Meditations on R2P, 10 Years Later

An assessment of the prospects and challenges to R2P by participants at a University of Ottawa event and the CCIL's 40th annual conference.

JACLYN GIFFEN

Introduction

Responsibility to Protect, or R2P, was a recurring theme at the CCIL's 40th annual conference.  Lloyd Axworthy and Allan Rock met early Friday morning in Ottawa on the 4^th of November to open the conference. Both Mr. Axworthy and Mr. Rock’s comments focused on the 10th anniversary of R2P within international law, reviewing what the term means and how it is developing within the international community. Later in the day, they met with former Secretary General, Kofi Annan, and with BBC correspondent (and native Canadian) Liz Doucet, accompanied by current Member of Parliament, Chris Alexander (Conservative). At this event, sponsored by the University of Ottawa, the panel of impressive speakers, moderated by Ms. Doucet, reviewed the progress, problems and application of R2P within the international community.

What follows highlights points made by these and other participants at the CCIL and uOttawa events.

 

Evolution

In the period after the Fall of the Berlin Wall, there were a myriad of skirmishes and government acts of repression against the people within their countries, embodied by the conflicts within Cambodia, Somalia, Rwanda and others, where the international community failed to do anything to assist the people within those countries who could do nothing to help themselves. Thousands of people died due to the international community being hesitant to intervene in the affairs of their ‘neighbouring’ states. Various excuses were given for the lack of intervention by the United Nations members, including the lack of troops, capacity to do something and the fact that article 2(4) of the UN Charter includes the protection of a nation-state’s sovereignty.[1] However, as the failure of countless governments to protect the rights of civilians continued, it became questionable as to what responsibility the international community had in filling the gap of protection for these people. People started wondering if there should perhaps be a shift away from the protection of states, to an emergence of individual and group rights. Human security became the focus of review. Then Secretary General of the UN Kofi Anan asked the international community to reflect on what the options were if another situation as in Rwanda were to occur.

To review this question, then Canadian Foreign Affairs Minister, Lloyd Axworthy, created the commission to review humanitarian intervention, called the International Commission on Intervention and State Sovereignty (ICISS) in September 2000, and chaired the advisory board. The ICISS’ report of December 2001 developed the term Responsibility to Protect. The basis of this norm was said to be ‘human security’ which gives framework for the protection, in that it has civilians at the centre of its focus. The basic principles outlined in the report are twofold. First, the report says that in order for a state to have sovereignty, it implies an inherent responsibility, and that its primary duty should be for the protection of people which live within the state’s territory itself. Lloyd Axworthy stated emphatically at the panel that “sovereignty is something you earn based on the protection of your people.”[2] Secondly, where a population within a state is suffering serious harm, as a result of a number of different factors, and where that state in question may be unwilling or unable to halt or avert this suffering, then the principle of non-intervention must yield “to the international responsibility to protect.”[3]

The foundations of R2P were also outlined as guiding principles for the international community. These four guiding foundations are: 1 – the obligations inherent in the concept of sovereignty; 2 – the responsibility of the Security Council, under Article 24 of the UN Charter, for the maintenance of international peace and security; 3 – specific legal obligations under human rights and human protection declarations, covenants and treaties, international humanitarian law and national law; and 4 – the developing practice of states, regional organizations and the Security Council itself.

The report also outlined the three specific responsibilities which the responsibility to protect upholds. First is the responsibility to prevent, which means addressing both root causes and direct causes of internal conflict, and other artificial crises that might put populations at risk. Second is the responsibility to react, which directs the international community “to respond in situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention.”[4] Last is the responsibility to rebuild, which means providing full assistance with recovery, reconstruction and reconciliation, and in particular after a situation of military intervention, which is aimed to address the causes of the harm in which the intervention was designed to halt or avert.

The report also outlines principles aimed specifically at military intervention. The most important of these is “The Just Cause Threshold”. The report states that military intervention for human protection is only warranted if serious and irreparable harm is occurring to human beings, or imminently likely to occur, of the following kind: “large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.”[5] However, R2P is not exclusively military intervention. At the panel, they stated that R2P is an emerging norm within the international arena that puts the onus on governments to protect their citizens. However, some crimes are so ‘bad’ that there needs to be intervention involved.

Additionally, since the risk is to “people” in the collective sense, the evolution of this norm has been that since it is individuals who are responsible for the abhorrent actions, thus it will be individuals who will be responsible as individuals and not as state officials. This has been a transformation regarding state immunity in that former government officials will not longer retain impunity for their actions simply because they were following the orders of others.[6]

Problems Identified

In the evolution and application of R2P, there have been many lessons learned which have identified a number of problems. One specific problem highlighted by a number of the speakers is that in cases such as Libya, where part of the problem identified is the regime itself, there is a legal question in what the intervention is authorised to do. How does R2P operate within a legal framework? The Libyan mandate emphasized that they were to protect civilians by all means necessary. R2P does not have at the core of its principles the mandate of regime change. This identifies the problems that occur when the legal branch intersects with the political side.

As Robert Currie reviewed in The Politicization of International Criminal Justice during this year’s CCIL conference, international criminal justice is often used to achieve political goals. There is a symbiotic relationship between law and politics. This can be clearly seen in that people question the true motive of the intervention in Libya, regarding whether the mandate really was aimed at protecting civilians, or if they in fact were targeting regime change for other purposes, such as for the oil resources that are in Libya. Nevertheless, as Kofi Anan questioned, how could the people in Libya have been protected without Gadhafi’s removal?

Robert Currie argued that politics must act in partnership with international criminal law for it to work. He stated that the international legal community in fact must engage politics in order to move the ‘agenda’ forward. Calibrated political decisions are what are necessary.[7]

MP Chris Alexander stated during the panel that he does not believe regime change was part of the Libyan mandate. He explained that under the UN Charter, embodied in Chapter 7, this concept of protecting people stems from the UN Security Council mandate to preserve peace & security. This provides the basis for an intervention mandate, where there is also the political will and capabilities to do so. As Kofi Anan explained, if the protection of civilians must be granted under “all means necessary”, then the international community must ensure that this includes the possible removal of regimes.

The significance of the Libyan referral by the UN Security Council to the International Criminal Court (through resolution 1970)[8] is proof that confidence in the importance of international justice remains. The Libyan referral came prior to the armed conflict and at a time when the protests there were largely peaceful. This could be taken by human rights activists throughout the Arab region as a message that if you engage in peaceful protests, and are attacked by your government, then it will intervene in order to protect those involved. Unfortunately, however, the Security Council does not always act consistently and often defers its decisions to the strategic interests of its permanent members. The political context in Libya was that Gaddafi had become internationally unpopular, making it an easier political decision by the Security Council to intervene there. This demonstrates the political problems when working for international law and justice for the global arena.

During his panel at the CCIL conference, William Schabas argued that the situation is not the same when a regime falls under the protective umbrella of one of the Permanent 5 members of the Security Council. Thus, while Security Council intervention was welcomed in Libya, it may not be a template example for all situations such as in Syria or other places where similar (or worse) atrocities are occurring.

A second problem identified by many of the speakers is the question of NATO and if it should be involved at all within R2P interventions. A related question is if NATO’s involvement in fact de-legitimizes the role of R2P within these types of interventions? Although NATO does have an organized military capacity, considering that the UN is the global representative of the international community, should there instead be a standing, multi-lateral UN military force? There is a question of political will for this creation of a standing UN military force, in addition to potential sources of its funding. In a follow-up with William Schabas on this question, he stated that this idea of a standing UN force is one that has been around for a long time, and he doubts that it is any closer to reality today than it was in 1945. He believes that in discussing the idea of a standing UN force it has the unfortunate consequence of further emphasizing the military dimension of the responsibility to protect. He argues that the use of force should be the very last option when it is even considered, and that its scope must be as limited as possible. He believes that a great deal of harm has been done to the responsibility to protect due to a tendency to reduce it to “sending in the marines”.

The Rwandan genocide was a defining moment in the evolution of R2P and Senator Romeo Dallaire, the head of the UN Peacekeeping mission in Rwanda, has said many times that a robust military force could have prevented genocide and other voices, such as a study by several military experts, have supported his contention.[9]  However, William Schabas believes that the Rwandan genocide could also have been prevented by peaceful means. “The French government, which had quite visibly supported the old Rwandan regime, could have exerted huge political pressure on the Rwandan extremists. The situation is no different from that of the Serb government in Srebrenica,” says William Schabas. “If French President Mitterand had flown to Kigali and told the Rwandan génocidaires that they had crossed a red line when the mass killings began, the genocide would probably have come to an end. Military solutions for R2P frighten many countries away from the concept. They fear that it will be used as a pretext to justify old style gunboat diplomacy… [C]alls for military intervention soon get distilled into a ‘realistic’ recognition that there are only a few armies in the world capable of doing this.”[10]

Dr. Payam Akhavan has also cautioned that equating R2P with the use of force is too narrow of an interpretation and that doing so makes the concept peripheral to most situations where States are unwilling to commit the necessary resources. Dr. Akhavan explains that R2P emerged as a Canadian initiative in the backdrop of the NATO intervention in Kosovo in 1999. He says that most people equate R2P with “humanitarian intervention” through the use of force, as has been exemplified by the UN authorized Libyan aerial campaign in 2011. However, this type of intervention is indeed rare. Dr. Akhavan points to Libya as an “opportunistic target”, and that this is unlike places such as Sudan, and other situations, which he believes have far more serious mass atrocities.

He argues that the most significant aspect of R2P is the “prevention” of genocide or similar mass atrocities, through mechanisms such as early warning and modest measures such as halting hate speech in radio broadcasts that were decisive in the 1994 Rwandan genocide, or preventive deployment of peacekeeping forces in Macedonia, or preventive diplomacy in Burundi which may have averted genocide in the Great Lakes region. Dr. Akhavan argues that the time to act is before violence escalates to the point of mass atrocities, and before the international media and UN Security Council take notice of a situation.  By the latter point it is usually too late, or at least the options are increasingly limited, meaning that the use of force may be the only option available then. He argues that timely intervention is possible since, unlike natural disasters, mass atrocities are the result of political forces that are more predictable. Thus, Dr. Akhavan argues that R2P could be used to the best advantage when it is interpreted through early warning and preventative measures, and not through the use of force. “R2P should be understood such that success is measured by what does not happen; by what never makes the headlines or the crisis agenda of the UN.”[11]

A third problem is the lack of consideration of gender within this discussion. Allan Rock suggested in his panel during the President’s opening plenary at the CCIL conference that establishing a gender framework within the over-arching R2P framework would be a helpful addition to the discourse on R2P. Given that women’s bodies often get caught up within the male-dominated struggles for power, there needs to be particular strategies aimed at the prevention of the harms perpetrated mainly against women. Additionally, women are a strong rebuilding force in that they often work within communities and networks; so if you help one woman, you can help her lift up the community as a whole.

A fourth and final problem, which is yet to be seen in Libya, is the question of re-building. Now that the military phase of intervention is ending in Libya, it remains to be seen if a similar effort will be made by the international community to give highly sought over resources and assistance to the Libyan rebuilding effort. The world is currently in an economic state of recession, and many of the intervening states are already under enormous economic pressures to cut funding within their own countries. However, this phase of R2P is enormously important in that the devastation has left the people there very vulnerable. There is a lack of a legal framework, institutions, little to no food, no protection, and more. If the international community fails in this third phase of R2P, it may endanger the possibility of a long-lasting positive influence of this norm. Additionally, in connection to the first problem, what role should the international community have in rebuilding their system, given the potential political and social problems in interfering with another countries’ culture and beliefs? These questions all remain to be seen and only time can tell the impact intervention will play, both positive and negative.

Next Steps

As Liz Doucet said in her introduction to the Kofi Annan panel, the international community cannot simply stand idly by as atrocities occur. However, given that law and politics are so intertwined, it seems clear that there needs to be a formulation of a framework surrounding the norm of R2P in order for it to have positive and lasting benefits to the international community as a whole. Currently the International Criminal Court is looking into incidents of mass rape on both sides of the conflict. However, will they really hold the interveners responsible for their actions? There is a developing norm of no impunity within the world, for government officials and military heads. However, with the signing of Bilateral Immunity Agreements between American and State Parties to the Rome Statute which brought the ICC into force, impunity has essentially been granted to all US military and peacekeeping personnel. These agreements must be signed by state parties to the ICC on the condition that if they refuse to grant immunity to all American military and peacekeeping workers, that American will remove all funding and aid to that country.[12] This is problematic in that Americans seek to receive justice for their enemies, but refuse to be held to the same standard.

It is also problematic that the decision to intervene is held largely in the hands of a small minority. If the Security Council does not intervene in Syria, as the Assad Government continues killing peaceful protestors, there is a potential to create a double standard in the norm of protection. As William Schabas argued, the Security Council does not always act consistently and politics in this case could interfere with the goals of international justice. If a framework surrounding the norm of R2P does not emerge, there is a risk of the norm of R2P having little to no impact. Time will tell if R2P will continue to get closer to its goals, and bear peaceful and justifiable fruit.

Bibliography

 

JURISPRUDENCE

R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No.3) [1999] 2 W.L.R. 827

 

SECONDARY MATERIAL

Axworthy, Lloyd. “Panel on the 10th Anniversary of R2P” (Centre for International Policy Studies Special Panel, delivered at the University of Ottawa, 4 November 2011). 

Currie, Robert. “The Politicization of International Criminal Justice: So Far, So Good?” (Paper presented to the 40th Annual CCIL Conference in Panel 4A: The Arab Spring and International Criminal Justice, 4 November 2011).

Hoyt, Brian A. “Rethinking the U.S. Policy on the International Criminal Court” (2008) 48 Joint Force Quarterly.

Interview of William Schabas by Jaclyn Giffen (16 November 2011) by email.

Interview of Dr. Payam Akhavan by Jaclyn Giffen (26 November 2011) by email.

Stanton, Gregory H. “Could the Rwandan genocide have been prevented?” (2004) 6 Journal of Genocide Research.

INTERNATIONAL MATERIAL

 

Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7.

UN General Assembly, Rome Statute of the International Criminal Court (last amended January 2002), 17 July 1998, A/CONF. 183/9, (entered into force 1 July 2002) [ICC].

UN Security Council, Peace and Security in Africa, SC Res. 1970, UN SC, 2011, UN Doc. S/Res/1970 (2011). 

GOVERNMENT DOCUMENTS

 

The International Commission on Intervention and State Sovereignty, “The Responsibility to Protect: Core Principles” (December 2001) ICISS.

---

[1] Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7. UN Charter, under the Chapter I Purposes and Principles, article 2(4) states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

[2] Lloyd Axworthy, “Panel on the 10th Anniversary of R2P” (Centre for International Policy Studies Special Panel, delivered at the University of Ottawa, 4 November 2011).   

[3] The International Commission on Intervention and State Sovereignty, “The Responsibility to Protect: Core Principles” (December 2001) ICISS at p. 1.

[4] Ibid.

[5] Ibid, at 3.

[6] See R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No.3) [1999] 2 W.L.R. 827; See also UN General Assembly, Rome Statute of the International Criminal Court (last amended January 2002), 17 July 1998, A/CONF. 183/9, (entered into force 1 July 2002) [ICC], art. 27(1). Article 27(1) provides, “This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.”

[7] Robert Currie, “The Politicization of International Criminal Justice: So Far, So Good?” (Paper present to the 40^th Annual CCIL Conference in Panel 4A: The Arab Spring and International Criminal Justice, 4 November 2011).

[8] United Nations Security Council, Peace and Security in Africa, SC Res. 1970, UN SC, 2011, UN Doc. S/Res/1970 (2011). 

[9] See Gregory H. Stanton, “Could the Rwandan genocide have been prevented?” (2004) 6 Journal of Genocide Research 2.

[10] Interview of William Schabas by Jaclyn Giffen (16 November 2011) by email.

[11] Interview of Dr. Payam Akhavan by Jaclyn Giffen (26 November 2011) by email.

[12] Brian A. Hoyt, “Rethinking the U.S. Policy on the International Criminal Court” (2008) 48 Joint Force Quarterly at 31. A BIA is an agreement in which a member state to the Rome Statute, agrees not to arrest, detain, prosecute, or imprison any U.S. citizen (civilian or military) on behalf of the ICC without the consent of the American Government