JUST INTERVENTION? Between Responsibility to Protect and Prohibition of Force

Panel I:

After welcoming the audience and briefly presenting the book, Hannes Swoboda (President IIP, MEP ret.) started the panel discussion by sharing his own opinion about the concept of Responsibly to Protect (R2P). R2P earned its bad reputation from being misused on a regular basis for the justification of military interventions. Swoboda illustrated this with a few examples such as the recent war in Libya. As every case is different, he states, R2P has to be used carefully. The outcomes of military humanitarian interventions, he argues, may be unforeseeable and violent.         
For Erwin Lanc (Minister ret., Honorary President of the IIP), military humanitarian interventions under the flag of R2P are no reasonable option in dealing with future conflicts. He points out that systematic approaches towards prevention of violent conflicts are paramount to focusing on what to do after an already escalated conflict. He argues that there should not be any kind of military support without the legitimation of the UN – even if promoted by veto powers.

Stephanie Fenkart (Director IIP) opened the panel by giving an insight into the discourse surrounding R2P. If all diplomatic tools fail to resolve a domestic conflict, she states, the armed intervention of one or multiple actors of the international community is an ultima ratio and therefore remains a last given option.

R2P operates as a concept of action to protect the people of states who are either not willing or not able to protect their citizens against an immediate threat. However, Fenkart further argues, R2P is undoubtedly controversial.

R2P follows different rules and the international community who has made R2P a concept for action wants to meet its responsibility to protect the citizens of other states, who are either not willing or not able to protect their citizens against an immediate threat. But R2P is undoubtedly controversial.

At the very core of the discussion are questions about an armed interventions' reasonability, efficiency and extent. Which intentions lead to an armed intervention and on which theoretical and judicial basis is it exercised? When is an intervention seen as efficient, effective and sustainable? Who is realizing it and, last but not least, which purposes hide behind a specific intervention?

The concept of Responsibility to Protect is fairly new and was developed in the aftermath of mass atrocities and genocides of the 20th century. The International Community felt the need for clear objectives when to take action against war crimes. However, military humanitarian interventions always include human losses on a smaller or larger scale. Therefore, R2P can be interpreted as another attempt to answer the question of whether there is such a thing as a 'just war'.

Heinz Gärtner (Prof. for Political Sciences, Advisory Board member IIP) affirms that the concept of a just war can be obtained by following the rules and principles of R2P. He further argues that a moral high ground may be reached by primarily focusing on the protection of citizens of another state rather than focusing on the aspect of intervention itself. The set of R2P principles were carved out in response to a report developed by general Kofi Annan in 2000. The report in question called for collective action against mass atrocities and genocide. Annan’s report discusses three historical cases of such mass atrocities: The genocide in Rwanda in 1994, where 800.000 Tutsi where brutally murdered within a few months,  the massacre in Srebrenica in 1995, where nearly 8000 male Bosnians were killed, and the US lead intervention of the UN in the Kosovo War in 1999. Annan’s report argues that in all three cases, the international community had failed to react properly and therefore needs clear policy guidelines. 
But what are the legal and legitimate grounds for humanitarian military interventions? The report bases his argumentation on three pillars: First, it is the state’s responsibility to take action if a mass atrocity happens within its borders. The state in which mass atrocities occur is the first instance to react and eventually stop atrocities from being committed. If the state is unable or unwilling to protect its own citizens, the International Community and United Nations International Security Council should take over the responsibility in order to guarantee the safety of a vulnerable group. It is the international community’s right to use the military intervention as a tool to resolve the conflict. Nevertheless, the UN Security Council always has to justify the necessity of military force.        
The report is based upon the criteria of a just war: A war may be just, if the decision to use military force is based on a just cause only. The criterion of a just cause is fulfilled if the international community is reacting to atrocities like ethnic cleansing or mass killings. The overall intention should be the prevention of human suffering. As mentioned in the beginning of the report, a military intervention should remain a last possibility, an ultima ratio for conflict resolution. Additionally, the intervening parties should be aware of using just the right amount of military power for conflict resolution in order to be proportional and reduce human casualties and collateral damage. Reasonable prospect is defined by the outcome of the intervention being better than the previous situation. A war can only be just, if enforced by a proper and competent authority. Since the world summit in 2005, the United Nations Security Council represents this authority within the international community. Gärtner stresses this argument in reference to the case in Libya in 1973: In this case, the situation worsened after failed attempts to enforce regime change and foster proper state building. In his conclusion, Heinz Gärtner emphasized the importance of human rights and the need to protect them against aggressors. In his view, the international community should be willing to ensure the implementation of these human rights and prioritize them, even against the sovereignty of states.  

One of the core functions of International law is the protection of civilians. The challenges we are facing in conflict resolution are highly dependent on the constellation of actors. Warfare has changed a lot since the end of World War 2 and so are the actors different than a few decades ago. Instead of the classical type of the interstate war, which seems to be outdated, we can observe an increasing segmentation of actors who play a crucial role to the outcomes of a war, many of them are non-state actors. How can international law still protect civilians, if non-state actors never accepted or legitimized international law?

Angela Kane (UN High Representative for Disarmed Affairs ret., Vice-President IIP) also stresses the fact that we are facing new kinds of warfare with a shift towards intrastate conflicts since the 1990s. However, all the reactions of the United Nations towards mass atrocities where uncoordinated and without a clear policy in terms of military interventions. In the aftermath of the Rwandese genocide in 1994 the UN Security Council was harshly criticized for not reacting to the happenings and has been alleged of an unwillingness to intervene on the African continent. The members of the council refused to use the term ‘genocide’ because then there would have been a necessity and duty to intervene and stop the ethnic cleansing. Followed by other UN peacekeeping and peace building missions throughout the 1990s in Angola, Somalia or the Central African Republic, peace building principles were always enforced with a country specific view. It was former Secretary-General of the United Nations Kofi Annan who in 1999 addressed the disproportion between the value of state and individual sovereignty. With the concept of R2P he demanded a revaluation of the individual’s sovereignty and empower the international community to intervene as soon as this sovereignty is under serious threat in large numbers. The concept of R2P clearly focuses on the individual’s sovereignty rather than reinforcing the role of governments in conflict resolution. The role of governments in conflict resolution is limited to ally with the international community and stop mass atrocities from being committed. R2P even goes as far as denying the state’s sovereignty, in which mass killings occur, in order to save the individual’s sovereignty. Therefore the international community gives the right to intervene to themselves as a whole.          
Furthermore Angela Kane gave a brief overview of various concepts or attempts to restructure the reactions of the international community towards mass atrocities. Referring to the Japanese concept of ‘human security’ she states that in contrast to R2P it only reinforces the role of states in conflict resolution. Another initiative, led by former Secretary-General Ban Ki Moon called “Rights up Front’ can be understood as a reaction to the killings in Sri Lanka in 2013, after a critical report of UN activities in that country was published. The key argument of this concept is the state’s obligation to protect civilians against major human rights violations. How far does this obligation reach? Is a foreign state obliged to protect civilians of another state? Kane argues that a vulnerable civilian group threatened by human rights violations rely on the United Nations interventions and expect them to be implemented. Sadako Ogata, a Japanese humanitarian mission coordinator, says that she does not want humanitarian assistance delivered with a gun. Kane argues that peace keeping operations inherently incorporate humanitarian assistance combines with military measurements, just because military protection of vulnerable groups is needed.       

However, Kane mentions, Russia and China are very reluctant about the protection of another state’s civilians issue. As veto powers within the UN Security Council they can simply block decisions to intervene. Therefore the UN Security Council as the legitimizing authority when it comes to interventions often has a tough job in implementing meaningful measurements on the ground. Especially the case of Syria has shown the difficulties the international community faces in carving out a corporate strategy.
Until today the UN Security Council is lacking of an official whose responsibility it is to enforce R2P if necessary.

Stephanie Fenkart. The concept R2P is closely tight to international human rights. What is the value of this concept within the international human rights discourse?

Ursula Werther-Pietsch (Ministry of European and External Affairs, Austria) observed that the relation of the human rights regime to peace and security on a global level is that human rights are more or less sacrificed to a notion of security. She stresses that even the concept of R2P, to which the protection of civilians is central, is often abused for geopolitical interests. Therefore the work of the Human Rights Council is clearly damaged because of the difficulties in operationalizing the term ‘civilians’ and giving distinct strategies and approaches for interventions. However, protecting human rights are not the key objective anymore.         
There were various reactions towards the downgrading of human rights. Werther-Pietsch mentions the World Humanitarian Summit in 2016, where the members tried to attempt a functioning nexus between humanitarian aid development and peace building. Secondly, it is of high importance to rethink interstate relationships, especially those towards developing countries. The Sustainable Development Goals were on of those attempts to create deepened international interdependencies.        
The only way to ensure and maintain a human rights regime nowadays is to incorporate the approach to maintain these basic human rights into the peace building and state building complex. With the help of the Sustainable Development Goals and the interstate dependencies they create, it is possible to give the human rights regime a fresh impetus. This has also been discussed by the OECD, which tried to link the state fragility discourse with the human rights discourse.       
Later on Werther-Pietsch referred to Kofi Annan, who said that it is not only the use of military force, which makes interventions fruitful. The intelligent combination with other humanitarian measurements is as important as the fulfillment of military help in situations of major human rights violations.

Stephanie Fenkart. Could R2P serve as a contribution to peace? Or what should be done so that R2P is contributing to international peace?

Hannes Swoboda started his examination of humanitarian military interventions by giving several examples where the UN Security Council indeed decided to intervene, but failed to implement all its goals for building a peace regime or even contributed by making the situation worse. Obviously the Rwandan case is symbolic for a failed strategy of the UN Security Council and it is common knowledge that a military intervention could have prevented the genocide from happening. The Security Council failed to make a decision to intervene.
Besides, he argues, military humanitarian interventions under the flag of R2P are controversial because of cases like Libya, where the consequences. By referring to the theory of a just war, there was no reasonable prospect for the intervention in Libya.         
Swoboda mentions the unwillingness of the international community to intervene in Syria was not the biggest issue, but rather its ignorance of what would come after the complete destruction of state structures as the aftermath of the war.  
The debate around R2P often ignores the alternative strategies we have to resolve a potential crisis. Alternative strategies and diplomatic tools like sanctions and more important negotiations. Even if the protection of civilians is the core of a responsibility to protect, implementing R2P still means the use of military force and acceptance of human losses and collateral damage. Again Swoboda stresses the fact that each conflict is different in its own nature and composition of actors and therefore needs a special treatment. Applying the same strategy and approach to different conflicts eventually leads to outcomes nobody wants.

Panel II:

At the beginning of the second panel Stephanie Fenkart (Director IIP) mentioned the lack of data we are confronted with in political as well as scientific discussions about humanitarian military interventions. Therefore, Fenkart invited Doctor Matthias Dembinski (Peace Research Institute Frankfurt, Germany) to elaborate on his project of gathering systematic data about military humanitarian interventions.
Although, he says, the discourse surrounding R2P is vast with a lot of experts participating the truth is hasn’t been much empirical data gained concerning military humanitarian interventions to make profound conclusions. Very few studies are investigating on the effects and the outcomes in target countries these interventions have. However, Dr. Dembinski’s and his colleague’s project is to set data of all humanitarian interventions from 2005 until now. Their statistics are based on 25 cases, including those missions, which already came to an end and those from which enough data was available

Dr. Dembinksi mentions five criteria by which humanitarian interventions are characterized. To name a few: First, a state or a community of states sends armed forces to another state, the target country. By doing so they need to have a detailed intention of saving the civilians of the target country from a pre-existing emergency. The intervention itself does not necessarily need to be authorized or legitimized by the target country’s government.   

Data is collected on three broad issues: the type of emergency in the target country, the amount of casualties before, during and after the intervention, and the eventual outcomes of the intervention. The study aims at answering the question on what kind of implemented measures it needs for a successful mission. In contrast to common believes humanitarian interventions are not only pursued in Africa and not only by so-called Western countries. Their study shows that next to western interveners we can observe a grand number of interveners from other parts of the world such as India, Russia or the UN. Although the UN Security Council is the legal authority, which is enabled to legitimize interventions almost two third of all interventions were only partly authorized and 27 interventions have not been authorized at all.
Furth on, Dembinski examined the tasks executed by the troops in the target countries. Among them the protection of civilians, humanitarian aid, disarmament and peace enforcement. One of the biggest challenges the scientists are facing is the measurement of humanitarian interventions, meaning if a mission was successful or not. Therefore, various criteria  for the success of an intervention have been operationalized. The first success criteria is already fulfilled, if the interveners managed to stop the outbreak of violence within a period of 12 months and therefore controversial as a success criterion. The second success criterion of Dr. Dembinski’s study compares the amount of casualties before the intervention with the amount of fatalities during and after the intervention. He found out the number of casualties after interventions is increasing by 20-25%. Also, five years after the intervening troops left the target country violent outbreaks reoccurred in 8 of the examined cases. The study will be published in 2018.

Besides the different perceptions of legitimized interventions between the so-called western hemisphere and Russia Stephanie Fenkart also criticizes the political, ideological and economic interests of intervening states hiding behind their ambition for humanitarian military interventions.

The next guest on the panel, Alexander Nikitin (Moscow State Institute of International Relations (MGIMO), Director of the MGIMO Centre for Euro-Atlantic Security), elaborates on Russia’s use of military force and the Moscow's approach to R2P. Compared to the total amount of 40 international interventions annually, Russia diminished its participation to a minimum and is now on the same level like France or Great Britain.        

Article 51 of the UN Charter is about a country’s right to self-defense to an immediate threat. In reference to previous wars in Afghanistan Nikitin clearly points out that countries like Russia and the USA are overusing Article 51 on a regular basis for the justification of military interventions. Russia, just like the United Nations, differentiates between peace keeping operations and peace enforcement operations. Regional organizations such as the African Union are legitimized by the UN to launch peace keeping operations by themselves. A major problem is the interference of the international community into regional conflicts. Furthermore, Nikiti says, there are so many different approaches for peace keeping, what it means and what are the goals of it that even the UN and the OSCE are not always aligned in their targets. Additionally the borders between peace keeping, peace enforcement and political missions becomes more and more blurried.

The UN peacekeeping agenda consists of various chapters, each of them with a specific toolbox on how to react to special conflict situations. Nikita points onto the clear distinction between ‘old’ and ‘new’ peace keeping measures implemented by the UN. The old, non-violent measures such as mediation or unarmed observation became replaced by more forceful methods like confiscation of heavy weapons, disengagement of sides, or sending armed troops. In his view R2P is a mixture of the old and new measures of the UN peace keeping agenda. Again, he makes clear that the use of military force on the territory of foreign state violates the sovereignty of this state and is therefore an intervention. R2P is aligned with the definition of an intervention, because it includes the use of military force in a foreign state, but with the goal of establishing a peace regime. The Sovereignty of a state is never absolute, it emerges historically and erodes with time. In Nikitas opinion, states are able to jeopardize their sovereignty if they are not able or not willing to protect their citizens against mass atrocities.

Rather than becoming a united world with a world governance we are lacking authorities and institutions, which are making just decisions for all members of the international community, decisions are still enforced through great power interests of various states within the UN or Regional International Organizations. Peace operations have split into confronting practices based on different standards. There are two models of behaviour on behalf of the United Nations. First the coalition of powers coordinated directly by the UN. Secondly, the Regional organisations take responsibility for interference into armed conflict on behalf of the UN. Intervention into conflicts became an international business, not only UN does this. Another operation which is between chapter seven and chapter eight is called operation „seven and a half“. Done by regional organisations like NATO, EU, AU, but with a strong coercive use of force. A new tendency is that the permission to intervene is expected only from the state authorities. Physical self-defence is not only used for the physical self defence of contingent, but defence of the mandate.

Regarding East and West Interactions, the best example of collaboration was in Bosnia. Further on Nikitin gives several examples, he mentions among others the situation in East Ukraine. Moscow does not use the terminology of R2P, but applies comparable logic. Leaving pro-Russian separatists face to face with Kiev’s regime will destroy them. Moscow's position to Ukrainian conflict has changed several times. Ukraine and Russia can not find an agreement where to keep peace keepers. CSTO is a military alliance of six countries with Russia as its leader. It signed an agreement with the UN that it could be used anywhere including the operation in Ukraine. R2P is an emerging norm, which is not universally recognised. Russia never formally motivated its use of armed forces abroad by R2P, but used its logic. Finally he says that Eurasia is becoming an R2P-land. The concept of R2P is interesting for Russia, especially Moscow.

Stephanie Fenkart asked the next panelist, Ralph Janik (University of Vienna, International Law), about the future of R2P in a European context by referring to the controversial French intervention in Syria after the terrorist attacks in Paris. France evoked the mutual defense clause in the aftermath of the attacks for the first time.

Like earlier panelists he puts emphasis on the misuse of R2P for geopolitical interests of certain states. The intervention in Libya is seen as the ‘heyday’ for military interventions under the name of R2P. Especially the intervention in Libya was criticized for the obvious geopolitical interests the interveners had. Russia also used R2P language in order to justify the interventions in Georgia or the Ukraine. Further on Janik states that we should be careful not to mistakenly confuse all military interventions, which perhaps have been legitimized with a language of R2P, with actual R2P missions. Therefore, he refers to the French intervention in Syria. Troops were sent to defend the so-called Islamic State – a non-state actor, not the Syrian regime, in order to protect their own people on the French territory. Overall we can observe that perceptions of what R2P means varies from one state to the other. Ralph Janik sees a major problem in the disagreements within the EU concerning military and geopolitical strategies. However, a united European military, in his view, would make reactions to critical situations a lot easier. Also these challenging times should be used enthusiastically to create tight bonds between the European states to become a united global player.

In the beginning Jan Willem Honig (King’s College London, Department of War Studies) mentions that R2P rather tends to reinforce a fear in the military that they had already build up during the last twenty years with international interventions, namely that politicians are willing to send their troops to dangerous places all over the world, rather than outlining a particular strategy on how to implement the military protection in the target countries. The key criticism, which has emerged throughout the last 25 years of debate, is that politicians do not have ambitious policy objectives. Moreover they simply do not understand what war is about.

The problem is that the governments of intervening countries often do not make available the means required for a successful conflict transformation, be it through regime change, maintaining cease fire, nation or state building. He further mentions the difficulties of the development of some easy steps to improve the effects of peace keeping means many times over. Especially nation or state building he sees as controversial because the process of developing nations and states took us quite a few centuries in Europe through difficult and tedious processes of trial and error.  The controversy around state and nation building grows with military’s and intervening government’s lesser understanding of the effects of such an intervention. Until now, there has been an astonishing degree of optimism on the part of governments and militaries about the effects of interventions. R2P is an example of a construct that assumes that local people’s reaction towards the intervention would be optimistic anyway. 
Honig points out that the term ‘civilian’ is also a modern and liberal idea, which was invented during First World War. Therefore it is necessary to question the naturalness of civilians more often. Who are civilians? Do they even exist in countries that we tend to intervene? Out of the fact that the so-called civilians did not just change to the intervener’s sides it suggests that the preconceptions of the west about war and the acceptance of violence does not match those in intervened countries or all societies in general. When it comes to the point were the local population clearly does not accept the intervention, the intervener’s military naturally begins to struggle, because they have just been prepared for very different types of conflict and not to engage with the civilian population. Which is not to say the military of intervening countries does not care about civilians. The reduction of collateral damage and avoidable casualties are a clear objective and strategy in humanitarian military interventions.

Stephanie Fenkart. Austria is also active in foreign operations in the context of protection of civilians, it does so militarily but also by civilian means. Please elaborate on the Austrian civilian and military action with the regard on protection from a practical point of view.

Markus Gauster (National Defence Academy Vienna. Institute for Peace- and Conflict-Management) answers that protection of civilians is not only an issue of poverty but also of organised crime. Looking at the global conflict dimensions there is an observable increase of conflicts and crisis, looking at Syria, South Sudan or Jemen. Civilians are subjected to an even higher risk than ten years ago.

Speaking of the practical relevance, in 1960 Austria sent a sanitation contingent to former Belgium Kongo. This intervention was not backed by a concept of protection of civilians but was more or less natural and happened as a contribution to a safe and peaceful transformation for Kongos population. However, there is not necessarily a need for a concept for the protection of civilians. Austria still has a few active soldiers as well as people working for the Red Cross in the DRC. Its aim was to identify the needs of the population with the help of force protection teams, whose task it was to identify the needs of the local population and their protection. Gauster is in favor for a broader definition of protection of civilians. R2P only focuses on immediate threats like mass atrocities and ethnic cleansing etc. To be involved in hypothetical disaster protection like in the United Nations Interim Force in Lebanon, UNIFIL is more interesting respectively more effective for small countries like Austria.Austria among other small countries do not have the means to protect civilians of foreign states with broad military means. Therefore, it is more important to provide other things such as psychological protection. Resuming Gauster says that protection of civilians is not necessarily linked to a certain conception. Furthermore all the humanitarian protection has been transferred to humanitarian actors like NGOs. The vast number of NGOs active in humanitarian protection results in an uncomfortable amount of different approaches. Compared to Germany or Switzerland, Austria does not have a comprehensive, strategic vision when it comes to protection of civilians. Looking on protection of civilians from a military point of view, in collaboration with the police, they do contribute a lot on this field.  
The missing comprehensive strategy regarding Austria’s engagement in humanitarian protection should be invented as soon as possible. A strategy that brings together all actors, NGOs as well as military sand police, can maximaize the effect range of humanitarian means in many ways.   
Still, Gauster does not see the Austrian Bundesheer as a major contributor for armed troops in military humanitarian interventions. In his view, Austria might support weak security structures with military advise, military training and military assistance as Austria has gained a strong expertise in those fields over the last years. Gauster poses the question whether it is still an intervention if you only ‘intervene’ in order to support weak governmental states or weak security sectors?