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

Responsibility to Protect

 Statement for Peace Islands Institute

on The Responsibility to Protect: Implications to the Crises in Syria and Other Nations

by Herman Schaper

Permanent Representative of the Netherlands to the United Nations in New York

New York, 28 February 2013

 

Nearly two years 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 measures in order to protect civilians and civilian populated areas. And all necessary measures do includes military action.

In contrast, the UN Security Council has hardly been able to act with regard to Syria since May 2011. Syria is clearly a R2P-situation with 70,000 deaths, 4 mln. people in need, including 2 mln. internally displaced and 936.700 registered refugees in neighboring countries, as Valerie Amos declared in the UN Security Council yesterday. But various attempts to adopt a resolution in the Security Council stranded on vetoes by Russia and China.

This difference between the international community’s decisive action in Libya and its inaction in Syria is indeed stark. I am therefore pleased that the Peace Islands Institute invited me to contribute to this panel on Responsibility to Protect: Implications to the Crises in Syria and other Nations.

In my introduction, I will address the Netherlands perspective on the principle of R2P as well as its application in concrete cases, including Libya and Syria. 

Development of Responsibility to Protect

The direct reason for the development of this new principle of the Responsibility to Protect were two tragedies in which the international community did not act; the genocide in Rwanda in 1994, and the mass slaughter of Bosnian civilians in Srebrenica in 1995. This 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 Republic of Serbia, led to the decision of NATO to start a military air campaign, even without a SC mandate, which after three months of aerial bombardments forced Belgrade to give up control of Kosovo.

This deeply divided the international community, pitting those who denounced the intervention as illegal against others who argued that the moral imperative to prevent or put an end to mass atrocities trumped the principle of legality. To explore the possibility to bring these two positions together, the Canadian government established the International Commission on Intervention and State Sovereignty, which came up with the principle of Responsibility to Protect, which was adopted by the UN General Assembly in 2005 in paragraphs 138 and 139 of the Outcome Document of the so-called World Summit of Heads of State and Government. 

The text of these two paragraphs was carefully drafted. It limited the international community’s focus of R2P to four specific types of mass atrocities:  genocide, war crimes, ethnic cleansing and crimes against humanity. This focus on the four crimes is often described as “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? Paragraph 138 makes clear that the responsibility to protect populations against these four mass atrocities lies first of all with each individual state itself, and it calls upon the international community to encourage and help States to exercise this responsibility.

But the following paragraph 139 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 that 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.

The international community also honored in paragraph 139 the UN Charter by giving a decisive role to the UN Security Council in the decision making with regard to collective action in R2P-situations, and the UN member states have accepted the central role of the Council, although the Council is not without its critics. Some suggestions by the ICISS-report to address some of these criticism by establishing criteria for military intervention or to request the permanent members of UNSC to refrain from using their veto power in cases of mass atrocities, were not included in these paragraphs.

Three pillars

I want to stress however that the Responsibility to Protect is much more than military intervention. 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, and as a last resort, also military action.

So even pillar 3 is much more than military intervention. But military measures are the most sensitive –the UN authorizing military measures against one of its own members because of the way a government treats its own population.

Sovereignty

The Netherlands sees Responsibility to Protect as an emerging norm, and as one of the most important recent developments in international relations together with the establishment of the International Criminal Court.

R2P is a fundamental shift in the doctrine of sovereignty, which for a long term governed the relations between states. It reflects the growing acceptance of the doctrine which places the state at the service of the individual citizen— “sovereignty as responsibility,” in the term coined by scholars and practitioners Francis Deng and Roberta Cohen.

But even in the past sovereignty has rarely been regarded as entirely unqualified. 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, which stated that persons committing genocide shall be punished whether they are constitutionally responsible rulers, public officials or private individuals. 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.

Application of R2P

Let me now turn to its application in real life politics, because a discussion on how and when to act is not necessarily easier than whether to act. This is exactly what we see today in the case of Syria. Syria is on the agenda of the Council and debates continue on how to act and which measure to adopt, but deep divisions exist and the suffering continues.

We have also seen however the more successful application of Responsibility to Protect in recent years, especially in less-know situations, for example Guinea or Kenya, which prevented further mass atrocities.

Guinea: on 28 September 2009, government forces in Guinea interrupted a peaceful political protest in a stadium in Conakry and opened fire on civilians. According to an investigation by Human Rights Watch, the violence resulted in over 150 civilian deaths, at least 1400 wounded, and reports of widespread sexual violence and rape. The international community responded rapidly to the crisis by increasing the pressure on the junta with a variety of tools including condemnation, mediation, arms embargoes, sanctions and threats of coercive measures. Elections were held and the crisis calmed down.

Kenya is another example where an emerging risk of mass atrocities was halted. In 2007, the results of presidential elections triggered widespread and systematic violence resulting in more than 1,000 deaths and the displacement of over 500,000 civilians. Clashes were characterized by the ethnically targeted killings of people. The international community responded swiftly. This time with the African Union in the lead based on article 4(h) of its Charter, which gives the right to the Union to intervene in a Member State in the case of grave circumstances, namely: war crimes, genocide and crimes against humanity. The Charter of the AU was adopted in 2002, several years before the UN embraced R2P.

Former UN Secretary-General Kofi Annan – heading the African Union Panel of Eminent Personalities was accepted by both opposing political parties in Kenya. The mediation efforts led to the signing of a power-sharing agreement on 28 February 2008. Subsequently, the international community continued to work with Kenya on issues like a new constitution, judicial and police reform, reconciliation, and early warning. The next election will be on March 4, 2013 and hopefully similar violence will not emerge again, because the situation is certainly not stable yet.

Two examples, therefore, of more or less preventive measures that halted R2P-situations and avoided possible large scale killings and other mass atrocities. We have also seen examples of more coercive efforts by the international community of the Responsibility to Protect in the case of Libya and Cote d’Ivoire in 2011.

Libya

Protests that began in the capital of Tripoli spread within weeks across the country to the city of Benghazi, which became the opposition’s stronghold and was soon subject to shocking brutality as Gaddafi dispatched the national army to crush the unrest. The Libyan leader expressed clear intent to continue committing massive human rights violations by announcing to Benghazi residents that his forces would show “no mercy” to rebels. Gaddafi’s intentions were clear in his speech  of 22 February, when he used language reminiscent of the genocide in Rwanda and stated that he would rather die a martyr than step down. He also called on his supporters to attack the protesting “cockroaches” and “cleanse Libya house by house” until all protestors had surrendered.

 Faced with Gaddafi’s imminent intention to massacre the city’s population, it was clear that tough international action in response to the Libyan government’s manifest failure to uphold its responsibility to protect was needed to halt ongoing crimes and prevent a bloodbath.

The Arab League played an important for setting the stage for international action by calling for measures by the Security Council.

On 26 February, the UN Security Council adopted resolution 1970. This resolution was adopted by consensus and affirmed the government of Libya’s ‘responsibility to protect’. It called for a ceasefire and for steps to fulfill the legitimate demands of the populations. It also referred the situation to the Prosecutor of the International Criminal Court and imposed an arms embargo, a travel ban and an asset freeze.

But this did not stop Colonel Khadaffi. Threats against civilians in Benghazi became even more serious and the Security Council decided to swiftly adopt resolution 1973 on 17 March, 2011, 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. 

Soon after the adoption of Resolution 1973 on Libya, the Security Council also adopted a resolution on Cote d’Ivoire which used similar language on R2P. Subsequently, forces of the new President Ouattarra with support of French troops, which were stationed in the country, attacked the defeated president Gbagbo and arrested him in the presidential palace.

Unfortunately in recent years, we have also seen far less effective responses by the international community with regard to R2P-situations, for example in Darfur or a failure to take any real action at all, as was the case in Sri Lanka, even while in both situations mass atrocities were committed, which brings me to Syria.

Syria

The situation in Syria is clearly an R2P-situation. The regime, but also some of the opposing voices are committing crimes against humanity according to the various reports of the Commission of Inquiry established by the Human Rights Council, and we can see it on the news on a daily basis.

Senior UN-leadership, including the Secretary-General, the High Commissioner for Human Rights and the UN’s Special Advisers on the Prevention of Genocide and on the Responsibility to Protect, have called the situation in Syria an R2P-situation.

In multiple statements, the UN-leadership made clear that it was alarmed by reports of the use of indiscriminate fire by Syrian security forces and associated militias against densely populated areas in several cities, resulting in high numbers of deaths and injuries. 

Mr. Adama Dieng, the UN’s new special advisor for the prevention of genocide, was particularly concerned in his last statements that as the situation in Syria deteriorates further, there is a growing risk that civilian communities, including Alawite and other minorities perceived to be associated with the Government, its security forces and its militias, could be subject to large scale reprisal attacks.  He also called on all actors to condemn hate speech that could constitute incitement to violence against communities based on their religious affiliation.

It is clear that the Government of Syria is manifestly failing in its responsibility to protect its population. Unfortunately, however, the UN has until now not been able to act on the commitment made by all Heads of State and Government at the 2005 World Summit to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, including their incitement.

Only small steps have been possible, such as the appointment of a Joint Envoy, first Mr. Annan and now Mr. Brahimi to try to find a political solution. But no serious pressure is applied by the UN Security Council due to multiple vetoes by China and Russia.

The argument one hears is that strong measures by the international community would mean foreign intervention which would only lead to chaos. But in reality, the opposite is true. An early strong involvement by the UN backed by appropriate Security Council resolutions and a united international community could perhaphs have prevented the situation of total chaos, which is now the reality in Syria.

In other words: the scenario of chaos that some countries predicted if the UN would have been taking early action along the lines of resolution 1970 and 1973,  has emerged due to this inaction. This reminds us that both action and inaction entail serious risks and costs, and the cost of the inaction by the Security Council in relation to Syria keeps on rising every day.

Second, taking first steps by adopting a 1970-type of resolution authorizing a weapons embargo, asset freeze and other sanctions would in no means result automatically in military intervention. Russia and China continue to have their veto power for a 1973-type of resolution authorizing military action. Also the region is not calling for military action as it was in the case of Libya. This argument that taking non-military actions by the Security Council will inevitably lead to military intervention would in fact completely paralyze any Council action in any country if applied consistently.

Moreover, when in recent years this argument was used on a number of other occasions (for example when sanctions were applied against Iran and North Korea), a solution was found by referring explicitly to Article 41 of the UN Charter in the relevant Security Council resolution. This Article 41 only covers “measures not involving the use of armed force”, which forms an additional guarantee that these resolutions could not be used as a legal basis for military action.

Due to this inaction of the Security Council and the unwillingness by some to use serious pressure to achieve a political solution, the call for military action is increasing heardly in societies around the world. Is this a possibility on the basis of the principle of R2P, without a Security Council mandate? The answer is: not with an appropriate legal basis. The Heads of State and Government have clearly agreed in 2005 that any collective action should be, on a case-by-case basis, agreed by the UN Security Council. So, we have no legal basis to intervene militarily without a Security Council mandate. That’s how it is, and one cannot help thinking that it is a pity that the decision of the World Summit did not include an agreement that the permanent members of the Security Council would not use their veto in cases of mass atrocities.

“A new 1970”

For Syria, we therefore need to continue to work along the political tracks. From an R2P-perspective, we need to aim again for a a resolution with a strong focus on a political transition in line with the Geneva Communique agreed by the Action Group for Syria in July 2012 which outlines a framework for political transition that meets the legitimate aspirations of the Syrian people.

A recommitment to this communiqué and its implementation is necessary and will also require unified pressure on the regime as well as other armed groups.  Unified pressure could come from a weapon embargo ensuring that the conflict is not further fuelled by arms. An asset freeze by all members of the United Nations would deplete the resources which enable the continuation of the fighting and killing. And accountability is necessary, which could be achieved through a referral to the ICC.

However, agreement on such a resolution seems not realistic in the short term, because of opposition of Russia and China. In the short term, there is therefore unfortunately not much we can do except to continue what the friends of Syria are doing by providing humanitarian aid, support the opposition and engaging with Mr. Brahimi. This is highly unsatisfactory, but the commitment to the Responsibility to Protect is unfortunately not strong enough for some countries to take decisive action, so it seems, notwithstanding their signature under the 2005 Outcome document. 

In conclusion

R2P has made considerable conceptual progress and further operationalization is crucial. The implementation of the Pillar 3 through the UNSC has been far less satisfactory. The UNSC is a very political body and national interests often dominate decision-making, which often results in inconsistencies in policy and practice. The arguments used by Russia and China have to be understood in the context of national interest and the primacy of the principle of national sovereignty. The doctrine of sovereignty as responsibility has not yet taken root sufficiently.

It would be also naive to believe that humanitarian motives are the only motives for countries to intervene politically or militarily. Often a mixture of interest and others motives are at play, of which some are value driven and others are inspired by self-interest. The principle of R2P enhances the value driven argument within these complex considerations.

The decisions of the World Summit of 2005 have  increased tremendously the moral and political pressure on members of the Security Council and the international community at large, to refuse to accept the recurrence of mass atrocities, and to feel a responsibility to prevent or deal with them when they occur. This remains a major step forward since Rwanda and Srebrenica.

For more information contact: martijn.dadema@minbuza.nl