The Briefing

Libya, Syria and, the “Responsibility to Protect”

Tuesday, January 29, 2013

At the 2005 United Nations World Summit, member states formally embraced the “responsibility to protect,” a principle of humanitarian intervention aimed at stopping atrocities. Briefly, the principle holds that states have a responsibility to protect populations residing on their territory from genocide and lesser atrocities; if they cannot or will not act in fulfillment of this responsibility, the international community may intervene to provide protection. The intention of the principle, known colloquially as R2P, is to defeat claims that states might make about their sovereign right to non-interference in their internal affairs in order to shield their own acts of mass atrocity or their failure to stop atrocities.

R2P, though it is often described as an emerging norm in international politics and international law, has always been controversial. Needless to say, authoritarian states that are themselves complicit in atrocities will never do more than pay lip service to any such responsibility toward the people they rule. Other states have expressed concerns that R2P is indistinguishable from neo-colonialism and the “right of intervention” strong states have sometimes asserted in pursuit of their national interests against weaker states. Critics have also noted the potential unevenness of the application of R2P: powerful states with the ability to deter military intervention under the banner of R2P will potentially be able to disregard the asserted responsibility.

There is, moreover, the vexing question of how the “international community” decides to act to fulfill the responsibility to protect when a state is failing to fulfill it. The “World Summit Outcome” document vests this authority with the Security Council:

138. 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.

It’s doubtful that all states genuinely supporting the principle of the responsibility to protect would take the view that international action and intervention always requires a Security Council resolution. The NATO military intervention in Kosovo, though it predated the adoption of R2P, was clearly a humanitarian intervention to protect civilians. It lacked a Security Council resolution, however, leading some to conclude that the intervention was illegal (although some embracing this conclusion nonetheless viewed the intervention as morally justifiable). The United States, to pick one great power, has often preferred to try to work through the Security Council, but has generally reserved the option of acting on its own authority. It is perhaps telling that in taking military action against Georgia in 2008, the Russian Federation cited its supposed “responsibility to protect” ethnic Russians residing in Georgia.

The NATO intervention in Libya is, to date, the most conspicuous example of the application of R2P. Two Security Council resolutions, 1970 and 1973, refer directly to the Libyan government’s responsibility to protect its people and its failure to do so. The first of these demanded a halt to violence against civilians; the second authorized member states “to take all necessary measures” to protect civilians.

The case of Libya was therefore R2P at its most pristine—military action to protect civilians under the authority of the Security Council. Except that the NATO mission in Libya also had the unstated goal of toppling the regime of Muammar Qaddafi, at which it succeeded, and this was in no way authorized by the Security Council resolutions (which would certainly have fallen to Russian and Chinese vetoes had they been put forward with any such authorization).

The use of R2P to topple Qaddafi has not gone over well, to put it mildly, with Russia and China among others. They have complained of abuse of the authority the Security Council granted, and they have made clear they will be very reluctant to grant such authority again. After the Syrian regime of Bashar al-Assad began opening fire on civilians in April 2011 to quell growing protests, Russia and China stood steadfastly opposed to a Security Council resolution condemning Syria even as the death toll mounted and the rebellion grew. Nearly two years later, civilian deaths are estimated at 25,000 to 30,000.

The Obama administration has worked at the United Nations to obtain a resolution condemning Syria, without success of any kind—far from garnering the requisite support for a resolution authorizing “all necessary measures” to protect civilians. Given the dimensions of the loss of life in Syria, one could be forgiven for wondering whether R2P is now a dead letter at the United Nations.

But that would be to misunderstand the responsibility to protect. The notion that R2P would somehow harden into customary international law that binds states, or even into a norm of international politics that would dictate the course of action of the “international community” in difficult cases, was surely misguided. R2P is, at its best, a tool in the hands of states and statesmen willing to hold perpetrators of atrocities to account. It provides a legitimate basis for rejecting, in cases of mass atrocity, the principle of non-interference in the internal affairs of sovereign states. It will never be a substitute for political will, but rather can be an instrument of political will.

The Obama administration’s work at the United Nations is in effect substituting the pursuit of procedural compliance with R2P in the form adopted by the United Nations for the pursuit of the protection of Syrian civilians. If the administration is serious about doing anything to protect Syrians and to vindicate R2P as a principle, it must now bypass the procedural bottleneck at the United Nations. It should have done so long ago. And if it doesn’t, then it will be entirely plausible for critics to suggest that the impasse at the United Nations is actually serving the ends of US policy rather well—a US policy of inaction and non-intervention.