RESPONSIBILITY TO PROTECT (R2P) IN THEORY AND PRACTICE – FLAWS AND CHALLENGES
Aurora Martin*
- Abstract: After defining the concept of Responsibility to Protect (R2P) and presenting a theoretical framework in the previous work, Human Security: from Humanitarian Intervention to Responsibility to Protect (1) this article will step forward from theory to practice. In this respect, taking in consideration that R2P is an important milestone in understanding sovereignty, intervention, and human rights, I shall make an overview on how is it dealt in the International Commission on Intervention and State Sovereignty’s report and in the UN Secretary General report during the General Assembly at the 2005 World Summit. The ICISS report was built on three dimensions of R2P – the responsibility to prevent, the responsibility to react and the responsibility to rebuild, meanwhile the UN Summit Outcome suggests that the R2P rests on three Pillars: Pillar one – The protection responsibilities of the State, Pillar two – International assistance and capacity-building and Pillar three – Timely and decisive response. Finally, a study case: Darfur
2.1. A SNAPSHOT ON R2P THEORY
2.2. R2P IN ACTION: DARFUR
Key words: Responsibility to Protect (R2P), International Commission on Intervention and State Sovereignty (ICISS), Responsibility to Prevent/React/Rebuild, Darfur
2.1. A SNAPSHOT ON R2P THEORY
As previously mentioned in the first part of the article Human Security: from Humanitarian Intervention to Responsibility to Protect (1), the Responsibility to Protect was first presented in the report of the International Commission on Intervention and State Sovereignty (ICISS) in December 2001. Building on Francis Deng’s idea of sovereignty as responsibility, the Commission addressed the question of when state sovereignty – a fundamental principle of international law – must yield to protection against the most egregious violations of humanitarian and international law, including genocide, ethnic cleansing and crimes against humanity.
First of all, the ICISS report was built on three dimensions of R2P – the responsibility to prevent, the responsibility to react and the responsibility to rebuild. The responsibility to prevent is oriented toward addressing both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk. The responsibility to react refers to the response to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention. The responsibility to rebuild is aimed to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.[1]
Secondly, the ICISS report synthesized the core principles of R2P, especially for the cases of military interventions. Military intervention for human protection purposes is an exceptional and extraordinary measure to be taken in extreme situations and in order to be warranted, there must be serious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind: genocide, war crimes, crimes against humanity and ethnic cleansing.
There are also some precautionary principles, which are essential and needed to be taken into account before any military action in an R2P situation.
A right intention is, of course, the primary purpose of the intervention, whatever other motives intervening states may have and must be directed to the clear purpose of halting or avoiding human suffering. Right intention is better assured with multilateral operations, clearly supported by regional opinion and the victims concerned.
When every non-military option for the prevention or peaceful resolution of the crisis has been explored, and there are reasonable grounds for believing lesser measures would not have succeeded, military intervention can be considered as a justified last resort.
Proportional means, namely the scale, duration and intensity of the planned military intervention should be the minimum necessity in order to secure the defined human protection objective. Of course, there should 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 is another of the key points to be analyzed, in order find the right way, to go through all necessary steps. We have to agree to the fact that there is no better or more appropriate body than the United Nations Security Council, which is entitled to authorize military intervention for human protection purposes. It is the Security Council’s task to deal promptly with any request for authority to intervene where intervene allegations of large-scale loss of human life or, alternatively, ethnic cleansing. Adequate verification of facts or conditions on the ground that might support a military intervention should be looked into for, in this context.
The second milestone, even though the term was adopted in other reports within the UN Secretary General[2], was represented by the unanimous embrace of the responsibility to protect principle by the General Assembly at the 2005 World Summit. The endorsement of R2P, in this context, was a very major achievement and one of only a small handful of real achievements from the whole occasion (along with the creation of the Peacebuilding Commission and the agreement to replace the dysfunctional Commission on Human Rights with a new Human Rights Council).
The provisions of paragraphs 138 and 139 of the Summit Outcome suggest that the responsibility to protect rests on the following three pillars:
- Pillar one: The protection responsibilities of the State refers to the enduring responsibility of the State to protect its populations, whether nationals or not, from genocide, war crimes, ethnic cleansing and crimes against humanity, and from their incitement.
- Pillar two: International assistance and capacity-building is the commitment of the international community to assist States in meeting those obligations. It seeks to draw on the cooperation of Member States, regional and subregional arrangements, civil society and the private sector, as well as on the institutional strengths and comparative advantages of the United Nations system.
- Pillar three: Timely and decisive response is the responsibility of Member States to respond collectively in a timely and decisive manner when a State is manifestly failing to provide such protection.
Additionally, the 2005 World Summit outcome document stipulated that the responsibility to protect applies, until Member States decide otherwise, only to the four specified crimes and violations: genocide, war crimes, ethnic cleansing and crimes against humanity.
The third milestone, namely the UN Secretary General report on Implementing the responsibility to protect (January 2009), brought at the table some practical solutions in addressing the three pillars emphasized during the 2005 World Summit. Still, in relation with the crimes associated to the R2P, the report explicitly mentions that “…to try to extend it to cover other calamities, such as HIV/AIDS, climate change or the response to natural disasters, would undermine the 2005 consensus and stretch the concept beyond recognition or operational utility”.
In connection with the pillar 1, the 2009 Secretary General report provides for the states to assist the Human Rights Council in sharpening its focus as a forum for considering ways to encourage states to meet their obligations relating to the responsibility to protect and to monitor, on a universal and apolitical basis, their performance in this regard. States should also become parties to the relevant international instruments on human rights, international humanitarian law and refugee law, as well as to the Rome Statute of the International Criminal Court.
Additionally, state-to-state learning processes are considered to promote the transfer of best/good practices, to introduce criteria relating to the responsibility to protect into peer review mechanisms. Similarly, one of the keys to preventing small crimes from becoming large ones, as well as to ending such affronts to human dignity altogether, is to foster individual responsibility.
With regard to the pillar 2, the report considers helping to build the civilian capacities of regional and subregional organizations to prevent crimes and violations relating to the responsibility to protect could be a wise investment. There have also been a lot of proposals by Governments and civil society alike for creating a standing or standby rapid-response civilian and police capacity for such emergencies.
Still, what is most needed, from the perspective of the responsibility to protect, are assistance programmes that are carefully targeted to build specific capacities within societies that would make them less likely to travel the path to crimes relating to the responsibility to protect. The United Nations and its Member States should encourage and support geographically broad-based research networks that seek to gain a better understanding, case by case, of why some states have taken one path and other states a different path. To strengthen pillar two, a cumulative process of country-to-country, region-to-region and agency-to-agency learning is needed on prevention, capacity-building and protection strategies in order to gain a keener and more fine-tuned sense of how various strategies, doctrines and practices have fared over the years.
In support of the pillar 2, at least five capacities can be identified as critical: (a) Conflict-sensitive development analysis (analyze emerging issues and tensions together, as part of development planning), (b) Indigenous mediation capacity (forming or strengthening credible institutions and processes that can help find internal solutions to disputes, promote reconciliation and mediate on specific matters), (c) Consensus and dialogue (building capacities for inclusive and participatory processes of dialogue, and providing neutral spaces and forums for addressing contentious issues through such dialogues), (d) Local dispute resolution capacity (building a peace infrastructure, at both the national and local levels) (e) Capacity to replicate capacity (absorbing the capacities defined above in societies).
Last but not least, the United Nations and regional organizations should undertake region-to-region learning and lessons-learned processes concerning assistance relating to the responsibility to protect, given how new this field is.
The tenets of pillar 3 states that, in a rapidly unfolding emergency situation, the United Nations, regional, subregional and national decision makers must remain focused on saving lives through “timely and decisive” action, not on following arbitrary, sequential or graduated policy ladders that prize procedure over substance and process over results.
In this case, particular attention should be paid to restricting the flow of arms or police equipment, which could be misused by repressive regimes that are manifestly failing to meet their core responsibilities under paragraph 138 of the Summit Outcome, or in situations where an ongoing conflict threatens to escalate into the perpetration by one side or another of large-scale crimes and violations relating to the responsibility to protect. At the same time, targeted sanctions, such as on travel, financial transfers, luxury goods and arms, should also be considered by the Security Council, on a case-by-case basis and in cooperation with relevant regional organizations, as appropriate.
There are also political implications – within the Security Council, the five permanent members bear particular responsibility because of the privileges of tenure and the veto power they have been granted under the Charter.
Regarding the use of military force, Member states may consider the principles, rules and doctrine that should guide the application of coercive force in extreme situations relating to the responsibility to protect. Despite years of study and public discussion, the United Nations is still far from developing the kind of rapid-response military capacity most needed to handle the sort of rapidly unfolding atrocity crimes referred to in paragraph 139 of the Summit Outcome.
Better modes of collaboration between the United Nations and regional and subregional arrangements are also needed. Moreover, global-regional collaboration is a key plank of UN strategy for operationalizing the responsibility to protect, including for establishing the early warning capability mandated in paragraph 138 of the Summit Outcome, and it deserves our full and unambiguous support.
The UN Secretary recommendations following the 2009 report are laying the grounds for a further development of R2P by focusing on three main aspects: address ways to define and develop the partnerships between States and the international community (under pillar two, “International assistance and capacity-building”), consider whether and, if so, how to conduct a periodic review of what Member States have done to implement the responsibility to protect and determine how best to exercise UN oversight of the Secretariat’s efforts to implement the responsibility to protect.
The idea of making the UN Secretariat accountable for R2P implementation – through annual or biennial reports – creates a mechanism allowing a more rapid development of the concept and opens the door for a better understanding of its implications.
2.2. R2P IN ACTION: DARFUR
The nature of the current conflicts that the international community has to respond to makes it adherent to the R2P development, by all means that is necessary to stop genocide, to respond to the widespread human rights violations and to provide the needed humanitarian assistance.
However, Darfur illustrates a pattern where the international community did not succeed in stopping the killing; it was rather to limit the genocide consequences.
In February 2003, the Sudan Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM) attacked and captured Gulu, the district headquarters of Jebel Marra in central Darfur. This attack internationalized the conflict that has been part of Western Sudan for decades.
Prior to 2003, the conflicts that existed in Darfur which took the nature of inter-racial and inter-ethnic were more about access to local resources – mainly grazing land and water. Equally, they had always been resolved through an established traditional conflict resolution mechanism.
The internationalization of the conflict was not necessarily due to the attack, but more due to the response of the Sudanese government. The government responded to the attack by using its regular armed forces, but failed to restore order in the area, and, therefore, introduced the Janjaweed militia to intimidate and attack the civilian population directly. The use of militia presents an opportunity for the government to disown its actions where such actions have shocked the world. Media reports indicated that at least 300,000 civilians have lost their lives and over 2.5 million people have either been internally displaced or are refugees since the beginning of the conflict in 2003.
And yet the world’s response to Darfur’s crisis was apathetic. Military intervention in Darfur was not even seriously considered until late July 2004, a full year after the outbreak of large-scale violence. An extensive protection force, the African Union (AU) Mission in the Sudan (AMIS), was authorized by the AU on 20 October 2004 and strengthened on 28 April 2005, but its capacity to halt atrocities remained weak. AMIS appeared a grossly inadequate response to the enormous humanitarian disaster. By July 2005, at least 50,000 civilians had been killed in Darfur. Malnutrition and disease had increased the number of casualties to 180,000[3]. Moreover, nearly 2 million internally displaced persons remained in Darfur while more than 200,000 refugees had fled to neighboring Chad[4].
While the AU struggled to assemble its envisaged force, the UN Security Council adopted an ambiguous position. On the one hand, it failed to impose serious sanctions on Sudanese officials and did not publicly contemplate using force to protect civilians or humanitarian aid. On the other hand, it (eventually) placed limited sanctions on specific individuals, authorized an arms embargo and no-fly zone, and took the momentous step of referring the Darfur case to the International Criminal Court (ICC).
Resolution 1556 (2004) imposed a thirty-day deadline for the GoS to comply with the Security Council’s demands and threatened sanctions if it failed to do so. Although there was an emerging Security Council consensus against intervention, the United States continued to push for stronger measures, propelled by its finding that the government and its allies were committing genocide in Darfur. In mid-September 2004 it circulated a draft resolution finding Sudan to be in material breach of Resolution 1556 and calling for an expanded AU force, international overflights to monitor the situation, moves to prosecute those responsible for genocide, a no-fly zone for Sudanese military aircraft, and targeted sanctions (such as travel bans) against the ruling elite. The resulting Resolution 1564 (2004) contained some of these measures but in much-diluted forms. It called for an expanded AU presence, reiterated earlier demands for all sides to respect the ceasefire and for the government to disarm and prosecute the Janjaweed, invited the UN Secretary-General to create a commission of inquiry to investigate reported crimes and indicated the Council’s intention to ‘consider’ further measures if the government failed to comply. Significantly, however, the resolution failed to find Sudan in breach of Resolution 1556, impose measures upon it, or even criticize the government explicitly.
The situation in Darfur deteriorated soon after Resolution 1564 was passed. As noted earlier, evidence grew of AMIS’s inability to protect civilians throughout Darfur or deter renewed clashes between rebels and government forces (see Human Rights Watch 2004).
From this point on the debate about sanctions within the Council was complicated by two further interrelated issues. First, a debate emerged over whether to refer Darfur to the ICC. Second, the conclusion of a Comprehensive Peace Agreement between the Government of Sudan and the SPLM/A started a debate about whether the UN force created to police the agreement, the UN mission in Sudan (UNMIS), would also deploy to Darfur and assist AMIS with its operations.
On 25 January 2005, a UN Commission of Inquiry concluded that while the Sudanese government did not have a policy of genocide, it was implicated in numerous war crimes and crimes against humanity. Nonetheless, the Commission judged that only a competent court would be able to determine whether specific crimes were genocidal.
The report sparked a heated debate about the appropriate venue in which to prosecute accused war criminals. EU states, including the UK, argued that the Security Council should refer the matter to the ICC. The US, on the other hand, argued that the Security Council should create a special tribunal in Arusha to indict and prosecute war criminals. For more than two months, this debate impeded the efforts to create a UN peace operation, as the Europeans insisted on the ICC referral being part of any authorizing resolution. The deadlock was finally broken in late March 2005 when the two issues were decoupled and the Council passed Resolution 1593 referring Darfur to the ICC.
The debate about the role and nature of the UN mission to Sudan was similarly long-winded with states particularly divided over whether UNMIS could be ‘rerouted’ to Darfur. In the end, Resolution 1590 authorized a 10,000 strong peace operation mandated to support the implementation of the Comprehensive Peace Agreement, including (acting under Chapter VII of the UN Charter) the “protection of civilians under imminent threat of physical violence”. The resolution avoided pronouncing on whether UNMIS would be deployed to Darfur and invited the Secretary-General to investigate the types of assistance that UNMIS could offer to AMIS, identifying ‘technical and logistical’ assistance as two potential areas.
Between March and August 2005, less than 1,200 of the authorized 10,000 military personnel had been deployed and it gradually became apparent that UNMIS would not take on much of a role in Darfur. However, the secretary-general had been actively seeking support for months both from individual states and two major regional organizations in the developed world, namely, the EU and NATO, to back up the AU’s military operation[5]. The EU chose to provide a financial support package worth $120 million to AMIS, which covered almost half the costs of the operation. Similarly, NATO decided to airlift additional AU troops to Sudan[6].
No consensus emerged on the question of sanctions, however. In mid-February 2005, the United States circulated a draft resolution coupling UNMIS and oil sanctions. After a protracted round of informal consultations, the US dropped the oil embargo in favour of the imposition of travel bans and asset freezing on suspected war criminals. Russia and China, however, rejected both the asset freezing and the linkage between sanctions and UNMIS. The US revised its draft further, and on 29 March 2005, the Security Council passed Resolution 1591 imposing a travel ban on suspected war criminals.
Along with the debates, at least two of the permanent members (China and Russia) and a number of non-permanent members consistently refused to acknowledge the idea that consideration for human rights should affect sovereignty, despite the very clear evidence that the situation in Darfur was characterized by mass murder, ethnic cleansing and potentially genocide. This raises the question of whether only absolutely clear-cut cases of genocide would elicit Security Council consensus on action.
During this time the African Union force expanded further, but it continued to be ineffective in stopping the violence. Pressure continued to mount for the Security Council to take further action. Rather than mount a military operation that might stop the fighting, however, Western states focused on peace talks leading to an agreement in May 2006 which was not signed by all the parties to the conflict (most rebels factions declined to sign) and did not, in the end, lead to much of a decline in government attacks – not surprising given the duplicity of the government.
The Security Council agreed to expand the mandate of UNMIS to Darfur with Resolution 1706 in August 2006. While referring to the responsibility to protect provisions in the 2005 World Summit outcome document, and providing a Chapter VII mandate to “protect civilians under the threat of physical violence”, it also indicated that the consent of the government would be required. Predictably, the government impeded the progress of this mission and it was never deployed. So, even while recognizing the genocidal (or at least crimes against humanity) nature of the conflict in Darfur, and recognizing the responsibility to protect on the part of the international community, the Security Council failed to implement that responsibility in a robust manner.
In July 2007, after much resistance and dithering, the Security Council has finally approved a mixed AU-UN force – the United Nations-African Union Mission in Darfur (UNAMID). With only a couple of exceptions, the force was comprised of troops from African countries – many of the same countries that contributed to the failed African Union force, due to Khartoum’s opposition. This mission was also confronted with a lack of essential items, with lack of permission from Khartoum to conduct night flights and didn’t deploy more than one third of its strength.
At the time of speaking (October 2010), the situation in Sudan is still under pressure. The UNAMID has 22,000 troops and police deployed and its work it is still hampered by the Sudanese government.
The only palpable result of the international efforts was the deference of Sudan‘s president Omar al-Bashir to the International Criminal Court and its charging for orchestrating Darfur genocide (July, 2010).
However, since Sudan is not a state party to the Rome Statute (which it signed but didn’t ratify), al-Bashir will not face trial in The Hague until he will travel to a country which accepts the ICC’s jurisdiction. Moreover, the Arab League has announced its solidarity with al-Bashir. Since the ICC’s warrant, he has visited Qatar and Egypt. Both countries have refused to arrest him. The African Union also condemned the arrest warrant.
Some analysts also think that the ICC indictment is counterproductive and harms the peace process. Only days after the ICC indictment, al-Bashir expelled 13 international aid organization from Darfur and disbanded three domestic aid organizations.
Based on Darfur illustration, we can generally display one major cause for the failure or limited effects of international community intervention: the lack of the three C’s (consensus, capabilities and cooperation).
The frequent failure of UN Security Council to reach consensus in addressing worldwide human security crisis is determined by the preponderance of national interests in regard to the monitored conflict areas. In the case of Darfur, there were two of the permanent members on the Security Council having interests in the region – on the one hand China, which received 500,000 barrels of oil each day from Sudan and, on the other hand Russia, which was selling arms to the Sudanese government.
The lack of cooperation is a major issue and it especially refers to the cooperation amongst all the capable security actors in addressing a crisis. The lack of a coherent network of relations between, in some cases, hundreds of actors involved in addressing a crisis, has a significant influence on its settlement.
Last but not least, UN looks to member states for capabilities because it does not have its own high-readiness standing force. Having said that, we can imagine the difficulties UN has to face in building a multi-national, multi-cultural and in the same time “coherent” force. Beyond nations’ reluctance to provide troops, UN has to solve also the financial problems connected to the deployment of these troops in the theatres of operations.
References:
Amouyel, Alexandra, „What is Human Security?” (2006), Revue de Sécurité Humaine / Human Security Journal – Issue 1 – April, pp. 10 – 23.
Bannon, Alicia L., (2006) „The Responsibility to Protect: The UN World Summit and the Question of Unilateralism”, The Yale Law Journal 115: 1156–1165.
“Humanitarian Intervention? How Can We Do It Better?” (2001), conference held at Wilton Park, Sussex, U.K., February 19-22.
Kofi Annan, (2000) « Secretary General Salutes International Workshop on Human Security in Mongolia ». Two day session in Ulaanbatar, May 8-10, in Harvard University list of definitions.
Stedman, Stephen J., UN Transformation in an Era of Soft Balancing, International Affairs 83(5): 933–944, 2007.
Tharoor, Shashi, Daws, Sam, (2001), „Humanitarian Intervention: Getting Past the Reefs”, World Policy Journal, Summer.
Bellamy, Alex, (2009), Responsibility to Protect, The Global Effort to End Mass Atrocities, Polity Press.
Legro, Josef, (1977), „Which norms matter? Revisiting the failure of the internationalism”, International Organization, 51(1), p. 33.
UN High Level Panel on Threats, (2004), Challenges and Change, “A more secure world: Our shared responsibility ”, A/59/565, 2 December, par. 203.
Online resources:
UN Secretary General, Kofi Annan, Millennium Report, Chapter 3, pp. 43-44 in Harvard University list of definitions http://www.hsph.harvard.edu/hpcr/events/hsworkshop/list_definitions.pdf;
United Nations Human Development Report, New York , Oxford, Oxford University Press, 1994, http://hdr.undp.org/sites/default/files/reports/255/hdr_1994_en_complete_nostats.pdf .
http://www.allacademic.com/meta/p_mla_apa_research_citation/0/9/8/0/9/p98097_index.html.
[1] www.responsibilitytoprotect.org
[2] High-level Panel on Threats, Challenges and Change Report: A More Secure World: Our Shared Responsibility (December 2004), UN Secretary General’s Report: In Larger Freedom: Towards Development, Security and Human Rights for All (March 2005).
[3] Edith M. Lederer, “Darfur Violence Drops but Rape Persists,” Associated Press, available at
http://news.yahoo.com/news?tmpl=story&u=/ap/20050721/ap_on_re_af/un_sudan_darfur_2 (accessed 22 July 2005).
[4] United Nations, Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004 (Geneva: United Nations, 25 January 2005), p. 3.
[5] United Nations press release, “Secretary-General Welcomes NATO, EU Airlift of African Union Peacekeepers into Darfur; Also Welcomes Resumption of Negotiations on Political Settlement”, UN Doc. SG/SM/9925, AFR/1190, 10 June 2005.
[6] “NATO Considers Helping African Union Force in Darfur,” USA Today, 27 April 2005, available at
www.usatoday.com/news/world/2005-04-27-nato-darfur_x.htm?csp=36.
