The Responsibility to Protect and the use of force: Remaking the Procrustean bed?
| Author | Justin Morris |
| Published date | 01 June 2016 |
| Date | 01 June 2016 |
| DOI | http://doi.org/10.1177/0010836715612852 |
| Subject Matter | Articles |
612852CAC0010.1177/0010836715612852Cooperation and ConflictMorris
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Article
Cooperation and Conflict
2016, Vol. 51(2) 200 –215
The Responsibility to
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DOI: 10.1177/0010836715612852
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of force: Remaking the
Procrustean bed?
Justin Morris
Abstract
The emergence of the Responsibility to Protect (R2P) owed much to the need to enhance the
UN’s ability to act forcibly in the face of the most extreme cases of gross human suffering. Too
often in the past such responses were emasculated or thwarted by the necessity to successfully
navigate the UN Charter’s prescriptions over the use of force, by the unwillingness of member
states to provide military forces, or by a combination of the two. In accepting that certain types
of inhuman activity can lead to the legitimate use of force within the UN Charter framework, the
adoption of R2P appeared to resolve at least some of these problems, and as such it offered hope
to those wishing to see the UN adopt a more assertive response to the grossest of human rights
abuses. But, using stalemate over Syria as its backdrop, this article demonstrates the dubiousness
of the claim that such a normative development can ever trump the hard edged political and
strategic factors which determine when states will accept and/or participate in the use of force,
and it suggests a radical solution to the dangers inherent in R2P’s intimate association with
military intervention.
Keywords
Military intervention, norms, Responsibility to Protect, Security Council, Syria
Introduction
Amidst the burst of interventionary action which characterised the United Nations Security
Council’s (UNSC) activities in the 1990s, Adam Roberts observed the ‘pushing and shov-
ing’ which the Council had to undertake in order to ‘make the awkward facts of a crisis fit
the procrustean bed of the UN Charter’ (Roberts, 1993: 440) and the tension between state
sovereignty and human rights which the Charter embodies. On first acquaintance with the
Corresponding author:
Justin Morris, University of Hull, Cottingham Road, Hull HU6 7RX, UK.
Email: J.C.Morris@hull.ac.uk
Morris
201
now voluminous body of literature on the Responsibility to Protect (R2P), one could eas-
ily be drawn to the conclusion that, in its formulation and subsequent adoption, the con-
cept marked a damascene moment for international society which enabled it to escape this
normative straightjacket. Further examination, however, demands greater circumspec-
tion; in the context of the long and often inglorious history of the UN’s attempts to satis-
factorily marry its obligations to state sovereignty and human rights, what impact has the
adoption of R2P really had in terms of the UN’s use of force?
This article seeks to contribute to the debate over the significance of R2P. It will show
that, whilst R2P constitutes an important move in international society’s attempt to deter-
mine how best to address gross human suffering in a world of sovereign states, it is
ultimately on this broader objective, rather than on R2P itself, that we should focus our
analysis. R2P provides us with an understanding of sovereignty and from this it presents
a set of broad-based policy options which enable us better to pursue the greater goal. But
it is transmutable, at least with regard to the policy options to which it gives rise, as the
stark differences between its 2001 and 2005 incarnations clearly demonstrate.
In this vein this article advocates and explores the possible implications of a specific
change to the R2P as currently conceived, namely the excision of its non-consensual,
coercive military aspects. It argues that three benefits would follow from this. Firstly,
whilst such a move would not deprive the UNSC of the opportunity to resort to force
outside the R2P mechanism – since the Council has such power by virtue of the UN
Charter, not R2P – it would remove any notion of automaticity, and significantly reduce
ambiguity regarding the initiation of R2P-justified moves leading eventually to coercive
military action. As such, the proposed amendment would reassure those states which
harbour genuine concerns over the association of R2P with forcible intervention.
Secondly, it will deprive those who cite such fears as a cloak for ulterior reasons for
wanting to prevent intervention of a means of rationalising and justifying their stance.
Finally, at a time when power is shifting in favour of those who have traditionally been
most protective of sovereign prerogatives and most doubtful about recourse to force,
there is much to be said for acting to preserve and cement those aspects of the R2P which
enjoy more widespread support, and to avoid cross-contamination through arguments
over force and regime change.
The article proceeds in three parts. The first sets R2P in historical context by examin-
ing post-1945 state practice, showing how, through an often slow and inconsistent pro-
cess characterised as much by cajoling and acquiescence as by enthusiasm, the UN
membership has come to adopt a more expansive, human-focused view of state sover-
eignty, culminating in acceptance of the R2P. Part two examines the concept’s often
uncomfortable relationship with the use of force, before part three sets out the case for
extracting the non-consensual, coercive use of force from the R2P remit and examines
the implications of doing so.
From non-intervention to the ‘Responsibility to Protect’
In his 2011 report on R2P, the UN Secretary General (UNSG) Ban Ki-moon argued that
the notion that ‘[s]overeignty endows the State with international and domestic responsi-
bilities, including for the protection of populations on its territory … is not a new or radi-
cal idea.’ He continued:
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Cooperation and Conflict 51(2)
In 1945, the drafting committee in San Francisco, referring to the domestic jurisdiction clause
of Article 2(7), declared that if fundamental freedoms and rights are ‘grievously outraged so as
to create conditions which threaten peace or to obstruct the application of the provisions of the
Charter, then they cease to be the sole concern of each State.’ (Ki-Moon, 2011)
This quote is often cited (Sills, 2004: 62; Strombeth et al., 2006: 24) to support the
point which the UNSG seeks to make here, and it is correct that at the San Francisco
Conference where the Charter was drawn up the assembled states displayed a degree of
sensitivity to the notion that states must respect the human rights of their citizens. In the
immediate aftermath of the atrocities of the Second World War it would have been
remarkable had it been otherwise. But closer examination of the historical record shows
that such concern was closely circumscribed. When the committee to which the drafting
committee reported came to consider the above quoted observation (which in fact related
to Article 1(3), not Article 2(7) as the Secretary General suggested) it was the need to
guard against the impression that ‘the Organization should actively impose human rights
and freedoms within individual countries’ that won the committee’s strongest endorse-
ment (UNCIO, 1945). The balance between state and individual rights agreed at San
Francisco was struck firmly in favour of the sovereignty of the former (Morris and
Wheeler, 2012).
This desire to avoid the establishment of an overly interventionary organisation is
most clearly evidenced by the manner in which the Conference dealt with the Charter’s
non-intervention principle, found in Article 2(7), which disbars UN intervention ‘in mat-
ters which are essentially within the domestic jurisdiction of any state’. Initially intended
to apply only to the UNSC pursuant to its powers regarding pacific settlement of dis-
putes, this principle’s scope was dramatically widened by a proposal from the Four
Sponsoring Governments (i.e. the USA, USSR, UK and China) that it encompass all
aspects of UN activity, though with the explicit and crucial exception that the principle
would not apply to UNSC enforcement action under Chapter VII of the Charter. Such an
amendment was necessitated, it was explained by the US delegate, by the ‘broadening of
the scope of the Organization’ to include social, economic and humanitarian issues. This
expansion, he proclaimed, constituted ‘a great advance’, but it had nevertheless to be
made clear that ‘the Organization would deal with the governments of member states
[and would neither] penetrate directly into the[ir] domestic life … [nor] go behind the[m]
… in order to impose its desires’ (UNCIO, 1945). On the basis of this rationale the
change was overwhelmingly approved. It was this same line of reasoning which led to
the Charter prohibiting states from using force in their international relations while leav-
ing open to them the option of ‘using force within … metropolitan area[s] to put down a
revolution or other disturbance’ (Goodrich and Hambro, 1949: 103), and to the Council
being granted authority to act in order ‘to maintain or restore international peace and
security’ (Art 39) once it had determined that peace was in jeopardy.
Reflecting on these aspects of the Charter, Ian Hurd has recently mused over the fact
that ‘there is no international legal category of a “threat to domestic peace and security”
which might serve as the counterpart to the idea of a “threat to international peace and
security”’ and to consider...
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