The inability of the international community to protect civilians under mass atrocities at several instances in the 1990s and controversies regarding unauthorized interventions signalled the urgency for an evolution in the idea and legitimacy of humanitarian intervention. Consequently giving rise to the doctrine of Responsibility to Protect (R2P) as a norm under the international law that assists the international community to protect populations against mass atrocities within the bounds of sovereign states. The paper aims to discuss the ambiguity around the idea of humanitarian intervention as well as its implementation amidst the urgent need to establish clarity around the same, thus giving way to the doctrine of R2P. The paper sheds light on the evolution of R2P and the course of its implementation with examples from Libya and Syria.
Humanitarian intervention has no legal definition as such. It refers to “measures taken by outside parties to respond to crises involving serious harm to basic human rights, to protect the affected population from such harm, to remove the sources of that harm, and perhaps to punish those responsible for it in the past” (Jhonson 2015). A range of measures can be considered as a response to crises, interventionary measures such as legal, political and economic while, “its fundamental premise is that outside powers have the right to intervene, through military means, in other countries to protect people against atrocities” (Gierycz 2010).
Humanitarian intervention morally finds its ground in the idea of human rights that gained recognition during the European Enlightenment in the 17th century; it was also around this time that human rights came to be recognized as a part of natural law. “Early recognition of the doctrine of humanitarian intervention as acceptable in international relations is widely attributed to the works of the 17th century Dutch author Hugo Grotius, also known as the Father of International Law” (See 1991). “Specific invocation of the doctrine of humanitarian intervention by intervening states arose mostly in the latter half of the 19th Century” (Fontyene 1974).
However, “things changed after the Second World War when all uses of force were beginning to be outlawed – admittedly with major exceptions – except in the permissible pursuit of self-defence” (Jayakumar 2012). The UN charter rendered the use of military force as illegal under Article 2(4) as a matter of respecting the individual states’ territorial sovereignty and approved the use of force under Article 51 as a matter of collective self defence under threat to state sovereignty. Conflictingly, there exists no legal rule that enables humanitarian intervention to use force, unlike collective security and self defence measures. Thus finding humanitarian intervention in legal black holes and prone to misuse at the mercy of powerful states.
The end of the Cold War in 1990, the collapse of the Soviet Union, and better prospects of international cooperation accompanied by the outbreaks of intra-state armed conflicts in all parts of the world set the stage for calls for a ‘‘new world order” (Kurt 2006). “The first cases for practical application of the concept of humanitarian intervention involved Somalia and Bosnia, where crises in both countries commenced in 1992” (Gierycz 2010). The UN peacekeeping mission failed to restore peace in Somalia and later the massacre of Srebrenica in 1995 proved to be a major setback to the UN’s reputation. The Rwanda genocide of 1994 was another humiliating addition to the list failed UN peace-keeping missions leading to suspicion regarding the competency of the organization to protect civilians under intrastate armed conflicts.
The recurrence of intra-state conflicts, the associated mass killings and the growing urgency to understand obligations towards protecting human rights caused discomfort for the international community. These failures also reflected the complexities in the implementation of military force in a foreign state and deep political divide in the international community with regard to the same. Another shadow that loomed upon humanitarian intervention was that of the integrity of the internationally revered idea of state sovereignty and self-determination. “The tension created by the competing concerns of human rights and national sovereignty led to uncertainty about how far the international community could go to intervene in a sovereign state in the face of major human rights violations” (Williams, Ulbrick & Worboys 2012).
“The practice of intervention, and the belief that it is in the best interests of natives who will warmly welcome and benefit from it, has a long but not necessarily distinguished lineage” (Thakur 2013). The imperial nations claimed it to be “the white man’s burden” to civilize the barbarians (the people of the East) and justified their imperial expansion on similar lines. Therefore, when NATO in 1999 responded to the mass atrocities committed in Kosovo by Serbia with military intervention under the idea of “right to humanitarian intervention”, the world gave mixed reactions. The West applauded the efforts of NATO in Kosovo and justified it as an act humanitarian intervention while NAM (Non Alignment Movement- largest grouping of nations apart from UN, majorly dominated by third world nations) dismissed the act as being of “humanitarian intervention” and pronounced it as a breach of state sovereignty.
The recurrent failure of the international community to protect populations in conflicts (in Rwanda, the Democratic Republic of Congo, former Yugoslavia, and Sudan) and the subsequent fear of unauthorized interventions (Kosovo), “led the U.N. Secretary-General Kofi Annan to intensify efforts to elaborate principles that would equally enable effective prevention of future atrocities against civilians and ensure respect for international principles of sovereignty and non-intervention in the domestic affairs of other states” (Gierycz 2010).
Evolution of R2P
In response to Anan’s call in 2001, ICISS conducted extensive consultations around the globe to better understand the problems in reconciling intervention with state sovereignty. “The ICISS report addressed two of international law’s most controversial questions: when could states use force to protect populations and which authorities would be competent to authorize it?” (Williams, Ulbrick & Worboys 2012). The report established a direct link between sovereignty and responsibility; it stated the protection of its population as the “primary responsibility” of the state thus coining the proposal of ‘Responsibility to Protect’. It discussed the use of force by the international community in case of an inability of the state to prevent mass atrocities while authorizing the UN to sanction this use of force. ICISS proposed that contrastingly from humanitarian intervention, R2P as a norm would put the interests and needs of the victims of mass atrocities ahead of the intervening powers.
The report put forward the idea of ‘responsibility to protect’ as a response, “to the very strong opposition expressed by humanitarian agencies, humanitarian organizations and humanitarian workers towards any militarization of the word “humanitarian” (ICISS 2001a: 9). It also argued that, “the language of the humanitarian intervention focuses attention on the claims, rights, and prerogatives of interveners rather than potential beneficiaries” (ICISS 2001a: 16–18). The report thus proposed a shift from ‘right to intervene’ to ‘responsibility to protect’. “Shaped in part by the ICISS consultations, The Responsibility to Protect report was published in December 2001 and endorsed by the UN High-/level Panel on Threats, Challenges, and Change in 2004, as well as by UN Secretary-/General Kofi Annan in 2005” (Thakur 2013).
In 2005, heads of states gathered at the UNGA for the World Submit to shape R2P. The Submit produced the World Summit Outcome Document (2005) in which paragraphs 138 and 139 enshrined the definition and the three pillars of the R2P. “Pillar I emphasizes a state’s obligations to protect all populations within its own borders against four mass atrocity crimes: genocide, crimes against humanity, ethnic cleansing and war crimes; Pillar II outlines the international community’s role in helping states to fulfil this obligation; Pillar III identifies the international community’s responsibility to use appropriate diplomatic, humanitarian, peaceful or coercive means to protect civilian populations where a state manifestly fails to uphold its obligations”(“The Responsibility to Protect” n.d).
It is noteworthy that R2P exclusively provides measures for military intervention in case of an intra-state conflict that is within sovereign jurisdiction; while the international humanitarian law allows the international community to regulate the use of armed force in almost all forms of conflicts. R2P was born out of the humanitarian tragedies of the 1990s and the international community’s disagreements as to whether international law recognized a “right of humanitarian intervention,” in effect a right to use force for the purposes of preventing mass human rights abuses in intra-state conflicts. (ICISS 2001)
“The March 2011, NATO led, intervention to prevent atrocity crimes being committed by the government of Libya against its own citizens marks the first major instance of Security Council practice under R2P’s third pillar”(The Economist 2011). UNSC successfully passed two resolutions for the crisis prevailing in Libya in 2011. Resolution 1970 was passed in February, 2011 in order to peacefully resolve the crisis. The failure of Resolution 1970 and the exhaustion of all peaceful methods led the UNSC to pass Resolution 1973 in March, 2011 authorizing the use of force under the Third Pillar of R2P.
The ICISS Report on the question of regime change noted that the objective of military intervention should be the protection of a population, ‘not defeat of a state’ (Akbarzadeh & Saba 2018). The manner in which NATO brought down the Qaddafi regime was considered by many a violation of the mission’s mandate, which was meant to focus solely on protecting civilians. “Only three days after airstrikes began, China, Russia, and India began calling for an immediate ceasefire, claiming that NATO had abused the terms of its mandate and was instead pushing for regime change” (Russo 2018).
“Following the Iraq experience in 2003, many states were already alarmed by the emerging doctrine of R2P as it seemed to offer powerful states more freedom to intervene unilaterally in the affairs of weaker states under the rhetoric of humanitarian emergency” (Akbarzadeh & Saba 2018) Resolution 1973 did not provide any interpretation for the phrase “all necessary means” when proposing intervention in Libya, thus the resolution was interpreted narrowly as well as broadly without revealing the actual political intent. NATO’s intervention in Libya blurred the line between humanitarian assistance and made a number of countries uncomfortable and suspicious of the third pillar of R2P.
Viewing from the standpoint of R2P’s implementation for the first time, Libyan experience gives us three important insights: Firstly, the Security Council Resolution 1973 reiterated “the responsibility of the Libyan authorities to protect the Libyan population” and reaffirmed that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians (Cohn 2011). Thus giving due consideration to pillar one and two of the R2P doctrine. Secondly, “the Security Council authorized intervention in Libya demonstrates international law’s extension to allow the use of force in situations where atrocity crimes may occur or are imminent” (Williams, Ulbrick & Worboys 2012). Thirdly, the Libyan intervention proved that the protection of the civilians under mass atrocities was of prime importance to the international community.
The response to mass atrocities in Syria was not as expeditious as in the case of Libya as the UNSC is marred by political differences between world powers that consequently affect the use of the doctrine of R2P. Apart from this, the shadow of Libyan experience looms upon the Syrian Crisis. “Many critics argued that NATO overstepped its mandate by launching a military campaign with the ultimate desire for regime change” (Nasser-Eddine 2012). “Since 2013 the Council has passed twenty five resolutions on humanitarian access, peace talks and chemical weapons in Syria” (“Syria” 2020). “Russia and China have jointly vetoed eight draft UNSC resolutions and Russia has independently vetoed a further six” (“Syria” 2020).
Acknowledging the deadlock in the UNSC during the 1990s with regard to military intervention and the subsequent breach of human rights in Rwanda and Bosnia, the ICISS report proposed for the regional and the sub-regional organizations to take lead and act to protect civilians from mass atrocities when the UNSC is unable to take timely action. Unfortunately, the clause was not given much consideration under the final R2P doctrine, it was only in the United Nation General Secretary’s Report of 2009, the General Secretary enshrined upon the possible cooperation between the UNSC approved security forces and the regional as well as sub-regional organization in times of military intervention.
The Syrian Crisis has an ethnic and religious dimension to it which has lead to a cross border spillover along with the rise of non-state actors such as the Islamic State that gained momentum in 2014, these factors led to big powers gaining political interest in the region and seeking geostrategic gains. Due to the cross-border nature of the conflict leading to escalated tensions in the region, regional powers and organisations in the Middle East have been unable to take any concrete steps and are sceptical of issuing support for international military intervention. “The lack of military intervention in response to the ongoing crisis in Syria has been taken by some commentators as evidence that the supposed norm of intervention for the protection of populations has no meaningful impact on the actual behaviour of states” (Aaronson 2014).
“The Syrian Case suggests that R2P as a doctrine of intervention will only be implemented in very specific situations wherein the strategic benefits to the interveners outweigh the costs of intervention and its coercive elements are much less likely to play a significant and viable role in determining the strategic actions of foreign and regional powers” (Carment & Landry 2014). The inability of the UNSC to act in Syria during crucial times owing to a deadlock in the UNCS indicates the need for an evolution in R2P doctrine consequently authorizing regional and sub-regional organisations to use force to prevent mass atrocities.
“R2P faces the same problems as previous humanitarian intervention tools – the lack of resources and political will” (Nasser-Eddine 2012). The Libyan experience leads to the advancement of R2P as norm but also leads to conceptual confusion with regard to its implementation. This conceptual confusion reflected in the inaction of the international community in the case of Syria which forces one to think if R2P is better off as a theoretical concept and has a less practical use. The inability of the UNSC permanent members to form a common consensus under the third pillar of R2P will consequently marginalize it as a mechanism of humanitarian intervention. Though the use of force under the third pillar of R2P is an evolving concept under international law, the international community needs to free it from the complex web of power politics.