Responsibility to Protect (RtoP): The Future Implementation in the Southeast Asia Region

Responsibility to Protect (RtoP): The Future Implementation
in the Southeast Asia Region
(This article has been published in "Jurnal Departemen Luar Negeri" edisi tahun 2009)

Responsibility to Protect (RtoP hereafter) is the responsibility of state to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity . The conceptual foundation of RtoP can be traced from the work done by Francis Deng and his colleagues in 1990s and later to the 2001 International Commission on Intervention and State Sovereignty . In his work, Deng asserts that sovereignty can no longer be seen as a protection against interference, but as a charge of responsibility where the state is accountable to both domestic and external constituencies. Responsibility can be exercised by states over their population and by other states in assistance to their fellow sovereigns.

Further, heads of state and government endorsed the concept and principle of RtoP in the World Summit 2005 as stipulated in the paragraph 138 and 139 of the World Summit Outcome document which say as follows :

“138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out”.

According to the UN Secretary-General, Ban Ki-moon, RtoP rests on three pillar strategy :

1) The responsibility of each state to protect its own population from genocide, war crimes, ethnic cleansing and crimes against humanity, and from their incitement;

2) The commitment of the international community to assist states in meeting their obligations;

3) The responsibility of United Nations Member States to respond in a timely and decisive manner when a state is manifestly failing to provide such protection.

The strategy stresses the value of prevention and, when it fails, of early and flexible response tailored to the specific circumstances of each case. There is no set sequence to be followed from one pillar to another, nor is it assumed that one is more important than another. The structure of the responsibility to protect relies on the equal size, strength and viability of each of its supporting pillars. The means to implement Rtop varies ranging from diplomatic, humanitarian and other peaceful means (such as capacity building), pressure, sanction and finally military intervention under the Chapter VII of the UN.

The provisions of paragraphs 138 and 139 of the Summit Outcome are also firmly anchored in well-established principles of international law. Under conventional and customary international law, states have the obligations to prevent and punish genocide, war crimes and crimes against humanity. The actions under paragraphs 138 and 139 of the Summit Outcome are to be undertaken only in conformity with the provisions, purposes and principles of the Charter of the United Nations. In that regard, the responsibility to protect does not alter, indeed reinforce, the legal obligations of states to refrain from the use of force except in conformity with the Charter.

The 2005 World Summit Outcome is the point of departure for understanding and implementation of RtoP. R2P constitutes a significant normative shift that focuses on the victim of atrocities, in which states, singularly, and the international community, collectively, are responsible for developing national and international measures to protect populations from grave and unconscionable harms. The basic premise of R2P is that each state bears the responsibility to protect its citizenry from mass atrocities (genocide, ethnic cleansing, war crimes and crimes against humanity). In the case that a state is either manifestly unable or unwilling to discharge its responsibility to safeguard its population, the responsibility to protect beleaguered populations lies with the international community.

Though RtoP has become the political commitment of all heads of state and government after the World Summit in 2005, the implementation of its concept produced mixed reaction from different members of the UN. The developing countries, as reflected by the position of the Non-Aligned Movement and G-77 fear that collective prevention activity will be manipulated by one and more powerful states to intervene in other countries’ domestic affairs in the direction favorable to their interest in the name of humanitarian intervention. Meanwhile, the OECD countries fear that any systematic commitment to collective prevention activities will trigger a very large, uncontrollable financial burden. Meanwhile, the RtoP concept and principle get early acceptance from African countries as stipulated in the Constitutive Acts of the African Union in its article 4 (h) which authorize intervention in grave circumstances such as genocide, war crimes and crimes against humanity .

It seems that the mixed reaction to the RtoP was not caused by the doubt over its principle but rather on the lack of clarity upon its possible implementation. Countries still need time to discuss further in the UN forum to find agreement on the modalities of implementation of the RtoP concept in such a way that it can protect the civilian from the mass atrocities and while at the same time it will not be misused as a pretext to undermine the sovereignty, independence and territorial integrity of states especially the weaker ones.

A form of RtoP practice has taken place in the 15-20 places around the world. The involvement in peacekeeping missions with a civilian protection component is involvement in RtoP. Beyond peacekeeping, the international community is presently employing q wide range of diplomatic and humanitarian measures to address violent conflict which can be accounted to upholding the RtoP principle. One of the example is the RtoP is the international response to the situation in Kenya. The rapid response to the conflict in Kenya demonstrates the international consensus that an escalating crisis is not wholly the internal concern of the state. The UN engaged in at the highest political levels, with the Security Council condemning the violence and the Secretary General offering assistance and mediation in conjunction and consultation with concerned African leaders. The international community sought to respond early and effectively to bolster security and protect human rights and to assist Kenya in developing non-violent methods of managing the mounting tensions. Archbishop Desmond Tutu said that what had been seen in Kenya is action on a fundamental principle of responsibility to protect .

Promoting RtoP in the Southeast Asia region

RtoP and humanitarian intervention are fairly new concept in the Southeast Asia region. The novelty of the ideas and their corresponding principle are generally taken with some degree of wariness because they challenge traditional conception of sovereignty. National sovereignty and independence are principle that is still sacred in the region.

Most of the reaction to the possible intervention from the external actors could traced from the hard and bitter experience of most Southeast Asian countries in fighting the colonial power to gain their independence.However, all countries in the region accept the principle of RtoP or at least in their official statements. During the World Summit in 2005, no country expressed their objection to the RtoP principles .

Promoting RtoP in the Southeast Asia region is daunting task and very challenging and has to consider several factors, among others, the changing regional context of the Southeast Asia and the enabling in the region .

The current context of in the Southeast Asia region

As has been mentioned, there is still a strong sense of cautiousness in the region related to the term ‘intervention’. It is important to note that the region’s reservations about the R2P relate not to the principle of the RtoP, but to the possibility for the principle to be abused to justify expanded coercive interference or unilateral intervention not properly authorized by the UN Security Council. Even in the Security Council itself no one can guarantee that the matter will not be politicized by its members especially the permanent ones (P5).

Nevertheless, there are some part of societies in the region who support the principle and implementation of RtoP in Southeast Asia. For them, the application of the traditional notion of state sovereignty in the region should be redefined. This is because Southeast Asia has had its share of humanitarian crisis situations in Cambodia in mid-1970s, East Timor in the late 1990s, as well as in the recent cyclone Nargis in 2008. These cases, along with similar situations in other parts of the globe, have become compelling issues that need to be confronted by national leaders and non-state actors in the region.

In a more globalized world, states cannot anymore invoke absolute sovereignty even as security threats spill over beyond borders of countries. Globalization, notwithstanding its negative impacts, also means that states can no longer keep their people confined from the outside world. The region’s governments also take a broader view that populations are also insecure when they are unable to achieve the Millennium development Goal. As such, Southeast Asian governments are generally supportive of the concept of RtoP.

The region also undergoes progress in the level of political openness and democratic space. The transition from authoritarian to more democratic regimes in the Philippines and Indonesia since 1986 and 1998, respectively, has contributed to the growth of the democratic movements not only in these countries but also in less open countries in the region. Greater openness at the domestic level means more opportunities for communication and exchange of ideas among civil society groups not only within these countries but across the region as well.

The leaders in the region also are in view on the need for constructive engagement among countries in the region in the domestic affairs when it has beyond border effects. How the countries in the region to address the haze problem, situation of human rights in Myanmar and the conflict in the southern Thailand were among the examples that domestic interference in other countries in the region is not completely taboo anymore, although the non interference principle is still enshrined in the ASEAN Charter that has been ratified.

Given this, it is possible to deepen consensus on the R2P among the Southeast Asian. The key lies in demonstrating how a commitment to the R2P could strengthen sovereignty and assists states to accomplish their core goals, such as economic development and poverty alleviation

The prospects for advancing R2P principles and norms would also depend on the level of awareness of all stakeholders on the importance of RtoP. To a large extent, most of the stakeholders have artificial understanding on what R2P is about. What is really needed is the emergence of R2P champions and advocates, and the effort to build constituencies in Southeast Asia. To do this needs some enabling factors that include growing acceptability of human security in national and regional security discourses and the culture of norm building in ASEAN.

The enabling environment : Improved attention on the aspect of Human Security and Culture of Norm Building in ASEAN

Human security issues have become more prominent in national and regional security discourses in Southeast Asia. Since the launching of the Millennium Development Goals by the United Nations, countries in the region have become more aware of the need to focus more on people in the development process. The increased focus on the people and their security is also reflected in several ASEAN documents. The idea of building an ASEAN Community which composed of three pillars (security, economic, and socio-cultural communities) have given emphasis on the aspect of human security

The culture of norm building in ASEAN can be conducive for the promotion of R2P principles in the region. ASEAN already has a number of norms and values related to peace and conflict prevention that could be the starting point for R2P promotion. One of the pillar of ASEAN Community, the ASEAN Political Security Community or APSC, basically attempts to contribute to the building of a “just, democratic, and harmonious environment” in the region through the formulation of an ASEAN Charter, ASEAN Mutual Legal Assistance Agreement, as well as the study of a possible ASEAN extradition treaty. These norm building efforts could lead to increased institutionalization of ASEAN and, ultimately, to a more rule-based community of Southeast Asian nations. The formulation of an ASEAN Charter, for example, could incorporate norms related to human security and conflict prevention, while an ASEAN extradition treaty could potentially contribute to harmonization of national laws with respect to criminal acts, including crimes against humanity. It is in this area where the promotion of some of the R2P principles in Southeast Asia becomes even more important.

D. Conclusion

Though countries in the Southeast Asia region officially still stick on the traditional notion of state sovereignty, there is a degree of openness to the RtoP in Southeast Asia. The willingness of the Myanmar government to accept internal assistance to address the Cyclone Nargis problems albeith prior international pressure, constitutes acceptance to the RtoP principle. For Indonesia, RtoP concept has been implemented in the UU no. 39 Tahun 2009 on Human Rights and UU No. 26 Tahun 2000 on Human Rights Court Indonesia also has a plan to ratify the Rome State on International Criminal Court which in much in line with RtoP principle.

Regional consensus on the principle is possible but much work needs to be done on the way in which the principle is articulated and advanced to take better account of the region’s concerns and priorities. R2P should be applied in a manner consistent with the principle of non-interference. R2P should be carefully disassociated from any potential expansion of the international community’s scope for coercive interference in the domestic affairs of states beyond the UN Charter. The international engagement to implement the RtoP should be conducted on the basis of cooperation and the consents of states in the region and the promotion of RtoP should not be externally imposed.

The RtoP principle should be related more closely to the legitimate priorities of countries in the region especially in the field of development and capacity building. The RtoP engagement should proceed with due regard for the attitudes and preferences of the regional organization in the region (ASEAN) to devolve the ownership of the principle. In order to mobilize Southeast Asian support for the R2P, the priorities for RtoP implementation should be focused on the R2P’s first pillar by developing the domestic legal framework for state responsibility to protect its population and second pillars by the assistance from the international community in helping states in the region to build capacity to protect.

References

Report of the Secretary General ,”Implementing the Responsibility to Protect”, January 12, 2009, Document of General Assembly, Sixty-Third Session

Francis Deng, Sadikiel Kimara, Terrence Lyion, Donald Rothchild and William Zastman, “Sovereignty as Responsibility: Conflict Management in Africa”, Brooking Institute, Washigton DC (1996)
International Commission on Intervention and State Sovereignty: the Responsibility to Protect, Ottawa (2001)

Word Summit Outcome Document, UN Secretariat

Report of the Secretary General, 2009

“The Common African Position on the Proposed Reform of the United Nation: Ezulwini Consensus”, the 7th Extraordinary Session of the Executive Council of the African Union, March 2005

Desmond Tutu,” Taking the Responsibility to protect.”International Herald Tribune, 20 February 2008

“ Responsibility to Protect in the Asia Pacific Region”, Centre of the Responsibility to Protect in Asia and the Pacific, Bangkok, 2006.

“Responsibility to Protect in the Asia Pacific Region”, Centre of the Responsibility to Protect in Asia and the Pacific, Bangkok, 2006.