Bogus Doctrine Designed to Undermine the Foundations of International Law
“Responsibility to Protect” is a bogus doctrine designed to undermine the very foundations of international law. It is law rewritten for the powerful “The structures and laws that underlie the application of R2P exempt the Great Power enforcers from the laws and rules that they enforce on the lesser powers.”
Both the Responsibility to Protect (R2P) and “Humanitarian Intervention” (HI) came into existence in the wake of the fall of the Soviet Union, which ended any obstruction that that contesting Great Power had placed on the ongoing power projection of the United States. In Western ideology, of course, the United States was containing the Soviets in the post-World War II years, but that was ideology. In reality the Soviet Union was always far less powerful than the United States, had weaker and less reliable allies, and was essentially on the defensive from 1945 till its demise in 1991.
The United States was aggressively on the march outward from 1945, with the steady spread of military bases across the globe, numerous interventions, large and small, on all continents, engaged in building the first truly global empire. The Soviet Union was an obstruction to U.S. expansion, with sufficient military power to constitute a modest containing force, but it also served U.S. propaganda as an alleged expansionist threat. With the death of the Soviet Union new threats were needed to justify the continuing and even accelerating U.S. projection of power, and they were forthcoming, from narco-terrorism to Al Qaeda to Saddam’s weapons of mass destruction to the terrorist threat that encompassed the entire planet earth and its outer space.
There was also a global security menace alleged, based on internal ethnic struggles and human rights violations, that supposedly threatened wider conflicts, as well as presenting the global community (and its policeman) with a moral dilemma and demand for intervention in the interests of humanity and justice. As noted, this morality surge occurred at a moment in history when the Soviet constraint was ended and the United States and its close allies were celebrating their triumph, when the socialist option had lost vitality, and when the West was thus freer to intervene.
This required over-riding the several hundred year old Westphalian core principle of international relations – that national sovereignty should be respected – which if adhered to would protect smaller and weaker countries from Great Power cross-border attacks. This rule was embodied in the UN Charter, and could be said to be the fundamental feature of that document, described by international law scholar Michael Mandel as ”the world’s constitution.” Over-riding this rule and Charter fundamental would clear the ground for R2P and HI, but it would also clear the ground for classic and straightforward aggression in pursuit of geopolitical interests, for which R2P and HI might supply a useful cover.
It is obvious that only the Great Powers can cross borders in the alleged interest of R2P and HI, a point that is recognized and taken as an entirely acceptable premise in every case in which they have been applied in recent years. The Great Powers are the only ones with the knowledge and material resources to do this ‘benevolent’ global social work. As NATO public relations official Jamie Shea explained in May 1999, when the question came up as to whether NATO personnel might be indicted for war crimes during NATO’s bombing war against Serbia, which seemed to follow from the letter of the International Criminal Tribunal for the Former Yugoslavia (ICTY) charter: NATO countries “organized” the ICTY and International Court of Justice, and NATO countries “fund these tribunals and support on a daily basis their activities. We are the upholders, not the violators, of international law.” This last is a contestable assertion, but Shea’s other points are clearly valid.
It is enlightening that when a group of independent lawyers submitted an extensive dossier in 1999 showing probable NATO violations of ICTY rules, after a long delay and following open pressure from NATO authorities, the anti-NATO claims were disallowed by the ICTY prosecutor on the ground that with only 496 documented killings of Serbs by NATO bombs “there is simply no evidence of a crime base” for indicting NATO, although the original May 1999 indictment of Milosevic involved a crime base of only 344 deaths. It is of similar interest that International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo declined to prosecute NATO officials for their attack on Iraq in 2003, despite over 249 requests for ICC action, on the ground that here also “the situation did not appear to meet the required threshold of the Statute.”
These two cases illustrate the fact that the structures and laws that underlie the application of R2P (and HI) exempt the Great Power enforcers from the laws and rules that they enforce on the lesser powers. It also exempts their friends and clients. This means that in the real world there is nobody responsible for protecting Iraqis or Afghanis from the United States or Palestinians from Israel. When U.S. Secretary of State Madeleine Albright acknowledged on national TV in 1996 that 500,000 Iraqi children may have died as a result of UN (but really U.S.) -imposed sanctions on Iraq, declaring that U.S. officials felt these deaths were “worth it,” there was no domestic or global reaction demanding the end of these sanctions and the application of R2P or HI on behalf of the victimized Iraqi population. Similarly there was no call for any R2P intervention on behalf of the Iraqis when the United States and Britain invaded Iraq in March 2003, with direct and induced civil war killings of perhaps a million more Iraqis.
When the Canadian-sponsored International Coalition for the Responsibility to Protect considered the Iraq war in relation to R2P, its authors concluded that abuses by Saddam Hussein within Iraq were not of a scope in 2003 to justify an invasion, but the coalition never even raised the question of whether the Iraqi people didn’t need protection from the invaders responsible for the death of vast numbers. They worked from the imperial premise that the Great Power enforcers, even when aggressing in violation of the UN Charter and killing hundreds of thousands, are exempt from R2P as well as the rule of law.
This works from the top of the global power structure on down; Bush, Cheney, Obama, John Kerry, Susan Rice, Samantha Power at the top, then on the way down we have Merkel, Cameron, and Hollande, then further down Ban Ki-Moon and Luis Moreno-Ocampo, and with their power base to be found in the corporate leadership and media. Ban Ki-Moon and his predecessor Kofi Annan have been open servants of the Great NATO Powers, to whom they owe their status and authority. Kofi Annan was an enthusiastic supporter of the NATO attack on Yugoslavia, a believer in the enforcement responsibility of the NATO powers, and keen on the institutionalization of R2P; and Ban Ki-Moon works in the same mode.
This same global power structure also means that ad hoc Tribunals will be formed and used against villains of choice, as well as international courts. Thus when the United States and its allies wanted to dismantle Yugoslavia and weaken Serbia, they were able to use the Security Council in 1993 to establish a tribunal, the ICTY, precisely for this service, which the ICTY carried out effectively. When they wanted to help their client Paul Kagame consolidate his dictatorship in Rwanda, they created a similar tribunal for this service, the ICTR. If these powers want to attack and bring about regime change in Libya, they can get the ICC to accuse Gaddaffi of war crimes speedily and without independent investigation of any charges, and based mainly on anticipations of civilian killings.
But as noted, the ICC couldn’t find any basis for action against the invaders of Iraq whose killings of civilians were large-scale and realized, not merely anticipated. There was, in fact, a major World Tribunal on Iraq organized to hear charges against the United States and its allies for their actions in Iraq, but it was privately organized and had a critical anti-war bent, so that although it held hearings in many countries and heard many prestigious witnesses, this tribunal was given negligible attention in the media. (Its final sessions and report in June 2005 were unmentioned in the major U.S, and British media.)
R2P fits snugly into this picture of service to an escalating imperial violence, with the United States and its enormous military-industrial complex engaged in a Global War on Terror and multiple wars, and its NATO arm steadily enlarging and embarked on “out of area” service, despite the ending of its supposed role of containing the Soviet Union. It conveniently premises that the threats that the world needs to address come from within countries, not from cross-border aggression in the traditional mode that the makers of the UN Charter considered of first importance. They are wrong: William Blum lists 35 cases where the United States overthrew governments between 1945 and 2001 (thus not even counting the war-making of George W. Bush and Barack Obama; Blum, Freeing the World to Death [Common Courage, 2005], chaps. 11 and 15)
In the real world, while R2P has a wonderful aura of benevolence, it will be put in play only at the instigation of the Great NATO Powers and it will therefore never be used in the interest of unworthy victims, defined as victims of the Great Powers or their clients (see Manufacturing Consent, chap 2, “Worthy and Unworthy Victims”). For example, it was never invoked to constrain Indonesian violence in its invasion and occupation of East Timor from 1975 onward, although this invasion-occupation accounted for an estimated 200,000 deaths on a population base of 800,000, thus exceeding the proportionate deaths under Pol Pot. In this case the United States gave the invasion a green light, gave further arms to the invaders, and protected them from any UN response. This is a case where the UN Charter was being violated and East Timorese desperately needed protection, but as the United States supported the invader no international response transpired.
It is enlightening and amusing to see that Gareth Evans has been perhaps the leading spokesperson in support of R2P.as an instrument of justice. Evans is a former Foreign Minister of Australia, author of a book on R2P, past president of the International Crisis Group, a co-founder of the International Commission on Intervention and State Sovereignty, and a participant in several reports and debates on R2P. Evans was the Foreign Minister of Australia during the years of Indonesia’s genocidal occupation of East Timor, and in that role Evans honored and feted Indonesian leaders and worked with them in sharing the stolen oil rights of East Timor. (See John Pilger, “East Timor: a lesson in why the poorest threaten the powerful,” April 5, 2012, pilger.com.) So Evans was really a collaborator in a major genocide. Can you imagine the media’s response to a non-NATO human rights campaign that used as spokesperson a Chinese official who had maintained friendly relations with Pol Pot during his most deadly years?
It is enlightening to see how Gareth Evans deals with the criteria for enforcing R2P. In answering questions on this subject at a UN General Assembly session on R2P, Evans appealed to common sense: R2P “defines itself,” and the crimes, including “ethnic cleansing,” are all “inherently conscience-shocking, and by their very nature of a scale that demands a response…It is really impossible to be precise about numbers here.”
Evans notes that sometimes modest numbers will suffice: “We remember starkly the horror of Srebrenica… [with only 8,000 deaths]. Was Racak with its 45 victims in Kosovo in ’99 sufficient to trigger the response that was triggered by the international community?” It was sufficient to trigger a response for the simple reason that it helped advance NATO’s ongoing program of dismantlement of Yugoslavia. But Evans dodges answering his own question. You may be sure that Evans does not ask or attempt to explain why there was no triggering of a response to East Timor with its 200,000 or Iraq’s 500,000 plus a million. The politicization of choices here is total, but Evans has apparently internalized the imperial perspective so completely that this huge double standard never reaches his consciousness. But the most interesting fact is that a man with such a record and such blatant bias can be accepted as an authority and his biased perspective is treated with respect.
It is interesting, also, to see how Evans never mentions Israel and Neither Palestine, where ethnic cleansing has been in active process for decades, works openly and is deeply resented by vast numbers across the globe. do other members of the power pyramid suggest Israel-Palestine as an area where consciences are shocked and the nature and scale of abuse demands a response from the “international community.” In order to obtain her U.N. Ambassadorship, Samantha Power thought it was necessary to go before a group of pro-Israel U.S. citizens and assure them, with tears flowing, that she regretted any past suggestions that AIPAC was powerful and that its influence had to be over-ridden for developing a U.S.-interest policy toward Israel and Palestine. She pledged a devotion to Israel’s national security. The world will wait a long time for Power and her bosses to support R2P’s application to ethnic cleansing in Palestine
In sum, the international power structure in the post-Soviet world has worsened global inequality and at the same time increased Great Power interventionism and literal aggression. The increased militarism may have contributed to the growing inequality, but it is also designed and serves to facilitate pacification at home as well as abroad. In this context, R2P and HI are understandable developments, providing a moral cover for actions that would repel many people and constitute a violation of international law if viewed in a cold light. R2P puts aggression in a benevolent light and thus serves as its useful instrument. In short, it is a cynical fraud and a constitution (UN Charter)-buster.
Edward S. Herman is a Professor Emeritus of Finance at the Wharton School, University of Pennsylvania. He has written extensively on economics, political economy, foreign policy, and media analysis. Among his books are The Political Economy of Human Rights (2 vols, with Noam Chomsky, South End Press, 1979); Corporate Control, Corporate Power (Cambridge University Press, 1981); The “Terrorism” Industry (with Gerry O’Sullivan, Pantheon, 1990); The Myth of the Liberal Media: An Edward Herman Reader (Peter Lang, 1999); and Manufacturing Consent (with Noam Chomsky, Pantheon, 1988 and 2002).