Rethinking the Responsibility to Protect: Challenged or Confirmed? 3031274113, 9783031274114

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Contributions to International Relations

Alexander Reichwein Mischa Hansel   Editors

Rethinking the Responsibility to Protect Challenged or Confirmed?

Contributions to International Relations

This book series offers an outlet for cutting-edge research on all areas of international relations. Contributions to International Relations (CIR) welcomes theoretically sound and empirically robust monographs, edited volumes and handbooks from various disciplines and approaches on topics such as IR-theory, international security studies, foreign policy, peace and conflict studies, international organization, global governance, international political economy, the history of international relations and related fields. All titles in this series are peer-reviewed.

Alexander Reichwein · Mischa Hansel Editors

Rethinking the Responsibility to Protect Challenged or Confirmed?

Editors Alexander Reichwein Department of Political Science Justus-Liebig-University Giessen Giessen, Germany

Mischa Hansel Institute for Peace Research and Security Policy (IFSH) University of Hamburg Hamburg, Germany

ISSN 2731-5061 ISSN 2731-507X (electronic) Contributions to International Relations ISBN 978-3-031-27411-4 ISBN 978-3-031-27412-1 (eBook) https://doi.org/10.1007/978-3-031-27412-1 © Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

This edited volume is the result of a European Workshops in International Studies (EWIS) Workshop titled Rethinking Responsibility. Military Humanitarianism beyond Western States in Tübingen in 2016. After NATO’s intervention in Libya, and against the background of civil wars in Syria and Yemen, but also because of the cynical invocation and support of the Responsibility to Protect by authoritarian states such as China or Saudi Arabia, the R2P norm is being heavily criticized. Sometimes, it seems as if the R2P is nothing more than political rhetoric and/or merely an instrument used by powerful states. In other cases, there is even a risk that R2P becomes a dangerous tool for revisionism and irredentism, as the Russian case shows. Hence, on the one hand, the R2P is challenged. But, on the other hand, institutional settings and dynamics, normative discourses, and contestation practices may have strengthened the norm’s robustness despite occasional abuses. Institutions, discourses and contestation, and new understandings and re-interpretations of responsibility and politics of protection, create new normative spaces and patterns of legitimacy. And these driving forces create new norm entrepreneurs, also outside the Western world. Therefore, the R2P is confirmed as well, although via different practices and discourses. It is worth discussing R2P’s roots, institutional framework, and evolution. It is necessary to disclose its weaknesses, pitfalls, and cases of instrumentalization for power politics. And it is time again to elaborate R2P’s comparable strength and its normative sticking power in discourses around humanitarian harm. Accordingly, the contributions discuss ways in which the R2P is challenged or confirmed, or both at once. We like to thank all workshop participants for making the workshop a success those days and for offering a chapter to this edited volume. We are also thankful to Johanna Polle, Ole Frahm, and Sassan Gholiagha who later submitted chapters on our request. We owe our debt to Lothar Brock who not only suggested the subtitle of this book but also offered very constructive advice throughout the project. Furthermore, we like to thank the series Contribution to International Relations editor, Johannes Gläßer, and the international Springer team for their steady interest in the project and theme,

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and their patience until we did resubmit the revised manuscript in January 2023. And we like to thank LIT Verlag who published our German language edited volume Die Internationale Schutzverantwortung: Etabliert. Herausgefordert. Gescheitert? in 2020 and permitted us to republish some chapters in a revised English version. Gießen/Frankfurt, Germany Hamburg, Germany 2022

Alexander Reichwein Mischa Hansel

Contents

Introduction: The Responsibility to Protect—Challenged or Confirmed? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mischa Hansel and Alexander Reichwein

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R2P—Institutions, Contestation, Discourse Spaces The International Implementation of R2P: Norm Contestation and Its Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gregor P. Hofmann

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Forums Do Matter: Examining the Norm Dynamics of the Responsibility to Protect (R2P) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Anne Peltner and Tanja Brühl

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R2P: Opening Discursive Spaces for Politics of Protection . . . . . . . . . . . . . Sassan Gholiagha

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Protection of Basic Human Rights by Exercising Graded Responsibilities: Linking the Responsibility to Protect with the Attribution of Extraterritorial Duties . . . . . . . . . . . . . . . . . . . . . . . . 105 Daniel Peters R2P in Practice R2P and Norm Localization: China’s Influence on the Development of R2P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Johanna Polle Punishing or Preventing? The Responsibility to Protect and the Wars in South Sudan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Ole Frahm

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Rethinking Turkey’s Approach to R2P: Turkish Foreign Policy Towards the Syrian Civil War 2011–2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Volkan Sey¸ ¸ sane and Çi˘gdem Çelik R2P—Promises and Pitfalls The Waning of Post-Cold War Western Preponderance in International Norm Politics: Its Impact on the International Protection of People from Domestic Violence . . . . . . . . . . . . . . . . . . . . . . . . . 221 Lothar Brock A Dangerous Responsibility: Towards a New Authoritarian Interventionism? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255 Mischa Hansel and Alexander Reichwein

Editors and Contributors

About the Editors Alexander Reichwein is Lecturer in International Relations at the Department of Political Science at the Justus-Liebig-University Giessen. He is also a Co-Speaker of the Norms and Changes in Global Politics research section at the Giessen Graduate Centre for Social Sciences, Business, Economics, and Law (GGS). Mischa Hansel is the head of the International Cybersecurity (ICS) research focus at the Institute for Peace Research and Security Policy (IFSH) at the University of Hamburg. He is also a Co-Speaker of the Norms and Changes in Global Politics research section at the Giessen Graduate Centre for Social Sciences, Business, Economics, and Law (GGS).

Contributors Lothar Brock Goethe University Frankfurt, Frankfurt/Main, Germany Tanja Brühl Technical University of Darmstadt, Darmstadt, Germany Çi˘gdem Çelik Department of Political Science and Public Administration, Turkish German University, Istanbul, Turkey Ole Frahm Department of International Relations, Center for Governance and Culture in Europe, University of St. Gallen, Switzerland & Kadir Has University Istanbul, Istanbul, Turkey Sassan Gholiagha European New School of Digital Studies, European University Viadrina, Frankfurt (Oder), Germany Mischa Hansel Institute for Peace Research and Security Policy (IFSH), University of Hamburg, Hamburg, Germany ix

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Editors and Contributors

Gregor P. Hofmann WZB Berlin Social Science Centre, Berlin, Germany Anne Peltner Department of Political Science, Goethe University, Frankfurt/Main, Germany Daniel Peters Departmental Branch of the Federal Police, Federal University of Applied Administrative Sciences, Lübeck, Germany Johanna Polle University of Hamburg, Hamburg, Germany Alexander Reichwein Department of Political Science, Justus-Liebig-University Giessen, Giessen, Germany Volkan Sey¸ ¸ sane Department of International Relations, Anadolu University, Eski¸sehir, Turkey

Introduction: The Responsibility to Protect—Challenged or Confirmed? Mischa Hansel and Alexander Reichwein

Abstract This introduction chapter provides the rationale for continuing in-depth discussions about the Responsibility to Protect as a major international norm to prevent mass atrocities. After introducing the main steps in the institutional and political evolution of the R2P, major debates and controversies around the R2P are summarised. These debates centre on the character and substance of the R2P, the dangers of being misused by states, and about norm contestation and its effects and consequences. Finally, against this background, the remainder of this introduction emphasises how each of the chapters in this volume contribute to these controversies on different institutional, practical, or normative levels.

This edited volume critically discusses and examines the Responsibility to Protect (R2P) as a guiding norm in international politics, and its complex and multidimensional relations to other norms such as sovereignty, self-determination, justice, or non-interventionism (Hofmann, 2019: 1). The volume is the result of the European Workshops in International Studies (EWIS) workshop Rethinking Responsibility. Military Humanitarianism beyond Western States held in Tübingen in 2016. It was organized by the volume’s editors.1 1

Bringing this volume and the single chapters together has been no small task, but an intellectual pleasure. We offer our thanks to all EWIS workshop participants, also to those who did not publish their paper in this volume due to alternative publication offers, for inspiring and helpful comments and suggestions, in particular Lothar Brock for his suggestion to frame the debate around the question Challenged or Confirmed?. We are grateful to the authors—Johanna Polle, Sassan Gholiagha and Ole Frahm have joined us later on our request—contributing to this volume for the intellectual inspirations, and all the patience they demonstrated during the lengthy preparation process of the M. Hansel Institute for Peace Research and Security Policy (IFSH), University of Hamburg, Hamburg, Germany e-mail: [email protected] A. Reichwein (B) Department of Political Science, Justus-Liebig-University Giessen, Giessen, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2023 A. Reichwein and M. Hansel (eds.), Rethinking the Responsibility to Protect, Contributions to International Relations, https://doi.org/10.1007/978-3-031-27412-1_1

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The volume’s key question is whether the R2P is challenged in terms of being instrumentalized by states pursuing interest-driven power politics at the global or regional level, or whether it is actually confirmed as a robust norm due to the efforts of and discourses between norm entrepreneurs, compliant nation-states or international institutions, nothwithstanding their different perspectives and motives. Lastly, we ask whether this is actually a misleading dichotomy, and whether the R2P might be both challenged and confirmed? The authors contributing to this theme from different theoretical perspectives and with a huge variety of empirical research focus on both the political and academic debates about the R2P in the discipline (I)nternational (R)elations. Some authors are to some extent sceptical that the R2P will affect actors’ behaviour in the spirit of the norm, while others are quite optimistic about the power of norms.

1 R2P’s Long Career—From Shadow to Substance? The R2P has made a long career. In 1999, in the aftermath of the Kosovo War, United Nations (U.N.) General Secretary Kofi Annan did launch the initiative and convened the International Commission on Intervention and State Sovereignty (ICISS) (Bellamy, 2009: 35–65; Cater & Malone, 2016: 285–288; Stahn, 2007: 102–104). The idea was to establish an institutional framework for interventions in extreme circumstances of humanitarian concerns to prevent the worst outcomes of mass atrocities (Cater & Malone, 2016: 278/279, 285; Pattison 2010). Those days, the international community was affected and shocked by both the brutality and inhumanity of what Mary Kaldor calls New Wars (Kaldor, 1999; see also Brock et al., 2011) in Somalia (1992), Bosnia (1992–1995) or Rwanda (1994). And the international community realized the U.N.’s ineffectiveness and inability to stop war crimes and crimes against humanity, ethnical cleansing, and genocide such as in Srebrenica (Cater & Malone, 2016: 282–284). After two years of negotiations at the U.N. level, in 2001, the ICISS presented the document The Responsibility to Protect (ICISS, 2001). In the following years, this document was debated and disputed in the U.N. High-Level Panel on Threats, Challenges and Change (Stahn, 2007: 105–107) and in the U.N. Security Council (Weiss, 2006: 748–753). The United States, China, Russia, France, and Great Britain (the P5) finally had been successful in re-defining the hierarchy of actors and responsibilities (Stahn, 2007: 118). According to the first pillar, or principle, each individual sovereign state has the responsibility to protect its citizens within its borders (paragraph 138). In line with the second principle, the international community should help and support states to protect if being invited by affected governments who are, for different reasons, not able to do so. The third pillar, finally, defines that manuscript. And we thank the publisher Springer, in particular International Relations publishing editor Johannes Gläser and his international team, for the professional interest in the volume from the very beginning. Finally, we also thank the anonymous reviewers of our manuscript.

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the international community is responsible for protecting populations from extreme human rights abuses and crimes, and that the international community should act in cases where governments manifestly have failed in their responsibilities (Fiott, 2015; Fiott & Koops, 2015; Hofmann, 2019: 7/8). The precondition for an intervention is a Security Council mandate (paragraph 139). And the P5 had been successful in re-defining the decision-making process: decisions on interventions have to be made in the Security Council unanimously, and not, as primarily defined in the 2001 first ICISS R2P version, majoritarian in the U.N. General Assembly (Hehir, 2019: 117–148; Weiss, 2006; Pattison 2010: 1–42).2 In September 2005, at the U.N. World Summit in New York, the General Assembly endorsed the—revised—R2P as an Outcome Document in GA Resolution 60/1 (Bellamy, 2009: 66–97; Stahn, 2007: 100, 108–110; Weiss, 2006). The Security Council explicitly reaffirmed the decision on the R2P in Resolution 1674 in April 2006 (Cater & Malone, 2016: 288; Stahn, 2007: 100). Later, the R2P was supported in the speech and Report of the U.N. Secretary-General Ban Ki-moon in September 2009 in the General Assembly and at the Sixth Annual R2P conference 2016 in Seoul, stating that ‘the discourse on R2P has focused on moving from principle to practice’.3 In the Global Centre for the Responsibility to Protect’s summary of the Seoul conference, it is said—and this is exactly in line with our challenged or/and confirmed theme—that ‘through roundtable discussions R2P Focal Points identified best practices and challenges in the prevention of mass atrocities’. After the 2005 World Summit, an academic debate in IR started whether the R2P is a norm binding its signatories, or just a tool of powerful states (Reinhold, 2014)? There was an increasing unilateralism in the name of human rights commitments and human rights protection in those days but on behalf of power interests (Bannon, 2006: 1160–1163; Brock, 2005, 2008; Cater & Malone, 2016: 291). However, at the same time, in the last 17 years after its endorsement, the R2P and its three defined responsibilities to prevent, to react, and to rebuild (Bellamy, 2009: 98–194) as well as R2P institutions such as U.N. Secretary-General’s Special Advisers4 became the main references when it comes to questions of interventions in order to protect human rights or human life (Cater & Malone, 2016: 278, 288). But many interventions, as in the case of Congo, Darfur, Myanmar, Sri Lanka, Syria, Xinjiang, or Yemen did fail or didn’t happen (Cater & Malone, 2016: 288–290).5 These cases reveal R2P’s ‘structural limitations’ (Mennecke & Stensrud, 2021).

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For a critique of the Security Council, see Bannon (2006), Loges (2013), Cater and Malone (2016: 286–288). 3 https://www.globalr2p.org/publications/summary-of-the-sixth-annual-meeting-of-the-global-net work-of-r2p-focal-points-june-2016-seoul-republic-of-korea/. See also Bellamy (2022), Thakur (2016). 4 The R2P Special Advisors so far have been Edward Luck, Jennifer Welsh, Ivan Šimonovi´ c, Karen Smith, and George Okoth-Obbo (since 2021). 5 For detailed empirical studies on Congo, Darfur, Myanmar, Sri Lanka, Syria, Yemen, and Xinjiang, see Afewerki (2022), Kapucu (2022), Karamik (2022), Mennecke & Stensrud (2021), Schmeer (2010), Wan Rosli (2022).

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Nevertheless, for many scholars in IR6 and international law (Hilpold, 2015; Ramopoulos, 2015; Verlage, 2009), the R2P is a universal norm worth to be (re)enforced if necessary, and a substantial and, normatively spoken, also wishful advancement (Badescu, 2011; Brock, 2008, 2013; Thakur, 2006: 250–251) compared to the Humanitarian Intervention (Wheeler, 2000; Wheeler & Owen, 2007; see also Pattison 2010: 1-42). The latter was characterized rather by arbitrary and selective engagement of powerful states outside the U.N. Charter foiling collective action (Brock, 2005; O’Connell, 2008, 2010). In contrast, the R2P is assumed by its advocates to increase and provide a legal framework, clarity, and certainty to make interventions and its consequences more predictable and manageable, and to enable the U.N. to react in a norm- and given identity-based way in line with standards of appropriateness and self-expectation (Finnemore & Sikkink, 1998: 891) as a provider of human rights to extreme cases of mass atrocities. At first glance, against the background of its history and evolution, it seems that the R2P is indeed both, challenged and confirmed.

2 Controversies Around the Responsibility to Protect Consequently, R2P’s status is still controversial within the U.N. and within the academic world. We identify three major debates in IR about the R2P so far, all circling around the challenged and/or confirmed issue.

2.1 Political Rhetoric or Emerging Legal Norm? The first, and older, debate centred on whether the R2P is an emerging and confirmed legal norm, or rather just traditional political rhetoric, a ‘political catchword’ (Stahn, 2007: 120), and ‘Old Wine in New Bottles’ (Stahn, 2007: 102, 110–116). To the critical voices assessing and challenging the R2P themselves academically—so called ‘R2P agnostics and atheists’ (Hehir, 2012; see Hofmann, 2019: 11–13)—it seems that the R2P is indeed about a new and affirmative understanding of sovereignty as responsibility (Cater & Malone, 2016: 285–288; see Deng et.al., 1996; Thakur, 2006: 251–257). But rather as a declaration of intention than of substantial sanction power. In other words, to the critics, R2P is rather an illusion of progress (Hehir, 2012: 3–12). Moreover, the critics concede that the R2P has raised international attention and consciousness regarding humanitarian suffering and the necessity to respond, and that R2P successfully defined four core crimes (Hehir, 2012: 5). But, according to Chandler (2011), there is a ‘gap between the promise and reality of the R2P’ in a Western liberal dominated discourse, or between ‘rhetoric 6

Bellamy (2015, 2011, 2009), Bellamy & Luck (2018), Bellamy et al. (2011), Evans (2008), Hofmann (2019), Peters (2020).

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and reality’ (Hehir, 2012). R2P is assessed as a limited norm (Hehir, 2019: 57–85). Hehir’s core argument is that until today, the R2P has not significantly improved the U.N.’s ability to respond effectively to large-scale intra-state crises and mass atrocities (Hehir, 2012: 2). Furthermore, there is an inconsistency of cases in which states do intervene and in which they do not, which is rather a matter of pure power politics considerations than of humanitarian ideals (Hehir, 2012: 5, 119–146; see also Hehir, 2013). Finally, Hehir warns against ‘moral suasion’ in cases of the use of force and issues of legitimization. He reminds us of the fact that great powers, and not the U.N. institutions or NGOs, capture the monopoly of violence, as the Libya case did show. And he reminds us that great powers (mis)use the R2P selectively in a humanitarian robe but in line with security or other national interests at the expense of international law (Hehir, 2012: 12–20, 259, 264). Hehir concludes that R2P needs structural reforms such as sanctions against states who do not comply with the principles and rules, standing U.N. military combat troops, and the decision-making process in the General Assembly (Hehir, 2012: 9, 12, 209–254, 259; see also Stahn, 2007: 117; see also Pattison 2010: 219–244). R2P critics present some more crucial arguments not against R2P as such but against the illusion that R2P is a norm that influences states’ behaviour. First, R2P is the result of a Western liberal institutionalist understanding of the U.N., humanitarian issues and assistance leading to incapacitation, protectorates, and new dependencies, and causing that military interventions become the rule instead of an exception (Chandler, 2011). A second argument is that the R2P helps the West to establish liberal Western institutions and a liberal hegemony (Chandler, 2004) after interventions. Thirdly, it is argued that R2P undermines and thwart the democratic principle of self-determination of nations and liberty for the benefit of hierarchy among states of the First World and the Global South in international politics (see Krause/Peters 2017), and economic relations between the capitalist core and its peripheries (Cunliffe, 2011). Optimistic voices—called the ‘R2P choir’ (Hehir, 2012)—celebrate the R2P as a institutionalized, internalized and confirmed norm (see Hofmann, 2019: 9–11). In a—IR theoretically spoken—liberal and constructivist vein, they assume a linear development from a normative idea via the ICISS, the High-Level Panel, and the World Summit to the endorsement and institutionalization of a norm (Bellamy, 2011: 8–25). They describe and sometimes theorize R2P’s implementation within the U.N. framework (Bellamy, 2011: 26–50) guiding political practice. These R2P advocates, quite contrary to the critics, argue that ‘2005 marked an important watershed’ (ibid.), and a normative step towards humanity. They argue that the R2P is a ‘significant turning point in attitudes towards the protection of citizens worldwide’ (Bellamy, 2009: 1–7). They argue that R2P is a ‘landmark commitment’ to prevent mass atrocities, symbolizing ‘the world’s normative pledge to R2P’ (Bellamy & Luck, 2018). They argue that R2P is a commitment that has an impact on state behaviour (in terms of compliance with legal obligations) and on how to deal with humanitarian crises (Bellamy, 2011: 51–70). They argue that R2P is a commitment that moves beyond states and the U.N. and the Security Council (Bellamy, 2011: 162–195) to include institutions and NGOs as norm entrepreneurs that also play a role in protecting vulnerable populations. They argue that R2P is a commitment based on the insight of ‘world

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leaders that sovereign rights entailed fundamental responsibilities’ (Bellamy, 2009: 1–7), and on its way ‘from promise to practice’ (Bellamy & Luck, 2018), or ‘from words to deeds’ (Bellamy, 2011). And they argue that R2P is a commitment resulting in a global moral consensus, including the Global South (Krause/Peters 2017). The R2P advocates refer on successful interventions such as Kenya and Guinea (Koç, 2022) and Côte D’Ivoire (Sava¸s-Cazala, 2022). According to Bellamy and his political agenda of supporting and defending the R2P (Bellamy, 2015), the R2P enables the U.N. and its institutions to advocate both for short-term emergency policies to temporarily stop the carnage and for medium- and long-term policies of early warning mechanisms and prevention of genocide and mass atrocities (Bellamy, 2011: 122– 141; see also Thakur, 2006). According to Bellamy, both lead to sustainable change within societies and governments (Bellamy & Luck, 2018), to economic development and democratization (Bellamy, 2011: 93–121), and to strengthening the U.N. principles and rules and the R2P. In this view, spill-backs in R2P norm evolution and non-interventions are rather a matter of a norm dispute between sovereignty and human rights; or a matter of single states’ lack of political will to spend resources in an early warning unit or to establish regional arrangements (Bellamy, 2011: 143–161); or single states’ strategic (non)use of the norm; or a matter of double standards in the relations to states in which human rights violations are accepted and not sanctioned, e.g. for economic reasons. Looking at the debate between Hehir, Chandler, and Cunliffe on the one hand, and Bellamy, Luck, and Thakur on the other hand, it seems that the status of the R2P as either challenged or confirmed is rather a matter of scholars’ interpretations of states’ practices and political attitudes towards the norm than a matter of fact derived from any analysis by means of objective criteria of effectiveness.

2.2 After Libya: The R2P as a Western Hegemonic Project? A second debate about the R2P as an instrument of Western liberal states took place in the context and after NATO’s Libya intervention in March 2011 (Cater & Malone, 2016: 289–290; Hehir, 2013; Hehir & Murray, 2013). It is an ongoing debate on the geopolitical dimensions of particularly Western interventions. Evans labelled Libya a ‘textbook case of the R2P norm working exactly as it was supposed to’ (cited according to Hehir, 2013: 137). There was enthusiasm all around the U.N. and the pro-R2P academic world that the R2P was now confirmed: Ban Ki-moon’s official reaction in September 2011 in a NATO-U.N. meeting, after the Libya intervention, was: ‘By now it should be clear to all that the Responsibility to Protect has arrived’ (cited according to Hehir, 2013: 137). Bellamy and Williams (2011) argue that the intervention signified that the Security Council was now motivated by a ‘new politics of protection’. They argue that Resolution 1973 is especially important because it ‘[…] marked the first time the Council had authorized the use of force for human protection purposes against the wishes of a functioning state’ (Bellamy/Williams 2011: 826). Ban Ki-moon solemnly declared in March

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2011, a few days before the military intervention started, that ‘the Security Council has taken a historic decision’ to intervene. Ban also declared that the decision was influenced to a significant extent by a collective desire to abide by the principles of R2P—by what the Secretary-General described as ‘the Security Council’s determination to fulfil its responsibilities to protect civilians from violence perpetrated upon them by their own government’. Ban furthermore stated ‘that the international community has undoubtedly entered a new era’ (cited according to Hehir, 2013: 139, 140, 144). Whereas the optimist voices highlighted R2P, Hehir was more reserved and sceptical about this supposed ‘historic decision’, ‘consent’, and ‘new politics of protection’ (Hehir, 2013: 138, 140, 144). According to Hehir, R2P had no influence on the Libya decision (Hehir, 2013: 146–151). R2P was not mentioned in Resolution 1973 (Hehir, 2013: 147/148). Rather, there was a ‘rare confluence of interest and humanitarian need’, and—given inconsistent international response to intrastate crises—a willingly accepted invitation for some P5 states to intervene (Hehir, 2013: 137/138, 140). Resolution 1973 is classified as U.N.’s Carte blanche for Western states to pursue political, strategic, and economic interests such as regime change, a new regional order and stability in North Africa in the context of the Arab Spring, and access to Libya’s oil resources first, and humanitarian aims second. This may be a well-known ‘critical’ argument against any NATO intervention. But this does not mean that it is not relevant and appropriate. According to Hehir, Libya shows that the power politics of the P5, in this case of France, the US, and Great-Britain, matter first and foremost as an ongoing principle in international politics. And that the R2P is still a political principle challenged by the mechanisms of power politics, but not a legal obligation (Hehir, 2013: 151–157). Why, one might ask, did the Libya intervention actually happen? According to Hehir, it was because strategic interests and humanitarian motives can go hand in hand, and did in the Libya case, causing a win–win situation and constellation in which states can pursue interests concealed in a humanitarian robe (Hehir, 2013: 152). And that R2P is only one factor of many factors driving and shaping states’ decisions to intervene in Libya or elsewhere, which explains the old and well-known patterns of selectivity of Western interventions (see also Pattison 2010: 153–180), even though under a new and fast-selling label (Hehir, 2013: 156, 159). For many political and academic observers, Libya also demonstrates the lack of interest of the West to include African states (e.g. the League of Arab States) as equal and emancipated partners in R2P debates and practices, and to establish regional security arrangements and early warning systems (Dembinski, 2017; Dembinski & Schott, 2014).

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2.3 R2P, Norm Contestation, and Norm Entrepreneurs and Antipreneurs The current debate on the R2P widens the scope and lens. It is no longer just about R2P’s substance and character. And it is no longer limited to the question whether the R2P is a tool of Western hegemony. The general debate in IR norms research is on the effects of norm contestation (Deitelhoff & Zimmermann, 2020; Lantis, 2018; Wiener, 2014), and on the role norm entrepreneurs and antipreneurs (Bloomfield, 2016; Bloomfield & Scott, 2017; Wunderlich, 2014, 2019, 2022) play in either resisting or bringing forward a norm. Against this background, and mainly driven by NATO’s Libya intervention, there is a specific debate on the R2P as a contested norm (Arcudi, 2016, 2019; Bloomfield, 2017; Hofmann, 2019). A new generation of critical IR norms researchers studying and theorizing the evolution, diffusion, and contestation of norms as both formal and informal rules of social behaviour (Krook & True, 2012; Stimmer, 2019) and as dynamic processes beyond a Western bias (Mende et al., 2022) agree that norm development is not in line with what a ‘first generation norms researchers’ (Bloomfield & Scott, 2017: 4–13) did model as linear norm life cycle evolution and progression in terms of norm spirals or norm cascades.7 These first-generation Western norms researchers, until today, share the theoretical core assumption, or normative belief, that norms such as—Western—human rights are fixed entities internalized by social actors embedded in normative structures. They assume that norms provide a ‘logic of appropriateness’ (March & Olsen, 1998: 951–952), and an orientation, or guide, for actors on how to behave in line with a specific norm’s scope and content. And they assume that norms define and constrain social rules and patterns of behaviour, and drive and shape international actors’ decision-making process and actions in line with a particular norm’s scope and objectives. The ‘second generation norms researcher’ (Bloomfield & Scott, 2017: 4–13) basically shares these liberal and constructivist-inspired core assumptions about embedded actors and socialization processes. Nevertheless, they are rather critical in a sense of putting biased models of linear norm evolution ‘[…] which were often underpinned by normative understandings that resonate with Western perspectives, practices and values’ (Mende et al., 2022: 341) into question. Instead, they rather focus on normative trajectories and norm dynamics at different—national, international, and transnational—levels of analysis and in different political contexts (Mende, 2018). And they focus on observable ambivalences between norms discourse and norms application, both leading to either norm confirmation and diffusion resulting in norm precedents (Acharya, 2013; Dembinski & Schott, 2014; Wiener, 2008) or in norm collision, fragmentation and erosion and regress.8 These researchers go beyond the teleological assumptions about Western liberal and democratic institutions, states, 7

See Finnemore and Sikkink (1998), Forschungsgruppe Menschenrechte (1998), Risse and Sikkink (1999), Risse et al. (1999). 8 See Heller et al. (2012), Kreuder-Sonnen and Zürn (2020), McKeown (2009), Panke and Petersohn (2011), Rosert and Schirmbeck (2007).

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and NGOs as liberal actors following a given norm, and about constant linear norm evolution established within the first generation norms research camp. Some of them discussed the ‘[…] rivalry between different normative orders, still framed as “the West vs. the rest”’ (Mende et al., 2022: 341; see Steinhilper 2015). And some of them integrate non-Western norms, actors and institutions (ibid.). The third generation of norms researchers take an open and multifaceted process of contextualized norm evolution, modification, and change in different policy fields beyond the security realm9 , and in different regions outside and beyond the Western world10 through domestic, international, and transnational processes of contestation (Deitelhoff & Zimmermann, 2020; Hofmann, 2019; Wiener, 2018) into consideration. Norms evolution is understood as a dynamic and open process, norms are conceptualized as ‘[…] constantly being contested and re-negotiated’, and ‘[…] norms are perceived as subject to reinterpretation in concrete historical and political contexts instead of simply being reproduced in a local area’ (Mende et al., 2022: 344). Here, states, institutions, and NGOs as norm entrepreneurs enter the picture. These entrepreneurs ‘[…] set out to alter the prevailing normative order according to certain ideas or norms that they deem more suitable’ (Wunderlich, 2013: 37, cited according to Bloomfield & Scott, 2017: 1). According to these researchers, norm evolution works including non-projectable developments during negotiations about a norm’s legitimacy and validity, and including different consequences (Arcudi, 2016: 78–80). The third-generation researchers’ core argument is that processes of norm contestation are leading to debates on a specific norm’s origins, defined and reproduced content, scope and adequateness, and a norm’s application and implementation in concrete cases (Arcudi, 2016: 79/80; Hofmann, 2019: 8), while the actors are not putting the norm as such into question, or declining the norm (Arcudi, 2016: 79/80; Bloomfield, 2017: 34). According to these researchers, there are different types of norm contestation: appropriateness, application, and scope. Arcudi argues that most debates about the R2P norm centre around Anwendung, Zielsetzung und Angemessenheit der Mittel, whereas only putting a norm’s fundamental Geltungs bereich (scope) into question means a challenge and weakening of the norm (Arcudi, 2016: 80, 86–87, 100–106). And norm evolution and contestation can cause unintended consequences. Hence, the result of norm contestation is not necessarily norm erosion and regress, or a norm’s dissolution. A result can also be intended norm resistance (Bloomfield, 2016; Bloomfield & Scott, 2017) in a sense of temporarily strategic and tactical resistance against a norm by some states behaving as norm antipreneurs (Bloomfield & Scott, 2017: 13–15), and triggering debates on a norm’s roots, content and scope (Bloomfield, 2017: 34). In the case of the R2P, some post-colonial countries in the Global South are behaving as revisionist norm antipreneurs. These states, sometimes rising powers which have experienced colonial rule, do so in the name of norms such as sovereignty 9

See Auethavornpipat (2022), Benedix (2022), Dunford (2017), Mende (2018), the contributions in Mende et al. (2022). 10 See Acharya (2011), Cooley and Schaaf (2017), Höra (2022), Mende (2021), Steinhilper (2015), van Hüllen (2015).

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and self-determination (see Hansel & Reichwein, 2023). They do not resist the R2P as such, or human rights protection (Arcudi, 2019). If not pursuing national or geostrategic interests, they rather resist a—in a Western major powers’ understanding—particular ‘normative’ change (Bloomfield, 2016), or a solely Western understanding of human rights, international order, and justice (Hofmann, 2019: 16– 18; see also Mende, 2021). Or these former colonies fear again Western intentions of regime change through interventions (Hofmann, 2019: 19). And they rather resist the (mis)use and application of the R2P by Western states, in particular of Pillar III who defines the military use of force of the international community against a state, as it was the case in NATO’s intervention in Libya (Bloomfield, 2017). Another result of norm contestation can be norm robustness by confirming a norm’s legitimacy, core and content, but adjusting its scope and implementation practices (Arcudi, 2016: 79/80; 2019; Deitelhoff & Zimmermann, 2020; Hofmann, 2019). According to Hofmann, norms are mostly doubted by affected actors, and always contested. In particular, the R2P offers space for different interpretations, and its contestation is a matter of historical experience and political contexts (Arcudi, 2016: 79/80; Hofmann, 2019: 18). At the same time, norms are enhancing (Hofmann, 2019: 16). Thus, there is a continuous process of norm emergence, diffusion, and discourse and negotiations about a norm’s content and scope and implementation, including disputes, re-interpretations, and new contextualized understandings of a norm. These steady social interactions among actors can adjust, modify, or change a norm’s core, scope, and aims. But at the same time (Hofmann, 2019: 14), these interactions can also strengthen a norm’s social legitimacy through actors’ permanent exchange including rapprochement and harmonization, re-interpretations, and shared insights that human beings need protection over time. The norm’s existence as a reference point of both conflict and agreement is consolidated. There is a kind of spill-over or ‘feedback’ effect (Hofmann, 2019: 15) of norm contestation as a social practice (Hofmann, 2019: 2–7, 13–20). And, in all possible outcomes, a result can be the emergence of new norm entrepreneurs outside the Western world from the Global South, including non-democratic and so-called ‘rogue’ states (Höra, 2022; Wunderlich, 2014, 2019, 2022). In other words, according to the new, third generation of norms researchers, there are different and diffuse processes of norm evolution through many different actors as ‘vectors of normative change’ (Mende et al., 2022) leading to—sometimes paradoxical and ambivalent—norm dynamics into different directions, including unintended consequences such as norm change (see also Krook & True, 2012; Sandholtz, 2008; Wunderlich, 2013). This new generation also theorizes norms beyond a Western bias from decentred postcolonial perspectives (Dunford, 2017; Epstein, 2017; Havercroft et al., 2020). These researchers suggest a decolonized and entangled perspective (Mende, 2021; Mende et al., 2022) in norms research that transcends the Western legacies of global norms by taking the complex constellations and interactions within and between norms from different world regions, actors, and levels including the Global South into account. These researchers are more sensitive to alternative understandings of social norms and legal frameworks in the peripheries contributing to the dynamic (re-)constitution of regional normative and legal structures, and they think less from

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a Eurocentric vantage point. They seek to move beyond the dichotomy of ‘good’ Western versus ‘bad’ non-Western norms, and the usage of terms such as ‘Western’ and ‘non-Western’, without simply reversing it. These researchers instead propose to integrate new dimensions into norms research such as (i.) revealing the ambivalences and ambiguities inherent to especially Western norms, (ii.) investigating plural actors as vectors of normative change including non-Western actors of the Global South, and (iii.) broadening the disciplinary theoretical realm of norms research. The aim of this third generation norms research is to further develop the empirical and conceptual discussion of norms that moves beyond a Western bias without simply giving up on normative assessments of norms (Mende et al., 2022: 343).11

3 Debating the R2P (Again): The Institutional, Normative, and Practical Level All authors contributing to this volume speak to these three debates outlined above from different analytical levels, theoretical perspectives, and with various empirical focal points. The chapters can be categorized into three levels of analysis: an institutional, normative, and practical one. As already laid out, the R2P is being heavily criticized for being misused by Western powers, or for being resisted for strategic or tactical reasons by states from the Global South (Bloomfield & Scott, 2017: 13–15), or for being misused and exploited by rising powers in the name of regional power politics. As we will see, some states are very innovative, and also cynical in interpreting ‘sovereignty’ and ‘responsibility’, and in the discursive use or in the unabashed reckless application of the R2P. Otherwise, institutional settings, normative discourses, and contestation practices make this norm even more robust. Reinterpreted, re-defined, and adjusted understandings of responsibility, and of politics of protection as consequences of norm institutionalization and contestation, in particular in order to protect the norm from misuse by reckless states, create new normative spaces, patterns of legitimacy, and norm entrepreneurs acting in line with normative settings and expectations. It is worth discussing R2P’s roots, institutional framework, and evolution. It is necessary to disclose its weaknesses and pitfalls. It is required to reveal R2P’s misuse. And it is time again to elaborate R2P’s strength and insistency as a norm. Accordingly, the contributions discuss ways in which the R2P is challenged or confirmed, or both at once. As the authors demonstrate, these challenges and confirmations not only relate to diplomatic communication and political practices within international institutions, but also to normative discourses like those among scholars of international political theory. The book includes chapters that reevaluate (and defend) the R2P from a normative standpoint, e.g. by questioning its relationship to political 11

For a summary of the different generations of norms researchers and norm literature, see also Bloomfield (2017: 32–34), Hofmann (2019: 9–16), Lantis (2018), Mende et al. (2022: 344–346), and Tskhay (2020: 15–38).

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liberalism, and by proposing cosmopolitan standards as a guide for states’ external behaviour and political implication (see Wyatt, 2019), or by discussing what the R2P is and ought to be, and what the R2P should and what it should not enable actors to do. Other contributors reassess the historical evidence from U.N. negotiations on the R2P principle, and the productive or restricting role of institutions and contestation processes in order to challenge the widespread assumption of a hegemonic Western project. Discussing new issues relating to the R2P such as the global balance of power and regional power shifts, or foreign policy as well as the phenomenon of authoritarian interventionism under the R2P umbrella, this book will appeal to all IR scholars and students interested in humanitarianism, norms, and power. By analysing the status quo of the R2P, it enriches and broadens the theoretical, normative, and political debate on what the R2P currently is, and what it ought to be.

4 Outline of the Book The volume is divided into three parts: theoretical inspired concepts such as institutionalization and contestation of the Responsibility to Protect, and the emergence of discursive normative spaces; areas of practical implementation; and promises and pitfalls of the R2P.

4.1 Institutions, Contestation, and Discourse Spaces According to Gregor Hofmann, the Responsibility to Protect remains contested among states. The disputes over the intervention in Libya and the non-action in Syria, Myanmar, and elsewhere have led some commentators to argue that R2P is in decline. Drawing on constructivist norm theory, this chapter argues that normative contestation of the R2P has always been constitutive for the norm set, and that contestation is influencing the way the R2P is implemented—as the implementation of the norm itself is contested. In order to show how contestation has shaped the norm set, this chapter traces R2P’s development and analyses how the U.N. Secretariat, the U.N. General Assembly, and the U.N. Security Council have discussed the implementation of the R2P and how transnational initiatives have been pursuing an implementation of the R2P, and an ongoing confirmation coming along with this. In Anne Peltner’s and Tanja Brühl’s chapter, the authors investigate if institutional settings do have an influence on norm emergence and norm implementation of the Responsibility to Protect. They argue that there is a connection between the institutional setting and the status of the norm. The discussion of R2P has taken place in different institutional settings over time. Due to three characteristics of those arenas—membership, procedures of decision making, and voting procedures—the respective arena contributes to challenge or confirm the norm of R2P. According

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to Brühl and Peltner, a broad membership, a high degree of formality in decisionmaking procedures and equal voting procedures strengthened the acceptance of the R2P norm. In contrast, a small forum, a high degree of informality, and conditions favouring unequal voting may have challenged the norm of R2P. Sassan Gholiagha’s chapter makes a twofold argument in favour of the R2P: First, R2P has opened a discursive space that enables debates (if not always actions) concerning protecting populations from mass atrocity crimes. Second, this discursive space is also helpful to grasp and analyse the development of R2P towards confirmation. The chapter puts forward the concept of a discursive space, which has three dimensions: norms, expectations of behaviour, and actors willing to act appropriately. Two key norms are discussed in more detail: the genocide prohibition norm and R2P. The chapter then analyses three situations where mass atrocity crimes either occurred or actors assumed they were about to occur: Rwanda in 1994, Kosovo in 1999, and Libya in 2011. In conducting the analysis, the chapter provides support for the twofold argument. Methodologically, Gholiagha relies on an interpretivist methodology and reconstructive approaches to text analysis. The author engages with primary sources from the U.N. and other relevant International Organizations, secondary literature, and expert interviews. According to Daniel Peters, the international system of human rights protection is fragmented into various context-sensitive concepts, which for the most part are implemented in isolation from each other. Building on the normative assumption that a linkage of distinct concepts might generate synergy effects on protecting human lives, Peter’s chapter demonstrates how to connect the Responsibility to Protect and the attribution of extraterritorial duties of protection from human rights violations in a globalized world economy via the strategy of structural conflict prevention. To this end, it maps the similarities of two legal policy debates about the protection of basic human rights by the exercise of graded responsibilities. Thereby, the chapter illustrates how both debates share the same idea of a responsibility to protect while their respective concepts of protection can be distinguished along various dimensions. Following the rejection of a ‘narrow but deep approach’ towards R2P, the possibility to link the two concepts of protection from mass atrocities and protection from abstract harm in a globalized world economy is outlined by the example of nonsustainable debt regimes and of human rights violations caused by transnational corporations.

4.2 The R2P in Practice Johanna Polle examines how the People’s Republic of China successfully influenced the development of the R2P norm from 2001 to 2005, based on its national understanding of state sovereignty. The chapter analyses speeches and statements by the Chinese delegation to the United Nations, and official Chinese foreign policy papers. According to Polle, China ‘localized’ and reconstructed the R2P concept drawing on local ideas and traditions and then advanced a respective understanding at the

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transnational level. China succeeded in distancing itself from the original draft of the ‘norm entrepreneurs’ and portrayed R2P as a Western attempt to interfere in the internal affairs of sovereign states. China weakened the substantial value of the norm but strengthened the referential value for countries in the Global South who expressed similar concerns about R2P. Ole Frahm retraces the intricate link between the responsibility to protect and South(ern) Sudan. First, a historical retrospective shows how humanitarian efforts in Southern Sudan created the consciousness that an international norm to prevent human rights abuses was vital. Subsequently, an analysis of the 2013–2018 civil war in South Sudan illustrates highly diverging interpretations of R2P’s implementation in practice. Four dimensions of how R2P’s preventive and punitive aspects find expression in discourses and actions are highlighted: judicial accountability, limits to national sovereignty, the United Nations’ changing self-conception, and sanctions regimes. Frahm’s findings show the mutual exclusivity of different measures, the U.N.’s shift to human security, the salience of civil society activism in setting the agenda, and South Sudanese actors’ active utilization of the R2P norm. Volkan S¸ ey¸sane and Çi˘gdem Çelik analyse the use of R2P in Turkish foreign policy towards the Syrian civil war from its beginning 2011 to early 2017. The chapter shows various meanings of the norm in use. Turkey has appeared as one of the key actors in the Syrian conflict. Moreover, Turkey’s approach to R2P is closely intertwined with its ambitious policy agenda in the civil war. Therefore, this chapter examines the question as to how the use of R2P has changed as Turkish foreign policy transformed over the course of the Syrian civil war. It also discusses the ways in which R2P has been challenged and confirmed by the discourse and practice of foreign policy towards Syria. In this context, the authors argue that the use of R2P in Turkish foreign policy during the Syrian civil war is a telling example of the misconduct of R2P by states to legitimize their interventionist policies across their borders.

4.3 Promises and Shortcomings According to Lothar Brock, the Responsibility to Protect resulted from the contestation of humanitarian intervention as a right claimed by the liberal West. This contestation combined resistance with an effort to come to grips with the issue of how to deal with mass atrocities without undermining international pluralism based on self-determination and non-intervention. Under its generally accepted reading by Secretary-General of the U.N., Ban Ki-moon, R2P offered the possibility to uphold the idea of international protection even under the global power shift which is presently gaining momentum. According to Brock, the future of protection politics will depend not only on how this power shift not necessarily threatens the norm that will unfold in the coming years, but also on the domestic change in the liberal democracies such as nationalism or debates on non-interventionism as it interacts with global change.

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Finally, Mischa Hansel and Alexander Reichwein reflect on unintended permissive effects that the R2P may have on authoritarian interventions and power politics. As a starting point, the authors question assumptions about a nexus between Western liberalism, democratic norm entrepreneurs, and humanitarian justifications in cases of interventions on both theoretical and historical grounds. According to Hansel and Reichwein, there is a true ambivalence of humanitarian norms as such, as they seem to support and legitimize both authoritarian and liberal ideas about how, when and why to intervene. Following this, Hansel and Reichwein theorize how the discursive use and application of the R2P can serve in particular authoritarian states’ power consolidation, security interests, identity formation, geopolitics, and securitization moves. Finally, this is illustrated by Russia’s, Saudi Arabia’s, and Turkey’s interventions abroad. This edited volume will appeal to all IR scholars and students interested in humanitarianism, norms, and power. By analysing the R2P’s state of the art, the chapters enrich and broaden the debate on what R2P currently is, and what it ought to be. The chapters are offered in ways to continue the debate, and to let a wider range of both sceptical and optimistic voices speak.

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Krook, M. L., & True, J. (2012). Rethinking the life cycles of international norms: The United Nation and the global promotion of gender equality. European Journal of International Relations, 18(1), 103–127. Lantis, J. W. (2018). Theories of international norm contestation: Structure and outcomes. In W. Thompson (Ed.), Oxford research encyclopedia of empirical international relations theory. Oxford University Press. Loges, B. (2013). Schutz als neue Norm in den internationalen Beziehungen: Der UN-Sicherheitsrat und die Etablierung der R2P. Springer/VS. March, J. G., & Olsen, J. P. (1998). The institutional dynamics of international political orders. International Organization, 52(4), 943–969. McKeown, R. (2009). Norm regress: US revisionism and the slow death of the torture norm. International Relations, 23(1), 5–25. Mende, J. (2018). Normative and contextual feminism: Lessons from the debate around female genital mutilation/cutting. Gender Forum. An Internet Journal for Gender Studies, 17(68), 47–69. Mende, J. (2021). Are human rights western—And why does it matter? A perspective from international political theory. Journal of International Political Theory, 17(1), 38–57. Mende, J., Heller, R., & Reichwein, A. (2022). Transcending a Western Bias: Towards a decolonised and entangled perspective in norms research. European Review of International Studies, 9(3) (Special Issue), 339-522. Mennecke, M., & Stensrud, E. E. (2021). The failure of the international community to apply R2P and atrocity prevention in Myanmar. Global Responsibility to Protect, 13(2–3), 111–130. O’Connell, M. E. (2008). The power and purpose of international law: Insights from the theory & practice of enforcement. Oxford University Press. O’Connell, M. E. (2010). Responsibility to peace: A critique of R2P. Journal of Intervention and Statebuilding, 4(1), 39–52. Panke, D., & Petersohn, U. (2011). Why international norms disappear sometimes. European Journal of International Relations, 18(4), 719–742. Pattison, J. (2010). Humanitarian intervention and the R2P: Who should intervene? Oxford University Press. Peters, D. (2020). Menschenrechtsschutz in der internationalen Gesellschaft: Extraterritoriale Staatenpflichten und Responsibility to Protect. Nomos Ramopoulos, T. (2015). International law and the application of the third pillar. In D. Fiott & J. Koops (Eds.), The responsibility to protect and the third pillar. Legitimacy and operationalization (pp. 4–20). Palgrave Macmillan. Reinhold, T. (2014). Sovereignty and the R2P: The power of norms and the norms of the powerful. Routledge. Risse, T., & Sikkink, K. (1999). The socialization of international human rights norms into domestic practices: Introduction. In T. Risse, S. C. Ropp, & K. Sikkink (Eds.), The power of human rights: International norms and domestic change (pp. 1–38). Cambridge University Press. Risse, T., Ropp, S. C., & Sikkink, K. (1999). The power of human rights: International norms and domestic change. Cambridge University Press. Rosert, E., & Schirmbeck, S. (2007). Zur Erosion internationaler Normen. Folterverbot und nukleares Tabu in der Diskussion. Zeitschrift für Internationale Beziehungen 14(2), 253–287. Sandholtz, W. (2008). Dynamics of international norm change: Rules against wartime plunder. European Journal of International Relations, 14(1), 101–131. Sava¸s-Cazala, M. (2022). Côte D’Ivoire: A timely and decisive R2P action? In P. G. Ercan (Ed.), The responsibility to protect twenty years on rhetoric and implementation (pp. 107–131). Palgrave Macmillan. Schmeer, E. (2010). Responsibility to protect und Wandel von Souveränität. Untersucht am Fallbeispiel des Krieges in Darfur. Berliner Wissenschaftsverlag. Stahn, C. (2007). Responsibility to protect: Political rhetoric or emerging legal norm? American Journal of International Law, 101(1), 99–120.

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Steinhilper, E. (2015). From “the Rest” to “the West”? Rights of indigenous peoples and the western bias in norm diffusion research. International Studies Review, 17(4), 536–555. Stimmer, A. (2019). Beyond internalization: Alternate endings of the norm life cycle. International Studies Quarterly, 63(2), 270–280. Thakur, R. (2006). The United Nations, peace and security. From collective security to the responsibility to protect. Cambridge University Press. Thakur, R. (2016). The responsibility to protect at 15. International Affairs, 92(2), 415–434. Tskhay, A. (2020). Global norm compliance: The study of the implementation of the extractive industries transparency initiative. Springer. Van Hüllen, V. (2015). Just leave us alone: The Arab league and human rights. In T. Börzel & V. van Hüllen (Eds.), Governance transfer by regional organizations: Patching together a global script (pp. 135–153). Palgrave Macmillan. Verlage, C. (2009). Responsibility to protect. Ein neuer Ansatz im Völkerrecht zur Ver-hinderung von Völkermord, Kriegsverbrechen und Verbrechen gegen die Menschlichkeit. Mohr Siebeck. Wan Rosli, H. H. (2022). The forsaken war in Yemen: R2P as mere rhetoric? In P. G. Ercan (Ed.), The responsibility to protect twenty years on rhetoric and implementation (pp. 171–195). Palgrave Macmillan. Weiss, T. G. (2006). R2P after 9/11 and the World Summit. Wisconsin International Law Journal, 24(3), 741–760. Wheeler, N. J. (2000). Humanitarian intervention in international society. In Saving strangers. Humanitarian intervention in international society, (pp. 21–54). Oxford University Press. Wheeler, N., & Owen, R., et al. (2007). Liberal interventionism versus international law: Blair’s wars against Kosovo and Iraq. In B. MacDonald (Ed.), The ethics of foreign policy (pp. 83–98). Ashgate. Wiener, A. (2008). The invisible constitution of politics. Contested norms and international encounters. Cambridge University Press. Wiener, A. (2014). A theory of contestation. Springer. Wiener, A. (2018). Contestation and constitution of norms in global international relations. Cambridge University Press. Wunderlich, C. (2013). Theoretical approaches in norm dynamics. In H. Müller & C. Wunderlich (Eds.), Norm dynamics in multilateral arms control interests, conflicts and justice (pp. 20–47). University of Georgia Press. Wunderlich, C. (2014). A “Rogue” gone norm entrepreneurial? Iran within the nuclear nonproliferation regime. In W. Wagner, W. Wouter, & M. Onderco (Eds.), Deviance in international relations: “Rogue States” and international security (pp. 83–104). Palgrave Macmillan. Wunderlich, C. (2019). Rogue states as norm entrepreneurs. Black sheep or sheep in wolves’ clothing? Springer. Wunderlich, C. (2022). Blinded by delight? A plea for de-moralising the scholarship on norm entrepreneurs. European Review of International Studies, 9(3) (Special Issue Transcending a Western Bias: Towards a decolonised and entangled perspective in norms research, eds. J. Mende, R. Heller & A. Reichwein), 363–388. Wyatt, S. (2019). The responsibility to protect and a cosmopolitan approach to human protection. Palgrave.

Mischa Hansel (Dr.) joined the Institute for Peace Research and Security Policy at the University of Hamburg (IFSH) as head of the newly established “International Cybersecurity” (ICS) research focus in February 2021. Previously, he spent several years outside academia, as a program and media officer at the Development and Peace Foundation (sef:) and at the German Aerospace Center (DLR). Between 2013 and 2018, he worked as postdoctoral researcher and lecturer in International Relations at RWTH Aachen University and the University of Giessen respectively. Mischa Hansel studied political science, history, and German language and literature at the University of Cologne, where he completed his Ph.D. with a thesis on conflict and cooperation in

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the field of international cybersecurity. He also worked as a visiting fellow at George Washington University, the European Space Policy Institute in Vienna, the Vrije Universiteit Amsterdam, and Leiden University. His research interests include cybersecurity, foreign policy analysis, Asian security affairs and Indian foreign policy. Previous articles have been published in journals such as Foreign Policy Analysis, Contemporary Security Policy, the International Journal, the Journal of Cyber Policy, Asian Politics and Policy and the Journal of International Relations and Development. He has co-edited a Routledge volume on Theorizing Indian Foreign Policy (2017) and was principal investigator in a German Research Council-founded project on the influence of belief systems and leaderships traits on German foreign policy making. Alexander Reichwein (Dr.) is Lecturer in International Relations at the Justus-Liebig-University Giessen, and a Co-Speaker of the Research Section Norms and Changes in Global Politics at the Giessen Graduate Centre for Social Sciences, Business, Economics and Law (GGS). In the past, he held visiting researcher and guest lecturer positions at the University of Copenhagen (2016–2018) and University of Erfurt (2016–2017). Alex is doing research on Humanitarian Interventions and the misuse of the Responsibility to Protect, on the History of the Discipline (I)nternational (R)elations, and on the realist tradition in IR. He is co-editor of the book series Trends in European IR Theory (Palgrave Macmillan). His most recent publications include “Transcending a Western Bias: Towards a Decolonised and Entangled Perspective in Norms Research”, in: European Review of International Studies 9: 3 2022 (Special Issue, guest editor and author with J. Mende & R. Heller), Hans J. Morgenthau und die Twenty Years’ Crisis. Das realistische Denken eines Emigranten im Lichte seines deutschen Erfahrungshintergrundes (Springer VS, 2021), Realism—A Distinctively 20th Century European Tradition (Palgrave Macmillan, 2020, coedited with F. Rösch), and Die Internationale Schutzverantwortung: Etabliert. Herausgefordert. Gescheitert? (LIT, 2020, co-edited with M. Hansel). Alex holds a Ph.D. in Political Science from the Goethe-University Frankfurt with a thesis on Hans J. Morgenthau and his normative and liberal German Realism.

R2P—Institutions, Contestation, Discourse Spaces

The International Implementation of R2P: Norm Contestation and Its Consequences Gregor P. Hofmann

Abstract The Responsibility to Protect (R2P) remains contested among states. The disputes over the intervention in Libya and the non-action in Syria, Myanmar and elsewhere have led some commentators to argue that R2P was in decline. Drawing on constructivist norm theory, this chapter argues that normative contestation of the R2P has always been constitutive for the norm set and is influencing the way it is implemented—as the implementation of the norm itself is contested. In order to show how contestation has shaped the norm set, this chapter traces R2P’s development and analyses how the UN Secretariat, the UN General Assembly, and the UN Security Council have discussed the implementation of the R2P and how transnational initiatives have been pursuing an implementation of the R2P.

1 Introduction The Responsibility to Protect (R2P) includes at least three expectations of appropriate behaviour within the international community (cf. Finnemore & Sikkink, 1998: 891).1 It can hence be described as a set of norms (Hofmann, 2015: 276) or as a “complex norm with layers of prescriptions” (Welsh, 2013: 386): UN member states agreed that (a) sovereignty includes a responsibility to protect the population 1 This chapter was written as part of a research project at the Peace Research Institute Frankfurt (PRIF) on conditions for successful governance in the conflict between humanitarianism and sovereignty, funded by the German Research Association (DFG). Texts drawing on the data from the research project this chapter is built on have, inter alia, been published with Springer VS (Hofmann, 2019), LIT (Hofmann 2020) as well as Brill (Hofmann & Wisotzki, 2014; Hofmann, 2015; Hofmann & Suthanthiraraj, 2019). Earlier versions of this chapter have been presented at the EWIS Workshop 2016 in Tübingen as well as at the ISA annual conference 2021. I thank my colleagues, the editors, all commenters as well as the anonymous reviewer for this publication for their valuable thoughts.

G. P. Hofmann (B) WZB Berlin Social Science Centre, Berlin, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2023 A. Reichwein and M. Hansel (eds.), Rethinking the Responsibility to Protect, Contributions to International Relations, https://doi.org/10.1007/978-3-031-27412-1_2

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on one’s territory from atrocity crimes, that (b) the international community has to support individual states in fulfilling their responsibility, and that (c) if a state manifestly fails in its protection responsibilities, the international community represented by the UN Security Council has a subsidiary responsibility to protect populations under threat (Ban Ki-Moon, 2009). Even though R2P was adopted unanimously as part of the World Summit Outcome Document in 2005, many non-Western states subsume its third pillar under a Western liberal-internationalist agenda that aims to spread democracy and promote human rights around the world without abstaining from using means of coercion (Chomsky, 2011; Dunne, 2015; Newman, 2015). In recent years, the disputes over the intervention in Libya in 2011 and the nonaction of the UN Security Council in Syria and Myanmar have led some scholars and commentators to argue that R2P is in decline, or even dead, because states seem to be reluctant or even unwilling to intervene in cases of ongoing mass atrocities, like in Syria (e.g. Chandler, 2015; Rieff, 2011); or that R2P was “a toothless slogan routinely affirmed and invoked, while the glaring contrast between its proliferation and efficacy widens” (Hehir, 2019: 222), since the crucial aspect of the norm, i.e. protection of populations under threat, has been diluted by states. For R2P to be recognized as a norm, states should show a shared acceptance of the underlying standards of appropriate behaviour and practice of collective action to prevent mass atrocities; however, resistance against the third pillar of R2P showed that the norm’s development stood still (Newman, 2016: 34, 46). At best, R2P was a weak, emerging norm whose development has stalled and which is threatened by degeneration as a result of the dispute over the Libya intervention (Tacheva & Brown, 2015: 453–455). Other authors, in contrast, are optimistic and, especially shortly after the 2005 World Summit, some authors were even euphoric. Gareth Evans for example identified a watershed moment: “consensus seemed to have been reached on how to resolve one of the most difficult and divisive international relations issues of our, or any other, time” (Evans, 2008: 284). Some even saw R2P on the way to become an “emerging global constitutional norm” (Peters, 2009: 189). Despite the critique targeting R2P, some saw in the debates over Libya and Syria processes of deliberation which “have deepened and expanded the normative internalization of the responsibility to protect” (Powers, 2015: 1274). And despite the diplomatic disputes related to R2P, some argue that a “genuine and resilient international consensus” exited with respect to R2P (Bellamy, 2014: 1). And while R2P did not change everything, is being challenged, and has not yet fully matured, “the toughest normative battles have been fought and won” (Bellamy & Luck, 2018: 182). Even though different in their assessment of R2P’s normativity and relevance, many of these studies share basic ontological assumptions about the nature of norms and their development: They acknowledge that R2P’s operationalization and implementation were controversial, but at the same time, they implicitly assume that R2P as a norm was clearly defined and its meaning fixed while it is spreading in a process of linear diffusion within the society of states (Hofmann & Zimmermann, 2019: 140). Hence, these works do not adequately tie in with the more recent literature on the contestation of international norms, which emphasizes that norms are always contested and can change continuously in disputes over their significance, meaning, and political implications.

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This chapter rather follows those authors, who emphasize the contested nature of R2P (e.g. Arcudi, 2016; Deitelhoff, 2019; Garwood-Gowers, 2015; Welsh, 2013, 2019). Such a perspective puts norm contestation at the very centre of the analysis. This chapter treats R2P as a genuinely contested norm and argues that normative contestation is not necessarily an indicator of R2P’s decay, but has rather been constitutive for the norm set and is continuously influencing the way it is implemented. Tracing the development of R2P since the World Summit in 2005, this chapter analyses the debates of the General Assembly on the Responsibility to Protect, the reports of the Secretary-General on R2P’s implementation, the way the Security Council has applied R2P to situations of conflict and, last but not least, transnational initiatives that aim to implement R2P. Drawing on content analysis of debates in the General Assembly on R2P as well as on other primary sources and interviews with diplomats, this chapter aims to show, how contestation and implementation of R2P have shaped the norm set and how R2P has changed over time instead of offering a definitive and final assessment of R2P’s status as a norm.

2 Norm Contestation and the Dynamic Development of International Norms Constructivist research on the contestation of international norms concentrates on the ambiguity of international norms by treating them as discursive phenomena that are interpreted differently by different actors (Wiener & Pütter, 2009: 4). Contestation can weaken a norm, if states question the validity of the norm and if noncompliance is criticized by other actors (Panke & Petersohn, 2012; Rosert & Schirmbeck, 2007). However, contestation can also result in the strengthening of a norm: disputes over a norm’s implementation may specify the scope conditions of the norm’s application and the instruments perceived as appropriate to fulfil the norm’s ends (Badescu & Weiss, 2010; Deitelhoff & Zimmermann, 2020: 58). Even disputes about a norm’s validity can foster the norm’s legitimacy, if actors find a shared interpretation of the meaning of the norm (Wiener, 2014: 10). At the end of the day, it is these processes of contestation that make a norm an intersubjectively shared standard of appropriate behaviour (Sandholtz, 2008). Norm contestation does not necessarily result in the weakening of a norm. The contestation of the application of a norm may contribute to the development of a shared understanding of the scope conditions of a norm’s application and the kind of behaviour the community expects from its members (Deitelhoff & Zimmermann, 2020: 53) However, “[i]f the core of a norm is increasingly questioned, noncompliance is likely to spread and go unquestioned, leading—over time—to a weakening of norm robustness” (Deitelhoff & Zimmermann, 2020: 53). Central to processes of contestation are argumentative disputes (Sandholtz, 2008: 10–13) in which actors refer to intersubjectively shared understandings that constitute international society to justify their positions (Crawford, 2005: 85). Norms like

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R2P rest at the intersection of international law and morality and touch on questions of order and justice, which have always been contested concepts. As international politics involves a struggle over the underlying normative order, states often frame their claims as normative and ethical challenges, by referring to principles such as sovereignty, self-determination, justice, human dignity, or international (humanitarian) law (Hofmann & Wisotzki, 2014: 489–491; Thakur, 2016a: 371). The sovereignty principle and its corollary, the principle of non-intervention, are the prevailing ordering principles at the international level (Brunnee & Toope, 2006: 127). For many states in the global South, these statist rights are of special importance, because they guarantee their autonomy and independence in contrast to the days of colonialism (Ayoob, 2002; Thakur, 2011). However, the protection of individuals from unnecessary harm has gained growing importance over the last decades and human rights have become an important concern for the international community (Reus-Smit, 2011). From an English School perspective, the former can be subsumed under a “pluralist conception of world order”, while the latter indicates a “solidarist” one (Buzan, 2004: 46–48). These different perspectives on international order and justice come to play when states negotiate new international norms and discuss their validity (Hofmann & Wisotzki, 2014). Different conceptions of the global normative order are, hence, constitutive for international norms, as an analysis of R2P’s emergence at the 2005 World Summit will show. A norm’s development does not stop when it emerges as part of an international document. There is no linear process from a norm’s emergence, to its diffusion and eventual internalization by the actors addressed by it, “rather, these trajectories are fraught with contestation and reversals as state and non-state actors compete to identify, define and implement these norms” (Krook & True, 2012: 106). However, theoretical models of norm diffusion “tend to be insufficiently dynamic and fluid” with regards to the interrelations of normative development and a norm’s implementation, they “overvalue persuasion and undervalue listening” (Luck, 2012: 87–88). As a consequence, the path from states’ commitment to a norm to their compliance with norm’s prescriptions has often been analysed as an almost linear process (Risse & Ropp, 2013: 11–12). But one must not underestimate the normative impact that processes of implementation and the different actors involved have on the norm itself (Betts & Orchard, 2014: 2–3). International treaties, declarations, and resolutions that create new international norms are often rather vaguely formulated, creating space for many different possible interpretations of a norm’s meaning (Betts & Orchard, 2014: 11; Chayes & Chayes, 1995: 10–13). As a consequence, actors attempting to implement the norm have to deliberate with each other and agree on a shared understanding of a norm’s implications (Betts & Orchard, 2014: 3). This is often a very contested process because actors refer to their respective background knowledge and “normative baggage” to interpret the norm’s meaning (Wiener & Pütter, 2009: 5–6). As practice-theoretical works on international norms show “different understandings of norms are likely to manifest themselves and emerge in differing implementation practices” and these “are thus key to understanding normative meaning(s)” (Bode & Karlsrud, 2019: 460).

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In processes of implementation, a broad variety of stakeholders is involved: The initial norm entrepreneurs, international organizations and civil society organizations, as well as the states to be socialized with the norm, which are often sceptical of the norm itself. Due to a preoccupation with the “good international citizens” (Wheeler & Dunne, 1998) as norm entrepreneurs, i.e. individuals or transnational networks of non-governmental actors or states aiming to change an existing normative order by promoting new norms (Finnemore & Sikkink, 1998: 896–897; Price, 1998: 621), norm research has for long been overlooking the agency of the so-called socializees—most of the times states in the global South (Epstein, 2012). But as localization research shows, local actors within these states may adapt an international norm in order to fit it into pre-existing normative frameworks, what may influence the “original” international norm (Acharya, 2004, 2013). Regional or local actors may also react negatively to attempts to socialize them with a new international norm. This may strive to create alternative regional norms, to protect their autonomy from international interference (Acharya, 2011). So called “norm antipreneurs” (Bloomfield, 2016) or rival networks (Bob, 2012), who defend the existing normative status quo, may try to block the further diffusion of the norm. Last but not least, alternative or “revolutionary norm entrepreneurs” may try to establish alternative normative concepts that are not necessarily derived from liberal-democratic ideas (Wunderlich, 2013: 34). This norm contestation may in return also lead to a change in the implementation strategies of international actors and thereby influence the dominant interpretation of the norm (Zimmermann, 2012: 73). Such attempts to defend the status quo, to adapt the norm and to dispute its interpretation had a significant impact on R2P and its implementation, as will be discussed below in the analysis of R2P’s further development after its emergence.

3 R2P at the World Summit: Between Normative Contestation and Great Power Politics The negotiations on including R2P in the World Summit Outcome document (WSOD) in 2005 were peculiarly complicated (Bellamy, 2009; Hofmann, 2015; Pollentine, 2012). Disputes over sovereignty and over decision-making procedures on the use of force were at the centre of the debate. Canada and several European and African states were pushing for the adoption of R2P. They stressed that infringements of international humanitarian law had to be punished and that sovereignty was no carte blanche for a government to kill its people (Hofmann, 2015: 288). In contrast, many non-Western states demanded equal sovereignty for all states and, like the Non-Aligned Movement, “reiterated the rejection by the Movement of the so-called ‘right’ of humanitarian intervention, which has no basis either in the Charter or in international law” (Malaysia [NAM], 2005). Sceptics of R2P represented a variety of regime types and included democracies like India, but also autocratic regimes like Iran, Pakistan, or Egypt, which were united in their concern that “the theory

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of the “responsibility to protect” […] could become a threat to the principle of the national sovereignty of States and could usher in a new era of intervention in the internal affairs of countries” (Egypt, 2005). Other important points of contestation were demands for equal treatment of states based on international law. States like India, Pakistan, Cuba, and Iran pointed to power asymmetries, double standards, and selectivity of the Security Council and criticized a lack of equality among states: “human rights should be a sword of the poor, not a sword of empire” (India, 2005). They feared that “big and powerful States, not small and weaker ones, will decide where and when to intervene to protect people at risk” (Pakistan, 2005) and “that, through that idea, some parts of the world may become potential theatres for their intervention” (Iran, 2005). Despite these strong divisions among member states, R2P became a part of the WSOD. R2P supporters successfully framed the norm as an ally of sovereignty. South Africa, Rwanda, and Tanzania, for example, emphasized that R2P is not meant to undermine the sovereignty of weaker states but to strengthen their capacities to provide protection to their populations. This was decisive in persuading the still sceptical African Group to embrace R2P (Bellamy, 2009: 88–89). At the same time, the supporters of R2P took the sceptics concerns seriously. South Africa for example emphasized that “the obligation of States to protect their citizens should not be used as a pretext to undermine the sovereignty, independence and territorial integrity of States” (South Africa, 2005). Canada emphasized that R2P was meant to foster preventive efforts, that “the concept of sovereignty is strengthened, not weakened, since the basis for intervention by the international community is narrowly limited to a failure to uphold the very obligations inherent in sovereignty itself”, and that the Security Council was expected to apply R2P consistently, “it must apply to both large and small states equally, it must apply to north and south equally” (Canada, 2005). Attempts by the US and the UK to hold the door open for intervention without UN approval by pushing language that asked for a Security Council mandate “whenever possible” was not successful during the negotiations (USA, 2005) (Pollentine, 2012: 324). Even though R2P was part of a bigger negotiation package on UN reform in 2005, which facilitated the agreement on R2P significantly (Pollentine, 2012: 220–221), the inclusion of R2P into the WSOD was also dependent on the consideration of the underlying normative dispute and the concerns of the sceptics of R2P: R2P could have been deleted from the draft WSOD, as it had happened to the section disarmament and non-proliferation, which disappeared from the draft during the last ten days before the summit (President of the 59th General Assembly, 2005d: §68–72; UN General Assembly, 2005). R2P supporters repeated R2P’s trigger conditions—genocide, ethnic cleansing, war crimes, and crimes against humanity—in every sentence within the R2P paragraphs in order to mitigate concerns (Ping, 2009; UN General Assembly, 2005: §138–139).2 A close look at the draft WSODs of June (President of the 59th General Assembly, 2005a), July (President of the 59th General 2

Author’s private interview with a Western diplomat who has participated in the 2005 negotiations, Skype, 15 June 2011.

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Assembly, 2005b), August (President of the 59th General Assembly, 2005c), and September 2005 (President of the 59th General Assembly, 2005d, 2005e) reveals that the language on R2P was adjusted to respond to the reservations articulated by the sceptics: The dispute between those states championing R2P as a progressive international norm of protection, those states fearing a potential misuse of R2P for great power politics, and last but not the least, the permanent five emphasizing that the Security Council had to be in the centre of any international security policy, had a huge impact on R2P’s constitution. In order to prevent unilateral abuse of R2P, an international reaction to atrocities was bound to the decision of the Security Council and the scope conditions of R2P were kept very narrow (Luck, 2016: 294). The R2P paragraphs are a commitment to civilian protection, as demanded by the proponents of R2P, but are at the same time reaffirming the centrality of sovereignty within the international order and the prerogative of the Security Council regarding decisions on the use of force. Hence R2P can be understood as a means that actually limits external interventions, by narrowing down the situations that may require interference with the worst crimes. The agreed R2P in the WSOD might be considered as a mixture between liberalcosmopolitan and statist conceptions of world order, or as C. S. R. Murthy and Gerrit Kurtz name it with reference to Andrew Hurrell (2007: 63–65), as “consensual solidarism associated with a traditional understanding of international law created by equal sovereigns” (Murthy & Kurtz, 2015: 40). Other authors share this assessment and conclude that in R2P’s construction “we see how the tension between solidarist values and pluralist institutions is being played out” (Dunne, 2015: 100). While R2P aims at a re-conceptualization of sovereignty as responsibility, it is still embedded in the institutions of a state-based international society, which rests on the sovereign equality of its member states (Dunne, 2015; Newman, 2015). However, the World Summit Outcome Document remains vague on when and how to intervene to stop atrocities. States only agreed that they “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 are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity” (UNGA, 2005: §139). This leaves the door open for multiple possible interpretations of what R2P actually implies in situations of crisis.

4 R2P’s Contested Implementation Within the UN As the WSOD is a resolution of the general Assembly, R2P is not a legally binding norm, but a political declaration of intent. Member states are not obliged to implement the norm beyond obligations that result from underlying customary and treaty law, like the Genocide Convention, the Geneva Conventions, the Human Rights conventions, and the Rome Statute of the International Criminal Court. Given the

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high level of contestation of the idea of R2P during the World Summit, the SecretaryGeneral and other actors emphasized consent, domestic jurisdiction, and multilateral cooperation in their proposals on R2P implementation (Welsh, 2013: 394). However, the ink of the World Summit Outcome document had barely dried, when it became apparent that the normative conflicts underlying the debate were not solved at all: When the UK introduced a draft resolution in the UN Security Council (UNSC) endorsing R2P in December 2005, Algeria, China, and Russia opposed the term “collective responsibility”. Together with Brazil and the Philippines, they argued that the World Summit outcome asked the General Assembly to continue the discussion on the topic before the UNSC can turn to its implementation (UN Security Council, 2005a, 2005b). The Security Council negotiated for five months before it adopted Resolution 1674 in April 2006, which endorsed the R2P paragraphs from the WSOD (Lederer, 2006). In a similar vein, Cuba, Egypt, Morocco, Nicaragua, Pakistan, Sudan, and Venezuela used the GA fifth committee’s budgetary discussions to oppose the creation of a Special Advisor to the Secretary-General on the Responsibility to Protect who was supposed to work with the Office of the Special Advisor to the Secretary-General on Genocide Prevention. They demanded further conceptual discussions on the Responsibility to Protect within the UN General Assembly (UNGA) before any implementation could start (United Nations, 2008). Eventually, the fifth committee approved the funding requested to form a joint office of the two Special Advisors in 2010 (United Nations, 2010). Besides the validity of R2P, also its scope and application were contested in the years following the World Summit: China used its influence to delay a robust peace keeping operation in Darfur (Contessi, 2010). France attempted to expand the scope of R2P’s application to natural disasters to compel humanitarian access in Myanmar in 2008 (Junk, 2015). Russia tried to justify its intervention in Georgia in 2008 with an intention to “fulfill the responsibility to protect” (MFA Russland, 2008) by preventing genocide against South Ossetian secessionists of Russian origin. However, as the French and Russian attempts to re-interpret R2P found no support from other states, these disputes over the applicability of the norm set reaffirmed the limited scope of application for R2P to grave instances of the four crimes named in the WSOD: genocide, crimes against humanity, war crimes, and ethnic cleansing (Badescu & Weiss, 2010). Nevertheless, states supporting R2P’s implementation concluded in 2008 that “skeptics have proved more organized than supporters of R2P”, that prevention and early action should be emphasized in order to defend R2P against critics, and that “supporters should stand by the full aspect of the norm and not allow governments or the UN Security Council to evade its responsibilities stipulated by the 2005 agreement” (GCR2P, 2008). However, international efforts to mediate during the post-election crisis in Kenya in 2008 provided R2P advocates with a first example, of how diplomatic means under the R2P umbrella could be applied to prevent the escalation of atrocities without using force (Annan, 2009). This became an important reference in efforts to implement R2P in the following years. Despite enduring differences regarding R2P’s status, meaning, and scope—even within the UN, the different agencies were for the first couple of years following

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the World Summit unable to agree on a shared understanding of R2P (Hofmann & Suthanthiraraj, 2019: 236–237; Strauss, 2015: 63)—most states supported the ideas of the Special Advisor on R2P Edward Luck and Ban Ki-Moon on the implementation of R2P during the first official GA debate on R2P in 2009. The report of the SecretaryGeneral on R2P conceptualized R2P as consisting of three pillars: responsibility of the state, international responsibility to support states, and international responsibility to react if a state does not protect its population (Ban Ki-Moon, 2009). In reaction to sovereignty claims, it emphasized that “the responsibility to protect is an ally of sovereignty, not an adversary” (Ban Ki-Moon, 2009: §10). And related to procedural claims uttered in 2005 and the subsequent years, it demanded that the “decisionmaking process should be broad-based, inclusive and flexible” when it comes to decision on how to prevent atrocities or how to react to them (Ban Ki-Moon, 2009: §5). Hence, the first official proposal on R2P’s implementation already took up critique brought forward against the norm. However, drafting a resolution that endorsed R2P proved to be difficult in 2009. The then-president of the General Assembly, Miguel D’Escoto from Nicaragua, criticized R2P as a colonial concept and argued that collective security was “not an enforcement mechanism for international human rights law and international humanitarian law” (President of the 63rd General Assembly, 2009). Bolivia, Ecuador, Cuba, Nicaragua, North Korea, Malaysia, Sudan, and Venezuela joined this critique. Furthermore, states that were rather sceptical but not opposed in principle to R2P3 criticized double standards in the assessment of mass atrocities by the Security Council. Many non-Western R2P supporters and some European sates shared these concerns.4 Some states cautioned that the use of force as a means of early and decisive action could become a backdoor for illegal interference in internal affairs.5 However, the overall majority of states supported the Secretary-Generals operationalization of R2P. Nevertheless, the initial debate was closed by D’Escoto without a resolution on the table (Serrano, 2011: 435). Eventually, it was up to a group of states led by Guatemala to draft Resolution 63/308 that endorsed the SG’s report on R2P and committed the GA to discuss R2P further (Hofmann, 2015: 294).

3

Such claims can be found in statements delivered in 2009 by Algeria, China, Colombia, Ecuador, Gambia, India, Jordan, Morocco, Myanmar, Pakistan, Palestine, Philippines, Qatar, Russia, Serbia, Solomon Islands, Sri Lanka, Turkey, Vietnam, CARICOM, and the Non-Aligned Movement. 4 Andorra, Armenia, Bangladesh, Benin, Bosnia Herzegovina, Chile, Costa Rica, Georgia, Guatemala, Guinea Bissau, Iceland, Ireland, Kenya, Mexico, New Zealand, Norway, Panama, Peru, San Marino, Singapore, South Africa, Swaziland, Switzerland, Timor-Leste, and the Vatican. 5 Bangladesh, Bolivia, Brazil, China, Cuba, Gambia, India, Iran, Nicaragua, North Korea, Pakistan, Serbia, Sri Lanka, Sudan, and Turkey.

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5 R2P’s Contested Application by the Security Council R2P and its implementation remained contested among states in the subsequent years (Hofmann, 2015: 292–298). Even though normative concerns were temporarily mitigated during the World Summit negotiations by emphasizing states’ sovereignty and the existing rules of the collective security system, they resurfaced after the first application of R2P’s non-consensual aspects in 2011. NATO’s overstretch of Resolution 1973s (2011) mandate to use force against the Libyan government to protect civilians resulted in an intense dispute over the intervention (see Dembinski & Reinold, 2011; Garwood-Gowers, 2013). In May 2011, the so-called BRICS (Brazil, China, India, Russia, and South Africa) criticized NATO’s interpretation of Resolution 1973 (UN Security Council, 2011a) and pointed to a lack of oversights of NATO’s actions. The Indian representative commented: “Quis custodiet ipsos custodies? Who watches the guardians?” (UN Security Council, 2011a). The African Union identified “attempts to marginalize Africa […] in managing and resolving the crises affecting the Continent” (African Union, 2011). As a consequence, Russia and China pointed to serious differences over R2P within the international community during the 2012 informal dialogue of the GA on R2P (China, 2012; Russia, 2012). Together with India and other states from the Global South, they demanded a very narrow definition of R2P’s Pillar III. A frequently raised point of concern among R2P sceptics was that R2P had to be applied impartially to all conflict parties (see also Quinton-Brown, 2013: 267). India summed it up: R2P “cannot be seen as codifying a system of coercion, providing a tool in the hand of powerful governments to judge weaker states, and encourage regime change primarily on political considerations” (India, 2012). During the informal interactive dialogues of the GA in the following years, such claims were an enduring theme and sovereignty concerns also became more central again. The discomfort with R2P’s application led Brazil to introduce a proposal on a “Responsibility while Protecting” (RwP) (Brazil, 2011): Brazil demanded accountability mechanisms for Chapter VII mandates as well as a strict chronological and political sequencing of R2P’s three pillars. France (2012), the UK (2012), and the US (2012) rejected the critique at their actions in Libya and dismissed the RwPproposal: As a slippery slope towards a delay of decisions, RwP would undermine the protection of threatened populations. Moreover, they perceived it as overemphasizing sovereignty to the detriment of human rights. As a Western diplomat said in an interview with the author: If we impose a list of criteria […] it would be a way to institutionalize inaction, because countries could always say that not the whole list is fulfilled. That is what would happen, especially if we would introduce the sequencing and the criteria of RwP. […] Of course the observation of IHL is very important, as is respect for the UN Charta. But we think that mentioning sovereignty without mentioning Human Rights would be picking and choosing from the UN Charta. You have to respect it as a whole.6

Especially rising powers like China, Malaysia, Russia, and South Africa welcomed Brazil’s proposal during the interactive dialogue on R2P in 2012. India claimed “[i]f 6

Author’s private interview with a diplomat from a European state, New York, 7 October 2014.

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R2P is to regain the respect of the international community, it has to be anchored in the concept of RwP” (India, 2012). In March 2012, Chinese scholars close to the communist party called for “responsible protection”, i.e. guidelines on R2P’s application and for a closer supervision of Security Council mandates (GarwoodGowers, 2016). Besides Libya, the civil war in Syria led to an ongoing controversy on how to react to massive atrocities within the Syrian civil war. An initial draft resolution on Syria in October 2011 was blocked by the vetoes of Russia and China. Brazil, India, Lebanon, and South Africa abstained. In the threat of sanctions and further steps, they identified a scenario reminiscent of Libya (UN Security Council, 2011b). Since then, China and Russia had double-vetoed resolutions on Syria in February and July 2012, in May 2014, in December 2016, as well as in February 2017, September and December 2019, and twice in July 2020. In addition, Russia hat vetoed further resolutions in October 2016, in April, October, and November 2017, and in April 2018. Even though the UNSC could agree on 26 resolutions on the Syrian conflict between 2011 and 2021, these focused mostly on very narrow aspects such as humanitarian access and the use of chemical weapons and did neither contribute to a solution of the conflict nor secure the protection of civilians. Dissatisfaction with this lack of engagement with the atrocities committed led to the revival of another idea that had been discussed since the initial proposal of R2P by the International Commission on Intervention and State Sovereignty in 2001 (ICISS, 2001): Beginning with draft GA-resolution A/66/L.42/Rev.1 tabled by the so-called “Small 5” (S5—Costa Rica, Jordan, Liechtenstein, Singapore, and Switzerland) in May 2012, the discussion of a waiver of the use of the veto by the permanent UNSC members in cases of mass atrocities started again. After the S5 withdrew the draft following pressure from the P5, France and Mexico revived the idea in October 2013 and called for a code of conduct for the use of veto (GCR2P, 2016). Simultaneously, the informal Accountability, Coherence and Transparency Group (ACT) drafted a proposal for such a code of conduct in 2015 “regarding Security Council action against genocide, crimes against humanity or war crimes” (ACT Group, 2015). More than 120 member states were supporting the proposals by the end of 2018 (GCR2P, 2019b). But China, Russia, and the US were opposed to such restraint. During a ministerial side-event on regulating the veto in the event of mass atrocities in September 2014, Russia emphasised that “the use of the veto or the threat to use it or the danger to be used has repeatedly safeguarded the UN against doubtful undertakings […] including the examples against the aggression of Yugoslavia in 1999, war in Iraq in 2003 or pushing Syria towards collapse in recent years” (Russia, 2014). Nevertheless, the support for such a code of conduct shows that not only Western states are in favour of enforcement action in extreme cases of mass atrocities. However, one must not make the mistake to equate enforcement action, such as in Libya, with the UNSC’s practice of implementing R2P. Libya remains until the point of writing the only case in which the Security Council authorized member states to use force without the consent of the host state. Measures below the threshold of intervention and consensus-based international involvement are more common than one might think. Figure 1 shows that the UN Security Council referred to R2P after

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Fig. 1 Security council resolutions with reference to R2P between 2005 and 2019a . a Data: 84 UNSC Resolutions. Source Own figure

the Libya intervention (2011–2015) three times more often than between 2005 and 2011 and even more often from 2016 to 2019.7 However, the data reveals that the UN Security Council is most of the time emphasizing the protection responsibilities of the state and hence reaffirming national sovereignty. The closer look at measures mandated by the Security Council in resolutions on country-situations between 2005 and 2015 in Table 1 shows that sovereigntyfriendly, supportive measures, like peacekeeping, mediation, or state-building are actually the standard of implementation of R2P by the UNSC. Even if this consent is not granted completely without pressure from the outside in some cases, like in Ivory Coast, in South Sudan or Sudan, the Security Council’s implementation of R2P is on a formal level reaffirming the respective nation’s sovereignty. There are still mass atrocities to which the UNSC does not react adequately, like in Syria, North Korea, Myanmar, or in the recent war of aggression of Russia against Ukraine, but R2P has contributed to a discursive shift that is tremendously compared to the debates in the 1990s and early 2000s (Bellamy, 2013). However, given the 7

These Resolutions were identifies by searching in the UN Documents Database (http://docume nts.un.org/) for the following terms (“…” stands for a truncation): responsibility … to protect, responsibility for … the protection of civilians, paragraphs 138 …, responsibility for the protection. After a further verification, the following resolutions were included in the survey: S/RES/1653, S/RES/1674, S/RES/1706, S/RES/1894, S/RES/1970, S/RES/1973, S/RES/1975, S/RES/1996, S/RES/2014, S/RES/2016, S/RES/2040, S/RES/2085, S/RES/2093, S/RES/2095, S/RES/2100, S/RES/2109, S/RES/2117, S/RES/2121, S/RES/2127, S/RES/2134, S/RES/2139, S/RES/2149, S/RES/2150, S/RES/2155, S/RES/2165, S/RES/2170, S/RES/2171, S/RES/2185, S/RES/2187, S/RES/2196, S/RES/2206, S/RES/2211, S/RES/2217, S/RES/2220, S/RES/2223, S/RES/2226, S/RES/2227, S/RES/2228, S/RES/2241, S/RES/2244, S/RES/2250, S/RES/2252, S/RES/2254, S/RES/2258, S/RES/2262, S/RES/2277, S/RES/2286, S/RES/2288, S/RES/2290, S/RES/2296, S/RES/2295, S/RES/2301, S/RES/2304, S/RES/2317, S/RES/2327, S/RES/2332, S/RES/2339, S/RES/2340, S/RES/2349, S/RES/2348, S/RES/2360, S/RES/2364, S/RES/2363, S/RES/2372, S/RES/2374, S/RES/2385, S/RES/2387, S/RES/2389, S/RES/2399, S/RES/2409, S/RES/2417, S/RES/2419, S/RES/2423, S/RES/2428, S/RES/2429, S/RES/2431, S/RES/2439, S/RES/2444, S/RES/2449, S/RES/2457, S/RES/2459, S/RES/2463, S/RES/2499, S/RES/2502.

X

X

Justice and security sector reform

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

(continued)

X

X

X

X

X

X

X*

X*

X

X

X

X

X*

Stabilization/capacity building

X

X

X

Mediation/good offices

X

X

X

X

X

Reference to ICC investigations

X

X

X

X

X

X

Cantral African Rep.

X

X

Syria

Arms embargo

X

X

South Sudan

Sanctions

X

X

Sudan (Darfur)

X

X

X

Somalia

X

X

X

X

Mali

Mandate for protection of X civilians

X

X

Libya

X

X

Yemen

Mandate f. use of force by EU peacekeepers

Mandate f. use of force by AU peacekeepers

X

Mandate f. use of force by UN peacekeepers

X

X

Ivory Coast

Mandate f. use of force by member states

Dem. Rep. Congo

Table 1 Measures mandated in country-specific UNSC resolutions with reference to R2P 2005–2015

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Dem. Rep. Congo X

Ivory Coast

Yemen

X

Libya

X

Mali

Somalia

South Sudan X

Sudan (Darfur) X*

X*

Syria

X

Cantral African Rep.

Data: 34 Security Council Resolutions on 10 crises between September 2005 and December 2015 which refer to R2P: Dem. Rep. Congo: Res. 1653, 2211; Ivory Coast: Res. 1975,2226; Yemen: Res. 2014; Libya: Res. 1970, 1973, 2016, 2040, 2095; Mali: Res. 2085, 2100, 2227; Somalia: Res. 2093, 2244; Sudan (Darfur): Res. 1706, 2228; South Sudan: Res. 1996, 2109, 2155, 2187, 2206, 2223, 2241, 2252; Syria: Res. 2139, 2165, 2254; Central African Rep.: Res. 2121, 2127, 2134, 2149, 2196, 2217 * Measures were mandated, but not in the resolutions that referred to R2P Source Own figure

Mission of inquiry

Table 1 (continued)

36 G. P. Hofmann

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high level of contestation of international interference in the internal affairs of states, the Security Council implements R2P in a less intrusive way than the drafters of R2P might have imagined. In practice, R2P is not understood as a “duty to protect communities from mass killing” (ICISS, 2001: 17) but rather as “a ‘duty of conduct’ by members of the international community: to identify when atrocity crimes are being committed (or when there is threat of commission) and to deliberate on how the three-pillar framework might apply” (Welsh, 2013: 387). This is a considerable change, as some criticize (e.g. Hehir, 2019), and some of the cosmopolitan ambitions underlying R2P failed, as state sovereignty was reaffirmed in the debate on R2P (Welsh, 2019: 68). The international community is still unable to react to the worst atrocities of our time, as the wars in Syria and Ethiopia or the ethnic cleansings and violence against the Rohingya in Myanmar and the Russian war crimes in Ukraine show. Hence, R2P seems to play an important role in setting the normative framework within which the international community assesses and discusses mass atrocities, but at the same time, it does not have the effect desired by its creators. At least, atrocity prevention and the implementation of the R2P have tended “to be more successful when there are fewer competing priorities” and rather “in low-profile situations than in high-profile situations” when atrocity prevention was not rivaling with larger geopolitical agendas of the major powers (Bellamy & Luck, 2018: 187). Closing the cycle and returning to the argument of this chapter: While the implementation of R2P by the Security Council has provoked norm contestation, the practice of the Security Council itself reflects the normative cleavages with regard to R2P among states. State consent is the rule and not the exception when the UNSC applies R2P. The implementation of the norm set is, hence, reflective of the contestation processes surrounding it and vice versa. The next section elaborates on this aspect further.

6 Impact of Contestation on R2P’s Implementation Despite a lack of unanimity regarding the Responsibility while Protecting-proposal, the Secretary-General referred to RwP as a “useful catalysts for further discussion” (Ban Ki-Moon, 2012a: §58), and in 2015 he called it a priority to “consider how protection missions authorized by the Security Council, but conducted by third parties, should be reported and reviewed, thereby addressing the concerns expressed after the Libya intervention in 2011” (Ban Ki-Moon, 2015: §64). Furthermore he claimed that “efforts to improve decision-making, monitor implementation and honour civilian protection standards will all contribute to achieving the goal of responsible protection” (Ban Ki-Moon, 2015: §43). But fundamental disunity between (a) the US, the UK, and France on the one hand and the supporters of RwP on the other as well as (b) between China, Russia, and other R2P-sceptics on one side and R2P supporters on the other stalled any progress on this issue: In 2015, Australia and the Netherlands attempted to draft a GA-Resolution affirming

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the GA’s commitment to R2P. But during their negotiations concerns between the drafting group and wider membership on the language on monitoring with regard to the use of force—the issues addressed by RwP—became a stumbling stone and the attempt failed eventually (Stefan, 2017: 100).8 The resolution has never been tabled in the UNGA. In September 2017, R2P was finally put on the official agenda of the 72nd General Assembly with 113 votes in favour, including sceptics such as Brazil, India, and Malaysia; 21 countries voted against it (UN General Assembly, 2017). The debate took place in summer 2018 but did not result in a GA-resolution. During the debate, the Indian representative wrapped up the critique brought forward by many sceptics of R2P, especially since the Libyan intervention, and which is still blocking progress regarding the implementation of R2P’s third pillar: While the responsibility to protect, at its core, has an appeal as a noble cause, it has been selectively used in the context of a wider geostrategic balance of power among competing players or groups. We are all aware of the many critical questions that must be addressed if that noble cause is to be pursued in an impartial manner. […] In short, it is our view that the current system of collective international security, which should be enforced through the Security Council, cannot isolate the implementation of a concept such as the responsibility to protect from double standards, selectivity, arbitrariness and misuse for political gains. (India in: UN General Assembly, 2018)

However, the UNGA had to decide every year anew whether or not the R2P became part of the agenda, and these debates have been controversial (see, e.g. UNGA, 2019). It was not before May 2021 that the UNGA adopted the first UNGA-resolution on the R2P since 2009, Resolution 75/277, which still gives a hint on how contested R2P still is, as the UNGA did only agree on including the R2P and atrocity prevention on its regular annual agenda and on requesting the UN-Secretary-General to report annually on the topic. Given this contestation, the intervention in Libya did not only result in a discussion of intervention principles. It led to a renewed impetus for specific initiatives that aim to implement the preventive aspects of the norm set. Supporters of R2P besides France, the UK, and the US also saw the “need to rebuild broad political support for R2P in the post-Libya environment” during a ministerial meeting of R2P supporters in 2011, and several countries emphasized the “need for clarity of purpose, tight interpretation of R2P mandates, and consistency of application” (GCR2P, 2011). Furthermore, in further developing R2P, the claims uttered by sceptics had to be taken seriously: “In particular, participants suggested that there was a need for further research on targeted sanctions; on a military doctrine for intervention, including the notion of ‘responsibility while protecting’; and especially upon developing noncoercive preventive capacities” (GCR2P, 2011). As a European diplomat said: If you look at history, and unfortunately at the Libyan situation, you will have many of the sceptical states, they can say ‘yes, but that’s all fine and well but look at what happened’.

8

Private e-mail exchange of the author with NGO representatives in New York in January 2017.

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That is still a challenge, how to go about really assuring states that when we talk about R2P we don’t mean that we just want to bomb everybody.9

After Libya, NGOs, the UN, and those states that were committed to an implementation of R2P turned their focus towards the consensual aspects of R2P: atrocity prevention and international cooperation. Supporters of R2P—states, NGOs, and the UN Secretariat—actively started reframing R2P in terms of prevention and international assistance in order to make the norm set more palatable to sceptics and opponents of the R2P agenda (Hofmann & Suthanthiraraj, 2019: 248). The Secretary-General and his Special Advisors on the prevention of Genocide and the Responsibility to Protect, who draft the annual reports on R2P’s implementation, declared 2012 to be the “year of prevention” in order to raise attention and tried to refocus the debate on this aspect of the R2P norm set (Ban Ki-Moon, 2012b): The 2013 report turned to the protection responsibilities of states (Ban Ki-Moon, 2013) and the 2014 report focussed on means of international support to strengthen the state (Ban Ki-Moon, 2014). This provided other R2P supporters with helpful arguments in their engagement with sceptical states: When we see the latest report of the Secretary General [in 2014], it was good that he focused on prevention based on specific cases and argued not in a conceptual vacuum. Thereby it becomes easier for states to accept these ideas, even for Venezuela and Cuba. It gives a concrete aspect to the R2P concept. There are many states afraid of the consequences of the R2P concept. Narrowing it down to specific cases of application helps to understand it.10

This was further facilitated by a framework of analysis on atrocity prevention published by the office of the Special Advisors on Genocide Prevention and the R2P that operationalizes what early warning and prevention imply under the R2P umbrella (UN OSAPG, 2014). The successor of Ban Ki-Moon as UN SecretaryGeneral, António Guterres, continued Ban’s strategy of emphasizing prevention in the implementation of R2P. In his 2017 report, he urged states to eventually fulfil their moral, legal, and political responsibilities to prevent mass atrocities by explicitly linking the implementation of R2P to existing institutionalized mechanisms and institutions for protecting and promoting human rights and respect for international humanitarian law on the national level as well as on the international level (Guterres, 2017). In 2018, he linked the implementation of R2P to his broader conflict prevention agenda (Guterres, 2018). A year later he took stock of the measures that states and the international community as a whole have been using to prevent atrocity crimes (Guterres, 2019). In 2020, he focused on how the R2P was connected to the Women Peace and security agenda and the prevention of gender-based violence (Guterres, 2020). And in 2021, he reported on how the UN has operationalized the R2P—again with a focus on the challenges that remain to systematically realize a priorization of atrocity prevention on the global, regional, and national levels (Guterres, 2021). This 9

Author’s private interview with a diplomat from a European Country, New York, 3 September 2014. 10 Author’s private interview with a diplomat from a European country, New York, 2 September 2014.

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emphasis on prevention fits into Guterres’ general emphasis on conflict prevention, and it builds upon Ban Ki-Moon’s efforts, including his limited effective attempt to prioritize the protection of human rights across the whole UN system with the Human Rights Up Front Initiative from 2013 (Jacob, 2020: 24–27). However, not only the UN but also other entities put their emphasis on the preventive aspects of the R2P (Hofmann & Suthanthiraraj, 2019), as the debate on R2P during and after the Libyan crisis has been preoccupied with questions of intervention. During that time, only one larger state-led initiative focussed on the institutionalization of the preventive aspects of R2P: Supported by the New York-based Global Centre for the Responsibility to Protect, Denmark and Ghana had initiated the so-called R2P Focal Point initiative in 2010: Member states should appoint a national focal point for R2P who should participate in a global network that aims to inform atrocity prevention efforts and policies (GCR2P, 2015). Costa Rica and Australia later joined Ghana and Denmark as lead nations. The Focal Point initiative found resonance mainly among those states that had already been supporters of R2P, but its membership increased significantly after the Libya intervention, from 11 Focal Points in September 2010 to 61 in May 2019 (Costa Rica et al., 2011; GCR2P, 2019a). The overemphasis on questions of intervention following Libya motivated more states to engage with the issue of prevention. In doing this, they connected the ideas behind R2P to already established norms and practices, labelling new initiatives not as connected to the R2P concept but to genocide and atrocity prevention in general. The Latin American Network for Genocide and Mass Atrocity Prevention was launched in March 2012 by government officials from Argentina, Brazil, Chile, and Panama, supported by the Auschwitz Institute for Peace and Reconciliation (Latin American Network for Genocide and Mass Atrocity Prevention and AIPR, 2017). As many democratic politicians in Latin America had fought against atrocities committed by autocratic regimes, the intention to prevent further atrocities on the continent proved as a solid starting point. The Network supports states in drafting atrocity prevention policies and seems to be successful: Except Cuba, all Latin American states are participating, including Venezuela and Nicaragua which are strong sceptics of R2P. Furthermore, Global Action against Mass Atrocity Crimes (GAAMAC) is aiming to build a network of government officials, too (GAAMAC, 2015b). Launched in March 2013 by six states, three of them participating in a genocide prevention network existing since 2008 (Argentina, Switzerland, and Tanzania) and three participating in the R2P Focal Point network (Australia, Costa Rica, and Denmark), and with the support of NGOs and academic institutions, GAAMAC is a state-led, voluntary, and informal consultative network. An exchange of experiences and best practices should help member states to develop their tailored strategies for atrocity prevention. Decisions, even though non-binding to the members, shall be made by consensus, in order to increase trust and solidarity (GAAMAC, 2015a: 5–6). The second meeting of GAAMAC in 2016 was attended by 52 states from all continents, more than 50 NGOs, and several International Organizations (GAAMAC, 2016). The third meeting took place in May 2018 in Uganda.

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The motivation behind this initiative was, according to diplomats familiar with the evolution of GAAMAC, to implement atrocity prevention in order to build support for the ideas behind R2P: “for some countries in the region it will be much easier to join the Genocide Prevention initiative than the R2P initiative, because R2P is a label that can be helpful for certain things but also brings some other problems”.11 A European diplomat agrees with this and says: “If we do talk about genocide prevention, you get another group of states that have been for a long time actively involved in that. […] I think, genocide prevention or other types of terms are easier to sell and are less controversial [than R2P]”.12 A similar strategy was pursued by R2P supporters in South-East Asia: Initiated by the current Special Advisor on Genocide Prevention, Adama Dieng, and supported by the Asia Pacific Centre for the Responsibility to Protect in Australia, a panel of eminent persons was set up by the former Secretary-General of ASEAN and former Foreign minister of Thailand Surin Pitsuwan (High-Level Advisory Panel on the Responsibility to Protect in Southeast Asia, 2014: 2). The panel’s report has been presented at the UN in September 2014 and claims that R2P was a means to strengthen sovereignty and that it was in line with ASEAN’s fundamental commitment to sovereignty and non-interference (High-Level Advisory Panel on the Responsibility to Protect in Southeast Asia, 2014). However, some states in the region remain suspicious about the motivation for the report, despite the participation of distinguished elder statesmen from the region: If we look at their secretariat and who it supported, it was the Australian government and it was Australian funding. While it takes into account the views of the member states of ASEAN, it is still a report that reflects a Western perspective on R2P, rather than an ASEAN view. At the launch event, several member states of ASEAN asked questions: How consistent is it with international law? Can it be abused? What is about implementation? There is still much to be debated.13

Nevertheless, these developments show how the focus of the debate changed within the decades of R2P’s existence. While the further development of the contentious aspects of R2P—namely international enforcement action to react to mass atrocities—seems more or less to be deadlocked, the less intrusive aspects of R2P—national prevention and international support—start to get traction. This is also reflected in UN Secretary-General’s approach: Even though Ban KiMoon emphasized that all three pillars of R2P should be a “guide for action to prevent and halt” atrocities, five out of six of his implementation priorities14 for the next decade are related to prevention and international assistance (Ban Ki-Moon, 2015: 11

Author’s private interview with a diplomat from Middle-American country, New York, 2 September 2014. 12 Author’s private interview with a diplomat from a European country, New York, 3 September 2014. 13 Author’s private interview with a diplomat from a South-East Asian country, New York, 27 October 2014. 14 The UN, regional organizations and states should demonstrate more political commitment, provide actual protection to communities at risk and pursue atrocity prevention and response as national priorities. Second, additional resources should be invested in atrocity prevention, early

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15–19). His successor António Guterres followed this path by emphasizing the need to strengthen existing capacities, promote accountability, and innovate prevention through civilian action (Guterres, 2018). As we see in these implementation efforts related to the first and the second pillar, supporters of R2P actively engaged with the critique brought forward against the norm set and reframed R2P. Hence, prevention and international assistance are dominating the international debate on the implementation of R2P, while the third pillar and especially the aspect of coercive collective action to protect people from ongoing atrocities does not play a central role in the current implementation agenda (Hofmann & Suthanthiraraj, 2019: 253).

7 Conclusion R2P is an attempt to reconcile two aims of the United Nations Charter: promotion of human rights (Art. 55) and sovereign equality on the basis of the non-intervention norm (Art 2.7). Even though the scope conditions of its application were limited to genocide, war crimes, ethnic cleansing, and crimes against humanity (UNGA, 2005: §138–139), R2P has the potential to question the prevailing normative consensus on the foundations of the international order—sovereign equality of states based on non-interference in the internal affairs. Against the backdrop of constructivist norm scholarship, one can conclude that it was the contestation of the R2P concept’s validity during the 2005 world summit that was constitutive for the norm: What states agreed upon was not a norm of intervention, but a norm reaffirming sovereignty while recognizing the need to do something when confronted with mass atrocities. Twenty years after the publication of the ICISS report which introduced the concept of R2P and more than 15 years after the endorsement of R2P by the UN General Assembly, the political controversy surrounding R2P has changed. Until 2009 the sceptics of the norm set questioned the validity of R2P by emphasizing the importance of sovereignty rights. However, since the Secretary-General had laid out a framework for R2P’s implementation, the debate focussed on how to implement R2P in practice (Thakur, 2016b: 432–433). Nowadays the validity of R2P is barely questioned. It is rather the implications of R2P for international security policy and the question of the adequate means and instruments to deal with atrocity crimes that are disputed (Arcudi, 2016; Deitelhoff, 2019). This applicatory contestation (Deitelhoff & Zimmermann, 2020) has shaped the norm nevertheless: The first and second pillar of R2P enjoy broad discursive support, the application of the third pillar warning, conflict prevention, peacebuilding, protection of civilians, empowerment of women, and criminal justice. Third, the Security Council should ensure timely and decisive responses in cases of mass atrocities. Fourth, repeated cycles of violence should be interrupted by means of peacebuilding, good governance, transitional justice and societal reconciliation. Fifth, regional organizations should play a vital role in implementing R2P. Sixth, peer networks between state officials, UN staff and NGOs should be strengthened. States should develop national R2P strategies (Ban Ki-Moon, 2015: 15–19).

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remains contested. While mainly Western states push for coercive measures to implement R2P, as in Libya or Syria, many states form the Global South are attempting to safeguard their pluralist conception of world order based on sovereign equality and a rather consensus-bases conception of multilateralism. Developing and emerging powers prefer peaceful instruments of response to mass atrocities and see dialogue as the best path to conflict resolution. Infringement upon national sovereignty is still a hot issue for many states in the global south. Regime changes imposed by force, as in Libya in 2011, are not accepted. Many states see this as endangering their claim to self-determination and the formal equality of sovereignty in view of the special role of the five permanent members of the Security Council and the double standard observable there. Brazil’s Responsibility while Protecting concept and the Chinese notion of Responsible Protection are good examples of these preferences. Pro-R2P norm entrepreneurs took these concerns into account in their attempts to implement R2P. Initiatives to institutionalize R2P or parts of it are being promoted not only by the UN, Western states, and civil society actors but also by non-Western states like Argentina, Costa Rica, Guatemala, Ghana, and Tanzania. Because of the increased mistrust of R2P in the aftermath of the Libya intervention, norm entrepreneurs are making a greater effort to tie it to regional social and legal norms, which are already established, sometimes without explicitly making use of the terminology of R2P. The reasoning behind these initiatives is to advance the concrete implementation and institutionalization of the norm of state responsibility for atrocity prevention parallel to declarative commitments, while, for the time being, bracketing questions of intervention. However, some authors, such as Aidan Hehir, see this change as the expression of a weakness of R2P: “States do routinely express their support for R2P, but the nature of the variant of ‚R2P‘ they are actually affirming is ultimately vacuous and so malleable that it can be employed for nefarious ends” (Hehir, 2019: 213). Moreover, while R2P was being reaffirmed, the number of atrocities around the world was on the rise and the human rights situation in many countries was deteriorating (Hehir, 2019: 216). Hence, R2P was not and could not be working (Hehir, 2019: 221). And even some advocates of R2P are criticizing that “there has been a tendency to overemphasize R2P’s preventive side and to underemphasize the responsive side” (Bellamy & Luck, 2018: 188). It is correct that the enforcement of R2P’s third pillar and the actual protection of human beings under threat around the world is not working sufficiently—the situation of civilians in Syria and Ukraine or of the Rohingya minority in Myanmar is only the most recent examples of rampant violence against vulnerable populations that the United Nations was unable to stop. However, norms—including the R2P—are counterfactually valid, as they are a shared expectation of appropriate behaviour, a normative claim which expresses a positively perceived possible future state of social relations (Möllers, 2015). As the evidence shows the norm’s implementation and processes of norm contestation are mutually constitutive and must be analysed together in order to grasp the complexity of R2P’s development. More than one and a half decades after the world summit, it is still too early to make a final judgement on R2P’s impact on international politics. R2P must not only be judged in terms

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of states and the international community meeting the aspiration of a world without mass atrocities, “but also in terms of the degree to which it has changed expectations” (Welsh, 2019: 68). And as shown in this chapter, the international community is very often referring to R2P when criticizing and condemning atrocities, even though it still fails too often to react adequately to such events. While R2P is far from being internalized by all members of the international society, it still has the potential to change the behaviour of states—not necessarily by the means of intervention but by strengthening the prevention of atrocities on the domestic, regional, and international levels. This may in the long run also have an impact on states’ acceptance of coercive means to implement the third pillar of R2P. The development of R2P has not yet come to an end.

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Powers, M. (2015). Responsibility to protect. Dead, dying, or thriving? The International Journal of Human Rights, 19(8), 1257–1278. President of the 59th General Assembly. (2005a). Draft outcome document of the high-level plenary meeting of the General Assembly of September 2005 submitted by the President of the General Assembly, 8 June 2005. UN Document Symbol: A/59/HLPM/CRP.1. UN General Assembly, New York. President of the 59th General Assembly. (2005b). Revised draft outcome document of the highlevel plenary meeting of the General Assembly of September 2005 submitted by the President of the General Assembly, 22 July 2005. UN Document Symbol: A/59/HLPM/CRP.1/Rev.1. UN General Assembly, New York. President of the 59th General Assembly. (2005c). Revised draft outcome document of the high-level Plenary Meeting of the General Assembly of September 2005 submitted by the President of the General Assembly, 5 August 2005 (9:30pm). UN Document Symbol: A/59/HLPM/CRP.1/Rev.2. UN General Assembly, New York. http://www.un.org/ga/59/hlpm_rev.2.pdf. Accessed 13 March 2017. President of the 59th General Assembly. (2005d). President’s draft negotiating document for the high-level Plenary Meeting of the General Assembly of September 2005, submitted by the President of the General Assembly, 6 September 2005. UN General Assembly, New York. http://res ponsibilitytoprotect.org/files/DOD_6Sept05_rev2.pdf. Accessed 13 March 2017. President of the 59th General Assembly. (2005e). Draft negotiated outcome. 12 September 2005, 8am. UN General Assembly, New York. http://responsibilitytoprotect.org/files/DOD_12Sept05_ rev2.pdf. Accessed 13 March 2017. President of the 63rd General Assembly. (2009). Concept note on responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. Office of the President of the UN General Assembly, New York. http://www.un.org/ga/president/63/interactive/ protect/conceptnote.pdf. Accessed 19 April 2017. Price, R. (1998). Reversing the gun sights: Transnational civil society targets land mines. International Organization, 52(3), 613–644. Quinton-Brown, P. (2013). Mapping dissent. The responsibility to protect and its state critics. Global Responsibility to Protect, 5(3), 260–282. Reus-Smit, C. (2011). Struggles for individual rights and the expansion of the international system. International Organization, 65(2), 207–242. Rieff, D. (2011, November 8). R2P, R.I.P. The International Herald Tribune. Risse, T., & Ropp, S. C. (2013). Introduction and overview. In T. Risse, S. Ropp & K. Sikkink (Eds.), The persistent power of human rights. From commitment to compliance (pp. 3–25). Cambridge University Press. Rosert, E., & Schirmbeck, S. (2007). Zur Erosion internationaler Normen. Folterverbot und nukleares Tabu in der Diskussion. Zeitschrift für Internationale Beziehungen, 14(2), 253–288. Russia. (2012, September 5). Statement at the informal interactive dialogue of the UN General Assembly on responsibility to protect: Timely and decisive response. http://responsibilitytopr otect.org/Russia%20Statement%20_Transcribed_.pdf. Accessed 27 April 2016. Russia. (2014, September 25). Statement delivered at the 2014 ministerial side-event on regulating the veto in the event of mass atrocities. http://www.globalr2p.org/media/files/russia-transcribed. pdf. Accessed 23 March 2017. Sandholtz, W. (2008). Explaining international norm change. In W. Sandholtz & K. W. Stiles (Eds.), International norms and cycles of change (pp. 1–26). Oxford University Press. Serrano, M. (2011). The responsibility to protect and its critics. Explaining the consensus. Global Responsibility to Protect, 3(4), 425–437. South Africa. (2005, April 20). Statement by Mr. Xolisa Mabhongo, Charge D’ affaires, in the informal thematic consultations of the General Assembly on Cluster III Issues. http://www.southa frica-newyork.net/speeches_pmun/view_speech.php?speech=5561068. Accessed 19 November 2013.

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Dr. Gregor Peter Hofmann is head of the Presidential Department at the WZB Berlin Social Science Centre. He is also an associate fellow at the Peace Research Institute Frankfurt (PRIF). His research focuses on the role of justice conflicts in international relations as well as on the contestation of norms of protection within the context of the United Nations. He has published on these issues in journals like International Negotiation and Global Responsibility to Protect. In 2018, he received his doctorate from Goethe University Frankfurt, with a thesis on Justice conflicts and norm development. The international contestation of the Responsibility to Protect that is published by Springer in 2019 (in German).

Forums Do Matter: Examining the Norm Dynamics of the Responsibility to Protect (R2P) Anne Peltner and Tanja Brühl

Abstract In this chapter, we investigate if institutional settings do have an influence on norm emergence and norm implementation of the Responsibility to Protect (R2P). We argue that there is a connection between the institutional setting and the status of the norm. The discussion of R2P has taken place in different institutional settings over time. Due to three characteristics of those arenas—membership, procedures of decision-making and voting procedures—the respective arena contributes to a challenge or confirms the norm of R2P. A broad membership, a high degree of formality in decision-making procedures and equal voting procedures strengthened the acceptance of the R2P norm. In contrast, a small forum, a high degree of informality and conditions favouring unequal voting may have challenged the norm of R2P.

1 Introduction In 2005 the United Nations General Assembly unanimously adopted the commitment on Responsibility to Protect. Accordingly, every state has the responsibility to protect its population from genocide, war crimes, ethnic cleansing or crimes against humanity. Should a state fail to fulfil this obligation, the international community, in the form of the Security Council, is called upon to take appropriate civilian and military measures to protect the population. The World Summit Outcome Document (A/60/1), which also contained some further innovations for the United Nations, was adopted without dissenting votes. Following the adoption of this document, a process of discussion lasting several years on the appropriateness or selectivity of humanitarian interventions came to a productive end. A. Peltner (B) Department of Political Science, Goethe University, Frankfurt/Main, Germany e-mail: [email protected] T. Brühl Technical University of Darmstadt, Darmstadt, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2023 A. Reichwein and M. Hansel (eds.), Rethinking the Responsibility to Protect, Contributions to International Relations, https://doi.org/10.1007/978-3-031-27412-1_3

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Some states, and civil society actors in particular, were disappointed with the result, as they wanted to anchor a broader and more comprehensive concept of the Responsibility to Protect (R2P). However, at least the minimal consensus established a common understanding of how a community of states could deal with massive human rights violations. Yet, this consensus crumbled only a short while later. In August 2006, the Security Council discussed the situation in Darfur. It could not agree to impose coercive military measures in accordance with the R2P. The same applied to former and current conflicts in Myanmar (2008, 2017, 2021) or Georgia (2008), to name but a few examples. In the opinion of many, the Security Council also failed to act in accordance with R2P in the current conflict in Syria. In Libya (2011), on the other hand, the Security Council authorized a military intervention. This inconsistent handling of R2P is the starting point of our analysis. Why is it that the R2P is at times controversial both in terms of its core and its application and is then accepted again? The controversial nature of the norm is also astonishing from a norm-theoretical perspective, since the contestation of the R2P norm exists both at the procedural and the substantive level. Based on institutionalist considerations, we argue that the characteristics of forums influence the contestation of R2P.1 There have been several changes in both the creation and implementation of norms: Originally, the International Commission on Intervention and State Sovereignty (ICISS), set up by the Canadian government, developed a concept for R2P (ICISS, 2001). The High-Level Panel on Threats, Challenges and Change, an expert body at the United Nations, took up the idea from the ICISS Report and developed it further. Finally, the General Assembly adopted the R2P at the World Summit in 2005. The implementation of the norm, in particular the military component of the R2P, was then again largely the responsibility of the Security Council, while further discussion of the R2P was, according to the document, the responsibility of the General Assembly. However, it only explicitly dealt with the R2P in 2009, 2018, 2019, 2021 and 2022. Discussions about the norm were also continued in the Informal Interactive Dialogue, a forum open to any state, and in the Human Rights Council. Through his reports, the UN Secretary-General also provided suggestions for the further development of the norm. The discussion of the R2P was also influenced by the respective fora on implementation, including which forum was appropriate. This is where our argument comes into play. The negotiation forums differ, among other things, with regard to membership (exclusive circle or comprehensive membership), decision-making procedures (informal vs. formal) and voting modalities (weighted voting rights or equal voting rights for all members). With changes of the negotiation forums, the contestedness of the norm also varies. As we will explain later, we contend that the following hypothesis applies: the broader the membership of the negotiating body, the more formal the decision-making procedures and the more equal the voting modalities, the less (procedurally) contested a norm is. Conversely, a norm is all the more contested: the fewer members a forum has, the higher the proportion of informal decision-making procedures and the more unequal the voting modalities. In concrete terms, this means that the norm is less 1

This publication is based on our previous work (Peltner & Brühl, 2020).

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contested if it is debated and further developed in the General Assembly. With a change to the Security Council comes a higher level of contestedness. The norm developed non-linearly in the sense that there was no continuous or even steadily growing approval or decreasing contention regarding the norm, but contestation in relation to the norm varies depending on the forum in which it is discussed. In order to make clear the importance of negotiation forums and their design for negotiating norms, we first reconstruct some assumptions of norm research on the R2P. From the research on rationalist and constructivist institutional theories, we derive the three above-mentioned forum characteristics. In the following, we illustrate our argument at different negotiation fora of the R2P. We show that these had a great influence on the contestedness relating to the norm.

2 R2P as a Contested Norm In contrast to earlier norms research, current research conceptualizes norms as “works-in-progress” (Krook & True, 2012: 108). It therefore assumes that norms are subject to constant change. The fluid, processual character of norms implies that they are contested and can have varying meanings (Wiener, 2004). This general statement from research on norms also applies to the R2P. Its evolution was “non-linear” (Kurtz & Rotmann, 2015: 16, similar Jacob, 2018) and was marked by contestation (Welsh, 2010: 426). The research distinguishes between substantive and procedural contestation. In the case of substantive contestation, there is a dispute about the situations in which the R2P requires concrete actions. The procedural contestation refers to the appropriate forum in which the R2P should be developed (Welsh, 2013: 328ff; 2014: 132ff). Although this procedural dimension points to the importance of negotiation forums, the argument could be developed more concisely. Welsh thus points out that the Summit Outcome Document of the General Assembly defined the mandate for a discussion on a further debate on R2P as a forum (Welsh, 2014: 132). The Security Council enables powerful members to make politically or strategically motivated decisions through the right of veto. The danger of politicized decisions by the Security Council was also mentioned by the General Assembly in its 2009 R2P debate (Welsh, 2014: 132). We argue that both forms of contestation cannot be considered independently of each other. In particular, procedural contestation can be influenced by the properties of forums and thus open the space for substantial contestation. Rhoads and Welsh note that contestation is influenced both by the place of negotiation in which the norm is institutionally embedded and by access to implementation (Rhoads & Welsh, 2019: 604). The R2P was initially “owned” by the General Assembly, which in principle guaranteed equal and open access to implementation (Rhoads & Welsh, 2019: 604). However, the Security Council’s reference to R2P in its resolutions opened up the possibility of preferential access to implementation by the Security Council (Rhoads & Welsh, 2019: 604). Access to implementation can lead to behavioural contestation: “First, the analysis supports the assertion that

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implementation access, particularly when accompanied by weak access to deliberative and decision-making bodies, increases the likelihood that an actor will pursue behavioural contestation” (Rhoads & Welsh, 2019: 616). Since contestation that is shown through action can potentially call into question the validity of a norm more strongly (Stimmer & Wisken, 2019), this form, in contrast to a purely discursive contestation, is more dangerous for the validity of the norm. In this respect, the observation of the connection between access to implementation and contestation supports our argument that forums play a role in the development of norms. For its part, substantial contestation can be divided into two discourses: the discourses on the justification of norms and the discourses on the application of norms (Deitelhoff, 2013; Deitelhoff & Zimmermann, 2020). At the centre of the discourses on the establishment of norms is the question of which normative expectations one wants to submit to (Deitelhoff, 2013: 28). In discourses on the application of norms, on the other hand, the appropriateness of a norm to a particular situation is discussed and the way the norm is applied (Deitelhoff, 2013: 29). The R2P, therefore, does not automatically lose its validity via disputes about its application (Deitelhoff, 2013: 18). The validity is only limited if the dispute about the norm shifts from the application to the core of the normative obligation or is no longer temporally bounded (Deitelhoff, 2013: 19). If the validity is disputed, this affects the legitimacy of the norm and can lead to its weakening (Arcudi, 2016: 87). Others argued that perceived legitimacy has an effect on how influential transnational networks can be in domestic policy debates (Kollman, 2007: 330). Following on from Welsh’s distinction between procedural and substantive contestation, we argue that the characteristics of negotiation forums can have a decisive influence on the extent to which contestation takes place. Procedural contestation can be transformed into its substantial version.

3 Negotiation Forums and Their Influence Although research on norms has some overlap with institutionalism, it has not yet worked out the significance of negotiation forums. Forums, starting from the Latin forum—which referred to a public place or market place—, are places of argumentative debate. In international relations, these places are mostly formalized. They are negotiating bodies whose composition and functioning have been defined within the framework of an international institution. Negotiating fora are therefore a sub-group of international institutions.

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3.1 The Importance of the Characteristics of Institutional Negotiation Forums Institutionalist considerations have a long tradition in International Relations. Rationalist institutionalism assumes that states use institutions to achieve their own goals. Since certain institutional designs are advantageous for tackling problems of cooperation, states select specific institutions to deal with them. The institutions vary in terms of membership, purview, centralization of tasks, rules for controlling the institution and the flexibility of arrangements between institutions (Koremenos et al., 2001: 763). Backgrounds and cultures, decision-making rules and financing continue to play a role (Kellow, 2012: 337, similar to Pralle, 2003: 237; Schieder, 2017: 202). The process of choosing a negotiating forum is called forum shopping or venue shopping (Beyers & Kerremans, 2012; Pralle, 2003; Princen & Kerremans, 2009; Richardson, 2000). For their part, the institutions compete for themes and “shoppers” (Hansen & Krejci, 2000). The constructivist variant of institutionalism emphasizes the constitutive relationship between institutions and the identity of actors (Simmons & Martin, 2002: 198): Accordingly, the institutions define who the actors are and how they understand their roles (ibid.); which function as instances of socialization (Finnemore & Sikkink, 1998: 902). Furthermore, international organizations play a role in spreading norms because they can disseminate standards of behaviour and opinions (Barnett & Finnemore, 1999: 712ff.; Simmons & Martin, 2002: 198). From the perspective of sociological institutionalism, the choice of a particular institution depends not only on considerations of efficiency but also on collective processes of interpretation and concerns about social legitimacy (Hall & Taylor, 2016: 953). States select a particular institutional design in terms of what is considered normatively appropriate (Wendt, 2001: 1024). The role of venues and venue choice has been given special attention during norm emergence. Elvira Rosert sees venue choice and a possible change as part of the “norm candidate” stage before the process enters norm creation within norm emergence (Rosert, 2019: 1111). Strategic venue choice can have effect on the type of institutionalization during norm cascade (Tansey, 2018: 297). Katharina Coleman (2013) also analysed the influence institution-specific characteristics have on the creation of norms. She asserts that in the phase of the emergence of norms processes of negotiation take place that involve persuasion and bargaining. Compromises are worked out, each party approaches the other in a reciprocal way with regard to the goal, the range, precision and stability of a norm to be agreed upon. This in turn is decisive for the subsequent acceptance of the norm (Coleman, 2013: 167). The characteristics of the arena in which the negotiation takes place influence the course of the negotiations as well as the content of the norm and its international support. Coleman names membership, mandate, type of output, voting procedure and legitimacy as characteristics (Coleman, 2013: 168). Alastair Iain Johnston takes a broader view and points to the cooperation within institutions. He focuses on “pro-norm behaviour” and argues that the characteristics

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of forums are influenced by beliefs and social influence (Johnston, 2001: 509): The specific institutional designs lead to varying social environments and these to differences in the probability and degree of belief and social influence (Johnston, 2001: 509). The decisive dimensions for Johnston are membership, decision-making rules, mandate, voting rights and autonomy of the agents from the principals (ibid.). For example, an ideal situation in which persuasion is likely to be a process of socialization is characterized by smaller membership or decisions taken by consensus (Johnston, 2001: 509f). We take up the approaches of Coleman and Johnston and also assume that the characteristics of a negotiation forum have an impact on the emergence of—and on the acceptance of—norms but in addition we argue that these characteristics also influence contestation over a norm in the subsequent phases of its actual creation. Thus, we follow on from more recent research on norms that focus on the dynamics of established norms beyond their emergence and investigate downstream phases of norm emergence. In contrast to Coleman and Johnston, therefore, we do not consider the phase of norm emergence, but the phase after the adoption of the norm. While Coleman, for example, explicitly examines the effects of negotiation fora and their consequences for norm emergence (Coleman, 2013: 167ff), we focus on the phase following the establishment of the norm. As research on norm contestation has shown, norms remain contested, perhaps especially so, even in the later phases of their development. For example, during the implementation phase of a norm, ambiguities may arise during its application, such as from imprecise formulations. This can lead to discussions about different understandings of norms, which falls under application situations, etc., and which may lead to the further development of the norm, or its differentiation or clarification. Our argument is that the characteristics of a forum also have a decisive influence on the contestation over a norm. In addition, we extend the dimensions given by Coleman by including the category of decision-making procedures, which she considers within the Rules of Procedure. The voting modalities are an independent aspect of great relevance for the contestation of a norm. At the same time, however, we do not consider certain characteristics that Coleman and Johnston name, such as the legitimacy of a forum or the autonomy of the actors. These factors only occur through the perception or value assigned to other actors and therefore require an independent analysis. In addition, we do not look at norm entrepreneurs and their (strategic) choice of negotiation forums (such as Coleman, 2013), but rather focus on the norm addressees and their contestation of a norm.

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3.2 Three Forum Characteristics and Their Effects on Contestation The characteristics of negotiation forums have an impact on negotiation processes and outcomes. Mediated through this, they also influence the contestation of a norm. A connection between large forums and a possibly unspecific but accepted norm— based on simply reaching a lowest common denominator—is only part of our argument. We argue that beyond this, forum characteristics can promote contestation over a norm. Not only do forums influence the content of norms and thus their acceptance but procedural aspects themselves also have an effect. Thus Matthias Dembinski (2017: 6) argues that actors accept decisions if they have been made in situations that correspond to procedural fairness (similar to Coleman, 2013: 170). We develop this argument further: We show that the contestation of R2P is (also) determined by the characteristics of the negotiation forums. We focus on the three most important characteristics: membership, decision-making procedures and voting modalities. Membership of an institution basically determines the actors in a forum. In addition to governmental and non-governmental collective actors, membership can also be open to individuals, such as in expert committees, for example. Membership may be open to any actor or restricted just to specific groups of actors. We argue that the widest possible, unrestricted membership enables a norm to be accepted more readily than with more limited membership (cf. Coleman, 2013: 170). Fora with the largest possible membership tend to include those actors who have to implement the norm in national or international contexts, i.e. those directly affected by a norm. If one follows Finnemore and Sikkink, a norm cascade is possible after reaching a tipping point in which states increasingly adopt the new norm, where the predominant mechanism is that of socialization (Finnemore & Sikkink, 1998: 902). Although from a constructivist perspective, a limited membership can promote conviction, since socialization is more difficult in large forums (Johnston, 2001: 509f), nevertheless this only affects the convictions of the participants in this small forum. If many states are affected by a norm or if it is relevant for the international order—as is the case with the R2P—only a few states can be “socialized” in small forums. Larger groups also have a higher potential for supporters of a norm as well as to blame those who refuse a norm. Also, the social influence of supporters and blaming is higher with a larger audience (Johnston, 2001: 510ff). It has been argued that broad membership can lead to greater potential for opponents of a norm and to the involvement of states that have no direct interest in a particular issue and thus complicate the debate (Berridge, 2010: 153). However, this view overlooks the fact that most international norms, especially in the area of peace and security, can be relevant to all states. We argue, therefore, that the more states are involved in the institutionalization and implementation of such a norm, the less controversial it becomes, i.e. the less the validity of the norm is called into question and the more its (further) development is supported. This can be expressed, for example, in the fact that only discourses on application exist, but not discourses on norm validity (Deitelhoff, 2013).

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Secondly, the controversy over a norm can be influenced by its content, which in turn can be influenced by the size of the forum: In particular, small fora may produce specific norms (Coleman, 2013: 169), whereas large fora may produce contradictory norms. Larger groups are more problematic than smaller ones in terms of effectiveness and require more consultation and organization (Olson, 1998: 45). However, they can be all the more conducive to the acceptance of a norm: Many participants can weaken extreme positions and force the members of a forum to seek a solution that reflects the interests of a large number of delegates (Spiller, 2008: 74). The norm is then reduced to the lowest common denominator. We argue that it is precisely this reduction of content that can strengthen the acceptance of a norm, since every addressee of the norm has at least been able to agree on this core and thus the contestation surrounding norm validity—although not its application—can be reduced. The connection between norm compliance and legitimacy (Börzel & Risse, 2002; Franck, 1990: 24) also ties in with procedural aspects of the genesis of a norm and focuses on those involved, i.e. the members of a particular forum. On the one hand, legitimacy can be generated by containing “principles of fairness”; on the other hand, legitimacy can also arise from the fact that it is in harmony with notions of “right rule-making” in a secular community (Franck, 1990: 38). This procedural aspect was linked, among other things, to participation in rule-making, which was regarded as an internal source of legitimacy (Zürn & Stephen, 2010: 94). This can increase the willingness to follow a norm because legitimacy gives states a justification for adhering to existing rules and norms of conduct (Barnett & Finnemore, 2007: 51). Procedural aspects aimed at co-determination can therefore have an impact on norm acceptance (Dembinski, 2017: 18). The opportunity to participate on equal terms in rule-making by all potentially affected actors increases co-determination (Börzel & Risse, 2002: 151), thereby the legitimacy of the rules and thus the willingness to comply with them (Börzel & Risse, 2002: 142). In this respect, the broadest possible membership is conducive to the general acceptance of a norm. Inclusive multilateral institutions feature “procedural legitimacy”, which may help to gain acceptance for a norm (Hecht, 2017: 715). In this context, Jose took the view that the legitimacy of a “norm enforcer” was important for compliance: “A strong sense of legitimacy can induce compliance with the norm enforcer’s interpretation even in cases of intersubjective disagreement” (Jose, 2018: 38). This perceived legitimacy can be generated by neutrality and expertise (Jose, 2018: 38). We argue that neutrality can also be achieved through equal participation. Participation that is as equal as possible can also be achieved through equal decision-making procedures. This includes, for example, speaking rights or opportunities to design the steps of a procedure. They can be the same or graduated for each participant. In addition, decision-making procedures can be formally recorded and enforced or, in extreme cases, may exist only informally. We argue that there is indeed a connection between the dimensions of formality and equal participation: a forum with formal decision-making procedures tends to offer more equal access, since power imbalances can be limited by adherence to formal procedures. We assume that formal decision-making procedures favour socialization effects: In

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informal negotiations, shaming tends to become less public and thus less effective; informal negotiations can also lead states to abandon their old convictions because they have greater room for manoeuvre (Karns & Mingst, 2013: 149); for example, they do not have to “save face” with the domestic political audience and can thus change their attitudes (ibid., similar to Berridge, 2010: 154; Leguey-Feilleux, 2009: 224). However, formal decision-making procedures are also accompanied by greater transparency of the decision-making processes. This can lead to a greater acceptance, since particularist views are more likely to be uncovered—following Habermas—and the “better argument” can assert itself (Zürn & Stephen, 2010: 94). In addition to Colemans’ characteristics, we introduce the distinguishing criterion of voting modalities. Here, a distinction can be made between consensus and majority systems and, in the latter case, between equally and unequally weighted voting rights. Although weighted votes can lead to efficient decisions, there is a danger that the (re)distribution of the weighting will not be accepted and that, in the worst-case scenario, dissatisfied states will leave the institution (Kahler, 1992: 704). The link between the controversial nature of norms and procedural legitimacy is also relevant: voting modalities with equal rights, such as at the General Assembly, tend to ensure greater legitimacy and thus acceptance (Spiller, 2008: 62). Majority decisions with equal votes follow a procedural fairness model (Spiller, 2008: 62). This means that no minority can make decisions that contradict the majority which can, in particular, curb the feared Western dominance of institutions, and which has a particular influence on perceptions of the UN General Assembly (Zürn & Stephen, 2010: 97). Scholars also indicate the production or maintenance of hierarchies within states through voting or veto modalities (Fehl & Freistein, 2020). In this respect, we argue that in the creation and application of norms, equally weighted votes lead to greater acceptance than unequal or weighted votes. However, majority decisions also lead to a loss of sovereignty if a state has to submit to them, whereas with consensus decisions the sovereignty of a state can be better accommodated (Spiller, 2008: 62f). Majority votes can also produce disgruntled minorities (Buzan, 1981: 326). With regard to equally weighted votes, a distinction can still be made in this respect: The acceptance of a consensus decision is greater than that of majority decisions (Spiller, 2008: 65). Consensus also leads to a higher probability of conviction (Johnston, 2001: 509f). A consensus requirement can lead to projects being voted on only in a weakened form in order to achieve the consent of all and often with concessions being made (Berridge, 2010: 157). However, the consensus system has the advantage that a decision cannot be dominated by a numerical majority of a group of states (Charney, 1978: 43). We argue, therefore, that the broadest possible membership, the most formal decision-making procedures possible and the most equal voting modalities lead to procedural contestation remaining low (see Table 1). Our argument ties in with the research on contestation to the extent that all three characteristics in this form allow the greatest possible access to norm discourses and thus also to contestation, which in turn can strengthen the acceptance of norms. Access to contestation can also generate the legitimacy of a norm (Wiener, 2014: 5, 10, 33f).

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Table 1 Characteristics of forums and the contestation of a norm Membership

Decision-making procedures

Voting modalities

High-procedural contestation

Narrow Not all actors involved affected

Informal No formalized decision-making procedures available

Unequal weighting Not every member has equal voting rights

Low-procedural contestation

Wide As many affected states/actors as possible

Formal Formalized decision-making procedures, e.g. rules of procedure, in place

Equal weighting Each member has equal voting rights

Source Prepared by the authors

4 Norm Development of R2P Within Negotiation Forums The R2P was discussed in various forums until its formal establishment in 2005. The discussion on humanitarian interventions, initially held in the Security Council, was further developed in the ICISS expert commission into a debate on the Responsibility to Protect. This was taken up by the General Assembly in 2005 and subsequently implemented by the Security Council. In turn, the further development of the content lies with the General Assembly itself and the Informal Interactive Dialogues assigned to it.

4.1 Norm Emergence of the R2P The 1990s became the “decade of humanitarian intervention” (Biermann, 2014: 14; translated by the authors), culminating in a new norm of humanitarian interventions authorized by the Security Council (Wheeler, 2000: 16f). Despite the initial emerging “new interventionism” (Debiel & Nuscheler, 1996; translated by the authors), this development was not straightforward: dealing with some conflicts such as Rwanda or Bosnia was described as “failures of the UN to act effectively” (Badescu, 2011: 61). In addition, some interventions during this period were carried out by regional organizations without authorization from the Security Council or with subsequent authorization. All attempts to establish a generally valid doctrine of humanitarian intervention failed (Roberts, 2004: 146). The threatened veto in the Kosovo conflict and Nato’s unauthorized intervention, as well as the selectivity and lack of transparency of Security Council decisions, fuelled fears of abuse of the emerging norm of humanitarian intervention. The then UN Secretary-General Kofi Annan called on the international community to find a new consensus on how to deal with massive

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human rights violations. This call was taken up by Canadian Prime Minister Jean Chrétien at the United Nations World Summit in the autumn of 2000. He announced that a commission of experts would be set up to work on human rights protection and issues of humanitarian intervention. Canadian Foreign Minister Lloyd Axworthy then formally appointed ICISS on 14 September 2000. Within a year, it was to draw up a proposal on how to deal with massive human rights violations, which Canada then wanted to feed into the next plenary debate of the General Assembly. Published in 2001, the report first introduces the concept of Responsibility to Protect, where responsibility for the protection of human rights lies primarily at the national level with states and then at the global level. Instead of addressing massive human rights violations within a state from the perspective of a possible intervention, the focus was on the right of victims to protection and support and on the duty of outsiders to grant this right. To this end, ICISS developed a “responsibility continuum” (Brunnee & Toope, 2006: 8): Responsibility for protection encompasses the prevention of violent conflicts or massive human rights violations (Responsibility to Prevent), the duty to react militarily (Responsibility to React) and the duty to rebuild peace (Responsibility to Rebuild, ICISS 2001). When the Secretary-General received the report, he spoke of “the most comprehensive and carefully thought-out response we have seen to date” (quoted from Bellamy, 2009: 51). He presented the report to the Chairman of the High-Level Panel on Threats, Challenges and Change. This panel of experts was set up by the UN Secretary-General in November 2003 for his advisory purposes. The High-Level Panel presented its report “A More Secure World: Our Shared Responsibility” in 2004 (A/59/565). In this, it reaffirmed ICISS’s view that R2P should be a comprehensive new norm that encompasses prevention, response to violence and reconstruction as three pillars. Two parallel developments followed. First, the UN Secretary-General included the R2P as an idea in his own report to the General Assembly. Secondly, the first preparatory negotiations for the so-called reform summit began in autumn 2005, when the General Assembly was to discuss the central course set by the United Nations. Above all, the states discussed the controversial relationship between sovereignty and non-intervention (Strauss, 2009: 12): Libya, Pakistan and Venezuela pointed to the history of selective interventions. Egypt, Belarus, India, Iran and Jamaica were generally rather cautious about R2P. To resolve conflicts, mediation took place under the direction of the Vice Secretary-General for Policy Coordination, Bob Orr (Strauss, 2009: 13). On 5 August, Ping presented another draft, which was, however, nullified by a letter from the newly appointed US Ambassador to the UN, John Bolton. As a result, Algeria, Cuba, Egypt, Iran and Venezuela also spoke out in favour of reopening negotiations on the R2P (Strauss, 2009: 14). In order not to jeopardize the summit, Ping then appointed a group of 30 people to work through Bolton’s remarks. This was later replaced by a group of 12. Due to the intensive work on compromises, 24 h before the arrival of the heads of state and government, it was possible to present a draft of the final document that was capable of consensus and which also contained the R2P (Strauss, 2009: 15). This draft was only available in English and the states

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had only a few hours to work through the document before voting on it (Strauss, 2009: 41) and adopting it without a dissenting vote. Thus, while the norm emergence phase of the R2P was already characterized by various changes in the negotiating and design bodies, the change to the General Assembly as the place of negotiation appeared to be particularly helpful. With their broad membership and with regard to the Outcome Document consensus-oriented working methods, many states’ voices could be included in the discussion process, even though the draft text was mainly shaped by the Secretariat (Coleman, 2013: 178ff). However, these characteristics were also a hindrance to a strong R2P norm, as the states were deeply divided and held different positions on R2P (Coleman, 2013: 179). In connection with the fact that the World Summit was, however, a forum in which many different topics were negotiated, the R2P could also be adopted within the negotiation package (Coleman, 2013: 180). With the adoption of the norm in the Summit Outcome document, the R2P norm can be considered as established (Deitelhoff, 2013: 88), because the tipping point where the necessary number of states agreed to the norm had been reached (Deitelhoff, 2013: 88, Finnemore & Sikkink, 1998: 901). However, the Outcome Document anchored a rather narrow understanding of R2P. Furthermore, the Outcome Document also calls on the Security Council to increase the transparency of its work and called for greater involvement of non-members (A/Res/60/1, No. 153–154, Welsh, 2013: 382).

4.2 After the Establishment of R2P: Implementation in the Security Council The Security Council, as the body primarily responsible for maintaining international peace and security in accordance with Article 24 (1) of the UN Charter, is entitled to authorize the use of force in accordance with Article 39 of the UN Charter in conjunction with Article 42 of the UN Charter. The Security Council is a comparatively small body with an exclusive membership. Ten of the 15 members are elected by the General Assembly for two years each according to an informal regional key; five members have a permanent seat. The Security Council works with formal rules and decision-making procedures from 1982, even if these are still referred to as “provisional” (Luck, 2006: 17, S/96/Rev.7). The formal meetings are usually public (Art. 48, S/96/Rev.7). In addition, pursuant to Article 24(3) of the UN Charter, the Security Council submits an annual report on its work to the General Assembly. The Security Council also holds informal meetings in which decisive negotiations take place (Luck, 2006: 17, 123) and which also predominated after the end of the East–West conflict (Eitel, 1999: 129). The lack of transparency of its work was therefore criticized despite formal meetings (Hulton, 2004: 245). At the beginning of the new millennium, the proportion of formal meetings rose slightly (Brühl & Rosert, 2014: 73), due also to demands for greater transparency and greater participation (Luck, 2006: 19). In order to counter

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criticism of the lack of transparency, it also became customary for the President of the Security Council to inform non-members and some of the press about informal consultations (Luck, 2006: 123). The involvement of other member states in its work was also promoted on a selective basis, e.g. through “private meetings” or “wrap-up sessions” in which procedural and substantive aspects of the work of the Security Council were discussed (Hulton, 2004: 245). There is an equal weighting of votes according to Art. 27 UN Charter. However, decisions must be taken by a majority vote. For questions of content, the votes of all permanent members must be included. There is, therefore, no weighting of votes in the narrower sense, but through the existing veto rights, the votes of the permanent members are factually weighted. For an intervention decision, however, the Security Council also needs four votes from the non-permanent members. The fact that this requirement is an important basis of legitimization for Security Council decisions (Kahler, 2011: 35) also shows that narrow membership can give rise to procedural contestation. Additionally, the unequal membership between permanent and non-permanent members may result in hierarchies among them: whereas permanent members have a long institutional memory, those of the elected members are considerably shorter (Ralph & Gifkins, 2017: 636). The Security Council is thus characterized by narrow membership, both formal and informal decision-making procedures and unequal voting modalities. Due to this forum structure, we expect a low level of acceptance of any emergent norm on the part of all addressees, such that this will hinder the process of norm development: the norm will be challenged. In some cases, there are formats that involve non-members more closely in the work of the committee (Security Council Report, 2018). In order to create transparency, the Security Council’s annual report to the General Assembly was accompanied in part by informal briefings, held in advance, for non-members of the Security Council (e.g. 2008 and 2009, Security Council Report, 2010: 16). According to our assumptions, the forum characteristics have a negative effect on the application of the norm and thus on its acceptance by its addressees. After the adoption of R2P in the Outcome Document by the General Assembly, the Security Council applied the norm to some conflicts. In the case of Darfur, the Security Council mentioned R2P in resolutions but did not authorize coercive measures (S/Res/1706; see also deWaal, 2007: 1039). In 2007, the reference to R2P had to be removed from a resolution concerning Darfur (Gifkins, 2016: 160). The conflict in Libya, on the other hand, led for the first time to the imposition of coercive measures in the name of R2P (S/Res/1973). Even though the enforcement of the nofly zone was considered a success for the acceptance of the R2P (Pippan, 2011: 265), the extent to which the regime change subsequently pursued was covered by the original Security Council resolution was controversial (Bellamy & Williams, 2011). Nevertheless, Gifkins noticed a change in the acceptance at least in the use of R2P language which is now accepted practice within the Security Council (Gifkins, 2016: 160f). Between 2011 and 2014, Security Council resolutions showed a “dramatic increase” in the use of R2P language (Gifkins, 2016: 157).

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Other conflicts, such as in Syria, on the other hand, were unable to trigger the authorization of a military mission by the Security Council and therefore caused a debate on the “death” of the R2P (Nuruzzaman, 2013; Weiss, 2014). Others do not see the failure to intervene in Syria as a violation of the norm, but nevertheless classify the behaviour of the international community as having violated the norm, since it did not fulfil its responsibility to protect itself beyond military interventions (Glanville, 2016: 185). The inconsistency of the Security Council’s decisions is also due to its decisionmaking process (Hehir, 2013). In particular, the veto rights of permanent members leave room for “norm antipreneurs” (Bloomfield, 2016). In response to the way the Security Council worked, attempts were first made to limit the right of veto and thus to criticize aspects of procedural implementation. In particular, the “Small Five” group (Costa Rica, Jordan, Liechtenstein, Singapore, Switzerland) launched an initiative after 2005 (Security Council Report, 2018: 5). In May 2012, Russia and China blocked a resolution concerning the war in Syria, which was supported by 13 members of the Security Council (Vilmers, 2018: 335). This in turn led to a debate about the use of the veto (Vilmers, 2018: 335). The “Responsibility not to Veto” was presented as a draft resolution in May 2012 (A/66/L.42/Rev.1), but met with resistance (Brozus, 2013: 22) and was withdrawn. In May 2013, a new group was formed striving for greater transparency within the Security Council (“Accountability, Coherence and Transparency of the Security Council, ACT”). Three years later, they presented a code of conduct for members of the Security Council that is closely linked to the content of the R2P: the code contained an assurance not to vote against an unobjectionable draft resolution in the Security Council that would end or prevent genocide, crimes against humanity or war crimes. 121 member states and two observers have already signed the ACT Code of Conduct as of 8 June 2022.2 Another initiative by France and Mexico would also like to achieve a limitation on the veto. Their declaration is now supported by 104 states and two observer missions as of 13 July 2022.3 Russia, China and the United States did not yet join the initiative and it did not lead to renewed mechanisms or institutional change (Jacob, 2018: 401). This initiative can also be seen as a challenge for the “established spaces” of some of the P5 countries: “Actors within these groups are not homogeneous: there may be internal rivalries regarding the ‘right’ practices to select and with whom to engage. There is a sense of limited available space within UNSC decision-making while the precise arrangement of that space is the outcome of constant ordering and contestation” (Bode, 2018: 298). In this context, this initiative was not only a “consequent challenge to powerful institutional configurations to change the international normative context” but affected the meanings and application of R2P as well (Jacob, 2018: 400).

2

https://www.globalr2p.org/resources/list-of-signatories-to-the-act-code-of-conduct/, rev. 23 February 2023. 3 https://www.globalr2p.org/resources/list-of-supporters-of-the-political-declaration-on-suspen sion-of-veto/, rev. 23 February 2023.

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A second reaction to the application of R2P by the Security Council are General Assembly resolutions reminding the Security Council of its responsibility to act—as in the case of Syria—as well as a procedural component (e.g. Resolution 66/253B, 3 August 2012; Resolution 68/182, 18 December 2013, Glanville, 2016: 196). Thirdly, several states explicitly criticized the conduct of the Security Council. In the 2009 General Assembly debate on the R2P, more than 35 states expressed their frustration with the behaviour of the permanent members of the Security Council (Badescu, 2011: 72). They demanded that the General Assembly play an important role in the implementation of R2P: “[The General Assembly’s (author’s note)] overall role on the issue, specifically as regards oversight over its implementation, must be promoted and strengthened with abiding vigour and vitality. It should never be diminished or diluted. The latter may only make R2P all sound and fury” (A/63/PV.97 Philippines, similar to Egypt, A/63/PV.97, Switzerland A/63/PV.98, South Africa A/63/PV.98, Guinea-Bisseau A/63/PV.98, Lesotho A/63/PV.101). The special role of the General Assembly stems from the legitimacy and representativeness of this forum. Once again, as in the late 1990s, the R2P debate was explicitly linked to the debate on Security Council reform (Guatemala, A/63/PV.97, Cameroon A/63/PV.101, Sudan, A/63/PV.101). The states criticized the lack of transparency and neutrality (Ecuador A/63/PV.98), i.e. aspects that are conditioned by the forum characteristics of informality, veto right and membership. Moreover, the intervention in Libya led to criticism that the Security Council, as soon as it had made an intervention decision, could exert too little influence on the intervening states. This led, inter alia, to Brazil’s proposal of “Responsibility while protecting” (RwP, A/66/151-S/2011/701). In addition to a sequential linking of the three pillars of the R2P according to the Secretary-General’s report in 2009 (A/63/677), stronger monitoring was called for in the interpretation and implementation of the R2P resolutions. In this respect, the debates on the implementation of the R2P are linked to the political dynamics between those states that want to retain their privileges, while other actors try to gain greater access to information and membership (Tourinho et al., 2016: 148). Despite the controversial discussions about the RwP, the debate could decrease ambiguity and stipulate a debate and as a possibility for consensus building (Jacob, 2018: 400). The intervention in Libya revealed also that informal practices like “penholding” have influence additionally to formal decision-making procedures. Informal practices are likewise shaped by forum characteristics like permanent and non-permanent membership. A “penholder” is defined as “a Council member who initiates and chairs the informal process of drafting a resolution” (Ralph & Gifkins, 2017: 647). It is up to the penholder to initiate a draft resolution, otherwise the SC does not work on the agenda item (Ralph & Gifkins, 2017: 647). This could rotate beyond the members of the SC but due to the permanent membership, the penholder is among the “P3”, France, the United Kingdom and the United States. This leads to an “increased dominance over the drafting process” (Ralph & Gifkins, 2017: 647). As a consequence, elected members might not have the same opportunity to shape a debate: “This limits the level of input that non-P3 members can have in negotiations, and particularly marginalizes elected members of the Council. As a consequence of

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this practice, the P3 have been able, with increasing frequency, to set the terms of debate. The penholder practice enables them to frame an issue and lay out a course of action before consulting others” (Ralph & Gifkins, 2017: 647). The aspect of “penholding” affected R2P and the intervention in Libya. Resolution 1973 was drafted by the P3 and they mobilized votes to pass the resolution (Ralph & Gifkins, 2017: 637). But instead of debating the implementation of the resolution within the Security Council and working within a “large international coalition”, they created the “Libyan Contact Group” outside the Security Council. China and Russia were invited but did not attend this group since it went beyond SC: “The P3 could clearly assemble a large international coalition, but it did not give sufficient weight to the opinions of Russia and China (known as the P2) and this was not without consequence for the perpetuation of a collective consciousness based on atrocity prevention” (Ralph & Gifkins, 2017: 641). This indicates the hierarchies within the Security Council due to its unequal membership in terms of permanent and non-permanent. They may lead to informal practices which have an impact on procedural contestation: “The criticism of the manner in which the P3 implemented Resolution 1973 drew intensity from a sense that it was symptomatic of the exclusionary hierarchies that are deeply ingrained within Security Council practices” (Ralph & Gifkins, 2017: 643). In view of the forum structure and the work of the Security Council, we expected a “challenge” for the development and application of the norm. Those whom the norm directly addresses criticized the Security Council’s working methods in dealing with the R2P and attempted to change them by demanding veto restrictions and a stronger role for the General Assembly. This showed the procedural contestation. The forum structure favours a selective application of R2P and this in turn led to a low acceptance of the norm application by the states. Even though the “death” of the R2P was partly ascertained, it became clear that the debates of the norm addressees represent rather an application discourse in which modalities of intervention are discussed (cf. Deitelhoff, 2013).

4.3 Informal Interactive Dialogue and General Assembly The General Assembly is the only UN main body in which all member states are represented. It deliberates on all issues that fall within the UN’s remit. The only exceptions are peace and security cases, which are currently being dealt within the Security Council. As a rule, the General Assembly meets every autumn for a (formal) plenary debate in which each state can be heard and make a speech. Each state has one vote. Decisions are taken in the General Assembly by a simple majority. A twothirds majority is only necessary for questions that directly concern peace and war (“important questions”, UN Charter Art. 19). According to our hypothesis, in view of the broad membership, the formal decision-making procedures and the equal voting modalities, it is to be expected that any implementation by the General Assembly will cause less procedural contestation.

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Since 2009, the Secretary-General’s annual reports have had a significant influence on the R2P debate in the UN. The publication of the earliest report was the occasion for the first official debate of the General Assembly on R2P in 2009. Other debates were held in 2018, 2019, 2021 and 2022. Between 2010 and 2017, Informal Interactive Dialogues of the General Assembly have been held for the publication of the reports. The forum is described as informal, as there is neither an official speech protocol nor a date that appears on the formal agenda of the General Assembly (Schmidt, 2016: 272). The Informal Interactive Dialogue does not adopt resolutions, but only serves the exchange between states. To that extent, there are no voting modalities. Any interested UN member can participate. The number of participating countries are rising. While in 2010 there were only 42 states (Global Center for the Responsibility to Protect, 2010), by 2015 69 states participated (Global Center for the Responsibility to Protect, 2015), which spoke for 89 states. In 2017, 73 states and two observer missions issued statements for a total of 98 states (Global Center for the Responsibility to Protect, 2017). Because the dialogue lasts only one day, each state has only three minutes of speaking time (Schmidt, 2016: 272). In this respect, a deeper exchange on the implementation of R2P or on concrete steps towards implementation is difficult (Bellamy, 2013: 25). According to our hypothesis, an ambiguous result is to be expected with regard to norm acceptance. The broad membership and the informal working processes allow for contradictory results. In the annual discussions it has become clearer from year to year that it is not a question of renegotiating the R2P, but of shaping its implementation: “the majority of governments understand R2P’s scope and definition as that which was endorsed in 2005, thus making the fears of roll-back no longer relevant” (Schmidt, 2016: 273). Gifkins pointed to spillover effects from the General Assembly: she noted that General Assembly debate and informal interactive debates were held since 2009 in response with annual reports from the UN Secretary-General. These debates facilitated shared perceptions of R2P and its implementation (Gifkins, 2016: 152). From 2011 onwards the Security Council entered a phase in which R2P references in Security Council resolutions were an accepted language regarding their frequency and also their “ease” in including this language (Gifkins, 2016: 157). In 2017, for the first time since 2009, the R2P issue was formally put back on the agenda of the General Assembly. There were 113 votes registered for the inclusion, 21 against (with 17 abstentions). Some states emphasized the transparency of the Informal Interactive Dialogue and its constructive handling (only Cuba accused the Forum of non-transparency, Cuba A/72/PV.2). Nevertheless, the central role of the General Assembly as a deliberative and representative organ was emphasized (Ghana A/72/PV.2). Australia, which alongside Ghana was the initiator of the inclusion of R2P on the agenda, stressed that the General Assembly should have the leading role in the further development of R2P: “[I]t is the General Assembly, not the Security Council or the Human Rights Council, that should be leading the way on the responsibility to protect” (Australia A/72/PV.2). Other states preferred to examine the scope (Cuba A/72/PV.2) and the legal status of R2P (Algeria, Iran A/72/PV.2) before an official debate. Finally, there were some states that wanted to continue using the

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Informal Interactive Dialogues format to reach a consensus on content before using the General Assembly forum to force a vote on the implementation of R2P (Syria, Russia, Venezuela A/72/PV.2). Finally, on 25th June and 2nd July 2018, the first meeting of the General Assembly was held explicitly on R2P. Here, too, it was stressed that the General Assembly had the “legal capacity and authority” to define the R2P as well as “tasks of implementation” (Ecuador, A/72/PV.105). It was demanded that the R2P become a standing topic or at least an ongoing dialogue within the General Assembly (Ecuador, A/72/PV.105, similar San Marino, Portugal, Qatar, Kiribati, Latvia A/72/PV.99) and only a few states, such as Myanmar or Russia, disapproved of the General Assembly’s involvement with the R2P issue. Few states highlighted the role of informal debates to generate consensus on R2P and advocated for this forum (Venezuela, Russia, A/72/PV.105), but most of the states highlighted the need to include the topic in a formal General Assembly debate or evaluated this as a progress (e.g. Mauritius, Rwanda, Panama, Bangladesh, Honduras, San Marino, Albania, Gabon, A/72/PV.105). In addition, a demand for a restriction of the veto was frequently mentioned, and both the ACT initiative and the initiatives of France and Mexico were supported, while the need for reform of the Security Council was linked to the discussion on the R2P (e.g. Brazil, Mexico, A/72/PV.99). Criticism was levelled at the inadequate implementation of all three pillars, the lack of implementation of prevention, double standards and selectivity (A/72/PV.99), but also at the fact that the General Assembly had so far dealt little with R2P: “While the Security Council and the Human Rights Council have invoked the responsibility to protect in their discussions and actions, the Assembly has remained mute” (Australia, A/72/PV.99). This procedural contestation over which forum is the right place to implement the R2P, again had a substantive impact. In 2019, the General Assembly discussed again the Responsibility to Protect on the 27th and 28th June. Debates centred around implementing R2P and its preventive dimension on the national and international level in accordance with the Secretary-General’s 2019 Report “Responsibility to protect: lessons learned for prevention” (A/73/898–S/2019/463). States discussed also linking R2P with other topics, e.g. peacekeeping, protection of civilians or women and peace and security (Denmark, Norway, Italy A/73/PV.93) and to mainstream R2P within the United Nations (Croatia, Slovenia A/73/PV.93). The General Assembly as the proper forum to discuss R2P was highlighted several times (e.g. Brazil A/73/PV.93; Ecuador, Nigeria A/73/PV.96). States also emphasized the “democratic structure” of the General Assembly as a forum: “Brazil welcomes the inclusion of R2P on the formal agenda and expresses its support for the formal discussion of this topic in future General Assembly sessions. As the most democratic organ of the United Nations, the Assembly should assert ownership and shape the debate on the protection of the world’s populations from the most serious crimes of international concern” (Brazil, A/73/PV.93). Some states even called for the R2P to be a standing agenda item of the General Assembly (Albania, Bangladesh, Czech Republic, Hungary, Luxembourg, Netherlands A/73/PV.94).

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Critical states stressed the lacking consensus among the states regarding R2P and the inclusion within the General Assembly agenda (e.g. Venezuela A/73/PV.93, Iran A/73/PV.95). The General Assembly was not the “appropriate format to address existing conceptual differences among Member States”, which should be done within the interactive informal debates to gain “consensus” (Iran A/73/PV.95; similar Russia A/73/PV.96). In the aftermath of the debate, R2P was again set as an agenda item for General Assembly debates in 2021 with 92 votes in favour, 15 against and 27 abstentions (A/73/PV.107). Critical states stressed once again the informal interactive dialogue as the appropriate forum to reach consensus and claimed to discuss the topic within the informal interactive dialogue (e.g. Cuba, Iran, Russia, Syria A/73/PV.107). Other states in favour of discussing the item highlighted the forum of the General Assembly instead as “the most representative organ of the United Nations and the best place to address differences and forge consensus” (Finland, A/73/PV.107). In May 2021, the General Assembly adopted a resolution stating that the topic “responsibility to protect and the prevention of genocide, war crimes, ethnic cleansing and crimes against humanity” should be included in the annual agenda of the General Assembly (A/Res/75/277). The resolution also contained the request upon the Secretary-General to report on the topic annually. This first General Assembly resolution since 2009 and was passed with 115 votes in favour, 15 against and 28 abstentions. The General Assembly as a forum for “constructive and transparent” discussion was highlighted by Ecuador (A/75/PV.66). States, who rejected the resolution, pointed to lacking consensus on the item (e.g. Cuba, Egypt, Nicaragua, Russia, A/75/PV.66), and again to the informal formate as the better option (Nicaragua, Russia, A/75/PV.107). In 2022, the R2P was discussed again in the General Assembly. Again questions of voting modalities in the Security Council and the debate concerning veto restraints were connected to the discussion of R2P. In this context, the lack of transparency in the veto use was criticized (e.g. Canada, Georgia, A/76/PV.86). The adoption of General Assembly resolution A/76/262 in April 2022 initiated by Liechtenstein, which entailed that the General Assembly should convene for a formal meeting if a veto is casted in the Security Council and debate on the particular situation, was seen as a positive development within the discussion of restraining the veto in the Security Council (e.g. Hungary, Republic of Korea, A/76/PV.87) and as a possibility for the General Assembly to hold the Security Council accountable if a veto is used (e.g. Singapore, Lebanon, A/76/PV.87). The General Assembly as the “main locus to discuss R2P” was emphasized again (Brazil, similar Ecudaor, A/76/PV.87). The informal interaction dialogue was no longer mentioned as the appropriate forum to discuss R2P. The General Assembly passed 35 resolutions that included references towards R2P since its emergence in 2005.4 The GA also operationalized R2P in some conflicts. In 2016 it created the “International, Impartial and Independent Mechanism” to assist in the investigation and prosecution of persons which committed atrocities in Syria 4

https://www.globalr2p.org/resources/un-general-assembly-resolutions-referencing-r2p-2/, 23 February 2023.

rev.

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(A/71/248). In some cases, following SC deadlock, the GA took measures itself (Schmidt, 2016: 277), e.g. it passed a resolution in a language close to a vetoed draft resolution in the SC (Schmidt, 2016: 278). The GA can also exercise influence on implementing R2P by managing its budget (Schmidt, 2016: 280f). The forum structure had both beneficial and detrimental effects. On the one hand, the constructive and transparent functioning of the forum was praised, and consensus and exchange on some points promoted, but this was questioned by other states.

4.4 Human Rights Council The Human Rights Council was created in 2006 as its predecessor, the Commission of Human Rights, was evaluated as dysfunctional. It is a subsidiary organ of the General Assembly and has 47 members, which are elected by the General Assembly for a period of three years. Membership should be based on equal geographical distributions giving each region a certain number of seats. Additionally, members have to uphold with Human Rights standards as agreed in Resolution 60/251. Voting is also based on the principle of one state one vote. The Human Rights Council is “responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner” (A/Res/60/251). The forum can deal with violations of human rights and make recommendations (A/Res/60/251). One of the most prominent working methods of the Human Rights Council is the “Universal Periodic Review”: this procedure looks at the fulfilment of human rights obligations of each member state based on an “interactive dialogue” (A/Res/60/251). The Human Rights Council is according to our hypothesis a body with limited membership, even though it is not in the same extent exclusive as the Security Council. There are also formal decision-making procedures and equal voting modalities. According to our hypotheses, the limited membership, formal voting procedures and equal voting procedures will cause an ambiguous result in norm acceptance. With regard to the Responsibility to Protect, the Human Rights Council is an almost unnoticed forum which gets less attention. Looking closer to its work and connections with R2P, the body has adopted 71 resolutions containing references to R2P,5 which is more than the General Assembly. More than 30 resolutions focused on the human rights situation in Syria. In 2020 the first resolution with a special focus towards the Responsibility to protect was passed titled “Fifteenth anniversary of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, as enshrined in the World Summit Outcome of 2005”. The resolution contained the decision for a panel discussion on best practices and implementation of R2P before the 47th session of the Human Rights Council. Even this decision for a panel discussion revealed considerable differences among the 5

https://www.globalr2p.org/resources/un-human-rights-council-resolutions-referencing-r2p/, rev. 23 February 2023.

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members of the Human Rights Council. 32 states voted in favour of the resolution, one against and 14 abstained. The abstentions were also caused by the notion that the Human Rights Council was not the appropriate forum for R2P as the statement of India showed: “We are of the view that when deliberations on this concept are undergoing in the relevant UN bodies, the Human Rights Council should not step into the domain which does not belong to it. It’s neither the right UN Forum nor is the appropriate time for selectively bringing out some elements from the 2005 World Summit Outcome”.6 Despite the numerous references towards R2P, the work of the Human Rights Council regarding R2P has been evaluated as non-systematic and missing an “methodological approach” on R2P (Strauss, 2016: 330). Furthermore, the Human Rights Council has not demanded any collective action or “deliberated on formal mechanisms to strengthen accountability of states on R2P responsibilities” (Jacob, 2018: 398). The Human Rights Council has potential within the dimension of fact-finding and evaluation of human rights situations (Strauss, 2016: 329). The need for a stronger linkage between the United Nations Security Council and the Human Rights Council was mentioned several times, especially in the field of early warning and early action (Poland, Republic of Korea, United Kingdom, Germany, Armenia, Uruguay A/73/PV.94). States claimed the advantage of taking into account the results of the Universal Periodic Review. The latter could be used to identify early warning signs for mass atrocities and for prevention efforts (e.g. Republic of Korea, Uruguay, Luxembourg, Netherlands, A/73/PV.94; Argentina A/73/PV.95; Mexico, Slovenia A/73/PV.95). In contrast to all the positive evaluations of a stronger integration of the Human Rights Council, critical states did not openly oppose the Human Rights Council as a forum but highlighted the need to tackle root causes for conflicts such as “extreme poverty” as a preventive measure (e.g. China, A/73/PV.94). According to Cecilia Jacob a “like-minded group” of 52 states is “opposed to bringing R2P into the routine workings of the UNHRC altogether, and who prefer to keep R2P as a ‘New York issue’ only (Jacob, 2018: 399). Discussing and implementing R2P within the human rights bodies “could be used by the international community to justify unnecessary interference in the domestic affairs of states, and would conflate too wide a range of human rights issues with the R2P framework” (Jacob, 2018: 399). According to the forum structure of the Human Rights Council, we expected ambiguous results for the development and application of the norm. There is procedural contestation as there is considerable opposition to discuss R2P within the forum as a discrete agenda topic, notwithstanding the numerous references within already passed resolutions.

6

Statement from the Ambassador of India, 17 July 2020, https://www.pmindiaun.gov.in/pageinfo/ MjI3Mw, rev. 25 April 2021.

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5 Conclusion In our contribution, we have linked assumptions of the regime debate with research on international norms and have thus worked out the significance of institutional negotiation forums for the contestation of a norm. We have illustrated that the forum characteristics influence the discussion about R2P. Our assumption, derived from the theoretical debates, could be illustrated by the example of the R2P that the narrower the membership, the more informal the decision-making procedures and the more unequal the voting modalities, the higher the procedural contestation of the norm. Forum characteristics can influence whether norm addressees have the impression that R2P is only used selectively or that the application discourse remains intransparent. The preparation for the debate in the General Assembly in 2005 led to the adoption of the R2P within the Outcome Document. Due to its broad membership, formal rules and fairly transparent working methods, the outcome of the General Assembly’s debate was considered as legitimate. The implementation of R2P by the Security Council led to procedural contestation. The forum structure hindered the application of R2P: The working methods of the Security Council were perceived as selective and R2P was seen in connection with Security Council reform. Although the R2P standard itself was not called into question, its application modalities were questioned. Debating and implementing R2P within the Human Rights Council was also contested, it was not seen as the appropriate forum in the view of some states. Conversely, within the informal interactive dialogue, states could exchange positions on R2P, but in the long run, the General Assembly was seen as the appropriate forum to generate consensus and consolidate the R2P. This means that institutional factors can also strengthen a norm in the long term. Beyond the implications of our conclusion for research, it seems crucial to ask the normative question of how institutions can cope with procedural contestation regarding this particular norm and to gain protection for people in atrocity situations. In this case, it seems beneficial to have forums with broad, inclusive membership, formal decision-making procedures and equal voting rights. They provide space for gaining consensus and may influence the implementation of a norm itself but even have an effect on less inclusive, less formal fora and their working methods. We consider further research on the importance of forum characteristics to be promising. The significance of individual characteristics, such as those mentioned by Coleman (2013) and Johnston (2001), could be analysed more closely. However, investigations could also look at which combination of forum characteristics influence norm acceptance in R2P as well as in other regional or international forums. Further research could strengthen the causal mechanism between forum characteristics and contestation. Additionally, informal groups and their impact on R2P (Bellamy, 2020) and initiatives for restraining the veto have received less attention (Vilmer, 2018). Their impact on contestation and the link between informal groups and formal forums seems would contribute to research.

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Acknowledgments We would like to thank the editors of this book and the anonymous reviewer for their helpful comments and suggestions. We are also grateful to the participants of the Workshop “Rethinking Responsibility: Military Humanitarianism beyond Western States” of the European Workshop on International Studies in 2016 as well as to Marika Gereke, Julia Leib, Eva Ottendörfer and Samantha Ruppel for their thoughtful comments on previous drafts.

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Anne Peltner (M.A.) is a research fellow and lecturer at the Department of Political Science, Goethe University Frankfurt. She studied in Frankfurt and Cardiff, received a Magister Artium in political science and a diploma in law from the Goethe University. Her research interests include constructivist norm research, humanitarian interventions, international law and the United Nations. In her dissertation she focuses on competing norms. Her publications include “Competing norms and foreign policy change: humanitarian interventions and British foreign

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policy”, in: International Politics 54(6) 2017, 745–759 and “Multinational Enterprises as “Social Actors”—Constructivist Explanations for Corporate Social Responsibility”, in: Global Society 25(2) 2011, 205–226 (with Matthias Hofferberth, Tanja Brühl, Eric Burkart and Marco Fey). Tanja Brühl (Prof. Dr.) is president of the Technical University of Darmstadt, Germany. Before, she had been professor for International Relations at the Department of Political Science at the Goethe University Frankfurt. Her areas of interest include Global Governance, peace and conflict studies and international environmental policy. Her publications include Die UNO und Global Governance (Springer VS, 2014, with Elvira Rosert), or “Global Companies as Social Actors. Constructing Private Business in Global Governance”, in: John Mikler (Hg.): The Handbook of Global Companies (John Wiley & Sons, 2013, 351–370, with Matthias Hofferberth).

R2P: Opening Discursive Spaces for Politics of Protection Sassan Gholiagha

Abstract The chapter makes a twofold argument about R2P: First, R2P has opened a discursive space that enables debates (if not always actions) concerning protecting populations from mass atrocity crimes; second, this discursive space is also helpful to grasp and analyse the development of R2P. The chapter puts forward the concept of a discursive space, which has three dimensions: norms, actors, and discourse. Two key norms are discussed in more detail, the genocide prohibition norm and R2P. The chapter then analyses three situations where mass atrocity crimes either occurred or actors assumed they were about to occur: Rwanda in 1994, Kosovo in 1999, and Libya in 2011. In conducting the analysis, the chapter provides support for the twofold argument. Methodologically the paper relies on an interpretivist methodology and reconstructive approaches to text analysis. It engages with primary sources from the UN and other relevant international organisations, secondary literature, and expert interviews.

1 Introduction: Arguments and Relevant Debates Even though Responsibility to Protect (R2P) has been formulated over 20 years ago, two questions remain at the centre of research and debate. First, does it have a discernible positive effect on how the international community deals with grave humanitarian crises involving mass atrocity crimes?1 Second, how can the non-linear development of R2P be analytically accessed and understood? In engaging with both questions and the debates surrounding them, this chapter makes use of the concept of a discursive space which is constituted through norms, actors, and discourse 1 Mass atrocity crimes here refer to genocide, war crimes, crimes against humanity, and ethnic cleansing.

S. Gholiagha (B) European New School of Digital Studies, European University Viadrina, Frankfurt (Oder), Germany e-mail: [email protected] © Springer Nature Switzerland AG 2023 A. Reichwein and M. Hansel (eds.), Rethinking the Responsibility to Protect, Contributions to International Relations, https://doi.org/10.1007/978-3-031-27412-1_4

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(for different and related uses of the term see Holzscheiter, 2010: 143, 146, 178, 184; Papamichail & Partis-Jennings, 2016; Parks, 2018; Wiener, 2014a). I argue and illustrate with reference to the humanitarian crises in Rwanda 1994, Kosovo 1999, and Libya 2011 that the concept of discursive space is helpful for two things. First, to reconstruct the shift in the discourse around interventions and demonstrate R2P’s positive effect on debates about protective measures. Second, to better understand how R2P has developed over time and the ongoing debates about its development. In doing so, the chapter provides a specific set of answers to the edited volume’s leading questions—as outlined in the edited volume’s introduction—about R2P’s status (empty rhetoric or substantive contribution) and development, i.e. whether it is being challenged or confirmed (see the introduction to this edited volume, for a similar take on R2P’s status see Hunt & Orchard, 2020). I aim to demonstrate how the concept of the discursive space is helpful to engage with both of these major lines of debates in the literature. Let me briefly contextualise both arguments I make within some of the existing literature. The first argument about whether R2P has had a discernible positive effect on protecting populations from mass atrocities remains contentious. In this context, Jennifer Welsh has argued that the debate on R2P’s success or failure is dichotomous with reference to whether practice or language matters more (Welsh, 2019: 56). A clear example of those who point to the need to assess the practice of R2P is Aidan Hehir’s work. In a well-written and detailed study of R2P entitled Hollow Norms and the Responsibility to Protect (Hehir, 2018), he notes that the growing invocation of R2P by various actors does not equal efficacy (Hehir, 2018: 8, 41). Against this critical assessment, others focus on the language dimension of R2P and provide a more favourable assessment of R2P, and in doing so, engages with Hehir’s critique, which I take as being representative of more critical approaches to R2P. I do agree that invocation does not necessarily equal efficacy. However, “speaking R2P” has an effect, as Eli Stamnes has demonstrated: For her reference to R2P means that “[…] a claim is made that an existential threat exists, that emergency measures are required and justified, and consequently, the issue is elevated above normal politics” (Stamnes, 2009: 77, emphasis in original). Elsewhere I have—together with a colleague—shown how diplomats drew on narratives of R2P when they debated appropriate responses to the situation in Libya in early 2011 (Gholiagha & Loges, 2020). Furthermore, Jess Gifkins has pointed out that reference to R2P is meaningful and has become “settled language”, as Gifkins (2016: 161) notes. Finally, proponents of R2P have aimed to demonstrate the positive effects of R2P on a more general level (Bellamy & McLoughlin, 2018). In terms of the second argument the chapter makes, regarding the development of R2P following the intervention in Libya after the UN Security Council authorised the use of force (UNSC, 2011c), I aim to demonstrate how the concept of the discursive space can be helpful for scholars to make sense of the developments post-Libya regarding its operationalisation in the context of UN mandates under Chapter VII. Without providing a detailed discussion of the 2011 Libya intervention, a quick assessment based on existing literature is both possible and necessary. (see Gholiagha (2022) for a more detailed discussion of R2P).

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Scholars have disagreed right from the outset whether R2P played a decisive role in the UN Security Council’s decision to authorise the use of force (Bellamy, 2011b: 263; Gholiagha & Loges, 2020; Weiss, 2011) or whether it did not play a role (Hehir, 2016; Kersten, 2015; Kurtz & Rotmann, 2016: 18; Shesterinina, 2016: 812). Following the intervention and the subsequent regime change has led to additional debates about R2P’s role in Libya (Bellamy & McLoughlin, 2018, Chapter five; Glanville, 2014: 162; Malito, 2019; Pattison, 2011: 273; Scheid, 2014: 23–24). Irrespective of how one assesses R2P’s role in the decision of the UNSC or the intervention, there is little doubt that R2P was a central focus of debates following the intervention. Critique was specially raised by Brazil, Russia, India, China, and South Africa—more commonly known as BRICS (de Waal, 2013: 368; Job, 2016: 902–903; Shesterinina, 2016: 812). Most notably, two states suggested developments of R2P based on their critique. China suggested the notion of Responsible Protection (RP), and Brazil put forward the idea of Responsibility while Protecting (RwP) (Akbarzadeh & Saba, 2019: 550; Bellamy & McLoughlin, 2018: 151–161; Dalhaus, 2015: 217; Hunt, 2016: 882; Job, 2016: 903–904). I return to these developments below to demonstrate how the concept of discursive space allows us to include these debates as well. The remainder of the paper is structured as follows. Section 2 develops the concept of a discursive space, drawing on both discourse studies and norms research. More specifically, I discuss norms, actors, and discourse as three dimensions of discursive space. I provide an overview of the two central norms I look at the genocide prohibition and R2P. Section 3 is concerned with the methodological approach of the chapter, focusing on the specific research method and questions of case selection and case study design. Section 4 analyses the discursive space in place during the debates on Rwanda in 1994, Kosovo in 1999, and Libya in 2011. Section 5 closes this paper by presenting the chapter’s results in terms of the two arguments and a brief outlook on future research.

2 Discursive Spaces—As a Concept and as an Analytical Framework In this section, I develop the concept of discursive space, which also serves as an analytical framework when studying different instances of intervention. I discuss three building blocks: norms, actors, and discourse. Before I discuss those in the following, a caveat is in order. All three concepts have received much attention in IR literature and beyond. I do not have the space to retrace those debates and see no need to repeat them here. The literature I build upon in the following has done so already in an excellent manner. In the remainder of the section, I then discuss the genocide prohibition norm and R2P as the two central norms with which the chapter engages. I close the section with a presentation of the concept of discursive space as

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employed in the chapter and briefly discuss the limits of discourse in relation to the prevention of mass atrocity crimes.

2.1 Norms, Actors, and Discourse Norms: Constructivist norms research by now has a long history, with a variety of branches, versions, or waves (Adler, 1997; Deitelhoff & Zimmermann, 2020; Fierke, 2010; Guzzini, 2000; Hopf, 1998; Kratochwil, 1984, 1989; Kratochwil & Ruggie, 1986; Onuf, 1989; Pratt, 2019; Wiener, 2004, 2009, 2018). While norms classically have been understood as a “standard of appropriate behavior for an actor with a given identity” (Finnemore & Sikkink, 1998: 891), critical constructivist have rightly demonstrated that norms are inherently contested (Wiener, 2009) and has provided an in-depth analysis of the constitution and contestation of norms (Deitelhoff & Zimmermann, 2020; Wiener, 2018). Furthermore, scholars such as Carla Winston have pointed to values as underlying norms and that norms are related to a specific problem (Winston, 2018). I, therefore, understand norms as value-based collective expectations for the appropriate behaviour of actors in specific types of situations (Gholiagha et al., 2020; Holzscheiter et al., 2022; Winston, 2018).2 This reference to actors raises the question of how to conceptualise actors and their agency. The following part deals with this question. Actors: Norms do not possess agency, even though they are occasionally discussed as if they would (Bucher, 2014). Therefore, analysing how norms matter in global politics requires noting the actors that refer to those norms in debates. Such an approach constitutes a turn to what has been called an “agentic” or “agency-oriented” constructivism (Sikkink, 2011a, 2011b; Wiener, 2018; Zimmermann et al., 2017). Actors are here conceptualised as entities with both the ability and at least potential capacity to act in a specific situation. As they possess agency, they always can act differently (Jackson, 2006: 267; Sikkink, 2011a; Wight, 2006). The relevant actors in the context of R2P generally and in the specific case discussed below are the UN Security Council, the UN General Assembly, and regional actors. As the situations concerns conflicts within states, states are, of course, also relevant actors. Discourse: Discourse has been discussed in-depth within IR Theory (Holzscheiter, 2014; Milliken, 1999, 2001; Neumann, 2008). I understand discourse as “the space where human beings make sense of the material world, where they attach meaning to the world and where representations of the world become manifest” (Holzscheiter, 2014: 144). While a distinction can be drawn between structure-based approaches and actor-based approaches to discourse (Holzscheiter, 2010: 30–31), these approaches can also be fruitfully combined (Holzscheiter, 2010, 2014). For my conceptualising of discursive space, both structural aspects and aspects of agency matter, as will become apparent below in the discussion of the concept of discursive space. Drawing on work 2

This definition was developed together with Anna Holzscheiter and Andrea Liese as part of an collaborative research project—COLLISIONS—funded by the German Research Foundation. The definition used here is a slightly altered version taken from the two co-authored publications I cite above.

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by Fernando Nuñez-Mietz (2018) on legitimation discourses, I use his distinction of moral, political, and legal discourse (Nuñez-Mietz, 2018: 732–733) and assume that an actor will draw on one of those discourses predominantly. The following two sections briefly discuss the two central norms the chapter engages with: genocide prohibition and R2P.

2.2 Genocide Prohibition The prohibition against genocide developed out of the horrific crimes of Nazi Germany against the Jews during the Holocaust. Its history and its development are closely linked to the life and work of the polish lawyer Rafael Lemkin, who was a Polish-Jewish refugee. He invented the term genocide “because he was not satisfied with any other term to describe the precise phenomenon […]” (Smith, 2010: 10). I will not go further into the fascinating history of the genocide convention and the many debates about it, as others have done so already (Sands, 2016; Schabas, 2009; Smith, 2010). What is of relevance here is two provide a discussion of the genocide prohibition as a norm. The remainder of this section does this. As Smith argues—and I follow her in this assessment—“there are actually two norms against genocide: a legal one and a social one” (Smith, 2010: 6). The legal one can be found in the Genocide Convention. The 1948 (entry into force 1951) Genocide Convention obliges parties to the Convention to prevent and punish genocide (Convention on the Prevention and Punishment of the Crime of Genocide, 1948: §1). The social norm, as Smith outlines, is broader in scope, demands, and definition and is “espoused by cosmopolitan theorists, but is also widely shared by commentators, journalists, NGOs, and the like […]” (Smith, 2010: 6). I focus my analysis on the legal norm. Using Winston’s norm components of “a problem, a value, and a behaviour” (Winston, 2018: 1), we can describe the genocide prohibition as a norm in the following way. Based on the value of humanity as well as other values enshrined in the UN Charter (Convention on the Prevention and Punishment of the Crime of Genocide, 1948, Preamble), the convention deals with the problematic situation in which someone aims to commit acts “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” (Convention on the Prevention and Punishment of the Crime of Genocide, 1948: §2). Moreover, the norm asks actors to behave in a specific way, should such acts occur, prevent them, and punish those who committed the acts (Convention on the Prevention and Punishment of the Crime of Genocide, 1948: §1). Importantly, the Convention is only ratified by 151 states,3 and it was not until 2006 that the International Court of Justice declared §1 of the Genocide Convention ius cogens (Schabas, 2009: 4). This means—to foreshadow the analysis on Rwanda 3

Shabas notes that the reason for the relatively low number of ratification may have to do with concerns about head of state immunity when it comes extradition or prosecution (Schabas, 2009: 3).

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below—that by the time of the Rwandan genocide, the norm was not considered ius cogens or universally codified. However, as the analysis will demonstrate, actors felt so strongly bound by it that they did not refer to genocide out of fear that this would create binding obligations. In this context, Robert A. Pape has described the genocide prohibition as a catch-22, in that it sets “the bar for intervention so high— unmistakable evidence of clear intent to destroy a national, ethnic, racial, or religious group—the norm against genocide puts the international community in a catch-22: by the time it is clear that a genocide is occurring, it is often too late to stop the killing” (Pape, 2012: 42).4

2.3 R2P There is no need to reiterate the debates over R2P that has produced many scholarly works. Scholars have provided literature reviews and assessments of the state of the art (Gholiagha, 2014; Kurtz & Rotmann, 2016; Loges, 2013: 113–217; Thakur, 2016). There is also excellent theoretical and empirical analysis available from both advocates and critics (Bellamy, 2011a; Hehir, 2012, 2018). However, how R2P should be analytically grasped remains contested (Brunnée & Toope, 2010: 192). R2P has been described as a legal concept (Arbour, 2008), a political promise (Bellamy & Reike, 2010: 269), a new norm (Deitelhoff & Zimmermann, 2013), as a concept (Orford, 2011: 212), as an organising principle (Wiener, 2018: 62), as part of a human security regime (Bellamy, 2016), as a “hollow norm” (Hehir, 2018) and as a regime (Orchard, 2020) The way R2P is conceptualised matters for what questions scholars can ask about R2P and what answers their research provides.Some literature, which this chapter prescribes, has argued that R2P consists of different parts and should not be seen as a singular object (Bellamy, 2010; Welsh, 2013), thereby allowing for a more precise analysis of R2P. Following Jennifer Welsh, I understand R2P as a “complex norm”. R2P in its three-pillar form thus represents what I call a ‘complex’ norm, containing more than one prescription. This complex structure also creates a situation in which the breach of one of the components of R2P (failure on the part of a national government to protect its population) is meant to act as a trigger for fulfilment of another component (the international community’s remedial role in protecting). (Welsh, 2013: 384, emphasis in original)

A reading of R2P as a complex norm, such as presented by Welsh in the above quotation, is rooted in a constructivist understanding of norms. While constructivist norms research has developed over the last four decades (Finnemore, 1996; Finnemore & 4

In the very same paper, Pape compares the genocide prohibition norm to R2P, arguing that the threshold to intervene under R2P is too low. Without wanting to go into detail, Pape unfortunately confuses R2P in its 2005 form with the 2001 ICISS Report conceptualisation. He also argues that “R2P obligates the international community to intervene in almost any instance of human suffering, including natural disasters, disease, failed states, and collateral violence to civilians during civil wars” (Pape, 2012: 51). This of course is simply not true, as R2P only applies to genocide, war crimes, crimes against humanity, and ethnic cleansing (United Nations, 2005: §§138, 139).

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Sikkink, 1998; Kratochwil, 1984, 1989; Onuf, 1989; Wiener, 2004, 2014b) in various forms, it is the newer, more critical constructivist approach is particularly helpful for studying R2P, as I have argued elsewhere (Gholiagha, 2015b). This approach understands norms as inherently contested (Wiener, 2009) and provides a non-linear and non-teleological understanding of norm development, application, and interpretation (Gholiagha et al., 2021; Hofius et al., 2014; Wiener, 2018). Such a conceptual and theoretical framework has provided valuable insights into how R2P works (Deitelhoff & Zimmermann, 2020; Labonte, 2016; Welsh, 2013, 2019). Following Winston’s conception of norms (Winston, 2018), R2P as a norm then prescribes appropriate behaviour of actors for situations of genocide, war crimes, crimes against humanity, and ethnic cleansing. It requires states and governments that they have to protect their population from these crimes in such a situation. If these crimes occur and the state in whose territory they occur is “manifestly failing”, the international community, through the UN Security Council, must do everything it can to stop the crimes (United Nations, 2005: §§138 and 139). Important to note is that R2P was not to “create additional legal obligations” for states (Welsh, 2019: 54).5 I now present the concept of the discursive space and briefly discuss the limits of discourse.

3 Discursive Spaces and the Limit of Discourse I understand discursive spaces as spaces in which specific discourses take place that enable certain actions. Discursive spaces are spaces in which individual human beings can attach meaning to the actions of other individual human beings. Thereby, intersubjective agreement on issues and events becomes possible. In an Arendtian sense, these are spaces of appearance (Arendt, 1998 [1958]: 198–199) in which individual human beings appear. These spaces are both constituted by and constitutive of the socially constructed reality in which we live (Arendt, 1998 [1958]: 208; Berger & Luckmann, 1967 [1966]; Onuf, 1989). For actors to intersubjectively agree on the meaning of a specific situation and the appropriate behaviour in that situation, they rely on norms (March & Olsen, 2009). The relationship between norms and discursive spaces is thus one of coconstitutiveness. Actors refer to norms in order to justify their behaviour as appropriate. At the same time, the discursive space created through the interaction of these actors affects which norms actors can convincingly refer to, i.e. norms other actors also see as applicable to the situation at hand. To give an example: Within the Security Council, members must agree that a specific situation constitutes a threat to peace and security to be able to legitimate Chapter VII measures. In doing so, usually by 5

A brief note on the relationship between the two norms is important here: Genocide is one of the four crimes which are meant to trigger R2P. However, here I am not interested in the specific crimes (genocide in the Genocide Convention and genocide, war crimes, crimes against humanity, and ethnic cleansing in R2P situations). What interests me is how a discursive space in which actors can draw on the genocide convention differs from one where they can draw on R2P.

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speech acts, which then materialise in the formulation “…constitutes a threat to international peace and security”, actors agree that the given situation is one in which specific norms are applicable, such as those that allow the use of force. Another example is when actors agree that a specific situation constitutes an armed conflict, in which case norms of International Humanitarian Law apply. What happens when actors disagree in the assessment of such a situation can be seen in the debates about the legality of US drone strikes (Brooks, 2014; Gholiagha, 2015a; Gregory, 2015). Image 1 presents how a discursive space is constituted through the interaction of (at least) two actors, the norms they draw upon in their interaction with each other (Arendt, 1998 [1958]: 198–199), and the influence of the dominant discourse— political, moral, or legal—on the discursive space (Nuñez-Mietz, 2018). It is, of course, a somewhat schematic sketch of something that, in reality, probably looks much more complex. Here it is important to point out one explicit limitation. While I argue that the discursive space provides an actor with a space to act and justify their actions regarding the relevant discourse and norms, there is no automatism involved here. To briefly return to Hehir’s point on R2P that invocation does not equal efficacy (Hehir, 2018: 8): This may be true, but this does not mean that invoking R2P does nothing. There is no “cheap talk” (Risse-Kappen, 1995), and hence, invoking R2P affects the properties of the discursive space (for related arguments see Gifkins, 2016: 161; Orchard, 2020: 37). How actors act within this space depends on additional conditions. In the context of mass atrocity crimes prevention, two conditions can be identified, which we often find as explanatory factors in discussions and scholarly analysis about the success or failure of interventions: existence or lack of political will and the question of whether an actor has the capability or capacity to act in a manner to prevent ongoing mass atrocities (Case Concerning Application of the Convention

Image 1 The discursive space. Source Author

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on the Prevention and Punishment of the Crime of Genocide, 26 February, 2007; Orford, 2011: 41; Schabas, 2009: 521; Wheeler, 2002: 230, 270). While capacity is primarily a question of resources and more actors carrying the weight of necessary intervention, political will is more complex and, in fact, sits before the issue of capacity.6 Political will does connect to questions of domestic politics of the involved states. While an analysis of these politics is outside of the chapter’s scope, one could assume that achieving sufficient political will on the international level requires a discursive space in the domestic context, leading to the manifestation of sufficient political will. Other factors may be the reaction of like-minded states, the decision of regional organisations relevant to the state in question, the pressure of civil society or transnational advocacy networks, or citizens, e.g. through protests, petitions, or other means of participation. Finally, media discourse may push governments towards the decision to support an intervention. And of course, all these factors can also push in the opposite direction, i.e. the rejection of a planned intervention.

4 Methodology, Methods, and Case Selection As I want to make sense of discourse and look at the text (both written text and speech that has left a material trace), I employ an interpretivist methodology (Lynch, 2014; Yanow & Schwartz-Shea, 2006) that takes serious language and meaning. I use a reconstructive approach to text analysis (Kruse, 2014). I look for norms or references to norms and dominant discourses in documents of the relevant actors and within the relevant fora. I closely read the relevant passages in order to identify references to norms and dominant discourses. References to norms can be made by directly referring to the norms or, more likely, using language that refers to the appropriate behaviour prescribed by the norm(s) in question. References to dominant discourses can be identified by the kind of arguments and justifications actors give: legal, political, or moral (Nuñez-Mietz, 2018). To recall, the paper makes a twofold argument. The first argument I put forward in the paper is that R2P changed the quality of the discourse space and opened it up. I provide evidence for this argument by comparing three instances in which the international community debated the appropriate behaviour in situations in which mass atrocities occurred or where there was a risk that they would occur. Thus, I focus on the way actors referred to available norms to answer the question of what the appropriate behaviour was. I have chosen three cases for this analysis: Rwanda 1994, Kosovo 1999, and Libya 2011. In all three cases, mass atrocities either took place, or actors identified a high risk for mass atrocities to occur. Thus, the cases differ concerning the norms available to actors, the constellation of actors, and the dominant discourses. This variation is helpful as it means that the three discursive spaces vary. Hence, different outcomes should be expected to demonstrate the feasibility of the 6

I am thankful to the anonymous reviewer who suggested to develop the discussion about political will further.

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discursive space concept and the validity of my argument about the effect of R2P. The second argument the paper makes is that the discursive space also helps to better understand the development of R2P. To this end, the analysis of the 2011 Libya intervention is especially helpful. I will also discuss both arguments in the concluding section of the chapter. In the following, I map the discursive space in all three cases by looking at the three dimensions of the discursive space I identified in Section 2: norms, actors, and discourse. Then, I assess how the interplay between them created in each case a specific discursive space in which actors debated. To this end, I closely read key UN Security Council Resolutions and relevant documents of other actors for each case. I also assess the existing secondary literature to look for discussions of norms, actors, and discourse in discussions of those cases. Finally, in the Libyan case, I also rely on semi-structured expert interviews with diplomats, UN staff, and NGO representatives in New York in 2014.

5 Case Studies: Rwanda, Kosovo, and Libya This section provides empirical evidence for the chapter’s argument that R2P broadened the discursive space. To this end, I discuss three situations in which mass atrocities either occurred (Rwanda) or were seen by relevant actors to be imminent (Kosovo and Libya) to map the discursive space in each situation.

5.1 Rwanda 1994 In the Rwandan genocide, which took place nearly 30 years ago, Hutu militias killed within 100 days 800,000 civilians, primarily Tutsi but also moderate Hutu (Smith, 2010: 142–187). A lot has been written on the international community’s failure and the possibility of acting to prevent genocide (Orend, 2014: 327; Smith, 2010: 179; Wheeler, 2002: 209–219). In the following, I will analyse the little official language that came from the UN during the genocide in the form of presidential statements and two UN Security Council Resolutions. In the two presidential statements, we find the condemnation of the acts in Rwanda, with terms like “massacre” and “violence”. Most interestingly is the reference to the prohibition of genocide. However, all of this is presented in terms of individual responsibility and the fact that those committing crimes ought to be punished: In this context, the Security Council recalls that the killing of members of an ethnic group with the intention of destroying such a group in whole or in part constitutes a crime punishable under international law. (President of the Security Council, 1994)

What we see in this quote is a clear reference to the normative prescription enshrined in the norm of genocide prohibition, albeit only referring to the fact that genocide is

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a punishable offence under international law. Thus, while the norm is not explicitly mentioned, the content of the quote refers to the substantive part of the norm. In terms of behaviour, the UN Security Council passed two resolutions, 918 and 925, on 17th May 1994 and 8th June 1994, respectively (UNSC, 1994a, 1994b), authorising United Nations Assistance Mission in Rwanda—UNAMIR II, but this was too late in terms of preventing the genocide and authorising the French Operation Turquoise, whose purpose it was to bridge the gap before the full deployment of UNAMIR II, had little success either (Smith, 2010: 173–176; Wheeler, 2002: 227– 335). In terms of reference to the genocide prohibition norm, Resolution 918 recalls that genocide is a crime by stating the definition of genocide without using the term “genocide” (UNSC, 1994a). Resolution 925 refers at least to “acts of genocide” (UNSC, 1994b). Resolutions condemn violence against civilians, some basic protective measures are authorised, and there are repetitive calls to end violence, agree on a cease-fire, and ensure humanitarian aid. However, no reference is made to the genocide prohibition norm beyond the already mentioned ones. Based on the close reading of those two resolutions and the analysis provided in the secondary literature on the genocide in Rwanda (Smith, 2010: 154–167; Wheeler, 2002: 208– 241), the following Table 1 provides an overview of the three components of the discursive space for the debate on Rwanda. The discursive space that actors constituted in the debates in the Security Council was thus somewhat limited. Actors debated, and ultimately could not agree, whether the situation constituted genocide or should be called genocide, not least for fears of having a legal obligation to act under the Genocide Convention. In terms of political will, Rwanda was a clear case where despite the possibility to act—in this case, under the Genocide Convention—actors were not willing to do so. The French operation showed that this was not a lack of capacity. Also, already present UN troops on the grounds could have given a more robust mandate, going beyond self-defence and limited protection measures. In a nutshell, the limited discursive space that existed was not used by actors to act. A lack of political will and a lack of alternative norms to refer to also played into this. Table 1 Discursive space in debate on Rwanda Dimension of discursive space

Description

Norms

Genocide Prohibition Norm

Actors

UN Security Council

Discourse

Dominantly legal, concerned with the question of whether the situation in Rwanda constituted genocide

Source Author

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5.2 Kosovo 1999 Nearly twenty-five years after the NATO intervention in Kosovo, they remain a crucial point in the debates and the analysis of appropriate responses to mass atrocities. Following the humanitarian catastrophes, the mass atrocities, and the failure of the international community in Somalia, Rwanda, and Srebrenica, the question of how the international community ought to react was once again on the table (Brock, 1999: 323). Prima facie actors had no additional or alternative legally codified norms to refer to in the debates about Kosovo in 1999 than they had in the previous events. However, there were ongoing debates about the right of humanitarian interventions before and after Kosovo (Finnemore, 1996; Habermas, 1999; Wheeler, 2000). It remains unclear whether the events that took place between 1998 and 1999 did ever amount to genocide (Lang, 2009; 196; Smith, 2010: 188–202), but after the previous failures to prevent mass atrocities, especially in Rwanda and Srebrenica, many actors wanted to make sure that at least this time history would not repeat itself. There were attempts to resolve the conflict peacefully, but after negotiations with Serbia failed, the UN Security Council passed a chapter VII resolution declaring the situation a “threat to peace and security in the region” in Resolution 1199 (UNSC, 1998) but did not authorise the use of force. Nevertheless, NATO opted for the use of—in this case—unauthorised use of force (NATO, 1999). While NATO did not bring forward any legal arguments as such, but based its justifications in political and moral terms (Gray, 2008: 40), a detailed analysis of Nuñez-Mietz (2018) demonstrates that the arguments brought forward and the procedural steps taken can be read as part of a legalised discourse, even though a moral discourse would have been more feasible (Nuñez-Mietz, 2018: 752). In a way, the choice of discourse locked NATO into pursuing a relatively narrow argumentative route. Notably, in this context, a UN Security Council Resolution draft condemning NATO was rejected, with 12 members of the Council (including the P3) casting their votes against the draft. Only Russia, China, and Namibia voted in favour (Wheeler, 2004/2006: 44). Again, not wanting to discuss potential merits and downsides of NATO’s actions—suffice to say the reactions to NATO’s intervention and the analysis provided in scholarly work is ambivalent (Byers & Chesterman, 2003: 184; Farer, 2003: 53–89, 70; Gray, 2008: 68)—Kosovo demonstrated an attempt of actors to widen the discursive space with reference to political and moral principles, e.g. condemning violence and asking for a political solution in the UN Security Council Resolution 1199 (UNSC, 1998). Based on the close reading of Resolution 1199 and the analysis provided in the secondary literature on the situation in Kosovo (Nuñez-Mietz, 2018; Smith, 2010; Wheeler, 2000), the following Table 2 provides an overview of the three components of the discursive space for the debate on Kosovo. The discursive space in which actors deliberated the appropriate response differed substantially from the one in Rwanda. Although no new legally codified norms existed, a debate about the right to intervene was taking place. The discourse was couched within legal language, embedding NATO’s moral and political arguments to justify its actions. We also see a different structure of actors, given that NATO

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Table 2 Discursive space in debate on Kosovo Dimension of discursive space

Description

Norms

Moral norms of humanitarian intervention but couched within a legal discourse

Actors

UN Security Council members NATO

Discourse

Dominantly moral and political by those who defended the decision. Legal discourse by those who criticised the intervention

Source Author

acted outside of the UN Security Council at least during the actual use of force. In a nutshell, the discursive space differed regarding all three dimensions and hence gave actors a different space in which they could act.7

5.3 Libya 20118 The developments in Libya 2011 and the subsequent NATO intervention, authorised by UN Security Council Resolution 1973 (UNSC, 2011c), have been analysed indepth in the existing literature (e.g. Bellamy, 2011b; Gifkins, 2016; Pattison, 2011). Contrary to the slow movement by the UN Security Council when discussing the situation in Rwanda, this time, the Council moved quickly. Several excellent analyses are available on the topic of how exactly these negotiations took place and how it was possible for the Security Council to move forward so quickly (Adler-Nissen & Pouliot, 2014; Bellamy, 2011b; Seibel, 2013; Welsh, 2011). The situation in Libya has been described as a “perfect storm” (Peters, 2015: 161, my translation). Moreover, as Thomas Weiss noted, “Libya was unusual: the legal, moral, and political/military dimensions all merged to create the perfect conditions for intervention under the Responsibility to Protect” (Weiss, 2014: 13).9 For the first time, R2P was applied in a direct relationship with the use of force by the UN Security Council acting under Chapter VII (Paris, 2014: 580).10 Like the previous case studies, the following analysis focuses on the dimensions of the discursive space constituted by the actors and thus available to them to act upon.

7

This is not to be read as a statement on whether NATO’s action were legal or not. This section draws substantively on work published elsewhere Gholiagha (2015b, 2022) 9 It was however partly a carefully orchestrated storm. Leaked documents reveal a rather active role by France and the USA in choosing who would be then recognized as the legitimate representatives of the Libyan government (Pecquet, 2015). 10 As one interview partner remarked this somewhat refutes the argument that R2P was to serve as a Trojan horse for western imperialism (Interview A6: 180–182). 8

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In terms of actors, one of the most striking differences between Libya, on the one hand, and Rwanda and Kosovo, on the other hand, is the change in the actor constellation. Before the UN Security Council issued the decisive resolution authorising the use of force (UNSC, 2011c), three key regional actors supported protective measures using force, e.g. a no-fly zone: The Organisation of Islamic Cooperation (Organisation of Islamic Cooperation, 2011), the African Union (African Union Peace & Security Council, 2011), and the Arab League (Arab League, 2011). In terms of norms, the UNSC Resolution 1973, passed on 17th March 2011, makes explicit references to R2P (UNSC, 2011a, 2011c). In addition, the predecessor Resolution 1970 referred the situation in Libya to the ICC, thereby making clear that the UN Security Council at least assumed that the crime committed in Libya amounted to mass atrocity crimes for which the ICC was the competent court.11 However, the discourse was dominated more strongly by political and moral reasoning, with only those states abstaining from the resolution raising concerns whether the use of force was appropriate at this time and whether all peaceful measures were exhausted (UNSC, 2011a). Acting upon the Resolution, NATO engaged in military action against Libyan government forces, resulting in a turn of the tide for the opposition forces, the death of Gaddafi, and ultimately regime change (Adler-Nissen & Pouliot, 2014: 908; Bellamy, 2014: 166; Brunnée & Toope, 2014: 15; Weiss, 2014: 8). The analysis of the UN Security Council deliberations on Libya illustrates how references to R2P, paired with condemnations of violence against innocent civilians, led to a discursive space in which measures to prevent future mass atrocities and react to ongoing ones, in this case, a no-fly zone, and ultimately the authorisation of the use of force, was made possible.12 However, there are also critical voices regarding the success of NATO’s operation “Unified Protector” (Conley-Zilkic, 2014: 442; Paris, 2014: 585). Matteo Capasso notes the killing of Ghaddafi loyalists, who were not seen as civilians (Capasso, 2014: 393). The killing of those loyalists is outlined in the Human Rights Council report from 8 March 2012 (Human Rights Council, 2012). This killing takes place within the same discursive spaces, but those loyalists did not receive protection within it. That they did not receive protection is not to say they should not have been protected. Instead, R2P focused on certain individuals and not others, a distinction embedded into R2P that Lauren Wilcox has rightly pointed out. Wilcox distinguished between subjects to be protected, subjects to do the protection, and subjects who need to be killed to save others (Wilcox, 2015: 174). It is this last category that those killed fall into. The following Table 3 provides an overview of the discursive space that was established in the debate on Libya. As it becomes evident from both the discussion and the table, the discursive space in Libya differed considerably compared to the discursive spaces in the debates on 11

For an analysis of the norm linkage between R2P and criminalisation of war crimes see the work by Caroline Fehl (2018). 12 Elsewhere Gholiagha (2015b) I have argued that Libya can also be explained with reference to the social construction of individuals as innocent and worthy of protection—while a different focus these explanations do not contradict each other but rather can be read together. Of course others have offered different explanations. Following the notion of a mosaic Diez and Wiener (2009), I believe that multiple explanation can exist side by side.

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Table 3 Discursive space in debate on Libya Dimension of discursive space

Description

Norms

R2P Criminalisation of War Crimes

Actors

UN Security Council NATO OIC AU AL ICC

Discourse

Dominantly moral and political by those who defended the decision. Legal discourse by those who criticised the intervention

Source Author

Rwanda and Kosovo in terms of norms, actors, and discourse. As I have argued, such an analysis helps us to understand how actors were able to act in a manner they had not been able to act in previous situations of mass atrocities. In this situation, both political will and actors with the capacity to act existed in the form of NATO. Regarding the chapter’s second argument—that R2Ps development can also be grasped by looking at the discursive space surrounding the situation in Libya in early 2011—there are several noteworthy changes in the discursive space compared to those concerning Rwanda and Kosovo. Apart from the obvious fact that there is no reference to R2P, we also see references to the Rome Statute and the legal prohibition of R2P-related crimes, most prominently in UNSC Resolution 1970 (UNSC, 2011b). We also see a proliferation of actors and a differentiation in the discourses those actors referred to. The debates surrounding the Chinese suggestion of Responsible Protection and the Brazilian concept of Responsibility while Protecting both illustrate this observation. In both cases, additional norms were introduced into the existing discourse, which engaged critically but productively with R2P and the question of how protective measures should be operationalised. These developments, graspable through the concept of the discursive space, may explain the contestation and nonlinear development of R2P insofar it can be expected that with more actors and their different perceptions of the situation and different answers to the question of whether and if so how R2P ought to be applied in that specific situation, non-linear development after the intervention and ongoing contestation becomes more likely.

6 Conclusion In this chapter, I aimed to illustrate a twofold argument concerning R2P. First, R2P opened a discursive space allowing debates about protective measures not possible before. It did so by allowing actors to constitute a discursive space in which such

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debates were possible. And second that the concept of discursive space as presented in this chapter is also helpful to understand—alongside other conditions—the nonlinear development of R2P and its ongoing contestation. To this end, the paper provided a conceptualisation of the discursive space, identifying three dimensions: norms, actors, and discourse. Section 3 outlined the methodological framework and research methods. The analysis of three cases of mass atrocity situations in Section 4, Rwanda 1994, Kosovo 1999, and Libya 2011, demonstrated the applicability of the concept of discursive space and its feasibility in understanding different reactions to situations of mass atrocities. A limitation of the degree to which the concept and the analysis were able to provide a complete understanding of the situation was introduced with reference to political will and the capacity to act, both of which have to be in place to turn the potential for action provided by a discursive space into actual action. Furthermore, with the introduction of R2P, actors had a new norm to refer to in debates, thereby changing the discursive space in which they debated and within which they acted. The comparison revealed that the reference to R2P allowed actors to debate potential means of protection more openly than it was possible in 1994 or 1999, where the normative reference point was the Genocide Convention and the prohibition of genocide and not well-defined and strongly contested norms of humanitarian interventions applicable in situations of mass atrocities. Moreover, references to R2P within a discourse allows discussing a wider range of actions and pathways to fulfil the responsibility to protect, by differentiating within discourses between the responsibilities of the state in which grave human rights violations take place, the responsibility of the international community, and the rights of those who ought to be protected, Instead of discussing whether the crimes committed in a country suffice to do something, R2P facilitates a much broader discourse about the responsibilities of different actors. However, the existence of a discursive space must be combined with both political will and the capacity to act to see meaningful action. Without a doubt, R2P has not been able to solve these issues. Whether actors act and under which conditions require a much more detailed analysis that future research hopefully can provide. In addition, the suggested concept of discursive space also requires further elaboration, both theoretically and in terms of empirical cases. Additional analysis of discursive spaces in situations of mass atrocities since 2005 would be certainly a feasible undertaking, and sadly there exist in larger numbers than I would like to see them, with Syria and Sri Lanka being the most prominent cases (see Hehir, 2018: 162–163 on Sri Lanka). The paper also demonstrated the usefulness of the discursive space produced by reference to R2P to grasp the non-linear and contested nature of R2P in a more holistic fashion, taking into account the contestation surrounding the norm and the different discourses a variety of actors draw on. However, similar to the empirical insight presented in this chapter, this conceptual insight remains at its early stage and requires further development, which unfortunately lies outside the chapters admittedly limited scope. A final reflexive remark: I do not want to argue that everything done under the label of R2P is excellent. Rather, R2P “represents a new normative conveyor belt

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for consolidating an idealised resolve on the part of the international community to counter mass atrocities” (Labonte, 2016: 143). And it “is embedded into a deeper and broader normative complex” (Welsh, 2019: 68). In the language of this chapter: R2P provides a different and possibly larger discursive space in which actors can act. If and how they do is an entirely different question. And whether actions undertaken under the label of R2P are laudable must also always be part of any analysis. Acknowledgments Earlier versions of this chapter were presented at the International Studies Association annual convention in Atlanta in March 2016, at a workshop at the University of Hamburg in July of 2016, and at EISAPEC 2018 in Prague. At all events participants provided valuable feedback. I would especially like to thank Caroline Fehl for providing additional valuable feedback. Thanks are also due to an anonymous reviewer, Johannes Glaeser from Springer, and the Editors Alex Reichwein and Mischa Hansel

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Dr. Sassan Gholiagha is a postdoctoral researcher at the European New School of Digital Studies (European University Viadrina, Frankfurt(Oder)). He has worked on norms research in International Relations (IR), security discourses, the Responsibility to Protect, international criminal law, drone strikes, human trafficking, and drug control. Currently he is involved in an interdisciplinary project bringing computer scientists and IR scholars together to work on questions of artificial intelligence, machine learning, and argument mining in the context of IR scholarship and political debates. His research has been published in journals such as the International Journal

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of Human Rights, the International Journal of Political Theory, Global Constitutionalism, and Global Society. He has also published his work in several edited volumes. He is the author of: “The Humanisation of Global Politics –International Criminal Law, the Responsibility to Protect, and Drones” (Cambridge University Press, 2022).

Protection of Basic Human Rights by Exercising Graded Responsibilities: Linking the Responsibility to Protect with the Attribution of Extraterritorial Duties Daniel Peters Abstract The international system of human rights protection is fragmented into various context-sensitive concepts, which for the most part are implemented in isolation from each other. Building on the assumption that a linkage of distinct concepts might generate synergy effects, this chapter demonstrates how to connect the Responsibility to Protect (R2P) and the attribution of extraterritorial duties of protection from human rights violations in a globalized world economy via the strategy of structural conflict prevention. To this end, it maps the similarities of two legal policy debates about the protection of basic human rights by the exercise of graded responsibilities. Thereby, the chapter illustrates how both debates share the same idea of a responsibility to protect while their respective concepts of protection can be distinguished along various dimensions. Following the rejection of a “narrow but deep approach” toward R2P, the possibility to link the concepts of protection from mass atrocities and from abstract harm in a globalized world economy is outlined by the example of non-sustainable debt regimes and of human rights violations caused by transnational corporations.

1 Introduction The international system of human rights protection is fragmented into various context-sensitive concepts, which for the most part are implemented in isolation from

Updated and shortened version of the author’s Ph.D. thesis published by Nomos (Peters, 2020) and updated version of an article published in Zeitschrift für Internationale Beziehungen by Nomos (Peters, 2019). The author thanks Nomos for the permission to reuse content in the present chapter. Additionally, the author thanks Fernando Mattos for his sound proofreading and his valuable comments. D. Peters (B) Departmental Branch of the Federal Police, Federal University of Applied Administrative Sciences, Lübeck, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2023 A. Reichwein and M. Hansel (eds.), Rethinking the Responsibility to Protect, Contributions to International Relations, https://doi.org/10.1007/978-3-031-27412-1_5

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each other (Peters, 2017: 672f.). The literature on international protection occasionally raises the question as to whether the establishment of linkages between distinct concepts might be able to generate synergy effects (Ainley, 2017; Gilgan, 2017). Previous studies have discussed a possible connection between refugee protection and R2P, albeit without having a tangible effect on the mindset of state representatives or humanitarian workers in the field, who continue to emphasize the differences between those two concepts (Gilgan, 2017: 387). Remarkably enough, other potential linkages have not even been explored in the academic literature so far—one of them being the connection between R2P and the attribution of extraterritorial duties in a globalized world economy. Against this backdrop, this chapter examines the feasibility of linking those two concepts of protection in an expedient way via the strategy of structural conflict prevention. Consequently, the chapter contributes to the ongoing debate between proponents of mass atrocity prevention and those of conflict prevention regarding the scope, instruments and objective of R2P’s preventive component (Reike et al., 2015). Due to the presumed compatibility of broader approaches as well as to potential tensions between a “narrow but deep approach” toward R2P and the overarching idea of international basic human rights protection by exercising graded responsibilities, this chapter endorses the strategy of conflict prevention with a focus on structural issues. The chapter is structured into five sections: Following the introduction, the second section maps the similarities of two important legal policy debates about the protection of basic human rights. These debates share the same idea of a responsibility to protect, according to which external actors have a duty to protect basic human rights within models of graded responsibilities. As it can be seen, the respective models of graded responsibilities in the context of mass atrocity crimes and with regard to the violation of basic human rights in a globalized world economy are based on the same structural features: The primary responsibility to protect the population within one’s own territory lies with the state itself. Simultaneously, at least one external actor is attributed with a complementary responsibility of assistance. In addition, if the state has proven incapable of exercising its duties, a subsidiary residual responsibility of at least one external actor will be activated. However, beyond these common features the exact content and the justification of the complementary and residual responsibilities depend on the specific context and the particular constellation of actors within it. As a result, the concepts of R2P and of the attribution of extraterritorial duties of protection are distinguished along six dimensions. The third section presents a rejection of the narrow but deep approach toward R2P. Subsequently, an alternative approach which links R2P with the attribution of extraterritorial protection duties via the strategy of structural conflict prevention is outlined. At this point, two correlations are crucial: Firstly, the vast majority of atrocity crimes are committed within the context of violent conflicts. Secondly, external factors contribute to varying degrees to the outbreak of these conflicts. Based on these premises, the third section illustrates how the exercise of extraterritorial duties might have a conflict-reducing effect and thereby contribute indirectly to the prevention of mass atrocities. The fourth section then highlights the dual positive

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effect of the exercise of extraterritorial duties, which protects basic human rights in an indirect and in a direct way, by discussing two examples of protection from harm in the context of non-sustainable debt regimes and of human rights violations caused by transnational corporations. In addition, by comparing the contestation of the two concepts discussed in this chapter it becomes clear that the processes of consensusbuilding and juridification regarding the regulation of transnational corporations have already advanced way much further than the debates about international protection from mass atrocities. Finally, the potential added value of the approach advanced here is discussed in the concluding remarks.

2 Establishing the Idea of a Responsibility to Protect In this section, the idea of a responsibility to protect, according to which the international community and/or individual states have a duty to protect basic human rights by exercising graded responsibilities, is derived from an analysis of the common features of two legal policy debates about the protection of basic human rights. Owing not only to the increasing economic integration and interdependence, but also to the intensified regulation of international relations and the voluntary adoption of obligations under international law, these debates indicate that the “firewall” (Arnauld, 2013: 69) of sovereign states to defend themselves against external interference has become more permeable. To a substantial degree, this opening process can be ascribed to the growing relevance of human rights as a normative yardstick in international relations. At the beginning, these political and legal debates were predominantly limited to the protection of civil and political human rights—with a focus on “a right to humanitarian intervention” in the immediate post-Cold War era and, since 2005, the invocation of a responsibility to protect civilians abroad from so-called “mass atrocity crimes” (R2P). However, during the second decade of the twenty-first century the scope of discussion was broadened to encompass other areas as well. Due to the increasing power of International Organizations (IOs) and Transnational Corporations (TNCs) on a global scale, the Food and Agriculture Organization (FAO) of the United Nations and the Human Rights Council adopted, for instance, specific guidelines covering areas such as business and human rights, sustainable debt regimes and agricultural investment. They did so mindful of the risk that IOs and TNCs might also violate human rights while carrying out their activities (Bohoslavsky, 2018; FAO, 2012; Lumina, 2011). To a great extent, these guidelines explicitly deal with the question of the existence of extraterritorial state duties regarding economic, social and cultural human rights. Admittedly, these documents and resolutions constitute soft law—voluntary rules which are not legally binding. Nonetheless, they bear the potential to facilitate the development of new legal norms. This first overview already makes clear that the above-mentioned debates differ from each other in answering the crucial question about what kind of human rights

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violations individuals should be protected against universally. Here, two considerations are essential: Firstly, basic human rights cannot be violated by physical violence only, but also by abstract forms of harm which are neither intended nor physical: Concrete harm involves the intention to make designated others suffer – most obviously enemies at war. Abstract harm is caused by impersonal forces where people’s intentions are less significant than the global structures and processes that push them to act in ways that harm others, though often unintentionally or because of indifference rather than malice. (Linklater, 2011: 38)

Secondly, despite the broad consensus about the indivisibility of human rights, from a pragmatic standpoint it makes sense to focus on basic human rights in discussions about duties of protection across borders. On the one hand, paraphrasing Henry Shue, there are basic human rights which are essential for the possibility to exercise all other human rights (Shue, 1980: 19). On the other hand, an intercultural consensus on universal human rights protection seems to be achievable most likely with regard to a few basic human rights (Donnelly, 1984: 417). Beyond that, a comprehensible prioritization might raise the chances of implementing the idea of an international responsibility to protect (Ferris, 2011: 278–80). Of course, the question of which human rights are essential for the potential to exercise other human rights remains highly contested. Referring again to Henry Shue, the present chapter takes the position that the rights to physical security and subsistence count as basic human rights for they are a minimal entitlement of each individual toward human society (Shue, 1980: 18, 20–29, 67). Therefore, at least the rights to life and to freedom from inhumane treatment as well as to food, water and health are included in that short list of basic human rights. More substantial and ambitious approaches like Human Security or the 2030 Agenda for Sustainable Development surely go way beyond this conceptualization of human rights which merely secure existence. Nevertheless, the pragmatic reasons mentioned above and an analysis of prominent legal policy debates about international human rights protection below justify to concentrate on a core of human rights in the course of implementing the idea of a responsibility to protect. Still, critics of such an approach might rightly contend that it reflects only the minimum (basic rights) within a minimum (the human rights agenda) of global moral and political efforts to establish a more just and equal world (Moyn, 2018: 200–213). In what follows, it will be shown that the idea of a responsibility to protect constitutes the joined rationale behind these legal policy debates and that their respective protection models share a common basic structure (see Sects. 2.1 and 2.2). The concluding section of the second part sheds light on the differences between the two concepts, which have been selected in this chapter for an operationalization of the idea of a responsibility to protect.

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2.1 The Discourse About the Protection from Mass Atrocities Despite repeated efforts to establish a “right to humanitarian intervention” as a legitimate form of self-help within the system of collective security set up through the UN Charter, there is a widely shared consensus among international law experts and state representatives that such a right still does not exist because of the prohibition of force and the lack of a corresponding state practice necessary for the constitution of customary law (Chesterman, 2001: 226). This rejection led to a rearrangement of the tense relationship between state sovereignty and human rights protection under the notion of a “Responsibility to Protect” by the International Commission on Intervention and State Sovereignty (ICISS) in 2001. The ICISS Report expresses the notion of basic human rights protection by the exercise of graded responsibilities: The primary responsibility to protect people from a violent death or starvation as a result of civil war or state collapse lies with the state concerned. Additionally, the international community is attributed with a simultaneous complementary responsibility of assistance and a subsidiary responsibility, which includes coercive measures up to a military intervention, in case the state proves itself incapable or unwilling to exercise its duties of protection (ICISS, 2001: 17). In contrast to the doctrine of Humanitarian Intervention, the Responsibility to Protect, as outlined by the ICISS, includes a broad set of non-violent means to prevent and stop large-scale human suffering; as such, it is conceptualized as a comprehensive agenda to protect “the fundamental components of human security – the security of people against threats to life, health, livelihood, personal safety and human dignity” (ICISS, 2001: 15). An even more comprehensive and ambitious human rights agenda is put forward by the 2005 World Summit Outcome Document (WSOD). Meanwhile, the scope of the Responsibility to Protect is restricted in paras. 138–140 of the WSOD to the prevention of core crimes under international law. This limited conception of international responsibility, which will be referred to here as R2P, has been advanced by the UN Secretary-General in his annual reports about the implementation of the responsibility to protect as a “narrow but deep approach”: “While the scope should be narrow, the response ought to be deep” (Ban, 2009: 8 [para. 10c]), including the use force as a last resort. For the purpose of this chapter, it is important to understand the difference between the idea of a responsibility to protect and the R2P-concept. As the R2P-concept is shaped by a criminological perspective, it is limited to the protection from mass atrocities and therefore only covers one section of the idea of a responsibility to protect (Karp, 2015a: 165). The latter, however, is open for the notion of social or abstract harm and thus is able to integrate other scenarios of large-scale, man-made violations of basic human rights, for instance those caused by external actors in a globalized world economy. The distinction between the idea and the concept of a responsibility to protect addresses the deliberations of Alex J. Bellamy and David Jason Karp, according to which every endeavor of conceptualizing this responsibility has to answer two questions at the very beginning: What kind of situations and human

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rights violations should be prevented through external action? And what strategies and instruments are appropriate to achieve the objective in an effective and efficient way? (Bellamy, 2009: 130; Karp, 2015b: 144). The answers to these questions are guided by political considerations: There is a sense of ownership at play about the use of the term ‘responsibility to protect’. This is a tactical way of dismissing non-conforming conceptions of a ‘responsibility to protect’ not only as different, but also as less realistic, less practical, less worthy of the international energy and effort that is properly put into the R[2]P. (Karp, 2015a: 148)

That is to say, the purpose, strategies and instruments of an international responsibility to protect are the preliminary results of political controversies, which always remain contested to a varying degree (Acharya, 2015: 59f., 76f.).

2.2 The Discourse About the Protection from Human Rights Violations in a Globalized World Economy Debates about the existence of extraterritorial duties of protection center on the question of whether a state has an obligation to protect individuals abroad from serious human rights violations when it is in a position to exercise decisive influence on the actor responsible for those violations (ETO Consortium, 2011: 7). Analogous to the Humanitarian Intervention doctrine and to R2P, one thread of the debates about extraterritorial duties deals with basic civil rights and a corresponsive obligation for international actors to prevent mass atrocities. Referring to the Genocide Convention, the International Court of Justice (ICJ) has put in somewhat concrete terms the conditions and the content of protection duties beyond territorial jurisdiction: The obligation of state parties is to employ all means reasonably available to them to prevent genocide (Have, 2018: 176–183). The most important parameter to assess whether a state has exercised its due diligence is its capacity to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. (ICJ, 2007: 221 [para. 430])

In the context of globalization and global governance, a second thread of the debates about the existence of extraterritorial duties has evolved around claims for the regulation of the activities of IOs and TNCs in consideration of human rights standards. On this matter, the requirement for the exercise of extraterritorial duties is most obvious with regard to member states of IOs in the context of structural adjustment programs and with regard to home states of TNCs concerning practices in the extractive and in the textile industry as well as to the effects of land-grabbing. Since basic economic and social rights such as the rights to food, water and health are affected in these

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contexts—alongside basic civil rights like the right to life and to freedom from inhumane treatment—international law experts have drafted guidelines on the violation of second-generation human rights (O. A., 1998 Following up on this, the Committee on Economic, Social and Cultural Rights (CESCR) has repeatedly confirmed the existence of extraterritorial duties of protection for member states of IOs and home states of TNCs in several of its non-binding General Observations (CESCR, 1999: 8 [para. 36]; 2017: 9 [para. 28]). Extraterritorial duties of protection with regard to basic economic and social human rights can be derived from the state obligation to cooperate under international law, which is firmly established in Articles 55 and 56 of the UN Charter and Articles 2 I and 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). By applying the ICJ’s pattern of argument regarding the above-mentioned capacity to effectively influence the actors who are responsible for violations, the CESCR has substantiated the obligation to cooperate to the effect that it includes a duty of protection: In the spirit of Article 56 of the Charter of the United Nations [...] State parties should recognize the essential role of international cooperation and comply with their commitment to take joint and separate action to achieve the full realization of the right to adequate food. In implementing this commitment, States parties should take steps to respect the enjoyment of the right to food in other countries, to protect that right, to facilitate access to food and to provide the necessary aid when required. (CESCR, 1999: 8 [para. 36])

Regarding the right to health, the CESCR added that State Parties have the obligation “to prevent third parties from violating the right in other countries, if they are able to influence these third parties by way of legal or political means” (CESCR, 2000: 14 [para. 39]). Likewise, with regard to the capacity to influence transnational corporations, the international covenant states that “[e]xtraterritorial obligations arise when a State Party may influence situations located outside its territory […] by controlling the activities of corporations domiciled in its territory and/or under its jurisdiction” (CESCR, 2017: 9 [para. 28]). The CESCR-criteria (the state has the capacity to effectively influence the action of IOs and TNCs likely to cause or to contribute to human rights violations) is less demanding than the ICJ-criteria regarding the extraterritorial obligation to prevent genocide (the state has effective control over a force or a territory in another country) and enables the concretization of the obligation to cooperate under international law (Narula, 2013: 120). According to the former, the primary responsibility to protect lies with the host state. Simultaneously, member or home states are attributed with a complementary responsibility to assist the host state in monitoring the adherence of due diligence by IOs and TNCs because of their capacity to influence these actors effectively. Moreover, if the host state is unwilling or incapable of providing effective legal protection, a subsidiary responsibility for member and home states is activated to guarantee legal protection in case of human rights violations caused by IOs or TNCs (CESCR, 2017: 10f. [paras. 30–34]).

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2.3 Similarities and Differences in Both Discourses About Human Rights Protection The elaboration on the two discourses about international human rights protection indicates some similarities between them: First of all, they share the same idea of a responsibility to protect, as the international community or one or more state(s) have a responsibility to protect people abroad from violations of their basic human rights within models of graded responsibilities. Secondly, these models of graded responsibilities share the same basic structure: The primary responsibility to protect its population lies with the individual state. Simultaneously, at least one external actor has the complementary responsibility to assist the state in fulfilling its primary responsibility. Furthermore, if the state fails to exercise its protection duties, a subsidiary responsibility for at least one external actor is activated to secure the basic human rights of the population (ETO-Consortium, 2011: 9, 12). Beyond these similarities regarding the normative basis and the structure of the respective models of graded responsibilities of both discourses, several distinctions appear when it comes to operationalizing the idea of a responsibility to protect (Breakey, 2012: 320–327). First of all, the scope of R2P is the protection from mass atrocities, whereas the concept of attribution of extraterritorial protection duties aims to protect individuals from—mostly abstract—human rights violations caused by IOs and TNCs. Secondly, regarding the question as to which human rights should be prioritized for protection, the former concept is focused on the protection of the right to life and the right to be free from inhumane treatment, while the latter also incorporates the rights to food, water and health. The third distinction revolves around the actor constellation: In situations of mass atrocities, at least three actors are involved: the host state, its population and at least one external collective actor, namely the UN or a Regional Organization. In comparison, at least four parties participate in situations where extraterritorial duties allegedly exist: besides the host state and its population, an IO or TNC and its member or home states. In addition, the exact content of the duties differs considerably from one concept to the other, which will be analyzed in some detail in Sects. 3 and 4. Another difference lies in the justification for the application of each of the two concepts. On the one hand, the role of the UN and the capabilities of Regional Organizations and powerful states are decisive for the application of R2P. On the other hand, the capability of a member or home state to effectively influence the decision-making process and, thereby, the actions of an IO or a TNC is of paramount importance for the attribution of extraterritorial protection duties. Finally, the normative status of both concepts is different: whereas R2P gives reasons for moral obligations, recent developments regarding the extraterritorial duties of home states of TNCs point to an increasing juridification in dealing with human rights violations in a globalized world economy. Building on these clarifications, in Sects. 3 and 4 the idea of a responsibility to protect will be operationalized by the concepts of R2P and the application of extraterritorial duties. Besides, the possibility to link both concepts in an expedient way will be examined.

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3 Operationalizing the Idea of a Responsibility to Protect I: The R2P-Concept Operationalizing the idea of a responsibility to protect in a comprehensive way demands for context-specific concepts which are compatible with each other and hence able to gain synergy effects. Therefore, it is important to design each concept in a way that makes them connectable to the others and does not put them in contradiction with the fundamental idea. In the following, it will be argued that the narrow but deep approach toward R2P does not meet these requirements (see Sect. 3.1). Because of that, the R2P-concept has to be conceived more comprehensively with a focus on conflict prevention, which brings R2P back to its roots, the original blueprint outlined by the ICISS in 2001 (see Sect. 3.2).

3.1 Rejecting the Narrow but Deep Approach According to the narrow but deep approach, R2P applies only to four specified crimes—genocide, war crimes, ethnic cleansing and crimes against humanity—and encompasses a complete toolbox of peaceful as well as coercive preventive and reactive measures (Ban, 2009: 8 [para. 10b]). The prioritization of certain crimes is contested within the debate about the international protection of human rights (Kleffner, 2012: 84–86; Richmond, 2016: 155; Karp, 2015a: 144) mainly because, from the victim’s perspective, it is not decisive whether the life-threatening harm is caused by a criminal act or by a social or structural harm (Hillyard et al., 2004: 2; Linklater, 2011: 38, 60). Why, critics of such a prioritization ask, should mass atrocity crimes be a more offensive neglect of human dignity than the man-made “‘silent genocide’ of death through poverty and malnutrition” (Wheeler, 2000: 308)? Compared to conflict prevention, mass atrocity prevention is more concerned with agency than with structures, as its focus lies on national factors, not on the regional or global context or on the actions of external actors; likewise, its goal is the prevention of international crimes and not the prevention or peaceful settlement of armed conflicts (Sharma & Welsh, 2015: 371, 391). Against this backdrop, it is inevitable that both kinds of prevention can be at odds in practice (Welsh, 2016: 90f.; Reike et al., 2015: 22–29). For example, the deterrent effect of targeted sanctions or the referral of a situation to the International Criminal Court (ICC) is disputed (Saxon, 2015: 121f.). An investigation by the ICC might lead to a situation in which potential perpetrators seek a decision on the battlefield instead of a political solution and the creation of an inclusive government which may sooner or later hand over those responsible for international crimes to the court in The Hague (Reike, 2015: 338f, 355–358; Saxon, 2015: 125). Mass atrocity prevention includes the preventive deployment of troops against the will of the government, which practically means that certain groups of civilians are protected from potentially violent acts by another group and therefore the interveners

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have to choose sides in what is usually a political conflict (Sharma & Welsh, 2015: 387). This one-sided support of one group and condemnation of the other carries the risk of hampering the political dialogue. The bottom line is that R2P brings with it the possibility of waging wars to prevent certain crimes, whereas peacekeeping and the paradigm of Protection of Civilians in Armed Conflicts (PoC) require the consent of the main conflict parties and limit the use of force to the tactical level to defend civilians as well as to the main goal of the mandate, which is to foster a peaceful solution of the conflict (Tardy, 2012: 440). Apart from questions of neutrality in an intrastate conflict, there is the moral dilemma of shifting the burdens of conflict from one group of civilians to another (Sewall, 2015: 164). In a context where the intervener is only protecting certain areas, this might be a neglectable concern, but as soon as the international force starts to support the military offensive of one party, and in doing so, expands the conflict zone to areas that have been quite safe before, negative effects concerning the protection purpose come into play. Finally, by suggesting a perpetrator–victim dichotomy, which, to say the least, is of little substance in almost all internationalized civil wars of the twenty-first century (Ainley, 2017: 252; Luck, 2016: 306), proponents of Mass Atrocity Prevention ignore the influence of external actors and of regional and global political and economic structures in the genesis of violent conflicts—for example, arms trade to authoritarian regimes, illicit trade with natural resources and commodities or the implementation of structural adjustment programs: There is the unfortunate tendency of western civil society to represent the domain of human rights violations as simply a relationship between predator post-colonial states, and its weird leaders, and the suffering populations. Removed from this scene is the role of dominant global social forces, international institutions and powerful States in embedding and sustaining economic and political structures that lead to the gross violation of human rights. This absence allows precisely those social forces, institutions, and States that are complicit in human rights violations to turn up on the scene as saviors. (Chimni, 2012)

This omission is unfortunate because, analytically, the reality of the embeddedness of all states in a trans- and international system is not properly taken into account; moreover, both strategically and practically, the own conduct of external collective actors, which is under their control and, therefore, alterable, is not part of the problemsolving process. Also, the proposed solution of liberal state-building seems detached from reality as long as some of these external actions and structures impede the improvement of state capacity (Coicaud, 2015: 179–180). Even though the narrow but deep approach is justified on several grounds by R2P advocates, their arguments do not stand up to scrutiny. Contrary to their standpoint on the issue, neither is it convincing to argue that the prevention of the most horrific crimes that are prohibited by international law should be prioritized by the international community, nor does any attempt to extend R2P violate the consensus of the World Summit of 2005. As a matter of fact, the intensity of various other forms of harm, which are actually more prevalent, is comparable to those crimes, as they also violate basic human rights and endanger the survival of human beings (Linklater, 2011: 62–75). Regarding the 2005 consensus, the three paragraphs about R2P have

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already been integrated into a holistic reform agenda with the overarching goal of sustainable development. In fact, a major part of the encompassing reform agenda is a prevention-orientated comprehensive human rights protection program which inter alia contains a commitment to the right to development and to the concept of Human Security (UNGA, 2005: 28, 31 [paras. 123, 143]), restricting the application of coercive means to the worst international crimes. Moreover, the commitment of Western states to the Millennium Development Goals and to the right to development was a prerequisite for the approval of R2P by Southern states (Murthy and Kurtz, 2016: 50). If this diagnosis is correct, it seems odd to argue that an opening of R2P toward development issues would weaken the consensus (Bellamy, 2009: 100f.), especially if international ancillary responsibilities are limited to peaceful means. Finally, considering mass atrocities in Egypt, Syria, Yemen and several other countries in the second decade of the twenty-first century, there is simply no evidence that the biggest advantage of the narrow but deep approach is its higher practicability, as some of its proponents assert (Bellamy, 2015: 49; Evans, 2008: 65; Welsh, 2016: 82). As a consequence, the protection of individuals from mass atrocities is indeed a substantial element in the effort to operationalize the idea of a responsibility to protect, though the narrow but deep approach is difficult to reconcile with the purposes of this idea.

3.2 Instruments for the Protection from International Crimes Considering the above-mentioned shortcomings of a narrow but deep approach, it seems useful to adopt an alternative strategy to the one based on measures and on the goal of mass atrocity prevention. In its original blueprint of a responsibility to protect, the ICISS offered a different approach toward prevention with (structural) conflict prevention as its centerpiece complemented by some instruments of mass atrocity prevention (ICISS, 2001: 22f.).

3.2.1

Instruments of Mass Atrocity Prevention

Since, for one thing, some mass atrocities occur outside the context of a violent conflict and, for another thing, the toolbox of conflict prevention will possibly never be that effective to hamper the escalation of a conflict into a violent mode in every single case, instruments of mass atrocity prevention are needed to protect individuals from international crimes (Welsh, 2016: 90–92). The restrictive use of military force (Graubart, 2015: 217f.) and the adoption of sanctions might be the two most important ones. The NATO-led Operation Odyssey Dawn revealed once again the pitfalls and dilemmas of military humanitarian intervention in contemporary international society, which can be broken down into three categories: Firstly, the problem of

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mixed intentions bears the risk of a potential “mission creep.” In the case of Operation Odyssey Dawn, the protection mandate was misused for a one-sided partisanship in the Libyan Civil War to reach a regime change. Secondly, the lack of a blueprint for post-conflict peacebuilding in Libya and the rejection of a peaceful solution encompassing all parties of the civil war helped create a different kind of humanitarian catastrophe after the initial prevention of mass atrocities (Becker & Shane, 2016: 4). Thirdly, the military strategy of a “light footprint approach,” which is the combination of air power, special operators, intelligence agents, indigenous armed groups and contractors, increased the risk for civilians and shifted the liability for actions on the battlefield upon the allied rebels. Even if, as a result, the intervening forces have only indirect responsibility for war crimes committed by allied rebel groups, this strategy of a light footprint could amount to charges of complicity for war crimes (Reike, 2015: 363f.). One consequence of the “mission creep” in Libya was the draft of a concept note by the Brazilian government regarding a Responsibility while Protecting (RwP) (Ribeiro Viotti, 2011). This modification of R2P’s reactive pillar entails the requirement that all peaceful means must be exhausted before military measures for the protection of civilians are contemplated and that the interveners must act in accordance with prudential criteria as well as with the letter and spirit of the UN mandate. Additionally, the Brazilian government suggests the establishment of enhanced Security Council procedures to monitor and assess the implementation of the UN mandate (Gresse et al., 2017: 128f.). These concerns are not in any way innovative or provocative as they touch on points which have been discussed since the Security Council practice of delegation is at work and deal with criteria of the Just War Theory like last resort, just intention and proportionality (Pattison, 2016: 110–116). Admittedly, even modest recommendations like the inclusion of a “sunset clause”—a time limit for mandates requiring constant renewal—or the establishment of monitoring procedures would probably have adverse effects on the willingness of states to risk the lives of their soldiers and to provide resources to save strangers. This would—in combination with the delaying effect of fact-finding missions, report mechanisms and monitoring procedures—also imperil the options for a timely response. The alternative of sticking to a status quo, however, seems even more untenable (Peters, 2020: 210f.). For their part, sanctions have almost exclusively proven an efficient tool for mass atrocity prevention as one part of a long-term strategy of conflict resolution which combines peacekeeping and peace-enforcement measures, if at all (Charron, 2013: 187f.): The slow-burn impact of sanctions suggests that their regulatory utility might be greatest as part of R2P’s upstream preventive (responsibility to prevent) or downstream rebuilding (responsibility to rebuild) phases. […] Thus, if the goal is to employ sanctions to maximum effect (rather than as a signaling exercise), then the strategic application of targeted sanctions, including a travel ban and an asset freeze, holds stronger potential to regulate the behaviour of spoilers and perpetrators during the preventive and rebuilding phase than it does during the more urgent protection phase. (Farrall, 2016: 666)

Sanctions’ possibly positive effects are up against several risks and negative side effects: A sanctions regime could be at odds with the principle of the rule of law

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(Farrall, 2016: 666f.), endanger the fulfillment of basic human rights (Gordon, 2019) or be rejected as a precursor for military action by some UN Security Council permanent member state(s), thereby impeding effective and unanimous international assistance. These cursory remarks might suffice to illustrate that, under certain circumstances, coercive measures to protect individuals from mass atrocities constitute a necessary but ever problematic tool. Therefore, the use of force in particular should be applied restrictively (Pattison, 2016: 108, 115) and subsidiary to measures of conflict prevention (Woocher, 2012: 30f.). These instruments will be dealt with in the next section in more detail.

3.2.2

Instruments of Conflict Prevention

As a matter of fact, the vast majority of mass atrocity crimes in the twenty-first century have been committed in the context of a violent conflict (Bellamy, 2011: 1f., 8). To help forestall these conflicts through external intervention, scholars and practitioners have developed an extensive toolbox, which includes instruments of structural and direct prevention. Whereas structural prevention has a long-term perspective and is process-oriented, direct or operational prevention focuses on short-term instruments that work toward a change in the perpetrator’s behavior. Broad agreement exists in the academic literature that only a combination of structural and direct measures offers the prospect of making an effective external contribution to the prevention or mitigation of violent forms of conflict at all (Bellamy, 2016: 68). The toolbox of conflict prevention has been extensively discussed before (Carnegie Commission, 1999; Lund, 2009; World Bank & United Nations, 2018), therefore, and for the purpose of this chapter, only two measures will be discussed in the following: United Nations peacekeeping operations as an instrument of direct prevention and the attribution of extraterritorial duties of protection in a globalized world economy as an instrument of structural prevention. Given that United Nations peacekeeping operations have been appropriately equipped, they have occasionally had a positive effect on the prevention of violence not only by reducing the risk of mass atrocities in the context of violent conflicts, but also by serving as a buffer between warring factions (Holt, 2019: 29f.; Hultman et al., 2019: 91–101, 121–131). Moreover, the deployment of peacekeepers has at times reduced violence in active civil wars and diminished the risk of a renewed flare-up of fighting in just-finished conflicts (Hultman et al., 2016). However, UN peacekeeping operations’ mixed record at best regarding the protection of civilians as well as the prevention and mitigation of mass atrocities indicates the need to improve planning and resource allocation and urges a substantial commitment of industrial countries. In addition, the protection mandate must be carried out impartially, which would also mean that in case of mass atrocities committed by representatives and forces of the host country, peacekeepers are authorized to use force against them to protect individuals (Berdal, 2019: 121–124; Karlsrud, 2018: 138f.; 159–162). Applied this

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way, United Nations peacekeeping has the potential to contribute to the implementation of the idea of a responsibility to protect and thereby to invalidate, to a certain extent, the criticism according to which “peacekeeping is the highest form of liberal imperialism in that it has developed out of earlier forms of liberal empire and in that it is the best adapted to fulfilling imperial functions in today’s international system” (Cunliffe, 2013: 28). In contrast to direct prevention, structural prevention aims to tackle the root causes of violent conflicts. It is established in conflict research that economic factors are among these root causes, especially poverty and inequality (World Bank & UN, 2018: 110f.), both absolute and relative: Poverty, specifically as sensitized by relative depravation, creates the conditions out of which conflict can grow, state incapacity, from weakness through failure to outright collapse, creates the conditions out of which poverty and depravation can grow. The causal chain can apply to the entire state or to neglected regions, producing different types of conflict [...] The state weakness creates an open space for those who would fill the vacuum, the deprivation gives them a cause to do so. (Zartman, 2005: 266f.)

Several external impact factors have an influence on the economic performance of states, most notably structural adjustment programs (SAPs) and non-sustainable debt regimes. SAPs arranged by the International Monetary Fund (IMF) and the World Bank have repeatedly led to human rights violations, either through the forceful suppression of protests against the implementations of these programs or by reducing public spending on health and by cutting subsidiaries on food and fuels (Abouharb & Cingranelli, 2007). Powerful member states of such IOs have the capacity to influence the decision-making process within these institutions. That is why the CESCR and other experts on international law attribute extraterritorial duties to member states of the IMF and World Bank (CESCR, 2000: 14 [para. 39], 2002: 12 [para. 36]; Narula, 2013: 128) to make sure that basic human rights are not violated by the collective actions of international financial institutions and borrower states (see Sect. 4). To put it plainly, SAPs and non-sustainable debt regimes are external economic impact factors, which have the potential to weaken the capacity of a state to provide public goods, thereby contributing to the strengthening of incentive and opportunity structures for the instigation of a violent conflict. For one thing, state incapacity to provide for public goods of welfare and security violates basic human rights; secondly, these human rights violations pose a risk factor for the outbreak of a violent conflict, which is the breeding ground for the perpetration of mass atrocities (Have, 2018: 201, 212f.). This indirect way in which SAPs could lead to human rights violations explains the rationale behind the feasibility of linking R2P with the attribution of extraterritorial duties of protection via the strategy of structural conflict prevention.

3.2.3

The Model of Graded Responsibilities Within the R2P-Concept

Within the model of graded responsibilities to protect individuals from mass atrocities the primary responsibility lies with the state itself. Simultaneously, individual

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states and IOs (United Nations and Regional Organizations) have a complementary responsibility of assistance to help the state fulfill its legal obligations. This responsibility includes several tools of conflict prevention, for example the application of extraterritorial duties, UN peacekeeping, resettlement and a restrictive arms exports policy (Peters, 2020: 281). On the second level, in the event of a state failing to fulfill its obligation to protect, a subsidiary residual responsibility for the international community and individual states to guarantee protection from mass violence is activated. This residual responsibility includes the adoption of sanctions by individual states, Regional Organizations and the UN as well as the use of force, authorized by the UN Security Council. Structured in this—compared to the narrow but deep approach—more comprehensive way, the R2P-concept is in accordance with the idea of a responsibility to protect and is compatible with other concepts of protection, most notably the attribution of extraterritorial duties of protection. Apart from the legal duty to protect individuals abroad from genocide due to the capacity to influence the potential perpetrators (Have, 2018: 166–171), all of the other instruments of international protection from mass atrocities are grounded in moral duties. Furthermore, as long as the contestation of R2P by states like Russia, China and India continues and keeps being rooted in established perceptions and values (Deitelhoff, 2019: 170), a further juridification of the concept is highly unlikely. Last but not least, even some supporters of R2P, like the United States, do not want their discretion in the UN Security Council to be limited by procedural rules or by any automatism, which links the determination of mass atrocities to certain actions.

4 Operationalizing the Idea of a Responsibility to Protect II: The Attribution of Extraterritorial Duties of Protection The attribution of extraterritorial duties of protection holds potential for the protection of basic human rights in two respects: Firstly, it can be used as an instrument of structural conflict prevention by inhibiting measures adopted by International Financial Institutions (IFIs) and borrower states. As argued above, measures such as SAPs and non-sustainable debt regimes potentially weaken states’ capacity to provide public goods, thereby creating, or reinforcing, incentive or opportunity structures prior to the outbreak or escalation of violent conflicts (see Sect. 3.2.2). Since the vast majority of mass atrocity crimes are committed in the context of violent conflicts, the attribution of extraterritorial duties for member states of IFIs would indirectly contribute to the protection of basic human rights like the right to life and the right of freedom from inhumane treatment by providing yet another tool of conflict prevention (Have, 2018: 212f.). Secondly, the application of extraterritorial duties can help protect basic human rights in a direct way when the exercise of such duties contributes to prevent IOs and TNCs from making decisions and performing actions which would likely facilitate

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the violation of basic human rights in a globalized world economy. According to this argument, the attribution of extraterritorial duties by member states of IOs provides another distinct concept to operationalize the idea of a responsibility to protect (see Sect. 4.1). The same holds true for the attribution of extraterritorial duties by home states of TNCs (see Sect. 4.2). Human rights violations caused or contributed to by TNCs also have the potential to fuel social protests, which could provoke violent repression and further the outbreak of violent conflicts, as in the case of forced expulsions in the context of land-grabbing or the killing of labor union members. Finally, a comparison of the efforts to build a consensus about the respective concepts of international human rights protection shows that the norm diffusion process regarding the regulation of transnational corporations has already advanced way much further than the debates about R2P (see Sect. 4.3).

4.1 Extraterritorial Duties of Protection for Member States of International Organizations Numerous quantitative and qualitative studies have established the finding that the actions and decision-making processes of international financial institutions could have a negative impact on the protection and fulfillment of basic human rights. According to previous research, this occurs either because the goal of macroeconomic stabilization highlighted in SAPs could only be achieved by cutting public spending at the expense of social and economic human rights like the rights to food, water, housing, health, etc., or because of human rights violations caused by the implementation of credit-financed infrastructure projects (Abouharb & Cingranelli, 2007: 135–149; Lumina, 2018: 179–184; Stubbs & Kentikelenis, 2018: 369–379). As a consequence, the CESCR and various experts of international law have attributed an extraterritorial duty of protection to the member states of these IOs. The content of the duty is to prevent a situation in which a borrower state and the institutional lender jointly violate basic human rights either by agreeing upon measures which have a retrogressive effect on the fulfillment of basic economic and social rights, or by arranging the implementation of infrastructure projects in which human rights are violated, for example in the case of forced evictions (O. A., 1998: 696, 698f. [paras. 14e. 19]; ETO-Consortium, 2011: 8, 11 [paras. 15, 32d]; CESCR: Concluding Observations on Germany, 2001: 5 [para. 31]).

4.1.1

Justification of Extraterritorial Duties of Protection for Member States of IOs

Proponents of the attribution of extraterritorial duties of protection justify their stance on the issue with the obligation to international cooperation and the capacity of member states to effectively influence the actions and decision-making processes of

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the IO. This capacity varies between member states according to their voting power and also to their political and economic leverage. States have an extraterritorial duty to respect human rights in international law (Lumina, 2011: 11 [annex-para. 2]), and this duty does not disappear when they act within and through an IO: States have an obligation to provide international assistance and cooperation in order to facilitate the full realization of all rights. As part of their obligations with regard to international cooperation and assistance, States have an obligation to respect and protect the enjoyment of human rights of people outside their borders. This involves avoiding conduct that would foreseeably impair the enjoyment of human rights by persons living beyond their borders, contributing to the creation of an international environment that enables the fulfilment of human rights, as well as conducting assessments of the extraterritorial impacts of laws, policies and practices. (Bohoslavsky, 2018: 14f. [para. 13])

The decisive point is that delegation could not be used by member states as an excuse to fail to comply with their existing human rights obligations (Bohoslavsky, 2018: 16 [para. 15.3]): In sum, when the World Bank or the IMF disregards or violates human rights, it is acting at the behest of member States that are themselves bound by international human rights obligations. To the extent that those nations direct IFIs to engage in human rights violations, or fail to adequately supervise the actions that are being taken on their behalf, the human rights violation committed by IFIs also reflect the failure of these member States to abide by their international human rights obligations. (Narula, 2013: 136)

4.1.2

The Respective Model of Graded Responsibilities of Protection from Human Rights Violations Caused or Contributed to by Non-Sustainable Debt Regimes and Credit-Financed Infrastructure Projects

The two consecutive Independent Experts on the Effects of Foreign Debt and Other Related International Obligations of States on the Full Enjoyment of all Human Rights, Particularly Economic, Social and Cultural Rights have mapped out in their reports to the UN Human Rights Council how a model of graded responsibilities of protection from human rights violations caused by non-sustainable debt regimes and credit-financed infrastructure projects might look like (Bohoslavsky, 2018; Lumina, 2011). According to the Guiding Principles on Foreign Debt and Human Rights and the Guiding Principles on Human Rights Impact Assessments of Economic Reforms, the primary responsibility for the protection of its own population is a legal obligation for every state. Simultaneously, member states of international financial institutions have a complementary responsibility to assist the borrower state in conducting a human rights impact assessment prior to lending as well as before and during the implementation of SAPs and infrastructure projects. In case of non-sustainable debt regimes, member states have a subsidiary responsibility to grant a moratorium or debt relief and to install a debt workout mechanism, which decides about the reconstruction of credits and invalidity of so-called “odious debts” (Bohoslavsky, 2018: 5f., 10, 13f., 18f. [paras. 3, 10, 12, 18.1]; Lumina, 2011: 15f. [annx-paras. 40f.]).

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In contrast to R2P-situations, the actor constellation in the context of predominantly abstract harm caused by non-sustainable debt regimes is different. At least four parties are involved: the borrower state and its population, one or more international financial institution(s) and its or their member states. Furthermore, external actors appear in these constellations not only as guardians of human rights, but also as their violators. As with R2P, member states’ extraterritorial duty of protection rests on a moral obligation, and a juridification is unlikely to materialize in the near future. That is because the voting record within the UN Human Rights Council shows a division into two blocks: The majority within the UN Human Rights Council voted in favor of the two Guiding Principles put forward by the Independent Experts on the effects of foreign debt. This majority is built by emerging and developing countries of the so-called “Global South.” In contrast, almost all countries from the “Global North” voted against these two documents that contain the Guiding Principles dealing with non-sustainable debt regimes (A/HRC/RES/20/10; A/HRC/RES/40/8).

4.2 Extraterritorial Duties of Protection for Home States of Transnational Corporations Catastrophes like the factory fire in Karachi, Pakistan, in 2012 or the dam collapse in Brumadinho, Brazil, in January 2019, each leaving more than 250 people dead, are the most visible expressions of human rights violations caused or contributed to by TNCs, its subsidiaries and business partners, in these cases the German companies KiK and TÜV Süd. By comparison, situations of appropriation and exploitation that violate social and economic human rights—in addition to civil rights like the right to life and the right to be free from inhumane treatment—are a far more widespread and ordinary feature of today’s globalized world economy. It is important to bear in mind here that human rights violations caused or contributed to by TNCs, for example forced expulsions in the context of land-grabbing or the killing of labor union members, could also spike social protests (Rottmann & Kruckow, 2011). That not only makes the exercise of extraterritorial duties by home states of TNCs a tool of structural conflict prevention, but also connects it with the R2P-concept. Especially the intensified privatization of formerly public goods in sectors like education, health, water supply and sanitary facilities after the end of the Cold War, forced within the framework of SAPs, created a situation “where profit considerations dictate the availability of, and access to, basic human needs” (Deva, 2017: 158). Additionally, the practice of land-grabbing, which means transactions of land rights to foreign investors at the expense of third parties like local communities, farmers and pastoralists who have cultivated the land before, potentially violates human rights to food, housing, water and health, among others (Schutter, 2011; World Bank & United Nations, 2018: 149). Therefore, it is not surprising that the processes of globalization and privatization were accompanied by claims for a regulation of the activities of TNCs.

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Agreements on voluntary initiatives and non-binding instruments like the UN Global Compact in 2000 or the Guiding Principles on Business and Human Rights in 2011 have proven unsuitable to push forward the universal respect for human rights by TNCs and to grant a subsidiary judicial protection for victims of human rights violations caused or contributed to by these enterprises in the courts of their home states (Aaronson & Higham, 2015; Sethi & Schepers, 2014). Consequently, the UN Human Rights Council decided in 2014 to “establish an open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights [OEIGWG], whose mandate shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises” (UNHRC, 2014: para. 1). So far, the OEIGWG on TNCs has held six sessions, and in 2020 the second revised draft of a legally binding instrument was discussed in state-led direct substantive intergovernmental negotiations.

4.2.1

Justification of Extraterritorial Duties of Protection for Home States of TNCs

In its General Comment No. 24 on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities the CESCR clarifies that the obligations of the ICESCR apply without any limitation linked to territory or jurisdiction (CESCR, 2017: para. 27). It also refers to Article 55 of the UN Charter, and to the acknowledgment of the extraterritorial scope of core human rights treaties by the ICJ (CESCR, 2017: para. 27) to state that [e]xtraterritorial obligations arise when a State party may influence situations located outside its territory, consistent with the limits imposed by International Law, by controlling the activities of corporations domiciled in its territory and/or under its jurisdiction, and thus may contribute to the effective enjoyment of economic, social and cultural rights outside its national territory. (CESCR, 2017: 8f. [para. 28])

That is to say, that a home state has the capacity to influence and control the business activities of those TNCs which are under its jurisdiction, and this capacity constitutes extraterritorial obligations.

4.2.2

The Respective Model of Graded Responsibilities of Protection from Human Rights Violations Caused or Contributed to by the Activities of TNCs

The CESCR and also the OEIGWG on TNCs leave no room for doubt that the primary responsibility to protect human rights lies with the state, and that this responsibility contains the legal duty to protect individuals against human rights abuses by third parties, including business enterprises (CESCR, 2017: 5f. [paras. 14–18]; OEIGWG,

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2020: 2 [preamble]). Simultaneously, the home state of the TNC has the complementary responsibility to make sure that TNCs domiciled in the territory and/or jurisdiction of state parties act with due diligence to identify, prevent and address human rights violations by these companies and their subsidiaries and business partners along the entire supply chain (CESCR, 2017: 10 [paras. 31–33]; OEIGWG, 2020: 7f. [Article 6]). If human rights are violated by TNCs or their business partners and the host state does not provide an effective access to remedy, the home state of the TNC has the subsidiary responsibility to ensure victims’ access to its domestic courts (OEIGWG, 2020: 8f. [Article 7]; CESCR, 2017: 11 [paras. 34f.]). Up to now, international protection from human rights violations caused or contributed to by TNCs still consists of moral duties. Apart from that, several states like France and the Netherlands have already moulded the spirit of the non-binding Guiding Principles on Business and Human Rights of 2011 into binding national legislation. Likewise, in March of 2021 the European Parliament adopted a resolution on “Corporate Due Diligence and Corporate Accountability” and the German Federal Cabinet at least agreed on a watered-down version of a supply chain law, which is expected to pass the Parliament before the next election. Simultaneously, discussions within the OEIGWG have reached a point where the adoption of a binding instrument to regulate the activities of TNCs and other business enterprises within the next few years is quite likely—which does not mean that such an international treaty would be highly effective. As long as states of the Global North remain on the sidelines and show no interest in promoting the regulation of TNCs on a global level (Deva, 2017: 164f.), this instrument is of a limited, but nonetheless highly symbolic, value.

4.3 Comparison of the Processes of Norm Diffusion What remains to be noted is the fact that the processes of consensus-building and juridification regarding the regulation of TNCs have already advanced way much further than the debates about the R2P-concept. It seems like the norm diffusion of R2P has come to a halt since the 2011 NATO-led intervention in Libya and the failure of the international community to stop the bloodshed in both Syria and Yemen (Hehir, 2019: 45f.; Tacheva & Brown, 2015: 463f.). As regards the comparison between the norm diffusion of R2P and the regulation of TNCs, several important concessions toward skeptical states have already been made within the OEIGWG to broaden the alliance of supporters. For example, the potential treaty will not be limited to TNCs, and there is no more an assertion of precedence of human rights over all trade and investment agreements. Both points had been an integral part of the Elements Document of 2017, but none of them was included either in the Zero Draft document of 2018 or in the Revised Drafts of 2019 and 2020 in an effort to find a consensus. Regarding R2P, there are not many good examples of a productive dealing with contestation by its supporters. This issue has become most evident when European countries and the United States showed no real interest in Brazil’s Responsibility

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while protecting initiative in 2011–2012 (Gresse et al., 2017: 124–137). Nevertheless, some developments suggest that a learning process has occurred since 2015, at least for certain proponents of R2P. These include, for example, the opening of the annual reports of the Secretary-General about the implementation of R2P for topics like conflict prevention, peacebuilding and terrorism prevention or the—ultimately abandoned—initiative of a broad alliance of states within the General Assembly to prepare a resolution on the occasion of the 10th anniversary of the WSOD, which linked R2P to structural conflict prevention, sustainable development, food security and the human rights agenda, among others (Peters, 2020: 173). However, these examples have not sparked a norm modification of R2P so far, and nothing less than a norm adaptation might be necessary to bring the concept out of the deadlock it has reached years ago (Hehir, 2018: 222; Ralph & Gallagher, 2015: 568f.). To sum up, linking R2P to the attribution of extraterritorial duties of protection via the strategy of structural conflict prevention might be one viable path to restart the norm diffusion of R2P (Ainley, 2017: 254, 261f.; Have, 2018: 211–214). That is because R2P proponents of the Global North are in a position to show states of the Global South that they are serious about the international protection of basic human rights by making concessions in the current negotiations of the OEIGWG on the regulation of TNCs. In turn, a potential commitment of these industrialized countries might weaken the resistance against R2P of some emerging and developing countries which argue that the concept is a pretext of powerful states to interfere in their domestic affairs (Mallavarapu, 2015: 310–314; Quinton Brown, 2013: 265–269).

5 Conclusion This chapter has demonstrated that it is possible to link the two concepts of protection from atrocities and protection from human rights violations in a globalized world economy in an expedient way. Both concepts enable the operationalization of the idea of a responsibility to protect, and a linkage of these concepts would bring added value on at least two levels: First of all, a parallel implementation of various contextspecific concepts would strengthen the international human rights regime, because the protection of individuals from different forms of harm would be prioritized over the sole concentration on the prevention of outrageous crimes of bad individuals. Eventually, this encompassing approach would simply help save more lives compared to a narrow but deep approach. Secondly, progress in the implementation of one concept could potentially help water down the contestation against another one. For example, the normentrepreneurship of states of the Global South in creating the OEIGWG and in composing three drafts of an international binding instrument for the regulation of TNCs so far could be appreciated in an honest and earnest way at least by countries of the European Union. This change in attitude and behavior would possibly lead to a more substantive collaboration within the OEIGWG. In addition, the cooperative spirit of this experience could be transferred to other contexts, for example the debates

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within the UN General Assembly about the implementation of R2P. This might help create a situation where European states listen more carefully to the convictions and perceptions of states like Brazil, South Africa and India regarding the protection of human rights. This multi-agency approach to norm initiation and norm modification is a prerequisite for any advancement in the norm diffusion process of R2P (Acharya, 2015: 76) and for any serious attempt to reduce the fragmentation of the international human rights system by implementing the idea of a responsibility to protect in a more comprehensive way.

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Hultman, L., Kathman, J. D., & Shannon, M. (2016). United Nations peacekeeping dynamics and the duration of post-civil conflict peace. Conflict Management and Political Science, 33(3), 231–249. Hultman, L., Kathman, J. D., & Shannon, M. (2019). Peacekeeping in the midst of war. Oxford University Press. ICJ. (2007, February). Application of the convention on the prevention and punishment of the crime of genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement. International Commission on Intervention and State Sovereignty. (2001). The responsibility to protect. Report of the International Commission on Intervention and State Sovereignty. International Development Research Centre. Karlsrud, J. (2018). The UN at War. Peace operations in a new era. Palgrave Macmillan. Karp, D. J. (2015a). The responsibility to protect human rights and the RtoP: Prospective and retrospective responsibility. Global Responsibility to Protect, 7(2), 142–166. Karp, D. J. (2015b). The concept of human rights protection and the UN guiding principles on business and human rights. In K. Mills & D. J. Karp (Eds.), Human rights protection in global politics. Responsibilities of states and non-state actors (pp. 137–158). Palgrave Macmillan. Kleffner, J. K. (2012). The scope of the crimes triggering the responsibility to protect. In J. Hoffmann & A. Nollkaemper (Eds.), Responsibility to protect. From principle to practice (pp. 85–91). Amsterdam University Press. Linklater, A. (2011). The problem of harm in world politics. Theoretical investigations. Cambridge University Press. Luck, E. C. (2016). Getting there, being there: The dual roles of the special advisor. In A. J. Bellamy & T. Dunne (Eds.), The Oxford handbook of the responsibility to protect (pp. 288–314). Oxford University Press. Lumina, C. (2011). Guiding principles on foreign debt and human rights. UN Doc. A/HRC/20/23, 10 April 2011, adopted by the Human Rights Council Res. A/HRC/RES/20/10, 18 July 2012. Lumina, C. (2018). Sovereign debt and human rights. Making the connection. In I. Bantekas & C. Lumina (Eds.), Sovereign debt and human rights (pp. 169–185). Oxford University Press. Lund, M. S. (2009). Conflict prevention: Theory in pursuit of policy and practice. In J. Bercovitch, V. Kremenyuk, & W. I. Zartman (Eds.), The SAGE handbook of conflict resolution (pp. 287–321). SAGE Publications. Mallavarapu, S. (2015). Colonialism and the responsibility to protect. In R. Thakur & W. Maley (Eds.), Theorising the responsibility to protect (pp. 305–322). Cambridge University Press. Moyn, S. (2018). Not enough. Human rights in an unequal world. Harvard University Press. Murthy, C. S. R., & Kurtz, G. (2016). International responsibility as solidarity. The impact of the world summit negotiations on the R2P trajectory, Global Society, 30(1), 38–52. Narula, S. (2013). International Financial institutions, transnational corporations and the duties of states. In M. Langford et al. (Eds.), Global justice, state duties. The extraterritorial scope of economic, social and cultural rights in international law (pp. 114–149). Cambridge University Press. O. A. (1998, January 26). Maastricht guidelines on violations of economic, social and cultural rights. Human Rights Quarterly 20(3), 691–704. OEIGWG. (2020, August 6). Second revised draft—Legally binding instrument to regulate, in International Human Rights Law, the activities of transnational corporations and other business enterprises, accessed on October 30, 2020, https://www.ohchr.org/en/hrbodies/hrc/wgtranscorp/ pages/igwgontnc.aspx Pattison, J. (2016). The ethics of the responsibility while protecting. Brazil, the responsibility to protect, and the restrictive approach to humanitarian intervention. In K. M. Kenkel & P. Cunliffe (Eds.), Brazil as a rising power. Intervention norms and the contestation of global order (pp. 104– 126). Routledge. Peters, A. (2017). The refinement of international law: From fragmentation to regime interaction and polization. International Journal of Constitutional Law, 15(3), 671–704.

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Peters, D. (2019). Internationaler Menschenrechtsschutz durch die Wahrnehmung gestufter Verantwortungen. Verknüpfung der R2P mit der Zuschreibung extraterritorialer Schutzpflichten. Zeitschrift für Internationale Beziehungen, 26(1), 28–58. Peters, D. (2020). Menschenrechtsschutz in der internationalen Gesellschaft. Extraterritoriale Staatenpflichten und Responsibility to Protect. Nomos. Quinton-Brown, P. (2013). Mapping dissent: The responsibility to protect and its state critics. Global Responsibility to Protect, 5(3), 260–282. Ralph, J., & Gallagher, A. (2015). Legitimacy faultlines in international society, the responsibility to protect and prosecute after Libya. Review of International Studies, 41(3), 553–573. Reike, R. (2015). Libya and the prevention of atrocity crimes. A ‘controversial success’. In S. K. Sharma & J. M. Welsh (Eds.), The responsibility to prevent. overcoming the challenges of atrocity prevention (pp. 324–367). Oxford University Press. Reike, R., Sharma, S. K., & Welsh, J. M. (2015). Conceptualizing the responsibility to prevent. In S. K. Sharma & J. M. Welsh (Eds.), The responsibility to prevent (pp. 21–37). Oxford University Press. Ribeiro Viotti, M. L. (2011). Responsibility while protecting: Elements for the development and promotion of a concept. Annex to the letter dated 9 November 2011 from the Permanent Representitive of Brazil to the UN addressed to the SG, UN Doc. A/66/551-S/2011/701. Richmond, O. P. (2016). A right of intervention or a global-social R2P?. In K. M. Kenkel & P. Cunliffe (Eds.). Brazil as a rising power. Intervention norms and the contestation of global order (pp. 147–156). Routledge. Rottmann, T., & Kruckow, C. (2011, March 2011). Collection of studies and other papers concerning “landgrabbing and conflict”, EED/ Desk for Supporting Peace Engagement, accessed on 30 November 2020, https://www.google.de/url?sa=t&rct=j&q=&esrc=s&source= web&cd=&ved=2ahUKEwiM-veOn5PtAhWNyaQKHbLwDncQFjAEegQIBBAC&url=https% 3A%2F%2Fxxxivcoloquiocolmich.files.wordpress.com%2F2012%2F07%2Fland-grabbinglinks-2011.pdf&usg=AOvVaw0Tr9Uta5FPlvrcSb-RhvTo Saxon, D. (2015). The international criminal court and the prevention of crimes. In S. K. Sharma & J. M. Welsh (Eds.), The responsibility to prevent. Overcoming the challenges of atrocity prevention (pp. 119–159). Oxford University Press. de Schutter, O. (2011). The green rush: The global race for farmland and the rights of land users. Harvard International Law Journal, 52(2), 503–559. Sethi, S. P., & Schepers, D. H. (2014). United nations global compact: The promise-performance gap. Journal of Business Ethics, 33(122/2), 193–208. Sewall, S. (2015). Military options for preventing atrocity crimes. In S. K. Sharma & J. M. Welsh (Eds.), The responsibility to prevent. Overcoming the challenges of atrocity pre-vention, (pp. 161– 188). Oxford University Press. Sharma, S. K., & Welsh, J. M. (2015). Conclusion: An integrated framework for atrocity crime prevention. In Idem. (Eds.), The responsibility to prevent. Overcoming the challenges of atrocity prevention, 368–392. Oxford University Press. Shue, H. (1980). Basic rights. subsistence, affluence and U.S. Foreign policy. Princeton University Press. Stubbs, T. H., & Kentikelenis, A. E. (2018). Conditionality and sovereign debt: An overview on human rights implications. In I. Bantekas & C. Lumina (Eds.), Sovereign debt and human rights (pp. 359–380). Oxford University Press. Tacheva, B., & Brown, G. W. (2015). Global constitutionalism and the responsibility to protect. Global Constitutionalism, 4(3), 428–467. Tardy, T. (2012). The dangerous liaisons of the responsibility to protect and the protection of civilians in peacekeeping operations. Global Responsibility to Protect, 4(4), 424–448. United Nations General Assembly. (2005, September 15). World summit outcome. UN Doc. A/60/L. 1.

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United Nations Human Rights Council. (2014, July 14). Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, UN Doc. A/HRC/RES/26/9. van der Have, N. (2018). The prevention of gross human rights violations under international human rights law. Asser Press. Welsh, J. M. (2016). The “Narrow but deep approach” to implementing the responsibility to protect: Reassessing the focus on international crimes. In S. P. Rosenberg, T. Galis, & A. Zucker (Eds.), Reconstructing atrocity prevention (pp. 81–94). Cambridge University Press. Wheeler, N. (2000). Saving strangers: Humanitarian intervention in international society. Oxford University Press. Woocher, L. (2012). The responsibility to prevent. Toward a strategy. In W. A. Knight & F. Egerton (Eds.), The Routledge handbook of the responsibility to protect (pp. 22–35). Routledge. World Bank Group & United Nations. (2018). Pathways for Peace. Inclusive Approaches to preventing violent conflicts. World Bank Publications. Zartman, I. W. (2005). Need, creed, and greed in interstate conflict. In C. J. Arnson & I. W. Zartman (Eds.), Rethinking the economics of war. The intersection of need, creed, and greed (pp. 256–284). Johns Hopkins University Press.

Daniel Peters (Dr.) is lecturer at the Federal University of Applied Administrative Sciences, Departmental Branch of the Federal Police, in Lübeck. In 2018 he graduated with a PhD from the Helmut Schmidt University/ University of the Federal Armed Forces, Hamburg, with a thesis on Basic Human Rights Protection through the Exercise of Graded Responsibilities. His research focus is on human rights, political extremism, UN-peacekeeping and conflict prevention.

R2P in Practice

R2P and Norm Localization: China’s Influence on the Development of R2P Johanna Polle

Abstract This chapter examines how the People’s Republic of China successfully influenced the development of the R2P norm from 2001 to 2005, based on its national understanding of state sovereignty. It analyzes speeches and statements by the Chinese delegation to the United Nations and official Chinese foreign policy papers. China “localized” and reconstructed the R2P concept drawing on local ideas and traditions and then advanced a respective understanding at the transnational level. China succeeded in distancing itself from the original draft of the “norm entrepreneurs” and portrayed R2P as a Western attempt to interfere in the internal affairs of sovereign states. China weakened the substantial value of the norm but strengthened the referential value for countries in the Global South who expressed similar concerns about R2P.

1 Introduction In the International Relations (IR) norms research literature, the Responsibility to Protect (R2P) is often cited as a successful example of a “top-down” process of norm diffusion, in which the norm diffuses from the transnational to the local level. The so-called “first debate” of constructivist norms research assumes transnational actors (“norm entrepreneurs”) are the central subjects in norm dissemination, since they “teach” universal norms to local actors (Cortell & Davis, 2000; Finnemore, 1993; Risse et al., 1999). The latter would have a subordinate role. Their options for action would be limited to either accepting a new norm, which makes them “norm followers”, or rejecting it (Finnemore & Sikkink, 1998). This chapter was firstly published in German (Polle in Hansel & Reichwein 2020). The author thanks Alexander Reichwein, Mischa Hansel, Michael Staack, Antje Wiener, and Pinar Ulumaskan for their helpful comments on previous drafts of this chapter. J. Polle (B) University of Hamburg, Hamburg, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2023 A. Reichwein and M. Hansel (eds.), Rethinking the Responsibility to Protect, Contributions to International Relations, https://doi.org/10.1007/978-3-031-27412-1_6

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During the development process of R2P, involved actors lively discussed the content and consequences of the norm for several years, for example at regional roundtables and within the United Nations (UN). These discussions continued even after R2P had already been formally ratified (World Summit, 2005). Developing countries in particular reacted skeptically to the norm, since some perceived it as a Western construct. However, this constituted neither a perfect acceptance nor a complete rejection of R2P (see Morada, 2012; Prantl & Nakano, 2011; Teitt, 2011; Williams, 2009). Therefore, it makes sense to consider a wider range of reactions by local actors to R2P than suggested by the first debate of IR norms research. This chapter contributes to the second debate on norms in International Relations. Building on the concept of “norm localization” (2004, 2009) by Amitav Acharya, it examines the interactive dynamics happening between the transnational and local levels during the process of diffusing international norms. Acharya describes how practices of regional actors, serving to embed transnational norms in their traditional system of norms, contribute significantly to successful norm diffusion at the local level. Building on this idea, Jochen Prantl and Ryoko Nakano suggest that transnational norms can first be “localized” regionally and then returned to the global level in a feedback mechanism. Through this process, local actors could shape transnational norms on the global level (Prantl & Nakano, 2011). This chapter discusses whether a regional understanding of a norm can influence an international norm and, if so, how exactly this may happen. For this purpose, I first outline the theoretical framework for the practices of “norm dynamics”, a term under which I subsume the interactive processes of norm contestation, norm diffusion, norm localization, and norm re-dissemination. In contrast to the conventional norm spiral perspective (Risse et al., 1999), which describes the gradual acceptance and internalization of “finished” transnational norms at the local level, I regard norm dynamics as a kind of cycle. By this I mean that a norm can be repeatedly challenged, changed, and then redistributed in modified form at different levels (transnational, regional, etc.) and at different times. Then, I apply these theoretical findings to my empirical case, namely China’s influence on the R2P, as took place between the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS) and the World Summit Outcome Document (WSOD) 2005 and beyond.1 The chapter proceeds in two steps. First, it finds that the People’s Republic of China (PRC) influenced the R2P standard and, second, it examines how China was potentially able to do so. Initially, China reacted very strongly to the proposed standard and its behavior thus represents a suitable case study. At the same time, it should be noted that other actors also impacted the development of the R2P norm. For example, China’s skepticism and protest against the R2P largely coincided with the attitudes of other countries of the Global 1

Although this study focuses on the period between the ICISS report (2001) and the WSOD (2005), Chinese statements in the following years also comprise their main points of criticism. Since this illustrates the continuity and seriousness of China’s criticism, I draw on them as additional support to my argument.

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South as well as the “BRICS” group consisting of Brazil, Russia, India, China, and South Africa, which expressed similar concerns about the new norm (Stuenkel, 2014: 7–9). Regarding the literature on China’s hegemonic aspirations, I expect China was able to influence the R2P norm due to its increasingly important role in international relations (Liang, 2007). According to the first debate in norm research, one may also expect the substantive value of the R2P norm to have weakened because China did not accept the original content of the norm. With a retrospective research design, I then analyze how discursive practices influenced the meanings of the R2P norm. As data, I draw on speeches and statements by the Chinese UN delegation (from 2001 to 2009), which are publicly available in English, supplemented by Chinese foreign policy white papers. By means of these documents, one can trace how international standards develop and change; how agents distance them from or linked them to existing norms and meanings, or also “meanings-in-use”, during interactive processes (see Weldes & Saco, 1996; Wiener & Puetter, 2009: 176). The inquiry finds that the PRC successfully influenced the development of the R2P norm based on its national understanding of state sovereignty. China succeeded in distancing the R2P norm from the original concept of the “norm entrepreneurs” and portrayed it as a Western attempt to interfere in the internal affairs of sovereign states. This procedure worked, because China effectively mobilized the collective memory of other former colonized states and was able to suggest the West was now trying to intervene in the national concerns of other states, just as it did in colonial times. At the same time, China gained credibility and trust by presenting itself as the spokesperson for developing countries and as the protector of the UN Charta, which emphasizes the principle of state sovereignty. As part of this process, China weakened the substantive value of the norm, but strengthened the referential value for developing countries and formerly colonized states, especially in Asia and Africa (compare Bellamy, 2015: 161f). A norm localization perspective supplements the existing literature on R2P, as it represents an alternative model to the established top-down approach and thus contributes to a more complete understanding of the creation and development process of this important norm. Additionally, considering globalization and the associated structural changes, for instance in the shift of global power relations, the role of non-Western actors should be examined more in the literature, since their international influence can be expected to increase in the long term (see Florini, 2011; Schweller & Pu, 2011; Stuenkel, 2014; Wunderlich, 2018). In that respect, this study promises useful insights into the possibly competing relationship between Western and non-Western ideas (compare McCormack, 2010), understandings, and meanings of norms. These insights could similarly apply to other cases of norms for international cooperation, for example different approaches to development aid and conflict prevention. The chapter is structured as follows: In the following part, I will present the first and second debates of constructivist norm research, in particular the central concepts of contestation, diffusion, localization, and re-dissemination of norms (Sect. 2). Then,

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I briefly describe the R2P norm and outline China’s skeptical reaction to it (Sect. 3). The subsequent section explains China’s localization, and interpretation of the R2P norm (Sect. 4). The conclusion evaluates the implications of the analysis for IR theory and for the practice of developing international norms (Sect. 5).

2 Constructivist Norms Research According to a widely used definition, norms are shared expectations of a standard of appropriate behavior for a collectivity of actors with a given identity (Finnemore & Sikkink, 1998: 891; cf. Checkel, 1999: 83; Klotz, 1995: 14). Due to their dual quality, norms can define or “constitute” an identity (March & Olsen, 1998: 952) as well as regulate or structure (Wiener, 2007: 5) which action would be appropriate for a given identity (Katzenstein, 1996: 5). Norms are created and changed in discourse through social practices, but at the same time they become visible in these practices (Acharya, 2004: 240; Wiener, 2004: 201). Within constructivist norm research, there are two prominent debates. In the following, I will introduce the first debate and, at the same time, point out some of its major weaknesses. Having established my critique of the first debate, I then present the approach of the second debate and introduce the key concepts of norm contestation, norm diffusion, norm localization, and norm re-dissemination. All four concepts are within the overarching concept of norm dynamics.

2.1 The First Debate: Top-Down Perspective on Norms The first debate has four main characteristics. First, contributions to the first debate analytically prioritize universal norms as part of international processes. It is commonly assumed that universal norms are attractive. Therefore, the first debate work tends to operate on the assumption that universal norms will spread and prevail against relevant local norms (the so-called “spill-over effect”).2 In extreme cases, this results in a normative distinction between “good” universal and “bad” local norms (Acharya, 2004, 2009) . Based on the idea that certain norms are universally valid and desirable, the first debate misunderstands, or at least underestimates, the contextbound nature of norms, i.e. that norms are culture-, religion- or tradition-specific and thus often also regionally determined. 2

An example for this may be March and Olsen’s argument that “democratic norms are contagious” (March & Olsen, 1998: 962). Since they are highly attractive, they would spread more or less automatically when democracies and countries without a democratic tradition are in contact with each other (ibid.). Yet, keeping in mind the countless efforts of countries with “secure democratic tradition”, who are however not further specified, to enhance democracy in (post-)conflict countries such as Iraq or Afghanistan the “contagious” quality of democratic norms seems less persuasive.

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Second, first debate norms research considers transnational “norm entrepreneurs”, states, or social movements as the main actors in the process of norm diffusion, who communicate on a horizontal level, for example in the form of a discussion between different UN bodies. These entrepreneurs would “teach” the new norms to local actors (see e.g. Finnemore, 1993). By abandoning traditional norms in favor of the new ones, norm diffusion is viewed as the result of adapting national practices to external (transnational) ideas (Acharya, 2004: 251). However, this hierarchical topdown approach neglects the manifold ways in which local actors contribute to the creation and dissemination of norms (Acharya, 2004: 242). Furthermore, such a perspective omits the relevance of existing power relations. The first debate does not acknowledge to what extent the power and thus the influence of norm entrepreneurs build on convincing other agents of their expertise in this area. In order to bring their norm into operation successfully, norm entrepreneurs rely on having the local actors believe the new norm would actually facilitate the promised benefits in the future. Third, the main focus is on the conversion of norms, precisely on describing how two competing international norms relate to one another (Florini 1996 cited in Acharya, 2004: 243). First debate norms scholarship may recognize the contestation of norms as possible, but do not study the underlying process any further. In addition, it views resistance to universal norms as illegitimate or even immoral (Acharya, 2004: 242). In the analysis of the diffusion and contestation of norms, it expects a dichotomous result: either acceptance or rejection. Fourth, the first debate assumes norms would achieve a certain stability once they are formally institutionalized. According to Finnemore and Sikkink’s “norm life cycle” model (1998), the last phase of the implementation process—internalization— takes place when norms are no longer publicly discussed, possibly challenged, and are part of the daily routine. Internalization would take place when norms are no longer perceived as new or exogenous, but as natural and normal (Finnemore & Sikkink, 1998: 895). Contrary to Finnemore and Sikkink, one might argue that a norm always retains a certain flexibility or instability, even after it has been institutionalized. While in the understanding of individuals it may manifest itself as “natural”, its meaning can still continue to change. Likewise, norms can always return to the public debate, as the R2P debate shows. In summary, my analysis views the first norm research debate critically, due to its underestimated contextuality of norms, the omitted interplay of norm diffusion and power, the ignorance toward the role and influence of local actors as well as the misconstrued inherent, ongoing flexibility of the meaning of norms. That is why, this chapter argues in the spirit of the second debate.

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2.2 The Second Debate: Norm Recipients and Norm Dynamics Instead of assuming a hierarchical top-down process, the second debate on norm research advocates a pluralistic conception of norm development. She emphasizes that norms are flexible, context-specific, and always, in principle, contested (Wiener, 2004: 200). The focus is on examining how global and regional norms relate to one another and to what extent regional, political, organizational, and cultural variables and agents influence the understanding of global norms (Acharya, 2004: 243; see also Checkel, 1999, 2001; Legro, 1997). In contrast to the term “norm follower”, which implies that there is only one correct, legitimate reaction, namely following the norm, this chapter uses Acharya’s term norm recipient. By comparison, a norm recipient (here: the Chinese state) has more options for action available. For example, the recipient can follow the norm or react and give positive or negative feedback. In this respect, other agents do not necessarily have to be convinced as strongly of a norm as the original norm entrepreneurs are. Interactive “norm dynamics” between agents take place by means of four processes: Norm contestation, norm diffusion, norm localization, and norm redissemination. Due to the ongoing globalization, contestation of norms is steadily becoming more common. As a result of increasing transnational interactions, overlaps, and entanglements between normative orders also grow in number and density. Each of these normative orders may hold recognition and legitimation within its spheres of influence, but if different orders encounter and possibly claim the same operational area, they may clash and trigger conflicts (March & Olsen, 1998: 946f). This can be the case both between international norms (see Wiener & Puetter, 2009) and between international and national norms (see Acharya, 2004). The broader the scope of validity and application of the norm, the more contestation can be expected (Wiener, 2007). The cultural environment also determines the extent to which agents challenge norms. If environments are culturally similar or even largely similar, actors will interpret a norm in a similar way and ascribe similar meanings to it (Checkel, 1999: 86; Wiener, 2004: 200). Accordingly, we can expect that China’s interpretation of a transnational norm is closer to that of Asia-Pacific countries than, for example, of European countries. However, new norms can also lead to rejection or resistance if they are perceived as contradicting existing historical or cultural normative structures. In some parts of Asia, for instance, Western norms are frequently contrasted with Asian values and rejected as being too culturally specific and foreign. For example, China often emphasizes how important state sovereignty is to the Asian region, in order to particularize and invalidate Western human rights, which are commonly portrayed as universally valid in the West (Wu, 2010: 89). Consequently, achieving consensus on the content of a norm in transnational bodies such as the UN is highly challenging. In the end, the acceptance of a new international norm increases when it is perceived as the creation of a comprehensive collection of agents and not as the product of a small, homogenous group (Acharya, 2013: 468).

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Regarding norm diffusion, the second debate stresses the relevance of regional agents, points out that diffusion does not exclusively happen in a one-sided top-down process, and acknowledges the potential of regional norms to influence transnational norms. Moreover, it holds that, instead of enforcing conformity by means of socialization, it would be more effective to emphasize the coherence of the new norm with existing normative structures. In this way, the new norm would be perceived as authentic, legitimate, and culturally coherent (Reinold, 2013: 42). This agreementbuilding process (“congruence-building”) is a mainly cognitive act in which local actors re-interpret and represent external norms through discursive strategies such as “framing” and “grafting” (Acharya, 2004: 269). Norm advocates design certain frames of meaning through “framing” by using language that “names, interprets and dramatizes” content (Finnemore & Sikkink, 1998: 268), allowing transnational norms to appear local (Acharya, 2004: 244). During the “grafting” process, new norms are linked to existing norms with similar content and thereby institutionalized to a certain extent (Acharya, 2004: 244 in reference to Price, 1997). However, framing and grafting practices serve to adapt and enable external norms to be integrated into local norm systems. They shed little light on the actual dynamics between transnational and regional actors. That is why Acharya proposes the more complex concept of norm localization that combines both strategies for tracking and analyzing norm diffusion. After regional actors have “received” a transnational norm, they can—according to Acharya—actively reconstruct and deconstruct this external norm through the process of norm localization using discursive practices such as framing and grafting. This allows a bond between the new norm and already prevailing local ideas and practices (Acharya, 2004: 240–245). Transnational norms are linked to regional beliefs. Local practices are adapted and finally embedded in local systems of norms. Acharya identifies three main factors impacting whether a transnational norm can be adopted unaltered or whether it can be successfully localized and reinterpreted on a regional or national level. One of these factors for a successful localization is the demand for new norms. Localization may be easier if previous local norms have lost their legitimacy or effectiveness, e.g. due to changing contextual or historical conditions. Second, a norm is more likely to be localized if the norm recipients have a strong sense of identity, including their own norms and practices. Then, they could reconstruct the norm in terms of their specific needs and culture. In addition, the localization potential would depend on the strength of existing local norms. If these are strong, new external norms would be localized rather than accepted in its entirety, without any modifications. Thirdly, local norm agents would need sufficient influence in the relevant discourse to be on a par with global norm entrepreneurs or to surpass them. Influence would mean, for example, that local agents seem more qualified or more credible to the target audience as being than their exogenous counterparts. Credibility in turn depends on the social context and reputation, or whether actors are seen as trustworthy “upholders of local values and identity” (Ibid.: 247ff). Accordingly, a society would be more likely to accept norms when they were introduced by agents who have a similar history, a common set of values, or a related culture. For mobilizing support and

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gaining influence, it can be helpful to highlight commonalities, for example collective experiences. Jochen Prantl and Ryoko Nakano (2011) proposed an additional localization step, namely norm re-diffusion or “norm diffusion loop”, as the authors call it. The authors supplement the deconstruction and reconstruction of a norm by a feedback mechanism, through which a localized norm can be fed back into the original transnational discourse—and ultimately prevail there as an alternative. Acharya suggests a similar thought of return in his “norm circulation” concept (Acharya, 2013: 469). This important addition allows us to argue that global norms have a distinct regional and local dimensions (Prantl & Nakano, 2011: 1f).3 The authors also note that local feedback on a global norm could change the properties of the norm in a way that previous discrepancies between the global and regional levels grow smaller. Consequently, a larger and more diverse group of agents could approve of the norm (Acharya, 2013: 469; Prantl & Nakano, 2011; see Wunderlich, 2018). This is the understanding of norms guiding the following analysis.

3 R2P and Its Contestation by China The following discussion will show that China has succeeded in successfully “localizing” the R2P through discursive practices, by reconstructing it at the local level in a specific political and historical context, hence redefining its meaning. Against the backdrop of these meanings, China then appealed for changes at the transnational level. China led the process of distancing the R2P norm from the original draft of the Western norm entrepreneurs (the report of the International Commission on Intervention and State Sovereignty, ICISS). It succeeded at reconstructing R2P, so it would be closer to its own national understanding of state sovereignty.4

3.1 The Responsibility to Protect R2P was a reaction to a call by UN Secretary-General Kofi Annan. Under the impression of the Kosovo war (1999), Annan had requested a systematized and formalized norm, on the basis of which the international community would be able to conduct humanitarian interventions. This norm should provide guidance in cases of most 3

Since the norm recipients hold an even more active role in the development of norms, I shall henceforth refer to them as “norm-shapers”. 4 My analysis builds on the work by Prantl and Nakano (2011), who focused on how China and Japan implemented R2P. However, I take a more detailed look at the Chinese case, by analyzing the discursive contributions by China within the UN context. While the authors furthermore sought to use R2P for illustrating the gradual Chinese integration into the Western liberal order, facilitated by “social influence” (Prantl and Nakano: 11f), this inquiry is rather interested in Chinas contestation of R2P.

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serious human rights violations and other crimes defined under international law, such as those which occurred during the violent conflicts in Rwanda (1994) and Srebrenica (1995). Since containing conflicts and instabilities within state borders is challenging, especially in an increasingly globalized world, international agents justify external interventions in domestic state affairs with prospects of conflict resolution, human rights, and economic stability (Brock, 2005, 2008; March & Olsen, 1998: 946). R2P itself is not binding under international law. However, in order to enable the international community to intervene in stated cases, the norm entrepreneurs attempted to rewrite one of the core principles of international law: State sovereignty. State sovereignty is commonly understood as a collection of international rights and obligations anchored in international law. Since the Peace of Westphalia (1648), the principle of state sovereignty has structured the international arena by drawing borders between a state and the rest of the world (Carlson, 2005: 1). The UN Charter formulates and formalizes the principles of state sovereignty and non-interference— i.e. a prohibition of foreign intervention—in Chapter I in Article 2, Paragraph 1, and Paragraph 7.5 State sovereignty consists of four main components (Carlson, 2005: 121): 1. Exclusive control of a confined territory,6 2. sovereign authority to rule in matters of the state, due to which external interferences in internal state affairs are illegitimate, 3. jurisdictional sovereignty over the country’s residents, 4. self-determined economic system. R2P defines state sovereignty differently: It ties sovereignty to the protection of human rights. This means it is no longer the exclusive right of a state to determine security and legal matters within its territory. Instead, it is the shared responsibility of the international community to determine whether the state fulfills its duty of protecting its citizens, including minorities. If a state does not do this because the respective state lacks will or ability, it is the responsibility of the international community to intervene. The R2P norm, however, takes a broader perspective than mere military intervention. It consists of three core themes: the “responsibility to prevent”, the “responsibility to react”, and the “responsibility to rebuild” (ICISS, 2001a: XI). Nevertheless, the ideas surrounding humanitarian intervention remained the most conspicuous and, simultaneously, most controversial innovation, in the way they touched on and sought to modify the traditional Westphalian conception of state sovereignty. 5

Art. 2.1 “The Organization is based on the principle of the sovereign equality of all its Members”. Art. 2.7 “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII” (Charter of the United Nations, https://legal.un.org/repertory/art2.shtml, last accessed April 30, 2021). 6 For a long time, the territorial aspect has been the crucial element for the recognition of statehood, as a status legitimized by international law (Carlson 2005; Crawford, 2012).

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The R2P norm demonstrates in an excellent manner that norms are contextual and not universal, because it transformed over time and not all groups of states welcomed it equally enthusiastically in the beginning. The first official R2P draft, published in 2001, was created within the framework of the International Commission on Intervention and State Sovereignty—a committee assembled by the Canadian government (ICISS). The ICISS report was particularly controversial among developing countries and former colonial states (Williams, 2009: 402). For one, the commission consisted of an ad hoc network of experts, so the concept was formulated outside the formal international institutions. Even more so, these experts came mainly from the Anglo-Saxon region, while southern Africa and Asia were hardly represented in the commission.7 The main criticism of the report, however, was not about the composition of the committee, but about the content. The report built on two premises: (1) State sovereignty implies responsibility, and the primary responsibility of protecting the population lies with the state itself; (2) Where a population suffers considerably and the responsible state is unwilling or unable to stop it, the principle of non-intervention gives way to the principle of responsibility to protect (ICISS, 2001a: XI). As a result, the international community can intervene if necessary. The second premise was particularly controversial because it replaces the principle of state sovereignty with the principle of non-interference. Instead, it claims the recognition—or dismissal—of state sovereignty depends on the state’s performance of protecting its own population from gross human rights violations (Teitt, 2011: 302). For the norm entrepreneurs, i.e. the ICISS Forum and many UN member states, the norm meant regulating humanitarian interventions in order to be able to protect people more efficiently from serious human rights violations. For the PRC and several other countries from the Global South, including India and Brazil, this R2P version meant an attempt by Western states to soften and thus weaken the principle of state sovereignty (Stuenkel, 2014). Therefore, there was hardly any normative resonance in many developing countries, the designated “norm followers”, regarding the reformulation of state sovereignty as responsibility (Checkel, 1999). Another major controversy in this first draft of the R2P concerned the authorization of military force. This power traditionally lies with the United Nations Security Council (UNSC), whose permanent members, the US, Russia, the UK, France, and China, have a veto right. The first version of the ICISS report, however, considered expanding the power to make decisions on the use of military force beyond the UNSC. The UN Security Council should continue to have the “primary” authority but share it with the UN General Assembly (GA) and selected regional organizations (ICISS, 2001a: 48–54). Since such a new regulation would have invalidated the Security Council’s monopoly on authorizing military force including the veto power of its 7

It should be noted that there were two Commission members from North Africa, from Egypt and Algeria. Yet, from southern Africa only Dr. Mamphela Ramphele, Managing Director of The World Bank Group and former Vice-Chancellor of the University of Cape Town was involved. His Excellency Dr. Surin Pitsuwan, former Minister of Foreign Affairs of the Kingdom of Thailand was the only Commission member from the Asian region (ICISS, 2001a: 82).

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permanent members, such as China. Consequently, the PRC responded to this first R2P version with considerable resistance (Qin, 2009: 101; Tiewa, 2012: 156f).

3.2 China’s Reaction to the R2P Concept In the following I will show that China was very critical of the R2P norm from the very beginning. Over the course of several years, China has consistently brought forward its concerns, not only in response to the Regional Roundtables and the ICISS report (2001b), or to the High-level Panel Report (2004) but also to the World Summit Outcome Document (2005). The Chinese delegations repeatedly emphasized that potential interventions must always be in harmony with the UN Charter and Chapter VII measures (China Position Paper, 2005; MFAPRC, 2003; Shen, 2001; Wang, 2001, 2005a; Zhang, 2005c). They also must be authorized by the UN Security Council (Wang, 2001, Zhang, 2005a, 2005b), where China is a permanent member and thus holds a veto-right. Decisions should always be made in a neutral and impartial way (Teitt, 2011: 300). Furthermore, one should not forget to differentiate between humanitarian interventions and humanitarian aid, also in terms of terminology. While interventions are illegitimate, humanitarian aid would be necessary in extreme cases as long as the sovereignty and territorial integrity of the country concerned is respected (cf. Carlson, 2005; Teitt, 2011). In general, however, political, diplomatic, and economic preventive measures should be preferred (e.g. Shen, 2001; Wang, 2005a; Zhang, 2005a). Evidently, China deconstructed the R2P norm and then reconstructed it through its feedback to the norm entrepreneurs. By publicly stating points of criticism, China did not only express discontent about the current state of the norm, but ultimately revealed what a modified future version of R2P could look like which would be more acceptable to Beijing.

3.2.1

The “Regional Roundtable” in Beijing

After the first, rather exclusive, ICISS meeting in Canada (2001), the ICISS held regional roundtables in many cities around the world to discuss the proposed R2P concept at the local level. At this point in time, the conceptual focus was still on the right or international responsibility to militarily intervene in a state if necessary. This was incompatible with the Chinese understanding of sovereignty (Prantl & Nakano, 2011: 10–13; cf. Evans, 2008). The Chinese criticism expressed during the roundtable in Beijing was unmistakable and was summarized, among other things, in another document supplementing the ICISS report (The Responsibility to Protect: Research, Bibliography, Background) (see ICISS, 2001b). The Chinese delegation emphasized that from a theoretical perspective, “the conceptualization of humanitarian intervention is a total fallacy” (ICISS, 2001b, Part III Background: Regional Roundtables and National Consultations: 392). The principle of non-violence must

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always apply, except in cases of self-defense according to the UN Charter (Article 51) and to restore international peace (Chapter VII) (ibid.; Teitt, 2011: 300). Furthermore, the claim to violently intervene for moral or conceptual reasons to protect human rights is questionable and dangerous, as these judgments are often controversial. In the past, “certain Western powers” would have “played with noble principles to serve their own hegemonic interests” (ICISS, 2001b: 392). The Chinese referred to the American policy toward apartheid in South Africa and the Rwanda conflict (1994) as well as NATO’s intervention in Kosovo (1999) (ICISS, 2001b: 392) as examples of Western double standards in the case of human rights violations. China was concerned that military force might be used similarly inconsistently regarding R2P (cf. Wang, 2005a). Still, in the official summaries of the roundtables, China’s objections to the concept and reluctance to endorse the principle were ultimately “glossed over” (Teitt, 2011: 300f).

3.2.2

The ICISS-Report

As a result of the regional roundtables and the consensual ratification by the international commissioners, the commission announced the final ICISS report 2001 provided a crucial step toward legitimizing military interventions against state authorities. Accordingly, the ICISS report triggered controversial debates, especially on the matter of humanitarian intervention. During the subsequent UN discussions (2001– 2005), China continued its resistance to non-consensual military interventions and repeatedly emphasized its disapproval of interventions without the authorization of the UNSC; the only international body with decision-making power regarding military interventions (Wang, 2001). In UN statements, Chinese delegates stressed the R2P was lacking in strength, since it remained a concept without international legal status, and military interventions always had to be authorized by the UNSC (Bellamy, 2009: 67). The Chinese advocated for a strict interpretation of the R2P, regarding state sovereignty as sacrosanct. The primary responsibility of protecting their people from genocide, war crimes, ethnic cleansing, and crimes against humanity would lie with the respective state governments, not the international community. Therefore, the international community should respect that it is up to the government to assess whether their population, or parts of it, is in danger or not (Liu, 2008, 2009). States should cooperate in creating a catalogue of precise criteria determining when a national government shall be considered reluctant to protect its own people or fails at doing so and no longer be capable of funding protective measures. There were also explicit objections to issuing a UN mandate for R2P to protect civilians in cases, where the UNSC lacks consensus on the necessity of such a step or when the use of force was not approved by the state concerned, backed up by regional organizations (Shen, 2001; Wang, 2001; cf. Liu, 2009). Instead, China emphasized the importance and responsibility of the international community to prevent mass atrocities by helping states to prevent conflicts (Shen, 2001; cf. Morada, 2012: 137). In addition, the UN and the international community

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should act in accordance with international law and respect the core principles of the UN Charter, e.g. humanitarianism, neutrality, and justice as well as state sovereignty, territorial integrity, and national unity (Shen, 2001; cf. Liu, 2009; Wang, 2001, 2005b). Decisions should also be made on a case-by-case basis because conflicts are complex and unique (Wang, 2001, 2005a, 2005b; Zhang, 2005a). Despite these objections, China nevertheless confirmed the R2P concept at the World Summit in 2005 and in the corresponding UN documents (Pang, 2009: 238). Where did this change of mind come from?

3.2.3

The High-Level Panel Report

Kofi Annan, then UN Secretary-General, initiated the “High-level Panel (HLP) on Threats, Challenges and Change”. The HLP met in September 2003 and published the final report “A more secure world: Our shared responsibility” in December 2004. Leading up to the HLP, the ICISS had made progress on the panel representatives and the content of the R2P norm. Overall, the panelists represented a wider range of countries, including from the Global South; they came from China, Brazil, India, Tanzania, Ghana, Pakistan, Egypt, and Uruguay (UNSG, 2004: 117). As the final report reveals, the panel also paid more attention to the countries of the Global South, including China, and signaled sympathy for their skepticism and concerns about the R2P concept. For example, the report referred to using a collective security concept that addresses the security concerns of all states, rich or poor, weak or strong. In addition, the focus should be on how states would be able to handle problems well themselves. Furthermore, the report includes some of the Chinese remarks, e.g. the importance of conflict prevention, also in the context of economic development and security (UNSG, 2004: vii). In addition, the report confirmed the central role of the UNSC and assured the R2P norm would not affect its decision-making power, but only it worked to the extent that it could address security threats more effectively in the future (UNSG, 2004: 3). In this respect, the final report confirmed consensual decisions within the Security Council. However, it scarcely considered criticism of violent interventions. It says, for example, that threats could be answered with sanctions and mediation measures and if all other means fail, it could be necessary and legitimate to use “force” (UNSG, 2004: viii). The report also lists and specifies criteria for military intervention which were later removed from the World Summit Official Document (WSOD) in 2005, because many states protested them.

3.2.4

The World Summit Outcome Document

The WSOD (2005) differs in several ways from the previous ICISS report. The modified version of the R2P concept contains many of the Chinese remarks, suggesting China successfully influenced the norm development from 2001 to 2005.

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Paragraphs 138 and 139 of the WSOD did not include any specific, binding criteria for the use of military force by the international community in humanitarian emergencies. Instead, the WSOD emphasized it is the national sovereigns who would hold the primary responsibility of protecting its population within its country’s borders. In addition, according to the WSOD, the UNSC must authorize all measures before any intervention can take place within the R2P framework (MFAPRC, 2003; Zhang, 2005a, 2005b, 2005c). The UNSC should not be bypassed in the decision-making process as the ICISS document originally intended (China Position Paper, 2005; Wang, 2005a). Furthermore, the World Summit omitted any of the previously laid out specific criteria for humanitarian interventions. Military operations in other states that go beyond the framework provided by international law and the provisions of the UN Charter as foreseen by Article 2 and other principles, which could possibly lead to unilateral actions by individual states, were also rejected. Instead, the document reaffirmed the normative obligation of the international community to support conflict prevention measures, included claims for making decisions on a case-by-case basis, and supported the idea of cooperating with regional organizations (Wang, 2005a). It did not further specify any additional obligations of the UN member states in the event of an R2P intervention (Prantl & Nakano, 2011: 4ff). By insisting on the UNSC having the exclusive authority to make decisions on and set up mandates for humanitarian interventions, China safeguarded its own power to stop interventions in critical cases through its veto as a permanent UNSC member (Prantl & Nakano, 2011: 13). At the same time, Chinese delegates emphasized that any further discussions about the R2P concept should take place in the UN General Assembly and not just in the Security Council, since the norm would ultimately affect all UN members (Liu, 2006, 2007; Wang, 2005a). The WSOD also mentions this aspect. Through this move, China managed to circumvent unwanted final resolutions and “veto embarrassments” in the UNSC (Prantl & Nakano, 2011: 13), as well as to signal other GA member states that feel marginalized, China would be on their side and would want to involve them in the process. The changed language and altered topical section present two additional differences between the ICISS report (2001a, 2001b) and the WSOD (2005). Although both reports dealt with the same issue, namely interfering in internal state affairs in the event of serious human rights violations, the ICISS report was still mainly about “military interventions”, while the WSOD mainly spoke of “prevention”. The latter particularly prevails in Southeast Asia and African regions (Morada, 2012). At the same time, Annan moved the R2P concept, which was originally supposed to be a norm for military operations, in the “In Larger Freedom” report to the thematic section “Rule of Law” (Annan, 2005: 35)—a deliberate act serving to secure the approval of countries potentially affected (Teitt, 2011: 302). The Chinese government, which wanted to isolate the R2P from military operations from the beginning, confirmed this. In headlines of official Chinese UN documents, e.g. the “Position Paper on UN Reform” (2005), R2P was also moved from “Security Issues” to “Role of Law, Human Rights and Democracy”.

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Regarding the concerns of many countries from the Global South about the original R2P norm, which was predominantly established by Western states, it was in the interest of R2P supporters to make modifications, clearing up any such doubts in order to achieve their objective: Ratification. However, the new language and different topical sections also altered the normative focus, namely from an intervention against a state to the protection of the population. The meaning of the norm changed. While the WSOD already used a less interventionist language than the ICISS report, the content of the 2009 “report on the implementation of Responsibility to Protect” was distanced further from military interventions (Prantl & Nakano, 2011: 5). The focus was now on specifying the three pillars of R2P which had merely been outlined in paragraphs 138 and 139 of the WSOD: 1. The state’s responsibility is to protect people within its territorial borders. 2. The possibility of obtaining international support, especially as a preventive measure, so that the state would be able to meet their pillar one responsibility. 3. The responsibility of the international community is to intervene swiftly and decisively (UN Secretary-General, 2009: 2). Since the first pillar now emphasized the responsibility of the state as paramount, it moved further away from the ICISS proposal of a responsibility shared within the international community (third pillar). Instead, the first pillar was tantamount to confirming Articles 2.1 and 2.7 of the UN Charter (see Prantl & Nakano, 2011: 13). Having reconstructed this process, we see that China was only marginally involved in the first official norm-building process in the ICISS forum. Still, China did not only seize the opportunity later on (between 2001 and 2005) to subtly yet actively challenge the R2P concept. It also contributed to shaping the definitions as well as understandings of sovereignty and responsibility in a different direction. After the WSOD (2005), China continued to contest the R2P norm and continually reiterated its main concerns: The role of the state, the UN Security Council, and state sovereignty. Due to these persistent endeavors, China has over the years succeeded in anchoring its own understanding of state sovereignty in key aspects of the R2P norm—as it now exists. Two key principles of Chinese foreign policy, namely a conservative understanding of state sovereignty and non-interference, were confirmed and even linked to the R2P concept. How could that happen?

4 China’s Localization and Reinterpretation of the R2P Norm How exactly did China succeed in reinterpreting and thus changing the R2P norm? The following section explores this question. It argues that China presented the original R2P concept as an attempt by the West to interfere in national affairs of sovereign states once again just like it has done in earlier times, for example during the colonial era. In this respect, China discursively moved the R2P norm into the local context of earlier intervention experiences especially in the Asia-Pacific region.

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Many countries in the Global South shared these experiences. At the same time, China constructed its own position as a rising great power, as a leading developing country and protector of the existing international order, particularly regarding the principles of state sovereignty and self-determination.

4.1 The National Understanding of State Sovereignty of China Looking at the historical development of the Chinese understanding of state sovereignty reveals why China initially reacted so indignantly to the R2P concept. The official Chinese understanding of state sovereignty has traditionally been very conservative even though it has become somewhat more flexible since the 1970s (cf. Carlson, 2005). China frequently refers to the overriding principles of state sovereignty and non-intervention to protect itself against the dangers of “neocolonialism” and interventionism by other superpowers (Acharya, 2005: 103; China Position Paper, 2002a, 2002b). One can trace this position back to China’s traumatic colonial experiences during the so-called “Century of Humiliation” (1839–1945); a time that shaped the national understanding of state sovereignty significantly.8 During this time, foreign imperialist powers led by Great Britain, France, Germany, Russia, and Japan intervened several times on China’s territory and (semi-) colonized the country. In particular, the Opium Wars (1839–1842 and 1856–1860) show how China was repeatedly forced to agree to the extensive demands and conditions of foreign powers.9 After the end of the Second World War, the newly founded People’s Republic of China gradually distanced itself from the international community and, simultaneously, firmly anchored the principles of state sovereignty and non-interference in its foreign policy (Pang, 2009: 239). Only in the early 1990s, this posture gradually changed. Although a static understanding of territorial and legal authority remained, China’s economic sovereignty became more flexible (Carlson, 2005: 48). Beijing gradually opened up to the possibilities of globalization and national economic development advanced rapidly. At the same time, there was still skepticism about external (Western) interference in Chinese internal affairs. In the 1990s, official Chinese documents expressed concern that “some countries” falsely pursued “hegemony” and “power politics”, which would undermine the sovereignty of smaller states and impose the will of the “strong” on weaker states (Gill, 2007: 4). During this time, some Chinese analysts even warned the public that the restriction of state sovereignty in the context of globalization was

8

“China was subject to aggression and humiliation by foreign powers for quite a long time. We in China are deeply aware of the arduous struggle for peace” (Wang, 2005b). 9 For a comprehensive overview of the Opium Wars see Spence (1990).

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an attempt to force small and medium-sized states back into an “era of colonialism” (Longlong et al., 1995: 14f cited in Gill, 2007: 110).10 In the second Chinese Defense White Paper (2000) there were similar allegations. “Certain big powers” were suspected of “pursuing neointerventionism […] and neoeconomic colonialism, which are seriously damaging the sovereignty, independence, and development interests of many countries and threatening world peace and security” (China’s Information Office of the State Council, 2000: 6). The Chinese delegation used a similar rhetoric, as shown above, also during the “Regional Roundtable” in Beijing (2001). They assumed, “certain Western powers”, above all the US, were merely pursuing their “own hegemonic interests” (ICISS, 2001b: 392). But already in the next Defense White Paper (2002) this accusatory rhetoric was scaled down. Instead of allusions to “power politics” and “hegemonism”, it emphasized the importance of regional cooperation and dialogue (Gill, 2007: 6). Despite the gradual integration of China into the international community, the People’s Republic continued to adhere to a classic understanding of state sovereignty and a strict policy of non-interference—also to protect itself against external interference. That is why, like many other former colonial states, China reacted in an alerted manner to the ICISS report (Morada, 2006: 59–64; Stuenkel, 2014: 9–12; Williams, 2009). When states like China invoke their sovereignty and emphasize it is primarily up to the respective national government to judge when their population is threatened (see e.g. Liu, 2008, 2009a), these states also guard their own right to take action against certain people on their territory and groups, e.g. ethnic minorities, the political opposition, or activists.

4.2 Concerns About Western Interference in Domestic State Affairs East Asian countries—except Thailand—as well as many countries on the African and South American continents experienced similar suppressive and humiliating experiences as China. It was only after the Second World War that they either gained their independence from the predominantly Western colonial rulers or fought for it in bloody wars up into the late 1970s (Morada, 2012: 140). In numerous former colonial states, there are still noticeable long-term effects resulting from this time. Some of these are still in a state-building process or they still work on resolving structural deficits, for example regarding their national economies. In view of the ongoing challenges of building a national identity, solving social conflicts and problems, and promoting economic development, governments often frown upon unsought external interventions (cf. Narine, 2004). The historical experiences of external domination 10

There are also IR scholars who see similarities between the R2P concept and the shared spheres of control during the colonial era. Both would describe two types of government authority: Sovereignty and citizenship on the one hand and trusteeship and guardianship on the other hand (Mamdani, 2009: 277).

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and oppression by colonial powers were reflected in a collective memory of these states. They led to a high level of concern about any foreign coercive measures or interventions and to a strong emphasis on state sovereignty (Carlson, 2005: 41f; Morada, 2012; Prantl & Nakano, 2011). This skeptical attitude toward external interventions is also present in the R2P discourse. The Chinese response to the initial draft of the R2P concept was very similar to the African and Southeast Asian responses. Like China, other developing countries often criticized the new conditioned understanding of state sovereignty during the debate about the R2P, noting there was no common concept for global security as a basis for further analyzes and policies (Williams, 2009: 402). Zimbabwe’s President Robert Mugabe, for example, warned the UN should not encourage “vague concepts” playing into the hands of those states that want to intervene in the internal affairs of other states (Mugabe, 2005: 3f cited in Williams, 2009). Most African states generally tend to reject interventions, especially by former colonial powers. Nevertheless, they were more flexible than China. For example, they acknowledged to tolerate interventions by members of the African Union (AU) (Pang, 2009: 248). That is why many African countries spoke out in favor of strengthening regional arrangements through the R2P (Williams, 2009: 404). In the Asia-Pacific region, national authority without autonomy is seen as a hollow form of state sovereignty (Narine, 2004). A discussion paper on the ICISS report published by Noel Morada in 2005, presenting the results of a series of interviews on the R2P concept, shows that many countries in the Association of Southeast Asian Nations (ASEAN) were concerned about the R2P being a rather Western concept (Morada, 2012: 141). States in Southeast Asia have a large normative overlap with China. They agree that state sovereignty, territorial integrity, and non-intervention are fundamental and elementary principles. They also prefer multilateral actions and consensus-based decision-making processes. Therefore, they were concerned a globally implemented R2P might lead to unilateral interventions, most likely with developing countries as targets (Morada, 2012: 141). Above all, there were concerns about the unilateral and “hyper power” tendencies of some industrialized countries, especially of the US (Morada, 2006: 59–60; 2012). The similarities and cooperation structures resulted in a distinct solidarity between Southeast Asian countries—the extent of which was noticeable during the development process of the R2P concept between 2001 and 2005. They raised very similar concerns to China. This, in turn, made China’s demands more convincing for the rest of the international community (Morada, 2006). Many formerly colonized states shared similar concerns as the Chinese state officials. They were worried that “certain great powers” would pursue neointerventionism and neo-economic colonialism in the sense of limited state sovereignty, independence, and development interests of weaker countries (Morada, 2006; Pang, 2009). Therefore, it was a relatively easy effort for the Chinese to mobilize the collective memory of other former colonial states and to present the first R2P draft as a Western attempt to (again) intervene in the national affairs of sovereign states.

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4.3 The Construction of Chinese Identity Furthermore, the Chinese power to shape the discourse grew as other agents believed what Chinese officials were saying about the R2P. China credibly proclaimed what was “good” and desirable. Thus, in terms of discursive influence, the PRC was on one level with Western norm entrepreneurs. Chinese expertise and authority were built on credibility, which was nourished not only by military or economic power, but, above all, by trust and common goals. China’s modern identity was a central factor for its effective ability to influence the modified R2P concept; specifically, the portrayal of China as a responsible and developing great power, who defends the existing international order as constituted by the classic understanding of sovereignty and the principle of non-interference in internal state affairs.

4.3.1

A Responsible Developing Great Power

With increasing international integration, China’s power has been growing in the international and regional (Asia-Pacific) arena, both in terms of “hard power” and “soft power” (Li, 2009; cf. Nye, 2004). Its’ “hard power” mainly stems from a Chinese national economy which has been growing rapidly for years. China’s gross national product alone increased from $1,640 trillion in 2003 to $11,065 trillion in 2015 (World Bank database). Among other things, this allowed Beijing to increase its financial contributions to the UN. In 2016, for example, China made the thirdlargest contribution to the entire UN budget (UN Secretariat, 2015: 9) and the secondlargest contribution to the UN peacekeeping budget after the US (http://www.un.org/ en/peacekeeping/operations/financing.shtml). Beijing primarily supported political mediation efforts and preventive diplomacy (Teitt, 2011). Yet, it is not possible to explain China’s influence on the R2P norm exclusively with a “hard power” argument in the UN context, because Chinese “hard power” was still comparatively low at the beginning of the 2000s. China also builds its rise on “soft power”. The focus of Chinese “soft power” is the strive for a new identity—or at least for a new image—as a responsible great power, which protects smaller states. The “Responsible Great Power” concept refers to a foreign policy and diplomatic stance which China newly introduced at the time. It states China would meet its obligations on the one hand and cooperate more with actors and institutions in the international community on the other (Gill, 2007: 6; Johnston, 2008: 205). In addition to participating more actively in global events, China also became increasingly involved at the regional level in the Asia-Pacific region, including in the ASEAN regional forum (Chan et al., 2008: 5) or within the framework of the “ASEAN Plus Three” organization (Narine, 2004: 441). China’s claims to its place and role in the world have visibly changed over the past decade (Liang, 2007). For example, the former President Hu Jintao announced in 2009 that China should have more political influence, economic competitiveness, national attractiveness, and moral charm (Wu, 2010: 91).

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Compared to the impulsive behavior in the past (i.e. the explicit accusations of “neo-interventionism” etc.), China gradually acted more prudently within the international community. This change of conduct was in line with China’s self-understanding as the promoter of a more “Harmonious World”, based on a foreign policy concept of the same name (hexie shijie) (Hu, 2005; Tiewa, 2012: 160). Accordingly, Beijing did not directly condemn the R2P norm or question its validity, which would have resulted in high non-compliance costs (Kent, 2007). Instead, China questioned the legal force of the concept and warned that further discussions were necessary. In the discussions following the publication of the ICISS report, China then quietly but persistently referred to its remarks and concerns. However, during the R2P development process described, China had a dual status because it was not only a rising power but also—still—a developing country. Therefore, some Chinese academics and political leaders argued that, in contrast to the Western world driven by capitalist desire and the claim to global leadership, China would merely strive to survive or to develop further (Tiewa, 2012: 159). Indeed, in the R2P context, China emphasizes its status as a developing country. Even more so, China presented itself as the voice of the developing countries. In the R2P debate about the role of preventive aspects, several African states and many Southeast Asian countries emphasized the relevance of better development policies (Morada, 2006: 1–6). China also picked up on this important point in its criticism of the R2P concept. The international community could and should prevent mass crimes and conflicts by combating poverty, social injustice, and ethnic disputes through sustainable economic development and a “harmonious society” (Hu, 2005; Zhang, 2005c). Problems such as poverty, outflowing capital, trade barriers, and debt burdens which affect many developing countries would have to be counteracted (Yao, 2005). China also took on the role of spokesperson on other related issues within the UN when the distribution of power and resources among the member states was at stake. For example, Beijing noted it would be imperative to improve the representation of developing countries, especially African ones, on the UN Security Council. Similar comments were made on the matter of giving developing countries a greater say and better representation in the current international financial system (MFAPRC, 2008, compare MFAPRC 2002a, 2002b, 2005; Yao, 2005).11 China successfully tried to promote its image as a respectful and respectable developing country. Referring to the situation of the developing countries, their shared problems and needs, China positioned itself as the voice of the developing countries and as the representative of their interests, not only in the immediate R2P context 11

In the policy area of development aid China similarly challenged the established Western norms and a mobilized other developing countries. In recent years, China has increasingly propagated the so-called “China Model” or “Beijing Consensus” as an alternative to the traditional Western model (the “Washington Consensus”). The former builds on the values of economic development, social stability, and harmony (Chen, 2009). It would not only allow developing countries to improve their material situation in a self-determined—sovereign—way, but also to emancipate themselves from Western patronage.

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but also in related debates, thereby increasing their trust in China leadership and expertise. Through social practices, China was hence able to consolidate its influence on the R2P discourse and change the meaning of the norm.

4.3.2

A Protector of the Existing International Order

According to Friedrich Kratochwil, agents can construct power in a normative structure by resuming the role of the “protector of certain rules and basic values” (Kratochwil, 1989: 52). In addition to presenting itself as the voice of the developing countries, China also gained influence by creating the image that China was defending the existing international order, in particular its fundamental principles state sovereignty and non-intervention, against Western states who sought to use the R2P norm for attacking these principles and the UN’s peace-building mandate. In this manner, China positioned itself as the protector of the existing international order, meaning a structure of states, sovereign in the common sense, ordered by norms and rules of international law, with the UN as its core institution. At the same time, in the R2P debate and related discourses China consolidated its role as the “responsible critic” of the UN, by highlighting opportunities for improvement or pointing out potentially precarious tendencies. In many UN documents, Chinese diplomats called for prudence and reminded the international community to adhere to the principles of “impartiality, neutrality and objectivity and independence” (MFAPRC, 2008). In an almost culturally relativistic way, Beijing stressed there would be no onesize-fits-all solutions for all countries. Instead, a country had to adapt its institutions to its specific political and social conditions and to its particular local needs, because every country was different. This statement was particularly true of the general intervention criteria that were introduced in the HLP report in the meantime but were then removed again due to the protests in the WSOD. In addition, Chinese diplomats often warned to respect the opinions of other countries (Yao, 2005)—an appeal that appeared to be primarily directed at Western countries. Chinese diplomats argued for solving global problems in the best possible way, norms and mechanisms would be necessary which are acceptable for all countries and are jointly implemented. One should come to agreements on these norms and mechanisms through dialogues, consultation rounds, and cooperation, (Cai, 2004: 66). For example, the Chinese noted during a debate about possible UN reforms: As reform bears on the future development of the UN and the common interests of all countries, extensive and democratic discussions should be carried out to take into account the interests and concerns of all parties and reach consensus. (own emphasis, MFAPRC 17 September 2008)

Accordingly, China encouraged the international community to create effective, efficient, and fair collective security mechanisms by adhering to multilateralism as well as promoting democracy and the rule of law. It is important to stay true to the purpose and principles of the UN Charter, to strengthen the authority and efficiency of the UN, and to protect the central role of the UN Security Council for the collective security system (MFAPRC, 2005; Wang, 2001).

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4.4 China as an Influencer of the R2P Norm In summary, China presented itself as a country that protects fundamental norms such as sovereignty and non-interference in internal affairs and advocates for the interests and concerns of formerly colonized countries regarding foreign interference in their domestic state affairs. It portrayed itself as a country that understands the situation of other developing countries and wants to help them develop their economies. Finally, China depicted itself as a country standing for a certain independence from the West, while simultaneously fulfilling its responsibilities as a growing great power. The R2P norm was challenged because it had two very different meanings. At a time, when many (Western) analysts claimed the norm dissemination process was already taking place, China and other states were still engaging in the meaningmaking of the norm. China distanced the R2P norm from its original meaning; from the meaning the norm entrepreneurs in the ICISS Commission had imagined, for whom it had meant something good and appropriate: The protection of human rights. Yet, China succeeded in portraying the original 2001 version of the R2P norm as something neither just, fair nor legitimate, but rather as something offensive (cf. Finnemore & Sikkink, 1998: 900), namely a free ticket for Western states to intervene in the national affairs of other states and thus attacking their sovereignty. Through discursive practices in regional forums, China positioned itself as the protector of the international order, defending the traditional understanding of state sovereignty and the principles of the UN Charter, especially non-interference. As suggested by Chinese officials, the concept had been distanced from the use of military force against states. A greater emphasis had been placed on non-military conflict resolution approaches. The newer version of the R2P norm at the 2005 World Summit stated national governments would (still) have primary responsibility for protecting their people. It also emphasized preventive aspects, for example support for states to develop the skills necessary to protect their citizens themselves. In addition, the 2005 version of R2P confirms the power of the UN Security Council to decide on interventions. It confirms that conflicts are dealt with individually and in coordination with regional organizations and emphasizes all actions must be in harmony with the UN Charter (Prantl & Nakano, 2011; Teitt, 2011; Tiewa, 2012). China influenced the meaning of the R2P norm in three ways: First, China showed the incoherence between the early R2P concept (2001) and the prevailing normative structures in developing countries. By doing so, it presented the R2P as inappropriate. By making it clear that developing countries feel underrepresented and patronized, Chinese officials encouraged developing countries to go their own way. Second, China constructed the “other” by demonstrating the differences between the West and the developing countries, attempting to reinforce the perceived normative distance between the two. Developed states, as argued more directly at first and more subtly later, were still primarily pursuing their national and possibly hegemonic interests. China deepened the impression Western states would most likely use R2P to pursue neither just nor legitimate goals, but only seek to accomplish their own objectives.

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Third, for creating a stronger joint opposition, China presented the shared values and experiences of developing countries as homogeneous. Beijing repeatedly stated its position concurs with other non-Western states and emphasized the shared commitment to a conservative interpretation of state sovereignty and non-interference, while also drawing on the colonized past. Delegations frequently expressed the consistency of regional perspectives and historical experiences, often supported by appeals to strengthen South–South cooperation as a useful addition to North–South cooperation.12 This shows China’s attempt to create the feeling of a global southern community as a counterpart to the industrialized Global North, and to evoke a southern solidarity (Teitt, 2011: 310). China tried to mobilize the common identity of the formerly colonized states that had similar experiences by the hands of foreign (mainly Western) powers and thus to conjure up a unique group identity with special local norms and practices, such as strong state sovereignty, the right to self-determination and a ban on foreign intervention. This line of action fulfilled one of the conditions favoring norm localization, as suggested by Acharya. China localized the interpretation of state sovereignty entailed in the R2P concept. Yet contrary to the theoretical propositions of Archarya, this did not just happen by strengthening the transnational norm with local meanings and traditions. Instead, China went a step further as described by the work of Prantl and Nakano. The PRC responded to the original norm concept. It brought the norm, which had changed in its meaning, from the local level back into the international arena—a feedback loop as the authors called it (Prantl & Nakano, 2011). This chapter showed how the Chinese reconstruction of R2P also included an additional notion—namely the resentment against external interventions. This resentment is widely spread among southern developing countries, due to their common experience of Western and European violations of their state sovereignty during the colonial era. Hence, through this localized reconstruction and feedback, China helped weaken the appeal of the original “Western” norm concept by successfully attributing negative dimensions such as aggressiveness, lack of appropriateness, and lack of legitimacy to R2P. However, even though China weakened the substantial value of the R2P concept, it did also strengthen the reference value of the norm (in the 2005 version), as it motivated other (non-Western) agents to participate in the R2P debate. By doing so, China greatly contributed to increasing the significance of the norm. Especially among developing countries, it is more widely recognized than the original concept from 2001 (cf. Bellamy, 2015: 161f). Regarding IR norm theory, China’s role in the development process of the R2P norm was hence a much greater one than being a mere “norm receiver”. At the same time, China was not a “norm entrepreneur” either, due to its lacking direct involvement in the initial ICISS. That is why it would be better to use the term “norm shaper” to describe the Chinese role in the entire norm development process. 12

Position Paper of the People’s Republic of China at the 63rd Session of the United Nations General Assembly 17 September 2008.

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5 Conclusion This examination confirmed that China has weakened the substantial value of the R2P; a result in line with the theoretical expectations provided by the Second Norm Debate. Since the first R2P version in 2001, China has continuously insisted on maintaining the UNSC’s exclusive decision-making power regarding the use of military force. It contributed to shifting the focus of the R2P norm away from military interventions toward the protection of the population and preventing violence, i.e. confirming Articles 2.1 and 2.7 of the UN Charter in the first pillar of R2P. Finally, China accomplished to extend the discussion of the R2P concept as a whole from the UNSC to the GA in order to involve all UN members more closely in the debate. All these aspects are entailed in the 2005 version of the R2P in the WSOD. However, China’s practices had another effect on the concept. As a country, China had been known as a strict opponent of any interference in domestic affairs of sovereign states for a long time. However, China did not completely reject the R2P norm right away but referred to it on several occasions. Chinese delegates have repeatedly called for more discussions about the concept and appealed to strengthen cooperation with regional agents. These actions probably also stemmed from the Chinese national interest to strengthen and establish its own understanding of national sovereignty regarding this matter. But through its commitment, China has also included other actors in the debate who the norm would affect, after all. Consequently, although China weakened the substantial normative value of R2P, it strengthened its reference value and thus contributed to making R2P a transnational norm. In this chapter, I have argued that norm dissemination rarely takes place in a linear top-down process. Since it is possible that the same norm means something different for different actors with specific social and cultural backgrounds, these different meanings can also be in competition with each other. Although, it can be useful to make an analytical distinction between norm diffusion and norm contestation (Wiener, 2004: 194), empirically such a separation was not correct in the case of the R2P and China. The Responsibility to Protect norm already existed in the form of the ICISS report. The norm entrepreneurs intended to begin the norm diffusion, when the Chinese began challenging its meaning through its well-aimed contributions to the R2P debate. Doing so, Chinese delegates gradually reinterpreted its content. Evidently, the contestation and dissemination of norms do not always take place one after the other, as separate processes. Rather, although scholars might find it helpful to treat them as separate analytical units, in practice, they can also overlap and disrupt or fuel each other. In addition, the analysis showed that even if a norm has been recorded in a formal document, the meanings and practices associated with it are not set in stone because they interact with the continuously changing social reality. Then again, it depends on relations of power which of these changes in social reality agents deem important and which interpretation of a norm which agent or group of agents considers appropriate. Discourse theories often emphasize that power

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and authority do not only depend on material resources but also on the ability of representing what is “truth” (Orford, 2011: 186). That is why a successful norm diffusion, both global and regional, relies on the capability of agents, experts, et cetera, to make others believe they are telling the truth. Not least by means of their “soft power”, they have to convince their audience that the norms they advocate for are indeed good and desirable—or not, and therefore require contestation and re-interpretation (compare Checkel, 1999; Onuf, 1998). Contrary to the view of some IR scholars from the first norm debate, not only international and transnational, state and non-state agents from the West have this capability, but as shown above regional and national agents from the Global South do as well. What remains open for now is the question of why the majority of norm researchers so far have largely overlooked the dynamic interaction between the regional and transnational levels and the influence of non-Western states as norm entrepreneurs or, as in this case, norm influencers. Were there theoretical reasons for instituting a norm research which prioritizes “good” norms; universally prevalent norms diffusing in the top-down manner? Do transnational norms, predominantly initiated by the West, really dominate empirically? Or did the normative power of the West possibly influence how (one-sided) we study norms as scholars?

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Johanna Polle is a PhD candidate in Political Science at the University of Hamburg and a PhD fellow at the Institute for Peace Research and Security Policy at the University of Hamburg (IFSH), supervised by Prof. Michael Brzoska. Her research interest is in emerging technologies, arms control, and international security norms. Johanna Polle held a PhD scholarship from the Friedrich Ebert Foundation and holds a Master of Philosophy in International Relations from the University of Oxford. This chapter builds on an unpublished paper which she wrote at the University of Hamburg, supervised by Prof. Antje Wiener. Johanna Polle currently works as a foreign policy advisor at the German Bundestag.

Punishing or Preventing? The Responsibility to Protect and the Wars in South Sudan Ole Frahm

Abstract The chapter retraces the intricate link between the responsibility to protect and South(ern) Sudan. First, a historical retrospective shows how humanitarian efforts in Southern Sudan created the consciousness that an international norm to prevent human rights abuses was vital. Subsequently, an analysis of the 2013–2018 civil war in South Sudan illustrates highly diverging interpretations of R2P’s implementation in practice. Four dimensions of how R2P’s preventive and punitive aspects find expression in discourses and actions are highlighted: judicial accountability, limits to national sovereignty, the United Nations’ changing self-conception, and sanctions regimes. Findings show the mutual exclusivity of different measures, the UN’s shift to human security, the salience of civil society activism in setting the agenda and South Sudanese actors’ active utilization of the R2P norm.

1 Introduction This chapter retraces the evolution of the norms of humanitarian intervention and international mingling into a sovereign state’s domestic affairs in the example of South Sudan.1 This case shows not only the developmental steps going back to the 1980s that helped give birth to the norm of the responsibility to protect (R2P). South Sudan also exemplifies the multiplicity and plurality of contemporary debates in international politics that are more or less directly linked to the concept of the responsibility to protect. These include the role of the United Nations, forms of judicial 1 This chapter is an updated and reworked version of Frahm, O. (2020). Wer schützt wen? Die Responsibility to Protect im Südsudan. In M. Hansel, & A. Reichwein (Eds.), Die Internationale Schutzverantwortung: Etabliert. Herausgefordert. Gescheitert? (pp. 115–154). LIT Verlag. The publishing house LIT Verlag graciously allowed republication in this edited volume.

O. Frahm (B) Department of International Relations, Center for Governance and Culture in Europe, University of St. Gallen, Switzerland & Kadir Has University Istanbul, Istanbul, Turkey e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2023 A. Reichwein and M. Hansel (eds.), Rethinking the Responsibility to Protect, Contributions to International Relations, https://doi.org/10.1007/978-3-031-27412-1_7

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accountability such as hybrid courts, potential restrictions on national sovereignty and the utility of international sanctions. This is very topical given that South Sudan has seemingly finally emerged from the depth of civil war as a Government of National Unity finally convened in March 2020 just as the Covid-19 pandemic began its global reign of terror. At the same time, there is a distinct sense of disappointment in both the lack of political, military, and economic clout thrown behind peacemaking efforts by most of the regional and international community concerned with the country and secondly with the fact that the same political leaders that are responsible for the deaths and sufferings of millions are still at the helm. Hence, this contribution seeks to retrace the responsibility to protect’s impact on South Sudan both in a diachronic perspective and with a focus on certain specific topics.

1.1 Interconnectivity and Multidimensionality of R2P—Theoretical Insights from the Case of South Sudan Due to its regional importance and the involvement of regional international actors, the case of South Sudan has a lot to offer to theoretical and practical debates surrounding the responsibility to protect. Thus, studying the case of South Sudan in the light of the responsibility to protect touches upon and adds new material and perspectives to at least two key themes and theoretical debates. The first regards the interconnectedness of preventive measures linked to R2P with the corresponding aspect of punitive forms of transitional justice once crimes against humanity have been committed. Whereas preventive and punitive instruments are often treated as distinct forms of intervention, in South Sudan they reveal themselves as two sides of the same coin. A coin whose imprint reads: prevent mass atrocities! That is because the international community’s threat of punishment for what it deems unacceptable transgressions of human rights standards combines the two instruments much more neatly than sometimes assumed (Mégret, 2010). Secondly, the responsibility to protect is in this chapter not narrowly conceived as the legal text agreed upon by the UN but understood as a multidimensional concept that incorporates the wider political and philosophical debate over the moral and practical obligation for external actors (states, international organisations, etc.) to intervene in various forms to prevent blatant human rights violations that the national government is either not willing or able to contain. This recognition of R2P’s multidimensionality ties in with the arduous difficulties different actors have in determining if and when and where there is a case for R2P. As such, the debate over the legality and applicability of (temporary) restrictions on national sovereignty is highly relevant for South Sudan where the government has radically altered its position from an original supporter of the responsibility to protect to a vocal defender of a rigid conception of national sovereignty and the principle of non-interference. This

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drastic shift also underlines the conundrum that people’s and institutions’ assessment changes depending on their personal involvement, their position, and their level of information. Finally, as a result of the vast number of actors that have at different points in time sought to interfere in the most recent civil war from 2013 to 2018, which include the United Nations, several Western powers (U.S., UK, Norway), the African Union and China, the South Sudanese example also finds itself at the centre of very contentious debates over the international judicial system’s allegedly neocolonial approach (Frahm, 2015) and over the efficacy and legitimacy of the UN’s conflict prevention and conflict resolution system in general. Much like Hunt (2016) showed for rising powers, the case of Southern and now South Sudan exemplifies that the evolution of an international norm such as the responsibility to protect need not proceed along a linear path towards universal acceptance. On the contrary, the nonlinearity of norm evolution shows up both in South Sudan’s domestic debates and regarding the regional and international parties involved in the conflict. Contemporary African debates over the meaning, origin and motivations that led to the creation of the responsibility to protect as a normative device are in fact an excellent example of the non-linear evolution of an international norm that is contested and fought over both between and within individual states (Kuwali & Viljoen, 2014).

1.2 Francis Deng and the Shifting Ground of the Responsibility to Protect in South Sudan Francis Deng’s career in the United Nations as a leading proponent of the responsibility to protect and eventually as South Sudan’s ambassador to the United Nations offers a great canvas on which to retrace the R2P norm’s evolution in the context of South Sudan. In the mid-1990s, Deng was the co-author of an influential Brookings’ study (Deng et al., 1996) that to a large extent anticipated the responsibility to protect as it came to be articulated by the International Commission on Intervention and State Sovereignty (ICISS, 2001) half a decade later. For many years, Deng was also the United Nations Secretary-General’s Special Adviser on the Prevention of Genocide. In this position, he was the first to warn the Kenyan leadership that it would be held to account in the name of the responsibility to protect for the violence that accompanied national elections in 2007 (Worsnip, 2008). Only a few years later, however, as South Sudan’s inaugural UN ambassador, Deng actively lobbied against the imposition of targeted sanctions against South Sudanese politicians and members of the army (Sengupta & Kushkush, 2015) although their explicit aim was to uphold the principle of the responsibility to protect that Deng himself had helped to coin. After leaving the ambassadorial post in New York in 2016, Deng was appointed head of the National Dialogue, a reconciliation process initiated by the South Sudanese

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government in 2017 whose main purpose was alas to serve as a national and international fig leaf to demonstrate the willingness to reconcile while failing to take any steps towards genuine reconciliation (Vhumbunu, 2018). This excursus about one of the pioneers of the concept of the responsibility to protect clearly shows that it is not just the norm’s translation into practical steps that is highly contested. The case of Francis Deng also highlights how the perspective on what constitutes the right course of action in the name of the responsibility to protect is tied to each actor’s respective position in and towards a given conflict and can and does therefore change along with a shift to a new position. In alignment with this observation, this chapter puts forward the argument that R2P’s spread and diffusion as an international norm constitutes a multidimensional, actor-centric, and non-linear process that is reversible. To substantiate the claim of multidimensionality, the subsequent sections will outline the various dimensions in which the responsibility to protect is present in and impacts discourses and decisions in and about South Sudan. Beforehand, however, the chapter will start with a historical overview of conflicts in Southern Sudan. This is to demonstrate the evolution of the debate over the responsibility to protect from the 1980s until the signing of the Comprehensive Peace Agreement (CPA) in 2005 because the norm that the protection of civilians should guide international politics preceded the terminology and legal enshrinement of the responsibility to protect by decades (Hopgood, 2014). This will be followed by a section on the most recent civil war from 2013 to 2018. Going into considerable detail about the underlying causes of the South Sudanese civil war not only helps to contextualize contemporary initiatives that invoke the responsibility to protect. Providing a detailed account also serves to illustrate how difficult it is to apportion blame for the civil war and the atrocities committed and thus also how difficult it is to determine the right addressee of a potential international intervention in South Sudan in service of the responsibility to protect.

2 The History of South Sudan is the History of Its Conflicts South Sudan is a multiethnic country comprising more than sixty different ethnic groups and sub-groups whose borders and existence as a territorial entity is a direct product of Sudan’s colonization, first by Ottoman Egypt from 1821 and then starting in 1898 by the British. In both cases, the colonial presence and thus the presence of state authority only manifested along the shores of the Nile and in a handful of garrisons (Burton, 1981: 127) and was characterized by a dismissive sense of superiority towards Southern Sudanese generally deemed uncivilized. Adhering to Animist belief systems, Southern Sudanese became the target of Arab slave raids (Klein, 2009: 183) and later of brutal penal campaigns by the British against the Dinka, Nuer and Anuak (MacMichael, 1954: 92). As a result, the state was from the start associated with violence and exploitation and a collective identity that transcended ethnic ties primarily arose from collective resistance to state control and authority.

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Beginning with the Closed District Ordinance of 1930, the British colonial administrators pursued a policy of separating and effectively segregating Southern Sudan from the predominantly Muslim and Arab Northern Sudan. When Sudan attained independence in 1956, however, the concerns of the inhabitants of Southern Sudan were largely ignored as colonial structures of rule simply changed hands from the British to Northern Sudanese nationalists (Grandin, 1973: 161). In response to neglect, discrimination and exclusion from power, an armed secessionist uprising headed by the Anyanya rebels broke out soon after independence and lasted until a peace agreement in 1972 established an autonomous region of Southern Sudan (Rolandsen, 2011). The second civil war that lasted from 1983 to 2005 and cost more than 2 million lives either directly or because of displacement, hunger and disease was triggered by the abrogation of the Southern Sudanese regional self-government and the introduction of sharia laws for all Sudanese citizens irrespective of religion. Like all conflicts in Sudan, however, the civil war’s underlying causes were the concentration of power and wealth in the central region around Khartoum at the expense of peripheral regions. During the 1980s, the Sudan People’s Liberation Movement/Army (SPLM/A) led by John Garang, a former colonel in the Sudanese army, emerged as the strongest rebel faction. Their close ties with the Communist Derg regime in neighbouring Ethiopia meant that many in the West pigeonholed the SPLM and by extension the Southern Sudanese struggle for autonomy as part of the bipolar competition, which severely limited international support for Southern Sudanese claims. Fighting in the South continued unabated after the Sudanese dictator Nimeiry was deposed in 1986 as the democratically elected government of Sadig al-Mahdi initiated the still-virulent practice of outsourcing violence by arming local militias to do the government’s bidding (Saveedra, 1998: 250). It took, however, until the period 1989–1991 and three successive developments—Operation Lifeline Sudan, the Islamist coup d’état and the SPLM/A’s split—for the international community to become consistently aware of and concerned with the situation in Southern Sudan. This in turn laid the basis for the latter debates surrounding Southern Sudan and the responsibility to protect.

2.1 The Southern Sudanese Civil War’s Contribution to the Nascent Debate Over a Responsibility to Protect The Southern Sudanese civil war’s interminable duration (1983–2005), extremely high number of victims and participation of a very broad range of states as well as regional and international organizations all shaped the way the international community begun to develop a new paradigm for dealing with conflicts that entail large-scale humanitarian crises. A couple of aspects stand out in this respect which coincided with the overall shift of international relations brought about by the end of the Cold War.

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The first aspect is the conflict-induced famine in Sudan and the humanitarian aid programme Operation Lifeline Sudan (OLS) that was set up in response in 1989. OLS marked the first time that a sovereign state, represented by the government in Khartoum, bowed to international pressure and temporarily relinquished national sovereignty over those parts of the territory that lay outside of its actual control to the United Nations (Karim et al., 1996: 2). Working in and with OLS also introduced an entire generation of mostly Western aid workers to the situation on the ground which helped to gradually transform the international perception of the conflict from one that was primarily rooted in the global bipolar competition to one that emphasized the humanitarian costs of the various conflicts in Southern Sudan. The debate over the responsibility to protect also indirectly fed off aid workers’ experiences during the war. Aid and especially food were turned into means of war—for example during the 1998 famine (Harragin, 2004: 315)—as the SPLA and other militias confiscated deliveries targeted at civilians and used them to feed their fighters instead, frequently with the tacit knowledge of aid organizations (African Rights, 1997: 308–311). The SPLA even artificially created demand by forcing civilians into so-called hunger camps which then received aid deliveries that could be misappropriated. At the same time, the cooperation of international organizations with South Sudanese rebel organizations that controlled vast stretches of territory laid the basis for a new conception of territorial sovereignty, a conception that is also at the core of the idea of the responsibility to protect (Deng, 2010: 365). The second contemporaneous event with a significant long-term impact on the evolution of R2P was the 1989 coup in Sudan spearheaded by a coalition of officers with ties to the Sudanese branch of the Egyptian Muslim Brotherhood. In the new regime’s first couple of years, this translated into a strong ideological imprint on policy including a drive to defend and spread their specific interpretation of Islam (Warburg, 1995). For Southern Sudan where by this point in time the majority of the population were members of various Christian denominations, this meant that a peace settlement built on religious equality was out of reach. On several occasions, Sudanese military campaigns against the Southern rebels were fought under the banner of jihad. Notwithstanding these setbacks, the SPLM/A continued until 1991 to formally uphold the vision of a reformed united New Sudan (Garang, 1992: 203). This stance owed not little to the SPLA’s Ethiopian sponsors who were themselves fighting a losing battle against secessionist rebels in what was to become Eritrea and for ideological reasons as much as for propaganda purposes could not have financed a secessionist group in Sudan. Southern Sudan thus missed the international state system’s brief moment of openness to accept new members. The third facet is the fall of the Ethiopian Derg regime in 1991 which having lost the Soviet Union’s ideological and more importantly financial and military support, finally succumbed to a rebel coalition led by Eritrean independence fighters. The Derg’s fall not only robbed the SPLM of its sole regional sponsor but also forced the movement to abandon its cross-border base in Ethiopia’s Gambella region which in turn helped precipitate an internal leadership struggle. Lam Akol and Riek Machar, two members of the SPLM’s politburo, attempted to depose Garang and, having failed to win sufficient backing, proceeded to set up a rival SPLA faction that actively fought

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Garang’s mainstream SPLA. In the course of the fighting which lasted the better part of a decade, Machar’s troops in the town of Bor in 1991 committed one of the worst massacres against mostly Dinka civilians (Amnesty, 1992: 17). In addition to the lasting impact the SPLM/A split had on the movement’s military prowess and on its appeal to international supporters, the split also entailed an ideological rethink within the movement. From 1991 onwards, the discourse shifted towards calls for national self-determination. Paradoxically, it was the militias that were in cahoots with the government in Khartoum and that actively fought the SPLA who were the first to diverge from the New Sudan vision and called for an independent South Sudan (Thomas, 2012: 23). Given the sacrosanct status of Africa’s postcolonial borders, South Sudanese appeals only truly began to find a receptive audience once an American lobby took up the cause of the suppressed and enslaved Southern Christians (Hamilton, 2012). Their efforts were helped along by highly active Christian organizations within Southern Sudan that by the late 1990s had brought the different Southern factions together to negotiate a ceasefire and some form of reconciliation which opened the path for several of the most influential Southern militias to join forces once again (HRW, 2003: 158). One crucial result of this reconciliation process was that the highly complex theatre of frequently changing local and regional alliances could once again be portrayed in a simplified manner as a binary conflict between, on the one side, the Sudanese government and allied Northern Sudanese Muslim militias and, on the other side, Christian Southern Sudanese tribes striving for autonomy. The decisive factor, however, the straw that broke the camel’s back and led to the signing of a lasting peace agreement between the Sudanese government and the SPLM/A and thus eventually the founding of an autonomous Southern region in 2005 was Khartoum’s fear of becoming the next target of the US war on terror; a justifiable fear considering Sudan had played host to Osama bin Ladin for several years in the 1990s. In retrospect it is indeed fascinating to note how little influence the ongoing debate over the responsibility to protect had on the high-level negotiations that culminated in the Machakos Protocol (2003) 2 and the Comprehensive Peace Agreement (2005) 3 . Although the underlying root causes of violence were not too dissimilar to those of the violence that erupted in neighbouring Darfur in 2002/2003—conflict over access to land, neglect by the central government, racial discrimination—and the movement’s nominal claim to vie for change at the national level, the SPLM/A by and large remained on the sidelines of the political and military crisis in Darfur (de Waal, 2007: 1040–1041). This attitude reflected international mediators’ efforts to treat the two conflicts as separate and distinct to avoid endangering the peace agreement that had been painstakingly constructed to account for the specifics of Southern Sudan (Bellamy, 2005: 40).

2

The Machakos Protocol can be accessed here: https://peacemaker.un.org/sites/peacemaker.un.org/ files/SD_020710_MachakosProtocol.pdf. 3 The Comprehensive Peace Agreement can be accessed here: https://peacemaker.un.org/sites/pea cemaker.un.org/files/SD_060000_The%20Comprehensive%20Peace%20Agreement.pdf.

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2.2 The Civil War of 2013–2018: Background and Evolution Thus, given South Sudan’s intimate links to the evolution of the concept of a responsibility to protect and its physical proximity and political connection to some of the key conflicts that triggered debates over a potential application and applicability of the R2P statutes once they came into effect in 2005, it was to be expected that renewed mass atrocities committed in South Sudan after the country attained independence in 2011 would incite an international response. To understand why the response was far from decisive and much delayed, it is essential to look at the background to and evolution of the civil war that broke out in December 2013 and officially ended with the current peace agreement in 2018 and which was right from the start accompanied by ethnic cleansing and massive human rights violations. This analysis will also furnish empirical material to substantiate debates over the evolution of norms and the way norms are being challenged within and between states of the Global South. The question of what exactly sparked the outbreak of violence in the capital Juba remains contested which is why the question of who bears responsibility for the resulting civil war cannot be answered in a straightforward fashion. In the run-up to presidential elections originally scheduled for 2015, the power struggle between the two likely candidates for the SPLM’s nomination (tantamount to winning the presidency given the SPLM’s dominance of South Sudan’s politics) came to a head: the incumbent Salva Kiir, a Dinka who had succeeded the late John Garang in 2005, and his deputy Riek Machar, a Nuer, who had been sacked from his post in the summer of 2013. In the night of 15 December 2013, what occurred was either a failed coup attempt against Salva Kiir by Nuer members of the army or a preventive strike by Kiir’s faction against Nuer in the army. What is certain is that in the following days, ethnic Nuer living in Juba were hunted down and killed. In response, majority Nuer areas of South Sudan witnessed acts of revenge against ethnic Dinka and the national army split largely along ethnic lines with a breakaway SPLA-in-Opposition (SPLAIO) formed as a party-cum-militia under Riek Machar’s command. The deliberate ethnicisation of the conflict also served to divert attention from the manifold criticism against president Kiir’s rule, including the longstanding claim of Dinka dominance, that had been voiced by other leading SPLM cadres beside Machar. While fighting has not been continuous—in part because many roads become inaccessible during the long rainy season—all parts of South Sudan were at least at some point directly affected by the fighting as an estimated 190.000 people were killed and twice as many died due to related causes such as lack of food and healthcare. Since the first Cessation of Hostilities Agreement between the government and the SPLA-IO in January 2014, several ceasefire and peace accords have been signed under the aegis of neighbouring states, the regional organization IGAD (Intergovernmental Authority on Development), the African Union, the troika (UK, US, Norway), other Western states and the United Nations only to be made obsolete by continuing fighting on the ground. Emblematic is the peace agreement of summer 2015 that only came about thanks to massive external pressure which established a government of national unity based on a powersharing agreement between Kiir and Machar. After

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Machar had returned to Juba with some troops in the spring of 2016, fighting erupted again only three months later forcing Machar to flee the scene. Overshadowed by the main conflict between the government of Salva Kiir and Riek Machar’s SPLA-IO—the latter itself riven by internal power struggles (Young, 2017)—local struggles over land and cattle ravage the countryside. Typically, there is no clear-cut line of command, and it is very hard to determine after the fact whether soldiers or local commanders acted on orders or on their own accord. Civilians are generally treated as legitimate targets (Crisis Group, 2017b), contributing to circles of revenge that in turn help to explain the at-times extreme brutality that characterizes the fighting which includes for the first time in South Sudan the systematic use of sexual violence as a means of warfare (Amnesty, 2017). Although its previous incarnations all collapsed due to personal rivalries and the thirst for power, the current peace agreement dating to 2018 and finally implemented with the forming of a unity government in early 2020 is once again based on the big tent approach of a powersharing agreement. While it builds on a template that goes back at least to the first reconciliation between Machar and Garang/Kiir in Wunlit in 1999, this choice owes as much to the actors’ lack of imagination as to the realization that neither the armed opposition nor the government is strong enough to decisively end the conflict militarily. Meanwhile, brutal communal spirals of violence wage on in a series of locations across South Sudan while Thomas Cirillo’s National Salvation Front continues its rebellion in the southern region of Equatoria and rejects integration into the peace accords.

3 Dimensions of the Responsibility to Protect in the Case of South Sudan Building on this account of the recent civil war in South Sudan, the focus will be on the four dimensions in which the R2P norm finds practical or discursive expression and functions as justification for national or international actors’ actions in and on South Sudan. These four dimensions are (1) the judicial process of seeking accountability for war crimes, (2) debates over limits to national sovereignty, (3) the United Nations’ changing self-conception of its role and (4) the utility of sanctions regimes.

3.1 Responsibility to Protect and the Judicial Process of Accountability The judicial and societal reckoning with crimes against humanity and the process of bringing those responsible for these crimes to justice and the responsibility to protect as an instrument to prevent such crimes from occurring in the first place are two sides of the same coin (Ainley, 2015). The way this judicial side of the coin

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is conceived and implemented in South Sudan, however, varies a lot between the different stakeholders from the UN to NGOs, the Government of South Sudan and the African Union. The parallel existence of the norm of a universal responsibility to prevent atrocities with the conflicting principle of non-interference into a state’s domestic affairs is painfully evident in South Sudan.

3.1.1

The UN and the Judicial Approach to War Crimes in South Sudan

Part of the changing self-conception that permeates several of the United Nations’ institutions is the desire to no longer merely document human rights abuses in sufficient detail but at the same time to name and shame those responsible and to appeal to national institutions to prosecute the culprits (for example UNMISS, 2018). The struggle against impunity is in so far a means of R2P’s implementation as the international community—in this case embodied by the Office for the High Commissioner of Human Rights—has taken it upon itself to ensure that when preventative measures have failed that those crimes against humanity will be identified, prosecuted and atoned for. The intended effect is to prosecute the perpetrators very visibly so as to send an unmistakable message for similar cases that may arise in the future in South Sudan or elsewhere. Indirectly, prosecuting perpetrators of atrocities thus fulfils the responsibility to protect’s precepts by preempting potential future atrocities from occurring in the first place. Characteristic for the decidedly mixed legacy of R2P as a codified part of international law is that from a legal perspective, the United Nations’ right to closely monitor the fighting for potential crimes against humanity does not arise from the responsibility to protect but first from the 2015 and later the 2018 peace accord between the parties to the conflict.4 Since 2018, the UN’s occasional reports on the state of human rights in South Sudan in addition to a detailed list and description of each crime—not unlike similar reports by Amnesty International or Human Rights Watch—also contain the names of suspects, including of those who may have ordered the crimes.

3.1.2

Civil Society and NGOs in the Process of Judicial Accountability in South Sudan

A clear sign for the dialogue between national and international norms and movements even in areas with only a nascent civil society is the fact that in mid-2014, about half a year after the outbreak of civil war, a coalition of South Sudanese NGOs together with international organizations such as Amnesty International and Human 4

The 2015 Peace Accord can be accessed here: https://unmiss.unmissions.org/sites/default/ files/final_proposed_compromise_agreement_for_south_sudan_conflict.pdf; the 2018 Revitalized Peace Agreement can be accessed here: https://ucdp.uu.se/#//peaceagreements/fulltext/SSD%202 0180912.pdf.

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Rights Watch published an open letter to the UN Human Rights Council to plead for a special session to be convened on the situation in South Sudan. In addition to the Human Rights Council, the letter was also explicitly addressed at the UN Special Adviser on the Prevention of Genocide who is tasked with ensuring adherence to the responsibility to protect.5 South Sudan’s small but influential civil society at the same time very closely follows international debates surrounding R2P and translates them to the local conditions and circumstances. Thus, merely a month after the start of fighting, intellectuals from Juba’s civil society called for the establishment of a special tribunal to deal with war crimes committed in South Sudan; a court to be staffed with both international and South Sudanese judges and prosecutors (Deng, 2014; Deng & Deng, 2014). In response, Human Rights Watch based on a wide array of interviews with South Sudanese judges, lawyers, victims, and politicians presented its own recommendation on how to end impunity in South Sudan: the institution of a hybrid court (HRW, 2014a). This hybrid court would combine South Sudanese law with international law and be manned with a mixture of South Sudanese, African and other international judges, prosecutors, and defence lawyers. This idea of a hybrid court was picked up by the then-secretary of state John Kerry (AFP, 2015) and was eventually included in the 2015 peace accords. Although it appears that the South Sudanese conflict parties willingly agreed to the establishment of the hybrid court during peace negotiations (Verjee, 2016), it took until January 2021—and several additional open letters (HRW, 2020)—for the South Sudanese Government of National Unity to finally approve the establishment of a hybrid court. The exact parameters of the court’s purview remain to be worked out and agreed upon. A particularly arduous task is to decide upon the timeframe that the hybrid court will be allowed to consider. Given that South Sudan or at least parts of the territory such as Jonglei have seen systemic violence for the better part of 40 years, the decision to circumscribe the time period that the court will have legislation over to events after 15 December 2013 is likely to present a challenge to the degree to which it will be deemed legitimate by South Sudanese society while on the other hand facilitating the court’s capacity to work effectively and with reasonable speed (Deng & Willems, 2016; Owiso, 2018: 98). A key factor for the South Sudanese parliament’s legislative approval for the hybrid court (if, admittedly, much delayed) has been a coalition of South Sudanese and international NGOs that have kept the issue on the agenda. One example of their cooperation is a joint open letter in 2016 of over 30 organizations that called on the African Union to establish the hybrid court without further delay.6 Moreover, the fact that another public plea for the realization of the hybrid court explicitly pointed to the success of the Extraordinary African Chambers in Dakar in trying Chad’s former president Hissène Habré (Amnesty & FIDH, 2016) constitutes intriguing evidence 5

The open letter to the permanent members of the UN Human Rights Council can be accessed here: https://www.amnesty.org/download/Documents/8000/afr650042014en.pdf. 6 The open letter to the head of the African Union can be accessed here: https://www.amnesty.org/ download/Documents/AFR6550842016ENGLISH.pdf.

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of the cross-pollination of different struggles to ensure accountability and of how they collaborate to strengthen and solidify the acceptance of international norms. Conversely, the Dakar Guidelines on the Establishment of Hybrid Courts (Ainley & Kersten 2019) which seek to develop a template for hybrid courts based on the Habré trial also on several occasions referred to the ongoing attempts to establish a hybrid court in South Sudan.

3.1.3

National Processes of Judicial Accountability in South Sudan

Human Rights Watch’s (HRW, 2014a) plea to end impunity draws an explicit connection between previous pacification strategies by the Government of South Sudan and the outbreak of the civil war. By failing to punish rebelling militias and instead appeasing them with positions and privileges, the government creates clear incentives for political-military entrepreneurs to take up arms and shun the legitimate channels of political participation (Frahm, 2014: 278). This applies with added force to the many local conflicts that take place in the shadow of and parallel to the major confrontation between Salva Kiir and Riek Machar and self-perpetuate in a spiralling cycle of mutual acts of revenge. The path dependency inherent in this strategy of appeasement becomes apparent when looking at the 1990s when the SPLM/A, at that point in time still itself a rebel militia, insisted on including a general amnesty for acts committed during the preceding period in each of the successive cessation of hostilities and peace agreements (HRW, 1996: 340, 2009: 69–70). Even the Comprehensive Peace Agreement of 2005 which cleared the path to autonomy for the South on the one hand allocated political posts to the heads of armed militia groups but on the other hand did not include any specific provisions on how to deal with past crimes committed during the wars. This trend continues to the present day. In June 2016, a month before Machar would once again flee from Juba, he and Kiir wrote a joint op-ed in the New York Times (Kiir & Machar, 2016): In contrast to reconciliation, disciplinary justice – even if delivered under international law – would destabilise efforts to unite our nation by keeping alive anger and hatred among the people of South Sudan.

Hence, a truth and reconciliation commission was to take the place of the hybrid court and ensure lasting peace. Two years later, in the course of signing the current peace agreement, Salva Kiir unilaterally passed an all-encompassing amnesty for Machar and his fighters for war crimes they may have committed (Dumo, 2018). This stands in stark contrast to opinion polls which show that a clear majority of South Sudanese oppose amnesty for those who have perpetrated atrocities during the civil war (SSLS, 2015; Willems & Deng, 2016). A forum of young South Sudanese leaders likewise spoke out against impunity and a return to the status quo under the same pre-war leadership clique (SSYLF, 2017). It bears keeping in mind, however, that the judicial system in South Sudan is in a terrible state with judges exhibiting substantial knowledge deficits about the laws

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of the new state and many vacant posts. Moreover, customary law and statutory law exist side by side in South Sudan without proper alignment which in practice have meant that arbitrary rulings and impunity were the norm even prior to the outbreak of civil war (Agwanda & Harris, 2009: 47). This capacity gap notwithstanding, a number of separate state and quasi-state institutions have been created in South Sudan since independence in 2011 with the portfolio of national reconciliation. Their inability to make any headway in furthering reconciliation is rather unsurprising considering the lack of funds, missing (judicial) competences and especially an absence of political but also societal will to reconcile. The Commission on Truth, Reconciliation and Healing, which was to be established according to both the 2015 and the 2018 peace accords was only approved by the Government of South Sudan in January 2021 (alongside the establishment of the hybrid court) and has yet to begin its work. In spite of the government’s official stamp of approval which echoes earlier public pronouncements by president Kiir in support of a hybrid court (Bior et al., 2017), the close ties between leading politicians and the security sector mean that unfettered cooperation is highly questionable. In addition, leading South Sudanese justice officials reject the hybrid court on the grounds that it would restrict national sovereignty (UNSC, 2021: 15). Thus, Riek Machar’s public apology for the Bor Massacre of 1991 (Sudan Tribune, 2011) and Salva Kiir’s repeated apologies for the civil war that broke out in 2013 (e.g. Badmus, 2016; Cornish, 2018) have not been backed up with respective deeds such as standing down from their leadership positions.

3.1.4

The African Union and the Prosecution of War Criminals in South Sudan

Finally, the African Union (AU) has been strongly involved in South Sudan’s recent conflicts. The AU has been intricately involved with the development of the R2P doctrine and several months prior to the UN world summit in New York in 2005 which officially established the responsibility to protect passed the Ezulwini Consensus that showed support for the principles of the responsibility to protect and for preventative collective action. In 2004, the AU had already proved true to its word by sending a peacekeeping mission to Darfur, only the second large-scale mission after Chad in 1981–1982 (Mwanasali, 2010). Yet, seemingly contradicting its ostentatious support for R2P, the Ezulwini Consensus contained a clause that the responsibility to protect should by no means undermine national sovereignty.7 Non-interference into a state’s domestic affairs thus remains a core pillar of the African Union’s security edifice (Dembinski/Schott 2014: 372). In December 2013, a mere fortnight after the outbreak of violence in South Sudan, the AU’s Peace and Security Council already called for a commission of inquiry into the events that led to the start of the civil war (AUPSC, 2013). Headed by the former 7

The Ezulwini Consensus can be accessed here: http://www.un.org/en/africa/osaa/pdf/au/cap_scr eform_2005.pdf.

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president of Nigeria Obasanjo, the African Union Commission of Inquiry on South Sudan, the first of its kind in the AU’s history, begun its work in March of 2014 and finalized a report by October of the same year. The report blamed the leadership of both the government and the rebel faction personally for very serious human rights violations but stopped short of deeming the ethnic conflict a genocide and failed to publicly name those responsible (AU, 2014: 224, 229). Crucially, the AU leadership in Addis Ababa refused to make the report’s findings public for months on end. Presumably, this decision was informed by the report’s recommendation that the leaders of the warring SPLM factions should not hold office pending an investigation into the crimes they were accused of; a provision that directly contravened the AU’s attempts to bring these very leaders together in a government of national unity. As it stands, the AU’s mission in South Sudan took place against the backdrop of a fundamentally altered global context shaped, among other things, by a precipitous cooling of African governments’ stance vis-à-vis multilateral institutions like the International Criminal Court (ICC) that are alleged to be dominated by Western states and interests. In 2017, Burundi became the first state worldwide to withdraw from the Rome Statute after the ICC had opened an investigation into the Burundian government (BBC, 2017). Allegations of Western dual standards and neocolonial attitudes became particularly prevalent in the wake of the prosecution, eventually withdrawn, of the Kenyan president Uhuru Kenyatta (Schmitt, 2016). While the weaker African states become the theatre of international interference, the international community is much less concerned when similar acts are committed in other parts of the world, so the argument. This line of thinking is one of the reasons why for most participants in the conflict adjudicating the case of South Sudan at the ICC is out of the question. For one, South Sudan has not signed the Rome Statute and Salva Kiir had already categorically rejected the ICC as an institution well before the outbreak of civil war (McNeish, 2013). Neighbouring Kenya’s direct involvement in the peace negotiations as part of the regional organization IGAD, the Intergovernmental Authority on Development, is another factor that almost ensures a hostile stance towards the ICC. And while the new Sudanese government in Khartoum has signed a memorandum of understanding with the ICC in 2021, it has yet to decide on whether to allow former president Bashir to be tried in The Hague. Considering this context, the leading role that the AU has assumed in setting up and steering the planned hybrid court for South Sudan is not without pitfalls. The Extraordinary African Chambers in Dakar that tried Hissène Habré can indeed serve as a rough template and blueprint but otherwise the AU’s record in administering transitional justice is less than stellar. The African Court on Human and Peoples’ Rights in Arusha, Tanzania works very slowly (much like other international courts)—the court was established in 2006 and reached its first binding conviction in 2013— and faces fundamental reservations among AU member states. Political and material support is sorely lacking (Daly & Wiebusch, 2018) and as of 2021, only 31 of 55 AU member states had ratified the protocol establishing the court (excluding South

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Sudan) while only six countries accede to the principle that individuals and other non-state actors can bring cases directly to the court.8 Another central factor that impedes a coherent AU response to the conflict in South Sudan is that several of the continent’s key states have a stake in the conflict and preexisting special relationships with one or both of the major parties to the conflict. Ethiopia tacitly accepted the presence of SPLA-IO fighters on its soil, the DRC tolerated members of the SPLA-IO that had escaped to its territory in 2016 largely out of a lack of state capacity while al-Bashir’s government initially granted Riek Machar refuge in Khartoum both due to longstanding ties and as part of its tried strategy to divide and rule. Uganda and Kenya on the other hand have traditionally stood by the SPLM and Salva Kiir. The capital Juba might well have fallen in early 2014 had it not been for the Ugandan army’s intervention while in 2016 Kenya arrested and deported the SPLA-IO speaker James Gadet back to South Sudan. Perhaps the best illustration that the slogan, ‘African solutions for African problems’ only goes so far as long as mediators are not seen as honest brokers is South Africa’s approach to the conflict. South Africa which had assumed a leading role in conflict mediation agreed to host Riek Machar for a medical stay after his escape from Juba in 2016 but then put him under what amounted to house arrest in an ultimately futile attempt to force an agreement with frantic shuttle diplomacy. Befitting this ambivalence is the statement by the former South African president and AU special adviser on South Sudan Thabo Mbeki who along with the well-known Ugandan academic Mahmood Mamdani declared his opposition to the use of criminal punishment for crimes committed during the war in South Sudan and instead proposed a truth commission on the South African model or an inclusive ‘big tent’ strategy that had been employed in the wake of conflicts in Uganda and Mozambique (Mbeki & Mamdani, 2014). Given this track record, it is not altogether surprising that exasperation with the AU’s leadership apparently played a key part in the U.S. decision in 2021 to reallocate the funds it had originally earmarked for the hybrid court (Gramer & Lynch, 2021).

3.2 Restrictions on National Sovereignty The involvement of a host of mostly Western countries in the process of building a South Sudanese state largely from scratch in the wake of the 2005 CPA meant that the donor community had a good grasp that a renewed outbreak of violence was a distinct possibility and that there was a need to take precautionary measures to prevent this from becoming reality (OECD, 2011: 64). In fact, Amnesty International had already appealed to the UN Human Rights Council well before the outbreak of fighting to instal an international expert on human rights to consult the government of South Sudan (Amnesty, 2012). Very soon after the outbreak of fighting in December 8

The current state of ratification can be found on the African Court on Human and Peoples’ Rights website at: https://www.african-court.org/wpafc/basic-information/#ratification.

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2013, the physical presence of a multitude of international actors in the country thus contributed to calls for a military intervention to halt the violence in the name of the responsibility to protect and to related pleas for a suspension of national sovereignty and a transfer into a system of trusteeship. The argument was that Salva Kiir and his government had lost the ability and hence the legitimacy to govern the country because they had shown themselves not only incapable of protecting their citizens but in fact constituted a danger to their wellbeing. A former secretary of state for African affairs in the American State Department wrote three weeks into the conflict that South Sudan should become a UN-trusteeship, following the example of the Belgian Congo in 1960, and only attain full independence in a slow deliberate process of acculturation (Cohen, 2014). It is remarkable if not exactly surprising to see how the very same political elites that in the 1990s and early 2000s lambasted the Sudanese government’s conduct and human rights record and appealed for (military) support from Western governments and neighbouring states such as Kenya and Uganda, would today uphold the banner of national sovereignty and accuse the West of neocolonial interference. In January 2014 Salva Kiir stated his fundamental opposition to the idea of a trusteeship (Sudan Tribune, 2014) and in the same month characterized the presence of the United Nations Mission in South Sudan (UNMISS) in the country as a form of parallel government (BBC, 2014). Dislike for the UN presence is however not unique to the government side as Riek Machar accused UNMISS of providing logistical support for government soldiers in their fight against his SPLA-IO (Africa Times, 2017). Arguably the most crucial event in the early part of the war that lent support to calls for the national government to be forcibly relieved of its duties was indirectly connected to the conflict in Darfur which had played such a vital role in getting international backing for the responsibility to protect. Whereas the SPLM had largely remained on the sidelines of the war in Darfur in the mid-2000s, during the civil war from 2013 onwards fighters from the Darfuri rebel militia Justice and Equality Movement (JEM) openly sided with Salva Kiir’s faction who in turn granted them refuge in South Sudan. As a consequence, civilians from Darfur were increasingly identified as belonging to president Kiir’s camp which served as a pretext to justify the systematic murder of Darfuri residents of Bentiu after the town had fallen to the rebel SPLA-IO in April 2014. What made this atrocity stand out in the Western public’s attention economy—a virulent factor for the responsibility to protect’s efficacy (Anderson & Brakstad, 2016)—is that a rebel commander allegedly used the local radio to call on citizens to hunt down people from Darfur. The blatant parallels to Radio Mille Collines’s incitement of hatred against the Hutu during the run-up to the genocide in Rwanda were decisive in ensuring a much wider international echo (see, for example, Ragavhan, 2014; Somerville, 2014) than other atrocities committed during the civil war. The largest wave of rhetorical interventionism coupled with calls to abrogate South Sudan’s sovereignty crested, however, when the ‘big tent’ strategy which served as the underlying premise of the South Sudanese powersharing agreement collapsed in July 2016. Partly retracing this very vocal and highly charged public debate that involved international and South Sudanese experts as well as participants

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to the conflict and to the mediation efforts is helpful in showing both the diversity of opinion as well as the impact the concept of R2P has on arguments for and against intervention and (temporary) regime change even if the term itself is not necessarily employed by the participants. On the one hand, there is a large group that comes out against the sacrosanct nature of the principle of national sovereignty. This line of thinking is exemplified particularly well by Kate Almquist Knopf (2016: 3–4): Given the extreme degree of South Sudan’s state failure, the only remaining path to protect its sovereignty and territorial integrity, restore its legitimacy, and politically empower its citizens is through an international transitional administration, established by the United Nations and the African Union (AU) to run the country for a finite period.

Mahmood Mamdani, also a member of the AU’s Commission of Inquiry on South Sudan, favoured an African Union-led transitional government to take over the reins (Mamdani, 2017) whereas a South African lawyer proposed a transitional government made up of technocrats (Sudan Tribune, 2017). Cirino Hiteng, a member of the SPLM’s politburo who had been briefly arrested after the alleged coup attempt in December 2013, meanwhile proposed a trusteeship government under the aegis of the United Nations (Oluoch, 2017). Others went even further in promoting an international intervention that could, if need be, disregard the will of the incumbent government. Princeton Lyman, the former US special envoy to Sudan and South Sudan, argued in the same vein for a robust international intervention into South Sudan because ‘the current leadership and its major opponents have already violated the principles of sovereignty and have forfeited the right to claim it as a basis for resisting more international intervention’ (USIP, 2016). The US Ambassador to the United Nations at the time, Nikki Haley, emphasized in even stronger terms that in South Sudan the U.S. should take sides against the government of Salva Kiir because it was responsible for most of the human rights violations (Diallo, 2017) and in general ‘an unfit partner’ (DW, 2018). Amir Idris, a South Sudanese academic in the U.S., for his part advocated for a military intervention by East African troops on the grounds that sovereignty was a right that a state first had to earn by protecting its population (Idris, 2016). The wellknown Sudan expert Alex de Waal explicitly referred back to the African Union’s own concept of non-indifference in recommending an intervention in South Sudan by the AU’s African Standby Force (Gebrehiwot & de Waal, 2016). These calls for an external intervention extend to members of the South Sudanese opposition. SPLM-IO leader Riek Machar cried for international intervention to topple what he deemed the undemocratic ‘rogue government’ led by his adversary Kiir (Sudan Tribune, 2016). The SPLM’s former Secretary General Pagan Amum who had been imprisoned by the government at the start of the civil war went even further in supporting an armed intervention from abroad with the aim of deposing president Kiir and turning the country over to technocrats supervised by the United Nations (Radio Tamazuj, 2016). Naturally, the government of Salva Kiir has sought to refute these arguments. A recurring theme herein is to relate the resistance to an intervention to joint African

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resistance against Western powers imbued with a neocolonial spirit (Xinhua, 2016). However, in 2016 the South Sudanese government equally rejected the deployment of an additional 4000 IGAD soldiers as part of a Regional Protection Force in South Sudan (Radio Tamazuj, 2017) although this was by all accounts an attempt at continental self-sufficiency along the lines of African solutions to African problems. Overall, the government led by Kiir’s mainstream SPLM faction reacted to ever harsher criticism from abroad not by showing contrition but by promoting especially ruthless hardliners to key posts (Crisis Group, 2018: 8–9). This behaviour is but one piece of proof that the effectiveness of external pressure is closely correlated with the credible threat of painful consequences in case of non-compliance. Yet, plans for an external intervention and a trusteeship are also opposed by other actors without an obvious stake in the game. The independent and well-respected Sudd Institute based in Juba feared a repeat of the Syrian scenario. Much as the fixation on forcing out Bashar al Assad had hardened his position vis-à-vis the opposition, the continuous emphasis on branding the South Sudanese leadership as incompetent criminals had effectively stood in the way of finding a constructive solution to the conflict (Tiitmamer, 2016). For John Prendergast, founding director of the Enough Project whose mission of preventing genocide makes it a natural proponent of the R2P doctrine, the cautionary tales that informed his opposition to international intervention in South Sudan were the disastrous reconstruction efforts in Iraq and Afghanistan led by Western powers (Gettleman, 2017). What stands out among the non-Western states involved in conflict settlement in South Sudan is that they are primarily concerned with strengthening the existing state structure and thus diametrically opposed to an intervention or a trusteeship. Moreover, none of the countries (China, India, South Africa) legitimizes its peacemaking efforts in South Sudan with the R2P doctrine (Nganje, 2014: 15). The global and regional shift of power towards these states that reject intrusive interventions under almost any circumstances is therefore arguably the greatest challenge for attempts to carry out a robust intervention which might as a last resort include a military component (Hopgood, 2014: 195–196). What this extensive debate however highlights above all is how specific interests—be they political or humanitarian, personal or moral—drive each participant to very different conclusions regarding the rights and obligations of the international community to interfere with South Sudan’s sovereignty. Evidently, enshrining the Responsibility to Protect into international law more than one-and-a-half decades ago has done little to settle this debate.

3.3 UNMISS as the Implementing Arm and Fist of the Responsibility to Protect Since independence in 2011, South Sudan has been at the forefront of activities by those UN organs responsible for monitoring and upholding the responsibility to

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protect. The Office on Genocide Prevention and the Responsibility to Protect has regularly published statements regarding ongoing cases that are touched upon by the responsibility to protect and South Sudan has the second-most mentions after Syria. What is more, none of what the former UN Secretary General Ban Ki Moon (2009) deemed the three core pillars of the responsibility to protect are functional in South Sudan: (1) states’ own responsibility to protect their citizens from grave crimes, (2) support and capacity building by the international community to help vulnerable states, and (3) quick and robust collective action when states evidently fail to protect their citizens. A week after the outbreak of civil war in December 2013, the Special Adviser on the Prevention of Genocide Adama Dieng and the Special Adviser on the Responsibility to Protect Jennifer Welsh jointly cautioned that this could be the start of major bloodshed unless the South Sudanese conflict parties came to their senses and received substantial assistance from their international partners (UN, 2013). In November 2016, Dieng went so far as to warn of a looming genocide (UN, 2016). One reason why the UN Security Council did not heed these warnings to become more active itself may lie in an opportune if cynical interpretation of the ubiquitous AU slogan ‘African solutions to African problems’. As many diplomatic missions considered the situation in South Sudan too protracted and hopeless, they all too eagerly allowed the AU and IGAD to take the lead in trying to mitigate the crisis (Zifcak, 2015: 71). Assessing the United Nations’ role and especially the UNMISS mission in South Sudan’s record in terms of the principles of the responsibility to protect has to result in an ambivalent verdict. For one, opening the gates of UN bases in Juba and other places in South Sudan to host tens of thousands of South Sudanese and rebranding bases as Protection of Civilians sites has certainly saved many lives. In May 2014, the mission’s mandate was officially adjusted to account for the changed circumstances and now includes the protection of civilians, the monitoring of human rights standards, assistance in providing humanitarian aid and help in implementing the ceasefire agreement. The new emphasis is clearly and explicitly on the protection of civilians (Stamnes, 2015). In accordance with this reordering of priorities, there are more than a few voices that interpret the United Nations’ actions on the ground as a decisive turning point towards putting human security at the core of its mission (Malan & Hunt, 2014). Such a conception of security that puts the civilian population’s wellbeing front and centre would appear to be a natural and logical step of seeking to transpose the responsibility to protect’s moral impetus into practical measures. UNMISS’s fast and decisive reaction to the crisis in South Sudan indeed marks a radical departure from the timid and tentative approach to similar crises in Bosnia and Rwanda in the 1990s. It also marks, however, a radical departure from the very restrictive interpretation of the mandate that had previously characterized the mission and had among other things prevented UNMISS from interfering into local spirals of violence in Jonglei (UN, 2014). After the fact, UNMISS has taken to presenting its innovative ad hoc actions as setting the agenda for a broader future rethink of organizational strategy (Briggs, 2017). Alas, UNMISS has not been able to fully live

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up to its own responsibility to protect in the Protection of Civilians (Poc) Sites as evidenced by the killing of 50 residents in the PoC-site in Bor in 2014 (HRW, 2014b) and the murder of more than 30 civilians in the UN compound in Malakal in 2016 (MSF, 2016). Housing hundreds of thousands of internally displaced persons (IDPs) also presents major challenges to UNMISS police to maintain order and protect residents within the camps from sexual exploitation, ethnic violence and other forms of aggression (Bellamy & Hunt, 2015: 1291). On the other hand, UNMISS has completely failed when it comes to the preventive side of the responsibility to protect as an instrument to preempt and stifle violence before it can spread. In December 2013, Hilde Johnson, the then-head of UNMISS, admitted that she had by no means foreseen the crisis and that barely a month earlier UNMISS had still judged the state of the country cautiously optimistic (Crisis Group, 2014: 28). While there was awareness of ethnic misgivings in the country, a civil war was simply not considered a genuine possibility which was also reflected in the fact that ‘[t]he UN Security Council explicitly tasked the UN Mission in South Sudan (UNMISS) to deploy a peacekeeping operation focusing mostly on supporting the country’s institutions’ (Crisis Group, 2021: 4). As such, UNMISS’ performance as protector of the responsibility to protect can also be seen in a very different light. One of the largest UN missions worldwide with more than 14.000 soldiers and 1.600 police was not capable to put a halt to or at least dent the ethnic killing that was taking place in the streets of Juba. Considering that the fighting in Juba in July 2016 between the army and troops loyal to Riek Machar occurred in the UN compound’s immediate vicinity, nothing appears to have changed regarding the UN mission’s capacity and willingness to employ military means in the service of the responsibility to protect. The only immediate consequence for the UN was that the commanding officer of the Juba UN base was relieved off his duties. Moreover, mainstreaming the concept of human security in South Sudan is scarcely possible if the ruling SPLM whose cadres comprise many former fighters continues to adhere to a classic conception of security as regime security (Frahm, 2017: 277); and as long as UNMISS is militarily not up to par with either the national army or the rebel militias (Dönges, 2016) and struggles to protect humanitarian workers (USAID, 2021). Seeing how the UN is once again a bystander in intensifying spirals of violence that have engulfed regions of South Sudan where local grievances and competition over access to resources (land, water) have turned deadly, the self-proclaimed reorientation towards human security looks dubious to say the least. Especially considering that first-hand evidence of these localized crises which are however often connected to national politics has been furnished not only by independent observers such as Crisis Group (2021) or the Small Arms Survey (McCrone, 2020) but by the UN’s own Panel of Experts on South Sudan (UNSC, 2021).

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3.4 Sanctions as a Preventative Tool of the Responsibility to Protect In the continuous scale of measures to steer governments with dismal human rights record towards a path of betterment, sanctions against individuals, companies or sectors of the economy are relatively low on the spectrum compared to direct interventions or the transfer of national sovereignty to third parties. At the same time, however, it is considerably easier to reach an international consensus to levy and monitor international sanctions which is why—in spite of decidedly mixed results in affecting change—sanctions continue to be part of the standard toolbox in dealing with violent crises (Bapat & Kwon, 2015). As mentioned above, both major parties to the conflict in South Sudan have repeatedly broken ceasefire agreements they had signed up to. Although these transgressions were meticulously documented by organizations such as Crisis Group, Amnesty International, Human Rights Watch but also official bodies like the IGAD Monitoring and Verification Mechanism,9 those responsible did not feel any tangible repercussions of their actions. As the situation in South Sudan did not improve, two forms of sanctions were considered and eventually passed: (1) freezing accounts and imposing a travel ban on high-ranking generals of the army and the rebels that are accused of having committed or ordered atrocities and (2) the imposition of an arms embargo.

3.4.1

Targeted Sanctions Against Individuals

In March 2015, the UN Security Council (including China) established a sanctions regime against individuals that actively undermine the peace in South Sudan which foresees a travel ban and the freezing of all their accounts based outside of South Sudan.10 A few months later, the first individuals were sanctioned, by 2023 eight South Sudanese remain on the list, including five from the faction of Salva Kiir and three from the SPLA-IO.11 The most common criticism directed at these sanctions is that they are toothless because the affected individuals have resources and means to circumvent them. General Jok Riak, for example, was able to attend a conference in China despite the travel ban imposed against him (Oduha, 2018). Others see an irresoluble dilemma intrinsic to sanctions. By sanctioning the very actors who by virtue of their position are essential to a lasting peace settlement, sanctions run the risk of driving the sanctioned to continue the fight instead of seeking compromise and thus perverting their intended effect (LeRiche, 2015). 9

The IGAD Monitoring and Verification Mechanism can be accessed here: https://southsudan.igad. int/index.php/2014-08-07-10-16-26. 10 http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/2206(2015). 11 The list of those sanctioned by the UN Security Council can be accessed here: https://www.un. org/securitycouncil/sanctions/2206/materials/summaries

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A novel entry to this longstanding debate comes from a report by The Sentry (2016), an offshoot of the George Clooney-backed Enough Project that had been founded in 2003 at the height of public interest into the conflict in Darfur. Said report investigated in minute detail the extent to which individuals connected to South Sudan’s leading elites have enriched themselves at the expense of the public. A follow-up report (The Sentry, 2018) uncovered how profits from the state-owned petroleum company Nilepet were being used to fund militias that had committed war crimes. Beyond showing the degree to which international focus has shifted towards the SPLM’s manifold failings vis-à-vis the people they had once set out to liberate, the Sentry’s approach adds a new tangent to R2P’s interventionist core message. While also appealing to the international community, the report directly speaks to Western institutions and banks to sever ties and end cooperation with the South Sudanese government and to freeze the financial assets of certain politicians and their families. A good way to gauge how influential this argument has proven to be is to read it alongside the UN Special Adviser on the Prevention of Genocide’s separate appeal to the United Nations in the same year to act against international banks and companies whose business dealings with the regime in Juba only enabled the continued pursuit of the civil war (UN, 2016).

3.4.2

Arms Embargo

For years, the U.S., China, Ukraine and Russia had no qualms about supplying Juba with weapons (Small Arms Survey, 2012). This changed when in July 2018 the United Nations passed a comprehensive arms embargo on South Sudan two years after the same proposal (initiated by the U.S.) had been rejected. The UN decision was preceded by separate embargoes put into force by the U.S. (also in 2018) and the European Union (2011). Caution is warranted when implying a causal relationship, but the passage of these embargoes indicates that persistent lobbying by civil society actors and NGOs can attain their objectives if the international environment changes and aligns sufficiently so that different international actors consider these objectives acceptable. HRW and Amnesty International’s campaign, for example, goes back to 2014 (HRW, 2014c) and continues to this day (HRW, 2021). From the perspective of the Government of South Sudan, the arms embargo, sanctions, and travel ban—which were most recently renewed for another year in May 2022—constitute not only an unwarranted nuisance but also an infringement on national sovereignty (Xinhua, 2021). Alas, similar to the targeted sanctions against individuals, not too much is to be expected from these measures. A large stock of weapons is already present and circulating on the ground in South Sudan reducing the need for imports. Moreover, gazing to the situation north of the border further dampens expectations of lasting pacification in South Sudan. In Darfur, a UNsanctioned arms embargo has been in place since 2004 without significantly affecting the material endowment of local parties to the conflict (Small Arms Survey, 2016).

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4 Conclusion Contemporary debates about the responsibility to protect as it regards South Sudan differ from past debates not only in terms of who is to be protected from whom. Much more than in the 1980s and 1990s, South Sudanese are no longer the objects and observers of international debates but actively engage with said debates about the advantages and consequences of R2P for the conflict-ridden country both in the capital and in online fora. In the course of the civil war that erupted in December 2013, four disparate dimensions that are however all directly linked to the principles embodied by the responsibility to protect doctrine have been at the forefront of these debates: (1) how to ensure judicial accountability for atrocities, (2) whether or not to restrict national sovereignty in a crisis, (3) how the UN should respond to violence happening under its nose and (4) to what extent sanctions and embargoes play a part in preventing human rights violations. Evidence from South Sudan during the civil war (2013–2018) clearly shows how international norms are modified when applied to actual events on the ground and how local, regional and international actors employ the norm or rather the specific manner in which they interpret the norm for their own objectives. This strategic instrumentalization of the R2P norm as part of the toolbox of international relations and as a means of war and conflict does not automatically disqualify the responsibility to protect’s value as a measure to save lives and to protect against crimes against humanity. Although the United Nations’ and UNMISS’s record in South Sudan since December 2013 is not without reproach, the emphasis on UN bases as protective havens has a signalling effect beyond East Africa. It will be very hard for the UN in a future crisis to go back on the precedent set in South Sudan and in applying a more restrictive interpretation of its mandate to abandon civilian populations to their fate. Human security as a guiding concept for engagement has in the process emerged as a byproduct of the R2P norm which follows the same underlying preventative logic but is easier to implement than an ultimately rather vague concept reliant on international cooperation of a multitude of stakeholders. The case of South Sudan also shows how certain instruments and institutions that are legitimized by the responsibility to protect such as an arms embargo or the founding of a hybrid court can through persistent lobbying and advocacy make their way from the minds of activists, NGOs and think tanks onto the agenda of national and international decision-makers. The key caveat being that in addition to patience, it is vital for these measures to coincide with the preferences and national interests of powerful countries. Having said that, in democratic countries at least the definition of what constitutes the national interest is increasingly being influenced by these very civil society actors. The consequential engagement of NGOs and especially their close coordination with civil society actors in South Sudan emphatically puts to bed the postulate that the responsibility to protect is but a Western diktat imposed on the rest of the world against their will. The extensive and contentious debates over the legitimacy, the practical applicability, and the limitations of the responsibility to protect during and

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after the recent South Sudanese civil war stress the R2P norm’s considerable impact on how international organizations, individual states and even rebels and opposition movements frame and legitimize their actions. It would not be wrong to claim that the often inadequate actions by almost all those involved in mitigating and ending the extremely violent fighting in South Sudan have nonetheless contributed to strengthening and reifying the norm of the responsibility to protect as an indispensable and, depending on an actor’s perspective, also unavoidable pillar of international crisis and conflict management and prevention. That same approach by many of the international actors involved in conflict settlement and peace negotiations raises yet another important question that is however very hard to answer conclusively. There is a relatively wide consensus that when international guarantors of a peace agreement fail to act upon blatant disregard for that peace agreement, then this enablement of impunity violates the principle of the responsibility to protect. There is on the other hand much less agreement over whether the inability to design suitable post-conflict arrangements or the unwillingness to invest political capital or to deploy national troops should likewise be considered as violations of the R2P norm. Be that as it may, the case of South Sudan once again underlines the core conundrum that for external actors the costs of doing nothing remains substantially lower than the expected political, military, and financial costs of getting involved in a conflict touched upon by the responsibility to protect, which helps to explain the widespread aversion to interventions in diplomatic circles (Traub, 2010: 24). Pleas for peace and compromise only have a chance of finding an open ear in South Sudan when they are accompanied by credible threats in case of non-compliance. UNMISS’s novel approach of publicly naming and shaming perpetrators of human rights abuses is a step in the right direction. South Sudan’s recent history also underscores the validity of the truism that different components of the responsibility to protect, from judicial prosecution over peacekeeping missions to humanitarian aid, may conflict with one another and even be mutually exclusive (see, for example, Mills, 2015). What is more, South Sudan’s experiences with reconciliation efforts at the local and at the national level going back to the 1990s pose a challenge to a different aspect of the responsibility to protect. If most peace agreements and accommodation efforts on the local level have been led by local leaders whereas reconciliation on the national level has been stillborn and treaties negotiated under international supervision have been regularly broken, then why should attempts to implement the responsibility to protect primarily address their efforts at national governments instead of subnational groups (see also Jok, 2021)? This question which is intricately linked to the debate over the status and value of national sovereignty is particularly salient in South Sudan where fighting on the local level has only intensified after the conclusion of the 2018 peace accords. Yet, beyond looking at whom to address R2P efforts to, the case of South Sudan also throws a light back on the international community as the guardian of the responsibility to protect. Comparing the current international environment to that of the unipolar moment during the 1990s when the norm of the responsibility to

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protect and the conflicts in Southern Sudan first rose to the forefront of international concerns, it is very difficult to come to a conclusive verdict on whether the R2P norm’s influence on political decision-making has in fact increased. In one respect, scepticism is in order. Media coverage of the most recent civil war in South Sudan confirms Anderson and Brakstad’s (2016: 113) observation that Western media increasingly portray humanitarian crises from Syria to Yemen to the Central African Republic as tragic occurrences akin to natural disasters that are effectively immune to international efforts at prevention or mitigation. It is symptomatic that during a crisis the multitude of frequently contradictory and impossible-to-verify news and rumours that come out of a hard-to-access country such as South Sudan lead observers to throw their hands up in frustration and in the process absolve international actors from any responsibility for events on the ground. That is especially misguided in the case of South Sudan because there those directly responsible for the suffering of hundreds of thousands of people can be identified with relative ease. Admittedly much more challenging is the task of apportioning blame and responsibility to regional and international actors who allowed this suffering to occur right under their noses. The particularly large number of actors involved and present in South Sudan—including for the first time a significant number of Chinese blue helmet soldiers (Crisis Group, 2017a)—raises with added urgency the question of agency (Rossi, 2016/2017: 179) that represents R2P’s core dilemma: which actors should abide by the responsibility to protect’s moral impetus to actually intervene and act and, conversely, whose hesitancy and inaction should be condemned as stepping onto the principle of the responsibility to protect. The recent civil war in South Sudan has made it abundantly clear that high-ranking political decision-makers will have to agree to a satisfactory response to this dilemma for the responsibility to protect to truly live up to its immense promise.

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Ole Frahm (Dr.) is visiting researcher at Kadir Has University in Istanbul and lecturer at the University of St Gallen and at Leuphana University Lüneburg. He has studied politics, philosophy, economics, and European studies at the universities of Oxford, Bath, Paris (Sciences Po) and Berlin where he completed his PhD on statebuilding and nationbuilding in Sub-Saharan Africa at the Humboldt Universität. Frahm has teaching experience in Germany, Switzerland, Algeria and Turkey, has published and presented his research widely and worked at think tanks and in political consultancy

Rethinking Turkey’s Approach to R2P: Turkish Foreign Policy Towards the Syrian Civil War 2011–2017 Volkan Sey¸ ¸ sane and Çi˘gdem Çelik

Abstract This chapter analyzes the use of R2P in Turkish foreign policy (TFP) towards the Syrian civil war from its beginning to early 2017. Turkey has appeared as one of the key actors in the Syrian conflict. Moreover, Turkey’s approach to R2P is closely intertwined with its ambitious policy agenda in the civil war. Therefore, this chapter examines the question as to how the use of R2P has changed as TFP transformed over the course of the Syrian civil war. It also discusses the ways in which R2P has been challenged and/or confirmed by the discourse and practice of TFP towards Syria. In this context, this chapter argues that the use of R2P in TFP during the Syrian civil war is a telling example of the misconduct of R2P by states to legitimize their interventionist policies across their borders.

1 Introduction Since its inception in 2001, responsibility to protect (R2P) has been the focus of political and academic debates regarding the role of the international community in protecting civilians from mass atrocities. Furthermore, it has turned out to be a more acute question after the outbreak of the Arab uprisings in 2011 across the Middle East and North Africa (MENA). Libya is the first example in which R2P was invoked by the United Nations Security Council (UNSC) in 2011 for the use of force, which resulted in the imposition of a no-fly zone (Dunne & Gifkins, 2011: 523). The civil war in Syria also constitutes an R2P-type situation. In more than ten years, hundreds of thousands of people have lost their lives, and millions of Syrians have V. Sey¸ ¸ sane (B) Department of International Relations, Anadolu University, Eski¸sehir, Turkey e-mail: [email protected] Ç. Çelik Department of Political Science and Public Administration, Turkish German University, Istanbul, Turkey e-mail: [email protected] © Springer Nature Switzerland AG 2023 A. Reichwein and M. Hansel (eds.), Rethinking the Responsibility to Protect, Contributions to International Relations, https://doi.org/10.1007/978-3-031-27412-1_8

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been internally displaced or had to flee the country. Moreover, the Syrian conflict has come to create serious threats to international and regional security. Despite the human tragedy in Syria, international society has failed to act collectively to end mass atrocity crimes due to the impasse at the UNSC. For that reason, some scholars argue that the Syrian crisis has signified the demise of R2P (Nuruzzaman, 2013: 63). Nevertheless, we still consider the Syrian civil war to be an important case for examining the question of R2P. This is not only because of the failure of the international community to effectively respond to the humanitarian crisis, but also for the use of R2P by individual states in shaping their foreign policy discourses and practices towards the civil war in Syria. Sharing its longest border with Syria, Turkey has been one of the key actors in the Syrian civil war from the very outset. Moreover, its approach to R2P is closely intertwined with its foreign policy agenda in Syria. This chapter, therefore, seeks to analyze the use of R2P in Turkish foreign policy (TFP) in the Syrian civil war from its beginning to early 2017. More specifically, we aim to examine the question of to what extent R2P has been challenged and/or confirmed by TFP towards Syria during the civil war. In the academic literature, Turkey’s approach to R2P has recently drawn attention, particularly in light of the developments in Syria and Libya following the outbreak ¸ sane & Çelik, of the Arab uprisings (see Aksoy & Kılıç, 2019; Erdo˘gan, 2017; Sey¸ 2015). Coming at an unexpected time, the Arab uprisings presented Turkey with a dilemma between ethics and strategic interests (Öni¸s, 2012: 45–46). Prior to the uprisings, prioritizing economic interests and cultural and religious affinity, the Justice and Development Party (AKP) governments had managed to establish close ties with existing authoritarian regimes, including Syria, without referring to the promotion of democratic values (Öni¸s, 2014: 207). In this respect, the Arab upheavals jeopardized not only Turkey’s improved relations with the existing regimes, but also its political and economic investments in these countries. On the other hand, political transitions across MENA provided Turkey with an opportunity to increase its influence as a role model. TFP makers, thereby, optimistically considered that the wave of democratic transitions in its neighbourhood would bring friendly and ideologically close governments in accordance with their own values and interests, which would not only reinforce its regional leadership role but also enable Turkey to emerge as a global power (O˘guzlu, 2016: 60). Thus, Turkey appeared as a vocal supporter of popular demands for democracy from the very onset and welcomed the collapse of the regimes in Tunisia and Egypt. Although its initial reactions were cautious towards the uprisings in Libya and Syria, Ankara eventually incorporated the discourse of “democratisation” for these countries as well after the failure of its efforts at stable transitions (Altunı¸sık, 2013: 3). Thus did Turkey adopt an ambitious strategy and became a major advocate of political transformations and regime change in the course of the Arab uprisings. TFP makers represented this idealistic turn as a “moral-based” and “value-driven” foreign policy (Davuto˘glu, 2012: 5). In this new conceptualization of TFP, the Syrian case in particular became a significant indicator of Turkey’s ambitions for regional leadership. Against this background, in an earlier work, we have argued that while R2P was evident in the discourse of TFP makers, its particular policy instruments—apart

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from accepting large numbers of Syrian refugees—posed serious challenges to R2P in practice. Although Turkey consistently defined the Syrian civil war as an R2P-type situation, TFP contributed to further instability, which had not only contradictory but also counterproductive results in terms of R2P. We have concluded that R2P became a justification for Turkey’s uncompromising policy towards the Syrian regime and an instrument in TFP to invoke an international intervention in order to achieve its goal of regime change in Syria (Sey¸ ¸ sane & Çelik, 2015). By early 2017, significant changes had taken place in TFP vis-à-vis Syria. First, in its initial years, Turkey identified the Syrian conflict as predominantly a humanitarian issue. However, mainly due to the rise of the Syrian Kurdish armed group, the Democratic Union Party (PYD)/Peoples Protection Units (YPG), and the Islamic State in Iraq and Syria (ISIS) in northern Syria, Turkish policy was increasingly redefined in terms of national security. In particular, the expansion of the territory under the PYD/YPG control and their declaration of a “federal democratic system” in northern Syria in March 2016 led to a dramatic shift in Turkey’s strategic priorities. While the main objective of TFP until 2016 was the toppling of the Assad regime, preventing the emergence of an autonomous Kurdish region in northern Syria has become its top priority (Altunı¸sık, 2020). Second, despite its constant calls for international intervention, Ankara had refrained from any unilateral military action until launching its first major military operation in Syria, Operation Euphrates Shield, in August 2016. Since then, the frequent use of military force has become one of its preferred means for achieving its foreign policy goals. As of June 2021, Turkey conducted four cross-border military operations in Syria, mainly aiming to prevent the formation of a unified corridor under PYD control across its border (Altunı¸sık, 2020).1 Last but not least, Turkey had remained inflexibly bent upon regime change and opposed any diplomatic solution that could keep the Assad regime in power. However, since the summer of 2016, this uncompromising position has been revised as Turkey began to cooperate with Russia on Syria. While having divergent views on the political future of Bashar-al Assad, the two countries have been coordinating a joint ceasefire plan and working on a political process to end the Syrian conflict (Köstem, 2020). Thus, with the Moscow Declaration of December 2016 and the subsequent Astana Process, Turkey became one of the guarantors of a political settlement between the Syrian government and the opposition. Having taken these developments into account, the stage has been set for the reconsideration of TFP towards Syria with regard to R2P. R2P emerged as “a pragmatic response” to a shared international problem of how to reconcile human protection with the principles of state sovereignty and non-interference in an increasingly pluralist international order (Ralph, 2018). It entails responsibilities upon both individual states and the international community to protect the safety and welfare of civilians (ICISS, 2001). The UN World Summit Outcome Document of 2005 identifies four atrocities—genocide, crimes against humanity, war crimes, and ethnic cleansing—from which each state has the responsibility to protect its populations (UNGA, 2005: 30). However, R2P falls to 1

Other three military operations are Operation Olive Branch in January 2018, Operation Peace Spring in October 2019, and Operation Spring Shield in February 2020.

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the international community if the state manifestly fails to protect its own people from these mass atrocities, or commits such crimes itself (Badescu, 2011: 169). Despite its universal endorsement by the 2005 UN World Summit, the meaning and implementation of R2P is still subject to considerable contestation. However, unlike conventional constructivist assumptions on norm internalization, most recent “critical” and “post-positivist” constructivist accounts consider contestation as part of normative evolution and argue that the meaning of a norm can never be fixed. According to these critical accounts, R2P is particularly open to such contestation as states can debate when, where, whether and how to activate it. R2P represents what Welsh (2013) calls “a complex norm” in this regard. While a settled consensus exists over its “proscriptive element” or “substantive core”, i.e. human protection, R2P’s “prescriptive” meaning is inherently indeterminate, especially with regard to how to implement its substantive moral core (Ralph, 2017, 2018). However, Ralph (2018) finds this indeterminacy useful because he argues the knowledge of how best to protect civilians from mass atrocities largely depends on the contingencies of a particular crisis. Therefore, he suggests a research agenda that will focus on various meanings of R2P and assess how well practices—that those meanings prompt— ameliorate the vulnerability of threatened populations in a particular context. While acknowledging significant contributions of critical constructivism to our understanding of R2P’s normative evolution, we still consider that developing an analytical framework remains necessary for addressing the question as to whether state practice confirms or challenges the substantive moral core of R2P. Therefore, in this chapter, R2P refers to an analytical framework that includes three main tools for the assessment of foreign policy conducted by an individual state.2 We remain within the framework of the 2005 UN Outcome Document in defining the scope of R2P and following the recommendations of the 2009 Secretary-General’s three-pillar approach (Ban, 2009) in delineating means to be deployed in its implementation. Therefore, the goal of R2P must essentially be the protection of civilians from the four aforementioned atrocities so that any other motives behind foreign policy are defined as a challenge to R2P. Means that would be deployed in R2P-type situations must be permissible and legitimate under the rubric of international law. In addition to non-coercive ones, the use of force would only be legal if it be a last resort and with the authorization of the UNSC. The impact of R2P can be defined as the effective prevention of the four crimes. Therefore, in this paper, the goals, means, and impact of foreign policy that conform to these definitions will be defined as R2P-confirmed, while those identified as either out of the scope of R2P or contradictory to the norm’s substantive core or even counterproductive will be identified as R2P-challenged. Within this analytical framework, this study focuses on the use of R2P in TFP over the course of the Syrian civil war and discusses the ways in which R2P has been challenged and/or confirmed by the discourse and practice of TFP towards Syria. Covering the period from the beginning of the Syrian uprising to early 2017, this chapter argues that the use of R2P in TFP during the Syrian civil war is a 2

The definitions of these three analytical tools are based on Nathalie Tocci’s theoretical model of normative foreign policy. See Tocci (2007).

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telling example of the misconduct of the norm by a state to legitimize its interventionist policies across its borders. In this regard, the use of R2P in the discourse and practice of TFP during the civil war was instrumentalized by the TFP elite for achieving their own aspirations for regional leadership by transforming the Syrian regime into a friendly and ideologically closer one rather than promoting the norm’s humanitarian goals. As such, R2P has been used in the discourse of TFP to justify its over-involvement in the civil war as well as invoke an international intervention to bring about regime change that TFP makers considered essential for Turkey’s regional dominance. In the end, not only did most of its policies prove ineffective in protecting civilian populations in the civil war but also its general practice largely challenged the substantive moral core of R2P. This chapter is divided into three sections: the first section focuses on Turkey’s endorsement of R2P, based on the official statements during annual interactive dialogues held by the UN General Assembly (UNGA). The second chronologically explores the transformation of TFP towards Syria between March 2011 and early 2017, with a particular focus on references to R2P. In the final section, we analyze how R2P has been challenged and/or confirmed by TFP in the course of the Syrian civil war.

2 Turkey’s Approach to R2P Turkey’s approach to R2P has evolved over time and can be divided into three main phases. Although Turkey never objected to R2P, Ankara adopted a low profile and cautious attitude in the early phase of its normative trajectory. During informal discussions before the 2005 UN World Summit, Turkey did not make an open statement, but it supported the norm (ICRtoP n.y.). In its first public statement on R2P in July 2009, it acknowledged the adoption of R2P as “one of the major achievements of the UN World Summit in 2005”, defining the protection of civilians as a common concern and priority for the international community (UNGA, 2009: 21). Despite its endorsement of the norm, the initial attitude of Turkey was still cautious in two main respects: First, it warned against the fact that R2P had been misused on several occasions in the past. In order to overcome the misperception and misuse, it called for further clarification of its implementation. Second, and more importantly, Turkey emphasized the need to be extremely careful with regard to coercive means under the rubric of R2P when the responsibility falls on the international community. It underlined Pillar Two of R2P, stating that its core was to ensure states meet their responsibilities through capacity-building and technical assistance provided by the international community (Permanent Mission of Turkey to the United Nations, 2009). In the second phase, beginning in 2012, Turkey appeared as an active upholder of R2P. On several occasions at the UN, it expressed its full support for the norm and reiterated its recognition of R2P “as a valuable, important, and relevant concept” (Turkey, 2013). However, the initial cautious approach disappeared from Turkey’s discourse, particularly with regard to the use of force under the R2P framework.

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Turkey began to directly refer to Pillar Three of R2P. This shift in its discourse was closely tied to TFP regarding the Syrian civil war. In September 2014, the Turkish official statement clearly indicated that: The Third Pillar suggests that the international community must be prepared to take stronger measures, including the collective use of force through the UN Security Council, if a state fails to protect its population or is the perpetrator of crimes. Various UN officials and numerous reports have described the grave atrocities in Syria as ‘crimes against humanity.’ The principles of R2P are clear. The international community cannot and should not remain idle when every hour costs innocent lives and has a responsibility to protect civilians. (Çevik, 2014)

As Turkey became a staunch supporter of international military action in Syria, it adopted a more interventionist view of R2P. In the third phase, from 2015 onwards, the interventionist view of the norm and direct references to Syria disappeared in the statements of Turkey during UNGA dialogues on R2P. In the previous phase, the priorities of TFP in the Syrian civil war shaped its attitude towards the norm, but in the third phase, it is the consequences of the civil war that have determined its approach to R2P. Since Turkey was frustrated by its inaction in Syria due to Russian and Chinese vetoes, Ankara began to openly question the structure and legitimacy of the UNSC (Erdo˘gan, 2017: 44). Therefore, the focus of its discourse has shifted towards the application of R2P. This can be clearly seen in Turkey’s call for “the establishment of a more inclusive and objective decision-making mechanism” by restricting the veto rights of permanent members of UNSC in R2P-type situations (Turkey, 2015). A striking point is that Turkey has become very critical of the procedural aspect of R2P while substantially supporting its normative core. Furthermore, Ankara has advocated broadening the scope of the concept to include the protection of refugees or asylum seekers escaping from R2Ptype crises (Turkey, 2016). In light of these assessments, it is clear that there is a close correlation between TFP towards the Syrian civil war and its approach to R2P.

3 TFP in the Syrian Civil War The Syrian civil war has proved to be a challenging test for TFP. Not only is the relationship between Syria and Turkey at its lowest level in history, but the crisis in Syria has also constituted a major blow to the rising power status of Turkey in MENA. During the 1980s and 1990s, the tension between the two countries was quite high due to several disputes. While major issues until the Gulf War were the status of Hatay and the distribution of water from the Euphrates, Turkish-Syrian relations became more securitized in the 1990s due to the support of the Syrian government for the Kurdish separatist movement, the Kurdistan Workers’ Party (PKK), in Turkey. However, after the rise of the AKP to power in the early 2000s, the Syrian-Turkish relationship changed drastically. The normalization process that had begun in 1998 was accelerated, and bilateral cooperation further deepened in political, economic, and military fields (Çakmak, 2016: 699–701). Syria was introduced as a success story within the framework of “zero problems with neighbours”. Becoming strategic

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partners in the region, the two countries established the High Level Strategic Cooperation Council and signed a free trade agreement (Altunı¸sık, 2016: 39). Furthermore, relations were also improved in the military field as the two countries conducted a joint military exercise in 2009 (Ye¸silyurt, 2013: 420). As of August 2011, there were around 50 agreements that increased economic and commercial relations as well as lifting visas between the two countries (Robins, 2014: 200). In accordance with the rise of Turkey in the region as a “trading state” (Kiri¸sçi, 2009), Syria was strategically important for TFP as a gateway to the entire Arab World (Al-Hatem, 2011). However, after the outbreak of the civil war, Syrian-Turkish relations deteriorated radically.

3.1 Pushing for R2P: Turkey’s Ambitious Policy of Regime Change in Syria When the uprisings broke out in March 2011, the main objective of TFP was to achieve an internal solution through encouraging the Syrian government to introduce constitutional reforms (Ta¸spınar, 2012: 137–138). The initial reaction of Turkey was reconciliatory, and Ankara acted as a mediator between the Syrian government and the opposition (Erdo˘gan, 2017: 113–114). Thus, TFP makers refrained from taking an anti-Assad stance (Tziarras, 2012: 132). Turkish leaders were self-confident that they had leverage over the Assad regime. Prioritizing the restoration of stability in the country through mediation, Ankara offered “every possible assistance” to Damascus for the implementation of reforms (Schenker, 2011). By early June 2011, when the first wave of Syrian refugees fled to Turkey after the attack of the Syrian security forces, Ankara gradually shifted its policy and adopted a dual approach (Öni¸s, 2012: 54). On the one hand, Ankara kept communication channels open with Damascus and carried on its diplomatic initiatives to convince the regime to end the violence. In this sense, TFP makers still sought a political settlement through the existing regime. On the other hand, Turkey began to support the Syrian opposition. In early June, the opposition was permitted to hold the “Conference for Change in Syria” in Antalya (CNN 2 June 2011). Ankara also allowed the formation of the armed Syrian opposition, the Free Syrian Army (FSA) in July 2011. After the failure of the six-hour meeting between Turkish Foreign Minister Ahmet Davuto˘glu (later to become prime minister, from which he would resign) and Syrian President Assad in early August 2011, Turkey adopted a harsher stance towards the latter’s regime. TFP makers expressed their growing concerns over operations against civilians conducted by the Syrian regime forces, although they still rejected the idea of foreign intervention (Hürriyet 16 August 2011). Nevertheless, Turkey dropped its policy of political transition with the existing regime and began more actively supporting the opposition. From September 2011 onward, anti-Assad rhetoric became more apparent in the discourse of TFP makers. During his address to the UNGA, Turkish Prime Minister

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(and later President) Recep Tayyip Erdo˘gan (22 September 2011) referred to the Assad regime as losing its legitimacy and used the themes of R2P: Sovereignty does not allow any leader or any regime to repress its own people or kill innocent civilians. A regime pointing guns at its own people can have no sovereignty or legitimacy. [...]We have warned the Syrian leadership on several occasions upon witnessing the regrettable acts of the Syrian regime against its own people, which are of great concern for all of us.

After the Arab League decided to impose sanctions on Syria and suspend its membership (Küçükkele¸s, 2012: 7), the Turkish stance became particularly tougher against the Assad regime. Eventually, Prime Minister Erdo˘gan would publicly call on Assad to step down in November 2011 (New York Times 22 November 2011). Ankara also joined the Arab League by imposing its own sanctions (Hürriyet 30 November 2011). It is noteworthy that Turkish sanctions came shortly after the UN Human Rights Council adopted a report defining the actions of the Syrian government as crimes against humanity (Hürriyet 29 November 2011). In the light of these developments, it is obvious that from November 2011 onward, Turkey adopted the policy of regime change. In this regard, Turkey increased its support to the Syrian opposition, hosting meetings for designing a post-Assad Syria. Thus, Turkey became a shelter for the political and military opposition to the Assad regime (New York Times 27 October 2011). Moreover, it opened its borders to an influx of Syrian refugees. At the same time, Turkey intensified its efforts at the diplomatic level in order to internationalize the crisis and thus increase the pressure on the Syrian government (Tziarras, 2012: 133). Starting in early 2012, the reference to R2P became more evident in the discourse of TFP makers. As several statements issued by the Turkish Ministry of Foreign Affairs (MFA) illustrate, the official discourse of TFP explicitly defined the acts of the Assad regime as crimes against humanity, stating that the Syrian government had lost its legitimacy. More importantly, Turkey called upon the international community to fulfil its “joint conscientious responsibility to make sure that these crimes against humanity committed by those perpetrating mass atrocities […] do not go unpunished” in Syria (MFA 4 February 2012 emphasis added). It is clear that Turkish authorities defined the crisis in Syria as an R2P-type situation. More importantly, the shift in TFP discourse towards R2P coincided with its adoption of regime change as well as its introduction of stronger measures against the Syrian government. Having closed its embassy in Damascus, Turkey also asked the Syrian diplomatic staff to leave the country, stating that all measures being taken were due to “Turkey’s moral and conscientious responsibility towards the brotherly and neighbourly Syrian people” (MFA 16 May 2012). On several occasions, Turkey urged the UNSC to “adopt a resolution that will also incorporate the necessary measures to provide for the protection of the Syrian people” (MFA 10 April 2012). What is striking is that by emphasizing “the necessary measures”, Turkey was insisting on the international community to adopt harsher policies, including humanitarian action, especially after the failure of peace initiatives such as the Annan Plan. In this regard, Turkey gradually moved towards an interventionist view of R2P.

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As a part of its effort to coordinate international pressure against the Syrian regime, Ankara pursued multilateral diplomacy at the level of international and regional organizations (Sahin ¸ & Sarı, 2016:19). From November 2011, Turkey supported the regional initiatives undertaken by the Arab League. Besides, Ankara urged the UNSC to back these initiatives (MFA 24 January 2012). However, when the draft resolution was vetoed by Russia and China, Turkey reacted that the UNSC was unable to fulfil its primary responsibility to protect international peace and security: The stage that has been reached by the regime’s suppressing the desire of the Syrian people… [and] has acquired a threatening nature in which international peace and security are at risk. (MFA-b 4 February 2012 quoted in Karda¸s, 2012: 3)

Karda¸s (2012: 3) argues that this statement was indicative of Turkey’s position as its conceptual framework was similar to those justifying humanitarian interventions in the past. On these grounds, for TFP makers, since the Assad regime had lost its legitimacy the international community had the justification to use force. Frustrated by the successive inaction of the UNSC, Ankara intensified its efforts within other UN bodies. In cooperation with other countries, Turkey co-sponsored the adoption of several resolutions by UNGA and the UN Human Rights Council that condemned gross human rights violations and crimes against humanity by the Syrian regime (MFA 1 March 2012, 2 June 2012 and 4 August 2012). The “Group of Friends of the Syrian People” conference, on the other hand, was a significant example of Turkey’s willingness to form an international coalition of states against Assad. First and foremost, it showed that Ankara had turned to finding alternative sources of legitimacy at the regional level, given the inaction of the UNSC (Karda¸s, 2012: 4). During the first meeting in Tunisia, Foreign Minister Davuto˘glu clearly pointed this out by stating that the Friends of Syria would bridge the gap left by the failure of the UNSC (MFA 24 February 2012). Ankara also thought the Conference would be a strong indication of international decisiveness in responding “to the Syrian government atrocities which necessitate the enforcement of R2P measures” (Çakmak, 2014: 2). In this regard, in its second meeting in Istanbul, explicitly referring to R2P, Prime Minister Erdo˘gan defined the end of the violence in Syria as a “moral obligation” of the international community and stated that “[i]f the United Nations Security Council refrains from taking on the responsibility, the international community will have no chance but to accept Syrians’ right to self-defence” (Al-Jazeera 1 April 2012). The Syria crisis increasingly became a security problem for Turkey after several shooting incidents had taken place on its border in the spring of 2012. Particularly after Syrian Air Forces downed a Turkish military aircraft in June 2012, Turkey began to portray the Syrian regime as a threat to its own national security. Although Turkish authorities adopted a more securitized discourse towards the regime, Turkey refrained from taking unilateral military action. Instead, relying on the threat perception from Syria, Ankara tried to enlist NATO (Çakmak, 2016: 709–710). More importantly, after the shoot-down of the Turkish jet, an international intervention in Syria became the top priority of TFP (Ba˘gcı & Açıkalın, 2015: 20). After the use of chemical

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weapons in Damascus of August 2013, Turkey passionately advocated an international military intervention in Syria, similar to Kosovo (Hürriyet Daily News 30 August 2013). However, when the Obama administration refrained from doing so, Ankara’s hopes for international intervention were dissolved (Kirchner & Ba¸s, 2017: 169). The Turkish reaction to the US-Russian deal on the destruction of Syrian chemical weapons and the Geneva II talks demonstrated that Turkey’s policy towards the Assad regime was highly uncompromising. TFP makers declared that the USRussian agreement was not a final solution to the Syria crisis (Hürriyet Daily News 24 September 2013). Ankara sustained its calls for an international action to halt massacres committed by the regime through conventional weapons. The priority of Turkey was restated by the MFA as “to end the crimes against humanity” committed by the regime as well as to meet the demands of the Syrian people by empowering them to “establish a legitimate administration” (MFA 14 September 2013). In this regard, one could argue that diplomacy to bring chemical weapons under international control was not seen by TFP makers as a step towards a ceasefire that would protect civilians. Inflexibly aiming at regime change, Ankara also opposed any political settlement that would leave Assad in power. This can be seen during the Geneva II Conference. Although Foreign Minister Davuto˘glu indicated that Turkey supported a political settlement of the conflict in Syria, he insisted that “[a] leader and his close associates that have lost their legitimacy and capability to exercise authority in the country and those who have blood in their hands cannot stay” (MFA 22 January 2014). Nevertheless, especially after the US-Russian agreement on Syrian chemical weapons, Turkey’s calls for military action were doomed to fail in finding any support among western governments.

3.2 The Unintended Consequences of the Syrian Civil War for TFP The alarming refugee crisis, the radicalization of the armed opposition and, most notably, the sudden rise of ISIS in 2014 created new dynamics in the Syrian civil war. By taking control over large sections of Iraqi and Syrian territory and proclaiming its caliphate in June 2014, ISIS became the top priority for US policy towards Syria. Since 2014 the Syrian civil war has produced destabilizing spillover effects in neighbouring countries, including Turkey (Parlar Dal, 2017: 6). The emergence of nonstate actors along its borders with Syria created particularly serious challenges to Turkey’s regional policies as well as national security (Dinçer & Hecan, 2016). While Turkey acknowledged the expansion of ISIS as a threat, Ankara still considered the Assad regime the primary cause of terrorist threats emanating from Syria. This led Turkey to adopt a more securitized rhetoric defining the Syrian government as a terrorist regime, particularly from October 2014 onward (Erdo˘gan, 2017: 125).

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The emergence of ISIS as a threat had several implications for Turkish domestic politics as well as foreign policy. First, it became obvious that ISIS constituted a direct security threat when it attacked security forces inside Turkey in March 2014 (Parlar Dal, 2017: 6). Second, the expansion of ISIS throughout northern Syria and its fight against PYD/YPG created internal political tensions, particularly during the ISIS attack on Kobane in October 2014. Third, ISIS also complicated Turkey’s relations with the West. While the primary objective of the West became the defeat of ISIS, Turkey still prioritized the toppling of the Assad regime (Kar¸sıyaka & Kar¸sıyaka, 2017: 154). Furthermore, relations between Turkey and the West were also tense due to their differing views of PYD/YPG. Ankara recognizes the PYD/YPG as a terrorist organization and the Syrian branch of the PKK, whereas for many western countries it is a “legitimate” effective ground force against ISIS (Dinçer & Hecan, 2016: 11). Therefore, since Turkey perceives the territorial expansion and international credibility of PYD/YPG as a threat, the prevention of an establishment of a Kurdish entity in northern Syria has also become one of the main objectives of TFP. Although Turkey officially joined the anti-ISIS coalition created by the US in September 2014, Ankara initially took a reluctant attitude and did not actively participate in operations, mainly due to the divergence in policy priorities between the US and Turkey. Turkey still considered the Assad regime as the party most responsible for the crisis in Syria. According to TFP makers, ISIS and other radical organizations were the consequence of regime policies as well as the failure of the international community to respond to the civil war. In this regard, Ankara saw the US’ anti-ISIS strategy as not adequately inclusive and called for a more comprehensive strategy that would include the overthrow of the Assad regime (Duman, 2016: 6–7). Prime Minister Davuto˘glu clearly stated: [...] we believe that if Assad [...] stays in Damascus with these brutal policies, if ISIS goes, another radical organization may come in. [...] So our approach should be comprehensive, inclusive, strategic, and combined ... integrated strategy, [...] to eliminate all terrorist threats in the future and also to eliminate all brutal crimes against humanity committed by the regime. (CNN International 6 October 2014 emphasis added)

This statement clearly shows the policy priorities of Turkey and differences from its western allies. A comprehensive strategy was the reformulation of Turkey’s policy of regime change in addition to the prevention of PYD from advancing along its borders with Syria. In this regard, Turkey adopted a dual approach towards the Syrian civil war. On the one hand, TFP makers maintained the rhetoric defining the acts of the regime as “war crimes” or “crimes against humanity”. On the other, Turkey also had a broader interpretation of the terrorist threat coming out of Syria, which was not limited to ISIS but also included PYD/YPG. Therefore, Ankara proposed two policy instruments: to increase its support for the ‘moderate’ armed opposition, which involved various groups under the umbrella of the FSA, and to impose a no-fly zone in order to create safe zones (BBC, 2014). Both instruments were thought of as not only a barrier against the advance of PYD, but also an important measure against the regime. In addition, the creation of safe zones was presented as a solution to the refugee crisis (Reuters 5 November 2014). However, apart from the unsuccessful

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“train and equip program” conducted jointly by Turkey and the US, the call for a comprehensive strategy did not find enough support from the US. The increasing terrorist attacks of ISIS in Turkey eventually forced Ankara to abandon its reluctance to actively participate in the anti-ISIS coalition in the summer of 2015. Therefore, Turkey agreed to allow the coalition to use the Incirlik airbase (Reuters 9 August 2015). Its first airstrikes against ISIS were conducted unilaterally on 24 July 2015 (CNN International 25 July 2015). Turkey finally joined the air campaign of the anti-ISIS coalition in late August 2015. Nonetheless, Turkish participation did not mean a radical change in the discourse of TFP towards the Assad regime. Ankara still maintained its anti-Assad position. Prime Minister Davuto˘glu (30 July 2015) clarified this point as: […] Syria cannot be salvaged until the regime in Damascus abdicates power. It is the Assad regime that is responsible for the carnage and chaos that led to the emergence of Daesh [an acronym that TFP makers prefer to use instead of ISIS], and this fertile ground for radicalization cannot be eradicated until Bashar al-Assad and his circle of cronies leave. […] This is the only way more large-scale bloodshed can be prevented, and the international community, including the permanent members of the U.N. Security Council, must shoulder their responsibilities fully to bring this about. (emphasis added)

In 2015, the refugee crisis became an acute problem not only for neighbouring countries but also for Europe. As a country which has received the largest number of Syrian refugees, Turkey proposed safe zones as a solution to the flood of refugees fleeing their country. In this regard, growing awareness as well as public tension about the refugee problem in European countries enabled Ankara to increase its pressure on the international community to create safe areas in Syria (Davuto˘glu 30 September 2015). Russian involvement in Syria in Sptember 2015, however, was a game-changing factor for TFP. First, Russian military support given to the regime changed the balance of power on the ground in the latter’s favour, which was a clear setback to the Turkish policy of regime change. Second, it re-escalated the refugee flow towards the Turkish border. More importantly, after the shoot-down of the Russian jet by the Turkish pilots, Russia not only limited Turkey’s involvement in Syria, but also extended its support to the PYD/YPG (Dinçer & Hecan, 2016: 7–11). Turkey was highly critical of the Russian military build-up in Syria. On several occasions, TFP makers expressed their concerns over Russian-backed operations and warned that Russian airstrikes would only lead to an escalation of the war in Syria (Republic of Turkey Directorate General of Press and Information October 2015). Turkey was particularly vexed when Turkmen-populated areas near its border came under the attack of both Russian and Syrian forces. Prime Minister Davuto˘glu announced that military measures had been taken to prevent any threat to Turkey’s border security, but also stated: We will also take the required measures diplomatically for the protection of our brothers and sisters in the place where they are located and for the protection of their human rights in the face of any threat. (Hürriyet Daily News 22 November 2015 emphasis added)

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Thus did Ankara urge the UNSC “to fully assume their responsibilities without further delay, to take all necessary measures to prevent the targeting of civilians” (Anadolu Agency 24 November 2015). This clearly shows that TFP makers explicitly referred to the R2P framework for the protection of an ethnically affiliated group, since Turkmens in Syria and Iraq are a Turkic minority group with close ethnic, cultural and political ties to Turkey. As such, this can be seen as an example of what Reichwein and Hansel (2016: 7–8) call “protecting minorities under the R2P umbrella”. Even though they argue that the protection of minorities is used as a pretext for military aggression mostly by authoritarian states, in this case it is obvious that Ankara refrained from taking unilateral military action that might have been legitimized by the protection of its own ethnic minorities. Rather, Turkey diplomatically utilized R2P in order to mobilize international reaction, including a military response. It can be argued that the rhetoric of “the protection of Turkmen brothers and sisters” provided Ankara with an instrument to reinforce its position against Russia and reconsolidate its influence in Syria, which had been severely affected by Russian involvement. However, it should be noted that the red line of Ankara for military action was exclusively its national security. This point was proven when Turkey shot down the Russian jet, claiming that it had violated Turkish airspace. After the downing of the Russian warplane, the discourse of TFP became stronger towards the Russian military presence in Syria, accusing it in particular of conducting “ethnic cleansing” (Reuters 9 December 2015). Especially during the besiegement of Aleppo by the Russian-backed Syrian forces in February 2016, Ankara was alarmed by new waves of Syrian refugees, reiterating its calls for safe zones in Syria (Reuters 11 February 2016). Moreover, in several official statements, the MFA defined the acts of both the Syrian regime and the Russian Federation as attacks against civilians, accusing both actors of committing R2P-type crimes such as “war crimes” or “crimes against humanity”.3 A striking difference with earlier discourses was that at this stage Ankara had a broader interpretation of R2P by including the actions of Russia in addition to those of the Syrian regime. While Ankara reiterated that it did not have plans for a unilateral military operation in Syria, it is clear that, by deploying R2P rhetoric, Turkey’s aim was to provoke further international involvement. However, its calls for creating safe areas in northern Syria failed to gain sufficient attention among western governments. Frustrated by rocket missile attacks towards its border cities, in May 2016 TFP makers began to warn that Turkey would unilaterally send ground troops into Syria to defend itself against terrorist threats (Al-Jazeera 4 May 2016).

3.3 Turkey’s “Road to Damascus” After the resignation of Prime Minister Davuto˘glu in June 2016, TFP underwent several important changes. First, Ankara took steps to restore its relations with Russia, 3

For example, please see MFA 29 April 2016.

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which came as a result of changing contextual and structural factors in regional and international dynamics (Dalay, 2016). In this regard, the unintended consequences of the Syrian civil war—the alarmingly increasing numbers of refugees, Turkey’s conflicting policy objectives with key actors, the growing threat of ISIS, and most importantly, the emergence of a Kurdish entity under the control of PYD/YPG in northern Syria—led to a major recalibration of TFP in the summer of 2016 (SETA, 2016). Notably, internal security challenges, namely the resumption of the conflict with the PKK in July 2015 and the failed coup attempt in July 2016, seem to be the most significant factors behind this shift. Under these circumstances, Turkey promoted the rapprochement process with Russia in addition to revising its policy objectives towards Syria (Aktürk, 2017: 88–93). The launch of Operation Euphrates Shield by Turkey in August 2016, which came immediately after the terrorist attacks of ISIS in Gaziantep, was predominantly shaped by the national security considerations of TFP makers. According to the MFA statement, the Turkish military operation was carried out in accordance with Turkey’s right of self-defense in order to end all terrorist threats coming from Syria (MFA 30 August 2016). In this regard, the operation was mainly security-driven and aimed at ensuring border security against ISIS and containing the PKK-affiliated PYD/YPG in northern Syria (Dalay, 2017). The operation was secondarily justified on the humanitarian grounds of creating a safe zone for the return of Syrian refugees in Turkey (SETA, 2016: 168). As such, the Turkish military intervention in Syria is more the result of Turkey’s changing policy towards Syria, for which it has gained the consent of Russia since moving away from its policy of regime change (Aktürk, 2017: 93). Nonetheless, what is striking is that the first direct Turkish military intervention in Syria in six years of civil war did not target the regime. In the summer of 2016, new geopolitical dynamics forced Turkey to pursue a more security-oriented foreign policy towards Syria, while its strategic priorities shifted from toppling the Assad regime towards preventing the emergence of an autonomous Kurdish region under the PYD control in northern Syria. Despite the fact that Turkey maintained its rhetoric defining the actions of the Syrian government as atrocities as late as December 2016, the Moscow Declaration was the most significant manifestation of its departure from a six-year goal of regime change. Thus on 20 December 2016, Turkey, Russia, and Iran urged the peaceful settlement of the war by supporting the preservation of Syria’s territorial integrity and expanding the cessation of hostilities throughout the whole country (MFA 20 December 2016). More importantly, Turkey became one of the guarantors of the political solution between the Syrian government and the opposition during the Astana Peace Process.

4 Analysis: R2P Challenged or Confirmed? This section aims to examine the ways in which R2P has been challenged and/or confirmed by both the discourse and practice of TFP with regard to the Syrian civil war. As clearly seen in the previous section, R2P overwhelmingly dominated the

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TFP discourse for the better part of the war. From the very beginning, TFP makers advocated the protection of civilians (Çakmak, 2014: 1). At early stages of the crisis, when Turkey acted as a mediator between the regime and opposition, the goal and means of TFP confirmed the R2P framework, although the norm was not explicitly referred to. However, the more Turkey incorporated an anti-Assad discourse, the more R2P became evident in the rhetoric of TFP. As Turkey adopted the policy of regime change in November 2011, TFP makers gradually based their discourse vis-à-vis Syria on the framework of R2P. The TFP elite identified the crisis in Syria as an R2P-type situation that delegitimized the regime since it committed R2P-type crimes against civilians. Especially from early 2012, Turkey adopted a more interventionist and militarized interpretation of R2P and passionately advocated the activation of its third pillar. To this end, Turkey constantly exhausted every opportunity to mobilize international support for collective action in Syria. As the Friends of Syria Conference illustrates, Turkey even searched for alternative sources of legitimacy outside the UN and tried to form a coalition of states against Assad. On the one hand, we acknowledge that some initial policies of Turkey remained within the scope of R2P. Imposing economic sanctions on the regime in accordance with international law and supporting peace initiatives at the regional and international levels should be considered R2P-confirmed policies. On the other hand, Turkey’s ambitious goal of regime change and its support for the armed opposition, to this effect, constituted particularly major challenges to R2P since they themselves contributed to the escalation of the R2P-type situation in Syria. Moreover, its uncompromising attitude towards the Syrian regime during diplomatic initiatives such as the US-Russian chemical deal or the Geneva II talks were R2P-challenged. More importantly, it should be remembered that excessive Turkish support for the military opposition, including the alleged supply of weaponry, was the most counterproductive policy with regard to R2P on the grounds that, as Ignatieff (2013) stresses, R2P also entails ceasing to supply weapons to any side since that would only worsen the catastrophe at hand. In light of these assessments, particularly from early 2012 to 2014, the use of R2P in TFP was highly instrumental. Although R2P was not used as a justification for unilateral military action, it is clear that TFP makers found the interventionist view of R2P relevant to their policy of invoking international intervention to overthrow the Syrian regime, which is a challenge to the goal of R2P. By the autumn of 2013, Turkey’s hopes for international intervention were dissolved when it became clear that the key western actors would not intervene militarily against the Syrian regime even if it used chemical weapons. More importantly, with the rise of ISIS in 2014, Turkish policy objectives would sharply diverge from the West. Inflexibly maintaining its goal of regime change, Ankara continued to define the acts of the Syrian government as R2P-type crimes. However, since Turkey was frustrated by the inaction of the international community, R2P was gradually seen by TFP makers as a dysfunctional framework for mobilizing international intervention in Syria. Hence, while still substantially upholding the norm, Turkey became critical of the procedural aspect of R2P. Its use in TFP, therefore, became a normative source upon which Turkey based its broader criticism of the international community, in particular the veto system of UNSC. Ankara also criticized Russian support and

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its subsequent involvement in the Syrian war, alleging that it was jointly responsible for committing R2P-type crimes. At this stage, rather than R2P, the emergence of ISIS as a global threat provided Turkey with an opportunity to push for the US to overthrow the Assad regime by broadening the anti-ISIS campaign in Syria (Ba¸skan, 2016: 132). While increasingly preoccupied with the unintended consequences of the civil war, such as ISIS, the increasing power of the PYD/YPG, and increasing numbers of refugees, Turkey still pursued an R2P-challenged goal by prioritizing regime change and deploying R2P-challenged policies, most notably supporting the armed opposition. Turkey’s “road to Damascus” moment came in the summer of 2016 after a number of geopolitical dynamics and increasing security challenges had forced Ankara to revise its uncompromising position towards the Syrian regime. Simultaneously, the use of R2P in TFP has decreased and become less explicit. At this stage, the most important development was the military intervention of Turkey in Syria, which was the first instance of direct military action with ground troops since the beginning of the civil war.4 What is striking is that, when R2P was the dominant theme in TFP, Turkey strictly refrained from taking unilateral military action; only after Ankara closed the chapter on calling for the activation of R2P in Syria did Turkish military operations take place. Ankara did not employ the themes of R2P to justify its military operations for three main reasons: first, R2P proved itself a failed concept in the course of the Syrian civil war to an extent that the TFP elite came to consider the norm dysfunctional. Second, R2P was used as a tool in the discourse of TFP mostly while addressing the international community. However, a discourse on national security was far more convincing for domestic public opinion to support a military action. Third, and most importantly, the use of R2P was closely associated with Turkey’s anti-Assad policy. The Turkish military intervention was made possible with the consent of Russia on the condition that Turkey softened its anti-regime stance. As a result, seeking to contain the advance of PYD/YPG in the north, Ankara entered Syria in order to fight ISIS rather than the regime. The Moscow Declaration and the Astana process, therefore, were the manifestations of its departure from an unsuccessful policy of regime change. In this regard, after December 2016, the goal and means of TFP can be defined as more R2P-confirmed insofar as they were contributing to the protection of civilians. In collaboration with Russia and Iran, Turkey not only co-brokered a countrywide ceasefire, but also became one of the guarantors of the peace process between the Syrian government and the opposition. One of the most important developments in recent R2P literature has been the increasing recognition of refugee protection as one of the effective ways of fulfilling R2P. Thus, linking R2P and refugee protection conceptually and practically, various scholars acknowledge granting asylum for those who have fled atrocities as an essential component of the implementation of R2P (Coen, 2017; Ralph & Souter, 2015; Welsh, 2014). The Turkish experience is particularly noteworthy in this regard because Turkey has been fulfilling its international R2P as the country hosting the 4

Only exception was the Turkish cross-border operation to secure the Ottoman tomb from ISIS in February 2015. Please CS Monitor 22 February 2017.

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largest number of Syrian refugees. Ankara has always approached the refugee crisis as a humanitarian problem and never incorporated a security-oriented discourse on the issue (Çakmak, 2016: 703). The UNHCR (15 March 2017) data show that, in March 2017, while the total number of the registered Syrian refugees reached nearly five million, Turkey accepted more than 2.9 million refugees as a result of its “open-door policy” for Syrian people. Moreover, according to Turkey’s official statistics, the amount of humanitarian aid allocated by Turkey for Syrian refugees was around USD12 billion between 2011 and 2016, while the contribution of the international community remained at USD512 million (AFAD 30 November 2016). A striking point is that, given the increasing pressure of refugee flows from Syria, Ankara began to call for the inclusion of refugees into the R2P framework. Moreover, as the refugee crisis became an increasingly acute problem for Turkey, Ankara on numerous occasions tried to push the international community to create safe zones in Syria imposed by a no-fly zone policy for refugees to return to. Even though its “open-door policy” confirms the R2P framework, Turkey grants only temporary protection status to Syrian citizens, which falls short of international legal standards for refugees (Sim¸ ¸ sek, 2015: 59). The topic of the Syrian refugee problem also seems to be a foreign policy instrument in the discourse of TFP. This can be clearly seen in the statements of Turkish leaders threatening EU countries to open the borders with fresh waves of refugees (Parlar Dal 17 February 2016).

5 Conclusion This study primarily shows that Turkey’s approach to R2P has been closely intertwined with TFP in the course of the Syrian crisis. Insofar as Turkey adopted an ambitious policy of regime change, its initially cautious attitude towards the norm disappeared, and Ankara emerged as a staunch supporter of R2P. Furthermore, as Assad continued to keep his grip on power, Turkey gradually incorporated an interventionist and militarized view of R2P and called for the activation of its third pillar on various occasions. Yet as Ankara grew frustrated by the inaction of the international community and increasingly preoccupied with the spillover effects of the civil war, including the refugee crisis, R2P came to be one of the manifestations of Turkey’s discontent with the existing structure of the UNSC. Despite the fact that Turkey’s criticism of the brutality of the Assad regime is justifiable on grounds of the R2P framework, the use of R2P in TFP is still a telling example of its misconduct by states for the legitimization of interventionist policies. Inflexibly aiming at regime change as a foreign policy goal goes well beyond the rubric of R2P, while excessively supporting armed groups is not only inconsistent with the substantive core of R2P but also counterproductive. As a result, the use of R2P in the discourse and practice of TFP during the civil war was pragmatic and instrumental when it appeared as a relevant normative framework for the TFP elite to achieve their own aspirations for regional leadership by transforming the Syrian regime into a friendly, ideologically closer one. Yet is striking that R2P was

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not used in TFP for the legitimization of a unilateral military action, as Operation Euphrates Shield shows. Instead, it was instrumentalized in the discourse of TFP to justify its over-involvement in the civil war as well as invoke an international intervention to bring about regime change that TFP makers considered essential for Turkey’s regional dominance. However, this ambitious goal went well beyond the Turkish state’s material capability. For that reason, Turkey tried to mobilize western military strength for the sake of its own regional aspirations by utilizing a normative concept that is ironically promoted and upheld by the West itself. In this regard, the use of R2P in TFP in the course of the Syrian civil war presents an illustrative case that shows another under-institutionalized or indeterminate aspect of R2P that also leaves the norm open to “abuse”. Regarding the impact of its policies, TFP has so far obtained unintended outcomes in the Syrian civil war due to a series of miscalculations. On the one hand, it is obvious that TFP has failed to accomplish its goal as Turkey neither achieved regime change nor invoked an international action in Syria. On other hand, even though Ankara is not the sole responsible for the failure to end the humanitarian crisis, by defining regime change as the only ideal form of R2P in the Syrian conflict, its policies were mostly ineffective in protecting civilians and even counterproductive in terms of the R2P. This also caused reputational damage to Turkey. The Syrian crisis not only weakened its rising power status, but also undermined its image of a role-model country as well as its claims for “moral-based” foreign policy. Hence, as Keyman (2016) argues, Turkey was expected to act as a “buffer state” to contain the spillover effects of the civil war. Last but not least, in parallel with the growing authoritarianism in Turkish domestic politics in recent years—an interrelated development with its overinvolvement in the Syrian civil war—R2P in TFP has turned out to be an instrument, which by now has lost its core philosophy. In the end, Turkey’s approach to R2P demonstrates that active support for a norm does not necessarily mark a “full internalization” of the norm by supporting states.

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Kiri¸sçi, K. (2009). Transformation of Turkish Foreign policy the rise of the trading state. New Perspective on Turkey, 40, 29–57. Köstem, S. (2020). Russian-Turkish cooperation in Syria: Geopolitical alignment with limits. Cambridge Review of International Affairs. Küçükkele¸s, M. (2012, April). Arab League’s Syrian policy. SETA Policy Brief , No. 56. MFA. (2012, January 24). No: 26, 24 January 2012, Press release regarding the decision taken by the Arab League about Syria on 22 January. Retrieved on 20 March 2017 from http://www.mfa.gov.tr/no_-26_-24-january-2012_-press-release-regarding-the-dec ision-taken-by-the-arab-league-about-syria-on-22-january.en.mfa MFA. (2012, February 4). No: 37, 4 February 2012, Press release regarding the latest attacks perpetrated by the Syrian Administration against the People of Homs. Retrieved on 8 March 2017 from http://www.mfa.gov.tr/no_37_-4-february-2012_-press-release-regarding-the-latestattacks-perpetrated-by-the-syrian-administration-against-the-people-of-homs.en.mfa MFA. (2012, February 24). Speech delivered by Mr. Ahmet Davuto˘glu, Minister of Foreign Affairs of the Republic of Turkey at Group of Friends of Syrian People Meeting, 24 February 2012, Tunis. Retrieved on 21 March 2017 from http://www.mfa.gov.tr/speech-delivered-by-mr_ahmet-davuto˘glu_-minister-of-foreign-affairs-of-the-republic-of-turkey-at-group-of-friends-ofsyrian-people-meeting_-24-february-2012_-tunis.en.mfa MFA. (2012, March 1). No: 69, 1 March 2012, Press release regarding the UN Human Rights Council resolution on Syria. Retrieved on 20 March 2017 from http://www.mfa.gov.tr/no_-69_1march-2012_-press-release-regarding-the-un-human-rights-council-resolution-on-syria.en.mfa MFA. (2012, April 10). No: 102, 10 April 2012, Press release regarding Syrian Regime’s failure to fulfill its pledge in accordance with Annan’s Plan. Retrieved on 8 March 2017 from http://www.mfa.gov.tr/no_-102_-10-april-2012_-press-release-regarding-syrian-regime_sfailure-to-fulfill-its-pledge-in-accordance-with-annan_s-plan.en.mfa MFA. (2012, May 16). No: 147, 26 May 2012, Press release regarding the latest attacks perpetrated by the Syrian administration against civilians. Retrieved on 8 March 2017 from http://www.mfa.gov.tr/no_147_-26-may-2012_-press-release-regarding-the-latest-attacksperpetrated-by-the-syrian-administration-against-civilians.en.mfa MFA. (2012, June 2). No: 152, 2 June 2012, Press release regarding the UN Human Rights Council resolution on Syria. Retrieved on 20 March 2017 from http://www.mfa.gov.tr/no_-152_-2-june2012_-press-release-regarding-the-un-human-rights-council-resolution-on-syria.en.mfa MFA. (2012, August 4). No: 195, 4 August 2012, Press release regarding the resolution on Syria adopted by the UN General Assembly. Retrieved on 20 March 2017 from http://www.mfa.gov.tr/no_-195_-4-august-2012_-press-release-regarding-the-resolu tion-on-syria-adopted-by-the-un-general-assembly.en.mfa MFA. (2013, September 14). No. 245 Press release regarding the agreement reached between the United States and the Russian Federation concerning the chemical weapons possessed by the Syrian Regime. Retrieved on 25 December 2014 from http://www.mfa.gov.tr/no_-245_-14september-2013_-press-release-regarding-the-agreement-reached-between-the-united-statesand-the-russian-federation-concerning-the-chemical-weapons-possesed-by-the-syrian-regime. en.mfa MFA. (2014, January 22). Remarks by Mr. Ahmet Davuto˘glu, Minister of Foreign Affairs of Turkey at the Geneva II Conference, Montreux, 22 January 2014. Retrieved on 25 December 2014 from http://www.mfa.gov.tr/remarks-by-mr_-ahmet-davutoglu_-minister-of-for eign-affairs-of-turkey-at-the-geneva-ii-conference_-montreux_-22-january-2014.en.mfa MFA. (2016, April 29). No: 103, 29 April 2016, Press release regarding the Airstrikes in Aleppo. Retrieved on 6 March 2017 from http://www.mfa.gov.tr/no_-103_-29-april-2016_-press-releaseregarding-the-airstrikes-in-aleppo.en.mfa MFA. (2016, August 30). QA-31, 30 August 2016, Statement of the spokesman of the Ministry of Foreign Affairs, Tanju Bilgiç, responding to a question in relation to public remarks by US Secretary of Defense, Defense Department Spokesperson,

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White House Press Secretary and Special Presidential Envoy for the clobal coalition to Counter DAESH, regarding operation euphrates shield. Retrieved on 28 March 2017 from http://www.mfa.gov.tr/qa_31_-30-august-2016_-statement-of-the-spokesman-of-theministry-of-foreign-affairs_-tanju-bilgiç_-responding-to-a-question.en.mfa MFA. (2016, December 20). Joint Statement by the Foreign Ministers of the Islamic Republic of Iran, the Russian Federation and the Republic of Turkey on agreed steps to revitalize the political process to end the Syrian conflict, 20 December 2016, Moscow. Retrieved on 28 March 2017 from http://www.mfa.gov.tr/joint-statement-by-the-foreign-ministers-of-the-islamic-rep ublic-of-iran_-the-russian-federation-and-the-republic-of-turkey-on-agreed-steps-to-revitalizethe-political-process-to-end-the-syrian-conflict_-20-december-2016_-moscow.en.mfa MFA-b. (2012, February 4). No: 38, 4 February 2012, Press release regarding the UN Security Council being unable to reach a Decision on Syria. http://www.mfa.gov.tr/no_-38_-4-february2012_-press-release-regarding-the-un-security-council-being-unable-to-reach-a-decision-onsyria.en.mfa New York Times. (2011, October 27). In slap at Syria, Turkey shelters anti-Assad fighters. Retrieved on 20 March 2017 from http://www.nytimes.com/2011/10/28/world/europe/turkey-is-shelteringantigovernment-syrian-militia.html New York Times. (2011, November 22). Turkish Premier urges Assad to quit in Syria. Retrieved on 20 March 2017 from http://www.nytimes.com/2011/11/23/world/middleeast/turkish-leadersays-syrian-president-should-quit.html Nuruzzaman, M. (2013). The “responsibility to protect” Doctrine: Revived in Libya, Buried in Syria. Insight Turkey, 15(2), 57–66. O˘guzlu, H. T. (2016). Turkish foreign policy at the Nexus of changing international and regional dynamics. Turkish Studies, 17(1), 58–67. Öni¸s, Z. (2012). Turkey and the Arab Spring: Between ethics and self-interest. Insight Turkey, 14(3), 45–63. Öni¸s, Z. (2014). Turkey and the Arab revolutions: Boundaries of regional power influence in a Turbulent Middle East. Mediterranean Politics, 19(2), 203–219. Parlar Dal, E. (2016, February 17). Shunned by the west and menaced by Syria Turkish Foreign Policy turned south. The Wire, Retrieved on 29 March 2017 from https://thewire.in/109467/tur kish-foreign-policy-goes-south/ Parlar Dal, E. (2017). Impact of the transnationalization of the Syrian civil war on Turkey: Conflict spillover cases of ISI and PYD-YPG/PKK. In Cambridge review of international affairs (pp. 1– 25). Permanent Mission of Turkey to the United Nations. (2009, 24 July). Responsibility to Protect. Address by Fazlı Çorman, Charde D’affaires a.i. of Turkey to the United Nations, UN General Assembly, 63rd Session, New York. Ralph, J. (2017, Winter). The responsibility to protect and the rise of China: Lessons from Australia’s role as a “pragmatic” norm entrepreneur’, International Relations of the Asia-Pacific, 17(1), 35–65. Ralph, J. (2018, Winter). What should be done? Pragmatic constructivist ethics and the responsibility to protect. International Organization, 72, 173–203. Ralph, J., & Souter, J. (2015). Is R2P a fully-fledged international norm? Politics and Governance, 3(4), 68–71. Reichwein, A., & Hansel, M. (2016, April 6–9). Rethinking responsibility: Towards a new authoritarian interventionism? Paper presented at the European Workshop in International Studies (EWIS), Rethinking Responsibility: Military Humanitarianism beyond Western States, University of Tübingen. Republic of Turkey Directorate General of Press and Information. (2015, October). Monthly bulletin, October 2015. Reuters. (2014, November 5). Turkey warns of Syrian threat to Aleppo, fears new refugee influx. Retrieved on 14 March 2017 from http://uk.reuters.com/article/uk-mideast-crisis-turkey-idU KKBN0IP10F20141105

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Reuters. (2015, August 9). U.S. sends 6 jets, 300 personnel to Turkey base in Islamic State fight. Retrieved on 14 March 2017 from http://uk.reuters.com/article/uk-mideast-crisis-incirlik-idU KKCN0QE0S920150809 Reuters. (2015, December 9). Turkish PM accuses Russia of ‘ethnic cleansing’ in Syria. Retrieved on 17 March 2017 from http://www.reuters.com/article/us-mideast-crisis-turkey-russia-idUSKB N0TS1V120151209#JTqT72yR3Ev7RmxB.97 Reuters. (2016, February 11). Turkey’s Erdogan warns patience will run out on Syria. Retrieved on 17 March 2017 from http://www.reuters.com/article/us-mideast-crisis-syria-erdogan-idUSKC N0VK0UC Robins, P. (2014). Turkey and R2P: Ambivalence in promoting human rights? In Monica Serrano, & Thomas G. Weiss (Eds.), The international politics of human rights: Rallying to the R2P cause (pp. 193–207). Routledge. Sahin, ¸ M., & Sarı, B. (2016, July). Turkey in the Syrian crisis: The limits of a middle power Foreign Policy. Ortado˘gu Etüdleri, 8(1), 8–25. Schenker, D. (2011, 9 June). Turkey’s shift on Syria gives West room to tougher on Assad. Retrieved on 31 March 2017 from http://www.csmonitor.com/Commentary/Opinion/2011/0609/Turkey-sshift-on-Syria-gives-West-room-to-get-tougher-on-Assad SETA. (2016). 2016’da Türkiye. SETA Sey¸ ¸ sane, V., & Çelik, Ç. (2015). R2P and Turkish Foreign policy: Libya and Syria in irrespective. Global Responsibility to Protect, 7(3–4), 376–397. Sim¸ ¸ sek, D. (2015). Suriyeli Sı˘gınmacılar ve “Misafir” Olma Hali. Birikim, 311, 55–62. Ta¸spınar, Ö. (2012, Summer). Turkey’s Strategic vision and Syria. The Washington Quarterly, 35(3), 127–140. Tocci, N. (2007). Profiling normative foreign policy: The European Union and its global partners. CEPS Working Document No. 279. Center for European Policy Studies. Turkey. (2013, September 11). Statement delivered on behalf of the Permanent Mission of Turkey to the United Nations, General Assembly Informal Interactive Dialogue on the “Responsibility to Protect: State Responsibility and Prevention. Retrieved on 24 March 2017 from www.global r2p.org/media/files/turkey-transcription.pdf. Turkey. (2015, September 8). Statement by Turkey, Informal interactive dialogue of the general assembly on the Responsibility to Protect. Retrieved on 24 March 2017 from www.globalr2p. org/media/files/turkey-1.pdf. Turkey. (2016, September 6). Statement delivered by Turkey—Informal Interactive Dialogue on R2P, Retrieved on 24 March 2017 from http://www.globalr2p.org/media/files/turkey-2.pdf. Tziarras, Z. (2012). Turkey’s Syria problem: A talking timeline of events. Turkish Policy Quarterly, 11(3), 129–138. UNCHR. (2017, March 15). Syrian regional refugee response. Retrieved on 29 March 2017 from http://data.unhcr.org/syrianrefugees/regional.php#_ga=1.241754305.2107531906.1489847035 UNGA. (2005, September 16). 2005 World summit outcome. UNGA Res. 60/1. UNGA. (2009, 24 July). 99th plenary meeting official records. A/63/PV.99. Welsh, J. M. (2013). Norm contestation and the responsibility to protect. Global Responsibility to Protect, 5, 365–396. Welsh, J. M. (2014). Fortress Europe and the responsibility to protect: Framing the issue. In EUI Forum on Migration (Ed.), The ‘Lampedusa Dilemma’, Retrieved on 30 June 2021 from https:// www.eui.eu/Documents/RSCAS/PapersLampedusa/FORUM-Welshfinal.pdf Ye¸silyurt, N. (2013). Orta Do˘gu’yla ˙Ili¸skiler’. In B. Oran (ed.), Türk Dı¸s Politikası, Kurtulu¸s Sava¸sı’ndan Bugüne Olaylar, Belgeler, Yorumlar, Vol 3, (2001–2012) (pp. 401–462). ˙Ileti¸sim.

Volkan Sey¸ ¸ sane (Ph.D.) is Assistant Professor at the Department of International Relations, Anadolu University in Turkey. He studied international relations at Ankara University, Faculty of Political Sciences where he received his bachelor’s degree in 2007. He is also a graduate of the London School of Economics and Political Science, Department of International History (MA in

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History of International Relations, 2011). Sey¸ ¸ sane obtained his Ph.D. degree in Political Science and International Relations from Istanbul University in 2018. His Ph.D. research focuses on peacebuilding, transitional justice, and truth commissions. He is the co-editor of several books and (co-) author of articles and book chapters, including “R2P and Turkish Foreign Policy: Libya and Syria in Perspective”, appeared on Global Responsibility to Protect (7/3-4, 2015). Çi˘gdem Çelik (Ph.D.) is a Research Assistant at the Department of Political Science and International Relations, Turkish German University. She studied political science and international relations at Marmara University where she received her bachelor’s degree in 2008. She is also a graduate of Istanbul Bilgi University and European University of Viadrina, (MA in European Studies, 2012). Çelik received her PhD degree in Political Science and International Relations from Istanbul University. Her research interest focuses on the consolidation of hybrid regimes and autocratic stability. She is the co-author of “R2P and Turkish Foreign Policy: Libya and Syria in Perspective”, appeared on Global Responsibility to Protect (7/3-4, 2015).

R2P—Promises and Pitfalls

The Waning of Post-Cold War Western Preponderance in International Norm Politics: Its Impact on the International Protection of People from Domestic Violence Lothar Brock Abstract The Responsibility to Protect resulted from the contestation of humanitarian intervention as a right claimed by liberal states. This contestation combined resistance with an effort to come to grips with the issue of how to deal with mass atrocities without undermining international pluralism based on self-determination and non-intervention. Under its generally accepted reading by the then Secretary General of the UN, Ban Ki-moon, R2P offered the possibility to uphold the idea of international protection even under the global power shift which is presently gaining momentum. The future of protection politics will depend not only on how this power shift will unfold in the coming years but also on the domestic change in liberal democracies as it interacts with global change.

1 Introduction The end of the Cold war helped to create a new political space for addressing humanitarian concerns in international politics. This space was filled i.a. by fostering a new human rights-based concept of sovereignty which was translated into the Responsibility to Protect (R2P). Together with the inauguration of the International Court of Justice (ICC), the invention of R2P has been hailed by its proponents as ‘the most dramatic normative development of our time’ (Weller, 2002: 693) and ‘the culmination of international law-making of the Twentieth Century’ (Scott & Andrade, 2019: 198). To the extent that these normative achievements have profited from the shift of power towards the liberal democracies which followed the breakdown of Real Socialism, a renewed power shift, this time to the disadvantage of the liberal democracies (Acharya, 2014; Mearsheimer, 2019), could be expected to darken the prospects for turning cosmopolitan ambitions into effective steps towards a world

L. Brock (B) Goethe University Frankfurt, Frankfurt, Germany e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2023 A. Reichwein and M. Hansel (eds.), Rethinking the Responsibility to Protect, Contributions to International Relations, https://doi.org/10.1007/978-3-031-27412-1_9

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order for states and people.1 The relative silence that has descended on R2P in comparison to the flood of literature and public debates which it provoked in the late 1990s and the 2000s (cf. Tinnes, 2019) as well as the petering out of attempts to improve R2P operationally in the wake of the Western intervention in the Libyan civil war in 2011, might both be seen as part of a global normative backlash (Crouch, 2018; Cupac & Ebetürk, 2021 critical: Deitelhoff, 2020) or a general ‘downsizing’ of norms in North–South relations (Moe & Geis, 2020) following the decline of Western normative predominance and resulting in the deterioration of protection as an item on the agenda of world politics.2 However, though I proceed on the assumption that there is a historical nexus between liberal preponderance3 as it unfolded after the Cold War and ‘human protection’ as spelled out in the R2P framework, I agree with Hansel and Reichwein (in this volume) that to construct a causal link between the rise and decline of liberal world order politics on the one hand, efforts at human protection on the other, would be too mechanistic and simple—not the least because it would neglect the role of the Global South in dealing with humanitarian issues. While it is true that after the Cold War humanitarian issues were pushed by the liberal democracies, this does not mean that the protection of people from mass atrocities was exclusively a concern that ‘the West’ pursued against ‘the Rest’.4 Participation in redefining sovereignty as responsibility which was at the center of the theoretical issues involved in humanitarian politics was not limited to Western experts. The UN General Secretariat under both Boutros Boutros-Ghali and Kofi Anan played an important role in facilitating the debate (Deng et al., 1996; Annan, 2000b). The African Union (AU) included in its Charter a provision giving the Organization the right to intervene in a Member State in the case of war crimes, genocide, 1

Hansel and Reichwein in their contribution to this volume challenge the assumption of ‘a nexus between Western liberalism, democractic norm entrepreneurs, and humanitarian justifications in cases of intervention’. The present paper confirms this nexus as a historical fact. That does not mean, however, that it regards international humanitarian protection as an exclusive concern of Western liberalism. It rather looks into the specificities of this nexus but also into its limits and under this focus addresses possible implications of the decline of liberal preponderance for the future of human protection in acute conflict. 2 This paper deals with the protection of people from mass-atrocities as spelled out in the R2P framework. However, it also refers to the ‘human protection’ and the ‘porotection of people in conflict’. Officially, the latter term refers to the protection of people as part of peace missions which operate with the consent of the governments in charge whereas R2P ‘implies above all else a responsibility to react to situations of compelling need for human protection’ if necessary, without the consent of the government and by way of military intervention (ICISS, 2001a: 29). For the purpose of this paper I subsume both types of engagement under the term of the protection of people in conflict or human protection unless the distinction between peacekeeping and uninvited intervention is at issue. 3 I am avoiding the term‚ ‘hegemony’ because of the conceptual baggage attached to it. My understanding of preponderance involves hierarchy, authority and dominance. Thus it is rather eclectic referring to Realist, Liberal and Critical International Relations (cf. Daase & Deitelhoff, 2019: 15–16; Börzel & Zürn, 2021). On the heuristic productivity of what could be called a ‘mixed foci’ approach cf. Soerensen (2008, 2016). 4 Cf. Jetschke and Abb (2019), Brenner et al. (2015), and Arcudi (2019).

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and crimes against humanity (Art. 4(h)). This provision pre-dates the adoption of R2P in 2005 and goes beyond the wording of the UN summit outcome document (cf. Caplan, 2011: 131). Even before the end of the Cold War, the West African Economic Community (ECOWAS), in 1989, interfered with the civil war in Liberia in order to stop the conflict there and save people trapped in the war zone thus setting a precedent for the respective practice within the framework of the UN and today’s African Union (Wilén, 2021). Further back, the intervention of India in the war of separation between West and East Pakistan in 1971, the war of Tanzania under president Nyerere against Uganda’s dictator Idi Amin in 1978/79, and the intervention of Vietnam in Cambodia to end the rule of the Khmer Rouge in 1979, have even been referred to as qualifying humanitarian intervention as a customary right (Téson, 1988, refuting this claim for the case of India’s intervention in Bangladesh in 1970 cf Franck & Rodley, 1973; ICISS, 2001b: 67; Jaganathan & Kurzt, 2014). Beyond external military interference, the protection of people (in conflict) is part of the consensus-based UN peace missions which expanded tremendously after the Cold War and for which states from the Global South provide most of the personnel (Rotmann et al., 2014: 357). The increase in numbers and the widening of the tasks of peace missions reflected not necessarily a growing need for interference in the context of the so-called new wars (Chinkin & Kaldor, 2017; Kaldor, 1999) but rather a growing determination of both the UN Secretary-General and the UN Security Council to address domestic conflict. The active participation of the Global South was and is crucial for the respective institutional development within the UN and at the regional levels. All of this can be understood as continued efforts of the South to make its voice heard in the post-colonial ‘battle for international law’ (Rajagopal, 2000; von Bernstorff & Dann, 2019; Bin Talal & Schwarz, 2013). In other words, the Global South was not a reluctant object of liberal politics of protection. It was quite active in shaping this frame of reference for the international protection of people in conflict (cf. note 2) which implied not only the justification of the use of force and other means of protection but also and necessarily their critique (Simon & Brock, 2021: 3). As Moe and Geis state (2020: 292) ‘contestations and conflict over the human rights agenda were integral elements of wider processes of norm proliferation and localization in the context of the emergence of the African Peace and Security Architecture (APSA) during the post-Cold War period’. The way the ICC came about is the best example of the interplay between norm entrepreneurs from quite different walks of life in and between the Global South and the Global North (Acharya, 2016; Deitelhoff, 2007; Gissel, 2018). The interaction between the liberal democracies and the Global South was driven not only by mutual supportiveness but also by paternalism and disagreement (Moe & Geis, 2020: 388; cf. Börzel & Zürn, 2021). The resulting tension reflected the fact that far from signaling ‘the end of history’, the breakdown of Real Socialism was seized by the liberal West to assert itself as the incarnation of what (in its view) ‘civilization’ (cf Eberl, 2021) stood for. While there was, indeed, the universal horror caused by ‘systematic violations of human rights that affect every precept of our common humanity’ (Annan in ICISS, 2001a: VII; cf. Hasenclever, 2001), the way this horror was defined and acted upon reflected the ambition of the liberal West to do the world

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over in its own image (Chandler, 2001; Chimni, 2021). This was a complex program involving not only the enforcement of the liberal understanding of human rights and human freedom but also free trade, the globalization of the market economy, the extension of (conditioned) multilateralism in connection with liberal concepts of international law and the participation in the ‘war on terror’ as defined by the United States after September 11, 2001 (cf. Daase & Deitelhoff, 2021b: 181–186). It surely was in the interest of the people of the Global South just as much as of the liberal democracies to protect people from mass atrocities (Hasenclever, 2001). But it was not in the interest of the non-Western states to knuckle down to the rules and procedures for this as defined by the liberal democracies. Thus the participation of non-Western states in shaping humanitarian concerns functioned at least in part as resistance against liberal world order politics (cf. Arcudi, 2019; Witt & Schnabel, 2020). What does this imply for the future of norm politics in the arena of protecting people from mass atrocities and conflict in general? Christopher Daase and Nicole Deitelhoff (2021b) suggest conceptualizing international order as ‘international rule’ (‘internationale Herrschaft’) under which (in analogy to the stabilization of norms through contestation (Deitelhoff, 2019; Deitelhoff & Zimmermann, 2019; Wiener, 2014)) resistance does not necessarily cause disruption but has the basic function to support (good) governance. It has this function to the degree that it comes to bear as opposition within the system thus counteracting opposition against the system. Under this perspective, the resistance of the Global South against humanitarian intervention (which found a strong echo in the liberal democracies themselves) helped to create an approach to the protection of people in conflict which stabilized international communication on human protection in the form of R2P. This turned out to be a stabilization of protection politics at a low level of consensus with regard to the normative status of R2P and its applicability in acute conflict. Nevertheless, it kept open the possibility of a further evolution of R2P (for instance in accordance with the reading of R2P by UN Secretary-General Ban Ki-Moon [UN GA, 2009]). The issue then is whether this window of opportunity can be kept open beyond ‘Libya’ and ‘Syria’ and ‘Ukraine’ or whether the resistance against the liberal world order politics is likely to result in a normative backlash that ‘does not simply reject certain norms but rather the very principles and norm complexes it is drawn from’ (Deitelhoff, 2020: 718). In the remainder, I will first address the role of liberal preponderance in the international politics of protection after the Cold War. I will then turn to the basic predicaments of any endeavor to protect people from domestic violence through outside interference. This will result in the discussion of the prospects of international protection in the context of a changing global power constellation.

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2 Western Preponderance in the Post-Cold War Politics of Human Protection 2.1 Humanitarianism as Imperial Temptation When the Cold War ended, there was reason to expect that this would have a positive effect on conflict in the Global South. The Soviets withdrew from Afghanistan, and the (‘first’) Golf War between Iran and Iraq ended. The peace process in Central America was enhanced. South Africa saw the end of Apartheid and Samuel Huntington diagnosed a ‘third wave of democratization’ which promised to contribute to a general pacification of social relations around the world. Peacekeeping capacities of the UN were materially expanded and conceptionally advanced to include ‘robust’ ways of engagement with domestic conflict while the Security Council began to cooperate in cases of more severe domestic conflict under Chapter VII of the UN Charter to protect minorities, provide secure access for humanitarian organizations, to shield ongoing democratization from spoilers, and to restore public order (Iraq 1991, Somalia 1992, Haiti 1994, Bosnia 1995). Taking into account that Chapter VII of the UN Charter can only be invoked to counter disturbances of international peace, the UNSC argued that domestic conflict in these cases met this criterion.5 So there was cautious confidence that the persistent controversy over international interference in domestic conflict would be solved by enhancing the capacity of the UN to act through the General Secretariat as well as through the Security Council, while the need to act would be lessened through democratization in connection with a complex agenda for global cooperation on human rights, non-discrimination, social equity, the protection of the environment and the reorganization of economic relations (putting the developing countries ‘in the driver seat’).6 However, this change of context remained fragile. The ‘third wave’ of democratization soon lost momentum, capacity-building on the part of the UN did not live up to its promises,7 and the willingness of the Permanent Members of the Security Council to cooperate (in hard cases) faltered. In 1998, the Security Council stated that the tension in Kosovo constituted a threat to international peace but it did not agree on measures under Chapter VII of the UN Charter beyond the proclamation of an arms embargo. Arguing that there was no longer a chance to achieve a consensus on intervention in the UNSC, NATO decided to intervene unilaterally. On the background of what had happened in Srebrenica and Ruanda, the intervention was ranked by academic observers as ‘illegal but legitimate’ (Simma, 2000). That was convenient but also problematic since it tended to back up the proclivity among the most active liberal democracies in this issue area to regard their own military engagement as a key 5

For a critique cf. Koskenniemi (1995). Cf. also the Secretary General’s Agendas for Peace, for Democracy and for Development (1992– 1995). 7 As demonstrated by the inability of the Security Council to decide on early action the case of the upcoming genocide in Rwanda in 1994 and to prevent the killings in Srebrenica in 1995. 6

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to good international citizenship (Wheeler & Dunne, 1998). As Tony Blair famously put it in 1999, during the Kosovo war: ‘Our armed forces have been busier than ever – delivering humanitarian aid, deterring attack on defenseless people, backing up UN resolutions and occasionally engaging in major wars […] as we are currently doing in the Balkans’.8 In December 1998, the Kosovo War was preceded by a four-day bombardment of military targets in Iraq by the United States and Great Britain (Operation Desert Fox). This was justified by the argument that Iraq was in material breach of UNSC resolutions of 1991 taken as a follow-up to the (second) Gulf war in order to protect the Kurdish and the Shiite minorities and to keep the military capabilities of Iraq under control. The US Government justified its unilateral action with these resolutions. In contrast, the majority of the UNSC9 maintained that the Council remained seized on the issue so that it was up to the Council to decide on further action, not on individual members. This meant that the bombardment of Iraq was unauthorized. At that time Marc Weller observed that instead of building the New World Order which US President George H. W. Bush had promised to do in 1991, Operation Desert Fox and the continued air campaign of 1999 fundamentally challenge(d) the (…) existing structures for international order, rather than strengthening them’ (Weller, 1999/2000: 96). So the earlier (post-Cold War) vision of rule-based Global Governance proclaimed by the Paris Charter of 1990 (which was too beautiful to be true anyhow), in the second half of the 1990s tended to take the shape of Charles Krauthammer’s ‘unipolar moment’. While the UN expanded its peace missions in both number and size and peacekeeping itself was ‘hardened’ through robust mandates and the provision of stand-by arrangements for their support, the liberal democracies in the guise of NATO or ‘coalitions of the willing’ under the leadership of the United States began to sidestep collective action as provided for in the UN Charter. This way, the much debated ‘democratic peace’ gave way to wars of democracies (Geis et al., 2006, 2013). This was justified by the need to act when the UNSC was unable to come to an agreement on what to do in the face of large-scale violence. But the ‘need to act’ was not simply pre-given. It was as much a product of humanitarian crises as of an uneven framing of the normative implications of international protection. On the one hand, there was the attempt to reconcile the prohibition of intervention (Art. 2 (7) of the UN Charter) with the duty of all member states of the UN to respect human rights (Art. 1) which included collective action for promoting respect for human rights (Art. 55). As understood by the UN General Secretariat this was to be achieved not through watering down Art. 2 (7) and curtailing sovereignty, but rather through a new understanding of sovereignty as the responsibility of a government vis à vis its people and also vis à vis the international community (Deng et al., 1996; von Arnauld, 2009). This understanding of sovereignty was to prevent that governments would invoke the norm of non-intervention in order to ward off 8

Address to the Economic Club in Chicago, http://www.number10.gov.uk/Page1297, cited in Geis (2011: 206). 9 Since this was a procedural matter, a majority decision against the will of veto powers was possible.

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international engagement for the protection of human rights. It thus opened up a new approach towards matching universal norms and national self-determination. On the other hand, however, the way in which the new understanding of sovereignty was handled in practice reflected the fact that, under conditions of extreme power discrepancies, universalism tends to favor the normative preferences of the strong. Thus, under the influence of the liberal democracies, respect for human rights was complimented by other substantive standards of adequacy such as democracy, good governance, the rule of law, a justifiable balance between military and civil spending, open markets, and later on the willingness to cooperate in the fight against terrorism (Reisman, 2000). This had two implications: first, since the liberal democracies in theory came closest to meeting these standards, in practice they were more sovereign than all the rest (O’Connell, 2005). Second, since sovereign governments owed the responsibility to protect not only their people but also the international community, this created a need to act on the side of the latter which it was ill equipped to do. This was (and still is) especially true with regard to the decision-making requirements in the UNSC (cf. Wheeler & Dunne, 2012). As a result, there emerged a growing gap within the UN system between substantive norms and procedural rules for their promotion or enforcement. This is highly problematic since powerful states may be tempted to fill such a gap by unilateral action (Brock, 1999). As a matter of fact, they may be quite happy about this gap since it can be invoked to legitimize unilateralism as an action to promote substantive norms in the absence of established procedural routines for dealing with them. Instead of contributing to the development of such routines, especially the United States as the leading Western power took refuge to a narrow understanding of the prohibition of intervention and a wide understanding of self-defense (Art. 51, cf. Marauhn, 2021) which was supposed to free the United States from almost all legal strings attached to the use of force by the UN Charter.10 In sum, liberal democracies championed the protection of people against gross violations of their human rights. But especially the leading Western country, the United States, was skeptical when it came to accepting those rules of the Charter which curtail their own freedom of action. In this sense, tying sovereignty to the substantive standards which the liberal democracies claimed to stand for amounted to a ‘hyper-sovereignty’ of the latter (O’Connell, 2005). It was illustrative of this hypersovereignty that the United States championed the establishment of legal tribunals for the persecution of war crimes in particular cases, but (in contrast to other liberal democracies) were among the most fervent opponents of the establishment of the ICC as a permanent court (Deitelhoff, 2007).

10

With reference to the Caroline Case of 1837 the US National Security Strategy of 2002 claimed that the United States had the right to pre-empt the emergence of a threat to its security. This argument might have been used to justify a military strike against Iran in order to prevent it from acquiring the capacity to build nuclear weapons.

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2.2 The Western Role in Institutionalizing the Responsibility to Protect as a Contested Concept The need for, and legitimacy of, the international protection of people in domestic conflict (religious minorities, expatriates, individual human beings) has been claimed—and challenged—all through the history of the modern system of states (Jahn, 2012; Recchia & Welsh, 2013; Simms & Trim, 2013; cf. Hansel & Reichwein, in this volume). With the ‘discovery’ of the Americas, it took the shape of a European concept brought to bear in a global theatre of colonialism. This historic link between colonialism and humanitarianism can be subsumed under Jochen von Bernstorff’s ‘order related’ justification of the use of force (von Bernstorff, 2018: 236; cf. Benton & Ford, 2016) based on the distinction between ‘civilized’ people and those living in the ‘state of nature’ (Eberl, 2021). This has to be taken into account when dealing with international protection politics today because the latter not only has a colonial past but also a neo-colonial present and future (if in an ever-changing form) (Chimni, 2021; Jahn, 2012; Mallavarapu, 2021; Hansel & Reichwein, in this volume). Nevertheless, the politics of protection pursued in the post-Cold War era cannot be reduced to a neo-colonial design. As the concurrence of the debate on humanitarian intervention, ‘human security’, the constitutionalizing of international law, and the upsurge of cosmopolitan thinking in the 1990s together with the vastly expanding research on norms demonstrate, the politics of protection were also part of a global project for overcoming arbitrary violence and strengthening rule-based governance at the domestic and international levels.11 The peaceful ending of the East–West antagonism on the one hand, the persistence of violent conflict in many countries of the Global South on the other, together with the conflicts that accompanied the breakup of the Socialist World System offered a sense of urgency to alleviate the fate of people in violent conflict (cf. Hasenclever, 2001; Wheeler, 2000; Wheeler & Dunne, 2001). The global power shift that went along with the breakdown of Real Socialism enabled the liberal democracies to take the lead in this endeavor. At the same time, however, the post-Cold War power asymmetry tempted the liberal democracies to practice protection as domination— directly as in the cases of Kosovo, Afghanistan, and Iraq, and indirectly as a means to loosen the strings attached to the use of force by the UN Charter (Brock, 1999, 2005) and perhaps also as a way of shifting public attention away from the abortive debate of the 1970s on a New International Economic Order towards mitigating the humanitarian consequences of the existing one (Anghie, 2004; Chimni, 2021; Jahn, 2012; Mallavarapu, 2021). In this regard, the theory and practice of international protection after the Cold War demonstrated what Anna Geis has called ‘the precarious civilizational potential of Western democracies’ (Geis, 2011).

11

Beitz (1994), Held (1995), Finnemore (1996), Habermas (1997, 2008), Finnemore and Sikkink (1998), Risse et al. (1999), Weiss (2000), Jackson (2000), ICISS (2001a, 2001b), UN Secretary General (2009), Archibugi (2004), Zürn (2011), and Krieger et al. (2019). On norms cf. the literature report by Rosert (2012).

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As already mentioned, during the Cold War, the intervention was not confined to the protagonists of the East–West struggle. It also took place between states of the Global South as in the cases of India’s intervention in the war between East and West Pakistan in 1970, Vietnam’s intervention in Cambodia (against the Khmer Rouge) in 1978, and Tanzania’s intervention against the Idi Amin Regime in Uganda in 1979. The advocates of humanitarian intervention boldly referred to these cases to support the claim that humanitarian intervention was in line with international customary law (Greenwood, 2005; Reisman, 2000; Téson, 1988, 2017) while the non-aligned countries as a group stood in for strict adherence to non-intervention and self-determination.12 This reflected their experience with ‘the battle for international law’ (von Bernstorff & Dann, 2019) in the wake of formal decolonization which also included the issue of the decolonization of human rights (Hoffmann & Assy, 2019). The conceptual transformation of humanitarian intervention into R2P amounted to an attempt by the international community as assembled at the UN summit of 2005, to pay tribute to the need for protection while at the same time putting reins on the practice of humanitarian intervention. The UN Summit confirmed that governments and the international community at large should not remain indifferent towards the suffering of people exposed to excessive violence. At the same time, it played down the role of military action in favor of international assistance to governments that are not able to meet their responsibility to protect. Military action in case such assistance should not work was to be authorized by the UN Security Council (UN General Assembly, 2009).13 The recourse to responsibility glossed over the fact that it meant different things to the international community and the individual states. The international community was assigned a moral duty to protect, whereas individual governments were subjected to a quasi-legal norm concerning their behavior vis à vis their ‘own’ populations (von Arnauld, 2009). It was the United States that (in silent concord with Russia and China) blocked any wording of R2P that would have gone beyond a moral duty to protect people in other countries from mass atrocities.14 As the dominant power, the United States was interested in the recognition of a right to intervene, but not in the formulation of a legal duty to do so, the US ambassador to the UN, Bolton, even threatened withdrawal of the United States from the entire project should the Summit of 2005 vote for more than a non-binding moral appeal to protect. Washington wanted to buffer the admissibility of intervention for the protection of people without getting its hands tied—neither by legal obligations nor by procedural constraints. This way the United States tried to redress the balance between the legitimacy and the legality of humanitarian intervention in favor of (unilateral) legitimacy claims (Daase, 2013;

12

Cf. the Friendly Relations Declaration of 1970 and below. All the same there were those who felt that humanitarian intervention had been strengthened through the adoption of R2P so that it supported unilateral intervention in the case of Security Council failure to act (Bannon, 2006: 1158). 14 The Genocide Convention obliged countries to take action against genocide while participation in collective action according to Ch. VII of the UN Charter is voluntary. 13

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cf. Koskenniemi, 2009; Brock, 2019). This corresponded with the long history of US interventions in Latin America (Cottam, 1994; McPherson, 2016). The Outcome Document of 2005 was to provide a normative basis for international protection without opening up new avenues for unilateral intervention. The Security Council confirmed R2P on various occasions and a clear majority of participants of the UN debate on R2P organized by UN Secretary-General Ban Ki-moon, evinced their support for R2P (Hofmann, 2014: 247–299). In March 2011, R2P was even invoked as part of the justification of military action authorized by the Security Council to protect people against mass atrocities in Bengazi (Libya) and the Ivory Coast. The respective resolutions came about in spite of the clear anticipation that the major interveners would be liberal democracies or former colonial powers, respectively. The way authorization for the use of force in the case of Libya was carried out promptly revived the former distrust of non-Western states that the politics of protection served as a mere screen for liberal interventionism (Bellamy & Williams, 2011; Brockmeier et al., 2015; Chivvis, 2014; Dembinski, 2016; Dembinski & Reinold, 2011). The critics claimed that it was not the protection of people which was on the agenda of the intervening states but rather regime change (which was not denied by the liberal P 3 [Hofmann, 2019: 304]). This way the liberal interveners supposedly had betrayed the good faith of those who had agreed to protective measures or refrained from vetoing them in the face of serious threats directed by Gaddafi against the people of Bengasi. On the basis of this perception of collective action as partisan intervention, the African Union recalled its initial support for the intervention in Libya. Russia as well as China refused to agree to any resolution on the case of Syria which, in their reading, could have been used to legitimize intervention for regime change, even though the Russians, in the first phase of the Syrian war, were not decided on whether to support the Assad regime or dropping it. In the case of the internationalized civil war in Yemen, too, no resolution with any substance could be passed (Hansel & Reichwein, in this volume). The cautious support for the institutionalization of an international humanitarian engagement ran into rough waters. Though the Security Council continued to refer to the idea of protection in the years after the Libya debacle, this did not trigger successful efforts to adjust the UN system to the respective needs. Brazil’s idea of a ‘responsibility while protecting’ was right to the point, but it was dropped as quickly as it had come up, even by the Brazilian government itself (Stuenkel & Tourinho, 2014; Tourinho et al., 2016). The same happened to China’s idea of ‘Responsible Protection’ tabled in 2012 (Fung, 2016; cf. Chi, 2021: 426–430). Ever since, there have been sparse new attempts to operationalize R2P as a guiding principle for dealing with human suffering including the ‘third pillar’ of R2P—i.e. early and decided action authorized by the Security Council if governments are manifestly unwilling to live up to their responsibility to protect and international support in line with ‘pillar two’ fails. The flagship of legalization, the ICC also got into troubled water. The AU complained that the ICC, which they had helped to bring about (to combat domestic violence), was turning into an institution for prosecuting African leaders. Three African countries threatened to leave the Court (South Africa, Burundi, Gambia),

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one (Burundi) finally did. African contestation of the ICC was triggered by the apprehension of most African states that the ICC instead of serving as an instrument of political stabilization turned to prosecuting incumbent political leaders and thus contributed to the destabilization of the respective countries. The resulting opposition to the ICC culminated in utter disrespect for its ruling in the case of Sudan’s head of state, Omar al Bashir. In clear violation of the ICC ruling on his case, he was allowed to visit South Africa obviously under the clandestine guarantee of safe passage which allowed him to leave the country unharmed (Arcudi, 2019: 188; cf. Deitelhoff, 2020: 722). All of this coincides with an incipient global power shift that redresses the balance between the liberal West and ‘the rest’. So it seems plausible to argue that the debate on the international protection of people from domestic violence gained momentum with the rise of the liberal West to the dominant group of powers in world politics and is going down with its decline. However, it would be equally plausible to argue that the present state of affairs reflects basic predicaments of international human protection leaving little space for progress under any constellation of powers. This would imply that liberal predominance helped to create the illusion that the issue of international human protection could be solved ‘once and for all’ (Evans, 2008) by designing a clever scheme for pursuing this cause. Before getting back to the impact of ‘Western decline’ on international human protection, I will address some of these basic predicaments or dilemmas of international protection. These predicaments do not constitute unmalleable obstacles to more effective protection but they certainly limit the margins of what can be expected (cf Thakur, 2015).

3 The International Politics of Protection—An Illusion? 3.1 Built-in Tensions in the UN Charter Critics of R2P insist that historic experience militates against any attempt to legitimate the international use of force for the protection of people from domestic violence (Chomsky, 2011; Jahn, 2012; 2005). Others claim that the language of protection is apt to hide the militant side of humanitarianism (Cunliffe, 2011). Still, others are convinced that no matter how you handle it, R2P undermines the norms of nonintervention and the prohibition of the unilateral use of force and thus contradicts the ‘responsibility to peace’ that the UN Charter is all about (O’Connell, 2011). The emergence of a new normative frame of reference in international politics is obviously an erratic process. Innovation in human protection met with contestation by those who tried (and try) to continue the post-colonial battle for international law (von Bernstorff & Dann, 2019). As the research on norm contestation has sufficiently shown, contestation as such does not necessarily disrupt the evolution of norms but

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rather should be seen as an integral part of it.15 But that does not rule out the possibility of stagnation or backlash (Deitelhoff, 2020). Stagnation or backlash do not only reflect changing political constellations but also structural problems inscribed in the difficult co-existence of the different aims which UN members are expected to heed. Art. 1 of the UN Charter identifies three aims of the United Nations: – to maintain and strengthen international peace and security, – to develop friendly relations among all nations based on equal rights and selfdetermination, and – to achieve international co-operation for the advancement of human well-being and human rights. The UN is to serve as the center for coordinating the actions of nations in the attainment of these common ends. Ideally, the various efforts to attain these goals would enforce each other. In practice, however, tensions arise between them (Hehir, 2017). This goes also for the interrelationship between preserving or securing peace and protecting basic human rights (Brock & Deitelhofff, 2012; O’Connell, 2011). The Kosovo war discussed above offers a clear illustration of this tension. NATO’s proclaimed aim of protecting the people resulted in a full-fledged air war without Security Council authorization. The formula of international lawyers that the war was illegal but legitimate (Simma, 2000) just as the argument by Jürgen Habermas (2000) that, under certain conditions, the Kosovo war could be understood as an anticipation of adequately institutionalized world order, constituted attempts to mitigate negative normative consequences of the unauthorized use of force for the evolution of the international rule of law. The invention of R2P was in line with this concern. On the background of the inability of the United Nations to interfere with the genocide in Rwanda in 1994 and to prevent the massacre of Srebrenica in 1995, the Kosovo war triggered the invention of R2P. The approach of the ICISS was to redefine the issue of human protection, to spell out concrete possibilities of enhancing international protection, and to confront the Security Council with the consequences of failing to live up to the need for reform for its own standing and ‘the stature and credibility of the UN itself’ (ICISS, 2001a: 55). The ICISS called upon the Permanent Members of the Council to restrict the use of their veto arguing that ‘it is unconscionable that one veto can override the rest of humanity on matters of grave humanitarian concern’ (ICISS, 2001a: 51). It also suggested that in cases in which decision-making in the Security Council was deadlocked the General Assembly should take over in a ‘uniting for peace’ format. When R2P was accepted by the UN Summit of 2005, both suggestions fell by the wayside. This reflected not only the persistent refusal of the Permanent Five to agree to any curtailment of their veto but also the resistance of the Global South against any provision which could be read as conditioning the prohibition of intervention (Art. 2 (7) UN Charter). As a result, the generally accepted interpretation of the 2005 version of the R2P (formulated by Secretary-General Ban ki-mon [UN GA, 2009]) identified the well-known three 15

With respect to R2P cf. the Global Responsibility to Protect, Special Issue 2019. 11:2.

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pillars of R2P calling for national protection, enabling international assistance in this endeavor and (early and decisive) international enforcement under Ch. VII UN Charter (authorized by the Security Council) in cases of the manifest unwillingness of a government to live up to its responsibility. That was just about as far as the international consensus on human protection reached at that time. The security Council confirmed R2P on various occasions as a normative frame of reference for international involvement in intrastate conflict. This looked quite promising on the surface. But as the shift in attitude towards R2P in the wake of the 2011 intervention in Libya demonstrated, the consensus reached on R2P did not constitute a strong protection for the responsibility to protect. Intervention in the case of Libya was authorized on humanitarian grounds (to protect the people of Bengasi), but the intervention itself was carried out in such a way that the intervening states acted as a war party. While the intervening states argued that this was a condition of effective protection, states that had (hesitatingly) agreed on Resolution 1993 or abstained from criticizing the military intervention as action taken to achieve a regime change (UN Secretary General, 2012: 5, cf. 19 and see above). Externally supported or administered regime change is just about the strongest action in defiance of the prohibition of intervention (Art. 2 (7) UN Charter). This explains the sharp reaction of the African Union to the (authorized) military intervention which ended up with toppling Gaddafi (Dembinski, 2016; Dembinski & Reinold, 2011; Hofmann, 2019: 300–305). For the Global South (non-) intervention was essentially connected to overcoming colonialism as a system of domination which they experienced, in substance, even after formal decolonization (Anghie, 2004; Chimni, 2021). The resulting battle for moving from decolonization to substantive self-determination amounted to an attempt to turn international law from an instrument of imperialism to a source of emancipation (von Bernstorff & Dann, 2019). In the words of Jochen von Bernstorff (referring to the legal recognition of wars of liberation), this amounted to ‘an attempt to plug one’s own history from the jaws of the colonizers’ (2019: 55). One of the outcomes of this ‘battle for international law’ was the ‘Friendly Relations Declaration’ of 1970 which mirrored the Latin American experience with post-colonial intervention and which took over the wide understanding of non-intervention Latin Americans had wrested from the United States in negotiating and renegotiating the Charter of the Organization of American States. The ‘Friendly Relations Declaration’ was to bolster non-intervention and self-determination as basic principles of post-colonial international relations. The importance of this endeavor for the Global South derives from the fact that the principle of equal sovereignty of all states is systematically challenged by blatant inequalities of material capabilities and political status between them. The prohibition of intervention (Art. 2 (7) UN Charter) is to mitigate this effect of factual inequality. However, non-intervention in itself is a contested concept. This refers to the issue of what is essentially within the jurisdiction of states on the one hand, and the difference between intervention and admissible engagement on the other. Nonintervention is a functional prerequisite of the international system as a legal order.

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Yet, what belongs to the realm of the individual state and what belongs to that of the international community is a continuing source of controversy between North and South, West and East. This controversy increasingly comes to bear in the form of disruptive nationalism which presently afflicts liberal democracies, too. In the liberal democracies this disruptive nationalism in part reacts to the backfiring of unequal globalization on the liberal democracies themselves (cf. Neu, 2018; Saiz, 2021). The expansion of substantial standards to be met by each State to qualify as sovereign in a globalized world (Brown & Ainley, 2005: 222; Hehir, 2011: 96) and the lack of non-interventionist methods for enabling states to live up to these standards is an essential part of the problem. With the breakdown of Real Socialism, the idea that there existed ‘third’ pathways to a self-determined social order vanished. Liberal Democracy in combination with neo-liberal economics became the only game in town. Today this game is losing a lot of its luster. China is offering itself as an alternative model. It will be interesting to see to what extent the global power shift will open up new ideas in the Global South (and elsewhere) about ‘third ways’ to the good life which non-aligment once stood for.

3.2 Humanitarian and Non-humanitarian Aspects of Protection Politics The decision on international protection rests with a body, the UN Security Council, which is supposed to function as a public authority. Yet the members of the Security Council tend to be interested parties in the conflict or situation they have to deal with. This is certainly not unique, but at the international level, it is especially troubling. Humanitarian crises can serve as a smokescreen or selling argument for intervention and regime change in the pursuit of geopolitical goals of those intervening (Barnett, 2005: 731; Hansel & Reichwein in this volume). Along this line of critique, the entire narrative of humanitarian protection could be regarded as a selling argument for those liberal policies of international law which, instead of advancing collective action for the protection of human rights, help to widen the freedom of action of dominant states in pursuit of their specific agendas (Cunliffe, 2011; Jahn, 2012). In their paper on the ‘new politics of protection’, Bellamy and Williams write: Although many internet blogs and newspaper editorials have accused western states of pursuing their material interests in Libya, especially in relation to oil, we have found little evidence to support such an interpretation. Nevertheless, the perception of ulterior motives and agendas may make it more difficult in the future to forge a consensus on the use of force for protection purposes, within the context of either a peacekeeping operation or a potential humanitarian intervention. (Bellamy & Williams: 848)

This certainly is a valid observation. However, the problem is more profound. Whenever human rights are to be protected through outside intervention it is not only the plight of the people which challenges politics but a large array of other considerations which come into play. The more is at stake for the (potentially) intervening states,

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the more selective or careful they will be in their engagement. No state is exempt from the respective calculations as the cases of Libya and Syria demonstrate. One can call this opportunism. But it reflects the need for any government to consider not only the fate of those who suffer under mass atrocities in other countries but also the implications of any action abroad for the situation at home. Interventions are costly in many aspects: political, economic, cultural, etc. No government can be expected to intervene without due consideration of these costs (ICISS, 2001a: 35–36). For this reason, humanitarian action will rarely reflect purely humanitarian motives (Bellamy & Wheeler, 2008; Aboagye, 2012; Daase & Deitelhoff, 2020). This, in turn, implies that any decision to intervene or not intervene will always be contested. The issue of self-interest behind a certain policy will play an important role in this. For example, in the case of Syria, the liberal democracies and most of the Arab countries criticized Russia and China for blocking even the mere condemnation of the excessive use of force by the Assad Regime. Especially the position of the Russians was attributed to their geopolitical interests in the region. But the liberal democracies and the Arab countries have, of course, their own geopolitical agendas which concern i.a. the struggle with Iran and the conflict between Israelis and Palestinians. This is not to say that there is no way of passing judgment on a specific case. It rather means (as already stated) that any judgment is contested and that therefore rules for dealing with such contestation are needed (Brock, 2019). Without such rules, humanitarian protection is really moving in a swampy terrain. However, this should not lead us to shake off the entire debate on humanitarian protection as mere hypocrisy. All political action is determined by mixed motives (Paris, 2014: 572). Self-interest is one of them and it does not necessarily favor self-help. Self-interest also comprises the reduction of transaction costs through the establishment of routine cooperation. So cooperation is within the array of options for self-interested states who are confronted with a humanitarian crisis in other states (Brock, 2016). More importantly, and beyond rationalist calculations, it is not only self-interest that comes to bear but an interplay between self-interest and the standards of adequacy which govern political behavior (Paris, 2014: 573 with reference to Binder, 2009). Both change constantly in the course of this interplay. They are never fixed once and for all. From a social constructivist viewpoint, interests only take shape in the context of different ideas and images of the world and the constellations of power in which they unfold (Finnemore, 1996; Finnemore & Sikkink, 1998). This is to say that moral arguments do not only serve as a façade behind which true motives are hidden (like the quest for oil, military bases, geopolitical standing, etc.). It certainly would be naive to ignore such interests, but it would be equally naive to regard them as the sole driving forces behind humanitarian action. It still seems more ‘realistic’ to proceed on the assumption that self-interest, beliefs, and ideological preferences are not only intertwined but actually constitute each other (Katzenstein, 1996; Müller, 2004; Soerensen, 2008). In this sense, morality and politics are linked in a way that cannot simply be discarded as an ideology. Instead of serving merely as an instrument of politics, moral arguments also have to be regarded as factors influencing politics. The concept of ‘good international citizenship’ (Wheeler, 2000; Wheeler & Dunne, 2001) also

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belongs into this category of what may somewhat paradoxically be called autonomous instruments of politics (which develop a dynamic of their own). So it is basically acceptable when political actors refer to moral arguments. The problem begins at the point at which moral engagement is said to turn politics into universal problemsolving beyond particular interests. Firstly, the moral of those who refer to moral arguments does not render a counter position amoral. Moral arguments do not cancel each other but confront each other in an arena in which they compete for discursive authority vis a vis specific audiences (Hehir, 2011: 95–96). Secondly, as Beate Jahn points out, moral arguments have to be recognized as political arguments (Jahn, 2012). They grow out of particular concepts of social order and represent these concepts which are to be distinguished from other concepts. As Jahn (2012) argues, the term ‘humanitarian intervention’ is used to turn politics into a moral practice and to hide the political dimension of this practice. An example of such a separation of politics and morality is offered by an assumption that became quite popular in the late 1990s. The assumption was that the moral evolution of the international community had outpaced the evolution of the legal framework. Supposedly there existed a gap between moral awareness and legal provisions for protecting people which had to be made up by humanitarian intervention (critical: Hehir, 2011: 96). Instead of confronting each other, politics and morality constitute each other (Jahn, 2012: 43, 55). Under this perspective, the second dilemma of the international protection of people from intrastate mass atrocities consists in the fact that claims to universality (protection of human rights) are inextricably linked to particular interests, which are hidden by the reference to transcendental values (human rights). In other words, the protection of people from mass atrocities always involves politicking. This is the precondition for getting the international community engaged vis-à-vis humanitarian crises to begin with. Going one step further, Roland Paris writes (2014: 573): ‘The observation that effective military action presupposes a measure of self-interest on the part of the interveners is important because it suggest that self-interest is implicitly built into the strategic logic of R2P’. Thus it is a waste of time to hunt for the hidden motives behind the politics of (non-) protection. Morality is constantly being exploited by politics, and politics is constantly under pressure to conform to morality (Hasenclever, 2001). The self-interest involved in humanitarian interventions constantly remains a source of delegitimization and thus normative backlash.

3.3 The Complexity of Humanitarian Protection In the case of Libya, the UN Human Rights Commission, the Secretary General, and the Security Council all invoked the Responsibility to Protect. However, In the case of Syria the Security Council could not even agree on a mere verbal condemnation of the Syrian government due to repeated vetoes by Russia and China. In its stead, the General Assembly on 16 February 2012 passed a resolution the language of

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which corresponded to a draft resolution of the Security Council vetoed by Russia and China two weeks earlier. The resolution was introduced by the League of Arab States. In it, the General Assembly (…) 2. ‘strongly condemns the continued widespread and systematic violations of human rights and fundamental freedoms by the Syrian authorities, such as the use of force against civilians, arbitrary executions, the killing and persecution of protestors, human rights defenders and journalists, arbitrary detention, enforced disappearances, interference with access to medical treatment, torture, sexual violence, and ill-treatment, including against children; (…) 6. Calls upon the Government of the Syrian Arab Republic to immediately put an end to all human rights violations and attacks against civilians, protect its population fully (and, L.B.) comply with its obligations under applicable international law (…). (UN General Assembly, 2012)

The resolution was passed with 137 states voting in favor, 12 against, and 17 abstaining. The vote on the resolution was preceded by a special briefing by Navi Pillay, United Nations High Commissioner for Human Rights, ‘who expressed outrage at the then bloody 11-month crackdown on opposition protesters. She warned that the Council’s failure to take action had emboldened the Syrian Government to launch an all-out assault to crush dissent’ (UN Meetings Coverage and Press Releases, 2012). The resolution was an impressive confirmation of the responsibility of the Syrian Government for the protection of the Syrian people in a time of political turmoil. It also condemned ‘all violence irrespective of where it comes from, including terrorist acts’. But it insisted that the Assad Regime was to blame for starting and escalating the violence and that, therefore, had to take the first step to stop the fighting. It goes without saying that the Syrian government rejected the resolution. It expressed ‘deep concerns vis-à-vis the real intentions of the sponsors of the draft resolution’; it stressed the ‘exclusive responsibility of the Syrian state to protect its citizens from these (terrorist, L.B.) attacks’ and argued that the resolution amounted to an unprecedented assault on the principle of sovereignty.16 Today, supported by Russia, this kind of argument is repeated with a view to the opening (or rather closing) of corridors for humanitarian assistance to civilians in the war zones adjacent to Turkey. There is a general consensus that every government has the right to quell a rebellion. But no government has the right to use disproportional means for this purpose. Still, the question remains: Where is the borderline between maintaining public order and committing crimes against humanity, and—as a consequence— where does admissible international engagement for the protection of people end and inadmissible intervention begin? In the case of Libya, the situation seemed fairly clear: The Gaddafi regime threatened the opposing groups (in Bengasi) with annihilation and its initial reaction to the uprising seemed to make this threat credible. Therefore, it was widely assumed that large parts of the population were in a clear and present danger of losing their lives. 16

UN GA, A/66/PV. 97.

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Still, the international community acted under a high degree of uncertainty: First of all, under the spell of the perceived danger for the people in Libya, the international community did not take time to check the facts on which it acted. Secondly, it was not clear what effective protection called for and thus what kind of engagement qualified as proportional. The intervening NATO states claimed during their intervention that protection called for regime change. Large parts of the global South felt that regime change was not covered by Resolution 1973 and infringed upon the right to self-determination (Dembinski & Reinold, 2011). Finally, under the perceived time pressure, there was no due consideration of the wider repercussions and possible unintended consequences of the intervention which turned out to be quite serious and persist until today (breakdown of public order in Libya and destabilization of the Sahel zone). In the case of Syria, the situation is even more complicated. In the beginning, government repression was defined as a brutal (unproportional) reaction to public protests. However, as parts of the opposition became violent themselves and the government reacted by militarizing the conflict which interacted with the direct and indirect foreign support for the regime or for the various opposing groups the picture became quite blurred. Within a year, the original public protest against repression turned into an internationalized civil war. The situation was further complicated by the involvement of the Islamic State (IS) and the tension between Saudi Arabia and Iran and of course by what it meant for Israel. As a result, it is almost impossible to determine what kind of international action would have most effectively helped to demilitarize the conflict, sustain the territorial integrity of the country, protect the people, and provide for some sort of reconciliation and political reform which would also avert threats to regional and international peace and security. Roland Paris in his observations on the problem stresses the dependence of preventive humanitarian intervention on the logic of counterfactual thinking (Paris, 2014: 574). ‘Syria’ would have been (and tragically continues to be) an issue of intervening in an ongoing conflict. This is the most likely scenario for humanitarian interventions. But even in this case, it was extremely difficult to anticipate what kind of intervention would most likely have which result. This, again, opens up the arena for competing judgments. This observation points to the third dilemma of the international protection of people from mass atrocities: the complexity of the task (Bulley, 2011: 443). Military intervention can be seen as an attempt to reduce this complexity by altering the framework of reference under which a conflict is being carried out. But the experience with military intervention is quite mixed, to say the least. In the most spectaculr case of Afghanistan, the intervention forces left the country after 20 years of military engagement without being able to weigh success and failure. There are a few instances in which outside military engagement seems to have had a positive impact. A much-cited example is East Timor (Wheeler & Dunne, 2001). Perhaps the Australian intervention in the Salomon islands in 2003 can also be considered a successful attempt to reduce ongoing violence. But in most of the cases (Somalia, Haiti, Afghanistan, Iraq, Darfur, Democratic Republic of Congo, Côte d’Ivoire, Central African Republic, Afghanistan, Iraq) the record is not very

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promising (Brock et al., 2012: 97–137; Dembinski & Gromes, 2013; Gromes & Dembinski, 2019; Peksen, 2012; Hofmann, 2015). The problem lies not only in mistakes and insufficient capacities. Experience shows that the more important enforcement action becomes in the context of international engagement to protect people, the higher the risk of unintended consequences will be. There is a simple reason for this. Every decision for a military engagement tends to overrate the capacity of the military to shape the local conditions because it is the strong countries that intervene in the weak ones. The resulting power asymmetry creates the illusion that things can be done according to external notions of how they should be done. The discrepancy between power and relative weakness stimulates the expectation to be able to cut through the Gordian knot of violence as a social practice and in this way open up the road for political and social change. Time and again this expectation has been proved to be premature. Military interventions follow their own logic and this logic has nothing to do with the mode of operation of the ‘intervened’ society. The bigger the difference between the strong and the weak, the more widespread the idea will be that the ‘intervened’ societies are a tabula rasa which is open for modeling from the intervening forces (Stewart & Knaus, 2011). The hubris that usually goes along with the perceived power discrepancy tends to turn military intervention into part of the problem which it is to be solved. The use of military force, no matter how hard you try to avoid it, tends to damage the existing infrastructure, undermine endogenous forms of conflict resolution, and ignore or expropriate local agendas (Autesserre, 2009). However, the complexities of intervention also come into play in the protection of people in conflict as part of peace missions. The Security Council by now routinely attaches a protection element to peace missions. This involves the presence of armed outsiders who check spoilers of peace agreements and shield vulnerable groups from assault. This kind of international protection policy is based on international humanitarian law and international human rights law and proceeds with the consent of the respective parties (UN Secretary General, 2012). Under these conditions, the military presence of the international community, in general, could be expected to contribute to local protection, especially in combination with assistance for political, economic, and social reconstruction (i.e. ‘the responsibility to prevent’ and ‘the responsibility to rebuild’ under R2P). Yet, in spite of the fact that the UN is putting more emphasis on the protection of people in this form, in practice it still seems to be lacking a coherent strategy and adequate means to really make a difference.17 For a lack of workable alternatives, the UN still adheres to a ‘trade-off’ culture under which the eschewal of critique concerning official wrongdoing is traded for access to humanitarian work which is increasingly difficult to attain. As Marc Duffield observed, the cooperation between international security personnel and aid workers on the ground quite often takes the shape of a ‘fortified aid 17

UN. (2015). The challenge of sustaining peace: Report of the advisory group of experts for the 2015 review of the United Nations peacebuilding architecture [online]. Available from: https://reliefweb.int/report/world/challenge-sustaining-peace-report-advisory-groupexperts-2015-review-united-nations. Cf. Paffenholz (2021).

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compound’ which keeps the locals at a distance (Duffield, 2010). In the meantime, the entire peacebuilding activities in the UN framework have been reorganized to honor the locals (Autesserre, 2014; Mac Ginty, 2011; Richmond, 2012). The next step is to change the time horizon of peacebuilding and emphasize ‘perpetual peacebuilding’ (Paffenholz, 2021). All these efforts demonstrate that the complexities involved and the frustrations that go along with trying to cope with them also pertain to robust peace missions. The experience of the past two decades has led to some sobering up with regard to what intervention can do (Brock et al., 2012: 97–137). As Bulley states, there was plenty of evidence that ‘we cannot know for sure whether we are doing the right thing by intervening, regardless of the extent of our knowledge or the normative rules which we adhere to’ (Bulley, 2011: 443). This is to say that the prevalent criteria for the admissibility of the use of force are much more difficult to apply than is usually assumed. This goes especially for the ‘proportionality’ of the force applied (ICISS, 2001a: 37). Whether the military engagement of the NATO states in Libya was proportional remains contested even ex post because the unintended consequences of the intervention are still difficult to assess (Dembinski & Reinold, 2011; Reinold, 2011). Non-military action designed to protect people from excessive violence (Daase & Deitelhoff, 2021a) is also affected by these structural uncertainties. It is less risky with regard to unintended consequences. Yet it is even more complicated than military intervention. It has to deal with all those things which military intervention tends to push aside. Among these are endogenous traditions of conflict and conflict resolution which are difficult to grasp from the outside, forms of negotiated governance that do not fit Weberian ideas of statehood, local agendas which seem to be counterproductive for peacebuilding and yet have to be taken into account and the extreme difficulties of allowing for ownership in a constellation that is defined by gaps in competence and resources as defined by external actors (Autesserre, 2009; Hagmann & Péclard, 2011; Paffenholz & Reychler, 2005; Schlichte, 2008).

4 Reflection: The Rise and Fall of Liberal Predominance in World Order Politics—Its Impact on Human Protection R2P is an example par excellence of norm evolution through norm contestation. This contestation was shaped by the liberal predominance in protection politics and the resistance it provoked. However, as Rotmann, Kurtz, and Brockmeier stated early on, (2014: 358): ‘(…) the world in which this dynamic unfolded is no more. On the global stage of governments, foreign policy elites and advocacy groups, the Western, Western-educated or Western-funded movers and shakers have reluctantly begun to make way for a more heterogeneous cast of characters whose cultural background, legitimacy and influence vary greatly’.

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This observation leaves space for varuious but not necessarily contradictory outlooks on the future or R2P: The waning of liberal predominance could simply go along with the continuation of protection politics at a lower level of controversy resulting from a shift of attention from enforcement to reminding and empowering governments to live up to their responsibility to protect. This shift could go along with the professionalization and decentralization of protection politics through the creation of national focal points or transnational networks for dealing with specific issues of atrocity prevention (cf. Hofmann, 2019: 352–368). In contrast, Hansel and Reichwein in their contribution to this volume suggest that the current power shift may encourage authoritarian governments to appropriate R2P in its interventionist form to further their own interests thus leading to an increasing politicization of activities under the R2P umbrella. A third perspective on the future of protection politics could refer to the already visible tendency to focus on functional protection in peace missions operating under International Humanitarian Law. This could involve a new agenda for cooperation in the conflict which would be more interested in stabilization than in substantive conflict resolution. With a view to this perspective, Moe and Geis (2020) speak of a ‘new consensus on norm downsizing in interventions in Africa’. I will briefly discuss these different outlooks on the future of R2P by way of drawing some conclusions from the preceding observations.

4.1 Continuing the Politics of Protection at a Lower Level of Controversy and Engagement In his 2009 Report on R2P, Secretary-General Ban Ki-moon formulated the muchcited ‘three-pillars’ approach to international protection: the (legal) responsibility of each state to protect its own population, the (moral) responsibility of the international community to empower governments to live up to their responsibility to protect and the (likewise moral) responsibility of the international community to engage, if necessary, in clear and timely enforcement (which would include the option of military action under Chapter VII of the UN Charter). This version of the R2P continues to be widely accepted—at least up to the point beyond which major states would formally distance themselves from R2P. They have not done so up to now. Meanwhile, due to the precarious geopolitical aspects of military intervention and its unintended consequences, official reference to R2P tends to concentrate on ‘pillars’ one and two. To the degree that this can be interpreted as an emerging consensus that prevention should be ranked higher than reaction, cooperation higher than coercion, and non-military action higher than military intervention, emphasis on pillars one and two is in line with much of the critique of the politics of protection not only in the Global South but also in the liberal democracies themselves and by the

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non-governmental organizations operating in the North–South arena.18 It would also be in line with the original formulation of the Responsibility to Protect by the ICISS which couched enforcement (‘responsibility to react’) in between the ‘responsibility to prevent’ and the ‘responsibility to rebuild’. Taking ‘pillars’ one and two of R2P seriously would respond in a constructive way to the basic predicaments of international protection spelled out above: It would reduce the tension between the responsibility for peace (O’Connell, 2011) and the responsibility to protect by focusing on cooperation, non-military action, and prevention. Likewise, it would mitigate the mixed motives issue by widening the space for constructive controversy on morality and interest. Finally, it would lower the costs of unintended consequences of international protection politics resulting from the complexity of intervention as such and forcible intervention in particular. However, emphasis on ‘pillars’ one and two rather than ‘pillar’ three, while improving the acceptance (and humanitarian substance) of R2P, would not necessarily increase its impact on international relations. On the contrary, while it definitely makes sense to rank ‘prevention’ over ‘reaction’, ‘prevention’ is a weak tool for mobilizing public support.19 Everybody talks about the need for prevention. However, as Roland Paris observed, prevention is beset with the ‘counterfactual problem’ (Paris, 2014: 574; for a critical response cf Thakur, 2015): it is difficult to tell what kind of action is responsible for something that does not happen. For this very reason, prevention does not seem to have a high mobilizing effect. In view of the uncertainties that go along with economic globalization, environmental degradation, climate change, migration, technological innovation, and the run for scarce resources in the context of a global power shift, a growing number of people in liberal democracies seems to believe in regaining control over their own lives by political and military closure rather than by working on cooperative solutions. Thus, the shift of emphasis from pillar three to pillars one and two of R2P responds to former contestation and has kept this contestation from turning against international protection altogether. Yet, at the same time, it tends to lower the political weight of international protection in the present struggle over redefining world order. Whether this can be countered by building up globally connected national focal points on atrocity prevention remains an open question. Such focal points and networks (Global Action Against Mass Atrocities) could however infuse the discourse on international protection with a new focus on safe migration and safe work as measures of international protection. Regarding this topic, the agenda of human protection can be criticized for its lopsided concentration on gross physical violence without paying due attention to its links to the everyday violence of insecure migration and economic exploitation (Coen, 2016; Jahn, 2012; Neu, 2018).

18

For a strong example of this contestation by a non-governmental organization, cf. Weissman (2010). 19 Cf. Brockmeier et al. (2014: 22) on inconclusive prevention politics in the European context.

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4.2 R2P as a Normative Frame of Reference for Intervention by Authoritarian States Reichwein and Hansel in their contribution to this volume claim to see ‘a puzzling tendency among non-Western and authoritarian states to couch their own military interventions in a humanitarian language’. On the background of the history of humanitarian intervention in Europe (especially in the nineteenth century) which involved authoritarian states, they question the assumption that there exists a ‘liberal Western democracy-R2P/human rights protection-nexus’. This observation provokes critical second thoughts about the assumption that the practice of justifying the use of force with humanitarian grounds is a specific product of liberal world order politics. However, while it is true that states all through modern history have referred to the right and duty to protect people across borders, this observation does not diminish the need to look at the specificities under which humanitarian intervention is practiced and challenged. Under this perspective, R2P is largely the product of liberal world order politics as challenged especially by the Global South but also from within the various liberal democracies themselves. The intensity of contestation within and among the liberal democracies themselves most clearly became apparent when the US government connected the issue of protection with the ‘war on terror’ and when this was conceptualized by Anne Mary Slaughter and William Burke-White as a ‘constitutional moment’ for redefining the essence of world order politics (Slaughter & BurkeWhite, 2003).20 In the resulting transatlantic debate (Beestermöller & Haspel, 2006) ‘liberal’ and ‘critical’ International Relations tended to fuse in a kind of ‘critical liberalism’ (Geis et al., 2013: 362) which remained attached to cosmopolitan thinking but at the same time became aware of its historical and post-colonial ties to imperialism. For the Global South the respective struggle amounted to a continuation of the post-colonial ‘battle for international law’ which was to turn international law from a pillar of imperialism into an instrument of emancipation (von Bernstorff & Dann, 2019). To the extent that the appropriation of the politics of protection by major authoritarian states would not be burdened with an imperialistic past, they may meet with less resistance on the part of the Global South as the liberal practice of intervention did. However, in a system of states based on the principles of sovereign equality, intervention or the use of force in general calls for justification, and justification by its very logic opens up an arena for its critique by the audience to which justification is directed (Simon & Brock, 2021: 3). This critique would certainly become stronger when authoritarian states would begin to challenge the very idea of a rule-based international order based on sovereignty and non-intervention on the one hand, and cooperative multilateralism on the other (cf. for Russia Kurwska, 2014; for South Africa Verheuven et al. 2014).

20

For a critique see Fischer-Lescano (2005).

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Up to now, none of the major powers have questioned the normative foundations of the present world order.21 The most important among these countries today, China, has positioned itself in this order as an active participant which includes the acceptance of R2P as a political principle (Chi, 2021: 427; cf. Acharya, 2017: 275). While China continues to insist on the centrality of non-intervention, it still voted for the 2005 UN Summit Outcome Document anchoring R2P in the UN system. China today is the biggest single contributor of personnel to the UN peace missions. To be sure, China blatantly combines its general recognition of the rules constituting the normative frame of world order with important serious violations of these rules especially in the field of human rights and in the economic arena. From a post-colonial perspective (Anghie, 2004; Chimni, 2021; Mallavarapu, 2021) this kind of serious inconsistency is part of the history of the modern world order. That does not make it any better but would leave the door open to effective contestation. The decisive question is whether China will stick to its general acceptance of the normative achievements of the ‘battle for international law’ or whether it will question them in a fundamental way as it becomes an ever stronger antagonist of the United States and the rest of the West. As China rises the power rivalry with the United States will acquire a dynamic of its own. In this context, R2P can only survive if it functions not only as a normative frame of reference for justifying a new authoritarian interventionism but also for its critique.

4.3 From International Protection to Stabilization: A New Agenda? The liberal world order is a normative idea which, as Amitav Acharya (2017: 272) sums it up, consists of ‘four key elements: Free trade, post-War multilateral institutions, the growth of democracy and [the global dispersion of, L.B.] liberal values’. R2P reflects the latter. Yet, as repeatedly pointed out in this paper, it cannot be read as a direct translation of liberal values. Ideally, it rather constitutes an attempt to deal with domestic violence as an object of international concern in a reflexive way. This is to say that it responds to the critique of humanitarian intervention as power projection under the guise of humanitarianism (Chimni, 2021). R2P stands for the need to imbed sovereign judgment on the use of force in multilateral decision-making (Brock, 2019; cf Müller & Rauch, 2014; critical: Brown, 2013, 2021). In this respect, R2P is, if not a ‘good norm’, at least a ‘good political principle’ which fits the agenda of the ‘constitutionalization of international law’ (Habermas, 2006) understood as a process in the course of which arbitrariness of the use of force diminishes through binding the use of force to certain legal standards. However, recent political developments (including Russia’s war in Ukraine) suggest a negative answer to Habermas’ question of whether the constitutionalization of international law still has a chance 21

For a debate on the role of the BRICS in the evolution of international law cf. Rajput (2017) and the response of Chesterman (2017).

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(cf Oeter, 2008; Vec, 2010; Saxer, 2008). The same answer seems to fit the question of whether the international rule of law is on the rise or declining (Krieger et al., 2019). The introduction of R2P and the establishment of the International Criminal Court stand for progress towards a meaningful differentiation of rules, norms, and principles designed to upgrade humanitarian issues as an international concern and to guide states and international organizations in dealing with them. In view of the practice of humanitarian engagement this has led to increased contestation of humanitarian claims. This goes first and foremost for ‘applicatory contestation’ pertaining to decisions taken or policies legitimized in the given normative context.22 However, as Antonio Arcudi has shown in a careful empirical study on the ICC, in Africa there is reason to speak not only of a widening but of an ‘intensifying contestation’ of the activities of the ICC which refers to ‘the quantitative spread of contestation, but is also characterized by a rising degree of validity contestation’ (Arcudi, 2019: 178; cf Wiener, 2008). This intensification of contestation of the ICC activities refers to three issues that are of equal importance in controversies about R2P: the issues of the complementarity of national and international action in the field of human rights, the peace versus justice problematic, and the issue of the immunity of heads of state (Arcudi, 2019: 194). Arcudi suggests that norm robustness does not only depend on contestation as such but on norm modification caused by contestation. In the absence of such modification which ‘reconcile(s) the different beliefs and interests of diverse groups of actors’, validity contestation is liable to reach the upper hand over applicatory contestation (Arcudi, 2019: 197). Arcudi thus opens up the possibility to bridge the gap between norm erosion approaches and norm contestation approaches by looking at norm modification (resulting from contestation) as an intervening variable of norm dynamics. Under this perspective, it seems that both R2P and the ICC (as projects of strengthening the international rule of law) may not simply be in decline, but maybe changing or adapting to macro-political circumstances. The resulting norm modification could be identified as ‘norm downsizing in intervention’ which Louise Wiuff Moe and Anna Geis (2020) observe as going on in the politics of intervention in Africa). We show that with the rise of a new generation of interventions, reframed under the banner of ‘stabilisation’, the international preparedness to use force in interventions has increased, while norm-related interface conflicts between African and international actors in fact appear to have decreased. What we observe instead, is a growing pragmatic convergence between these actors regarding the use of force to defeat and regain territory from armed non-state competitors. (Moe & Geis, 2020: 388; referring to Hunt, 2017; Karlsrud, 2019)

To the degree that downsizing would imply a turn from fostering human rights and the rule of law to ‘counterterrorism, border control, prevention of migration, or the securing of territory’ (Moe & Geis, 2020: 408) the question comes up as to how much would be left of the substance of the (or any) responsibility to protect. Thus, Moe and Geis (2020: 409) warn of norm downsizing as serving a new elite consensus ‘across national, regional and international scales’ which would ‘limit the scope of human 22

For a clarification of the terms used see Arcudi (2019), Wiener (2014), and Deitelhof et al. (2018).

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and democratic rights of populations vis-à-vis “state rights” and state security’. On the other hand, normative downsizing could be read as mitigating the imposing aspects of liberal interventionism thus supporting the legitimacy of the (or any) ‘responsibility to protect’ as a guiding principle of national and international politics. This could also be to the advantage of local contestation. As Antonia Witt and Simone Schnabel (2020) show (with reference to interventions of ECOWAS in Burkina Faso and The Gambia), norm downsizing at the international or inter-regional levels obviously is not the end of local (bottom-up) contestation of (regional) intervention. In the two cases ‘contestation flared up in connection with different interpretations of the correct form, aim, and normative basis of intervention, rather than questioning the legitimacy of African regional organisations per se’ (Witt & Schnabel, 2020: 283).

5 Conclusion What does all of this lead up to? In his sketch of ‘what is right with R2P?’, Frazer Egerton (2012: 77) wrote: The criticisms of R2P ‘are actually derivatives of two main claims: that R2P dangerously undermines sovereignty, and that it represents an imposition of the will of the powerful against that of the powerless’. He was right in refuting both claims. R2P does not undermine sovereignty as such and it does not simply stand for the imposition of the will of the strong on that of the weak. The Global South was critically involved in inventing R2P and the powerful were not sure to which extent it was in their interest to replace ‘humanitarian intervention’ by R2P. Nevertheless, the introduction of R2P was part of a long-term ‘battle for international law’ (von Bernstorff & Dann, 2019) which did neither end with formal decolonization, nor with the end of the Cold War. It is going on and will most likely escalate with the global power shift which is currently underway. In the context of the Cold War, there were no locals. People no matter where they lived were considered as pawns in the global power game. Under liberal post-Cold War predominance, the locals were seen as (potential) agents for the diffusion of Western values. A quarter of a century of protection politics and efforts at peacebuilding makes it perfectly clear that the locals should finally become people in their own right. However, a new global shift of power may well disrupt the respective learning processes by reducing the space for contention rather than widening it.

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Lothar Brock (Prof. Dr.) is Senior Professor of Political Science at Goethe University Frankfurt, and Senior Fellow of the Peace Research Institute Frankfurt (PRIF). His work presently focusses on the role of international law in international relations and the theory and practice of cooperation in conflict. He has published extensively on the politics of international cooperation between North and South, the relationship between environmental degradation and conflict and

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on peace theory. His English publications include Civilizing World Politics. Society and Community beyond the State (Rowman and Littlefield, 2000, co-editor with Mathias Albert and KlausDieter Wolf), “The Use of Force by Democracies in the Post-Cold War Era. From Collective Action Back to Pre-Charter Self Defense?”, in: Michael Bothe, Mary Ellen O’Connell, Natalino Ronzitti, (eds.), Redefining Sovereignty. The Use of Force after the End of the Cold War: New Options, Lawful and Legitimate? (Transnational Publishers, 2005, 21–52), Democratic Wars. Looking at the Dark Side of Democratic Peace (Palgrave, 2006, co-editor with Anna Geis and Harald Müller), Fragile States. Violence and the Failure of Intervention (Polity Press, 2012, coauthor with Georg Sørensen, Michael Stohl and Hans Hendrik Holm), “Between Sovereign Judgement and the International Rule of Law. The Protection of People from Mass Atrocities”, in: Mathias Albert, Anthony Lang Jr. (eds.), The Politics of International Political Theory: Reflections on the Works of Chris Brown (Palgrave, 2019, 87–116), or The Justification of War and International Order. From Past to Present (Oxford University Press, 2021, co-editor with Hendrik Simon).

A Dangerous Responsibility: Towards a New Authoritarian Interventionism? Mischa Hansel and Alexander Reichwein

Abstract In this chapter, reflecting on some instances of “humanitarian” interventions, we explain why the R2P might be attractive for authoritarian states as an instrument in order to legitimize their military engagements abroad. As a starting point, we question the idea of a natural alliance between Western liberalism and humanitarian rhetoric on both theoretical and historical grounds. Rather, there is a true ambivalence of humanitarian norms as such, as they seem to support and legitimize both authoritarian and liberal ideas. Following this, we theorize how the R2P can serve authoritarian states’ domestic power consolidation and identity formation as well as their security and geopolitical interests. Finally, we plausibilize our argument by focussing on Russia’s, Saudi Arabia’s and Turkey’s interventions abroad.

1 Introduction 1 More than 15 years after its endorsement by heads of states at the U.N. World Summit (Bannon 2006; Weiss, 2006), the status and meaning of the Responsibility to Protect (R2P) as a norm in international politics remain disputed within the U.N. framework. We identify certain debates around the R2P. The first debate centers on the 1 We like to thank the participants of our EWIS Workshop Rethinking Responsibility. Military Humanitarianism beyond Western States in Tübingen in 2016 for contributing, the discussion of our paper (in particular Jonas Spitra) and very helpful comments. Moreover, Lisbeth Zimmermann, Antje Vetterlein, Regina Heller, Helmut Breitmeier, Falk Ostermann and Benjamin Wilhelm for their constructive feedbacks at EISA, ISA, ECPR and DVPW Conference Panels and at the Giessen Graduate Centre Colloquium at the Justus-Liebig-University in 2017 und 2018 where we did present

M. Hansel Institute for Peace Research and Security Policy at the University of Hamburg (IFSH), Hamburg, Germany e-mail: [email protected] A. Reichwein (B) Department of Political Science, Justus-Liebig-University Giessen, Giessen, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2023 A. Reichwein and M. Hansel (eds.), Rethinking the Responsibility to Protect, Contributions to International Relations, https://doi.org/10.1007/978-3-031-27412-1_10

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R2P’s applicability to a range of situations, implementation challenges with regard to the three pillars (state sovereignty and responsibility, shared state sovereignty by invitation, responsibility of the international community) and responsibilities (to prevent, to react, to rebuild), and questions of legitimate authorization (Deng et al., 1996; Thakur, 2006a; Welsh & Band, 2011). Scholars and practitioners also struggled with categorizations, i.e. whether or not the R2P has to be regarded as an emerging norm or mere political rhetoric (Stahn, 2007). A second debate is fundamentally about the legitimacy and credibility of the R2P. Whereas critical voices characterize the R2P as a Western hegemonic, imperialist (Chimni, 2013) or paternalistic (Cunliffe, 2011b) project and a mere cover for illegitimate Western policies of regime change,2 others defend the R2P as an essentially cosmopolitan and universalist concept that is not reducible to power politics (Bellamy, 2015; O’Hagan, 2015). Unsurprisingly, NATO’s controversial military intervention in Libya 20113 as well as its non-intervention in Syria (Brock, 2013; Deitelhoff, 2013; Morris, 2013; Thakur, 2013) reinforce the view of R2P critics who continue to see the R2P as an encroachment on the sovereignty of the weak and as a principle that is selectively applied by powerful Western liberal states as a tool to pursue strategic, economic, or ideological interests. A third and ongoing debate is about norm contestation and its various consequences (Arcudi, 2016, 2019; Deitelhoff & Zimmermann, 2020; Hofmann, 2019). At the same time, however, we observe a puzzling tendency among some nonWestern and authoritarian states to couch their own military interventions in a humanitarian language. This brings us to the need to focus on another problematic aspect of the R2P and minority protection, the protection of the members of a community of faith, and counterterrorism abroad. Puzzling, because it puts the constructivist and democratic peace-inspired thesis in IR norm research about the liberal Western democracy-R2P/human rights protection-nexus somewhat into question. Thus, the need to protect national minorities, however implausible, was brought forward by Russia before and after its interventions in Georgia in 2008 (Allison, 2008; Matveeva, 2013; Mouritzen & Wivel, 2012b, 2012c), in the Crimea and in Eastern Ukraine before (Shapovalova, 2011) and after 2014 and, again, in 2022, alongside regional security and geopolitical issues (Götz, 2015; Mouritzen & Wivel, 2012d). In a similar vein, Russia is justifying its intervention in Syria as an “invited intervention”, and as an effort to protect the Syrian people against barbarian forces, labeling essentially every non-ally of the Assad regime as a terrorist organization (Allison, 2013; Menkiszak, 2013; Trenin, 2012). Saudi Arabia’s intervention in the civil war in different versions of the chapter. Finally, Sten Rynning and the IR colloquium at the SDU Odense where I did present the paper in March 2019. And Hannah Pfeiffer for her feedback in a panel on interventionism at the EISAPEC 2021. This chapter is the translated and revised version of our chapter A dangerous responsibility: Auf dem Weg zu einem neuen autoritären Interventionismus? published with LIT (Hansel & Reichwein, 2020). 2 Chandler (2011, 2004), Cunliffe (2011a), Hehir (2013b), McCormack (2010), Regler (2015), Reinold (2014), and Santos Pereira (2011). 3 Bellamy and Williams (2011), Dembinski and Reinold (2011), Doyle (2016), Hehir (2013a), Hehir and Murray (2013), Morris (2013), Thakur (2013), and Western (2020).

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Yemen on the part of the Sunnis seems to be another case of a what we call new “military humanitarianism” by authoritarian states, given that Saudi Arabian policymakers, military staff, and diplomats justify their country’s military engagement by references to humanitarian reasons. A note on concepts and definitions might be required at this point. By categorizing these interventions as instances of “military humanitarianism”, we do of course not assume humanitarian motives on the part of Russian, or Saudi Arabian, or any other authoritarian decision-makers. Neither do we suggest that these actions in effect contribute to humanitarian goals, given that in so many ways these interventions actually violate basic human rights and cause wide-spread suffering among civilians. Our definition of “humanitarian” interventions or “military humanitarianism” is solely based on the way military force is legitimized in these cases by the actors involved. It is also worth reminding that the coupling of authoritarian interventionism with explicit humanitarian reasoning is not a new but recurring phenomenon: As shown in the chapter, the history of humanitarian interventions (Heraclides & Dialla, 2015a; Simms & Trim, 2011; Simpson, 2004) outside the U.N. framework, but also within that framework under the R2P flag, shows that non-democratic European states in the nineteenth century as well as non-Western authoritarian states during the Cold War did intervene in other states with the declared aim to protect nationals and strangers, or ethnic, religious, and cultural minorities. That being said, we argue that since Russia’s intervention in Georgia in 2008, in the course of what IR theorists call a power shift or power transition in world politics (Mouritzen & Wivel, 2012d; Rauch & Wurm, 2013; Brock in this volume), cases of authoritarian humanitarian interventionism tend to proliferate. Against the background of authoritarian interventions, the following questions are to be posed: How and why is it that we think that regime type matters that way that only liberal Western democracies intervene abroad in the name of human rights? Why do we think that only the U.S. and the European or other Western states are R2P norm entrepreneurs? These instances are counterintuitive. In other words: Why is it that we are not aware of the fact that norms such as protecting people from mass atrocities might also be attractive for authoritarian states in order to legitimate interventions abroad? Given the fact that after BREXIT, the empowerment of the Trump administration, populism and anti-EU-movements within the EU member states and Russia’s war in the Ukraine, the liberal world order is in its deepest crisis ever, and that emerging old and new global and regional powers such as China, Russia, Turkey, Saudi Arabia or India, and a global power shift are challenging Western ideas and models in international politics, it is not surprising that Western liberal democracies are no longer in the position to claim the sole representation of human rights protection or the role of being solely responsible for protecting people and minorities.

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1.1 Regime Type and R2P The literature on R2P, however, has remained rather silent on these developments so far. Those who defend the R2P’s liberal credentials4 do not sufficiently take into account the possible counterargument of authoritarian interventionism. An exception is Kurtz and Rotmann’s edited volume about the R2P discourse of major powers (Kurtz & Rotmann, 2016). In that volume, Russian references to the R2P are not simply reduced to a cynical cover for geostrategic interests. Rather, the ‘[…]parodic appropriation of normative language […]’ is said to have a ‘[…] destabilizing impact, and thus plays a role in the contested evolution of global norms […]’ (Burai, 2016: 67). Also, Russian foreign policy discourse is characterized as deliberate ‘[…] form of resistance to the perceived liberal hegemony of the West […]’ (Kurowska, 2014: 489). We will come back to such parodies or counter-hegemonic discourses. What is missing from these early accounts of humanitarian authoritarian interventionism, however, and what we want to bring to the table is a better understanding of the conceptual and historical relationship between regime type and norms. In other words: We want to put the assumed liberal Western democracy-R2P nexus into question, and show that regime type does not reliably predict the way in which states refer to humanitarian norms.

1.2 A Dangerous Responsibility: Minority Protection This chapter, in a nutshell, is about the dangerous liaison between minority protection by authoritarian kin-states and the R2P (see Aurescu 2011; Vesselin/Turner 2011), in particular the first pillar which defines a primary responsibility of the state to protect, and which defines state sovereignty as a precondition to protect human rights (Deng et al., 1996), leading to a new “humanitarian militarism” in the name of saving ethnic, cultural or religious groups. In other words: It is about human rights becoming vehicles for states to use force, to intervene, and to wage war. It deals with authoritarian states using the R2P as a window of opportunity to legitimate and justify interventions abroad. What does this mean? One of the core problems with the Responsibility to Protect is that states can misuse norms of human rights protection. The debate about a so-called “hegemonic project” of Western democracies to establish a liberal world order (and, at the same time, to pursue strategic and economic interests in different parts of the world) through so-called “humanitarian” interventions, which evolved in the aftermath of NATO’s intervention in Libya, is a case in point. But, as already mentioned above, we can also observe a new trend that some non-Western and authoritarian states couching their military interventions in a humanitarian language, and invoking humanitarian principles to protect nationals, or ethnic minorities belonging to the state, or members 4

Bellamy (2011, 2009), Fiott and Koops (2015), Gallagher and Brown (2016), Glanville (2014), Hehir (2012), and Knight and Egerton (2012).

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of a community of faith abroad. Given the reemergence or recurrence of nationalism, secession movements, and sectarian ideologies, and the existence of vulnerable populations particularly in various world regions, it is hard to argue against a necessity of any kind of minority protection, even more in the course of civil wars leading to ethnic cleansing, war crimes and crimes against humanity. Recalling the sufferings of Jews in Europe in the nineteenth and their annihilation at the beginning of the twentieth century, the destiny of the Armenians, Christians, and Jews in the Ottoman Empire in the nineteenth century, the situation of the Kurds and Christians in the Middle East until today, or of the Muslims in Bosnia in the 1990s, or in Burma today, there is an ongoing political and academic debate in IR whether minority protection should become an issue, or even the priority, of the R2P, or, given the practice of authoritarian states, whether it already is a priority (Defeis, 2011; Kuwali & Alfredsson, 2014; Varennes, 2013). To be clear: In the chapter, we neither argue against the R2P nor against minority protection per se. Rather, we defend both, arguing that the latter under the R2P umbrella is a dangerous responsibility in a twofold sense. “Saving strangers” (Wheeler, 2000a) was, or still is, the way Western liberal democracies use(d) to legitimate, or justify, interventions in the name of human rights protection since the end of the Cold War. Protecting national, ethnic, or religious minorities seems to be a new pattern of legitimization used primarily by non-Western authoritarian states who pretend to protect national minorities against alleged war crimes abroad, but in fact pursue at the same time other goals such as regional security, geopolitics, or irredentism in the proximate neighborhood.

1.3 Different Models of Norm Evolution In a broader context, the chapter contributes to the discussion in IR norm research about complex models of norm evolution and contestation from various theoretical perspectives and thereby aims to enrich the debate about what the R2P is, and what it ought to be, and to move forward the debate about its political relevance and legitimacy. By putting established models of linear (norm cascade) or circular (norm spiral) norm progression, and the teleological assumptions behind such linear/circular models (Brock, 1999; Forschungsgruppe Menschenrechte, 1998; Risse et al., 1999) into question, and by leaving the thesis about norm evolution through domestic or international processes of norm contestation leading to norm robustness and norm promotion behind5 (a thesis which has greatly improved our understanding of the complexity of norm evolution both in international and transnational settings; see Peltner & Brühl and Hofmann in this volume), the chapter goes one step further: It rather argues that there is more than one way to theorize about the mechanisms of 5

Bloomfield (2017), Deitelhoff (2013), Deitelhoff and Zimmermann (2020), Hofmann (2019, and the chapter in this volume), Lantis and Wunderlich (2014), Müller and Wunderlich (2018), Welsh (2013), and Wiener (2008, 2014).

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norm evolution through norm contestation, and the complex relationship between R2P and other norms, principles, and concepts that matter in international politics. One example of non-linear—and sometimes paradoxical—norm evolution trajectories is the observable increase of problematic references to the R2P by authoritarian states. This can be discussed from within the constructivist tradition and from other, normative and/or rational choice perspectives in IR and in political theory. In doing so, we can identify numerous ways in which the R2P is challenged or confirmed, oftentimes both. The chapter aims to contribute some ideas in this regard. It is organized as follows. We start by telling a short history about “humanitarian” interventions by authoritarian states since the nineteenth century (2). Following this, we argue that contemporary theoretical assumptions of a nexus between democracy and liberal peace on the one hand, and the R2P on the other are unsustainable for a number of conceptional and empirical reasons, and that there are many good reasons to theorize authoritarian R2P interventions (3). Finally, we present three examples—the Russian, Saudi Arabian, and Turkish cases of authoritarian interventionism—that rely on “humanitarian” reasoning as legitimization strategy, claim to pursue minority protection goals, and implicitly or explicitly refer to the R2P (4). We conclude with an outline of possible future scenarios of norm evolution with respect to the R2P (5).

2 A Short History of “Humanitarian” Interventions Authoritarian interventionism that uses the language of humanitarian ideas is not a new but recurrent phenomenon: The long history of humanitarian interventions outside and within the U.N. framework reveals many instances where non-democratic European as well as non-Western authoritarian states took the opportunity to intervene in other states because of threats (real or imagined) against ethnic and religious minorities (Finnemore, 2003: 52–84; Trim & Simms, 2011: 18, 21). It is also well documented that those intervening states did justify their interventions with a “right” and “duty to protect” (Simms & Trim, 2011: 397). Even efforts by the Roman Empire to protect Roman citizens beyond borders (Hilpold, 2013), or interventions to protect foreign vulnerable population from the tyranny of the absolutistic Sovereign in early Modern Europe (Trim, 2011) might be qualified as precursors of the later idea of a Responsibility to Protect.

2.1 Interventions in the Nineteenth Century: Protecting Christians in the Ottoman Empire The first “high noon of intervention” (Trim & Simms, 2011: 21) happened during the nineteenth century in the Middle East. Instead of religious norms that used to

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be salient before, humanitarian reasoning more and more became an acceptable justification for waging war to protect civilians. Despite the legalization of the principle of sovereignty of all European states at the Vienna Congress in 1815 (Ikenberry, 2001; Jackson, 1995), interventions by the Holy Alliance (Prussia, Russia, HabsburgAustria & Hungary) in the Ottoman Empire to protect Christian and Jewish minorities, justified by ‘humanitarian reasons and the necessity of preventive measures’ (Trim & Simms, 2011: 19) and by “liberty”, “civilisation”, “humanity/human rights” (Trim & Simms, 2011: 21, 24), became a recurrent behavioral pattern. “Human rights” emerged as a political term and legal concept (Trim & Simms, 2011: 22). And a “humanitarian public” and “humanitarian lobby” in Europe were gradually established (Trim & Simms, 2011: 22; see also Swatek-Evenstein, 2008a), causing the rise of humanitarian sensibility and the emergence of humanitarianism (Klose, 2021a). As a case in point, the Holy Alliance did intervene several times in Greece between 1822 and 1830 with the declared aim to protect the Greek Christian population against slavery, displacement, and ethnic cleansing by troops of the Ottoman Empire and Egypt on the island of Chios and at other places in the Aegean. Thus, the Holy Alliance managed to appear as the “humanitarian” protector of Greece, even though Russia in particular was quite obviously interested in balancing the power of the Ottoman Empire. Two other examples of non-democratic “humanitarian” interventions, in fact, aiming to balance the Empire or pursuing imperial ends (Klose, 2021b), are the military actions by France under the House of Bourbon in Lebanon and Syria in 1860/1861, allegedly to protect Christian Maronites against violent Muslim and Druze communities (Finnemore, 2003: 60–62; Rodogno, 2011; Swatek-Evenstein, 2008b), and Russia’s intervention against the Ottoman Empire in Bosnia between 1875 and 1877 to protect the Orthodox Christian population (Heraclides & Dialla, 2015b; Schulz, 2011; Swatek-Evenstein, 2008c).

2.2 “Humanitarian” Interventions During the Cold War During the Cold War, non-Western humanitarian interventions did occur, although only in a few cases. Democratic India pretended to intervene in Eastern Pakistan to save Hindu civilians from the military campaign of West-Pakistani troops. As a result, a new state becoming an ally of India, Bangladesh, was founded (Franck & Rodley, 1973; Wheeler, 2000d). Vietnam claimed to intervene in Kampuchea (today’s Cambodia) in 1978/1979 to protect the Vietnamese population in the border areas as well as the Cambodian population against terror and genocide committed by dictator Pol Pot and his totalitarian regime. When Vietnamese troops arrived in the capital Phnom Penh, more than 1,8 million people had been killed by the troops of the Khmer Rouge in the”Killing Fields”. Vietnam did refer to humanitarian principles in addition to the U.N. Charter and its right of self-defense according to Article 51. Yet although there is no doubt that Vietnam’s intervention stopped genocide and prevented further atrocities (Trim & Simms, 2011: 17), the Vietnamese government

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faced accusations by the U.S. and other Western states that it was driven by geopolitical and strategic interests of expansionism and regional hegemony (Denduangrudee, 2011: 159; Quinn-Judge, 2011: 343; Wheeler, 2000b). A very interesting but almost unknown case of humanitarian intervention in Africa is Tanzania’s intervention in Uganda in 1978/1979 against the terror regime of Dictator Idi Amin that was responsible for mass atrocities and the killing of more than 300.000 people. Like in the Vietnamese case, Tanzania was accused to pursue strategic interests of regional hegemony in East Africa rather than following humanitarian principles (Teson, 2005b; Wheeler, 2000c). A final possible candidate for authoritarian humanitarian interventionism during the Cold War is Syria, whose military engagement in Lebanon’s civil war since 1975 has been justified as a response to pleas for assistance from Muslim communities within the neighboring country (Castellino, 2011). The second “high noon of intervention” was the era between 1990 and 2003. After the end of the Cold War, a series of ethnic conflicts did erupt, leading to violence, mass atrocities, and civil wars between different ethnic or religious groups within rupturing or failing states (Brock et al., 2011; Kaldor, 1999). This period those days was marked by liberal interventionism within the U.N. framework (Desch, 2007; Jamison, 2011; Tezon, 2005a), but sometimes without a Security Council authorization, as in the Kosovo case (Wheeler, 2000e; Wheeler & Owen, 2007): The R2P was born in an era when assertive liberalism was at its height, and sovereign equality looked and smelled reactionary. But as the liberal moment recedes, and the distribution of power shifts globally, the principle of sovereign equality may enjoy a comeback. (Jennifer Welsh, cited according to Morris, 2013: 1279)

2.3 A Dangerous Responsibility: Protecting Minorities under the R2P Umbrella In this chapter, we argue that the problem with humanitarian interventions and, since the World Summit in 2005, the R2P is not only that many actors within the Global South perceive both as old wine in new bottles, and still a Western liberal project, and do mistrust Western reasoning for interventions (Cunliffe, 2011b; Reinold, 2014; Thakur, 2006b). The problem rather is that both, Western democratic and non-Western and non-democratic states, can misuse humanitarian interventions and the R2P for their own geopolitical or irredentist agenda. This happens against the background of an eroding U.N. prerogative when it comes to legitimate violence. Recall that the aim of the U.N. is to prevent all kinds of individual use of force and violence, and that there are just two exceptions to this: collective measures by the international community with a mandate from the Security Council according to Chapter VII in order to restore peace and security in international affairs (Article 39– 42), and self-defense (Article 51), including the help of foreign governments. Many IR scholars discuss the problem of cases when the U.N. Security Council is blocked because of the veto of at least one of its five permanent member states (P5), and intervening state(s) therefore chose to act without a U.N. mandate but with references to

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allegedly “higher” moral reasons, that is to prevent or end human suffering, mass atrocities, or genocide (Teson, 2005a). According to Brock (1999), there is a gap between the ongoing codification of human rights on the one hand, and stagnating U.N. procedures of decision-making on the other. As a consequence, a norm conflict between using force as an ultima ratio to protect human rights versus not using force in order to act in line with the U.N. Charter emerges in many cases. The very plausibility of this norm conflict opens the possibility of systematic norm erosion or norm abuse (Panke & Petersohn, 2011; Rosert & Schirmbeck, 2007) when states repeatedly violate a norm (using force) in order to implement the other norm (human rights protection). The protection of human rights, ethnic or cultural minorities, or members of a community of faith thereby risks becoming a kind of legitimization (Ermächtigungsnorm) for the unilateral use of force by individual, liberal Western democracies as well as non-Western authoritarian states (or a coalition of the willing) without U.N. mandate (see Brock, 2005)—in the name and in service of irredentism, geopolitical motives, or seeking for hegemony and new regional security order. There is something almost unavoidable about this dilemma, as numerous interventions can be justified by humanitarian reasoning because of political ambiguities that make it almost impossible to disentangle strategic opportunities from moral necessities (Brock, 2013). As Trim (2011: 400/401) concludes: Not only do national security and humanitarian concerns often go hand-in-hand. Motives behind humanitarian interventions are almost invariably mixed. In sum, […] the perceived dichotomy between Realpolitik and humanitarian concerns has frequently been a false one. Statesmen have rarely had to choose between acting ethically or morally, to promote human rights, and acting sensibly, in the national interest. Very often these are the same option – more, sometimes one is not possible without the other.

What strikes us is the fact that in the IR literature on the R2P, the problem of norm erosion or abuse (which also implies cases of non-intervention when conditions would require us to take actions) is treated in a rather non-systematic fashion. While problematic interventions of Western states (Kosovo 1999, Iraq 2003, Libya 2011) are discussed exhaustively, non-Western military engagements have received scant attention. One reason for this focus on Western interventionism simply might be that after 1990 and up until 2008, military interventions were rarely conducted by non-NATO member states. Another reason might be the above-mentioned supposed Western democracy-R2P-nexus. But, as Trim and Simms (2011: 23) conclude in view of India’s intervention in East Pakistan/Bangladesh, Vietnam in Cambodia, and Tanzania in Uganda: ‘By the late twentieth century, the concept of humanitarian intervention was no longer a solely “Western” one’. Against the commonly shared expectations in IR that the increased weight of “non-Western” powers would lead to the demise of humanitarian norms, the concern for atrocity prevention has become universal. The Non-western democratic and authoritarian states from the Global South argue with a duty to protect human, minority and religious rights, too. Again: Given the reemergence of violent sectarian ideologies particularly in the Middle East, it would of course be difficult to argue against the necessity of any kind of minority protection. Some authors demand that the protection of minorities should indeed become the priority of R2P implementation and institutionalization

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(Varennes, 2013: 222/223). We argue that this is like opening Pandora’s Box, leading to a third high noon of interventionism because also self-declared kin-states (Kemp et al., 2011; Vesselin/Turner 2011) who pretend to protect their minorities would be beneficiaries of ill-designed policies in this regard. Most important, the concept of minority and its relationship to external powers is crucial. As the brief case studies in part four of the chapter should demonstrate and illustrate, protecting their own ethnic and religious minorities seems to be a new pattern of legitimization used by authoritarian states in order to justify military violence. In the next step, we first want to theorize about this new authoritarian interventionism, and show, among other things, that regime type does not determine the way in which states refer to humanitarian norms, and that there is a peculiar relationship between minority protection and authoritarian rule.

3 Authoritarian States and the R2P—Why Not? How and why is it that we think that only liberal Western democracies intervene in the name of human rights? Why do we think that only the U.S. and the European or other Western states are norm entrepreneurs, and face the challenges of norm evolution, norm contestation, or norm erosion, and norm abuse? Why is it that we are not aware of the fact that norms such as protecting people as vulnerable minorities from mass atrocities can, under certain conditions, also be attractive for authoritarian states? The aim of our chapter is not to demonstrate a particular inclination of authoritarian states to “humanitarian” interventions. Rather we question standard accounts in IR literature of why authoritarian states would not support coercive humanitarianism in principle. We substantiate our argument empirically by focusing on newer cases in which authoritarian states actually invoked humanitarian reasons as justification for military interventions in other states. These instances are counterintuitive, and they defy those who subsume humanitarian interventions under a so-called Liberal Peace, a formula for reducing inter- and intrastate violence that rest on the spread of liberal democratic values and market forces (Santos Pereira, 2011; Kersten, 2011; for a critique, see Chandler, 2004). That—democratic—regime type matters also seems to us to be at least a tacit assumption in many specific works on the global implementation, diffusion and application of the Responsibility to Protect. More specifically, authoritarian states—on average—should be more worried about conditional understandings of sovereignty and about granting the international community a right to intervene in a state’s domestic affairs (Regler, 2015: 231/232). In fact, the most uncompromising opposition against R2P came from countries such as Cuba, Iran, Belarus, and North Korea. The same kind of countries also tended to issue the strongest defenses of traditional notions of sovereignty and the principle of non-intervention in internal affairs. However, on closer inspection, the empirical record is much more ambivalent: Not only that authoritarian states eventually endorsed the R2P at the 2005 U.N. World Summit and supported the 2009 report of the U.N. Secretary General in the General

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Assembly. Authoritarian states also played an active part in the debates on the R2P. We also observe that since 1990, China, in its responsibility as a permanent member of the U.N. Security Council, has authorized a considerable number of coercive measures against other states under U.N. Chapter VII (Chen, 2009; Cheng & Shi, 2011; Wu, 20106 ). Humanitarian crises figured prominently in the respective U.N. Security Council resolutions, and they were characterized as threats to international peace and security, requiring international interference, by all U.N. Security Council members. While the behavior of authoritarian states within the U.N. might still be explained by institutional constraints and negotiation dynamics as well as by some limited socializing effects, unilateral invocations of the R2P and other sovereigntyencroaching humanitarian norms by authoritarian powers would be more difficult to reconcile with conventional IR theory liberal and constructivist readings of norm diffusion processes and democratic regime type. Later we will analyze in more detail Russia’s justifications for unilateral military campaigns in Georgia and Ukraine. In both cases, military actions were framed as humanitarian necessity despite the risk of setting precedents and contributing to changes in customary law. Against the backdrop of these observations, we might ask ourselves why democratic states should feel more comfortable with R2P than non-democratic states? Put differently, what exactly made us think in the first place that non-democratic states should be less inclined to the rhetorical support and coercive application of the R2P? And why should they be less afraid of the use or misuse of the R2P by other states? Why should authoritarian states not refer to the R2P? In the following five paragraphs, we point to a number of arguments in this regard. Each of them initially appears to reinforce liberal and constructivist theoretical arguments. But, on a closer second look, each runs into difficulties and ambivalences once we take into account its wider implications and consider additional evidences.

3.1 The Cultural Politics of the R2P First, it is undeniable that democratic states, more often than non-democratic states, have come out in support of the R2P on various occasions. Regime type, thus, seems to have considerable predictive power when it comes to categorizing norm entrepreneurs (Wunderlich, 2014, 2018, 2022), R2P-advocates, etc. Yet, simple correlations of democratic regime type and support of R2P omit two crucial variables: structural power and the experience of colonial rule in the past. If democracy is positively associated with more stability, extensive trade relationships, and welfare, higher gross domestic products, and bigger defense budgets as well as technological and military supremacy, rationalists would not be surprised to see democratic states less concerned about new ways and means such as R2P to legitimize military interventions. For they

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For China and the R2P, see also Polle in this volume, and Regler who locates China’s position towards R2P between openness and scepticism (2015).

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can be quite sure they will not end up on the receiving side of any kind of intervention (see Schörnig, 2013; Sauer & Schörnig, 2012). Perhaps much more telling, many societies that suffered from Western colonial rule in the past fear any encroachment of their sovereignty, no matter for what reason. They are deeply concerned about any attempts to qualify the principle of sovereign equality in the name of Western understandings of “good governance”, “human rights”, or “humanitarian help”. Respective Western policy agendas (Geis et al., 2013) are accused of being just a cover for the re-establishment of imperial standards of civilization and, hence, a new hierarchical international order (Mallavarapu, 2015). Most importantly, both authoritarian and democratic post-colonial societies have made these accusations (Jabri, 2014). India is a prime example of the latter category (Hansel & Möller, 2015; Khandekar, 2015; Krause, 2015). The simple fact that there are more authoritarian than democratic post-colonial societies clouds the possibility that it might not be regime type, but historical memory and vulnerability that causes suspicion via-á-vis Western liberal humanitarian agendas, including the R2P. Thus, the “cultural politics of R2P” (O’Hagan, 2015: 291) needs to be taken seriously when discussing and theorizing authoritarian states and the R2P.

3.2 R2P as a Functional Tool Second, it is true that many authoritarian states with respect to international human rights regimes oftentimes obstruct the practical implementation of procedures and norms. Thus, if there is a consistent behavioral pattern across a whole regime complex, we might find it hard to believe that authoritarian governments would deviate from that pattern in the case of the R2P. However, this misses important differences: While human rights regimes potentially interfere with the day-to-day ruling techniques of authoritarianism, for example, the surveillance or imprisonment of political dissidents, the R2P only applies to a state of emergency, e.g. cases of extreme and massive human rights abuses. Since the R2P is only applicable to extraordinary situations such as genocide or ethnical cleansing, supporting the R2P does not create the same problems of non-compliance as in the case of human rights commitments such as the Declaration of Human Rights (1948). What is more, authoritarian states, despite general skepticism towards international human rights policies, occasionally also blamed Western democracies and their allies for alleged human rights violations, for example, when Russia offered asylum to Edward Snowden, or when Russia accuses the so-called “Ukrainian regime” of committing war crimes and ethnical cleansing against Russians in Eastern Ukraine or at the Crimea. Please note again that what matters here is the framing of events in Eastern Europe as humanitarian crisis, nothwithstanding the fact that no evidence supported these claims. Arab criticism of Israeli policies towards the Palestinians in the West Bank also comes to our mind. Or double standards in the relations between democracies and authoritarian states, such as the relations between the U.S. and Saudi Arabia, or Pakistan (Wurm, 2014). If authoritarian leaders did not shy away from

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exploiting (or fabricating) potential human rights violations of Western democracies in these cases, thereby implicitly reconfirming the universal applicability of human rights, why then should they refrain from using the R2P as a similar tool to uncover existing double standards in Western behavior weaken the credibility of democratic rivals and their allies?

3.3 Consolidation of Power and the Ambivalence of Genocide Research Third, one might reply that even though the R2P covers only a spectrum of gross human rights violations, none of them arguably being included in the standard toolbox of political repression in non-democratic regimes, authoritarian states, and societies nevertheless still face a higher probability than democratic regimes of creating circumstances where the threshold of genocide, ethnic cleansing and crimes against humanity has been crossed. Put differently, authoritarianism structurally increases the probability of large-scale human rights violations as a means to consolidate political power and autocratic rule. A corollary would be that authoritarian rulers should be more hesitant to strengthen the R2P, which one day could be applicated against these rulers, than democratic ones. The Achilles heel of this argument is the fact that contemporary scholarship on the causes of crimes and genocides is divided about the influence of regime type (Strauss, 2013: 96–98; Ungor, 2015: 41). Pointing to historical experiences of fascist and communist regimes in the twentieth century, some scholars identify high concentrations of political power as an enabling factor of genocidal violence in authoritarian states. Democratic checks and balances then appear as an antidote to such crimes. Other genocide scholars in turn disagree, emphasizing how democratic competition in the context of transformation processes can foster ethnic segmentation, and thus various patterns of conflict in multi-ethnical societies. Still others argue that the probability of genocide is highest during the transition from one form of governance to another when it comes to the distribution of political and economic power. In this view, changing political opportunity structures and the struggle for political power domestically rather than regime type as such explains the onset of genocidal violence. More recent cases of genocides and ethnic conflicts corroborate the latter argument. Both in the Balkans (Croatia, Bosnia, Serbia in the 1990s) and in Ruanda (1994), the regimes that committed genocide were in the midst of democratic transitions and made ethno-nationalist claims in the name of majoritarian rule (Strauss, 2013: 98).

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3.4 The Need for Output Legitimacy A fourth line of reasoning is less occupied with regime type specific risks in cases of military interventions but focuses on possible benefits of the R2P and mutually reinforcing variables. Some of these benefits primarily or exclusively apply to democratic states. For example, according to rationalistic theoretical considerations, humanitarian norms could facilitate diversionary actions, i.e. efforts to escape public crises just like in the famous Hollywood movie “Wag the Dog” about a U.S. intervention (in Kosovo 1999). From a constructivist perspective, humanitarian (and democratic) interventions are one avenue for externalizing liberal democratic domestic political norms and for enacting a socially constructed liberal identity (Risse-Kappen, 1995), and for getting public support, in particular in times of elections.7 Yet, the R2P arguably offers equal benefits to authoritarian political systems and rulers as well: but neither by neutralizing accountability procedures nor by externalizing political values. Rather, the very legitimacy needs of autocratic rule and governments might actually be well served by the “normative” R2P, or by using the R2P to save own jeopardized national minorities under fire abroad. Authoritarian rule, to summarize, lacks input legitimacy and, thus, necessitates output legitimacy. This is best served and guaranteed, and demonstrated by economic welfare, the provision of security, and successful military interventions abroad to protect people belonging to a state, society, or ethnical group.

3.5 Protecting People as Securitizing Act Finally, and with regard to the latter, the suspension of democratic procedures and individual rights is usually justified by governments by means of a state of emergency, and the need of responding to a security crisis, or threat either posed domestically by internal or by external actors. A state of emergency opens windows of opportunities for governmental actions, even within democracies. The National Security Strategy of the U.S. after 11/9 terror attacks (Monten, 2005) or Egypt post-2011 (Weipert-Fenner, 2015, 2020) are telling examples. Yet in authoritarian states, nondemocratic structures and policies can often only be legitimized if they appear as the better of two evils during times of existential threats. Otherwise, they cease to be justifiable domestically, and towards the international community. Now recall that at the bottom of the human security paradigm as well as the R2P, there is a utilitarian or consequentialist logic as well: Under the terms of R2P, legitimacy derives not from correspondence with and responsiveness to the political will of a particular national group, but from the effectiveness of protection offered by the state (Cunliffe 2014: 2).

7

For a critic of Democratic Wars, see Geis (2008) and Geis et al. (2006).

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Political values such as free speech or political participation rights clearly pale and become secondary in comparison with the existential safeguards of R2P. People should live free from fear, they should be guaranteed basic living conditions such as subsistence, and they should be safe from major threats to their physical lives. Only to make sure that these basic rights can be guaranteed, the violation and suspension of individual rights at the domestic level, or the principle of sovereign equality at the international level, is deemed justifiable. In other words: The applicability of the R2P in particular rests on a state’s and its government’s definition of exceptional circumstances such as mass atrocities. It is therefore not far-fetched to associate the invocation of R2P with securitizing moves and discursive securitization acts (Albert & Buzan, 2011; Wæver, 1995, 2011)—within Western liberal democracies (Aradau, 2004) and in authoritarian states (Fisher & Anderson, 2015). The rhetorical means used by states to declare a state of emergency could be very similar to the framing and story-telling of authoritarian legitimization strategies, e.g. launching a “war against terror” (Heller et al., 2012). Given that many authoritarian regimes such as Putin’s Russia have revisionist aims and play irredentist cards, pointing to deemed existential threats for national minorities, members of an ethnic group, or religious brothers and sisters at home and abroad in the near neighborhood, and invoking the R2P in order to justify interventions there could be very helpful to legitimize the extension of authoritarian rule across borders. Here, the dangerous liaison between the R2P, minority protection and revisionism or irredentism appears very obviously. As we will show in the next part, the establishment of Russian puppet regimes in South Ossetia and Crimea, Saudi Arabia’s intervention in the Yemenite civil war for regional hegemony, and Turkey’s war against the Kurds in the Syrian civil war, hidden goals behind the official “humanitarian” legitimization of “protecting people” illustrate our core argument that it is not necessarily regime type that matters when it comes to R2P rhetoric and policies, but strategies of how to maximize political power within the state and relative to other states very well.

4 The Practices of Authoritarian Interventions: Saving Our Own People 4.1 Russia at the Crimea: “Protecting Russians” According to our constitution there is also a responsibility to protect – the term which is widely used in the UN when people see some trouble in Africa or in any remote part of other regions. But this is not Africa to us, this is next door. This is our area, where Russian citizens live. So, the constitution of the Russian Federation … makes it absolutely unavoidable to us to exercise responsibility to protect. (Russia’s Secretary of State, Iwan Lawrow, BBC Interview 2008, cited according to Bellamy, 2015: 14)

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Russia and the R2P is a very peculiar case. At first glance, one might think that Russia, a strict defender of the principle of state sovereignty at least rhetorically and before 2022, is an opponent of the R2P, because, in the 1990s, it was a reliable opponent of the interventions of the West in the internal affairs of the Former Republic of Yugoslavia (Kuhrt, 2015). But, at second glance, Russia’s R2P policy is much more ambivalent and complex. Between 2001 and 2005, Russia did neither oppose the core idea of the Responsibility to Protect, nor proceedings and establishment of the R2P within the U.N., nor has it avoided referring to the R2P since its institutionalization after the World Summit in 2005 (Loges, 2013). Quite the contrary, the Russian government and Moscow’s diplomats played an active part in the debates on the R2P. They support the first pillar of the R2P according to paragraph 138 of the 2005 World Summit document, the primary state sovereignty and state responsibility for its Russian citizens inside and abroad (Ziegler, 2016: 438; see also Graef, 2020). And they were successful in introducing a particular understanding of the R2P as minority protection by powerful states in the proximate neighborhood. In this sense, Russia sees itself as the kinstate of Russians abroad (Shapovalova, 2011)—and as a regional security provider. Security issues and concerns and so-called “humanitarian” arguments go hand in hand. The Russian position essentially boils down to an irredentist version of conditional understandings of sovereignty. Yet in contrast to Western powers, these aberrations from absolute understandings of sovereignty are not always overtly displayed. Thus, Russia keeps presenting itself as a legalistic and pluralistic advocate and guardian of Westphalian notions of sovereignty and territorial integrity (Jackson, 1995). According to Russian diplomats, the responsibility to protect civilians lies primarily with the governments of the countries (plural!) concerned, and individual states, and national governments (and not with the U.N. collectively, as pillar three defines) are the key actors in R2P affairs: We favour the interpretation of the concept of the responsibility to protect in accordance with the final document of the 2005 summit (GA resolution 60/1), as a responsibility of each state to protect those individuals under its jurisdiction – protection from genocide, war crimes, ethnic cleansing and crimes against humanity. Moreover, it is the United Nations and the Security Council that bear the task of supporting those national efforts. (Russian Statement to the R2P, 27. May 2008, S/PV. 5998: 16, cited according to Loges, 2013: 313, accentuation by A.R./M.H.)

At the same time, however, and ambivalent, the Russian government is eager to stress the quasi-executive functions of the Security Council and the veto position of the P5 (Kuhrt, 2015; Concept of the Foreign Policy of the Russian Federation 2008). As one of the P5 members, Russia sees itself as a great power responsible for peace, security, and stability in its shared neighborhood, which means the Ukraine, Georgia, Moldavia, Belarus, the Caucasus, and the Baltic States (Mouritzen & Wivel, 2012c; Romanova & Pavlova, 2012). Therefore, Russia is avoiding (and opposing) any development that could minimize its power and influence within the U.N., and its voice opportunity in R2P issues such as its definition, implementation, and application of first pillar actions. Moreover, Russia is avoiding (and opposing) any politics

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that could limit its latitude and freedom of action. This is why Moscow is very skeptical concerning any institutionalized and binding character of the R2P norm, any obligatory commitment to intervene in ex ante defined cases. Quite the contrary, Russia underlines the fact that every single conflict has its own specifics, and therefore must be evaluated separately in a given historical/political context, and case by case. More important though, the Russian-styled commitment to sovereign equality and territorial integrity is not only constrained by great power responsibilities, but also by the existence of transnational cultural and ethnic ties. Thus, former President Dmitri Medvedev, already in 2006, warned that Protecting the lives and dignity of our citizens, wherever they may be, is an unquestionable foreign policy priority of our country […]. It should be clear to all that we will respond to any aggressive acts committed against us. (quoted according to Shapovalova, 2011: 170)

Putting words into action, three years after the World Summit, Russia did intervene in Georgia, and later in 2014 and 2022 in Ukraine. In 2008, Russian troops supported the pro-Russian militias in South Ossetia and Abkhazia, which both had been autonomous republics with a Russian majority and a close relation to Russia within the territory of Georgia, and which both are now still autonomous republics but de facto controlled by Russia. The intervention was justified by the government in terms of humanitarian reasons, namely to ‘[…] protect suffering Russian civilians […]’ (Medvedev, 2008). This chapter is not the place to reconstruct the war, and to speculate about the Georgian and Russia’s true motives (see Kuhrt, 2015; Mouritzen & Wivel, 2012a, 2012b, 2012c, 2012d). What is of higher importance is the Russian government’s justification (see Lawrow 1999) for the war as a necessary intervention to end ‘[…] a genocide against South Ossetians and to protect Russian civilians (many South Ossetians had Russian passports) […]’ (Kuhrt, 2015). Clearly, the language used by the Russian government and Russian diplomats resembled Western arguments to justify the bombing of Serbia in 1999. Even more striking, Russia explicitly cited the Kosovo precedent as the reason why the recognition of the independence of South Ossetia and Abkhazia in 2008 was legitimate (Allison, 2008; Kuhrt, 2015). In the case of Russia’s intervention in and its annexation of Crimea in February and March 2014, Russia’s President Vladimir Putin also referred to the Kosovo case in a twofold manner: According to the Kremlin, the intervention of Russian troops in the territory of Ukraine was necessary to prevent genocide against Russian people (see Coicaud, 2015: 172–174). Russia invoked its idea about the core of the R2P, namely preventive humanitarian intervention in order to protect Russian minorities abroad and citizens from discrimination, crimes and punishment: If we see such uncontrolled crime spreading to the eastern regions of the country [Ukraine], and if the people ask us for help, while we already have the official request from the legitimate president, we retain the right to use all available means to protect those people … with whom we have close historical, cultural and economic ties. (President Vladimir Putin in a press conference at 4 March 2014, quoted according to Coicaud, 2015: 173–174)

Moscow underlined the necessity and right of secession and independence of the “Russian” Crimea from the Ukraine with regard to Kosovo’s separation from Serbia

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in 2007 (Kuhrt, 2015). Defending the absorption of the Crimean in his Address to the State Duma on 18 March 2014, Putin explained: Moreover, the Crimean authorities referred to the well-known Kosovo precedent – a precedent our Western colleagues created with their own hands in a very similar situation, when they agreed that the unilateral separation of Kosovo from Serbia, exactly what Crimea is now doing, was legitimate and did not require any permission from the country’s central authorities. (Vladimir Putin, quoted according to Coicaud, 2015: 174)

To sum up: Russia uses humanitarian language, referring indirectly and explicitly to the R2P and explicitly and directly to the Kosovo precedent, in order to get legitimacy and to justify military interventions abroad. Interventions also can be seen as an instrument for the politics of identity and irredentism, or just power politics in the name of strategic and geopolitical motives (Götz & Staun, 2022; Götz, 2015). Russia’s expropriation of the R2P language and idea can be interpreted as a way in which Russia holds up a mirror to the Western humanitarian interventionism in Kosovo (Burai, 2016). But it can also be interpreted as a new, revisionist, reckless, Russian-styled authoritarian interventionism in a humanitarian robe—as the 2022 intervention and ongoing war demonstrates.

4.2 Saudi Arabia’s Intervention in Yemen: Protecting the Community of Faith Many of the destabilizing events and violent crises in the Middle East—the conflict about Iran’s nuclear weapons, the never-ending Syria civil war, the rise of the so-called “Islamic State”, state failure and violent factions in Yemen—have been explained partly as the result of the strategic competition between two antagonistic regional powers both claiming for regional hegemony, namely Saudi Arabia and Iran (see Reuters 2015). This is not to say that both powers resort to the same kind of strategies. At least two differences stand out: While Iran builds up and exploits political alliances with various state and Shiitic non-state actors such as Hizbullah, and provides weapons and financial resources, Sunni Saudi Arabia does not solely use proxies but at least in two cases intervened directly in other countries, both times without a U.N. mandate: Bahrain 2011 and Yemen since 2015. Another difference has not captured scholarly attention so far (with the exception of Buys & GarwoodGowers, 2019): While Iran keeps issuing deep reservations if not outright hostile rhetoric vis-á-vis the R2P,8 Saudi Arabia apparently shifted to a proactive rhetorical endorsement of the norm, and to a humanitarian language, in order to justify its policies towards Yemen (Buys & Garwood-Gowers, 2019; Wan Rosli, 2022). In a joint declaration GCC Issues Statement on Yemen of the Sunni Arab coalition including Qatar, Kuwait, Bahrain, Sudan, Pakistan, or Egypt, led by Saudi Arabia, dated 26 March 2015, which was a reaction to former Yemeni Sunni President Abdu 8

See also Tuckwell and Smyth (2015), Darwich (2018), and Sharp (2018).

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Rabu Mansour Hadi’s distress call by means of an open letter dated from March 24 (The Embassy of the United Kingdom Saudi Arabia, 2015), the responsibility of all states for the protection of Yemenite population and the elected and internationally acknowledged Hadi is stressed. The wording “protection”, “protect Yemen” and “protection of the Yemeni people” is used several times. According to the declaration, which refers to a U.N. chapter VII. language, aggressive Iran is a threat to international security and peace, and to regional stability. This, according to Riad, is why ‘[…] our nations have decided to respond to the request of President Hadi to protect Yemenand its dear people […]’ (The Embassy of the United Kingdom Saudi Arabia, 2015), and why the coalition took the Yemenite government’s invitation to intervene (see also Arab News, 2015) seriously in order to help the “fraternal people of Yemen” (The Embassy of the United Kingdom Saudi Arabia, 2015) against the Shiite Houthi militia supported by Iran (see also Buys & Garwood-Gowers, 2019: 10–11). Thus, in April 2015, Brigadier General Ahmad Al-Asiri, spokesman for the Sunni Saudi-led Arab coalition coordinating airstrikes in Yemen, declared the coalition’s intent ‘[…] to make sure that those [the Houthi] militia do not have capabilities to harm the population […]’ (Zavis, 2015). Alluding to the R2P’s notion of subsidiary and complementary responsibilities, he went on to say that ‘[…] Mansour has the responsibility to protect Yemen and the population against these militias, and he called for help […]’ (Zavis, 2015). Reading Al-Asiri’s speech, it becomes quite obvious that the coalitions’ priorities are mixed, and that the motives to intervene are various: human rights protection, the security of the Yemeni people and the neighboring countries, including Saudi Arabia and its borders (see Zavis, 2015). Nevertheless, Saudi Arabia’s intervention was supported by the U.S.: ‘The White House has said the United States will provide logistical and intelligence support to the coalition’s military operations’ (Weizmann, 2015; see also Moses, 2015). In a similar vein, Saudi Arabia’s ambassador in the United States, Adel al-Jubeir, told the American TV channel CBS that ‘[…] this is a war to protect the people of Yemen and defend its legitimate government […]’ (quoted according to Tuckwell & Smyth, 2015). After the first airborne “Operation Decisive Storm” (see Weizmann, 2015) ended on April 25, 2015, a follow-on operation, “Restoring Hope” (Shield, 2017), was announced and, again, justified by obvious references to the R2P (Buys & Garwood-Gowers, 2019). Again Al-Assiri, this time during an interview with an Arab News consultant of the Saudi Defence Ministry, counted the “protection of civilians” and “support and facilitation to the humanitarian relief” work as two of three main purposes of Operation Restoring Hope. Also, he included the ‘[…] safety of citizens and infrastructure including schools, hospitals, and government buildings […]’ and preventing the Houthi militia from harming civilians (the Yemeni people) as an important operational goal (Arab News, 2015; see also Vis, 2016). ‘All of the Yemen land must be a safety zone, and the Yemeni citizens must feel safe all over the Yemeni lands’ (Al-Asiri in Arab News, 2015). The R2P was a welcome “legitimising tool” (see Moses, 2015), and it enabled Riad to legitimize the intervention:

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The perceived appropriateness (and thus, legitimacy) of the military actions was bolstered by Saudi-Arabia’s humanitarian and R2P rhetoric, prompting perceptions that the operation aimed to avert the greater crime of human suffering despite being an unauthorised use of force (Buys & Garwood-Gowers, 2019: 27)

In sum, the case of Saudi Arabia and its intervention in Yemen resembles the Russian declaratory policies above, although irredentist elements are absent and the issue of kinship (with regard to the Sunni religious community and the government under President Hadi in the capital Sanaa) and rescuing Sunni fellow Christians against the numeric strong Shiitic Houthi insurgents who are lead by former Yemenite Shiitic President Ali Abdullah Salih, and supported by Iran, are less explicit. Nevertheless, despite the “R2P style-rhetoric” (Tuckwell & Smyth, 2015), the intervention of both Saudi Arabia and its allies, and Iran, into the civil war in Jemen is motivated by geostrategic motives and by regional aspirations of being a kin-state for the Shiitic or Sunni Muslims, and by seeking for regional control and hegemony in der Persian Gulf region—it is a kind of proxy war. Also, it is obvious in the case of Saudi Arabia that the “intervention on invitation” (Buys & Garwood-Gowers, 2019: 10–11) violated the principle of not doing more harm than good. In fact, there has been strong opposition in the U.N. and elsewhere to Saudi Arabia’s behavior on the ground that the intervention itself lead to an escalation of the war fighting in Yemen, “catastrophic humanitarian situation in Yemen” and huge numbers of civilian casualties (Moses, 2015). Human Rights Watch, for example, characterized at least some Saudi air strikes as being “in apparent violation of international humanitarian law” (quoted according to Tuckwell & Smyth, 2015; see also Moses, 2015; Weizmann, 2015). Interestingly, Saudi Arabia’s efforts to legitimize its intervention vis-a-vis the international community by using humanitarian language and by claiming to implement the R2P as a “Trojan horse” (Tuckwell & Smyth, 2015) did therefore not primarily fail because of its poor domestic human rights record and resultant accusations of hypocrisy. And it seems that the “cost-free cynical invocation and support” (Hehir & Moses, 2015) of the R2P by states such as Qatar, motivated only by seeking to control the region and opposition movements abroad (Hehir & Moses, 2015), is tacitly accepted within the international community. Rather, Saudi Arabia’s efforts to legitimize its intervention just failed because of political and operational decisions of the Saudi armed forces seemed to reveal a certain disregard for the suffering of the civilian population. And it failed because of the interests of other powers in the region. This is in line with our argument that regime type is not reliably predicting the use of references to the R2P, and that authoritarian states should not necessarily fear norms such as the R2P. Quite the contrary: Publicly avowing support for R2P is essentially cost-free – and appointing an “R2P Focal Point” imposes no actual obligations. […] The danger is that R2P ebables oppressive regimes such as Qatar to present themselves as “responsible” even as they participate in acts that “may amount to war crimes and crimes against humanity”. […] The case of Qatar illustrates that the strategy of cultivating state support for R2P has come at the cost of ignoring human rights abuses. (Hehir & Moses, 2015)

Moses calls for a ‘greater reflection on the potential dangers of the R2P in practice’ (2015). Given the Yemen case, and the impression that intervention was first and

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foremost driven by the strategic motive to restore the Sunni government than saving people, this is all the more necessary to do so. This notwithstanding, there might be a paradigm shift underway. Prior to Saudi Arabia’s affirmative use of the R2P, Arab states advocated its use only in the framework of U.N.-mandated actions, as for example in case of Libya 2011 (Bin Talal & Schwarz, 2013: 8–9), and occasionally on behalf of the Palestinian people. Now, the Saudi-led intervention, although implemented multilaterally and formally invited by the Yemen government, crossed the Rubicon towards marginalizing the U.N. and implementing the R2P through “coalitions of the willing” instead of a U.N. Security Council mandate. Leading Western liberal democracies did not accuse and condemn Saudi Arabia for the intervention. They did not call for intervention to protect the people of Yemen against the Saudi-led coalition (Moses, 2015). And they did not put Saudi Arabia’s credibility into question. Economic reasons and Saudi Arabia’s economic power (see Moses, 2015) might explain this.

4.3 Turkey’s Buffer Zones on Syria’s Border: “Humanitarian Safe Zone” for the Kurds Turkey is referring to the R2P when it comes to “Operation Euphrat” interventions in Syria or in Iraq. Those days, former Turkish Prime Minister Ahmet Davutoglu told Al-Jazeera Arabic TV in October 15, 2014, that “safe zones” created by the Turkish army on Syria’s border against the “Islamic State” should ‘[…] protect areas with populations over a certain density […]’ (Hurriyet Daily News, 2014) from Islamic State’s warriors: ‘The buffer zone we mean here is not a military definition, but a humanitarian safe zone under military protection’ (Hurriyet Daily News, 2014). Davutoglu mentioned the need to connect the Turkish border with certain areas around Idlib, Kobane, and Qamischli ‘[…] to protect Syria’s Arabs, Kurds and Turkmens […]’ (Hurriyet Daily News, 2014). The Prime Minister also stressed the necessity of air protection by an international coalition that was created for an intervention in Syria in these areas, and he referred to the case when Turkey had created internationally sanctioned no-fly zones in Iraq in the 1990s and 2000s against Saddam Hussein’s troops in order to protect Kurdish and other minorities in Northern Iraq (Hurriyet Daily News, 2014). At the same time, by this kind of intervention on Syria’s border, Turkey enables his army to fight against the Syrian Kurdish Army, called the People’s Protection Units (YPG), as well as influencing the Syrian Civil War by supporting the most important Islamist militia, Ahrar al Scham, which fights against the Syrian army of President Bashar al Assad. Hence, the Syrian government in Damascus does not accept the Turkish intervention to create “buffer zones”, and argues that Turkey does violate the principles of sovereignty and territorial integrity of the Syrian state (Hurriyet Daily News, 2014). According to Sey¸ ¸ sane and Celik (2015; see also the chapter in this volume), the articulation of the R2P in Turkish Foreign Policy is obvious since the AKP era (2012),

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and R2P has particularly become significant because of Civil Wars in Libya and Syria (Sey¸ ¸ sane & Celik, 2015: 376). According to both authors, there is a close correlation between Turkey’s general support of the R2P, and recently increasing emphasis on the “normative foundations” of a NATO member’s foreign policy which is said to pursue humanitarian goals such as Turkish minority protection (Sey¸ ¸ sane & Celik, 2015: 376). On the one side, Ankara has appeared as an active and strong advocate and supporter of the R2P norm in the context of the Syrian civil war. On the other side, the authors conclude that R2P has turned into a “justification tool” (Sey¸ ¸ sane & Celik, 2015: 376) in the discourse of Turkish foreign policy-makers for their “regional aspirations” (Sey¸ ¸ sane & Celik, 2015: 376) such as security, or hegemonic power towards Syria, Iraq and Iran (see also Erdogan, 2017, 2022).

5 The Evolution of the R2P Norm—Future Scenarios In conclusion, we point out some possible implications of the observable trend of authoritarian “humanitarian” interventionism for norm research in IR in terms of linear and non-linear—and sometimes paradoxical—norm dynamics, bringing out new and to some extend unexpected norm entrepreneurs in the R2P arena. And we raise several open questions that future studies of the phenomenon might address. As regards implications, three different scenarios might be discussed:

5.1 Liberal Optimist Scenario: The Rule of Law and Human Rights Protection The first, liberal-optimist scenario, taken the power of norms for granted, would be that authoritarian states, once adopting a humanitarian language for whatever reasons, implicitly reaffirmed the universal acceptance of the R2P and thus contributed to raising its status to customary international law. While their pursued irredentist and revisionist policies failed to get international acceptance and rather cause a frown, authoritarian governments have fallen into a liberal trap and they will have a hard time rolling back their explicit commitment to the R2P in the future without losing reputation and credibility. In sum, what counts in the long run is not the strategic calculus behind authoritarian interventionism, but its unintended consequences, eventually equaling a self-entrapment of authoritarian powers.

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5.2 Realist Pessimist Scenario: Towards a Functional Understanding of International Law A second scenario, taking the power of power politics for granted, conversely takes seriously the hollowing out of the substantial and procedural qualities of the R2P as a result of unilateral interventions or interventions of coalitions of willing and the use of disproportionate force for questionable purposes. Here, a functional understanding of international law as a tool to legitimate a certain kind of interventionist foreign policy becomes apparent. As a result, it assumes lasting damage in terms of the specificity and guiding character of the R2P, which will be watered down that international commitments to the R2P will almost have no consequences anymore, and the international community will face the status quo ante. In fact, this radical voluntarism is exactly what the Russian R2P discourse might be intended to demonstrate and, thus, to promote (see Burai, 2016). The resulting scenario seems like the realist-pessimist counterpart to the liberal-optimist variant above.

5.3 Alternative Scenario: Norm Dynamics and Non-linear Norm Evolution A third scenario refuses to assume a foreseeable linear norm life cycle or norm diffusion process. On the one hand, authoritarian state practices may well weaken the R2P and contribute to norm fragmentation and erosion. On the other hand, we assume that intensified norm contestation processes, resulting, amongst others, from authoritarian practices, have the potential to clarify the meaning and scope conditions of the R2P (for example see Arcudi, 2019; Badescu & Weiss, 2010) and thus make it more robust. For example, Russia’s appropriation of the R2P for irredentist purposes, or Saudi Arabia’s reference to the R2P for regional hegemony purposes in the Persian Gulf, and many other cases where the norm R2P is more or less obviously used in order to legitimate interventions and pursue other goals beyond human rights and/or minority protection, may provoke an intensified transnational and international debate of the problem of the kin-state, or the legitimacy and acceptance of those states who did label themselves norm entrepreneurs (Jose & Stefes, 2018). While the outcome of this debate, i.e. under what circumstances ethnic or religious communities have legitimate rights to protect outside members, cannot be predicted, ambiguities will likely be reduced and thus the specificity of the norm will be increased. Linked to these scenarios is a range of open questions that more directly address specific regime type effects. Most importantly, more research is needed on the success and effectiveness of authoritarian legitimization attempts by cheap talk strategies with regard to the R2P: While we were able to show that Russia and Saudi Arabia deliberately alluded to humanitarian rhetoric, this does not mean that they succeeded in convincing relevant third parties. Future studies could therefore shed light on the perception of such legitimization strategies by different audiences, both domestically

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and at the international and transnational levels. It might also be worth exploring in more detail specific effectiveness conditions and constraints of authoritarian legitimization strategies. For instance, is the humanitarian rhetoric brought forward by intervening autocracies less credible because of their poor human rights records and political repression at home? Or are there separate discourses, one focused on the legitimacy of cross-border violence and another on the authoritarian character of the Russian or Saudi Arabian political systems? Finally, there is also a normative dilemma to be discussed: Is it possible to discredit the irredentist use of the R2P by non-Western authoritarian powers without at the same time denying the universalist aspirations of the norm? On the one hand, interventions that invoke humanitarian principles to protect nationals abroad or members of an affiliated religious community call into question the altruistic and cosmopolitan concept of „saving strangers “. Thus, they must arguably be met with considerable skepticism. Criticizing these uses, on the other hand, also risks reinforcing the claim that the R2P is only a vehicle for self-mandated Western interventionism. This delicate relationship between universal and particularist notions of Western and non-Western states makes it all the more necessary to rethink the R2P in light of authoritarian interventions.

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Mischa Hansel is the head of the International Cybersecurity (ICS) research focus at the Institute for Peace Research and Security Policy (IFSH) at the University of Hamburg. He is also a CoSpeaker of the Norms and Changes in Global Politics research section at the Giessen Graduate Centre for Social Sciences, Business, Economics, and Law (GGS). Alexander Reichwein is Lecturer in International Relations at the Department of Political Science at the Justus-Liebig-University Giessen. He is also a Co-Speaker of the Norms and Changes in Global Politics research section at the Giessen Graduate Centre for Social Sciences, Business, Economics, and Law (GGS).