Reassessing the Responsibility to Protect

Conceptual and Operational Challenges

Brett R. O'Bannon

• Publisher: Routledge
• Year: 2015
• Print ISBN: 9780415667579
• eBook ISBN: 9781134695898
• Edition: 1
• Topic: Droit
• Subtopic: Histoire de l'armée et de la marine

This book explores conceptual and operational questions regarding the development and implementation of the Responsibility to Protect.

The mass atrocity norm known as the Responsibility to Protect (R2P) has enjoyed meteoric success since the concept was introduced in 2001. But perhaps precisely because of how quickly the concept secured its privileged place in the pantheon of ideas and concerns in international affairs, many fundamental questions remain concerning its origins, its conceptual contents, and its relevance to actual cases of mass atrocity. This book seeks to explore that terrain by drawing together a group of scholars diverse enough to engage with the complex array of political, legal and ethical questions raised by R2P. Critical questions raised here include: What are the limits of the authority that R2P confers on international actors? What does the evolution of R2P mean for North-South relations? Just how significant is R2P in the context of the broader human rights landscape? In addition to those conceptual and theoretical matters, special attention is given to the operational context in which the meaning of R2P is ultimately rendered. As events in Africa have figured so significantly into the norm's development, the contributors pay special attention to the problems and prospects of mass atrocity prevention in that context.

This volume will be of much interest to students of the Responsibility to Protect, war and conflict studies, peacebuilding, international law, and IR/Security Studies.

1 The responsibility to protect and the limits of international authority

Anne Orford

DOI: 10.4324/9781315882512-2

In 1999, then UN Secretary-General Kofi Annan described the United Nations as the champion of ‘the collective conscience of humanity’.¹ In so doing, he drew on an idea of international actors as somehow transcending the politics of any given state that had gained ground in the decade since the ending of the Cold War. As the representatives of conscience, the UN and nongovernmental organisations were understood to exist outside the sometimes unsavoury world of political calculation and statecraft. The emergence and embrace of the responsibility-to-protect concept since 2001 has expressed a shift in that allocation of roles between states (understood as agents of realpolitik and political calculation) and international actors (understood as champions of conscience and witnesses to truth). Much of the attention in internationalist literature exploring the nature and scope of the responsibility-to-protect concept has focused on the ways in which that concept justifies the expansion of international authority in situations where a state has failed to protect its population. International actors, particularly the UN, are portrayed as the protectors of life and welfare, with a newly unbounded jurisdiction and freedom to determine what forms of action are needed to protect those at risk of genocide, war crimes, crimes against humanity, and ethnic cleansing. There has been less attention paid in that internationalist literature to articulating the proper limits to the jurisdiction of those exercising international protective authority. Yet, as the task of international organisations and civil society shifts from representing the collective conscience of humanity to undertaking international police action in humanity’s name, the need for a debate about the proper limits to the authority of such actors is becoming apparent. This chapter will explore some of the symptoms of the need to address those limits that have arisen through attempts to implement the responsibility-to-protect concept.

The UN and the collective conscience of humanity

The year 1999 was difficult for the UN. It was the year in which NATO circumvented the UN Security Council to intervene in Kosovo. NATO’s action exposed the fault lines that divided world opinion on issues of international authority and intervention. While some states and commentators saw the NATO intervention as illegal and ineffective, others commented that there was strong ‘moral or humanitarian justification for the action’.² Key to the division of opinion on the legitimacy of humanitarian intervention in general, and NATO’s action in particular, was its link to realpolitik and great power ambition. Was it really possible to divorce the interests of powerful states from their role as humanitarian interveners? Did the UN and other humanitarian organisations lose their authority and their claim to impartiality if they aligned themselves with powerful states to defend human rights or end human suffering?³ Yet, if humanitarian actors or international organisations did not create alliances with powerful states, how could they ensure a supply of the resources (whether financial, administrative, or military) necessary to bring about the social change or the end to suffering that they sought? This issue had particular resonance at the UN. For UN officials, the failure to respond in situations that ‘shock the conscience of mankind’ would mean abandoning what many had come to see as the mission of the organisation.⁴ Kosovo (and later Iraq) represented a possible dystopian future in which powerful states or coalitions of the willing side-lined the UN and took its place as the representatives of humanity. Indeed, some commentators argued that if the UN failed to make the right decisions, failed to protect populations at risk effectively, and failed to conduct itself in conformity with fundamental human rights values, there was nothing wrong with coalitions of the willing, powerful states, or regional organizations taking its place as executive agents of the world community, particularly if they could do so more efficiently. The precedent represented by Kosovo thus threatened not only the authority of the sovereign state but also that of the UN. Revealing a keen understanding of the threat that the NATO action in Kosovo represented to UN jurisdiction, then Secretary-General KofiAnnan warned in his 1999 Annual Report to the UN General Assembly, ‘If the collective conscience of humanity … cannot find in the United Nations its greatest tribune, there is a grave danger that it will look elsewhere for peace and for justice’.⁵

The year 1999 was also the year in which the reports of two UN inquiries were published – one into the responsibility of the UN for allowing genocide to unfold in Rwanda in 1994 and the other into the responsibility of the UN for the failure to protect the inhabitants of the UN-created safe haven of Srebrenica from genocide in 1995.⁶ Many of the practical or operational challenges involved in international humanitarian action were exemplified by the disastrous effect of the attempts in Rwanda and Srebrenica to create ‘safe havens’ or humanitarian spaces in which the UN and humanitarian NGOs could protect the lives of civilians in situations of civil war or genocide. In the aftermath of those genocides, both internal and external critics questioned the viability of the long-standing commitment to impartiality and neutrality on the part of UN peacekeepers and humanitarian agencies in situations of mass atrocity. In the words of a major UN report on the future of UN peace operations, although impartiality should remain one of the ‘bedrock principles’ of peacekeeping, there are cases where ‘local parties consist not of moral equals but of obvious aggressors and victims.’⁷ In such situations, ‘continued equal treatment of all parties by the United Nations can in the best case result in ineffectiveness and in the worst may amount to complicity with evil’.⁸ The report called on world leaders ‘to strengthen the capacity of the United Nations to fully accomplish the mission which is, indeed, its very raison d’être: to help communities engaged in strife and to maintain or restore peace’.⁹ The massacre of civilians who had relied on the UN for protection in Srebrenica and Rwanda had shown ‘how easy it was to declare land “safe”, yet how difficult it was to persuade the major powers in fact to secure civilians’.¹⁰ It was in light of this history that Kofi Annan famously asked the members of the General Assembly: ‘if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that affect every precept of our common humanity?’¹¹

Despite the force of Kofi Annan’s appeal, the idea that the UN might represent ‘the collective conscience of humanity’ was a controversial one. That idea was controversial for at least two reasons. The first involves the question of authority or jurisdiction. For much of its history, the UN had been largely concerned with more pragmatic and prosaic tasks of technical assistance and development aid, punctuated by limited forays into fairly modest forms of peacekeeping and civilian administration under more charismatic Secretaries General. Despite the role that human rights organisations played in the drafting of the UN Charter,¹² and the role that they would later come to play in shaping the expectations of international actors, human rights approaches did not inform the early forms of engagement with decolonised states by the UN. Indeed, Dag Hammarskjöld, who was the Secretary General at the time of the Suez and Congo crises, was quite hostile towards attempts to institutionalise human rights within the work of the organisation in the early years of decolonisation.¹³ The many institutional discussions of the need to assist newly independent states that took place at the UN during the 1950s and 1960s involve strikingly few references to the protection of human rights as a major concern of international action. While independent states themselves sponsored support for the right of self-determination and the end of colonial oppression as core commitments of internationalism,¹⁴ there was little or no support for the idea that the UN or great powers had a right to intervene within the affairs of Member States in the interests of protecting human rights or realising democratic values during the Cold War era. The ever-present threat of proxy wars and of nuclear annihilation that accompanied the heating up of the Cold War led government leaders and international lawyers to engage in fierce debates about the meaning and limits of the commitment to non-use of force and non-intervention in the internal affairs of states.¹⁵

Within that Cold War context, the claim that international actors might resort to force on behalf of the conscience of humanity received short shrift. Humanitarian intervention played a limited role both in official justifications for the use of force and in scholarly commentary. General Assembly resolutions passed during the 1970s unambiguously outlawed forcible intervention.¹⁶ States themselves did not seek to justify their resort to force as humanitarian intervention.¹⁷ Thus while India’s intervention in East Pakistan, Vietnam’s intervention in Cambodia, and Tanzania’s intervention in Uganda have all since been justified by commentators as Cold War examples of humanitarian intervention, none of the intervening states justified their actions on humanitarian grounds at the time. This was not because the governments of India, Vietnam, or Tanzania lacked a sense of justice or an account of morality that was adequate to their actions, but because they considered the prohibition on unilateral intervention in the UN Charter as itself a moral statement.¹⁸ Humanitarian intervention was ‘not a doctrine that responsible states would want to espouse’ because it was ‘a doctrine capable of uncontrollable abuse’.¹⁹ The notion that a powerful state or a coalition of allies might intervene to rescue or protect the people of another state could not easily be represented as an apolitical action. The Brezhnev doctrine of intervention to protect the self-determination of socialist countries in the face of capitalist threats and the Reagan doctrine advocating the legitimacy of pro-democratic invasion were met with protest and scepticism.

The second reason for the controversial nature of the idea that the UN represents the collective conscience of humanity is a more practical one. Is it possible for the UN to act both as the representative of collective conscience and as the guarantor of peace and security? For many centuries, the moral authority of conscience has been invoked in opposition to the activities of politicians and the world of state-craft – ‘conscience’ has been the enemy of ‘sovereignty’.²⁰ The most influential modern representatives of this tradition of conscience as the enemy of sovereignty are the international human rights law and international criminal law movements. The question posed by KofiAnnan’s appeal to conscience as a basis for mobilising military intervention was whether it would truly be possible for the UN to create order and maintain security while refraining from political calculation and from the more unsavoury aspects of statecraft, including collecting intelligence, using violence, and deciding who should be sacrificed to protect the greater good. If not, what were the implications of appealing to the moral authority of universal values to justify the exercise of power by international actors? These questions were to come to the fore with the development of the responsibility-to-protect concept as an institutional response to the humanitarian intervention debate.

The adoption of the responsibility-to-protect concept

In response to the challenges posed by Kofi Annan, the Canadian government announced at the General Assembly in 2000 its establishment of the International Commission on Intervention and State Sovereignty (ICISS), tasked with producing a report on the issues involved in debates about intervention. The subsequent ICISS report, titled The Responsibility to Protect, sought to transcend the perceived tension between sovereignty and humanitarian intervention that had divided international responses to the NATO intervention in Kosovo.²¹ The report noted that while some saw the Kosovo interventi...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of Contributors
• Acknowledgements
• Introduction: Ontological insecurity and the origins of R2P
• 1 The responsibility to protect and the limits of international authority
• 2 Understanding the gap between the promise and the reality of ‘the responsibility to protect’
• 3 The rise and fall (and supposed rise again) of the responsibility to protect (R2P) as a norm of international law: R2P in the human rights landscape
• 4 Africa: Is there a state? Implications of statelessness for a state-centric human protection norm
• 5 The responsibility to protect in Congo: The failure of grassroots prevention
• 6 United Nations action in Sri Lanka and the responsibility to protect
• 7 The unintended consequences of UN peacekeeping in post-war South Sudan: Why everyone wants a uniform
• 8 Crying out for action: Do the dead say anything about the responsibility to protect?
• Index