UN Debates the Responsibility to Protect

By Katherine Iliopoulos

The 1990s were marred by atrocity, indifference and inaction. Although the world witnessed the end of apartheid in South Africa, it looked on as genocide tore apart Rwanda. Atrocities in the Balkans, Sierra Leone and East Timor shocked the collective conscience.

The principal international action taken in the earlier part of the decade was the establishment of the two ad hoc tribunals for the former Yugoslavia and Rwanda.  Later, limited interventions were undertaken in some of these situations: most notably over Kosovo, where NATO launched a military campaign against Serbia to halt the oppression of Kosovar Albanians.  By the end of the decade,  then-UN Secretary-General Kofi Annan threw his weight behind the idea that the world should take responsibility if nations fail to protect their own population.

Thus the theoretical notion of the Responsibility to Protect, or R2P, first formulated by Gareth Evans and the International Commission on Intervention and State Sovereignty (ICISS) gained greater recognition in the wider international community. The 2005 World Summit saw all 192 UN Member States endorse the idea, at a time when the conflict in Darfur had already been claiming thousands of lives for two years.

The concept of R2P as adopted at the World Summit - the Summit Outcome - incorporated the following key points:

First, each state acknowledged its responsibility to protect its own citizens from genocide, ethnic cleansing, war crimes and crimes against humanity; second, there would be international assistance to help states uphold their responsibilities through capacity building and to support those under stress before crises and conflicts broke out (Paragraph 138); third, the UN accepted a responsibility to use diplomatic, humanitarian and other peaceful means to protect populations from such atrocities; and finally it declared:

"We are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity". (Paragraph 139)

It is important to emphasise that the provisions of the Summit Outcome are based on already existing legal obligations and do not create new ones. Under treaty-based and customary international law, States have obligations to prevent and punish genocide, war crimes and crimes against humanity. The scope of R2P is confined to the four core crimes, and cannot be extended to cover natural disasters despite the attempt to do so in 2008 relation to the aftermath of Cyclone Nargis in Burma.  Furthermore, R2P is not to be equated with the notion of 'humanitarian intervention', which was characterised by its emphasis on the use of force to alleviate human suffering. This earlier idea was criticised by many states as a charter for powerful countries to interfere in their internal affairs; the “responsibility to protect” doctrine represents an attempt to deal with the problem by shifting the emphasis to states’ responsibility toward their own citizens.

The challenge for the United Nations, as the vehicle for the implementation of R2P, is whether it can operationalise the doctrine and harness the necessary political will for effective action. And the R2P concept, and in particular, the possibility of the use of force, has provoked a debate on the merits of intervention by other states and has given rise to a clash of political principles: how should the international community balance its support for the principle of  sovereignty with  intervention in the name of human security?

It is this very tension that characterised the debate that took place at the UN on July 23, 2009. The UN General Assembly's inaugural thematic debate on the "responsibility to protect" people from genocide or war crimes was convened by the President of the General Assembly Miguel d'Escoto Brockmann of Nicaragua, who echoed the sentiments of some nations, particularly those of the underdeveloped South who are wary of R2P and who see it as a step backwards after all the hard work expended on achieving decolonisation. Experts differed sharply on the issue and failed to reach a consensus as to how R2P would be effectively implemented.

UN Secretary-General Ban Ki-Moon had elaborated on the three pillars of R2P in his Report to the General Assembly of January 2009, "Implementing the Responsibility to Protect", which was discussed during the debate. The first is the 'protection responsibilities of the State', emphasising that the Responsibility to Protect lies first and foremost with the State in relation to its own people. The first pillar reflects the new approach of 'Responsible Sovereignty', a reminder to states that sovereignty implies an obligation to protect its citizens, and it poses a challenge to the traditional conception of state sovereignty - the supreme individual authority over territory - as a 'right'. This 'conditional' sovereignty is supported by Pillar Two, 'International Assistance and capacity building', which lays out a framework of international co-operation to help states meet their obligations towards their populations such as in the fields of human rights and economic governance, which rests on the idea that economic inequality, discrimination and oppression sow the seeds of conflict. These first two pillars comprise the 'prevention' aspect of R2P.

The S-G's report urged states to do more "to sharpen the tools for ending impunity" and cited the complementarity principle of the Rome Statute, whereby national judicial processes are the first line of defence against impunity. D'Escoto, although agreeing in principle with the need for universal acceptance of the International Criminal Court and its relationship to the realisation of R2P goals, argued during the debate that it is unreasonable to insist on universality whilst there is no agreed definition of 'aggression' in the Rome Statute.

D'Escoto, in a pre-debate concept note of July 17 2009, stressed that it is the preventive aspects of R2P that are the most important. He cited the need for a reform of international economic governance. He agreed with Ban's assessment that the Human Rights Council, with its universal periodic review mechanism, can advance human rights and capacity building and therefore prevention. An increased role for the Peacebuilding Commission in helping states to realise their responsibility to protect was undisputed.

Ambassador Maged Abdelaziz of Egypt, who largely supports R2P, spoke on behalf of the Non-Aligned Movement but expressed concern at the functioning of the 'early warning mechanism'. Paragraph 138 of the Summit Outcome includes a pledge on behalf of the international community to "as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability". According to the Secretary-General's 2009 report, such a capability would require: (i) the timely flow to United Nations decision makers of accurate, authoritative, reliable and relevant information about the incitement, preparation or perpetration of the four specified crimes and violations; (ii) the capacity for the United Nations Secretariat to assess that information and to understand the patterns of events properly within the context of local conditions; and (iii) ready access to the office of the Secretary-General. D’Escoto identified the need for a development of the concept before any action could be taken in its name. The S-G will submit to the General Assembly various proposals for implementing improvements in the early warning capability of the UN later this year.

Ambassador Abdelaziz also called upon states to heed the lessons of the African Union experience and to explore possible measures to enhance cooperation between the UN and regional arrangements. The African Union was a pioneer in implementing R2P: five years before the historic 2005 World Summit Outcome Document, African states had already enshrined the principles of the Responsibility to Protect into law. The founding document of the African Union, the Constitutive Act signed by Member States in 2000, defines the core objectives of the Union as the promotion of peace, security and stability and the promotion and protection of “human and people’s rights”. It also identifies the “respect for democratic principles, human rights, the rule of law and good governance”, the “respect for the sanctity of human life” and “condemnation and rejection of impunity” among its core values. Most importantly, in Article 4(h) of the Constitutive Act, AU member states accepted the “right of the Union 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".

When prevention fails, or a state does not meet its obligations, the Third Pillar, the 'Timely and Decisive Response' may be invoked. It is the responsibility of other states to respond collectively with a wide range of tools: pacific measures such as diplomacy and sanctions, and only as a last resort, coercive measures under Chapter VII of the UN Charter, including the use of force. It is undoubtedly the most misunderstood aspect of R2P and the most controversial.

Indeed D'Escoto's concept note focused on the flaws of the Third Pillar, particularly its emphasis on the necessary involvement of the Security Council. It highlighted the legal conundrum presented by a situation whereby a state fails in its responsibility to protect, and therefore breaches its 'state responsibility': the possible countermeasures that can be used against the violating state exclude the use of force. Indeed, the only time that the use of force is permitted is through Security Council authorisation and only then if it deems that there exists a threat to international peace and security. The note then argued that human suffering does not fall within the ambit of a 'threat to international peace and security' and that the use of force is not, and citing the decision of the International Court of Justice in the Nicaragua Case, ought not to be an enforcement mechanism for human rights law and international humanitarian law.

However, it was precisely this idea that was endorsed by the countries of the United Nations in the 2005 World Summit Outcome Document; in this sense, d’Escoto’s note represented an attempt to turn back the clock, appealing to the terms of the UN Charter.

And it bears mentioning that the suggestion that atrocities committed within a single state do not meet the definition of 'a threat to international peace and security' ignores Security Council practice, the wide discretion conferred to it under the Charter in deeming a situation a ‘threat to international peace and security’, and the numerous General Assembly resolutions from the 1960s to the 1990s in relation to the apartheid regime in South Africa. For example, Resolution 1761 (1962) deemed apartheid and the policies enforcing it to be a violation of South Africa's obligations under the UN Charter and a "threat to international peace and security". In 1977, the Security Council imposed an arms embargo on the apartheid state with Resolution 418, "considering that the policies and acts of the South African Government are fraught with danger to international peace and security".

Some argued that R2P's reliance on the Security Council to authorise the use of military force under Chapter VII of the UN Charter renders the application of the principle selective and open to abuse, fearing that it will be used by the strong states against the weak. While proponents of R2P stress that only the UN Security Council can authorise such intervention, the S-G's report mentions the General Assembly's ‘Uniting for Peace’ procedure under Resolution 377. This procedure allows the General Assembly to make "appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security" and authorises military action when supported by an overwhelming majority of UN members.

While this procedure confers a high degree of legitimacy, the difficulty with such recommendations however is that they would not be legally binding.

In a March 2005 report known as the Ezulwini Consensus, the African Union endorsed R2P and recognised the authority of the Security Council to authorise the use of force for the four core R2P crimes but insisted that in such cases regional organizations in areas of proximity to conflicts should be empowered to take action. But at the recent debate, Noam Chomsky warned of the dangers of extending R2P beyond the AU doctrine - as proposed by the 2001 ICISS Report - so that regional organisations could take UN Charter Chapter VIII action in situations where the Security Council rejects a proposal for military intervention, and whereby they would only be obliged to seek 'subsequent' SC authorisation. Chomsky believes that regional blocs will simply assert their area of jurisdiction unilaterally, "opening the door for potential use of R2P as a weapon for imperial intervention at will".

The recent debate did not resolve the enduring dilemma posed by a Security Council deadlock: where it refuses or fails to authorise the relevant military action.

In his 2008 book The Responsibility to Protect, Gareth Evans - who was involved in developing the principle of R2P - proposed an alternative source of legal authority for military intervention, despite in principle being against the idea of finding alternatives to the Security Council as a source of authority. The first is the right of self-defence under Article 51 of the UN Charter: “the right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations”. Far from suggesting that Article 51 is a primary source of legal authority for cross-border military action for the purpose of protecting another country’s citizens, or that it should be used artificially, Evans described it as a potential ‘indirect source’ that could be invoked where the military action taken under the cover of Article 51 does in practice also serve a protective purpose for the people of another country.

Evans also suggested that - in an effort to avoid undermining the prevailing legal order that places the authority of the Security Council at the centre of military action whilst also allowing military intervention where justified - a ‘plea in mitigation’ could be invoked post facto. Suggested by scholar Thomas Franck and others, this would involve the intervening state acknowledging that it has violated international law, whilst also pleading that the action was taken under exceptional and compelling circumstances.

R2P has met with partial success in terms of Security Council action. The doctrine was taken into account to some degree by the Security Council in relation to the Darfur crisis in Resolution 1706 (2006), which recalled the Council's reaffirmation of its commitment to R2P and to principle of civilian protection in Resolution 1674. But it is Kenya which is often cited as one of the first successful instances of R2P in practice, particularly with respect to diplomatic peacemaking, one of the coercive, non-military measures envisaged under the Third Pillar. In 2007 and 2008, contested elections led to the displacement of over 500,000 people amid reports of widespread abuse, rape, and murder, including the death of 30 people who were burned alive inside a church. The African Union took the initiative with mediation efforts, which were eventually led by Kofi Annan and culminated in a power-sharing agreement within two months of the beginning of the crisis, and no other coercive measures needed to be applied. The Security Council subsequently endorsed the efforts of the AU and Annan in a Presidential Statement. But US Ambassador to the UN Susan Rice remarked in June that the 'Responsibility to Protect' was explicitly not part of the debate in the Council, and that she was told that "it was difficult even to build support for a Council vote of confidence in Annan’s mission", highlighting the way in which invoking R2P can be politically charged.

Many have linked the success of R2P in practice to the reform of the Security Council, including Kofi Annan, and also Gareth Evans, who said in his pre-debate speech that if SC does not behave appropriately in relation to the authorisation for the use of force, "the task is not to try and circumvent the SC, but to make it work better".

The same issue was addressed in the earlier report of the ICISS: it said that if the SC fails to take action, an individual state or a coalition will step in, as occurred with the NATO bombing of Serbia in 1999. If the intervening state does so with legitimacy and success, then this would have “enduringly serious consequences for the stature and credibility of the UN itself”.

In a similar vein, and in an effort to compel the Security Council to act responsibly, Ban Ki-Moon singled out the P-5, who "bear particular responsibility because of the privileges of tenure and the veto power they have been granted under the Charter". Ban sent a clear message, urging them “to refrain from employing or threatening to employ the veto in situations of manifest failure to meet obligations relating to the responsibility to protect”.

It is apparent that much progress needs to be made before R2P can be successfully implemented, but a reform of the Security Council appears far from likely. “We must simply hope”, as Gareth Evans put it, “that over time … the Security Council will work better than it has done”.

Related Chapters from The Crimes of War 2.0: What the Public Should Know:

Humanitarian Intervention

Related Links:

Responsibility to Protect: An Idea Whose Time Has Come - And Gone?

The Economist

July 23, 2009

'Making War to Bring Peace'

By Noam Chomsky

In These Times, August 3, 2009

Statements of Participating Delegations at the Thematic Debate, 23 July 2009

Eye on the UN

Core R2P Documents

International Coalition for the Responsibility to Protect

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