Responsibility to Protect

I was recently asked to post a bit of background on the Responsibility to Protect Doctrine (aka R2P).

This concept was first articulated by an Independent Commission established by the Government of Canada to attempt to resolve the tension between the norm of state sovereignty, on which the entire UN Charter regime rests, and the protection of civilian populations from grave human rights abuses at the hands of their own governments – a parallel set of principles also espoused by the UN Charter preamble and articulated in two further sets of treaties – human rights law and international humanitarian law.

The tension between these principles had become evident in the 1999 Kosovo crisis, which posed a choice between two competing principles: 1) do something to prevent what many thought to be a looming genocide and 2) do something legally. Under the UN Charter regime, military intervention in a sovereign state is never legal unless authorized by the UN Security Council, which requires a 2/3 vote and no vetoes by those holding Permanent Status on the Council (the US, UK, Russia, China and France). Because the Council is split on the legitimacy of intervention even in cases of genocide, such consensus is rarely forthcoming.

The International Commission on Intervention and State Sovereignty (ICISS), peopled by prominent scholars and jurists, produced a landmark report in 2000, redefining sovereignty as responsibility. Previous, sovereignty had been understood as a claim to absolute autonomy within one’s territorial borders. The R2P doctrine places the burden of proof on the state to govern responsibly so as to protect its civilian population. If it fails to do this or directly threatens its citizens’ bodily integrity rights, it sacrifices its claim to sovereignty; at that point, the responsibility to protect is transferred to the international community.

The seemingly brilliant concept has worked well as a rhetorical device. It has been legitimated through adoption in a number of UN documents, including the High-Level Panel on Threats, Challenges and Change in 2004 and the 2005 UN Millennium Conference Outcome Document. However, it does not really provide a road-map to the mechanism for triggering a legitimate intervention. The criteria it gives for an appropriate intervention do not improve on just war theory, which dates back at least to Augustine. Its lofty language of “just cause,” “right intention,” “last resort,” “proporotional means” and “reasonable prospects” already framed the debate on Kosovo. And the section on “what do to when the Security Council will not act” lists primarily the exact same types of non-coercive operations that currently exist as band-aid efforts to mitigate suffering of civilians in armed conflicts.

Since “grave human rights abuses” are in the eye of the beholder, the big question of who should decide when violations of sovereignty are justified remains unanswered and a subject of controversy among governments. This is the context for Nikolas K. Gvosdev’s recent suggestion at the Washington Realist that the norm be revised to apply only to non-democracies. But I think that idea only skirts the same issue: who should decide who counts as a democracy?