Chapter 4: Collective Protection of Human Rights and World Politics

A Widening Security Understanding at the Close of the Twentieth Century

The devastation caused by the war and the mass atrocities that were committed, placed human rights at the top of the developmental agenda relating to international law in the immediate post-war period. In this regard, following the establishment of the United Nations (UN) in 1945, the Nuremberg and Tokyo trials set a precedent by prosecuting Nazi and Japanese war criminals who committed mass atrocities.

In 1948, two milestones took place a day apart. On 9 December 1948, the UN General Assembly adopted the “Convention on the Prevention and Punishment of the Crime of Genocide”, which codified the crime of genocide and became the earliest human rights treaty agreed by the UN General Assembly (UNOGPR2P, n.d.). The next day, the General Assembly ratified the “Universal Declaration of Human Rights” (UDHR).

While the UDHR was a soft law document lacking binding effect over the state parties, it led to the conclusion of the Twin Covenants —i.e. International Covenant on Civil and Political Rights, and International Covenant on Social, Economic and Cultural Rights— in 1966, which placed the notion of universal human rights in the realm of hard law.

The Cold War Years

The primary purpose of the UN is “to maintain international peace and security”.

To this end, the principles of sovereignty, equality and non-interference in the domestic affairs of states along with the prohibition of the threat and use of force were adopted as acting principles.

In the literature, there are three Cold War era cases that scholars refer to as precedents of contemporary understanding of humanitarian interventions wherein external military force was used to intervene in states experiencing mass violations of human rights. These are the cases of India’s intervention in East Pakistan in 1971, Vietnam’s intervention in Cambodia in 1978, and Tanzania’s intervention in Uganda in 1979.

In the 1980s, some states supported claims of so-called humanitarian interventions in the cases of the intervention of the United States (US) first in Granada in 1983 and then in Panama in 1989. While the use of military force by the US could not be condemned by the UN Security Council due to the US’s veto (in the case of Panama, the United Kingdom (UK) and France also cast veto), its claims to stop mass atrocities did not receive recognition from the international community, except for those states that intervened alongside the US.

The 1990s

In the post-Charter period with the developments taking place in the realm of human rights, such state-centric approach began to transform and was supplemented by additional security approaches, one of which is human security. In its 1994 Human Development Report, the UN Development Programme (UNDP) placed the focus on the people-centred approach of human security, and basically defined it as “freedom from fear and want” in relation to the main components of economic, food, health, environmental, personal, community and political security.

From Humanitarian Intervention to the Responsibility to Protect: A Conceptual Turn?

As Nicholas J. Wheeler (2000, 286) argues, “norms have clearly changed since the debates in the UN over India’s, Vietnam’s and Tanzania’s use of force in the 1970s, and Kofi Annan is right to believe that there is a ‘developing international norm’ in support of intervention. However, this normative change is subject to the very important caveat that the society of states shows little or no enthusiasm for legitimating acts of humanitarian intervention not authorized by the Security Council”. Hence, it can be observed that humanitarian crises of the late 20th century have brought to attention the tension between state sovereignty and collective protection of human rights.

In its report, the ICISS introduced the concept of the Responsibility to Protect, which is commonly abbreviated as “R2P” (and also as “RtoP” in the literature). The main aim of the Commission was to shift the terms of the debate from the existence of a “right to intervene” towards establishing a “responsibility to protect”. Especially in the post-Cold War era, pro-intervention states have interpreted humanitarian intervention as a “right to intervene”, which meant that they could intervene if and whenever they wanted.

Such approach is highly problematic from human security and international law perspectives. First, the acceptance of a right to intervene does not assure that there will be a timely response to mass atrocities. Second, from a legal perspective, the interveners are not obliged to obtain the Security Council’s authorisation as humanitarian interventions can be carried out by a variety of actors (such as but not limited to a willing state, a coalition of states, a regional and/or international organisation) without an obligation to acquire consent or authorisation.

Considering these problematic aspects, in order to be able to tackle the humanitarian challenges of the century, the ICISS aimed to change the terms of the debate from a right to a responsibility.

It is important to note that humanitarian interventions are different from other sorts of military interventions and aggression.

Developed on an understanding of pursuing humanitarian objectives, both humanitarian intervention and R2P tackle with the problem of grave violations of human rights.

Nevertheless, R2P as a conceptual whole is beyond a doctrine simply attempting to govern the act of humanitarian intervention. According to the proposition of the ICISS, R2P consists of three main components: the responsibility to prevent, the responsibility to react, and the responsibility to rebuild. To begin with, R2P is not only about halting mass atrocities. It primarily aims to prevent humanitarian crises from happening, whereas humanitarian intervention addresses the issue upon or after occurrence.

R2P is a framework that is built on the primary objective of prevention and the idea of early response, which are complemented by a notion of responsibility on the part of the international community in order to ensure that inaction and/or irresponsible action is/are not the rule but rather a rare exception.

The Responsibility to Protect Under the United Nations

At a time when the humanitarian crisis in Darfur was escalating, Kofi Annan took an initiative for R2P’s recognition as well as to ensure its implementation by introducing it in the 2004 “Report of the SecretaryGeneral’s High-level Panel on Threats, Challenges and Change” entitled “A More Secure World: our shared responsibility”. He introduced R2P in Part 3, under the title of “Collective Security and the Use of Force”, which focused on matters related to Chapter VII of the UN Charter and internal threats as well as R2P. In this part, Annan referred to the inefficiencies of the Security Council and noted that mass atrocity situations—which ought not to be shielded by the principle of noninterference in the domestic affairs—can well constitute a threat to international security. In this vein, he referred to R2P as an emerging norm that can be exercised under the Security Council in cases of mass atrocities and considered it as part of the collective security understanding.

A New Era in Collective Protection of Human Rights Under the UN?

Following Annan’s initial efforts for further clarification of what R2P is and why it should be embraced by the UN, a separate section was reserved for R2P in the World Summit Outcome Document of October 2005. The member states of the General Assembly voted for the adoption of the Document and unanimously accepted the responsibility to protect under Paragraphs 138 and 139.

Accordingly, at the state level sovereignty as responsibility understanding was embraced, while at the international level the international community was deemed responsible for the protection of populations when states are unable.

While R2P cannot be considered as a legal norm/rule, it is still possible to argue that it has found a place within the UN machinery as evinced by the references in Security Council resolutions.

Nevertheless, as the first test case that challenged the commitment made on paper to R2P, Darfur showed once again that inaction could prevail.

A Three Pillar Strategy for Implementing R2P

In the report, based on the consensus of 2005, Ban focused on devising a three-pillar strategy directed towards tackling issues related to R2P’s implementation.

With his report in 2009, Ban engaged the member states in the first dialogue on the practice of R2P. With emerging and ongoing humanitarian crises in the backdrop, the debates continued in the form of informal dialogues each year with the annual reports of the UN Secretary-General.

Collective Responsibilities and the Security Council as the Main Authority

While the clarification of its scope and measures helped to place R2P in the agenda of the General Assembly, as well as in the language of the Security Council resolutions, it has not been enough to clearly delineate it from humanitarian intervention, and thus to eliminate the concerns of several states about possible abuses of R2P.

Right after its unanimous adoption under Paragraphs 138 and 139, although its proponents have considered R2P an emerging legal norm, there has not been enough practical evidence to prove such optimistic assumption right.

Since 2005, various cases have put to test the limits of R2P’s implementation. Darfur being the first test case showed that the international community could still remain silent despite the grim experiences of the 1990s. There were also cases of misapplication of R2P, as in Russia’s claim to undertake its responsibility to protect in the case of South Ossetia in 2008. There were examples of successful implementation of the responsibility to prevent such as in the cases of Kenya and Guinea.

One basic observation that follows from the R2P practices of the Security Council in the aftermath of the adoption of the World Summit Outcome Document is that among the member states selectivity prevails over legal and humanitarian concerns, and the veto power of the permanent members of the UN hampers the adoption of early, timely and decisive action. Therefore, with each and every new unresolved crisis, we see that the question of UN reform, and specifically the Security Council, as well as the adoption of code of conduct arise as recurring themes of debate. From a legal point of view, it is important that R2P action is undertaken upon the authorisation of the Security Council so that the action is legitimated. However, from the perspective of implementation, the Security Council being the sole authority decreases the actual impact of R2P as a norm since the decision-making process of the Council is purely political and most often no decision can be taken due to the veto cast when the permanent members are motivated by their national interests in considering a specific case.