Home The Washington Diplomat June 2011 Will the Responsibility to Protect Usher in New Global Paradigm?

Will the Responsibility to Protect Usher in New Global Paradigm?

Will the Responsibility to Protect Usher in New Global Paradigm?

There is a certain morbid reassurance that the mass murder of nearly a million people has at least made a lasting impression that continues to shape international thinking years later. It was in large part the bitter soul-searching following the world’s failure to prevent the 1994 genocide in Rwanda that gave rise to Responsibility to Protect, or R2P.

Credit: UN Photo / UNHCR / Alexis Duclos
The United Nations estimates that more than 2 million civilians have been caught up in the conflict in Libya, with some 800,000 fleeing to neighboring countries.

This controversial doctrine states that the international community has an explicit duty to act to prevent genocide, crimes against humanity, mass atrocities and ethnic cleansing when individual nations fail to meet these basic obligations of statehood within their own borders.

Since the doctrine was included in the outcome document of the United Nations World Summit in 2005, both proponents and critics of R2P have suggested that this idea is increasingly being cited as justification for actions that reach across borders. And while much of the world’s attention has been focused lately on President Obama’s “doctrine” to more cohesively define U.S. policy in response to the Arab uprisings, R2P quietly offers its own set of guiding principles that could have more far-reaching ramifications as a bold new paradigm for when to use international force.

R2P does say that the international community should first exhaust diplomatic, humanitarian and other peaceful tactics to resolve conflicts before resorting to coercive force. But it’s this last component that has received renewed attention and could very well signify a radical shift in international law that calls into question the very notions of the rights and responsibilities of sovereign states; the role and jurisdiction of the United Nations and other international bodies; and when military intervention is permissible.

But of course, as with any legal issue, there are a wide range of interpretations of what this new doctrine means and what its implications will be. For example, observers continue to debate how R2P relates to the original 1945 U.N. charter, which has traditionally been the basis of statehood, sovereignty and what constitutes a just war.

Significantly, the armed intervention in Libya undertaken earlier this year by an international coalition is the first example of R2P being used as justification for a U.N. Security Council resolution that authorizes military action, though some of the doctrine’s language had been employed in earlier resolutions not authorizing force, most notably during the violence in Kenya that followed the 2007 elections. But R2P’s military component has always been its most controversial aspect. Many experts consider the Libya intervention a test case that will help determine R2P’s future and, perhaps, amend international law as we know it.

Yet it could also open up a Pandora’s box of possibilities that the international community will be grappling with for years to come. If Libya qualifies for an intervention, is Syria next? Why not North Korea then? In an increasingly globalized world, how much responsibility does the world shoulder to protect the people within it?

Charting a New Course?

The original 1945 Charter of the United Nations was intended to “save succeeding generations from the scourge of war” following two World Wars. Its goal was for nations to work collectively to maintain international peace and security, but — significantly — it was based on the principle “of the sovereign equality of all its members.” That meant members were ultimately responsible for what happened within their own borders. R2P challenges that notion.

“In my opinion neither the World Summit document or the intervention in Libya change the U.N. charter, per se, but over a long period of time, and after many different instances where R2P is put to work, what will change is customary international law — the type of law that is established by a long train of practice, a pattern that’s widely shared and engaged in normatively,” said Michael Doyle, a professor at Columbia University who teaches international affairs and international law.

“What we’re talking about is not hard, black-letter law, but R2P is beginning to become a strong norm,” added Doyle, who previously served as assistant secretary-general and special adviser to Kofi Annan.

From its beginnings in the late 1990s, ardent supporters have called R2P an overdue response to the inaction that allowed the genocide in Rwanda. Equally vocal critics have targeted R2P for its perceived shortcomings and oversteps. Since then, R2P has increasingly emerged at the United Nations and has even begun entering discussions among other international bodies such as the International Criminal Court.

Now, with Libya, the Obama administration adopted much of the language of R2P as a predicate to dispense the U.S. military in preventing the mass murder of rebels trying to dislodge longtime ruler Col. Muammar Qaddafi from power. In a remarkably short period, R2P seems to have grown from a rough draft of how a humanitarian mission might be handled to being an accepted principle to guide when and how outside forces ought to intervene in the domestic matters of sovereign states.

“Basically, in about a decade you’ve moved from a situation where sovereignty was king or queen to now where that’s been adapted and reset and rethought,” said Lloyd Axworthy, who helped originate the doctrine of R2P after becoming Canada’s foreign minister in 1996. “We introduced a fairly clear norm or standard in the World Summit in 2005. But now we’re to the point where it’s being implemented, if not in word certainly in deed, and you’re actually getting some international action.”

Axworthy recounted for The Diplomat the environment from which R2P sprang, both in the context of the aftermath of the Rwandan genocide and other world events.

“After the Berlin Wall came down, all the foreign ministers were struggling to figure it out — what’s the new paradigm? The big turning point, of course, was Kosovo,” Axworthy explained. “Very clearly, here was an emerging case of people being murdered or ethnically disintegrated and moved around. Even though we were all very much affected by what happened in Rwanda, all we had to confront this similar situation in Kosovo was a kind of an ad hoc initiative. What we needed was more of a frame — not just, ‘Oh, gosh darn, we can’t let what happened in Rwanda happen in Kosovo.'”

After much dispute and deliberation at the United Nations – lost time that ultimately cost countless lives — the United States ended up bypassing obtaining a U.N. Security Council resolution by forging an armed coalition under the broad principle of humanitarian intervention.

While Axworthy supported the bombing campaign that ensued against the Serbs to stop the ethnic cleansing of Kosovars, he and others fretted that it too had been a slow response and had ultimately ended up flouting the very institution that was meant to deal with international crises — the United Nations.

The following year Axworthy launched the International Commission on Intervention and State Sovereignty to develop a framework that could be used as a basis for the Security Council to quickly authorize effective interventions to prevent the world’s most heinous crimes. The principles that the commission laid out in its 2001 report were based on the concept of “human security,” or a policy of protection for individual people that sometimes could supersede even the U.N.’s mandate to protect the sovereignty of member states.

The Limits of Responsibility

Since its formal adoption in 2005, R2P has faced challenges from what can only be called a collection of strange bedfellows. Russia and China, who have traditionally been stark advocates for state sovereignty, for example, have been reliable detractors on the grounds of non-interference. Developing countries that have historically identified with the non-aligned movement have expressed concern that R2P is a vehicle for permanent members of the U.N. Security Council to manipulate the affairs of less powerful states. This view also tends to be shared by hardened left-wing critics of U.S. foreign policy such as Noam Chomsky. At the other end of the spectrum, some conservatives in the United States see R2P as an attempt to curtail American influence, or even to hijack the country’s ability to decide when to use its unrivaled, and therefore indispensable, military might around the world.

Steven Groves, a fellow at the conservative Heritage Foundation who concentrates on international law and sovereignty, says that his primary problem with R2P is what he calls a jurisdictional creep of the United Nations. “I don’t want committing the United States to a humanitarian intervention to become a requirement instead of a decision that we make based on our own interests,” he said.

“The U.N. charter is silent on humanitarian intervention. It speaks in terms of you’ve got the right to self-defense,” said Groves. “Instead, R2P sets out a series of conditions that would cause the international community to feel as though it has a responsibility to conduct an intervention in a given country. But when it’s time to do that intervention, who’s going to be spending the blood and the treasure? Well, the United States is the only military power that’s capable of getting the job done, so it’s going to be us.”

Like Doyle, the Columbia professor, Groves believes that “the more the United States acts in a way like we did with Libya, the more we lend legitimacy to R2P and the more we are stepping in the direction of making this a recognized international law,” he told us. Except Groves contends that the United States will be in dire straits if R2P somehow becomes customary international law because it has the potential to infringe upon U.S. autonomy and run counter to U.S. interests.

Others argue that R2P is flawed because it has not been, and can never be, applied evenly.

“One of the main problems with R2P is that there is an inevitable selectivity to it,” said Stewart Patrick, a senior fellow at the Council on Foreign Relations and director of the think tank’s Program on International Institutions and Global Governance. “If you look around the world, you wouldn’t say necessarily that the problems confronting civilians in the areas that Qaddafi tried to retake control of are necessarily the most pivotal moral imperatives in the world. Don’t get me wrong; it’s a serious situation. But in the past decade there have been millions of people killed in the Democratic Republic of Congo, multiple atrocities committed in Darfur, major human rights violations in Burma and, arguably, Zimbabwe. So then people argue, why Libya and not this?”

Patrick, who previously worked as a policy planning staff member in the U.S. State Department, said that because of the way R2P is currently formulated, each military action would require authorization by the U.N. Security Council. This implies inevitable constraints. Because of the veto power of China, for instance, it would be a tall order to get approval for any action in Burma or North Korea.

“I think there’s going to be a level of selectivity always in the invocation of this principle,” said Patrick, explaining that there will also be other considerations having to do both with foreign policy and logistics that will limit when R2P can be applied.

If a nation is accused of atrocities but has a formidable military, for example, it will be hard to intervene and risk sparking a bloody war. That in essence means that powerful nations such as Russia and the United States are effectively exempt from R2P since no one will realistically pick a fight with them. Or if major powers are bogged down in other conflicts — as the United States is in Iraq, Afghanistan and now Libya — that will also limit available options, Patrick said.

“In the end, President Obama made the call that just because you can’t act everywhere doesn’t mean that you can’t act anyplace. That’s what he tried to explain to the American people,” Patrick said, adding that although he supports this worldview, the failure of the United States to act significantly in Bahrain, a close American ally, also set a precedent.

“There the situation was less urgent and pressing, but to some degree R2P will be undermined by the perceived hypocrisy of the United States and its coalition partners in the Arab world and other parts of the world where regimes are oppressing civilians,” Patrick said, noting that the United States was reluctant to act because it uses Bahrain as a base for the Navy’s Fifth Fleet. “For instance, if [President Ali Abdullah] Saleh were to dramatically escalate the situation in Yemen in terms of really letting loose on civilian protesters, it would create an excruciating dilemma for the United States now.”

He noted, however, that there are “other levers besides armed intervention that can sometimes be used with R2P as well.” For example, as Syrian President President Bashar al Assad’s regime continues to shoot protesters and crush dissent, Patrick said, “There are things that can be done within the doctrine to inflict pain on Syria without military force, but whether it will ultimately win the day is the question.”

Finding Its Legs

Despite its relative success in becoming common currency in international affairs conversations, the debate against R2P has exploded on multiple fronts.

“You hear it from both sides — from those who think that there will rarely be interventions such as Libya and others who fear the unbounded-ness of R2P,” said Ruti Teitel, a professor of comparative constitutional law at New York Law School and a visiting professor at the London School of Economics. “My view is that there are a variety of other principles and existing law that suggest that we’re inevitably going to be in a case-by-case scenario.”

Teitel, whose forthcoming book “Humanity’s Law” will be available later this year, said she sees certain limitations built into R2P, but ultimately believes its emergence is part of an evolution of legal thought that includes the creation of the International Criminal Court in 2002 and can be traced back even further. “What we’re seeing is a series of precedents from Adolf Eichmann on, where the view that international security is best protected by protecting states’ sovereignty is increasingly yielding to the movement to protect human beings,” she said.

But even as the international community has rolled the dice by introducing the military component of R2P with the Security Council’s authorization of force in Libya, new questions have been raised, such as whether R2P as it is written can ever go far enough to fulfill its original intent.

“This whole operation is supposed to protect civilians, which did happen in Benghazi. But now that we have a war situation, if you’re going to use military force, it’s going to lead to attacks on civilians because that’s what happens in wars,” said Roberta Cohen, a non-resident senior fellow at the Brookings Institution and senior adviser to the Brookings-London School of Economics Project on Internal Displacement.

“The civil war that’s developing in Libya is resulting in civilian casualties and massive displacement. You have a population flow of maybe 800,000 people who have left Libya and crossed into Egypt and Tunisia and some are trying to get to Europe,” Cohen pointed out. “The mission is bigger than what was initially envisaged.”

She argued that there’s a lack of clarity now because the Libyan case is morphing from a humanitarian intervention meant to protect civilians from slaughter into a military mission committed to the overthrow of the Libyan government and setting up a new state — a natural consequence, many experts say, of the fact that the international coalition skirted around the ultimate purpose and endgame of the intervention.

And regime change is not really part of the R2P formula, at least not overtly, but not enough analysis has been done of what it actually means to put R2P into practice, Cohen says. “So now there have been descriptions of what’s gone on in Libya as a half-baked military operation, or as intervention on the cheap,” she said.

Cohen remains a strong supporter of R2P, however, despite having what she calls a critical eye. “Libya should be seen as an effort whereby you learn how to operationalize this concept, where you learn what you can do better or what did you do well,” she said. “It’s not the end of the story. And it shouldn’t be seen as the end of the story.”

Proponents of R2P generally saw it as an encouraging sign that the international community has begun to embrace the doctrine when China and Russia did not use their Security Council veto to scuttle the use of armed force against Libya. Others see the robust action taken in Côte d’Ivoire’s presidential stalemate and possible slide into civil war — whereby the Security Council passed a resolution that was similarly worded to its ruling on Libya only a few weeks earlier and resulted in military action by French and U.N. peacekeepers — as another important marker in the timeline progression for R2P.

Even for its most devout supporters, however, R2P is often viewed as a work in progress.

Axworthy, who helped conceive R2P more than a decade ago, concedes that the doctrine is an imperfect one, but said he is excited it has come this far. Not so long ago, he pointed out, it was very much a revolutionary, outsider idea. He said he hopes R2P will continue to develop and help enshrine the concept of human security so that the world will never see another Rwanda.

“I always use the analogy that it’s like a walking dog,” he said. “It may not be very elegant, but it is walking on hind legs.”

About the Author

Luke Jerod Kummer is a contributing writer for The Washington Diplomat.