R2P RIP? Let’s Hope Not

Responsibility to Protect (R2P) is in trouble in the UN, according to a dismayed account in this week’s Economist (“An idea whose time has come – and gone?” Economist, July 25, 2009, p 58).  I’m dismayed, too.

At the 2005 UN reform summit of the General Assembly, says the Economist

the biggest-ever gathering of world leaders accepted the principle that they have a general “responsibility to protect” human beings from genocide, ethnic cleansing, war crimes and crimes against humanity. In a delicate formula which [Gareth] Evans worked hard to craft, it was agreed that this concept, now known as R2P, referred mainly to the responsibility of states for their own people. Only in certain extreme circumstances, when states could not or would not protect their own citizens, or were actively harming them, might others step in. The concept was carefully modified so as to avoid giving prickly sovereign states the idea that they were about to be invaded at will by moralising outsiders.

It is an idea that, in the developed world at least, has wide support.  In the United States, it cuts across partisan lines and unites foreign policy idealists, liberals and conservatives, left and right.  The Hoover Institution’s Tod Lindberg, for example, has joined forces for many years with such foreign policy liberals as Lee Feinstein and others to craft and advocate  a US foreign policy supportive of the concept.

Precisely because I am extremely supportive of R2P, I have always been concerned about the evolution of R2P as a legal concept at the United Nations because, in diplomatic developments there, it seemed to take steps backwards from where state practice had led us by the time of the Kosovo intervention.  The Kosovo intervention, recall, was carried out by NATO without any authorization whatsoever by the Security Council and the full knowledge that had it been consulted, Russia at least and possibly China would have voted and vetoed it.  Hence action deliberately without Security Council authority.

Now that does not bother me, because, as regular readers know, I have no special attachment to the binding authority of the Security Council or the UN – possibly good if you can get it, and sometimes a useful way of coordinating political agreement (long or short term) but often not, but that’s about it.  If, however, you are of the view that the authority of the SC regarding the use of force is not, as Michael Glennon has argued, in a state of legal ‘desuetude’, then you have a problem.  And so it has been famously argued over and over ever since the Kosovo war.  My view, for what it is worth, is that it genuinely is an intellectual fork in the road for international lawyers, and although I admire the heroics involved as a kind of lawyerly aesthetics, I can’t say I’m intellectually persuaded by the attempt to have one’s cake and eat it too regarding intervention and the Council.

That said, and however one feels about it, it always seemed to me that the text of the final outcome document of the UN reform summit in 2005 was a step backwards toward a requirement of Security Council authorization.  What is the relevant 2005 text?

138. Each individual State has the responsibility to protect its populations from
genocide, war crimes, ethnic cleansing and crimes against humanity. This
responsibility entails the prevention of such crimes, including their incitement,
through appropriate and necessary means. We accept that responsibility and will act
in accordance with it. The international community should, as appropriate,
encourage and help States to exercise this responsibility and support the United
Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the
responsibility to use appropriate diplomatic, humanitarian and other peaceful means,
in accordance with Chapters VI and VIII of the Charter, to help to protect
populations from genocide, war crimes, ethnic cleansing and crimes against
humanity. In this context, we are prepared to take collective action, in a timely and
decisive manner, through the Security Council, in accordance with the Charter,
including Chapter VII, on a case-by-case basis and in cooperation with relevant
regional organizations as appropriate, should peaceful means be inadequate and
national authorities are manifestly failing to protect their populations from
genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the
need for the General Assembly to continue consideration of the responsibility to
protect populations from genocide, war crimes, ethnic cleansing and crimes against
humanity and its implications, bearing in mind the principles of the Charter and
international law. We also intend to commit ourselves, as necessary and appropriate,
to helping States build capacity to protect their populations from genocide, war
crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

It was a step taken precisely because much of the world was perturbed by the Kosovo precedent (boldface added).  I was told otherwise by State Department people, who told me that there was enough wiggle room and ambiguity in the language to allow another Kosovo; they particularly referred to the language of “in cooperation with relevant regional organizations.” Possible, yes; genuinely plausible in light of the actual negotiations? I rather doubted it then and now.

Much more to the point, watching the negotiations take place, it was obvious to me – and I rather thought to everyone – that whatever wiggle room the US (and other idealists) had concluded was there and believed, quite sincerely, was built in by this language – as far as the rest of the world was concerned, it was exactly as it appeared to read: action had to come “through” the United Nations and through the Security Council.  The world’s idealists decided to treat the formulation as ambiguous, but much of the rest of the world – including me,and I’m a foreign policy idealist – thought it was plain as day and not ambiguous at all.  This can potentially lead to a mismatch of expectations worse than mere ambiguity, because where one side thinks it ambiguous but the other side does not, the result can be not just different interpretations, but genuinely felt accusations of bad faith.

R2P’s chief promoter, Gareth Evans, in his pathbreaking book on the subject, appears to take the same interpretive view of the role of the Security Council under the 2005 document that I have taken. Evans, of course, has been at the forefront of this movement and wrote the book on it, as it were – Scott Malcomson reviewed it in his usual skillful way along with several others on humanitarian intervention in December 2008 in the New York Times.  As observed by Malcomson (no mere NYT editor, but a former senior advisor at the UN to Sergio de Mello Vieira, by the way), first referring to the Evans and the evolution of the R2P concept in general:

Evans cuts a fascinating figure on the world stage. Always informed, sometimes alarming, never dull, he has a diplomat’s ability to listen and reflect, and a politician’s will to dominate a room. He is also an able and prolific writer. His achievements as foreign minister of Australia in the late 1980s and early ’90s were out of proportion to the influence of his country. And as the head of a nongovernmental organization, he took the International Crisis Group from being a modest advisory council to its current status as a global foreign-policy investigative, analytical and advocacy organization, with considerable influence on governments (which pay some of its budget) and the general public. His purpose in writing “The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All” is to advance the doctrine known by the Spielbergian acronym R2P, for which Evans, in his capacity as political entrepreneur, has been a crucial spokesman.

As Malcomson goes on to note, Evans, the consumate diplomat as well as NGO advocate, understood perfectly well the nature of the step he reluctantly signed onto in the 2005 summit:

In many ways, the crucial flaw in the legal and political avenues is that they both lead back to the United Nations Security Council, which, since its first session in 1946, has been captive to the veto power of its five permanent members: Britain, Russia, China, France and the United States. There have been many proposals for changing or evading this, some of them quite ingenious. But Gareth Evans is probably right to say that “any concession that … there are some circumstances that justify the Security Council being bypassed. . . seriously undermines the whole concept of a rules-based international order. That order depends upon the Security Council . . . being the only source of legal authority for nonconsensual military interventions.” ….

[Evans’] reluctant acceptance of the centrality of the Security Council is of a piece with his general approach: that what matters in politics is the channeling of power toward humanitarian ends. He is seeking, with his advocacy of the responsibility to protect (and with this book), to institutionalize the idea that all states have an obligation to shield their own citizens from mass atrocities, and that if a state fails to do so, it falls to other states to take on that obligation. His encyclopedic knowledge of the international system enables him to make many specific proposals.

Evans goes to heroic lengths, here and in the commission reports he helped write, to show that this doctrine is intended to be preventive first, meliorative second and invasive only as a last resort. In short, the international community should be oriented toward preventing atrocities before they get under way by helping the state in question, and only in extreme cases by using military force. The responsibility to protect is, in a sense, the reverse of its immediate doctrinal ancestor, the “right of humanitarian intervention,” which began its life as a direct challenge to state sovereignty. The R2P approach is to stress the duties of the sovereign state, rather than the power of the international community to trump that sovereignty.

Evans readily acknowledges that the nature of the Security Council-based system means no R2P-based military action is ever likely to be taken against any of the permanent Council members.

Or any state, or substate, or region, or group protected for whatever reason by a P-5 member.  As Chris has noted in his blog posts as well as his scholarship on Russia, Georgia, and Kosovo, Kosovo as a precedent can lead multiple directions, whether in good faith or bad.  Malcomson tracks this line of thinking:

Unfortunately, it’s easy to see where this can lead. “If all this talk about responsibility to protect . . . is going to be used only to initiate some pathetic debate in the United Nations and elsewhere, then we believe this is wrong,” Sergey V. Lavrov, the Russian foreign minister, told the Council on Foreign Relations not long ago. “So we exercised the human security maxim, we exercised the responsibility to protect.” He was referring to Russia’s protecting South Ossetia from Georgia.

But the criticism that the sole problem in implementing R2P lies in the Security Council is, in my view, far too narrow. The unfortunate fact is that the concept has never enjoyed as wide a currency as the strategic ambiguity that the West, the NGOs, Evans, and the rest of us (I include myself) idealists permitted us to believe.  Hence the current attack on it comes through, not the Security Council, but the General Assembly, as the Economist article this week notes.  R2P never had much currency among developing countries or in the UN General Assembly, and apparently even the yoking of the concept to the authority of the Security Council was not enough to satisfy concerns. As the Economist says:

[A] coalition of governments and other sceptics now seems bent on unravelling all their delicate work. These naysayers have been busily sharpening their knives ahead of a debate at the General Assembly which was due to start on July 23rd.

The apparent campaign to sabotage R2P is taking place in defiance of Ban Ki-moon, the UN secretary-general, who earlier this year drew up a report that presents the concept in the most cautious and reassuring of tones. As he argued, there were several benign and uncontroversial ways in which R2P could be made more real. For example, by helping decent states protect their people; or by having an effective early-warning system to trigger constructive action when things start to go wrong (or in plainer terms, when states start to collapse). He says action, military or otherwise, by external powers is a last resort.

Such assurances have failed to convince critics of R2P, who are adamant that the whole idea is just a cover to legitimise armed interference by rich Western powers in the affairs of poor countries.

Ban Ki-moon’s report is here, and it is as every bit as cautious as suggested; I don’t blame him for being cautious and think he did the right thing by focusing on the far less controversial issues.  (You can get to the report pdf via links on this page.)  So, at paragraph 52, the Secretary General says “non-coercive and non-violent” measures can be undertaken under Charter Chapters VI and VIII “without the authorization of the Security Council.”  The implication, which the rest of the report supports, is that coercive and violent measures do indeed require Security Council authority.  Nor is there any suggestion – as was a preferred legal resolution for some scholars post-Kosovo – that failure to object at the time or acquiescence afterwards was an acceptable substitute.  The report urges both General Assembly members and P-5 members to consider the objective standards for R2P rather than their interests or friends. To give the report its due, it is quite good on the less-controversial issues that might, in a real situation, be of enormous importance in averting a genocide, the practical issues of response, the parlous state of the African Union’s peacekeeping forces – much tasked but not so much provisioned or trained – and other issues that don’t require any contentious debate over the authority to use force.

But the maneuvers to which the Economist article refers today are in the General Assembly, and are organized by Miguel d’Escoto Brockmann, the Sandinista priest-politician-diplomat from Nicaragua who is the current president of the GA:

In a calculated snub to the idealists who tried to make the R2P idea nuanced and hence palatable, he says a more accurate name for the concept would be the “right to intervene” or R2I. Quite a number of countries might be persuaded to support a resolution diluting the commitment to R2P that was made by over 150 states at the UN summit in 2005. Possible backers include large and middle-sized powers of various ideological stripes—including India, Pakistan, Cuba, Sudan, Venezuela and Egypt. Some of these may try to induce smaller states in their neighbourhood to follow their sceptical line.

Supporters of R2P are complaining of a “surprise attack”. They say Mr d’Escoto brought the debate forward by several weeks—to a snoozy period in late July. Conveniently enough, Mr Ban will not be around. On July 21st, before he left New York, Mr Ban made a short plea in R2P’s defence, urging states to “resist those who try to change the subject or turn our common effort to curb the worst atrocities in human history into a struggle over ideology, geography or economics.”

Meanwhile Mr d’Escoto scheduled an eve-of-debate discussion by a four-member panel in which Mr Evans was the only supporter of R2P—pitted against three sceptics, including Noam Chomsky, a linguist and veteran critic of American foreign policy. Ed Luck, who is Mr Ban’s adviser on R2P, was allowed to make a statement, but only the panel members could take questions from member states.

The Economist article concludes by finding a sort of way of making peace with the developing world on all this – making the lack of political ability to reform the UN Security Council the real villain here.  That strikes me as a diversionary tactic, and intellectually false insofar as it suggests that somehow R2P would be more palatable if it were part of a reformed UN with a reformed Security Council that was, like the General Assembly, representative of the world rather than a semi–if antiquated-collection of the Great Powers.  (It also makes me wonder, as so often happens reading the Economist, who actually wrote the unattributed article and what his or her background interests might be.)  I am not defending the Security Council in its current legal configuration.  But putting one’s hopes in the General Assembly, or a Security Council reconfigured to be a sort of mini-version of the General Assembly does not seem very plausible, either.

On these kinds of issues, at least as pursued at the UN, I am with the realists in assessing them as a function of what states want.  Making appeals to their better natures, as the Secretary General’s report repeatedly does, seems to me worse than useless, because it predicates policy on collective action that predictably will not come.  Here, the problem is much worse, because much of the world does not actually agree that there should be a doctrine of R2P even in the limited form of the 2005 General Assembly document.

My view is what I said recently in my Chicago international law journal article, that the world can indulge the language of collective security because, rather than actually relying on UN collective security, much of the world instead relies on a parallel US security guarantee that takes a broad view of what is compatible with it.  The reason much of the world, particularly the developed democratic world, trusts it over UN collective security, however, is that it is not at bottom a collective action game at all; the US is perceived to be following its own interests which, luckily, happen to be broad enough to encompass some of the most basic interests in ‘order’ of the industrialized democratic world, starting with NATO.

NATO is not a collective action assemblage, at least not in a material sense.  It is instead the US trailed by free-riders who, paradoxically, prefer that the US follow its own broad interests.  Those free-riders want an optimal tradeoff between two things:

• first, that those interests be sufficiently broad to encompass Europe’s broadest security interests and,
• second, that the US act from interests in order to give it an incentive to act and not rely on the worrisome propositions of collective action.

What the NATO allies contribute is largely not material, but instead ideological and political legitimacy.  But precisely because it, rather than material aid, is the allies’ contribution, they have good reason to want to raise its value by raising its scarcity and being parsimonious in dispensing it.  Those incentives exist quite apart from who might be right or wrong about a particular action or policy.  NATO is best understood as the leading counterexample to collective security and for a relatively broad minded hegemon who can be trusted on the big issues because it follows its own interests.  (Beware US decline, in that case; free riders often suffer the most.)

The question in that frame is whether R2P is to be understood as a doctrine of UN collective security, in large part to address fundamental order in disordered places where the US security guarantee does not extend, in which case Darfur – and the failure effectively to intervene there – is the prototype.  Or instead whether it is a doctrine of the parallel US security guarantee, invoked to provide a basis for the US, with its NATO allies typically, with Kosovo as the prototype, to intervene when its peculiar combination of ideals and interests lead it to want to do so.

Georgia and South Ossetia asserted as another Kosovo create a particular problem in the latter case; consult Chris’s Chicago article for details.  But apparently in that case, no worries, because, as we have been recently told by the US Vice-President, the weakened and “withering” Russian Federation will have to “bend” to the US will.  I think the Vice-President would be wise to ask his advisors to review the thought of the late, great Atlanticist Raymond Aron.