The responsibility to protect is a concept that spans international law and international relations. In basic terms, it’s a political concept that has developed over the last decade or so that seeks to respond to mass crimes. Previously, the concept of sovereignty had shielded governments from outside intervention. As a response to genocide in Rwanda in the 1990s and various other humanitarian crises (and NATO’s illegal intervention in Kosovo), there was impetus to try to determine some principles for when international governments can and should intervene.
Garwood-Gowers notes that the concept means that while sovereignty provides rights, it also imposes responsibilities. The concept includes three core responsibilities: to protect, to react, and to rebuild. This is a controversial challenge to the traditional westphalian conception of sovereignty. As this developed over five years, three pillars emerged in this concept. The first pillar is responsibility of a host state to protect population against mass atrocity crimes against humanity, war crimes, genocide, and ethnic cleansing. The second pillar is a responsibility amongst the international community to assist countries that are at risk. The third pillar is a responsibility amongst the international community to consider acting where the host state is manifestly failing its responsibilities. In 2005, the UN General Assembly gave the concept international recognition.
Until the Libyan uprising, the international community had not acted on the third responsibility to act. In response to Gadaffi’s violence against the Libyan people, the international community moved surprisingly quickly. Garwood-Gowers asks whether we have entered into a new era where the international community is willing to act on humanitarian concerns. Garwood-Gowers argues that the reality seems to be that the intervention in Libya was surprising, but does not really indicate the acceptance of the responsibility to protect. Most people conclude that NATO overstepped the bounds of its mandate. In Syria, by contrast, the international community was much less decisive about intervention. There has been a serious backlash against what happened in Libya.
The third pillar is a very important conceptual innovation at international law – but it is very much a political and moral duty, not a legal one. Garwood-Gowers is skeptical about whether a legal duty to intervene can ever emerge. He argues that there are three conceptual weaknesses or uncertainties in the third pillar:
threshold limitation: a host state must manifestly fail in its obligations. Who decides when a host state triggers this obligation? This is a political determination in the hands of the security council, but there is little guidance as to interpreting the threshold.
means and ends: there is a concern that the responsibility to protect can be used not only to protect civilians, but also to remove governments – the two are often heavily intertwined.
compliance: how can a security council mandate be supervised? What safeguards can be introduced to provide monitoring of the implementation of a mandate?
Garwood-Gowers’ most recent publication on this topic is forthcoming in the next edition of the UNSWLJ.