R2P and the democratization of the UN - Part II:
Importance of focusing on people’s needs
Text of address by Justice Minister and
President of the Asian-African Legal Consultative Organization Rauff
Hakeem titled ‘Responsibility to Protect: Asian-African Perspectives’
held at Indian Council of World Affairs (ICWA) on January 24
It acknowledged that the traditional language of the
‘sovereignty-intervention debate’ in terms of a ‘right of humanitarian
intervention’ or ‘right to intervene’ is unhelpful, primarily for the
reason that it focuses attention on the claims, rights and prerogatives
of the potential intervening states, much more than on the urgent needs
of potential beneficiaries of such action, namely people whose basic
rights are at stake.
The principle of R2P rests on three equally important pillars. They
are that (1) the primary responsibility of states to protect their own
populations from the core crimes of genocide, war crimes, ethnic
cleansing, and crimes against humanity, as well as from incitement to
perpetrate such crimes; (2) The responsibility of the international
community to assist a state to fulfill its R2P; and (3) the
international community's responsibility to take timely and decisive
action, in accordance with the UN Charter, in cases where the state has
manifestly failed to protect its population from one or more of the four
crimes.
Humanitarian intervention
The point of departure of R2P from the earlier concept of
humanitarian intervention was that it stressed on the primary
responsibility of the state to protect its own population. R2P advances
the idea that the international community should assist states in this
endeavour. It has placed armed intervention within a broader range of
measures that the international community might take to respond to
genocide and mass atrocities.
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Justice
Minister Rauff Hakeem |
In 2008, the present Secretary-General of the United Nations Ban
ki-Moon challenged the UN membership to translate its 2005 commitment
from ‘words to deeds’. At the same time, the Secretary General carefully
defined a scope of application of the R2P concept as reflected in the
2005 consensus of the Heads of the State or Governments. The Secretary
General stated:
“The responsibility to protect applies, until member states decide
otherwise, only to the four specific crimes and violations: genocide,
war crimes, ethnic cleansing and crimes against humanity. To try to
extend it to cover other calamities, such as HIV/AIDS, climate change or
the response to natural disasters, would undermine the 2005 consensus
and stretch the concept beyond recognition or operational utility”.
This statement indeed manifests an increasing sense of caution in
applying a concept intended to apply to cases which ‘shock the
conscience of mankind’ somewhat expansively to situations which were
never envisaged when developing the concept of R2P.
Humanitarian perspective
In the treatment of the topic 'Protection of Victims' in the event of
Disasters the International Law Commission had occasion to take a
considered view on the application of R2P to the topic. In his
preliminary report the Special Rapporteur (A/CN.4/598) had taken up the
position that the “appropriateness of expanding the concept of
responsibility to protect and its relevance to the present topic both
require careful consideration. Even if the responsibility to protect
were to be recognized in the context of protection and assistance to
persons in the event of disasters, its implications would be unclear”.
The Commission, subsequently at the 61st Session in 2009, engaged in a
comprehensive debate, in which sharply divergent views emerged. Some
members questioned the applicability of the R2P concept to the topic of
Protection of Victims of Disasters, as the legal parameters of this
concept were yet unclear and consequently could have a destabilizing
effect.
At the 63rd Session in 2011 the ILC endorsed the position taken up in
the Secretary General's Report and confirmed the inapplicability of R2P
to the topic of 'Protection of Victims of Disasters'.
These developments reflect a growing concern on the part of the
international community of states as well as within international
organizations of the potential for abuse of a concept which may
originally have been developed from a humanitarian perspective.
The disagreements are therefore on the actual scope of application of
the concept, much as they did before 2005. Critics argue either that the
R2P is a dangerous concept with imperialist designs that undermine the
principle of national sovereignty and political autonomy of the
relatively weak nations or quite the reverse, that it is a symbolic
gesture and pretense that promises meagre protection to vulnerable
populations.
The debates about implementing R2P through the UN, did not receive a
very positive response at the initial stage.
This was largely due to the persistent concerns about R2P's potential
to legitimize interference in the domestic affairs of states and other
fears of abuse. Given the composition of the Security Council, there
were legitimate concerns as to who is to judge impartially, whether a
particular situation warranted the invoking of R2P. Therefore, number of
states wanted to prevent the further pursuit of this concept.
Despite the commitment to R2P at the World Summit, it took six months
of intense debate for the Security Council to unanimously adopt
Resolution 1674 (2006), dealing with ‘Protection of Civilians in Armed
Conflict’, wherein in the operative paragraph 4, the Security Council
‘Reaffirms the provisions of paragraphs 138 and 139 of the 2005 World
Summit Outcome Document regarding the responsibility to protect
populations from genocide, war crimes, ethnic cleansing and crimes
against humanity’.
The resolution adopted by the Security Council on the situations in
Darfur (Resolution 1706, 2007) and Somalia (Resolution 1814, 2008)
referred to protection of civilians without referring to R2P. This
indicates that initially the Security Council was willing to use R2P in
ongoing conflicts; however since then it seems that its stance has
changed to referring to R2P only in thematic resolutions, maybe because
it is not appropriate to use the concept before the General Assembly has
considered the matter.
Some other UN bodies also were not in favour of using the R2P concept
in ongoing situations of armed conflict. For example, when the UN Human
Rights Council's High-Level Mission on Darfur reported in 2007 that the
government of Sudan was failing in its responsibility to protect
Darfuris, the Arab Group, the Asia Group, and the Organization of the
Islamic Conference all questioned the report and tried to prevent debate
on its findings.
Systematic attacks
More recently, the Security Council Resolution 1970 adopted under
Chapter VII of the Charter pointed to the widespread and systematic
attacks against civilian population which may amount to crimes against
humanity and reminded the Libyan authorities of their responsibility to
protect the population. Thus for the first time in the UN Security
Council an explicit reference was made to the concept of responsibility
to protect (R2P) and its proponents regard this as a triumph for R2P as
an emerging norm.
Nevertheless Security Council Resolution 1973 which followed SCR 1970
gave rise to a divisive debate in the Security Council with five
countries (Brazil, China, Germany, India and Russia) abstaining. The
abstaining countries expressed a range of concerns about how and by whom
the resolution is going to be implemented. Concerns were also expressed
on what limits would be placed on the military intervention and about
unintended consequences including possible large loss of human lives and
expansion of hostilities throughout the region.
Here, I would also like to quote from the Statement made by
Ambassador Maged A Abdelaziz, The Permanent Representative of the Arab
Republic of Egypt to the United Nations, on behalf of the Non-Aligned
Movement (2009),
“Many elements in the Secretary-General's report received support,
based on historical national or regional experiences, as well as the
conviction that no country or region is immune from risks. In the
meantime, mixed feelings and thoughts on implementing R2P still persist.
There are concerns about the possible abuse of R2P by expanding its
application to situations that fall beyond the four areas defined in the
2005 World Summit Document, misusing it to legitimize unilateral
coercive measures or intervention in the internal affairs of states.
There are also pertinent questions about the role to be played by each
of the principal organs within their respective institutional mandates
and responsibilities in this regard. These issues will have to be
thoroughly addressed in any discussion on implementing R2P. We should
work to reconcile all the divergent concerns and viewpoints through an
honest, comprehensive, all-inclusive and transparent dialogue. The
General Assembly is indeed the right venue for such a dialogue.”
The challenge, the General Assembly agreed, was to implement R2P, not
renegotiate it. The debate also highlighted some concerns mainly about
four issues in particular:
(1) Modalities and need for an early warning capacity. Several member
states were of the view that information gathering and assessment by the
UN violates sovereignty and can easily be politicized.
(2) The respective roles of the Security Council and the General
Assembly, including the reform of the Security Council. Several
opponents of R2P maintained that expanding the Council's membership
should be a prerequisite to the implementation of the R2P and that the
General Assembly should oversee the work of the Council in this area.
There appears to be increasing apprehension the potential for abuse of
R2P for political purposes would provide legitimacy for intervention in
the internal affairs of states which would otherwise be regarded as
clear violations of the UN Charter and general international law having
a destabilizing effect on international peace and security.
(3) The potential for R2P to legitimize coercive interference and
lack of trigger for armed intervention and
(4) Potential for R2P to draw resources away from other UN programmes
and without adding value were also raised.
What these concerns collectively convey is the increasing
apprehension on the part of the States of the potential for abuse of the
R2P concept for political purposes, providing legitimacy for
intervention in the internal affairs of states, which would otherwise be
regarded as clear violations of the UN Charter and general international
law.
In order to allay these concerns a greater degree of democratisation
of the UN system as a whole, in particular, the Security Council, its
composition and working methods, to ensure wider representation of the
international community and greater transparency are required. Further,
a greater pro active role for the General Assembly to act as a buffer
against possible political abuse becomes imperative, if the R2P concept
is to receive the general acceptance of the international community as a
whole, in particular Asia Africa.
Challenges to R2P
As many of the Asian and African States have experienced colonial
rule and the imposition of coercive force of colonial governance, most
of them hold the principle of sovereignty and non-intervention
sacrosanct. These concerns are far more powerful than R2P advocates care
to admit.
Implementing the responsibility to protect is practically difficult.
More often than not, R2P operations of all kinds involve significant
compromises. Resources are never enough, mandates are contested,
distances are great, alliances are brittle and the quality and
commitment of intervening organizations are uneven. Therefore, this
leaves us with many unanswered questions. Is it wise to push the
democracy agenda as part of preventive efforts or will such policies
accelerate divisions? Is it wise to use international force and risk a
longer internationalized war in a hostile region? Is it wise to repair
and rebuild a post-war state to a degree of sophistication that its
post-war economy cannot sustain? All these challenges test the
assumptions that are at the heart of the R2P concept that has been
formulated by people who are deeply embedded in the kind of liberal
democracy practiced in major affluent countries where the enthralled
ideologues even claim that their liberal democracy has signaled the end
of history.
Much of the resistance to R2P does appear to come from the idea that
it will legalise what used to be illegal uses of force. This fear may
not be entirely justified. Even without reference to R2P interventions
can take place with the licence of the Security Council, acting under
Chapter VII of the Charter. In other words, the use of force can be made
procedurally legal on the basis of “threats to international peace and
security”, as has been done in many recent cases.
The question often posed is: Is it ever justified to use force
against another state? Often this is justified on the basis of
preventing mass atrocities, and as a last resort. But who decides when
force is to be used? Who ensures that such use is proportionate? In
other words, who guards the guardians?
The question concerning the use of force is an emotive one. Not just
R2P, but also International Human Rights Law, and International Criminal
Law are in many ways compromised by global geopolitics. For instance
when the Iraq was invaded under false pretexts - an action that the then
Secretary General to the UN, Kofi Anan, described as ‘illegal’ - is
clearly the sort of action that should be resisted (not encouraged)
through international norms and mechanisms. The fear and rejection of
R2P by many countries is linked, undoubtedly, to the concern that it
could lead to more rather than less of such unjust unilateral actions.
Global institutions
In recent years, it has become clear that states remain reluctant to
invoke the concept of R2P. Some states support R2P it seems in part
because it remains somewhat vague. There still exists a large degree of
theoretical ambiguity about what R2P means and when it is applicable and
who determines when it should be invoked and when it is applicable. More
is needed to clarify what it is, when it is applicable, and when and how
it ought to occur in practice. In the absence of benchmarks and
standards that can be applied each time a situation arises where R2P may
be applicable, debate about its applicability becomes acute and
unavoidable.
In this connection I wish to reiterate the need for the R2P
initiative to go hand in hand with greater democratization of the UN
system in particular, the Security Council. The division between the
global North and South continue to remain major obstacles to the more
successful use of the concept to prevent and deal with conflict.
The shortcomings of global governance are well known. They include
most worryingly the absence of power to implement decisions at the level
of global institutions and therefore the reliance on states to implement
the Security Council mandates, and the lack of representation and the
inequality of voting power in the Security Council. Add to that is the
deficiencies we have in the global governance system which, by the way
that history has played out, undermined the confidence of the global
South in the even-handed and just application of the R2P concept.
Since the adoption of the R2P concept in 2005 world summit, it has
been given varying interpretations and definitions. This process has
gathered momentum since the intervention in Libya is sharpening the
rhetoric of the skeptics as well as its proponents. The Libyan
experience was an eye opener. International support and approval at the
initial stages evaporated with the devastation of the bombing and human
suffering. The epic is still in the stage of writing and it is too early
to claim mission accomplished. Perhaps, we are still too close to
events.
I would like to venture briefly into a territory that is fraught with
some controversy. That is to express the essence of the positives and
the negatives of R2P as seen from an Asian African perspective. To do
that I rely on two eminent men who voiced their reservations and hopes
on the concept of responsibility to protect. The views I present are
those expressed by them in an interactive dialogue on R2P that took
place at the United Nations on July 21, 2009 wherein the UN Secretary
General emphasized that sovereignty and responsibility are mutually
enforcing principles. I do not think the Asian African perspective to be
in divergence with that position.
Let us now see what others thought at the same debate. Professor Jean
Bricmont of Belgium told the General Assembly Interactive thematic
Dialogue “R2P is an ambiguous doctrine. On the one hand, it is being
sold to the United Nations as something essentially different from the
“right of humanitarian intervention”, a notion that was developed in the
West at the end of the 1970's, after the collapse of the colonial
empires and the defeat of the United States in Indochina. This ideology
has been relying on the human tragedies of the newly decolonized
countries to lend a moral justification to the failed policies of
intervention and control by the Western powers over the rest of the
World.”
Professor Noam Chomsky has this to add. “......The maxims that
largely guide international affairs are not graven in stone, and, in
fact, have become considerably less harsh over the years as a result of
the civilizing effect of popular movements. For that continuing and
essential project, R2P can be a valuable tool, much as the Universal
Declaration of Human Rights has been.”
We in Asia and Africa know that nothing in the international
discourse is graven in stone. However, before R2P can command a broad
international consensus, the legitimate concern that has been raised
particularly by the developing countries of Asia and Africa, of the
potential for its political abuse, must be unambiguously addressed.
Concluded
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