The principle of non-intervention is a key aspect of international law. The UN Charter of 1945 states clearly that: ‘Nothing in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state’ (Article 2(7)). This provision applies specifically to UN organs. An exception to the principle of non-intervention is articulated in the Convention on the Prevention and Punishment of the Crime of Genocide, which asserts in Article 1 that ‘genocide, whether committed in time of peace or in time of war, is a crime under international law which [contracting states] undertake to prevent and to punish’. Most countries are party to this treaty. In addition, Chapter VII of the UN Charter allows for the Security Council to ‘determine the existence of any threat to the peace, breach of the peace, or act of aggression’ and to take military or non-military action to ‘restore international peace and security’.
Despite these latter provisions, the response of the international community to genocide and threats to peace has often been erratic and incomplete (Evans, 2006-7). Barber (2009) argues, however, that although there have been significant failures, such as in Somalia in 1993, Rwanda in 1994 and Srebrenica, Bosnia and Herzegovina, in 1995, there has been a gradual expansion in the Security Council’s interpretation of what constitutes a ‘threat to the peace, breach of the peace, or act of aggression’ over the past decades.
What led to the development of the ‘responsibility to protect’?
The experience of Kosovo (1998-1999) was a turning point that resulted in extensive debate about international intervention. After the brutal conflict in Bosnia and Herzegovina, the international community was quick to condemn the violence in Kosovo. Security Council resolutions 1160 and 1199 of 1998 identified the Federal Republic of Yugoslavia (FRY) as the primary culprit and called on the FRY to achieve a political solution. The resolutions stopped short though of a decision to take ‘all necessary measures’ or to authorise member states to do so. In March 1999, following lack of adherence of the Yugoslav side and continued violence, NATO commenced air strikes against Serb forces. After 11 weeks, the defeated Serb troops retreated from Kosovo. NATO justified the military intervention on humanitarian grounds. Although the intervention was viewed as decisive for ending the military conflict in Kosovo and for stopping mass killings and other human rights violations there, NATO’s actions were controversial and considered by some to be a violation of the prohibition of the use of force (Hilpold, 2009).
In the aftermath of Kosovo, many attempts were made to find a legal justification for the intervention. Efforts were also made to determine whether developments in Kosovo amounted to acceptance of ‘humanitarian intervention’ (military action to prevent or end human rights violations, without the consent of the state within whose territory the force is applied) as a legal form of action. Hehir (2009) finds that Kosovo has not resulted in any change in international customary law. Since Kosovo, there has not been any evidence of consistent state practice regarding unilateral humanitarian action. In addition, there is no general acceptance (opinio juris) of such action, evident in the fact that various countries, including China, Russia, India, Japan, Indonesia and South Korea were unsupportive of NATO’s intervention. In the aftermath, 133 states comprising the G-77 declared that they reject the so-called ‘right’ of humanitarian intervention.
In response to the legal deficiencies exposed by Kosovo and NATO’s justification of humanitarian intervention, then UN Secretary general Kofi Annan called for fresh thinking on the issue. In response, the International Commission on Intervention and State Sovereignty (ICISS) published in 2001 its seminal report entitled The Responsibility to Protect. It aims to find some new common ground on issues of humanitarian intervention. The report states that while the responsibility to protect resides first and foremost with the state whose people are directly affected, a ‘residual responsibility’ lies with the broader community of states, and that this residual responsibility is ‘activated when a particular state is clearly either unwilling or unable to fulfil its responsibility to protect or is itself the actual perpetrator of crimes or atrocities’ (p. 17).
How does the ‘responsibility to protect’ differ from ‘humanitarian intervention’?
‘Humanitarian intervention’ and the ‘responsibility to protect’ (R2P) share the conviction that sovereignty is not absolute. However, the R2P doctrine shifts away from state-centred motivations to the interests of victims by focusing not on the right of states to intervene but on a responsibility to protect populations at risk. In addition, it introduces a new way of looking at the essence of sovereignty, moving away from issues of ‘control’ and emphasising ‘responsibility’ to one’s own citizens and the wider international community (Arbour, 2008; Evans, 2006-7).
Another contribution of R2P is to extend the intervention beyond a purely military intervention and to encompass a whole continuum of obligations:
- The responsibility to prevent: addressing root causes of internal conflict. The ICISS considered this to be the most important obligation.
- The responsibility to react: responding to situations of compelling human need with appropriate measures that could include sanctions, prosecutions or military intervention.
- The responsibility to rebuild: providing full assistance with recovery, reconstruction and reconciliation.
How has the concept of R2P been treated?
R2P is referred to in the ICISS report as an ‘emerging guiding principle’, which has yet to achieve the status of a new principle of customary international law (p. 15). The UN High-Level Panel on Threats Challenges and Change endorsed R2P as an ‘emerging norm’ in its report A More Secure World: Our Shared Responsibility (2004, p. 106). R2P as an ‘emerging norm’ was confirmed by the UN Secretary-General’s 2005 report, In Larger Freedom: Towards Development, Security and Human Rights for All, which centred on the idea that threats facing humanity can only be solved through collective action. At the same time, the report acknowledged the sensitivities involved in R2P (p. 35). Also in 2005, the concept of R2P was incorporated into the outcome document of the high-level UN World Summit meeting. Participating member states recognised the responsibility of each individual state to protect its population from genocide, war crimes, ethnic cleansing, and crimes against humanity, as well as a corresponding responsibility of the international community to help states to exercise this responsibility through peaceful means or through collective action should peaceful means prove inadequate. This document was adopted by the General Assembly in its Resolution 60/1 2005 World Summit Outcome (paras 138-139).
The R2P framework has been criticized for not being gender-responsive in that it largely neglects the differing needs and capacities of men and women; and fails to acknowledge that women are disproportionately represented among the poor and marginalized in weak unstable states. Decision-making structures that emphasise the equal participation of women should be incorporated in the framework (Bond and Sherret, 2005).
What is the legal force of R2P and what are challenges to its implementation?
Unlike treaties, General Assembly resolutions are not binding under international law but are solely recommendatory. Nonetheless, Gierycz (2010) argues that the World Summit Outcome document has particularly high political and moral significance since its commitments were undertaken by the world leaders. In addition, it addresses fundamental issues involving the obligation to provide protection from genocide, war crimes, ethnic cleansing and crimes against humanity. These obligations reflect well established rules and principles of IHL and IHRL treaties and customary international law. Arbour (2008) also emphasises that the R2P doctrine rests on an established obligation under international law: the prevention and punishment of genocide as stipulated in the Genocide Convention.
Alongside uncertainty over the legal force of R2P, there are various other challenges involved with its implementation. Bellamy (2006) highlights that the inclusion of R2P in the Outcome Document derived in part from a concession whereby the notion of legitimate intervention without Security Council approval, which was integral to the original ICISS proposal, was dropped in favour of Security Council authorisation (cited in Hehir, 2009). As such, the original notion of R2P has lost a core aspect in its General Assembly adoption.
In addition, the concept of complementarity, whereby the primary responsibility to protect lies with the state and the subsidiary responsibility with the international community, can result in an additional threshold for collective security action. Domestic authorities may invoke their primary responsibility to argue against any exercise of protection by international actors, which may be accepted by the international community. Such was the case in Darfur, where Security Council members claimed that it was premature to impose sanctions against Sudan since the crisis had not reached the stage where the domestic government had demonstrated a clear failure to exercise its responsibility to protect (Stahn, 2007). Further, none of the key documents that endorse R2P provide meaningful guidance on how to deal with violations of the responsibility to protect by states and the international community.
The context of disasters
The devastating effects of cyclone Nargis in Burma and the refusal by the government to allow access to affected populations resulted in arguments to extend the concept of R2P to disaster situations. Some members of the ICISS argued that R2P was not meant to protect people from the impact of natural disasters; whereas others argued that R2P could be invoked if a government’s failure to respond, in the face of immense need and the threat of large-scale loss of life, amounted to a crime against humanity. Collective action was ultimately not adopted in the case of Burma, nor did the UN General Assembly endorse such an expansion in coverage of R2P. Nonetheless, Barber (2009) argues that the concept of R2P could still be important in developing a legal framework for assessing the appropriate role of the international community in the aftermath of natural disaster.
Intervention in Libya: Strengthening or Weakening R2P?
In response to the rapidly disintegrating situation in Libya in 2011, the UN Security Council adopted Resolution 1970 in March, which deplored the gross and systemic human rights violations in the country, called for an end to hostilities and for the observance of human rights, and set in place a number of coercive measures. Resolution 1973 reiterated the responsibility of the Libyan government to protect the Libyan population and authorised coercive military intervention, without the consent of the Libyan government. Two days after this resolution, a military coalition under the umbrella of NATO began bombing Libyan government positions, with the aim of protecting the civilian population against gross human rights abuses. With ensuing concerns of a stalemate between the government and rebels, the goal of the intervention shifted to one of regime change. The subsequent military victory of the NATO coalition was seen as sufficient to conclude that the R2P operation was a success. The intervention was also seen by some to have advanced the cause of R2P: opposing Security Council countries had restrained from using a veto, and swift action had been taken. The intervention has been severely criticised, however, particularly by Security Council members who had abstained from the vote on Resolution 1973, for ‘mission creep’. Had regime change been specified as a goal from the outset, it is unlikely that Security Council endorsement would have materialised. Residual concerns over ‘mission creep’ have been used to explain to some extent why the UN Security Council has failed to act in the case of Syria, despite reports of violations of a scale similar to those in Libya (Zifcak, 2012).