ICISS report - International Coalition for the Responsibility to Protect

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6. THE QUESTION
OF AUTHORITY
6.1 There is an international responsibility to protect populations at risk, and this
Commission has argued that it extends to a responsibility to react by appropriate means if
catastrophe is occurring, or seems imminent. In extreme cases, that responsibility to react
includes military intervention within a state, to carry out that human protection. We have
spelled out in Chapter 4 the tough threshold and precautionary criteria that must be
satisfied in these cases: just cause, right intention, last resort, proportional means and
reasonable prospects. The criteria have to be tough, because the action proposed is itself
extreme: military intervention means not only an intrusion into a sovereign state, but
an intrusion involving the use of deadly force, on a potentially massive scale. But whose
right is it to determine, in any particular case, whether a military intervention for human
protection purposes should go ahead?
SOURCES OF AUTHORITY UNDER THE UN CHARTER
6.2 The bedrock non-intervention principle is spelt out in Article 2.4 of the Charter,
which provides that “All Members shall refrain … from the threat or use of force against the
territorial integrity or political independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations,” and in Article 2.7 which prohibits the United
Nations from intervening “in matters which are essentially within the domestic jurisdiction
of any state.” What lies "essentially within the domestic jurisdiction" is not further defined
and is indeed much contested, especially in the context of human rights issues.
6.3 A crucial qualification to the bedrock principle is Article 24 of the Charter, which “to
ensure prompt and effective action by the United Nations” confers upon the Security Council
the “primary responsibility for the maintenance of international peace and security.” There
are important provisions relating to the pacific settlement of disputes in Chapter VI of the
Charter, but the cutting edge of that responsibility is set out in Chapter VII, which describes
the action the Security Council may take when it “determine[s] the existence of any threat to
the peace, breach of the peace, or act of aggression” (Article 39) . Such action may fall short
of the use of force, and consist of such measures as embargoes, sanctions and the severance
of diplomatic relations (Article 41). However, should the Council consider that such
measures are likely 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” – in other words, it may
resort to or permit the use of military force (Article 42).
6.4 There is one other provision in the Charter expressly permitting the application of
cross-border military force, Article 51, which acknowledges “the inherent right of individual
or collective self-defence if an armed attack occurs against a Member of the UN” (it being
also provided that the measures taken be immediately reported to the Security Council).
This is unlikely to have application to the military intervention situations with which this
report is concerned, other than for regional organizations acting with respect to one of their
member states. This provision, and the Security Council authorization of coercion under the
general provisions of Chapter VII, but nothing else in the Charter, expressly trump the
domestic jurisdiction restriction.