Responsibility to Protect (R2P): Catch All

[MikeF]

"You ask me about what is called imperialism. Well, I have formed views about that question. I am at the disadvantage of not knowing whether our people are for or against spreading themselves over the face of the globe. I should be sorry if they are, for I don't think that it is wise or a necessary development. As to China, I quite approve of our Government's action in getting free of that complication. They are withdrawing, I understand, having done what they wanted. That is quite right. We have no more business in China than in any other country that is not ours. There is the case of the Philippines. I have tried hard, and yet I cannot for the life of me comprehend how we got into that mess. Perhaps we could not have avoided it -- perhaps it was inevitable that we should come to be fighting the natives of those islands -- but I cannot understand it, and have never been able to get at the bottom of the origin of our antagonism to the natives. I thought we should act as their protector -- not try to get them under our heel. We were to relieve them from Spanish tyranny to enable them to set up a government of their own, and we were to stand by and see that it got a fair trial. It was not to be a government according to our ideas, but a government that represented the feeling of the majority of the Filipinos, a government according to Filipino ideas. That would have been a worthy mission for the United States. But now -- why, we have got into a mess, a quagmire from which each fresh step renders the difficulty of extrication immensely greater. I'm sure I wish I could see what we were getting out of it, and all it means to us as a nation."

Autobiography of Mark Twain

[jmm99]

As LawVol correctly points out, the modern genesis of R2P at the UN level is found in 2005's World Summit Outcome Document, Paragraphs 138-139:

Heads of state and government agreed to the following text on the Responsibility to Protect in the Outcome Document of the High-level Plenary Meeting of the General Assembly in September 2005

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 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 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 and to assisting those which are under stress before crises and conflicts break out.

This statement is notable for placing the obligation on each individual state to prevent the various "badnesses"; and then affirming Chapter VII "Peace Enforcement" powers in the UN if a state fails that obligation. While the statement does not explicitly cover Violent Non-State Actors (acting in a failed state, for example), the failure of the failed state to prevent their "war crimes" would be adequate grounds for the UN to act within the terms of the statement.

The R2P arena is marked by Politik (politics and policy); and cannot be validly claimed (in my opinion, obviously) as an area governed by a determinative international law. That came home to me in connection with our (USAian) Libyan venture based on the UN Resolution and Presidential "Non-War Powers". While a number of voices shouted non-compliance with the War Powers Resolution and outright unconstitutionality, the salient fact was that Congress took no action opposing the President's actions. Thus, the President did not act illegally (since Congress did not act at all). That was an object lesson (some might say abject lesson) in what the Supreme Court has called "political questions" - and therefore, outside of the legal realm.

Part 2 will cover the 2001 "Canadian" Report, which is the intellectual basis for the R2P concept. Part 3 will covern some of the international organizations which are involved in the lobbying effort for R2P.

.... end part 1

[jmm99]

2001's The Responsibility to Protect (Report of the International Commission on Intervention and State Sovereignty), provides the policy and political meat behind the 2005 UN statement:

This report is about the so-called “right of humanitarian intervention”: the question of when, if ever, it is appropriate for states to take coercive – and in particular military – action, against another state for the purpose of protecting people at risk in that other state. ....

The Policy Challenge

External military intervention for human protection purposes has been controversial both when it has happened – as in Somalia, Bosnia and Kosovo – and when it has failed to happen, as in Rwanda. For some the new activism has been a long overdue internationalization of the human conscience; for others it has been an alarming breach of an international state order dependent on the sovereignty of states and the inviolability of their territory. For some, again, the only real issue is ensuring that coercive interventions are effective; for others, questions about legality, process and the possible misuse of precedent loom much larger.
...
At the United Nations General Assembly in 1999, and again in 2000, Secretary-General Kofi Annan made compelling pleas to the international community to try to find, once and for all, a new consensus on how to approach these issues, to “forge unity” around the basic questions of principle and process involved. He posed the central question starkly and directly:

…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 affect every precept of our common humanity?

It was in response to this challenge that the Government of Canada, together with a group of major foundations, announced at the General Assembly in September 2000 the establishment of the International Commission on Intervention and State Sovereignty (ICISS). Our Commission was asked to wrestle with the whole range of questions – legal, moral, operational and political – rolled up in this debate, to consult with the widest possible range of opinion around the world, and to bring back a report that would help the Secretary-General and everyone else find some new common ground.

So, blame the Canucks !

The general policy principles are:

The Responsibility to Protect: Core Principles

(1) Basic Principles

A. State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself.

B. 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.

(2) Foundations

The foundations of the responsibility to protect, as a guiding principle for the international community of states, lie in:

A. obligations inherent in the concept of sovereignty;

B. the responsibility of the Security Council, under Article 24 of the UN Charter, for the maintenance of international peace and security;

C. specific legal obligations under human rights and human protection declarations, covenants and treaties, international humanitarian law and national law;

D. the developing practice of states, regional organizations and the Security Council itself.

(3) Elements

The responsibility to protect embraces three specific responsibilities:

A. The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk.

B. The responsibility to react: to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention.

C. The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.

(4) Priorities

A. Prevention is the single most important dimension of the responsibility to protect: prevention options should always be exhausted before intervention is contemplated, and more commitment and resources must be devoted to it.

B. The exercise of the responsibility to both prevent and react should always involve less intrusive and coercive measures being considered before more coercive and intrusive ones are applied.

So much for the standard "last resort" lead-in. Now, the military principles:

The Responsibility to Protect: Principles for Military Intervention

(1) The Just Cause Threshold

Military intervention for human protection purposes is an exceptional and extraordinary measure. To be warranted, there must be 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.

(2) The Precautionary Principles

A. Right intention: The primary purpose of the intervention, whatever other motives intervening states may have, must be to halt or avert human suffering. Right intention is better assured with multilateral operations, clearly supported by regional opinion and the victims concerned.

B. Last resort: Military intervention can only be justified when every non-military option for the prevention or peaceful resolution of the crisis has been explored, with reasonable grounds for believing lesser measures would not have succeeded.

C. Proportional means: The scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the defined human protection objective.

D. Reasonable prospects: There must be a reasonable chance of success in halting or averting the suffering which has justified the intervention, with the consequences of action not likely to be worse than the consequences of inaction.

(3) Right Authority

A. 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.

B. 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.

C. The Security Council should deal promptly with any request for authority to intervene where there are allegations of large scale loss of human life or ethnic cleansing. It should in this context seek adequate verification of facts or conditions on the ground that might support a military intervention.

D. 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.

E. If the Security Council rejects a proposal or fails to deal with it in a reasonable time, alternative options are:

I. consideration of the matter by the General Assembly in Emergency Special Session under the “Uniting for Peace” procedure; and

II. action within area of jurisdiction by regional or sub-regional organizations under Chapter VIII of the Charter, subject to their seeking subsequent authorization from the Security Council.

F. The Security Council should take into account in all its deliberations that, if it fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation – and that the stature and credibility of the United Nations may suffer thereby.

(4) Operational Principles

A. Clear objectives; clear and unambiguous mandate at all times; and resources to match.

B. Common military approach among involved partners; unity of command; clear and unequivocal communications and chain of command.

C. Acceptance of limitations, incrementalism and gradualism in the application of force, the objective being protection of a population, not defeat of a state.

D. Rules of engagement which fit the operational concept; are precise; reflect the principle of proportionality; and involve total adherence to international humanitarian law.

E. Acceptance that force protection cannot become the principal objective.

F. Maximum possible coordination with humanitarian organizations.

The remaining 90 pages set out the authors' justification for these principles.

... end part 2

[jmm99]

R2P has its own mentor, the International Coalition for the Responsibility to Protect, c/o World Federalist Movement - Institute for Global Policy, 708 Third Avenue, 24th Floor, New York, NY 10017.

The World Federalist Movement & its Institute for Global Policy are well known sponsers and lobbyists for a number of programs (I'm more familiar with their Coalition for the International Criminal Court):

WFM-IGP Programs

Coalition for the International Criminal Court

International Coalition for the Responsibility to Protect

International Democratic Governance

Global Governance Roundups

The focus is obviously on governance - internationalistic, rather than nationalistic.

The International Coalition for the Responsibility to Protect is a broad front organization (going beyond WFM-IGP), as one gathers from its Membership List; and its push for NGOs to join.

And, of course, R2P has its proponents in organizations that are not members of the ICR2P - e.g., USIP; as to which, this article fairly reflects that group's general approval of R2P principles, Libya and the “Responsibility to Protect” (1 Mar 2011).

... end part 3

Regards

Mike

[MikeF]

Can R2P become the thread that draws us into future conflict much like the treaties between various states brought on WWI with the assassination of Archduke Franz Ferdinand of Austria?

[jmm99]

as I tried to point out in the titles of each of my three posts. What we have is a question of Politik (politics and policy in the CvC sense). Once, Politik makes up its mind, the law and the military will follow (as instruments of policy). No doubt that one could come up with factual situations where legal or military constraints limit Politik. However, in R2P, the legal and military constraints are not usually determinative - cuz, in both institutions, there are such a wide range of choices that are within the doctrinal frameworks material to "Peace Enforcement".

Now, to the real Politik issue you raise -

Can R2P become the thread that draws us into future conflict much like the treaties between various states brought on WWI with the assassination of Archduke Franz Ferdinand of Austria?

Of course, it can - cuz UN Chapter VII Peace Enforcement involves real armed conflict. The first UN Chapter VII PE action of any consequence was the Korean War. At several points, that armed conflict could have developed into a much wider conventional conflict (e.g., involving Taiwan, Japan and China), or even into a nuclear WWIII. The participants made policy choices that foreclosed those escalations, but they certainly were "legal" options.

Now, it may well happen that a UN member elects not to go along with Chapter VII PE based on R2P. E.g., Germany in the recent Libyan venture - and, of course, Russia and China, as further removed spectators. The UN Charter (and all the associated treaties, compacts and resolutions) are indeterminate enough to allow disassociation with what the rest of the pack decides to do. It does require a certain amount of national will to do that.

In fact, the various pre-WWI treaties allowed wiggle room for states to decline participation in the resulting bloodbath. So does Article 5 of NATO contain the same wiggle room if you read it close ("... such action as it deems necessary, including the use of armed force ..."):

If the conditions are met for the application of Article 5, NATO Allies will decide how to assist the United States. (Many Allies have clearly offered emergency assistance). Each Ally is obliged to assist the United States by taking forward, individually and in concert with other Allies, such action as it deems necessary. This is an individual obligation on each Ally and each Ally is responsible for determining what it deems necessary in these particular circumstances.

Given that kind of indeterminacy, I don't see law as especially "material" (that is, as carrying much real weight) in the R2P arena - although it seems "relevant" (that is, it must be of some probative worth because some lawyers are always asked to write a justification for whatever decision is made by their policy-making masters ).

Hey Mike, good to be talking to you again.

Regards

Mike

[motorfirebox]

Trying to set a "responsibility to protect" for ourselves, in the sense that this term is generally used--that is, basic world police stuff--is dumb in the extreme, less in terms of the actual actions that fall under this umbrella than in the overall context. Responsibility To Protect? How about, first, a Responsibility To Not Hork Things Up Completely Because We See An Immediate Benefit And Don't Give Much Though To The Long Term. How about acting on our principles more often, so that we're not faced with a choice between supporting a genuine democratic movement and supporting the dictatorship which we set up that they're revolting against!

I recognize it's not always that simple ("never" is, after all, a set of "not always"). But we can try a lot harder to do no harm before we set about trying to actively right perceived wrongs.

[LawVol]

The R2P arena is marked by Politik (politics and policy); and cannot be validly claimed (in my opinion, obviously) as an area governed by a determinative international law. That came home to me in connection with our (USAian) Libyan venture based on the UN Resolution and Presidential "Non-War Powers". While a number of voices shouted non-compliance with the War Powers Resolution and outright unconstitutionality, the salient fact was that Congress took no action opposing the President's actions. Thus, the President did not act illegally (since Congress did not act at all).

Unlike many others, but apparently in agreement with you, I also did not focus upon the "Constitutional question." However, I did see an international law issue. The Charter gives the UNSC the authority to act in cases of breach of international peace. Thus, action to eject Iraq from Kuwait had the sanction of international law. Although the UNSC did indeed act with respect to Libya, there use of this same clause was without legal justification. International law requires that a breach of peace cross international borders. Since that did not occur with respect to Libya, the UNSC had no authority to act. The question here is whether R2P has now expanded that authority.

Part 2: in looking at the Canadian input on R2P I see something broader than that set forth in the UN material. The UN material specifically sets forth genocide, war crimes, ethnic cleansing and crimes against humanity as a precursor to action. However, the Canadian material is worded a little broader. It seems to indicate authority for preemptive or preventive action, which doesn't seem to be the case with the UN wording. I believe the Canadian stuff came first, so one could look at the UN material as curtailing the Canadian position. Even so, the two positions demonstrate the inherent problems with R2P. Again, the Libyan action would indicate a much more liberal interpretation of R2P.

Of course, I may still have fog on the brain as I just completed the US-Kuwait-Bagram transient process from R&R. However, I am seriously trying to understand this R2P issue and its potential effects. You have a better grasp of these issues than I so I look forward to your thoughts.

[MikeF]

Mike- Great talking to you too.

Of course, I may still have fog on the brain as I just completed the US-Kuwait-Bagram transient process from R&R. However, I am seriously trying to understand this R2P issue and its potential effects. You have a better grasp of these issues than I so I look forward to your thoughts.

LawVol, run this thing out through your head and think about how a non-benevolent actor could manipulate the system of R2P particularly in a time of economic or regional crisis. The more I thought about it, the more this policy scared the crap out of me.

[LawVol]

MikeF: you are absolutely correct. Although I didn't discuss it in detail in my initial post, this is what I was referring to when I spoke of R2P being a tool for the developed world. Particularly with regard to a broadened interpretation of R2P, as with the Canadian documents, I can easily foresee R2P as an excuse for action. Maybe a Russian-Georgian conflict part two based on perceived "crimes" against ethnic Russians in Georgia? I'm sure you can imagine other examples. While the moral underpinnings of the doctrine may seem worthwhile, the doctrine itself leave too much open to interpretation and misuse. Of course misuse is in the eye of the beholder, so criticism can be made of nearly any intervention I guess.

[MikeF]

MikeF: you are absolutely correct. Although I didn't discuss it in detail in my initial post, this is what I was referring to when I spoke of R2P being a tool for the developed world. Particularly with regard to a broadened interpretation of R2P, as with the Canadian documents, I can easily foresee R2P as an excuse for action. Maybe a Russian-Georgian conflict part two based on perceived "crimes" against ethnic Russians in Georgia? I'm sure you can imagine other examples. While the moral underpinnings of the doctrine may seem worthwhile, the doctrine itself leave too much open to interpretation and misuse. Of course misuse is in the eye of the beholder, so criticism can be made of nearly any intervention I guess.

Well, the SWJ team here (JMM, Ken White, Steve Blair, and many others) have been helping me for the past four years really sorting through things, and I wanted to find reoccurring patterns throughout history that reflect today. Initially, I narrowed it down to 1866-1910, but I am now convinced that we are literally in a period that reflects the beginning of the twentieth century-small protracted wars of limited ends, contested global hegemony, economic shifts with the rise of the middle class and the Industrial Revolution, and the Rise of the West with an nascent American Empire blossoming. Theodore Roosevelt rose to the challenges of the day by building the Panama Canal and sailing the Great White Fleet.

As we (US, UK, and everyone else) move past Iraq and start to figure out how we're going to talk to each other, interact, trade, etc, in the future, we must understand what happened last time, but we cannot be bound by feelings of guilt either. We must move forward wisely.

This will take leadership.

When design theory was first introduced in the late 1960's, it came from systems thinking, and one rule that has since gone away, but has always stuck in my mind is

The planner has no right to be wrong.

[MikeF]

From a mentor

Mike, the future is less likely to be what "we" want and more of what others demand. Neither of these solutions, which appear to be two ends of a continuum of US intervention policies, appear to be workable from my perspective. Policy is likely to be grounded in context and the worldwide context is very different. The US will most likely be pulling out of certain regions, developing coalitions in others, and pursuing some unilateral interventions (broadly defined to include MOOTW) in others. We also are in Age where grassroots movements worldwide are toppling oligarchy. What will replace them is uncertain, but it will be a very different world and very difficult to make unilateral policy. The US not longer has the ability to "control" what is going on although our we will continue to try to shape things. The defense establishment (and I am including politician-hawks) needs to understand the limits of military power; my guess is that they haven't learned the lessons of Iraq and Afghanistan. If they drag us into more combat into Muslim countries or with China, we are done for

[Ken White]

The planner has no right to be wrong.

He or she often will be...