MJIL Symposium: A Response to Spencer Zifcak by Ramesh Thakur

by Ramesh Thakur

[Ramesh Thakur is Director of the Centre for Nuclear Non-proliferation and Disarmament (CNND) in the Crawford School, Australian National University and Adjunct Professor in the Institute of Ethics, Governance and Law at Griffith University.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Professor Spencer Zifcak has written an insightful article on a topic that is important, timely and will not go away. His analysis and conclusions are judicious, circumspect, balanced and, in consequence, stand the test of time since the article was written. I would like to make four points in summary and add three items to his analysis.

First, the use of force, no matter how benevolent, enlightened and impartial in intent, has empirical consequences and shapes the struggle for power and helps to determine the outcome of that political contest. This is why it is inherently controversial and contentious.

Secondly, the Responsibility to Protect (‘R2P’) is the normative instrument of choice for converting a shocked international conscience into decisive collective action — for channelling selective moral indignation into collective policy remedies — to prevent and stop atrocities. In the vacuum of responsibility for the safety of the marginalised, stigmatised and dehumanised out-group subject to mass atrocities, R2P provides an entry point for the international community to step in and take up the moral and military slack. Its moral essence is the acceptance of a duty of care by all those who live in zones of safety towards those trapped in zones of danger. It strikes a balance between unilateral interference and institutionalised indifference. But the precise point along the continuum is not easily ascertained in the fog of armed violence amidst chaos and volatility.

Thirdly, R2P was the discourse of choice in debating how best to respond to the Libya crisis. But the R2P consensus underpinning Resolution 1973 in 2011 was damaged by gaps in expectation, communication and accountability between those who mandated the operation and those who executed it. For NATO, the military operations, once begun, quickly showed up a critical gap between a no-fly zone and an effective civilian protection mandate. But back in New York, there was an unbridgeable gap between effective civilian protection, which Brazil, Russia, India, China and South Africa (‘BRICS’) supported, and regime change, which they strongly opposed.

One important result of the gaps was a split in the international response to the worsening crisis in Syria. Both China and Russia, still smarting from the over-interpretation of Resolution 1973, have been defiantly opposed to any resolution that could set in train a sequence of events leading to a 1973-type authorisation for outside military operations in Syria.

Fourthly, the Libya controversy over the implementation of R2P notwithstanding, by 2012 there was no substantial opposition to R2P as a principle or norm — an international standard of conduct.

As indicated, Professor Zifcak explores all this thoroughly and competently, including the explanations for the lack of an R2P operation in Syria because of the greater domestic complexity, the lack of incendiary threats of mass violence from the regime towards its people, the manner in which Syria is enmeshed in a far more volatile region, the blowback from the abuse of Resolution 1973 by NATO in Libya, and, most importantly, prudence about the risks of doing more harm than good by intervening. But there are three items missing from his analysis worth mentioning.

First, he notes that with the descent from peaceful protest into armed opposition to the Assad regime, the picture became a bit blurred between the perpetrators and victims of violence. Even if the regime is responsible for 80 per cent of the atrocities, international intervention cannot deploy force against both sides on an 80-20 split. The incentive structure thus encourages the rebels to resort to brutality as a means of provoking disproportionate retaliation that promotes internationalisation of the conflict, without any accompanying downside. This has been an important element in the political justifications advanced by China and Russia of their veto of Western-backed resolutions. The international community has not yet found an answer to this moral hazard.

Secondly, a critical element in the politics is the Sunni versus Shi’a crescents in the region and how this intersects with the Alawite minority ruling over the Sunni majority in Syria. The Sunni crescent is led by Saudi Arabia and Turkey, the Shi’a front by Iran. The Sunni coalition is solidly pro-West. Therefore China and, especially, Russia have little to gain and much to lose in the region by abandoning Assad in Syria. This also gives added perspective to the anti-Assad stance of the Arab League, a consideration that did not apply in Libya.

Thirdly, Professor Zifcak fails to discuss the Brazilian proposal on ‘Responsibility while Protecting’. This has been the dominant topic of debate in and around UN circles for the past year on R2P and is expected to continue to exercise the Security Council. Its two key elements are to formulate an agreed set of criteria or guidelines to help the Security Council in the debate to mobilise consensus to authorise an R2P military intervention; and a monitoring or review mechanism to ensure that the Council has an oversight role over the operation during implementation in order to maintain the consensus.

The task for those who would enhance the prospects of international intervention when warranted, lessen the likelihood of such adventures when not, and embed the discourse and the actions within globally shared understandings on the norms and practices underpinning such interventions, is to consolidate and strengthen, not abandon or circumvent, R2P. That is what the Brazilians are attempting.

http://opiniojuris.org/2012/11/14/a-response-to-spencer-zifcak-by-ramesh-thakur/

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