The Canadian government has claimed credit for the UN's recent endorsement of the "responsibility to protect." But our diplomatic success has come at a substantial price. In the search for international consensus, the content was stripped out of the responsibility to protect, leaving the legal constraints on humanitarian intervention firmly in place.
Under international law, force may only be used in the face of an armed attack, or if the UN Security Council has authorized military action. In 1999, Canada and other NATO countries broke the law when they intervened -- properly -- on moral grounds to protect the Muslim population of Kosovo. The intervention took place without UN Security Council authorization, and over the strong objections of Russia, China and many developing countries.
After the war, then-foreign minister Lloyd Axworthy established an independent body -- the International Commission on Intervention and State Sovereignty -- and charged it with finding "some new common ground." The resulting report canvassed the possibility of unauthorized humanitarian interventions but concluded that, "as a matter of political reality, it would be impossible to find consensus ... around any set of proposals for military intervention which acknowledged the validity of any intervention not authorized by the Security Council or General Assembly."
At this point, the Canadian government had a choice: embark on a long and difficult effort to shift international opinion towards a right to unauthorized intervention, or work within the existing legal constraints. Prime Minister Paul Martin selected the second, less ambitious option.
In a speech to the UN General Assembly in September 2004, Martin advanced a watered-down version of the responsibility to protect that focused narrowly on generating political will to intervene among the 15 members of the Security Council. He urged the council to "establish new thresholds for when the international community judges that civilian populations face extreme threats" and stressed that "the responsibility to protect is not a licence for intervention; it is an international guarantor of political accountability."
In one fell swoop, the Canadian government conceded the point that had motivated the development of the responsibility to protect in the first place: that some mechanism should exist for interventions to prevent mass suffering where the Security Council is unable or unwilling to act. Unilaterally conceding your most important point is hardly the optimal way to commence negotiations, since the other side will invariably seek further concessions. Those concessions have come in the form of limitations on the kinds of humanitarian crises to which the responsibility to protect is to apply.
Last week's summit declaration limits the responsibility to protect to "genocide, war crimes, ethnic cleansing and crimes against humanity," even though there is nothing in the UN Charter to suggest such a limitation. The council has previously authorized humanitarian interventions for other purposes. It approved the use of force in 1992 to prevent a mass starvation in Somalia, and in 1994 to restore democracy after a military coup in Haiti.
The limitation of the responsibility to protect to a set list of atrocities creates the risk that fewer rather than more humanitarian interventions will now take place.
In any event, nobody expects the Security Council to treat whatever criteria it adopts as anything more than non-binding guidelines. The council is a political body that bases its decisions on diplomatic, political and economic concerns, and its decisions trump any conflicting rules of international law. In 1994, the situation in Rwanda would have met anyone's threshold for action, but nothing was done to prevent a genocide that every member of the council knew was taking place.
Since 2003, millions of people have been raped, displaced or killed by Sudanese soldiers acting in with the janjaweed, a mounted militia, in Darfur. The Security Council has failed to authorize military action to stop the atrocities, at least partly because China and Russia -- both of which wield veto power over council resolutions -- have invested heavily in the oilfields of southern Sudan.
Countries such as Canada, instead of intervening without authorization, have sought to shift the moral and political burden of acting onto the African Union -- an organization that insists that it will only act with the Sudanese government's co-operation and consent. The end result is that hundreds of thousands of innocent people are still being terrorized by their own government while the rest of the world stands by. As far as the responsibility to protect is concerned, it's nice to see made-in-Canada terminology in a UN declaration. But before celebrating last week's endorsement of the concept as a foreign policy success, shouldn't we ask how much protecting we've actually done?
Michael Byers teaches international law at the University of British Columbia. He wrote War Law: Understanding International Law and Armed Conflict.