Yasmine Nahlawi
1 July 2016
Since the advent of the UN Charter, the State-centred nature of the international legal system has increasingly given way to the emergence of human rights norms and obligations which bind States to minimum standards in their treatment of their own populations. As such, human rights norms increasingly came to represent obligations owed to the international community as a whole, thus making States more susceptible to international action if they commit gross human rights abuses against their populations.1 This manifested most particularly in the 1990s when the international community intervened in Northern Iraq, Bosnia, Rwanda, Somalia, and Kosovo to bring an end to the massive human rights violations being perpetrated in the respective countries.
The responsibility to protect doctrine (R2P) was born out of the international community’s response to the Kosovo intervention in 1999. During this crisis, international action through the United Nations Security Council (UNSC) was made nearly impossible due to the threat of the Russian veto, resulting in NATO’s undertaking of unauthorised military intervention to bring an end to the situation.2 R2P was meant to offer a mechanism which could on the one hand facilitate robust and effective action in the face of mass atrocity situations (free from the constraints of the permanent veto), while on the other hand provide safeguards from abuse, given the fears of some States that any mandate permitting international action could be misused by international powers.
At its core, R2P is premised upon the notion that State sovereignty represents a responsibility of States to protect their populations from mass atrocity crimes,3 defined as genocide, war crimes, crimes against humanity, and ethnic cleansing.4 Should States fail to ensure this protection of their civilians – whether they are unable, unwilling, or carrying out the mass atrocity crimes themselves – then the responsibility to ensure civilian protection is transferred to the international community as a whole. The international community should then take measures, including the use of force if necessary, to bring an end to the mass atrocity situation.5 It is these ideals which the late Jo Cox MP believed in and fought for;6 she argued that the international community had a direct and compelling role to play in Syria given the Assad regime’s subjugation of its civilians to mass atrocity crimes. As is glaringly apparent from the Syrian case, however, R2P still has a long way to go in achieving its desired aims.
The inherent limitations of R2P can be extracted from paragraphs 138-39 of the 2005 World Summit Outcome document. These paragraphs effectively contain the most commonly accepted definition of R2P. First, States affirmed in this document that ‘[e]ach individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity … We accept that responsibility and will act in accordance with it’.7 This constituted a strong affirmation of the obligations of host States to protect their civilians from mass atrocity crimes and emphasised one of the central notions of R2P, namely that sovereignty entails a responsibility to protect civilians rather than constituting unchecked power over them.
However, the 2005 World Summit Outcome document goes on to state that ‘we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.’8 This passage reveals two major shortcomings of R2P which explain why it does not yet represent an adequate tool in responding to mass atrocity situations.
First, this document declares that any international response to a mass atrocity situation will happen ‘through the Security Council’, thereby relying upon the same process which it was meant to circumvent (or at least, to regulate), given the potential for the permanent veto to thwart much-needed international action. Developments since the inception of the R2P doctrine have not given rise to any accepted means of circumventing the UNSC or to a formal restriction of the use of the veto. This means that as before, international action through the UNSC is still held hostage to the veto, as has been most blatantly manifested in the Syrian conflict, in which Russia and China have so far vetoed four draft UNSC resolutions and persistently use the threat of the veto to significantly water down those resolutions which are eventually adopted.9 States have also been reluctant to intervene without a UNSC mandate authorising them to do so, even to achieve non-military goals such as airlifting humanitarian aid into besieged areas.
The second major shortcoming of R2P as defined within the 2005 World Summit Outcome document is that States pledged to respond to mass atrocity situations on a ‘case-by-case basis’, meaning that international reactions to R2P situations will be inconsistent at best. Whereas it was hoped that R2P would give rise to a collective expectation, or even an obligation, for the international community to take action in the face of mass atrocity situations, the R2P doctrine has failed to progress the legal framework in this manner. Rather, States continue to retain discretion over which R2P situations they react to, and also in the manner by which they do or do not take action. On Syria, this has meant that the international community has been able to drag its feet without giving rise to any sort of responsibility.
The ideals of R2P, and the ideals which Jo Cox MP fought for, are both progressive and humanitarian. At its core, R2P builds upon decades of State practice which affirms that domestic human rights situations are the responsibility of the international community as a whole and do not lie within the exclusive sovereign prerogatives of States. However, it is unfortunate that some of the inherent weaknesses of the international legal system were not addressed through R2P’s development, meaning that the doctrine continues to suffer from the inherent obstacles of the UNSC decision making framework, most particularly pertaining to the permanent veto. These limitations of the doctrine regrettably all manifested themselves within the Syrian conflict, in which the permanent veto, combined with an international unwillingness to take action, have led to the perpetuation of the mass atrocity situation which currently has no end in sight.
A commitment to R2P should lie at the heart of a progressive, human-rights oriented Labour foreign policy that is not afraid to take a leadership role in the international community in working for a safer, more peaceful world and protecting fundamental freedoms.
Yasmine Nahlawi is an Advocacy and Policy Coordinator at Rethink Rebuild Society, and a Ph.D. candidate of International Law at Newcastle University.
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1 Santiago Villalpando, ‘The Legal Dimension of the International Community: How Community Interests Are Protected in International Law’ (2010) 21 European Journal of International Law 387, 392-93.
2 Lois Henkin, ‘Kosovo and the Law of “Humanitarian Intervention”‘ (1999) 93 American Journal of International Law 824, 825.
3 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect: The Report of the International Commission on Intervention and State Sovereignty’ (International Development Research Centre, 2001) <http://www.un.org/ga/search/view_doc.asp?symbol=A/59/565> accessed 30 September 2012 para 2.29 [hereinafter 2001 ICISS Report].
4 UNGA ‘2005 World Summit Outcome’ UNGA 60th Session UN Doc A/60/L.1 (2005) para 138 [hereinafter 2005 World Summit Outcome]
5 2001 ICISS Report (n2) para 2.29.
6 Jo Cox, ‘Archive: Jo Cox on progressive internationalism’ (Fabian Society, 17 June 2016) available at http://www.fabians.org.uk/archive-jo-cox-on-progressive-internationalism/ (accessed 23 June 2016).
7 2005 World Summit Outcome (n4) para 138.
8 Ibid para 139.
9 See vetoed draft UNSC resolutions: UNSC Draft Resolution (4 October 2011) UN Doc S/2011/612; Draft Resolution (4 February 2012) UN Doc S/2012/77; UNSC Draft Resolution (19 July 2012) UN Doc S/2012/538; UNSC Draft Resolution (22 May 2014) UN Doc S/2014/348.