In a few months the UN will be sixty-seven years old. Fifty-one countries
joined in 1945. Today there are one hundred and ninety-three member
states. Upon entry each state must accept the UN Charter, together with
a network of binding covenants, conventions, and other international
agreements. UN Charter legislation was created with the aim of
‘maintaining global security’, ‘taking effective collective measures’ and
‘settling international disputes by peaceful means’. The Charter’s call
for ‘sovereign equality’ has been of fundamental importance to the large
number of colonies and territories which gained independence during the
last half of the twentieth century.
Historically most countries have taken it for granted that sovereignty
constitutes the right to determine the course of political action within
national boundaries without outside interference. However, many
governments that face crises within their countries or are in conflict with
other nations have begun to fear that their independence might be in danger.
They have demanded vociferously that their sovereignty be respected. One
can find examples for this in all parts of the world: in Africa (Eritrea and
Somalia), in Asia (West Iran and Pakistan), in Latin America (Peru and
Venezuela) and in Europe (Macedonia and Ukraine), to name just a few.
In 2005 the United Nations adopted the ‘Responsibility to Protect’
initiative as a mechanism to prevent or address the incidence of the ‘mass
atrocity crimes’ of genocide, war crimes, crimes against humanity and
ethnic cleansing. The initiative is founded on the concept of sovereignty
as a responsibility rather than a right. However, the evolving debate in
the UN Security Council still assumes that national sovereignty means
governments have the first right of decision making within their own
borders. Many governments, particularly those with complex ethnic
structures, insist that this should remain so. This is pertinent in a world
where warfare between states has given way to internecine conflicts.
The argument follows that the UN’s Responsibility to Protect, refers to
‘international’ law and therefore is only concerned with international
security. To the governments of many countries this implies that national
conflicts remain entirely internal affairs. Nevertheless, as intra-national
conflicts increase and inter-state confrontations decrease, the louder the
calls have become for new approaches in dealing with concepts such as
‘sovereignty’ and ‘responsibility to protect’.
This is, without question, a positive development. The definition of
sovereignty and national responsibility, accepted during the years of
the post-war independence movements, began to be considered as
too restrictive in view of the emergence of ‘failed states’. In the late
twentieth century the international community began to think about its
broader responsibilities for the welfare of fellow nations. In the early
1990s demands for change intensified when failed states began to pose
serious dangers for international security. Many governments felt that this
justified an international right to intervene in order to end the condition
of state failure. References were made to ‘negative sovereignty’ in cases
where a failed state was no longer in a position to fulfil its basic duties of
governance. Somalia was cited as a country in which the UN Security
Council felt it had a duty to intervene.
It is important to emphasise that the UN Security Council took this position
based on Article 41 of the UN Charter, which provides for intervention
across borders, without resorting to the use of military force. According
to UN Secretary General Boutros Boutros Ghali and his successor Kofi
Annan, the notion of Responsibility to Protect should be carried out
without military means.
Beginning of a new world order
By the end of the twentieth century the number of UN member states
had increased significantly. The global political landscape had become
much more complex. Non-state actors using legal and illegal means
became involved in national politics with increasing frequency. The
international response was immediate, particularly in the United States.
Neo-conservative initiators of the so-called ‘Project for a New American
Century’ observed with suspicion these intra-state developments in various
parts of the world, as well as the growing influence of Russia and China in
international affairs and the emergence of new nuclear states such as India
and Pakistan. At the same time there were many governments who wanted
to engage in a constructive debate about how the international community
should respond to proliferating crises.
‘Failing states’ and ‘new wars’ became subjects that increasingly dominated
political discourse. As distrust among nations became stronger, a uniform
position on these developments was out of the question. When is a state
a ‘failing state’? What is new about the ‘new wars’? What is legitimate
resistance and what is criminal terrorism? Who has the responsibility to
protect ? The battle lines of the debate hardened as evidenced by the fact that
governments could not even come to an understanding of what constituted
The events of 11 September 2001, and the American response, have
intensified this debate considerably. International relations, not only
between the US and the Islamic world but globally, have been affected.
Responsibility to Protect has become an issue of prime significance.
Following the genocides in Cambodia, Rwanda and Srebrenica measures
had to be undertaken to prevent a repeat of these atrocious crimes, even
if this meant using military force. International concern was no longer
limited to the responsibility to protect populations living in failed states
but included also those states in which fully functioning governments
were led by brutal dictators. This constituted a considerably expanded
remit for the UN Security Council.
National sovereignty and international protection
For Kofi Annan, the UN Secretary General during those years, the lesson
of Rwanda was a trigger for the creation of a new international security
architecture. Thus, he aimed at both a timely definition of the concept of
collective security and a broader interpretation of Chapter VII, Article 51
of the UN Charter.
It should be recalled that in the first years after the founding of the United
Nations the focus was on the protection of the state. By the end of the
twentieth century, protecting people wherever they lived had become
central. In this regard the United Nations and individual member states had
already done important preliminary work. The definition of human rights
had been clarified, new international covenants were adopted to protect
people and, in the framework of international cooperation, governance
programmes had been introduced.
In the debate on sovereignty, internal conflicts and the protection of human
rights, a major initiative was instigated by the Canadian government in
2001. An international Commission on Responsibility to Protect was
formed. The Commission presented its report in December of that year.
Important and nuanced ideas that were to have pivotal influence for the
further debate on this issue were articulated. The Commission insisted on
four key points: that state sovereignty included government responsibility;
government responsibility involved both an external and an internal
responsibility; external responsibility included respect for the sovereignty
of other countries; and internal responsibility meant that the dignity and
fundamental rights of all segments of the population must be safeguarded.
The report contains the basic premise that in international relations
human rights are more important than national sovereignty. Therefore,
the concept of Responsibility to Protect has pre-eminence over respect
for national borders. Here the Commission broke new conceptual and
While the UN General Assembly, the UN Security Council, Secretary
General Kofi Annan and his successor, Ban Ki-moon, have been
intensively involved in developing means to ensure human security since
2001, given the complex challenges, it was concluded that no country in
the world could deal with the task on its own. This is underlined by the
current global economic and financial crises, social and political change
– in the Arab world and beyond – and the dangers emanating from the
spread of weapons of mass destruction and organised crime. Kofi Annan
has warned that the UN Security Council ‘is not a stage on which national
interests are on display. It is the governing body of our evolving global
security system’. The debate has intensified, within the UN itself and
outside, and progress has indeed been made at the operational level.
Kofi Annan’s call for the international community to liberate itself from
the narrow definition of state sovereignty points to the fact that global
political change can also trigger innovative responses that are in the
interest of the international community and multilateralism. If the aim
is to create a community of states that in fact thinks ‘commonly’, then
collective security has to be an integral part of the international agenda.
The Responsibility to Protect is thus becoming both an intra- as well as an
inter-governmental obligation. This is now widely recognised. However,
the decisions of the UN General Assembly in 2005 are not yet binding
and the extended application of the Responsibility to Protect has so far not
been made an integral part of international law.
Application of Responsibility to Protect in Libya of Questionable
In 2012 the international community finds itself having accepted a new
commitment to protect humanity. Proposals have been made as to its
operation but international law has yet to be reformed, and the argument
that Chapters VI and VII of the UN Charter, particularly Article 51, are
sufficient to implement the intra-state collective responsibility has yet
to find worldwide acceptance. The UN’s position is that the question is
no longer ‘whether’ but ‘when’ and ‘how’ the international community
should apply the Responsibility to Protect. Distrust of such a collective
responsibility has remained and indeed been reinforced after the NATO
operations in Libya.
The gap between the rhetoric of nations on one side and the use of
power politics on the other has always been wide. Accordingly, the
consequences for human security have been disastrous. The crises
in recent decades in the Middle East, Central and South Asia and
in Europe clearly show that protecting civilian populations, despite
assertions to the contrary, has always been of secondary consideration.
The domestic and external interests of individual UN member states or
military alliances are invariably seen as more important. Iraq and Syria
are good examples, as is Libya, where the partisan, haphazard and
dishonest use of Responsibility to Protect illustrates why international
distrust of the concept has remained so strong.
The UN Security Council and its oversight mandate, ‘Operation Unified
Protector’, which comprised fewer than half of the twenty-eight NATO
countries, plus Qatar, Jordan and the United Arab Emirates, claimed to
protect the Libyan population but in fact aimed at regime change. Under
Resolution 1973, a UN arms embargo paralysed the Libyan army while the
opposition militias were armed with weapons. Government mercenaries
were forbidden but members of foreign special military forces (in civilian
clothes) from NATO and other countries infiltrated and took part on the
side of the opposition forces. NATO aircraft fought government forces and
supported the resistance. The government’s overseas bank accounts were
frozen, yet funds from abroad flowed into Libyan opposition coffers.
NATO sees this differently, and concludes that the United Nations
mandate was implemented in all respects. UN Secretary General Ban Kimoon
agrees with this assessment. Such misrepresentations are disturbing
and give rise to serious concerns. By authorising member states ‘to take
all necessary measures’ in the Libyan crisis, the UN Security Council
discharged itself from the responsibility to ensure that the conditions of
its resolution were met.
London, Paris and Washington, as well as NATO headquarters in Brussels,
speak of the ‘big success’ of the Responsibility to Protect mission in
Libya. If this refers to the removal of the Gaddafi government, then the
claim is justified. However, that was not the stated goal of Resolution 1973.
The Responsibility to Protect test in Libya has failed. To argue otherwise
is dishonest. In addition, it should be pointed out that, as in Iraq and
Afghanistan, it was only in the course of NATO’s military intervention that
participating governments realised that the ‘National Transitional Council
of Libya’, to whom they wanted to express their sense of responsibility to
protect, consisted of a heterogeneous assortment of groups. Many of these
had dubious backgrounds.
The failed application of Responsibility to Protect in Libya represents
a significant setback for the international protection debate. The UN
Security Council will be reluctant in the future to apply such measures.
The Syria debate of 31 January 2012 in the Security Council has made this
clear. The Russian Foreign Minister, Sergey Lavrov, speaking at the 48th
Munich Security Conference, pointed out that the Russian government
fully supported the Arab League initiative for a solution to the conflict
in Syria. He added that ‘regime change cannot be a matter for the UN
Security Council’. A few hours later, as the consultations continued
in the Security Council for a resolution text on the Syria conflict, the
President of the Council abruptly called for a vote – a surprise for Russia
and China. They vetoed the draft resolution.
It must be said that international acceptance of a concept such as the
Responsibility to Protect does not imply that this automatically translates
into a normative adjustment of the UN Charter. Distrust will only be
replaced by trust if ‘Responsibility to Protect’ is unequivocally linked to
‘accountability’. The important step of adding ‘Responsibility to Protect’
as a norm to the UN Charter is still to be taken. This will require time.
Confirmation of accountability in international policy making must be a
concurrent objective. Decisions taken by the UN Security Council have, in
Iraq and Libya, resulted in great suffering, while those who have taken these
decisions enjoy impunity. This state of affairs cannot endure.