R2P, or Responsibility to Protect, is based on the general sentiment that if there are atrocities taking place in a country, the community of nations can’t stand by and let it continue, but must intervene in some way to prevent it.  It got international recognition at a 2005 UNSummitwhere the UN General Assembly endorsed, in broad terms, some of the principles and ideas behind the doctrine.   Here, however, things get a little complicated.  The distinguished American scholar and critic Noam Chomsky explains the matter as follows:

The version of R2P adopted by the 2005 UN Summit affirms what had already been accepted, at most with a shift in emphasis, which was why it was so easily adopted.  There is, however, a radically different version of R2P presented by the 2001 Evans Commission, which adds a provision allowing “regional” organizations to act without Security Council authorization in their “areas of jurisdiction”…. [I]n practice, the Evans extension refers solely to NATO, which claims an extremely broad “area of jurisdiction.”  The Evans version of R2P simply reinstates the so-called right of humanitarian intervention, which has always been vigorously apposed by the non-aligned countries, the traditional victims.[15]

So, the version of R2P that the US is trying to push is the “Evans version”, i.e., the version that would allow the US, if it can gather together a cabal of nations to support it, to intervene anywhere in the world at any time, and do so under cover of “international law,” or at any rate the pretense that it is carrying out the “will” of the community of nations as a whole. It is easy enough to see the uses and benefits of this version as aUSforeign-policy tool.  But the problem (for theUS) is that there are fundamental contradictions between the scheme and international law, not to mention that a large number of nations, the “traditional victims,” will never allow it.

It is important to be as clear as possible as to the precise use or benefit that the Evans version has for long-term USforeign policy.  To repeat, it allows the US, if it can gather together a cabal of nations—a “coalition of the willing,” in a manner of speaking—to intervene anywhere in the world, and do so under cover of “international law,” or at any rate the pretense that it is only carrying out the “will” of the community of nations at large.  The “coalition of the willing” is fashioned on a project-by-project basis depending on the needs of each situation.  For instance, there would be one coalition for Iraq, another one for Libya, quite another for Sri Lanka(perhaps in the future,) and so on.  The point is that the specific coalition does not matter:  as long as there is some coalition, theUS can justify its actions.

The beauty of the system is that once the “coalition” is formed, its view, opinion or diktat that the particular intervention in question is justified becomes the sole basis for subsequent action.  At the same time, however, an impression is given, and indeed a certain legal imprimatur is obtained, that the whole world is backing the intervention.  The notion in traditional international law, that on important questions the community of nations comes together and discusses the merits of a case before taking or endorsing action, is completely contravened.  Certainly, there is “discussion,” but only for the sake of decorum and tradition:  the decision to intervene is taken quite independently of the results of any “discussions,” and indeed is carried through even if the whole world, other than the “coalition of the willing,” is opposed to it.

But that is appalling!  It is outrageous!  True.  From the point of view of the “traditional victims,” it is outrageous.  But if we want to understand what is going on with R2P, we have to look at it from the point of view of the people who think up these schemes.  From the point of view ofUS foreign policy, R2P—or rather, the Evans version—makes perfect rational sense:  What sole superpower wouldn’t want to have a mechanism that would allow it unrestrained and unhampered freedom of action anywhere in the world?

But the problem, as I have said, is that there is a fundamental conflict between the Evans version and the wishes, desires, and interests of a very large proportion of the world’s nations, the “traditional victims.”  The latter would never allow or approve of the former if given a choice, and they would have the core principles of traditional international law as an iron defense to back up their position.

If we put ourselves in the shoes of a hypothetical but rational USplanner, this is a straightforward policy-problem:  How do you do you make the Evans version prosper in the face of fundamental contradictions with traditional law?  The obvious and reasonable answer is that you have to weaken international law.  Since there is no way to do this brazenly or openly (without losing one’s own credibility, or of kindling the fury of the “traditional victims,” which latter, if united, is a force to be reckoned with), you have to do it surreptitiously.  So what do you do?  You do the only reasonable thing in the circumstances:  attack the core concepts of international law in a systematic and sneaky way, so as to denude those concepts of any real meaning or force.

This is the context in which we have to see the present resolution againstSri Lanka. Sri Lankais a “test case” in the sense that it allows theUSto extend its range in challenging key international law concepts such as “sovereignty,” “exhaustion of domestic remedies,” and so on.  In this regard, the following observation by Ambassador Kunanayakam, is highly relevant:

In her statement to the Human Rights Council, the US Under Secretary of State, Maria Otero, unilaterally outlined the values which, she said, would guide their work within the Council, totally disregarding the principles that the UN General Assembly has determined and which the USaccepted when taking its oath as member of the Council! “Cooperation”, which is embedded in the UN Charter and a duty incumbent on all States, is replaced with “dialogue”; “impartiality” and “non-selectivity” replaced with the vague and subjective values, “principle” and “truth”![16]

American diplomats—indeed, diplomats as a general rule—don’t use words loosely.  We can rest assured, meanwhile, that aUSUndersecretary of State is well aware of international law, particularly the UN Charter, not least because theUShelped draft it!  The shift to these new concepts then is deliberate and calculated.  What they are doing is building a record.  They are compiling precedents where core international law concepts are reinterpreted, and where they can show that the international community itself—including the “traditional victims”—by acts of omission or commission, endorsed the new interpretations.  It is all part of that steady effort to sap the life blood out of core international law concepts: to carve out their marrow and substance, until in the end nothing is left but the brittle, empty, and hollow shells.

Sri Lankaallows the USto take these “reinterpretations” to hitherto unexplored areas, namely, to give them the option of intervention in countries where there are no ongoing crisis, under the pretense of seeking “accountability” for alleged crimes committed in the past.  After this, there is really nothing more to accomplish:  the theoretical and legal framework for intervention is complete.  So that, in short, is the real significance of theUS’s fixation onSri Lanka.

To summarize, what is really at stake with this resolution (and no doubt the resolutions that are to come in the near future, perhaps as soon as the next HRC session) is the integrity and future viability of international law itself.  This is an issue that is relevant not just toSri Lanka, or even just to third world countries, the “traditional victims,” but to the West also, or at any rate those persons in the West, including theUnited States, who still feel international law has some value and purpose, and is worth saving.  Simply put, there has to be a renewed debate and discussion on R2P.  Someone has to put it to the nations of the world, clearly and unambiguously, whether they want to choose international law, or whether they want to choose R2P—not R2P in its general sentiment, or the 2005 UN Summit version—but the “Evans version”, or any other such extension which leaves wriggle-room for dubious interventions.

If the countries of the world decide they want to dump international law, then so be it.  But if they say they are for international law, they have to also make their position absolutely clear with respect to R2P, and they have to do it by positive law, by some sort of resolution, at the UN or at some other such international forum.  In my view, international law will once again be on solid ground only if there is such an explicit affirmation and re-dedication to its core principles.  Otherwise, the whole enterprise is sunk, and we might as well admit it.

Notes

[1] “The battle will have to be fought to the last minute,” The Permanent Mission of Sri Lanka to the United Nations office at Geneva, (www.lankamission,org) March 7, 2012

[2] Ibid

[3] “Pieris-Samarasinghe differ in Geneva as US talks tough”, Sri Lanka Sunday Times, March 4, 2012

[4] See, “Wikileaks:  David Miliband championed aid to Sri Lanka to win votes of Tamils in UK”  The Telegraph, January 22, 2012

[5] Martin Collacott, “Canada’s role in Tamil terror,” National Post, January 26, 2005

[6] “Tamil Diaspora,” V. Sivasupramaniam, www.sangam.org, (Association of Tamils of Sri Lanka in theUSA)

[7] S.L. Gunasekara, “Today it isSri Lanka, Who will it be tomorrow?”, Transcurrents, March 19, 2012

[8] Charita Fernando, “Rights Row,” Lanka Business Online, March 21, 2012

[9] Asian Tribune, “US aid toSri Lanka declined since 2005, now halted,”  July 24, 2011

[10] “Sri Lanka in catch-22 situation”, The Nation, March18, 2012

[11] Lloyd I Rudolph and Susanne Hoeber Rudolph, “The making of foreign policy forSouth Asia,” Economic and Political Weekly, February 25, 2006, political-science.uchicago.edu, p.705

[12] www.worldlatestnews.com, February 11, 2011

[13] “Wikileaks:  Sri Lanka’s new friends cannot compete with her old ones.”  Colombo Telegraph, March 26, 2012

[14] “The battle will have to be fought to the last minute,” (www.lankamission.org), March 7, 2012

[15] Noam Chomsky, “Kosovo,East Timor, R2P and Ian Williams,”  Foreign Policy in Focus, August 17, 2009

[16] “The battle will have to be fought to the last minute,” (www.Lankamission.org), March 7, 2012