The current Syrian imbroglio epitomizes all the dilemmas and contradictions of the "Responsibility to Protect" (R2P) doctrine adopted by the U.N. in its 60th anniversary summit (see May/June 2011Washington Report, p. 44). It is perhaps fitting that KofiAnnan, the secretary-general who did more than anyone to bring about adoption of the doctrine, should now have been encumbered with the responsibility of representing the international community in Damascus.
On one level, the continuing slaughter and repression in Syria suggest the doctrine was a failure-but it is worth noting that those who seek to protect the Assad regime no longer invoke sovereignty in the way that they would have done a decade or so ago: they do not defend the right of the dictator to kill his own people.
Annan's stroke of genius was to make an end-run around the U.N. Charter, with its enshrinement of states' rights and defense of the status quo, and instead reinterpret it. The governments of the U.N. assembled for the 2005 Summit unanimously declared that the "threats to international peace and security" that the Charter empowered the Security Council to deal with included cases where governments failed to protect their own populations.
Hence Sudan, Libya-and now Syria. And hence the emboldenment of Ban Ki-moon to become the first U.N. secretary-general to call for the departure of an existing head of state, Hosni Mubarak. Although of only small consolation to the Syrians at the moment (let alone the Bahrainis, or indeed the Palestinians), this is a significant step forward in the growth of international law.
The arguments against intervention have, instead, been a mixture of expedience and pragmatism-echoing, in fact, the arguments used in the original debates and the cautionary notes of those who first drafted the declaration-but avoid the absolutist invocation of sovereignty which they would have made a decade ago.
The international commission, often known as the Axworthy Commission, whose work formed the basis for the declaration pondered deeply on the dangers of the doctrine at the hands of the expediently unscrupulous-which of course almost by definition includes most governments. Since former British Prime Minister Tony Blair had only recently devalued the concept of humanitarian intervention by retrospectively invoking it over Iraq, it instead was "euphemized" as the Responsibility to Protect. Recognizing the dangers inherent in a doctrine which eroded the absolute prohibitions on aggression and annexation that, combined with respect for sovereignty, formed the bases of the post-Axis international compact, they used the Hippocratic injunction "First do no harm." Make sure the intervention does not make things worse-as, for example, most people would say the invasion of Iraq did.
Those overly impatient with international restraint in the face of repression, as in Sudan, or Syria, or Bahrain, let alone Palestine, should bear in mind that the latter's legal case rests upon the principle of the inadmissibility of the acquisition of territory by force established conveniently after much of Europe's map had been redrawn by precisely such methods.
To deal with the potential abuse of R2P-such as Hitler invoking humanitarian intervention to justify his move against Czechoslovakia-the commission espoused a set of Precautionary Principles:
A. Right intention: The primary purpose of the intervention, whatever other motives intervening states may have, must be to halt or avert human suffering. Right intention is better assured with multilateral operations, clearly supported by regional opinion and the victims concerned.
B. Last resort: Military intervention can only be justified when every non-military option for the prevention or peaceful resolution of the crisis has been explored, with reasonable grounds for believing lesser measures would not have succeeded.
C. Proportional means: The scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the defined human protection objective. …