The responsibility to protect

It is possible to think of the sovereignty of the State in new terms

In the contemporary international order, the principle of sovereignty still plays an essential role in relations between states. Within the framework of the UN, the principle by virtue of which human rights are the subject of precise obligations of respect on the part of the States has gradually affirmed itself, to the point that their serious violations cannot be considered as a matter belonging to the sphere of reserved for the states. Therefore, a State cannot claim the defense of the prerogatives of its sphere of sovereignty to cover extensive violations of the fundamental rights of the person. This principle is inevitably on a collision course with that of sovereignty. In the international community of our day, sensitivity to the problems of the effective and, above all, effective protection of the fundamental rights of the human person as such has grown and, consequently, there is a need to question the dogma of sovereignty, at least in its most absolute interpretation.

Since the end of the 1900s, a doctrine and a practice, albeit limited, have developed aimed at promoting the affirmation of forms of "humanitarian intervention" in the face of human rights violations perpetrated within States. Two great tragedies of the 1990s had revived the question in brutal terms. As UN Secretary-General Kofi Annan has stated: “If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, a Srebrenica, massive and systematic human rights violations plaguing every corner of our common humanity? In response to this challenge, an International Commission on Intervention and State Sovereignty (ICISS) group of independent experts produced, in December 2001, an extensive report entitled The Responsibility to Protect* which addresses the crucial point: « The question of when, if at all, is it appropriate for states to take coercive – and particularly military – action against another state in order to protect the population at risk in that other state».

The central idea is that states have a duty to protect their populations from avoidable catastrophes such as mass killings and rapes and mass murders produced by hunger. When a State is unable or unwilling to fulfill this duty, the "responsibility to protect" must be assumed by the international community.

The novelty lies in the very conception of sovereignty, which - according to the Commission - should no longer be understood as "control" of the territory and the population, but essentially as responsibility. The doctrine was described as an "emerging norm", legitimizing coercive actions under the United Nations Charter, up to and including military intervention as a last resort. The doctrine of the responsibility to protect found consecration in the final document of the summit of heads of state or government in 2005. On that occasion, the UN General Assembly, meeting at the highest level, recognized that «each state individually has the responsibility to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity", and that the international community should first and foremost "encourage and assist states to exercise this responsibility and support nations". . Where peaceful means are inadequate, the international community should be ready for collective action in a timely and decisive manner, through decision-making mechanisms centered on the Security Council.

The new doctrine was lukewarmly received by the Security Council, the body called to adopt "actions" in the face of situations that represent a threat to peace, a violation of the peace or an act of aggression. In 2006, with resolution 1674, the Council «reaffirms the provisions (…) of the 2005 Document on the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity». Pope Benedict XVI, in his speech to the UN General Assembly in 2008, forcefully recalled the doctrine of the responsibility to protect, inviting States not to consider it as an unacceptable imposition or limitation of sovereignty. In practice, the Security Council and other bodies (such as the International Criminal Court) have invoked the responsibility to protect in a few cases. In our day, the report on the Responsibility to Protect should return to the attention of the international community. Governments (including top officials, up to the head of state) are to be held accountable for their actions. Killings of civilians, indiscriminate attacks on population centers with disproportionate use of force are war crimes. Large-scale or systematic attacks against the civilian population are crimes against humanity.

All that remains is to hope that the practice consolidates the responsibility to protect as an essential feature of sovereignty and as the foundation of a precise duty of the international community to intervene in cases of the most serious violations of human rights, so that what has been defined as a "norm emerging” can soon be qualified as “emerged” to all intents and purposes.

The central idea is that states have a duty to protect their populations from avoidable catastrophes such as mass killings and rapes and mass murders produced by hunger.

Edoardo Greppi

NP Dicembre 2022

* To read the full report The Responsibility to Protect