Legitimacy faultlines in international society: The responsibility to protect and prosecute after Libya

Abstract

There is a perceived legitimacy deficit in contemporary international society. A symptom of this is the political contestation surrounding the 2011 Libyan crisis and its influence on the 2011–13 Syrian crisis. This involved criticism being levelled at the coalition led by the so-called Permanent-3 for the way they implemented the protection of civilians mandate, as well as for the referral of the Libyan situation to the International Criminal Court. How the P3 respond to these developments will be driven in part by how this ‘legitimacy fault line’ is interpreted. The purpose of this article is to first give an interpretation that is informed by the work of contemporary English School scholars and the political theorists they draw on; and second to provide the context in which specific policy recommendations may guide the response of the P3 states. We argue that because the new legitimacy fault line divides on the procedural question ofwho decides howinternational society should meet its responsibilities rather than substantive disagreements aboutwhatthose responsibilities are (that is, human protection and justice) the challenge to the liberal agenda of the P3 is not radical. However, we also argue that ignoring the procedural concerns of the African and BRICS states is not outcome neutral and could in fact do harm to both the ICC and the wider implementation of R2P. We consider two proposals for procedural reform and examine how the P3 response would impact on their claim to be good international citizens.

A responsibility to protect Africa from the West? South Africa and the NATO intervention in Libya

“…The NATO intervention in Libya has opened up a "legitimacy faultline" in the international community and a broad debate about the accountability of the Security Council, its representativeness, and also the future of humanitarian interventions (Ralph and Gallagher 2014). The intervention required a "perfect storm" of political factors to coalesce in order to secure a Security Council mandate for intervention, including the lack of strong opposition from a veto-wielding Council member, the presence of regional support, and a deeply divided and poorly articulated African response (Dunn and Gifkins 2013).…”

The purpose of United Nations Security Council practice: Contesting competence claims in the normative context created by the Responsibility to Protect

“…On this reading, the vote on Resolution 1973 was not a complete victory for P3 diplomats. The resolution passed but the Council was divided, and the ‘faultline’ would become clearer as the P3 implemented the mandate ( Ralph and Gallagher, 2015 ). The main point here, however, is that this debate exposes the limitation and risk of applying practice theory on an analytical plane that is separate to norm and normative theory.…”

South Africa and the Responsibility to Protect: from champion to sceptic

“…39 Similar to South Africa's procedural concerns about R2P, this should not be interpreted as opposition to the idea of international criminal justice, but rather to the way in which the ICC is seen to be operating and doing the bidding of the powerful states in the UN Security Council. 40 The response by African states to what they perceive to be initiatives that advance Western interests and unfairly target African states has been to create alternative institutions. For example, in 2014, it was proposed that the African Court of Justice and Human Rights create a third chamber that will fulfil a similar function to the ICC.…”