The Responsibility to Protect in Ukraine: “Another False Success” or an Imperfect but Ongoing Response?
Phil Orchard, replying to Aidan Hehir’s recent blog post for ECR2P, writes that core tenets of the Responsibility to Protect have been evident in the international community’s response to events in Ukraine.
Aidan Hehir has provocatively argued that RtoP has had “no added value” in response to Russia’s invasion of Ukraine, noting that it has not been invoked in key moments of the crisis and that it has failed to stop states in recent years from engaging in “egregious violence.” But there are three issues with this type of argument.
First, it comes from a critique of RtoP as a “perfect instrument” – it should function fully at all times, and when it doesn’t, that demonstrates it has failed. But advocates of R2P have long been aware that it will never function perfectly, especially in situations (as with Ukraine) where the interests of one of the permanent members of the UN Security Council are at stake. The Council, after all, is the body that is supposed to take action under Pillar 3 of the RtoP when a state is “manifestly failing” its responsibility. Because of the Russian veto, it hasn’t been able to act directly. I would very much wish we had seen more action from the Council, but the constraints placed on it by the UN Charter makes it unable to respond in this situation (though Ukraine has sought to challenge Russia’s role on the Council). But it has actually followed one of the routes suggested in the original International Commission on Intervention and State Sovereignty’s report from 2001: referring the matter to an UN General Assembly Emergency Special Session under the “uniting for peace” procedure which passed a resolution demanding that Russia immediately withdraw (and that 141 countries voted in favour for, and only 5 against).
Now, of course the quick response to this can be that nothing in this process mentioned the RtoP. But, this, too, seems to reflect a narrowing of what the Responsibility to Protect doctrine is actually about- as I’ve argued elsewhere, the RtoP effectively links together a set of existing norms around atrocity crimes -genocide, war crimes, crimes against humanity and ethnic cleansing, which is not defined in international law- and adds norms that create distinct responsibility for states to protect their own populations and for the international community to similarly do so, as well as creating a distinct norm reflecting the authority of the UN Security Council – and only the Council – to respond.
The vetoed UN Security Council resolution may not have mentioned the RtoP, but it specially condemned “all violations of international humanitarian law and violations and abuses of human rights.” Is this not reflecting an awareness that war crimes are wrong? The UN General Assembly actually introduced even stronger language not only condemning “all violations of international of international humanitarian law and violations and abuses of human rights” but also specifically signaling out protections for medical personnel, hospitals, and other medical facilities. Thus, this appears to be the UN system clearly recognizing violations of international humanitarian law.
And other international steps are also underway. These include the Prosecutor of the International Criminal Court having announced an investigation, noting that he is “satisfied that there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine.” There is the case before the International Court of Justice focusing on Ukraine’s argument that the Russian invasion is based on a “grotesque lie” that genocide was occurring in Ukraine. And there is the UN Human Rights Council’s move to establish an Independent International Commission of Inquiry to investigate “all alleged violations and abuses of human rights and violations of international humanitarian law, and related crimes.” Each of these reflects an acknowledgement that Russia has undertaken atrocity crimes: how does this not also effect some power, even if indirectly, of the RtoP?
This also reflects a second issue in terms of the argument Hehir makes: if RtoP is not a leash because states do not fear “international opprobrium they would incur for violating RtoP” then, can’t the same critique be made of the Geneva Conventions themselves? These are frequently violated, with too few international responses. Russia certainly engaged in a war crime when it launched an air strike against a maternity hospital in Mariupol on March 10th but this also reflected a pattern of behaviour it had created in bombing hospitals in Syria with few consequences.
The third and final issue is a question of how important RtoP is vis-à-vis other international norms. Obviously, we would like the response to atrocity crimes to always figure first in any international debate. But, in this case, the initial focus was clearly on Russia’s flagrant violation of Article 2(4) of the UN Charter- that “all Members shall refrain in their international relations from the threat or use of forced against the territorial integrity or political independence of any state…” In this case, the failure to invoke RtoP directly may reflect a rank ordering of norms by states, privileging this violation over RtoP. But this also makes sense- if they are able to stop Russia’s illegal invasion of Ukraine, then that will also stop atrocity crimes from being committed.
I am not trying to suggest that RtoP has functioned well in this case- far from it. But the failure to specifically invoke RtoP – the failure of states to literally say “this is a violation of the Responsibility to Protect” discounts the range of other actions that have already occurred and will occur in future.
Phil Orchard is Associate Professor of International Relations at the University of Wollongong and the Co-Director of the UOW Future of Rights Centre. His books include 'Protecting the Internally Displaced: Rhetoric and Reality and A Right to Flee: Refugees, States, and the Construction of International Cooperation'. He is the co-editor, with Alexander Betts, of 'Implementation in World Politics: How Norms Change Practice' (Oxford University Press, 2014), with Charles Hunt, of 'Constructing the Responsibility to Protect: Contestation and Consolidation' (Routledge, 2020) and, with Antje Wiener, of the forthcoming 'Contesting the World: Norm Research in Theory and Practice'.
Image credit: Human Rights Council to establish Commission of Inquiry on Ukraine.
If you are interested in submitting a blog post for the ECR2P’s Fresh Perspectives series, then please contact Dr Richard Illingworth by Email (r.illingworth@leeds.ac.uk) or Twitter (@RJI95).