The Responsibility to Protect

I recently had the honor of chairing a panel on the Responsibility to Protect at the annual Canadian Council of International Law (CCIL) conference in Ottawa.   The evolving contours of this concept provided for a stimulating exchange between panelists Lieutenant Colonel David Antonyshyn, Dr. Joanna Harrington, and Ryan Liss.  I highlight some of the themes here for broader reflection and comment.

The Responsibility to Protect, or “R2P” as it is know in the business, gives expression to the conviction that it is unacceptable for States to allow gross violations of human rights against their populations.    It is narrow, in that it applies to “genocide, war crimes, ethnic cleansing and crimes against humanity.” Nonetheless, it is a powerful concept in that it recognizes that the international community has a responsibility to prevent these crimes.   Prevention can range from education and public suasion at one end of the spectrum to humanitarian intervention backed by military force at the other.

Military force, of course, is where the real controversy lies, and it is worth recalling that the 2005 World Summit Outcome document condoned the operationalization of the doctrine only within the framework of the UN Charter.   As such, there is little controversy that R2P is primarily a political doctrine that justifies intervention within the existing UN Charter. Whether it could be invoked unilaterally or outside of the UN Charter is the subject of great debate.

R2P has been put to the test these past 14 months.  When the UN Security Council invoked the doctrine in Resolution 1973 on Libya, most concurred this constituted an explicit and robust application of the doctrine, which resulted in the Security Council’s authorization of military intervention.   Nonetheless, within weeks, critics suggested that the intervention had gone beyond the intended Security Council mandate and had become a convenient cover for regime change.  Not long after, as is well known, the situations in Bahrain and Syria began to spiral downwards, and many argued that intervention was again needed and appropriate.  Nonetheless, the Security Council has not garnered enough support to invoke the doctrine since Libya.   China and Russia have used their veto to block Security Council resolutions on Syria with similar R2P language, and it is not clear if and when the Council will endorse the concept again.

One particularly interesting exchange was whether Libya was the highwater mark of R2P.  If one views R2P as equal solely to military intervention this might well be true, at least in the medium term.  Nonetheless, there are some factors that make the Libyan intervention distinctive.   First, Ambassador Shalgam, the Libyan Ambassador to the UN at the time of the Security Council debate, consented to Security Council intervention and called for the UN to stop Gaddafi.   As such, the intervention was invited by an accredited government representative (albeit one who was estranged from Gaddafi at the time of the intervention), which, partially vitiated concerns about violating state sovereignty.  Second, Gaddafi’s remarks about “germs, rats and scumbags” may have constituted genocidal language, which triggered a responsibility to prevent pursuant to the Genocide Convention.  Third, R2P contains a plethora of softer tools including election monitoring (Kenya), radio jamming (Rwanda), and other non-military forms of intervention.   These tools are regularly and effectively employed under the R2P umbrella suggesting that the doctrine is alive and well.

Another dynamic worth highlighting is the growing opposition to R2P by the BRICs.  Professor Joanna Harrington discussed Brazil’s Concept paper entitled “Responsibility While Protecting”   highlighting how a mid-way position has been propagated by Brazil which calls for proportionality and accountability while protecting.   Although this concept paper has generated a lot of discussion, it has not yet taken concrete institutional form. 

Some of the questions arising out of the panel include:

• What are the alternatives to R2P?  Should regional bodies like the African Union or Arab League step up to play a bigger role?
• Will R2P be subsumed by related but less charged concepts, such as “the protection of civilians”?
• Can Brazil’s proposal put in place limits that will effectively curb the invocation of R2P by over-zealous interlopers?
• Should R2P apply in natural disasters, particularly if the disasters create a pretext for targeting (e.g. punishing or relocating) a particular group?
• What is the relationship between responsibility, sovereignty and self-determination?  Ryan Liss provides a very interesting account here.