responsibility to protect
1. The title of this seminar refers to a complex set of political, legal, and ethical issues which have figured prominently on the agenda of the World Council of Churches for the last 10 years. As a preliminary result of these ecumenical reflections the Central Committee of the WCC in January 2001 received a study document under the title “The protection of endangered populations in situations of armed violence: toward an ecumenical ethical approach”. The document was shared widely within the constituency of the WCC with the expectation to generate discussion and responses. At its most recent meeting, the Central Committee received an interim report on the subsequent discussions and developments under the title “The responsibility to protect. Ethical and theological reflections”. This latter document is in your hands; its contents therefore do not need to be summarized. It refers explicitly to a number of more recent studies concerning the same topic, including the report by the International Commission on Intervention and State Security (ICISS) under the title “The responsibility to protect”; a study paper by the Church of Norway Commission on International Affairs on “Vulnerability and Security”; a previous study by the EKD under the title “Steps on the way to peace”; and a statement published following a consultation of representatives of the Historic Peace Churches on “Just peacemaking: towards an ecumenical ethical approach from the perspective of the historic peace churches”. These different documents form part of the background of these reflections.
2. Since the previous speaker, H.E. Mohamed Sahnoun, as co-chair of the ICISS, has already addressed the political and legal aspects of the issues under discussion, I shall concentrate myself on the ethical dimensions. Given my background as a Christian theologian with some experience in teaching Christian ethics and my present position as General Secretary of the World Council of Churches I shall approach the subject on the basis of the long tradition of ecumenical discussion among Christian Churches and in particular the positions formulated by the World Council of Churches over the last decade. These positions have been articulated in public statements and other interventions regarding the first gulf war in 1991, the wars in the former Yugoslavia, the genocide in Rwanda, and most recently with reference to the war in Iraq. They have generally maintained a very reticent attitude regarding the use of military force in response to conflict situations and a strong support for the principles enshrined in the Charter of the United Nations, especially those in Art, 2.4 and 7 of the Charter.
3. The specific issue under consideration in this seminar is generally being referred to as “humanitarian intervention”. The World Council of Churches has expressed its reservation with regard to this designation and has opted instead for a formulation which places the emphasis on human protection instead of humanitarian intervention. This change of terminology which follows the same line as the ICISS recognizes the dilemma inherent in the UN Charter, i.e the tension between the prohibition of intervention into the internal affairs of sovereign states (Art 2.7) and the affirmation of the universal validity of human rights and the recognition that the observance of human rights and fundamental freedoms for all is essential for international peace (Art. 1.3 and 55c). The ICISS offers a political and legal solution for this dilemma by shifting the terms of the discussion from the question of the “right to intervene” to the “responsibility to protect” and by reinterpreting sovereignty as including the responsibility of a given state to protect its citizens. While the report makes a convincing case for this reinterpretation in terms of international law and the spirit of the Charter of the UN, and while it broadens the perspective by adopting the wider principle of “human security” over against the narrow understandings of “national security”, its calls for further discussion of the ethical issues involved. Like the study document from the Church of Norway, the report draws on the traditional doctrine of the “just war” to develop its “precautionary principles” and it places all the emphasis on the need to develop a “culture of prevention” in the place of the prevailing culture of reaction. However, the responses presented in the report raise a number of basic ethical questions which require further discussion.
4. The international convention against genocide of 1948 is the only instance where the international community has accepted the legitimacy and even the obligation to disregard the sovereignty of a given state in order to prevent a crime against humanity. This raises the question whether situations where the relevant government authority is unable or unwilling to prevent systematic, continuous and massive human rights violations can be considered as fulfilling the conditions for intervention under the convention against genocide. So far, there is no consensus among those responsible for international law or policy making. The WCC document refers in particular to the problem of selective intervention: “Recent international military engagements undertaken in some situations in the name of ‘humanitarian intervention’ and the failure to intervene in others have raised serious moral and ethical questions. How can the international community come to the aid of people in crisis in a proportionate and consistent manner which gives equal value to all life?” As a provisional conclusion the documents states: “that it is ever necessary to consider that the use of armed force in international relations is a reflection of the failure of the international community to have responded in a timely and appropriate fashion to prevent a conflict or to resolve a conflict during its early stages. An inadequate or inconsistent response to human suffering compounds the moral failure.”
5. Christians are called to a ministry of just peacemaking, as the declaration from the Historic Peace Churches underlines. But they cannot escape making decisions involving moral and ethical uncertainties. Thus, from an ecumenical Christian perspective the question arises whether “the international community should refrain from taking up arms even to protect endangered populations in situations of armed violence or to defend those deployed by competent international authority for this purpose. Here competing moral and ethical values must be considered. Some Christians say yes, believing that the teachings of Jesus require us to oppose any use of armed force. Others say no, considering that the protection of human life may require it to do so in extreme situations, and considering that such decision should be approached with great humility. In either case, responsibility for unintended consequences must be accepted both by those who choose to use armed force and by those who do not.”
6. The decisive ethical questions concern the range and the limits of the responsibility to protect and the appropriate means for such protection. Human life is characterized by a fundamental vulnerability and thus is in need of protection and security. However, it is recognized that the responsibility of a given state or government to protect its citizens is limited to maintaining the rule of law, respecting human rights and human dignity and providing for the basic safety and necessities of life. The responsibility to protect does not include an obligation to guarantee total security. Under normal circumstances the protection of citizens is provided for by the forces of order, in particular police, and by the judicial process. It is generally recognized that the use of force may be required by police to fulfil their mandate to protect citizens. The use of force under such circumstances is governed by strict legal criteria and serves the sole purpose to bring the perpetrators to justice. There is a broad ethical consensus that in such cases the use of force is legitimate and ethically justified. The use of lethal force is considered as an extreme case in situations of self defence or where the life of other people is directly threatened. In any case, it will be subject to judicial examination. In addition, most constitutional states distinguish clearly between the role of police and of the military. This implies the explicit prohibition to use the military to maintain public order and guarantee the safety of citizens, except in the case of a state of emergency. But even then, clear lines are being drawn for the deployment of military forces and for the rules of engagement. The tendency to interpret the concern for security primarily in military terms has led to a weakening of the distinction between the approach of police forces, which is geared toward protection and maintenance of order, and the task of military units.
7. From an ethical perspective, protection basically implies a defensive approach. This means that prevention must receive priority attention. The principle to do as little harm as possible can best be followed when potential threats to security are identified and defused at an early stage before the conflict has come out into the open. But even where prevention has failed, the orientation toward protection of the endangered population remains defensive; it may have to be content with eliminating the immediate threat with as little harm as possible, without claiming to have removed the root cause once and for all. In that respect it follows a similar logic as in the case of the medical treatment of an acute illness which does not include a guarantee against possible relapses. The objective normally should be to restore the capacity and willingness of the authorities of the given state to provide for human security relying on their own forces. The international community can influence and further this process in various ways, including diplomatic, legal, political and financial/economic measures of incentive or pressure. These measures belong to the standard instrumentalities of a preventive strategy, but they remain important even in cases of imminent or actual threat to human security. The responsibility of the international community should be only subsidiary, while the primary responsibility to protect remains with the authorities of the sovereign state and its forces of order.
8. The broader discussion about the responsibility to protect and the role of the international community focuses on those situations where the legitimate authority is either unable or unwilling to live up to the responsibility inherent in its sovereignty. The decision whether in such cases the international community should assume the responsibility to protect raises political and legal as well as ethical questions. Who makes the assessment that human security in a given state is endangered to such an extent that protection becomes a concern for the international community and on the basis of which criteria? Who has the legitimate authority to take this decision on behalf of the international community? What are the objectives and the limits for the exercise of this responsibility? These questions have been treated extensively in the report of the ICISS and the conclusions need not be repeated here; from a legal and political perspective they represent a reasonable consensus.
9. The more critical issues emerge when the government of a given state is not only unable or apparently unwilling to protect its citizens, but when the forces of order, including the military, become themselves the source of the threat to human security and act with the connivance or even under the order of the government against their own fellow citizens. An extreme situation exists where the public order has broken down completely and there is no legitimate authority anymore to defend the basic rights of the people (“failed states”). These are the threshold cases involving massive human rights violations or killings with genocidal character or intent and the case of “ethnic cleansing”. In such situations, the report of the ICISS suggests that the international community has an obligation to act. However, moral outrage in international public opinion cannot by itself be a sufficient basis for the political decision on the part of the international community to act. The unmediated translation moral imperatives, e.g. the imperative to defend the basic right to life of endangered populations, into political action can have disastrous and even immoral effects. It bypasses the decisive stage of critical judgement regarding the possible consequences and implications of the political action. Normally, it is the function of the rule of law to mediate between morality and politics, between moral and political judgment. Legal norms protect a community against moral rigorism as well as against political arbitrariness. Of course, the simple fact that certain uses of power are covered by law is not yet a sufficient basis to establish their legitimacy. But the legal order constitutes an indispensable yardstick of critical control. This applies in particular for the decision to use force, either by police or the military.
9. The transfer of the responsibility to protect from a sovereign government, or from a “failed state”, to the international community cannot, therefore, be based solely on moral arguments or on grounds of political expediency; it should pass through the critical judgment of the trustees of the rule of law. Any infringement of the individual autonomy and integrity of citizens in a given state must be authorized by a judge according to the law of the land. The same principle should apply in cases where the international community feels obliged to violate the sovereignty of a given state. The present situation where the Security Council of the UN acts both as trustee of international law and as the enforcing authority is politically and ethically unsatisfactory and opens the door to selective and arbitrary decisions. Chapter VI of the charter invokes the authority of the International Court of Justice for the peaceful settlement of disputes and conflicts. Meanwhile, a new instrument has been created with the International Criminal Court which is to act as a trustee of international humanitarian law. The moral and ethical principle that sovereignty implies the responsibility to protect the life and security of all citizens must be translated into a framework of norms and legal judgements which allow, and even oblige, the Security Council to appeal to an international court of law to assess the evidence which is believed to indicate that a given state is failing in its fundamental responsibility to protect its citizens and is thus no longer entitled to the respect of its sovereignty according to Art. 2.7 of the UN Charter. This call for a critical, independent judicial assessment of the evidence becomes all the more important in view of the power exercised by the media both on public opinion and on political decision makers and given the recent experience with highly questionable, or even manipulated evidence which has been used as the basis for moral and political judgement.
10. The problem is compounded in the case of “failed states” where the threat to human security arises from irregular armed groups under the command of “war lords” and where the structures of public order have broken down. The parties to the conflict do not consider themselves bound by any of the conventions of international humanitarian law and very often the civilian population is being taken hostage or used as pawns in the conflict. Diplomatic, legal or economic/financial means of exercising influence and pressure on the conflicting parties in the interest of protecting the civilian population in most cases remain ineffective. The crisis in Somalia, or the conflicts in Liberia and Sierra Leone are the classical examples for such a situation. It would therefore appear that the use of force by the international community is the only means to end the armed conflict and the suffering of the civilian population. The experience of military intervention in the civil conflicts mentioned above indicates however that an armed intervention from outside is not necessarily the appropriate way to protect the affected population. While it may be possible to defend the “right to intervene” under international law – even more so, since sovereignty in these cases has virtually ceased to exist – the responsibility to protect calls for a shift of perspective which introduces different ethical criteria.
11. The ethical problem here is related to the fact that the defensive objective of human protection in most cases is incompatible with the logic and the rules of military intervention. Military logic is geared toward interstate conflicts which involve armies with a unified structure of command and allow for the distinction between combatants and civilians. Military forces are trained and equipped to fight an enemy and to achieve victory. In the case of civil conflicts the lines are not clearly drawn between friend and enemy; the “enemy” lacks a unified structure and is often enough invisible, as in guerrilla warfare. An outside military intervention lacks clearly identifiable targets and risks to destroy vital parts of the infrastructure of the country thus exposing the population to added insecurity and coming in conflict with international humanitarian law, especially the Geneva Conventions. The tendency of the intervening forces to minimize casualties among their own units and thus to give priority to air attacks, leads to “collateral damage” which betrays the “responsibility to protect”. In addition, the present experience in Iraq shows that military units are not trained and ill equipped to handle situations of a fragile peace and to restore civic order.
12. When the primary objective, therefore, is to protect the civilian population and to facilitate the re-establishment of a functioning framework of public order, the legitimacy of international action will be judged on the basis of different criteria than those of military effectiveness. The militarization of the understanding of security enters into conflict with the responsibility to protect. Military action is oriented towards maintaining and defending “national security” in situations of inter-state conflict. It is not adapted to safeguarding human security in situations of civil conflict. The use of military force may be compared to the decision to operate in the case of an acute illness of the human body; an operation may be necessary in certain cases, but it can in fact be counterproductive in many others. In either case, the restoration of the health of the patient is the paramount objective. Thus, in a situation of a dramatic breakdown of public order and the inability or unwillingness of the existing government to protect the citizens, the basic objective of any international intervention must remain to re-establish a functioning framework of government which can assume the responsibility to protect, however imperfectly. This calls for a strategy of intervention which limits the role of military force to those exceptional circumstances which call for “robust” action and instead follows the defensive logic of police operations. They may be less “effective” in the short run and may appear to respond to symptoms only, instead of addressing the root causes. However, they generally leave the existing infrastructure and the fabric of public order intact and seek to cooperate with and affirm the forces of civil society, especially the religious communities, with a view to strengthening the capacities of the community to defend itself against the sources of disruption and insecurity.
13. This leads finally to a brief consideration of the relationship between humanitarian action and the intervention of armed forces in situations of conflict. The concept of “humanitarian intervention” has led to a very problematic blurring of the fundamental distinction between these two ways of exercising the “responsibility to protect”. A military intervention causing disproportionate numbers of civilian casualties and vast damage to the civilian infrastructure in violation of the Geneva Convention cannot be considered “humanitarian”. Further, it distorts the accepted understanding of the criteria for humanitarian action, i.e. universality, independence, impartiality and humanity. Humanitarian action, e.g. by the International Red Cross or other voluntary agencies, aims at protection or assistance irrespective of religion, ethnic or national origin, and political or ideological convictions. These humanitarian ideals have to be protected against being confused with military considerations. Even military protection for humanitarian action can compromise its objectives. Human rights, in particular, cannot be enforced by military means. In contrast to military logic, it is precisely the purpose of international humanitarian law to protect the rights and the dignity of people in situations of war.
14. Humanitarian action, therefore, accepts the basic vulnerability of human life in community and aims at turning it into a source of cooperation. The innovative reflections of the international affairs committee of the Church of Norway about “vulnerability and security” open the way for the development of alternative strategies of protection which do not rely on the use of military force, or limit its use to borderline cases, and instead place all the emphasis on civilian means of protection, including the use of police forces. The renewed militarization of security considerations under the banner of the “war on terror” must be resisted on ethical, as well as on legal and political grounds. For the same reason it remains problematic to invoke the traditional criteria of the ethics of war, i.e. the “precautionary principles” of the “just war” concept. They assume an analogy between the classical situation of inter-state war and the contemporary conditions of civil conflict or the threat of terrorist attacks. Such analogy is misleading and can hinder the efforts to translate the shift of perspective from the “right to intervene” to the “responsibility to protect” into new and coherent strategies for action on the part of the international community. This task should receive priority attention in the context of reflections about human security.
Rev. Dr Konrad Raiser