Responsibility to Protect (R2P) is an emerging norm in international law. UN Security Council Resolution No 1973 of March 17 authorised,on humanitarian grounds,action under Chapter VII of the UN Charter for the protection of civilians. This resolution on Libya has given legitimacy to the R2P norm.
Equating the Libyan security forces attack on the civilian population to crimes against humanity,the resolution authorised member states to act nationally or through regional organisations and associations… to take all necessary measures… to protect civilians and civilian populated areas under threat of attack while excluding occupation of any part of Libya.
Following the resolution passed by 10-0,with abstentions of India,Brazil,Germany,Russia and China NATO forces launched strikes against Libyan forces,in which,ironically,many civilians have been killed. The Arab League supported a no-fly zone but has since developed cold feet in view of the killings of the civilians. What began as a mission to protect civilians from government forces has in reality become a mission for regime change in Libya.
The supporters of military intervention in Libya justify it on humanitarian grounds and hold it entirely legal in view of the UNSC resolution and the support from the Arab League. The critics say the resolution did not explicitly authorise military action and that the Arab Leagues support was only for a no-fly zone. It has also been pointed out that NATOs intervention in Libya is a case of the Wests double standards. Intervention has been ruled out in Bahrain and Yemen whose rulers are friends of the US.
The international humanitarian law has evolved since the mid-1990s when several interventions were made in Somalia,Bosnia and other places. The UNSC resolution shows that there is a grudging acceptance of the controversial doctrine of R2P. It has been in the making for some years now. NATOs military intervention in Kosovo in 1999 on grounds of genocide was highly controversial. Two years later,in 2001,R2P was mentioned by an International Commission on Intervention and State Sovereignty led by Gareth Evans. It argued that the international community had a moral duty to intervene to avert or halt atrocities against innocent civilians anywhere in the world. In 2004,the UN secretary-generals high-level panel endorsed the doctrine of R2P,calling it an emerging norm in international relations. In 2005,at the 60th session of the General Assembly,191 heads of state and government representatives unanimously endorsed R2P.
The problem with R2P is that it pits the principle of non-intervention and inviolability of state sovereignty against the responsibility to protect. R2P implies that state sovereignty is not absolute and can be violated under certain conditions. In the absence of a common understanding of what these conditions are and how the responsibility to protect should be implemented,there is potential for gross misuse.
Further,in the current international order,the decisions are taken not so much to protect principles as for reasons of politics. The UNSC decisions reflect realpolitik. Some UNSC members are not even democracies and their own record on human rights protection is suspect. Unambiguous guidelines for the use of R2P,including military intervention as last resort,do not exist. Interventions are likely to be decided on a case-by-case basis and in an ad hoc and arbitrary manner. Another crucial question is who will enforce the decision to intervene. The UN has no capacity of its own to intervene. Should it depend solely upon regional organisations such as NATO to intervene?
It would be interesting to recall that India has itself intervened in the past in its national interest,for instance in East Pakistan in 1971 where the Pakistani army was carrying out genocide and millions of refugees had fled to India.
Indian military intervention,inter alia,stopped the genocide. The US had strongly opposed Indian intervention at that time.
Indias abstention on the Libyan resolution was on pragmatic grounds and not in opposition to the R2P doctrine per se. Genocide or war crimes have not been established in Libya. The explanation of the Indian vote makes it clear that India was worried that the resolution was based on very little clear information,including a lack of certainty regarding who was going to enforce the measures. In Indias view,the reasons for military intervention had not been convincingly established.
In the Libyan case,politics and principle have clashed. There is need for further debate on what R2P means for international law and how it should be implemented. Frequent use of military interventions in the name of R2P might destabilise the international system and do more harm than good. The ground rules for intervention must be clearly spelt out and accepted by the widest possible consensus.
The writer,a former joint secretary at the National Security Council Secretariat,is at the Institute for Defence Studies and Analyses,Delhi