The evolution of the Responsibility to Protect

A decade on from the adoption of the R2P, keeping vulnerable groups safe is still a big challenge

Ramesh Thakur

Government and governance, International relations, Law, National security | Australia, Asia, East Asia, The World

21 September 2015

The Responsibility to Protect is widely recognised as one of the most significant post-war normative shifts. But getting states to use it to prevent or halt atrocities remains a challenge, Ramesh Thakur writes.

October marks the tenth anniversary of the unanimous adoption of the responsibility to protect (R2P), where sovereignty imposes the responsibility on states to protect all residents in their jurisdiction from the four mass atrocity crimes: genocide, crimes against humanity, war crimes and ethnic cleansing.

If the state defaults owing to incapacity, unwillingness or complicity, the responsibility transfers to the international community acting through the United Nations Security Council. R2P is the central organising principle for outsiders to respond to mass atrocity crimes by striking a balance between unilateral intervention and institutionalised indifference.

Widely hailed as one of the most significant normative shifts since 1945, R2P is no longer seriously contested as principle. However, its implementation to prevent or halt atrocities requires a transition from R2P as global norm to its adoption as policy by key states nationally, and the UN collectively.

To grasp the critical difference between a global norm and national policy, consider two examples. The long-established normative benchmark for development aid is 0.7 per cent of Gross Domestic Product, but few donors outside northern European countries aim for the target as national policy. With nuclear weapons, the norm is abolition, but the policy of all nine countries that have them is to keep them indefinitely. While there is considerable scholarly discussion of the life cycle of global norms, there is a surprising dearth of attention to an equivalent life cycle of global policy.

Iamge by Possibly Maybe on Flickr. https://www.flickr.com/photos/murplejane/3096660916/

Iamge by Possibly Maybe on Flickr. https://www.flickr.com/photos/murplejane/3096660916/

There are seven policy way-stations that can be identified as stages of R2P global policy development.

First is the default policy setting.  At the end of the last century this was sovereignty with the corresponding norm of non-intervention. The bedrock organising principle of modern international society, sovereignty was strongly reaffirmed by the large number of countries that regained their independence from colonial bondage in the last century.

Juridical sovereignty notwithstanding, ‘humanitarian intervention’ also has a long history. However, the many examples of intervention in actual state practice over the centuries did not lead to an abandonment of the norm of non-intervention. Often the breaches provoked such impassioned controversy that their net effect was to reinforce the norm.

Secondly, there is a powerful challenge to the dominant policy. As the world steadily became a global village under the impact of rapid developments in communications and transportation technology, the human rights norm also deepened and became universal. This produced normative dissonance between the norm of non-intervention, and humanitarian atrocities perpetrated by some brutish thug-rulers on their own peoples and shielding behind that norm. But when NATO defied the norm of non-intervention in Kosovo in 1999 to protect the victims of Serbian atrocities, the claimed emerging norm of ‘humanitarian intervention’ was strongly rejected by most states as an effort to re-legitimise the unilateral use of force internationally by some, in order to circumscribe the arbitrary use of force internally by others.

If Kosovo in 1999 was the paradigmatic case of unilateral intervention, shameful inaction amidst mass atrocities was the Rwanda genocide in 1994. The norm, embedded in the 1948 Genocide Convention, was to prevent or stop genocide. The policy was to escape this obligation in the humanitarian crises of Africa by denying the reality of genocide.

Image by kian Elyassi Bakhtiari on Flickr. https://www.flickr.com/photos/kian1/536880024/

Image by kian Elyassi Bakhtiari on Flickr. https://www.flickr.com/photos/kian1/536880024/

The UN suffered its next reputational blow with the fall of the UN ‘Safe Area’ of Srebrenica in July 1995, and the slaughter of more than 7,000 Bosnian men and boys sheltering under the protection of Dutch UN peacekeepers.

The third policy way-station is policy innovation. Doing nothing was no longer acceptable to a globally sensitised human conscience (Rwanda), but doing something militarily when confronted with an impossible-to-obtain UN authorisation was not legally permissible either (Kosovo). The existing normative consensus was no longer fit for purpose against the brutal facts. The essence of the controversy can be distilled into two questions: Is UN authorisation a sufficient condition for overseas military action? If UN authorisation is not a necessary condition, what is the alternative set of rules and the institutions and regimes in which they are embedded?

The innovative report of the International Commission on Intervention and State Sovereignty changed the conceptual language from ‘humanitarian intervention’ to ‘the responsibility to protect’, and pinned that responsibility on state authorities at the national and the Security Council at the international level.

Policy Development is the fourth factor. R2P was adopted by the UN General Assembly in 2005. Affirming individual state responsibility to protect populations, member states declared they were ‘prepared to take collective action… through the Security Council … should peaceful means be inadequate and national authorities are manifestly failing to protect their populations’. Secretary-General Ban Ki-moon’s special reports, annual debates in the UN General Assembly and advocacy by civil society organisations have promoted R2P norm elucidation, socialisation and crystallisation.

UN

Next is policy implementation. The UN-authorised and NATO-led intervention in Libya in 2011 showcased both the potential mobilising power and the limitations of R2P as a call to international arms. The Security Council decision to authorise intervention was textbook R2P intervention but NATO went well beyond and unilaterally changed the mission to regime change, producing a global backlash.

Then came policy paralysis. The post-Gaddafi turmoil and volatility in Libya further complicated international responses to the Syrian crisis. But there are also deep structural dilemmas as Syrian domestic complexities and uncertainties, combined with regional rivalries, make it impossible to assess the balance of consequences of military intervention. Good intentions are no guarantee of good policy outcomes on distant battlefields in foreign lands. As proven repeatedly, especially in the Middle East, there is no humanitarian crisis so grave that it cannot be made worse by an outside intervention.

Emerging policy parameters are the final policy way-station. The challenge is how to recreate R2P consensus on the tricky question of when, by whom and under whose authority force may be used across international borders to protect mass victims of excess violence inside sovereign jurisdictions.

As the emerging powers claim seats at all the institutions of global governance they will have to ensure, in collaboration with the existing major powers, that, through international accountability instruments, vulnerable groups are protected from predations by brutish rulers domestically. In addition, they must ensure that weak countries are protected from the predations of regional or global major powers, and violators of both sets of norms on the use of force are made to answer for their transgressions.

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