No organization in the world embodies as many dreams, yet delivers as many frustrations, as the United Nations. Established to provide predictability in a world in constant flux, the United Nations—a bridge between power and principles, between state-based realism and universal idealism—is at once the symbol of humanity’s collective aspirations for a better life in a safer world for all. Since its inception in 1945, UN has reached considerable milestones trying to achieve collective security but there have been just as many failures as mentioned by General Kofi Annan in his address to the 54th General Assembly in the aftermath of NATO’s intervention in Kosovo:
The inability of the international community in Kosovo to reconcile these two equally compelling interests – universal legitimacy and effectiveness in defense of human rights – has revealed the core challenge to the Security Council and the UN as a whole in the next century: to forge unity behind the principle that massive and systematic violations of human rights – wherever they may take place – should not be allowed to stand.
The global interdependence and the fact that it makes it unsuitable to be a mere powerless spectator in the face of gross human rights violations is indisputable. Such indifference despite the awareness of brutalities and deprivation builds hostile feelings and resentment. These circumstances affect everybody’s rights, well-being, and security regardless of whether they make a serious call on one’s conscience. The world was a silent witness to the horrors committed in Rwanda during the genocide of 1994 where 8,00,000 people were murdered in three months. It was a failure of collective conscience and the solemn civic responsibility of the international community. The indifference and inaction of the international community to that episode remains one of the most shameful events since the Holocaust.
It was against this background that the ‘Responsibility to protect’ (R2p) principle was propounded. “Responsibility to protect” was introduced in a 2001 report by International Commission on Intervention and State Sovereignty (ICISS). It states that it is the primary responsibility of the state to protect its citizens from human rights violations and in the event that the state fails to do so or it becomes the perpetrator of such violations, the responsibility to protect shifts to the international community. It applies to genocide, war crimes, ethnic cleansing, and crimes against humanity but does not address many other rights articulated in certain human rights conventions, such as political freedom and economic rights.
‘Responsibility to protect’ (R2p) has come a long way since its inception. It was first backed by the UN General Assembly in 2005 and reaffirmed by the UNSC in Resolution 1674 of 2006. Rooted in human rights and international humanitarian law, the norm squarely embraces the victims’ point of view and interests, rather than questionable state-centred motivations. It does so by configuring a permanent duty to protect individuals against abusive behaviour. Such duty is a function of sovereignty and should be fulfilled primarily by the State concerned. According to R2p, while the responsibility to protect begins with national governments, it does not necessarily end at nations’ borders. Thus, while “each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity, if the state fails to do so, the international community, through the United Nations, also has the responsibility.” Furthermore, the principle calls for coercive action through the Security Council as a last resort to protect populations, including economic sanctions or even military action.
R2p is limited to a tiny set of severe human rights violations and creates a hierarchy of actors and of interventions. Bona fide U.N action is privileged over unilateralism and peaceful action is privileged over violent modes. The principle limits the scope of intervention to the goal of protection which is why the U.S. invasion of Iraq cannot be justified using the same. Unfortunately, there is a high possibility that the concept of responsibility to protect can be manipulated to become a licence for the powerful states to intervene whenever they deem fit even if a large part of the world begs to differ.
The text of the resolution is limited to U.N. action, but its implications are much broader. Sovereignty does not entail the right to commit or passively permit atrocities against their own populations by the states, nor does it provide a ground to oppose coercive actions halting the commission of those atrocities. R2p sets a new yardstick for the international community including the United Nations. Failure to take an action to protect populations from genocide and other atrocities is a failure to fulfill a distinctly recognized duty implicating not only individual states, but also the United Nations. If the United Nations fails to act, it is institutionally broken, at least with respect to case at hand. Thus, the principle asserts a “responsibility” for the international community, acting through the United Nations, to protect populations from genocide , and declares that the United Nations is “prepared” to take “timely and decisive” coercive action if peaceful means prove inadequate.
R2P Under International Law
Apart from the Genocide Convention, there has not been any doctrine firmly established under international law dealing with the responsibility of third-party States in failing to prevent war crimes, crimes against humanity and ethnic cleansing among others. The core of the responsibility to protect principle lies on the undisputed obligation of international law which is the prevention and punishment of genocide. Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide declares that ‘genocide, whether committed in time of peace or in time of war, is a crime under international law which States undertake to prevent and to punish’. This law is binding on all the States that are a party to the treaty.
Article 1 of the Genocide Convention not only deals with the punitive aspect of the principle but the preventive aspect as well. It states that: ‘The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent emphasis added and to punish’. The International Court of Justice elaborated on the preventive dimension with regard to State-to-State disputes, in the case of Bosnia-Herzegovina v. Serbia. The Court held Serbia guilty for violating Article 1 of the Genocide Convention, for failure to prevent genocide in the territory of its neighbouring State.
It laid down various parameters to assess whether a State has discharged its obligation. One among them was the State’s capacity to effectively influence the actions of persons likely to commit, or committing, genocide. This capacity is dependent on the strength of political links as well as other kinds of links and the geographical distance from the scene of events, between the State’s authorities and the main actors in the events. It goes without saying that such influence exercised must occur within the limits prescribed by international law.
The Permanent Five Members (P5), in particular, hold a heavier responsibility than the other States to ensure the protection of civilians everywhere. In accordance with the International Court of Justice’s analysis, a failure to act can carry legal consequences especially when the exercise or threat of a veto blocks action that is deemed necessary by the other members to avert genocide, or crimes against humanity. The International Commission on Intervention and State Responsibility expressed that the veto power remains a major hurdle to effective and prompt responses that have the capacity to stop or avert a significant humanitarian crisis. It also recommended that the P5 should agree not to exert their veto powers on a matter involving grave humanitarian crises when their vital national interests were not involved.
Relying on the analysis of the International Court of Justice, it is incomprehensible why the exercise of a veto blocking an initiative designed to prevent, or put an end to, genocide would not constitute a violation of the vetoing States’ obligations under the Genocide Convention. Without doubt, the concept of responsibility to protect holds that all States are jointly burdened with a responsibility to protect which they share irrespective of their location. In a nutshell, proximity may have been predominantly geographic in nature in Bosnia and Herzegovina v. Serbia case but, in principle, it also calls for an examination of relevant historic, political, economic, as well as geographic links. The judgement puts an additional onus on those States that are geographically nearer to a crisis and those that are better positioned to prevent genocide due to their capacity to wield influence and their possession of information.
For a crime to qualify as a crime against humanity, it must be committed systematically on a large scale and there must be evidence linking the perpetrators’ acts to a state or organizational policy according to the Rome Statute of the International Criminal Court. R2P when properly appreciated and put into practice would act as a check on hazards which have the potential to increase the risks to which civilian populations are exposed.
Perpetrators of human rights abuse always seek to conceal the reality by discrediting the information that affirms their culpability through demands of further proof. They question the authenticity of the sources and the credentials of the person placing such accusations. They stall or deflect action and buying time and spreading misinformation is in their own self-interest. An impending genocide is almost always preceded by patterns of gross and systematic human rights abuses, and thus, Human Rights Council should be the pre-eminent forum for early warning and prevention to achieve its aim of the protection of all human rights and fundamental freedoms for all.
R2P and Military Intervention
There is a persisting confusion about the relationship between R2p and non-consensual military intervention. Furthermore, there’s a popular belief among the less powerful states (especially the ones that are a part of the Non-Aligned Movement), that R2p is a more sophisticated way of conceptualizing and legitimizing non-consensual intervention in the name of humanitarian assistance. These concerns have been expressed by the states since the inception of this concept. R2p legitimizes unilateral intervention without the sanction of the UNSC which can have serious ramifications.
To win the support for coercive interference, governments have tried to use R2P since 2005. One such example is the French attempt to use R2P in May 2008, to persuade the Security Council in the wake of Cyclone Nargis, to authorize the forcible distribution of humanitarian assistance. Naturally, it is understandable that many governments continue to suspect that R2P as being a concealed strategem for the legitimization of unilateral intervention. But this deep-seated scepticism towards intervention did not necessarily translate into a rejection of the underlying purpose of R2P which is the prevention of genocide and mass atrocities, and the protection of vulnerable populations.
However, the commission’s focus on non-consensual intervention and apparent openness to intervention not authorized by the Security Council meant that R2P was unlikely to command consensus among world leaders without some important revisions. R2P is well placed to reduce the temptation of policy-makers to focus exclusively on military responses to grave humanitarian problems.20
As wars became less a matter of conflict between states and more a struggle between forces within states, the number of internally displaced expanded. Within a span of one decade, 1 million IDPs grew to 25 million IDPs globally.22 IDPs were afforded no special international protection of the kind offered to refugees as they remained within national borders. As a result, they remained critically vulnerable to the whims or failings of their home state. Unsurprisingly, therefore, a combination of violence, disease and deprivation contrived to make mortality rates among IDPs higher than among the general population, sometimes by as much as 50 times.23 The internally displaced are ironically assumed to be under the care of their own governments despite the fact that their displacement is often caused by the same state authorities.25
Where a state was unable to fulfil its responsibilities, it was asserted, that it should invite and welcome international assistance.27 It was suggested that sovereignty as responsibility implied the existence of a ‘higher authority capable of holding supposed sovereigns accountable’ and that this higher authority should place the common good ahead of the national interests of its members. They were premised on the notion that when states are unwilling or unable to protect their citizens from grave harm, the principle of non-interference ‘yields to the responsibility to protect’.