Responsibility to Protect: Feasible Concept or Utopia

Anne Orford "Lawful Authority and the Responsibility to Protect" in Richard Falk et al, eds, Legality and Legitimacy in Global Affairs (Oxford: Oxford University Press), 266-67.
2005 World Summit, GA Res 60/1 (IV), UNGA, UN Doc A/RES/60/1 (2005) 138.
Ibid at art. 139.
Ibid
Otis, B., Virgil: a Study in Civilized Poetry (Norman: University of Oklahoma Press, 1995) p 314.
Orford supra note 1 at pages 258-61
Ibid at pp 264-65
Lecis, M., "La NATO nella crisi del Kosovo" (2008). Osservatorio Balcani e Caucaso. URL: http://www.balcanicaucaso.org/Tesi-e-ricerche/La-NATO-nella-crisi-del-Kosovo-37614
T. d'Aquino, Somma Teologica (Bologna: Edizioni Studio Domenicano, 1991), pp 11-12
UNEP samples from depleted uranium sites in Kosovo now being analysed in five laboratories, NATO (2001), URL: http://www.nato.int/du/docu/d010105e.htm
Magni, S., Kosovo, 10 Anni dopo il pogrom anti-cristiano. La nuova bussola quitidiana (19 March, 2014), online: http://www.lanuovabq.it/it/articoli-kosovo-10-anni-dopo-il-pogrom-anti-cristiano-8722.htm
Pugliesi, M., "Guerra e Diritti Umani in Iraq" (2010) Archivio Disarmo. URL: http://www.archiviodisarmo.it/index.php/en/publications/magazine/magazine/finish/57/96
Orford supra note 1 at pp 258-61


Responsibility to Protect:
Feasible Concept or Utopia?






Leonardo Rivalenti
101020966
GINS 1010 B
TA: Cameron Climie
Due date: March 11, 2016


In the article "Lawful Authority and the Responsibility to Protect", Anne Orford (2012) argues on the importance of this concept present in international law. In her article, Orford presents at first an historical background of the principle, showing several important cases where such prerogative has been used in order to support a military intervention. Then, she discusses the theoretical bases of the Responsibility to protect concluding leaving open some issues related with such concept, its application and its effectiveness in foreign politics. Charging the states around the World with the responsibility to protect not only their own population (which is what they are meant for) but also other populations that are not being able to protect themselves alone is something that can bring serious consequence and rise many diplomatic concerns about whether or not it should be invoked and how it should be applied. Such debates usually gravitate around the fact that, despite the nobility of the initiative to introduce such responsibility, in practice it may result unrealistic, inapplicable and become an instrument of justification, for major powers, to enact intervention in order to accomplish with their own geopolitical interests. Having set this consideration, the purpose of this essay would be to demonstrate that, despite the theoretical implications, the Responsibility to Protect remains just a tool of the Realpolitik, to be used by geopolitical actors to protect their own interests abroad.
On one side, there is few doubt on what does Responsibility to Protect mean in the context of a State: as stated in the Article 138 of the Resolution 60/1 of the United Nations General Assembly: "Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity". However, by the other, the concept becomes more ambiguous when it is discussed at an international level: on this topic, the same resolution states that "The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity", continuing saying that, however, "In this context, we are prepared to take collective action, in a timely and decisive manner, (…) should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity." The first thing that needs to be acknowledged is that, historically, States claimed upon themselves the responsibility to protect weaker and undefended populations against potential major threats, an example of it can be found even in the Eneid of the Roman poet Virgil, when he states "Romane, memento:hae tibi erunt artes, pacisque imponere morem,parcere subiectis et debellare superbos."("You, Roman, remember, You were born for the Empire of the World: yours is the task to impose peaceful laws, bring forgiveness to the defeated, and death to the superb peoples"); moreover, it became increasingly common, throughout the nineteenth and twentieth century to see states declaring wars with the pretext of defending their own nationals (or ethnic nationals) in the territory of another country. Despite this not being a new concept, it must be noticed that its introduction in International Law is recent: the debate over the existence of such principle only started in 200, after the massacres in Rwanda and Former Yugoslavia during the 1990s, while its formalization only happened in 2005, in the Resolution already mentioned.
In her article, Anne Orford follows a logical and realist line of thinking on the R2P (Responsibility to Protect), finding its bases in the ideas of Thomas Hobbes and Carl Schmitt on the State. She argues, based on those political thinkers that the main duty of the State and the base of its legitimacy is ensuring that the populations submitted to its control would not be threatened in any way by external or even internal enemies. Therefore, she follows arguing that, once that a State fails in accomplishing such duty toward its subjects, its legitimacy is automatically removed and then what once was submitted to its control can be transferred to the control of another power, that would be able to accomplish with such duties. Here we could without mistake argue that such principle does not need to be written in a treaty or in a charter to be recognized but it already exists in nature, or in customary right. In fact, what can often be observed throughout the history is that states and even civilizations, after having reached a point of crisis where they become unable to protect themselves by enemies, normally ended falling under the pressure of one of this external agents that, after having assumed the control over such population, claimed to be protect these same, once that this was not able to do it by itself. Having set these considerations, we can observe that an historical analysis lead us to consider that a principle that saw a State as responsible to protect its subject and, furthermore, to protect those populations that are not able to protect themselves alone (as can be suggested by the institution of the Protectorate, often used in the past), is something historically present in the global diplomatic tradition.
What results as new, however, is the idea of protection as a responsibility that a stronger country has over a weaker. In fact, as we said in the previous paragraph, in the past the "protection" was used as justification for unilateral interventions of a given country in another, this country however was not obliged to do so in anyway, unless by propagandistic claims like the "Mission to Civilize", publicized in many countries until the end of the first half of the past century. Yet in much more recent times, after that the massacres in Rwanda (1994) and Srebrenica (1995), that shocked the public opinion in many countries around the world for both the crudeness of the events and the incapability of the International Community to properly react, has been raised the debate over the possibility to turn what in the past countries considered a right into a responsibility, leading to the Resolution 60/1 of 2005. With such resolution, it has been stated that the International Community, that means all the countries members of the United Nations, are responsible and thus obliged to ensure that each population in the World would be kept safe from threatens like massacres, genocides, and any other similar act that would put in risk their existence. Here Anne Orford elaborates her critic to the concept by stating that in such way, despite the potential positive outcome that such initiative has, it also becomes it can be used as casus belli that countries can use as justification to enact military interventions whenever their own interests might be threatened.Realistically looking at the ways by which diplomacy and geopolitics has always been (and still are being) conduced, Orford's suspect might easily result evidently right: hardly a State would change its own political agenda in order to conduce a military campaign abroad without expecting anything in return. Even when we look at the N.A.T.O. unilateral intervention in Yugoslavia, justified by Human Rights violations, we can easily notice how it had a geopolitical and strategic aim: as has been reported by the Italian think-tank "OsservatorioBalcani e Caucaso" in 2007, the intervention (opposed by Russia and China), not only targeted military objectives but also industrial infrastructures, in such way that, at the end of the war the country's economy collapsed and for it has been impossible to maintain its independent external politics.This example to demonstrate that very hardly a State would be disposed to mobilize its forces without a specific interest, for the reasons that we will provide in the following pages.
The first and probably a key reason that justify what we said is that one of the presuppositions, on which this R2P is based does not correspond to the reality of the facts: the notion of an international community as a compact body. In fact, the way in which the Responsibility to Protect is introduced in international treaties, calls (very idealistically) for States to assume such responsibility as a compact and unique body with a common interests. In the same way, when approaching such topic, Anne Orford supports it basing her thesis in the ideas of Thomas Hobbes and Carl Schmitt, both philosophers that did a considerable work in discussing the role and the tasks of the State and the bases of its legitimacy, but whose works, if applied to the actual context of international relations can lead to significant misconceptions. Such misconception, that in Orford's chapter may have been originated by those authors but in the international community are much more likely to have been originated by the liberal and even by the constructivist theory led to see the current evolution of geopolitics into some kind of Global Polis, which is the only presumption that could serve as base to give to any country in the World the right to invade another in name of the protection of the citizens of this last. Unfortunately, such view, of a Global Polis, with a global Common Good, when confronted by the reality of the facts, is easily overthrown by an individualistic and particularistic view and development of the relation. Adopting the Saint Thomas of Aquino's concept of common good, we can define it as the common finality and interest that a group of persons share. Historically, getting closer to Hobbes' ideas, we can affirm that the existence of a common finality favoured the institution of the Polis, or more generally of communitarian settlement put under the rule of an authority, in order to protect its members from external threatens. In the same way that external threatens became more powerful than single Polis these started finding common interests among them, and merging their power in Realms, Federations, Republics or other institutions with the first characteristics proper of a State. In the actuality, the increasing of globalization and the emerging of Global Powers (such as the United States or China), are making smaller nation-states weaker and thus more likely to have a common finality among them that may lead to the formation of new Alliances, Leagues, or Unions (such as the European Union); in the same way, Great or Emerging Powers, in order to counterbalance the others' power can enact new partnerships (like the N.A.T.O. or the B.R.I.C.S.), in order to better protect themselves and the common interests that they may share. Anyway, what we observe in all these cases is that hardly such common interest is able to go beyond the regional sphere. Normally the common good that some nations may share among themselves is strongly determined by geography (so the Visegrad Alliance aimed to include Eastern European countries to protect the common good of preventing any potential threaten coming from Russia), or in some other cases by a shared condition (so the B.R.I.C.S. are located in very different geographical positions but share the condition of emerging country and want to protect their developing process as a common good that they share), however, there is nothing that constitute a threaten for all the countries in the World and that is stronger than all them (condition that would create a common good), nor something else that would bring a common finality able to make fall apart particularistic aims. Even the topic of climate change, which existence is challenged by many sides and which agreements on it are hardly respected, is proven not to be such common interest that would have been able to unite the entire international community. Remains thus clear that, once that there is not a global sense of community (nor there would be in the future, unless we would suffer an alien invasion or a meteorite would threaten the existence of life on the Earth), it is also impossible to try to establish a common responsibility to protect other populations.
Another important point that might be raised on the topic of the Responsibility to Protect is on where lies the limit between real protection and invasion or military expansion. In fact, often what is seen in the cases of humanitarian interventions is that, not only the regions that suffer the intervention lose its independency becoming, for a certain period, a territory administered by the United Nations or some external power, but also that often, when a country or an alliance intervenes in a country claiming the responsibility to protect, from the intervention results several other violation of human rights and other outcomes that raise the question on whether this can be considered protection. An excellent example of this critic is provided by the first example in which the R2P has been invoked: in the Kosovo intervention of 1999, the N.A.T.O. force deployed Depleted Uranium weapons against the Serbian Army in the region, causing radioactive contamination in several areas in Kosovo, affecting the health of the local population and of many of the soldiers that participated in the mission.Another point that remained controversial in the Kosovo crisis was the counter-persecution that the Serbian minority faced by the K.S.A. (Kosovo Liberation Army) after the international intervention. Paradoxically, while the Serbian intransigent policy toward the region caused a general sympathy toward the Kosovarian people at the point of legitimating a military invasion and bring to the Ajax Tribunal the former Serbian Prime Minister, Milosevic, the Kosovo/Albanian crimes, on the other side, had much less repercussion. This again demonstrated how the responsibility to protect, in the first time that has been invoked as international principle, proved to be just a tool for justifying a unilateral invasion, moved by geopolitical interests. Another case deserving attention is the U.S. military intervention in Iraq. In that same case, under the pretext that Iraq (a country already in very complicated relations with the U.S.) was producing nuclear weapons (proved later false), the United States invaded the country and overthrew Saddam Hussein's regime. After that, Hussein and other Iraqi high-ranked officers had been tried by local courts and condemned (Hussein was sentenced to death), and the country remained under Western occupation. However, since the first years of the occupation, it has been frequently exposed that the United States Armed Forces and their allies committed, under the pretext of war on terrorism, considerable human rights violations, such as massive arrests and torture of civilians, as reported by the Italian N.G.O. ArchivioDisarmo. Again, for these crimes, despite some international sympathy manifested by the public opinion towards the Iraqi population, very few has been done, once more, for being the occupant a global power, nobody was in conditions to invoke a responsibility to protect the persecuted and, once that nor the U.S. authority, nor the pro-American Iraqi Government who also participated to such violations were likely to submit the suspects for these violations to an international tribunal, the cases did not found any significant repercussion. Those cases share several commonalities useful for our purposes: both has been N.A.T.O. initiative and reached governments of countries whose external politics were damaging or opposing the interests of the Western countries in their respective regions, moreover, despite claiming a humanitarian purpose, both the interventions divided the international community between favourable and against. Furthermore, in both cases, at the invasion followed the establishment of a government more favourable to the interveners and, especially, the changes in geopolitics on what was against the interests of the coalition. Thus, what becomes evident here is the inconsistency of the claims of humanitarian intervention made under the flag of Responsibility to Protect, once that those missions always ended proving themselves to be just military campaigns carried on by major power in order to ensure their geopolitical control over a certain region and to protect their own interests in those places, with that minimizing any sincere idealistic purpose that might have been behind the stating of such responsibility.
We believe that the marks made throughout the essay can be considered exhaustive to assume e definitive position on Orford's chapter and on the validity of the Responsibility to Protect. Thus, following what has been said, we can conclude that we can follow Orford when she cites Carl Schmitt on the responsibilities and the raison d'etreof the State: the State has the function of defending the common good of the society that has been destined to rule and with that to protect this society from anything that could threaten its order, internal peace, stability and existence, being this threaten external (an enemy country, a terrorist organization etc.) or internal (a guerrilla movement, a radical and violent social-political organization etc.). Here again we agree that, depending on the social and political environment in which the state is developed, it might need more or less authority, depending on the relevance and the incumbency of the threaten, for an authoritarian regime, even with its excesses would be preferable at a state of anarchy, where a state of constant conflict and chaos would predominate, merging here our ideas with Hobbes' ones. By the other side we cannot agree with Anne Orford on the developments that a failure from a State in protecting its citizens should take. In fact she advocates to international compact responses to such situations, invoking the R2P as a common flag that the entire International Community as a whole can raise; however we believe having proved throughout the essay that such thesis is not only completely idealistic but also has been discredited by the reality of the situations where such responsibility has been invoked. It came out that those who invoked such responsibility did it unilaterally and, mainly to protect their geopolitical interests in the target of the intervention, having thus the protection of human life served only as casus belli. It remained clear, at this point, that this principle would only be feasible as a global common good only if there would have a unique global government, whose authority would challenge the one of the single state, however such possibility is not realistic and much less desirable for anyone. With that we could conclude stating that the Responsibility to Protect should not have space in international relations, for being an instrument of war. However, even from this point of view could be made a last argument in defence of it, thus agreeing, at the end, with Orford's opinion. In fact, assuming that, where a State is failing to accomplish with its duty, its subject are not being able to replace it with something equally efficient and thus are falling into anarchy, external agents that could be able to assume this obligation starts having the right to intervene there and assume it, even if by non peaceful means. Naturally this thesis assumes that strategic, diplomatic and geopolitical interests of singular states would never cease to exist, consequently states would never stop to do whatever in their power to enforce their pretensions. At this point it can become potentially beneficial, or at least less harmful for the populations that will suffer the intervention if the interveners would, at least, once that they will being doing so, also assume the responsibility to protect the civilians that they will find in the territory occupied and prevent them from falling into disorder and anarchy.
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