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Table of contents :
Dedication
Preface
Contents
List of Figures
List of Tables
Notes on Contributors
PART I: INTRODUCTION
1. R2P in Theory and Practice • Alex J. Bellamy and Tim Dunne
PART II: HISTORY
2. Humanitarian Intervention in the Nineteenth Century • Davide Rodogno
3. The Genocide Convention and Cold War Humanitarian Intervention • Tim Dunne and Eglantine Staunton
4. The Turbulent 1990s: R2P Precedents and Prospects • Thomas G. Weiss
5. Sovereignty as Responsibility: Building Block for R2P • Roberta Cohen and Francis M. Deng
6. Rwanda, Kosovo, and the International Commission on Intervention and State Sovereignty • Ramesh Thakur
7. The Genesis of R2P: Kofi Annan’s Intervention Dilemma • Charles Cater and David M. Malone
PART III: THEORY
8. R2P’s Status as a Norm • Melissa Labonte
9. Sovereignty • Luke Glanville
10. Moral Agents of Protection and Supplementary Responsibilities to Protect • Toni Erskine
11. R2P and International Law: A Paradigm Shift? • Sir Nigel Rodley
12. How Well Does R2P Travel Beyond the West? • Faith Mabera and Yolanda Spies
13. The Responsibility Not to Veto: A Responsibility Too Far? • Justin Morris and Nicholas J. Wheeler
PART IV: UN ORDER
14. UN Security Council • Alex J. Bellamy
15. UN General Assembly • Megan Schmidt
16. Getting There, Being There: The Dual Roles of the Special Adviser • Edward C. Luck
17. UN Human Rights Council and High Commissioner for Human Rights • Ekkehard Strauss
18. The Role of Regional Organizations: A Responsibility Gap? • David Carment, Joe Landry, and Sean Winchester
PART V: GLOBAL PERSPECTIVES
19. The African Union • Kwesi Aning and Frank Okyere
20. Asia Pacific and South Asia • Sarah Teitt
21. Europe and the European Union • Chiara de Franco, Christoph Meyer, and Karen E. Smith
22. Russia • Ekaterina Stepanova
23. Latin America • Mónica Serrano
24. The Arab Region • Fateh Azzam and Coralie Pison Hindawi
25. United States • Bruce W. Jentleson
PART VI: CROSS-CUTTING THEMES
26. Addressing the Gender Gap in R2P • Sara E. Davies
27. The Blurry Boundary between Peacebuilding and R2P • Roland Paris
28. The R2P, Protection of Civilians, and UN Peacekeeping Operations • Paul D. Williams
29. Saving Individuals from the Scourge of War: Complementarity and Tension between R2P and Humanitarian Action • Hugo Slim
30. The Use of Force • Taylor B. Seybolt
31. Conflict Prevention and R2P • Ruben Reike
32. Responding to Forced Displacement as a Mass Atrocity Crime • Phil Orchard
33. Responsibility while Protecting • Oliver Stuenkel
34. The International Criminal Court • Jason Ralph
35. The Use of UN Sanctions to Address Mass Atrocities • Jeremy Farrall
36. The Politics of Global Humanitarianism: R2P before and after Libya • Michael W. Doyle
PART VII: CASES
37. Côte d’Ivoire • Charles T. Hunt
38. Darfur • Jess Gifkins
39. The Democratic Republic of Congo • Arthur Boutellis
40. Kenya • Serena K. Sharma
41. Libya • Simon Adams
42. Mali • John Karlsrud
43. Myanmar • Jürgen Haacke
44. North Korea • Boris Kondoch
45. Somalia • Walter Lotze
46. South Sudan • Alison Giffen
47. Sri Lanka • Kimberly Nackers
48. Syria • Bessma Momani and Tanzeel Hakak
PART VIII: FACING THE FUTURE
49. R2P: The Next Ten Years • Gareth Evans
50. The State, Development, and Humanitarianism: China’s Shaping of the Trajectory of R2P • Rosemary Foot
51. Embedding R2P in a New Universal Declaration of Human Responsibilities • Kishore Mahbubani
52. Resetting the Narrative on Peace and Security: R2P in the Next Ten Years • Lloyd Axworthy
53. R2P’s Next Ten Years: Deepening and Extending the Consensus • Jennifer M. Welsh
Bibliography
Index
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T h e Ox f o r d H a n d b o o k o f

THE R E SP ON SI B I L I T Y TO  P ROT E C T

The Oxford Handbook of

THE RESPONSIBILITY TO PROTECT Edited by

ALEX J. BELLAMY and

TIM DUNNE

1

3 Great Clarendon Street, Oxford, ox2 6dp, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Oxford University Press 2016 The moral rights of the authors‌have been asserted Impression: 1 First Editon published 2016 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number:  2016933504 ISBN 978–​0–​19–​875384–​1 Printed in Great Britain by Clays Ltd, St Ives plc Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

This book is dedicated to Steve Smith, one of the great scholar-​leaders of his generation in the field of International Relations. He supervised Alex’s Ph.D. in Aberystwyth and has been a constant source of support and advice since. Steve taught Tim as an undergraduate at The University of East Anglia before appointing him to positions at Aberystwyth University and The University of Exeter. He has been an inspiration to both of us and continues to guide us on our respective academic pathways.

Preface

The modern United Nations system is built on a belief that the peoples of the earth share fundamental values and beliefs. The preamble to its Charter reads: ‘We the peoples of the United Nations determined . . . to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small . . . have resolved to combine our efforts to accomplish these aims’. Human rights are an expression of this global connectedness; they are rights that we hold by virtue of our common humanity. Yet the historical record shows that basic rights—​such as the right not to be killed by arbitrary violence—​have frequently been violated by states and other armed groups. Since 1945, international society has reputedly resolved to find ways to prevent and respond to genocide and other atrocity crimes. If we do not, then innocents abroad ‘must face their own particular terrors without any protection from the rest of us’.1 The Responsibility to Protect (R2P) is intended to provide an effective framework for responding to such crimes. R2P holds that states have a responsibility to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity (hereafter referred to collectively as ‘atrocity crimes’), should encourage and assist others to do so, and should take collective action through the UN and regional organizations to protect populations from these crimes. It is a myth to think that the idea of taking action to ‘save strangers’ in foreign lands from the worst kinds of tyranny was invented in the 1990s; indeed, as the Dutch jurist Hugo Grotius pointed out in the early seventeenth century, humanitarian intervention was a right that was claimed by sovereigns at the beginning of the Westphalian system. What happened in the 1990s, however, was significant in a different respect: despite the evolution of international laws and norms prohibiting atrocity crimes and providing for the protection of civilian populations it became apparent in the killing fields of Rwanda and Bosnia that international society had not developed the will to do what was necessary or effective sets of capacities, rules, and decision-​making procedures for living up to the promise of human protection. At the largest ever gathering in Heads of State and Government in 2005, the R2P framework was adopted as international society’s principal response to this problem. Subsequently, over the last decade, R2P has evolved in multiple ways: as a framework for guiding states and intergovernmental organizations in their response to atrocity crimes; as a moral principle which is widely shared among states, non-​state actors, and peoples; as a rallying cry for civil society actors to mobilize political action where the risk of atrocities (or their escalation) has been identified; and as an object of derision on the part of some critical theorists. While Thomas Weiss is

viii   Preface right to argue that few ideas have travelled further, or faster, than R2P, it should also be noted that not everyone has been travelling in the same direction. Interestingly, criticism of R2P’s relevance and effectiveness has evolved in line with its growing incorporation into international practices. As Edward Luck quipped, this might lead us to the judgement that R2P is a principle that works in practice but not in theory. Whatever one thinks of the merits of R2P, it must be recognized that the principle has been increasingly incorporated into practice by international society. At the time of writing, the UN Security Council had referred to R2P in some 37 resolutions, including thematic resolutions that reaffirmed the Council’s commitment and substantive resolutions adopted in response to crises in Central African Republic, Côte d’Ivoire, Darfur, Democratic Republic of Congo, Libya, Mali, Somalia, South Sudan, Syria, and Yemen. The General Assembly, which comprises the whole UN membership, has referred to R2P in three resolutions, one committing itself to ongoing consideration of its implementation and one each on the situations in Syria and North Korea. For its part, the UN’s Human Rights Council had adopted 13 resolutions, relating mainly to the crises in Libya, North Korea, and Syria. Beyond the UN, the African Commission on Human and Peoples’ Rights adopted a resolution in 2007 on ‘Strengthening the Responsibility to Protect in Africa’ and in 2013 the European Parliament recommended R2P to the European Council. Whilst the proliferation of resolutions is not in itself a measure of R2P’s effectiveness—​that hinges on its capacity to support the protection of populations from atrocity crimes—​it does indicate that R2P has emerged as an accepted norm—​the standard by which we judge international society’s performance and, more importantly, the standard by which international society and individual states judge their own performance. The growth in the practice of R2P is reflected in the growth of academic interest in the topic. There are today a number of research centres dedicated to developing human protection from atrocities, including the Global Centre for R2P in New York, the Asia Pacific Centre in Brisbane/Australia, European centres in Budapest, and an emerging one in Leeds. There is a journal dedicated to the principle, Global Responsibility to Protect, and a proliferation of academic courses that either have R2P as their main focus or that incorporate it into existing courses. Academic publishing has mirrored the development of the R2P framework. Since 2003, 339 outputs have appeared with R2P in the title or in the abstract. Predictably, this totality masks over a great deal of diversity: there are books and articles on R2P examining history, law, and practice; there are books and articles that examine UN decisions and missions; there are books and articles that look at cases and crises. But no publication hitherto has been as comprehensive as this Handbook. With this proliferation has come a proliferation of perspectives and readers will detect in these pages the presence of critical perspectives alongside those of advocates and those of writers who prefer not to position themselves directly in these debates. Hence the reader will encounter significant critiques of R2P in many of the chapters that have a country or a regional focus. We begin the Handbook with ‘History’—​where else is there to start? The literature on R2P has tended to over-​emphasize the recent history of sovereignty as responsibility: yet

Preface   ix we know that, for many centuries, statecraft has been influenced by ideas of protecting non-​citizens from actual or potential harm. The Handbook then moves on to consider ‘Theory’ and how R2P touches directly or indirectly on a series of profound theoretical questions; conceptual and normative questions about who has a duty to protect, how this should be exercised, and why. Clarity about how the distribution of responsibilities should be shared in international society remains a prescient dilemma. This leads logically to a consideration of agency in the section on the ‘UN Order’; the volume then considers ‘Global Perspectives’ on R2P, which precedes an analysis of the ‘Cross-​Cutting Themes’. In-​depth understandings of ‘Cases’ matter greatly, hence the inclusion of 12 case studies across three regions. The Handbook concludes with five forward-​looking essays offering informed analysis about the next ten years; three of these concluding chapters have been written by former Foreign Ministers of influential countries, one by a leading scholar-​practitioner, Jennifer Welsh, who currently serves the Special Adviser on R2P to the UN Secretary-​General, and one by a leading expert on a region that remains under-​studied in this context. It is a truism of most academic fields of study that ‘there is always more to be said’. But at the end of editing 53 chapters, by outstanding scholars and practitioners, we think we have said enough. As much as we think this is a comprehensive study of the subject, we are all too aware that research on R2P can and must continue to thrive. There is of course the dismal prospect—​or should we say certainty—​that there will be further atrocity crimes in the future which will be in places, and take forms, that we have not anticipated. We sincerely hope that greater shared understanding about R2P—​by diplomats, scholars, and activists—​will make a difference to anticipating future crises and calibrating how best to respond. Before closing out this Preface we would like to add a note on terminology. As we observed earlier, R2P relates to four crimes: genocide, war crimes, ethnic cleansing, and crimes against humanity. Contributors use a variety of different shorthands for these four crimes, most commonly ‘genocide and mass atrocities’ and ‘atrocity crimes’. Unless otherwise stated, these terms relate to the four crimes identified in paragraphs 138 and 139 of the World Summit Outcome Document. All that remains is to warmly thank our contributors, our colleagues at The University of Queensland, and our editor at OUP Dominic Byatt who provided encouragement and advice in equal measure. We also acknowledge the excellent editorial work done by Jo North. Two research assistants deserve a mention: Kimberly Nackers who helped a great deal while undertaking her post-​doc in the Asia Pacific Centre for R2P; and Joseph Hongoh from the School of Political Science and International Studies at The University of Queensland, who compiled the consolidated bibliography. Finally, we would like to thank both the Australian Government and The University of Queensland for co-​funding the Asia Pacific Centre for the Responsibility to Protect and enabling this project to happen (Agreement 63684). Alex was the Centre’s founding Director, Tim was Director from 2010–​14, and then Alex returned to lead the

x   Preface Centre in 2014. Throughout this time, the Centre has been wholeheartedly supported by the School of Political Science at The University of Queensland—​thank you to the current and past Heads whose terms of office have presided over the Centre’s three phases: Stephen Bell, Gillian Whitehouse, and Richard Devetak. Alex J. Bellamy and Tim Dunne The University of Queensland Australia

Note 1. Henry Shue, ‘Limiting Sovereignty’, in Jennifer M. Welsh (ed.), Humanitarian Intervention and International Relations (Oxford: Oxford University Press, 2004), p. 21.

Contents

List of Figures  List of Tables  Notes on Contributors 

xvii xix xxi

PA RT I   I N T RODU C T ION 1. R2P in Theory and Practice Alex J. Bellamy and Tim Dunne

3

PA RT I I   H I S TORY 2. Humanitarian Intervention in the Nineteenth C ​ entury  Davide Rodogno

19

3. The Genocide Convention and Cold War Humanitarian Intervention  38 Tim Dunne and Eglantine Staunton 4. The Turbulent 1990s: R2P Precedents and Prospects  Thomas G. Weiss

56

5. Sovereignty as Responsibility: Building Block for R2P  Roberta Cohen and Francis M. Deng

74

6. Rwanda, Kosovo, and the International Commission on Intervention and State Sovereignty  Ramesh Thakur 7. The Genesis of R2P: Kofi Annan’s Intervention Dilemma  Charles Cater and David M. Malone

94 114

PA RT I I I   T H E ORY 8. R2P’s Status as a Norm  Melissa Labonte

133

xii   Contents

9. Sovereignty  Luke Glanville

151

10. Moral Agents of Protection and Supplementary Responsibilities to Protect  Toni Erskine

167

11. R2P and International Law: A Paradigm Shift?  Sir Nigel Rodley

186

12. How Well Does R2P Travel Beyond the West?  Faith Mabera and Yolanda Spies

208

13. The Responsibility Not to Veto: A Responsibility Too Far?  Justin Morris and Nicholas J. Wheeler

227

PA RT I V   U N  OR DE R 14. UN Security Council  Alex J. Bellamy

249

15. UN General Assembly  Megan Schmidt

269

16. Getting There, Being There: The Dual Roles of the Special Adviser  Edward C. Luck

288

17. UN Human Rights Council and High Commissioner for Human Rights Ekkehard Strauss 18. The Role of Regional Organizations: A Responsibility Gap?  David Carment, Joe Landry, and Sean Winchester

315 335

PA RT V   G L OBA L P E R SP E C T I V E S 19. The African Union  Kwesi Aning and Frank Okyere

355

20. Asia Pacific and South Asia  Sarah Teitt

373

Contents   xiii

21. Europe and the European Union  Chiara de Franco, Christoph Meyer, and Karen E. Smith

391

22. Russia  Ekaterina Stepanova

409

23. Latin America  Mónica Serrano

429

24. The Arab Region Fateh Azzam and Coralie Pison Hindawi

451

25. United States  Bruce W. Jentleson

469

PA RT V I  C RO S S -​C U T T I N G  T H E M E S 26. Addressing the Gender Gap in R2P  Sara E. Davies

489

27. The Blurry Boundary between Peacebuilding and R2P  Roland Paris

509

28. The R2P, Protection of Civilians, and UN Peacekeeping Operations  Paul D. Williams

524

29. Saving Individuals from the Scourge of War: Complementarity and Tension between R2P and Humanitarian Action  Hugo Slim

545

30. The Use of Force  Taylor B. Seybolt

561

31. Conflict Prevention and R2P  Ruben Reike

581

32. Responding to Forced Displacement as a Mass Atrocity Crime  Phil Orchard

604

33. Responsibility while Protecting  Oliver Stuenkel

620

xiv   Contents

34. The International Criminal Court  Jason Ralph

638

35. The Use of UN Sanctions to Address Mass Atrocities  Jeremy Farrall

655

36. The Politics of Global Humanitarianism: R2P before and after Libya  673 Michael W. Doyle

PA RT V I I   C A SE S 37. Côte d’Ivoire  Charles T. Hunt

693

38. Darfur  Jess Gifkins

717

39. The Democratic Republic of Congo  Arthur Boutellis

734

40. Kenya  Serena K. Sharma

750

41. Libya  Simon Adams

768

42. Mali  John Karlsrud

786

43. Myanmar  Jürgen Haacke

801

44. North Korea  Boris Kondoch

825

45. Somalia  Walter Lotze

840

46. South Sudan  Alison Giffen

857

Contents   xv

47. Sri Lanka  Kimberly Nackers

876

48. Syria  Bessma Momani and Tanzeel Hakak

895

PA RT V I I I   FAC I N G T H E  F U T U R E 49. R2P: The Next Ten Years  Gareth Evans

913

50. The State, Development, and Humanitarianism: China’s Shaping of the Trajectory of R2P  Rosemary Foot

932

51. Embedding R2P in a New Universal Declaration of Human Responsibilities  Kishore Mahbubani

948

52. Resetting the Narrative on Peace and Security: R2P in the Next Ten Years  Lloyd Axworthy

968

53. R2P’s Next Ten Years: Deepening and Extending the Consensus  Jennifer M. Welsh Bibliography  Index 

984 1001 1089

List of Figures

28.1 The humanitarian interagency ‘protection egg’ 

531

28.2 The UN DPKO/​DFS ‘tiered’ approach to protection of civilians 

532

28.3 The relationship between the R2P and protection agendas and UN peacekeeping operations 

534

28.4 The relationship between R2P, POC, and UN peacekeeping operations 

534

28.5 Illustrative examples of the relationship between the R2P and protection agendas and UN peacekeeping operations 

535

List of Tables

27.1 UN Secretary-​General reports on R2P 

514

27.2 UN Secretary-​General reports on peacebuilding 

515

30.1 Statements on R2P in the UN Security Council, 2005–​2011 

572

30.2 Number, proportion, and frequency of third-​party military interventions by type of actor, 1946–​2008 

574

Notes on Contributors

Simon Adams  is the Executive Director of the Global Centre for the Responsibility to Protect. Kwesi Aning  is the Director and founding Dean of the Faculty of Academic Affairs and Research, Kofi Annan International Peacekeeping Training Centre, Accra, Ghana. He has had a long association with issues related to the responsibility to protect and served on the board of the Global Centre for the Responsibility to Protect. Lloyd Axworthy, PC, CC, OM, Ph.D., served in the Canadian House of Commons and the Manitoba Legislature for 27 years holding several Cabinet posts. As Foreign Minister, he became internationally known for his advancement of the human security concept and initiated the International Commission on Intervention and State Sovereignty. He was President and Vice-Chancellor of the University of Winnipeg for two full terms, retiring in June 2014. He is Board Chair of CUSO and a member of the Executive Committee of the Board of the International Institute for Sustainable Development. Fateh Azzam is Director of the Asfari Institute for Civil Society and Citizenship at the American University of Beirut, Lebanon and former Middle East Regional Representative of the UN High Commissioner for Human Rights. He is a founding member of the Palestinian Independent Commission for Human Rights—​Palestine’s national human rights institution. Alex J.  Bellamy  is the Director of the Asia Pacific Centre for the Responsibility to Protect and Professor of Peace and Conflict Studies at The University of Queensland, Australia. He is also Non-​Resident Senior Adviser at the International Peace Institute, New York. Arthur Boutellis  is Director of the Brian Urquhart Center for Peace Operations at the International Peace Institute (IPI) in New York. David Carment  is Professor of International Affairs at the Norman Paterson School of International Affairs, Carleton University, Canada. Charles Cater  is an Expert on the UN Monitoring Group on Somalia and Eritrea and a former Research Analyst at Security Council Report. Roberta Cohen  is a Non-​Resident Senior Fellow at the Brookings Institution, former Co-​Director of the Brookings Project on Internal Displacement, a former Deputy Assistant Secretary of State for Human Rights and Senior Adviser to the US Delegation to the UN.

xxii   Notes on Contributors Sara E. Davies  is an Australian Research Council Future Fellow at Griffith University. She is also an Adjunct Associate Professor in the School of Social Sciences, Monash University. Francis M. Deng  is former Representative of the UN Secretary-​General on Internally Displaced Persons, former Senior Fellow and Director of the Africa program at the Brookings Institution, and former Special Adviser to the UN Secretary-​General on the Prevention of Genocide. Michael W. Doyle  is the Director of the Columbia Global Policy Initiative and Professor, University of Columbia. He served as Assistant Secretary-​General for Policy Planning and Special Adviser to United Nations Secretary-​General Kofi Annan. He also served as an individual member and the chair of the UN Democracy Fund from 2006 through 2013. Tim Dunne  is Professor of International Relations in the School of Political Science and International Studies and Senior Researcher in the Asia Pacific Centre for R2P. He is also the Executive Dean of the Faculty of Humanities and Social Sciences at The University of Queensland. Toni Erskine  is Professor of International Politics and Associate Director (Politics & Ethics) of the Australian Centre for Cyber Security, University of New South Wales (UNSW), Australia. Gareth Evans, AC, is Chancellor and Honorary Professorial Fellow at the Australian National University and Co-​ Chair of the International Advisory Board for the Global Centre for the Responsibility to Protect. Evans has previously held positions as Australian Foreign Minister, 1988–​96, and President of the International Crisis Group, 2000–​9, co-​chaired the International Commission on Intervention and State Sovereignty 2001, and was a member of the UN Secretary-​General’s High-​Level Panel on Threats, Challenges and Change. Jeremy Farrall  is a Fellow at the Asia Pacific College of Diplomacy in the Coral Bell School of Asia Pacific Affairs at the Australian National University and an Adjunct Associate Professor at the University of Tasmania Faculty of Law. Rosemary Foot  is Professor and Senior Research Fellow in International Relations at the University of Oxford and Emeritus Fellow of St Antony’s College, Oxford. Recent publications include The Oxford Handbook of the International Relations of Asia (with Saadia M. Pekkanen and John Ravenhill, 2014). Chiara de Franco  is Associate Professor at the University of Southern Denmark. Alison Giffen  is the Senior Advisor on UN Peacekeeping at the US Department of State. The views expressed herein are the author’s own and do not necessarily reflect those of the US Government. Prior to her position at the US Department of State, she served as a Senior Associate and Co-Director of Stimson’s Future of Peace Operations programme and lead Stimson’s Project on Civilians in Conflict.

Notes on Contributors    xxiii Jess Gifkins  is Senior Lecturer at Leeds Beckett University and an Honorary Research Fellow at The University of Queensland. Luke Glanville  is a Fellow in the Department of International Relations, Australian National University. Jürgen Haacke  is Associate Professor in the International Relations Department at the London School of Economics and Political Science. Tanzeel Hakak  is a recent graduate of the Balsillie School of International Affairs (BSIA) at the University of Waterloo in Ontario, Canada. She is currently a Research Associate at the International Relations Digital Technology Project (IRDTP) and the University of Waterloo. Coralie Pison Hindawi  is Assistant Professor for International Law and International Relations at the American University of Beirut, Lebanon. She is also a visiting research fellow at the Arab Institute for Security Studies, Amman, Jordan. Charles T. Hunt  is Vice-Chancellor’s Research Fellow at the Centre for Global Research and the School of Global, Urban and Social Studies at RMIT University, Melbourne. He is also an honorary Research Fellow at the Asia Pacific Centre for the Responsibility to Protect, University of Queensland, Brisbane. Bruce W. Jentleson is a Professor of Public Policy and Political Science at Duke University. He is the 2015–​ 16 Henry A. Kissinger Chair in Foreign Policy and International Relations at the John W. Kluge Center, Library of Congress. He was a member of the R2P Working Group co-​chaired by Madeleine Albright (2011–​13). John Karlsrud  is Senior Research Fellow at the Norwegian Institute of International Affairs (NUPI) working on peacekeeping, peacebuilding, and humanitarian issues. He previously served as Special Assistant to the UN Special Representative of the Secretary-​ General to Chad. Boris Kondoch  is Professor at the Far East University/​South Korea and Editor of the Journal of International Peacekeeping. Melissa Labonte  is Associate Professor of Political Science at Fordham University, vice chair of the Academic Council on the UN System, and sub-​Saharan Africa academic adviser to Freedom House. Joe Landry  is a Ph.D. candidate at the Norman Paterson School of International Affairs, Carleton University, Canada. Walter Lotze  is an Associate Researcher at the Norwegian Institute of International Affairs. Edward C. Luck  is Professor of Practice in International and Public Affairs at Columbia University, New York. He served as Special Adviser to the UN Secretary-​General on the Responsibility to Protect, 2008–​12.

xxiv   Notes on Contributors Faith Mabera is a researcher at the Institute for Global Dialogue associated with UNISA in Pretoria, and a postgraduate student in the Department of Political Sciences, University of Pretoria. Kishore Mahbubani is Dean of the Lee Kuan Yew School of Public Policy at the National University of Singapore. David M. Malone  is Rector of the UN University and an Under-​Secretary-​General of the UN. Christoph Meyer  is a Professor of European and International Politics at King’s College London. Bessma Momani  is an Associate Professor of Political Science at the University of Waterloo, Canada, and the Balsillie School of International Affairs (BSIA). She is also a Senior Fellow at the Centre for International Governance Innovation (CIGI). Justin Morris  is Senior Lecturer in the School of Politics, Philosophy and International Studies at the University of Hull, UK. He was Head of Department, 2007–​13. Kimberly Nackers  is a Postdoctoral Research Fellow with the Asia Pacific Centre for the Responsibility to Protect at The University of Queensland. Frank Okyere  is a Research Associate at the Faculty of Academic Affairs and Research, Kofi Annan International Peacekeeping Training Centre, Accra, Ghana. Phil Orchard  is the Research Director and Program Leader at the Asia Pacific Centre for the Responsibility to Protect. He is also Senior Lecturer in Peace and Conflict Studies and International Relations in the School of Political Science and International Studies at The University of Queensland. Roland Paris  is University Research Chair in International Security and Governance and the founding Director of the Centre for International Policy Studies at the University of Ottawa. On academic leave, he currently serves as Senior Advisor to the Prime Minister of Canada on foreign and defence policy. Jason Ralph  is Professor of International Relations at the University of Leeds and Honorary Professor in the School of Political Science and International Studies at The University of Queensland. He was a Marie Curie (EU) International Outgoing Fellow at the Asia ​Pacific Centre for R2P (2014–​15) and is Senior Research Fellow at the Foreign Policy Centre. Ruben Reike  is a Postdoctoral Research Fellow at the European University Institute. Sir Nigel Rodley is Emeritus Professor of Law and Chair of the Human Rights Centre, University of Essex; Member (former Chairperson) of the UN Human Rights Committee, and President of the International Commission of Jurists.

Notes on Contributors    xxv Davide Rodogno is a Professor at the Graduate Institute of International and Developments Studies, Geneva. Megan Schmidt  is the Senior Program Officer at the International Coalition for the Responsibility to Protect. Mónica Serrano  is Professor of International Relations at El Colegio de México, Senior Research Associate at the Centre for International Studies at Oxford University, and a Senior Fellow at the Ralph Bunche Institute for International Studies. She was the founding Executive Director of the Global Centre for the Responsibility to Protect. Taylor B. Seybolt is Associate Professor at the Graduate School of Public and International Affairs and Director of the Ford Institute for Human Security, University of Pittsburgh, USA. Serena K. Sharma  is a Fellow in Global Politics at the London School of Economics. Hugo Slim  is a Senior Research Fellow in the Department of Politics and International Relations and Associate Director of the Institute for Ethics, Law and Armed Conflict at the University of Oxford. Karen E. Smith  is Professor of International Relations and Director of the European Foreign Policy Unit at the London School of Economics and Political Science. Yolanda Spies is Senior Lecturer in the Department of Political Sciences of the University of Pretoria, where she directs a Master of Diplomatic Studies Programme. Eglantine Staunton is a Ph.D.  candidate in the School of Political Science and International Studies at The University of Queensland. Ekaterina Stepanova  is the Head of the Peace and Conflict Studies Unit, Institute of World Economy and International Relations (IMEMO), Moscow. Ekkehard Strauss  is an adjunct Professor at Griffith University. From 2004–7 he supported the establishment of the Office of the Special Adviser to the Secretary-General on the Prevention of Genocide. Oliver Stuenkel is Assistant Professor of International Relations at the Getúlio Vargas Foundation (FGV) in São Paulo, where he coordinates the São Paulo branch of the School of History and Social Science (CPDOC) and the executive program in International Relations. Sarah Teitt is Deputy Director and Researcher at the Asia Pacific Centre for the Responsibility to Protect, The University of Queensland. Ramesh Thakur  is Professor in the Crawford School of Public Policy, The Australian National University. A  former UN Assistant Secretary-​General, he was a member of the International Commission on Intervention and State Sovereignty—​the only

xxvi   Notes on Contributors Commissioner who was a serving UN official—​and, with Gareth Evans, co-​author of its report The Responsibility to Protect. Thomas G. Weiss  is Presidential Professor of Political Science at The City University of New York’s Graduate Center, Director Emeritus of the Ralph Bunche Institute for International Studies, and Research Professor at SOAS, University of London. He was Research Director of the International Commission on Intervention and State Sovereignty. Jennifer M. Welsh  is Professor and Chair in International Relations at the European University Institute (Florence) and the current Special Adviser to the UN Secretary-​ General on the Responsibility to Protect. Nicholas J. Wheeler  is Professor of International Relations and Director of the Institute for Conflict, Cooperation, and Security at the University of Birmingham. He is co-​ editor with Professor Christian Reus-​Smit and Professor Evelyn Goh of the prestigious Cambridge Series in International Relations. Paul D. Williams  is Associate Professor of International Affairs at the Elliott School of International Affairs, George Washington University, Washington, DC. He is also NonResident Senior Adviser at the International Peace Institute, New York. Sean Winchester  is a Ph.D. candidate at the Norman Paterson School of International Affairs, Carleton University, Canada.

Pa rt  I

I N T RODU C T ION

Chapter 1

R2P in Th e ory and Prac t i c e Alex J. Bellamy and Tim Dunne

The phrase ‘responsibility to protect’, or R2P as it has come to be known, was first coined only in 2001. The ideas behind it, however, were the product of efforts over several decades in international society to identify and define crimes that have, to borrow a phrase from Michael Walzer, ‘shocked the conscience of mankind’ and protect populations from them.1 The story of R2P’s emergence begins in the shadow of the Holocaust when the call of ‘Never Again’ galvanized efforts to define, prevent, and punish the crime of genocide. Advocates such as Raphael Lemkin and some state leaders hoped to build a new society of states that would protect people from the sorts of crimes committed by the Nazis and their allies. In 1947, the newly established United Nations General Assembly issued the Genocide Convention, which prohibited the crime of genocide, assigned all states a responsibility to prevent it, and demanded that the perpetrators be punished for their actions—​much as the wartime Allies had punished the Nazi and Japanese crimes during the Nuremberg and Tokyo trials.2 In 2007, the International Court of Justice (ICJ) judged that, as a result of this convention, all states have a legal responsibility to do what they can, within existing law, to prevent genocide. Specifically, the court found that states had a legal duty to take positive steps to prevent genocide when they have prior knowledge about its likely commission and the capacity to influence the suspected would-​be perpetrators. Two years after the Genocide Convention, the four Geneva Conventions (1949) codified the laws of war and identified deliberate attacks on civilians and prisoners as ‘war crimes’. The subsequent Protocols (1977) to the Geneva Convention established the immunity of all non-​combatants, whether in international or non-​international armed conflicts, from the intentional use of armed force against them and required that State Parties cooperate with one another to prevent violations of the law and promote compliance with it. In 1998, the Rome Statute of the International Criminal Court (ICC), which has more than 120 State Parties, extended some of these provisions to contexts outside of armed conflict under the rubric of ‘crimes against humanity’, whilst the International

4    Alex J. Bellamy and Tim Dunne Criminal Tribunal for Yugoslavia (ICTY) confirmed that the practice of ‘ethnic cleansing’ constituted one such crime. But international practice has seldom lived up to the lofty demands of international law. With concern for human dignity trumped by the global struggle for geopolitical supremacy during the Cold War, genocide and mass atrocities remained quite common.3 Despite advances in international law, the perpetrators of these crimes were often able to act with impunity. Communist regimes used mass violence against civilian populations to eradicate ‘bad elements’, impose their authority, and radically transform societies in breathtakingly short periods of time. Stalin’s Soviet Union, Mao’s China, and Pol Pot’s Cambodia all used mass violence against civilians to achieve their goals, resulting in the premature deaths of tens of millions of people. Historians argue about whether Stalin killed more people than Hitler, but whichever was the bloodiest it is a relatively close run thing. New research on the scale of mass killing in Maoist China, which accounted for several million people before the end of the Cold War, suggests that no people have been killed in larger numbers than the Chinese at the hands of their government.4 Whilst smaller in absolute numbers, Khmer Rouge rule in Cambodia led to the death of more than a quarter of that country’s population in just three and a half years.5 When Vietnam invaded Cambodia in 1979 and put an end to the slaughter, it was censured by international society for violating Cambodia’s sovereignty and subjected to economic sanctions—​a clear signal of how low a priority stopping genocide and mass killing was when compared to other goals during the Cold War.6 Other communist regimes, including that in North Korea and several former regimes in Eastern Europe were, in some periods, equally brutal. But it was not just communist regimes that used extreme violence against civilian populations to prosecute their political agendas. On the eve of the Korean War, South Korea’s military regime rounded up and executed suspected communists and their families. Precisely how many were killed will never be known, but estimates suggest that at the very least, some 100,000 people were killed.7 The massacres were barely reported at the time. A decade later, the Indonesian military orchestrated the killing of approximately 600,000 suspected and actual communists during a six-​month spree in 1965–​6, raising barely a ripple of international press coverage, let alone condemnation. Similar stories could be told of right-​wing regimes in Argentina, Chile, El Salvador, and Guatemala, though the sheer scale of killing was significantly less and by the 1980s, these governments started to come under intense pressure to mend their ways. Nationalism and the politics of self-​interest, too, was a cause of mass killing—​as with Pakistan’s bloody suppression and potential genocide in East Pakistan (Bangladesh), which left between one and three million people dead and Idi Amin’s reign of terror in Uganda which accounted for between 100,000 and 300,000 lives. Despite the advance of international laws prohibiting these crimes, very little was done to stop them or to protect vulnerable populations. This was because Cold War politics relegated concerns for human rights below other foreign policy priorities such that perpetrators were often protected by one or other of the superpowers; it was also because sovereignty was generally judged to be a more important value than human

R2P in Theory and Practice    5 rights.8 Where interventions did occur they were driven by concerns other than human protection. When the Cold War was over, there were hopes that the end of global ideological rivalry would usher in a ‘New World Order’ in which liberalism and human rights would triumph and cooperative arrangements within international society could be fostered in support of these substantive norms. But if the diminishing of global rivalry between East and West helped open up a diplomatic space for taking human rights seriously, it is also the case that ‘global 1989’ exposed the stark disjuncture between the aforementioned international legal responsibilities and actual lived experience. Genocide in Rwanda and Srebrenica; mass killing and ethnic cleansing in Angola, Bosnia, Burundi, Croatia, East Timor, Kosovo, Liberia, Sierra Leone, and Zaire/​Congo; state repression in northern and southern Iraq; and acute state fragility and civil war leading to mass human suffering in Somalia; these cases exposed the hollowness of legal responsibilities in the face of armed groups willing and able to generate and use mass civilian suffering for their own ends. The international community was ill-​prepared to respond effectively to this tide of human misery and was often divided: UN peacekeepers recoiled in the face of the génocidaires in Rwanda, where 800,000 people were massacred in 100 days, and stood aside as Security Council mandated ‘safe areas’ collapsed in Bosnia—​in Srebrenica in 1995, 7,000 men and boys were taken from a UN guarded safe area and massacred; US forces were hounded out of Mogadishu in Somalia taking UN peacekeepers with them and any hope of delivering humanitarian aid to civilians; political and diplomatic efforts were insufficient to stop Angola’s slide back into war or the widely predicted mass violence that greeted East Timor’s vote for independence. In addition to the immediate death tolls, these, and other, crises also created a global crisis of internal displacement as up to 20 million people were forced from their homes but left unable to claim the protections afforded by International Refugee Law because they had not crossed international borders. As failures of protection mounted and the gap between international society’s declaratory aspirations and its practices turned into a chasm, states and international organizations began to learn the lessons of these failures and to develop new concepts and ideas such as the ‘protection of civilians’ and ‘sovereignty as responsibility’. These, and other, initiatives allowed the then UN Secretary-​General, Kofi Annan, to declare in 1999 that ‘state sovereignty, in its most basic sense, is being redefined . . . States are now widely understood to be the servants of their people, not vice versa.’9 Emerging conceptions of sovereignty as entailing responsibilities clashed, however, with more traditional ways of understanding it. Since 1945 at least, sovereignty had to this point been commonly understood as entailing a right to non-​interference (Article 2(7) of the UN Charter). This raised the difficult question of how the international community should respond to situations in which the state failed to protect its own population from conscience-​ shocking crimes or when the state itself was among the principal perpetrators of such crimes. These questions were brought into sharp focus by the crisis in Kosovo in 1998–​9. When international negotiations, sanctions, and observers failed to stem the tide of violence, which included the systematic ethnic cleansing of Kosovar Albanians by

6    Alex J. Bellamy and Tim Dunne Yugoslav government forces, NATO decided to intervene militarily despite not having a UN Security Council mandate to do so. The intervention triggered a major debate on the circumstances in which the use of force for human protection purposes might be justifiable, the intricacies of which were reflected in the findings of an international commission on the issue which found that NATO’s actions in Kosovo were ‘illegal but legitimate’.10 At issue were the relationship between international society’s aspirations for human protection and its basic norms of coexistence and that between the state and its own population. Behind this stood the credibility of international society’s commitment to very basic standards of human rights and the role of the UN in the twenty-​first century. UN Secretary-​General Kofi Annan set out the dilemmas most succinctly in his 1999 address to the General Assembly: To those for whom the greatest threat to the future of international order is the use of force in the absence of a Security Council mandate, one might ask . . . in the context of Rwanda: If, in those dark days and hours leading up to the genocide, a coalition of States had been prepared to act in defence of the Tutsi population, but did not receive prompt Council authorization, should such a coalition have stood aside and allowed the horror to unfold? To those for whom the Kosovo action heralded a new era when States and groups of States can take military action outside the established mechanisms for enforcing international law, one might ask: Is there not a danger of such interventions undermining the imperfect, yet resilient, security system created after the Second World War, and of setting dangerous precedents for future interventions without a clear criterion to decide who might invoke these precedents and in what circumstances?11

It was in part to find answers to these questions that the Canadian government decided to establish an International Commission on Intervention and State Sovereignty (ICISS) in 2000. Its report, entitled Responsibility to Protect, was released in December 2001 and endorsed by Annan, who described it as ‘the most comprehensive and carefully thought-​out response [to the dilemma of human protection] we have seen to date’.12 The ICISS attempted to respond to Annan’s challenge by reframing the debate in terms of the primary responsibilities of states to protect their own populations and the residual responsibility of international society when states failed to protect their own from genocide, mass killing, and ethnic cleansing.13 The concept of R2P therefore emerged out of the repeated failure of international society to respond to genocide and mass atrocities in the 1990s. Developments in a range of fields—​including peacekeeping, refugee and displacement work, humanitarian relief, international diplomacy, and regional action—​in response to the widely felt failures to protect people from great harm in a number of different places, focused international attention on the protection of human life from conscience-​shocking inhumanity. Specifically, the crises in Rwanda and Kosovo exposed two critical challenges related to the political will to act (Rwanda) and the authority on which action may be taken (Kosovo). The ICISS argued that states were best placed to protect their own

R2P in Theory and Practice    7 populations and that with the rights of sovereignty also came responsibilities.14 But it also argued that international society collectively bore responsibility for protection and that recognition of this responsibility would help establish the political will and consensus to act in response to humanitarian crises, ideally through the existing institutions of international society. After six years of advocacy and negotiation, R2P was unanimously endorsed by the 2005 World Summit, the largest ever gathering of Heads of State and Government. The Summit’s Outcome Document was later adopted as a General Assembly resolution. Under the heading ‘responsibility to protect’, Paragraphs 138–​40 of the Summit’s Outcome Document declared that: 138. Each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability. 139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter of the United Nations, to help protect populations from war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-​by-​case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity before crises and conflicts break out. 140. We fully support the mission of the Special Adviser of the Secretary-​General on the Prevention of Genocide.

This commitment has been reaffirmed several times by the UN Security Council (including in resolutions 1674 (2006), 1894 (2009), and 2150 (2014)) and in 2009 the General Assembly has committed itself to ongoing consideration of its implementation (A/​RES/​63/​308). In his first report on the subject, the UN Secretary-​General, Ban Ki-​ moon distilled this commitment into three non-​sequential and equally important ‘pillars’ of R2P: (1) the primary responsibility of states to protect their own population from genocide, war crimes, ethnic cleansing, and crimes against humanity, and from their

8    Alex J. Bellamy and Tim Dunne incitement; (2) the duty of states to assist each other to build the capacities necessary to discharge the first responsibility; (3) the international community’s responsibility to take timely and decisive action to protect populations from the four crimes when the state in question fails to do so.15 To better understand this commitment, it is important to bear four key points in mind. First, R2P is narrow in scope, but universal and enduring in its coverage. The concept applies everywhere, all the time. In other words, all states have a permanent responsibility to protect their populations from the four crimes. As UN Secretary-​General Ban Ki-​moon pointed out in 2012, the question is never one of whether or not R2P ‘applies’—​ because this wrongly implies that there are situations in which states do not have a responsibility to protect their populations—​but of how best to realize its goals in any given situation. The concept is narrow, though, in that it relates only to the four crimes identified in the 2005 World Summit Outcome Document: genocide, war crimes, ethnic cleansing, and crimes against humanity and to their prevention. The concept does not relate to threats to human life stemming from natural disasters, diseases, armed conflict in general, or repressive measures16 adopted by non-​democratic forms of government.17 Second, states have a responsibility to protect all populations under their care, not just citizens. Paragraphs 138–​9 specifically refer to populations and not citizens. This can be significant in situations where states fail to protect sections of a population because they are not judged to be citizens, as in the case of the Muslim Rohingya in Myanmar. Third, R2P is based on well-​established principles of existing international law. The atrocity crimes to which it relates are prohibited by international law. As we noted earlier, states already have obligations to: prevent and punish genocide, war crimes, and crimes against humanity; assist states to fulfil their obligations under international humanitarian law; and promote compliance with the law. The World Summit agreed that R2P should be implemented through the UN Charter. As such, nothing in the R2P principle as agreed in 2005 permits states or regional organizations to violate the Charter, for example by using force against another state without authorization by the UN Security Council. Force may be used only when authorized by the UN Security Council and when other, peaceful, measures adopted under Chapters VI and VIII of the UN Charter are thought unlikely to succeed. Fourth, the World Summit Outcome Document calls explicitly for the prevention of the four crimes and their incitement. As such, prevention is a central element of R2P, with other measures contemplated only when prevention fails or (in line with Article 42 of the UN Charter) is thought likely to fail by the UN Security Council. Moreover, Member States declared their support for the mandate of the Special Adviser for the Prevention of Genocide and promised to support strengthening the UN’s capacity for early warning. The Mandate of the Special Adviser for the Prevention of Genocide, appointed in 2004, included tasks directly related to early warning and assessment: (a) to collect existing information, in particular from within the UN system, relating to violations of human rights that could give rise, if nothing were done, to genocide; (b) to bring situations of concern to the Secretary-​General and, through him, to the Security Council; (c) to make recommendations to the Security Council, through the

R2P in Theory and Practice    9 Secretary-​General, on actions to prevent or halt genocide; (d) to liaise with the UN system on activities for the prevention of genocide and to enhance the capacity of the UN system to analyse and manage relevant information. Since its adoption in 2005, R2P has become part of the diplomatic language used, albeit unevenly and with patchy results, by international society to prevent and respond to atrocity crimes. Indeed, the practical development of R2P got off to a slow and discouraging start. In the almost five years between Security Council resolution 1674 (2006) and resolution 1970 on Libya (2011), the Council referred to the concept only once (though it did refer to R2P prior to resolution 1674, in resolution 1653 (2006) on the Great Lakes Region of Africa). This came in a highly contentious preambular paragraph in resolution 1706 (2006) on the situation in Darfur, where Sudanese government forces and their notorious allies the ‘Janjaweed’ militia had unleashed a reign of terror resulting in the death of some 100,000 people and the forced displacement of over two million more. The wounds of the diplomatic battle that preceded this resolution ran so deep that the Council demurred from using R2P again in the context of Darfur or any other crisis for that matter. Although the Security Council backed away from R2P, there were signs that others remained committed to its goals. In late 2007, a dispute about the result of the presidential election spiralled into ethnic and tribal violence in Kenya, resulting in the killing of some 1,500 people and the forced displacement of 300,000 more. The international community responded with a coordinated diplomatic effort. Kofi Annan was appointed mediator by the African Union. Approaching the situation ‘in the R2P prism’, as he put it, Annan persuaded the country’s president, Mwai Kibaki, and main opponent, Raila Odinga, to conclude a power-​sharing agreement and rein in the mobs.18 This diplomatic effort, couched squarely in R2P terms, pulled Kenya back from the brink of a terrible fate. It also provided a tangible demonstration of R2P’s capacity to facilitate atrocity prevention through peaceful means. But with the UN and its Member States so hesitant to implement their 2005 commitment to R2P, few—​if any—​anticipated the role that the principle would play in the dramatic events of 2011. On 17 December 2010, Mohamed Bouazizi, a Tunisian street vendor, set himself alight in protest at repeated harassment by state authorities. This single act of protest sparked a region-​wide revolution that came to be known as the ‘Arab Spring’. In February 2011, the ‘Arab Spring’ reached Libya. Protests there quickly turned into a major uprising that threatened to topple the dictator Muammar Gadhafi, who had ruled with an iron fist for over 40 years. Gadhafi’s forces responded to the challenge with typical brutality and the Libyan leader issued chilling threats of retribution reminiscent of the terms used to incite the Rwandan genocide nearly 20 years earlier. The following month, in March 2011, the Security Council responded rapidly to the unfolding crisis. Resolution 1970, which was adopted unanimously, referred specifically to R2P, demanded an immediate cessation of violence, established a political process aimed at finding a negotiated settlement, imposed targeted financial sanctions on the regime and an arms embargo, and referred the matter to the ICC for investigation. In sharp contrast to the bitterness of debates about R2P just five years earlier, the inclusion of R2P in resolution 1970 was uncontroversial.

10    Alex J. Bellamy and Tim Dunne When the Gadhafi regime failed to comply with the Council’s demands and looked likely to topple the rebel stronghold of Benghazi and commit a massacre there, the Council took the unprecedented step of authorizing the use of force against a state to protect civilians from imminent danger, enforce a no-​fly zone, and enforce an arms embargo (resolution 1973). NATO and its allies hastily arranged a coalition of the willing which prevented the fall of Benghazi and the widely anticipated massacre there. The conflict dragged on into a stalemate but eventually the regime collapsed and Gadhafi was killed, provoking a new storm of controversy that is discussed later in this Handbook. Libya was the first time in its history that the Council had authorized the use of force for human protection purposes without the consent of the recognized government concerned. Although the Council had come close in the past it had never before crossed the line.19 A few days after the adoption of its landmark resolution on Libya, the Security Council unanimously adopted resolution 1975 on Côte d’Ivoire. Having lost an election, the country’s now former president, Laurent Gbagbo, refused to stand down. Following the advice of international election monitors, the Council declared Alassane Ouattarra to be the country’s president and authorized the use of force to protect the civilian population. UN forces already stationed in Côte d’Ivoire as part of the UNOCI operation deployed to oversee an end to the country’s civil war and transition to a new, democratic, government acted alongside French forces to stop the escalating violence, remove Gbagbo, and allow the elected president to take his place at the head of the new government. The Council’s responses to the crises in Libya and Côte d’Ivoire, achieved without a single negative vote, were groundbreaking. They demonstrated a newly found determination to act on the responsibility to protect populations from atrocity crimes, including through the use of force when necessary. But the responses proved highly controversial. Critics complained that NATO and the UN had overstepped their mandates by contributing to regime change, that they had used disproportionate force which increased civilian casualties, and that they had ignored or outright rejected opportunities for further political dialogue. Russia in particular argued that the Libyan experience was a ‘betrayal’ which coloured its thinking on the subsequent crisis in Syria, pushing it to resist Western pressure on the al-​Assad regime on the grounds that it might open the door to forced regime change. The Council has indeed been deadlocked on Syria and has failed to respond adequately to a crisis that has resulted in the deaths of more than 220,000 people and forced in excess of 11 million people from their homes. But controversy over Libya and deadlock over Syria did not inhibit the constructive use of R2P in other contexts. Resolution 1996, adopted in July 2011, established a UN peace operation for South Sudan and called upon the international community to provide assistance to help the new government there to fulfil its responsibility to protect. Resolution 2014, adopted in October 2011, reminded the government of Yemen of its primary responsibility to protect its population. In its September 2011 Presidential Statement on preventive diplomacy, the Council again recalled its commitment to R2P. More recently, resolution 2085 (2012) on Mali

R2P in Theory and Practice    11 authorized an international mission to assist the government there in fulfilling its responsibility to protect, among other things; resolution 2117 (2013) on small arms and light weapons recognized their capacity to result in the commission of R2P crimes, and resolution 2121 (2013) on the Central African Republic underscored the government’s responsibility to protect its own population. At the time of writing, the UN Security Council had referred to R2P in no fewer than 37 resolutions, the UN’s Human Rights Council in some 13 resolutions, and the General Assembly in three resolutions. Most of these resolutions referred to R2P in the context of international responses to major protection crises. In a relatively short space of time, therefore, R2P has been transformed from a concept proposed by an international commission into a common feature of international responses to genocide and mass atrocities. As UN Secretary-​General Ban Ki-​moon observed in 2012, international debate about R2P has moved from a focus on the merits of the principle itself to matters of implementation.20 Organizations and regions once considered hostile to R2P have begun to utilize the norm.21 At the September 2014 General Assembly Sixth Informal Interactive Dialogue on the Responsibility to Protect: Fulfilling our Collective Responsibility, China described R2P as a ‘prudential norm’, argued that ‘states should establish relevant policies and mechanisms’ for implementing it, and noted that it was appropriate for international society to adopt measures to support R2P, including the use of force ‘as a last resort’; India noted that R2P ‘was agreed [upon] by all’ as early as 2005; Indonesia offered emphatic support, saying it ‘fully subscribes to the finest purposes and objectives of the concept of R2P’; Nigeria declared that ‘R2P is apt, based on humanitarian and human rights law, representing a global conceptual and policy shift in the notion of sovereignty and security’; Iran noted that ‘we cannot agree more with the Secretary-​General’ and his approach to R2P; the Philippines observed that ‘we subscribe to our shared responsibility’ in relation to R2P; and Argentina declared that ‘since the beginning, Argentina supports the concept of R2P’.22 These statements—​all from the Global South and including governments considered quite hostile to R2P—​provide strong support for the idea that R2P, once considered deeply controversial, should now be regarded as a norm. This claim about whether R2P is an established international norm is one that remains contentious in the academic literature.23 Without rehearsing the claims and counter-​ claims, one way of moving beyond this faultline is to think about R2P as a ‘regime’. Going back to the classic definition in International Relations, regimes are ‘principles, norms, rules, and decision-​making procedures around which actor expectations converge in a given issue-​area’.24 The regime is nested in the United Nations system where two of its principal organs have shaped its development—​the General Assembly and the Security Council. It is also located in the institutional practices and discursive statements of Member States, regional bodies, and other authoritative groupings. What makes it meaningful to talk about it as a regime is that R2P gives effect to multilateral efforts to establish cooperative arrangements to prevent, contain, or halt genocide and other mass atrocities. A key component of a coordination regime is the stipulation of actors’ roles and responsibilities, and whether these are evenly distributed or differentiated

12    Alex J. Bellamy and Tim Dunne (prompting normative considerations as to how and why responsibilities are shared equally or otherwise). Viewing R2P as part of a larger human protection regime enables the analyst to get beyond excessively narrow causal stories. A myth about R2P that has emerged in recent times relates to the relationship between language and action.25 The fact that relevant international actors do not always directly invoke R2P is not evidence of its absence, any more than its invocation means that it was the only cause to generate a particular outcome. The practices of diplomacy and persuasion are complex and contingent—​more often than not defying the kind of conceptual clarity that analysts strive for. Omissions and modulations occur, sometimes accidentally and sometimes conveniently. An instance of the latter might be when speakers try to avoid backing themselves into a political corner for fear of setting a precedent for future action where the costs/​risks may be sufficiently grave as to change the calculus of decision. Martin Wight once noted wryly that moral theorizing about international politics was often inversely related to diplomatic reality. R2P might be a case in point. Theoretical work seems to be at its most biting in moments when R2P gains greatest traction among practitioners. Whether this hypothesis is right, or even desirable, is open to question. What is not in dispute is that R2P has emerged as a frame for how international society thinks about, argues over, and responds to, genocide and mass atrocities. Whatever else might be said, it is not the case that R2P is irrelevant in the theory and practice of security and diplomacy.

Risks of Relevance Although significant diplomatic and practical progress has been made, it is important to recognize the limits, challenges, and continuing areas of contestation. The precise role that R2P can play in a given situation, like that of any norm or regime, is influenced by a range of other contextual factors and is deeply shaped by politics. As such, variation from case to case is to be expected. What matters in the long term is the extent to which R2P alters underlying patterns of behaviour, an issue addressed by many of the contributors to this Handbook. The status of R2P as a social norm embedded in a wider regime of human protection—​ rather than a legal rule backed by the coercive power of the state—​means there is a need to do a better job of managing expectations.26 The aforementioned limitations are compounded by the fact that outsiders have relatively limited influence on the conflicts that give rise to genocide and mass atrocities. Although concerted international action can sometimes prevent mass atrocities and protect the vulnerable, this capacity to make a difference should not be taken for granted. International efforts can facilitate, support, and improve protection, but they cannot by themselves provide it in any comprehensive fashion, except through the type of massive interventions that are rarely contemplated. As a result, modesty about the capacity of international actors to protect populations from genocide and mass atrocities is required. ‘Ending mass atrocities once and for all’ is

R2P in Theory and Practice    13 a task that will be achieved primarily within states and societies themselves, albeit with international assistance, and not within a short space of time. Moreover, although normative consensus on R2P has progressed apace, there remains profound contestation about its implementation in practice. It is one thing for states to agree on a standard of behaviour and another thing entirely for them to agree on how best to achieve those aspirations both in general and in the face of specific crises. The challenges of implementation are no less daunting than the broader normative questions that preceded them, especially in a context where emerging powers challenge the relative weight of different norms and contest established assumptions about appropriate behaviour. How well these practical challenges are addressed will inevitably shape international society’s normative thinking in the future. The consensus that has emerged on R2P is not permanent and immutable and will be influenced by diplomatic practices. There are a number of important challenges here, each of them a recurrent theme in this Handbook. The most obvious challenge relates to the fact that the use of coercive measures remains deeply controversial and continues to pose questions about the relationship between human protection and international order. This, of course, is not unique to R2P but reflects deep-​seated concerns among states about the use of coercion without consent in any context. A key challenge is to improve the legitimacy and effectiveness of the Security Council’s performance in this area. On this question, R2P finds itself wedged between two positions. One, arising from Libya, holds that the Security Council and states acting on its mandates need to be held more accountable for their actions. The NATO-​led intervention drew sharp criticism from Brazil, China, India, Russia, and South Africa, among others, who complained that the mission overstepped its mandate by pursuing regime change, employing disproportionate force, ignoring or outright rejecting opportunities for political dialogue, and violating the arms embargo mandated by resolution 1970.27 Particularly troubling for them was the Council’s inability to hold NATO accountable. Some argued that these controversies would make it more difficult for the Council to reach consensus on similar cases in the future.28 It is not surprising that as international society becomes more proactive in its pursuit of R2P, demands for political accountability are becoming more significant. As Jennifer Welsh noted, ‘perhaps the biggest drawback of allocating collective responsibility to the Security Council is the lack of clear mechanisms of accountability’.29 Future agreement about the appropriateness of coercive military force against states as a tool of R2P will likely depend upon steps to address questions of accountability. The other critical issue for the Security Council, arising from Syria, stems from calls for it to become more decisive in responding to genocide and mass atrocities and less vulnerable to the use of veto. Calls for veto restraint have gained some traction among states.30 France has led the way on this issue, and in 2013 proposed an informal ‘code of conduct’ to limit the use of the veto in situations characterized by genocide and mass atrocities.31 However, at least three of the permanent five members (China, Russia, and the United States) remain sceptical, meaning that the proposal ‘is likely to remain confined to the realm of theory for the foreseeable future’.32

14    Alex J. Bellamy and Tim Dunne A further set of implementation challenges relates to the political and practical problems associated with marshalling international society’s institutions, capacities, and resources to the goal of protecting populations from genocide and mass atrocities. Politically, the principal challenge revolves around international society’s tendency to privilege states. In practical terms, this makes it much more difficult to advance steps to prevent states from attacking sections of their own populations. An additional political challenge is that R2P remains a relatively low priority for most governments, competing with more pressing security, diplomatic, and international economic concerns. Among the more important practical challenges is overcoming the tendency to see R2P as disconnected from associated programmes of work in areas such as conflict prevention, peacebuilding, the protection of civilians, international criminal justice, and the protection and empowerment of women and girls. Thus far, as both Roland Paris and Paul D. Williams show in their contributions to this Handbook, practitioners and analysts have tended to treat these agendas as ‘solitudes’ within international society, rather than recognizing their mutual interdependence. This has limited international society’s capacity to develop a coherent regime for human protection. Although recent research has begun to break down these barriers, and an inchoate regime of sorts has emerged through practice, there remain powerful institutional preferences for separating the associated programmes of protection noted here. With only a handful of exceptions, therefore, states accept that they have made a commitment to R2P and agree on its principal elements. However, important questions remain about how R2P’s status in international society, how we measure its impact on behaviour, the problems and controversies that arise in the context of its implementation, and the impact that structural changes in world politics—​most obviously, the emergence of new powers in the Global South—​will impact upon the theory, politics, and practice of R2P. The scale and intensity of the challenges facing R2P is not a sign of weakness either with respect to theory or practice. Instead it is evidence of what Edward Luck referred to as the ‘risks of relevance’. Ten years on from the World Summit, many of the diplomats and activists who campaigned for a consensus on R2P would likely have been only too willing to accept the risks that come with relevance.

Notes 1. Walzer 1977, p. 107. 2. See Power 2002. 3. See Bellamy 2012. 4. Dikotter 2010; Yang 2011. 5. Kiernan 2008. 6. Wheeler 2000. 7. Kim 2014. 8. For the best account see Wheeler 2000. 9. Annan 1999a.

R2P in Theory and Practice    15 10. Independent International Commission on Kosovo 2000, p. 4. 11. Annan 1999b. 12. Annan 2002. 13. ICISS 2001. 14. Luke Glanville has shown that responsibility has always been a significant component of sovereignty. Glanville 2013. 15. Ban 2009. 16. For example, the denial of civil rights such as free speech, the right to non-​discrimination, access to justice, employment rights, constitutional rights, and so on. 17. Contrary to some claims, e.g. Pape 2012. See response by Evans and Thakur 2012. 18. Annan 2012, pp. 189–​202. 19. See Bellamy and Williams 2011. 20. UN 2011. 21. See Dunne and Gifkins 2011; High-​Level Advisory Panel 2014. 22. Full statements available at . 23. Contrast Labonte in this volume with Bellamy 2015. 24. Krasner 1982, p. 1. 25. This discussion draws upon Dunne and Gelber 2015. 26. Gallagher, 2015. 27. UN document S/​PV.6531, 10 May 2011. 28. Gifkins 2012. 29. Welsh 2012, p. 110. 30. Blätter and Williams 2011. 31. Bosco 2013. 32. Gowan 2014.

References Annan, Kofi (1999a). ‘Two Concepts of Sovereignty’, The Economist, 18 September. Annan, Kofi (1999b). ‘Annual Report to the UN General Assembly’, 20 September. Annan, Kofi (2002). ‘The Responsibility to Protect’, address to the International Peace Academy, UN Press Release SG/​SM/​8125, 15 February. Annan, Kofi (2012). Interventions: A Life in War and Peace (New York: Penguin). Bellamy, Alex J. (2012). Massacres & Morality: Mass Atrocities in an Age of Civilian Immunity (Oxford: Oxford University Press). Bellamy, Alex J. (2015). ‘The Responsibility to Protect Turns Ten’, Ethics and International Affairs 29(3): 161–​85. Bellamy, Alex J. and Paul D. Williams (2011). ‘The New Politics of Protection? Côte d’Ivoire, Libya, and the Responsibility to Protect’, International Affairs 87(4): 825–​50. Blätter, Ariella and Paul D. Williams (2011). ‘Responsibility Not To Veto’, Global Responsibility to Protect 3(3): 301–​22. Bosco, David (2013). ‘France’s Plan to Fix the Veto’, Foreign Policy, 4 October. Dikotter, Frank (2010). Mao’s Great Famine:  The History of China’s Most Devastating Catastrophe, 1958–​1962 (London: Bloomsbury). Dunne, Tim and Katharine Gelber (2015). ‘Text and Context in the Responsibility to Protect: A Reply to Hehir’, Global Responsibility to Protect 7(2): 225–​33.

16    Alex J. Bellamy and Tim Dunne Dunne, Tim and Jess Gifkins (2011). ‘Libya and the State of Intervention’, Australian Journal of International Affairs 65(5): 515–​29. Evans, Gareth and Ramesh Thakur (2013). ‘Correspondence: Humanitarian Intervention and the Responsibility to Protect’, International Security 37(4): 199–​207. Gallagher, Adrian (2015). ‘The Responsibility to Protect Ten Years On from the World Summit: A Call to Manage Expectations’, Global Responsibility to Protect (forthcoming). Gifkins, Jess (2012). ‘The UN Security Council Divided: Syria in Crisis’, Global Responsibility to Protect 4(3): 377–​93. Glanville, Luke (2013). Sovereignty and the Responsibility to Protect: A New History (Chicago, IL: University of Chicago Press). Gowan, Richard (2014). ‘An Unlikely Push for Security Council Members to Give up Their Veto Power’, Al Jazeera, 24 September. High-​ Level Advisory Panel on the Responsibility to Protect in Southeast Asia (2014). Mainstreaming the Responsibility to Protect in Southeast Asia: Pathway Towards a Caring ASEAN Community, 9 September. Independent International Commission on Kosovo (2000). Kosovo Report:  International Responses, Lessons Learned (Oxford: Oxford University Press). International Commission on Intervention and State Sovereignty (ICISS) (2001). The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre). Kiernan, Ben (2008). The Pol Pot Regime: Race, Power and Genocide in Cambodia under the Khmer Rouge, 1975–​1979 (New Haven, CT: Yale University Press). Kim, Hun Joon (2014). The Massacre at Mt Halla: Sixty Years of Truth Seeking in South Korea (Ithaca, NY: Cornell University Press). Krasner, Stephen D. (1982). ‘Regimes and the Limits of Realism:  Regimes as Autonomous Variables’, International Organization 36(2): 497–​510. Pape, Robert (2012). ‘When Duty Calls: A Pragmatic Standard of Humanitarian Intervention’, International Security 37(1): 41–​80. Power, Samantha (2002). A Problem from Hell: America and the Age of Genocide (New York: Basic Books). United Nations (2011). ‘Effective Prevention Requires Early, Active, Sustained Engagement, Stresses Secretary-​General at Ministerial Roundtable on “Responsibility to Protect”’, Press Release, UN document SG/​SM/​13838, 23 September. United Nations General Assembly (UNGA) (2009). Implementing the Responsibility to Protect: Report of the Secretary-​General, A/​63/​677, 12 January. Walzer, Michael (1977). Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books). Welsh, Jennifer M. (2012). ‘Who Should Act? Collective Responsibility and the Responsibility to Protect’, in W. Andy Knight and Frazer Egerton (eds.), The Routledge Handbook of the Responsibility to Protect (London: Routledge), pp. 103–​14. Wheeler, Nicholas J. (2000). Saving Strangers:  Humanitarian Intervention in International Society (Oxford: Oxford University Press). Yang, Su (2011). Collective Killings in Rural China During the Cultural Revolution (Cambridge: Cambridge University Press).

Pa rt  I I

H I STORY

Chapter 2

Hum anita ria n Intervention i n t h e Nineteenth C e nt u ry Davide Rodogno

To the vast majority of nineteenth-​century Western political elites and (elite) public opinion the term ‘humanitarian intervention’ would have been incomprehensible. What sounded bizarre and difficult to grasp was the combination of the adjective humanitarian with the noun intervention. Interventions were a common international practice throughout the nineteenth century; they could be legal or illegal, legitimate or illegitimate. In a world and, more specifically, in a European international system, where war was a regular feature of international relations, coercive interventions were not an exceptional phenomenon. For instance, the Holy Alliance, signed in Paris in September 1815 by the governments of Russia, Austria, and Prussia, was based on the principle that its members would intervene to protect the government threatened by internal disorders. The idea of protection in international relations and the idea of a responsibility to protect are certainly not an invention of the early twenty-​first century. The history of how the adjective ‘humanitarian’ ended up qualifying a specific kind of intervention is the purpose of this chapter. Before discussing the core of this matter, one should dispel any idea of the ineluctability or teleological narrative about the intertwining of ‘humanitarian’ with intervention. First of all the term ‘humanitarian’, for the first 50–​60 years of the nineteenth century had a derogatory meaning in English as well as in French. Second, even after the 1860s, and just like today, humanitarian meant different things to different groups of people. In countries like Great Britain and France ‘humanitarian’ was something generally related to anti-​slavery campaigns. It was a term happily used by campaigners, very reluctantly used by governmental authorities and policy-​makers, and hardly used by the military. In the late nineteenth century, British and French activists who promoted the independence of Balkan nations used ‘humanitarian’ abundantly. So did all sorts of newspapers and magazines. ‘Humanitarian’ was the preferred adjective of relief groups, secular and

20   Davide Rodogno faith-​based, of charities, and of international associations, the ancestors of today’s non-​ governmental organizations (NGOs). Some of these groups were active at the domestic level, others, like the International Committee of the Red Cross or the Quakers were active transnationally. In this chapter I  intend to explain why, throughout the nineteenth century, by humanitarian interventions, European political, juridical, and academic elites meant interventions against massacre, interventions to end atrocities or extermination of a specific group of people, Ottoman Christians. I wish to explain that these interventions were biased, selective, and limited ratione personae and ratione loci. Of course, when one examines these interventions from the perspective of the intervening states—​which is only one of a multitude of possible perspectives—​one cannot fail to notice that they had mixed motives. Discarding genuine motives a priori for an excess of cynicism would be a gross mistake; equally wrong would be a face-​value analysis of contemporary documents asserting the purity, altruistic, and disinterested nature of such interventions. The idea of an unsolicited and unrequested coercive diplomatic and/​or armed reaction—​or intervention—​against massacre undertaken by a state or a group of states inside the territory of a target-​state crystallized during the last 25 years of the nineteenth century. However, European (and US) policy-​makers, international lawyers, academics, and pundits had different views on the relevance of jurisprudential cases and on their admissibility, legitimacy, and possible legality. Not surprisingly, the target-​state as well as the victims of massacre held different views on the duties, rights, or responsibility to intervene or to protect. Nevertheless, Western policy-​makers and academics, specifically those that came from or lived in Great Britain or France, agreed on something: they deemed interventions upon the ground of humanity (or interventions d’humanité), as an international practice that would not qualify as peaceful relations but was not exactly a war. If unsolicited, this act interfered in the internal affairs of a sovereign state and violated its domaine reservé. Target-​states of interventions—​mainly the Ottoman authorities, for reasons that I will elaborate on in what follows—​put forward this argument systematically. To this objection European—​intervening—​powers did not respond directly. They did not contest it. They preferred to expand on the specific and unique objective of the intervention, and, de facto, they refrained from escalating the intervention into a full-​fledged war, insisting on the temporary and exceptional nature of the measures they would or had undertaken. The official motivation of this kind of intervention was to end massacre, atrocity, and extermination or to prevent the repetition of such events. Such a motivation brought about the hotly debated issue of the responsibility—​moral, political, legal, or otherwise—​to intervene; and the issue of the limits of such responsibility. There was one point on which all parties involved tacitly agreed. The literature, official documents, and deeds I have examined do not refer to the possibility of preventive protection of potential victims of massacre. Nineteenth-​ century interventions were an ex post facto event whose objective was to protect civilian populations grossly mistreated by the target-​state government, agents, or authorities. Another preliminary point worth mentioning is that, in this specific geopolitical context, the adjective ‘humanitarian’ referred to the idea of ‘saving strangers’,1 of helping

Humanitarian Intervention in the Nineteenth Century    21 victims, of protecting foreign, apparently innocent, civilian populations. The practice of protecting nationals abroad existed and was well-​established in the nineteenth century. This chapter does not deal with humanitarian relief related to natural disasters and does not examine instances of military interventions to protect a state’s own nationals from abuse, which was an established practice in the nineteenth century. This was the case in 1900 when the European powers undertook an armed intervention in China to repress the Boxer Rebellion. Their primary goal was to protect European nationals, not Chinese citizens. The intervention resulted in the protection of Europeans and of a number of Christian Chinese from slaughter. In the process, hundreds of thousands of innocent as well as combatant Chinese were killed by the expeditionary corps, and many women were raped en route to Beijing. Nonetheless, a thorough investigation into the history of the concept of the responsibility to protect should not leave aside natural disasters and the protection of a state’s own nationals. I believe that connecting the international and the domestic would reveal many things about the ways philosophical, moral, and later political ideas about protecting and saving developed and intertwined with ideas related to the role and responsibility of the state. The preceding paragraphs have delineated the perimeter of this controversial international practice. I will now explore it more closely from the perspective of the intervening governments, the European ‘great’ powers, more specifically Great Britain and France. These two powers, together with Russia, were more actively involved than Austria (Austria-​Hungary between 1867 and 1918) and Prussia (Germany since 1870)  in the interventions that took place from 1815 to 1914. The European powers (the intervening states) pretended to be aiding humanity when they undertook coercive actions against the Ottoman Empire (the target-​state) to end the massacre of Ottoman Christian populations. The story told from this vantage point first reveals that European powers systematically held the role of the intervening states; they decided the parameters, purpose, and duration of the intervention according to rules they felt comfortable with. Second, the Ottoman government and its local authorities systematically were in the position of the target-​state; they could only play the role of the perpetrators, and were held responsible, by the European governments, campaigners, pundits, and academics, of reprehensible—​horrific or barbarous, two adjectives often used at that time—​massacres and other atrocities. Here I do not wish to enter the debate of whether or not this was the case. There is abundant evidence that other local populations committed massacres on a vast scale against Ottoman Christian populations and that the Ottoman authorities were unable or unwilling (a terminology I deliberately use, for it refers to the theme of this Handbook) to protect them. Historians have studied the case of the massacres of Armenians in the 1890s in detail. Because of its political and military weakness, when confronted by the European powers acting unanimously, the Ottoman government could hardly fight on a foot of equality. And there was no international tribunal where the matter could be discussed in a fair and just way. Third, victims of atrocities and massacre often realized that intervention meant rescue and, for quite understandable reasons, they were in favour of muscular intervention, which very seldom happened. When intervention took place,

22   Davide Rodogno victims would not be part of any diplomatic negotiation between the Ottoman Empire and the European powers. The latter’s sympathy with Ottoman Christians remained superficial and marked by hierarchical visions of race and ethnicity. Fourth, Christian religion seems to have a played a crucial role in triggering these interventions. It is worth mentioning that the bulk of the information that reached European capitals, the ministries as well as the newspapers, was the same. European observers—​very often missionaries—​and diplomats reported on them. It was on the basis of those accounts, which might have been accurate or inaccurate, biased or impartial, detailed or vague, that European governments decided whether or not to undertake an intervention to save strangers. Finally, the reader of this chapter will have realized that I have deliberately refrained from making any reference to ‘massive violations of the most basic human rights’. Such terminology was not invoked during the nineteenth century. After 1945, we commonly refer to it when dealing with war crimes, crimes against humanity, genocide, and ethnic cleansing. None of these legal concepts existed during the nineteenth century.2 This equally applies to the terms ‘mass atrocity crimes’, ‘mass atrocities’, and ‘mass crime’.3 On the contrary ‘massacre’, ‘atrocity’, and ‘extermination’ were three terms commonly used during the nineteenth century. Of course, the concept of rights, including natural rights, stretches back centuries. Judaism, Christianity, and Islam, for example, justify helping others based on charity and their belief that all humans are created in God’s image.4

Before the Nineteenth Century The idea of a duty or responsibility to help strangers did not emerge ex abrupto during the nineteenth century. During the Spanish conquest of America, Francisco de Vitoria put forward the principle of the ius defendendi innocentes a morte iniusta, which in his view was a humanitarian war permissible and just. It was a war waged in the name of the innocent against the tyranny of native leaders or laws, a tyranny consisting, for instance, of the sacrifice of innocent men or even of the killing of innocent men in order to eat them.5 Such a justification, Tzvetan Todorov argues, did not derive from reciprocity: even if this rule were applied to Indians and Spaniards alike, it was the latter who decided on the meaning of the word ‘tyranny’. The Spaniards, unlike the Indians, were subject and judge of the decision since it was they who selected the criteria according to which the judgement would be delivered. Spaniards decided that human sacrifice was the consequence of tyranny and they had a right to intervene to stop it; they also decided that massacres of local populations they undertook were perfectly legal and legitimate.6 This ‘civilizational’ asymmetry was very evident in the nineteenth century, when the European powers defined what was (and was not) a massacre and when an intervention could or could not take place. After de Vitoria, Alberico Gentili and Hugo Grotius discussed the moral duty to aid and to wage a war on behalf of the oppressed subjects of another sovereign when

Humanitarian Intervention in the Nineteenth Century    23 the oppressed were powerless.7 During the seventeenth and eighteenth centuries, the prevailing idea among legal scholars was to restrict the grounds for legal intervention of a state in the internal affairs of another.8 By the beginning of the nineteenth century, the principle of non-​intervention in the domestic affairs of another sovereign state had become central in relations between European states. Nineteenth-​ century theory and practice of humanitarian intervention expanded on the edge of this very fundamental pillar of international relations. For the European powers, the Ottoman Empire was beyond the pale of civilization. This ‘despotic’ regime was not ‘civilized’ enough to share the rights and duties of international law. Europeans excluded that empire from the ‘Family of Nations’. As a consequence, the sacrosanct rule of non-​interference in its internal affairs did not apply (or partially applied) to it; therefore, humanitarian intervention became permissible (not necessarily legal or illegal) because of that empire’s particular status. This is one of the reasons why hasty assimilation of nineteenth-​century interventions with today’s intervention leads to some mistakes, including denying that concealed civilizational asymmetries still exist today. Regarding the late eighteenth-​century droits de l’homme et du citoyen, historian Samuel Moyn convincingly argues that they meant something different from today’s human rights. Those rights were part and parcel of battles over the meanings and entitlements of citizenship and depended on national borders for their pursuit, achievement, and protection.9 Nineteenth-​century British and French cultivated elites included the right to life, property, equality before the law, and religious freedom among the natural rights of humanity. Some thinkers argued in favour of the universality of these rights, but none of the rights was universally protected through mechanisms of international enforcement. Arguably, humanitarianism and humanitarian intervention lie alongside the concept of the rights of man, although it would be wrong to draw hasty conclusions or misleading views of human rights in the nineteenth century. One should also be cautious about generalizing nineteenth-​century humanitarian movements and their connection with humanitarian interventions. Throughout the nineteenth century humanitarianism cut across political orientations and was associated with religious and political projects as diverse as Quaker pacifism, Protestant evangelicalism, missionary projects, European imperialism, and movements promoting the self-​determination of Balkan populations. The array of activities included under the label ‘humanitarian practices’ was diverse and ranged from charitable actions on behalf of poor people to full-​scale military intervention. Interconnections between domestic, imperial, transnational, secular, and faith-​based projects and movements, and those who were actively involved in promoting interventions against massacre in the Ottoman Empire show that global movements such as Save Darfur which came about when the doctrine of Responsibility to Protect was endorsed by the United Nations (2005) are not as new as they pretend to be, despite using technologies, such as the Internet and social networks unknown to their nineteenth-​century predecessors.

24   Davide Rodogno

The Abolitionist Campaign: A Meaningful Precedent The campaign in favour of the abolition of the slave trade and of slavery, with its domestic, transnational, and international dimensions, projected humanitarian actions beyond national boundaries. This campaign and humanitarian interventions are closely connected. First, the abolitionists gave birth to the politics of pressure groups, including mass petitions, the publication of magazines and tracts, the holding of public meetings, appealing to public opinion, and founding of voluntary societies.10 Humanitarian interventions’ campaigners would use the same techniques. Second, the military operations undertaken by the British Royal Navy were the outcome of domestic political actions of influential pressure groups such as the Clapham Sect (or Clapham ‘saints’ as contemporaries derisively tagged the sect), led by William Wilberforce.11 Reformers succeeded in arousing sympathy and awakening moral qualms so powerfully as to mobilize political action that, though certainly coloured by self-​interest, actually led to actions on behalf of people who were ‘other’ in the fullest sense.12 The role of public opinion was acknowledged in the 1815 public declaration of ministers of the principal European powers who regarded the African slave trade, ‘by just and enlightened men, in all ages, as repugnant to the principles of humanity and of universal morality’. They mentioned that ‘the public voice in all civilised countries’ demanded the suppression of slavery, and that the universal abolition of it was ‘conformable to the spirit of the age and the generous principles of the allied powers’.13 If, in the case of the abolition of the slave trade, campaigners and pressure groups were successful, in many other instances, throughout the nineteenth century, they would fail to exert sufficient pressure on national governments. Third, military operations to suppress the Atlantic and Indian Ocean slave trade were the result of international agreement. As we know, the Royal Navy acted upon an international mandate. Similarly, nineteenth-​century humanitarian interventions would be the result of an agreement between all the intervening states. Naval campaigns, like successive armed interventions, had very limited objectives and were biased and selective in several ways. For instance, the trade in slaves and slavery was not universally banned. The British government limited the military action of its navy to the abolition of the trade in slaves, not slavery itself.14 The British government had the slave trade trafficking labelled as piracy, making the slaves ‘contraband’ (i.e. property) and justifying its actions because maritime rights governing commerce enabled it to seize and board ships sailing under non-​British flags suspected of carrying contraband slaves. The British navy undertook international policing actions against pirates rather than against a target-​ state. The scope of the military action was limited, with the exception of the destruction of the port of Algiers in 1816 to end the white slave trade in the Mediterranean Sea.15 Throughout the nineteenth century, there would not be a single intervention on behalf of African slaves on the African or American continents. British and other European

Humanitarian Intervention in the Nineteenth Century    25 governments did not regard black, non-​Christian Africans as human beings whose rights should be protected in the same way as those of suffering Christians.

Instances of Nineteenth-​C entury Humanitarian Interventions Thus far, I have pointed out that the doctrine of the just war, the idea of a right to life for each individual, the practice of international police action, and the organization of pressure groups and other philanthropic societies having humanitarian purposes all existed in the nineteenth century. What was specific to the international concept and practice of humanitarian intervention during that century, when nationalism rose, during the heyday of imperialism, of the struggle for mastery in Europe and beyond? Under what circumstances, if any, did the European powers consider massacre of foreign civilian populations sufficient motive to undertake a military operation? Can we find examples in the nineteenth century where states looked beyond their own territorial and colonial borders, beyond their own immediate economic and security interests, beyond realpolitik, to demonstrate that by acting to halt or avert new or continuing massacre and atrocity they indeed had ‘purposes beyond themselves’?16 It is difficult to give a straight answer to these questions. When the First World War started, a juridical doctrine of humanitarian intervention, though still debated and controversial, had been established. It referred to a jurisprudential corpus that by then was almost a century old. Among cases of humanitarian intervention or interventions d’humanité, European and US international legal scholars and political scientists listed the intervention of the European powers in Greece of 1827; the interventions in Syria and Lebanon of 1860–​1; some of them referred to the intervention in Crete of 1866–​8 and of the late 1890s; others included the intervention in Ottoman Macedonia of 1903–​8. Late nineteenth-​century European policy-​makers would have agreed with such a jurisprudential list of cases, which does not necessarily mean that the adjective ‘humanitarian’ adequately describes the nature of any of these interventions. Of course, the intervening states had mixed motives, which triggered (or did not trigger) these interventions. Political leaders, state agents, and policy-​makers saw saving the lives of strangers as an act of ‘moral capital’.17 They followed domestic political concerns (i.e. the decision of leaders and policy-​makers to act according to the demands of public opinion), notwithstanding whether policy-​makers empathized with the victims of massacre.18 As David Forsythe points out, states care about their international reputation, and ‘moral’ behaviour reinforces a positive reputation at home and abroad. Indeed ‘moral policies’ may compel further ethically motivated behaviour not originally envisaged by the state. In this way, a humanitarian morality can become politically useful and can reshape state interest in unintended ways.19 This might be said to have happened during the nineteenth century when interventions undertaken by European powers were selective and

26   Davide Rodogno biased, directed to only saving the lives of a particular group of people (i.e. Ottoman Christians) and ignored the sufferings of other populations (Muslim populations living in Greece, in Crete or the Druze of Lebanon).

The Target-​State and the Victims of Massacres The list of alleged instances of humanitarian intervention demonstrates that the target-​ state was always the Ottoman Empire and the rescued strangers were always Ottoman Christian populations. During the period 1815–​1914, the rationale for these interventions and the parameters of the discourse were inextricably bound up with the European perception of the Ottoman Empire and geopolitics pertaining to that region of the world, what the Europeans referred to as the ‘Eastern Question’. Throughout the nineteenth century, the European powers increasingly saw the Ottoman Empire as under their tutelage. To prevent or cure internal disorders in the empire, these powers took two self-​interested solutions into consideration: its dismemberment (a radical remedy impossible to enforce for various reasons) or its ‘modernization’ through the implementation of reforms. The European powers increasingly deemed the Ottoman authorities as being unwilling or unable to implement the reforms they had suggested or tried to impose and viewed that Empire as a ‘rogue’ or ‘failed’ state, as some policy-​makers would put it in today’s parlance. In urgent cases, for instance when violent counterinsurgency campaigns undertaken by the Ottoman authorities led to disturbances and massacre, the European powers authorized themselves to intervene militarily within the Ottoman borders. The intervening states established a causal relation between the outburst of uncontrolled or ‘savage’ violence taking place in one or the other provinces of the empire and the alleged failure to implement the ‘good-​government’ reform programmes they kept submitting to the Ottoman authorities. The European powers held the Ottoman authorities responsible for having failed to protect the lives of Ottoman (Christian) citizens; more importantly, they considered that disturbances and massacres threatened peace in Europe. As self-​appointed guardians of the system known as the ‘European Concert’, they felt responsible for its preservation. Prominent international legal scholar Lassa F. Oppenheim argued that humanitarian interventions were dictated ‘no less by sentiments of humanity than by the interest for tranquillity in Europe’.20 The European powers determined the existence of a given threshold (quantitative, the number of people slaughtered, and qualitative, the way they were killed, the kind of atrocities perpetrated against them) beyond which a massacre might trigger intervention. A host of criteria, systemic and local, domestic and international, ratione personae or ratione loci, determined whether or not a humanitarian intervention would take place. According to the intervening governments, and I am wondering whether today things have changed, the most important factor was not the protection of mistreated

Humanitarian Intervention in the Nineteenth Century    27 civilian populations (i.e. Ottoman Christians), but the compatibility of the intervention with the maintenance of peace in Europe. European powers’ peace and security had more weight than the right to life of Ottoman Christian populations. To put it in simple terms, if the intervention could lead to a war between the European powers, it would not take place; if this was not the case, coercive action, including armed intervention, against the target-​state with the purpose of ending massacre might take place. The tension between collective security and the responsibility to protect victims of massacres (and other violations of the most basic human rights) has clearly not disappeared today and, in my view, produces contradictions, inconsistency, and hypocritical justifications for interventions and non-​interventions alike.

Collective and ‘Disinterested’ Interventions When examining nineteenth-​century humanitarian interventions from the perspective of the intervening states, it becomes apparent that they were carried out collectively: this was the case in Greece (1827–​8); in Lebanon (1860–​1); in Crete (1866–​8 and in 1896–​ 1900); and in the Ottoman provinces of Macedonia (from 1903 to 1908). The European powers also collectively decided not to intervene on behalf of the Bulgarians (1876) and of the Ottoman Armenians (during the massacres of the 1890s, of the early 1900s, and of 1911), despite evidence of the massacres perpetrated on a massive and unprecedented scale. Before undertaking the intervention, European powers usually reached a collective agreement guaranteeing the ‘disinterested’ nature of the intervention. Disinterested meant that none of the European powers would seek any unilateral advantage, such as territorial conquest, through their military action. The military operation was not an act of self-​defence, nor did it lead to a permanent military occupation or to a peace treaty signed with the target-​state (which distinguished it from an act of war against the target-​ state). As Gary Bass maintains: The great powers had to convince each other that their purported mercy mission was not just a foil for imperial expansion. So the intervening states had to impose limitations on themselves. There were a number of established techniques of self-​ restraint:  delineating [the] sphere of justifiable intervention for each of the great powers, delegating to regional powers, putting time limits on humanitarian interventions, restricting the size of the military force, foreswearing diplomatic and commercial advantages from a humanitarian mission, and, above all, multilateralism. All of these devises helped make humanitarian intervention safer.21

This is certainly correct. At the same time it is worth mentioning that the intervening states decided about the humanity to be protected and disregarded; they decided about massacres to ignore or to consider for intervention. Furthermore, potential intervening

28   Davide Rodogno governments weighted their self-​interest against the possibility of reaching a collective agreement. This explains why none of the powers were ready to risk a war to save mistreated Armenian civilian populations, despite the considerable public agitations that took place in many European capitals and cities on their behalf in the late nineteenth century. If and when the European powers agreed on the terms of the intervention, they saved strangers from massacre, though Europeans often intervened too late. This was the case in Greece, when Navarino was irrelevant; it was the case in Lebanon, when the Ottoman authorities and imperial troops restored peace and tranquillity before the French troops landed in the late summer of 1860. It was also the case in Crete both in 1866 and at the turn of the century, when the naval operations and a few marines were not necessarily prepared to protect civilian populations. The European powers’ interventions were biased and selective; political compromise ended up in inconsistent military operations; ‘exit strategies’—​a common term in today’s parlance—​were often improvised. Unintended consequences of the interventions heavily affected local populations, both Christian and non-​Christian. However, despite all these shortcomings the political solutions the European powers agreed upon with the Ottoman authorities in the case of Greece, Lebanon, or Crete, avoided—​in the short-​and medium-​term—​ further massacres taking place.

Differences and Analogies between Humanitarian Interventions and the Capitulations To some contemporaries, the idea of protecting the right to life of a restricted group of Christian co-​religionists was reminiscent of the Crusades; to others it was the consequence of the Capitulations.22 In the late 1890s, in a very detailed study, the dragoman of the French Embassy in Constantinople, Georges Outrey, admitted that to some extent the origins of humanitarian interventions could be found in the Capitulations system. Outrey admitted that the Eastern Question was born as a religious question and turned into a political question which remained intimately connected to its religious aspects. Since the beginning of the nineteenth century, Outrey argued, that foreign intervention on behalf of Ottoman Christians, which at its origin was based on concession particulières (i.e. the Capitulations), transformed itself into something different, a ‘humanitarian intervention’.23 The Capitulations and intervention against massacre in the Ottoman Empire shared the idea of protecting Christians ruled by a ‘despotic’ and ‘barbarian’ government. The Capitulations were supposed to guarantee security and avoid discrimination against European nationals and protégés in ordinary times. Interventions against massacre were supposed to protect an entire Ottoman Christian community from becoming victims of massacre and atrocities at an exceptional time. The occurrence of massacres reinforced the idea held by European diplomats and policy-​makers that as

Humanitarian Intervention in the Nineteenth Century    29 long as the Ottoman Empire remained ‘uncivilized’ and therefore unable to protect the rights of European residents and European protégés, the Capitulations should be maintained or even broadened.24 On various occasions, those who campaigned in favour of armed intervention to end massacre often made use of the rhetoric of the Crusades. They interpreted the Capitulations as a guarantee of the protection of fellow Christians from the ‘Infidel’ encompassing a right of humanitarian intervention.25 However, in times of massacre, both European policy-​makers and diplomats refrained from claiming that the Capitulations gave a right of interference in the Ottoman Empire’s internal affairs to protect Ottoman Christians. International legal scholars shared the same view and never deemed the Capitulations as legal ground giving the European states a right to intervene upon grounds of humanity. As British legal scholar Robert Phillimore put it, the question of a right of ‘religious intervention’ in the affairs of ‘an Infidel State on behalf either of Christians generally, or of a particular body of Christians’ did not exist.26 European international legal scholars as well as policy-​makers were fully aware that the nature of the protection the Capitulations offered to specific groups or individuals had nothing to do with undertaking a military intervention on their behalf.27 Furthermore, whereas the Capitulations were unilateral, diplomatic, non-​forcible acts, humanitarian interventions were coercive, often armed, and generally collective actions. The Capitulations were intended to protect nationals living abroad and groups of local protégés, whereas humanitarian intervention was intended to end massacre. The Capitulations—​and more particularly the abuses the Europeans made out of these treaties—​were the consequence of European imperial rivalries and one of many means to increase the political, cultural, religious, and economic influence of a single power in a given area of the Ottoman Empire, whereas collective humanitarian undertakings in which each power exerted some control on the others hindered the clear appearance of self-​interest.

Meaningful Commonalities between Humanitarian and Imperialist Impulses From a theoretical point of view, it is possible to draw clear lines and to define what is or is not humanitarian with respect to an intervention. Everything changes when one looks at real situations, when for instance, humanitarian and imperialist impulses of domestic constituencies tend to coincide. Many humanitarians, who supported imperial expansion at home, shared with European leaders few ‘compunctions about imposing changes on foreign countries’, including the Ottoman territories.28 Any restraint these leaders showed after an intervention had taken place was related to the political complexity of the ‘Eastern Question’ rather than the respect for Ottoman sovereignty. Both humanitarian campaigners and European policy-​makers ignored the appalling record

30   Davide Rodogno of violations of the right to life at home and in their respective colonies and the fact that equality before the law and religious freedom in their own states, let alone colonies, did not exist.29 They wanted the Ottoman government to legislate for equality and citizenship while, in a former Ottoman territory like Algeria, French authorities ruled in a far more intolerant, discriminating, and despotic way than the Ottomans had ever done. Europeans intervened militarily when the ‘barbarous’ Ottomans used the same ‘savage’ methods to repress insurrection they systematically used in their own colonies. This apparently schizophrenic and paradoxical behaviour is explained by the presumption of ‘superiority’ of the European civilization and the alleged ‘benevolent’ and ‘generous’ intentions of European colonizers,30 which justified the despotisme du sabre. According to the Europeans, the Ottomans lacked such ‘generous’ intentions. Hence, massacres of Ottoman Christians were totally unjustified and the European had an obligation—​ moral, political, and/​or legal, according to different views of different authors—​to do something. This obligation was forgotten if the risks of intervention were deemed to be too high by the intervening states.

Public Opinion and Humanitarian Interventions Massacres of Christians aroused the interest of public opinion all over Europe, attracted sustained interest and attained political significance within the societies of potential intervening states. In some circumstances, those concerned found a way to address their concerns at the domestic and eventually at the transnational and international levels. Specific individuals made of the political questions related to solving the recurrence of massacre a priority that lasted beyond initial protests and eventually led to the setting up of organizations or institutional commitment. Every European state, even the autocratic Russian government, had to take public opinion movements into account. In the case of Great Britain, the growth of domestic mass media and faster communication were vital for the Philhellenes, an elite group that in the 1820s campaigned in favour of an intervention against the Ottoman Empire. The same is true for William Gladstone’s campaigners in the 1870s or Phil-​Armenian groups in the 1890s who had access to more newspapers, with bigger circulation and farther reach. Throughout the century the electorate grew, too, which according to Bass meant more pressure on the British government to act.31 The hypothesis that public opinion mattered for each and every intervening state seems very reasonable indeed. However, it should be noted that public opinion could be manipulated, as it was in France under Napoleon III, who strictly controlled the French press in 1860 at the time of the intervention in Ottoman Lebanon. In Freedom’s Battle, Bass claims that freedom at home helped promote freedom abroad, arguing that for the activists who campaigned in favour of intervention, military actions in the Balkans and elsewhere in the Ottoman Empire were intended to promote

Humanitarian Intervention in the Nineteenth Century    31 independence. This claim should be nuanced; European governments were not interested in freeing Balkan or Middle Eastern populations. The majority of European campaigners ignored the issue of bestowing freedom (i.e. independence) or referred to ‘freedom’ as the rights of Christians to be ruled fairly by a government respectful of their lives, their religion, and their equality before the law. On the one hand, new mass media played an increasing role throughout the nineteenth century as an ante litteram CNN. They fostered the undertaking of some humanitarian interventions (i.e. in the case of Greece in the late 1820s or Syria and Lebanon in 1860). On the other hand, on various occasions (i.e. in the case of the Bulgarian and Armenian massacres), despite an impressive mobilization of national and transnational public opinion no intervention took place. Information about foreign atrocities coalesced with the interests and moral concerns of public opinion, and without the media’s interest public opinion would return to worrying about more parochial concerns. However, it remains that when reporters emerged as a distinct professional class with professional standards, humanitarian interventions took place less often than in the early nineteenth century. In my view, nineteenth-​century humanitarian interventions were not necessarily products of increasing democracy, a free press, and the increasing importance of the principle of self-​determination. In fact, the most likely conditions for such an intervention were in the conservative venues of the old Concert of Europe’s diplomacy. The rise of international law doctrines on intervention did not bring about an increase of this international practice for a number of reasons, mainly related to the nature and conditions of the international system in the late nineteenth century. It is precisely because of the centrality of the Eastern Question and the question of the survival of the Ottoman Empire, as a key factor for understanding the history of humanitarian intervention that instances of interventions should be compared and contrasted with instances of non-​intervention. This is what scholars do when looking at recent interventions. They compare and contrast intervention in northern Iraq, ex-​Yugoslavia, and Kosovo with non-​intervention (or belated intervention) in Rwanda or Darfur or, more recently, the cases of Libya and Syria.

Conclusion Nineteenth-​century European political elites and policy-​makers situated and understood interventions in terms of religious and/​or political world-​views that could not admit the indiscriminate killing of a religious community. At the centre of those interventions, one finds the attempt of the intervening states (i.e. the European powers) to respond to the suffering of others, whose ethnic and religious identity mattered.32 In 1908 René Pinon argued that humanitarian interventions were inspired by an abstract religious, philosophical, and humanitarian ideal. During the Crusades, humanitarian intervention aimed to rescue fellow Christians; during the nineteenth century, intervention underwent a major change because of the progressive secularization of politics

32   Davide Rodogno in Europe. However, Pinon admitted, nineteenth-​century humanitarian intervention had not entirely erased the feeling of solidarity among Christian peoples facing non-​ Christian peoples despite the fact that since the French Revolution, le droit des peuples and le droit de l’humanité was included in an older Christian ideal.33 European governments did not consider massacre, atrocity, and extermination of population as a wrong that needed to be redressed. These powers did not undertake coercive intervention against massacre in a systematic way. The widespread sentiment of identity or the empathy of a great majority of Europeans with suffering Christianity mattered as much as a specific perception of the perpetrators of the massacre. The Ottoman authorities and Muslim populations were ‘uncivilized’ anti-​heroes and their indiscriminate killing of Christians corroborated the depiction of the Infidel’s ‘barbarity’. Nineteenth-​century Western humanitarianism was about rescuing fellow Christians, about protecting their right to life, and about the white man’s burden and mission civilisatrice. There was no clear triumph of secular universalism over the boundaries of religion; in this respect nineteenth-​century interventions differ from late twentieth-​and early twenty-​first-century interventions. The international order born after the end of the First World War and the creation of the League of Nations should have brought perpetual peace worldwide. The League of Nations would not have allowed humanitarian interventions undertaken by a self-​ appointed committee of powers allegedly acting in the interest of all members of the Family of Nations.34 In theory, the new intergovernmental organization should have taken on the responsibility of humanitarian intervention as well as the protection of the most fundamental human rights all over the world.35 The new ‘Society of Nations’ should have given the sanction of social solidarity, on an objective basis, to the hitherto purely sporadic, isolated acts of ‘altruistic nations acting as enforcers of the law of nations’.36 Being capable of formulating and enforcing international law, the new Society of Nations should have limited national sovereignty, abolished the inequality of states, and hence prevented such ‘crimes against humanity’ as persecution, oppression, uncivilized warfare, injustice, and the slave trade. In the long term, the League of Nations would have enforced ‘the prevention and control of disease, the reduction of the opium traffic, and the mitigation of suffering throughout the world’.37 In this idealistic view, the League of Nations and its members would have taken on the responsibility to protect humanity. In practice, as historian Mark Mazower points out, the new Society of Nations in Geneva still depended on the same civilizational hierarchies that had underpinned so much pre-​1914 liberal thought.38 Even though ‘half-​civilized’ states such as Abyssinia, Siam, Iran, and Turkey were now members of the League, it pertained only to the ‘civilized nations’ to guide ‘the less, or uncivilized, into the way of national self-​realization’.39 The League of Nations never disposed of the political and military capacity to enforce humanitarian intervention worldwide.40 The ambitious idea of a League of Nations able to select and oversee the work of a single state mandated by the international community, as the agent of the League, to remove ‘unfortunate conditions violative of the most elementary human rights’ never materialized.41 The League of Nations did not provide

Humanitarian Intervention in the Nineteenth Century    33 for an extension of the Mandate System or a ‘policy of state-​building’ in circumstances related to a humanitarian intervention. There was no mechanism entrusting the state members ‘either to assume the burden of the administration of the territory, or to constrain the unworthy sovereign to mend his ways’.42 The newfound international solidarity and increased integration and equality between states as well as the exercise, for the general welfare of humanity, of a new humanitarian intervention were never properly discussed at the League of Nations Council or Assembly. The alleged legality of humanitarian intervention through the development of new and enlightened standards of the social Law of Nations did not become a fruitful means for securing, through the international community, the redress of evils to which previous generations had been indifferent or blind. As Ellery Stowell noted in 1939, the barbarities perpetrated against Jews in several European states showed that intervention against a ‘great’ state was impracticable. Nonetheless, he argued, other means were available and applicable, such as the granting of asylum in missions and consulates. Stowell acknowledged that this measure did not amount to humanitarian intervention and pointed out: Humanitarian intervention was of recent, but very vigorous, growth and tended to bind the whole world closer together in defense of elementary principles of justice. It is as yet a toddling infant that becomes stronger every day with the spread of communications. Even if the great development of national self-​sufficiency and isolation should continue, this growth of humanitarian intervention will undoubtedly still go on, although it may be at a slower pace.43

The extermination of the European Jews and the other horrors of the Second World War proved Stowell’s prediction tragically wrong. Moreover, the 1930s abuses of humanitarian intervention by Fascist Italy in Ethiopia (a war waged with the ‘humanitarian’ aim of rescuing local populations from a ‘barbarian’ government) and by Nazi Germany, which justified the intervention in Czechoslovakia on humanitarian grounds (the protection of the Sudeten German minority mistreated by the Prague government), gave to this international practice a very bad press after 1945.44

Notes 1. Wheeler 2000. 2. Chesterman 2001, p. 30. 3. Sémelin 2007, p. 323; Kenz 2005. Gareth Evans has reintroduced the term ‘atrocity’ in the debate on the responsibility to protect. See Evans 2008. 4. Wilson and Brown 2011, p. 1. 5. Abiew 1999, p. 33. 6. Todorov 1999, pp. 149–​50. 7. Philipson 1933, cited in Chesterman 2001, p.  14; Grotius 1925, cited in Chesterman 2001, p. 15. 8. Vattel quoted in Chesterman 2001, p. 18. 9. Moyn 2010, p. 29.

34   Davide Rodogno 10. Temperley 1974; Colley 2003, pp. 354–​5. 11. The sect was founded in 1782 by Henry Venn, vicar of Huddersfield; Zachary Macaulay, one of the first governors of Sierra Leone, a London merchant, and for 15 years manager of the Evangelical journal The Christian Observer; Henry Thornton, the wealthy banker and Member of Parliament for Surrey; James Stephen, a lawyer; and John Shore, Governor-​ General of India from 1793 to 1799. 12. Wilson and Brown 2011, p. 10. 13. Grewe 2000, pp. 292–​3. 14. The British Empire outlawed the slave trade in 1807. It was only in 1833 that the colonial secretary, Lord Stanley, introduced a bill to abolish slavery in the empire. The abolition of slavery as a domestic institution of property rights was accomplished in each state where it had previously been legal without military intervention by other states. 15. Löwenheim 2003; Thomson 1987, pp. 123–​42. 16. Evans 2008, p. 17, quotes Hedley Bull’s evocative phrase. 17. Kane 2001, p. 7. Political scientist Kane defines moral capital as moral prestige—​whether of an individual, organization, or cause—​in useful service. Moral capital is a resource and derives its worth from its value and utility, from the moment when ‘moral prestige’ is mobilized ‘for the sake of tangible, exterior returns’. The concept of moral capital draws attention to the ways that moral distinction can become a source for power in the world, in the ways that it facilitates and legitimates action. Moral capital sustains and enhances the reputation of an actor or actors. A cause that has earned moral capital itself becomes a source of moral capital for other causes, and the association with people or causes that possess moral capital becomes a strategic benefit for moral standing or moral influence. 18. Kaufmann and Pape 1999. Kaufmann and Pape argue that costly moral international actions related to the abolition of the slave trade and of slavery were an outcome of a domestic cry for moral reform, motivated mainly by parochial considerations; in other words, the fact of saving strangers was not central to ending the slave trade. 19. Wilson and Brown 2011, p. 18. 20. Treaty between Great Britain, France, and Russia for the Pacification of Greece. Signed in London, 6 July 1827. 21. Bass 2008, p. 360. 22. The Capitulations were special commercial, legal, and religious favours originally granted to the Europeans by the Ottoman sultans in an era when there was no difference between Muslim and civil law in the Ottoman Empire. They allowed extraterritoriality for foreign merchants in Ottoman territory, who could organize themselves according to their own laws, except where disputes arose with Ottomans, and as long as their behaviour was not offensive to Muslims. The capitulatory system of legal and economic privileges for citizens of the Christian powers and their Christian clients living in the Islamic state would become a thorn in the Ottoman side, a prime symbol of external interference, compromising Ottoman sovereignty and helping to drive a wedge between Muslims and Christians. Bloxham 2005, pp. 11–​12. 23. Archives du Ministère des Affaires Etrangères Français 1898, pp. 10–​13 and 99–​104. 24. Despagnet 1905, p. 395: ‘La différence absolue de civilisation et de religion entre les peuples chrétiens et les peuples musulmans ou de l’Extrême-​Orient entraîne une telle divergence d’idées entre eux, au point de vue de la morale et du droit, que les premiers n’auraient jamais pu s’astreindre à la législation ni au pouvoir arbitraire et despotique des seconds; aussi, presque tous les gouvernements de l’Europe ont-​ils passé avec ces derniers Etats des

Humanitarian Intervention in the Nineteenth Century    35 traités qui ont pour objet de soustraire, à peu près complètement, leurs nationaux établis dans ces pays à l’influence des autorités locales.’ 25. Wheatcroft 2004, p. 213. 26. Phillimore 1879, vol. 1, pp. 620, 460–​88. See also Shorrock 1976. 27. Lawrence 2003, vol. 1, pp. 254–​8; Fiore 1909, pp. 210–​12. Here Fiore claims that the privilege of extraterritoriality is personal and cannot be extended to the point of covering entire consular districts, in which citizens of various states live protected by the Capitulations. 28. Bass 2008, p. 344. 29. Conklin 1998. 30. Pitts 2005, p. 69; Pitts 2001. 31. Bass 2008, pp. 372–​3. 32. Barnett and Weiss 2008. 33. Pinon 1908, pp. 6–​7. 34. Haggenmacher 1994. 35. Graham 1924, p. 320. 36. Graham 1924, p. 321. 37. Graham 1924, p. 325. 38. Mazower 2006, p. 558. See also Weitz 2008. 39. Mazower 2006, p. 559. 40. Stowell 1939, p. 733. 41. Graham 1924, p. 326, argues that if the United States had undertaken a humanitarian intervention in the Ottoman provinces inhabited by Armenian populations such as it did in Cuba in 1898, such action would ultimately have led to the establishment of something like a type A mandate over those Ottoman provinces, regardless of the existence or non-​ existence of the League itself. 42. Graham 1924, p. 326. 43. Stowell 1939, p. 736. 44. Writing to Prime Minister Chamberlain on 23 September 1938, Hitler noted that ethnic Germans and various nationalities in Czechoslovakia had been maltreated in the unworthiest manner, tortured, economically destroyed, and, above all, prevented from realizing for themselves the right of nations to self-​determination. They were subject to the ‘brutal will to destruction of the Czechs’, whose behaviour was ‘madness’ and had led to over 120,000 refugees being forced to flee the country in recent days, while the ‘security of more than 3,000,000 human beings’ was at stake.

References Abiew, Francis Kofi (1999). The Evolution of the Doctrine and Practice of Humanitarian Intervention (The Hague: Kluwer Law International). Archives du Ministère des Affaires Etrangères Français (1898). Mémoires et Documents, vol. 107: Etudes Pratiques sur le Protectorat Religieux de la France en Orient par Georges Outrey, Consul de Première Classe. Constantinople, 8 September. Barnett, Michael and Thomas G.  Weiss (2008). ‘Humanitarianism:  A  Brief History of the Present’, in Michael Barnett and Thomas G.  Weiss (eds.), Humanitarianism in Question (Ithaca, NY: Cornell University Press), pp. 1–​49. Bass, Gary (2008). Freedom’s Battle:  The Origins of Humanitarian Intervention (New  York: Knopf Doubleday).

36   Davide Rodogno Bloxham, Donald (2005). The Great Game of Genocide:  Imperialism, Nationalism, and the Destruction of the Ottoman Empire (Oxford: Oxford University Press). Chesterman, Simon (2001). Just War or Just Peace? Humanitarian Intervention and International Law (Oxford: Oxford University Press). Colley, Linda (2003). Britons: Forging the Nation, 1707–​1837, 2nd edn. (London: Pimlico). Conklin, Alice L. (1998). ‘Colonialism and Human Rights, a Contradiction in Terms? The Case of France and West Africa, 1895–​1914’, American Historical Review 103(2): 419–​42. Despagnet, Frantz (1905). Cours de Droit International Public, 3rd edn. (Paris: Librairie de la Société du Recueil Général des Lois et des Arrêts). Evans, Gareth (2008). The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Washington, DC: Brookings Institution). Fiore, Pasquale (1909). Il Diritto Internazionale Codificato e la sua Sanzione Giuridica, 4th edn. (Turin: Union Tipografico-​Editrice Torinese). Graham, Malbone W. (1924). ‘Humanitarian Intervention in International Law as Related to the Practice of the United States’, Michigan Law Review 22(4): 312–​28. Grewe, Wilhem G. (2000). The Epochs of International Law: Translated and Revised by Michael Byer (Berlin and New York: Walter de Gruyter). Grotius, Hugo (1925). De jure belli ac pacis [1646]. Classics of International Law, trans. Francis W. Kelsey (Oxford: Clarendon Press). Haggenmacher, Peter (1994). ‘Pensiero Umanitario e Intervento in Gentili’, in Azione Umanitaria ed Intervento Umanitario. Il Parere del Comitato Internazionale della Croce Rossa. Pensiero Umanitario e Intervento Umanitario in Gentili. Atti del Convegno, Sesta Giornata Gentiliana, 17 September (Milan: Giuffré), pp. 20–​45. Kane, John (2001). The Politics of Moral Capital (Cambridge: Cambridge University Press). Kaufmann, Chaim D. and Robert A.  Pape (1999). ‘Explaining Costly International Moral Action:  Britain’s Sixty-​ Year Campaign against the Atlantic Slave Trade’, International Organization 53(4): 631–​68. Kenz, David El (ed.) (2005). Le Massacre, Objet d’Histoire (Paris: Gallimard). Lawrence, Thomas J. (2003). The Principles of International Law, 2 vols., 4th edn. (London: Elibron Classics Replica Edition). Löwenheim, Oded (2003). ‘ “Do Ourselves Credit and Render a Lasting Service to Mankind”: British Moral Prestige, Humanitarian Intervention, and the Barbarity Pirates’, International Studies Quarterly 47(1): 23–​48. Mazower, Mark (2006). ‘An International Civilization? Empire, Internationalism and the Crisis of the Mid-​Twentieth Century’, International Affairs 82(3): 553–​66. Moyn, Samuel (2010). The Last Utopia: Human Rights in History (Cambridge, MA: Belknap Press of Harvard University Press). Philipson, Coleman (1933). Alberico Gentili De jure belli, 1612. Classics of International Law, trans. John C. Rolfe (Oxford: Clarendon Press). Phillimore, Robert (1879). Commentaries upon International Law, 3rd edn. (London: Butterworths). Pinon, René (1908). L’Europe et l’Empire Ottoman: Les Aspects Actuel de la Question d’Orient (Paris: Perrin). Pitts, Jennifer (2001). Writings on Empire and Slavery:  Alexis de Tocqueville, ed. and trans. Jennifer Pitts (Baltimore, MD: Johns Hopkins University Press). Pitts, Jennifer (2005). ‘L’Empire britannique, un modèle pour l’Algérie Française: Nation et civilisation chez Tocqueville et John Stuart Mill’, in Patrick Weil and Stéphane Dufoix (eds.),

Humanitarian Intervention in the Nineteenth Century    37 L’Esclavage, la colonisation et après . . . France, Etats-​Unis, Grande-​Bretagne (Paris: Presses Universitaires de France), pp. 55–​81. Sémelin, Jacques (2007). Purify and Destroy: The Political Uses of Massacre and Genocide, trans. Cynthia Schoch (New York: Columbia University Press). Shorrock, William I. (1976). French Imperialism in the Middle East: The Failure of Policy in Syria and Lebanon 1900–​1914 (Madison, WI: University of Wisconsin Press). Stowell, Ellery C. (1939). ‘Humanitarian Intervention’, American Journal of International Law 33(4): 733–​6. Temperley, Howard (1974). ‘Anti-​Slavery’, in Patricia Hollis (ed.), Pressure from Without in Early Victorian England (London: Arnold), pp. 27–​51. Thomson, Ann (1987). Barbary and Enlightenment: European Attitudes towards the Maghreb in the 18th Century (Leiden: Brill). Todorov, Tzvetan (1999). The Conquest of America (Norman, OK:  University of Oklahoma Press). Weitz, Eric D. (2008). ‘From the Vienna to the Paris System: International Politics and the Entangled Histories of Human Rights, Forced Deportations, and Civilizing Missions’, American Historical Review 113(5): 1313–​43. Wheatcroft, Andrew (2004). Infidels: A History of the Conflict between Christendom and Islam (London: Penguin Books). Wheeler, Nicholas (2000). Saving Strangers:  Humanitarian Intervention in International Society (Oxford: Oxford University Press). Wilson, Richard Ashby and Richard D. Brown (2011). ‘Introduction’, in Richard Ashby Wilson and Richard D. Brown (eds.), Humanitarianism and Suffering: The Mobilization of Empathy (Cambridge: Cambridge University Press), pp. 1–​28.

Chapter 3

The Geno c i de C onvention a nd C ol d War Hum ani ta ria n Intervent i on Tim Dunne and Eglantine Staunton

Writing at a time when the Cold War was nearing its end, R. J. Vincent observed that human rights were ascendant. He delivered this verdict not in a moment of triumphalism, but rather, in a manner which recognized that the passage of human rights needed to find its way in a world of states. While acknowledging that states were not yet ready to agree to a norm where sovereignty could be breached in cases of genocide and other mass atrocities, Vincent argued that ‘the internal regimes’ of all states were now exposed ‘to the legitimate appraisal of their peers’.1 In other words, if a traditional conception of sovereignty meant exclusive jurisdiction over a particular territory, then the traditional conception was now in question at least with respect to actual or potential human rights violators who believed they were immune from external scrutiny and censure. The argument set out in this chapter further develops Vincent’s intuition about norm consolidation during the Cold War. In this volume, Tom Weiss puts forward the conventional view that the end of the Cold War was a key turning point in the evolution of ‘normative and operational developments to prevent and halt mass atrocities’.2 Weiss’s position resonates with dominant accounts in the literature. Nicholas Wheeler’s revered book, Saving Strangers, suggested a significant rupture between the Cold War and post-​Cold War phases in the evolution of a norm of protective intervention. After careful process tracing of the justifications advanced by intervening states, he argues that the cases of northern Iraq, Somalia, Rwanda, and Kosovo were categorically different from Cold War interventions because the former were all justified in humanitarian terms.3 While these claims have a strong evidence base, it is also the case that isolating a small sample of Cold War and post-​Cold War interventions leads all too easily to a point where the acceptability of intervention

Cold War Humanitarian Intervention    39 is over-​emphasized in the present era, just as the pathology of past historical periods is attenuated. This chapter suggests a modification of the ‘turning point’ thesis is in order. We argue that the transition towards the emergence of humanitarian protection norms and their practice associated with the 1990s and 2000s constituted a development of, rather than a transformation in, the moral purpose of states. While it is true to claim that states were reluctant to openly consider modifying the prohibition on the use of force even when there was a moral case for action, it is also the case that there was a consolidation of norms regarding state responsibilities and that these influenced state practice during the post-​1945 period. In addition, it is also important to note that many of the critiques of intervention voiced during the Cold War remain audible today, further suggesting continuities across the 1990 divide are as much in evidence as transformative change (a claim which finds resonances in several other places in the Handbook). In the first section of the chapter, we track how the Cold War has traditionally been seen as a period when human protection norms made limited progress. Due to the weak institutionalization of human protection treaties and the prevailing norms in the UN Charter—​non-​intervention and the prohibition on the use of force—​states intervening without ‘host state’ consent were in breach of international legal rules. Such interventions were regarded as pathological even though there were clear humanitarian effects, as illustrated by the cases of India in Pakistan (1971), Vietnam in Cambodia (1978), and Tanzania in Uganda (1978–​9). But as we argue in the second section of the chapter, the claim that humanitarian intervention was outlawed tends to overlook the extent to which progress was made in consolidating understandings of what counts as criminal conduct on the part of states and the willingness of states and other actors to censure those who perpetrated mass atrocities. Combined with the moral force of scrutiny and censure we find a growing capacity and commitment on the part of multilateral institutions to give effect to human protection.

The Limits of Humanitarian Intervention As intimated above, Weiss argues that the 1990s can be considered as the transition period towards the responsibility to protect (R2P) since it constituted a rupture with the Cold War by allowing ‘important normative and operational developments to prevent and halt mass atrocities’.4 In particular, he argues that the 1990s were a singular decade since it allowed the renewal of the UN Security Council, which led to the broadening of the understanding of what constitutes an international threat to peace and security, and thus to the authorization of coercive humanitarian interventions.5 Additionally, Weiss explains that in contrast to the Cold War era, the interventions were justified in humanitarian terms, were considered as legitimate, and were in majority multilateral.

40    Tim Dunne and Eglantine Staunton Even though the existing literature acknowledges that instances of humanitarian intervention and debates on the legitimacy and legality of intervention had taken place prior to the end of the Cold War,6 the latter is broadly accepted as a turning point,7 to the extent that the 1990s have been described as ‘the golden era’ of humanitarian intervention.8 As Wheeler and Bellamy argue, during the Cold War emphasis was placed on the maintenance of international order particularly when international society had to make a choice between order and justice.9 There is plenty of traction in this particular argument (as we note in what follows); specifically, the combined effect of the lack of institutionalization of human rights standards on the one hand, and the general prohibition on the use of force according to customary law and UN Charter principles.

Weak Institutionalization of Human Protection Norms ‘Never again’. The routine use of these two words by world leaders after 1945 is indicative of the anti-​genocide sensibility that emerged once the true horror of the Holocaust had become widely known. In proclaiming ‘never again’, international society was recognizing that genocide was a crime rather than a historical accident, and moreover, a responsibility to prevent future outbreaks had to be institutionalized. The convergence of great power leadership and the pressure of world public opinion10 led to the incorporation of human rights in the newly minted Charter of the United Nations in 1945. In particular, Article 55 called for the ‘universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’.11 This generic support for universal rights was rapidly complemented by two key documents both adopted by the UN General Assembly in December 1948: the Universal Declaration of Human Rights (UDHR), which represents ‘a common standard of achievement for all peoples and all nations’,12 and the Convention for the Prevention and Punishment of the Crime of Genocide. In considering the internationalization of human rights in the Cold War, the Genocide Convention is particularly noteworthy as it sought to criminalize genocide, just as the Geneva Conventions sought to define war crimes. But in contrast to war crimes, the Convention recognized genocide as ‘a crime under international law’ that can be committed ‘in time of peace or in time of war’.13 It emerged thanks to the work of norm entrepreneur Raphael Lemkin, a Polish-​born Jewish lawyer, who devoted his life to taking a stand against genocide.14 In addition to coining the term in 1944,15 Lemkin played a central role in the emergence of the Convention by lobbying for the General Assembly to pass a resolution that condemned genocide and asked the Economic and Social Council of the UN (ECOSOC) to draft what became the 1948 Convention.16 Despite being an important milestone in the evolution of the human protection regime, the Convention rapidly faced many challenges. Three limitations were evident early on: regarding the definition of the scale of the massacres, the intent of the perpetrator, and the identity of the group that was targeted. All have been significantly debated and contested in the genocide studies literature.17 Yet perhaps the most significant

Cold War Humanitarian Intervention    41 limitation of the Convention was the absence of any provision ‘that recognizes that states must, or even may, intervene to prevent genocide from occurring beyond their borders’.18 Earlier drafts of the Convention came close to setting out an expectation that states ‘shall do everything in their power’ to prevent or halt genocide, but this was diluted by the big three—​the United States, the Soviet Union, and China—​who favoured a more timid formulation whereby the contracting parties would ‘call upon’ the organs of the UN to take action.19 This limitation is a good illustration of the core issue faced by the human rights treaties: their lack of legal standing due to either their clear lack of provisions or their lack of institutionalization. The historian Samuel Moyn reinforces the weaknesses in the human protection regime by pointing to the parallel weaknesses in international legal thought: the post-​1945 period, he claims, was ‘one in which the concept made next to no inroads in the discipline of international law’.20

The Prohibition on the Use of Force This lack of institutionalization of the human protection treaties can partly be explained by the fact that the norm of the prohibition of the use of force in other states’ domestic affairs dominated during the Cold War. It is not uncommon to see competing and contradicting norms emerge at the same time in international society,21 but in this tension between order and justice, order rapidly became seen as predominant. As Thakur explains, this was facilitated by the fact that the UN Charter provides concrete instruments for the maintenance of international peace and security but not the protection of human rights.22 Article 2(4) of the UN Charter affirms that, ‘all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state’.23 Even though this traditional understanding of sovereignty had informed diplomatic practice since the eighteenth century, as Glanville reminds us, ‘it was at San Francisco that the elements of what has come to be understood as the “traditional” meaning of sovereignty were firmly and unambiguously established only for the first time by international society’.24 Only two exceptions were made to the prohibition of the use of force: Article 39 granted the Security Council the right to authorize the use of force ‘to maintain or restore international peace and security’, while Article 51 emphasized the ‘inherent right of individual or collective self-​defence’.25 Authors such as Tesón advance a minority view in which it is claimed that ‘force used in defence of fundamental human rights is [. . .] not a use of force inconsistent with the purposes of the United Nations’.26 For him, a war in self-​defence should also be regarded as a war to restore human rights—​if it is not, then an unwarranted distinction between ‘citizens’ and ‘peoples’ is being made, a distinction which is fundamentally at odds with the universality of human rights. Chesterman regards this logic as flawed. Instead he claims that viewing humanitarian intervention as lawful is a misinterpretation of the UN Charter.27 He contends that, from a legal standpoint, the ‘meaning of

42    Tim Dunne and Eglantine Staunton Article 2(4) is clear: the use of force across borders is simply not permitted. This meaning is supported by the UN Charter’s context, object, and purpose.’28 Consequent upon the formation of the UN Charter, the principle of non-​intervention was regarded as ‘a prohibitive norm’29—​thou shalt not intervene! If any doubt remains regarding the terms of the wording of the UN Charter, additional evidence of the predominance of the prohibition on the use of force was also visible in state practice (both during the few interventions that took place and in the fact that they scarcely occurred), and in the debates that occurred at the UN Security Council and General Assembly. The vice-​like grip of the rule of non-​intervention along with the lack of institutionalization of human protection treaties meant that many genocides and massacres went unaddressed or even unnoticed. Writing in the early 1970s, Franck and Rodley drew attention to the consequences of selective moral indifference: between 150,000 and 400,000 Indonesian leftists were slaughtered without any effective show of international disapproval. The war against secessionist blacks in the Southern Sudan raged for over a decade without provoking much attention, let alone steps in the direction of humanitarian intervention. The decimation of several tens of thousands of Tutsis in Rwanda and [. . .] of much larger numbers of Hutus in Burundi have by turns been ignored and denied. [. . .] The Kashmir and Naga repressions by India have scarcely raised an international eyebrow and the Indians, with impunity, have been able to scorn the one international presence.30

Additionally, when interventions did take place and generated international debates, they confirmed that Articles 39 and 51, the two exceptions to the non-​use of force, were strictly understood and implemented, leaving little leeway for coercive interventions in states’ domestic affairs. In the rest of this section we examine the intervention of India in East Pakistan, Vietnam in Cambodia, and Tanzania in Uganda,31 as they have been presented in the mainstream International Relations literature. They serve as graphic illustrations of the argument that ‘humanitarian intervention had been impermissible during the Cold War’;32 even when such interventions had clear humanitarian effects, they were not justified or understood as being humanitarian.

India’s Intervention in East Pakistan (1971) The tensions between India and Pakistan that led to the December intervention began in March 1971, when the Pakistani civil war broke out. Following the refusal of President Yahya Khan to convene the Parliament after the victory of the Awami League at the December 1970 elections,33 tensions rose in East Pakistan. The government’s response to the campaign of non-​violence and non-​cooperation led by the East rapidly escalated to brutality in March 1971.34 In December 1971, following the bombing of ten Indian military airfields India undertook a military intervention in East Pakistan and recognized the region as the

Cold War Humanitarian Intervention    43 independent state of Bangladesh.35 The intervention had considerable humanitarian effects. As Evans argues, ‘the action was taken primarily to ensure that mass murder and displacement, especially of the Hindu population, would not continue’.36 In the midst of the crisis, India’s representatives expressed, on several occasions, concerns for the abuses of human rights committed by the Pakistani Army. As early as March 1971, the Indian Parliament had described the brutality as ‘amounting to genocide’.37 This concern was reiterated by the Indian Representative during his addresses to the Security Council following the December intervention: on 4 December 1971, Sen stated, ‘We are glad that we have on this particular occasion absolutely nothing but the purest of motives and the purest of intentions: to rescue the people of East Bengal from what they are suffering. If that is a crime, the Security Council can judge for itself.’38 Despite these strong moral sentiments expressed in the highest chamber of the UN system, India nevertheless chose to justify its intervention using arguments of self-​ defence rather than humanitarian claims.39 India asserted a right to self-​defence following the attack on India’s airbases, before arguing that the flow of refugees coming from Pakistan constituted ‘refugee aggression’.40 The logic behind this claim was that the 9–​10 million refugees who had fled into India since the beginning of the conflict constituted a considerable challenge for the Indian government, by creating ‘enormous social and economic tensions in West Bengal’s border areas as well as imposing an “unbearable” economic strain that was costing the exchequer millions every day’.41 These arguments were broadly deemed unconvincing since ‘few countries accepted that the circumstances actually justified India’s claimed use of force in self-​defence’, but what is interesting is that ‘not a single country argued that India had a right to militarily intervene to rescue the beleaguered people of East Pakistan’.42 Therefore, despite Tesón’s claim that the General Assembly’s debate that followed the stalemate at the UN Security Council showed that ‘the majority [of states] implicitly acknowledged that Article 2(4) recedes where acts of genocide are concerned’,43 the general consensus followed Franck and Rodley’s conclusion44 that, following Article 2(7) of the UN Charter, the conflict in East Pakistan fell under Pakistan’s domestic jurisdiction.

Vietnam’s Intervention in Cambodia (1978–​9) Seven years after the intervention in Pakistan, Vietnam intervened in Cambodia in a case that presents strong similarities with India’s earlier intervention. The arrival in power of Pol Pot and the Khmer Rouge in April 1975, along with their programme to ‘purify’ Cambodia, led to the death of between 1 and 2 million people and ‘the broad and systematic violations of rights, such as the right to liberty, freedom from slavery and slave-​like practices, the right to a fair trial, the right to privacy and family life, and the right to freedom of expression’.45 Tensions rapidly expanded to Vietnam since the two states, which had been arguing over their frontiers since the arrival of the Khmer Rouge, began fighting along their borders.46 Vietnam finally intervened in Cambodia in late

44    Tim Dunne and Eglantine Staunton 1978 and by January 1979, the intervention had led to the defeat of the Khmer Rouge and the instalment of the People’s Republic of Kampuchea (PRK).47 In his detailed discussion of the case, Wheeler contends that ‘there is no evidence that Pol Pot’s human rights violations played any part in the decision to invade Cambodia’.48 Yet humanitarian claims could have been used to justify the intervention since it stopped the atrocities of the Khmer Rouge—​a revolutionary Marxist-​nationalist regime which had systematically engaged in torture, deportations, and the liquidation of more than 20 per cent of the population.49 The Vietnamese intervention ended, in Evans’s words, ‘one of the worst sustained mass murders of the twentieth century’,50 leading UN Secretary-​ General Kofi Annan to later legitimize the intervention considering the ‘compelling humanitarian situation’.51 What reasons did Vietnam give for its decision to intervene? As noted above, justifications matter as they ‘are among the enabling conditions’ that make decisions and actions possible.52 Ha Van Lau, the Representative of Vietnam to the Security Council, declared, during a debate in the Security Council (January 1979) to discuss the intervention, that Viet Nam is determined to exercise its right of legitimate defence recognized by the Charter of the United Nations and by international law [. . .]. Viet Nam is determined to repel aggression and to punish the aggressors, to put down the forces that have unleashed this war of aggression against it, so that its enemies will not be able to resume their aggressive activities. That is the sacred right of self-​defence of peoples in the face of aggression.53

Hanoi was aware that this justification would receive strong condemnation considering the disproportionality of the response compared to the threat created by the Khmer Rouge’s attacks.54 Nevertheless, the Vietnamese government chose this script because self-​defence was the only acceptable reason for the use of force at the time. Similar to the India/​East Pakistan case, this intervention can be seen as a testimony of the reluctance of the international community to recognize an exception to the rule of non-​intervention even in the face of large-​scale massacres. In the Security Council debate referred to above, ‘none of the five NATO countries that spoke—​France, Norway, Portugal, the United Kingdom, and the US—​thought that Vietnam’s intervention could have been justified [using a humanitarian claim]. Four of them expressly raised the issue of human rights and said emphatically that even massive violations would not have justified military intervention.’55 This view was shared by the rest of the international community with the exception of the Soviet Union and some of its allies (in particular, the German Democratic Republic, Laos, and Afghanistan).56 Even states such as India, Greece, the Netherlands, and Yugoslavia, which ‘had previously supported humanitarian intervention arguments in the UN, all voted for the [General Assembly] resolution condemning Vietnam’.57 In other words, the international community was not willing to create a precedent, especially since ‘Hanoi’s own human rights record was less than admirable’.58

Cold War Humanitarian Intervention    45

Tanzania’s Intervention in Uganda (1978–​9) The Tanzanian intervention presented strong similarities with the two previous cases but the response of the international community differed considerably.59 Idi Amin’s presidency (1971–​9) was marked by repression and brutality and led to the death of between 100,000 and 500,000 people.60 Although the murders were originally targeted at the Acholi and Langi ethnic groups, which were assumed to be in favour of Milton Obote (the leader who had been overthrown by Amin in 1971), the violence progressively became ‘almost random’.61 The brutality of the government was well documented after the United Kingdom, former colonial power in Uganda, requested the establishment of an international inquiry by the UN Commission on Human Rights in 1977.62 Various international organizations and INGOS (international non-​ governmental organizations), including the Commonwealth Heads of Governments, the World Council of Churches, and Amnesty International, all reported and criticized the broad violations of human rights in Uganda.63 Tanzanian President Nyerere was one of the only leaders of the Organization of African Unity (OAU) to condemn the violence of Amin’s regime and viewed Milton Obote as the legitimate leader of Uganda.64 Tensions between the two states increased in October 1978 when the Ugandan government chased across the border troops that had fled to Tanzania, and when Amin announced the annexation by Uganda of the Kagera region located in the north of Tanzania.65 After declaring that this statement was ‘tantamount to an act of war’,66 Tanzania intervened in mid-​November 1978 in order to push the Ugandan troops back to the frontier. Nevertheless, Amin attempted to annex the region again in December and in January.67 This time, the Tanzanian government did not limit its counter-​attack to the border: on 10–​11 April, Kampala fell and Amin fled into exile.68 The Tanzanian government did not use humanitarian claims to justify the intervention. In fact, ‘it was the new Ugandan regime that invoked humanitarian justifications for Tanzania’s actions’.69 Indeed, even though the intervention led to the end of a dictatorial regime and can thus be seen as meeting ‘the threshold requirements of a legitimate humanitarian intervention’,70 Tanzania implicitly justified the intervention using the rhetoric of self-​defence by presenting Tanzania’s intervention as a defensive counter-​attack.71 According to President Nyerere, there were ‘two wars’ being fought: ‘First there are Ugandans fighting to remove the Fascist dictator. Then there are Tanzanians fighting to maintain national security.’72 In light of this admission, it is not surprising that Finnemore has argued, ‘if territorial issues were the only ones that mattered, the Tanzanians could have either stopped at the border, having evicted Ugandan forces, or pushed them back into Uganda short of Kampala’.73 Consequently, the justification of the intervention on grounds of self-​defence presented strong limitations.74 These cases illustrate the spluttering progress made in relation to turning the sentiments of the UN Charter into a living reality. The ideological rift between East and West was a significant causal factor in the refusal to countenance the use of force to ‘save

46    Tim Dunne and Eglantine Staunton strangers’. This point is made nicely in a pamphlet on humanitarian intervention put out by the Danish Institute of International Affairs: ‘the ideological competition and global confrontation between the two superpowers eroded any possibility of a reconciliation of order and justice’.75 Not only was there a lack of agreement between adherents to liberalism or communism as to the nature of universal values (individual vs. collective; liberty vs. egalitarianism), any attempt to orient foreign policy to further such moral purposes was treated with suspicion. The only universal value that East and West were regularly able to agree on, for the entire Cold War period, was the importance attached to ‘order’. Nowhere was this more evident than inside the chamber of the UN Security Council, where ‘tit for tat’ veto strategies on the part of the two superpowers allowed pathological state behaviour to go unpunished.

Norm Consolidation: The ‘Turning Point’ Revisited Although accurate in arguing that states were reluctant to override the normative prohibition on the use of force for humanitarian purposes, these accounts overlook the consolidation of norms regarding state responsibilities that occurred during the Cold War. By being too wedded to the view of norms as law, these accounts fail to show how social norms of protection evolved. Crucially, without this evolution, the UN Security Council and key states in the 1990s and after would not have been able to advance a more robust R2P agenda. Consequently, to borrow Barnett’s words, the contemporary ‘international humanitarian order’ is not new, but at best ‘part rupture from, part return to, and part continuation of all that came before’.76 Other influential accounts of the evolution of the human rights regime go back much further in history. Glanville is worth quoting at length on this issue: the idea that sovereignty entails a ‘responsibility to protect’ has deep historical roots. Present-​day concepts of ‘sovereignty as responsibility’ and the ‘responsibility to protect’ are too often framed as radical departures from what is alleged to be the ‘traditional’ meaning of sovereignty. The story that is repeatedly told is that sovereign states have always enjoyed unfettered rights to autonomous self-​government and freedom from external interference and intervention. The notion that a state’s enjoyment of these rights should be conditional upon their fulfilling certain responsibilities is considered to be a profound revision of the rules of sovereignty, and in some important senses it is. However, far from being a new idea, the notion that sovereigns have responsibilities for the protection of their populations is one with a long and rich history.77

The Cold War is an important chapter in this long historical story. One dimension that is easy to overlook in this story is the extent to which commitments to both sovereignty

Cold War Humanitarian Intervention    47 and human rights were advocated for, and adopted in, the Global South. After 1945, human rights quickly became the business of international society as a whole, not just a concern in the capitals of core Western states. Arguably, this norm cascade occurred much earlier than some accounts of human rights suggest. This is evident from the ‘decisive’ Latin American contribution to the grafting of human rights principles onto the UN Charter.78 Further, as the wave of post-​war decolonization gathered momentum, the right of self-​determination was coupled with universal human rights rather than displacing them.79 Nowhere was this more evident than at the first Asia Africa Conference held in Bandung in 1955. The opening principle of the Bandung Declaration on the promotion of world peace and cooperation was the ‘respect for fundamental human rights and for the purposes and principles of the charter of the United Nations’.80 Appeal to human rights was a means by which subaltern peoples and their champions in the UN delegitimized colonialism. Postcolonial states, both at the UN and at Bandung, were also strongly disposed to upholding the principle of non-​intervention. It was non-​intervention that safeguarded the independence that had been denied to them by the colonial powers. Acharya expresses this point well when he argues that at Bandung ‘there was no hint of anyone using nonintervention to mask human rights abuses at home’.81 As mentioned previously, considering the internationalization of human rights in the Cold War, the Genocide Convention is particularly noteworthy as it sought to criminalize genocide, just as the Geneva Conventions sought to define war crimes. Despite the limitations mentioned in the first section, it would be mistaken to undermine the significance of the Genocide Convention. To appreciate the force of this argument it is important to distinguish between the social and the legal dimensions of the norm against genocide. In a recently published article, Karen Smith shows how the norm exerted a compliance pull even on governments who were reluctant to acknowledge their responsibility to prevent genocide and punish perpetrators.82 The case study examined by Smith concerns the British government’s response to the committal of atrocities by the Nigerian government in the east of the country (the region known as Biafra). From September 1968 to January 1970, a small observer team was dispatched to monitor whether genocide was happening: this was an initiative that was taken by the British government despite the fact that successive administrations had been ‘lukewarm’83 in relation to the Convention for the previous two decades. There were many issues bearing down on the decision, including arms exporters concerned about a possible embargo, oil companies anxious to protect their access to oil fields, as well as a wider concern for the moral standing of the UK government in the face of mounting evidence that Nigerian government forces committed massacres against the Ibo people. Smith does not claim that the observer mission had an impact ‘on the ground’. Yet the case reveals the trace of the anti-​genocide norm and how it can shape the responses of even the most powerful sovereign states. According to Smith, during this time, the Wilson government ‘clearly felt’ pressure to respond appropriately.84 This illustration resonates with the wider shift that was occurring with respect to how the UN was reframing its mission to maintain international peace and security.

48    Tim Dunne and Eglantine Staunton According to international legal theorist Anne Orford, ‘the idea that the UN has a responsibility to maintain order and protect life in the decolonised world began to take shape with the creation of the United Nations Emergency Force (UNEF) in response to the Suez crisis of 1956 and the UN offer of military assistance to the Government of the Republic of the Congo in 1960’.85 These two interventions constituted a precedent that was pursued throughout the Cold War by the UN under the impulsion of Secretary-​ General Hammarskjöld, in order to preserve peace and security and protect lives. Consequently, by emphasizing the various practices of protection exercised by the UN in the decolonized world, Orford links the origins of R2P back to the Cold War era—​it was precisely the practices of UN interventions that generated the promise of R2P and not the other way around (as is often assumed).86 The struggle against the apartheid system of rule in South Africa provides further weight to the view that the Cold War matters to R2P because of the changing character of statehood. South Africa is not a classic case in the literature because there was no single atrocity that triggered a call to intervene; however, apartheid was, at its core, an intention to degrade and exclude a people on the basis of their ethnicity and identity—​ and these processes of exclusion were often violent and prolonged. What is striking about the anti-​apartheid struggle was the degree to which international institutions and transnational civil society mobilized to bring down the system. The first multilateral sanctions were imposed by the UN General Assembly in 1962, with powerful Western countries—​the United States, France, Britain—​putting in place bilateral economic sanctions in the mid-​1980s. As a result of these sanctions, and the pariah status that accompanied them, the white minority National Party abolished apartheid and oversaw a transition to a new system of democratic governance. The significance of this example is the power of the global norm of racial equality and how this completely transformed the domestic political order in South Africa, and in so doing, brought into question the pre-​ existing norm of domestic jurisdiction.87 What emerge from this discussion are several key claims about the human protection journey during the post-​Second World War period. First, we noted how there was a strong emerging consensus on the need to adapt the constitutive rules of international society to include the promotion and protection of human rights—​even if it is also true that sovereign states could negotiate and compromise these norms given their primacy as actors. Second, the absence of supranational governance in relation to key human protection principles, such as the anti-​genocide Convention, did not mean governments could ignore these principles without incurring reputational and other costs. Third, basic human rights continued to be integral not just to the decolonization struggles that were occurring after the end of empire, but were also consistently conjoined with the right to sovereignty and non-​interference. Fourth, linked to this argument, is the increasing enmeshment of the UN in the civil and ethnic conflicts that accompanied the emergence of independent yet fragile states in Africa in particular—​in this respect, international peace and security was increasingly being understood in ways that were only intelligible in relation to claims about the justice and protection of peoples.

Cold War Humanitarian Intervention    49

Conclusion The consensus that prevailed during the Cold War was that coercive intervention was corrosive of international order even when motivated by humanitarian goals.88 Such a view finds support in the three classic cases where armed intervention took place in breach of the non-​intervention principle. All three intervening states were criticized, to varying degrees, for their conduct despite the fact that they could make a strong moral case in defence of their decision to use force. Morally correct? Perhaps; but regarded at the time as being counter to the UN Charter whose foundations are legal rather than moral or political. Alongside the few celebrated cases of intervention that had humanitarian effects, it is important not to underestimate the number of cases during the Cold War where either there was indifference to atrocities committed inside sovereign state boundaries89—​or worse, massacres committed by external powers. Here we note the active perpetration of war crimes and crimes against humanity committed by each of the most significant great powers in the Cold War system—​the United States, China, and the Soviet Union. Western powers committed mass atrocities in Korea, Cambodia, Laos, and Vietnam; while violence was employed by ‘the East’ in China, Cambodia, Albania, North Korea, East Germany, Romania, Bulgaria, Ethiopia, Vietnam, and Yugoslavia.90 Even though the predominance of order over justice was clear, the perpetrators went to great lengths to deny responsibility for the crimes they had committed, and to depict their actions as being in line with civilian immunity by using rhetoric such as the denial of the number of casualties or by the renaming of civilians as insurgents. Bellamy is right to argue that such protestations ‘provide[d]‌counter-​factual validity to the norm itself ’.91 Further validity of the evolution of social norms prohibiting mass atrocities was evident in the UK’s response to the bloodletting in Biafra. The former colonial power was dragged unwillingly into a process of scrutinizing claims that atrocities were being committed. The then UK Prime Minister admitted that the Biafra crisis exacted ‘far more wear and tear’ on his government than any other issue.92 In bringing the social character of norms to the foreground and putting the legal power of norms into the background, this chapter has suggested a more nuanced story about humanitarian protection during the Cold War. The conventional narrative of humanitarian intervention’s illegality is not wrong per se, but it does need to be supplemented by accounts of the development (albeit unevenly) of standards and expectations around responsible sovereignty without which R2P would not have become possible.93

Notes 1. Vincent 1986, p. 152. For a wider discussion of Vincent’s position on intervention and non-​ intervention, see Dunne 1998. 2. See Weiss’s chapter in this Handbook.

50    Tim Dunne and Eglantine Staunton 3. Wheeler 2000. In making this argument, Wheeler puts to good use Quentin Skinner’s argument that justifications matter as they ‘are among the enabling conditions’ that make decisions and actions possible. Skinner 2002, p. 156. 4. See Weiss’s chapter in this Handbook. 5. As this chapter will explain later, the UN Charter states that, in the case of an international threat to peace and security, the Security Council can authorize the use of force. 6. See in particular Simms and Trim 2011; Barnett 2010; and Glanville 2014. 7. See for instance Chandler 2002, p. 21; Barnett 2005, p. 723; Bevir 2007, p. 422; Malone 1997; Walling 2013. 8. Weiss 2004, p. 236. As Glanville notes, it is interesting to see that this shift was reflected in the academic literature: ‘The post-​Cold War era has also seen the study of international relations flooded with literature on humanitarian intervention. It seems every scholar worth their salt has deemed it necessary to assert an opinion on the benefits or costs, legitimacy or illegitimacy, moral responsibility or cultural imperialism, self-​interest or self-​ abnegation inherent in attempts by states to intervene in response to grave violations of human rights in other states.’ Glanville 2006, p. 153. 9. Bellamy and Wheeler 2011, p. 512. 10. For more details, see Clark 2007, pp. 131–​51 and Glanville 2014, pp. 132–​50. 11. United Nations 1945. 12. United Nations General Assembly 1948b, Preamble. 13. See Article 1 of the Convention (United Nations General Assembly 1948a). 14. For a detailed consideration of Lemkin’s role, see Power 2002, pp. 1–​60. 15. Lemkin 1944. 16. Dunne and Kroslak 2000, p. 29. 17. See for instance Fein 1993; Kuper 1981; Shaw 2007. 18. Glanville 2014, p. 148. 19. Glanville 2014, p. 148. 20. Moyn 2010, p. 178. 21. See Finnemore and Sikkink 1998. 22. Thakur 2008. 23. United Nations 1945. 24. Glanville 2014, p. 140. 25. United Nations 1945. 26. Tesón 2005, p. 217. See also Reisman 1984. 27. Chesterman 2001, p. 86. For a full critique of Tesón and Reisman’s respective arguments, see Chesterman’s chapter ‘The Scourge of War:  Humanitarian Intervention and the Prohibition of the Use of Force in the UN Charter’. 28. Byers and Chesterman 2003, p. 181. 29. Glanville 2006, p. 155. 30. Franck and Rodley 1973, pp. 295–​6. 31. This chapter concentrates on these three cases considering that they are often referred to as the classics (see for instance Bell 2007; Wheeler 2000; Finnemore 1996; Garrett 1999; Weiss 2012). Nevertheless, it is important to note that the ICISS identifies ten unilateral interventions that had humanitarian effects between 1945 and 1989 and that were undertaken by states without the consent of the Security Council: Belgium’s intervention in the Congo in 1960, Belgium and the US’s intervention in Stanleyville in 1964, the US’s intervention in the Dominican Republic in 1965, India’s intervention in East Pakistan in 1971,

Cold War Humanitarian Intervention    51 France and Belgium’s intervention in Shaba Province in 1978, Vietnam’s intervention in Cambodia in 1978, Tanzania’s intervention in Uganda in 1979, France’s intervention in Central Africa in 1979, the US’s intervention in Grenada in 1983, and the US’s intervention in Panama in 1989. ICISS 2001, pp. 49–​67. 32. Walling 2013, p. 2. 33. The League was in favour of the autonomy of East Pakistan. 34. Wheeler 2000, pp. 56–​7. 35. ICISS 2001, p. 55. 36. Evans 2008, p. 23. Even though disagreements remain in terms of India’s intent, Wheeler explains that the intervention ‘meets the minimum requirements of a legitimate humanitarian intervention’. Wheeler 2000, p. 55. 37. In Wheeler 2000, p. 57. 38. UNSC 1971, pp. 17–​18. 39. Thakur 2008. 40. UNSC 1971, p. 15. 41. Wheeler 2000, p. 58. 42. ICISS 2001, p. 56. 43. Tesón 2005, p. 250. 44. Franck and Rodley argue that ‘the Bangladesh case, although containing important mitigating factors in India’s favour, does not constitute the basis of a definable, workable, or desirable new rule of law which, in the future, would make certain kinds of unilateral military interventions possible’. Franck and Rodley 1973, p. 276. 45. ICISS 2001, p. 57. 46. Wheeler 2000, p. 80. 47. Finnemore 1996, pp. 179–​80. 48. Wheeler 2000, p. 105. 49. Kiernan 2008, pp. 456–​7. 50. Evans 2008, p. 24. 51. Annan 1999. 52. Skinner 2002, p. 156. 53. UNSC 1979b, p. 13. 54. Franck 2003, pp. 217–​18. 55. ICISS 2001, p. 58. See UNSC 1979b and 1979c for the declarations. 56. ICISS 2001, pp. 59–​60. 57. Finnemore 1996, p.  180. The UN General Assembly debate was concluded, on 14 November, by the adoption of ‘the ASEAN-​inspired Resolution 34/​22 by a vote of 91–​21–​29, calling for the immediate withdrawal of foreign forces from Cambodia and appealing to all states to cease interfering in its internal affairs. Although not mentioned by name, the intention was to censure Vietnam, the only country with forces in Cambodia.’ ICISS 2001, p. 61. 58. Franck 2003, p. 218. 59. In contrast to the intervention in Vietnam, the international community’s response to the Tanzanian intervention was very limited to the point that it was never discussed by the Security Council or the General Assembly (Wheeler 2000, p. 122). The intervention was debated at several occasions by the OAU; no condemnation was made (ICISS 2001, p. 62). This can partly be explained by the fact that Nyerere was seen as being honourable and gave ‘an honest, straightforward, and consistent account of Tanzania’s actions’,

52    Tim Dunne and Eglantine Staunton and ‘Uganda was beyond the periphery of the East–​West rivalry’ (ICISS 2001, pp. 62–​3). Therefore, the fact that neither of the great powers had competing security interests in the conflict meant that the latter did not receive much attention from the international community (Wheeler 2000, p. 123). 60. ICISS 2001, p. 61. 61. Omara-​Otunnu 1987, p. 138, quoted in ICISS 2001, p. 61. 62. ICISS 2001, p. 61. 63. ICISS 2001, p. 61. 64. Wheeler 2000, p. 112. 65. ICISS 2001, p. 61. 66. Keesing’s Contemporary Archives 1979 in ICISS 2000, p. 61. 67. ICISS 2000, pp. 61–​2. 68. Chesterman 2001, p. 77. 69. Finnemore 1996, p. 179. 70. As Wheeler argues, ‘Nyerere did not follow the Vietnamese in explicitly employing the language of self-​defence, but he was clearly intent on presenting Tanzania’s action as a legitimate defensive one.’ Wheeler 2000, p. 132. 71. Wheeler 2000, pp. 119–​20. 72. Quoted in ICISS 2001, p. 62. 73. Finnemore 1996, p. 179. 74. See Wheeler 2000, pp. 120–​1; Franck 2003, p. 219; Tesón 2005, pp. 236–​7. 75. Danish Institute of International Affairs 1999, p. 34. 76. Barnett 2009, p. 5. 77. Glanville 2014, p. 1. 78. Clark 2007, p. 139. 79. Reus-​Smit takes on this claim made by historian Samual Moyn. See the discussion in Reus-​Smit 2013, pp. 152–​3. 80. Bandung Declaration, 1955. 81. Acharya 2014, p. 410. 82. Smith 2014. 83. Smith’s term (2014, p. 248). 84. Smith 2014, p. 258. 85. Orford 2011, p. 3. For further information on these interventions, see Bellamy et al. 2004. 86. Orford 2011, p. 2. In her terms, ‘the significance of the responsibility to protect concept lies not in its capacity to transform promise into practice, but rather in its capacity to transform practice into promise, or deeds into words’. 87. Klotz 1995. 88. Bull 1984, p. 3. 89. Franck and Rodley 1973, pp. 295–​6. 90. Bellamy 2012, pp. 160–​299. 91. Bellamy 2012, p. 221. 92. Wilson 1971, p. 558. 93. The authors would like to acknowledge the very helpful feedback on an earlier draft provided by Alex Bellamy, Luke Glanville, and Kimberly Nackers.

Cold War Humanitarian Intervention    53

References Acharya, Amitav (2014). ‘Who Are the Norm Makers? The Asian-​African Conference in Bandung and the Evolution of Norms’, Global Governance 20(3): 405–​17. Annan, Kofi (1999). ‘Transcript of Press Conference by Secretary-​General Kofi Annan at United Nations Office at Geneva, 26 January’. . Barnett, Michael (2005). ‘Humanitarianism Transformed’, Perspectives on Politics 3(4): 723–​40. Barnett, Michael N. (2010). The International Humanitarian Order (New  York and London: Routledge). Bell, Duncan (2007). ‘Humanitarian Intervention’, in Mark Bevir (ed.), Encyclopedia of Governance (Thousand Oaks, CA: Sage Publications). Bellamy, Alex J. (2012). Massacres and Morality: Mass Atrocities in an Age of Civilian Immunity (Oxford: Oxford University Press). Bellamy, Alex J., Paul D.  Williams, and Stuart Griffin (2004). Understanding Peacekeeping (Malden, MA and Cambridge: Polity Press). Bull, Hedley (1984). Intervention in World Politics (Oxford: Clarendon Press). Byers, Michael and Simon Chesterman (2003). ‘Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law’, in J. L.  Holzgrefe and Robert O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge: Cambridge University Press), pp. 177–​203. Chandler, David (2002). From Kosovo to Kabul: Human Rights and International Intervention (London: Pluto Press). Chesterman, Simon (2001). Just War or Just Peace? Humanitarian Intervention and International Law (New York: Oxford University Press). Clark, Ian (2007). International Legitimacy and World Society (New York: Oxford University Press). Danish Institute of International Affairs (1999). Humanitarian Intervention: Legal and Political Aspects (Copenhagen: DUPI). Dunne, Tim (1998). Inventing International Society:  A  History of the English School (Basingstoke: Macmillan). Dunne, Tim and Daniela Kroslak (2000). ‘Genocide: Knowing What it is that We Want to Remember, or Forget, or Forgive’, International Journal of Human Rights 4(3): 26–​46. Evans, Gareth J. (2008). The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All (Washington, DC: Brookings Institution). Fein, Helen (1993). Genocide: A Sociological Perspective (London: Sage). Finnemore, Martha (1996). ‘Constructing Norms of Humanitarian Intervention’, in P. J. Katzenstein (ed.), The Culture of National Security: Norms and Identity in World Politics (New York: Columbia University Press), pp. 153–​85. Finnemore, Martha and Kathryn Sikkink (1998). ‘International Norm Dynamics and Political Change’, International Organization 52(4): 887–​917. Franck, Thomas M. (2003). ‘Interpretation and Change in the Law of Humanitarian Intervention’, in J. L.  Holzgrefe and Robert O.  Keohane (eds.), Humanitarian Intervention: Ethic, Legal, and Political Dilemmas (Cambridge: Cambridge University Press), pp. 204–​31. Franck, Thomas M. and Nigel S. Rodley (1973). ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force’, American Journal of International Law 67(2): 275–​305.

54    Tim Dunne and Eglantine Staunton Garrett, Stephen A. (1999). Doing Good and Doing Well (Westport, CT: Praeger). Glanville, Luke (2006). ‘Norms, Interests and Humanitarian Intervention’, Global Change, Peace & Security 18(3): 153–​7 1. Glanville, Luke (2014). Sovereignty and the Responsibility to Protect: A New History (Chicago, IL: University of Chicago Press). International Commission on Intervention and State Sovereignty (ICISS) (2001). The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty:  Research, Bibliography, Background (Ottawa:  International Development Research Centre). Kiernan, Ben (1996). The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975–​79 (New Haven, CT: Yale University Press). Klotz, Audie (1995). Norms in International Relations: The Struggle against Apartheid (Ithaca, NY: Cornell University Press). Kuper, Leo (1981). Genocide: Its Political Use in the Twentieth Century (New York: Penguin). Lemkin, Raphael (1944). Axis Rule in Occupied Europe:  Laws of Occupation, Analysis of Government, Proposals for Redress (Washington, DC:  Carnegie Endowment for International Peace, Division of International Law). Malone, David M. (1997). ‘The UN Security Council in the Post-​Cold War World: 1987–​97’, Security Dialogue 28(4): 393–​408. Moyn, Samuel (2010). The Last Utopia: Human Rights in History (Cambridge, MA: Belknap Press of Harvard University Press). Orford, Anne (2011). International Authority and the Responsibility to Protect (Cambridge and New York: Cambridge University Press). Power, Samantha (2002). A Problem from Hell: America and the Age of Genocide (New York: Basic Books). Reisman, W. Michael (1984). ‘Coercion and Self-​Determination: Construing Charter Article 2(4)’, American Journal of International Law 78(3): 642–​5. Reus-​Smit, Christian (2013). Individual Rights and the Making of the International System (Cambridge: Cambridge University Press). Shaw, Martin (2007). What is Genocide? (Cambridge: Polity Press). Simms, Brendan and D. J. B. Trim (2011). Humanitarian Intervention: A History (Cambridge and New York: Cambridge University Press). Skinner, Quentin (2002). Visions of Politics, volume 1:  Regarding Method (Cambridge: Cambridge University Press). Smith, Karen E. (2014). ‘The UK and “Genocide” in Biafra’, Journal of Genocide Research 16(2): 247–​62. Tesón, Fernando R. (2005). Humanitarian Intervention:  An Inquiry into Law and Morality (Ardsley, NY: Transnational Publishers). Thakur, Ramesh (2008). ‘Humanitarian Intervention’, in Thomas Weiss and Sam Daws (eds.), The Oxford Handbook on the United Nations (Oxford: Oxford University Press), pp. 387–​403. United Nations (1945). Charter of the United Nations. . United Nations General Assembly (1948a). Convention on the Prevention and Punishment of the Crime of Genocide. . United Nations General Assembly (1948b). The Universal Declaration of Human Rights. .

Cold War Humanitarian Intervention    55 United Nations Security Council (UNSC) (1971). 1606th Meeting:  4 December. . United Nations Security Council (UNSC) (1979a). 2108th Meeting:  11 January. . United Nations Security Council (UNSC) (1979b). 2109th Meeting:  12 January. . United Nations Security Council (UNSC) (1979c). 2110th Meeting:  13 January. . Vincent, R.  J. (1986). Foreign Policy and Human Rights:  Issues and Responses (Cambridge: Cambridge University Press). Walling, Carrie Booth (2013). All Necessary Measures: The United Nations and Humanitarian Intervention (Philadelphia, PA: University of Pennsylvania Press). Weiss, Thomas (2004). ‘The Sunset of Humanitarian Intervention? The Responsibility to Protect in a Unipolar Era’, Security Dialogue 35(2): 135–​53. Weiss, Thomas G. (2012). Humanitarian Intervention, 2nd edn. (Cambridge: Polity Press). Wheeler, Nicholas J. (2000). Saving Strangers:  Humanitarian Intervention in International Society (Oxford: Oxford University Press). Wilson, Harold (1971). The Labour Government 1964–​1970:  A  Personal Record (London: Weidenfeld & Nicolson).

Chapter 4

The Tu rbu l e nt  19 9 0s R2P Precedents and Prospects Thomas G. Weiss

A moral and military roller-​coaster ride aptly describes the trajectory of the responsibility to protect (R2P) from the periphery to the centre of international debates in what Gareth Evans characterizes as ‘a blink of the eye in the history of ideas’.1 R2P has taken root so firmly in today’s international normative landscape that it is instructive to explore its immediate post-​Cold War origins in the decade preceding the December 2001 release of the report by the International Commission on Intervention and State Sovereignty (ICISS).2 What were the problems and dilemmas arising from the 1990s that the Commission was trying to resolve? Do they help us to understand the rapid move from the prose and passion of a blue-​ribbon international commission to a mainstay on the public policy agenda? Historians tend to emphasize continuity and political scientists change, but this chapter does both. There were both long-​standing issues and problems that underlay reactions to the experience of the 1990s as well as new solutions and additional complications. As such, this chapter provides a sense of the practical and political problems that animated the development of R2P along with the distance yet to be covered to make mass atrocities an unpleasant memory instead of an ugly and continuing current reality. This chapter begins by summarizing the main crises of that fateful decade and reactions to them. It then analyses the main questions, problems, and controversies that the ICISS sought to address. While R2P has three components—​the responsibility to prevent, to react, to rebuild—​this chapter focuses on reaction, which is what stimulated the Canadian government to convene the ICISS in the first place, and what remains the most critical and contested part of the project. While critics emphasize state responsibility and prevention in the hopes of avoiding military force and finessing controversy, James Pattison reminds readers that ‘humanitarian intervention is only one part of the doctrine of the responsibility to protect, but . . . it is part of the responsibility to protect’.3

R2P Precedents and Prospects    57

Humanitarian Intervention in the 1990s Beginning with the international response in northern Iraq in 1991, the moniker of ‘humanitarian intervention’ led to circular tirades about the agency, timing, legitimacy, means, circumstances, consistency, and advisability of using military force to protect human beings. Two events were seared in diplomatic imaginations—​doing too little too late in the 1994 genocide in Rwanda and purportedly too much too soon in Kosovo. In both cases the UN Security Council failed to act effectively; that reality motivated the Canadian government to convene the ICISS in November 2000. It is instructive to examine the cases of intervention during the fateful 1990s. Many saw the end of the Cold War as catalyzing the rebirth of the United Nations, and the renaissance bore witness to an urge to sort out the problems of civil strife that seemed out of control.4 Throughout the 1990s, unpredictable and diverse UN involvement stretched from Iraq to Bosnia, Somalia to Haiti, Kosovo to East Timor.5 Within the General Assembly, the tensions between intervention and state sovereignty initially revolved around the delivery of humanitarian assistance.6 Already in 1988, resolution 43/​ 131 was a contentious milestone acknowledging that non-​ governmental organizations (NGOs) had a role in deadly domestic disasters. It maintained that humanitarian assistance could and should be provided to vulnerable populations. Hence, states were obliged to grant access. A  number of governments strongly objected because NGOs, which had pioneered cross-​border operations, might interfere in what they considered to be strictly internal affairs. Barely two years later, UN actions in the Persian Gulf launched an expansion of what was called ‘humanitarian intervention’. In the wake of the First Gulf War, the Security Council passed resolution 688 in April 1991. It linked the first Chapter VII enforcement action since the Korean War to the need to respond to Saddam Hussein’s onslaught against Kurdish and Shi’ite populations. The Council characterized the deaths of at least 30,000 people and the flight of some 2 million Kurds and 100,000 Shi’ites as a threat to international peace and security, the justification for all Security Council actions. The resolution insisted that Iraq allow access by international relief organizations to succour beleaguered groups. Previously the Council had taken a comparably expansive view of its jurisdiction to protect human rights in Rhodesia and South Africa against repression by white-​ majority regimes—​seemingly a purely domestic issue if there was one—​but the 1991 resolution authorized far more robust and immediate enforcement of human rights. While the evident trans-​boundary consequences of refugees and disrupted economies weighed heavily in the votes by the non-​Western members of the Council, nonetheless the definition of international peace and security expanded to include aspects of what formerly had been considered internal affairs. The invasion of Kuwait was reversed, and then the Chapter VII precedent of ending the Persian Gulf War was cited to authorize

58   Thomas G. Weiss additional military enforcement to protect the Kurds and Marsh Arabs. The use of force represented a dramatic ratcheting-​up of international action over the earlier forms of intervention consisting of economic sanctions against the white-​minority regimes in southern Africa. While resolution 688 did not specifically invoke Chapter VII, authorize the ‘use of all necessary means’, or mandate Operation Provide Comfort and the ‘no-​fly zones’ in northern and southern Iraq, the resolution’s language permitted the US-​led coalition to justify their intervention and respond to an overwhelming humanitarian disaster on the basis of resolution 687 that did. In its wake, the General Assembly passed resolution 46/​182. Behind the scenes was Bernard Kouchner, the founder of Médecins sans Frontières (MSF) and later France’s minister of humanitarian affairs.7 Somewhat surprisingly in light of the war that had preceded and precipitated it, this resolution still gave pride of place to the consent of the state in which the affected populations are located. The most relevant section reads: ‘The sovereignty, territorial integrity and national unity of states must be fully respected in accordance with the Charter of the United Nations. In this context, humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country.’ The implications were wide-​ranging, but debates in the General Assembly focused on military intervention. Not for the last time, the positions of the Global South and North were polarized. State interpretations of the supposed 1991 consensus differed, and subsequent applications of the resolution were controversial. Consent may reflect less the wishes of a government and more severe international pressure—​as arguably was the 1999 case when Indonesia ‘voluntarily’ invited UN-​approved troops to the island of East Timor. Moreover, the government of a state requesting assistance may be disputed—​as was arguably the case in Haiti with the government-​in-​exile of Jean-​Bertrand Aristide that requested intervention after the 1991 military coup headed by General Raoul Cédras. Behind the consensus was an assumption that a state is represented by a government that exercises effective territorial control. If so, it can offer or refuse consent. Where no such government exists, the requirement for consent, by definition, cannot be met, as was the case in Somalia in 1992, where at least a dozen armed factions vied for power, producing more than 1.5 million displaced persons as well as 90,000 deaths due to violence and an additional 200,000–​350,000 due to famine. Furthermore, the phrase ‘in principle’ may, in practice, mean that consent may be subordinated to the necessity to counter an overwhelming human tragedy; or more importantly, perhaps consent from citizens trumps that of governments. Using the absence of consent and prominence of humanitarian criteria to justify humanitarian intervention, nine cases from the 1990s are part of the story that leads to the first gathering of the ICISS in November 2000 and its December 2001 report. Because the UN Charter regime underpins international society, the relevant cases are usefully categorized according to the nature of their authorization under three categories: those authorized by the Security Council under Chapter VII specifically for a UN mission; those authorized by the Council under Chapter VII but delegated to coalitions; and those not initially authorized by the Security Council.

R2P Precedents and Prospects    59 While such a categorization of these nine cases necessarily simplifies history,8 it is worth discussing them in chronological order. From 1990 to 1997 in Liberia, the ECOMOG (Military Observer Group of the Economic Community of West Africa, or ECOWAS) deployed without a Security Council authorization. In Iraq in 1991, coalition forces acted without Security Council authorization and then with it under delegation. In the former Yugoslavia, the UNPROFOR (UN Protection Force in the Former Yugoslavia) deployed under a Chapter VII authorization and was a UN mission, but later both IFOR (Implementation Force) and SFOR (Stabilization Force) were delegated to a Western coalition to act under Chapter VII authority. In Somalia in 1992 and 1993, UNISOM II (UN Operation in Somalia II) was deployed first with a Chapter VII authorization as a UN mission, but its failure led to UNITAF (Unified Task Force), which was a US-​led, delegated operation under Chapter VII. Amidst Rwanda’s genocide in 1994, UNAMIR (UN Assistance Mission in Rwanda) was a failed mission and Opération Turquoise was delegated to France with Chapter VII authority. In Haiti in 1994–​7, the MNF (Multinational Force) was a US-​led coalition with Chapter VII authority. In Sierra Leone in 1997, ECOMOG deployed initially without a Security Council authorization, which was followed by a Council authorization for UNAMSIL (UN Mission for Sierra Leone). In Kosovo in 1999, the North Atlantic Treaty Organization (NATO) deployed without Security Council authorization but was followed after the war by a NATO-​ delegated operation under Chapter VII, KFOR (Kosovo Force). Finally, in East Timor in 1999, the Australian-​led INTERFET (International Force in East Timor) deployed under Chapter VII—​albeit with ‘consent’ extracted by the Indonesian government—​ and was followed by the UNAMET (UN Assistance Mission in East Timor). The details of those operations are too complex to relate in limited space here, but authoritative secondary treatments are available.9 A discussion is desirable, however, of trends from these cases of the 1990s. They help contextualize the reasons driving the establishment of the ICISS:  the motives, justifications, and state interests emanating from these humanitarian interventions. First, all of the international efforts were, according to virtually anyone’s definition, more legitimate than earlier cases. Rather than remaining on the sidelines, the Security Council was involved and, sooner or later, authorized coercion. Unlike earlier examples—​in which the rescue of nationals and self-​defence were the justifications—​ the conscience-​shocking and widespread humanitarian catastrophes in the cases in the 1990s were explicitly mentioned to justify international intervention. Instead of single-​ state military operations, the outside interventions were more multilateral than their predecessors. The decade began and ended with multinational coalitions undertaking high-​ intensity military interventions. In between considerable scepticism was voiced about the utility of using military force to protect human beings. Particularly traumatic were experiences in Somalia—​where UN troops and US soldiers were murdered by warlord Mohammed Aideed’s militias—​and the Balkans, where some 400 military personnel under UN command and control were taken hostage and chained to bridges by Serbian forces in order to prevent NATO air strikes.

60   Thomas G. Weiss It was a decade of profound change for two other forms of intervention as well: economic sanctions and international criminal prosecution. David Cortright and George Lopez labelled the 1990s ‘the sanctions decade’ because the Security Council imposed 12 sanctions regimes, several times more than in the previous 45 years combined.10 As well as being used more frequently, sanctions were also applied more widely, including even against such non-​state actors as the National Union for the Total Independence of Angola (UNITA) and the Khmer Rouge in Cambodia. This frequent resort to coercion occurred even though most observers criticized their political inefficacy, and others lamented their nefarious humanitarian consequences.11 In Haiti, for example, sanctions crippled the economy and increased child mortality, malnutrition, and disease while also fostering conditions for the elite to profit from smuggling. After all was said and done, the arrival of the US 82nd Airborne Division was still required to change the regime. The suffering induced by sanctions came into sharpest focus in Iraq, where an estimated 150,000 excess deaths among children were associated with the sanctions regime. Other analyses, including the authors of a report from the Iraqi government at the time, argued that sanctions caused half a million excess deaths among children.12 Whatever the number, it is not clear that sanctions represent a kinder alternative to deadly force. Ultimately, the Charter’s implied sequence of non-​forcible prior to forcible sanctions may actually have worse humanitarian results. Some called for the application of deadly force sooner rather than later, while others advocated moving towards ‘smart sanctions’ to target leaders while minimizing the impact on vulnerable civilian populations.13 International criminal prosecution was another Chapter VII intervention that, for the first time since the immediate aftermath of the Second World War, was employed to bring justice to those who were responsible for mass atrocity crimes. A number of legal decisions suggest considerable erosion of the rules relating to the immunity of states and their leaders. These have long shielded officials (including retired ones) of a state from being tried in courts in another country for acts committed in their own state and in the exercise of official duties.14 Although the Genocide Convention specifically calls for punishing perpetrators ‘whether they are constitutionally responsible rulers, public officials or private individuals’, state practice overwhelmingly supported the notion of sovereign immunity. The fight to establish limits to impunity received a boost with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) and for Rwanda (ICTR) in 1993 and 1994. Subsequent violence in Burundi, the Democratic Republic of the Congo, East Timor, and Sierra Leone led to calls for additional ad hoc tribunals, and later for the Khmer Rouge’s atrocities of the 1970s. While the tribunals for the former Yugoslavia and Rwanda were entirely international, those for Cambodia, East Timor, and Sierra Leone were hybrids of local and foreign judges with international prosecutors. The pursuit and prosecution of several high-​level criminals from the 1990s spilled into the twenty-​first century. The death of Slobodan Milošević in the dock in The Hague instead of in a luxury suite on the Riviera in 2006 made it seem plausible that perhaps a new era was dawning, especially when Charles Taylor was captured shortly thereafter

R2P Precedents and Prospects    61 and indicted for his crimes in West Africa.15 The ICTR’s 2008 prosecution of a chief architect of Rwanda’s 1994 genocide, Théoneste Bagosora, marked another milestone for international criminal justice, as did the 2011 arrest and extradition of Ratko Mladić, chief of staff of the Bosnian Serb Army, after 16 years of evading arrest for genocide, crimes against humanity, and war crimes. Dictators and military commanders are now aware that there could be international juridical consequences for mass atrocities. Dissatisfaction with institutional shortcomings of both the ICTY and the ICTR demonstrated to many observers the need for a permanent court. Spurred by the events of the 1990s, 120 states participating in 1998 in the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (ICC) adopted the Rome Statute, which entered into force only four years later after the requisite 60 ratifications. Anyone who commits crimes under the statute after 1 July 2002 is liable for prosecution. While some important states (including three permanent members of the Security Council: China, Russia, and the United States) are not parties, international agreement on the independence of the prosecutor and the court’s jurisdiction over civil wars suggests that criminal prosecution could become a more common, rather than an ad hoc, form of intervention as a response to large-​scale atrocities. For instance, Security Council resolution 1564 established the International Commission of Inquiry on Darfur, which concluded that ‘the Government of Sudan has not pursued a policy of genocide’; but it also recognized that ‘in some instances individuals, including Government officials, may commit acts with genocidal intent’.16 That commission identified perpetrators and asked the ICC to prosecute unnamed Sudanese war criminals. Indeed, even the United States, which has adamantly resisted the ICC’s jurisdiction, called upon the court for an interpretation of the violence in Sudan. In 2010 the ICC issued an arrest warrant for Sudanese president Omar al-​Bashir and charged him with war crimes and later three counts of genocide in Darfur. The following year, the chief prosecutor sought an arrest warrant for another sitting head of state, Libya’s Muammar Gadhafi, after the UN Security Council referred the case to The Hague-​based court in the wake of his regime’s brutal repression of protesters. And in Syria, France launched a similar initiative that Russia and China vetoed in May 2014. Questions related to the legality of armed military intervention for humanitarian purposes apply to non-​military intervention as well. The Security Council has the legal capacity both to authorize intervention and to delegate enforcement to regional bodies. Sanctions and embargoes have also been imposed without Council authorization, by regional organizations or single states. The most substantial departure in the post-​Cold War era, however, is the focus here and the reason that the ICISS formulated its 2001 report, namely the Security Council’s willingness to authorize military actions in response to mass atrocities previously shielded behind the exclusive domestic jurisdiction of states. At the same time, the 1990s witnessed no shortage of second thoughts about humanitarian intervention. Euphoria after the Gulf War and the rescue of the Kurds in 1991 gave way just three years later to indifference and the international non-​response to Rwanda’s genocide, mass rape, and millions of forcibly displaced persons. The shift from ‘there’s nothing we can’t do’

62   Thomas G. Weiss to ‘there’s nothing we can do’ was short-​lived because the last year of the millennium was either the annus mirabilis or annus horribilis—​depending on one’s point of view about humanitarian intervention—​because of contested international military actions in Sierra Leone, Kosovo, and East Timor. Two other trends should be highlighted in parsing this turbulent decade. The first relates to the expansion of what constitutes ‘threats to international peace and security’. The most basic transformation is that the Security Council has approached civil wars routinely as threats to international peace and security and thus the trigger for Chapter VII enforcement. This evolution represents a seismic shift, which was virtually inconceivable during the Cold War, when the Security Council customarily did not consider similar violence as constituting such threats. Already by 1995, however, the Appeals Chamber of the ICTY summarized that the ‘settled practice of the Security Council and the common understanding of the United Nations membership in general’ is that a purely internal armed conflict may constitute a ‘threat to the peace’.17 In fact, for the civil war in Angola, the Security Council was prepared to locate such a threat within a non-​ state rebel movement. Substantial flows of forcibly displaced persons have been deemed a threat to international peace and security, which enabled the Council to justify Chapter VII actions to create safe areas and havens in Iraq, the Balkans, and Rwanda. The Security Council’s determination that ‘serious’ or ‘systematic, widespread and flagrant’ violations of international humanitarian law within a country threatened international peace and security undoubtedly would startle the framers of the UN Charter. Resolutions establishing separate international criminal tribunals were also based on domestic abuses—​a stance strongly supported by the International Committee of the Red Cross and other humanitarian agencies.18 Therefore, it is no longer necessary to rely on the trans-​boundary implications of a humanitarian disaster as the determining factor to qualify as an ‘international’ threat that justifies international coercion. The Charter essentially provides powers of self-​definition to the Security Council, but some observers have questioned the ever-​widening definition of international peace and security—​exacerbated in the twenty-​first century when the Council so qualified climate change and HIV/​AIDS. In 1995 the Independent Commission on Global Governance proposed ‘an appropriate Charter amendment permitting such intervention but restricting it to cases that constitute a violation of the security of people so gross and extreme that it requires an international response on humanitarian grounds’.19 But this recommendation became moot because so many precedents had been set by the report’s publication that mass murder and ethnic cleansing clearly qualified as threats to trigger Security Council action. A Charter amendment, in addition to being infeasible, was unnecessary to permit timely decisions about such conscience-​shocking events. The restoration of democracy within a country demands more leeway still. Some looked askance upon Operation Restore Democracy in Haiti as a high-​watermark of activism in the 1990s. The unprecedented 1994 authorization called for the use of force to remove one regime and install another. The most enthusiastic proponents have argued that this foreshadows the emergence of a more general norm of intervention in support

R2P Precedents and Prospects    63 of democracy, a proposition with backing in the amended Charter of the Organization of African States.20 Some scholars argue that the absence of democracy may itself constitute a threat to international peace and security, an extreme form of the ‘democratic peace’ thesis that authentic democracies do not fight each other. Depending on definitions, at least one-​third of the world’s states could be deprived of the protection of Article 2(7) of the UN Charter.21 The ECOWAS intervention in Sierra Leone could also be considered in support of an international norm of ‘pro-​democratic’ intervention. The Security Council’s post hoc approval may be interpreted as a supportive example. Three other cases of pro-​ democratic intervention in the 1990s are not discussed here because they do not fall under a humanitarian heading. Outside military efforts in Guinea-​Bissau (by Senegal, Guinea, and ECOWAS), in the Central African Republic (by MISAB, the Inter-​African Force to Monitor the Implementation of the Bangui Agreements), and in Lesotho (by South Africa and Botswana under Southern African Development Community agreements) suggest that democratic governance may be in the forefront of African ‘interventions’. One analyst summarized: ‘While in theory, Western nations purport to have the strongest democratic traditions, in practice, this emerging norm is taking firmer root in Africa than in any other region.’22 Some consider these expansions less positively. Ambiguous resolutions and conflicting interpretations of them, most notably for the operations against Iraq throughout the 1990s and for the Kosovo War in 1999, may have undermined the substantive provisions of the Charter’s collective security system. They may have also contributed to facilitating actions in advance of Security Council authorization, or indeed without it.23 The second major trend relates to the UN’s long-​standing organizational limitations and the concomitant use of multinational forces, or the dependence on ‘coalitions of the willing’ and ‘subcontracting’ for deadly force. In fact, the expansion of the Council’s activities has been accompanied by the absence of any meaningful expansion of UN operational military capacities to meet the growing demands to protect civilians. The provisions in Charter Article 43 about Security Council military enforcement presume the existence of agreements with Member States to make forces available to the Council ‘on its call’. Those who are not steeped in UN history may be surprised to learn that such agreements have never been concluded, and that Chapter VII has never been applied according to the strict terms of Charter Article 42. Yet the Security Council has repeatedly authorized states to use ‘all necessary means’ (code-​words for overwhelming military force), in the legitimate application of its Chapter VII powers. Similar language is relevant for the delegation of authority to regional organizations under Chapter VIII as well. Security Council enforcement is limited to situations in which states have the political will to bear substantial financial and human costs. For humanitarian interventions, the division of labour resulting from the experience of the 1990s highlights the chasm between what the UN has pioneered—​traditional peacekeeping with the consent of the belligerents—​and more contested peace enforcement. It also makes clear the lack of military-​protection capacities for tasks falling between Chapter VI-​and-​a-​half and

64   Thomas G. Weiss Chapter VII. Experience and evidence suggest, for instance, that unease and a lack of military doctrine for demilitarizing refugee camps, or creating safe havens that are truly safe, or delivering food and medicine over the objections of belligerents, result in scaling-​back combat-​capable troops willing to employ deadly force rather than scaling-​ up blue helmets. Distinctions that were blurred in the 1992 An Agenda for Peace became clearer in the 1995 Supplement to ‘An Agenda for Peace’.24 They became clearer still at the end of the turbulent 1990s with recommendations from the 2000 Panel on UN Peace Operations: the United Nations should concentrate on peacekeeping and civilian administration while others should undertake robust military deployments.25 The loose, or sometimes non-​ existent, connections between UN authorization and Member State enforcement can be problematic. As Victoria Holt noted, ‘Of the four organizations outside the UN which can offer intervention forces—​NATO, the EU, the AU and ECOWAS—​none has an easily identifiable concept of operations for civilian protection.’26 The UN’s delegation of authority by subcontracting to coalitions of the willing or to regional arrangements has thus been a solution27 but raises concerns about the use of Council authority to enhance the legitimacy of the foreign policy objectives of powerful states. In spite of second thoughts, the deployment of military means to foster humanitarian values remained a serious albeit contested policy option as a result of the experiences of the 1990s. Martha Finnemore summarized the changes since the nineteenth century:  ‘States now entertain claims from non-​white, non-​Christian people who previously would not have registered on their consciousness, and, when they intervene, they will do so now only multilaterally with authorization from an international organization.’28 The widely differing views about what types of mass murder, displacement, and rape require and justify the deployment of outside military force set the stage for deliberations by the ICISS beginning late in 2000. Sometimes reality runs ahead of norm consolidation—​UN-approved interventions in northern Iraq and Somalia were long before any consensus about the legitimacy of humanitarian justifications for ‘the use of military force for human protection purposes’ (the official mouthful by the ICISS to avoid the moniker of ‘humanitarian intervention’). Sometimes reality lags behind norms—​ observing Syria’s abattoir and doing nothing in spite of R2P is a recent illustration.

Issues Faced and Finessed by the ICISS Determining whether, when, where, and why to intervene to protect civilians caught in the cross-​hairs of war and violence increasingly is guided by R2P. With the exception of Raphael Lemkin’s advocacy for the 1948 Genocide Convention, no idea has moved faster or farther than R2P in the international normative arena. Formulated in a 2001 report with that title by the ICISS, friends and foes alike point to the Commission’s central conceptual contribution and value-​added:  reframing sovereignty as contingent

R2P Precedents and Prospects    65 rather than absolute.29 The authors aimed to halt mass atrocities by invoking a three-​ pronged responsibility—​to prevent, to react, to rebuild. Unlike most other high-​level commissions, this one was demand-​and not supply-​driven; and it had a narrow focus. So its recommendations have had an immediate public-​policy impact rather than, as ICISS co-​chair Evans remarked, been ‘consigned directly to bookshelves or hard drives and forever thereafter unread and unremembered’.30 Growing from the experience of the 1990s, the ICISS faced and finessed three main issues: the nature of state sovereignty; the unease in much of the Third World about intervention even if, or perhaps especially if, preceded by the adjective ‘humanitarian’; and the veto power of the five permanent members of the Security Council. Judging the actual level in the R2P ‘glass’ is a task that is best left to the reader.

Nature of State Sovereignty The central insight and main tactical advantage of R2P is that state sovereignty is conditional; it entails duties not simply rights; and it permits a conversation about the limits of state power even with the most ardent defenders of sovereign inviolability. After centuries of largely looking the other way, sovereignty no longer provides a licence for mass murder in the eyes of legitimate members of the international community of states. Every state has a responsibility to protect its own citizens from widespread killings and other gross violations of their rights. If any state, however, is manifestly unable or unwilling to exercise that responsibility, or actually is the perpetrator of mass atrocities, its sovereignty is abrogated. Meanwhile the responsibility to protect civilians in distress devolves to other states, ideally acting through the UN Security Council. This notion of a dual responsibility—​internal and external—​drew upon pioneering work by Francis Deng and Roberta Cohen about ‘sovereignty as responsibility’ in framing the protection of internally displaced persons.31 They along with the ICISS were joined by the High-​Level Panel on Threats, Challenges and Change, UN Secretary-​General Kofi Annan, and the World Summit32 in underlining the need—​ indeed, the responsibility—​of the international community of states to come to the rescue of war victims. The UN was mandated since its creation to make good on Franklin D. Roosevelt’s 1941 pleas for ‘freedom from fear’. Deploying military force is an option after alternatives have been considered and failed. Military intervention to help the vulnerable is restricted, however, by the World Summit’s agreed paragraphs to cases of ‘genocide, war crimes, ethnic cleansing and crimes against humanity’—​or the shorthand ‘mass atrocities’.

Third World Recalcitrance That R2P was actually a clever repackaging of humanitarian intervention—​another Trojan horse for Western imperialism—​retained traction as an epithet. It is no secret

66   Thomas G. Weiss that many sceptics, especially in the Global South, remain uneasy about intervention, for humanitarian or any other purpose. The debate after the Security Council’s authorization in 2011 to take action against Libya—​especially the theatrical huffing and puffing about ‘regime change’ not having been authorized by the no-​flight zone—​was reminiscent of the high-​voltage and high-​decibel criticism that greeted R2P’s emergence a decade earlier as well as reactions in the 1990s. For instance, in August 2009 on the eve of the first of what have become annual interactive dialogues on the topic in the General Assembly, The Economist reported that R2P opponents ‘have been busily sharpening their knives’.33 The opening jeremiad by the Nicaraguan president of the General Assembly, the former Maryknoll priest Miguel d’Escoto Brockmann, called it ‘redecorated colonialism’34 and invited Noam Chomsky to harangue delegates. These words resembled those uttered by Algerian president Abdelazia Bouteflika during the UN’s 1999 general debate in the General Assembly. After Annan’s opening salvo of ‘two concepts of sovereignty’,35 Bouteflika retorted: ‘we remain extremely sensitive to any undermining of our sovereignty, not only because sovereignty is our last defence against the rules of an unequal world, but because we are not taking part in the decision-​ making process of the Security Council’.36 Based on the experience in the previous decade, the 2005 consensus at the World Summit was bolstered by restricting the number of triggers to atrocity crimes. As such, R2P provides possible responses to systematic and widespread violations of human rights that deeply offend any sense of common humanity. R2P—​like human rights more generally—​seeks to surmount cultural boundaries and ultimately aspires to universality. By restricting the norm to the most heinous and conscience-​shocking crimes rather than the garden variety of abuses, the 2005 agreement added to the norm’s clarity and advanced its universal aspirations. Most observers agree that R2P’s potential strength, like all norms, is demonstrated by its legitimate use; but its misuse also shows potential power because normative imitation is a form of flattery. As such and again reflecting debates of the 1990s, abusing the norm—​for instance, the United States and the United Kingdom for Iraq in 2003, Russia for Georgia in 2008, and France for Burma in 2008—​helped clarify what it was not.37 R2P was not an acceptable rationalization for the war in Iraq after the original justifications (links to Al-​Qaeda and weapons of mass destruction) evaporated; nor for Moscow’s imperial aims in its weaker neighbour; nor for intervention after a hurricane when the local government was dragging its feet but not murdering its population. Contestation does not necessarily call a norm’s validity into question but rather also can indicate its traction. ‘Contestation should be seen as part and parcel of normative evolution’, writes the UN’s current special adviser on R2P, Jennifer Welsh, and ‘R2P, as an indeterminate and complex norm, is particularly susceptible to these processes.’38 R2P breaks new ground in coming to the rescue because in addition to the usual attributes of a sovereign state encountered in international relations and law courses and in the 1934 Montevideo Convention—​people, authority, territory, and independence—​ there is another: a modicum of respect for basic human rights. The conventional interpretations of privileges for sovereigns have made room for modest responsibilities as

R2P Precedents and Prospects    67 well. If a state is ‘utterly delinquent’, R. J. Vincent pointed out long ago, and ‘laying waste its own citizens’,39 it loses the claim to the right of non-​intervention. Many states (including Russia, China, and parts of the Global South) remain wary about setting aside a key foundational element of international order and the UN Charter that is represented by R2P’s move from the periphery to the centre of international public policy debates. Less benignly, they also want to reserve the right to repress brutally when convenient. On the one hand, the consensus appears to be widening and deepening across the Global South.40 On the other hand, that R2P now has greater resonance is scant solace to victims in Darfur, Sri Lanka, and Syria. Moreover, reluctance, scepticism, and hostility continue to characterize the positions of a handful of naysayers, and moving R2P from soothing statements to more consistent state practice remains an arduous assignment.

Security Council Decision-​Making A perennial problem motivated convening the ICISS, the anachronistic veto. While the ICISS clearly preferred the Security Council’s imprimatur, it did not exclude a Kosovo-​ like operation. But the decision by the World Summit made a Chapter VII decision about R2P a sine qua non. That agreement was hardly surprising, but it is also unsurprising why I have called it ‘R2P-lite’ because in Syria the international community of states is back to Security Council paralysis over Kosovo, one of the ICISS’s points of departure. It is hard not to fast-​forward to contemporary reality. As this book goes to press ten years after the World Summit, there hardly has been too much but rather too little deployment of military force for human protection purposes. The March 2011 military action approved by the Security Council against Libya was the first specifically R2P authorization against a functioning de jure government and the first such use of substantial force since the contested NATO operation in Kosovo. Until Libya, the sharp end of the R2P stick was replaced by skittishness from diplomats, UN staff, scholars, and policy analysts. Libya was a new high-​watermark for R2P, but with high tides come high risks. Few doubted that harsh measures were necessary to forestall a massacre in Benghazi, yet a predictable and feigned chorus of lamentations subsequently arose—​ especially from the Third World with Brazil taking the lead in calling for ‘responsibility while protecting’ (RwP). The controversy continued with Security Council inaction in Syria, where the bloodshed and suffering were far worse than in Libya. R2P has changed the discourse but not political calculations; geopolitics explains concerted action in Libya and inaction in Syria.41

Conclusion: Plus Ça Change This chapter has sought to show readers from where the impetus for thinking about elements of R2P came in the decade before the ICISS published its groundbreaking report.

68   Thomas G. Weiss As a demand-​driven commission—​that is, states were looking for guidance after the tumultuous and inconsistent experiences of the 1990s—​the uptake of the ICISS’s recommendations has been heartening. However, while many challenges impeding effective action have been attenuated, they certainly have not disappeared. Most critically for timely efforts to halt mass atrocities, the Security Council often remains paralysed by the veto; and the most adamant defenders of sacrosanct state sovereignty remain intransigent and unashamed even in the face of mass atrocities. In the abstract, however, R2P consolidated precedents from the 1990s, which means that state sovereignty no longer is absolute but contingent on responsible behaviour. If a government violates international law, and in particular if it permits atrocities or perpetrates abuse, the Security Council may act. But the Council also may not. For political analysts, consistency is a fool’s errand: Syria is not Libya, and Sri Lanka is not Côte d’Ivoire. Political interests vary from case to case. Militarily coming to the rescue for human protection purposes is an unlikely option for democratic states because foreign ventures risking soldiers’ lives with few vital interests at stake remain a tough sell. Unlike the 1990s, today the central challenge of halting mass atrocities is not inadequate normative consensus. The red herring of imperialism is often tossed into the diplomatic pond although, as Michael Walzer notes, ‘it is more often the case that powerful states don’t do enough, or don’t do anything at all, in response to desperate need than that they respond in imperialist ways’.42 There is ample evidence across the Global South to sustain military humanitarianism; indeed, the overwhelming support by countries in the region for outside intervention in Libya and Syria is noteworthy. On occasion, when the politics are right and military resources are available, we can determine not only whether, when, where, and why to protect and assist affected populations but also act upon evidence and convictions. However shocking to the conscience a particular emergency and however hard or soft the applicable public international law, humanitarian space will open and vulnerable civilians will be assisted and protected when political will and military capacity exist. In Libya the moral, legal, political, and military dimensions dovetailed. Rather than speaking truth to power, R2P’s value-​ added is speaking truth with power. In Syria only the moral dimensions are present; and so civilians are slaughtered or flee. Gary Bass has documented that ‘humanitarian interventions are not just a newfangled experiment from the 1990s’,43 but the Cold War’s end made possible UN decisions about international peace and security linked to human protection that were out of the question for the first four-​and-​a-​half decades of the world organization’s history. A key explanation behind the expansion of Security Council activity was the humanitarian ‘impulse’, the visceral desire to help those in life-​threatening distress during armed conflicts. Invariably, such urges have a limited political momentum and a sliding scale of commitments.44 There is no humanitarian imperative because the humanitarian impulse reflects the stark political reality of being able to come to the rescue of some but not all vulnerable populations. When political, humanitarian, and strategic interests coincide, a window of opportunity opens to activate the humanitarian impulse in the Security Council.

R2P Precedents and Prospects    69 R2P advocates may feign surprise, but the humanitarian impulse is the maximum to which the international community of states can aspire. Governments have given it meaning more often since the end of the Cold War than earlier. Lest the ideal become the enemy of the good, we should agree that international action in some cases is better than in none. The 1990s and the decade-​and-​a-​half since have witnessed important normative and operational developments to prevent and halt mass atrocities. But politics invariably remain the determining factor. While Steven Pinker has presented persuasive evidence for a ‘humanitarian revolution’, making ‘never again’ more than a slogan still is not on the side of the angels.45

Notes 1. Evans 2008, p. 28. 2. International Commission on Intervention and State Sovereignty (ICISS) 2001. 3. Pattison 2010, p.  250, emphasis in original. See also Bellamy 2009; Orford 2011; and Hehir 2012. 4. Stedman 1993; Weiss 1993. 5. The history is based on Weiss 2012a, pp. 43–​56. 6. Weiss 1995. 7. Bettati and Kouchner 1987; Bettati 1987. 8. These criteria were absent in outside military operations elsewhere in the 1990s. Some consent was expressed and justified the Russian military efforts in Georgia and Tajikistan and the Commonwealth of Independent States in Tajikistan; and they were not based on explicitly humanitarian justifications. Similarly, three interventions in Africa had the consent of elected governments, but again humanitarian concerns were not paramount: in 1998 in Guinea-​Bissau, efforts were made by the Senegalese and Guinean governments and the Economic Community of West African States; in 1997 in the Central African Republic, Inter-​African Force to Monitor the Implementation of the Bangui Agreements (MISAB); and in 1998 in Lesotho, the efforts by South Africa and Botswana in accordance with agreements of the South African Development Conference. Italy intervened in Albania in 1996 for humanitarian reasons, but with Tirana’s consent. 9. See books written at the time:  Wheeler 2000; Tesón 1997; Durch 1996; Murphy 1996; Abiew 1999; Weiss 2005; and Chesterman 2002. 10. Cortright and Lopez 2000. 11. Weiss et al. 1997. 12. Bessler et al. 2004, p. 7. 13. Fourth Freedom Forum 1999; Cortright et al. 2001; Expert Seminar on Targeting United Nations Financial Sanctions 1998; United Nations Security Council 1999, 2000. 14. The International Law Commission between 1977 and 1986 produced a ‘Draft Convention on the Jurisdictional Immunities of States and Their Property’, which sought to change the then existing rules, including by allowing legal actions against officials who committed crimes. 15. Goldstone and Smith 2015. 16. United Nations 2005a, p. 4.

70   Thomas G. Weiss 17. Prosecutor v. Tadic 1995, para. 30. 18. International Committee of the Red Cross 1993. 19. Commission on Global Governance 1995, p. 90. 20. Chesterman 2002, p. 98. 21. Farer 1993; Brown et al. 1996. 22. Levitt 2001, p. 35, emphasis in original. 23. Cockayne and Malone 2006. 24. United Nations 1995, paras. 77–​80. 25. United Nations 2000. 26. Holt 2006, p. 65. 27. Weiss 1998. 28. Finnemore 2003, p. 3. 29. For interpretations by commissioners, see Evans 2008 and Thakur 2006; see also by research director Weiss 2012a. 30. Evans 2013, p. 289. 31. Deng et al. 1995; Weiss and Korn 2006. 32. United Nations 2004, para. 203; Annan 2005; United Nations 2005b, paras. 138–​40. 33. Evans 2009. 34. ‘Statement by the President of the General Assembly, Miguel d’Escoto Brockmann, at the Opening of the 97th Session of the General Assembly’, 23 July 2009. 35. Annan 1999. 36. Quoted by Newland et al. 2003, p. 37. 37. Badescu and Weiss 2010. 38. Welsh 2013, p. 395. 39. Vincent 1986, p. 115. 40. Mani and Weiss 2011; Serrano and Weiss 2014. 41. Weiss 2012a, 2012b, 2014. 42. Walzer 2011, p. 77. 43. Bass 2008, p. 5. 44. Weiss 2004. 45. Pinker 2011.

References Abiew, Kofi (1999). The Evolution of the Doctrine and Practice of Humanitarian Intervention (The Hague: Kluwer Law International). Annan, Kofi A. (1999). ‘Two Concepts of Sovereignty’, The Economist, 18 September. Annan, Kofi A. (2005). In Larger Freedom: Towards Development, Security and Human Rights for All (New York: United Nations). Badescu, Cristina and Thomas G.  Weiss (2010). ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’, International Studies Perspectives 11(4): 354–​74. Bass, Gary (2008). Freedom’s Battle:  The Origins of Humanitarian Intervention (New York: Knopf). Bellamy, Alex J. (2009). Responsibility to Protect:  The Global Effort to End Mass Atrocities (Cambridge: Polity Press).

R2P Precedents and Prospects    71 Bessler, Manuel, Richard Garfield, and Gerard McHugh (2004). Sanctions Assessment Handbook: Assessing the Humanitarian Implications of Sanctions (New York: OCHA). Bettati, Mario (1987). Le Droit d’ingérence: mutation de l’ordre international (Paris: Odile Jacob). Bettati, Mario and Bernard Kouchner (1987). Le Devoir d’ingérence: peut-​on les laisser mourir? (Paris: Denoël). Brown, Michael E., Sean M.  Lynn Jones, and Steven E.  Miller (eds.) (1996). Debating the Democratic Peace (Cambridge, MA: MIT Press). Chesterman, Simon (2002). Just War or Just Peace? Humanitarian Intervention and International Law (Oxford: Oxford University Press). Cockayne, James and David M.  Malone (2006). ‘Creeping Unilateralism:  How Operation Provide Comfort and the No-​Fly Zones in 1991 and 1992 Paved the Way for the Iraq Crisis of 2003’, Security Dialogue 37(1): 123–​41. Commission on Global Governance (1995). Our Global Neighbourhood. Oxford:  Oxford University Press. Cortright, David and George A. Lopez (2000). Sanctions Decade: Assessing UN Strategies in the 1990s (Boulder, CO: Lynne Rienner). Cortright, David, Alistair Millar, and George A. Lopez (2001). Smart Sanctions: Restructuring UN Policy in Iraq. Policy Brief Series (Goshen, IN: Fourth Freedom Forum). Deng, Francis M., Sadikiel Kimaro, Terrence Lyons, Donald Rothchild, and I. William Zartman (1995). Sovereignty as Responsibility (Washington, DC: Brookings Institution). Durch, William J. (1996). Peacekeeping, American Policy, and the Uncivil Wars of the 1990s (New York: St. Martin’s Press). Evans, Gareth (2008). The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All (Washington, DC: Brookings Institution). Evans, Gareth (2009). ‘Responsibility to Protect: An Idea whose Time Has Come—​and Gone?’, The Economist, 23 July. . Evans, Gareth (2013). ‘Commission Diplomacy’, in Andrew F.  Cooper, Jorge Heine, and Ramesh Thakur (eds.), The Oxford Handbook of Modern Diplomacy (Oxford:  Oxford University Press), pp. 278–​302. Expert Seminar on Targeting United Nations Financial Sanctions (1998). Interlaken:  Swiss Federal Office for Foreign Economic Affairs, Department of Economy, 17–​19 March. Farer, Tom (1993). ‘Collectively Defending Democracy in a World of Sovereign States:  The Western Hemisphere’s Prospect’, Human Rights Quarterly 15(4): 716–​50. Finnemore, Martha (2003). The Purpose of Intervention: Changing Beliefs about the Use of Force (Ithaca, NY: Cornell University Press). Fourth Freedom Forum (1999). Towards Smarter, More Effective United Nations Sanctions (Goshen, IN: Fourth Freedom Forum). Goldstone, Richard and Adam M. Smith (2015). International Judicial Institutions, 2nd edn. (London: Routledge). Hehir, Aidan (2012). The Responsibility to Protect:  Rhetoric, Reality and the Future of Humanitarian Intervention (Basingstoke: Palgrave Macmillan). Holt, Victoria (2006). ‘The Military and Civilian Protection: Developing Roles and Capacities’, in Victoria Wheeler and Adele Hammer (eds.), Resetting the Rules of Engagement: Trends and Issues in Military–​Humanitarian Relations (London: Overseas Development Institute). International Commission on Intervention and State Sovereignty (ICISS) (2001). The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre).

72   Thomas G. Weiss International Commission on Intervention and State Sovereignty (ICISS) (2001). The Responsibility to Protect: Research, Bibliography, Background (Ottawa: International Development Research Centre). International Committee of the Red Cross (1993). ‘Report on the Protection of War Victims’, International Review of the Red Cross 296: 391–​445. Levitt, Jeremy (2001). ‘African Interventionist States and International Law’, in Oliver Furley and Roy May (eds.), African Interventionist States:  The New Conflict Resolution Brokers (Aldershot: Ashgate). Mani, Rama and Thomas G.  Weiss (2011). R2P:  Cultural Perspectives in the Global South (London: Routledge). Murphy, Sean D. (1996). Humanitarian Intervention: The United Nations in an Evolving World Order (Philadelphia, PA: University of Pennsylvania Press). Newland, Kathleen, Erin Patrick, and Monette Zard (2003). No Refuge:  The Challenge of Internal Displacement (New York and Geneva: United Nations, Office for the Coordination of Humanitarian Assistance). Orford, Anne (2011). International Authority and the Responsibility to Protect (Cambridge: Cambridge University Press). Pattison, James (2010). Humanitarian Intervention and the Responsibility to Protect:  Who Should Intervene? (Oxford: Oxford University Press). Pinker, Steven (2011). The Better Angels of Our Nature (New York: Viking). Prosecutor v. Tadic, IT-​94-​1-​AR72 (October 1995). Serrano, Mónica and Thomas G.  Weiss (eds.) (2014). The International Politics of Human Rights: Rallying to the R2P Cause? (London: Routledge). ‘Statement by the President of the General Assembly, Miguel d’Escoto Brockmann, at the Opening of the 97th Session of the General Assembly’, 23 July 2009. Stedman, Stephen J. (1993). ‘The New Interventionists’, Foreign Affairs 72(1): 1–​16. Tesón, Fernando (1997). Humanitarian Intervention: An Inquiry into Law and Morality, 2nd edn. (Irvington-​on-​Hudson, NY: Transnational Publishers). Thakur, Ramesh (2006). The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge: Cambridge University Press). United Nations (1995). Supplement to An Agenda for Peace: Position Paper of the Secretary-​ General on the Occasion of the Fiftieth Anniversary of the United Nations, UN document A/​ 50/​60-​S/​1995/​1. United Nations (2000). Report of the Panel on United Nations Peace Operations, UN document A/​55/​305-​S/​2000/​809, 21 August. United Nations (2004). A More Secure World: Our Shared Responsibility. Report of the Secretary-​ General’s High-​Level Panel on Threats, Challenges, and Change. New York: United Nations. United Nations (2005a). Report of the International Inquiry on Darfur to the United Nations Secretary-​General, Geneva, 25 January. . United Nations (2005b). World Summit Outcome Document, adopted by UN General Assembly Resolution A/​RES/​60/​1, 24 October, paras. 138–​40. United Nations Security Council (1999). Note by the President of the Security Council: Work of the Sanctions Committee, S/​1999/​92, 29 January. United Nations Security Council (2000). Note by the President of the Security Council, S/​2000/​319, 17 April.

R2P Precedents and Prospects    73 Vincent, R.  J. (1986). Human Rights and International Relations:  Issues and Responses (Cambridge: Cambridge University Press). Walzer, Michael (2011). ‘On Humanitarianism’, Foreign Affairs 90(4). . Weiss, Thomas G. (1993). ‘Whither the United Nations’, Washington Quarterly 17(1): 109–​28. Weiss, Thomas G. (1995). ‘Military–​Civilian Humanitarians: The Age of Innocence is Over’, International Peace Keeping 2(2): 157–​74. Weiss, Thomas G. (ed.) (1998). Beyond UN Subcontracting: Task-​Sharing with Regional Security Arrangements and Service-​Providing NGOs (Basingstoke: Macmillan). Weiss, Thomas G. (2004). ‘Humanitarian Action, Impulse Not Imperative’, in Sebastian von Einsedel, David M. Malone, and Bruno Stagno Ugarte (eds.), The United Nations Security Council: From Cold War to the 21st Century (Boulder, CO: Lynne Rienner). Weiss, Thomas G. (2005). Military–​Civilian Interactions: Humanitarian Crises and the Responsi­ bility to Protect (Lanham, MD: Rowman & Littlefield). Weiss, Thomas G. (2012a). Humanitarian Intervention: Ideas in Action, 2nd edn. (Cambridge: Polity Press). Weiss, Thomas G. (2012b). ‘Humanitarian Intervention and US Policy’. Great Decisions 2012 (New York: Foreign Policy Association). Weiss, Thomas G. (2014). ‘Military Humanitarianism:  Syria Hasn’t Killed It’, Washington Quarterly 37(1): 7–​20. Weiss, Thomas G., David Cortright, George A.  Lopez, and Larry Minear (1997). Political Gain and Civilian Pain: Humanitarian Impacts of Economic Sanctions (Boulder, CO: Lynne Rienner). Weiss, Thomas G. and David A. Korn (2006). Internal Displacement: Conceptualization and its Consequences (London: Routledge). Welsh, Jennifer M. (2013). ‘Norm Contestation and the Responsibility to Protect’, Global Responsibility to Protect 5(4): 365–​96. Wheeler, Nicholas J. (2000). Saving Strangers:  Humanitarian Intervention in International Society (Oxford: Oxford University Press).

Chapter 5

Sovereig nt y as Resp onsi bi l i t y Building Block for R2P Roberta Cohen and Francis M. Deng

For centuries, state sovereignty was ‘the essential building block of the nation-​state’ system. The same was true of the United Nations. It was established to maintain ‘international peace and security on the basis of protecting the territorial integrity, political independence and national sovereignty of its member states’.1 In fact, Article 2(7) of the Charter was designed to protect Member States against any intervention in ‘matters which are essentially within the domestic jurisdiction of any state’. And this bedrock principle of non-​interference in internal affairs was regularly invoked, especially to impede international action on human rights.2 Efforts to reconcile Article 2(7) with the Charter’s call for joint and separate action to promote respect for human rights (Arts. 55–​6) became an ongoing preoccupation of the international community. It was not until the late 1980s and early 1990s, when the Cold War came to an end, that the international community began seriously to question the primacy given to Article 2(7) of the Charter. Confronted with civil wars, mass atrocities, and even genocides, leading voices began to call for international action to defend the victims of human rights and humanitarian emergencies. UN Secretary-​General Perez de Cuellar summed up the new situation well when he observed: ‘We are clearly witnessing what is probably an irresistible shift in public attitudes toward the belief that the defense of the oppressed in the name of morality should prevail over frontiers and legal documents.’3 Kofi Annan, his successor, together with other world leaders, went further. They asked whether sovereignty was being misused as a shield behind which mass violence could be inflicted on populations with impunity.4 Annan also put forward a new interpretation of how the UN Charter should be understood: ‘When we read the Charter today’, he said, ‘we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them.’5

Sovereignty as Responsibility    75 The idea of a right to humanitarian intervention (‘le droit d’ingérence’) was brought forward in France to achieve protection for those at risk.6 The international community, it was argued, should have a right to intervene when governments obstructed access to populations in need or deliberately subjected them to starvation and other abuses. The directness of the approach met with considerable opposition from those who feared that intervention to gain access to war-​affected populations was too much of a challenge to the principle of non-​interference in internal affairs.7 A more palatable approach came from the Brookings Institution where scholars working on governance in Africa, especially co-​author Francis Deng, worked to reframe sovereignty in a positive way as a form of responsibility towards a state’s population.8 Rather than envisaging sovereignty as an obstruction to good governance, they recast sovereignty in line with democratic concepts of governance as a form of state accountability to those under its jurisdiction, as set forth in the volume Sovereignty as Responsibility. Not far down the street, at a small think tank, the Refugee Policy Group (RPG), on whose Board of Trustees Deng served, co-​author Roberta Cohen began examining state responsibilities towards internally displaced persons (IDPs)—​those uprooted within their own countries by conflict and human rights violations. Reflecting her time with the Carter administration, she looked to human rights standards as the basis for the protection of IDPs and envisaged sovereignty as implying humanitarian and human rights obligations by governments to the persons residing on their territories.9 Brookings and RPG created a joint project on internal displacement in 1994 which promoted the concept of sovereignty as responsibility as the basis for the protection of IDPs. This chapter traces the development of the concept of sovereignty as responsibility, the particular debates leading to its formulation, the human rights origins at its foundation, and its application to the protection of IDPs. It identifies the compatibilities and also the differences in approach between the concept of sovereignty as responsibility and R2P.

Human Rights Origins of Sovereignty as a Form of Responsibility In response to the magnitude of the Holocaust and the atrocities of the Second World War, the United Nations developed international human rights standards to spell out the civil, political, economic, social, and cultural rights inherent to all individuals and with which every state was expected to comply. The standards marked an evolution in thinking from a strictly state-​centred system in which sovereignty was absolute to one in which the behaviour of states towards their own citizens became a matter of international concern and scrutiny. Not only did the UN Charter require Member States to respect human rights and fundamental freedoms, but the Universal Declaration of Human Rights, adopted in 1948, set forth the broad range of human rights to which all

76    Roberta Cohen and Francis M. Deng individuals were entitled. The Declaration was followed by legally binding treaties on many of its provisions, with monitoring bodies of experts set up to promote compliance. Yet United Nations bodies of states like the Commission on Human Rights were not allowed to act on human rights violations taking place within particular countries. Article 2(7) of the Charter was used to prevent collective state action. The Commission regularly affirmed that it had ‘no power to take any action in regard to any complaints concerning human rights’.10 Only two situations qualified: apartheid in southern Africa and the Israeli-​occupied territories in the Middle East—​both of which were said to include an ‘international’ dimension. When the Commission’s Sub-​Commission of experts brought other situations to its attention, the Commission refused to act on them. And when non-​governmental organizations (NGOs) tried to bring up other cases, most notably in the Soviet bloc, they were threatened with expulsion from their consultative status for slandering Member States.11 It took until 1970 for the UN Economic and Social Council to authorize a procedure—​ albeit in confidential session—​for examining communications filed by individuals and NGOs that demonstrated a consistent pattern of gross violations of human rights in particular states. By 1975, the Commission created in public session a working group on human rights in Chile and later appointed a rapporteur to conduct an on-​site investigation in the country. This opened the door to investigations of human rights in other countries and by the 1980s and 1990s rapporteurs, on-​site missions, and human rights monitors began to be deployed to investigate human rights conditions and negotiate with governments to improve their performance. Article 2(7) in the UN Charter had given way, reflecting a changing notion of sovereignty. Boosting this evolution in thinking was the Carter administration. President Jimmy Carter challenged the domestic jurisdiction argument by declaring before the General Assembly: ‘No member of the United Nations can claim that mistreatment of its citizens is solely its own business.’12 Officials of his administration in line with this view pointed out that the large body of post-​Second World War human rights legislation grew ‘out of principles of accountability and responsibility on the part of governments to their citizens’. A central characteristic of the twentieth century distinguishing it from previous centuries was the recognition that governments ‘are obliged to protect the fundamental human rights, safety and well-​being of their citizens’. Invited to join the State Department’s first human rights bureau, Cohen prepared these and other statements for Department officials to deliver at the United Nations. They emphasized ‘accountability and responsibility’ on the part of governments to their populations and asserted: No nation in the world today can hide politically-​sanctioned abductions and murders, torture, or other gross violations of human rights behind assertions of sovereignty. Where basic human rights are concerned, all governments are accountable not only to their citizens but to the entire community of nations.13

In meetings with foreign governments, administration officials emphasized that governments were first and foremost responsible to protect the human rights of their own

Sovereignty as Responsibility    77 citizens in accordance with national and international human rights standards. But if they failed to do so, there would be consequences. The United States, they underscored, had a right and a responsibility to act on the basis of its laws and international commitments, and would take a series of calibrated steps from diplomatic intercessions, public statements, symbolic actions, to the withholding of military and economic assistance. Secretary of State Cyrus Vance explained that the human rights policy was not intended to ‘intervene in the internal affairs of other countries’ but to insist that states exercise their responsibilities to protect the human rights of their population. If they failed in their obligations, the United States was prepared to take steps to promote observance of human rights.14 It was a unilateral policy and it did not encompass military intervention on human rights or humanitarian grounds. But it strongly contributed to the erosion of the domestic jurisdiction defence at the United Nations, and it served as an antecedent to the redefinition of sovereignty as a form of responsibility to one’s citizens and the international community. As Deng later wrote with regard to accountability and responsibility: From a normative standpoint, the needed response to the dilemmas of sovereignty is to reaffirm the responsibility of sovereignty and accountability to the domestic and external constituencies as interconnected principles of the international order.15

Emergence of the Concept of Sovereignty as Responsibility: Governance in Africa At the Brookings Institution, beginning in 1989, Francis Deng, William Zartman, and other scholars began to look at how the end of the Cold War changed the way conflict and conflict resolution were perceived in Africa. They launched an in-​depth evaluation of the meaning of sovereignty over the centuries. While there was considerable debate over this issue, it was eventually agreed that the normative challenge, as Zartman formulated it, was one of ‘sovereignty as responsibility’. Beginning with the Treaty of Westphalia of 1648 when the sovereign reigned supreme, the group turned to the development of democratic institutions and international human rights standards after the Second World War which served to erode notions of absolute sovereignty and then went on to the post-​Cold War period when states began reactively to reassert sovereignty on becoming vulnerable to international human rights and humanitarian scrutiny. With internal conflicts and genocidal assaults heavily affecting Africa, Deng as Director of Brookings’ Africa programme took particular interest in efforts to reconcile sovereignty and responsibility in war-​torn situations.16

78    Roberta Cohen and Francis M. Deng Deng et al.’s book, Sovereignty as Responsibility, published in 1996, neither sought to diminish nor to dismiss state sovereignty as some scholars in the immediate post-​ Cold War era tended to do. Rather it affirmed that since there is no adequate replacement in sight for the system of state sovereignty, primary responsibility for promoting the security and well-​being of populations must remain with the state. Sovereignty, it said, needed to be ‘put to work’ to meet the challenges of the times. Governments had responsibilities to their population and also to the international community which as ‘the ultimate guarantor’ of human rights standards had ‘a corresponding responsibility’ to provide victims of internal conflicts and gross human rights violations with essential protection and assistance.17 Sovereignty was a ‘shared responsibility’. When it came to domestic performance, a government had to aspire to good governance, economic well-​being, democratic distribution of power, conflict prevention and resolution, and the management of diverse ethnic, racial, and religious identities. But when a government failed to do so, ‘thereby exposing large numbers of citizens to suffering and perhaps death’, the international community had to become involved and ‘make clear that such a state of affairs ultimately threatens global order’.18 Internal conflicts, the book emphasized, ‘are nearly always the concern of the international community’.19

Application of Sovereignty as Responsibility for the Protection of Internally Displaced Persons The concept of sovereignty as responsibility was first applied to the plight of IDPs caught up in human rights and humanitarian emergencies. The explosion of civil wars emanating from and following the Cold War brought into view millions of uprooted people within their countries without the basic necessities of life and vulnerable to all manner of human rights abuses. They were not only a humanitarian and human rights problem but a threat to the stability of neighbouring states, especially through refugee flows. But no conceptual, legal, or institutional basis existed for protecting and assisting them. IDPs had been deliberately excluded at the end of the Second World War from the international protection regime set up for refugees—​in deference to sovereignty. Although a few governments did propose addressing the plight of internally displaced populations, most chose to limit international protection to refugees—​those outside their countries. The Refugee Convention and the Office of the UN High Commissioner for Refugees (UNHCR) thus came into being without reference to those displaced within their own countries. During the Biafra civil war in the 1960s, UNHCR stopped its own staff from extending protection to IDPs because ‘my office’, the High Commissioner wrote, ‘is not in a position to deal with situations affecting nationals who find themselves within a territory of their country’.20

Sovereignty as Responsibility    79 By the 1970s, UNHCR did begin to assist IDPs in some emergencies when they were mixed in with refugees, at the request of the Secretary-​General and the General Assembly. And the International Committee of the Red Cross (ICRC) which had a special mandate to protect civilians in armed conflict gained a more explicit mandate to protect civilians in non-​international armed conflicts. NGOs too like Médecins sans Frontières, whose very name transcended borders, also sought to assist people at risk inside countries. But it was not until the end of the Cold War that traditional notions of sovereignty began to be seriously challenged. The gap in treatment between refugees and IDPs largely brought this to the fore as it was increasingly noticed that refugees had a clearly developed international system to protect and assist them, whereas IDPs in similarly desperate conditions did not. Yet, the IDP ‘problem’ had begun ‘to rival that of political refugees, both in scope and severity’.21 Humanitarian organizations were confronting it on the ground and began to speak of having a right and a responsibility to reach persons at risk. Not only did they begin to create cross-​border operations to IDPs and others behind insurgent lines, as in the Horn of Africa, but in 1991, UNHCR protected displaced Kurds in the safe haven in northern Iraq, and in the former Yugoslavia, UNHCR became the lead agency on the ground for refugees, IDPs, and other affected populations. High Commissioner Sadako Ogata later wrote in her memoir that she posed the following question to herself: Should we follow the legal dictate of not exercising our mandate inside the border and thereby refrain from helping those prevented from crossing or should we stand more on realistic humanitarian grounds and extend whatever support we could?

Ogata chose ‘the realistic humanitarian course’.22 Nonetheless UNHCR also sought a conceptual rationale for dealing with IDPs. So did the World Food Programme23 which suggested a review of ‘the international community’s approach to sovereignty and the rights of humanitarian intervention in order to provide satisfactory access to IDPs’.24 In 1991, High Commissioner Sadako Ogata addressed the first international conference on human rights protection for IDPs, organized by Roberta Cohen and Dennis Gallagher of RPG. The organization had been involved since the late 1980s in calling attention to IDPs and the need for human rights and humanitarian organizations to come together to address the problem.25 As RPG’s Senior Adviser on human rights, Cohen pointed out that ‘the deliberate starvation of hundreds of thousands of people’ was not just a humanitarian problem but a human rights one as well.26 Together with other NGOs, RPG brought the issue before the UN Commission on Human Rights and called for the appointment of a UN rapporteur on the question.27 At a meeting organized by the Quakers and World Council of Churches in Geneva, Cohen told delegates of the Commission on Human Rights that the international community must assume responsibility for IDPs when their own governments were unable or unwilling to do so. Acknowledging that IDPs were ‘first and foremost the responsibility of national

80    Roberta Cohen and Francis M. Deng governments’, she asked ‘what should happen when governments do not meet their responsibilities to internally displaced people’: The U.N. cannot assign responsibility for the protection of such people to the very authorities that may have been the cause of their problems. The fact that they are displaced internally does not mean that the international community does not have a major responsibility to protect them.28

At the 1991 meeting, RPG sought to develop a strategy to help increase human rights protection for IDPs by examining legal, institutional, diplomatic, political, and economic responses. Sovereignty featured heavily. Deng and Cohen came at the question from different times and perspectives, one from governance in Africa and the other from international human rights during the Carter administration, but brought their approaches together. Cohen wrote the background paper for the conference which pointed out: Sovereignty . . . does not have to mean that a state can behave in any way it wants toward its own citizens without consequence. Sovereignty carries with it a responsibility on the part of governments to protect their citizens. In becoming part of the United Nations system, governments assume the obligation to promote and protect the human rights of those who reside in their territory.29

Sadako Ogata told the conference that ‘we cannot permit the principle of national sovereignty to shield governments from their responsibilities toward their own citizens’. Governments must come to ‘accept that ultimately they are accountable for the protection of these displaced persons’.30 The 1991 conference raised the question of the legitimacy of governments that failed in their responsibilities. The background paper for the meeting pointed out that the humanitarian community had begun to insist that humanitarian concerns take primacy over state imperatives because ‘governments forfeit their sovereignty when they refuse to meet the humanitarian needs of their population’.31 Moreover, since flagrant and massive violations of human rights were also considered a ‘legitimate concern of the international community’, ‘the legitimacy’ of a government also can be determined ‘by whether or not it adheres to human rights precepts’.32 The 1991 RPG conference report, prepared by Cohen, reflected the views of its 40 senior participants from the human rights and humanitarian worlds. It asserted that the ‘concept of sovereignty’ was more understood today ‘in terms of conferring responsibilities on governments to assist and protect persons residing in their territories’ so much so that ‘If governments fail to meet their obligations, they risk undermining their legitimacy.’33 It had an impact, first of all on UNHCR which could be seen to justify more regularly its involvement with IDPs by referencing new notions of sovereignty. The agency pointed out that ‘sovereignty’ involved ‘a responsibility to meet the population’s needs

Sovereignty as Responsibility    81 or else allow the international community to assist’.34 And in 1992, the Commission on Human Rights adopted a resolution requesting the Secretary-​General to appoint a representative on IDPs. Concerns nonetheless continued to be expressed by different governments. As Ogata pointed out years later, ‘the question of internally displaced persons’ aroused many concerns because it challenged ‘state sovereignty as the founding principle of international relations’.35 The resolution therefore creating the IDP position did not call for a rapporteur to investigate and report on violations but for a representative to ‘study’ the question.36 And the resolution failed to provide for the continuation of the position, a decision not made until the following year. Traditionalist refugee advocates also raised objections. In their view, only refugees merited international protection because they were outside their countries of origin and therefore needed substitute legal protection. Focusing on IDPs, moreover, could avert attention from refugees and infringe on the right to asylum, leading to the containment of people within their own countries.37 Some even called Cohen ‘an extravagant internationalist’ for speaking of an emerging international responsibility to protect IDPs. But the Commission on Human Rights, with Austria, the Nordic governments, and other states in the lead, adopted a resolution drawing attention to ‘the large number of internally displaced persons throughout the world and their suffering’ and affirmed that this growing situation was a ‘serious problem’ for the international community to address. The resolution, as noted above, called for the appointment of a representative of the Secretary-​General, and Boutros Boutros-​Ghali appointed Brookings scholar and former senior diplomat Francis Deng to the position.

The Meaning of Sovereignty as Responsibility As Representative of the Secretary-​General, Deng considered sovereignty as responsibility the most effective foundation for addressing the problem of internal displacement. But what precisely the concept meant in the case of IDPs or other affected populations had to be developed. At the 1991 RPG conference on IDPs, participants pointed to responsible sovereignty as meaning protecting basic human rights and responding to basic human needs.38 When governments failed in these responsibilities, the international community was expected to become involved. A ‘government’s denial of food to its own population leading to mass starvation was considered an acceptable justification for international intervention’; so too when ‘civilians [were] trapped in conflict situations’ like in Iraq.39 The RPG report proposed a ‘study’ of the ‘different kinds of violations and at what point they warranted intervention’. Although one African international lawyer called Deng an ‘African

82    Roberta Cohen and Francis M. Deng rebel’ for promoting a concept that could lead to intervention, most others considered one or another form of international involvement essential. Some opposed military force on any grounds, but most accepted it as ‘a last resort’ after all other measures had failed and massive loss of life was in prospect.40 In his meetings with governments, Deng emphasized that states have primary responsibility to meet their obligations to their population, and if they are unable to do so, they are expected to request outside support. Sovereignty after all implies accountability to one’s domestic population and also to the international community. Only in very rare cases would he consider it necessary to add that if a government is incapable of providing protection and assistance, then the international community would be expected to act, or that the best way to protect sovereignty is to discharge the responsibilities of sovereignty.41 He visited countries at their invitation and focused primarily on diplomacy through persuasion.42 He recalled that: The first five minutes are crucial for trying to impress upon the president or the minister of foreign affairs . . . that I recognize the problem as internal and falling under the sovereignty of the state; that my task is to see how the international community can assist the government to help its own people . . . I go on to affirm, politely but affirmatively, that I don’t interpret sovereignty negatively. Sovereignty is not a way of closing doors against the international community . . . sovereignty to me is a positive concept, which stipulates state responsibility to provide protection and assistance for its people.43

From 1992 to 2004 Deng worked to persuade governments that concern for IDPs was not a pretext for international political or military involvement. Indeed, the concept of sovereignty as responsibility was intended to allay governmental fears about international intervention while impressing upon them compelling humanitarian and human rights concerns for IDPs.44 In the words of a UN officer who accompanied him on many missions, his approach proved tremendously effective with governments the world over in attenuating the inevitable tensions surrounding what fundamentally is an internal issue and in opening channels fostering constructive dialogue on addressing internal displacement.45

In his farewell letter to the Secretary-​General, Deng underscored that: I believe the soft approach was crucial to winning the cooperation of the Governments on an issue of great sensitivity. On the other hand, I have been encouraged in recent years to be more outspoken and assertive.46

And in his writings he was more assertive, addressing what should happen when governments fail in their obligations to their populations. In his first report to the Commission on Human Rights, he said: No government can legitimately invoke sovereignty for the deliberate purpose of starving its population to death or otherwise denying them access to protection and

Sovereignty as Responsibility    83 resources vital to their survival and well-​being . . . if a Government is incapable of providing protection and assistance then the international community should act, either on the invitation of the host country or with international consensus, to fill the vacuum.47

Deng considered intervention to be ‘in consonance with the principle of sovereignty’. And after visiting war-​torn countries in 1992 and 1993, he pointed out in his book Protecting the Dispossessed that: Where governments are unwilling to accept international support, the problem can in most cases be resolved through diplomacy. It is only in the most extreme situations that the international community may be compelled to force access and provide protection and assistance.48

At the same time, he had concerns about the use of force for humanitarian purposes. In the Leiden Journal of International Law, he argued that the United Nations, a collective entity, ‘should have primary responsibility’ for determining which humanitarian crises threaten international peace and security necessitating intervention. He cautioned that ‘powers with the capacity to intervene may hide behind the smoke screen of humanitarianism to pursue nationalistic objectives’. He also warned that ‘the justification for and manner of intervention must be respectful of local sentiments and reliably persuasive’ because an intervention will only be effective if it ‘enjoy[s]‌local and global legitimacy’.49 As had RPG’s 1991 conference report, Deng saw a need for principles or ‘standards for legitimate action’.50 Both he and Cohen were aware that the concept of sovereignty as responsibility did not identify the point at which ‘intervention’ would be justified.51 Deng referenced ‘hundreds of thousands, and maybe millions’, starving to death as well as exposure to ‘deadly elements’ without shelter, and indiscriminate torture, brutalization, and murder as justification for the international community’s ‘stepping in’.52 But at a meeting in 1996 convened by the Carnegie Corporation at the Johns Hopkins School of Advanced International Studies, where Cohen presented the ‘Brookings doctrine’ as Zartman called it, participants raised questions about how international intervention should be determined. Some expressed concerns that the threshold might be too low, occasioning too much intervention, although the Security Council at the time had begun to see massive violations of human rights and overwhelming displacement as constituting threats to international peace and security. Others feared too high a threshold that would preclude action on a range of humanitarian crises. In Masses in Flight, Cohen and Deng featured obstruction of relief as one important trigger for intervention: The legal analysis in this volume affirms that the international community has a right, possibly even a duty, to provide humanitarian relief, and in exceptional cases to do so against the will of the government concerned.53

84    Roberta Cohen and Francis M. Deng They also considered a severe lack of protection as justification: Clearly, humanitarian action needs to be made automatic in cases of mass starvation, impending genocide, or large-​scale massacres.54

They called for ‘the development of criteria, both of a political and a humanitarian character, that would justify intervention in such cases’.55 And in Foreign Affairs, they spoke of ‘calibrated actions, ranging from diplomacy to political pressure, sanctions, and, as a last resort, military intervention’ when states failed in their responsibilities for protection and assistance.56 But Deng had to deal with governments’ constant concerns about international intervention. When he first became Representative, China, Cuba, and Sudan expressed opposition to international humanitarian action that overrides sovereignty, fearing that humanitarian action for IDPs could be a cover for the interference of powerful countries in the affairs of weaker states.57 And later in 1999, after NATO intervened in Kosovo on humanitarian grounds, Egypt, Sudan, and several other states raised objections to the Guiding Principles on Internal Displacement, the first international standards for IDPs which Deng presented to the UN the year before.58 They expressed fears that internal displacement might be used as a cover to trigger humanitarian intervention. Egypt’s representative even came to a meeting on the Guiding Principles with a copy of Cohen and Deng’s book Masses in Flight under his arm which he showed Cohen he had marked up, particularly the passages on sovereignty and intervention. At the time, Egypt, which had no IDPs, was acting in defence of its neighbour Sudan, where there were more than 4 million uprooted by civil war to whom it was obstructing aid. Humanitarian aid, both governments insisted, could be provided only at the request and with the consent of states and expressed concerns that the Principles could override state sovereignty on this point. To help end the controversy around these new standards, the Swiss government hosted an informal series of meetings in 200159 at which the Representative emphasized the concept of sovereignty as responsibility in its most positive formulation. The legal team, chaired by Walter Kalin, and composed of international lawyers from academic institutions, international agencies, and NGOs, emphasized that the Principles were consistent with existing international law but acknowledged some small ‘creative development’. By 2002 Egypt reversed its position, having discovered that many members of the G77 were finding the Principles of use in their dealing with displacement in their countries, and Sudan went on to host a regional IGAD meeting on internal displacement which called the Principles a useful tool. By 2005, more than 20 governments had adopted laws and policies based on the Principles, and the UN adopted by consensus the World Summit Outcome Document that affirmed the Guiding Principles as ‘an important international framework for the protection of IDPs’.60

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Sovereignty as Responsibility: The Guiding Principles on Internal Displacement In its opening articles, the Guiding Principles affirm that ‘primary responsibility’ for displaced populations rests with their governments (Principles 3, 25/​1),61 but that sovereignty comes with certain obligations. The main body of the Principles sets forth these obligations, both of governments and international organizations, together with the rights of IDPs. The obligations include the provision of life-​sustaining material assistance and the protection of the security of the displaced and span the wide range of civil, political, economic, social, and cultural rights. If states are unable to provide humanitarian assistance to those in need, states are expected to request outside aid, and offers of such aid are not be regarded ‘as an unfriendly act or an interference in a State’s internal affairs’. And when authorities are ‘unable or unwilling’ to provide the required assistance (Principle 25/​2), ‘consent’ is not to be ‘arbitrarily withheld’ (Principle 25/​2). Although the Principles do not go so far as to assert that international aid can be provided without the consent of the affected country, Cohen and Deng made clear that, the obligation imposed on states by humanitarian and human rights law to refrain from refusing reasonable offers of international assistance, makes it difficult to dispute the existence of a duty to accept such offers.62

Kalin, who succeeded Deng as Representative of the Secretary-​General, further pointed out in his Annotations to the Guiding Principles that when states refuse reasonable offers of international aid and lives are at stake, such refusal constitutes arbitrariness.63 Addressing the issue of physical security for IDPs, the Principles provide that international humanitarian organizations should pay attention to the ‘protection needs and human rights’ of IDPs and ‘take appropriate measures’ in this regard (Principle 27) (emphasis added). The taking of measures went beyond the provision of material assistance to promoting the ‘protection’ of IDPs from violence and abuse when governments fail to do so. The reference to protection occasioned considerable debate since the term was not specifically defined for organizations other than the ICRC and UNHCR. But at the legal team meeting, Cohen insisted on the inclusion of protection, largely because there were rising concerns about the assaults, sexual violence, and other abuse to which IDPs were being subjected. The provision of food, medicine, and shelter in and of themselves was not enough, she argued. Material assistance alone had given rise to the tragic description of some victims as the ‘well-​fed dead’.64

86    Roberta Cohen and Francis M. Deng The legal team backed up the inclusion of the term protection and in the Annotations, Kalin explained that protection and material assistance ‘are closely related to one another’ because in practice ‘no operation strictly limited to the delivery of relief supplies can be fully effective’. He then pointed to the ICRC’s ‘right of initiative’ and General Assembly resolutions calling upon UNHCR to provide both ‘humanitarian assistance and protection’ for IDPs and concluded that ‘Many other intergovernmental and non-​ governmental organizations are also mandated to address at least some of the assistance and protection needs of internally displaced persons.’65 The emerging notion of international protection for those uprooted inside their countries was reinforced by a meeting Deng and Cohen held with Sergio Vieira de Mello, the then Under-Secretary-​General for Humanitarian Affairs and Mary Robinson, the then High Commissioner for Human Rights. It was agreed at the end of the meeting that Deng’s office at OHCHR would prepare a policy paper on IDP protection for adoption by the Inter-​Agency Standing Committee (IASC), composed of all the major humanitarian and development agencies and NGO umbrella groups. The paper acknowledged that while primary responsibility for protection rests with state authorities, protection must also be integrated into the operations of humanitarian and development agencies.66 At de Mello’s urging, the IASC endorsed the final paper and also the Guiding Principles on Internal Displacement.67 De Mello may have come out of the refugee world, but he strongly held the view that the UN should ‘alleviate the suffering of innocent people throughout the world irrespective of their location’.68 This expanded framework of international responsibility for IDPs prompted a UN official from Geneva’s human rights office to stop by Cohen’s office to ask: ‘Are you and Francis Deng aware that you are making a revolution?’ ‘Yes’, she replied, ‘we are.’ The specific content and scope of the Guiding Principles also proved instructive for the development of R2P. The Principles cover all phases of displacement, from a right not to be arbitrarily displaced (or protection from displacement), to protection during displacement to protection during return, resettlement, and reintegration. Initially the legal team planned to address only the protection and assistance needs of IDPs after displacement took place, but Deng insisted on including prevention. His vision was a broader one. In his 1995 Leiden article, he spoke of the need to draw early attention to impending crises, and interceding through preventive diplomatic measures.69 He was also mindful of the urgings of Ogata whose organization was faced with the deliberate uprooting of people in campaigns of ethnic cleansing in the Balkans. However, refugee advocates both within and outside UNHCR objected to what was initially called ‘a right to remain’ because it could be perceived as having the unintended consequence of restricting the right to leave a country and seek asylum. The legal team therefore emphasized the right to leave a country and seek asylum (Principle 15(b, c)) but introduced the notion of protection from arbitrary displacement (Principle 6(1)). This formulation was considered implicit in the law70 and subsequently led to an emerging international right not to be arbitrarily displaced.71 The last part of the Guiding Principles accorded with the last phase of Deng’s ‘three-​ phase strategy’ of preventive steps, protective measures, and actions that ‘facilitate the

Sovereignty as Responsibility    87 search for an enduring solution’.72 It provided for the rapid and unimpeded access of international humanitarian organizations and other actors into countries to assist IDPs in their return or resettlement and reintegration (Principles 28–​30). This comprehensive approach was later reflected in the African Union (AU) Convention on the Protection of and Assistance to Internally Displaced Persons in Africa, a legally binding treaty, adopted in 2009. Built on the concept of sovereignty as responsibility, it acknowledges that nothing in the Convention should be allowed to prejudice sovereignty and territorial integrity, but spells out in great detail state responsibilities towards displaced populations and makes these obligations legally binding in all phases of displacement. Coming after R2P, the Convention also affirms the AU’s ‘right to intervene’ in a member state in the case of war crimes, genocide, and crimes against humanity, and links such intervention not only to the restoration of peace and security in countries but to ‘finding durable solutions to the problem of internal displacement’.73

Sovereignty as Responsibility and R2P The International Commission on Intervention and State Sovereignty (ICISS), which the Secretary-​General endorsed, provided the intellectual groundwork for R2P. It identified the concept of sovereignty as responsibility as the ‘approach’ introduced by the Representative of the Secretary-​General on IDPs, which means that a state first and foremost has the responsibility to protect its citizens but in those situations in which it is unwilling or unable to do so, there is ‘a residual responsibility for other states to take up the slack’, particularly when massive loss of life occurs or is imminent.74 That sovereignty as responsibility was a fundamental building block for R2P was recognized by Canada’s foreign minister Lloyd Axworthy, the founder of ICISS. He said the first time he heard the idea was in a conversation with Deng who was calling for an international commitment to deal with IDPs.75 Australia’s former foreign minister, Gareth Evans, the ‘father’ of R2P, described sovereignty as responsibility as ‘a central conceptual underpinning of the responsibility to protect norm as it finally emerged’.76 And UN Secretary-​General Kofi Annan publicly proclaimed that ‘sovereignty implies responsibility’77 and endorsed in his well-​known report, In Larger Freedom, a shift to R2P when ‘national authorities are unable or unwilling to protect their citizens’.78 The report of the Secretary-​General’s High-​Level Panel on Threats, Challenges and Change also underscored that sovereignty today ‘clearly carries with it the obligation of a State to protect the welfare of its own peoples and meet its obligations to the wider international community’ but when states are not willing or able to meet their obligations, ‘some portion of those responsibilities should be taken over by the international community’.79 Deng had managed to get the concept of sovereignty as responsibility accepted by the international community. Travelling throughout the world to secure protection and assistance for IDPs, he made the idea palatable and thereby acceptable to many governments while the Brookings Project on Internal Displacement in seminars held

88    Roberta Cohen and Francis M. Deng throughout the world disseminated the idea to civil society. And because there was a great deal of sensitivity and scepticism, arguments had to be marshalled and consensus built for the concept which later benefited those developing R2P. The practicality of the concept proved helpful. No government could challenge the concept since doing so would mean it would have to argue that sovereignty allows a state to deny life-​sustaining support to its citizens. At the same time, some were wary, seeing a contradiction between international involvement with IDPs and protection of sovereignty even though the Secretary-​General insisted that ‘RtoP is an ally of sovereignty, not an adversary’.80 While sovereignty as responsibility became known as Deng’s ‘signature calling card’,81 Deng himself largely emphasized the first part of the concept in his dealings with governments, leading some observers to interpret it primarily as one to address national responsibility and cooperation with the international community whereas the concept’s second part—​the international responsibility to act if a government failed to do so—​was an integral part. The negotiations leading to R2P helpfully identified what the concept had not—​the ‘thresholds’ for international intervention—​cases of ‘genocide, war crimes, ethnic cleansing and crimes against humanity’.82 Natural disasters, however, were not included even though they are an intrinsic part of the IDP definition. In consequence, persons suffering extreme persecution and neglect while uprooted by disaster fall outside the R2P umbrella, a position questioned by principal R2P associates.83 R2P also identified the international body responsible for making the decision for intervention—​the UN Security Council in cooperation with regional organizations. In his writings, Deng referred to higher UN bodies being responsible for the decision but did not become engaged in pinpointing the responsibility.84 Like the concept of sovereignty as responsibility, the R2P framework provided for preventive measures and for capacity building for protection, but unlike the IDP framework, it does not include rebuilding. Although the ICISS report encompassed rebuilding, and R2P is often interpreted to include rebuilding, R2P’s final formulation is not so comprehensive, notwithstanding Kofi Annan’s observation that ‘the aftermath of war requires no less skill, no less sacrifice, no fewer resources than the war itself, if lasting peace is to be secured’.85 While the concept of sovereignty as responsibility contributed to the justification for international action, R2P is unique in its formulation of an explicit collective responsibility to protect (albeit case by case), its identification of the crimes warranting such action, and its choice of Chapter VII Security Council involvement when diplomatic and other measures fail to produce results. That R2P’s supporters managed to achieve an international consensus for this formulation reflected a new understanding of state sovereignty based on sovereignty as responsibility, an idea whose time had come. As the ICISS observed, ‘the three traditional characteristics of state in the Westphalian system (territory, authority, and population) have been supplemented by a fourth, respect for human rights’86—​in other words, sovereignty is also responsibility.

Sovereignty as Responsibility    89

Notes 1. ICISS 2001, p. 13. 2. Cohen 2012, pp. 7–​11. 3. Perez de Cuellar 1991. 4. UN General Assembly 2009, para. 5. 5. ICISS 2001, p. 11. 6. Bettati and Kouchner 1987. 7. Evans 2008a, pp. 32–​3. 8. Deng 1995a, 1995b; Deng et al. 1996, pp. 1–​33. 9. Cohen 1991a, pp. 16–​19, 1991b, 1991c. 10. UN 1947. 11. Cohen 2012, pp. 8–​10. 12. Carter 1977. 13. Schneider 1978. 14. Vance 1977. 15. Deng 1995b, p. 278. 16. Deng et al. 1996, pp. 1–​33. 17. Deng et al. 1996, pp. xi, xiii. 18. Deng et al. 1996, pp. xxii–​xxiii. 19. Deng et al. 1996, p. 24. 20. Lichtenheld 2008. 21. Farah 1989. 22. Ogata 2005, p. 38. 23. WFP 1996, pp. 5, 17. 24. WFP 1996. 25. Martin 2006, pp. 27–​8. 26. Cohen 1991b. 27. Weiss and Korn 2006, pp. 17–​29. 28. Cohen 1990. 29. Cohen 1991a. 30. Ogata 2005, p. 38. 31. Cohen 1991a, p. 18. 32. Cohen 1991a, p. 19. 33. RPG 1991, pp. 7–​8. 34. UNHCR 1993, p. 75. 35. Weiss and Korn 2006, Foreword. 36. UN Resolution 1992. 37. Goodwin-​Gill 2000, p. 26; Hathaway 2007, pp. 356–​65. 38. RPG 1991, pp. 7–​8. 39. RPG 1991, p. 9. 40. RPG 1991, pp. 9–​10. 41. Deng 2002. 42. Bellamy 2008, p. 620. 43. Deng cited by Weiss and Korn 2006, p. 45. 44. Deng cited by Weiss and Korn.

90    Roberta Cohen and Francis M. Deng 45. Mooney 2010, p. 75. 46. Deng cited by Weiss and Korn. 47. UN Commission on Human Rights 1993, para. 151. 48. Deng 1993, pp. 134–​5. 49. Deng 1995b, pp. 282–​4. 50. Deng 1995b, p. 284. 51. Cohen and Deng 1998, p. 280. 52. Deng 1995b, p. 285. 53. Cohen and Deng 1998a, p. 277. 54. Cohen and Deng 1998a, p. 280. 55. Cohen and Deng 1998a, p. 280. 56. Cohen and Deng 1998b, p. 14. 57. Deng 1995a, pp. 274–​5. 58. See UN Guiding Principles 1998. 59. Cohen 2004, pp. 472–​5; UN Office for the Coordination of Humanitarian Affairs 2003, pp. 47–​9. 60. UN General Assembly 2005b, para. 139. 61. UN Guiding Principles 1998. 62. Cohen and Deng 1998a, p. 277. 63. Kalin 2008, pp. 116–​17. 64. Weiss and Korn 2006, pp. 23–​4. 65. Kalin 2008, pp. 122–​3. 66. UN Inter-​Agency Standing Committee 2000. 67. Weiss and Korn 2006, p. 87. 68. De Mello 1999. 69. Deng 1995b, p. 285. 70. Kalin 2008, pp. 26–​36. 71. Morel et al. 2012, pp. 5–​7. 72. Deng 1995b, pp. 284–​5. 73. African Union 2009, Article 8. 74. ICISS 2001, p. 137. 75. Axworthy 2003, p. 414. 76. Evans 2008a, p. 37. 77. Annan 1998. 78. UN General Assembly 2005a, para. 135; Annex para. 7(b). 79. UN 2004, para. 29. 80. Ban Ki-​moon 2008. 81. Mooney 2010, p. 75. 82. Bellamy 2008, p. 623. 83. Axworthy and Rock 2008; Evans 2008b. 84. Bellamy 2008, p. 620. 85. Annan 1999. 86. ICISS 2001, p. 136.

References African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (2009). . Annan, Kofi A. (1998). ‘Reflections on Intervention’, 35th annual Ditchley Foundation Lecture, 26 June. Annan, Kofi A. (1999). ‘Two Concepts of Sovereignty’, The Economist, 16 September. Axworthy, Lloyd (2003). Navigating a New World: Canada’s Global Future (New York: Alfred A. Knopf). Axworthy, Lloyd and Allan Rock (2008). ‘Responsibility to Protect? Yes’, Globe and Mail, 9 May. Ban Ki-​moon (2008). UN Press Release, SG/​SM/​11701, 15 July. Bellamy, Alex J. (2008). ‘The Responsibility to Protect and the Problem of Military Intervention’, International Affairs 24(4): 615–​39. Bettati, Mario and Bernard Kouchner (1987). Le devoir d’ingérence: peut-​on les laisser mourir? (Paris: Denoel). Carter, Jimmy (1977). ‘Address at the United Nations General Assembly’, New  York Times, 18 March. Cohen, Roberta (1990). Refugee Policy Group, ‘U.N. Human Rights Bodies Should Deal with the Internally Displaced’, Statement before delegates to the UN Commission on Human Rights organized by the Quaker UN Office and the World Council of Churches, Geneva, 7 February. Cohen, Roberta (1991a). Human Rights Protection for Internally Displaced Persons, Refugee Policy Group, June (background paper for RPG conference). . Cohen, Roberta (1991b). Opening Statement to the Conference on Human Rights Protection for Internally Displaced Persons, Refugee Policy Group, 24 June. Cohen, Roberta (1991c). Statement to International Journalists Round Table on Human Rights and the United Nations, United Nations, New York, 14–​16 October. Cohen, Roberta (2004). ‘The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting’, Global Governance 10(4): 459–​80. Cohen, Roberta (2012). ‘From Sovereign Responsibility to R2P’, in W. Andy Knight and Frazer Egerton (eds.), The Routledge Handbook of the Responsibility to Protect (Abingdon: Routledge), pp. 7–​21. Cohen, Roberta and Francis M. Deng (1998a). Masses in Flight: The Global Crisis of Internal Displacement (Washington, DC: Brookings Institution). Cohen, Roberta and Francis M. Deng (1998b). ‘Exodus within Borders: The Uprooted Who Never Left Home’, Foreign Affairs 77(4): 12–​16. De Mello, Sergio Vieira (1999). Under-Secretary-​General for Humanitarian Affairs, Briefing of the Security Council on emergency situations outside the Federal Republic of Yugoslavia, Inter-​Office Memorandum, 3 June. Deng, Francis M. (1993). Protecting the Dispossessed (Washington, DC: Brookings Institution). Deng, Francis M. (1995a). ‘Reconciling Sovereignty with Responsibility:  A  Basis for International Humanitarian Action’, in John W.  Harbeson and Donald Rothchild (eds.), Africa in World Politics:  Post Cold War Challenges (Boulder, CO:  Westview Press), pp. 295–​310. Deng, Francis M. (1995b). ‘Frontiers of Sovereignty: A Framework of Protection, Assistance, and Development for the Internally Displaced’, Leiden Journal of International Law 8(2): 249–​86. Deng, Francis M. (2002). ‘Displacement Studies and the Role of Universities’, lecture to a conference of the German Academic Exchange Service, University of Kassel, June.

92    Roberta Cohen and Francis M. Deng Deng, Francis M., Sadikiel Kimaro, Terrence Lyons, Donald Rothchild, and I. William Zartman (1996). Sovereignty as Responsibility: Conflict Management in Africa (Washington, DC: Brookings Institution). Evans, Gareth (2008a). The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All (Washington, DC: Brookings Institution). Evans, Gareth (2008b). ‘Facing Up to Our Responsibilities’, The Guardian, 12 May. Farah, Abdulrahim (1989). Statement before the Third Committee of the UN General Assembly, 14 November. Goodwin-​Gill, Guy S. (2000). ‘UNHCR and Internal Displacement: Stepping into a Legal and Political Minefield’, World Refugee Survey, U.S. Committee for Refugees. Hathaway, James C. (2007). ‘Forced Migration Studies: Could We Agree Just to “Date”?’ Journal of Refugee Studies 20(3): 349–​69. International Commission on Intervention and State Sovereignty (ICISS) (2001). The Responsibility to Protect, Supplementary Volume (Ottawa:  International Development Research Centre, December). Kalin, Walter (2008). Guiding Principles on Internal Displacement:  Annotations, revised edn. (Washington, DC:  The American Society of International Law and The Brookings Institution-​University of Bern Project on Internal Displacement). Lichtenheld, Adam (2008). ‘From Exclusion to Expansion: Internally Displaced People and the Evolution of the International Refugee Rights Regime’ (unpublished senior Honors thesis, University of Wisconsin, on file with co-​author). Martin, Susan (2006). ‘Studying IDPs:  Retrospect and Prospect’, Forced Migration Review, December (special issue). Mooney, Erin D. (2010). ‘Something Old, Something New, Something Borrowed . . . Something Blue? The Protection Potential of a Marriage of Concepts between R2P and IDP Protection’, Global Responsibility to Protect 2(1): 60–​85. Morel, Michele, Maria Stavropoulou, and Jean-​François Durieux (2012). ‘The History and Status of the Right not to be Displaced’, Forced Migration Review 41: 6–​7. Ogata, Sadako (2005). The Turbulent Decade:  Confronting the Refugee Crisis of the 1990s (New York: W. W. Norton). Perez de Cuellar, Javier (1991). UN Press Release, SG/​SM/​4560, 24 April. Refugee Policy Group (RPG) (1991). Human Rights Protection for Internally Displaced Persons: An International Conference, 24–​ 5 June. . Schneider, Mark L. (1978). Statement before UN General Assembly’s Third Committee, 1 December. United Nations (1947). Report of the Economic and Social Council on the First Session of the Commission on Human Rights, UN Doc. E/​259, Lake Success. United Nations (2004). A More Secure World: Our Shared Responsibility. Report of the Secretary-​ General’s High-​Level Panel on Threats, Challenges, and Change. New York: United Nations. United Nations Commission on Human Rights (1993). Comprehensive Study by the Representative of the Secretary-​General on the Human Rights Issues relating to Internally Displaced Persons, UN Doc. E/​CN.4/​1993/​35, 21 January. United Nations General Assembly (2005a). In Larger Freedom: Toward Development, Security and Human Rights for All. Report of the Secretary-​General, UN Doc. A/​59/​2005, 21 March. United Nations General Assembly (2005b). World Summit Outcome Document, adopted by UN General Assembly Resolution A/​RES/​60/​1, 24 October.

Sovereignty as Responsibility    93 United Nations General Assembly (2009). Implementing the Responsibility to Protect: Report of the Secretary-​General, A/​63/​677, 12 January. United Nations Guiding Principles on Internal Displacement (1998). Commission on Human Rights, UN Doc. E/​CN.4/​1998/​53/​Add.2, 11 February. United Nations High Commissioner for Refugees (UNHCR) (1993). The State of the World’s Refugees (New York: Penguin Books). United Nations Inter-​Agency Standing Committee (2000). Protection of Internally Displaced Persons. Policy Paper No. 2, Geneva, October. United Nations Office for the Coordination of Humanitarian Affairs (2003). No Refuge: The Challenge of Internal Displacement. United Nations Resolution (1992). Internally Displaced Persons, Commission on Human Rights, E/​CN.4/​RES/​1992/​73, 5 March. Vance, Cyrus (1977). Statement at the University of Georgia School of Law, 30 April. Weiss, Thomas G. and David A. Korn (2006). Internal Displacement: Conceptualization and its Consequences (London: Routledge). World Food Programme (WFP) (1996). WFP Response to ECOSOC Resolution 1995/​56, Reports to the Economic and Social Council, WFP/​EB.A/​96/​7 (Part IV), April.

Chapter 6

Rwanda, Ko s ovo, and the Internat i ona l C omm issi on on Intervention a nd Stat e Soverei g nt y Ramesh Thakur

The history of the twentieth century is in part the story of a twin-​track approach to tame, through a series of normative, legislative, and institutional fetters, impulses to armed criminality by states in the use of force domestically (to commit atrocities) and internationally (to commit aggression). Cumulatively, these attempted to translate an increasingly internationalized human conscience into a new normative architecture of world order. There was growing recognition of the authority of international consensus over individual state consent as the foundation of legal obligation. To that end, the notion of ‘excess state violence’ challenged the use of violence by any state in its internal and international behaviour beyond the level that international political actors consider to be legitimate.1 As the century drew to a close, three powerful forces converged to entrench non-​ intervention as a peremptory norm of international relations. The first was the doctrine of state sovereignty which emphasized the independence and formal equality of all territorially-​defined states with exclusive authority over the people and resources within their legal jurisdiction. The second was the principle of self-​determination that underpinned decolonization and produced an explosion in the number of independent states making up the family of nations, with a jealous determination to guard their newly-​regained sovereignty. The third was the progressive delegitimization of the use of international force except in self-​defence against armed attack or when authorized by the United Nations as the sole agent of the international community.2 In the meantime, however, as the world steadily became a global village under the impact of rapid developments in communications and transportation technology, the human rights norm also deepened and spread outwards from the Euro–​Atlantic core to

Rwanda, Kosovo, and the ICISS    95 the farthest reaches of the increasingly interconnected international system. This produced normative dissonance between the norms of non-​intervention in the internal affairs of sovereign states and the abusive practices and humanitarian atrocities perpetrated by some brutish thug-​rulers on their own peoples shielding behind that norm.3 But when some states defied the norm of non-​intervention in efforts to protect the victims of mass atrocity crimes, their claimed emerging norm of ‘humanitarian intervention’ collided with the existing norm of non-​intervention. The majority of states rejected the effort to relegitimize the unilateral use of force internationally by some in order to circumscribe the arbitrary use of force internally by others. The paradigmatic case of shameful inaction amidst mass atrocities was the Rwanda genocide in 1994; that of unilateral intervention to try and halt mass atrocities was military action by the North Atlantic Treaty Organization (NATO) in Kosovo in 1999. While Rwanda caused lasting damage to UN ideals and credibility when the organization failed to stop a three-​month-​long genocide, Kosovo damaged UN credibility, and produced a sharp polarization of international opinion when NATO intervened militarily outside the UN framework. Between them, the two cases showed that doing nothing was no longer acceptable to a globally sensitized human conscience (Rwanda), but doing something militarily when confronted with an impossible-​to-​obtain UN authorization was not legally permissible either.4 In other words the existing normative consensus was no longer fit for purpose against the brutal facts of the real world. Responding to a clarion call from UN Secretary-​General Kofi Annan, an independent blue ribbon international commission was convened to try and recreate a new consensus and its report came up with the innovative formula of the responsibility to protect (R2P) that married the civilian protection agenda of the mid and late 1990s to the earlier reformulation of sovereignty as responsibility in the context of internally displaced persons (IDPs).5 This chapter proceeds in four parts. The first describes the default policy setting of non-​intervention that seemed firmly set in the 1990s. The second section discusses the policy challenge posed both by no action, and unilateral action when faced with mass atrocities in Rwanda and the Balkans in the 1990s. The third part reviews the controversy provoked by the claim of an emerging new norm of humanitarian intervention to justify the military action in Kosovo in 1999. The final section concludes with the successful effort of the International Commission on Intervention and State Sovereignty (ICISS) to reconcile the humanitarian imperative to protect civilians from atrocities with the normative prohibition on the use of force inside sovereign jurisdictions without, or even against, the consent of national governments.

Policy Setting: Non-​Intervention as the Default Norm Sovereignty, which has its philosophical and political roots in European thought and practice, is the bedrock organizing principle of modern international society and faith

96   Ramesh Thakur in it was strongly reaffirmed by the large number of countries that regained their independence from colonial bondage in the second half of the twentieth century. Internally, sovereignty refers to the exclusive competence of the state to make authoritative decisions of government with regard to all people and resources within its territory. Externally, it means the legal identity of the state in international law, an equality of status with all other states, and the claim to be the sole official agent acting in international relations on behalf of a society. A condition of any one state’s sovereignty is a corresponding obligation to respect every other state’s sovereignty; that is, not to intervene in others’ internal affairs. Military intervention was circumscribed also by the gathering effort to put increasingly strict limits on the right of states to wage war as unilateral policy. The fetters of the Covenant of the League of Nations were reinforced normatively by the 1928 Kellogg-​Briand Pact outlawing war and followed by stringent proscriptions on the use of force in the UN Charter. Yet, juridical sovereignty notwithstanding, ‘humanitarian intervention’ too has a long history. Its supposed illegality was neither uncontested in academic discourse nor abandoned in state practice. Three European powers—​England, France, and Russia—​ intervened in Greece in 1827 to stop massacres by Turkey, and France intervened again in Syria in 1860 to stop the killings of Maronite Christians. Various European powers intervened in defence of Christians also in Crete (1866–​8), the Balkans (1875–​8), and Macedonia (1903–​8). Doctrine—​for example ‘just war’6—​followed to justify practice, with one analyst justifying humanitarian intervention as the use of force to protect victims of ‘arbitrary and persistently abusive’ treatment by their own governments.7 Even during the Cold War state practice reflected the unwillingness of many countries—​not just the two power blocs, but also some former colonies like India and Tanzania—​to give up intervention as an instrument of policy. The United States has a long—​and seemingly continuing—​history of intervening in Latin America as its sphere of influence, and in the Middle East to effect regime change. At the same time, some of the iconic events in Latin America—​Cuba in the 1960s, Chile in the 1970s, Nicaragua and Panama in the 1980s—​show how difficult it is to pinpoint with precision just what constitutes military intervention, let alone ‘humanitarian’ intervention. The International Court of Justice (ICJ) ruled against humanitarian intervention, for example in the 1986 case Nicaragua v. United States. The court interpreted Article 2(4) of the UN Charter broadly to impose strict limits on the use of force, and Article 51 narrowly to limit the use of force against another state to self-​defence against armed attack from that state. Prior to the Reagan doctrine, US lapses from Charter proscriptions on the use of force were occasional and partial: the Bay of Pigs invasion of Cuba (1961), the intervention in the Dominican Republic (1965–​6). The Reagan doctrine, in seeking to make it general and wholesale, was ‘untenable in law’.8 Thus the many examples of intervention in actual state practice throughout the twentieth century did not lead to an abandonment of the norm of non-​intervention. Often the breaches provoked such fierce controversy and aroused so much nationalistic passion that their net effect was to reinforce the norm more than to negate it. The difficulty with justifying intervention is that the real world is characterized by moral ambiguity

Rwanda, Kosovo, and the ICISS    97 rather than clarity. Intervention may be self-​serving from the start, or begin as humanitarian but be transformed into self-​aggrandizement. Interventions by India into East Pakistan in 1971 and by Vietnam into Cambodia in 1978 removed two regimes that were clearly guilty of having committed gross humanitarian atrocities. But neither action was incompatible with the national security interests of the two intervening powers. Because of the dominance of the non-​intervention norm, both intervening powers justified their military action as self-​defence, not humanitarian intervention. State sovereignty and the correlative norm of non-​intervention received their most emphatic affirmation from the newly independent states. The growing anti-​colonial narrative after the Second World War and the creation of the United Nations pointed to the underlying reality of commercial and geopolitical calculations cloaked in the language of humanitarian and religious motives, as well as the paternalism of the European colonial powers. As a result, ‘humanitarian intervention’ as a doctrine was progressively discredited in large parts of the world in a new climate of international legitimacy unfavourable to intervention in general, and to Western intervention in particular.9 At one level, the developing countries’ attachment to sovereignty is deeply emotional. The colonial experience traumatized many of them. The long shadows cast by this are yet to disappear even though the surviving scars in their collective memory are difficult for many Westerners to comprehend. At another level, the commitment to sovereignty is functional. The state is the cornerstone of the international system. State sovereignty provides order, stability, and predictability in international relations. It mediates relations between the strong and weak, rich and poor, and former colonizers and colonized. Upon independence, state sovereignty was the constitutional device used by newly decolonized countries to try to reconstitute disrupted societies and polities and restart arrested economic development. UN membership was the final symbol of independent sovereign statehood and the organization was the principal forum for collaborative action in the shared pursuit of the three goals of state-​building, nation-​building, and economic development. The UN was therefore the main arena for the jealous protection of state sovereignty, not its casual abrogation. However, the increasing internationalization of the world steadily widened the gap between the legal status and empirical reality of statehood. As a result of agreements signed voluntarily, states accepted many external obligations and international scrutiny. The norms of human rights and international humanitarian law in particular became widely acknowledged and honoured in and among states. As memories of colonialism dimmed and became increasingly distant, the salience of sovereignty correspondingly diminished. Citizens and domestic groups instead began to use the international human rights norm and cross-​national global coalitions to subject the actions of their own governments to increasingly critical international scrutiny. The principled if contested arguments against intervention are buttressed by some pragmatic considerations. A perennial difficulty in trying to justify intervention is that ‘The use of force as a sanction for a breach of an international obligation may do more harm than the breach of the international obligation; the cure is often worse than the disease.’10 Yet a decision not to intervene can have grave consequences. Allied powers

98   Ramesh Thakur in effect, even if not in intention, helped the cause of Franco by refusing to intervene in the Spanish Civil War (1936–​9). In practice, the legitimacy of intervention often turned on the answer to four questions on actor, act, target, and purpose. Who or what was the subject or intervening agent; what was the mode or form of intervention; who or what was the putative object of intervention, and what degree of legitimacy attached to the target; and what was the motive for or goal of intervention? The most commonly accepted form of intervention was that authorized by the United Nations.

Policy Challenge: Mass Atrocity Crimes Against this backdrop, a fierce debate on intervention was ignited in the closing decade of the last century by outbreaks of humanitarian crises in Africa, Asia, and Europe that were handled neither well nor with any semblance of consistency by the international community.11 Instead they highlighted a dangerous gap between the codified best practice of international behaviour as articulated in the UN Charter and actual state practice as it had evolved in the decades since the Charter was signed. The international community failed to rise to the challenge of the conscience-​shocking atrocities of the 1990s and the price of failure was paid by large numbers of innocent men, women, and children.

Rwanda If the Gulf War (1990–​1) marked the birth of the New World Order, Somalia (1992–​4) was the slide into the new world disorder and Rwanda (1994) and Srebrenica (1995) marked the loss of innocence after the end of the Cold War. As genocide unfolded in Rwanda in early 1994 with ample forewarning to the UN and the major powers, the world bore silent and distant witness to apathy. That institutionalized international indifference remains one of the most shameful episodes since the Holocaust. This was not a matter of lack of knowledge and awareness, or even lack of capacity. Rather, it was a failure of collective conscience, of civic courage at the highest and most solemn levels of responsibility. The question that champions of humanitarian intervention posed was: what if a coalition of the willing had been prepared to move in with military force, but the Security Council was deadlocked? The genocide was the result of many factors that had been festering for decades. During Rwanda’s colonial history under Germany and later Belgium, the smaller Tutsi ethnic group (about 14 per cent of the population in 1994) was favoured for advancement over the larger Hutu ethnic group (about 85 per cent of the population at the time).12 This social, political, and economic inequality was large and widening. Rwanda’s demographic explosion exerted severe pressure on the land available for cultivation,13

Rwanda, Kosovo, and the ICISS    99 which was increasingly unable to support so many people; repatriated refugees from Uganda and Burundi, falling prices for cash crops, and progressive deforestation exacerbated matters. Added to the witch’s brew was a failed political system: authoritarian, corrupt, and prone to create and manipulate ethnic tensions. Rwanda was one of the most heavily aided countries in the world, with almost a quarter of its GNP from outside financing.14 However, most of this aid went to development projects that benefited the elite and exacerbated ethnic tensions.15 Against this combustible background, the 1994 slaughter had been foreshadowed by major outbreaks of ethnic violence in 1963 and 1988 between Hutus and Tutsis.16 President Juvenal Habyarimana died in an airplane crash thought to be an assassination carried out by extremist Tutsis in the Rwandan Patriotic Front (RPF). In response, Hutu extremists in the armed militias massacred 800,000 people in less than three months. From its base in Uganda, the RPF invaded and made steady gains, and by July controlled the country. Over 2 million refugees, both Hutus and Tutsis, fled into neighbouring countries. The Security Council’s late and incomplete response—​the latter was essentially subcontracted to France under Opération Turquoise—​in the face of advance warning, helped nudge the international community of states towards revisiting the notion of prevention and the principle of non-​intervention. While the major powers were determined not to use the word ‘genocide’ in order to avoid obligations to prevent or halt it, the UN was determined to stick narrowly and rigidly to its mandate not to use force to help the victims of the unfolding genocide either. According to the report of the inquiry conducted by the Organization for African Unity (OAU) panel of eminent persons, ‘both the Security Council and the UN Secretariat had compiled an entirely inglorious record in the months preceding the genocide . . . [and] the response after Habyarimana’s plane was shot down on 6 April does little to add to the credit of either’.17 On 7 April, Prime Minister Agathe Uwilingiyimana fled over the wall of her own Kigali residence and sought refuge at a nearby UN compound. The UN Force Commander Lt.-​Gen. Roméo Dallaire called Assistant Secretary-​General Iqbal Riza in New York to tell him that force might be required to save the Prime Minister, but was ordered not do so (beyond the mandate of protecting his troops). Within an hour Rwandan soldiers entered the UN compound and shot her to death. But on 9 April a cable to Dallaire from the then ​Under-​Secretary-​General for Peacekeeping Annan, signed by Riza, instructed him to facilitate French and Belgian commanders in evacuating their nationals and use his discretion to exceed his mandate for that purpose if necessary—​the only occasion on which he was permitted such individual discretion, never to protect the Rwandans.18 The skill, speed, and logistical efficiency displayed by Belgium, France, and the United States in evacuating their soldiers and nationals during the early days of the genocide reinforced Dallaire’s conviction that the rapid deployment of just 5,000 well-​trained and well-​armed professional troops in the early days of the genocide would have stopped or substantially reduced the tragedy. He sadly concluded that serving the UN goals is not high on the foreign policy priority of most countries. Instead, ‘What they want is a weak, beholden, indebted scapegoat of an organization, which they can blame for their failures or steal victories from.’19

100   Ramesh Thakur The storyline explains why some commentators held Annan responsible for the genocide and do not believe he paid an appropriate price for it: ‘Kofi Annan, who was head of the DPKO [Department of Peace-​Keeping Operations] at the time, went on to become Secretary-​General, taking with him his closest staff (including Riza as chief of cabnet), who had been central in the decision-​making process in Rwanda.’20 Annan himself confessed, in a speech at the UN on 26 March 2004 to mark the tenth anniversary of the genocide, that at the time, he thought he had done everything possible to rally the international community and mobilize support for the UN force in Rwanda. But now he believes he could and should have done more.21 Still, the overall conclusion of the OAU inquiry panel was that the ‘small number of major actors whose intervention could directly have prevented, halted or reduced the slaughter’ consisted of France, the United States, the United Kingdom, and Belgium.22 In addition, ‘the silence of the OAU and a large majority of African Heads of State constituted a shocking moral failure’.23 The report of the UN’s own inquiry panel, chaired by Sweden’s former Prime Minister Ingvar Carlsson, also concluded that the international community failed either to stop the genocide or to halt it once it had begun. It attributed the responsibility for these two failings to several actors, ‘in particular the Secretary-​General [Boutros Boutros-​Ghali], the Secretariat, the Security Council, UNAMIR [UN Assistance Mission for Rwanda] and the broader’ UN membership.24 There were two more conscience-​troubling cases in 1999. East Timor was devastated after a UN-​mandated referendum on independence when the occupying power, Indonesia, watched from the sidelines as armed militias backed by Indonesian troops unleashed mass killings and destruction on unarmed civilians. Kosovo became the last of a series of humanitarian disasters in the Balkans. Both were clearly predictable. Indonesia had routinely repressed its captive population since 1975, with an estimated 100,000 Timorese dead in the process. And President Slobodan Milošević had routinely demonstrated his intentions, especially in the province where in 1989 he had launched the pursuit of ‘Greater Serbia’ with a jingoistic speech invoking the Turks’ humiliating defeat of the Serbs six centuries earlier. Incendiary events were ignored, massacres followed and afterwards both Timor and Kosovo were the objects of major and costly humanitarian military operations succeeded by a substantial military presence to keep the peace.

Kosovo After Rwanda, the UN suffered its next reputational blow with the fall of the UN ‘Safe Area’ of Srebrenica in July 1995 and the slaughter of more than 7,000 Bosnian men and boys sheltering under the protection of Dutch UN peacekeepers. A peacekeeping operation in a theatre where there was no peace to keep, the UN Protection Force in former Yugoslavia (UNPROFOR) offered neither safety to the local people, solace to the displaced and dispossessed, nor even the consolation to the international community of having done the job to the best of their ability. It remains a stain on world conscience for

Rwanda, Kosovo, and the ICISS    101 passivity in the face of the calculated return of ‘evil’ to Europe. In the words of the official UN report, the Srebrenica tragedy ‘will haunt our history forever’.25 The horror in Yugoslavia unfolded in the context of a confused and incoherent Europe and an indecisive UN. Like Slovenia, Croatia, Macedonia, and Bosnia, Kosovo too wanted independence in the wake of the dissolution of Josip Tito’s Yugoslavia. Instead Kosovo lost the little autonomy it had and, along with Montenegro and Serbia, became an integral part of ‘rump-​Yugoslavia’, its predominantly Albanian population suppressed by a small Serb elite. As the Balkans war seemed to be grinding to a bloody stalemate, the Srebrenica massacre shamed NATO into bombing Bosnian Serb positions, which led in turn to the Dayton Accord (1995). NATO’s SFOR (Stabilization Force) and IFOR (Implementation Force) troops, along with the Organization for Security and Co-​ operation in Europe (OSCE) as the main civilian peace-​builder, with only minor UN involvement, underwrote slow progress in providing for basic stability and the rebuilding of Bosnia-​Herzegovina. Concluding that their concerns had been disregarded at Dayton, some radicalized Kosovars began to support the development of a paramilitary underground force known as the Kosovo Liberation Army (KLA). Serbia’s war against the KLA escalated between the years 1996–​8, with increasingly serious repercussions for Kosovo’s civilian population. Sickened by Milošević’s record of brutality in the Balkans and evasions and deceit in dealings with the Europeans and the UN, in 1999 the US decided on ‘humanitarian intervention’ in Kosovo. The allies concluded that for decisive and effective action against Milošević, the political solidarity and military cohesion of NATO was a more congenial framework for collective action than the UN Security Council. Following the Serb rejection of an ultimatum not crafted for acceptance, NATO began bombing Serb military facilities throughout Kosovo and Yugoslavia on 24 March 1999. In retaliation, during almost three months of bombing, Serb military and paramilitary forces terrorized the Albanian population in Kosovo, drove hundreds of thousands out of the country and committed unspeakable atrocities against the local population. Yugoslavia bitterly denounced NATO strikes as illegal aggression on a sovereign state. Its traditional ally Russia strongly opposed NATO’s war against Yugoslavia and distanced itself from previous rapprochement with the West. China was deeply wounded by the ‘accidental’ NATO bombing of its embassy in Belgrade. The UN found itself sidelined by NATO. Annan, who had been head of UN peacekeeping at the time of the Srebrenica tragedy as well as genocide in Rwanda, was torn between criticism of the illegality of NATO actions and sympathy for the victims of Serb atrocities. With Russian assistance and G8 (the group of seven industrialized states plus Russia) involvement, the war was brought to an end and Yugoslav troops withdrew from Kosovo. A UN-​led peacekeeping mission established a de facto protectorate in Kosovo, supported by a military presence (KFOR) with a large NATO component but also a Russian element. Most refugees returned home. Bouts of reverse ethnic cleansing broke out against local Serb and Roma populations but gradually over the coming years the security situation stabilized.

102   Ramesh Thakur

Policy Controversy: An Emerging Norm of Humanitarian Intervention? Genocide in Rwanda had left the international community with a deep sense of shame at having averted its gaze from the unfolding slaughter. NATO intervention in Kosovo ignited a fierce international controversy on the Atlantic allies’ claim of an emerging new norm of ‘humanitarian intervention’. NATO may well have acted illegally in terms of its own constitution, the UN Charter, and state practice. This position was articulated most forcefully by China, Russia, and India (as well as Serbia). For most Westerners, NATO is an alliance of democracies and as such a standing validation of the democratic peace thesis. For former colonies, one of the more notable features of NATO is that it is a military alliance of former colonial powers. Although not all NATO members are former colonial powers, every major former European colonial power is a member of NATO. For Russia, NATO includes France and Germany and there is always the input of historical trauma with painful memories of the bitter invasions of Russia by Napoleon and Hitler. China too has suffered invasions and humiliations at the hands of the major Western powers. In the collective view of Russia, China, and the Non-​Aligned Movement (NAM), neither the UN Charter nor the corpus of modern international law incorporates the right to ‘humanitarian intervention’. According to the weight of legal opinion and authority, the prohibition on the use of force had become a peremptory norm of international law from which no derogation is allowed and NATO was not permitted to contract out even at the regional level.

The Case for NATO Intervention: Filling a Critical Protection Gap . . . Kosovo was a setback to the cause of slowly but steadily outlawing the use of force in solving disputes except under UN authorization. NATO action was neither explicitly authorized nor prohibited by any UN resolution. NATO leaders argued that military action outside the UN framework was not their preferred option of choice. Rather, NATO’s resort to force was a critical comment on the institutional hurdles to effective and timely action by the UN. Serbian atrocities in Kosovo challenged some of the cherished UN values. Had Milošević been allowed to get away with his murderous campaign of ethnic cleansing, the net result would have been a fundamental erosion of the idealistic base on which the UN structure rests. The campaign against Serbia took place in the context of a history of defiance of increasingly tough UN resolutions by Milošević. Moreover, the Security Council had relied progressively on NATO as its enforcement arm in the Balkans over the 1990s. NATO actions in Kosovo were thus a logical extension and evolution of a role already sanctioned by the Security Council. Czech President Václav Havel famously described the Kosovo war as one fought over ‘principles and

Rwanda, Kosovo, and the ICISS    103 values’ rather than national interests that showed, not disrespect for international law, but respect for the higher law of human rights than of state sovereignty.26 Similarly NATO Secretary-​General Javier Solana proclaimed that for the first time, ‘an alliance of sovereign states fought not to conquer or preserve territory but to protect the values on which the alliance was founded’.27 Support for this line of argument can be found in the UN’s official report on Srebrenica. Acknowledging at least partial responsibility for the tragedy, the report in effect concluded that the UN peacekeeping philosophy of neutrality and non-​violence was unsuited to the conflict in Bosnia. It judged that ‘the approach of the international community was wholly inadequate to the Serb campaign of ethnic cleansing and mass murder which culminated in Srebrenica. Evil must be recognized as such and confronted by the international community; the UN’s commitment to ending conflicts, far from precluding moral judgment, makes it all the more necessary.’28

. . . Or Opening New International Fault Lines? Mobilizing domestic support for a short and swift war against an enemy who has been successfully demonized does not automatically translate into building a new regime for interventions that has general acceptance in the international community. As Michael Glennon noted, ‘Justice . . . requires legitimacy; without widespread acceptance of intervention as part of a formal justice system, the new interventionism will appear to be built on neither law nor justice, but on power alone.’29 The template of robust ‘humanitarian intervention’ and foreign-​led ‘regime change’ was indeed to prove too rusty in Iraq in 2003. Raju Thomas attributes the ‘self-​righteous and one-​sided perspectives and policies’ animating NATO in Kosovo to the end of the Cold War, the collapse of countervailing power, and the ascendancy of ‘a new moral liberalism which emphasized global humanitarianism’.30 In rejecting UN constraints, NATO chose not to play by the rules of the game when the result was not to its liking. More worryingly, no system was put in place instead of the UN. If unilateral intervention in defence of the rights of minority peoples was permitted, the weak states could lose protection against the dominant and assertive international moral majority big powers. The case for NATO strikes on Serbia was not made with persuasive enough force to overcome the presumption of doubt—​ the humanitarian case was asserted, not argued. Just as anyone who attempted to question the humanitarian warriors over the case for Iraq risked being branded an apologist for Saddam Hussein in 2003, so those critical of the NATO intervention in 1999 risked being accused of standing shoulder-​to-​shoulder with the butcher of Belgrade. ‘Humanitarianism’ was married to ‘war’ in a clever and successful ploy to label opponents of the war as anti-​humanitarian. The moral urgency underpinning NATO actions, and the military success of those actions, would in due course shape legal justification to match the course of action.31 Efforts to demonize Milošević deflected attention from those who until recently were branded terrorists by Western governments32 and by the Security Council,33 but in 1999

104   Ramesh Thakur became the principal beneficiaries of the bombing. By fighting and defeating Serbia, NATO became the tool for the KLA policy of inciting Serb reprisals through terrorist attacks in order to provoke NATO intervention.34 The role of outside intervention in promoting territorial disintegration rather than preventing genocide was downplayed. Annan subsequently acknowledged that his call for a debate on the challenge of humanitarian intervention led to fears that the concept ‘might encourage secessionist movements deliberately to provoke governments into committing gross violations of human rights in order to trigger external interventions that would aid their cause’.35

Kosovo as Precedent Most NATO countries insisted their action did not set a precedent. The Iraq war proved the claim false: the attempt ‘to limit the reach of the Kosovo precedent did not prevent the advocates of the Iraq war from invoking it to justify toppling Saddam’.36 The argument that NATO had no intention to set a precedent is less relevant than that its actions were interpreted by others as having done so. Can the Arab League claim the commensurate right to determine—​on its own—​that Israel is guilty of gross human rights atrocities against Palestinians and the League should intervene with military force in their defence? To say that they lack the power or military capacity to do so is to say that might makes right. The worst-​case scenario would be to encourage states to acquire nuclear weapons. Sha Zukang, China’s chief arms control negotiator, used Kosovo as the alibi for missiles exports.37 At the Third Preparatory Committee (PrepCom) meeting of the Nuclear Non-​Proliferation Treaty (NPT) 2000 Review Conference in New York in May 1999, ‘though the Chinese were the only ones publicly to wonder if NATO would have bombed Belgrade if Yugoslavia had also been nuclear armed, there were many in the corridors who made the obvious connection’.38 In India, the same point was made by a former foreign secretary39 and a leading newspaper.40 Western criticisms of the Russian use of massive force against Chechnya later in 1999 drew angry reminders of NATO action in Kosovo: an international war, as opposed to Russia’s actions within its borders, noted Russian commentators. Alexei Arbatov, deputy chair of the Russian State Duma (Parliament) Defence Committee, argued that NATO’s attack on Serbia suddenly removed a Russian taboo against the use of military force in Chechnya.41 Fifteen years later the Kosovo ‘precedent’ was hurled at US and European criticism of Russia’s actions in Crimea and eastern Ukraine. Speaking after the reincorporation of Crimea into Russia in March, President Vladimir Putin was both explicit and expansive in justifying Russia’s actions by recalling Kosovo. According to Putin, ‘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 doing now, was legitimate and did not require any permission from the country’s central authorities’. Furthermore, he said, in its ruling on 22 July 2010, the ICJ had held that ‘ “General international law contains no prohibition on declarations of independence.”

Rwanda, Kosovo, and the ICISS    105 Crystal clear, as they say.’ He also recalled that in its submission on the case, the United States had argued that while unilateral declarations may violate domestic law of the parent country, ‘this does not make them violations of international law’. Rejecting the US and European argument ‘that Kosovo is some special case’, he pointed to the severe casualties in Kosovo compared to the absence of casualties in Crimea and concluded: ‘This is not even double standards; this is amazing, primitive, blunt cynicism.’42 Speaking at the Valdai Club of Russia experts in Sochi on 24 October 2014, Putin mentioned Kosovo three times to repeat his arguments from March in forceful language.43 Foreign Minister Sergei Lavrov echoed the argument that those who used military force to dismember Serbia in 1999 have little moral authority to insist Crimea must be returned to Ukraine regardless of its people’s wishes: ‘Attempts by those who staged the secession of Kosovo from Serbia . . . to question the free will of Crimeans cannot be viewed as anything but a flagrant display of double standards.’44 It is worth recalling that in 1999, Ambassador Lavrov was Russia’s Permanent Representative to the United Nations (1994–​ 2004). Most poignantly in this context, the person most responsible for the transformation of the former Soviet Union into Russia, Mikhail Gorbachev, also shares this view. In an interview with Der Spiegel, he said: ‘NATO intervened militarily in the Yugoslavian civil war without the consent of the United Nations. That was a precedent-​setting case’ that ‘No Kremlin leader can ignore’.45 It seems fair to conclude, therefore, that the NATO intervention in Kosovo is deeply seared into the Russian consciousness as a precedent.

Relitigating Humanitarian Intervention Thus Kosovo was the terrain on which the rules of post-​Cold War intervention were rewritten and the controversy resonates to this day. The Independent International Commission on Kosovo, chaired by Richard Goldstone and Carl Tham, concluded that NATO’s intervention was illegal but legitimate.46 The legality/​legitimacy distinction is problematical for it rests on an implicit hierarchy of norms.47 If UN Charter proscriptions on the threat and use of force can be set aside, the justification for this must necessarily rest on the existence of a higher order of norms which override Charter clauses.48 Conceding to any regional organization the authority to decide when political legitimacy may override legal technicality would make a mockery of the entire basis of the strictly limited and increasingly constricted recourse to force for settling international disputes. Conversely, restricting the right solely to NATO is ‘an open argument for law-​making by an elite group of Western powers sitting in judgement over their own actions’.49 A normative commitment to the rule of law implies a commitment to the principle of relations being governed by law, not power. It also implies a willingness to accept the limitations and constraints of working within the law, in specific instances if necessary against individual notions of just or illegitimate outcome. The best that can be said of the NATO actions was that it fell into and enlarged a ‘grey area’ between lawfulness and legitimacy, where the use of force is neither condemned nor condoned, but tolerated.

106   Ramesh Thakur Many Russians concluded that perhaps all these years the Warsaw Pact had held NATO in check and not the other way round. China was traumatized by the US bombing of its embassy in Belgrade and did not accept repeated assurances that the attack was an accident. Both China and Russia were shaken by the ease with which NATO evaded the requirement of UN authorization for the international use of force and both, along with NAM, challenged any emerging doctrine of humanitarian intervention.50 The majority of developing countries were strongly opposed to NATO intervention in Kosovo. Because the UN Charter encapsulates the international moral code and best-​ practice international behaviour, the urge to ‘humanitarian intervention’ by powerful states, coalitions of the willing, or regional organizations outside their own area of operations had to be bridled by the legitimating authority of the international organization. Thus the question of lawful-​cum-​legitimate intervention cannot be separated from the question of the authoritative determination of just cause and justified response: who, under what rules of evidence and procedure, can rightfully decide on what is to be done? Is UN authorization a sufficient condition for overseas military action to be lawful and legitimate? If UN authorization is not a necessary condition, then either we accept the resulting international anarchy and the law of the jungle in world affairs, or we spell out the preferred alternative set of rules and the institutions and regimes in which they are embedded.

Policy Innovation: ICISS and the Responsibility to Protect NATO’s self-​proclaimed ‘humanitarian intervention’ in Kosovo in 1999 set off a debate whose intensity and breadth failed to be appreciated by many Western commentators because they do not habitually read the opinions expressed outside the dominant transatlantic policy, academic, and media communities. The UN is an organization dedicated to the territorial integrity, political independence, and national sovereignty of its Member States and the maintenance of international peace and security on that basis. But the overwhelming majority of contemporary armed conflicts are internal and civilians comprise the dominant portion of casualties. This presents the UN with a great difficulty: how to reconcile its foundational principle of Member States’ sovereignty with the primary mandate to maintain international peace and security and the equally compelling mission to promote the interests and welfare of ‘We the peoples of the United Nations’. Kofi Annan discussed the dilemma in the conceptual language of two sovereignties of the state and the people.51 The triple policy dilemma can be summarized thus: • to respect sovereignty all the time is to be complicit in humanitarian tragedies sometimes; • to argue that the UN Security Council must give its consent to international intervention for humanitarian purposes is to risk policy paralysis by handing over the agenda either to the passivity and apathy of the Council as a whole, or to the most

Rwanda, Kosovo, and the ICISS    107 obstructionist member of the Council, including any one of the five permanent members (P5) determined to use the veto clause; • to use force without UN authorization is to violate international law and undermine world order. The three propositions together highlighted a critical gap between the needs and distress felt in the real world and the codified instruments and modalities for managing world order.52 Faced with another Holocaust or Rwanda-​type genocide on the one hand, and a Security Council veto on the other, what would the world do? Under the impact of contrasting experiences in Rwanda and Kosovo, Annan urged Member States to come up with a new consensus on the competing visions of national and popular sovereignty and the resulting ‘challenge of humanitarian intervention’.53 Responding to Annan’s call for an urgently needed new consensus, Foreign Minister Lloyd Axworthy initiated the Canadian-​sponsored but independent ICISS under the enlightened leadership of two wise, experienced, and widely respected co-​chairs, Gareth Evans54 and Mohamed Sahnoun.55 ICISS wrestled with the whole gamut of difficult and complex issues involved in the debate. Its report sought to change the conceptual language from ‘humanitarian intervention’ to ‘the responsibility to protect’, pin that responsibility on state authorities at the national and the Security Council at the international level, and ensure that interventions, when they do take place, are done properly.56 In the extensive outreach and consultations exercise undertaken by ICISS in every continent over the course of 2001,57 nowhere was there an absolute rejection of intervention. In all consultations, people were prepared to concede that sometimes, outsiders may indeed have to step in with military force to protect innocent victims from perpetrators of mass killings and ethnic cleansing. After the genocide in Rwanda, very few policy-​makers, pundits, or practitioners excluded protective intervention in principle as a last resort that is necessary under some tragic contingency. In every single case, when pressed, people preferred the option of ‘No more Rwanda’ where genocide took place with no intervention, to ‘No more Kosovo’ where there was intervention outside the framework of UN authorization. The 12 members of ICISS reflected a wide spectrum of opinion on the necessity, legality, legitimacy, and acceptability of NATO intervention in Kosovo. While some opinions might have softened and shifted over the course of the year as we listened to evidence and arguments from governments, international civil servants, humanitarian agencies, civil society, and one another, no consensus would have been achievable even at the end of the process. This was indicated in the co-​chairs’ ‘Foreword’ wherein they noted that the Commissioners disagreed on the threshold for permissible intervention, and on the flexibility to launch protective action when the Security Council was deadlocked. But the Commissioners were unanimous in their abhorrence of the passivity and inaction shown in Rwanda. To that extent, faced with a choice between no action in Rwanda and non-​UN authorized collective intervention in Kosovo, reflecting the overwhelming weight of international opinion, almost certainly the 12 would have unanimously described the former as the greater evil.

108   Ramesh Thakur What can be said irrefutably is that the two episodes framed the discussion, thinking, and evolution of a consensus in the Commission’s deliberations and conclusions. This found expression in the formal report of the Commission. The first chapter framed the policy challenge. The two opening paragraphs noted that ‘Rwanda in 1994 laid bare the full horror of inaction’ (paragraph 1.1) while ‘Kosovo—​where intervention did take place in 1999—​concentrated attention on all the other sides of the argument. The operation raised major questions about the legitimacy of military intervention in a sovereign state’ (1.2). Along with Bosnia and Somalia, these cases ‘had a profound effect on how the problem of intervention is viewed, analyzed and characterized’ (1.4). The report also recalled that Kofi Annan had been motivated by ‘the failures of the Security Council to act in Rwanda and Kosovo’ to challenge Member States in 1999 ‘to “find common ground in upholding the principles of the Charter, and acting in defence of our common humanity”’ (1.6). Both the intervention dilemma and the challenge to find new common ground were repeated by Annan in his Millennium Report one year later: if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica—​to gross and systematic violations of human rights that offend every precept of our common humanity?58

The rest, as they say, is history. The impressive cast of well-​known practitioners and academics brought together in this Handbook is itself powerful testimony to the enduring policy and scholarly impact of the Commission’s product.

Notes 1. Cronin 2005. 2. This journey is traced in Thakur 2006. 3. For an analysis of inconsistency, incoherence, and contestation among different norms, see Thakur 2011, pp. 177–​95. 4. The case of the NATO-​led intervention in Libya in 2011 shows that an R2P intervention can also attract international controversy; see Thakur 2013a. 5. See Chapter 5 in this Handbook by Roberta Cohen and Francis Deng, architects of the original formulation of sovereignty as responsibility. 6. See Bellamy 2015. 7. Stowell 1921, quoted in International Commission on Intervention and State Sovereignty (ICISS) 2001, p. 17. 8. Henkin 1989, pp. 47, 56. 9. Bull 1984. 10. Akehurst 1984, p. 111. 11. See Chapter 4 by Thomas G. Weiss in this Handbook. 12. Weiss 2005, p. 97. 13. Diamond 2005. 14. Weiss 2005, p. 98. 15. Uvin 1998.

Rwanda, Kosovo, and the ICISS    109 16. 17. 18. 19. 20.

Prunier 1995. OAU 2000, para. 15.1. OAU 2000, paras. 15.4, 15.6, and 15.7. Dallaire 2003, p. 90. Adelman and Suhrke 2004, pp. 495–​6. See also Ahlmark (former deputy prime minister of Sweden) 2004. 21. My own notes from that event. 22. OAU 2000, para. 15.40. 23. OAU 2000, para. 15.87. See also Mamdani 2001; Melvern 2000; and Power 2003. 24. UN 1999b, p. 30. 25. UN 1999a, para. 503. 26. In a speech originally delivered to a joint sitting of Canada’s houses of parliament in Ottawa on 29 April 1999, subsequently reprinted as Havel 1999, p. 6. 27. Solana 1999, p. 114. 28. Annan 1999d, para. 502. 29. Glennon 1999, p. 7. 30. Thomas 2003, p. xi. 31. For development of this line of argumentation, see in particular Henkin 1999; and Wedgwood 1999. For the structural link of Wedgwood’s argument to Iraq, see Wedgwood 2006. 32. Thus a former US Ambassador to Yugoslavia (1977–​81) and subsequently Secretary of State (1992–​3), in an article not exactly friendly to Milošević:  ‘The Kosovo Liberation Army earned its reputation as a terrorist group’ (emphasis added); Eagleburger 1999. 33. Security Council resolution 1160 (31 March 1998). Its preamble condemned ‘the use of excessive force by Serbian police forces against civilian and peaceful demonstrators in Kosovo, as well as acts of terrorism by the Kosovo Liberation Army’. 34. ‘The KLA’s success between 1997 and 1999 was a vintage demonstration of how to exploit the human rights conscience of the West in order to incite an intervention that resulted eventually in guerrilla victory’; Ignatieff 2001, p. 45. For a succinct account of the KLA strategy as well as a discourse on the many ‘subtexts’ underlying NATO campaign, see McGwire 2000. McGwire is sceptical of the claim that humanitarianism had displaced geopolitical interests as the principal motive. 35. Annan 2000, p. 48. 36. Tucker and Hendrickson 2004, p. 31. 37. Mann 2000; Gordon 2001. 38. Johnson 1999, p. 16. 39. Dubey 1999. 40. TOI 1999. 41. Arbatov 2000. 42. Putin 2014a. 43. Putin 2014b. 44. Lavrov 2014. 45. Gorbachev 2015. 46. Kosovo Report 2000. Other works that can be traced to the debate launched in the aftermath of the Kosovo crisis include Annan 1999d; Frye 2000; Humanitarian Intervention 2000; DIIA 2000; and Schnabel and Thakur 2000. 47. Shinoda 2000, pp. 528–​31.

110   Ramesh Thakur 48. The same applies when citizens’ moral frameworks lead them to defy laws in the unshakeable conviction that their conscience answers to God, not to men. However, in apartheid South Africa, in colonial India, and in any situation where conscience dictates that individuals resist laws they regard as unjust and illegitimate, citizens accept the resulting punishment meted out by the legal process as the necessary price for acting on the basis of their core beliefs. By contrast, in international affairs, the legitimacy/​legality distinction is invoked to seek escape from any penalty for acting outside the law: Kosovo may have been illegal, but our intervention was legitimate and we deserve praise and reward, not blame and punishment. This is why the distinction grated among critics of the NATO intervention, as did the dismissive response from those who waged war on Iraq in 2003 that they will answer to their Maker. Critics would prefer international criminal accountability in this world to eternal judgement in the next. 49. Chandler 2002, p. 135. 50. See Baranovsky 2000; Zhang 2000; Nambiar 2000; and Nel 2000. 51. Annan 1999b. 52. For my analysis of protection gaps that remain post-​R2P, see Thakur 2013b. 53. Annan 1999a. 54. Axworthy and Evans offer their thoughts in separate chapters in this Handbook. 55. For an analysis of international commissions as norm and policy brokers in the Oxford Handbooks series, see Thakur forthcoming. 56. ICISS 2001. 57. See Thakur 2006, pp. 268–​74. 58. Annan 1999c, p. 48.

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Rwanda, Kosovo, and the ICISS    111 Baranovsky, Vladimir (2000). ‘Russia: Reassessing National Interests’, in Albrecht Schnabel and Ramesh Thakur (eds.), Kosovo and the Challenge of Humanitarian Intervention: Selective Indignation, Collective Action, and International Citizenship (Tokyo:  United Nations University Press), pp. 101–​16. Bellamy, Alex (2015). ‘The Responsibility to Protect and the Just War Tradition’, in Ramesh Thakur and William Maley (eds.), Theorising the Responsibility to Protect (Cambridge: Cambridge University Press), pp. 181–​99. Bull, Hedley (1984). ‘Intervention in the Third World’, in Hedley Bull (ed.), Intervention in World Politics (Oxford: Clarendon Press), pp. 135–​56. Chandler, David (2002). From Kosovo to Kabul: Human Rights and International Intervention (London: Pluto). Cronin, Bruce (2005). ‘International Legal Consensus and the Control of Excess State Violence’, Global Governance 11(3): 300–​11. Dallaire, Roméo (2003). Shake Hands with the Devil:  The Failure of Humanity in Rwanda (Toronto: Random House Canada). Danish Institute of International Affairs (DIIA) (1999). Humanitarian Intervention: Legal and Political Aspects (Copenhagen: Danish Institute of International Affairs). Diamond, Jared (2005). Collapse: How Societies Choose to Fail or Succeed (New York: Viking). Dubey, Muchkund (1999). ‘The NATO Juggernaut:  Logic of an Indian Defence Deterrent’, Times of India (Delhi), 8 April. Eagleburger, Lawrence S. (1999). ‘Taking a Stand Against the Milosevics of the Future’, International Herald Tribune, 5 April. Frye, Alton (2000). Humanitarian Intervention:  Crafting a Workable Doctrine (New  York: Council on Foreign Relations). Glennon, Michael J. (1999). ‘The New Interventionism: The Search for a Just International Law’, Foreign Affairs 78(3): 2–​7. Gorbachev, Mikhail (2015). ‘Gorbachev Interview:  “I Am Truly and Deeply Concerned”’, interview conducted by Matthias Schepp and Britta Sandberg, Spiegel Online International, 16 January. (accessed 25 January 2015). Gordon, Michael R. (2001). ‘China Looks to Foil Missile Defense’, International Herald Tribune, 30 April. Havel, Vaclav (1999). ‘Kosovo and the End of the Nation-​State’, New York Review of Books, 46(10) (10 June), text of speech originally delivered to a joint sitting of Canada’s houses of parliament in Ottawa on 29 April 1999. (accessed 25 January 2015). Henkin, Louis (1989). ‘Use of Force: Law and U.S. Policy’, in Louis Henkin, Stanley Hoffmann, Jeane K.  Kirkpatrick, Allan Gerson, William D.  Rogers, and David J.  Scheffer, Right v. Might: International Law and the Use of Force (New York: Council on Foreign Relations), pp. 37–​69. Henkin, Louis (1999). ‘Kosovo and the Law of “Humanitarian Intervention”’, American Journal of International Law 93(4): 824–​8. Humanitarian Intervention (2000). Advisory Report no. 13 (The Hague: Advisory Council on International Affairs). Ignatieff, Michael (2001). Human Rights as Politics and Idolatry, ed. and introd. Amy Gutmann (Princeton, NJ: Princeton University Press).

112   Ramesh Thakur International Commission on Intervention and State Sovereignty (ICISS) (2001). The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre). International Commission on Intervention and State Sovereignty (ICISS) (2001). The Responsibility to Protect: Research, Bibliography, Background (Ottawa: International Development Research Centre). Johnson, Rebecca (1999). ‘NPT Report’, Disarmament Diplomacy 37 (May). (accessed 24 January 2015). Kosovo Report (2000). Kosovo Report:  Conflict, International Response, Lessons Learned (Oxford: Oxford University Press). Lavrov, Sergei (2014). ‘It’s Not Russia that is destabilising Ukraine’, Guardian (London), 8 April. McGwire, Michael (2000). ‘Why Did We Bomb Belgrade?’, International Affairs 76(1): 1–​23. Mamdani, Mahmood (2001). When Victims Become Killers:  Colonialism, Nativism, and the Genocide in Rwanda (Princeton, NJ: Princeton University Press). Mann, Jim (2000). ‘Quietly, US and China Negotiate Arms Control’, International Herald Tribune, 6 October. Melvern, Linda (2000). A People Betrayed: The Role of the West in Rwanda’s Genocide (London and New York: Zed Books). Nambiar, Satish (2000). ‘India:  An Uneasy Precedent’, in Albrecht Schnabel and Ramesh Thakur (eds.), Kosovo and the Challenge of Humanitarian Intervention: Selective Indignation, Collective Action, and International Citizenship (Tokyo: United Nations University Press), pp. 260–​9. Nel, Philip (2000). ‘South Africa:  The Demand for Legitimate Multilateralism’, in Albrecht Schnabel and Ramesh Thakur (eds.), Kosovo and the Challenge of Humanitarian Interven­ tion: Selective Indignation, Collective Action, and International Citizenship (Tokyo: United Nations University Press), pp. 245–​59. Organization for African Unity (OAU) (2000). Rwanda: The Preventable Genocide. Report of the OAU’s International Panel of Eminent Personalities (Addis Ababa: OAU), 31 May. (accessed 24 January 2015). Power, Samantha (2003). A Problem from Hell:  America and the Age of Genocide (New York: HarperCollins). Prunier, Gérard (1995). The Rwanda Crisis:  A  History of a Genocide (New  York:  Columbia University Press). Putin, Vladimir (2014a). ‘Address by President of the Russian Federation’, The Kremlin, Moscow, 18 March. (accessed 24 January 2015). Putin, Vladimir (2014b). Transcript of the Meeting of the Valdai International Discussion Club, Sochi, 24 October. (accessed 24 January 2015). Schnabel, Albrecht and Ramesh Thakur (eds.) (2000). Kosovo and the Challenge of Humanitarian Intervention:  Selective Indignation, Collective Action, and International Citizenship (Tokyo: United Nations University Press). Shinoda, Hideaki (2000). ‘The Politics of Legitimacy in International Relations:  A  Critical Examination of NATO’s Intervention in Kosovo’, Alternatives 25(4): 515–​36. Solana, Javier (1999). ‘NATO’s Success in Kosovo’, Foreign Affairs 78(6): 114–​20. Stowell, Ellery (1921). Intervention in International Law (Washington, DC: J. Byrne). Thakur, Ramesh (2006). The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge: Cambridge University Press).

Rwanda, Kosovo, and the ICISS    113 Thakur, Ramesh (2011). The Responsibility to Protect:  Norms, Laws and the Use of Force in International Politics (London: Routledge). Thakur, Ramesh (2013a). ‘R2P after Libya and Syria: Engaging Emerging Powers’, Washington Quarterly 36(2): 61–​76. Thakur, Ramesh (2013b). ‘Protection Gaps for Civilian Victims of Political Violence’, South African Journal of International Affairs 20(3): 321–​38. Thakur, Ramesh (forthcoming). ‘High-​Level Panels’, in Jacob Cogan, Ian Hurd, and Ian Johnstone (eds.), The Oxford Handbook of International Organizations (Oxford:  Oxford University Press). Thomas, Raju G. C. (2003). ‘Prologue: Making War, Peace and History’, in Raju G. C. Thomas (ed.), Yugoslavia Unraveled:  Sovereignty, Self-​determination, Intervention (Lanham, MD: Lexington Books), pp. vii–​xx. TOI (1999). ‘Might on Show’, editorial, Times of India, 2 April. Tucker, Robert W. and David C. Hendrickson (2004). ‘The Sources of American Legitimacy’, Foreign Affairs 83(6): 18–​32. United Nations (1999a). Report of the Secretary-​ General Pursuant to General Assembly Resolution 53/​35: The Fall of Srebrenica, A/​54/​549, 15 November. (accessed 24 January 2015). United Nations (1999b). Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, S/​1999/​1257, 16 December. (accessed 24 January 2015). Uvin, Peter (1998). Aid and Violence:  The Role of Development Assistance in the Rwandan Genocide (West Hartford, CT: Kumarian). Wedgwood, Ruth (1999). ‘NATO’s Campaign in Yugoslavia’, American Journal of International Law 93(4): 828–​34. Wedgwood, Ruth (2006). ‘The Multinational Action in Iraq and International Law’, in Ramesh Thakur and W. P. S. Sidhu (eds.), The Iraq Crisis and World Order: Structural, Institutional and Normative Challenges (Tokyo: United Nations University Press), pp. 413–​25. Weiss, Thomas G. (2005). Military–​ Civilian Interactions:  Humanitarian Crisis and the Responsibility to Protect, 2nd edn. (Lanham, MD: Rowman & Littlefield). Zhang Yunling (2000). ‘China: Whither the World Order after Kosovo?’, in Albrecht Schnabel and Ramesh Thakur (eds.), Kosovo and the Challenge of Humanitarian Intervention: Selective Indignation, Collective Action, and International Citizenship (Tokyo:  United Nations University Press), pp. 117–​27.

Chapter 7

The Genesi s  of R2 P Kofi Annan’s Intervention Dilemma Charles Cater and David M. Malone

Normative development occurs at the United Nations in a variety of ways, including, for example, the negotiation of treaties encompassing new principles, practices, or procedures; resolutions of the General Assembly; and through the cumulative impact of resolutions of the Security Council as it experiments with new approaches. The emergence of the responsibility to protect (R2P) concept did not follow any of these paths, until it was accepted by the Outcome Document of the UN World Summit of 2005, an expression of the General Assembly at the level of heads of government. Its development resulted from a particular set of circumstances arising during the Kosovo conflict of 1999; subsequent debates, private consultations, the work of an independent international commission; and then, after another set of particular political circumstances involving Iraq in 2003, the conclusions of a High-​Level Panel appointed by the Secretary-​General. At no point was its adoption in 2005 inevitable or even probable. This chapter provides a history of the evolution the R2P concept from the autumn of 1999 to its adoption in the World Summit Outcome Document of September 2005. The text proceeds in six sections. The first section outlines the circumstances that called out for ‘new thinking’ on the protection of civilians, particularly the genocide in Rwanda in 1994 and the massacre at Srebrenica in 1995. The second section reviews debates within UN circles on humanitarian intervention and related topics. The third part concerns the formation by the government of Canada of the International Commission on Intervention and State Sovereignty (ICISS), whose report of December 2011, The Responsibility to Protect, at first seemed likely to be overshadowed by the aftermath of the 9/​11 terrorist attacks on New York and Washington only months earlier. The subsequent section documents: the High-​Level Panel on Threats Challenges and Change appointed in 2003 by UN Secretary-​General Kofi Annan and its report A More Secure World: Our Shared Responsibility of December 2004; and the Secretary-​General’s own report setting the stage for the 2005 Summit, In Larger Freedom: Towards Development, Security and Human Rights For All. The last two sections cover some of the dynamics

Kofi Annan’s Intervention Dilemma    115 of negotiations and the content of the Outcome Document agreed upon at the Summit later that year. We then conclude by identifying critical factors which made the inclusion of R2P within the World Summit Outcome Document possible and speculate on how R2P may evolve in the future at the level of international practice.

Rwanda, Srebrenica, and the UN The roots of the debate that led to the emergence of the R2P concept go back to several major UN set-​backs costing many civilian lives in the early 1990s.1 The UN’s involvement in the former Yugoslavia, initially one designed to reverse the tide of refugees fleeing to neighbouring countries, grew incrementally to include the promise of protection to civilians compressed into several ‘safe areas’ in the midst of Bosnian war zones. Of these, Srebrenica was to become the most infamous. The UN forces protecting these zones were entirely inadequate to the task in numbers and in equipment, particularly relative to what the Secretary-​General had recommended for the task to the Security Council. Council members would neither provide nor fund resources sufficient for this risky mission. Further, UN staff wrestled with a major split amongst the proponents of an active UN role in Bosnia. The West European countries were convinced that a variation of classic UN peacekeeping could keep a lid on the turmoil. The United States, which was proved right ultimately, believed that only more forceful steps (North Atlantic Treaty Organization (NATO) bombing, the arming of Croatia’s forces) could reverse the tide. Policy confusion reigned while death claimed many non-​combatants. And the slaughter by Serb forces of thousands of men and boys marched out of the Srebrenica safe area ultimately undefended by either the UN or NATO was largely the result of unsatisfactory compromises, mixed signals, the absence of effective overall strategy, and smaller tactical mistakes by international actors at all levels, compounded by local manoeuvres for advantage and the intent of the Serb aggressors. The failure of the UN to respond to the genocide in Rwanda in April 1994 was less the result of confusion than of fall-​out from the collapse of a UN peacekeeping effort in Somalia after the death in 1993 of a number of US paratroopers operating in parallel to the UN when their helicopter was downed by local forces, an episode dramatized in the 2001 film Black Hawk Down. Humanitarian and other well-​intentioned engagements in Africa were no longer seen as a priority by the United States and more widely within the Security Council. As a result, a number of clear warnings of impending ethnic strife in Rwanda were ignored both in the UN Secretariat and by key UN Member States. The small UN peacekeeping operation in the country, after absorbing gruesome casualties at the hands of the génocidaires, was withdrawn rather than reinforced by the Security Council, with shocking results (although a small rump force of UN troops did manage to save many lives in the Kigali stadium and elsewhere amidst the generalized slaughter of Tutsis). None of the Permanent Five (P5) members of the Council emerged with honour. Nevertheless, the Council’s President in April 2004, Colin Keating of New Zealand,

116    Charles Cater and David M. Malone drawing in part on information provided by non-​governmental organizations (NGOs) as well as the Nigerian delegation led by Ibrahim Gambari, did a great deal to highlight the reality on the ground, eventually shaming the Council into belated motion.2 Reaction at the international level to these disasters occasioning extreme costs in human lives ranged from relative indifference to rationalizations and, in due course, largely unconvincing national inquiries, with a frank apology coming only from US President Clinton, well after the fact. Meanwhile, those at the UN most involved, including UN Under-​Secretary-​General for Peacekeeping Operations Kofi Annan and several of his closest associates, were deeply scarred by the experience. For some, these experiences increased their resolve to tackle future challenges more decisively. As Annan concludes in his biography: From the Department of Peacekeeping Operations to the office of the Secretary-​ General, I took with me, above all, the lessons of Bosnia and Rwanda. Evil in civil war zones occurs due to the will of the conflict protagonists, which must be rounded upon, confronted and stopped—​and through force if necessary.3

When they perceived the emergence in Kosovo in 1998 of a ‘Bosnia in slow motion’ all over again, Annan, by now UN Secretary-​General, spoke out in favour of concerted international action to avert a repeat of avoidable civilian casualties. The theme came up in several of his prominent speeches at the time: NATO in June 1998 and January 1999, the UN Human Rights Commission in April 1999, and the Centennial of the First International Peace Conference in The Hague in May 1999.4 Views within the UN Secretariat and among Member States were divided, sometimes quite sharply. Deep suspicion of Western motives was pervasive among a number of formerly colonized countries and highly respected figures from the developing world. Attachment to the absolute sovereignty of states was evident not just among nostalgists of the Cold War and many decolonized countries but also among a range of UN officials—​taking a prudent UN law view—​who proffered what they saw as their best advice to Annan to hold back. These included several individuals he much admired, some of whom thought he was excessively channelling Western views and agendas. Nevertheless, he and several of his closest advisers, each marked deeply by the events in Rwanda and Bosnia, were unconvinced. Nader Mousavizadeh, then an adviser and speech-​writer in the Secretary-​General’s office and later the co-​author of Annan’s memoirs, recalling the several ‘lessons learned’ exercises the UN had engaged in following the Bosnia and Rwanda fiascos, saw Annan at the time as deeply convinced of the need to give expression to these lessons through new policy approaches, irrespective of the offence this might cause to states and colleagues cleaving to a more traditional view of the limits to intervention.5 The notion of ‘norm entrepreneurship’ was not actively on their minds at this stage, as they had no specific new norm in mind.6 There was not yet any sense of wanting to craft an all-​encompassing new intellectual framework to deal with intervention. Rather, he was searching, often through his speeches, but also by other means documented further on, for resolution of apparently irreconcilable

Kofi Annan’s Intervention Dilemma    117 principles stemming from law, notably conceptions of sovereignty and the humanitarian imperative, frequently pressed by events. In sum, Annan seemed to be moving forward, not always in a straight line, towards a new conceptual framework that would create greater flexibility at the international level to avert looming humanitarian disasters.7 Independent reports on the fall of Srebrenica and on the Rwanda genocide commissioned by Annan early in his first term, particularly frank and searing in the case of Srebrenica, were to confirm, when published in November and December 1999 respectively, that there was a great deal the UN and Member States could have done to avert both catastrophes.8 Annan was named among those sharing responsibility for the UN’s failures, something he had long internalized but that can only have reinforced his determination to struggle towards a new set of principles that could avoid the worst in the future.

Prelude to R2P Regarding the protection of civilians in armed conflict, many of the early advances at the UN can be traced to Canada’s advocacy for human security, particularly as an elected member of the Security Council in 1999 and 2000. Canada’s leadership role on the protection of civilians was consistent with its foreign policy under Foreign Minister Lloyd Axworthy from 1996 to 2000, most notably including the Anti-​Personnel Mine Ban Convention (Ottawa Treaty) of 1997, and advocacy of the International Criminal Court. On 12 February 1999, at the initiative of Canada (then the Security Council president) a Council meeting on the protection of civilians in armed conflict resulted in a presidential statement requesting a report from the Secretary-​General.9 The report, published on 8 September 1999, provided 40 recommendations to the Security Council to improve the physical and legal protection of civilians in armed conflict.10 On 17 September 1999, the Security Council adopted resolution 1265, its first resolution specifically focused on the protection of civilians, incorporating numerous of the Secretary-​General’s recommendations. Among other points, the Council expressed ‘its willingness to respond to situations of armed conflict where civilians are being targeted or humanitarian assistance to civilians is being deliberately obstructed’.11 Also at the initiative of Canada, the Council adopted resolution 1270, which included the first protection of civilians mandate for a UN peacekeeping operation (United Nations Mission in Sierra Leone).12 Meanwhile, Secretary-​General Kofi Annan published an essay in The Economist in which he juxtaposed state sovereignty with individual sovereignty.13 Annan argued that state sovereignty was being redefined by globalization and international cooperation, and that states should serve their people and not the inverse; meanwhile, individual sovereignty, as manifested in international human rights law, was also progressing through growing awareness within global civil society. The tensions between these ‘two concepts of sovereignty’ often gave rise to difficult choices, such as those presented at the time in East Timor and Kosovo, relating to armed international intervention. In the former

118    Charles Cater and David M. Malone case, the Security Council delayed authorizing intervention while waiting for consent from Indonesia; in the latter case, under threat of a veto by Russia, the NATO intervened without Security Council authorization. Failing to intervene or delaying intervention due to state sovereignty risked lives, while intervention without a Security Council mandate risked undermining the UN system and mainstream interpretations at the time of international law; in both situations, public perceptions of UN legitimacy were arguably also at stake. Annan reiterated these points in his speech to the opening of the General Assembly on 20 September 1999, concluding that the international community should welcome the ‘developing norm in favour of intervention to protect civilians from wholesale slaughter’.14 He further implied that intervention would have been justified to prevent genocide in Rwanda, even in the absence of a Security Council mandate: To those for whom the greatest threat to the future of international order is the use of force in the absence of a Security Council mandate, one might ask, not in the context of Kosovo but in the context of Rwanda, if, in those dark days and hours leading up to the genocide, a coalition of States had been prepared to act in defence of the Tutsi population, should such a coalition have stood aside and allowed the horror to unfold?15

The initial reaction to Annan’s speech was overwhelmingly negative among the Group of 77 (G77) developing countries leading him to suspend his public advocacy efforts on this topic for a time.16 Perhaps because of his earlier personal association with the tragedies in Rwanda and at Srebrenica, and in spite of (or perhaps because of) the sharp reaction to his General Assembly speech, in private Annan displayed dogged determination to square the circle on the Security Council’s role in authorizing intervention and the conviction that the UN’s first priority should be to protect civilians. Accepting that debate on these issues within UN circles had reached an impasse he requested the International Peace Academy (now the International Peace Institute), where both authors then worked, to gather a small number of individuals who might help him to think through the factors at play, and particularly to examine whether clear criteria to trigger intervention could be devised. IPA, with funding from Canada, convened several scholars, jurists, and other experts for a consultation, 8 and 9 March 2000, in New  York.17 In retrospect, the confidential report of this meeting, ‘International Intervention: Advancing Debate and Action in a UN Framework’, pointed in promising directions including on: evolution of conceptions of state sovereignty; the wide range of options and thus flexibility of the UN Charter; the Security Council’s central role in redefining parameters for future practice; and an emphasis on the human rights obligations of states to their citizenry. But it could not claim agreement on criteria for intervention (in itself an important clue to roadblocks that needed to be overcome in order to achieve subsequent breakthroughs). Noting that the term ‘humanitarian intervention’ generated allergic reaction among many UN Member States, the report suggested ‘the way forward involves changing the terms of the debate and carrying it to the public, thereby changing the environment in which decisions are made’.18

Kofi Annan’s Intervention Dilemma    119 The following month, in his report We the Peoples, published in April 2000 for the upcoming Millennium Summit, Annan returned to the ‘dilemma of intervention’. Acknowledging the controversy aroused by his speech at the opening of the General Assembly the previous year, Annan yielded little ground to critics on the issue: Humanitarian intervention is a sensitive issue, fraught with political difficulty and not susceptible to easy answers. But surely no legal principle—​not even sovereignty—​can ever shield crimes against humanity. Where such crimes occur and peaceful attempts to halt them have been exhausted, the Security Council has a moral duty to act on behalf of the international community.19

Taking up the challenge to reconcile state sovereignty with protection of the rights of the individual, at the Millennium Summit on 7 September 2000 Prime Minister Jean Chretien of Canada announced the creation of the ICISS.20 Addressing the General Assembly a week later, Foreign Minister Lloyd Axworthy cited the Brundtland Commission report’s synthesis of ‘sustainable development’ from economic development and environmental protection as a positive precedent. He stated that Canada’s goal for ICISS would be to ‘diffuse the anxiety that surrounds the issues of intervention and sovereignty by building a similar bridge between our current notions of these concepts’.21

ICISS Although ICISS was an initiative of Canada, the membership of the Commission and its staff were distinctly international. ICISS was co-​chaired by Gareth Evans, President of the International Crisis Group and a former foreign minister of Australia, and Mohamed Sahnoun, a Special Adviser to the Secretary-​General and former senior Algerian diplomat. The other ten members of ICISS were: Gisèle Côté-​Harper (Canada), Lee Hamilton (United States), Michael Ignatieff (Canada), Vladimir Lukin (Russia), Klaus Naumann (Germany), Cyril Ramaphosa (South Africa), Fidel V. Ramos (Philippines), Cornelio Sommaruga (Switzerland), Eduardo Stein Barillas (Guatemala), and Ramesh Thakur (India). Axworthy chaired the Advisory Board, and Canada was the principal funder of ICISS (in addition to several foundations and the governments of Switzerland and the United Kingdom). The work of the Commission was supported by a research team including Thomas Weiss (United States) and Stanlake Samkange (Zimbabwe) and a Secretariat within the Department of Foreign Affairs and International Trade in Ottawa. Five full meetings of the Commission were held, and a broad consultative process unfolded internationally. In December 2001, the International Development Research Centre published the ICISS report, Responsibility to Protect. The ICISS report was also launched for a UN audience by the International Peace Academy in New York in February 2002.22 Responsibility to Protect includes a synopsis usefully outlining the core principles of

120    Charles Cater and David M. Malone the responsibility to protect in four parts: basic principles, foundations, elements, and priorities.23 These asserted that sovereignty implies that the state has primary responsibility for the protection of civilians, but that the principle of non-​intervention yields to the international responsibility to protect if the state is unwilling or unable to stop serious harm to its population. The foundations of R2P were drawn from the following: inherent obligations of sovereignty; the responsibility of the Security Council under Article 24 of the UN Charter for the maintenance of international peace and security; specific obligations in international human rights law, international humanitarian law, and national law; and the practice of states, regional organizations, and the Security Council. Three stages were foreseen as relevant to R2P: the responsibility to prevent conflict, the responsibility to react with appropriate measures, and the responsibility to rebuild societies after intervention. In terms of priorities, prevention was determined to be the most important dimension of R2P. And the report asserted that less intrusive and coercive measures should always be fully considered before more intrusive and coercive measures are contemplated and implemented. The Responsibility to Protect also tackled the most controversial aspect of contemporary debate by establishing criteria for military intervention, consisting of a just cause threshold, precautionary principles, decision-​making authority, and operational principles.24 In terms of a threshold, either a ‘large scale loss of life’ or ‘large scale ethnic cleansing’ must be occurring or be ‘imminently likely to occur’. (The just cause threshold does not differentiate between the causes of the large-​scale violence. Establishing intent by the perpetrators is not required.) Four precautionary principles were outlined: the intention must be to halt or avert human suffering; military intervention could only be pursued as a last resort; the means of intervention should be proportional to the situation; and there must be ‘reasonable prospects’ for action resulting in a better outcome than not taking action. ICISS affirmed the centrality of the Security Council, suggesting that only when the Security Council fails to act could the matter be considered by the General Assembly under the ‘Uniting for Peace’ formula or by regional organizations under Chapter VIII of the UN Charter. ICISS also proposed that the P5 members of the Council should agree not to use the veto (except when ‘vital state interests’ are at play) to block authorization of military intervention for human protection in situations where there would otherwise be sufficient majority support.25 The most significant contribution of the ICISS report was to reframe the existing debate on ‘humanitarian intervention’, particularly with reference to the concepts ‘intervention’ and ‘sovereignty’. In the words of ICISS co-​chair Evans: We sought to turn the whole weary—​and increasingly ugly—​debate about “the right to intervene” on its head and recharacterize it not as an argument about the “right” of states to do anything but rather about their “responsibility”—​in this case, to protect people at grave risk.26

The ICISS commissioners sought to broaden public discourse considerably beyond a singular focus on the use of military force to include other aspects of civilian protection,

Kofi Annan’s Intervention Dilemma    121 particularly conflict prevention and post-​conflict peacebuilding. ICISS owed an intellectual debt to the earlier work on internally displaced persons (IDPs) of Francis Deng and others, who had previously formulated the concept ‘sovereignty as responsibility’ in the mid-​1990s.27 ICISS met Axworthy’s challenge of largely bridging the gap between the concepts of ‘intervention’ and ‘sovereignty’, but it took several more years before R2P gained the endorsement of UN Member States.

R2P and the UN While ultimately successful in promoting debate and prompting eventual normative development, the timing of the release of Responsibility to Protect was sub-​optimal, coming as it did months after the dramatic events of 9/​11. Furthermore, the ICISS commissioners were concerned that in the aftermath of 9/​11 public discourse could conflate the distinct issues of military intervention for civilian protection in a third state and military intervention as self-​defence in response to a terrorist attack. The fallout of the attacks on 9/​11 did complicate and delay follow-​up to the report, especially the process of building support among UN Member States for its recommendations. When the ICISS report was discussed at the annual retreat of the Security Council in May 2002, the P5 expressed concerns with the text. In particular, the United States objected to any criteria that would require it to engage militarily in situations where it lacked national interests or constrain its latitude to decide on when and where to use force.28 Less than a year later, in February and March 2003, two events transpired that would have an influence on subsequent developments: the onset of war in Darfur and the joint US–​UK invasion of Iraq without Security Council authorization. The former situation urgently illustrated the difficult challenges of operationalizing R2P, while the latter reinforced existing concerns among Member States regarding a softening of international rules governing the use of force. On 23 September 2003, largely in reaction to the intervention in Iraq, Annan announced to the General Assembly that he would form what became known as the High-​Level Panel on Threats, Challenges and Change (HLP).29 The panel was chaired by Anand Panyarachun, former Prime Minister of Thailand, and its members were drawn from every continent and each of the P5. Among the 16 members of the HLP was former ICISS co-​chair Gareth Evans and Robert Badinter, a former minister of justice of France who had previously participated in the IPA-​organized consultation in March 2000. The Secretary-​General released the HLP’s influential 130-​page report, A More Secure World, in December 2004. With respect to R2P, paragraph 203 unequivocally states: We endorse the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-​scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent.30

122    Charles Cater and David M. Malone A More Secure World also established ‘five basic criteria of legitimacy’ for Security Council authorization of the use of force: seriousness of threat, proper purpose, last resort, proportional means, and balance of consequences.31 The criteria largely mirror and somewhat complement the just cause threshold and four precautionary principles delineated in the ICISS report. In March 2005, Secretary-​General Annan released a report intended to guide discussions on UN reform among Member States in the run-​up to the World Summit in September. The report, In Larger Freedom, addressed R2P in a section titled ‘freedom to live in dignity’ (paragraphs 132 and 135) and in the Annex (paragraph 7b), providing recommendations to be considered for adoption by UN Member States. Annan delinked R2P from principles on Security Council authorization for the use of force (covered in a section on ‘freedom from fear’, paragraphs 122–​6 and Annex 6h), which helped the prospects for inclusion of R2P language in the World Summit Outcome Document. Echoing the language of the ICISS report and the HLP, Annan urged heads of state and government to: Embrace the “responsibility to protect” as a basis for collective action against genocide, ethnic cleansing and crimes against humanity, and agree to act on this responsibility, recognizing that this responsibility lies first and foremost with each individual state, whose duty it is to protect their citizens, then the responsibility shifts to the international community to use diplomatic, humanitarian and other methods to help protect civilian populations, and that if such methods appear insufficient the Security Council may out of necessity decide to take action under the Charter, including enforcement action, if so required.32

As with previous iterations of R2P, Annan’s recommendation includes a few core elements:  specifying the situations that may require collective action, clarifying that responsibility first resides with individual states, reinforcing the Security Council’s authority for decision-​making, and stating that measures other than the use of force should be attempted before enforcement action.

World Summit Negotiations As previously mentioned, the United States initially opposed R2P as defined by ICISS, but the Bush administration’s position had started to shift by 2005. In June 2005, the Task Force on the United Nations, which had been established by Congress in December 2004 to examine options for UN reform, released its report, American Interests and UN Reform. The task force, co-​chaired by former Speaker of the House Newt Gingrich and former Senate Majority Leader George Mitchell, was influential in shaping the US negotiating position prior to the World Summit. The report advocated US support for the responsibility to protect within a UN context: The United States should endorse and call on the UN Security Council and General Assembly to affirm a responsibility of every sovereign government to protect its own

Kofi Annan’s Intervention Dilemma    123 citizens and those within its borders from genocide, mass killing, and massive and sustained human rights violations.33

The task force also suggested that when the Security Council is ‘unable to take effective action in response to massive human rights abuses and/​or genocide’ regional organizations and Member States may act when it is ‘demonstrably for humanitarian purposes’.34 Ultimately, the US negotiating stance was framed around two main points:  delinking the responsibility to protect (which the United States now supported) from criteria for the use of force (which the United States still opposed as unnecessarily constraining), and maintaining the option to act outside authorization by the Security Council. The negotiating positions of the other permanent members of the Security Council could be described as divided into two camps—​France and the United Kingdom as the strongest proponents of R2P (they had come a long way since their early prudence) and China and Russia more sceptical—​although there were also key issues on which all five permanent members agreed. The most divisive point was whether or not Member States and regional organizations could intervene militarily to protect civilians in the absence of a Security Council authorization; which France, the United Kingdom, and the United States supported, but Russia and China strongly opposed. Regarding the establishment of criteria or benchmarks for military intervention, which had been proposed in the ICISS and HLP reports, all permanent members were opposed but for decidedly different reasons:  France, the United Kingdom, and the United States were opposed because they believed that criteria could limit the mobilization of political will and overly constrain the scope for action; Russia and China were opposed because they perceived that criteria might be too enabling and therefore potentially subject to abuse by powerful countries in relation to weak countries.35 China, Russia, and the United States remained strongly opposed to the ICISS report’s proposal for voluntary limits on the use of the veto for resolutions on civilian protection. Meanwhile, many developing countries still harboured concerns about state sovereignty along the lines of their reaction to Annan’s speech to the General Assembly in September 1999, but the normative ground nevertheless had shifted somewhat in the interim, not least through the ICISS and HLP processes in which the developing world was well represented. This was perhaps most significant with respect to the African Union (AU), launched on 9 July 2002 as a successor to the Organization of African Unity. The Constitutive Act of the AU includes a clause asserting: the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely:  war crimes, genocide and crimes against humanity.36

In one respect, a regional right to intervene in situations meeting a just cause threshold would seem to support the responsibility to protect as defined by ICISS. But the AU clearly reserved this right for itself rather than the UN, which seemed to indicate

124    Charles Cater and David M. Malone a limit on how much (and to whom) African states were willing to commit in ceding sovereignty. As for other groups of developing countries, many within the Non-​Aligned Movement were sceptical of the responsibility to protect, arguing that it represented a form of humanitarian intervention lacking a basis in international law, while the G77 suggested Annan’s report In Larger Freedom should be revised to emphasize territorial integrity and state sovereignty.37 Among emerging powers, South Africa (a supporter) and India (a sceptic) were prominent in debates. Proponents of R2P faced an uphill battle to build international consensus prior to the World Summit, not least because the United States and United Kingdom had resorted to humanitarian arguments in an attempt to justify their invasion of Iraq. The Canadian government, as the main state sponsor of ICISS and its report, actively lobbied at the highest levels, including in Moscow and New Delhi. Prime Minister Paul Martin, when addressing the General Assembly on 22 September 2004, concluded his discussion of the subject by emphasizing the element of constraint: ‘The responsibility to protect is not a license for intervention; it is an international guarantor of international accountability.’38 The R2P concept was modulated in three areas by Canada in order to make it more widely acceptable to Member States: first, the prospect of interventions unauthorized by the Security Council was dropped; second, the just cause threshold and precautionary principles were portrayed as limits rather than enablers for Council action; and third, in recognition of opposition among the P5, the proposal to limit the use of the veto for resolutions on civilian protection was ‘quietly dropped’.39 The compromises advanced in the advocacy strategy pursued by Canada and the ICISS commissioners were influential in pushing the debate forward. ICISS co-​chair Evans specifically credits the ‘last minute personal diplomacy’ of Martin in lobbying key undecided and opposed countries.40

World Summit Outcome On 16 September 2005, the General Assembly adopted the World Summit Outcome Document without a vote. Comprising 170 paragraphs, including content on establishing the Peacebuilding Commission (97–​105) and the Human Rights Council (157–​60), the resolution includes a three-​paragraph (138–​40) section titled, ‘Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’. Drawing upon the conceptual framework of the ICISS report, paragraph 138 specifically emphasizes the obligation of individual states to protect their populations, including through conflict prevention: Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it.41

Kofi Annan’s Intervention Dilemma    125 Notably, the scope for the application of R2P is closer to the language in Annan’s A More Secure World—​which specified ‘genocide, ethnic cleansing and crimes against humanity’—​than the broader formulations in the reports of ICISS, HLP, or the Gingrich–​ Mitchell task force. Paragraph 138 also suggests the ‘international community should, as appropriate, encourage and help states to exercise this responsibility’ and assist the UN in establishing an early warning capacity (but what constitutes ‘appropriate’ external assistance and how UN early warning was meant to function remained unspecified). Paragraph 139 concerns the responsibility of ‘the international community, through the United Nations’ to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. The core part of the text states: we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-​by-​case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.42

A few elements of this statement are worth highlighting before proceeding: first, action involving the use of force is explicitly tied to Security Council authorization; second, the Council will take action on a ‘case-​by-​case basis’, thus emphasizing the inherently political (rather than principled) nature of the body; third, enforcement action should occur only after ‘peaceful means’ have been considered and found inadequate; and fourth, there is a high threshold for international intervention (i.e. ‘national authorities manifestly fail’). Paragraph 139 also commits to state capacity-​building for civilian protection and conflict prevention. The last part of the section, paragraph 140, simply expresses support for the work of the Special Adviser of the Secretary-​General on the Prevention of Genocide. The consensus that emerged was formulated around three core propositions, the last one silent: a primary emphasis on the responsibility of the host state, a high just cause threshold for military intervention, and a rejection of voluntary limits on the use of the veto by P5 members. Two difficult issues—​criteria for the use of force and intervention without Security Council authorization—​seemed as if they might derail the negotiations. Annan, the HLP, and numerous African states favoured criteria for the use of force, while the United States, Russia, and China were opposed (although for different reasons).43 Criteria for the use of force were ultimately dropped from the draft text altogether. As for humanitarian intervention without Security Council authorization, the United States, the United Kingdom, and France advocated including this option, while Russia, China, India, and African states were strongly opposed.44 The standoff was resolved in favour of the latter as the World Summit Outcome Document explicitly references enforcement action as being ‘through the Security Council, in accordance with the Charter, including Chapter VII’.

126    Charles Cater and David M. Malone

Conclusion In reviewing the progression of thinking and action on R2P from 1999 to 2005, several points stand out. First, normative entrepreneurship, if driven forward in the right circumstances even by a middle power (perhaps particularly by a middle power), can be remarkably effective. Lloyd Axworthy championed several ideas connected with his conception of human security, including three that were particularly consequential: the anti-​personnel land-​mines treaty, the International Criminal Court, and the need to address and if possible resolve Annan’s dilemma of intervention. Second, tactics and persistence matter in normative entrepreneurship. Annan’s dodging and weaving in pursuit of a conceptual breakthrough to the dilemma he had defined, while frustrating a number of his officials, left him enough tactical leeway to advance debate and advocacy whenever an opportunity arose. His quiet determination paid off handsomely. Third, this account reveals considerable continuity among some actors involved; in short, individuals matter. Gareth Evans not only sat on both ICISS and the HLP but served as a tireless (and to some of the P5 and other opponents a very tiresome) advocate. Many others, such as Ramesh Thakur, displayed great commitment to R2P and admirable courage in advocating for it. Finally, the backing of powerful states, which itself may only come about after sustained lobbying, is ultimately a necessary component for success within a multilateral framework. In terms of UN dynamics, the influence and fluency of argument of both France and the United Kingdom, once they had come around to R2P, was vital. We advance these arguments here simply to remind readers that at the UN the odds were stacked against R2P at the outset, but that it was adopted in a comparatively short time and unanimously by Member States due to some of the factors we outlined earlier. Thus, diplomatic initiative and activism can work, cynics notwithstanding. Annan articulated the ‘dilemma of intervention’ in 1999, and thus prompted the creation of ICISS after other approaches failed to bear fruit. The inclusion of R2P less than four years after it had been initially formulated by ICISS represented a victory for Canada, the ICISS commissioners, and, above all, Annan (among other advocates). As of September 2005, had the articulation of R2P effectively solved Annan’s dilemma of how to prevent a ‘future Rwanda’ or a ‘future Kosovo’? Probably not. But did it represent progress towards this goal? Undoubtedly yes. (Its reaffirmation by the Security Council on 28 April 2006, through resolution 1674 on the protection of civilians, is a notable indicator in this regard.)45 Yet, as other chapters in this volume document, nearly a decade later R2P remains highly debated both in theory and in practice. It has proven particularly difficult to operationalize by the Security Council, perhaps raising questions regarding the clarity of the concept as articulated in the World Summit Outcome Document as well as the depth of commitment to it among the P5 members. Finally, R2P reminds us that admirable principles of international law and diplomacy do not always mutually reinforce each other. Indeed, as in constitutional law, they often

Kofi Annan’s Intervention Dilemma    127 overlap uncomfortably or clash outright, keeping courts, decision-​makers, academics, and pundits busy. But this fact in no way makes them irrelevant or redundant. Thus, we may confidently expect R2P to be both invoked and criticized frequently in the future, not least within the Security Council. As former UN Under-​Secretary-​General for Political Affairs Kieran Prendergast and others have noted, the Security Council is ultimately prone to expediency.46 Thus, each of the P5 will at some time find support for their interests in the R2P principle. This may discomfit some supporters of the concept but will not surprise others. 47

Notes 1. The paragraphs of this section are informed by many publications, but particularly by Kofi Annan with Nader Mousavizadeh, Interventions: A Life in War and Peace. Nevertheless, our text, in its construction and content, embodies the judgements of the authors. 2. Keating 2004, pp. 506–​7. 3. Annan with Mousavizadeh 2012, pp. 78–​9. 4. ; UN Press Release SG/​SM/​6949 and HR/​CN/​898, 7 April 1999; and UN Press Release SG/​SM/​6997, 18 May 1999. 5. Interview with Nader Mousavizadeh, 30 September 2014. 6. Johnstone 2007. 7. The bobbing and weaving involved in this iterative process, with Annan from speech to speech laying the emphasis on different factors, imperatives, and principles, doubtless responding to tactical judgements on what the traffic at the UN would bear at any given time, frustrated and confused some at the UN. But it was purposive. 8. A/​54/​549, 15 November 1999; and S/​1999/​1257, 16 December 1999. 9. S/​PV.3977, 12 February 1999; S/​PRST/​1999/​6, 12 February 1999. 10. S/​1999/​957, 8 September 1999. 11. S/​RES/​1265, 17 September 1999, operative paragraph 10. 12. S/​RES/​1270, 22 October 1999, operative paragraph 14. Canada’s success was, however, undermined by its failure to provide troops or other resources beyond its regular UN peacekeeping assessments in order to help implement this groundbreaking development. 13. Annan 1999. 14. A/​54/​PV.4, 20 September 1999. 15. A/​54/​PV.4, 20 September 1999. 16. Traub 2007, pp. 112–​15. 17. The co-​authors of this chapter, David M. Malone and Charles Cater, served as chair and rapporteur respectively of this meeting. 18. The report of the meeting, closely held for a time, is now merely of historical interest as a way-​station en route to R2P. It can be obtained by requesting it from [email protected] or [email protected] 19. Annan 2000, p. 48. 20. A/​55/​PV.6, 7 September 2000. 21. A/​55/​PV.15, 14 September 2000. 22. Chesterman 2002. 23. ICISS 2001, p. xi.

128    Charles Cater and David M. Malone 24. ICISS 2001, pp. xii–​xiii. 25. At the initiative of France, a similar proposal has resurfaced more recently, but it seems unlikely to gain significant support among fellow P5 members anytime soon. 26. Evans 2008, pp. 39–​40. 27. Deng et al. 1996. 28. Welsh 2004, p. 180. 29. A/​58/​PV.7, 23 September 2003. 30. United Nations 2004, p. 66. This paragraph did not slip in without contention among Panel members. Chinese concerns were sharp and some members of the Panel doubted the ‘legitimacy’ of ideas developed by a commission of the ICISS type. Nevertheless, none of the Panel members resiled publicly from the text. 31. United Nations 2004, p. 67. 32. A/​59/​2005, 21 March 2005, Annex 7(b). 33. Task Force on the United Nations 2005, p. 29. 34. Task Force on the United Nations 2005, p. 31. 35. Welsh 2004, p. 204 n. 4. 36. The Constitutive Act of the African Union, paragraph 4(h). 37. Bellamy 2006, p. 152. 38. A/​59/​PV.5, 22 September 2004. 39. Bellamy 2006, p. 155. 40. Evans 2008, p. 50. 41. A/​60/​L.1, 15 September 2005, para. 138. 42. A/​60/​L.1, 15 September 2005, para. 139. 43. Bellamy 2006, p. 164. 44. Bellamy 2006, p. 167. 45. S/​RES/​1674, 28 April 2006, operative para. 4. 46. Malone 2006, p. 285. 47. The authors are very grateful to Edward Mortimer, Nader Mousavizadeh, and Kieran Prendergast for sharing with us their recollections and perceptions of developments outlined in the first section of this chapter. We would also like to thank Sebastian von Einsiedel and Paul Romita for their helpful comments on earlier drafts of the chapter.

References Annan, Kofi (1999). ‘Two Concepts of Sovereignty’, The Economist, 16 September. Annan, Kofi (2000). We the Peoples:  The Role of the United Nations in the 21st Century (New York: United Nations). Annan, Kofi with Nader Mousavizadeh (2012). Interventions:  A  Life in War and Peace (New York: Penguin). Bellamy, Alex J. (2006). ‘Whither the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit’, Ethics and International Affairs 20(2): 143–​69. Chesterman, Simon (2002). ‘Responsibility to Protect’ Discussed at New York Seminar (New York: International Peace Academy). Deng, Francis M., Sadikiel Kimaro, Terrence Lyons, Donald Rothchild, and I. William Zartman (1996). Sovereignty as Responsibility: Conflict Management in Africa (Washington, DC: Brookings Institution).

Kofi Annan’s Intervention Dilemma    129 Evans, Gareth (2008). The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Washington, DC: Brookings Institution). International Commission on Intervention and State Sovereignty (ICISS) (2001). Responsibility to Protect:  Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre). Johnstone, Ian (2007). ‘The Secretary-​General as Norm Entrepreneur’, in Simon Chesterman (ed.), Secretary or General? The UN Secretary-​ General in World Politics (Cambridge: Cambridge University Press), pp. 123–​38. Keating, Colin (2004). ‘Rwanda:  An Insider’s Account’, in David M.  Malone (ed.), The UN Security Council: From the Cold War to the 21st Century (Boulder, CO and London: Lynne Rienner), pp. 500–​11. Malone, David M. (2006). The International Struggle Over Iraq:  Politics in the UN Security Council, 1980–​2005 (Oxford: Oxford University Press). Task Force on the United Nations (2005). American Interests and UN Reform: Report of the Task Force on UN Reform (Washington, DC: United States Institute of Peace). Traub, James (2007). The Best Intentions: Kofi Annan and the UN in the Era of American World Power (New York: Picador, 2007). United Nations (2004). A More Secure World: Our Shared Responsibility. Report of the Secretary-​ General’s High-​Level Panel on Threats, Challenges, and Change (New York: United Nations). Welsh, Jennifer M. (2004). ‘Conclusion:  Humanitarian Intervention after 11 September’, in Jennifer M. Welsh (ed.), Humanitarian Intervention and International Relations (Oxford: Oxford University Press), pp. 176–​83.

UN Documents S/​PRST/​1999/​6, 12 February 1999. S/​PV.3977, 12 February 1999. S/​1999/​957, 8 September 1999. S/​RES/​1265, 17 September 1999. A/​54/​PV.4, 20 September 1999. S/​RES/​1270, 22 October 1999. A/​54/​549, 15 November 1999. S/​1999/​1257, 16 December 1999. A/​55/​PV.6, 7 September 2000. A/​55/​PV.15, 14 September 2000. A/​58/​PV.7, 23 September 2003. A/​59/​PV.5, 22 September 2004. A/​59/​2005, 21 March 2005. A/​60/​L.1, 15 September 2005. S/​RES/​1674, 28 April 2006.

Pa rt  I I I

T H E ORY

Chapter 8

R 2 P’s Status as  a  Norm Melissa Labonte

Vexing questions flow from even the most ardent and well-​meaning attempts to tackle ‘wicked problems’1 in international politics. The responsibility to protect (R2P) is no exception. Indeed, wrapping one’s analytical arms around a concept as profound and impactful as R2P immediately poses a set of further challenges which at first glance may appear academic—​but upon closer examination, are anything but. With each new avenue of inquiry surrounding R2P we may choose to explore, the more beset with ambiguity we find ourselves. But whereas ivory tower inhabitants can afford to be wrong when their hypotheses designed to resolve global problems are refuted or fail, policy architects charged with tackling ‘wicked problems’ can ill-​afford such outcomes. Why? The reason is simple. Civilians deserve to be protected from mass atrocities perpetrated by state and/​or non-​ state actors. This is an accepted international legal obligation, duty, and norm.2 Indeed, countless human lives depend on the international community delivering on its protection promises, which date back at least to the Nuremberg trials. As such, the world’s ‘R2P doers’ are duty-​bearers responsible for the consequences their actions generate, which always ‘matter a great deal to those people that are touched by those actions’.3 Likewise, and as former UN High Commissioner for Refugees, Sadako Ogata, so aptly commented, gauging R2P and its status as a norm centre on answering a rather important first-​order question: ‘[w]‌hat does all this language actually mean for suffering people on the ground?’4 In plain terms, R2P is constituted by a set of principles and norms adopted by heads of state at the UN General Assembly’s 2005 World Summit to help resolve a ‘wicked problem’ in international politics: the perpetration of mass atrocity crimes against civilians. Originally applied to situations in which ‘major harm to civilians is occurring or imminently apprehended’,5 the scope of behaviour justifying collective response on the part of the international community of states was narrowed to a state’s manifest failure to protect its population from four crimes representing the most conscience-​shocking behaviour to which humankind has borne witness:  genocide, war crimes, crimes against humanity, and ethnic cleansing. R2P has benefited from this specification, as

134   Melissa Labonte without it, it is doubtful that it would have received such a ringing endorsement by UN Member States. Ten years have passed since R2P’s formal adoption.6 Yet the normative journey that R2P has taken neither begins nor ends with this point in time. A good deal of the normative fibre that forms the core of R2P predates its incorporation into the World Summit Outcome Document. And, its normative elements continue to be in flux today, reflecting the ever-​changing landscape of mass atrocity response. The shifting nature of the ‘wicked problems’ that R2P was formulated to address requires us to examine closely R2P’s normative elements. As we unearth its constituent layers to help answer the questions ‘what is R2P’s status as a norm’ and ‘how new is it?’, which are critical to our political, legal, and social understandings of R2P, two related trends emerge. First, any certainty we attribute to R2P writ small as a functional and composite set of norms that deliver on the international community’s protection promise must be tempered against the glacial and non-​linear nature of norm-​building writ large. Second, the difficulty in consolidating support for the more novel components of the norm are derivative of the contemporary shortcomings that characterize the very institutions tasked with realizing R2P in theory and practice. These trends and their implications are explored in what follows, but first it is important to chart answers to the question of what R2P’s status is as a norm, and its newness.

What is R2P’s Status as a Norm? Answering the question ‘what is R2P’s status as a norm?’ requires us to demonstrate that it is, in fact, a norm. Thankfully this is a rather straightforward task. Norms are shared understandings of standards of appropriate behaviour reflecting legitimate social purpose for actors with a given identity—​they are, as many scholars argue, social facts.7 Just as shared ideas and knowledge are important building blocks of international reality,8 norms have the potential to create permissive conditions for action and outcomes, but are rarely determining in and of themselves. While the most settled aspect about R2P is that it is a norm, scholars and practitioners have yet to reach consensus regarding what ‘type’ of norm R2P represents, as well as the specific ideas, principles, and understandings that undergird it. There is no consensus, for example, as to whether R2P is a single norm, or a collection of different norms. Some treat it in the singular,9 while many widely-​read works affirm R2P’s normative pluralism while classifying it as an ‘accepted norm’,10 a ‘new norm’,11 or a ‘new international norm’.12 Even when R2P is treated as a collection of norms, however, there is little agreement on their nature. Some, for example, emphasize R2P norms as professional (e.g. legal),13 or social or practical.14 Still others discuss R2P and its constituent norms in terms of ‘norm advancement’ or ‘normative trajectory’ or ‘norm consolidation’.15 And, some refer to R2P as the outcome of ‘positive normative developments’16 or ‘normative shifts’;17

R2P’s Status as a Norm    135 while others acknowledge R2P is not a single norm, but rather a ‘collection of shared expectations that have different qualities’.18 Most wrestle with just what, exactly, R2P ‘is’ and acknowledge the challenges of analysing its normative properties. Luck, for example, initially classifies R2P as a political concept, ‘albeit one based on well-​established legal principles and norms’.19 He surmises further that R2P has become a standard for proper behaviour and expectations among state and non-​state actors much faster comparatively than the ‘human rights, humanitarian, and refugee norms on which it is based’.20 But ultimately, he refers back to it as a ‘contested norm’.21 Bellamy categorizes R2P as falling somewhere between a concept and a principle, noting that the ‘language of norms brings with it a host of concepts, distinctions and methods which are not easily tacked onto the language of concepts and principles’.22 Serrano claims R2P is still an ‘emerging’ norm,23 while Kuperman characterizes it as a ‘fading norm’.24 Despite these nuances in R2P scholarship and commentary, nowhere in the literature is the argument made that R2P is not a norm. Having dispensed with this formality, it is sensible to ask why the norms that constitute R2P matter—​and how they matter. Max Weber’s insight that norms (and the ideas that undergird them) have profound effects on the course of all political events, and serve like ‘switchmen’ directing interest-​based action down one track or another,25 is highly relevant in relation to R2P. Its constituent ideas are thus important building blocks of international reality and practice. In the years that have passed since ICISS issued its 2001 final report and the adoption of the World Summit Outcome in 2005, assessing the value and status of R2P norms is an exercise fraught with difficulty—​precisely because norms are highly context-​specific, do not exist in a vacuum, and are constantly in flux. Indeed, it is almost a truism to say that norms inhabit a highly competitive landscape with other norms. For some, R2P’s value derives from its promise as a policy tool to halt or prevent mass atrocity crimes.26 For others, its value flows from the nature of norm diffusion that has resulted from its maturation as either an emerging doctrine, whereby R2P should prevent, deter, or halt mass atrocities; or as a robust rule guiding the behaviour of the international community of states.27 Alongside these finer points, a good deal of the literature ascribes anthropomorphic qualities to R2P norms—​and considers them as inhabiting a distinctive and relatively (but not decidedly) teleological ‘life cycle’. Despite its limitations, this approach provides a useful starting point from which to consider the nature and dynamism of norms, and to locate specific norms along a continuum vis-​à-​vis other norms. As part of their life cycle, norms emerge, tip, cascade, and are internalized. We know new norms emerge in at least two ways. First, current norms can become obsolete when they no longer serve as an effective paradigm to solve new problems or crises. In this case, policy-​makers search for new normative paradigms to help them envision new policy solutions—​especially when presented with evidence that the new normative practices will work.28 Second, new norms emerge as a result of system changing events—​whereby political space is created allowing emergent norms to challenge existing ones.29 In this scenario, a new normative paradigm offers an appealing and

136   Melissa Labonte alternative vision for the future, creates solidarity, helps build political coalitions, or allows for blame of the old paradigm.30 In the case of R2P, both of these conditions were present. The ideas former UN Secretary-​General Kofi Annan invoked when he threw down the diplomatic gauntlet following the mass atrocities perpetrated in Rwanda and Srebrenica, resonated strongly with a core group of states who then went on to consolidate (and create anew) the norms we now associate with (or as) R2P. Indeed, Annan charged any state or group of states to ‘forge unity behind the principle that massive and systematic violations of human rights, wherever they may take place, should not be allowed to stand’.31 This wasn’t rhetorical flourish. Annan expected that national authorities could and would alter their attitudes and behaviours in relation to seemingly sacrosanct norms (e.g. sovereignty and non-​interference) when national authorities attempted to hide behind them in part in order to perpetrate mass violations of other significant norms—​human rights and humanitarian norms. For Annan, the mass atrocity crimes that characterized Rwanda and Srebrenica had turned the norm hierarchy completely on its head and, if left to stand, would only facilitate future human misery and suffering—​as well as sustain cultures of impunity. Following on from emergence, a norm enters the ‘tipping’ phase of its life cycle when some critical mass of actors in a given system (one-​third of states) and/​or when systemically influential states (those with high levels of material power or moral legitimacy) adopt it.32 By all accounts, the human rights and humanitarian norms that constitute R2P—​as linked to state’s primary responsibility to protect, have, indeed, ‘tipped’. Nearly all states are contracting parties to the Genocide Convention, signatories to all four of the 1949 Geneva Conventions, and endorse the Universal Declaration of Human Rights. Hundreds of states have ratified the International Covenant on Civil and Political Rights, and 123 nations are States Parties to the Rome Statute of the International Criminal Court. In the lead-​up to the 2005 World Summit, UN Member States endorsed key preparatory reports characterizing R2P as an emerging, collective norm that should be embraced and acted upon.33 And, it is commonplace for actors charged with maintaining international peace and security, foremost among them the UN Security Council, to attempt to hold national authorities to account in ensuring this primary, enduring responsibility through the authorization of condemnations, sanctions, and in some cases, forcible interventions. That said, with regard to the norms concerning the international community’s secondary responsibility to engage states which manifestly fail in upholding their primary responsibility, either through prevention, diplomacy, or use of force (timely and decisive action), no such ‘tipping’ moment has occurred. This is discussed further in what follows. Once a norm has tipped, we look for effects that tell us it is poised to ‘cascade’. As part of this process, actors must institutionalize the norm, either in their rules, foreign policies, international treaties, and/​or conventions. This institutionalization establishes the parameters for actor behaviour in relation to the norm (particularly by indicating when

R2P’s Status as a Norm    137 norm violations are occurring), including any counter-​measures or sanctions resulting from norm-​violating behaviour.34 R2P norms do show some signs of cascading. The Security Council has authorized numerous resolutions based on R2P, civilian protection norms have formed part of the core mandate of all UN peacekeeping missions for well over the past decade, and R2P’s provisions are at the core of Article 4 of the African Union’s Constitutive Act.35 Finally, ‘internalization’ represents the ultimate phase of the norm life cycle. Here, norms are no longer the subject of debate—​they become settled, taken-​for-​granted, and actor behaviour and policy preferences are largely aligned with them. On this measure, it would be difficult to make the claim that R2P is an internalized norm—​the intense and ongoing debates surrounding it suggest that R2P remains a contested set of norms. It is important to note that no matter the exact process through which norms emerge, they always need help from other actors if they are to have any impact on global actor attitudes and behaviours. Recall, norms are rarely if ever the sole causal factor in determining actor behaviour. Thus, something or someone must help ‘carry’ them into policy and social arenas, and nurture them through the life cycle. Enter the norm entrepreneurs. Think Bernard Kouchner and the concept of humanitarian intervention; Nelson Mandela and the anti-​apartheid movement; Malala Yousafzai and the global campaign for equal access to education for girls. These actors attempt to generate persuasive connections with policy elites by strategically framing norms to suggest appropriate practices that reinforce those ideas. Effective norm entrepreneurs spotlight and create issues, interpret and dramatize information, and engage in cognitive framing that ideally will resonate with other policy elites. Where norm entrepreneurs successfully introduce new norms into a policy environment, norm contests inevitably result, although the results are never predetermined and difficult to disentangle from the power politics that pervade these forums. In the case of R2P, norm entrepreneurs such as Gareth Evans, Ramesh Thakur, Ban Ki-​moon, Edward Luck, Bernard Kouchner, Francis Deng, Roberta Cohen, Kofi Annan, Tony Blair, and Navi Pillay have had a profound effect in raising the profile and status of the norm. In contradistinction, other actors—​actors colloquially labelled as norm ‘antipreneurs’ have endeavoured to minimize and taint R2P as a reckless and dangerous norm. Hugo Chavez and Noam Chomsky come to mind in this regard. Regardless of which ‘preneur’ one encounters, the fact that R2P has such ardent friends and foes points to the fact that it constitutes a significant yet non-​internalized set of norms that are, indeed, reshaping contemporary global politics. Finally, in discerning R2P’s status and value as a norm, we are aided by being able to functionally disaggregate the properties that norms in general can be said to exhibit.36 Through this process, it is possible to proffer some admittedly guarded conclusions on the nature of the component norms subsumed under the broader R2P label, and to develop a more fine-​grained understanding of R2P’s policy relevance, potential, and limitations. Because R2P’s component norms set standards for behaviour based on perceptions of appropriateness which, in turn, help shape and inform interests, identities, and

138   Melissa Labonte practices, we can consider R2P norms to possess constitutive or prescriptive properties.37 State supporters and opponents of R2P invoke R2P norms when and where it advances their interests. As noted above, it has become commonplace for national authorities to engage in ‘R2P-​speak’—​and to rely upon a specific lexicon for infusing public statements and pronouncements with the principles and ideas that form the core of R2P.38 Indeed, the R2P moniker now forms part of the global vernacular to describe cases that in the past were given the highly ambiguous label of ‘gross violations of human rights’. Calling a situation an R2P case gets people’s attention—​it certainly turns heads at UN headquarters and in the global press. In a similar vein, individual UN Member States routinely draw upon R2P norms to justify support for specific actions, particularly within the UN Security Council. Russian authorities invoked R2P norms in justifying that nation’s 2008 military intervention into neighbouring Georgia. Earlier that same year, French foreign minister Bernard Kouchner formulated his appeals for intervention in Myanmar following Cyclone Nargis by referring to R2P norms. And, in a 2009 Security Council debate over Israel’s intervention in Gaza, the then Libyan permanent representative to the UN justified his call for Council action in that case by drawing directly on R2P norms.39 The irony, of course, was that two years later the Security Council relied heavily on R2P norms to authorize a no-​fly zone over Libya in response to the Gadhafi regime’s manifest failure to protect its civilians from mass atrocities. It is likely to be quite some time before Libyan authorities again use R2P norms in UN circles. It is possible to argue that R2P norms exhibit regulative properties which, when realized, constrain and order actor practices.40 In contrast to the evolution of its evaluative properties, the evidence clearly shows that states still perceive R2P’s regulative properties as being highly relative and fluid in both synchronic and cultural terms. In other words, R2P comprises norms that may shape and reshape how national authorities think and act, but how national authorities think and act can also weaken or strengthen R2P’s regulative, evaluative, and constitutive properties. Like all relationships, the state–​R2P dynamic is bounded by mutually constitutive properties. For example, it was not until the mid-​twentieth century that national authorities began entertaining seriously the notion that human rights no longer sat squarely within the realm of a state’s domestic jurisdiction. This idea is still not without opposition—​ and many states prefer adhering to other well-​established norms such as sovereignty and non-​interference to guide their behaviour (or at least when it suits them). In addition, many countries, including China, Cuba, India, Iran, Nicaragua, Pakistan, Russia, Syria, Sudan, and Venezuela contest the alleged universalism of R2P norms to constrain or order state practice. Considering them almost entirely culturally relative (a product of Western, liberal ideology) and thus anything but universal, R2P naysayers deny that its norms have a legitimate role to play in shaping their domestic or foreign policies. Of course this is an easier position for some states than others to perpetuate. The Permanent Five (P5) members of the Security Council, for example, always have the luxury of vetoing proposals for R2P-​based action in their respective spheres of influence in relation to mass atrocity cases.

R2P’s Status as a Norm    139 Here R2P norms still (and always will until the Council undergoes radical reform) compete directly with other norms that are constitutive to the Security Council, its identity, interests, and practices. Only when the P5 muster the political will to agree to use R2P can it be said to have regulative effects—​and even then, such effects are likely to be evident only on a case-​by-​case basis. For example, R2P supporters thus have a tough row to hoe in arguing that R2P norms had significant regulative effect in the 2009 case of Sri Lanka, where the Security Council held not a single formal meeting during the final months of that nation’s civil war, despite the overwhelming evidence that mass atrocities were being perpetrated against hundreds of thousands of civilians by national authorities and insurgents alike. In contrast, R2P supporters would be on solid ground to argue that its regulative powers were evident in the 2011 case of resolution 1973, which authorized a no-​fly zone over Libya in response to the Gadhafi regime’s threats to perpetrate mass atrocities against civilian protesters. As a result of its conditional and relative regulative properties, states can (and do) actively impede the institutional consolidation of R2P norms within intergovernmental and regional forums, and have expressed openly their concerns that R2P norms are ripe for misuse, particularly by the powerful against the weak. Thus, some states consider R2P norms to be a dubious legitimator of behaviour which, in their view violate otherwise legitimate norms of sovereignty and non-​interference—​themselves foundational to the United Nations Charter. Indeed, the pointed and widespread criticism of the George W. Bush administration’s attempts to justify unilateral military intervention in Iraq partly on the basis of R2P norms reflects this. This points up another difficulty in discerning R2P’s status as a norm. For a norm to truly be constitutive and regulative, surely we would expect it to be applied with some consistency. And yet, as we have seen time and again over the past decade, state actors apply R2P norms selectively, inconsistently, and sometimes not at all in cases that would, all else being equal, warrant a response that reflects a good faith effort to fulfil both individual and collective responsibilities to protect. One need only examine the considerable variation in the international community’s response to preventing and halting mass atrocities that have occurred/​are ongoing in places like Côte d’Ivoire, Darfur/​Sudan, Democratic Republic of Congo, Kenya, Libya, Sri Lanka, South Sudan, and Syria to be convinced of this point. Incremental changes in how states conceptually understand R2P norms as a guidepost for domestic policy can also tell us a lot about R2P’s status as a constitutive norm. Such decisions are predicated largely on national authorities’ perceptions of the relationship between human rights and humanitarian norms, and norms associated with sovereignty and non-​intervention. This is not new. However, it is helpful to examine strategic policy processes and the observable implications of R2P norms where they occur within those processes to build our knowledge about whether and to what degree the human rights and humanitarian norms associated with R2P—​its evaluative and regulative norms—​may facilitate ‘the right kind of political will’41 to respond effectively to mass atrocity crimes either preventively or reactively.

140   Melissa Labonte

The United States and R2P Norm Development Close review of the evolution of US National Security Strategy (NSS) from 1995 to 2010 illustrates the increasingly blurry lines that separate national from global interests and the legitimating and constitutive effect of R2P norms, in helping define official US policy concerning mass atrocity response that may require consideration of the use of force. While coercive force is but one of several options available to states (or the international community acting through the UN) in R2P cases, it is among the least likely responses, which renders it all the more important to trace in determining the value of R2P norms to powerful states. It not only sheds light on how norms undergo localization processes, but also helps us chart a norm’s status through implementation.42 For decades, the US government took the strategic position that the dispatch of armed forces be predicated on national interests and values being sufficiently at stake, but did not assign positive obligations based on human rights or humanitarian norms that we know today constitute R2P.43 The 1995 NSS, for example, emphasized that states should expect their international borders and state sovereignty to be sacrosanct, but that gross violations of human rights occurring within a state’s borders may prompt US response—​either through diplomacy or, when required, through use of force—​when America’s national security interests are threatened. Within three years, however, and a great deal of soul searching following the Rwandan genocide, the United States had broadened its national interests to include ‘humanitarian’ interests alongside ‘vital’ and ‘important’ interests. Under the 1998 NSS, humanitarian interests included those that would facilitate preventive diplomacy and humanitarian assistance where US values demanded it. Examples included responding to natural and man-​made disasters or violations of human rights, supporting democratization and civil control of the military, assisting humanitarian demining, and promoting sustainable development.44 The list of what qualified as a ‘humanitarian interest’ was further expanded in 1999 to include, for the first time in that nation’s history, the promotion of human rights and seeking to halt gross violations of those rights. However, decisions to commit US military forces in support of securing humanitarian interests remained conditioned on the ‘unique capabilities and resources’ such action could offer, ‘rather than on [US] combat power’.45 That said, in cases where US response to states perpetrating mass atrocities against their populations was deemed necessary (categorized as a threat to US interests), effective response may necessitate acting multilaterally and on a case-​ by-​case basis, but always weighed against the interests at stake and the capacity to act effectively.46 Evidencing further the constitutive and even perhaps the regulatory status of R2P norms, the 2010 NSS stipulated that ‘[m]‌ilitary force, at times, may be necessary to defend our country and allies or to preserve broader peace and security, including by protecting civilians facing a grave humanitarian crisis’.47 Perhaps most importantly and in elaborating key global challenges where multilateral cooperation will be necessary,

R2P’s Status as a Norm    141 the 2010 NSS for the first time featured a sub-​section on preventing genocide and mass atrocities that affirmed positive support for R2P. It stated: The United States and all member states of the U.N. have endorsed the concept of the “Responsibility to Protect.” In so doing, we have recognized that the primary responsibility for preventing genocide and mass atrocity rests with sovereign governments, but that this responsibility passes to the broader international community when sovereign governments themselves commit genocide or mass atrocities, or when they prove unable or unwilling to take necessary action to prevent or respond to such crimes inside their borders. The United States is committed to working with our allies, and to strengthening our own internal capabilities, in order to ensure that the United States and the international community are proactively engaged in a strategic effort to prevent mass atrocities and genocide. In the event that prevention fails, the United States will work both multilaterally and bilaterally to mobilize diplomatic, humanitarian, financial, and—​in certain instances—​military means to prevent and respond to genocide and mass atrocities.48

Given the considerable US support for Security Council resolutions 1973 (Libya) and 1975 (Côte d’Ivoire) in 2011, it is clear that the NSS has moved closer in alignment with R2P norms. These shifts were due in part to a global-​level fusion of humanitarianism and human rights as both a ‘utopian idea and a practical movement’,49 and in part to efforts undertaken by national-​level processes facilitated by projects like the Genocide Prevention Task Force, which issued its final report in 2008 and outlined a series of recommendations concerning early warning, prevention, and employing military options in the face of genocide.50 Indeed, shortly after the Libya and Côte d’Ivoire resolutions, President Obama in August 2011 issued Presidential Studies Directive-​10 (PSD-​10), which directed a comprehensive review of US capability to prevent mass atrocities.51 It created a standing interagency Atrocities Prevention Board to ensure that prevention strategies are sufficiently developed to deal effectively with mass atrocity challenges, and to channel actionable information to senior policy-​makers working multilaterally in crafting responses involving a wide range of policy tools, including the use of force. Vitally, the US government in 2011 elevated the prevention of mass atrocities and genocide to a ‘core national security interest and a core moral responsibility’ suggesting the diffusion effect is ongoing.52 This is clear evidence that R2P norms do have constitutive, and possibly regulative, effects. In part this stems from the fact that R2P norms do not exist in a vacuum—​and because, as Thomas Risse-​Kappen has memorably noted, ‘ideas do not float freely’.53 Thus, R2P writ large is still very much a ‘youthful’ and emerging normative doctrine subject to contestation as it transitions to adolescence and adulthood (and presumably, its ‘golden’ years). But it is exhibiting influence on both global dialogue, national policy, and in some cases, international responses to mass atrocity cases. At this juncture in its life cycle, however, the evidence of R2P’s effectiveness as a policy instrument illustrates the fact that its normative power, capacity to transform state

142   Melissa Labonte behaviour, and compliance pull remain quite uneven, even as it appears to be in the process of cascading into global policy processes and institutions, and influences national strategic policy-​making. By examining the question of ‘newness’, we are also able to shed additional light on R2P’s status as a norm.

How New is R2P? In similar fashion to our assessment of R2P’s normative status, we cannot answer the question ‘how new is R2P?’ without disaggregating its component parts and assessing ‘newness’ on that basis rather than treating the entire set of principles as a monolithic whole. It is helpful to recall that among ICISS’s aims vis-​à-​vis R2P were to reframe and refocus the ‘power of new ideas, or old ideas newly expressed, to actually change the behavior of key policy actors’.54 While R2P has recast the debate over humanitarian intervention and response to mass atrocity crimes in a number of important ways, including reassigning legitimate responsibility and action for civilian protection beyond the host state, it cannot be said to have strong regulative effects at the global level. When viewed as the sum of its parts, R2P should exert considerable influence over actor behaviour. Yet the empirical evidence suggests it does not. Two factors account for this. First, when paragraphs 138 and 139 of the World Summit Outcome Document are considered separately, it is clear that the former paragraph, which articulates a state’s primary responsibility to protect, can be understood as being a reflection of established and universally accepted past practice under international law. Its constitutive effects are thus linked to appeals to world culture, including universalism, individualism, voluntaristic authority, rational progress, and world citizenship.55 By contrast, however, the norms articulated in paragraph 139, which outline the international community’s secondary responsibilities, are quite new. Thus its regulative effects remain ambiguous—​ even while its constitutive effects appear to be clear. Second, appeals to collective action taken to ensure human dignity and moral progress should, in theory, resonate and persuade policy-​makers to act in a timely and decisive manner. Because R2P norms deal squarely with behaviour that involves bodily integrity and prevention of bodily harm for vulnerable groups, resonance levels among policy actors should be stronger than other norms in shaping behaviour and outcomes. But they aren’t—​because the most significant impediments to realizing R2P are only partially linked to which norms (e.g. sovereignty or human rights) triumph in policy debates concerning mass atrocity response. Sovereignty and non-​interference have never been the predominant obstacles to saving strangers (whether through forcible or non-​forcible measures)—​political will has. Without this critical intervening variable, the regulative effects of R2P will only be able to create necessary rather than sufficient conditions to compel action or create a compliance pull on political actors. This is further reflected in the fact that Member States’ support for R2P principles has remained relatively robust, whereas support for the modalities to implement R2P has,

R2P’s Status as a Norm    143 perhaps unsurprisingly, remained tentative and mixed at best. R2P is not legally binding, does not create unconditional or perfect duties, and is the child of political compromise. In cases where it has been invoked to good effect (e.g. Central African Republic, Côte d’Ivoire, Kenya, and Libya—​at least initially), it boasted a thousand fathers. Where it has failed to be invoked or has been misused to justify a response (e.g. Georgia/​South Ossetia, Iraq, Myanmar, Sri Lanka, Syria) it was rendered an orphan. Similarly, well before R2P’s birth and several times since, states have used human rights and humanitarian norms instrumentally to justify using force against other states. Repackaging the language of humanitarian intervention under the R2P framework has not changed the underlying political dynamics that condition where and when states will intervene for civilian protection purposes. Ultimately R2P’s ability to shape the international community’s collective behaviour will be most closely linked to perceptions Member States hold concerning its utility as a policy instrument. Strategic considerations surrounding R2P are likely to ‘trump humanitarian concerns for the foreseeable future’ when states formulate policy responses to mass atrocity cases.56 This leaves open the door to further debate concerning whether and under what conditions states can ever be persuaded by R2P norms to act in a manner that reinforces more broadly-​defined global interests over narrowly-​defined national interests. To be clear, states have never needed anything resembling R2P to accept (when it has suited their interests) that the perpetration of mass atrocities calls for international action, including the possibility of use of force. If R2P really represents a new normative conveyor belt for consolidating an idealized resolve on the part of the international community to counter mass atrocities, considerable work remains to ascertain under what conditions it is likely to generate political will to respond effectively to mass atrocities. As a corrective, if we reconsider the source of norm derivation and the nature of the knowledge that is used to formulate and interpret norms, we may be able to craft more compelling explanations of behaviour that is incongruous with norms that by all accounts should exhibit strong regulative effects. In addition to possessing constitutive and regulative properties, norms can be said to flow from professional (official) and social knowledge—​thus they help constitute professional and social norms.57 Professional norms are highly precise in definition and explication. They represent knowledge that is formalized and codified ‘officially’ in laws, regulations, and procedures, terms and conditions, and institutions. R2P’s codification in the World Summit Outcome Document is an example of this. Likewise, the norms associated with mass atrocity crimes that characterize R2P cases (and which are firmly embedded and codified under international human rights and humanitarian law, as well as in the Rome Statute) can also be said to be professional in nature. R2P can also be said to derive in part from social norms,58 which are generally understood as values and beliefs held and reaffirmed by a social group regarding the behaviour of its members. These norms have a conditional dimension, as compliance with them can be implemented formally or informally, and they are often known to members of the group through verbal discourse. Where members of a group depend on the group for some aspect of its survival, for example, the compliance effects of social norms can

144   Melissa Labonte be highly effective. Thus, R2P is partly derivative of a social norm in that a sizeable group of states has articulated support for the doctrine and many individual states model their behaviour in alignment with certain expectations of the norm, namely that it is not appropriate to commit mass atrocities or allow such crimes to be perpetrated against civilian populations. However, analysing R2P’s compliance pull by focusing mainly on its professional and social normative characteristics may be missing the point, precisely because these norm-​types presume that knowledge is always socially constructed, verbally known, and codified. Using the concept of ‘practical rationality’ as an anchor point, it is possible to argue that some forms of knowledge that constitute norms (and subsequently, behaviour) are constituted through other types of knowledge that function in the realm of ‘practical consciousness’ rather than a verbalized or discursive realm.59 Herein lies the idea of the ‘practical norm’. Practical norms ‘use informal rules of the game that vary according to context’—​and which exude little if any resemblance or relation to shared rules of understanding or universal values—​but they are nonetheless effective in achieving a particular set of objectives.60 Practical norms are automatic and routine—​they form part of a ‘habitus’ that is not discernible directly. Thus, behaviour that aligns with practical norms may still be prevalent among state and non-​state actors—​even though such behaviour can and often does violate other coterminous dominant professional or social norms. In a similar manner, the source of anti-​R2P sentiment and behaviour concerning its implementation may well be situated squarely within this broader understanding of the types of knowledge that constitute norms. Indeed, the implementation process, initiated in 2009 by UN Secretary-​General Ban Ki-​moon, has year in and year out resulted in very little by way of definitive and concrete results.61 Some have speculated that R2P has not been able to escape the allegation that it is a Trojan horse designed to empower the strong to justify use of force against the weak.62 For others, the backpedalling away from R2P norms is the result of conflation and entanglement with other global ‘responsibilities’ (e.g. prosecution, palliation) that have had disproportionate effects across regions, prompting national authorities to seriously question the legitimacy of institutions that support and embody R2P norms, such as the International Criminal Court.63 For these otherwise reticent actors, R2P norms should focus more on standards of appropriate behaviour informed by principles of prevention than reaction. And it was exactly this sentiment that was expressed by R2P opponents following the UN General Assembly’s 2012 interactive thematic dialogue concerning the third pillar of the Secretary-​General’s proposed implementation strategy for R2P—​timely and decisive response.64 Certainly few would doubt that the emphasis on prevention and capacity-​building is needed. The UN’s own institutional capacities in this area could stand to be improved and it is sensible to consider improving existing mechanisms rather than creating new ones.65 However, it would be more honest to admit that the over-​emphasis on prevention is a political expedient, not a normative necessity. It also harbours assumptions about the kinds of knowledge that operate in norm formulation. Moreover, R2P’s shift in focus to prevention and capacity-​building, early warning, and international

R2P’s Status as a Norm    145 assistance may well obscure rather than strengthen the regulative effect of R2P, and dilute its very specialized and cornerstone social and professional norms (transgressions constituting any of the four crimes that constitute R2P). Capacity-​building (and its close cousins, international development and peacebuilding), in particular, embrace social and professional norms that, while linked to R2P norms, are far wider in their nature and scope—​but that do not always exude strong compliance pulls among state and non-​state actors. And, they presuppose and reify some forms of knowledge over others. Such an approach also effectively removes mass atrocity crimes from their proper political context and presumes they can be dealt with by addressing failures of economic development and human security broadly defined. Finally, it exacerbates the assumption that norms of prevention and response are mutually exclusive. As the Carnegie Commission on Preventing Deadly Conflict long ago demonstrated, they are not.66

Conclusion The ICISS report sums up the conundrums facing R2P as it moves through its normative journey in contemporary international politics: If we believe that all human beings are equally entitled to be protected from acts that shock the conscience of us all, then we must match rhetoric with reality, principle with practice. We cannot be content with reports and declarations. We must be prepared to act. We won’t be able to live with ourselves if we do not.67

It is undeniable that R2P norms now form part of the lexicon policy-​makers, diplomats, practitioners, and scholars utilize when debating appropriate and effective responses to mass atrocity cases. In some crises, R2P norms have helped generate the political will necessary to take measures that actually protected civilians. It is worth remembering that prior to 2005 no such common normative reference point existed on such matters beyond the norms establishing a state’s primary responsibility for civilian protection. This does not mean R2P has reached the twilight of its norm life cycle, however. Nor can the Secretary-​General’s attempts to delineate a global implementation strategy for R2P be called a ‘slam dunk’. All states accept that they possess a primary responsibility to protect. Many states accept that they have a secondary responsibility to assist each other in fulfilling that primary responsibility, either through capacity-​building or, in cases of manifest failure, through use of force consistent with UN Charter principles. Yet a range of states, however, refuse to drink the R2P Kool-​Aid, and have only grudgingly acted in accordance with this secondary responsibility. Still others act in ways that directly contravene R2P norms. The underlying reasons for this, which have been explored only briefly here, deserve further inquiry.

146   Melissa Labonte The remainder of R2P’s life cycle will not be teleological and it could take decades or longer for R2P norms to become universally internalized—​if they ever do. While R2P sceptics operate on the largely unfounded fear that acting on the norm will usher in a new era of interventionism, R2P adherents operate largely on an equally unfounded optimism that the norm will come to regulate state behaviour and in so doing, realize its life-​saving promise. Our current understandings of R2P norms also presume that some forms of knowledge are more prevalent than others in determining whether and to what degree R2P will exude strong regulative effects and shape state behaviour. Each of these positions is problematic and must be reconciled if, to once again paraphrase Sadako Ogata, all of the language surrounding R2P is actually to have any meaning at all for those suffering on the ground. This is especially true if the leanings towards ‘upstream R2P’ through prevention become the water’s edge of its implementation. The UN graveyard is filled with prevention failures—​it is also filled with peacebuilding orphans. Where states manifestly fail in mustering the political will needed to move beyond the thorniest aspects of R2P, resolving the ‘wicked problem’ of preventing and halting mass atrocity crimes will remain an elusive goal.

Notes 1. The concept of ‘wicked problems’ originated in the urban planning literature. Wicked problems are socially complex (not necessarily technically complex) dilemmas that defy clear definitions and have multi-​causal origins and interdependencies that involve trade-​offs among competing goals and interests as well as coordination to address. Given their dynamic and shifting nature, wicked problems are generally thought to be irresolvable in their totality. This irresolvability in part derives from the fact that solutions to wicked problems require far more risk than states are normally willing to take and far more political will than states traditionally have been able to muster. Rather, such problems are typically addressed through containment and management within a given set of resource constraints, with the clear admonition that any such actions can and often do lead to entirely new sets of unforeseen or unintended consequences. Ultimately and to be contained or managed effectively, wicked problems necessitate significant behaviour change among stakeholders and affected groups, which may be difficult to realize and, in some cases, proves elusive depending on prior policy failures, which often exacerbate perceptions that such problems are intractable and impossible to ‘tame’. See Rittel and Webber 1973. 2. Geneva Conventions 1949, Common Article 3. 3. Rittel and Webber 1973, p. 167. 4. Quoted in Evans 2009, p. 45. 5. ICISS 2001, p. 16. 6. UN General Assembly 2005, paras. 138–​9. 7. Finnemore and Sikkink 1998; Katzenstein 1996; Payne 2001. 8. Ruggie 1998, p. 33. 9. Badescu and Weiss 2010, pp. 361, 369; Evans 2009, pp. 53, 63.

R2P’s Status as a Norm    147 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54.

Evans 2009, p. 31. Evans 2009, p. 53. Evans 2008, p. 286. Luck 2010b; Rosenberg 2009. Olivier de Sardan 2008. Badescu and Weiss 2010, pp. 355, 369. Weiss 2006, p. 757. Newman 2009, p. 92. Bellamy 2010, p. 160. Luck 2010b, p. 109. Luck 2010b, p. 109. Luck 2010a, p. 119. Bellamy 2009, p. 7. Serrano 2011, p. 426. Kuperman 2011, p. 125. Weber 1946, p. 280. Bellamy 2009; Evans 2009. Cunliffe 2011; Badescu and Weiss 2010; Hehir 2010; Labonte 2012, 2013; Luck 2010a, 2010b; Marks and Cooper 2010; Prantl and Nakano 2011; Stahn 2007. Campbell 2002, pp. 22–​3. Finnemore and Sikkink 1998. Campbell 2002, pp. 22–​3. Annan 1999, p. 60. Finnemore and Sikkink 1998. See for example, A/​59/​565, para. 203; A/​59/​2005, paras. 132, 135. Finnemore and Sikkink 1998. African Union 2002. See also S/​RES/​1674; S/​RES/​1706; S/​RES/​1755; S/​RES/​1888; S/​RES/​ 1894; S/​RES/​1973; S/​RES/​1975. Finnemore and Sikkink 1998. Finnemore and Sikkink 1998, p. 891. Booth Walling 2013; Dunne and Gelber 2015. S/​PV.6066, 9–​10. Finnemore and Sikkink 1998, p. 891. Evans 2009, p. 220, emphasis in original. Vaughn and Dunne 2015. US Government 1995, p. ii. US Government 1998, pp. 5–​6. US Government 1999, p. 20, emphasis added. US Government 1999, pp. 2, 26, emphasis added. US Government 2010, p. 22. US Government 2010, p. 48. Moyn 2010, p. 221. Albright and Cohen 2008. White House 2011. White House 2011; Galchinsky 2015. Risse-​Kappen 1994. Evans 2009, p. 42, emphasis added.

148   Melissa Labonte 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67.

Boli and Thomas 1999; Habermas 1984. Weiss 2006, pp. 758–​9. Olivier de Sardan 2009, p. 8. Durkheim 1915. Giddens 1984, pp. 3–​7. Olivier de Sardan 2009, p. 13. UN General Assembly 2009. Bellamy 2009, pp. 112, 125; Weiss 2006. Mills 2015. Bellamy 2013; UN General Assembly 2012. UN General Assembly 2010, 2013. Carnegie Commission on Preventing Deadly Conflict 1997. ICISS 2001, p. 75.

References African Union (2002). Constitutive Act. . Albright, Madeleine K. and William S.  Cohen (co-​chairs) (2008). Preventing Genocide: A Blueprint for U.S. Policymakers. Washington, DC: US Holocaust Memorial Museum, The American Academy of Diplomacy, and the Endowment of the U.S. Institute of Peace. Annan, Kofi (1999). ‘Two Concepts of Sovereignty, Address to the Fifty Fourth Session of the General Assembly’, in The Question of Intervention:  Statements of the Secretary-​General (New York: UN Department of Public Information). Badescu, Cristina and Thomas G.  Weiss (2010). ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’, International Studies Perspectives 11(4): 354–​74. Bellamy, Alex J. (2009). ‘Realizing the Responsibility to Protect’, International Studies Perspec­ tives 19(2): 111–​28. Bellamy, Alex J. (2010). ‘The Responsibility to Protect—​Five Years On’, Ethics & International Affairs 24(2): 143–​69. Bellamy, Alex J. (2013). ‘Making RtoP a Living Reality:  Reflections on the 2012 General Assembly Dialogue on Timely and Decisive Response’, Global Responsibility to Protect 5(1): 109–​25. Boli, John and George M.  Thomas (eds.) (1999). Constructing World Culture:  International Nongovernmental Organizations Since 1875 (Stanford, CA: Stanford University Press). Booth-​Walling, Carrie (2013). All Necessary Measures: The United Nations and Humanitarian Intervention (Philadelphia, PA: University of Pennsylvania Press). Campbell, John L. (2002). ‘Ideas, Politics, and Public Policy’, Annual Review of Sociology 28: 21–​38. Carnegie Commission on Preventing Deadly Conflict (1997). Preventing Deadly Conflict: Final Report (New York: Carnegie Commission of New York). Cunliffe, Philip (ed.) (2011). Critical Perspectives on the Responsibility to Protect: Interrogating Theory and Practice (Abingdon: Routledge). Dunne, Tim and Katharine Gelber (2015). ‘Argumentation and the Responsibility to Protect: The Case of Libya’, in Kurt Mills and David J. Karp (eds.), Human Rights Protection in Global Politics:  Responsibilities of State and Non-​State Actors (Basingstoke:  Palgrave Macmillan), pp. 288–​308.

R2P’s Status as a Norm    149 Durkheim, Emile (1915). The Elementary Forms of the Religious Life (New York: Free Press). Evans, Gareth (2008). ‘The Responsibility to Protect: An Idea Whose Time Has Come . . . and Gone?’, International Relations 22(3): 283–​98. Evans, Gareth (2009). The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Washington, DC: Brookings Institution). Finnemore, Martha and Kathryn Sikkink (1998). ‘International Norm Dynamics and Political Change’, International Organization 52(4): 887–​917. Galchinsky, Michael (2015). ‘Prevention Cascade:  The United States and the Diffusion of R2P’, in Kurt Mills and David J.  Karp (eds.), Human Rights Protection in Global Politics: Responsibilities of State and Non-​State Actors (Basingstoke: Palgrave Macmillan), pp. 268–​87. Geneva Conventions (1949). . Giddens, Anthony (1984). The Constitution of Society: Outline of the Theory of Structuration (Cambridge: Polity Press). Habermas, Jürgen (1984). The Theory of Communicative Action, trans. Thomas McCarthy (Boston: Beacon Press). Hehir, Aidan (2010). ‘The Responsibility to Protect: “Sound and Fury Signifying Nothing”?’, International Relations 24(2): 218–​39. International Commission on Intervention and State Sovereignty (ICISS) (2001). The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre). Katzenstein, Peter J. (ed.) (1996). The Culture of National Security: Norms and Identity in World Politics (New York: Columbia University Press). Kuperman, Alan J. (2011). ‘R2P: Catchy Name for a Fading Norm’, Ethnopolitics 10(1): 125–​8. Labonte, Melissa (2012). ‘Whose Responsibility to Protect? The Implications of Double Manifest Failure for Civilian Protection’, International Journal of Human Rights 16(7): 982–​1002. Labonte, Melissa (2013). Human Rights and Humanitarian Norms, Strategic Framing, and Intervention: Lessons for the Responsibility to Protect (Abingdon: Routledge). Luck, Edward (2010a). ‘The Responsibility to Protect: Growing Pains or Early Promise?’, Ethics and International Affairs 24(4): 349–​65. Luck, Edward (2010b). ‘Building a Norm:  The Responsibility to Protect Experience’, in Robert I.  Rotberg (ed.), Mass Atrocity Crimes:  Preventing Future Outrages (Washington, DC: Brookings Institution), pp. 108–​27. Marks, Stephen P. and Nicholas Cooper (2010). ‘The Responsibility to Protect: Watershed or Old Wine in a New Bottle?’, Jindal Global Law Review 2(1): 86–​130. Mills, Kurt M. (2015). ‘What Responsibilities Does the International Community Have in Complex Humanitarian Crises and Mass Atrocity Situations?’, in Kurt Mills and David J. Karp (eds.), Human Rights Protection in Global Politics: Responsibilities of State and Non-​ State Actors (Basingstoke: Palgrave Macmillan), pp. 223–​44. Moyn, Samuel (2010). The Last Utopia: Human Rights in History (Cambridge, MA: Harvard University Press). Newman, Michael (2009). ‘Revisiting the “Responsibility to Protect”’, Political Quarterly 80(1): 92–​100. Olivier de Sardan, Jean-​Pierre (2008). Researching the Practical Norms of Real Governance in Africa. Discussion Paper No. 5 (London: Africa Power and Politics Programme).

150   Melissa Labonte Payne, Rodger A. (2001). ‘Persuasion, Frames, and Norm Construction’, European Journal of International Relations 7(1): 37–​61. Prantl, Jochen and Ryoko Nakano (2011). ‘Global Norm Diffusion in East Asia: How China and Japan Implement the Responsibility to Protect’, International Relations 25(2): 204–​23. Risse-​Kappen, Thomas (1994). ‘Ideas Do Not Float Freely: Transnational Coalitions, Domestic Structures, and the End of the Cold War’, International Organization 48(2): 185–​214. Rittel, Horst W. J. and Melvin M. Webber (1973). ‘Dilemmas in a General Theory of Planning’, Policy Sciences 4(2): 155–​69. Rosenberg, Sheri P. (2009). ‘Responsibility to Protect: A Framework for Prevention’, Global Responsibility to Protect 1: 442–​77. Ruggie, John G. (1998). Constructing the World Polity: Essays on International Institutionali­ zation (New York: Routledge). Serrano, Monica (2011). ‘The Responsibility to Protect and its Critics:  Explaining the Consensus’, Global Responsibility to Protect 3(4): 425–​37. Stahn, Carsten (2007). ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’, American Journal of International Law 101(1): 99–​120. United Nations General Assembly (2005). World Summit Outcome Document, adopted by UN General Assembly Resolution A/​RES/​60/​1, 24 October. United Nations General Assembly (2009). Implementing the Responsibility to Protect: Report of the Secretary-​General, A/​63/​677, 12 January. United Nations General Assembly (2010). Report of the Secretary-​General on Early Warning, Assessment and the Responsibility to Protect, A/​64/​864, 14 July. United Nations General Assembly (2012). Report of the Secretary-​General on the Responsibility to Protect: Timely and Decisive Response, A/​66/​874–​S/​2012/​578, 25 July. United Nations General Assembly (2013). Report of the Secretary-​General on the Responsibility to Protect: State Responsibility and Prevention, A/​67/​929–​S/​2013/​399, 9 July. US Government (1995). A National Security Strategy of Engagement and Enlargement (Washington, DC: The White House). US Government (1998). A National Security Strategy for a New Century (Washington, DC: The White House). US Government (1999). A National Security Strategy for a New Century (Washington, DC: The White House). US Government (2010). National Security Strategy (Washington, DC: The White House). Vaughn, Jocelyn and Tim Dunne (2015). ‘Leading from the Front:  America, Libya and the Localization of R2P’, Conflict and Cooperation 15(1): 29–​49. Weber, Max (1946). ‘The Social Psychology of the World Religions’, in Hans H.  Gerth and C. Wright Mills (eds.), From Max Weber: Essays in Sociology (New York: Oxford University Press), pp. 267–​301. Weiss, Thomas G. (2006). ‘R2P After 9/​11 and the World Summit’, Wisconsin International Law Journal 24(3): 741–​60. White House (2011). Presidential Studies Directive on Mass Atrocities (PSD-​10). 4 August.

Chapter 9

Sovereig nt y Luke Glanville

The concept of the responsibility to protect (R2P) has been criticized by some scholars on the grounds that it is incompatible with the principle of sovereignty.1 They have charged that the idea that sovereign states should be accountable to international society for the protection of their populations is not only dangerous, because it threatens the supposed traditional rights of peoples to govern themselves free from external interference, but it is fundamentally incoherent, since ‘a power which is “accountable” to another, external, body clearly lacks sovereign authority’.2 And yet sovereign states themselves have unanimously endorsed the notion that they each have a responsibility to protect their own populations from mass atrocities and that they are prepared to not only assist each other but, if necessary, take collective action to forcibly ensure that populations are protected.3 We are therefore confronted with the question: what actually is sovereignty and how does it relate to R2P? To answer this question, this chapter begins by considering how sovereignty might be fruitfully understood. It contrasts static and ahistorical descriptions that hamper our understanding of sovereignty with accounts that more usefully emphasize sovereignty’s historically contingent and contested nature. The second and third sections then outline how sovereignty has long been understood to entail not only rights but also responsibilities, including responsibilities for the protection of a population, and they briefly trace the development of these rights and responsibilities across history. The fourth and fifth sections explore the particular relationship between sovereignty and human rights and examine the emergence of the concepts of ‘sovereignty as responsibility’ and R2P since the end of the Cold War. The final section suggests some implications of this historically-​informed account of sovereignty for the understanding and practice of R2P today.

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Understanding Sovereignty Scholars of international relations once tended to define sovereignty in static and ahistorical terms. Sovereignty, they suggested, entailed an indefeasible right to autonomous self-​government, free from external interference and intervention. Robert Gilpin, for example, insisted: ‘The state is sovereign in that it must answer to no higher authority in the international sphere. It alone defines and protects the rights of individuals and groups.’4 R. J. Vincent bluntly declared, ‘if sovereignty, then non-​intervention’.5 While this was an accurate description of how sovereignty was understood by international society at the time, scholars tended to erroneously assume that this was how sovereignty had always been understood and they proceeded to mistakenly detect such definitions of sovereignty in key moments in the historical development of the international system such as the Peace of Westphalia of 1648.6 Such a strictly non-​interventionist understanding of sovereignty became firmly entrenched in the discipline of international relations such that even scholars who recognized that sovereigns had not always enjoyed untrammelled rights to non-​intervention still proceeded on the assumption that sovereignty had always been defined in these terms.7 This assumption that sovereignty always meant freedom of action and the absence of accountability was not only historically problematic, as we shall see, but it also made it difficult for scholars to speak coherently about an idea that became increasingly prominent after the end of the Cold War—​the idea that sovereignty involves responsibilities for the protection of the population. In the account of sovereignty that scholars tended to tell, the notion of responsibilities was a new and awkward category that needed to be somehow integrated into our understanding of sovereignty alongside supposedly fundamental and timeless rights of autonomy and non-​interference. Thankfully, there has developed a substantial body of scholarship that has questioned this static and ahistorical understanding of sovereignty and subjected the principle to careful conceptual and historical inquiry. Legal scholars have long asserted that the meaning of sovereignty is not naturally given but historically contingent. Hans Kelsen, for example, claimed ‘[w]‌e can . . . derive from the concept of sovereignty nothing else than what we have purposely put into its definition’. There were no rights intrinsic to sovereignty, he insisted. There was only that which had been established in positive international law.8 Early English School theorists such as C. A. W. Manning built on these legal insights and argued that sovereignty simply meant the ‘constitutional independence’ of the state. The rights and duties that this entailed, Manning argued, were not naturally given but were derived from the prevailing principles of international law and morality that had been developed by the society of states.9 Since the early 1980s, critical theorists and constructivists have extended such insights, emphasizing the need to problematize sovereignty, rather than taking it as given, and highlighting its contingent and contested nature.10 These scholars have shown that there is no essential, unchanging definition of sovereignty. There is only that which has been

Sovereignty   153 socially and historically constructed. As Christian Reus-​Smit explains, sovereignty is ‘a social norm, subject to the same constitutive processes as all other norms, rules and principles’. The task, therefore, is not to find a timeless definition of sovereignty but to understand the ways in which it has been constructed and reconstructed across different social and historical contexts.11 In recent years, several scholars have sought to do just that, tracing significant shifts in the construction of the content and meaning of sovereignty since it first emerged in early modern Europe.12 This has enabled us to develop a better understanding of the rights and responsibilities that attend sovereignty today.

Sovereign Rights While we should be wary of establishing fixed definitions, sovereignty can be broadly and provisionally understood as a legitimated claim to political authority. Historically, this claim to sovereign political authority has been variously made by monarchs, governing assemblies, peoples, and, in a more abstract sense, states. Such claims tend to have both an internal and an external aspect. The sovereign is the supreme authority within a political community and it is independent from authorities beyond the community. Claims to sovereignty, in turn, tend to involve claims to particular rights, both domestically and internationally. Writing in the mid-​seventeenth century, for example, Thomas Hobbes attributed to his Leviathan a particularly expansive array of rights: the sovereign cannot forfeit his power; he cannot be accused of injury or be punished by his subjects; he is the sole legislator and supreme judge of controversies; and it is for him to determine the times and occasions of war and peace.13 Early theorists of sovereignty commonly indicated that sovereigns generally ought not to intrude in each other’s affairs. Hugo Grotius, for example, suggested in 1625 that, ‘since the Institution of Civil Societies, the Governors of every State have acquired some peculiar Right over their respective Subjects’, and he warned that sovereigns should not concern themselves with each other’s affairs, ‘[l]‌est by intruding into each other’s Provinces they should quarrel among themselves’.14 However, it was not until the mid-​ eighteenth century that Emer de Vattel clearly articulated the right of sovereigns to non-​ intervention, declaring: It is an evident consequence of the liberty and independence of nations, that all have a right to be governed as they think proper, and that no state has the smallest right to interfere in the government of another. Of all the rights that can belong to a nation, sovereignty is, doubtless, the most precious, and that which other nations ought the most scrupulously to respect, if they would not do her an injury.15

This sovereign right of non-​intervention became increasingly accepted and promoted by legal theorists and statesmen through the eighteenth and nineteenth centuries and it was one that was closely associated with the emerging principle of popular sovereignty

154   Luke Glanville and national self-​government. The right of non-​intervention was understood to be a reflection of the liberty of peoples or nations to govern themselves and determine their own political institutions. As Britain’s Foreign Secretary Lord Palmerston claimed in Parliament in 1830, ‘[e]‌very nation has a right to manage its own internal affairs as it pleases, so long as it injures not its neighbours’.16 The classic expression of this liberal principle would be offered in 1859 in J. S. Mill’s famous essay, ‘A Few Words on Non-​ Intervention’. However, it is worth noting that the force of this right of non-​intervention was limited by the fact that states also insisted that a fundamental attribute of sovereignty was the right to wage war. It was widely accepted that the natural liberty and independence of states meant that they should at all times retain a right to resort to war, so long as they believed that they had a just reason to do so, and that they could rightfully claim title to those territories that they conquered in such wars. It was not until the first half of the twentieth century in the Covenant of the League of Nations (1919) and the Kellogg-​Briand Pact (1928) that states finally relinquished this sovereign right to war. The sovereign right to freedom from external intervention and interference was firmly and unambiguously established by the society of states in international law only for the first time in the twentieth century. Article 2(4) of the United Nations Charter (1945) established the right of non-​intervention, prohibiting ‘the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’. Article 2(7) established a generalized principle of domestic jurisdiction, declaring: 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.17

It was argued that these non-​interventionist provisions were necessary not only to preserve international peace and security but also to secure the rights of less powerful states to govern themselves. Over the next few decades, postcolonial states in particular pushed the United Nations General Assembly to adopt ever more clear and unconditional declarations of the sovereign right of non-​intervention. Their reasons for doing so are easy to understand. For generations these peoples had been subject to the authority of others. They had been denied sovereign self-​rule and this denial had commonly been accompanied by extraordinary violence, exploitation, and humiliation. Determined to ensure that they would never again be subject to the whims and predations of powerful states, they insisted that their hard-​earned right of self-​government should be attended with a strict right of non-​intervention. The United Arab Republic, for example, claimed, ‘in the final analysis, non-​intervention was for the great Powers a duty, and for the small Powers a right and an immunity’. The Philippines insisted that the purpose of the right of non-​intervention was ‘to protect the weak from the depredations of the strong’.18 A 1965 declaration of the General Assembly was unequivocal:

Sovereignty   155 No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are condemned.19

Having fought so hard to achieve these sovereign rights, many of these states have been understandably wary of attempts to revise them in recent decades.

Sovereign Responsibilities While those static and ahistorical definitions of sovereignty that were so dominant during the Cold War tended to emphasize the rights and freedoms that attended the internal supremacy and external independence of sovereigns, it is important to recognize that, for much of the history of sovereignty, the enjoyment of these sovereign rights has been understood to be conditional on the performance of a varied and evolving range of sovereign responsibilities. Indeed, the history of sovereignty is in many ways a history of domestic and international demands that the behaviours of sovereigns be reconciled to the justifications for sovereignty, and that the rights of sovereigns be limited by the responsibilities that underpin the legitimation of their authority. A story could be told about the development of sovereign responsibilities for environmental protection and global health, prevention of the spread of weapons of mass destruction and international terrorism, adherence to the laws of war, and a range of other norms and principles. The focus here will be on sovereign responsibilities for the protection of populations. In Leviathan (1651), Hobbes famously argued that individuals could only escape the misery and brutality of the state of nature and secure their own peace and security by covenanting with each other to authorize a sovereign to rule over them. Individuals transferred their rights to a sovereign who was accorded absolute authority to rule them ‘as he shall think expedient, for their peace and common defence’.20 While the sovereign was attributed extensive rights to rule, Hobbes also made clear that sovereign authority entailed a solemn duty to protect the people. After all, this was the reason why the sovereign was granted authority in the first place: The office of the sovereign, (be it a monarch or an assembly,) consisteth in the end, for which he was trusted with the sovereign power, namely the procuration of the safety of the people; to which he is obliged by the law of nature, and to render an account thereof to God, the author of that law, and to none but him.21

Hobbes’s sovereign was accountable only to God for the performance of his duty to protect the people. However, other early modern theorists insisted that the sovereign was also accountable to earthly actors. For some, the sovereign was answerable internally,

156   Luke Glanville to the people, and failure to secure their safety could give rise to a right of resistance or revolution. For others, the sovereign was answerable externally, to neighbouring sovereigns, and failure to protect the people could give rise to a right of intervention or war.22 Indeed, even Jean Bodin, who wrote the first systematic defence of ‘absolute’ sovereignty in 1576, insisted that princes should be praised for taking up arms to rescue a people oppressed by their sovereign: For just as it is right and proper for anyone to take forcible action to defend the honour and life of those who are oppressed unjustly when the law offers no remedy, so it is highly honourable, and befitting a prince, to take up arms in defence of a whole people unjustly oppressed by a cruel tyrant . . . In such a case there is no doubt that a virtuous prince can proceed against a tyrant either by force of arms, diplomatic intervention, or process of law.23

Such arguments were repeatedly put to work by European sovereigns in the early modern period to justify the provision of assistance to persecuted religious minorities and the use of force against their tyrannical rulers.24 When Vattel articulated the sovereign right to non-​intervention in his Law of Nations (1758), he likewise indicated that this right should not be understood to impede acts to rescue populations and punish sovereigns who resorted to tyranny. He insisted that states had a right to ‘succour an oppressed people who implore their assistance’ in the case of civil war and to come to the aid of victims of intolerable religious persecution. ‘As to those monsters who, under the title of sovereigns, render themselves the scourges and horror of the human race’, he declared, ‘they are savage beasts, whom every brave man may justly exterminate from the face of the earth.’25 In the wake of the writings of theorists like John Locke and Jean-​Jacques Rousseau, and the acts of the American and French Revolutionaries, it was increasingly understood that sovereign authority resided not in the person or office of an individual ruler or assembly but in the body of the people. According to this idea of ‘popular sovereignty’, governments act merely as representatives or trustees of the people. The end of government is the security of the life and liberty of the sovereign people and, if governments fail to secure these rights, their authority devolves to the people who may set up new representatives in their place.26 As we have seen, these claims to popular self-​government were increasingly accompanied by claims to freedom from external interference and intervention through the eighteenth and nineteenth centuries. No one had the right to determine the political institutions of a state but the sovereign people themselves, it was argued. Mill even ruled out intervention in support of peoples struggling for liberty against oppressive domestic rule on the grounds that the only test of a people’s fitness for popular institutions was whether they were willing ‘to brave labour and danger for their liberation’. If a people ‘have not sufficient love of liberty to be able to wrest it from merely domestic oppressors’, he claimed, ‘the liberty which is bestowed upon them by other hands than their own, will have nothing real, nothing permanent’.27

Sovereignty   157 Nevertheless, while numerous theorists now took a strict position that no state should ever pass judgement on another and infringe its independence, the majority, including Mill, continued to admit that there were acceptable exceptions to the sovereign right of non-​intervention and one such exception was said to be instances of atrocities being committed against the people.28 Such arguments for what was now coming to be known as ‘humanitarian intervention’ were repeatedly put to work in the nineteenth century to justify interventions undertaken by European states in the Ottoman Empire and by the United States in the Western hemisphere to protect oppressed populations, persecuted minorities, and endangered foreign nationals.29 In 1921, legal theorist Ellery Stowell concluded, ‘rights are always correlative with duties, and no state can expect to retain the right of sovereign decision, called independence, when by its conduct it makes clear that it cannot fulfil the international law obligations of an independent and sovereign state’.30 This notion that sovereignty entails internationally enforceable responsibilities was not only articulated by theorists and deployed by states to justify humanitarian interventions. It was also put to work by the society of states in numerous international treaties and conventions. Even the Peace of Westphalia, which is too often erroneously associated with a non-​interventionist understanding of sovereignty, contained provisions according newly independent German princely states enforceable duties to respect the liberties of religious minorities. Provisions for religious toleration were for decades thereafter routinely incorporated into international treaties. Through the nineteenth and early twentieth centuries, treaties establishing new nation-​states similarly routinely included enforceable obligations for the protection of national minorities, culminating in the international minority-​rights regime developed in the wake of the First World War. While these minority-​rights commitments tended to be only weakly monitored and enforced, at the very least they reveal that the society of states recognized that the enjoyment of sovereign statehood did not necessarily preclude international accountability. This notion that states were externally accountable for the treatment of their populations, however, was largely abandoned after 1945 as a strictly non-​interventionist understanding of sovereignty came to be embraced by international society. The right of a sovereign people to govern themselves and determine their own political institutions was now widely considered sacrosanct, and it was understood that this sometimes meant allowing the commission of terrible crimes against parts of the population. In the 1970s, India and Vietnam were admonished by the society of states for undertaking interventions that helped to end mass atrocities in East Pakistan (which became Bangladesh) and genocide in Cambodia, respectively. Even Bangladesh, whose own sovereignty was a product of India’s 1971 intervention, denounced Vietnam’s intervention in Cambodia in 1979, reaffirming ‘the cardinal principle that States shall refrain, in their international relations, from the threat or use of force against the territorial integrity or political independence of any State’.31 For a time, then, sovereignty was understood to entail the absence of international responsibility.32

158   Luke Glanville

Sovereignty and Human Rights Even during the Cold War, however, it was still widely understood that a primary purpose of sovereignty was the protection of the people. This idea was now increasingly articulated in the language of ‘human rights’. As Reus-​Smit has shown, those postcolonial states that so forcefully promoted the sovereign right to non-​intervention through the Cold War had argued for sovereign independence and the end of colonial rule on the grounds that self-​government was both a human right and a prerequisite for the enjoyment of other human rights. The idea that states ought to promote and defend those rights within their own territories was repeatedly given expression in human rights declarations and conventions negotiated by international society. There was a tension, therefore, in the fact that the sovereignty of the territorially-​bounded state was grounded in the universal, unbounded principle of human rights.33 This gave rise to the question: what is to be done when a sovereign state fails to protect the human rights upon which its sovereignty is grounded? Put another way, how should the ethical foundations of sovereignty affect the rights and responsibilities of sovereignty? Some scholars, such as Charles Beitz, began to argue that only states that respected the human rights of their citizens deserved to retain their sovereign right of non-​interference.34 Others, such as Michael Walzer, placed greater emphasis on self-​determination, the ‘common life’ of peoples, and the importance of respecting their freedom to ‘choose their form of government and shape the policies that shape their lives’, but even he accepted that there may need to be limits to the sovereign right of non-​interference since, ‘when a government turns savagely upon its own people, we must doubt the very existence of a political community to which the idea of self-​determination might apply’.35 Such arguments, however, were not embraced by the society of states. States may have recognized a duty to promote and defend human rights, but they firmly resisted the notion that their enjoyment of sovereign rights should be conditional on the performance of this duty. The end of the Cold War, however, altered the dynamics of international relations. The UN Security Council was relieved of the paralysis that had accompanied bipolarity and, confronted by a range of emergencies around the world, found itself repeatedly addressing the tension between the sovereign right of non-​interference and the need to ensure the protection of human rights. Through the 1990s, the Security Council concluded again and again that armed conflicts, mass atrocities, and humanitarian crises within the territorial borders of sovereign states could be legitimate matters for international scrutiny, condemnation, and the imposition of sanctions. However, there remained firm opposition among numerous states, including veto-​wielding China and Russia, to any attempts to dilute the sovereign right of non-​intervention, and this precluded the adoption of any Security Council resolutions authorizing military intervention in the affairs of functioning states without their consent. While the Security Council authorized numerous Chapter VII military actions, in each instance the use of force was authorized either with the consent of the governing authorities (for example, resolution 929 on

Sovereignty   159 Rwanda) or in the absence of a functioning government that could provide consent (for example, resolution 794 on Somalia). Those interventions that did take place against the wishes of functioning states were undertaken without clear authorization by the Security Council (for example, northern Iraq and Kosovo). Security Council debates on the subject of humanitarian intervention during this decade tended to be conducted in the language of ‘sovereignty versus human rights’. Sovereignty continued to be understood in terms of a strict right of non-​intervention, as it had been during the Cold War, and the international enforcement of human rights was framed as its antithesis. Some states argued that the sovereign right of non-​intervention was inviolable while others insisted that the demands of human rights trumped the rights of sovereigns. However, while this increasingly intractable debate about humanitarian intervention raged among states, a succession of UN Secretaries-​General began to call for a redefinition of sovereignty. In 1991, Javier Pérez de Cuéllar suggested: We need not impale ourselves on the horns of a dilemma between respect for sovereignty and the protection of human rights. The last thing the United Nations needs is a new ideological controversy. What is involved is not the right of intervention but the collective obligation of States to bring relief and redress in human rights emergencies.36

The following year, Boutros Boutros-​Ghali suggested an alternative to the prevailing absolutist understanding of sovereignty. The alternative was the ‘universal sovereignty that resides in all humanity’ and that underlies ‘the rights of the individual and the rights of peoples’.37 Boutros-​Ghali appointed Francis Deng to the role of Representative to the Secretary-​General on Internally Displaced Persons and Deng and his collaborators set about developing a conceptual framework that justified international access to, and protection of, the millions of victims of war and violence around the world who had been displaced from their homes but remained within sovereign territorial boundaries. The central idea around which Deng built his argument for international assistance and protection of the vulnerable beyond borders was termed ‘sovereignty as responsibility’.38 Deng claimed that sovereignty was not merely a right but a responsibility. ‘Normatively, to claim otherwise would be to lose sight of its purpose in the original context of the social contract, taking the means for the end.’ The right to self-​government and freedom from external interference was merely a means to the end of good governance and the provision of basic needs to the population. If the sovereign responsibility ‘to preserve life-​sustaining standards for its citizens’ was not performed, Deng argued, ‘the right to inviolability should be regarded as lost, first voluntarily as the state itself asks for help from its peers, and then involuntarily as it has help imposed on it in response to its own inactivity or incapacity and to the unassuaged needs of its own people’.39 Such claims echoed those that had been heard in past centuries about the solemn responsibilities of sovereigns to secure the safety of the people and they resonated with past demands of international society and actions of states aimed at enforcing these responsibilities. Nevertheless, Deng’s clear formulation of ‘sovereignty as responsibility’ was

160   Luke Glanville groundbreaking. It repudiated claims about the inviolable right of sovereigns to non-​ interference that had become so dominant through the Cold War and it boldly asserted that international society had a legitimate role to play in assisting and, if necessary, coercing sovereign states to ensure the protection of populations. This conceptualization of sovereignty was placed squarely on the international public agenda a few years later by Secretary-​General Kofi Annan. In a series of provocative speeches given in the context of the Kosovo crisis in 1998–​9, Annan asserted that ‘strictly traditional notions of sovereignty can no longer do justice to the aspirations of peoples everywhere to attain their fundamental freedoms’.40 It was therefore appropriate that sovereignty be redefined to include international responsibilities for the protection of human rights, he claimed, and the tools for such a redefinition could already be found in the UN Charter, which was issued not in the name of governments but of ‘peoples’: ‘The Charter protects the sovereignty of peoples. It was never meant as a licence for governments to trample on human rights and human dignity. Sovereignty implies responsibility, not just power.’41 Annan challenged the society of states to somehow resolve the intractable debate about humanitarian intervention. The solution offered by the International Commission on Intervention and State Sovereignty (ICISS) in December 2001 was grounded in this very notion of ‘sovereignty as responsibility’.

Sovereignty and R2P The understanding of sovereignty proposed in ICISS’s Responsibility to Protect report relied heavily on ideas proposed by others during the previous decade, but it quickly became a touchstone for debate. The ICISS was careful to affirm the value of sovereignty. It noted that sovereignty protects states in ‘a dangerous world marked by overwhelming inequalities of power and resources’ and it also protects peoples by recognizing their equal worth and dignity, securing their ‘unique identities and their national freedom’, and affirming their ‘right to shape and determine their own destiny’.42 However, the ICISS also insisted that sovereignty does not grant states the right to treat their populations however they wish. ‘State sovereignty implies responsibility’, it claimed, and while ‘the primary responsibility for the protection of its people lies with the state itself ’, the society of states bears a ‘residual responsibility’. ‘Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-​intervention yields to the international responsibility to protect.’43 A version of this concept was unanimously endorsed by the society of states less than four years later, at the 2005 UN World Summit. Paragraphs 138 and 139 of the Outcome Document negotiated by states spoke to the construction of sovereignty in three key ways, subsequently explicated as the three ‘pillars’ of R2P.44 First, the

Sovereignty   161 Outcome Document confirmed that sovereignty entails a responsibility to protect populations from four specific crimes:  genocide, war crimes, ethnic cleansing, and crimes against humanity. This was not a new idea and indeed the prohibition of these crimes was already well established in international law. Nevertheless, it was significant that states publicly declared that ‘[w]‌e accept that responsibility and will act in accordance with it’. Second, the Outcome Document declared that international society should ‘encourage and help’ states to exercise their responsibility to protect by supporting the United Nations in establishing capability for early warning, by helping states build capacity to protect, and by assisting states that are under stress. This provision has no necessary impact on the constructed meaning of sovereignty since the assumption is that help and assistance will be provided with the consent of the sovereign state. Nevertheless, it was significant insofar as it reaffirms that primary responsibility for protection continues to rest with the sovereign state. According to this provision, international society should work to strengthen the sovereign state rather than undermine or bypass it, since a strong and capable sovereign is, for better or worse, assumed to remain the best guarantor of human protection. Third, the Outcome Document confirmed that, should encouragement and assistance be insufficient, the society of states may rightfully take measures to enforce the protection of populations. The negotiated agreement declared that international society, acting through the United Nations, was prepared not only to use appropriate ‘diplomatic, humanitarian and other peaceful means’ to help protect populations, but even to take collective action under Chapter VII of the UN Charter ‘should peaceful means be inadequate and national authorities are manifestly failing to protect their populations’. While the idea of international enforcement of sovereign responsibilities may have deep historical roots, it had never before been so plainly endorsed, and in such global terms, by the society of states. The Security Council has authorized collective action against a functioning but non-​ consenting government to protect a population threatened with mass atrocities only once, in resolution 1973 on Libya in 2011. In this instance, at least, the Security Council agreed to take coercive measures to enforce the performance of sovereign responsibilities. Whether it takes such action again in the future remains to be seen. While states today routinely acknowledge that sovereignty entails a responsibility to protect, some of the great and emerging powers continue to express pragmatic, and sometimes principled, opposition to coercive enforcement of that responsibility. The hope of course is that the Security Council needs to contemplate whether or not to authorize the resort to force against a sovereign state infrequently if ever. A preferable outcome would be that sovereign states consistently discharge their responsibilities for the protection of their populations and, where they lack the capacity to do so, they are willing to seek the help of others who are, in turn, prepared to provide the necessary assistance. Such behaviour would not only strengthen sovereignty but, more importantly, serve to better protect vulnerable people from atrocities.

162   Luke Glanville

Implications for R2P To conclude, I want to suggest two key implications of this account of sovereignty for present-​day understanding and practice of R2P. First, if we recognize that sovereignty has for much of its history been constructed to entail responsibilities for the protection of populations, we need also to wrestle with the inequitable and often abusive ways in which these responsibilities have been enforced internationally. As several scholars have shown, the rights and responsibilities of sovereignty have often been applied unequally, by the great powers against the weak, and by members of the core of the ‘family of nations’ against those on the periphery.45 As noted earlier, the humanitarian interventions of the nineteenth century were all waged against sovereigns on the fringes of international society, by the European great powers in the decaying Ottoman Empire and by the United States in the Western hemisphere (although the US intervention in Cuba in 1898 was waged against a European sovereign, Spain). Similarly, treaty provisions demanding the protection of minority rights have tended to be imposed on new or reorganized states while already existing states have often been reluctant to accept them for themselves. Moreover, it is important to recognize that, beyond the ‘family of nations’, the denial of sovereignty and the horrors of colonial rule were commonly justified in the nineteenth and early twentieth centuries in language remarkably similar to the language of R2P, emphasizing the demanding responsibilities of self-​government, which ‘uncivilized’ peoples were thought unable to fulfil, and the responsibilities of the ‘civilized world’ to ensure the protection of these peoples. The present-​day notion that sovereignty entails an internationally enforceable ‘responsibility to protect’ is different from past constructions of the rules of sovereignty in important ways. Rather than a concept imposed by the West upon the rest, by the powerful upon the weak, or by established states on newly created states, R2P is one that has been championed by actors from around the world, unanimously endorsed by international society, and implemented by African, Asian, and South American states in their own regions in a range of coercive and non-​coercive ways. And rather than justifying the extinguishment of sovereignty and the subjection of peoples to foreign rule, R2P calls for the provision of assistance, the application of pressure and sanctions, and only in the most extreme cases the temporary resort to force in defence of a vulnerable sovereign people. Nevertheless, the blindness of nineteenth-​century liberals in particular to the inequalities and injustices of European interventionism and imperialism should give pause to anyone enthusiastically advocating the international enforcement of liberal principles today. Proponents of R2P need to be wary of the ways in which they might be tempted, perhaps without realizing, to embrace ‘civilizing’ policies that again lead to the political and legal exclusion or even exploitation of ‘uncivilized’ peoples. Perhaps most obviously, there is a need to carefully consider the existing structures of international authority for the enforcement of sovereign responsibilities, particularly within the Security Council, and to heed the widespread calls for reform

Sovereignty   163 so that past practices of unequal and abusive enforcement are not repeated, and instead the rules of sovereignty are applied fairly and effectively by a more representative international authority.46 The second implication of this account of sovereignty is that we ought to be careful not to assume that the problem of mass atrocities can be solved by constructing the rules of sovereignty in a particular way. There has been a tendency among some advocates of R2P to overstate the significance of the present-​day acceptance of the notion that sovereignty entails a ‘responsibility to protect’. As we have seen, sovereignty has long been understood to entail such a responsibility, and often these responsibilities have been understood to be internationally enforceable, and yet mass atrocities have been repeatedly committed by tyrannical rulers and authoritarian governments, and by criminals within states that have lacked the capacity to stop them, and international society has acted to end the suffering far too infrequently. History would suggest that the problem has not been the particular understanding of sovereignty that has prevailed at a given time so much as the unwillingness and incapacity of sovereigns to discharge their responsibility to protect, and the unwillingness and incapacity of international society to take up its own burden of responsibility to consistently encourage, help, and, where necessary, compel sovereigns to responsibly protect their populations. This is the problem that R2P seeks to address.

Notes 1. This chapter draws on Glanville 2014. 2. Chandler 2004, p. 65. 3. UN Doc A/​60/​1, 24 October 2005, paras. 138–​9. 4. Gilpin 1981, p. 17. 5. Vincent 1986, p. 113. 6. See Schmidt 2011. 7. See, for example, Krasner 1999. 8. Kelsen 1944, pp. 41, 38. See also Suganami 2007. 9. See Suganami 2001. 10. See, for example, Ashley 1984; Bartelson 1995; and Bierksteker and Weber 1996. 11. Reus-​Smit 2001, p. 526. 12. See, for example, Barkin and Cronin 1994; Philpott 2001; Reus-​Smit 2013; Glanville 2014. 13. Hobbes 1996, xx.3. 14. Grotius 2005, ii.25.8.1. 15. Vattel 2008, ii.4.54. 16. Quoted in Trachtenberg 1993, p. 22. 17. Weaker versions of these principles were established in Articles 10 and 15(8) of the Covenant of the League of Nations. 18. Quoted in Vincent 1974, p. 253. 19. UNGA resolution 2131 [xx], 1965. See, similarly, UNGA resolution 1514 (xv), 1960; UNGA resolution 2625 (xxv), 1970; UNGA resolution 36/​103, 1981. 20. Hobbes 1996, xvii.13, emphasis in original.

164   Luke Glanville 21. Hobbes 1996, xxx.1, emphasis in original. 22. For recent treatments of the history of ideas and practices of intervention from the early modern period to the present day, see Simms and Trim 2011; Recchia and Welsh 2013; Glanville 2014; and a special issue of Review of International Studies 39(5) (2013) on ‘Intervention and the Ordering of the Modern World’. 23. Bodin 1955, ii.4–​5. 24. See Simms and Trim 2011, pp. 29–​88. 25. Vattel 2008, ii.4.56, 62. 26. See Locke 1967. 27. Mill 1984, p. 122. 28. Mill 1985, p. 346. 29. See Bass 2008; Rodogno 2011. 30. Stowell 1921, pp. 313–​15. 31. Quoted in Wheeler 2000, p. 95. 32. The one exception to the strict principle of non-​interference that international society was prepared to countenance during the Cold War was in response to instances of ongoing colonial-​style practices of racial discrimination and denial of self-​rule, such as in South Africa and Rhodesia. 33. Reus-​Smit 2001. 34. Beitz 1979. 35. Walzer 1977, pp. 53–​4, 101. 36. UN Doc A/​46/​1, 13 September 1991, p. 5. 37. Boutros-​Ghali 1992, pp. 98, 99. 38. Deng et al. 1996. 39. Deng et al. 1996, p. xviii. 40. Annan 1999. 41. Annan 1998. 42. ICISS 2001, p. 7. 43. ICISS 2001, pp. xi, 17. 44. See UN Docs A/​60/​1, 24 October 2005, and A/​63/​677, 12 January 2009. 45. See, for example, Gong 1984; Keene 2002; Simpson 2004. 46. For a critique of the tendency of global governance institutions to create new international hierarchies and marginalize and exclude certain sovereign peoples, see Bartelson 2014. For a suggested framework of constitutional pluralism aimed at reconciling the authority of these institutions with a norm of sovereign equality, see Cohen 2012.

References Annan, Kofi A. (1998). ‘Secretary-​General Reflects on “Intervention” in Thirty-​Fifth Annual Ditchley Foundation Lecture’, 26 June, UN doc. SG/​SM/​6613. Annan, Kofi A. (1999). ‘The Secretary-​General Address to the United Nations General Assembly’, 20 September, UN doc. UNIS/​SG/​2381. Ashley, Richard K. (1984). ‘The Poverty of Neorealism’, International Organization 38(2): 225–​86. Barkin, J. Samuel and Bruce Cronin (1994). ‘The State and the Nation: Changing Norms and the Rules of Sovereignty in International Relations’, International Organization 48(1): 107–​30.

Sovereignty   165 Bartelson, Jens (1995). A Genealogy of Sovereignty (Cambridge: Cambridge University Press). Bartelson, Jens (2014). Sovereignty as Symbolic Form (Abingdon: Routledge). Bass, Gary J. (2008). Freedom’s Battle: The Origins of Humanitarian Intervention (New York: Alfred A. Knopf). Beitz, Charles R. (1979). ‘Bounded Morality:  Justice and the State in World Politics’, International Organization 33(3): 405–​24. Bierksteker, Thomas J. and Cynthia Weber (eds.) (1996). State Sovereignty as Social Construct (Cambridge: Cambridge University Press). Bodin, Jean (1955). Six Books of the Commonwealth, trans. M. J.  Tooley (Oxford:  Basil Blackwell). Boutros-​Ghali, Boutros (1992). ‘Empowering the United Nations’, Foreign Affairs 71(5): 89–​102. Chandler, David (2004). ‘The Responsibility to Protect? Imposing the “Liberal Peace”’, International Peacekeeping 11(1): 59–​81. Cohen, Jean L. (2012). Globalization and Sovereignty:  Rethinking Legality, Legitimacy, and Constitutionalism (Cambridge: Cambridge University Press). Deng, Francis M., Sadikel Kimaro, Terrence Lyons, Donald Rothchild, and I. William Zartman (1996). Sovereignty as Responsibility: Conflict Management in Africa (Washington, DC: Brookings Institution). Gilpin, Robert (1981). War and Change in World Politics (Cambridge: Cambridge University Press). Glanville, Luke (2014). Sovereignty and the Responsibility to Protect: A New History (Chicago, IL: University of Chicago Press). Gong, Gerrit W. (1984). The Standard of ‘Civilization’ in International Society (Oxford: Clarendon Press). Grotius, Hugo (2005). The Rights of War and Peace, ed. Richard Tuck (Indianapolis, IN: Liberty Fund). Hobbes, Thomas (1996). Leviathan (Oxford: Oxford University Press). International Commission on Intervention and State Sovereignty (ICISS) (2001). The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre). Keene, Edward (2002). Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge: Cambridge University Press). Kelsen, Hans (1944). Peace through Law (Chapel Hill, NC: University of North Carolina Press). Krasner, Stephen D. (1999). Sovereignty:  Organized Hypocrisy (Princeton, NJ:  Princeton University Press). Locke, John (1967). Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press). Mill, John Stuart (1984). ‘A Few Words on Non-​Intervention’, in Collected Works of John Stuart Mill, vol. 21: Essays on Equality, Law and Education, ed. John M. Robson (London: Routledge & Kegan Paul), pp. 111–​24. Mill, John Stuart (1985). ‘Vindication of the French Revolution of February, 1848’, in ‘Reply to Lord Brougham and Others’, in Collected Works of John Stuart Mill, vol. 20: Essays on French History and Historians, ed. John M. Robson (London: Routledge & Kegan Paul), pp. 317–​63. Philpott, Daniel (2001). Revolutions in Sovereignty: How Ideas Shaped Modern International Relations (Princeton, NJ: Princeton University Press). Recchia, Stefano and Jennifer M. Welsh (eds.) (2013). Just and Unjust Military Intervention: European Thinkers from Vitoria to Mill (Cambridge: Cambridge University Press).

166   Luke Glanville Reus-​Smit, Christian (2001). ‘Human Rights and the Social Construction of Sovereignty’, Review of International Studies 27(4): 519–​38. Reus-​Smit, Christian (2013). Individual Rights and the Making of the International System (Cambridge: Cambridge University Press). Rodogno, Davide (2011). Against Massacre:  Humanitarian Interventions in the Ottoman Empire, 1815–​1914 (Princeton, NJ: Princeton University Press). Schmidt, Sebastian (2011). ‘To Order the Minds of Scholars:  The Discourse of the Peace of Westphalia in International Relations Literature’, International Studies Quarterly 55(3): 601–​23. Simms, Brendan and D. J.  B. Trim (eds.) (2011). Humanitarian Intervention:  A  History (Cambridge: Cambridge University Press). Simpson, Gerry (2004). Great Powers and Outlaw States: Unequal Powers in the International Legal Order (Cambridge: Cambridge University Press). Stowell, Ellery (1921). Intervention in International Law (Washington, DC: John Bryne & Co). Suganami, Hidemi (2001). ‘C. A. W. Manning and the Study of International Relations’, Review of International Studies 27(1): 91–​107. Suganami, Hidemi (2007). ‘Understanding Sovereignty Through Kelsen/​Schmitt’, Review of International Studies 33(3): 511–​30. Trachtenberg, Marc (1993). ‘Intervention in Historical Perspective’, in Laura W.  Reed and Carl Kaysen (eds.), Emerging Norms of Justified Intervention (Cambridge, MA: American Academy of Arts and Sciences), pp. 15–​36. United Nations General Assembly (2005). World Summit Outcome Document, adopted by UN General Assembly Resolution A/​RES/​60/​1, 24 October. Vattel, Emer de (2008). The Law of Nations, ed. Bela Kapossy and Richard Whatmore (Indianapolis, IN: Liberty Fund). Vincent, R.  J. (1974). Nonintervention and International Order (Princeton, NJ:  Princeton University Press). Vincent, R.  J. (1986). Human Rights and International Relations (Cambridge:  Cambridge University Press). Walzer, Michael (1977). Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books). Wheeler, Nicholas J. (2000). Saving Strangers:  Humanitarian Intervention in International Society (Oxford: Oxford University Press).

Chapter 10

Moral Age nts of Protection a nd Su pplem e nta ry Resp onsibi l i t i e s to Prote c t Toni Erskine

Protecting vulnerable populations from genocide, ethnic cleansing, war crimes, and crimes against humanity, even when this would entail military intervention into another state without the consent of its government, is widely maintained to be morally required. In the words of Secretary-​General Ban Ki-​moon, ‘[t]‌he responsibility to protect, as it emerged from the Outcome Document of the 2005 World Summit . . . expresses a profound moral imperative in today’s world’.1 This is not, of course, the only way that the proposed responsibility to protect—​or, more colloquially, R2P—​is understood. There is also an important focus on R2P’s international legal standing and force, which has yielded a range of interpretations—​none of which necessarily corresponds to a particular take on its moral status. Moreover, some critics lament that such moral language merely serves as a convenient cover for the self-​interested abuse of the concept. Nevertheless, the assumption that R2P represents a moral imperative is regularly highlighted by scholars,2 frequently invoked in both calls to action when populations face grave human rights abuses and cries of condemnation when intervention is not forthcoming, and implicit in key articulations of R2P, including the seminal 2001 report of the International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect, the 2005 World Summit Outcome Document (WSOD), and Ban Ki-​moon’s 2009 report, Implementing the Responsibility to Protect.3 In short, R2P is widely perceived and espoused as a specifically moral responsibility.4

168   Toni Erskine Given this proposed status, however, R2P faces two limitations that are both conceptual and practical in nature:  a worrying ambiguity about who—​or what—​bears this moral responsibility; and an apparent contradiction between the understanding of R2P as a moral imperative and accompanying arguments for the conditions under which it can legitimately be met in the most extreme and urgent circumstances. The former limitation lies in the widely-​endorsed commitment that it is the ‘international community’ that bears the responsibility to protect vulnerable populations that lack the protection of—​or, indeed, come under threat from—​their own governments. The latter limitation follows from the more specific designation of the United Nations (UN) as the body to discharge this remedial responsibility to protect,5 and from interpretations that the UN Security Council therefore possesses unconditional exclusive legitimacy to authorize military intervention on humanitarian grounds according to R2P.6 The aim of this chapter is to take seriously the assumption that R2P represents a moral imperative by asking how best to ensure that it can be discharged in practice. In the process, it endeavours to highlight tensions between how R2P is articulated and arguments for its legitimate implementation. It will begin by maintaining that identifying a range of ‘moral agents of protection’ and ‘supplementary responsibilities to protect’ is fundamental to any attempt to realize R2P. It will then offer an account of the loci of moral responsibility implicit in prominent articulations of R2P that supports and extends this argument. Taken to its logical conclusion, this account demands that tertiary moral agents of protection step in when both the host state and the UN are unwilling or unable to act. Finally, in an attempt to uncover bodies that can discharge this residual responsibility to protect, the chapter will propose that, if there is a moral responsibility to protect vulnerable populations, then, in the absence of a viable alternative, states and other institutional agents have a shared responsibility to come together and act in concert. Before proceeding, it is necessary to offer a qualification and accompanying caveat. This chapter will focus on non-​consensual military intervention as one means of discharging the proposed moral responsibility to protect. Yet, this focus is meant neither to ignore nor deny that R2P is, importantly, a much broader concept—​one that encompasses responsibilities to prevent, react, and rebuild,7 and, in a more recent conceptualization, as supported by the three equal ‘pillars’ of a state’s responsibility to protect its own population, and the international community’s respective responsibilities to assist states in this endeavour and to respond in ‘a timely and decisive manner’ if they do not.8 The more restricted focus adopted here is valuable for two reasons. First, the urgency of the cases that thereby fall within its purview most starkly reveal insights into alternative moral agents of protection and supplementary responsibilities to protect that are relevant to all stages and pillars of R2P. Second, and conversely, this focus speaks directly to important debates and dilemmas that are unique to the crucial problem of how to prevent or halt mass atrocity when a state is failing to discharge its primary responsibility to protect its own population, peaceful responses have been exhausted, and UN Security Council authorization for an armed response is not forthcoming.

Agents of Protection and Responsibilities to Protect    169

Revisiting Responsibility Assigning, assuming, and apportioning responsibility are prominent practices in world politics. They are also central to every iteration of R2P. Statements of responsibility, and particularly statements of moral responsibility (which will be the focus of this chapter), rely on two different, but intimately related, understandings of the term. Prospective moral responsibility involves ex ante judgements regarding acts that ought to be performed or forbearances that must be observed. Retrospective moral responsibility entails ex post facto assessments of a particular event or set of circumstances for which an agent’s acts or omissions are such that the agent is the object of praise or blame. The forward-​looking variation is heard in assertions of duty and obligation; the backward-​ looking variation emerges most often in charges of blame and accountability.9 It is the forward-​looking variation that is explicitly invoked in accounts of R2P and that allows R2P to provide a necessary corollary and potentially action-​guiding counter-​balance to what has been criticized as the overwhelming attention paid to the more passive notions of ‘recipience and [human] rights’ in world politics.10 The intimately related, retrospective notion of responsibility is an integral part of evaluations of action and inaction in specific cases when the proposed duty to protect is deemed not to have been discharged. Statements by two UN Secretaries-​General, both contemplating the consequences of inaction in the face of widespread human rights violations, provide respective examples of each of these two understandings of responsibility. ‘[T]‌he international community has a moral responsibility’, declared Ban Ki-​moon, ‘to stop the bloodbath and find peace for the people of Syria’. Apportioning moral responsibility for approximately 800,000 deaths in 1994, Kofi Annan lamented that ‘the international community’ is ‘guilty of sins of omission’ in the context of the Rwanda genocide.11 These statements exemplify the judgements of prospective and retrospective moral responsibility so commonly voiced in world politics. Yet, by implying that duties might somehow be borne by, and blame apportioned to, the international community, they also exemplify a common category error and accompanying ambiguity that is deeply worrying and consequential. Significantly, this problematic move of making the international community the object of attributions of responsibility is prevalent in key articulations of R2P, beginning with the 2001 ICISS report: ‘if the state is unable or unwilling to fulfill this responsibility [to protect], or is itself the perpetrator, then it becomes the responsibility of the international community to act in its place’.12 The reason that this is a problematic move is straightforward. To be intelligible, attributions of moral responsibility—​whether in the form of prescriptions or evaluations of action—​must be directed towards entities that are capable of responding to what we understand to be moral imperatives. This means that they must be directed towards bodies that possess the capacities necessary to contemplate, recognize the significance of, and ultimately execute different courses of action. In other words, they must be directed towards moral agents. This is important. Mistakenly assuming that moral

170   Toni Erskine responsibilities can be borne by bodies that do not qualify as moral agents when considering how best to respond to crises in world politics, or overlooking those bodies that do qualify, can have tragic and far-​reaching consequences. This is particularly true in those urgent situations that evoke R2P’s responsibility to react. Humanitarian emergencies by definition do not allow the luxury of time needed to correct misdirected assignments of responsibility and dead-​end calls to action when judgements are made that something must be done now, but there is a lack of understanding of who—​or what—​can respond. In order to identify bodies that can respond to the proposed moral imperative to protect populations from mass atrocity, an understanding of moral agency is required. Although philosophers rely on quite different standards in identifying those specific features of individual human beings that define them as moral agents, they agree, in general terms, that to qualify as such one must possess capacities both for understanding and reflecting upon moral requirements, and for acting in such a way as to conform to these requirements. Moreover, and crucially, for one to then be able to exercise moral agency—​and to reasonably be expected to discharge specific duties—​an additional condition must be satisfied. Namely, one must not only possess the capacities to respond to moral requirements, but also the (limited) independence from other agents and structural constraints necessary to do so.13 Even though moral agency is usefully analysed in the context of individual human beings, one need not assume that it is found only there. Indeed, the tendency to understand moral agency exhaustively in terms of discrete flesh-​and-​blood agents fails to support compelling accounts of our expectations and failures in world politics. After all, individual human beings on their own lack the power, coordination, and resources necessary to discharge the widely-​endorsed duty to protect populations from mass atrocity. Moreover, explanations of what went wrong when such tragedies are neither averted nor mitigated cannot be reduced without remainder to the acts and omissions of individual human beings. Attributions of moral responsibility must also be directed elsewhere; our understanding of moral agency needs to be rethought accordingly. Importantly, the defining features of moral agency—​ capacities for deliberating over possible courses of action and their consequences, and acting on the basis of this deliberation—​do not preclude certain collectivities from also qualifying. Indeed, some theorists defend formal organizations as potential bearers of moral responsibilities in their own right.14 One might, for example, argue that certain collectivities with enduring, corporate identities, formal organizational structures and decision-​making procedures, and mechanisms for effectively translating decisions into action qualify as ‘institutional moral agents’.15 Institutional moral agents can be assigned duties and apportioned blame in the context of particular acts and omissions in a way that is not reducible to their individual constituents—​as long as they enjoy both the internal capacities and the external conditions necessary to perform the requisite actions. This final qualification simply highlights that even those bodies that meet the criteria for institutional moral agency cannot reasonably be expected to discharge a particular duty if, for example, their decision-​making capacities are compromised or they face disenabling conditions, such as a lack of essential resources to carry out the planned course of

Agents of Protection and Responsibilities to Protect    171 action, obstructions by other agents, or even normative constraints in the form of the alleged illegitimacy of the action itself. This account of institutional moral agency suggests two important lines of argument. First, it highlights a range of bodies in world politics that prima facie possess the capacities necessary to respond to the widely-​espoused moral responsibility to protect populations from mass atrocity—​and cautions against the cavalier assumption that this responsibility can coherently be assigned to bodies that do not. Second, through its recognition of the circumstances under which it would be unreasonable to expect an agent to discharge a particular duty, this account also points to accompanying, and largely neglected, responsibilities that must be discharged if R2P as a moral imperative is to be met.

Moral Agents of Protection Drawing on this account of institutional moral agency, and inspired by Onora O’Neill’s label ‘agents of justice’,16 it is possible to identify moral agents of protection in world politics. Indeed, if the claim that R2P represents a moral imperative is to be taken seriously, this is a fundamental task. In addition to the sophisticated, integrated capacities for deliberation and action necessary to qualify as a moral agent, a moral agent of protection must possess the additional capacities needed to discharge at least some of the responsibilities proposed in R2P’s three pillars, whether to safeguard its own population (in the case of a host state), to support states as they endeavour to protect their respective populations, to employ pacific remedial measures when they fail, or, when necessary, to engage in coercive protective action. Such additional capacities are many and varied. They include specialized cultural, historical, and political knowledge of the state or population requiring assistance, an aptitude for negotiation, mediation and diplomacy, logistical and intelligence-​gathering abilities, and also, in the case of coercive protective action, military power. Although discrete states have different internal capacities, and thereby meet the criteria for institutional moral agency to different degrees,17 the overwhelming majority possess the general defining features to qualify as both moral agents and moral agents of protection. Indeed, in addition to states being expected to protect their own populations from mass atrocity, the most powerful states are often, problematically, considered ‘agents-​of-​last-​resort’, or the agents of protection in situations of acute humanitarian crisis deemed to require armed intervention in cases when the most obvious (often intergovernmental) agents decline to act.18 Intergovernmental organizations (IGOs) are—​often precarious—​institutional moral agents, which also possess the capacities to discharge at least some of R2P’s explicit responsibilities.19 The most prominent constituent of this category is the UN, particularly in relation to the remedial responsibility to protect when military intervention is required. Even though the UN lacks its own police and military force, it can act in such circumstances either by deploying troops through UN missions or by authorizing willing and able Member States or regional organizations

172   Toni Erskine to act in its place.20 Military alliances such as the North Atlantic Treaty Organization (NATO) and regional organizations such as the European Union (EU), Arab League, and the African Union (AU) are also potential moral agents of protection. Moreover, transnational corporations (TNCs) are largely neglected—​yet conceivable—​candidates. Powerful companies have been argued to hold positive duties in certain circumstances ‘to protect, promote or fulfil’ the human rights of the citizens in the countries in which they are operating,21 and are often well-​placed and well-​resourced to discharge some pillar two responsibilities, such as persuading host states to protect their own populations and even helping them to build capacities to do so. Finally, although this chapter focuses on their institutional counterparts, it would be remiss not to acknowledge individual human beings as moral agents of protection. Although we cannot expect these flesh-​and-​blood agents to discharge many of the positive duties set out in each of R2P’s three pillars (and therefore must look to formal organizations), individual human agents—​particularly those imbued with enhanced capacities and resources in particular roles—​have the potential to make use of peaceful means, through diplomacy and effective leadership, to help protect populations from mass atrocity.22 Under pillar three, for example, the UN Secretary-​ General is expected to employ dialogue and persuasion when host states manifestly fail to protect their populations, and to relay information to the Security Council and General Assembly to ensure a timely and decisive response.23 We also place varying degrees of expectation on a much broader range of individual human agents to support relevant organizations in accessing and processing information, deliberating, and acting. The fact that they might themselves be constituents of relevant institutional moral agents of protection neither precludes their own status as moral agents, nor somehow absolves them from playing crucial supporting roles in ensuring that R2P is realized. States, IGOs, non-​state actors such as TNCs, and individual human agents can reasonably be expected to discharge at least some of the positive duties put forward in accounts of R2P. They can also be blamed for the acts and omissions that derogate from such duties. However, the international community—​an amorphous collectivity incapable of unified, purposive action—​is not the type of entity to which one can coherently assign duties or, indeed, apportion blame.24 Oblique appeals to the international community might be prompted by the laudable sentiment ‘never again’, but such appeals do little to guide action or set in place meaningful policies. This assessment reveals a worrying ambiguity, and conspicuous void, in prominent accounts of R2P that identify the international community as bearer of the responsibility to protect.

The Designated Secondary Moral Agent of Protection Article 139 of the 2005 WSOD provides an apparent remedy for this ambiguity and one answer to the question of which amongst the institutional moral agents outlined earlier should act when a state fails to protect its own population from mass atrocity. In Alex Bellamy’s words, ‘the World Summit has clarified relevant roles and responsibilities’25—​ or, perhaps more accurately, has made a promising start towards this goal. The WSOD

Agents of Protection and Responsibilities to Protect    173 explicitly states that ‘[t]‌he international community, through the United Nations .  .  . has the responsibility to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’ and clearly restricts collective action under Chapter VII to that taken ‘through the Security Council’ when states manifestly fail to do so.26 This is an important clarification. Yet, if the UN is understood to be the only body tasked with discharging the responsibility to protect in such urgent cases, then it is also an inadequate one.

Shortcomings Even if we agree that the UN is best placed to discharge the proposed responsibility to protect when states fail to secure their own populations,27 we are nevertheless faced with a problem. Namely, the UN has assumed this remedial responsibility, and has claimed a monopoly on authorizing interventions conducted by other agents, yet it frequently fails to act in just those circumstances in which R2P is meant to trigger a ‘timely and decisive’ response and coercive intervention is deemed the only remaining viable option. Its failure to act in such cases can have one of three sources: a decision to neither deploy troops itself nor provide authorization for other bodies to intervene; a neglect to gather, disseminate, and process relevant information or otherwise engage in effective deliberation and decision-​making; or an inability to act due to a decision-​making stalemate (brought on by the exercise of a veto in the Security Council) or a paucity of resources (often in the form of insufficient material support from its Member States). According to the account of institutional moral agency already offered, blame would fall on the UN for derogating from its assumed responsibility in the first scenario (when there is a decision not to act), and possibly in the second (when there is a failure to adequately access and process information, as long as there is a capacity to do so). However, I will suggest that other moral agents of protection derogate from their responsibilities both in the third scenario (when either internal weaknesses or external disenabling conditions make it impossible for the UN to act), and in the previous scenarios if those bodies capable of responding do not step into the breach when the UN falters. In other words, all three potential sources of failure necessarily call to action alternative moral agents of protection—​and point to the need for supplementary responsibilities to protect.

Supplementary Responsibilities to Protect Supplementary responsibilities to protect include both supporting responsibilities, which make it possible for R2P as it is currently understood to be realized in concrete cases, and back-​up responsibilities, which would come into effect if the routes to protection widely endorsed as already constituting R2P fail to prevent or mitigate mass atrocity.28 To follow in the style of R2P’s three-​pillars metaphor, one might continue the task of conceptually constructing an edifice that would allow the proposed moral imperative to be effectively met. There is no need to displace the pillars represented in the existing blueprint. Despite the problematic ambiguity when the international community is

174   Toni Erskine invoked—​an enduring problem when it comes to pillar two29—​the three pillars represent a sensible preliminary distribution of duties. Yet, on their own, they are not enough to underpin R2P with confidence and consistency. Supplementary responsibilities—​ both supporting and back-​up—​are required. Elaborating on the image already provided, one might envisage the former as fortifications to strengthen the existing pillars, and the latter as safeguards, perhaps in the form of additional columns of an extended edifice, constructed alongside the original to support the weight of R2P when, in particular cases, two of these pillars buckle and the current structure risks collapse. Both types of supplementary responsibility require agents of protection other than, and in addition to, those commonly invoked.

The Need for Supporting Responsibilities For the state to be able to discharge its responsibility to protect its own population from mass atrocity crimes, it must develop and maintain the capacities and also enjoy the conditions necessary to do so. The importance of these requisite capacities and conditions points clearly to supporting responsibilities on the part of other agents. Notably, this notion of a supporting responsibility is acknowledged in pillar two in ‘the commitment of the international community to assist States in meeting [their] obligations’.30 Yet, in anticipation of cases in which host states fail to discharge their primary responsibility to protect, the idea of R2P as a moral imperative also demands supporting responsibilities to foster the capacities of the designated secondary moral agent of protection and to ensure that it experiences the conditions necessary to fulfil this role. These might include responsibilities to bolster the deliberative capacity of the UN, for example, by strengthening and integrating existing mechanisms so that information more effectively flows between different parts of the organization or, more radically, by abolishing the veto provision in the Security Council in the context of responding to mass atrocity crimes.31 Additional supporting responsibilities would ensure that the UN can implement decisions and might take the form of Member States’ timely provision of resources so that resolutions can be acted upon promptly and effectively, or even the realization of an effective standing UN military force.

The Need for Back-​up Responsibilities In the medium-​to-​long term, recognizing supporting responsibilities for institutional design, capacity-​building, and institutional and system-​level reform will make it more likely that those moral agents of protection currently designated under R2P—​namely, host states and the UN—​will be able to perform their assigned roles. Yet, in cases in which vulnerable populations are left without the protection of either agent in the face of egregious human rights abuses, an immediate solution is necessary. Back-​up responsibilities must also be considered. Significantly, such responsibilities, although neglected, are a logical extension of the understanding of R2P as a moral imperative. This point can be demonstrated by turning to a description of distributing the duty to protect that resonates with prominent articulations of R2P.

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R2P’s Implicit ‘Assigned Responsibility Model’ R2P is most frequently described and defended from a moral cosmopolitan position or, in other words, from a position that maintains the equal moral standing of all human beings. It is from this position that R2P champions a general duty to protect populations, wherever they are located in regard to particular political borders, from egregious human rights abuses. The most compelling interpretation of R2P that is able to account for both this moral cosmopolitan assumption and the (imperfect) proposals made for its implementation is one inspired by the ‘ “assigned responsibility” model’ of Robert Goodin (1988). In setting out this interpretation here, the concern is not with the source of the proposed moral responsibility to protect populations from mass atrocity.32 Rather, the aim is to provide the most coherent account of the nature of this widely-​endorsed commitment—​and, specifically, its loci of responsibility—​given both the way that it has been espoused and its proposed operationalization.

Allocating a General Duty to Particular Agents Goodin argues that so-​called special responsibilities, or those responsibilities that we ostensibly have to particular others, such as compatriots, ‘because they stand in some special relationship to us’ are ‘merely devices whereby the moral community’s general duties get assigned to particular agents’.33 He discusses neither R2P nor the specific problem of what should be done when a state is manifestly failing to discharge its responsibility to protect its own population from mass atrocity, non-​military responses have been exhausted, and the UN Security Council fails to authorize an armed response. Nevertheless, his model has implications for how we think about both. Indeed, Goodin’s account of states’ special responsibilities to protect their own citizens as derivative from the general duty ‘of everyone to everyone’ globally, his prescient appeal to ‘back-​up responsibilities’ when the state is unwilling or unable to provide this protection, and his description of a ‘residual general duty’ to protect necessarily persisting despite this delegation to particular agents, offer a powerful way of understanding R2P’s allocation of responsibilities.34 It is fairly straightforward to see how Goodin’s model can be applied to prominent articulations of R2P. According to such articulations, states are primary protectors of their own citizens; if any state is unwilling or unable to deliver this protection, the responsibility to protect is to be discharged by the UN (through the formally UN Security Council-​endorsed actions of its Member States). Drawing on Goodin, one can understand the first-​pillar move in terms of subdividing the general responsibility to protect amongst the states that make up the international community, and thereby as a pragmatic ‘administrative device’ for ensuring that everyone, in principle at least, has a

176   Toni Erskine designated protector. The third-​pillar move can then be seen as appointing the UN the default agent tasked with discharging ‘back-​up responsibilities [to protect]’ in recognition of the fallibility of the initial allocation given practical realities.35 A key point to be taken from Goodin’s model is that there is a distinction between those agents who are understood to bear a moral responsibility and the subset of agents who might be tasked with discharging it. This distinction is profoundly important to how we understand, and attempt to implement, R2P. Significantly, a closer look at core R2P documents demonstrates that this distinction is recognized, even if its implications are neglected. In the 2005 WSOD, it is ‘the international community, through the United Nations’ that ‘has the responsibility’.36 Even when the UN is designated as the body through which the responsibility to protect is to be discharged, the responsibility is understood to be borne by the international community as a whole. Of course, statements asserting that the responsibility to protect populations from mass atrocity is borne by the so-​called international community remain problematic. They gesture usefully towards the perceived universal nature of the duty, yet come up short in that they neglect to identify an entity that can coherently be considered a duty-​bearer. It is therefore significant that, in the context of pillar three, the 2009 elaboration of the articles endorsed at the 2005 World Summit not only maintains the earlier distinction between the bearer of moral responsibility and the agent tasked with discharging it, but also clarifies those agents that the label ‘international community’ is meant to represent: ‘Pillar three is the responsibility of the Member States . . .’37 More suggestively still, pillar two of the same document describes the responsibility of the international community ‘to draw on the cooperation of Member States, regional and subregional arrangements, civil society and the private sector, as well as . . . the United National System’, indicating that an even more diverse constituency of agents might be represented by the label.38 In this articulation of R2P, it is clear that the duty to protect is understood to be borne by all states that constitute the international community, or even—​plausibly and more provocatively—​by all agents within the international community. Either understanding makes sense in a way that assertions of the international community as the bearer of responsibility do not. Moreover, such interpretations fit extremely well with the logic underlying Goodin’s ‘assigned responsibility model’.

Reallocating the Responsibility to Protect (Again) According to an ‘assigned responsibility’ reading, pillars one and three of the 2009 proposal to implement R2P are best understood as performing the challenging task of distributing the general duty to protect populations from mass atrocity to particular agents so that they can be effectively discharged. An important part of this interpretation of R2P is that the duty to protect is not temporarily transferred from the host state to the international community in moments of acute humanitarian crisis. Rather, the general

Agents of Protection and Responsibilities to Protect    177 duty to protect is, from the outset, borne by all members of the international community, and simply remains there when the primary agent tasked with discharging it—​the host state—​fails to do so. This ‘residual responsibility’ is then reallocated through an alternative ‘administrative device’ to a secondary delegated agent: the UN.39 The crucial catch here is simply that the general duty does not simply disappear if this secondary delegated agent also fails to discharge it. The duty is still borne by all agents. And, it must therefore be reallocated (again) to the agent or agents that can most effectively discharge it after the two that were, quite sensibly, designated the primary and secondary moral agents of protection. As Goodin maintains in the context of his own argument, ‘[s]‌hould the appointed individuals prove incompetent, then of course it is perfectly proper for us to retract their commissions and appoint others in their place. If responsibility is allocated merely on the bases here suggested, then its reallocation is always a live issue.’40 This account of R2P, which sees the state as the primary delegated agent tasked with discharging the responsibility to protect, and the UN as the secondary delegated agent to which the residual responsibility devolves if a host state defaults, maps effortlessly onto the conception of roles and responsibilities that is already widely endorsed and defended. Indeed, this ‘assigned responsibility’ reading of R2P neither challenges R2P’s existing ordinal designation of agents of protection, nor suggests a new one. What it does, however, is to explain that any particular designation is necessarily a manifestation of the general duty to protect, borne by all agents within the international community. In addition to thereby contributing to current R2P narratives by highlighting the clarifying notions of delegated moral agents of protection and a residual general responsibility to protect that persists despite this practical division of labour, such a reading has important action-​guiding implications. This reading’s commitment to every member of the international community bearing (and retaining) the duty to protect lends further weight to the argument that realizing R2P must entail both a range of moral agents of protection and recognition of hitherto neglected supporting responsibilities to protect. All members of the international community—​individual human and institutional agents—​have a responsibility to see that R2P is realized.41 Moreover, and perhaps most controversially, this ‘assigned responsibility’ account of R2P illustrates that if protecting populations from mass atrocity is, as widely asserted, a moral imperative, and if this burden is borne by all agents within the international community, then such a duty does not simply expire when those tasked with discharging it fail to do so. When the UN defaults in discharging its delegated moral responsibility to protect, its ‘commission’ must be ‘retracted’ (to return to Goodin’s language). In this context, retraction entails negating any morally defensible claim that the UN might have to exclusive legitimacy in authorizing military intervention on humanitarian grounds. On this final point, the ‘assigned responsibility’ reading invokes R2P’s own underlying logic in order to highlight the need for the members of the international community to identify a tertiary moral agent of protection and endorse further back-​up responsibilities to protect.

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Discharging the Residual Responsibility to Protect Identifying which agent should discharge the residual responsibility when the UN fails, and somehow ranking primary, secondary, and tertiary delegated agents of protection, would require what Goodin describes in passing as a ‘responsibility principle’, or way of selecting the most appropriate agent to take on the task of discharging a general duty.42 It is not the purpose of this chapter (or, indeed, Goodin’s own argument) to defend, or adjudicate between, principles for distributing responsibilities. This is done ably elsewhere.43 The concern here is, rather, with what might follow from the prescription distilled from the underlying logic of R2P as a moral imperative: that the residual responsibility to protect be reallocated until it is discharged.

Tertiary Moral Agents of Protection Which moral agents of protection could discharge the residual responsibility to protect when the UN fails to do so? The answer depends on the means required to remedy the secondary agent’s default. Back-​up responsibilities are triggered when the UN fails to employ either non-​violent or, when necessary, coercive means of protecting populations from mass atrocity. All moral agents of protection have the capacity to respond in some way to egregious human rights violations as tertiary agents (whether by applying diplomatic pressure through dialogue and persuasion or imposing targeted economic sanctions). However, there can come a point when non-​violent avenues have been exhausted, the victimized population remains in grave danger, and the sort of full-​scale military intervention that is beyond the scope of most moral agents of protection is reasonably seen as a last, necessary resort. As Bellamy has noted, ‘the “reaction” component of the R2P involves much more than the non-​consensual use of force’, yet ‘there are some things which only the application of military force can do—​such as to rescue from genocide an endangered population’.44 Those agents to which the back-​up responsibilities to protect through coercive means might reasonably devolve if the UN fails to act would seem restricted to certain states, NATO, and, possibly, some regional organization such as the EU and the AU.45 However, even frequently-​invoked ‘agents-​of-​last-​resort’, such as a few powerful states and NATO, would face obstacles in the contexts of some crises. Possessing the power and resources to engage in coercive action is not the same thing as having the capacity effectively to protect a population at risk. The ability to understand the local culture and political situation, and generate trust amongst those to be rescued, are also necessary and will mean that even an obvious ‘agent of last resort’ does not, in many cases, have the capacity to discharge the duty to protect as a discrete agent. Furthermore, the perception that unilateral action is less legitimate than multilateral action might provide an additional external normative constraint (in addition to that arising from the perceived illegitimacy of acting without UN Security Council authorization), which would further discourage such agents from responding on their own.46 Regional organizations might fare better when it comes to winning the trust of the populations to be rescued, and

Agents of Protection and Responsibilities to Protect    179 are less likely objects of external criticism for engaging in coercive intervention without UN Security Council authorization; however, such organizations generally lack the resources, and institutional design, to engage in large-​scale intervention. Given that we cannot coherently expect a moral agent to discharge a duty if it is unable to perform the requisite actions, we risk reaching an impasse when the UN, R2P’s sole designated agent of back-​up protection, fails to act. Even when many agents within the international community can do something in the face of crises, there are extreme cases when the severity of the situation and the limited capacities or external constraints faced by the candidates for tertiary moral agent of protection together mean that discharging the responsibility to protect is beyond the scope of each acting independently.

Another Tertiary Option: Moral Agents of Protection in Concert One way of addressing this apparent impasse is to acknowledge the normative significance of the potential for moral agents to act in concert. There is a rich literature on what is variously referred to as ‘joint action’, ‘shared activity’, ‘collective action’, and ‘shared agency’.47 A defining feature of this phenomenon is an outcome or effect that could not have resulted from the mere summation of individual acts. Although the philosophers who study joint action tend to focus on individual human agents engaged in small-​scale activities, the account of institutional moral agency offered in the second section of this chapter makes it possible to apply the insights gleaned from this body of work to institutional moral agents of protection that have the opportunity to engage in informal collective endeavours. Simply put, agents who come together to work towards a shared goal are able to achieve things by cooperating and coordinating their efforts that they would not be able to achieve independently. This potential for enhanced capacities suggests that individual agents should come together to form an ad hoc group in the absence of a viable alternative and when they each bear a moral responsibility that could not otherwise be discharged. In other words, with the potential for joint action in such cases comes shared responsibility, or responsibility that is necessarily distributive amongst the individual members of a collectivity for outcomes that can only be achieved when they act in concert.48 This argument provides purchase in addressing the seemingly intractable case at hand in which the gravity and imminence of a crisis is understood to demand a response, no moral agent of protection is able to act effectively on its own, and it would be impossible to establish or reform such an institutional agent in the time needed to mitigate disaster. The understanding of shared responsibility in the context of joint action reveals a host of agents that can contingently discharge the residual moral responsibility to protect populations facing acute, conscience-​shocking crises.49 Moreover, it allows—​and relies upon—​participants in the joint action making very different contributions. In the context of coercive interventions, not all contributions need to be military in nature. This understanding thereby admits into the category of potential tertiary agent of protection for such cases those that would not be able to discharge the responsibility to protect acting alone. It also avoids both over-​burdening and over-​estimating erstwhile ‘agents of

180   Toni Erskine last resort’ by sharing costs and burdens and pooling a variety of capacities. In sum, it illustrates one possible set of back-​up responsibilities to be triggered if the UN defaults on its delegated responsibility to protect and gestures towards a resolution to the problem of which body could then discharge the residual responsibility in the most extreme cases: moral agents of protection in concert. A prominent example of an association of institutional agents acting in concert is the so-​called ‘coalition of the willing’. A coalition of the willing is a self-​selected constellation of states and sometimes intergovernmental and non-​state actors that come together to respond to a specific crisis, and, in responding, act outside the control of any formal, overarching organization to which they might already belong.50 Such an ad hoc association acting without UN Security Council authorization, or what might be called a vigilante coalition of the willing,51 constitutes a controversial and imperfect, but sometimes necessary, tertiary means of discharging the responsibility to protect when both a host state and the UN fail to act in the face of mass atrocity.52 Guidelines would need to be established regarding when back-​up responsibilities to protect could devolve to such tertiary moral agents of protection in concert, and an important question arises as to which institutional agents should come together in particular cases to form and act as part of such coalitions.53 Moreover, the informal nature of such coalitions carries drawbacks, including less sophisticated capacities for coordination between constituents’ roles than in optimally-​operating formal organizations, with implications for command-​and-​control functions, for example.54 Yet, if R2P represents a moral imperative, potential members of a vigilante coalition of the willing—​who are each already bearers of the duty to protect—​can reasonably be expected jointly to assume the back-​up responsibilities that appeared impossible to assign in the context of the apparent impasse referred to earlier. Indeed, in such circumstances, what is commonly known as a ‘coalition of the willing’ is more aptly labelled a coalition of the obligated.55

Conclusion: Reinforcing R2P R2P embraced as a moral responsibility invites careful consideration of how it can be discharged in practice. Existing principles that outline the roles and responsibilities of host states and the UN in carefully-​negotiated and widely-​endorsed accounts of R2P are a laudable achievement. Yet, it is necessary to recognize supplementary responsibilities to protect, borne by a range of moral agents of protection within the international community, which go beyond what is explicitly articulated in these principles. Supporting responsibilities need to be acknowledged in order to achieve already-​accepted principles of protection, and back-​up responsibilities must come into play when our accepted plans and strategies fail. Both are necessary features of any convincing claim that R2P embodies a moral imperative. Together they serve to ‘reinforce’ R2P in two common senses of the term: by fortifying the existing framework and by providing reserves.

Agents of Protection and Responsibilities to Protect    181 Significantly, these proposals are bolstered by an account of R2P’s loci of responsibility that is inspired by Goodin’s ‘assigned responsibility’ model, and revealed in prominent narratives of R2P’s moral justification, familiar prescriptions for its practical operationalization, and the attempt to reconcile them. There are a number of significant implications of the ‘assigned responsibility’ account of R2P. First, it suggests that, if there is a moral imperative to protect vulnerable populations from mass atrocity, a tertiary agent capable of discharging this general duty must be identified for urgent cases in which the primary and secondary delegated moral agents of protection are unwilling or unable to act. This applies both to cases in which pacific means are sufficient and those in which coercive means are deemed necessary. This tertiary agent would not usurp the important roles of the two prior agents of protection. Indeed, there is no need to challenge the existing ordinal designation, valuably supported by international consensus—​even though any justification of the UN as the secondary delegated agent of protection must be largely aspirational—​as long as such a tertiary agent is recognized and readied. Its role in discharging the responsibility to protect would be transient, and, as only the perceived third-​best option for securing the protection of the population in question, it would likely fill it imperfectly. Yet it would provide a possible way of discharging back-​up responsibilities to protect in cases when the only other option is inaction, and when inaction would contradict the claim that R2P is a moral imperative. A second implication of the ‘assigned responsibility’ account is that even when the task of discharging the responsibility to protect remains further up the ordinal scale (with host states or the UN according to the presently-​agreed ranking), every member of the international community—​whether institutional or individual human agent of protection—​is acknowledged to have a supporting responsibility to see that it is realized. Finally, this account of R2P highlights the importance of yet another responsibility of every agent within the international community, but one that goes well beyond the pillars of R2P as currently conceived: to consider, in advance, how we can most effectively organize ourselves so that the proposed moral responsibility to protect is discharged when the primary and second agents fail to act. Alongside the ongoing supporting responsibilities both to create an environment in which such crises are avoided, and to build and bolster primary and secondary agents of protection with the will, resources, and procedures in place to act, it is necessary to discuss and debate when, and to which institutional bodies, back-​up responsibilities should devolve. This might involve reconsidering the roles and building the capacities of regional organizations, or contemplating the contingent legitimacy of ‘coalitions of the obligated’ acting without UN Security Council authorization in extreme emergencies. Each of these points is significant in realizing R2P and evaluating the constraint attached to its current political consensus: namely, that certain responses to mass atrocity can only be discharged through the UN, despite its limitations. If this stipulation is deemed to be inviolable, then it would be prudent to rethink R2P’s portrayal as a moral imperative.56

182   Toni Erskine

Notes 1. Ban Ki-​moon 2008, emphasis added. 2. See, for example, Luck 2010, p. 363; Luck 2012, p. 40; Welsh 2012; Pattison 2013, pp. 567–​76. 3. The final, unanimously-​endorsed version of the WSOD asserts a responsibility to use peaceful means, but only a preparedness to take non-​consensual coercive action on a ‘case-​ by-​case’ basis. Significantly, however, Article 139 of the WSOD is widely interpreted to entail a moral responsibility to react that includes, when necessary, coercive intervention. Indeed, Ban Ki-​moon’s 2009 report, which explicitly endeavours to remain consistent with the World Summit conclusions (2009, p. 4), uses the stronger language of responsibility to preface both pacific and coercive remedial measures and omits the ‘case-​by-​case’ qualification (UNGA 2009, p. 9; see also p. 25). 4. I am using ‘moral responsibilities’, ‘duties’, and ‘obligations’ interchangeably to indicate actions or forbearances that one is deemed bound to perform or observe. 5. UN 2005, Article 139. 6. Bellamy 2008, p. 624. 7. ICISS 2001. 8. UNGA 2009, pp. 8–​9. 9. Erskine 2003, p. 8. 10. For this criticism, see O’Neill 2001, pp. 183–​6. 11. Ban Ki-​moon 2012; Annan 2004. These two examples are cited in Erskine 2014. 12. ICISS 2001, p. 17; see also pp. 69, 74, 75. 13. O’Neill 1986, p. 51; Erskine 2001, pp. 78–​82. 14. French 1984; O’Neill 1986; Erskine 2001; Pettit 2007; List and Pettit 2011. 15. Erskine inter alia 2001, 2004, 2008, 2014. 16. O’Neill 2001. 17. Erskine 2001, p. 79. 18. Walzer 1995, p. 64. See also Erskine 2001, p. 84. 19. I suggest elsewhere (Erskine 2004, p. 41; Erskine 2015, p. 270 n. 21) that IGOs tend to be precarious institutional moral agents because they balance supranational structures and processes with a commitment to member states’ sovereignty in ways that can impede their capacity for purposive action at the corporate level. 20. Erskine 2004, pp. 26–​7. 21. Kolstad 2009; Karp 2014. 22. Erskine 2004, p. 24 n. 7. 23. UNGA 2009, pp. 23, 26. 24. Erskine 2001, pp. 73, 84. 25. Bellamy 2008, p. 624. Note that there is no comparable clarification in Article 138. 26. UN 2005, Article 139, emphasis mine. See note 3 for an account of how the language of responsibility in Article 139, although diluted, is nevertheless widely understood to apply in relation to coercive force. 27. The ICISS account of R2P also defends this position, despite its willingness to countenance alternatives (2001, pp. 49, 53–​5). 28. I am taking the phrase ‘back-​up responsibilities’ from Goodin 1988, as discussed in the third section of this chapter. 29. UN 2005, Article 138; UNGA 2009, p. 9.

Agents of Protection and Responsibilities to Protect    183 30. UNGA 2009, p. 9. 31. The latter has been frequently advocated. See, for example, ICISS 2001, p. 5. 32. Others have usefully addressed this question of how the moral responsibility is generated. See, for example, Tan 2006; Welsh 2012. 33. Goodin 1988, pp. 663, 683. 34. Goodin 1988, pp. 683, 681 n. 47, 683 n. 52. 35. The phrases ‘administrative device’ and ‘back-​up responsibilities’ are taken from Goodin (1988, pp.  685, 681 n.  47). Notably, ICISS 2001 advocates a strikingly similar ‘fall-​back responsibility’ when a host state is unwilling or unable to discharge its primary responsibility to protect (2001, p. 17). 36. UN 2005, Article 139. 37. UNGA 2009, p. 9. 38. UNGA 2009, p. 9. 39. The important concept of a ‘residual’ general responsibility to protect is not only defended by Goodin (1988, p. 683 n. 52), but is also identified in the ICISS document as lying with ‘the broader community of states’ (2001, p. 17). 40. Goodin 1988, p. 680. 41. Compare with Erskine, 2004, p. 42; Tan 2006, p. 104; Glanville 2011, p. 501. 42. Goodin 1988, p. 679. 43. See, for example, Miller 2001 and Kolstad 2009, pp.  573–​4, who describes an ‘ordinal arrangement of duty-​bearers’, including ‘tertiary’ agents. In the context of R2P, see Tan 2006, pp. 96–​101; Pattison 2010, pp. 199–​212; Welsh 2012, pp. 107–​8. 44. Bellamy 2009, pp. 164–​5; see also UNGA 2009, p. 25. 45. Each is addressed by Pattison 2010, pp. 199–​212. 46. I am using ‘unilateral action’ literally here, and not to mean lacking UN Security Council authorization. 47. Inter alia Held 1970; May 1987, 1992; Gilbert 1989; Searle 1990; Kutz 2000; Bratman 2014. 48. Erskine 2014, p. 134. 49. These individual agents are only contingently capable of discharging this residual responsibility because both the necessary initial move of collectivizing and the subsequent joint endeavour depend on the cooperation of other agents, and are thereby beyond the ultimate control of each. 50. Erskine 2014, pp. 120–​3. 51. This label is inspired by Brown 2003, pp. 60–​1, who draws an analogy between coalitions of the willing and vigilante bands. 52. See, for example, Rice and Loomis 2007, pp. 91–​2, who propose a ‘coalition of the compassionate’. Buchanan and Keohane 2011 offer an intriguing alternative in the form of ‘pre-​ commitment regimes’. 53. The latter question is addressed in Erskine 2015, pp. 257–60. 54. For advantages and disadvantages vis-​à-​vis formal organizations, see Erskine 2014, p. 137. 55. I  am grateful to Bob Goodin and Dick Price for emphasizing the need to make this explicit. 56. I am very grateful to Deane-​Peter Baker, Peter Balint, Alex Bellamy, Anthony Burke, Ned Dobos, Tim Dunne, Luke Glanville, Coralie Hindawi, Rhiannon Neilsen, and James Pattison for incisive written comments on earlier drafts of this chapter, and to Bob Goodin and Dick Price for their valuable engagement with the third section.

184   Toni Erskine

References Annan, Kofi (2004). ‘Rwanda Genocide “Must Leave us Always with a Sense of Bitter Regret and Abiding Sorrow”, says Secretary-​General to the New  York Memorial Conference’, United Nations Press Release, SG/​SM/​9223 AFR/​870 HQ/​631. Ban Ki-​moon (2008). ‘Secretary-​General’s Message on the Opening of the Global Centre for the Responsibility to Protect’. Paper delivered by Vijay Nambiar, Chef de Cabinet to the Secretary-​General, New York, 14 February. . Ban Ki-​Moon (2012). ‘International Community has Moral Responsibility to End Violence in Syria: UN Chief ’, English.news.cn. (accessed 30 April 2013). Bellamy, Alex (2008). ‘The Responsibility to Protect and the Problem of Military Intervention’, International Affairs 84(4): 615–​39. Bellamy, Alex (2009). Responsibility to Protect:  The Global Effort to End Mass Atrocities (Cambridge: Polity Press). Bratman, Michael (2014). Shared Agency: A Planning Theory of Acting Together (Oxford: Oxford University Press). Brown, Chris (2003). ‘Moral Agency and International Society:  Reflections on Norms, the UN, the Gulf War, and the Kosovo Campaign’, in Toni Erskine (ed.), Can Institutions Have Responsibilities? Collective Moral Agency and International Relations (Basingstoke and New York: Palgrave Macmillan), pp. 51–​65. Buchanan, Allen and Robert O. Keohane (2011). ‘Precommitment Regimes for Intervention: Supplementing the Security Council’, Ethics & International Affairs 25(1): 41–​63. Erskine, Toni (2001). ‘Assigning Responsibilities to Institutional Moral Agents: The Case of States and Quasi-​States’, Ethics & International Affairs 15(2): 67–​85. Erskine, Toni (2003). ‘Making Sense of “Responsibility” in International Relations:  Key Questions and Concepts’, in Toni Erskine (ed.), Can Institutions Have Responsibilities? Collective Moral Agency and International Relations (Basingstoke and New York: Palgrave Macmillan) pp. 1–​17. Erskine, Toni (2004). ‘ “Blood on the UN’s Hands”? Assigning Responsibilities and Apportioning Blame to an Intergovernmental Organisation’, Global Society 18(1): 21–​42. Erskine, Toni (2008). ‘Locating Responsibility: The Problem of Moral Agency in International Relations’, in Christian Reus-​Smit and Duncan Snidal (eds.), The Oxford Handbook of International Relations (Oxford: Oxford University Press), pp. 699–​707. Erskine, Toni (2014). ‘ “Coalitions of the Willing” and Responsibilities to Protect:  Informal Associations, Enhanced Capacities and Shared Moral Burdens’, Ethics & International Affairs 28(1): 115–​45. Erskine, Toni (2015). ‘Coalitions of the Willing and the Shared Responsibility to Protect’, in André Nollkaemper and Dov Jacobs (eds.), Distribution of Responsibilities in International Law (Cambridge: Cambridge University Press), pp. 227–​64. French, Peter (1984). Collective and Corporate Responsibility (New York: Columbia University Press). Gilbert, Margaret (1989). On Social Facts (London: Routledge). Glanville, Luke (2011). ‘On the Meaning of “Responsibility” in the “Responsibility to Protect”’, Griffith Law Review 20: 482–​504. Goodin, Robert (1988). ‘What is So Special about Our Fellow Countrymen?’, Ethics 98(4): 663–​86.

Agents of Protection and Responsibilities to Protect    185 Held, Virginia (1970). ‘Can a Random Collection of Individuals be Morally Responsible?’, Journal of Philosophy 67(14): 471–​81. International Commission on Intervention and State Sovereignty (ICISS) (2001). The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre). Karp, David (2014). Responsibility for Human Rights: Transnational Corporations in Imperfect States (Cambridge: Cambridge University Press). Kolstad, Ivar (2009). ‘Human Rights and Assigned Duties:  Implications for Corporations’, Human Rights Review 10(4): 569–​82. Kutz, Christopher (2000). ‘Acting Together’, Philosophy and Phenomenological Research 61(1): 1–​31. List, Christian and Philip Pettit (2011). Group Agency:  The Possibility, Design, and Status of Corporate Agents (Oxford: Oxford University Press). Luck, Edward (2010). ‘The Responsibility to Protect: Growing Pains or Early Promise?’, Ethics & International Affairs 24(4): 349–​65. Luck, Edward (2012). ‘The Responsibility to Protect:  The Journey’, in Julia Hoffman and André Nollkaemper (eds.), Responsibility to Protect:  From Principle to Practice (Amsterdam: Amsterdam University Press), pp. 39–​46. May, Larry (1987). The Morality of Groups: Collective Responsibility, Group-​Based Harm, and Corporate Rights (Notre Dame, IN: University of Notre Dame Press). May, Larry (1992). Sharing Responsibility (Chicago, IL and London: University of Chicago Press). Miller, David (2001). ‘Distributing Responsibilities’, Journal of Political Philosophy 9(4): 453–​7 1. O’Neill, Onora (1986). ‘Who Can Endeavour Peace?’, Canadian Journal of Philosophy 12(1): 41–​73. O’Neill, Onora (2001). ‘Agents of Justice’, Metaphilosophy 32(1–​2): 189–​95. Pattison, James (2010). Humanitarian Intervention and the Responsibility to Protect (Oxford: Oxford University Press). Pattison, James (2013). ‘Is There a Duty to Intervene? Intervention and the Responsibility to Protect’, Philosophy Compass 8(6): 570–​9. Pettit, Philip (2007). ‘Responsibility Incorporated’, Ethics 117(2): 171–​201. Rice, Susan E. and Andrew J. Loomis (2007). ‘The Evolution of Humanitarian Intervention and the Responsibility to Protect’, in Ivo H. Daalder (ed.), Beyond Preemption: Force and Legitimacy in a Changing World (Washington, DC: Brookings Institution), pp. 59–​95. Searle, John (1990). ‘Collective Intentions and Actions’, in P. Cohen, J. Morgan, and M. E. Pollack (eds.), Intentions in Communication (Cambridge, MA: Bradford Books, MIT Press), pp. 401–​16. Tan, Kok-​Char (2006). ‘The Duty to Protect’, in Terry Nardin and Melissa S. Williams (eds.), Humanitarian Intervention, NOMOS 47 (New York: New York University Press), pp. 84–​116. United Nations General Assembly (2005). World Summit Outcome Document, adopted by UN General Assembly Resolution A/​RES/​60/​1, 24 October. . United Nations General Assembly (2009). Implementing the Responsibility to Protect: Report of the Secretary-​General, A/​63/​677, 12 January. Walzer, Michael (1995). ‘The Politics of Rescue’, Social Research 62(1): 53–​66. Welsh, Jennifer (2012). ‘Who Should Act? Collective Responsibility and the Responsibility to Protect’, in W. Andy Knight and Frazer Egerton (eds.), The Routledge Handbook of the Responsibility to Protect (London and New York: Routledge), pp. 103–​14.

Chapter 11

R2P a nd Internationa l  L aw A Paradigm Shift? Sir Nigel Rodley

The approach of the United Nations to violations of human rights may be divided into three phases. The first, lasting until the mid-​1960s, was characterized by a general reluctance to subject a state’s internal activities to external scrutiny. The second, starting in the late 1960s but not consolidating until the mid-​1980s, acknowledged that at least serious human rights situations could be discussed in UN forums, be subjected to fact-​ finding processes, and be made the object of recommendations. The third phase is that reflected in the so-​called responsibility to protect (R2P), according to which coercion up to and including the use of armed force to protect civilian populations could be authorized by the Security Council. The move from the first phase to the second can plausibly be considered a paradigm shift. It may be that the same is the case for the move to the third phase. After a review of the transition from the first to the second phases and a brief consideration of the so-​called doctrine of humanitarian intervention, this chapter will then examine the extent to which R2P, the third phase, creates or codifies new law.

From Neglect to Concern Despite the almost vanishingly rare General Assembly concern for human rights issues, outside the special cases of South Africa and Rhodesia, the UN’s basic approach in its first two decades was to ignore cases or situations of human rights violations in Member States. Certainly that was the posture of the organization’s specialist human rights body, the Commission on Human Rights (replaced in 2006 by the Human Rights Council). From the beginning, the Commission received complaints of violations and one of its

R2P and International Law: A Paradigm Shift?    187 first moves was to declare itself incompetent to deal with such complaints, a stance confirmed by its first body, the Economic and Social Council (ECOSOC).1 The assumption was that states could only be subjected to scrutiny of their compliance with human rights standards if they accepted, by means of treaty obligation, such scrutiny by bodies established under the treaty in question.2 A slight step forward occurred in 1959 when ECOSOC, at the instigation of the Commission, adopted a resolution confirming the traditional lack of competence, but asking the Secretary-​General to summarize monthly the contents of any such complaints and circulate these to members of the Commission (states) in respect of discrimination and minorities’ issues, its Sub-​Commission on Prevention of Discrimination and Protection of Minorities (individual experts) together with any replies received.3 While these monthly summaries were confidential and not discussed, they were considered by insiders as a means that sometimes could yield results by states wishing to give a good impression to the Commission and Sub-​Commission members.4 A more substantial development occurred in 1967 when, again prompted by the Commission, ECOSOC adopted resolution 1235 (XLII) by which it authorized the Commission and Sub-​Commission to study consistent patterns of human rights violations in Member States and to investigate gross violations of human rights. When non-​ governmental organizations (NGOs) started submitting such situations, the Commission was uncomfortable with the results and proposed that ECOSOC establish a special confidential procedure for dealing with complaints from non-​official sources. ECOSOC complied by adopting resolution 1503 (XLVIII) (1970). This provided for the Secretary-​General’s monthly summaries of ‘communications’ to be examined by the Sub-​Commission which would forward to the Commission situations ‘appearing to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms’. Such situations would then be subject to discussion in the Commission, albeit in confidential meetings. Meanwhile, after the adoption of ECOSOC resolution 1235, nothing now prevented Sub-​Commission members or Commission members of their own motion from raising, at least extensive, human rights problems in particular states. At first, attention was confined to southern African countries (lasting until the 1974 decolonization of Portuguese territories, the emergence of Zimbabwe and Namibia, and the eventual end of apartheid) and the post-​1967 occupied territories of the Middle East. It took until 1975, when friendless Chile was made the subject, not only of discussion, but of investigation that other states were to come under the spotlight. This was to be the beginning of such measures in a number of countries. However, some grave situations deserving attention did not get it, if the responsible states had sufficient friends to avoid negative votes in the Commission. This led to the creation of the so-​called thematic special procedures, starting with the Working Group on Enforced or Involuntary Disappearances (1980) (Kramer and Weissbrodt 1981). The establishment of the Group was motivated by the perceived need to deal with a serious phenomenon identified with Argentina under military dictatorship, when there was not the political will publicly to address, much less investigate, the situation there. Followed by the creation of mandates (to be held by

188   Sir Nigel Rodley special rapporteurs) on summary and arbitrary executions (1982) and on torture (1985), these mandates would consider cases in all jurisdictions and even visit states that would invite them. Their number slowly expanded, first under the Commission, more recently under its successor Human Rights Council, to the present 41 thematic mandates. The legal significance of all this is that, either human rights are no longer matters essentially within the domestic jurisdiction of states within the meaning of Charter Article 2(7), or that discussion and investigation of human rights situations or even individual cases,5 may no longer be considered as improper intervention within the meaning of that Article.

From Concern to Enforcement? Most of the UN’s activities described in the previous section were carried out by the General Assembly or bodies directly or indirectly subordinate to it. This was appropriate since the General Assembly is empowered to discuss and make recommendations in respect of all matters falling within the mandate of the UN, as laid down in the Charter of the UN, notably its purposes (Article 1) and principles (Article 2). For the Security Council even to consider and make recommendations in respect of a situation, it must represent a danger to international peace and security or at least risk friction capable of giving rise to a dispute engendering international peace and security (‘the threat of a threat’) (Article 34). This inevitably posed the question as to whether a human rights situation could amount to or lead to a threat to or breach of international peace and security. After all, typically most human rights situations take place within the frontiers of any particular state. Of course, sometimes there may be cross-​border spillover, for example, in the form of major refugee movements or in the way of ethnic tensions when the victims of the violations are of an ethic minority that may have sympathetic kindred populations in a neighbouring state. Any reluctance in the Security Council to consider human rights situations might have been induced, not so much by a reluctance to discuss in one UN forum (the Security Council) what could have been and was discussed in others, as by a concern to avoid a slippery slope towards being pressured into engaging in coercive activity under Chapter VII. Only the Security Council, acting under Chapter VII, can take or authorize coercive activities. This would then raise the momentous issue as to when armed force could be deployed on the territory of a state without the authorization of that state.

‘Humanitarian Intervention’ While other chapters of this volume consider the matter in greater depth, the present chapter cannot ignore the background of relating to the international law governing the

R2P and International Law: A Paradigm Shift?    189 use of force and the so-​called doctrine of humanitarian intervention. Among scholars, if not among governments, there was a controversy as to whether states could intervene with armed force to protect the population of another state. Evidently, if individual states could do so, then there could hardly be any objection to the UN doing so through its Security Council. For those who argued that there was a right of humanitarian intervention (there was no suggestion of an obligation), the doctrine was one that had existed before the advent of the UN and had survived its creation.6 Thus in the nineteenth century, the Christian powers had intervened in the Ottoman Empire to protect Christian populations perceived to be oppressed by their rulers.7 For the scholars arguing for the survival of that possibility even in the face of the Charter Article 2(4) provision against the use of force, the actual wording of this provision could be construed favourably to their case.8 Accordingly, the force that would be used for humanitarian purposes would not be directed against ‘the territorial integrity or political independence’ of the target state; it would merely be a temporary measure aimed at rescuing the population in question, not at affecting the political regime of the state much less seizing its territory. Moreover, far from being against the purposes of the UN, it would be in furtherance of the purpose laid down in Article 1 of ‘promoting and encouraging respect for human rights and for fundamental freedoms for all’. Surely the UN was not set up for itself and its members to stand by while more genocides and other crimes against humanity, of the sort that gave birth to the UN, were perpetrated without challenge or resistance. The counter-​ argument, defended by most states, the principal framers and addressees of international law, and by the majority of scholars, was that Article 2, paragraph 4, of the Charter indeed ruled out any use of armed force other than by way of the exercise of ‘the inherent rights of individual and collective self-​defence’, as preserved in Article 51 of the Charter.9 According to this approach, which reflected the preparatory work of the Charter, the spelling-​out of ‘territorial integrity and political independence’ in Article 2(4) was to articulate the components of sovereignty. Far from being restrictive, these words were intended to be comprehensive. The only limitation was in Article 51 and the right to self-​defence it protects and that right could only be exercised if ‘an armed attack occurs against a Member of the United Nations’. Clearly the plight of a population, however oppressed by the government of its own state, could not constitute the reason for an armed attack against the intervening state or states. The latter view—​a right to humanitarian intervention does not exist—​remains the predominant view, even after the NATO intervention in Kosovo. This action had the United Kingdom defending its involvement on the basis of a (previously undiscovered) doctrine of necessity.10 Some scholars were prepared to see the action as potentially heralding, de lege ferenda, a norm admitting humanitarian intervention.11 No significant event has since happened to refute or confirm this. However, the very reluctance of the text of the World Summit Outcome Document to contemplate it, even when there is a veto-​blocked Security Council (discussed in the next section) certainly fails to advance

190   Sir Nigel Rodley the case. Moreover, even the Secretary-General’s High-​Level Panel which paved the way for R2P (see the following section) clearly reaffirmed the traditional approach: The Charter of the United Nations, in Article 2.4, expressly prohibits Member States from using or threatening force against each other, allowing only two exceptions:  self-​defence under Article 51, and military measures authorized by the Security Council under Chapter VII (and by extension for regional organizations under Chapter VIII) in response to ‘any threat to the peace, breach of the peace or act of aggression’.12

Of course, those, including the present writer, who continue to sustain the view that unauthorized humanitarian intervention remains unlawful, also acknowledge that a genuine humanitarian rescue should not necessarily be treated the same way as an abusive one. Thus, an operation that would otherwise be considered lawful if authorized by the UN Security Council (see the following section) would not necessarily attract the same legal consequences, such as the obligation of non-​recognition of the resulting situation.13 Mitigating circumstances might conduce to the international legal equivalent of an absolute discharge in domestic law.14

R2P and its ‘Three Pillars’ According to the present Secretary-​General, there are three pillars to R2P,15 the foundational text of which is contained in paragraphs 138 and 139 of the World Summit Outcome Document:16 138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability. 139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-​by-​case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic

R2P and International Law: A Paradigm Shift?    191 cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

The first pillar is that of the state itself. It is the entity that has the primary ‘responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement.’ In fact, this added nothing to paragraph 122, according to which emphasis was placed on ‘the responsibilities of all States, in conformity with the Charter, to respect human rights and fundamental freedoms for all, without distinction of any kind as to race, colour, sex, language or religion, political or other opinion, national or social origin, property, birth or other status’. The second pillar consists of international assistance and capacity-​building. These are reflected in the final sentences of paragraphs 138 and 139. Desirable as such measures may be—​prevention is always better than cure—​they raise no legal questions. They are measures of cooperation and can only be offered to, not imposed on, states; so no issues of sovereignty are engaged. It is the third pillar, ‘timely and decisive response’, that potentially poses significant legal dimensions. Here we have the key element contained in the text of paragraph 139. Even here, there are elements that are non-​coercive. These are the ‘diplomatic, humanitarian and other peaceful means’ to be engaged under Chapters VI and VIII of the Charter. The only legal issue arising out of Security Council action under Chapter VI is the very fact of the discussion rising to the level of Security Council concern, which implies that the situation may threaten or lead to friction that threatens international peace and security. This may explain why, already at this non-​coercive stage, the nature of the situation is limited to one characterized by genocide, war crimes, ethnic cleansing, and crimes against humanity. Apart from that, the Security Council has no more explicit powers under Chapter VI than has the General Assembly, whose authority to discuss and make recommendations about peaceful means of solving human rights issues in Member States is no longer contentious. As to the reference to Chapter VIII, here Article 52 of the Charter is evidently alluded to, as that acknowledges a role for regional agencies in achieving ‘pacific settlement of local disputes’. The main legally significant dimension arises ‘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’. Then comes the uncontested commitment ‘to take collective action . . . through the Security Council,

192   Sir Nigel Rodley in accordance with the Charter, including Chapter VII’.17 This is an unmistakable reference to enforcement action against the will of the state concerned. Here too, ‘relevant regional organizations’ may be involved, this time pursuant to Article 53 which foresees an enforcement role for such organizations, subject to Security Council authorization. Even though this places the focus clearly in the realm of coercion, it still does not automatically entail the use of potentially lethal armed force. First, under Article 41, measures not involving the use of armed force at all are contemplated, such as ‘complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication, and the severance of diplomatic relations’. It is only if measures of this sort ‘would be or have proved to be inadequate’, that the Council may then take action through the use of armed forces, under Article 42. The relationship of the various measures that may be taken by the Council will be returned to. At this point, the salient issue is the acknowledgement of the legitimacy of armed force, when authorized by the Security Council to protect a population from genocide, war crimes, ethnic cleansing, and crimes against humanity. This was a juridically normative breakthrough, as regards the legal legitimacy of the use of force by the UN. Only 13  years earlier the present writer had, reluctantly, concluded that ‘collective humanitarian intervention’ (that is, with Security Council authorization) may not be acceptable ‘in the absence of a threat to international peace and security manifested by palpable transborder consequences’.18 This seemed to be a conclusion flowing from the inability of the Council to invoke Chapter VII in its resolution 688 (1991) on humanitarian assistance to the oppressed Kurds of northern Iraq and the Council’s presumed reluctance expressly to authorize the enforcement of safe havens for the Kurds of northern Iraq.19 This was despite the fact that, up to that point, legal force had been used to drive Iraq out of Kuwait.20 Indeed, only a year before the World Summit, the High-​Level Panel that embraced the concept of R2P was only able to endorse ‘the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort’.21 A year later the norm was no longer ‘emerging’, it was acclaimed. Nor was it a ‘flash in the pan’, mere pious words from a body that could only recommend. In the following year the Security Council itself adopted resolution 1674 (2006). By that resolution the Council explicitly ‘[r]‌eaffirm[ed] the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes and crimes against humanity’ (paragraph 4). As will appear, there remain problems for the implementation of the norm, relating to proportionality, appropriateness, practicality, and political feasibility, but the norm itself has emerged and there can be no putting ‘the genie back in the bottle’. The next question to be addressed is the nature of the harms that R2P may be mobilized to prevent or repress.

R2P and International Law: A Paradigm Shift?    193

Violations Triggering R2P It is noteworthy that the term ‘human rights’ does not appear in the R2P paragraphs of the World Summit Outcome Document, albeit they appear in a chapter headed ‘Human Rights and the Rule of Law’ (chapter IV). It was earlier in that chapter that the previously noted acknowledgement of a responsibility to respect human rights had appeared. What was always clear was that the Security Council was never going to evolve into a general human rights enforcement mechanism. Its powers, particularly its powers to deploy or authorize the deployment of armed force, would always have to be reserved for the gravest human rights situations. Language such as ‘massive violations’ tended to be used to characterize the situations that could be deserving of an enforcement response.22 Thus, the International Commission on Intervention and State Sovereignty (ICISS), whose work in developing the concept of R2P was influential with the High-​Level Panel, affirmed that military intervention would be warranted only where there was ‘serious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind’: A. large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or B. large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.23

In fact, in its choice of harms, justifying Security Council action R2P, the World Summit was able to gain inspiration from the intersection of three areas of international law, notably, international criminal law (ICL), international humanitarian law (IHL), and international human rights law (IHRL), thanks to the adoption of the Rome Statue of the International Criminal Court (ICC) seven years earlier. Apart from the crime of aggression,24 all three categories of crime within the Court’s jurisdiction under Article 5 of its Statute involved substantial human rights elements together with a context of substantial scale.

Genocide Genocide as defined in Article 6, following the Genocide Convention,25 is a crime against groups as such, rather than individuals, the beneficiaries of human rights norms.26 However, the individual members of the group targeted for destruction are clearly victims or potential victims of various violations of human rights, including the right to life or the right not to be subjected to cruel, inhuman, or degrading treatment or punishment, together with the right not to be subject to discrimination on grounds of race or national or ethnic origin or of religion. As will be seen, genocide appears covered also by various crimes against humanity; indeed, it was as a crime against humanity that genocide was prosecuted in Nuremberg.

194   Sir Nigel Rodley

Crimes against Humanity The notion of crimes against humanity, as defined in the ICC Statute arguably covers the most basic civil and political rights, as long as the context in which the acts take place is one that reflects the element of scale. That is, they must be ‘committed as part of a widespread or systematic attack directed against any civilian population’ (Article 7(1)). So, ‘murder’ and ‘exterminations’ evidently fall within the right to life, constituting arbitrary deprivation of life.27 ‘Enslavement’ is clearly covered by the prohibition of slavery or servitude.28 ‘Deportation and forcible transfer of population’ are manifestly at odds with freedom of movement.29 ‘Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law’ must contemplate the right to liberty and security of person and the prohibition of arbitrary arrest or detention.30 ‘Torture’ is evidently torture as contained in the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment.31 The crime against humanity of ‘other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mind or physical health’ would likely be embraced by most of the prohibition of other ‘cruel, inhuman or degrading treatment or punishment’. So would ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity’ which could also be classified as torture or cruel, inhuman, or degrading treatment. Other human rights engaged by this crime include the prohibition of discrimination on grounds of sex and the prohibition of slavery and servitude. ‘Enforced disappearance’ is an extreme manifestation of arbitrary arrest and detention and typically engages the right not to be subjected to torture or similar ill-​treatment (including in respect of the affected family members), the right to life, and the right to be treated as a person before the law.32 Finally, ‘persecution’ will concern any of the rights already mentioned as it is only committed in connection with other crimes within the jurisdiction of the Court. Since the grounds of persecution are that it be directed against a group on political, racial, national, ethnic, cultural, religious, or gender grounds, it will then engage that broad range of non-​discrimination rights, to the extent that the core crime does not already engage them.33 The (obsolete) crime of apartheid was no doubt included for political reasons and, perhaps, because together with torture, it was the only human rights crime in respect of which a treaty provided for universal jurisdiction over perpetrators.

War Crimes It is not so straightforward to assign war crimes to human rights categories. For instance, any killing that would be a war crime under international humanitarian law might superficially seem like a potential violation of the right to life and any wording that would be a war crime could similarly appear assignable to the human right not to be subject to cruel, inhuman, or degrading treatment. Indeed, there is no doubt that any war crime can theoretically trigger R2P, though it probably would not be realistic unless

R2P and International Law: A Paradigm Shift?    195 it fell into the category that, under Article 8(1) of the Rome Statute, was ‘in particular . . . committed as part of a plan or policy or as part of a large-​scale commission of such crimes’. As already noted, the paradigm context for human rights violations is when an entity capable of violating a human right has the rights-​holder in its effective power or control. Here, the part of IHL coming closest to reproducing or at least analogizing that paradigm is that which protects persons ‘in the power’ of a party to the conflict. Indeed, these are the elements of IHL that the International Court of Justice has identified as the ‘fundamental general principles of humanitarian law’,34 as found in common Article 3 to the four Geneva Conventions of 12 August 1949. These are: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture. (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment. (iii) Taking of hostages. (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.35 The first two of these almost reproduce previously identified human rights norms. The prohibition of taking hostages presumably mirrors at least the right to liberty and security of person, as well as potentially the right to life. The final element evidently mirrors the right to a fair and equitable trial or ‘due process’. To the aforementioned war crimes the Rome Statute adds rape and other sexual crimes already defined as crimes against humanity, the human rights dimensions of which have been mentioned; ‘subjecting persons to physical mutilation or medical or scientific experimentation’ not justified by medical necessity, a recognized form of prohibited cruel or inhuman treatment;36 and ‘conscripting or enlisting of children under the age of fifteen years . . . or forcing them to engage in hostilities’, a prohibition reflected in and borrowed from Article 38 of the Convention on the Rights of the Child.37 Anomalously, there is at least one war crime in the Rome Statute that is effectively a crime against humanity, but is applicable as a war crime only in international armed conflicts, and is not explicitly listed as a war crime in armed conflicts not of an international character; that is ‘unlawful deportation or transfer or unlawful confinement’.38

Ethnic Cleansing It will have been noticed that ethnic cleansing is not found expressly in the Rome Statute. Its inclusion as one of the bases for R2P undoubtedly reflects the world community’s rejection of a phenomenon of recent memory that had occurred as part of the disintegration of the former Yugoslavia. As the federal or other autonomous component

196   Sir Nigel Rodley struggled to emerge as independent sovereign states, the majority populations took action to encourage or compel minority populations to leave including, but not only, by means of genocidal acts.39 The Muslim populations of parts of Bosnia and Kosovo were the most numerically substantial victims. This made the issue particularly sensitive to the large number of states whose populations share the same religion. In fact, it is generally agreed that the components of ethnic cleansing are already covered by existing crimes within the jurisdiction of the ICC. Thus, massacres of the kind that occurred in Srebrenica are both acts of genocide and the crimes against humanity of murder and extermination. Other manifestations of ethnic cleansing would, if not amounting to genocide, constitute such crimes against humanity as deportation or forcible transfer of population, persecution or ‘other inhuman acts’ and they would also, accordingly, fall within the previously identified comparable war crimes and, therefore, engage the previously identified human rights rules. At this point a further clarification of the differences between ICL, IHL, and IHRL needs to be made. ICL and that part of IHL (war crimes) falling within ICL targets individual perpetrators direct. It is individuals who are the perpetrators that come before international criminal tribunals; they are the persons who commit crimes under international law. This is an exception to the general rule, whereby states are the violators. As far as IHRL is concerned the general rule is also the conceptually appropriate rule. Human rights are paradigmatically those fundamental legal principles that states are required to comply with in their relations with those subject to their jurisdiction. Individuals are the rights-​holders; states are the duty-​bearers. It may be that IHRL requires states to prosecute and punish individuals, especially responsible state agents, who have, for example, inflicted certain kinds of harm that amount to deprivation of life or assault or physical or mental integrity protected by human rights norms,40 but those individuals have not necessarily committed a crime under international law as discussed previously. Particularly significantly, it may be that acts that violate ICL may not necessarily violate IHRL. For the latter, as has been seen, requires an entity exercising effective power or control over a population or area and that the victims are personally under such authority or control. The entity is typically a state. And indeed all treaty-​based IHRL makes states the duty-​bearers. Conceptually, however, an entity exercising effective power other than a state could reproduce the human rights paradigm, but there is a very little international law practice dealing with such non-​state entities.41 Evidently a party to an armed conflict possessing the attributes laid down in Additional Protocol II to the Geneva Conventions would meet this human rights paradigm.42 It is unclear whether parties not possessing the same attributes may still be parties to such a conflict under common Article 3. There is no requirement that there be a party to the commission of crimes against humanity (other than the state itself, if its personnel commit such crimes), but it is also clear that there has to be an organizational underpinning for non-​state commission of such crimes. The requirement is implicit in the notion of an ‘attack’ against a civilian population. It is made explicit in the Elements of Crimes: these require that the acts be

R2P and International Law: A Paradigm Shift?    197 committed ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’.43 Thus, while there must be an organization via which the attack within which a crime against humanity is committed, the organization does not necessarily have to control territory and population for the threshold to be met. This was exemplified by the categorization by Mary Robinson, the UN High Commissioner for Human Rights of the 11 September 2001 attack by Al-​Qaeda on New York’s World Trade Center as a crime against humanity.44 It is also significant that not all civil and political rights are engaged by crimes against humanity or war crimes. The most evident ones, indeed, are those that are considered non-​derogable in international human rights treaties, even in time of war or public emergency: the prohibition of discrimination, of torture and other ill-​ treatment, of slavery and the rights to life, and to be treated as a person before the law. It is generally understood that some derogable rights may not be derogated from in their essential nature, notably, the rights to liberty and security of person and to due process.45 Accordingly, just as there is no necessary identity between rights-​holders and duty-​ bearers under IHRL, on the one hand, and ICL/​IHL on the other, so their fields of application are not co-​extensive. This compels the conclusion that it would be misleading to see R2P as a straightforward development in the implementation of IHRL. Indeed, the very context of engaging ICL/​IHL with their framework of mass victimization is at odds with the human rights paradigm of individuals being the rights-​holders and every single individual being a beneficiary of IHRL and capable of vindicating his or her rights under that law.

Criteria for Resort to R2P Coercive Measures As earlier indicated, the use of coercive measures, especially armed force, is not the preferred method of implementing pillar 3. The response has to be ‘reasoned, calibrated and timely’.46 As the Secretary-​General pointed out in his 2012 report to the Security Council and the General Assembly, the Chapter VI range of diplomatic and humanitarian and other peaceful means should be used where possible.47 However, as he also points out in the same report, ‘coercive measures should neither be left out of our comprehensive strategy nor set aside for use only after all other measures have been tried and found to be inadequate’.48 So, there can be no graduated check-​list, each of which has to be experimented with, when it is clear that some measures are going to be inadequate and the lives of many may be at stake. There can be ‘no template for decision-​ making in such situations’.49 Once the genocide in Rwanda had started, it was clear that only armed action could have stopped it. Diplomatic measures or even sanctions would have been fruitless. Regrettably UNAMIR was prevented from doing it and it fell to the invading Rwanda Patriotic Front forces to fulfil the task and only after people had been hacked to death in the hundreds of thousands.50

198   Sir Nigel Rodley The traditional international law notions of necessity and proportionality are apposite. These are the same principles that would be considered conditions for a lawful humanitarian intervention, were that doctrine to become lawful again (if it ever was). They are also the principles in play for testing the legality of an asserted act of legitimate self-​defence. According to the principle of necessity, the coercive measure must be undertaken as a last resort.51 This applies even to coercive measures not involving the use of armed force. It means that the measure must be the minimum necessary to achieve the objective. In other words, no lesser measure would be expected to be successful. Evidently, once armed force is the only option commending itself, again it must be the least destructive mode capable of stopping the atrocities requiring termination. The principle of proportionality has to do with a balancing of means and ends. To give a blunt example, if the only predictable means of saving lives is by sacrificing more lives, be they those of the affected population (or perhaps those of the intervening forces) then the principle of proportionality will not be met. As I have put it elsewhere, there is no justification for using a medicine that kills the patient. A related, or perhaps more accurately a variation of the same principle is proposed by the Commission on the Responsibility to Protect. This says that there must be ‘reasonable prospects’ of success in ‘halting or averting the atrocities or suffering that triggered the intervention in the first place’.52 Another principle is that of disinterestedness or what the Commission calls ‘right intention’.53 This principle demands that the main purpose be the humanitarian goal, not the advancement of any political or territorial objective of any particular state or group of states, especially those that may be providing the intervening forces. Unfortunately, the principle of disinterestedness cannot be expected to achieve a counsel of perfection: not all situations characterized by the four kinds of crime identified by R2P will be susceptible of international intervention. This may be because there are no practically available forces as a consequence of activities elsewhere or, more abjectly, because some states, especially those with or protected by the veto power or otherwise militarily powerful, are immune from effective external compulsion. This is no new fault line in the structure of international relations.54 Nor does it justify abandoning populations that could be rescued, simply because consistency is not possible. This disparity evidently offends basic notions of equity and fairness. Indeed, it calls into question the scope of the responsibility to protect. While no principle should be expected to be stretched to the point of impossibility of performance, the present and foreseeable prevalence of inconsistency over consistency makes it hard to speak properly of an external responsibility to protect. Rather, it may be more appropriate to conceive of the responsibility to protect, to the extent that it connotes legal responsibility as vesting in the state where the atrocities are occurring. For the rest, it is less obvious that one may see the intervention possibilities of the international community in terms of implementing a legal duty. After all, one does not typically find even the failures of the UN since its founding to maintain international peace and security as traditionally

R2P and International Law: A Paradigm Shift?    199 understood, including the myriad veto-​induced failures, being described as breaches of legal obligation. On the other hand, a persuasive case has been made that there is a ‘special responsibility’ (as opposed to the ‘general responsibility’ of the state suffering the violations) on at least the P5 members of the Security Council to do what they realistically can and, in particular, to refrain from wielding a politically interested veto to block action.55 At this stage that responsibility may be more evident as a concept of international relations—​ a political responsibility—​than of law. Nevertheless it would be desirable that the law catch up. If what is known as the ‘French proposal’, that the P5 abstain from using the veto in R2P-​type situations, were to be adopted, that would be potent evidence of the juridical emergence of the special responsibility.56

UN Practice Other chapters of this book examine cases that may shed light on R2P in practice, but an international lawyer must also take account of practice, since this is a necessary aid to interpretation. As we have seen already, the arrival of R2P represented at least the codification of a substantial change in the interpretation of the UN Charter, especially its Articles 2(7) and 39. The World Summit Outcome Document did not emerge without antecedents. Most notably, the 1990 ECOWAS intervention in the brutal Liberian civil war may be seen in retrospect as a manifestation of R2P in action. It is true that the action was undertaken by ECOWAS without Security Council approval and, at the time, appeared to violate the Charter Article 53 requirement for Security Council authorization. However, two years later, Security Council resolution 788 (1992) commended ECOWAS ‘for its efforts to restore peace and security to Liberia’ and further imposed an arms embargo on the parties under Chapter VII. Later the establishment of UNMIL would be approved under Chapter VII, its most recent renewal occurring in December 2014, by resolution 2190 (2014). This resolution specifically refers to the primary responsibility of Liberia to protect its population.57 Note, however, that the Security Council is no longer acting against the wishes of the Liberian government. If the apparent illegality was transformed into lawfulness, this presumably was because either post hoc as opposed to prior authorization is sufficient or because a latent rule of recognition in international law allows for community determination of the legal significance of acts of doubtful legality.58 Since the adoption of resolution 1674, the Security Council appears as of the end of 2014 to have referred to R2P in some 26 resolutions (other than in respect of Liberia), which referred to nine country situations.59 In respect of three of the countries, the UN action was in support of the constitutional authorities (Mali, Somalia, and South Sudan).60 In respect of one, Yemen, no action was taken beyond an invocation of pillar 1 language.61 Five of the resolutions dealt with the Central African Republic, where

200   Sir Nigel Rodley the international intervention was motivated because of the total collapse of law and order.62 The deployment of UNMIS personnel in Darfur, which was portrayed as targeting the activities of unofficial, albeit pro-​Khartoum, militia,63 was authorized by resolution 1706 (2006) which explicitly invoked resolution 1674. This was adopted with three abstentions (China, Russia, and Qatar) motivated by the absence of Sudanese consent.64 On the other hand, the Sudanese authorities did not seek physically to restrict the operation. Similarly, Côte d’Ivoire, in a situation of political strife, did not seriously resist the deployment of African and then UN peacekeepers, albeit the decision was taken against the will of (former) President Laurent Gbagbo and so, like resolution 1706 on the Sudan, represented a real intervention.65 The last two of the nine countries, Libya and Syria, typify the difficulty of understanding and implementing R2P. Of some five resolutions on Libya the most important was resolution 1973 (2011). Invoking Chapter VII, this authorized the enforcement, using ‘all necessary means’ (the standard code aimed at covering military action), of a no-​fly zone by a coalition of military forces led by France and the United Kingdom and other military action to protect civilians. It built on an earlier resolution that had already imposed an arms embargo under Chapter VII.66 The resolution invoked ‘the responsibility of the Libyan authorities to protect the Libyan population’.67 On the other hand, it studiously avoided reference to resolution 1674, while at the same time it did invoke resolution 1738 on the protection of journalists in armed conflict. The resolution was adopted with five abstentions, some of the abstainers making it clear that they were not voting against in the light of the fact that the League of Arab States supported the resolution.68 The effect of the military measures was to create air support for the insurgents and the removal of the Gadhafi regime appeared as the goal. The achievement of the goal incited vigorous protests by some of the abstaining states, notably China and Russia.69 It is the threat of a veto by these states that has stymied the Security Council in authorizing coercive measures in respect of the Syrian conflict. They maintain that they do not trust Western-​led states not to exceed a mandate to protect civilians and not to move towards regime change. It took until February 2014 for the Council to adopt a resolution, generally aimed at all parties to the conflict, and focusing on securing access by providers of humanitarian assistance. It did, however, stress the authorities’ role in some paragraphs, specifically condemning ‘the widespread violations of human rights and international humanitarian law by the Syrian authorities’.70 It effectively invoked pillar 1 by stressing ‘the primary responsibility to protect its population is with the Syrian authorities’.71 No specific measures by the international community were demanded. The resolution failed to lead to substantial improvement, so in July 2014 the Council adopted resolution 2165 (2014). This resolution imposed a limited measure, namely, that humanitarian agencies be allowed access to parts of Syrian territory not under the control of the authorities and implicitly without the consent of the Syrian authorities.72 The Council also considered ‘the deteriorating humanitarian situation’ to constitute the threat to international peace and security that it blatantly was, but it did not invoke Chapter VII. On the other hand, it did affirm the obligation of Member States ‘under Article 25 of the Charter of the United Nations to accept and carry out Council decisions’.73 This was

R2P and International Law: A Paradigm Shift?    201 an implicit reference to the doctrine of the ICJ in the Namibia Advisory Opinion. This asserted, controversially, that the Council could take decisions under Charter Article 24 that would be binding on all members by virtue of Article 25, even if they were not taken pursuant to the specified grants of power under various other chapters of the Charter, as long as they were ‘consistent with the fundamental principles and purposes’ of the Charter.74 Still, it must be stressed that the only purported encroachment on Syrian ‘sovereignty’ was by way of securing humanitarian assistance to people in Syrian territory outside the control of the Syrian authorities. As of the time of writing, the situation in Syria has so deteriorated, with the insurgency now comprising substantial, if not preponderant elements of so-​called Islamic jihadists, whose intoxication with flaunting cruelty and ruthlessness mocks world community values,75 that it is not clear that the outside world has the political or military will and resources to alleviate it, regardless of Security Council powers.

Conclusion The UN’s understanding of the scope of its functions under the Charter has developed radically from its early days. It moved, first, from an interpretation of its powers under Article 2(7) that excluded consideration of states’ human rights performance to one that permitted intrusive consideration, including by means of fact-​finding, of extensive human rights violations. In some cases under Commission on Human Rights (now Human Rights Council) thematic procedures this included consideration of individual cases, even in the absence of a complaints procedure under a human rights treaty. Yet, even after this movement, the Security Council generally refrained from consideration of human rights issues in specific countries despite the real or potential trans-​border disruption that ‘internal’ human rights situations could generate, as exemplified by Iraq in the early 1990s and Kosovo later in the decade. This reluctance doubtless reflected not only the traditional flat rejection of the notion of ‘humanitarian intervention’ by single or groups of states, but also a belief that human rights problems ought not to be considered as threats to international peace and security. To the extent that R2P accepted not only discussion by but also intervention under the authority of the Security Council, with little by way of precedent (except perhaps for Liberia), this must be seen as a paradigm change relating to the legitimacy of the use of force by the UN. The fact that there are conditions for justifying such use of force, notably compliance with the traditional principles of necessity and proportionality and the R2P-​specific one of neutrality, does not diminish the nature of the paradigm change. It is less certain that a paradigm change has occurred in IHRL. First, R2P does not cover all human rights, nor even all civil and political rights. Second, the context of armed conflict or an attack against a civilian population, and/​or the target being a group, distances R2P from the traditional human rights paradigm involving the relationship between the state (or other entity exercising similar effective power) and each single

202   Sir Nigel Rodley individual subject to its jurisdiction. Third, the perpetrators will not necessarily be state agents (or even agents of another entity exercising similar effective power). Meanwhile, it is necessary to be cautious about the practical impact of the new paradigm that is R2P. The aspiration for disinterestedness, like truth, is something to be aimed at, but cannot be guaranteed. Not all situations deserving R2P action will receive it, whether because of limited military resources, absence of political will (especially in the light of the current state of apparent mistrust among the P5), or political or military invulnerability of the state in question. This suggests that the legal responsibility part of R2P resides in pillar 1: the responsibility of the state where the violations are occurring. There is now a political responsibility and there may also be a legal responsibility on the UN, and the Security Council in particular, not to ignore a potential R2P situation, but, however regrettably, we cannot yet discern an unambiguously legal responsibility of the organization to put an end to the situation. Still, a path once seemingly closed is now open and it may be expected that some populations may be able to be rescued from the extreme misery their governments or others may inflict on them.

Notes 1. ECOSOC 1947, resolution 75(V) (1947). 2. Thus, the initial International Bill of Human Rights was to consist of the Universal Declaration of Human Rights (UDHR) to be adopted by General Assembly resolution (so not per se binding) and a treaty that would transform the broad principles of the Declaration into binding legal rules for states that would become party to it. Eventually two treaties emerged, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) and Optional Protocol to the latter to complete the International Bill. The former would be supervised by ECOSOC itself, the latter by a Human Rights Committee of 18 independent experts. There are now ten core human rights treaties and treaty bodies. Note, ECOSOC established a Committee on Economic, Social and Cultural Rights, modelled on the Human Rights Committee, to discharge its own functions under the ICESCR. 3. ECOSOC 1957, resolution 728(F) (1957). States could indicate whether they wished their replies to be circulated to Commission members in full or in summary form. 4. Observations of contemporaneous participants shared with the present author. 5. The mandate of the Working Group on Arbitrary Detention empowers the group to ‘investigate cases’ within its mandate: Commission on Human Rights resolution 1991/​42. More recently, the current Special Rapporteur on torture, Juan Mendez, has been drawing conclusions in respect of individual cases: see, e.g. Report, Addendum, Observations on communications transmitted to Governments and replies received (United Nations General Assembly 2013, A/​HRC/​22/​53/​Add.4). 6. See sources cited in Rodley 2015, p. 776 n. 3. 7. On the facts of these interventions, see Franck and Rodley 1973, pp. 277–​83. 8. According to Article 2(4): ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’

R2P and International Law: A Paradigm Shift?    203 9. See sources cited in Rodley 2015, p. 776 n. 2. 10. Rodley and Çalı 2007, p. 281 n. 19. 11. See sources cited in Rodley and Çalı 2007, p. 278 n. 9. 12. United Nations 2004. 13. See International Law Commission 2001. 14. Rodley 2015, pp. 793–​6; Franck 2009, ­chapter 10. 15. United Nations General Assembly 2009, A/​63/​677. 16. United Nations General Assembly 2005, A/​RES/​60/​1. 17. Emphasis added. 18. Rodley 1992, pp. 14, 40. 19. Rodley 1992, pp. 28–​34. 20. United Nations Security Council 1990, S/​RES/​0678. 21. United Nations 2004, para. 203; emphasis added. 22. Rodley 1992, p. 40. 23. ICISS 2001, p. xii. 24. Undefined at the time of the adoption of the Rome Statute, its application was suspended pending the achievement of a later definition by states parties; see now ICC 2010. 25. United Nations General Assembly 1948. 26. See Rodley 2013, pp. 523–​44. 27. United Nations General Assembly 1966, Article 6. 28. United Nations General Assembly 1966, Article 8. 29. United Nations General Assembly 1966, Articles 12 and 13. 30. United Nations General Assembly 1966, Article 9; on the scope and nature of the right to liberty and security of person and of arbitrary arrest and detention, see United Nations Human Rights Committee 2014, Article 9: ‘Liberty and Security of Person’. 31. United Nations General Assembly 1966, Article 7; for the purposes of the Rome Statute, torture is defined in Article 7(2)(e). On varying definitions of torture, notably Rome Statute Article 7(2)(e), Elements of Crime referring to the ‘war crime’ of torture, Articles 8(2)(a)(ii)-​1 and 8(2)(e)(i)-​4, see Rodley and Pollard 2009, ­chapter 3. 32. See Rodley and Pollard 2009, pp. 342–​57. 33. Thus, Article 2 of the ICCPR requires Covenant rights to be respected and ensured ‘without discrimination of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’; Article 26 prohibits discrimination on the same grounds in respect of national legal rights too—​the so-​ called ‘free-​standing’ non-​discrimination provision. 34. ICJ 1986, 14 at 113–​14. 35. This is the order of principles found in the Rome Statute Article 8(2)(c), which inexplicably inverts sub-​paragraphs (ii) and (iii) from the comparable provisions of common Article 3. 36. The full text of ICCPR Article 7 reads: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.’ 37. According to the second Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, the operative minimum age would have been 18, not 15. 38. Rome Statute Article 8(2)(a)(vii); however, arguably the point may be covered by the Article 8(2)(c)(viii) war crime, in respect of a non-​international armed conflict, of ‘ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand’.

204   Sir Nigel Rodley 39. See ICJ 2007, 43, in which the Court found Serbia responsible for failing to prevent the genocide in Srebrenica (at 238). 40. United Nations Human Rights Committee 2004, para. 18. 41. Rodley 2013, pp. 531–​6. 42. According to its Article 1, the Protocol applies to a state’s armed forces and ‘dissident armed forces or other armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations’. This standard would, for example, have covered the Liberation Tigers of Tamil Eelam (LTTE or Tamil Tigers) in respect of the areas they controlled in northern Sri Lanka before their defeat in 2009. 43. ICC 2011, Article 7, Introduction, para. 3; emphasis added. 44. Office of the High Commissioner for Human Rights 2001. 45. See Office of the High Commissioner for Human Rights 2001, States of Emergency, para. 4, 118, 16; and United Nations Human Rights Committee, paras. 66 and 67. 46. United Nations General Assembly 2009, A/​63/​677, para. 11(c). 47. United Nations General Assembly 2012, A/​66/​874–​5/​2012/​578, para. 22. 48. United Nations General Assembly 2012, A/​66/​874–​5/​2012/​578, para. 56. 49. United Nations General Assembly 2012, A/​66/​874–​5/​2012/​578, para. 57. 50. See, generally, Power 2002, pp. 329–​80. 51. ICISS 2001, paras. 4.37–​4.38. 52. ICISS 2001, paras. 4.41–​4.43. 53. ICISS 2001, paras. 4.33–​4.36. 54. See Rodley and Çalı 2007. 55. Dunne 2013. 56. Fabius 2013. 57. Preambular para. 3 and operative para. 1. 58. See Rodley 2015, pp. 784–​5. 59. See GCRtoP 2013. 60. Somalia: resolution 2093 (2013); Mali: resolution 2100 (2013); South Sudan: resolutions 2109 (2013), 2155 (2014), and 2187 (2014). 61. United Nations Security Council 2011, S/​RES/​2014, preambular para. 14. 62. Resolutions 2121 (2013), 2127 (2013), 2134 (2014), 2149 (2014), and 2196 (2015). 63. See United Nations Security Council 2006, 5/​2006/​591, paras. 35–​9. 64. The resolution expressly invited such consent (operative para. 1). Sudan rejected the resolution: BBC 2006. 65. United Nations Security Council 2011, S/​RES/​1975. 66. United Nations Security Council 2011, S/​RES/​1970; other resolutions on Libya are 2016 (2011), 2040 (2012), and 2095 (2013). 67. Preambular para. 4. 68. The abstainers were Brazil, China, Germany, India, and Russian Federation; the first three of these explained their not opposing passage of the resolution by reference to the League of Arab States support for it: United Nations Security Council 2011, S/​PV.6498. 69. Evans 2012. 70. United Nations Security Council 2014, S/​RES/​2139, operative para. 1. 71. United Nations Security Council 2014, S/​RES/​2139, operative para. 9. 72. This was in the light of Secretariat reluctance to engage in relief operations not authorized by the government of a UN Member State. That position was challenged in an Open Letter signed by 35 international lawyers, including the present writer; see Borger 2014.

R2P and International Law: A Paradigm Shift?    205 73. Preambular para. 19. 74. ICJ 1971, 16, at 52.53. 75. The latest manifestation being the burning alive of captured Jordanian pilot Lt. Moaz al-​ Kasasbeh by the group calling itself ‘Islamic State’: BBC 2015.

References BBC (2006). ‘Sudan Rejects Darfur Resolution’, BBC News, 31 August. (accessed 8 February 2015). BBC (2015). ‘Jordan Pilot Hostage Moaz al-​Kasasbeh “Burned Alive”’, BBC News, 3 February. (accessed 8 February 2015). Borger, Julian (2014). ‘Syria: UN Urged to Defy Assad on Aid or Risk Lives of Hundreds of Thousands’, The Guardian (UK), 28 April. (accessed 8 February 2015). Dunne, Tim (2013). ‘Distributing Duties and Counting Costs’, Global Responsibility to Protect 5(4): 443–​65. Evans, Gareth (2012). ‘Gareth Evans on “Responsibility to Protect” after Libya’. Interview with Gareth Evans by Alan Philips for The World Today, Chatham House, October 2012. (accessed 8 February 2015). Fabius, Laurent (2013). ‘A Call for Self-​Restraint at the U.N.’, New York Times, 4 October. . Franck, Thomas M. (2009). Recourse to Force: State Action against Threats and Armed Attacks (Hersch Lauterpacht Memorial Lectures) (Cambridge: Cambridge University Press). Franck, Thomas M. and Nigel Rodley (1973). ‘After Bangladesh:  The Law of Humanitarian Intervention by Military Force’, American Journal of International Law 67(2): 275–​305. Global Centre for the Responsibility to Protect (GCRtoP) (2013). UN Security Council Resolu­ tions Referencing R2P. (accessed 8 February 2015). International Commission on Intervention and State Sovereignty (ICISS) (2001). The Responsi­ bility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre). International Court of Justice (ICJ) (1971). Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970). Advisory Opinion, ICJ Reports. International Court of Justice (ICJ) (1986). Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America). Judgment, ICJ Reports, 27 June. International Court of Justice (ICJ) (2007). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro). Judgment, ICJ Reports. International Criminal Court (ICC) (2010). ICC 13th plenary meeting of States Parties, Resolution RC/​Res.6, 11 June. International Criminal Court (ICC) (2011). ‘Elements of Crimes’. .

206   Sir Nigel Rodley International Law Commission (2001). Draft Articles on the Responsibility of States for Internationally Wrongful Acts. . Kramer, David and David Weissbrodt (1981). ‘The 1980 U.N. Commission on Human Rights and the Disappeared’, Human Rights Law Quarterly 3(1): 18–​33. Office of the High Commissioner for Human Rights (2001). Annual Report 2001. (accessed 8 February 2015). Power, Samantha (2002). ‘A Problem from Hell’: America and the Age of Genocide (New York: Basic Books). Rodley, Nigel (1992). ‘Collective Intervention to Protect Human Rights and Civilian Populations: The Legal Framework’, in Nigel Rodley (ed.), To Loose the Bands of Wickedness: International Intervention in Defence of Human Rights (London: Brassey’s), pp. 14–​42. Rodley, Nigel (2013). ‘Non-​State Actors and Human Rights’, in Scott Sheeran and Nigel Rodley (eds.), Routledge Handbook of International Human Rights Law (Abingdon: Routledge), pp. 523–​44. Rodley, Nigel (2015). ‘Humanitarian Intervention’, in Marc Weller (ed.), The Oxford Handbook of the Use of Force in International Law (Oxford: Oxford University Press), pp. 775–​96. Rodley, Nigel and Basak Çalı (2007). ‘Kosovo Revisited: Humanitarian Intervention on the Fault Lines of International Law’, Human Rights Law Review 7(2): 275–​97. Rodley, Nigel and Matt Pollard (2009). The Treatment of Prisoners under International Law, 3rd edn. (Oxford: Oxford University Press). United Nations (2004). A More Secure World: Our Shared Responsibility. Report of the Secretary-​ General’s High-​Level Panel on Threats, Challenges, and Change. New York: United Nations. United Nations Commission on Human Rights (1991). Resolution 1991/​42. United Nations Economic and Social Council (ECOSOC) (1947). Resolution 75(V) (1947). United Nations Economic and Social Council (ECOSOC) (1957). Resolution 728(F) (1957). United Nations General Assembly (1948). Convention on the Prevention and Punishment of the Crime of Genocide. United Nations General Assembly (1966). International Covenant on Civil and Political Rights, 19 December. United Nations General Assembly (2005). World Summit Outcome Document, adopted by UN General Assembly Resolution A/​RES/​60/​1, 24 October. United Nations General Assembly (2009). Implementing the Responsibility to Protect: Report of the Secretary-​General, A/​63/​677, 12 January. United Nations General Assembly (2012). Responsibility to Protect:  Timely and Decisive Response. Report of the Secretary-​General, UN doc. A/​66/​874–​5/​2012/​578. United Nations General Assembly (2013). Report of the Special Rapporteur on torture, and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez. Addendum, Observations on communications transmitted to Governments and replies received. A/​HRC/​ 22/​53/​Add.4, 12 March. United Nations Human Rights Committee (2001). General Comment No. 29, States of Emergency (Article 4). CCPR/​C/​21/​Rev.1/​Add.11. United Nations Human Rights Committee (2004). General Comment No. 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant. CCPR/​C/​21/​Rev.1/​ Add.13, 26 May. United Nations Human Rights Committee (2014). Human Rights Committee General Comment No. 35, Article 9: Liberty and Security of Person. CCPR/​C/​GC/​35, 16 December.

R2P and International Law: A Paradigm Shift?    207 United Nations Security Council (1990). Resolution 678. S/​RES/​0678 (1990), 29 November. United Nations Security Council (2006). Report of the Secretary-​General on Darfur. 5/​2006/​ 591, 28 July. United Nations Security Council (2011). Resolution 1970 (2011). S/​ RES/​ 1970 (2011), 26 February. United Nations Security Council (2011). Resolution 1973 (2011). Adopted by the Security Council at its 6498th meeting, on 17 March 2011. S/​RES/​1973 (2011), 17 March. United Nations Security Council (2011). 6498th meeting. S/​PV.6498, 17 March. United Nations Security Council (2011). Resolution 1975 (2011). S/​RES/​1975 (2011), 30 March. United Nations Security Council (2011). Resolution 2014. S/​RES/​2014 (2011), 23 October. United Nations Security Council (2014). Resolution 2139. Adopted by the Security Council at its 7116th meeting, on 22 February 2014. S/​RES/​2139, 22 February. United Nations Security Council (2014). Resolution 2165. Adopted by the Security Council at its 7216th meeting, on 14 July 2014. S/​RES/​2165, 14 July. United Nations Security Council (2014). Resolution 2190. S/​RES/​2190, 15 December.

Chapter 12

H ow Well D oe s R2 P Tr avel Beyond t h e  W e st ? Faith Mabera and Yolanda Spies

The responsibility to protect (R2P) is usually conceptualized as a liberal Western construct, and this assumption has implications for the substance as well as the tenor of the discourse. As African scholars we consider ourselves part of the world beyond the West—​the so-​called ‘Rest’—​and our approach to the theme is therefore a situated perspective, as our argument draws on non-​Western discourses on humanitarianism and normative claim-​making in international society. We will start off by commenting on the paradoxical nature of the latter, before we reflect on the genesis of the R2P norm. Debate on the norm has transcended the legal-​humanitarian debate of which it was born, and we will consider two pivotal moments in R2P’s political ‘journey’: the 2005 World Summit where world leaders endorsed the principles of R2P, and the deliberations around Security Council resolution 1973 that resulted in the 2011 military intervention in Libya. The latter, in particular, revealed critical fault lines in the discourse. One of these, the issue of structural power, will be examined against the background of what some commentators refer to as the ‘Rise of the Rest’. The non-​Western world includes the vast majority of sovereign states in the contemporary world order, and our focus will thus of necessity have to be narrowed down. The emerging power forum of BRICS, comprising Brazil, Russia, India, China, and South Africa, offers a useful pool of case studies because increasingly, in unison or individually, they counter the political hegemony exercised by the United States and its allies. Though few in number, the BRICS member states represent a massive portion of humanity, spanning Eurasia, Asia, Africa, and Latin America, and two of them are also permanent members of the UN Security Council (UNSC). The Council, of course, is the main arena of the R2P debate, given its unmatched legal authority over matters of global peace and security. Its actions (or lack thereof) and indeed its very structure have therefore contributed to the controversy around R2P. Moving beyond the focus on actors and agency, we will consider some of the conceptual hurdles that induce a West-​versus-​the-​Rest framing of the R2P debate. The

R2P Beyond the West    209 most contentious of the three R2P pillars1 is arguably the third, which confers responsibility on the international community to intervene in the event of a state’s manifest failure to protect its citizens. It is at this junction that the fundamental ordering device of the contemporary state-​system—​the conjoined principles of sovereignty and non-​ intervention—​is challenged by the practical reality of R2P. The resultant tensions around legitimacy, authority, real or perceived political agendas, and the sheer weight of historical precedent, shed light on structural schisms in international society. Finally, and acknowledging the need to move beyond a binary template in the discourse, we will consider the potential of middle powers to exercise normative leadership and to straddle the political divides that undermine the development of a fully-​fledged R2P doctrine.

Norms and (a Divided) International Society Theorists of international society maintain that states, by virtue of shared interests and norms, coalesce in a ‘society’ that is organized through universally accepted rules of engagement, expressed in common institutions.2 The society of states originated in Renaissance Europe, whence values and codes of conduct were exported to non-​ Western societies. As the latter became socialized into the European norms (one of which is state sovereignty), the size of international society enlarged, until it took on a global dimension. The role of norms in an ideational society is also a leitmotiv in the work of IR constructivists. These theorists argue that norms and international society are linked in a mutually constitutive relationship—​the society itself is therefore conjectured and subjective. Moreover, the existence (and perpetuation) of international society relies less on structure than on practice, which in turn hinges on application of shared norms and traditions.3 The continuous process of contestation and interpretation that marks systemic norm dynamics, feeds into the ‘ontological insecurity’, as Rebecca Adler-​Nissen refers to it, at the heart of international society.4 The peculiar making of contemporary international society has added to its existential diffidence. As history has shown, international society was exported to the non-​European world through a medium that belied its attendant ideas of civilization and order: imperialism, embedded in mercantilism, compelled vast and extremely heterogeneous swathes of humanity to enter the state-​centric world order. Not surprisingly, many critics take issue with the assumption that a Eurocentric engine of international society exerts normative, centripetal guidance over non-​Western societies. As Vivienne Jabri notes: the ideational construction of the international is conventionally attributed to the West, from the expansion of the modern state as a form of political organisation and

210    Faith Mabera and Yolanda Spies recognition, to the institutions and practices of a neoliberal international political economy, to internationally recognised and instituted standards of individual rights.5

Theorists such as Brown, Epstein, and Zarakol warn that one-​dimensional perspectives on world order reproduce historical patterns of asymmetric power in the international system.6 Related claims about one-​direction norm-​entrepreneurship can be provocative and divisive. At best, it is disingenuous to suggest that all acceptable behaviour by non-​ Western states is the positive result of Western influence. The utility of such postcolonial perspectives becomes apparent when appraising the identities of states that are part of the Rest (exemplified by the BRICS) and their concomitant agency in influencing the extant liberal-​internationalist and liberal-​ institutionalist order. By focusing on the postcolonial as a ‘split-​subject’ of the colonial past and the liberal present, agency is accorded to the Rest as active shapers of the normative order without subsuming them into a Western-​dominated international order.7 In the case of R2P, for instance, the positions of the BRICS are imbued with the diversity and characteristics of their individual historical, social, and political experiences including colonialism, poverty, inequality, globalization, and civil or cross-​ border conflict.8

African Roots, Global Consensus? As in most debates about international norms, the notion of origin, or norm ownership, often crops up in literature on R2P. It is widely referred to as a ‘liberal’ norm, and thus frequently portrayed as a ‘Western’ concept by both proponents and their detractors. The academic debate has certainly been dominated by scholars from the Global North, but some prominent advocates have been at pains to emphasize the African roots of R2P, presumably in an effort to prove its non-​Western (if not global) credentials.9 Paul Williams for example, has credited Africa with being ‘one of the most important crucibles in which R2P was forged’.10 Beyond the unfortunate fact that Africa offers the world’s largest ‘laboratory’ for R2P (on account of its disproportionate share11 of humanitarian crises) individual Africans have played key roles in conceptualizing the norm. (This was the case even before the International Commission on Intervention and State Sovereignty (ICISS) was co-​ chaired by veteran Algerian diplomat and long-​time UN Adviser on Africa, Mohamed Sahnoun.) It was Francis Deng, a Sudanese diplomat and scholar, who first made the explicit connection between sovereignty and responsibility in a 1995 article, ‘Frontiers of Sovereignty’. Deng’s thesis informed his May 2007 selection as the UN Secretary-​ General’s Special Adviser on the Prevention of Genocide. His personal stature also prompted an upgrade of the position (which had been in existence for three years at that stage), to that of Under-Secretary-​General.

R2P Beyond the West    211 African contributions to the genesis of the R2P discourse have also been salient within the main arena of global governance, the United Nations. The first two (and thus far, the only) African Secretaries-​General of the organization, Boutros Boutros-​Ghali and Kofi Annan, both ensured that the human security paradigm pervaded their executive agenda. Annan’s appeal for reinterpretation of the traditional understanding of sovereignty resulted in the launch of the ICISS during 2000. His personal contribution in this regard was lauded when he was awarded the 2001 Nobel Peace Prize.12 The unique African role in the genesis of R2P has not been limited to the individual level. Even before the ICISS issued its landmark report, the African Union (AU) became the first intergovernmental organization ever to condone humanitarian intervention in its charter, the AU Constitutive Act of 2000. As Edward Luck (who served as Special Adviser to the UN Secretary-​General on the Responsibility to Protect from 2008 to 2012) says, R2P thus ‘emerges quite literally, from the soil and soul of Africa’.13 The identification of geopolitical R2P ‘roots’ is arguably of less importance than the extent to which a critical mass of state actors agree on its status. A ‘tipping point’14 in this regard arguably happened during the UN’s 60th anniversary in 2005, when the largest ever gathering of world leaders unanimously endorsed the principle of R2P. The symbolism of paragraphs 138 and 139 of the World Summit Outcome Document (WSOD) has been tainted, however, by doubts about the extent to which the two paragraphs actually reflected international consensus on the ‘meaning’ of R2P—​hence the subsequent labelling of the WSOD phrasing as ‘R2P-​lite’.15 While proponents cited evidence of R2P’s global diffusion, critics noted that inasmuch as R2P seemed to be ‘cascading’ through the international system, its application—​the ultimate proof of its strength and legitimacy—​had not been prevalent enough for it to become an uncontested part of international law.16 A definitive moment was reached in 2011, when the Security Council authorized the use of force to prevent a humanitarian catastrophe in Libya. It was the first time the Council acted in such a decisive way against a functioning state17 and once again a critical mass18 of states (considering that there was no opposition to the resolution within the UNSC) had swayed the decision. But this spectacular application of the third pillar of R2P had hardly commenced, when the debate descended into acrimony and revealed the discordant elements in the ‘consensus’ around R2P. Resolution 1973 and its aftermath highlighted a perennial subtext in the intersubjective discourse that defines international society: the reality of structural power.

R2P and Structural Power: The Example of BRICS Michael Barnett and Raymond Duvall define power as ‘the production, in and through social relations, of effects that shape the capacities of actors to determine their

212    Faith Mabera and Yolanda Spies circumstances and fate’.19 Since the end of the Cold War, several developing countries have become adept at doing just that, as they assumed the profile of ‘emerging powers’. The diplomatic initiatives employed by states such as China, Russia, India, Brazil, and South Africa, to draw on the BRICS example, dispel any doubts about them being submissive norm-​takers. They confidently imprint on international society and its composite normative foundations20 as they reflect the non-​Western world’s demand for more ‘democracy’ in the global arena. Richmond and Tellidis observe that the positions of individual BRICS countries are nuanced, multifaceted, and simultaneously informed by both critical and status quo-​oriented postures.21 The degree to which emerging powers such as BRICS exert structural power is determined by their preferences (expressed through policy positions and voting behaviour in international forums), capabilities (their comparative resources and clout in international relations), and effective strategies to advance their foreign policy objectives.22 In their foreign policy rhetoric, especially in the multilateral organizations where they join forces, they make it clear that they are ready and able to provide leadership in an increasingly post-​European international order. The reform agenda of emerging powers is understandably prominent within institutions of global governance, where (despite the state-​centric system’s much-​vaunted anarchic nature) power hierarchies remain structurally entrenched. This is nowhere more evident than in the permanent, supremely powerful core of the UNSC. In the opinion of many commentators, the institutionalized monopoly of the P5 members is anathema to multilateralism and the Council’s historical-​political configuration prevents it from serving as a neutral arbiter.23 Many states have campaigned for restructuring of the Council, arguing that its composition and working methods are relics of the past. Several emerging powers, including India, Brazil, and South Africa (the three BRICS countries without permanent membership of the Security Council) have not only insisted on reform, but campaigned as candidates for permanent seats. Their quest to become ‘equal co-​architects of a new equitable international system’—​as South African President Jacob Zuma declared when his country became the ‘S’ in BRICS during April 2011—​is however not restricted to a ‘Rest against the West’ struggle.24 The status quo of institutionalized hegemony is jealously guarded wherever it is entrenched, and the P2 who happen to be BRICS members, Russia and China, are as guilty of this as their Western P3 counterparts—​France, the United Kingdom, and the United States.25 Due to the prominence of BRICS and the aspirations of its members, the forum has had to reference the debate on Security Council reform. The same summit that admitted South Africa declared that ‘China and Russia reiterate the importance they attach to the status of India, Brazil and South Africa in international affairs, and understand and support their aspiration to play a greater role in the UN.’26 The discreet wording of the communiqué hints at Russia’s and China’s reticence to enlarging the pool of veto-​wielding powers within the Security Council, even to their new comrades in BRICS. This raises the question of how other emerging powers would handle institutionalized leadership positions—​especially the legally entrenched gate-​keeping powers of the UNSC—​should they be bestowed with such

R2P Beyond the West    213 authority. Indeed, Jennifer Welsh raises the interesting point that, should agreement be reached on UNSC reform and additional permanent seats allocated to emerging powers, the R2P discourse might be negatively impacted with the possible return of a more dominant principle of sovereign equality.27 There is little doubt that all the BRICS members have the required ‘bargaining chips’ to influence the global diplomatic agenda: diplomatic clout and the ability to project enforcement capacity.28 All five of these states dispose of tangible power (military might and economic prowess)29 combined with intangible power in the form of influence and reputation. They are active contributors to UN peacekeeping missions and the common thread in their approach to international military operations is a strong commitment to multilateralism and support for UN oversight over actions under Chapter VII of the UN Charter. But many other, including much weaker, states can claim the same approach. The question is whether the rhetoric about their normative preferences in combination with the material capabilities to underwrite the implementation thereof at the international level, amounts to actual leadership in matters of global peace and security. This is a rather obvious requirement for states that hold, or declare themselves eligible for, a permanent seat at the highest table of global governance. The pursuit of status and power as a goal in itself, versus the pursuit thereof as a means towards playing a normative role at the international level, is therefore at issue. The question arises whether the BRICS states have shown leadership in decisions on the operationalization of R2P. As a coincidence all five of them served on the Security Council during 2011, and the debate on an R2P intervention in Libya therefore offered rare insight into their simultaneous voting behaviour related to the norm. The adoption of resolution 1973 saw Russia, China, India, and Brazil abstaining, while South Africa supported the resolution, in tandem with the other two African states that were non-​permanent members of the Council that year (Nigeria and Gabon). In this regard South Africa’s more ‘active’ voting could be explained by the fact that the impending humanitarian crisis in Libya was closer to home, on African soil, and therefore vicariously experienced as more urgent. In any event, the South African position soon turned to recrimination, echoing the sentiments expressed by the other BRICS members, as it became evident that the NATO-​led intervention was overstepping its mandate in Libya.30 Subsequent debate on the humanitarian crisis in Syria saw all five BRICS members united in resistance to ‘foreign-​imposed regime change’.31 From the voting behaviour on Libya, some commentators have deduced that the Western P3 provided leadership in R2P implementation, while revisionist non-​Western powers such as Russia, China, India, and Brazil (and South Africa, after its U-​turn on the decision) were ambivalent to the point of being irresponsible.32 But this verdict is captive to the assumption that R2P is an unambiguous and custom-​based normative regime. The contrary is true, and the concerns expressed by BRICS members reflect what Edward Newman describes as ‘tensions about the legitimacy and authority of norm diffusion, collective decision-​making and international institutions’.33 Clearly, some of the key principles of R2P are ‘in the eye of the beholder’. It is to these alternative views that we now turn.

214    Faith Mabera and Yolanda Spies

R2P: A Matter of Perspective The contestation that marks the R2P debate is generated primarily by the norm’s interrogation of sovereignty. The debate illustrates the tension between pluralist accounts of human rights associated with a Westphalian statist world-​view, anchored in non-​ intervention, and a more solidarist world-​view committed to the notion of conditional sovereignty. For instance, at the heart of R2P as expounded in the 2001 report of the ICISS, is a conditional view of sovereignty that is decidedly solidarist in nature. Conversely, the ‘R2P-​lite’ version, as promoted by the 2005 WSOD, appears to advance a pluralist world-​view. Conflict between these two world-​views is replete with broader questions around legitimacy, power constellations of the international order, and international ethics.34 The principle of state sovereignty may be of Western design, but this fundamental interstate ordering device has been universally embraced and entrenched in the contemporary international legal order. In the Global South, where (as even a cursory glance at history will show) most states fought long and hard for this legal ‘coming of age’, states are inclined to insist on an absolute view of sovereignty. In the words of Gareth Evans, they are: very proud of their newly won sovereign independence, very conscious of their fragility, all too conscious of the way in which they had been on the receiving end in the past of not very benign interventions from the imperial and colonial powers and not very keen to acknowledge the right of such powers to intervene again, whatever the circumstances.35

Beyond the West, states are therefore particularly apprehensive about revising the account of sovereignty as embedded in the Westphalian international society.36 Emerging powers, most of whom openly associate with the ‘Rest’ rather than the ‘West’, take a leading role in guarding the territorial integrity of their developing peers in the Global South. They do so individually as well as collectively, in multilateral forums such as BRICS where they create a rhetorical shield around the principle of sovereignty. Reverting thus to the constructivist emphasis on identities and interests in international relations, the matter of ‘who decides how international society should meet its responsibilities’ seems pertinent.37 Criticism against the West, following alleged mandate creep and abuse of R2P in the 2011 Libyan intervention, exposed a legitimacy fault line around procedural issues. When conflated with paragraph 139 (conferring authority over interventions on the Security Council) of the WSOD, it reaffirms Chris Reus-​ Smit’s depiction of an unreformed Security Council as one of the ‘peaks of institutional hierarchy’.38 Whether it is the ‘West against the Rest’ or some other projected fault line in international society, the R2P discourse is riddled with questions about the interplay between power and normative regimes. As arguments put forward by the sceptics during the

R2P Beyond the West    215 2005 World Summit illustrate, there is deep mistrust in the non-​Western world when it comes to any kind of intervention by the traditional powers of the Global North. The overarching concern is that R2P can be used as a ‘Trojan horse’—​a decoy for self-​ interested interventions by powerful states.39 This argument is deftly exploited by neo-​Marxists and their intellectual kin, who allege that humanitarian intervention denies the right of states to self-​determination and facilitates neo-​imperialism in postcolonial states. By the same token, political leaders of communist (or their successor) states such as China and Russia fiercely oppose the notion of intervention.40 An example of this is Russian President Vladimir Putin’s frequent and scathing criticism of the United States and its allies. In a speech during October 2014, he decried the relative value those states attach to national sovereignty and the legitimacy of a particular ruling regime. He said: We have entered a period of differing interpretations and deliberate silences in world politics. International law has been forced to retreat over and over by the onslaught of legal nihilism. Objectivity and justice have been sacrificed on the altar of political expediency. Arbitrary interpretations and biased assessments have replaced legal norms. At the same time, total control of the global mass media has made it possible when desired to portray white as black and black as white. In a situation where you had domination by one country and its allies, or its satellites rather, the search for global solutions often turned into an attempt to impose their own universal recipes. This group’s ambitions grew so big that they started presenting the policies they put together in their corridors of power as the view of the entire international community.41

Putin’s proselytizing rankles, of course, for the recipients of Russia’s own international interventions—​Ukraine being the most recent example. He is not the only leader who denounces R2P while seeming ‘to be those most aware of neglecting their own responsibility to protect and who most fear exposure of the (actual) skeletons in their closets’.42 The conflation of anti-​West and anti-​R2P rhetoric is unfortunate, because it exploits legitimate apprehension of postcolonial states about historical Western exploitation and domination. Africans in particular are cynical about the UNSC’s commitment to deal decisively and consistently with crises on the African continent. As Ademola Abass explains, ‘precedents of the Security Council’s extremely costly inaction in African conflicts (especially following state failure in Somalia and the Rwanda genocide) have left many Africans comprehensively disillusioned about leaving the implementation of R2P to the exclusive charge of the Security Council’.43 While the normative underpinnings of R2P are not rejected per se, implementation of the norm is viewed with suspicion of arbitrary or spurious intent. The Council’s track record offers a clue as to why the AU, in its Constitutive Act of 2000 and again in its Ezulwini Consensus of 2005, enshrined the organization’s right to intervene regardless of prior approval by the UNSC. The African emphasis on the importance of a regional initiative, or at least regional buy-​in, for intervention was one of the reasons for the Security Council’s swift

216    Faith Mabera and Yolanda Spies adoption of resolution 1973 in 2011. At the time there appeared to be unprecedented consensus on the intervention, especially when the League of Arab States (LAS) appealed for urgent collective action. Amidst delayed reaction from the AU’s side, the three African members of the Council all supported the intervention, and the combined Arab and African support gave regional gravitas and legitimacy to the motion. This convinced even the most resolute opponents of intervention, the Russians and Chinese, to withhold their vetoes. But the regional support was less monolithic than it had appeared. The AU position that was in the process of being articulated advocated for a much more cautious and mediated approach and, as André Mangu points out, rejected foreign intervention as a solution to the crisis.44 The AU had adopted a ‘Roadmap’ to address the situation through a political settlement and constituted an ad hoc high-level committee (comprising African Heads of States) to engage strategic external stakeholders, including the LAS, Organisation of Islamic Cooperation (OIC), European Union, and UN, in order to coordinate their response to the crisis.45 However, the Ad-​Hoc Committee was prevented from proceeding with its in situ efforts to engage with the Gadhafi regime, once the military intervention had commenced. The repercussions of the Libya intervention dealt a blow to international consensus on R2P. In some quarters it confirmed the suspicion that R2P is simply humanitarian intervention by a different name; ‘the droit d’ingérence in new clothes’ as former Brazilian Foreign Affairs Minister Celso Amorim had dismissed it.46 The criticism speaks to David Chandler’s warning that morality can be employed by power, but not inversely so.47 He identifies a lopsided relationship between realpolitik and morality within the concept of R2P and cautions against it being used as an avenue for powerful states to impose the ‘liberal peace’.48 The general trend from a non-​Western perspective has therefore been to tone down the intervention dimension of R2P, in an attempt to forestall leeway for abuse of the principle by powerful actors. Brazil demonstrated this at an early stage of the R2P debate, when Ambassador Baena Soares in his capacity as a member of the 2004 UN Secretary-​General’s High-​ Level Panel (HLP) on Threats, Challenges and Change, insisted on explicit guidelines in the application of the norm.49 In similar vein, and in response to the resultant report by Secretary-​General Annan, India’s UN Ambassador Nirupem Sen argued that R2P should not be used to confer legitimacy to an ideology of ‘military humanism’.50 On their part, China’s and Russia’s arguments at the 2005 World Summit reiterated ingrained commitment to sovereignty and non-​intervention with strong insistence that the primary responsibility to protect civilians resided with the government of the state concerned.51 Beyond the rhetoric of responsibility and the issue of political will, the reality of unequal dissemination of enforcement capacity is played up by the implications of R2P’s third pillar.52 Most states in the world are unable to execute, or contribute meaningfully to, the type of operation that NATO led during 2011. The AU, notwithstanding its own ‘Roadmap’ for resolution of the crisis, was by all accounts not institutionally equipped

R2P Beyond the West    217 to intervene.53 Its subsequent marginalization by NATO proved to be humiliating and the bitter rhetoric that ensued once again conjured up a ‘West against the Rest’ scenario. But the passive ‘passing on’ of R2P to a regional institution such as the AU, is not the answer either. Chandler makes the point that Western powers conveniently invoke the credo of ‘African solutions to African problems’, but only when it strategically suits them, and without regard to the capability of the delegated-​to entity to implement the required action.54 An important stylistic difference in the non-​Western approach is evident from procedural and temporal disputes around R2P. International relations practitioners operating in the liberal Western tradition generally value punctuality, linear progress and evidence of short-​term outcomes in multilateral projects, whereas their non-​Western counterparts tend to favour inclusive (hence usually slower) processes and a holistic approach to human relations. The past is treated with the same reverence as the future, and it follows that there can be no ‘quick fixes’ for sensitive issues: the implications are invariably long-​term. In the deliberations around resolution 1973 (2011) on Libya, both Russia and Brazil made statements justifying their abstentions in terms of uncertainty about the long-​term consequences of enforcement action.55 Proponents of a holistic approach (which is incidentally also accentuated in the 2001 ICISS report) demand adherence to the full continuum of conflict resolution strategies: the key R2P tenets of responsibility to prevent and responsibility to rebuild are therefore highlighted, rather than simple knee-​jerk reaction to crisis situations. The growing anarchy in post-​Gadhafi Libya attests to the fact that the 2011 intervention might have solved one crisis, but spawned others. It certainly failed in both the prevention and rebuilding responsibilities of the international community During November 2011, in response to mounting backlash against the manner in which resolution 1973 was implemented, Brazil introduced a concept note on responsibility while protecting (RwP) to the UNSC.56 The document sought to strengthen the conceptual parameters of R2P by highlighting certain key conditions, including the idea that all ‘three pillars of R2P must follow a strict line of political subordination and chronological sequencing’; ‘comprehensive and judicious analysis of the possible consequences of military action’; explicit authorization by the UNSC with respect to use of force; and accountability on the part of implementers of enforcement action. The Brazilian contribution addressed a major shortcoming in the R2P doctrine, namely the issue of accountability once external actors have been mandated to intervene in a humanitarian crisis. Closely linked to this is the Chinese notion of responsible protection, which demands tough criteria for military interventions, accountability, and a focus on prevention as the central endeavour of R2P.57 RwP and responsible protection both relate to Acharya’s notion of norm subsidiarity, in which states challenge or resist attempts by more powerful states to marginalize or abuse global norms.58 Taken together, the Brazilian initiative and the Chinese proposition can be regarded as a form of agency and feedback that is pivotal to R2P’s normative development in the aftermath of the Libyan intervention.59

218    Faith Mabera and Yolanda Spies

Bridging the Divide: R2P and Middle Power Diplomacy The normative debates of the post-​Cold War era have coincided with a more nuanced power discourse in International Relations. The idea that power can be ‘situational’ implies qualitative consideration of state behaviour, rather than simple quantification of state power, and the evolving interstate arena has seen a surge in leadership by so-​called ‘middle powers’. Middle-​powermanship suggests a liberal-​internationalist tendency in foreign policy, with prioritization of peaceful, reciprocal tools of foreign policy rather than unilateral, coercive strategies. These states typically specialize—​and provide diplomatic leadership—​in niche areas such as disarmament, environmental affairs, and human rights; and use multilateral coalitions to galvanize the international community into action on these issues. In the realm of power, they are therefore staunchly predisposed to the use of soft power.60 Traditionally, middle powers were only found in the Global North: highly industrialized states such as Australia, Canada, the Netherlands, and the Nordic countries that are established democracies with egalitarian socio-​economic dispensations. However, over the past two decades the normative middle of international relations has increasingly expanded to include emerging powers—​inter alia Turkey, South Africa, India, Malaysia, and Brazil—​that exhibit distinct middle power behaviour. Eduard Jordaan refers to these states as ‘emerging middle powers’.61 Their ranks have been fortified by smaller states such as Ghana and Rwanda that reproduce the role of the ‘good citizens of the world’ in their respective sub-​regions. The R2P debate is a prominent example of a middle power project in the international domain. The Canadian government sponsored the ICISS and its consequent support for research on R2P has been matched by that of Australia. The landmark endorsement of R2P at the 2005 World Summit was in large part due to the efforts of these two states, aided by ‘sherpas’ from the developing world, such as South Africa and Rwanda, who helped to build consensus beyond the West.62 Middle powers, intent as they are on bridging interstate divides, have done much to avoid the ‘West against the Rest’ template in the R2P discourse. Following the WSOD, and intensifying after Secretary-​General Ban’s call in January 2009, the General Assembly embarked on dedicated debate on the implementation of R2P. The portrayal of R2P as a North–​South polarizing issue was dispelled by the active involvement of various states across all regions of the world. An example of collective middle-​ powermanship was seen during the 2009 UNGA debate, when a coalition of pro-​R2P states known as ‘Group of Friends of R2P’ emerged: a group comprising 30 states straddling the developed and developing worlds, chaired by Canada and Rwanda. Another example occurred during 2010 with the founding of the R2P Focal Points Initiative63 by the governments of Denmark and Ghana. They were soon joined by Australia, Costa Rica, and over 30 other countries. Initiatives such as these are hailed by R2P

R2P Beyond the West    219 proponents as evidence of the ‘community of commitment’ that propels global diffusion of the norm.64 Andrew Hurrell contends that there is a glaring need to focus on the role of middle powers and the would-​be role of ‘middle-​ground’ ethics in impacting normative orders.65 His point is echoed by Gareth Evans who makes a case for: the kind of diplomacy which can, and should, be practised by states which are not big or strong enough, either in their own region or the wider world, to impose their policy preferences on anyone else; but who do recognize that that there are international policy tasks which need to be accomplished if the world around them is to be safer, saner, more just and more prosperous (with all the potential this has, in turn, to affect their own interests); and who have sufficient capacity and credibility to be able to advance those tasks.66

Inevitably, from a non-​Western perspective, the moral imperative contained in Evans’s statement is not as straightforward as it sounds. The ‘policy tasks which need to be accomplished’, especially to make the world a ‘more just’ place, are contingent on one’s view of the world—​and of what is wrong with the world. In this regard the foreign policy agenda and style of emerging middle powers differ markedly from those of their traditional counterparts in the Global North. They are much more assertive and revisionist when it comes to global governance, and openly seek regional and global leadership positions. This is in stark contrast to traditional middle powers, who emphatically shun the opportunity to lobby for permanent UNSC membership and participation in the arms race. It is a moot question whether emerging middle powers—​India for example, with its nuclear weapons status—​would be able to resist the allure of structural power, and the potential to abuse R2P.

Conclusion Two seminal moments in the political journey of R2P were highlighted in this chapter: the 2005 World Summit and the norm’s 2011 application, through Security Council resolution 1973, to the humanitarian crisis in Libya. The latter event in particular opened up a Pandora’s Box of unresolved tensions at the heart of international society, and belied the 2005 veneer of universal consensus on R2P. It would be folly to view the normative journey of R2P in isolation of the context(s) in which it is emerging, and the material realities and ideational variables that define the evolving global order. Indeed, the assumption of one-​way norm entrepreneurship and socialization acts as a blinker to the ideational and temporal agency of non-​Western actors. The heterogeneity of international society in itself portends elusive consensus on any new norm, and the increase in the range of interests and values, in combination with new evolving identities within international society, has caused contestation at every

220    Faith Mabera and Yolanda Spies level of R2P’s development. From differing perspectives on the norm’s ownership, the pathways of its diffusion, and the agenda attached to its operationalization, it seems as though R2P has interrogated the very foundations of international society: its rules of engagement. A recent trend in international studies is to pit the Global North against the Global South, or the ‘West against the Rest’, and the debate on R2P is no exception. There is value in this analytical approach (the juxtaposition of opposing perspectives) but also inherent danger, because a ‘them-​and-​us’ approach is prone to simplistic, sweeping assumptions. The world beyond the West may be united in lingering mistrust of Western altruism—​hence the suspicion that R2P is a subterfuge for hegemonic aspirations—​but it is certainly no less prone to realpolitik, normative rifts, and reproductions of structural power hierarchies. Perceptions of a power shift in the international system have been reinforced by the behaviour of emerging powers from the non-​Western world. Examples of these are the BRICS countries that have been resisting their historical designation as passive and subordinate norm-​takers. The preferences, capabilities, and strategies projected by the BRICS in the international arena increasingly confirm their decisive impact on normative discourses, and the R2P debate is a case in point. The Brazilian initiative of responsibility while protecting and the Chinese notion of responsible protection are examples of attempts to restore the balance between solidarist and pluralist approaches to R2P, and to check the potential for abuse by the more powerful actors. The polarizing juxtaposition of the ‘West’ and whatever lies beyond it has been mitigated to an extent by the activity of states that operate in the normative middle of world politics. In this foreign policy space, traditional middle powers such as Canada and Australia have been joined by emerging middle powers like South Africa, Brazil, and India that prioritize multilateralism and seek to bridge the schisms in the interstate domain. They are the normative sherpas of the world, and their role in international society is crucial: they have to lead by example and socialize other states into the values and norms of international society, even when such common institutions and patterns of interaction are in flux. R2P is widely considered a liberal norm, but in our opinion it is a radical norm. It seems designed for a world that is not (yet) institutionally or legally equipped to deal with its implications. At the same time it has already left an indelible imprint on the narratives within international society, where the R2P discourse has been driven by the normative middle. Emerging middle powers, in particular, are essential to the debate because these states are, in many ways, microcosms of the contradictions within international society.

Notes 1. In his 2009 report Implementing the Responsibility to Protect, UN Secretary-​General Ban Ki-moon proposed a three-​pillar approach towards implementation: pillar one spells out the primary protection responsibilities of states towards their own populations, while

R2P Beyond the West    221 pillar two places responsibility on the international community to assist individual states with their R2P capacity-​building. Pillar three stipulates timely and decisive response by the international community in cases where states are unable or unwilling to protect a population at risk (UNGA 2009). 2. Bull 1977, pp. 13, 172. 3. Acharya 2011; Bellamy 2005; Finnemore and Sikkink, 1998, 2001. 4. Adler-​Nissen 2014, p. 149. 5. Jabri 2014, p. 373. 6. Brown 2013; Epstein 2014; Zarakol 2014. 7. Bhabha 1994, p. 245; Jabri 2014, p. 378. 8. Putin 2014; Richmond and Tellidis 2013, p. 4. 9. Stuenkel 2012. 10. Williams 2009, p. 413. 11. Africa dominates the Security Council agenda in terms of the sheer number of unresolved conflicts and humanitarian crises on the continent. As a result, Africa has hosted the UN’s largest and most numerous peacekeeping missions. 12. The Prize was jointly awarded to the UN and its Secretary-​General. The selection committee pointed out, however, that Kofi Annan was singled out because ‘[i]‌n an organisation that can hardly become more than its members permit, he has made clear that sovereignty cannot be a shield behind which member states conceal [human rights] violations’ (Norwegian Nobel Committee 2001). 13. Luck 2008. 14. In 1998, Martha Finnemore and Kathryn Sikkink addressed the diffusion of norms by putting forward a three-​stage life cycle: norm emergence, norm cascade, and norm internalization. Their model suggests a ‘tipping point’ between the first two stages, when a critical mass of state actors adopts the norm. The third stage, norm internalization, is marked by a ‘taken-​for-​granted quality’, where the norm in question ceases to be an issue of public contestation (a point clearly not reached in the case of R2P!). 15. Weiss 2007, p. 116. 16. Africa and Pretorius 2012, p. 400. 17. Welsh 2013, p. 366. 18. Setting out what is meant by a ‘critical mass of states’ goes beyond quantitative calibration to take into account whether or not pivotal states (or states that adequately ‘represent’ the world) have endorsed the norm under examination. This raises more questions about identity and interests of the actors who reach the consensus—​in the case of resolution 1973, the controversial structural composition of the UNSC. 19. Barnett and Duvall 2005, p. 39. 20. We are not arguing that the collective BRICS, as a multilateral organization, purports to have a normative international agenda. As Andrew Cooper (2010, p. 69) has pointed out, the club is ‘largely silent on most political, strategic and social matters’. 21. Richmond and Tellidis 2013, p. 5. 22. Kahler 2013, p. 712. 23. AU 2005; Luck 2006, pp. 120, 121. 24. Zuma 2011. 25. Armijo and Roberts 2014, p. 511. 26. BRICS 2011. 27. Welsh 2010, p. 246. 28. Kahler 2013.

222    Faith Mabera and Yolanda Spies 29. All emerging powers have a degree of hard power, even if only relative to a respective region, as in the case of South Africa. 30. Moore 2011. 31. Putin 2014; Walt 2011. 32. Patrick 2010; Schweller 2011. 33. Newman 2013, p. 236. 34. Newman 2013, p. 236. 35. Evans 2009, p. 3. 36. Brown 2013, p. 19. 37. Ralph and Gallagher 2015, p. 561. 38. Reus-​Smit 2005, p. 90. 39. Bellamy 2005, p. 39. 40. Bellamy 2009, p. 27; Sarkin 2009, p. 14. 41. Putin 2014. 42. Spies and Dzimiri 2011, p. 3. 43. Abass 2012, p. 218. 44. Mangu 2012, p. 7. 45. African Union PSC 2011. 46. Spektor 2012. 47. Chandler 2004, p. 76. 48. Chandler 2004, p. 76. 49. Stuenkel and Tourinho 2014, p. 387. 50. Bellamy 2009, p. 88. 51. Putin 2014; Rotmann et al. 2014, p. 11. 52. Stuenkel 2012. 53. Nganje 2011, p. 3. 54. Chandler 2011, p. 30. 55. Brazil 2011a; Russian Federation 2011. 56. Brazil 2011b. 57. Evans 2013. 58. Acharya 2011. 59. Evans 2012. 60. Behringer 2013, p. 14. 61. Jordaan 2003, p. 165. 62. Pollentine 2013, p. 50. 63. R2P Focal Points are senior government officials responsible for analysis of mass atrocity risk situations and crafting suitable early responses to prevent occurrence of mass atrocities. 64. Adams 2014; Badescu 2011; Serrano 2011. 65. Hurrell 2013, p. 222. 66. Evans 2011.

References Abass, Ademola (2012). ‘The African Union and the Responsibility to Protect:  Principles and Limitations’, in Julia Hoffmann and André Nollkaemper (eds.), Responsibility to Protect: From Principle to Practice (Amsterdam: Amsterdam University Press), pp. 213–​36.

R2P Beyond the West    223 Acharya, Amitav (2011). ‘Norm Subsidiarity and Regional Orders: Sovereignty, Regionalism, and Rulemaking in the Third World’, International Studies Quarterly 55(1): 95–​123. Adams, Simon (2014). ‘R2P:  A  Norm of the Past or Future?’ Comment for Open Canada, Reflections on R2P 20 years since Rwanda, 28 February 2014. . Adler-​Nissen, Rebecca (2014). ‘Stigma Management in International Relations: Transgressive Identities, Norms, and Order in International Society’, International Organization 68(1): 143–​76. Africa, Sandy and Rentia Pretorius (2012). ‘South Africa, the Africa Union and the Responsibility to Protect: The Case of Libya’, African Human Rights Journal 12(2): 394–​416. African Union (AU) (2000). The Constitutive Act of the AU. . African Union (AU) (2005). The Common African Position on the Proposed Reform of the United Nations: ‘The Ezulwini Consensus’ (Addis Ababa: African Union). African Union Peace and Security Council (PSC) (2011). Communiqué of the 265th Meeting of the Peace and Security Council, PSC/​PR/​COMM.2 (CCLXV), 10 March. . Armijo, Leslie Elliott and Cynthia Roberts (2014). ‘The Emerging Powers and Global Governance:  Why the BRICS Matter’, in Robert E.  Looney (ed.), Handbook of Emerging Economies (New York: Routledge), pp. 503–​24. Badescu, Cristina G. (2011). Humanitarian Intervention and the Responsibility to Protect: Security and Human Rights (New York: Routledge). Barnett, Michael and Raymond Duvall (2005). ‘Power in International Politics’, International Organization 59(1): 39–​75. Behringer, Ronald M. (2013). ‘The Dynamics of Middlepowermanship’, Journal of Diplomacy & International Relations 14(2): 9–​22. Bellamy, Alex J. (2005). ‘Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention after Iraq’, Ethics and International Affairs 19(2): 31–​53. Bellamy, Alex J. (2009). Responsibility to Protect:  The Global Effort to End Mass Atrocities (Cambridge: Polity Press). Bhabha, Homi K. (1994). The Location of Culture (London and New York: Routledge). Brazil, Federative Republic of (2011a). Statement by Brazil’s permanent representative to the UN (Viotti) during 6498th meeting of the UNSC 17 March 2011 (S/​PV.6498). . Brazil, Federative Republic of (2011b). ‘Responsibility while Protecting:  Elements for the Development and Promotion of a Concept’. Concept Paper:  Annex to the letter dated 9 November 2011 from the Permanent Representative of Brazil to the United Nations addressed to the Secretary-​General, UN Doc A/​66/​551-​S/​2011/​701. . BRICS (2011). Third Summit: The Sanya Declaration. Sanya (PRC). . Brown, Chris (2013). ‘Sovereignty vs. Human Rights in a Post-​Western World?’ Paper presented at Normative Challenges to International Society: Rising Powers and Global Responses, 2nd Seminar, ESRC Seminar Series, Chatham House, London, 22 March. Bull, Hedley (1977). The Anarchical Society:  A  Study of Order in World Politics (New  York: Columbia University Press). Chandler, David (2004). ‘The Responsibility to Protect? Imposing the Liberal Peace’, Inter­ national Peacekeeping 11(1): 59–​81.

224    Faith Mabera and Yolanda Spies Chandler, David (2011). ‘Understanding the Gap between the Promise and the Reality of the Responsibility to Protect’, in Philip Cunliffe (ed.), Critical Perspectives on the Responsibility to Protect: Interrogating Theory and Practice (Abingdon: Routledge), pp. 19–​34. Cooper, Andrew F. (2010). ‘Labels Matter: Interpreting Rising States through Acronyms’, in Alan S. Alexandroff and Andrew F. Cooper (eds.), Rising States, Rising Institutions: Challenges for Global Governance (Waterloo, Ont.: Brookings Institution and Centre for International Governance Innovation), pp. 63–​82. Deng, Francis M. (1995). ‘Frontiers of Sovereignty’, Leiden Journal of International Law 8(2): 249–​86. Epstein, Charlotte (2014). ‘The Postcolonial Perspective: An Introduction’, International Theory 6(2): 294–​311. Evans, Gareth (2009). Statement made during the Interactive Thematic Dialogue of the United Nations General Assembly on the Responsibility to Protect. New York, 23 July. . Evans, Gareth (2011). ‘Middle Power Diplomacy’. Inaugural Edgardo Boeninger Memorial Lecture by Professor the Hon Gareth Evans, Chancellor of The Australian National University, President Emeritus of the International Crisis Group and former Foreign Minister of Australia, Chile Pacific Foundation, Santiago, 29 June 2011. . Evans, Gareth (2012). Interview with Gareth Evans by Alan Philips for The World Today, Chatham House, October. . Evans, Gareth (2013). ‘Protecting Civilians Responsibly’. Project Syndicate, 25 October. . Finnemore, Martha and Kathryn Sikkink (1998). ‘International Norm Dynamics and Political Change’, International Organization 52(4): 887–​917. Finnemore, Martha and Kathryn Sikkink (2001). ‘Taking Stock: The Constructivist Research Program in International Relations and Comparative Politics’, Annual Review of Political Science 4(1): 391–​416. Hurrell, Andrew (2013). ‘Power Transitions, Emerging Powers, and the Shifting Terrain of the Middle Ground’, in Cornelia Navari (ed.), Ethical Reasoning in International Affairs: Arguments from the Middle Ground (Basingstoke: Palgrave Macmillan), pp. 222–​45. Jabri, Vivienne (2014). ‘Disarming Norms: Postcolonial Agency and the Constitution of the International’, International Theory 6(2): 372–​90. Jordaan, Eduard (2003). ‘The Concept of a Middle Power in International Relations: Distinguishing between Emerging and Traditional Middle Powers’, Politikon: South African Journal of Political Studies 30(1): 165–​81. Kahler, Miles (2013). ‘Rising Powers and Global Governance: Negotiating Change in a Resilient Status Quo’, International Affairs 89(3): 711–​29. Luck, Edward C. (2006). UN Security Council: Practice and Promise (Abingdon: Routledge). Luck, Edward C. (2008). Statement by the Special Adviser to the UN Secretary-​General at the Arria Formula meeting on the Responsibility to Protect, 1 December. . Mangu, Andre Mbata B. (2012). ‘The Arab Spring and the African Union’s Reaction to the Crisis, Use of Force, Regime Change, and Assassination of the Leader of the Great Socialist People’s Libyan Arab Jamahiriya’, Africa Insight 42(1): 1–​12.

R2P Beyond the West    225 Moore, Candice (2011). ‘South Africa’s About-​Turn on Libya: Is Speaking with the AU/​BRIC Majority Defending the Indefensible?’ LSE Ideas, 26 July. . Newman, Edward (2013). ‘R2P: Implications for World Order’, Global Responsibility to Protect 5(3): 235–​59. Nganje, Fritz (2011). ‘The UN Security Council Response to the Libyan Crisis: Implications for the African Agenda’, IGD Occasional paper, Global Insight 93, December. Norwegian Nobel Committee (2001). ‘The Nobel Peace Prize 2001’. Press Release, 12 October, Oslo, Norway. Patrick, Stewart (2010). ‘Irresponsible Stakeholders? The Difficulty of Integrating Rising Powers’, Foreign Affairs 89(6): 44–​53. Pollentine, Marc (2013). ‘Constructing the Responsibility to Protect’. PhD Dissertation, Cardiff University, School of European Languages, Translation and Politics. Putin, Vladimir (2014). Speech by the President of the Russian Federation at the XI meeting of the Valdai International Discussion Club, 24 October, Sochi. . Ralph, Jason and Adrian Gallagher (2015). ‘Legitimacy Faultlines in International Society: The Responsibility To Protect and Prosecute after Libya’, Review of International Studies 41(3): 553–​73. Reus-​Smit, Chris (2005). ‘Liberal Hierarchy and the License to Use Force’, Review of Inter­ national Studies 31(S1): 71–​92. Richmond, Oliver P. and Ioannis Tellidis (2013). ‘The BRICS and International Peacebuilding and Statebuilding’. Norwegian Peacebuilding Resource Centre, NOREF Report, January, Oslo, Norway. Rotmann, Philipp, Gerrit Kurtz, and Sarah Brockmeier (2014). ‘Major Powers and the Contested Evolution of a Responsibility to Protect’, Conflict, Security & Development 14(4): 1–​23. Russian Federation (2011). Statement by the Russian Federation’s permanent representative to the UN (Churkin) during the 6498th meeting of the UNSC, 17 March (S/​PV.6498). . Sarkin, Jeremy (2009). ‘The Role of the United Nations, the African Union and Africa’s Sub-​ Regional Organisations in Dealing with Africa’s Human Rights Problems:  Connecting Humanitarian Intervention and the Responsibility to Protect’, Journal of African Law 53(1): 1–​33. Schweller, Randall (2011). ‘Emerging Powers in an Age of Disorder’, Global Governance 17(3): 285–​97. Serrano, Monica (2011). ‘The Responsibility to Protect and its Critics:  Explaining the Consensus’, Global Responsibility to Protect 3(4): 425–​37. Spektor, Matias (2012). ‘Humanitarian Interventionism Brazilian Style?’, Americas Quarterly 6(3): 54–​5. Spies, Yolanda K. and Patrick Dzimiri (2011). ‘A Conceptual Safari: Africa and the R2P’, Regions and Cohesion 1(1): 32–​53. Stuenkel, Oliver (2012). ‘Who Will Write about R2P’s African Origins?’, Post-​Western World, 9 December. . Stuenkel, Oliver and Marcos Tourinho (2014). ‘Regulating Intervention:  Brazil and the Responsibility to Protect’, Conflict, Security & Development 14(4): 379–​402.

226    Faith Mabera and Yolanda Spies United Nations General Assembly (2005). World Summit Outcome Document, adopted by UN General Assembly Resolution A/​RES/​60/​1, 24 October, paragraphs 138–​40. . United Nations General Assembly (2009). Implementing the Responsibility to Protect: Report of the Secretary-​General, A/​63/​677, 12 January. Walt, Stephen M. (2011). ‘Learning the Right Lessons from Libya’, Foreign Policy, 29 August. . Weiss, Thomas G. (2007). Humanitarian Intervention:  Ideas in Action (Cambridge:  Polity Press). Welsh, Jennifer (2010). ‘Implementing the “Responsibility to Protect”:  Where Expectations Meet Reality’, Ethics & International Affairs 24(4): 415–​30. Welsh, Jennifer M. (2013). ‘Norm Contestation and the Responsibility to Protect’, Global Responsibility to Protect 5(4): 365–​96. Williams, Paul D. (2009). ‘The Responsibility to Protect, Norm Localization and African International Society’, Global Responsibility to Protect 1(3): 392–​416. Zarakol, Ayse (2014). ‘What Made the Modern World Hang Together:  Socialisation or Stigmatisation?’, International Theory 6(2): 311–​32. Zuma, Jacob G. (2011). Address by the President of the Republic of South Africa to the plenary of the third BRICS leaders meeting, Sanya, Hainan Island, People’s Republic of China, 14 April. .

Chapter 13

T he Resp on si bi l i t y Not to V eto A Responsibility Too Far? Justin Morris and Nicholas J. Wheeler

Given that the International Commission on Intervention and State Sovereignty (ICISS) compiled its 2001 report on the ‘responsibility to protect’ (R2P) in the immediate aftermath of, and in significant part as a response to, United Nations Security Council (UNSC) deadlock over the humanitarian crisis in Kosovo, there is little wonder that it should declare that ‘it is unconscionable that one veto can override the rest of humanity on matters of grave humanitarian concern’.1 For a fleeting moment the passage in 2011 of UNSC resolution 19732—​authorizing the limited use of force to protect civilians from the government’s ‘gross and systematic violations of human rights’ during civil unrest in Libya—​suggested that such sentiments may be permeating thinking in the world’s most influential diplomatic forum, as Russia and China chose to abstain rather than veto provisions over which they clearly harboured significant concerns.3 However, the Council deadlock that subsequently followed over Syria served to dash such hopes. Council inertia over Syria highlights two aspects of international inadequacies in addressing gross human rights violations: first, in the aftermath of the conflicts in Iraq and Afghanistan, even traditionally pro-​interventionary Western states are becoming increasingly reticent over the deployment of forces into complex civil conflicts and are more likely to suggest remedial actions which fall far short of such measures; and second, even in the face of the most extreme human suffering, the UNSC remains vulnerable to veto-​induced paralysis irrespective of the disapprobation which may ensue. This chapter focuses on the second of these issues and in particular on what, in relation to R2P, has been termed the ‘responsibility not to veto’ (RN2V).4 It begins by outlining the original reasons behind the granting of the veto power to the UNSC’s five permanent members (the P5), first because prudence dictates that any contemplation of normative change takes account of the reasons for which the norm was initially instigated, and second because whilst RN2V-​advocates often question the continuing

228    Justin Morris and Nicholas J. Wheeler relevance and appropriateness of the 1945 settlement to today’s world, for the P5, the logic of San Francisco remains highly salient. Building on this historical and normative foundation, the chapter examines the ICISS’s initial proposal to limit the P5 veto, the initiative’s jettisoning at the 2005 World Summit, and subsequent attempts to reintroduce the idea of veto-​restraint into UNSC practice. Finally the chapter turns to an assessment of the prospects for, and pros and cons of, veto-​restriction. It argues that, despite support for RN2V being widespread within international society, the unwillingness of the P5 (with the exception of France) to accept calls for curtailment of their voting privileges is unlikely to change in the foreseeable future. Furthermore, the chapter maintains that calls for such restriction are highly problematic, since they are premised on an ill-​ conceived notion that R2P can transcend great power cleavages in international society, whether these stem from principles of prudence, conflicting value systems, or the play of self-​interest and great power jockeying for position.

The Power of Veto in the UN Charter In accordance with Article 27(3) of the UN Charter ‘[d]‌ecisions of the Security Council on all [non-​procedural] matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members’, namely China, France, Russia, the United Kingdom, and the United States. This power of veto vested in the P5 had a troubled gestation, giving rise to acrimonious debate, first amongst the great powers (primarily the USSR, the United Kingdom, and the United States, the so-​called ‘Big Three’) which set about the task of building the UN, and later between the great powers and those lesser powers whose signatures they sought to secure at the San Francisco conference at which the Charter was finally approved. A detailed chronicling of this discord lies outside of the remit of this chapter. Nevertheless, it is worth taking time to consider the veto-​related arguments aired in 1945 since many of these remain germane to today’s debates over whether, and in what circumstances, steps aimed at alleviating gross human suffering should be subject to the exercise of this P5 voting privilege. Indeed today, just as in 1945, the veto has totemic status, signifying the degree to which the P5, as opposed to the wider UN membership, can determine the direction and scope of the organization’s activities. As the Second World War drew to a close there was certainly no doubt in the minds of the leaderships of the Big Three that the post-​war peace should be theirs to determine. Even as Franklin Roosevelt’s initial notion of ‘peace by dictation’5 gave way to more inclusive notions of post-​war organization, the veto power and the ability which it would give the great powers to steer the UN remained a sine qua non. In part this reflected their desire to ensure that the new organization’s structure and procedures paid due homage to the status and prestige of those states most responsible for delivering victory in the war and wielding the power necessary to ensure a peaceful future.6 In similar vein, the coveting of the constitutional protection which the veto provided was

The Responsibility Not to Veto    229 also motivated in part by specific national concerns: for the Soviets the veto constituted a safeguard against the isolation, expulsion, and vilification which they had experienced during the years of the League of Nations and which still loomed large in the national memory;7 for the United Kingdom it could stymie US and Soviet attempts to mobilize the UN towards the dismemberment of the empire;8 and for US leaders the veto served as a crucial counter to potential Senate opposition which, in its absence, could lead to a repeat of the League experience of US non-​ratification.9 But beyond these somewhat narrow, self-​serving considerations lay genuine concerns over how best to establish and shape a global organization which could prevent the reoccurrence, as the Charter’s Preamble would eventually put it, of ‘the scourge of war, which twice in . . . the lifetime [of those responsible for creating the UN had] brought untold sorrow to mankind’. In this context the veto served less as a great power privilege and shield than as an aid to the maintenance of the great power accord deemed essential for the successful functioning of the organization. Such reasoning flowed easily from recent experience; the successful prosecution of the war had been premised on great power unanimity and its continuation was thus accepted as ‘the Grundnorm for the post-​war-​ cooperation of the major victors’.10 Likewise, whilst the League of Nations might to some degree have been hampered by a near universal right to veto decisions, a more circumscribed and appropriately apportioned veto would prove beneficial, serving both as a safeguard against imprudent actions and most importantly of all as ‘a guarantee that the United Nations would include the great powers among its numbers’.11 An appreciation of the veto as the guarantee for great power participation in the UN, as the price to be paid in order to avoid the calamities which befell the League due to the paucity of the great power support which it received, is crucial to any understanding of the organization’s history. The notion should not, however, be exaggerated. First, the lesser powers gathered in San Francisco were fully cognizant of the fact that any descent from great power cooperation to conflict could only spell disaster for them, caught, as they surely would be, in the crossfire and fallout. Consequently, as Inis Claude explains, they supported ‘the philosophy of the veto [namely] that it is better to have the Security Council stalemated than to have that body used by a majority to take action so strongly opposed by a dissident great power that a world war [would] likely . . . ensue’.12 Viewed from this perspective, the veto was intended to operate as a ‘fuse . . . a deliberately created weak point in the line, designed to . . . interrupt the flow of power whenever circumstances make the continued operation of the circuit dangerous’.13 Second—​and more positively—​the lesser powers recognized that the success of collective security depended on the continued great power collaboration which the veto was intended to augment. With the veto in place it followed that any resolution which passed successfully through the Council would have their backing, in turn ensuring a level of congruence between proposed action and the power required to bring about its successful execution.14 The prevailing mindset amongst the San Francisco delegates was that the great powers were so central to the UN project that compromise on erstwhile sacrosanct principles was both inevitable and warranted. This sentiment was captured well by the

230    Justin Morris and Nicholas J. Wheeler Columbian delegate when he acknowledged the ‘aim of adjusting our conduct to reality’ and the need for ‘juridical equality . . . to be subordinated to political responsibility’ in recognition of the fact that ‘some [states] have more responsibilities and greater duties than the rest for the security of the world, and must consequently be in possession of better means to comply with their responsibilities’.15 Accordingly, whilst questions were raised over the appropriateness of the veto’s application to issues such as the right to debate, pacific settlement of disputes, and Charter reform,16 neither the basic concept per se, nor its exercise in relation to the UNSC’s key enforcement activities attracted significant opposition.17 With the central principle effectively beyond diplomatic reproach, the opportunity to debate the more peripheral aspects of the veto served to further nullify opposition to it,18 particularly given the reassurances offered regarding the manner in which it would be exercised. The P5 would, the US delegate reassured the assembled delegates: discharge the duties of their office not as representatives of their governments, not as representatives of their own ambitions or their own interests, but as representatives of the whole Organization on behalf of world peace and on behalf of world security.19

The high-​handed manner in which the great powers ultimately sought to draw discussion over the veto to a close threatened to undermine much of the progress which the opportunity to debate had itself furnished20 and served to further heighten the determination of those more sceptical delegates to hold the great powers to account against the reassurances they had given. It is in this context that we must read the final remarks of the Australian delegate Herbert Evatt, the harshest of veto critics who said: Now that the struggle is finished and the [great powers] have been victorious in their unrestricted retention of the right of veto, the onus is on them. We of the smaller nations will watch very closely how it is exercised in the future.21

Limiting the Veto and the ‘Responsibility Not to Veto’ On 17 January 1946, seven months after Evatt’s thinly veiled ultimatum, the UNSC sat for the first time. It would be less than a month before ‘many observers’ were ‘astounded’ to see the first veto cast over what most deemed to be a ‘relatively minor matter’.22 Only ten months after this the UN General Assembly (UNGA) ‘earnestly request[ed]’ that the P5 ‘make every effort . . . to ensure that the use of the [veto] does not impede the Security Council in reaching its decisions’.23 This was the first in a long series of so far unsuccessful attempts to ensure that P5 states adopt what many would see as a more appropriately

The Responsibility Not to Veto    231 circumspect approach to the employment of their voting privilege.24 With 267 vetoes having been cast since the UN’s creation25—​often to protect particular allies whose behaviour has incurred the wrath of the vast majority of the UN membership—​and the UNSC having been effectively paralysed throughout the years of the Cold War, it is tempting to conclude that the great powers have reneged on their San Francisco promise. Against the basic numbers and record of inertia which support such a judgement we must, of course, weigh key counter-​points: the fact that the Charter itself ‘imposes no conditions upon the exercise of the veto’,26 the original ‘fuse’ rationale for the veto, and the ‘analytic caution’ which the ‘arbitrary and artificial quality’ of veto-​related statistics necessitates.27 Nevertheless, few will have been surprised when, almost seven decades after Evatt uttered his warning, Richard Butler, former Australian Permanent Representative to the UN, concluded that the P5 had failed his predecessor’s implied test. According to Butler: The Permanent Five have behaved . . . in ways that suggest that they see the power that they hold as rightful and free, to be exercised by them in whatever manner they choose. [They have] the idea that they have a power that they can use to protect and extend their own individual national interests. This selfish outlook is often not consistent with the purposes and principles of the Charter.28

No less predictable is the P5’s rejection of allegations that they have misused their veto privilege or, indeed, that they have exercised it in an unrestrained manner.29 Moreover, even whilst deeply divided on other issues, the P5 throughout UN history have almost without fail30 maintained concerted opposition to veto reform, thus stymieing any chance of Charter amendment.31 In today’s less hierarchical and deferential world the veto may, as the Malaysian ambassador told the chamber in 2012, make the Council appear as though it is ‘operat[ing] in a time warp’.32 But with the P5’s collective opposition underpinned by an unassailable combination of material, diplomatic, and constitutional33 advantages, reform-​oriented members currently remain resigned to the idea that ‘bypassing substantial veto reform’34 is likely to prove necessary in order to secure other amendments to the Council’s composition and working practices. This is the somewhat inauspicious context in which ICISS made its highly ambitious attempt to institutionalize veto-​restraint, recommending that: The Permanent Five members of the Security Council should agree not to apply their veto power, in matters where their vital state interests are not involved, to obstruct the passage of resolutions authorizing military intervention for human protection purposes for which there is otherwise majority support.35

The Commission’s call for a new P5  ‘code of conduct’ to limit the veto was a direct response to events during the humanitarian crisis in Kosovo in 1998–​9 where, faced with the threat of a near-​certain veto by Russia (and the likelihood of the same by China), NATO members chose to take military action without first seeking explicit UNSC

232    Justin Morris and Nicholas J. Wheeler authorization to do so.36 The ICISS recommendation built on what was originally a French suggestion,37 but the Commission was very careful to hedge its proposed restrictions on the veto in two specific ways: first, the P5 are afforded the opportunity to block Council action by playing the trump card of ‘vital state interests’; and second, members of the P5 are only required not to cast a negative vote if a resolution has secured the nine votes required under the Charter to otherwise be adopted. Critical of the veto as an anachronism ill-​suited to the modern democratic age, the then Secretary-​General Kofi Annan’s High-​Level Panel on Threats, Challenges and Change echoed the ICISS proposal, urging in their 2004 report that its use be limited to ‘matters where vital interests are genuinely at stake’ and asking the P5 to ‘pledge themselves to refrain from the use of the veto in cases of genocide and large-​ scale human rights abuses’.38 But by the close of the following year’s World Summit at which the R2P concept was endorsed by the UN membership,39 all such behavioural parameters referring to the veto had been excised: an ‘invit[ation to] the permanent members of the Security Council to refrain from using the veto’40 in relation to mass atrocity crimes contained in an earlier draft outcome document had been deleted. This preserved wholly intact the P5’s unfettered right to exercise their veto in a Council whose primacy as the sole body able legitimately to authorize non-​ consensual coercive action had been unequivocally reiterated in the final outcome document. The ‘filibustering’41 head of the US delegation, John Bolton, avowed R2P and UN sceptic, has been identified as being primarily responsible for ensuring that the veto reference was expunged from the final text.42 But in broader context the dilution of the original ICISS veto proposal can be seen to reflect the long-​held, deep-​ seated, and largely ongoing reluctance of the P5 states to countenance restrictions on their veto prerogative, a view which they hold just as much in relation to R2P as to other matters. In the aftermath of the US-​led invasion of Iraq in 2003, the P5’s entrenched conservatism on veto-​restraint struck a sympathetic chord in relation to R2P among those members of international society who worried that unshackling the veto might open the doors to increased armed humanitarian intervention by Western powers. The intervention accentuated long-​held concerns about the propensities of Western powers to play fast and loose with Charter rules governing the use of force, including bypassing of the Council. Seen in this light, the veto remained the only Charter-​based mechanism for constraining the great powers in their use of force, and although this had not worked in Iraq, this was no reason to weaken the constraint still further. Indeed Iraq—​and Kosovo before it—​suggested that R2P was an ill-​suited policy area over which to advocate veto restriction, ringing alarm-​bells over both P5 (mis)behaviour and citation of purportedly humanitarian aims as a justification for the use of force.43 These more broadly shared concerns, in conjunction with P5 opposition to veto restriction, meant, as Alex Bellamy notes, that ‘not even ardent supporters were advocating wholesale adoption of the [ICISS]’s recommendations . . . dropping the very measures [including veto curtailment] which . . . were necessary to make the council better able to discharge its responsibilities’.44 However willing the UN membership may have been to endorse the R2P

The Responsibility Not to Veto    233 concept, there was little appetite to tie this to significant change in UNSC voting practice, especially in the face of significant P5 opposition.45 The RN2V story did not, however, end in 2005. Indeed, the ink on the World Summit’s final Outcome Document had barely dried before the so-​called ‘Small Five’ (S5) group of states (Costa Rica, Jordan, Liechtenstein, Singapore, and Switzerland) reignited the issue by proposing to the 2006 General Assembly that use of the veto in relation to decisions pertaining to mass atrocity situations be curtailed.46 In keeping with the familiar story of UNSC reform, general consensus on the need for change could not be moulded into acceptance of any concrete proposal and thus the S5’s proposed resolution came to nought.47 But the S5 continued to spearhead the debate on the issue and despite this initial setback the group found support in the highly influential form of the new UN Secretary-​General Ban Ki-​moon who, in his 2009 report on Implementing the Responsibility to Protect noted that ‘[w]‌ithin the Security Council, the five permanent members bear particular responsibility because of the privileges of tenure and the veto power they have been granted under the Charter’ before ‘urg[ing the P5] to refrain from employing or threatening to employ the veto in situations of manifest failure to meet obligations relating to the responsibility to protect’.48 In light of such advocacy the notion of veto-​restraint became a perennial topic of discussion in the UN’s Informal Interactive Dialogues on R2P49 and by 2012 the S5 expressed confidence that they had secured the support of over half of all UN members for their proposal.50 Duly bolstered, the S5 once again prepared to put their proposal to the General Assembly, but as diplomatic manoeuvres commenced it soon became apparent that the idea of a RN2V was in danger of sinking in the impenetrable quagmires of debate over wider issues of reform and UN power politics. The group went to considerable efforts to navigate such terrain, stressing that they ‘fully respect[ed] the Charter-​based right of the veto’ and that their proposal did ‘not entail any amendment to the UN Charter’.51 Indeed, the deletion from the S5 draft resolution of a clause proposing that a P5-​state could vote negatively but declare that such a vote should not constitute a veto52 was designed specifically to demonstrate these points.53 Nevertheless, according to Volker Lehman ‘the P5 undertook concerted action to prevent member states from casting a positive vote on the proposal’.54 Russia reportedly viewed the S5 proposition as an ‘affront’ to the P5 and the UNSC55 whilst China used its influence with African states to sap their support for the initiative56 and the United States, having previously shown some appetite for the kind of practices encapsulated within the S5 scheme,57 came out in unequivocal opposition to them.58 The US, UK, and French governments also exerted pressure on key UN Secretariat legal officials in order to secure a ruling that, should the S5 resolution be put to the vote, it would amount to an ‘important question’ within the terms of Article 18 of the Charter, thus requiring a two-​thirds rather than a simple majority in order to pass.59 With the constitutional bar raised and the P5 turning the diplomatic screw ever tighter, the S5’s position was too precarious to withstand any further assaults. Hence when the so-​called ‘Uniting for Consensus’ (UfC)60 group of states saw the opportunity to further their aims on UNSC reform by ‘tactically reversing their previous support for the S5’61 the diplomatic game was effectively up. Yet whilst the UfC’s volte-​face proved

234    Justin Morris and Nicholas J. Wheeler highly damaging to the S5’s cause, it was ultimately what Paul Seger, Swiss Permanent Representative to the UN and de facto spokesperson for the S5 referred to as the ‘considerable pressure’ of the P5 which proved to be the decisive factor. In the face of such pressure an increasing number of erstwhile supporters informed the group that, whilst they continued to ‘support [S5] ideas in substance’,62 they were unable to translate such support into votes in the Assembly, and faced with such an ebbing of support, the S5 withdrew their proposal. Retreat was, no doubt, a better long-​term option than defeat, but as Lehman observes: Such tactical and long-​term strategic considerations aside, the failure of the S-​5 was first and foremost a show of force on the part of a P5 determined to maintain their control over the representation of member states interests and the reform agenda at the UN.63

Bloodied but not beaten, when the UNSC met to debate its working methods in November 2012, each of the S5 states bar Jordan returned to the RN2V fray,64 even though the working method’s agenda made no reference to the topic.65 Among the addresses to the Council, Singapore’s, and in particular its recollection of the 2012 UNGA deliberations over the S5’s RN2V proposal, is worthy of quotation at length. The Singaporean Permanent Representative recalled how the proposal: [H]‌ad asked the P5 to consider refraining from vetoing action aimed at preventing genocide, war crimes and crimes against humanity. That aspect was considered particularly controversial by the P5, which were affronted by the suggestion that limits be placed on the use of their veto power. That position was shared by all the P5, even those who fervently support the principle of responsibility to protect. Those permanent members that repeatedly express outrage at what is happening within the Council on issues like Syria are the same ones that blocked [the S5 proposal]. Trumpeting moral outrage over the Council’s non-​action is particularly hypocritical because whatever divisions there may be among the P5, they are united in having no limits placed on their use or abuse of the veto.66

Faced with such opposition the S5 had, by May 2013, reconstituted itself into a broader-​ based UN grouping of states, the ‘Accountability, Coherence and Transparency Group’ (ACT), though with the notable omission of Singapore which had reportedly succumbed to US pressure and decided not to continue its participation in the reform initiative.67 Attempting to avoid a repetition of previous experiences of embroilment in the acrimony of wider UN debates, the 22-​member group68 chose explicitly to ‘situate . . . itself outside of the comprehensive reform of the UN Security Council’, but nevertheless included within its various ‘topics’ ‘engagement against the veto in cases of the most serious crimes’.69 In part due to the increased impetus for change which the UNSC’s perceived failure to act appropriately over human rights violations in Syria has generated,70 ACT members have been amongst the most vociferous advocates of the RN2V. Five ACT members—​Chile, Costa Rica, Liechenstein, New Zealand, and

The Responsibility Not to Veto    235 Slovenia—​spoke out on the issue at the 2013 UN General Assembly Open Session71 and when the UNSC returned to the issue of its working methods in October 2014, 11 ACT members took the opportunity to voice their support for the RN2V.72 What is even more striking about this latter meeting, however, is that in addition to these ACT members a further 19 states chose to speak out in favour of the initiative. The propensity amongst a growing number of UN members to champion the notion of a RN2V lends credence to Theresa Reinold’s claim that whilst gaining a two-​thirds UNGA majority in favour of RN2V might have gone down to the wire in 2012, UNSC deadlock over Syria means that: support for the responsibility not to veto is likely to increase, because of the perceived stark discrepancy between the Council’s R2P rhetoric on the one hand, and its failure to match words with deeds on the other.73

Given the hitherto united front of the P5 against any proposals for limiting the veto, it is notable that France, a permanent Council member, has chosen to break ranks from the P5 and join the growing chorus of voices calling for veto-​restraint. It has reinvigorated its original ICISS veto-​constraint proposal, siding with the S5 in the UNSC’s November 2012 meeting and again a year later with ACT members in the General Assembly. Motivated by a sense that the ‘dramatic human consequences’ of UNSC stalemate over Syria ‘cannot be accepted by the global conscience’, the French foreign minister set out explicitly in October 2013 a mechanism whereby the P5 ‘could voluntarily regulate their right to exercise their veto’.74 Stressing that the idea could be ‘implemented through a mutual commitment’ from the P5 rather than requiring formal Charter amendment, the proposal requires the P5 states to suspend their right of veto in relation to a humanitarian crisis which, following a request to investigate by 50 or more UN Member States, the UN Secretary-​General deems to fall within the remit of R2P. Fearful that UNSC inaction in the face of mass atrocity crimes will lead to the chamber losing its legitimacy, the proposal’s innovative idea of involving the UNGA and UN Secretary-​General in the response process was intended to break the impasse in the RN2V debate, although it should be remembered that even in a veto-​free situation, any action by the Council would still require nine concurring votes. Realizing the significance of a proposal that emanated from within the P5, it was around the French proposal which those states advocating a RN2V rallied in the UNSC’s meeting of October 2014. But the initiative, like those before it, rather predictably failed to gain any traction amongst the other P5 states or, indeed, amongst significant rising powers such as India and Brazil who aspire to permanent member status. For the most part these states adopted a strategy of opposition through omission; China, the United States, the United Kingdom, India, and Brazil utilized the absence of the veto-​restraint issue from the working methods agenda as a basis for maintaining a notable silence on the subject, despite speaking at length about other matters of reform and so did many other states raising the question of the veto in debate.75 In contrast, Russia was more

236    Justin Morris and Nicholas J. Wheeler overt in its rebuttal of RN2V advocacy, insisting that ‘the fundamental provisions of the Charter pertaining to the right of veto do not pertain to the working methods of the Council’,76 before rejoining the other great powers in their conspiracy of silence. Amidst such diplomatic taciturnity P5 statements made at a ministerial-​level ‘side event’ on ‘regulating the veto in the event of mass atrocities’ during the 2014 General Assembly provide rare public insight into the concerns which permanent UNSC members (excluding France) have over the idea of a RN2V.77 France—​with Mexico the co-​convenor of the event—​inevitably spoke in favour of its proposed veto code of conduct, whilst also acknowledging that, despite intra-​P5 discussions, it was an ‘understatement’ to say that the other permanent members were not ‘completely convinced’.78 The nature of the disagreement was somewhat obscured when the US and UK representatives chose to use the event as a forum for criticizing Russian and Chinese vetoes over Syria, but whilst the US ambassador chose not to widen her focus and comment on broader-​based concerns over the notion of a RN2V, the United Kingdom was less reticent. The British declaration that they could not envisage circumstances in which they would use the veto to ‘block an appropriate response to mass atrocity crimes’ and that they accordingly ‘welcome[d]‌th[e] initiative’ no doubt provided some succour to RN2V advocates, but the observation that veto-​ restraint would not be possible unless committed to by all of the P5 states served both to ground the debate in practical reality and assist the United Kingdom in passing the buck should, as is likely to prove the case, the diplomatic impasse on the matter continues. But the more fundamental basis for British opposition to a RN2V was grounded in the fact that ‘[w]hile today’s realities differ in many ways to the challenges that face the world in 1946 [sic], the veto continues in some degree to fulfil th[e] function’ of ‘enabl[ing] those states who would bear the main responsibilities for ensuring international peace and security . . . to commit to the UN Charter and to the United Nations as an organization’.79 Reference back to the logic of 1945 as a basis for repudiating advocacy of RN2V weighed even more heavily in Chinese and Russian contributions to the event. The Chinese representative stressed that ‘the principle for concurrence of bigger powers for the Security Council’s decision making mechanism . . . is the foundation to guarantee the feasibility of the United Nations collective security arrangements’.80 Concurring with this position, the Russian delegate argued that ‘[t]‌he right of the veto is one of the UN Charter’s main pillars [which, as] an indispensable element of the system of checks and balances . . . stimulates [the] seeking [of] compromise and consensus’. Moreover, from a Russian perspective, exercises of the veto often criticized as irresponsible were actually the very opposite, because ‘the use of the veto or the threat to use it . . . has repeatedly safeguarded the UN against doubtful undertakings, [as, for example, in] Yugoslavia in 1999, war in Iraq in 2003 or [in] pushing Syria towards collapse in recent years’.81 In light of such declarations prospects for acceptance of a RN2V look bleak.

The Responsibility Not to Veto    237

The Prospects, Pros and Cons of the RN2V It is evident from this account that RN2V has growing traction among UN Member States, but that this enthusiasm does not extend to the P5 as a collective grouping. As is so often the case, those with the will to change lack the means, and those with the means lack the will. The question, then, is how far the normative aspirations of wider international society for veto-​restraint in cases that are widely accepted as shocking the conscience of humankind can be enshrined in UNSC practice. In the absence of the material or constitutional levers which could compel such change, the goal of those advocating a RN2V must be to shame permanent members into accepting a practice whereby they refrain from exercising their veto prerogative where a proposed resolution has majority support and particular states are prepared to act. There is good reason to think that individual members of the P5 are not wholly insensitive to issues of shaming. Indeed, as a number of cases since intervention in Iraqi Kurdistan in 1991 demonstrate, even Russia and China—​the P5 states least persuaded by the merits of intervention for purportedly humanitarian purposes—​have at times proved susceptible to the threat of moral censure likely to attend the use of the veto to block action that was clearly designed to bring about the relief of gross human suffering.82 Nevertheless, as the unfolding story of RN2V shows, such vulnerability may be more intense in specific cases than in general, especially given the P5’s tendency to coalesce when their shared rights are challenged. States are notoriously loath to give up the hard-​won fruits of previous diplomatic encounters, and whilst France’s breaking of ranks is notable, there is little sign of other permanent members following suit. On balance, therefore, a victory for RN2V advocacy currently looks to be, at best, some way off. Even if this prognosis proves unduly pessimistic and the shaming of the P5 results in a de facto practice that limits the use of the veto in future humanitarian crises, there are two important, and potentially problematic, caveats to the proposed RN2V’s operation. The first relates to the generally agreed exception that the restriction will not apply where vital interests are at stake, and specifically the implicit assumption in this that parties will be able to agree on what constitutes such interests. For in practice what counts as vital interests is open to wide contestation, especially given conflicting value systems among members of the P5 and the play of power politics. How should we judge when a state is acting in its vital interest and when it is using this argument as a smokescreen to disguise baser motives? This is a perennial rather than a new concern, as Thomas Franck and Nigel Rodley noted in their seminal 1973 article on humanitarian intervention,83 but it is also one for which current proposals on RN2V offer little by way of solution. Indeed, it is arguable that this is a problem which, by its very nature, defies resolution, since it is for national governments to determine their interests, and it is unrealistic and

238    Justin Morris and Nicholas J. Wheeler perhaps even unreasonable to ask them to abdicate such a prerogative. Combining this right of self-​determination with the fact that, by definition, great powers have global interests, leads to an unpalatable conclusion for advocates of RN2V; any articulation of the responsibility which does not recognize an exception based on vital interests will be wholly unacceptable to the P5, but once recognized the indefinable and illimitable nature of the exception has the potential to render the responsibility vacuous. The second caveat strikes a blow at the whole project of veto limitation in humanitarian emergencies by questioning the ability of UNSC members to reach a sufficiently wide consensus as to whether a particular situation crosses the threshold of human suffering that legitimately warrants UNSC intervention. With the adoption of a resolution requiring nine supporting votes, there can be no certainty that views on the severity of a situation will coincide, even where all agree that some level of human rights violations is evident. A powerful illustration of this was the divisions among the P5 over NATO’s use of force in Kosovo. Russia did not challenge the view that the internal armed conflict represented a developing humanitarian emergency and that the Yugoslav government was committing gross violations of international humanitarian law. However, Russia was not persuaded that the use of force was justified, believing that all peaceful means of ending the conflict had not been exhausted, and that coercive outside military intervention would exacerbate the conflict and deepen the human suffering.84 The UN Charter bestows upon the Council the responsibility of resolving such differences, but as Kosovo, and more recently Syria have demonstrated, it is often incapable of fulfilling this function. Hence, where the root cause of divisions is over whether particular cases necessitate UN intervention, including the use of force, then the proposal to limit the veto as made by the ICCIS and thereafter by the S5 and ACT will be of little avail. The most recent French proposal over RN2V seeks to address such disagreements in the Council by apportioning to the UN Secretary-​General the role of arbiter of such disagreements, but given the zeal with which the most powerful members of the P5 (China, Russia, and the United States) have guarded their Council privileges to date, it is hard to envisage their countenancing the transfer of such powers of determination. Of course acceptance of a RN2V would alleviate that point to some degree since it would prevent passage of a resolution being blocked by the use or threat of a veto. But what this overlooks is the manner in which questions of interest on the one hand, and threshold determinations over mass atrocity situations on the other, interact. As David Bosco observes, ‘what constitutes a “mass-​atrocity situation” is largely in the eyes of the beholder. Almost all international and internal conflicts feature atrocities of one sort or another. But these conflicts also have political and strategic dimensions.’85 And crucially what the eye sees is, in large part, conditioned by where the observer sits in relation to the political and strategic aspects of the conflict in question; states are far more forgiving of the indiscretions of their friends and allies than of other states, and similarly they tend to be far more critical of the behaviour of the friends and allies of their competitors and foes. Understood in these terms, the parameters within which veto constraint might operate are likely to be highly restrictive.

The Responsibility Not to Veto    239 The preceding analysis suggests, first, that the prospects for securing acceptance of a RN2V are limited, and second, that even if agreement could be reached, the utility of the practice would be more limited than might initially be apparent. So it is particularly notable that the counter-​arguments to RN2V have not been articulated in the terms discussed here; instead, opposition has centred on a reaffirmation of the original rationales for the veto offered in 1945. Given this, it is worth revisiting how far the original San Francisco dispensation on the veto remains valid in the context of R2P. Supporters of veto limitation would question the contemporary relevance and suitability of the 1945 arrangement on two, interrelated grounds. First, while the veto was adopted to prevent the UN becoming a battlefield between the great powers, today these states recognize the costs of war between them, not least because of the awesome destructive power of the weaponry with which it would ultimately be fought. Second, in 1945 it was anticipated that the UN’s primary policing role would relate to interstate conflict, whereas twenty-​first-​century conflicts are invariably located inside state borders. In light of these fundamental changes, so the argument goes, the original rationale for the veto seems less compelling. But indisputable as these points are, it does not follow that great power political rivalries and fluctuating interests cease to exert an influence over policy. Indeed, as the divisions over Syria show, intra-​state conflict in the context of grave humanitarian emergencies can be a site for power politics, and for as long as this is the case, the veto remains relevant to prevent the members of the P5 from confronting one another in local situations. The temptation is to think that because the post-​Cold War period has witnessed a benign period of great power relations this sets the trend for the rest of the century, but the reluctance of Russia and China to balance US capabilities in the 1990s and early 2000s offers no guarantees for the future. New patterns of balancing and power competition are likely to emerge as China, in particular, develops global aspirations and the material capabilities to pursue them. In such a world, the logic of the veto arguably remains as compelling as it was at its creation. Advocates of a RN2V would respond that, whilst the concerns discussed here may resonate in a wider debate over veto restriction or abolition, more limited constraint in specific relation to R2P does not have to suffer this fate, because properly understood R2P transcends great power politics. In its more moderate form this argument is premised upon the claim that R2P represents a sufficiently strong point of consensus in international society, including amongst the great powers, that it constitutes a basis for collective action and that this accord is evidenced by the endorsement of R2P at the 2005 World Summit. This, in effect, established the prevention and alleviation of mass atrocity crimes as a fundamental purpose of the UN, and placed the UNSC at the centre of efforts to translate such sentiments into deeds. The Summit entrenched the ‘mission creep’86 which the Council had for some time been experiencing as its remit expanded from the maintenance of international peace and security to the safeguarding of human rights, and in so doing it encumbered the P5 with special responsibilities to assist the UN in meeting its newly proclaimed humanitarian obligations.87 Accordingly, the P5 should, in keeping with both their 1945 and 2005 commitments, refrain from using their veto in relation to R2P situations, since at the end of the Second World War they

240    Justin Morris and Nicholas J. Wheeler agreed not to exercise their veto to thwart the UN in pursuing its declared purposes, and 60  years later R2P effectively became one such purpose. On this argument, the P5’s divisions over Syria are the aberrant result of a coincidence of case-​specific factors which should be viewed neither as a statement of the limits of R2P88 or RN2V, nor as an example of an appropriate use of the veto. However, what this optimistic reading of great power politics neglects to consider is the extent to which the P5, despite their 2005 assent to R2P, are operating with fundamentally different conceptions of international order which give rise to divergent conceptions of interests, and thus weaken any basis for collective action in the name of R2P.89 Given such deep-​rooted value cleavages, the likelihood that those who currently have the power to block action by other members of the great power club will willingly give it up is almost nil. A more radical incarnation of the belief in the potential for R2P to escape great power politics rests on a deeper moral conviction that sees R2P as merely an expression of a new moral cosmopolitanism. Moreover, the argument is premised on the notion that there now exists a global acceptance of this cosmopolitan position and so, with the political debates which had previously bedevilled debates over intervention now assuaged, R2P should be seen to stand outside or even above normal political intercourse.90 Viewing R2P as the talisman for a new world politics of universalism leads naturally to advocacy of the RN2V, since it calls into question the very principles which underpin the construction of the UNSC and its voting procedures; in this world no state, no matter how powerful, should be able legitimately to block action designed to alleviate human suffering. But as Chris Brown has observed, the problem with this ‘inherently anti-​political approach’ is that, in reality, the ‘political cleavages that characterise the modern world cannot be wished away’.91 It follows that whilst a RN2V ‘would make sense if humanitarian crises could be understood as essentially non-​political events’ amenable to ‘technical’92 solutions, once they are properly understood as being inherently political in both their nature and means of resolution, the case for veto-​restriction appears unsustainable.

Conclusion By virtue of the rationale that gave rise to the ICISS and the principle of R2P—​i.e. the avoidance of future deadlock among the P5 as happened over Kosovo and collective paralysis and inaction as over Rwanda—​the idea of a RN2V is intimately bound up in any discussion of R2P. The latter is heralded as a major step in the UN’s post-​Cold War trajectory towards greater emphasis on the organization acting to prevent and end humanitarian crises as against its original post-​war focus on questions of conflict and war between sovereign actors. In this context, the threat (as over Kosovo) or use (as over Syria) of the veto in relation to R2P situations can appear at first sight only to offer obstacles to the alleviation of human suffering, and as such appears to be of little value beyond that which it offers the veto-​caster in terms of safeguarding their more narrowly defined

The Responsibility Not to Veto    241 national interests. But to adopt such a reading would be to lose sight of the broader political context in which R2P, like all other UN activities, must be seen. Coercive intervention—​especially the use of force—​in the internal affairs of states is an inherently political act and whilst a P5 code of conduct on the use of the veto would serve a useful purpose in that the P5 would have to justify derogations from it in terms of the agreed criteria, it is wrong to think that the existence of the code itself would increase the likelihood of great power consensus in all cases of gross human suffering. Action pursuant to R2P will always involve the exercise of judgement on the part of the great powers and this cannot be separated from considerations of moral obligation, prudence, and national self-​interest. Hence, the expectation that, in dealing with such situations, the UNSC’s permanent members—​amongst the most powerful states in the world and the ones to which others invariably turn in times of humanitarian crisis—​might renounce the veto power is unrealistic. Moreover, even were this not to prove the case, such a proposal’s utility in addressing the original problem of how to avoid P5 deadlock in cases of mass atrocity crimes is likely to be severely limited. The world has undoubtedly changed since 1945, but much of the reasoning which at that time gave rise to the veto remains powerfully persuasive, and the emergence of the principle of R2P does little to change that fundamental assessment. The notion of RN2V must, therefore, be judged to be a responsibility too far.

Notes 1. ICISS 2001a, p. 51. 2. S/​Res/​1973, 17 March 2011. 3. S/​PV.6498, 17 March 2011. 4. Blätter and Williams 2011. See also Levine 2011; Peters 2011. 5. Morris 2013a, p. 512. 6. Fassbender 1998, p. 165; Morris 2013a, p. 517. 7. Campbell and Herring 1975, pp. 244–​5. 8. Kimball 1991, pp. 127–​57. 9. Hull 1948, p. 1660. 10. Fassbender 1998, p. 165. 11. Claude 1982, p. 146. 12. Claude 1962, p. 160. 13. Claude 1962, p. 160. 14. Claude 1982, pp. 146–​7. 15. United Nations Conference on International Organization (UNCIO) 1998, vol. 1, p. 360. 16. Hurd 2007, p. 93. 17. Russell 1958, p. 723. 18. Hurd 2007, p. 84. 19. UNCIO 1998, vol. 11, p. 131. 20. Goodrich and Hambro 1949, p. 219; Schlesinger 2003, p. 223. 21. UNCIO 1998, vol. 11, p. 129.

242    Justin Morris and Nicholas J. Wheeler 22. Bosco 2009, p. 43. 23. UN Doc. A/​Res/​40(1), 13 December 1946. 24. Sievers and Daws 2014, p. 316; Fassbender 1998. 25. As of 19 November 2014. See Sievers and Daws 2014, pp. 300–​10. 26. Carswell 2013, p. 470. 27. Claude 1982, p. 149; Sievers and Daws 2014, pp. 296–​316. 28. Butler 2012, p. 31. 29. A/​61/​47. 30. Sohn 1947, pp. 1149–​50. 31. Fassbender 2004, p. 351. 32. S/​PV.6870 (Resumption 1), 26 November 2012. 33. Under Article 108 formal Charter amendment requires the agreement of the P5 states. 34. A/​61/​47, 14 September 2007. 35. ICISS 2001a, p. xiii. 36. ICISS 2001b, pp. 109–​14 and 155–​75; Evans 2004; Thakur and Schnabel 2011. 37. ICCS 2001b, p. 379; Bellamy 2009, p. 48. 38. United Nations 2004, p. 82. 39. A/​RES/​60/​1, 24 October 2005. 40. A/​59/​HLPM/​CRP.1/​Rev.2, 2 August 2005; Blätter and Williams 2011. 41. LaFranchi 2005. 42. Blätter and Williams 2011, pp. 315–​16. 43. Wheeler and Morris 2006. 44. Bellamy 2009, pp. 73–​4. 45. Axeworthy and Rock 2009, p. 61. 46. A/​60/​L.49, 17 March 2006. 47. United Nations 2006. 48. UN Doc. A/​63/​677, 12 January 2012. 49. GCR2P 2012. 50. Lynch 2012. 51. Seger 2012. 52. A/​66/​L.42/​Rev.1, 3 May 2012; A/​66/​L.42/​Rev.2, 15 May 2012. 53. Seger 2012. 54. Lehman, 2013, 3. 55. Lynch 2012. 56. Lehman 2013, p. 3. 57. Blätter and Williams 2011, pp. 316–​17. 58. Lynch 2012. 59. Reinold 2014, p. 286. 60. The 13-​strong UfC group or ‘Coffee Club’, which includes Argentina, Italy, Mexico, Pakistan, South Korea, and Spain amongst its most influential members supports expansion of the UNSC only in the non-​permanent category. In particular they oppose the so-​ called G4 states of Brazil, Germany, India, and Japan which seek permanent seats in the Council. See Ariyoruk 2005 and Kugel 2009. 61. Lehman 2013, p. 3. 62. Seger 2012. 63. Lehman 2013, p. 4. 64. S/​PV.6870 and S/​PV.6870 (resumption 1), 26 November 2012. 65. S/​2010/​507, 26 July 2010; S/​2012/​853, 19 November 2012.

The Responsibility Not to Veto    243 66. S/​PV.6870. 67. Lehman 2013, p. 4, n. 6. 68. Austria, Chile, Costa Rica, Estonia, Finland, Gabon, Hungary, Ireland, Jordan, Liechtenstein, Maldives, New Zealand, Norway, Papua New Guinea, Peru, Portugal, Saudi Arabia, Slovenia, Sweden, Switzerland, Tanzania, and Uruguay. 69. ACT 2013; Lehman 2013, pp. 4–​6. 70. Evans 2012; Morris 2013b; Reinold 2014. 71. GCR2P 2013. 72. S/​PV.7285 and S/​PV.7285 (Resumption 1), 23 October 2014. 73. Reinold 2014, p. 292. 74. Fabius 2013. 75. S/​PV.6870; S/​PV.6870 (resumption 1); S/​PV.7285; and S/​PV.7285 (resumption 1). 76. S/​PV.6870; also S/​PV.7285. 77. GCR2P 2014. Neither Brazil nor India spoke at the event. 78. See (accessed 10 November 2014). 79. See (accessed 10 November 2014). 80. See (accessed 10 Novem­ ber 2014). 81. See (accessed 10 November 2014). 82. Wheeler 2000, pp. 154–​5 and 186; Wheeler 2006, p. 39. 83. Franck and Rodley 1973, pp. 278–​9. 84. Wheeler 2000, pp. 257–​84. 85. Bosco 2013. 86. Clark and Reus-​ Smit 2013, p.  39. On ‘special responsibilities’ more generally see Bukovanski et al. 2012. 87. Dunne 2013; Morris 2015. 88. Bellamy 2014. 89. Newman 2013; Rotmann et al. 2014. 90. Serrano 2013, p. 435. 91. Brown 2013, p. 425. 92. Brown 2013, p. 431.

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244    Justin Morris and Nicholas J. Wheeler Bellamy, Alex J. (2014). ‘From Tripoli to Damascus? Lesson Learning and the Implementation of the Responsibility to Protect’, International Politics 51(1): 23–​44. Blätter, Ariela and Paul D.  Williams (2011). ‘The Responsibility Not To Veto’, Global Responsibility to Protect 3(3): 301–​22. Bosco, David L. (2009). Five to Rule them All: The UN Security Council and the Making of the Modern World (Oxford: Oxford University Press). Bosco, David (2013). ‘France’s Plan to Fix the Veto’, Foreign Policy, 4 October 2013. (accessed 26 November 2014). Brown, Chris (2013). ‘The Antipolitical Theory of Responsibility to Protect’, Global Respon­ sibility to Protect 5(4): 423–​42. Bukovanski, Mlada, Ian Clark, Robyn Eckersley, Richard Price, Christian Reus-​Smit, and Nicholas J. Wheeler (2012). Special Responsibilities: Global Problems and American Power (Cambridge: Cambridge University Press). Butler, Richard (2012). ‘Reform of the United Nations Security Council’, Penn State Journal of Law and International Affairs 1(1): 23–​39. Campbell, Thomas M. and George C. Herring (1975). The Diaries of Edward Stettinius, Jr., 1943–​ 1946 (New York: New Viewpoints). Carswell, Andrew J. (2013). ‘Unblocking the UN Security Council:  The Uniting for Peace Resolution’, Journal of Conflict and Security Law 18(3): 453–​80. Clark, Ian and Christian Reus-​Smit (2013). ‘Liberal Internationalism, the Practice of Special Responsibilities and Evolving Politics of the Security Council’, International Politics 50(1): 38–​56. Claude, Inis L. (1962). Power and International Relations (New York: Random House). Claude, Inis L. (1982). Swords into Ploughshares: The Problems and Progress of International Organization (New York: McGraw-​Hill). Dunne, Tim (2013). ‘Distributing Duties and Counting Costs’, Global Responsibility to Protect 5(4): 443–​65. Evans, Gareth (2004). ‘The Responsibility to Protect: Rethinking Humanitarian Intervention’, Proceedings of the Annual Meeting of the American Society of International Law 98: 78–​89. Evans, Gareth (2012). ‘The Responsibility to Protect after Libya and Syria’. Address to the Annual Castan Centre for Human Rights Law Conference, Melbourne, 20 July. (accessed 6 October 2014). Fabius, Laurent (2013). ‘A Call for Self-​Restraint at the UN’, New York Times, 4 October. . Fassbender, Bardo (1998). UN Security Council Reform and the Right of Veto (The Hague: Kluwer). Fassbender, Bardo (2004). ‘Pressure for Security Council Reform’, in David M. Malone (ed.), The UN Security Council: From the Cold War to the 21st Century (Boulder, CO: Lynne Rienner), pp. 341–​56. Franck, Thomas M. and Nigel S. Rodley (1973). ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force’, American Journal of International Law 67(2): 275–​305. Global Centre for the Responsibility to Protect (GCR2P) (2012). ‘Timely and Decisive Response’. Summary of the Informal Interactive Dialogue of the UN General Assembly on the Responsibility to Protect, 5 September. (accessed 26 November 2014).

The Responsibility Not to Veto    245 Global Centre for the Responsibility to Protect (GCR2P) (2013). ‘The Responsibility to Protect at the Opening of the 68th Session of the Unted Nations General Assembly’. (accessed 26 November 2014). Global Centre for the Responsibility to Protect (GCR2P) (2014). ‘UN Security Council Veto Reform’. (accessed 10 November 2014). Goodrich, Leland M. and Edvard Hambro (1949). Charter of the United Nations: Commentary and Documents (Boston, MA: World Peace Foundation). Hull, Cordell (1948). The Memoirs of Cordell Hull (London: Hodder & Stoughton). Hurd Ian (2007). After Anarchy: Legitimacy and Power in the United Nations Security Council (Princeton, NJ: Princeton University Press). ICISS (2001a). Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre). ICISS (2001b). The Responsibility to Protect:  Report of the International Commission on Intervention and State Sovereignty:  Research, Bibliography, Background (Ottawa: Inter­ national Development Research Centre). Kimball, Warren F. (1991). The Juggler: Franklin Roosevelt as Wartime Statesman (Princeton, NJ: Princeton University Press). Kugel, Alischa (2009). ‘Reform of the Security Council: A New Approach?’, Friedrich Ebert Stiftung Briefing Paper No. 12. (accessed 12 November 2014). LaFranchi, Howard (2005). ‘At UN, Bolton Softens his Tone’, Christian Science Monitor 97(202), 12 September. Lehman, Volker (2013). ‘Reforming the Working Methods of the UN Security Council: The Next ACT’. Friedrich Ebert Stiftung Perspectives (New York: Friedrich Ebert Stiftung). Levine, Daniel H. (2011). ‘Some Concerns About “The Responsibility Not To Veto”’, Global Responsibility to Protect 3(3): 323–​45. Lynch, Colum (2012). ‘Rise of the Lilliputians’, 10 May. (accessed 11 November 2014). Morris, Justin (2013a). ‘From “Peace by Dictation” to International Organisation:  Great Power Responsibility and the Creation of the United Nations’, International History Review 53(3): 511–​33. Morris, Justin (2013b). ‘Libya and Syria: R2P and the Spectre of the Swinging Pendulum’, International Affairs 89(5): 1265–​83. Morris, Justin (2015). ‘The Responsibility to Protect and the Great Powers: The Tensions of Dual Responsibility’, Global Responsibility to Protect 7(3–​4): 401–​24. Newman, Edward (2014). ‘R2P: Implications for World Order’, Global Responsibility to Protect 5(3): 235–​59. Peters, Anne (2011). ‘The Security Council’s Responsibility to Protect’, International Organizations Law Review 8(1): 15–​54. Reinold, Theresa (2014). ‘The “Responsibility Not to Veto”, Secondary Rules, and the Rule of Law’, Global Responsibility to Protect 6(3): 269–​94. Rotmann, Philipp, Gerrit Kurtz, and Sarah Brockmeier (2014). ‘Major Powers and the Contested Evolution of a Responsibility to Protect’, Conflict, Security & Development 14(4): 355–​77. Russell, Ruth B. (1958). A History of The United Nations Charter (Washington, DC: Brookings Institution).

246    Justin Morris and Nicholas J. Wheeler Schlesinger, Stephen C. (2003). Act of Creation: The Founding of the United Nations (Boulder, CO: Westview). Seger, Paul (2012). Speech to the UN General Assembly, 16 May. (accessed 14 November 2014). Serrano, Mόnica (2013). ‘The Responsibility to Protect and its Critics:  Explaining the Consensus’, Global Responsibility to Protect 3(4): 425–​37. Sievers, Loraine and Sam Daws (2014). The Procedure of the UN Security Council, 4th edn. (Oxford: Oxford University Press). Sohn, Louis B. (1947). ‘The Development of International Law’, American Bar Association Journal 33: 1148–​52. Thakur, Ramesh and Albrecht Schnabel (2011). ‘Kosovo, Humanitarian Intervention and the Challenge of World Order’, in Ramesh Thakur (ed.), The Responsibility to Protect: Norms, Laws and the Use of Force in International Politics (Abingdon: Routledge), pp. 42–​60. United Nations (2004). A More Secure World: Our Shared Responsibility. Report of the Secretary-​General’s High-​Level Panel on Threats, Challenges and Change (New York: United Nations). United Nations (2006). ‘General Assembly Debates Security Council Reform’, 21 July. (accessed 26 November 2014). United Nations Conference on International Organization (1998) (Buffalo, NY: Hein and Co.). Wheeler, Nicholas J. (2000). Saving Strangers:  Humanitarian Intervention in International Society (Oxford: Oxford University Press). Wheeler, Nicholas J. (2006). ‘The Humanitarian Responsibilities of Sovereigns:  Explaining the Development of a New Norm of Military Intervention for Humanitarian Purposes in International Society’, in Jennifer M.  Welsh (ed.), Humanitarian Intervention and International Relations (Oxford: Oxford University Press), pp. 29–​51. Wheeler, Nicholas J. and Justin Morris (2006). ‘Justifying the Iraq War as a Humanitarian Intervention: The Cure is Worse than the Disease’, in Ramesh Thakur and Waheguru Pal Singh Sidhu (eds.), The Iraq Crisis and World Order: Structural, Institutional and Normative Challenges (Tokyo: United Nations University Press), pp. 444–​63.

Pa rt  I V

U N  OR DE R

Chapter 14

UN Secu rit y C ou nc i l Alex J. Bellamy

The genesis of the responsibility to protect (R2P) was in significant part a response to two sets of perceived failings on the part of the UN Security Council in the 1990s. There were failures of will exemplified by its decision to not authorize a decisive response to the 1994 genocide in Rwanda or the robust enforcement of its ‘safe areas’ policy in Bosnia the following year. There were also failures of diplomacy, exemplified by the Council’s inability to reach consensus on how to respond to ethnic cleansing in Kosovo in 1999, a failure that prompted some Member States to take matters into their own hands by forcibly intervening without the authorization of the Security Council—​ a violation of the UN Charter prompted by grave humanitarian concern. It was these perceived failures that prompted then UN Secretary-​General Kofi Annan to use his 1999 address to the UN General Assembly to challenge international society to find a better way of balancing humanitarian responsibilities with the international rule of law.1 As Cater and Malone and others demonstrate in this volume, this was the challenge taken up by the International Commission on Intervention and State Sovereignty (ICISS), which focused heavily on the work of the Security Council in its 2001 report.2 It is unsurprising, therefore, that although the UN membership chose to not adopt the Commission’s key recommendations for the Security Council, paragraph 139 of the 2005 World Summit agreement identified the Council as bearing special responsibilities for the protection of populations from genocide, war crimes, ethnic cleansing, and crimes against humanity (hereafter referred to collectively as ‘atrocity crimes’). This chapter focuses on the Security Council’s special responsibilities in relation to R2P and examines how the Council’s thinking about R2P and human protection has evolved since the turn of the century. It argues that the adoption of R2P in 2005 reflected a growing commitment to human protection on the part of the Council, already evident in its adoption of the protection of civilians as a thematic agenda in resolution 1265 (2000) and in the creation of protection mandates for peacekeeping operations, the first of which came in Sierra Leone in 2000. Nevertheless, the Council was initially reluctant to embrace, let alone act upon, the responsibilities laid out by R2P largely owing to fears on the part of Russia, China, and some non-​Western non-​permanent members

250   Alex J. Bellamy that the new concept masked an interventionist political agenda. Over time, the Council has grown significantly more supportive of R2P and comfortable with its use in both thematic and operational resolutions to the point where the inclusion of R2P language in Council resolutions has become almost habitual in situations characterized by the threat or commission of atrocity crimes. With this has come a raft of new political and operational challenges: the ‘risks of relevance’.3 The chapter proceeds in three main parts. The first reviews in more detail the Council’s place in the evolution of thought on R2P, focusing on the period between Kosovo (1999) and the World Summit (2005). The second briefly examines the Council’s mandate and powers as set out in the UN Charter and some of the underlying political dynamics, which inform how the Council relates to the special responsibilities identified by R2P. The third section charts the Council’s relationship with R2P since the World Summit, showing how—​and why—​the institution charged with primary responsibility for international peace and security has come to a (cautious) embrace of R2P and the special responsibilities contained within it. This chapter does not focus on individual cases, institutions, or the implementation of particular decisions (except where this helps in understanding the larger story) as these are covered extensively throughout this Handbook.

The Security Council, Protection, and R2P: A Brief History The impetus for R2P stemmed largely from perceived failures on the part of the Security Council. Until very recently, and despite the promise of ‘never again’ made after the Holocaust, the Security Council more often than not turned a blind eye to atrocity crimes. During the Cold War, for example, the killing of tens of millions of civilians in Algeria, Angola, Burundi, Biafra (Nigeria), Bangladesh (East Pakistan), Cambodia, China, Colombia, Ethiopia, Guatemala, Indonesia, Iraq, North Korea, Rwanda, Somalia, Sudan, Syria, and Uganda collectively elicited little response from the Security Council. Indeed, although it was protected from formal censure by a threatened Soviet veto, Vietnam was sharply criticized by Council members for invading Cambodia to depose the genocidal Khmer Rouge regime in 1979.4 Matters improved somewhat with the end of the Cold War, but all too often political problems, insufficient resourcing, and prudential considerations produced inadequate responses to atrocity crimes, as Weiss, Thakur, Cater and Malone, and others describe in more detail in this volume. Worst of all, the Security Council stood aside during the Rwandan genocide in 1994 and mandated safe areas that could not be defended in Bosnia, resulting in genocide at Srebrenica in 1995. At the end of the 1990s, a series of sharply critical reports exposed a litany of failures in the composition and implementation of Council mandates intended to ease the

UN Security Council    251 plight of civilians affected by civil war and forced the Council into some fresh thinking.5 Thus although it was a significant diplomatic milestone, the 2005 World Summit agreement on R2P was not a bolt from the blue but rather reflected changing attitudes towards protection already apparent since 1999/​2000 within the Security Council. These changing attitudes were evident in the Council’s adoption of a relatively broad civilian protection agenda encompassing the promotion of compliance with International Humanitarian Law (IHL), operational issues connected to peacekeeping operations and humanitarian access, responses to humanitarian emergencies, and disarmament issues. The Council’s formal engagement with this theme began in 1998 when, at Canada’s request, it adopted a presidential statement calling for the Secretary-​General to submit periodic reports on how the UN might improve the protection of civilians.6 Since then, the Council has held periodic meetings on the protection of civilians, establishing it as one of its major thematic interests. On 17 September 1999, the Council unanimously adopted resolution 1265, which, among other things, signalled the Council’s willingness to take action in response to attacks on civilians and adopted many elements that would later come to be associated with R2P. Specifically, the Council expressed its ‘willingness to respond to situations of armed conflict where civilians are being targeted or humanitarian assistance to civilians is being deliberately obstructed, including through the consideration of appropriate measures at the Council’s disposal in accordance with the Charter of the United Nations’. It also called on Member States to ratify key human rights treaties and work towards ending the ‘culture of impunity’ by prosecuting those responsible for genocide, crimes against humanity, and ‘serious violations of international humanitarian law’. The resolution also expressed the Council’s willingness to explore how peacekeeping mandates might be reframed to afford better protection to endangered civilians. In 2004, the Council issued an Aide Memoire on civilian protection, which was subsequently adopted and developed by the UN’s Office for the Coordination of Humanitarian Affairs (OCHA) to guide its work.7 This was updated by OCHA and noted by the Council in 2009.8 From 2000, new thinking on civilian protection began to be reflected in the Council’s operational mandates. Although peacekeeping operations have sometimes contained human rights components, until the turn of this century it was very rare for civilian protection to be considered a core part of the mission.9 It was not until the publication of the report of the UN’s Panel on Peace Operations—​the so-​called Brahimi Report—​in 2000 that it was judged that peacekeepers who witness violence against civilians should ‘be presumed to be authorized to stop it, within their means’.10 Starting in 1999 with the UN mission in Sierra Leone (UNAMSIL), the Security Council began invoking Chapter VII of the UN Charter to create protection mandates, albeit while inserting some important geographical, temporal, and capabilities-​based caveats.11 By the time of the 2005 World Summit, the Council had already adopted Chapter VII protection mandates for the Democratic Republic of Congo (MONUC, resolution 1291 (2000)), Liberia (UNMIL, resolution 1509 (2003)), Côte d’Ivoire (resolution 1528 (2004)), and Sudan (UNMIS, resolution 1590 (2005)).

252   Alex J. Bellamy It is no coincidence, therefore, that the Security Council’s reaffirmation of R2P came in the context of a thematic resolution on the Protection of Civilians, since the commitments Council members made as part of R2P reflected those already made, and enacted, in relation to the Protection of Civilians.12 Thus, in resolution 1674 (2006), on the protection of civilians, the Council unanimously reaffirmed ‘the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’ (para. 4). It repeated this reaffirmation of R2P in resolutions 1894 (2009) and 2150 (2014). The question here is to what extent the World Summit’s endorsement of R2P established specific responsibilities for the Security Council. Indeed, the question of whether R2P confers responsibilities on specific actors or is limited by its failure to do so has been hotly debated.13 These debates notwithstanding, it is fair to say that the World Summit recognized the Security Council’s special responsibility with respect to the protection of populations from atrocity crimes. Certainly political and normative in content, rather than legal,14 these responsibilities nevertheless make it more difficult for the Council to do nothing in the face of atrocity crimes.15 This much has become evident in the Council’s practice since early 2011. In paragraph 139 of the World Summit Outcome Document, Member States acknowledged an international responsibility to ‘use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter of the United Nations to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’. Paragraph 139 does not leave this international responsibility ‘disembodied’ in the sense that it fails to identify a specific bearer of responsibility.16 On the one hand, it stipulates that the responsibility should be exercised ‘through the United Nations’. On the other, Chapters VI and VIII of the Charter identify specific roles for different UN organs, primarily (but not exclusively) the Security Council. Specifically, Chapter VI permits the Security Council to investigate any dispute or situation likely to give rise to international friction (Article 34) and allows the Council to recommend remedies (Article 36), terms of settlement (Article 37), or recommendations about the pacific settlement of the dispute (Article 38). Chapter VI also allows any Member State to refer any such situation to the Council (Article 35(1)) and requires that parties to a dispute unable to resolve their differences by arbitration bring the matter to the Security Council (Article 37). Among other things, these provisions have facilitated the mandating of diplomacy, commissions of inquiry, special political missions, civilian observation missions, police missions, and peacekeeping operations by the Security Council. The key point for our purposes, however, is that paragraph 139’s reference to Chapter VI provides a mechanism for Member States to bring R2P related matters to the Security Council and identifies the Security Council’s role in discharging the international responsibility to protect populations though ‘diplomatic, humanitarian and other peaceful means’—​a responsibility which, in the terms of paragraph 139, is assumed by the UN on behalf of its members.

UN Security Council    253 Chapter VIII of the Charter, which addresses the role of regional arrangements in the maintenance of international peace and security, also refers to the Security Council. In particular, the Security Council is to encourage the pacific settlement of disputes by regional arrangements (Article 52(3)) and is entitled to utilize such arrangements for enforcement action under its authority (Article 53(1)). The more obvious responsibility bestowed on the Council by paragraph 139 of the World Summit Outcome Document relates to the second element of R2P’s third pillar: ‘We are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-​ by-​case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity’ (para. 139). The UN Secretary-​General observed that the wording of this sentence suggested the need for an ‘early and flexible response in such cases, one both tailored to the circumstances of the situation and fully in accord with the provisions of the Charter’.17 In terms of the locus of responsibility, this sentence opens with ‘we’, indicating that the responsibility lies with each individual Member State rather than with a disembodied ‘international community’. What is more, this shared responsibility is delegated specifically to the Council, which is expressly identified as the appropriate agent. The Council can therefore be thought of as bearing special responsibilities relating to R2P. It is also, of course, the only agent in world politics that holds the international legal authority to authorize the use of military force and other means of coercion outside a context of self-​defence. To better understand the significance of the assigning of these special responsibilities to the Security Council and the context in which the Council exercised these responsibilities, the following section examines the Council’s mandate and characteristics in more detail.

The Security Council in Theory and Practice Article 24 of the UN Charter confers upon the Security Council ‘primary responsibility to international peace and security’. The Council’s responsibility being primary, not exclusive, means that it has no obligation to assume responsibility for every problem of international security. Indeed, aware that it was impossible to predict the security challenges of the future, the drafters of the UN Charter showed considerable foresight in granting the Council substantial latitude to determine its own agenda and adopt whatever measures it deems appropriate, allowing the Council to adapt to the challenges, power configurations, and norms of the day. As such, the Charter awards the Council almost unlimited discretion to define its own business, develop its repertoire of

254   Alex J. Bellamy measures, and respond to situations however it sees fit.18 In pursuit of its mandate, the Council is not obligated to follow principles of international law not found in the UN Charter and is the ultimate judge of its own legality.19 Article 24(2) requires only that the Council discharge its duties in accordance with the purposes and principles of the UN, identified in Article 1 of the Charter, and that it utilize the powers set out in Chapters VI, VII, VIII, and XII of the Charter. As Bosco argues, ‘the Council’s terms of reference were designed to provide all the authority it would need to preserve peace around the world’.20 It is difficult to over-​emphasize the significance of this latitude and the extent to which the Charter bestows discretion upon the Security Council. It is, as Luck argued, ‘a Council for all contingencies’.21 Although this latitude has produced a selective and uneven approach to the world’s security problems, it has ensured the continuing cooperation of the great powers (United States, Russia, and China) whilst allowing the Council to respond to issues when consensus among them has been possible.22 When the Council is at its best, it is this latitude that partly explains its capacity for innovation and ability to tailor measures to specific situations. Of course, this latitude can also facilitate gross inaction and inconsistency by allowing the great powers to further their own interests and protect their friends, but it is the very fact that the Council—​as a profoundly political body—​ provides the great powers with reassurance when it comes to their interests and their friends that explains its endurance, authority, and centrality to world politics. The Council’s powers are laid out in Chapters VI (on the peaceful settlement of disputes), VII (actions with respect to breaches of the peace and acts of aggression), VIII (regional arrangements), and XII (international trusteeship) of the Charter. Although each is important, it is Chapter VII which bestows upon the Council its unique authority to authorize enforcement actions. Article 39 states that the Council ‘shall determine the existence of any threat to the peace, breach of the peace, or act of aggression’ and shall decide what ‘recommendations to make’ or measures to adopt to maintain or restore international peace and security. There are three important points worth stressing here. First, it is for the Council itself to determine when a threat or breach of the peace exists. This is a political, not a legal, decision and is not subject to judicial review. Second, Article 39 awards the Council an explicitly preventive function by referring to threats to international peace and security and requiring action to maintain the peace:  the Council need not wait for threats to materialize (i.e. for the peace to be broken) before it acts. This preventive function is reinforced by Article 40, which permits the Council to adopt ‘provisional measures’ to ‘prevent an aggravation of the situation’ prior to the adoption of recommendations about the resolution of a dispute. Third, Article 39 awards the Council a discretionary right to adopt measures to maintain international peace and insecurity but does not impose any obligation upon it to do so. The unique enforcement powers bestowed upon the Security Council are set out in Articles 41 and 42 of the Charter. Article 41 stipulates that the Council ‘may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures’. These measures ‘may include’ economic sanctions, embargoes, and the severing

UN Security Council    255 of diplomatic arrangements but have, over time, come to include a wide range of different forms of economic sanctions and embargoes as well as other non-​military forms of enforcement such as criminal tribunals or referral of matters to the International Criminal Court. Article 42 determines that ‘[s]‌hould the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate’ it has the authority to ‘take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security’. This involves using the armed forces of UN Member States, and Article 43 requires that Member States make their armed forces available on request for this purpose, subject to the necessary agreements. The initial intention behind Article 43 was that the UN would establish a form of standby forces arrangements with Member States. Instead, in practice the Security Council is required to negotiate individual agreements with Member States. There are three aspects of Article 42 that are particularly noteworthy in relation to R2P. First, it stipulates that before authorizing force, the Council must be convinced that peaceful means would be inadequate. On the one hand, this means that the prudential questions which the ICISS insisted should inform Council decision-​making (see the chapters by Weiss, Thakur, and Cater and Malone in this volume) are already to some extent accounted for by the Charter. On the other hand, there is no expectation that the Council must apply non-​forcible measures prior to authorizing force or that it can authorize force only when other measures have failed. It is not surprising therefore that in his 2009 report on implementing R2P, the Secretary-​General noted that the language of paragraph 139 of the World Summit Outcome Document echoed Article 42 of the Charter in judging that the Council is not obliged to wait until peaceful means have proven inadequate before acting; it need only judge that such action would be inadequate.23 Second, Article 42 recalls the preventive ethos of Article 39 by specifying that force might be used to ‘maintain’ as well as restore international peace and security. Third, the Article permits the Council considerable flexibility in determining precisely when, where, and how to apply measures.24 Although the Security Council enjoys considerable latitude and its decisions are not subject to judicial review, it is not the case either that, prior to R2P, the Council had no expectations placed upon it (besides those that it had placed upon itself) with respect to the protection of populations from atrocity crimes. Both the Genocide Convention and the First Additional Protocol to the Geneva Convention added to the Council’s responsibilities in this area without altering its mandate, functions, and powers. Specifically, they clarified that genocide, war crimes, and the protection of vulnerable populations fall within the rubric of the maintenance of international peace and security and therefore are a proper concern for the Council.25 Article VIII of the Genocide Convention (1948) noted that Member States might approach competent organs of the UN to adopt measures to prevent or respond to genocide. Several governments including the Soviet Union argued that the Security Council would be the appropriate body to enforce the Genocide Convention.26 Whilst this does not widen the capacity of Member States to invite the Security Council to address a situation of concern (Article 35 allows Member States to bring matters ‘which might lead to international friction or give rise to a dispute’

256   Alex J. Bellamy to the Council’s attention) or refer specifically to the Council, it does confirm that genocide and its prevention are to be considered of prima facie relevance for the maintenance of international peace and security. Likewise, Article 89 of Additional Protocol I (1977) to the 1949 Geneva Conventions points the contracting parties to the UN as a potential remedy when there are serious violations of IHL. As with the Genocide Convention, the article does not create additional legal responsibilities and nor does it refer directly to the Security Council. However, it does commit state parties to the Protocol to working through the UN in the event of serious violations and identifies the UN Charter as the appropriate framework for addressing such violations. Although the Security Council enjoys far-​reaching authority and a large degree of latitude there are significant limitations upon it, mostly derived from its political character. Most importantly, the work of the Council and the effectiveness of its resolutions depend to a great extent on its capacity to persuade Member States to implement and sometimes enforce its resolutions. As the editors of The United Nations Security Council and War noted, because it ‘does not in practice command the automatic obedience of states’ the Council must persuade Member States to implement its decisions.27 The Council has few material resources at its direct disposal and therefore relies almost entirely on the goodwill of Member States to provide the (sometimes extensive) resources required to implement its decisions.28 The Council has direct control only of its subsidiary bodies, which are often staffed from existing resources within the UN Secretariat. Where more ambitious subsidiary bodies are established, such as an international criminal tribunal, the Council must request additional resources from the Member States. For the rest of its activities, including peacekeeping operations, enforcement actions, and policing sanctions, Article 25 notwithstanding, the Council must rely on its ability to persuade Member States to commit the resources, capabilities, and political capital necessary to implement its decisions. The wider membership’s willingness to implement the Council’s decisions is shaped by the extent to which it supports a particular decision and recognizes the Council’s legitimacy, as well as wider considerations of policy priorities and competing demands on national resources. As a result, historically speaking, the implementation of Council decisions has been patchy at best.29 It is also important to reiterate that the Council is a political (as opposed to judicial) body comprising sovereignty-​wielding Member States whose ideologies, interests, allegiances, and preferences influence the positions they adopt on particular issues and which change over time. As Luck argues, the Council is not above global politics: it is a political forum and as such its decision-​making is conditioned by the prevailing political context.30 It is precisely because it is a political body that it can sometimes marshal and coordinate the policies of powerful states and that it can bear authority and legitimacy for the use of force. But that also means that its decisions are inherently political ones and that the Council’s decision-​makers are as least as concerned about sovereignty and interests, their own included, as other UN Member States.31 Finally, when it comes to the specific question of preventing and responding to atrocity crimes, it is important to recognize the limits of what can be achieved at an acceptable cost. As Annan noted in relation to the Rwandan genocide, the source of genocide

UN Security Council    257 is often deeply rooted within societies.32 Such problems are not readily susceptible to outside mediation whether (as in the case of Rwanda) because one or more of the parties have embarked implacably on a course of action leading to atrocities or (as in the case of Syria) because a situation is so complex, fraught with dangers and potential unintended consequences as to defy easy resolution.33 Indeed, studies have repeatedly shown that only the hardest and most serious cases are brought to the Council.34 Situations usually reach the Council only when others have tried, and failed, to find a resolution.

The Security and R2P since 2005 Bearing in mind the Charter framework, the strictures under which the Council operates and the idea that the adoption of R2P in 2005 reflected emerging trends already evident within the Security Council, this section provides a brief overview of the Council’s engagement with R2P since 2005. It argues that in the years immediately following the World Summit, the Council exhibited a significant degree of caution towards R2P and its inclusion in resolutions was achieved only at a significant political cost. Over time, these concerns lessened for three principal reasons (use of R2P outside the Council, high profile failures to use R2P to legitimize force, the Secretary-​General’s work on clarifying the principle and building consensus), strengthening the apparent ties between R2P and the Council’s ongoing protection work. This made the Council more willing to utilize the principle in a variety of different contexts and to break new ground in Libya on the use of force for human protection purposes. This usage has, of course, brought its own challenges and controversies, some of which are examined in what follows. The Council was initially slow and cautious about R2P, reflecting more generalized attitudes among sections of the UN membership that remained cautious, if not outright hostile, to R2P on the grounds that it constituted a potential challenge to sovereignty and a licence for intervention. Immediately after the World Summit, Annan proposed that the Council affirm R2P as part of its Protection of Civilians agenda. Initially, China, Russia, Algeria, the Philippines, and Brazil argued that this was premature because the World Summit had merely committed the General Assembly to further deliberation on R2P and had not yet enacted the principle such that the Council could act upon it.35 Algeria argued that R2P was ‘a concept about which there is still no unanimity within the international community and whose parameters will still need to be rigorously defined’ and Egypt maintained that the Council’s remit on protection covered only situations of armed conflict and not the wider range of contexts implied by R2P.36 In addition to the predictable Western support, the inclusion of R2P in the Council’s programme of work received strong support from sub-​Saharan African states: Rwanda argued that the Council must take up the collective responsibility enshrined in R2P, Benin signalled ‘full support’ for the reaffirmation of R2P by the Council, and Tanzania argued that ‘when governments fail or are unable to offer such protection, we should have a collective responsibility to protect humanity’ acting through the Security Council—​a view that

258   Alex J. Bellamy was supported by South Africa.37 Nevertheless, Russian and Chinese concerns were sufficient to ensure that the Council did not reaffirm R2P at its December 2005 meeting on the protection of civilians. It took several more months of diplomacy and the addition of more favourably inclined non-​permanent members (specifically Congo, Ghana, Slovakia, Qatar, and Peru) to persuade the Council to reaffirm what had been unanimously adopted by the General Assembly in September 2005. Within that context, the inclusion of R2P considerations in substantive resolution proved difficult and controversial, requiring a significant investment of political capital by the concept’s supporters. Thus, whilst the Council mentioned R2P in a preambular paragraph of the relatively routine resolution 1653 (27 January 2006) on the situation in Burundi and DRC, the campaign to include similar language in resolution 1706 (2006), in which the Council tried to respond to the situation in Darfur by authorizing the redeployment of elements of UNMIS into conflict-​affected regions in Darfur, delayed passage of the resolution itself and jeopardized consensus upon it. When the resolution was passed, several Council members, including China, which abstained, expressed concern about the pressure brought to bear to secure this reaffirmation of R2P.38 The following year, a reference to R2P in the draft preamble of resolution 1769 had to be removed before the resolution was adopted and in 2008 the Security Council decided not to refer to the principle in resolution 1814 on Somalia despite its inclusion in a report by the Secretary-​General’s Special Representative to the country.39 It would be almost five years before the Council would refer to R2P in relation to another country situation. During this time, major protection crises in Sri Lanka, Guinea, Kenya, the eastern Democratic Republic of Congo (DRC), Kyrgyzstan, Somalia, Darfur, and Sudan/​South Sudan came and (to some extent) went. Writing in 2009, Strauss summed up the state of play in the Security Council during this period when he observed that ‘the lack of unity in the Council or, in fact, the opposition of some Member States prevented the Council so far from applying the responsibility to protect on a specific country situation’.40 Matters outside the Council, from early 2008, were largely responsible for changing attitudes towards R2P within it, such that a working consensus on the principle could be established, paving the way for its adoption in the Council’s work. Three factors in particular stand out. First, the self-​conscious use of an R2P lens to frame Kofi Annan’s successful diplomatic mediation in 2008, which brought an early end to inter-​communal violence in Kenya, provided tangible evidence of the principle’s capacity to support atrocity prevention through non-​coercive peaceful means. It also challenged the still widely perceived association between R2P and humanitarian intervention, which had hitherto helped stymie the principle’s implementation.41 Second, in 2008 two permanent members of the Security Council attempted to use R2P to legitimize the use of force in situations that fell outside what was agreed in 2005. That they both failed proved significant. In May, French foreign minister Bernard Kouchner called for R2P to be invoked in relation to Myanmar in order to facilitate the delivery of humanitarian aid without the government’s consent in the wake of Cyclone Nargis. A few months later, in August, Russia claimed that its invasion of Georgia was justified by R2P because the invasion aimed at preventing genocide in South Ossetia.

UN Security Council    259 Both claims failed to secure international support (the French claim because R2P does not extend to natural disasters; the Russian because there was no genocide and R2P does not legitimize unilateral intervention even when there is), including from key allies such as the United Kingdom in the case of Myanmar and China in the case of Georgia. As a result, both France and Russia were forced into a diplomatic retreat. Ironically, these experiences helped further clarify the limits of R2P and persuade cautious Member States that the principle did not provide an additional effective means of legitimizing unilateral intervention.42 Third, UN Secretary-​General Ban Ki-​moon irrevocably changed the diplomacy surrounding R2P by appointing Edward Luck as his first Special Adviser on R2P, charged with advancing the political and institutional development of the principle (Luck was succeeded by Jennifer Welsh in this post in 2013).43 Luck’s appointment represented an important turning point. Adopting a consultative approach based on a detailed dissection of the 2005 agreement, the Special Adviser engaged in dialogue with Member States on the meaning, scope, and limits of R2P. Vital to this approach was Luck’s sharp distinction between what states had actually agreed in 2005 and a variety of alternative formulations such as the doctrine of humanitarian intervention and ICISS recommendations.44 The Secretary-​General delineated R2P into three non-​sequential pillars and clarified that the principle was essentially political and normative, that it conformed to the UN Charter and did not aspire to amend international law.45 The Secretary-​General’s approach reflected closely what states had agreed in 2005, reassured them about R2P’s aspirations, and helped establish a new and stronger consensus upon which to begin discussion about implementation. In the immediate term, this prompted the UN General Assembly to resolve to continue to consider its implementation in 2009. Within the context of the Council’s deepening engagement with the protection of civilians, these three factors helped deepen consensus on R2P. However, it was the dramatic events of the Arab Spring that pushed the Security Council into giving voice to that new consensus. In March 2011, the Security Council responded to the violent crackdown on opposition forces by the government in Libya with resolution 1970. Issued under Chapter VII of the UN Charter, the resolution referred specifically to R2P and demanded an immediate cessation of violence, established a political process, imposed targeted sanctions, and referred the situation to the International Criminal Court (ICC). When the Gadhafi regime failed to comply, the Council took the unprecedented step of authorizing the use of force to protect civilians from imminent danger, enforce a no-​ fly zone, and enforce an arms embargo (resolution 1973). A few days later, the Council unanimously adopted resolution 1975 on Côte d’Ivoire. In a context of escalating post-​ election violence there, the Council declared Alassane Ouattarra to be the country’s president and authorized the use of force to protect the civilian population. These three resolutions, passed without a single negative vote, clearly demonstrated the Council’s determination to act on its responsibility to protect populations, including through the use of force when necessary and possible. They also signalled a new phase in the Council’s engagement with the broader question of protection.46

260   Alex J. Bellamy It is hard to overstate the significance of resolution 1973 (2011) and the Council’s response to the crisis in Libya more generally. Most notably, resolution 1973 (March 2011)  was the Council’s first to mandate the use of force for the purpose of human protection without the consent of the relevant recognized government. Although the Council had come close in the past it had never before crossed the line.47 In resolution 794 (December 1992) the Council authorized the Unified Task Force to enter Somalia to ease the humanitarian crisis but this was in the absence of a recognized government rather than without the consent of one. In resolution 929 (June 1994), the Security Council authorized the French-​led Operation Turquoise, ostensibly with the humanitarian aim to protect victims of the ongoing genocide in Rwanda. That operation enjoyed the formal consent of the interim government in Rwanda. In resolution 940 (September 1994) the Security Council authorized the use of force to oust the military junta in Haiti. But this mandate was expressly supported by Haiti’s recognized government as the Council formally noted (S/​1994/​905 annex). One older example sometimes cited is the authorization granted to the British to use force in southern Rhodesia in 1965. But Ian Smith’s racist regime never came close to being recognized as a state. More recently in the DRC, Sudan, and Côte d’Ivoire, the Security Council authorized the use of all necessary measures to protect civilians, but the blue-​helmet operations in these countries all operate with the official permission of the governments concerned. This was not the case in Libya. The Security Council has thus entered new political terrain: authorizing force to protection populations without the consent of the recognized government. Also significant in the Council’s response to the crisis in Libya was its willingness to quickly apply a raft of measures short of force to coerce and persuade the Libyan authorities to change course. One recent assessment suggests that the Council utilized almost the whole of its ‘preventive toolkit’ in resolution 1970, prior to authorizing the use of force.48 Finally, it is important to stress that the Council’s references to R2P in resolutions 1970 and1973 were not isolated aberrations. At the time of writing, the Council had referred to R2P in no fewer than five resolutions on Libya (resolutions 1970 (2011); 1973 (2011); 2016 (2012); 2040 (2012); 2093 (2013)). Whilst the landmark resolution 1973 was undoubtedly a product of special circumstances unlikely to be repeated often, the Council’s embrace of R2P beyond these two resolutions in the case of Libya is suggestive of a deeper transformation of its collective attitude towards the principle.49 Unsurprisingly, resolution 1973 quickly became a critical test for R2P. According to Gareth Evans, resolutions 1970 and 1973 provided ‘a textbook example of how R2P is supposed to work in the face of a rapidly unfolding mass atrocity situation’.50 However, some Member States criticized the manner in which these mandates were implemented. Critics, including the governments of Brazil, China, India, Russia, and South Africa, complained that NATO and its partners overstepped their Security Council mandates by pursuing regime change, used disproportionate force, and ignored or outright rejected opportunities for political dialogue.51 Subsequently, Russia claimed that the Libya experience coloured its thinking on Syria, pushing it to resist Western pressure on the al-​Assad regime on the grounds that this might open the door to regime change.52

UN Security Council    261 The experience in Libya also prompted Brazil to propose ‘responsibility while protecting’, calling upon the Security Council to enhance accountability measures, focus on the non-​coercive measures at its disposal, employ judicious analysis before authorizing the use of force, and follow broad prudential principles in its decision-​making on these questions.53 However, vigorous debate over the implementation of resolution 1973 on Libya did not weaken the Council’s position on R2P. In fact, the Security Council has proven more willing to refer to R2P in relation to specific situations since Libya than it was before, suggesting that the convergence of R2P with its ongoing work on the protection of civilians and the other factors described earlier have helped consolidate R2P as an established principle which is accepted and utilized by the Council. Moreover, practice since 2011 suggests that the Council also increasingly expects UN Member States to adhere to R2P. From four resolutions mentioning R2P in 65 months before resolution 1973 on Libya, at the time of writing the Council had notched up 17 resolutions mentioning R2P in 40 months, and an additional four presidential statements and two thematic resolutions. One striking feature characteristic of the Council’s adoption of R2P since 2011 has been the sheer variety of circumstances in which it has been employed, suggesting the Council’s deeper consensus on the principle has gone hand-​in-​hand with recognition that R2P is not related only to the use of force—​though the Council has been prepared to refer to it in that context too. Rather, the Council understands that it can pursue the principle’s goals through the full panoply of measures at its disposal. Another key point is that the inclusion of R2P in resolutions and statements has become significantly less controversial than it was in the years immediately following the 2005 agreement. Resolution 1975 (30 March 2011) on Côte d’Ivoire was adopted unanimously. Adopted under Chapter VII of the Charter, this resolution reaffirmed the primary responsibility of each state to protect civilians and authorized a strengthening of the UN mission there (UNOCI) to include the use of ‘all necessary means’ to protect civilians. None of the Council’s members referred to R2P in their statements on the resolution, suggesting that its inclusion had not been controversial.54 Resolution 1996 (2011) on South Sudan was also adopted unanimously. This resolution, also adopted under Chapter VII of the Charter, established a UN mission to South Sudan (UNMISS), with a mandate to—​among other things—​advise and assist the government ‘in its responsibility to protect civilians’. The resolution was adopted without statements being offered by Council members suggesting, once again, that the inclusion of R2P was uncontroversial.55 Likewise, resolution 2014 on Yemen was adopted unanimously and without statements.56 In this resolution, the Council reminded the Yemeni government of its primary responsibility to protect its population. Acting under Chapter VII, resolution 2085 (2012) authorized the deployment of an African-​led International Support Mission in Mali (AFISMA) to, among other things, ‘support the Malian authorities in their primary responsibility to protect the population’. The resolution was adopted unanimously and the inclusion of R2P was not mentioned in the formal statements offered by Council members.57 Each of the two additional resolutions on Libya (resolution 2016 (2011) and resolution 2040 (2012)) underscored the primary responsibility of the government to

262   Alex J. Bellamy protect the population, with the former paying particular attention to the protection of foreign nationals and African migrants. Both were adopted unanimously and without formal statements. R2P continued to feature large in the Council’s work on Mali, CAR, and South Sudan in 2013–​14, and in 2013 the Council also referred to R2P in the context of the ongoing situation in Somalia (resolution 2093, 6 March 2013)—​especially significant given that some years earlier, R2P language had been removed from a draft resolution on the situation there before it could be passed. All this has been overshadowed somewhat by the Council’s inability to respond in a timely and decisive fashion to the crisis in Syria. Syria stands as a stark reminder, should one be needed, that the Council is a political body—​one that is subject to the competing interests, values, and power relations of its Member States. But it is from this very fact that the Council derives both its unique authority and its unique capacity to enforce its demands when common ground between its members can be found. Indeed, the veto powers and flexibility bestowed upon the Council by the Charter are among the principal reasons why the great powers continue to recognize the Council’s authority and utility, and to work through the Council when they can. At critical moments of the Syria crisis, consensus has occasionally been possible in the Council, especially on questions relating to the potential commission of atrocity crimes. This reflects expectations outside the Council, expressed explicitly by the UN General Assembly, that the Council has special protection responsibilities and fails in its responsibility when it chooses to not adopt measures in relation to protection crises. Significantly, R2P has become part of the common ground on Syria established by the Security Council, providing more evidence of the principle’s increasing embeddedess within the Council. The chemical weapons attack in Ghouta, on 21 August 2013, may have killed as many as 1,000 civilians. The attack forced the Council’s hand, not least because it seemed to violate norms relating to both the non-​use of chemical weapons and atrocity crimes, pushing it first to demand an independent investigation by the UN and then, when that investigation provided evidence of the regime’s responsibility, to take steps to eliminate chemical weapons in Syria. At the same time, the Council also began to demand compliance with IHL, humanitarian access, and to remind the Syrian government of its responsibility to protect. Notably, in resolution 2165 (14 July 2014), the Security Council authorized the delivery of humanitarian assistance without the consent of the Syrian government and, in doing so, reminded the authorities of their responsibility to protect. All of this suggests that even those Council members most cautious about R2P, such as Russia and China, find it increasingly difficult to oppose collective action when confronted with clear evidence of one side’s culpability for war crimes or crimes against humanity or the overt obstruction of humanitarian assistance to the victims. What is more, even these states view R2P as legitimately part of the common ground that can be established on Syria. But to understand the full relevance of R2P in this case, it is important to situate the Council’s decision-​making on Syria within its wider political context, and in particular within the context of emerging expectations that the Council has special responsibilities when it comes to the protection of populations from atrocity crimes. On 16 February

UN Security Council    263 2012, two weeks after a second draft Security Council resolution had been vetoed by Russia and China, the General Assembly voted by 137 to 12 (with 17 abstentions) to adopt a resolution which contained much of the text from the rejected Council draft. The General Assembly ‘strongly condemned’ the ‘widespread and systematic violations of human rights and fundamental freedoms by the Syrian authorities’, called on all armed groups to put an immediate end to violence and reprisals, supported the Arab League’s peace initiative, and called on the Secretary-​General to lend his support.58 Among those states that supported the resolution were some of the most strident critics of the NATO-​led intervention in Libya, including Brazil, India, South Africa, and Pakistan. The General Assembly expressed its expectations of the Security Council (and sense of disappointment at it) more clearly a few months later, on 3 August 2012—​a day after Kofi Annan announced his decision to resign as the joint envoy for Syria, citing the parties’ unwillingness to abide by their commitments and the Security Council’s inability to impose consequences on the parties for non-​compliance. The General Assembly adopted a second resolution on the situation in Syria, again by a large majority of 132 votes to 12.59 This resolution ‘deplored’ the failure of the Security Council to adopt measures on Syria,60 sending a clear signal that the Assembly expected the Council to address the protection crisis in Syria and that the Council’s position did not reflect the views of the wider UN membership. From this brief snapshot of the Council’s practice since 2005, there seems to be a clear trend towards a deepening of commitment towards R2P and its goals of human protection, especially in relation to atrocity crimes. More specifically, there is evidence to suggest that the Council is increasingly recognizing that it has a responsibility to adopt measures to protect populations from atrocity crimes. Thus, even in the most contentious and heavily politicized situations, such as Syria, the Council has not baulked entirely from acknowledging protection responsibilities: in that case it has condemned atrocity crimes, demanded compliance with IHL, mandated the demolition of chemical weapons stockpiles, and authorized the delivery of humanitarian assistance without the government’s consent. These may not amount to an effective ‘timely and decisive’ response—​and it bears remembering that the Council has thus far rejected (due to Russian and Chinese vetoes) proposals to impose economic sanctions and an arms embargo, and to refer the matter to the International Criminal Court—​but the fact that many Council members have focused their efforts on the protection of vulnerable populations and that Russia and China have not resisted every effort at protection suggests that there have been normative shifts in the Council’s practice in relation to R2P. These shifts are affecting what stances can, and cannot, be legitimized. It would be difficult, for example, to explain Russian support for resolutions directly challenging its ally, Syria, without understanding changes to the normative context within the Security Council relating to R2P and the Council’s longer engagement with protection issues. Added to this, the General Assembly’s stance on Syria lends further weight to the argument that although the Council has been divided and cautious in its response, this has not been a reflection of a general weakening of commitment to the principles of R2P but rather a reflection of the difficulties of this particular case. The General

264   Alex J. Bellamy Assembly—​including many states that expressed reservations about the NATO-​led intervention in Libya—​clearly signalled that the Council’s inaction on Syria did not reflect attitudes in the wider UN membership. What is more, these General Assembly resolutions indicate that amongst the wider UN membership there is recognition that the Security Council bears special responsibilities for human protection and an expectation that it should act upon those responsibilities.

Conclusion The Security Council’s relationship with R2P ought to be viewed in the wider context of its evolving practice on human protection. As I noted earlier, borrowing from Luck, the Council’s efforts are constrained and shaped by the facts that there are some problems that do not have feasible near-​term solutions and that the Council is not above the vagaries of global politics but very much a part of them.61 As a result, from case to case the Council is inconsistent and unpredictable and it is not always possible to draw clear connections between its handling of different situations. Such inconsistencies—​ inevitable given the nature of the Council and of international order—​should not blind us, however, to the deeper, longer-​term transformations in the Council’s practice, chief among which is the embedding of its focus on human protection, especially in the context of atrocity crimes. As the Council has become more active in the field of human protection—​an activism which reflects expectations voiced in the General Assembly—​ so too have the operational and political challenges increased. These include challenges of legitimacy (relating to the management of expectations), politics (relating to the accountability of states acting upon Council mandates and its relationship with regional bodies), and practice (relating to the conduct of its operations and the sourcing of capabilities from UN Member States), many of which are explored in more detail in other contributions to this Handbook.

Notes 1. Annan 1999a. 2. ICISS 2001. 3. Luck 2011. 4. Wheeler 2000, pp. 89–​100. 5. Especially Annan 1999b and Independent Inquiry 1999. 6. UN doc. S/​1998/​318, 13 April 1998. 7. OCHA 2004; Bowden 2006. 8. UN doc. S/​PV.6066, 14 January 2009. 9. See Månsson 2005, 2006. 10. UN 2000, p. x. 11. See Holt and Berkman 2006; Holt et al. 2009.

UN Security Council    265 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25.

On the connections between R2P and the Protection of Civilians see Francis et al. 2012. See Ralph and Erskine in this volume, and Pattison 2010; Roff 2013. Luck 2010, pp. 349, 363. Chesterman 2011, p. 279. As Pattison 2010 argues. United Nations General Assembly 2009, p. 49. Lowe et al. 2008; Luck 2006, 2008. Zemanek 2007, p. 505. Bosco 2009, p. 22. Luck 2008, p. 63. Roberts and Zaum 2008. United Nations General Assembly 2009, note 9. See Luck 2006, p. 23. Though Schindler (2003, p. 174) exaggerates when he refers to the Security Council as the ‘supreme guardian of international humanitarian law’, as does Louise Arbour (2008) when she claims that the Council has a specific legal obligation to prevent genocide. 26. Quigley 2006, p. 268. 27. Lowe et al. 2008, p. 30. 28. For example, see Barnett 1995, p. 429; Hurd 2007, p. 14. 29. For a study of compliance with resolutions on civil war see Perry and Cockayne 2010; Mikulaschek and Perry 2013. 30. Luck 2006, p. 8. 31. Luck 2010. 32. Annan 2012, p. 74. 33. Luck 2006, p. 8. 34. For instance, Gilligan and Stedman 2003. 35. Security Council Report 2006. 36. UN doc. S/​PV.5319 (Resumption 1), 9 December 2005. 37. UN doc. S/​PV.5319 (Resumption 1), 9 December 2005. 38. Teitt 2009, pp. 220–​1. 39. Strauss 2009a, pp. 57–​8. 40. Strauss 2009a, p. 58. 41. See Annan 2012, pp. 189–​202; Preston-​McGhie and Sharma 2012. 42. Badescu and Weiss 2010. 43. See A/​62/​512/​Add.1, 30 October 2007, para. 31, A/​RES/​62/​238, 20 February 2008, and GA/​ AB/​3837, 4 March 2008. For a discussion see Strauss 2009b, p. 301. 44. Luck 2007. 45. United Nations General Assembly 2009. 46. Bellamy and Williams 2011. 47. Despite suggestions to the contrary, e.g. Hehir 2013. The following examples are raised by Hehir to support his claim that the Council did not break new ground in resolution 1973; none of them support his case. 48. Reike 2012. 49. On the special circumstances leading to resolution 1973 see Bellamy 2011; Bellamy and Williams 2011. 50. Evans 2012. 51. UN doc. S/​PV.6531, 10 May 2011.

266   Alex J. Bellamy 52. See Gifkins 2012. Russia’s claim is not persuasive however. Few Moscow-​based analysts see Libya as a pressing concern in dictating policy on Syria, and Russia’s position on Syria has not been adopted by other critics of the Libya campaign, notably Brazil, India, and South Africa. See Bellamy 2014. 53. See Stuenkel’s chapter in this volume. See also Almeida 2014; Stuenkel 2014; McDougall 2014. 54. UN doc. S/​PV.6508, 30 March 2011. 55. UN doc. S/​PV.6576, 8 July 2011. 56. UN doc. S/​PV.6634, 21 October 2011. 57. UN doc. S/​PV.6898, 20 December 2012. 58. GA Res. 66/​253 (21 February 2012). 59. GA Res. 66/​253 B (7 August 2012). 60. GA Res. 66/​253 B, para. 11. 61. Luck 2006, pp. 7–​8.

References Almeida, Paula Wojcikiewicz (2014). ‘Brazilian View of the Responsibility to Protect: From Non-​ Indifference to Responsibility while Protecting’, Global Responsibility to Protect 6(1): 29–​61. Annan, Kofi (1999a). ‘Annual Report of the Secretary-​General to the United Nations’, 20 September. Annan, Kofi (1999b). ‘Report of the Secretary-​ General Pursuant to General Assembly Resolution 53/​55: The Fall of Srebrenica’, A/​54/​549, 15 November. Annan, Kofi (2012). Interventions: A Life in War and Peace (New York: Penguin). Arbour, Louise (2008). ‘The Responsibility to Protect as a Duty of Care in International Law and Practice’, Review of International Studies 34(3): 445–​58. Badescu, Cristina G. and Thomas G.  Weiss (2010). ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’, International Studies Perspectives 11(4): 354–​74. Barnett, Michael (1995). ‘Partners in Peace? The United Nations, Regional Organizations and Peacekeeping’, Review of International Studies 21(4): 411–​33. Bellamy, Alex J. (2011). ‘Libya: The Exception and the Norm’, Ethics and International Affairs 25(3): 263–​9. Bellamy, Alex J. (2014). ‘From Tripoli to Damascus: Lesson Learning and the Implementation of the Responsibility to Protect’, International Politics 51(1): 23–​44. Bellamy, Alex J. and Paul D. Williams (2011). ‘The New Politics of Protection: Côte d’Ivoire, Libya and the Responsibility to Protect’, International Affairs 87(4): 825–​50. Bosco, David L. (2009). Five to Rule Them All: The UN Security Council and the Making of the Modern World (Oxford: Oxford University Press). Bowden, Mark (2006). ‘The Protection of Civilians’, in Bertrand G. Ramcharan (ed.), Human Rights Protection in the Field, special issue of International Studies in Human Rights 87: 59–​70. Brazil, government of (2011). ‘Responsibility while Protecting: Elements for the Development and Promotion of a Concept’, UN Document A/​66/​551–​S/​2011/​701, 11 November. Chesterman, Simon (2011). ‘ “Leading from Behind”: The Responsibility to Protect, the Obama Doctrine and Humanitarian Intervention after Libya’, Ethics and International Affairs 25(3): 279–​85.

UN Security Council    267 Evans, Gareth (2012). ‘Responding to Mass Atrocity Crimes: The Responsibility to Protect after Libya and Syria’. Public lecture, Central European University, Budapest, 24 October. Francis, Angus, Vesselin Popovski, and Charles Sampford (eds.) (2012). Norms of Protection:  Responsibility to Protect, Protection of Civilians and their Interaction (Tokyo: United Nations University Press). Gifkins, Jess (2012). ‘The UN Security Council Divided: Syria in Crisis’, Global Responsibility to Protect 4(4): 377–​93. Gilligan, Michael and Stephen John Stedman (2003). ‘Where do the Peacekeepers Go?’, International Studies Review 5(4): 37–​54. Hehir, Aidan (2013). ‘The Permanence of Inconsistency: Libya, the Security Council and the Responsibility to Protect’, International Security 38(1): 137–​59. Holt, Victoria K. and Tobias C.  Berkman (2006). The Impossible Mandate? Military Preparedness, The Responsibility to Protect and Modern Peace Operations (Washington, DC: The Henry L. Stimson Center). Holt, Victoria K., Glynn Taylor, and Max Kelly (2009). Protecting Civilians in the Context of UN Peace Operations: Successes, Setbacks and Remaining Challenges (New York: Independent Study for the DPKO and OCHA). Hurd, Ian (2007). After Anarchy: Legitimacy and Power in the United Nations Security Council (Princeton, NJ: Princeton University Press). Independent Inquiry (1999). ‘Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda’, S/​1999/​1257, 12 December. International Commission on Intervention and State Sovereignty (ICISS) (2001). The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre). Lowe, Vaughan, Adam Roberts, Jennifer Welsh, and Dominik Zaum (2008). ‘Introduction’, in Vaughan Lowe, Adam Roberts, Jennifer Welsh, and Dominik Zaum (eds.), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (Oxford: Oxford University Press), pp. 1–​58. Luck, Edward C. (2006). UN Security Council: Practice and Promise (Abingdon: Routledge). Luck, Edward C. (2007). ‘The Responsible Sovereign and the Responsibility to Protect’, Annual Review of United Nations Affairs 2006/​2007 (Oxford: Oxford University Press), pp. 33–​44. Luck, Edward C. (2008). ‘A Council for all Seasons: The Creation of the Security Council and its Relevance Today’, in Vaughan Lowe, Adam Roberts, Jennifer Welsh, and Dominik Zaum (eds.), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (Oxford: Oxford University Press), pp. 61–​85. Luck, Edward C. (2010). ‘The Responsibility to Protect:  Growing Pains or Early Promise?’, Ethics and International Affairs 24(4): 349–​65. Luck, Edward C. (2011). ‘The Responsibility to Protect: The First Decade’, Global Responsibility to Protect 3(1): 1–​13. McDougall, Derek (2014). ‘Responsibility While Protecting: Brazil’s Proposal for Modifying Responsibility to Protect’, Global Responsibility to Protect 6(1): 64–​87. Månsson, K. (2005). ‘Use of Force and Civilian Protection: Peace Operations in the Congo’, International Peacekeeping 12(4): 503–​19. Månsson, K. (2006). ‘Integration of Human Rights in Peace Operations:  Is There an Ideal Model?’, International Peacekeeping 13(4): 547–​63. Mikulaschek, Christoph and Chris Perry (2013). ‘When do Civil War Parties Heed the UN?’ International Peace Institute Policy Paper, 11 December.

268   Alex J. Bellamy Office for the Coordination of Humanitarian Affairs (OCHA) (2011), Aide-​Memoire for the Consideration of Issues Pertaining to the Protection of Civilians, 4th edn. (New York: OCHA Policy Development and Studies Branch). Pattison, James (2010). Humanitarian Intervention and the Responsibility to Protect:  Who Should Intervene? (Oxford: Oxford University Press). Perry, Chris and James Cockayne (2010). ‘The UN Security Council and Civil Wars: Insights from a New IPI Study’. International Peace Institute Policy Paper, 7 September. Preston-​McGhie, Meredith and Serena Sharma (2012). ‘Kenya’, in Jared Gensler and Irwin Cotler (eds.), The Responsibility to Protect: The Promise of Stopping Mass Atrocities in Our Time (Oxford: Oxford University Press), pp. 279–​97. Quigley, John (2006). The Genocide Convention: An International Law Analysis (Aldershot: Ashgate). Reike, Ruben (2012). ‘Libya and the Responsibility to Protect: Lessons for the Prevention of Mass Atrocities’, St. Antony’s International Review 8(1): 122–​49. Roberts, Adam and Dominik Zaum (2008). ‘Selective Security:  War and the UN Security Council Since 1945’. Adelphi Paper No. 395 (London:  Routledge for the International Institute for Strategic Studies). Roff, Helen (2013). Global Justice, Kant, and the Responsibility to Protect: A Provisional Duty (Abingdon: Routledge). Schindler, Dietrich (2003). ‘International Humanitarian Law: Its Remarkable Development and its Persistent Violation’, Journal of the History of International Law 5(2): 165–​88. Security Council Report (2006). ‘Protection of Civilians in Armed Conflict’, vol. 4, 13 December. Strauss, Ekkehard (2009a). The Emperor’s New Clothes? The United Nations and the Imple­ mentation of the Responsibility to Protect (Baden-​Baden: Nomos). Strauss, Ekkehard (2009b). ‘A Bird in the Hand is Worth Two in the Bush: On the Assumed Legal Nature of the Responsibility to Protect’, Global Responsibility to Protect 1(3): 291–​323. Stuenkel, Oliver (2014). ‘The BRICS and the Future of R2P: Was Syria or Libya the Exception?’, Global Responsibility to Protect 6(1): 3–​28. Teitt, Sarah (2009). ‘Assessing Polemics, Principles and Practices: China and the Responsibility to Protect’, Global Responsibility to Protect 1(2): 208–​36. United Nations (2000). Report of the Panel on United Nations Peace Operations, UN doc. A/​55/​ 305, S/​2000/​809. United Nations General Assembly (2009). Implementing the Responsibility to Protect: Report of the Secretary-​General, A/​63/​677, 12 January. Wheeler, Nicholas J. (2000). Saving Strangers:  Humanitarian Intervention in International Society (Oxford: Oxford University Press). Zemanek, Karl (2007). ‘Is the Security Council the Sole Judge of its Own Legality?’, in August Reinisch and Ursula Kriebaum (eds.), The Law of International Relations—​Liber Amicorum Hanspeter Neuhold (Utrecht: Eleven International Publishing), pp. 483–​505.

Chapter 15

UN General As se mbly Megan Schmidt

With the unanimous endorsement of the responsibility to protect (R2P), Heads of State and Government recognized that sovereignty entails responsibilities of the state to its people related to the protection from genocide, war crimes, crimes against humanity, and ethnic cleansing. Since the endorsement of R2P at the United Nations (UN), progress has occurred at an unprecedented speed at the normative and operational levels, with the past ten years also serving to identify challenges for the prevention of and response to atrocities. The United Nations General Assembly (UNGA) has been the central forum for R2P’s normative development, and a growing actor within the UN system for its implementation. The mandate and structure of the UNGA as articulated in the UN Charter illustrates the appropriateness of this body to serve as the principal forum for R2P’s conceptual development. The UNGA functions as a ‘standing international conference’, serving as a ‘forum for deliberation among member governments providing collective legitimation (or de-​legitimation) of norms, rules, and actions’.1 This function of the Assembly stems from Chapter IV of the Charter, which notes that this body is the platform for Member State discussion on ‘any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs’.2 The UNGA meets both in the General Committee and in six committees designated to focus on specific areas of work. There are two committees of particular relevance for R2P:  the Third Committee on Social, Humanitarian and Cultural matters; and the Fifth Committee on Administrative and Budgetary issues. With regard to the former, this Committee is viewed as the body tasked with handling human rights issues and engaging with the Human Rights Council (HRC). The Third Committee has proven increasingly critical for undertaking action on atrocity crimes in the Democratic People’s Republic of Korea (DPRK) and Syria. As the Fifth Committee focuses on budgetary matters, it possesses the ability to provide or withhold funds for the UN Office for the Prevention of Genocide and R2P. The financial support of this office, which houses the Special Advisers on the Prevention of Genocide and R2P and is responsible for the advancement of these agendas within the UN system,

270   Megan Schmidt has proven highly controversial and thus must be considered when reflecting on the UNGA and R2P. This chapter will provide an analysis of the UNGA’s influence on R2P’s development by focusing on four main areas. First, this chapter will provide an overview of the negotiation process that resulted in the inclusion of R2P within the World Summit Outcome Document. Second, it will reflect on how the UNGA, through the annual dialogue process, has contributed to the normative advancement of the principle. Third, an assessment of Third Committee actions in relation to the aforementioned countries will explore the Assembly’s role in facilitating action for atrocities prevention and response. Fourth, this chapter will explore the debate on financial support as it relates to R2P and the effect this has had for the principle’s advancement.

2005 World Summit Negotiations and the Articulation of R2P The UNGA served as the birthplace of R2P as understood today, as it was within this forum that the World Summit Outcome Document was adopted in September 2005, which included paragraphs 138–​40 on the principle. Commemorating the 60th anniversary of the UN as well as following up on the commitments made at the 2000 Millennium Summit, the Summit convened Member States to consider and develop strategies for the changing and new global security challenges of the twenty-​first century. Like other topics under consideration during the Summit negotiations, the language articulating R2P was the outcome of intense debate. Four issues in particular were raised. First, some Member States, including Algeria, Belarus, Russia, Syria, and the membership of the Non-​Aligned Movement stated that R2P was incompatible with international law and the United Nations Charter and, as such, could not be included within the Outcome Document. Second, states such as Algeria and Russia argued that R2P should not be adopted because of what was viewed as a lack of membership consensus on the proposed principle. Third, some states viewed R2P as a ‘reincarnation’ of humanitarian intervention. Fourth, other governments worried that this emerging principle would serve as a tool of the powerful to violate the sovereignty of developing states.3 Pakistan declared that ‘measures to promote protection of civilians should not become a basis to contravene the principles of non-​interference and non-​intervention or question the national sovereignty and territorial integrity of states’,4 a view shared by others such as Cuba, Egypt, and Iran. Expressing concern about the potential misuse of R2P, Cuba stated that the principle ‘will only facilitate interference, pressure and intervention in the domestic affairs of our States by the superpowers and their allies’.5 While some Member States expressed strong concerns on the principle, others sought to propose additional language to further articulate state obligations. Perhaps the most

UN General Assembly    271 controversial was language inviting the permanent members of the UN Security Council (UNSC) to refrain from exercising veto power in situations of atrocity crimes. This was in part the result of points raised by Peru and supported by states such as Argentina, and showed a bold attempt to impact the working methods of the Council for the purpose of civilian protection.6 As Detlev Wolter notes, there was also an attempt to include ‘a reference to the concept as an emerging norm as well as the mandate to develop clear criteria for its application’.7 A call for the establishment of ‘concrete mechanisms and modalities for carrying out this responsibility’8 was made by the Republic of Korea, but such criteria were not agreed upon. In response to the aforementioned criticisms of R2P, proponents were firm in their positions on its necessity, resulting in the inclusion of paragraphs 138–​40 in the final document. Governments, including Chile, Ireland, New Zealand, Argentina, and Peru, expressed their belief that R2P was in line with the Charter and international law, with the European Union declaring that R2P had roots in the UN Declaration of Human Rights.9 Furthermore, some governments declared that the failures of the past illustrated the necessity of R2P, with Rwanda stating that R2P was not a concept to serve the most powerful but rather a set of principles to protect those most vulnerable. This was echoed by South Africa, which declared that ‘the situation R2P addresses are not theoretical, but a reality, particularly in Africa’.10

The General Assembly Dialogues on R2P The UNGA has since provided a forum for norm-​building as states have convened at the annual, informal interactive dialogue to consider the UN Secretary-​General’s strategy for R2P’s implementation and the conceptual development of the norm. Since the first meeting in 2009 the UNGA has met to consider the implementation of R2P; early warning and assessment; the role of regional and sub-​regional arrangements; timely and decisive response; state responsibility and prevention; and international assistance. This section will discuss the dialogue process and reflect on the critical themes that have emerged from previous meetings, with additional focus given to the 2009 dialogue due to the unique and influential nature of this meeting.

The Dialogue Process The UNGA began to re-​engage on R2P in 2009 with the first informal dialogue and only official debate on the norm to consider the report of the Secretary-​General entitled Implementing the Responsibility to Protect.11 This has since been followed by an annual informal dialogue that provides the opportunity for Member States to reflect

272   Megan Schmidt on the Secretary-​General’s report, share their governments’ broader concerns and/​or support for R2P, and identify steps taken to uphold atrocities prevention and response. Such discussions have been essential for building a broader basis for consensus on the norm, maintaining R2P’s relevance within the UN, and identifying challenges with implementation. With the exception of the 2009 meeting, the annual one-​day discussions are informal in nature, meaning that the meetings are not on the formal agenda of the Assembly and not on the record. This informality results in three primary consequences which adversely impact the convening of the dialogues and keep R2P’s status in the UNGA vulnerable: difficulty with scheduling the dialogue; uncertainty on the release date of the Secretary-​General’s report; and the inability to allocate sufficient time for the meeting. With regard to scheduling, the decision rests with the Office of the President of the General Assembly (PGA); however, for a range of political or logistical reasons the inclusion of the dialogue has often not been a priority, resulting in rescheduling or the convening of the meeting during less than ideal times in the UN calendar. This has then impacted the report’s release and time allocated for the dialogue itself, both of which have led to significant challenges for Member State engagement. Given that a primary function of the discussions is to reflect on the report, it becomes exponentially more difficult to achieve this goal when given a short period of time to consider the document. With regard to structure, the informal nature of the meeting limits it to one day, which has resulted in the allocation of as little as three minutes per Member State and in some instances representatives removing themselves from the speakers’ list. As such, some have expressed concern that this ‘mode of engagement is incapable of fostering detailed consideration of specific implementation matters or of contributing to the establishment of a concrete action plan for implementation’.12

The Dialogues The publication of the first report on R2P, which served to articulate a comprehensive strategy for the norm and illustrate the UNSG’s commitment, and the convening of the subsequent dialogue in 2009 served as two milestones for the emerging norm. It was not assumed that governments would express a desire to foster the conceptual development of R2P within the UNGA, with many R2P advocates having ‘modest expectations’ for the outcome.13 This was due in large part to fear of the dialogue and debate serving as platforms for renegotiation of R2P, with concerns only increasing as the PGA undertook a range of efforts to sway the discussion against R2P. This included appointing R2P sceptic Ambassador Sen of India as a ‘Special Adviser on R2P’, distributing a scathing concept note ahead of the meeting, and convening a panel primarily composed of R2P opponents to speak at the informal dialogue.14 Despite such efforts the dialogue and debate proved successful in soliciting support for the necessity of R2P as a tool to contribute towards protecting civilians from atrocity crimes, garnering approval of the UNSG’s framework, and securing the role of the

UN General Assembly    273 Assembly as the forum for convening on the issue. This is not to say that there were not concerns raised on the principle’s implementation, as Member States noted issues like the potential misuse of R2P for action beyond its intended scope and the selectivity of the UNSC and potential for inappropriate use of veto power in atrocity situations. Additionally, there was a minority of dissenting states including Cuba, Venezuela, Sudan, and Nicaragua among others, which used their interventions to question the very need for R2P, declared the principle a tool of Western imperialism, and advocated for its renegotiation.15 This group of states was overshadowed by those speaking in favour of R2P and raising constructive concerns on the norm’s implementation. The dissenting states would continue to raise such issues in subsequent dialogues, remaining the minority within the Assembly meetings. With regard to affirming the role of the UNGA, action was taken on this issue through the adoption of resolution A/​Res/​63/​308 by the UNGA on 7 October 2009. The resolution ‘acknowledged the report, noted that the assembly had engaged in a productive debate, and decided that the General Assembly would continue its consideration of the matter’.16 Moving forward on the resolution was not simple, however, given fears that holding a vote could result in roll-​back on the progress made at the debate. As Alex Bellamy notes, ‘it was some of RtoP’s self-​professed supporters who expressed the most serious reservations’.17 The issue sparked much debate in the ‘Group of Friends’ of R2P with some governments arguing, ‘that a resolution was unnecessary and dangerous because it presented an opportunity for opponents to revise the 2005 agreement’.18 Guatemala, which championed the resolution, moved forward by calling for a vote, which resulted in the resolution’s adoption. Through the adoption of resolution A/​Res/​ 63/​308, the General Assembly accepted its mandate to continue consideration of the norm and convene in the years to follow to reflect on the Secretary-​General’s developing strategy for the prevention of and response to atrocity crimes.

Common Themes from the Assembly Dialogues While each dialogue is unique, there are common themes that have emerged and influenced the advancement of R2P within the UNGA as well as informed how the norm is understood in the international system. This section identifies and elaborates on five such themes. First, consensus has been reached on the definition of R2P and now attention must be given to implementation. A concern of great magnitude during the early years of the dialogue process was that the forum would provide the opportunity for the renegotiation of R2P.19 With each annual discussion, however, it has become increasingly apparent that 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. With

274   Megan Schmidt the conceptual battles largely won, it is now critical to, as Deputy Secretary-​General Jan Eliasson noted in his intervention at the 2014 dialogue, ‘turn growing support for the Responsibility to Protect into more systematic implementation’.20 Further clarity and focus needs to be given to identifying cases of R2P in practice, articulating the challenges that arise when faced with prevention and response to atrocity crimes, and strategizing on measures to overcome such issues. Second, states agree that R2P is grounded in prevention. Through underscoring that prevention is the foundation of R2P, governments have worked to dispel misunderstandings of the role of force and facilitate constructive discussion on how to enhance state and international capacity for protection. This was particularly relevant during the 2012 dialogue on timely and decisive response. While exploring the range of tools available to act in the face of atrocities, interventions at the dialogue were also used to reaffirm the importance of prevention, particularly following the military actions in Libya and Côte d’Ivoire. The meeting also served to offer further insight into the relationship between prevention and response.21 Adama Dieng, Special Adviser on the Prevention of Genocide, noted that ‘any action that is designed and put in place with the aim of preventing mass atrocity crimes will also contribute towards responding to dynamics that could potentially lead to them’.22 He went further in his clarification on the relationship by stating that ‘third pillar action, while responsive in nature, can ultimately play a preventive role’.23 The 2010 and 2013 meetings were also of great importance with regard to elaborating on how to enhance efforts to prevent atrocities. The 2010 dialogue provided a first opportunity for Member States to unpack the issue of prevention through reflecting on the topic of early warning and assessment. The Secretary-​General’s report of that year marked the first step towards institutionalizing R2P as it focused on mechanisms and concrete recommendations on the topic at hand. While such an approach was welcomed, the discussion at the dialogue in part centred on the challenge of translating words into concrete and coordinated action for prevention due to issues such as obtaining and verifying information, and collaboration amongst actors to share and coordinate action once such information is received.24 Through its consideration of the UN Secretary-​ General’s report entitled State Responsibility and Prevention, the UNGA directly focused on the issue in 2013. The purpose of the discussion was, as the Secretary-​General declared, to show that R2P was not a tool to be used to ‘protect populations at the 11th hour’ but rather for states to prevent atrocities and swiftly implement protection measures as situations unfold.25 The meeting in part served to provide Member States the opportunity to reflect on risk factors for R2P’s crimes and violations as proposed in the report, with several governments noting that such information provides greater understanding of how the crimes manifest and thus will inform preventive measures. Additionally, governments reflected on policy options available for domestic implementation. Championed were examples of national and regional mechanisms for atrocities prevention, including the appointment of R2P Focal Points, participation in the Latin America Network for the Prevention of Genocide and Atrocity Crimes, the establishment of the United States Atrocities

UN General Assembly    275 Prevention Board, and the development of National Committees of the International Conference of the Great Lakes Region.26 Third, states generally agree that the Secretary-​General’s three pillars provide a constructive framework for understanding and implementing the principles enshrined in R2P. The UN Secretary-​General received positive responses from governments in 2009 when the framework was proposed as ‘many governments demonstrated overall support for the three pillars and emphasized that the pillars are of equal length, strength and viability, with no set sequence’.27 While some, such as Malaysia and Pakistan, have proposed a need to use a sequential process for acting to uphold R2P, this view remains largely a minority one.28 The UNGA dialogues have since served to provide a forum for increasing discussion on and understanding of what implementation of the various pillars entails and identifying the challenges that may arise when operationalizing such action. This has been evidenced by the convening of dialogues on timely and decisive response in 2012, state obligations for prevention in 2013, and measures to assist states in 2014. Fourth, concerns continue to be raised on the potential misuse of R2P, leading to debate on two particular areas of concern: the risk of the norm’s manipulation to suit national interests; and selective implementation of action to protect populations. While these issues have been raised since the start of the dialogue processes, the crises in Libya and Syria illustrated such fears in action. Member States used the Assembly dialogue as a forum to debate the responses in the aforementioned situations, and reflect on the impact on R2P. With regard to the risk of R2P’s manipulation, this fear was heightened with the implementation of UNSC resolution 1973, which included the authorization of the use of force to protect civilians from the Gadhafi government. This resulted in debate amongst Member States participating in the dialogue on whether the international community had exhausted peaceful means ahead of the Council resolution’s adoption, a point raised by the government of Argentina29 at the 2012 dialogue, and whether military action extended beyond the Council mandate. Allegations of R2P’s misuse emerged based on the argument that the NATO-​led intervention pursued regime change extending beyond the mandate for civilian protection that was articulated by the Council. Concerns were first raised at the 2011 Assembly meeting with governments and regional organizations such as Kenya, Georgia, and the African Union declaring that the implementation of military force in Libya illustrated R2P’s potential for misuse and abuse.30 Concerns resulted in states such as Argentina31 and South Africa indicating their stern condemnation of how the mandate was handled, with the latter making it clear at the 2012 discussions that ‘the primary objective of RtoP is not regime change’.32 For states that have remained more cautious about R2P’s implementation, such as India, the implementation of UNSC resolution 1973 served to heighten their concerns about the norm, with the representative stating at the 2012 dialogue that ‘it is the pursuit of the objective of regime change that generated a great deal of unease among a number of us who support action by the international community’.33 While supporters of and participants in the NATO-​led campaign defended the actions taken in Libya as necessary

276   Megan Schmidt to protect populations, with the UN Secretary-​General stating at the 2012 dialogue that the Commission of Inquiry found that NATO conducted a ‘highly precise campaign’,34 the concerns about regime change extending the Council mandate raised the need for accountability, which will be discussed further in the next common theme. The use of force in Libya followed by the inability of the UNSC to find a unified response to the deteriorating crisis in Syria led to discussion within the UNGA dialogues on the issue of the selective application of R2P. Again, while always a concern since the first dialogue held in 2009, the humanitarian crisis in Syria illustrated the degree to which national interests could impede response in the face of atrocities, and the selective and political nature of the UNSC. In their interventions at dialogues since the 2011 Libyan intervention and unfolding humanitarian crisis in Syria, Member States increased attention given to government-​led initiatives to restrain veto use and have condemned the exercise of this power in the face of atrocity crimes. This has included statements by Singapore in 2011 on the then active ‘Small Five’ initiative to address working methods of the UNSC, including the use of veto in situations of atrocities;35 interventions by Switzerland in 2012 to raise the support of the Accountability, Coherence and Transparency working group for veto restraint;36 and statements by France since its government declared in 2013 its intention to establish a ‘code of conduct’ for the permanent Member States to agree to with regard to atrocities situations. In addition to bringing attention to these initiatives, the broader membership continued to demand an end to the misuse of the veto and have noted the detrimental impact on R2P that vetoing resolutions on atrocities prevention can have. This included statements such as that given by Singapore warning in 2012 that R2P ‘cannot be tarnished by suspicions of domestic agendas, national self-​interest or, worse still, political grandstanding’,37 and Peru in 2014 declaring that ‘RtoP would lose its leverage’38 if action was not taken on the issue of the veto. Fifth, some states have consistently raised the critical need for action by the UNSC to ensure accountability for measures implemented in the name of R2P. This was particularly relevant during the 2012 dialogue as the meeting was held over a year after force was authorized in Côte d’Ivoire and Libya for the purposes of civilian protection, which ‘made the implementation of RtoP and its most controversial aspect . . . more than an abstraction’.39 Government statements at the dialogue showed the spectrum of positions on the efficacy of the use of military force and the necessity to ensure accountability when such measures are implemented. For example, nations such as the United Kingdom40 and France who were heavily involved in the implementation of resolution 1973 authorizing the use of force in Libya, stated that such action was ‘morally right’, with France41 declaring that the Security Council was kept informed on the progress of implementation. However, other nations, including India,42 Argentina,43 and South Africa,44 among others, raised strong concerns not only on implementation, but specifically on the necessity to put in place and implement measures to review Security Council mandates as crises unfold so as to ensure that countries acting on behalf of the UN remain within the scope of the mandate provided and are held accountable if their actions extend beyond it.

UN General Assembly    277 Central to this issue and raised in both the 2012 report of the Secretary-​General and by Member States during that year’s dialogue was the Brazilian concept of ‘responsibility while protecting’ (RwP).45 While elements of the concept of RwP appeared to contradict the R2P framework set out by the Secretary-​General, such as the proposition of sequencing the three pillars, the essence of the proposal resonated with Member States concerned with the implementation of force and other coercive measures and raised important points to be considered with regard to the working methods of the UNSC. Two such points, which Alex Bellamy raised during the 2012 dialogue itself in his capacity as a panellist, were the need for strengthening accountability measures and the necessity of undertaking ‘judicious analysis’ of actions that will be implemented under the third pillar.46 The Brazilian proposal, as well as the need for clear mandates and accountability for their implementation, remained relevant topics for Member States at the subsequent UNGA dialogues. Brazil’s leadership on the concept of RwP faded as the government ceased to push its development further.

The General Assembly’s Role in Operationalizing R2P The UNGA has proven an increasingly important actor within the UN system for operationalizing the principles articulated in R2P. The decisions on country cases within the UNGA have illustrated a willingness to act in situations where populations are at risk of atrocity crimes. Resolutions adopted within the Third Committee have then been endorsed by the General Assembly as a whole, thus showing the commitment of the majority of the membership on such issues. The UNGA has also increasingly shown its leadership through bold measures following deadlock within the Security Council, using its global voice to condemn inaction and demand unification within the Council to uphold its mandate to preserve international peace and security. Two relevant examples of such leadership by the UNGA are found in the cases of Syria and the DPRK.

Syria The Assembly has served as a leading UN body in its condemnation of the atrocities committed by all sides in the Syrian conflict. The resolutions passed within both the Third Committee and by the Plenary have provided a holistic approach to addressing the crisis through calling for civilian protection, conflict resolution, and accountability. While lending the Assembly’s voice to denounce the horrific violence and promote protection measures, the resolutions have had two additional effects. First, the documents have been used to call for action and mirror draft resolutions vetoed in the UNSC. This has been the case since the first resolution adopted by the

278   Megan Schmidt Third Committee on 17 November 2011,47 which was adopted a month after the Council’s first veto.48 Through the passage of this and subsequent resolutions, the UNGA made it clear that the broader membership would not remain silent as the Council proved unable to find a common position on the unfolding crisis. This then led to situations in which states serving within both the Council and Assembly worked to pass language through the UNGA that was previously impossible for the UNSC to successfully adopt. The resolution adopted on 12 February 201249 illustrates an example of the Assembly using language that ‘closely mirrored that of a text vetoed by China and the Russian Federation in the Security Council’.50 Through having the global membership adopt a text that directly used the words of a vetoed Council resolution, the Assembly not only showed its support for the people of Syria but also made a statement on the Council’s inability to respond to the threat of atrocities because of irresponsible use of veto power. Second, the Assembly’s resolutions provided a forum for non-​Council Member States to express their disappointment in the body’s ineffectiveness to respond to atrocity crimes. The interventions given during the 15 May 201351 meeting of the Assembly exhibit this quite clearly. For example, the representative of South Africa stated that the Council had ‘abdicated on its responsibilities’,52 with the Turkish official declaring that responsibility now fell to the Assembly to ‘express the common sense of the international community’.53 Other governments, such as Tanzania, used the opportunity to call on the Council to ‘put aside their differences and agree on a suitable course of action to end the conflict’.54 The text of the resolutions reiterated such statements, with paragraph 12 of A/​RES/​68/​182 of 30 January 2014 explicitly reminding the UNSC of its ‘primary responsibility for the maintenance of international peace and security’.55 Furthermore, the resolution called on the body to take action ‘to put an end to all serious violations of international humanitarian law and all serious violations and abuses of international human rights law’.56 Such measures provided the opportunity for middle powers and developing states to show to the broader international community that the UN membership would not fall victim to the politics of the Security Council.

Democratic People’s Republic of Korea While the situation in the DPRK has been on the agenda of the Third Committee in the past, it was in 2014 that this body took groundbreaking action through the adoption of resolution A/​C.3/​69/​L.28. The resolution was in response to the report of the Commission of Inquiry (CoI) established by the Human Rights Council,57 which was the first of its kind to investigate the gross human rights violations in the country. The CoI’s findings placed the DPRK within the scope of R2P through its determination of alleged crimes against humanity committed as part of state policy and its call for the international community to ‘accept its responsibility to protect the people of the DPRK because the Government . . . has manifestly failed to do so’.58 The Third Committee resolution recalled the responsibility of the DPRK to protect its populations from crimes against humanity and articulated in detail the range of

UN General Assembly    279 violations committed in the country ‘pursuant to policies established at the highest level of the state for decades’.59 The resolution was groundbreaking in its calls for the UNSC to consider the report of the CoI; meet on the human rights situation in the country, as the body had only previously focused on non-​proliferation; and ensure accountability, including referral to the International Criminal Court (ICC). The UNGA membership placed the spotlight on the Council to act, putting direct pressure on this body to recognize gross violations of human rights and the commission of atrocity crimes as threats to international peace and security, which is largely seen to fall outside the scope of the Council mandate. Lastly, through calls for accountability the UNGA demanded that the Council exercise its power to refer a non-​state party to the ICC, an action that is rarely taken.60 The adoption of the resolution, however, was not without controversy, with three primary issues emerging. First, some Member States argued against the resolution, declaring that the adoption of country-​specific resolutions extended beyond the UNGA’s mandate. Second, governments contested the resolution on the grounds that it infringed on the sovereignty and territorial integrity of the DPRK. Third, despite the findings of the alleged commission of atrocity crimes, some Member States viewed the situation solely as a human rights matter outside of the Council’s mandate. These governments, which included Cuba, China, Venezuela, Russia, Belarus, and others, argued for the removal of the operative paragraphs focusing on Council action, and for the situation to remain in the purview of the Human Rights Council and its Universal Periodic Review process. Regardless of this stark disagreement on the part of some Member States, the resolution passed with 111 supportive votes, 19 against, and 55 abstentions.61 This resolution was ultimately adopted by the plenary through the passage of resolution A/​Res/​69/​ 188, which received five additional yes votes.62 The UNGA’s resolution had a direct impact on the government of the DPRK and the actions of the UNSC. With regard to the former, while the DPRK had begun to engage with the international community following the release of the CoI’s report,63 it took further action to influence the vote once the Third Committee’s resolution was tabled. This included ‘diplomatic overtures . . . such as offering for the first time to engage with the human rights rapporteur on North Korea and participating in the UPR’.64 While such actions may seem minimal given the situation, the government’s response illustrates the influence that the Third Committee’s resolution had on the most isolated and reclusive nation in the world. With regard to the UNSC, the UNGA’s resolution impacted steps taken by the Council in its consideration of the DPRK. As the Security Council Report noted, the UNSC had taken informal action, such as the convening of an Arria formula meeting on 17 April; however, ‘members appeared reluctant to push for any formal action until the General Assembly’s Third Committee consideration of the CoI report’.65 Following action under the leadership of Australia, including the circulation of a letter to the Council president on behalf of ten members calling for the issue to be put on the formal agenda, the UNSC met on 22 December 2014.66 This followed action on the part of China who sought to prevent the meeting through calling for a procedural vote on the question of adding the

280   Megan Schmidt DPRK to the agenda; however, its bid was unsuccessful.67 The closed session focused on the human rights situation in the DPRK as articulated in the CoI report with no action taken on the issue of accountability due to the veto power of China. While Council members did not explicitly state that the body’s actions were in response to the UNGA, ‘the strong backing by the Assembly of the CoI report and its request for Council action seems nevertheless to have added further legitimacy to the initiative’.68 Perhaps the greatest victory with regard to the convening of the meeting was that it set the precedent that gross violations of human rights amounting to atrocity crimes are considered a threat to international peace and security and thus within the scope of the UNSC’s mandate.

The General Assembly’s Role as Financial Overseer Within his 2009 and 2010 R2P reports the UN Secretary-​General first articulated his strategy for ‘the institutionalization of collaboration’69 between his two Special Advisers on genocide prevention and R2P and also noted his intentions for requesting budgetary support for the office. While the UNSG sought to ensure finances for this office and was successful in securing three additional staff in 2010,70 one of whom would focus specifically on the norm, the overall result has since been the politicization of budgetary discussions on R2P within the Fifth Committee. This has been due to a minority of states including Cuba, Venezuela, Ecuador, and Sudan,71 among others who have used the budgetary sessions to serve as a forum to raise their government’s positions on the principle. This has occurred within the Advisory Committee on Administrative and Budgetary Questions (ACABQ), which is tasked with deliberating on and making recommendations for the UN’s budget, as well as within the Fifth Committee, which convenes to consider and vote on the budgetary document presented by the ACABQ. Within the Fifth Committee, the anti-​R2P contingent has proposed what has become an annual amendment targeting the relevant section of the budgetary document to remove all language on R2P based largely on three points of contention. First, there is the argument that no mandate exists for the R2P Special Adviser’s position and the inclusion of R2P within the work of the ‘Joint Office’. As the former Special Adviser on the Prevention of Genocide, Dr Francis Deng, noted in his questioning before the ACABQ in 2010, the mandate for his Office and for R2P stems from the UNGA itself through the unanimous endorsement of the 2005 World Summit Outcome Document and the adoption of resolution A/​Res/​63/​308, as well as from letters to the UNSC President by the UN Secretary-​General calling for the establishment of both Special Adviser positions.72 Second, states have declared that the definition and scope of R2P has not been agreed upon by the membership and as such the Fifth Committee cannot allocate funding to work on such an issue. Lastly, it is argued that the UNGA,

UN General Assembly    281 through its 2009 resolution, only agreed to continue consideration of the norm and in no way is obligated to provide further support for its development, including allocating funding. These annual criticisms of R2P raised within the Fifth Committee have resulted in a routine process in which one of the dissenting states raises the amendment calling for the removal of R2P’s language within the budgetary document, in a vote on the proposed amendment. Central to this yearly process are the states that raise their objections to the anti-​R2P rhetoric, which has included governments such as the Netherlands,73 Cyprus,74 and Poland.75 In addition to expressing their support of the ‘Joint Office’, these interventions have noted that the discussions raised are political in nature and thus are not appropriate for the forum. The amendment is always defeated by an overwhelming majority, with only a select few states voting in favour. As the Global Centre for R2P notes, however, the abstaining votes, which have numbered over 70 in past years and have included regional powers such as Brazil and permanent Security Council members like China and Russia, are not insignificant.76 The organization states that the decision to abstain could be because budgetary experts are not informed on the issues in focus and thus prefer to abstain than take a position. An additional explanation could be that participating states may not see the Fifth Committee as the appropriate forum for political issues, thus resulting in an abstention.77 The continued politicization of funding has had three primary consequences. First, it has served to ensure that the Special Adviser for R2P position remains at $1 per year. As a result, the person who assumes this role must have external financial and employment security, thus ensuring that this post is not fulfilled in a full-​time manner. Furthermore, the allocation of $1/​year can be perceived as illustrating unwillingness on the part of the UN to institutionalize the position. Second, because of limited funding the joint office is required to secure extra-​budgetary support from governments and foundations, thus requiring staff time dedicated to fundraising as well as positioning the office to compete with organizations seeking finance for work on R2P. Lastly, there is the overall challenge of capacity that the office will continue to encounter as a result of inadequate funding, which impacts its ability to contribute towards the annual UNGA dialogue process, advocacy initiatives, and work to mainstream R2P within the UN system.

Going Forward In addition to the need for continued engagement and advocacy by R2P advocates to push R2P forward within the UNGA, there is a particular course of action that could be raised to progress the norm within this body and the larger UN system: formalizing the dialogue within the Assembly. While the dialogue process has provided the forum for R2P’s conceptual development, as noted earlier in this chapter, the informal nature of the meetings adversely impacts what can be achieved. Various options have been proposed to further enhance the dialogue process such as diversifying discussions by

282   Megan Schmidt holding a series of smaller meetings throughout the year focusing on various topics related to the norm, as well as maintaining the informal process but advocating for additional time. However, it is through formalizing the dialogue that Member States can have the strongest impact on the norm’s future within the UNGA and the larger UN system. There are several positive outcomes that would emerge from formalizing the dialogue. Logistically this would secure the date and duration of time for the meeting, which would have four primary consequences. First, this would remove the politics that have surrounded the decisions by some past Assembly presidents when determining the date of the informal dialogue. Second, having the dialogue on the agenda would enable the UN Secretary-​General and his/her Special Adviser on R2P to release the report in a timely and consistent manner, thus providing increased time for Member States and advocates to reflect on the report and prepare for the meeting. Third, it would put the discussions ‘on the record’, establishing an archive of the dialogues and the interventions provided by Member States. Fourth, formalization would ensure that the R2P discussions would remain within the UNGA’s focus well beyond the tenure of the present UN Secretary-​General, who has made R2P’s advancement a core tenet of his terms. With regard to the conceptual and operational development of R2P, through formalizing the dialogue process the Assembly would show its firm commitment to the principle through institutionalizing the discussions within the UN system. As it would require the Assembly to adopt a resolution at the end of the annual meeting, this would require Member States to negotiate the text, thus having concrete debate on the principle in a way that has not occurred before. Nevertheless, proceeding with formalizing the dialogue, which can occur through a range of actions including the adoption by a vote of a resolution in the Assembly, could also have negative consequences that must be considered. The tabling of a resolution could have at least two potential outcomes that could risk undermining the progress made thus far in the UNGA. First, the negotiation process for the text could risk engaging in discussions on the definition and scope of the principle by the minority of Member States that have consistently raised this point in the annual dialogues. Second, while less extreme, the Assembly could ultimately adopt a weak document that serves simply as a reutterance of the 2009 ‘continuing consideration’ text. While a resolution, particularly one that is procedural in nature, would have a positive chance of being adopted, the voting record could prove damaging to the norm’s progression if ‘no’ or abstention votes are cast by influential states. As is all too tragically known, atrocity crimes continue to threaten international peace and security, resulting in countless deaths, national and regional insecurity, and long-​ term reconstruction challenges. While it is not clear as to what course of action will occur within the UNGA, it is necessary that this body consider how to build on the leadership it has taken with regard to atrocities prevention and thereby remain the forum for the development of R2P. It is now necessary to craft ‘an ambitious vision for the next ten years’78 of the responsibility to protect, which will require the work of the UNGA and its global membership as this body has ‘an enduring role to play in the maintenance of

UN General Assembly    283 international peace and security—​and as such, should prioritize the discussion of issues which pose an inherent risk to such maintenance’.79

Notes 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41.

Peterson 2006, p. 97. Sills 2004, p. 53. International Coalition for the Responsibility to Protect 2009b. International Coalition for the Responsibility to Protect 2009b. International Coalition for the Responsibility to Protect 2009b. International Coalition for the Responsibility to Protect 2009b. Wolter 2007, pp. 320–​1. International Coalition for the Responsibility to Protect 2009b. International Coalition for the Responsibility to Protect 2009b. International Coalition for the Responsibility to Protect 2009b. United Nations General Assembly 2009, A/​63/​677. Bellamy 2013, p. 25. International Coalition for the Responsibility to Protect 2009a. International Coalition for the Responsibility to Protect 2009a. International Coalition for the Responsibility to Protect 2009a. Bellamy 2010, p. 147. Bellamy 2011, p. 43. Bellamy 2010, p. 147. International Coalition for the Responsibility to Protect 2009a. Eliasson 2014. International Coalition for the Responsibility to Protect 2012a. Dieng 2012. Dieng 2012. International Coalition for the Responsibility to Protect 2010. United Nations New Centre 2013. International Coalition for the Responsibility to Protect 2013. International Coalition for the Responsibility to Protect 2009a. Global Centre for the Responsibility to Protect 2012. Mission of Argentina to the United Nations 2012. International Coalition for the Responsibility to Protect 2011a. Mission of Argentina to the United Nations 2012. Mission of South Africa to the United Nations 2012. Mission of India to the United Nations 2012. United Nations Secretary-​General 2012, SG/​SM/​14490-​GA/​11271. International Coalition for the Responsibility to Protect 2012a. International Coalition for the Responsibility to Protect 2013. Global Centre for the Responsibility to Protect 2014. Global Centre for the Responsibility to Protect 2014. Global Centre for the Responsibility to Protect 2012. Mission of the United Kingdom to the United Nations 2012. Mission of the United Kingdom to the United Nations 2012.

284   Megan Schmidt 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57.

Mission of India to the United Nations 2012. Mission of Argentina to the United Nations 2012. Mission of South Africa to the United Nations 2012. International Coalition for the Responsibility to Protect 2012b. Bellamy 2012. United Nations General Assembly 2011, GA/​SHC/​4033. United Nations News Centre 2011b. United Nations General Assembly 2012b, A/​RES/​66/​253. United Nations General Assembly 2012a, GA/​11207/​Rev. 1. United Nations General Assembly 2013, GA/​11372. United Nations General Assembly 2013, GA/​11372. United Nations General Assembly 2013, GA/​11372. United Nations General Assembly 2013, GA/​11372. United Nations General Assembly 2014c, A/​RES/​68/​182, 5. United Nations General Assembly 2014c, A/​RES/​68/​182, 5. The CoI was established by the HRC through the adoption of resolution A/​HRC/​RES/​22/​ 12 of 9 April 2013. 58. United Nations Human Rights Council 2014, p. 16. 59. United Nations General Assembly 2014b, Third Committee, A/​C.3/​69/​L.28, 6. 60. Thus far the UNSC has only referred situations in non-​state parties in the cases of Darfur through resolution 1593 (2005) and Libya through resolution 1970 (2011). 61. United Nations General Assembly 2014a, GA/​SHC/​4122. 62. United Nations News Centre 2014b. 63. For more information see David Hawk, 38 North, ‘North Korea responds to the UN Commission of Inquiry’, , 16 October 2014. 64. Human Rights Watch 2014. 65. Security Council Report 2014. 66. Security Council Report 2014. 67. New York Times 2014. 68. New York Times 2014. 69. United Nations General Assembly 2010a, A/​64/​864, 7. 70. International Coalition for the Responsibility to Protect 2011b. 71. For further information on the annual statements by these governments, access meeting coverage by viewing the Meetings Coverage and Press Releases documents at . 72. Global Centre for the Responsibility to Protect 2011, 5. 73. United Nations General Assembly 2010b, GA/​AB/​3980. 74. United Nations General Assembly 2012a, GA/​AB/​4057. 75. United Nations New Centre 2011a. 76. Global Centre for the Responsibility to Protect 2011, 9. 77. Global Centre for the Responsibility to Protect 2011, 9. 78. United Nations News Centre 2014a. 79. International Coalition for the Responsibility to Protect 2014.

References Bellamy, Alex (2010). ‘The Responsibility to Protect: Five Years On’. Ethics and International Affairs 24(2): 143–​69.

UN General Assembly    285 Bellamy, Alex (2011). Global Politics and the Responsibility to Protect: From Words to Deeds (Abingdon: Routledge). Bellamy, Alex (2012). ‘Remarks to the General Assembly Informal Interactive Dialogue on the Responsibility to Protect’. . Bellamy, Alex (2013). The Responsibility to Protect: Towards a ‘Living Reality’ (London: United Nations Association—​United Kingdom). Dieng, Adama (2012). ‘Statement by the Special Adviser on the Prevention of Genocide, Informal, Interactive Dialogue on the Responsibility to Protect’. . Eliasson, Jan (2014). ‘Remarks to General Assembly Informal Interactive Dialogue on “Fulfilling our Collective Responsibility: International Assistance and the Responsibility to Protect”’. . Global Centre for the Responsibility to Protect (2011). ‘ACABQ and Fifth Committee Negotiations on the Joint Office’. . Global Centre for the Responsibility to Protect (2012). ‘Timely and Decisive Response’. Summary of the Informal Interactive Dialogue of the UN General Assembly on the Responsibility to Protect Held on 5 September 2012. . Global Centre for the Responsibility to Protect (2014). ‘Summary of the Sixth Informal Interactive Dialogue of the UN General Assembly on the Responsibility to Protect’, held on 8 September 2014. . Human Rights Watch (2014). ‘North Korea: UN Condemns Crimes against Humanity’. . International Coalition for the Responsibility to Protect (2009a). ‘Report of the General Assembly Plenary Debate on the Responsibility to Protect’. . International Coalition for the Responsibility to Protect (2009b). ‘State-​by-​State Positions on the Responsibility to Protect’. . International Coalition for the Responsibility to Protect (2010). ‘General Assembly Interactive Dialogue on Early Warning, Assessment and the Responsibility to Protect’. . International Coalition for the Responsibility to Protect (2011a). ‘Interactive Dialogue of the UN General Assembly on the Role of Regional and Sub-​Regional Arrangements in Implementing the Responsibility to Protect’. . International Coalition for the Responsibility to Protect (2011b). ‘UNGA votes to fund three additional staff in the Office of the Special Adviser on the Prevention of Genocide’. . International Coalition for the Responsibility to Protect (2012a). ‘UN General Assembly Dialogue on the Responsibility to Protect:  Timely and Decisive Response’. . International Coalition for the Responsibility to Protect (2012b). ‘UN Informal Discussion on “Responsibility while Protecting”’. . International Coalition for the Responsibility to Protect (2013). ‘United Nations General Assembly Holds Fifth Informal Interactive Dialogue on the Responsibility to Protect Focusing on the Theme of State Responsibility and Prevention’. . International Coalition for the Responsibility to Protect (2014). General Assembly Informal Interactive Dialogue on the Responsibility to Protect: Statement by Donald Deya. . Mission of Argentina to the United Nations (2012). Informal Interactive Dialogue on R2P.

286   Megan Schmidt Mission of India to the United Nations Mission (2012). Statement by H.E. Ambassador S. Puri: An Informal Interactive Dialogue on the Report of the Secretary-​General on the Responsibility to Protect: Timely and Decisive Action. Mission of South Africa to the United Nations (2012). Statement Delivered on Behalf of the Permanent Mission of South Africa to the United Nations. Mission of the United Kingdom to the United Nations (2012). ‘The UK is Fully Committed to Implementing the Responsibility to Protect’. Statement by Ambassador Michael Tatham at UN General Assembly Interactive Dialogue on the Report of the Secretary-​General on the Responsibility to Protect: Timely and Decisive Response. 5 September. . New York Times (2014). ‘United Nations Security Council Examines North Korea’s Human Rights’, 22 December. . Peterson, M. J. (2006). Global Institutions: The United Nations General Assembly (New York: Routledge). Security Council Report (2014). Meeting on the Human Rights Situation in North Korea. . Sills, Joe (2004). ‘The United Nations and the Formation of Global Norms’, in Jean E. Krasno (ed.), The United Nations: Confronting the Challenge of Global Society (Boulder, CO: Lynne Rienner), pp. 47–​76. United Nations General Assembly (2009). Implementing the Responsibility to Protect: Report of the Secretary-​General, A/​63/​677, 12 January. United Nations General Assembly (2010a). Report of the Secretary-​General on Early Warning, Assessment and the Responsibility to Protect, UN doc. A/​64/​864, 14 July. United Nations General Assembly (2010b). ‘Harmonizing Staff Working Conditions Strengthening UN Information Technology Among Issues as Budget Committee Approves 18 Texts, Concludes Session’, UN doc. GA/​AB/​3980, 23 December. United Nations General Assembly (2011). ‘Third Committee Approves Resolution Condemning Human Rights Violations in Syria, by Vote of 122 in favour to 13 Against, with 41 Abstentions’, UN doc. GA/​SHC/​4033, 22 November. United Nations General Assembly (2012a). ‘Fifth Committee, Concluding Session, Approves 2013–​2015 Assessment, Scales Used to Determine Member State Contributions to Regular, Peacekeeping Budgets’, UN doc. GA/​AB/​4057, 24 December. United Nations General Assembly (2012b). ‘General Assembly Adopts Resolution Strongly Condemning “Widespread and Systematic” Human Rights Violations by Syrian Authorities’, UN doc. GA/​11207/​Rev. 1, 16 February. United Nations General Assembly (2012c). ‘The Situation in the Syrian Arab Republic’, UN doc. A/​RES/​66/​253, 16 February. United Nations General Assembly (2013). ‘General Assembly Adopts Text Condemning Violence in Syria, Demanding That All Sides End Hostilities’, UN doc. GA/​11372, 15 May. United Nations General Assembly (2014a). ‘Intensely Debated Targeted Country Reviews, Third Committee Approves Draft Texts on Iran, Syria, Democratic People’s Republic of Korea’, UN doc. GA/​SHC/​4122, 18 November. United Nations General Assembly (2014b). ‘Situation of Human Rights in the Democratic People’s Republic of Korea’, UN doc. A/​C.3/​69/​L.28, 14 November. United Nations General Assembly (2014c). ‘The Situation of Human Rights in the Syrian Arab Republic’, UN doc. A/​RES/​68/​182, 30 January.

UN General Assembly    287 United Nations Human Rights Council (2014). Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, UN doc. A/​HRC/​25/​63, 7 February. United Nations News Centre (2011a). ‘Fifth Committee, Concluding Missions, Recommends $5.15 Billion Budget for 2012–​2013’, GA/​AB/​4021, 24 December. United Nations News Centre (2011b). ‘Russia and China Veto Draft Security Council Resolution on Syria’, 4 October. United Nations News Centre (2013). ‘Prevention at Core of Responsibility to Protect, Secretary-​ General Stresses during General Assembly’s Informal, Interactive Dialogue on the Subject’, Secretary-​General, SG/​SM/​15269-​GA/​11411, 11 September. United Nations News Centre (2014a). ‘Amid Multiple Crises, “Responsibility to Protect” More Urgent than Ever—​UN Officials’. . United Nations News Centre (2014b). ‘General Assembly Decides to Refer UN Report on Human Rights in DPR Korea to Security Council’. . United Nations Secretary-​General (2012). ‘Responsibility to Protect Faces Urgent Test “Here and Now”, Secretary-​General Tells General Assembly, Stressing Immense Human Cost of Failure in Syria’, UN doc. SG/​SM/​14490-​GA/​11271, 5 September. United Nations Secretary-​General (2013). ‘Prevention at Core of Responsibility to Protect, Secretary-​General Stresses during General Assembly’s Informal Interactive Dialogue on Subject’, UN doc. SG/​SM/​15629-​GA/​11411, 11 September. Wolter, Detlev (2007). A United Nations for the 21st Century:  From Reaction to Prevention (Baden-​Baden: Nomos).

Chapter 16

Get ting T h e re , Being T h e re The Dual Roles of the Special Adviser Edward C. Luck

On 21 February 2008, United Nations Secretary-​General Ban Ki-​moon appointed this author to be the UN’s first Special Adviser on the Responsibility to Protect (R2P).1 Everything about this position—​from its mandate to its practice—​is highly political. So, before turning to a more in-​depth analysis of the place of the Special Adviser in the larger atrocity prevention architecture, two political caveats that conditioned the work of the Special Adviser would be in order. One, the appointment, less than three years after the 2005 World Summit had first endorsed R2P, came at a time when many Member States were having second thoughts about this far-​reaching principle and about how it should be applied in practice. One of the Secretary-​General’s top aides detected a growing sense of ‘buyer’s remorse’ in key capitals. Echoing a common refrain from his campaign, in his acceptance speech the newly appointed Secretary-​General had underscored that ‘the true measure of success for the UN is not how much we promise, but how much we deliver for those who need us most’. To that end, he pledged to ‘work diligently to materialize our responsibility to protect the most vulnerable members of humanity’.2 Nevertheless, there was acute concern among his advisers that R2P could easily become the next poster child for the UN’s alleged incapacity to deliver on its noble aspirations. As if to confirm the sceptics’ doubts, the world body gave this Special Adviser an ambitious mandate—​to develop R2P conceptually, politically, and operationally/​institutionally—​but no funding, staff support, or compensation to accomplish it. The knowledge that this had been a recurring pattern when other new mandates were being developed at the UN was not entirely reassuring. Two, despite these initial misgivings, the R2P project at the United Nations and in capitals was buoyed by the pre-​existing and much larger human security and human protection movement of which it was both a part and a product. The normative and

The Dual Roles of the Special Adviser    289 operational work of the Special Advisers has benefited enormously from the political momentum created by this larger movement in civil society, in governments, and at the UN. Dedicated non-​governmental organizations (NGOs), such as the Global Centre for the Responsibility to Protect, the International Coalition for the Responsibility to Protect, and the Asian-​Pacific Centre for the Responsibility to Protect, have rallied public and political support, including through an ongoing dialogue with key delegations at the UN and in capitals. They have, along with the Stanley Foundation, various regional think tanks, and, in the early years, the International Peace Institute (where this author was employed from 2007–​11), convened a range of roundtable events to explore both conceptual and operational challenges. The depth of the public interest in finding better ways to protect populations has kept democratic governments and policy-​makers from forsaking this undertaking even when neither they nor UN practitioners have had ready answers for how to offer effective protection measures in places like Syria, Sudan/​South Sudan, and the Democratic Republic of the Congo (DRC).3 This chapter will sketch the institutional and political context that shaped the decision to appoint a Special Adviser, comment on how the mandates and practices associated with it have developed over these initial years, and assess how the normative, operational, and institutional challenges ahead are shaping up. The position of Special Adviser is still evolving and far from firmly entrenched in the UN bureaucracy. Since its future prospects, and those of the related post of Special Adviser on the Prevention of Genocide, remain to be determined, the chapter will address the mandates for both positions in some detail.

Appointing a Special Adviser At the outset, it should be underscored that there is nothing singular about the appointment of a Special Adviser. It has become a common way for Secretaries-​General and Member States to deal with—​or to appear to be dealing with—​daunting new challenges, whether of a thematic or situational nature. Over the years, therefore, there has been a substantial expansion in the number of Special Representatives, Envoys, and Advisers of the United Nations Secretary-​General (SRSGs).4 Most of this growth reflects the increasing demand for UN peace operations in the field.5 A handful of the more visible headquarters-​based appointments, however, represent an enhancement of the executive capacity of the Secretary-​General and a marked tendency by civil society and the Member States to ask him/​her to take the lead in developing new thematic mandates as they arise. The increased attention to prevention and to human security, alongside more traditional tasks related to conflict resolution and state security, has led to the creation of several new SRSG positions since 1998.6 It should be acknowledged as well that in the beginning, at the inception of R2P, no one was giving any thought to the establishment of the post of Special Adviser. The groundbreaking report of the International Commission on Intervention and State Sovereignty

290   Edward C. Luck (ICISS), co-​chaired by Gareth Evans and Mohamed Sahnoun, which in 2001 coined the phrase ‘responsibility to protect’, was, quite properly, cast at a much higher level. The Commission had set its sights on grander, more conceptual breakthroughs concerning the limits of sovereignty and the nature of international obligations when a state is committing mass crimes against its people.7 Its members understood that the key to curbing mass atrocity crimes lay within states and societies, not in enhancing international secretariats. Moreover, the emphasis in the report on the Security Council and on rules for the use of force meant that its detailed discussion of prevention and other dimensions of R2P gained little public or scholarly attention. Ironically, though the ICISS report offers no specific proposals for strengthening UN Secretariat capacity, the frequency and deference with which it quotes Secretary-​ General Kofi Annan on conflict and atrocity prevention is striking.8 So implicitly, at least, the report does pay homage to the cardinal role a Secretary-​General and her/​ his bully pulpit can play as a norm entrepreneur and catalyst for international action.9 Indeed, it was because of Annan’s initiative that the Commission was established in the first place.10 So indirectly and tacitly, the very existence of the ICISS report is an acknowledgement that a Secretary-​General should have some quality support on the strategic, conceptual, political, and messaging—​or norm-​building—​side of R2P. This, in essence, is the ‘getting there’ (or normative) function discussed in what follows. The ‘being there’ (or operational) role is largely neglected in the ICISS report, however, other than a passing reference to the Secretary-​General’s authority under Article 99 to ‘bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security’.11 Three years later, in late 2004, the High-​Level Panel on Threats, Challenges and Change convened by Secretary-​General Annan strongly endorsed the responsibility to protect, but it too failed to consider the possible roles of the Secretariat in helping to implement those principles.12 In part, this may have been because the panel chose to address R2P under the section of its report on rules and guidelines for the use of force, rather than under those sections on prevention, protecting civilians, or strengthening the Secretariat. This omission is telling, as well, in that, some five months before the release of the High-​Level Panel’s report, the Secretary-​General had appointed the UN’s first Special Adviser on the Prevention of Genocide, Juan Méndez of Argentina, on a part-​time basis at the level of Assistant Secretary-​General.13 Oddly, the existence of this new high-​level post is not even mentioned in the panel’s report. When Ban Ki-​moon became Secretary-​General in January 2007, he was determined not to have another Rwanda or Srebrenica on his watch. He sought both to operationalize the responsibility to protect and to bolster the UN’s ongoing efforts to prevent genocide. How to create positive synergies between these two efforts, however, was not obvious, whether viewed through conceptual, operational, or institutional lens. In May, he appointed Francis Deng of the Sudan to succeed Juan Méndez, but on a full-​time basis and with a change of title to Special Representative and adding Mass Atrocities to Genocide Prevention.14 In August, the Secretary-​General announced that in 2008 he would ask the General Assembly to approve raising the post to the Under-​Secretary-​ General level. The proposed changes in title were meant to reflect the largely operational

The Dual Roles of the Special Adviser    291 character of the post and the need to expand its scope beyond the single crime of genocide. In August 2007, the Secretary-​General wrote to the President of the Security Council both about the revised genocide prevention post and about his intention to appoint this author to the new position of Special Adviser on the Responsibility to Protect, which was to be paid ‘when actually employed’ and at the Assistant Secretary-​General level. ‘Recognizing the fledgling nature of the agreement on the responsibility to protect,’ he commented, ‘the Special Adviser’s primary roles will be conceptual development and consensus-​building.’15 He would work ‘under the over-​all guidance of Mr. Deng to ensure consistency in the United Nations approach’ and the two would share an office and support staff.16 The Special Representative and Special Adviser were to ‘closely consult and coordinate with’ the Department of Political Affairs and the High Commissioner for Human Rights, ‘including in the context of their field presences’. When it took the Security Council more than three months to respond with its approval, it was widely speculated that some of its members might have had doubts about the new R2P position. Actually, however, the Council approved of this step—​taking ‘note’ of it in its usual fashion—​but sought further details about the proposed changes in the genocide prevention post.17 In the end, the reference to mass atrocities was dropped from the genocide prevention title and its function remained that of Special Adviser rather than Special Representative. So the Secretary-​General’s attempt to rationalize the two posts by specifying a functional division of labour (one Representative and one Adviser) and by broadening the substantive scope of the higher-​level post was frustrated by political pressures from those Council members that apparently preferred to limit it to genocide only. Outside of the Council, a handful of Member States expressed concern that approval for the new R2P position had been sought from the Security Council rather than the General Assembly. They contended that some sort of Assembly review was needed if the post was to be funded, even though the path of going to the Council first had been followed—​without objection—​for genocide prevention just three years earlier. So the formal announcement of the R2P appointment was delayed for two months of consultations, which resulted in enlarging the mandate to developing R2P conceptually, politically, and operationally/​institutionally, as noted previously, but with the funding of the post and of any support staff left for further negotiation. Seven years later, there is still no regular budget funding for the post, though the Assembly has agreed to provide support for some of its functions and some Member States have provided voluntary funding for its work.

‘Getting There, Being There’: The Dual Normative and Operational Mandate As the first Special Adviser, this author was asked to take the lead in framing both the normative and operational dimensions of R2P. On the whole, the normative development of R2P has proceeded quite well in terms both of the continuing refinement of

292   Edward C. Luck the concept and of its growing acceptance among the Member States and civil society. A great deal has been accomplished in a relatively brief period of time compared to the history of other human rights and humanitarian norms. As expected, however, operationalizing R2P principles has been a more uneven exercise, with some significant quiet successes intermingled with some horrific and highly visible failures. Despite the mixed results to date, political support for R2P does not appear to be lagging. On the normative side, the task has been one of ‘getting there’. R2P’s emphasis on responsibility meant that progress would have to be made simultaneously on gaining international acceptance of R2P as a norm and on encouraging Member States to make R2P principles part of national policy and practice.18 For the Special Advisers, this has entailed efforts to encourage Member States, the UN Secretariat, the media, parliaments, and ‘we the peoples’ to accept that the principles embodied in paragraphs 138–​40 of the Outcome Document of the 2005 World Summit not only are legitimate and reflect a very broad-​based international consensus, but that their full and vigorous implementation should be a matter of high priority for governments, intergovernmental organizations, and national and international civil society. Neither the UN system nor the world outside is there yet, despite quite remarkable progress over the past decade. We are still ‘getting there’, with no certain arrival date in sight. On the operational side, the task has been one of ‘being there’. For the Special Adviser, this could be taken quite literally: that the Special Adviser and her/​his voice should be at the table when decisions are made at the world body affecting the possible commission of mass atrocities and that he/​she should be vigilant and active in asserting R2P principles in situations where the risk of such atrocities appears high. If the Special Adviser is ‘not there’ at the table when critical decisions are being made, the chances that the danger of mass atrocities will not be given sufficient attention may well rise. The UN’s internal inquiry on its handling of the terminal phase of the civil war in Sri Lanka in early 2009 is suggestive in this regard.19 Clearly further talk of the danger of atrocities on the part of government forces was not welcome in the UN Secretariat’s higher echelons at that point, as it might have interfered with the primary goal of maintaining humanitarian access and space, both of which depended on cooperation from the government.20 Partly as a result of the lessons learned from the UN’s failures there, the Secretariat has since adopted a ‘rights up front’ approach to conflict management.21 Whether this new approach will make a difference when push comes to shove remains to be seen. Operational capacity remains weak and uneven, and too little is known about how to address the hardest cases. Given that each situation has unique characteristics, the operational application of R2P principles will perpetually be a learning process, leaving little room for complacency or rigid templates. There are no guide books or instruction manuals for those undertaking a new Special Adviser post. It is a matter, in large part, of learning by doing, while trusting one’s political instincts. For instance, it was not clear how much relative time and effort should be devoted to the normative and operational dimensions of the mandate, whether these portions should be adjusted over time, and how the various tasks should be sequenced. At the outset, it was widely assumed that initially there would be greater emphasis on the

The Dual Roles of the Special Adviser    293 normative than operational aspects of R2P, given that the concept was new, contentious, and not fully defined. The author was, indeed, able to devote considerable time in late 2007 and early 2008 to developing, in consultation with Member States, civil society, and others in the UN system, what became the Secretary-​General’s three-​pillar implementation strategy. Had circumstances permitted, it would have been advantageous, as well, to garner political support as broadly and deeply as possible before applying the principle to any specific operational situations. Likewise, over time successive Special Advisers could be expected to apply increasingly large portions of their time and effort to the operational side, as more troublesome normative hurdles were overcome and the operational demands increased as the concept became more widely accepted.22 Over the long run, the development of R2P may well follow this model. In the short run, however, events in Kenya and Myanmar/​Burma compelled the Special Adviser to devote more attention to its operational application at an earlier stage of its development than the model would have predicted. Both situations occurred before the Secretary-​ General gave his first speech laying out his R2P strategy in Berlin in July 2008 and while the Special Adviser was consulting intensively with the Member States to give them some sense of understanding, even ownership, of the strategy.23 The responses to the crises in Kenya and Myanmar/​Burma provided some early reassurance about how the UN Secretariat, at least, would apply R2P principles in specific situations. In some parts of Kenya, it appeared that ethnic cleansing was underway soon after the late December 2007 elections and the chances of escalation were deemed to be unacceptably high. Though the Secretary-​General’s R2P strategy was still in formation, the dangerous situation in Kenya offered an opportunity for him to put the preventive aspects of R2P into action in partnership with Kofi Annan’s determined mediation efforts on behalf of the African Union.24 Fortunately, the Secretary-​General agreed on this approach and implemented it expeditiously and effectively in his public and private messaging, including to the government and opposition leaders of Kenya.25 While some have since called this an easy case, at the time there was little support and considerable opposition among top UN officials to labelling this an R2P situation. Many of them claimed that the new concept lacked definition, remained politically controversial, and would only add fuel to the fire in terms of the political dynamics within Kenya and among its neighbours. To the Special Adviser, however, the risks of growing violence along sectarian lines were all too real and the first task had to be the prevention of any possibility of a repeat of the Rwandan experience in which there were endless rationalizations for not taking timely or effective international action. Just four months later, Cyclone Nargis presented a different challenge, as the reluctance by the government of Myanmar to permit substantial international humanitarian assistance to the victims did not fit easily under the four R2P crimes as a true mass atrocity as defined by the 2005 World Summit. As Special Adviser, this author had repeatedly told the Member States that his approach would be narrow but deep, in other words that it would only address the four specified crimes and their incitement but would be deep in its utilization of all feasible means of prevention and protection. His credibility, especially with many developing countries, would have been undermined if he had not

294   Edward C. Luck disagreed publicly with the French foreign minister’s characterization of the situation in Myanmar as one requiring a forceful R2P response.26 The Special Adviser decided it would be best not to inform the Secretary-​General of his press comments in this regard until after they had been made, so that the Secretary-​General could disown them if that became necessary. There was, as expected, a strongly negative response from Paris, as foreign ministers of the five permanent members of the Security Council do not appreciate being contradicted in public by UN officials. But for many diplomats, especially from the developing world, the incident was reassuring as an indication of the sincerity of the commitment to the narrow but deep approach to R2P implementation. As these early situations demonstrated, the normative and operational aspects of R2P are interactive and interdependent. Neither can flourish without the other. On one hand, without more normative progress, there will be insufficient political will to take the hard steps necessary to prevent, curb, or curtail mass atrocities in the most difficult situations and where geopolitical considerations are most at play. R2P, to this author at least, has been, at its core, a political enterprise. Ultimately, R2P has to make a difference in the way policy and personal decisions are made, where and when they matter most to preventing and curbing mass atrocity crimes. Such crimes have to be understood by critical actors to be simply unacceptable, like the use of weapons of mass destruction.27 On the other hand, without evidence that the tenets of R2P are making a difference in affecting the behaviour of governments, armed groups, and those who would employ mass terrorism to advance political and/​or sectarian agendas, R2P principles will lose credibility and will begin to sound like so many high-​sounding but ultimately empty words. As noted previously, such hollow phrases are all too familiar to long-​ time observers of the UN, since Member States, with a push from advocacy groups, are prone to assign grand mandates to the world body without the means or political commitment to carry them out. R2P has never been far from the edge of that precipice. So Special Advisers will need, for the foreseeable future, to ‘be there’ and ‘be getting there’ at the same time, vigorously working both sides of the R2P equation simultaneously and in tandem.

The Relationship Between R2P and Genocide Prevention For the foreseeable future, Special Advisers will face some conceptual challenges with operational implications as well. At the UN, R2P and genocide prevention were initially treated as two distinct matters, proceeding along parallel, rather than interacting, and eventually intersecting, tracks. To this day, scholars and practitioners continue to hold serious misconceptions about the sources for the R2P and genocide prevention mandates, how they relate to each other, and how they relate to the broader goal of conflict prevention. As discussed in the concluding section of this chapter, when the next

The Dual Roles of the Special Adviser    295 Secretary-​General considers what to do about the two Special Adviser positions and the Joint Office they share, clarity about such matters will be at a premium. It is widely assumed, for instance, that the genocide prevention mandate is much more firmly grounded at the UN than that for R2P. A closer look at the origins of the two mandates suggests that it was largely a matter of timing and perception. The announcement by Secretary-​General Annan of his intention to appoint a Special Adviser on the Prevention of Genocide came in his Action Plan to Prevent Genocide presented at a ten-​ year commemoration of the genocide in Rwanda before the UN Commission on Human Rights in Geneva in April 2004.28 The commemoration preceded the World Summit and its adoption of R2P by a year and a few months. If the timing of the two events had been reversed, perhaps the first Special Adviser post would have been devoted to the broader principle of R2P rather than solely to genocide prevention. According to Secretary-​General Annan, the mandate for the Special Adviser for the Prevention of Genocide derives from the eighteenth preambular paragraph and operative paragraphs 5 and 10 of Security Council resolution 1366 (2001).29 The full text, purpose, and context of the resolution, however, suggest that it actually could have provided a stronger mandate for R2P than for genocide prevention alone. For instance: • In preambular paragraph 18, the Council acknowledges not only the lessons learned from the failure to prevent ‘the genocide in Rwanda’, but also ‘the massacre in Srebrenica’, a phrase deleted from the Secretary-​General’s account of the resolution. • The full text also echoes R2P’s emphasis on state responsibility, not just the Council’s resolve ‘to take appropriate action’. • The Secretary-​General makes no reference to preambular paragraph 17, which both underscores the importance of state responsibility and mentions three of the four crimes that the Member States agreed at the World Summit the next year should be covered by R2P. • None of the operative paragraphs of resolution 1366 (2001), in fact, make reference either to genocide or to other mass atrocity crimes, as its focus is on conflict prevention, not atrocity prevention. It followed the Council’s consideration of the Secretary-​General’s report on the Prevention of Armed Conflict, which called for a shift from ‘a culture of reaction to a culture of prevention’ and made only a single passing reference to mass atrocity crimes, i.e. to the ‘preventable genocide’ in Rwanda as an illustration that prevention is cheaper than response.30 Two of the points in the Secretary-​General’s Action Plan, it should be noted, did not appear in the mandate he sent to the Security Council three months later. First, it asserted that ‘the adviser’s mandate will refer not only to genocide but also to mass murder and other large-​scale human rights violations, such as ethnic cleansing’. Second, it declared that the Special Adviser’s functions would include working ‘closely with the High Commissioner’ for Human Rights to collect information and to act as an early warning mechanism to the Security Council ‘and other parts of the UN system’. In the

296   Edward C. Luck end, the mandate failed to refer to any crimes beyond genocide or to any intergovernmental organs besides the Security Council. The Action Plan also made the questionable claim that ‘anyone who embarks on genocide commits a crime against humanity’. Genocidal acts that are widespread and systematic are likely to constitute crimes against humanity, but others might not. Ethnic cleansing, war crimes, and crimes against humanity may be precursors to genocide, but more often they are not. There is no obvious correlation between the number of people affected and the type of atrocity crime committed. During five years as Special Advisers, this author and Francis Deng heard many wrenching accounts of crimes against humanity, including of mass sexual and gender-​based violence, but unambiguous acts of genocide were rare and hard to document. Article II of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide sets a high and, in some respects, narrow standard: ‘genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’. ‘Intent to destroy’ may be hard to establish, especially at the time such crimes are being committed. Mass violence may be committed against majority populations for political or economic reasons, not just against one of the groups specified for protection under the convention. Indeed, some of the greatest violence of the twentieth century has been labelled ‘politicide’—​a term without legal standing—​by some commentators. Specialists still debate whether genocide was committed in Darfur or even in the killing fields of Cambodia more than a generation earlier.31 It is striking that it took more than a half century after the Genocide Convention came into effect for a Special Adviser to be appointed or for the enunciation of even an outline of a plan for its implementation. Somewhat ironically, it may have taken the emergence of R2P to spur serious thinking in policy circles about how to implement the long-​standing Genocide Convention. For these and other reasons, R2P provides far more flexibility and adaptability than genocide prevention as a framework for policy-​making. It offers a much broader standard that is more difficult to challenge in specific situations. One, it is an umbrella principle that covers four sets of atrocity crimes, not just one. Two, it insists that states are responsible for protecting all populations within their territory, not just specified protected groups. Arguably, it is this promise of blanket coverage for all people, regardless of their group identity or identities, that sets R2P off from the longer-​standing and convention-​based protections of the genocide prevention regime. Three, it says nothing about the intentions of national authorities or about the capacities of the state, as the responsibility to protect populations by preventing the four crimes or their incitement is not qualified in any way in the 2005 Outcome Document. The adoption of these provisions, as well as the designation of the four R2P crimes, by the Heads of State and Government at the 2005 World Summit was a major advance conceptually, operationally, and politically.32 This should be borne in mind in any efforts to revisit the mandates of the two Special Advisers and how they relate to each other.

The Dual Roles of the Special Adviser    297

The Relationship Between R2P and Conflict Prevention A second cause of conceptual confusion affecting the work of the Special Adviser has been a lack of clarity about the relationship of conflict prevention to atrocity prevention. The author’s experience as Special Adviser suggests that, however frequently atrocities occur during periods of conflict, in terms of policy-​making conflict prevention and atrocity prevention should be treated as distinct, if related, endeavours.33 During the years when the genocide prevention and R2P mandates were being developed, however, there was a marked tendency to conflate conflict and atrocity prevention.34 The first of five headings under the 2004 Action Plan to Prevent Genocide was preventing armed conflict, as ‘genocide almost always occurs during war’ and therefore ‘one of the best ways to reduce the chances of genocide is to address the causes of conflict’. The second heading was protection of civilians in armed conflict, which was framed in a peacekeeping context, while the third heading called for ending impunity, praised the path-​ breaking work of the International Criminal Tribunal for Rwanda, and urged wider ratification of the Rome Statute of the International Criminal Court. It was not until the fourth heading, on early and clear warning, that the Secretary-​General mentioned his decision to create a new post of Special Adviser on the Prevention of Genocide. Moreover, it was only under the fifth heading, on swift and decisive action, that the Action Plan referred to the ICISS report on the responsibility to protect and the ongoing work of the High-​Level Panel, and then only as sources for guidelines on how to identify and react to extreme cases. Once again, the extensive ICISS discussion of possible preventive measures was overlooked.35 There are several interrelated reasons why the conflation of conflict prevention and atrocity prevention is decidedly unhelpful from the perspective of making and implementing policy at the world body: 1. Though mass atrocities often occur in wartime, that is not always the case. For instance, in the crises in Kenya, Guinea, and Kyrgyzstan—​all during this author’s tenure as Special Adviser—​some atrocities were committed and more were feared before effective national, regional, and global preventive action was taken. There have been a number of other situations in which there was internal unrest short of armed conflict, but atrocity crimes were committed either by governments against their populations or by non-​state armed groups employing terrorist tactics. Some of these escalated into armed conflict (Libya, Syria, and Iraq) and others have not (Nigeria, Pakistan, and Burma/​Myanmar). In Sri Lanka, mass atrocities by the LTTE preceded the most intensive phases of the long-​running conflict and others by the government were part of its termination. 2. Conflated thinking about conflict prevention and atrocity prevention may lead to unwarranted complacency and a conviction that the UN can effectively tackle

298   Edward C. Luck the problem of curbing atrocities by simply redoubling its ongoing efforts at and sharpening its tools for conflict prevention and resolution. The dominant voices in UN policy-​making towards both Rwanda and the former Yugoslavia had emphasized the importance of preserving ongoing peace processes, while the few expressions of concern about possible or alleged atrocities were largely heard as discordant and unwelcome notes.36 3. When serving as Special Adviser, this author found that those SRSGs or UN headquarters officials engaged in peacekeeping, humanitarian relief, conflict management, and/​or conflict resolution in specific situations more often than not took a different tactical view than he did about what should be said, by whom, and when to the parties to the conflict or dispute or to wider publics, even when he argued that there was an acute risk of mass atrocity crimes. Understandably, these other officials often contended behind the scenes that pointed public statements or diplomatic appeals about avoiding atrocity crimes could undermine delicate negotiations and/​or conflict resolution efforts that were underway. The timing of such statements was often questioned (but when is it a convenient time to raise questions about incitement and sectarian or political violence?). Such distinctions in messaging are to be expected, as they flow from differentiated responsibilities, perspectives, and priorities. As the old bureaucratic adage puts it, where you stand depends on where you sit. Therefore, if no one at a high level is specifically charged with preventing or responding to mass atrocity crimes, then no one will be taking those stands with consistency or conviction. 4. Treating atrocity prevention as a subset of conflict prevention would not only weaken a relatively autonomous voice at the decision-​making table, it would also exacerbate the bureaucratic imbalance between the large and well-​established units charged with peacemaking, peacekeeping, and peacebuilding and the very small one mandated to help prevent and curb atrocities. Experience also suggests that the more a situation is perceived as one of actual or potential armed conflict, the less traction the two Special Advisers have had in high-​level secretariat deliberations and planning. Likewise, they have more space to play an effective operational role when mass atrocities are not associated with an ongoing armed conflict. When they are, other, bigger political and bureaucratic players tend to take the lead. In that regard, it is worth noting that, while the most recent edition of the Framework of Analysis for Atrocity Crimes produced by the Joint Office lists Risk Factor 1 as Situations of Armed Conflict or Other Forms of Instability, under that category it includes a range of sources of political, economic, and social instability, as well as a humanitarian crisis or emergency.37 This author recalls talk of or attempts by three or four larger UN entities to absorb the Joint Office on Genocide Prevention and R2P during the five years he served as Special Adviser. Some couched this as a possible reform measure to be taken in the name of streamlining and coherence. Such a step, however, would reduce the range of views presented to the Secretary-​General and, in some cases, to the Member States. It could also

The Dual Roles of the Special Adviser    299 discourage the kind of fresh thinking and targeted approaches that are most needed in the relatively underdeveloped field of study of atrocity prevention as a distinct policy challenge that requires distinct policy responses.

Tools, Players, and Places: What Has and Has Not Worked With words as their chief weapons, the Special Advisers on R2P have been uniquely situated to contribute to and even to help frame the broader conceptual and policy debates at the UN. In that regard, the innovation of the annual cycle of reports by the Secretary-​ General followed by informal interactive dialogues by the General Assembly on different aspects of the implementation effort has proven immensely valuable. They have given all Member States, on an equal footing, an opportunity to express their concerns, satisfactions, and expectations and to hear an immediate response from the Secretary-​ General, Deputy Secretary-​ General, Special Advisers, representatives of regional arrangements, and/​or independent experts. Through this process, some potential points of contention have been defused, some areas for further work have been identified, and most Member States have gained a greater sense of ownership of the principle and its course of development. It has, in essence, served as a confidence-​building exercise that was much needed given early doubts and fears about what R2P could mean for the sovereignty and security of relatively weak states. For the Special Advisers and their colleagues in the Secretariat and civil society, the process of preparing the reports has compelled a continuing effort at conceptual refinement, learning, and mid-​course adaptations. It has offered, as well, a channel for a more sustained and focused pattern of consultations with the Member States in New York and through regional gatherings. Now that six rounds have been completed, there is some risk that these annual exercises could become routinized, with both sides repeating safe and familiar assurances. So far, the Secretariat has managed to identify topics needing further discussion and produced reports that advance the common understanding of R2P principles and of the inherent challenges of implementing them nationally and internationally. It is essential, however, that R2P not become too tame in the process, losing the edge that made it both controversial, provocative, and challenging on one hand and stimulating, fresh, and potentially immensely valuable on the other hand. At this point, the annual cycle may seem routine, but that was not the case when it was first proposed by this author as Special Adviser. In the first few years following the World Summit, roughly from late 2005 to early 2008, a number of prominent observers agreed with Thomas Weiss’s assessment that what had been agreed at the Summit was ‘R2P-lite’.38 Given the ICISS report’s emphasis on the Security Council and rules for the use of force, the sentence in paragraph 139 stressing ‘the need for the General Assembly to continue consideration of the responsibility to protect’ appeared to be an

300   Edward C. Luck open invitation for sceptical delegations to delay, dilute, or even derail the implementation of R2P as policy and practice, not just rhetoric. No doubt, that is exactly what opponents sought to do. They received a considerable boost from the President of the 63rd General Assembly, Miguel d’Escoto Brockmann of Nicaragua, who, in a departure from customary diplomatic practice, took a highly personal and negative stance before and during the first big Assembly debate in the summer of 2009—​this one a formal debate preceded by a thematic dialogue—​on the Secretary-​General’s implementation report. The President expressed concerns about whether R2P would subvert the cornerstone ‘principles of sovereignty and non-​intervention’, ‘be applied only by the strong against the weak’, and ‘undermine respect for international law’. Without ‘the capacity to enforce accountability upon those who might abuse the right that R2P would give nation-​states to resort to the use of force against other states’, he doubted ‘whether we are ready for R2P’.39 Despite—​ or for some perhaps because of—​ this highly partisan stance by the President of the Assembly, the formal three-​day debate proved not only to be the longest and most intense on any item before the Assembly that year, but also remarkably constructive and forward-​looking.40 After considerable delay and some difficult negotiations, the Assembly adopted a brief resolution taking note of the Secretary-​General’s implementation report and the debate and deciding to continue its consideration of R2P, thus opening the way to the annual cycle of reports and informal interactive dialogues.41 Through words and deeds, the Special Advisers have had to address both the doubts of sceptics and agnostics and the internecine doctrinal quarrels among the supporters.42 This required addressing two sets of conceptual/​political issues, either of which could have derailed the whole implementation effort. One was the legitimate concern in many capitals—​and flagged by the President of the General Assembly—​about the possible misuse of R2P principles by powerful states seeking a rationale for intervening in weaker ones. Ultimately, only a pattern of restraint on the part of powerful states could sufficiently respond to these concerns, but the Secretary-​General and his Special Advisers have been able to offer some reassurance in terms of when and how they invoked R2P principles in their statements and diplomatic efforts. The early situations they faced—​Kenya, Kyrgyzstan, and Guinea—​were, fortunately, ones that could be addressed successfully through preventive diplomacy.43 Additionally, as noted previously, the Special Adviser on R2P also commented publicly in 2008 that the situation in Myanmar/​Burma following Cyclone Nargis did not fit R2P criteria for coercive intervention.44 The Secretary-​General’s 2009 strategy put considerable stress on prevention, as did his 2010 report on early warning and assessment and his 2011 one on regional and sub-​regional collaboration.45 Addressing the simmering debates and conceptual struggles among believers and supporters has required more sustained and nuanced attention. Some of these differences have been about the conceptual distinctions between atrocity prevention and genocide prevention and conflict prevention discussed earlier. But the deeper struggle has been between those who saw R2P as chiefly about rules for the use of force and those who stressed prevention above all else and treated the use of force as a most unattractive,

The Dual Roles of the Special Adviser    301 and for some illegitimate, last resort. In that regard, this author had to deconstruct both the 2005 Outcome Document and the 2001 ICISS report to identify pieces that could be used in the Secretary-​General’s 2009 strategy. It required combining an abiding emphasis on prevention with a keen and vocal recognition of the need to utilize coercive measures under pillar three when national authorities have manifestly failed to offer protection, as articulated in paragraph 139 of the 2005 Outcome Document. It entailed, as well, the repeated insistence that all three pillars were of equal importance, that their application should not be sequenced, and that the key to implementation was ‘early and flexible response tailored to the specific circumstances of each case’.46 Getting the doctrine right mattered both because of the lively academic exchanges on these questions and because a number of delegations apparently had gone along with the 2005 Summit agreement largely as a rhetorical exercise, without much thought to what it would mean to translate those elevated phrases into a national, as well as international, implementation strategy, doctrine, policy, and practice. In late 2010 and early 2011, the crises in Libya and Côte d’Ivoire brought these debates to a head. In both cases, the Secretary-​General, the Special Advisers, and other UN representatives first tried diplomatic means to discourage the commission of atrocities against the populations. The Special Advisers on Genocide Prevention and R2P issued two public statements and held a press conference on the situation in Côte d’Ivoire. Among other things, they warned against further incitement and the marking of homes of opposition figures by ethnicity.47 The latter practice then ceased. In both cases, the Special Adviser supported the Security Council decisions to authorize the use of force, given that national authorities had not responded to efforts to solve the crises by diplomatic and political means. In the case of Libya, the Special Adviser subsequently expressed doubts about the appropriateness of stretching the mandate to justify regime change by forceful means. The political controversies surrounding the Libya case certainly tested the depth of support for R2P and produced the Brazilian initiative on Responsibility while Protecting (RwP).48 The longer-​term response, including the increased use of R2P in Security Council statements and resolutions since then, has been encouraging.49 Particularly gratifying were resolutions 2150 (2014) and 2171 (2014), both of which reaffirmed R2P and recalled ‘the important role’ of the two Special Advisers. What also became evident in the Libyan case and then in Syria, however, was that the more major capitals become deeply involved in a situation and the more they are prone to see it in geopolitical and military terms, the less traction and voice the Special Advisers—​or even the Secretary-​General—​have in crisis decision-​making. The political space within which the Secretariat can operate effectively is restricted, of course, when the members of the Security Council are deeply divided, as has generally been the case in the prolonged and horribly cruel Syrian crisis. When they have come together on the elimination of chemical weapons—​and less consistently on the delivery of humanitarian assistance—​there, portions of the Secretariat have regained a bit of a foothold. Yet, in terms of the Special Advisers, the nature of mass atrocity prevention is so inherently political as to make their agency and voice highly dependent on how major players,

302   Edward C. Luck especially the five permanent members, interpret what is at stake in a given situation and determine how much of a role the UN should have in its resolution. In this author’s experience, individual members of the Security Council, including the five permanent ones, were always open to quiet consultations with the Special Adviser (or with the two Special Advisers together), even on quite sensitive situations.50 They usually accepted his assessments of the likelihood of atrocities being committed, but they often responded that geopolitical considerations, including the intimate politics among the members of the Council, left them little room for manoeuvre or fresh approaches. They tended to be keenly aware, moreover, of the limitations on the Council’s influence over the course of events in most places. For all the progress that has been made in raising consciousness in capitals and at the UN about the risks and consequences of mass atrocities, preventing their occurrence is still not—​and is unlikely to become—​the dominant priority in many of the most critical situations. R2P must find its place among a number of competing interests and concerns at both the national and international levels. The demands of national interest and national security may be supplemented, adjusted, or reinterpreted from time to time, but core national interests are unlikely to be replaced by international goals where responsibilities are seen as collective and diffuse and the prospects of success as uncertain. So a key task for R2P advocates, including the Special Adviser, is to persuade those countries with the capacity to respond that they have a strong interest in preventing mass atrocities. In key capitals, as well as within the Security Council and the UN Secretariat, this is a political struggle that has to be repeated with each new crisis. There will be tough cases, and Syria has certainly been one, where an emphasis on R2P principles might have led to a different approach but not to any assured outcomes. In capitals, just as at the UN, ‘being there’ requires having a high-​level official designated to be an R2P voice in the policy-​making process.51 The 2014 situation in Iraq also vividly illustrates the point. In the early stages of the advance of the forces of the Islamic State (ISIL or ISIS) in Iraq, the initial impulse for intervention—​even from the White House—​came from an atrocity prevention/​humanitarian perspective. On 18 June 2014, the Special Advisers on Genocide Prevention and R2P, Adama Dieng and Jennifer Welsh, respectively, issued a public statement warning that the growing sectarian violence against Christians, Yazidis, and other religious minorities could amount to war crimes.52 On 7 August, President Obama announced targeted military action, at the request of the Iraqi government, to ease the humanitarian plight of thousands of Yazidis gathered on Singar mountain and to break the siege of Islamic State forces gathered at its base. According to the President, ‘ISIL forces below have called for the systematic destruction of the entire Yezidi people, which would constitute genocide.’53 The United States, he continued, would work with other countries in the region ‘to provide increased support to deal with this humanitarian crisis and counterterrorism challenge. None of Iraq’s neighbors have an interest in this terrible suffering or instability.’ As the armed struggle with the Islamic State has intensified over time, the humanitarian and atrocity prevention message has remained, even as the counter-​terrorism imperative—​viewed as of existential importance by many western

The Dual Roles of the Special Adviser    303 leaders—​has taken centre stage. (The relationship between these two policy dynamics is addressed in the section that follows.)

Policy and Institutional Challenges Ahead The basic conceptual elements of R2P, including their three-​pillar framework, are well defined and largely accepted by the Member States. Future Special Advisers will need to be vigilant, however, in resisting efforts to reinterpret them to fit the exigencies of particular crises, as seen from one major capital or another. They will need, as well, to add refinements to areas of atrocity prevention doctrine and policy that have not yet been fully explored. In both respects, they can help to maintain the reputation of the Office of the Secretary-​General as the repository of international authority on the meaning and application of R2P. When crises arise, it is essential that the Secretary-​General be perceived as best placed to make an independent and impartial assessment of whether and how R2P principles should be applied. Maintaining that credibility and authority matters, even if the powerful—​nationally or internationally—​are prone to ignore the Secretary-​General’s views when the latter appear to conflict with immediate national interests. On the whole, however, the conceptual side of the Special Adviser’s work is likely to shrink over time relative to her/​his operational and institutional roles. Despite occupying a pivotal position, Special Advisers should never forget that they derive what little authority they may have from the Secretary-​General, who has been granted specific powers under the Charter, as well as through intergovernmental practice over the years. The Secretary-​General also has a unique bully pulpit, especially on questions related to norms, values, and standards. To the extent that the Special Adviser maintains a close and trusted relationship with the Secretary-​General, the latter’s international standing and bully pulpit can become extraordinarily valuable tools in promoting and steering the normative development of R2P. To make this relationship work, in turn, the Special Adviser must always bear in mind that job one is to advise the Secretary-​General candidly and to represent her/​him as fully and faithfully as possible. Others are likely to assume that the Special Adviser speaks for the Secretary-​General on all matters related to atrocity crimes and their prevention, and perhaps on some other questions as well. Everything at the UN is political, so assumptions of autonomy are luxuries Special Advisers cannot afford. At the same time, however, there is relatively little oversight of their work, given the number of SRSGs, Under-​Secretaries-General, and Assistant Secretaries-​General and the range of issues on the Secretary-​General’s plate. So a Special Adviser, especially on a relatively new and adaptable subject, like R2P, has unusually broad opportunities to make a difference in terms of helping to shape its conceptual and normative development. This author had the good fortune of being able to create the first conceptual framework and three-​pillar strategy for implementing R2P,

304   Edward C. Luck while his successor, Jennifer Welsh, has been able to make conceptual contributions without departing from the overall framework she inherited.54 The Special Adviser also needs to keep the Secretary-​General engaged in terms of her/​ his willingness to employ the bully pulpit, to give weight to atrocity prevention in internal deliberations on specific crisis situations, and to inject R2P perspectives in personal diplomacy with leaders of countries at risk or with the capacity to respond effectively. Under Ban Ki-​moon, this has been a relatively simple task given his personal identification with R2P as one of his legacy issues. Some of his advisers, however, have pushed back at times, apparently concerned that the Secretary-​General was too enthusiastic about R2P. They also tended to be more cautious than this author about the attitudes of Member States towards R2P and towards institutionalizing the position of Special Adviser. To some of these advisers, the Secretary-​General ran significant political risks by being seen as too much of an R2P advocate. From a Special Adviser’s perspective, the far greater risk to the Secretary-​General’s reputation, as well as to the UN’s, would come from ignoring or minimizing the risk of mass atrocities in situations like those we confronted in Kenya, Sri Lanka, Syria, and Libya, among others. It is not coincidental, in that regard, that the three major mea culpa inquiries initiated by the UN over the last two decades have been precisely because of the failure to prevent mass atrocities in Rwanda, Srebrenica, and Sri Lanka. Special Advisers also need to keep a sober operational and institutional balance sheet. When has the invocation of R2P principles and perspectives made a difference and when not? Which actors have been able to employ them most effectively and under what circumstances? When has the UN been a central player and when a marginal one? And, in the midst of all this activity, when and where has the Special Adviser added value? These queries are especially acute as the normative questions about R2P are being answered, step by step, and the operational and institutional ones are becoming more pointed. As the foregoing discussion relates, the list of situations in which R2P, the UN, and the Special Advisers have made a positive difference in preventing the commission or escalation of mass atrocities is growing. The breadth of international political acceptance of the legitimacy and centrality of R2P principles also continues to expand. But there are some immensely troubling trends as well. The magnitude of displaced people globally is at the highest level since the Second World War and the creation of the UN.55 Ethnic cleansing—​of the four R2P crimes, the one lacking formal legal definition and thus left out of the Framework of Analysis recently produced by the UN’s Joint Office on Genocide Prevention and R2P—​appears to be the crime of choice of some governments and a number of armed groups. The thirst of armed groups to commit mass atrocities to terrorize whole populations, usually along sectarian lines, seems unquenchable. Perversely, the more that states and international organizations declare mass atrocities to be unacceptable, the more such terrorist tactics appeal to those intent on undermining the values and institutions that define contemporary civilization and secular, tolerant societies. At the same time, however, the transnational horrors inflicted by groups such as Boko Haram, Al-​Qaeda, Al-​Shabab, and ISIS/​ISIL should serve to remind governments of

The Dual Roles of the Special Adviser    305 all stripes that R2P is part of the struggle over values, not borders or sovereignty. This may well be one of the underlying reasons why the members of the Security Council have become more amenable to including references to R2P and other human or civilian protection themes in its resolutions and statements. Over time, as noted previously, the heavily statist paradigm that defined the initial expression of R2P is likely to shift to one putting more emphasis on individual and group values and choices.56 Secretary-​General Ban agreed with this author’s suggestion that his 2009 implementation strategy should insist that armed groups be held to the same R2P standards as states. This assertion was a considerable stretch from what had been agreed at the 2005 World Summit, but one that, as expected, was generally well received by the Member States. The growing attention devoted to atrocity crimes committed as a terrorist tactic may augur more than a conceptual adjustment for R2P, however, and the operational and institutional implications could prove troubling over time. The political forces that spawned R2P and counter-​terrorism have been largely distinct, with different origins, orientations, constituencies, doctrines, tools, and institutional manifestations. R2P advocates appear, generally, to be more multilateralist, more human rights and humanitarian oriented, and politically more liberal (in the sense that US politics employs that label). Those focused on counter-​terrorism tend to be more concerned with national security than international human rights norms, less confident of the efficacy of international institutional responses, more prone to use force as an early, even pre-​emptive tool, and politically more conservative. For those Member States that were initially concerned about R2P becoming a rationalization for the use of force by the powerful against the weak, any convergence of R2P and counter-​terrorism agendas would be worrisome. (As noted previously, such a convergence could well have the opposite effect among the five permanent members of the Council and many others, such as Nigeria, Indonesia, Pakistan, and India, facing acute terrorist threats.) There is little doubt that defeating those armed groups that regularly commit mass atrocities as a terrorist tactic would contribute very significantly to reducing the incidence and level of human suffering, including displacement, produced by atrocities. But defeating terrorism is not the same thing as stopping atrocities, just like preventing conflict is not equivalent to preventing atrocities. Future Special Advisers will have to find a distinct place and voice in national and international counter-​terrorism policy formulation and, to the extent possible, in its execution. They will need, as well, to assess the extent to which the tools and institutional machinery devoted to counter-​terrorism can provide lessons learned or a model to emulate or avoid as R2P matures institutionally. For instance, the Security Council has a series of subsidiary bodies that oversee sanctions regimes targeted at particular terrorist groups and their supporters. Within the larger counter-​terrorism community, there are networks devoted to coordination, information sharing, analysis, policing, financial controls, evaluation, and capacity-​ building, among other international functions. In turn, practitioners of counter-​ terrorism might benefit from R2P and human protection perspectives and insights, especially regarding prevention.

306   Edward C. Luck As these few surface points suggest, as conceptually and bureaucratically distant as the worlds of R2P and counter-​terrorism might appear, they are likely to bump into each other with increasing frequency and impact in the coming years. This is not because R2P advocates anticipated this convergence of concerns, but because a cluster of armed groups with sectarian agendas and terrorist tactics decided to invade the humanitarian/​human rights space in which R2P operates. Though the Secretary-​General’s 2009 implementation strategy did underscore, for the first time, the responsibility of armed groups employing terrorist tactics—​not just states—​to abide by R2P principles, no one anticipated how many of the failures of R2P would come in places where those wielding terror would be prepared—​even eager—​to flout global norms relating to mass atrocities. It is that unexpected dynamic that is pressing the R2P and counter-​terrorism communities to take a closer look at each other to see what synergies might exist, conceptually, operationally, and institutionally. There is another development that was not contemplated in the original ICISS and World Summit versions of R2P and yet has proven to be a major challenge to R2P in practice. The initial model of R2P focused on ‘bad’ governments committing atrocities against ‘good’ populations through the application of one-​sided violence.57 That assumption simplified the moral arguments and created wide political and popular appeal for R2P. It held in some recent cases, such as the early stages of the atrocities in Libya and Syria, but even in those situations the dynamics have departed from that model over time, with deeply troubling results. In places such as the Central African Republic and South Sudan, it has been very hard to identify the ‘good guys’ in the internecine violence that has left lots of victims without producing any heroes. And in the final stages of the civil war in Sri Lanka, the terrorist tactics of the LTTE opposition undoubtedly reduced international support for intervention, as the government’s claims that it was pursuing a counter-​terrorism campaign appeared to gain some sympathy in important capitals.58 These conceptual dilemmas will need to be addressed by future Special Advisers if support for R2P is to be sustained at current levels, for these kinds of cases, in which the violence is not so one-​sided and the victims do not engender so much sympathy, may reinforce the claim of sceptics that R2P cannot be applied effectively to the hardest situations. These conceptual and operational challenges underscore the need to address the institutional anomalies that have been endemic since the appointment of the first Special Adviser for R2P seven years ago.59 It really makes no sense to give the more senior Special Adviser, at the Under-​Secretary-​General level, the narrower mandate of genocide prevention, while relegating the more expansive and challenging mandate of developing R2P conceptually, politically, and operationally/​institutionally to a part-​ time, unpaid, Assistant Secretary-​General. The higher level, full-​time, and paid post is mandated to deal with only one of the four R2P crimes, and that the one that occurs the least often. In practice, the other crimes have been treated as precursors to genocide, but that relegates the most horrific crimes of recent years to an artificially secondary status. The two pairs of Special Advisers to date have made the best of a dysfunctional and illogical set of institutional arrangements, but the next Secretary-​General should seek

The Dual Roles of the Special Adviser    307 Member State approval for something close to what Secretary-​General Ban had initially proposed to the Security Council in August 2007: that the senior post should address both genocide prevention and other mass atrocities (the other three R2P crimes) and should be that of a Special Representative of, not a Special Adviser to, the Secretary-​ General. The Special Adviser and Assistant Secretary-​General should be paid, whether on a full or part-​time basis, and cover all four crimes as well. Experience has demonstrated the need to have a senior figure represent the Secretary-​ General in the field, visiting states under stress and having access to leaders of governments, civil societies, and armed groups. That generic need is why the numbers of Special Representatives have grown so dramatically over the years. There is a parallel need for fresh and candid reporting back to the Secretary-​General and the Security Council on developments that could affect the likelihood of mass atrocities being committed, including in those places where there is a sitting Special Representative focused on conflict resolution. It is not coincidental, in that regard, that the first time the Special Adviser on Genocide Prevention was allowed to brief the Security Council at a regular meeting was after Adama Dieng’s trip to South Sudan with the High Commissioner for Human Rights in 2014, as noted previously. The role of Special Adviser, based at headquarters, providing advice and speech writing to the Secretary-​General, working closely with Member State delegations and civil society, and focusing on the conceptual, political, and institutional development of R2P, is essential as well. But those critical functions can be performed at an Assistant Secretary-​General level, as the key is the Adviser’s relationship with the Secretary-​General. However these roles and titles are arranged, it is important that both posts cover the same, full range of atrocity crimes that R2P does. So, normatively, operationally, and institutionally, the R2P journey continues. The threat of further atrocities has faded in some places, only to emerge unannounced in others. Given the human consequences of failure, being right most of the time is not enough. In terms of effectiveness, ‘getting there’ and ‘being there’ will always remain works in progress. One cannot, and should not, say with confidence that the age of mass atrocities has come to an end, that the threat is behind us, or that the Special Adviser has completed her or his work.

Notes 1. United Nations Secretary-​General 2008b, SG/​A/​1120-​BIO/​3963. Almost six months earlier, the Secretary-​General had notified the Security Council of his intention to make this appointment. United Nations Secretary-​General 2007, S/​2007/​721. This author, from the United States, served as Special Adviser until July 2012. In July 2013, Professor Jennifer Welsh of Canada was appointed as his successor. 2. United Nations News Centre 2006. This author was the principal drafter of that speech. 3. Much the same pattern has prevailed for decades in the historic mission of advancing the observance, as well as the norms, of human rights. This suggests that normative causes tend to be sustained even when they do not produce quick, consistent, and assured policy solutions to age-​old dilemmas of human and state behaviour.

308   Edward C. Luck 4. Fröhlich 2014. Noting that there were only eight SRSGs in the early 1980s, he attributes the surge in the early 1990s to the expansion of African and thematic mandates (p. 177). 5. As of December 2014, the UN website lists 118 Special and Personal Representatives, Envoys, and Advisers of the Secretary-​General, including deputies. Of these, more than two-​thirds (80) have regional, mostly field, responsibilities, reflecting the expansion of peace and peacekeeping operations, with more than half of these (43) in Africa. Twenty address growing security challenges in the Middle East. 6. These have addressed, in chronological order, children and armed conflict, prevention of genocide, the responsibility to protect, sexual violence in conflict, and violence against children. 7. ICISS 2001. 8. The report does acknowledge the ongoing discussions at the UN about establishing a unit to ‘receive and analyze’ sensitive information relating to conflict-​prone areas, though this is cast in the framework of conflict prevention not atrocity prevention. ICISS 2001, p. 22, para. 3.16. 9. The classic model for international norm creation was presented by Finnemore and Sikkink 1998. This author found, however, that their model does not account for the persistence of political contestation that continued to characterize the R2P experience even into what the model would have expected to be the ‘norm cascade’ stage. Luck 2010. 10. See the chapter by Charles Cater and David Malone in this Handbook. 11. In its chapter on the Responsibility to React, the report refers to Article 99 and to the possibility of either the Security Council or the Secretary-​General dispatching fact-​finding missions when the Council is considering human protection measures. ICISS 2001, p. 35, para. 4.31. 12. United Nations High-​Level Panel on Threats, Challenges and Change 2004, pp.  65–​6, paras. 199–​203. 13. United Nations Secretary-​General 2004b, S/​2004/​567. This was particularly unfortunate given how actively Méndez pursued the possibilities of both public and private diplomacy to try to prevent mass atrocity crimes in a number of difficult situations. See, for instance, Bellamy 2009, pp. 116–​17. 14. United Nations Secretary-​General 2007, S/​2007/​721. 15. United Nations Secretary-​General 2007, S/​2007/​721. 16. In practice, the two appointees worked well together on a collegial basis, with little sense of hierarchy and with considerable deference to the distinct aspects of their respective mandates. Whenever possible, they released joint statements on situations of concern. On some of the toughest cases, such as Sudan/​South Sudan and Syria, they would agree on which of them should take the lead. 17. United Nations Security Council 2007, S/​2007/​722. 18. In this chapter, the term ‘norm’ is used in the colloquial manner that political scientists or public commentators employ to refer to a widely accepted principle, value, or standard. At the United Nations, ‘norm’ generally refers to a binding legal obligation, so some delegations objected, particularly in early debates, to calling R2P a ‘norm’. As Special Adviser, therefore, this author usually referred to R2P as an emerging or developing norm. It is based, of course, on long-​established tenets of international law related to genocide, war crimes, and crimes against humanity. 19. United Nations Internal Review Panel on UN Actions in Sri Lanka 2012. The Security Council did not even meet on the issue at that critical juncture.

The Dual Roles of the Special Adviser    309 20. For a more detailed discussion of the place of R2P perspectives and the role of the Special Adviser in UN Secretariat deliberations on the crisis in Sri Lanka, see Luck and Luck 2015. 21. United Nations Secretary-​General 2013. Also see Eliasson 2013. 22. On the whole, this has been the historic pattern with human rights and humanitarian norms, which grew and ripened for many decades before high-​level posts were established at the UN to champion them. The growth and institutionalization of R2P has occurred much more rapidly, no doubt in part because it was able to build on the conceptual foundations and institutional infrastructure laid by these predecessors. 23. United Nations Secretary-​General 2008c, SG/​SM/​11701. The author drafted that address and subsequent ones given by the Secretary-​General through July 2012. 24. For a comprehensive account of the African Union’s mediation effort in Kenya, see The Office of the African Union Panel of Eminent African Personalities 2014. 25. The Secretary-​General’s first public statement about the dangers of escalating violence was made within days of the election and he and former Secretary-​General Annan warned the leaders of both sides to stop the incitement being carried out by their supporters. It soon subsided, along with the level of violence. See United Nations Secretary-​General 2008a; United Nations General Assembly 2009a, A/​63/​677, p. 24, para. 55; Luck and Luck 2015; Preston-​McGhie and Sharma 2011. 26. For Foreign Minister Bernard Kouchner’s initial comments, see Mydans 2008. He later decided that it was not an R2P situation after all. See statement in Le Monde, 20 May 2008. For a balanced account of this episode and the range of responses it triggered, see Asia​ Pacific Centre on the Responsibility to Protect 2008. 27. The initial R2P paradigm, as enunciated persuasively by the 2001 ICISS report, focused on the decisions and actions of governments and intergovernmental bodies, especially the Security Council. This author’s experience as Special Adviser, however, has convinced him of the parallel importance of understanding the motivations, perceptions, and interests of individuals and groups as well. The top-​down perspectives addressed in the ICISS report need to be complemented and supplemented by more nuanced bottom-​up insights as well. The notion of an Individual Responsibility to Protect was introduced in United Nations General Assembly 2009a, A/​63/​677 and further developed in Luck and Luck 2015. 28. United Nations Secretary-​General 2004a, SG/​SM/​9197 AFR/​893; United Nations 2004, HR/​CN/​1077. 29. United Nations Secretary-​General 2004b, S/​2004/​567. 30. United Nations 2001, A/​55/​985-​S/​2001/​574, 1, 6, paras. 3–​4, respectively. 31. Schabas 2001, for instance, has argued that the mass killing in Cambodia did not qualify as genocide in part because of the lack of identified and protected groups of victims. The Cambodian tribunal has charged the leaders responsible for the murder of over a million of the majority Khmer population with crimes against humanity, not genocide. In terms of Darfur, Strauss 2005 has noted that even the belated identification of the violence as genocide, which he called a ‘contested concept’, did not lead to effective action on the part of the United States or other external powers. 32. For an accounting of the conceptual advances at the Summit, see Luck 2011, pp. 91–​4. 33. From a somewhat different perspective, Alex Bellamy has also argued for a focus on the prevention of the four specified crimes rather than treating atrocity prevention as a subset of the larger enterprise of conflict prevention. See Bellamy 2009, pp. 101–​2 and 130–​1. 34. A number of scholars point out that the correlation between genocide or other mass atrocities and armed conflict remains quite strong. For a helpful overview of the literature, see Strauss 2007.

310   Edward C. Luck 35. The International Commission concluded that ‘prevention is the single most important dimension of the responsibility to protect’ and its report included a detailed section on the ‘responsibility to prevent’. ICISS 2001, pp. xi, 19–​27. 36. United Nations 1999; United Nations Security Council 1999, S/​1999/​1257; United Nations General Assembly 1999b, A/​54/​549. 37. United Nations Office on Genocide Prevention and the Responsibility to Protect 2014, p. 10. This edition includes crimes against humanity and war crimes, as well as genocide. 38. Professor Weiss, who had served as research director for the ICISS Commission, has criticized the 2005 World Summit for just approving ‘ “R2P-​lite”—​that is, without specifying the criteria governing the use of force and insisting upon Security Council approval’. Weiss 2006, p. 750. Also see Weiss 2014, p. 15. 39. United Nations, President of the 63rd Session of the UN General Assembly 2009. 40. For summaries, see the websites of the Global Centre for the Responsibility to Protect, the International Coalition for the Responsibility to Protect, and the United Nations. The Special Adviser was permitted to make a short statement at the outset of the thematic dialogue, but the only member of the Secretariat allowed under Assembly practice to speak before a formal meeting of the Assembly was the Secretary-​General. He gave a statement and answered questions from the Member States on 21 July 2009, as he had long been scheduled to be away from New York on the date the President of the General Assembly’s Office decided to schedule the formal debate. Though the format of informal interactive dialogues has the advantage of permitting the participation of members of the Secretariat, officials from other organizations, and independent experts, the practice is that they are not to have outcomes, which formal debates may have. 41. United Nations General Assembly 2009b, A/​RES/​63/​308. The Assembly had unanimously adopted the 2005 Outcome Document, with its three paragraphs on R2P, in United Nations General Assembly 2005, A/​RES/​60/​1. 42. Initially there were many fence-​sitters as well. It was critical to engage them in the early doctrinal discussions, including their capitals whenever possible, making sure that their views were taken into account. Otherwise, only the loudest voices from both sides of the debate would be heard, giving the impression of a more polarized political environment than was actually the case. 43. See, for instance, the Special Adviser on the Prevention of Genocide, Francis Deng, on his mission to Guinea in March 2010 (United Nations, Special Adviser on the Prevention of Genocide 2010). Somewhat ironically, for those delegations most worried about the overuse of R2P, the UN’s failure to invoke R2P principles in Sri Lanka in early 2009, as noted previously, was probably reassuring. 44. For a more detailed exposition of his views, see Luck 2008. 45. United Nations General Assembly 2010 and United Nations General Assembly 2011, A/​65/​ 877-​S/​2011/​393. 46. United Nations General Assembly 2009a, A/​63/​677, 2. 47. United Nations Press Release 2010. For these and other statements, see the website of the Joint Office. The frequency of such statements on situations of concern accelerated after the establishment of the Joint Office, beginning with the joint statement on the situation in Kyrgyzstan on 15 June 2010. The latter was coordinated with those of the High Commissioner for National Minorities of the OSCE, who was better placed to conduct

The Dual Roles of the Special Adviser    311 diplomatic efforts on the ground. He and the Special Advisers agreed that the violence there constituted ethnic cleansing, permitting them to speak with a single voice. 48. For a pointed analysis of the Brazilian initiative, see Benner 2013. Though the RwP discussion was probably helpful politically, it did distract attention from what this author has called Responsibility Before Protecting and Responsibility After Protecting. The international (and national) failures after protecting have been particularly telling. 49. Both the Global Centre for R2P and the International Coalition for R2P keep track of references to R2P in Security Council resolutions. The Centre counts 29 since 2006, with 24 of those since February 2011, when force was authorized against Libya. According to the Coalition, the numbers are 25 and 21, respectively (it also notes six Presidential Statements). See their websites. 50. Francis Deng initiated a useful practice of having the two Special Advisers meet informally with the new President of the Security Council each month, or as often as that could be arranged. This author was able to brief the Council members at an Arria formula meeting convened by South Africa and at what was termed an ‘informal, informal’ at the UN Mission of the United Kingdom, but not at regular meetings or consultations of the Council. Demonstrating continuing progress on gaining access, on 2 May 2014 Adama Dieng, the Special Adviser on the Prevention of Genocide, briefed the Council on a visit he and the High Commissioner for Human Rights had just completed to South Sudan. 51. It is encouraging, in that regard, that some 43 countries have appointed R2P Focal Points. The Global Centre has been backstopping this initiative. For the initial press release by the co-​sponsoring countries, see GCRtoP 2012. One of the more ambitious national efforts to encourage government-​wide attention to stopping atrocities is Washington’s Atrocity Prevention Board. See Finkel 2014. 52. United Nations Press Release 2014. 53. The White House Office of the Press Secretary 2014. 54. For instance, see the useful list of inhibitors of atrocity crimes in the United Nations General Assembly 2014, A/​68/​947-​S/​2014/​449, pp.  11–​15, paras. 43–​58. The report, the sixth in the annual series, cogently addresses pillar 2 of the Secretary-​General’s implementation strategy. 55. UNHCR has reported that the number of people forcibly displaced in the world has exceeded 50 million for the first time since the Second World War. UNHCR 2014. 56. Luck and Luck 2015. 57. Those committing atrocity crimes as an act of terrorism, of course, are prone to see these as acts of asymmetrical warfare in which such crimes are justified as a means of countering the superior conventional military and police capacities of the states being targeted through attacks on their populations. Viewed through that distorted lens, terrorist atrocities are purported to be the acts of the weaker, not stronger, party. In Iraq and Syria, the Islamic State is an exception in that it has sought to conquer and hold territory through the employment both of conventional military power and of acts of terror and mass atrocity. 58. These points are also addressed in Luck and Luck 2015. 59. The respective functions of the two Special Advisers in early warning and assessment, for instance, were addressed in the Annex to United Nations General Assembly 2009a, A/​63/​ 677 and in United Nations General Assembly 2014, A/​64/​864.

312   Edward C. Luck

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