R2P vs State Sovereignty: The Last Refuge of Scoundrels

Presentation to Canadian Studies Centre Symposium

The University of Innsbruck

12 November 2009

R2P vs State Sovereignty: The Last Refuge of Scoundrels

- by James V. Arbuckle

Patriotism is the last refuge of a scoundrel.[1]

- Dr. Samuel Johnson, 1775

Introduction

The responsibility for the conduct of states towards their people has long been a subject of controversy. None of any outsider’s business, said Hitler in 1933 (to the League of Nations), and Stalin in 1948 (to the drafters of the Universal Declaration of Human Rights). However, the Universal Declaration of Human Rights (UDHR) was adopted by the General Assembly (GA) of the United Nations on 10 December 1948, and changed forever the concept of the relationship of a state to its people, and its responsibility for them.

Despite the apparent ease of the Assembly vote on rhe UDHR (there had been abstentions, but no votes against), the subsequent approval, ratification and implementation by the member states was by no means a forgone conclusion (nor is it yet). The Soviet Union objected to what it saw as setting a precedent for outsider interference in its domestic jurisdiction. They and eight other members abstained from the General Assembly vote, and the USSR was never a signatory to the Declaration. A good many member states tacitly agreed – and do still - with the Soviet view that the UDHR was a potential threat to their sovereignty (thus coincidentally agreeing also with Hitler and Stalin); among them were the United States and China, indeed, all of the P5 agreed on that one thing, if on nothing else: their own sovereignty, and for Britain that included her empire, was their primary concern.

The Conference on Security and Co-operation in Europe was born of the Helsinki Final Act of 1975, which entailes a “comprehensive view of security”, giving human rights equal weight with the more traditional military and political factors of peace and security. Thus human rights, a long-standing taboo in East-West relations, became by virtue of the Final Act a legitimate subject of dialogue[2]; the peace agenda might never be the same.

In any event the appearance of a policy and associated doctrine had been established, and history unfolded into the Twenty-first Century with that altered background.

Discussion

It was in this apparently altered climate that the International Commission on Intervention and State Sovereignty (ICISS) released its report in December 2001 (see Annex A for summary). Now generally referred to as The Responsibility to Protect (R2P), the document ostensibly became U.N. policy when it was embraced by the Report of the Panel on United Nations Peace Operations, and by nearly all member states of the U.N., in September 2005. That “policy” as it was written is largely based on military action in accordance with Article 42 of the Charter[4]. However, it is today very clear that the Security Council will seldom authorize a forced intervention in a member state – the issues of consent of the “hosts” and respect for their “domestic jurisdiction” are as strong as ever.

The issue of consent as a factor in launching and maintaining an intervention arose with the first peacekeeping operation, the United Nations Emergency Force. This Force encountered for the first time the several aspects of the consent issue (then principally concerned with the consent of the “hosts”); the quick-fix solutions to the problems raised by this became, almost inadvertently, doctrine. The jumble of ad hoc doctrines which thus arose contributed much to failures to prevent and to protect in Rwanda in 1994 (where the consent of the troop contributors – in actual fact, the absence thereof - was an important factor). These failures are being repeated today in Darfur and in Zimbabwe and for essentially the same reasons, the central one being the traditional concern for host consent to the intervention. However, in the latter two, in addition to all the other problems, there has been added the issue of Security Council consent, as China has continually threatened to use her veto in matters affecting her clients, which include Rwanda, Sudan and Zimbabwe.

Notwithstanding, the promulgation of the doctrine of a responsibility to protect seems to portend a significant shift in the perception of the role of sovereignty, explicitly describing the responsibility of the international community to judge if, and to act when, sovereignty should on humanitarian grounds be set aside. Nevertheless, there has as yet been no operational manifestation of a paradigm shift in this regard, and no effective intervention has yet been mounted in, for example, Darfur. The Sudanese government has been left to dispute, to block, to refuse to consent to, any useful interventions, and has continually meddled in force structure and methods of operation, including restrictions on or denial of freedom of movement. There has been no operational response at all to the catastrophe in Zimbabwe. Common to most failures to protect and to prevent are dispute of the evidential facts by the “hosts,” who are in clear point of fact the perpetrators of crimes against their own people . Also common to both Sudan and Zimbabwe has been the culpability of neighbours and patrons, as seen by their inability or their unwillingness to restrain those governments. And in common with both emergencies, only the pressure of international public opinion on patrons and neighbours has any hope of creating the climate necessary to a truly effective intervention, in these cases principally China and South Africa: China supports[5], and South Africa has shielded from criticism, inter alia, Zimbabwe and Sudan.

In a special article written for the Washington Post and appearing on 26th January 2007[6], Lee Feinstein, the author of Darfur and Beyond: What is Needed to Prevent Atrocities, observed that

More than a year ago the United Nations adopted the “responsibility to protect.” The General Assembly’s endorsement of this revolutionary principle removes blind reverence for national sovereignty as an excuse to look the other way when innocents are being wiped out. In elevating this principle, the nations of the world said that they prioritize the right of people to live over the right of states to do as they please. The question now is whether this pledge was humanitarian hypocrisy, or did they have something in mind?

Feinstein concluded that “Universal adoption of the responsibility to protect has begun to remove the classical excuses for doing nothing in the face of mass atrocities. What is needed now is the capacity and the political will to back it up.” We might not want to hold our breaths on this one.

In the Charter of the United Nations (1946), Article 55 provides that “… the United Nations shall promote … universal respect for, and observance of human rights and fundamental freedoms for all …” Article 56 states that “All members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.” Now “promote” is not a very hard verb, but “pledge” does seem to demand and to expect something from those pledged. Then why UDHR two years later? “This universal declaration of human rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society … shall strive … to promote respect for these rights and freedoms and … to secure their universal and effective recognition and observance , both among the peoples of the Member States themselves and among the peoples of territories under their jurisdiction.” This astonishingly ungrammatical sentence has no action verb at all, and not surprisingly has resulted in little action. And so, more than a half-century later, R2P.

So when do we say what we mean, and mean what we say? It seems we already did place a limit on our concern for “the peoples”, when we set forth, in Article 2.7, that “nothing in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state …”. And that we really meant, and that holds true to this day: this is the norm for international relations and for the operation of the United Nations.

The bare fact is that the U.N., and most regional organizations, are not yet prepared to move beyond an innate and overriding concern for the sovereignty of member states. Weight is added to this reluctance to intervene internally in the affairs of states by a traditional and equally weighted concern for consent, especially of the “hosts”, to a peace operation or an intervention of any kind. Indeed, the issues of consent, domestic jurisdiction and sovereignty have fused into an almost immutable inertia of rest. This tendency to inaction is exacerbated by another tradition, which is that international and regional organizations do not criticize their members. Madeleine Albright has written that the response of the Burmese government to the tragedy of Cyclone Nargis, and the world’s apparent acceptance of the Burmese rulers’ failure to protect their own people, “illustrates three grim realities today: totalitarian governments are alive and well; their neighbours are reluctant to pressure them to change[7]; and the notion of national sovereignty as sacred is gaining ground …” Two centuries ago Dr Johnson said that, “Patriotism is the last refuge of a scoundrel”. Today we might update that by saying that “Sovereignty is the last refuge of government by scoundrels.”

I want here to digress briefly to express my admiration for the R2P report – the Commissioners have done a bold and a fine thing in writing it, and I am very proud that it was from the outset a Canadian government initiative – governments generally do all too little for us to admire. In the same manner, I greatly admire the Charter of the U.N., and especially the U.D.H.R. I think the Brahimi Report of fundamental importance, and the most important thing I have read on peacekeeping since the Charter. But I have in my introduction modified the term “policy” with terms such as “ostensible” and “apparent”; I am under no illusions that official papers and statements necessarily constitute operational policy, nor is the UN visibly inspired by any of them to action – not words, of which there are plenty – but action which might get the undivided attention of this seriously divided world. Resolutions often do not equal resolve.

In its effects so far, R2P seems not to be a policy describing what will be done, rather it shows tyrants and dictators and other monsters what probably will not be done: the principle of non-intervention will not yield to the international responsibility to protect; state sovereignty may imply responsibility of a government for the protection of its people but that does not denote an accompanying accountability for its failure to do so; state sovereignty is not being redefined in any operative sense. No “new norm” has emerged from R2P. On the contrary, and as you will hear from others in the course of this conference, what instead emerges is a lack of the will to protect; indeed there seems evident a positive will to non-intervention, “a negative thrust”. As William Butler Yeats expressed it, “The best lack all conviction, while the worst/Are full of passionate intensity”.

Indeed, that is becoming my judgment of international law in general. I think I can come out here and say that I am the father of a lawyer, and he and I have had many debates on the subject. When he says, as many do, that there is no such thing as international law, I say, perhaps not yet. When he says, as many do, that unenforceable laws are not laws, I reply that much of our laws of today rest on precedents. We hope we are today setting precedents in international law which will someday become norms, and we have to start somewhere. But lately I am beginning to doubt even that.

I have begun to wonder if the term international community isn’t another euphemism become an oxymoron, like organized labour, or life insurance, or state religion, or received wisdom, or reality television, or rap music. And what of Kyoto? So how serious are the delegates to Copenhagen, and how likely is it that this process will result in “new norms”? It seems that there is more force to parking regulations in Innsbruck than there is to the entire Charter of the U.N. Here, if you mispark, you will be cited and punished. You can negotiate, but it is probably a waste of time and most just accept the judgment and the penalty. The existence of the law, its appropriateness and its enforceability are at any rate not at issue when parking or misparking in Innsbruck today. Yet it is precisely these issues – the existence and the force of laws - that Omar al-Bashir and Robert Mugabe have been allowed to make the subject of debate, while continuing to offend.

We can take neither pride nor solace in the existence of a policy which proclaims responsibilities we cannot – or we will not - honour. The most painful of our sins are those of omission – the things we didn’t do; the promises we didn’t keep. The Bible warns us specifically of this: “… the good that I would, I do not.” In that sense, the very existence of R2P actually shames us all, for we have admitted that we know better, we maintain that we have learned, we do know what happened in Rwanda and in Bosnia over a decade ago. Nevertheless, right before our very wide-shut eyes, never again is again becoming yet again. It is enough, it has been said, for the worst to happen, if the best do nothing.

Nevertheless, it is quite unrealistic to expect that the United Nations will exercise a quasi imperial power over “dominions”, the sort of power, for example, which the United States government might exert over the several states – and did in Arkansas in 1957 and in Alabama in 1963.[8] Who can imagine the Security Council finding the governance of a member so objectionable that it would ever use military force to effect regime change, or even modification? What international instrument or body might under any circumstances authorize such measures? Clearly, the United Nations will never act as did the Americans (with their small array) in 1999 and in 2002.

So what is to be done, aside from nothing?

Gareth Evans has rightly said that a major problem with R2P “is the one-dimensional perception that R2P is only about military coercion.”[9] Notwithstanding that the tone of the report is predominantly military, Evans is right: there are other ways. As an alternative to the unlikelihood of a military response to a “domestic” emergency, I suggest that diplomatic sanctions, as provided for in Article 41 of the Charter, could circumvent the consent issue, and could be applied without serious collateral effects, the apprehension of which is another major inhibiting factor. Sanctions under Article 41 of the Charter have a far lower threshold for action, can be undertaken at several levels “jointly and separately” with little risk or cost, and do hold the promise of effective intervention. Thus an offending government might, upon due process, most suitably by the Security Council, but also by the regional organization, best by both in concert, be banned from all non-material international and regional interactivity, especially cultural, athletic and military. These measures, which I call diplomatic, non-material sanctions, should be far more effective than R2P’s largely empty promise of military intervention to prevent and protect. Something like this was attempted, with varying effects and effectiveness, in the cases of the Olympics in Berlin in 1936 and in Moscow in 1980; such measures were eventually completely successful in the anti-apartheid campaign in South Africa[10]. Although some such action was much discussed in the period immediately prior to the Beijing Olympics, it was too little and too late. China was able to use the Games to political and economic advantage, and to suppress dissent.

(But it’s really never too late: in Montreal in 1976, 25 nations withdrew from the Games as the opening ceremonies began: 20 of the first 25 were already in Montreal, and Kenya withdrew as the ceremonies were under way. They were protesting the IOC refusal to ban New Zealand, whose rugby team was touring South Africa at the time – South Africa had been banned from international sport since 1964. As the Games were under way, seven more nations withdrew.)

Diplomatic sanctions as I propose them here would be contagious, that is to say, any state or organization failing to observe the sanctions would themselves be sanctioned, nor would any other state or organization be allowed any prohibited contact with a sanctioned state. In addition to sanctions against governments, corporations and individuals may also be sanctioned.[11]

That is applying sanctions at the macro level, but obviously micro sanctions, those by individuals following their consciences, may have their effects, as the pre-Beijing Olympic protests by Mia Farrow and (inspired by her) Steven Spielberg. And Jake Lynch, a respected academic, has called on his university in Australia to break off relations with two Israeli universities; as he says:

I’ve led a call for the University of Sydney to cancel institutional arrangements with the Hebrew University of Jerusalem and Technicon University, in Haifa. Though small in scale, these contacts are symbolic of a commitment to help Israel enjoy normal relations with the outside world, despite its record. For this to cease now would be our contribution, however minor, to raising the social, economic and political cost of militarism as an alternative to dialogue and negotiation.[12]

Public opinion on the issues surrounding intervention – sovereignty, consent, and the role of the Security Council – has been changing, and changing perhaps more fundamentally and rapidly than are the usages of international diplomacy. This was made clear in a report based on the findings of a world-wide survey on attitudes on important international issues, conducted by The Chicago Council on Global Affairs and by WorldPublicOpinion.org. Their report was made public on 5 April 2007.

On the question of the U.N.’s responsibility to protect, 76% of Chinese and 74% of Americans agreed that the U.N. has a responsibility to use force to protect peoples from severe human rights violations such as genocide.

On the U.N.’s right to intervene in such cases, 83% of Americans, and 72% of Chinese agreed that the U.N. had that right. When the question was asked of Darfur, 83% of Americans, and 58% of Chinese, agreed that the U.N. had either a right or a responsibility to intervene there.

When asked about decision-making in the U.N., 78% of Chinese admitted that respect for U.N. decisions could mean accepting a policy other than that which the country may have preferred. Asked to express a general opinion of the U.N., the Chinese were among the most positive of nations polled.[13]

As we approach the Vancouver Winter Olympics and the Football World Cup in South Africa, the “international community” faces once again some hard choices – will scoundrels be welcomed? The international community, and/or individual members, might seek opportunities to express themselves rather more forcefully on the question – or they might not.

Conclusion

On 10 December, 2008, the world celebrated the sixtieth anniversary of the promulgation before the General Assembly of the United Nations of the Universal Declaration of Human Rights. In that same week, we could also have observed the seventh anniversary of the Report of the International Commission on Intervention and State Sovereignty – but we had nothing to celebrate. The stark fact we must instead confront is that, in those seven years and since, not one afflicted person of Myanmar nor of Zimbabwe has been helped by our new perception of an international responsibility to intervene in the affairs of any state. Although both an African and a concurrent U.N. mission have been launched in the Sudan, the Sudanese government has been allowed to bicker it into a state of general impotence to act at all effectively. Little does it matter how dismal, how criminally negligent, the “domestic” affairs of a “sovereign” state may be, the inertia of domestic jurisdiction, of equal sovereignty of states, and the fear of unintended consequences will yet withstand whatever pressures we may imagine we may bring to bear. We are not superior to those who failed to intervene effectively in Rwanda or in Bosnia. Indeed, the moral weight of our omissions today is greater and more serious for us than in those earlier cases, just because we have admitted that we understand the need for and the problems of intervention, and we pretend to know fairly precisely what it is that we should do – but are once again neglecting to do. Are our failures to protect fellow humans chronic? Is this the best we can do – is this the best we can be?

Gareth Evans has said:

It has taken the world an insanely long time, centuries in fact, to come to terms conceptually with the idea that state sovereignty is not a license to kill – that there is something fundamentally and intolerably wrong about states murdering or forcibly displacing large numbers of their own citizens, or standing by when others do, and that it is unacceptable for the rest of the world to allow that to happen.[14]

Brave words for a new century, but Madeleine Albright is closer to the mark when she says dictatorships are alive and well, the neighbours’ tolerance for domestic injustice is nearly boundless, and the inertia of state sovereignty has never been stronger. The bar for nonconsensual military intervention is still too high. Article 42 is not a practicable response to the obligation to protect. This sort of quasi-imperial power will not in any foreseeable future be exercised by the United Nations. But Article 41 may be a more flexible and effective response. Soft power resolutely applied may yet be more effective than the reluctant and sporadic application of hard power. I have interpreted the former to include measures which might create the essential consent to an intervention, and could include precluding an offender from all non-material intercourse among nations, especially cultural, athletic and military. This is what worked to end apartheid, and was quite probably the only thing which could have so succeeded. Non-material sanctions would be contagious, with the result that violators of sanctions would themselves be sanctioned.

I hope that I have in this presentation made it clear that I admire the spirit of R2P as much as I admire the efforts of the Commissioners who drafted it. I do however think it regrettable that the document, and the body of policy which it recommends, is so clearly concerned above all with non-consensual military intervention. That interpretation, which at least Gareth Evans has so eloquently regretted, is nevertheless an inescapable product of the Commissioners’ use of language. It is indeed regrettable that more consideration has not been given to “measures not involving the use of armed force”; I have suggested how that might have been, and may yet be, the operative application of R2P.

Ninety years ago, the Anglo-Irish poet W.B. Yeats surveyed the Versailles Treaties with foreboding. Eventually, Winston Churchill would come to share his pessimism, describing the Treaties as too harsh to reconcile , but too weak to enforce. In 1919 Yeats wrote:

Now days are dragon-ridden, the nightmare

Rides upon sleep: a drunken soldiery

Can leave the mother, murdered at her door,

To crawl in her own blood, and go scot-free;

The night can sweat with terror as before

We pieced our thoughts into philosophy,

And planned to bring the world under a rule…Perhaps the best we can say of R2P is that it is prescriptive – describing what should happen – and not yet descriptive – of what will be done. But we’ve been saying that about UDHR for over 60 years – as Gareth Evans has said, an insanely long time indeed

We may not really have a policy, but clearly we do now have some choices.

[1] Samuel Johnson (1709-84) was a philosopher, essayist, and author of a monumental English dictionary. He was in this case referring to American colonists, then loudly proclaiming their patriotism, and who would a year later declare their independence of Britain.[2] The Soviet Union abstention on UDHR was “nullified” by its accession to the Final Act, which embodies UDHR.[4] See Report of the International Commission on Intervention and State Sovereignty, “1. The Policy Challenge”, paragraph 1.38 (“By far the most controversial form of … intervention is military, and a great part of this report necessarily focuses on that”), and “7. The Operational Dimension”, with sub-headings “Preventive Operations”, “Planning for Military Intervention”, “Carrying Out Military Intervention”, “Following Up Military Intervention” and “A Doctrine for Human Protection Operations.” Thomas Weiss, writing for the Academic Council on the United Nations System, says that ”the ICISS (report) was … a snap shot of issues surrounding non-consensual military action …” (The Academic Council on the United Nations System Informational Memradum, No. 60 – Summer 2004). Many of the study members, among them Gareth Evans, now seek to distance the Report from military actions: “Trouble comes from those … who play into the hands of the ideological critics … by being far too ready to think of R2P situations only in military terms … “ Gareth Evans Offers Five Thoughts for Policy Makers on R2P”, http://www.responsibilitytoprotect.org/index.php/eupdate/932 , 3/20/2009.[5] When touring Africa in April 2006, Chinese President Hu Jintao said that China will make “business deals without any expectation that governments will improve democracy, respect human rights or fight corruption. He told reporters in Nairobi, the last stop of his tour, that China follows ‘a policy of noninterference in other countries' internal affairs’." See http://www.washingtonpost.com/wp-dyn/content/article/2006/06/12/AR2006061201506.html, 13 June 2006. In 2008, China’s trade in Africa increased by 45%.[6]The Washington Post, “Beyond Words: Building Will and Capacity to Prevent More Darfurs,” by Lee Feinstein, January 26, 2007, http://www.washingtonpost.com/. (Italics added)[7] An AU Summit resolved on 3 July 2009 that “The AU member states shall not cooperate … for the arrest and surrender of Sudan President Omar al-Bashir” (http://www.mg.co.za/, 4 July 2009). Thirty African states have signed the Rome Statutes, and are by this declaration in violation of their treaty obligations. Botswana is not one of them: "The government of Botswana does not agree with this decision and wishes to reaffirm its position that as a state party to the Rome Statute on the International Criminal Court (ICC) it has treaty obligations to fully cooperate with the ICC in the arrest and transfer of the president of Sudan to the ICC," said Foreign Minister Phandu Skelemani (http://www.mg.co.za/article/2009-07-06-botswana-says-albashir-must-stand-trial-at-icc, 6 July 2009)
The more rational (that is, the least irrational) arguments against executing the ICC warrant on al-Bashir are just those reasons given for the non-arrests of Karadzic and Mladic in 1995-96 and ever since (see Arbuckle, James V., The Level Killing Fields of Yugoslavia: An Observer Returns, Pearson Press, Clementsport, Nova Scotia, 1998, pp 24-26.). Karadzic remained at large until his surrender in 2008; Mladic is at this time (July 2009) still free.[8] In both cases, forcing a defiant state government to accede to school integration.[9] The New York Times, “When to Step in to Stop War Crimes Causes Fissures,” by Neil MacFarquhar, www.nytimes.com/2009/07/23/world/23nation.html, 24 July 2009[10] See Annex B[11] On July 16, 2009, The UN Security Council banned travel by and froze the assets of 10 North Korean individuals and businesses. See http://www.washingtonpost.com/wp-dyn/content/article/2009/07/16/AR2009071602417_p, 7/17/2009.[12] http://www.transcend.org/tms/article_detail.php?article_id=1311, 2 June, 2009[13] http://www.worldpublicopinion.org/incl/printable_version.php?pnt=340
[14] Gareth Evans, “The Responsibility to Protect: Creating and Implementing a New International Norm,” address to the Human Rights Law Resource Centre, Melbourne, 13 August 2007.

Annex A

to Presentation to Canadian Studies Centre Symposium

The University of Innsbruck

12 November 2009

The Responsibility to Protect

The International Commission on Intervention and State Sovereignty (ICISS) released their report in December 2001. Now generally referred to as The Responsibility to Protect (R2P), the document became U.N. policy when it was embraced by the Report of the Panel on United Nations Peace Operations and the “new norm” was endorsed by 150 members of the General Assembly, in September 2005

R2P rests on two basic principles, and these are:

1. State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself; and
2. Where a population is suffering serious harm as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.The policy has three essential elements, and these are:

• 
  
  The responsibility to prevent;
  
  
• 
  
  The responsibility to react; and
  
  
• 
  
  The responsibility to rebuild.
  
  R2P postulates three principles for military intervention:
  
  
• 
  
  The Just Cause Threshold. These just causes include large scale loss of life and large scale ethnic cleansing.
  
  
• 
  
  The Precautionary Principles. There are four: right intention; last resort; proportional means; and reasonable prospects.
  
  
• 
  
  Right authority. The Security Council is the only appropriate body to authorize a military intervention for human protection purposes.On the subject of military force as a last resort, the ICISS Commissioners observed that
  the Charter’s strong bias against military intervention is not to be regarded as absolute when decisive action is required on human protection grounds. … members of the broad community of states do have a responsibility to protect both their own citizens and those of other states as well. … Military action can be legitimate as an anticipatory measure in response to clear evidence of likely large scale killing. Without this possibility of anticipatory action, the international community would be placed in the morally untenable position of being required to wait until genocide begins, before being able to take action to stop it. … military coercion can only be justified when the responsibility to protect has been fully discharged. This does not necessarily mean that every such option must literally have been tried and failed: often there will simply not be the time for that process to work itself out.[