The R2P Myth

[Magda Hassan]

The R2P Myth

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[TD="class: insidenewsmiddle"] By Tim Pascoe - posted Friday, 22 November 2013[/TD]
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Any casual observer could be forgiven for thinking that the international community has failed to fulfil its "Responsibility to Protect" in Syria. Indeed, the proliferating theses, academic articles and general commentary evoking the fashionably dubbed "R2P" norm speaks to the approval of the doctrine in ivory towers. However the "Responsibility to Protect" is a myth, perpetuated by those with a vested interest in its survival. The R2P is not a norm of international law and any suggestion to the contrary only obfuscates the limits of the legal use of force. The mythical R2P beast, with the head of a howler monkey and the legs of a newborn giraffe, is perceived to exist in two forms.
First, is as a framework for the United Nations Security Council to authorise the use of force to halt mass atrocities. Yet the R2P doctrine is simply a re-packaging of existing State obligations and therefore offers nothing new for Security Council deliberations. Article 2(4) of the United Nations Charter contains the general prohibition of the threat and use of force, with exemptions permitted only in self-defence in response to an armed attack or if authorised by the Security Council. Guidelines for Security Council authorisation are contained in Chapter VII of the United Nations Charter and can be understood simply as enforcement action to "maintain international peace and security".
However, in 1992 the Security Council declared that instability in the economic, social, humanitarian and ecological fields could be considered a threat to international peace and thus subject to Chapter VII provisions. This declaration was followed by Security Council authorisation in 1994 for a multinational force to restore democracy in Haiti, a situation that clearly did not represent a threat to "international peace and security" but rather was demonstrative of the Security Council's ability to intervene in domestic affairs if deemed necessary. Indeed, by 1995 the International Criminal Tribunal for the Former Yugoslavia ruled that it was "settled practice" that Chapter VII powers could be invoked to address purely internal armed conflicts.
Moreover, human rights are protected by numerous international conventions with the protection of said rights contained within those conventions and include mechanisms for the peaceful settlement of disputes without permitting unilateral military action. For example, the Convention Against Genocide provides for resort to "competent organs of the United Nations", suggesting that while the unilateral use of force is not permitted, the Security Council could utilise Chapter VII powers to enforce the convention.

While advocates argue that the R2P doctrine received the endorsement of the international community at the 2005 United Nations World Summit, the outcome document clearly outlines that R2P is the amalgamation of pre-existing obligations: The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organisation as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

As the R2P does not permit the unilateral right of intervention and is merely a repackaging of pre-existing obligations it offers no remedy for overcoming the politicised environment of the Security Council. Furthermore, even if R2P did offer anything "new" the concept suffers from substantive indeterminacy limiting its utility as a framework for the authorisation of the use of force: when exactly does a State "manifestly fail" to protect their population and impose a responsibility on the international community? After 10,000 deaths? After 100,000? After 300,000 as is the case in Darfur? R2P provides no answers.
Second, the R2P supposedly exist as an "emerging" custom of international law. However, while the R2P has featured prominently in debate regarding the legitimacy of the use of force, State practice and Security Council deliberations do not provide any evidence that the doctrine is an emerging custom of international law. Advocates point to Security Council Resolution 1962 regarding the situation in Cote d-Ivoire and Resolution 1973 authorising the use of force in Libya as solidifying R2P in international law.
However, both these Resolutions only very vaguely refer to the doctrine in the preamble, which arguably has no legal significance but rather serves as a rhetorical flourish before the dry operative paragraphs of the Resolution. Indeed, States are loath to accept, invoke or create a Responsibility to Protect. Moreover, inaction in Syria, Darfur and the Central African Republic (amongst others) provides further evidence that the R2P is far from an existing or emerging custom of international law.
The International Commission on Intervention and State Sovereignty (ICISS) in 2001 suggested that even in the absence of Security Council authorisation a unilateral armed intervention to halt mass atrocities may be legitimate. However, there is a difference between legitimacy and legality. Furthermore, a significantly watered-down version of the ICISS report informed the 2005 World Summit Outcome document; therefore it is erroneous to claim that the ICISS report itself has been endorsed by the international community.
The advocacy infrastructure for the R2P, and in favour of expanding the general prohibition of the threat and use of force to exempt humanitarian intervention, is formidable. An audit of international relations syllabuses would reveal that the "responsibility to protect" is firmly rooted in political science departments across the world. Indeed a plethora of commentators, such as Admiral James Stavridis, are arguing that the unauthorised use of force in Syria could be based on the R2P doctrine. However, such advocacy is misplaced. Coercive military intervention is seldom an appropriate mechanism to stopping mass atrocities.
R2P is a problematic principle as it may provide the pretext to justify politically motivated interventions that threaten to erode the positivism of international law and the principles of State sovereignty and territorial integrity upon which international order rest. Rather than trying to revive the stillborn R2P or adopt flexible and legally dubious interpretations of Article 2(4) of the United Nations Charter to justify intervention to ostensibly halt mass atrocities, it is important to examine more creative alternatives that prevent conflict and incentivise negotiation to end ongoing conflict, such as strengthening international criminal law mechanisms. Despite the moral distaste for Security Council quibbling while men, women and children are massacred by a despot, it is important to maintain institutional processes and respect the law regarding the use of force.

http://www.onlineopinion.com.au/view.asp?article=15720