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From the ICISS Report to the 2005 World Summit

Name: From the ICISS Report to the 2005 World Summit
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Author: Nico Smit
ISBN: 978-3-656-38170-9

The mainfactors influencing the evolution of the R2P

Bachelor Thesis, 2010

60 Pages, Grade: 70

Nico Smit (Author)

Excerpt

1. ACKNOWLEDGEMENTS

2. LIST OF ACRONYMS

3. INTRODUCTION

4. BACKGROUND TO HUMANITARIAN INTERVENTION
- Meaning and Definition of Intervention
- The Concept of Humanitarian Intervention
- Humanitarian Intervention and the U.N. Charter

5. THE ICISS AND THE RESPONSIBILITY TO PROTECT
- Past Failures, the U.N. Secretary General’s Challenge and
the Establishment of the ICISS
- Francis Deng and the Concept of Sovereignty as Responsibility
- The ICISS and Sovereignty as Responsibility
- Core Principles of R2P
- R2P Principles for Military Intervention

6. FROM THE ICISS REPORT TO THE 2005 WORLD SUMMIT: MAIN
FACTORS INFLUENCING THE EVOLUTION OF THE R2P
- The 2005 World Summit and R2P
- The War on Terror and the 2003 War in Iraq
- The Crisis in Darfur
- The Problem of Security Council Buy-In

7. CONCLUSION

8. REFERENCES

ACKNOWLEDGEMENTS

I would like to thank Professor Annette Seegers, my supervisor, for guiding me with this project. Her comments, insights and suggestions on my ideas were extremely helpful, as were the readings she suggested.

I would like to thank Dr. Carol Kotze for her careful proof-readings and comments on this paper. I am perpetually grateful for the many hours she spent on this project. Had it not been for her help, I am doubtful that I would have been able produce work of this standard.

Nicolaas Smit

Cape Town, November 2010

List of Acronyms

illustration not visible in this excerpt

INTRODUCTION

The International Commission on Intervention and State Sovereignty (ICISS) published its report, The Responsibility to Protect, (hereafter referred to as the Report) in 2001.^[1] The Report followed the 9/11 attacks on the World Trade Centre and the Pentagon, and the subsequent US-led war on terror has largely overshadowed the debate on humanitarian intervention which the Report aimed to reignite.^[2] The Report has, however, provided answers to issues that were central to the debate surrounding humanitarian intervention during the 1990s, namely, just cause, right authority and the balance between the protection of human rights and sovereignty, but has in the process sparked a new debate centring around the principle it introduced, that of the Responsibility to Protect (R2P). The establishment of the ICISS and the subsequent publication of its report were in response to a challenge laid down by then Secretary-General of the United Nations (U.N.) Kofi Annan:

If humanitarian intervention is indeed an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that offend every precept of common humanity?^[3]

The Canadian government, acting on the initiative and ingenuity of Foreign Minister Lloyd Axworthy,^[4] created an international commission which was tasked to “wrestle with the whole range of questions – legal, moral, operational and political – rolled up in this debate, to consult with the widest range of opinion around the world, and to bring back a report that would help the Secretary-General and everyone else find some new common ground.”^[5] The Report envisions a re-conceptualisation of sovereignty, adding to it a fourth dimension, namely that sovereignty involves a threefold responsibility of states.^[6] This re-conceptualisation does not amount to a dilution or transfer of state sovereignty, but rather, a “necessary-re-characterisation ...from sovereignty as control to sovereignty as responsibility in both internal functions and external duties.”^[7] The Report’s central theme is the notion that states are responsible for the protection and well-being of their citizens, but where a state is either unable or unwilling to discharge this responsibility, it is then transferred to the international community.^[8] Rather than contradictory – as was suggested in the previous debate – the Report asserts that the relationship between intervention on the basis of human rights and sovereignty is complementary.^[9]

From its inception in 2001, the principle of R2P? has progressed to worldwide acceptance remarkably fast, as it was widely accepted by the international community at the 2005 World Summit.^[10] As endorsed at the 2005 World Summit, the R2P is significantly different from its articulation in the ICISS report.^[11] A large portion of the literature dealing with the evolution of the R2P focuses on the principle’s progression from the ICISS report to the HLP report, the Secretary-General’s report and ultimately the 2005 World Summit Outcome Document. This thesis aims to provide a discussion of the main factors influencing the debate around the R2P and the principle’s evolution, namely, the war on terror and the 2003 war in Iraq, the crisis in Darfur, and lastly, U.N. Security Council buy-in regarding the ICISS articulated criteria to guide the use of military force in humanitarian intervention. Toward this end, a background to humanitarian intervention is provided, from which the focus shifts to a discussion of the ICISS and the R2P. Finally, the magnifying glass is cast on the version of R2P as articulated in the World Summit outcome document and the most significant events and arguments that have informed the debate around the R2P, and the emergence of what is termed ‘R2P Lite’. The manner in which the U.S. has pursued the war on terror, the waging of war in Iraq (2003), and the use of humanitarian justification to legitimise that war, has been a significant factor influencing the debate around R2P.^[12] Using the debates on humanitarian intervention in Darfur as a reference point, an argument can be made that the war in Iraq has “undermined the standing of the United States and the U.K as norm carriers.”^[13] Furthermore, an argument can be made that an underlying theme in the evolution of the R2P, and the reason for this thesis, is that we are currently experiencing a changing of the writers of the rules of the international system.^[14]

Alex Bellamy argues that the main activists of humanitarian intervention have suffered a “credibility crisis,” with the real danger being that appeals to a R2P “will evaporate amid disputes about where that responsibility lies.”^[15] Initially my understanding was that with regards to the 2003 crisis in Darfur, R2P as a principle had failed to live up to the standards that it set, and that this failure was the primary reason behind the international community’s response (or rather lack thereof). However, what I have come to discover was that by introducing the “language of a ‘responsibility to protect’,” into the debates around Darfur, has enabled those who are opposed to intervention “to legitimise arguments against action”^[16] by claiming that in a number of disputed cases the primary responsibility remains with the state in question and has yet not been transferred to the international community.^[17] This of course returns the issue to the question of the balance between sovereignty and the protection of human rights, and although the Report stresses that these two aspects are complementary, as is mentioned above. It is apparent that this is an issue of contention not only in the debates surrounding Darfur, but also in the evolution of the R2P, and as such, will receive special attention here, but also because this issue speaks to what is one of the central principles of the international system, namely that of sovereignty as well as the accompanying norm of non-intervention.

BACKGROUND TO HUMANITARIAN INTERVENTION

This chapter aims to provide a background to humanitarian intervention in order to provide a basis from which to judge the significance of the Report, as well as the concepts and the ideas that it introduced. Furthermore, a central theme of this chapter is the contentious nature of humanitarian intervention, something which has had important implications in the debate around R2P, as well as the principle’s evolution. Toward this end, this chapter provides a discussion on the definition and meaning of intervention, from where the focus will shift to the concept of humanitarian intervention. The third part of the chapter deals with intervention (including military) and the U.N. Charter, discussing firstly the argument that humanitarian intervention is legal, and secondly, suggesting that it is illegal.

The Meaning and Definition of Intervention

Intervention refers to a range of non-consensual actions, which is often believed to “challenge the principle of state sovereignty”^[18] directly, or as Wheeler and Bellamy define it “in terms of a coercive breach of the walls of the castle of sovereignty.”^[19] The term’s actual meaning can be drawn from the contexts within which it occurs, as well as the purposes for which it is undertaken.^[20] Where a target state provides unqualified consent or makes a genuine request, actions are not considered intervention, and consent, if it is to be legally valid, “should emanate from the legal government of a sovereign state and be freely given.”^[21] Furthermore, any means of interference that does not result in coercion in the domestic affairs of a particular state is not considered intervention.^[22] In fact, a primary objective of foreign policy is to persuade both hostile and friendly states alike, to undertake changes in behaviour that are in line with foreign policy goals.^[23] Such a definition of intervention is of course not exhaustive, as broader definitions of the term have always been in existence. For instance, in the contemporary era where the international system is characterised by asymmetrical power relations, foreign direct investment (FDI) and economic activities are perceived by some as forms of ‘intervention’.^[24]

Because the issue of consent has been identified here as one criterion for determining what is considered intervention and what is not, a brief return to it is warranted here. There are some grey areas with regard to consent, and which relate to both military and economic measures.^[25] In some instances the call for military intervention from the target state potentially involves “so much arm-twisting, including economic pressure from Washington-based financial institutions, as to effectively constitute coercion.”^[26] A number of terms have emerged in thinking about what constitutes coerced consent, including that of ‘coercive inducement’, and towards ensuring that the request for intervention is not in fact spurious, rather than frame the term merely as a lack of consent, conceptualising it “as a matter of factual intrusiveness”^[27] may go some way towards achieving this objective. For a number of definitions of intervention, rather than see consent as an absolute concept, it may be more useful to think of it as a continuum.^[28] There is no doubt that the non-consensual use of military force against another state amounts to intervention, but similarly so too is the utilization of non-military measures such as economic and political sanctions, international criminal prosecution and arms embargoes.^[29] “Intervention is a concept with a distinct character. This character lies in the use of “forcible” or “non-forcible” measures against a state, without its consent, solely on account of its internal or external behaviour.”^[30] Although the most frequent end to which intervention has been employed is the protection and safeguarding of significant interests of the intervening state(s), the justification of intervention on the basis of human suffering has a long history, and will be discussed in the following section, I believe it prudent to end this section with R. J. Vincent’s definition of intervention:

Activity undertaken by a state, a group within a state, a group of states or an international organization which interferes coercively in the domestic affairs of another state. It is a discrete event having a beginning and an end, and it is aimed at the authority structure of the target state. It is not necessarily lawful or unlawful, but it does break a conventional pattern of international relations.^[31]

The Concept of Humanitarian Intervention

The roots of the notion of humanitarian intervention by foreign states following the failure of a state to discharge its responsibility to its citizens can be traced to Hugo Grotius, writing in the 16th Century.^[32] Grotius asserted that a foreign state could support the citizens of another state in instances where the target state is engaged in repression of its citizens, who are in turn engaged in legitimate resistance to such repression.^[33] However, it is only after 1840 that the first references to humanitarian intervention emerged in international legal writing, and two interventions stand out as primarily responsible for this.^[34] The first was the 1827 British, French and Russian intervention in Greece to avert Turkish massacres and halt the suppression of peoples with ties to insurgents, and the second was the 1860 French intervention in Syria aimed at the protection of Maronite Christians.^[35] From the period 1827 – 1906, there were no fewer than five “prominent interventions undertaken by European powers against the Ottoman Empire,”^[36] and by the second decade of the 20th Century, the rationale underlying intervention had widened to “include the protection of nationals living abroad.”^[37]

State abuse of sovereignty by cruel and brutal treatment of those within the ambit of its power, be those nationals or non-nationals was the primary cause for calls for intervention.^[38] States that engaged in such behaviour were perceived as having opened the door to action by any foreign state or group of states that were willing to intervene. Ellery Stowell illustrates humanitarian intervention thus: “the reliance on force for the justifiable purpose of protecting the inhabitants of another state from the treatment which is so arbitrary and persistently abusive as to exceed the limits of that authority within which the sovereign is presumed to act with reason and justice.”^[39] However, intervention has and continues to be approached and regarded with suspicion, as many have cast a doubtful eye over the earliest instances of humanitarian intervention. Critics of humanitarian intervention assert that given the lack of an impartial and unbiased mechanism by which to determine when humanitarian intervention is permissible, states are likely to employ humanitarian justifications and motives as a pretext to veil the pursuit of political, economic or strategic interests.^[40] This argument has been extended and those who find credence with this line of reasoning claim that humanitarian intervention will become a weapon of the strong employed against the weak.^[41] Furthermore, it is doubtless that even when in situations where the goals were less questionable, “the paternalism of intervening powers – which were self appointed custodians of morality and human conscience, as well as the guarantors of international order and security – undermined the credibility of the enterprise.”^[42]

By the end of the nineteenth century a large number of legal scholars believed “that a doctrine of humanitarian intervention existed in customary international law,”^[43] although this claim was disputed to a significant degree. The significance of these conclusions are contested, with some legal scholars arguing that such a doctrine was undoubtedly established in pre-Charter state practice before 1945,^[44] “and that it is the parameters, not the existence, of the doctrine that are open to debate.”^[45] This claim is of course rejected, with other scholars pointing firstly to state practice pre-1945, and the lack of support therein for a “right of humanitarian intervention,”^[46] and secondly, citing inconsistency in state practice, especially in the twentieth century.^[47] What is evident is that this idea of intervention underwent substantial evolution prior to the emergence of an international system equipped with mechanisms and institutions tasked with the protection of human rights and maintenance of international order.

The definition of humanitarian intervention given above is somewhat dated, and Kenneth Roth provides a definition thereof that is very much in line with that provided for intervention above, namely, “military intervention without the consent of the government whose territory is being invaded,”^[48] but qualifies this by stating that only “the imperative of stopping ongoing or imminent mass slaughter might justify the risk to life.”^[49] Fernando Tesón provides a definition of humanitarian intervention that omits the issue of consent, depicting it as “proportionate help, including forcible help, provided by governments (individually or in alliances) to individuals in another state who are victims of severe tyranny (denial of human rights by their own government) or anarchy (denial of human rights by collapse of social order).”^[50]

What these authors share in terms of their understanding of humanitarian intervention, is that both subscribe to a set of principles that either guide or justify/legitimate humanitarian intervention. Roth identifies five factors which, once the abovementioned threshold is met, determine whether military action can be labelled as humanitarian. First, the resort to military force must be “the last reasonable option.”^[51] Secondly, the primary motive or purpose driving the intervention must necessarily be humanitarian.^[52] Third, the intervention must be carried out with the outmost respect for international humanitarian law and human rights, fourth, it must not cause more harm than good, and finally, the intervention “should ideally, though not necessarily be endorsed by the U.N. Security Council or another body with significant multilateral authority.”^[53] Tesón on the other hand provides five principles which are intended to guide humanitarian interventions; firstly, putting an end to anarchy or tyranny must be the aim to which justifiable intervention is directed.^[54] Secondly, the doctrine of double effect – “the permissibility of causing serious harm as a side effect of promoting some good end, coupled with an adequate theory of costs and benefits”^[55] - apply to and govern humanitarian intervention, as it does all wars. Third, in general terms, it is only the most severe cases of tyranny or anarchy that satisfy the call for humanitarian intervention.^[56] Fourth, the intervention must be welcomed by the victims of anarchy,^[57] and finally, “humanitarian intervention should preferably receive the approval or support of the community of democratic states.”^[58] Thus, although these two authors differ on the precise principles to guide humanitarian intervention, these examples are provided to illustrate the evolution of the concept. What this also shows is that one will be hard pressed to find a uniform definition of humanitarian intervention, that the principles guiding it are likely to overlap but will have some divergence, and that humanitarian intervention remains a contentious issue in the international system.

Humanitarian Intervention and the U.N. Charter

The 20th Century restriction on the “use of force in intervention”^[59] can be traced to the Peace of Westphalia, concluded in 1648.^[60] Furthermore, the initial “restrictions on recourse to war”^[61] were envisioned in the 1928 Kellog-Briand Pact, and the system later crystallized into its contemporary form, as expressed in the U.N. Charter. The threat or actual “use of force against the territorial integrity and political independence of states”^[62] has since 1945 been prohibited under the U.N. Charter’s Article 2 (4), which grants exception “for the collective use of force under Chapter VII,”^[63] and for collective or individual self-defence in a situation of an armed attack under Article 51.^[64] Despite the fact that the prohibition on the use of force appears explicitly clear, questions regarding the legality of humanitarian intervention, as for instance in 1946, a prominent legal scholar continued his argument that intervention is permissible by law when a “state is guilty of cruelties against its nationals in a way that denied their fundamental human rights and shocked the conscience of humankind.”^[65] However, with regardsto the forceful intervention by a state or group of states aimed at the protection of “the citizens of another state, the Charter is silent.”^[66]

Turning to the question of whether or not humanitarian intervention is legal in terms of the U.N. Charter, there are two opposing points of view on this issue. Firstly, there are those who assert that not only is humanitarian intervention legal, but it is also legitimate.^[67] These proponents of humanitarian intervention “frequently cite the purposes of the UN Charter.”^[68] Article 1(3) of the Charter states that an explicit function of the U.N. relates to the achievement of international co-operation in the promotion and encouragement of respect for fundamental freedoms and human rights for all, irrespective of sex, religion, language or race. Furthermore, the preamble to the Charter “reaffirm[s] faith in fundamental human rights.”^[69] Article 13(1)(b) affords the General Assembly the authority and power to facilitate the achievement and fulfilment of human rights, and Article 55(c) requests that the U.N. promote “universal respect for, and observance of, human rights and fundamental freedoms.”^[70] Article 62(2) affords the Economic and Social Council (ECOSOC) the power and authority to “make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all,”^[71] and Article 68 empowers the Council to establish commissions for the promotion and advancement of human rights.^[72] Although these provisions are not a comprehensive list of all the articles of the U.N. Charter that are concerned with the protection of human rights, it is nonetheless clear from the abovementioned articles that the promotion and advancement of human rights are a central concern of the U.N. Charter. Furthermore, the argument can undoubtedly be made that in certain instances “humanitarian intervention is consistent with the objectives of the U.N. Charter.^[73]

Article 2(4) of the U.N. Charter emphasises the prohibition of the use or threat of force “against the territorial integrity or political independence of any state.”^[74] Regarding political independence and territorial integrity, it is arguable that an authentic humanitarian intervention results in neither political subjugation nor territorial conquest.^[75] Firstly, the rule asserts that the territorial integrity of a state must be protected from the use of force by another, meaning that “a state’s territory must be kept integral – that is, no parts of it may be forcibly separated and given over to another state.”^[76] Thus, provided that the territorial boundaries of the state in question remain intact, the argument can be made that humanitarian intervention does not amount to a breach of Article 2(4).^[77] If one perceives the political independence of a given state as referring to the “right of the people of a state to political independence,”^[78] then humanitarian intervention directed towards the protection of the people “would affirm the state’s political independence, rather than violate it.”^[79] This view has been extrapolated and the conclusion has been drawn that even in the event that the government of the state in question is overthrown, its political independence is left unthreatened,^[80] as through its oppression of its citizens, the government is perceived as having suffered a loss of legitimacy.^[81]

[...]

^[1] Alex J. Bellamy, Responsibility to Protect (Cambridge: Polity Press, 2009), 51; Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Washington D.C.: The Brookings Institution, 2008), 31.

^[2] Evans, The Responsibility to Protect, 44; D. O. Quinn, “The Responsibility to Protect” (MA diss., Canadian Forces College, 2007), 50.

^[3] Kofi Annan, Millennium Report of the Secretary General of the United Nations (New York: United Nations Department of Public Information, 2000), 48.

^[4] Evans, The Responsibility to Protect, 38.

^[5] The International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect (Ottawa: International Development Research Centre, 2001), vii.

^[6] ICISS, 13; Nick Grono, “Briefing – Darfur: The Inrenational Community’s Failure to Protect,” African Affairs 105 (2006): 623; Paul D. Williams and Alex J. Bellamy, “The Responsibility to Protect and the Crisis in Darfur,” Security Dialogue 36 (2005): 28.

^[7] ICISS, 13

^[8] Alex J. Bellamy, “Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention After Iraq,” Ethics and International Affairs 19 (2005): 35; Christina G. Badescu and Linnea Bergholm, “The Responsibility to Protect and the Conflict in Darfur: The Big Let-Down,” Security Dialogue 40 (2009): 288, 290; Williams and Bellamy, 28.

^[9] S. Neil Macfarlane, Carolin J. Thielking and Thomas G. Weiss, “The Responsibility to Protect: Is Anyone Interested in Humanitarian Intervention?” Third World Quarterly 25 (2004): 978; Quinn, 34.

^[10] Alicia Bannon, “The Responsibility to Protect: The U.N. World Summit and the Question of Unilateralism,” The Yale Law Journal 115 (2006): 1158-9; Grono, 622; 2005 World Summit, Sept. 14-16, 2005, 2005 World Summit Outcome, 138-9, U.N. Doc. A/60/L.1 (Sept. 20, 2005); Mahmood Mamdani, “Responsibility to Protect or Right to Punish,” Journal of Intervention and Stabilising 4 (2010): 55.

^[11] Bellamy, Responsibility to Protect, 83.

^[12] Thomas G. Weiss, “R2P After 9/11 and the World Summit,” Wisconsin International Law Journal 24 (2006): 748; Williams and Bellamy, Responsibility to Protect, 36-7; Gareth Evans, “From Humanitarian Intervention to the Responsibility to Protect,” Wisconsin International Law Journal 24(2006): 717.

^[13] Bellamy, Trojan Horse, 32.

^[14] Ibid.

^[15] Ibid, 33.

^[16] Ibid, 33.

^[17] Ibid, 33.

^[18] International Commission on Intervention and State Sovereignty (ICISS), “The Responsibility to Protect: Research Bibliography, Background (Ottawa: International Development Research Centre, 2001), 15.

^[19] Nicholas J. Wheeler and Alex J. Bellamy, “Humanitarian Intervention in World Politics,” in The Globalization of World Politics: An Introduction to International Relations, eds. John Baylis and Steve Smith (Oxford: Oxford University Press, 2005), 557.

^[20] ICISS, Research Bibliography, Background, 16.

^[21] Ibid.

^[22] Ibid.

^[23] Ibid.

^[24] Ibid.

^[25] Ibid.

^[26] Ibid.

^[27] Ibid.

^[28] Ibid.

^[29] Ibid.

^[30] Ibid.

^[31] R. J. Vincent, Nonintervention and International Order (Princeton, NJ: Princeton University Press, 1974), 13, quoted in Nicholas J. Wheeler and Alex J. Bellamy, “Humanitarian Intervention in World Politics,” In The Globalization of World Politics: An Introduction to International Relations, eds. John Baylis and Steve Smith (Oxford: Oxford University Press, 2005), 557.

^[32] Quinn, 6.

^[33] Ibid.

^[34] ICISS, Research Bibliography, Background, 16.

^[35] Ibid.

^[36] Ibid.

^[37] Ibid.

^[38] Ibid, 17.

^[39] Ellery Stowell, Intervention in International Law (Washington, DC: J. Byrne, 1921), 53, quoted in International Commission on Intervention and State Sovereignty (ICISS), “The Responsibility to Protect: Research Bibliography, Background (Ottawa: International Development Research Centre, 2001), 17.

^[40] ICISS, Research Bibliography, Background, 17; Wheeler and Bellamy, 558.

^[41] Wheeler and Bellamy, 558.

^[42] ICISS, Research Bibliography, Background, 17.

^[43] ICISS, Research Bibliography, Background, 17; Wheeler and Bellamy, 558.

^[44] ICISS, Research Bibliography, Background, 17; Wheeler and Bellamy, 558.

^[45] ICISS, Research Bibliography, Background, 17.

^[46] Wheeler and Bellamy, 558.

^[47] ICISS, Research Bibliography, Background, 17.

^[48] Kenneth Roth, “Was the Iraq War a Humanitarian Intervention?” Journal of Military Ethics 5 (2006): 85.

^[49] Ibid.

^[50] Fernando R. Tesón, “Ending Tyranny in Iraq,” Ethics & International Affairs 19 (2005): 2.

^[51] Roth, 85.