R2P and the democratization of the UN

R2P is an issue that raises serious reservations and doubts in the minds of policy makers of the less affluent nations who are all members of the Afro Asian group of countries. The Asian African perspective on R2P has therefore to be one of cautious deliberation that brings to my mind the oft repeated and somewhat aphorism that the road to hell is paved with good intentions. Rather I would opt to agree with either Milton Friedman who famously said “concentrated power is not rendered harmless by the good intentions of those who create it,” or with Bernard Shaw who was more realistic of the limits of human endeavourer when he said “Hell is paved with good intentions and bad ones. All men mean well.”

The two aphorisms I cited, more or less sums up our dilemma in reconciling the need to uphold international morality and the sanctity of state sovereignty that is pivotal to the world order as we understand it today. Before I discuss the concept of the R2P I would like to remind this audience of my own inability to be absolutely precise in differentiating between subjective assessment and objective assessment or absolute truth and virtual truth. I suppose that is why judges too are considered fallible and sometimes judgments are reversed.

National sovereignty

The R2P concept as is pointed out by some of its eminent advocates is a concept that has come a long way from the time of the adoption of the UN Charter. The founder nations of the United Nations wanted to avoid war between states and amongst states. It was essentially nation state centric in both substance and form.

The language of Article 2(7): is explicit in declaring that sovereignty of member states is inviolate and stipulates 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.” This is basically the chasm between those fierce advocates of “the right to intervene in order to protect” and those who hold the inviolability of national sovereignty. Here it must be pointed out that the concept of state sovereignty is violated totally when international intervention becomes coercive with or without boots on ground.

It is also useful to remind ourselves that we are discussing the subject of intervention in the backdrop of a unilateral intervention by a member of the Security Council, which the ex Secretary General of the United Nations Kofi Annan declared as a violation of international law. Ironically it was the same Mr. Annan who in 2000 declared that I quote “If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica-to gross and systematic violations of human rights?”

Secretary General Annan in 2000 called out in anguish for international help. The same Mr. Annan in 2003 made a call in despair. Between anguish and despair our choice is very limited I think.

So let us agree that it is indeed a moral dilemma that has to be resolved by the community of nations. We need to do so in a complex world where morality is also a complex business. Some nations have the economic and military power that can enforce morality.

Some others who do not have the military power accelerate their efforts to acquire them. I will now summarize the evolution of R2P. It started with the collective consensus of “never again.”

Human rights

A decade ago the international response to mass-atrocities or crimes against humanity such as genocide, ethnic cleansing, and other large-scale atrocities that violated the conscience of mankind was zone of ambiguity wherein there was no clear consensus in the community of nations.

Despite all pious declarations of “never again” rhetoric and frequent conventions on human rights, adopted since the end of the Second World War, there was no discernible international remedial action to prevent man committing atrocities against man. Human catastrophe after catastrophe from Cambodia in the 1970s to Rwanda and the Balkans in the 1990s left perplexing questions unanswered.

The concept of ‘responsibility to protect’ or as commonly known R2P has become a frequently raised issue in international diplomacy. It has been given voice in crises from the Congo to Kenya and most notably, in the struggle in the last year in Libya.

Let us see how this concept of R2P has traversed this distance from a sharply divergent ideological divide to the present, towards forging a collective response to mass atrocities at least on the basic principles.

Genocide in Rwanda

The term Responsibility to Protect was first introduced in 2001, in response to the genocide in Rwanda. It was when Kofi Annan, the then-Secretary General of the United Nations in his report to the General Assembly in 2000, challenged the international community to respond to the human catastrophe in Rwanda. He implored the international community to reach a consensus on when and how humanitarian interventions should be made in a sovereign state.

The theoretical foundations of the responsibility to protect as a guiding principle for the international community of states was sought to be built upon the rationale that (a) the obligation is inherent in the concept of sovereignty and that (b) it amounted to a specific legal obligation under human rights law and international humanitarian law as reflected in Covenants, Treaties and Declarations as well as under national law.

The Report of the International Commission on Intervention and State Sovereignty (ICISS), constituted by Canada, consequent to the Kofi Anan appeal argued that the doctrine of state sovereignty does not imply the exercise of unlimited power by a state vis-a-vis its own people and underlined that sovereignty implies a dual responsibility. Externally it required that states respect the sovereignty of other states consistent with the doctrine of sovereign equality, and internally, it required that states respect the human dignity and the basic human rights of all people within the territory of that state. The Report underlined the fact that this contemporary understanding of the meaning of sovereignty is of central importance in its approach to the question of intervention for humanitarian purposes and in particular, in the development of the concept of responsibility to protect.

In its attempt to legally and morally justify a ‘right to a humanitarian intervention’ which ex facie is contrary to the principle of non intervention enshrined in the UN Charter and well established in customary international law, the Commission sought to engage in an exercise which it referred to as ‘shifting the terms of the debate’.

To be continued