The very reason why responsibility to protect fails drastically in many circumstances is that the international community is plagued by the complete lack of political will. Alex Bellamy finds that “the international community’s actual record of preventing and halting the mass killing of civilians is staggeringly poor”.When the practical battle of sovereignty versus humanitarian intervention started the former UNSG Kofi Annan proposed a “forged unity” that resulted the norm of humanitarian intervention. (Bellamy, June 2006 )
The indeterminacy (sovereignty v intervention) somehow makes the responsibility to protect to fail in both practical and institutional terms. However, there is still hope that with the “compliance pull” the R2P can be newly emerged as it proved to be better solution than humanitarian intervention. It is worthy to note what Eric Heinze speaks on humanitarian intervention and he says “the transboundary use of military force for the purpose of protecting people whose government is egregiously abusing them, either directly, or by aiding and permitting extreme mistreatment”. (Heinze, 1 January 2010). Gareth Evan comments on Humanitarian Intervention as follows: “mistake of going to war when we should not, but also what can sometimes be the even bigger mistake of not going to war to protect our fellow human beings from catastrophe when we should”. (Sahnoun, November – December 2002 )
There are four core claims on the legality of the humanitarian intervention:
The plain meaning and language of UN Charter
UN Charter is being an “organic document” not answering the legal arguments
Viewing customary law and other normative practices as the legal basis of a state’s behavior
There is codified treaty law that define the rules for state behavior
Along with the four claims above, the question of morality is another issue. For example, the humanitarian intervention in Haiti would have been still justified without the OAS (Organization of the American States) sanctioning and the NATO’s intervention in Kosovo without Security Council mandate is “illegal but legitimate” but sanctioned for its “compelling moral purpose”.
When talking about Responsibility to Protect and it’s predecessor norm humanitarian intervention it is vital to remember that both are derived from Just War tradition “Quod est necessarium est licitum – ‘that which is necessary is legal’ in other words as quoted by the Prime Minister of East Timor “Some times war saves people”. (Schrijver, 2000)
Sovereignty has a long history of colonial war and revolutions, and it is still promised with “self-determination” and “future free from outside interference” which is considered to be as just an “emotional attachment”. At this juncture it is worthy to note Gerath Evan’s view on sovereignty “Sovereignty thus hard won, and proudly enjoyed, is sovereignty not easily relinquished or compromised”
The following responses on NATO’s intervention in Kosovo would reflect the nation states’ take on “sovereignty”
Algerian President, and then President of the Organization of African Unity (OAU), Abdelaziz Bouteflika, in addressing the UN General Assembly in 1999, advocated the value of sovereignty as “our final defense against the rules of an unjust world”
Former Secretary of State and realist scholar, Henry Kissinger lambasted British Prime Minister Tony Blair after the intervention in Kosovo for the “abrupt abandonment of the concept of national sovereignty”
Nelsen Mandela in 2000, saw military action in Kosovo as: “such disregard for international conventions was more dangerous to world peace than anything that was currently happening in Africa
The basic problem is that the individual is protected by intervention whereas the state in protected by territorial sovereignty and non-intervention.
“the international community’s actual record of preventing and halting the mass killing of civilians is staggeringly poor”
The theoretical vacuum between non-intervention and moral responsibility to protect humanity at risk engulfs majority global crisis and thus Responsibility to Protect became the solution.
R2P can be metaphorically compared to a bridge that connects indeterminacy of intervention vs sovereignty. (Stahn, 2007 )
R2P and practical successes
In Kenya after the presidential elections in 2007, the violence outbroke with the killing of 1000 people and displacement of 250,000. Frances Deng, through the Special Advisor on the Prevention of Genocide (OSAPG) used R2P to charge political leaders who are inciting violence. As a result, the inflammatory speech and hate comments were banned and it reduced considerable amount of human sufferings.
Libya is another watermark example for R2P is where Kadaffi’s regime was thrown out not only by his death but also by successful international mobilization and application of humanitarian principles. At this moment it is worthy to note Jack Straw, as British Foreign Minister said: “if this new responsibility had been in place a decade ago, thousands in Srebrenica and Rwanda would have been saved”(Thakur, 2011)
R2P – Failure Stories
When declaring Responsibility to Protect through a UNSC resolution, it is extremely difficult to gain the consent or the support of all the nation states in unity especially the P5. In Resolution 1973 on Libya the most important international actors like India, Russia, China and Brazil chose to abstain rather than endorse the Resolution whereas the BRICS countries expressly stated their distrust in Responsibility to Protect.
The case of Darfur
When Darfur was in the need of humanitarian assistance, The R2P was explicitly declared by British Government, and the UNSC resolution condemning Khartoum. It was later realized by the international community that the key players of the international politics were unwilling to support humanitarian operations through providing necessary military troops. R2P does not expect consent from the targeted states and UNSC Resolution 1706 called “the consent for national unity” from international governments which was ended up as failure. Lee Feinstein articulates “If Darfur is the first ‘test case’ of the responsibility to protect there is no point in denying that the world has failed the entry exam”.
Although the Kenya sets an example of a successful R2P application, it was criticized that R2P used more as a “diplomatic tool than a catalyst for action”. Kenya’s act of dragging R2P into the territory without a clear-cut evidence of ethnic cleansing and only 700-800 confirmed deaths also questioned the threshold of the doctrine of responsibility of protect.
R2P failed to protect about 150,000 of people who were at a huge humanitarian risk in Sri Lanka at the final phases of war when the Government of Sri Lanka turned its defensive humanitarian operation into offensive. The intervention of international community was widely expected at the final moments of war and Crawshaw from Human Rights watch criticized it as points “there was a failure to address the Sri Lankan issue and that I think can be said to be indicative of where the gap between the words and reality is”.
In Mali, despite of three explicit UN Resolutions and the support of ECOWAS, the unilateral intervention of France was needed to proceed international assistance. As per the UN Commission on Inquiry, the government of Guinea committed crimes against humanity, yet the language of R2P was nowhere to be seen. In the case of DRC (Democratic Republic of Congo), the UNSC failed to authorize intervention under the guise of Responsibility to Protect. Although troop expansions, mandate strengthening and greater assistance were given in DRC, the R2P had no practical impact.
The issue of Israel’s assault on Gaza was raised at the UNGA in 2009 and the citizens of Gaza were in need of R2P Solution. The failure to intervene reflected of a “selective application” and “double standards”.
Apart from the failed intervening moments on humanitarian grounds, the misappropriation created more confusions which leads back to the indeterminacy of intervention versus sovereignty. French intervention Myanmar upon the post-Nargis Cyclone rebuilding, Russia’s misinterpretation of R2P language to annex South Ossetia in which Russian Foreign Minister Sergei Lavrov stated that the “proximity of the conflict makes it absolutely unavoidable to us to exercise responsibility to protect”, and Tony Blair’s use of R2P to invade Iraqin 2003 are some of the examples where the prism of R2P was misused. These incidents not only questioned the threshold of the doctrine but also invalidated the manifestation of the four mass crimes covered by the R2P.
Political Will
The “age of strict national sovereignty” started to change slowly during 1990’s after some acts such as UN Resolution to authorize no fly-zone over Iraqi-Kurdistan under the justification of “right to intervene” and legitimatization of entering into the crisis zones such as Rwanda and Darfur under Genocide Convention. The establishment of ICTY and ICTR and evolving realm of human rights and human security always reconstructed the practices of sovereignty time to time. The slogans such as “its people’s sovereignty rather than sovereign’s sovereignty”, “sovereignty is also a responsibility” have started to articulate the international law. Thus, in the present context sovereignty is not a challenging ground to R2P as it is expected to be. The foremost and challenging barrier to responsibility to protect is the lack of moral and ethical will. This is explained by Alex Bellamy, the reason that humanitarian intervention was not successful pre-R2P was “the basic political fact that no state wanted to pay the price associated with saving strangers”. With absence of strict sovereignty concept, the scholars of international law acknowledged the need of a strong “political will” to back it up as Lee Feinstein observed in the World Summit. Aidan Hehir explains that “political will is the variable upon which the entire utility of R2P is now predicated”. The General Assembly 2009 recognized the need of “political will at the right time” and the co-chair of the ICISS report, Gerath Evans noted that “without the exercise of political will, by the relevant policy makers at the relevant time, almost none of the things for which this book has argues will actually happen”.
The failure of the doctrine during Rwandan Genocide was, according to Thakur, due to lack of “civic courage and collective consciences, UN inquiry pointed out “lack of resources and political commitment”, andICISS finally concluded as “a failure of international will”. Taking East Timor scenario into consideration, a senior diplomat and scholar in Jakarta described the unwillingness to intervene as “Indonesia matters and East Timor doesn’t and Aida Hehir commented “it was clear that no intervention would take place without Indonesia’s consent”. The Srebrenica massacre is another example where the Report of the Secretary-General 1999 commented that “the cardinal lesson of Srebrenica is that a deliberate and systematic attempt to terrorize, expel or murder an entire people must be met decisively….with the (requisite) political will”. The Democratic Republic of Congo, Somalia, Sri Lanka and North Korea are some of other examples where the international community lost consciences to intervene. Bernanrd- Henri Levy , an author in the Public Intellectuality commented of the fact that French Government was successful in the gist of R2P in Darfur, yet failed in other scenarios due to a single issue of “ the political will of one man, the President of the French Republic, Nicolas Sarkozy” also raised a question “If Libya, then why not Bahrain, Yemen, or Syria?”. Leon Panetta, the Defense Secretary of United States viewed the failure of American Administration to intervene into Syria as “we learned a lot about how to confront al-Qaeda and its affiliated as a result of operation in Pakistan and Afghanistan…. we know how to do this”.
Responsibility to Protect: Weaknesses and Recommendations
Would R2P work as a regional protection?
Responsibility to protect fails mostly in the initial stage of its implementation by two reasons: 1. The United Nations Security Council fails to get the consent of the Permanent Members, 2. It may fail in the national level as the governments use the concept to achieve it’s national interests which would further lead to a development of a “neo-colonial state” that uses power to oppress citizens. (O’Donnell, 2014)Since R2P was formed on the basis of United Nations values and United Nations Charter authorizes the validity of regional arrangements in resolving conflicts, the new suggestion merged of implementing Responsibility to Protect as a regional arrangement. While having R2P implemented by Regional Organizations, the implementation would limit itself within its purposes and the there would be less infringement of state sovereignty. (Shen, 12th January 2000)
All the regional arrangements are agreed upon a certain Charter (a treaty or an agreement) that binds the member states and the rights to intervene or the theory of responsibility to protect can be included in such binding provision. In those circumstances, the ROs can intervene with the help of member states using either permanent troops and troops called upon member states. While using Responsibility to Protect through regional arrangements would stop the intervention of powerful states with geopolitical interests, spill over effect on developing and third world countries, serve with the bona fide intervention of protecting civilians from human rights violations. (Naomi Kikoler, September 2009 )Regional Organizations maintain strong economic, cultural, historic and political ties with the violating state and member states which would create a quicker response and most of the armed conflicts rise around regional level more than national and international level. It is also vital to note that incorporating R2P with Regional Organizations is just a logical choice that needs legal attention to be executed since some of the regional organizations are controlled by the hegemonic powerful states within it especially when the RO is a continent spanning (Example: African Union). (Rosenperg, 2009 )
UN Charter’s Article 2 strict prohibition against use of force can be made favorable to responsibility to protect applying two arguments: a sovereign state can limit its sovereignty by entering into multi-lateral treaties and the interpretation of the language of the UN Charter itself. When it comes to the sovereignty issue foremost requirement to overcome the national sovereignty problem is that the R2P must be squared with UN Charter’s recognition for the “sovereign equality of all its Members” and UN Charter’s prohibition against “the threat or use of force against the territorial integrity or political independence of any state”. (Orford, February 2011 )The dilemma fails to understand how a state can fundamentally establish its own right to limit its sovereignty through ratifying treaties and other international obligations. The UN Charter can be taken as a simple example and further the R2P is a pre-requisite for a statehood as per the Montevideo Convention expects nation-states to have the capacity to enter into relations with other states to earn legal recognition in the international law. The ICISS reports points out “external sovereignty” (respecting other states) is only applicable for the states which fulfill the obligations come under the “internal sovereignty” (the primary obligation includes protection of civilians within the territory). According to Crossly, the concept of “equal sovereignty” in international customary law for the states who misuse their “internal sovereignty”. (Henrikson, 1996)
The Article 2 of the UN Charter is ambiguous, not only restricts the application of responsibility to protect concept but also challenges the practicability of Regional Organizations utilizing this international law norm. Article 53 of the Charter emphasizes that Regional Organizations are not authorized to “enforce actions” without the UNSC Resolution. Article 24 is vested with promoting international peace and security and thus Article 54 expects the ROs to support for peace and security arrangements within the regional level. (Zifcak, 2011) Further, ROs are given secondary authority to deal with peace and security conflicts within the region, next to International Organizations and International Treaty Law. This freedom can be misused and the most practical example is NATO’s intervention in Kosovo which was criticized by the international society as it lacked humanitarian purpose. Therefore, it is important the ROs’ founding Charter should include the clauses of R2P which are justified validly by Member States before incorporating. (Cuéllar, 2004)
The most recent practical example of how Regional Organizations can be effectively utilized to tackle down the internal conflict of a region under the concept of Responsibility to Protect. When Boko Haram Insurgency started threatening the political integrity of Nigeria and the Member States, the African Union initiated multiple actions against terrorist including creation of “Multinational Joint Task Force”, without any approval from UN Security Council. Instead of waiting for Security Council’s approval, having known to the background of the Nigerian integrity and the situations of the neighbor states, African Union used Responsibility to Protect as an effective counter-terrorism strategy to defeat Boko Haram. (Brechenmacher, 2019 May )
Responsibility to Protect is an obligation of internationality based on humanitarian concern of preventing mass atrocity crimes and human rights violations. Adapting to some theoretical and practical challenges can not only strengthen the implementation of the norm but also fill the already existing loopholes found in the application of the norm. The changes include incorporating of Regional Organizations as players of intervention overlapping the R2P concept, making structural changes in the United Nations Security Council methodology and stressing out the fact the R2P should carry a legally binding role in the international customary law although it is not passed through a legally binding treaty.
