PAST , PRESENT AND FUTURE OF THE “ RESPONSIBILITY TO PROTECT ” : A BUMPY JOURNEY Vítor

The aim of this article is to study the “Responsibility to Protect”, its evolution since 2000 and what can be expected for its future. Concurrently, the paper takes into account the need to protect populations, victims of certain types of aggression and to preserve the international order. Major criticisms of this doctrine are highlighted, as well as some of its impacts on the international community and, significantly, some of the difficulties that have arisen during its development – a process that has been controversial and troubled. Some of the main risks and uncertainties that affect its future are investigated, considering that a set of emerging countries who do not agree with the Western liberal order intends to be more active in international affairs. The fundamental argument is that the future of this doctrine might continue to be troubled and full of uncertainties. Thus, for RtoP to evolve in a favourable way, it will be necessary, on the one hand, that the members of the Security Council of the United Nations engage in genuine multilateral cooperation in order to safeguard the changes taking place in the international order; and, on the other hand, that the States consider such crimes to be an essential issue of international security and part of their interests.


Introduction
Despite the numerous examples of atrocious violence against innocent populations, it was probably during the 1990s, with the genocide in Rwanda in 1994 and approximately 8,000 Bosnians killed in Srebrenica in 1995, that the international community became truly aware of the need to discuss humanitarian intervention. 2There was also the intervention of the North Atlantic Treaty Organisation (NATO) in March 1999, which bombed the former Republic of Yugoslavia in order to protect the Albanian population in Kosovo from ethnic cleansing.At the time, NATO's intervention was considered "illegal but legitimate". 3Regarding the horrors committed, it was legitimate because it was needed and, therefore, morally justified.However, it was illegal in so far that the United Nations Security Council (UNSC) had not authorised it and consequently consisted of a violation of international law.These events have inspired debate, clarifying a whole range of issues related to the need to intervene in certain specific situations.This debate consolidated the doctrine of the Responsibility to Protect (RtoP), which aims to overcome all the controversy surrounding humanitarian intervention (Holzgrefe & Keohane, 2003;Welsh, 2006).The debate has involved States that argue in favour of intervention to end certain types of conflicts and others that block this type of action through political and legal arguments related to respecting State sovereignty.The fact that language has been changed in order to seek distance from the notion of "right to intervene" and to refer to a "responsibility to protect" is significant. 4  The purpose of this article is to analyse the evolution of RtoP in order to understand to what extent "the new norm of 'the responsibility to protect' will prove to be the solution" (Evans, 2008: 11) in preventing or avoiding such crimes and atrocities.Some of the 1 The translation of this article was funded by national funds through FCT -Fundação para a Ciência e a Tecnologia -as part of OBSERVARE project with the reference UID/CPO/04155/2013, with the aim of publishing Janus.net.Text translated by Thomas Rickard.In this study, humanitarian intervention is used essentially to refer to "the threat or use of force across borders by a State (or group of States), which aims to prevent or end widespread violations of the fundamental rights of individuals other than their own citizens, without the permission of the State within whose territory force is applied" (Holzgrefe & Keohane (eds.), 2003: 18).Thus, humanitarian intervention is a coercive act of protection that uses force with the intention of protecting fundamental rights.
3 Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned, Oxford University Press, 2000: 4. 4 The interpretation of the concept of sovereignty in terms of responsibility and, consequently, the "responsibility to protect" was initially proposed by Francis Deng (1993Deng ( , 1995) )  impacts of this doctrine in the international community are analysed and some risks and uncertainties that point to a strained future are considered.Given the different views related to the international order, and which have become more pronounced, the key argument is that the development of RtoP is fraught with uncertainties.Therefore, the doctrine of RtoP will only progress, particularly in terms of its implementation, through genuine multilateral cooperation of UNSC members and if States consider this type of crime as an essential issue of international security.
The starting point: the ICISS report 5   At the 54th session of the General Assembly of the United Nations in 1999, Kofi Annan, then Secretary-General of the United Nations, called for the reaching of a consensus on humanitarian intervention, resulting in the creation of the ICISS in September 2000 with the support of the government of Canada.The report, completed in December 2001, describes a mechanism of intervention envisaged in very specific cases of aggression, such as genocide, war crimes, crimes against humanity and ethnic cleansing.Furthermore, it details various associated responsibilities, separating them into the "responsibility to prevent", the "responsibility to react" and the "responsibility to rebuild".The concept that underlays these responsibilities is human security and it is based on the principle that intervention, including military intervention, is only legitimate when a State does not have the ability to end certain crimes that are about to occur (ICISS, 2001: 15-16).
The foremost intention is to create a resolution by diplomatic means as a way of implementing RtoP, avoiding military intervention (Pattison, 2015: 936) and having an organ, the UNSC, with the responsibility of seeking to foresee potential conflicts in order to avoid certain types of crimes, ideally without direct military intervention -unless it becomes absolutely inevitable or even desirable in preventing an escalation of violence.For this reason, the "responsibility to prevent" is the most important of them all and must always be carried to exhaustion before other options are considered (ICISS, 2001: xi).It was also essential to attenuate the importance of the military dimension in order to advance the debate in political terms, because excessive concentration on intervention would have raised major concerns for certain countries and led to greater opposition in discussions needed to reach consensus.
In regard to the "responsibility to react", the main difficulty lies in the tension between the respect for State sovereignty and the need to intervene.The report establishes six principles for military interventions based on the Just War Doctrine6 (ICISS, 2001: 32): 1 -right authority; 2 -just cause; 3 -right intention; 4 -last resort; 5 -proportional means; and 6 -reasonable prospects.
Concerning the "responsibility to rebuild", the report refers to a moral responsibility and need to have a strategic plan on how to proceed to reconstruction in the post-conflict phase, but without materialising it in terms of operationalisation (ICISS, 2001: 39-45).

Main criticisms of the ICISS report and RtoP
There are fundamentally three types of criticism: 1) those that consider the report as excessively ambitions; 2) those that, on the contrary, consider that its ambitions do not go far enough; 3) those that criticise its vague and ambiguous character.In the first, the international order in the post-Cold War is seen as very supportive of the liberal ideas of the West (and particularly of the USA) -countries that have been most favourable to intervention.This situation may lead to an attempt to morally legitimise certain Western practices, giving rise to "the convergence of morality and Realpolitik, whether expressed in the 'responsibility to protect' or the 'war against terrorism'" (Chandler, 2004: 75).Therefore, it is essentially to limit the rights of sovereignty and jurisdiction by giving it a more acceptable meaning.As a result, the predominance of these liberal theses of peace would be a further shift in the balance of power in favour of the West in the context of the international order, rather than a change in focus in relation to the issue of sovereign rights.For this reason, Chandler (2004: 64-65) considers that it is fundamentally about reformulating the "right to intervene" in a moral and ethical perspective that justifies and legitimises intervention whilst making it compatible with the sovereignty of States.However, sovereignty ends up being reduced.Despite supporting RtoP, Bellamy (2005) questions whether the doctrine is not actually a new "Trojan Horse" of the most powerful States.Others argue that RtoP allows some great powers to take advantage of certain practices and that the ICISS report "raises the spectre of a return to colonial habits and practices on the part of the major Western powers" (Ayoob, 2002: 85).The idea is that great powers could, or would tend to, intervene in some States to achieve their own foreign policy objectives based on humanitarian arguments.
The 2003 intervention in Iraq was considered by some as corroborating to these latter arguments.Nevertheless, it does not seem legitimate to make a link between the Iraq War and RtoP, since this intervention was justified by the fight against terrorism after the events of September 11 th 2001.In addition, several interventions had previously been made in which "the rhetoric of humanitarianism had been used most stridently in cases where the humanitarian motive was weakest" (Weiss, 2007: 37).However, this conflict exposed some of the more problematic issues generated by this type of military intervention, first of all regarding sending troops to intervene and how all the consequences that are associated with the post-military conflict phase are seen in the countries of origin.
Those who consider that the report's ambitions do not go far enough criticise the fact that intervention is only considered in certain types of extreme situations, which results from a compromise between those who, respectively, had a more comprehensive or restricted view on intervention (Weiss, 2004: 139).
Regarding the ambiguous and vague characteristics of the report's conclusions, it does not appear that such a report could be expected to be absolutely exhaustive and detailed.It was unable to articulate, in a coherent and innovative way, the different responsibilities -prevent and rebuild -in order to withdraw focus on the issue of military intervention and reduce opposition to the idea of RtoP.On the other hand, by giving too much responsibility to the UNSC in relation to the authorisation to intervene, it does not specify a solution for cases in which the body might have intractable problems (Bellamy, 2009: 62-63).To prevent such situations, the UNSC would need to become more efficient and be reformed, which would not be just an option but an imperative to establish RtoP (Etzioni, 2006: 80).One of the weaknesses of the report is the lack of clarity about how prevention would materialise (Roberts, 2003: 149).Bellamy (2009: 63) states that the same can be said about rebuilding, where Alley (2004: 159) emphasises that nothing is mentioned in relation to these interventions by institutions such as the World Bank and the International Monetary Fund.

The 2005 World Summit
Motivated by the attention that the "war on terror" attracted after the September 11 th attacks, the ICISS report really only began to have some impact on the international community between 2004 and 2005, but without unanimity amongst the different countries.Countries such as Canada, the United Kingdom and Germany strongly supported the report, whilst others, such as Argentina, Australia, Colombia, Croatia, New Zealand, Norway, Peru, the Republic of Ireland, Rwanda, the Republic of Korea, Sweden and Tanzania, only vaguely supported it.Asian countries and several permanent members of the UNSC have rejected the report.In this context, the position of Russia and China should be highlighted, motivated by the loss of power of permanent members of the UNSC, whilst the United States was against the commitment to use their military forces in situations where their interests are not at stake and decided to limit themselves to resolution condemnation (Welsh, 2006: 185).
It was largely due to the efforts of Kofi Annan, Secretary-General of the United Nations from 1997 to 2006, and particularly with the convening of the High-Level Panel on Threats, Challenges and Change (HLP) 7 , that RtoP was established as an "emerging norm", associated with a responsibility to protect that should be exercised by the UNSC (United Nations, 2004: paragraph 203).The HLP report recognises that there is a link between responsibility and sovereignty and presents a set of guidelines on the use of force and the responsibilities of the General Assembly of the United Nations and, in particular, the UNSC.
The recommendations of the Secretary-General of the United Nations, as set out in the 2004 report, were presented at the 2005 World Summit.This event marked a key moment, from a normative perspective, regarding RtoP because it was at this General Assembly of the United Nations that all countries unanimously accepted the notion of a responsibility to protect their populations from certain types of aggression.However, in order to achieve the desired consensus and result, the text approved at the 2005 World Summit differs substantially from the previous ones, particularly the ICISS report, being much less demanding.It is only through the inclusion of paragraphs 138 and 1398 , which specify that each State has a responsibility to protect its population but, alternatively, also the international community -according to the Chapters VI and VII of the Charter of the United Nations -that the subject became more relevant.These paragraphs demonstrate a common will to act on the crimes listed -but their character is generic.There is no specific reference to the use of force within and much less outside the UN, such as within regional organisations.The text is fundamentally normative and 7 United Nations (2004).Report of the Secretary-General's High-Level Panel on Threats, Challenges and Change.A More Secure World: Our Shared Responsibility.A/59/565, 2 nd December, New York.Hereinafter, referred to as the HLP.
ideological and its focus is on promoting and assisting States in implementing norms of behaviour that are consistent with human rights.There were also important concessions and simplifications of some crucial ideas in order to make progress (Bellamy, 2006: 155).It is also in this way that the terminology "Responsibility to Protect" could be included in paragraphs 138 and 139 of the final document.On the one hand, the fact that any intervention must be authorised by the UNSC implies that the scope of intervention is very limited and conditioned.In addition, the text does not even contain any obligation of military intervention.The argument underlying RtoP is fundamentally based on a logic of non-intervention, faithful to the principle of respect for sovereignty established in the UN Charter.Moreover, the permanent members of the UNSC do not lose any of their privileges and are able to stop intervention through their veto power.Nevertheless, the veto would not be used in cases of humanitarian emergency and when national interests are not at stake. 9 The 2005 World Summit achieved several of its objectives, notably with regard to the adoption of the principles underlying the ICISS report, intervention by the UNSC in certain circumstances and restrictions on the veto power of its permanent members (Bellamy, 2006: 153).However, there were commitments between the various parties involved that have consequences and the legitimacy to intervene outside the framework of the UNSC was severely limited.Wheeler (2005: 105) considered that there were reasons for a measured optimism regarding the capability of avoiding cases such as that of Rwanda.That is, it will be more difficult for members of the UNSC to ignore certain humanitarian situations, although, unless there is political will, many of the commitments made will have little effect.Differently, Weiss (2007: 127) considers that it was a step backwards "because humanitarian intervention has to be approved by the Security Council". 10Therefore, what RtoP actually means relates to that defined in the UN General Assembly Resolution A/RES/60/1 of 24 th October, which is much inferior to what the 2001 ICISS report contains.

The 2009 debate in the UN General Assembly and Ban Ki-moon's report
Since 2006, many countries have opposed RtoP for various reasons, some of which relate to the consequences of the invasion of Iraq in 2003 (Bellamy, 2011: 28-33).Hence, on 15 th July 2008 Ban Ki-moon (2008) provided a new impetus to RtoP by referring to its three pillars. 11  Following this speech and a three-day debate at the UN General Assembly in July 2009 -when Ban Ki-moon reinforced the idea that RtoP, which had been accepted by the States at the 2005 World Summit, is a non-negotiable commitment -the report Implementing the Responsibility to Protect (United Nations, 2009) was written in January 2009.This report and its findings do not change the characteristic of the crimes listed 9 Despite everything, it should be noted that this was not explicit in the final text of the 2005 World Summit.The expression used by Weiss is that the RtoP has become "RtoP lite".This comment follows other considerations noted above, in which the author stated that the ambitions of the RtoP did not go far enough.The first pillar refers to the responsibility of States to protect their populations against crimes referred to in RtoP; the second, to the responsibility of the international community to help States meet these prevention and protection obligations; and the third, to the commitment of decisive and timely action consistent with the UN Charter.The RtoP is based on these three pillars, according to the speech of the Secretary-General Ban Ki-moon on 15 th July 2008 in Berlin, organized by the Managing Global Insecurity and the Bertelsmann Foundation.See United Nations (2009).above, do not establish any sequence of implementation in relation to the three pillars and do not consider one pillar more important than another (United Nations, 2009: 2).In addition, it is based on previous works, but it is essentially defined by taking into account paragraphs 138 and 139 resulting from the 2005 World Summit in order to emphasise the idea that the conclusions of that summit are not renegotiable and thus reinforce what was previously agreed.Edward Luck, a Special Adviser to Ban Ki-moon, said that "for the UN and its Member States, the principle of a responsibility to protect relates to that contained in paragraphs 138 and 139 of the Outcome Document -nothing more and nothing less" (Bellamy, 2011: 33).

Recent Developments of the Doctrine and Practice of RtoP
Despite the attention RtoP has received, since 2005 the developments have been problematic and haphazard regarding the application of the doctrine, both in terms of prevention and reaction.This is despite the fact that there have been some cases of success, including examples such as Guinea and Kenya.However, there have been more cases in which the international community has not intervened to prevent humanitarian catastrophes and atrocities, such as the cases of Darfur and Sudan.Nevertheless, Bellamy (2015: 182) points out that "In the first ten years RtoP has emerged as an international norm.With only a small handful of exceptions, States accept that they have made a commitment to RtoP and agree on its fundamental components." The most recent case of a military intervention that received much attention is the 2011 intervention in Libya.The international community decided to intervene in a decisive way to stop an escalation of violence against the civilian population.This intervention had been considered, for some time, a case of success, if not the greater case of implementation of the RtoP and an example of the effectiveness of the UNSC in terms of decision-making at crucial moments.
Through the proposal submitted by the United Kingdom, France and Lebanon, with the support of the Arab League and the African Union, Resolution 1973 on an intervention in Libya was adopted by the UNSC on 17 th March 2011 with ten votes in favour, none against and five abstentions (China, Russia, India, Germany and Brazil).It should also be noted that on 26 th February 2011 the UNSC had already adopted Resolution 1970 related to the situation in Libya, which had a reference to the International Criminal Court and imposed an arms embargo on the Gaddafi regime.On 19 th March, the United States began air strikes, which NATO took control of on 31 st March. 12Since this intervention is largely documented and analysed (Hehir & Murray, 2013, Hehir & Pattison, 2016), the key issue is that, according to the understanding of a number of countries that voted in favour, or abstained, the objective of the Resolution 1973 was to protect the population against the aggressions of the Gaddafi regime.However, NATO interpreted the mandate much more widely and eventually acted as an opponent of the Libyan regime by assisting forces contrary to it.The result was the fall of Gaddafi on 20 th October 2011, when he was captured and killed by opponents who had benefited from NATO support.
The intervention in Libya was considered by many to be an excellent example of the application of RtoP, but its implementation was controversial and underlies the need for clearer implementation rules (Thakur, 2013: 61).Moreover, it is largely due to the interpretation of the mandate with its implementation through NATO intervention that the non-intervention in Syria can be explained.Countries such as Russia and China expressed their disagreement with the interpretation of the mandate for Libya and future decisions regarding interventions in 2011 and 2012 in Syria.It is also the ideal argument for critics of RtoP to try to discredit the doctrine (Morris, 2013(Morris, : 1265(Morris, -1266)).
Despite this, in 2011 Brazil presented, when it was one of the non-permanent members of the UNSC, a new notion entitled "Responsibility while protecting".The document reinforces the idea that matters of international peace and security are within the purview of the UNSC and considers that there is a need to improve the procedures for those responsible for controlling such matters.It also reinforces the need to pay more attention to the use of non-coercive methods, to have a more judicious use of force and to not cause more harm than good.In this way, Brazil intended to contribute to the doctrine, but also to position itself in relation to the P5 in a constructive and non-revisionist way insofar as the RwP is complementary to RtoP.Being positive in terms of promoting the debate has so far not led to a substantial advance in RtoP, which has been the subject of major concerns and objections mainly related to the use of force and its control (Stuenkel, 2016: 9-11).Therefore, these critical events, together with the current international political situation regarding the relationship between some permanent members of the UNSC, show that a new UNSC resolution on RtoP interventions will be hard to approve.However, the theme is still current, as stated by Seybolt (2008: 1) when he mentioned that "Once considered an aberration in international affairs, humanitarian intervention is now a compelling foreign policy issue".

What does the future hold for RtoP?
Recently, Bellamy (2015: 161) affirmed that "In the first decade, RtoP has moved from being a controversial and indeterminate concept seldom utilised by international society to a norm utilised almost habitually".But the reality may be different and the possibility of RtoP to continue its course in a troubled way is high.If, on the one hand, RtoP is generally accepted as the current reference when discussing and taking into account the need to protect victims of a particular type of violence -and, therefore, it is difficult to speak of humanitarian intervention outside the scope of RtoP -on the other hand, there are a number of issues that deserve attention and may hamper the development of RtoP.What happened in Libya might prevent other interventions from being authorised by the UNSC, since the situation after the intervention is considered by many to be worse in terms of international security as Gaddafi's Libya acted as a buffer zone in relation to southern extremist groups.Increasingly, countries pay more attention to the consequences of interventions and, fearing the consequences, they will tend to oppose them.
Progress in conceptual and principle terms has been considerable, and it should be noted that the doctrine of RtoP is perfectly consistent with the Westphalian international order.The fact that States share and follow mutually agreed norms and procedures generates a sense of legitimacy and sharing of common principles that is normatively important in the relationship between States (Welsh, 2004: 177;Franck, 1990: 24).Agreement through an organisation like the UN also has an added value (Claude, 1966: 374).
However, there are still debates and controversies regarding RtoP and interventions in general.In this sense, the problem is not only in relation to its implementation and operationalisation.The adoption of international norms often has underlying principles with which these emerging countries, mostly divergent from the liberal order, do not agree (Newman, 2013: 235-236).In terms of International Relations theory, this issue is also seen as part of the debate between pluralism and solidarism, regarding the potential of States in international society to share norms, rules and institutions (Buzan, 2004: 45). 13This is an important debate and, therefore, deserves attention.Essentially, this issue reveals different views about the international order.And the international order is evolving with the occurrence of power transitions, which may also have important consequences for the development and operationalisation of RtoP.It is important to point out that the United States has never been very receptive to the idea of having to commit military forces to interventions when their interests are not involved.The United States Congress has not officially declared war since World War II and the country has had some freedom to decide when to use military force in several countries.
In addition, international tensions and changes in the balance of power are also expected to increase as some countries, such as China, Russia and India, seek to have more influence in international affairs.What is at stake is a need for greater representation and reciprocity in decisions, mainly in the UNSC, since the way this body is currently composed does not reflect principles of representation, but it is fundamentally derived from a power-based policy that was determined in 1945 (Keohane, 2006: 60).China and Russia are permanent members of the UNSC, which is not the case for India and other countries that want to participate more actively.
There is also great concern about the selectivity with which RtoP is often implemented.In this respect, there are many cases.One is the crisis in Côte d'Ivoire in 2010 and 2011, where the forces of Alassane Ouattara, the presidential candidate who won the elections in 2010, were opposed to Laurent Gbagbo, the former president who had suffered electoral defeated.Despite the adoption of Resolution 1975 by the UNSC 14 and its preamble paragraph 9 condemning the series of violations and abuses of international law, along with odious violence against civilians, there was no intervention similar to the one in Libya. 15Many countries are dissatisfied with this selectivity and consider that it is actually about great Western powers acquiring a right to intervene according to their interests.
Moreover, "humanitarian considerations can play a part in motivating government to intervene, but States will not use force unless they judge that vital interests to be at stake" (Wheeler, 2000: 30). 16Thus, this will always depend on national interests, even for countries that feel obliged to intervene, which will tend to cause suspicion to others, regardless of whether one seeks to reconcile issues of humanitarian obligations, respect sovereignty, international order and use of force in appropriate terms (Wesley, 2005: 55).The intervention in Libya demonstrates that responses to crises that occur within States are largely dependent and determined by geopolitical interests (Hehir, 2013: 157-13 On this subject, see Mayall (2000).This author defines pluralism as the view that States, like individuals, can and do have differing interests and values, and consequently that international society is limited to the creation of a framework that will allow them to coexist in relative harmony (Mayall, 2000: 14).Similarly, he defines solidarism as the view that humanity is one, and that the task of diplomacy is to translate this latent or immanent solidarity of interests and values into reality" (Mayall, 2000: 14).).What this means and implies is that, regardless of all the other factors mentioned above, in order to intervene, States need to consider that their interests are at stake, if not for a matter of international security.

Conclusion
Although the evolution of the doctrine of RtoP has been, at least, troubled, significant progress has been made over the years.It is undeniable that States have different views of the international order and that many of them will always be difficult to reconcile.Therefore, based on how RtoP has evolved and without undermining all the progress regarding human rights, its future might continue to be filled with uncertainties.There are still various conceptual and principle issues that are difficult to resolve due to historical reasons.The consequences of the intervention in Libya and the current international situation should be taken into account, since they do not favour the development of RtoP.
Issues related to decision-making and controlling processes in international organisations, particularly in bodies such as the UNSC, should increasingly be on the agenda and have more importance.It is about preventing the evolution that has been observed in the international order in relation to the emergence of a set of countries and transitions of power that need to be taken into account.This issue is particularly relevant for countries that do not (or only partially) identify themselves with Western liberal values and have demonstrated disagreement over the dominance of RtoP by liberal Western countries.
Therefore, for the doctrine to be operationalised and implemented, a genuine multilateral cooperation by UNSC members, mostly the permanent members, is needed, which is not easy.Moreover, it will probably depend as well on States to consider concerns about such crimes as an essential issue of international security and as an integral part of their interests. 2 10

14
The adoption of Resolution 1975 related to Côte d'Ivoire took place on 30 th March 2011 and Resolution 1973 for Libya on 17 th March of the same year. 158 and served as inspiration for the report later produced by the International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Center, 2001), although such an interpretation was not explicitly mentioned in this report.