aidan hehir - the responsibility to protect_sound and fury signifying nothing

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2010 24: 218International RelationsAidan Hehir

The Responsibility to Protect: 'Sound and Fury Signifying Nothing'?

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218 INTERNATIONAL RELATIONS 24(2)

The Responsibility to Protect: ‘Sound and Fury Signifying Nothing’?

Aidan Hehir

Abstract

The term ‘Responsibility to Protect’ (R2P) has dominated debate on humanitarian inter-vention since the publication in 2001 of the report of the International Commission on Intervention and State Sovereignty (ICISS). Today ‘R2P’ has become a seemingly obligatory reference point for all researchers in this fi eld and R2P’s near ubiquity is testament to the effective marketing of the idea. This article will argue, however, that the currency of the term obscures its hollowness. R2P has undeniably changed the discourse surrounding humani-tarian intervention, and possibly broadened interest in the subject, but it has contributed little of substance or prescriptive merit. Though the report was drafted with the mandate to reconcile international human rights with state sovereignty it fudged the key issues, namely, substantive reform of the United Nations Security Council, the legitimacy of unilateral humanitarian intervention and the threshold for intervention. The shift in focus from response to prevention since 2001 evades the key issue which prompted the ICISS to draft its report and fails to provide a viable or innovative approach.

Keywords: humanitarian intervention, genocide prevention, Kosovo, responsibility to protect, Security Council, sovereignty, World Summit

Introduction

The concept ‘Responsibility to Protect’ (R2P) has undergone something of a renais-sance in the fi nal years of the fi rst decade of the twenty-fi rst century. The inclusion of two paragraphs1 referring to a ‘responsibility to protect’ in the 2005 World Summit Outcome Document, the crises in Burma and Zimbabwe in 2008 and the publication of a number of books in 2008 and 2009 by high-profi le supporters has imbued the concept with a new vitality following the setback of the ‘war on terror’ and particularly the invasion of Iraq.

The publication of the report of the ICISS – The Responsibility to Protect – in 2001 led to exultations over its trail-blazing quality; Thomas Weiss described the original report as ‘path breaking … a way to square the circle of state sovereignty and human rights’; Alex Bellamy cites the inclusion of references to R2P in the 2005 World Summit Outcome Document as ‘the single most important development’ on the ques-tion of addressing egregious intra-state humanitarian crises; and Gareth Evans claimed R2P has made ‘major contributions that seem likely to have a lasting impact’, noting that the 2005 World Summit was ‘an extraordinary moment’.2 Critics, such as David Chandler and Mohammed Ayoob, by contrast, have decried its imminent deleterious impact.3 Both perspectives are united by a conviction that R2P has

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THE RESPONSIBILITY TO PROTECT 219

defi nite signifi cance. In contrast, this article argues that the signifi cance of R2P is very limited and the furore over its prescriptions is a function more of what people imagine them to be rather than what they actually are. As R2P has evolved since 2001 it has moved away from the issue that was its inspiration, namely responding to certain egregious intra-state humanitarian crises, and has increasingly developed into an amorphous concern with prevention. While the term ‘Responsibility to Protect’ and its abbreviation ‘R2P’ have very quickly pervaded political discourse, both lack substance and are little more than slogans employed for differing purposes shorn of any real meaning or utility.

The responsibility to protect

On 24 March 1999 NATO launched Operation Allied Force against the Federal Republic of Yugoslavia. Despite signifi cant – though not wholly uncritical – support from Western states, NGOs and many academics, the intervention generated enormous controversy and propelled the issue of humanitarian intervention to the top of the international political agenda.

The controversy was a function of the fact that NATO did not secure Security Council authorization for its intervention. In its often quoted assessment the Independent International Commission on Kosovo (IICK) described NATO’s inter-vention as ‘illegal but legitimate’.4 In addition the IICK warned, ‘Allowing this gap between legality and legitimacy to persist is not healthy’.5 The polarizing debate which followed NATO’s intervention highlighted the extent to which consensus on unilateral humanitarian intervention was manifestly lacking. While during the 1990s the Security Council had demonstrated a new willingness to sanction military action under Chapter VII in response to intra-state crises, thereby legalizing one form of inter-national interference in intra-state affairs, action taken without Security Council authorization proved a far more controversial issue.6 Given that the permanent fi ve (P5) members of the Security Council could veto any proposed intervention, even when a humanitarian crisis had reached catastrophic levels, many felt that reform of the existing system was urgently required. In response to the perceived need for clarity highlighted by Operation Allied Force the Canadian government established the ICISS in 2000.

The ICISS was determined that its report would have a practical application and declared, ‘We want no more Rwandas and we believe that the adoption of the pro-posals in our report is the best way of ensuring that.’7 Rather than present the issue in terms of the rights of intervening states, the ICISS placed the onus on states to meet their responsibilities to their own citizens. In the event that a state failed to meet this responsibility the ‘international community’ had a responsibility to protect citizens within this state.

The ICISS put forward three aspects to this responsibility: the responsibility to prevent; the responsibility to react; and the responsibility to rebuild. The idea of a ‘responsibility to prevent’ was that states have a responsibility to ensure that domestic




tensions are addressed before they escalate.8 The ‘responsibility to rebuild’ placed a responsibility on an intervening state, or states, to contribute to a lasting settlement to the original confl ict.9 The ‘responsibility to react’ is most closely related to the central dilemma presented by humanitarian intervention and the aspect of R2P which has attracted greatest attention, although, as later sections of this article attest, this emphasis has gradually altered quite signifi cantly. The ICISS noted that ‘above all else’ R2P constitutes ‘a responsibility to react to situations of compelling need for human protection’.10 If a state is either unable or unwilling to meet its responsibility to protect its citizens then the responsibility transfers from the state to the ‘inter-national community’.

International intervention to stop large-scale human rights abuses, the ICISS argued, need not take the form of military intervention which is legitimate only in extreme cases.11 The ICISS offered six ‘Principles for Military Intervention’ – criteria which must be met for an intervention to be legitimate – namely, right authority, just cause, right intention, last resort, proportional means and reasonable prospects.12 In terms of ‘just cause’ the ICISS suggested two thresholds: ‘large scale loss of life, actual or apprehended ... or large scale “ethnic cleansing”, actual or apprehended’.

Regarding ‘right authority’, which is the subject of its own chapter, the ICISS clearly privileged the UN and, within the UN, the Security Council. All those seeking to launch an intervention must seek the Security Council’s approval, and the ICISS warned that attempts to act without explicit UN approval ran the risk of undermining the UN and international law generally. Membership of the UN, the ICISS claimed, carried an obligation not to use force unilaterally as well as an obligation to use force on behalf of the UN if so sanctioned.13 While the ICISS report was clear as to the importance of the Security Council it additionally criticized the unrepresentative nature of the P5 and its lack of accountability to the General Assembly. In terms of addressing the biggest issue regarding the Security Council’s record on humanitarian intervention – the veto power of the P5 – the ICISS suggested a ‘code of conduct’ whereby ‘a permanent member, in matters where its vital national interests were not claimed to be involved, would not use its veto to obstruct the passage of what would otherwise be a majority resolution’.14 If, however, the Security Council did not act when a crisis passed the just cause threshold, the ICISS suggested the matter should be taken to the General Assembly which could employ the powers vested in it through the ‘Uniting for Peace’ resolution. While the ICISS accepted that this would not constitute explicit legal sanction, it would, they argued, provide a signifi cant stamp of legitimacy for any intervention.15 Additionally the ICISS suggested that regional organizations could undertake an intervention and seek to have retrospective legitimacy bestowed on their actions by the Security Council.

Of course, the most obvious alternative, and that which caused the controversy over NATO’s intervention in Kosovo, is unilateral intervention without any explicit approval from the Security Council or the General Assembly. The ICISS outlined ‘two lessons’ which must guide thinking in respect to this dilemma. First, it stated that in the face of Security Council inaction ‘it is unrealistic to expect that concerned states will rule out other means and forms of action to meet the gravity and urgency




of these situations’. Such interventions ‘may not be conducted for the right reasons or with the right commitment to the necessary precautionary principles’. Second, if action is taken without the Security Council’s approval, and this action proves successful, ‘then this may have enduring serious consequences for the stature and credibility of the UN itself’.16

The evolution of the responsibility to protect

Bellamy noted in 2009 that R2P has ‘changed in important respects from the way it was originally conceived by the ICISS’.17 This section charts this evolution, noting how the focus has shifted towards prevention and the extent to which the relatively innovative aspects of the ICISS report have been gradually abandoned.

R2P was initially favourably received by Canada, the UK and Germany, while Argentina, Australia, Colombia, Croatia, New Zealand, Norway, Peru, the Republic of Ireland, Rwanda, South Korea, Sweden and Tanzania all expressed broad support.18 East Asian countries were ‘more cautious’ in their response, while, perhaps most importantly, the Security Council was quite negative.19 In May 2002 the Security Council discussed the ICISS report: the United States ‘was noticeably unenthusiastic about the debate’, while ‘there was widespread opinion in the meeting that if new situations emerged … the fi ve permanent members and broader Council would lack the political will to deliver troops and would limit themselves to condemnatory resolution’.20 The United States rejected the idea of being bound to commit troops should the ICISS’s threshold be breached, while the Chinese opposed any diminution of the Security Council’s monopoly on the legitimization of the use of force, a per-spective shared by Russia. The Non-Aligned Movement rejected the basic premise behind R2P in the ICISS report, while the G-77, though it offered no joint position, suggested amending the report’s provisions to strengthen the principles of territorial integrity and sovereignty.21 At the July 2003 Progressive Governments Summit the prime ministers of both Canada and the UK attempted to include references to R2P in the fi nal communiqué, but this was rejected, with Argentina, Chile and Germany particularly opposed. This opposition from democracies was unexpected and marked, according to MacFarlane, Thielking and Weiss, ‘a surprising new kind of hostility among countries that earlier might have been counted among the sup-porters of the concept’.22 The fallout from the invasion of Iraq, and the general rhetoric of the Bush administration since 11 September 2001, had created what Weiss described as a ‘poisonous’ atmosphere in the General Assembly and a new unwil-lingness on the part of many states to support anything that appeared to diminish sovereign inviolability.23

In September 2003 Kofi Annan commissioned the High Level Panel on Threats, Challenges and Change to examine the UN’s role in addressing international security concerns. The report ‘signifi cantly changed the normative context’ within which the debate surrounding R2P had proceeded.24 The report recognized the principle that sovereignty and membership of the UN brought with it certain responsibilities.25 The




report further explicitly acknowledged the notion that the international community had a ‘responsibility to protect’ citizens in other states.26 The report adopted the ‘just cause’ thresholds and precautionary principles contained in the ICISS report, with some minor amendments, and, though it advanced a cautious perspective on revising the rules governing the use of force, suggested that the Security Council needed to ‘enhance its capacity and willingness to act in the face of threats’.27 Kofi Annan welcomed the fi ndings and included the recommendations in his report In Larger Freedom which he presented to the General Assembly in March 2005.

At the 2005 World Summit two paragraphs – 138 and 139 – were included in the fi nal Outcome Document explicitly endorsing the notion of a responsibility to protect. The fact that this agreement was reached suggested that advocates of R2P had achieved a signifi cant success. The compromises that secured the inclusion of these paragraphs, however, undermined the essence of the original proposal. Bellamy suggested that three major concessions were made to ensure the inclusion of references to a ‘responsibility to protect’. First, regarding the question of authority, the ICISS’s idea that the P5 should agree not to use their veto powers – the ‘code of conduct’ – was jettisoned early in the negotiations. Additionally the notion of legit-imate intervention without explicit Security Council approval was ‘sidestepped’.28 Second, the just cause threshold included in the Outcome Document actually restricted the instances when the Security Council could legitimately intervene. Security Council practice in the 1990s had substantially broadened the Security Council’s remit to act under Chapter VII. With authority being once again vested in the Security Council, and the criteria for intervention limited to ‘genocide, war crimes, ethnic cleansing and crimes against humanity’, the scope for intervention was restricted when compared to Chapter VII action in the 1990s, such as, for example, the Security Council-mandated intervention in Haiti in 1994.29 Third, while the ICISS stated that the responsibility to protect transferred from the state to the international com-munity when the host state was deemed ‘unable or unwilling’ to exercise its respon-sibilities, in the Outcome Document this was amended to cases where the host state was guilty of a ‘manifest failure’ – a semantic change but one which raised the threshold for international action.

Supporters of R2P sought to achieve two things at the World Summit: they wanted the General Assembly to make a commitment to the tenets of the original ICISS document, and they sought to persuade the Security Council to do three things: fi rst, to adopt a resolution committing it to act whenever the just cause thresholds were crossed; second, to submit its decisions to public deliberation about the use of force based on the precautionary principles; and, third, to agree not to use the veto in cases of humanitarian emergencies where they did not have some clear national interests at stake.30 The two major initiatives proffered by adherents of R2P – that of securing the P5 endorsement of an obligation to act, and the agreement to remove the veto – were not incorporated into the Outcome Document. Additionally, the goal of further strengthening the capacity of states to legitimately act outside of the Security Council was unsuccessful, as the endorsement of the basic tenets of R2P was made con-ditional on the restatement of the Security Council’s primacy. The consensus reached




was, therefore, achieved by conceding key aspects of the original variant of R2P proposed by the ICISS.31 Thus the Outcome Document constituted for Weiss, ‘a step-backward … R2P lite’.32

In 2008 Gareth Evans, co-chair of the original ICISS, published The Responsibility to Protect – the subtitle of which proclaimed the goal, Ending Mass Atrocity Crimes Once and For All. Evans advanced a very positive diagnosis of R2P, in particular em-phasizing the importance of the World Summit Outcome Document.33 R2P, he claimed, is above all else about prevention, and he maintained there were signs that tangible benefi ts had already accrued.34 Evans argued that since the publication of the ICISS report and the ratifi cation of the World Summit Outcome Document we are now ‘much closer’ to ending such mass atrocity crimes once and for all.35 In his 2009 book, Responsibility to Protect: The Global Effort to End Mass Atrocities, Alex Bellamy argued that R2P continued to constitute a viable means of addressing the scourge of certain extreme intra-state humanitarian crises and that it could ‘make a real difference’.36 Like Evans, Bellamy focused on the capacity of R2P to prevent mass atrocities, arguing that R2P would not make a signifi cant difference to the issue of determining when humanitarian intervention should be undertaken.

The emperor’s new clothes?

The term ‘Responsibility to Protect’ is today widely used in both political and aca-demic debate and ‘R2P’ has itself permeated political parlance, arguably more rapidly than any other abbreviation, with the possible exception of ‘9/11’. The ICISS’s determination to change the terms of the debate, therefore, appears to have been suc-cessful.37 Yet the furore generated by R2P masks its underlying hollowness. The following subsections identify the extent to which the controversy surrounding R2P is hyperbole.

A blank cheque for intervention?

In response to the publication of the ICISS report, and in the years since, many have argued that R2P creates an easily abused framework for Western states, and indeed powerful states generally, to intervene at will under the pretext of humani-tarianism. Mohammed Ayoob argued that ‘sovereignty as responsibility’ is remin-iscent of the arguments proffered by European empires in the nineteenth century and ‘raises the spectre of a return to colonial habits and practices on the part of the major Western powers’.38 According to David Chandler, the post-Cold War systemic confi guration, though favourable to the West and particularly to the United States, provided no ‘framework which can legitimize and give moral authority to new, more direct forms of Western regulation’. This ‘crisis’ led to the assertion of the liberal peace thesis which constitutes ‘the convergence of morality and Realpolitik’.39 R2P is part of this liberal peace thesis and thus a means by which the tenets of international law can be manipulated to facilitate the national interest of Western states.




For many sceptics the 2003 invasion of Iraq confi rmed this fear. While the invasion was primarily justifi ed on what we now know to have been spurious security concerns, Operation Iraqi Freedom was also justifi ed as an act of liberation, particularly in retrospect when the fabled weapons of mass destruction failed to materialize.40 Nonetheless, the link between the emergence of R2P and the invasion of Iraq can only be sustained if we can determine that without the framework of R2P the United States-led coalition would not have been able to justify its invasion on humanitarian grounds. This is patently not the case. Prior to the publication of R2P myriad inter-ventions were spuriously justifi ed on humanitarian grounds, most infamously Hitler’s claims that Germany’s invasion of Czechoslovakia in 1938 was prompted by a desire to alleviate the suffering of the Germans living there.41 Indeed, the ICISS found that in the ten cases where humanitarian claims were made for intervention prior to 1999 ‘the rhetoric of humanitarianism had been used most stridently in cases where the humanitarian motive was weakest’.42 The use of humanitarian rhetoric to justify inter-vention is, therefore, common throughout history, and R2P cannot be charged with creating a previously unavailable justifi catory framework. As Evans notes, many have failed to identify the difference between necessary and suffi cient conditions; while the ICISS report and the 2005 World Summit Outcome Document outline the necessary conditions required for an intervention, they do not constitute, and were never proposed as comprising, suffi cient grounds in themselves for the use of coercive force.43 Thus states must do more than identify that thresholds have been breached for their intervention to be justifi ed under the R2P framework. The fear that R2P would precipitate a fl ood of interventions has not materialized and as Weiss noted, ‘Overzealous military action for insuffi cient humanitarian reasons … certainly is no danger’.44 Indeed, as Simon Chesterman observed, there have been more examples of ‘inhumanitarian non-intervention’ than ‘inhumanitarian intervention’, and this is likely to remain the case.45 Chandler’s own view on this has also evolved and he now suggests that R2P in fact facilitates non-intervention by placing the responsibility to protect on the host state, and R2P is therefore used by Western states to justify non-intervention.46 Indeed, Bellamy identifi ed this as one aspect of the UK’s response to the crisis in Darfur.47

Does not address key sources of controversy

The impetus for the establishment of the ICISS was the controversy surrounding NATO’s intervention in Kosovo. The debate surrounding NATO’s action largely focused on two issues: the question of authority and the issue of a threshold for inter-vention.48 Many were concerned that without clear legal rules on who could legit-imately intervene in the absence of Security Council authorization the very basis of international law would be eroded. Additionally, without clear legal rules on when intervention was warranted, the determination that an intervention was necessary would be selective and inconsistent, as indeed was the record of Security Council-mandated intervention in the 1990s.49 Given that these two issues catalysed the heated debate on humanitarian intervention which led to the establishment of the ICISS,




it is striking that the 2001 report failed to articulate any meaningful prescriptions regarding either.

The ICISS report acknowledged that the question of authority is a particularly divisive issue, yet noted, ‘it would be impossible to fi nd consensus … around any set of proposals for military intervention which acknowledged the validity of any inter-vention not authorized by the Security Council or General Assembly’.50 Bellamy concurs, noting that the issue of authority is too ‘thorny’.51 This means, however, that the central dilemma posed by humanitarian intervention remains unresolved. The ICISS equivocated on the issue of intervention without a Security Council mandate, warning both that such action could fundamentally undermine the UN and that it was ‘unreasonable’ to expect states not to intervene if the Security Council failed to act. Rather than address this issue head-on by advancing a proposal for substantive UN reform, the ICISS, Bellamy claimed, ‘sidestepped the question of Security Council reform almost entirely’.52 The only proposal advanced by the ICISS was the ‘code of conduct’ which amounts to a non-binding ‘gentleman’s agreement’. This appears to overlook the fact that the national interests of the P5 are invariably involved and, if a case arises where they are not, there is unlikely to be a major problem anyway. Aside from the fact that the ICISS’s ‘code of conduct’ was highly idealistic, it was dropped from the 2005 World Summit and, as discussed later, the General Assembly debate on R2P in 2009 was notable for the absence of support for unilateral inter-vention and specifi c proposals for reform in this area. The reassertion of the Security Council’s role as sole legitimate authority empowered to authorize intervention, in both the World Summit Outcome Document and the 2009 General Assembly debate, means that the conditional endorsement of unilateral interventions outside of the Security Council tacitly advocated in the ICISS report has been rejected. As Nicholas Wheeler noted, the Outcome Document

fails to address the fundamental question of what should happen if the Security Council is unable or unwilling to authorize the use of force to prevent or end a hu-manitarian tragedy, and secondly, it fails to address the question of how this norm could be better implemented to save strangers in the future.53

Therefore, neither the original ICISS report, the World Summit Outcome Document, nor the 2009 General Assembly debate addressed the fundamental question – which fuelled the controversy over NATO’s intervention in the fi rst place – namely ‘what happens in the event of Security Council paralysis; what authority do individual states have to unilaterally intervene?’ A recent (2008) research paper commissioned by the UK House of Commons on R2P succinctly noted: ‘It remains unclear whether in the event of Security Council paralysis, a unilateral intervention would prove legitimate or legal.’54

The original ICISS report’s threshold criteria use the term ‘large scale’. The ICISS stated, however, that it wished to ‘make no attempt to quantify “large scale” [as this] will not in practice generate major disagreement’.55 In fact, this indeterminacy can enable the P5 to block interventions by claiming that the thresholds have not been




breached, meaning that the determination of when to intervene continues to be based on political rather than legal or factual grounds.56 Regarding the version of R2P adopted at the 2005 World Summit, Evans noted, ‘The only disappointing omission … is the failure to adopt any criteria for the use of military force.’57 This is a highly signifi cant omission.

While these two issues are undoubtedly diffi cult to resolve, they cannot be fudged without fundamentally undermining the utility of any enquiry purporting to provide a solution to the problem posed by humanitarian intervention.58 The issue is contro-versial precisely because of these questions and therefore self-proclaimed attempts to resolve this issue logically must address these key sources of controversy.

Prevention and evasion

The evolution of R2P since the ICISS report is evidence of a pronounced shift in emphasis towards preventing humanitarian crises rather than halting them. While the original report did claim that prevention was ‘the single most important dimension of the responsibility to protect’ this assertion is questionable.59 First the report seems to contradict this claim by later stating: ‘The “responsibility to protect” implies above all else a responsibility to react to situations of compelling need for human protection.’60 Additionally, Bellamy notes that it is curious that the section on prevention, despite its ostensible importance, constitutes only 9 of the 85 pages of the ICISS report.61 Weiss described the ICISS’s ‘mumbling and stammering about prevention’ as ‘prepos-terous’ and ‘a superfi cially attractive but highly unrealistic way to try and pretend that we can fi nesse the hard issues of what essentially amounts to humanitarian inter-vention’. The concern with prevention, he claimed, ‘obscures the essence of the most urgent part of the spectrum of responsibility, to protect those caught in the crosshairs of war’.62 The ICISS states in the foreword to its report that it constitutes a ‘response’ to the question posed by Kofi Annan, namely, ‘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 affect every precept of our common humanity?’63 This question refers explicitly to the issue of responding to, not preventing, intra-state crises, and as the ICISS positions itself as a response to this question it is logical to expect responding to crises to be the focus. The ICISS report, for all its talk about the primary importance of prevention, and a chapter on ‘the responsibility to rebuild’, does predominantly focus on the question of response. It is striking, therefore, that the focus has gradually shifted from response to prevention since the report’s original publication.

Evans has claimed that prevention, not response, is the core idea behind R2P.64 Bellamy is more emphatic: ‘the overall aim of R2P’, he states, ‘has to be to reduce the frequency with which the protection of civilians from genocide and mass atrocities is dependent on the use of non-consensual force by outsiders’.65 The signifi cance of R2P, he claims, does not lie in its capacity to guide policy on responses to humani-tarian crises; rather the potential for R2P to make ‘a real difference’ lies ‘in reducing the frequency with which world leaders are confronted with the apparent choice




between doing nothing and sending in the Marines’.66 This interpretation of R2P is more interesting when one examines Bellamy’s views on the sections on prevention in the ICISS report. They are, he notes, ‘brief, confused and unoriginal’ and he writes, ‘I would go as far as to argue ... that the commission should rewrite its chapters on prevention and rebuilding’.67 This desire to rewrite these aspects of the report is curious – if these sections are fl awed how can it be that they constitute, according to Bellamy, the most important and potentially useful element of R2P? It is, as he stresses in his book, not the actual prescriptions that are so pregnant with potential, for he believes this detail is clearly fl awed, but rather it is the principle of prevention that is attractive. Discourse on confl ict prevention is not the sole preserve of R2P, and it is unclear, therefore, why, if Bellamy seeks to prevent intra-state crises, he feels it necessary to champion R2P when by his own admission the aspects of the ICISS report related to prevention are ‘brief, confused and unoriginal’. It would appear that there is a desire to maintain the brand name ‘responsibility to protect’/‘R2P’ while radically changing its content.

No one can dispute the basic premise that preventing mass atrocities is more desirable than halting them. Acknowledging this need to improve the existing mech-anisms for preventing mass atrocities should be tempered, however, by an attendant acknowledgement that there have already been myriad proposals put forward for preventing inter- and intra-state war.68 Indeed, in a 2003 article Bellamy criticized R2P’s discussion of prevention, noting: ‘The need to pay more attention, and more money, to prevention and post-confl ict rebuilding has long been identifi ed.’69 Add-itionally, preventative measures are highly unlikely to be 100 per cent effective, especially when it comes to man-made humanitarian crises. Human history is testi-mony to man’s propensity for violence and aggression and is peppered with inter- and intra-state violence; in the past 500 years war has been present three times more frequently than it has been absent.70 There is nothing in either our history or our contemporary condition which can reasonably be cited as evidence that we can con-trive some means by which large-scale intra-state crises can be prevented ‘once and for all’. As certain noted supporters of R2P realistically lament, ‘Mass starvation, rape and suffering will reappear as global security threats, and humanitarian inter-vention will continue to smoulder on the public policy agenda.’71 Conceiving of the four crimes which are the focus of the 2005 World Summit Outcome Document – genocide, war crimes, ethnic cleansing and crimes against humanity – as problems which can be eradicated, rather than as inevitable periodic eruptions which must be halted, is to falsely conceptualize these events as something akin to a preventable disease. Thinking in these terms strips intra-state atrocities of one of their key, if troubling, characteristics: systemic intra-state atrocities are the function of rational action carried out by groups and individuals fully aware of the consequences of their deeds. Smallpox has no consciousness, has no desire to kill. Perpetrators of mass atrocities and war often display, however, ‘a superabundance of analytic rationality’, as the mechanized slaughter of the Holocaust emphatically illustrated.72 If history is a guide, as surely it must be, then violence, perpetrated by individuals or states, is inevitable, and we must, therefore, adopt a dual strategy which certainly comprises




attempts to limit the occurrence of such acts, but also, crucially, to halt (and punish) them. Dealing with, for example, slavery or child pornography clearly must start with an analysis of the most effective means of preventing such crimes, but it would be foolhardy to neglect determining means by which such acts can be halted and per-petrators punished. It is folly to focus on prevention without also ensuring that there are robust and effective means by which the four crimes are halted. If R2P is now being championed as primarily an initiative aimed at preventing intra-state mass atrocities, then this constitutes a signifi cant alteration of its original raison d’être and an answer to a question that was not asked.73

Even aside from this, it is not at all clear that R2P articulates anything like an effective mechanism for preventing such eruptions. Bellamy, desirous that R2P is not overwhelmed and diluted by the enormously diverse issue that is the prevention of confl ict generally, seeks to limit R2P’s focus ‘only on the prevention of genocide, war crimes, ethnic cleansing and crimes against humanity’.74 While this certainly narrows the focus, one may well wonder whether preventing ‘genocide, war crimes, ethnic cleansing and crimes against humanity’ can reasonably be prefi xed with the word ‘only’.

People obey laws either because they are convinced of their legitimacy, because they are forced to do so or because they fear the consequences of not doing so.75 While we may be able to identify a large number of states, perhaps even a majority, that agree with the idea of respecting human rights internally and thus accept the legitimacy of a law on domestic human rights compliance, these are generally not the states which are going to commit egregious intra-state atrocities. It is those states run by governments that, for a variety of reasons, do not accept the legitimacy of international rules on intra-state human rights that are likely to commit intra-state mass atrocities. We are thus left with the latter two options with respect to dealing with this group, namely coercion or compliance through fear of punishment. If R2P is increasingly weakening its emphasis on contriving a means of effectively halting mass atrocities, then these two options are no longer available. Those who reject the legitimacy of international human rights norms cannot possibly feel compelled to comply with these rights if there is no mechanism for enforcement. Thus, shifting the emphasis of R2P away from enforcement to prevention is not only idealistic but liable to be counter-productive.

Nothing new

R2P can only reasonably be considered to offer a viable means of addressing the perennial dilemma posed by humanitarian intervention if it achieves at least one of two things: fi rst, if it provides for a new conception of sovereignty, specifi cally a means for protecting citizens from excessive oppression by their governments; and, second, if it outlines a novel framework for dealing with cases where governments do egregiously oppress their people. On both counts R2P fails.

The rise in concern for intra-state crises led to the emergence of a vocal critique of sovereignty. The violent implosion of a number of states in the early 1990s, and




particularly the genocide in Rwanda, led to calls for ‘something’ to be done in the face of the ‘tidal wave’ of humanitarian crises.76 The desire to ‘do something’ appeared to clash with the existing tenets of international law, and specifi cally the rights afforded to sovereign states. The sovereign inviolability of the state, as stipulated in the UN Charter, became widely portrayed as both anachronistic and morally unconscionable, and sovereignty has been often cited as a causal factor in the proli-feration of numerous humanitarian crises.77 According to Evans the debate on hu-manitarian intervention involves those arguing for the primacy of humanitarian values and those ‘defenders of the traditional prerogatives of state sovereignty, who insist that internal events were none of the rest of the world’s business’.78 Regarding sovereignty, he states, ‘In the history of ideas there have been few that have prevailed to more destructive effect.’79 In a 2008 article in International Relations Evans went even further, stating, ‘for an insanely long time ... the view had prevailed that state sovereignty is a licence to kill’.80

Yet the idea that R2P constitutes a revolutionary reconceptualization of sover-eignty only makes sense if one adheres to a caricature of pre-R2P sovereignty. The codifi cation of sovereign equality and inviolability in the Charter can be conceived, at least to some extent, as a progressive development insofar as it constituted a means by which legal entitlements, previously almost exclusively enjoyed by Western powers, were universalized, though certain institutionalized hierarchies remained.81 The prohibition on external interference thus derives from the normative notion that citizens within states should be free to determine their own political system and the dubious record of benevolent interventionism, rather than ‘evil attempts to block the efforts of good humanitarians’.82 Louis Henkin argues that those tenets of inter-national law that prohibit unilateral humanitarian intervention,

do not refl ect a conclusion that the ‘sovereignty’ of the target state stands higher in the scale of values of contemporary international society than the human rights of its inhabitants to be protected from genocide and massive crimes against humanity … rather they refl ect, above all, the moral-political conclusion that no individual state can be trusted with authority to judge and determine wisely.83

The normative concept of sovereignty, and its current legal status, do not, therefore, preclude collective intervention authorized by an internationally recognized body. Indeed, the UN Security Council is empowered to act under Chapter VII to inter-vene if a particular crisis is deemed to constitute a threat to international peace and stability, and thus the Charter has always allowed for external intervention under certain circumstances. While the number of Chapter VII-mandated interventions increased signifi cantly in the post-Cold War era, the Security Council’s record has, by virtue of the P5’s politicization, been selective and inconsistent. Thus, as Chesterman has noted, it is the lack of will, not the legal status of sovereignty, that has been the major cause of inertia in the face of egregious intra-state violence.84

At the conclusion of the 2005 World Summit Tony Blair declared, ‘For the fi rst time at this summit we are agreed that states do not have the right to do what they will




within their own borders.’85 This is simply false. Since at least the 1945 Nuremberg trials it has been clear that states accepted that they could not do ‘what they will’ to their own citizens. Many legal developments during the Cold War, such as the Genocide Convention, the Universal Declaration of Human Rights and the Inter-national Covenant on Civil and Political Rights, outlined the responsibilities states had towards their citizens. Thus even prior to the post-Cold War era states could not reasonably claim a legal entitlement to do whatever they wanted to their own citizens. Cathal Nolan notes that even those states that emerged from decolonization accepted limitations on their sovereign inviolability and, ‘“Westphalian fundamentalism” (in the form of claims to a radical right of non-intervention in one’s “internal affairs”) is seldom invoked’.86 The idea, therefore, that prior to the emergence of R2P states believed they were legally and morally entitled to do whatever they wanted to their citizens is simply not true.

Additionally, Bellamy’s analysis of the developing world’s reaction to NATO’s intervention in Kosovo notes that the debate ‘revealed a broad constituency of states that were prepared to acknowledge that sovereignty did not give states a blank cheque to treat their citizens however they liked’.87 In the aftermath of NATO’s inter-vention, the G-77, representing 133 developing world states, issued the often quoted statement: ‘We reject the so-called “right” of humanitarian intervention, which has no legal basis in the United Nations Charter or in general principles of international law.’88 This objection neither rejects the moral claims made by NATO nor does it assert the primacy of complete sovereign inviolability. In this instance the G77 rejected humanitarian intervention because it has no place in international law, and as such can be abused and selectively applied. This suggests, therefore, that the G77 may countenance humanitarian intervention if it was incorporated into, and con-strained and regulated by, international law. Indeed, in its fi ndings the ICISS noted, ‘even in states where there was the strongest opposition to infringements on sover-eignty, there was a general acceptance that there must be limited exceptions to the non-intervention rule for certain kinds of emergencies’.89

During the 2009 General Assembly debate Brazil’s ambassador to the UN, Maria Luiza Ribeiro Viotti, stated:

In Brazil’s view, [R2P] it is not a principle proper, much less a novel legal pre-scription. Rather, it is a powerful political call for all States to abide by legal obligations already set forth in the Charter, in relevant human rights conventions and international humanitarian law and other instruments.90

Thus, as Brazil and many other states noted, the variant of R2P accepted by all states at the 2005 World Summit, which the General Assembly broadly recommitted itself to in 2009, did not constitute a new set of provisions, but rather amounted to a restatement of existing law. As Bellamy observed, the doctrine of sovereignty as responsibility is ‘neither new ... nor radical’.91 The origin of the term can be traced back to the work by Francis Deng and Roberta Cohen on internally displaced persons in the 1990s.92 Deng, currently UN Special Adviser on the Prevention of Genocide




and a vocal supporter of the basic principle underpinning R2P, stated in response to a question about the novelty of the variant of R2P adopted in 2005 and re-endorsed in 2009:

perhaps there’s nothing new here ... It’s almost a restatement of resolve and perhaps a rearrangement of our tools or a mobilisation of the relevant tools and rele-vant actors, to be alert to what needs to be done and to be mobilised to do it.93

What is clear, however, is that while since at least 1945 states have accepted in principle a number of treaties and endorsed many General Assembly resolutions and grandiose statements related to the protection of citizens, in practice these com-mitments have been ignored.94 This all points to the fact that the key issue is not get-ting states to agree that they have a responsibility to protect their own citizens – this has long been accepted, though certainly not adhered to – but rather contriving some means by which states can be compelled to abide by the principles they have endorsed but often fl outed; hence the need for a focus on innovative means of enforcement rather than generating agreement around principles already accepted.

What was innovative about the ICISS report was that it stated that if a state failed to meet its own responsibilities the responsibility to protect transferred to the ‘inter-national community’. Yet, crucially, the prescriptions advanced by the ICISS do not suggest a means by which this latter responsibility can be actualized. The ICISS report did not suggest specifi c reforms to the Security Council that would compel it to act, nor does it support the creation of a new organ – such as a UN military force – that would act whenever humanitarian crises erupted. The ICISS’s proposal creates no more than what Franck Berman describes as, ‘a discretionary entitlement’.95 This discretionary entitlement already exists in Chapter VII of the Charter. It is not clear why the ICISS’s discretionary entitlement should be free from the politicization and inconsistency that has characterized the Security Council’s application of its existing legal provisions. The one aspect of the ICISS report that addresses this is the ‘code of conduct’. One need not be a cynic to wonder about the effectiveness of this voluntary code premised on the good word of the P5, and in any event this code of conduct was dropped in 2005.

At the World Summit the two major goals of adherents to the original ICISS report related to enforcement – that of securing the permanent fi ve member’s endorsement of an obligation to act, and the agreement to remove the veto – were not incorporated into the Outcome Document.96 Additionally the goal of further strengthening the cap-acity of states to legitimately act outside of the Security Council was unsuccessful, as the endorsement of the basic tenets of R2P in 2005 was made conditional on the restatement of the Security Council’s primacy. This reversion to Security Council primacy constituted for some a ‘step backward’97 and, because many of the ICISS report’s central tenets were ‘abandoned’, means that there is a very real potential that humanitarian crises on the scale of Rwanda and Darfur are likely to be ignored again in the future.98 The United States in particular distanced itself from any initiatives at the World Summit designed to create a legal duty to intervene, and its support for the




fi nal wording was explicitly and empathetically conditional on the maintenance of discretion.99 Thus the seminal question regarding the decision to use force remains outstanding. Indeed, Bellamy warns:

decisions about intervention will continue to be made in an ad hoc fashion by pol-itical leaders balancing national interests, legal considerations, world opinion, perceived costs and humanitarian impulses – much as they were prior to the advent of R2P.100

The fact is that the manner in which large-scale intra-state humanitarian crises are dealt with today, and will be dealt with for the foreseeable future, is essentially exactly the same as would have been the case 20 years ago, except that the term ‘respon-sibility to protect’ would abound in contemporary discussions. Twenty years ago such a crisis would have potentially generated international media attention and would have gradually moved on to the agenda of the General Assembly and the Security Council. The state deemed to be the aggressor would have invariably denied the charges, other states would have disputed this defence and ultimately the Security Council would have decided whether or not to take action.101 Exactly the same scenario would take place today should such a crisis erupt. The same controversy sur-rounding the politicization of the P5 would arise, the dispute about the legality of unilateral action would re-emerge and onlookers would decry the unedifying obfuscation. It is not the case that 20 years ago states charged with orchestrating egregious internal aggression would have claimed the right to do whatever they wanted; they may have claimed that the issue was ‘an internal matter’ but this is not the same as saying ‘we admit we are doing these things and we claim the right to do them’. The idea that today’s discourse is qualitatively different because R2P alone has forced states to accept that there are limits to what they can do to their own people is simply not true. Likewise, there is nothing about R2P to suggest that its emergence has altered the decision-making process by which the P5 decide how to respond to a particular situation, apart from altering the rhetoric employed. Today’s debates on intra-state crises may be peppered with references to R2P, but this semantic change is clearly of little use to those suffering.

The ‘humanitarian impulses’ of world leaders have become a key focus of R2P advocates keen to address the manifest gap between humanitarian rhetoric and humanitarian action. Indeed, to a striking extent advocates of R2P have come to pre-dicate its entire utility on changing the disposition of statesmen. If political will evaporates, Bellamy argues, the proposal will falter.102 Evans asserts that his belief in R2P is sustained by his conviction that ‘good people, good governments, and good governance will eventually prevail over bad’.103 He acknowledges, ‘Without the exercise of political will, by the relevant policy makers at the relevant time, almost none of the things for which this book has argued will actually happen.’104 It is surely reasonable to have reservations about R2P if it is so heavily dependent on some-thing as transitory as political will and the disposition of statesmen, and based on vague terms such as ‘good people, good governments, and good governance’.




The depressing litany of what Chesterman describes as ‘inhumanitarian non-intervention’105 is a function of a lack of political will, and this, rather than any pol-itical or legal restrictions, was the cause of the collective inertia in the face of the Rwandan genocide.106 Why this reluctance to accept responsibility for the welfare of citizens suffering egregious human rights violations in other states should now dissipate is unclear.

It is perhaps comforting to think that eloquent appeals to governments to ‘do something’ will be effective, but there is little empirical basis to suggest this will be the case, and since 1945 many grandiose declarations – most obviously ‘never again!’ in relation to the Holocaust and genocide – have been of little demonstrable utility in practice. When the World Summit Outcome Document was agreed in 2005, Jack Straw, then UK Foreign Secretary, stated, ‘If this new responsibility had been in place a decade ago, thousands in Srebrenica and Rwanda would have been saved.’107 To the hundreds of thousands enduring what the UN described as a ‘reign of terror’ in Darfur at the time of the World Summit in 2005 this bold statement will doubtless have seemed darkly ironic.108 Indeed, in 2005, when asked about the international response to Darfur, Kofi Annan stated, ‘We were slow, hesitant, uncaring and we had learnt nothing from Rwanda.’109

Conclusion

Evans notes that his ongoing support for R2P and the basis for his activism rest on his belief in ‘the impossibility of ignoring the cries of pain and distress of our fellow human beings’.110 This moral concern – certainly not peculiar to Evans – is a basic principle with which I wholeheartedly agree. To read the reports of violence and slaughter in Rwanda in 1994, and more recently in Darfur since 2003, without con-cluding that there is a need to reform the international system so that crises of this scale and depravity are addressed quickly, impartially and consistently, and ideally through an international body as opposed to individual states or coalitions of states, is, whatever the intellectual spin, a rejection of our common humanity. It is, there-fore, not true to present the debate on R2P as comprising enlightened moralists versus cold-hearted, recalcitrant purveyors of the status quo, as is unfortunately com-monly asserted by supporters of R2P.111 The fact that one agrees that – to employ a shibboleth – ‘something must be done’ does not mean that one has to support R2P.

An assessment of the achievements of R2P since 2001 must be based on the goals set by the ICISS and its supporters. The ICISS noted in its mission statement that it was motivated by the question, posed by Kofi Annan in the wake of NATO’s divisive intervention in Kosovo, ‘how should we respond ... to gross and systematic violations of human rights that affect every precept of our common humanity?’ and the ICISS articulated a commitment to ‘prevent future Rwandas’.112 It is diffi cult to conceive how the contemporary variant of R2P endorsed in 2005 and reasserted in 2009 can possibly achieve this, given that, in effect, it does not alter either the existing struc-ture of international law regarding sovereign responsibility, the authority to use force,




or the thresholds for intervention, and is ultimately based on a highly idealistic belief in the capacity of moral pressure to alter the disposition of the world’s states. The 2005 World Summit may have been heralded as groundbreaking by some R2P supporters, but an analysis of its actual content reveals that the two paragraphs on R2P contain little beyond anodyne aspirations. Ultimately the Outcome Document carries little, if indeed any, legal weight,113 and could well be the latest in a long line of grandiose declarations made by states that have had little infl uence on actual inter-national relations. For example, have the radical provisions of the Vienna Declaration and Programme of Action endorsed by all the world’s states in 1993 had any infl uence on global affairs since? The United States Ambassador to the UN who negotiated the World Summit Outcome Document stated, ‘I plan to never read it again. I doubt many others will either.’114

The provisions on R2P articulated in the World Summit Outcome Document have been subsequently invoked by the Security Council – such as in Resolution 1674 in April 2006 on armed confl ict, and Resolution 1706 in August 2006 on Darfur – and there is some evidence that the international diplomacy focused on Kenya in 2008 following the violence that broke out after the 2007 presidential results were announced on 30 December, employed the language of R2P.115 Nonetheless, references by the Security Council to R2P, and the use of the term in diplomatic nego-tiations, do not in themselves constitute evidence of the term’s manifest utility. The Security Council has often indicated its support for various declarations on human rights although it has failed to take concrete action on the basis of these provisions. Additionally, the use of R2P in Kenya can only be considered a causal factor in the eventual negotiated settlement if the absence of the ‘norm’ had precluded inter-national negotiators from applying pressure to the Kenyan authorities on the basis that they had a duty to halt the violence. Clearly this is not the case, as in many inst-ances prior to the emergence of R2P international pressure was brought to bear on governments involved in internal confl icts.

While many NGOs supportive of R2P also heralded the 2009 debate in the General Assembly as ‘a success’,116 an analysis shows that while there was broad support for the variant of R2P adopted at the 2005 World Summit, this was invariably prefaced by a restatement of commitment to the UN Charter and the primacy of the UN, i.e. the status quo.117 Reasserting existing provisions of international law and restating previously articulated moral commitments does not constitute a new development likely to address the primary barrier to the timely response to egregious intra-state crises. As the Brazilian ambassador to the UN noted during the General Assembly debate in 2009, ‘The tragedy in Rwanda ... took place neither because authorities were unaware of their legal obligation to protect their populations nor because the international community did not have the means to stop them.’118 Thus, without changing existing laws or enforcement mechanisms, the R2P we have today does not signifi cantly reform the discredited system it was originally established to transform.

R2P is undoubtedly a great slogan, though little else. In 2003 Bellamy wrote, ‘In the end, for all the soul searching of panel members and extensive research and




consultation, ICISS leaves us very close to where we started.’119 What has happened in the intervening years to convince Bellamy that R2P now constitutes ‘an active policy agenda with real clout’120 is unclear, aside from his conviction that R2P can be used to spearhead reform in the area of preventative action. As noted earlier, Bellamy is highly critical of the ICISS’s own proposals on prevention and it appears, therefore, that the utility of R2P in this instance stems from the goodwill built up by its brand image rather than the nature of its prescriptions. The shift in focus to prevention constitutes the articulation of a set of proposals for addressing an aspect of the issue which did not prompt the ICISS to convene in the fi rst place. The key issue that prompted the establishment of the ICISS was the question of response, yet Bellamy admits ‘little tangible progress has been made on the question of how to make decisions about the use of force for R2P purposes nor is future progress likely’.121 As Ban Ki-moon noted in his 2009 report on R2P, ‘the responsibility to protect does not alter, indeed it reinforces, the legal obligations of Member States to refrain from the use of force except in conformity with the Charter’.122 He further noted that the obligations contained in the Outcome Document regarding R2P ‘are fi rmly embedded in pre-existing, treaty-based and customary international law’.123 Given that, as Ban Ki-moon notes, R2P creates no new obligations and refl ects pre-existing international law, it is diffi cult to understand why state behaviour will alter as a result of the emergence of R2P.

Gerrit Gong noted that during the nineteenth century European states developed ‘standards of civilization’ which by 1905 had fi ve basic elements. These included the idea that ‘civilized states had to guarantee basic rights, such as life, dignity, pro-perty, and freedom of travel, especially to foreign nationals’, and also that civilized states were ‘expected to conform to the accepted norms of international society, such as eschewing slavery or polygamy’.124 While these standards are in themselves not especially nefarious, the subjective and selective manner in which they were applied facilitated colonialism and did little to actually improve the lives of civilians around the world. The standards were vague and were not tied to a consistent, im-partial enforcement regime. R2P, despite the exultations of its supporters, evidences a strikingly similar character.

Notes

1 There are three paragraphs listed under the heading ‘Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’, though paragraph 140 does not mention ‘responsibility to protect’.

2 Thomas Weiss, Humanitarian Intervention (London: Polity, 2007), p. 88; Alex Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities (London: Polity, 2009), p. 2; Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All (Washington DC: Brookings Institution, 2008), p. 39; Gareth Evans, ‘The Responsibility to Protect: An Idea Whose Time has Come ... and Gone?’, International Relations, 22(3), 2008, p. 284.

3 Mohammed Ayoob, ‘Humanitarian Intervention and State Sovereignty’, International Journal of Human Rights, 6(1), 2002, pp. 81–102; David Chandler, ‘The Responsibility to Protect? Imposing the “Liberal Peace”’, International Peacekeeping, 11(1), 2004, pp. 59–81.




4 Independent International Commission on Kosovo, Kosovo Report (Oxford: Oxford University Press, 2000), p. 4.

5 Independent International Commission on Kosovo, Kosovo Report, p. 186. 6 Simon Chesterman, Just War or Just Peace? (Oxford: Oxford University Press, 2002), p. 227. 7 International Commission on Intervention and State Sovereignty, The Responsibility to Protect

(Ottawa: International Development Research Centre, 2001), p. xiii. 8 ICISS, The Responsibility to Protect, pp. 19–27. 9 ICISS, The Responsibility to Protect, pp. 39–45.10 ICISS, The Responsibility to Protect, p. 29.11 ICISS, The Responsibility to Protect, p. 29.12 ICISS, The Responsibility to Protect, p. 32.13 ICISS, The Responsibility to Protect, pp. 48–9.14 ICISS, The Responsibility to Protect, p. 51.15 ICISS, The Responsibility to Protect, p. 53.16 ICISS, The Responsibility to Protect, p. 55.17 Bellamy, Responsibility to Protect, p. 195.18 Alex Bellamy, ‘Whither the Responsibility to Protect? Humanitarian Intervention and the 2005

World Summit’, Ethics and International Affairs, 20(2), 2006, p. 151.19 Neil Macfarlane, Caroline Thielking and Thomas Weiss, ‘The Responsibility to Protect: Is Anyone

Interested in Humanitarian Intervention?’, Third World Quarterly, 25(5), 2004, p. 982.20 Jennifer Welsh, ‘Conclusion: The Evolution of Humanitarian Intervention in International Society’,

in Jennifer Welsh (ed.), Humanitarian Intervention and International Relations (Oxford: Oxford University Press, 2006), pp. 185 and 210.

21 Bellamy, ‘Whither the Responsibility to Protect?’, pp. 151–2.22 Macfarlane et al., ‘The Responsibility to Protect’, p. 984.23 Weiss, Humanitarian Intervention, p. 125.24 Nicholas Wheeler, ‘A Victory for Common Humanity? The Responsibility to Protect after the 2005

World Summit’, Journal of International Law and International Relations, 2(1), 2005, p. 99.25 High Level Panel on Threats Challenges and Change, A More Secure World: Our Shared

Responsibility, 2 December 2004, available at: www.un.org/secureworld/report.pdf, p. 17 (accessed May 2009).

26 High Level Panel on Threats Challenges and Change, A More Secure World, p. 66.27 High Level Panel on Threats Challenges and Change, A More Secure World, p. 80.28 Bellamy, ‘Whither the Responsibility to Protect?’, p. 155.29 Michael Byers, ‘High Ground Lost on UN’s Responsibility to Protect’, Winnipeg Free Press, 18

September 2005.30 Bellamy, ‘Whither the Responsibility to Protect?’, p. 153.31 See, Wheeler, ‘A Victory for Common Humanity?’32 Weiss, Humanitarian Intervention, p. 117.33 Evans, The Responsibility to Protect, p. 47.34 Evans, The Responsibility to Protect, p. 56.35 Evans, The Responsibility to Protect, p. 24136 Bellamy, Responsibility to Protect, p. 3.37 ICISS, The Responsibility to Protect, pp. 16–18.38 Ayoob, ‘Humanitarian Intervention and State Sovereignty’, p. 85.39 Chandler ‘The Responsibility to Protect? Imposing the “Liberal Peace”’, p. 75.40 Aidan Hehir, Humanitarian Intervention after Kosovo: Iraq, Darfur and the Record of Global Civil

Society (Basingstoke: Palgrave Macmillan, 2008), pp. 59–65.41 See Aidan Hehir, Humanitarian Intervention: An Introduction (Basingstoke: Palgrave Macmillan,

2010), pp. 15–16.42 Weiss, Humanitarian Intervention, p. 37.43 Evans ‘The Responsibility to Protect: An Idea Whose Time has Come ... and Gone?’, pp. 291–2.44 Weiss, Humanitarian Intervention, p. 52.45 Simon Chesterman, ‘Hard Cases Make Bad Law’, in Anthony Lang (ed.), Just Intervention

(Washington DC: Georgetown University Press, 2003), p. 54.46 David Chandler, ‘Unravelling the Paradox of “The Responsibility to Protect”’, Irish Studies in

International Affairs, 20, 2009, pp. 27–39.47 Alex Bellamy, ‘Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian

Intervention after Iraq’, Ethics and International Affairs, 19(2), 2005, p. 45.




48 Alex Bellamy, ‘Kosovo and the Advent of Sovereignty as Responsibility’, Journal of Intervention and Statebuilding, 3(2), 2009, pp. 163–84.

49 Chesterman, Just War or Just Peace?, p. 5.50 ICISS, The Responsibility to Protect, pp. 54–5.51 Bellamy, Responsibility to Protect, p. 54.52 Bellamy, Responsibility to Protect, p. 63.53 Wheeler, ‘A Victory for Common Humanity?’, p. 102.54 Adèle Brown, ‘Reinventing Humanitarian Intervention?: Two Cheers for the Responsibility to

Protect’, House of Commons Library Research Paper 08/55, International Affairs and Defence Section, 17 June 2008, p. 3. For an analysis of the legal status of humanitarian intervention since NATO’s intervention in Kosovo, see Aidan Hehir, ‘NATO’s Humanitarian Intervention in Kosovo: Precedent or Aberration?’, Journal of Human Rights, 8(3), 2009, pp. 245–64.

55 ICISS, The Responsibility to Protect, p. 33.56 Bellamy, ‘Whither the Responsibility to Protect?’, pp. 148–9.57 Evans, The Responsibility to Protect, p. 48.58 Of course, the ICISS and many of R2P’s most vocal supporters have stressed that R2P is about more

than humanitarian intervention. While this is true, it is disingenuous to claim that the controversy surrounding humanitarian intervention was not the original and primary impetus for the ICISS report.

59 ICISS, The Responsibility to Protect, p. xi.60 ICISS, The Responsibility to Protect, p. 29 (my emphasis).61 Bellamy, Responsibility to Protect, p. 65.62 Weiss, Humanitarian Intervention, p. 104.63 ICISS, The Responsibility to Protect, p. vii.64 Evans, The Responsibility to Protect, p. 56.65 Bellamy, Responsibility to Protect, p. 198.66 Bellamy, Responsibility to Protect , p. 3.67 Bellamy, Responsibility to Protect, pp. 52–3.68 See, for example, David Hamburg, Preventing Genocide (Boulder, CO: Paradigm, 2008).69 Alex Bellamy, ‘Humanitarian Intervention and the Three Traditions’, Global Society, 17(1), 2003,

pp. 6–7.70 John Weltman, World Politics and the Evolution of War (Baltimore, MD: Johns Hopkins University

Press, 1995), pp. 1–2. Indeed, there is evidence that the very evolution of man is a function of con-fl ict between the Cro-Magnons and the Neanderthals, leading Roland Wright to wonder whether as a species we are the benefactors of genocide. See Roland Wright, A Short History of Progress (Edinburgh: Canongate, 2006), p. 25.

71 Macfarlane et al., ‘The Responsibility to Protect’, p. 986.72 Michael Howard, The Causes of War and Other Essays (Cambridge, MA: Harvard University Press,

1984), pp. 14–15.73 Kofi Annan’s question – cited by the ICISS as its inspiration – explicitly states ‘how should we

respond to a Rwanda, a Srebrenica’. ICISS, The Responsibility to Protect, p. vii (my emphasis).74 Bellamy, Responsibility to Protect, p. 101.75 Andrew Hurrell, ‘Legitimacy and the Use of Force: Can the Circle be Squared?’, in D. Armstrong,

T. Farrell and B. Maiguashca (eds), Force and Legitimacy in World Politics (Cambridge: Cambridge University Press, 2005), p. 16.

76 Nicholas. Wheeler, ‘Agency, Humanitarianism and Intervention’, International Political Science Review, 18(1), 1997, p. 9.

77 See Stanley Hoffmann, ‘Intervention: Should it Go On? Can it Go On?’, in Deen Chatterjee and Don Scheid (eds), Ethics and Foreign Intervention (Cambridge: Cambridge University Press, 2003), p. 22; Jarat Chopra and Thomas Weiss, ‘Sovereignty Is No Longer Sacrosanct’, Ethics and International Affairs, 6, 1992, p. 95; Fernando Tesón, ‘Collective Humanitarian Intervention’, Michigan Journal of International Law, 17, 1996, p. 342; A. Linklater, ‘The Good International Citizen and the Crisis in Kosovo’, summary in Albrecht Schnabel and Ramesh Thakur (eds), Kosovo and the Challenge of Humanitarian Intervention (New York: United Nations University Press, 2000).

78 Evans, The Responsibility to Protect, p. 3.79 Evans, The Responsibility to Protect, p. 16.80 Evans, ‘The Responsibility to Protect: An Idea Whose Time has Come ... and Gone?’, p. 284.81 See Gerry Simpson, Great Powers and Outlaw States (Cambridge: Cambridge University Press,

2004).




82 Anthony Lang, ‘Humanitarian Intervention: Definition and Debates’, in Lang (ed.), Just Intervention, p. 2. Likewise Jean Cohen notes that, for critics, sovereignty signifi es ‘a claim to power unrestrained by law and a bulwark against legal, political, and military action necessary to enforce human rights’. She contends, however, that the arguments presented by many of the critics of sovereignty can only be sustained by presenting an absolutist conception of sovereignty which, Cohen maintains, ‘has long since been abandoned’. Jean Cohen, ‘Whose Sovereignty? Empire Versus International Law’, Ethics and International Affairs, 18(3), 2004, pp. 12–13.

83 Louis Henkin, ‘Kosovo and the Law of “Humanitarian Intervention” ’, American Journal of Inter-national Law, 93(4), 1999, pp. 824–5.

84 Chesterman, ‘Hard Cases Make Bad Law’, p. 54. 85 David Fisher, ‘Humanitarian Intervention’, in Charles Reed and David Ryall (eds), The Price of

Peace (Cambridge: Cambridge University Press, 2007), p. 109. 86 Cathal J. Nolan, ‘Great Powers and International Society’, in William Bain (ed.), The Empire of

Security and the Safety of the People (London: Routledge, 2006), pp. 82–3. 87 Bellamy, ‘Kosovo and the Advent of Sovereignty as Responsibility’, p. 164. 88 Group of 77 South Summit, ‘Declaration of the South Summit’, Havana, Cuba, 10–14 April

2000, para. 54. Available at: www.g77.org/summit/Declaration_G77Summit.htm (accessed 22 February 2010).

89 ICISS, The Responsibility to Protect, p. 31. 90 Maria Luiza Ribeiro Viotti, ‘Brazil – Statement at the GA Debate on The Responsibility to Protect’,

23 July 2009 (my emphasis), available at: www.responsibilitytoprotect.org/Brazil_ENG.pdf (accessed October 2009).

91 Bellamy, Responsibility to Protect, p. 20. 92 Alex Bellamy, ‘Kosovo and the Advent of Sovereignty as Responsibility’, in Aidan Hehir (ed.),

Kosovo, Intervention and Statebuilding (London: Routledge, 2010), p. 41. 92 Interview between author and Francis Deng, New York, 20 August 2009. 94 David Armstrong, Theo Farrell and Helene Lambert, International Law and International Relations

(Cambridge: Cambridge University Press, 2007), p. 157. 95 Frank Berman, ‘Moral Versus Legal Legitimacy’, in Reed and Ryall, The Price of Peace, p. 161. 96 Bellamy, ‘Whither the Responsibility to Protect?’, p. 153. 97 Weiss, Humanitarian Intervention, p. 117. 98 Bellamy, ‘Whither the Responsibility to Protect?’, pp. 145–6. 99 Hehir, Humanitarian Intervention after Kosovo, pp. 71–2.100 Bellamy, Responsibility to Protect, p. 3.101 Security Council unanimity would arguably have been more diffi cult to achieve 20 years ago than

today but this was a function of the Cold War rather than contemporary consensus on R2P.102 Bellamy, Responsibility to Protect, p. 119.103 Evans, The Responsibility to Protect, p. 7.104 Evans, The Responsibility to Protect, p. 223.105 Chesterman, ‘Hard Cases Make Bad Law’, p. 54.106 Nicholas Wheeler, ‘The Humanitarian Responsibilities of Sovereignty’, in Welsh, Humanitarian

Intervention and International Relations, p. 36.107 Quoted in Wheeler, ‘A Victory for Common Humanity?’, p. 102.108 UN High Commissioner for Human Rights, ‘Report of the United Nations High Commissioner

for Human Rights and Follow-Up to the World Conference on Human Rights: Situation of Human Rights in the Darfur region of Sudan’, E/CN.4/2005/3, 7 May, 2004, p. 6: available at www.unhchr.ch/huridocda/huridoca.nsf/AllSymbols/863D14602AA82CAEC1256EA80038E268 (accessed 22 February 2010).

109 Fisher, ‘Humanitarian Intervention’, p. 103.110 Evans, ‘The Responsibility to Protect: An Idea Whose Time has Come ... and Gone?’, p. 296.111 See, for example, Evans, The Responsibility to Protect, p. 3.112 ICISS, The Responsibility to Protect, pp. vii and xiii.113 See Aidan Hehir, ‘NATO’s Humanitarian Intervention in Kosovo: Precedent or Aberration?’,

Journal of Human Rights, 8(3), 2009, pp. 245–64.114 Bellamy, Responsibility to Protect, p. 92.115 According to Thomas Weiss, invoking R2P in 2008 meant that ‘the embarrassment value in Kenya

was substantial’, providing external actors with greater leverage to compel the government to fi nd a diplomatic solution to the crisis. Interview with Thomas Weiss, New York, 19 August 2009. See also Evans, ‘The Responsibility to Protect: An Idea Whose Time has Come ... and Gone?’, p. 287.




116 So described by the International Coalition for the Responsibility to Protect; see: www.responsibilitytoprotect.org/index.php/component/content/article/35-r2pcs-topics/2626-un-resolution-on-the-responsibility-to-protect (accessed December 2009).

117 In particular see the statement by the Philippines and the Non-Aligned Movement, available at: www.responsibilitytoprotect.org/index.php/component/content/article/35-r2pcs-topics/2493-general-assembly-debate-on-the-responsibility-to-protect-and-informal-interactive-dialogue- (accessed December 2009).

118 Ribeiro Viotti, ‘Brazil – Statement at the GA Debate on the Responsibility to Protect’.119 Bellamy, ‘Humanitarian Intervention and the Three Traditions’, p. 7.120 Bellamy, Responsibility to Protect, p. 96.121 Bellamy, Responsibility to Protect, p. 147.122 Ban Ki-moon, ‘Implementing the Responsibility to Protect: Report of the Secretary-General’,

A/63/677, 12 January, 2009, p. 5.123 Ban Ki-moon, ‘Implementing the Responsibility to Protect’, p. 12.124 Gerrit Gong, ‘Standards of Civilisation Today’, in Mehdi Mozaffari (ed.), Globalization and

Civilizations (London: Routledge, 2002), p. 80.



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