Alexandra Lort Phillips W1320533 April 5th 2011LLM Dispute ResolutionInternational Human Rights Module 1LM 7B2

‘The responsibility to protect is humanitarian intervention by another name’

Introduction

The statement refers to the term responsibility to protect, also known as R2P (used interchangeably

in this document), which is a doctrine of international law that has emerged in the relatively recent

past, since 2001, the norms of which are still being established.1 The term humanitarian

intervention has a “long history”2 and its use precedes the responsibility to protect. Both doctrines

are concerned with protecting civilian individuals from the abuses of their own states and because

the issue of state sovereignty is at the heart of the matter they can both be seen to have emerged

from a much longer historical tension between sovereign state power and individual human rights.

Both are linked with the notion of a ‘just war’ which is dates back many hundreds of years. In order

to differentiate the two it will be necessary to define the terms and provide examples of their

differences. R2P emerges as a broader doctrine within which humanitarian intervention can be

found although many it seems would rather the term humanitarian intervention was replaced

altogether. The debate about them attracts both enthusiastic and cynical views within an already

controversial field where politics and international law meet.

Sovereignty and Human Rights

The issue of sovereignty, a norm enshrined in the UN charter articles 2.1 and 2.43 is defined as

“supreme authority within a territory”4 yet its fundamentality poses a challenge when civilians

within a territory are at risk therefore a tension arises:

“’[d]oing something’ to rescue non-citizens facing the extreme is likely to provoke the

charge of interference in the internal affairs of another state, while ‘doing nothing’ can lead

to accusations of moral indifference.”5

The ascendance of human rights in international law since 1945 means the rights of states in terms

of sovereignty have begun to be circumscribed over time. The Universal Declaration of Human

Rights 1948 founded principles of individual rights and later conventions strengthened these. The

emergence of R2P can be seen as another way in which sovereignty has been influenced by human

1 The term was first used as the title of the report produced by the International Commission on State Sovereignty and Intervention in 20012 International Commission on State Sovereignty and Intervention Report, ‘The Responsibility to Protect’ (Ottawa, 2001), p. 93 UN Charter4 Stanford Encyclopaedia of Philosophy http://plato.stanford.edu/entries/sovereignty/#15 Wheeler, Nicholas J. (2000) ‘Saving Strangers: Humanitarian Intervention in International Society’, Oxford University Press, p. 1

Alexandra Lort Phillips W1320533 April 5th 2011LLM Dispute ResolutionInternational Human Rights Module 1LM 7B2

rights. The current crisis in Libya is a stark example of the challenges faced by the international

community when a state turns on its own people and serves as a useful illustration of both concepts.

The Libyan situation has thrown human rights activists into opposing camps with some calling for

intervention in the form of a ‘no-fly zone’ over Libya6 to protect innocent civilians and prevent

deaths while others condemned it as foreign intervention for geostrategic purposes likely to result in

further unnecessary civilian suffering. The question today is how much the responsibility to protect

could be said to be the same in all but name to humanitarian intervention. R2P may have been

designed to reposition or re-frame humanitarian intervention but the statement asks us to believe

that the newer doctrine is essentially the same as the older. It is possible to describe fundamental

differences in terms of meaning, obligation, origin and realisation of the terms but despite this the

issues around both are still being debated.

Responsibility to Protect

The term ‘responsibility to protect’ emerged following a report commissioned by the government of

Canada in response for calls by the then Secretary General of the United Nations Kofi Annan for the

international community to answer questions about responses to potential or actual human rights

abuses against populations by their own state. During the 1990’s it appeared that there was a lack

of consistency about ‘who, when and how’ the international community should respond to states

that attack, or fail to protect, their own populations. Therefore the challenge of standardising

international collective responses to such situations was laid down by in pleas to the United Nations

General Assembly in 1999 and 2000. In the aftermath of conflicts in Somalia, Kosovo and Bosnia,

where collective forces did take action to prevent civilian deaths, and in Rwanda, where the

international response did not prevent genocide, the Secretary General asked for greater consensus

and “unity behind the principle that massive and systematic violations of human rights -- wherever

they may take place -- should not be allowed to stand.”7 In response to the Secretary General’s calls

for unity and consistency the Canadian government in 2001 announced the International

Commission on Intervention and State Sovereignty (ICISS) who with “a number of major

6 Online poll action website avaaz launched an online petition in favour of a no-fly zone, see http://www.avaaz.org/en/libya_no_fly_zone_1?fp but was criticised by articles in several left-wing media including the Guardian newspaper on Thursday 10th March, see http://www.guardian.co.uk/commentisfree/2011/mar/10/internet-activists-libya-no-fly-zone?CMP=twt_fd and Counterpunch website article by Kate Hudson Chairman of the Campaign for Nuclear Disarmament http://www.counterfire.org/index.php/articles/opinion/10997-dont-fall-for-a-no-fly-zone 7 Secretary-General Kofi A. Annan, General Assembly, 20 September 1999, ‘Secretary-General presents his Annual Report to the General Assembly’. Viewed online at http://www.un.org/News/ossg/sg/stories/statments_search_full.asp?statID=28

Alexandra Lort Phillips W1320533 April 5th 2011LLM Dispute ResolutionInternational Human Rights Module 1LM 7B2

foundations”8 made it their goal to consult a wide body of opinion on the matter and report back to

the General Assembly in order to provide clarity, guidance and direction. The resulting document

outlines basic principles that place responsibility to protect squarely within the meaning of

sovereignty yet add that “the principle of non-intervention yields to the international responsibility

to protect”9 where the state in question fails. The report explicitly differentiates ‘responsibility to

protect’ from ‘humanitarian intervention’ renaming the latter as “military intervention for human

protection purposes”10 presenting ‘responsibility to protect’ as a range of obligations with military

intervention for human protection as a final resort with proportionate minimal application. The

ICISS report in three main ways describes R2P as a new way of looking at intervention – firstly from

perspective of the community at risk, secondly of the sharing of responsibility of the state with the

international community and thirdly the need for ongoing prevention and rebuilding work that

should take place along with any military intervention.11 The doctrine is described in further

substantial documents following the Commission report,12 World Summit 2005 Outcomes

paragraphs 138 and 139,13 debated by the General Assembly in July 2009 and subject of a resolution

8 ICISS Commission Report, 2001 p. 85 “ ICISS was funded by the Canadian Government, together with major international foundations including the Carnegie Corporation of New York, the William and Flora Hewlett Foundation, the John D. and Catherine T. MacArthur Foundation, the Rockefeller Foundation, and the Simons Foundation. ICISS is also indebted to the Governments of Switzerland and the United Kingdom for their generous financial and in-kind support to the work of the Commission.”9 See note 2 at p. XI10 See note 2 at p.911 Stahn, Carsten, 2007, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’, 101 American Journal of International Law, p.10312 United Nations reform in the High-Level Panel report on ‘Threats, Challenges and Change’ in 2004, and in 2005 in the Secretary-General’s report ‘In Larger Freedom: Towards Development, Security and Human Rights for All’, the World Summit Outcome report13 World Summit Outcome Report 2005 paragraph’s OP 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.OP 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 to 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 are manifestly failing 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.

Alexandra Lort Phillips W1320533 April 5th 2011LLM Dispute ResolutionInternational Human Rights Module 1LM 7B2

of October 2009 (63/308) to continue to consider it.14 The ICISS report includes questions of

authority and identifies the Security Council as the primary organ of decisions of a coercive nature

with the secondary or fall back role for the General Assembly but also suggesting that regional

organisations could take action through resolution with none of the above being binding on States

legally and use of force still being subject to Chapter VII requirements of the UN charter recourse to

the Security Council. The responsibility to protect was referred to by Louise Arbour, President of the

International Crisis Group15 interviewed on Radio 4’s ‘The World Tonight’ programme on 22nd

February 2011,16 with regard to the international community’s response to the government of Libya

whose security forces are accused of the use of military weaponry against citizens. She described it

as a recent doctrine aiming to “transform the right to intervene into a collective responsibility to

come to the rescue of people who were preyed upon by their own governments.” At that time she

said in the case of events in Libya that military intervention (speaking on 22nd February) would be

premature and that all diplomatic and other measures by regional or long-term partners should be

exercised before military intervention, thus implying the ‘responsibility to protect’ is a much broader

and more inclusive concept than ‘humanitarian intervention’. There are also ‘three pillars’ described

in the foundations of R2P which refer to prevent, react and rebuild responsibilities.17 One of the

consequences of the invasion of Iraq in 2003, it has been said, is that for the responsibility to protect

“consensus has been shattered” 18 and will take a long time to rebuild however this invasion had

none of the qualities of R2P intervention. Supporters of R2P have been enthusiastic about its

potential to unify states in preventing civilian atrocities given that it was agreed to by the World

Summit in 2005 which meant world leaders agreed there was a recognition of the

internationalisation of responsibility while critics have said it has done little substantively to alter the

status quo, has not led to or called for UN reform, does not introduce an enforcement regime and

due to vague terminology allows political will to hold undue influence.19

14 GA Res 2009 63/ 308 viewed online at http://globalr2p.org/media/pdf/UNResolutionA63L.80Rev.1.pdf on Sunday 20th March 201115 Louise Arbour is former High Commissioner for Human Rights and former Chief Prosecutor of International War Crimes Tribunals of the former Yugoslavia and Rwanda and current President and CEO of The International Crisis Group “an independent, non-profit, non-governmental organisation committed to preventing and resolving deadly conflict”, see www.crisisgroup.org for more information.16 The programme is available to listen to at the BBC website, it took place at 10pm on 22nd February 2011 on Radio 4’s ‘The World Tonight’ hosted by Robin Lustig, see http://www.bbc.co.uk/programmes/b00yy8b717 Dr. Zuber of Global Action to Prevent War presentation slides ‘The Rationale for a UN Emergency Peace Service (UNEPS)’, viewed at http://www.globalactionpw.org/index.php?s=peacekeeping-and-civilian-protectionrev on Monday 4th April 201118 Response to a question about humanitarian intervention speaking event on March 16th 2011 at the Haldane Society Philippe Sands describes what has happened to the responsibility to protect19 Hehir, Aidan, 2010, ‘The Responsibility to Protect: ‘Sound and Fury Signifying Nothing’?, International Relations, 24, 218-239

Alexandra Lort Phillips W1320533 April 5th 2011LLM Dispute ResolutionInternational Human Rights Module 1LM 7B2

Humanitarian Intervention

Humanitarian intervention, contra-indicated by its name, is not the provision of aid in the form of

medicine, food or shelter, but instead refers to intervention by one or more states using “coercive –

and in particular military – action, against another state for the purpose of protecting people at risk

in that other state.”20 Falling within the ‘just cause’ reasoning for military intervention, an ancient

classification, the notion of humanitarian intervention has been developing since the 1945 UN

Charter spelled out articles for the maintenance of world peace and order and protection of

individual human rights, emerging further since the end of the Cold War. Justifications for going to

war referred to as jus ad bellum are centuries if not millennia established.21 The term, as the 2001

ICISS consultation found, is very problematic for humanitarian agencies due to its association with

military action, so was redefined as “”intervention” or “military intervention” for human protection

purposes”22 in the report in line with the age old ideal of protecting others within the broader

discussion of R2P which includes protect, react and rebuild components as well as guidelines on

authority, thresholds and obligations. In recent years the ‘right authority’ and ‘right intent’ aspects

of intervention and its credibility in humanitarian terms have been undermined due to controversial

wars. Humanitarian intervention is tainted with the criticism that essentially it is a breach of

another state’s sovereignty undertaken by external states to satisfy their own foreign policy

endeavours under the guise of protecting rights. Intervention itself for such purposes now also

suffers association with pre-emptive wars and economic expansionism conducted illegally or

unilaterally without the ‘proper authority’ of UN agreement. For example, the invasion of Iraq in

2003 resulted in the documented deaths of many thousands of Iraqi civilians23 yet humanitarian

intervention was used as one of its justifications. Human Rights Watch World Report 2004 explains

how this justification gained more prominence as weapons of mass destruction failed to appear but

that “the invasion of Iraq failed to meet the test for a humanitarian intervention”.24 In March 2011

humanitarian intervention was referred to in an article about the possibility of intervention in Libya 20 International Commission on State Sovereignty and Intervention, ‘The Responsibility to Protect’ (Ottawa, 2001), p. VII21 Atwood, Susan J., 2003, ‘From Just War to Just Intervention’, 19 New England Journal of Public Policy, pp. 55-75. A ‘just war’ is said to rely on the principles that war was waged for just reasons and in a just manner; some origins of ‘just war theory’ are found in medieval Christian theology. Saint Augustine in around 400AD suggested that the killing of human beings could sometimes be acceptable in line with the Christian ideals that “man would do no harm, that man would prevent harm to others, that he would remove the source of harm, and that he would do good to others.” In the thirteenth century Thomas Aquinas outlined three conditions of “right authority, just cause and right intent” that together imply a just war.22 See note 2 at p. 923 Hicks MH-R, Dardagan H, Guerrero Serdán G, Bagnall PM, Sloboda JA, et al. 2011 Violent Deaths of Iraqi Civilians, 2003–2008: Analysis by Perpetrator, Weapon, Time, and Location. PLoS Med 8(2): e1000415. doi:10.1371/journal.pmed.1000415 viewed at http://www.plosmedicine.org/article/info:doi/10.1371/journal.pmed.1000415

Alexandra Lort Phillips W1320533 April 5th 2011LLM Dispute ResolutionInternational Human Rights Module 1LM 7B2

and was strongly criticised as “racist paternalism”25; the image depicted with the article, also seen on

television news, is of a large professionally produced banner hanging from a building saying ‘No

foreign intervention Libyan people can manage it themselves’. As the days went by it became

apparent to observers that unarmed civilian Libyans perhaps could not manage it themselves and on

18th March the UN resolution to intervene was passed at the Security Council.

Issues

The use of new terminology been referred to as a “rhetorical trick”26 and as “altering the rhetoric

employed”.27 This ‘rhetorical’ criticism is not referring to R2P as being the same as humanitarian

intervention but these writers believe that essentially there is little new about the understanding

that states should protect their own people, the human rights of individuals being protected since

the Universal Declaration of Human Rights by numerous human rights conventions such as the

ICCPR28 and the Genocide Convention. Critics argue that the introduction of a new term without

substantial binding, reform or enforcement aspects still leaves a system open to the selectivity and

inconsistency of the pre-existing one, subject to political will and hardly revolutionary. Adjustments

to the original ICISS document have led to accusations of watering down with decisions about

whom, how and when to intervene still subject to political will and no structural reform of the

processes of international decision-making about protection of civilians in other countries. Despite

the non-binding quality it has been seen, at least with the Security Council resolutions regarding

Libya in March 2011, that for the first time 15 members voted together for resolution 1970 and five

members abstained on resolution 1973 rather than veto suggesting that the idea of collective action

in relation to civilian protection might be emerging.

Conclusion

24 Human Rights Watch Report ‘Human Rights and Armed Conflict’ 2004, p. 33. In addition the Report outlines some conditions for the test of ‘humanitarian intervention’ these being: ”First, military action must be the last reasonable option to halt or prevent slaughter; military force should not be used for humanitarian purposes if effective alternatives are available. Second, the intervention must be guided primarily by a humanitarian purpose; we do not expect purity of motive, but humanitarianism should be the dominant reason for military action. Third, every effort should be made to ensure that the means used to intervene themselves respect international human rights and humanitarian law; we do not subscribe to the view that some abuses can be countenanced in the name of stopping others. Fourth, it must be reasonably likely that military action will do more good than harm; humanitarian intervention should not be tried if it seems likely to produce a wider conflagration or significantly more suffering” p. 1925 Seymour, Richard “Humanitarian Intervention” in Libya: The Revival of Imperialist Ideology published online on 2nd March 2011 at http://www.globalresearch.ca/index.php?context=va&aid=23465 26 Stahn, Carsten 2007, ‘Responsibility to Protect: Political rhetoric or emerging legal norm?’, American Journal of International Law, 101, p. 10227 See note 18 at p. 23228 International Convention on Civil and Political Rights

Alexandra Lort Phillips W1320533 April 5th 2011LLM Dispute ResolutionInternational Human Rights Module 1LM 7B2

Humanitarian intervention’s association with military action and in terms of the original question the

‘react’ strand of R2P could be equated to a certain degree. On the other hand a certain degree of

international support for R2P and the associated emergence of standards in peace-building

contribute to a change in perspective from state entity to individual rights and introduces a broad

range of longer term responses in principles of prevention and development as a foundation for

delivery of civilian protection under a different dynamic. Prevention initiatives are unlikely to

become news items because they are quietly undertaken. Progress to binding structural and legal

realisation in human rights is not something that tends to happen overnight and R2P is still

emerging. R2P has now been referred to by the Security Council in its press statement about and

resolution 197029 of 26th February 2011 in relation to Libya – the first Security Council resolution to

have been adopted unanimously - presented a range of measures including asset freeze, sanctions

and embargo, International Criminal Court referral is an example of R2P and in this case military

intervention to protect civilians was not included, this has come later in resolution 197330 of 18th

March 2011, thus differentiating the two doctrines under consideration. The question is now that

the term has been applied in the context of resolutions and action by the international community in

a relatively collective way whether or not it will be applied consistently to other scenarios. In

addition remains the question of whether the ‘rebuild’ pillar of R2P be implemented to adequately

to differentiate the action in Libya from humanitarian intervention.

29 UN SC Resolution 1970 (2011) ‘Peace and Security in Africa’, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/245/58/PDF/N1124558.pdf?OpenElement30 UN SC Resolution 1973 (2011) ‘The situation in Libya’, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/268/39/PDF/N1126839.pdf?OpenElement

Alexandra Lort Phillips W1320533 April 5th 2011LLM Dispute ResolutionInternational Human Rights Module 1LM 7B2

Bibliography – books and articles

Atwood, Susan J., 2003, ‘From Just War to Just Intervention’, 19 New England Journal of Public

Policy, pp. 55-75.

Hehir, Aidan, 2010, ‘The Responsibility to Protect: ‘Sound and Fury Signifying Nothing’?,

International Relations, 24, 218-239

Hicks MH-R, Dardagan H, Guerrero Serdán G, Bagnall PM, Sloboda JA, et al. 2011 Violent Deaths of

Iraqi Civilians, 2003–2008: Analysis by Perpetrator, Weapon, Time, and Location. PLoS Med 8(2):

e1000415. doi:10.1371/journal.pmed.1000415 viewed on at:

http://www.plosmedicine.org/article/info:doi/10.1371/journal.pmed.1000415

International Commission on State Sovereignty and Intervention, ‘The Responsibility to Protect’

(Ottawa, 2001) viewed in March 2011 online at http://www.iciss.ca

Seymour, Richard “Humanitarian Intervention” in Libya: The Revival of Imperialist Ideology published

online on 2nd March 2011

Stahn, Carsten 2007, ‘Responsibility to Protect: Political rhetoric or emerging legal norm?’, American

Journal of International Law, 101

Wheeler, Nicholas J. (2000) ‘Saving Strangers: Humanitarian Intervention in International Society’,

Oxford University Press

Stanford Encyclopaedia of Philosophy viewed online in March 2011 at:

http://plato.stanford.edu/entries/sovereignty/#1

Websites

http://www.avaaz.org

http://www.bbc.co.uk

http://www.counterfire.org

http://www.crisisgroup.org

http://www.globalactionpw.org

http://www.globalr2p.org

http://www.globalresearch.ca

http://www.guardian.co.uk

http://www.hrw.org

http://www.iciss.ca

http://www.plosmedicine.org

http://www.un.org