Kapok Tree Diplomacy

“Why the Responsibility to Protect (R2P) Doctrine is Incompatible with the Legal Principles of National Sovereignty and Domestic Jurisdiction” by Kapok Tree Diplomacy

(C) Kapok Tree Diplomacy. April 2011. All rights reserved.  PREVIEW

Section One – Origins and Core Principles of R2P

Report of the International Commission on Intervention and State Sovereignty (ICISS) (2001)

State sovereignty has been defined as, “the rightful entitlement to exclusive, unqualified, and supreme rule within a delimited territory” (Smith, Baylis & Owens 25). But when, where and how may that legitimate and authoritative ‘rightful entitlement’ be challenged? UNSG Annan noted in a 1999 Press Release (SG/SM/7136, GA 9596), “State sovereignty, in its most basic sense, is being redefined by the forces of globalization and international cooperation” (qtd. in Dunoff, Ratner & Wippman 954). It is against this backdrop of rapidly changing international legal perspectives on state sovereignty that the ICISS makes its case.

Core Principles.  The ICISS lays out a set of basic principles and criteria that justify intervention based on the idea that “sovereign states have a responsibility to protect their own citizens from avoidable catastrophe” (ICISS viii). Under the ICISS Basic Principles, “State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself;” thus, “Where a population is suffering serious harm, as a 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” (ICISS XI). So then the question becomes what constitutes “serious harm,” and just who exactly is responsible for intervening, and under what conditions can they do so?

Table of Contents

I.    Origins and Core Principles of R2P

A.  Report of the International Commission on Intervention and State Sovereignty (ICISS) (2001)

B.  Core Principles

1.  Threshhold for Military Intervention

2.  United Nations and INGO Support for R2P

II.   Arguments in Favor of R2P and Challenges to Implementation

A.   Sovereignty and Intervention According to the UN Charter

B.   Pro R2P Argument #1 – Protecting human rights transcends state sovereignty

C.   Pro R2P Argument #2 – Cost of inaction is greater than the cost of action

D.   Pro R2P Argument #3 – No threat to territorial integrity or political independence

E.   Pro R2P Argument #4 – Intervention will help deter future atrocities

F.   Pro R2P Argument #5 – Common interest’ trumps national interests and sovereignty

G.   Challenges to Implementation

III.  Arguments against the Legality and Implementation of R2P

A.  Con R2P Argument #1 – Concept of intervention not widely accepted as a norm

B.  Con R2P Argument #2 – States have the option not the obligation to intervene

C.  Con R2P Argument #3 – Removes military decisions and control from national governments

D.  Con R2P Argument #4 – R2P is not an effective deterrent

E.  Con R2P Argument #5 – UNSC & UNGA should not have sole responsibility to act

F.  Con R2P Argument #6 – The “precautionary principles” are subjective and impractical

G.  Con R2P Argument #7 – Legal authorization or obligation from UN Charter does not exist

H.  Con R2P Argument #8 – Current events undermine R2P argument and effectiveness

IV.  Conclusion

Full essay contains 3,055 words; 11 pages double-spaced; 12 references.

The posts, views and opinions expressed in this paper and on this post are completely my own and do not represent the views or opinions of the Department of Defense (DoD), the Department of the Navy (DON) or any of the Armed Forces.

Introduction  

In the aftermath of unresponsive and slow reactions by the United Nations Security Council (UNSC) to serious humanitarian catastrophes in Kosovo, Bosnia, Rwanda and Somalia, the British Foreign Office and a Canadian independent commission submitted proposals to UN Secretary General (UNSG) Kofi Annan, in 1999 and 2001 respectively, arguing for a limited right of military and humanitarian intervention under certain conditions to protect civilians from mass atrocities (Byers 104). Over the past ten years, an emerging norm and set of principles known as the Responsibility to Protect (R2P) has surfaced based upon the idea that “sovereignty is not a prerogative but a responsibility” (Axworthy qtd. in Byers 106). 

Does it lead to selective authorizations for intervention by the UNSC? Could it lead to inappropriate and unnecessary humanitarian interventions that do more harm than good? This research paper seeks to answer the above questions in the affirmative and establish the principle that R2P is illegal based on the basic principles of national sovereignty and domestic jurisdiction found in international law. Section One of the essay will cover the origins of R2P. Section Two will delineate the challenges of implementing R2P and arguments in favor of its legality and implementation. Section Three will address arguments against the legality and implementation of R2P. Section Four will summarize the conclusions and make the case that R2P is a dangerous and unnecessary concept that compromises national sovereignty and violates domestic jurisdiction. 

Section One – Origins and Core Principles of R2P  

Report of the International Commission on Intervention and State Sovereignty (ICISS) (2001) State sovereignty has been defined as, “the rightful entitlement to exclusive, unqualified, and supreme rule within a delimited territory” (Smith, Baylis & Owens 25). But when, where and how may that legitimate and authoritative ‘rightful entitlement’ be challenged? UNSG Annan noted in a 1999 Press Release (SG/SM/7136, GA 9596), “State sovereignty, in its most basic sense, is being redefined by the forces of globalization and international cooperation” (qtd. in Dunoff, Ratner & Wippman 954). It is against this backdrop of rapidly changing international legal perspectives on state sovereignty that the ICISS makes its case. 

Core Principles. The ICISS lays out a set of basic principles and criteria that justify intervention based on the idea that “sovereign states have a responsibility to protect their own citizens from avoidable catastrophe” (ICISS viii). Under the ICISS Basic Principles, “State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself;” thus, “Where a population is suffering serious harm, as a 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” (ICISS XI). So then the question becomes what constitutes “serious harm,” and just who exactly is responsible for intervening, and under what conditions can they do so? 

Although the ICISS declares “the concept of sovereignty” and the “responsibility of the Security Council, under Article 24 of the UN Charter” to maintain international peace (ICISS XI) to be necessary foundations of R2P, the ICISS weakens the concept of sovereignty by declaring that states also have an obligation to “prevent root causes” of internal conflict in fragile states, “react to situations of compelling human need,” and rebuild states where intervention occurred (XI). By allowing potentially intrusive measures under the guise of prevention, the ICISS takes on an eerily pre-emptive posture. It also begs the question of who becomes the recipient of such generous wealth transfers for prevention.  

Threshold for Military Intervention  

The ICISS recommends the UNSC consider the following criteria of legitimacy before authorizing or endorsing the use of military force in an intervention (XII): 

(1) Just Cause – Serious or irreparable harm occurring to human beings ( 

2) Right Intention – Halt or avert human suffering; multilateral means is preferred  

(3) Last Resort – All non-military options exhausted  

(4) Proportional Means – Use the minimum necessary scale, duration and intensity  

(5) Reasonable Prospects – Balance of consequences are likelier worse due to inaction  

(6) Right Authority – UNSC is preferable but not the only body for authorization of force 

The ICISS defines the all important principle of serious harm as “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; or large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape” (XII). The UN High Level Panel on Threats, Challenges and Change (2004) endorsed the ICISS basic criteria of legitimacy for military intervention and added, “There is a growing recognition that the issue is not the “right to intervene” of any State, but the “responsibility to protect” of every State,” and concluded, “We endorse the emerging norm that there is a collective international responsibility to protect” (57-58). The UN has continued to build upon this initiative to establish a new international norm.  

United Nations and INGO Support for R2P 

 The UN General Assembly (UNGA) affirmed in its 2005 World Summit Outcome in paragraphs 138 and 139, “Each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity,” and “the international community … also has the responsibility … to help to protect populations (qtd. in ICG, “Key Issues: R2P”). UNSC Resolutions 1674 (28 Apr 2006) and 1706 (31 Aug 2006) affirmed paragraphs 138 and 139 of the World Summit Outcome, while Res. 1706 cited R2P in calling for UN peacekeepers in Darfur (ICG 2011).  

Moreover, UNSG Ban Ki-moon called for a three-pillar strategy in his 2009 report, Implementing the Responsibility to Protect (UN Doc. A/63/677), to help the UN implement the 2005 World Summit criteria. He implores the international community to “take timely and decisive action if national authorities are manifestly failing to protect their populations” from genocide, war crimes, ethnic cleansing and crimes against humanity (IPI 2009). Several international non-governmental associations (INGOs) such as Human Rights Watch, the World Federalist Movement and the Global Centre for the Responsibility to Protect at the City University of New York are also pushing for broader R2P implementation and acceptance (Groves 2008). Such actions, however, cannot make an illegal norm legal. 

Section Two – Arguments in Favor of R2P and Challenges to Implementation  

Sovereignty and Intervention According to the UN Charter. In order to understand how the ICISS, the UN and other organizations interpret the idea of a duty-based social order where the UN charter establishes the “right” and obligation of any state to intervene into other states, one must look at the unique way they interpret sovereignty and the UN Charter to justify their actions. The UN Charter has a lot to say about matters of sovereignty and intervention, though it does not discuss any circumstances whereby states forfeit sovereignty. Article 24 of the UN Charter confers upon the UNSC the “primary responsibility for the maintenance of international peace and security,” while Article 33 calls upon Member states to settle disputes first and foremost by peaceful means (1945). Article 39 expressly authorizes the UNSC to “determine the existence of any threat to the peace,” and Articles 40 and 41 charge the UNSC with determining what non-military or military measures respectively “may be necessary to maintain or restore international peace and security.”  

In context to determining these threats to the peace and what actions may be taken to address them, the UNSC abides by the overriding principles that “Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state” (Art 2.4), and that “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state” (Art. 2.7). That would seem to rule out military interventions, even to prevent mass atrocities, but R2P proponents often point out that humanitarian interventions do not seek alterations to borders or political regime changes. But even if the UNSC authorizes intervention, no state is obligated to intervene, and secondly, the UN Charter says nothing of removing internal conflicts from domestic jurisdiction. 

Pro R2P – Argument #1. Protecting human rights transcends state sovereignty. Proponents like Timothy Weiss argue that preventing another Rwanda is critical, noting that “two-thirds of civilians under siege in twelve war-torn societies” wanted more intervention not less in a survey conducted by the International Committee of the Red Cross (210).  

Axworthy called R2P a “way of coming both at the tyrants who hide behind the walls of sovereignty and at those states who can’t or won’t protect their citizens” (qtd. in Byers 106), while ICISS declared “the Charter’s strong bias against military intervention is not to be regarded as absolute when decisive action is required on human protection grounds” (16). 

Pro R2P – Argument #2. The cost of inaction is greater than the cost of action. Cost can be measured in both human lives and in resources. Weiss notes that “4 million have died in the Congo,” “2.5 million have been displaced” in western Sudan and many more would have died in Kosovo without intervention (210, 213). Intervening may cost both lives and money, but the net loss is less than that of standing aside.  

Pro R2P – Argument # 3. Intervention does not threaten the territorial integrity or political independence of the state subjected to R2P. Intervention is done precisely to restore or preserve the legitimate territorial integrity and political independence of a state that is failing in its most basic sovereign duty, to protect its own citizens. 

Pro R2P – Argument #4. Intervention will help deter future atrocities. Dictators will think twice about attacking their own people, knowing sovereignty doesn’t protect them from impunity (Endersby 2006).  

Pro R2P – Argument #5. The ‘common interest’ trumps national interests and sovereignty. The Universal Declaration of Human Rights (UDHR), the UN Charter, and other conventions call upon nations to promote and preserve the human rights which are violated by genocide, war crimes, crimes against humanity and ethnic cleansing.  

Challenges to Implementation.  

Gareth Evans notes that the biggest challenges to the implementation of R2P includes the fact that it has yet to become “a genuinely operationally effective norm”, a lack of institutional preparedness and conflict prevention capacity, and a lack of political will to respond to crises effectively (2007). But some nations like the U.S. are also hesitant to allow global interests to trump national interests and sovereignty. Evans lists four major misunderstandings that prevent R2P’s wholesale implementation: (1) R2P is only about military intervention, (2) R2P is about the protection of everyone from everything, (3) every conflict … is an actual or potential ‘R2P situation,’ and (4) R2P justifies coercive military intervention in every case where large-scale loss of life, or large-scale ethnic cleansing, is occurring” (2007). This author will grant that the first Evans lists four major misunderstandings that prevent R2P’s wholesale implementation:  

(1) R2P is only about military intervention,  

(2) R2P is about the protection of everyone from everything,  

(3) every conflict … is an actual or potential ‘R2P situation,’ and  

(4) R2P justifies coercive military intervention in every case where large-scale loss of life, or large-scale ethnic cleansing, is occurring” (2007).  

This author will grant that the first two are genuine misunderstandings, but the latter two may not be misunderstandings at all. The following section represents my rebuttal to the above listed pro-R2P arguments.  

Section Three – Arguments against the Legality and Implementation of R2P 

Con R2P – Argument #1. The concept that states are obligated to intervene in the affairs of other states who are unable or unwilling to prevent atrocities is not widely accepted, no matter how much Gareth Evans and other proponents of R2P wish it to be. Not all states have ratified the conventions and treaties that ICISS claims to legitimize R2P as a norm. As Steven Groves of the Heritage Foundation points out, some nations, particularly the United States, could bear a disproportionate share of the military burden and costs to intervene in states that fall outside the limits of national interests (2008). 

Con R2P – Argument #2. Although the crimes covered by the R2P guiding principles are serious, heinous and reprehensible, perhaps even requiring that its perpetrators be brought to justice under jus cogens norms, those same jus cogens norms and erga omnes obligations do not require or obligate that the prevention of the crimes or the intervention to stop the crimes occur through the mechanism of an international or multilateral operation. Under a UNSC authorization or endorsement, states have the option, not the obligation to intervene. Consent to intervention under a UNSC authorization should not be confused with a wholesale delegation of national jurisdiction over these crimes to an international entity.  

Con R2P – Argument #3. Important and costly decisions regarding the use of force are transferred to the UNSC and out of the hands of national governments. Removing sovereign control over military resources and foreign policy could weaken the ability of many nations to protect their own people by stretching their security resources too thin.  

Con R2P – Argument #4. R2P is not an effective deterrent. Enderby says, “[R2P] may make atrocities more likely, by encouraging rebel groups to provoke ill-disciplined government forces into committing gross human rights violations, such as massacres, in the hope that such a response will draw in international forces on their own side” (2006).  

Con R2P – Argument #5. The UNSC or UNGA should not be allowed to dictate when, where or how the use of force is applied to protect a member state or preserve its national interests. The UNSC has the primary responsibility for the maintenance of international peace, but not the only responsibility. Groves adds, “The Security Council’s failure to act in Rwanda and Srebrenica — the very situations that gave rise to the ICISS effort — is apparently of little consequence” in proclaiming the UNSC as the “most appropriate body” to deal with military intervention issues (2008). A “universal” responsibility to protect contradicts the exclusive domain of the UNSC to administer each action to support its principles.  

Con R2P – Argument #6. The “precautionary principles” are subjective and impractical. The determination on whether large-scale loss of life is imminent is a good example of this subjective determination. Don’t most wars, including internal wars, cause large-scale loss of life? The R2P doctrine is admirable in its efforts to eradicate all war and violence against human beings, but very idealistic and unrealistic. 

The determination that all non-military options have been exhausted could easily be miscalculated and politicized. By limiting the scale, duration and intensity of military intervention by the proportionality principle, R2P may be limiting the chances of military forces to restore enduring peace and security where there is more work to be done than merely stopping acts of genocide, rape and crimes against humanity (Groves 2008).  

Con R2P – Argument #7. The UN Charter does not legally authorize or obligate states to intervene in other states that cannot or will not prevent violence to their own citizens. R2P cannot be considered to be a legally binding international customary norm. According to Article 51, the use of military force is only authorized in legitimate scenarios of self-defense, not to obligate member states to prevent war crimes, genocide and other atrocities, as bad as those crimes are. Military interventions conducted without state consent do in fact violate the territorial integrity and political independence of the subject state, and some participating states may be more interested in protecting economic interests than stopping war crimes.  

Con R2P – Argument #8 – Current Example – The current example of Libya proves the flimsiness of the R2P legal argument. UN Resolution 1973 (2011) which authorized a no-fly zone in Libya to “protect civilians” is a great example of how R2P principles are being misused to authorize multilateral military actions in scenarios that do not even meet the R2P criteria. It cannot be proven that Libya was about to undergo large-scale loss of life or ethnic cleansing. It is also unlikely that military intervention was the last resort or that proportional use of force has a reasonable chance of permanently halting all of the suffering being that the rebels are not peaceful angels. What is to stop them from brutalizing the Qadhafi supporters after the intervention concludes its bombing missions?  

Moreover, what of the other nations in the Middle East crying out for similar intervention like Syria, Eqypt, Algeria and Bahrain? Critics are correct to point out that the UNSC cannot help but be selective in where it authorizes R2P interventions. It doesn’t have the resources or political will to respond to every conflict that fits its criteria. The world is not aligned in such a perfect, idealistic pattern. 

Section Four – Conclusion  

In one sense the ICISS got it right with its emphasis on conflict prevention as a top priority. It would be easier and cheaper to prevent fragile states from failing through capacity building and prevention activities as opposed to intervening with stabilization forces after they’ve already failed. However, while states may have moral or political grounds for military interventions, they do not have legal grounds as understood through the lens of national sovereignty, domestic jurisdiction and the UN Charter. Byers concludes, “Since clear treaty provisions prevail over customary international law, a customary rule allowing intervention would be insufficient to override Article 2(4) of the UN Charter” (100). 

Mission creep, unwarranted transfers of wealth, lengthy stays in countries of scant value to other states’ national interests, and vast ongoing reconstruction costs are the likely result of most R2P interventions. Even worse, assigning decisions regarding foreign policy and military intervention exclusively to the UNSC foolishly cedes control of national sovereignty to a world body with a subpar track record in preventing atrocities and removes decisions over such actions from the jurisdiction of the rightful consent of the governed. UNSG Ban Ki-moon’s three pillar strategy to implement R2P is a disaster waiting to unfold and goes against the historical legal foundation of the UN Charter as traditionally interpreted. 

The UNSC cannot forcibly obligate states to prevent or react to every conflict where large-scale loss of life might occur or rebuild other states post-conflict. R2P has taken up the mantle of the naïve and idealistic liberal principles behind the failed League of Nations. If R2P gains acceptance as a new norm of humanitarian intervention, the international community will find itself in perpetual war not perpetual peace to the detriment of its own effectiveness, credibility, limited resources and political will. 

Works Cited  

Byers, M. (2005). War Law: Understanding International Law and Armed Conflict. New York, NY, USA: Grove Press, an imprint of Grove/Atlantic, Inc.  

Dunoff, J. L., Ratner, S. R., & Wippman, D. (2006). International Law: Norms, Actors, Process: A Problem-Oriented Approach (2nd ed.). New York, NY, USA: Aspen Publishers, Inc. Endersby, A. (2010, January 15).  

United Nations, Responsibility to Protect Civilians. Retrieved April 23, 2011, from International Debate Education Association: http://www.idebate.org/debatabase/topic_details.php?topicID=439  

Evans, G. (2007, November 30). Delivering on the Responsibility to Protect: Four Misunderstandings, Three Challenges and How To Overcome Them. Retrieved March 23, 2011, from Personal Website of Gareth Evans: http://www.gevans.org/speeches/speech243.html 

Groves, S. (2008, May 1). The U.S. Should Reject the U.N. “Responsibility to Protect” Doctrine, Backgrounder #2130. Retrieved April 23, 2011, from The Heritage Foundation: http://www.heritage.org/Research/Reports/2008/05/The-US-ShouldReject-the-UN-Responsibility-to-Protect-Doctrine#_ftnref5  

International Commission on State Sovereignty and Intervention (ICSSI). (2001, December). The Responsibilityto Protect: Report of the International Commission on State Sovereignty and Intervention. (C.-C. Gareth Evans and Mohamed Sahnoun, Ed.) Retrieved April 23, 2011, from International Commission on State Sovereignty and Intervention (ICSSI): http://www.iciss.ca/pdf/Commission-Report.pdf 

International Crisis Group (ICG). (2011). Key Issues: Responsibility to Protect. Retrieved April 23, 2011, from International Crisis Group: http://www.crisisgroup.org/en/keyissues/responsibility-to-protect.aspx International Peace Institute (IPI). (2009, January 29).  

Secretary-General Releases Report on Implementing the Responsibility to Protect . Retrieved April 23, 2011, from International Peace Institute (IPI): http://www.ipinst.org/news/generalannouncement/89-secretary-general-releases-report-on-implementing-theresponsibility-to-protect.html  

Smith, S., Baylis, J., & Owens, P. (2008). Introduction. In S. Smith, J. Baylis, & P. Owens, The Globalization of World Politics: An Introduction to International Relations (4th ed.). New York: Oxford University Press. 

United Nations General Assembly. (2004, December 2). A More Secure World: Our Shared Responsibility | Report of the Secretary-General’s High Level Panel on Threats, Challenges and Change, A/59/565. Retrieved April 23, 2011, from United Nations General Assembly: http://www.un.org/secureworld/report.pdf  

United Nations Security Council. (2011, February 26). Security Council Approves ‘No-Fly Zone’ over Libya, Authorizing ‘All Necessary Measures’ to Protect Civilians, by Vote of 10 in Favour with 5 Abstentions, SC/10200 . Retrieved April 23, 2011, from United Nations: http://www.un.org/News/Press/docs/2011/sc10200.doc.htm#Resolution  

Weiss, T. G. (2006). Humanitarian Intervention after Kosovo: Commentary. In J. A. Mertus, & J. W. Helsing, Human Rights and Conflict: Exploring the Links between Rights, Law and Peacebuilding (pp. 209-215). Washington, DC: Endowment of the United States Institute of Peace.