Introduction
The Responsibility to Protect
represents a very new idea within the field of world politics, having first
gained international prominence in the early 2000s. This essay will offer an
in-depth analysis of the Responsibility to Protect report released by
the International Commission on Intervention and State Sovereignty. Firstly,
the main principles of the doctrine will be briefly outlined, before moving on
to a critical investigation into those principles. The argument will be made
that R2P is a far less revolutionary concept than its authors might portray it
to be, and it disappointingly fails to make significant headway in addressing
the obstacles blocking the path to facilitating humanitarian intervention in
clear cases of human rights abuses. The failure to address the conflict between
humanitarian law and human rights law in the international system will be
addressed first, before moving on to discuss how R2P does not represent a
radical shift from nation-state security to human security. Finally, it will be
argued that R2P essentially skims the pressing issue of greatly-needed Security
Council reform, and its proposed reliance on a Security Council with
veto-wielding permanent members means that the same inconsistent application of
humanitarian intervention laws would continue under the R2P framework.
The key tenets
Before moving onto analyze the
strengths and failings of the R2P doctrine, it is essential to clearly
establish the key guiding tenets of the framework. The very most fundamental
point made in R2P is that state sovereignty is conditional upon the
nation-state addressing its duty to respect the human rights of its citizens:
‘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.[1]’
When this occurs, other states have a responsibility to take action;
the ICISS describes three lines of responsibility. Firstly, the responsibility
to prevent; secondly, the responsibility to react; and thirdly, the
responsibility to rebuild. The document also presents, based on the principles
of Just War, several criteria by which to establish whether or not intervention
is warranted in a particular situation, attempting to address the ambiguity in
Chapter VII of the UN Charter over what exactly constitutes a ‘threat to the
peace.’ A critical discussion of some of the mechanisms outlined in the report
follows.
Reproduces the same legal
contradictions
The Responsibility to Protect
(R2P) report of the International Commission on Intervention and State
Sovereignty (ICISS), although noble in its quest to resolve the sovereignty
versus intervention debate by changing the discursive parameters, can be
considered a failure. Its explicit aim is to move towards resolving the
‘sovereignty versus intervention debate’ by changing the discursive parameters
at play. However, the Report is full of contradictions and assertions that
serve to merely reproduce the same legal issues of the ‘sovereignty versus
intervention’ debate. It makes no progress in solving the legal debate, and
focuses merely on ‘legitimacy.’
Banakar argues that R2P is a ‘revolutionary development[2]’
in the sovereignty-intervention legal debate. His argument is based on the
Report’s assertion that ‘sovereignty implies a dual responsibility; externally
to respect the sovereignty of states, and internally, to respect the dignity
and basic rights of all people within the state.[3]’
Subscribing to the R2P doctrine, Teson argues that ‘sovereignty derives from a
state’s responsibility to protect its citizens, and when a state fails in its
duty, it loses its sovereign rights.[4]’
This is intended to address the contradiction in the U.N. Charter between
Article 2.7, which ‘prohibits the United Nations itself from interfering in the
domestic affairs of its member states’, and Chapter VII, which permits such
interference so as to nullify a ‘threat to the peace’ via a Security Council
Resolution.
As such, when the Security Council is unable to pass a resolution as
in the case of Syria (see above: O’Bryan, Tom, ‘Security Council & Military
Intervention’), a state of impasse and inaction develops, with no action being
taken to resolve the issue. Teital argues this is due to the fundamental legal
tension currently at play in the international system, whereby the statist
model of law based on borders and nationality is ‘now giving way to alternative
view of the meaning of global order…The merger between humanitarian law and
human rights gives rise to a complicated and somewhat contradictory legal
regime that challenges the very basis of…the international rule of law.[5]’
There is a clear
basis to intervene in Syria under the Just Law criteria (humanitarian law) laid
out in the R2P report, where there is undeniable ‘large scale loss of
life…which is the product of deliberate state action.[6]’
States are thus obliged to intervene, breaking the inviolability of Syria’s
sovereignty, to ensure that the human rights of the Syrian citizens are
protected consistent with the U.N. Convention on Human Rights. However, since
intervention under R2P is still dependent on a United Nations Security Council
Resolution, it is highly feasible that a situation identical to the present
impasse on Syria could happen again. Although clearer to establish what
constitutes a ‘threat to the peace’ under Article 2.7 in the abstract, R2P does
not address the conflict playing out in the Security Council between
humanitarian law and human rights conflict. As such, R2P is not any more likely
to better protect human rights. The weakness in relying on the Security Council
will be discussed at greater depth in a later stage of this essay.
Human security remains
marginalized by national security
The Responsibility to Protect
framework also entrenches the current focus on nation state security, as
opposed to human security. While the human rights of individuals are the
concern of R2P, they are posited within the conceptual framework of
nation-states. Under R2P, states remain the only ‘subjects’ of international
law; the U.N. Charter speaks to the rights of ‘states’, and while R2P does
focus on individuals, it is only within the context of nation-states. As such,
individuals are marginalized from the international humanitarian legal process,
even though they are the victim of human rights abuses under human rights law.
Under R2P, it is still only nation-states who have the ability to bring a
resolution legitimizing intervention with the purpose of protecting human
rights to the Security Council. As Meurant argues, ‘each state has a locus
standi to protect against violations of the [human rights] Conventions and to
demand their cessation.[7]’
Citizens who are having their human rights abused are largely
reliant on an external third-party state, under the principle of erga omnes, taking up the
cause of these abuses in the United Nations. This is one of the fundamental
reasons why nation-states could still face impunity for human rights abuses
under R2P. The international legal system, crafted in a context of inter-nation
war, has failed to adapt to the modern-day context of intra-state war. States
are conceived of as the ‘victims’ of inter-state war, and logically the
international legal system therefore gives nation-states the ability to redress
their grievances through bring their case to the United Nations.
Contrastingly,
those citizens who are the ‘victims’, as defined by R2P, of violence by the
state are completely marginalized from the international legal process and are
unable to bring their grievance to the ultimate arbiter of interventions; the
United Nations Security Council. For example, while Kuwait was able to bring up
Iraq’s illegal invasion of its territory in 1990, the Syrian people have no
course to raise the human rights abuses being committed against them by Bashar
al-Assad.
Furthermore, the
states who usually exercise the prerogative to raise concern about ‘human
rights’ are typically those of the ‘West.’ Falk criticizes the hypocrisy of
states ‘preaching’ about human rights in other countries when such abuses do
occur in those Western countries themselves: ‘the West feels the emphasis is on
human rights as an instrument of foreign policy, not as a corrective to
domestic shortcomings…this self-righteous diplomacy is producing a new crusader
mentality that underpins the advocacy of humanitarian intervention.[8]’
For example, it is not inconceivable that the citizens of countries where the
United States of America condemns human rights abuses resent this supposedly
‘arrogant’ stance from a country committing human rights violations in
Guantanamo Bay, and invading civil liberties with the PARTIOT Act. While
states, rather than the victimized people themselves, are the only body with
the legal authority to relay their concerns in the Security Council and submit
a resolution, then the entire legitimacy of intervention could be undermined –
particularly if those states are not shining beacons of human rights
themselves.
Until this
fundamental inequality in international law is addressed, there is little to prevent
continued human rights abuses. The Responsibility to Protect framework does
very little to change the focus of international law from nation-state security
to human security.
Failure to address the
flawed Security Council
The most fundamental flaw of
the Reponsibility to Protect report is its inadequate response to the issue of
the inconsistency of Security Council Resolutions mandating humanitarian
interventions. As has been established in the previous essay (see above:
O’Bryan, Tom, ‘Security Council & Military Intervention’), the Security
Council’s decision-making is inherently political thanks to the veto-wielding
power of the Permanent 5. If intervention is opposed by one of the P5, then
human rights abuses will continue. R2P still accepts that the Security Council
is the crucial arbiter for humanitarian intervention, with Bellamy pointing out
that ‘R2P insists that the buck stops with the UN Security Council,[9]’
with Thaukar and Weiss concurring, saying that ‘Security Council authorization
forms the core of the responsibility to protect.[10]’
This is only problematic due to the nature of the veto powers of the
Permanent 5, which is one of the primary obstacles to establishing an objective
decision-making basis regarding intervention. As such, one would expect
addressing this issue to be front and center at the mind of the ICISS. However,
the solution offered appears to be hopelessly optimistic. The R2P report offers
the following remedy to the problem of arbitrary use of the veto: ‘the
permanent five members of the Security Council should agree not to apply their
veto power in matters where their vital state interests are not involved, to
obstruct the passage of resolutions authorizing military intervention for human
protection purposes for which there is otherwise majority support.[11]’
The first problem with this is that the very definition of ‘vital
state interests’ is highly ambiguous, debatably of equal ambiguity as the
operative clause of Chapter VII of ‘threat to the peace’, as such reproducing the
very same problems of ambiguity all over again and resolving very little.
Secondly, as already outlined, this is for the moment a hopelessly optimistic
solution. As Roberts points out, ‘the Security Council members have shown no
enthusiasm for tying themselves to the ICISS’s proposed wording or anything
like it.[12]’ This is
highly problematic, and without resolving this issue, the R2P framework
essentially reproduces the same fundamental problems of politicization,
selectivity and inconsistency in interventions in the Security Council. Without
a resolution of this issue, the entirety of the other solutions offered by the
ICISS effectively lose their value.
Conclusion
The Responsibility to Protect
represents a much-needed drive to change the structure of international affairs
so as to remove the obstacles currently blocking an objective and clear basis
from which interventions could be justified. However, R2P fails completely to
this end. The same ambiguities of terminology, legal contradictions, and political
obstacles inherent in the U.N. Charter are reproduced in the R2P report
although alternatively phrased. Until human beings become subjects under
international law, and there is fundamental reform of the Security Council and
the veto power of the P5, then humanitarian interventions will unfortunately
remain the politicized and inconsistently-applied phenomena they are today
regardless of the ICISS’s best efforts to the contrary.
[1] International Commission on Intervention and State
Sovereignty, ‘The Responsibility to Protect’, (Ottawa: International
Development Research Center, 2001), p. xi
[2] Banakar, Reza, ‘Rights in Context: Law and Justice in
Late Modern Society’, (Surrey: Ashgate Publishing Limited, 2010), p. 268
[3] International Commission on Intervention and State
Sovereignty, ‘The Responsibility to Protect’, (Ottawa: International
Development Research Center, 2001), p. 8
[4] Teson, F. R., ‘The Liberal Case for
Humanitarian Intervention’, from Holzgrefe, J. L. & Owen, Robert (eds.),
‘Humanitarian Intervention: Ethical, Legal and Political Dilemmas’, (Cambridge:
Cambridge University Press, 2003), p. 93
[5] Teitel, Ruti G., ‘Transitional Justice’, (Oxford:
Oxford University Press, 2002), p. 362
[6] International Commission on Intervention and State
Sovereignty, ‘The Responsibility to Protect’, (Ottawa: International
Development Research Center, 2001), p. 14
[7] Meurant, Jacques, ‘Inter Arma Caritas: Evolution and
Nature of International Humanitarian Law’, Journal of Peace Research, Vol. 24,
No. 3, (Sage Puglications, 1987), p. 246
[8] Falk, Richard A., ‘Human Rights Horizons: The Pursuit
of Justice in a Globalizing World’, (New York: Routledge Publishers, 2000), p.
91
[9] Bellamy, ‘Global Politics and the Responsibility to
Protect: Words to Deeds’, (New York: Routledge Publishers, 2011), p. 162
[10] Thakur, Ramesh & Weiss, Thomas G., ‘Global
Governance and the UN: An Unfinished Journey’, (Indiana: Indiana University
Press, 2010), p. 321
[11] International Commission on Intervention and State
Sovereignty, ‘The Responsibility to Protect’, (Ottawa: International
Development Research Center, 2001), p. 9
[12] Roberts, Sir Adam, ‘The United Nations and Humanitarian
Intervention’, from Welsh, Jennifer (ed.), ‘Humanitarian Intervention and
International Relations’ (Oxford: Oxford University Press, 2003), p. 145
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