Our Continuing Struggle with Civilian Protection*
Within the last few decades, the international community has seen a growing number of intrastate conflicts, where the main target of violence is not an opposing army, but innocent civilians in the region.1 This shift has raised concerns among many, including the United Nations, about the need for the protection of civilians. As a result, an international commission was established in 2001 to address the growing need for the “internationalization of the human conscience.”2 No longer would the action or inaction of individual states suffice when it came to matters of the protection of civilians. In December of that same year, the International Commission on Intervention and State Sovereignty (ICISS) published their report, “The Responsibility to Protect” (commonly referred to as “R2P”). This report soon became the flagship of the international effort for civilian protection, and a principle that set forth guidelines for how states ought to respond to atrocities aimed at civilian populations.
The ICISS report asserts that sovereign states have the responsibility to protect their citizens from the crimes of genocide, ethnic cleansing, war crimes, and crimes against humanity. If states are unable or unwilling to do so, it becomes the responsibility of the international community to intervene on behalf of those citizens. The declaration was signed unanimously by 191 states as a part of the 2005 World Summit Outcome Document, a fact that emphasizes the broad acceptance of this principle.
The principle of R2P is divided into three main pillars: the Responsibility to Prevent, the Responsibility to Respond, and the Responsibility to Rebuild. With an international community perpetually hesitant to commit to prevention strategies, we too often find ourselves past the point of implementing such strategies effectively (the first pillar). This is a failure many are desperately striving to correct, but as is often the case progress is slow. As a result, conflicts regularly deteriorate to such a degree that states are forced to make decisions about military interventions (the second pillar). While the international community flounders in its attempts to implement the first two pillars, state-building and post-conflict aid are cast aside to be dealt with after the intervention is underway (the third pillar).
In the past two years, many have called for a military intervention in the Syrian civil war. Seeing the violence unfold in the state, our moral selves feel the pull to act. But there are serious questions as to whether a military intervention is a legitimate option. In instances like this, the international community must decide where to set the threshold for intervention into a sovereign state.
The ICISS maintains that such an invasive intervention must be launched only in what they deem “extreme cases.” As a part of their report, the ICISS laid out criteria for when military intervention on behalf of civilians is justified and legitimate. According to the ICISS, in order for a situation to warrant such an intrusive operation, the acts of violence must “so genuinely ‘shock the conscience of mankind,’ or ... present such a clear and present danger to international security, that they require coercive military intervention.”3 The six criteria for intervention include:
A complete understanding of each criterion is essential for progress in the realm of civilian protection. Each measure is unique, and each affects the action—or inaction—of states.
Right authority most commonly refers to approval through the United Nations Security Council (UNSC), which can be achieved through a formal request, raising the issue through a Security Council Initiative, or the Secretary General can raise it under Article 99 of the UN Charter.4 The recent intervention in Libya, though debated as most interventions are, was approved under UNSC Resolution 1973 in March 2011. While adopted under Chapter VII of the UN Charter, which allows for the use of force, Resolution 1973 specifically stated that a full foreign occupying force in Libya was not approved.
The only alternative to Security Council approval to intervene either in advance or ex post facto is the approval of a regional organization, such as the Organization of American States (OAS) or the Organization of the African Union (OAU).
There are, of course, instances when intervention can be seen as necessary, yet the Security Council is unable or unwilling to condone action, or the Council is taking too long with their deliberations. More specifically, there may be cases which—due to political or legal considerations—the Council cannot come to an agreement on the proper course of action. In cases such as these, those wanting to intervene have two options: calling for an emergency session of the General Assembly, or on the rare occasion where the need for intervention is so immediate that waiting for approval through the Security Council is not an option, action can be taken with the understanding that the intentions are legitimate enough for the Security Council to approve of the actions retroactively.
Such was the case in East Timor. In 1999, East Timorese held a referendum in which a clear majority of voters chose to declare independence from Indonesia. The supporters of the referendum were met with state-backed violence in which an estimated 1,400 civilians were killed. In this situation, the international community, led by Australia, took action to assist the citizens of East Timor prior to gaining proper authorization through the Security Council. Australia claimed that time was of the essence and waiting for approval would be detrimental to the lives of the people of East Timor. The actions of the Australian government were subsequently approved by the Security Council. Such circumstances are rare, but not beyond the realm of possibility.
Many have, of course, failed at such attempts. Most notably the U.S. as it tried to use R2P to justify its 2003 invasion of Iraq. Further, states that act alone are not thought to have the “right authority.” Multilateralism is key.
The first thing the ICISS makes clear about the just cause threshold is that any and all exceptions to the principle of non-intervention should be kept to a minimum. When at all possible, the principle should be upheld and the international community should find other appropriate ways to work toward protecting civilians at risk. According to the ICISS’s just cause threshold, there are only two situations in which overlooking the principle of non-intervention is seen as legitimate. The first is large-scale loss of life, either that which is already occurring, or that which is sure to occur in the future.5 In such situations there is no need to prove genocidal intent, only that this large scale loss of life is the result of either deliberate action or inaction by the state. The second situation that justifies military intervention is the actual or potential incidence of ethnic cleansing. According to the ICISS, if one or both of these situations is proven, just cause has been fulfilled and outside actors have the authority to intervene on behalf of the civilians.
The genocide in Darfur has become closely tied to the principle of R2P. The devastating violence occurring in the region became world news around the same time R2P was gaining traction. Labeled a genocide in 2004, with 200,000 dead and 2.5 million displaced at that point, the conflict easily fulfilled the just cause criterion. While the genocide label is not legally necessary to prove just cause, it was instrumental in garnering the political will and commitment of the international community. As a result, we saw the creation of the first United Nations and African Union hybrid mission, and the first attempt by the international community to address the ongoing violence in the Darfur region.
The question of Right Intention refers to the insistence that states intervening in the affairs of other states do so with the legitimate intention of protecting people, and not for any political gain of their own. Proving intentions is a complicated issue, as there is not always agreement as to what might constitute legitimate reasoning for intervention, nor a clear way of proving what a state’s actual intentions are. In simple terms, intervention is generally deemed to be legitimate if the intention of the intervening body is to prevent or stop massive human suffering. Included on the list of illegitimate or “wrong” intentions are the changing of borders, overthrowing of current regimes, or occupying a territory. The ICISS report offers a few safety measures for ensuring intervention is forged legitimately, including always intervening on a multilateral basis, as well as taking stock of public opinion in the state of potential intervention. If the people of the state do not believe outside help is needed, this opinion should be respected and taken into consideration by the international community. Going back to the U.S.-led invasion of Iraq: the action was replete with illegitimate intentions, from overthrow of the regime to the ultimate occupation of the territory. Hence the UNSC decision not to support the action under R2P.
According to the ICISS, military intervention must always be an action of last resort. Only when all other options have failed to prevent civilians from falling victim to the four major crimes—genocide, ethnic cleansing, war crimes, and crimes against humanity—should military intervention be used. This begins with what the report refers to as the “Responsibility to Prevent.” The commission holds prevention as the most important aspect of R2P, emphasizing the need for early warning and extensive prevention strategies. These prevention strategies begin at a structural level with root cause prevention, which attempts to address those structural factors embedded in a society that might lead to the eruption of violent conflict between interstate and intrastate groups. When root cause prevention strategies are ineffective, the shift is made toward direct cause prevention strategies. These strategies are not meant to address the same broad problems as root cause prevention, but rather those that are specifically instigating a particular situation.
Ultimately, direct cause prevention is a combination of on-the-ground, in-the-moment actions working to keep imminent violence at bay. Additionally, there are non-military methods of intervention put into place when prevention techniques are exhausted, prior to the last resort of military intervention. These include sanctions placed on those responsible for the violence or those who are not living up to their responsibility to curtail the violence. The sanctions can be economic, military, as well as diplomatic and political. Such sanctions were seen in the lead up to the Libyan intervention, and can clearly be seen in action directed at high-ranking officials in Sudan where, for example, many states do not allow President Omar al-Bashir to travel to their territory.6
When all else fails and military intervention is the chosen action, it is of vital importance to create a response that is relative to the situation at hand. Failure to abide by this criterion can lead to the problem of doing more harm than good. This is both in the realm of a response that is too robust, and one that is not strong enough. The 1994 genocide in Rwanda stands as a prime example of a situation where the intervention was not proportional to the needs at hand. In this case, the troop presence (initially just 270 men) was far too small, endangering the lives of the soldiers as well as being of little help to the hundreds of thousands of Rwandans who were slaughtered. Rwanda is sadly a perfect example of where the international community hesitantly committed to an intervention, but in their unwillingness to send the necessary troops and resources did little to protect civilians. The tragedy of Rwanda was recounted in Lieutenant-General Roméo A. Dallaire’s book Shake Hands with the Devil: The Failure of Humanity in Rwanda (Da Capo, 2004). Lt. Dallaire continues to educate the international community, hoping we can learn the lessons of Rwanda.
In contrast to the Rwandan intervention, the recent action in Libya is a prime example of where proportional means were used to protect civilians. With a combination of non-military intervention strategies, the establishment of a no-fly zone, and the cooperation of an assortment of states, the intervention was largely successful in protecting civilians who found themselves in the center of the violent conflict.
Finally, the last criterion is the idea that there should be a reasonable prospect of success. This is perhaps the most difficult criterion to come to terms with, as there are situations when civilians need protection, yet a positive outcome cannot be expected. It is in these moments that making decisions about what is and is not a legitimate reason for intervention become painful and strain society’s understanding of humanity. We must answer the question of whether we can successfully intervene and protect civilians without further igniting an already volatile situation. If states are wrong in their calculations, the risk falls to putting civilians in further harm as well as posing grave danger to the troops we send. In contrast, should states perpetually err on the side of non-intervention, innocent civilians will continue to die unnecessarily; they will wonder why their lives are not valued enough to protect.
Syria and the Future of Civilian Protection
There was a point in the midst of the violence in Syria where one could have argued each of these six R2P criteria were fulfilled, where military intervention was legitimate. While the UNSC and the P5+1 (UNSC members plus Germany) continue to fail to live up to their responsibility to protect Syrian civilians, a coalition of the willing could still have found ex post facto support for an intervention, thus fulfilling the right authority criterion. With the many reports of astronomical death tolls in the country and the use of chemical weapons, there was definitely just cause to intervene.7 Organized properly, right intention and proportional means could also have been achieved. Further, with various attempts from former Secretary General Kofi Annan and current Joint Special Representative to Syria Lakhdar Brahimi, in addition to sanctions and calls for a cease in the violence, we have surely reached last resort status. Yet, the international community has failed to act in a timely matter. There has been a failure to implement strong prevention strategies, and world leaders have delayed and been hesitant to implement robust non-military intervention strategies. This delay ensured the inability to fulfill the criterion of reasonable success, allowing this situation to spiral out of control until successful intervention verged on impossible. The devastating failure of the international community to protect civilians in Syria stands as a stark reminder that principles such as R2P remain simply principles, with no real consequences for states in the face of inaction.
It is crucial to understand that R2P was never intended to stand as international law—it was always meant to serve as a catalyst for the creation of laws. Similar to the Universal Declaration of Human Rights, the best outcome for R2P would be for treaties and conventions to be created as a result of the guidelines for protection it has set forth. Eight years after its inclusion in the World Summit Outcome Document, however, we are still merely dependent on the political will of states. As Ban Ki-moon reminded us, “the responsibility to protect is a concept, not yet a policy; an aspiration, not yet a reality.”8 When states fail to act in the face of atrocities, the international community laments the lack of political will, yet perpetually fails to open a dialogue on how to create enforceable norms.
We have come to a point where we must make an earnest commitment to the creation of international laws based on R2P. It is time to build on Francis Deng’s idea of sovereignty as responsibility, underscoring what that responsibility truly entails. As Deng reminds us, sovereignty is not a right of states but rather a responsibility of states.9 It was his contention that the legitimacy of states and thus their sovereignty was derived from their acceptance of this responsibility; opening the door to the idea states must live up to their responsibility in order to maintain their sovereignty. This understanding is the conceptual basis upon which R2P was built, and what we must keep in mind as we press forward.
Over the past few years we have seen movement on the creation of better early warning systems and better prevention strategies. Projects such as the Satellite Sentinel and the LRA Crisis Tracker highlight a growing focus on atrocity prevention. Additionally, we have seen the creation of projects such as President Barack Obama’s Atrocities Prevention Board; however these strategies have yet to be proven. It is important to further these efforts, continuing to push for their growth and success. Prevention of mass atrocities is the ideal we as an international community ought to be striving toward.
With that said, it would be naïve to assume we could simply perfect our atrocity prevention strategies without also focusing on atrocity response strategies. Those suffering in Syria and Sudan and around the world need the international community to get serious about moving toward real, actionable strategies for atrocity response. It is time to push beyond principles of civilian protection to the creation of treaties and charters that put a heavier burden on states to follow through on their promises and respond when atrocities are unfolding. It is time to create true obligation. Continuing to rely on R2P as a principle without the weight of international law behind it promises a long future of failure in the realm of civilian protection. We are sure to repeat our vicious cycle of public outrage over atrocities, followed by governments fumbling and delaying action until there is no longer any reasonable prospect of success.
From Principle to Policy
Creating an international charter outlining the responsibility of states to respond to mass atrocities is a goal we must start working toward. The fate of civilians in harm’s way can no longer be left to the political will of states. With the extensive regulation that already exists in relation to intervention in sovereign states, in addition to the criteria laid out within the Responsibility to Protect, this is a process we are ready to undertake. Beyond the potential for success, it stands as a necessary step for the international community.
As we look at the differing levels of atrocity response, regulating the use of military intervention as a matter of responsibility could serve as a first step in the process. This is not because it is more important than other forms of atrocity response, nor should it be our go-to response in the face of mass atrocities. Rather, the initial focus on military intervention is a matter of having the necessary tools already at our finger tips. The six criteria for legitimate intervention laid out in R2P are a clear starting point for a discussion on the regulation of responsibility.
The purpose of the regulation of military intervention is twofold. First, it clearly outlines the procedure for the use of military in the protection of civilians. The ICISS report is a great start, but it is incomplete. Room for a tangible method of response is made possible by pinpointing the different levels of military response from no-fly zones to full occupying forces and when each ought to be implemented. Further, military regulation ensures safety measures are in place to keep states from implementing military actions prematurely. Secondly, and more importantly, such control encourages those opposed to intervention to make a stronger commitment to prevention strategies. With the regulation of our responsibility to respond militarily, states would be motivated to ensure a military response is not required.
This regulation can serve as the catalyst for what is sure to be a long process toward the actualization of international law regulating states’ responsibility to protect. It is time to move R2P from principle to policy; to move the protection of civilians from should to must. Kofi Annan’s words continue to echo through the years, “What we seek to protect reflects what we value.” The international community can continue to proclaim “never again” in the face of devastating atrocities, but until we get serious about the creation of enforceable international law, these words insult the humanity of those who pay for our inaction with their lives.
*. Portions of this essay were originally published in my Master’s Thesis. They were edited and adapted for the purposes of this article. Corrie Hulse. “Shared Humanity: Protection and its Problems.” MA Thesis (University of Washington, Tacoma; 2010).
1. There has been discussion over the “civilianization” of conflict, where we see both a rise in civilians involved in battle as well as intentionally-targeted victims. Wenger and Mason claim that “battle deaths resulting from hostilities account for only about 10 percent of estimated total war deaths in many contemporary conflicts.” Andreas Wenger and Simon J.A. Mason. “The Civilianization of Armed Conflict: Trends and Implications,” International Review of the Red Cross (Vol 90, No.872: December, 2008).
2. International Commission on Intervention and State Sovereignty (ICISS). The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Center, 2001).
3. ICISS, 31.
4. United Nations. Charter of the United Nations (1/UNTS/XVI; October 24, 1945), Article 99 “The Secretary General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.”
5. The ICISS intentionally does not quantify “large-scale loss of life.” This stems from the desire to leave the option of “anticipatory action” available to those seeking to avert such a loss (ICISS, 33).
6. Many hoped that Nigeria would block Sudanese President Omar al Bashir from traveling to the country for the International AIDS Conference. If Nigeria had refused Bashir, this would not have been a travel ban under R2P, rather a matter of the International Criminal Court and the outstanding warrants it has issued for President Bashir.
7. The Syrian Observatory for Human Rights now places the death toll at 100,191 people.
8. Ban Ki-moon. Responsible Sovereignty: International Cooperation for a Changed World(July 15, 2008) Berlin address.
9. Francis Deng, et al. Sovereignty as Responsibility: Conflict Management in Africa (Washington DC: The Brookings Institution, 1996): 32-33.
Human Rights, Peace, R2P, Sudan, Syria, United Nations