To sever or salvage? Disaggregating the coercive military component of the R2P

By Jamal Nabulsi 

Jamal Nabulsi is a Master of International Relations (Advanced) student at the Australian National University. He is interested primarily in the ethics of war and normative International Relations theory. His Master’s thesis is on the ethical theory around preemptive and preventive wars.

The Responsibility to Protect (R2P) doctrine is not dead, but one of its limbs is gangrenous and in dire need of amputation to save the body from infection. This article will argue that, in light of the 2011 NATO-led intervention in Libya, the coercive military component of R2P must be disaggregated from the body of the doctrine. This will allow for the consensus around R2P to widen, strengthening its normative force, while the debate about coercive military intervention can carry on outside of the R2P framework. This article will outline the R2P doctrine, describe its implementation in Libya and the consequences thereof, explain why proposed solutions fall short, before offering disaggregation as a solution.

The R2P was first articulated in the 2001 Report of the International Commission on Intervention and State Sovereignty (ICISS) as the notion that a state’s sovereignty is contingent upon its fulfilment of its responsibility to protect its population from avoidable catastrophes, and that when a state fails to fulfil this responsibility (either through inability or unwillingness), the responsibility falls on the international community (ICISS, 2001, viii). The R2P was further clarified in the 2005 United Nations (UN) World Summit Outcome document, as well as being unanimously adopted by the UN Member States (United Nations, 2005, p.30). The 2009 Report of the UN Secretary-General on implementing R2P outlined a three-pillar strategy for implementation. Pillar one is the responsibility of states to protect their populations from the atrocities of ethnic cleansing, genocide, war crimes and crimes against humanity. Pillar two is the international community’s commitment to assist states in protecting their populations from such atrocities. Pillar three is the UN Member States’ responsibility ‘to respond collectively in a timely and decisive manner when a state is manifestly failing to provide such protection’ (United Nations, 2009, p.9). This includes non-violent measures under Chapter VI of the UN Charter, collaboration with regional organisations under Chapter VIII and/or coercive military intervention under Chapter VII (United Nations, 2009, pp.8-9). 

The 2011 NATO-led intervention in Libya was a watershed moment for the R2P doctrine (Evans, 2013). It was the first time that coercive military intervention under Chapter VII was authorised by the UN Security Council against the express will of the state in question with the stated intention of protecting a population from falling victim to mass atrocities. This authorisation was granted in the context of the ‘Arab Spring’—a wave of popular, anti-authoritarian, pro-democracy demonstrations that swept the Middle East and North Africa from the end of 2010. In contrast to the relatively peaceful transitions of power that occurred in Egypt and Tunisia, the protests in Libya quickly turned violent (Glanville, 2013).

Muammar al-Qaddafi, then leader of Libya, promised to ‘show no mercy’ in crushing the ‘cockroaches’ protesting his rule (as quoted in Glanville, 2013, p.333). Such dehumanising language, echoing that used by genocidaires prior to the Rwandan genocide, was a key factor in spurring the Security Council into action (Hehir, 2013, p.138). Another key factor was the condemnation of the Qaddafi regime’s human rights violations by relevant regional organisations (African Union, 2011), and subsequent calls by some of them to establish a no-fly zone in Libya (Council of the League of Arab States, 2011; Glanville, 2013, p.334).

On February 26, 2011, the UN Security Council unanimously adopted Resolution 1970, which condemned the Qaddafi regime’s violence against civilians (invoking Libya’s responsibility to protect its citizens) and imposed an arms embargo on Libya, among other measures (United Nations Security Council, 2011a). Subsequently, on March 17, 2011, the Security Council adopted Resolution 1973 which, most notably, implicitly authorised coercive military intervention in Libya through the enforcement of a no-fly zone, aimed at preventing the Qaddafi regime’s air force from attacking Libyan civilians (United Nations Security Council, 2011b). This resolution was passed by a 10-0 vote, with China, Russia, Brazil, Germany and India abstaining (Silander, 2013, p.269). The reservations expressed by these countries were in relation to the dubious effectiveness of coercive intervention and the lack of specificity regarding the exact form that the military action would take (Odeyemi, 2016, pp.11-12).

Upon NATO’s implementation of Resolution 1973, these concerns were borne out with disastrous consequences for the Libyan people. Rather than focussing strictly on protecting the population, the NATO mandate quickly evolved to include overthrowing the Qaddafi regime (Bachman, 2015, p.56). This was justified on the grounds of its necessity for protecting Libyans in the long-run, however, Kuperman (2013) convincingly argues that regime change was sought as an end in itself, not as a means to the end of protecting the population. NATO forces engaged in actions that were inconsistent with protecting the population but that sought regime change, such as attacking Qaddafi regime forces that were in retreat and failing to pursue offered ceasefires (Kuperman, 2013, pp.113-115).

NATO airstrikes in Libya were markedly discriminatory, with independent estimates of civilian casualties ranging from 55 (Amnesty International, 2012) to 72 (Human Rights Watch, 2012), resulting from 9,700 strike sorties. However, NATO support for Libyan rebel groups facilitated the incidence of countless war crimes and crimes against humanity. During the conflict, for instance, it has been reported that the NATO-backed rebels were committing similar human rights violations to those perpetrated by the Qaddafi regime (Bachman, 2015, pp.61-62).

But the most egregious crimes by the rebels have been committed since NATO evacuated, all but shirking their responsibility to properly see through the transition to democratic government and to help in rebuilding Libya. These crimes include the racially-targeted expulsion of Tawergha’s 30,000 inhabitants (Human Rights Watch, 2011a), the summary execution of Qaddafi and widespread reprisal killings and torture (Human Rights Watch, 2011b). The first elected Libyan Prime Minister lasted one month, before being removed with a vote of no confidence (Bachman, 2015, pp.63-64). Today, Libya remains deeply divided as competing militia groups continue to fight for control over the country amidst widespread lawlessness and economic collapse (Amnesty International, 2017, p.233). The ongoing human suffering that this situation entails is incalculable. 

Would Libya have been better off without a NATO-led intervention? According to Kuperman’s (2013, p.123) plausible counterfactual, the NATO-led intervention magnified the death toll by seven to ten times. Regardless of the accuracy of this estimate, the NATO-led intervention evidently led to untold human suffering, and its ramifications continue to endanger the lives of countless Libyans. 

The disastrous outcome of the NATO-led military intervention in Libya has inflamed the controversy around the coercive use of military force to achieve the humanitarian goals of R2P. This has, in turn, damaged the international support for the R2P doctrine as a whole. The Libyan intervention drew sharp criticism from the BRICS states—Brazil, Russia, India, China and South Africa—among others. Their foremost concerns were that NATO grossly overstepped its mandate (outlined in Resolution 1973) by pursuing regime change, that disproportionate force was used, that opportunities for political dialogue and peaceful settlement were ignored, and that the arms embargo was breached by supplying weapons to the rebels (Bellamy, 2015, p.179). This controversy around the coercive military aspects of R2P’s third pillar has meant that the consensus around the doctrine as a whole has frayed. This is evident most clearly in the rhetoric used by Russia to reject authorising intervention in Syria (regardless of Russian intentions behind this rhetoric) (Gifkins, 2012). 

The positions of the BRICS countries become increasingly important as the global balance of power continues to shift in their favour (Morris, 2013, p.1280). In response to the perceived excesses of the NATO-led intervention in Libya, and the damage that this did to the credibility of the R2P doctrine, Brazil have proposed the concept of ‘responsibility while protecting’ (RWP). While endorsing the basic principles of R2P, RWP calls for establishing a set of guidelines for implementing R2P. These include the strict chronological sequencing of the three pillars, limiting the resort to force and holding intervening states to account for breaching the guidelines (Kenkel, 2016).

With similar intentions and content, China proposed the concept of ‘responsible protection’ (RP). RP requires that the goals of intervention are outlined more clearly, the means of protection are limited, the intervenors are responsible for post-intervention rebuilding, and mechanisms of supervision are put in place to hold intervenors accountable for any breaches of their defined mandate, among other measures (Zongze, 2012). Both RP and RWP were thus, at least ostensibly, attempts to bridge the widening gap between R2P supporters and sceptics.

Although RWP and RP are well-thought-out attempts to address the serious concerns with R2P that arose in the wake of the Libyan intervention, they have ultimately failed to make a significant impact on the doctrine (Bachman, 2015, p.64). If a set of rules governing an R2P intervention, like those presented in RWP and RP, could be strictly enforced by an international authority, perhaps they would sufficiently alleviate the ailments of R2P. However, in the current international system, where no such authority exists and national interest-driven ulterior motives for intervention are inevitably present, RWP and RP are insufficient and have failed to gain traction among Western powers. 

The presence of such ulterior motives makes R2P interventions prone to expanding their objectives, even if this works against the supposedly primary objective of protecting populations (Kuperman, 2013, p.135). Evidence of national interest-driven ulterior motives being a necessary condition for R2P intervention can be seen in the inconsistency with which R2P has been applied. For instance, it is suggested that the US interest in Libya’s rich natural resources and geostrategic importance were decisive factors in choosing to intervene there (Hehir, 2013, p.156). On the other hand, US interests in its regional alliances have led to an almost diametrically opposite response to the similar situation in Bahrain, where pro-democracy protestors have been brutally tortured and killed (Graubart, 2015, p.214). This is not to claim that humanitarian concerns are not considered whatsoever, but that they are overridden by national interest. These ulterior motives not only negatively impact the effectiveness of interventions to protect populations, but also have negative reputational costs for the R2P doctrine, as evidenced by the current aversion of BRICS and other states to the doctrine (Paris, 2014). This aversion is primarily due to their concerns with the coercive military aspects of pillar three, despite their fundamental agreement with the underlying principles of R2P (Stuenkel, 2014). 

The problem of ulterior motives has led Graubart (2015) to advocate for eliminating the coercive military component of R2P entirely. He argues that normatively legitimating military intervention to protect populations is effectively establishing a new category for resorting to force. This new category is ripe for manipulation and its net impact in being implemented will only be more national interest-driven interventions that will ultimately cause more suffering than they will prevent (Graubart, 2015, pp.210-217).

A strong argument against the case for eliminating the coercive military component is that such interventions are going to happen either way, so it is better that we have a set of norms governing these interventions, rather than allow them to be driven entirely by national interest. It is argued, for instance, that the ‘pragmatic appeal of R2P is that rather than be paralysed by geopolitical hierarchies, it carves out a category of mixed-motive, status quo friendly interventions that nevertheless save lives’ (Graubart, 2015, p.204). In response, it is argued that military interventions are inevitably going to be driven by motives of national interest, but R2P increases the prevalence of these interventions by providing a humanitarian cover for these motives, thus reducing the normative hurdles in front of intervening militarily (Graubart, 2015, p.217).

This fiery debate around coercive military intervention, which was stoked by the Libyan intervention, will continue to rage on. But rather than eliminating the coercive military component of R2P completely, the lesson that should be drawn from the Libyan case is that the coercive military component should be disaggregated from the rest of the R2P doctrine. This will allow for the military intervention debate to continue outside of the framework of R2P, while allowing the consensus around R2P to strengthen significantly, ultimately leading to increased protection of populations in the future. 

There is seemingly a trade-off between R2P’s ability to not allow states to act indifferently in the face of looming mass atrocities and its not providing states with an excuse to engage in national interest-driven interventions under the guise of humanitarianism. Removing the coercive military component from R2P softens this trade-off. It prevents R2P from being used as an excuse for military interventions driven primarily by national interest. However, without its coercive military component, R2P can still encourage the international community to act in the face of mass atrocities. For instance, Gallagher (2015, pp.1268-1271) highlights the utility of international assistance under pillar two for addressing threats posed by non-state armed groups. 

Coercive military intervention is by far the most contentious part of the R2P doctrine as it is invariably where states’ interests are the most at stake. The use of force ‘will always be politics all the way down’ (Morris, 2013, p.1282). Removing the coercive military component will purge R2P of the most corrosive national interest-driven motives. This will allow the protection of populations to remain the primary objective of R2P implementations. 

Moreover, this will strengthen the consensus around the R2P doctrine. There is widespread agreement on the basic principles of R2P (Morris, 2013, p.1283), even among the BRICS and other sceptical countries (Odeyemi, 2016, p.14). States will no longer fear that the ‘soft’ pillar three actions (such as sanctions) will constitute the thin end of the pillar three wedge, which will be used to open the door for military intervention; a fear that Russia and China have expressed in justifying their vetos on Security Council Resolutions regarding Syria (Morris, 2013, p.1276; 2016, p.206). So, removing its coercive military component will allow for an expanded consensus to build around R2P, solidifying it as an international norm, increasing its breadth of cascade and depth of internalisation among states. This will ultimately lead to more consistent application of R2P and therefore more widespread and systematic protection of populations globally. 

The huge hit that R2P’s credibility took in the wake of the Libyan intervention will be deflected, allowing the doctrine to protect populations from mass atrocities into the future. It will do so by focussing on solidifying the norms around sovereign responsibilities under pillar one, providing support to states to prevent mass atrocities under pillar two, and using nonviolent means to convince states to uphold their responsibilities under pillar three. It is acknowledged that some situations, such as the 1994 Rwandan genocide, do require coercive military intervention to stop mass atrocities from occurring. Therefore, the debate around military intervention should continue outside of the R2P framework, and R2P might still be able to trigger the doctrine that will potentially come out of this debate. The content of this debate is outside the scope of this article, but Ramesh Thakur (2013, p.63) suggests that, since interventions are likely to occur in developing countries, this debate should initially take place between the governments and civil societies of developing countries, and then between developing and developed countries.

Disaggregating the military intervention component of R2P is not a panacea and is likely to be met with significant opposition. Firstly, it does not address any of the concerns about decisions to intervene militarily. However, it does prevent these concerns from impacting the R2P doctrine as a whole, thereby saving the body of the doctrine from normative contamination (Morris, 2013, p.1283).

One counterargument to this disaggregation proposal is that R2P is built on three mutually-reinforcing pillars of equal length (Welsh, 2016, p.5) and that this disaggregation would essentially be to saw off half of pillar three, causing the entire R2P edifice to collapse. R2P was born out of the urge to prevent mass atrocities such as those that occurred in Rwanda and Kosovo, atrocities that would have required military intervention to prevent. So, to remove the military intervention component would be to rob the doctrine of its core content and render it ineffectual in addressing the problems that it was designed to prevent. However, ‘the true essence of R2P is the understanding that sovereignty denotes responsibility rather than license’ (Morris, 2013, p.1283). R2P’s real power is in its normative force to encourage states and the wider international community to ensure that this responsibility is fulfilled (Morris, 2013, p.1283). Moreover, the debate around military intervention would not be jettisoned entirely, just removed from the R2P framework. The (perhaps once reasonable) desire to maintain the conceptual holism of R2P has become a demand for unattainable perfection (Morris, 2013, p.1280). 

Another counterargument is that this proposal would simply be rejected, especially by Western powers. However, there is reason to believe that disaggregating coercive military intervention from R2P would gain wide support in the UN General Assembly (Graubart, 2015, p.218). If this support was not forthcoming, a potential weaker solution could be to remove coercive military intervention from pillar three and make this the fourth pillar of R2P. This may go some way in addressing the problems with R2P that were highlighted by the case of Libya. However, considerations around the conceptual implications of this solution are outside the scope of this article. 

In light of the disastrous humanitarian situation that has resulted from the military intervention in Libya and NATO’s perceived abuse of its mandate, the future of the R2P doctrine is in question. The key lesson that should be drawn from the Libyan case is that the coercive military component must be disaggregated from R2P. The controversial debate around military intervention will rage on, but this solution will salvage the R2P doctrine, strengthening its normative force and, ultimately, allowing for more people to be protected from mass atrocities in the future. 

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India’s stand on the Responsibility to Protect: The UN Security Council and the Libya crisis

By Heena Makhija 

Heena Makhija is a student at Centre for International Politics, Organizations and Disarmament at Jawaharlal Nehru University in Delhi, undertaking an MPhil in International Organizations.

Jawaharlal Nehru’s idealism and commitment to the maintenance of international peace and security has remarkably influenced India’s response towards international conflicts. In the Security Council, in its capacity as a non-permanent member, India has been a supporter of peaceful and responsible policy decisions for conflict resolution. In the past few decades, international intervention in conflict zones for the protection of civilians from war crimes on account of the failure of domestic state machinery has been a matter of debate in mainstream academia. Though India has been one of the largest contributors to the UN Peacekeeping Missions, its approach to the idea of ‘Responsibility to Protect’ has been cautious.

This paper seeks to analyse India’s approach to the principle of ‘Responsibility to Protect’, especially with regard to where it stands in the UN Security Council discussions. The first section traces India’s evolving stance on the principle of ‘Responsibility to Protect’. The second section analyses India’s stance on the use of R2P in Libya and its reasons for abstaining in the UN Security Council voting on the issue of intervention. The third section seeks to evaluate India’s response and strategy after the military intervention in Libya. The concluding section attempts to bring out the lessons India drew from the Libyan experience and its influence on India’s present-day approach to R2P.

Humanitarian intervention, R2P and India 

Though the idea of humanitarian intervention in conflict zones has existed for decades, its conceptualization under the aegis of ‘Responsibility to Protect’ is fairly new. India, given its experience with colonialism, inherited a divided, exploited and dependent society that was vulnerable to internal dissension and external interference (Ayoob, 2004, p. 99). Therefore, India accorded utmost priority to the principles of democracy and sovereignty whilst dealing with international actors. India’s apprehensions were triggered immediately after independence, as when it referred the issue of Jammu and Kashmir to the UN Security Council, instead of a fruitful resolution, Cold War politics shadowed the UN leading to a deadlock. In the light of the Kashmir issue, Indian leadership began to resist approaching multilateral institutions to intervene in conflict areas fearing a threat to its state sovereignty (Ganguly, 2016, p. 363). India’s response to the concept of international intervention in states’ affairs has been fluctuating over the years. In the 1960s, while India was quick to defend its intervention in Goa to drive out the Portuguese by force, on the other hand, it was highly critical of the Anglo-French intervention in Egypt over the issue of the Suez Canal. At the United Nations, India actively caucused with Asian and African nations for supporting the resolution demanding compliance with the UN resolutions and a ceasefire (Nayudu, 2016). Following an idealist and moral approach, while India continued to criticize the Western bloc at international forums for its interventionist policies, India itself came under fire for its semi-interventionist conduct in its immediate neighbourhood. When the domestic turmoil in East Pakistan led to a huge influx of refugees, India argued that Pakistan’s internal conflict had become a grave concern for India’s security (Bass, 2015, p. 232). Indira Gandhi decided to intervene militarily in view of the failure of diplomatic efforts and Bangladesh emerged as an independent nation in 1971. India justified its interventionist role on the grounds of self-defence as Pakistan had initiated the war (Ganguly, 2016, p. 364). India’s armed involvement in East Pakistan in 1971 is viewed as one of the world’s foremost successful attempts at humanitarian intervention against genocide (Mehta, 2011, p. 100). Side-lining its ethical commitment to state sovereignty, India also briefly intervened in Sri Lanka’s civil war between the armed forces and the Liberation Tigers of Tamil Eelam (LTTE) in 1987. Thus, despite its strong commitment to the principle of upholding state sovereignty, India’s stand was based on its own national interest and on the merit of each case. 

However, in the 1990s, several incidents of mass atrocities on civilian populations emerged. As evidence of heinous crimes against unarmed populations started surfacing in the international arena, demands for humanitarian intervention increased. No principled approach or international law existed for handling cases such as Somalia, Rwanda, and Kosovo. Disagreements emerged on whether the international community exercised a right to intervene. If yes, then how should it be carried out and under whose authority? (Evans & Sahnoun, 2002). The ‘Responsibility to Protect’, or the R2P norm, emerged from the International Commission on Intervention and State Sovereignty (ICISS) report in 2001 and was codified in the World Summit Outcome document in 2005 (Bloomfield, 2015). The UN Secretary General’s 2009 Report ‘Implementing the Responsibility to Protect’ placed the three pillars of the R2P principle in the public discourse. Pillar One focused on the protection responsibilities of the state, Pillar Two dealt with international assistance and capacity-building, and Pillar Three enshrined timely and decisive response from the international community (Assembly, 2009). However, international intervention in domestic conflicts for the protection of civilians from genocide, war crimes, and ethnic conflict has been under normative criticism and contestation since its very inception (Mahdavi, 2015, pp. 8-9). 

India approached the principle of R2P with suspicion and caution. Given the international climate that favoured a decisive policy to curtail domestic atrocities, India did not resist the first two pillars of R2P as they were in coherence with India’s foreign policy. India favoured a ‘soft’ approach where policy-makers supported measures such as diplomatic missions and unarmed ceasefire monitoring missions (Bloomfield, 2015, p. 31). However, India rendered strong opposition to the third pillar of R2P, describing it as an unnecessary interference in domestic concerns of a state and a tool of powerful nations to topple over existing regimes and threaten the state sovereignty. Nirupam Sen, Permanent Representative of India to the United Nations until 2009, openly voiced his criticism of the R2P principle in UN meetings and portrayed it as military humanism and re-emergence of humanitarian intervention in a new facet (Teitt, 2012, p. 200).

India’s approach as a UN Security Council non-permanent member and the Libya crisis 

In 2009, Hardeep Singh Puri, the new Permanent Representative of India to the United Nations, took charge and continued to adopt a pragmatic approach to R2P. However, maintaining its firm stand on treating intervention as the last resort, India did accept the peacekeeping principle of PoC (Protection of Civilians) while stressing its preference for Pillar One and Pillar Two of R2P (Bloomfield, 2015, pp. 33-34). India was running for non-permanent membership of the UN Security Council in the forthcoming year, thus flexibility and a pragmatic stance was in coherence with its aspirations. India was selected as a non-permanent member of the Security Council in 2010 with a record result of 187 affirmatives out of 191 votes (Krause, 2016, pp. 24-25).  India entered the Security Council in 2011 as a non-permanent member after a gap of 18 years. Undoubtedly, India wanted to prove itself to be a worthy contender for a permanent seat at the horseshoe table. Adding ‘value’ to the proceedings by acting as an objective bridge between member states and active participation was a necessary medium to strengthen its claim (Mishra and Kumar, 2013). 

At the beginning of 2011, the escalating crisis in Libya was one of the crucial challenges encountered by the Security Council. Rebellion groups under the umbrella of ‘Arab Spring’ that had engulfed the Middle East revolted against Muammar Gaddafi, leading to a civil war in the country (Shrivastav, 2011, p. 3) The matter was brought to UN Security Council’s attention by a faction of revolting Libyan officials as reports of gross violations of human rights and a crackdown on civilians began surfacing. Gaddafi already had a turbulent history as sanctions were imposed over his role in the 1988 terrorist attack on the Pan American Flight 103 (Puri, 2016, pp. 59-60). The public opinion was full of rage and contempt for the Libyan leader and there was ample evidence that mass atrocities were being inflicted on the civilians by the state. 

Resolution 1970 was passed by the UN Security Council on 26th February 2011 after a marathon 12-hour session (Puri, 2016, p. 69). The resolution called for an end to violence in Libya with immediate effect, an arms embargo, and referred the conflict to the International Criminal Court (ICC). India, along with China, Brazil, and South Africa had their reservations about the ICC referral and favoured a calibrated approach of first threatening with a referral in a future date (Puri, 2016, p. 71). Despite the initial reservations, India went ahead and voted in favour of resolution 1970. India’s affirmative stand can be attributed to two major reasons. First, India was at the table after a long hiatus and abstaining or voting negatively on an issue of heinous crimes against civilians while international community including African and Non-Aligned Movement nations favoured strict action, it would have served as a setback for India’s aspirations. Secondly, closer ties with the United States might have had a role to play in shaping India’s decision (Ganguly, 2016).  

In March 2011, the UN Under-Secretary-General stated that the Gaddafi Regime was using heavy artillery and air and naval assets against civilians and rebels (Puri, 2016, p. 81). This marked the onset of an official intervention in Libya through Resolution 1973 and the US encouraged promulgating Chapter VII of the UN charter for authorizing the use of force. Resolution 1973 was adopted by the Security Council on 17th March 2011, with 5 members – Brazil, Russia, China, India, and Germany – abstaining (Puri, 2016, p. 90). Resolution 1973 was one of the most debated and controversial decisions in the history of R2P (Bellamy, 2011). India, though voted in favour of Resolution 1970, abstained from voting on Resolution 1973. In order to understand the reasons behind India abstention, it is necessary to understand the contents of Resolution 1973. As stated in the official press release of the UN Security Council (2011),

Demanding an immediate ceasefire in Libya, including an end to the current attacks against civilians, which it said might constitute “crimes against humanity”, the Security Council this evening imposed a ban on all flights in the country’s airspace — a no-fly zone — and tightened sanctions on the Gaddafi regime and its supporters. Adopting resolution 1973 (2011) by a vote of 10 in favour to none against, with 5 abstentions (Brazil, China, Germany, India, Russian Federation), the Council authorized Member States, acting nationally or through regional organizations or arrangements, to take all necessary measures to protect civilians under threat of attack in the country, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory — requesting them to immediately inform the Secretary-General of such measures.

As Indian representative Hardeep Singh Puri pointed out, India was highly skeptical of the ground realities in Libya and in absence of official clarification it did not want to take any decision in haste. Moreover, the mandate of the UN and ceasefire procedures to be implemented were vague and threatened the sovereignty of Libyans. India was also deeply concerned about the safety of its nationals in Libya, as only a third of them had been evacuated (Puri, 2016, p. 85). Internationally, India did not want to support a resolution that might lead to a regime change and escalate the crisis in absence of any certainty on how a military intervention would shape. Domestic concerns also played a pivotal role in shaping India’s stand. Supporting a precedent that validates intervention might have backfired given the conflicts and secessionist tendencies within India. Also, aiding the Western democracies to intervene in a Muslim state carried a threat of backlash from the Muslim population within India (Ganguly, 2016). Since there was no clarity about the end goals of this operation, it would have been difficult for the Indian government to justify its support for this resolution to its coalition partners and domestic constituencies (Shrivastav, 2011). 

Despite numerous justifications for abstaining on Resolution 1973, some critics consider it to be a lost opportunity where India could have supported the Western powers and substantiated its claim of being a compelling democratic rising power in the international fora (Ganguly, 2016, p. 369). India is also criticized for ‘inaction’ and its unwillingness to take strong decisions and act as a responsible power (Pillai, 2012). However, the critics must take into consideration that not following the West on a resolution that was against India’s ethical foreign policy approach as well as its national interest, India exercised its autonomy in foreign affairs. Moreover, India did vote in favour of Resolution 1970, thus its commitment to the protection of civilians in Libya cannot be questioned (Shrivastav, 2011). Though India had serious concerns about the procedures to be adopted under Resolution 1973, it still abstained from voting rather than putting in a negative vote, thus paving the way for the passing of resolution without acting as a hindrance. A liberal approach of supporting democracy and protection of human rights guided India’s policy as India’s abstention achieved a middle ground – it did not degrade its relations with the West or the Arab world (Bloomfield, 2015, p. 41).

India’s response post-Libya intervention

As soon as Resolution 1973 passed, NATO warplanes surrounded Libyan airspace dropping their lethal arsenal. Indiscriminate bombing and full-scale military intervention made it very clear to the international community that the resolution aimed at regime change rather than putting an end to the cycle of violence.  Resolution 1973 had five major goals – a ceasefire with the mediation of the African Union, use of all necessary means to protect civilians, a no-fly zone, an arms embargo, and targeted sanctions. Notably, with the passing of the resolution, members of NATO side-lined the African Union and the sole focus was on the use of all necessary means by bombing Libya (Puri, 2016, p. 92). Within a month, it became clear to the Indian policymakers that NATO was pursuing a regime change in Libya (Puri, 2016, p. 103).

India was highly critical of the way the operation was unfolding in Libya. In the subsequent Security Council meetings, Indian UN Representative Hardeep Singh Puri was actively denouncing the manner in which Resolution 1973 was being implemented. In a sharp exchange of words in April 2011, he pointed to the Council that the reports showcased arming of the rebel groups by the NATO forces. It was also increasingly clear that the goal of regime change was getting the better of all objectives, but that was neither mentioned per se in Resolution 1973 nor was it approved by the Security Council (Puri, 2016, p. 102). He concluded that Libya gave a bad name and raised serious questions about the credibility of the principle of R2P. Violation of human rights did not appear to be the reason for intervention in the state affairs, rather deeper strategic issues such as oil fields and incompatible leadership emerged as motivating factors for the operation (Khandekar, 2015, p. 121). NATO’s military action in Libya followed the official passage of Resolution 1973, setting a dangerous example on how the official channels were used to authorize an operation that did not end the violence or civil strife in Libya rather it sowed seeds for a turbulent future in the region.

As the Libyan crisis broke out, though India was voicing its opposition, it came under scrutiny within India from media, public, and the opposition who actively analysed India’s stand on the matter. Indian media was quick to point out the direct impact of Libyan crisis on the oil prices and the plight of Indians who were still stranded in the war-torn country (Bloomfield, 2015, p. 9). Policymakers extensively questioned India’s abstention on the resolution. Left-oriented parties with their anti-Western rhetoric saw India’s inability to vote against the resolution as its failure to give structure to its anti-imperial foreign policy ideals (Chishti, 2011). On the other hand, realists pointed out that India might not be willing to intervene directly in the internal affairs of states but its support for the resolution that might stabilize the region would have served its long-term interests in international forums (Rajamohan, 2011). 

It was evidently clear for India that the UN Security Council resolution 1973 was not implemented and formulated in a way that was in sync with the noble cause of R2P. As a policy approach, the Libyan experience brought back India’s serious concerns with Pillar Three of R2P. India did try to mould its position by voting in favour of Resolution 1970, but the aftermath of NATO’s intervention in Libya made India reiterate its initial hostility towards Pillar Three. India’s long-standing scepticism about the Western powers and the limited ability of a military intervention to solve humanitarian crisis were validated by the Libyan experience (Krause, 2016). 

India and the future of R2P

Resolution 1973 advanced the debate on the principle and implementation of R2P. In hindsight, it is possible that the Security Council might not have authorized the resolution had it known that it would be used in a selective manner for military action in Libya (Puri, 2016, p. 103). India’s fears were proven right with the breakdown of the Libyan state after the intervention. During its two-year stint as the non-permanent member of the Security Council, India maintained a calculated and pragmatic approach towards intra-state conflicts. With respect to R2P, India’s lessons learned from Libya’s experience were clearly visible in its approach to the crisis in Syria. It was very evident that critics of the resolution 1973 were not going to throw Syria down the same road. In October 2011, when a resolution to condemn the actions of Bashar-al-Assad in Syria was put for vote in the UN Security Council, China and Russia used their veto and India abstained with a view to prevent any further Western intervention. India was not in denial of the disturbing situation in Syria but wanted to pursue a calibrated approach. It is evident from the fact that under the presidency of India, the UN Security Council issued an initial statement on Syria that condemned the use of force on the civilians by the authorities (Puri, 2016). 

Towards the end of its term, India did vote in favour of putting non-military sanctions against the Assad regime, but Russia and China continue to use their vetoes to block the resolutions. Overall, during its term in the UN Security Council, India depicted active support for the first two pillars of R2P. It never voted in negative and fluctuated between abstaining and voting in favour of the resolutions. India was clear about not endorsing any narrowly worded document that might be twisted by the Western nations as it happened in Libya (Bloomfield, 2015). At the beginning of 2013, with the rise of the Islamic State as the situation in the Middle East took a critical turn, it became evidently clear that the means to implement R2P had not succeeded in Libya. 

If we analyse India’s role in the Libyan conflict and larger debate on R2P, it had been wise on India’s part to remain on the side-lines. Libya was a test case and its outcome rightly hardened India’s aversive stance to the idea of military intervention in conflict zones. It also paved way for a renewed debate on the concept of R2P. India argued that responsibility does not end with a military response. When the principle is applied, it must respect the fundamental aspects of the UN Charter including the sovereignty and integrity of member states (Mishra and Kumar, 2013). Thus, India supported the Brazilian proposal for the ‘Responsibility while Protecting’ (Krause, 2016, p. 35). Protection of civilians from autocratic and abusive regimes is undoubtedly essential, but it should not compromise on the sovereignty and territorial integrity of the state.  

To conclude, India’s initial critical stance towards the principle of R2P softened in the prelude to its membership of the UN Security Council in 2011. Whether it was the international pressure or the desire to take a strong stand, India though maintained its practical demeanour, it did flirt with the idea and partially supported Pillar Three of the R2P. The disastrous outcomes of the NATO intervention in Libya where regime change and Western aspirations overshadowed the positive dimensions that R2P aimed to achieve, brought India back to its calculated and cautious approach. In the post-2012 scenario, India has time and again stressed the anomalies in the system of international intervention aspect of R2P. As a post-colonial state, India, especially after the Libyan experience, finds it difficult to endorse Western interventionist policies. Though India asserts the highest value to the territorial integrity of a state, India’s stand on R2P cannot be consistent and might fluctuate on the case to case basis in the future, keeping in mind its national interest and aspirations (Ganguly, 2016).

Bibliography

UNGA. 2009. A/63/677 Report of the Secretary General, s.l.: s.n.

Ayoob, M. 2004. ‘Third world perspectives on humanitarian intervention and international administration’, Global Governance, 10(1), pp. 99-118.

Bass, G. 2015. ‘The Indian Way of Humanitarian Intervention’. The Yale Journal of International Law, 40(227), pp. 227 – 294.

Bellamy, A., 2011. The Responsibility to Protect: Libya and Beyond. s.l.:s.n.

Bloomfield, A., 2015. ‘India and the Libyan Crisis: Flirting with the Responsibility to Protect, Retreating to the Sovereignty Norm’, Contemporary Security Policy, 36(1), pp. 27-55.

Chishti, S., 2011. Colonel’s End. s.l.:Indian Express.

Evans, G. and Sahnoun, M. 2002. ‘The Responsibility to Protect’. Foreign Affairs, 81(6), pp. 99-110.

Ganguly, S. 2016. ‘India and the Responsibility to Protect’, International Relations Volume, 30(3)p. 363.

Khandekar, R. 2015. ‘India and the Responsibility to Protect’s Third Pillar’, in: The Responsibility to Protect and the Third Pillar. London: Palgrave Macmillan .

Krause, D. 2016. It is changing after all: India’s stance on ‘Responsibility to Protect’. Observer Research Foundation, Issue Occasional Paper 90.

Mahdavi, M., 2015. A Postcolonial Critique of Responsibility to Protect in the Middle East. Perceptions , 10(1), pp. 7-36.

Mehta, P. B., 2011. Do new democracies support democracy? Reluctant India. Journal of Democracy , 22(4), pp. 97-109.

Mishra, S. and Kumar, K. S. 2013.’ India’s Two Years at the Horseshoe Table’. Institute for Defence Studies and Analyses, pp. 1-10.

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Pillai, R. 2012. India’s Libya Shame will haunt It. s.l.:The Diplomat.

Puri, H. S. 2016. Perilous Interventions: The Security Council and Politics of Chaos. Delhi: Harper Collins Publisher, India.

Rajamohan, C. 2011. It’s not West vs the rest. s.l.:s.n.

Shrivastav, S. K. 2011. India’s Response to the Libyan Crisis. Institute for Defence Studies and Analyses, 13 April.

Teitt, S. 2012. ‘Paper Tiger or Platform for Action? South Asia and the Responsibility to Protect’. In: A. Knight & F. Egerton, eds. The Routledge Handbook of the Responsibility to Protect. London: Routledge.

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Challenging the Establishment: A discussion regarding the normative status of the Responsibility to Protect

Nikita Sinclair, University of Leeds, UK

Nikita Sinclair graduated with a BA in Politics and Parliamentary Studies from the University of Leeds in 2016.

Focusing on norms as “an aspiration for a new reality” (Ralph and Souter 2015, p. 68), the Responsibility to Protect (R2P) appears established, as the “normative aspiration” it represents is almost universally accepted (Ralph and Souter 2015, p. 68). Characterised as “a disarmingly simple idea”, R2P aims to embed the notion that “sovereign states have a responsibility to protect their own populations” from the four atrocity crimes of genocide, war crimes, ethnic cleansing, and crimes against humanity, advocating that this responsibility must be upheld by the international community if a state can or will not fulfil this duty (Bellamy, 2015, p. 2). With widespread support for the 2005 World Summit Outcome Document (WSOD) and continued commitment demonstrated through annual UN General Assembly debates, the suggestion that R2P is an “established ideal” seems robust (Evans, 2016). However, when considering R2P as a norm indicating “an existing social reality” (Ralph and Souter, 2015, p.68), there is far more contestation. Like much of the academic literature (Badescu and Weiss, 2010; Knight, 2011; Negrón-Gonzales and Contarino, 2014; Shawki, 2011), this essay focuses on this second concept. According to Finnemore and Sikkink’s (1998, p. 904) influential Norm Life Cycle theory, an established norm would exhibit third stage internalisation, demonstrated by the habitual adherence of actors. Dominant debates within the literature characterise R2P as an emerging norm between stage one (emergence) and two (cascade) of the Norm Life Cycle, hence suggesting R2P has not yet reached the status of established norm; automatic conformity appears a distant aspiration.

However, this assessment appears impacted by the high expectations placed on R2P, creating an “expectation gap” between idealised prospects and capabilities (Gallagher 2015, pp. 5-6). The tendency to view “applications in practice and examples of compliant behaviour” (Badescu and Weiss 2010, p. 357) as evidence of norm establishment means consistent intervention is seen as testimony for R2P’s consolidation. As suggested by Luck (2010), assessment is dependent on whether we view the spirit of R2P to be “state’s commitment to prevention and protection” or “legitimation of a military response to mass atrocity crimes” (p. 118). If we agree with Luck’s (2010) first statement and suggest “the true essence of R2P is the understanding that sovereignty denotes responsibility rather than licence” (Morris 2015, p. 1283), this may enable us to manage expectations surrounding the concept. Rather than focusing on intervention, it is more appropriate to view R2P as the “responsibility to consider a real or imminent crisis involving mass atrocity crimes” (Welsh 2013, p. 368). Henceforth, this essay will highlight four factors which constitute unrealistic demands, restricting our ability to perceive R2P as an established norm. These include the expectation of linear development, emphasis on consistent application, lacking appreciation of competing international norms, and overconcentration on pillar three. These aspects limit our nuanced consideration, feeding into the unrealistic expectation level. This must be managed to enhance standing, focusing on the potential of Welsh’s (2013) notion of the responsibility to debate action.

Expectation of linear norm development 

If we base our assessment on Finnemore and Sikkink’s Norm Life Cycle theory, it seems R2P has not yet reached the third stage of internalisation where norms “achieve a “taken-for-granted” quality that makes conformance with the norm almost automatic” (1998, p.904). This linear model presents norm development as a process where entrepreneurs shape and promote the norm, which is gradually adopted by recipient states (pp.900-901). R2P has engendered a variation of responses; including acceptance, misapplication, localisation and feedback (Negrón-Gonzales and Contarino, 2014, p.259). Following the linear model, this suggests R2P has not yet reached cascade stage, as there is significant contestation indicating the norm is still being shaped (Badescu and Weiss, 2010; Knight, 2011; Shawki, 2011). However, although influential, Finnemore and Sikkink’s (1998) model has since been challenged, as it promotes a “moral cosmopolitanism view of norm diffusion” which fails to explore the crucial role of local actors (Acharya, 2004, p.242). The Norm Life Cycle model appears too simplistic, suggesting dispute signifies a norm must be stuck in stage one. This ignores the notion that “norms are not objective truths, but rather inter-subjectively held beliefs” which continue to be debated and transformed through practice and according to context (Welsh, 2013, p.380). Acharya’s (2013, p.469) “norm circulation” theory provides a more complex explanation, highlighting a “two-way process” of diffusion where global norms are shaped through their localisation and feedback. Norms are not passively adopted by norm-takers, but tailored to fit local needs and contexts (Acharya, 2013, p.467). Hence, assessment based on the Norm Life Cycle model produces an unrealistic expectation for R2P’s development, suggesting it should diffuse in a clear linear fashion until it appears established as an automatic impulse. By adopting this concept, the agency of states is portrayed as evidence that the norm is still developing. Instead, the input of states should be seen as part of a continual process of norm circulation, rather than a boundary to consolidation. Feedback, such as Brazil’s proposal of ‘Responsibility while Protecting’, should not be framed as exemplifying that the norm is still emerging; rather this illustrates Brazil is embracing the core normative value of protecting populations (Negrón-Gonzales and Contarino, 2014, pp.267-268).

Emphasis on consistency

Many within the literature highlight the inconsistent application of R2P as evidence the norm is not internalised (Capie, 2012; Hehir, 2013); it is still reliant on strategic calculations based on national interest and political will. Negrón-Gonzales and Contarino’s (2014, p.262) study demonstrates that for salient states who are likely to be impacted by R2P events, support is primarily influenced by national interest calculations. This can lead to inconsistencies in state responses, with countries such as India displaying a “normative ambivalence”, reflected in its voting record in relation to Libya and Syria (Negrón-Gonzales and Contarino, 2014, pp.264-266). India has held a shifting position on these two cases, initially voting in favour of Resolution 1970 which highlighted Libya’s own responsibility, but abstaining on Resolution 1973 which proposed military intervention (p. 266). Moreover, in response to Syria, India abstained on numerous resolutions before supporting sanctions in July 2012 (p.267). This incongruity could suggest R2P is not yet established, as its application is still impacted by political vested interests.  Furthermore, UN Security Council (UNSC) discussions on invoking R2P obligations can be presented as fuelled by political will, rather than an internalised normative dedication to the concept. For Hehir (2013, p.137), UNSC action in Libya and inertia in Syria demonstrates that R2P does not impact state behaviour; in actuality the UNSC is just continuing with its “record of inconsistency”. Libya exemplifies this, and is “best understood as an instance where humanitarian necessities converged with political will” (Loiselle, 2013, p.341). The support of regional institutions, such as the League of Arab States, was viewed as integral to securing abstaining votes from China and Russia; demonstrating how the political context was a key factor in enabling the passage of Resolution 1973 (Hehir, 2013, p.149). For Hehir (2013, p.137) this is characteristic of the UNSC, with Libya representing a rare instance “of resolve and timely action” which should be accredited to political will, rather than the normative strength of R2P. These inconsistencies promote the argument that compliance has not become automatic, hence R2P cannot be deemed fully established.

However, this evaluation of inconsistency is once again influenced by the great expectations placed on R2P which shroud comprehensive understanding (Gallagher, 2015). In relation to a Pillar III case of military intervention, paragraph 139 of the 2005 WSOD specifically calls for consideration “on a case-by-case basis” and “in a timely and decisive manner, through the Security Council” (United Nations General Assembly, 2005, p.30). This highlights how inconsistency is in-built into R2P; the policy enshrines a commitment to consider all cases on an individual basis, encouraging a cost-benefit analysis to ascertain whether intervention is an appropriate route (Gallagher, 2015, p.13). Therefore, the assertion that R2P is limited by its varying application must be refuted; this only fuels an irrational expectation that a Pillar III response should be invoked immediately when a state fails to prevent one of the four crimes (Gallagher, 2015, p.8). Hence, as inconsistency is embedded in R2P, it should not be seen as measurement for norm consolidation. Irregularity in application should not be problematic, so long as the UNSC demonstrates a coherent approach (Gallagher, 2015, p.13). Arguments made by the likes of Capie (2012, p.83) exemplify this demanding expectation, viewing Vietnam’s position on R2P as highly selective with support for pillar 3 “much more cautious, calling only for the UNSC to review such incidents on a case by case basis”. Vietnam’s position clearly matches the ‘case-by-case’ requirement outlined in the WSOD, yet Capie (2012) characterises this as an example of limited support. This illustrates how a lack of understanding about R2P places high demands on this normative concept, which in fact contradict one of its key components, the case-by-case consideration. If we tackle this misconception, inconsistency may come to signify that R2P is alive; actively influencing UNSC discussion on individual cases, rather than inciting claims of the norm’s demise.

Lacking appreciation of competing international norms

Moreover, the requirement of consistent application fails to appreciate that R2P does not operate in a vacuum, it exists amongst other normative and non-normative considerations which also have a valid impact on states’ behaviour (Welsh, 2013, p.388). It is unreasonable to suggest R2P should be the core motivating factor as it is not the only norm at the table. Morris (2015, p.400) highlights the UNSC’s “special dual responsibility” comprising the “original obligation to preserve international peace and security” with the R2P norm. This has engendered an “acute normative tension” as the Council must weigh up these two duties which are often found in contradiction (Morris, 2015, p.421). UNSC deliberations regarding R2P should be understood in light of this dual tension; rather than exemplifying the lacking normative clout of R2P or inciting claims that the UNSC is merely fuelled by duplicitous political motives (Morris, 2015; Welsh, 2013). Furthermore, since 2005 the debate has not focused on whether the UNSC has the right or responsibility to protect, but rather how to respond; the existence of a responsibility is not disputed (Marlier and Crawford, 2013, p.409; Morris, 2015, p.209). In this sense, the grounding element of R2P appears uncontested in the UNSC; the norm appears established as it continues to engender debate over how to fulfil our responsibility to protect. Still, decisions over how to respond are influenced by a range of factors, from capability to the protection of international order. Promoting an appreciation of this fact may help to temper the unrealistic demands placed on R2P, enabling us to view the consideration of the R2P norm amongst others as evidence of established practice.

Overconcentration on Pillar III 

Finally, as Pillar III is deemed most controversial, it has received greatest attention with the aspect of military intervention at the forefront of discussions. This overconcentration on pillar three places intervention at the focal point of assessment, encouraging a reductive analysis of the norm’s development (Shawki, 2011, pp.180-186). This phenomenon is demonstrated by academic discussion of Libya and its impact on Syria which has focused on the current reluctance to support intervention by force, suggesting R2P is “woefully short of forward momentum” post-Libya (Morris, 2013, p.1277). However, the primacy of pillar three was never intended, illustrated by Ban Ki-Moon’s (2009, p.2) assertion that R2P “relies on the equal size, strength and viability of each of its supporting pillars”. Therefore, Pillar III should not be deemed as a more important measure for norm consolidation; greater focus should be placed on the non-coercive pillars to foster more manageable expectations (Shawki, 2011, p.189). It should be clear that “R2P should not be seen narrowly; it is not only about the use of military force and is not a synonym for ‘‘humanitarian intervention”” (Badescu and Weiss, 2010, p.367). What is truly at the root of R2P is a requirement to debate how the norm should be realised in practice (Welsh, 2013, p.387). With a wide range of responses available in the R2P toolbox, it is inappropriate to base our assessment of the norm’s trajectory upon what course of action is followed (Welsh, 2013, p.387). By framing the essence of R2P as a “duty of conduct” (p.387) to identify cases involving the four crimes and consider the range of possible responses, Welsh (2013) may provide a useful antidote for the illogical focus on intervention. By this assertion, R2P could be seen as established so long as the UNSC upholds this “responsibility to consider a real or imminent crisis involving mass atrocity crimes” (Welsh, 2013, p.368). This represents a far more realistic expectation for the norm, rather than promoting ambitious assertions such as Luck’s (2010, p.123) claim that “neither an encouraging debate, a consensus resolution, nor even a summit-level declaration constitutes a consolidated norm”. With extensive R2P measures available, it is irrational to focus on the one tenant of military intervention by force; this restricts our understanding of R2P’s broader implications. As the debate and discussion of implementing R2P is an aspect which is relevant for all R2P-defined cases, this is a sensible indicator to assess its robust nature. Therefore, by focusing on R2P as a “duty of conduct” rather than a norm of intervention, we may reach the assessment of ‘established norm’ (Welsh, 2013, p.387).

Conclusion

The idealist aspirations underpinning R2P may appear as universal and established. However, when assessing R2P as “an existing social reality” (Ralph and Souter, 2015, p.68), there is a larger debate to unpack. Following Finnemore and Sikkink’s (1998) Norm Life Cycle model, R2P would most likely be classified between emergence and cascade, disputing the claim it is established. However, this assessment seems impacted by the tendency to “demand too much” from the R2P concept, with a slightly hyperbolic “birth/death narrative” used to mark the norm’s perceived rise or demise (Gallagher, 2015, pp.255-256). Hence, this essay has explored four key areas where unrealistic expectations of R2P must be managed, in order to uphold its position as a consolidated norm. Firstly, the Norm Life Cycle model promotes an unachievable expectance for linear norm diffusion, which does not show an appreciation for more contemporary models of norm circulation (Acharya, 2004; 2013). Secondly, the tendency to discredit R2P based on inconsistency is tackled, demonstrating how inconsistency is in fact a requirement and hence should not be used as criticism. Moreover, this condition for consistency fails to appreciate how other global norms conflict with R2P; it does not operate in a vacuum and so constant application may not be possible. Finally, the preoccupation with pillar three is cited as another damaging expectation; R2P includes an extensive list of possible actions and assessment should not be based on the most controversial of these. By engaging with these four arguments, this essay attempts to reign in the overwhelming standards placed on R2P, potentially enabling the norm to be viewed as established. Ultimately, to uphold this perception, we must adopt a more rational and appropriate assessment such as that proposed by Welsh (2013), which suggests debate and discussion on R2P should be seen as indication that the norm is intrinsically shaping behaviour.

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Shortcomings of the ‘Responsibility to Protect’: An Analysis of the Saudi-led Coalition Intervention in Yemen

Melly Hu, King’s College London, UK

Melly Hu is a current International Conflict Studies MA student at King’s College London. She holds a BA degree in Economics and Communication from the University of Washington. Her previous professional background includes experience in the investment management and digital marketing fields.

More often than not, the subject of international intervention seems to exist in a state of paradox. Due to the lack of an international response, tragedies such as the Rwandan genocide are allowed to occur. Conversely, the international community is also held culpable when the perception is that too much action had been taken, such as in Libya. When the United Nations created the ‘Responsibility to Protect’ (R2P) doctrine, it aspired to address the need for human protection in armed conflicts (but not only) in the most altruistic manner. However, for states fraught with mass atrocities, R2P brings to light the limitations of its impact as well as its intentions. Today, the situation in Yemen represents a case worth analysing through the lens of R2P.

The Yemeni Civil War began in 2015 between the Houthi rebel movement forces seeking to reinstate former President Ali Abdullah Saleh and the government forces of current President Abdrabbuh Mansour Hadi. The deadly crisis has since affected millions of Yemenis who are currently facing a humanitarian disaster in the war-torn country. When the Saudi-led coalition was formed that same year, the prospect of an international intervention was welcomed in the hope of ending the civil conflict and stabilising the country. Now, more than a year on from the coalition’s first air campaign, Yemen is in an increasingly worsening state, with millions of civilians either displaced or in desperate need of humanitarian assistance (GCR2P, 2017). To blindly accept Riyadh’s actions as R2P activism is optimistic, if not naïve. Although the concept of R2P is encouraging progress towards improving human protection, the international intervention in Yemen calls into question R2P’s infallibility from misuse.

This paper will proceed in the following parts. The first section of this essay will contextualize the design of R2P by briefly summarising its inception and its core assumptions regarding international intervention. The second section will examine some of R2P’s major design flaws that leads to a polysemous interpretation of this principle, hindering its ability to establish normative best practices during international interventions. This ultimately gives way for states to exploit the doctrine to their best interest, as Saudi Arabia is doing. The third section will assess how Riyadh’s incursion into Yemen is exacerbating the conflict and explores underlying motivations for its involvement, further illustrating that its actions do not conform to the expectations of what R2P was created to achieve. The paper will conclude that R2P has serious shortcomings that render it vulnerable to abuse in the self-interest of states, especially in international interventions.

Background and Core Assumptions of the ‘Responsibility to Protect’

The ‘Responsibility to Protect’ principle was first introduced into the United Nations in 2005, adopted by all the Heads of State and Government and has been reaffirmed several times since. R2P consists of three pillars that are “equally weight[ed] and nonsequential”: 1) states hold the responsibility to protect their populations from mass atrocities such as genocide, war crimes, ethnic cleansing, and crimes against humanity; 2) the international community has the obligation to assist and encourage states to meet that responsibility; 3) when a state has failed to protect its citizens, the international community holds the responsibility to take timely and decisive action to prevent the mass atrocities from occurring (GCR2P, 2017).

The first and foremost concern in the introduction of R2P was its potential infringement upon Westphalian state sovereignty. The principle was criticized as being a liberal cosmopolitanism agenda, used by major Western powers to impose their ideals and power over ‘weaker’ states (Kurtz and Rotmann, 2015, p. 6). To counter, UN Secretary-General Ban Ki-moon (2008) stressed that “R2P is an ally of sovereignty, not an adversary”, by placing the primary responsibility of protection on the state concerned. However, the fact that the pillars are equally weighted and nonsequential, as stated above, demonstrates otherwise, as Pillar III then legitimizes intervening states to ‘meddle’ (Badescu and Weiss, 2010, p. 361). Nonetheless, in the evolution of the R2P norm, the anti-imperialist view (primarily held by Venezuela, Belarus and Cuba that asserts state sovereignty should be preserved without fail) conceded to the prevalent agreement that action should indeed be taken in the wake of mass atrocities. More than a decade later from R2P’s conception, the matter of establishing a norm for best practices is still an issue at hand.

While liberal cosmopolitanists support R2P as it is in alignment with their desire for “increasingly strong and comprehensive international treaties and institutions”, the realist approach is sceptical of the states’ “conflicting interests of power” (Chandler, 2014, p. 65; Kurtz and Rotmann, 2015, p. 12). From the latter perspective, the concern is that states could abuse “humanitarian justifications for other political interests, such as regime change” (Kurtz and Rotmann, 2015, p. 15). Especially regarding international military interventions, Paris (2014, p. 572-573) claims that “decisions to use armed force almost always involve a mix of motives, including self-interest”. This is especially applicable in Yemen’s case, as it could be argued that the driving force behind Riyadh’s decisions is primarily (if not exclusively) self-interest, masked behind thinly-veiled altruism.

At the core of R2P is the fundamental assumption that centers on human protection. For the purposes of analysing R2P, Ban Ki-moon (2011) has differentiated human protection from the larger concept of human security; human security includes the security of states, while human protection “addresses more immediate threats to the survival of individuals and groups”. While there is less debate about whether or not human protection should take place, there is still disagreement on how it should manifest operationally. Notably, Pillar III of R2P requests action to be taken by the international community when the situation requires it. Although the UN has stressed a “strong preference for dialogue and peaceful persuasion”, Pillar III also encompasses coercive action (United Nations – Report of the Secretary-General, 2009).  While coercive measures could include “political, economic, or judicial steps,” most states tend to interpret it as coercive military action (Evans and Sahnoun, 2002, p. 103). This poses a challenge because, as Thakur (2013, p. 61) points out, “the use of force – no matter how benevolent, enlightened, or impartial in intent – …is inherently controversial”. Recalling the case in Libya, the heavy bombardment in civilian-populated areas “did not look, resemble, or feel, like humanitarian protection” (Dunne and Gifkins, 2011, p. 516). Therefore, whether the use of force is an asset or a liability to human protection remains tentative; the case of Yemen, however, seemingly demonstrates the latter.

Another assumption is the expectation that no state is ever exempt from R2P. Since adopting the principle in the 2005 UN World Summit, states have been bound to this permanent duty. Therefore, Bellamy (2013, p. 10) concludes, “the question is never one of whether or not RtoP ‘applies’ – because this wrongly implies that there are situations in which states do not have a responsibility to protect their populations – but of how best to realise its goals in any given situation”. Indeed, this assumption that holds this perpetual burden over states invokes a whole set of challenges. As the UN chose to implement R2P without requiring explicit oversight, who is to say what the ‘best’ way to act in an international intervention? This in turn also poses additional challenges to establishing normative standards in practice.

Implementation Flaws of R2P

Although the implementation of R2P happened in rapid succession from when it was first introduced, it was not without adjustment before reaching a consensus from member states. First, early drafts of the doctrine had to be revised in order to appease some permanent member states (in particular China and Russia). Ban Ki-moon ultimately ‘softened’ the language in the doctrine, settling for a universal feel that did not bend favour to Western states (Bellamy, 2010, p. 145). Any mention of the International Criminal Court, condemnation of torture, or sexual violence again women and children were ultimately not included in the final draft. In addition, the UN has admitted that the doctrine’s language does not effectively “grapple with the practical implementation of protection standards” (UN Security Council Report, 2005). Consequently, the final agreed-upon language of R2P was less specific than earlier drafts of the doctrine, rendering it more liable to manipulation. More importantly, how the discourse is used continues to be an influential factor in shaping the international norm of R2P, as will be exemplified in the case of Yemen.

Second, Ban Ki-moon also rejected including any guidelines on the decisions to use force by states in the case of an international intervention that has not been mandated by the UN Security Council (Bellamy, 2010, p. 143). The implication to leave this clause out is that states can then proceed with independent decision-making as well as freedom from UN oversight. Although states favoured this because it respected principles of state sovereignty, it does not lend any progress towards establishing a norm for the use of coercive measures under R2P. Both of these concessions will ultimately result in the outcome of how the intervention in Yemen was justified.

Finally, Bellamy (2010, p. 143) additionally calls for attention to the inconsistent manner in which the principle has been applied, citing Russia’s intervention in Georgia (where there were no apparent mass atrocities) to contrast the lack of action taken by the international community in countries where mass atrocities have been ascertained such as Somalia or Iraq. Termed “selectivity of engagement” by Kurtz and Rotmann (2015, p. 16), the discrepancies in the use of forceful interventions result in what appears to be a double standard, further feeding the realist view that states will only involve themselves when there is self-gain. Indeed, Riyadh has some obvious ulterior motives that serve in its best interests that will be explored in the following sections.

Riyadh’s R2P-style Rhetoric as Justification for the Intervention in Yemen

Riyadh might have considered these identified limitations of R2P when it made the decision to intervene militarily. In Yemen’s case, R2P was not formally invoked by the UN but it nevertheless was an important aspect when Riyadh announced its justification for the intervention in Yemen. On March 25, 2015, Riyadh issued a statement to announce the launch of its military intervention into Yemen as its ‘responsibility’ to “protect the people of Yemen and its legitimate government from a takeover by the Houthis” (Saudi Ambassador Al-Jubeir, 2015). Announcing the next phase of the campaign, the Saudi-led coalition’s goals again were “continuing to protect civilians, continuing to fight terrorism…and to intensify relief and medical assistance to the Yemeni people” (Abdul, 2015).

Although the statements used rhetoric associated with R2P, any mention of the ‘mass atrocities’ occurring in Yemen that explicitly allows international intervention to act on behalf of the concerned state is glaringly absent. Amidst all of the recognized ambiguities of R2P, surely the clause to protect civilians from mass atrocities should be clear. It is no coincidence that Riyadh has omitted any inferences to mass atrocities; it would have undoubtedly drawn more international criticism towards the hard-line air campaigns that it conducted indiscriminately toward civilian areas, rendering it more difficult to justify the intervention on the grounds of R2P.

From Riyadh’s perspective, it could be reasoned that they were simply acting upon what the R2P doctrine had asked of the international community, in a both timely and decisive fashion. Yemen was already on the brink of collapse due to the ongoing civil war, thus Riyadh viewed itself as the much-needed proponent to defeat the Houthi rebels and end the war, ultimately ‘protecting’ Yemenis (Perkins, 2016, p. 314). Moreover, the international community – including U.S., UK, and France – has affirmed its support for the Coalition, further corroborating Riyadh’s rationale. While critics deduct that political and economic interests, in terms of weapons sales and oil trade, are the primary reasons for Western support of the intervention, Saudi Arabia is nevertheless emboldened by the lack of international criticism for its coercive operations. In essence, the very same doctrine that was designed to protect civilians has equally protected Riyadh’s from international condemnation.

Assessing Riyadh’s Underlying Motivations for the Intervention

Beyond Riyadh’s rhetoric, the actual military behaviour in the course of the intervention also raises doubt that the Coalition is acting on behalf of R2P principles. Since the beginning of the Coalition’s aerial bombardment in March 2015, Human Rights Watch (2016) have reported up to 4,000 civilians killed and another 7,000 wounded. In addition, schools, markets, and hospitals have all been targeted by the airstrikes led by Saudi Arabia. The situation seems to take a turn for even worse when reports of child soldiers being armed by Saudi Arabia emerged. This is in addition to the grave humanitarian crisis that over 80% of the population in Yemen is faced with – both Houthi and Coalition forces have been accused of restricting food and medical supplies from civilians (Human Rights Watch, 2016). As the number of civilian deaths, injuries, and displacements continue to rise, it is becoming more and more apparent that the international intervention led by Saudi Arabia is exacerbating the conflict.

Assuming the cynicism from a realist perspective, the logical inclination is to infer that Riyadh has ulterior motives other than the responsibility of protecting civilians in its interventionist goals. First, the geostrategic location of Yemen is of paramount importance to Saudi Arabia. As part of the Arabian Peninsula and sharing a border with Saudi Arabia, Yemen’s instability would threaten the flow of the five million barrels of Saudi oil exports per day that pass through the Arab Gulf (Cordesman, 2015, p. 11). Additionally, sustainable stability will ensure that the war does not spill over from its coterminous neighbour as well as prevent any surge of refugees into Saudi Arabia. As long as Saudi’s wealth depends on its oil exports, its geopolitical interests will remain a priority in its grand strategy.

The high geopolitical stakes at hand then lead to the belief that the larger strategy and motive for the Saudi intervention is to establish hegemony in the Middle East. As Iran is Saudi Arabia’s greatest competitor for regional dominance, the mutual contention between the two states therefore manifests as a race to exert their respective influence over the other less powerful states in the region. Not only is Iran excluded from the Saudi-led Coalition, Iran stands allegiant to the Saudi-opposed Houthi rebels. In this regard, dictating the outcome of the civil war will result in a Yemeni government favourable to the respective state. Since Yemenis have long enjoyed employment opportunities in the oil-rich Saudi Arabia, they already hold a “strong incentive to defer politically to Saudi Arabia” (Okruhlik and Conge, 1997, p. 558). Thus, the escalation of the civil war was then “sufficient for Saudi Arabia to seek patronage” for Yemen, much in the same way it holds political leverage over Bahrain (Matthiesen, 2013, p. 29).

Along with political and economic implications, there is also a religious aspect to the rivalry. While both Iran and the Houthi rebels are Shia majority, Saudi Arabia is overwhelmingly Sunni. Thus, the struggle for the control of the jurisdiction of Yemen has become a proxy war over influence of the Muslim world. With Yemen under Riyadh’s control and ultimately reinstating the ousted President Abdrabbuh Mansur Hadi, Saudi Arabia would gain leverage over Iran. While sectarian conflicts in the Middle East are not uncommon, the strife over Yemen illustrates a case of political sectarianism in which the political economy of the Gulf is inseparable from sectarian affiliation (Matthiesen, 2013, p. 8).

Returning to the matter of R2P, it would be problematic to view Riyadh’s actions in Yemen without larger consideration of its overarching political goals. From a realist point of view, the existence of a legitimizing doctrine such as R2P has only made it easier to justify the Coalition’s aggressive military intervention for the sake of self-gain. However, this is not to say that Riyadh’s actions are absolutely barren of human protection interests, only that there are pre-existing motivations that cannot be ignored in the assessment of the intervention.

Conclusion

Despite the shortcomings of R2P, the creation of the doctrine has brought about significant progress for human protection. The purpose of this analysis is not to suggest that R2P is a doomed concept nor was it to blame Saudi Arabia for Yemen’s ongoing civil war. By critically evaluating the Saudi-led coalition’s military intervention, it becomes apparent that the design of R2P is susceptible to misuse. As Kurtz and Rotmann (2015, p. 19) summarize, “the strategic use of the R2P concept to frame and justify certain diplomatic or military interventions underscores the pitfalls of vague principles in international politics”. The implications reach far beyond the war in Yemen; generally, when there is a flexible normative structure for policy on an international level, exploitation is likely to occur. In summary, R2P should be taken as a dynamic doctrine that the international community collectively continues to critique, develop, and ultimately, improve.

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The Responsibility to Protect in Africa: Normative Progress or Sound and Fury Signifying Nothing?

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.

Conclusion

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.

Bibliography

Abass, A. in Cotler, I. and Genser, J. 2012. The Responsibility to Protect: The promise of stopping mass atrocities in our time. New York: Oxford University Press.

Ban, K. 2009. ‘Implementing the Responsibility to Protect’, Report of the Secretary-General. Available from: http://responsibilitytoprotect.org/SGRtoPEng%20(4).pdf

Ban, K. 2011. ‘The role of regional and sub-regional arrangements in implementing the responsibility to protect’, Report of the Secretary-General. Available from: http://www.un.org/en/ga/president/65/initiatives/Report%20of%20the%20SG%20to%20MS.pdf

Bellamy, A.J. 2014. The Responsibility to Protect: A Defense. Oxford: Oxford University Press.

Bellamy, A.J. 2015. ‘The Responsibility to Protect Turns Ten’, Ethics & International Affairs29(02), pp. 161–185.

Deng, F. 1996. Sovereignty as Responsibility: Conflict management in Africa. Washington, DC: Brookings Institution Press.

Evans, G.J. 2008. The Responsibility to Protect: Ending mass atrocity crimes once and for all. Washington, DC: Brookings Institution Press.

Evans, G.J. in Cotler, I and Genser J. 2012. The Responsibility to Protect: The promise of stopping mass atrocities in our time. New York: Oxford University Press.

Finnemore, M. and Sikkink, K. 1998. ‘International norm dynamics and political change’, International Organisation, 52(4), pp. 887-917.

Gallagher, A. 2015. ‘The Responsibility to Protect Ten Years on from the World Summit: A call to manage expectations’, Global Responsibility to Protect, 7(3-4), pp. 254-274.

Gallagher, A. and Ralph, J. 2015. ‘The Responsibility to Protect at Ten’, Global Responsibility to Protect, 7(3-4), pp. 239–253.

Hehir, A. 2013. ‘The permanence of inconsistency: Libya, the security council, and the responsibility to protect’, International Security38(1), pp. 137–159.

Hehir, A. 2010. The Responsibility to Protect: ‘Sound and Fury Signifying nothing’, International Relations24(2), pp. 218-239.

Orchard, P. 2016. ‘Regionalizing protection: AU and ASEAN responses to mass atrocity crimes against internally displaced persons’, Global Responsibility to Protect, 8(2-3), pp. 295–326.

Ralph, J. and Souter, J. 2015. ‘A special responsibility to protect: the UK, Australia and the rise of Islamic State’, International Affairs, 91(4), pp. 709-723.

Thakur, R. 2016. ‘The Responsibility to Protect at 15’, International Affairs, 92(2) pp. 415-434.

United Nations General Assembly. 2005. ‘World Summit Outcome Document’. Available from: http://www.un.org/womenwatch/ods/A-RES-60-1-E.pdf

Welsh, J.M. 2013. ‘Norm Contestation and the Responsibility to Protect’, Global Responsibility to Protect, 5(4), pp. 365–396.

Williams, P. 2009. ‘The “responsibility to protect”, norm localisation, and African international society’, Global Responsibility to Protect1(3), pp. 392–416.

Pillar II in Mali: Endless Interference or Making a Difference?

Katie Gabriel, University of Leeds, UK

Katie is a final year undergraduate at the University of Leeds studying International Relations, with a particular interest in the Responsibility to Protect.

On 25 December 2012 under Resolution 2085, the Responsibility to Protect (R2P) commitment was invoked by the United Nations Security Council (UNSC) in reaction to the mounting crisis in Mali (UNSC, 2012). The Resolution permitted an African-led support mission in Mali (AFISMA), which later converted into the Multidimensional Integrated Stabilization Mission (MINUSMA) under Resolution 2100 (Global Centre for R2P, 2013; UNSC, 2013). As it was the Malian government who requested the international assistance, the nature of the mission falls under Pillar II of R2P.

The previous United Nations Secretary General, Ban Ki-moon, identified three broad categories of intervention under Pillar II, (a) “encouraging states” to fulfil their Pillar I obligations, (b) capacity building to “prevent atrocity crimes”, and (c) “assisting states to protect in situations of emerging or on-going crisis” (UNSG, 2014, p. 8). Although Ban Ki Moon’s interpretation of Pillar II evidently encompasses a range of attractive components, the Mali crisis exposes its broad character as overreaching, especially considering R2P’s short lifespan.

This essay is divided into the following sections: firstly, a brief overview of the Mali crisis and how R2P has been invoked to assist Mali’s government in fulfilling its Pillar I responsibilities; secondly, an evaluation of R2P’s short-term contributions in Mali; and thirdly, an evaluation of R2P’s long-term contributions in Mali. Ultimately this essay argues that R2P has made a difference, although the evaluation is far from straightforward. In particular, it questions whether Pillar II, while offering a ‘broad umbrella’ of assistance (Gallagher, 2015, p. 1264), has such a broad scope that it in fact damages its ability to make a long-term difference in humanitarian crises. Finally, it also questions whether R2P has actually had the time to have a prolonged impact on Mali.

The Mali Crisis and Pillar II

In March 2012, a military coup took place against the Malian government, resulting in the formation of a transitional government. In the midst of such political instability, the ethnic Tuareg separatist group, the National Movement for Liberation of Azawad (MNLA), seized the Northern part of Mali (Global Centre for R2P, 2013, p. 11). They were followed by a number of armed Islamist groups, who then side-lined the MNLA. These groups have been accused of committing offenses listed under the R2P, which covers four crimes: genocide, war crimes, ethnic cleansing and crimes against humanity.

The intervention was originally an African-led military intervention headed by the Economic Community of West African States (ECOWAS) and the African Union (AU). Nevertheless, when Islamist groups threatened to progress towards the South, Mali’s Interim President requested immediate military assistance from the French (Global Centre for R2P, 2013, p. 12). Since then, other European states have also contributed assistance through MINUSMA.

In relation to the Mali crisis, the first category under Pillar II is less controversial because the government requested international assistance. Therefore, this essay primarily focuses on the second and third categories. The second category, titled ‘capacity building’, is aimed at the prevention of the four crimes by helping states to identify, manage, and prevent the risk factors that may lead to the outbreak of atrocity crimes (ICRtoP, no date). Ban Ki-moon specified two sets of capacities; the first is aimed at creating “effective, legitimate, and inclusive governance”, and the second is directed at strengthening institutions and actors within a state so that they can prevent the escalation of crises (UNSG, 2014, p. 10). This includes political institutions, the legal system, security sector, and the media (ICRtoP, no date). The third category under Pillar II, titled international assistance or protection assistance, represents a ‘toolbox’ (Gallagher, 2015, p. 1264). It includes expertise in dispute resolution, human rights monitoring, law enforcement and criminal investigation, protection of refugees and the internally displaced, and protection of civilians in humanitarian emergencies (ibid). Undeniably, Pillar II offers a diverse set of useful tools to assist states with protecting its populations from the four crimes, not simply in the short-term, but over an extended period.  Nevertheless, the second section of this essay questions whether Pillar II’s broad scope provides opportunity to protect populations and prevent mass atrocities, or whether it simply sets expectations too high, ultimately undermining R2P’s credibility. Beforehand, it is important to discuss R2P’s more immediate successes in Mali.

The short-term 

This first section addresses why R2P should be considered as having made a significant difference in the Mali crisis. The primary area of success has been the military intervention from the French, the European Union (EU), and MINUSMA. European counterparts provided a vast range of military equipment such as troops, arms, aircrafts, intelligence, and engineering capacities. MINUSMA, for instance, was composed of 11,200 military personnel and 1,440 police personnel at full capacity (ICRtoP, 2015). This was the third largest UN peacekeeping mission, with an approved six-month budget of US$367 million. The European Union Training Mission for Mali (EUTM Mali) also included 550 staff, 200 instructors, and a 15-month budget of €23 million (Weiss & Welz, 2014, p. 898). This demonstrates a huge international response and commitment to the protection of Mali’s populations. It was also a successful military campaign in the short term. The French intervention alone forced Islamist groups out of Timbuktu, Kidal, and Gao. The primary aims of Resolution 2100 were a “strong commitment to the sovereignty, unity and territorial integrity of Mali” and “swift action by the French forces, at the request of the transitional authorities of Mali” (UNSC, 2013, p. 1). The primary aims of the mission therefore reflected the central tenets of Pillar II: state sovereignty and ‘swift and decisive’ action taken by the international community (Gallagher, 2015, p. 1272). However more importantly, both of these aims were achieved. Due to the successful efforts of the interveners, the main population centres of the North were regained in “just a few weeks” with the exception of Kidal (Karlsrud, 2016, p. 791).  Furthermore, the mission successfully protected Malian populations from war crimes and crimes against humanity such as rape, amputations and executions (Human Rights Watch, 2012). These outcomes suggest a considerable difference has been made.

In addition to military assistance, multi-lateral efforts by the AU, ECOWAS, and the UN were made to address political, security, human rights and humanitarian concerns (UNSG, 2013, p. 3). The European Union also created the Capacity Building Mission in Mali, a civilian mission to “deliver strategic advice and training to the three internal security forces in Mali – the police, the gendarmerie, and the national guard” (Karlsrud & Smith, 2015, p. 4). Further, the European Union Training Mission for Mali (EUTM Mali) included training on human rights, international humanitarian law, and the protection of civilians (Global Centre for R2P, 2013). And finally, aside from the EU’s efforts, the AU and ECOWAS successfully deployed 50 human rights monitors to Mali alongside 30 monitors from the UN (ibid). Therefore, it can be concluded that Pillar II’s third category, its ‘toolbox’ of international assistance, was effectively utilized to tackle the Mali crisis in the short-term.

However, the enactment of R2P in Mali could be criticised for its slow orchestration and weak implementation. Although there are strong grounds for this argument, the reasons for the mission’s slowness do not lie with R2P in principle, rather they lie with the various different components of the mission beyond its control. The first is the dangerous nature of the mission, whereby the interveners were dealing with non-state armed groups, not violence committed by the State. Reports found the environment encountered by MINUSIMA “became more challenging than most other UN peacekeeping missions”. They faced many “ambushes, complex attacks, and other asymmetric and terrorist tactics, such as suicide attacks and improvised explosive devices (IEDs)” (Karlsrud & Smith, 2015, p. 4). Although R2P was originally a state-based principle; parallel to non-state armed groups becoming more prominent, Pillar II has become more relevant as a potential framework for tackling these groups. The Mali crisis proves that governments may seek international assistance to protect their populations from groups committing the four crimes under R2P, highlighting Pillar II’s potential for taking on this role (Gallagher, 2015, p. 1270). The new, and highly dangerous environment posed by Mali may have hindered the speed and effectiveness of the mission. Nevertheless, R2P was not designed with the intent to tackle non-state armed groups. Therefore, the overall success of the military interventions should be recognized for their ability to adapt to new threat types. To turn this question around, the crisis in Mali could be argued as having made a notable difference to the future use of R2P, as it has demonstrated its capacity to tackle non-state armed groups with some future improvement.

The second reason for slow and weak implementation can be pinned to the lack of cooperation between the interveners. Bank Ki-moon once stressed the importance of “partnerships” when invoking R2P. Indeed, multilateral approaches contribute to the effectiveness and legitimacy of any intervention (UNSG, 2014, pp. 6-7). Still, without “a harmony of interests” they can be counterproductive (Gallagher, 2015, p. 5). Thomas Weiss and Martin Welz found there were tensions between the AU and ECOWAS over who should lead AFISMA to begin with, largely because the AU became involved after ECOWAS and “had to play catch up” (2014, p. 890). After the later transfer from AFISMA to MINUSMA, tensions surfaced between the AU and the UN. The AU felt sidestepped by the UN when “essential deliberations and decisions were made” (Weiss and Welz, 2014, p. 898). Conversely, the UN and European counterparts became frustrated over the cooperation of troops from the AU and ECOWAS. It was claimed they were inadequately trained and ill-equipped for such a mission (ibid). Again, this helps to emphasize the challenging environment facing the interveners. Although incorporating regional actors within R2P missions is essential; without an upgrade in capacities across the African continent, these “partnerships” will always face difficulties. ­ Jennifer Welsh wrote that “while regional organizations are often touted as the legitimate and preferred actors in crises such as Mali, they cannot always fulfil their mandate. Capacity and politics get in the way” (Welsh, 2013). From this, it can be concluded that in Mali, the incorporation of regional actors hindered R2P’s implementation. Again, this could be argued is no fault of R2P in principle. Nevertheless, if “partnerships” are to become a vital feature of R2P missions, work should be undertaken to prevent the same occurrences in future crises.

In spite of the disagreements between interveners, and the complexities of the mission, the primary aims of the mission, alongside the central tenets of Pillar II, were still successfully achieved. Therefore, this essay holds the firm view that R2P has made a difference in Mali.

The long-term

Despite the short-term successes, the mission has been further criticised for failing to address the root causes of the crisis, subsequently failing to make an overall difference. This section is going to address these concerns, with the overriding view that R2P is not set to deal with such underlying problems. Or if it is, then it certainly is not able yet.

The Malian government’s call for renewed assistance in January 2015 indeed signals that R2P has failed to have an enduring effect in Mali (Gallagher, 2015, p. 1272). While the intervention was able to dissipate the mass violence, restore democratic elections and aid refugees, major concerns persist over the reality of the situation. Malians have since specified many failings of its ‘restored democracy’, such as “systemic corruption, a failing and corrupt judicial system, weak political parties and no opposition, and… lack of civility within communities” (Wing, 2013, p. 479). In the months leading up to the March 2012 coup there were forestalled presidential elections, a Tuareg rebellion, and a resentful military (Wing, 2013, p. 476). Since, the interveners have helped orchestrate the election of a new president and assembly; however, there are claims that it remains ‘business as usual’ (Gallagher, 2015, p. 1272). People are still protesting against the “poor governance performances of state officials” (Vliet, 2014, p. 66). Wing (2013) argues that if Mali’s dysfunctional political system continues, “it is unlikely peace and democracy will return”. In addition to the democratic deficit, there remains the on-going conflict between the Malian government and the ethnic Tuareg’s (Wing, 2013; Wing, 2013, p. 476). This conflict is known to be “one of the fundamental causes of the crisis”, yet it “remains to be addressed” (Global Centre for R2P, 2013).

It is not hard to refute that the root causes have been addressed by R2P, as the entirety of the evidence suggests it has not. However, should R2P be faced with such issues? The premise of the principle is to react and protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity (UNGA, 2005, p. 30). It was not created to then combat the vast multitude of deeply rooted issues that perhaps trigger those four crimes, such as weak and corrupt political systems, poor legal systems, and food insecurity. For instance, although the UNSG put forward capacity building as a category within Pillar II, its duties completely breach the four crimes R2P was employed to tackle. As previously mentioned, capacity building may range from introducing educational initiatives, opportunities for dialogue, supporting political institutions and the media, to establishing truth commissions. Not only does it encompass a range of protective measures, its primary focus is towards prevention. Prevention represents a whole other dimension of R2P. Critics such as Thomas Weiss argue that prevention “is superficially attractive but highly unrealistic way to try and pretend that we can finesse the hard issues of what essentially amounts to humanitarian intervention” (2012, p. 113). Doing so increases expectations and sets R2P up for inevitable failure, as it lacks the capacity to tackle such intricate and complex problems. Further, prevention obscures “the most urgent part of the spectrum of the responsibility: to protect those caught in the crosshairs of war” (ibid). As highlighted in the first section, the ‘most urgent’ purpose of R2P was achieved in Mali; its ‘territorial integrity’ was restored and the mass violence dramatically decreased.

Furthermore, the third category, protection assistance, also encompasses a broad range of measures, including dispute resolution, humanitarian intervention, and military intervention. Both categories have opened up the floodgates to an overwhelming and diverse set of eventualities. Even without the preventative dimension of capacity building, the range of protective measures remains ambitious. Consequently, the overreaching scope of Pillar II has created a sense of disillusionment over what R2P is able to achieve. Such disillusionment and high expectations will inevitably damage R2P’s credibility. Before increasing Pillar II’s range of responsive measures, perhaps efforts should be directed towards finessing the more pressing issues surrounding R2P’s implementation. This could include ensuring cooperation amongst the intervening bodies, or strengthening R2P’s capabilities to protect populations from non-state armed groups.

Finally, if Pillar II should in fact represent this ‘broad umbrella’ of both preventative and protective measures, could we not then question whether R2P has had adequate time to make a difference in Mali over a long period? John Karlsrud points out that the intervention under R2P can only be considered a “short-term success” (2016, p. 791). However, after only five years since the crisis began, of course R2P can only be considered a short-term success, it certainly cannot be labelled as anything else. Finding a sustainable solution to the fundamental causes of the crisis, such as a settlement between the Malian government and the Tuaregs, may take decades to achieve. Not only did the crisis take place five years ago, but R2P itself is only twelve years of age (Bellamy, 2015). Again, expectations must be managed over R2P and what it is able to achieve at present.

Meanwhile in Mali, the UNSC renewed the mandate of MINUSMA in June 2015, the EUTM Mali is still in place, and steps are being taken to strengthen Malian capacities through supporting the justice sector and addressing corruption (Human Rights Watch, 2015). If we are to accurately measure the extent R2P has made a difference in Mali, perhaps we should allow it the chance to do so first.

Conclusion

This essay has clearly identified the positive achievements of the French, AFISMA, and MINUSMA military campaigns, indicating their notable successes. Besides military assistance, the interveners effectively tapped into some of Pillar II’s ‘toolbox’ to provide humanitarian assistance and human rights training, allowing for a more rigorous resolution to the crisis. Whether or not R2P has made a difference long-term by dealing with the deeply embedded causes of the conflict is where this question loses clarity. Mali’s ‘restored democracy’ remains highly dysfunctional, reeking with corruption and nation-wide discontent, as well as the on-going tensions between the government and the ethnic Tuaregs. Nevertheless, this essay has questioned whether R2P should have to address these issues, because they stretch far beyond the four crimes it was engineered to combat. I have specifically contested the inclusion of ‘capacity building’ within Pillar II of R2P on the grounds that it distracts focus away from the four crimes, and opens R2P up to another dimension of prevention. Even without the second, the third category alone contains an ambitious set of protective measures. On the other hand, this essay has argued that if in fact Pillar II should be employed to deal with such intricate and longstanding issues, it is far too early to judge R2P’s long-term potential.  With this in mind, this essay concludes that R2P has made a significant difference to Mali in the short-term: partly because of the swift humanitarian successes and partly because we have not yet entered the long-term.

Bibliography

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Gallagher, A. 2015. ‘The Promise of Pillar II: Analysing International Assistance Under The Responsibility to Protect’, International Affairs 91(6), pp. 1259-1275.

Global Centre for R2P. 2013. Mali: Global Centre for the Responsibility to Protect. [Online]. [Accessed 15/02/2017]. Available from: http://www.globalr2p.org/regions/mali

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Human Rights Watch. 2015. Mali: Events of 2015. [Online]. [Accessed 19/02/2017]. Available from: https://www.hrw.org/world-report/2016/country-chapters/mali

International Coalition for the Responsibility to Protect. [No date]. Clarifying the Second Pillar of the Responsibility to Protect: Building State Capacity to Protect Populations from Atrocity Crimes. [Online]. [Accessed 2/03/2017]. Available from: http://responsibilitytoprotect.org

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Ki-moon, B. 2014. Fulfilling Our Collective Responsibility: International Assistance Under the Responsibility to Protect. Available from: http://responsibilitytoprotect.org/N1446379.pdf

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The AK-47, the Responsibility to Protect and the Arms Trade Treaty

Simon Adams, Global Centre for the Responsibility to Protect, New York/Geneva

Dr Simon Adams is the executive director of the Global Centre for the Responsibility to Protect. 

When we think of the Holocaust our mind slips inexorably towards dismal images of cattle cars stuffed with people, or to gas chambers, crematoria and the cruel irony of the “Arbeit Macht Frei” gate. But of the six million Jews killed during the Holocaust over a million were shot with rifles and other small arms. They were not killed in concentration camps, but were murdered in fields or forests and pitched into mass graves hastily dug outside villages in Nazi-occupied Eastern Europe. Before Auschwitz, Sobibor or Treblinka, the Holocaust began with bullets.

The same is true of most mass atrocity crimes carried out since 1945. From the killing fields of Cambodia to the mass graves of Srebrenica and the burnt villages of Darfur, most of the killing was done with rifles and other small arms. It is for this reason that there is an enduring connection between preventing mass atrocities and confronting the international arms trade.

Despite mistakes and setbacks over the last twelve years, the UN World Summit’s 2005 adoption of the Responsibility to Protect (R2P) was a historic turning point in the battle against indifference, inaction and impunity regarding mass atrocity crimes. Since then we have made undeniable progress with regard to the idea that sovereignty entails responsibility. Our failures in Syria and Sri Lanka (to mention just two) have been catastrophic. But the international community has also had success in preventing atrocities or deploying peacekeepers to disrupt and deter perpetrators in the Central African Republic, South Sudan and a number of other conflicts. Politics in the real world is never without blemish, but R2P continues to save lives.

The Global Centre for the Responsibility to Protect works closely with the UN Security Council in New York, and with the Human Rights Council in Geneva, to push the international community to consistently uphold its preventive and protective responsibilities. But this is not just a question of providing early warning of developing risks in Burundi, the Philippines, or elsewhere. There is also a need to advance R2P via practical initiatives that undermine the ability of atrocity perpetrators to access the global market in lethal weaponry.

For example, the AK-47, or Kalashnikov, is the most popular weapon in the world today, with an estimated 70 million AK-47s currently in existence (Wilkinson, 2013). Numerous countries manufacture local variants of the ubiquitous assault rifle and while a new Chinese-made AK-47 might cost you $500, you can easily purchase one in many former conflict zones for as cheap as $50. When I lived in Johannesburg during the mid-1990s, leftover AK-47s from the civil war in Mozambique were still making their way through the townships, and some entrepreneurial gangs were even renting out their AK-47s to other aspiring criminals at an hourly rate.

There are many reasons for the AK-47’s enduring popularity. A fully loaded AK-47 weighs less than five kilograms (11 lbs) and is simple to operate. Among its other dubious attributes, this means that despite its lethality the AK-47 can be easily used by a child soldier. The AK-47 does not require much cleaning and it rarely jams, making it a superior killing machine.

During the 1960s and 70s, the AK-47 was the weapon of choice for freedom fighters across the developing world. Following a bitter anti-colonial war, in 1975 the new government of Mozambique even emblazoned an AK-47 on their national flag. I listened to my fellow anti-apartheid activists sing about AK-47s in South Africa during the 1990s. And while AK-47s undoubtedly helped many nations achieve liberation from colonialism, these days it is more often a weapon of mass destruction, especially in Africa.

In the civil wars in Somalia, Liberia and Sierra Leone the AK-47 was omnipresent. It has also been highly visible in recent armed conflicts in the Central African Republic, Mali, Sudan and South Sudan. In the Democratic Republic of the Congo, the UN has previously reported that at least ten variants of the AK-47 were circulating amongst the various militias and armed groups who were killing civilians. It has been estimated that there are still at least 300,000 guns in the Congo, not counting those officially in the hands of the army, police and peacekeepers (GRIP and BICC, 2012).

Meanwhile in the Middle East the proliferation of AK-47s and other weapons has been especially noticeable in Iraq, Syria and Yemen. When the so-called Islamic State seized Mosul in June 2014 they became the direct beneficiaries of decades of irresponsible arms flows into Iraq. The atrocities of so-called Islamic State fighters are committed mainly with weapons looted from Iraqi military stocks and previously provided by the United States, Russia and more than two dozen other countries (Amnesty international, 2015).

Overall, the legal global arms trade is now worth an estimated $100 billion annually. According to the respected Stockholm International Peace Research Institute (SIPRI), between 2012 and 2016, the five biggest arms exporters in the world were the United States (33% of all exports), Russia (23%), China (6.2%), France (6%) and Germany (5.6%). More than a quarter of these armaments were exported to the Middle East. The fact that four of the top five arms exporters in the world are also permanent members of the UN Security Council, a body mandated to maintain international peace and security, is unconscionable. Especially when one considers how much the issue of conflict in the Middle East has dominated the Council’s agenda.

Syria, in particular, has been a source of bitter division amongst the permanent members of the Security Council since 2011. According to SIPRI, Russia was the source of 78% of all of the Syrian government’s weapons at the time of the start of the civil war. This means that for the past six years, the government of President Bashar al-Assad has been killing civilians and committing atrocities with Russian-made bullets, rifles, rockets, bombs, tanks, mortars, artillery and attack helicopters (Reuters, 2012). Many of these came to Syria via Rosoboronexport, Russia’s main international arms exporter. Other states have also been providing weapons to President Assad’s enemies as the civil war, and the arms trade that sustains it, shows no signs of abating.

Meanwhile in Yemen, since March 2015 civilians have faced relentless bombing by a Saudi-led military coalition and ongoing attacks by Houthi rebels. Both sides have targeted civilian infrastructure and directly contributed to what the United Nations now considers to be one of the greatest humanitarian catastrophes in the world. Saudi Arabia, in particular, has faced harsh criticism for airstrikes in Yemen that appear to have directly violated international law. But this has not stopped the United States, another permanent member of the Security Council, from recently agreeing to a $110 billion arms contract with Saudi Arabia, despite objections from human rights organisations (Malsin, 2012). Indeed, Washington has celebrated this projected arms transfer as “the single largest arms deal in US history” (Sean Spicer, 2017).

Beyond fighter jets and guided missiles, the annual legal trade in small arms and light weapons, including AK-47s and other assault rifles, is now worth more than $8.5 billion a year, involving more than a thousand companies around the globe (Chelule, 2014). An estimated 12 billion bullets are also manufactured each year, enough to shoot every person on this planet (Oxfam, 2012). It is for this reason that the Global Centre for the Responsibility to Protect and other human rights organizations have advocated for an arms embargo to be imposed on South Sudan, Syria and other countries where governments use public funds to buy weapons and ammunition to commit atrocities against their own people.

History teaches us that the proliferation of small arms and light weapons dramatically increases a state’s risk for genocide, war crimes, ethnic cleansing and crimes against humanity, a point explicitly made in the UN’s Framework of Analysis for Atrocity Crimes. This is also recognised in UN Security Council resolutions 2117 and 2220 on the arms trade. The growing threat of violent extremism in many parts of the world today also highlights the significant risks to civilians when fragile states and permeable borders allow for the illicit trade in assault rifles and other deadly weapons. Boko Haram, the so-called Islamic State, and various other non-state armed groups benefit from the global market of cheap weapons and plentiful ammunition. The ultimate price of this illegal commerce is paid for by the populations these groups prey upon.

It is for these reasons that we have urged all UN member states to ratify and implement the Arms Trade Treaty (ATT) (Adams, 2015). The ATT was the result of a long campaign by both states and civil society to constrain the arms trade and prevent weapons from falling into the hands of terrorists, transnational criminals and governments who may use them commit mass atrocities and other human rights abuses. Our partners at Amnesty International (2012), who helped lead the ATT campaign, pointed out that it was absurd that the global trade in bananas was more rigorously regulated than the trade in AK-47s and other conventional weapons.

Since the ATT entered into force during December 2014, at least 130 states have become signatories and 89 have ratified the Treaty. Any academic or student who is committed to mass atrocity prevention should check if their government has ratified the ATT (see UN Office for Disarmament Affairs). If they have, they should be held to its commitments. If they have not, then there is an obvious need for further public pressure.

In the very first issue of this R2P Student Journal, my friend and colleague Alex Bellamy (2016) wrote that:

R2P is not a self-fulfilling norm. It is a statement of shared expectation – a commitment of what the world ought to do in order to end genocide and mass atrocities once and for all. We all have a role to play and the choices each of us make will shape whether or not things change for the better…

Like Professor Bellamy I am glad that this academic journal and the R2P Student Coalition exists. These are troubling times. There are currently an estimated 65 million people in the world displaced by conflict, atrocities and persecution. But if my own past experience as an activist of the international anti-apartheid movement and a former member of the African National Congress taught me anything, it is that cynicism and complacency have never prevented a single mass atrocity and will not change anything. What the world desperately needs is a new generation of students and scholars who not only critically engage with R2P, but will also become human rights activists and advocates. I hope the authors, editors and readers of this journal will take past lessons in mass atrocity prevention to heart, and turn these words and ideas into action.

Bibliography

Adams, S. 2015. ‘Remarks at Ministerial Side-Event Small Arms and Light Weapons: The Real Weapons of Mass Destruction. New Dynamics in the Fight Against Illegal Trafficking of Small Arms’, Global Centre for the Responsibility to Protect, Available from: Global Centre for R2P at a Ministerial side-event hosted by Germany during the UN General Assembly in 2015: http://www.globalr2p.org/media/files/gcr2p-september-2015-small-arms-and-light-weapons.pdf

Amnesty International. 2012. ’Amnesty International Stages New York City “Bananafesto” Action in Times Square June 27, Ahead of Historic Arms Treaty Talks at United Nations’, Available from: https://www.amnestyusa.org/press-releases/amnesty-international-stages-new-york-city-bananafesto-action-in-times-square-june-27-ahead-of-historic-arms-treaty-talks-at-united-nations/

Amnesty International. 2015. ‘Iraq: ‘Islamic State’ atrocities fueled by decades of reckless arms trading’, (8 December 2015), Available from: https://www.amnesty.org/en/latest/news/2015/12/islamic-state-atrocities-fuelled-by-decades-of-reckless-arms-trading/

Bellamy, A. 2016. ‘Fulfilling the Promise of R2P: Our Shared Responsibility, The Responsibility to Protect Student Journal1(1), Available from: http://r2pstudentjournal.leeds.ac.uk/issues/n1vol1/fulfilling-the-promise-of-r2p-our-shared-responsibility/

Chelule, E. 2014. ‘Proliferation of Small Arms and Light Weapons: Challenge to Development, Peace and Security in Africa’, Journal of Humanities and Social Science19(5), pp. 80-87

GRIP and BICC. 2010. Study on the Proliferation of Small Arms in Congo (DRC) – Etude sur la prolifération des armes légères en République Démocratique du Congo, Available from: http://www.cd.undp.org/content/dam/dem_rep_congo/docs/demgov/UNDP-CD-ETUDE-PROLIFERATION-ARMES-LEGERES-ALCP.pdf

Malsin, J. 2012. ‘The Big Problem with President Trump’s Record Arms Deal with Saudi Arabia’, Time, Available from: http://time.com/4787797/donald-trump-yemen-saudi-arabia-arms-deal/?xid=homepage

Oxfam. 2012. ‘Ammunition trade tops $4 billion yet little regulation to control and keep track of who bullets are sold to’, Available from: https://www.oxfam.org/en/pressroom/pressreleases/2012-05-30/ammunition-trade-tops-4-billion-yet-little-regulation-control-and

Reuters. 2012. ‘Syria arms imports surge, most provided by Russia’, (19 March), Available from:  http://www.reuters.com/article/us-arms-syria-idUSBRE82I09Y20120319

Spicer, S. 2017. Official Twitter Account, (20 May 2017), Available from: https://twitter.com/PressSec/status/865937500610723841

Stockholm International Peace Research Institute. no date. ‘International Arms Transfers’, Available from: https://www.sipri.org/research/armament-and-disarmament/arms-transfers-and-military-spending/international-arms-transfers

UN Security Council. 2013. S/RES/2017, Available from: http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_res_2117.pdf

UN Office for Disarmament Affairs. 2017. ‘The Arms Trade Treaty: Basic Facts’, Available from: https://www.un.org/disarmament/convarms/att/

Wilkinson, S. 2013. ‘AK-47: Weapon of the Century, Military History,30(3). pp. 28-35

The Responsibility to Protect in the Libyan Intervention: Ultimate Success or International Failure?

Caitlyn Duke, The University of Queensland, Australia

Caitlyn is a third year BA/LLB student at the University of Queensland, Brisbane, Australia, majoring in Peace and Conflict Studies. She works as a Paralegal in the Projects team at King&Wood Mallesons.

The 2011 intervention in Libya was the first time the United Nations Security Council (UNSC) authorised the use of force, couched in the norm of the Responsibility to Protect (R2P), against the wishes of a functioning state. This application of R2P, implemented through UNSC Resolution 1973 and led by the North Atlantic Treaty Organisation (NATO), was ultimately a failure. Although the NATO forces succeeded in protecting Libyan civilians from the violent regime, the motivations behind the intervention were not aligned with the ideological principles of the R2P norm, as NATO intervened with the intention to overthrow Muammar Gaddafi’s authoritarian regime. This paper will seek to first explain the R2P norm, followed by a consideration of the political environment within which it was applied in Libya in 2011. It will conclude with a critical analysis of NATO’s interpretation of UNSC Resolution 1973.

Assessing the Responsibility to Protect Success in Libya

UNSC resolution 1973 is considered by many (see Garwood-Gowers, 2013) to be a key example of R2P in action. Formally defined by the International Commission on Intervention and State Sovereignty (ICISS) in 2001, the R2P is ‘premised on the idea that sovereign states not only have the primary responsibility to protect their peoples, they also have a collective extra-territorial responsibility to protect populations from mass atrocities everywhere’ (Nuruzzaman 2013, p.58). In 2005, when the recommendations of the ICISS report and the notion of R2P were formally debated by the UN General Assembly, the norm was refined to ‘the responsibility to use appropriate diplomatic, humanitarian and other peaceful means … to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’ (United Nations General Assembly 2005, paragraphs 138-39). Further, in January 2009 a report by the Secretary-General titled Implementing the Responsibility to Protectoutlined a three-pillar strategy for advancing the agenda mandated by the Heads of State and Government at the 2005 Summit: Pillar I is ‘the enduring responsibility of the State to protect its populations’, Pillar II, ‘the commitment of the international community to assist states in meeting those obligations’, and Pillar III denotes ‘the responsibility of Member States to respond collectively in a timely and decisive manner when a State is manifestly failing to provide such protection’ (UN General Assembly, 2009,  A/63/677).

According to Thakur, ‘Libya, in 2011, provided an opportunity to convert the noble sentiments and solemn promise of R2P into meaningful action’ (2011, p.15). It was thus through the lens of the refined definition that the UNSC passed Resolution 1973, which authorised Member States to ‘take all necessary measures’ to protect civilians who were under threat of imminent attack in Libya, and also implemented a no-fly zone over the conflict areas of Libya (UN Resolution 1973). Although there is no explicit reference to R2P in the operative provisions, the preamble to the resolution states that the UNSC ‘reiterates the responsibility of the Libyan authorities to protect the Libyan population’ (UNSC, 2011).  This sets the tone for a clear theme of R2P throughout the operative provisions of the resolution.  Importantly, Resolution 1973 was the first time the UNSC authorised intervention without host state consent (Bellamy, 2011).[1]

The swift implementation of UNSC Resolution 1973 was necessary as the situation in Libya was continually deteriorating. The 2011 Libyan crisis was essentially an uprising against the regime of Colonel Muammar Gaddafi, who had led Libya for over forty years after a successful military coup on 1st September 1969 (Joffé, 2013). Gaddafi led Libya via a political system of his own creation known as a Jamahiriya (a ‘state of the masses’), whereby the people were theoretically sovereign (Joffė, 2011). Libyan citizens governed by expressing their views at small local gatherings and voting on matters at Basic People’s Congresses, which would then progress to the national General People’s Committee. However, in practice, only 10 per cent of Libyan people exercised their right of direct democracy over the Libyan body politic (Joffé, 2013). Through this system, Gaddafi technically had no ‘political, administrative, and traditional duties’ (Hajjar, 1980, p.185), yet he still ruled Libya with an iron fist, made all important decisions himself, and retained all power within a small state elite (Vandewalle, 2011). Brahimi explains that the ‘the formal administrative structures [of the Jamahiriya] merely served as vehicles for executing the policies that emerged from the informal structures controlled by Gaddafi’ (2011, p.607). Colonel Gaddafi’s novel system of governance is critical to an analysis of the pre-conflict environment because Libya had no formal centralised government, thus there was no avenue for democratic accountability or opposition to the oppressive regime. Further, it was difficult for the UN to negotiate an R2P operation under the Secretary-General’s proposed second pillar of R2P, assistance, as Colonel Gaddafi was not formally the sovereign leader of Libya. This meant that Gaddafi, in his self-proclaimed position as Guide of the Revolution, was the most powerful person in the Jamahiriya while simultaneously being the most sheltered (Hajjar, 1980, p.198). Yet, as Brahimi states, ‘there was some irony to the fact that Colonel Gaddafi’s regime was brought to the brink of collapse by the sort of popular grassroots politics he himself had rhetorically championed’ (2011, p.605).

The violent civil war in Libya began with peaceful demonstrations by the Libyan people, which were heavily influenced by the Arab Spring protests spreading from Tunisia to Egypt and beyond (Bellamy, 2011, p.838). The difference was that rather than surrender power, as the leaders of Tunisia and Egypt had done, Gaddafi responded with force (Daalder, 2012). The protests began after human rights lawyer Fathi Terbil was arrested on February 15th, Terbil himself explaining in a BBC interview that the demand for rights grew once ‘the security services used violence to deal with the demonstrators, killing or wounding many of them’ (Terbil, 2011). This violent response of the Libyan government soon escalated, with reports that the regime’s forces were ‘using tanks and warplanes against the demonstrators, and executing those officers who refused to deploy the instruments of the state against its people’ (Brahimi, 2011, p.606). Further, the UN Office of the High Commissioner for Human Rights (OHCHR) reported on ‘ill-treatment, beatings, injuries, rapes, torture, killings, enforced disappearances and arbitrary arrests of protesters including lawyers, human rights defenders and journalists’ (Ulfstein, 2013, p.159).

It became clear to the international community that the situation had reached critical levels when Gaddafi began to employ genocidal language, described by some as the ‘most candid statements of the kind from any government since the Rwandan genocide of 1994’ (Lynch, 2011, p.68). During an address on national television, Gaddafi proclaimed, ‘officers have been deployed in all tribes and regions so that they can purify all decisions from these cockroaches’ and ‘any Libyan who takes arms against Libya will be executed’ (ABC, 2011). It was evident from the government’s continued violent actions and the utilisation of such language, that the security of the Libyan people was at risk. The UNSC passed Resolution 1970 on February 26 2011, which called on Member States to make available humanitarian assistance in Libya, and ‘expressed its readiness to consider taking additional appropriate measures as necessary to achieve that’ (United Nations, 2011). But it was not until Resolution 1973 that the UNSC authorised action under the third pillar of the R2P.

By adopting Resolution 1973, the UNSC sought to protect the Libyan population, one of the core principles of the R2P. NATO, as a coalition of Member States, had the authorisation to act under the mandate of this resolution, and as such was the primary body enforcing its provisions (Ulfstein Geir, 2013). In the wake of the Libyan conflict, the New York Times, describing the operation as a ‘true alliance effort’, reported,  ‘NATO’s success was swift – saving tens of thousands of Libyan lives, grounding Gaddafi’s air force, and watching Libya’s coast’ (Daalder and James, 2011). The timely response was effective, directly correlating with the Pillar III obligation to initiate R2P operations in a timely and decisive manner. Then US Representative to the UN, Susan Rice, agreed, stating ‘I can’t remember a time in recent memory when the Council has acted to swiftly, so decisively, and in unanimity on an urgent matter of international human rights’ (cited in Dunne and Gifkins, 2011, p.522). NATO weakened the Gaddafi forces through repeated attacks, greatly assisting the rebel’s efforts. On this basis, the operations in Libya succeeded in ‘protecting civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya’ (UN Security Council, 2011), as was mandated in the resolution.

Unfortunately, the alleged success of the NATO operation in Libya is undermined by the underlying agenda behind the intervention. After resolution 1973 was passed by the UN, Gareth Evans wrote in a newspaper column:

Legally, morally, politically and militarily [the intervention] has only one justification: protecting to the extent possible the country’s people… When that job is done, the military’s job will be done. Any regime change is for the Libyan people themselves to achieve (Evans, 2011)

In spite of this assertion, the NATO forces appear to have been fighting not solely to protect the Libyan population, but to ultimately remove the Gaddafi regime. NATO interpreted Resolution 1973 as giving permission for a wide range of military activities. Within forty-eight hours of the resolution being passed, armed forces from the US, France, Britain, Canada and other NATO members conducted aerial bombings against Libyan military and intelligence corporations, which continued daily for the next eight months (Keating, 2013). The bombings were widespread and received continuing criticism for their severity. Russia, in particular, brought attention to the civilian casualties that resulted from the air strikes, while China expressed a similar dissatisfaction with an ‘arbitrary interpretation’ of the Resolution (Bellamy and Williams, 2011, p.31).

NATO was also clearly in favour of a regime change because of their explicit support of the rebels’ efforts. Not only were rebel forces trained in combat by French and British intelligence agencies and foreign military advisors (Ulfstein, 2013), but French forces also allegedly provided arms to Libyan rebels. These actions were deemed by the Russian Foreign Minister to be ‘a very crude violation of UN Security Council Resolution 1970’ (BBC News, 2011), which had established an arms embargo for Libya. In March, an opinion piece in the New York Times reported that ‘Western powers were now attacking the Libyan Army in retreat, a far cry from the UN mandate to establish a no-fly zone to protect civilians’ (Kuperman, 2013, p.114). Kuperman asserts that the assistance NATO supplied to the rebels who sought to overthrow Gaddafi was at odds with UNSC intentions, and instead extended the war and magnified the harm to civilians (2013, p.114). The reason NATO operations manifestly failed is because the use of force without the consent of the host state should primarily be about protecting the lives of innocent civilians. Yet, as India’s former ambassador to the UN, Hardeep Singh Puri, said, NATO instead became the armed wing of the Security Council, ‘dedicated not to protecting civilians in Benghazi but to overthrowing the government in Tripoli’ (cited in Nuruzzaman, 2013, p.64).

The regime in Libya was evidently one which violated human rights and imposed unfair living standards on its constituents. Therefore, the intentions of the NATO operation in removing the Gaddafi regime were at least in part marked by good intentions to protect Libyan citizens. However, attempting regime change is a misapplication of the R2P norm and contradicts international norms of state sovereignty. Further, although not explicitly endorsed by the UN at the 2005 World Summit, the original ICISS report recommended that when acting under the R2P, states should commit to a ‘responsibility to rebuild’, whereby intervening States should ‘provide full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert’ (ICISS, 2001, p.XI). NATO and UN Member States manifestly failed to assist Libya with this process in the wake of the intervention and the ensuing Libyan civil war. Nuruzzaman explains that after Gaddafi was killed by rebel forces, all that remained was ‘a hell of lawlessness, with 125,000 armed militias who have continued to control different parts of the country and clash against each other’ (2013, p.64).

Conclusion

The R2P reflects a dedication to the protection of populations from mass atrocity crimes. When the UNSC implemented the R2P in Libya through Resolution 1973, this was its original intention. The Gaddafi regime had resorted to intensive violence and used genocidal language during the Libyan civil war. However, the underlying motivation to remove the Gaddafi regime fuelled the NATO operation in Libya. This is in clear misalignment with the ideological principles of the R2P, thus constituting a failure of the norm in Libya.  As Keating (2013, p.175) asserts, this failure ‘through the military focus on inappropriate means and inappropriate ends creates an unfortunate precedent that has the potentially to fatally weaken the concept of R2P’. This precedent has arguably already begun to reverberate throughout current conflicts, with some academics reflecting on the failure in Libya and its impacts for the current situation in Syria (Morris, 2013; Nuruzzaman, 2013). One can only hope that the R2P, which aims to protect people from the most serious crimes, will be applied more appropriately in the future.

[1] Although the UN similarly authorised the United Task force to enter Somalia, this was ‘in the absence of a central government rather than against one’ (Bellamy & Williams 2011, p.825)

Bibliography

BBC News. 2011. ‘Libya: Russia decries French arms drop to Libya rebels’, BBC World News: Europe, (30 June)

Bellamy, A. J., & Williams, P.D. 2011. ‘The New Politics of Protection? Côte d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87(4), p.825-850

Brahimi, A. 2011. ‘Libya’s Revolution’. The Journal of North African Studies, 16(4), p.605-624

Daalder, I. H. and Stavridis, J. G. 2012. ‘NATO’s Victory in Libya; The Right Way to Run an Intervention. Foreign Affairs, 91(2)

Daalder, I. and Stavardis, J. 2011. ‘NATO’s Success in Libya’, The New York Times, (30 October)

Dunne, T. and Gifkins, J. 2011. ‘Libya and the State of Intervention’. Australian Journal of International Affairs,65(5)

Evans, G. 2011. ‘UN Targets Libya with Pinpoint Accuracy’, Sydney Morning Herald, (24 March)

Garwood-Gowers, A. 2013. ‘The Responsiility to Protect and the Arab Spring: Libya as the Exception, Syria as the Norm?’, UNSW Law Journal, 36(2), p.594

Hajjar, S. G. 1980. ‘The Jamahiriya Experiment in Libya: Qadhafi and Rousseau’. The Journal of Modern African Studies, 18(2), p.181-200

International Commission on Intervention and State Sovereignty. 2001. The Responsibility To Protect. Ottowa: International Development Research Centre

Joffė, G. 2011. ‘The End of Autocracy?’ The RUSI Journal, 156(3), p.12-19

Joffé, G. 2013. ‘Civil Activism and the Roots of the 2011 Uprisings’. In: Pack, J. ed. The 2011 Libyan Uprisings and the Struggle for the Post-Qadhafi Future. New York: Palgrave Macmillan, p.23-52

Keating, T. 2013. ‘The UN Security Council on Libya: Legitimation or Dissimulation?’ In: Hehir, A. & Murray, R. ed. Libya, the Responsibility to Protect and the Future of Humanitarian Intervention. Basingstoke: Palgrave MacMillan, p.162-190

Kuperman, A. J. 2013. ‘A Model Humanitarian Intervention? Reassessing NATO’s Libya Campaign’. International Security, 38(1), p.105-136

Lynch, J. 2011. ‘Responsibility to Protect After Libya’. International Journal of Peace Studies, 16(2), p.69-76

Miller, B. 2011. ‘Defiant Gaddafi Issues Chilling Threat’, ABC, (23 February)

Morris, J. 2013. ‘Libya and Syria: R2P and the Spectre of the Swinging Pendulum’. International Affairs, 89(5), p.1265-1283

Nuruzzaman, M. 2013. ‘The ‘Responsibility to Protect’ Doctrine: Revived in Libya, Buried in Syria’. Insight Turkey,15(2), p.57-66

Terbil, F. 2011. Interviewed by BBC Monitoring Middle East on BBC News, (1 March)

Thakur, R. 2011. ‘Libya and the Responsibility to Protect: Between Opportunistic Humanitarianism and Value-Free Pragmatism’. Security Challenges, 7(4), p.13-25

Ulfstein, G. 2013. ‘The Legality of the NATO Bombing in Libya’. International and Comparative Law Quarterly,62(1), p.159-171

United Nations. 2011. ‘Security Council Imposes Tough Measures on Libyan Regime, Adopting Resolution 1970 in Wake of Crackdown on Protesters’, Security Council Meetings Coverage, (26 February)

Vandewalle, D. 2011. History of Modern Libya. Cambridge: Cambridge University Press

A Norm-in-Formation? An Analysis of Brazil and China’s Normative Engagement with the Responsibility to Protect

Joseph Jegat, University of Leeds, United Kingdom

Joseph graduated from the University of Leeds in 2016.

The question of whether the Responsibility to Protect (R2P) is an established norm in international relations has been the subject of much academic debate in recent years. This paper will argue that R2P is best described not as a fully established norm, but as a ‘norm-in-formation’ (Negron-Gonzalez and Contarino, 2014). It reaches this conclusion based on three assessments of R2P. First, R2P is a complex norm with a contested nature, which prevents it from being fully internalised by states. Second, contestation surrounding R2P’s Pillar III can actually help to consolidate and further establish the norm rather than weaken it. Third, Brazil and China are engaging with R2P in a way that contributes to its normative formation and establishment in international relations.

This article will be split into three sections. The first section will analyse the complex nature of the R2P norm and will show that contestation is both a normal and beneficial part of R2P’s global diffusion. The second section will assess the ways in which Brazil and China have contributed to the continued normative formation of R2P through their respective concepts of ‘Responsibility while Protecting’ and ‘Responsible Protection’. The third section will offer conclusive remarks.

R2P: A Complex and Contested Norm

Norms in the discipline of International Relations can describe two things. First, they can describe existing social realities, or how the world is. Second, they can describe an aspiration, providing a framework for how the world ought to be (Ralph and Souter, 2015, p.68). As a normative aspiration, R2P is clear. There exists shared expectation that states have a responsibility to protect their populations, and that if they fail to do so, then the international community should help to protect these populations. This basic premise of R2P was unanimously adopted in 2005 and outlined in paragraphs 138 – 140 of the World Summit Outcome Document (UNGA, 2005). Whether R2P is an existing social reality, however, is less clear, and will be the focus of this essay.

R2P is best described as a ‘complex norm’ (Welsh, 2013), as it contains at least two norms, concerning both the responsibility of individual states and of the international community (Bellamy, 2014, p.22). The responsibility of states to protect their populations from genocide, war crimes, crimes against humanity and ethnic cleansing (Pillar I) is now a universally accepted norm embedded in international law. Pillar I has a high degree of what Jeffrey Legro (1997) terms ‘specificity’, meaning that it is clear and unambiguous, increasing the ‘compliance-pull’ of the norm (Franck, 1990, in Bellamy, 2014, p.7). The higher the specificity of a norm, the less open it is to contestation, which goes some way to explaining why Pillar I can be considered a fully consolidated norm in the discipline of International Relations. Pillar III (international intervention) on the other hand, and to a lesser extent Pillar II (international assistance), is much less universally accepted, partly because it lacks specificity, leaving it open to subjective interpretation.

The complex and sometimes ambiguous nature of R2P makes it especially vulnerable to criticism (Deitelhoff and Zimmermann, 2013; Garwood-Gowers, 2015). Pillar III in particular lacks conceptual clarity – highlighted, for example, by the lack of a threshold criteria for when international intervention becomes necessary and legitimate. For sceptics such as Aidan Hehir, the lack of clarity regarding intervention ‘influences the extent to which R2P can be deemed to constitute a “norm”’ (2013, p.151). Furthermore, Hehir (2013) argues that R2P had little, if any, influence over the United Nations Security Council (UNSC) decision to militarily intervene in Libya in 2011. Hehir’s criticisms highlight the fact that Pillar III remains highly contested, which prevents R2P as a whole from being considered fully established in International Relations.

Focusing solely on Pillar III, however, ignores the normative consolidation of both Pillars I and II. Although the 2011 Libyan intervention has somewhat stalled Pillar III progression, Pillar II has enjoyed widespread – although not absolute – support from states and has been the primary focus of the United Nations (UN) Special Adviser on the Responsibility to Protect since 2013 (Gallagher, 2015, p.1259). R2P has much more to it than just international military intervention. Perhaps paradoxically though, Pillar III contestation may help to further consolidate R2P in the long term.

Early Constructivist research on norms assumed that the ‘norm life cycle’ was a linear process, whereby norms emerge, cascade and become internalised in a progressive manner (Finnemore and Sikkink, 1998), with a general assumption that once norms had become internalised they were set in stone. More recent work has shown, however, that norms remain contested even after states have internalised them. Norms are of an ‘inherently contested quality’ (Wiener and Puetter, 2009, p.7) better understood as dynamic ‘processes’ subject to ongoing dispute rather than ‘things’ as such (Krook and True, 2010). Norm contestation is, in fact, a regular feature of a norm’s life, which is not necessarily synonymous with normative regression (Hofmann, 2015; Garwood-Gowers, 2015).

If anything, contestation can actually help to clarify and reinforce a ‘norm-in-formation’. Cristina Badescu and Thomas Weiss (2010) find that misapplication of R2P has helped to consolidate the norm by clarifying the boundaries of the concept. For example, former French Foreign Minister Bernard Koucher’s attempts to invoke R2P after 2008 Cyclone Nargis in Burma helped clarify that R2P was applicable only to the four crimes (genocide, war crimes, crimes against humanity and ethnic cleansing) and not for humanitarian assistance following natural disasters (Badescu and Weiss, 2010, p.362).

Following this logic, the fallout over NATO’s perceived misuse of R2P during the 2011 Libya intervention may help to clarify the boundaries of Pillar III military intervention. UN Resolution 1973 explicitly stated that authorisation had been granted for NATO to ‘take all necessary measures…to protect civilians and civilian populated areas under threat of attack’ (emphasis added, UNSC, 2011, p.3). It did not authorise regime change, which led to widespread criticism that NATO had overstepped its mandate and used R2P to mask a Western led liberal intervention with the ultimate goal of democratisation. Although NATO’s military actions have led to significant backlash against Pillar III (Garwood-Gowers, 2015, p.320) – as is all too visible in the UNSC stalemate over Syria – in the long term, the lessons learnt from the misuse of Pillar III in Libya may help to clarify the boundaries of Pillar III military action which will help make the norm more legitimate and applicable in the future (Acharya, 2013).

Post-2011 Pillar III contestation has been of what Nicole Deitelhoff and Lisbeth Zimmermann (2013) define as ‘applicatory contestation’. Critics of the NATO intervention have taken issue with the way in which R2P’s Pillar III was interpreted and applied in Libya. They have not directed their criticism towards the more fundamental idea that the international community has a responsibility to protect populations when states are incapable or unwilling to do so. According to Deitelhoff and Zimmermann, this type of contestation usually strengthens a norm’s validity by helping to clarify the boundaries of its usage (2013, p.14). The second type of norm contestation is ‘justificatory’, which challenges core values and may lead to normative regression. Although there is some evidence that post-Libya contestation has been of a more challenging ‘justificatory’ nature (Garwood-Gowers, 2015), in general, states accept that international involvement is necessary is certain crises where mass atrocities have been committed (Bellamy, 2014; Evans, 2016). This suggests that the normative values of R2P may be more internalised than many critics assume.

Constructive engagement: Brazil and China 

The first part of this essay has argued that R2P is a complex norm, comprising multiple tenets that have been internalised to varying degrees. It has also shown that ‘applicatory contestation’ surrounding Pillar III can assist with conceptual clarification, helping the norm to become further established in the long term. The remainder of this essay will focus on the normative contributions made by Brazil and China, as these illustrate the continued formation of the R2P norm. These states have been selected as both have developed important concepts that aim to shape the trajectory of R2P’s advancement. Firstly, however, it is necessary to briefly explore the theoretical ways in which states can influence the development of a norm.

Norm diffusion describes the process by which global norms come to be accepted at the local level. This dynamic and active process is characterised by argumentation at the domestic and international level, which can both advance and restrain normative development (Kenkel and De Rosa, 2015). States engage with this process in a bid to act as ‘norm makers’ rather than ‘norm takers’. Emerging powers such as Brazil and China are particularly keen to be viewed as norm makers – and especially do not want to be viewed as norm takers – as it may help them attain the status of global powers (Kenkel and De Rosa, 2015; Prantl and Nakano, 2011). How states engage with norm diffusion, however, depends, for example, on factors such as compatibility of the global norm with pre-existing local norms (Brosig and Zahringer, 2015, p.352).

For Amitav Acharya, norm creation and diffusion is a two way process best defined as ‘norm circulation’, which combines Acharya’s earlier work on ‘localization’ and ‘subsidiarity’.

[G]lobal norms offered by transnational moral actors are contested and localized to fit the cognitive priors of local actors (localization), while this local feedback is repatriated back to the wider global context along with other locally constructed norms and help to modify and possibly defend and strengthen the global norm in question (subsidiarity) (2013, p.469).

Similarly, Jochen Prantl and Ryoko Nakano (2011) argue that norm diffusion is best described not as a top down linear process but as a ‘feedback loop’, whereby states attempt to alter the properties of a norm to fit their own strategic interests. The concepts of norm circulation and norm feedback highlight the dynamic nature of norm diffusion, and show that states can play important roles in shaping the trajectory of a ‘norm-in-formation’.

Brazilian and Chinese engagement with R2P fits within this theoretical framework. These emerging powers have simultaneously embraced and contested different parts of the norm according to pre-existing local norms, and have then attempted to modify R2P in order to accommodate this feedback. Their clearest attempts at shaping the norm have been in the form of Brazil’s Responsibility while Protecting (RwP) and China’s Responsible Protection concepts. Although both states embrace the central principles of R2P, they have taken issue with the way Pillar III was implemented by NATO in Libya (Kenkel and De Rosa, 2015; Negron-Gonzalez and Contarino, 2014). In China especially, there has been great difficulty in reconciling Pillar III intervention with local norms such as a longstanding and deeply rooted commitment to non-interference and the inviolability of sovereignty (Prantl and Nakano, 2011).

Although Brazil is also bound to the idea of non-interference, South American states’ experiences of military dictatorships have led to a strong normative commitment to human rights (Welsh et al, 2013). RwP, therefore, is aimed at improving the implementation of Pillar III action. It does not undermine the principles of R2P. Brazil’s RwP concept argues for the need to have more specific criteria for authorising military intervention, as existing provisions in the 2005 World Summit Outcome Document are too vague (Tourihno et al, 2016). Similarly, China’s Responsible Protection builds on the ideas of RwP and the original International Commission on Intervention and State Sovereignty report ‘The Responsibility to Protect’ (2001), and outlines a stricter criteria for Pillar III military intervention. Responsible Protection stresses that any intervention must not negatively affect regional peace and stability, must not be interpreted to equate to regime change, and must not cause greater harm than already exists (Garwood-Gowers, 2016, p.103).

Brazil’s capacity to follow up RwP with concrete proposals for moving forward has been very limited (Welsh et al, 2013), and China’s Responsible Protection is not even official government policy (Garwood-Gowers, 2016). Despite these setbacks, Brazilian and Chinese engagement with R2P is of the utmost importance for the further development of R2P as a norm. These concepts have helped open up the debate on Pillar III intervention (Tourihno et al, 2016), and have highlighted the importance of getting non-Western emerging powers on board with R2P. RwP and Responsible Protection are forms of feedback which shape ‘norm circulation’ (Acharya, 2013), and hold great potential for progressing R2P in the aftermath of Libya. If states perceive themselves as ‘norm shapers’, they are much more likely to embrace and internalise said norm.

As Ramesh Thakur (2016) has argued, there should be a focus on improving the implementation of R2P to safeguard the norm from abuse and failure. This is exactly what RwP and Responsible Protection set out to do, by contesting Pillar III in an ‘applicatory’ manner which could help to clarify the boundaries of the norm, potentially bringing UNSC permanent 5 members Russia and China back on board (Evans, 2016). The willingness of emerging powers to engage with norm entrepreneurship is a positive sign, as the legitimacy of R2P is dependent upon acceptance by non-Western states (Garwood-Gowers, 2016). Long term consolidation of R2P requires a certain degree of consensus over Pillar III actions (Negron-Gonzalez and Contarino, 2014, p.270), and at present, the concepts offered by Brazil and China offer the most promising way forward.

Conclusion

This article has argued that R2P is best described not as a fully established norm, but as a ‘norm-in-formation’ (Negron-Gonzalez and Contarino, 2014). That is because R2P is a complex norm, combining multiple tenets that receive varying degrees of international support. Pillar I has become universally established and is enshrined in international law. Pillar III, on the other hand, is subjective and ambiguous, leaving it vulnerable to interpretation and contestation. Contestation, paradoxically, can aid with conceptual clarification, which will make the norm less vulnerable in the long term. In this way, post-Libya contestation may help to consolidate and further establish Pillar III, increasing the likelihood of state internalisation the R2P norm fully.

Furthermore, this article showed that through a process of feedback and circulation, Brazil and China have made valuable contributions to the continued normative formation of R2P. The RwP and RP concepts have raised important questions that must be addressed if R2P is to continue developing into its second decade. Assessing the point at which R2P can be considered an established norm poses difficulties by itself. Norms do not have a clear endpoint. They continue to evolve for as long as the norm is referred to and acted upon (Brosig and Zahringer, 2015, p.354). It is not within the scope of this essay to assess the theoretical point at which R2P may be considered fully established, but a step in that direction requires widespread consensus and internalisation of Pillar III. At present, this requires constructive engagement with non-Western concepts such as Brazil’s RwP and China’s Responsible Protection.

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The Responsibility to Protect and the Responsibility to Prosecute

Georgiana Epure, University of Cambridge, UK

Georgiana is an editor of the R2P Student Journal. She holds a BA in International Relations from the University of Leeds. As an Undergraduate Research and Leadership Scholar, she worked with the Intervention and International Society Research Cluster at Leeds. In 2015, she founded the R2P Student Coalition at Leeds. Her article was written in her finaly year at the University of Leeds.

There are few occurrences that bind states and make them aware of their common values. The protection of populations from mass atrocities that shock the conscience of humankind is one of them. This article looks at states’ and the international community’s responsibilities to protect (R2P) and prosecute. The article argues that these two responsibilities have a complementary relationship, as they share the same goal of protecting people from gross human rights violations. However, this relationship, a mixture of political and judicial measures, can work against that goal when R2P and the responsibility to prosecute are used simultaneously as conflict management tools in on-going crises.

The article has a twofold structure. First, using English School theory, it examines how these responsibilities emerged and what they entail. This will be followed by an analysis of their complementary relationship and an assessment of how both these normative projects, which have universal moral underpinnings, blur the lines between two different types of world orders: the society of states and the world society. The second part analyses how the closeness between R2P and the responsibility to prosecute can be problematic as it may result in legitimacy and civilian protection costs. The article concludes nonetheless that the intimate link between R2P and the responsibility to prosecute strengthens the global protection discourse and increases the guilt for inaction. That is because the potential problems of legitimacy and civilian protection costs can be mitigated if the coercive tools of the R2P and responsibility to prosecute – Pillar III on the one hand, and proprio motu and United Nations Security Council (UNSC) referrals on the other – are sequenced so that criminal accountability acts retrospectively. If this does not happen, the responsibility to prosecute can undermine R2P’s human security agenda.

Two Responsibilities, One Goal 

The international community has been developing a global normative project to protect people from gross human rights violations. This project comprises different ‘sets of norms and practices’ that entail different types of actions (Mills, 2015a, p.1). The responsibility to prosecute (punishing those most responsible of mass atrocities) and R2P (preventing mass atrocities, assisting states to protect or using peaceful or coercive means to stop mass atrocities) are two of these norms and practices. The responsibility to prosecute has a longer history than R2P, dating back to 1474, when the first international trial was held (Schabas, 2011, p.1). R2P has its roots in the failure of the responses to the humanitarian crises in 1990s, which were either lacking, as in the case of Rwanda, or were ‘illegal but legitimate’ as in the case of Kosovo (The Independent International Commission on Kosovo, 2000, p.4). R2P as a concept emerged from the International Commission on Intervention and State Sovereignty Report (ICISS) in 2001, as a response to then-Secretary General Kofi Annan’s (1999) call for reconciling state sovereignty and humanitarian intervention in order to allow for international responses to protect populations from mass atrocities.  In 2005, world governments unanimously agreed that they have a responsibility to protect their populations from four crimes: genocide, war crimes, crimes against humanity and ethnic cleansing (UNGA, 2005, WSOD, para. 138, 139). Four years later, UN Secretary General (UNSG) Ban Ki-moon published his first R2P report, ‘Implementing the Responsibility to Protect’, which outlines the three pillars of the R2P. Pillar I consists of each state’s responsibility to protect its population from the four crimes. Pillar II is the international community’s responsibility to assist states that are unable to uphold their R2P. Pillar III is triggered when a state ‘manifestly fails’ to protect its population, in which case the international community has a responsibility to respond collectively in a timely and decisive manner to protect the population at risk.

The responsibility to prosecute as a (legal) norm has developed through a series of international conventions that created an international legal obligation to prosecute genocide, war crimes and torture. For example, granting amnesties, asylum or exile to perpetrators of such crimes would constitute a breach of treaty obligations (such as The Convention on the Prevention and Punishment of the Crime of Genocide 1948, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, the ‘grave breaches’ of the Geneva Conventions 1949) – as they mean that no prosecution would be forthcoming (Scharf, 2006, p.350-1). The responsibility to prosecute began to be institutionalised after the end of World War II (Schabas, 2011, pp.5-16) through the establishment of the International Military Tribunals at Nuremberg and Tokyo, the creation of the ad-hoc international tribunals in Rwanda and Former Yugoslavia in the 1990s, and culminated in the establishment of the permanent and independent International Criminal Court (ICC) in 2002.

R2P, on the other hand, lacks an institutional embodiment. Nevertheless, as Ralph (2016, p.2) highlights, R2P and the responsibility to prosecute (through the ICC) share a recent history that commits them to ‘the long-term goal of ending mass atrocities’. These two responsibilities have developed alongside each other, despite the fact that they are not formally linked (Ainley, 2015, p.37). First, they have a close relationship because they overlap in their focus on the protection against the same crimes. Because R2P focuses solely on four crimes (genocide, war crimes, crimes against humanity and ethnic cleansing), this section analyses whether there is a responsibility to prosecute these particular crimes.

First, states that ratified the 1948 Genocide Convention have a legal duty to prosecute those responsible for genocide, the über crime, which is considered a jus cogens crime, that is, states are prohibited from committing it under all circumstances (Scharf, 2006, p.364). Jus cogens norms reflect a general consensus (Ralph, 2007, p.9); they are peremptory norms accepted by the whole international community for which states’ consent is not needed as they have foundations in natural law from which no derogation is permitted (Scharf, 2006, p.364-5). Second, under the 1949 Geneva Conventions and Additional Protocols, there is a duty to prosecute war crimes. However, it is worth noting that the ‘grave breaches’ of the Geneva Conventions, which impose a duty to prosecute, punish or extradite war crimes perpetrators, only apply to international armed conflict that involve at least two states (Scharf, 2006, p.351). R2P responses to war crimes, however, generally occur in internal armed conflicts. This is because civil wars are now much more common than international armed conflicts. . Nevertheless, whilst states and international tribunals can prosecute war crimes in internal conflicts (see the ICTY-Prosecutor v. Tadic, Case No. IT-94-1, 1995, paras.97-137), there is no absolute legal duty to do so (Scharf, 2006, p.352). Third, with regard to crimes against humanity there is no absolute requirement to prosecute. As Scharf (2006, p.360) stresses, crimes against humanity are a ‘creature of customary international law’, generated out of the jurisdiction of the Nuremberg Tribunal, the International Criminal Tribunal for Former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court in Sierra Leone, and most recently codified in the Rome Statue of the ICC. Although there is no legal duty to prosecute crimes against humanity, under customary international law, which is defined as ‘a general and consistent practice of states followed by a sense of legal obligation’, amnesty and asylum are prohibited for such crimes (Scharf, 2006, p.360). The fourth crime, ethnic cleansing, does not have a definitive legal definition under international criminal law (Bellamy and Reike, 2010). However, it is covered by crimes against humanity under the jurisdiction of the ICC. In short, the twin responsibilities to protect and prosecute represent two ‘inter-related twin tasks [to] protect victims and punish the perpetrators’ of the same mass atrocities (Thakur and Popovski, 2007, p.41).

As discussed, the responsibility to prosecute is entrenched in international criminal law. R2P, on the other hand, is ‘a political commitment’ (Bellamy and Reike, 2010, p.267), arose from legal commitments as well (see, for example, 1948 Genocide Convention); that is, R2P did not create new obligations, but reinforced customs already entrenched in international law. To be clear, R2P is not legally void, but has more of a moral and political nature, particularly in what concerns its reactive pillars, whether supportive (Pillar II) or coercive (Pillar III) (p.269). R2P’s normative status is also more problematic because of its complex nature. As Stahn (2015, p.19) puts it, R2P is a set of norms, an ‘umbrella concept’ (Stahn, 2015, p.19), which makes its internalization difficult (Welsh, 2013, p.386). Despite the disequilibrium in their normative strengths, the responsibility to prosecute and the R2P contribute to achieving the same goal: protection from mass atrocities – whether through ‘interventions to stop atrocities’ or ‘holding individuals criminally responsible for atrocities’ (Mills, 2015a, p.1). To tweak Sikkink’s words (see ‘The Justice Cascade’, 2011), these two responsibilities create a ‘protection cascade’ that strengthens the protection discourse both at the domestic and the international level, in domestic and international law, norms and institutions.

Additionally, both norms draw on similar foundations of a ‘humanity-based defense of international authority’ (Stahn, 2015, p.13) and they both call for ‘humanitarian concerns to be of international concern’ (Birdsall, 2015, p.54). The development of the responsibility to protect and prosecute norms mirrors the evolution of a changing world order, which Dunne and Wheeler (1999) identify as a ‘critical international society’ where states create and advance cosmopolitan values and universal moral principles and norms that transcend the society of states. The responsibilities to protect and prosecute are measures developed to defend such values, which advance the creation of an international community (world society). As the English School solidarist scholars note, the international society ‘eventually spills over the boundary into world society’ (Buzan, 2001, p.479), because states have a responsibility to a greater concept of ‘the common good, which may include a conception of humanity that is founded in natural or customary international law’ (Ralph, 2007, p.9). As Buzan (2001, p.478) puts it, shared moral norms are the foundation of ‘a more expansive, and almost inevitably more interventionist, understanding of international order’ – this includes both an international responsibility to act to protect populations from gross human rights violations and a responsibility to prosecute those responsible of orchestrating them. Due to this sense of moral obligation, states act as agents of humanity to protect populations and ‘save strangers’ (Wheeler, 2000).

International criminal justice (especially with crimes under universal jurisdiction and the UNSC referrals to the ICC) and R2P blur the lines between the society of states, in which state sovereignty is still the constitutive rule, and the world society, which rests on a ‘common perception of humanity’ (Ralph, 2007, p.17), where ‘the state complements the work of other supranational institutions’ (p.18). Nevertheless, both norms require ‘substantial derogation of sovereignty’, R2P with respect to the norm of territorial non-intervention and the responsibility to prosecute with respect to the norm of sovereign impunity (Thakur and Popovski, 2007, p.41). R2P is a universal agreement that binds states and the international community to prevent and stop mass atrocities, and that asserts that state sovereignty is not absolute. International criminal justice further strengthens a society ‘based on humanity rather than sovereignty’ (Durkheim, 1933, p.63). This is reflected in the Rome Statute, which gives the Prosecutor discretionary power to act without the consent of the UNSC, which makes the ICC independent from the society of states (Art. 15) – however, the UNSC can still have the last word under Art. 16 which gives the Council power to suspend an investigation. Both norms contribute to the erosion of the negative, absolute sovereignty, and strengthen positive sovereignty (see Thakur and Popovski, 2007, p.48). The development of the responsibility to protect and prosecute has shown that the focus has shifted from the negative function of sovereignty (acting as a shell from outside interference in the internal affairs of a state, in order to maintain state pluralism in international relations) to its positive function, which focuses on the population of a state and its protection. This makes sovereigns accountable both internally and externally: to their populations and to the international community (Piiparinen, 2012, p.406).

At the same time, both international responsibilities come secondary to domestic mechanisms, having a complementary function (Contarino et al, 2012, p.272). R2P’s coercive tools are activated on a case-by-case basis when the state ‘manifestly fails’ to protect its population (WSOD, para.139), and the ICC jurisdiction is triggered only when the state is unable and/or unwilling to prosecute (Preamble of the Rome Statute, para.10). Moreover, they both seek to have a supportive role (work in partnership with the state) to achieve their goal rather than use coercive interventions – R2P through Pillar II international assistance and capacity-building, and the responsibility to prosecute through its positive complementarity function that seeks to strengthen states’ capacity for justice. Luban (2013, p.511) describes the latter as ‘norms [getting] spliced into the DNA of domestic law … norm projection at work’, which achieves more than the few trials in The Hague.

To sum up, whilst the two responsibilities are ‘two sides of the same coin’ (Thakur and Popovski, 2007, p.40), they have ‘divided the labour’ of preventing and protecting populations from mass atrocities through a political approach on one hand, and judicial approach on the other.

The Dangers of a Too Tight, Synchronised Relation

How and when these responsibilities apply is crucial to strengthening or undermining their relationship. R2P interventions (supportive or coercive) are prospective, aiming to prevent or stop crises. The responsibility to prosecute is mainly retrospective, holding people accountable after atrocities occurred (Mills, 2015, p.14). However, the ICC, the most recent institutionalistion of the responsibility to prosecute, also holds a preventative function laid down in the Preamble of the Rome Statute (para. 5), which stresses the Court’s role in ending impunity and its contribution to prevention. Holvoet and Mema (2014, p.23) emphasize the ICC’s positive and negative general preventative role by respecting the ‘international criminal law and the core societal values protected therein’ and deterring future crimes. As Mills (2015, p.30) stresses, besides its prevention and deterrence functions, the ICC, by intervening in on–going conflicts, also has a conflict–management role. This can be problematic because these two responsibilities, when employed simultaneously, can undermine each other’s prospects for success (Ralph, 2015, p.5). This risk originates mainly from their asymmetrical relation (Karsten, 2011), rooted in the R2P’s political nature and the legal and apolitical character of the international criminal justice (Ainley, 2015, p.45).

Whilst R2P might benefit normatively from its closeness to the responsibility to prosecute, in practice, their association damages the responsibility to prosecute as it may become politicised. Contarino et al (2012, p.298) argue that the ICC could accelerate R2P’s norm cascade and consolidation (Contarino et al, 2012, p.298). As the former ICC prosecutor stated that the ICC could ‘add legitimacy to Security Council’s decision to apply the R2P concept’ (Moreno–Ocampo, 2006), by establishing a juridical process, rather than a political one, to determine when R2P violations occur (Contarino and Lucent, 2009, p.563). However, when employed in on-going conflicts, first, the ICC risks becoming a politicized tool, which undermines its impartiality and legitimacy (Birdsall, 2015, p.51). The ICC has global reach only when its jurisdiction is unlocked by the UNSC, which can refer non-party states to the ICC. To reach and hold to account people such as Omar al–Bashir and Gaddafi (in non–party states), the ICC is drawn into the political and power dynamics of the UNSC. As Ainley (2015, p.44) argues, the ICC would ‘impinge upon P5 interests if it were to rely increasingly on UNSC referrals to build up its effectiveness’. However, this increase in effectiveness would come at a cost, namely the ICC’s legitimacy as an impartial international institution. By serving the UNSC, the ICC would trade authority (based on its legal character) for power (Ainley, 2015, p.46). This is problematic because impartiality is a key attribute of the ICC.

Second, the responsibility to prosecute in on–going conflicts might also interfere with national efforts for peace, which might include granting amnesties for peace and reconciliation (Mills, 2015a, p.49). However, as has been discussed in the first section of the article, international criminal law prohibits the granting of amnesties for genocide, and customary international law favours punitive, criminal accountability for crimes against humanity and war crimes. Thus, the uncompromising pursuit of international criminal justice makes conflict management difficult (Mills, 2015b, p.73). Sometimes trading peace for justice can have a bigger protection impact. A person’s indictment can interfere with protection and peace agreements because it increases their incentives to continue fighting as the alternative is The Hague (Mills, 2015b, p.82). Given the risks that this tight relationship poses, as Ainley (2015, p.47) concludes, R2P and the ICC can best achieve their goal by focusing on prevention rather than intervention or prosecution. In other words, R2P and the responsibility to prosecute together can achieve more if they focus on their complementarity functions under Pillar II, to strengthen state capacity to prevent, protect and prosecute. As Stahn argues (2015, p.13), it is better to respect the autonomy of these two individual responsibilities and their mutual virtues.

Conclusion

R2P and the responsibility to prosecute are closely related. They are ‘intimately linked’ (Kersten, 2011) and their relationship goes beyond their common recent history, focus on genocide, war crimes and crimes against humanity and their goal of protecting populations from these crimes. These two responsibilities are part of the same global normative project that advances the creation of a world society based on a common sense of shared universal humanity. It is this common humanity that needs to be protected from mass atrocities and to which those who bear the greatest responsibility for planning and organising mass crimes must be held  accountable. Despite the unequal weight in their normative strengths, these two responsibilities consolidate the global discourse for protection against gross human rights violations and increase the guilt for inaction. At the same time, because of the different nature that makes the political and judicial responsibilities complement each other, too tight a relationship can undermine their prospects for success and their protection goal. They both have supportive and coercive functions to pursue their goals. However, when employed at the same time and when they become conflict–management tools in on–going conflicts, international criminal justice can undermine peace efforts and can be used as a political tool, which affects the impartiality and legitimacy of this institution. As a result, their relationship can deliver more when international criminal justice acts retrospectively, and when R2P and the responsibility to prosecute focus on their complementary roles – building states’ capacities to fulfill their domestic protection and prosecution responsibilities, which consolidates prevention.

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