by Prof. G. H. Peiris
(June 30, Kandy, Sri Lanka Guardian) The doctrine of ‘Responsibility to Protect’ (often code-named ‘R2P’), according to many of its advocates, refers to an obligation of the community of nations to protect victims of the more barbaric forms of human rights violations – specifically, genocide, war crimes, crimes against humanity and ethnic cleansing. The primary responsibility of such protection within the confines of a State, the ‘R2P’ stipulates, should be borne by the government of that state. Where the government is unable or unwilling to discharge that responsibility it must be borne by other States that have the required capacity, collectively or individually, and where necessary, even with recourse to armed intervention.
The thematic focus of my presentation today is that, although the initial formulation of the ‘R2P’ may have been impelled by a genuine humanitarian concern for preventing atrocities inflicted on non-combatants in the course of inter-state or intra-state conflict, the subsequent campaign by its protagonists for its elevation to the status of an officially recognised "norm" governing international relations has exposed its potential of being converted to an instrument for the promotion of interests of the major global powers – "humanitarian imperialism", as postulated by Noam Chomsky (2008) – and to imperil the very existence of weaker States.
Background to the Emergence of ‘R2P’ Thought
External intervention in intra-state conflicts featured by gross violations of human rights, despite the infringement of principles of State sovereignty which such intervention invariably entails, has often been justified or rationalised with reference to the concept of the ‘Right to Intervene’ which is deemed to be founded upon certain principles enshrined in the ‘United Nations Charter’ of 1945, the ‘Universal Declaration of Human Rights’ adopted by the UN General Assembly in 1948, and in other instruments pertaining to both relations between Nation-States as well as protection of human rights. Thus, despite the incongruities between such external intervention and the norms of State sovereignty, the ‘Right to Intervene’ has been exercised from time to time in the latter half of the 20th century either through the UN Security Council (Table 1) or, less frequently, by regional associations of States such as the North Atlantic Treaty Organisation and the European Community (in their interventions in former Yugoslavia), the African Union (in Darfur), and the Economic Community of West African States (in Sierra Leone, Guinea Bissau, Côte d’Ivoire and Liberia; and even by individual States such as the United States, Russia, Britain and India on an unilateral basis.
Based on Chantal de Jonge Oudraat, ‘The United Nations and Internal Conflict’, in Michael E Brown ed. (1996) The International Dimensions of Internal Conflict, MIT Press: 489-536
However, the problem, especially from the viewpoint of those at the forefront of promoting Security Council-sponsored external intervention for humanitarian purposes was that such intervention involved excessive procedural delays, the related procedures often generating intense dispute and dissention not only within the ‘UN Commission on Human Rights’ but also among the general membership of the UN. In the majority of such interventions, moreover, there were two adverse consequences – the inability of the Security Council to muster adequate resources and collateral support for implementing its resolutions (except in the form of dispatch of ‘Special Envoys’ or ‘Fact-finding Missions’ to venues of conflict); and, even more importantly, the frequent failure of such interventions to achieve their objectives due, in part, to deficiencies in the understanding of the complexity of most conflicts and, in part, to the lack of cohesiveness that featured the modalities of intervention. In conflagrations that were fuelled mainly by the lingering effects of super-power rivalry – for example, those of El Salvador, Nicaragua, Mozambique and Namibia – UN interventions did contribute to the diffusion of tensions, although the basic cause for the reduction of violence was dissipation of the Cold War impulses. But the more general experience, particularly in the early 1990s, was that UN interventions resulted in aggravating and/or prolonging conflict, worsening human rights violations, and engendering resentment among member States regarding the duplicity of the major western powers, notably the United States, in promoting, avoiding or undermining intervention, depending on the ‘self-interest’ dimension in the different conflict situations. These negative features were vividly displayed in Sudan, Burundi, Rwanda, Liberia, Somalia, Cambodia, Iraq (Gulf War), Haiti, and, to a large extent, Serbia & Montenegro, Bosnia and Croatia.
What provided the background to the emergence of ‘R2P’ was the increasing frequency of external coercive interventions in intra-state conflicts witnessed since the late 1980s (Table 1), and their failure to fulfil the expectations with which they were undertaken, especially by way of preventing genocidal atrocities in conflicts such as those of Sudan, Somalia, Rwanda, and the successor States of Yugoslavia.
The ‘R2P’ concept in its embryonic form has been traced to the study on conflict resolution in Africa led by Francis Deng (1996) according to which State sovereignty entails the mandatory responsibility of protecting the citizen from the more gruesome violations of human rights. The groundwork for ‘R2P’ had, of course, already been laid by several earlier UN declarations, the foremost among them being, (a) the ‘Universal Declaration of Human Rights’ and the ‘Genocide Convention’ adopted by the UN General Assembly in 1948; and (b) the ‘Covenants’ on Economic, Social and Cultural Rights and on Civil and Political Rights’ adopted in 1966, along with their ‘Optional Protocols’ – one empowering the ‘UN Human Rights Committee’ established under the provisions of the Covenants to entertain direct submissions from individuals on alleged human rights violations, and the other imposing restrictions on the death penalty.Throughout the Cold War era, even during the heyday of decolonisation in the 1950s and the ‘60s, the extent to which the rights of individuals as postulated by the ‘Universal Declaration’ could legitimise anti-systemic or secessionist revolt ("liberation movements") within sovereign nation-states hardly ever figured at the forefront of issues discussed, debated and acted upon by the UN. Thus, the two ‘Covenants’ of 1966 were essentially elaborations of the ‘Universal Declaration’, albeit with an enhanced focus on international collaboration in efforts at promoting political, economic, social and cultural rights. From evolutionary perspectives on UN involvement in human rights, however, the ‘Covenants’ did represent certain tangible advances. For instance, the pride of place accorded in them to the right to self-determination as an inalienable "universal right" had an element of novelty although contextually it was mainly an expression of the impatience of the world body with the remaining enclaves of colonial dominance. The two Covenants also contained recommendations on what could be considered in retrospect as a prototype of a UN-controlled enforcement apparatus in the form of a ‘Human Rights Committee’ consisting of 18 members elected by their signatories.
Despite these advances, except in the case of a few ‘flash-points’ perceived by the Security Council as serious threats to peace (represented by its perfunctory involvement in the Kashmir dispute, its backing of US interests during the Korean War, its intervention in the Katanga uprising in the Republic of Congo, and its sanctions against some of the more barbaric regimes such as those of Pol Pot in Cambodia, Idi Amin in Uganda and ‘White’ South Africa), the United Nations generally tended to refrain from direct involvement in situations of internal revolt and oppression especially those under pro-western autocratic regimes, even when they were featured by large-scale human rights violations.
Impulses for the ‘Responsibility to Protect’
It was only after the commencement of trends towards disintegration of the bi-polar geopolitical power configuration in the late 1980s alongside the on-going globalisation of neo-liberal paradigms of development that the human rights dimension of internal revolt in sovereign nation-states began to attract serious attention. Special impetus to the search for rationalisations and modalities of multilateral external intervention in conflicts within national entities was provided in the early 1990s when secessionist conflagrations ignited in the multi-ethnic nation-state of Yugoslavia – the first major post-World War conflict in Europe with which mass violence including ethnicity-based genocide was associated. At the United Nations an outcome of this search was the ‘Vienna Declaration and Programme of Action on Human Rights’ formulated and adopted by a UN-sponsored conference held in June 1993 a special feature of which was the massive scale of participation of non-government organisations.
The ‘Vienna Declaration’, like the ‘Universal Declaration’ upon which its scope was claimed (somewhat misleadingly) to be based, pertained to an amazingly wide range of concerns – political, economic, social and cultural – almost too numerous for specific mention. A careful perusal of this lengthy document shows that it was, in fact, an attempt to synthesise and update as comprehensively as possible the content of a large number of existing UN declarations and protocols, to reinforce the supra-national authority of the UN and regional associations of States in cross-border humanitarian interventions, and to elevate the status of transnational and state-level non-government organisations in matters concerning human rights and welfare. But what should be stressed is that, somewhat paradoxically, the Vienna Declaration also reiterated the principles enunciated in both the ‘Universal Declaration’ as well as the Declaration on ‘Friendly Relations between States’ that: "(N)o State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State". "Armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements were deemed to be in violation of international law".
From ‘R2P’ perspectives, the Vienna Declaration assumes special significance for two other specific reasons. The first was its recommendation to the UN Secretary General for the establishment of an ‘Office of High Commissioner for Human Rights’. This was endorsed by the UN General Assembly, and a ‘High Commissioner’ holding the rank of Under-Secretary General was appointed in December 1993.1 The flexibility that came to be attached to the mobilisation of manpower for this newly established office enabled it to recruit to its cadres at almost all levels persons drawn from transnational and national-level non-government organisations active in their ‘human rights’ pursuits, in most cases with lavish super-power backing. The second – closely linked to the first – was the formal recognition and importance accorded by the Vienna Declaration to non-governmental organisations in the protection and promotion of human rights. According to Paragraph 38 of the Declaration:
"The World Conference on Human Rights recognizes the important role of non-governmental organizations in the promotion of all human rights and in humanitarian activities at national, regional and international levels. The World Conference on Human Rights appreciates their contribution to increasing public awareness of human rights issues, to the conduct of education, training and research in this field, and to the promotion and protection of all human rights and fundamental freedoms. While recognizing that the primary responsibility for standard-setting lies with States, the conference also appreciates the contribution of non-governmental organizations to this process. In this respect, the World Conference on Human Rights emphasizes the importance of continued dialogue and cooperation between Governments and non-governmental organizations".
This seemingly innocuous statement had several implications of significance to the subsequent delineations of the global human rights campaign. In examining its ramifications it is necessary to take into account several crucially relevant but often ignored facts, one of which is that, transnational NGOs based in the ‘West’ such as, say, ‘Amnesty International’, ‘Human Rights Watch’, ‘International Commission of Jurists’ or ‘International Crisis Group’, sustained as they are by grants from western governments and private sources such as corporate donors which represent the interests and perceptions of the ‘West’, were the principal beneficiaries of the recognition accorded by the Declaration. Apart from all else, it is the NGOs of this type that were provided the means of arrogating for themselves formal authority and, more ominously, immunity from the repercussions of whatever blunders they piously commit in the name of human rights without any reciprocal accountability except to their donors. Moreover, the recognition accorded to this category of NGOs paved the way for organs within the UN to bypass the governments of the weaker among its member States and deal directly with elite-level NGOs in such States in matters deemed relevant to the protection of human rights.2
It is well known that the formalisation of the ‘R2P’ concept in its early stages was mainly the outcome of the report submitted in December 2001 to the United Nations by the Canada-sponsored ‘International Commission on Intervention and State Sovereignty’ (ICISS). Despite the controversy generated by this report among member-States of the UN, a watered-down and abbreviated version of some of its recommendations was incorporated as Articles 138 and 139 into the so-called ‘2005 World Summit Outcome’ adopted by the UN General Assembly. Since then there have been intense efforts by those at the vanguard of the ‘R2P’ (including the UN Secretaries General Kofi Annan and his successor Ban Ki Moon) to further entrench and institutionalise the principal ingredients of the doctrine in the UN system. That these efforts have been at least partially successful is borne out by several references since April 2006 to Articles 138 and 139 of the ‘Summit Outcome’ in resolutions adopted by the UN Security Council, and by the UN General Assembly debate on R2P in August 2009.
Since it was the ICISS that laid the formal 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 (the then Chief Executive of the ‘International Crisis Group’ and Mohamed Sahnoon (a UN diplomat from Algeria). Only two of its members were from States that could face (however farfetched such an eventuality could be) 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 (one of which was New Delhi – the venue of the only "consultation" in South Asia) of which, significantly, Mozambique alone could, by any stretch of imagination, figure as a future target of ‘external intervention’.3 The ICISS report also had expert inputs from scholars and diplomats like Thomas G Weiss, Don Hubert, Francis Deng, Samantha Powers, Roberta Cohen and Louise Arbour - to name only a few. Yet, for all that, the overall impression conveyed by the information available on the process of formulation of the ICISS report is that it was almost exclusively a product of a small group of like-minded persons (highly distinguished, no doubt) at the forefront of the intensifying campaign for coercive humanitarian intervention in intrastate conflicts.
Sovereignty of a State, according to the ICISS, is not absolute and not inviolable, but is conditional on its government’s willingness/capacity to ensure the protection of human rights within its domain. When large-scale violations of human rights occur, it is the mandatory duty of other States that have the capacity to prevent such violations to intervene. The report urged that the non-performance of this duty should be looked upon as a violation of "an obligation of international law". Among the other ‘novelties’ discernible in the ICISS Report are:
(a) that the operation of R2P in conflict situations should entail a "continuum" of intervention involving, first, the prevention of human rights violation, followed by coercive action (including military intervention as a last resort) if attempts to prevent fail; and, finally, establishment of safeguards against future violations;
(b) that R2P-impelled interventions are made principally on behalf of victims of alleged atrocities – and "should embrace the victim’s point of view" (whatever that means) ; and
(c) that, 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 "geographical distance" from the venue of such violations, the neighbouring States that possess the capacity to intervene should carry a relatively greater ‘responsibility to protect’ without, however, entailing diminution of the obligation of other States, particularly those represented in the UN Security Council, to intervene in the protection of people from rights violations.
Implications of the ‘Responsibility to Protect’
The submission of the ICISS Report to the UN was accompanied and followed by the appearance of many publications authored by prominent human rights activists with diverse institutional affiliations and representing various persuasions. These were, in general, intended to buttress the ICISS case for coercive intervention to preventing gross violations of human rights, overriding, where necessary, the sovereignty rights of individual States. Over time, they became part and parcel of a powerful propaganda campaign not deficient in scholarly pretentions. As a result, presenting in summary form the essence of the concept of ‘R2P’ (in the way I have attempted above) is beset with the problem stemming from the presence of subtle variations in its different expositions. Writings by Daaler (2007) or Rice (2007) or those sponsored by the ‘Chicago-based R2P Coalition’, for example, differ significantly, especially in respect of focus and thrust, from, say, those authored by, say, Deng (1996), Weiss (2007) or Welsh (2007). Even the leading exponents of the ‘R2P’ concept like Gareth Evans and Louise Arbour have tended to vary their stances in respect of vital matters such as its ‘legal status’ vis-a-vis international relations, its scope (especially on whether it applies only to the four types of rights violations mentioned in the UN Charter – genocide, war crimes, crimes against humanity and ethnic cleansing), its operational modalities (advisory, supportive, coercive, repressive etc.), and its objectives (pre-emptive, preventive, remedial or punitive). Differences could also be discerned in their views relating to the prudence/ feasibility/legitimacy of bypassing the Security Council and/or circumventing UN-based obstacles - especially those that originate in the UN Commission on Human Rights4 – to the exercise of the ‘R2P’ in conflict situations.
In the context of this hazy backdrop it is necessary to preface the present scrutiny of the implications of the ‘R2P’ with the clarification that the ‘R2P’ does not have a legal status pertaining to relations between States at any level. Forceful professional confirmation of this view could, in fact, be found in several writings the most persuasive among which, in my view, being the paper by Byres and Chesterman (2008) according to which "humanitarian intervention in the guise of ‘R2P’ is not lawful, nor should it become so by expanding treaty interpretations and changing customary international law".
In the efforts to provide the ‘R2P’ with a legal garb, one of the most frequent claims made is that the endorsement of the so-called ‘Summit Outcome’ by the UN General Assembly in 2005 represented the formal adoption of the doctrine by the world body.
To be continued...
Post a Comment