No State is No Excuse

Whose Responsibility To Protect? War and Peace

The responsibility to protect concerns the enduring, perennial obligations of states to protect populations from mass atrocities. The international community can and must encourage, assist and, in extreme cases, compel states to provide this protection. The R2P principle is notable insofar as it is premised on the idea that the “responsibility” of the agent (i.e. the state) is not contingent upon the capacity of the agent to perform its responsibilities (in contrast to most moral and political philosophy discussions of “responsibility”). As such, in instances where the state (or at least the governmental authority) has ceased to function, nothing fundamentally changes in relation to R2P. The state still bears a responsibility which it will likely struggle to perform, and the international community still bears its own responsibilities to assist and, as a last resort, coerce the state to uphold its protection obligations. The manifest failure to prevent mass atrocities against any population only signifies that the international community bears a special responsibility to take appropriate mitigating action and, in the aftermath, to follow through with post-conflict assistance to enable the state to build the capacity to uphold its primary responsibility.

Where states do not exist, or rather where populations are seemingly not within the ambit of a given state’s responsibility, R2P holds that the international community nevertheless bears a responsibility to protect. But it is worth pointing out that every inhabited place on the planet comes under the jurisdiction of a state, which seems to render this point moot. Even in the very rare case that the jurisdiction of state authority is questioned, it is the international community’s appropriate course of action that differs, not the nature of the duties born. In this sense, there is not anything contradictory here. Even if the state is unable to carry out its responsibilities because it has ceased to function, the R2P still stands. Nothing must be remedied in the R2P principle in this respect.

It is likewise misleading to overstate the state-centricity of R2P. While the endorsement of R2P at the 2005 World Summit was agreed upon by states and applies to states, the principle is embedded on international humanitarian law, which imposes legal obligations on non-state actors as well. According to the body of law that undergirds R2P, non-state actors are legally obliged to refrain from committing war crimes and crimes against humanity. The international community bears a responsibility to take appropriate mitigating action if state authorities are incapable or unwilling to sanction those responsible for such crimes in their territory. Furthermore, the World Summit R2P agreement affirms that coercive action to uphold the international community’s responsibility should be authorized by the United Nations Security Council, whose broad discretionary powers grant it the authority to respond to security threats as it deems fit, including grave breaches of International Humanitarian Law (IHL) by non-state entities.

 

In terms of the “practice” of R2P, there are three cases where its purported “statism” appears to cause problems:

1) Non-state belligerency: In the case of Sri Lanka, does R2P apply to the Liberation Tigers of Tamil Eelam (LTTE)? Here, the answer is yes, inasmuch as LTTE has a legal duty to not commit grave breaches of IHL. If they fail in this duty they forfeit their right to be considered a lawful belligerent. It is fair to say that LTTE did fail this test, quite spectacularly. This is not to suggest that the government of Sri Lanka does not bear the responsibility to take all precautionary measures to ensure that civilians do not fall in its crossfire; it too bears the responsibility to uphold IHL with due adherence to civilian immunity.

2) Contested sovereignty: How does R2P apply to Gaza? R2P applies to several entities all of whom contest sovereignty over Gaza. Because R2P is a condition of sovereignty, it stands to reason that aspiring sovereigns should exercise their responsibilities. In this case (a) Israel: until Gaza is fully sovereign, Israel must uphold the primary responsibility of the state to protect there, and it likewise has legal responsibilities to abide by IHL as an occupying power; (b) Palestinian Authority: as the principal aspiring sovereign, the PA has a responsibility to protect, and its sovereignty is conditioned on it fulfilling it; and (c) Hamas: as an aspiring legitimate belligerent, Hamas has the same responsibilities as the LTTE to uphold IHL. When considering Gaza, it should not be taken as a vacuum where no one bears responsibility to the population in accordance with R2P, rather everyone does.

3) “Absent” sovereignty: Somalia seems to be the clearest example where the state does not “function.” But despite its anarchy, there has always been a formal state of Somalia. If Somali state authorities are “manifestly failing” to protect (due to incapacity), the responsibility passes to the United Nations Security Council. In this case, the UNSC is working with the relevant regional organization—the African Union—to take, albeit scarcely effective, action.

As these examples hope to illustrate, R2P’s “statism” might look like a problem at first glance, but in fact this is not much of a problem at all. Locating responsibility is relatively straightforward. Less straightforward is (1) determining what manifest failure means, and (2) determining a course of action when a state is deemed to be manifestly failing. Again, if there are contradictions here, they seem to be in interpretations and expectations of what R2P means and entails for states and non-state actors, but nothing fundamental to the principle itself.

As a final note, it is also important to remember R2P is not a “tool” as such, but a principle. In this regard, R2P is neither “used” nor “invoked” as a humanitarian’s draw-card to rectify a course of action in a given situation, but a platform for encouraging or compelling states to faithfully uphold their sovereign responsibilities to all populations within their territorial domain. There are therefore no situations in which R2P is relevant because there is never a point at which it is irrelevant. R2P requires states to continually strive to build the requisite capacities, framework and institutions to protect and assist others to do the same. In cases where preventive measures fail and mass atrocity crimes are occurring or imminently forewarned, the R2P principle requires timely and decisive action. But this is no more “making use” of R2P than region-to-region learning, bilateral assistance and domestic reform geared at preventing the grave and deliberate abuse of vulnerable populations. R2P, in sum, represents a renewed and invigorated consensus to further entrench genocide and mass atrocity prevention in the institutions and practices of states, non-state actors, civil society organizations, regional bodies and the United Nations system.

October 7, 2009