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VERONIKA BÍLKOVÁ
CYIL 5 ȍ2014Ȏ
need to follow certain criteria of the legitimate use of force on the other hand. This
approach is reflected in the 2011 Concept Paper and in the 2012 statement of Brazil
in the UN General Assembly. The Concept Paper asserts that a series of limitations
was imposed upon the use of force under R2P by the 2005 Outcome Document. The
limitations are divided into three groups. Material limitations have to do with the circle
of triggers of R2P, namely the four core international crimes (genocide, war crimes,
ethnic cleansing, and crimes against humanity). Temporal limitations restrain the use
of force to cases of manifest failure of an individual state to exercise its responsibility
to protect and condition it by the exhaustion of peaceful remedies. Formal limitations
require that force be only applied under R2P through the UN Security Council, in
accordance with the UN Charter and on the basis of a case-by-case evaluation.
These limitations imposed upon R2P are viewed as important but insufficient.
The intervention in Libya has allegedly shown that even when all these conditions are
fulfilled, the implementation of R2P can still go astray. Hence, when exercising its
Responsibility to Protect, the international community needs to show Responsibility
while Protecting, which sets further limits to the use of force applicable both to
states and to the UN Security Council. On the one hand, intervening forces need
to respect international standards encompassing applicable norms of international
humanitarian law and international human rights law. On the other hand, intervention
by military means can only take place if the criteria of the legitimate use of force are
met. Those criteria are clearly inspired by the traditional doctrine of the just war
(
bellum justum
). While Brazil has never put forward a complete catalogue of those
criteria, as advocated for in the 2001 ICISS report and in various publications by
Gareth Evans,
21
it seems to uphold most of them (just cause, right authority, right
intention, last resort, proportional means, and reasonable prospects).
The just cause criterion is present in the requirement that the use of military
force be limited to cases of genocide, war crimes, ethnic cleansing, and crimes against
humanity. The right authority is that of the United Nations, as expressed in the
principle under which
“the use of force, including in the exercise of the responsibility to
protect, must always be authorized by the Security Council, in accordance with Chapter
VII of the Charter, or, in exceptional circumstances, by the General Assembly, in line with
its resolution 377 (V)”
.
22
The other just war criteria, called precautionary principles
in the ICISS report,
23
also find their way into RwP, albeit adjusted to the context of
UN-mandated operations. Thus, the right intention and proportionality translate
into the requirements that the authorisation of the use of force be
“limited in its
legal, operational and temporal elements”
24
and that the military intervention in itself
be
“judicious, proportionate and limited to the objectives established by the Security
21
The Responsibility to Protect and The Use of Military Force,
Presentation by Gareth Evans, President,
International Crisis Group, to Seminar on International Use of Force, World Legal Forum, The Hague,
11 December 2007.
22
UN Doc. A/66/51-S/2011/701,
op. cit.,
par. 11(c).
23
The Responsibility to Protect,
Report of the ICISS,
op. cit.,
p. XII.
24
UN Doc. A/66/51-S/2011/701,
op. cit.,
par. 11(d).