The United Nations and its Responsibility to Protect

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    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
    ‘terrorism’.
    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
    normative ground.
    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
    Legality
    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.