Permanent Mission of the Kingdom of the Netherlands to the UN, United States

R2P: Statement by Ambassador Herman Schaper at Carnegie Foundation New Leaders progra

3/5/2012

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Statement by H.E. Herman Schaper

Permanent Representative of the Kingdom of the Netherlands to the United Nations

for Carnegie Foundation New Leaders Program

on The Responsibility to Protect: a New International Norm

New York, 5 March 2012 

 Nearly exactly a year ago, on March 17 2011, the Security Council of the UN took one of the most important decisions of its 66 years existence. In resolution 1973 it affirmed, clearly and unequivocally the international community’s determination to fulfill its responsibility to protect the civilian population in Libya from the violence against them by their own government. It also authorized the use of all necessary means, including military measures, in order to prevent further casualties and loss of innocent lives.

So, here we had the SC authorizing the use of military force not against a country which had attacked another country or had committed some other act of aggression, but against a government which was attacking its own population. And in doing so, it invoked the international community’s responsibility to protect civilians in such a case, a norm which was recognized at the 2005 Summit of HOSG which took place on the occasion of the UN’s 60 year existence. The direct reasons for the development of this new norm were the genocide in Rwanda in 1994, and the mass slaughter of Bosnian civilians in Srebrenica in the same year (and it is no co-incidence that the two co-chairs of the so-called Group of Friends of R2P in the General Assembly, are Rwanda and the Netherlands). This had led to an international discussion about what was then called humanitarian interventions. This was not an esoteric debate about theoretical concepts; in 1999 the failure of the Security Council to authorize strong measures to halt the Serbian government’s violence against the Albanian population of Kosovo, at that time still part of Serbia, led to the decision of NATO to start a military air campaign, even without a SC mandate.

This deeply divided the international community, pitting those who denounced the intervention as illegal against others who argued that legality mattered less than the moral imperative to save lives. To overcome this deadlock, the Canadian government established the International Commission on Intervention and State Sovereignty, which came up with the principle of Responsibility to Protect, which was as adopted by the UN General Assembly in 2005 as part of the so-called World Summit Outcome Document.

The focus of R2P, as defined in this document, is on four specific types of mass atrocities: genocide, war crimes, ethnic cleansing and crimes against humanity. This focus on the four crimes is often called “narrow”, but “deep”. Narrow because it applies only to the extreme circumstances of these four mass atrocities, and not to any humanitarian emergency.

Why deep? The document makes clear that the responsibility to protect populations against these four mass atrocities lies first of all which each individual state itself, and it calls upon the international community to encourage and help States to exercise this responsibility. But the document also recognizes the responsibility of the international community, through the United Nations, to help protect populations, should national authorities manifestly fail to protect their own populations against the four crimes. And it adds this can mean taking collective action, in a timely and decisive manner, through the Security Council, on the basis of Chapter VII of the Charter, which includes military action.

So this is what happened in Libya, which was the first time that a military intervention was approved based on the principle of Responsibility to Protect since its adoption in 2005. The decision, and the speed with which it was taken, surprised many, including myself I must say, because until then the implementation of the 2005 decision of the HOSG had been rather slow and not always easy.

The first time the GA had a real debate on R2P was only in 2009, four years after the decisions of 2005. It was based on a report by the Secretary-General entitled “ Implementing the Responsibility to Protect” , and let me underline the important role of SG Ban-Ki-moon in the whole debate about R2P in the last three or four years. He himself has spoken out many times clearly and convincingly on the importance of this new norm and the necessity to support it, and his staff has provided the essential conceptual base for its implementation.

The SG’s 2009 Report introduced a three pillar strategy for R2P implementation;

  • Pillar 1: The responsibility of the state to protect its own population
  • Pillar 2: International assistance and capacity building to enable states to exercise this responsibility
  • Pillar 3: The responsibility of the international community to take timely and decisive measures, if a state fails to exercise this responsibility.

Such action can take many forms – fact finding, suspension from international organizations, arms embargoes, targeted sanctions, but also military action. This was of course an extremely sensitive matter –the UN taking military measures against one of its own members because of the way the government treated its own population- and the general feeling, shared by nearly everybody, was that the best way to build support for the practical implementation of R2P was to focus first of all on the first two pillars and to reserve for later the debate on the third pillar.

And then suddenly, in March 2011 there was the decision of the Security Council to authorize military action against the government of Libya. What were the reasons of this unexpected development? I’d like to mention five.

  1. Many countries did share the assessment that it was a RtoP-situation, as the risk of mass atrocities in places like Benghazi and Misrata was real. Khadaffi had announced that “any Libyan who takes arms against Libya will be executed”, and had called the rebels “cockroaches”, exactly the same term which was used in Rwanda during the genocide. It was felt that inaction by the international community would most likely result in a bloodbath.
  2. The regional organisation of the Arab countries, the League of Arab States had appealed for international action. This reflected that Khadaffi had made many enemies in the more than 40 years he had ruled over Libya; he had hardly any friends left and none among his fellow Arabs.
  3. The resolution which the Security Council had adopted three weeks earlier, implementing the third pillar of R2P through measures like an asset freeze, travel bans, an arms embargo and a referral to the ICC, had not had any effect. As Khadaffi’s troops were nearing Benghazi, the stronghold of the rebels, ‘decisive and timely action’ as the 2005 decision on R2P called it, was necessary.
  4. China and Russia, the two permanent members of the Security Council that consistently invoke the principles of sovereignty and non-intervention did not veto, but abstained. Why they did so, I would’nt be able to say with certainty. Maybe because they did not want to be on the wrong side of history, and expected that the conflict would be over in days. Maybe, they did not want to alienate the Arab states. Or may be, they also feared in this case a mass slaughter of the Libyan population if Khadaffi would not be stopped.
  5. A final reason, which could also have played a role in influencing the Russian and Chines vote, was that the Libyan ambassador to the United Nations, an old friend of Khadaffi who had defended him in the previous months, had end of February openly declared in the Security Council that he had come to the conclusion that Khadaffi’s actions were inexcusable and that action should be taken by the Security Council.

Soon after the adoption of Resolution 1973 on Libya, the Security Council adopted Resolution 1975 on Cote d’Ivoire which used similar language on R2P. The UN-mission with support of the French Licorne troops attacked the defeated president Gbagbo and arrested him in the presidential palace. As a result, R2P was back in the international spotlights and became a hotly debated subject in the media, in domestic political discussions and at the UN.

In the second half of my introduction tonight I would like to focus on some of the main themes in this debate. These can be divided in two categories: objections to the notion of R2P as such, and criticisms which specifically relate to the way R2P was implemented in the case of Libya.

One recurring theme in the arguments of those who oppose R2P as such, is that it is in breach of the principle of sovereignty of states. Now, R2P undoubtedly constitutes an important shift in the doctrine of sovereignty, which for a long term governed the relations between states in Europa. But even in the past sovereignty has rarely been regarded as entirely unqualified. R2P reflects the growing acceptance of the doctrine which places the state at the service of the individual— “sovereignty as responsibility,” in the term coined by scholars and practitioners Francis Deng and Roberta Cohen. Just like the doctrine of the sovereignty of states, this other doctrine of sovereignty as responsibility, has a long history. The Act of Abjuration, which was signed in The Hague in 1581, and which was a kind of Declaration of Independence in the revolt of the Netherlands against the King of Spain, states: … that God did not create the subjects for the benefit of the Prince … but rather the Prince for the sake of the subjects, without whom he would not be a Prince, to govern them justly and wisely, to support and love them as a father does his children and a shepherd his flock, and even to protect them at the risk of his own life and limb.”

Four hundred years later UN Secretary-General Kofi Annan defended this idea in a speech, in which he pointed out that the old orthodoxy of state sovereignty was never absolute. ´After all”, he said, “the Charter was issued in the name of the peoples, not the governments, of the United Nations. Its aim is not only to preserve international peace – vitally important though that is – but also to reaffirm faith in fundamental human rights, in the dignity and worth of the human person. The Charter protects the sovereignty of peoples. It was never meant as a license for governments to trample on human rights and human dignity. Sovereignty implies responsibility, not just power.”

R2P is therefore not really new. The core underlying idea that states have an obligation to protect men and women from the worst atrocities is well established. Basic human rights principles were adopted in the UN Charter and the Universal Declaration of Human Rights, and there is by now a substantial body of international human rights law. The United Nations adopted the Convention on Genocide already in 1948. And the protection of civilians during armed conflict is well established in international humanitarian law.

What happened with the advent of R2P, was that the international community accepted for the first time its collective responsibility to take action, and if necessary even military action, should states fail to protect citizens from genocide, ethnic cleansing, war crimes, or crimes against humanity. R2P thus imposes two obligations—the first upon each state individually, the second on the international community of states collectively. With the embrace of the responsibility to protect, a long and unresolved debate over whether to act became, instead, a discussion about how and when to act.

A second fundamental objection against R2P is that it is just a cover for large countries and great powers to intervene in the domestic affairs of smaller and less powerful countries. We need to take these concerns seriously, especially as they are not entirely wrong, historically speaking. History gives us numerous examples of humanitarian arguments being used as cover for interventions with an entirely different objective.

It is exactly for these reasons, however, that R2P, as it was defined in 2005, had a specific focus on the four crimes which lead to mass atyrocities. Secondly, it was stressed that the use of force could only take place as a last resort. Thirdly, and most importantly, it was agreed that a Security Council mandate is a precondition for any military action under R2P.

In fact, the opponents of R2P are steadily losing ground, as becomes clear from the voting pattern in the General Assembly on successive proposals which aimed at strengthening the Secretariat’s capacity to handle effectively R2Pissues.

In the most recent vote last December the number of countries which voted against such proposals or abstained saw a significant decrease. Voting against went down from 17 to 10, while abstentions went down to 42 from 51. The roll call of the countries voting against includes Iran, Syria, Sudan, Cuba, Venezuela, and Zimbabwe. Maybe that record is telling enough.

The second group of criticisms of R2P focus not so much on the principle itself, but on the way it was implemented in Libya. The feeling that Libya was mishandled by the intervening powers, i.e. NATO, is voiced first of all by the countries who abstained on the vote mandating military action – Russia, China, Brazil, India, and South Africa- and by a number of African countries, who complained that the African Union was sidelined in its efforts to broker a truce to get a process of political consultations between Khadaffi and the rebels going.

One of the most outspoken criticasters has been India’s Permanent Representative to the United Nations, Ambassador Hardeep Puri, who stated recently in his usual direct manner that, “Libya has given R2 a bad name”, and who criticized “over-enthusiastic” members of the international community for misusing Resolution 1973”. Their only interest was in his view the “use of all necessary means to bomb the hell out of Libya” in the pursuit of regime change.

Ambassador Puri’s criticism touch on two important points which also the proponents of the R2P must address. The first is the nature and the wording of the mandate the Security Council gives for military action. And second that NATO had a secret agenda: regime change.

As far as the first point is concerned, the SC’s mandate was overall rather vague. It did include the imposition of a no-fly-zone and forbade troops on the ground, but it also allowed for the use of “all necessary means” in the execution of the mandate. The problem was that there was no thorough military advice underlying the Councils decisions. This is to my mind one of the crucial weaknesses in the process of decision-making in the Council on military matters. Such decision-making would benefit from enhanced military advice on complex operations as the one in Libya, also to ensure that afterwards no disagreements will surface on the exact meaning of the language in a mandate. DPKO could play this advisory role with support from military experts from member states. For R2P-situations specifically, it would be useful to articulate more clearly how R2P will impact military doctrine and strategic concepts.

As far as the accusation that regime change was NATO’s real agenda, in my view the relationship between R2P and regime change was not that the real objective was regime change, and that this led to invoking R2P to provide cover for this secret agenda, but that exactly the opposite happened: implementing the responsibility to protect led to the conclusion that to reach an acceptable outcome, with no risks that one or more of the four crimes would again be committed, demanded a change in the regime. Take the government inspired genocide in Rwanda for example: would anybody seriously consider that this regime would stay in power after a military intervention from abroad to stop the genocide?

A third complaint one often hears from some of the countries that abstained on the Council’s decision to give a mandate for military action against Libya, was that the Council was not able to play its monitoring role in the implementation of resolution 1973 because there was not enough feedback from NATO. A clearer military mandate would help in this respect, but one also needs to be realistic. If you source out implementation of SC-mandates to other organizations or coalitions of the willing, for example NATO in case of Libya, the expectations of monitoring should also be limited. I must add that in general I find it somewhat peculiar that countries which have shown the willingness to implement a mandate of the Security Council, and to execute a very complex military operation, are being criticized by countries who decided not to contribute to the implementation of this mandate, and are demanding a rigorous monitoring regime.

Anyway, micro management from the Council, in particular by countries who did not support the decision to provide a mandate for military action, will undoubtedly result in a decreased appetite to implement SC-mandates. After the lessons learned in Bosnia in the early 1990’s, it I now a firm rule for all Western military: no double key, meaning no UN-veto on the day-to- day management of a military operation run by another organisation or a group of countries.

The Brazilian government has recently made a constructive contribution to the debate by introducing the notion of ‘responsibility while protecting’ (RwP) to reassess the manner in which a military response is implemented to protect civilians. The concept has attracted considerable international interest, and was discussed for the first time at the UN two weeks ago. While further discussions on many of the suggestions made by Brazil will be necessary, its paper is a welcome contribution because it can perhaps steer the debate on R2P, which has become rather polarized on Libya, in a more consensual direction.

This is also important in relation to the current debate on Syria, where one of the main arguments of Russia and China for their vetoes in the SC of resolutions on the crisis in Syria, is that any reference to the responsibility of the Syrian government to protect its civilian population would mean opening the door for military action against Syria. I’m not in a position to judge whether this truly is the main reason for these vetoes, but the only way to find out is to face the issue head- on and to engage with Russia and China on the further implementation of the principle of R2P.

So I’m sure that tonight’s discussion will not be the last one I will participate in, and I would like to thank the Carnegie Foundation for having given me the opportunity to present my thoughts to this august audience.