Finn-Valentin Kolitsch studies International Human Rights Law in a Master Programme at Lund University, after completing his first State Examination to qualify as a lawyer in Germany. In his work and studies, he focuses on International Humanitarian Law and the Use of Force, including R2P.
Lund, Sweden | December 5, 2021 | Analysis Article
The Responsibility to Protect (“R2P”) is a legal concept, that offers justification for the (military) intervention in other States’ affairs and/or territories to protect populations against acts of genocide, war crimes, ethnic cleansing, and crimes against humanity. The concept reached plastic existence in 2005 within the United Nations General Assembly (“UNGA”; paras. 138-141). In the UNGA, every Member State of the United Nations (“UN”) is represented and has one vote creating an equal platform for decision-making. The adoption of the World Summit outcome which formulated R2P, therefore gave authority to the idea because it meant worldwide acceptance. However, many scholars agree that the concept is nowadays considered as being unsuccessful and indeed failing.
After introducing the status quo by illuminating the content and structural problem of R2P, the article asks about the ways in which Germany’s foreign policy can positively influence the development of R2P.
The Humanitarian Intervention was the operational human security concept which preceded R2P and tried to justify a collective military intervention in other States’ territories for “humanitarian” reasons. But the characteristics of the concept and especially the applicable requirements were not clearly defined, and the concept failed in practice, inter alia in Somalia and Rwanda. R2P on the other hand has a clearer scope and introduced a new responsibility for States.
R2P is applicable in circumstances, where populations are in danger of genocide, war crimes, ethnic cleansing and crimes against humanity (para. 138).
These crimes constitute the most severe human rights violations as stipulated in International Customary Law and International Humanitarian Law. States and international law uniformly consider them as atrocity crimes, which explains why these acts are the baseline of R2P.
Three pillars (para. 11) form R2P. Pillar I obliges States to protect their populations against the aforementioned crimes. Consequently, a particular State has, prior to interventions by other States, the obligation to protect its population and by this, Pillar I establishes sovereignty as legal responsibility. From Pillar II originates the international responsibility to help and assist States with that obligation under Pillar I.
When national authorities are “manifestly failing” (para. 139) to protect the population, Member States of the United Nations (“UN”) have the responsibility to respond collectively with timely and decisive steps (Pillar III).
On this interventional level, peaceful measures are preferential steps: the first phase of Pillar III. Peaceful measures are inter alia diplomatic efforts or material/financial sanctions by the international community. Only if peaceful measures are unsuccessful in reaching the protection of the population in question, the international community may resort to forceful interventions. The primacy of peaceful measures is a consequence of the general prohibition of the use of force in the Charter of the United Nations (“UNC”) − Art. 2 IV UNC. Only exceptions to the prohibition are the right to self-defence in Art. 51 UNC and sanctions imposed by the UN Security Council (“UNSC”), Art. 42 UNC.
With the second phase, the UNGA opened R2P also to the use of military interventions by introducing all measures of Chapter VII (para. 139), including the use of force. Coercive interventions are the most visible and influential measures on the ground, because they involve the deployment of (multinational) troops and, potentially, the occurrence of armed conflicts. Furthermore, those measures pose the most striking legal anomaly, because they are questioning territorial integrity and therefore are more controversial.
Art. 51 UNC applies when a State is the subject of an armed attack (para. 195). The R2P framework, the character of the specified crimes and the defined situation allowing self-defence basically exclude Art. 51 UNC as justification to intervene in the sense of Pillar III.
The only lawful way left to militarily intervene in circumstances triggering R2P is under Art. 42 UNC. Thus, those R2P interventions are in the exclusive hands of the UNSC. The UNGA has no executive rights or opportunities to intervene. Because the UNGA is limited in this way, the feasibility of a R2P intervention by the UN depends on the ability of the UNSC to reach a decision in this regard. Consequently, the political conditions within the UNSC are deciding for the status quo of R2P.
Failures to Intervene
The commission of crimes against humanity in Syria and the activities amounting to ethnic cleansing against the Rohingya, an ethnic minority group, in Myanmar established circumstances, that justified the application of Art. 42 UNC under the R2P. Despite, the legal requirements were met and the humanitarian suffering rendering a moral need for protection, the UNSC did not intervene due to vetoes issued by Russia and China.
The failures to intervene originate from the use of the right to veto − which only the permanent members of the UNSC have (Art. 27 III UNC), namely Russia, China, France, United Kingdom and the United States of America (Art. 23 I UNC). The vetoes by Russia and China in these regards were motivated by geopolitical (pp. 98-99) and economic interests as well as the wish to prevent military interventions which could potentially become legal precedents (p. 22) rendered by internal situations of gross human rights violations. A veto ends the opportunity to take measures − even against the will of the vast majority. Hence the UNSC is politically paralyzed. The veto is in this situation especially influential because Phase II lays in the exclusive hands of the UNSC. Paralysis and consequential inactivity have a striking effect on the development of R2P, which is losing authority, recognition, and effect.
The political paralysis collides with the teleological moral background of R2P as well as the functionality of R2P. The UN did not make use of the R2P in the way it was constructed. It is foreseeable that Phase II under Pillar III will be applied only in/against States that lack the support of permanent members, because only then no use of veto power can be expected. This inconsistent application contributes to general skepticism and further weakens the acceptance of R2P within the international community.
Eiher the R2P concept breaks in consequence of the political paralyzed UNSC, or the international community rebuilds the concept itself or the UN system.
Therefore, there is currently no legal way for Germany to independently take actions under Phase II to protect foreign populations by putting “boots on the ground”.
The only option to promote the further development of R2P is political influence rendered through diplomatic means. Germany could, inter alia, align its voting behaviour within the UNGA, make relevant public statements and exert its political influence on current UNSC members and use its own recurring membership to advocate R2P and its effective use in the future. Indeed, Germany makes use of these tools by supporting the concept at international forums and welcoming steps to implement R2P and to include it in the formal agenda of the UNGA.
Three directions are available for Germany to develop R2P to fulfil the underlying promise for protection of individuals against genocide, war crimes, ethnic cleansing, and crimes against humanity.
Opportunities for Germany
The least elaborate opportunity to stimulate R2P with some effective strength, is to build consent within the UNSC. This approach does not presuppose any systematic changes and could be implemented immediately. When UNSC members, and especially the permanent ones, start to act in accordance with international law and not predominantly in their own interests, R2P could be used in a monitored, just, and effective way.
Another related course of action depending on consensus, would be the inclusion of R2P as hard treaty law with requirements and responsibilities, that leave no room for an inconsistent application of the concept. This could be done by amending the UNC, which presumes the consent of all Member States, or the ratification of a separate international treaty by supporting States. Established examples for such separate treaties are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
Germany’s foreign policy could play a leading role in striking such an agreement within the UN. But even though the idea of R2P is deeply anchored in the UN agenda, there is no consensus about the framework and application. Considering this lack of consensus and the political paralysis within the UNSC, it does not seem likely to find a permanent understanding to build a basis for stringent application of R2P anytime soon.
Customary law could activate R2P by going beyond the UNSC. The requirements for custom to become law (para. 27) are, according to Art. 38 I lit. b of the Statute of the International Court of Justice, general State practice combined with the recognition of this State practice as legally obligatory (opinio juris) upon all States. In other words, a certain conduct must be acknowledged as custom, and States subsequently have to observe this custom because they believe to be legally bound by it. Through this process custom becomes international law, that must be obeyed by States and that can be invoked before the ICJ. In consequence, a certain rule of a treaty ratified only by several States, may become the general practice and combined with opinio juris can also bind States, that were no parties to the original treaty. Such an example is the obligation to distinguish between the civilian population and combatants during an international armed conflict − a treaty norm (Art. 48 of the Additional Protocol I to the Geneva Conventions) and in addition binding on all States because of customary law.
A weaker point is that to build up general practice allowing States to get involved under R2P to protect people without a mandate or participation of the UNSC would mean a previous violation of Art. 2 IV UNC. When intervening in Kosovo, the NATO actions were arguably illegal under international law (p. 4). Since this happened before the resolution introducing R2P with the UNSC in charge of interventional measures, this practice cannot be seen as divergent from the R2P concept.
Second point of critique is the consequence of such customary law. The result would be hard to differentiate from the Humanitarian Intervention, which is criticized for its unclear scope and inconsistency of use, violating the principle on non-interference into internal matters amongst States. In the worst case, R2P could be abused as tool for imperial behaviour and anarchy.
Furthermore, the UNSC did not form any basis for R2P as customary international law. The inconsistent application of Phase II of Pillar III by the UNSC is questioning the generality of R2P practice and the political paralysis is highlighting that UNSC members are not considering their responsibility to protect as a legally binding obligation (opinion juris).
German foreign policy could nonetheless build a network and work towards a common understanding of R2P and the arising obligations.
By using diplomatic influence, like the statement of Ambassador Schulz, Germany could pave the way for an emerging customary law, that goes beyond the UNSC and thus avoids political paralysis. When observing the requirements of a norm to become customary international law, the challenge of recognizing general custom and opinio juris in practice become obvious. Additionally, for a norm to become general practice by the international community, time is needed − so it took for example several hundred years until the prohibition of slavery became recognized as international customary rule. As shown, the practice of going beyond the UNSC would also mean the violation of the general rule in Art. 2 IV UNC. The critical review shows that forming customary law implies a great challenge.
The most far-reaching option to activate R2P is the reformation of the UNSC. Especially the veto right and the permanent membership within the Council establish the paralysis of the most powerful organ of the UN. To abolish these two principles would mean a more flexible and democratic UNSC including equality and freedom of action. Thus, the UNSC would be able to make R2P effective by taking actions also against isolated dissenting votes. Preventing the political paralysis is not only beneficial for R2P, but also for general leadership and legitimacy of the UN. An operational UN, which is ready for action could set a counterpart to the current trend of nationalism and separatism in the world.
This approach has promising potential for the worldwide protection of people against atrocity crimes and the general realignment of the UN. Like the first introduced suggestion, this one depends on consensus since it would need an amendment or reformulation of the UNC. An international consensus between all Member States to reform the UNSC is highly unlikely − especially permanent members will not give up their positions of power voluntarily.
In conclusion, the exertion of R2P is in the exclusive hands of the UNSC, since situations which trigger the use of the concept are not falling within the exceptions of the prohibition of use of force for States.
The UNC directs − through Art. 42 UNC − the application of R2P towards the UNSC. As shown, the structure of the UNSC with its permanent members, their right to veto and expected voting conduct point towards a paralysis of the UNSC in this regard. Thus, R2P is not applied in situations of gross human rights violations demanding international interventions, like in Syria or Myanmar. This inactivity withdraws practical relevance and hence international acknowledgement from the concept. Consequently, the whole concept of R2P is under scrutiny.
German foreign policy has several ways to influence the future of R2P positively. A direct and delicate opportunity would be to give practice to R2P beyond the UNSC. This option includes risks for the acceptance of Germany and responsibility for potential violations of international law and could lead to unforeseeable consequences for the international balance of power.
The most promising option for Germany is to build consensus. Unity within the UN would facilitate effective use of R2P and stipulate reformation of the UNSC. The path of diplomacy is the most useful tool for German foreign policy to positively influence R2P. Open and placed support for the implementation of R2P on the UN level and the cooperation with initiatives having the same aim (e.g., the Global Centre for the Responsibility to Protect, which tries to strengthen the global support for R2P and has the objective of implementing the concept into treaty law) are promising opportunities for Germany to accomplish effective protection for individuals against genocide, war crimes, ethnic cleansing, and crimes against humanity.
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