Dr. Abiodun Williams on the Responsibility to ProtectAugust 4, 2011 # 4:40 pm # Armed Conflict, Foreign Policy, Human Rights, International Law, International Organizations # No Comment
From some time now, I have has reservations about the way in which the “Responsibility to Protect” has been understood. My reservations flow from a concern that the concept, which was endorsed at the 2005 UN World Summit, is sometimes misunderstood as a legal concept. Indeed, in a post in July of 2009, I was critical of a claim that R2P “provides the Security Council a legal endrun around traditional arguments of state sovereignty in cases where a country is unwilling or unable to prevent mass atrocities from being visited upon its citizens.”
In that post, I noted:
Anything agreed to by UN members in 2005 was not intended to in any way alter the United Nations Charter provisions on the recourse to force. Indeed, paragraph 139 of the 2005 World Summit Outcome Document which “adopted” the concept of R2P specifically provides:
The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, 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 manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out. (emphasis added)
In short, I cannot see how R2P provides a “legal endrun” or creates additional legal authority that was not already present in the Charter.
In a post in today’s e-International Relations, my dear friend, Dr. Abiodun Williams, has an outstanding post that sets the broader context for R2P and does not fall into the trap of claiming legal authority for the concept, but recognizes its potential normative influence. Dr. Williams, who is Vice President of the Center for Conflict Analysis and Prevention at the United States Institute for Peace, explains:
Innovative ideas have played an important role in steering international responses to global threats and challenges, but no concept has moved faster in the area of global norms than the “Responsibility to Protect” (R2P). At the 2005 UN World Summit, world leaders unanimously accepted their responsibility to protect their own populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. They also expressed their readiness to take collective action, in a timely and decisive manner, through the Security Council, when peaceful means are inadequate and national authorities manifestly fail to protect their own populations. In a historic development, the United Nations Security Council invoked R2P in authorizing the international military intervention in Libya in its resolution 1973 adopted on 17 March 2011.
The R2P and peacemaking agendas are fundamentally intertwined. The most effective way to prevent mass atrocities is to stop wars, and peacemaking is a critical tool for the prevention of mass violence. From Cambodia to Rwanda, from the former Yugoslavia to Sudan, the complex process of peacemaking is made even more difficult when it is overlaid with the legacy of the four R2P crimes.
The end of the Cold War removed superpower constraints on local conflicts and opened the door to civil wars on a terrible scale. Genocide, ethnic cleansing, the bombardment of cities, atrocities against civilians, and other war crimes became the hallmarks of the last decade of the 20th century. The Rwandan genocide, ethnic cleansing in Bosnia-Herzegovina, and the controversial NATO operation in Kosovo dramatized the urgent need to develop a framework that, on the one hand, could help prevent or halt future atrocities in a legitimate and consistent manner, while, on the other hand, assuaging fears of sovereignty erosion through humanitarian intervention.
It was against this background that the Canadian government-sponsored International Commission on Intervention and State Sovereignty (ICISS) developed the concept of R2P in 2001. The Commission’s report argued that state sovereignty implies responsibility, and the primary responsibility for protection of people lies with the state itself; and when a state is unable or unwilling to exercise its sovereignty responsibly the international community has a responsibility to take action to protect vulnerable individuals. In the past decade, R2P has undergone conceptual changes in which action thresholds were raised; criteria for the use of force were gradually removed; and the applicable crimes were narrowed down to four. Nonetheless, the core tenets of R2P have remained intact.
R2P allows for a wide array of diplomatic, economic, legal, or military instruments under Chapter VI and VII of the UN Charter, as well as Chapter VIII operations undertaken by regional organizations. The focal point for responding to R2P situations remains the UN Security Council, while national governments are asked to act as good neighbors, generous donors, persuasive diplomats, and, if necessary, appliers of coercive pressure or military force. The R2P toolbox consists of instruments that, depending on the local context, non-sequentially but often simultaneously contribute to the prevention of mass atrocities, the protection of civilians during ongoing conflict, and the stabilization of countries emerging from conflict. Structural tools to prevent, react, or rebuild include the promotion of membership in international organizations, support of equitable development, and security sector reform; examples of direct tools are preventive diplomacy, criminal prosecution, and humanitarian engagement. Despite the emphasis on prevention and cooperative approaches, a flexible response through quick and decisive military action may be required when less coercive measures are unlikely to have a timely and decisive impact.
From Three Responsibilities to Three Pillars
The ICISS introduced a framework with three responsibilities that follow the main stages of the conflict curve: the responsibility to prevent deadly conflict and other forms of man-made catastrophes; the responsibility to react to situations of compelling need of human protection; and the responsibility to rebuild durable peace. Following the 2005 World Summit, R2P was further refined through Special Reports by UN Secretary-General Ban Ki-Moon, as well as debates and interactive dialogues in the General Assembly. The Security Council endorsed R2P in Resolution 1674 on the Protection of Civilians and Resolution 1706 on the situation in Darfur, and in 2009 the General Assembly passed its own Resolution on R2P.
Secretary-General Ban Ki-Moon’s 2009 report on implementing R2P set out a three-pillar approach: the responsibility of each state to protect its own population; the responsibility of the international community to assist states in exercising that responsibility through international assistance and capacity-building; and the responsibility of the international community to take collective action in a timely and decisive manner through the Security Council and in accordance with the UN Charter, when national authorities are manifestly failing to protect their populations.
R2P’s Current Role in Peacemaking
At present, R2P functions primarily as a political tool bolstering the necessary will within the international community to halt and reverse ongoing atrocities. Since 2005, R2P has been invoked a number a times in response to crisis situations, with mixed success and a disturbing level of inconsistency. The invocations can be categorized in four groups based on their appropriateness and the relative effectiveness of the international response. The first is Appropriate Invocation and Effective Action. An example of this was the case of Kenya following the violence in the wake of that country’s disputed presidential election in December 2007. Although little action was taken in advance of the crisis, and R2P was only invoked after the violence had erupted, its invocation bolstered international efforts to resolve the crisis and increased pressure on Kenya’s leadership to find an acceptable solution through dialogue and negotiation.
The second is Appropriate Invocation and Ineffective Action. An example of this was the crisis and ethnic violence in Kyrgystan in the spring and summer of 2010. Key governments, international and regional organizations provided humanitarian relief and economic support, but were reluctant to take action to protect the civilian population and address security concerns. The Kyrgystan case demonstrated that neither early warning signs nor widespread ethnic violence automatically trigger a robust international response.
The third is Inappropriate Invocation, exemplified by the case of cyclone Nargis which struck Burma in May, 2008. The crisis the cyclone caused sparked an intense debate on whether this could be considered an R2P situation. French Foreign Minister Bernard Koucher invoked R2P and was supported by some politicians and commentators primarily in Europe and North America. However, this approach was rejected by China and Russia, and also evoked concern from the UK, as well as from senior UN and AEAN officials who maintained that R2P did not apply to natural disasters. Linking R2P and the humanitarian crisis following Nargis is generally considered to be a misapplication of the principle.
The fourth is Non-Invocation. One of the most striking cases where R2P has not been invoked is in relation to the ongoing conflict in the Democratic Republic of the Congo (DRC), even though R2P crimes have clearly been committed against unarmed Congolese citizens. The conflict in the DRC remains one of the gravest humanitarian disasters of our time, and is arguably the world’s deadliest conflict since World War II. As a principle aimed at protecting vulnerable populations from the most heinous crimes, R2P is certainly applicable to a country whose citizens are the victims of some of the worst atrocities we have seen in decades. The crimes that have terrorized the Congolese population for decades, including mass rape and the use of child soldiers, have certainly passed the R2P threshold.
Persisting Challenges and R2P’s Potential Role in Peacemaking
R2P still confronts a number of conceptual, operational, and political challenges that hamper its implementation and potential role in peacemaking. There are three critical ones: the first is the comprehensiveness of the responsibility to prevent which is one of the key remaining conceptual loopholes within the R2P framework. Advocates can be divided into two groups: minimalists and maximalists. The minimalists argue that R2P’s prevention pillar refers to operational or direct prevention, and should apply primarily to the use of direct and short-term prevention efforts in situations where mass atrocities are imminent. The maximalists maintain that the responsibility to prevent includes structural or root cause prevention efforts, and requires taking effective action as early as possible. In addition, it also necessitates identifying situations at risk of deteriorating into mass atrocities.
The second challenge is the warning-response gap. A key operational challenge for the prevention of mass atrocities, as well as armed conflict more generally, is the disconnect between early warning and timely and decisive political action. New communication technologies allow us to detect and flag signs of instability at an early stage. The number of actors providing early warning has also risen rapidly over the past decade. Early warning is now produced by NGOs, state actors, regional organizations, and risk assessment firms, for a wide array of phenomena, including armed conflict, atrocities, political instability, and natural disasters. But so far, the multitude of information produced has had a limited impact on international and local prevention strategies.
The third challenge is the perceived incompatibility between civilian protection and national sovereignty. A number of UN member states are convinced that R2P undermines national sovereignty as enshrined in UN Charter Article 2(7) and fear R2P could be abused to legitimize unilateral invasions. Concerns about the potential erosion of national sovereignty lie at the heart of the persistent political opposition to R2P within the General Assembly. But states have other motivations in opposing R2P, including a regime’s own past or current human rights record, bad experiences with illegitimate interventions, or strategic behavior within multi-dimensional negotiations. But whether narrowly self-interested or legitimate, R2P rejectionism forms an important impediment to R2P’s implementation.
The influence of R2P on peacemaking has been rather mixed. However, the principle is still in its formative phase, and the process of its institutionalization at the international and regional levels is still evolving. In the short term, R2P could act as an effective catalyst for action as the Libya case demonstrates. It has the potential to operate as a political rallying cry effectively reducing the frequency, intensity, and impact of atrocities. Until R2P has developed sufficient normative strength and resulted in more consistent state practice, the principle can only function as a catalyst, elevating certain issues above normal politics. Its short-term potential contribution to peacemaking lies in its relatively consistent use as a label applied to new and ongoing crises in order to generate political will, and warn or deter potentially irresponsible leaders. Yet some level of inconsistency and double standards will undoubtedly persist. International engagement to prevent or halt R2P crimes will remain conditional on a number of variables, including the complexity of the situation, the risks involved, the potential for success, the international financial and political climate, the geopolitical importance of the country, and host-state consent.
In the longer term, R2P has the potential to operate as a broader norm-based policy framework. Its concrete impact may not be restricted to crisis prevention and management. As its normative weight increases and its normalization advances, it could enhance local and international institutional capacities to assess and address the risk of atrocities at an earlier stage through primary prevention, ensure robust measures are taken to halt R2P crimes in a more consistent manner, and rebuild societies emerging from conflict.
Well said! Note how deftly Dr. Williams describes how R2P can create normative expectations that have the potential to direct policy, but does not assert that the doctrine is an established legal obligation.