Responsibility to Protect (R2P)

Recently, Prime Minister Imran Khan, called on the international community to fulfil its obligation to the Afghan people by providing humanitarian assistance to the country under the international doctrine of Responsibility to Protect (R2P). The prime minister also tagged a news story published in the London-based Guardian daily, carrying excerpts from a letter written by former British prime minister Gordon Brown to UK foreign secretary, Liz Truss, calling on her to help convene a donor conference to raise $4.5bn (£3.3bn) for Afghanistan.
The tweet by the premier, which read: There is an urgency for the international community, as well as their obligation under the unanimously adopted UN principle of Responsibility To Protect (R2P), to provide immediate humanitarian relief to millions of Afghans on the brink of starvation,” however, garnered much criticism. In response of this tweet, former Foreign Office spokesperson Abdul Basit tweeted: “R2P has nothing to do with the current humanitarian situation in Afghanistan. Please take to task who came up with this frivolous and dangerous interpretation of R2P.” Moreover, noted legal expert Feisal Naqvi pointed out that Pakistan was opposed to the “constructivist concept of R2P because it is often wrongly used by stronger states to intervene. For example, India used R2P to justify its 1971 invasion of then-East Pakistan.” Later, in a clarification tweet, the premier said, “One pillar of R2P is to help protect people from mass scale humanitarian crisis left in the wake of a prolonged conflict. Right now millions of Afghan [people] are in danger of starvation. It is duty of int[ernational] community to provide humanitarian assistance.”
In the following write-up, we will take a look at the concept of Responsibility to Protect, more commonly known as R2P.

Introduction
The Responsibility to Protect (R2P) is a set of principles designed to protect civilians from genocide, war crimes, ethnic cleansing and crimes against humanity. The concept implies a duty to react to situations in which there is compelling need for human protection. If preventive measures fail to resolve or contain such a situation, and when the state in question is unable or unwilling to step in, then intervention by other states may be required. Coercive measures then may include political, economic, or judicial steps. In extreme cases – but only extreme cases – they may also include military action.

Background
The International Committee on Intervention and State Sovereignty developed the concept of R2P during 2001.
The United Nations (UN) was established in 1945 to prevent conflicts between states. But with the end of the Cold War, inter-state aggression largely gave way to war and violence within, rather than between, states. When, during the 1990s, horrific violence broke out inside the borders of such countries as Somalia, Rwanda and the former Yugoslavia, the world was ill-prepared to act and was paralyzed by disagreement over the limits of national sovereignty. So, the R2P concept emerged in response to the failure of the international community to adequately respond to mass atrocities committed in Rwanda and the former Yugoslavia.

Core Principles
The ICISS report identifies the following core principles:
(1) Basic Principles
a. State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself.
b. 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.
(2) Foundations
The foundations of the responsibility to protect, as a guiding principle for the international community of states, lie in:
a. obligations inherent in the concept of sovereignty;
b. the responsibility of the Security Council, under Article 24 of the UN Charter, for the maintenance of international peace and security;
c. specific legal obligations under human rights and human protection declarations, covenants and treaties, international humanitarian law and national law;
d. the developing practice of states, regional organizations and the Security Council itself.
(3) Elements
The responsibility to protect embraces three specific responsibilities:
a. The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk.
b. The responsibility to react: to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and, in extreme cases, military intervention.
c. The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.
(4) Priorities
a. Prevention is the single most important dimension of the responsibility to protect: prevention options should always be exhausted before intervention is contemplated, and more commitment and resources must be devoted to it.
b. The exercise of the responsibility to both prevent and react should always involve less intrusive and coercive measures being considered before more coercive and intrusive ones are applied.

How does it work?
At the heart of the R2P norm is the principle that states, with the aid of the international community, must act to prevent mass atrocity crimes. Central is the idea that concerned outsiders should help states prevent these gross abuses through what the UN document characterizes as “diplomatic, humanitarian and other peaceful means.” This includes strengthening state capacity through economic assistance, rule-of-law reform, the building of inclusive political institutions; or, when violence seems imminent, through direct mediation. The intense diplomatic engagement following the disputed election in Kenya (2007), or the work of neighbours and the UN to support the government of Burundi as it addressed ethnic conflict (1995-2005), demonstrate cooperative efforts to prevent atrocities.

Only when such means have been unsuccessful should the international community, acting through the UN Security Council, turn to coercive measures. These could include such measures as sanctions, arms embargoes, or the threat to refer perpetrators to the ICC. Should peaceful means be inadequate and the state be manifestly failing to protect its population, then — and only then — would the Security Council consider the use of military force.

How does it affect sovereignty?
States have long accepted limits on their conduct, whether towards their own citizens or others. The UN’s Universal Declaration of Human Rights requires that states protect individual and social rights; the Geneva Conventions and various treaties and covenants prohibiting torture, human trafficking, slavery or nuclear proliferation similarly restrict state behaviour.

At the same time, there has been a shift in the understanding of sovereignty, spurred both by a growing sensitivity to human rights and by a reaction to mass atrocity crimes perpetrated against civilians by their own leaders.

Francis Deng, the former UN Special Adviser on the Prevention of Genocide and the former representative of the Secretary-General on internally displaced persons, developed the concept of “sovereignty as responsibility.” Chief among those responsibilities, Deng and others have argued, is the responsibility to protect citizens from genocide, war crimes, ethnic cleansing and crimes against humanity.

How it differs from ‘humanitarian intervention’?
‘Humanitarian intervention’ and the R2P share the conviction that sovereignty is not absolute. However, the R2P doctrine shifts away from state-centred motivations to the interests of victims by focusing not on the right of states to intervene but on a responsibility to protect populations at risk. In addition, it introduces a new way of looking at the essence of sovereignty, moving away from issues of ‘control’ and emphasising ‘responsibility’ to one’s own citizens and the wider international community.

R2P and International Law
While states admit a moral responsibility to take action against states that violate human rights and international criminal law, international law does not create any legally binding obligations on states to prevent or punish violators of human rights. it is extremely hard to prove that states have a positive duty to take collective action. No specific consequences are attached to a state’s failure to act according to the ILC Articles on State Responsibility. Furthermore, sanctions against inaction by an international organization like the United Nations are almost impossible to determine or even imagine in international law. At best, third parties may consider protesting against the inaction, but if states in the international community do not live up to their responsibility to protect, existing international law is unable to coerce these states to take collective action.

The only hope that the responsibility to protect may become part of international law in the future is if the concept is accepted as customary international law.

The writer is an Advocate High Court.