The term ‘Responsibility to Protect’ (R2P) has been defined by Kiszti (2012), Garrigues, (2007) Scanlon et al., (2007), Luck (2008) and Burke (2009) as the obligation to protect citizens from mass violence and suffering, genocide, war crimes, ethnic cleansing and crimes against humanity and to provide a framework for humanitarian intervention in restricted circumstances, rather than to create an alternative framework for human rights protection.
The five main documents in which the R2P has been articulated are the High Level Panel’s
“Report on Threats, Challenges and Change”; the Secretary-General’s Report “In Larger Freedom”; the Outcome Document of the World Summit of 2005; UN Security Council Resolution 1674; and the UN Secretary-General’s Report on “Implementing the Responsibility to Protect” (Office of the President of General Assembly, 2009).
While all these documents seek to ensure that the international community plays a collective part in the protection of civilian populations in conflict-affected areas around the world, none of them can be considered a source of binding international law in terms of Article 38 of the Statue of the International Court of Justice (ICJ), which lists the classic sources of international law. Thus, theR2P has become part of the enduring acrimony between the intervened and the intervening state. According to Burke (2009) one of the perennial issues
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confronting the international community is the degree to which that community is responsible for the protection of civilians during humanitarian crises.
According to the UN Human Rights Council report of 2006 cited in Kiszti (2006: 8) and Burke (2009) the goal of the R2P concept was to establish some consensus on when intervention should be permitted, under whose organisation and authority, and the manner in which that intervention should occur. Thus, the R2P doctrine maintains that state sovereignty implies a primary and fundamental responsibility to protect all citizens from any heinous crimes.
According to Scanlon et al., (2007:6) the principle of R2P places three responsibilities on the shoulders of the international community: “the responsibility to prevent; the responsibility to react; and the responsibility to rebuild”. This is a new way of conceptualising state sovereignty in order to move to a culture of national and international accountability;
however, there has been much criticism of the functionality of the R2P. One such criticism is that it often appears ambiguous; the circumstance under which intervention can and cannot be used is often unclear. This, in turn makes it possible for the R2P to be dovetailed into human security conditions in some states, where the principle was employed to arrest human insecurity; the 2011 Libyan crisis is a case in point.
In Replacing the Responsibility to Protect: the Equitable Theory of Humanitarian Intervention, Ciaran Burke (2009:34) expresses doubts about the possibility of any successful application of the R2P. In his view, the concept is flawed, because R2P is “superficially attractive”. He holds that two obvious causal factors for intervention have been omitted from just cause, namely, the “Overthrow of democratically-elected regimes and Massive abuses of Human rights”. He asserts that the R2P concept will continue to victimize the groups that it seeks to redeem because “many of the R2P’s ideas were misconceived, and its threshold criteria are faulty at best” (Burke, 2009: 35).
Burke (2009) adds that the R2P clouds the debate on humanitarian intervention and sets criteria which might easily be used for other, altruistic reasons. For example, there are many circumstances in which external military intervention, regardless of exigent circumstances, will not be a viable option; if China were to use aggressive military force against some form of separatist uprising in Tibet or Xinjiang Provinces, the international community could
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condemn the action, but there would be no real military options in terms of a response. For that matter, there would be no major military option if any one of a number of major powers committed R2P-delineated crimes (Western, 2011)
According to Burke (2009) another criticism of the R2P is the fact that the principle is rooted in “legal nothingness”. Neither state practice, nor major treaties have included affirmative references to the concept, and while the UNSC Resolution 1674(2006) reaffirmed the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document (WSOD) regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, this did not entail legal incorporation of the R2P, nor does it serve as any sort of future guideline for Security Council activities.
Burke (2009) and Alm (2011) argue that the lack of legal foundations for the R2P helps the crusaders for the concept to advance dubious claims and serves the interests of the interveners. He contends that while the idea of ‘good international citizenship’, which implies the responsibility to intervene anywhere in the world when serious crises emerge, due to the interdependence of the world community may counterbalance fears of opportunistic interventions, it is fanciful at best. Martti Koskenniemi notes sarcastically that, “it is never Algeria that will intervene in France or Finland in Chechnya” (Burke, 2009: 139).
Furthermore, the UN permanent five does not exercise their veto unless a matter is of prime interest to them. It is almost always powerful states that intervene in weaker states. In this regard, Burke observes that even though the interveners claim the intervention is “not necessarily for Realpolitik but the moral duty to protect”, in essence, it represents treachery (Burke, 2009: 139).
Burke adds that the prism of R2P favours the Liberal, quasi-utopian notion of a world of interdependent states, each of which has an interest in every conflict, every time they occur, due to the universal desire for a stable world environment. He notes that this vision is roundly refuted by Realists, who point to the fact that unless states’ vital interests are at stake, they will not intervene if intervention risks soldiers’ lives or incurs serious costs. Thus, a happy coincidence where the promotion of national security also defends human rights becomes the preferred alternative. The strength of this position is that it recognises the reality of state interests and power; its weakness is that it makes humanitarianism dependent on shifting geopolitical and strategic considerations. This leads to the conclusion that “some alternative
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formulae for permissible intervention do not posit primacy of humanitarian motives as a sine qua non of intervention” (Wheeler, 2000: 33). The UNSC Resolution 1973 and NATO’s military intervention in Libya lend credence to this claim.
4.3. The Doctrine of responsibility to protect and its application in Libya