Guest Blog Post by Jessica Dorsey*
As a follow-up to a recent Invisible College post recommending Domestici-Mit’s article in the GoJIL, this post is about a notion that seems to be all the rage these days in international legal and policy circles—the Responsibility to Protect (or R2P). R2P is essentially an outline of a state’s obligations toward its population and the international community’s residual responsibility, should the state fail to uphold its duties. A simplified version regarding the most controversial facet of R2P comes from the first section of a report by the ICISS in 2001 propagating the idea that all nations have the responsibility to protect their own from “avoidable catastrophe” (specifically genocide, war crimes, crimes against humanity and ethnic cleansing). In the case that a state fails due to unwillingness or inability, it is then incumbent upon the rest of the world to step in to protect instead, even if that means a resort to the use of military force. It is a sort of complementarity principle for authorizing the protection of individuals. The report came as a response from then Secretary General Kofi Annan’s challenge to the General Assembly in 1999:
if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica — to gross and systematic violations of human rights that offend every precept of our common humanity?
The ICISS Report builds off Francis Deng’s notion of sovereignty as responsibility.
Recent conferences (e.g., at Harvard, UCLA, Cardozo, DePauw, Asia-Pacific R2P Centre , UC Berkeley, ACU), have brought scholars, practitioners, politicians, and other interested parties together to discuss the merits of the doctrine and the evasive answer as to its status and what it really means for international law. There is an upcoming conference by the European Science Foundation in Sweden focusing on the same questions.
Supporters of the idea embrace its timeliness in the face of atrocities in Rwanda, Somalia, Burma, Darfur, to name a few, and its construction that allows for a collective intervention, if necessary, in the name of human rights.
Criticism of R2P
Detractors of the theory include states like China, which, at best, defers its opinion by falling back on the traditional notion of state sovereignty outlined in Article 2(1) of the UN Charter. Others are afraid R2P could be justification for neo-colonialism (e.g., 2003 US/UK action in Iraq) or perhaps a vehicle for powerful Western states to impose their will (though it should be noted that in the constitutive act of the African Union, Article IV codifies R2P and goes even farther by authorizing intervention into a member state in the case of gross human rights violations).
Even the former president of the American Society of International Law, José E. Alvarez, went so far as to label the doctrine “schizophrenic” because of its redefining of old concepts of sovereignty, expanding such normalized standards as what it means to protect and the notion of security. Another potential abuse is the way Russia defended its action in South Ossetia and Abkhazia in 2008, when it cited R2P for its justification for military action (though as the article outlines, this was an incorrect application; R2P is designed for protection of nationals on a state’s own territory).
Clearly the situation in Iraq and the Russian justification for its military action are not what the ICISS report’s authors envisioned as the purpose of the doctrine, but they have been used—however wrongfully—to justify illegal tactics. Furthermore, the defenders of traditional notions of sovereignty are offering proponents of R2P a lot of pushback regarding the way they perceive the concept, how it has always been and the reluctance to change or develop the notion. As the conflict in Darfur continues, however, the discussion returns to the idea put forth by Kofi Annan in his 1999 address to the General Assembly:
Surely no legal principle — not even sovereignty — can ever shield crimes against humanity . . . Armed intervention must always remain the option of last resort, but in the face of mass murder, it is an option that cannot be relinquished.
The justification propelling jus cogens to the top of the international legal order is that they are principles designed to prevent gross human rights violations and are therefore non-derogable. It is accepted that no legal principle should shield violations of these preemptory norms—why is sovereignty, to many R2P critics, a seeming exception? And if it is not an exception, where is the balance between the old-school notions of sovereignty and the development (especially over the last half century) of human rights law with an eye toward liberalist theory? The discussion naturally shifts to what effective “power” or status the doctrine of R2P has and what that, in turn, means for the international community.
Defining the Status of R2P—And Why it Matters
Some question if it is simply “old wine in new bottles” and not a novel concept at all. Some call it an emerging norm, some soft law, and some even wonder if it is well on its way into the status of customary international law. My argument is that it sits somewhere between the last two—that it has gone somewhat beyond what is soft law given its unanimous endorsement from the UNGA World Summit Outcome Document in 2005, subsequent Security Council Resolutions (e.g., 1674, 1706) reaffirming the Outcome Document, and position statements from several governments about the need to support such a norm (e.g., the EU, The United States, Australia, Colombia etc.) to influential figures such as Ban Ki-Moon and even the Pope.
However, especially in the face of the ongoing situation in Darfur—the perfect opportunity to put this support into practice, there has been a reluctance—and some would argue an outright failure or omission—of the international community to step in and exercise its duty to protect while faced with the ongoing violation of preemptory norms. This provides ample evidence that this doctrine is anywhere near completion of its metamorphosis from its status now into internationally legally enforceable custom. That is to say that the two necessary ingredients—state practice and opinio juris—are simply not quite there.
But some ask why it matters where R2P stands in the hierarchy of international policy or law? If there is uniform support (reflected in the unanimous embrace of the Outcome Document) that the international community has an obligation to prevent gross human rights violations, its status matters. The reasoning is simple: if it remains just a norm there is only a slight, if even present, inclination for enforcement or a pressing international urgency for nations to collectively act. If it continues its development into a principle of customary international law, citizens at the mercy of a failed, unwilling or unable government, have a theoretical safety net that their humanity is not at risk when the infrastructure of their faulty government seems to be.
Taking the Pulse of R2P
What do you think? Is R2P just a re-labeling of the notion of humanitarian intervention? Or perhaps still an “emerging norm” and therefore only political? Has it gone beyond the political into the realm of soft law…or perhaps even farther—by taking a firm foothold with recognized state acceptance into the category of customary international law? In short, regarding R2P, where is—or isn’t—it?
*Jessica Dorsey is an LL.M. student at the University of Utrecht in the Netherlands finishing her master’s thesis on R2P. She holds a J.D. from Washburn University School of Law in the US, with an honors certificate in International and Comparative Law, and hopes to continue her career by pursuing PhD research or work in human rights or humanitarian law.