Implementation of the Obstacles of Protection - Essay Example

? Responsibility to Protect and Obstacles in its Implementations Introduction The centuries-old dialectic between sovereignty and human rights appeared to undertake a fundamental re-alignment when the General Assembly recognized the new concept of "responsibility to protect"1 at the 2005 UN Summit. In paragraphs 138 and 139 of the Outcome Document ofthe Summit, the Assembly endorsed the principle that sovereignty was not just a right but a responsibility, and established that all nations have a "responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity" (World Summit Outcome 31). In so doing, the Assembly deliberately rejected the old paradigm that viewed sovereignty and human rights as diametric opposites of a horizontal continuum, and embraced the notion that the two principles necessarily reinforce each other. In paragraph 139 of the Document, the Security Council was recognized as possessing the right to authorize force under Chapter VII to prevent genocide, war crimes, ethnic cleansing, and crimes against humanity where "national authorities manifestly fail" to protect their own populations" (World Summit Outcome 31). This recognition has decisively broadened the legal effect of Article 39 of the Charter - it is now fully settled in law that the Security Council may use force in contained domestic crises where atrocities are being committed. The principal argument of this paper is that notwithstanding the advancements of "responsibility to protect", the doctrine in its present form has serious shortcomings that could leave the Security Council without clear parameters and guidelines for dealing with future genocides. R2P fails to meet the needs of civilians due to the non-intervention norm enshrined within the Charter. It is vital that more work be done to develop clearer standards and benchmarks in the determination of responsibility to protect. Barriers Implementing R2P R2P, while specifically addressing humanitarian interventions, is a doctrine which is not legally binding. R2P merely serves to clarify the criteria permitting intervention. The criteria are just cause, right intention, last resort, right authority, proportional means, and reasonable prospects. Just cause determines the grounds under which humanitarian interventions may occur. The ICISS identified genocide and large-scale ethnic cleansing, actual or imminent. Right intention prohibits intervention for the sake of regime change or other national interests. The intervention must be solely based on humanitarian motives. The last resort criterion determines that all non-military means of conflict prevention must be exhausted before relying on the use of military force. The right authority criterion clarifies that while the UN Security Council is the primary vehicle for authorising intervention, it may also, in the case of UNSC paralysis, be authorised by regional organisations such as North Atlantic Treaty Organisation (NATO), the European Union (EU), or the African Union (AU). Proportional means is the idea that the scale, duration, and planned military intervention are the minimum of what is necessary to secure the defined objective. This assures the country in which the intervention is taking place that the intervention is merely temporary and that sovereignty will be returned in the shortest time possible. The final criterion; reasonable prospects, is perhaps the most important. It is the idea that an intervention will only take place if the consequences of such action will not be worse than doing nothing (Matt 31). However, like all legal conventions, R2P is subject to interpretation. There is nothing in R2P which prevents states from arguing that the just cause threshold has not been crossed or that the responsibility to protect lies with the host state and not the international community. It is stated within the R2P report that it is a pro-sovereignty doctrine, and that the responsibility to protect lies first with the state and then with the international community (Matt 35). Given that R2P is not legally binding, and that the Genocide Convention does not specify what action is necessary to prevent genocide, the UN Charter becomes the most legally binding and most authoritative source regarding the use of force. However, nowhere in the Charter are the words 'humanitarian intervention' ever mentioned. The Charter is essentially non-interventionist. Article 2(4) declares that states must, "refrain in their international relations from the threat or use of force against the territorial integrity and political independence of any state, or in any other manner inconsistent with the purpose of the United Nations," and Article 2(7) prohibits states from interfering in the domestic affairs of any state (Jocelyn 74). When the international community does undertake a humanitarian intervention, it usually does so under one of the two exceptions to Article 2(4) of the Charter - Article 51 which permits the use of force in self-defence, or Chapter VII which permits states to respond to threats to international peace and security. However, legal realists argue that the basis for intervention does not lie solely with legal texts, but also with customary international law (Allen 143). Moreover, when interventions were undertaken after the drafting of the Charter, by India, Tanzania, and Vietnam in East Pakistan, Uganda and Cambodia respectively, humanitarian justifications were not claimed, despite clear humanitarian outcomes (Jocelyn 125). Critics of humanitarian intervention argue that the doctrine of humanitarian intervention in customary law was so abused that it had become worthless (Jocelyn 130). Human rights abuses were used as a pretext to intervene for self-interested purposes, and were ignored when intervention did not suit their interests. When the international community does intervene, it is often under Chapter VI, or even worse, an ill-conceived mix of Chapter VI and Chapter VII. While Chapter VII authorizes the use of force to respond to threats to international peace, Chapter VI authorizes the peaceful settlement of disputes. Chapter VI is most often associated with peacekeeping - a concept developed by Canadian Lester B. Pearson to respond to interstate conflict by positioning lightly-armed neutral troops along the border of two states with the consent of the host states. Peacekeeping is nowhere mentioned in Chapter VI or anywhere else in the Charter. Due to both the military and consensual nature of peacekeeping, it has often been referred to as Chapter VI and a half (Holzgrefe 39). However, while traditional peacekeeping has been relatively successful in inter-state conflicts, it has been more difficult in intra-state conflicts, where there has often been no functioning government from which to obtain consent, where there have been no borders to monitor and where lightly armed troops have not been enough to protect peacekeepers, much less those they were sent to protect (Edward 38). The confusion of using a Chapter VII mandate and operating under Chapter VI principles and guidelines has often led to disastrous consequences. In Bosnia where such a mix of a Chapter VII mandate and Chapter VI principles were attempted, peacekeepers feared using force to protect civilians because it would go against the principles of impartiality and neutrality. Peacekeepers were instructed to use force only in self-defence, in accordance with Chapter VI principles; therefore, they could defend themselves against an attack from the Serbs, but not the Bosnian Muslims they were there to protect (Thomas et al., 2001, p. 89). This created a false sense of hope as civilians felt they would be safe in a UN protected area. In reality, the UN safe areas were among the least safe areas of Bosnia. Concerns of legality have also been extended to whether interventions occurring unilaterally or by regional organizations require UNSC authorization. The issue was raised in particular after NATO intervened without UNSC authorization in Kosovo in 1999. Most have concluded that although it was technically an illegal intervention, it was justified under the circumstances (Thomas et al., 2001, p. 92). Debates have raged as to whether this represents a new precedent or whether this should be considered an exceptional case. The questionable legality of humanitarian intervention combined with concerns of when sovereignty can and should be violated, whether consent is necessary, and how much force is permitted, has led to confusion as to the circumstances under which intervention should be undertaken (Holzgrefe 39-40). This can be demonstrated by the inaction in Rwanda in 1994, and what many consider to be illegal action by NATO's unauthorized intervention in Kosovo in 1999. Although the UN Charter permits regional organizations to intervene, through Chapter VIII, such action must be authorized by the UNSC. The Responsibility to Protect doctrine was meant to address the confusion as to when and by whom intervention should be undertaken (Matt 35). As noted earlier, R2P states that right authority lies with the UNSC but in the case of paralysis, this should not preclude intervention by a regional organization (Stuart, 2005, p. 195). Some activists and academics have argued that R2P has the potential to shame states into action; however, Alex Bellamy (148) argues that ‘this view overlooks the problem of indeterminacy and is based on unproven assumptions that external pressure can persuade states to act in a humanitarian crisis’. In fact, all legal instruments permitting intervention have been sufficiently ambiguous in their codification as to allow interpretation. Whether greater codification is needed to enforce compliance with the intervention norm is a matter of great debate. Jane Stromseth (260) argues that codification would not only be difficult due to disagreement among states, it would also be counterproductive, as states who might otherwise support intervention on a case-by-case basis, would be against any formal codification. Furthermore, F. Honig (63), argues that codification should not be attempted of subjects which are likely to provoke dissention. Proponents of greater codification argue that it would help safeguard the rights of civilians. The current Charter, they argue fails to meet the needs of civilians due to the non-intervention norm enshrined within the Charter. Humanitarian intervention should therefore be institutionalized within a new security framework. While it may not eliminate abuse entirely, proponents argue that it might help limit the scope for abuse through shared norms. Opponents of greater intervention argue on the contrary that it would be a pretext for abuse. Such a framework would be dominated by western states, which could then undermine the sovereignty of non-western states (Chandler 60). Mohammed Ayoob argues that institutionalizing a right of intervention or a 'responsibility to protect' would lead to the creation of' standards of civilization,' where only those countries that have reached a certain standard of civilized behaviour have the right to attain sovereign status (Ayoob 85). Ayoob also fears that a codified right of humanitarian intervention has the potential to be used as a tool by strong states (Ayoob 85). Neil MacFarlane, Carolin Theilking and Thomas G. Weiss (979) have also noted that it is the most powerful states which decide whose human rights justify departure from the principle of non-intervention. Indeed, the current record of humanitarian intervention demonstrates the selectivity with which the norm has been applied, with interventions in Somalia and Kosovo, but not in Rwanda or Darfur. Ayoob has argued strongly that it is impossible to discern whether an intervention is being undertaken for altruistic reasons or reasons of self-interest (Ayoob 85-86). The controversy provoked by R2P further demonstrates the difficulties in codification. On the one hand, the non-aligned have rejected the concept, fearing the potential for abuse; on the other hand, the US rejects it on the grounds that it cannot agree to the use of military forces where there are no national interests and to criteria that would constrain its right to decide when and where to intervene. Russia and China meanwhile refuse to consent to a concept which permits the use of force without UNSC approval (Terrence and Ahmed 101). While there is little disputing the great moral strength of efforts at creating a workable doctrine of humanitarian intervention through R2P, and potentially greater codification in the future, the controversy makes it difficult to attain agreement. The result is often a lack of clarity. This can be seen not only in R2P but also certain aspects of the Genocide Convention and the UN Charter. While several scholars, including Martha Finnemore and Kathryn Sikkink ( 906-907) have noted that norm clarity makes norm compliance more likely, it is unclear whether further codification and greater clarity is truly desirable in the case of humanitarian intervention, and to what extent it would impact state behaviour. Given the difficulty of distinguishing between genocide, ethnic cleansing, large-scale killing, and civil wars, it may be difficult to prevent interpretation according to state interests, even with further codification. Further codification may also have the effect of restricting the conditions under which intervention is permitted, thereby preventing those who would like to intervene for humanitarian purposes from doing so. However, what is clear is that without greater codification, there will always remain great concerns. Conclusion and Recommendations In sum, "responsibility to protect" in its present form has serious shortcomings that could leave the Security Council without clear parameters and guidelines for dealing with future genocides. During the crisis in Darfur, the formulations contained in the ICISS Report - which are clearer and more detailed than those agreed to in the Outcome Document - left the Security Council unable to determine when it became responsible for the protection of the Darfurians.2 The result was that a government implicated in the murder of an estimated 73,000 to 170,000 of its own civilians was repeatedly held to bear the "responsibility to protect" such civilians. It is paramount that more work be done to develop clearer standards and benchmarks in the determination of responsibility to protect. Firstly, the UN must determine when the responsibility to protect shifts from the host state to the international community. It is posited here that when thousands of civilians have been killed, there ought to be a rebuttable presumption that the responsibility has shifted to the Security Council, and the host state should be responsible for discharging that presumption before the Council. Compliance with resolutions must be measured against bottom line results ­and not communiques or "positive steps". Eleven thousand deaths in three and a half weeks, when verified by a competent UN body, is sufficient to establish definitive proof of "unwillingness or inability" to exercise responsibility. Moreover, when UN fact­ finding missions conclude that a host government has engaged in state-directed massacres of its own civilians, this must constitute conclusive proof of "unwillingness" to exercise responsibility - regardless of the number of deaths. A presumption of unwillingness should no longer be dischargeable at that point. Secondly, further developments to "responsibility to protect" must declare unequivocally that the consent of the host state to an intervention is not required in extreme cases of humanitarian emergency. "Sovereignty as responsibility" must mean that a host state loses the constituent elements of sovereignty when it commits atrocities and genocide. Under international law, sovereignty is no longer an absolute defence to moral responsibility. This principle must be agreed to in unambiguous terms. Finally, the Security Council must tackle the difficult issue of "precautionary principles" in the near future. A clear formulation of "right intention", "proportional means", and "last resort" would be a good start. Currently, dictators and Security Council members alike are in the dark about the proper meaning of "on a case by case basis". International law is not well served by the existence of this ambiguity, and nor are the world's most vulnerable peoples. It is a fair criticism to suggest that even the development of clearer benchmarks would not stymie the efforts of Council members who wish to avoid intervention in the future. The debacle in Darfur does nothing if not demonstrate the resourcefulness of states unwilling to intervene in other states on human rights grounds. However, the existence of clearer standards will make reasoned arguments increasingly difficult to sustain on an objective basis where genocide is occurring. Moreover, the making of untenable arguments will clearly expose the values divide on the Security Council, and provide a moral and policy foundation for the exercise of humanitarian intervention under the auspices of NATO or the AU. It is a virtual certainty that at some point the Security Council will be unable to arrive at a consensus in a grave human rights crisis, and as such, the moral and legal principles underpinning responsibility to protect are unlikely to remain circumscribed in Security Council prerogative. Work Cited Allen G. Sens, "From PeaceKeeping to Peace-Building: The United Nations and the Challenge ofIntrastate War," in eds. Richard M. Price and Mark W. Zacher, The United Nations and Global Security, New York: Palgrave, 2004. Ayoob, Mohammed, “Humanitarian Intervention and State Sovereignty”, International Journal of Human Rights, 6(1): (2002), 81-102. Bellamy, A, "Whither the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit," Ethics & International Affairs, 20(2); (2006), 143-169 Chandler, David (2004), "The Responsibility to Protect? Imposing the 'Liberal Peace'" International Peacekeeping, 11(1), 59-81. Edward N. Luttwak, "Give War a Chance," Foreign Affairs, July/August, (1999). 78-4 (1999): 36-44. Finnemore, M. and Sikkink, K. “International norm dynamics and political change”. International Organization: International Organization at Fifty: Exploration and Contestation in the Study of World Politics 52(4), (1998), 887-917. Holzgrefe J.L., The humanitarian intervention debate, in Holzgrefe, J.L., & Keohane (eds.), R.O., Humanitarian Intervention: Ethical, Legal and Political Dilemmas, Cambridge University Press, 2003 . Honig, F. "Progress in the Codification ofIntemational Law," International Affairs, 36(1): (1960), 62-72 Jocelyn Coulon, Soldiers of Diplomacy: The United Nations, Peacekeeping, and the New World Order, trans. By Phyllis Aronoff and Howard Scott, Toronto: University of Toronto Press, 1998. MacFarlane, Neil., Theilking, Carolin., Weiss, Thomas G. (2004), "The Responsibility to Protect: is anyone interested in humanitarian intervention?" Third World Quarterly, 25(25); 2004, 977-992. Matt Deutscher, "The Responsibility to Protect," Medicine, Conflict and Survival, 21(1): (2005), 28-34. Stromseth, Jane "Rethinking humanitarian intervention: the case for incremental change," in Holzgrefe, J.L., & Keohane (eds.), R.O., Humanitarian Intervention: Ethical, Legal and Political Dilemmas, Cambridge University Press, 2003 . Stuart D. Stein, "Conceptions and terms: templates for the analysis of holocausts and genocides," Journal of Genocide Research, 7(2), 2005,171-203. Terrence, Lyons and Ahmed I. Samatar, Somalia, State Collapse, Multilateral Intervention, and Strategies for Political Reconstruction, Washington, D.C.: The Brookings Institution, 1995. World Summit Outcome, U.N. General Assembly 2005. Information Retrieved January 01, 2012 from http://responsibilitytoprotect.org/world%20summit%20outcome%20doc%202005%281%29.pdf Read More