“Those at the vanguard of human rights concerns, however, remained undaunted by such failures and the criticisms. Indeed, some of its main spokesmen of ‘external intervention’, while refuting their critics with seemingly plausible quasi-legal rhetoric, attributed the failures either to operational obstacles within the relevant institutions or to the lack of resolve on the part of the States that possessed the capacity to sponsor effective intervention.”___________________
by Prof. G H Peiris
(April 26, Kandy, Sri Lanka Guardian) The proliferation of UN-sanctioned interventions in ‘internal conflicts’ since the late 1980s , though facilitated largely by the concurrent easing of super-power rivalry, was also an outcome of a distinct trend of increasing global concern on protection and promotion of human rights in the context of the contemporary tide of revulsion against genocidal atrocities in conflict situations such as those of Somalia, Rwanda, Srebrenica and Kosovo. These interventions however generated much controversy, not so much from perspectives of their moral propriety, but on grounds of both the failure of such initiatives to fulfil the expectations with which they were launched, as well as the extent to which the interventions violated the principle of State sovereignty enshrined in the UN Charter and other instruments pertaining to international relations.
Those at the vanguard of human rights concerns, however, remained undaunted by such failures and the criticisms. Indeed, some of its main spokesmen of ‘external intervention’, while refuting their critics with seemingly plausible quasi-legal rhetoric, attributed the failures either to operational obstacles within the relevant institutions or to the lack of resolve on the part of the States that possessed the capacity to sponsor effective intervention. They asserted further that, at least in the conflict venues of Bosnia, Rwanda, Kosovo, Liberia and Sierra Leone, the atrocities perpetrated on civilian populations would have persisted, if not aggravated, had it not been for the multi-national interventions undertaken, albeit without (or with only tardy/perfunctory) backing of the UN Security Council. More significantly, it has also been argued that the Security Council Resolutions 827 of 1993 (for Yugoslavia) and 955 of 1994 (for Rwanda) on the basis of which international courts were established to adjudicate on charges of war crimes and related atrocities represented a major reinforcement of the axiom that ‘national sovereignty’ is conditional on the willingness/capacity of a nation-state to protect its people from the more barbaric violations of human rights.
It was probably the acquiescence of the international community in the face of the successfully completed or ongoing prosecutions of Jean Kambanda and Jean-Paul Akayesu of Rwanda, and Slobodan Milošević, Radovan Karadzić, Ratco Mladić and many others of former Yugoslavia, by the ad hoc UN tribunals, and, then, the approval granted by the UN General Assembly in July 1998 for the setting up of a permanent ‘International Court’ to try similar cases, that prompted Secretary-General Kofi Annan to declare: “State frontiers should no longer be seen as a watertight protection for war criminals and mass murderers”. Annan elaborated this idea in his address to the 54 th Session of the UN General Assembly in September 1999, envisioning for the new millennium new paradigms of world-wide protection of human rights.
The ‘Right to Intervene’ (as distinct from ‘Responsibility to Protect’) as exercised during the last few decades of the 20 th century either through the Security Council or by regional associations of States such as the NATO and the ECOWAS (Economic Community of West African States) or by individual nation-states such as the United States, Russia or India, fell short not only of expectations but also of the ideals being espoused by some of the main exponents of ‘coercive intervention’ to counteract gross violations of human rights in intra-state conflicts. From genuinely humanitarian perspectives, the barely concealed national self-interest that featured most of these interventions was also a source of embarrassment. It is this dissatisfaction, rather than the claimed response to the impassioned plea by Kofi Annan in September 1999 that triggered off Canada’s initiative an year later to establish an ‘International Commission on Intervention and State Sovereignty’ (ICISS), entrusted with the task of probing the “entire range of legal, moral, operational and political considerations” pertaining to the responsibility of States to protect victims of serious violations of human rights.
Since it was the ICISS that laid the foundations for the concept of ‘Responsibility to Protect’ (‘R2P’) it is necessary to take note of certain features pertaining to its composition and its record of work. The ICISS consisted of 12 members, all of whom were appointed by the government of Canada. It was co-chaired by Gareth Evans (Chief Executive of the ‘International Crisis Group’, one of the most ardent advocates of ‘intervention’) and Mohamed Sahnoon (a UN diplomat from Algeria). Only two of its members were from States that could face (however farfetched) the prospect of a future external interference with their rights of sovereignty ( Philippines and Guatemala). Likewise, the ‘Advisory Board of the ICISS’, also appointed by the Canadian government, consisted of 16 members, only 4 of whom were from States that could become vulnerable to coercive external intervention (Venezuela, Chile, Palestine and Thailand). The ICISS, in the course of preparation of its report, did have a series of ‘round-table consultations’ with handpicked invitees in about ten host countries of which, significantly, only Mozambique could, by any stretch of imagination, figure as a future target of ‘external intervention’. [1] The ICISS report is also likely have had expert inputs from scholars and diplomats like Thomas G Weiss, Don Hubert, Francis Deng and Loise Arbour. Yet, for all that, the overall impression conveyed by the information available on the process of formulation of the ICISS report submitted to the UN is that it was almost exclusively a product of a small group of like-minded persons (highly distinguished, no doubt) who figure at the forefront of the intensifying campaign for external humanitarian intervention in intrastate conflicts. This impression finds unintended confirmation in the solemn preamble to the report according to which … “We (the ICISS) prefer to talk not of a right to intervene but a responsibility to protect”.
According to those at the vanguard of the doctrine of ‘R2P’, the idea that sovereignty of a given State is conditional on its government’s willingness/capacity to ensure the protection of human rights within its domain is a paradigm which ‘R2P’ shares with what they perceive as the already well established ‘Right to Intervene’. They claim, however, that, unlike the right to intervene (the exercise of which is discretionary, and has always remained “the prerogative of the intervener”), the responsibility to protect is a mandatory duty vested upon all States that have the capacity to provide the required protection of human rights, the non-performance of which constitutes a violation of “an undisputed obligation of international law”.
Other distinctive features of ‘R2P’, as postulated by its exponents may be summarised as follows: [2] (Unlike the concept of ‘Right to Intervene’) the R2P “squarely embraces the victims point of view rather than questionable State-centred motivations”.
The R2P entails a “continuum” of intervention involving (a) prevention of human rights violation, (b) reaction (in the event of failure to prevent), and (c) rebuild (presumably, safeguards against future violations), employing “early warning”, “diplomatic pressure”, “coercive measures” including military intervention, legal action against perpetrators of atrocities, and providing incentives to States for protecting human rights.
Since the capacity of a State (or a group of States) to intervene in the prevention of gross human rights violations in another State depends on the “geographical distance” from the scene of events (i.e. the venue of such violations), the neighbouring States that possess the capacity to intervene should carry a relatively greater ‘responsibility to protect’. This, however, does not reduce the obligation of the other States to intervene in the protection of people from rights violations, particularly those represented in the UN Security Council.
Formulated as a moral obligation of the international community to protect, with recourse to various forms of coercive intervention across State borders, innocent victims of massive atrocities, there could be no serious objection to ‘R2P’, provided the intervener (a State or a group of States including the dominant powers of the world assembly) is not motivated primarily by self-interest and also has a reasonably clear record of ‘human protection’ within their own countries. Such a moral obligation is, in fact, no more and no less than, say, the responsibility to ‘protect the environment’ or ‘preserve the cultural heritage of mankind’. The problem, however, lies in the fact that what is being claimed for this concept extends well beyond moral imperatives and, consequent upon such extravagant claims, raises issues (including those pertaining to morality) that are even more harmful to humanity than inaction in the face of the more barbaric forms of rights violations.
One comes across in the writings on the concept of the ‘R2P’ several assertions concerning its ‘legal’ status in relations between states. One such claim is that the ‘R2P’ as formulated by the ICISS has been endorsed by the UN General Assembly when it adopted the resolution titled ‘60/1. 2005 World Summit Outcome’ (a.k.a. ‘Outcome Document’). Placed under detail scrutiny, however, one finds certain incongruities in this claim. There was, first, the intense controversy generated by the ICISS Report among the UN membership in which, as stated by Weiss,[3] the strongest reservations were expressed by the United States (potentially, the most powerful coercive intervener) and those of the ‘Non-Aligned Movement’ (the largest grouping of potential target-States of external intervention). Some significance has also to be attributed to the fact that, whereas the ICISS Report refers throughout to “The Responsibility to Protect” (with capitals that denotes the title of a multifaceted concept), Articles 138 and 139 of the ‘Outcome Document’ (which are often cited as evidence of adoption of that concept in its totality by the general assembly) refers simply to a function of “responsibility of each individual State to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity” (Article 138) and of “a responsibility (of the international community) to use appropriate diplomatic, humanitarian and other peaceful means … to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity … (and be prepared) to take collective action in a timely and decisive manner … should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity”. This, surely, is a watered-down version of the ICISS recommendations – one which represent, inter alia, an implicit rejection of some the specificities pertaining to intervention including the so-called “Principles of Military Intervention” enunciated by the ICISS. It should also be stressed that the coercive intervention envisaged in Article 139 remains subject to the qualifications and constraints implicit in Article 5 of the ‘Outcome Document’ which reads as follows:
“We rededicate ourselves to support all efforts to uphold the sovereign equality of all States, respect their territorial integrity and political independence, to refrain in our international relations from the threat or use of force in any manner inconsistent with the purposes and principles of the United Nations …”
Moreover, as pointed out by Welsh, [4] the substance of Articles 138 and 139 are not significantly different from the existing pledges relating to cross-border intervention for ‘human protection’ by groups of nation-states such as those of the ‘Constitutive Act of the African Union’ to which representatives of 53 member States of the Organisation of African Unity had become signatories in July 2000. From the viewpoint of gaining an understanding of what the ‘R2P’ genuinely represents, it is also vitally important to note that the responsibilities of the UN as specified in Chapters VI, VII and VIII of its Charter of 1945 are not different in substance from those found in the ‘Outcome Document’ of 2005. This, in turn, implies that there is no grounds whatever to the claim that the latter signified the formal acceptance by the UN of a new paradigmatic framework of coercive intervention as postulated in the concept of ‘R2P’.[5]
The claim by Loise Arbour and others that the ‘R2P’ is “anchored in existing law”, when placed under scrutiny, also requires considerable qualification. The “existing law” specifically referred to by Arbour is the ‘Convention on the Prevention and Punishment of the Crime of Genocide’ adopted by the UN in 1948. The essence of Arbour’s contention is that, since the ‘Genocide Convention’ places on the international community the obligation of “prevention and punishment of genocide”, the endorsement of the ‘R2P’ by the UN through the ‘Outcome Document’ of 2005 – whether there was such an endorsement, as shown above, is a debatable – implies that the same obligation extends to the other atrocities of war crimes, ethnic cleansing and crimes against humanity. In her own words:
“The responsibility to protect norm, therefore, reiterates an existing legal obligation (under the ‘Genocide Convention’). It is only reasonable to presume that it is the same kind of obligation that the Outcome Document was referring to in relation to war crimes and crimes against humanity, where it articulates the scope of responsibility to protect”.
Arbour asserts further that the interpretation of the related laws by the International Court of Justice in the trials that emerged from the Yugoslav civil wars has established the principle that the failure to fulfil the obligation of prevention and punishment is itself (to quote) “would carry legal consequences”. In what looks like a daring bid to browbeat the UN Security Council into refraining from opposing coercive intervention as contemplated in ‘R2P’ Arbour argues as follows:
“The members of the Security Council, particularly the Permanent Five Members (P5), hold an even heavier responsibility than other States to ensure the protection of civilians everywhere. If their responsibility is to be measured in accordance with the International Court of Justice’s analysis, it would seem logical to assume that a failure to act (against the crimes referred to in ‘R2P’) could carry legal consequences and even more so when the exercise or a threat of a veto would block action that is deemed necessary by other members to avert genocide, or crimes against humanity”.
Does this represent a coercive intervention by the UN High-Commissioner for Human Rights on the Security Council by the UN High-Commissioner on Human Rights? What we need to add in order to highlight this strange ‘logic’ is a brief comment on the restricted reach of the ‘Genocide Convention’ from which Arbour’s propositions are said to be drawn. The United States ratified the convention only in 1988 (40 year after its adoption by the UN), and that too, subject to a series of “reservations” and “understandings”. Qualifications were also attached to its ratifications by several other countries such as Bahrain, Bangladesh, India, Malaysia, Philippines, Singapore, Vietnam, Yemen and Yugoslavia. Moreover, the convention, as formulated in 1948, excluded from the definition of ‘genocide’ the killing of members of a social class, members of a political or ideological group and ‘cultural’ killings.
One of the main problems of exercising either the ‘Right to Intervention’ or the ‘Responsibility to Protect’ pertains to the authenticity of the information upon which a related course of action could be based. That, typically, ‘internal conflicts’ are highly complex and are seldom simple confrontations between ‘good guys’ and ‘bad guys’, is perhaps too banal for specific mention. Such bipolarity entirely free of discordances was not seen even in the venues of mass atrocities such as Bosnia, Rwanda or Somalia. Further, the groups at mutual conflict in several major ‘civil wars’ continue to be nurtured by massive international networks of support including well organised and highly sophisticated campaigns of propaganda and disinformation. Quite often, all parties at conflict violate human rights, and all parties often attempt to distort or conceal information. What could be even more problematic is that, even on simple aspects of a conflict which need not be misunderstood if sufficient care is exercised in the gathering of information, it is not infrequent for observers from outside to make commit major errors. A classic example of how even a person of impeccable scholarly and diplomatic repute who has, in fact, made several field visits to Sri Lanka could fall victim to disinformation even on easily verifiable matters of demography is found in a recent volume co-edited by Francis Deng (the renowned expert on ‘Internal Displacement’, tremendously influential in human rights affairs of the UN) according to which “…almost 400,000 Sinhalese were settled in the North (of Sri Lanka) by 1971”. The literature on the Sri Lankan conflict is replete with this type of blatant distortion and falsehood, “the high-speed communications and sophisticated fact-finding technologies” referred to by Arbour notwithstanding.
To Loise Arbour the problem of authenticity of information is of little consequence. She pre-empts a possible criticism of ‘R2P’ based on the difficulties of acquiring an objective and accurate understanding of a conflict configuration prior to intervention in the following terms.
“Without overlooking the notion of presumption of innocence and staying within the context of preventive action, it is fair to say that perpetrators always seek to obfuscate reality, to discredit both the information that points to their culpability and those who provide it, routinely demanding further proof. They question the bona fide credentials of those who accuse them, as well as the veracity of their sources. They stall or deflect action and will continue to have every incentive to rely on such tactics in the future. Buying time and spreading misinformation is, after all, in the perpetrator’s own self-interest. But from the Holocaust, to the Rwanda genocide, to crimes in Darfur, it has never been a lack of credible information that has prevented States from taking action. Moreover, avoiding action to avert or stop atrocities by hiding behind claims of ignorance or of a lack of unassailable evidence has become not only implausible but altogether preposterous in an age of high-speed communications and sophisticated fact-finding technologies.”
That Louise Arbour’s campaign for the concept of the ‘R2P’ (to which she refers repeatedly as “the norm”) is so surprisingly deficient in objectivity and clarity of thought is illustrated further by her display of sleight-of-hand in meeting what, in terms of geopolitical realities, constitutes one of the most significant objections to the ‘R2P’ in its ICISS formulations. Having presented the essence of this criticism as follows:
“However, detractors came forward even before the norm (i.e. R2P) could be tested. These critics saw in the norm yet another incarnation of moral imperialism. Concerns over the rationale of ‘regime change’ that the US and its allies employed to justify the war in Iraq only reinforced their suspicions. And once again the custodians of the orthodoxy of non-interference warned that the concept of responsibility to protect could be manipulated to become the license for the sole superpower to intervene whenever Washington sees fit and even if much of the world begs to differ;
the only response she makes to the criticism is to say: “Yet recognition of the norm’s (sic.) inherent merits came in 2005 when the World Summit endorsed the concept in a unanimous statement by world leaders”. Where is the answer to the detractors?
--------------------------------------------------------------------------------
[1] The other venues of such ‘consultation’ were Ottawa, Geneva, London, Washington DC, Santiago, Cairo, Paris, Delhi, Beijing and St. Petersburg.
[2] Throughout the recent years Ms Louise Arbour, the UN High-Commissioner for Human Rights has figured more prominently than any other among the ‘exponents’ we refer to here. Among the other ardent campaigners for ‘R2P’ were/are Gareth Evans, Francis Deng, Roberta Cohen, Samantha Power, Thomas G Weiss and, of course, Kofi Annan. The extracts cited here (except where other sources are acknowledged) are from Arbour’s ‘Responsibility to Protect as a Duty of Care in International Law and Practice’ United Nations Press Release, November 2007.
[3] Thomas G Weiss (2007) Humanitarian Intervention: Ideas in Action, Polity:116-117
[4] Jennifer M Welsh (2007) Humanitarian Intervention and International Relations, OUP: 187
[5] Arbour (op. cit.: 5) has indeed categorically made such a claim.
- Sri Lanka Guardian
Post a Comment