Luc Hinson, University of Leeds, UK
Luc Hinson is a final year student of International Relations and Spanish at the University of Leeds. He is interested in security studies, the RtoP and specifically the RtoP on the continent of Africa.
The Responsibility to Protect (hereafter R2P) is a concept heavily contested by a range of scholars including sceptics such as Hehir and Reinhold. For Hehir and Reinhold, the progress it represents is illusionary; by failing to change international law and order it is a continuation of the status-quo. They state that the current form of RtoP has not changed the powers of the UN Security Council (hereafter UNSC), nor has it ascribed any “new competencies or procedural laws” (Hehir, 2013, p. 152). To dispute these claims, I will call upon arguments of varying levels of advocacy including Bellamy, Ralph, Gallagher, Thakur, Welsh and Williams, and dispel the three challenges of RtoP being ‘business as usual’, a “permanency of inconsistency” (Hehir, 2013) and “sound and fury signifying nothing” (2010), whilst acknowledging the limitations of R2P. A further acknowledgement of the limitations of the word count of this essay explains the focus on exclusively sceptics and advocates. In addition to using the arguments preponed by advocates of the RtoP this essay will focus on the role of the African Union (hereafter AU) in implementing and contesting RtoP, and demonstrating how, to this continent R2P represents anything but progress.
To many, R2P is an African concept. Edward Luck stated that “the concept emerged, quite literally, from the soil and soul of Africa” (Williams, 2009, p. 397). Arguably, the R2P was a direct response to the Rwandan genocide of 1994, and a challenge to the inertia of the UNSC to protect civilians where the state was manifestly failing to uphold its Pillar I responsibilities. As Evans noted in 2007, “nearly 60% of the Security Council’s agenda concerned either specific crises in Africa or thematic issues of concern to the continent” (Evans, 2008, p. 189). There is a clear focus on the continent for the UNSC, and therefore R2P carries the most weight in Africa, both in implementation and contestation. It is currently host to several crises where RtoP has been used as a framework of response; in Sudan, Mali and CAR. Additionally, the AU has been “eulogized for preciously enshrining certain principles of R2P in Article 4h of its constitutive act” (Abbas, 2012, p. 109), being the first regional organisation to fully codify ideas of RtoP in its constitutive document.
Ban Ki-moon has stressed the importance of regional organisations. In his 2011 report on the R2P, he stated that “the surest path for advancing the responsibility to protect is through global-regional-sub-regional partnership” (Ki-moon, 2011, p. 13), giving credence to the cascading norm of RtoP and its regional dimension. By pairing the voices of different advocates with the presence of RtoP in AU protocol, direct evidence of the progress of RtoP will be given.
Business as usual
The notion of R2P as ‘business as usual’ is based on the belief that R2P has failed to achieve any significant changes to international law. However, the discourse surrounding R2P has achieved significant changes to how intervention is discussed. Bellamy states that “the key debates now are ones about how best to implement R2P, not about whether to accept the principle itself” (2014, p. 12). Ralph and Gallagher echo this sentiment that “the RtoP is now in the room” (2015, p. 241). Furthermore, the debate surrounding sovereignty has been reconceptualised. Deng wrote in 1996 that “sovereignty carries with it certain responsibilities for which governments must be held accountable” (Deng, 1996, p. 1). Those responsibilities have, with the advent of RtoP, been clarified as protection against the four crimes as identified in the World Summit Outcome Document of 2005 (hereafter WSOD).
Business as usual identifies R2P as a continuation of western-led interventions and imperialism, a criticism pegged to humanitarian intervention (HI). The distinctions between HI and RtoP will be further outlined in “sound and fury signifying nothing”, but it is used here to outline two key points to the argument. Firstly, R2P has seen a shift in who controls the invocation of R2P. Bellamy identified that “U.S. diplomats understand that, owing to lingering concerns about U.S. tendencies toward unilateralism on the use of force, R2P would be better served by the leadership of others” (Bellamy, 2015, p. 174). Secondly, western powers have been met with outcry when attempting to abuse R2P as a justification for the use of force, outside of that outlined in the WSOD, notably when Russia (a P5 member) attempted to invoke R2P as justification to invade Georgia (Ibid, 2014, p. 176). This counters the notion by Hehir that R2P can easily be hijacked by the great powers to further their imperialist agendas, as was possible under the guise of HI.
To further challenge the assertion of R2P as business as usual I point to the normative qualities of R2P and its contestation. Both Welsh and Hofmann have pointed to the usefulness of contestation in the development of a norm. Welsh states contestation “should be seen as part and parcel of normative evolution” (2013, p. 395). Hofmann reiterates this: “Contestation is in this sense not a sign of normative regress; it is in fact intrinsic to the normativity or legitimacy of a norm” (Hofmann, cited in Ralph and Gallagher, 2015, p. 245). With R2P, most of this contestation comes from within. States have been vocally critical of the norm and have been involved in developing proposals and amendments to the R2P adding regional input to the norm. Two examples of these proposals would be “Responsibility while protecting” (RWP) emerging from Brazil and “Responsible protection” (RP) emerging from China (Bellamy, 2015, p. 180). Thakur and Orchard identify a process called “Norm Localisation”, which describes how in different international societies norms gain traction and develop at different rates. An example of this is present in the AU policy regarding IDPs. Notably, this is an aspect of the R2P that was outlined by Ban Ki-moon in his 2009 UNSG report where he stated: “The protection of refugees and internally displaced person was a direct goal of the R2P” (Orchard, 2016, p. 297). This entered into hard law on two occasions: Firstly, with the Great Lakes Protocol, and then furthered by the Kampala Convention. These initiatives have seen the protection of IDPs against atrocity crimes enter hard law, demonstrating progress that is far from illusionary (Orchard, 2016, p. 315). These concepts demonstrate how the norm is (a) still undergoing transformation, and (b) that control of the norm is far from unipolar in contrast to HI. This demonstrates clear normative progress.
Permanency of Inconsistency
Hehir points to the “permanency of inconsistency” as one shortcoming of RtoP, specifically focusing on the inertia of the P5, the Veto and the influence national interest still has in shaping foreign policy. Hehir reduces the application of R2P by the P5 to “whether the members of the P5 have a collective interest in – or are at least not opposed to – halting a particular looming or actual mass atrocity” (2013, p. 152). One of the more nuanced advocacy arguments comes from Gallagher, and sets out a “call to manage the expectations” of R2P (2015, p. 256). This is centred around paragraph 139 of the WSOD, which calls for “collective action in a timely and decisive manner through the security council … on a case-by-case basis” (UNGA, 2005). Integral here is the case-by-case clause. R2P does not represent a linear policy decision making system, rather it is a framework used to address atrocity crimes and their prevention. As each case vastly differs, differing outcomes and decisions are to be expected. Ralph and Gallagher further this: “When states signed up to the World Summit Outcome Document they did not expect a consistent response because they recognised that each situation was different” (2015, p. 244). Expectations of what R2P can do and what R2P itself is, need furthering to fully understand what is achievable in the name of R2P. It is not a catch-all linear decision making process, but instead a framework used on an ad-hoc basis recognizing that each case differs vastly in scope and scale.
To counter ‘permanency of inconsistency’, I look again to the AU and its institutions. Sceptics such as Hehir point to the UNSC’s veto as “the biggest issue regarding the UNSC’s record on humanitarian intervention” (2010, p. 220). As Williams affirms, “Africa is one of the most important crucibles in which the R2P was forged” (2009, p. 413), and has been one of the most dynamic reformers in countering the inertia of the UNSC. The PSC (Peace and Security Council) of the AU has no veto, and therefore no ability “to hold the fate of nearly one billion Africans hostage” (Abbas, 2012, p. 131). Moreover, within the AU we have seen developments in regional military capabilities such as the African Stand-by-Force identified by Ban Ki-moon in his 2011 report (p. 9), encouraging them as an alternative to the at times paralysed and gridlocked UNSC. Essentially, the AU is taking steps to reform the organs responsible for the invocation of R2P in Africa.
The permanency of inconsistency talks of the UNSC as if it were the only organ responsible for invoking R2P. The growing power and responsibilities of regional organisations is apparent. Perhaps of most value in countering the inertia of the UNSC is article 4 of the AU’s constitutive act. Article 4(h) allows for “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity” (Abbas, 2012, p. 110). Notably, with no power of veto in the PSC and only a required 2/3 supra-majority to achieve consensus, the mechanisms exist for timely and decisive action (Abbas, 2012, p. 131). The AU and PSC (theoretically) can act in a timely and decisive manner to respond to atrocity crimes on the continent of Africa without UNSC approval, and subsequently seek “retrospective approval” (Abbas, 2012, p. 125). Whilst the AU has never acted in such a manner, the mechanisms are in place to circumvent UNSC inertia.
Development of AU IDP legislation further specifies how the RtoP has made genuine progress. States can fulfil RtoP responsibilities by taking in IDPs and refugees, an idea advanced by Ralph and Souter as a “special responsibility” (2015, p. 713). Both the Kampala Convention and Great Lakes Protocol have been ratified by AU member states indicating successes at the regional level, with aspects of R2P entering hard law and the “internalization” stage of Finnemore and Sikkink’s norm-life-cycle theory., which is useful here in analysing the current trajectory of R2P as a norm. The three stages of a life cycle for a norm are: norm emergence where it begins to gain recognition, norm cascade once the norm passes a tipping point and institutions such as states and INGOs recognize the norm, and finally norm internalization which they define as reaching a “taken-for-granted quality”. They note that the actors responsible for reaching internalization are (notably to the AU and IDP legislation) (1) law, (2) professions and (3) bureaucracy (Finnemore & Sikkink, 1998, pp. 895, 898). Finnemore and Sikkink also discuss the mechanisms integral to internalization as being institutionalization and habit. Williams argues R2P has “found an institutional home in Africa” (2009, p. 416).
Sound and Fury Signifying Nothing
A further critique by Hehir is that RtoP lacks “substance” and is no more than a “slogan employed for differing purposes shorn of any real meaning” (2010, p, 219). This implies there have not been substantive changes to UNSC practice. Ban Ki-moon appeared to acknowledge the discourse-policy gap when, in his first address as UNSG, he promised to turn R2P from “promise to practice” (Ban, 2009, p. 28). To counter this critique, we look to the normative transition from the doctrine of HI to R2P. Thakur himself states that “R2P was the ICISS answer to reconciling the neuralgic rejection of humanitarian intervention by the global south, with the determination by the north to end atrocities” (2016, p. 417). This highlights two arguments. Firstly, that R2P in substance is vastly different from HI, because it shifts the focus from the intervening states, to that of “the perspective of the victim” (Thakur, 2016, p. 418). Secondly, that R2P is no extension of Western Exceptionalism, with contestation coming from a wide range of non-western states and actors.
Evans further outlines dissimilarities between HI and R2P. Referring to the coercive measures ascribed to Pillar III he states “it is a travesty of the responsibility to protect principle to say that it’s about military force and nothing else” adding “that’s what humanitarian intervention is about, but it’s not R2P” (Evans, 2012, p. 378). Evans describes the dimensions of R2P as being “political, diplomatic, legal, economic or in the security sector” (Evans, 2012, p. 377). This argument is to a certain extent useful in distinguishing between HI and R2P, and demonstrating the successes R2P has achieved. However, simultaneously it provides fodder for sceptics such as Hehir: Evans, by claiming R2P possesses those catch-all dimensions, enables the application of lofty ambitions to the principle. While it is important to emphasise the differences between the two, for the norm to be internalised expectations need to be managed and the limitations of the principle need to be understood. This cannot be achieved through ascribing it the catch all dimensions of Evans. Peter Hilpold supports this: “The shared understandings of R2P to date are not deep enough and its practice remains too inconsistent” (Hilpold cited in Thakur, 2016, p. 421). The norm is still young in comparison to other international norms. With increased use deeper understanding of the limitations will be gained. Currently there are many varying degrees of advocacy for the norm, but when a shared and realistic understanding of what it can achieve is reached, the norm will truly be able to flourish.
Externally to the debates surrounding managing expectations of R2P it is important to note there have been success of R2P that dispel it being merely a slogan. Notably, prior to Resolution 1973 on Libya the UNSC had never “authorized the use of force to protect populations without the consent of the de jure authorities” (Bellamy, 2010, p. 171). This is an invocation of RtoP in the new reconceptualised era of sovereignty as a responsibility, not a right, and a clear demonstration of Pillar III at work. Hehir may dismiss this resolution as the “aberrant ashes of resolve and timely action” (2013, p. 137), but the commitment of the international community to intervene in a state manifestly failing to uphold its responsibilities as sovereign indicate a clear success for the R2P in the fore of intervening, as contentious as its reception may now be.
The AU reinforces these claims. Within the AU there has been direct action in accordance with R2P; in 2009 the AU cited R2P in imposing arms embargos on both Guinea and Niger (Abbas, 2012, p. 129). Moreover, Resolution 1962 by the UNSC upgraded an existing regional peacekeeping operation (UNOCI) to use “all necessary means to carry out its mandate” (Abbas, 2012, p. 128), highlighting again the integral nature of regional organisational cooperation in implementing R2P. Additionally, to counter P5 inertia ECOWAS have adopted a protocol that “allows it to take enforcement actions in any of its member states without their consent” (Abbas, 2012, p. 128), indicative of the reconceptualised notion of sovereignty.
An undeniable shift has occurred in the discourse surrounding sovereignty and intervention. In the wake of Resolution 1973 it is clear to states that sovereignty is not an absolute right, but a responsibility that must be upheld. The focus on the AU displays how on one continent, the normative journey of RtoP has faced strong contestation and reform, but now, on a continent gripped by instances of mass violence, R2P is used as a guiding framework to respond to these crises. The original ICISS report of 2005 stressed that R2P was to be a “guiding principle for the international community” rather than a singular doctrine on intervention (ICISS, 2005, p. XI).
The Ezulwini consensus embodies an African response to African problems, and denotes a proactive approach to regional invocation of R2P. In 2008 the AU chairperson said “the AU would no longer sit and do nothing just because the international community decides to do nothing” (Abbas, 2012, p. 126). This readiness and proactivity is refreshing, and important in a debate dominated by P5 inaction. The UN as a large transnational body suffers from plurality of opinion; it must account for all voices of member states and must debate, at length, every issue brought before it.
This can and does provide a roadblock to the timely action of paragraph 139 of the WSOD. This however, is a logistical problem within the UN, not a substantive issue with R2P. Reiterating Bellamy: the debate is now about implementation, not acceptance. The role regional organisations play is paramount in the progress R2P makes over the next decade. Ban Ki-moon identified them as the “surest path” in ensuring the progress of RtoP. The AU has taken steps of internalization with the enshrining of IDP protection in hard law, the creation of its own SC, stand-by-force and early warning system. The AU is in some respects exemplary progress of R2P internalization on the continent of Africa.
To conclude, this essay has argued that while clear progress of the R2P has been made, it is young and still cascading, to be internalized and enshrined in law. Expectations of what it can do need to be managed. A call for a more nuanced advocacy of the norm that engages with the obstacles to internalization and a deeper understanding of the limits of the norm is needed. If obstacles to internalization can be overcome, great potential for the norm in international society is a certainty.
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