The Current Status of the Responsibility to Protect: Where Is—Or Isn’t—It?

Guest Blog Post by Jessica Dorsey*

Introduction

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.

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9 thoughts on “The Current Status of the Responsibility to Protect: Where Is—Or Isn’t—It?

  1. Good reading here.

    In response to the last comment, I believe the ICC (International Criminal Court) answers your question. One of the solutions to the Darfur crisis was the UN’s referral of the case to the ICC, where Bashir has been prosecuted. There is a warrant out for his arrest, but the AU is being uncooperative; it is questionable how effective this solution has been, considering if Bashir never leaves Africa, it is unlikely he will ever be “brought to justice.”

  2. Jess this takes some time to understand. I would think there needs to be a world court. I also understand when a nation does not want other nations to tell them what to do. This is not an easy thing to fully understand or to know what really needs to be done.
    Love, Dad 😀

  3. Greetings. In my brief absence from the blog, I am pleased to see such discussion developing on this post and I’m happy to be back and able to address issues raised. I also commend the design change and the joining of this blog to the Netherlands School of Human Rights Research.

    Responding to the idea that it may seem R2P is just the convenient doctrine used to justify ends that are politically satiable to the parties involved, at this moment there is no guarantee against this happening (and I would argue that it can continue to happen before R2P is more definitive in nature regarding its status and definitions). I mentioned the situation regarding Russia in South Ossetia/Abkhazia where the government explicitly stated that it had a responsibility to protect its citizens in Georgia. As I also stated, this is a technical misuse of the doctrine, but when states abuse this power, the positive effects of R2P are threatened and its credibility diminished. The same is for the U.S. using any form of R2P in its invasion in Iraq. As Otto points out, we have to question the sincerity of the use of such language as what Chomsky puts forth for justification of Manchuria, Ethiopia, Czechoslovakia…as well as the Russian’s recent homage to the notion. The threshold criteria are quite strict, based in the longstanding notions of just war theory, and are not easily triggered, as you ask, with lesser crimes than genocide, war crimes, crimes against humanity, and ethnic cleansing. If the international community identifies crimes as rising to this level, then R2P is triggered. However, we must keep in mind that military intervention is, even in the R2P system, the last possible resort.

    You mention that in essence humanitarianism is often (if not always) justified by ulterior motivations and that states only act if it is somehow within their political or economic motivations. I agree with that, in part, and as Otto mentions, states should not (and would not) be expected to go on costly missions in order to save foreign citizens. However, there is a movement and recognition in international law based in liberal realism, that states’ self-interest somewhat depends on the stability of the international order. For those belonging to that camp (myself included), international law develops as a response to the respect of collective security through the security of individual rather than that of the nation state. That is evidenced by looking at the general tide of international law that has favored prosecution for the crimes R2P seeks to address, and many see the next logical step after prosecution for these atrocities after the fact is a legal way to prevent them from even occurring. Essentially I see R2P as a catalyst for changing the landscape and making the shift from rights to responsibilities, as Deng and others argue.

    As evidence that the tide is shifting to the international community’s awareness that these crimes should not occur or go unpunished, we have volumes of case law from the ICJ (as Otto pointed out, a very pointed recognition by the Court that Serbia could have and should have stopped the genocide from occurring—supporting the notion at least with genocide that states have a responsibility to protect their own citizens), the entire premise of the ICC, as well as treaties such as the Genocide Convention, the Convention Against Torture, and the Convention on the Elimination of All Forms of Racial Discrimination. This briefly outlines the evolution of prevention and prosecution for these types of crimes. I see the next logical question as what happens when a state fails to prevent or prosecute…and the answer, I find, is offered by the veritable complementarity scheme the R2P doctrine encapsulates, an avenue for intervention built in order to protect innocent lives.

    Otto brings up a good point with which I wholeheartedly agree. Regional organizations would be the favorable method for implementation as I see that multilateral intervention is always preferable to unilateral. As mentioned in the post, this is the tack of the African Union, by placing it in their Constitutive Charter (but of course enforcement is an entirely different issue. Case in point: Darfur).

    As for further examples of its use (or non-use), I cannot speak definitively about those. The main thing I will say to this is that the situation in Darfur is different from the other examples you mention of China, Burma, and Iran, in that the Security Council has taken definitive action to address and condemn the actions in Darfur, whereas there are no such resolutions passed to my knowledge about the other situations. Of course China and Russia, as P5 members, have been active in stamping out any kind of resolution in the Security Council regarding Tibet and Burma, but in a way, this proves the point that perhaps R2P is a necessary augmentation to the current system and its regrettable shortcomings.

    Speaking on Darfur, I see it as the most definitive example of how R2P is evolving regarding its shift from the political realm to the legal sphere. As mentioned, there have been Security Council resolutions reaffirming the commitment to the Outcome Document’s paragraphs 138/139 specifically targeting the ongoing atrocities in Darfur, however it remains to be seen that nations have collectively banded together to put a stop to this, militarily. Thus, at this point, it is a lack of enforcement—not principle—that has prevented R2P from being enacted. The same can be said for the failure of the African Union to act, per its constitution, to protect citizens of Darfur. The best conclusion I can offer is that R2P is still early in its development, and it is a more wait-and-see situation to see if this doctrine will ever gain strong legal footing. R2P is not foolproof, but I argue that it is another stepping-stone of the progress that began with the trials at Nuremberg. There will always be those regimes that will use R2P (incorrectly, I must emphasize) to serve their political means, just as there are regimes that blatantly defy international law in a variety of situations. However, the responsibility this doctrine confers on the international community has the ability to prevent or at least minimize the happening of these horrors again.

    Nick, if I may redirect some questions to you: it seems as though you are a proponent of the strong state sovereignty argument. I am curious, then, if you could offer your thoughts of balancing that notion against the violation of jus cogens norms? And how does the sovereignty notion that you prefer offer a lasting security model reflecting the current status of international law? Is there a place at which you draw the line on the continuum of state sovereignty and intervention in the case that genocide, for example, is occurring? Is that all to be dealt with by the Security Council or can there be other justifiable action in the case the Security Council fails to meet its obligations of promoting peace and security?

    I look forward to the continued discussion!

  4. Hi Nick,

    That’s a good point. Indeed, the whole idea of the R2P is that it entails a responsibility – or a duty- to intervene, and not a right to do so. I see that my comment has suggested otherwise, and that is highly regrettable.

    For most of the serious crimes, such a global responsibility to do something actually exists already, in international law.

    Take, for example, genocide. The International Court of Justice explained, in para. 430 of the Bosnia v. Serbia judgment of 2007, that responsibility for preventing genocide is incurred ‘if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide.’ Note that the Court referred to measures within the State’s power, not within its own territory, or something like that.

    The Court continued that what mattered mostly in determining a State’s scope of responsibility, was ‘the geographical distance of the State concerned from the scene of the events’ and ‘the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events.’

    Finally, and most importantly, the Court emphasized that ‘it is clear that every State may only act within the limits permitted by international law,’ and that ‘a State’s capacity to influence may [thus] vary depending on its particular legal position vis-à-vis the situations and persons facing the danger, or the reality, of genocide.’

    In my view, the latter limitation of the scope of responsibility is the most important, since international law actually prohibits most forms of intervention, as you know.

    I leave the examples where R2P was (or was not) implemented to the author of the blog post. Interestingly, Chomsky argued recently that R2P-type language was also used to justify Japan’s attack on Manchuria, Mussolini’s invasion of Ethiopia, and Hitler’s occupation of parts of Czechoslovakia (see http://www.un.org/ga/president/63/interactive/protect/noam.pdf). Those are not the examples we are looking for. Fortunately, I think there are plenty of reasons to disagree with Chomsky’s claim that these interventions were really justified by R2P-type language, or that this language was used sincerely.

    All the best,

    Otto

  5. “I don’t see why it would be problematic if States only intervene if that is also in their self-interest (emphasis on the word ‘also’).”

    I guess my problem then is with the word “responsibility to protect” and a confusion about the concept of responsilibity vs. rights.
    A responsibility is not something that you only carry out when it is convenient and overlaps with military or economic interests.
    Perhaps the principle you have in mind is more of a “right to protect” since the primary emphasis of the doctrine seems to be on the right of some nations to violate the sovereignty of other nations to protect their own citizens – then countries are free to exercise that “right” whenever it is convenient for them.

    I’m still waiting to hear what you guys consider examples where R2P was (or was not) implemented. Does Darfur meet your threshold? What about Iraq or Afghanistan pre-invasion? Iran or Burma or China (and their political dissidents and minorities) today?

  6. CONFERENCE ANNOUNCEMENT AND CALL FOR PAPERS

    The Amsterdam Center for International Law (ACIL) of the University of Amsterdam, in cooperation with the Global Centre for the Responsibility to Protect, New York, announces and invites you to the Research Conference The Responsibility to Protect: from Principle to Practice which will be held in Scandic Linköping Väst, Sweden, from 8 to 11 June 2010.

    The Conference will bring together a unique group of experts, academics as well as policy makers, from all regions of the world, and from various disciplines, including political science, international law and moral philosophy.

    In light of the broad but not necessarily deep consensus in the UN General Assembly on R2P, the Conference will review the contribution that the R2P could make to the prevention of mass atrocities. Questions addressed include: what can R2P add to existing principles and processes, how can it be implemented in practice, and what role can be played by the UN and regional organizations?

    In addition to the invited speakers who are already on the programme, the Conference has slots for papers of young researchers, who are invited to submit proposals.

    The Conference is supported by the European Science Foundation and made possible through financial contribution from the Government of the Netherlands.

    Visit http://www.esf.org/conferences/10319 for more information, submission of proposals and registration. Please note that the fee includes accommodation. Grants for (partial) waiver of fees are available. Deadline for registration: 8 March 2010.

  7. Hi Jessica, Wilbur and Nick,

    Great post!!

    To Nick: I don’t see why it would be problematic if States only intervene if that is also in their self-interest (emphasis on the word ‘also’). It would be silly to expect States to go on suicide missions, or at best extremely expensive missions, solely to protect foreign individuals in desperate need. This is why I would favor a regional use of R2P, where various regions decide how to implement the concept.

    So much has been written about the R2P, that it tends to become an over-exploited concept, despite the fact that it was only ‘invented’ some years ago. For some books, all claiming to be THE book on the subject, see Bellamy’s ‘Responsibility to Protect,’ Evans’ book with the exact same name, Pattison’s ‘Humanitarian Intervention and the Responsibility To Protect,’ and my personal favorite: Thakur’s ‘The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect.’ There are many many more.

    The criteria, I would suggest, for military intervention based on the R2P – note that non-military forms of intervention are also possible, even preferable – are still best presented in the ICISS report, as follows:

    The Just Cause Threshold: there must be serious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind: large scale loss of life, 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’, whether carried out by killing, forced expulsion, acts of terror or rape.

    The Precautionary Principles: According to the principle of ‘right intention,’ the primary purpose of the intervention, whatever other motives intervening states may have, must be to halt or avert human suffering. This principle thus clearly allows a combination of selfless and selfish – or ‘self-interested’ motives. According to the principle of ‘last resort,’ military intervention can only be justified when every non-military option for the prevention or peaceful resolution of the crisis has been explored. According to the principle of ‘proportional means,’ the scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the defined human protection objective. And, finally, according to the principle of ‘reasonable prospects,’ there must be a reasonable chance of success in halting or averting the suffering which has justified the intervention, with the consequences of action not likely to be worse than the consequences of inaction.

    Right Authority: There is no better or more appropriate body than the United Nations Security Council to authorize military intervention for human protection purposes. If the Security Council rejects a proposal or fails to deal with it in a reasonable time, alternative options are: consideration of the matter by the General Assembly in Emergency Special Session under the “Uniting for Peace” procedure, and action within area of jurisdiction by regional or sub-regional organizations under Chapter VIII of the Charter, subject to their seeking subsequent authorization from the Security Council.

    Operational Principles: according to the most important of these principles, i.e. the principle of ‘clear objectives,’ there must be a clear and unambiguous mandate at all times; and resources to match.

    All this makes very good sense, I think.

    All the best,
    Otto

  8. As an economist, I’m generally inclined to believe that states act in their own self-interest, and that R2P is a convenient doctrine to use to justify military action when it suits economic or strategic interests. It seems like we have very few real life examples of states making genuine sacrifices of blood and treasure, violating the sovereignty of other nations (no matter how much they are failed states) for nothing other than the protection of the citizens of other countries. Perhaps you can assuage my cynicism by discussing some real-life examples. There are just too many examples of humanitarianism used as cover for other purposes for me to believe that we are moving towards a real R2P acceptance by the international community until I see some good counter-examples.

    I’m also concerned about what kind of trigger would be used if R2P ever became adopted. I understand that some international law doesn’t have clear guidelines or triggers for interventions and is enforced on a case by case basis, but because the conversation is at such a high level of abstraction, I’m never sure what constitutes sufficient cause. Is it genocide or would “lower level” shootings and crack downs on political dissidents count? Would Saddam be considered committing “active genocide” at the time of the invasion of Iraq? Would Chinese policies in Tibet or against the Uighurs qualify?

  9. Jess, what court would have jurisdiction in such cases? Does the U.N. accept this R2P? It would seem that the U.N. would be the logical group (state) to enforce if countries won’t step in. Of course, most think that the U.S. isl the world police. Maybe it has been but we will be totally broke if this continues. Love, Grandpa

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