The concept of Responsibility to Protect and how it changes international law
I would like to start my presentation by quoting one paragraph of resolution 1973 of the United Nations Security Council which has been adopted 17th of March 2011. The resolution is dealing with the humanitarian situation in Libya and is the legal basis for the military intervention in the ongoing Libyan civil war.
“ The Security Coucil (…) Reiterating the responsibility of the Libyan authorities to protect the Libyan population and reaffirming that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians, (…) demands the immediate establishment of a cease-fire and a complete end to violence and all attacks against, and abuses of, civilians.”
In order to understand this concept it is important to outline the context under which it has been developed. Regardless of the fact whether military interventions for purposes of human protection has happened or not, it has always been a controversial issue. When addressing the General Assembly in 1999 and again in 2000, Secretary General of the United Nations Kofi Annan urged the international community to find a consensus on the issue. He asked the international community how they should respond to cases of gross and systematic violations of human rights as it happened in Rwanda or Srebrenica if humanitarian intervention is an unacceptable assault on sovereignty. Subsequently the Government of Canada established the International Commission on Intervention and State Sovereignty. With the participation of various foundations, representatives from different governments and inter-governmental organizations, NGO’s as well as civil society.
In December 2001 the Commission finished its work and released its report. In it they tried to find an answer to the ongoing debate between those who value the norm of humanitarian intervention above state sovereignty and vice versa. The core conclusions of the report state that there are two basic principles:
a) State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself
b) Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the stat in question is unwilling or unable to halt or avert it, the principle of non intervention yields to the international responsibility to protect.
Further, the responsibility to protect, embraces three specific responsibilities:
a) The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk,
b) The responsibility to react: to respond 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
c) The responsibility to rebuild: to prove, 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.
A few years later in September 2005 the United Nations held a World Summit. The concept of RtoP was one of the top-priority topics within the summit. At the end of the high level meeting RtoP is included in paragraph 138 and 139 of the final document affirming the Commissions principle of states responsibility to protect its citizens against the so called “Mass Atrocity Crimes” (i.e. genocide, war crimes, crimes against humanity and ethnic cleansing). It further underlines the role of the international community in assisting the state in protecting its population or to intervene when the national authorities fail in doing so.
In April 2006 a further important step occurred. The UN Security Council adopted resolution 1674 concerning the protection of civilians in armed conflicts and hence it confirms the paragraphs adopted previously in the final document of the UN World Summit. In the text of the resolution the Council stressed a comprehensive approach to the prevention of armed conflict and its recurrence. This was the first time that the Security Council had recognized a set of criteria to form a basis for humanitarian intervention in situations of armed conflict. Subsequently in 2009 Secretary General of the UN Ban Ki-moon released the report namely “Implementing the Responsibility to Protect” where he argued for the RtoP and presented three pillars/core principles:
1) The protection responsibility of the States
2) International assistance and capacity building
3) Timely and decisive response
The Secretary Generals’ report led to a debate in the General Assembly in July 2009. The majority of the present member states at the summit was supportive to the norm and claimed regional organizations such as the African Union to play a crucial role in implementing RtoP as well as the United Nations which should establish early warning mechanism. However, some concerns were voiced concerning the interference in domestic affairs by the international community.
Now let me point out the criticism which arose in regard of the principle of RtoP It has been claimed that this norm allows somehow intrusion into domestic affairs of states which results in infringement into national sovereignty.
Others however affirm that due to the fact that
a) the first pillar of the concept attributes the responsibility to protect its population from mass atrocities to the states
b) the second pillar attributes to the international community the responsibility to help other States fulfilling their responsibility
c) and that the only occasions where the international community will intervene on a State without its consent is when the state is either allowing mass atrocities to occur or is committing them, in which case the State is not upholding its responsibilities as a sovereign state,
the RtoP principle has to be seen as a reinforcing mechanism of state sovereignty.
This argument however leads to another critical point which deals with the question who is deciding when and where to intervene on behalf of the international community according to the principle of RtoP. In the case of the Libyan war, it was the Security Council of the United Nations which led to criticism before, while and after the end of the operation. Some countries perceive the concept of RtoP as a major tool of Western countries legitimizing the intervention in other states domestic affairs.
In conclusion, the RtoP as a principle included in Security Council resolutions which constitutes the legal ground for a military intervention has happened twice in 2011: in the case of Cotè d’Ivoire and Libya. It constitutes a new and innovative norm through which the international community is authorized to intervene in cases where a state fails to protect its citizens from Mass Atrocity Crimes. Military intervention however is seen as a last resort after diplomatically and subsequently more coercive measures have clearly failed. Nevertheless it is also argued that this new concept is a challenge/threat to the territorial sovereignty as a norm of noninterference in the affairs of other nations as outlined in the Peace of Westphalia. Lastly, the question of who is going to decide when the so called “international community” has to intervene is disputable. The decision to which crises the RtoP principle applies is criticized due to the fact that the five permanent members of the Security Council have the option of using their veto when they are somehow affected politically, economically or strategically by the implementation of a resolution based on the norm of RtoP.