THE DILEMMA OF RESPONSIBILITY TO PROTECT AND HUMANITARIAN INTERVENTION: THE WAY FORWARD (EMMANUEL KABUK IPS 6019)

THE DILEMMA OF RESPONSIBILITY TO PROTECT AND HUMANITARIAN INTERVENTION: THE WAY FORWARD (EMMANUEL KABUK IPS 6019) INTRODUCTION Humanitarian intervention (HI) refers to armed interference on the sovereignty of one state by a state or a coalition of states with the objective of terminating or reducing the suffering of the population within the target state; it is aimed at protecting the population from crimes against humanity or natural disasters by creating an environment for freedom from the violations and further humanitarian assistance based on basic needs such as food and water, shelter, health care, security, etc (Rice & Loomis, 2007). The suffering may be the result of humanitarian crises or atrocity crimes such as genocide committed by the occupied nation or state. The goal of HI is the minimization or complete removal of the suffering of the civilian population in the target state. The rationale behind intervention is the belief embodied in international law (IL), in a duty under certain circumstances to play down state s sovereignty in order to preserve humanity (Zuber, 2009). There are contradictions inherent in the concept of HI which are primarily due to lack of clear conditions on the right and responsibility to intervene. This lack of clear conditions has always made it difficult to separate the humanitarian motives from the political or economic interests of the intervening state or powers. Chapters VI and VII of the UN Charter justifies interventions for UN peacekeeping and peace enforcement; while Chapter VIII justifies same for the regional organizations. International responsibility for the protection of human rights and alleviation of human suffering led to the development of requisite international institutions, including the multilateral UN. The UN Declaration of Universal Human Rights in 1948 and the 1

institutionalization of IL may have sent the right message to individuals and states that the international community would hold them responsible for violations of human rights within their domains. This idea by implication placed a heavy burden on the states and individuals alike. The concept further stresses the centrality of the state and the associated norm of sovereignty in international relations (Jeffrey, 2009). Sovereignty is defined as a state s exclusive internal competence and its external equality among states (Fox, 2002). In practice, it essentially means the act of non-interference in the internal affairs of a state by other states irrespective of the motive. This concept has however been challenged by governments and organizations due to developments and changes occasioned by intrastate conflicts, globalization, trade, formation of international organizations (IOs) and non-governmental organizations (NGOs), transnational movements or migration and growth in human rights (HR) advocacy amongst others. As IL governs the relationship between states (Reza, 2009), these developments have introduced new challenges to traditional ideas of IL and international relations. The developments in the field of HR in particular have significantly redefined the idea and powers of the state. The concept of HR seeks to empower the individual as the basis from which state power should flow. It ascribes to the individual certain rights considered inalienable and which states should strive to protect always (UN Declaration of HR, 1948). It is against this background that the concept of the Responsibility to Protect (R2P) emerged. The concept of R2P has no precise universally acceptable definition. However, opinions differ widely on the concept (Jan, 1997) and it has been given different meanings and interpretations by policy makers and scholars (Alvares, 2001). Essentially, R2P is a call for the international community to protect citizens of a state where the state is unwilling, fails or is incapable of 2

protecting its citizens against large scale atrocities (ICRtoP, 2010). The act of protecting the citizens by external forces is what the concept of HI is all about. The concept of R2P was originated in the report of the International Commission on Intervention and State Sovereignty (ICISS), in 2001, and became a central theme in the recommendations of the UN High-Level Panel, A More Secure World, in 2004 and of the UN Secretary-General, In Larger Freedom, in 2005 (ICG, 2009). It was adopted as a resolution of the UN General Assembly during its 60th Session in 2005 following the World Summit outcome (UNSC, 2005). The atrocity crimes against humanity that accompanied the conflicts in Rwanda, Bosnia, Somalia, Kosovo, etc, in the 1990s, led to the concept of the R2P. Like all new phenomena or concepts, R2P came with its challenges. It is therefore not surprising that despite its noble aspirations, it has not enjoyed much success in practical terms. A number of reasons such as unilateralism by some super powers, the issue of hegemony or authority vis-àvis subjectivity or selectivity as well as institutional and political preparedness could be adduced to its lack of success; in addition to these inherent challenges, the concept of R2P also poses unique challenges to some traditional and fundamental concepts of IL such as sovereignty and the principle of non-intervention or non-interference. It is for these reasons that this paper seeks to discuss the concept of R2P, its inherent challenges to sovereignty and the principle of non-interference in relation to IL with a view to proffering the way forward. The paper will look at the basic tenets of R2P and HI, the need for R2P and factors militating against R2P and HI. It will also look at IL, R2P and HI before discussing the way forward on the dilemma of R2P and HI. 3

TENETS FOR R2P AND HI Before the 1990s, the powerful states adduced different reasons centred on humanitarian assistance for embarking on HI when actually the reasons were either political or economic (Thakur, 2007). This was possible because there were no defined conditions or tenets for HI. In R2P, that gap has been bridged. R2P maintains that the responsibility to protect citizens remains that of the States (UNSG, 2009). State sovereignty therefore implies responsibility, and the primary responsibility for the protection of the people lies with the state itself (ICISS, 2009). Where the state is unwilling, fails or is incapable of protecting its people, it has the responsibility to seek for assistance; at this point, the onus is on the international community to protect civilians from mass atrocity crimes such as genocide, mass murder, ethnic cleansing, etc. Responsibility for individual states in this regard means protection to their own citizens and to help other states build their capacity to do so. On the part of the international organizations, including the UN, R2P means the responsibility to warn, to generate effective prevention strategies, and when necessary to mobilize effective reaction. Equally, for civil society organizations (CSOs) and individuals, R2P means the responsibility to force the attention of policy-makers on what needs to be done, by whom and when (ICISS, 2009). The concept of R2P as a guiding principle for the international community, rest on four cardinal objectives; these objectives are first, the obligations inherent in the concept of sovereignty and the responsibility of the Security Council under Article 24 of the UN Charter for the maintenance 4

of international peace and security; second, are the specific legal obligations under human rights and human protection declarations; third are the covenants and treaties on international humanitarian and national laws; and fourth is the developing practice of states, regional and subregional organizations and the Security Council itself (ICISS, 2009). In order to achieve these set objectives, there are three fundamental elements on which the objectives should rest. These elements are first the responsibility to prevent, which is aimed at addressing the root or remote and immediate causes of internal conflict and other man-made crises or natural disasters putting populations at risk; second is the responsibility to react, which is aimed at responding to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases HI; third is the responsibility to rebuild, which is to provide, particularly after a military or HI or natural disaster, full assistance by the UN or CSOs for recovery, reconstruction and reconciliation, addressing the causes of the harm that the intervention was designed to halt or avert. Amongst these elements of prevention, reaction and rebuilding as stated above, prevention remains the most important dimension of the responsibility to protect. This is because prevention options must always be exhausted before contemplating R2P or intervention. This suggests the need for more resources to be devoted by states for peace management as conflict prevention measures. It is essential to also note that military intervention is an exceptional measure and should be warranted by the UNSC only if large scale loss of lives, actual or apprehended, with genocidal intent based on deliberate state action, or state neglect or inability to act, or a failed state 5

situation. Additionally, military intervention should be warranted when large scale ethnic cleansing, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape (ICISS, 2001). Since, atrocity crimes include genocide, ethnic cleansing through starvation, forced expulsion or rape, it is quite evident that R2P falls in the realms of the right to life and the right to livelihood (UN, 1948). This further underscores the role HR has played in the evolution of IL (Reza, 2009). The UN Security Council (UNSC) as the body to authorize military intervention, has laid down procedures for the General Assembly or Regional Organizations to act in case of inaction or delay by the Security Council as precautionary and operational principles that should be employed in the event of need for intervention. The regional and sub-regional organizations have been empowered by Chapter VIII of the UN Charter for the maintenance of regional or sub-regional peace and security. The Chapter asserts that nothing in the UN Charter precludes regional arrangements or agencies from dealing with matters of security that are appropriate for regional action, provided the actions of the regional or sub-regional organization are consistent with the purpose and principles of the United Nations. 1 This dedication by the UN is a shared global responsibility to protect aimed at ensuring that humanity is protected at all times. THE NEED FOR R2P AND HI It is in every country s interest to avoid internal mass atrocity crimes which are capable of attracting R2P or HI. The international community has a shared responsibility to protect the right 1 Conie Peck, The Role of Regional Organizations in Preventing and Resolving Conflict, in Chester A. Crocker et al, Turbulent Peace: The Challenges of Managing International Conflict, pp 561-562. 6

to life and the right to security of the person as contained in Article 3 of the UN 1948 Declaration of the Fundamental Human Rights. R2P and HI also stand to assist states affected by natural disasters. Such states have the responsibility to seek for such humanitarian assistance. Examples are the earthquakes that took place in Haiti, Chile and China on 12 January, 27 February and 14 April 2010 respectively (CNN, 2010); while Haitian government sought for assistance from the international community, the Chilean and Chinese governments handled their situations themselves. In spite of the need for R2P and HI, there are factors that militate against them. FACTORS MILITATING AGAINST R2P AND HI Throughout the 1990s and prior to its introduction in 2001, there were high prospects that R2P will sooner than later become a norm of international relations (Weiss, 2001) and subsequently a customary IL. Prior to its introduction, its forerunner, the right to HI enjoyed initial optimism. This optimism perhaps informed Stanton s argument on HI that a concept was emerging which puts people above government (Stanton, 2003). R2P also enjoyed initial optimism before the USA unilateral intervention in Iraq in 2003 (Thakur, 2007). However, after the intervention by the USA in Iraq, opinions seemed to be less favourable towards the thoughts of the ICISS Report on R2P. The fallout from such unilateralism seemed to be the greatest obstacle against full realization of the objectives of R2P. The non-authorization by UN and its inability to prevent the 2003 invasion of Iraq by the USA was a setback on one of the cardinal pillars of the R2P, which is the UN as the right authority to order such intervention. According to Weiss (2009), the Security 7

Council efforts to control USA actions are beginning to resemble the Roman Senate s attempts to control the Emperor. Similarly, Traub, (2003) argued that diplomats along First Avenue in New York almost unanimously describe the debate surrounding the resolution on R2P withdrawn on the eve of the war in Iraq as a referendum not on the means of disarming Iraq but on the American use of unilateral state power. The situation was better captured by Weiss again when he posited that, today, there are two world organizations, the United Nations, global in membership and the United States, global in power and reach. The unilateralism of the USA on intervention made most countries especially in Africa to begin to wonder if the concept was just a ploy for the bigger or stronger powers to intervene in the internal affairs of smaller or weaker ones. Pieterse, (1997), captured the challenges on HI when he stated that the key problems of HI are the issues of authorization, selectivity, unilateralism and the absence of a general doctrine. Gareth Evans (2008) however argued that the major factors militating against R2P were conceptual challenges borne out of misconceptions, the challenge of institutional preparedness or lack of capacity and the challenge of political preparedness occasioned by dearth of political will. It could however be argued that the problem of doctrine as regard HI has been addressed by the emergence of the R2P concept. However, the inter-related problems of authorization and selectivity still persist. HI authorization under other organizations such as regional bodies also exposes it to regional interests just like the powerful states. On the other hand, UN Security Council authorization equally has to deal with the problem of the hegemony of the permanent members and this often reflects in subjectivity and double standards. 8

Instances such as the Kosovo, Rwanda Cambodia and Bosnia genocides were not met with interventions by either the UN or the USA. In Cambodia, death toll was put at 1.8 to 2.5 million persons, Rwanda estimated death in 1994 were 800,000 in four months, Bosnia, 1992 1995, estimated death put at 100,000 with 1.8 million displaced persons (Marchak, 2008). There were unilateral USA interventions without UN authorization in Haiti, East Timor, Iraq, Nicaragua, etc and now in Afghanistan (Thakur, 2007). Some authorizations come after the deed has been done. This confirms the challenges of selectivity and unilateralism in intervention by the USA based on self interest; the interests could be direct or indirect, economic or political, it could also be a projection of regional power dominance or a noble idea such as democracy (Balazs, 2010). One wonders why the systematic starvation and repression in North Korea and the situation in Myanmar have not led to intervention as espoused in R2P or why the killings in Darfur in western Sudan were not met with intervention from 2003-2007 despite the fact that USA termed the mass killings as genocide. It is worth noting that though the responsibility to prevent is that of the state, the international community need to respond promptly as a preventive measure to help countries to help themselves. Every conflict or potential conflict situation is an actual or potential R2P situation. Therefore, effective prevention of violations could be based on conflict prevention and postconflict reconstruction. It also requires proactive and coordinated diplomatic engagements at critical stages as situations in the conflict go more fragile and reacting swiftly and effectively to massive violations at the point the diplomatic engagements fail. 9

INTERNATIONAL LAW, R2P AND HI The universal basis for a justified intervention in IL has been Chapter VII of the UN Charter which authorizes coercive intervention in the affairs of a state in the case of a threat to international peace and security. Pieterse (1997) had also argued that as long as IL remains anchored in the statist paradigm, no legal basis for intervention will be available outside Chapter VII. Similarly, Adam Roberts (2003) averred that in the current state of international society, there is absolutely no possibility of securing general agreement among states about the legitimacy of R2P and HI; he noted that the issue may continue to remain in a legal obscurity. This submission by Adam Roberts aptly captures the state in which R2P and HI have found themselves today based on the challenges in IL. The foremost concept of IL challenged by R2P is sovereignty; which is the basis of the Westphalian System (Reza, 2009). Prior to R2P, sovereignty has been challenged by other factors like globalization and growth of HR movements, resulting in tremendous increase in traffic across state borders of humans, information, financial and economic resources. According to Strange (1995), actual state sovereignty has been circumscribed by the interstate power differentials and at present has become even more a fiction than it was in 1945 at the creation of the UN. Equally, the clash between Article 2(4) (non-intervention) and Article 1(3) (Promotion of HR) of the UN Charter has also questioned sovereignty in some ways. Consequently, legal arguments have continuously caged the concept of R2P and HI in legal penumbrae. 10

Algerian President Abdelazia Bouteflika summed up the concerns of most leaders who opposed R2P and HI when he said, we do not deny that the United Nations has the right and the duty to help suffering humanity, but we remain extremely sensitive to any undermining of our sovereignty, not only because sovereignty is our last defense against the rules of an unequal world, but because we are not taking part in the decision-making process of the Security Council, (Newland, 2003). Abdelazia s statement is based on the conviction that UNSC decisions on the activation of R2P or HI are probably usually centred on the permanent interests of the powerful states. If the implementation of R2P and HI was not based on selectivity and permanent interests by the powerful states, probably, most leaders would not be scared about its implementation. Drawing from the challenge of sovereignty, R2P and HI also challenges the principle of nonintervention, which is one of the founding principles in Article 2(4) of the UN Charter. Clearly, R2P sets out to introduce new conditions for intervention in a sovereign state in addition to the provisions outlined in Chapter VII of the UN Charter. In fact, despite other challenges to sovereignty and the principle of non-intervention earlier mentioned, R2P remains the most explicit challenge to the concept of sovereignty and the principle of non-intervention. Another challenge is that R2P tend to place NGOs and other non-state actors over the state in contrast to the state-centric norm of IL. As Shaw (1994) puts it, R2P accentuates the emergent global society perspective while challenging the hitherto predominance of the state-centred perspective in international relations. The interplay between the two perspectives was aptly captured by Rosenau (1990) as post-international politics, a term which he used to describe the complex reality of two interactive and overlapping worlds; a state-centric world and a multi- 11

centric world of actors such as corporations, international organizations, NGOs, etc. Rosenau opined that state sovereignty seems less inviolable especially as some NGOs like Amnesty International and Greenpeace and recently, the International Coalition for Responsibility to Protect (ICRtoP), have always insisted on the right to operate across state borders to the extent that NGOs play vital roles in the R2P concept. It could be argued that this thinking elevates international organizations and NGOs over states and promotes the global society perspective at the expense of statist perspective that hitherto dominated international relations. The legal challenges against R2P and HI are many and it appears the arguments for and against them is about to end; and if they do end, R2P stand a better chance of seeing the light of the day. What then is the way forward on the dilemma of R2P and HI? THE WAY FORWARD ON THE DILEMMA OF R2P AND HI The dilemma of R2P and HI could be better addressed by a resort to the principle of prevention. This could be achieved by governments by ensuring that the conditions that would necessitate R2P or HI do not arise. This is possible through effective prevention of human rights violations thereby avoiding the pitfalls of intervention and its antagonism. The success of R2P and HI as operationally effective concepts depends not only on solving the conceptual challenges already highlighted but also by addressing the challenges of institutional and political preparedness. Institutional preparedness could be achieved by building capacities within international institutions especially CSOs, governments, regional and sub-regional organizations. This requires multiple measures at many levels, including stronger mechanisms for early warning and early response. 12

Effective capacity for early warning would also facilitate preventive actions. Additionally, carefully reasoned and appropriately targeted sanctions with effective mechanism to monitor their application especially the employment of civilian capabilities on permanent standby for effective civilian policing would facilitate early warning for guaranteed early response. In cases where the military is required, it is essential to have ready access to trained and formed units capable of rapid response by rapid mobilization and deployment, backed by detailed doctrine and concepts of operations for the protection of civilians as enshrine in UNSC Resolution 1894 (2009) approving R2P. 2 Though the authority to invoke R2P is now supported by SCR 1894, the organization or the nature of the troops to be used has not been specified. Consequently, this is where the United Nations Emergency Peace Service (UNEPS) headed by Dr Robert Zuber 3 could become attractive. UNEPS is an organization that is being designed by a global partnership of NGOs, government representatives and UN officials as a standing, individually recruited, service integrated, gender mainstreamed 4 service that can provide rapid response to outbreaks of genocide, crimes against humanity, and other humanitarian disasters (Zuber, 2009). UNEPS is intended to provide complementary, integrated, first-in and first-out services that underscore human rights, protect civilians and reduce the number, length and cost of more traditional peacekeeping operations that often arrive on the scene too late and with a much too limited mandate to stop the violence effectively. UNEPS is being designed to consist of military, police and civilian components with 2 UNSC Resolution 1894 (2009) approved at the 6216 th meeting, 11 November 2009, for the protection of Civilians during conflicts (AM/PM) sourced at http://www.un.org/news/press/docs/2009/sc9786.doc.htm 18 May 2010. 3 Dr Robert Zuber is the current Director of UNEPS at the UN Headquarters. 4 The UNEPS Gender mainstreaming would meet the UNSC Resolution 1325 of 2000, desire. 13

experts in all fields of peace support operations. The organization is intended to centrally strategize and train all its personnel who are expected to represent all the states that constitutes the UN under a unified command ready for use by the UN. It is designed to be a rapid response organization against atrocity crimes. This organization when and if fully set up, could be an effective coalition tool for immediate and direct use by the UN for HI or R2P. It is vital that UNEPS be set up along regional and sub-regional lines and context having regional and subregional contents. This would also support the desire of Chapter VIII which authorizes regional organizations to act in consistent with the UN principles in the maintenance of regional and subregional peace and security. The challenges of unilateralism and selectivity in intervention by the super powers could be put to rest if UNEPS could be put in place. Human security is also necessary in achieving R2P. Human security means protecting the vital freedoms of the human being. It means protecting people from critical and pervasive threats and situations, building on their strengths and aspirations. It also means creating systems that give people the building blocks of survival, dignity and livelihood. Human security connects different types of freedoms; freedom from want, freedom from fear and freedom to take action on one s own behalf. To do this, it offers two general strategies: protection and empowerment. Protection shields people from dangers. It requires concerted effort to develop norms, processes and institutions that systematically address insecurities. Empowerment enables people to develop their potential and become full participants in decision making. Protection and empowerment are mutually reinforcing, and both are required in most 14

situations. Human security complements state security; it furthers human development and enhances human rights (Commission on Human Security, 2003). Human security complements state security by being people-centered and addressing insecurities that have not been considered as state security threats. It broadens the human development focus with equity. Respecting human rights are at the core of protecting human security. Promoting democratic principles is a step towards attaining human security and development. It enables people to participate in governance and make their voices heard. This requires building strong institutions, establishing the rule of law and empowering people. The state continues to have the primary responsibility for security or to protect its citizens. However, the focus should be on the security of the people; not just protecting them but empowering them to fend for themselves. States are to ensure human security because human security facilitates survival, livelihood and the dignity of the citizens; by extension, human security ensures the stability of sovereignty. 5 Where the citizens are not protected and economically empowered, the situation could lead to grievances and polarization of violence. Therefore, human security becomes a vital state responsibility and a necessary option for conflict prevention by states thereby avoiding the international community s consideration for either R2P or HI. CONCLUSION Governments could avoid the invocation of either R2P or HI in their states by preventing violations of HRs in their domains; this could be achieved by effective institutionalization of democratic tenets and structures. Human security is vital in ensuring that populations do not resort to violent conflicts due to grievances; it ensures the stability of sovereignty. The need for early warning by governments and CSOs to the international community would assist facilitate 5 UN General Assembly Human Security Report of the Secretary General A/64/701, 8 March 2010, available at http://responsibilitytoprotect.org/human%20security%20report%202010.pdf, Sourced 19 May 2010. 15

rapid response and early prevention of HRs violations. UNEPS remains a vital tool for the UN to neutrally address atrocity crimes and violations of the HRs of any population without bias and also without placing NGOs across borders of states thereby violating statist norms. The hegemony of the USA and other super powers could also be checked if UNEPS could be institutionalized by the UN since the super powers would also contribute personnel for the effectiveness of UNEPS. BIBLIOGRAPHY Adam Roberts, (2003), The Road to Hell ; A Critique of Humanitarian Intervention, Harvard International Review, 16 (1), Page 13. Alvares, J, (2007), The Schizophrenias of R2P, Panel Presentation at the Hague Joint Conference on Contemporary Issues of International Law, 30 June, The Netherlands. Balazs, K. (2010), The Nation State, State Weakness and Intra-state War, Class Lecture 21 April, UPEACE Costa Rica. Conie, Peck. The Role of Regional Organizations in Preventing and Resolving Conflict, In: Chester A. Crocker et al (2003), Turbulent Peace: The Challenges of Managing International Conflict, USA Institute of Peace Press Washington D.C. Commission on Human Security Report, (2003), Human Security Now, UPEACE 2010 pp 1 19. Gareth Evans, (2007), Delivering on the Responsibility to Protect: Four Misunderstandings, Three Challenges and How To Overcome Them, Address to SEF Symposium 2007, Bonn, 30 November 2007. Sourced on 18 May 2010 at http://www.crisisgroup.org/home/index.cfm?id=5190&l=1 Hazel Fox, (2002), The Law of State Immunity, in Stacy Humes-Schulz (2009), Limiting Sovereign Immunity in the Age of Human Rights. International Coalition for the Responsibility to Protect (ICRtoP), sourced on 19 May 2010 at http://www.responsibilitytoprotect.org/ 16

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