Critically evaluate the contribution of the 'responsibility to protect' to the humanitarian cause

Introduction

In international law, the conflict between state sovereignty and human rights is a constant phenomenon, and often sovereignty trumps human rights, except in the case of genocide (Donnelly, 2007, p. 289). The conflict between state sovereignty and human rights is seen most prominently in the state’s responsibility to protect its people. Some states do violate their duty towards their citizens and indulge in blatant disregard for human rights values. There are enough examples in the last few decades of states violating the rights of their own people by indulging in genocide, ethnic cleansing and even use of chemical and biological weapons (Farer, et al., 2005). The principle of responsibility provides that states have an obligation to protect human rights of their people. In case states themselves violate these rights, then international community and organisations may take action (Oman, 2012). Humanitarian crisis forces a situation of dilemma in international law. On one hand, the traditional precepts of state sovereignty require that states do not intervene in the domestic matters of another state. On the other hand, humanitarian crisis involves violation of human rights on such a large scale that cannot be ignored by the international community. Humanitarian crisis pushes international community and organisations to take steps that may amount to intervention in ordinary circumstances. However, in the extraordinary situation of human rights violations, such action becomes a necessity. This essay considers the principle of ‘responsibility to protect’ as a part of the larger debate on state sovereignty, non-use of force and non-intervention and critically analyses how these concepts react or interact with the humanitarian causes that require an invoking of the principle.

Responsibility to protect in humanitarian causes

Humanitarian causes, by their very nature, transcend national boundaries in terms of the interest they espouse in the international community. Genocide in Rwanda or Kosovo or Iraq, may directly concern only the aggressors or the victims. However, these events involve human rights violations at such a massive scale, that they interest people and governments across the world. In such situations, there are always advocates of action, who try to build pressure on their governments and international community, to redress the human rights violations. One writer says that if the principle of responsibility to protect, is to be seen as a “modern rendering of those movements and advocates who have called for action to redress suffering abroad, then its origins can be traced back many centuries” to a time when the principle of just war was used in the same sense (Hehir, 2013, p. 122). However, the closer roots of the principle of responsibility to protect can be traced to the Kosovo crisis in 1999 and the international responses that it garnered, including NATO’s intervention which was considered to be illegal but illegitimate (Donnelly, 2014, p. 231).

The legitimacy of the intervention in Kosovo and similar situations elsewhere comes from the human rights jurisprudence in international law, which demands protection of human rights. The illegality comes from the interpretations of principles of non-use of force and non-intervention, which are not only enshrined in the UN Charter (Articles 2(4) and (7) respectively), but are also considered to be jus cogens (Helmersen, 2014). Although, there is divergence on that point and some writers question the peremptory status of principle of non-use of force (Green, 2011). In any case, humanitarian intervention does involve use of force by one state (or group of states or organization) against another state.

Humanitarian intervention refers to the "use of armed force by one state against another to protect the nationals of the latter from acts or omissions of their own government which shock the conscience of mankind” (L. Holzgrefe and Robert O. Keohane, quoted in Farer, et al., 2005, p. 212).

The conceptualisation of the principle of ‘responsibility to protect’ was introduced by the International Commission on Intervention and State Sovereignty (ICISS) (Cohen, 2012). It was later endorsed by 195 states of the UN, at the 2005 World Summit on prevention of genocide, war crimes, ethnic cleansing and crimes against humanity (Bellamy, 2009, p. 66).

In particular, the ‘responsibility to protect’ relates to the protection of people against crimes of genocide, war crimes, ethnic cleansing and crimes against humanity (Cohen, 2012, p. 8). It is the obligation of states to protect the basic human rights of its citizens. If the state fails to perform its obligations in this respect, or deliberately violates the human rights of its own people, then the international community may commit to a humanitarian intervention in that state. This is a controversial area because such intervention may be considered to be a violation of international law. Two principles that are invoked to prevent such intervention are: the principle of non-use of force (UN Charter, articles 2(4)) and the principle of non-intervention (UN Charter, article 2(7)).

The debate around responsibility to protect has become more contested due to certain severe humanitarian crises seen in the past few decades, such as genocide in Rwanda, former Yugoslavia and now Syria. As pointed out by some thinkers, “the tension between two fundamental principles of international law: on the one hand, the prohibition of the use of force, and, the obligation to respect and protect human rights, on the other” lie at the heart of the debate that has taken centre stage in the international law and relations in recent times (Francioni & Bakker, 2013, p. 2). The concept of responsibility to protect is a mid-way between these conflicting principles (Francioni & Bakker, 2013).

The ‘responsibility to protect’ is provided in the Outcome document of the World Summit 2005, in paragraphs 138 and 139. Para 39 provides that states have responsibility to protect its people from genocide, war crimes, ethnic cleansing and crimes against humanity. Para 39 provides that the international community through the UN, “has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity” (Outcome Document, para 39). This is the first major international articulation of the principle with such a consensus, with 195 states voting in favour of the principle. The important aspects of the principle are that the responsibility is not only of the state, but the entire international community.

Therefore, chapters VI and VII of the UN Charter, which are the specific powers given to the UN Security Council, are provided. This means that the UN can take action amounting to intervention on humanitarian grounds. Significantly, such action has been taken by the UN Security Council.

There are significant events that led to the evolution of the principle of ‘responsibility to protect. The Rwanda genocide in 1994, the inability of the UN peacekeeping force UNPROFOR to prevent the massacre at Srebrenica, Bosnia, in 1995; the NATO intervention in Kosovo in 1999 all led to the development of a greater consciousness of the international law’s and community’s ability to deal with such situations involving mass genocides and human rights violations (Francioni & Bakker, 2013, p. 6).

It is accepted by some writers that there is a new wave of interventionism on the basis of humanitarian causes, which is being called for by people around the world and the governments representing them. One writer says that this new interventionism in the name of the humanitarian cause or values, “has played a very important role in shaping international relations during the 1990s” (Orford, 2003, p. 2). Two examples of this new interventionism are the use of force by NATO in Kosovo and the authorization of use of force in East Timor by the UN Security Council.

Due to the obvious conflict with state sovereignty in cases involving humanitarian intervention, this is something that should be sparingly used. Indeed, even the ICISS suggested that there has to be a just cause for such an intervention with another state. The ICISS had advanced six criteria, which have to be met in order for the intervention to be legitimate. These criteria are: right authority, just cause, right intention, last resort, proportional means and reasonable prospects. The threshold criterion as advanced by the ICISS, is ‘just cause’, which was described as:

“In the Commission’s view, military intervention for human protection purposes is justified in two broad sets of circumstances, namely in order to halt or avert: 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 large scale “ethnic cleansing,” actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape” (ICISS, 2001, para 4.19).

This is a very comprehensive and clear description of just cause for the purpose of humanitarian intervention. It is to be noted that the acts or omissions that lead to just cause are of such nature that, if not halted or averted, they would lead to mass scale human deaths. Another noteworthy point here relates to the state itself. It is important for just cause that the state is either unable to control the human rights violations, or does not want to, or the state has failed. This may happen in extreme situations of civil war or such armed conflicts. On the point of who is the ‘right authority’ to cause intervention, the ICISS has placed the responsibility on the Security Council (ICISS, 2001). There are two important points that are made by the ICISS here:

“There is no better or more appropriate body than the United Nations Security Council to authorize military intervention for human protection purposes. The task is not to find alternatives to the Security Council as a source of authority, but to make the Security Council work better than it has. Security Council authorization should in all cases be sought prior to any military intervention action being carried out. Those calling for an intervention should formally request such authorization, or have the Council raise the matter on its own initiative, or have the Secretary-General raise it under Article 99 of the UN Charter” (ICISS, 2001, p. XII).

There is therefore a clear indication that the Security Council is generally considered to be the right authority for taking action for dealing with humanitarian crisis. However, the Security Council may at times not take such action due to veto by a permanent member. In such a situation the General Assembly may also be authorized to take such action under the Uniting for Peace Resolution (Hehir, 2013, p. 125). An example of Security Council’s failure to take such action is Syria (Nasser-Eddine, 2012).

The role of the international organisations in humanitarian crisis

International organisations, particularly the UN, have been caught in a flux when faced with mass human rights violations and genocide such as in Rwanda. In part, the established principles of state sovereignty and non-intervention have impeded efforts to respond proactively to such situations. The principle of non-intervention was a part of the original ‘Grotian’ model (equality, territorial sovereignty and independence of states) and has been an essential part of international customary law (Cassese, 2005, p. 53). In particular, Grotius spoke against intervention in another state on the ground of the other state’s wrongdoing against its own citizenry. However, this position is untenable in the present time, when states, international community and the UN have come a long way in establishing human rights law as an important aspect of the international law (Varghese, 2012). This would also imply that international law may at times be faced with conflicts between principles of state sovereignty on one hand, and human rights on the other. At such times, intervention for humanitarian causes will be permissible under the international law.

Nicaragua v United States of America, implies the above mentioned as the ICJ observed that the customary law principle of non-intervention may be trespassed on at times. Nevertheless, the principle of non-intervention by the UN in domestic affairs of any states is an important principle of the UN Charter and is incorporated in article 2(7). There are other corollaries to this principle under the Charter, including the principle of sovereign equality of all states and the principle of non-use of force. Although the principle of non-intervention is not specifically mentioned in the Charter, the corollaries and the stated position of the UNGA on several occasions make it clear that this principle is implicit in the Charter (Brown, 2012, p. 64).

The post-cold war era has seen a significant incidence of the justification of intervention on humanitarian grounds (Buchan, 2013). Some of these incidents stand out. For instance, the NATO air strikes of 1999 against Kosovo on the ground of the latter’s ethnic cleansing were justified by participating states on humanitarian grounds and the customary international law for humanitarian intervention. On the other hand, there is no such consensus on the humanitarian crisis in Syria, nor was there one with Darfur (Nasser-Eddine, 2012).

Netherlands’ representative to the UNSC went has said that the UN Charter is not the only source of international law and that the international community regards is as a generally accepted rule of international law that “no sovereign state has the right to terrorise its own citizens” (Buchan, 2013, p. 63). A mention of the Security Council and the role that it plays in the context of the topic at hand is important. Under the UN Charter, the Security Council has been given certain powers that can also include intervention in case of humanitarian crisis.

The Security Council has taken steps for humanitarian intervention in some instances. Its pertinent to discuss here, one of the important resolutions of the Security Council in this regard, which is important also because it was unprecedented at that time. Resolution 688 was passed by the Security Council on 5th April 1991, allowing UN state parties to intervene in the humanitarian crisis caused by the Iraqi government’s actions in Northern and Southern Iraq against its ethnic minorities of Shias and Kurds (Cockayne & Malone, 2010). The crisis was of such gravity that 2 million Kurds fled from their homes in the wake of genocide. The resolution allowed the United States, Great Britain, and France to dispatch armed forces to Iraq. In a clear situation of intervention, the UN authorized forces created refugee areas for displaced Kurds in northern Iraq. The creation of these safe zones was essential to allow humanitarian aid agencies to operate (Shraga, 2011, p. 21).

The Security Council used its powers under the UN Charter to permit this action in Iraq, however, Iraq opposed this action in the UN as it was considered to be contrary to the principles of state sovereignty and non-intervention. The Security Council for its part ‘recalled’ the UN Charter, Article 2(7), which is the principle of non-intervention, at the time of making the resolution. The following clause of the resolution is clear that despite the principle of non-intervention enshrined in Article 2(7):

“Recalling Article 2, paragraph 7 of the Charter of the United Nations, Gravely concerned by the repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish populated areas which led to a massive flow of refugees towards and across international frontiers and to cross border incursions, which threaten international peace and security in the region” (U.N. Doc. S/RES/688, Apr. 5, 1991).

Resolution 688 was the first Security Council to allow use of force in an intervention for humanitarian reasons. However, there have been times when the Security Council has not taken action or has been unable to take action due to the politics within the Security Council, geopolitical considerations of the permanent members and use of veto power by any one or more of the permanent members. An important example of this inaction stands out in the case of Darfur, Sudan, which saw genocide of almost 800,000 people by militias and state agencies. For the majority of the period when the genocides were actually being carried out, no intervention came from the Security Council (Clough, 2005). The slow response of the UN Security Council to Darfur can be gleaned from the following:

“even in June 2004, when the Security Council passed Resolution 1547, which established a U.N. mission in Sudan to prepare to monitor implementation of a final agreement between the government of Sudan and the SPLM/A, Darfur was barely mentioned” (Clough, 2005, p. 4).

At the time, it appears that the Security Council was more concerned with finding a solution to the North-South civil war in Kenya. It is noteworthy that even though Resolution 1556 was a significant step for the Security Council, it was still seen as an instance of the Security Council abrogating its responsibilities to the people of Darfur, and neglecting the grave human rights situation that had arisen there (Clough, 2005). Therefore, as is clear, the Security Council may not always take such measures that amount to intervention

Conclusion

The development of the principle of responsibility to protect is an important international step in the direction of human rights protection. Undoubtedly, it signifies as major step in reconciling two conflicting positions in international law, with concerns of state sovereignty on one side, and the concerns of human rights values on the other.

The principle of responsibility to protect ensures that there are valid, justified and legal steps that can be taken to prevent to control human rights violations in a state, when the state is either unable to do so itself, or does not want to do it. At times, these human rights excesses may be attributed to the state itself, as seen in Kosovo, Rwanda and Iraq. In such situations, the principle of responsibility to protect provides that the international community, take appropriate measures amounting to intervention.

The intervention has to be legitimate, for which it is required that there is a just cause and the intervention is being done by the rightful authority. Just cause is seen in the massive human rights violations involving genocide, ethnic cleansing, etc. Rightful authority at this time is the United Nations Security Council. However, the General Assembly too may take such measures in the event that the Security Council does not. The General Assembly’s Uniting for Peace Resolution can be used for the purpose of taking such measures.

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