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general Kofi Annan, that ‘the primary raison d’être and duty’ of every state is to protect its population (United Nations Secretary-General 2005: para.135). If a state manifestly fails to protect its population, the responsibility to do so shifts to the international community. The responsibility to protect concept has since colonized internationalist debates about conflict prevention, humanitarian action, peacekeeping and territorial administration, and has garnered the support of a strikingly diverse range of states, international and regional organizations and civil society groups.
The idea that force should be used to relieve the suffering of others of course predates the 1990s. Christian Europe was for many centuries inspired to take action by the idea of serving the souls or rescuing the bodies of people elsewhere, and the self-appointed civilizing mission of European empire was premised upon the idea that benevolent tutelage in the art of European civilization was the answer to the suffering of those outside the community of faith. Even in the modern age of the United Nations (UN) Charter, in which states have theoretically renounced recourse to war as an instrument of foreign policy, there are many doctrinal and practical precursors to the concept of humanitarian intervention. Peacekeeping, for example, does not appear in the UN Charter as one of the grounds upon which recourse to force may be authorized. It emerged in the early 1950s, alongside the process of decolonization, as a means of responding to conflicts over territory, threats to the sanctity of former colonial investments and civil war in post-colonial states. The use of force against states in Africa, the Middle East and Latin America was also justified during the Cold War on the basis the intervention was necessary to defend citizens of the home state who were abroad. Such doctrines served to justify armed intervention against Third World states, in the name of defending individuals at risk of harm. Nonetheless, during the Cold War period, the notion that a powerful state or a coalition of allies might intervene to rescue or protect the people of another state could not easily be represented as an apolitical action. The Brezhnev doctrine of intervention to protect the self-determination of socialist countries in the face of capitalist threats, and the Reagan doctrine advocating the legitimacy of pro-democratic invasion, were met with protest and derision. It was the institutional and ideological conditions of the post-Cold War period which led to the growth of support, amongst policy makers and academics, for the idea that force can legitimately be used as a response to humanitarian challenges.
The institutional conditions which made possible the shift in support for the notion of humanitarian intervention included the post-Cold War revitalization of the Security Council and the corresponding expansion of its role in maintaining international peace and security. For many years the coercive powers vested by the UN Charter in the Security Council seemed irrelevant. During the Cold War, the Security Council was paralysed by reciprocal use of the veto exercisable by the five permanent members (the P5) – China, France, the United Kingdom, the United States and what was then the Soviet Union. Under Article 27(3) of the charter, decision of the Security Council required the affirmative vote of nine members, and the concurring votes of the permanent members. The P5 regularly made use of that veto power during the Cold War to protect against international interference in their spheres of interest. The ending of the Cold War meant an end to that automatic use of the veto power. The range and nature of resolutions passed by the Security Council in the decade following the end of the Cold War suggested that the Council was willing to treat the failure to guarantee democracy
Box 25.1 THE UN AND USE OF FORCE
The UN charter was adopted by the fifty founding member states of the new organization at San Francisco in June 1945. Under Article 24 of the UN Charter, the Security Council is the organ charged with the primary responsibility for maintaining international peace and security. Under Chapter VI and VII of the UN Charter, the Security Council is granted powers to facilitate the pacific settlement to disputes, and to decide what measures, including the use of armed force, should be taken to maintain or restore international peace and security. UN member states renounce the use of force as a tool of foreign policy, except in self-defence or where such action is authorized by the Security Council. The jurisdiction of the Security Council under Chapter VII is triggered by the existence of a threat to the peace, a breach of the peace or an act of aggression. Since 1989, the Security Council has proved itself willing to interpret the phrase ‘threats to the peace’ broadly, to include situations of civil war or humanitarian crises.
Figure 25.1
The UN Security Council, United Nations, New York. Photo: Eskinder Debebe
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The essence of that consensus is simple: we all share responsibility for each other’s security. And the test of that consensus will be action. (United Nation High-Level Panel 2004: 16)
Like ICISS, the panel developed this notion of a shared responsibility by reference to notions of protection. The Panel endorsed what it referred to as ‘the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort’. The primacy of protection to the purpose of the state was taken up in the report of the UN secretary-general to the 2005 World Summit session of the General Assembly. The secretary-general there started: ‘I believe that we must embrace the responsibility to protect, and, when necessary, we must act on it’ (United Nations Secretary-General 2005: para. 135). He continued: ‘this responsibility lies, first and foremost, with each individual State, whose primary raison d’être [ or reason for being ] and duty is to protect its population’. According to the secretary-general, if ‘national authorities’ are not able to ‘protect their citizens’, this responsibility ‘shifts to the international community’. The responsibility to protect was enshrined in the World Summit Outcome unanimously adopted by the General Assembly in September 2005, and has since been reaffirmed by the Security Council in resolutions dealing with the protection of civilians in armed conflicts, the deployment of peacekeepers in Darfur, and the authorization of intervention against Libya (Orford 2011c)
A decisionist conception of the need for a sovereign guarantor of law emerges in much of the responsibility to protect literature assumes that where existing order threatens to break down, a sovereign must be found who can in fact take the decision that a state of emergency exists. Advocates of humanitarian intervention in these terms focus much of their attention on calling for a decision to be made in times of emergency. So Thomas Weiss, a strong supporter of the notion of humanitarian intervention, comments that ‘even if none of the choice are ideal, victims still require decisions about outside help’ (Weiss 1999: 2). And the ICISS report states:
The most compelling task now is to work to ensure that when the call goes out to the community of states for action, that call will be answered. (International Commission on Intervention on State Sovereignty 2001:70)
To this degree, the responsibility to protect literature adopts Schmitt’s solution to the dilemmas of legitimacy – the need for there to be a guarantor of the values of the legal order. The one who decides on the exception - the Security Council, the United States, the coalition of the willing – is the sovereign guarantor in this sense. This prioritizing of the role of the executive as guarantor of the legal order also manifests itself in the post-conflict phase. Intervention is often followed by the creation and legitimization of strong authoritarian state theory was to diminish the space for parliamentary participation and expand the space for executive governance in the name of achieving social and economic integration (Somek 2003). This is precisely the nature and effect of post-