The Responsibility to Protect, State sovereignty and the case of Libya

📝 An article written by Marilia Platsa, Junior Student at the Law School of Athens

1. Note

From the international law standpoint, states are sovereign which means that they have the authority to make decisions for the people and the resources within their territory. But what happens when a country is unwilling or incapable of protecting its own citizens’ welfare and fundamental human rights? The Responsibility to protect doctrine comes to provide an answer to this question. Which are the three pillars of R2P? Does it block the realization of a state’s sovereignty notion? Was its application successful in the case of Libya and how the international community approaches it? All the above mentioned issues will be analyzed in this article.

1. Introduction

In the aftermath of the brutalities committed during the 1990’s -the Balkan wars, the Rwanda genocide and the military intervention in Kosovo carried out by NATO- and exacerbated by the failure of the international community to prevent them and act properly, questions were raised concerning the most suitable way to tackle instances of outright and systematic encroachment of human rights. A significant report published by the International Commission on Intervention and State Sovereignty (ICISS) in 2001 officially introduced the concept of the “Responsibility to Protect” (R2P), which was then adopted in 2005 by the UN World Summit. In essence, it indicated that the primary responsibility for ensuring a population’s safety and wellbeing, in general, lies with the state. However, it grants to the international community the authority to interfere in case a particular state proves to be incapable of handling the situation and safeguarding its people’s welfare. Does the above mentioned provision actually challenge the predominant and deeply rooted norm of “sovereignty” of the state? The analysis of this premise in conjunction with the evaluation of R2P’s application in the case of Syria constitute the core focus.

2. Brief analysis of the notion of State sovereignty

Initially, an in-depth retrospection of the origins of the state sovereignty notion is deemed necessary to better define and understand its content. The Treaty of Westphalia (1648) inaugurated an era of –mostly-sovereign states in Europe. The aim was to extricate the princes from all kinds of imperial control. In fact, even though the Empire was not torn apart, the princes were eventually able to form alliances, thus taking decisions and practice power in the external affairs, a significant piece of the puzzle of sovereignty. The Treaty’s accomplishment was that the intervention of external challengers –for instance, other states or religious factors- into another state’s affairs ceased. The sovereign state gained legitimacy as a type of political structure. Moreover, for an entity to be accredited as a state, it needed to have a government, which exercises full control over its territory and is independent of foreign states. A state could decide on its activities solely on the base of its own will without any outer- imposed restrictions. In interpreting this notion in traditional terms, it is evident that sovereignty entails “authority” not only over the territory but also over its residents without having to justify its actions to any higher power, hence conceived as posing a threat to the international stability and security. A striking example is the case of the two World Wars and the atrocities that accompanied them because of the unlimited power the states had the right to exercise. To ensure that such incidents will not take place again, the international community figured out that a novice interpretation of the “sovereignty” notion taking into account the constitutive human rights was inevitable. The Responsibility to Protect was the most recent and innovative concept aiming at it, which in general promotes the protection of human rights and places the sovereignty of the state second when it comes to humanitarian emergencies.

3. The novice doctrine of R2P and its three pillars

The Responsibility to Protect encompasses the notion that it is the responsibility of the sovereign state, in the first instance, to safeguard its citizens from the risk of genocide, war crimes, ethnic cleansing, and crimes against humanity. Should the said state fall short of dealing with the imperatives of the positive responsibilities undertaken towards the population due to either unwillingness or incapability, there is a further provision; the role of the international community in taking charge of the situation by employing diplomatic, humanitarian, and other means to provide a safety net to the people in peril. The use of force is far from acceptable as a solution and is justified only after the permission of the Security Council according to Chapter VII of the United Nations Charter. It is notable that the term humanitarian intervention and its former application is considered the ancestor of the R2P, while there is an effort to detach the two terms in order to erase the bad memories of using it as a pretext to serve the Western imperialistic actions.

The R2P is divided into three fundamental pillars: the responsibility to prevent, to react, and to rebuild. The responsibility to prevent lies first and foremost with the state that has to assure the respect of the rule of law and its constant economic growth and social development enjoyed by all citizens. Nevertheless, in case of failure, the international factors should contribute to the prevention of such atrocities. It could take the form of assistance to the state with a view to elevating its performance in economy, politics, health, law, society in general or even impose measures as sanctions for its indifference. For such an intervention to serve genuine purposes, there are three criteria to be fulfilled. First of all, it is imperative that all parties realize the dangers lurking in case of conflict affecting not only the interested region but the whole community. In addition to this, the preemptive measure should be efficient and accompanied by the necessary political will to implement it. In general indicative measures target at reinforcing democratic institutions, fostering economic development through investments and developmental programs while simultaneously dwindling economic repercussions using the assistance of World Bank and IMF. Establishing and strengthening legal institutions by enforcing the statutory rules, which carry international approval is a valuable weapon. The introduction of military and police bodies to provide security from foreign or domestic menaces supplements the efforts. The threat of using military force on behalf of the international community can only be accepted as a last resort.

The responsibility to react resides in the heart of this notion and is activated when a population is in need of protection for reasons mentioned above. For military forces to be justified as a means of reaction -in order to establish peace and stability- should fulfill certain criteria. The contemporary approach tries to eliminate the use of force as much as possible and it has shifted its focus on actions that are less harmful both for people’s life and for global funds. It includes political, economic, diplomatic sanctions upon the state that has failed to act on the responsibilities a sovereign state holds. This could mean cessation of military cooperation and diplomatic relations in all domains while also imposition of embargo. When these are proved unfruitful and commitment of genocide, war crimes, ethnic cleansing, and crimes against humanity are foreseeable, the international community turns to military intervention. There are six criteria placed by the International Commission of Intervention and State Sovereignty to limit the instances of using it: the just cause criterion, right intention, the last resort, proportionality, and reasonable prospects. Moreover, it indicates as the right authority to authorize the intervention of the UN and mentions as well some operative principles to be met.

The responsibility to rebuild comes last, albeit plays a major role in the reorganization of the state. To rebuild means to ensure a stable and virtuous government able to promote prosperity and safety of its own people. It means to eliminate the possibility of the outbreak of similar atrocities, which threatens the population's welfare and creates the need for intervention in the first place. Cooperation between the local authorities and the international entities is the first step to gradually re-grant the responsibilities to the state. Disarmament and demilitarization are bound to take place while also the police and military bodies should be reformed in conjunction with the establishment of a healthy judicial system. All to ensure human safety.

4. The correlation between State sovereignty and R2P

The outcome of the analysis of the two notions (R2P and state sovereignty) may give the idea that they are conflicting and mutually exclusive concepts. However, the proposed plan is for them to coexist in order to ensure both the independence of the state and the protection of fundamental human rights without one of them sacrificing itself for the sake of the other. In fact, the sovereignty used to be identified with authoritarian control and imposition of the state will coercively on people and resources within its territory. However, nowadays, sovereignty is conceived as responsibility; hence, it has a broader application. The state bears the responsibility to respect the sovereignty of other states while simultaneously to have regard for its people’s dignity and other basic rights inside its borders. Eventually it comes to supplement the most recent notion of R2P instead of impeding it.

5. The application of R2P in the case of Libya

In February 2011 uprisings arose in Libya inspired by the massive wave Arab Spring had been leading in other Arab states as well, in order to overturn authoritarian regimes. The rebellions were peaceful, albeit Gaddafi responded brutally in an effort to suppress them, even warning its people that whoever dared to oppose his regime would be executed. Nevertheless, the revolts were proved successful as they managed to regain control of 75% of territory previously dominated by Gaddafi. When the following civil war broke out, the international community thought it was high time it acted. Firstly, the United Nations approved Resolution 1970, which failed to prevent more atrocities in detriment to the Libyans. Thus on March 17 the UNSC passed Resolution 1973 which granted the authority to the states; “to take all necessary measures…to protect civilians and civilian populated areas under threat of attack” (UNSC,1973, 2011, p. 3). It was a direct application of the R2P concept and was broadly advocated on grounds that military intervention was bound to be necessary with a view to tackling the systematic encroachment of human rights. The UK, USA and France were quick to take action but soon all efforts were coordinated under the auspices of NATO. The military intervention order, targeted at controlling the arms embargo, protecting the no fly-zone and the civilians’ life. The ultimate goal was to alter Libya’s regime, which meant to overthrow Gaddafi. In October 2011, Gaddafi was indeed killed and the country entered an era of chaos.

After that, the military intervention in Libya conducted by NATO became a controversial matter. Advocates deemed necessary the military intervention in the country in order to successfully defend civilians. On the other hand, many doubted whether NATO’s intervention attained to protect civilians’ lives or worsened the situation and increased the number of casualties by attacking the cities controlled by Gaddafi’s forces. Regarding the realization of R2P via the provisions of Resolution 1973, questions were raised concerning how rapidly the international community turned to military intervention even though it is considered as the last resort. Besides, to legitimize their refugee to the concept of Responsibility to Protect it should have been a case of “genocide, war crimes, ethnic cleansing and crimes against humanity” and in this case the international community could justify its actions on the last, crimes against humanity committed by Gaddafi’s regime. However, NATO itself is held accountable for committing war crimes and crimes against humanity as well, throughout its military engagement. Moreover, the third pillar of R2P, the responsibility to rebuild, was neglected by the international community. The state of Libya was left in a chaotic situation, without a government capable of ensuring stability, security and prosperity for its population.

In general, the R2P is highly criticized by the non-Western countries, which see it as a pretext for Western countries to pursue their neo imperial plans. There is also an argument that it (R2P) can be manipulated to cover actions to which in fact do not apply, hence it questions the motives of the states. Last but not least, UNSC’s five permanent members Russia, China, the US, the UK and France –and economic giants- have the ability to block a military intervention within their borders using the veto right they obtain or impede humanitarian assistance to countries in need because of their interests in the region.

6. Conclusion

The relatively recent doctrine of R2P is evident that it stresses the importance of the state to ensure its people’s safety and then in case it fails, the international community takes over merely for humanitarian purposes. The interpretation of R2P and state sovereignty concepts as not mutually exclusive but as balancing each other indicates the shift from state security to human security nowadays. To safeguard the fundamental human rights, even military intervention can be used under certain conditions. The provisions of R2P notion, if handled accordingly, can prevent serious brutalities across the world or at least assist and rebuild a healthy -formerly disrupted-state with the cooperation of the international community, thus reinforcing stronger relations between states.