No one aware of Darfur can fail to sympathize with the objectives of the International Commission on Intervention and State Sovereignty, whose report, "The Responsibility to Protect," was issued in 2001. The responsibility to protect (or "R2P") stemmed from understandable frustration with repeated failures to intervene in cases of mass atrocity. R2P sought to avoid the pitfalls (and ambiguities) of "humanitarian intervention." It deflected attention from the controverted "right" of states to intervene to the duties of all to protect people from avoidable catastrophe, and sought to avoid the limits of "intervention" by emphasizing duties to prevent, to react, and to rebuild. As the Commission saw it, R2P would apply when there was "serious and irreparable harm occurring to human beings, or imminently likely to occur." This would mostly involve large-scale loss of life - actual or apprehended, with genocidal intent or not - produced by deliberate state action or neglect, by state inability to act, or in a failed state situation. R2P would trigger the residual responsibility of the broader community when (1) a particular state was either unwilling or unable to fulfill its primary R2P, (2) a particular state was itself the perpetrator of the crimes or atrocities, or (3) "people living outside a particular state are directly threatened by actions taking place there." On the crucial question of who would be authorized to take military action in response, the Commission indicated that the Security Council was the first port of call but it did not exclude the possibility that R2P could ultimately be exercised by the General Assembly, regional organizations, or even coalitions of the willing. Mindful of the potential for unwarranted military action, the Commissioners stipulated that legitimate R2P invocations required "just cause," right intention, last resort, proportionality of means, and reasonable prospects of success.

The "norm entrepreneurs" behind R2P have been remarkably successful. R2P migrated within five years from academic idea to the December 2004 Report by the High-Level Panel on Threats, Challenges and Change, the UN Secretary-General's March 2005 Report "In Larger Freedom," the General Assembly's Resolution 60/1, and most recently, Security Council Resolution 1674 (April 2006), in which the Council "reaffirmed" states' "responsibility to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity." R2P was widely considered the only "unequivocal success" of the World Summit of September 2005, where it was endorsed by both John Bolton, then U.S. Ambassador to the UN, and the Non-Aligned Movement.

Instinct should warn us there must be something wrong with an idea that can be endorsed by such strange bedfellows. There is. R2P has appealed to so many because it suits too many cross-purposes. We should be cautious about turning it from political tool to legal principle.

Many of the recent invocations of R2P are at some distance from the original core concept -- principled exemption from legal liability for good Samaritans intent on saving lives. Scholars and policymakers have cited it in the following ways: as entailing a duty to protect national artifacts; to justify the 2003 invasion of Iraq (as part of a duty to protect people from tyrannical rule or to punish a regime for prior mass atrocities); to justify states' duties to protect their peoples from terrorist acts (including by implementing multiple multilateral counterterrorism treaties and the Security Council's various counterterrorist edicts) or from violations of their rights stemming from the war on terror (as Canadians have done); to include the duty to prevent states and non-state actors from acquiring WMDs; or even to justify the "cosmopolitan" use of preventive military force to promote democracy and the rule of law.

Many defenders of R2P are horrified by these applications by R2P's "false friends." But the expansive misuse of R2P is built into its schizophrenic soul. We should not blame a few bad apples for R2P's all-purpose misuse, any more than the United States can continue to suggest that a few 'bad apples' were responsible for the human rights horrors committed by U.S. agents in its war on terror.

Consider the elasticity and ambiguities of three core aspects of R2P:

(1) Redefined Sovereignty

R2P seeks to reorient the interpretation of the UN Charter's concept of sacrosanct domestic jurisdiction and territorial integrity to reflect "contemporary" values. While the originators of R2P may not like that it has been interpreted to mean that UN members now enjoy only "conditional sovereignty" and retain their ordinary rights under the Charter only so long as they fulfill their minimum human rights obligations and their international legal obligations toward fellow states, the scholars who make this point, such as Anne-Marie Slaughter, are being faithful to R2P's core concept. When Richard Haas, as director of policy planning at the U.S. State Department reduced R2P to the bumper-sticker slogan "abuse it and lose it," he was capturing R2P's premise that statehood has only "instrumental" and not "intrinsic" value.

R2P treats sovereignty as more hindrance than protection and the UN Charter less as sovereignty's guarantor than the guarantor of the rights of individuals. Why should we be surprised if this enfeebled sovereignty proves attractive to, among others, the largest military and economic power on the planet, which claims the power to deploy the "preemptive" use of force anywhere and everywhere?

(2) Expanded notion of what it means to "protect"

The Commission's original use of R2P emphasized the need to act to prevent imminent threats to life, as laid out above. Unlike later iterations of R2P, which tried to confine its militaristic deployment to the Security Council, the Commission left open the possibility that others could resort to R2P should the Council fail to act. This was consistent, after all, with R2P's emphasis on the needs of people over those of abstractions, namely governments or states. Despite the Commission's best intentions, it is highly doubtful that the same international community that has so far failed to agree on a comprehensive definition for "terrorism" will be any more able to define such elastic (and politically loaded) terms as "just cause," "right intention," or "reasonable prospects of success" - none of which are terms of art under international law. It is not reassuring that the authors of the United States' National Security Strategy, who invoked a doctrine of preemptive force, would probably find little fault with such inherently elastic pre-conditions.

Both R2P and the alleged doctrine of preemptive force rely on pre-Charter "just war" doctrine. At the heart of both is the bizarre but, history tells us, sadly irresistible idea that waging war, including "preventive" war, is sometimes necessary to protect the "dignity, justice, worth, and safety" of individuals. R2P is based on the proposition that while going to war is a mistake, it may be, as Gareth Evans argues, an "even bigger mistake" not to go to war "to protect fellow human beings from catastrophe when we should."

(3) Expanded notion of "security"

It should not surprise anyone that R2P has been used to justify counter-terrorist action as well as the need to protect nationals from counter-terrorist zealots. Although the Security Council and others have tried to limit R2P to action against the commission of recognized international crimes, as originally conceived, R2P enables reactions against "serious and irreparable harm . . . involving the large-scale loss of life" however this occurs, including as a result of a state's failure to act. Those who focus on the need to avert large scale loss of life can hardly complain if, under R2P, some states point out that such threats emerge as much from terrorists' actions as from genocide.

A concept born of the need to protect people at grave risk seems readily adaptable to the considerable and just as real risks posed by terrorists armed with WMDs, as it is to protect those at risk of being sent to secret detention camps or foreign lands where they face torture.

Two cheers for humanitarian intervention

Given the schizophrenias of R2P, the maligned limits of humanitarian intervention merit a second look. Unlike R2P, the emphasis on "humanitarian" in humanitarian intervention requires attention to on-going grave international crimes or perhaps those in peril because of natural disasters; "humanitarian" concerns would not ordinarily embrace past crimes, undemocratic regimes, or threatened terrorist acts.

Humanitarian intervention, as advocates of R2P have rightly pointed out, does little to threaten the traditional rights of sovereigns. On the contrary, the reference to "intervention" emphasizes its opposite: the ordinary rule of non-intervention. Humanitarian intervention does not suggest that by merely ratifying the UN Charter states sign away their sovereignty. Humanitarian intervention, however ambiguous its scope, was never conceived as anything but an add-on to the existing rules of international law, including the rules of self-defense. Unlike R2P, humanitarian intervention did not aspire to fundamentally re-orient a state-centric system of rules away from statecentricity.

If the 20th century's failures to intervene gave us R2P, the 21st century's endless "war" on terror and the quagmire in Iraq are forcing us to appreciate anew the merits of old-fashioned humanitarian intervention.

José E. Alvarez

Footnotes