Human Rights and International Law (18): Responsibility to Protect (R2P)

The “Responsibility to Protect“, or R2P in U.N.-speak, is a humanitarian principle that aims to stop mass murder, genocide, ethnic cleansing, war crimes and crimes against humanity. It refers initially to the responsibility of states to their own citizens, but in case states can’t or won’t protect their own citizens, other states can step in, respecting the Security Council procedures. However, this is a last resort, especially if the intervention is of a military nature.

The concept is closely linked to, if not indistinguishable from, humanitarian intervention. Often it’s also called the principle of non-indifference, a sarcastic pun on the principle of non-intervention. Some for whom national sovereignty and non-intervention is still the main and overriding rule in international affairs, see R2P as an excuse for Western interference. Noam Chomsky is a notable if unsurprising example. You can read his arguments here. He is joined by a number of governments that risk being a future target.

However, most in the West aren’t jumping the queue to enter into a legal obligation that can force them to undertake expensive and risky interventions in the name of humanity. The fact that these interventions aren’t only expensive and risky but often also without collateral benefits, doesn’t help either. R2P is not yet a legal rule, more a quasi-legal rule. Some legal or quasi-legal texts include the concept. The Constitutive Act of the African Union includes “the right of the Union to intervene in a member state pursuant to a decision of the African Union assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity”. The same is true for the Security Council of the UN. The concept was endorsed unanimously by heads of state during the World Summit of 2005, so it can be argued that the principle is part of international common law (i.e. international law established by coherent and unanimous state practice).

Human Rights and International Law (14): Human Rights vs. Humanitarianism?

In this post, I want to look at some of the differences – and perhaps conflicts – between human rights activism and humanitarian action (or humanitarian intervention). Obviously, some definitions to start with. There’ve been enough discussions on the definition of human rights on this blog, so I’ll focus now on humanitarianism. (Note: I’m leaving aside the more problematic issue of armed humanitarianism).

Definition of humanitarianism

According to Wikipedia,

humanitarianism is an ethic of kindness, benevolence and sympathy extended universally and impartially to all human beings. No distinction is to be made in the face of human suffering or abuse on grounds of tribal, caste, religious or national divisions.

However, the concept of humanitarianism has become more precise and restrictive over the last decades. In fact, it is now generally understood to be shorthand for “international humanitarian action“, which in turn means international emergency action to alleviate widespread human suffering resulting from war, civil war, famine, drought, natural disasters and other humanitarian crises representing

a critical threat to the health, safety, security or wellbeing of a community or other large group of people, usually over a wide area. (source)

When you think about humanitarianism, you think about the Red Cross, the UNHCR, MSF, WFP etc. The focus is on the alleviation of widespread suffering and the saving of lives.

Hence, there is a close link between humanitarianism and human rights activism. Humanitarianism deals with rights violations. The absence of suffering is a human right, as is life. Of course, human rights are about much more than that. Free speech, democracy, religious liberty etc. are not about suffering or death, at least not normally). Nevertheless, humanitarianism shares its goals and ideals with part of the human rights agenda, and can therefore be understood as a subset of human rights activism.

Differences between humanitarianism and human rights activism

This link doesn’t mean that there are no differences between the two approaches. I’ll try to mention a few of them here. Apart from the more narrow scope of humanitarianism, compared to human rights activism, the main differences are:

Short term and urgency

Humanitarian agencies such as those mentioned above are by definition engaged in conflict zones or disaster zones. Their only objective is the protection of civilians against immediate harm resulting from war, famine etc. Hence, they are focused on the very short term future: making sure people survive, have enough to eat and are physically secure. Human rights activism, on the contrary, will also look at longer term results and less urgent needs, such as education, institutionalized (as opposed to emergency) healthcare, poverty etc.

Forward looking

Humanitarianism is mainly forward looking, whereas human rights activism reserves a lot of its attention to the past, and more specifically to justice for past human rights violations (including criminal justice).

Immediate causes

Humanitarianism also looks at the immediate causes of suffering, e.g. a war, a disaster etc., whereas human rights activism will tend to identify the root causes behind these immediate causes, e.g. bad governance, poverty, discrimination and other “structural injustices” which surpass the timeframe and the tools of the humanitarian.

Unconditional

Humanitarianism means unconditional action. Given the urgency of the suffering they want to alleviate, agencies will go in, no matter what. The war can still be going on, the disaster can be unfolding… The human rights activist, however, will often point to prerequisites which have to be present before some specific human right can be realized, and without which action is futile (e.g. the removal of a dictator as a prerequisite for freedom of the press). A related point: humanitarianism takes a few human rights in isolation, and works on those only. A human rights activist will look at the whole system of human rights, and stress the interdependence of all human rights.

Political neutrality

Humanitarianism tries to be neutral. It doesn’t take sides in a conflict or in a (civil) war. All suffering is viewed as equally deserving of alleviation, whether it is the suffering of the victim or the suffering of the aggressor (“a universal duty to act in the face of human suffering”). This isn’t moral relativism, but a practical necessity in many cases. If the humanitarian agencies want to have access to the people who are suffering, they often don’t have the luxury of criticizing any of the parties in the conflict, of outspoken public advocacy, and of “naming and shaming”.

The human rights activist, on the contrary, has to take a stand. Human rights aren’t politically neutral. They require, to a certain extent, democratic government, and non-democratic government is often a root cause of many rights violations.

Cultural Rights (11): Genocide

 

Genocide is the deliberate, systematic and violent destruction of a group (an ethnic, racial, religious, national or political group). This destruction can take many forms:

  • the outright murder of (the majority of) the members of the group
  • inflicting conditions of life calculated to bring about destruction
  • measures intended to prevent births
  • systematic rape as a means of terror and a means to “dilute” the identity of the group
  • forcibly transferring children of the group to another group
  • destroying the (cultural) identity of the group (forceful assimilation; imposition of a language, religion etc.)

“Systematic” is important here. Short-term outburst or pogrom type actions will probably not amount to genocide.

The “intent to destroy” is also crucial when labeling actions or campaigns as genocidal. The destruction, however, doesn’t have to be physical (i.e. large-scale murder). As is obvious from the list above, cultural destruction or destruction of the groups’ separate identity is also genocide.

Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide states that genocide is

“any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group…”

The “in part” bit has led to some confusion. When is the part of the group that is being destroyed big enough to warrant the label of genocide? There is still some discussion about absolute numbers of victims, percentages of the total population of the group, degree of killing in the territory controlled by the killers etc.

Of all the generally recognized genocides that have taken place throughout human history, the most infamous ones occured in the 20th century (the Holocaust, Rwanda, Armenia, Cambodia, Stalin’s forced famines, Mao’s Great Leap Forward etc.).

Before a genocide is actually carried out, the perpetrators usually take a number of “preparatory” steps:

  • dehumanization of a group (vermin, insects or diseases…)
  • promotion of narratives of “us and them
  • hate propaganda, polarization
  • criminalization of a group (group has to be eliminated “in order that we may live”; them or us)
  • identification of victims (“yellow star”)
  • concentration of victims (ghettos)
  • mobilization of large numbers of perpetrators
  • state support and logistical organization (arms, transport, training of militias etc.)

The causes of genocide are often hard to pin down. They include:

  • long-lasting tensions
  • imbalances in political power
  • imbalances in wealth or economic power
  • scarcity
  • religious incompatibilities
  • indoctrination and propaganda
  • civil war
  • ideals of cultural purity and autonomy
  • ethnological constructs (e.g. the creation of “hutuness” in Rwanda) which get a life of their own
  • colonial heritage
  • outside indifference
  • etc.

Human Rights and International Law (3): Humanitarian Intervention

This post focuses on one type of humanitarian intervention only, namely so-called armed humanitarian intervention (although I’ll drop the “armed” for easier reading). Humanitarian intervention is an armed intervention in one state by another state or states with the objective of ending gross violations of human rights, such as genocide or ethnic cleansing.

Whereas the moral case for such an intervention is very strong, it remains controversial because of the fact that violence is used and that the national sovereignty of the “receiving” state is violated. One could easily justify the breach of sovereignty since the fate of the victims is obviously more important than sovereignty. Furthermore, this breach is inherently temporary because neither annexation nor interference with territorial integrity is at stake. But the use of violence is more difficult to justify.

It seems that humanitarian intervention is only justified when certain conditions are met:

1. Legitimate authority

The states that act cannot unilaterally decide that intervention is necessary. There must be some kind of general conviction that the situation is serious and that some kind of forceful intervention is warranted. A Security Council resolution can be the authority.

If there is a general conviction that action is necessary but there is no explicit Security Council approval of intervention – because of the veto or because of other reasons – then we have to be careful. If states can unilaterally decide to intervene, even against world opinion, then we have international chaos. Everybody takes the law in his own hands, and states will quickly find human rights excuses to intervene wherever they want. Some legitimate authority must have expressed something close to a world opinion regarding the necessity of intervention. Individual actors cannot decide autonomously. An approval of the General Assembly may indicate that there is consensus, but a Security Council resolution is better because this will guarantee that the intervention will not cause superpower conflicts.

2. Collaboration

As an elaboration of the previous point, one must demand that the intervening states be as numerous as possible in order to avoid accusations of self-interest, partiality and power politics. Collaboration also increases the chance of success (see condition 4.)

3. Right intention or appropriate goal

The main goal of the intervention must be the protection of human rights. The accusations that often accompany US-led interventions are generally unhelpful, except of course when they are true.

4. Probability of success

There must be a real chance that the intervention can be successful.

5. Last resort

Other and more peaceful means must have been tried first, although the urgency of the matter can make immediate military action acceptable.

6. Proportionality

The intervention must be proportional to the evil it is meant to destroy. Not enough intervention can cause more harm than before without a real chance of solving the initial problem. Too much intervention will also cause more harm than before. The costs must not outweigh the benefits. We must prevent more harm than we cause, although one must be careful when making utilitarian calculations. Violence always results in rights violations. Hence the rights violations one is willing to accept as a consequence of violent intervention cannot outweigh the violations that originally caused the intervention. How many rights violations can one cause when fighting rights violations? Theoretically, one cannot sacrifice certain people’s rights – for example, the rights of innocent civilian victims of air bombardments – for the sake of other people’s rights – for example, the victims of the dictatorship that is the target of the bombardments. However, most of us believe that in extreme circumstances, it is acceptable to sacrifice some rights or the rights of some in order to protect many more rights or the rights of many more. This means that violence is only acceptable in extreme cases, namely when the rights of many or many rights are violated.

7. Ius in bello

The laws of warfare must be respected.

8. Peace

If there is a threat to international peace, then the intervention will have a stronger claim to legality. But this is not a necessary condition.