UN civilian protection principle strengthened by Libya

Report
from Oxford Analytica
Published on 13 Feb 2012

Last year was a watershed for the 'responsibility to protect' (R2P) principle, marking both the tenth anniversary of the influential Commission report which argued for its adoption by the international community and, in Libya, the first time the UN Security Council authorised the use of military force against a state for the purposes of protecting civilians without the consent of that state. However, while R2P has become a prominent feature of international diplomacy over the past decade, and is frequently invoked by states, international organisations and civil society, its scope, status and implications remain contested.

Impact
- Russia and China will continue stiffly to oppose the principle, though other states may undercut it by emphasising 'peaceful R2P'.
- The Libya case suggests that it will be difficult for Security Council members to resist calls for R2P backed by regional organisations.
- If instability in Libya ends relatively soon, it will boost international acceptance of R2P.

What Next
While the Libya case has revived longstanding concerns that R2P is merely a new gloss on 'humanitarian intervention', the principle has become a mainstay of international politics. As the current situation in Syria illustrates, invoking R2P against a regime by the internal opposition or external adversaries can undermine regime credibility -- even if such calls go unheeded by the UN.

Analysis
Former UN Secretary-General Kofi Annan in 1999 challenged member states at the Millennium Summit to avoid inaction in mass atrocity situations such as Rwanda and Bosnia, and to forge a new consensus over the legitimacy of external action to protect vulnerable populations. The Canadian-sponsored International Commission on Intervention and State Sovereignty (ICISS), which released its report in 2001, responded by articulating the conditions under which coercive action against another state for humanitarian purposes could be legitimate. In so doing, it argued that the debate should no longer be about the "right of intervention" but rather about the nature and scope of states' "responsibility to protect". The core of the Commission's argument was that contemporary sovereignty is no longer about undisputed control over territory, but rather a conditional set of rights dependent upon a state's willingness and capacity to protect its population.

This assertion was, and remains, exceptionally controversial. However, recent events have, if anything, embedded R2P as a powerful precept in international affairs.

UN adoption
Intense diplomacy and advocacy led to endorsement of R2P at the 2005 UN World Summit. Article 138 of the Summit Outcome Document declares that all states have a responsibility to protect their populations from four atrocity crimes: genocide, ethnic cleansing, crimes against humanity and war crimes. Article 139 goes on to state that the international community, through the UN, "has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapter VI and VII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity." It then commits the Security Council, in concert with relevant regional organisations, to address crises on a case-by-case basis.

Growing pains
Despite this high-level acceptance by states, putting the principle into action encountered stiff resistance -- even after the secretary-general appointed a special advisor on R2P (Edward Luck) in late 2008. There were three central problems, namely:

  • uncertainty over when and how it applied (exemplified by French diplomats' efforts to invoke R2P over the Burmese government's handling of Cyclone Nargis, and the Russia attempt to justify its military action in Georgia using R2P language);
  • lack of clarity over who carried the responsibility to protect (illustrated by the strained relationship between the UN and African Union over Darfur); and
  • continued concerns about the potential of R2P to erode state sovereignty (a point raised frequently by China and Russia in the UN Security Council).
    Indeed, Beijing and Moscow have lobbied to avoid invocation of the term 'R2P' in Council resolutions, claiming that the 2005 Summit Outcome document had given the General Assembly the responsibility for developing and furthering the concept.

Libya intervention impact
Events in Libya in February 2011 offered R2P advocates an opportunity to galvanise support for coercive action to prevent the commission of mass atrocities. Despite significant opposition from Russia (which advocated a ceasefire and a political solution to the crisis) and an initial lack of interest in military action by the United States, the Security Council passed Resolution 1973, which authorised the use of 'all necessary means' to protect civilians from imminent threat of attack.

Passage of the resolution was facilitated by the imminence of the threat to Benghazi and the clarity of leader Muammar al-Qadhafi's intention to commit atrocities. However, the critical enabling factor was the request to the Council by the Arab League to authorise a 'no-fly zone' and initiate contact with the National Transitional Council. Without regional support, reluctant states such as China would have been unlikely to back such forceful action.

Continued limitations
Resolution 1973 also marked the first time the Council has authorised the use of military force against a state, for the purposes of civilian protection, without that state's prior consent. Nonetheless, from the perspective of R2P, it is important to note that the resolution only refers to the responsibilities of the Libyan authorities to protect their citizens; it does not explicitly refer to the international community's responsibility to protect. This reflects the continuing concern of states (particularly China and Russia) about interference by the international community in the internal affairs of sovereign states.

From 'protection' to regime change
In addition, members of the Council expressed disquiet as the NATO-led mission evolved from protecting civilians from the air, to actively supporting the rebels in ousting the Qadhafi regime (through both military assistance and the use of Special Forces). The lack of clarity on rules of engagement and of mechanisms to hold NATO accountable for its evolving strategy confirmed the fears of those Council members who had either abstained or voted against Resolution 1973 (China, Russia, India, Brazil, and Germany) about the unintended consequences of using force.

Council qualms
Indeed, the tendency in the Libyan case for R2P to become linked to forceful regime change makes it much less likely that the Security Council will agree in the near future to similar kinds of measures to address imminent atrocity crimes. It has also prompted a recent diplomatic initiative by the Brazilian government, 'Responsibility while Protecting', which is designed to:

  • emphasise the international community's non-military options for exercising R2P;
  • limiting the recourse to force as a 'last resort'; and
  • ensuring that those carrying out any Council-authorised military mission abide by the strict terms of the mandate and act in conformity with the international law of armed conflict.

Outlook Since Resolution 1973, the Council has mentioned R2P in its resolutions on Sudan (Resolution 1996) and Yemen (Resolution 2014), and various states have argued for its applicability in Syria. However, recent action in Libya will shape how the principle will be implemented in the future, by strengthening the position of regional organisations as key enablers of global action to mass atrocity crimes, reinvigorating the search for non-military means to prevent such atrocities, and encouraging military organisations to think more carefully about how to 'protect responsibly'.

Oxford Analytica:
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