The Sunday Mail
Dr Christopher Mushohwe
This week’s instalment of the series “The Regime Change Agenda”, based on the book by Dr Nyaradzo Mtizira-Nondo, we continue with Information, Media and Broadcasting Services Minister Dr Christopher Mushohwe’s exploration of the concept of the “responsibility to protect” in international relations.
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Millions of human beings remain at the mercy of civil wars, insurgencies, state repression and state collapse.
This is a stark and undeniable reality, and it is the heart of all the issues which the ICISS has been wrestling with.
What is at stake here is not making the world safe for big powers, or trampling over the sovereign rights of small ones, but delivering practical protection for ordinary people, at risk of their lives, because their states are unwilling or unable to protect them
Responsibility to protect was endorsed by the General Assembly of the UN in 2005, and unanimously reaffirmed by the Security Council in 2006 (Resolution 1674) and in 2009 (Resolution 1894).
The UN Secretary General Ban Ki moon has identified the challenge of implementing responsibility to protect as one of the cornerstones of his Secretary Generalship.
But all this is easier said than done. There have been as many failures as successes, perhaps more failures, in the international protective record in recent years.
There are continuing fears about a “right to intervene” being formally acknowledged.
If an intervention for human protection purposes is to be accepted, including the responsibility of military action, it remains imperative that the international community develop consistent, credible and enforceable rules to guide state and intergovernmental practice. The experience and aftermath of Somalia, Rwanda, Srebrenica and Kosovo, as well as interventions and non-interventions in a number of other places, such as Iraq, Afghanistan and Mali have provided a clear indication that the tools, devices and thinking of international relations need now to be comprehensively reassessed, in order to meet the foreseeable needs of the 21st century.
Any new approach to intervention on human protection grounds needs to meet at least four basic objectives;
1. to establish clearer rules, procedures and criteria for determining whether, when and how to intervene;
2. to establish the legitimacy of military intervention when necessary and after all other approaches have failed;
3. to ensure that military intervention, when it occurs, is carried out only for the purposes proposed, is effective, and is undertaken with proper concern to minimise the human costs and institutional damage that will result; and
4. to help eliminate, where possible, the root causes of conflicts while enhancing the prospects for durable and sustainable peace.
Basic principles
State sovereignty implies responsibility and the primary responsibility for the protection of its people lies with the state itself.
Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable or has no capacity to halt or avert the harm or suffering and or the state in question is the perpetrator of the suffering, then the principle of non-intervention yields to the international responsibility to protect.
Foundations
The foundations of the responsibility to protect, as a guiding principle for international community of states, lie in: obligation inherent in the concept of sovereignty; the responsibility to the Security Council, under Article 24 of the UN Charter, for the maintenance of international peace and security; specific legal obligations under human rights and protection declarations, covenants and treaties, international humanitarian law and national law; and the developing practice of states, regional organisations and the Security Council itself.
Elements
The responsibility to protect embraces three specific responsibilities:
◆ The responsibility to prevent: to address both the root causes and direct causes of international conflicts and other man-made crises putting population at risk.
◆ The responsibility to react: to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention.
◆ The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the root causes of the harm the intervention was designed to halt or avert.
First, the responsibility to protect implies that an evaluation of the issues from the point of view of those seeking or needing support, rather than those who may be considering intervention. Our preferred terminology refocuses the international searchlight back where it should always be: on the duty to protect communities from mass killing, women from systematic rape and children from starvation.
Secondly, the responsibility to protect acknowledges that the primary responsibility in this regard rests with the state concerned, and that it is only if the state is unable or unwilling to fulfil this responsibility, or is itself the perpetrator, that it becomes the responsibility of the international community to act in its place. In many cases, the state will seek to acquit its responsibility in full and active partnership with representatives of the international community.
Thus the “responsibility to protect” is more of linking concept that bridges the divide between intervention and sovereignty; the language of the “right or duty to intervene” is intrinsically more confrontational.
Thirdly, the responsibility to protect means not just the “responsibility to react” but the “responsibility to prevent” and the “responsibility to rebuild” as well.
It directs our attention to the costs and results of action versus no action, and provides conceptual, normative and operational linkages between assistance, intervention and reconstruction.
Prevention is the single most important dimension of the responsibility to protect: prevention options should always be exhausted before intervention is contemplated, and more commitment and resources must be devoted to it.
The exercise of the responsibility to both prevent and react should always involve less intrusive and coercive measures being considered before more coercive and intrusive ones are applied. The just cause threshold: Military intervention for human protection purposes is an exceptional and extraordinary measure.
To be warranted, there must be serious and irreparable harm occurring to human beings, or imminently likely to occur (Richard H. Cooper and Juliette Voinov Kohler, 2009).
The precautionary principles
◆ Right intention: The primary purpose of the intervention, whatever other motives intervening states objective must be to halt or avert human suffering. Right intention is better assured with multilateral operations, clearly supported by regional opinion objective.
◆ Last resort: Military intervention can only be justified when every non-military option for the prevention or peaceful resolution of the crisis has been explored, with reasonable grounds for believing lesser measures would not have succeeded.
◆ Proportional means: the scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the defined human protection objective.
◆ Reasonable prospects: there must be a reasonable chance of success in halting or averting suffering which has justified the intervention, with the consequences of action not likely to be worse than the consequences of inaction.
Right authority:
◆ There is no better or more appropriate body than the United Nations Security Council to authorize military intervention for human protection purposes. The task is not to find alternatives to the Security Council as a source of authority, but to make the Security Council work better than it has.
◆ Security Council authorisation should in all cases be sought prior to any military intervention action being carried out. Those calling for an intervention should formally request such authorisation, or have the Council raise the matter on its own initiative, or have the Secretary-General raise it under Article 99 of the UN Charter.
◆ The Security Council should deal promptly with any request for authority to intervene where there are allegations of large scale loss of human life or ethnic cleansing. It should in this context seek adequate verification of facts or conditions of facts or conditions on the ground that might support a military intervention.
◆ The permanent five members of the Security Council should agree not to apply their veto power, in matters where their vital state interests are not involved, to obstruct the passage of resolutions authorising military intervention for human protection purposes for which there is otherwise majority support.
◆ If the Security Council rejects a proposal or fails to deal with it in a reasonable time, alternative options are: consideration of the matter by the General Assembly in Emergency Special Session under the “Uniting for Peace” procedure; and action within area of jurisdiction by regional or sub-regional organisations under Chapter VIII of the Charter, subject to their seeking subsequent authorisation from the Security Council.
◆ The Security Council should take into account in all its deliberations that, if it fails to discharge its responsibility to protect civilians in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation-and that the stature and credibility of the United Nations may suffer thereby.
Operational principles:
◆ Clear objectives; clear and unambiguous mandate at all times; and resources to match.
◆ Common military approach among involved partners; unity of command; clear and unequivocal communications and chain of command.
◆ Acceptance of limitations, incrementalism and gradualism in the application of force, the objective being protection of a population, not defeat of a state.
◆ Rules of engagement which fit the operational concept; are precise; reflect the principle of proportionality; and involve adherence to international humanitarian law.
◆ Acceptance that forces protection cannot become the principal objective.
◆ Maximum possible coordination with humanitarian organisations.
Abuses
Some countries have misappropriated the term responsibility to protect and used it to justify military confrontation with non-state actors. Some have gone so far as to use responsibility to protect, to justify the invasion and occupation of other countries.
UN member states signed the 2005 World Summit Outcome Document that effectively legitimised responsibility to protect as an international doctrine.
However, because of the propensity towards military adventurism regime change and bringing or exporting freedom and democracy by force, vigilance is required when implementing responsibility to protect.
Sovereignty
Sovereignty has come to signify, in the Westphalian concept, the legal identity of a state in international law.
It is a concept which provides order, stability and predictability in international relations since sovereign States are regarded as equal, regardless of comparative size or wealth.
The principle of sovereignty signifies the capacity to make authoritative decisions with regard to the people and resources within the territory of the state.
Generally, however, the authority of the State is not regarded as absolute, but constrained and regulated internally by constitutional power sharing arrangements.
A condition of any state’s sovereignty is a corresponding obligation to respect every other state’s sovereignty; the norm of non-intervention is enshrined in Article 2.7 of the UN Charter. A sovereign state is empowered at international law to exercise exclusive and total jurisdiction within its territorial borders.
Other states have the corresponding duty not to intervene and or interfere in the internal affairs of a sovereign State.
If that duty is violated, the victim state has further right to defend its territorial integrity and political independence.
In the era of decolonisation, the sovereignty of states, the equality of states and the correlative norm of no-intervention received its most emphatic affirmation from the newly-independent states.
At the same time, while intervention for human protection purposes was extremely rare, during the Cold War years State practice reflected the unwillingness of many countries to give up the use of intervention for political or other purposes as an instrument of policy.
Leaders on both sides of the ideological divide intervened in support of friendly leaders against local populations, while also supporting rebel movements and other opposition causes in states to which they were ideologically opposed.
None were prepared to rule out a priori the use of force in another country in order to rescue nationals who were trapped and threatened there.
The established and universally acknowledged right of self-defence, embodied in Article 51 of the UN Charter, was sometimes extended to include the right to launch punitive raids into neighbouring countries that had shown themselves unwilling or unable to stop their territory from being used as a launching pad for cross-border armed raids or terrorist attacks.
But all that said, the many examples of intervening in actual state practice throughout the 20th century did not lead to an abandonment of the norm of non-intervention.
The bedrock of non-intervention principle is spelt out in article 2.4 of the Charter, which provides that “All Members shall refrain”. . . from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations, and Article 2.7 of the United Nations prohibits intervention “in matters which are essentially within the domestic jurisdiction of any state.”
What lies “essentially within the domestic jurisdiction” is not further defined and is indeed much contested, especially in the context of human rights issues.
A crucial qualification to the bedrock principle is Article 24 of the Charter, which “to ensure prompt and effective action by the United Nations” confers upon the Security Council the “primary responsibility for the maintenance of international peace and security.”
There are important provisions relating to the pacific settlement of disputes in Chapter VI of the Charter, but the cutting edge of that responsibility is set out in Chapter VII, which describes the action the Security Council may take when it determine(s) the existence of any “threat to the peace, breach of the peace, or act of aggression (Article 39)”.
Such action may fall short of the use of force, and consists of such measures as embargoes, sanctions and the severance of diplomatic relations (Article 41).
However, should the Council consider that such measures are likely to be inadequate, “it may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security”-in other words, it may resort to or permit the use of military force (Article 42).
Another argument which arises from the responsibility to protect is the distinction between legitimacy and legality. According to the former Secretary General, Kofi Annan’s High Level Panel on Threats, Challenges and Change, the maintenance of World peace and security depends mainly on there being a common global understanding accepted on when the application of force is both legal and legitimate.
However, a shared understanding of what constitutes this legality and legitimacy in international relations is another heated debate.
The growing gulf between lawful and legitimate use of force is therefore an erosion of the sense of international community.
