From Humanitarian Intervention to the Responsibility to Protect

By Luis Manuel Aguana

In all the debate arising from the declarations of the Secretary General of the OAS on the border with Colombia indicating that “we must leave all options open” and the declaration of the Lima Group to oppose a military intervention in Venezuela, it would seem to arise that both positions are contrary when in reality both focus on different aspects of the same problem and that they summarize who is defending each one. The Secretary General of the OAS advocated the defense of a population in a state of prostration and the Lima Group is advocating the defense of the State. Let’s look at that in more detail.

Certainly the traditional position of the States is to invoke first the principle of sovereignty. The Chancellors are the representatives of the States and their position cannot be any other. It is the immediate mechanism of self-protection that comes out of the rule of non-intervention: “A condition of any one state’s sovereignty is a corresponding obligation to respect every other state’s sovereignty: the norm of non-intervention is enshrined in Article 2.7 of the UN Charter” (see point 2.8 in (1)).

However, as we have already mentioned in a previous note (see in Spanish Intervenciones humanitarias, en http://ticsddhh.blogspot.com/2017/08/intervenciones-humanitarias.html) the concept of sovereignty is moving as a consequence of horrendous acts against human rights that occurred in the recent past, and which induced the late UN Secretary-General Kofi Annan to reflect in a speech delivered in September 1999, during the 54th session of the UN General Assembly., “the prospects for human security and intervention in the next century.” He recalled the failures of the Security Council to act in Rwanda and Kosovo, and challenged the member states of the UN to “find common ground in upholding the principles of the Charter, and acting in defence of our common humanity”. Secretary General Kofi Annan left this intervention for posterity in the Millennium Report presented in 2000:

“… if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that offend every precept of our common humanity?” (see point 1.6 in (1)).

From this reflection was born the International Commission on Intervention and State Sovereignty (ICISS) proposed and established by Canada, which produced an extraordinary report published in 2001 and on which we base this note (see ONU-ICISS The responsability to protect – Report of the international Commission on intervention and State Sovereignity at https://tinyurl.com/y8j8yao5).

The ICISS decided “not to adopt this terminology, preferring to refer either to “intervention,” or as appropriate “military intervention,” for human protection purposes. We have responded in this respect to the very strong opposition expressed by humanitarian agencies, humanitarian organizations and humanitarian workers towards any militarization of the word “humanitarian”: whatever the motives of those engaging in the intervention, it is anathema for the humanitarian relief and assistance sector to have this word appropriated to describe any kind of military action” (see points 1.39-1.40 in (1)).

So there is a new approach here from the global point of view: “What is at stake here is not making the world safe for big powers, or trampling over the sovereign rights of small ones, but delivering practical protection for ordinary people, at risk of their lives, because their states are unwilling or unable to protect them(see point 2.1 in (1)) (highlighted by us).

This is extraordinarily important: we are talking about the protection of the human person because their states are unwilling or unable to protect them. That is what Luis Almagro was referring to. The regime that reigns in Venezuela does not want to protect the population because it has openly stated that there is no humanitarian crisis here when the opposite is clearly demonstrated and the most eloquent external expression is in the brutal exodus of people to the borders of the country.

On the other hand, “just as the Commission found that the expression “humanitarian intervention” did not help to carry the debate forward, so too do we believe that the language of past debates arguing for or against a “right to intervene” by one state on the territory of another state is outdated and unhelpful. We prefer to talk not of a “right to intervene” but of a “responsibility to protect” (see point 2.4 in (1)).

The latter changes the perspective definitively. Now we are not talking about the concept of sovereignty as a control of States but as a responsibility of States, “in both internal functions and external duties”: “Thinking of sovereignty as responsibility, in a way that is being increasingly recognized in state practice, has a threefold significance. First, it implies that the state authorities are responsible for the functions of protecting the safety and lives of citizens and promotion of their welfare. Secondly, it suggests that the national political authorities are responsible to the citizens internally and to the international community through the UN. And thirdly, it means that the agents of state are responsible for their actions; that is to say, they are accountable for their acts of commission and omission.The case for thinking of sovereignty in these terms is strengthened by the ever-increasing impact of international human rights norms, and the increasing impact in international discourse of the concept of human security” (see points 2.14-2.15 in (1)).

The responsibility to protect emerges as a new principle of States that has been progressively instituted and that is now being implemented: “The emerging principle in question is that intervention for human protection purposes, including military intervention in extreme cases, is supportable when major harm to civilians is occurring or imminently apprehended, and the state in question is unable or unwilling to end the harm, or is itself the perpetrator (see point 2.25 in (1)) (highlighted by us)

And this is the case of Venezuela. The intervention would be justified on the side of the protection that the Venezuelan State owes us and does not comply with towards its citizens, and the responsibility of the international community to defend the human person above the norm of non-intervention established in the United Nations Charter: “Based on our reading of state practice, Security Council precedent, established norms,

emerging guiding principles, and evolving customary international law, the Commission believes that the Charter’s strong bias against military intervention is not to be regarded as absolute when decisive action is required on human protection grounds” (see point 2.27 in (1)) (highlighted by us)

The Commission considered that “all the relevant decision making criteria can be succinctly summarized under the following six headings: right authority, just cause, right intention, last resort, proportional means and reasonable prospects” (see point 4.16 in (1)). We will focus on the first two.

The UN-ICISS document was drafted to be considered within the framework of UN regulations, so it entirely suggests that the responsibility and competent authority for military intervention should come from within the UN Security Council. Although we know that in our case the Chinese and the Russians – permanent members of the Council – have vetoed the discussion of the Venezuelan case in the Security Council, the Commission does not reject that this could happen but at a high cost for the UN:

As a matter of political reality, it would be impossible to find consensus, in the commission’s view, around any set of proposals for military intervention which acknowledged the validity of any intervention not authorized by the Security Council or General The Responsibility to Protect 54 Assembly. But that may still leave  circumstances when the Security Council fails to discharge what this Commission would regard as its responsibility to protect, in a conscience-shocking situation crying out for action. It is a real question in these circumstances where lies the most harm: in the damage to international order if the Security Council is bypassed or in the damage to that order if human beings are slaughtered while the Security Council stands by” (see point 6.37 in (1)).

This could have consequences for the UN: “if the Security Council fails to discharge its responsibility in conscience-shocking situations crying out for action, then it is unrealistic to expect that concerned states will rule out other means and forms of action to meet the gravity and urgency of these situations.”; and “if, following the failure of the Council to act, a military intervention is undertaken by an ad hoc coalition or individual state which does fully observe and respect all the criteria we have identified, and if that intervention is carried through successfully – and is seen by world public opinion to have been carried through successfully – then this may have enduringly serious consequences for the stature and credibility of the UN itself” (see points 6.39-6-40 in (1)). The Venezuelan situation would be building living history because we will soon know if any of these scenarios will be considered in the short term, with serious consequences for the responsibility of the UN Security Council.

On the other hand, we Venezuelans have a just cause: “In the Commission’s view, military intervention for human protection purposes is justified in two broad sets of circumstances, namely in order to halt or avert:

·         large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or

·         large scale “ethnic cleansing,” actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.

If either or both of these conditions are satisfied, it is our view that the “just cause”

component of the decision to intervene is amply satisfied” (see point 4.19 in (1)).

The deliberate action of the regime of Nicolás Maduro Moros, representing the Venezuelan State illegitimately, but at the end of the day representing the State, has caused great losses in human lives, making it a ‘just cause’ for the decision to intervene. The necessary evidence (according to point 4.29 in (1)) has already been provided by the United Nations High Commissioner for Human Rights published report on the observation of Human Rights in Venezuela, titled “Human rights violations and abuses in the context of protests in the Bolivarian Republic of Venezuela from 1 April to 31 July 2017” (see complete Report in http://www.ohchr.org/Documents/Countries/VE/HCReportVenezuela_1April-31July2017_EN.pdf).

This is not a discussion of terms, but rather a new concept of how the concept of sovereignty should be understood today in a globalized context of respect for human rights. To speak of “Humanitarian Intervention” takes us back to an obsolete concept of sovereignty. To speak of “Responsibility to Protect” leads us to discuss the responsibility of States to protect their citizens, and if these do not do so by action or omission, the obligation of the International Community to intervene for the purposes of human protection. Since there is evidence and just cause for Venezuela, it remains for those who are configured as the competent authority to act accordingly and without delay. I hope that by that time there will be a Venezuelan National Emergency Government with the capacity to act and conduct to give the presence and constitutional representativeness to that action.

Caracas, September 24, 2018

Twitter:@laguana

(1)   ONU-ICISS The responsability to protect – Report of the international Commission on intervention and State Sovereignity https://tinyurl.com/y8j8yao5, December de 2001.

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