Abstract
Paragraph 139 of the World Summit Outcome Document (WSOD) stipulates that the international community is prepared to respond on a ‘case-by-case basis’ in a ‘timely and decisive manner’ when ‘national authorities are manifestly failing to protect their populations’ from genocide, war crimes, ethnic cleansing and crimes against humanity. But what constitutes a ‘manifest failing’? Ten years on from the WSOD, it is evident that there is a large amount of ambiguity and inconsistency in how this term is interpreted and applied. This article highlights the confusion and complexity within the discourse prior to putting forward five policy prescriptions. In so doing, it argues that a more informed understanding of the concept will, primarily, rectify the problems of ambiguity and inconsistency and, secondarily, may help address fears of Great Power manipulation and assist in delegitimising misuse of the R2P.
Keywords
The year 2015 marks the tenth anniversary of the Responsibility to Protect (R2P) agreement as put forward in paragraphs 138, 139 and 140 of the World Summit Outcome Document (WSOD).
1
The R2P sets out what is now commonly known as the ‘three pillars’ regarding, ‘pillar one, the protection responsibilities of the state’, ‘pillar two, international assistance and capacity building’, and ‘pillar three, timely and decisive response’.
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This article analyses the third pillar which remains the most controversial as it allows the United Nations (UN) Security Council to use a wide range of coercive and non-coercive response measures under Chapters VI, VII and VIII of the UN Charter.
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More specifically, the focus here is on the ambiguity and inconsistency that surrounds the requirement of a ‘manifest failing’. To explain, paragraph 139 of the WSOD states that Member States are: prepared to take collective action, in a timely and decisive manner, through the Security Council…on a case-by-case basis… should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.
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Accordingly, as Ban Ki-moon explains, the threshold for a pillar three response is higher than that of a pillar two action (state assistance), precisely because the latter requires the identification of a ‘manifest failing’. 5 But what constitutes a ‘manifest failing’?
As will be discussed, the phrase was introduced in the final stage of the WSOD drafting process in order to replace the terminology ‘unable or unwilling’, but paragraph 139 offers little guidance on what constitutes a ‘manifest failing’. Despite this, it has remained a prominent part of seminal UN R2P reports. For example, the UN Secretary-General used the phrase nine times in his 2009 report ‘implementing the responsibility to protect’, five times in his 2013 report ‘timely and decisive response’, while Member State representatives used it 12 times in the 2009 UN General Assembly plenary debate on the R2P. 6 It also features in policy reports such as the UN Association–United Kingdom (UNA-UK) reports written by Bellamy (2013) and Ralph (2014); both use the phrase five times. 7 Yet while the requirement of a ‘manifest failing’ is often invoked as a cornerstone for any pillar three action, very little work has been done on this concept (with the notable exception of Rosenberg, Strauss and Labonte 8 ). As Labonte explains, ‘[r]esearch on the concept of manifest failure and its relationship to R2P is relatively new, even within the burgeoning literature that now exists on R2P itself’. 9 As a result, little progress has been made over the last 10 years to clarify the ambiguity which surrounds the requirement of a ‘manifest failing’. Significantly, this has fuelled recent concerns that pro-interventionist states may manipulate the ambiguity which has led to prominent calls that favour establishing criteria that help the UN Security Council to identify when a state is failing to protect its population from the four crimes. 10
A secondary interrelated problem emerges when one considers the inconsistency evident in the R2P discourse. Some scholars and policy-makers use the two phrases ‘manifest failing’ and ‘unable or unwilling’ interchangeably as though they mean the same thing. In contrast, others claim the former sets a higher threshold for pillar three action than the latter while a few view ‘manifest failing’ as more objective than ‘unable or unwilling’. Muddying the water further, the 2010 US, and 2008 UK National Security Strategy’s endorsement of the R2P uses the phrase ‘unable or unwilling’ despite the fact that it does not appear in the WSOD. 11 Regarding the latter, this article will explain that the UK language was changed intentionally as the drafters believe that ‘manifest failing’ does not capture the element of judgement embodied in the phrase ‘unable or unwilling’. Since then, however, the United Kingdom has been inconsistent in its use of the phrase. Although, as stated above, some work has been done on the meaning of ‘manifest failing’, this is the first study to highlight the variety of phrases and interpretations evident in the discourse. Notably, these only add to the confusion and complexity that surrounds the phrase ‘manifest failing’ and it is important that scholars and policy-makers pause and consider what terminology they are using and why.
It is important to clarify what this article is not claiming. The suggestion here is not that UN Security Council talks break down because the permanent five Member States cannot agree on whether a ‘manifest failing’ is taking place or that it creates a new limit on the UN Charter. 12 However, it is clear that the UN Security Council appeals to some sort of threshold when judging whether the state in question is failing to fulfil its R2P. Normatively, therefore, if states are going to pursue a pillar three action, then according to the WSOD agreement, they should agree that a ‘manifest failing’ is taking place. This is why Member State representatives have placed this requirement at the heart of any pillar three decision-making process. For example, Brazil’s Permanent Representative to the UN, Mrs Viotti, stated, ‘Only if and when a State manifestly fails to fulfil such obligation may the international community take collective action in accordance with the Charter’. 13 To put this into context, let us consider Russia’s action in the Ukraine in 2014. As Mark Kersten explains, ‘R2P is also a language and as such is a double-edged sword, susceptible to being used and abused’, which, he argues, is exactly what Putin did as he invoked ‘R2P-type rhetoric’. 14 For Kersten, this ‘also brings to light the continuing challenge of clarifying what exactly R2P is – and what it isn’t’. 15 A small part of which, this author argues, is clarifying the ‘manifest failing’ requirement. 16 Of course, the clearest violation was that Russia did not work through the UN, however, a secondary issue is that Russia needed to show how Ukraine was ‘manifestly failing’ to protect Russian citizens on Ukrainian territory. This returns us to the idea that we need a more informed understanding of a ‘manifest failing’ not just to aid R2P action but to also help delegitimise any abuse of the concept.
The article is structured in a twofold format. Section ‘From “unable or unwilling” to “manifest failing”’ documents the terminology transition from ‘unable or unwilling’ to ‘manifest failing’ to highlight the problems of ambiguity and inconsistency. Section ‘Future policy recommendations’ identifies five policy proposals to help address the issues at stake: first, reject this research agenda; second, do nothing; third, drop the ‘manifest failing’ requirement; fourth, revert to using the phrase ‘unable or unwilling’; and fifth, establish indicators of a ‘manifest failing’. Favouring the last option, it highlights five indicators of a ‘manifest failing’ which, it is argued, provide a more informed understanding of a ‘manifest failing’.
From ‘unable or unwilling’ to ‘manifest failing’
The phrase ‘manifest failing’ was introduced in the final drafting stage of the WSOD in order to replace the terminology ‘unable or unwilling’, but little guidance is offered to help decision-makers in determining when a state is ‘manifestly failing’. At this point, the reader may claim that the phrase is so transparent there is no need for clarity; after all, the word manifest means ‘evident to the eye, mind, or judgement; obvious’. 17 But when this understanding is applied to the assessment of whether a host state is ‘manifestly failing’ to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity, what evidence is required? If it is the case that proof of one of the four crimes being carried out is necessary to warrant a pillar three response, then the requirement of a ‘manifest failing’ would not be needed. In addition to this, the complexities that surround the definition of crimes such as genocide make such thinking problematic. Consider that from a legal perspective, the killing of just one person or a small group of people, for example, a group of hostages, could constitute genocide (if a range of other factors are met 18 ), but it is highly doubtful that anyone would argue that this represents a ‘manifest failing’. This is why scholars such as Pape, in his rejection of R2P, call for a more pragmatic approach which does not set the bar as low as the R2P. 19 Although this author rejects his rejection of the R2P on the grounds that his concerns can be met through the R2P approach, Pape puts the issue of scale of the crime in context when he asks, ‘[w]hat kind of war crime?’ and ‘[w]hat kind of ethnic cleansing?’ requires international action. 20 It is with this thinking in mind that this author suggests that a more informed understanding of a ‘manifest failing’ may help R2P analysts address this concern.
In its original formulation, the R2P was based on the idea that the international community would respond when states were ‘unable or unwilling’ to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.
21
As set forth in the 2001 report by the International Commission on Intervention and State Sovereignty: The emerging principle in question is that intervention for human protection purposes, including military intervention in extreme cases, is supportable when major harm to civilians is occurring or imminently apprehended, and the state in question is unable or unwilling to end the harm, or is itself the perpetrator. (Emphasis added)
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The statement highlights that the phrase ‘unable or unwilling’ goes right to the very heart of the R2P. 23 If, for whatever reason, the state in question was judged to be ‘unable or unwilling’ to protect its population, then, and only then, could the UN Security Council act without the state’s consent. Again, it is worth stressing that this was not intended to limit the UN Charter, but instead set out to guide R2P action. As the report goes on to explain, ‘it is only if the state is unable or unwilling to fulfill this responsibility, or is itself the perpetrator, that it becomes the responsibility of the international community to act in its place’. 24 From an R2P perspective, the thinking is that the UN Security Council should agree that the state in question is ‘unable or unwilling’ to fulfil its R2P prior to any UN Security Council being taken without the host state’s consent. This understanding was restated in the 2004 Report of the UN Secretary-General’s High Level Panel, 25 the 2005 Report of the UN Secrteray-General 26 and applied practically to the assessment of the Sudanese regime by the International Commission on the Inquiry of Darfur. 27
It is important, therefore, to stress that the phrase ‘manifest failing’ did not appear in any of the R2P precursory documents yet appears in paragraph 139 of the WSOD: 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 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 organisations 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.
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The statement captures the fact that the third pillar of the R2P embodies a dual element as the international community has to assess, primarily, whether one of the four crimes has been committed and, secondarily, whether the state in question is ‘manifestly failing’ to protect the population from these crimes. 29 But what constitutes a ‘manifest failing’?
To gain some clarity on where the phrase ‘manifest failing’ came from, this author contacted the Global Centre for the Responsibility to Protect (GCR2P) and was informed: There will be no documents on this point. At the final days of negotiation, all was done very very informally with no official drafts but through discussions of a few of the key drafters. Manifest failure was a Canadian suggestion, trying to remove the subjectivity of ‘unable or unwilling’ that had appeared in previous drafts, and insert what they believed to be a more evidence-based standard. It was accepted without difficulty.
30
According to the GCR2P, the phrase ‘manifest failing’ is included to overcome the subjective problems that drafters felt may arise over international society’s ability to evidence that a state is ‘unable or unwilling’ to prevent genocide, war crimes, ethnic cleansing and crimes against humanity. At this point, it is necessary to note that this author has tried extensively to gain additional sources of evidence to prove or disprove this justification. To date, none of the leading R2P scholars this author has contacted knows why this terminology change took place. To some extent, this supports GCR2P’s claim that this was a very informal discussion with no supporting documentation. This is reinforced by the two facilitators Iftekhar Ahmed Chowdhury (Bangladesh) and Roman Kirn (Slovenia), the latter of which claims that the wording ‘manifestly failing’ came to the table after they had already completed their role as facilitators and he does not recall who actually proposed it. 31 But even if one accepts the view set out by GCR2P, it is not clear (a) how the phrase ‘manifest failing’ is more objective than ‘unable or unwilling’, (b) what evidence is required to prove a ‘manifest failing’ and (c) what the unintended implications of this terminology change may be. For example, as Stahn claims, ‘the requirement of a manifest failure may be used as an additional means to challenge the legality and timing of collective security action’. 32 Although this has not been the case to date, pillar three crisis remains much less frequent, and therefore, there is still scope that this may be an issue in the future.
Since 2005, it is evident that there have been some high profile concerns regarding the identification of a ‘manifest failing’. For example, in 2008, the Asia Pacific Centre for the Responsibility to Protect (APCR2P), University of Queensland, used the AUD$2m funding provided by the Australian government to fund 14 R2P research projects.
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Of relevance here is the project Assessing the Parameters for Identifying a ‘Manifest Failure’ to Protect Populations under R2P led by Professor Rosenberg.
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The fact that this research was funded by the APCR2P gives weight to this article’s claim that there are unresolved issues surrounding the identification of a ‘manifest failing’.
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At this time of writing, there have been two outputs from this research.
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Of interest here is ‘principle four’ which specifically addresses the question of what constitutes a ‘manifest failing’: The determination of whether a State is ‘manifestly failing’, should be based on the information regarding relevant human rights violations, the implementation of measurable steps by the State to mitigate risk factors, and their impact on the real risk that exceptional grave violations of human rights could occur in the future. Based on the outline of consecutive measures to mitigate the real risk of exceptionally grave human rights violations, the compliance of national governments and the international community can be established. Manifest failure occurs when foreseeable consequences have not been addressed and an unacceptably high level prevails or increases.
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The statement goes one step further than GCR2P as the authors highlight the need for evidence of the four crimes but more specifically evidence that the state in question is taking measurable steps to mitigate the risk of the four crimes being committed. Accordingly, the judgement of whether a ‘manifest failing’ is taking place is not just based on evidence of the four crimes but on the behaviour of the regime in question. As will be discussed in section ‘Future policy recommendations’, this could be indicated through a behavioural-based assessment of intent. The proposed indicators (see section ‘Future policy recommendations’, option 5) therefore help develop this research agenda and respond to the former UN Special Representative on the R2P, Edward Luck, who states in the foreword, ‘I would hope that one of its results will be to encourage others to continue this line of inquiry’. 38
If ambiguity is one problem, inconsistency is another. To some extent, this is part of a broader issue concerning interpretations of the R2P itself. For example, Rosenberg and Strauss conducted 40 interviews ‘with representatives from UN Member States, academics and non-governmental organisations’ (NGOs) and conclude, ‘[t]he RtoP remains open to different interpretations, and in the absence of universally accepted criteria to determine when an RtoP scenario is stated to be occurring, differing interpretations are to be expected’. 39 More specifically, however, the discourse does reveal some concerning statements regarding interpretations of a ‘manifest failing’. For example, Serrano informs the reader that the international community has a R2P ‘if states are manifestly failing – that is, if they are unable or unwilling to protect their populations from these crimes’. 40 The statement offers a different interpretation to that offered by GR2P in that Serrano does not view ‘manifest failing’ as more objective and instead views the two phrases are synonymous with one another. To take another example, Weiss offers a hybrid formulation as he refers to states that are ‘manifestly unable’ and ‘unable or manifestly unwilling’. 41 Again, the conflation seems to imply the two phrases are interchangeable. But if this is true, then why was the change of terminology in 2005 even needed? Furthermore, UN Member State representatives have offered very different interpretations. The representative of Lichtenstein, Mr Wenaweser, states ‘the third pillar deals with situations where a State manifestly fails in its responsibility, due to unwillingness rather than inability’. 42 The statement reflects a clear attempt to distinguish between a state that is ‘unable’ as opposed to a state that is ‘unwilling’. It is only the latter that is considered to constitute a ‘manifest failing’ which does not align itself with Weiss notion of a state that is ‘manifestly unable’.
Attempting to draw a further distinction, some R2P scholars have put forward the idea that the phrase ‘manifest failing’ was used in order to raise the threshold for a pillar three action from ‘unable or unwilling’ to a ‘manifest failing’.
43
As Alex Bellamy explains: To appease the US and G77, the threshold at which the responsibility for dealing with genocide and mass atrocities passed from the host state to international society was altered. Initially the host state had to prove itself ‘unable or unwilling’ to protect civilians from mass killing and ethnic cleansing. This was subsequently altered to a ‘manifest failure’ to protect civilians – a significantly higher threshold.
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The statement sets forth the idea that the change in terminology was a conscious decision to try and raise the threshold for R2P action. Although such thinking is sometimes expressed in the literature, it is not clear where this has come from (Hehir, Brown and Bellamy offer no supporting reference). At the time, the United States did make their R2P concerns known, most famously via John Bolton’s letter, but in this, he uses the phrase ‘unable or unwilling’ and never mentions ‘manifest failing’. 45 In personal correspondence with this author, he states he cannot recall any debate on this issue. 46 This is not to say that the United States did not apply pressure after Bolton’s letter, but if this is the case, why does the GCR2P claim it was a Canadian rather than a US suggestion? Also, if it is the case – that the United States prefers the phrase ‘manifest failing’ – then why did the United States choose to use the phrase ‘unable or unwilling’ in its 2010 US National Security Strategy endorsement of the R2P while making no reference to ‘manifest failing’? 47 Of course, it could be that the Obama administration favoured changing the terminology, but such unanswered aspects shed a spotlight on what is sometimes presented as a self-evident truth in the discourse.
To consider this further, let us turn our attention to the 2008 UK National Security Strategy which set out the following support for the R2P: where a government is unwilling or unable to protect its citizens from genocide, war crimes, ethnic cleansing or crimes against humanity, or is perpetrating these acts itself, the international ‘Responsibility to Protect’ ultimately requires the international community to act.
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The statement reveals that the United Kingdom used the phrase ‘unable or unwilling’ rather than ‘manifest failing’ despite the fact that the former does not appear in paragraph 139 of the WSOD. This is the same terminology therefore that was later used by the United States in 2010. Within the context of the United Kingdom, Chris Donnelly explains: The term unwilling or unable involves an assessment of the situation, whereas manifest failing involves only an analysis of the situation. The UK has generally been more robust in its approach than international institutions such as UN and NATO (where my expertise comes from). Our keeping of the idea of basing our response on assessment (which is analysis plus judgement) gives us a degree of discretion to act based on our assessment of intent, not just on evidence of events.
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To explain, Donnelly established the Advanced Research and Assessment Group (ARAG) which was a department of The Defence Academy that acted as the Armed Forces main educational establishment in the United Kingdom. This is not to suggest that the views expressed reflect the official policy of Her Majesty’s Government or Ministry of Defence, but to date, the statement provides the best insight we have into the thinking at the time. The statement implies that the drafters chose the phrase ‘unable or unwilling’ rather than ‘manifest failing’ precisely because they wanted to keep a subjective element in its assessment, which it defines as ‘analysis plus judgement’. So whereas GCR2P’s claim that the drafters in 2005 were trying ‘to remove the subjectivity of “unable or unwilling”’, it would seem that this is what was being reinserted in the 2008 UK approach to R2P. Having said that, since then the United Kingdom’s position on this has not been consistent. In October 2013, following the vote on Syria, the Ministry of Defence produced written evidence on Intervention within UK National Security Strategy which uses the phrase ‘manifestly unable or unwilling’ in its reference to pillar three. 50 In January 2014, supplementary evidence from the Rt Hon Hugh Robertson MP, Minister of State, Foreign and Commonwealth Office, uses the phrase ‘unable or manifestly fail’. 51 This seems to contradict the United Kingdom’s earlier position and is also in sharp contrast to the aforementioned view from Lichtenstein which did not see a state that is ‘unable’ as ‘manifestly failing’.
Critically, the ambiguity and inconsistency that surrounds the phrases ‘manifest failing’, ‘unable or unwilling’ and the rather odd hybrid variations feed into a broader concern regarding Western manipulation of the R2P. In his seminal piece on ‘Responsible Protection’, Ruan Zongze has specifically questioned the ambiguity that surrounds the phrase ‘unable or unwilling’: There are so far no objective criterions to judge if ‘a country is unwilling or unable to execute responsibility to protect’ and therefore it is likely that it would become another excuse for some countries to impose armed intervention in the internal affairs of other countries.
52
Although one has to be careful not to extrapolate too much from one source, it is important to bear in mind that Zongze is the Vice President of the China Institute for International Studies which is the Chinese foreign ministry’s think tank which also hosted the first ever policy discussion on China and the R2P. 53 In other words, this is the closest thing we have to an official China statement on R2P. The statement explicitly acknowledges two points which go right to the very heart of this article. The first is inconsistency as Zongze uses the phrase ‘unable or unwilling’ despite the fact that this is not what was agreed to in the WSOD although, as stated, it is used in the US and UK National Security Strategies which Zongze may, or may not, be responding to. Second, it expresses the fear that Western states may manipulate the ambiguity that surrounds pillar three terminology to claim state x is failing when in fact it may not be. In other words, without criteria, how is that judgement made, on what grounds is it substantiated and what can those that disagree appeal to in order to challenge this? This is precisely why scholars such as Rosenberg and Strauss make the case that we need to look at all available evidence in order to assess the compliance of the regime in question. However, Zongze goes one step further than this as he favours the establishment of criteria. This will be returned to in section ‘Future policy recommendations’.
In short, the variety of uses above illustrate an inconsistent discourse which only adds to the confusion that surrounds the question of what constitutes a ‘manifest failing’? As a result, legitimate questions can be raised over whether the actors involved are even conscious of the terminology change and the language that they themselves use. Therefore, as we approach the 10th anniversary of the WSOD, this is an opportune time to consider future policy and research directions.
Future policy recommendations
Option 1: reject this research agenda
The reader may reject the idea of developing the ‘manifest failing’ research agenda on the grounds that it does not matter what phrase is used, the decision to react is a political choice based on things other than a ‘manifest failing’, such as the national interest, sovereignty and the complexities of intervention.
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For example, as Bellamy rightly points out: France (in relation to Myanmar) and Russia (in relation to Georgia) used RtoP to justify the actual or potential use of coercive force in contexts where there was no apparent manifest failure to protect populations from genocide and mass atrocities.
55
Moreover, the lack of clarity regarding a ‘manifest failing’ did not prevent a consensus on Libya. From this view, R2P scholarship or policy-makers should not get bogged down in a research agenda which has no impact on the decision-making process. Essentially, this critique forms part of a broader debate regarding the importance of words in international relations. Neorealists, such as Mearsheimer, have explicitly rejected the influence of words, whereas interpretivists, such as Epstein, have emphasised ‘the power of words in international relations’. 56 Although the parameters of this article cannot address this debate in detail, it is necessary to highlight that this author is not trying to overstate the importance of words or downplay other factors such as power politics and the national interest.
Yet, at the same time, it is important to bear in mind that within the R2P framework (as set out in the WSOD and many UN Reports since), the ‘manifest failing’ requirement represents threshold. Whether this is framed in terms of illegitimacy, irresponsibility, an escalation in violence, ‘unable or unwilling’ or ‘manifest failing’, the underlying logic is that of threshold: a line has been crossed in that what was tolerated yesterday cannot be today and action has to be taken. To return to the work of Rosenberg and Strauss, understanding the government’s role in mitigating the risk of the four crimes will help us establish whether a ‘manifest failing’ is taking place. This will aid understanding of R2P action as well its abuse. Regarding the former, UN Resolution 1973 on Libya starts by stating, ‘Deploring the failure of the Libyan authorities to comply with resolution 1970 (2011)’, and, of course, UN Resolution 1970 outlines a series of accusations against the Libyan regime. 57 Although it does not use the exact phrase ‘manifest failing’, we still see a discussion of whether a threshold has been passed. This threshold, it is claimed here, may be discussed using a variety of terms, but the correct phrase is ‘manifest failing’ – at least according to the WSOD. Regarding the latter, surely a strong case can be made that a more informed understanding of a ‘manifest failing’ helps delegitimise misuse. In both Georgia and the Ukraine, Russia (a) failed to work through the UN but (b) also failed to demonstrate that the government in question was ‘manifestly failing’ to protect the population from the four crimes.
Option 2: do nothing
From this perspective, it is better not to have indicators as an individual assessment should be done on a ‘case-by-case basis’ as set out in paragraph 139 of the WSOD: ‘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’. 58 The case-by-case approach has two significant strengths that should not be overlooked. First, it would be a mistake to claim that a ‘one-size-fits-all’ approach can be established as mass atrocity crimes are far too complex for any single framework to provide a solution. 59 For example, the debates over the causes of genocide alone highlight that no approach can provide the silver bullet. 60 Second, the ‘case-by-case’ logic allows flexibility. This is a fundamentally important point and to return to the construction of the UN Charter, its architects deliberately used ‘language that was adaptable enough to allow application under unforeseen circumstances in years to come’. 61 In other words, if guidelines are too rigid, then ultimately this hinders rather than helps the application of policies, which again underlines the need to assess each R2P crisis on a ‘case-by-case’ basis.
Although this UN perspective is the dominant view found in the discourse, there are a number of issues that need to be thought through. First, any attempt to create a ‘one-size-fits-all’ approach is flawed, but, as Bellamy highlights, it is important to differentiate between the interpretation of the R2P and the application of it. 62 For example, the UN Secretary-General states, ‘[a]s each situation is different, it would be counterproductive to try and make the application of these principles appear identical in all situations’. 63 The statement sets out the case that the application of the R2P should be shaped by the circumstances involved, and the point here is not to dispute that claim. The response of the international community should differ on a case-by-case basis; after all, ‘foreign policy must always operate within what Edmund Burke termed “the empire of circumstances”’. 64 But in order to help make the R2P sustainable in the twenty-first century, our interpretation of the concept should be consistent, and a part of this has to be raising awareness of, and addressing the issues that surround, ‘manifest failing’. Second, even on a ‘case-by-case basis’, states will have to appeal to something in order to make the case that a threshold has been passed even if the phrase ‘threshold’ is not be used explicitly (though at times it clearly is 65 ). This restates the need to address the ambiguity that surrounds ‘manifest failing’. It also gives weight to the idea that indicators may help aid decision-makers in making their assessment of a ‘manifest failing’, thus improving the ability of the UN to fulfil its own commitment to respond in a ‘timely and decisive’ manner. It is important therefore to understand that establishing indicators compliment the UN approach rather than challenge it – though there is still the issue of flexibility which is discussed below.
Option 3: drop the ‘manifest failing’ requirement
One can easily imagine the following argument being made; surely, if any amount of genocide, war crimes, crimes against humanity or ethnic cleansing is taking place, then this demands a pillar three response. From this perspective, ‘manifest failing’ is an epistemic requirement which should be dropped as proving that one of the four crimes has taken place is sufficient to warrant a pillar three response. Although this author is sympathetic to this line of thinking, it is rejected on the pragmatic grounds that a small-scale example of genocide, war crimes, crimes against humanity or ethnic cleansing may take place which would not meet the threshold required to merit a pillar three response. From a legal perspective, a war crime can take place if private property is targeted 66 and, as aforementioned, genocide could be deemed to have taken place if just one person or a group of hostages were killed, as long as it was proven that their murder was intended to destroy their national, racial, ethnic or religious group in whole or in part. It is highly doubtful that anyone would interpret this as a ‘manifest failing’. Surely, the decision to insert a threshold qualifier (whether it is ‘manifest failing’ or ‘unable or unwilling’) stems from this understanding.
Option 4: going back to move forward
From this viewpoint, the phrase ‘unable or unwilling’ should be used rather than ‘manifest failing’ on the grounds that the former has more purchase and is therefore better for assessing when a state has failed in its R2P. The most significant reason to support this course of action is the fact that the United States and United Kingdom are utilising the phrase ‘unable or unwilling’ in their National Security Strategies. This is important because if the R2P is to be further entrenched as a norm in the twenty-first century policy-making, then the role of the powerful is pivotal. As Theresa Reinhold explains in her analysis of ‘hegemonic law-making’ and the R2P, it is not that the United States can command states to adhere to the R2P (or even wants to), but in order for the R2P to have a successful life-cycle, it remains dependent upon US support. 67 Indeed, it may be that no amendment is made to paragraph 139, but yet the phrase ‘unable or unwilling’ gradually replaces ‘manifest failing’ in the discourse precisely because powerful actors such as the United States and United Kingdom start to use this phrase more.
As stated above, however, actors such as the UN Secretary-General, Ban Ki-moon, explicitly talk in terms of ‘manifest failing’ rather than ‘unable or unwilling’. Moreover, it is easy to expect a backlash as non-Western states question the motives of the United States and the United Kingdom as they suggest a terminology change, especially if this is interpreted as an attempt to lower the threshold for intervention rather than as an attempt to establish clearer indicators. This fear is further exacerbated by the historical and political baggage that surrounds the phrase ‘unable or unwilling’: ‘[t]he United States has long articulated the “unable or unwilling” standard to justify the use of force in self-defence in response to terrorist attacks’. 68 Thus, the case could be made that in a post-9/11 world it is important to distance the R2P and mass atrocity prevention from counter-terrorism and the ‘War on Terror’ – especially as the invasion of Iraq threatened the concept’s very existence. 69 On this fourth option, the jury is still out as there is no way of knowing how the R2P norm will develop, but concerns remain as one can see the potential for tensions to emerge between actors using different terminology.
Option 5: establish indicators for assessment
From this standpoint, scholars and policy-makers should establish indicators that can help an assessment of what constitutes a ‘manifestly failing’. This author is conscious here that any attempt to establish criteria may fall into the trap of reducing the complexity of irresponsible sovereignty down to an over simplistic tick-list. For example, in Oliver O’Donovan’s analysis of Just War Theory, he claims that modern textbooks tend to present the theory as seven criteria which have a ‘disconcertingly legalist feel to them, ticking off principles, as it were, one by one’. 70 In a similar vein, it seems inappropriate to suggest that an assessment of whether a state has in fact ‘manifestly failing’ can be done through a box ticking exercise. Moreover, such an approach would hinder the flexibility needed as outlined in option 1. That said, there is a reason why Just War theorists continually use criteria. These help provide a general framework for identifying a just war. In essence, everyone involved is aware that the judgement is complex but appeal to criteria in order to establish a ‘common reference within which argumentation can take place’. 71 One clearly sees this sentiment expressed in the work of Rosenberg and Strauss as they state, ‘[a] coherent, common standard of assessment that can be utilized on a case-by-case basis provides clear boundaries to discussions over when the RtoP applies’. 72 The statement highlights that a common standard does not have to be viewed as incompatible with flexibility and can in fact facilitate assessments on a case-by-case basis, which, through the establishment of indicators, would help addresses concerns such as those raised by Zongze.
This final option proposes that analysts begin to put together a framework for judgement in the same way that Just War theorists do. It is with such thinking in mind that this author has produced the first tentative steps towards establishing a list of specific criteria through a case study analysis of the on-going crisis in Syria. 73 In so doing, the research puts forward five key indicators of a ‘manifest failing’: (a) government intentions, (b) weapons used, (c) death toll, (d) number of people displaced, and (e) the intentional targeting of civilians, especially women, children and the elderly. Essentially, these act to try and identify the qualitative and quantitative indicators that actors invoke when attempting to make the case that the threshold of a ‘manifest failing’ has been reached. They develop on from the work of scholars such as Rosenberg and Strauss as they strive to help analysts judge the extent to which the host state is mitigating the risk of the four crimes. The case study analysis of Syria also highlights the need to get to grips with the confusion and chaos that academics and policy-makers face when analysing the issue of a ‘manifest failing’ within the context of warfare. 74 This is a key component highlighted in the UN Secretary-General Ban Ki-moon’s 2013 report as he highlights the need to navigate the ‘overlap’ between ‘armed conflict’ and ‘atrocity crimes’. 75 Of course, further research is needed, and although five criteria may seem somewhat simplistic, one should remember that the identification of between three and seven criteria (this has changed over time) has been used to guide assessments of what constitutes a Just War from St Aquinas to present day.
Conclusion
Ten years on from the WSOD, an analysis of the R2P discourse highlights the ambiguity that surrounds the ‘manifest failing’ requirement as well as the inconsistency that stems from scholars and policy-makers using different phrases and offering diverse interpretations. Accordingly, this article asks scholars and practitioners to pause and consider what terminology they are using and why. Moreover, it calls for a more consistent discourse to be established which is based on a more informed understanding of what constitutes a ‘manifest failing’. To facilitate this, the article set out five options to aid R2P scholarship as it moves forward, each of which raise a series of questions and issues. In so doing, it put forward five key indicators of a ‘manifest failing’: (a) government intentions, (b) weapons used, (c) death toll, (d) number of people displaced, and (e) the intentional targeting of civilians, especially women, children and the elderly. To return to the work of Rosenberg, Strauss and Labonte, this is a fledgling research agenda which this article develops further while calling for more research to be done in order to advance a clearer understanding of what constitutes a ‘manifest failing’.
Footnotes
Acknowledgements
I would like to take this opportunity to thank Aidan Hehir, James Pattison, Jason Ralph, Vasilka Sancin and the anonymous reviewers for their thoughtful, insightful, and helpful comments on earlier drafts. Any errors are the author’s own.
Funding
This research received no specific grant from any funding agency in the public, commercial or not-for-profit sectors.