Webdiary - Founded and Inspired by Margo Kingston

By early last week it was becoming increasingly obvious that the military junta in Burma was being recalcitrant about accepting international aid for the victims of Cyclone Nargis. One possible way of dealing with the situation might be by invoking a new principle of international law – the Responsibility to Protect (R2P). R2P has implications beyond the situation in Burma, of course, and is something that I thought might be of interest to some readers given the increasingly interconnected nature of world society. However, international law is one domain that I did not study when reading law, so I turned to Webdiarist Dylan Kissane to ask whether he could put something together on the doctrine for Webdiary. Dylan contacted Andrea Charron, a fellow student of international relations, and together they have written the article below. Thank you, Dylan and Andrea, for taking time out from writing up your respective theses, and all the best with your studies.

Andrea Charron is a doctoral candidate in the War Studies program at the Royal Military College of Canada. With a BScH from Queen’s University, MPA from Dalhousie University and an MA in International Relations from Webster in Leiden, The Netherlands, she has an eclectic academic background. Andrea has worked as a policy advisor for Canada’s Revenue Agency, Canada’s Border Services Agency and the Privy Council Office. Dylan Kissane is a doctoral candidate in the School of International Studies of the University of South Australia. He has published articles on international relations theory in peer-reviewed journals in Australia, Hungary and Romania, presented papers at conferences in Australia, Israel and across Europe and has produced two working papers for Argentina’s Centre for International Studies. He lives in Villeurbanne, France.

The Responsibility to Protect in Context
Andrea Charron & Dylan Kissane

If one reads the UN Charter, one finds that the founders were not averse to using force in order to deter aggressors and preserve international peace and security. However, while the UN was formed to “save succeeding generations from the scourge of war”, the list of scourges is growing. The real threats to international peace and security are no longer confined to violations of state sovereignty for which the UN collective security system was created. Rather, genocide, massive violations of human rights, terrorism, and weapons of mass destruction (WMD) represent immediate international security threats that are beyond the scope of any one state to solve.

A forum through which states can act in common to ensure that international peace is maintained seems even more relevant today than it was sixty years ago, yet the UN is floundering. The Oil-for-Food scandal, the Iraq War, and lack of action in Darfur are all evidence for some pointing to the need for large-scale UN reform, including its collective security system. The UN High Level Panel (HLP) has produced a report that “puts forward a new vision of collective security - one that addresses all of the major threats to international peace and security felt around the world.” The HLP suggests collective security today should rest on three pillars or assumptions (A More Secure World 2004: 11). The first is the continued need for collective responses at the global, regional and national levels. The second is the acceptance that certain threats pose serious security concerns to all states, and the third, also known as the Responsibility to Protect, is the realization that some states cannot and will not protect their own people and will harm their neighbours.

The greatest advocate of the need to expand the UN’s collective security system to include armed humanitarian intervention was the former Secretary-General Kofi Annan. Deeply disturbed by the international community’s limited response to the Rwandan genocide, Srebrenica, Darfur and other intra-state conflicts that resulted in “gross and systematic violations of human rights that affect every precept of our common humanity,” he believes it is time to equate and translate these gross violations into threats to international peace and security.

The idea of intervening collectively with force in a state that is abusing its own people is not new – many argue it predates the UN Charter and is supported by early “just war” theory. This theory expounded the permissibility of war if the attacking states believed that their war was waged against an immoral enemy. This was considered ‘just cause.’ But today just war theory is considered antiquated customary law that has since been supplanted by the Covenant of the League, various treaties such as the Kellogg–Briand Pact, and, of course, the Charter. These legal regimes outlaw traditional war to varying degrees. Reinterpreting these bodies of law to promote armed intervention for the purpose of ending human rights abuses requires counter-restrictionist (i.e. more liberal) interpretations of these international bodies of law that some states are hesitant to support.

Furthermore, states have not used the protection of innocent civilians as a reason to use military force consistently. Even though cases such as Vietnam’s war with Cambodia and Tanzania’s war against Uganda are used as early examples of “armed humanitarian intervention”, neither Vietnam nor Tanzania used the humanitarian imperative as their just cause. Rather, the reasons for war given by Vietnam and Tanzania were self-defence for breaches to the territorial integrity of the state. The Security Council has preferred to decide each case on an individual basis and has shunned doctrinal constraints that force their collective hand. The problem for proponents of Responsibility to Protect (R2P) is that numbers are simply not in their favour – a majority of states still believe that the principle of sovereignty, as enshrined in the Charter, protects states from interference in their domestic affairs – even if those states are engaged in the large-scale abuse of their own citizens.

Having adopted the Responsibility to Protect as another pillar of the UN’s collective security system the Security Council now has a “responsibility” to act. There would be greater impetus on the Council to respond to massive human rights violations because Responsibility to Protect articulates when armed intervention is needed.

There have been many books and articles written on this new “responsibility” including Simon Chesterman’s Just War or Just Peace? Humanitarian Intervention and International Law (2001) and Nicholas Wheeler’s Saving Strangers: Humanitarian Intervention in International Society (2000) which are core texts. However, while they debate the legality of the “responsibility”, what is missing are the arguments that concretely transfer “gross violations” from the ‘respect for human rights’ basket to the ‘threats to peace and security’ basket, which then necessitates collective armed force.

The International Commission on Intervention and State Sovereignty (ICISS) and the HLP both agree that regardless of whether a legal norm has developed or not, there is a growing international consensus that, under certain circumstances characterized by massive human rights abuses, a legitimate case for armed intervention is emerging. So long as states can make the fundamental shift in thinking from “sovereignty as authority” meaning “sovereignty as an unrivalled control over a delimited territory and the population residing within it” (Welsh 2002: 511) to “sovereignty as responsibility” meaning “sovereignty as conditional on a state demonstrating respect for a minimum standard of human rights” (Welsh 2002: 512) then a norm of responsibility to protect will emerge. If this shift can be made, then armed force can be employed more consistently.

The key will be to what extent the UN is able to establish and impose the two other responsibilities that make up the responsibility to protect. These include the responsibility to prevent (addressing root causes) and the responsibility to rebuild (recovery, reconstruction and reconciliation so as not to slip back into a state of conflict). These mandates are always preferred to armed conflict. If, after a concerted effort to stop the conflict, the Security Council must entertain the use of force as well as the possibility of a regime change then the Security Council must be willing to act decisively. After all, there is no point stopping a Pol Pot from killing his people only to leave him in-charge once the troops have left. Yet this represents the most difficult dilemma for R2P as implicit in the doctrine is the need for regime change. Collective security, based on WWII thinking, is all about stopping the unilateral use of force and not promoting regime change and democratization. It is this expansion of the collective security system that is proving most difficult for the UN system.

While R2P does not undermine collective security elements per se, it would require that the Security Council define threats to peace and security to include massive human rights abuses. With the establishment of UN judicial courts like the International Criminal Tribunal for the Former Yugoslavia, for Rwanda and the Special Tribunal for Cambodia, all signs point to this eventuality. But R2P, as former Australian Foreign Minister Gareth Evans counsels, is the last measure when all means are exhausted to protect individuals from mass atrocities.

The difficulty in expanding the doctrine of R2P to call for armed military intervention to ensure aid supplies reach the victims of the cyclone that struck Myanmar (as French Foreign Minister Bernard Kouchner did) is that it may do more harm than good – military interventions are never surgical, and the intervention may unleash a backlash by the military junta, especially when the troops have gone home. That does not mean that the world should stand idly by. Indeed there is a case to be made that the human rights’ record of the military junta is reason enough to invoke R2P and certainly, if they are intentionally preventing aid from reaching, especially, specific ethnic groups, the case is much stronger. But military interventions as Australia knows are fraught with difficulties. For aid workers on the ground, military interventions, however well meaning, often jeopardize, even undo their work. And so, if a military intervention cannot be sent (because it is neither the right course of action at this time nor is it likely troops will be made available) then the one thing those of us living in prosperous countries like Australia and Canada can do is accept these refugees with open arms.