Alexandra Lort Phillips W1320533 April 5 th 2011

LLM Dispute Resolution

International Human Rights Module 1LM 7B2

‘The responsibility to protect is humanitarian intervention by another name’

Introduction

The statement refers to the term responsibility to protect, also known as R2P (used interchangeably
in this document), which is a doctrine of international law that has emerged in the relatively recent
past, since 2001, the norms of which are still being established. 1 The term humanitarian
intervention has a “long history”2 and its use precedes the responsibility to protect. Both doctrines
are concerned with protecting civilian individuals from the abuses of their own states and because
the issue of state sovereignty is at the heart of the matter they can both be seen to have emerged
from a much longer historical tension between sovereign state power and individual human rights.
Both are linked with the notion of a ‘just war’ which is dates back many hundreds of years. In order
to differentiate the two it will be necessary to define the terms and provide examples of their
differences. R2P emerges as a broader doctrine within which humanitarian intervention can be
found although many it seems would rather the term humanitarian intervention was replaced
altogether. The debate about them attracts both enthusiastic and cynical views within an already
controversial field where politics and international law meet.

Sovereignty and Human Rights

The issue of sovereignty, a norm enshrined in the UN charter articles 2.1 and 2.4 3 is defined as
“supreme authority within a territory” 4 yet its fundamentality poses a challenge when civilians
within a territory are at risk therefore a tension arises:

“’[d]oing something’ to rescue non-citizens facing the extreme is likely to provoke the
charge of interference in the internal affairs of another state, while ‘doing nothing’ can lead
to accusations of moral indifference.”5

The ascendance of human rights in international law since 1945 means the rights of states in terms
of sovereignty have begun to be circumscribed over time. The Universal Declaration of Human
Rights 1948 founded principles of individual rights and later conventions strengthened these. The
emergence of R2P can be seen as another way in which sovereignty has been influenced by human

1
The term was first used as the title of the report produced by the International Commission on State
Sovereignty and Intervention in 2001
2
International Commission on State Sovereignty and Intervention Report, ‘The Responsibility to Protect’
(Ottawa, 2001), p. 9
3
UN Charter
4
Stanford Encyclopaedia of Philosophy http://plato.stanford.edu/entries/sovereignty/#1
5
Wheeler, Nicholas J. (2000) ‘Saving Strangers: Humanitarian Intervention in International Society’, Oxford
University Press, p. 1
Alexandra Lort Phillips W1320533 April 5 th 2011
LLM Dispute Resolution
International Human Rights Module 1LM 7B2

rights. The current crisis in Libya is a stark example of the challenges faced by the international
community when a state turns on its own people and serves as a useful illustration of both concepts.
The Libyan situation has thrown human rights activists into opposing camps with some calling for
intervention in the form of a ‘no-fly zone’ over Libya 6 to protect innocent civilians and prevent
deaths while others condemned it as foreign intervention for geostrategic purposes likely to result in
further unnecessary civilian suffering. The question today is how much the responsibility to protect
could be said to be the same in all but name to humanitarian intervention. R2P may have been
designed to reposition or re-frame humanitarian intervention but the statement asks us to believe
that the newer doctrine is essentially the same as the older. It is possible to describe fundamental
differences in terms of meaning, obligation, origin and realisation of the terms but despite this the
issues around both are still being debated.

Responsibility to Protect

The term ‘responsibility to protect’ emerged following a report commissioned by the government of
Canada in response for calls by the then Secretary General of the United Nations Kofi Annan for the
international community to answer questions about responses to potential or actual human rights
abuses against populations by their own state. During the 1990’s it appeared that there was a lack
of consistency about ‘who, when and how’ the international community should respond to states
that attack, or fail to protect, their own populations. Therefore the challenge of standardising
international collective responses to such situations was laid down by in pleas to the United Nations
General Assembly in 1999 and 2000. In the aftermath of conflicts in Somalia, Kosovo and Bosnia,
where collective forces did take action to prevent civilian deaths, and in Rwanda, where the
international response did not prevent genocide, the Secretary General asked for greater consensus
and “unity behind the principle that massive and systematic violations of human rights -- wherever
they may take place -- should not be allowed to stand.” 7 In response to the Secretary General’s calls
for unity and consistency the Canadian government in 2001 announced the International
Commission on Intervention and State Sovereignty (ICISS) who with “a number of major

6
Online poll action website avaaz launched an online petition in favour of a no-fly zone, see
http://www.avaaz.org/en/libya_no_fly_zone_1?fp but was criticised by articles in several left-wing media
including the Guardian newspaper on Thursday 10 th March, see
http://www.guardian.co.uk/commentisfree/2011/mar/10/internet-activists-libya-no-fly-zone?CMP=twt_fd
and Counterpunch website article by Kate Hudson Chairman of the Campaign for Nuclear Disarmament
http://www.counterfire.org/index.php/articles/opinion/10997-dont-fall-for-a-no-fly-zone
7
Secretary-General Kofi A. Annan, General Assembly, 20 September 1999, ‘Secretary-General presents his
Annual Report to the General Assembly’. Viewed online at
http://www.un.org/News/ossg/sg/stories/statments_search_full.asp?statID=28
Alexandra Lort Phillips W1320533 April 5 th 2011
LLM Dispute Resolution
International Human Rights Module 1LM 7B2

foundations”8 made it their goal to consult a wide body of opinion on the matter and report back to
the General Assembly in order to provide clarity, guidance and direction. The resulting document
outlines basic principles that place responsibility to protect squarely within the meaning of
sovereignty yet add that “the principle of non-intervention yields to the international responsibility
to protect”9 where the state in question fails. The report explicitly differentiates ‘responsibility to
protect’ from ‘humanitarian intervention’ renaming the latter as “military intervention for human
protection purposes”10 presenting ‘responsibility to protect’ as a range of obligations with military
intervention for human protection as a final resort with proportionate minimal application. The
ICISS report in three main ways describes R2P as a new way of looking at intervention – firstly from
perspective of the community at risk, secondly of the sharing of responsibility of the state with the
international community and thirdly the need for ongoing prevention and rebuilding work that
should take place along with any military intervention. 11 The doctrine is described in further
substantial documents following the Commission report, 12 World Summit 2005 Outcomes
paragraphs 138 and 139,13 debated by the General Assembly in July 2009 and subject of a resolution

8
ICISS Commission Report, 2001 p. 85 “ ICISS was funded by the Canadian Government, together with major
international foundations including the Carnegie Corporation of New York, the William and Flora Hewlett
Foundation, the John D. and Catherine T. MacArthur Foundation, the Rockefeller Foundation, and the Simons
Foundation. ICISS is also indebted to the Governments of Switzerland and the United Kingdom for their
generous financial and in-kind support to the work of the Commission.”
9
See note 2 at p. XI
10
See note 2 at p.9
11
Stahn, Carsten, 2007, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’, 101 American
Journal of International Law, p.103
12
United Nations reform in the High-Level Panel report on ‘Threats, Challenges and Change’ in 2004, and in
2005 in the Secretary-General’s report ‘In Larger Freedom: Towards Development, Security and Human Rights
for All’, the World Summit Outcome report
13
World Summit Outcome Report 2005 paragraph’s OP 138: Each individual State has the responsibility to
protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This
responsibility entails the prevention of such crimes, including their incitement, through appropriate and
necessary means. We accept that responsibility and will act in accordance with it. The international community
should, as appropriate, encourage and help States to exercise this responsibility and support the United
Nations in establishing an early warning capability.
OP 139: 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. In this context, we are prepared to take collective action, in a timely and decisive manner, through
the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in
cooperation with relevant regional organizations as appropriate, 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. We stress the need for the General Assembly to continue
consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and
crimes against humanity and its implications, bearing in mind the principles of the Charter and international
law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to
protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to
assisting those which are under stress before crises and conflicts break out.
Alexandra Lort Phillips W1320533 April 5 th 2011
LLM Dispute Resolution
International Human Rights Module 1LM 7B2

of October 2009 (63/308) to continue to consider it. 14 The ICISS report includes questions of
authority and identifies the Security Council as the primary organ of decisions of a coercive nature
with the secondary or fall back role for the General Assembly but also suggesting that regional
organisations could take action through resolution with none of the above being binding on States
legally and use of force still being subject to Chapter VII requirements of the UN charter recourse to
the Security Council. The responsibility to protect was referred to by Louise Arbour, President of the
International Crisis Group15 interviewed on Radio 4’s ‘The World Tonight’ programme on 22 nd
February 2011,16 with regard to the international community’s response to the government of Libya
whose security forces are accused of the use of military weaponry against citizens. She described it
as a recent doctrine aiming to “transform the right to intervene into a collective responsibility to
come to the rescue of people who were preyed upon by their own governments.” At that time she
said in the case of events in Libya that military intervention (speaking on 22 nd February) would be
premature and that all diplomatic and other measures by regional or long-term partners should be
exercised before military intervention, thus implying the ‘responsibility to protect’ is a much broader
and more inclusive concept than ‘humanitarian intervention’. There are also ‘three pillars’ described
in the foundations of R2P which refer to prevent, react and rebuild responsibilities. 17 One of the
consequences of the invasion of Iraq in 2003, it has been said, is that for the responsibility to protect
“consensus has been shattered” 18 and will take a long time to rebuild however this invasion had
none of the qualities of R2P intervention. Supporters of R2P have been enthusiastic about its
potential to unify states in preventing civilian atrocities given that it was agreed to by the World
Summit in 2005 which meant world leaders agreed there was a recognition of the
internationalisation of responsibility while critics have said it has done little substantively to alter the
status quo, has not led to or called for UN reform, does not introduce an enforcement regime and
due to vague terminology allows political will to hold undue influence. 19

14
GA Res 2009 63/ 308 viewed online at http://globalr2p.org/media/pdf/UNResolutionA63L.80Rev.1.pdf on
Sunday 20th March 2011
15
Louise Arbour is former High Commissioner for Human Rights and former Chief Prosecutor of International
War Crimes Tribunals of the former Yugoslavia and Rwanda and current President and CEO of The
International Crisis Group “an independent, non-profit, non-governmental organisation committed to
preventing and resolving deadly conflict”, see www.crisisgroup.org for more information.
16
The programme is available to listen to at the BBC website, it took place at 10pm on 22 nd February 2011 on
Radio 4’s ‘The World Tonight’ hosted by Robin Lustig, see http://www.bbc.co.uk/programmes/b00yy8b7
17
Dr. Zuber of Global Action to Prevent War presentation slides ‘The Rationale for a UN Emergency Peace
Service (UNEPS)’, viewed at http://www.globalactionpw.org/index.php?s=peacekeeping-and-civilian-
protectionrev on Monday 4th April 2011
18
Response to a question about humanitarian intervention speaking event on March 16 th 2011 at the Haldane
Society Philippe Sands describes what has happened to the responsibility to protect
19
Hehir, Aidan, 2010, ‘The Responsibility to Protect: ‘Sound and Fury Signifying Nothing’?, International
Relations, 24, 218-239
Alexandra Lort Phillips W1320533 April 5 th 2011
LLM Dispute Resolution
International Human Rights Module 1LM 7B2

Humanitarian Intervention

Humanitarian intervention, contra-indicated by its name, is not the provision of aid in the form of
medicine, food or shelter, but instead refers to intervention by one or more states using “coercive –
and in particular military – action, against another state for the purpose of protecting people at risk
in that other state.”20 Falling within the ‘just cause’ reasoning for military intervention, an ancient
classification, the notion of humanitarian intervention has been developing since the 1945 UN
Charter spelled out articles for the maintenance of world peace and order and protection of
individual human rights, emerging further since the end of the Cold War. Justifications for going to
war referred to as jus ad bellum are centuries if not millennia established. 21 The term, as the 2001
ICISS consultation found, is very problematic for humanitarian agencies due to its association with
military action, so was redefined as “”intervention” or “military intervention” for human protection
purposes”22 in the report in line with the age old ideal of protecting others within the broader
discussion of R2P which includes protect, react and rebuild components as well as guidelines on
authority, thresholds and obligations. In recent years the ‘right authority’ and ‘right intent’ aspects
of intervention and its credibility in humanitarian terms have been undermined due to controversial
wars. Humanitarian intervention is tainted with the criticism that essentially it is a breach of
another state’s sovereignty undertaken by external states to satisfy their own foreign policy
endeavours under the guise of protecting rights. Intervention itself for such purposes now also
suffers association with pre-emptive wars and economic expansionism conducted illegally or
unilaterally without the ‘proper authority’ of UN agreement. For example, the invasion of Iraq in
2003 resulted in the documented deaths of many thousands of Iraqi civilians 23 yet humanitarian
intervention was used as one of its justifications. Human Rights Watch World Report 2004 explains
how this justification gained more prominence as weapons of mass destruction failed to appear but
that “the invasion of Iraq failed to meet the test for a humanitarian intervention”. 24 In March 2011
humanitarian intervention was referred to in an article about the possibility of intervention in Libya
20
International Commission on State Sovereignty and Intervention, ‘The Responsibility to Protect’ (Ottawa,
2001), p. VII
21
Atwood, Susan J., 2003, ‘From Just War to Just Intervention’, 19 New England Journal of Public Policy, pp.
55-75. A ‘just war’ is said to rely on the principles that war was waged for just reasons and in a just manner;
some origins of ‘just war theory’ are found in medieval Christian theology. Saint Augustine in around 400AD
suggested that the killing of human beings could sometimes be acceptable in line with the Christian ideals that
“man would do no harm, that man would prevent harm to others, that he would remove the source of harm,
and that he would do good to others.” In the thirteenth century Thomas Aquinas outlined three conditions of
“right authority, just cause and right intent” that together imply a just war.
22
See note 2 at p. 9
23
Hicks MH-R, Dardagan H, Guerrero Serdán G, Bagnall PM, Sloboda JA, et al. 2011 Violent Deaths of Iraqi
Civilians, 2003–2008: Analysis by Perpetrator, Weapon, Time, and Location. PLoS Med 8(2): e1000415.
doi:10.1371/journal.pmed.1000415 viewed at
http://www.plosmedicine.org/article/info:doi/10.1371/journal.pmed.1000415
Alexandra Lort Phillips W1320533 April 5 th 2011
LLM Dispute Resolution
International Human Rights Module 1LM 7B2

and was strongly criticised as “racist paternalism” 25; the image depicted with the article, also seen on
television news, is of a large professionally produced banner hanging from a building saying ‘No
foreign intervention Libyan people can manage it themselves’. As the days went by it became
apparent to observers that unarmed civilian Libyans perhaps could not manage it themselves and on
18th March the UN resolution to intervene was passed at the Security Council.

Issues

The use of new terminology been referred to as a “rhetorical trick” 26 and as “altering the rhetoric
employed”.27 This ‘rhetorical’ criticism is not referring to R2P as being the same as humanitarian
intervention but these writers believe that essentially there is little new about the understanding
that states should protect their own people, the human rights of individuals being protected since
the Universal Declaration of Human Rights by numerous human rights conventions such as the
ICCPR28 and the Genocide Convention. Critics argue that the introduction of a new term without
substantial binding, reform or enforcement aspects still leaves a system open to the selectivity and
inconsistency of the pre-existing one, subject to political will and hardly revolutionary. Adjustments
to the original ICISS document have led to accusations of watering down with decisions about
whom, how and when to intervene still subject to political will and no structural reform of the
processes of international decision-making about protection of civilians in other countries. Despite
the non-binding quality it has been seen, at least with the Security Council resolutions regarding
Libya in March 2011, that for the first time 15 members voted together for resolution 1970 and five
members abstained on resolution 1973 rather than veto suggesting that the idea of collective action
in relation to civilian protection might be emerging.

Conclusion

24
Human Rights Watch Report ‘Human Rights and Armed Conflict’ 2004, p. 33. In addition the Report outlines
some conditions for the test of ‘humanitarian intervention’ these being: ”First, military action must be the last
reasonable option to halt or prevent slaughter; military force should not be used for humanitarian purposes if
effective alternatives are available. Second, the intervention must be guided primarily by a humanitarian
purpose; we do not expect purity of motive, but humanitarianism should be the dominant reason for military
action. Third, every effort should be made to ensure that the means used to intervene themselves respect
international human rights and humanitarian law; we do not subscribe to the view that some abuses can be
countenanced in the name of stopping others. Fourth, it must be reasonably likely that military action will do
more good than harm; humanitarian intervention should not be tried if it seems likely to produce a wider
conflagration or significantly more suffering” p. 19
25
Seymour, Richard “Humanitarian Intervention” in Libya: The Revival of Imperialist Ideology published online
on 2nd March 2011 at http://www.globalresearch.ca/index.php?context=va&aid=23465
26
Stahn, Carsten 2007, ‘Responsibility to Protect: Political rhetoric or emerging legal norm?’, American Journal
of International Law, 101, p. 102
27
See note 18 at p. 232
28
International Convention on Civil and Political Rights
Alexandra Lort Phillips W1320533 April 5 th 2011
LLM Dispute Resolution
International Human Rights Module 1LM 7B2

Humanitarian intervention’s association with military action and in terms of the original question the
‘react’ strand of R2P could be equated to a certain degree. On the other hand a certain degree of
international support for R2P and the associated emergence of standards in peace-building
contribute to a change in perspective from state entity to individual rights and introduces a broad
range of longer term responses in principles of prevention and development as a foundation for
delivery of civilian protection under a different dynamic. Prevention initiatives are unlikely to
become news items because they are quietly undertaken. Progress to binding structural and legal
realisation in human rights is not something that tends to happen overnight and R2P is still
emerging. R2P has now been referred to by the Security Council in its press statement about and
resolution 197029 of 26th February 2011 in relation to Libya – the first Security Council resolution to
have been adopted unanimously - presented a range of measures including asset freeze, sanctions
and embargo, International Criminal Court referral is an example of R2P and in this case military
intervention to protect civilians was not included, this has come later in resolution 1973 30 of 18th
March 2011, thus differentiating the two doctrines under consideration. The question is now that
the term has been applied in the context of resolutions and action by the international community in
a relatively collective way whether or not it will be applied consistently to other scenarios. In
addition remains the question of whether the ‘rebuild’ pillar of R2P be implemented to adequately
to differentiate the action in Libya from humanitarian intervention.

29
UN SC Resolution 1970 (2011) ‘Peace and Security in Africa’, http://daccess-dds-
ny.un.org/doc/UNDOC/GEN/N11/245/58/PDF/N1124558.pdf?OpenElement
30
UN SC Resolution 1973 (2011) ‘The situation in Libya’, http://daccess-dds-
ny.un.org/doc/UNDOC/GEN/N11/268/39/PDF/N1126839.pdf?OpenElement
Alexandra Lort Phillips W1320533 April 5 th 2011
LLM Dispute Resolution
International Human Rights Module 1LM 7B2

Bibliography – books and articles

Atwood, Susan J., 2003, ‘From Just War to Just Intervention’, 19 New England Journal of Public
Policy, pp. 55-75.
Hehir, Aidan, 2010, ‘The Responsibility to Protect: ‘Sound and Fury Signifying Nothing’?,
International Relations, 24, 218-239
Hicks MH-R, Dardagan H, Guerrero Serdán G, Bagnall PM, Sloboda JA, et al. 2011 Violent Deaths of
Iraqi Civilians, 2003–2008: Analysis by Perpetrator, Weapon, Time, and Location. PLoS Med 8(2):
e1000415. doi:10.1371/journal.pmed.1000415 viewed on at:
http://www.plosmedicine.org/article/info:doi/10.1371/journal.pmed.1000415
International Commission on State Sovereignty and Intervention, ‘The Responsibility to Protect’
(Ottawa, 2001) viewed in March 2011 online at http://www.iciss.ca
Seymour, Richard “Humanitarian Intervention” in Libya: The Revival of Imperialist Ideology published
online on 2nd March 2011
Stahn, Carsten 2007, ‘Responsibility to Protect: Political rhetoric or emerging legal norm?’, American
Journal of International Law, 101
Wheeler, Nicholas J. (2000) ‘Saving Strangers: Humanitarian Intervention in International Society’,
Oxford University Press
Stanford Encyclopaedia of Philosophy viewed online in March 2011 at:
http://plato.stanford.edu/entries/sovereignty/#1
Websites

http://www.avaaz.org
http://www.bbc.co.uk
http://www.counterfire.org
http://www.crisisgroup.org
http://www.globalactionpw.org
http://www.globalr2p.org
http://www.globalresearch.ca
http://www.guardian.co.uk
http://www.hrw.org
http://www.iciss.ca
http://www.plosmedicine.org
http://www.un.org