The Ploughshares Monitor Autumn 2005 Volume 26 Issue 3
One of the widely declared successes of the September World Summit at the United Nations was the leaders’ endorsement of the doctrine of “the responsibility to protect” (R2P). Because the Summit failed so spectacularly on other key issues, notably Security Council reform and nuclear nonproliferation and disarmament, and given the prominent opposition of the United States and other influential states such as China, Egypt, India, and Russia to enshrining R2P as a legal obligation that extends to the international community, what emerged was a partial but welcome step toward recognizing the right of vulnerable people to protection.
The leaders agreed that “[t]he international community, through the United Nations, also [i.e., in addition to individual states which hold the primary responsibility] has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI [peaceful settlement of disputes] and VIII [regional arrangements] of the Charter of the United Nations, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity” (UN 2005, p. 31).
Although the Summit took a clear step towards obligating the international community to deliver on the right of people to be protected from gross atrocities, the leaders held back on two important counts:
- the list of the perils from which people are to be protected is more restricted than some advocates of the rights of the vulnerable wanted, and
- the obligation to come to the aid of vulnerable people is not unambiguously extended to the Security Council in the exercise of its authority under Chapter VII (responding to threats to international peace).
The December 2004 report of the High-level Panel on Threats, Challenges and Change (UN 2004), which was part of the preparatory process for the Summit, used more inclusive language to describe the threats to the vulnerable that should invoke the international community’s collective responsibility to protect people – namely, “genocide and other large-scale killing, ethnic cleansing or serious violations of humanitarian law which sovereign Governments have proved powerless or unwilling to prevent” (p. 85). The Summit’s list is more specific: genocide, war crimes, ethnic cleansing, and crimes against humanity. Actually, the United States favoured a broader definition and suggested adding the phrase, “other large-scale atrocities.” That amendment, or the formulation of the High-level Panel, would have made the point that help to the vulnerable should not depend on technical definitions of genocide or crimes against humanity, but should be forthcoming in the event of any large-scale catastrophe.
While the United States was open to broadening the protection criteria, it was nevertheless adamant that any protection coming from the international community should not be regarded as an obligation. That led to the Summit’s second major failing in its R2P declaration, namely the failure to place any obligation on the Security Council under Chapter VII to act in response to, or to prevent, the listed atrocities when the peaceful Chapter VI efforts fail. And that, after all, is the core of the R2P discussion. In places like Rwanda and Darfur, who has a responsibility to act when peaceful means have demonstrably failed to prevent catastrophic events and to protect people caught in those events?
The Summit declaration clearly holds the international community in general responsible for doing what it can to protect people, short of using the coercive measures prescribed in Chapter VII. But with regard to action under Chapter VII, it says only that “we are prepared to take collective action…on a case-by-case basis” (UN 2005, p. 31). There is no reference to an explicit responsibility. In effect, the declaration says that under Chapter VII there is an option to protect – that is, the wording is careful to preserve maximum discretion for the Security Council. One can read into the statement a declared willingness and even intention to act to protect vulnerable people, but there is no clear commitment and certainly no recognition of an obligation to act if peaceful means fail.
The High-level Panel report made no such distinction between Chapter VI and Chapter VII responsibilities. In fact, the issue is addressed under a discussion of provisions under Chapter VII of the Charter in relation to Security Council responsibilities regarding internal threats to peace and security. When national Governments “are unable or unwilling tothat responsibility should be taken up by the wider international community – with it spanning a continuum involving prevention, response to violence, if necessary, and rebuilding shattered societies” (UN 2004, pp. 56-57). That formulation by the High-level Panel parallels that of the International Commission on Intervention and State Sovereignty, which says the responsibility to protect “embraces three specific responsibilities” – to prevent, to react, to rebuild.
It is tempting to find comfort in the Summit’s formulation – that is, in its insistence that the international community has an obligation to use peaceful means to protect vulnerable people, but that it has no obligation to engage in the coercive measures authorized under Chapter VII when peace is shattered by the egregious abuse of large numbers of vulnerable people. However, the commitment to peaceful means was not matched by a commensurate commitment from states to provide the resources needed for those peaceful means to be effective in preventing extreme abuse or in rescuing people and rebuilding after abuse. Furthermore, the failure to oblige the Security Council to act under Chapter VII in prescribed circumstances allows the Security Council to continue to act purely at its own discretion, with the obvious likelihood that it will continue to give priority to its own interests and convenience rather than to meeting the needs and rights of those in peril
The Summit declaration offered an opportunity to specifically clarify the Security Council’s responsibility to provide for the safety of people, to require action in response to particular external conditions (rather than in response to the perceived interests of members of the Council), and, by implication at least, to assign culpability when the Council fails to act responsibly under broadly prescribed circumstances.
The clear assertion that the international community has a “responsibility to protect” populations in peril was intended to translate the obvious moral responsibility of humans to help each other into a political and ultimately legal obligation. The “responsibility to protect” doctrine is intended to lead the international community beyond good intentions to the recognition:
- that people in peril have a right to protection from genocide, ethnic cleansing, crimes against humanity, and other large-scale atrocities;
- that such a right has meaning only if there is a corresponding obligation to provide protection; and
- that, while the primary obligation lies with each state to protect its people, when a state is unable or unwilling to meet its obligation, then that obligation accrues to the international community.
The most difficult element of this obligation is, of course, military intervention. The question of using military force for humanitarian purposes in extraordinary circumstances does not arise because of a preference or propensity for military action. Rather it arises because of the failure to prevent extreme violence against vulnerable civilians, or to rescue civilians from violence, by peaceful means. The obligation of the international community to protect people when their own governments can’t or won’t protect them is not confined to measures short of the use of force. The people of Darfur have a right to collective protection, including through the coercive measures provided for in the UN Charter. And of course the “responsibility to protect” doctrine seeks to elaborate clear and restrictive conditions under which Charter-sanctioned force is to be used.
Again, echoing the Canadian-sponsored International Commission on Intervention and State Sovereignty, the High-level Panel report articulates prescribed and circumscribed situations in which the resort to force is appropriate:
- conditions of genocide, other large-scale killing, ethnic cleansing, or serious violations of international humanitarian law exist or are imminently apprehended;
- the primary purpose of forced intervention is to halt or prevent the imminent threat of the above;
- every non-military remedy has been exhausted or explored, leading to the conclusion that such measures will not succeed in protecting the vulnerable;
- the force used is the minimum necessary; and
- there is a reasonable chance that the intervention will be successful, and a reasonable judgment that the consequences for the vulnerable of inaction will be much more severe than the consequences of intervening.
The Summit’s failure to affirm the conclusions of the High-level Panel allows the Security Council to deny that it ever has an obligation to act and allows it to continue insisting that its actions, including military actions, are a matter for its own discretion and reasoning. A clear Summit declaration that the Security Council’s responsibilities to the vulnerable exist in accordance with the above conditions would have been a step toward demanding greater accountability from the Security Council for its acts of commission and omission.
In its wisdom, the Summit did “stress the need for the General Assembly to continue consideration of the responsibility to protect populations…, bearing in mind the principles of the Charter and international law” (UN 2005, p. 31).
UN 2004, A more secure world: our shared responsibility: Report of the High-level Panel on Threats, Challenges and Change, A/59/565. December 2.
UN 2005, 2005 World Summit Outcome, September 20, A/60/L.1.