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LSE: Public lectures and events
State Violence and the Responsibility to Protect: the role of the international community
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- [00:00]
A
I'm Chetan Bart. I'm director of the Centre for the Study of Human Rights at the lse and I'd like to warmly welcome you to this event hosted by the Centre on State Violence and the Responsibility to Protect the Role of the International Community. And I'd like to thank you very much indeed for joining us this evening. Now, the theme of this evening represents an area that's of considerable interest in some senses because of Libya, possibly in relationship to Syria, of vital interest to those who are concerned about human rights. In September 2005, 191 heads of state and government who were gathered at the United Nations General assembly formally undertook the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. And this was a landmark agreement, welcomed by some as a contribution to prevent future mass atrocities. But for others, it was a controversial agreement for various reasons. I think in the human rights community there were a range of criticisms about the processes by which this was undertaken, and also because it was potentially seen, whether within the UN framework or outside of it, as a license potentially for military intervention by states that could be selective or possibly linked in the future to national interest, rather than concern with protecting international human rights as such. Now, this event will consider what was agreed in 2005 and examine its implementation at the international level, in particular in crises such as Libya, which for some has been or feels like a test case for what is referred to as R2P. And this panel will also address present and future challenges to the evolving concept of R2P. I'm therefore honoured and delighted to be able to introduce to you some key figures in this debate. Firstly, Professor Sir Adam Roberts, who is President of the British Academy and Emeritus professor of International Relations at the University of Oxford. And his books include, edited with a number of authors, the United Nations Security Council in War the Evolution of Thought and practice since 1945, which is published by Oxford University Press in 2008. And he tells me he was also at the LSE for some 13 years in the Department of International Relations, during which time there were discussions about the forms of intervention or state intervention, perhaps similar or different to the ones that are happening now. Next, I'd like to introduce Mr. Ignacio Lanos, who's a diplomat from Chile who joined the Foreign Service of his country in 1987. Now, in 2005, he was a member of the Chilean team that negotiated at the United nations the World Summit outcome, a document which consecrated the notion of responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. He's also been Councillor of the Embassy of Chile in the United Kingdom since February 2010. And I'd especially like to thank Mr. Lanos because it was through discussions with him initially last year that we thought it would be a good idea to organize this particular event on R2P. We noticed that there are a number of events now being organized around the Responsibility to protect, including one that's happening at this moment. We're very grateful that it was happening at the University of York rather than here, so we have a nice audience. And our third speaker is our very own Dr. Chaloka Bhiani, who's Senior Lecturer in Law at the LSE and UN Special Rapporteur on the Human Rights of Internally Displaced Persons. And he's acted as legal advisor, consultant and expert to a wide range of bodies which have included the Office of the High Commissioner for Human Rights, the Office of the High Commissioner on Refugees, the World Health Organization, United Nations Population Fund, United Nations Development Fund for Women, European Union, the Commonwealth Secretariat, and the African Union. And more recently, Dr. Bayani has drafted, been involved in drafting and negotiating the adoption of peace Treaties by the 11 Core Member States of the International Conference on the Great Lakes in East and Central Africa. Now, just to tell you quickly about the format of this evening, each speaker will give a Talk for about 15 or 20 minutes, after which there'll be plenty of time for questions and discussion, though we also have to aim to finish this event just before 8 o', clock, otherwise I'll get into trouble with LSE security. Now the event is being recorded and a podcast of the event will be, if the technology works, will be made available online, and if you feel desperate to tweet either during the event or after it. This event has a Twitter hashtag which is LSER2P. So please feel very free to tweet your comments. May I ask you then to extend a welcome to all of our speakers? And may I ask Saradom Roberts to begin?
- [05:39]
B
Ladies and gentlemen, the chair was kind enough to mention that I'd served 13 years on the staff of LSE. And as he said it, I recalled that on the first few days when I should have been a slave at my desk at lse, I was actually in the Czechoslovak Socialist Republic, witnessing the Soviet presence there. And one of the things I did every morning when I went out of the house where I was staying in Prague was to pick up propaganda leaflets from some rather disconsolate looking Soviet or allied troops in the streets. They had a paper called Zpravy, which consisted entirely of wonderful stories of Soviet troops helping old ladies across the street and performing other benevolent acts of one kind or another. And it left me with a slight degree of skepticism about humanitarian claims with regard to the purposes of intervention. Skepticism, but not, I hope, total cynicism. And I don't want to suggest that responsibility to protect or other associated ideas are without merit, but I do want to suggest that there are some inherent hazards in the ideas about which we need to be very cautious. And our two other speakers have far more involvement in the development of responsibility to protect than I do. So you'll be well advised to listen to them more than to me. My only direct involvement in it is a slightly uncertain one. In any case, I took part in some meetings of the Canadian or Canadian led International Commission on Intervention and state sovereignty some 10 years ago which came up with the notion of responsibility to protect. And the members tell me that it was when, not a mile from here, at some meeting, I think it was in Canada House on Trafalgar Square, I gave a very critical account of doctrines of humanitarian intervention and said that other language needed to be found to refer to what we were talking about. I'm told that that is what led them to focus on the idea of responsibility to protect. If this is a claim to paternity, it's a sort of claim to slightly illegitimate paternity. And I'm slightly embarrassed about the offspring, or at least nervous about its possible role in the world. And I think the first element of my concern has to do with the argument that is sometimes presented in connection with responsibility to protect. It isn't an inherently necessary part of it, but it's often there. The idea that this is somehow a completely new principle and that up to some undefined date, 20 years ago or whatever, the world consisted of states pursuing their national interests and operating on the Westphalian principle of sovereignty and respect for states. And then now, in the progressive era, when human rights are on the international statute book, we have reached a higher level of international morality where people and security of people enters in and in some cases even takes precedence over the security of states. Why am I nervous about this view? Because. Because I think it's a simplification of the past. And it has always been the case that there have been international concerns about the fate and security of peoples, as well as the fate and security of states. Even in the Treaty of Westphalia itself, or the Peace of Westphalia, I should call it, to be more accurate, there are provisions that reflect that set of concerns. And in international practice, just think of the number of cases where it has been the protection of individuals, Christians in the holy places, Christians in the Ottoman Empire, the protection of Greeks under Ottoman rule. One can go on the list where concern has been about people, not about states. Even the great inventor of the term international law, and indeed of the very word international, Jeremy Bentham, proposed in a letter to his old walking partner in London, John Quincy Adams, that the United States should intervene in Libya, or what was then called Tripoli, because it was ruled by a tyrannical ruler, and that if the United States intervened with only a small force, all would be well. The healthy forces in Tripoli would come out, there would quickly be an overthrow of the tyrannical ruler. And he even proposed in a forged letter purporting to be a gentleman from Tripoli, but actually written by Bentham himself, he even proposed to John Quincy Adams that the state motto of the new state would be the Greatest Happiness of the Greatest Number. A wonderful example of Western ideas being thought and progressive ideas being thought to be universally applicable. Sadly for the historian and connoisseur of interventions, Bentham never actually posted the letters to John Quincy Adams. We know from who later became. He was at that time Secretary of State of the United States and later became President. But we know that he would have been skeptical because he doubted the universalism of Bentham's vision. But there we have already, in a sort of embryo, not only R2P, but also, it has to be, said Rumsfeld, light the idea that just a small body of cellulose can solve the problem. So looking through other events which did actually happen, such as, for example, the British role with the Royal Navy in the liberation of Greece in contributing to the process that led to Greece's independence. Or the role of humanitarian rhetoric in the establishment of the Belgian presence in the Congo, which began with a humanitarian conference convened in Brussels, if memory serves me right, all of these events illustrate that there's a long and tangled history of the connection between responsibility to protect or humanitarian intervention. Not quite the same thing, but there is a long and tangled history which suggests that it might be useful to draw one or two lessons from it. Now, I don't think those lessons are purely negative. There are cases, although they're rich with irony, in some instances, where interventions have had partly humanitarian motives and have had considerable effect. For example, the Indian intervention in East Pakistan to create what is Now Bangladesh in 1971 was a response to a really serious situation that India faced. There were up to 10 million refugees from East Pakistan in India. You can't doubt that something had to be done in that situation. And part of the justification made in that case was a humanitarian justification. It has been said by some international lawyers that India, having made that justification, subsequently removed or rescinded it. That is not my understanding of the Security Council record. But be that as it may, this is a case where intervention undoubtedly helped address effectively and seemingly lastingly a very serious humanitarian situation. And that problem, the problem of refugees, has regularly been a driver of intervention. The problem of refugees has been cited in numerous UN Security Council resolutions as part of a justification for intervention. And it was so in Kosovo, where there was an extremely serious problem, both of internally displaced people in 1999 and in the same year. Refugees who fled, be it to Macedonia, be it to Albania or in some cases to Serbia, very large numbers of refugees, and the case for doing something was overwhelmingly strong and appealed to state. And one can go on with other instances, there are very, very many where that has been a factor. But while that has been a factor, and to this day, the overwhelming majority of inhabitants of Kosovo do tell you, if you go there, something which is most unusual in international politics, that they're actually grateful for the NATO intervention. Gratitude is a pretty hard emotion for us to bear at the best of times. And to indicate appreciation of external help is a difficult thing to do because, of course, it's a recognition that you failed to achieve your own liberation entirely on your own. You needed help. But that view is quite commonly still expressed in Kosovo. Now, to my mind, the present challenge that we face is quite simply one of combining a doctrine with a very messy international political reality. The doctrine of responsibility to protect is, at least in terms of international rhetoric, a very significant development because it recognizes that while the responsibility to protect primarily lies with the state concerned, as it were with the Syrian government in respect of the Syrian people, in the event that the state fails to exercise that responsibility effectively, then there may be a case for external intervention, as agreed by the Security Council. We'll hear more about this and correct me if I'm wrong. My reading of the sorry of the United nations summit in 2005, my reading of it is that it really still requires Security Council approval if there is to be a responsibility to protect exercised through external forces. So in a sense, it changes nothing, because the Security Council has. Has always had the right to act in the cause of what it sees as international peace and security. That's not new. And there are those who were involved in the writing of the UN Charter who saw it as having that right from the beginning. But it does increase, as it were, through the rhetoric and the fact that states have subscribed to this specific formula, it does increase the pressure when crises erupt to take some action. And here we come to the point, which will be my last point in these remarks about the inconsistency of application, when a ruler like Colonel Gaddafi both has consistently abused his position of power. And here I have to take my hat off to my friend Fred Halliday, who always recognized Gaddafi as a thug. You can make many criticisms of Fred's position on this or that, but one thing, and a rather important thing he was good at, was spotting thugs, and he certainly saw one there. When a ruler such as that has very few friends, if any, internationally it is possible to contemplate intervention, but in other cases it's much more difficult. And also in some cases where the internal situation in a country is extraordinarily difficult and dangerous, it's difficult to contemplate intervention. For example, some of you may have seen about a month ago, David Cameron at the UN saying to states in the General assembly that we have been consistent, we've put our money where our mouth is in Libya, we have not just subscribed to human rights documents, we have taken action and look, it's working. And I have great sympathy with that view. And I personally think that the Libyan intervention was better than the alternative. But he then went on with some appropriate cautions to say that this must be a general practice which the UN must be willing to contemplate. And it was very interesting that in the examples he cited, he didn't cite, he didn't even mention the country which probably has the worst situation, human rights wise, of any country in the world today, and that's Somalia. And why did he not mention it? Because the UN has been there in the sense of authorizing a United States led force in Somalia. And all those people who knew Somalia were right, who said it's going to be very, very difficult to create a functioning state out of the confusion in Somalia, including indeed a distinguished anthropologist at LSE who knew Somalia, Yoan Lewis. So there are limits both internally and externally to what can be done. And what is also worrying in the actual practice of humanitarian intervention is even in those cases where there really is a serious argument to be made for intervention, where refugees will be enabled to go home, where the existing system of rule is unconscionable, even in those cases, action by Western powers will inevitably, in a world of sovereign states, and this is still a world of sovereign states as well as a world of other values. It will be interpreted as being an act, a realist act, to expand the power of the states or alliances concerned. Russia, for example, was very concerned about Kosovo, that NATO was expanding its power into the Balkan Peninsula, into parts of the Balkan Peninsula where it hadn't previously been. China similarly had concerns about the expansion of Western power, but who is to say that they were wrong? Because in a sense, that was involved, just as expansion of Western power has been involved in some other crises. So my conclusion is not that we should reject responsibility to protect, but it is to put a health warning on it and to say that the application of it is filled with difficulty from A to Z. Thank you very much.
- [24:02]
A
Thank you very much indeed for. For your talk, including providing some historical. Necessary historical context and background and addressing some messy contemporary realities. I ask Mr. Ignacio Lanos to speak next. Thank you.
- [24:26]
C
Thank you. Professor Bhatt. My task this evening is to address the content of. Of the notion of responsibility to protect, as agreed at the United Nations Summit of Heads of State and Government and to describe what was agreed to at that meeting. In September 2005, 191 heads of state and government gathered at the United Nations General assembly formally undertook the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, and this was adopted by consensus. This was a landmark agreement which was welcomed as a contribution to prevent future mass atrocities such as those committed in Cambodia, Rwanda or Srebrenica. Responsibility to protect, or R2P for short, is one of the most important achievements in international law over the last few decades. Responsibility to protect has since been part of a body of norms of international law which cannot be derogated from. The two paragraphs of the World Summit outcome which deal with R2P state that each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community, through the United nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means in accordance with Chapter 6 and 8 of the Charter of the United nations, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action in a timely and decisive manner through the Security Council, in accordance with the Charter, including chapter seven, on a case by case basis and in cooperation with relevant regional organizations. Appropriate should peaceful means be inadequate and national authorities manifestly fail to protect their population from genocide, war crimes, ethnic cleansing and crimes against humanity, end of quote. To arrive at this language, the UN General assembly had before it two reports containing a number of proposals, one being from a high level panel of personalities appointed by the UN Secretary General and and another one from the Secretary General himself entitled enlarger freedom. The two reports dealt with numerous issues of the UN agenda and both of them had important input for R2P. In addition to these two reports, there was the report of the International Commission on Intervention and state sovereignty of 2001, the product of a Canadian initiative that is credited with being the most articulate proposal on R2P. These commissions changed the terms of the debate which so far revolved around the so called right of humanitarian intervention to the idea of a responsibility of the state to protect its population. And let me say in passing that the concept of the right of humanitarian intervention was almost doomed from its inception because it virtually ignored the role of the state and focused excessively on specific goals to be accomplished rather than on the responsibilities or duties involved. Besides, the notion of intervention carried a meaning which was self defeating, especially in developing countries, even for those that had a progressive human rights agenda. The development of the notion that the individual state has the responsibility to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity clearly benefited from the concept of sovereignty as responsibility as proposed by Professor Francis Deng from the Brookings institution in Washington D.C. in a seminal book, Sovereignty as Responsibility, Conflict Management in Africa, published in 1996, Professor Deng asserted that sovereignty can no longer be seen as a protection against interference, but as a charge of responsibility where the state is accountable to both domestic and external constituencies. The two UN reports outline the essential characteristics of the future R2P, but they had differences that concern the denomination of R2P, the cases which trigger its operation, the threshold of the crimes, as well as the criterion for its activation. The notion of R2P as such was included in the first draft of June 2005 proposed by the then President of the UN General Assembly, Jiang Ping of Gabon, who appointed two CO chairs to hold consultations on this issue. In the first drafts of the summit outcome, the title of the section on R2P read responsibility to Protect. Until the delegation of Egypt proposed at the last plenary set meeting the spelling out of the four crimes in the title of the section itself and this proposal was not objected. At the time this seemed to be a minor amendment, but but in fact it carries repercussions for the progressive development of R2P. With this amendment, R2P can be triggered by the four crimes only, nothing else, thus ruling out in principle other potential cases which have been suggested. This is again in principle because to a large extent this matter will be settled through State practice both within and outside the UN. The first draft of R2P drew inspiration from the Statute of the International Criminal Court and its principle of complementarity and stated that collective action was to be taken should peaceful means prove insufficient and national authorities be unwilling or unable to protect their populations. Ultimately, following a Canadian proposal, the summit outcome took a more operational approach, discarding the subjective element contained in the Rome Statute. The commitment made then is to take collective action should peaceful means be inadequate and national authorities are manifestly failing to protect their population from the four crimes, which is more appropriate to States? There was no major discussion as to the inclusion of the four crimes as proposed in the different reports. R2P is also concerned with the incitement to commit these four crimes, and this was a controversial issue. I will come back to this the perpetration of the four crimes is prohibited under international law. States have obligations to prevent and punish genocide, war crimes and crimes against humanity, both under treaty law and customary law. This is irrespective of the provisions on R2P under consideration. These crimes, except ethnic cleansing, are codified in the Rome Statute of the International Criminal Court. The first crime is genocide. Genocide is said to be a crime amongst crimes. The definition of genocide is contained in the Convention on the Prevention and Punishment of the Crime of genocide of 1948. That definition was followed verbatim by the Rome Statute, which states that genocide means any of the acts enunciated in Article 6 committed with intent to destroy in whole or in part, a national, ethnical, racial or religious group as such. The second crime is ethnic cleansing, which technically is not a crime in itself under international law, nor it is a crime under the Rome Statute. However, there was no dispute as to the inclusion of this crime, whose origin dates back to the conflict in the former Yugoslavia. Broadly speaking, ethnic cleansing is a process of forced migration of civilians. However, acts of ethnic cleansing may constitute one of the other three crimes. War crimes means grave breaches of the Geneva Convention of 1949, namely, any of the acts enunciated in the statute against persons or property protected under the provisions of the relevant Geneva Convention, in particular when committed as part of a plan or policy or as part of a large scale commission of such crimes. The Rome Statute has at least five pages devoted to the listing of actions involved in this type of crime, ranging from directing attacks against civilian population to willful killing or torture or inhuman treatment to committing rape. The fourth and last crime is crimes against humanity. According to the Rome Statute, this means any of a number of acts spelled out in Article 7 when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack. This is the case of murder, enslavement and for disappearance of persons, deportation or forcible transfer of population, etc. A few words on incitement According to the Summit outcome, the individual state has the responsibility to protect its population for the four crimes. It goes on to say that this responsibility entails the prevention of such crimes, including their incitement. The notion of incitement is no doubt a major contribution of the Summit outcome. This notion was proposed by the President of the General assembly rather late in the drafting process. Only the United States delegation voiced reservations to it. Since its First Amendment prohibits restrictions to freedom of speech. The notion of incitement has been used in major human rights convention such as the Genocide Convention and the International Convention on All the Elimination of All Forms of Racial Discrimination. All this to say that the notion of incitement is fully consistent with international law. In this line, the Committee on the Elimination on Racial Discrimination has found that the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression. A non paper prepared by Chile, Mexico and Japan of May 2005 proposed that the notion of R2P should be approached as a continuum, a continuum including prevention and international assistance encompassing development and capacity building up to collective action in accordance with the Charter. Unfortunately, the Summit outcome did not include this term, but the idea is now underlying the current strategy of the Secretary general for implementing R2p. A novelty from the point of view of international law is that the provision of R2P codify a recent practice of the Security Council, namely that the threat to international peace and security can be limited to a single state without requiring a transboundary element. The paragraph on R2P give regional organizations a role of cooperation with the UN. Because of their geographical proximity, regional organizations are better placed to learn first about serious human rights violations. The involvement of regional organization is consistent with the distribution of work envisaged by the drafter of the UN Charter. Besides, as demonstrated by the case of Libya and the role of the Arab League, in that situation, regional organizations can provide legitimacy. However, the role of regional organizations should not be seen as a precondition for eventual action by the Security Council. Be that as it may, after a number of Informal meetings the final wording on R2P was was settled by the President of the General assembly himself, who submitted a package deal dealing with all areas of activity of the United nations spread over 178 paragraphs. He had to perform a very delicate act of balancing which was considered successful. A provision of the Summit outcome stressed the need for the General assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principle of the Charter and international law. And this brings us to the mandate for implementation of R2P, which has led the UN General assembly to hold consultations and the Secretary General to prepare reports on different aspects of the implementation of R2P. As a result of this process, the Secretary general proposed in 2009 a three pillar strategy to deal with R2B. Pillar one is concerned with the protection responsibility of the State. It is the enduring responsibility of the State to protect its populations, whether nationals or not, from the four crimes and from their incitement. Pillar 2 International assistance and capacity building Pillar 2 is the commitment of the international community to assist States in meeting those obligations. It seeks to draw on the cooperation of Member States, regional and sub regional arrangements, civil society and the private sector, as well as on the United nations system. Pillar 3 timely and decisive response it is the responsibility of Member States to respond collectively in a timely and decisive manner when a State is manifestly failing to provide such protection. According to the Secretary General, this implies a broad range of tools available to the United Nations. This would include pacific measures under Chapter 6 of the charter, coercive ones under Chapter 7 and or collaboration with regional and sub regional arrangement under Chapter 8. Measures under Chapter 7 must be authorized by the Security Council. The Secretary General has stressed that there is no set sequence to be followed from one pillar to another, nor is it assumed that one is more important than another. Let me finish by briefly addressing two controversial issues. The first is the exercise of R2P without the authorization of the Security Council, and the response should be negative. In current international law, the invocation of R2P by a state or group of States without the Security Council's authorization does not have a legal basis. In this respect. One should bear in mind that R2P should be exercised in in accordance with the Charter of the United nations, and this is a clear affirmation of the primacy of international law. Secondly, the veto power and R2P. The summit outcome didn't address this issue. Both the report of the International Commission on Intervention and State sovereignty and the High Level Panel addressed this issue by proposing to limit the scope of the veto in cases of R2P. The International Commission proposed that there be agreed by the permanent 5A Code of Conduct for the use of the veto with respect to actions that are needed to stop or avert a significant humanitarian crisis. The High Level Panel report suggested to ask the permanent members in their individual capacities to pledge themselves to refrain from the use of the veto in cases of genocide and large scale human rights abuses. Unfortunately, the report of the Secretary General did not contain recommendations on this issue. In 2009, a new Secretary General filled this gap and urged the permanent members of the Security Council to refrain from employing or threatening to employ the veto in situation of manifest failure to meet obligations relating to the responsibility to protect as defined in paragraph 139 of the Summit outcome and to reach a mutual understanding to that effect. To this day that recommendation has not been acted upon. It is fair to say that failing a commitment on the veto, the implementation of R2P will simply be incomplete and open to the risk of selectivity. By way of a conclusion, let me say that first, the notion of R2P is based on the concept of sovereignty as responsibility, which represents a complete new way of approaching sovereignty which departs from the primacy of the State's interest in the 21st century. Sovereignty carries the responsibility of the State to protect its population. Second, primarily R2P is a call addressed to individual States to deal with serious human rights issues from within. This means that the State itself has the power to set in motion most of the components of R2P. The state should be alert to the first signs of human rights violation and act accordingly. If the State fails, the international community should take on that responsibility. Third, it can be submitted that the provisions regarding R2P provide an authentic interpretation of the Charter of the United nations, in particular of its Article 2 relating to its principles. As a result, no Member State could seriously claim today that when it comes to the four crimes, this is a matter which fall essentially within the domestic jurisdiction of the State, and this amounts to diminishing the scope of the reserve domain of the State in favor of the strengthening of human rights protection. Fourth, R2P should not be equated with the use of force. Although the use of coercive measure is the most visible and staggering expression of R2P, one should bear in mind that this is but one extreme of a continuum and that there is a set of tools that can be used by the State and that the use of force in R2P cases is and should be a measure of last resort. Lastly, the responsibility to protect holds a promise of a world free from the commission of mass atrocities. Through the notion of of responsibility to protect, international law has provided a powerful tool to address this challenge. There is no doubt that responsibility to protect has the potential to fulfill that promise and make a significant change in the way we approach the protection of human rights. Thank you.
- [44:45]
A
Thank you very much, Mr. Las, especially for highlighting clearly some of the legal and institutional contradictions and tensions within the RTP process and I suspect also bringing a perspective from the countries of the south which might come up in discussions and might lead to a different understanding. I ask Dr. Chaloka Bayani to give our final talk this evening. Thank you, Chalak.
- [45:15]
D
First of all, I just wish to express my sincere thanks to Professor Pati and the center for the Study of Human Rights for inviting me to speak on this occasion. And I want to speak more in reflection as one who was involved in some of the preparatory work of the International Commission on Intervention and State Sovereignty and to see what has happened from the original premises of the idea, the institutionalization of the responsibility to protect and perhaps give an appraisal of the way in which that responsibility has been perceived in the context of not just Libya, but also Ivory Coast. Those are the two instances where the Security Council passed resolutions based on the responsibility to protect and which stand out clearly, I think, for appraisal. First of all, the original premises of the idea behind the responsibility to protect lay in rejuvenating humanitarian intervention in situations of large scale atrocities and ethnic cleansing, with a view to post conflict reconstruction in ways that would have been informed by academic thinking in international relations, international law, international humanitarian practice as well as policy. This was evident in the title and work of the Commission itself, the formation of which in 2001 was spearheaded by Gareth Evans, former Australian Minister of Foreign affairs, and Mohammed Sanoun, a former UN diplomat from Algeria, as co chairs of the Commission. The initiative itself was led by the Government of Canada and the discussion discussions took not very far from here in Trafalgar Square at Canada House, for the most part, in part a response to the end of the Cold War and in part in reflection of a desire to deal with its remnants and consequences. It appears that the formation of the International Commission on State Sovereignty was prompted by the following question by Kofi Annan, then Secretary General of the United nations and I quote, if humanitarian intervention is indeed an unacceptable assault on State sovereignty, how should we proceed? How should we respond to Rwanda to A and to gross and systematic violations of human rights that affects every precept of our common humanity. And it is a response to that question because of international helplessness in Rwanda, the massacre in Srebrenica, subsequently to which the International Criminal Tribunal for the former Yugoslavia has held those inverse to constitute genocide. So in response to that, the Commission itself was established. But it was Adam Roberts, as I said, who should be credited for what it was worth in relation to his injunctions for persuading the preparatory work of the Commission to shift from intervention to the responsibility to protect. For my scenes, I did prepare the foundational aspects of the work of the Commission on the concepts of state sovereignty and the doctrine of intervention itself. In its final report, the Commission identified three aspects of the responsibility to protect as continuing elements, prevent violations as the primary element, with all options exhausted, secondly, react or respond to large scale violations of human rights and thirdly, to provide a basis for rebuilding and reconstructing societies in which atrocities had taken place. The primary responsibility lay on states, and the secondary responsibility, when individual states failed, lay on the international community, broadly defined as the un, its specialized agencies, financial institutions and civil society. However, it was also disappointing that the richness and depth of the research done for the Commission appears to have been lost in a document that was so obviously a product of compromise between the Commissioners. In particular, there was and continues to be an underlying ambiguity about how the responsibility to protect would be discharged. And I think this is an issue that lies at the fault line of the responsibility to protect, and that still concerns a number of states. I'll come back to this issue later on and reflect on Brazil's statement to the General assembly. When the General assembly reflected on the events in Libya and the viability of the responsibility to protect. But it also seems that the first thing that blew it out of the water was the invasion of Iraq during the second Gulf War and the statements that were made then which unnerved smaller states and saw themselves as potential victims of the responsibility to protect and thereafter within the General Assembly. Clearly, a good number of states seemed to distance themselves from the notion of the responsibility to protect. But if that was the conception, then the next thing is to reflect on the adoption of the responsibility to protect within the UN. And as stated previously, General Assembly Resolution 601, 2005 adopted the responsibility to protect following the 2005 World Summit outcome. And two paragraphs in particular stood out, paragraphs 138 and 139 of that resolution, paragraph 138 expressed the primary element of the responsibility. Each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity, whereas under139, the secondary element was expressed, I.e. the international community, through the United nations, also has responsibility to use appropriate diplomatic, humanitarian and other peaceful means in accordance with Chapter 6 and 7 of the Charter of the UN. Two problems here stood out immediately, the first of which is all the categories in respect of which the responsibility to protect applies are underlined by obligations in international law in the context of genocide. In the event of the occurrence of genocide, the States Parties to that Convention are obliged to prevent and stop genocide. It is the same for crimes against humanity. It is also the same for war crimes. And yet the responsibility, partly influenced by its predecessor, the humanitarian intervention, chose not to adopt the language of obligations. Instead, it was expressed as a right, the circumstances of which, in terms of application, would be a matter of choice by those States, invoking the doctrine that then gave it the element of selectivity and opportunity, and attracted the same criticism that humanitarian intervention before it had also attracted. It's also important that the context in which the outcome document and the Summit adopted the responsibility to protect is fully illustrated because it wasn't simply an isolated element. It was part of a package of measures. It was a package deal. You have a responsibility to protect. But it was also adopted in the context of a development b peace and collective security, c human rights and the rule of law and c strengthening of the United nations, including the possible reform of the United Nations. However, part of the problem is that the contextual basis of the responsibility to protect is ignored and the focus is more about its operationalization and the circumstances in which the use of force or underlying the use of force may actually be used. And I think this deprives RRP too of the fabric of its support by seemingly being about intervention. But in fact the context generated other developments within the UN which now also appear to be out of sync with one another. In his first report on the implementation of the World Summit outcome, the Secretary General did note that part of the measures required to implement the responsibility to protect would lie in the establishment of the Peace Building Commission, the establishment of a rule of law unit within the un, the establishment of a Human Rights Council within the United nations, and also the complete realignment of United nations agencies in order to engage in post conflict reconstruction work. But up to date, all these elements operate out of sync. None of them meets the original view on which the responsibility to protect itself was premised. The establishment of a Human Rights Council which should have been part of prevention and remedying violations of human rights. So a very weakened Human Rights Council, far from the notion that was first of all dreamt of the establishment of the Office of the UN advised on genocide, was also part of the same process. And that office still operates. And in the context of Libya at least, its opinion was sought on the consequences of ignoring the situation in Libya. But if the Secretary General's report was overlooked, mistake efforts to bear the normative basis for RRP 2 within the UN have not been successful. And I think that this is reflected in the first instance on 14th September 2009, when the UN General assembly adopted the first resolution on the responsibility to protect. That resolution only has three sentences, and the General assembly remains engaged on this issue and will continue to engage with it full stop. It never went beyond that. And in particular, there were a good number of states that resisted the responsibility to protect during that debate, namely Venezuela, Cuba, Syria, Sudan, Iran, Ecuador and Nicaragua. And in the more recent discussions which took place this year on the responsibility to protect, the same catalog of states, joined by Zimbabwe to some extent Brazil, also lined up against the responsibility to protect within the Security Council. The first approach was to include the responsibility to protect by referring to paragraphs 138 and 139 in Security Council Resolution 1674 of 2006 on the protection of civilians in armed conflict. And perhaps this, though not laying a general basis for RRP2, but had the effect of bringing RP2 in the context of international humanitarian law, where the protection of civilians actually matters. And yet, even in that context, as we'll see when we reflect on Libya, it's quite clear that RP2, as invoked in Libya, did not follow strictly the principles of international humanitarian law. One of the major principles, of course, is the distinction between civilians and those who take an active part in combat. And we saw how the troops of the National Resistance Council were not dressed in combat, they were civilians carrying arms, which meant that the principle of distinction was hard actually to apply. And it also gave the appearance that only one party to the conflict was actually capable of threatening civilians. So that element of selectivity had problems with the principle of proportionality in terms of the laws of armed conflict. And again, I think it's important that the relationship between the responsibility to protect and the laws of armed conflict attacking the legal basis of Security Council Resolution 1674 be examined hand in hand. Outside of the United nations, there has been some success, at least in Africa, in providing a legal basis for the responsibility to protect Article 4H of the Constitutive act of the African Union 2000 expresses the right of the Union to intervene in a member State pursuant to a decision of the assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity. And of course, the Constitutive act was adopted in 2000 and at that point the responsibility to protect had gained currency and African States were persuaded to include it within their constitutive framework. Note that the African Union has ever invoked the doctrine in any case since then it has established a Peace and Security Council mirroring that of the Security Council without the veto. And it has also established an African standby force relying on regional economic and political arrangements with brigades in West Africa, in East Africa as well as in Southern Africa. But much more concretely, perhaps, the protocols in the Great Lakes region that I had some occasion to work on, especially the Protocol on Non Aggression and Mutual Defence and the Protocol for the Prevention and Punishment of the Crime of Genocide, War Crimes and Crimes Against Humanity, completely embody the doctrine to protect. The protocols were in a critical stage of negotiations when the Member States came back from from the United nations and the outcome summit and therefore decided that they would have the responsibility to protect included within those protocols. The extent to which the responsibility to protect has been invoked is only marginal. It was in the context of DRC where the remnants of those who perpetrated genocide in Wanda were causing havoc and Wanda and the DRC undertook joint military operations to clear them out and try and serve the civilian population, mainly who were internally displaced persons. And two years ago, Uganda, the Central African Republic and Sudan have also mounted joint operations against the Lord's Resistance army, from the DRC to the Central African Republic to Sudan, to try and prevent atrocities against the civilian population. And it's difficult to assess the success of those measures, but at least they've been invoked on the basis of the responsibility to protect. Libya then unsecured Cancer Resolution 1973, which is the buzzword preceded by Securit Cancer Resolution 1970, which imposed sanctions on Libya. And it's important here to flesh out paragraph four of that resolution on the protection of civilians. It authorizes Member States that have notified the Secretary General, acting nationally or through regional organizations or arrangements and acting in cooperation with the Secretary General, to take all necessary measures, notwithstanding paragraph 9 of Resolution 1970, to protect civilians and civilian populated areas under threat of attack in Libya. That was the basis of the operational measures in relation to Libya. And what actually caused that? Well, it will be recalled that on the 15th of February this year there were demonstrations all across North Africa and more especially in Libya. And on 22 February, Colonel Gaddafi did say and gave orders to his people and supporters to attack and cleanse Libya house by house, until the protesters had been removed out of Libya. Soon after that, on 26 February, the Transitional National Council was established, and shortly after that it was recognized by a good number of states. The Human Rights Council, for its part, in March also issued a resolution noting that torture in human and degrading treatment and other widespread abuses of human rights had taken place in Libya. Those were the circumstances which triggered security cancer resolution 1373, and especially the resolution of the Arab League, I think, was the pointer. And here you look back like Kosovo, when Bruno Sima, the former professor of international law and now judge at the International Court of Justice, wrote of a thin red line that must not be crossed, and that if crossed, then you have the feeling that something ought to be done. And whether Libya reached that particular situation or not at that time is a matter that is obviously open to debate. But I think what is important is that the people of Libya clearly had spoken and had reason in the name of democracy and human rights. And the question is, should the international community stand by and watch them be butchered or not? There were those who took the view that with time, if there had not been resort to intervention or responsibility by the UN or NATO, although there would have been a loss of life, perhaps the Libyan people would eventually have sorted Gaddafi out. I think Syria and the scale of the uprising that's taking place might indicate to some extent, perhaps the pattern of events. Nonetheless, there is something that I will say towards the end that gives the appearance of the responsibility to protect being about protecting emerging regimes, both in Libya as well as in Cote d', Ivoire, although the circumstances are totally different because Cote d', Ivoire, obviously, who had a dictator who lost the election, refused to go, and the question is, would the whole world actually watch and not do anything? But at the same time, the engagement of the UN and the operation that overthrew Gagbo in Cote d' Ivoire also had some semblance that the responsibility to protect is about changing regimes and giving support to change those regimes. The richness of the doctrine itself and the moral obligations that it carries with it seems to have been put apart. And I think largely that is where part of the problem lies. I did say that I would reflect on some of the discussions that have taken place since Libya, and in particular the way in which those. Those discussions reflected on some of the issues at hand. I think it was Brazil who said that part of the problem with the responsibility to protect is that we actually do not see the protection of civilians in action, and that the more the doctrine moves in that direction, perhaps the better for the smaller states to actually see that responsibility of protect is not about them being victims, but it is about the civilians and the populations who, when brutalized by their governments and their forces, it becomes important for the international system to provide support to those civilians. And on that I end. Thank you very much.
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A
Thank you very much, Chloka, especially for engaging with the situation regarding Libya and also discussing the Great Lakes region. Now we have good time for questions. I can see a forest of hands already up there. I'm going to be taking questions in threes and you can address your questions to the entire panel or to one individual member. You'll also see our wonderful LSE stewards coming around with a microphone. So I know it can cause a little bit of a delay, but please wait and be patient until they put a microphone in front of your face so everyone in the audience can hear you and people can tweet about your question as well. And also, when you ask your question, can I request that you give your name and your institutional affiliation? And because I would like to get as many questions, questions and contributions in as possible, may I request that the length of your question is significantly shorter than the answer that it expects. Obviously, some people may want to make statements, and if they're going to move the discussion forward, they're very much welcome. But please do try and keep them brief. Okay. Question just there.
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B
Thank you very much. My name is Teddy Nicholson, master student in International Relations here at lse. Back in March, Mark Mallock Brown, former Deputy Secretary General of the un, was speaking around the time of the passage of Resolution 1973. And he argued, quite controversially, I think that given the political. Political opposition among some members of the.
- [67:45]
D
Security Council to rtp, it would in.
- [67:48]
B
Fact be more effective to use a broad interpretation of the more traditional notion of Chapter 7 powers and the of threat to the peace in order to intervene, and that this would be a better way, using traditional powers to get around this political opposition.
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D
Do you believe that that is the.
- [68:10]
B
Case, that it is better to use that than a seemingly more progressive doctrine.
- [68:16]
D
To achieve the same ends?
- [68:17]
A
If you could pass your microphone to two people now. Thank you.
- [68:21]
D
Thank you. I'm Dr. Kastian Dia from a university.
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C
In Spain, a lecturer in international law.
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D
Thank you for your interventions. You mentioned the ideas of Human rights capacity building development. I would like to ask especially Professor.
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C
Roberts and Dr. Vianney, if you think it would be useful for these interventions.
- [68:47]
A
To be more comprehensive of these aspects.
- [68:50]
D
I just mentioned that the General assembly included the concept of failed states in its vocabulary.
- [68:59]
A
Thank you very much. And there's two people there I'd like to take. Let's take two questions. So one just at the end and then. Hi.
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C
So I'm a student here doing my master's at the in Race Ethnicity and.
- [69:19]
D
Post Colonial Studies here at lse. And my question is for all of the panelists, but more specifically for Dr. Biani. It was mentioned earlier that regional organizations can provide a legitimizing force in the invocation and implementation of R2P. So what then accounts for the privileging.
- [69:38]
C
Of the Arab League legitimization of the.
- [69:41]
D
NATO intervention in Libya over the African.
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C
Union's rather vocal dissent?
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D
So whose legitimizing claims really count when.
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C
It comes to R2P?
- [69:50]
A
Thank you. And if you could just pass the microphone two rows behind the gentleman over there. Yeah, you.
- [69:59]
C
Hello, I'm student, Westminster University. I'm not expecting you to be able to answer these questions, but why for all of you, why can't they, the NATO, actually deal with Gaddafi as a person, rather actually intervening with the troops? My second question, if there's one person who's actually a dictator, why can't they deal with him as a person rather than actually intervening with military, with troops, etc. Etc. Okay, my second question is you're talking about human rights organizations, all these international community, but we haven't seen anything done for a big country which is the. One of the biggest country in Africa, Algeria, where we had all these massacres going on, slaughtering children, women in the country. To fly from Algeria to England takes only two and a half hours, but nothing has been done about this particular country. It seems that people dying there, like described by John Sweeney, by the journalist Robert Fisk and John. John Sweeney, as if they were victims of silence. And. Thank you very much.
- [71:15]
A
Thank you. Thank you very much. That's actually about five or six questions. So can I ask Adam to begin, please?
- [71:23]
B
Yes. On the first question about whether Mark Mallock Brown was right to suggest that Chapter seven powers might be a better way than responsibility to protect, to justify particular acts of intervention. And he speaks with a good deal of experience of working at the UN as well as in the UK Foreign Office. I think the difficulty there is that although you can argue the Security Council has the right under the Charter to take any action whatever that it considers necessary for international peace and security. It wasn't obvious that the problem in Libya had that international dimension. It was largely a problem within Libya. It was, if you're to be honest about why you're intervening, it's because of the hideous spectacle that was threatened of the possibility of mass killings in Benghazi. And so there was an obvious reason why, to some extent, it made sense to use the language of protection rather than simply asserting in general ways the Security Council's powers. But I have sympathy with him nonetheless, because, let's face it, the doctrine of responsibility to protect has become highly controversial in the United Nations General Assembly. And we heard some of that reflected in what we heard from Mr. Lenos and from Dr. Bayoni. We heard of some of the elements of controversialness, and so it's difficult to use it as a basis for action. And my reading of the intervention in Libya was very much that a combination of factors was invoked, not just one single principle. Now, just a word. I won't attempt to answer all the questions that have been asked, but there was an implication in some, and also in what said by Dr. Bayani, that there might be a case for interventions maintaining their purity and dealing impartially with both sides rather than intervening on one side. And I have to say that I have difficulty with that because there are times when the only force you've got to work with in a society is one side or the other side. I'm not saying that that's a desirable situation, and it certainly isn't true of all situations, but it is true of some. And effectively, when NATO intervened in Kosovo, it was de facto supporting the aims of the Kosovo Liberation army. And essentially, when intervening in Libya, it was supporting the rebels against the Gaddafi government. And the advantage of doing that is you have some purchase on the society. If you interposed as a purely neutral force, you would have enormous difficulty in actually achieving outcomes or in ending the conflict. And sometimes, I'm not saying this is true always, sometimes there is merit in taking sides. And lastly, just one other point, I would deal with the question of can regional organizations provide a legitimising force? That was asked over there. The answer is, whereas in terms of legal tidiness, there's no doubt that the Security Council, as it were, is the supreme legitimising in political reality. Two other forms of legitimation are no less important. One is regional bodies. And it did count for something that over Kosovo, every single country in NATO was willing, some rather reluctantly, to subscribe to the military action. That's a regional body that represented a large number of democracies. And in some of those democracies there'd been extensive debate about the rights or wrongs of that intervention. But also there's another kind of legitimacy that one must never forget, which is legitimacy from the society concerned. And where there is strong evidence of a desire for or support for intervention within the society concerned. That's a form of legitimacy that counts actually in my view, for more even than the legitimacy from on top of the UN Security Council.
- [76:59]
A
Mr. Lamas, would you like to Yes.
- [77:02]
C
I would like to make a comment regarding the question of the comments by Mark Malone Brown. I don't think he is right in his appreciation and I think that the case of Resolution 1970 and 1973 of the Security Council on Libya proves that this was an easy case. It was a very swift adoption. I know that the discussion of that resolution, really the adoption of the concept of R2 within that resolution when without any contention and in my view R2P now is a little bit a victim of its own success in Libya. And we are now experiencing that through the case of Syria because we were the Security Council was so successful in Libya, other members of the Council are looking with more cautious, more caution at what they are agreeing to. And perhaps this also again places too much emphasis on the third pillar. R2P is not only use of force. So perhaps we should also approach the issue as, as a bottom up approach. We should look at the state first regarding the legitimizing force of regional organizations. I completely agree. Sometimes that makes up the minds of the Security Council. We saw that in the case of Libya with the Arab League's adoption of condemnation of the regime and the use of force. And we are seeing this week, probably tomorrow we'll have a very strong resolution by the Araq leave, which could be the tipping point for the case of Syria.
- [79:20]
D
Thank you very much. Let me just reflect on a number of questions, questions that were raised. But first of of course the starting point is the question as regards Mallock Brown. And I associate myself more with the answers that have already been given. But I think that there are two issues here. One is if you look at the traditional basis of the threat to peace, then you also carry the entire political baggage that is surrounded the application of that. When the UN first intervened or sent troops to a situation within a country under threat of peace, which was the Congo, then there was so much controversy about that case that in the end they decided to call it police action rather than what you'd call it peacekeeping in modern times. And I suspect that because of some of those issues that are associated with that, it was probably more strategic to try and proceed on the basis of the responsibility to protect. I think the first time that it has actually been in a Security Council resolution and where measures were to be taken. But then the problem that arises, and I agree entirely with the statement made by Sir Adam here about intervention and supporting the side that's obviously weaker. But this is why the doctrine of humanitarian intervention, for all its faults, was quite clear, that you intervene in order to remove a particular undesirable problem that is causing issues in relation to the population or others. Because if I recall, it was actually about after 1860 that France, the UK and others intervened in Syria to protect Maronite Christians. And after that the doctrine of humanitarian intervention began to arise on the basis that this is action which shocked the conscience of humankind. And it was an exceptional measure completely outside of the realm of legality. Now, part of the problem both during the Cold War and after the the Cold War was to try and place humanitarian intervention within the framework of the un. And that clearly didn't work. The same problem might arise in relation to responsibility to protect, such that others might think that clearly there were ulterior motives in invoking that doctrine in a situation where in fact the main strategic objective was to get rid of Gaddafi for a whole variety of reasons. So it undermines the credibility of the responsibility to protect. And one would rather probably, you know, to come back to the question, have proceeded on more traditional means which would have been clearer as regards the question of human rights, development and reconstruction. I think I still recall that when Professor Adam Roberts persuaded the Commission to look at responsibility, it carried the notion that you simply don't intervene in order to change a situation, but that there are also responsibilities that go with intervention and also responsibilities in the aftermath of intervention. And this is where the package became important in terms of making sure that there is development assistance, there is post conflict reconstruction. You build the rule of of law, that is fix whatever went wrong with that particular state so that the state actually begins afresh. And I think that those are important aspects of the responsibility to protect from the conceptual basis on which it was formulated. Regional organizations as a legitimizing force. I agree entirely. But here preference was given, I think the Arab League over the AU for a number of reasons. First of all, Libya is an Arab state. It may be situated in Africa. So what the AU says in relation to Libya is not going to carry as much legitimacy as what the Arab League will say. And in fact, when Gaddafi himself had problems with the AU on certain issues, he went to the Arab League and raised the same issues before the Arab League in order to get support. So I think that those two dimensions going hand in hand, besides all those countries that were affected, from Tunisia to Egypt to Libya, were also members of the Arab League. And we see the Arab League speaking in relation to Syria. But one suspects also that the African Union was still divided at this point in time, although they voted for Resolution 1973. But when they went back to speak as a union, you saw their muddled mediation efforts in Libya. And I think it was not until in the summit in July, where Prime Minister Meles of Ethiopia clearly said to the AU that the last time he heard someone use the language of cockroaches, people were killed and genocide occurred in Rwanda. And that's how the AU turned round to actually, you know, sort of back fully politically resolution 1973. There are also other problems associated with that. Their awkward stunt towards the International Criminal Court and the fact that Gaddafi had been indicted by the court all came into picture in diluting what would otherwise have been a common stand by the African Union. Why not deal with Gaddafi as an individual? Well, he's protected by the state machinery. So if you really want to go and arrest him him, you have to arrest his army or defeat his army in the first instance. I mean, we saw that he was the subject of an indictment by the icc. But the ICC cannot simply march in Libya and arrest him any more than they could arrest Bashir in Sudan for the reason that as a head of state, he has got state machinery behind him. And I think that clearly is one of the problems that you have in that sense.
- [85:23]
A
Okay, thank you very much. We've actually only got a few minutes left and there are two people I know who've been waiting patiently to ask a question. So maybe if you could speak to the panelists outside of this venue. Can I just remind you that the Centre has a very busy program of events, and those wishing to be kept informed of the events and other activities should sign up to receive our email alerts. Our next event will take place on Thursday the 8th, 8th of December, just a few days before the UN International Human Rights Day. It's one of the big events in the Centre's calendar. We hope to see you all there. And this will be a lecture by Professor Catherine MacKinnon on gender in international law. And though the event is free to attend. We very much expect that demand will be very high. So if you're interested, please check the LSE human rights website. And can I finally thank Adam Roberts, Ignacio Lanos and Chiloko Bayani for coming to speak to us this evening. And also to Zoe Gillard and other members of the center and our wonderful stewards for their presentations and their efforts. And also to yourselves for very thoughtful and helpful contributions. I'm sorry. Sorry we ran out of time, but hopefully we can catch up with that later. Thank you very much indeed.