Let us understand the Responsibility to Protect before we [mis]apply it in Venezuela

The Responsibility to Protect (RtoP) was unanimously endorsed by United Nations member states at the World Summit in 2005. The agreement sets out to protect people the world over from four crimes: genocide, war crimes, crimes against humanity, and ethnic cleansing.

What does this have to do with Venezuela? In September 2018, Peru, Paraguay, Chile, Argentina and Canada requested that the International Criminal Court investigate the alleged crimes of Nicola Maduro’s regime in order to establish whether they constitute crimes against humanity as defined in Article VII of the Rome Statute. As a result, prominent political figures began to invoke the RtoP. The Secretary-General of Organization of American States, Luis Almagro, declared “[w]e must act in accordance with public international law — including the UN’s 2005 ‘responsibility to protect’ commitment to prevent genocide, and international criminal law — and the international norms that protect democracy and our rights and freedoms”.

Since then, the RtoP has been caught up in a battle for legitimacy. In January 2019 Juan Guaido declared himself interim President of Venezuela, a claim that has been upheld by 50 states, including the United States, yet vehemently rejected by Russia as “flagrant interference”. Russian Foreign Secretary, Sergei Lavrov, questions the “hypocritical pretext of humanitarian aid” and essentially claims that the US is using the crisis as a window of opportunity to pursue regime change.

He is not alone in this view. On March 2nd 2019, Alfred De Zayas, United Nations Independent Expert on the Promotion of a Democratic and Equitable International Order, tweeted: “The R2P ‘doctrine’ is nothing but a protect for military aggression which remains prohibited and a crime under the ICC statute, because the R2P cannot replace the UN Charter and a pertinent Security Council resolution. But the media still peddles the ‘fake legality’ of R2P”.

The statement is just one of many examples of high-profile political figures misunderstanding the RtoP. It embodies three assumptions that are simply inaccurate and, as a result, create problems for how it is applied to real-world crises such as Venezuela. Let us take these one by one.

First, the RtoP does not permit military aggression as defined by the ICC. It actually acts as a barrier to it. Yes, the RtoP does allow states to consider all coercive and non-coercive measures under Chapters VI, VII, and VIII of the UN Charter when a government is ‘manifestly failing’ to protect its population from the four crimes. This includes the use of force. But, critically, any action taken has to be authorised by the UN Security Council. In other words, any US-led use of force without the consent of the UNSC should not be viewed as the RtoP.

Second, the RtoP does not set out to replace the UN Charter. The RtoP was forged in the UN, it is a UN-led response to the problem of mass atrocity crimes and, as stated, it requires UN Security Council authorisation. All of which means that it is simply inaccurate to suggest that the RtoP sets out to replace the UN Charter.

Third, the RtoP should not be viewed as having ‘fake’ legal credentials. It is correct to say that the RtoP did not create any new legally binding obligations in international law, but this does not mean that it is legally void. The RtoP is a political and moral commitment that is built on pre-existing international legal agreements such as the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide and the 1998 Rome Statute which outlines the legal obligations surrounding genocide, crimes against humanity, and war crimes.

If this is all correct, why do prominent figures speak of the RtoP in a toxic manner? The answer, in large part, lies in Libya in 2011. The UN Security Council invoked the RtoP in response to the threat of mass violence posed by Colonel Gaddafi’s regime. The regime change led by the US, the UK, and France in Libya created a backlash as many states, including Russia, China, and South Africa, felt as though they had been duped. The power vacuum and civil war that followed led to crimes against humanity becoming the norm, precisely what the intervention was meant to prevent. The failure in Libya has cast a long shadow. Notably, the same three countries who expressed indignation over how Libya was implemented — Russia, China and South Africa — voted against the US proposed Resolution on Venezuela to the Security Council.

All this begs the question, is it even right to speak of the RtoP in relation to Venezuela? As stated, the UN Security Council can discuss coercive and non-coercive measures under Chapters VI, VII, and VIII of the UN Charter. In so doing, the crisis can provide a window of opportunity for the Security Council to clarify what the RtoP does and does not say. For example, the RtoP does not say anything about democracy promotion and should not be used as a vehicle to promote such values. Essentially, the RtoP is about human protection from the most heinous crimes in international relations. This should not be forgotten. Accordingly, the international community should use diplomatic channels to urge Maduro’s government to fulfil its domestic RtoP. If, as is expected, there is an effort to move humanitarian aid into Venezuela despite the government’s road blocks, it is essential that the Maduro government does not order the army to perpetrate mass violence against non-combatants.

Meanwhile, the UN Security Council could authorise the UN to establish a Commission of Inquiry to establish whether crimes against humanity are taking place. Any such fact-finding mission would help the Security Council establish whether the government in question is ‘manifestly failing’. On this note, it is important that those who champion the RtoP do not overstate the scale of the crimes being committed. Almagro invokes the Rwandan genocide as a pretext to justify RtoP action in Venezuela, but clearly any such analogy is deeply flawed as there is no pending threat of a mass genocide.

In short, what is needed is a Security Council that works as a collective security system to uphold and enforce the RtoP. What is not needed is the RtoP being inaccurately invoked as a pawn in a geo-political game that does nothing to help the victims of genocide, war crimes, crimes against humanity, and ethnic cleansing.

Dr. Adrian Gallagher is the Co-Director of the European Centre for the Responsibility to Protect, University of Leeds.