CCTS
Review 31

Giving meaning to ‘Never Again’: the International Responsibility to Protect

by Alan Pleydell, Quaker Peace and Social Witness

Following the UN’s institutional shame over its failure to avert the massacres in Rwanda in 1994, and Srebrenica in 1995, there has been some concerted international effort to rewrite the rules of engagement in such situations. Specifically the focus has been on severe abuses of power within state borders, and finding ways to modify the legal and political immunity of governments from international interference on the grounds of sovereign independence. How is the ‘international community’ to get more skilled at involvement in state-internal conflicts which are close to the potential for massacre, or have already got there, and doing so in ways which are genuinely helpful rather than engaging in forms of intervention, particularly invasions, which carry the highest danger of making everything a great deal worse?  This subject now goes under the general rubric of the International Responsibility to Protect – or R2P for short.

The fundamental principles of R2P were first spelt out in the Canadian government sponsored Report of the International Commission on Intervention and State Sovereignty of September 2001. This document was overshadowed at the time by the events of 9/11, but the issues it raised are re-emerging now as central to the maintenance of international order. They were reiterated and taken up again by the High-Level Panel on Threats, Challenges and Change convened by Kofi Annan which reported in December 2004, again in Kofi Annan’s own report of March 2005 on UN reform, In Larger Freedom, and finally in the outcome document of the September 2005 UN World Summit – the most general and authoritative pronouncement. 
Some of the main elements, the ‘precautionary principles’, of the emerging doctrine are a reworking in modern conditions of just war principles.  They spell out, in terms of the legal norms that are already present in the UN Charter, minimum conditions which must be satisfied before any kind of last resort military intervention may be contemplated. [The precautionary principles are reproduced earlier in this Review, as Appendix A of the Civil Society Group of the United Kingdom Statement on Responsibility to Protect.]

In one sense the Summit Declaration represents a landmark, since it is the first time that R2P has been simultaneously and universally endorsed by the UN member states. It is a great achievement but where does it leave us in practical terms?
The precautionary principles are about setting stringent conditions for the collective authorisation of external military intervention against the will of a recalcitrant government to stop or avert a huge loss of life within the territory under its jurisdiction. The particular achievement of the summit document is to link these conditions to an explicit responsibility incumbent on all governments to protect their own populations.

However, a major problem with ‘last resort thinking’, as with ‘worst-case scenario thinking’, is that it carries the risk of precipitating us towards actualising the last resort option even in conditions short of the worst, and of numbing the potential for thinking through and practising alternatives. 

Yet the primary intent of R2P is avowedly preventive – to help bring into being a recognized international norm and practice of protection which allows preventive and ameliorative influence short of coercive measures to be brought to bear in critical situations.

The key question then becomes how to give real credibility to the declaratory intention to develop a form of preventative diplomacy that would mean that in practice the last resort was decreasingly resorted to. Last resort principles are, in my view, a vital part of the mix. But the central point is to keep the threat of coercion in the background in order to develop and maintain space for preventive and remedial intervention which can make itself felt and be increasingly relied on. Above all, that means developing a culture of consent and a willingness on the part of governments to engage – both those inside and those outside of the area where there is an imminent threat of abuse occurring, or where it is already taking place.

I think that a helpful analogy here is the development of child protection law over the last 50 years or so in moderately democratic countries. The situation used to be, and still is in practice in many places, that cases of domestic violence, against children as well as women, could not be touched by the law because of a legal and social convention that what went on behind the closed doors of the household was essentially a private matter. This compares directly with our inherited international doctrine of the sovereign independence of states. If in domestic practice we are managing to do things at least a little better now, how has this been achieved? The family was also conceived of as a legally inviolable sphere of collective privacy. It was widely feared by some that to breach its hard boundaries was to call into question the primacy of the family as a valued and natural unit of social organisation. Yet what has occurred step by step within family law, by judicial interpretation and the expansion of case law, is the gradual supplanting of the idea of the sovereign inviolability of the family (or the rights of the invariably male head of household within that structure) with the primacy of the rights and interests of the child.

The main thrust of the effort behind this change of understanding and convention has been to maintain and develop the primacy of the family as the key unit of social organisation, by consent and cultural development, from a sphere of forceful relationships to one of care and nurture. So, ultimately, with the local and regional self-organisation of human populations – ideally democratic states. The responsibility of governments to protect their citizens is directly analogous to the responsibility of parents to feed, nurture, protect and develop their children. The primary object of changing the law is not to criminalise more parents, throw them into jail and their children into institutional ‘care’, but to create and expand the space for the acceptance of help – from friends, social workers, trainers and so on – in cases where the balance within the family has gone seriously adrift and violence and threat rule.  This objective rests on a root belief and hope in the human potential and desire – even if sometimes hidden – for doing things better, and in an easier way, however difficult that may be at the outset.

The paradox is that the earlier and less official the intervention – and the more it is understood as fundamentally friendly – the more likely it is to be received without protest or forceful resistance, even if it takes place within a socially maintained expectation of compliance. Ultimately, it is a balancing act. The legal change, if skilfully handled, creates the space for a more relaxed stance on either side and results in a greater willingness on the part of those who are the subject of intervention to accept external interest and good offices. The family gets to stay together; the country avoids invasion.

Clearly if resort to the ultimate sanction – splitting the family, or invading a country – were to become commonplace, this would undermine the whole basis of social and political life. A world of ever more numerous foster care homes or of post-invasion international protectorates is simply unsustainable.  My belief is that on balance the more there is a culture and developed practice of allowed good offices, the less likely it is that situations will deteriorate to the point where military intervention is required to prevent massacre.  That does not rule out the possibility that a well resourced, fully authorised and shared international military intervention might in some situations save many lives without leading to worse consequences later on.  However, the precautionary principles would have to be applied with total and honest rigour.

Internationally, I don’t think there is yet any very clear forward strategy for R2P. One outcome of the summit has been the appointment in May of a new UN Advisory Committee on Genocide Prevention. The seven-member Committee will provide guidance and support to the work of the Secretary-General’s Special Adviser on the Prevention of Genocide. I hope that this institution will develop along the lines of the OSCE work on National Minorities carried out so effectively by Max van der Stoel as High Commissioner in the 1990s – friendly good offices with the coercive potential kept well in the background, but ultimately backed by awareness that non-cooperation could lead to the imposition of sanctions of various kinds.

Our job, and the job of civil society and NGOs, is to help tip the balance towards a general acceptance of the proposition that intervention in some form is legitimate when governments fail in their minimum obligations to protect their citizens, and that the acceptance of advice and good offices is likely to result in a decreasing reliance on the last resort of military intervention.

<< Previous Article

newsletter  |  ccts |  top