Refocusing to Revive: the Responsibility to Protect in International Atrocity Prevention

• Citation: Vol. 48 No. 3
• Publication year: 2020

Refocusing to Revive: The Responsibility to Protect in International Atrocity Prevention

Sarah Frances Plunkett^*

[Page 773]

Table of Contents

I. Introduction................................................................................775

II. Rise and Fall of the Responsibility to Protect Concept .... 775

A. 1990s Turmoil Gives Rise to Perceived Need to Move Beyond Doctrine of Humanitarian Intervention...............775
B. Formulating the Responsibility to Protect Concept: 2001 Report of Commission.......................................................776
C. Refining the Responsibility to Protect Concept: 2005 Report of the U.N. Secretary-General and Endorsement of the World Summit Outcome.....................................................777

i. Embracing and Backing Away from the Responsibility to Protect: The Concept Since 2005...............................779
ii. Embracing the Responsibility to Protect: 2005-2011 ....................................................................................780
iii. Backing Away from the Responsibility to Protect Concept: Post-2011 Libya Situation-Present............782

II. Evolution of the Responsibility to Protect Concept.........783

A. Core Premises of the Concept...........................................783

i. Primary, Individual Duty of Each State to Protect Persons in Its Jurisdiction or Control........................784
ii. Residual, Collective Duty of States to Protect When Individual States Fail to Do So .................................. 786

B. Measures by Which the Responsibility to Protect Concept Is to Be Discharged ............................................................... 787

i. Noncoercive Measures ............................................... 788

[Page 774]

ii. Coercive Measures Short of the Use of Armed Force 790
iii. Coercive Use of Armed Force....................................791

C. Debate over the Responsibility to Protect Concept...........795

i. Reframing the Debate: 2009 Report of the Secretary-General Report on "Implementing the Responsibility to Protect"......................................................................795
iii. From Existence to Operation: Determining the Scope of Obligations Under the Responsibility to Protect........796
iv. Focus on Coercive Military Intervention: Stalling the Responsibility to Protect Debate................................796

IV. Reviving the Responsibility to Protect Concept.................797

A. Recognizing the Current State of the Responsibility to Protect Concept ................................................................. 797
B. Revisiting the Origins of the Responsibility to Protect: The 2001 Commission Report .................................................. 798

i. Remembering the Responsibility to Protect's Purpose and Priorities.............................................................. 799
ii. Distinguishing the Responsibility to Protect Concept from Humanitarian Intervention ................................ 799

C. Redirecting the Responsibility to Protect's Development: From a Form of "Humanitarian Intervention" to the Means for "Conflict Prevention" ................................................. 800

V. Conclusion...................................................................................802

[Page 775]

I. Introduction

The responsibility to protect has stalled as an influential force in the world. The responsibility to protect, commonly abbreviated as R2P, is a legal concept intended to prevent gross human rights atrocities. The concept rests on two core premises. First, that sovereign states have an inherent responsibility to protect their people. Second, that if a state is unwilling or unable to fulfill this responsibility, the international community of states has a duty to take on that individual state's responsibility when a population is suffering serious harm.¹ Debate focused on the scope of states' duties and their ability to intervene militarily under the responsibility to protect has made the concept ineffective at preventing or responding to serious human rights crises. To realize the R2P's goal of atrocity prevention, proponents must redirect this discourse and the development of the concept from focusing on military intervention to focusing on conflict prevention.

Part I of this Note tracks the rise and fall of the responsibility to protect concept since it was first introduced in 2001. Part II considers how the R2P concept and debate surrounding its development have evolved. Part III analyzes strategies for both reviving and improving the concept as it currently stands. This Note concludes that though the development of the responsibility to protect concept has slowed in international law, its proponents can revive the responsibility to protect concept and better achieve its goal of atrocity prevention by redirecting focus from the concept as a means of humanitarian intervention to a legal concept with force for conflict prevention.

II. Rise and Fall of the Responsibility to Protect Concept

International actors including the United Nations, regional organizations, and individual states failed to prevent gross and systematic human rights violations throughout the 1990s in Somalia, Rwanda, and the Balkans.

A. 1990s Turmoil Gives Rise to Perceived Need to Move Beyond Doctrine of Humanitarian Intervention

In 1999 international actors failed to stop "ethnic cleansing" in Kosovo.² The U.N. Security Council failed to authorize coercive military action in Kosovo before thousands were killed.³ Despite the absence of Security Council

[Page 776]

authorization, NATO began intervening with air strikes in March 1999.⁴ After the air strikes, Sweden established the Independent International Commission on Kosovo to determine the legitimacy and legality of NATO's intervention.⁵ The Kosovo Commission found NATO's actions were "legitimate, but not legal" and recognized "the need to close the gap" between the two issues of sovereignty and humanitarian intervention.⁶

After the Kosovo Commission announced its findings, U.N. Secretary-General Kofi Annan challenged state leaders in the 2000 Millennium Report by asking: "If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica—to gross and systematic violations of human rights that offend every precept of our common humanity?"⁷

B. Formulating the Responsibility to Protect Concept: 2001 Report of Commission

To answer Annan's challenge, Canadian Foreign Affairs Minister Lloyd Axworthy established the International Commission on Intervention and State Sovereignty ("Commission") in September 2000.⁸ The Commission's mandate was to promote debates and foster international political consensus on how to develop timely reactions to massive violations of human rights and humanitarian law in the international system.⁹ Further, the Commission was to "find new ways of reconciling the seemingly irreconcilable notions of intervention and state sovereignty."¹⁰ To carry out this mandate, the Canadian government invited twelve individuals to serve as Commissioners.¹¹ The Commissioners came from around the world, representing a diverse range of regions, experiences, and viewpoints on the issues the Commission was mandated to address.¹²

Between November 2000 and September 2001, the Commission held five meetings with all Commissioners present, as well as eleven regional roundtables and "national consultations."¹³ National and regional officials and

[Page 777]

representatives of civil society—from intergovernmental and nongovernmental organizations, academic institutions, and think-tanks—attended these roundtables and consultations.¹⁴ The Commission's efforts culminated a report titled Responsibility to Protect ("Report"), published December 2001.¹⁵ The Commission answered its mandate on state sovereignty and humanitarian intervention by introducing the legal concept, the responsibility to protect. The responsibility to protect as a concept rests on two core premises: first, that sovereign states have an inherent responsibility to protect its people; and second, that if a state is unwilling or unable to fulfill this responsibility, the international community of states has a duty to take on the individual state's responsibility when a population is suffering serious harm.¹⁶ In its Report, the Commission stated that this responsibility to protect embraced three specific responsibilities: to prevent serious harm to populations, to react to situations of serious harm, and to rebuild after harm or intervention occurs in a specific state.¹⁷

C. Refining the Responsibility to Protect Concept: 2005 Report of the U.N. Secretary-General and Endorsement of the World Summit Outcome

In 2005, both the U.N. Secretary-General and the U.N. General Assembly endorsed the responsibility to protect concept.¹⁸ In March 2005, Secretary-General Kofi Annan published a five-year progress report titled In Larger Freedom, which endorsed the concept and also set the agenda for the U.N. World Summit held later that September.¹⁹ In the report, Secretary-General Annan stated, "I believe that we must embrace the responsibility to protect, and, when necessary, we must act on it."²⁰ In Paragraph 135, the report stated:

This responsibility lies, first and foremost, with each individual State, whose primary raison d'etre and duty is to protect its population. But if national authorities are unable or unwilling

[Page 778]

to protect their citizens, then the responsibility shifts to the international community to use diplomatic, humanitarian and other methods to help protect the human rights and well-being of civilian populations. When such methods appear insufficient, the Security Council may out of necessity decide to take action under the Charter of the United Nations, including enforcement action, if so required.²¹

This understanding of the responsibility to...