By
Bakampa Brian Baryaguma
1.
About
the Responsibility to Protect
John Dryden
remarked that, ‘War is the trade of kings.’[1]
Hence, on
many occasions, the world’s kings led
it into horrible incidents of human sacrilege, where human life was
de-sanctified,[2] with
innocent civilians (and soldiers used as pawns) dying en masse.
In
order to save blameless populations from the scourge and horrendous effects of
war, leaders and scholars devised the doctrine of humanitarian intervention,[3]
at the heart of which lies the need to rescue our fellow human beings when they
face terrible ordeal or are suffering
serious harm, as a result of internal war, insurgency, repression or state failure, and especially if the concerned
state is unwilling or unable to halt or avert the suffering.
Therefore,
states considered it their right to
intervene in the domestic affairs of other states on humanitarian grounds,
for ‘purpose[s] of protecting or assisting people at
risk;’[4]
and a whole body of laws – international
humanitarian law[5]
– was developed to legitimize and entrench this right.
While
the doctrine registered great success, it nevertheless, had a chequered
history, marred by racist and imperial undertones,[6]
largely driven by the need to preserve state sovereignty: an ancient principle
of inter-state relations, which propounds that states are free to conduct their
internal affairs independently, without interference by other states.[7]
These challenges undermined the doctrine’s legitimacy and effectiveness.[8]
It needed rethinking and rebranding.
This
was achieved in 2001 with the shift from the right to intervene to the responsibility
to protect (hereinafter ‘R2P’),[9]
as, ‘... a unique and historic contribution to the way we think about state
sovereignty, the protection of civilians and the obligations of the
international community [growing] out of the world’s horror at the dreadful
series of mass atrocities that stained the conscience of humanity in the second
half of the twentieth century.’[10]
Gareth Evans says that, ‘At the heart of the responsibility to protect lies the
understanding that when horrible situations occur, they are everybody’s
business – not nobody’s business, as was the case before.’[11]
Thus, while
kings may go about their trade or
sport, this should not harm innocent mortals; for, ‘... we can hardly describe
killing fellow citizens, betraying friends and living without loyalty, mercy or
creed as signs of talent. Methods like that may bring you power, but not
glory.’[12]
This view underlies today’s global ethics; the observance and enforcement of
which R2P is meant to ensure.
2.
Beyond
R2P: Responsibility while Protecting
New
thought propounds that in exercising R2P, there should be responsibility while protecting.[13] That R2P
should be exercised within bounds of reason – not protectors doing as they may please.
3.
Developments
in the Democratic Republic of Congo (DRC) During the Last 20 Years
The DRC
has been long unstable. Its level of instability however, reached its height in
1996 when, ‘... a conflict began that has thus far cost the lives of over five million
people,’[14] for
almost 20 years now, with no projected end of it in sight.
Moreover,
there is an influx of rebel groups from neighbouring countries especially,
Rwanda and Uganda, settling there to establish bases from which to attack their
countries; and their countries launching counter-attacks against them – all in
addition to the DRC’s national and local malaise,[15]
which further complicates its war. This state of war threatens the stability of
the Congolese state itself, thus prompting its allied states to deploy their
armed forces on DRC territory, in a bid to bolster the state’s stability,
consequently leading to a long and complicated international conflict, shockingly
playing out in a single state’s territory.
4.
Application
of the Responsibility to Protect to Developments in the DRC
R2P
is meant to safeguard people from mass atrocity crimes,[16]
committed against innocent people for no other reason other than their race,
nationality, religion, caste or class,[17]
all of which are being committed in the DRC, for the same reasons. On this
account alone, R2P is thus relevant and applicable in the DRC war.
But
more pertinently, apparently the DRC government, on its own, is unable (or even
unwilling[18])
to stem the numerous conflicts that are raging on its territory. The rest of
the world must therefore, come in to assist the DRC state, because R2P not only
imposes protective obligations on national actors, but the international
community as a whole.[19]
Former UN
Secretary-General Kofi Annan provides sufficient justification for this view. According
to him, ‘R2P is a norm that helps us to protect populations, but governments
have responsibility in the first place to protect their own people; but it also
challenges us outside that country that we can no longer use sovereignty as an
excuse for doing nothing. It basically says some crimes are so shameful and
unacceptable that we cannot just stand back. We will need to get involved.’[20]
Clearly, when it comes to protecting innocent people from terrible situations, there
are no more exceptions.[21]
If
the powers that be in the DRC have failed to protect their citizens (and
clearly they have), the rest of the world has a duty to step in to protect the
wider population from the merchants of death and destruction.[22]
The world
must stand as one, doing all it can, exploiting all means at its disposal –
political, military, diplomatic,[23]
economic and social – to end the incessant conflicts in the DRC.
5.
Conclusion
The
paradigm shift under the responsibility
to protect and the responsibility
while protecting eras is abhorrent to Westphalian indifference, the post-UN
Charter institutionalized non-interference and the 1990s humanitarian intervention
consensus-free ideology.[24]
The rest of the world cannot afford to ignore horrible human suffering anywhere
on the globe. We are obliged to swiftly step in and restore peace and order in
the DRC’s complicated war, driven by a corrupt and ruthless system that plays
on people’s prejudices.[25]
We should join efforts to sort out the incessantly elusive ‘conceptual mess ...
a tragedy of war and poverty,’[26]
in the DRC.[27]
NOTES AND REFERENCES
[1] In his semi-opera, King Arthur (1691), jointly composed with Henry Purcell; quoted
at http://www.notable-quotes.com/w/war_quotes.html.
(Accessed on 24 December 2014, at 18:24hrs.)
[2] From openly blood
thirsty and dictatorial tyrants, to covertly macabre political and
administrative systems, and deadly petty rivalry between contending rulers, the
world has seen it all. World War II rendered human life utterly worthless and
marked the peak of human madness, as people took to ruthlessly butchering
themselves on European battle fields.
[3] According to the Annex to the letter dated 9 November 2011,
from the Permanent Representative of Brazil to the United Nations, addressed to
the Secretary-General, A/66/551–S/2011/701, ‘Responsibility while protecting: elements for the development and
promotion of a concept,’ at 2, voices in defence of this idea emerged in the
1980s.
[4] International Commission on Intervention and
State Sovereignty,
The Responsibility to
Protect (2001), at 9.
[5] According to Carolyn
Hamilton and Tabatha Abu El-Haj, ‘Armed Conflict: the Protection of Children
Under International Law,’ at 3, this is the branch of international law that
governs the conduct of war. Also known as the law of armed conflict, it sets
out the situations when one can lawfully go to war and what can be done
thereafter. Thus, Grac’a Machel, Impact of Armed Conflict on Children (1996),
at 49, says that, ‘... it limits the choice of means and methods of conducting
military operations and obliges belligerents to spare persons who do not, or
who no longer, participate in hostilities.’ (Available at https://www.essex.ac.uk/armedcon/story_id/000577.html,
accessed on 21-12-2014, at 18:13 hrs.)
[6] Hakan Altinay, in his introductory remarks to the Week 12 lecture on
‘Responsibility-to-Protect,’ in the Global Civics lecture series, of the Global
Civics Academy.
This imperialistic
trend and its negative consequences was explicitly highlighted in paragraph 9
of the Annex to the 2011 letter from
the Permanent Representative of Brazil to the United Nations, supra note 3, at 3, as follows: ‘...
attention must also be paid to the fact that the world today suffers the
painful consequences of interventions that have aggravated existing conflicts,
allowed terrorism to penetrate into places where it previously did not exist,
given rise to new cycles of violence and increased the vulnerability of
civilian populations.’
[7] State sovereignty is
a firmly entrenched phenomenon in international law and practice. In early
times, the Treaty of Westphalia, of
20 October 1648 (a peace Treaty made
between the Holy Roman Emperor and the King of France and their respective
allies), enshrined it in Article LXIV,
which, in a bid to prevent future differences, among others safeguarded the
parties’ ‘free
exercise of Territorial Right’ by guaranteeing non-molestation
of them by anybody, for any reason. Further, Article III of the Treaty forbade
parties thereto from assisting each other’s present and future enemies in form
of arms, money, soldiers, ammunitions or hosting the enemy troops on a Treaty
party’s territory. In
this Westphalian concept, sovereignty signifies the legal identity of a state
in international law, which provides order, stability and predictability in
international relations since sovereign states are regarded as equal,
regardless of comparative size or wealth. Gareth Evans, speaking
in his Week 12 lecture on
‘Responsibility-to-Protect,’ in the Global Civics lecture series, of the Global
Civics Academy, stated that the Treaty
of Westphalia institutionalized indifference.
In recent
times, the Charter of the United Nations of 26 June 1945, in
Article 2(1) thereof, recognizes state sovereignty, by guaranteeing the
sovereign equality of all states. The Charter entrenches sovereignty further in
Article 2(7) thereof, in a manner that Gareth Evans (speaking in the aforesaid
lecture), characterizes as ‘institutionalizing non-interference.’ This Article
stipulates that, ‘Nothing contained in the present Charter shall authorize the
United Nations to intervene in matters which are essentially within the
domestic jurisdiction of any state or shall require the Members to submit such
matters to settlement under the present Charter....’ Gareth Evans explains that,
‘Newly independent states rallied around this provision in their reluctance to
accept that any one (usually their former European colonialists and the United
States of America) had the right to forcibly intervene in their internal
affairs.’
The need to protect
state sovereignty generated most hostility towards humanitarian intervention.
External intervention was stiffly resisted by many national actors, to whom, in
most cases, in Gareth Evans’ words (speaking in the aforesaid lecture),
‘sovereignty was seen as a licence to kill. ... It was argued that internal
events, however horrendous, were none of the business of other states.’
Indeed, in his opening
remarks, the Convener of a dialogue with former United Nations
Secretary-General Kofi Annan, at the Centre for International Policy Studies,
Ottawa, observed that, ‘From the killing fields of Cambodia, to the genocide in
Rwanda; to the ethnic cleansing in the Balkans, time and again civilian
populations were victimized within states whose regimes targeted them or stood
by as others did so. When other nations spoke out against them or urged
intervention, they were met by the argument that the world has no business
interfering in the internal affairs of a nation-state; no matter how evil or
how murderous its leaders.’ See, ‘Kofi Annan, The Responsibility to Protect 10
Years On: Reflections on its Past, Present and Future.’ (Available at https://www.youtube.com/watch?v=ohzVUuUsn3g,
accessed on 22 November 2014, at 05:57 hrs).
[8] Kofi
A. Annan, ‘We the Peoples’ – the Role of
the United Nations in the 21st Century (2000), at 47-48, revealed
that, ‘Some critics were concerned that the concept of
“humanitarian intervention” could become a cover for gratuitous interference in the internal affairs of
sovereign states. Others felt that it might encourage secessionist movements
deliberately to provoke governments into committing gross violations of human rights in order to
trigger external interventions
that would aid their cause. Still others noted that there is little consistency in the practice of intervention, owing to its
inherent difficulties and costs as well as perceived national interests—except that weak states are far
more likely to be subjected to
it than strong ones.’ While Secretary-General Kofi Annan recognized both the force and the importance of
these arguments and also accepted that the principles of sovereignty and
non-interference offer vital protection to small and weak states (Ibid., at 48), he nevertheless
repudiated them due to the overriding need to protect vulnerable people. This
report is commonly known as the ‘Millennium Report.’
Thus, at the United Nations General Assembly in
1999, he made compelling pleas to the UN General Assembly to find
a way to get around the impediment of sovereignty stopping us at the borders
when we arrive to save lives in the face of mass atrocities. He tasked the international community to try to find, once and
for all, a new consensus on how to approach these issues – to forge unity
around the basic questions of principle and process involved. Secretary-General
Kofi
Annan repeated the call in his 2000 report, ‘We the Peoples’, wherein he posed the central question starkly and
directly to the critics: ‘... if humanitarian intervention is, indeed, an unacceptable assault on sovereignty,
how should we respond to a Rwanda, to a Srebrenica—to gross and systematic violations of human
rights that
offend every precept of our common humanity?’ (Ibid., at 48.) This question is commonly
referred to as the ‘Millennium Challenge.’)
[9] International Commission on Intervention and
State Sovereignty,
supra note 4, at 9
& 11. In order to drive the sovereignty-intervention debate forward, the
Commission, in its report, felt it helpful to embrace a rather larger language
change, and associated reconceptualization of the issues. It noted and observed
that,
It is important that language – and the concepts which lie behind particular choices of words – do not become a barrier to dealing with the real issues involved. Just as the Commission found that the expression “humanitarian intervention” did not help to carry the debate forward, so too do we believe that the language of past debates arguing for or against a “right to intervene” by one state on the territory of another state is outdated and unhelpful. We prefer to talk not of a “right to intervene” but of a “responsibility to protect.”
The Commission’s report has four innovations: first, presentational
– changing the language of the debate i.e. from right to intervene to responsibility
to protect, whereby the key thing is protection,
not intervention(Ibid., at 9 & 11); second, broadening the range of relevant
actors – state, non-state (including individuals and terrorist
organizations), and institutional actors, moreover with increasingly evident
interaction and interdependence among them (Ibid.,
at 3); third, broadening the range of responses – the responsibility to prevent (i.e. to address both the root causes
and direct causes of internal conflict and other man-made crises putting
populations at risk), the
responsibility to react (i.e. 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 (i.e. to provide, particularly after a military intervention,
full assistance with recovery, reconstruction and reconciliation, addressing
the causes of the harm the intervention was designed to halt or avert); and fourth, criteria for the use of force – (a) seriousness of
harm i.e. is the threatened harm of a kind and sufficiently clear and serious
to justify prima facie the use of
force? (b) proper purpose i.e. is it clear that the primary purpose of the
proposed military action is to halt or avert the threat in question, whatever
other purposes or motives may be involved? (c) last resort i.e. has every
non-military action for meeting the threat in question been explored with
reasonable grounds for believing that other measures will not succeed? (d)
proportional means i.e. are the scale, duration and intensity of the proposed
military action the minimum necessary to halt or avert the threat in question?
(e) balance of consequences i.e. is there a reasonable chance of the military
action being successful in meeting the threat in question, with the
consequences of action not likely to be worse than the consequences of
inaction? (e) right authority i.e. military action should be authorized a
legitimate and internationally trusted organ like the UN Security Council, and
(f) mutual operational principles i.e. (i) clear objectives, with
unambiguous mandate and matching resources, (ii) common military approach among
involved partners, including unity of command, clear and unequivocal
communications and chain of command, (iii) acceptance of limitations,
incrementalism and gradualism in the application of force, with the objective
being protection of a population, not defeat of a state, (iv) rules of
engagement which fit the operational concept that are precise, reflect the
principle of proportionality and involve total adherence to international
humanitarian law, (v) acceptance that force protection cannot become the
principal objective, and (vi) ensuring maximum possible coordination with
humanitarian organizations. (Ibid.,
at xii-xiii.)
[10] Opening remarks by
the Convener – See, ‘Kofi Annan, The Responsibility to Protect 10 Years On:
Reflections on its Past, Present and Future.’ (Available at https://www.youtube.com/watch?v=ohzVUuUsn3g,
accessed on 22 November 2014, at 05:57 hrs).
[11] Gareth Evans, in his Week 12 lecture on ‘Responsibility-to-Protect,’ in
the Global Civics lecture series, of the Global Civics Academy. (Available
at https://www.youtube.com/watch?v=oRiDsIbGojU,
accessed on 22 November 2014, at 00:30 hrs). This paradigm shift has changed
our understanding of the concept of sovereignty altogether: we now talk of responsible sovereignty, which David Krieger, Saul Mendlovitz and William Pace, ‘Introduction’, in Robert C.
Johansen (ed), A United Nations Emergency
Peace Service to Prevent Genocide and Crimes Against Humanity (2006), at
14, have said denotes, ‘... establishing the norm that if governments do not
protect their own citizens from gross violations of their rights, then the
rulers lose their sovereign immunity and the international community has a duty
to intervene for the purpose of protecting victims
against gross violations.’ (Emphasis in the original.) This is because every
government’s sovereign rights arise from an equally solemn responsibility to
protect the people it governs. Sovereignty is no longer about controlling
people, but protecting them from crises that put them at risk, such that what
matters is the people’s sovereignty, not the sovereign’s sovereignty.
[12] Niccolo Machiavelli, The Prince (1513), translated by Tim Parks (2009),
at 34.
[13] This school of
thought is led by Brazil, whose Permanent Representative
to the United Nations, Ambassador Maria Luiza Ribeiro Viotti, wrote a letter addressed to the UN Secretary-General, A/66/551–S/2011/701, dated 9 November 2011, ‘... expressing Brazil’s view that the
international community, as it exercises its responsibility to protect, must
demonstrate a high level of responsibility while protecting.’ In the Annex to
this letter, Brazil
offered justifications and guidelines for this proposed extra dimension to the
responsibility to protect, observing, in paragraphs 10 and 11 thereof, stating
as follows:
10. There is a growing perception that the concept of the responsibility to protect might be misused for purposes other than protecting civilians, such as regime change. This perception may make it even more difficult to attain the protection objectives pursued by the international community.11. As it exercises its responsibility to protect, the international community must show a great deal of responsibility while protecting. Both concepts should evolve together, based on an agreed set of fundamental principles, parameters and procedures, such as the following:(a) Just as in the medical sciences, prevention is always the best policy; it is the emphasis on preventive diplomacy that reduces the risk of armed conflict and the human costs associated with it;(b) The international community must be rigorous in its efforts to exhaust all peaceful means available in the protection of civilians under threat of violence, in line with the principles and purposes of the Charter and as embodied in the 2005 World Summit Outcome;(c) The use of force, including in the exercise of the responsibility to protect, must always be authorized by the Security Council, in accordance with Chapter VII of the Charter, or, in exceptional circumstances, by the General Assembly, in line with its resolution 377 (V);(d) The authorization for the use of force must be limited in its legal, operational and temporal elements and the scope of military action must abide by the letter and the spirit of the mandate conferred by the Security Council or the General Assembly, and be carried out in strict conformity with international law, in particular international humanitarian law and the international law of armed conflict;(e) The use of force must produce as little violence and instability as possible and under no circumstance can it generate more harm than it was authorized to prevent;(f) In the event that the use of force is contemplated, action must be judicious, proportionate and limited to the objectives established by the Security Council;...(i) The Security Council must ensure the accountability of those to whom authority is granted to resort to force.
Brazil’s
view originated from the controversies surrounding the military activities of
the North Atlantic Treaty Organization (NATO) in Libya, following the political
crisis in that country, which eventually deposed the country’s long serving
dictator, Colonel Muammar Gaddafi. Briefly, when a significant section of Libyans
rose up in protest against Gaddafi’s leadership in early 2011, he (Gaddafi) called
them rats and cockroaches, threatening to exterminate them – and actually took
repressive measures to do so. On 26
February 2011,
the UN Security Council disapproved of Gaddafi’s conduct and called for
humanitarian assistance to Libyans by passing Resolution 1970 (2011) that condemned abuse of
the protestors’ human rights, imposed travel sanctions and asset freezes on him,
his family members and selected members of his government, placed an arms
embargo on Libya and referred the Libyan situation to the prosecutor of the International
Criminal Court (ICC) for investigation and accountability purposes.
Nevertheless, the
conflict did not subside and human rights abuses continued. Hence, on 17 March 2011, the Security Council adopted another
resolution – Resolution 1973 (2011) – authorizing
UN member states, working in conjunction with the Secretary-General, ‘to take all
necessary measures’ to protect civilians. NATO (led by Britain, France and the
United States of America) decided to implement this mandate, bombing Libyan air
defences and other key military installations. It also covertly engineered and
facilitated regime change in Libya by overthrowing the regime of Colonel
Muammar Gaddafi, in the guise of taking
all necessary measures – a highly controversial move that was criticized by
many states and people, including Brazil, which wrote the letter of 9 November
2011 and its Annex.
[14] Jason K. Stearns, Dancing in the Glory of Monsters: The Collapse of the Congo and the
Great War of Africa
(2011). Stearns’
research and study of the DRC conflict, as reported in this book, revealed that,
Most of the killing and rape have been carried out at short range, often with hatchets, knives, and machetes. It is difficult not to attribute personal responsibility to the killers and leaders of the wars.It is not, however, helpful to personalize the evil and suggest that somehow those involved in the war harbored a superhuman capacity for evil. It is more useful to ask what political system produced this kind of violence. ... [trying] to see the conflict through the eyes of its protagonists and understand why war made more sense than peace, why the regional political elites seem to be so rich in opportunism and so lacking in virtue.
He submits therefore,
that,
The Congolese war must be put among the other great human cataclysms of our time: the World Wars, the Great Leap Forward in China, the Rwandan and Cambodian genocides. And yet, despite its epic proportions, the war has received little sustained attention from the rest of the world. The mortality figures are so immense that they become absurd, almost meaningless. From the outside, the war seems to possess no overarching narrative or ideology to explain it, no easy tribal conflict or socialist revolution to use as a peg in a news piece. In Cambodia, there was the despotic Khmer Rouge; in Rwanda one could cast the genocidal Hutu militias as the villains. In the Congo these roles are more difficult to fill. There is no Hitler, Mussolini, or Stalin. Instead it is a war of the ordinary person, with many combatants unknown and unnamed, who fight for complex reasons that are difficult to distill in a few sentences.... The conflict is a conceptual mess that eludes simple definition, with many interlocking narrative strands.’ Ibid.
[15] This situation, as
was described to Jason K.
Stearns, ibid., has relegated the DRC
to the humiliating and unenviable position of, ‘...
of being “the doormat of Central Africa, on which visiting armies clean their
shoes....”’
[16] Like murder, rape and
starvation of people. These are crimes against humanity that were recognized by
the widely endorsed Nuremberg Charter
of 1945 that also made clear that all persons are subject to international law,
regardless of the laws of their state and that no person, even heads of state
and government, stands above international law. Today, no one
is allowed to commit
genocide, crimes against humanity, or war crimes
with impunity.
[17] Gareth Evans, supra note 11.
[18] Jason K. Stearns, supra note 14, believes that the DRC state
and particularly President, ‘Joseph Kabila ... is wary about
creating a strong rule of law that could tie his hands. Even the violence in the
Kivus region, which continues until today, has not prompted major reforms in
his army or police; he has preferred to co-opt dissent rather than to promote
an impartial, disciplined security service. And instead of business elites
demanding greater accountability and less corruption from the government, they
are often themselves dependent on patronage from Kinshasa.’
[19]
Fortunately, the world is committed to this objective in principle, as
demonstrated in paragraphs 138 and 139 of the 2005 World Summit Outcome (General Assembly resolution 60/1), wherein
the Heads of State and Government, after long and intense negotiations,
resolved, declared and pledged their national and international obligations in
protecting vulnerable populations, in
the following terms:
Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.
The
invocation of Chapters VI and VIII of the UN Charter in this resolution means
that the international community is empowered to resort to armed force in
exercise of its responsibility to protect. But this should not be misconstrued
to be a blanket measure, because according to paragraph 5 of the Annex to the 2011 letter, from the Permanent
Representative of Brazil to the United Nations, supra note 3, at 2,
In addition to recognizing that each individual State has the primary responsibility for protecting its own population, the 2005 World Summit Outcome placed limitations on the use of force by the international community in the exercise of its responsibility to protect: (a) material (genocide, war crimes, ethnic cleansing and crimes against humanity); (b) temporal (upon the manifest failure of the individual State to exercise its responsibility to protect and upon the exhaustion of all peaceful means); and (c) formal (through the Security Council, in accordance with Chapters VI and VII of the Charter and on the basis of a case-by-case evaluation).
The reason for this fetter is stated in paragraph
7 of the Annex to the letter – ‘Even
when warranted on the grounds of justice, legality and legitimacy, military
action results in high human and material costs. That is why it is imperative
to always value, pursue and exhaust all diplomatic solutions to any given
conflict. As a measure of last resort by the international community in the
exercise of its responsibility to protect, the use of force must then be
preceded by a comprehensive and judicious analysis of the possible consequences
of military action on a case-by-case basis.’
[21] But systems must be
put in place for the international community to fully implement its protective
role. To this end, calls have been made, particularly in Robert C. Johansen
(ed), A United Nations Emergency Peace
Service to Prevent Genocide and Crimes Against Humanity (2006), for the
establishment of, ‘... a standing rapid deployment force or, as it is called in
this book, an Emergency Peace Service,’ as stated by, Sir Brian Urquhart, in
the preface to this booklet, at
8. Sir Urquhart reasoned, at page 9 thereof, that, ‘A standing emergency peace
service would certainly increase the Security Council’s capacity to react
quickly and effectively in an emergency, rather than go through the pedestrian
and often untimely and unsatisfactory process of setting up a traditional
peacekeeping force.’
In their introduction
to the book, David Krieger, Saul Mendlovitz and William Pace,
decried violent outbreaks that have plagued human civilization and continue to do
so, albeit without being halted in time to save innocent people from, ‘...
threats to their dignity, their homes, and their lives’ (see page 11 thereof), due to lack of capacity to do so, which would otherwise have been
prevented by, ‘... quickly send[ing] a professional security force to enforce
the law in humanitarian crises, such as should have happened in Rwanda in 1994.’
See, ibid. They confidently recommend
that, ‘To stop genocide and crimes against humanity, the next logical and essential
step is the creation of a United Nations Emergency Peace Service (UNEPS), a
small, highly mobile standing United Nations rapid deployment capability that
could be the first responder to potential cases of genocide and crimes against
humanity.’ See, ibid., at 12.
In the Executive Summary to
the book, Robert C. Johansen, ibid.,
at 21, said that UNEPS, to be designed to complement – not replace – other
essential national, regional, and United Nations efforts, will, ‘... ensure
that the next preventable humanitarian disaster will not occur.’
I totally agree with
calls and proposals for a permanent and professional United Nations peace and security
keeping service. Its establishment is long overdue. Robert
C. Johansen, ibid., at 26 & 28, proposes
that the peace and security service should encompass, ‘12,000 to 15,000
civilian, police, judicial, military, and relief professionals,’ deployable by either
the Security Council, the General Assembly, regional international
organizations, or the Secretary-General. For my part however, I suggest definitively
that it should be at least one million (1,000,000) strong, under the direct command
of the UN Secretary-General, with the Security Council playing a role similar
to that of national army high commands of advising the Commander-in-Chief on
strategic military matters. This is because the force should be strong enough
to address the rising number of conflicts globally on its own and it should not
be bogged down by bureaucratic bottlenecks that are likely to haunt the
Security Council with its veto handicaps and the General Assembly or
alternatively regional international organizations, with their long and
intense negotiations, in utter contravention of conventional military practice
of clear command and control.
Unfortunately, this
brilliant idea will most likely face stiff resistance especially, from powerful
states that are afraid of losing their global power and influence to the UN, fearing
it will turn into a super state. But as Sir Brian Urquhart, writing in his
preface to this booklet (page 10 thereof) rightly said, in the face of such several
anticipated objections to this idea, ‘... there
is one overwhelming argument for it. It is
desperately needed, and it is needed as soon as possible.’ (Emphasis in the original.)
[22] The obligation to
protect vulnerable populations from the horrors of conflicts is a shared duty between
states and the international community; for according to paragraph 4 of the Annex to the 2011 letter, from the Permanent
Representative of Brazil to the United Nations, supra note 3, at 2,
The concept of the responsibility to protect is structured in three pillars. The first pillar identifies the State as the primary bearer of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. The second pillar stresses the role of the international community in providing cooperation and assistance to allow States to develop local capacities that will enable them to discharge that responsibility. The third pillar, which applies to exceptional circumstances and when measures provided for in the first and second pillars have manifestly failed, allows for the international community to resort to collective action, in accordance with the norms and procedures established in the Charter.
Paragraph 6 of the
Annex clarifies that,
The three pillars must follow a strict line of political subordination and chronological sequencing. In this sequencing, it is essential to distinguish between collective responsibility, which can be fully exercised through non-coercive measures, and collective security. Going beyond the exercise of collective responsibility and resorting to mechanisms in the domain of collective security implies that a specific situation of violence or threat of violence against civilians should be characterized as a threat to international peace and security. Needless to say, it is necessary to clearly differentiate between military and non-military coercion, with a view to avoiding the precipitous use of force.
[23] Kofi
A. Annan, supra note 8, at 47,
restated that intervention (and by extension R2P and RwP) embraced
a wide continuum of responses, including diplomacy.
This view
was confirmed by former Canadian Foreign Minister Lloyd Axworthy, speaking in
the dialogue with Kofi Annan, supra
note 18, in which he was a panellist, clarified that, ‘R2P is not exclusively
military intervention. It involves diplomacy.’ In his capacity as Foreign
Minister, Lloyd Axworthy is the one who responded to Kofi Annan’s impassioned
plea in 1999 and again in 2000 (see, supra,
note 8), to find a way to get around the impediment of sovereignty stopping us
at the borders when we arrive to save lives in the face of mass atrocities, by
announcing that Canada would establish an international commission to inquire
into the matter. His announcement led to the formation of the International Commission
on Intervention and State Sovereignty, which wrote the 2011 report entitled, The
Responsibility to Protect, leading to
the birth of R2P as understood today.
[24] The 1990s marked the
emergence of brutal conflicts, including genocide, in many parts of the world
(notably Rwanda – where about 800,000 people died in the space of 100 days of
mass killing between April and July 1994, Bosnia, Somalia and Kosovo), which
even led to state collapse and failures (for example, Somalia has been without
effective governance since 1991). Yet as these carnages went on, the rest of
the world was lost on and devoid of consensus on how to stop the conflicts. For
instance, the rest of the world, including the United Nations, remained
disunited for the duration of the Rwandan genocide, bickering over money and
troop command, as people died en masse! In all these instances, ideological
differences took the better part of the day and prevailed, such that the
responsible actors ended up consensus-free on the way forward.
This consensus-free ideology
went on up to the early 2000s, until November 2003, when
former UN
Secretary-General Kofi Annan, ‘... alarmed by the lack of
agreement among Member States on the proper role of the United Nations in
providing collective security — or even on the nature of the most compelling
threats that we face ....’ set up a High-level Panel on Threats, Challenges and
Change to articulate a vision of collective security and seek global consensus
on matters of security issues. (See, Report
of the Secretary-General, In Larger
Freedom: Towards Development, Security and Human Rights for All (2005), at
24.) At pages 24-25 of his report, Kofi Annan observed, among others, that, ‘The threats to peace and security in the
twenty-first century include not just international war and conflict but civil
violence, organized crime, terrorism and weapons of mass destruction.’
The Secretary-General’s High-level Panel delivered its report, entitled A More Secure World: Our Shared Responsibility,
in December 2004, in which it noted that, ‘Today, more than ever before,
threats are interrelated and a threat to one is a threat to all. The mutual
vulnerability of weak and strong has never been clearer.’ (Ibid., at 14.) And further, that, ‘No State, no matter how
powerful, can by its own efforts alone make itself invulnerable to today’s
threats. Every State requires the cooperation of other States to make itself
secure. It is in every State’s interest, accordingly, to cooperate with other
States to address their most pressing threats, because doing so will maximize
the chances of reciprocal cooperation to address its own threat priorities.’ (Ibid., at 16.) In light of our shared
vulnerability to global security threats and the need to address it, the Panel
therefore, appealed for states’ responsibility in exercise of their sovereignty,
but most importantly, for international cooperation in so doing. In its words,
it said that:
In signing the Charter of the United Nations, States not only benefit from the privileges of sovereignty but also accept its responsibilities. Whatever perceptions may have prevailed when the Westphalian system first gave rise to the notion of State sovereignty, today it clearly carries with it the obligation of a State to protect the welfare of its own peoples and meet its obligations to the wider international community. But history teaches us all too clearly that it cannot be assumed that every State will always be able, or willing, to meet its responsibilities to protect its own people and avoid harming its neighbours. And in those circumstances, the principles of collective security mean that some portion of those responsibilities should be taken up by the international community, acting in accordance with the Charter of the United Nations and the Universal Declaration of Human Rights, to help build the necessary capacity or supply the necessary protection, as the case may be. (Ibid., at 17.)
The consensus-free
ideology in the face of adversity was further regretted in paragraph 8 of the Annex to the 2011 letter, from the Permanent
Representative of Brazil to the United Nations, supra note 3, at 3, stating that, ‘Violence against civilian
populations must be repudiated wherever it takes place. The 1990s left us with
a bitter reminder of the tragic human and political cost of the international
community’s failure to act in a timely manner to prevent violence on the scale
of that observed in Rwanda. There may be situations in which the international
community might contemplate military action to prevent humanitarian
catastrophes.’
It is no wonder therefore, that African states, led by South Africa,
pushed the view (during studies leading to the Report of the International Commission on Intervention and
State Sovereignty,
supra note 4) that, ‘The sin of indifference to mass atrocity crimes was worse than
the sin of intervention;’ as quoted by Gareth Evans, supra note 11.
[25] As found by Jason K. Stearns, supra note 14. He found further that,
‘... it is unlikely that the Congo wars will forge a strong
state. As these pages have made clear, the story of the Congo wars is one of
state weakness and failure, which has made possible the ceaseless proliferation
of insurgent groups, still numbering around twenty-nine in late 2010. These
armed groups fight brutal insurgencies and counterinsurgencies that, as the
United States discovered in Vietnam and Iraq, are not so much about controlling
territory as about controlling civilians, who are brutalized in order to obtain
resources and as retaliation for attacks by their rivals.’ I agree that this is
a major cause of the perpetual war in the DRC.
However, I believe that there is a hidden and subtle driver
of the DRC war – one still un-investigated and urgently in need of due
attention: the push for Tutsi hegemony in the region flamed by the regimes in
Rwanda and Uganda, the leaders of which seem to be yearning and pushing for the
establishment of another Tutsi dominated state in Eastern DRC: one that is not
only politically dominant (as in Rwanda today, where ironically 85% of the
population are Hutus), but numerically dominant too. To achieve this, Eastern
DRC must be kept ungovernable so that it is split from the wider DRC like was
done with the case of South Sudan that was curved from the mother Sudan. When
this happens, the Tutsi (who, by-the-way, are very nice people) will dominate
the new state. For now, sufficient ground work must be laid by undermining the
authority of the DRC government in the state’s east and repulsing or
neutralizing non-Tutsi ethnicities living there. This is an issue that the
international community needs to pay attention to, in its search for solutions
to the DRC’s simmering conflicts.
[26] As described by Jason K. Stearns, ibid. He made an impassioned appeal to
the international community of donors to help solve the DRC crisis, through
wide ranging policy shifts, including rethinking their aid strategy of just
paving roads, building hospitals and reforming fiscal systems, as this alone
simply takes away pressure from the government authorities to improve service
delivery. ‘But why should we help at all?’ he asks; and recommends, ibid., that,
First, because it is not just an act of joint humanity. We owe it to the Congolese. Most obviously because of the centuries of slavery, colonialism, and exploitation of rubber, copper, and diamonds, which benefited western companies and helped build Belgian cities. Those past injustices should be reason enough for feeling a moral debt toward the country....Second, we should give Congolese an opportunity to decide on how to deal with their violent past. A key fallacy of international engagement has been the idea that justice is an impediment to peace in the region. Time and time again, diplomats have actively shied away from creating an international court to prosecute those responsible for the many atrocities committed during the war. One of the most disheartening moments in my research, repeated countless times, was hearing survivors explain that they didn’t have anything to help them address their loss – the killers hadn’t been brought to justice, and often they didn’t even know where their loved ones were buried. The Congo is something of an outlier in this sense: Sierra Leone, Kosovo, East Timor, Rwanda, and the former Yugoslavia have all had tribunals to deal with the past. Yet in the Congo, where many of the perpetrators are still in power, the victims are left to stew in their frustration.It is precisely because many former warlords are still in power that diplomats have been wary of launching prosecutions. This has resulted in an army and government replete with criminals who have little deterrent to keep them from resorting to violence again. At the time of this writing, in October 2010, the United Nations released a report summarizing the most egregious war crimes committed in the country between 1993 and 2003 and recommending that a special court be established. This time, donors and the Congolese government must seize the opportunity. This is not to say that we should impose an international tribunal on the Congo; it may not be the best solution. But the Congolese people should be given the chance to know some of the truth of what happened during the war and to hold accountable those responsible.
Stearns opined that,
In large part, however, our sins have been of omission. We simply do not care enough. Contrary to what some Congolese believe, President Obama does not wake up to a security briefing on the Congo with his morning scone. Generally, we do not care about a strange war fought by black people somewhere in the middle of Africa. This sad hypocrisy is easy to see—NATO sent 50,000 troops from some of the best armies to Kosovo in 1999, a country one-fifth the size of South Kivu. In the Congo, the UN peacekeeping mission plateaued at 20,000 troops, mostly from South Asia, ill-equipped and with little will to carry out risky military operations. In exchange, the Congo has received plentiful humanitarian aid—a short-term solution to a big problem.This apathy has allowed simplistic notions to dominate policy toward the region. This was most evident in dealing with Uganda and Rwanda.... We cannot do peacemaking on the cheap, with few diplomats and no resources. It will not only fail but also lead to simplistic policies that can do more harm than good.
[27] But
Edward N. Luttwak, ‘Give War a Chance’,
78 FA (1999) 4, at 36, would not
agree to suggestions for intervention in the DRC’s or any other conflict. In
this short masterpiece essay, Luttwak theorizes that war is important because it eventually transforms into
peace. He makes a very logical, authoritative and convincing case against
intervention in other people’s wars. I propose to quote extensively from his
work, for I cannot make his case any better than he does.
Luttwak begins by castigating premature peacemaking.
He says that, ‘AN UNPLEASANT truth often overlooked is that although war is a
great evil, it does have a great virtue: it can resolve political conflicts and
lead to peace. This can happen when all belligerents become exhausted or when
one wins decisively. Either way the key is that the fighting must continue
until a resolution is reached. War brings peace only after passing a culminating
phase of violence. Hopes of military success must fade for accommodation to
become more attractive than further combat.’ (Ibid., at 36.) He accuses
the UN and its great-power politics as enshrined in the Security Council, of
failing to allow wars among lesser powers to run their natural course, instead
interrupting them, ‘... early on, before they could burn themselves out and
establish the preconditions for a lasting settlement,’ (ibid., at 36) by imposing ceasefires and armistices, which, ‘...
tends to arrest war-induced exhaustion and lets belligerents reconstitute and
rearm their forces. It intensifies and prolongs the struggle once the
cease-fire ends – and it does usually end;’ (ibid., at 36) such that, ‘Each time, the opponents used the pause
to recruit, train, and equip additional forces for further combat, prolonging
the war and widening the scope of its killing and destruction.’ (Ibid., at 37.) He therefore, submits
that, ‘It might be best for all parties to let minor wars burn themselves out.’
(Ibid., at 37.)
Luttwak
says that there is a problem of peacekeepers:
TODAY CEASE-FIRES and armistices are imposed on lesser powers by multilateral agreement – not to avoid great-power competition but for essentially disinterested and indeed frivolous motives, such as television audiences’ revulsion at harrowing scenes of war. But this, perversely, can systematically prevent the transformation of war into peace. The Dayton accords are typical of the genre: they have condemned Bosnia to remain divided into three rival armed camps, with combat suspended momentarily but a state of hostility prolonged indefinitely. Since no side is threatened by defeat and loss, none has a sufficient incentive to negotiate a lasting settlement; because no path to peace is even visible, the dominant priority is to prepare for future war rather than to reconstruct devastated economies and ravaged societies. Uninterrupted war would certainly have caused further suffering and led to an unjust outcome from one perspective or another, but it would also have led to a more stable situation that would have let the postwar era truly begin. Peace takes hold only when war is truly over.A variety of multilateral organizations now make it their business to intervene in other peoples’ wars. The defining characteristic of these entities is that they insert themselves in war situations while refusing to engage in combat. In the long run this only adds to the damage. If the United Nations helped the strong defeat the weak faster and more decisively, it would actually enhance the peacemaking potential of war. But the first priority of U.N. peacekeeping contingents is to avoid casualties among their own personnel. Unit commanders therefore habitually appease the locally stronger force, accepting its dictates and tolerating its abuses. This appeasement is not strategically purposeful, as siding with the stronger power overall would be; rather, it merely reflects the determination of each U.N. unit to avoid confrontation. The final result is to prevent the emergence of a coherent outcome, which requires an imbalance of strength sufficient to end the fighting.Peacekeepers chary of violence are also unable to effectively protect civilians who are caught up in the fighting or deliberately attacked. At best, U.N. peacekeeping forces have been passive spectators to outrages and massacres, as in Bosnia and Rwanda; at worst, they collaborate with it....The very presence of U.N. forces, meanwhile, inhibits the normal remedy of endangered civilians, which is to escape from the combat zone. Deluded into thinking that they will be protected, civilians in danger remain in place until it is too late to flee. (Ibid., at 37-38; emphasis in the original.)
Luttwak
condemns refugee nations that humanitarian intervention creates. In reference
to the DRC conflict and its bearing on the situation in Rwanda, he condemns the
refugee camps that are shielding the Hutu rebels from defeat by the Rwandan
government, thereby perpetuating political instability and uncertainty in Rwanda.
He says that, ‘Among many examples, the huge refugee camps along the Democratic
Republic of Congo’s border with Rwanda stand out. They sustain a Hutu nation
that would otherwise have been dispersed, making the consolidation of Rwanda
impossible and providing a base for radicals to launch more Tutsi-killing raids
across the border. Humanitarian intervention has worsened the chances of a
stable, long-term resolution of the tensions in Rwanda.’ (Ibid., at 43).
Luttwak
concludes his essay with an appeal to make war in order to make peace, arguing that,
TOO MANY wars nowadays become endemic conflicts that never end because the transformative effects of both decisive victory and exhaustion are blocked by outside intervention. Unlike the ancient problem of war, however, the compounding of its evils by disinterested interventions is a new malpractice that could be curtailed. Policy elites should actively resist the emotional impulse to intervene in other peoples’ wars – not because they are indifferent to human suffering but precisely because they care about it and want to facilitate the advent of peace. ... Underlying these seemingly perverse measures would be a true appreciation of war’s paradoxical logic and a commitment to let it serve its sole useful function: to bring peace. (Ibid., at 44.)
Luttwak’s work is as compelling as it is interesting
in its analysis of the problem at hand. It is interesting because it
gives the researcher or reader, another perspective to what is ordinarily
considered the right thing to do – peacemaking,
by preventing people from fighting; it is compelling because it provides an
alternative to the ordinarily right
thing to do – non-interference. Luttwak’s
theory is highly commendable for its logical and factual analysis of the
fallacy underlying humanitarian intervention and now the sister doctrines of responsibility to protect and responsibility while protecting.
It
should be noted that European states were formerly strong military machines with
several long lasting wars especially, in the 17th century (notably the
Thirty Years War of 1618-1648 in the Holy Roman Empire,
and the Eighty Years War of 1568-1648 between Spain
and the Dutch Republic, which led to the peace Treaty of Westphalia), the Napoleonic
era (1789-1815), up to the world wars of the 20th century, but
because these states had the opportunity, as Luttwak says, to fight their wars
to the point of either defeat of weak belligerents or mutual exhaustion of the
contending forces, which necessitated peaceful settlements, these states today
are strong and stable democratic machines. So is the United States of America
which had the opportunity of fighting its Civil War of 1861-1865, to its
logical conclusion.
On
the contrary, however, many states in the world today are fragile and politically
unstable, precisely because they have not had the opportunity of enjoying the
benefits of peace resulting from war experience. Repeated interventions from
Europe and America have thwarted this. Moreover, colonialism hindered the
natural process of state formation in most African and Asian states, resulting
in the formation of artificial states that are almost impossible to build.
The different
experience of European states on the one hand and African and Asian states on
the other, serves to vindicate Luttwak’s theory that wars should be left to
thrive for peace to come. For instance, we find that in countries where wars
were fought conclusively like in Uganda (1981-1986) and Rwanda (1994), there is
durable peace.
In
light of these sharply contrasting views – R2P and RwP that impose obligations
on the international community to protect vulnerable populations and Luttwak’s
equally compelling theory of non-intervention – it seems necessary to find a
middle ground. To my mind, while future interventions should definitely aim at
protecting innocent people from the horrors of conflicts, they should also
endeavour to bring those conflicts to absolute finality, by supporting one side
against the other, if need be, like the African Union troops are doing in
Somalia by fighting alongside the Somali government, to defeat and vanquish its
opponents, the Al-Shabab militants. This way, lasting peace will be achieved.
For
avoidance of doubt however, I must re-affirm my faith in the viability and
efficacy of the responsibility to protect.
Adopting the words of Gareth Evans, supra
note 11, ‘There are bound to be acute frustrations, some disappointments and
occasions for despair along the way, but they shouldn’t for a moment lead us to
conclude that the whole responsibility to protect enterprise has been
misconceived. There is effectively universal consensus now about the basic
principles of the responsibility to protect.’
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