Is There a Responsibility to Protect?
On Nov. 30, Hassan Jallow, the chief prosecutor of the International Criminal Tribunal for Rwanda (ICTR), visited Brandeis to deliver the inaugural Distinguished Lecture in International Justice and Human Rights.
In anticipation of this event, this installment of "Ethical Inquiry" explored the political and philosophical issues posed by the legal concept of the “Responsibility to Protect,” also commonly known as “R2P.”
Though R2P was not an established legal concept when the ICTR was created, both the 1994 Rwandan Genocide, and the international community’s lack of response to the massacre, served as an impetus to define and establish this legal concept.
What Is the “Responsibility to Protect” (R2P)?
The Responsibility to Protect entails two levels of responsibility for protecting the lives of civilians. First, the principle says that governments have primary responsibility for the protection of civilian populations within their borders. Second, the principle says that if governments fail to protect their own people, the international community has the responsibility to step in to protect populations from serious harm.
The Responsibility to Protect has three elements:
The responsibility to prevent violence by addressing root causes of internal conflict.
The responsibility to react to cases of compelling human need with appropriate measures.
The responsibility to rebuild, including reconstruction and reconciliation after military intervention.
The use of military intervention under Responsibility to Protect is only for narrow situations in which there is serious and irreparable harm occurring to human beings in the form of ethnic cleansing or large-scale loss of life. This use must have the right intention, be a last resort, use proportional means, and have reasonable prospects. The doctrine of Responsibility to Protect also puts emphasis on the actor, encouraging the use of force to be as multilateral as possible, thus bringing the R2P debate to the halls of the United Nations.
Historical Basis/Legal Precedent
In the wake of World War II and the Holocaust, the international community vowed to never again let such a crisis go unaddressed. Globalization and technology have ensured that we are more aware of what is happening in countries around the world more quickly. Yet the crimes that occurred in Cambodia, Yugoslavia, and Rwanda demonstrated that despite this resolve to prevent another the Holocaust, our awareness of events and moral intuition have not always resulted in effective action.
United Kingdom v. Albania (The “Corfu Channel Case”), 1949
The first case ever heard by the International Court of Justice (ICJ), United Kingdom v. Albania of 1949 (and commonly known as “The Corfu Channel Case”), is frequently referenced in cases involving international intervention.
The Corfu Channel case sets the first international legal precedent for foreign military intervention, even though it did not directly deal with the protection of civilian populations. The conflict began when UK ships passing through the Corfu Channel were fired on from the Albanian coast.
The UK subsequently sent warships through the Channel, testing the Albanians’ willingness to abide by the law protecting innocent passage through the Channel. Two of the ships on this mission encountered mines, and one was destroyed. In response, the UK searched the waters off the Albanian coast for mines, posing the question of legitimate military intervention.
In United Kingdom v. Albania, the court ruled that “the Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law.
Intervention is perhaps still less admissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful States, and might easily lead to perverting the administration of international justice itself. The precedent set by United Kingdom v. Albania has been used by those in opposition to R2P and humanitarian intervention.
Rwandan Genocide, 1994
The support for using force to prevent or end crises has many barriers. In 1994 Kofi Annan, at the time head of the United Nations Peacekeeping Operation, received information from Gen. Romeo Dallaire, the U.N.'s force commander in Rwanda, that Hutu militias "could kill up to 1,000" Tutsis "in 20 minutes."
Dallaire’s plea for military power to protect civilians was made secondary, however, to the U.N. principle of impartiality. More than 800,000 Rwandans were subsequently killed in the Rwandan genocide. ''We must and we do acknowledge that the world failed Rwanda at that time of evil,'' Annan later said. ''The international community and the United Nations could not muster the political will to confront it. The world must deeply repent this failure.'' ("Annan Given Cold Shoulder By Officials In Rwanda," by James C. McKinley Jr., New York Times, 5/8/98)
Kenneth L. Cain, who served in U.N. peacekeeping operations in Somalia, Rwanda, Haiti and Liberia, criticized Annan’s leadership in Rwanda and Bosnia in a 2004 Wall Street Journal article, suggesting that the United Nations failed to protect the people of these nations in their time of need.
Even in cases like Rwanda in which the international community regrets inaction, international legal precedent suggests a concern for protecting the sovereignty of weaker states from the actions of more powerful states, which may be prone to abusing any opportunity for intervention. This concern has encouraged establishing significant obstacles to intervention.
Developing a Doctrine
In A Philosophy of International Law (1998), Fernando Tesón argues, as R2P does, that states are part of a dual obligation. According to Tesón, our moral and governing principles require us to never treat others as means to an end. Because “states are artificial creations to serve human needs,” he argues that they also “must embody and incorporate a formula of respect for persons — a bill of rights.” The notion that states derive rights from those who are members means that state governments are not de facto meritorious of political sovereignty. Those that violate the most basic human rights standards do not meet qualifications for protection from interference.
The Constitutive Act of the African Union, adopted July 11, 2000, stipulates that the Union reserves the right, “to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity.” Despite this, many African Union countries have been unwilling to support or assist the International Criminal Court’s effort to prosecute Sudan’s President, Omar al-Bashir, for war crimes and crimes against humanity in Darfur.
In 2001 the concept of R2P, entailing foreign intervention when governments are unable or unwilling to protect their populations from genocide, was constructed to respond to what was deemed international failure to stop genocide in Rwanda, Bosnia and Herzegovina, and Kosovo.
That year, the crises of the 1990s led the International Commission on Intervention and State Sovereignty (ICISS) to publish the first call for a Responsibility to Protect in 2001. “The Responsibility to Protect” defined R2P as the responsibility of a state to protect those within its borders from serious harm, and an international responsibility when that government is unable or unwilling to fulfill its own responsibilities. It also attempted to balance rights of humanitarian intervention with those of state sovereignty.
The drafters of R2P focus on the notion that the political rights of sovereignty entail a certain governmental responsibility to protect citizens from mass rape and murder. The ICISS report outlines a Responsibility to Protect doctrine stating that when there is “large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or large scale ‘ethnic cleansing,’ actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape,” there is just cause for outside actors to militarily intervene.
In a 2002 issue of Foreign Affairs, Gareth Evans, former Australian Foreign Minister and co-chair of the International Commission on Intervention and State Sovereignty, outlines the dual responsibility of states created by R2P: governments have a responsibility to protect the basic human rights of their citizens, but if sovereign governments fail this responsibility, other governments may take action in extreme cases.
According to Evans, the evolution from humanitarian intervention to R2P involves required precautionary steps creating a narrow avenue for intervention. R2P requires that actors have “right intention,” using force as a “last resort,” and use “proportional means” with “reasonable prospects.” Evans also authored a 2008 book, "The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All," which responds to critics of R2P by outlining the responsibility it places on those who intervene.
United Nations Resolution
In September 2005, during the 60th session of the UN General Assembly, 191 heads of state and government representatives unanimously endorsed a resolution supporting the Responsibility to Protect doctrine. Responsibility to protect and how to implement it has since become immensely controversial in the international community.
The Current Debate
In recent months the unanimous support of R2P in the United Nations from 2005 has begun to splinter. In July 2009, the sitting President of the General Assembly Miguel d’Escoto Brockmann, who views the doctrine of Responsibility to Protect as an excuse for stronger countries to intervene in others, reopened the debate on R2P in the absence of Secretary-General Ban Ki-moon.
In “Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?” (The American Journal of International Law, Vol. 101, No. 1, 2007; login may be required), Carsten Stahn, Director of the Grotius Centre for International Legal Studies, examines why the concept of R2P began losing support despite the fact that it was initially so successful, arguing that the doctrine lent itself to “be interpreted by different actors in different ways, and partly as ‘old wine in new bottles.’
Four outside commentators, including U.S. scholar Noam Chomsky and Kenyan novelist Ngugi wa Thiong'o, were invited to open discussion on R2P in the General Assembly. One of these opening speakers, Belgian Jean Bricmont, author of Humanitarian Imperialism (2006), argued that R2P, like humanitarian intervention, would be manipulated by those with political power.
Bricmont contrasted the American and British claims of humanitarian intervention in Vietnam or Iraq with the Western opposition to Russia’s similar claims in the Georgian provinces of South Ossetia and Abkhazia.
As in the Corfu Channel case, he argues that, "national sovereignty is a partial protection of weak states against strong ones. Nobody expects Bangladesh to interfere in the internal affairs of the United States to force it to reduce its CO2 emissions because of the catastrophic human consequences that the latter may have on Bangladesh. The interference is always unilateral.” (Read Bricmont’s opening speech.)
In his remarks, Noam Chomsky, professor emeritus of linguistics at MIT, argued that, “there is a good reason why ‘the right of humanitarian intervention’ has been hotly contested, in substantial part along North-South lines, while R2P was affirmed — more accurately reaffirmed — by consensus at the 2005 Summit. The reason is that the Summit acceptance of R2P rhetoric adds nothing substantially new.” Chomsky argues that to some, the implementation of R2P seemed to narrow the rights of military intervention to specific examples of moral extremes. “In substance, R2P as formulated at the South Summit is a subcase of the ‘right of humanitarian intervention,’ omitting the part that has been contested: the right to use force without Security Council authorization.”
There was an ongoing conversation in "Foreign Policy in Focus" in August 2009 on this issue between writer Ian Williams and Chomsky.
In his remarks at the United Nations, Kenyan novelist Ngugi wa Thiong'o noted that the importance of R2P must not be weakened by the tendency of Western countries to ignore their crimes. He argues that, “terms like the International Community have often been too narrowly evoked to make it sound as if the West is the gatekeeper who determines who is to be allowed into that community and who is to be outlawed.” As an example, he points out “in Africa, Patrick Lumumba of the Congo was killed with the eyes of the United Nations forces he had invited, looking the other way.”
In Gareth Evans’ remarks to the General Assembly in July 2009, he argues that humanitarian intervention and R2P are critically distinct, and that R2P can salvage some of the failures of humanitarian intervention by making military intervention an absolutely last resort, of which there is no right but in a few cases:
“The issue is not the 'right' of big states to do anything, including throwing their weight around militarily, but the 'responsibility’ of all states to protect their own people from atrocity crimes, and to assist others to do so by all appropriate means. The core responsibility is that of the individual sovereign state itself, and it is only if it is unable or unwilling to do so that the question arises of other states' responsibility to assist or engage in some way. The core theme is not intervention but protection: look at each issue as it arises from the perspective of the victims, the men being killed or about to be killed, the women being raped or about to be raped, the children dying or about to die of starvation; and look at the responsibility in question as being above all a responsibility to prevent.”
Responsibility to Protect and Humanitarian Intervention: Is There a Difference?
Is there a difference between the responsibility to protect and humanitarian intervention? The answer is different depending on if you believe that there is a responsibility to protect.
Those who oppose R2P, such as Bricmont and Chomsky, claim that it is a new branding of what we already have: a subjective interpretation of human rights violations that allows powerful countries to act unilaterally to violate the sovereignty of less powerful nations.
Supporters of planned standards for intervention contend that it is an important concept for the protection of innocents around the world. In the absence of an agreed-upon doctrine, they argue, atrocities will take place unhindered, while those who might intervene are forced to choose between acting alone or in contravention of prevailing law, or in coalition with others still absent the guidance of well-considered guidelines.
In “The Argument about Humanitarian Intervention,” appearing in Ethics of Humanitarian Interventions, (Georg Meggle Ed., 2004), philosopher Dr. Michael Walzer (Brandeis ’56) of the Princeton Institute for Advanced Study argues that infringements of political sovereignty, particularly by unilateral actors, actually decrease when international organizations like the United Nations to plan to intervene in specific type of cases, and ultimately follow through on those promises.
Walzer argues that when the “common conscience” is shocked, anyone can act, even if unilaterally. While collective decisions and action do not prevent unilateral decision-making, it does minimize it. Thus, according to Walzer, those most concerned about protecting sovereignty should support creating specific criteria and plans for intervention, which would make it more difficult for others to act unilaterally in violation of those standards and clarify the line between legal and illegal intervention.
Early this year, U.N. Secretary-General Ban Ki-moon published a paper outlining the implementation of R2P. He notes that implementation must have three pillars: the protection responsibilities of the state, international assistance and capacity-building, and timely and decisive response. He also recommends that nations use the principle of R2P to begin to develop relationships and help to build infrastructure in order for states to fulfill R2P without the help of outside actors.
The International Coalition for the Responsibility to Protect is a voluntary coalition of non-governmental organizations around the world to strengthen consensus for and understanding of R2P while developing capacities to prevent and halt genocide, including in state-specific situations. Their website includes publications on R2P as well as synopses on specific situations in which R2P might be used, including Darfur, Burma, Sri Lanka and Democratic Republic of the Congo.
The Future of R2P
At present it is unclear how U.N. member states will deal with R2P, in word and in deed. This is a moment at which it could become enshrined in international law and utilized as a key component of international diplomacy and action, or possibly declared but generally ignored.