to the Security Council on 24 March 1999 read as follows:
"The action being taken is legal.
It is justified as an exceptional measure to prevent an overwhelming
humanitarian catastrophe. Under present circumstances in Kosovo
there is convincing evidence that such a catastrophe is imminent.
Renewed acts of repression by the authorities of the Federal Republic
of Yugoslavia would cause further loss of civilian life and would
lead to displacement of the civilian population on a large scale
and in hostile conditions.
Every means short of force has been
tried to avert this situation. In these circumstances, and
as an exceptional measure on grounds of overwhelming humanitarian
necessity, military intervention is legally justifiable. The force
now proposed is directed exclusively to
averting a humanitarian catastrophe, and is the minimum judged
necessary for that purpose."
The Government's position has not
changed in light of the report of the Independent International
Commission on Kosovo. It did not agree with the Commission's view
that NATO's action in Kosovo in 1999 was illegal. The Government
does not consider the Commission, while made up of experts, to
be authoritative. Its views are not binding in any way, but represent
the views of its independent members.
ii. what development(s) since 2000 provide(s)
the basis for the Government's position—and specifically,
whether the relevant development is the 2005 World Summit Outcome
Document and/or something else.
Nothing has changed with regard to
the basis for the Government's position, which predates 2000.
The "Responsibility to Protect",
as set out in paragraphs 138 to 139 of the 2005 World Summit Outcome
document, makes it clear that the primary responsibility is on
States to protect their own populations from war crimes, crimes
against humanity, genocide and ethnic cleansing. However, it recognises
the willingness of the international community to act speedily
and appropriately in specific cases and take collective action
where States are either unable or manifestly fail to do so. Responsibility
to Protect in the World Summit Outcome document contains three
pillars: (i) conflict prevention; (ii) capacity building; and
(iii) military and nonmilitary intervention. The focus of the
Government has been on the first two of these pillars.
The 2005 World Summit Outcome document
is in the form of a non-binding United Nations General Assembly
resolution, albeit one that was agreed by consensus and adopted
at a high-level political event. It simply indicates a responsibility
based on existing legal norms, while going on to express a political
readiness to take collective action. The Summit's adoption of
the "Responsibility to Protect" was politically significant,
and one that the Government welcomed and has continued to promote.
But the "Responsibility to Protect" as set out in the
Outcome Document does not in itself create new legal rights and
duties or modify existing ones. And it does not address the
question of unilateral State action in the face of an overwhelming
humanitarian catastrophe to which the Security Council has not
responded. Rather, the "Responsibility to Protect" is
aimed at making sure that the Security Council does take action.
iii. whether it is relevant that the 2005
World Summit Outcome Document was couched in terms of responsibility
to protect, whereas the thenGovernment's position regarding
the 1999 Kosovo intervention and the current Government's published
legal advice on Syria in 2013 referred to the doctrine of humanitarian
intervention.
As set out above in the answers to
questions (i) and (ii), the legal basis of humanitarian intervention
and the concept of the responsibility to protect are not the same
thing and this is reflected in the fact that different terminology
is used.
iv. whether, in the FCO's understanding,
the US's position is the same as that of the UK on the lawfulness
of the use of force without an authorising Security Council resolution
under the doctrine(s) of R2P/humanitarian intervention.
The US interpretation of the lawfulness
of the use of force without a UNSCR is a question for the US Government
and, in any case, will always be case-specific. We believe the
US to be as committed to the protection of civilians as the UK.
The Administration's 2010 National Security Strategy makes clear
that the US supports the concept of R2P and that in cases when
prevention fails, "the United States will work both multilaterally
and bilaterally to mobilize diplomatic, humanitarian, financial,
and—in certain instances—military means to prevent
and respond to genocide and mass atrocities".
v. the FCO's assessment of the
implications for the UN if Member States use force under the
doctrine(s) of R2P/humanitarian intervention without an authorising
Security Council resolution.
The position of the Government is
that intervention may be permitted under international law in
exceptional circumstances where the UN Security Council is unwilling
or unable to act in order to avert a humanitarian catastrophe
subject to the three conditions set out above. The Government
does not consider that this has adverse implications for the UN.
It also is important to recognise that the responsibility to protect
emerged after NATO's humanitarian intervention in Kosovo. The
responsibility to protect was in many ways a response to what
its framers saw as the failures of the Security Council over its
reaction to the genocide in Rwanda in 1994 (where it acted too
late), and to the humanitarian crisis in Kosovo in 1999 (where
it did not authorise an intervention). The adoption of the responsibility
to protect was therefore an attempt to move debate away from a
focus solely on external military intervention by emphasising
the responsibility of States towards their own populations, but
also to signal the UN membership's support for the idea that,
if necessary, the Security Council can and should act in the face
of genocide, ethnic cleansing, war crimes and crimes against humanity;
the expectation being that this political commitment would make
Security Council action more likely and less controversial in
future.
14 January 2014
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