16th May 2012
But we live in interesting times. Since then twitterwonderland has lol-ed into Leveson hysteria at David Cameron’s hitherto mis-comprehension of the meaning of “LOL” according to the now charged with criminality Rebekah Brooks. France has a new left-wing President who brought with his instant visit to Merkel’s Germany some bad news and inclement weather. Greece is still on its in/out EU game and Ed Miliband is talking to Tony Blair & even Peter Mandelson who is talking to Ed Balls. Elsewhere, Bosnian Serb army commander Ratko Mladic is on trial in The Hague 20 years after the start of the conflict, charged with 11 counts of war crimes and crimes against humanity, including the massacre of more than 7,000 Muslim men and boys at Srebrenica in 1995. And Charles Taylor at his own Hague trial says he sympathises with victims of the civil war in Sierra Leone he helped foment. That would be THIS Sierra Leone. and yet some braincell-challenged little tweeps still see Tony Blair as just as evil as Taylor, yes and even Mladic. Mladic of THIS kind of Kosovo ethnic cleansing.
WOW! Isn’t life grand?
So where was I?
Oh yes, Syria and the Right/Responsibility to Protect.
As Kofi Annan’s UN monitors come under attack and the rest of the world looks away at all its other problems why do we not care a little more about the ongoing carnage in Syria? After all, don’t we have a right, even a responsibility to protect?
DOES THE WORLD HAVE A RESPONSIBILITY, EVEN A RIGHT TO PROTECT?
UN Secretary General Ban ki-Moon, UN report January 2009. That was more than 3 years ago. (See pdf file)
“When a State nevertheless was “manifestly failing” to protect its population from the four specified crimes and violations, they confirmed that the international community was prepared to take collective action in a “timely and decisive manner” through the Security Council and in accordance with the Charter of the United Nations.” Source
In the light, or rather darkness of the unfolding situation in Syria, some may wonder -
WHY does the UN fail to ACT decisively in Syria?
Surely the R2P (RtoP) gives the UN the right AND responsibility to act in defence of the Syrian people being massacred? Sadly, yes and no, though not necessarily in that order. A little like so-called International Law, it depends.
The responsibility to protect (RtoP or R2P) is a United Nations initiative established in 2005. It consists of an emerging norm or set of principles, based on the idea that sovereignty is not a privilege, but a responsibility. RtoP focuses on preventing and halting four crimes: genocide, war crimes, crimes against humanity, and ethnic cleansing, which it places under the generic umbrella term of Mass Atrocity Crimes.
The Responsibility to Protect has three “pillars”.
- A state has a responsibility to protect its population from mass atrocities.
- The international community has a responsibility to assist the state if it is unable to protect its population on its own.
- If the state fails to protect its citizens from mass atrocities and peaceful measures have failed, the international community has the responsibility to intervene through coercive measures such as economic sanctions. Military intervention is considered the last resort.
So, did you get that? If pillar 1 is missing, as in Syria, pillar 2 and then 3 are written into the UN Charter including the “last resort”. But -
In the international community RtoP is a norm, not a law. RtoP provides a framework for using tools that already exist, i.e. mediation, early warning mechanisms, economic sanctioning, and chapter VII powers, to prevent mass atrocities. Civil society organizations, States, regional organizations, and international institutions all have a role to play in the R2P process. The authority to employ the last resort and intervene militarily rests solely with United Nations Security Council and the General Assembly.
KOFI ANNAN and “History”
The world watches and waits in despair as Kofi Annan struggles to balance the fact that the UN does NOT practise what it preaches. It is like the drunkard who says in moments of sober lucidity “I’ll never touch the stuff again”, until the next time. The UN, which is meant to DO good, as well as sound good, is limited by its own shortcomings as well as by many of its membership.
Following the genocide in Rwanda and the international community’s failure to intervene, former UN Secretary General Kofi Annan asked the question – “when does the international community intervene for the sake of protecting populations?” In 2000, the UN explicitly declared its reaction to Rwanda a “failure”. Then Kofi Annan said of the event – “The international community failed Rwanda and that must leave us always with a sense of bitter regret.”.
The Canadian government established the International Commission on Intervention and State Sovereignty (ICISS) in September 2000. In February 2001, at the third round table meeting of the ICISS in London, Gareth Evans, Mohamed Sahnoun and Michael Ignatieff suggested the phrase “responsibility to protect” as a way to avoid the “right to intervene” or “obligation to intervene” doctrines and yet keep a degree of duty to act to resolve humanitarian crises.
In December 2001, the ICISS released its report, The Responsibility to Protect. The report presented the idea that sovereignty is a responsibility and that the international community had the responsibility to prevent mass atrocities. Economic, political, and social measures were to be used along with diplomatic engagement. Military intervention, as mentioned before, was presented as a last resort. R2P included efforts to rebuild by bringing security and justice to the victim population and by finding the root cause of the mass atrocities.
The African Union pioneered the concept that the international community has a responsibility to intervene in crisis situations if the State is failing to protect its population. In the founding charter in 2005 African nations declared that the “protection of human and peoples rights” would be a principal objective of the AU and that the Union had the right “to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity.” The AU also adopted the Ezulwini Consensus in 2005, which welcomed RtoP as a tool for the prevention of mass atrocities.
Forgive me if I am sceptical here, but it seems to me that mention might have been made of Tony Blair’s Doctrine of the International Community (1999) and of the Iraq intervention. In the latter case the roles such as George Bush and Tony Blair and others played in incidentally embarrassing the UN over its colossal failure to intervene in Iraq for 12 years. If an earlier intervention had been made it might have cut short Saddam’s 30 years slaughter of his own people.
The United Nations mandate
At the 2005 World Summit Member States included RtoP in the Outcome Document agreeing to Paragraphs 138 and 139. These paragraphs gave final language to the scope of RtoP. It applies to the four mass atrocities crimes only. It also identifies to whom the R2P protocol applies, i.e. nations first, regional and international communities second.
Paragraphs 138 and 139 state:
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 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 manifestly fail 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.
— 2005 World Summit Outcome Document.
In April 2006, the United Nations Security Council (UNSC) reaffirmed the provisions of paragraphs 138 and 139 in resolution (S/RES/1674). This formalized their support for the Responsibility to Protect. The next major advancement in RtoP came in January 2009, when UN Secretary-General Ban Ki-moon released a report called Implementing the Responsibility to Protect. His report led to a debate in the General Assembly in July 2009 and the first time since 2005 that the General Assembly had come together to discuss the responsibility to protect. Ninety-four member states spoke. Most supported the R2P principle although some important concerns were voiced. They discussed how to implement RtoP in crisis situations around the world. The debate highlighted the need for regional organizations like the African Union to play a strong role in implementing RtoP; the need for stronger early warning mechanisms in the United Nations; and the need to clarify the roles UN bodies would play in implementing RtoP.
One outcome of the debate was the first RtoP resolution adopted by the General Assembly. The Resolution (A/RES/63/308) showed that the international community had not forgotten about the importance of the responsibility to protect and it committed to further address the issues involved.
Threshold for military interventions
According to the International Commission for Intervention and State Sovereignty (ICISS) Report in 2001 (which was not adopted by national governments), any form of a military intervention initiated under the premise of responsibility to protect must fulfill the following six criteria in order to be justified as an extraordinary measure of intervention:
- Just Cause
- Right Intention
- Final Resort
- Legitimate Authority
- Proportional Means
- Reasonable Prospect
Events that have involved mass atrocities since the Cold war:
- First Liberian Civil War in 1989-1996
- Gulf war in 1990 and aftermath
- Bosnian Genocide in 1992-95
- Rwandan Genocide in 1994
- Democratic Republic of Congo in 1998, and since
- Kosovo in 1999
- Battle of Grozny (1999–2000)
- Second Liberian Civil War in 1999-2003
- Darfur from 2003
- Kenya: post Kenyan presidential election, 2007 crisis
- Georgia (country): Georgian–Ossetian conflict August 2008
- 2011 Libyan civil war
RtoP and National Sovereignty
One of the main concerns surrounding RtoP is that it infringes upon national sovereignty. This concern is rebutted by the Secretary General Ban Ki-moon in the report Implementing the Responsibility to Protect. According to the first pillar of RtoP, the state has the responsibility to protect its populations from mass atrocities and ethnic cleansing, and according to the second pillar the international community has the responsibility to help States fulfill their responsibility. Advocates of RtoP claim that only occasions where the international community will intervene on a State without its consent is when the state is either allowing mass atrocities to occur, or is committing them, in which case the State is no longer upholding its responsibilities as a sovereign. In this sense RtoP can be understood as reinforcing sovereignty. However it is not clear who makes this decision on behalf of ‘international community’. Because of this in practical terms, RtoP is perceived as a tool of western countries to justify violations of sovereignty of other countries especially in developing world, using international institutions The West controls.
On March 19, 2011, the United Nations Security Council (UNSC) approved resolution 1973 which reiterated the responsibility of the Libyan authorities to protect the Libyan population. The UNSC resolution reaffirmed “that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians…” It demanded “an immediate ceasefire in Libya, including an end to the current attacks against civilians, which it said might constitute ‘crimes against humanity’… It imposed a ban on all flights in the country’s airspace, a no-fly zone, and tightened sanctions on the Qadhafi regime and its supporters.” The resolution passed with 10 in favor, 0 against and 5 abstains. Two of the five permanent members of the council abstained, China and Russia. The subsequent military action by NATO resulted in mixed opinions. Detractors of the intervention believe that problems in Libya are best resolved amongst Libyans.
The scope of RtoP is often questioned. The concern is whether RtoP should apply to more than the four crimes: genocide, war crimes, crimes against humanity, and ethnic cleansing. For example, should RtoP be used to protect civilians in peril following natural disasters? In general, the consensus is that the scope of RtoP should remain narrow and well-defined. At the General Assembly debate on RtoP in July 2009, several Member States reaffirmed the original scope of RtoP and said that broadening the applicability of RtoP could diminish its effectiveness.
In other words it was agreed to fail to agree.
Use of Military Intervention
The question of military intervention under the third pillar of RtoP remains controversial. Several states have argued that RtoP should not allow the international community to intervene militarily on States, because to do so is an infringement upon sovereignty. Others argue that this a necessary facet of RtoP, and is necessary as a last resort to stop mass atrocities. A related argument surrounds the question as to whether more specific criteria should be developed to determine when the Security Council should authorize military intervention.
Selectivity in the Security Council
Another concern surrounding RtoP is that the Security Council in the UN, when deciding to which crises RtoP applies, have been selective and biased. A veto from one of the five permanent members brings bias to the process. As an example, the UNSC did not vote to intervene in Chechnya because Russia opposed such action. This has been acknowledged as an issue of major concern, and has hindered the implementation of RtoP. Some of those involved advocate that the UNSC permanent members agree not to use their veto when proven mass atrocities are taking place.
Tony Blair’s 1999 “Doctrine of The International Community” was a valiant attempt, if ahead of its time, to put into words why the international community must learn to work and act together.
Because the “international community” (a misnomer if ever there was one) has not yet learned how to work and act together in the face of such refuseniks as Russia and China, we are where we are today. Frankly nowhere. This is not helped when international law as it is written and as it is adhered to and practised are not always the same thing.
I am on record as not supporting intervention in Syria. This is not because I wish to leave Syrians to be massacred by their own president – Assad. It is simply that until the international community (including the Arab world, Russia & China) gets itself organised as an entity I am not up to the lifetime job of arguing the reasons that western interventionists are right and are NOT “war criminals” for trying to stop such atrocities.
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