China's 'responsible protection' concept: Reinterpreting the Responsibility to Protect (R2P) and military intervention for humanitarian purposes

This article assesses the extent to which the recently formulated Chinese concept of “Responsible Protection” (RP) offers a valuable contribution to the normative debate over R2P’s third pillar following the controversy over military intervention in Libya. While RP draws heavily on previous proposals such as the original 2001 ICISS report and Brazil’s “Responsibility while Protecting” (RwP), by amalgamating and re-packaging these earlier ideas in a more restrictive form the initiative represents a new and distinctive interpretation of R2P. However, some aspects of RP are framed too narrowly to provide workable guidelines for determining the permissibility of military intervention for civilian protection purposes, and should therefore be clarified and refined. Nevertheless, the Chinese proposal remains significant because it offers important insights into Beijing’s current stance on R2P. More broadly, China’s RP and Brazil’s RwP initiatives illustrate the growing willingness of rising, non-Western powers to assert their own normative preferences on sovereignty, intervention and global governance

Evolving norms of protection: China, Libya and the problem of intervention in armed conflict

This article examines the influence of civilian protection norms on China’s response to the 2011 crisis in Libya. It argues that Responsibility to Protect—an emerging norm commonly associated with the Libyan case—did not play a major role in China’s abstention on Resolution 1973 (2011) authorizing international intervention in Libya. For China, Responsibility to Protect is merely a concept and could not serve as the basis for intervention. Instead, Protection of Civilians in Armed Conflict, as a normative foundation for civilian protection endorsed by China, offers a more appropriate lens for understanding China’s vote. Protection of Civilians, however, does not accommodate China’s unprecedented evacuation of Chinese nationals from Libya. This operation proceeded from a third logic of Protection of Nationals Abroad, which poses dilemmas for China’s strict adherence to the principles of sovereignty and non-interference and brings to bear domestic interests and notions of protection

Self-defence against terrorism in the post 9/11 world

In 1986 the then United States Secretary of State George Shultz asserted that: It is absurd to argue that international law prohibits us from capturing terrorists in international waters or airspace; from attacking them on the soil of other nations, even for the purpose of rescuing hostages; or from using force against states that support, train and harbor terrorists or guerrillas. At that time the United States’ claim of a right to use military force in self-defence against terrorism2 received little support from other states.3 The predominant view then was that terrorist attacks committed by private or non-state actors were a form of criminal activity to be combated through domestic and international criminal justice mechanisms. The notion that such terrorist acts should be treated as ‘armed attacks’ triggering a victim state’s right of self-defence was not accepted by the majority of states. To suggest, as Shultz had done, that a state not directly responsible for terrorist acts could have its territorial integrity violated by military action targeting terrorists located within that state, was a controversial proposition in 1986. However, some fifteen years later, when the United States and a coalition of allies launched a military campaign in Afghanistan following the 11 September 2001 (hereafter ‘9/11’) terrorist attacks, there was virtually unanimous international support for the use of force

The BRICS and the 'responsibility to protect': Lessons from the Libyan and Syrian Crises

The emerging ‘responsibility to protect’ (R2P) principle presents a significant challenge to the BRICS (Brazil, Russia, India, China and South Africa) states’ traditional emphasis on a strict Westphalian understanding of state sovereignty and non-interference in domestic affairs. Despite formally endorsing R2P at the 2005 World Summit, each of the BRICS has, to varying degrees, retained misgivings about coercive measures under the doctrine’s third pillar. This paper examines how these rising powers engaged with R2P during the 2011–2012 Libyan and Syrian civilian protection crises. The central finding is that although all five states expressed similar concerns over NATO’s military campaign in Libya, they have been unable to maintain a common BRICS position on R2P in Syria. Instead, the BRICS have splintered into two sub-groups. The first, consisting of Russia and China, remains steadfastly opposed to any coercive measures against Syria. The second, comprising the democratic IBSA states (India, Brazil and South Africa) has displayed softer, more flexible stances towards proposed civilian protection measures in Syria, although these three states also remain cautious about the implementation of R2P’s coercive dimension. This paper identifies a number of factors which help to explain this split, arguing that the failure to maintain a cohesive BRICS position on R2P is unsurprising given the many internal differences and diverging national interests between the BRICS members. Overall, the BRICS’ ongoing resistance to intervention is unlikely to disappear quickly, indicating that further attempts to operationalize R2P’s third pillar may prove difficult

Book review : Olivier Corten, The Law Against War

Olivier Corten’s The Law Against War is a comprehensive, meticulously-researched study of contemporary international law governing the use of armed force in international relations. As a translated and updated version of a 2008 book published in French, it offers valuable insights into the positivist methodology that underpins much of the European scholarship of international law. Corten undertakes a rigorous analysis of state practice from 1945 onwards, with a view to clarifying the current meaning and scope of international law’s prohibition on the use of force. His central argument is that the majority of states remain attached to a strict interpretation of this rule. For Corten, state practice indicates that the doctrines of anticipatory self-defence, pre-emptive force and humanitarian intervention have no basis in contemporary international law. His overall position accords with a traditional, restrictive view of the circumstances in which states are permitted to use force..

Libya and the international communitiy's 'responsiblity to protect'

The Libyan regime’s attacks on its own civilian population are a test case for the international community’s commitment to the notion of a “responsibility to protect” (R2P). The UN Security Council’s statement on 22 February 2011 explicitly invoked this concept by calling on “the Government of Libya to meet its responsibility to protect its population”. Yet, with Muammar Gaddafi encouraging further violence against protesters and threatening to fight “until the last drop of blood” it seems unlikely that the Security Council’s warning will be heeded. Greater pressure from the international community will be needed to bring an end to the atrocities in Libya. The international response to the Libyan crisis represents an opportunity to translate the theory of R2P into practice

R2P ten years after the World Summit: Explaining ongoing contestation over Pillar III

This article examines how and why contrasting interpretations of the international community’s role in preventing and responding to mass atrocity crimes continue to exist a decade after the Responsibility to Protect (R2P) was unanimously endorsed at the 2005 World Summit. Building on recent critical constructivist insights into the fluid, dynamic nature of norms, it advances two main arguments. The first is that continuing contestation over R2P’s third pillar is a product of a combination of internal and external sources of norm dynamism. R2P’s inherently complex normative structure, coupled with several external factors, including the broader normative environment, norm implementation experiences and a shift in global power towards the BRICS, have contributed to a period of renewed contestation and triggered attempts to re-formulate R2P thorough Brazil’s ‘Responsibility while Protecting’ (RwP) proposal and China’s semi-official ‘Responsible Protection’ concept. The second central argument is that such contestation is affecting R2P’s distinct normative prescriptions in different ways. While resistance to the implementation of coercive pillar III measures is currently impeding the normative progress of that component of the norm, this contestation has not prevented consensual pillar II assistance from becoming more deeply embedded in international practice and discourse

Criminal intent

The High Court recently heard submissions of counsel in Zaburoni v The Queen. This case concerns an appeal against conviction for transmitting a serious disease with intent under section 317(b) and (e) of the Queensland Criminal Code. It raises important issues about the meaning of intent and how intent can be proven in Queensland criminal offences. Since intent is an element of so many of the more serious crimes, it is surprising to see that the courts, both in England and Australia, continue to grapple with how best to define it. In murder, for example, the accused is potentially going to be locked up for a very long time, so it is essential that the courts and juries are very clear on what intent actually means, so that they can be confident in correctly finding that it was present on the facts of the case

Manslaughter Under the Griffith Code: Rowing not so Gently Down Two Streams of Law

This article considers the two streams of law that can lead to a conviction for manslaughter under the Criminal Code 1899 (Qld). The first stream deals with acts or conduct that cause another's death in circumstances where that death is not an accident, while the second covers those deaths caused by criminal negligence. The article considers how the two streams of law interrelate and, in particular, the extent to which both are available in the same case. Some of the inconsistencies identified by judges in relation to these streams of law are considered and possible solutions are canvassed