THE DEVELOPMENT OF THE RESPONSIBILITY TO PROTECT
The chapter discusses the evolution and development of the concept of the Responsibility to Protect (R2P), for purposes of investigating how best to apply the concept in the face of humanitarian crises, in order to address concerns about its implementation. In the 1990s, the international community was faced with several humanitarian crises in several countries, including Iraq (1991), Somalia (1992), Rwanda (1994), Bosnia (1993-1995), Haiti (1994-1997), and Kosovo (1999). In the face of these crises, particularly the genocide in Rwanda during which over 800,000 Tutsis and a smaller number of Hutus were killed in just a hundred days, and the Srebrenica massacre where 7000 Bosnian Muslims perished, the international community, failed to respond effectively.1 The attitude of the international community as Kofi Annan put it in his 1998 speech to the DitchleyFoundation, was, “so long as the conflict rages within the borders of a single State, the old orthodoxy would require us to let it rage.”2 The old orthodoxy espoused the inviolability of state sovereignty and non-intervention. The crises in the 1990s and the inability of the Security Council to react triggered debates as to whether the international community should continue to adhere unconditionally to the principle of non-intervention enshrined in Article 2(7) of the UN Charter, or whether the time had come to take a different course.3
At the centreof the debates was how the international community should react when the fundamental human rights of populations are grossly and systematically violated within the boundaries of sovereign states, and this heightened the need for a reappraisal of armed humanitarian intervention. These debates culminated in the establishment of the International Commission on Intervention and State Sovereignty (ICISS) in 2000 by the Government of Canada, with the mandate “to build a broader understanding of the problem of reconciling intervention for human protection purposes and sovereignty.”4 The ICISS came up with the concept of R2P, which articulated the basic principles that sovereignty implies responsibility and this responsibility primarily lies on the state to protect its people, but where the state is unwilling or unable to discharge this responsibility, its sovereignty has to yield to the broader international community’s residual responsibility to protect the vulnerable population.5 R2P was unanimously adopted by the 2005 World Summit of more than 170 world leaders6 as the roadmap for responding to mass atrocity crimes of genocide, war crimes, ethnic cleansing, and crimes against humanity.7 This was the largest gathering of world leaders at the UN,8 and the unanimous adoption of R2P demonstrated the importance that the world community attaches to the protection of victims of atrocities. The significance is that the head of states and governments who gathered at the summit made it clear that the perpetration of any of the specific four crimes of genocide, war crimes, ethnic cleansing, and crimes against humanity constituted a just cause for the application of R2P. However, the world leaders emphasised the use of peaceful and diplomatic means in resolving humanitarian crises, and recommended the use of force only when the state authorities manifestly failed to protect their population from the four crimes.
The chapter argues that the principle of a state’s responsibility to protect its nationals predates the formulation of the concept of the Responsibility to Protect (R2P) formulated by the ICISS, because, prior to the formulation of R2P, it was recognised by states that they could not treat their nationals in any manner they chose,and therefore, R2P is founded on an existing body of law, and not on new theories,9 and should be “best understood as a reaffirmation and codification of already existing norms.”10 Furthermore, the idea that states have a duty to protect the welfare of their citizens has a foundation in human rights law, and is a restatement of already existing responsibility of states and the international community11to ensure that human rights are respected within their boundaries.12 Thus, the powers of sovereigns have always been limited, and therefore, the Westphalian traditional notion of unfettered supremacy of state sovereignty and the right of non-intervention were debunked even before the formulation of R2P. Sovereignty has never been absolute, and therefore, any claim that the ICISS introduced a new concept calculated to derogate traditional sovereignty is unwarranted, because limits on sovereignty, dictated by respect for the human rights of citizens, were already recognised before the formulation of R2P by the ICISS. As observed by UN Secretary-General Ban Ki-moon, the responsibility of a state to protect its population derives from the nature of state sovereignty itself, and from the “pre-existing and continuing legal obligations of States, not just from the relatively recent enunciation and acceptance of the responsibility to protect.”13
However, what is novel about the work of the ICISS was that it sought to develop international consensus on the problem of reconciling intervention for human protection purposes and sovereignty.14 The Commission did this by placing emphasis on the following: the state’s primary responsibility to protect its own people; the international community’s residual responsibility to protect the people when the state is unwilling or unable to discharge this responsibility, and, recommending the use of coercive military force among other measures to react to mass atrocities.15 The novelty of the Commission’s proposals was that it introduced the principles that the primary responsibility for the protection of its population lies with the state itself; but where the state is unable or unwilling to protect its people, then the international community should not stand idly by, but exercise its responsibility to protect victims of excessive human rights violations, through the use of force, should non-coercive measures prove inadequate; and furthermore, in order to ensure that the conflict that gave rise to the intervention does not reoccur, the interveners had a responsibility to address the root causes of the conflict and also stay long enough to contribute to the reconstruction of the affected state.
To further buttress the argument that the notion that sovereigns have the responsibility to protect their populations is not an entirely new idea, reference is made to human rights espoused in instruments such as the UN Charter 1945, the Universal Declaration of Human Rights 1948, the Genocide Convention 1948, the Geneva Conventions 1949, the International Covenant on Civil and Political Rights (ICCPR) 1966, and the International Covenant on Economic, Social and Political Rights (ICESR) 1966, as well as the writings of early modern European political theorists such as Hugo Grotius, Emmerich de Vattel, John Locke, and Jean Jacques Rousseau to demonstrate that they shared the view that sovereigns had a responsibility to protect the safety of their people despite the fact that they were advocates of absolute sovereignty.16 The point is that the idea of sovereignty as a responsibility has historical roots going back to a time when human rights did not have the same prominence they do now, and therefore, in the contemporary international order with the widespread recognition of human rights, the principles espoused by R2P ought to be embraced and should not be seen as a licence for powerful countries to intervene in the affairs of weaker states.The rights contained in the human rights instrumentsand the ideas of the early modern European philosophers laid the groundwork for the formulation of R2P by the ICISS, and possibly played a role in the unanimous endorsement of R2P by world leaders at the 2005 World Summit.
The chapter gives a brief account of Africa’s notion of sovereign responsibility and the connection with R2P. Failure of the international community to halt the Rwandan genocide persuaded African countries that if future atrocities on the continent were to be avoided, then there was the need for a security mechanism that laid down what was to be done to prevent or halt gross violations of human rights. Thus, Africa’s regime for peace and security was developed from the mid-1990s when Africa was faced with many of the issues later raised in connection with R2P17such as armed conflicts in Liberia, Somalia, Algeria and Lesotho; and regional and sub-regional organisations in Africa, in particular the OAU, ECOWAS, SADC, and the Inter-Governmental Authority on Development had to find ways to resolve these conflicts themselves, which were manifested in military intervention.18 An example was the military intervention by ECOWAS in Liberia in 1990, through ECOMOG, the Ceasefire Monitoring Group of the organisation, and again in Sierra Leone in 1998 in the face of UN Security Council’s inaction.19 Therefore, before the establishment of the ICISS and the formulation of R2P, Africa had already established the principle that, in the face of egregious violation of human rights, it was legitimate to intervene in the affected state to protect vulnerable populations by military force in order to redress grave humanitarian crises.20 Thus, even though R2P may have been considered by others as a tool for powerful countries to meddle in the affairs of weak countries in the name of human rights, Africa appreciated R2P as an endorsement of its existing security mechanism, and this prepared the way for the unanimous endorsement of the concept at the 2005 World Summit.
The chapter further discusses the impact of the conceptualization of “sovereignty as responsibility” by Francis Deng and Roberta Cohen on the evolution of R2P;21 for although the ICISS developed R2P, the Commission’s recommendations followed a path laid out by Francis Deng and Roberta Cohen.22 The R2P Report was built on Deng’s earlier work, which declared sovereignty as a responsibility primarily resting on a state with a residual international responsibility to protect where the state is unwilling or unable to discharge that responsibility.23 The idea of international responsibility to take enforcement action to protect human rights inside the territories of states emerged from their concept that a state has a responsibility to protect internally displaced persons.24 Their concept of “sovereignty as responsibility” meant that sovereignty carries with it the responsibility on the part of governments to protect its citizens, and stipulates that when states are unable to provide protection to their people from serious harm, they are expected to call for external assistance and accept such assistance. 25 If they refuse and their people continue to suffer, the international community will intervene.26 Their idea of “sovereignty as responsibility” was the “direct precursor of ICISS’s responsibility to protect.”27
The chapter discusses humanitarian crises during the 1990s, which triggered debates about how the international community should react to gross human rights abuses within the boundaries of sovereign states, and the need for a reappraisal of armed humanitarian intervention culminating in the establishment of the International Commission on Intervention and State Sovereignty (ICISS) in 2000 and the articulation of the concept of R2P.The international community’s failure to respond effectively to the humanitarian crises in several countries in the 1990s generated debates as to whether human rights should trump sovereignty in the face of egregious human rights abuses, and this culminated in the establishment of the ICISS, with the mandate to find a balance between sovereignty and human rights.The chapter investigates international action or inaction in the face of humanitarian crises during the 1990s in Northern Iraq (1991), Somalia (1992), Rwanda (1994), Bosnia (1993-1995), Haiti (1994-1997), and Kosovo (1999). The atrocities committed during these crises provided the immediate impetus for the need to develop a mechanism which would ensure the prevention of mass atrocities and the protection of victims; hence, these crises can be said to have played defining roles as stimuli for the formulation of R2P.The chapter argues that these crises played a critical role, and brought the idea of international intervention in conflicts within state borders to the centre of international legal and political discourses. The atrocities committed during these crises galvanised international determination that sovereignty should never again be a barrier to international coercive action to halt gross human rights abuses within the territory of a state. Iyi concurs that the failure of the international community to respond to these humanitarian crises brought the controversial doctrine of humanitarian intervention “on the front burner.”28 The 1999 NATO intervention in Kosovo which was conducted without United Nations Security Council authorization, brought the controversy to a climax,29 because it set a dangerous precedent in bypassing the Security Council, and also because the intervention caused more harm than it averted,30 by killing a large number of civilians and destroying the infrastructure of Serbia.31 There was serious disagreement among members of the Security Council, centring on the disregard for the existing international order, which is based on the inviolability of state sovereignty, issues of legal justification, and the manner in which the intervention was carried out.32 The Kosovo intervention and the perpetration of genocide, war crimes, ethnic cleansing, and crimes against humanity within other states’ borders in the 1990s caused former Secretary-General of the United Nations Kofi Annan to pose a challenge to the international community in his Millennium Report, to find a balance between respect for sovereignty and the need to the protect human rights.33 In response to this challenge, the Canadian Government established the ICISS with the mandate to build a broader understanding of the problem of reconciling intervention for human protection purposes and sovereignty.34 The ICISS formulated the concept of R2P, with the theme that a state’s sovereignty is to be respected, but where a state fails to discharge its primary responsibility to protect its nationals, its sovereignty yields to the international community’s responsibility to protect in furtherance of its mandate to find a balance between respect for sovereignty, and the imperative to protect victims of internal mass atrocities.
The chapter discusses the establishment of the ICISS and the basic principles of R2P articulated in the ICISS Report, that: “State responsibility entails responsibility and the primary responsibility for the protection of its people lies with the state itself; where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non- intervention yields to the international responsibility to protect.”35 This is due to the worldwide recognition of human rights and the acknowledgement by the international community that the manner in which a state treats its citizens is not the sole business of the state, but also a matter of concern to the international community. The chapter discusses the idea of state sovereignty as responsibility and the residual responsibility of the wider international community to protect, because intrastate conflicts generated by gross human rights abuse can have regional and international implications, and therefore, the international community also has an interest in the manner a state treats its nationals.
LIST OF ABBREVIATIONS
a) AIM OF THE THESIS
b) DEFINITION OF THE PROBLEM
c) NATURE AND SCOPE OF INQUIRY
d) HUMANITARIAN INTERVENTION AND RESPONSIBILITY TO PROTECT: A BRIEF HISTORICAL AND CONTEXTUAL BACKGROUND
e) THE RESPONSIBILITY TO PROTECT
f) FOCUS ON USE OF COERCIVE MILITARY FORCE IN THE IMPLEMENTATION OF THE DOCTRINE OF RESPONSIBILITY TO PROTECT: A JUSTIFICATION
g) SIGNIFICANCE OF THE THESIS
i) LITERATURE REVIEW
j) CONCLUSIONS AND THE STRUCTURE OF THE STUDY
CHAPTER 1 HISTORICAL DEVELOPMENT OF STATE SOVEREIGNTY AND HUMANITARIAN INTERVENTION
1.2. State Sovereignty
1.3. History and Evolution
1.4. Westphalian Sovereignty
1.6. Humanitarian Intervention
1.7. State Practice of Sovereignty and Humanitarian Intervention in the Nineteenth and early Twentieth Century
CHAPTER 2 HUMANITARIAN INTERVENTION UNDER THE UNITED NATIONS CHARTER IN THE POST-COLD WAR ERA.
2.2. Part I – The Universalisation or Internationalization of Human Rights
2.3. Part II – State sovereignty and non-intervention in the United Nations System
2.4. Post-Cold War challenges to state sovereignty and the principle of non-intervention
2.5. Part III – The effect of the United Nations Charter on humanitarian intervention in the post-Cold War era
CHAPTER 3THE DEVELOPMENT OF THE RESPONSIBILITY TO PROTECT
3.2. Part I – Antecedents of Sovereign Responsibility
3.3. Part II – International Humanitarian Crises in the 1990s
3.4. Part III – The Establishment of ICISS and the Concept of R2P
3.5. From ICISS to the 2005 World Summit
4.2. Findings of the thesis
4.3. Discussion of the findings