Missions Autorisées par le Conseil de Sécurité à L’Heure de la R2P: Vers une Application Différenciée du Jus in Bello? (R2P Missions Authorized by the Security Council: Towards a Differentiated Application of the Jus in Bello?)

Abstract

This paper (in French) was presented at a conference organized by the University of Grenoble's CESICE. Drawing on recent philosophical work that tackles the moral legitimacy of the laws of war, it criticizes the rigidity of the jus ad bellum/jus in bello separation in one particular emblematic case, that of humanitarian missions authorized by the Security Council. Whilst there are highly legitimate concerns about a differentiated application of the jus in bello were it to lead to some parties not being bound (or being less bound) by constraints in warfare, such concerns largely evaporate if the argument is that certain parties should hold themselves to even higher standards than those traditionally contemplated by the laws of war. The paper argues that humanitarian operations authorized by the Security Council arise at the intersection of what are two test cases for the jus in bello in that respect, and that an excessively material view of what constitutes a conflict leads us to miss the finer point about whether a conflict can truly be said to arise. First, there is a strong moral intuition that humanitarian interventions that draw on all the flexibility of the laws of war will sooner or later run into normative contradictions. Second, there has long been a minority view internationally that, on political-theoretical and normative grounds, UN authorized and particularly UN implemented missions should not be considered as making the world organization a mere party to armed conflicts that it seeks to pacify. Put together, these two intuitions suggest that what the Security Council was doing in Libya or Ivory Coast ought to be seen as having more to do with a police operation enforcing key international norms than a conflict as that term can be understood. The paper then attempts to draw some practical implications from the intuition. It argues that at the very least rigid adherence to the laws of war should be axiomatic in SC mandated humanitarian operations, but that an argument can be made for applying a different body of norms to such interventions, possibly having much more to do with human rights law. Moreover, the paper argues that although UN troops should be held to higher standards, the flip side of the coin is that they should also benefit from greater protections, indeed those same protections that are afforded to peacekeepers not engaging in belligerency. Only such protections are consonant with UN troops' status as enforcers of international law rather than merely parties to a conflict. Arguments that those two moves would weaken the application and enforcement of international humanitarian law are dismissed as superficial and illogical. The paper concludes with a few thoughts on the need to think about the general economy of international law when addressing such matters, rather than being entirely focused on the implementation of the laws of war as a specialized regime.