Reviewing the Responsibility to Protect

Origins, Implementation and Controversies

Ramesh Thakur

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351016773
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Derechos humanos

This volume is a collection of some of the key essays by Ramesh Thakur on the origins, implementation and future prospects of the Responsibility to Protect (R2P) norm.

The book offers a comprehensive yet accessible review of the origins, evolution, advances and shortcomings of the R2P principle. A literature review is followed by an overview of the background, meaning and development of R2P. With a focus on the International Commission on Intervention and State Sovereignty (ICISS), Part I analyses the features of, and explains the factors that make for success and failure of commission diplomacy. Part II discusses the controversies surrounding efforts to implement R2P, including the role and importance of emerging powers. Part III describes the remaining protection gaps and explains why R2P will remain relevant because it is essentially demand driven. Finally, the book concludes with a look back at the origins of R2P and looks ahead to possible future directions.

This book will be essential for students of the Responsibility to Protect, and of much interest to students of global governance, human rights, international law and international relations.

1 Introduction

Tyranny is not restricted to any particular religion, culture, civilisation or gender. Political rule based in terror rather than citizen’s welfare, safety and security is a universal moral failing. Because the ability of tyrants to rule by terror free from external restraints and counter-measures was seen as having been sanctified by the Westphalian system of sovereign states, the need arose for a matching universal norm to ban and stop atrocities. One of the most important developments in world politics in the last two decades has been the spread of the twin ideas that state sovereignty comes with responsibilities – both domestic and international – as well as privileges, and that there exists a global responsibility to protect people threatened by mass atrocity crimes. The 2001 report of the International Commission on Intervention and State Sovereignty (ICISS) entitled The Responsibility to Protect put these ideas into active circulation, and United Nations resolutions in 2005, on the 60th anniversary of the establishment of the organisation, gave the ideas further substance.

More recently, the justification of action by the North Atlantic Treaty Organization (NATO) in Libya, on the strength of Security Council Resolutions 1970 and 1973, made explicit reference to the principle of the Responsibility to Protect (R2P), and put this particular notion at the centre of discussion of some of the most challenging political dilemmas of our times. As international leaders struggled in vain to find ways to deal with mounting political violence in Syria, and then again with the emergence of the ‘Islamic State in Iraq and Syria’, the idea of R2P was never far below the surface. For advocates, R2P is a poster child of liberal internationalism, summoning forth the better angels of human nature to save strangers in distant lands within a rules-based global order. But for critics, it is the enabler of choice for powerful countries to appropriate the language of humanitarianism in which to cloak base geopolitical motives when violating the sovereignty of weak nations.

These concrete political developments have helped to generate a substantial scholarly literature concerned with the genesis of the idea of R2P and with the ways in which it has been refined through multilateral deliberation. Through mainstream as well as dedicated journals, such as Global Responsibility to Protect, researchers have sought to explore the ambit of the R2P doctrine, discussing, for example, whether it can properly be applied in circumstances where a population is threatened by the ravages of natural disaster or is living under the rule of a foreign occupying power.

One key element of the context within which the idea of a responsibility to protect took shape was a critical weakness in the normative framework determining how sovereign states should relate to one another and to international organisations. This weakness arose because of the unsatisfactory nature of ideas about ‘humanitarian intervention’ that had resurfaced. Another key element was a sequence of events in which ordinary people were brutalised in ghastly ways in various parts of the world. Whilst the Holocaust had already provided an unprecedentedly horrific example of mass murder on an industrial scale, there had been hopes in the aftermath of the Second World War that the new architecture of the United Nations, the development and anathematisation of the idea of genocide and the capacity of media to expose horrendous acts of cruelty would put a stop to such events. Yet they persisted, and in the post-Cold War period, developments such as ethnic cleansing in the Balkans, and above all the Rwanda genocide of 1994, made it a matter of urgency to find a better way of ‘saving strangers’ and protecting the vulnerable.

The use of the vocabulary of humanitarianism to justify political and coercive measures – up to and including the use of force – is not a novel development. Unfortunately, the claim to be acting on humanitarian grounds was open to being abused to camouflage other self-interested geopolitical and commercial motives. Many developing countries were intimately familiar with this as part of their historical encounter with European colonial powers. A grim example of this was provided in Europe itself by Germany in the 1930s, where Berlin frequently sought to justify the expansionism of Nazi Germany by reference to the need to protect the alleged infractions of the rights and freedoms of ethnic Germans living in other countries such as Czechoslovakia and Poland. At the same time, the phenomenon of Nazism is an enduring reminder that the Universal Declaration of Human Rights and the Genocide Convention have their roots in the recognition of the capacity for evil of Western civilisation and the desire to ban it through universal norms. Similarly, the instinct to brutality over subjects by some rulers found its greatest enabler in Westphalian sovereignty that too originated in Europe. Because the instinct is universal it needs a universal norm to ban it. To that extent R2P is a global response to a distinctly Western-origin problem, not a Western response to a third world problem.

While earlier conflicts had certainly attracted attention in terms of their humanitarian implications, and statesmen in the 1920s had sought to outlaw war as an instrument of policy, in the aftermath of the Second World War, a new framework of norms and rules was developed to deal with the use of force in international relations, a framework centred on the Charter of the new United Nations. At one level, the framework was a simple one:

Article 2.4 provided that ‘All Members shall refrain in their international relations 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’.

Article 39 sought to head off unilateral impulses by stating that ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security’.

Article 41 provided that ‘The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions’.

Article 42 provided that ‘Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved 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. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations’.

Article 51 provided that ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security’.

Thus, the United Nations Charter codified both the law and the new normative consensus. One crucial problem, however, remained. The Charter granted permanent membership of the Security Council to five states – the United States, the United Kingdom, the Soviet Union, France and China – and with it, the power to veto any non-procedural resolution. The possibility, if not the virtual certainty, that the Council could prove impotent – either because of a stand-off between the superpowers, or by virtue of a simple lack of interest in some remote part of the world on the margins of global interest and attention – raised the question of what should be done when some horror seemed to require action, but action could not be justified either by reference to self-defence, or alternatively to explicit Security Council authorisation. An answer came with the idea of ‘humanitarian intervention’, which might be morally justifiable even if not defensible legally. Various examples of state behaviour were from time to time cited as examples of humanitarian intervention, including the Indian intervention in East Pakistan in 1971 that created Bangladesh as an independent state, the Vietnamese invasion of Cambodia in 1978 that resulted in the displacement of the genocidal Khmer Rouge regime, and the Tanzanian overthrow of Idi Amin in Uganda in 1979.

While a number of observers welcomed the consequences of these specific actions, many others voiced unease about the principles involved and the future risk to the multilateral rules-based global order from the precedent being set of unilateral interventions. A wide range of criticisms surfaced. One related to sincerity of purpose. Did Vietnam really invade Cambodia on the basis of humanitarian motives, or did such claimed motives simply provide convenient cover for an intervention carried out for quite different purposes? Another related to consistency and to the fear that the doctrine of humanitarian intervention would simply magnify asymmetries of power in the international system, with states that had long seen themselves as meeting some standard of ‘civilisation’ becoming moral policemen for younger states only recently freed from colonial domination, and acting with considerable hypocrisy to boot. Yet another criticism drew on the ethics of consequences to suggest that humanitarian intervention provided no guarantee that the ‘beneficiaries’ would ultimately be better off than if no intervention had occurred. None of these objections was trivial and, in large parts of the world, they undermined claims to legitimacy that humanitarian intervention might have sought.

Despite these inadequacies in the concept of humanitarian intervention, it did seem in some ways to fill a need. The first half of the decade of the ‘new’ post-Cold War era was dominated by a number of developments that seemed to create anew the need for some morally defensible form of international action to shelter the vulnerable. With the attention of the wider world focussed on the holding of the first multiracial elections in South Africa, extremists in Rwanda embarked on the genocidal slaughter of those whom they conceived to be enemies. And as Yugoslavia disintegrated, Bosnia-Herzegovina became the theatre for hideous exercises in ‘ethnic cleansing’ and the United Nations itself was comprehensively humiliated by the massacre of men and boys in Srebrenica in 1995 sheltering in UN ‘Safe Areas’ under the protection of UN blue helmets. The killing of Africans seemed to weigh very differently in the moral calculus of key Western leaders than did the killing or displacement of people in Europe who looked rather like them. NATO’s intervention in Kosovo in 1999 without Security Council authorisation added to this impression.

ICISS and R2P

The combination of problems crying out for attention, and a doctrinal response, the weaknesses of which seemed to undermine its legitimacy, set the scene for conceptual innovation and normative entrepreneurship. Lloyd Axworthy, Canada’s foreign minister (1996–2000), launched ICISS in September 2000. Its report, The Responsibility to Protect, was published in late 2001. The principle was endorsed unanimously by world leaders meeting at the United Nations summit in 2005. Since then, R2P has progressed along three parallel tracks in the UN system: in numerous UN Security Council resolutions and presidential statements, starting with Resolution 1674 (28 April 2006); in successive reports of the Secretary-General since 2009; and in annual debates in the General Assembly on these reports. In addition, it has been progressively institutionalised in the UN system and in some national governments and widely disseminated and promoted by civil society organisations.

The 2005 UN world summit outcome resolution clarified, narrowed and sharpened the scope of R2P by limiting it to four crimes – genocide, ethnic cleansing, other crimes against humanity and war crimes. The nature of the new principle-cum-norm was further refined in the Secretary-General’s inaugural report on R2P in 2009, drafted by his special adviser on R2P Edward Luck, which reformulated R2P in the language of three distinct ‘pillars’: a state’s responsibility not to commit such mass atrocity crimes or allow them to occur (‘Pillar One’); the responsibility of other states to assist those lacking the capacity to so protect (‘Pillar Two’); and the responsibility of the international community to respond with ‘timely and decisive action’ – including ultimately with coercive military force, but only if authorised by the UN Security Council – if a state is ‘manifestly failing’ to meet its protection responsibilities (‘Pillar Three’).

With these clarifications and refinements, R2P became the normative instrument of choice for converting a shocked international conscience into decisive collective action – for channelling selective moral indignation into collective policy remedies – to prevent and stop atrocities. In the vacuum of responsibility for the safety of the marginalised, stigmatised and dehumanised out-group subject to mass atrocities, R2P provided an entry point for the international community to step in and take up the moral and military slack. The essence of R2P is that those of us fortunate enough to live in zones of safety, accept first, a duty of care towards the unfortunate strangers trapped in zones of danger, and second an obligation not to unilaterally violate international community norms. In reconciling the two often contradictory imperatives, R2P attempts to strike a delicate balance between institutionalised indifference and unilateral interference. The success of the balance arrived at is shown by the fact that, despite continuing controversy over implementation and contention regarding its normative status, R2P is no longer seriously contested in the policy community as a principle.

Yet the controversy over R2P does indeed continue on two broad fronts, that it offers too little protection: first, against self-interested abuses by powerful countries of the non-intervention norm; and second, against gross abuses by powerful national leaders of the human rights norm. On the one side, the Security Council-authorised and NATO-led military intervention in Libya in 2011 seemed to have borne out the fears of many critics about the potential for abuse of R2P, just like the previous humanitarian intervention doctrine. The post-intervention instability, volatility, lawlessness and killings in Libya only strengthened the criticism. On the other side, R2P remains even more vulnerable to criticisms that in failing to alter state practice, it has failed to deliver on the promise of protection. That is, the greater criticism directed at R2P is not too much and too soon, but too little and too late.

Thus, R2P remains conceptually contested in academic discourse, and its implementation and non-implementation remains politically controversial in the policy community, as demonstrated most vividly in the still unresolved Syrian tragedy and the failure to protect its civilian population caught in the murderous cross-fire between the regime troops and the rebel fighters. The broader criticism is: where is the sense in sanctioning an expansive international use of force in order to enforce restrictive norms against the domestic use of force by states? R2P created intellectual and political excitement in 2001 and 2005 because it was fresh and challenging with the potential to help save strangers’ lives in mass numbers. But the hard edge of its implementation involved the use of force inside sovereign jurisdictions and this proved controversial and confronting in practice.

Nevertheless, it is equally noteworthy that there has been no effort made to rescind R2P as the UN’s organising principle for responding to the threat or outbreak of mass atrocity crimes. There have been scores of Security Council and Human Rights Council resolutions (of which the vast majority were adopted post-Libya Resolution 1973 of 17 March 2011). There are more than 50 each of national focal points in UN member states and Group of Friends of R2P in New York and Geneva. The Global Centre for the Responsibility to Protect, established in 2008, has offices in New York and Geneva, acts as the secretariat for the Global Network of R2P Focal Points and the UN Group of Friends of R2P, publishes regular R2P Monitor and Atrocity Alerts and engages in training programs as well as policy advocacy. The International Coalition for RtoP was formed a year later and has over 92 non-governmental organisations (NGOs) as members. The Asia Pacific Centre for R2P, established at the University of Queensland in 2008 in partnership with Australia’s Department of Foreign Affairs and Trade, promotes the principle in Asia and the Pacific through research and policy dialogue. On the academic side, there have been handbooks, numerous books, innumerable articles and a dedicated and well-regarded journal – The Global Responsibility to Protect – devoted to R2P.

In summary, the Responsibility to Protect is very much part of the contemporary international normative and policy debate on the lawfulness and legitimacy of using force to protect at-risk populations inside sovereign jurisdictions. This book brings together a collection of articles by an insider/outsider who has been part of that debate for the past two decades. It supplements the earlier collection of essays on the topic published by Routledge in 2011, without reprinting any of the essays already published in the first volume.

Structure of the book

The book begins with a literature review published in International Affairs to mark 15 years of the original ICISS report. I have received uniformly positive feedback on the usefulness of this review. This will introduce the reader to the main contours of the responsibility to protect scholarship and debate.

In Part I, the four chapters cover the origins, meaning and development of R2P from 2001 to 2016. Chapter 3 discusses international commissions as instruments of entrepreneurial diplomacy. Drawing on but not limited to the ICISS experience, it analyses the features of, and explains the attributes and factors that make for success and failure of, commission diplomacy. Chapter 4 traces the role that the Rwanda genocide in 1994 and the NATO intervention in Kosovo in 1999 played in influencing debates in and the report of ICISS. Chapters 5 and 6 ex...