PERMISSION TO INTERCEDE OR SOVEREIGNTY SUPREME?: THE INFLUENCE OF R2P ON NON-FORCEFUL RESPONSES TO ATROCITY CRIMES STACEY LEE HENDERSON Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy Adelaide Law School January 2018 ii TABLE OF CONTENTS Table of Contents ii Abstract v Statement vii Acknowledgements viii I Introduction 1-18 Introduction 1 Rationale for research 2 Methodology 9 Structure: an overview of the study 12 Sovereignty and non-intervention 12 Reconcepualisation of sovereignty and the Responsibility to Protect 13 Intercession 14 Sanctions 15 Assistance to opposition groups 16 Arms Trade Treaty 17 Conclusion 17 II Sovereignty and the Principle of Non-Intervention 19-45 Introduction 19 Sovereignty 20 Historical (pre-Westphalian) conceptualisation of sovereignty 24 Westphalian conceptualisation of sovereignty 26 Prising open the iron curtain of Westphalian sovereignty 27 Conclusion: the traditional conceptualisation of sovereignty 31 The Principle of Non-Intervention 32 Non-intervention in the UN Charter 34 Non-intervention in treaties and United Nations’ instruments 34 The high-watermark of the principle of non-intervention 39 A change to the boundaries of non-intervention? 41 Conclusion: the principle of non-intervention 43 Conclusion 44 III Sovereignty Reconceptualised and the Responsibility to Protect 46-83 Introduction 46 The reconceptualisation of sovereignty as responsibility 47 The original formulation of R2P 49 Rallying call 49 The suggested answer 50 Changing the focus 51 The primary duty 52 The secondary duty 53 Criticism of the original formulation of R2P 57 The journey to adoption of R2P at the 2005 UN World Summit 58 The lead up to the 2005 UN World Summit 58 The 2005 UN World Summit 59 Significance of the 2005 World Summit Outcome document 60 Criticism of the 2005 World Summit Outcome document 63 The legal significance of R2P 65 iii The secondary duty on the international community 69 After the 2005 World Summit 71 Three pillars 72 The importance of measures less than force 75 Restraint 76 Impact of R2P on sovereignty and the principle of non-intervention 78 Sovereignty reconceptualised 78 A change to the boundaries of non-intervention? 80 Conclusion 81 IV Intercession 84-102 Introduction 84 International norms can influence State behaviour 86 Interest-based approach 87 Norm-based approach 88 Integrated approach 91 Theoretical approaches: Summary 91 What are States doing? 92 Post-Election Violence in Kenya 93 Sanctions 95 Assistance to Opposition Groups 96 Arms Trade Treaty 97 Lessons from Current Practice 99 Intercession 99 Conclusion 101 V Sanctions 103-151 Introduction 103 What are sanctions? 104 Legal justifications for the imposition of sanctions 107 United Nations Security Council 107 Regional organisations 108 Individual States 110 Recent contemporary examples 112 Democratic Republic of the Congo 112 United Nations sanctions 113 Sanctions imposed by regional organisations and States 114 Côte d’Ivoire 118 United Nations sanctions 118 Sanctions imposed by regional organisations and States 120 Sudan 122 United Nations sanctions 122 Sanctions imposed by regional organisations and States 123 Libya 126 United Nations sanctions 126 Sanctions imposed by regional organisations and States 128 Syria 129 United Nations sanctions 130 Sanctions imposed by regional organisations and States 131 Central African Republic 137 United Nations sanctions 137 iv Sanctions imposed by regional organisations and States 138 The Significance of this Sanctions Practice 140 Evolution of the Principle of Non-Intervention 142 Conclusion 148 VI Assistance to Opposition Groups 152-188 Introduction 152 The traditional approach: non-intervention and assistance 154 Evidence of an emerging and different state practice 159 Libya 159 Training 164 Arming opposition groups 166 Provision of non-lethal military equipment 169 Libya – summary of assistance provided to opposition groups 171 Syria 173 EU Member States 176 Other States 180 Syria – summary of assistance provided to opposition groups 182 Conclusion 184 VII Arms Trade Treaty 189-214 Introduction 189 The impetus for an Arms Trade Treaty 191 Campaigning towards an Arms Trade Treaty 192 Progress towards an Arms Trade Treaty at the United Nations 193 The Influence of R2P on the Arms Trade Treaty 198 Preamble, Principles and Purpose 198 Scope 201 The prohibitions and risk assessments 204 Prohibitions 204 Risk Assessments 208 Conclusion 213 VIII Conclusion 215-230 Introduction 215 Traditional conceptualisations of sovereignty and non-intervention 216 Sovereignty 216 The principle of non-intervention 217 R2P 217 Intercession 219 Case study: sanctions 221 Case study: assistance to opposition groups 222 Libya 223 Syria 223 Case study: Arms Trade Treaty 225 Reconceptualisations of sovereignty and non-intervention 226 Conclusion 228 Bibliography 231-280 v ABSTRACT Is it acceptable in the 21st century to require the international community to do nothing when atrocity crimes are being committed? The international law principles of sovereignty and non-intervention, when taken at their highest, require States to stand idle and not intervene in another State regardless of what atrocities may be occurring there. This traditional legal view is being challenged by an emerging practice of States choosing to act, inspired by the concept of the responsibility to protect (‘R2P’). Drawing on R2P, this thesis introduces and develops an original conceptual tool – intercession – to capture and explain the significant change in State practice in recent years as to the increasing utilisation of measures less than force taken by the international community in response to the commission or anticipation of atrocity crimes occurring in other States. While a great deal of existing scholarship has focussed on the coercive aspects of R2P, equating R2P with the use of military force, this thesis builds upon a smaller body of scholarship which focuses on the non-forcible aspects of R2P. This thesis argues that its conceptual framework of intercession can explain this new State practice, which has led to an expansion in both the permissible measures and situations in which States can intervene, without using force, in response to atrocity crimes occurring in other States, and a simultaneous restraint on the formulation and imposition of those measures. In doing so, this thesis undertakes novel and important research. This thesis includes three case studies, which have been chosen to demonstrate intercession at work in different ways across diverse areas of international law. Through a detailed examination of recent State practice, each of the case studies demonstrates the accordion effect of intercession – an increase in permissible State responses to atrocity crimes vi occurring in other States, coupled with restraint exercised by States in the formulation and implementation of those responses. The first case study – sanctions – demonstrates that R2P now permits States to impose regional or unilateral sanctions (measures of intercession) in response to atrocity crimes that would previously have been impermissible, indicating an emerging change to the boundaries of the customary international law principle of non-intervention. This case study also demonstrates restraint on the part of regional organisations and States in formulating and imposing sanctions in such a way that they minimise impacts on the general population. The second case study – assistance to opposition groups – reveals an evolution in the customary norm of non-intervention, in that States can now intervene in conflicts earlier, and lawfully take more measures, to respond to atrocity crimes by assisting opposition groups. This case study also demonstrates self-restraint in the provision of expanded forms of assistance to opposition groups. The third case study – the Arms Trade Treaty – shows the influence of intercession under R2P on the development of treaty norms and the implementation of treaties. Intercession under R2P provides a conceptual solution to the dilemma of whether it is acceptable for the international community to do nothing by articulating when and how States may respond to atrocity crimes in other States. The close examination of State practice undertaken in this thesis reveals that R2P has served as the inspiration for a re-aligned conceptualisation of the limits of State responses to atrocity crimes, charting a way forward for the international community which is at once sensitive to State sovereignty but also responsive to humanitarian imperatives. vii STATEMENT I certify that this work contains no material which has been accepted for the award of any other degree or diploma in my name in any university or other tertiary institution and, to the best of my knowledge and belief, contains no material previously published or written by another person, except where due reference has been made in the text. In addition, I certify that no part of this work will, in the future, be used in a submission in my name for any other degree or diploma in any university or other tertiary institution without the prior approval of the University of Adelaide and where applicable, any partner institution responsible for the joint award of this degree. Some of the arguments in this thesis have been developed through publication during the course of research and writing. The concept of intercession was first presented at the Responsibility to Protect in Theory and Practice Conference, University of Ljubljana, Slovenia