Responsibility to Protect and Sovereignty

Ramesh Thakur, Charles Sampford, Charles Sampford

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317064800
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The responsibility to protect ('R2P') principle articulates the obligations of the international community to prevent conflict occurring, to intervene in conflicts, and to assist in rebuilding after conflicts. The doctrine is about protecting civilians in armed conflicts from four mass atrocity crimes: genocide, war crimes, crimes against humanity and ethnic cleansing. This book examines interventions in East Timor, Sri Lanka, Sudan and Kosovo. The chapters explore and question UN debates with respect to the doctrine both before and after its adoption in 2005; contrasting state attitudes to international military intervention; and what takes place after intervention. It also discusses the ability of the Security Council to access reliable information and credible and transparent processes to enable it to make a determination on the occurrence of atrocities in a Member State. Questioning whether there is a need to find a closer operational link between the responsibilities to prevent and react and a normative link between R2P and principles of international law, the contributions examine the effectiveness of the framework of R2P for international decision-making in response to mass atrocity crimes and ask how an international system to deal with threats and mass atrocities can be developed in the absence of a central authority. This book will be valuable to those interested in international law, human rights, and security, peace and conflict studies.

Chapter 1
Introduction

Charles Sampford

The Responsibility to Protect was born in 2001, widely debated and discussed and then anointed by the United Nations World Leaders Summit in 2005 which adopted it through an omnibus General Assembly resolution.1

The responsibility to protect attempts to address questions about the relative duties/obligations/responsibilities2 of sovereign states, other states and the international community to prevent and terminate mass violence against civilian victims. The International Commission on State Sovereignty and Intervention (ICISS) and its report, The Responsibility to Protect, cites three specific responsibilities:3

1. the responsibility to prevent – to address both the root causes and direct causes of internal conflict;

2. the responsibility to react – to respond to situations of compelling human need with appropriate measures; and

3. the responsibility to rebuild – to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.4

The responsibility to protect norm/principle/doctrine,5 dubbed ‘R2P’,6 was limited by the World Summit to the most serious persecution of civilian populations including genocide, war crimes, crimes against humanity and ethnic cleansing.

R2P provides the vital conceptual breakthrough in the long-held debate over state sovereignty vs humanitarian intervention. International debates over how to respond to atrocities such as Rwanda or in Sudan had tended to focus on the rights of states – of other states to militarily ‘intervene’ across sovereign borders and the right of the home state to treat such matters as an internal affair. The rights and needs of those to be protected were not so central.7 But the international concern was raised by mass attacks on civilians by militaries, militias and terrorist groups as part of a deliberate war strategy or in facilitation and support of ‘rogue elements’. Such attacks included killing, rape as a tool of war, forced displacement and the intimidation. Such attacks are supported by dualistic thinking that dehumanises civilian populations.8 Violence against civilians can come about because of non-conflict lawlessness, coups and reaction to insurgent activity; the result can be genocide.

The requirement for protection of civilians (PoC) is central to international humanitarian law (IHL), human rights law and refugee law. PoC has emerged as the central goal of many international missions and a key principle for the United Nations (UN) and many member states. It has led to seven reports by the United Nations Secretary General,9 five UN Security Council (UNSC) resolutions,10 and eight presidential statements.11 Eight UN mandates have placed protection of civilians at the centre of their missions.12 Specific measures include: extending the mandate of UN peacekeeping operations to permit peacekeepers to protect civilians under imminent threat of violence; highlighting the protection needs of especially vulnerable groups (women, children, refugees and internally displaced persons, humanitarian workers); pushing for compliance with international human rights, international humanitarian and refugee law; ensuring better conflict prevention; stressing the multi-disciplinary nature of peace-building; seeking greater co-operation with regional actors; maintaining the separation of combatants and armed elements from civilians in internally displaced persons (IDP) and refugee camps; working on disarmament and demobilisation; and ensuring timely intervention in cases of genocide, crimes against humanity and war crimes.13

Where international assistance is provided, it is recognised that a range of civil and military organisations will be required to deliver the necessary protection but that co-ordinating the efforts of such agencies can be enormously difficult.14 There are indications that the UN and member states acknowledge the importance and prevalence of the protection of civilians15 and are committed to its full and effective implementation. In July 2009, the Departments of Peacekeeping Operations and Field Support launched A New Partnership Agenda: Charting a New Horizon for UN Peacekeeping.16 Recommendation 12 proposed the development of a clear and comprehensive guidance on implementation of protection of civilian mandates in peacekeeping.

Protection – of Whom, from What

A key problem for the protection of civilians (PoC) in armed conflict is the lack of an agreed-upon definition or framework of protection, both between and within various groups of actors (military, government, regional and international organisations and humanitarian/private/non-government organisations). While it will most likely be impossible (or even desirable) to achieve an agreed-upon definition, considering the range of actors for co-ordination, to better understanding and training between groups may enable improved relations and co-operation,17 it is recognised that protection may have different meanings depending on context, culture,18 the missions of agencies and NGOs and the disciplines of those involved.

Working in collaboration with over 50 human rights organisations, the International Committee of the Red Cross (ICRC) has sought to define protection via a framework including three linked types of action: responsive, remedial and building an environment that promotes respect for the rights of individuals.19 The ICRC’s meaning, ‘all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of the relevant bodies of law’, seems to go beyond protection to promoting rights and better societies.

However worthy those goals, it would be hard to get agreement of the host and/or UN Security Council if missions were drawn so broadly given limited resources. In any case, broad and uncertain meanings are likely to make operationalising PoC difficult to impossible.20 Unfortunately, the perceived need for international assistance often overlooks the potential contribution of those being protected21 so that assistance is seen as creating new protection systems rather than fixing and enhancing existing ‘protection systems’.

There is a relationship, although contested,22 between PoC and R2P through the common denominator of civilian protection.23 They may ‘differ in terms of scope but while PoC is all-inclusive in protecting civilians under imminent threat of physical violence, R2P is limited to what are defined as the four main atrocity crimes. R2P emerged to provide a more robust framework for protection in such situations than that offered by PoC’.24 There is international resistance to R2P because some see it as legitimising military intervention.25 Recent events in the Middle East have proved to be somewhat of a watershed. Resolution 1973 is the first Security Council resolution authorising military intervention for the purposes of protecting civilians in the name of the Responsibility to Protect (‘R2P’) principle.26

The Authors and Their Analyses

The book sets out to examine and question:

• UN debates with respect to the doctrine both before and after the resolutions’ adoption;

• Official attitude to a humanitarian intervention by nation states;

• What takes place after any intervention;

• The ability of the Security Council to access reliable information and whether the United Nations should adopt new processes to ensure the Security Council has sufficient evidence to enable it to make the important judgment about whether or not genocidal activities or ethnic cleansing are occurring in a target State;

• Whether there is a need for finding a closer operational link between the responsibility to prevent and the responsibility to react and a normative link between the responsibility to protect and principles of international law;

• If R2P has little potency as a framework for international decision-making in response to mass atrocity crimes;

• ‘How, in short, do we build an international system that responds to threats like mass murder and mass ethnic cleansing in the absence of a central authority?’

In Chapter 2, Spencer Zifcak argues that while the R2P doctrine was readily accepted by UN member states in principle, the R2P doctrine had only sparsely been applied in practice. All that changed with the arrival of the Libyan and Syrian crises. Early in 2011, the doctrine faced the sternest test of its practical application in response to the Libyan and then the Syrian uprisings. He describes the two conflicts with a view to analysing and assessing the realities of pillar 3 international intervention so as to evaluate the political and legal standing of R2P in their wake.

Over the last few years, Security Council members have increasingly asserted that it is the primary responsibility of the State to protect its civilians – or R2PC. The phrase appears in Council Resolutions, Secretary-General Reports and Council Open Debates on the protection of civilians. Hugh Breakey argues in Chapter 3 that Council members have a shared conception of R2PC, and that it is an inventive amalgamation of different aspects of International Humanitarian Law, International Human Rights Law and the Responsibility to Protect.

Chapter 4 is a critical evaluation of Australia’s intervention in East Timor. Clinton Fernandes argues that Australian policymakers were forced to send in a peacekeeping force under the pressure of a tidal wave of public outrage. Although the episode has since been reconstructed as a remarkable success of humanitarian intervention, the historical record indicates that the Australian Government worked assiduously to prevent international intervention in East Timor until the bi...