“To reinforce, not undermine, sovereignty”: The Metamorphosis of the Responsibility to Protect

Introduction

The Responsibility to Protect has been the subject of significant debate over the last decade. During this time, it has garnered considerable (according to many, excessive) diplomatic and academic attention. Still, most of the writing on the topic, both within UN documents and in scholarship, keeps reiterating the historical introduction which defines the doctrine and its philosophy.

The continuous reference to its basic principles shows that the origin of RtoP needs to be recalled, as its substance is still being shaped. This post aims to present an example of the way that the concept is developing, by providing an analysis of the Sixth Informal Interactive Dialogue of the UN General Assembly on the Responsibility to Protect, held on 8 September 2014. The dialogue followed the Report of the UN Secretary-General entitled “Fulfilling our collective responsibility: International assistance and the responsibility to protect”, released on 11 July 2014. A comparison between the initial principles establishing RtoP and the recent documents will allow for some final reflections about the current relevance and meaning of the doctrine in international law.

The Responsibility to Protect and Sovereignty

As is often recalled in commentaries on RtoP, the doctrine was conceived following the atrocities committed in Rwanda and the Balkans in the ‘90s. Even recent Security Council Resolution 2150/2014, which was the first directly referring to the doctrine in its operative paragraphs, “underscores the importance of taking into account lessons learned from the 1994 Genocide against the Tutsi in Rwanda”.

In the view of the International Commission on Intervention and State Sovereignty[1], the doctrine was aimed at addressing the international community’s failure to prevent and stop international crimes and humanitarian crises. As enshrined in the General Assembly World Summit Document[2], RtoP redefined the core elements of the international law concept of sovereignty. Indeed, it affirmed that States bear the primary responsibility to protect their populations from mass atrocities. At the same time, it recognised that the international community is responsible for assisting States in protecting their populations. Finally, as a measure of last resort, other States could also intervene using non-peaceful means, where local national authorities fail to stop ongoing mass atrocities.

In establishing these parameters, RtoP redefined the concepts of sovereignty and domestic jurisdiction, which are among the cornerstone principles of the UN Charter. It proposed a new theoretical framework to encompass what until that point was referred to as humanitarian intervention. RtoP thereby shifted the focus from state sovereignty to securing basic human dignity. It created an obligation upon both States and the international community to protect populations from mass atrocities.

As a result of its nature in limiting sovereignty, and its association with humanitarian intervention, critics of RtoP maintained that it might run the risk of creating a “Trojan horse”[3] for the benefit of major powers. The actual implementation of the doctrine confirmed the fears about the risk of misuse. For instance, the Russian Federation invoked the Responsibility to Protect in justifying its actions in the crises in South Ossetia, Abkhazia, and most recently Crimea. It claimed to have intervened with the aim of protecting local Russian populations, albeit without Security Council authorisation. Similarly, the intervention of NATO forces, acting pursuant to Resolution 1973/2011, in Libya was also criticized extending the scope of the military operation beyond the limited mandate to protect the civilian population. Indeed, several non-permanent members of the UN Security Council protested against the misuse of this doctrine and urged NATO forces to maintain, during the intervention, a “Responsibility While Protecting”. As a result, while the erosion of State sovereignty to protect populations from mass atrocities was RtoP’s most powerful innovation, the doctrine lacked consistent implementation under clear legal standards.

2014 Secretary General Report and Interactive Dialogue

The 2014 Report of the Secretary-General entitled “Fulfilling our collective responsibility: International assistance and the responsibility to protect”, along with the subsequent Informal Interactive Dialogue of the General Assembly, present a completely different focus for the Responsibility to Protect. Indeed, they focused on the responsibility to assist States in protecting populations, which is the second of three pillars proposed in the 2009 Secretary-General Report.[4] On the one hand, cooperation among States to assist each other in protecting civilians is a core element of RtoP and is intended to be applied before any coercive measures is considered. At the same time, both the Report and the Dialogue contain general statements that go beyond the second pillar and apply to the doctrine as a whole., Thus, some concern might arise on a possible shifting understanding of the elements of RtoP. For instance, paragraph 12 of the Report states that: “the responsibility to protect is intended to reinforce, not undermine, sovereignty. The principle was not designed to create a hierarchical structure in which the international community imposes demands or solutions on States. Rather, it reaffirms the fundamental principle of sovereign equality, expressed in Article 2 of the Charter of the United Nations.”

Accordingly, delegations taking part in the Informal Interactive Dialogue, particularly those representing ASEAN States, gave examples of successful cases of State cooperation in facing humanitarian crises. A considerable number of States, including those in Central and South America and Middle East, revealed a positive stance on this formulation of RtoP. Iran, for instance, explicitly appreciated the intention to reinforce State sovereignty.

However, promoting dialogue between States is not a new or special feature of RtoP. It is rather a fundamental element of the spirit of the United Nations itself as initially conceived by the Charter. In this respect it is political will, and not a new international law norm, which is required to bolster State cooperation. The existence of successful cases of mutual State assistance reveals that RtoP is not necessary as a premise to this kind of cooperation

Therefore, if the growing support for RtoP is only achieved in conjunction with a reiteration of the strengthening of state sovereignty, this may contaminate and weaken the value of the doctrine. RtoP was in fact intended to overcome the structural barriers inherent in the notion of state sovereignty and entrenched through the Charter, in order to protect the basic tenets of humanity. By allowing the discourse to centre around state cooperation and by-pass the fundamental element that is the restriction of sovereignty, strength of RtoP is being reversed to become nothing more than a reiteration of what is already permissible by the letter of the Charter.

This observation does not, in any way, intend to undermine the importance of interstate cooperation to stop mass atrocities. Indeed, in order to address the different crises which are currently being instigated by transnational armed groups, e.g. ISIL, which is not openly supported by any specific Government, interstate assistance is essential. Furthermore, in order to correctly apply RtoP, the international community should support States in countering those responsible for the atrocities committed on their territories. In this case, the Second Pillar of RtoP is the most appropriate way to fulfil its mandate.

However, at the same time, it is worth recalling that the doctrine was originally created following the failure of the international community to address the conflicts and commission of international crimes in Rwanda and in the Balkans.

Political leaders of the countries involved were prosecuted for their crimes at the international criminal tribunals specifically created for the former Yugoslavia and Rwanda. In these situations, it is hard to imagine how a response which assists the local Governments in reinforcing their sovereignty will adequately protect the dignity and humanity of the affected populations.

Conclusions

Implementation, political interference, lack of judicial review and double standards are all factors that currently undermine the development of RtoP. At the same time, the core philosophy of the doctrine, privileging human dignity over State sovereignty, is recognised as a strong innovation towards a global culture of international justice and human rights protection.

Recently, the report of the Secretary-General and the subsequent General Assembly Dialogue have introduced some uncertainty about the current state of the substantial definition of the norm itself. The principles and aims of RtoP appear to be changing depending on the different contexts in which it is invoked, and for the sake of gaining States’ support. However, in the long run, this may weaken the nature and relevance of the principle. In order to improve its credibility and fulfil its aims, the international community should strive, instead, to maintain the theoretical and legal consistency of the definition of RtoP.

[1] Report of the International Commission on Intervention and State Sovereignty. “The Responsibility to Protect” (International Development and Research Center, 2001)

[2] 2005 World Summit Outcome Document (UN A/RES/60/1, October 2005)

[3] Alex J. Bellamy, Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention after Iraq, Ethics & International Affairs, Volume 19, Issue 2, pages 31–54, September 2005

[4]UN Secretary-General,  “Implementing the responsibility to protect”, 21 July 2009

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