Understanding the traditional concept of “Responsibility to Protect”: Challenges in Humanitarian Intervention with special emphasis on International Law

It is imperative for international communities to formally assess and analyse a “humanitarian crisis” before formulating a “humanitarian intervention” response, especially in the light of international legal norms established for crimes against humanity and genocides, as it can only be proven after deployment of war crimes investigator and peacekeeping military forces, to validate these crimes and violent actions. – Anant Mishra*

 

The focus of the article will be “principally” on three “challenges faced with respect to humanitarian intervention”: traditional challenges faced by international institutions with respect to humanitarian intervention while highlighting the “novel” concept of Responsibility to Protect (R2P); challenges faced by international institutions with respect to “legality” of humanitarian intervention especially when it is implemented at “regional and local levels”; the traditional challenge of “legitimacy” of the humanitarian intervention. The article will extensively focus on Responsibility to Protect doctrine while using its principles to assess the challenges faced during a humanitarian intervention, in the context of international law.

The focus of the article is to eliminate the challenges faced during humanitarian intervention with respect to international law by assessing and analysing various conflicts entangled with the international law | Image: Invisible Children

Introduction

International institutions particularly the United Nations, its agencies, military organizations such as the NATO, has been extensively criticised for their “over-aggressive” strategies of humanitarian intervention, by the academia. One principle reason behind their “acute criticism”, is their “aggressive strategic manoeuvres”, violating the traditional concepts of humanitarian intervention especially within the context of international law. To resolve this “contention”, new guidelines coupled with the fresh concept of “Responsibility to Protect” was introduced, in effort to prevent any future violation of International law.

The focus of the article is to eliminate the challenges faced during humanitarian intervention with respect to international law by assessing and analysing various conflicts entangled with the international law. The article further argues on the “element of morality” in accordance with the Responsibility to Protect during humanitarian intervention, however, international institutions, global military and non-government organizations, continues to face numerous challenges while “formulating a humanitarian response”, largely because of the conflict’s “non-traditionalism”, legality and unclear humanitarian intervention framework.

Challenges pertaining to the Responsibility to protect (R2P) doctrine along with legality and legitimacy of humanitarian intervention have extensively been discussed in numerous international forums, security conclaves, and legal conferences. The “novel” concept of Responsibility to Protect (R2P) doctrine was extensively discussed by policymakers and military experts during Syrian Civil war. In the light of numerous stakeholders and violent actors involved in the Syrian conflict, the discussion for immediate humanitarian intervention was largely limited to international laws while many policymakers then arguing on the need to establish international commissions on intervention and sovereignty.

The article not only discusses essential challenges faced during humanitarian intervention and Responsibility to Protect (R2P) independently but also focusses on resolving those challenges, while extensively arguing on their “legal and legitimate” status. This vivid approach will not only assist policymakers to understand the complex issues faced in implementing Responsibility to Protect doctrine but also during formulation of a humanitarian-centric policy.

Understanding conflict responses: Humanitarian Intervention and Responsibility to Protect

“Traditionally”, humanitarian intervention is “to use excessive force to achieve an objective”. The objective here is to “prevent mass violence, rape, mass killings, genocide and ethnic clashes” without taking a formal “request” from the host state witnessing (largely responsible for) this crisis and formulate multiple “initiatives” within the context of Responsibility to Protect (R2P), to prevent further escalation of the conflict.

The United Nations has asked Brazil to send troops to join its peace mission in the Central African Republic | Image: Mercopress

The principle challenge faced by policymakers while formulating a “response”, is that “intervention within its traditional form cannot solely be humanitarian” and when it is brought under the context of Responsibility to Protect, it instigates new discussions, within the frame of international law.

 

Humanitarian intervention

Military experts state that “humanitarian intervention involves a wide range of events”, especially providing medical aid to rehabilitation and reintegration of affected communities to establish a new central government. Although, within the context of international law, intervention is strictly military in nature, the involvement of an “external force into an independent state”. Thus, military experts limit the definition of humanitarian intervention to “using military force to prevent a crisis”.

However, the principle issue that is frequently argued by policymakers and military experts, is the nature of humanitarian intervention initiated by a nation or group of nations fulfilling the “humanitarian aspect” in the nation’s agendas or objective. It is undoubtedly true that nations priority would be “self-interest” and will never indulge in a “humanitarian crisis” solely for the sake of humanity.

Focussing on such humanitarian missions, the humanitarian intervention should be “limited and time-specific”, with actions limiting to preventing further escalation of conflict and human rights abuses. | Image: mz.co.za

When the United Nations Security Council (UNSC) authorises a humanitarian intervention, the objectives of the humanitarian intervention are clearly mentioned in the UNSC resolution whereas the UNSC takes complete responsibility for the intervention in the humanitarian crisis. However, in cases with intervention not initiated by the UNSC, the objectives of the intervention are principally understood on its “humanitarian elements”, which forces many experts to question or sight its legitimacy.

Focussing on such humanitarian missions, the humanitarian intervention should be “limited and time-specific”, with actions limiting to preventing further escalation of conflict and human rights abuses. Responsibility to Protect is established on the fact that, any humanitarian intervention should not be influenced by political ambitions, highlighting nation’s objective to “overthrow the responsible government and restore democratic values”. The objective of humanitarian intervention should not be specifically tasked to “remove the responsible government”. Although, in the light of humanitarian intervention in Syria, it became obvious that, any military intervention, even if it is specifically tasked to prevent further escalation of the conflict, will have certain factors “dipped in political ambitions” in an effort to overthrow the regime, as in the case of Libya, international community not only responded to an “escalated” crisis but also pressured responsible government to step down.

It is very difficult to separate “humanitarian centric objectives” of an intervening nation which is also the principle reason behind the support of many experts who argues that “nations should be free to respond even if it is aggressive with a principle task to overthrow the responsible government in an effort to prevent violent confrontation, since, an intervention solely coupled with “humanitarian principles” is utopian. Experts also argue on the fact that “legitimacy of humanitarian intervention remains intact when the intervention adequately addresses the humanitarian principles”, as according to the masses, the primary objective of the humanitarian intervention is to prevent human rights violations.

Responsibility to Protect (R2P)

The term Responsibility to Protect first appeared in the report issued by the International Commission on Intervention and State Sovereignty. During the UN World Summit in 2005, various heads of nations unanimously adopted the report while subsequently adopting it during UN Security Council sessions. The Responsibility to Protect doctrine is supported by three segments:

1) The state is principally responsible to protect its masses from genocides, crimes against humanity, ethnic-based violence mass execution of minorities;

2) It is the responsibility of international communities to assist the state in implementing Responsibility to protect; and

3) In accordance with the UN Charter, it is the responsibility of international communities to take extensive measures, especially when the state fails to prevent its masses from any one of the aforementioned crimes.

It will not be incorrect to state that, humanitarian intervention is one of the elements of Responsibility to Protect, however, it is broadly mentioned, coupled with the obligation of intervening in a crisis to prevent further escalation of human rights abuses while systematically rebuilding the nation during post-conflict scenarios. Policymakers must note that, if the humanitarian intervention is in accordance with the theory of “Just War”, then the intervention is said to “respect state-sovereignty”.

However, the authorisation to carry out Responsibility to Protect mission rests with the UN Security Council. This means that, the decisions to carry out Responsibility to Protect doctrine is tasked to an organization that was, before the introduction of the concept, responsible for the same, especially during the intervention of NATO in Kosovo, deployment of a small British units in Sierra Leone and a small unit of French troops in Congo. Since then, no humanitarian intervention has ever taken place without the authorisation of UN Security Council especially “when the governments threatened their own population”. Since then, the UN Security Council has only once used the Responsibility to Protect doctrine. The UNSC passed a resolution establishing a “no-fly zone” above Libya while specifically highlighting “the use of all available means” to prevent further escalation of the conflict.

The UNSC passed a resolution establishing a “no-fly zone” above Libya while specifically highlighting “the use of all available means” to prevent further escalation of the conflict. | Image: HRW

It is important to note that Responsibility to Protect is a “toothless law”, which primarily relies on “political notions” of international communities, but fails to mention international legal parameters. Military experts continue to argue on the fact that, if Responsibility to Protect is left on the “political” notions of individual states, nations would see this as an opportunity to “interfere in an already vulnerable state” ignoring the “responsibility to provide a safe and secure environment and preventing further human rights abuses”, diminishing the values of the doctrine to prevent crimes against humanity. This is clearly visible from recent examples of conflict in Syria and Libya, which were essentially received humanitarian intervention under the “Responsibility to Protect” doctrine but witnessed responses from individual nations different to each other.

Protecting human rights or intervening sovereign states?

The state’s sovereignty within the context of international law is a viable element which ensures “protection of the state” against an external aggression as mentioned in the UN Charter under the “prohibition to use of force”. Experts supporting humanitarian intervention provide “humanitarian centric arguments” against the non-interventionistic response from another state. This means that, when the state extensively abuses the rights of its population, it loses its “legitimacy” over the people and “credibility” in the eyes of domestic and international communities, while losing its “sovereign rights”, creating an environment for international communities to intervene. Hence, the state’s argument to “rights of sovereignty” is nullified, paving a way for international communities to intervene in an effort to prevent further “exposure of violence induced by the masses”, this is the “traditional” concept of Responsibility to Protect.

However, reinforcing the argument solely on the basis of “human rights violations” is not possible especially in the light of vulnerable circumstances, experts advocating for Responsibility to Protect further argue on the “need for states to intervene” by highlighting human rights abuses and massive state-sponsored crimes against humanity diminishing the “principle of sovereignty” while asking the state to “use force” under international legal norms. This also means that within the context of “traditional international law”, the argument of “nation’s sovereignty” can be dismissed in the light of “human rights abuse specifically carried out by the state”, under the doctrine of Responsibility to Protect.

Acting under “moral stance” or a legal obligation?

Policymakers must note that the question of legitimacy appears only when the traditional humanitarian intervention policy of the state is questioned, especially the operational mechanism of the intervention and the desired result. These factors play a vital role in identifying “legitimacy” of the intervention as the mission is executed. Furthermore, every step taken during the state’s humanitarian intervention is “carefully” evaluated.

To successfully address the “issues pertaining to unauthorised humanitarian intervention”, it is important for policymakers to first question the legitimacy of the state’s policy, as even authorised humanitarian intervention can lose its legitimacy at “operational level”. During the initiation of a mission, the question of legitimacy can be raised highlighting the “legality of the humanitarian crisis” and the action taken by the UN Security Council. During the formal closure, the question of legitimacy can be raised pertaining to “the objectives achieved by the humanitarian intervention along with the use of force”.

During the initiation of a mission, the question of legitimacy can be raised highlighting the “legality of the humanitarian crisis” and the action taken by the UN Security Council. | Image: Legal Today

In accordance with the Responsibility to Protect, independent nations are under obligation to respond towards a humanitarian crisis while according to some experts, they provide “probable” cause for a military intervention. During the Obama presidency, the White House specified “mass atrocities and state-induced violence against the populations” as the principle reason for Washington’s official intervention in a conflict. During Clinton presidency, this was also the official intervention policy of Washington which was repeatedly reiterated during American intervention in Kosovo. Although the American intervention in Kosovo received no formal authorization from the then UN Security Council, the principal debate policymakers continue to face is between “UN Security Council’s formal recognition, the moral high grounds and respecting the nation’s sovereignty”, while formulating the humanitarian intervention policy.

Moreover, the Charter of the United Nations has made it absolutely clear that “any use of force besides self-defence needs a prior authorisation from the UN Security Council”. Many experts argue on the need for a formal authorisation by international organizations, while some supporting “moral will to intervene in a humanitarian crisis” rather than seeking formal authorisation, while others weigh “formal authority as a symbol of legalising humanitarian intervention”. Thus, if the intervening state has “hidden agendas” then the arguments for “intervening in moral high grounds” violates every established international law and humanity centric assistance approaches.

It is imperative to conduct a thorough assessment of the crisis before formulating a humanitarian intervention policy, especially taking account of established international laws, this will assist policymakers to formulate a concrete intervention “humanitarian centric” policy. Taking into account the “traditional concepts of humanitarian intervention”, unsanctioned interventions have always been a principle factor in “escalating humanitarian crisis”. Although, not all institutions are equipped to “authorize the use of force” especially taking into account the power of Veto in the UN Security Council, one vote against a humanitarian intervention could prove “costly”. Nonetheless, taking into consideration the novel concept of Responsibility to Protect, which is another alternative to theoretical interpretation of “Just War” in traditional international law, highlights the importance of a formal authorisation from the UN Security Council to carry out humanitarian intervention.

Moreover, the novel concept of Responsibility to Protect also gives special emphasis to regional bodies of the UN such as the UN General Assembly and other regional organizations if the UN Security Council fails to take “agree for a motion”. These alternative actions taken by other regional bodies of the UN will ensure a viable response while preventing “decision paralysis” within the organization, which the UN Security Council faced during the Rwandan civil war. However, it is true that, while waiting for a decision from international organizations, nations are forced to “wait and watch”, which with time could further escalate the conflict. Although states refrain to act “solely on will” and prefer to seek a formal authorization from the UN Security Council in an effort to legitimise their intervention, as it remains the most important evidence showcasing response from the states.

Responding to crimes against humanity and genocide

The traditional concept of Responsibility to Protect (R2P) is especially employed during the state induced violence and crimes against humanity, which then forces the international community to intervene in the light of “moral responsibility” ignoring the non-intervention mechanism highlighted in the UN Charter. Putting behind non-intervention mechanism highlighted in the UN Charter for now, on numerous occasions international communities have tried to bring the state-sponsored violence under the umbrella of “war crimes and crimes against humanity”. However, appropriately using the legal mechanism under actual instances “crimes against humanity” continues to create controversies even today.

Eritrea May Have Committed Crimes Against Humanity, U.N. Charges in New Report | Image: Newsweek

There is absolutely no doubt that, crimes against humanity and human rights abuses focus the attention of international communities to a specific conflict, however using the norms and international legal mechanism in place to justify for humanitarian intervention per se, remains a debatable issue. Nonetheless, the genocide and crimes against humanity, mass killings are grave “criminal” offences established by Genocide Commission under the international law, many “intervening state” uses this as a probable cause, without corroborating the evidence of such crimes. Indeed such offences are criminal in nature, many states collaborating with the “responsible actors” present a case of humanitarian intervention, and then carry out similar violent actions against the oppressed communities.

It is imperative for international communities to formally assess and analyse a “humanitarian crisis” before formulating a “humanitarian intervention” response, especially in the light of international legal norms established for crimes against humanity and genocides, as it can only be proven after deployment of war crimes investigator and peacekeeping military forces, to validate these crimes and violent actions.

To summarise, policymakers must note that, crimes against humanity and genocide vary differently from one conflict to another. Some scenarios involve grave violent actions against the minorities, while others involve mass killings and genocides coupled with hate crimes, but not levelling within the bracket of “international crimes”, which many states extensively use to receive a formal acknowledgement for military intervention.

Conclusion

Mentioned below are some possible points which policymakers must keep in mind, before formulating an intervention policy:

  1. The “traditional” approach of Responsibility to Protect (R2P) enlightened policymakers to formulate a “non-lethal” humanitarian centric intervention policy without violating the sovereignty of the “victim state” while giving special emphasis on state’s responsibility and international community’s response.
  2. Policymakers must bring their attention to “ethical” rather than “legal” interpretation of the Responsibility to Protect, which views humanitarian intervention as an element of “Just War” theory within the context of traditional international law.
  3. Although Responsibility to Protect doctrine is implemented in accordance with the UN Charter, the international community could use “regional initiatives” to formulate a humanitarian intervention while overlapping “unfavourable” outcomes during UN Security Council discussions with “humanitarian-centric” assistance.
  4. The UN Security Council legalises the humanitarian intervention carried by international community while overcoming its “political and legal” challenges, however, policymakers must ensure that the legitimacy of humanitarian intervention remains through-out the mission.

 

 

 

*Anant Mishra is a strategic affairs analyst with specialization on Afghanistan.

The views and opinions expressed in this article are those of the authors and do not necessarily reflect the views of The Kootneeti Team

The views and opinions expressed in this article are those of the author and do not necessarily reflect the views of The Kootneeti Team

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