The Evolution of the Responsibility to Protect: From the ICISS to the 2005 World Summit

Textbook, 2013, 58 Pages

Politics - International Politics - Topic: Public International Law and Human Rights

Excerpt

Chapter 1

The International Commission on Intervention and State Sovereignty (ICISS) published its

report, The Responsibility to Protect, (hereafter referred to as the Report) in 2001.

The

Report followed the 9/11 attacks on the World Trade Centre and the Pentagon, and the

subsequent US-led war on terror has largely overshadowed the debate on humanitarian

intervention which the Report aimed to reignite.

The Report has

however

provided answers

to issues that were central to the debate surrounding humanitarian intervention during the

1990s, namely, just cause, right authority and the balance between the protection of human

rights and sovereignty, but has

in the process sparked a new debate centring around the

principle it introduced, that of the Responsibility to Protect (R2P). The establishment of the

ICISS and the subsequent publication of its report were in response to a challenge laid down

by then Secretary-General of the United Nations (U.N.) Kofi Annan:

If humanitarian intervention is indeed an unacceptable assault on sovereignty, how should we re-

spond to a Rwanda, to a Srebrenica to gross and systematic violations of human rights that of-

fend every precept of common humanity?

The Canadian government, acting on the initiative and ingenuity of Foreign Minister Lloyd

Axworthy,

created an international commission which was tasked to "wrestle with the whole

range of questions legal, moral, operational and political rolled up in this debate, to consult

with the widest range of opinion around the world, and to bring back a report that would help

the Secretary-General and everyone else find some new common ground."

The Report

envisions a re-conceptualisation of sovereignty, adding to it a fourth dimension, namely that

sovereignty involves a threefold responsibility of states.

This re-conceptualisation does not

amount to a dilution or transfer of state sovereignty, but rather, a "necessary-re-

characterisation ...from sovereignty as control to sovereignty as responsibility in both internal

functions and external duties."

The Report's central theme is the notion that states are

responsible for the protection and well-being of their citizens, but where a state is either

Alex J. Bellamy, Responsibility to Protect (Cambridge: Polity Press, 2009), 51; Gareth Evans, The Responsi-

bility to Protect: Ending Mass Atrocity Crimes Once and for All (Washington D.C.: The Brookings Institution,

2008), 31.

Evans, The Responsibility to Protect, 44; D. O. Quinn, "The Responsibility to Protect" (MA diss., Canadian

Forces College, 2007), 50.

Kofi Annan, Millennium Report of the Secretary General of the United Nations (New York: United Nations

Department of Public Information, 2000), 48.

Evans, The Responsibility to Protect, 38.

The International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect

(Ottawa: International Development Research Centre, 2001), vii.

ICISS, 13; Nick Grono, "Briefing Darfur: The Inrenational Community's Failure to Protect," African Affairs

105 (2006): 623; Paul D. Williams and Alex J. Bellamy, "The Responsibility to Protect and the Crisis in Darfur,"

Security Dialogue 36 (2005): 28.

ICISS, 13

unable or unwilling to discharge this responsibility, it is then transferred to the

international community.

Rather

than contradictory as was suggested in the previous

debate the Report asserts that the relationship between intervention on the basis of human

rights and sovereignty is complementary.

From its inception in 2001, the principle of R2P? has progressed to worldwide ac-

ceptance remarkably fast, as it was widely accepted by the international community at the

2005 World Summit.

As endorsed at the 2005 World Summit, the R2P is significantly

different from its articulation in the ICISS report.

A large portion of the literature dealing

with the evolution of the R2P focuses on the principle's progression from the ICISS report to

the HLP report, the Secretary-General's report and ultimately the 2005 World Summit

Outcome Document. This thesis aims to provide a discussion of the main factors influencing

the debate around the R2P and the principle's evolution, namely, the war on terror and the

2003 war in Iraq, the crisis in Darfur, and lastly, U.N. Security Council buy-in regarding the

ICISS articulated criteria to guide the use of military force in humanitarian intervention.

Toward this end, a background to humanitarian intervention is provided, from which the

focus shifts to a discussion of the ICISS and the R2P. Finally, the magnifying glass is cast on

the version of R2P as articulated in the World Summit outcome document and the most

significant events and arguments that have informed the debate around the R2P, and the

emergence of what is termed `R2P Lite'. The manner in which the U.S. has pursued the war

on terror, the waging of war in Iraq (2003), and the use of humanitarian justification to

legitimise that war, has been a significant factor influencing the debate around R2P.

Using

the debates on humanitarian intervention in Darfur as a reference point, an argument can be

made that the war in Iraq has "undermined the standing of the United States and the U.K as

norm carriers."

Furthermore, an argument can be made that an underlying theme in the

Alex J. Bellamy, "Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Interven-

tion After Iraq," Ethics and International Affairs 19 (2005): 35; Christina G. Badescu and Linnea Bergholm,

"The Responsibility to Protect and the Conflict in Darfur: The Big Let-Down," Security Dialogue 40 (2009):

288, 290; Williams and Bellamy, 28.

S. Neil Macfarlane, Carolin J. Thielking and Thomas G. Weiss, "The Responsibility to Protect: Is Anyone

Interested in Humanitarian Intervention?" Third World Quarterly 25 (2004): 978; Quinn, 34.

Alicia Bannon, "The Responsibility to Protect: The U.N. World Summit and the Question of Unilateralism,"

The Yale Law Journal 115 (2006): 1158-9; Grono, 622; 2005 World Summit, Sept. 14-16, 2005, 2005 World

Summit Outcome, 138-9, U.N. Doc. A/60/L.1 (Sept. 20, 2005); Mahmood Mamdani, "Responsibility to Protect

or Right to Punish," Journal of Intervention and Stabilising 4 (2010): 55.

Bellamy, Responsibility to Protect, 83.

Thomas G. Weiss, "R2P After 9/11 and the World Summit," Wisconsin International Law Journal 24 (2006):

748; Williams and Bellamy, Responsibility to Protect, 36-7; Gareth Evans, "From Humanitarian Intervention to

the Responsibility to Protect," Wisconsin International Law Journal 24(2006): 717.

Bellamy, Trojan Horse, 32.

evolution of the R2P, and the reason for this thesis, is that we are currently experiencing a

changing of the writers of the rules of the international system.

Alex Bellamy argues that the main activists of humanitarian intervention have suf-

fered a "credibility crisis," with the real danger being that appeals to a R2P "will evaporate

amid disputes about where that responsibility lies."

Initially my understanding was that with

regards to the 2003 crisis in Darfur, R2P as a principle had failed to live up to the standards

that it set, and that this failure was the primary reason behind the international community's

response (or rather lack thereof). However, what I have come to discover was that by intro-

ducing the "language of a `responsibility to protect'," into the debates around Darfur, has

enabled those who are opposed to intervention "to legitimise arguments against action"

claiming that in a number of disputed cases the primary responsibility remains with the state

in question and has yet not been transferred to the international community.

This of course

returns the issue to the question of the balance between sovereignty and the protection of

human rights, and although the Report stresses that these two aspects are complementary, as

is mentioned above. It is apparent that this is an issue of contention not only in the debates

surrounding Darfur, but also in the evolution of the R2P, and as such, will receive special

attention here, but also because this issue speaks to what is one of the central principles of the

international system, namely that of sovereignty as well as the accompanying norm of non-

intervention.

Ibid.

Ibid, 33.

Chapter 2

This chapter aims to provide a background to humanitarian intervention in order to provide a

basis from which to judge the significance of the Report, as well as the concepts and the ideas

that it introduced. Furthermore, a central theme of this chapter is the contentious nature of

humanitarian intervention, something which has had important implications in the debate

around R2P, as well as the principle's evolution. Toward this end, this chapter provides a

discussion on the definition and meaning of intervention, from where the focus will shift to

the concept of humanitarian intervention. The third part of the chapter deals with intervention

(including military) and the U.N. Charter, discussing firstly the argument that humanitarian

intervention is legal, and secondly, suggesting that it is illegal.

Intervention refers to a range of non-consensual actions, which is often believed to

"challenge the principle of state sovereignty"

directly, or

as Wheeler and Bellamy define it

"in terms of a coercive breach of the walls of the castle of sovereignty."

The term's actual

meaning can be drawn from the contexts within which it occurs, as well as the purposes for

which it is undertaken.

Where a target state provides unqualified consent or makes a

genuine request, actions are not considered intervention, and consent, if it is to be legally

valid, "should emanate from the legal government of a sovereign state and be freely given."

Furthermore, any means of interference that does not result in coercion in the domestic affairs

of a particular state is not considered intervention.

In fact, a primary objective of foreign

policy is to persuade both hostile and friendly states alike, to undertake changes in behaviour

that are in line with foreign policy goals.

Such a definition of intervention is of course not

exhaustive, as broader definitions of the term have always been in existence. For instance, in

the contemporary era where the international system is characterised by asymmetrical power

relations, foreign direct investment (FDI) and economic activities are perceived by some as

forms of `intervention'.

Because the issue of consent has been identified here as one criterion for determining

what is considered intervention and what is not, a brief return to it is warranted here. There

are some grey areas with regard to consent, and which relate to both military and economic

International Commission on Intervention and State Sovereignty (ICISS), "The Responsibility to Protect:

Research Bibliography, Background (Ottawa: International Development Research Centre, 2001), 15.

Nicholas J. Wheeler and Alex J. Bellamy, "Humanitarian Intervention in World Politics," in The Globalization

of World Politics: An Introduction to International Relations, eds. John Baylis and Steve Smith (Oxford: Oxford

University Press, 2005), 557.

ICISS, Research Bibliography, Background, 16.

Ibid.

measures.

In some instances the call for military intervention from the target state potential-

ly involves "so much arm-twisting, including economic pressure from Washington-based

financial institutions, as to effectively constitute coercion."

A number of terms have

emerged in thinking about what constitutes coerced consent, including that of `coercive

inducement', and towards ensuring that the request for intervention is not in fact spurious,

rather than frame the term merely as a lack of consent, conceptualising it "as a matter of

factual intrusiveness"

may go some way towards achieving this objective. For a number of

definitions of intervention, rather than see consent as an absolute concept, it may be more

useful to think of it as a continuum.

There is no doubt that the non-consensual use of

military force against another state amounts to intervention, but similarly so too is the

utilization of non-military measures such as economic and political sanctions, international

criminal prosecution and arms embargoes.

"Intervention is a concept with a distinct charac-

ter. This character lies in the use of "forcible" or "non-forcible" measures against a state,

without its consent, solely on account of its internal or external behaviour."

Although the

most frequent end to which intervention has been employed is the protection and safeguarding

of significant interests of the intervening state(s), the justification of intervention on the basis

of human suffering has a long history, and will be discussed in the following section, I believe

it prudent to end this section with R. J. Vincent's definition of intervention:

Activity undertaken by a state, a group within a state, a group of states or an international organi-

zation which interferes coercively in the domestic affairs of another state. It is a discrete event hav-

ing a beginning and an end, and it is aimed at the authority structure of the target state. It is not

necessarily lawful or unlawful, but it does break a conventional pattern of international relations.

The roots of the notion of humanitarian intervention by foreign states following the

failure of a state to discharge its responsibility to its citizens can be traced to Hugo Grotius

writing in the 16

Century.

Grotius asserted that a foreign state could support the citizens of

another state in instances where the target state is engaged in repression of its citizens, who are

in turn engaged in legitimate resistance to such repression.

However, it is only after 1840

that the first references to humanitarian intervention emerged in international legal writing,

Ibid.

R. J. Vincent, Nonintervention and International Order (Princeton, NJ: Princeton University Press, 1974), 13,

quoted in Nicholas J. Wheeler and Alex J. Bellamy, "Humanitarian Intervention in World Politics," In The

Globalization of World Politics: An Introduction to International Relations, eds. John Baylis and Steve Smith

(Oxford: Oxford University Press, 2005), 557.

Quinn, 6.

Ibid.

and two interventions stand out as primarily responsible for this.

The first was the 1827

British, French and Russian intervention in Greece to avert Turkish massacres and halt the

suppression of peoples with ties to insurgents, and the second was the 1860 French interven-

tion in Syria aimed at the protection of Maronite Christians.

From the period 1827 1906,

there were no fewer than five "prominent interventions undertaken by European powers

against the Ottoman Empire,"

and by the second decade of the 20

Century, the rationale

underlying intervention had widened to "include the protection of nationals living abroad."

State abuse of sovereignty by cruel and brutal treatment of those within the ambit of its

power, be those nationals or non-nationals was the primary cause for calls for intervention.

States that engaged in such behaviour were perceived as having opened the door to action by

any foreign state or group of states that were willing to intervene. Ellery Stowell illustrates

humanitarian intervention thus

"the reliance on force for the justifiable purpose of protecting

the inhabitants of another state from the treatment which is so arbitrary and persistently

abusive as to exceed the limits of that authority within which the sovereign is presumed to act

with reason and justice."

However, intervention has and continues to be approached and

regarded with suspicion, as many have cast a doubtful eye over the earliest instances of

humanitarian intervention. Critics of humanitarian intervention assert that given

the lack of an

impartial and unbiased mechanism by which to determine when humanitarian intervention is

permissible, states are likely to employ humanitarian justifications and motives as a pretext to

veil the pursuit of political, economic or strategic interests.

This argument has been extended

and those who find credence with this line of reasoning claim that humanitarian intervention

will become a weapon of the strong employed against the weak.

Furthermore, it is doubtless

that even when in situations where the goals were less questionable, "the paternalism of

intervening powers which were self appointed custodians of morality and human conscience,

as well as the guarantors of international order and security undermined the credibility of the

enterprise."

ICISS, Research Bibliography, Background, 16.

Ibid.

Ibid, 17.

Ellery Stowell, Intervention in International Law (Washington, DC: J. Byrne, 1921), 53, quoted in Internation-

al Commission on Intervention and State Sovereignty (ICISS), "The Responsibility to Protect: Research

Bibliography, Background (Ottawa: International Development Research Centre, 2001), 17.

ICISS, Research Bibliography, Background, 17; Wheeler and Bellamy, 558.

Wheeler and Bellamy, 558.

ICISS, Research Bibliography, Background, 17.

By the end of the nineteenth century a large number of legal scholars believed "that a

doctrine of humanitarian intervention existed in customary international law,"

although this

claim was disputed to a significant degree. The significance of these conclusions are contest-

ed, with some legal scholars arguing that such a doctrine was undoubtedly established in pre-

Charter state practice before 1945,

"and that it is the parameters, not the existence, of the

doctrine that are open to debate."

This claim is of course rejected, with other scholars

pointing firstly to state practice pre-1945, and the lack of support therein for a "right of

humanitarian intervention,"

and secondly, citing inconsistency in state practice, especially in

the twentieth century.

What is evident is that this idea of intervention underwent substantial

evolution prior to the emergence of an international system equipped with mechanisms and

institutions tasked with the protection of human rights and maintenance of international order.

The definition of humanitarian intervention given above is somewhat dated, and Ken-

neth Roth provides a definition thereof that is very much in line with that provided for

intervention above, namely, "military intervention without the consent of the government

whose territory is being invaded,"

but qualifies this by stating that only "the imperative of

stopping ongoing or imminent mass slaughter might justify the risk to life."

Fernando Tesón

provides a definition of humanitarian intervention that omits the issue of consent, depicting it

as "proportionate help, including forcible help, provided by governments (individually or in

alliances) to individuals in another state who are victims of severe tyranny (denial of human

rights by their own government) or anarchy (denial of human rights by collapse of social

order)."

What these authors share in terms of their understanding of humanitarian intervention,

is that both subscribe to a set of principles that either guide or justify/legitimate humanitarian

intervention. Roth identifies five factors which, once the abovementioned threshold is met,

determine whether military action can be labelled as humanitarian. First, the resort to military

force must be "the last reasonable option."

Secondly, the primary motive or purpose driving

the intervention must necessarily be humanitarian.

Third, the intervention must be carried

out with the outmost respect for international humanitarian law and human rights, fourth, it

must not cause more harm than good, and finally, the intervention "should ideally, though not

ICISS, Research Bibliography, Background, 17; Wheeler and Bellamy, 558.

ICISS, Research Bibliography, Background, 17.

Wheeler and Bellamy, 558.

ICISS, Research Bibliography, Background, 17.

Kenneth Roth, "Was the Iraq War a Humanitarian Intervention?" Journal of Military Ethics 5 (2006): 85.

Ibid.

Fernando R. Tesón, "Ending Tyranny in Iraq," Ethics & International Affairs 19 (2005): 2.

Roth, 85.

Ibid.

necessarily be endorsed by the U.N. Security Council or another body with significant

multilateral authority."

Tesón on the other hand provides five principles which are intended

to guide humanitarian interventions; firstly, putting an end to anarchy or tyranny must be the

aim to which justifiable intervention is directed.

Secondly, the doctrine of double effect

"the permissibility of causing serious harm as a side effect of promoting some good end,

coupled with an adequate theory of costs and benefits"

- apply to and govern humanitarian

intervention, as it does all wars. Third, in general terms, it is only the most severe cases of

tyranny or anarchy that satisfy the call for humanitarian intervention.

Fourth, the interven-

tion must be welcomed by the victims of anarchy,

and finally, "humanitarian intervention

should preferably receive the approval or support of the community of democratic states."

Thus, although these two authors differ on the precise principles to guide humanitarian

intervention, these examples are provided to illustrate the evolution of the concept. What this

also shows is that one will be hard pressed to find a uniform definition of humanitarian

intervention, that the principles guiding it are likely to overlap but will have some divergence,

and that humanitarian intervention remains a contentious issue in the international system.

The 20

Century restriction on the "use of force in intervention"

can be traced to the

Peace of Westphalia, concluded in 1648.

Furthermore, the initial "restrictions on recourse to

war"

were envisioned in the 1928 Kellog-Briand Pact, and the system later crystallized into

its contemporary form, as expressed in the U.N. Charter. The threat or actual "use of force

against the territorial integrity and political independence of states"

has since 1945 been

prohibited under the U.N. Charter's Article 2 (4), which grants exception "for the collective

use of force under Chapter VII,"

and for collective or individual self-defence in a situation of

an armed attack under Article 51.

Despite the fact that the prohibition on the use of force

appears explicitly clear, questions regarding the legality of humanitarian intervention, as for

instance in 1946

a prominent legal scholar continued his argument that intervention is

permissible by law when a "state is guilty of cruelties against its nationals in a way that denied

Ibid, 85-6.

Tesón, 2.

Ibid, 2-3.

Ibid, 3.

Quinn, 6.

Ibid.

ICISS, Research, Bibliography, Background, 17.

Ibid.

their fundamental human rights and shocked the conscience of humankind."

However, with

regard to the forceful intervention by a state or group of states aimed at the protection of "the

citizens of another state, the Charter is silent."

Turning to the question of whether or not humanitarian intervention is legal in terms of

the U.N. Charter, there are two opposing points of view on this issue. Firstly, there are those

who assert that not only is humanitarian intervention legal, but it is also legitimate.

These

proponents of humanitarian intervention "frequently cite the purposes of the UN Charter."

Article 1(3) of the Charter states that an explicit function of the U.N. relates to the achieve-

ment of international co-operation in the promotion and encouragement of respect for funda-

mental freedoms and human rights for all

irrespective of sex, religion, language or race.

Furthermore, the preamble to the Charter "reaffirm[s] faith in fundamental human rights."

Article 13(1)(b) affords the General Assembly the authority and power to facilitate the

achievement and fulfilment of human rights, and Article 55(c) requests that the U.N. promote

"universal respect for, and observance of, human rights and fundamental freedoms."

Article

62(2) affords the Economic and Social Council (ECOSOC) the power and authority to "make

recommendations for the purpose of promoting respect for, and observance of, human rights

and fundamental freedoms for all,"

and Article 68 empowers the Council to establish

commissions for the promotion and advancement of human rights.

Although these provi-

sions are not a comprehensive list of all the articles of the U.N. Charter that are concerned

with the protection of human rights, it is nonetheless clear from the abovementioned articles

that the promotion and advancement of human rights are a central concern of the U.N.

Charter. Furthermore, the argument can undoubtedly be made that in certain instances "hu-

manitarian intervention is consistent with the objectives of the U.N. Charter.

Article 2(4) of the U.N. Charter emphasises the prohibition of

the use or threat of

force "against the territorial integrity or political independence of any state."

Regarding

political independence and territorial integrity, it is arguable that an authentic humanitarian

Ibid.

Quinn, 7.

Ronli Sifris, "Operation Iraqi Freedom: United States v Iraq The Legality of the War," Melbourne Journal of

International Law 4 (2003): 29.

Ibid.

"Charter of the United Nations," The United Nations (U.N.), accessed October 2, 2010,

http://www.un.org/en/documents/charter/preamble.shtml

Ibid, http://www.un.org/en/documents/charter/chapter9.shtml

Ibid, http://www.un.org/en/documents/charter/chapter10.shtml

Ibid.

Sifris, 30.

U.N., http://www.un.org/en/documents/charter/chapter1.shtml

intervention results in neither political subjugation nor territorial conquest.

Firstly, the rule

asserts that the territorial integrity of a state must be protected from the use of force by

another, meaning that "a state's territory must be kept integral that is, no parts of it may be

forcibly separated and given over to another state."

Thus, provided that the territorial

boundaries of the state in question remain intact, the argument can be made that humanitarian

intervention does not amount to a breach of Article 2(4).

If one perceives the political

independence of a given state as referring to the "right of the people of a state to political

independence,"

then humanitarian intervention directed towards the protection of the people

"would affirm the state's political independence, rather than violate it."

This view has been

extrapolated and the conclusion has been drawn that even in the event that the government of

the state in question is overthrown, its political independence is left unthreatened,

as through

its oppression of its citizens, the government is perceived as having suffered a loss of legiti-

macy.

Turning to the argument that humanitarian intervention is illegal; the approach which

asserts that humanitarian intervention is in fact legal is a claim which appeals to an individu-

al's sense of compassion and justice.

However, an argument can be made "that such an

approach does not accord with a commonsense construction of the UN Charter."

Whereas

humanitarian intervention is not explicitly mentioned in the Charter,

the notion of sovereign-

ty and the norm of non-intervention that flows from it are clearly articulated by the Charter.

Two provisions of the Charter cast doubt over whether "forcible self-help to protect human

rights"

remains acceptable in terms of international law. Firstly, in terms of Article 2(4) of

the Charter, all states reject "the threat or use of force against the territorial integrity or

political independence of any state,"

which is qualified by the provision relating to self-

defen

e which is contained in Article 51. In the second instance, Article 2(7) prohibits U.N.

intervention "in matters which are essentially within the domestic jurisdiction of any state,"

Sifris, 30.

Anthony D'Amato, "There is No Norm of Intervention or Non-Intervention in International Law," Interna-

tional Legal Theory 7 (2001): 39.

Sifris, 30.

Ibid.

Ibd.

Sifris, 30; Quinn, 7.

Richard Lillich, "Intervention to Protect Human Rights," McGill Law Journal 15 (1969): 205, quoted in Ronli

Sifris, "Operation Iraqi Freedom: United States v Iraq The Legality of the War," Melbourne Journal of

International Law 4 (2003): 31.

U.N., http://www.un.org/en/documents/charter/chapter1.shtml

Ibid.

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Title

The Evolution of the Responsibility to Protect: From the ICISS to the 2005 World Summit

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Nicolaas A. Smit (Author)

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2013

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