16 March 2011
New Forms of Sovereignty and the Right to Protect (R2P)
By: Prof. Dr. Ingrid Detter de Frankopan— 2010-2011
Prof. Dr. Frankopan is Emeritus Professor of International Law at Stockholm University and sometime Fellow of Lady Margaret Hall and of St. Antony’s College, Oxford. She is now a practising Barrister in London. She holds two doctorates, a D.Phil. from Oxford and a Jur. Dr. degree from Stockholm, as well as a Licence en droit from Paris and a Diploma in European Law from Turin. She has published fourteen books on international law, including The Law of War, published by Cambridge University Press (2nd edn.., 2000; 3rd edn., in preparation). The following is a transcript of a seminar paper given by Prof. Dr. Ingrid Detter de Frankopan at the Thomas More Institute on 16 March 2011
Any discussion of ‘new aspects of sovereignty’ makes it appropriate to start speaking of what the ‘old aspects of sovereignty’ imply and of what sovereignty traditionally means. We are dealing with a word derived from Latin, superus, which means what is above or higher; and ‘sovereignty’ thus points to ‘the top authority’. Before the rise of Nation States in the sixteenth century the term sovereignty was used to denote the power of a king in his realm. The king was primarily concerned with his own subjects and with persons present in his territory. Only occasionally did a king arrange for protection of citizens or co-religious outside his own territory, that is to say ‘abroad’; this happened rarely but, for example, St. Louis promised in a decree of 1250 to look after the Maronites in Islamic countries.
Then, with the rise of Nation States in the sixteenth century we begin to perceive two particular aspects of sovereignty: internal sovereignty, that is to say the power the king exercises as the top authority over his subjects with whom he can do virtually anything. (This is the aspect which had been primarily relevant in earlier history.) But, as Jean Bodin explained in his Six livres de la république of 1576, there is also the external sovereignty which concerns relationships with other states. There had been little need to speak of external sovereignty earlier as states were not yet consolidated: there were not numerous individual states as there are today. External aspects of sovereignty had thus not been relevant earlier as there were few other clearly defined states with which there were regular contacts.
From the sixteenth century onwards it is accepted that all states are equal. Some may be large and some may be powerful; some may have natural resources which others lack. But in law they are all equal and have equal rights. Therefore, as it is expressed in Latin, par in parem non habet imperium, an equal has no power over other equals. It follows from the concept of equality that a state is required to refrain from non-interference in other countries. Conversely, a state is entitled to expect that other states do not interfere in its internal affairs. External sovereignty takes on increasing importance after the consolidation of established states, especially after the Peace of Westphalia in 1648 when there is a clear system of independent states.
After the rise of the Nation States it became usual to send diplomatic envoys and delegations to other states (there were few occasional examples of such a practice in earlier times, in Athens and Sparta, and in other situations). With regard to internal sovereignty, that is to say, the power of the king over all his subjects and, indeed, over all persons present in his territory, an exception was then made for diplomats. The presence of diplomats in a country limited the power of a king over such persons. If an envoy, a messenger, was sent from another state, he would not be killed or imprisoned. That was not based on the moral goodness of the recipient monarch, but rather on reciprocity in such matters. Much else, indeed, depended on this principle of reciprocity in the relationship between the newly consolidated states.
There were gradually minor signs of some development towards democracy and human rights. For a long time, however, kings and later governments claimed they could do virtually anything to their own people without protest or complaint. If there were occasional limitations to this power, such reduction of sovereignty was normally conceded in the interest of preserving power, rather than for any reasons of charity or kindness. But kings came to realise that they could not enjoy the support of their own subjects if they were too brutal with them.
With regard to external sovereignty, that is to say, the relationship with other states, it is important to note that the notion of non-intervention became accepted and recognised by all over the centuries and is now deeply entrenched in the modern legal system. Before the prohibition of war – essentially only when the Charter of the United Nations was drafted in 1945 – states attacked each other, from time to time, mainly to acquire more territory or for other selfish advantages. War is, of course, usually a form of intervention. But in peacetime states did respect that their power was limited to their own internal affairs and thus limited in territorial terms to their own country. After the prohibition of war in 1945 by the UN Charter the principle of non-intervention became a corner-stone of international relations.
The present legal regime thus prescribes a general prohibition of intervention in the affairs of another state. There is a caveat allowing the United Nations to enjoy an exception to this rule in the case of risk of war or threat to international peace and security under Chapter VII of the UN Charter.
Article 2.7 of the United Nations Charter declares:
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 or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.
In brief, this means that neither the UN, nor any state, (although the Charter only speaks of the UN), shall interfere in the garden of another. This obligation of non-intervention is coupled with the provision in article 2.4 which provides that:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
There is thus a further duty under this article not to interfere in other countries as their territorial integrity and political independence must be respected and preserved under the paramount obligation to refrain from force.
This was effectively how things stood, with regard to internal and external sovereignty, after the UN Charter entered into effect in 1946.
Shortly after World War II there were increased concerns about human rights and documents were drafted to define the rights of individuals. Thus, the UN Universal Declaration of Human Rights was signed in 1948. This Declaration was technically not legally binding but probably reflected what was already binding in international society by virtue of general rules. Such rules had, it is submitted, been widely accepted after the atrocities of World War II as minimum standards for treatment of human beings. The same year, 1948, the Genocide Convention was concluded and here there were clearly binding legal obligations to refrain from genocide and to prosecute its perpetrators. We may also mention the two UN Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, both concluded in 1966. All these documents limit the internal sovereignty of states – but the principle of non-intervention subsists, and there is no right conferred under any of the documents to intervene in another state.
Efforts to allow exceptions to the principle of non-intervention were, at times, discussed to permit intervention for ‘humanitarian’ purposes. Suggestions to this end had sometimes been put forward earlier. In 1910 there were articles in French journals about the relationship between intervention and sovereignty, proposing intervention where there was a humanitarian case to be made. The 1907 Hague Regulations for War also sought to protect certain groups of people by allowing for such action. But in spite of such discussions and in spite of such limited efforts, the United Nations Charter of 1945 made it quite clear that intervention in the affairs of another state is not permitted, for any reason.
The strict application of the principle of non-intervention was perpetuated and made even more categorical, not allowing for any exceptions, during the Cold War. Then, certain permanent members of the Security Council did not even permit general discussion of matters that they considered as ‘internal matters’. This attitude often prohibited even general discussion of human rights and treatment of states, especially with regard to the most forceful members of the Security Council. For example, the USSR, insisted that that there must be no discussion in the UN (or elsewhere) about human rights in that country as such matters were internal affairs, a concept that, said the USSR, must be construed widely. Any criticism of internal matters in the USSR would, according to numerous protests from that country, breach article 2(7) of the UN Charter mentioned above. The United States added to this attitude concerning internal affairs by stating, in the context of accepting jurisdiction of the International Court of Justice, that the United States alone will decide which matters pertain to the ‘internal’ sphere, exempt from the jurisdiction of the Court.
There were, however, signs of a growing concern for the treatment of people in other countries. There are certainly clear duties binding the State that stipulate how it must treat its citizens and other persons in its territory. But the over-riding duty not to intervene prevented states, for a long time, and still does prevent a state, from actually doing anything to protect such victims in another country
It is furthermore only in the case of massive excesses, of gross violations of fundamental human rights, that we may even consider any right of action of other states or of the United Nations. For other minor infringements of human rights there is a clear duty of other states not to interfere or to intervene in such matters and, as mentioned above, for a long time many claimed that there is not even any right to discuss or criticise such matters.
The principle of non-intervention is thus very much in force in the modern world. Why is that so? It might be that in some instances so called humanitarian intervention has been used as a cloak for other activities. During the Boxer Rebellion in China in 1900 the Western powers decided to intervene ostensibly to help people at risk. In fact, there were trade issues involved, and natural resources. This ‘humanitarian’ intervention appeared to have been carried out mostly for selfish reasons. Furthermore, did the United States intervene in Grenada to save the lives of five American students – as it stated in 1983 – or to depose the government and secure the export route for oil from Venezuela? There are many other examples of intervention that were not necessarily carried out for the noble motives stated.
It then becomes clear that what is called humanitarian intervention, carried out to ‘protect’ or ‘assist’ the citizens of another state, has often been used as a pretext for other activities, pursued for selfish ends. A state may intervene in another stating that it is doing this to save the lives of citizens or of other persons resident in that territory when at the heart of the matter it wishes to obtain certain political results.
Today, the need and value of oil is a major factor in such events. There have been recent interventions in countries endowed with oil, like Iraq and Libya and, at least in the first case, we may question the legality of operations. On the other hand, no one seems to want to intervene in Mugabe’s Zimbabwe where there are reports of violations of human rights. There may be diamonds and other natural resources in that country, but not oil! Short of becoming cynical about the motives for intervention, it must be conceded that aspirations for economic advantages often dim any intention to assist individuals by ‘humanitarian’ action.
In some cases it would appear that intervention is justified in the case of genocidal situations in a country. On the other hand, we must also consider the seriousness of any reduction of internal sovereignty. A state has clear duties to treat human beings well whether this concerns its actual citizens or other persons present in its territory. But if a state fails in this duty it does not immediately follow that another state – or the UN – is entitled to intervene to correct the situation. Besides, who is to decide at which level there is actual maltreatment of people in a state that would justify intervention?
The idea of the right or duty to intervene to alleviate human suffering was discussed in the context of the Biafran War of 1967–1970. In the follow-up to this crisis, the ‘Doctors without Borders’, or the ‘Médecins sans Frontiers‘ (MSF), was founded in 1971. One of its co-founders, a French doctor of medicine who later became Foreign Minister, Bernard Kouchner, insisted that this non-governmental organisation should be entitled to provide ‘humanitarian’ medical help whenever necessary. His insistence was often accepted and in some instances the MSF worked successfully in a number of countries. However, it must also be mentioned that at times the MSF had the consent in the country in which they provided medical care and if there is such consent we can no longer speak of the ‘intervention’ which usually denotes a hostile act. Yet, in other cases the MSF did not meet with such positive attitudes in a territorial government but managed through its prestige and influence (and with some courage) still to provide medical assistance. In 1999 the MSF received the Nobel Prize for its work.
In 1977 a provision was inserted in article 70 (1) and (2) of Protocol I to the Geneva Conventions, stipulating that an offer to provide humanitarian assistance would not be considered as ‘intervention’ or a ‘hostile act’. Resolution 43/131 of the UN General Assembly of 1988 also speaks of the right to provide humanitarian assistance to victims of natural disasters and another Resolution of 1990, 45/100, authorises corridors in cases of humanitarian urgency. But Resolutions of the General Assembly are not binding and the right to intervene for humanitarian reasons may thus not have any legal justification based on such Resolutions. The fact still remains that no state can intervene in another without the express consent of the territorial state in question or the specific authorisation of the UN.
This restraint also applies to other intra-state affairs, for example, concerns about the environment. These matters were discussed in the 1990s, especially at the UN Conference on Environment and Development in Rio de Janeiro in 1992. I advised the Brazilian Government at the time as it became apparent that Brazil had to argue, again under the principle of non-intervention, that it was not acceptable for other states to dictate to Brazil what it could do and not do within its own territory.
Brazil might accept that its environment is organically connected to the environment of the world. But if Brazil agreed not to fell trees in large areas of the Amazonian rainforest, in the interest of the global environment, the country would obviously be entitled to compensation from other states for this important reduction of its sovereign rights in its own territory. This claim for compensation was used as an important element in the negotiation of the settlement of the Brazilian debt as some considered that that debt, or at least the servicing of the debt, should be alleviated by the above-mentioned compensation if Brazil agreed to protect the rain forest more or less intact in the interests of the world despite its economic problems.
The term ‘humanitarian intervention’ had now become a loaded and negative term as many became suspicious of the motives for such action. So some decided to change the terminology. There is now much talk about ‘R2P’. People love acronyms, and only very confident and well-read people dare to admit that they do not know what one of these means! The R2P acronym, which stands for ‘Responsibility to Protect’, was coined in the 1980s by the French doctor, and later French Foreign Minister, Bernard Kouchner, who had co-founded the MSF. He wrote a book in 1987, together with the international lawyer Mario Bettati, about Le devoir d’ingérence, that is, in English, ‘The Duty to Intervene’. That gradually changed into ‘Le droit d’ingérence’, or ‘The Right to Intervene’ in a follow-up book by Bettati, published in 1996. The notion of R2P became very popular indeed in some countries, for many love to interfere in the business of others. But Dr. Kouchner’s and Mario Bettati’s ideas were not accepted by everyone.
It is clear, at set out above, that international law does not permit any general right to intervene in the internal matters of another state, for any reason. Marco Sassòli, who is a respected international lawyer, went on the attack against the new notion and claimed that R2P, as formulated by Kouchner and Bettati, led to unacceptable results which endangered the stability of international society. Sassòli pointed out that R2P is a highly dangerous notion, devised only to camouflage ‘humanitarian intervention’ by a clever linguistic terminological change. He published a book called The Emperor’s New Clothes. This was not a new edition of Hans Christian Andersen’s book for children, but rather about R2P, showing that this concept is merely humanitarian intervention renamed. The abbreviation, made the new concept seem so modern and acceptable, so Star-Wars-like, that it had to be good and right. Thus acceptance of the new doctrine of R2P all snowballed in the manner of an avalanche after 1991.
Then, around the year 2000, the non-aligned ‘Group of ‘77’, made up of developing nations, declared that they did not want any of the R2P doctrine. Many in Europe and in the United States had assumed that the developing countries in Group 77 would be grateful for help under the R2P doctrine: yet, these countries insisted that they wanted to manage their own business. Many former satellite states, now newly independent from Russia, and other post-communist states, were also far more concerned with their total independence than older established states, and they, too, were very much against this new notion which they perceived as threatening to reduce their newly won independence and sovereignty.
Another unexpected development was when 160 states endorsed the R2P doctrine at the 2005 United Nations Summit. Even China agreed that collective action might be allowed if there were massive infringements of human rights. It is questionable whether the representatives of China actually intended to go that far but, as accredited agents of the state, they did enter a legal engagement.
The Final Act of the Summit includes a section of what the above-mentioned right to collective action implies. The paragraph dealing with the right to intervene provides that:
collective action (may be taken) in a timely and decisive manner through the Security Council, if peaceful means are inadequate to guarantee stopping genocide and crimes against humanity.
We may note, first of all, that the document does speak of the Security Council which limits what individual states, or even the UN, can do under the R2P doctrine. A binding Resolution of the Security Council is thus required for the R2P doctrine to become operative.
Military action is normally precluded unless there is a situation of urgent self-defence or an empowering Resolution of the Security Council, usually based on the assessment of the Security Council that there is a threat to international peace and security. Without such legitimising self-defence or without such a Resolution, a state may not take action of military force against another state or intervene in the affairs of another state (unless it has the consent of such a state). The former United Kingdom Liberal-Democratic leader, Paddy Ashdown, said as recently as 2007 that nothing can be done, for example, in Zimbabwe unless the treatment of citizens and others becomes a threat to international peace and security. The situation today is that the Security Council appears to allow intervention if there is ‘massive’ maltreatment of citizens: such a situation is nowadays held to amount to threat to international peace and security as demonstrated in the Security Council Resolutions authorizing the ‘no-fly zone’ in Libya.
As we know, in the Falklands affair in 1982 there should have been a Security Council Resolution to entitle the United Kingdom to go to war. But Mrs. Thatcher was a very determined lady. She tried to obtain such a Resolution, but it was not forthcoming; and sometimes things cannot wait. I do think that military action was legal and justified in this case as the intervention was made to take back what belonged to the United Kingdom. The Falklands War clearly did not concern R2P but at the heart of this action was the legitimate interest of the United Kingdom to recuperate what had wrongly been taken away. Yet, this affair illustrates what can be done by states without a Security Council Resolution if such a decision is delayed and time is of the essence. There was little criticism of this form of action at the time.
In the second Iraq affair in 2003, the situation was different. Such an intervention in Iraq could have been legal if action had been taken at the time of the earlier Security Council Resolution when Saddam Hussein was killing Kurds in great numbers: action might then have been taken legally under R2P doctrine to save lives. It is, however, highly questionable whether states could intervene years later claiming – as they did – that the earlier UN Resolutions were still in operation to entitle such intervention. At this stage, nothing was really was going on in Iraq in terms of human rights violations to warrant an intervention. There was no other justification for the action – although it was incorrectly claimed that Saddam had weapons of mass destructions (WMDs) – and the legality of this intervention and ensuing war remains highly doubtful
The doctrine of R2P prescribes or allows intervention if there are massive violations of human rights on a genocidal level. The actions of Saddam Hussein in 2003 probably did not meet this requirement. On the other hand, the actions of Gaddafi in Libya in 2011, bombing his own citizens, ostensibly qualified in this respect.
At the same time, one must retain the notion of sovereignty in international society: there is as yet no obligation for statesmen totally to respect and to introduce democracy. There may be an emerging rule that a new state may not be recognised unless there is some form of democracy. But as far as already established states are concerned, it is questionable whether other states can intervene to impose democracy on them. As emphasised in this context already, it is really only if a government mistreats the people in its territory in a dramatic way that such treatment becomes a concern of others. In that sense, the behaviour of Gaddafi did became relevant to the R2P doctrine when he started bombing his own citizens. But that happened fairly late in the conflict when the rebels threatened to take over. Even then it is not clear whether other states may intervene to force a change of government. The UN Resolution in that case empowered states and NATO to apply a no-fly zone to ensure an end to the bombing of civilians, with the ancillary right to extend certain actions on land. But it remains uncertain under international law whether the UN Resolution entitled other states to remove the dictator or even to target him.
Idi Amin used his governmental power in Uganda in the 1970s to suppress and maltreat his own citizens. Tanzanian forces marched into Uganda and forcibly removed Amin from power. There were few protests that this would amount to an illegal intervention. Although there was no reference to R2P doctrine at the time, it may be that this was a case when the violation of human rights was on a scale that warranted military intervention to put a stop to such treatment of citizens.
Another example of humanitarian intervention, widely held to be legal, and also perhaps possible to subsume under the concept of R2P, was the action in 1978 by the Vietnamese to intervene in Cambodia to take out Pol Pot, the collector of skulls, whose violations of human rights were on an unparalleled scale. Here, too, there were few protests of illegality in spite of the fact that Vietnam itself had not always respected the law of war in its earlier conflict with the United States.
To revert to the operation of R2P doctrine today, it is important to realise that we are discussing a fluid and nebulous concept that could be very dangerous to the international legal system. The vital requirement in any set of legal rules is ‘foreseeability’: that is to say, that, before concluding a contract, before taking action or committing an act of any kind, one must know roughly what the consequences are going to be. It is dangerous to be without fixed rules, not to know if something is or is not right. But the elements that would justify R2P are not clear; they are not fixed and there is no common agreement on when and how action may be legal under the doctrine of R2P.
It is even difficult to trace the evolution of the different concepts and variations of R2P as initially it referred to the ‘duty’ to protect but then the ‘right’ to protect. Presumably this was then the ‘duty’ and the ‘right’ of other states to intervene when persons in another state were being maltreated by massive violations of human rights.
But now we speak ‘responsibility’ to protect. The ‘R’ in the R2P can thus mean either ‘right’ or ‘responsibility’ to protect. The terminology has thus now shifted to mean ‘responsibility’ to protect such victims. But whose responsibility? Initially the ‘right’ to protect was held to be enjoyed by other states to intervene to help victims of abuses of human rights in another state. Today most appear to hold that this responsibility is that of a territorial government to protect its own citizens – or other persons in its territory. But if a government fails in this duty to ‘protect’ persons in its own territory it appears that, other states, and the UN and NATO, may become entitled to intervene under R2P doctrine if there are massive violations of human rights or other forms of suffering of human beings. Yet it is not clear in exactly which situations such intervention will be held to be legal, at least when there is no empowering Resolution of the Security Council.
Unless there are fixed rules there is a dangerous uncertainty over where we stand in the legal system. Who is to decide whether forces are to go in to protect civilians? Francis Deng was an excellent Sudanese ambassador, and a politician, later appointed Adviser to the United Nations Secretary-General on genocide. He suggested that the responsibility to protect is that of a territorial state to protect his own citizens, in genocidal situations as well as in natural disasters. But he also emphasised that other states may only intervene if they have the consent of the territorial state in question or if there is a Resolution of the Security Council.
A result of this vague situation in international law with regard to R2P is that little may be done at present to prevent maltreatment or suffering of citizens in another country. There is now an unfortunate state of affairs where punishment of offenders may (perhaps) follow at a later date, but not all offenders are caught or taken to trial. Action is thus limited to following up rather than preventing outrages against human rights.
The International Criminal Court (ICC) may be competent and it may be possible to try to put up a cruel dictator to face trial in this Court in due course. But the way in which war crimes are tried nowadays is cumbersome and slow. Some cases have been going on in such tribunals for ten years. I was a moderator on a panel with the American Bar Association in Paris a couple of months ago. I was supposed to be the fictitious Secretary-General of the United Nations but real judges, defence counsel and prosecutors of these tribunals were present. I told them (as the omnipotent Secretary-General) that I was going to cancel their funding if they did not justify their existence by completing the jobs in hand. The Nuremberg trials, for better or worse, finished all their cases in forty-five days. To carry on with court cases for ten years or more, as is sometimes the case in the war crimes tribunals, may be very good for the lawyers, but hardly very efficient for international justice. Moreover, to punish perpetrators of evil only after the event is to work reactively rather than proactively. It is surely preferable to stop genocide like, for example, the one that took place in Rwanda, while it is actually going on in order to save at least a few lives. It is of little avail to the victims to bring perpetrators to justice years later.
As a woman, I should like to think that in the event of a military conflict, brave soldiers in uniform with sub-machine guns would protect me. I am afraid, however, that this does not always happen in the case of the soldiers working for the United Nations. That body tells its soldiers to come away and save themselves if things are too dangerous. But what about the civilians? In Kosovo the French contingent walked out as the situation was said to be too dangerous for the soldiers. In Srebenica the Dutch offered to help divide the men from the women and children. They had not even watched enough war films to realise that this might lead to a massacre. Indeed it did lead to a massive tragedy: over four thousand men and boys were killed within what was supposed to be a United Nations ‘safe haven’. There is clearly room to suggest that if the R2P notion serves any purpose, the UN soldiers should be the first to intervene to safeguard lives rather than to walk out and leave undefended civilians to their fate.
The United Nations Security Council will not move unless there is a threat to international peace and security. Admittedly, they have now extended the definition of such threats to include also major humanitarian disasters. But who are members of the Security Council? Important countries like China and Russia, permanent Members of the Security Council, hold to very strict ideas on sovereignty and non-intervention. Neither would allow intervention in its own country. To these major Powers this is a matter of sovereignty and few exceptions are ever to be made. Yet we must note the above-mentioned example of China’s signing up in 2005 concerning R2P in case of genocide.
Is there any other way of initiating action, short of action by the Security Council? Under the ‘Uniting for Peace Resolution’, GA Res. 377 (V) of 1950, the General Assembly may claim a right to act, if the Security Council is paralysed by inaction. For example, if there was a difficulty, with not all the permanent members being present or ready and willing to vote in the Security Council, the matter could be passed to the General Assembly under the so called ‘chaise vide’ doctrine. This has happened on occasion, as in the Korean War of 1950–1952, the Suez crisis in 1956 and the Namibian affair of 1981. Yet, the General Assembly is simply too big to take resolute action in times of international crisis. The Security Council may be sufficiently small to be effective but, on the other hand, this organ will often be hampered by the power of permanent members to stifle action.
Some have suggested that there should be an international army to exercise authority in times of massive violations of human rights. The problem is that even the European army, designed to operate on a smaller scale, does not seem to work. Others argue that all countries should be better armed, and that is obviously good news for arms traders, but it is probably dangerous to have too many arms in unstable states. If there are arms, they might well be used, just as we see rebel forces equipped with the most sophisticated anti-aircraft weaponry. Someone made a lot of money out of that. Many governments seem happy to sell arms and to land major defence contracts even with unstable or undemocratic regimes. In front of a parliamentary committee in the United Kingdom we have seen the Foreign Secretary, William Hague, finding it difficult to justify selling anti-riot equipment and tear-gas to autocratic regimes. Perhaps there should be an enquiry into what type of arms can be sold to certain undemocratic regimes. Yet, it is clear that it is impossible to monitor where arms end up even if there were more stringent sales contracts as there are too many who are willing to act as middlemen for dubious regimes.
So, what about catastrophes? States will always be wary of undue interference in their internal affairs. In the aftermath of the recent earthquake and tsunami in Japan, it was emphasised by many that the first responsibility to look after the Japanese people lies with the Japanese government. Obviously, Japan, as a democracy will be very grateful for help received from all over the world. Burma, on the other hand, refused help when confronted with such a situation. The attitude of that government amounted to: ‘This is our country, let them die’. So, if, as in Burma, a government does not want to help its own citizens at the time of a natural disaster, nor accept international aid, it is questionable what the international community can do to intervene. The military junta prohibited foreign aid during the aftermath of Cyclone Nargis in 2008. Such an attitude thwarted efforts to help victims of a natural disaster as the territorial state relied on the principle of non-intervention. In such a situation there would seem to be justification for applying the R2P doctrine. We require a spectrum of methods and skills, depending on the country in which we might want to act, for protection of people facing disasters.
The Security Council does now use R2P doctrine both for massive violations of human rights on the scale of genocide or crimes against humanity, as well as for natural disasters. But so far the Security Council has been reluctant to take action if a national government is passive in the case of natural disasters. The rule of thumb is that unless international peace and security is endangered, the Security Council will not authorise intervention for any reason whatsoever.
A problem with international disasters, whether man-made or natural, is not only the problem concerning hesitation to allow any R2P but also a deplorable lack of co-ordination. All sorts of non-governmental organizations seek to fly in, from the old and usually very efficient International Red Cross to Oxfam, Caritas and the MSF, and all manner of aid agencies – without any umbrella body under which their efforts might be co-ordinated, which results in much overlapping effort. If we are to endorse a R2P doctrine, a concrete Right to Protect in such situations, we should probably determine who does what so that the country which has suffered a disaster can enjoy co-ordinated efforts of assistance with specific reassurance to the territorial state that no illegitimate activities will ensue. There must be assurances that the country where a disaster has occurred does not have its internal privileged sphere opened up to activities like pillaging, theft or espionage.
There is a responsibility on governments to protect their own citizens, and to ensure they do not suffer from massive violations of their human rights (this responsibility is enhanced, and the guilt aggravated, if the government itself is the cause of such violations). Governments also have a duty to shield persons in their territory from the effects of natural disasters. Then again, if a government cannot cope, it has the responsibility of calling in others from outside to help its people. There is also, and thirdly, a responsibility to protect citizens when they are elsewhere than in their home country. Such outreaching could be employed to protect a state’s citizens in another state or even, in times of excesses and serious violations of basic human rights, to assist the citizens of another state.
It has been suggested that ‘R2P’ is a new way of enforcing international law. Those taking part in a R2P operation are not fighting a war, nor are they peace-keeping. It is important, however, that we should not be led astray by a change of terminology. Throughout history intervention has been very a dangerous mechanism, and often there has been pretence of acting for the good of the people when in fact the effort has been a cloak for illegal activities as, for example, in the early cases I mentioned earlier.
We should seek clarification and systematic analysis of who can do what, who decides what, who will agree to what under R2P doctrine. Words, terms and concepts can be defined in many ways. The concepts of democracy and sovereignty were clearly defined in one way in Soviet Russia, but in terms very different from how they were understood in the Western world. It was claimed by the USSR that its citizens enjoyed democracy and that Western world was not democratic. Even after the fall of communism Russia sometimes has a slightly different view of sovereign rights from other states and it is often joined in this attitude by China.
The wide spectrum of views also shows that the doctrine of R2P nowadays has a specific positive meaning to some states that wish to assist and help, and in some political systems, whereas in others it is seen as a dangerous notion. So, it is all a bit like the definition of the spade in Oscar Wilde’s Importance of Being Earnest, when Lady Bracknell said she was pleased never to have seen a spade! In the same sense, it is highly unclear what R2P actually means and even more precarious to establish what legal rights flow from this concept.
Sir Robert Jennings wrote:
when the state commits cruelties against and persecution of its own nationals in such a way as to deny their fundamental rights, and to shock the conscience of mankind the matter ceases to be of sole concern to that state and even intervention in the interest of humanity might be legally permissible.
I alert you to the subjunctive, or conditional, word ‘might’ here. It might be permissible. One has to assess legality on a case-by-case basis and not say, as some have said in the case of the NATO bombing of Kosovo to stop Serbs killing ethnic Albanians, that it was ‘illegal but legitimate’. To most of us that is a contradiction in terms and, as someone said, it would probably just lead to a second ethnic cleansing because of the lives lost in that operation. But which authority will assess the in casu determination of lawful action under R2P doctrine? If such authorisation is delayed, on the other hand, many lives will be lost while there is protracted discussion on the international level as to what action should be taken
The UN Security Council expressly referred to R2P doctrine when it authorised the no-fly zone to make government forces stop bombing civilians in Libya. But the Bishop of Tripoli recently begged those who intervened in Libya under R2P doctrine to ‘stop the humanitarian massacre’ – as many innocent people also died in operations to enforce the no-fly zone.
The R2P doctrine is still a vague and dangerous notion that may be open to abuse. We must, therefore, encourage statesmen, politicians, lawyers and philosophers, to define the R2P doctrine in clear, concise, and very limited formulae. Only such specific terms will enable us to obtain a fine balance between charitable assistance, respect for innocent lives, and the all-important notion of the sovereignty of a state.