The Responsibility to Protect: Securing the Individual in International Society

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The Responsibility to Protect: Securing the Individual in International Society

JENNIFER M WELSH^*

INTRODUCTION

AT THE 2005 Summit marking the sixtieth anniversary of the United Nations, world leaders endorsed in their outcome document the principle of ‘the responsibility to protect’ (also known as ‘R2P’).¹ Article 138 of the document recognises the responsibility of individual sovereign states to protect their own populations from genocide, war crimes and ethnic cleansing. However, in what initially appears to be a departure from the original UN Charter, Article 139 endows the international community with the responsibility to take collective action when national authorities ‘are manifestly failing to protect their populations’ from such atrocities.

This chapter traces the evolution of R2P from its original formulation in the report of the International Commission on Intervention and State Sovereignty (ICISS) in 2001 through to the 2005 World Summit Outcome document. More specifically, it assesses the relationship between R2P and the evolving rules on the use of force in international society, as well as the role of UN Security Council authorisation in legitimating interventions for humanitarian purposes. The argument is in two sections. In the first, I demonstrate that the efforts to shift the debate from rights to responsibilities, while productive in some ways, remain open to challenge both philosophically and legally. Second, I suggest that the articulation of R2P in Articles 138–9 of the Summit Outcome document, despite the hopes of the principle’s proponents, represents a weakening of the original notion and circumscribes the international community’s obligation to protect individuals from massive human rights violations. Of particular concern is the deference shown to the UN Security Council and the implications that flow from relying on its problematic politics. Thus, while there has been a rhetorical commitment to offering international protection for individuals at risk from violence perpetrated (or tolerated) by their own governments, it is not clear that the Summit Outcome document’s attempt to ‘humanise’ security in this way has actually enhanced the capacity of international actors to meaningfully challenge state sovereignty.

THE DEVELOPMENT OF R2P

Debates about the legitimacy of using international military action to address developments in the sovereign jurisdiction of a state have been an integral part of the evolution of modern international society. From the Second World War onward, the debate has focused on the alleged incompatibility of two core principles of the United Nations system: sovereignty and human rights. The former, set out in Articles 2(1), 2(4) and 2(7), suggests that states should enjoy sovereign equality—defined internally as exclusive jurisdiction within a territory and externally as freedom from outside interference. The latter, identified in the Preamble and Article 1(3) and elaborated in subsequent declarations and conventions, suggests that individual rights are inalienable and transcend sovereign frontiers.

Developments of the past two decades have raised further questions about these seemingly contradictory principles and provided added impetus to those calling for more intervention from ‘outsiders’: the weakness (or complete failure) of state structures in many conflict-ridden societies, which is often portrayed as opening up opportunities for criminal activity, arms proliferation and terrorism; the increased vulnerability of civilians in the context of civil conflict; the global and instantaneous access to information that can serve to heighten popular awareness of human suffering; the strengthening of human rights norms and proliferation of human rights organisations; the impact of refugee flows across borders; and the search by Western governments for new forms of political legitimacy and ‘moral authority’ to replace the ideologically driven agenda of the Cold War. Indeed, journalist David Rieff has argued that in the post-Cold War era it has become virtually impossible for Western democracies to wage war ‘without describing it to some extent in humanitarian terms’.²

What marks today’s debate about sovereignty, human rights and the use of force is the relatively permissive context for intervention. This is not to suggest that there is consensus on what constitutes legitimate action. If the international community’s failure to act to stop genocide in Rwanda in 1994 provoked condemnation, so too did NATO’s military campaign to address the ethnic cleansing of Kosovar Albanians in 1999. China, arguably the most powerful developing country in the contemporary international system, voiced its staunch opposition to the NATO action around the Security Council table. As one Chinese commentator put it at that time:

As a matter of fact, interventionism is not at all ‘new’. The Chinese are very familiar with such ‘humanitarian intervention’ in their past and see it as a tool that was often used by advanced countries to conquer so-called ‘barbarous ones’ and to impose ‘civilized standards’.³

For former Secretary-General Kofi Annan, this apparent stalemate over the legitimacy of intervention was unsatisfactory: ‘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?’⁴ To put it another way, Annan was searching for a way to make individuals, not just states, more secure (ie, ‘no more Rwandas’)—but in a way that would command the support of international society as a whole (ie, ‘no more Kosovos’). At the General Assembly in 1999, Annan called for a new consensus on the age-old problem of intervention and a plan of action for responding to humanitarian tragedies.

THE INTERNATIONAL COMMISSION ON INTERVENTION AND STATE SOVEREIGNTY (ICISS)

Canada’s response to Annan’s challenge, announced at the United Nations Millennium Summit in September 2000, was the establishment of the International Commission on Intervention and State Sovereignty (ICISS). The Commission was tasked with three goals: (1) to promote a comprehensive debate about humanitarian intervention;⁵ (2) to foster a new political consensus on how to reconcile the principles of intervention and state sovereignty; and (3) to translate that consensus into action.⁶ In the end, its main contributions to the debate on humanitarian intervention were primarily conceptual: in changing the language from a ‘right of intervention’ to a ‘responsibility to protect’; and in setting out a spectrum of action for the international community, ranging from prevention to military action to post-conflict reconstruction.⁷

The work of the Commission was organised around a central question: ‘when, if ever, it is appropriate for states to take coercive—and in particular military—action against another state for the purpose of protecting people at risk in that other state?’⁸ Its report offers what at first blush seems an elegant solution to the dilemma expressed by the Secretary-General: the international community should view the relationship between sovereignty and intervention as complementary rather than contradictory. This reconciliation is achieved by reshaping the very notion of sovereignty and linking it more closely to the responsibility of states to their citizens.⁹ Hence, sovereignty is no longer conceived as undisputed control over territory but rather as a conditional right dependent upon respect for a minimum standard of human rights. In the words of the ICISS,

It is acknowledged that sovereignty implies a dual responsibility: externally—to respect the sovereignty of other states, and internally, to respect the dignity and basic rights of all the people within the state … Sovereignty as responsibility has become the minimum content of good international citizenship.¹⁰

For the Commission, it logically followed that intervention is permissible—and indeed necessary—if it is aimed at protecting civilians and restoring the effective sovereignty of states.

1. From ‘Right’ to ‘Responsibility’

The central conclusion of the ICISS report is that sovereign states have a responsibility to protect their own citizens from avoidable catastrophe. However, there is also a residual responsibility that can and must (in certain cases) be borne by the broader community of states:

Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.¹¹

The Commissioners suggested that their particular rendering of sovereignty and responsibility makes this coercive external engagement inside another state more legitimate than ‘humanitarian intervention’ as it has traditionally been conceived. In the words of one Commissioner, Ramesh Thakur,

R2P is more of a linking concept that bridges the divide between the international community and the sovereign state, whereas the language of the right or duty to intervene is inherently more confrontational … The goal of intervention for human protection purposes is not to wage war on a state in order to destroy it and eliminate its statehood but to protect victims of atrocities inside the state, to embed the protection in reconstituted institutions after the intervention, and then to withdraw all foreign troops.¹²

The Commission offered a series of reasons why this formulation, centred on ‘responsibility’ and ‘protection’, was more likely to breed agreement in international society. First, it insisted that the notion of protection shifts the focus to where it belongs—on the victims of suffering who seek assistance, rather than on the claims or rights of intervening states.¹³ Second, the Commissioners claimed that the narrow, legal concept of intervention fails to consider the importance of prior preventive actions or post-intervention rebuilding, which in their view had to form part of any contemporary approach to military action.¹⁴ Lastly, the Commission’s rejection of the term ‘humanitarian intervention’ responded to concerns by humanitarian organisations that oppose any attempt to militarise the word ‘humanitarian’.¹⁵

Despite these valiant attempts at consensus-building, the ICISS report has not avoided normative and legal controversy. First, it is worth remembering that the terms ‘responsibility’ and ‘protection’, like ‘humanitarian’, are loaded with ethical content. In fact, in the negotiations leading up to the UN Summit in 2005, some developing countries voiced opposition to the phrase ‘responsibility to protect’ because of neo-colonial connotations.¹⁶ Even if the promoters of R2P have emphasised the protection of civilians rather than the rights of interveners, suspicion on the part of many non-Western states (illustrated most vividly by statements made in the General Assembly and other organisational forums) indicate a lingering fear that sovereign equality will become a chimera if the principle of non-intervention is not vigorously upheld.

In addition, while the Commissioners themselves stayed clear of the word ‘duty’, the logic of the rights and responsibilities they have drawn upon should lead us to it. According to philosopher David Rodin, if the objective is an international responsibility to protect, this implies a prospective responsibility—that is, a duty on the part of international organisations, agencies and outside states to assist citizens if their own state has failed in its primary obligations. But the ICISS articulation of the principle only supports a ‘liberty right’ for members of the international community to intervene (whether for prevention, response or rebuilding); by eschewing the notion of duty, it does not offer citizens inside a state a claim against the international community for protection.¹⁷ This results in not only the possibility of unfulfilled expectations, but also a lack of clarity as to who, precisely, in the international community enjoys this ‘liberty right’.

Third, there are concerns in legal circles about the merits of a shift from ‘right’ to ‘responsibility’. In 2004, when the UN Human Rights Commission considered whether it should develop an approach on the question of human responsibilities, its membership was split down the middle.¹⁸ In general, Western states were opposed to the idea, fearing that some governments would start to make their fulfilment of human rights contingent on individuals’ ‘responsible’ behaviour, or that international organisations and transnational actors would suddenly be called to take on substantial responsibility for the condition of individuals inside developing or conflict-ridden societies. In the words of Andrew Clapham: ‘It is feared that governments that violate human rights will seize the opportunity to reorient the debate around the responsibilities of others.’¹⁹ Such concerns permeate any discussion about creating responsibilities in the human rights context.

Finally, while the ICISS report does not explicitly call for legal reform, it does give a strong impression that the Commissioners believe interventions for humanitarian purposes should be undertaken (in extreme cases). This is not the same as saying that states can act (that is, that they have a legal right to intervene), but it does raise the question—central for those who had Kosovo in the back of their minds—of whether morality and law should be more closely aligned. Since the end of the Cold War, there has been a legal debate as to whether the general prohibition on the use of force, enshrined in Article 2(4) of the United Nations Charter, should be ‘stretched’ to accommodate other important principles of the UN, such as human rights (thereby making military intervention for human protection purposes permissible).

Those in favour of such an expansion point to a series of cases from the 1990s (particularly Liberia, Northern Iraq, Somalia and Kosovo) as state practice supportive of a new customary rule, with statements by Western governments articulating humanitarian motives presented as evidence of an accompanying opinio juris.²⁰ The problem with such an approach is that it privileges custom over treaty—a controversial move from the perspective of the Vienna Convention.²¹ In addition, non-Western legal opinion tends to oppose this interpretation of the customary law on intervention, since it seems to suggest that certain types of practice ‘count’ more than others—that is, the actions of Western states versus the stated opposition from those such as China, Russia and India. But above all, the expansionary approach takes us too far beyond the desired intention of the framers of the United Nations, which was to limit the legitimate exceptions to the prohibition on the use of force to those of self-defence and Security Council-authorised acts of collective security. International lawyer Thomas Franck argues that rather than creating new, positive rights and duties of intervention for humanitarian purposes, such acts should be seen as ‘mitigated’ (even to the point of exoneration) by the context of extreme necessity.²²

2. A Continuum of Action

A second significant contribution of the Commission’s report is its focus on a spectrum of action. According to ICISS, if there is a responsibility to protect, there is also a responsibility to prevent and to rebuild. In addition, the report insists that when faced with evidence of human suffering inside the domestic jurisdiction of another state, policy makers have a wider array of choices between inaction and military invasion. In so doing, it laments that the resources devoted to preventive measures are dwarfed by the money allocated to war preparation, war fighting, humanitarian assistance to victims of violence, and peacekeeping.

The first part of the spectrum is prevention. Following the Carnegie Commission on Preventing Deadly Conflict, the Commissioners distinguished between two sets of preventive strategies: those directed at so-called root causes of conflict (development assistance and support for good governance and human rights); and those targeted at immediate triggers for violence (good offices and mediation, inducements such as conditional assistance, and punishments such as economic sanctions or suspension of membership in international organisations).²³ The ICISS report also identifies three conditions for successful prevention: effective early warning mechanisms; a well-stocked ‘preventive toolbox’ that combines political, economic, legal and military measures; and sufficient political will to act. Nevertheless, the Commission conceded a long-standing thorn in the side of those who have argued for better strategies of prevention: that some states remain reluctant to accept any kind of externally sponsored prevention efforts for fear that internationalising the problem will lead inevitably to intervention.²⁴

The second stage on the continuum—protection—kicks in when the situation on the ground places civilians at serious risk. At this point, the Commissioners argued, the option of military action must be considered and evaluated. They employed a ‘Just War’ framework of six principles to guide decision makers contemplating such action:²⁵

1. Just Cause: Military intervention is an exceptional measure, to be undertaken only in extreme humanitarian emergencies.
   
2. Right Intention: The primary motive of the military action must be humanitarian.
   
3. Last Resort: All non-military options must be explored before force is used.
   
4. Proportional Means: The nature of the force used must be proportionate to the humanitarian objective and limited in scale and intensity.
   
5. Reasonable Prospects: The operation must have a reasonable chance of success, and negative consequences of force must not outweigh the consequences of inaction.
   
6. Right Authority: Military action should be authorised by the United Nations Security Council (but authorisation can be found elsewhere if the Council fails to act).

Finally, the ICISS report calls upon intervening states to commit to a long-term process of rebuilding once the military phase is complete. Here, the recommended priorities are economic reconstruction, the establishment of legitimate and effective institutions of governance, the restoration of public safety and sustainable development. But the Commissioners also acknowledged that there are benefits and drawbacks to requiring outside actors to stay on in the country in which intervention takes place until sustainable reconstruction and rehabilitation have occurred. In particular, they highlighted the importance of achieving a balance between the responsibilities of international actors and the rights of local ‘ownership’. The process of devolving responsibility back to the local community, they insisted, is essential to maintaining the legitimacy of the intervention itself. In what now appears as an understatement (given the problems encountered by international administrations and occupying powers), they concluded:

A poorly administered occupation which overtly treats the people, or causes them to believe they are being treated, as an ‘enemy’ will obviously be inimical to the success of any long-term rehabilitation efforts.²⁶

3. Authorisation

The criteria for action listed above highlight a third contribution of ICISS: its discussion of who should authorise and carry out the responsibilities of the international community. In the wake of the breakdown in diplomacy within the Council in the lead-up to war in Iraq in the spring of 2003, the issue of ‘right authority’ has become even more contentious. Despite misgivings from some members of the Commission, the ICISS report insists that the UN Security Council is still the appropriate body to authorise intervention for human protection purposes. But the Commissioners were all too aware of the objections to such a recommendation: the slowness of Security Council decision making; the under-representation of key regions; and the political nature of vetoes of the five permanent members. (There is also the more obvious point that by requiring Security Council authorisation, one ensures that R2P will never be applied against a Permanent Five (P5) member.) Nonetheless, they believed recourse to unregulated unilateralism was an even more unpalatable alternative.

The Commissioners’ solution was to establish three procedures that would still privilege Chapter VII-authorised intervention but not forbid action if the Council were paralysed by division: states must at least request Council authorisation before acting; a resolution supporting military intervention must have at least majority support in the Council; and if the veto is used in these instances, recourse can be made to the General Assembly (under the ‘Uniting for Peace’ resolution) or to regional bodies. In addition, to try to counter potential politicisation, the ICISS report recommends that the P5 agree not to veto interventions in cases in which their vital interests are not engaged. In the end, the report warns that if the Security Council ‘fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation—and that the stature and credibility of the United Nations may suffer thereby’.²⁷