BY: ANDREIA SOARES E CASTRO
In a seminal article in The Economist, the former United Nations Secretary-General (UNSG) Kofi Annan discussed issues that remain controversial and difficult to answer and that allude to the fundamental problems of “humanitarian intervention” or intervention for humanitarian purposes (including military interventions to stop atrocities). Questions like, “Is it legitimate for a regional organization to use force without a UN mandate?” and “Is it permissible to let gross and systematic violations of human rights, with grave humanitarian consequences, continue unchecked?” drew attention to the (yet) unresolved question of “the inability of the international community to reconcile these two compelling interests.”
Kofi Annan’s article, entitled “Two Concepts of Sovereignty,” referred to the ongoing debate on state sovereignty and non-interference on the one hand versus individual sovereignty (and human rights) and the right to “humanitarian intervention” on the other. The debate over legality versus legitimacy was also implicit. Kofi Annan emphasized that “nothing in the UN charter precludes a recognition that there are rights beyond borders. What the charter does say is that ‘armed force shall not be used, save in the common interest.’
The Responsibility to Protect: The Report of the International Commission on Humanitarian Intervention and State Sovereignty (2001) is a key contribution to the questions raised by Kofi Annan. The report is also a response to the humanitarian catastrophes which occurred in the 1990s and highlighted the fundamental problems of humanitarian intervention, both when it happened, and when it failed to happen: Rwanda in 1994 and Srebrenica, Bosnia-Herzegovina in 1995 (total inaction by the UN); Kosovo in 1999 (not authorized by the UN Security Council and undertaken by NATO; illegal, but considered legitimate); East Timor in 1999 (authorized by the Security Council, but only after obtaining an invitation from Indonesia). Other post-Cold War interventions in northern Iraq (1991) and Somalia (1992-93) preceded this debate.
The Responsibility to Protect (widely referred to as “RtoP” or “R2P”) reformulates humanitarian intervention as a “responsibility,” first of the state, and failing that, of the international community, preferring to talk not of a “right to intervene” but a “responsibility to protect.” That is to say that national actors are responsible for delivering on their sovereign responsibilities and protection of their populations primarily. Hence, those seeking or needing protection and assistance makes the decision for intervention (and not those who may be considering intervention) whenever the state concerned is unable or unwilling to fulfill the responsibility to protect its population or is itself the perpetrator. This shift of focus and language also entails a broader meaning of protection, involving not just the “responsibility to react,” but the “responsibility to prevent” and the “responsibility to rebuild.”
In 2005, 191 member states unanimously adopted the R2P principle, paragraphs 138 and 139 of the UN 2005 World Summit Outcome Document (A/RES/60/1), affirming their primary “responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity” and accepted a collective responsibility to assist States if they do not possess the necessary capacity to prevent crimes in their territory. Consequently, R2P covers only those four mass atrocity crimes, and not all violations of human rights, which is considered the main limitation of R2P, nor does it cover suffering from natural disasters as the “2001 Report on R2P” did.
The world leaders also declared their preparedness to take collective, timely, and decisive action through the Security Council, in accordance with the UN Charter, on a case-by-case basis and in cooperation with relevant regional organizations, when national authorities manifestly fail to protect their populations.
Since the 2005 adoption of this important political commitment, which is not legally binding, the office of the Secretary General took several steps to develop the principle and guide its practical implementation. On January 12, 2009, Secretary General Ban Ki-moon released a report entitled, “Implementing the Responsibility to Protect.” Since then, there have been 9 UN General Assembly Debates and Dialogues on R2P plus numerous annual reports, which demonstrate that member states have been regularly debating and considering the implementation of the principle. In fact, R2P has frequently been referenced and reaffirmed in UN resolutions: “The Security Council has invoked R2P in 67 resolutions since 2006. The Human Rights Council has also invoked R2P in 30 resolutions”.
Nevertheless, the international community continues to struggle to find a way to both enforce and to operationalize R2P. Although widely recognized, there is a large gap between the theoretical and potential use of the R2P principle and its concrete and practical implementation (case-by-case). The gap explains Secretary General António Guterres’ remarks at the General Assembly on the responsibility to protect in September 6, 2017, even though recognizing that the R2P principle “still generates some discomfort for a number of states,” urged for its operationalization: “it is time to move beyond conceptual debate towards improved protection of people from atrocity crimes”.
Indeed, states such as Russia, Sudan, Cuba, China, Syria, Nicaragua, Ecuador, Venezuela, Belarus, and Iran are concerned with “its implementation and potential misuse,” namely with the use of a double standard in applying R2P. States frequently associate R2P with military intervention, which should be decided only in “extreme and exceptional cases,” as a “last resort,” and with the core objective to protect civilians and alleviate suffering, and no other hidden agendas, such as regime change.
Secretary General António Guterres acknowledged that “the main concern is that the principle will be used to impose international approaches on national problems, in ways that may harm national sovereignty,” emphasizing that “the success of the UN in implementing its mandates depends on national actors being able to deliver on their sovereign responsibilities.” What Secretary General António Guterres is recalling is one of the three R2P pillars with the responsibility to prevent being the most important and neglected pillar.
The fundamental problems of “humanitarian intervention” were again visible in the UN’s reaction to the conflicts in Libya and in Syria. In the case of Libya, there was a UN-backed intervention in 2011 with abstentions by Russia and China that resulted in regime change. In Syria, to prevent regime change from happening again, Russia and China, who have a long-standing policy of non-intervention in the internal affairs of other countries, systematically used the veto to block any action by the Security Council on Syria. Since October 2011, Russia has used its veto twelve times and China six, including one abstention, on resolutions meant to respond to crimes against humanity and war crimes committed against the Syrian people. Consequently, the international community is failing in its ability to protect the citizens of Syria, standing aside when mass atrocity crimes are taking place, perpetrated not only by Syrian president Bashar al-Assad but also by various non-state armed groups.
Without Security Council reform, especially relating to the veto, it will be difficult to detach R2P from political and geopolitical constraints. Nine UN Security Council affirmative votes out of fifteen must authorize the use of force and all of the permanent members- the US, the UK, France, Russia, and China- must refrain from exercising their veto. Since the adoption of R2P in 2005, the P-5 have used their veto several times in situations where atrocities either occurred or were at risk/suspected of occurring: the veto was used on resolutions on Syria, Palestine, Myanmar, and Bosnia-Herzegovina.
In other words, the veto power of the Security Council is one of the main causes for international inaction on mass atrocity crimes, as the P-5 continue to protect their privilege, interests, and allies, by not acting or using the veto power to block intervention in humanitarian crises. Recently, a few days after an alleged chemical weapons attack in the Damascus suburb of Douma, the UN Security Council failed to adopt three resolutions on the use of chemical weapons in Syria.
The veto power related to the “failure” to act in war crimes, crimes against humanity, or genocide situations has led several voices, including the Secretary General, the Deputy-Secretary-General, the High Commissioner for Human Rights, and the Special Advisers for Genocide Prevention and the Responsibility to Protect, to advocate for the voluntary restraint of the veto in those cases. In 2001, former French Foreign Minister Hubert Védrine proposed a “code of conduct” for veto restraint in atrocity situations. The 2001 Report on R2P endorsed the proposal: “The Permanent Five members of the Security Council should agree not to apply their veto power, in matters where their vital state interests are not involved, to obstruct the passage of resolutions authorizing military intervention for human protection purposes for which there is otherwise majority support.” The proposal was ultimately unsuccessful.
In October 2013, with the stalemate in Syria, France proposed for the adoption of the “code of conduct” for the use of veto in the Security Council in situations of genocide, war crimes, crimes against humanity, and ethnic cleansing. The code of conduct would serve as a voluntary suspension of the veto in situations of mass atrocity, establishing a non-binding agreement and thereby avoiding the need to amend the UN Charter. Later in 2015, France, with the support of Mexico, launched a “Political Declaration on the suspension of veto in cases of mass atrocities,” underlining “that the veto is not a privilege, but an international responsibility.” As of June 27, 2017, 96 member states supported the Political Declaration. As of April 19, 2018, 114 member states and two observer states have endorsed the Accountability, Coherence and Transparency Code of Conduct, demonstrating that the support for limiting the use of the Security Council veto has grown considerably, particularly following the inaction to address the humanitarian crisis in Syria since 2011.
In this respect, Zeid Ra’ad Al Hussein, the UN High Commissioner for Human Rights, recently made a bold statement: “the responsibility for the continuation of so much pain lies with the five permanent members of the UN Security Council. So long as the veto is used by them to block any unity of action, when it is needed the most, when it could reduce the extreme suffering of innocent people, then it is they – the permanent members – who must answer before the victims”, urging China, Russia and the United States to join the code of conduct on the use of veto and to “end the pernicious use of the veto.”
The “responsibility not to veto” is a good alternative to the status quo, particularly at a time of continuing and increased atrocity crimes and populations at risk in many parts of the world. But it will be difficult to detach R2P from political considerations. Moreover, it will be difficult to get the P-5 to come to an agreement and put moral arguments above political ones.
All that said, the issue of intervention for human protection purposes remains to be “one of the most controversial and difficult of all international relations questions” and will continue to pose profound challenges to the international community, which persists to fail in responding adequately to massive human rights violations. To date, the questions raised by former Secretary General Kofi Annan in 1999 remain unanswered as long as R2P is not fully operationalized, wherever major and systematic human rights violations are not checked and whenever the P-5 cannot compromise in appalling cases such as Syria, Gaza, or Myanmar. It is important to recognize, as it was in the “2001 Report on R2P,” that “all this is easier said than done.”
Unfortunately, the Security Council has not been able to “rise to the challenge,” as Kofi Annan yearned for, nor has it been the defender of the “common interest,” remaining highly divided between the pursuit of national interests and the action “in defense of our common humanity.” Hence, as things stand, there is still a lot of work to be done concerning the “internationalization of the human conscience” and the production of international action to save lives from atrocity crimes.
Andreia Soares e Castro is an Assistant Professor at the Department of International Relations, ISCSP – ULisboa as well as a Researcher at the Centre for Public Administration & Public Policies CAPP/ISCSP-ULisboa. She received her Ph.D. in International Relations as well as her M.A. in International Relations from ISCSP-ULisboa.
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