What Is The Responsibility To Protect Concept (R2P)?
Introduction
This essay will begin by arguing that the responsibility to protect concept (hereafter R2P) is political in nature, not legal. The is mainly due to the lack of legal liability for the main body responsible for carrying out the duties of R2P, the Security Council, if it fails in those duties. Furthermore, the Security Council is not subject judicial review of actions that it does take. Critics of the concept argue that it can be used as a legitimate justification for states with imperialist intentions, which would make R2P a significantly dangerous tool in international relations. However, in reality R2P’s significance is not that great. The power to authorise military intervention remains with the Security Council, which is …show more content…
not legally bound to act. Even if it wishes to authorise measures against a country, it may be blocked by a veto vote from one of it’s five permanent members. Therefore R2P’s weak legal nature clearly affects it’s significance as a concept. The essay will then move on to argue that the principles upon which the R2P concept is based are established norms of international law. However, it is the first time these principles have been brought together under one concept (R2P) and therefore, the concept itself is an emerging norm. It will finish by arguing that although the Security Council now has a wider power to interpret international situations as being a ‘threat to the peace’ and therefore deserving of military intervention, the concept has not modified Chapter VII powers of the Security Council enough. If the concept is to have any significant and positive effect on the international community then the permanent five members of the Council must abstain from using their veto powers.
Context
Following non-intervention in Rwanda1 and Srebrenica on the grounds that it was an ‘unacceptable’ impeachment on sovereignty, the international community was challenged by Secretary-General Kofi Annan to reach an agreement on how to ‘respond to... gross and systematic violations of human rights.’2
In response to this, Gareth Evans and Mohamed Sahnoun spearheaded the development of the R2P concept and delivered their recommendations in the 2001 ICISS report3 which to tackle the problems with humanitarian intervention and state sovereignty. It proposed changing the idea of state sovereignty from being about ‘power’, to ‘responsibility.’4 This responsibility is primarily the responsibility for the protection of the state’s people by the host state. If the host state fails in this responsibility then the responsibility is shared by the wider international community. The ICISS catagorised the term ‘R2P’ into three pillars: a responsibility to prevent, to react and to rebuild.5
In 2004 the Commission’s proposals were integrated into the Report by the High-Level Panel on Threats Challenges and Change,6 where it was recommended that R2P be understood as an ‘emerging norm,’7 which in this essay’s view is not a wholly accurate label. After this, the concept was again embraced by the UN Secretary-General’s “In Larger Freedom”8 report.
It’s most significant incorporation was in the 2005 World Summit Outcome9 where the discussions of the UN members were organised into a summary of the concept in paragraphs 138 and 139 of the document.10
This essay will examine these documents in order to evaluate the concept’s legal nature, significance, the extent to which it is an emerging norm and the changes it has brought to the Chapter VII powers of the Security Council.
Legal Nature of Responsibility to Protect
For the concept of R2P to have a legal nature, as opposed to a political one, the bodies which have the responsibility of carrying out the duties of the concept must be held legally accountable for their actions or inactions. Article 24 of the Charter sees the Security Council as having the ‘primary responsibility for the maintenance of international peace and security.’11 Therefore, the ICISS considered that ‘there is not better or more appropriate body than the...Security Council to authorise military intervention...it is the Security Council which should be making the...decisions...about overriding state sovereignty.’12
However, the Security Council can not be held legally liable for inaction, or held to judicial review for decisions it does make. None of the documents mention the legal consequences of the Security Council not acting.13 Therefore the international community, including the heads of state and bodies who put together these documents, did not intend for there to be a legal obligation placed on the Council. If the primary body concerned with applying the R2P concept is not legally bound to do so, then the legal nature of the concept is questionable.
Some academics look away from the four documents in order to argue that the concept does in fact have a legal nature and suggest that the ICJ can judicially review the Security Council’s decisions, simply because it is the highest judicial organ of the United Nations14. However, Article 96 of the Chapter on the ICJ in the Charter of the UN states that ‘the Security Council may request the International Court of Justice to give an advisory opinion.’ 15 As the Charter provides only for an ‘advisory opinion’ at the ‘request’ of the Security Council itself, it’s powers to review are clearly restricted. Further support is given to this argument by The Namibia Adivsory Opinion16 which states that the ICJ ‘does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations Organs.’17
If the Security Council does authorise action then Kalkman18 argues that there is in fact a legal liability which falls on states. This argument is based on the Genocide Convention19 where it is clear that states party to the Convention agree that they have a legal obligation to intervene in cases of genocide.20 However there is no evidence to appease the idea that this legal nature stretches beyond cases of genocide. Kalkman’s argument is therefore limited to genocide cases, and considering that when no state decided to intervene in Rwanda when genocide was actually being committed and no action was taken against any state, it is unfortunately purely an academic one at the moment.
If states are not legally liable to act even if authorisation is given by the Security Council, one must consider what factors will influence a state’s decision to intervene and carry out it’s responsibility to protect. Evans and Sahnoun21, who were at the helm of the ICISS report, talk of the need to muster the ‘political will’ of states in order to guarantee action because of the absence of legal repercussions.22 ‘Political will’, they argue, can be conjured using: moral appeals, financial appeals, national interest such as the avoidance of refugee outflows and national economic interests. This suggests that because states base their decisions on whether they will abide by their ‘responsibility’ to protect on these political considerations, and not because they are bound to by law, R2P is more political in nature than legal.
Furthermore, the opinions of state representatives such as the US ambassador John Bolton, who voiced the US’s insistence that the concept to be defined as a ‘moral responsibility’ as opposed to a ‘legal obligation’,23 is reflected in paragraph 139 which states ‘we are prepared to take collective action...on a case-by-case basis...as appropriate.’24 The phrase ‘we are prepared’ suggests that states see the R2P concept as a voluntary right rather than a mandatory obligation to act. The fact that politically powerful countries such as the USA could influence the core of the concept during discussions furthers the argument that R2P has a political nature.
Therefore, the body responsible for carrying out the duties of R2P, the Security Council, is not subject to judicial review with respect to it’s decisions (or lack of decision) nor are there any sanctions for inaction by states if the council does authorise intervention. Furthermore, the fact that states need to have their ‘political will’ strengthened in order for them to intervene clarifies that the concept has a political rather than legal nature.
How Significant is the R2P Concept?
The significance of R2P could potentially take two forms; it can be a significant tool to help stop genocide and other atrocities, or on the other hand it can be a weapon open to abuse from nations with imperialist intentions. However, the weak legal nature of R2P means that this danger is not as significant as first thought because, outside of Security Council authorisation (which it is not legally obliged to give), the use of force to intervene by states is illegal.
Critics of the R2P concept see it as a ‘trojan horse’ for imperialism.25 Alex de Waal26 for example warns of the dangers of developing the doctrine of humanitarian intervention into R2P as it could become a legitimate ‘charter for imperial occupation,’27 with states intervening unilaterally. For example, the R2P concept was cited by Jack Straw and President Bush when justifying their 2003 invasion of Iraq28 and Alverez contends that this, among other examples, is an “opportunistic application of R2P’ by ‘false friends.”29 This suggests that R2P can and has been manipulated to serve the interests of certain states and if this is the case then it could indeed be very significant, but for the wrong reasons.
Governments such as Algeria and Egypt30 have highlighted their concerns over this issue by arguing that R2P is nothing more than a legalisation of employment of unilateral force without the authorisation of the Security Council. Alverez agrees, and warns further that the ‘old-fashioned notions of un-impeachable sovereignty and non-intervention’ should not be cast away so quickly at a time when hugely powerful nations such as the USA are so ready and willing to use force ‘anywhere and everywhere.’ 31 These fears stem from the ICISS’s report in particular which is very open to means of intervention without Security Council authorisation. It proposes a tiered system of responsibility, starting with the host state and moving on to the Security Council. If the state fails to act then it suggests that other states may approach the General Assembly, then the regional organisations and lastly the individual states.32 The significance of this is the risk of making it too easy for superpowers with ‘imperialist’ intentions to use unilateral military intervention as they have many options if the Security Council fails to deliberate.
However, the ICISS report was a very early conceptualisation of R2P, and the concept has since undergone a significant transformation. The fact that the ICISS report was so open to intervention that wasn’t authorised by the Security Council was never going to be universally accepted. Therefore when the world leaders grouped together in 2005 at the World Summit, unilateral intervention was all but disposed of. There is no mention of allowing use of force without Security Council authorisation in either paragraph 13833 or 139 of the Summit document. In fact, in paragraph 139 the UN members stress that ‘we are prepared to take collective action...through the Security Council.’ 34 This deliberate omission of any other option for taking collective action other than through the Security Council suggests that the UN members at the summit intend the use of unilateral use of force to be illegal, contrary to what the ICISS suggested.
In protecting against the threat of ‘imperialism’ by putting the responsibility for authorising the use of force back solely with the Security Council, the R2P concept’s significance has been altered in another way.
The principle that has emerged from the World Summit was rightly described by Thomas Weiss35, the director of research in the original ICISS report, as ‘R2P lite’36 because of how restricted the legal use of force is outside Security Council authorisation. This essay agrees with that description. The nature of the atrocities that the R2P concept is supposedly in existence to stop require military intervention because events such as genocide are violent, force driven events which must be countered with force. If use of force can only be authorised by the Security Council, which is only ‘prepared’ to act and can not be held to judicial review for inaction, then there is a danger that the concept will be ineffective if the Council decides not to authorise the use of force. The only options left for states would be diplomatic ones, leaving the concept significantly less able to counter atrocities than it’s creators would have hoped. It is therefore clear that R2P’s weak legal nature has had serious consequences on it’s significance as a concept that has the ability to prevent genocide and other war
crimes.
The R2P concept therefore has the potential to be a significant and effective one, but it is restricted. Kalkman is accurate in describing it as ‘a blunted weapon, incapable of resolving situations in need of militaristic intervention when the Security Council fails to intervene.’37 This is because the significance of the R2P concept has been watered down by the weak legal nature of the concept, as states cannot use force outside of the Security Council’s authorisation which it is not legally bound to give.
Extent to which R2P is an Established Norm of International Law
Article 38 of the Statute of the ICJ describes established norms of international law as ones which carry ‘evidence of a general practice accepted as law.’38 Therefore, the extent to which R2P is an established norm within international law depends on how generally accepted it is as law within the international community.
The High-Level Panel Report refers to the R2P concept that emerged from the ICISS report as ‘a relatively new emerging norm...not yet deep-rooted.’39 This essay is of the opposite opinion, that the R2P is made up of principles which have ‘deep-rooted’ foundations generally ‘accepted’ in international law. It is these principles which have been collected and placed under one name in order to cover the ‘past ghost’ of humanitarian intervention.40
The problem with humanitarian intervention was that states could pick and choose when to exercise their ‘right’ to intervene. For example, the Security Council failed to address the genocidal problems in Rwanda until it was too late. The international community justified it’s position by saying that humanitarian intervention was an unacceptable impeachment on state sovereignty. In order to solve this problem the ICISS re-characterised the meaning of sovereignty from ‘control’ to ‘responsibility.’41 The effect is twofold, in that there is now a responsibility for states to protect their own civilians and if they fail to do this, the duty to intervene falls to the international community.
Evans and Sahnoun argue along the same lines as Arbour42 in suggesting that this ‘sovereignty as responsibility’ principle within R2P is not yet customary international law, but a ‘de facto emerging norm.’43 However, Stahn44 cites Hugo Grotius who had a profound influence on international law and was writing as far back as the 1500’s, as arguing that the organisation and behavior of states exists for the benefit of the citizens that reside within it. This suggests that the state owes responsibility to the citizen, which is the basis of sovereignty within the meaning of R2P. The link between state ‘sovereignty’ and ‘responsibility’ appeared more recently when Deng and other academics45 used it to argue that states had a duty to afford assistance to Internationally Displaced People, suggesting that the states very existence is to serve the citizen, and that the citizen trusts the state to do so. This idea of ‘trust’ between the two parties also appears in John Locke’s contract theory where he talks about the relationship between the state and the citizen as one of ‘trust,’ which if breached renders power ‘back into the hands of those who gave it’ (the citizens).46 This suggests that in international law states and citizens are in a relationship of ‘trust’, and that ‘trust’ is breached if the state fails in it’s responsibility to carry out it’s duties.
It is not just the principle of ‘sovereignty as responsibility’ which is an established norm of international law. The principle of a duty to intervene by the wider international community if the host state fails in it’s responsibility also enjoys ‘deep roots’ in international law. In the Islands of Palmas Case47, it was stated that ‘territorial sovereignty...has...an obligation to protect within the territory and rights of other states.’48
More recently, the Constitutive Act of the African Union, Article 4 (h)49 imposes a duty on the signatories of the act to intervene in cases of ‘war crimes, genocide and crimes against humanity.’50 This is the same basic foundation upon which R2P is built, in that if a sovereign state fails in it’s responsibility to protect it’s people then it loses that primary status of sovereignty, and the duty to intervene is expanded externally on the signatories of the Act. Although this is only a regional document, it nonetheless has an international element because fifty three states are parties to it.
Furthermore, the three stages of R2P described in the ICISS report: the responsibility to prevent, to react and to rebuild,51 are also established norms in international law. The idea of the international community having this thorough responsibility; to prevent the atrocities from happening in the first place all the way through to rebuilding states to ensure they do not reoccur after, can be traced back to early post Cold War times. In his well respected and significant document ‘An Agenda for Peace,’ the then Secretary-General Boutros-Ghali 52 wrote of the need to implement both preventative diplomacy and post-conflict peace building.
Therefore the extent to which R2P is an established norm of international law depends on how one looks at the concept. It is clear that the individual principles upon which R2P is founded are generally ‘accepted’ practices within international law. They have been consistently cited by academics, regional treaty drafters and by international courts. However, it is true that the concept itself is the first time all these principles have been brought together under an umbrella term of R2P.
How has the R2P Concept Modified the Chapter VII Powers of the Security Council
Chapter VII of the UN Charter53 allows for the Security Council to authorise the use of force by ‘air, sea or land’ under article 42 if non-military (peaceful) measures adopted under article 41 are ‘inadequate or have proved to be inadequate.’ 54It is one of two exceptions to the rule under Article 2(4)55 that the use of force is prohibited within international relations. Article 39 gives the Council right to authorise such measures if they determine that ‘the existence of any threat to the peace, breach of the peace, or act of aggression’ to be of the extent that it requires such measures to ‘maintain and restore international peace and security.’56 Paydandeh argues that under R2P and especially after the Cold War, the Security Council has started to interpret ‘any threat to the peace’ to include any human rights violations. 57 This clearly widens the scope of what the Council will consider a threat to peace when deciding whether to grant authorisation for use of force, and indeed it decided to refer to the human rights violations in Rwanda,58 Somalia59 and East Timor60 as such threats to peace. Therefore, as a result of R2P, the Security Council’s Chapter VII powers have been widened quite extensively in terms of what situations which it can legitimately label a ‘threat to the peace’ and therefore authorise military action against under Article 39.
Furthermore, the Council’s power to use peaceful methods under article 41 may have also been modified slightly. Article 41 states the the Security Council ‘may’ use measures ‘not involving the use of armed force.’61 The word ‘may’ indicates that it is not under a legal obligation to do so and they can in fact take no measures, with the P5 veto powers reinforcing that freedom. For example, Russia and China both recently vetoed a Council resolution that would have threatened sanctions against Syria’s leadership.62 However, following the ICISS report it was recommended that the P5 members of the Security Council abstain from casting their veto in times when the Council is deliberating passing resolutions with respect to cases of genocide or other human rights violations. 63 This would modify the Council’s power under article 41 of Chapter VII because it would make it much more likely that the Council would in fact invoke it’s right to act instead of there always being a threat of inaction because of one or more members of the P5 casting their veto.
However, the ICISS recommendation that the P5 members of the Council should refrain from using their veto to block international action was completely ignored by the World Summit Outcome document. This leaves open the danger of revisiting a situation like Syria where Security Council action was blocked by veto. Considering that the Outcome document only allows for intervention authorised by the Security Council, the R2P concept seems to end up back where it started with no other options available if the Council decides not to act or is blocked from doing so.
Evans and Sahnoun argue that the Council’s powers need to be modified more if it is to be an effective avenue through which to ensure the R2P concept works well, saying that there is a need ‘to make the council work better than it has’64 reiterated the need for the P5 members to refrain from using their veto powers, although as stated this was not adhered to. There is clearly a need for the Security Council to make swift decisions where there are gross human rights violations. Only then will the Security Council be able to fulfill the vision of R2P effectively, which is to avoid mass atrocities such as Kosovo or Rwanda ever happening again. However, the current situations means that although the Council now has the power to more broadly interpret which situations constitute a ‘threat to the peace’ and therefore merit authorisation for intervention, there is still the danger that this process will take too long or will never actually materialise.
Conclusion
To conclude, this essay asserts that responsibility to protect is a political concept which has had it’s significance within the international community weakened by the fact that military authorisation remains at the discretion of the Security Council. The various principles that the concept is based on are established norms within international law but the concept itself, as a combination of these principles, is still an emerging norm. The Chapter VII powers of the Security Council have been modified to the extent that the Council may now widely interpret what constitutes justification for authorising military action or other measures. However, more changes are needed, specifically with respect to removing the veto powers of the permanent five members, if the R2P concept is to become an effective and significant weapon in the battle against grave atrocities on mankind.
Bibliography
1.) Articles / Books
Arbour L, ‘The Responsibility to Protect as a Duty of Care in International Law and Practice,’ Review of International Studies [2007] Vol.34, 445
Bellamy A, ‘Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention after Iraq’ [2006] Ethics and International Affairs, 31
Boutros-Ghali B, ‘An Agenda for Peace, Preventive diplomacy, peacemaking and peacekeeping’ A/47/277 - S/24111 (1992)
Brownlie I, Principles of International Law, 8th Edn, Oxford University Press (2012)
Cohen J, One-hundred Days of Silence: America and the Rwanda Genocide, 1st Edn, Rowman & Littlefield Publishers (2006)
Deng F M, Kimaro S, Lyons T, Rothchild D and Zartman W, Sovereignty as responsibility: conflict management in Africa, Brookings Institution Press (1996)
Evans G and Sahnoun M, ‘The Responsibility to Protect’ [2002] Foreign Affairs, Vol.81, No.6, 99
Kalkman M, ‘Responsibility to protect: a bow without an arrow’ [2009] Cambridge Law Review 75
Kennedy R F, Note, “Libya v. United States: The International Court of Justice and the Power of Judicial Review” 33 (1993) Va. J. Intl. L. 899, 913.
Locke J, The Second Treatsie of the Government, Chapter XIII, sect. 149 (1689)
Payandeh M, ‘With Great Powers Comes Great Responsibility? The Concept of the Responsibility to Protect Within the Process of International Lawmaking’ Yale Journal of International Law, Vol. 35 495
Stahn C, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ [2007] American Journal of International Law, Vol 101
Waal A, ‘No Such Thing as Humanitarian Intervention: Why We Need to Rethink How to Realize the "Responsibility to Protect" in Wartime’ [2007] Havard International Review
Weiss T, ‘R2P After 9/11 and The World Summit’ [2006] Wisconsin International Law Journal, Vol. 24
2.) Case Law
Island Palmers Case, (Netherlands v USA) Reports of International Arbitral Awards Vol.II 829 1925
Legal Consequences for States of the Continued Presence of South Africa In Namibia (South West Africa) notwithstanding Security Council Resolution 276 (Advisory Opinion), I.C.J Reports 1971
3.) Treaties
The Constitutive Act of the African Union 2000
Charter of the United Nations 1945
Convention on the Prevention and Punishment of the Crime of Genocide 1951
4.) Other
Annan Kofi, “‘We the Peoples’ The Roles of the United Nations in the 21st Century’, Chapter IV ‘Freedom From Fear’ Report (2000)
Alverez J, ‘The Schizophrenias of R2P’ (Panel Presentation, Hague Joint Conference on Contemporary Issues of International Law: Criminal Jurisdiction 100 Years After the 1907 Hague Peace Conference, The Netherlands, 30 June 2007)
ICISS Report 2001
Outcome Document 2005
Report of the General Secretary’s High Panel 2004
Report of the General Secretary, In larger freedom: towards development, security and human rights for all 2005
Responsibility to Protect Website accessed 17 April 2013
Security Council Resolutions, accessed via
Straw J, ‘We are in Iraq to Bring about Democracy,’ (Labour Party Conference, Brighton, 28 September 2005), accessed 7th May 2013
United Nations Website accessed 27 April 2013
This essay will begin by arguing that the responsibility to protect concept (hereafter R2P) is political in nature, not legal. The is mainly due to the lack of legal liability for the main body responsible for carrying out the duties of R2P, the Security Council, if it fails in those duties. Furthermore, the Security Council is not subject judicial review of actions that it does take. Critics of the concept argue that it can be used as a legitimate justification for states with imperialist intentions, which would make R2P a significantly dangerous tool in international relations. However, in reality R2P’s significance is not that great. The power to authorise military intervention remains with the Security Council, which is …show more content…
not legally bound to act. Even if it wishes to authorise measures against a country, it may be blocked by a veto vote from one of it’s five permanent members. Therefore R2P’s weak legal nature clearly affects it’s significance as a concept. The essay will then move on to argue that the principles upon which the R2P concept is based are established norms of international law. However, it is the first time these principles have been brought together under one concept (R2P) and therefore, the concept itself is an emerging norm. It will finish by arguing that although the Security Council now has a wider power to interpret international situations as being a ‘threat to the peace’ and therefore deserving of military intervention, the concept has not modified Chapter VII powers of the Security Council enough. If the concept is to have any significant and positive effect on the international community then the permanent five members of the Council must abstain from using their veto powers.
Context
Following non-intervention in Rwanda1 and Srebrenica on the grounds that it was an ‘unacceptable’ impeachment on sovereignty, the international community was challenged by Secretary-General Kofi Annan to reach an agreement on how to ‘respond to... gross and systematic violations of human rights.’2
In response to this, Gareth Evans and Mohamed Sahnoun spearheaded the development of the R2P concept and delivered their recommendations in the 2001 ICISS report3 which to tackle the problems with humanitarian intervention and state sovereignty. It proposed changing the idea of state sovereignty from being about ‘power’, to ‘responsibility.’4 This responsibility is primarily the responsibility for the protection of the state’s people by the host state. If the host state fails in this responsibility then the responsibility is shared by the wider international community. The ICISS catagorised the term ‘R2P’ into three pillars: a responsibility to prevent, to react and to rebuild.5
In 2004 the Commission’s proposals were integrated into the Report by the High-Level Panel on Threats Challenges and Change,6 where it was recommended that R2P be understood as an ‘emerging norm,’7 which in this essay’s view is not a wholly accurate label. After this, the concept was again embraced by the UN Secretary-General’s “In Larger Freedom”8 report.
It’s most significant incorporation was in the 2005 World Summit Outcome9 where the discussions of the UN members were organised into a summary of the concept in paragraphs 138 and 139 of the document.10
This essay will examine these documents in order to evaluate the concept’s legal nature, significance, the extent to which it is an emerging norm and the changes it has brought to the Chapter VII powers of the Security Council.
Legal Nature of Responsibility to Protect
For the concept of R2P to have a legal nature, as opposed to a political one, the bodies which have the responsibility of carrying out the duties of the concept must be held legally accountable for their actions or inactions. Article 24 of the Charter sees the Security Council as having the ‘primary responsibility for the maintenance of international peace and security.’11 Therefore, the ICISS considered that ‘there is not better or more appropriate body than the...Security Council to authorise military intervention...it is the Security Council which should be making the...decisions...about overriding state sovereignty.’12
However, the Security Council can not be held legally liable for inaction, or held to judicial review for decisions it does make. None of the documents mention the legal consequences of the Security Council not acting.13 Therefore the international community, including the heads of state and bodies who put together these documents, did not intend for there to be a legal obligation placed on the Council. If the primary body concerned with applying the R2P concept is not legally bound to do so, then the legal nature of the concept is questionable.
Some academics look away from the four documents in order to argue that the concept does in fact have a legal nature and suggest that the ICJ can judicially review the Security Council’s decisions, simply because it is the highest judicial organ of the United Nations14. However, Article 96 of the Chapter on the ICJ in the Charter of the UN states that ‘the Security Council may request the International Court of Justice to give an advisory opinion.’ 15 As the Charter provides only for an ‘advisory opinion’ at the ‘request’ of the Security Council itself, it’s powers to review are clearly restricted. Further support is given to this argument by The Namibia Adivsory Opinion16 which states that the ICJ ‘does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations Organs.’17
If the Security Council does authorise action then Kalkman18 argues that there is in fact a legal liability which falls on states. This argument is based on the Genocide Convention19 where it is clear that states party to the Convention agree that they have a legal obligation to intervene in cases of genocide.20 However there is no evidence to appease the idea that this legal nature stretches beyond cases of genocide. Kalkman’s argument is therefore limited to genocide cases, and considering that when no state decided to intervene in Rwanda when genocide was actually being committed and no action was taken against any state, it is unfortunately purely an academic one at the moment.
If states are not legally liable to act even if authorisation is given by the Security Council, one must consider what factors will influence a state’s decision to intervene and carry out it’s responsibility to protect. Evans and Sahnoun21, who were at the helm of the ICISS report, talk of the need to muster the ‘political will’ of states in order to guarantee action because of the absence of legal repercussions.22 ‘Political will’, they argue, can be conjured using: moral appeals, financial appeals, national interest such as the avoidance of refugee outflows and national economic interests. This suggests that because states base their decisions on whether they will abide by their ‘responsibility’ to protect on these political considerations, and not because they are bound to by law, R2P is more political in nature than legal.
Furthermore, the opinions of state representatives such as the US ambassador John Bolton, who voiced the US’s insistence that the concept to be defined as a ‘moral responsibility’ as opposed to a ‘legal obligation’,23 is reflected in paragraph 139 which states ‘we are prepared to take collective action...on a case-by-case basis...as appropriate.’24 The phrase ‘we are prepared’ suggests that states see the R2P concept as a voluntary right rather than a mandatory obligation to act. The fact that politically powerful countries such as the USA could influence the core of the concept during discussions furthers the argument that R2P has a political nature.
Therefore, the body responsible for carrying out the duties of R2P, the Security Council, is not subject to judicial review with respect to it’s decisions (or lack of decision) nor are there any sanctions for inaction by states if the council does authorise intervention. Furthermore, the fact that states need to have their ‘political will’ strengthened in order for them to intervene clarifies that the concept has a political rather than legal nature.
How Significant is the R2P Concept?
The significance of R2P could potentially take two forms; it can be a significant tool to help stop genocide and other atrocities, or on the other hand it can be a weapon open to abuse from nations with imperialist intentions. However, the weak legal nature of R2P means that this danger is not as significant as first thought because, outside of Security Council authorisation (which it is not legally obliged to give), the use of force to intervene by states is illegal.
Critics of the R2P concept see it as a ‘trojan horse’ for imperialism.25 Alex de Waal26 for example warns of the dangers of developing the doctrine of humanitarian intervention into R2P as it could become a legitimate ‘charter for imperial occupation,’27 with states intervening unilaterally. For example, the R2P concept was cited by Jack Straw and President Bush when justifying their 2003 invasion of Iraq28 and Alverez contends that this, among other examples, is an “opportunistic application of R2P’ by ‘false friends.”29 This suggests that R2P can and has been manipulated to serve the interests of certain states and if this is the case then it could indeed be very significant, but for the wrong reasons.
Governments such as Algeria and Egypt30 have highlighted their concerns over this issue by arguing that R2P is nothing more than a legalisation of employment of unilateral force without the authorisation of the Security Council. Alverez agrees, and warns further that the ‘old-fashioned notions of un-impeachable sovereignty and non-intervention’ should not be cast away so quickly at a time when hugely powerful nations such as the USA are so ready and willing to use force ‘anywhere and everywhere.’ 31 These fears stem from the ICISS’s report in particular which is very open to means of intervention without Security Council authorisation. It proposes a tiered system of responsibility, starting with the host state and moving on to the Security Council. If the state fails to act then it suggests that other states may approach the General Assembly, then the regional organisations and lastly the individual states.32 The significance of this is the risk of making it too easy for superpowers with ‘imperialist’ intentions to use unilateral military intervention as they have many options if the Security Council fails to deliberate.
However, the ICISS report was a very early conceptualisation of R2P, and the concept has since undergone a significant transformation. The fact that the ICISS report was so open to intervention that wasn’t authorised by the Security Council was never going to be universally accepted. Therefore when the world leaders grouped together in 2005 at the World Summit, unilateral intervention was all but disposed of. There is no mention of allowing use of force without Security Council authorisation in either paragraph 13833 or 139 of the Summit document. In fact, in paragraph 139 the UN members stress that ‘we are prepared to take collective action...through the Security Council.’ 34 This deliberate omission of any other option for taking collective action other than through the Security Council suggests that the UN members at the summit intend the use of unilateral use of force to be illegal, contrary to what the ICISS suggested.
In protecting against the threat of ‘imperialism’ by putting the responsibility for authorising the use of force back solely with the Security Council, the R2P concept’s significance has been altered in another way.
The principle that has emerged from the World Summit was rightly described by Thomas Weiss35, the director of research in the original ICISS report, as ‘R2P lite’36 because of how restricted the legal use of force is outside Security Council authorisation. This essay agrees with that description. The nature of the atrocities that the R2P concept is supposedly in existence to stop require military intervention because events such as genocide are violent, force driven events which must be countered with force. If use of force can only be authorised by the Security Council, which is only ‘prepared’ to act and can not be held to judicial review for inaction, then there is a danger that the concept will be ineffective if the Council decides not to authorise the use of force. The only options left for states would be diplomatic ones, leaving the concept significantly less able to counter atrocities than it’s creators would have hoped. It is therefore clear that R2P’s weak legal nature has had serious consequences on it’s significance as a concept that has the ability to prevent genocide and other war
crimes.
The R2P concept therefore has the potential to be a significant and effective one, but it is restricted. Kalkman is accurate in describing it as ‘a blunted weapon, incapable of resolving situations in need of militaristic intervention when the Security Council fails to intervene.’37 This is because the significance of the R2P concept has been watered down by the weak legal nature of the concept, as states cannot use force outside of the Security Council’s authorisation which it is not legally bound to give.
Extent to which R2P is an Established Norm of International Law
Article 38 of the Statute of the ICJ describes established norms of international law as ones which carry ‘evidence of a general practice accepted as law.’38 Therefore, the extent to which R2P is an established norm within international law depends on how generally accepted it is as law within the international community.
The High-Level Panel Report refers to the R2P concept that emerged from the ICISS report as ‘a relatively new emerging norm...not yet deep-rooted.’39 This essay is of the opposite opinion, that the R2P is made up of principles which have ‘deep-rooted’ foundations generally ‘accepted’ in international law. It is these principles which have been collected and placed under one name in order to cover the ‘past ghost’ of humanitarian intervention.40
The problem with humanitarian intervention was that states could pick and choose when to exercise their ‘right’ to intervene. For example, the Security Council failed to address the genocidal problems in Rwanda until it was too late. The international community justified it’s position by saying that humanitarian intervention was an unacceptable impeachment on state sovereignty. In order to solve this problem the ICISS re-characterised the meaning of sovereignty from ‘control’ to ‘responsibility.’41 The effect is twofold, in that there is now a responsibility for states to protect their own civilians and if they fail to do this, the duty to intervene falls to the international community.
Evans and Sahnoun argue along the same lines as Arbour42 in suggesting that this ‘sovereignty as responsibility’ principle within R2P is not yet customary international law, but a ‘de facto emerging norm.’43 However, Stahn44 cites Hugo Grotius who had a profound influence on international law and was writing as far back as the 1500’s, as arguing that the organisation and behavior of states exists for the benefit of the citizens that reside within it. This suggests that the state owes responsibility to the citizen, which is the basis of sovereignty within the meaning of R2P. The link between state ‘sovereignty’ and ‘responsibility’ appeared more recently when Deng and other academics45 used it to argue that states had a duty to afford assistance to Internationally Displaced People, suggesting that the states very existence is to serve the citizen, and that the citizen trusts the state to do so. This idea of ‘trust’ between the two parties also appears in John Locke’s contract theory where he talks about the relationship between the state and the citizen as one of ‘trust,’ which if breached renders power ‘back into the hands of those who gave it’ (the citizens).46 This suggests that in international law states and citizens are in a relationship of ‘trust’, and that ‘trust’ is breached if the state fails in it’s responsibility to carry out it’s duties.
It is not just the principle of ‘sovereignty as responsibility’ which is an established norm of international law. The principle of a duty to intervene by the wider international community if the host state fails in it’s responsibility also enjoys ‘deep roots’ in international law. In the Islands of Palmas Case47, it was stated that ‘territorial sovereignty...has...an obligation to protect within the territory and rights of other states.’48
More recently, the Constitutive Act of the African Union, Article 4 (h)49 imposes a duty on the signatories of the act to intervene in cases of ‘war crimes, genocide and crimes against humanity.’50 This is the same basic foundation upon which R2P is built, in that if a sovereign state fails in it’s responsibility to protect it’s people then it loses that primary status of sovereignty, and the duty to intervene is expanded externally on the signatories of the Act. Although this is only a regional document, it nonetheless has an international element because fifty three states are parties to it.
Furthermore, the three stages of R2P described in the ICISS report: the responsibility to prevent, to react and to rebuild,51 are also established norms in international law. The idea of the international community having this thorough responsibility; to prevent the atrocities from happening in the first place all the way through to rebuilding states to ensure they do not reoccur after, can be traced back to early post Cold War times. In his well respected and significant document ‘An Agenda for Peace,’ the then Secretary-General Boutros-Ghali 52 wrote of the need to implement both preventative diplomacy and post-conflict peace building.
Therefore the extent to which R2P is an established norm of international law depends on how one looks at the concept. It is clear that the individual principles upon which R2P is founded are generally ‘accepted’ practices within international law. They have been consistently cited by academics, regional treaty drafters and by international courts. However, it is true that the concept itself is the first time all these principles have been brought together under an umbrella term of R2P.
How has the R2P Concept Modified the Chapter VII Powers of the Security Council
Chapter VII of the UN Charter53 allows for the Security Council to authorise the use of force by ‘air, sea or land’ under article 42 if non-military (peaceful) measures adopted under article 41 are ‘inadequate or have proved to be inadequate.’ 54It is one of two exceptions to the rule under Article 2(4)55 that the use of force is prohibited within international relations. Article 39 gives the Council right to authorise such measures if they determine that ‘the existence of any threat to the peace, breach of the peace, or act of aggression’ to be of the extent that it requires such measures to ‘maintain and restore international peace and security.’56 Paydandeh argues that under R2P and especially after the Cold War, the Security Council has started to interpret ‘any threat to the peace’ to include any human rights violations. 57 This clearly widens the scope of what the Council will consider a threat to peace when deciding whether to grant authorisation for use of force, and indeed it decided to refer to the human rights violations in Rwanda,58 Somalia59 and East Timor60 as such threats to peace. Therefore, as a result of R2P, the Security Council’s Chapter VII powers have been widened quite extensively in terms of what situations which it can legitimately label a ‘threat to the peace’ and therefore authorise military action against under Article 39.
Furthermore, the Council’s power to use peaceful methods under article 41 may have also been modified slightly. Article 41 states the the Security Council ‘may’ use measures ‘not involving the use of armed force.’61 The word ‘may’ indicates that it is not under a legal obligation to do so and they can in fact take no measures, with the P5 veto powers reinforcing that freedom. For example, Russia and China both recently vetoed a Council resolution that would have threatened sanctions against Syria’s leadership.62 However, following the ICISS report it was recommended that the P5 members of the Security Council abstain from casting their veto in times when the Council is deliberating passing resolutions with respect to cases of genocide or other human rights violations. 63 This would modify the Council’s power under article 41 of Chapter VII because it would make it much more likely that the Council would in fact invoke it’s right to act instead of there always being a threat of inaction because of one or more members of the P5 casting their veto.
However, the ICISS recommendation that the P5 members of the Council should refrain from using their veto to block international action was completely ignored by the World Summit Outcome document. This leaves open the danger of revisiting a situation like Syria where Security Council action was blocked by veto. Considering that the Outcome document only allows for intervention authorised by the Security Council, the R2P concept seems to end up back where it started with no other options available if the Council decides not to act or is blocked from doing so.
Evans and Sahnoun argue that the Council’s powers need to be modified more if it is to be an effective avenue through which to ensure the R2P concept works well, saying that there is a need ‘to make the council work better than it has’64 reiterated the need for the P5 members to refrain from using their veto powers, although as stated this was not adhered to. There is clearly a need for the Security Council to make swift decisions where there are gross human rights violations. Only then will the Security Council be able to fulfill the vision of R2P effectively, which is to avoid mass atrocities such as Kosovo or Rwanda ever happening again. However, the current situations means that although the Council now has the power to more broadly interpret which situations constitute a ‘threat to the peace’ and therefore merit authorisation for intervention, there is still the danger that this process will take too long or will never actually materialise.
Conclusion
To conclude, this essay asserts that responsibility to protect is a political concept which has had it’s significance within the international community weakened by the fact that military authorisation remains at the discretion of the Security Council. The various principles that the concept is based on are established norms within international law but the concept itself, as a combination of these principles, is still an emerging norm. The Chapter VII powers of the Security Council have been modified to the extent that the Council may now widely interpret what constitutes justification for authorising military action or other measures. However, more changes are needed, specifically with respect to removing the veto powers of the permanent five members, if the R2P concept is to become an effective and significant weapon in the battle against grave atrocities on mankind.
Bibliography
1.) Articles / Books
Arbour L, ‘The Responsibility to Protect as a Duty of Care in International Law and Practice,’ Review of International Studies [2007] Vol.34, 445
Bellamy A, ‘Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention after Iraq’ [2006] Ethics and International Affairs, 31
Boutros-Ghali B, ‘An Agenda for Peace, Preventive diplomacy, peacemaking and peacekeeping’ A/47/277 - S/24111 (1992)
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Cohen J, One-hundred Days of Silence: America and the Rwanda Genocide, 1st Edn, Rowman & Littlefield Publishers (2006)
Deng F M, Kimaro S, Lyons T, Rothchild D and Zartman W, Sovereignty as responsibility: conflict management in Africa, Brookings Institution Press (1996)
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Kalkman M, ‘Responsibility to protect: a bow without an arrow’ [2009] Cambridge Law Review 75
Kennedy R F, Note, “Libya v. United States: The International Court of Justice and the Power of Judicial Review” 33 (1993) Va. J. Intl. L. 899, 913.
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2.) Case Law
Island Palmers Case, (Netherlands v USA) Reports of International Arbitral Awards Vol.II 829 1925
Legal Consequences for States of the Continued Presence of South Africa In Namibia (South West Africa) notwithstanding Security Council Resolution 276 (Advisory Opinion), I.C.J Reports 1971
3.) Treaties
The Constitutive Act of the African Union 2000
Charter of the United Nations 1945
Convention on the Prevention and Punishment of the Crime of Genocide 1951
4.) Other
Annan Kofi, “‘We the Peoples’ The Roles of the United Nations in the 21st Century’, Chapter IV ‘Freedom From Fear’ Report (2000)
Alverez J, ‘The Schizophrenias of R2P’ (Panel Presentation, Hague Joint Conference on Contemporary Issues of International Law: Criminal Jurisdiction 100 Years After the 1907 Hague Peace Conference, The Netherlands, 30 June 2007)
ICISS Report 2001
Outcome Document 2005
Report of the General Secretary’s High Panel 2004
Report of the General Secretary, In larger freedom: towards development, security and human rights for all 2005
Responsibility to Protect Website accessed 17 April 2013
Security Council Resolutions, accessed via
Straw J, ‘We are in Iraq to Bring about Democracy,’ (Labour Party Conference, Brighton, 28 September 2005), accessed 7th May 2013
United Nations Website accessed 27 April 2013