By Jonathan Fryer
Ever since the Peace of Westphalia of 1648, which ended Europe’s Thirty Years War, the concept of the nation state and the principle of national sovereignty have together been central to international relations. Although first applied to a limited number of countries – predominantly European monarchies – over time they have taken on a global significance, especially since the independence of former colonies. Thus the United Nations, the post-war world family, brings together 193 sovereign states – though interestingly in the name of their peoples, rather than their governments.
The invasion of a sovereign state by an outside power is an accepted justification for war (e.g. Germany’s invasion of Poland in 1939 and Iraq’s invasion of Kuwait in 1990). The country that has been thus violated can call on outside assistance, which may actually be formalised within a treaty, such as those covering the NATO member states, which are obliged to go to each other’s aid, and the six (Arabian) Gulf Cooperation Council countries. But at least until recently, the accepted wisdom was that in all but the most exceptional circumstances national governments – of whatever type – bear the sole responsibility for running their own country’s affairs and safeguarding its internal security. Indeed, some states, notably the People’s Republic of China, object strongly to any sort of outside interference, including criticism of their human rights record. It is worth noting, however, that while for millennia Imperial China incorporated the principle of the Mandate of Heaven – the divine right of the Emperor to rule – it also accepted that an Emperor could sacrifice that right if he ruled extremely badly, and could thus be legitimately overthrown, usually leading to a change in dynasty. Implicit in this example is the assumption that any ruler or government has a responsibility to protect its own people – from hunger, poverty, abuse, invasion or the like – and deserves retribution if it does not.
But what happens when a government signally fails in that responsibility and the country’s people are unable to overthrow the government, either through elections or by revolution or other means? When does it become the international community’s responsibility to protect an oppressed or endangered population? Who should do it? And how should it happen? These are just some of the difficult questions now faced by governments worldwide.
From a liberal perspective, there are clear moral imperatives which should at least make such decisions easier. First and foremost is an unequivocal commitment to the defence of human rights. The world cannot simply stand idly by while gross violations of human rights take place within a country, though this begs the question of when exactly such violations should be considered to have surpassed the level of unacceptability. Sometimes the answer is clear, such as in 1988, in the final stages of the Iran-Iraq War, when the Iraqi President Saddam Hussein launched a horrific poison gas attack on his own country’s Kurdish population at Halabja. More than a decade later, in March 2010, the post-Saddam Iraqi High Criminal Court acknowledged that the attack had been an act of genocide. A Dutch court had reached a similar verdict five years previously and sentenced a Dutch businessman, who had brokered the deal for exporting to Iraq the chemicals concerned, to 15 years in jail. The later sustained assault on Iraq’s Kurds after the First Gulf War and the consequent refugee crisis triggered the imposition of a no-fly zone over the Kurdistan region of Iraq by the US, the UK and France. Many would say that in that case, international intervention was clearly justifiable, but unfortunately not all cases of human rights abuses (including charges of genocide) are so clear-cut.
The second core concept which is relevant to the current debate on R2P is Freedom, to recognise both individual and collective freedoms in key areas such as movement, association, expression, information and participatory democracy. However, the relativity relating to Freedom is even more problematic than that relating to Human Rights when it comes to making judgments about the performance of other countries’ governments and the consequent moral obligation on the international community to embark on some form of intervention or punitive action. To cite just one example, the suppression of freedoms in Myanmar (Burma) is self-evident, yet there is little consensus within the international community about what to do about it, with Japan, for one, arguing the case for ‘positive engagement’.
R2P as a concept in international law
It is only over the past decade or so that there has been serious discussion about the right (some people might say ‘duty’) of humanitarian intervention, by which a state or a group of states can intervene coercively, including using military action if necessary, against another state in order to protect people at risk in that state – what has become known as R2P or the international Responsibility to Protect. In 2000, the then UN Secretary General, Kofi Annan, highlighted the central dilemma of the related debate about whether R2P overrides national sovereignty when he declared, ‘if humanitarian intervention is, indeed, an unacceptable assault on national sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that affect every precept of our common humanity?’
Rwanda in particular still resonates in the collective guilty conscience of the world which did so little, until it was too late, to stop the 1994 genocide perpetrated against the Tutsi minority and the consequent reprisals against the majority Hutu. Questions were asked at the time whether African lives were worth any less than others (to which any sound Liberal would of course respond ‘No!’). But why did the world not intervene in Rwanda, or indeed in Cambodia in the late 1970s, yet did so in Somalia, Bosnia and Kosovo – in the last-mentioned case involving a successful NATO military operation without specific UN authority. In the Kosovo case, the related issues of ethnic conflict and ethnic cleansing were seen by sufficient countries as justification for outside intervention in 1999. As the Canadian writer and Liberal politician Michael Ignatieff explained in his book State Failure (2003), the rationale behind humanitarian intervention in such instances is that countries (in this case Serbia) that are unable to maintain order within their borders and are suffering from raging ethnic tensions are in fact ‘failed states’; presenting a challenge to stability, they therefore do not deserve to retain the international rights of sovereign countries, or so the argument goes.
Yet the historical record highlights in relation to different parts of the world a woeful inconsistency, even in the 21st century, and the tragedy of millions of lost lives has been the price for non-intervention in the worst cases. One of the most glaring examples of insufficient international action has been Darfur in Sudan, where Islamic militias sympathetic to the government have been involved in the decimation of the indigenous population through slaughter, house- and crop-burning, mass evictions and rape. The level of violence against the people of Darfur has led many Western governments and NGOs to describe what has been happening as genocide, and the International Criminal Court (ICC) in 2008 issued an associated arrest warrant for the Sudanese President Omar al-Bashir. He nonetheless remains firmly in power in Khartoum, apparently immune and certainly still vociferously supported by some of the more illiberal regimes in Africa and the Arab world.
It clearly is a matter of contention about when a genocide can or cannot be said to have taken place (the Turks and Armenians are still arguing about this nearly a century after the terrible events during the First World War). In 1994, during the horrendous killings in Rwanda, several Western countries seemed to be in a state of denial about whether genocide was or was not taking place. But International Law does acknowledge the heinous criminal nature of genocide. The Convention on Genocide, passed by the UN General Assembly in December 1948, still has resonance and relevance today, in that its first Article 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 and to punish [my italics].’ This could be seen as legitimising action taken to prevent genocide even when it proves impossible to get a formal resolution on the matter passed by the UN Security Council.
Given this background of inconsistency and uncertainty relating to gross violations of International Law one can easily understand the recent desire to define a set of internationally acceptable criteria which can be applied in current and future cases in which there might be a need for humanitarian intervention, including possible military action if all else fails. Already, the core concept of R2P is recognised as a new element in the ever-evolving body of International Law, but for politicians, there needs to be much more than a core concept. It would be useful to draw up a set of well-argued guidelines that could help political parties and governments make judgements and take decisions, singularly or severally, knowing that they do this not based on a purely emotional response, but rather on a rational, humanitarian one, in accordance with International Law – which itself is rightly occupying a more prominent place in international relations in our increasingly inter-dependent world.
International Commission on Intervention and State Sovereignty (ICSS)
A significant amount of groundwork was done in this field by the government of Canada, in collaboration with various foundations, which together established in 2000 the International Commission on Intervention and State Sovereignty, initiated by Canada’s former Foreign Minister Lloyd Axworthy. The ICSS prepared a Report that was submitted to the UN General Assembly the following year, in the hope of moving forward towards an international consensus. How far forward, or not, that consensus has in fact been moved in the intervening decade will be discussed later in this paper, but let us consider the main findings and recommendations of the ICSS.
Two core principles were identified:
a) State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself.
b) When a population is suffering serious harm, as the result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.
Three distinct elements of the Responsibility to Protect were defined:
a) The responsibility to prevent: to address both the root causes and the direct causes of internal conflict and other man-made crises putting human life at risk.
b) The responsibility to react: to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecutions, and in extreme cases military intervention.
c) The responsibility to rebuild: to provide, particularly after military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.
Of the three elements, prevention was seen as being the most important single dimension of the responsibility to protect: ‘prevention options should always be exhausted before intervention is contemplated, and more commitment and resources and resources must be devoted to it,’ the Report said.
The 9/11 attacks on New York and Washington occurred while the ICSS Report was being finalised. Though terrorism – especially international terrorism of that kind – was largely outside the Commission’s remit, 9/11 and its aftermath inevitably affected the international climate into which the Report emerged, undoubtedly blunting its impact as a result. The main concern, at least in the West, with the United States still the acknowledged world ‘Leader’, became the so-called War on Terror, resulting in foreign intervention in Afghanistan – still ongoing – and two years later, the controversial US invasion of Iraq, in which Britain was Washington’s only ally of major significance. Significantly, Responsibility to Protect was not used by Bush and Blair as a major justification for the Iraq intervention – although there was plenty of evidence of Saddam Hussein’s oppression of his own people, including the Marsh Arabs. Instead, the argument was deployed that Saddam presented an external threat, through his supposed possession of hidden weapons of mass destruction. Eight years on, the intervention remains controversial, not just because of the high number of lives lost and the colossal amount of material destruction during the war but also because Iraq is a more fragmented and in many ways insecure country now than it was back in 2003.
Since the invasion of Iraq, there has been a great deal of debate in academic circles about so-called precautionary intervention, which could be said, in some cases, to respond to the ‘responsibility to prevent’. The idea in this case is that in principle it should be possible to predict some man-made humanitarian disasters and therefore intervene to prevent them. Libya (of which more below) is an interesting case in point. The UN-authorised intervention in Libya in early 2011 took place because there was good reason to believe that Muammar Gaddafi was preparing to slaughter a sizeable proportion of the population if Benghazi if his army successfully recaptured the city from rebel forces. Given what both he and one of his sons, Saif al-Islam, had declared on television there was indeed due cause for concern. But does the international community – or any constituent part of it – have a crystal ball capable of foretelling what atrocities will be committed if precautionary intervention does not take place? It would be difficult to reply with an unequivocal ‘yes’.
Indeed, there is a danger that people may misread the signs, or read too much into them. Dick Cheney, George W Bush’s Vice-President, argued in relation to Iran that if there was a 1 per cent probability of Tehran developing nuclear weapons then the United States must treat it as a certainty. This became known as Cheney’s “1 per cent doctrine”, supplementing Bush’s own doctrine of ‘preventive war’. Even some of Washington’s closest allies were sceptical about Cheney’s argument, or else worried that it opened the door to deadly mistakes, whose ramifications could turn out to be worse than the supposed threat that was being foreseen. Encouraging (or at least not dissuading) a hypothetical pre-emptive Israeli attack on Iranian nuclear facilities would seem to fall neatly into that category.
Nonetheless, in the view of Professor John Williams of the School of Government and International Affairs at Durham University, ‘the precautionary principle is a useful tool for directing thinking towards areas of uncertainty and unpredictability based upon the limits of knowledge and asking how we should act as a result.’ He adds, ‘Risks must be taken in situations such as that in Libya or the Ivory Coast and those risks come in many forms: immediate risks of “collateral damage” arising from the use of military force; medium term risks to the stability of neighbouring states; long term risks to established patterns of political practice, to name but a few… Precaution is about honesty in the face of uncertainty and the limits of knowledge.’
More mainstream in the political arena is the concept of liberal interventionism, espoused by such figures as Lord Ashdown, former UK Liberal leader and High Representative in Bosnia-Herzegovina. This doctrine essentially supports foreign military engagement in countries in which a significant proportion of the population faces a mortal threat from their government or fellow citizens. Sierra Leone is a good example. There is no doubt that both there and in Liberia, further bloodshed and appalling human rights abuses were averted by intervention, even though that itself of course had a human cost. Moreover, a new dimension was added to the liberal intervention scenario in these West African cases, in that Charles Taylor, Liberia’s ousted President, was successfully transferred to The Hague to face charges of crimes against humanity. This can be seen as a welcome advance in the implementation of international law.
Despite such successes, liberal interventionism has been criticised in some quarters as a new kind of neo-imperialism, particularly when the United States takes a leading role. Though Nigeria has been involved in some related operations, as well as in peace-keeping, in West Africa, it is significant that sub- Saharan Africa’s other major regional power, South Africa, has been far more critical in its attitude. Notably, the ANC government in Pretoria strongly opposed action beyond sanctions against Robert Mugabe’s thuggish regime in Zimbabwe.
It is probably fair to say that the argument for liberal interventionism was not being won in much of Africa, Asia and Latin America, at least until recent events in Libya. Though the Obama administration wisely decided to let the Europeans – British, French and Italians primarily – take the lead in the 2011 Libyan intervention, it nonetheless participated. And it is from a US National Security Advisor, Ben Rhodes, that we get this interesting reflection on why Liberal Interventionism might be considered a success in Libya: ‘The fact that it is Libyans marching into Tripoli not only provides a basis for legitimacy for this but will also provide a contrast to situations when the foreign government is the occupier. While there will be great challenges ahead, one of the positive aspects here is that the Libyans are the ones who are undertaking the regime change and the ones leading the transition.’ In other words, liberal interventionism works best when sufficient locals are on board, and preferably in the driving seat.
The British Conservative Prime Minister, David Cameron, who swiftly went to visit ‘Free Libya’ with the equally triumphant French President, Nicolas Sarkozy after the ousting of the Gaddafi government, declared afterwards that the Libyan operation had shown that three conditions need to be met before international action can be taken against repressive regimes:
1) The UN must agree to the action;
2) Other countries in the region must be supportive in the way that the Arab League supported the no-fly zone over Libya;
3) Action must be tailored to the needs of the particular country in question.
This marks a notable departure from what one might call the Bush-Blair Doctrine of preventive intervention, but it is not necessarily an argument that can be endorsed 100 per cent, if global humanitarian principles are seen as having greater legitimacy than the political positioning that sometimes goes on inside the UN Security Council.
If Libya, why not Syria?
The so-called Arab Spring that began in Tunisia in December 2010 has changed our perceptions not only of North Africa and the Middle East but also about how dictators and human rights violators can be removed – ideally by a country’s own people, but sometimes maybe with a little help from their friends. Tunisia and Egypt were both remarkable examples of longstanding despots who, backed up by ruthless security forces, kept their populations quiescent largely through fear; yet when there was sufficient critical mass among protestors, these dictators were shown to be paper tigers. Ali Abdullah Saleh of Yemen may well follow Ben Ali and Mubarak out of the exit door, though it is too soon to say in any of these three cases whether a healthy, stable, functioning democratic future awaits. At the time of writing, Libya’s fate is even more uncertain, not just because Gaddafi is still on the run but because of the diverse nature of his opponents. What happens then is not guaranteed, and Western governments applauding the turn of events would do well to remember the third of the ICSS’s elements of Responsibility to Protect: the responsibility to rebuild.
Meanwhile, another uncomfortable query needs to be addressed: if Libya was a casebook study of R2P being put into action, why has intervention not occurred in Syria? The Syrian regime has shown itself to be just as nasty as its Libyan counterpart; indeed, demonstrators are still being killed in the streets as this paper is being written. Moreover, while at the beginning of Syria’s protests in April 2011 local activists urged foreign powers to stay well out of things, their pleas have started to change, with some now calling for foreign intervention, to stop further bloodshed. Moreover, Turkey – which had previously enjoyed good relations with Syria’s Bashar al-Assad, as part of its Good Neighbours policy – has now not only called on him to go but has hinted strongly that it might be obliged to intervene if the situation continues or, perish the thought, get worse. The West has issued verbal condemnations and ratcheted up sanctions, including threatening some of al-Assad’s immediate circle with ICC prosecutions, but there is no appetite for any form of military intervention. That is not just because the major Western military powers and their defence budgets are overstretched (think Afghanistan, Iraq, Libya), but also because they fear any direct military intervention in Syria could set the whole Middle East alight. The region is a tinderbox as it is, with some Palestinians moreover demanding to know R2P why doesn’t seem to apply to them.
So when should R2P swing into action?
We can usefully turn once more to the findings of the ICSS, in its 2001 report, as this provides some helpful parameters.
First, it argues for what it calls ‘the just cause threshold’, acknowledging that that military intervention for the purpose of human protection is ‘an exceptional and extraordinary measure’. To be warranted, there must be serious and irreparable harm occurring, or imminently likely to occur, of one or both of the following two kinds:
a) Large-scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation.
b) Large-scale ethnic cleansing, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.
Moreover, the ICSS recommended four cautionary principles (though here they were using ‘precautionary’ in a different sense from that discussed above):
a) Right intention: the primary purpose of the intervention, whatever other motives intervening states may have, must be to halt or avert human suffering. Right intention is better assured with multilateral operations, clearly supported by regional opinion and the victims concerned.
b) Last resort: military intervention can only be justified when every non-military option for the prevention or peaceful resolution of the crisis has been explored, with reasonable grounds for believing that lesser measures would not have succeeded.
c) Proportional means: the scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the defined human protection objective.
d) Reasonable prospects: there must be a reasonable chance of success of halting or averting the suffering which has justified the intervention, with the consequences of action not likely to be worse than the consequences of inaction.
I quote the ICSS Report at length, not because I think it has all the answers but rather because there is no point re-inventing the wheel. Nonetheless, in the light of intervening events, one might make additional points or draw some different conclusions. This is particularly true in regard to the authority needed for action.
Is the UN fit for purpose?
There was a widespread assumption at the end of the Cold War that the United Nations might be able to solve all the world’s conflicts. The experience of the past 20 years has shown that is clearly not the case. Indeed, getting Security Council approval for international action such as humanitarian intervention is often proving extremely difficult, even if the concept of Responsibility to Protect is now large accepted as part of International Law. As referred to earlier, China has indicated that it does not in general like the idea of external powers intervening in other states’ affairs; after all, if it did give the green light often, that could provoke renewed international interest in China’s own policy towards ethnic and religious minorities, especially in Tibet and Xinjiang. Moreover, the Soviet Union may have collapsed, and Communism with it, but Russia still does not appreciate what it sometimes sees as Western adventurism in areas of the world in which it has an historic political or economic interest. Even more disconcertingly, as has been shown in recent months, some non-aligned non-permanent members of the Security Council such as Brazil cannot be counted on as automatically supportive of R2P missions. Regarding Libya, the same was even true of Germany.
In an ideal world, all R2P interventions should have the blessing of the UN in the form of a Security Council mandate. But that may become even more difficult than it is now if (as doubtless should be the case) some new permanent members of the Security Council are appointed, including Brazil, India, Japan and Germany. But even if there is UN support for a mission, the UN itself is not equipped to run most R2P operations or to provide blue-helmeted troops, unless these are on a relatively small scale. This means that often the Coalition of the Willing, to use a hackneyed phrase, is made up of the usual suspects, mainly the United States, Britain, France, Italy and a number of other NATO member states. It is not necessarily healthy that NATO should be perceived as the world’s policeman, however. It was a welcome innovation that Qatar and the UAE made a contribution (albeit small) to the operation in Libya. And it seems likely that Turkey (itself a NATO member, of course) will get more involved in future actions as it flexes its muscles as an emerging global power.
There are other worrying issues about the UN’s record which also cast doubts over the global body’s suitability as ultimate arbiter and enforcer in all situations. The most disconcerting is the frequency of accusations of violent malpractice by members of UN forces, in places as disparate as DR Congo and Haiti. These charges have often included rape (female and male), but other misdemeanours by UN troops (European and Latin American, as well as African) have meant that the UN has a tarnished reputation in some parts of the world. Indeed, in some places UN troops have come to be seen as an occupying force rather than a liberating or protecting one. Some critics have argued that shortcomings in the United Nations Organization Mission in the Democratic Republic of Congo (MONUC) in particular have actually made the situation there worse, not better.
Another problem is the fact that the UN does not have its own standing army and must instead rely on member states providing troops and equipment for use in any situation, even when the Security Council has authorised intervention. The bureaucracy involved, both in New York and in the ministries of defence of member states, means that it can take many months to get any sort of viable UN operation going – which may be too slow to prevent mass killings or human rights violations. There is a strong case to argue that part of the reform needed at the UN should be the creation of a corps of military officers and possibly other ranks which would be available for deployment by the UN Secretary General when the Security Council has authorised an intervention under a R2P resolution.
Time for regional responsibility
The involvement of countries from the region in which the problem situation exists not only has logistical benefits, but it also helps to add legitimacy to any R2P operation. Europe should in general accept the prime responsibility for its own geographical area and immediate neighbourhood, just as South East Asia should in its area, sub-Saharan Africa the same, Latin America and so forth. However, so far there has not been a marked willingness in most of these regions to accept such a responsibility (Nigeria in West Africa being a notable exception). Indeed, in the case of Myanmar (Burma), even the more democratic fellow members of ASEAN have been reluctant to do more than give the military junta a slap on the wrist. And when the authorities in Bahrain tried to put down protests in Manama, killing people at the Pearl Roundabout, Saudi Arabia led a GCC intervention force which backed the government, not the protestors. But that does not mean that increased regional responsibility is inevitably doomed. It may offer the only long-term solution.
A future for R2P?
Liberals are by nature in favour of peace rather than war, but Responsibility to Protect is proving to be a principle of International Law that is fundamentally in tune with liberal values and therefore obliges us to accept the consequences, even when in extreme cases this involves military action and therefore some loss of life. We cannot individually or collectively turn a blind eye to actual or impending humanitarian catastrophes in which some form of external intervention is needed. That by no means implies that military action is always the right answer. On the contrary, it should be the last resort after other diplomatic or economic methods have been tried, but not so long after that the human cost in the country concerned is too high.
The writer, lecturer and broadcaster Jonathan Fryer is the Liberal Democrats’ representative on the Executive of Liberal International and has reported on conflict situations around the world. He lectures part time at London University’s School of Oriental and African Studies (SOAS). This article is an edited version of a paper presented at a Liberal International conference on R2P in London, October 2011.