The essential spirit of the norm of responsibility to protect (R2P), is the protection of populations from mass atrocity crimes either by the state, and, if it fails, the international community. The doctrine, as stated in paragraphs 138 and 139 of the World Summit Outcome Document, stipulates that states have a primary responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, and that if the state is unable or unwilling to protect its population, or as stated in paragraph 139, manifestly failing to protect its populations from these crimes it is the responsibility of the international community to do so.
The idea of “unable” implies the absence of a functioning state. Thus, in territories where no state exists—and where there is a risk that mass atrocities might occur—the responsibility to protect populations from mass atrocities still falls to the international community.
The idea of responsibility to protect was conceived in order to resolve the deadlock between those who insisted on a “right to humanitarian Intervention” and those who viewed such a right as an indefensible infringement upon state sovereignty. In the aftermath of Rwanda and Srebrenica, the United Nations was not only ill prepared to act, but action was paralyzed by the disagreements over limits of sovereignty. The debate which arose out of the Security Council’s failure to authorize military action to stop the ethnic cleansing in Kosovo, and the subsequent aerial bombardment by NATO, divided the international community between those who questioned the legality of the right to intervene and those who argued that legality mattered less than the imperative to save lives.
R2P re-characterized the argument by shifting the focus from “right” of the states to “responsibility” of states towards those at risk of mass atrocity. The 2001 International Commission on Intervention and State Sovereignty (ICISS) report which formulated R2P argued that the relevant perspective was not that of the prospective intervener but of those needing protection. The essence of the norm, which seeks to confront the tragedy of Rwanda and the dilemma posed by Kosovo, is that responsibility originates with each state itself and then broadens to the international community of states. Sovereignty is itself built on a state’s obligation to protect its own people from mass atrocities, failure to do so, does not absolve the state of its own responsibility to protect its people, rather, it provokes a concurrent responsibility of all states, acting as necessary through the UN and in accordance with the UN Charter.
R2P is a state centric norm—a commitment of states acting individually and collectively—which rests on a fundamental reformulation of sovereignty as a form of obligation of the state towards its population, and places the state at the service of the individual. The rubric of unable and unwilling also implies a commitment of states acting collectively in the absence of a functioning state. Thus, if a state is weak and unable to exercise control over its territory, then the responsibility to assist the state to protect its population falls on the international community under Chapter VI and VIII, and if that fails, to take decisive and timely action to protect populations at risk under Chapter VII of the United Nations Charter.
The question is not so much whether R2P has a place in situations where no state exists—from the perspective of populations or individuals, nearly all either claim citizenship to a state or are part of communities that claim group rights from a state—but rather how R2P can be operationalized in fragile or contested states or where non-state actors are effectively in control.
Non state actors are often perpetrators of mass atrocity crimes and, in many instances, have de facto power over the state. They are subject to international humanitarian law, under which a party to a conflict has obligations to civilian populations regardless of its legal or political status. These obligations include prohibitions of murder, cruel treatment, torture, humiliating and degrading treatment; attacks that do not discriminate between military and civilian targets, and attacks that may be expected to cause incidental death or injury to civilians excessive in relation to the concrete and direct military advantage anticipated. R2P, however, is framed around the responsibility of states, and does not speak to the responsibility of non-state actors—after all, only states that were party to the 2005 agreement.
The R2P “tool box” which contains judicial, economic, legislative and military measures, is harder to apply in situations where the state is weak or controlled by non state actors. The key reason for this is that states are susceptible to international pressure in ways that non state actors are not. For example, economic sanctions, domestic political pressures and legal accountability measures have little effect on actors who do not rely upon conventional economic and political goods. The inability to use judicial legislative or economic measures leaves only coercive military means as a tool to stop mass atrocities from occurring. And as the Secretary General aptly puts in his January 2009 report on Implementing the Responsibility to Protect, nowhere is the gap of capacity, imagination and will within the international community more pronounced than in realm of forceful and timely response to the most flagrant R2P crimes: Darfur, DRC and Somalia, being a case in point. In each of these cases, non-state actors, fragile states and unwilling leaders preclude the use of non-military solutions; however, the political will to use military action to halt crimes on the ground has been markedly absent. Thus, the problem of the fragile, weak or non-existent state is not applicable of R2P, but rather, its operationalization and the need for a wide range of measures that take into account the different political realities of conflicts.
R2P is a political commitment on the part of the international community to adopt measures necessary to protect populations at risk of widespread or systematic attacks. This commitment is the central feature of R2P, not the concept of state or the particular facts of who the perpetrators are. Nevertheless, the norm is still in its early stages of development. The challenge ahead is to develop capacity and an overall strategy both at national and international levels to ensure that the pledge made by world leaders in 2005 to stop mass atrocity crimes is turned into reality. This will mean strengthening state capacity; developing a robust R2P tool box with an emphasis on prevention and ability to deal with non state actors and weak or fragile states; considering principles, rules and doctrine to guide the use of coercive force relating to R2P—when all fails; adopting accountability measures; strengthening UN and regional organizations in their early warning capacities and mainstreaming R2P in the other areas like peace building, human rights, humanitarian affairs and development.
In the July 2009 General Assembly (GA) debate on R2P, the GA continued its consideration of responsibility to protect, for the first time since 2005. There was near unanimity, as reflected in the statement made by 94 member states, that the task ahead is to implement R2P to save lives at risk of mass atrocities. The debate was a big step towards building political will for timely and decisive action— the greatest challenge which confronts the commitment of R2P.
October 7, 2009