In the wake of Russia’s flagrant violations of international law in Ukraine, discussion about the international response has rightly focused on how the international community should respond to the crime of aggression (on this forum, see, for example, here and here).
Now, as evidence mounts of Russian forces indiscriminately bombing populated areas, it seems almost certain we are facing not only aggression but atrocity crimes. Indeed, the prosecutor of the International Criminal Court has opened an investigation into the situation in Ukraine, on the grounds that there is a reasonable basis to believe that Russia has committed – and is committing – war crimes and crimes against humanity.
As evidence of such crimes grows, there is a suggestion emerging that the principle of “responsibility to protect” – the idea that States have a responsibility to protect (R2P) people everywhere from genocide, war crimes, ethnic cleansing, and crimes against humanity – may warrant military intervention in Ukraine. One article published March 4 in the Diplomatic Courier, for example, asserted that the R2P principle was “felt keenly by member states,” and that for those States to be “reduced to well-informed bystanders” would be “morally if not politically untenable.” The authors described R2P as a “call to action,” and suggested that NATO needed a “formula for humanitarian intervention if necessary protected by NATO force” (emphasis added). Elsewhere it was proposed similarly that Russia’s “campaign of indiscriminate carnage against Ukraine’s population” may prompt calls for a “Responsibility to Protect intervention,” and that the “military dimensions of a response” should be given “urgent definition.”
Other analyses of R2P and Ukraine have concluded that because military intervention is clearly not the desired solution in this case – and is being resisted by the West – the situation highlights the limits or even the demise of the R2P principle. On March 7 in The Conversation for example, it was asserted that “the political limits of R2P have been reached,” and that “we should admit R2P was a principled idea whose time never came.”
Many readers of this forum will be aware that these analyses are based on a flawed understanding of what the R2P principle actually entails. But it is nevertheless important that such assertions – nascent as they are – be dispelled, for two reasons.
First, unless a peace deal is soon reached, there is a possibility that political pressure on Western leaders to intervene militarily in Ukraine will increase. A response to this pressure by Western States, in the form of direct conflict with Russia, could for obvious reasons result in catastrophic civilian suffering. Any suggestion that R2P supports such a course of action should be debunked once and for all.
Second, the suggestion that R2P presents a “call to action” in Ukraine (when that suggestion is made in the context of a discussion about military intervention), and the related suggestion that – in the absence of such an intervention – the situation in Ukraine signals the death of R2P, risks undermining the precious political and popular support that does exist for the R2P principle.
With a view to unequivocally dissociating R2P with arguments for war between Russia and the West, this post reviews the content of the R2P principle, and the application of that principle to the crisis in Ukraine. It elaborates firstly why commitment to R2P does not require States to go to war with Russia; and further, examines what the R2P principle does require States to do in response to alleged atrocities in Ukraine.
The Responsibility to Protect as Defined by the General Assembly
The principle of “responsibility to protect” was authoritatively articulated by the General Assembly in 2005 in its World Summit Outcome Resolution. In that resolution, States agreed that:
- The international community, through the United Nations, has the responsibility to use diplomatic, humanitarian, and other peaceful means to help protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity; and that
- they were prepared to take collective action, through the Security Council, in accordance with the Charter, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity.
That resolution did not envisage any option for military intervention for humanitarian protection purposes other than as authorized by the Security Council. So, to be clear: in the context of the Council not having authorized military intervention in Ukraine, the R2P principle as defined by the General Assembly does not provide a basis for military intervention in response to atrocities in Ukraine.
The Broader Idea of the Responsibility to Protect
The World Summit Outcome Resolution is not the whole story on R2P and military intervention, however.
The report that first gave shape to – and defined – the R2P principle was that of the International Commission on Intervention and State Sovereignty (ICISS), in 2001. That Commission was established by the Canadian government to answer the question: “[W]hen, if ever, it is appropriate for States to take coercive – and in particular military – action, against another state for the purpose of protecting people at risk in that other state?”
In order to answer that question, ICISS established a framework for decision-making. That framework posited six criteria that would need to be met in order for military intervention to be warranted as a response to atrocity crimes. Those criteria were not repeated in the World Summit Outcome Resolution – and thus, do not form part of the R2P principle agreed by all States. But, they are nonetheless pertinent to the question of whether military intervention is warranted in Ukraine.
The criteria for intervention proposed by the ICISS were:
- The Right Authority. The ICISS proposed that Security Council authorization for military intervention should always be requested; but not that it was always required. The ICISS did not elaborate the circumstances in which unauthorized intervention might be warranted, but it did say that: “if the Security Council fails to discharge its responsibility in conscience-shocking situations …, then it is unrealistic to expect that concerned states will rule out other means and forms of action.” Thus, in the Russia/Ukraine scenario, where Security Council authorization for intervention is clearly out of the question because of Russia’s veto, the R2P principle as proposed by ICISS might provide a justification for States to act militarily even without Security Council authorization.
- Just Cause. The ICISS proposed that a military intervention launched pursuant to the R2P principle must be aimed at halting or averting large scale loss of life or large-scale ethnic cleansing. In the case of Ukraine, this criterion could clearly be satisfied.
- The Precautionary Principles. Following the ‘just cause’ threshold, the ICISS proposed four precautionary principles that States would need to consider in assessing whether military intervention was warranted pursuant to R2P. While these principles have not found their way into international policy frameworks, the atrocities now underway in Ukraine highlight their enduring relevance. The criteria are as follows.(a) The right intention: is the primary purpose of the intervention to halt or avert human suffering? In the case of Ukraine, there may be a question as to whether the primary purpose of an intervention would be to repel Russian aggression, or to avert human suffering; however, in light of the mounting evidence of war crimes, it seems reasonable to suppose that this criterion could be satisfied.
(b) Last resort: have all diplomatic and non-military avenues been explored? In light of ongoing negotiations for a peace deal, arguments could be made either way as to whether this criterion can be satisfied in the case of Ukraine. It bears noting, however, that this option requires only that all options have been explored, not exhausted. This is because, to paraphrase the ICISS report, where atrocities are being committed there may simply not be time to work through alternative processes.
(c) Proportional means: the scale, duration, and intensity of the military operation should be the minimum necessary to secure the humanitarian objective in question. Similarly to point (a), there may be a question here regarding what exactly is the ‘humanitarian objective’ – however, again, it seems likely that this criteria could be satisfied, with appropriate military planning.
(d) Reasonable prospects: there must be a reasonable chance of success in halting or averting the suffering which has justified the intervention, with the consequences of action not likely to be worse than the consequences of inaction.
It is this last criterion that provides the fundamental stumbling block when assessing the appropriateness of military intervention in Ukraine pursuant to an “R2P analysis.” On this point, the authors of the ICISS report proposed that “a military action for limited human protection purposes cannot be justified if in the process it triggers a larger conflict.” And they proposed, moreover, that “application of this precautionary principle would on purely utilitarian grounds be likely to preclude military action against any one of the five permanent members of the Security Council even if all of the other conditions for intervention described here were met.”
As has been frequently acknowledged in recent weeks, any military escalation of the conflict in Ukraine involves a risk of escalation across the nuclear threshold. And, as Christopher Chivvis observed in a recent analysis, if this threshold is indeed crossed, even in the best-case scenario where “both sides [eventually] take their fingers off the triggers,” the “nuclear taboo” would have been broken, with far-reaching consequences for non-proliferation. The worst-case scenario, obviously, is unimaginably worse.
In short, the responsibility to protect principle does not require States to go to war with Russia, regardless of whether one prefers the principle as authoritatively adopted by the General Assembly in 2005, or as conceived by the ICISS in 2001. And, contrary to the suggestion cited above that the situation in Ukraine signals the death of R2P, the almost unprecedented lengths to which States have gone to explore non-military options for responding to the crisis shows the extent to which the international community can go, and is willing to go, even without the Security Council.
So What Does the Responsibility to Protect Require States to Do in Ukraine?
Rather than decrying the end of R2P, it is more useful to consider what that principle does actually require States to do about the commission of atrocities in Ukraine.
In 2012, the U.N. Secretary General elaborated the components of a “timely and decisive response” to atrocity crimes, as promised by the General Assembly in the World Summit Outcome Resolution. Of particular relevance to Russia/Ukraine, the Secretary General stressed the importance of sanctions. He noted that these might include:
…freezing of financial assets of both the Government and individual members of a regime and imposition of travel bans; suspending credits, aid and loans from international financial institutions to Government officials located abroad; restricting the provision of other financial services to a Government or individual officials; controlling the availability of luxury goods, weapons and related materials, and high-value commodities; limiting diplomatic contact of States with a target entity; applying embargoes on participation in international sporting events; and imposing restrictions on scientific and technical cooperation.
Many of these measures have already been imposed; but there is still further States could go.
Moreover, as has been extensively elaborated in recent weeks, sanctions are but part of a package of available options that could, appropriately combined and coordinated, increase the cost to Russia of so flagrantly violating international law. An examination of these proposals is beyond the scope of this piece, but to cite just one example, Richard Humphreys and Lauma Paeglkalna suggest four types of responses, all of which they refer to as ‘sub-warfighting combat.’ These are: (1) an ‘information war’; (2) legal proceedings; (3) sanctions; (4) diplomatic isolation; and (5) providing military assistance in Ukraine.
States have taken enormous strides in pursuing all these options; however, as Humpheys and Paeglkalna show, there are additional steps that can be taken under each of these headings. For States looking to honor the commitment they made in 2005 to protecting people everywhere from atrocity crimes, what is required is that all these steps – not military escalation – be explored with all the imagination, creativity, and out-of-the-box thinking that States can muster.