The “Responsibility While Protecting”: A Recent Twist in the Evolution of the “Responsibility to Protect”




© Springer International Publishing Switzerland 2015
Norman Weiß and Jean-Marc Thouvenin (eds.)The Influence of Human Rights on International Law10.1007/978-3-319-12021-8_7


7. The “Responsibility While Protecting”: A Recent Twist in the Evolution of the “Responsibility to Protect”



Andreas S. Kolb 


(1)
Global Governance Institute, Brussels, Belgium

 



 

Andreas S. Kolb




7.1 Introduction


The “responsibility to protect” (R2P) offers an opportunity to follow in real time the making of a new framework on human protection. Yet the current status of this process and its future prospects remain the subjects of debate. Its potential outcomes range from a mere consensus on abstract moral precepts via the establishment of political guidelines to the emergence of legally binding norms or a new interpretation of existing law. The evolution of R2P has been facilitated by what has been identified as “concerted norm entrepreneurship by a variety of actors.”1 In 2011, Brazil appeared as a new actor on this stage when it proposed the “responsibility while protecting” (RwP), a concept that had the potential both to foster and to undermine the existing consensus on R2P. The purpose of the present contribution is to assess the direction that the debate on R2P has taken following the RwP initiative and to indicate which impact it may have on international law, including international human rights law.


7.2 The “Responsibility to Protect (R2P)” as a New Framework for a Formerly Divisive Issue


The notion of the “responsibility to protect” emerged under the impression of the mass atrocities that had been committed in Rwanda, Srebrenica, and Kosovo during the 1990s. Rwanda reminds the international community of its inaction in the face of a genocide that claimed an estimated 800,000 lives.2 The intervention of the North Atlantic Treaty Organization (NATO) to prevent ethnic cleansing in Kosovo without authorization from the Security Council, by contrast, raised major controversies over the legitimacy and lawfulness of military intervention for humanitarian purposes in a sovereign state.3 This dilemma has traditionally been captured by the notion of the so-called humanitarian intervention, which, in a narrow sense, refers to the use of armed force by one or more states in another state without the consent of its authorities and with the purpose of protecting people from gross and systematic human rights violations.4


7.2.1 The Legal Debate on Humanitarian Intervention


The lawfulness of humanitarian intervention was controversial already in times in which international law was still perceived a matter of natural law.5 In the era of the United Nations, it raises hard questions with a view to the principles of state sovereignty and non-intervention, as well as to the prohibition of the use of force in international relations.6 At the same time, the United Nations were created not only for the maintenance of international peace and security but also to encourage respect for human rights.7

In approaching the “humanitarian intervention dilemma” from a legal perspective, important distinctions must be made. To begin with, humanitarian intervention may be undertaken with a mandate from the UN Security Council, as “collective humanitarian intervention,” or without such prior approval, as “unilateral humanitarian intervention.”8 The proposition that the Security Council had the power under the UN Charter to authorize military intervention for the prevention of massive human rights violations had already received strong support during the 1990s.9 The lawfulness of unilateral humanitarian intervention, by contrast, remained contested.10

Another distinction pertains to the permissive or prescriptive effect of the relevant international norms.11 Traditionally, the protection of populations from mass atrocity crimes had primarily been discussed as a question of whether international law established a “right of humanitarian intervention,” i.e., whether it permitted outside military intervention. Only rarely had it been suggested that third states not only held rights but even bore duties to address mass atrocity crimes beyond their own jurisdiction.12


7.2.2 The “Responsibility to Protect (R2P)” and the Creation of a New Framework


Following the Kosovo conflict, several actors undertook to tackle the lack of consensus on the idea of humanitarian intervention. UN Secretary-General Kofi Annan provided the impetus when he asked how the international community should respond to situations such as in Rwanda or Srebrenica if humanitarian intervention was indeed “an unacceptable assault on sovereignty,” like its critics claimed.13 The Government of Canada responded by establishing the International Commission on Intervention and State Sovereignty (ICISS) to facilitate an international consensus on the question. In its final report, the ICISS coined the notion of the “responsibility to protect” and proposed the contents that it could embody.14

R2P made several important contributions to overcoming the divisiveness of the debate. To begin with, it shifted the perspective, focusing on the needs of imperilled populations rather than on rights of states.15 A “responsibility to protect” was hence said to lie primarily with the state concerned but as a fallback responsibility also with the international community.16 Importantly, it described a continuum of responsibilities encompassing prevention, reaction, and rebuilding.17 Within this broader framework, military intervention was to be the last resort only, subject to additional precautionary principles demanding that it be a proportional means, primarily motivated by the purpose of averting human suffering, and had a reasonable chance of success.18 The right authority to legitimate military intervention for human protection purposes was primarily attributed to the Security Council, although the ICISS also mentioned the possibilities of the General Assembly considering a situation under the “Uniting for Peace” procedure or regional organizations taking action within their jurisdiction.19

In 2005, a carefully nuanced “responsibility to protect” framework was endorsed by the heads of state and government at the UN World Summit.20 According to the model proposed by Secretary-General Ban, R2P as agreed at the World Summit rests on three pillars: the protection responsibilities of states for their own populations (Pillar I), the commitment of the international community to assist states in meeting these obligations (Pillar II), and the responsibility of UN member states “to respond collectively in a timely and decisive manner when a State is manifestly failing to provide such protection” (Pillar III).21 The collective responsibility under Pillar III includes primarily a responsibility to use peaceful means through the United Nations. At the same time, the UN members also expressed their preparedness to take timely and decisive action through the Security Council, including under Chapter VII of the UN Charter, “on a case-by-case basis” if peaceful means were inadequate and the domestic authorities were “manifestly failing” to protect their populations from genocide, war crimes, crimes against humanity, and ethnic cleansing.22 No mention was made, however, of the precautionary principles on the use of force that had been proposed by the ICISS.

Over the following years, R2P was further consolidated in the form that it had been given at the World Summit. The Security Council referred on numerous occasions directly or indirectly to the responsibility to protect,23 the General Assembly held a formal debate on the topic,24 and yearly reports by Secretary-General Ban25 as well as subsequent informal interactive dialogues of the General Assembly26 addressed different aspects of R2P.


7.3 R2P at a Crossroads and the Brazilian Initiative on the “Responsibility While Protecting”


In 2011, the evolution of R2P reached a crossroads. In March, the Security Council mentioned the concept in resolutions that authorized military action for the protection of civilians in Libya27 and Côte d’Ivoire.28 Initially, both cases could have served as examples of swift collective action to protect civilian populations, yet especially the NATO air campaign in Libya drew heavy criticism by some states for the manner in which it implemented the Security Council’s mandate. At the same time, the Security Council proved unable to reach consensus on measures even below the threshold of military intervention, while Syria slowly descended into civil war.

At this crucial moment for R2P, the Brazilian government emerged as a new norm entrepreneur. At the opening of the general debate of the UN General Assembly’s 66th session, on 21 September 2011, Brazil’s President Dilma Rousseff expressed the sentiment that while much was being said about the responsibility to protect, little was said about “responsibility in protecting.”29 On the occasion of the Security Council’s next debate on the protection of civilians, on 9 November 2011, Brazil followed up on this statement30 and circulated a concept note that proposed various elements for the development and promotion of a concept now labelled the “responsibility while protecting.”31

The concept note stressed the primacy of prevention and suggested a number of principles to constrain recourse to coercive measures and, in particular, to armed force. It reiterated the last resort character of military intervention and the principle of proportionality.32 More specifically, and importantly, it read into R2P a “chronological sequence” between its three pillars and demanded that all peaceful means had to be exhausted before armed force could be applied.33 Brazil further suggested that distinctions had to be made between the protection of civilians and regime change as well as between the collective responsibility to protect and collective security.34 The concept note laid emphasis on the role of the Security Council, which not only had the primary authority to legitimate intervention but also defined and thereby limited the objectives for which it was to be undertaken.35 Intervention was to be carried out strictly in accordance with the mandate given by the Security Council and with international law.36 Enhanced monitoring and assessment procedures were to ensure that the Security Council had continuing oversight of the manner in which its use of force mandates were interpreted and implemented.37 In exceptional circumstances, the concept note recognized that the UN General Assembly, acting pursuant to the “Uniting for peace” resolution 377 (V), could legitimate intervention.38


7.4 The Impact of the RwP Initiative on the R2P Discourse


For R2P, the RwP initiative with its focus on military intervention could have dangerously shifted the parameters of the international debate. While some elements of the concept note could have complemented the R2P framework that had been agreed at the World Summit, others, such as the idea of a chronological sequencing between the different pillars and of a mandatory exhaustion of all peaceful means, had the potential to reopen the consensus that had been reached on R2P.39 Recent debates in the United Nations suggest, however, that the commitment of the UN membership to R2P is firm, while RwP is being refined so as to complement rather than renegotiate the agreed R2P framework.


7.4.1 The Informal Debate on RwP in February 2012: Mixed Reactions to the Concept Paper


To foster discussion on the RwP initiative, the Brazilian government initiated an informal debate at UN headquarters in New York on 21 February 2011. The echo that its concept paper received at the debate was multifaceted.40 While the initiative as such and its underlying principles received significant support, the debate revealed an overwhelming concern for preserving the consensus on R2P that had been reached at the 2005 World Summit.41

The only proposition that appears to have generated agreement was the emphasis on prevention as the best policy of protection. Much support emerged also for the proposed guidelines on the use of force in principle, including the need to balance the consequences of military action, the required proportionality of intervention, and especially its last resort character.42 Yet, while these principles as such were not questioned, Denmark cautioned that establishing a set of criteria for the use of force was not the right focus at the time.43

Opposition arose specifically to those elements of the proposed RwP concept that would have conflicted with the R2P framework. In particular, the notion of a strict chronological sequencing of the three pillars and the proposition that all peaceful means had to be exhausted before forceful measures could be taken were explicitly rejected by some states.44 Others, more sympathetic to the Brazilian initiative, attempted to rephrase the proposed sequencing in a way to avoid conflict with the agreed R2P framework.45

The proposed distinction between collective responsibility and collective security received little attention while being explicitly refuted by the Netherlands. Lukewarm at best was the response to the proposed enhanced role of the Security Council in monitoring military operations. While South Africa and Australia noted that additional military briefings or regular updates of the Security Council could improve Security Council oversight of the way in which its mandates were implemented, Australia and the Netherlands objected at the same time to “micro-management” of military operations by the Security Council, which could reduce the willingness of member states to commit themselves to the implementation of its mandates.46


7.4.2 The General Assembly’s Informal Interactive Dialogue on the Third Pillar: Towards Reconciliation Between RwP and R2P


The interactive dialogue on the Secretary-General’s report on the third pillar of R2P, which was held by the General Assembly on 5 September 2012, confirmed these trends.47 Many delegations referred to the RwP initiative either explicitly48 or by addressing some of the principles proposed in the Brazilian concept paper.49 On its face, the reception of RwP was again positive, and yet support for its substantive propositions grew scarcer the more specific they became.

While many statements commended the Brazilian initiative, most of them addressed RwP in a very abstract manner and in essence acknowledged the importance of the debate that it had prompted.50 It was also clear that RwP was not to revise the compromise that had been agreed at the 2005 World Summit but only to complement it.51 Many statements moreover revealed an attempt to deflect the spotlight that RwP had placed on the coercive and especially the military component of R2P, underlining instead that the concept and also specifically its third pillar comprised a broad range of tools.52

Beyond dispute were again the importance of prevention as the best policy53

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