27 April 2015

Beyond Intervention: International Law and the Responsibility After Protecting

By Carsten Stahn, Visiting Professor, International Law.
Chair of International Criminal Law and Global Justice, Leiden University; Programme Director, Grotius Centre for International Legal Studies, The Hague.

15 years ago, the Brahimi Report argued for stronger links between peacekeeping and peacebuilding. Ten years ago, the United Nations (UN) endorsed the responsibility to protect. Since then, much thinking has gone into refining UN mandates. Protecting civilians has become a raison d’être of the UN. Peacebuilding is refined in order to prevent the failures of Rwanda or Srebrenica. The UN is aware of risks where there is no peace to keep and is at times more prepared to encourage robust protection, as illustrated in the Congo. There are some modest successes. Studies indicate that the UN has become better at peacekeeping and that such operations have a conflict-reducing effect or contribute positively to peacebuilding. But ending operations rightly remains a weak spot.

One of the hard lessons is that elections or democratic processes alone do not do the job. Few interventions over the past years have delivered what they promised: stability, better governance, social and economic advancement or rule of law. As UN Secretary-General Ban Ki-moon put it in June 2014: “When there is no clear path towards peace, crises will inevitably recur and peacekeeping operations are much more likely to struggle to meet their mandates.” The rise of the Islamic State, turmoil in Libya and enduring violence in Afghanistan illustrate the failures and unintended side effects of transformative interventions. These interventions have prompted reform in specific sectors, such as economic liberalisation, human rights, development and gender. They have limited threats from specific groups, such as Al Qaeda. But they have done little to build or sustain new state authority or help affected societies emerge from conflict, as initially imagined.

There is a strong tendency to extend the idea of protecting civilians from protection only in armed conflict to a justification for international responses. This extension requires caution. Better strategies are needed to avoid that such action recreate the same conditions that prompted the response. One key factor is a nuanced vision of what responsibility after protecting is. The idea that protection involves responsibilities that go beyond immediate protection is still in evolution. It may be grounded in three types of considerations: the “do no harm” principle, normative restraint and relationships of care.

Do no harm

The “do no harm” principle involves precautionary duties and a commitment to minimise harm. It has origins in just war theory and is an accepted standard of humanitarian action. It has direct implications for post-conflict planning and commitment. Its contours have been developed in the “Responsibility While Protecting Proposal” tabled by Brazil as a follow-up to the intervention in Libya. The proposal suggests four concrete ways to enhance protective action: better precaution and assessment of impact ex ante; greater alignment of means and ends of protection; proportionality of harm caused to the cause of action; and better procedures to monitor and assess mandate compliance. The operationalising of these criteria continues to pose challenges, both in terms of political will and methodology, i.e. the prediction of harm caused by asymmetric conflicts and the secondary consequences of intervention. But the proposal marks an important step in the provision of greater institutional attention to safeguards against abuse and the consideration of what happens after protection from the start of the intervention.

Normative restraint rather than norm entrepreneurship

The post-protection environment involves tensions that cannot be solved in the short term or through standardised solutions. In UN practice, it is more widely accepted that interventions should aim for solutions that are “good enough” in post-conflict settings rather than at “root-and-branch” reform. Protective action is more narrowly aimed at fostering structures that increase resilience towards violence rather than at nation-building. Universal norms do not always provide solutions to local problems. Legal regimes in some areas, such as justice (principle of legality), governance (political participation) or human rights (property, reparation) may require adjustment in order to accommodate the collective nature of violence or the specific tensions of transitions. The law should not silence these tensions but develop context-specific solutions, drawing on good practices.

Relationships of care

Many failures of protective action are linked to vaguely defined goals, premature exit or wrong choices in closure. After Kosovo, it was proposed to enhance follow-up through the responsibility to rebuild. This idea created fears and reservations concerning capacity, burden-sharing and liability of agents. An alternative, and more convincing, normative grounding for responsibility is the theory of care which focuses on the needs of the subject of protection.Many aspects of peacebuilding rely on relationships of care. Care is a foundational element of the justification of the exercise of public authority over foreign territory or persons. It is inherent in concepts of the law of armed force, such as necessity, proportionality and humanity. Duties of care in exit derive in particular from mandate coherence and preventive duties.

Existing operations provide a number of important lessons. The most essential one is that exit should be treated as a process rather than as an event. Negative peace, i.e. the absence of armed conflict, may not be enough. Self-sustaining peace may require measures to preserve partial gains or minimise losses, including control of spoilers of peace, follow-up action aimed at the stabilisation of political and economic conditions, ex post monitoring of peace arrangements, and the continued protection of witnesses and victims.

In existing responses, the responsibility that follows protecting is all too often neglected. Taking it more seriously may lead to better improvisation in future crises, or at least better forms of failure.

This article was published in Globe, the Graduate Institute Review.