Who bears the responsibility to protect innocent victims of humanitarian atrocities like the Rwandan genocide? When may outsiders legitimately suspend another states sovereignty and use force to intervene in its internal affairs? Humanitarian intervention was a persistent challenge throughout the 1990s, in Somalia, Rwanda, Srebrenica and East Timor. Although 9/11 and the war on terrorism has caught the worlds attention, this challenge has not gone away, particularly in Africa.
In Iraq, meanwhile, Saddam Husseins record of brutality was a taunting reminder of the distance yet to be traversed before we reach the goal of eradicating domestic state criminality; his ousting and capture is a daunting setback to efforts to outlaw and criminalise war as an instrument of state policy in international affairs.
The International Commission on Intervention and State Sovereignty
The International Commission on Intervention and State Sovereignty (ICISS) was set up to address the tension between sovereignty on the one hand, and humanitarian intervention on the other. It was established by the Canadian government in September 2000, in response to Kofi Annans challenge to the world to forge a new consensus on the competing principles of international humanitarian concern and national sovereignty. Its members were chosen to reflect a range of geographical, political and professional backgrounds. Its work took us to every continent and most major capitals.
The results are encapsulated in The Responsibility to Protect, published in December 2001. The report seeks to do three principal things: to change the conceptual language from humanitarian intervention to responsibility to protect; to pin this responsibility on the state, at the national level, and on the UN Security Council, at the international level; and to ensure that interventions, when they do take place, are done properly.
It is easy to dub a war a humanitarian intervention, and so label its critics as anti-humanitarian. The ICISS recommended a change in terminology to responsibility to protect, which is a more accurate reflection of the sense of international solidarity from which external help should spring. It is important to get away from the rights and duties of interveners and to focus instead on the needs of victims.
The commission found it useful to reconceptualise sovereignty, viewing it not as an absolute term of authority, but as itself a kind of responsibility: state authorities are responsible for protecting the safety and lives of citizens, and accountable for their acts of commission and omission in international as well as national forums. In part, this expressed what we heard from a cross-section of African interlocutors.
While the state has the primary responsibility to protect its citizens, the responsibility of the broader community of states is activated when a particular state either is unwilling or unable to fulfil its responsibility to protect, or is itself the perpetrator of crimes or atrocities. Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the government in question is unwilling or unable to halt or avert it, the norm of non-intervention yields to this international responsibility to protect.
The foundations of the international responsibility to protect lie in obligations inherent in the concept of sovereignty; the responsibility of the Security Council, under Article 24 of the UN Charter, for the maintenance of international peace and security; specific legal obligations under human rights and human protection declarations, covenants and treaties, international humanitarian law and national law; and the developing practice of states, regional organisations and the Security Council itself.
ICISS identified three specific responsibilities: prevention, reaction and reconstruction:
- The responsibility to prevent. This requires addressing both the root causes and the direct causes of internal conflict and other man-made crises putting populations at risk. ICISS believes that prevention is the single most important dimension of the responsibility to protect: prevention options should always be exhausted before intervention is contemplated, and greater commitment and resources must be devoted to it. The responsibility to prevent and react should always involve less intrusive and coercive measures before more coercive and intrusive ones are applied.
- The responsibility to react. This requires us to respond to situations of compelling human need with appropriate measures, which may include coercive means like sanctions and international criminal prosecution, and in extreme cases military intervention.
- The responsibility to rebuild. This requires us to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation. These follow-up components of external action are becoming major concerns in post-war Iraq.
Responsibility to Protect is not an interveners charter: it does not provide a check-list against which decisions can be made with precision. Political contingencies cannot be fully anticipated in all their glorious complexity and policy choices will always be made on a case-by-case basis. With that in mind, ICISS set out to identify those conscience-shocking situations where the case for international intervention was compelling, and where armed international intervention was clearly required.
The circumstances in which intervention might be permissible were necessarily narrow, the bar for intervention was high, and the procedural and operational safeguards were tight. The threshold for intervention is crossed when large-scale loss of life or ethnic cleansing is occurring or is about to occur (this is not retroactive, and does not justify intervention now for atrocities committed in the past). Intervention must be guided by the principles of right intention, last resort, proportional means and reasonable prospects.
The primary purpose of the intervention, whatever other motives intervening states may have, must be to halt or avert human suffering. The goal is not to wage war on a state, but to protect victims of atrocities inside the state, to embed protection in reconstituted institutions after the intervention, and then to withdraw all foreign troops.
The scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the defined human protection objective. And there must be a reasonable chance of success in halting or averting the suffering which has justified the intervention, with the consequences of action not likely to be worse than the consequences of inaction.
Questions of authorisation: the role of the UN
Given the enormous normative presumption against the use of deadly force to settle international quarrels, who has the right to authorise such force?
ICISS is clear on this: the UN is the indispensable font of international authority, and the irreplaceable forum for authorising international military enforcement. While its work can be supplemented by regional organisations acting within their own jurisdictions, only the UN can build, consolidate and use military force in the name of the international community. As we learn yet again in Iraq, it is easier to wage war without UN blessing than it is to win the peace.
The urgent task therefore is not to evade or circumvent the UN, but to make it work better, to hold it accountable for its responsibility to protect at the global level. Security Council authorisation should be sought prior to any military intervention. Those calling for an intervention should formally request such authorisation, or have the Council raise the matter on its own initiative, or have the Secretary-General raise it under Article 99 of the UN Charter, which permits the Secretary-General to bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.
The Security Council should deal promptly with any request for authorisation where there are allegations of large-scale loss of life or ethnic cleansing. It should seek adequate verification of facts or conditions on the ground that might support a military intervention. The Permanent Members of the Security Council should agree not to apply their veto, in matters where their vital interests are not involved, to obstruct the passage of resolutions authorising military intervention for human protection purposes for which there is majority support. Washington had a point in its complaints about the inadequacies of the existing UN machinery and modalities for confronting and eliminating todays threats.
If the Security Council rejects a proposal or fails to deal with it in a reasonable time, the matter may be considered by the General Assembly under the Uniting for Peace procedure. This machinery, established in 1950, allows the Assembly to consider issues of force in cases where the Permanent Members are divided, or where the Council fails to exercise its primary responsibility for the maintenance of international peace and security.
Action within their area of jurisdiction may also be taken by regional or sub-regional organisations, subject to their seeking subsequent authorisation from the Security Council. The Security Council should take into account in all its deliberations that, if it fails to discharge its responsibility to protect in conscience-shocking situations, concerned states may not rule out other means and that the stature and credibility of the UN may thereby suffer further erosion.
Changing demands, expectations and tools
The ability and means to do something beyond a states borders, even in some of the worlds most distant spots, have increased tremendously. This has correspondingly increased the demand and expectation that something be done. An analogy with medicine is appropriate. Rapid advances in medical technology have greatly expanded the range, accuracy and number of interventions. With enhanced capacity and increased tools have come more choices, often with accompanying philosophical, ethical, political and legal dilemmas. The idea of simply standing by and letting nature take its course has become less and less acceptable.
Military intervention happens. The challenge is to manage it so that human security is enhanced and the international system strengthened: to accentuate the positive, minimise the harm. The underlying factors that led to the creation of the ICISS have not gone away. Living in a fantasy world is a luxury we can ill-afford. In the real world, the choice is not between intervention and non-intervention. Rather, it is between ad hoc or rules-based, unilateral or multilateral, and consensual or deeply divisive intervention.
If we are going to get any sort of consensus in advance of crises requiring urgent responses, including military intervention, the principles of Responsibility to Protect point the way forward. To interveners, they offer the prospect of more effective results. For any international enforcement action to be efficient, it must be legitimate; for it to be legitimate, it must conform with international law; for it to conform to international law, it must be consistent with the UN Charter. To the potential targets of intervention, these principles offer the comfort of a rules-based system, instead of one based solely on might.
During the commissions worldwide outreach and consultations, nowhere did we find an outright and absolute rejection of intervention in favour of sovereignty. Instead, we found much greater focus on issues like consistency of response, agency of authorisation and clear and consistent rules echoes of which were heard again in debates over Iraq in 2003. On balance, the desire to avoid another Rwanda (where the world stood passively by during genocide) was more powerful than the desire to avoid another Kosovo (where NATO intervened without UN authorisation).
Kofi Annan has put the authority of his office behind Responsibility to Protect, describing it as the most comprehensive and carefully thought out response to date to the challenge of humanitarian intervention. According to Annan, it takes away the last remaining excuses for the international community to do nothing when confronted with atrocities again. We believe that it will help the world to be better prepared conceptually, normatively, organisationally and operationally to meet the challenge, wherever and whenever it arises again, as assuredly it will.
Ramesh Thakur is Senior Vice Rector of the United Nations University (Assistant Secretary-General of the United Nations). He was an ICISS Commissioner. The ICISS report may be found at www.iciss-ciise.gc.ca.