Wednesday 06 Oct 2021 | 15:19 | SYDNEY
Wednesday 06 Oct 2021 | 15:19 | SYDNEY

Where to for R2P?

29 April 2011 10:38

Andrew Farran is formerly of the Departments of External Affairs and Defence; Law Faculty, Monash University; International Trade adviser; and a former Vice-President of AIIA.

Having submitted two guest blogs on the R2P concept, the first of which foreshadowed a probable stalemate in Libya, the question arises: where to with R2P now?

Two observations have struck me with some force recently. The first by guest blogger Sam Fairall-Lee: 'As R2P attempts to make sovereignty conditional on state behaviour, as well as attempting to codify the criteria for military intervention, states are naturally resistant'.

The second by a friend well versed in civil/military matters was on the lines of whether in the Libyan situation, NATO lacks either the will or the capacity to protect the citizens of Misurata.

If NATO lacks the will, then what is it doing there; if it lacks the capability, what could it do actually?

R2P, as with any international enforcement action, is supposedly to be undertaken in accordance with the UN Charter, in keeping with its purposes, ie. to maintain or restore international peace. However its other purposes, as reflected in Chapter IX of the Charter and the Universal Declaration of Human Rights, has a humanitarian basis.

This latter aspect is gaining momentum in the new era of civil society, in relation to which the Charter, in its strictest sense, is seen by some as a dated document. 

Thus tension remains, most strongly between those states for which sovereignty remains paramount (respecting Article 2 (4) preserving the exclusive domestic jurisdiction of member states) and those which choose to exercise their sovereignty in a manner more conducive to the values of civil society.

The R2P concept or doctrine is an expression of this, but one whose time may not as yet have fully come — even allowing for the tentative steps now underway.

Short of substantive changes to the UN Charter, it is hard to see how its time will come. Effective enforcement action of this kind, apart from being pursuant to the inherent right of self-defence, is contingent on meeting the requirements of Chapters 6 and 7 of the Charter.

The Libyan situation does not involve a threat to or breach of the peace, or an act of aggression, as between states though it can be said that it is one that seriously destabilises the peace of that region.

Chapter 8 admits of a variety of non-enforcement measures by regional organisations, such as the African Union, the Arab League, and the Organisation of the Islamic Conference.

But to all intents and purposes in the Libyan case (and elsewhere) these organizations and their member states for the most part have just fallen away when it comes to action. But does NATO itself fit in here, given that the EU, with its revamped Common Security and Defence Policy structure (CSDP), has failed also to front up in this instance?

Nonetheless, when we see egregious rulers such as exists in parts of Africa and the Middle East and elsewhere, perpetrating appalling acts on submissive populations (war crimes by any other name), the natural instinct is to think that something should, indeed must, be done to stop it and protect their afflicted citizens.

But that raises the point noted above about sovereignty being conditional on state behaviour, a nice concept if this can be independently verified and arbitrated. But the only relevant international arbiter in this respect is the UN and/or its judicial organs.

Here again we run up against 'sovereignty' (and Article 2 (4) of the Charter), which can stop or handicap any such action in its tracks unless grounds based on war crimes might justify the necessary action.

This is different to where a state might invite in another to fend itself from external attack or from a foreign inspired insurrection; but if the intervention is being done against its will and there are opposing forces involved, this may amount to taking sides in a civil war about which the international community may have varying opinions. 

So we come to the second observation above about NATO. After all this time and experience in such matters, it should have been realised that intervention without a clear objective and the effective means of achieving it is nothing less than foolhardy. Awful though Qadhafi and his regime might be. This might be termed a 'fig leaf' intervention (R2P being the fig leaf) assuming Britain, France and the US — the lead actors — were genuine in their reasons for intervening.

Well they might have been, having substantial numbers of constituents with strong views that 'something must be done'. The R2P doctrine seemed ripe for that, given earlier but regretted failures in Rwanda, Dhofar and Bosnia, to name a few. Indeed many lives have been saved in Libya; yet many lives have also been lost.

Bombing from 10,000 feet is not surgical (even with the deployment of smart weapons) and can be countered by placing the very people meant to be protected in the line of fire as Qadhafi has done.

If denial of airspace per-se will not work and this must have been realised at the outset, what then is their back up or Plan B given that the UNSC resolution 1973 speaks of 'all necessary measures' while barring those that might allow for a successful outcome (ie. foreign ground forces, occupation, etc)?

It is difficult to see how available tactics (notwithstanding the deployment of military advisers and additional sophisticated surveillance measures) can be aligned to a viable long-term strategy sufficient to bring about that outcome. However it is looking more and more that the US/NATO objective is regime change, an objective that would alarm a number of dictators in Africa and elsewhere.
Given the UN Charter's constraints and given too the state of public opinion, there would seem to be a need for a doctrine that can pick its way through these dilemmas.

What we are looking for is a tipping point of public opinion that is so appalled at what may be happening in a state where the civilian population is in grave peril from their rulers, that both the formulation of effective strategies and commensurate tactics is feasible and overwhelmingly acceptable to most of the international community.

But even given this, there will be states which other things being considered (eg. national interest) will be politically reluctant or otherwise unable to contribute to or support the cause. Whether one might see Germany in this category over Libya is interesting for what its position may mean, both for the future of Europe and the future of NATO.

So how might 'coalitions of the willing' (and one must say willing and capable) be formed in these extreme cases and on a legal or quasi-legal basis that most fair minded persons and most 'civilised' nations (in the sense that term was once understood in international law) would find acceptable?

Progress of this nature is unlikely to be made out of an excess of caution. We have seen steps of this kind in recent years, but to attempt to run too fast too soon can result in a fall and one might fear that Libya may be such a case.

Photo courtesy of the US Army.