CRANFIELD UNIVERSITY DAREN BOWYER JUST WAR DOCTRINE

The inability of a strictly legal paradigm for use of force to cope with such ambiguity is
neatly encapsulated in the celebrated conclusion of the Independent International
Commission on Kosovo that NATO’s action there had been ‘illegal but legitimate.’ 60
In an attempt to answer the challenges posed by the apparent dilemma raised in Annan’s
address, the Government of Canada established the International Commission on
Intervention and State Sovereignty (ICISS), announcing this to the General Assembly in
September 2000. The principal conclusion in the Commission’s report 61 was that
inherent in state sovereignty is a responsibility to protect its own population and that
when it fails in that responsibility either through deliberate act, negligence or
incompetence, then there is a responsibility vested in the wider ‘international
community’ to take action. This is summarized as two basic principles as shown in the
following extract from the Commission report’s synopsis:
A. State sovereignty implies responsibility, and the primary responsibility for
the protection of its people lies with the state itself.
B. Where a population is suffering serious harm, as a result of internal war,
insurgency, repression or state failure, and the state in question is unwilling or
unable to halt or avert it, the principle of non-intervention yields to the
international responsibility to protect. 62
The Commission’s proposals for executing the ‘responsibility to protect’ without that
becoming an excuse for unbridled intervention is discussed further below. However,
first it is necessary to consider, in slightly sharper focus, the failings of the existing
mechanisms – principally UN peacekeeping.
3.3.3 The Failure of Existing Mechanisms
That mechanisms exist for use of force within the aegis of the UN Charter paradigm is
not in question, but their effectiveness is. As Gareth Evans, one of the authors of the
ICISS report, The Duty to Protect, argues:
No universally accepted practice currently governs the use of military force:
states are going to war when they should not be, and not taking military action
when they should. Available international law tools are not the problem: Chapter
VII and Article 51 of the UN Charter, properly applied, between them enable the
full range of necessary responses – both reactive and preventive – to all likely
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