Introduction: It was realized by the international community that as a result of its failure to protect the civilians in the 20th-century, they were disastrous consequences. As a result, international community decided that humans like the Holocaust or the Cambodian genocide (1970s) or the Rwandan genocide that took place in 1994, should not be allowed to be repeated. The result was that the doctrine of responsibility to protect emerged as a result of this background amid the efforts made by the United Nations and member states for improving their response to mass murders (Dahl, 1989).
The basic tenet behind the responsibility to protect depends on two notions, sovereignty as responsibility and human security. According to the idea of sovereignty as responsibility, it is provided that the state sovereignty also includes responsibilities for which the government can be held accountable for particularly this responsibility of the state to ensure the security of citizens. This means that the government has to ensure the basic human rights, dignity and worth for every individual (Curtin and Meijer, 2006).
In this regard, the responsibility to protect provides that a state has the main responsibility protect its own citizens from serious crimes. These are genocide, crimes against humanity, ethnic cleansing and war crimes. The three basic pillars of the responsibility to protect can be described as follows. First of all, the state has the main responsibility to protect its people from the food crimes that have been mentioned above (Dahl, 1994). Secondly, it is the responsibility of the international community to assist the states in fulfilling these responsibilities. Thirdly, when it becomes clear that a particular state has failed in protecting its people from the above mentioned crimes, the state has abrogated its sovereignty and it becomes the responsibility of the international community to take timely and determined action to appropriate humanitarian, the climatic and other means, that have been described in chapter VI and VIII, UN Charter , and also appealed to stronger measures provided by Chapter VII. These measures include the collective use of force that has been authorized by UN Security Council (Decker, 2002).
However, a major challenge in implementing the responsibility to protect lies in unresolved tensions that exist between the moral duty of the state and the legal obligations of the state when it has to deal with the responsibility to protect. Generally it is acknowledged by the states that there are moral imperatives behind the response to mass murders. However, the legal responsibility, which requires a response to widespread abuse of human rights that is taking place in other sovereign states is weak and almost does not exist under the present international law (Delanty, 2005).
The moral imperative that is present for the states for preventing the repeat of such terrible crimes is well-documented. Most of the states have signed and ratified treaties that have been formed with a view to protect the civilians in case of armed or non-armed conflicts. According to the international system after the Second World War, states have tried to avoid the reputation of the intensity, scale and the duration of the atrocities that have to be faced by the civilians in World War II.
Still, there have been several documents produced over the years, which reaffirmed that UN and its member States are committed to restricting the abuse inflicted on civilians. By passing the Universal Declaration of Human Rights and Convention on the Prevention and Punishment of Crime of Genocide, and also the effect of the creation of war crimes tribunal and prosecution reveals the trend that is in favor of strengthening international humanitarian and criminal law (Eriksen and Fossum, 2004). The widely ratified treaties also provide significant dividends that it has been realized by the states that it is their moral duty to prevent the innocent deaths. Moreover, the United States, that has been a leader in global humanitarian issues, continues with its commitment to prevent mass murders.
For example, Pres. Obama had reaffirmed the responsibility of the US in 2011 and the atrocities, and authorized the creation of interagency atrocities prevention board. It was mentioned in this regard that the prevention of genocide and atrocities is a major national security interests and also a moral responsibility of the US. However it needs to be noted that the President had not refer to the legal responsibility of preventing genocide and atrocities.
The responsibility to protect is based on the common understanding that it is the moral duty of the states to prevent unjustified abuse of human rights of the civilians. On the other hand, the legal basis for the states to respond to mass atrocities is significantly weak (Akhavan, 2009). The first document that introduces the concept of the responsibility to protect is the report of International Commission on Intervention and State Sovereignty, published in 2001. The second document had been produced in December 2004 in a debate related with UN reform and high-level panel on threats, challenges and change reinforced the concept in the report A more secure world: our shared responsibility. The next document is the UN Security Council report published in 2005. It was called Larger freedom: towards development, security and human rights for all. It has been mentioned in this report that security of the state’s as well as the humanity cannot be divided. Therefore, collective action is required for solving the threats that face humanity. It was also stressed upon the there is a need for embracing their responsibility to protect and act on it whenever required. The fourth document in this regard is the Outcome document. It was produced after a high-level meeting that took place in the UN Gen. Assembly in September 2005. It is recognized around his 138 and 139 of this document that it is the responsibility of each state to protect its citizens from crimes of genocide, ethnic cleansing, war crimes and crimes against humanity. It was also decided that a corresponding responsibilities also present on the international community (Ayoob, 2002).
Therefore, while the responsibility to protect and the above mentioned four documents appear to be reinforcing the idea that a responsibility is present on part of the international community to take action when a particular state had failed in protecting its citizens, the reality is that little evidence is present to suggest that states have any such legal duty to take action. In case the foreign states fail to fulfill their responsibility of protecting and taking collective action, there are no sanctions faced by these states (Bannon, 2006). This suggests that the responsibility to protect cannot be considered anywhere close to prime the norm under international law.
Under these circumstances, it becomes very difficult to establish that a positive duty is present on part of the states to take collective action. There are no particular consequences attached with the failure of the states to act in accordance with the ILC articles on State Responsibility. Moreover, the sanctions against it action by international organizations like the UN are nearly impossible to decide or even imagine under international law. At best, the third parties may consider protesting against the inaction. Therefore if the states were not fulfill their responsibility to protect, the present international law, cannot force the states to take collective action in this regard (Bellamy and Drummond, 2011).
Moreover, none of the documents mentioned above, on which the responsibility to protect is based on, can be considered as resulting in binding international law. In this regard, article 38(1), statute of the international Court of Justice, which defines traditional sources of international law, provides the only international conventions, international custom, general principles of law, scholarly writings and judicial decisions can result in creating binding international law (Bellamy, 2009). As none of the four documents mentioned above can be treated as a source of international law, they do not result in any legally binding obligations for the states. The meaning of this legal situation is that there is no international legal duty present on part of the states to take action against the state that fails to protect its citizens.
At the same time, the evidence which suggests that the states are required to take collective action against chapter VII of UN charter for enforcing the responsibility to protect is also very weak. The responsibility imposed on the states to protect their own citizens is clearly explicated in para 138, Outcome Document. Similarly, para 139, also clearly provides that foreign states are required to help the state in fulfilling its main responsibility to protect by measures that are short of use of force (Bellamy, 2009).
However, the statement related to the responsibility to take collective action is more reserved. It has been mentioned in para 139 that “we are ready to take collective action, in timely and decisive manner, through Security Council, according to the Charter, on a case-by-case basis“. Therefore, this text reveals that the foreign states are only reaffirmed that they are ready to take collective action. This suggests that the involvement of foreign states is both voluntary than being mandatory. Moreover, it has been mentioned that collective action is going to be taken on case to case basis. This undermines any notion regarding the systematic duty of the states to take collective action (Donnelly, 2007).
The only hope according to which responsibility to protect may be a part of international law is in case if the doctrine is accepted in the form of customary international law. Article 38(1), Statute of International Court of Justice defines customary international law as the evidence of general practice that has been accepted as law. There are two components on which international customs are evaluated. These are the objective measurement of state practice and the subjective measurement of opinio juris. In case of safe practice, the uniformity in duration for how long the custom has been applied by the states has to be seen. On the other hand, opinio juris measures if the state considers this legal custom as a law and considers the practice of the customers are part of legal obligations (Chesterman, 2001).
Still, the future of the responsibility to protect in the form of international custom is not very bright. Mainly the doctrine has suffered inconsistent state practice as well as an unclear definition regarding the legal obligations for the states, that result in a weak sense of opinio juris. There are nine different cases where the responsibility to protect has been invoked. However, there has been no consensus on what is a legitimate innovation of the responsibility to protect. An example in this regard can be given of the case where the responsibility to protect was invoked by Russia in 2008 for justifying the military action it had taken in Georgia. However, the claims made by ratio were widely rejected by the states. In the same way, France had also invoked the responsibility for protecting 2008 to rally action from international community for responding to cyclone related humanitarian disaster that took place in Myanmar. However, the conclusion of the debate was that the responsibility to protect cannot be applied in cases of natural disasters (Engle, 2007). Therefore, while the responsibility to protect was successfully invoked in case of the election violence that took place in Kenya in 2007, the appeals to the responsibility to protect remain inconsistent.
A view of the legal position of the responsibility to protect under the international law, the question that naturally arises in this regard is if the responsibility should be enshrined in international law. However, the question that needs to be asked in this regard is if we want to enshrine the responsibility in international law? In this regard, some experts claim that if the responsibility to protect is enshrined in international law. It may result in endangering the stability of international system. The legalization of responsibility to protect causes a significant challenge faced by the present norms of international relations. Mainly, it had to deal with the principle of state sovereignty, which is one of the most sacrosanct norms of international law (Evans, 2008).
There are two principles that act as the foundation of modern international system. The first is the notion of state sovereignty and the second one is the notion of territorial integrity, according to which the borders are secure between the states. These principles also found mentioned in the UN charter in Article 2(4). This provision provides that a threat or use of force should not be made against the political independence or territorial integrity of a particular state. However, it is a difficult task to maintain a balance between this idea and the notion of the responsibility to protect under which, foreign states are allowed to intervene when doing so is required to protect the civilians.
On the basis of their responsibility to protect, the sovereignty of the state cannot be described as an inherent right of statehood, but a positive right, that is provided to the responsible governments that provide protection to the people. In order to engage the application of the responsibility of protecting, the widespread norm of state sovereignty has to be revised and a new definition of state sovereignty may be required to be put in place. However, doing so is very difficult, keeping in view the long history of the present definition given to state sovereignty.
Conclusion: In the end, it needs to be mentioned that an attempt has been made through the responsibility to protect to make sure that the international community does not fail once more in preventing an atrocity as was the case, for example in Rwanda. The initial indications that are present in this regard appeared to be promising. The great potential of the right to protect can be seen in the rapid development of dissolution and also the support and influence of this notion. However, the potential of this doctrine is restricted by continuing debate as well as the concerns regarding the legal status of the doctrine. Moreover, the effect of the doctrine on international law concerning the use of force also restricts its potential. However, the concerns and debates going on regarding the right to protect are misguided. The right to protect is a form part of the present international legal order. As a result, it does not present any legal change. Similarly, it should not be modified in order to push for sightseeing in view of a potentially effective United Nations Security Council. The strength of the doctrine of the responsibility to protect can be found in its status as a political concept and not as a legal concept. Once, it is clearly accepted, the focus should be on the growth of the doctrine of responsibility to protect the increase its effectiveness and support by its political influence so as to generate a stronger compliance goal. This is particularly significant after the controversies regarding the role of responsibility to protect in the league intervention and also the lack of intervention in Syria. It is important that the doctrine of the responsibility to protect the acts and learns from the failures involved in such situations in order to make sure that the doctrine realizes its potential, not by stretching the provisions of international law for providing a chance to use force outside the purview of UN Security Council framework, but by including threshold criteria for the use of force that can help in guiding the decision-making of the UN Security Council
References
Akhavan, P., 2009, Are International Criminal Tribunals a Disincentive to Peace? Reconciling Judicial Romanticism with Political Realism, Human Rights Quarterly 31, 624-654
Ayoob, M., 2002, Humanitarian Intervention and state Sovereignty, The International Journal of Human Rights, 6:1, 81 – 102
Bannon, A., 2006, The Responsibility to Protect: The U.N World Summit and the Question of Unilateralism, Yale Law Journal 115, 1157 – 1165
Bellamy, A. J. and Drummond, C., 2011, The responsibility to protect in Southeast Asia: between non-interference and sovereignty as responsibility, The Pacific Review 24:2, 179 – 200
Bellamy, A. J., 2009, Realizing the Responsibility to Protect, International Studies Perspectives 10
Bellamy, A. J., 2009, Responsibility to Protect, Cambridge: Polity Press
Chesterman, S., 2001, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford: Oxford University Press
Curtin, D., and Meijer, A. J., 2006, Does Transparency Strengthen Legitimacy?. Information Polity. 11 (2). 109-122
Dahl, R. A., 1989, Democracy and its Critics. New Haven. Yale University Press
Dahl, R. A., 1994, A Democratic Dilemma: System Effectiveness Versus Citizen Participation. Political Science Quarterly. 109 (1) 23-34
Decker, F., 2002, Governance Beyond the Nation-State: Reflections on the Democratic Deficit of the European Union. Journal of European Public Policy, 9 (2) 256-272
Delanty, G., 2005, What does it mean to be a ‘European’?. Innovation: The European Journal of Social Science Research. 18 (1) 11-22
Donnelly, J., 2007, International Human Rights, Boulder: Westview Press
Engle, K., 2007, ‘Calling in the Troops’: The Uneasy Relationship Among Women’s Rights, Human Rights, and Humanitarian Intervention, 20 Harvard Human Rights Journal, 189 – 226
Eriksen, E. O., and Fossum, J. E., 2004, Europe in Search of Legitimacy: Strategies of Legitimation Assessed. International Political Science Review, 25 (4) 435-459
Evans, G., 2008, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All Washington D.C: Brookings Institution Press
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