Shift away from sovereignty as control: States’ R2P

The ICISS Report provides that state sovereignty implies twofold responsibility: first, a state is internally responsible to protect its citizen; second, is externally responsible to the international community through the United Nations.246 _{The report further}

243 Ibid. p.126.

244 ICISS, the Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, December 2001, available at http://www.iciss.ca/pdf/commission-Report.pdf.

245 This issue has been confirmed by the UN officials during interview with this author. 246 Ibid.

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maintains that state sovereignty implies the obligation to guarantee the equal protection of the civilian population from harm, emphasizing that the power of the state must yield to a principle of extreme urgency, the need for a minimum protection of human rights. Thus, the report had put an emphasis on the re-characterization of state sovereignty, and it is now commonly accepted that sovereignty implies the duty to respect the dignity and rights of all the people within a state.247 _{However, it is important}

to note that the notion of sovereignty as responsibility did not arise in the ICISS Report. The concept was first developed by Francis Deng, the former UN’s Special Representative on Internally Displaced Persons (IDPs), and Roberta Cohen in the context of internally displaced people.248 _{The idea was also invoked by the then UN}

Secretary-General Boutros Boutros-Ghali in the Agenda for Peace,249 _{and later by Kofi}

Annan. His principal challenge was how to persuade governments to improve protection for IDPs. From there, the idea of sovereignty as responsibility was taken into account by the international community to fit this purpose.250 _{The starting point}

was the recognition that the primary responsibility for protecting and assisting IDPs lay with the host government and when a state is unable to fulfil its responsibilities, it should invite and welcome international assistance.251 _{Such assistance helped the}

state by enabling it to discharge its sovereign responsibilities and take its place as a

247 See Gareth Evans and Mohamed Sahnoun, ‘The Responsibility to Protect’, Foreign Affairs, Vol. 81, No. 6, Nov.–Dec. 2002, pp. 99-110.

248 See Francis Deng, Protecting the Dispossessed: A Challenge for the International Community, Washington: Brookings Institution, 1993; Francis Deng, Donald Rothchild and William Zartmann, ‘Sovereignty as

Responsibility’, Thomas.G. Weiss, Humanitarian Intervention: Ideas in Action, Cambridge and Maiden, Polity Press, 2007, 89-98; Francis Deng et al, Sovereignty as Responsibility: Conflict Management in Africa,

Washington DC, Brookings Institution, 1996.

249 Boutros Boutros –Ghali, An Agenda for Peace, A/47/277 –S/2411, June 17, 1992. See Also Alex Bellamy, ‘The responsibility to Protect and the Problem of Military Intervention’, International Affairs, vol. 84, no. 4, 2008, pp. 615-39.

250 See Francis Deng, ‘Frontiers of sovereignty’, Leiden Journal of International Law, vol. 8, no. 2, 1995, p. 249.

251 Roberta Cohen and Francis M. Deng, Masses in Flight: The Global Crisis of Internal Displacement, Washington DC: The Brooking Institution, 1998, p. 275.

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legitimate member of international society.252 _{The debate raised the issue of what}

should be the international community response when a state refused to request assistance or itself committed genocide and mass atrocities, claiming a sovereign right to non-interference enshrined in Articles 2 (4) and 2 (7) of the United Nations Charter. As mentioned above, Kofi Annan’s challenge to international society to develop a way of reconciling the principle of sovereignty and fundamental human rights aimed to answer this problem. Referencing sovereignty as responsibility, Kofi Annan emphasized that sovereignty includes the obligation of all governments to protect their citizens, and that the goal of international action should be the protection of civilians from gross and systematic abuse when a state is unable or unwilling to end harm or is itself the perpetrator.253 _{In this regard, he completely adheres to the idea that in the}

case of mass atrocities against the civilian population, the international community has the right to intervene in internal matters of a sovereign state if necessary, and militarily if absolutely necessary, as is illustrated in this statement:

If states bent on criminal behavior know that frontiers are not the absolute defense, if they know that the Security Council will take action to halt crimes against humanity, and then they will not embark on such a course of action in expectation of sovereign impunity.254

Explaining that humanitarian intervention constitutes a principle challenge to the Security Council and the United Nations as a whole in the next century, the Secretary- General underlined that in the context of Rwanda and Kosovo, ‘the Member States of the United Nations should have been able to find common ground in upholding the

252 Francis M. Deng, Sadikiel Kimaro, Terrence Lyons, Donald Rothchild and I. William Zartman, Sovereignty as Responsibility: onflict Management in Africa, Washington DC: The Brookings Institution, 1996, p.1.

253 December 2001, available at http:www.iciss.ca/pdf/commission-Report.pdf. 254 See UN Press Release S/G/SM/7136, Sept. 20, 1999.

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principles of the Charter’.255 _{He further emphasizes that ‘The Charter is a living}

document whose high principles still define the aspirations of peoples everywhere for lives of peace, dignity and development’ and that ‘nothing in the Charter precludes a recognition that there are rights beyond borders’.256

Similarly, in the OAU summit in 1998, President Nelson Mandela of South Africa embraced this view maintaining that: ‘Africa has a right and a duty to intervene to root out tyranny…we must all accept that we cannot abuse the concept of national sovereignty to deny the rest of the continent the right and duty to intervene when behind those sovereign boundaries, people are being slaughtered to protect tyranny’.257

There is no doubt that in re-characterizing sovereignty, the R2P framework has challenged the traditional international relations structures. As Evans and Sahnoun observe, ‘the protection of civilians against atrocity crimes has become a priority for international engagement arguing that ‘even the strongest supporters of state sovereignty will admit today that no state holds unlimited power to do what it wants to its own peoples’258_.

Can this be considered as the end of the Westphalia concept of sovereignty? Are states really ready to move towards sovereignty as accountable responsibility? Only time will tell. No matter how long it takes, the most important point is that from now on the principle of sovereignty cannot be used as a shield behind which abuse could be

255 Ibid. 256 Ibid.

257 Africa’s Responsibility to Protect, 2007, Cape Town Centre for Conflict Resolution at 15. 258 Ibid.

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inflicted on populations with impunity.259_{As Kofi Annan comments: ‘it cannot be right,}

when the international community is faced with genocide or massive human rights abuses, for the United Nations to stand by and let them unfold to the end, with disastrous consequences for many thousands of innocent people.’260

It is obvious that the painful historical lessons learnt from the genocide in Rwanda, the mass killing in Srebrenica and other failure of the UN have moved the international community towards the evolution of protection of both legal standards and political imperatives. It is therefore clear that in suggesting that sovereignty as control must give way to sovereignty as responsibility in order to ensure respect for human rights, the central idea of the ICISS was that sovereignty includes the obligation of all governments to protect their citizens, and that the goal of international action should be the protection of civilians from gross and systematic abuse when the state is unable or unwilling to end harm or is itself the perpetrator. However, despite that, the issue of the use of force for human protection purposes did not cease to be controversial in both political and academic debate. In relation to this, Evans and Sahnoun note that ‘the debate about intervention for human protection purposes has not gone away. And it will not go away so long as human nature remains as fallible as it is and internal conflict and states failures stay as prevalent as they are’.261