Other proposals to end war as a structural, institutionalized necessity to maintain international order, can be grouped in three general categories: those that depend merely on the goodwill and free choice of all nations; those that require peace to be imposed forcibly by a world dictator; and those by which each state agrees to protect all other states against any aggressor who would violate their rights under international law. The first two extremes have been tried and shown deficient, but the third alternative – termed ‘collective security’ – has not yet been fully applied on a global scale, despite the fact that it appears relatively simple and highly effective. Why is this?
The earliest known modern scheme in this regard was set forth by the French clergyman, noble and statesman Cardinal Richelieu in 1629, some of whose ideas were included in the Peace of Westphalia in 1648. Several other approaches to the topic were made during the 18th Century, particularly in Europe, but were never carried out. During the second half of the 19th century, a nobleman known as Bahá’u’lláh [1817-1892], then a prisoner of conscience of the Ottoman Empire living under house arrest, first in Constantinople (now Istanbul) and then in Adrianople (now Edirne), wrote a series of letters to the main world leaders of the time.[1] Among other matters, he called upon them in the following words:
The time must come when the imperative necessity for the holding of a vast, an all-embracing assemblage of men will be universally realized. The rulers and kings of the earth must needs attend it, and, participating in its deliberations, must consider such ways and means as will lay the foundations of the world's Great Peace amongst men.[2]
His son 'Abdu'l-Bahá explained the importance of this all-embracing assemblage, as follows:[3]
They must make the Cause of Peace the object of general consultation, and seek by every means in their power to establish a Union of the nations of the world. They must conclude a binding treaty and establish a covenant, the provisions of which shall be sound, inviolable and definite. They must proclaim it to all the world and obtain for it the sanction of all the human race. This supreme and noble undertaking—the real source of the peace and well-being of all the world—should be regarded as sacred by all that dwell on earth. All the forces of humanity must be mobilized to ensure the stability and permanence of this Most Great Covenant.
The powers and duties of this proposed universal union were laid out in the following terms:
In this all-embracing Pact the limits and frontiers of each and every nation should be clearly fixed, the principles underlying the relations of governments towards one another definitely laid down, and all international agreements and obligations ascertained. In like manner, the size of the armaments of every government should be strictly limited, for if the preparations for war and the military forces of any nation should be allowed to increase, they will arouse the suspicion of others.
These agreements and obligations were to be enforced by the concerted action of all states, indeed of all of the citizens of those states:
The fundamental principle underlying this solemn Pact should be so fixed that if any government later violates any one of its provisions, all the governments on earth should arise to reduce it to utter submission, nay the human race as a whole should resolve, with every power at its disposal, to destroy that government. Should this greatest of all remedies be applied to the sick body of the world, it will assuredly recover from its ills and will remain eternally safe and secure.
This principle is called ‘collective security’, because if any state were to violate the provisions of international legislation, all other states should arise to stop it. Several objections had been –and continue to be– raised against this principle by pacifists who reject the use of force under any pretext, by political realists who doubt that the states of the world are capable of working together to such an extent, and by patriots those who would defend unlimited national sovereignty at all costs. In response to these objections, and in the hopes of laying them to rest, let us review below some recent geopolitical developments towards the achievement of collective security through shared sovereignty.[4]
There is a general principle in International Humanitarian Law called the “Responsibility to Protect” (R2P), which is actually a norm, not a law. This refers to the people’s right to receive humanitarian intervention, particularly military intervention. This issue has been illustrated by recent cases of genocide, war crimes, ethnic cleansing and crimes against humanity such as Somalia in 1992, Bosnia in 1992-95, Kosovo in 1999, Rwanda in 1994, Libya in 2011, and Syria in 2011, and their respective interventions or failures to intervene. We will not take the time here to review each of these cases in particular, but readers who might not be aware of these cases are encouraged to research them separately.
Through these cases a conundrum arose. On the one hand, there was an internationalization of human conscience in demanding the intervention of the international community. On the other hand, there was fear that intervention might constitute a breach of international state order, a violation of state sovereignty. The latter argument was based on UN Charter Art. 2.4, on no threat or use of force against any state by any state, and Art. 2.7 on non-intervention by the UN. Therefore, the question was posed whether the principle of non-intervention enshrined in the charter of the United Nations should or should not yield to the international “Responsibility to Protect” (R2P).
In his 2000 Millennium Report to General Assembly, Kofi Annan, then UN Secretary General, worded this question in the following words: “If humanitarian intervention is… an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that affect every precept of our common humanity?” In order to seek an acceptable answer this important question, the Government of Canada created the International Commission on Intervention and State Sovereignty (ICISS) in September 2000. Its initial report emphasized three basic points: (1) the primary responsibility to protect (R2P) lies with the state concerned; (2) only when a state fails to act does the international community’s R2P arise; and (3) this responsibility includes the responsibility to prevent, the responsibility to react and the responsibility to rebuild.[5]
The 2005 World Summit reaffirmed these points, and in April 2006 the Security Council also endorsed them. In January 2009, Secretary General Ban Ki Moon issued a report on implementing the responsibility to protect. Paragraph 138 of the World Summit Report highlights that R2P devolves primarily on the peoples home States, saying that “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.”
Accordingly, in 2011, Security Council resolution 1973 on Libya recognized the responsibility of the state of Libya to protect its own civilians, and that the first responsibility lay with that state. However, paragraph 139 of the 2005 World Summit Report also states:
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 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 manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.
This principle does not refer to common, everyday crimes, but mass atrocity crimes such as genocide, war crimes, crimes against humanity, and ethnic cleansing. The report also conditions international intervention on a state’s inability or unwillingness to protect its own population from these crimes, or on the state itself being their perpetrator. Therefore, the Secretary General’s report refers to three principles:
1. Each state has the primary responsibility to protect its population from mass atrocity crimes such as genocide, war crimes, crimes against humanity and ethnic cleansing.
2. Only if a State is unable to protect its population from mass atrocity crimes on its own, the international community has a responsibility and commitment to assist the state by building its capacity. This can mean building early-warning capabilities, mediating conflicts between political parties, strengthening the security sector, mobilizing standby forces, and many other actions.
3. If a State is manifestly failing to protect its citizens from mass atrocities and peaceful measures are not working, the international community has the responsibility to intervene, at first diplomatically, then more coercively, and as a last resort, with military force.
There remain certain problem areas to be resolved. What are the relationships and borders between R2P and State sovereignty? To what extent may action be taken without the consent of the state in question? How to deal with cases in which R2P is used by world powers as a justification to violate another state’s sovereignty, like the USA did in Central America and the Caribbean, or the ex-USSR did with regard to the satellite states of Eastern Europe? It is hoped that modern evolutions will help to solve these issues, such as developments in human rights, the trend away from over-emphasizing the sanctity of state sovereignty, and the growing awareness that international respect for state sovereignty should be conditional on the responsibility of states to protect their citizens.
What types of interventions can the international community carry out? They do not necessarily –or even primarily– have to be military in nature. In fact, they actually can and should initially be non-military, such as diplomatic engagement, political and social pressures, economic sanctions, and other coercive actions, which already existed prior to the R2P norm. Their purpose is to protect ordinary people in cases where a State is unable or unwilling to do so. Nevertheless, there remains a debate as to whether: is there a ‘right’ to intervene without the consent of the State. At the least, standards are required to prevent abuse.
In cases where military interventions are required, the responsibility to protect (R2P) must fulfill six criteria in order to be justified: (1) just cause threshold; (2) right intention; (3) last resort; (4) legitimate authority; (5) proportional means; and (6) reasonable prospect of success. We will look at each of these in greater detail below:
1. Just Cause Threshold: The situation must have crossed a certain threshold after which a military intervention is deemed to have just cause. There must be serious and irreparable harm, which is either presently occurring or imminently likely, and which includes either (a) a large-scale loss of life, whether actual or apprehended, as the product of deliberate state action or inability to act; or (b) large scale ethnic cleansing, whether actual or apprehended, carried out by means of killing, forced expulsion, acts of terror, or rape.
2. Right Intention: The primary purpose must be to halt or avert human suffering. This is best assured through multilateral operations, e.g., those carried out through regional organizations such as the OAS.
3. Last Resort: Military interventions are justified only when every non-military option has been exhausted, including diplomatic engagement, political and social pressures, economic sanctions, and other coercive actions.
4. Legitimate Authority: The best authority in these cases is the United Nations Security Council, which must be sought first. However, if the United Nations Security Council rejects or evades action, then consideration by the General Assembly should be sought (through the ‘Uniting for Peace’ procedure). Approval by a large majority provides a high degree of legitimacy for an intervention, which requires a 2/3 majority.
Action may also be taken by a regional organization under Chapter VIII of UN Charter, which still requires subsequent authorization by the Security Council. Examples are the ex-post facto approval of intervention by ECOWAS, led by Nigeria, in Liberia in 1992 and in Sierra Leone 1997. However, there has been extreme reluctance by these organizations for fear of ‘turn around’, i.e., that intervened member states will seek to take reprisals on other member states. One problematic aspect of this criterion is when action is taken by a regional organization outside of its membership, such as the NATO intervention in Kosovo, or outside of its region, such as the NATO intervention in Libya.
5. Proportional Means: The scale, duration and intensity of the military intervention should be the minimum necessary to secure the defined human protection objective, and no greater.
6. Reasonable Prospect of Success: There should be a realistic probability of achieving the purpose, which is to halt or avert the atrocities that triggered the intervention. In addition, the consequences of action should not be likely to be worse than the consequences of inaction.
What are the legal bases for the international community to intervene in member states under the principle of the responsibility to protect? There are myriad legal foundations, including human rights treaties, the genocide convention, the Geneva Conventions, the statutes of the International Criminal Court, and the growing State practice. Its origins are found in International Humanitarian Law, particularly the Geneva Conventions, which provide the obligation to distinguish and protect civilians in armed conflict, and the obligation of states to disseminate or make these obligations known to members of its armed forces and its civilian population.
Protection is extended to the non-combatant civilian population in general, especially women and children, in addition to the sick, wounded and shipwrecked, detained persons or prisoners of war, and persons who have laid down their arms and are no longer taking parts in hostilities. It provides for respect and protection in all circumstances, including humane treatment and medical care, and prohibition of direct attacks, discrimination, torture, biological experiments, and reprisals against protected persons, etc.
* * * * *
In summary, we have seen that the principle of collective security through shared sovereignty, originally proposed by Bahá’u’lláh during the second half of the 19th century, has been gradually evolving over the century and a half since then, driven by several cases of mass atrocity crimes, on the one hand, and a series of developments in International Humanitarian Law (IHL), on the other.
We have also seen that the main hurdles to be overcome for further progress of this principle towards its full implementation include our continued love affair with the concept of unlimited national sovereignty, and the lack of effective legislative, executive and judicial powers within global governance organizations such as the United Nations.
Only when these hurdles are overcome will the international community be able to effectively curtail the use of the national sovereignty argument to justify and shelter acts of war outwardly against other states and inwardly against domestic populations.
Notes:
[1] Compiled as “The Summons of the Lord of Hosts–Tablets of Bahá’u’lláh” by the Bahá'í World Center and published by Bahá'í Publications of Australia in 2002.
[2] “Gleanings from the Writings of Bahá’u’lláh”. Wilmette: Bahá'í Publishing Trust, 1990 pocket edition, p. 249.
[3] The three quotes that follow are from 'Abdu'l-Bahá, “The Secret of Divine Civilization”. Wilmette: Bahá’í Publishing Trust, 2nd ed., 1983, pp. 64-65.
[4] The following data was provided largely at a course given in Quito by Bernard J. Dougherty, J.D., LL.M., a lecturer and advisor on International Humanitarian Law.
[5] “The Responsibility to Protect”, Report of the International Commission on Intervention and State Sovereignty (ICISS). Ottawa: International Development Research Centre, December 2001.
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