Responsibility to Protect: From Principle to Practice 9789048515042

Citation preview

Responsibility to Protect

Responsibility to Protect From Principle to Practice Edited by Julia Hoffmann and André Nollkaemper Assistant editor: Isabelle Swerissen

The Conference on ‘Responsibility to Protect: From Principle to Practice’ was organised and supported by the European Science Foundation (ESF) and the Ministry of Foreign Affairs of The Netherlands, in cooperation with the Amsterdam Center for International Law of the University of Amsterdam, the Global Centre for the Responsibility to Protect and Linköping University.

Cover design: Mulder Van Meurs, Amsterdam Lay-out: Maedium, Utrecht ISBN 978 90 8555 055 6 e-ISBN 978 90 4851 504 2 (pdf ) e-ISBN 978 90 4851 644 5 (ePub) NUR 828 © Julia Hoffmann & André Nollkaemper / Pallas Publications – Amsterdam University Press, Amsterdam 2012 All rights reserved. Without limiting the rights under copyright reserved above, no part of this book may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise) without the written permission of both the copyright owner and the author of the book.

Ta b le o f C on t en t s / 5

Table of Contents

Preface / 9 List of Abbreviations / 11 Introduction / 13 Julia Hoffmann and André Nollkaemper 1

The 2007-08 Post-Election Crisis in Kenya / 27 A Success Story for the Responsibility to Protect? Serena K. Sharma

Part I

The Emergence of the Responsibility to Protect

2

The Responsibility to Protect: The Journey / 39 Edward C. Luck

3

Reconstituting Humanity as Responsibility? / 47 The ‘Turn to History’ in International Law and the Responsibility to Protect Mark Swatek-Evenstein

4

Canada’s Role in the Conceptual Impetus of the Responsibility to Protect and Current Contributions / 61 Marc Alexander C. Gionet

5

The Responsibility to Protect within the Security Council’s Open Debates on the Protection of Civilians / 71 A Growing Culture of Protection Ludovica Poli

Part II The Responsibility to Protect under International Law 6

The Scope of the Crimes Triggering the Responsibility to Protect / 85 Jann K. Kleffner

Ta b le o f C on t en t s / 6

7

e Responsibility to Protect and Common Article 1 of the 1949 Geneva Th Conventions and Obligations of Third States / 93 Hanna Brollowski

8

The Responsibility to Prevent / 111 On the Assumed Legal Nature of Responsibility to Protect and its Relationship with Conflict Prevention Hanne Cuyckens and Philip De Man

9

e Responsibility to Protect and the Obligations of States and Th Organisations under the Law of International Responsibility / 125 Nina H.B. Jørgensen

10 Consensual Intervention and the Responsibility to Protect / 139 Responsibility to Protect’s Place within the Legal Framework of Consensual Intervention in Internal Armed Conflict Eliav Lieblich Part III Humanitarian Intervention and the Responsibility to Protect 11 Has Humanitarian Intervention Become Part of International Law under the Responsibility to Protect Doctrine? / 157 Diana Amnéus 12 Assigning Humanitarian Intervention and the Responsibility to Protect / 173 James Pattison 13 The Responsibility to Protect and Humanitarian Intervention / 185 Jennifer M. Welsh Part IV International Organisations and the Responsibility to Protect 14 The Responsibility to Protect and the Permanent Five / 199 The Obligation to Give Reasons for a Veto Anne Peters 15 The African Union and the Responsibility to Protect / 213 Principles and Limitations Ademola Abass

Ta b le o f C on t en t s / 7

16 ASEAN Responses to the Responsibility to Protect / 237 Challenges, Opportunities and Constraints Noel M. Morada 17 The Responsibility to Protect and Regional Organisations / 247 Where Does the European Union Stand? Jan Wouters, Philip De Man and Marie Vincent Part V

Implementing the Responsibility to Protect

18 A Responsibility to Protect or Preclude? / 273 Examining the Beneficiaries of the Responsibility to Protect Jennifer D. Halbert 19 The Responsibility to Protect / 291 Unilateral Non-Forcible Measures and International Law Veronika Bílková 20 The Responsibility to Protect Through the International Court of Justice / 305 Gentian Zyberi 21 Taking Prevention of Genocide Seriously / 319 Media Incitement to Genocide Viewed in the Light of the Responsibility to Protect Julia Hoffmann and Amaka Okany 22 Contextualising the Prevention of Genocide / 337 Francis M. Deng 23 Ending Our Age of Suffering / 347 A Plan to End Genocide Daniel Jonah Goldhagen Concluding Observations / 355 Julia Hoffmann and André Nollkaemper List of Contributors / 373 General Index / 379 Index of Treaties and Other International Documents / 383

Preface

The Responsibility to Protect (RtoP) has the potential to become a fundamental organising principle of modern international society. This principle emphasises that each state has the responsibility to prevent grave violations of human rights in its territory. It also - and this is its innovative dimension - assigns to the international community the task of supporting the implementation of this responsibility and of intervening if a state fails in its duty to protect. The aspiration and hope of those who support the emergence and development of RtoP is that the principle might assist in preventing repetitions of atrocities such as those that took place during past decades in Rwanda, Bosnia and Herzegovina (Srebrenica), and Sudan (Darfur). The principle of RtoP has become the subject of many discussions in the United Nations, the European Union, other regional organisations, in national capitals, and civil society organisations. No longer merely a lofty ideal, it has become a political reality. Its normative power was demonstrated when, in the spring of 2011, the Security Council invoked RtoP in support of its decision to act on the situation in Libya.1 Many viewed the Libyan intervention, based on the responsibility of the international community, as a defining moment for the future development of the principle of RtoP. Yet, it is precisely its invocation in the Libyan case that has raised fundamental questions concerning the powers, limitations and weaknesses of the principle of RtoP. Most critical, perhaps, is the question of whether RtoP allows for and could be (ab-)used to justify regime change in Libya. Indeed, more than 10 years after its initial appearance, the jury is still out on the scope and potential role of RtoP. Can it indeed induce change in the oftenbemoaned tardiness of the international community’s responses to mass atrocities? What instruments and procedures are best suited to address the causes of mass atrocities, so as to lead to actual prevention, rather than response? And on whom does the responsibility to protect actually rest: on the United Nations, regional organisations, individual states, or on all of these actors together? What can the doctrine deliver in terms of preventing a ‘pick-and-choose’ application of military force on the basis of selective geopolitical interests? The present volume addresses these and other questions that are raised by the emergence of RtoP. The volume reflects in part a four-day international conference that was organised by the Amsterdam Center for International Law (ACIL) in May 2010, under the auspices of the European Science Foundation (ESF), in Linköping,

re s pons i b i li t y t o pr o tect / 10

Sweden. Papers that were initially presented in Sweden were substantially reworked for the present volume and supplemented by papers to cover missing pieces of the puzzle. The volume has an interdisciplinary focus. While much of the volume deals with questions of international law, based on the premise that the legal nature of (parts of ) RtoP is of major significance for its power to compel change, the legal analysis is embedded in a discussion of questions of international relations, political theory and moral theory. We thank the ESF for giving its support to the conference. We also thank the Ministry of Foreign Affairs of the Netherlands, which supported both the conference and the preparation of the present volume. Special thanks go to Martine van Trigt for the actual organisation of the conference, and Christopher Hopwood, Nienke van der Have, Ralph Janik, Yael Ribco and Isabelle Swerissen for their support in drafting and editing texts for the introductory and concluding chapters, as well as providing editorial work for the volume as a whole. Julia Hoffmann and André Nollkaemper 30 May 2011

Note 1 UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970/2011, followed by UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973/2011.

List of Abbreviations

ACHPR AICHR ALF AMIS APEC APRtoP ARF ASA ASEAN ASR AU CFSP CSCAP CSDP DARIO DFA EC ECJ ECK ECOMOG ECOWAS EPG EPP ESDP ESS EU EUFOR GDP GUE/NGL ICC ICCPR

African Commission on Human and Peoples’ Rights ASEAN Inter-Governmental Commission on Human Rights African Leadership Forum African Union Mission in Sudan Asia-Pacific Economic Cooperation Asia Pacific Centre for Responsibility to Protect ASEAN Regional Forum Association of Southeast Asia Association of Southeast Asian Nations Articles on Responsibility of States for Internationally Wrongful Acts African Union Common Foreign and Security Policy Council for Security Cooperation in the Asia Pacific Common Security and Defense Policy Draft Articles on the Responsibility of International Organizations Department of Foreign Affairs European Community European Court of Justice Electoral Commission of Kenya Economic Community of West African States Monitoring Group Economic Community of West African States Eminent Persons Group European People’s Party European Security and Defence Policy European Security Strategy European Union EU military operation in Libya Gross Domestic Product Confederal Group of the European United Left International Criminal Court International Covenant on Civil and Political Rights

Re s pons i b i li t y t o Pr o tect / 12

ICESCR ICISS

International Covenant on Economic, Social and Cultural Rights International Commission on Intervention and State Sovereignty ICJ International Court of Justice ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IDPs Internally Displaced Persons IHL International Humanitarian Law ILC International Law Commission IMT International Military Tribunal KNDR Kenyan National Dialogue and Reconciliation MAPHILINDO Malaysia, Philippines and Indonesia MDGs Millennium Development Goals NaRC National Rainbow Coalition NATO North Atlantic Treaty Organisation NGO Non-Governmental Organisation NORAD North American Aerospace Defence Command OAU Organisation of African Unity ODM Orange Democratic Movement OSCE Organisation for Security and Co-operation in Europe PMSCs Private Military and Security Companies PNU Party of National Unity PoC Protection of Civilians PSC Peace and Security Council P5 Five permanent members of the United Nations Security Council RtoP Responsibility to Protect SAARC South Asian Association for Regional Cooperation SADC South African Development Cooperation TEU Treaty on European Union TJRC Truth Justice and Reconciliation Commission UDHR Universal Declaration of Human Rights UK United Kingdom UN United Nations UNDP United Nations Development Programme UNGA (GA) United Nations General Assembly UNPREDEP United Nations Preventive Deployment Force UNSC (SC) United Nations Security Council UNSG United Nations Secretary General US United States of America VCLT Vienna Convention on the Law of Treaties WSO (Document)World Summit Outcome (Document)

Introduction Julia Hoffmann and André Nollkaemper

1

The emergence of the Responsibility to Protect

The tragic events of the 1990s and the first decade of the twenty-first century in Darfur, Kosovo, Liberia, Rwanda, Sierra Leone, and Srebrenica have triggered a fundamental rethinking of the role and responsibility of the international community. Indeed, the international community seems to have learned some painful but powerful lessons. In these and many other cases, the international community, and perhaps first and foremost the Security Council of the United Nations (UN), dramatically failed in their historic promise and aspiration to prevent genocide and other mass atrocities. The truth is that there was simply a lack of sufficiently strong political will, agreement or support to undertake tasks that would have been perfectly possible from a logistical perspective, and which would have saved the lives of millions of people. While in many of these cases troops were eventually sent, intervention was often too late and always too little. Srebrenica stands out as an illustration of a mismatch between the aspiration of prevention, on the one hand, and the number and capabilities of the troops that were actually deployed, on the other.1 Then UN Secretary-General Kofi Annan captured the general perception that lessons should be learned when he said in 1999 in the UN General Assembly that the international community should try and forge, once and for all, a consensus on how the international community should respond to ‘a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that affect every precept of our common humanity’.2 What followed was a decade-long debate on how to reconcile the two fundamental principles of international law that lie at the foundation of the UN Charter. On the one hand, each state has the sovereign right to freedom from interference in its domestic affairs and from the threat or use of military force against its territory, enshrined in Articles 2(7) and 2(4) of the UN Charter.3 On the other hand, all states are obliged to protect human rights and fundamental freedoms, which the UN Charter declares to be one of the very purposes of the UN.4 The tension between these principles had been particularly highlighted by the decisions of some states to assert a right to ‘humanitarian intervention’, as for example in the case of NATO intervention in the Balkans: a right to intervene militarily without the consent of the government of the affected state or UN authorisation to

J uli a H o ff m an n and A ndré N o llka em per / 14

protect suffering civilian populations.5 Many states, particularly those threatened with such military interventions, had questioned the legality of the concept, arguing that they infringe on state sovereignty and the attendant international legal rules on the threat or use of force against states. Yet, at the same time, there have been cases where it was not the legality of a decision to intervene, but rather a failure to do so that was troubling. In retrospect, it is hard to imagine anyone arguing against a forceful, timely intervention in the face of atrocities in Rwanda in 1994. In an age of almost real-time interconnectedness via mass media and a growing public consciousness of interdependence, simply ‘standing by’ no longer seems to be an option.6 The proponents of the principle of Responsibility to Protect (RtoP) believe that it can provide a way out of the deadlock in the debate on humanitarian intervention by reframing the debate in terms of ‘responsibility’ rather than ‘rights’. First, it defines state sovereignty as implying the responsibility of every state to protect its population from human rights abuses, a definition that carries with it the implication that a state’s failure to exercise its sovereign duty to protect leads to a corresponding diminution of its right to non-interference by outside forces. Second, it asserts a ‘responsibility’ on the part of the international community to support states to provide protection and, ultimately, to intervene when they fail to provide the necessary protection. A major impetus to the development of RtoP was given in 2001 by the report on ‘The Responsibility to Protect’ by the International Commission on Intervention and State Sovereignty (ICISS), a group of international experts mandated to find a balance between the two principles.7 Since the publication of the report, the RtoP concept has resonated worldwide, notably with civil society.8 Four years later, at the World Summit in 2005, the principle of RtoP found its way into the political arena.9 In particular, two paragraphs in the World Summit Outcome (WSO) Document have shaped the political debate on RtoP to this day. Paragraph 138 states that: ‘Each individual State has the responsibility to protect its populations from international crimes’. It also says that ‘the international community should, as appropriate, encourage and help States to exercise this responsibility’. Paragraph 139 then states that: 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 manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

in tr od u cti on/ 15

These two paragraphs reaffirm that the responsibility to protect individuals from mass atrocities rests, first of all, on the territorial state. They also reaffirm sovereignty and the entitlement of a state to find its own mode of prevention. Even though the events in Libya show what can happen when a state fails to shoulder the tasks of prevention and protection, it does not cast doubt on the fundamental premise that in the first instance, it was up to Libya to protect the individuals within its jurisdiction.10 However, significantly, states have accepted the residual responsibility of the international community: if the territorial state is unwilling or unable to grant protection, it is for the international community to step in, as it did in the case of Libya in 2011. RtoP is thus very much a responsibility that is shared by states where mass atrocities (may) take place and ‘the international community’ – a term that, of course, covers a variety of actors, including the UN, regional organisations and individual states. The WSO Document can be criticised for providing a weaker version of RtoP, often referred to as ‘RtoP lite’, compared to that which had been proposed by the ICISS in 2001. However, in retrospect, the WSO Document might be understood as an improvement on the ICISS report. The initially broad and fuzzy scope of RtoP, as suggested in the 2001 Report, has been narrowed and more precisely circumscribed. It is now agreed that RtoP (only) relates to four core international crimes: genocide, war crimes, crimes against humanity and ethnic cleansing – even though the last crime is a somewhat odd addition, the nature of which is quite different from that of the first three.11 While this is indeed a narrower version of RtoP, from another perspective, it has brought welcome specificity that may be necessary to make the principle acceptable and operational. In any case, it is clear that the WSO Document brought RtoP from the realm of academia and civil society into the actual day-today affairs of world politics. Since the WSO Document, RtoP has found its way further into the politics of the UN. The WSO Document expressly stipulated that the General Assembly should continue with its consideration of RtoP. A major contribution to this process was provided by the 2009 report to the General Assembly by Secretary-General Ban Ki-moon, entitled ‘Implementing the Responsibility to Protect’.12 Importantly, this document has translated paragraphs 138-139 of the WSO Document into a ‘threepillar approach’ consisting of: 1. the protection responsibilities of the state (the ‘responsibility to protect’); 2. international assistance and capacity building (the ‘responsibility to rebuild’); and 3. a timely and decisive response to prevent and halt genocide, ethnic cleansing, war crimes and crimes against humanity (the ‘responsibility to respond’). It thus continues to operate on the principle that the state has the primary responsibility for protecting its people. If a state fails in this responsibility, this still does not automatically give outsiders the right to intervene. Rather, the international

J uli a H o ff m an n and A ndré N o llka em per / 16

community must render assistance to that state, in terms of capacities to enable it to meet its responsibilities. However, if, and only if, despite this assistance, a state is ‘unwilling or unable’ to protect its people, the international community’s responsibility is activated.13 Despite the symbolic power of the 2005 World Summit, it is to be recalled that RtoP is not a brand new concept. Rather, it is the culmination of an extended process of development. For one thing, the concept has roots in Africa that predate even the ICISS report.14 Many African states have long endorsed RtoP, at least verbally, and have sometimes even acted in accordance with what it describes, just under a different name.15 Moreover, RtoP builds on the protection of human rights by the UN and its member states. Building on the 1945 UN Charter, the 1948 Universal Declaration of Human Rights gave clear and unequivocal expression to the moral standard of achievement that universal human values and rights need to be protected. This idea later gave rise to a large number of international agreements. Major milestones include the conclusion of the Genocide Convention in 1948,16 the conclusion of the International Covenant on Economic, Social and Cultural Rights (ICESCR)17 and the International Covenant on Civil and Political Rights (ICCPR) in 1966,18 and the adoption of the Rome Statute of the International Criminal Court in 1998.19 Many of the rights and obligations contained in these documents have similar aspirations to those of RtoP, which cannot be appreciated and assessed when disconnected from these roots. Finally, while the Security Council often can be criticised for acting too late in times of crisis, it is also a fact that the practice of peacekeeping has done much in terms of protecting civilians. Though it does not fall under the RtoP label as such, it is clear that protection of individuals from war crimes in particular has been a major objective of peacekeeping missions. RtoP, then, can best be seen as a continuation, be it one with a sense of urgency, rather than a radically new idea. The official acceptance of RtoP in 2005 can be regarded as the latest link in a long chain. However, it was not an insignificant next step. The principle played a distinct role in the international response to the Kenyan election dispute of 2007/0820 and the responses to Libya in 2011.21 The break with the past is particularly clear when it comes to the recognition of the complementary responsibility of all other states. The task of the international community to assist and possibly even intervene certainly goes a step beyond the idea that the promotion and protection of human rights are legitimate concerns of the international community.22 For these reasons, we take the position that RtoP should be regarded as an innovative, overarching concept in which both new and existing elements play an integral role. The comprehensive approach embodied by RtoP is thus a key aspect of its added value: it encompasses prevention, reaction and rebuilding, while it addresses not only the role of the state, but also that of the international community acting together.23

in tr od u cti on/ 17

2 Practice As noted by Edward Luck, the principle of RtoP is designed to change human behaviour. Therefore, in the end, it can only be judged by what does (or does not) happen in practice. The theories that support RtoP, be they legal, political or philosophical (many of which are discussed in this volume), are only a means to an end and not an end in themselves.24 Practice shows that there are some cases that may be used to demonstrate that RtoP can make a difference, but there are at least as many (and actually more) situations where RtoP failed to have any impact. One (alleged) success story is Kenya’s post-election violence, where Kofi Annan carefully avoided using the term, but acted in its spirit and restored some stability. Yet, the jury is still out on the question of whether it really was a success.25 One of the failures is Darfur, where Sudan not only failed to do what paragraph 138 of the WSO Document would have wanted it to do, but where, moreover, the UN failed to do what paragraph 139 wanted it to do.26 Yet, it also is true that no one knows what would have happened in the absence of the insistent pressure applied by the Security Council, the African Union (AU) and other regional organisations, and it may be too simplistic to see Darfur only as a failure of RtoP. These front-page stories are really only the tip of the iceberg. Beyond the headlines, in contexts that mainly fail to spark the interest of any journalist and thus remain hidden from view, much RtoP activity is going on. In 2010 alone, the UN supported 34 different mediation, facilitation and dialogue efforts, including easing the crisis in Kyrgyzstan and keeping the transition to democracy on track in Guinea. To this we can add the multitude of peacekeeping operations and activities of regional organisations. While RtoP is not often invoked, efforts to protect have become significant in practice, and this raises the question of the basis, scope and limit of the principle of RtoP.

3

Some questions

While the principle of RtoP is now broadly accepted, in certain respects this is only the beginning of its development, rather than its end. The new elements are controversial and the compromise formulations used in the WSO Document leave room for and necessitate further interpretation and elaboration. UN Secretary-General Ban Ki-moon recently called the RtoP ‘one of the more powerful but less understood ideas of our times’. He furthermore stated that ‘we need a common understanding of what RtoP is and, just as importantly, of what it is not’.27 In particular, four sets of questions stand out. First, a critical claim of the RtoP doctrine is that both the state where mass atrocities are committed and the international community (a term that we use here as a shorthand for other states and international organisations) have some form of responsibility to prevent such atrocities. This claim raises the question as to what

J uli a H o ff m an n and A ndré N o llka em per / 18

extent RtoP in fact plays a role in the emergence and allocation of responsibilities. There is a clear overlap between RtoP and many existing (partly legal and partly political) principles and approaches. It has even been suggested that RtoP can be successful when it is not relied upon.28 The question is, then, what is the conceptual added value of RtoP compared to existing approaches? Second, there is the question concerning the legal status of RtoP. The Government of the Netherlands refers to it as a principle of international relations.29 But this may be too little; the principle certainly has a legal core. Human rights law, humanitarian law and, after the interpretation given by the International Court of Justice (ICJ) in 2008, also the Genocide Convention place obligations on states to prevent situations falling under these treaties.30 However, the scope of these obligations is uncertain. For example, do states in Europe (or the European Union (EU)) have a legal obligation to take action to prevent genocide and other mass atrocities in a state in, for example, Africa? A third set of questions relates to the balance between the responsibilities of the territorial state, on the one hand, and those of third states, international organisations and, indeed, ‘the international community’ on the other. RtoP is very much a responsibility that is shared by various actors. It is clear that the territorial state should act first and the UN should take the lead if things go wrong. But how, exactly, responsibilities should be divided between the UN and regional organisations and between third states (‘who should save Darfur?’) remains one of the intriguing mysteries surrounding the concept. A fourth set of questions relates to how responsibilities are to be shared and divided within the international community. This question arises in several ways. One concerns the relationship between the UN Security Council and regional organisations. It also arises within the category of third states and regional organisations. It is one thing to argue that all states have to act in case of mass atrocities, but this does not answer the question as to which state or organisation is to act. In the ICISS report, the appeal to the international community is a very general one, leaving us with an unallocated duty to protect.31 It also raises the question as to what the ‘international community’ should do. What type of measures can and should states take to achieve such prevention? What should peacekeepers do to contribute to protection? In short, while generally considered to be important and endorsed by states and international organisations, and despite having been the subject of earlier books,32 the principle of RtoP is still surrounded by uncertainty concerning its scope, the contents of its legal core and vagueness in terms of its moral and political underpinnings and implications. It is therefore of utmost importance to analyse the RtoP principle both from the perspective of different disciplines and from the perspective of different regions. In order for the RtoP principle to be truly helpful in tackling humanitarian crises in the world, more clarity on the principle, its foundations and practical implications is needed.

in tr od u cti on/ 19

The aim of this volume is thus first and foremost to clarify the nature and content of RtoP. In particular, it seeks to discuss and assess the extent to which the RtoP principle is grounded in international law, to explore the potential of the principle as a moral or political principle beyond that which is currently legally prescribed, and to examine how and the extent to which international institutions, including the EU and the UN, can use RtoP to contribute to the aim of protecting victims in cases of genocide, ethnic cleansing, crimes against humanity and war crimes. In this endeavour, the volume covers the disciplines of international law, international relations and moral philosophy.

4

The structure of this book

The present volume is divided into five sections, each seeking to provide a specific perspective to further our understanding of RtoP. It starts with a case study to set the scene of the debate and invite critical reflection: in her introductory contribution, Serena K. Sharma discusses the post-election violence that erupted in Kenya in 2007/8 and critically assesses the claim that it was the first successful application of RtoP. She specifically points to the idiosyncrasies of the Kenyan case, cautioning against its use as a blueprint for developing ‘best practices’, as well as against taking a short-term view when it comes to evaluating international efforts to apply RtoP. In Part I, four authors elaborate on the emergence of RtoP as a concept at the international level and the political context that has shaped its development. Edward C. Luck, currently Special Adviser to the UN Secretary-General on the Responsibility to Protect, sketches the ‘journey’ that has been undertaken so far along a number of mileposts. He reminds us of the roots of RtoP in the broader movements for human rights, humanitarian affairs, and human security, and points to a number of historic shifts marking the intellectual and political history of the concept, from humanitarian intervention to the 2009 Report of the SecretaryGeneral, ‘Implementing the Responsibility to Protect’.33 RtoP, in his view, is continuously gathering momentum and has become a movement rather than merely a concept, which in order to be viable will now need great commitment, inventiveness and prudence to transform its foundational ideas into feasible and practical implementation strategies. Mark Swatek-Evenstein then critically examines the history of RtoP, especially in relation to the concept of ‘humanitarian intervention’. Emphasising the goal of reframing the debate that was aimed at by proponents of RtoP, he deplores the lack of deep engagement with and embedding in the doctrinal history of humanitarian intervention in the main documents on RtoP. In response, he provides a detailed and critical discussion of this history, and contends that the current ‘new’ approach has not yet brought substantial change, given the ‘old’ problem of political will to take action when the values of humanity are at stake.

J uli a H o ff m an n and A ndré N o llka em per / 20

Marc Alexander Gionet subsequently looks more closely at the role of Canada, a state that played a critical part in the emergence of the concept. He shows the potential influence and effectiveness that a middle power can bring to international relations, by putting RtoP onto the international agenda and shaping the discourse and normative development of international law and policy. He also examines how subsequent domestic political changes have had an impact on Canada’s continuing commitment to the concept, and its leadership role in giving shape to the implementation of RtoP. Mapping the conceptual trail of RtoP within the forum of Security Council Open Debates on the Protection of Civilians (PoC) in armed conflict held between 1999 and 2010, Ludovica Poli analyses what she identifies as a ‘growing culture of protection’. Providing an overview of the main UN documents and activities related to the PoC, she reflects on the ongoing debates that are currently on the Security Council’s agenda, and the impact and potential added value of the conceptual framework of RtoP for these debates. In doing this, she also offers a more detailed understanding of the evolution of states’ concerns and expectations, as exemplified within these debates. Part II of the volume focuses on various contentious issues of international law relevant to conceptualising and operationalising RtoP. Jann K. Kleffner takes a closer look at the scope of the crimes that trigger RtoP. He investigates two core questions that arise from the inclusion of the crimes of genocide, war crimes, crimes against humanity and ethnic cleansing under the first pillar of RtoP: first, whether reliance on international crimes is indeed the most desirable approach; and second, whether the choice of and limitation to these specific crimes is convincing. A number of paradoxes, ambiguities and inconsistencies, such as those exemplified in the debate concerning the applicability of RtoP to the post-cyclone period in Myanmar, are identified and discussed. Hanna Brollowski analyses the obligations of third states arising under common Article 1 of the 1949 Geneva Conventions, showing that the moral and political principle of RtoP is firmly grounded in international law. Her analysis establishes that despite vocal criticism against RtoP grounded in arguments concerning the primary importance of state sovereignty, having signed treaties such as the four 1949 Geneva Conventions, states have already agreed to be bound by specific provisions. Specifically, she analyses common Article 1 as the basis of a shared responsibility between individual states and the international community in order to ‘ensure respect’ for the Geneva Conventions. Hanne Cuyckens and Philip De Man add a critical voice to the debate focusing on the (lack of ) conceptual clarity of and distinction between RtoP (as narrowed down to the four core crimes) and the related concept of conflict prevention at the UN and EU levels. Overlap and conceptual entanglement, they argue, are posing serious challenges to efforts to implement RtoP and put into question the added value of the doctrine. Their analysis focuses in particular on developments in the thinking on and practice of conflict prevention of the past two decades.

in tr od u cti on/ 21

Nina H.B. Jørgensen approaches the issue from the perspective of state responsibility, namely the rules governing the responsibility of states for internationally wrongful acts (as mirrored in the International Law Commission’s Articles on State Responsibility). The further evolution of the notion of state responsibility in the application of such rules to the wrongful acts of international organisations (as contained in the Draft Articles on the Responsibility of International Organisations) gives rise to interesting reflections on their implications for and overlap with what is being discussed under the heading of RtoP. The notion of ‘serious breaches’ of obligations emanating from jus cogens norms serves as a starting point for her analysis. This way, she positions the RtoP debate firmly within the existing (and emerging) framework of international law. Eliav Lieblich analyses the interaction between the concept of RtoP and the legal norms currently governing consensual intervention in internal armed conflicts; those situations in which intervention is invited or consented to by one of the parties to a conflict. After giving a brief overview of the historical developments in the law regarding consensual intervention, Lieblich analyses possible interactions between RtoP and the three aspects: (a) parties’ capacity to express consent, (b) the withdrawal of consent and (c) the interaction between consent and RtoP in situations in which the UN Security Council (fails to) act. In the final part of the chapter, she applies these insights to the case of Libya. Part III of this volume seeks to bring together a number of legal, political and ethical perspectives on RtoP, specifically in relation to the concept of humanitarian intervention. Is the concept distinguishable from its yet more controversial predecessor? Is there an added value in reframing this debate? Emanating from the notion that RtoP has not modified existing international legal rules concerning jus ad bellum, Diana Amnéus examines whether the emergence of RtoP has de facto led to an acceptance of a right to humanitarian intervention under international law. Applying the criteria and principles for military intervention as purported by RtoP, the author examines post-Cold War state practice of both authorised and unauthorised interventions through an ‘RtoP lens’. In order to be able to infer a potential customary law status of a norm on humanitarian intervention, she examines the responses of other states to such interventions. James Pattison sheds light on the debate from an ethical perspective, examining fundamental normative questions concerning agency and moral obligations. The author asks who are the actors that ought to intervene in RtoP situations in an effort to counter the problem of diffusion by clarifying the localisation and attribution of moral responsibility entailed in the notion of RtoP. He undertakes this examination from the perspective of what he terms a Moderate Instrumentalist Approach, taking the likely effectiveness of an actor, rather than authorisation by the UN or an actor’s motives, as the principal yardstick to evaluate the desirability of different options. Jennifer M. Welsh questions the suggestion made by many proponents of RtoP that under the new umbrella term, the doctrine of humanitarian intervention has

J uli a H o ff m an n and A ndré N o llka em per / 22

been eliminated from its scope. On the face of it, given the explicit allocation in the WSO Document of any residual responsibility to use force to the UN Security Council, this view would seem to be correct. Yet, the author argues that, on closer inspection, an overly narrow definition of humanitarian intervention eclipses consideration of instances where forcible interventions have been undertaken with humanitarian aims and where the consent of the target state has been ambiguous or even coerced. In Part IV the authors discuss international organisations and their respective approaches to RtoP. In addition to a discussion of the UN Security Council, three contributions will focus on the role that regional agencies can play in effectively operationalising RtoP, which has often been referred to – for example, in paragraph 139 of the WSO Document referring to the responsibility of the international community to operate ‘in accordance with [Chapter VIII] of the Charter’ – pointing to the UN’s relationship to regional agencies and arrangements. In the first contribution to this section, Anne Peters examines whether, in the light of RtoP, members of the Security Council would be legally obliged to authorise sufficiently robust action in RtoP situations. On the basis of the scenario of a veto by one of the permanent members of the Security Council in such a situation, the author argues that if RtoP were to be accepted as a binding legal principle, one of its consequences would be, at least, a procedural obligation to justify inaction. Doctrinal consistence, she argues, would in fact lead one to conclude that in RtoP situations, inaction or vetoing a proposal for a Security Council resolution authorising robust action would amount to an illegal act. Focusing on the organisation credited with pioneering international efforts at legislating on RtoP, Ademola Abass examines the AU’s standpoints and early applications of principles that form the basis of RtoP. He specifically investigates the Union’s principles of ‘non-indifference’, ‘non-interference’, and its right to intervene in its member states as contained in the AU’s Constitutive Act, and their impact on RtoP. In addition, the author discusses the pertinent question of whether, in RtoP situations, the AU’s Ezulwini Consensus and several allied instruments would allow regional organisations to act in the absence of robust action authorised by the Security Council. Considering the examples of AU ‘interventions’ in Kenya and Darfur, Abass reveals a number of pitfalls and the extent of progress when it comes to implementing RtoP regionally on the African continent. Turning towards the Association of Southeast Asian Nations (ASEAN), Noel M. Morada considers what role could be played by ASEAN in preventing mass atrocities that are included under the RtoP concept. His contribution pays specific attention to the political systems of member states and the overall political context, as well as institutional and cultural dynamics of the organisation that serve as a context for RtoP implementation in the region. Adding a vision from within the non-governmental sector, the author subsequently examines the role played by the Asia Pacific Centre for RtoP and perceptions of the concept by other regional civil society groups working in the area of conflict prevention and peace-building.

in tr od u cti on/ 23

In an in-depth analysis of the EU stance on RtoP, Jan Wouters, Philip De Man and Marie Vincent seek to contribute to clarifying the nature of the UN’s vision – as contained in specific RtoP documents, as well as the Charter – concerning the role that regional organisations should play in operationalising and implementing RtoP. The authors detail how the EU has so far positioned itself towards this emerging norm and how it conceives its own capacities to contribute to its further evolution and practical applications. While recognising the EU’s relatively strong formal commitment to RtoP, they deplore the organisation’s ‘slow, haphazard and equivocal’ reaction to the Libyan crisis. Part V seeks to explore in more detail some specific aspects of implementing RtoP, pointing out the urgent need to better understand the nature and roots of mass violence and genocide and to contextualise prevention efforts. Turning to a pertinent point within the legal debate around RtoP, which will be crucial for its implementation, Jennifer D. Halbert investigates the question of who would be the beneficiary of RtoP, and crucially whether ‘populations’ ought to be beneficiaries of RtoP, as stipulated in the WSO Document, or rather ‘civilians’, ‘citizens’ or ‘people’, as referred to by a significant majority of states during relevant UN debates, suggesting that international and state practice is inconsistent with the adopted documents on RtoP. This has far-reaching implications for the implementation of RtoP, risking an undue narrowing of its scope; one that would exclude, for example, a response to the pleas of child soldiers and refugees. More widely, this issue could have an impact on existing obligations under international human rights, humanitarian and criminal law, to which RtoP relates. Veronika Bílková subsequently investigates the relationship between RtoP and unilateral non-forcible measures taken by individual states, groups of states and international organisations that aim to prevent or stop RtoP crimes (such as, for example, political, diplomatic, economic or financial sanctions adopted outside the UN system). She concludes that there is a need for clarification of international law on these issues. Gentian Zyberi examines the potential role of the ICJ in the implementation of RtoP. After examining the ICJ’s jurisdiction in regard to mass atrocities, he examines the role that the Court has played and could play in regard to RtoP. Julia Hoffmann and Amaka Okany examine the role that incitement to commit genocide, especially via the mass media, plays in processes that precede the occurrence of mass violence, as well as relevant norms concerning the prevention of such incitement under international law. Contrasting this with the ex post facto approach that has been taken to international criminal prosecution of incitement until now, their central proposition is that for effective prevention, RtoP would have to be triggered at this early stage in escalation processes, when people are skilfully manipulated and publicly incited; and when timely, non-military interventions would still hold the promise of saving lives. They propose an international standard that could guide such efforts.

J uli a H o ff m an n and A ndré N o llka em per / 24

Francis M. Deng, currently the UN Secretary-General’s Special Adviser on the Prevention of Genocide, focuses our attention on the larger context in which genocide can occur and its root causes, emphasising the importance of identity construction and perception, and the complex and pivotal role of prevention. Providing a number of risk and trigger factors that increase the likelihood of genocide occurring and discussing ways of constructively managing diversity, the author provides a starting point for the development of an analytical framework for contextualising the debate. Finally, Daniel Jonah Goldhagen spells out a thought-provoking plan to end genocide, which will undoubtedly create controversy and unease among those accused of and confronted with what the author considers to be the continuing ignorance, incompetence and inexcusable complacency of our age when it comes to stopping genocide; and finally, not least among those critical of and concerned about the potential abuses of RtoP. Founded on what he terms ‘eliminationism’ as a guiding theoretical concept to analyse the behaviour of political leaders that leads to genocide, Goldhagen writes a forceful critique of an overly formalistic approach to prevention that is bound by legal hair-splitting and our blindness towards the fact that eliminationist measures are used as tools of purposeful, planned political strategy, rather than the result of ‘mere’ hatred. Instead, he advocates proactive – some might say belligerent – prevention, intervention and punishment strategies, including ‘wanted dead or alive’ measures against abusive leaders, executed by the world’s democracies under the leadership of the US. In the concluding observations, we draw together the main threads of the contributions and sketch some of the most salient current developments in order to identify the most important questions facing scholars engaged with the task of further developing the principle.

Notes 1 See the revealing analysis of the failures of the UN in the Report of the Secretary-General pursuant to General Assembly Resolution 53/35 (1999), UN Doc A/54/549. 2 Cited in International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) (ICISS Report) VII. 3 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN Charter). 4 Ibid, Preamble. 5 See Part IV of the present volume. 6 See eg Gionet’s contribution in the present volume, at 65. 7 ICISS Report (n 3). 8 See eg the International Coalition for RtoP . 9 The UNGA ‘2005 World Summit Outcome’ (2005) UN Doc A/60/L 1 (WSO Document) was adopted by the UNGA in October 2005 and subsequently affirmed by the UNSC in Resolution 1674, UN Doc. S/RES/1674 (2006) (28 April 2006).

in tr od u cti on/ 25

10 This is also confirmed in UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970/2011, where the UNSC recalls ‘the Libyan authorities’ responsibility to protect its population’, and in UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973/2011, where the UNSC reiterated ‘the responsibility of the Libyan authorities to protect the Libyan population’ and reaffirmed ‘that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians’. 11 Kleffner’s contribution in the present volume, at 85-91. 12 Report of the Secretary-General, ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677 (Implementing the Responsibility to Protect Report). 13 WSO Document (n 10), para 139. 14 Constitutive Act of the African Union (adopted 11 July 2000, entered into force 26 May 2001) art 4(h). 15 See eg Abass’s contribution in the present volume, at 213-236. 16 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277. 17 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3. 18 International Covenant on Civil and Political Rights 1966 (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171. 19 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90. 20 See Sharma’s contribution in the present volume, at 27-35. 21 UNSC Resolution 1970 and UNSC Resolution 1973 (n 11). 22 Advisory Council on International Affairs, ‘The Netherlands and the Responsibility to Protect: The Responsibility to Protect People from Mass Atrocities’ (No. 70, June 2010)

13. 23 Ibid at 15. 24 See Luck’s contribution in the present volume, at 39-46. 25 See Sharma’s contribution in the present volume, at 27-35. 26 See N Grono, ‘Briefing – Darfur: The International Community’s Failure to Protect’ (2006) African Affairs, 105/421, 621-631. 27 Secretary-General Defends, Clarifies ‘Responsibility To Protect’ at Berlin Event on ‘Responsible Sovereignty: International Cooperation For A Changed World’, UN Department of Public Information, UN Doc. SG/SM/11701 (15 July 2008). 28 See Luck’s contribution in the present volume, at 39-46. 29 Rijksoverheid, ‘Regeringsreactie AIV-advies: ‘Nederland en de Responsibility to Protect’ . 30 See eg Brollowski’s contribution in the present volume at 93-110. 31 See Pattison’s contribution in the present volume, at 173-182 32 See eg G Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Brookings Institution Press, Washington DC 2008); R H Cooper and J Voïnov Kohler (eds), Responsibility to Protect: the Global Moral Impact for the 21st Century (Palgrave MacMillan, New York December 2008); A Bellamy, A Responsibility to Protect: The Global Effort to End Mass Atrocities (Polity Press, Cambridge 2009); A Orford, International Authority and the Responsibility to Protect (Cambridge UP, Cambridge 2011); J Pattison, Humanitarian Intervention and the Responsibility to Protect (Oxford UP, Oxford 2010). 33 Implementing the Responsibility to Protect Report (n 12).

1

The 2007-08 PostElection Crisis in Kenya A Success Story for the Responsibility to Protect? Serena K. Sharma ‘The situation in Kenya constituted the “purest” version of responsibility to protect ... Within days, literally, the international community was on the move’.1 ‘[RtoP] ... has had a rough start … on a Kenyan model ... it might have a brighter future’.2

1 Introduction In the aftermath of the disputed national election on 27 December 2007, Kenya descended into its worst crisis since independence. After nearly eight weeks, the post-election clashes had claimed over a thousand lives, forced hundreds of thousands to flee from their homes, and brought extensive economic losses to the country and the region as a whole. As Kenya burned, scenes of ethnically-based killing evoked memories of neighbouring Rwanda, where 13 years earlier the international community had stood by and watched the slaughter of hundreds of thousands. Yet, the responses to these two situations could not have been more dissimilar. Almost immediately, the crisis in Kenya captured the attention of concerned international actors, united in their determination to halt the spiralling violence. A key component of the international response was the African Union (AU) sponsored mediation, led by former United Nations (UN) Secretary-General, Kofi Annan. After 41 days of intense negotiations, a compromise was reached between President Mwai Kibaki and Raila Odinga. The mediation process effectively forestalled the violence, established a government of national unity, and put in place an ambitious reform agenda to tackle the causes of the violence. Shortly after the Kenyan National Dialogue and Reconciliation Act was signed, commentators began to dub the international response to this crisis a ‘success story’ for the Responsibility to Protect (RtoP). Adopted by the UN General Assembly during the 2005 UN World Summit, RtoP involves a subsidiary responsibility of the

Se r en a K. Shar m a / 28

global community to protect populations from conscience-shocking human rights violations when state authorities prove unable or unwilling to do so. Prompted in no small part by the failure to act in Rwanda, the speed and scope of the international response to Kenya’s crisis seemed to epitomise the spirit and intentions of RtoP. Consequently, the resolution of the Kenya crisis has featured in plans to implement RtoP within the UN system.3 Given that RtoP was devised in response to previous instances of international failure, the importance of locating a positive case study cannot be overemphasised. One of the consequences of the drive to locate an affirmative example for RtoP is that it has left little room for critical analysis of RtoP’s ‘first test case’. With that in mind, this chapter aims to disentangle the notion of Kenya as a success story for RtoP. The designation of this case as an unqualified success not only overlooks some of the factors that are highly specific to this case - and therefore not amenable to duplication - but it also neglects some of the compromises made in the 2008 Agreement. As will be argued, with the effects of mediation still playing out on the ground, the success attributed to this situation, and the attendant notions of the case serving as a model for RtoP, may be premature.

2

The 2007-08 Post-Election Crisis and Mediation

As Kenyans prepared to go to the polls in the fourth national election since the country’s return to multiparty politics, there were high hopes for a free and fair election. While pre-election polls suggested an immensely tight race between incumbent Mwai Kibaki of the Party of National Unity (PNU) and Raila Odinga of the Orange Democratic Movement (ODM), the peaceful transfer of power in the elections of 2002 nurtured a sense of optimism ahead of the 2007 polls. Initial results appeared to corroborate these expectations, as election observers reported satisfactory conduct from polling stations, and record-level voter turnout. Such hopes were, however, quickly dashed as irregularities manifested in the tallying and compiling of results. As members of the two rival parties disputed the returns from key constituencies at the Kenyatta International Conference Centre in Nairobi, delays of official results served only to fuel rumours of election fraud throughout the country. On 30 December 2007, a beleaguered Samuel Kivuiti, Chairman of the Electoral Commission of Kenya (ECK), announced Kibaki’s re-election with 4,584,721 votes to Raila Odinga’s 4,352,721 – a statement he later claimed to have made under pressure.4 The announcement was followed by protests from the ODM camp, and a hastily organised swearing-in ceremony three days ahead of schedule. By the time Kibaki had completed his inaugural address, rioting had already begun to engulf the country. In a statement released on the day of Kibaki’s inauguration, the European Union (EU) monitoring group – the largest international presence during the elections

T h e 2007-08 Pos t-E lectio n Crisis in Kenya / 29

– voiced its concerns that the ECK ‘had not succeeded in establishing the credibility of the tallying process to the satisfaction of all parties and candidates in the presidential race’. This finding was reiterated in the official EU monitoring report: ‘some doubt remains as to the accuracy of the result of the presidential election as announced today’.5 Similar concerns were voiced by the Kenyan Election Domestic Observer Forum, which found both sides equally liable for rigging the election. To add to the mounting confusion, the US State Department issued a statement congratulating Kibaki on his re-election, while urging both sides to accept the results.6 This statement was, however, subsequently withdrawn the following day amid reports of escalating violence. Over the course of two months, an estimated 1,200 Kenyans lost their lives as violence swept across the country. While some of the violence emerged spontaneously in response to the fraudulent elections, there were also signs of organised violence against PNU supporters, and evidence of incitement, particularly in the Rift Valley. Kenya’s vernacular FM stations played a key role in inciting ethnic hatred both during the electoral campaign, and in its aftermath. Nairobi’s Uhuru Park became contested territory, as security services enforced deadly shoot-to-kill policies. Instances of police brutality were, however, most severe within the slum areas in and around the capital. As the violence continued unabated, individuals engaged in reprisal killings in certain parts of the country, namely Naivasha and Nakuru. Prominent local militia, including the notorious Mungiki sect, operated in full force during this time, while ordinary civilians used the absence of law and order to riot, loot and rape. Among the associated consequences of violence were widespread levels of internal displacement. Estimates suggest up to 500,000 people were forced to flee from their homes, in a country already suffering from massive displacement. As the country continued to spiral downward, the prospect of civil war appeared imminent. In the absence of any reprieve in the scale and scope of violence, the AU President, John Kufuor, scrambled to assemble a framework for mediation. Initially, the only matter both parties could agree on was a refusal to negotiate. Raila’s supporters objected to talks with Kibaki, on the basis that this would effectively legitimise the stolen presidency. At the same time, the PNU resisted demands to negotiate, arguing that any grievances pertaining to the elections should be settled in the Courts. Given the absence of an impartial judiciary, the ODM side vehemently rejected this suggestion. After three successive attempts to kick-start mediation efforts, the rival parties eventually agreed to an AU-appointed Panel of Eminent African Personalities, which included Kofi Annan, Graça Machel and Benjamin Mkapa. By the time the mediators arrived on the scene, tensions were extremely high, in no small part due to Kibaki’s announcement of key cabinet appointments. Given the intensely acrimonious relationship between the two principals, four negotiators were selected by the principals to represent their respective sides.7

Se r en a K. Shar m a / 30

With key input from Kenya’s vibrant civil society groups, the mediation team expeditiously agreed to an agenda for negotiations.8 The agenda included the following issues: 1. Stopping the violence and restoring fundamental human rights; 2. Addressing the humanitarian crisis and promoting national reconciliation; 3. Overcoming the political crisis; 4. Developing longer-term strategies for durable peace. Of the four issues, the first two proved the easiest to resolve. Agenda item 3, the resolution of the political crisis, was by far the most contentious. Apart from getting the parties to agree not to revisit the election results – a move which allowed the team to focus on forward-looking scenarios – finding a political arrangement acceptable to both camps proved to be an exceptionally gruelling exercise, particularly with respect to the issue of prime-ministerial power. Annan’s considerable experience with peace negotiations was essential in navigating through this part of the process. Key points in overcoming the impasse included a retreat at the Kilaguni Lodge in Tsavo National Park; Kofi Annan’s periodic and decisive engagement with the principals; and, when negotiations appeared to be deadlocked, a temporary suspension of the talks. Throughout the mediation, a number of international actors added weight to the process by issuing public statements at critical junctures and applying behind-thescenes pressure. The final chapter of the mediation involved a five-hour marathon between the principals, Benjamin Mkapa and Jakaya Kikwete. The session was presided over by Annan, who was determined not to leave without an agreement. On 28 February 2008, Mwai Kibaki and Raila Odinga signed the National Accord and Reconciliation Act and The Principles of Partnership of the Coalition Government. There is certainly little doubt that the swift and sustained response of international actors in this crisis was an improvement upon previous cases. Without the determined efforts of the international community, Kenya could have proceeded down the path of civil war. Predictably, the effective forestalling of violence in Kenya has led to considerable interest in this case. In a subsequent interview reflecting on the situation in Kenya, Kofi Annan indicated that RtoP was the lens through which he viewed the crisis: ‘I saw the crisis in the RtoP prism with a Kenyan government unable to contain the situation or protect its people ... I knew that if the international community did not intervene, things would go hopelessly wrong ... Kenya is a successful example of RtoP at work’.9

3

Unpacking Success in the Kenya Case

The notion of Kenya serving as a model case for RtoP tends to imply that the global response derived from RtoP considerations. While the determination to act

T h e 2007-08 Pos t-E lectio n Crisis in Kenya / 31

in Kenya came down to a host of factors, RtoP was but a small piece of a larger puzzle.10 Underlying the drive to halt atrocities were a combination of economic and political interests, accompanied by the reality that ‘Kenya was too important to too many actors to just stand by and watch’.11 Moreover, in terms of security interests, Kenya was a close ally and partner of the US in the ‘War on Terror’.12 International interest in this case was further heightened by the fact that Nairobi was home to UN Headquarters in Africa – the hub of all major operations in the region. Notwithstanding the difficulties of replicating the unique circumstances of this case, a further question to consider is whether it is a case worth replicating. The attribution of success to this crisis tends to treat the violence in 2007-08 as largely unanticipated. Indeed, one of the most widely expressed sentiments following Kenya’s post-electoral crisis was a genuine sense of shock over what had transpired. With sound economic indicators, including consistently high growth rates, not to mention a flourishing tourism industry, Kenya had long been considered the most stable country in Eastern Africa. For government officials, aid workers and journalists, Kenya remained a favoured destination in between assignments to more troublesome corners of the continent. The popularised image of Kenya masks the realities of a country rife with poverty, gross levels of inequality, social and economic exclusion, and systematic corruption. These underlying realities continued to elude commentators in the wake of the crisis, as international media coverage elected to treat the violence as a ‘tribal’ conflict between the rival candidates’ ethnic groupings: the Kikuyus and the Luos. While ethnic affiliation has played a prominent role in the history and politics of Kenyan society since colonial times, the tendency to equate the crisis to a conflict over ethnicity is to both oversimplify and misunderstand the nature and underlying causes of the violence that swept throughout the country. What transpired in 2007-08 was a result of long held grievances against the country’s political leadership over the persistent failure to overhaul the Kenyan state. Among the issues in contention was the need to implement a set of reforms, which would allow for a more equitable distribution of land, economic opportunity, and access to state resources. The potential for these issues to ignite into violence had already been demonstrated by clashes in the Rift Valley throughout the 1990s,13 in which casualty and displacement figures roughly parallel the levels of violence reached in the 2007-08 crisis. While many observers looked to the peaceful transfer of power in 2002 as an indication of progress, this assessment overlooked the platform of promised reform, which enabled the National Rainbow Coalition (NaRC) to unseat Daniel Arap Moi. In spite of the initial euphoria that accompanied the end of 24 years of authoritarian rule – no doubt spurred by promises of change – key planks of the NaRC’s reform agenda eventually began to unravel. Assessments of the 2005 referendum have proven to be similarly misguided. While the defeat of the government’s constitutional bill has been lauded as a further indication of Kenya’s embrace of democracy, this perspective overlooks how a negative vote in the constitutional ref-

Se r en a K. Shar m a / 32

erendum actually helped Kibaki consolidate his position by maintaining the status quo. Therefore, rather than serving as a sign of progress, the referendum was, as Nic Cheeseman has argued, ‘a two-year long preamble’14 to the 2007 crisis. In conjunction with the mounting levels of discontent in the aftermath of the 2002 polls were more proximate signs of trouble preceding the elections of 2007. In the months prior to the polls, up to 600 people were killed in pre-election clashes in the Mt. Elgon region and around Nairobi. Another development that should have set off alarm bells both domestically and abroad was Kibaki’s reengineering of the supposedly impartial electoral commission. Observers also turned a blind eye to the increasingly vitriolic tone of the electoral campaign and the findings of the African Peer Review Mechanism 2006 report on Kenya, which drew attention to marginalisation, corruption and the absence of accountability in Kenya.15 In spite of the missed opportunities to act in the pre-crisis phase, the fact that violence broke out provided yet another occasion to address the underlying elements of instability in the country. Indeed, by conceding how deeply rooted the causes of the post-electoral violence were, the mediation process carried significant prospects for fundamental change, as Kofi Annan asserted at the outset of negotiations: ‘The Panel of Eminent [African Personalities] are committed, committed to working with the people of Kenya in finding a solution to the current crisis – not a patch-up job, but a solution that will deal with the root causes of some of the issues’.16 When the time came to address longer-term strategies for durable peace (Agenda 4), however, the process was handed over to Ambassador Adeniji of Nigeria. Although the intention of the mediation had been to put in place a structure for reform, the Agreement left little incentive to address the underlying causes of the violence, which as noted above, derive in large measure from past attempts to implement reforms. Indeed, beyond the items already agreed to from the initial agenda, nothing significantly new was added, and much of the momentum from phase one of the mediation was lost.17 As one observer close to the mediation has noted: ‘a machete chopped Agenda 1-3 from Agenda 4 ... it amounted to two entirely different mediations’.18 Progress on addressing the underlying causes of the conflict has expectedly moved in fits and starts. On the one hand, the adoption of a new constitution in the wake of the August 2010 referendum has breathed new life into reform efforts. Yet, the effects of the post-election violence are still quite real for many Kenyans. This is particularly so for the countless numbers of people that remain internally displaced. The latest monitoring report by the Kenyan National Dialogue and Reconciliation (KNDR), the independent body charged with assessing progress on the reform agenda, issued a scathing critique of Kenya’s political leadership for the failure to move faster on key issues.19 Three years after the crisis, not one arrest has been made in relation to the postelection violence, nor has the government assumed any responsibility for its role. Failure to establish a Special Tribunal, mandated by the Waki Commission on PostElectoral Violence, has now yielded to investigations by the International Criminal

T h e 2007-08 Pos t-E lectio n Crisis in Kenya / 33

Court (ICC). While the special prosecutor has issued indictments for six individuals involved in the violence, and robust witness protection legislation has been signed, the government has continued its campaign to defer the work of the Court. In any event, ICC involvement is not a panacea for the failure to set up a Special Tribunal, given the different levels of responsibility involved in the post-election violence. A different set of issues has plagued another key component of Kenya’s machinery for redress: the Truth Justice and Reconciliation Commission (TJRC).20 In terms of substantive issues, there has been criticism over the scope of the TJRC’s mandate, which encompasses: human rights violations, economic crimes, land issues, marginalisation, ethnic violence and sexual violence between 12 December 1963 and 28 February 2008. Concerns have also been voiced over the TJRC’s approach to amnesty, its lack of financial independence, and its system of appointments. Most contentious, however, are the allegations that have been brought against the Chair, Bethuel Kiplagat, for his alleged involvement in cases that might be brought before the TJRC – thereby creating a conflict of interest. Refusing to heed calls to resign, the TJRC process is moving forward; yet, the findings of the Commission will be of little consequence as the institution has lost credibility in the eyes of Kenyans. When considering the nature of the controversies that have plagued the Commission, one cannot help but infer that this process has been deliberately designed for failure. The continued lack of justice in the Kenyan context raises crucial questions about the nature of the 2008 Agreement, and the extent to which issues of impunity and accountability may have been sidelined. On the one-year anniversary of the 2008 Agreement, a report by the Stanley Foundation acknowledged that impunity and accountability could have been dealt with more effectively during the mediation.21 Though recognising the structural roots of the crisis, the mediation process ended up being primarily a political settlement. As Castro Wesamba has observed: The mediation focused on Odinga and Kibaki, and a lot of resources were put into the key political actors. These political actors were not representing the grievances of the people who were rioting and killing. They were representing their own political interests: ‘What am I going to be. Am I going to be President, am I going to be the Prime Minister, am I going to be the Foreign Minister?’ Nobody was asking: Will that person get the land? Will jobs be created? Will there be an independent judiciary? Will there be justice? Will there be accountability?22

4

Conclusion: Implications for RtoP

Viewed as an exemplary case for the implementation of RtoP, the enthusiasm surrounding the resolution of the Kenya crisis may account for the noticeable absence of critical reflection on this case and its association with RtoP. In an initial effort to

Se r en a K. Shar m a / 34

overcome this oversight, this chapter has sought to disentangle the idea of Kenya as a success story for RtoP. As has been demonstrated, the extent to which this case may serve as an instance of RtoP best practice varies depending on how we elect to measure success. If we are to take the most straightforward understanding of success – pushing the pause button on the violence – the response to the crisis was certainly successful. If, however, success is meant to imply progress on longer-term issues, making a judgement is complicated, as the effects of the mediation are still playing out. What is perhaps most significant from the perspective of RtoP are the apparent tensions between the two understandings of success alluded to above. Whereas the immediate goal of ending the violence seemed to necessitate some form of power sharing, this outcome has not been easy to reconcile with addressing the underlying causes of the violence. Indeed, in certain respects, the power-sharing deal has come at the expense of making progress on issues of impunity and accountability – both of which are seen as crucial for curbing future episodes of violence. Reflecting on the situation in Kenya, Francis Deng has made the following observation: ‘We keep saying rhetorically that there is no conflict between justice and peace, and that the two are complementary. In reality when you have a situation where the people who are to be held accountable are in positions of power, it’s not easy’.23 As the above analysis has demonstrated, the significance of the Kenya case resides less in the answers it provides and more in the questions it raises for RtoP. As the norm continues to develop, RtoP advocates must decide on the factors that constitute a successful RtoP situation. Events in Kenya will continue to be an important point of reference for those embarking on this task.

Notes 1 D Steinberg, ‘Responsibility to Protect: Coming of Age?’ (2009) 1(4) GR2P 435. 2 R Cohen, ‘How Kofi Annan Rescued Kenya’ (2008) 55(13) NYRB 48. 3 Report of the Secretary-General, ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677, 9. 4 I Ongiri, ‘I acted under pressure, says Electoral Commission Chairman Kivuitu’ Human Rights House Network (Nairobi, 2 January 2008) accessed 12 April 2011. 5 European Union (EU) Election Observation Mission, Final Report General Election Kenya – 27 December 2007 (Brussels, 3 April 2008) < http://www.eueomkenya.org/ Main/English/default.html> accessed 12 April 2011. 6 Deputy Spokesman T Casey, ‘United States (US) State Department Statement on Elections in Kenya – US asks candidates, supporters to accept the Electoral Commission’s results’ (27 December 2007) accessed 12 April 2011. 7 For the PNU side: Martha Karua, Sam Ongeri and Mutula Kilonzo. The ODM side included: Musalia Mudavadi, William Ruto and Sally Kosgei.

T h e 2007-08 Pos t-E lectio n Crisis in Kenya / 35

8 Among the key civil society groups was the Concerned Citizens for Peace (CCP), which was formed spontaneously in response to the post-election violence. Based at Nairobi’s Serena Hotel, the CCP had the advantage of proximity to the negotiations, and met with Kofi Annan’s team throughout the process. For an account of the CCP initiative, see: G Wachira, Citizens in Action: Making Peace in the Post-Election Crisis in Kenya – 2008 (NPIAfrica, January 2010) accessed 12 April 2011. 9 Kofi Annan, cited in R Cohen, ‘How Kofi Annan Rescued Kenya’ (2008) 55(13) NYRB 51. 10 M Preston-McGhie and S K Sharma, ‘The Responsibility to Protect in Kenya’ in I Cotler and J Genser, The Responsibility to Protect: The Promise of Stopping Mass Atrocities in Our Time (Oxford UP, Oxford, forthcoming November 2011). 11 Interview with Francis Deng, United Nations (UN) Special Adviser on the Prevention of Genocide (New York, 13 July 2010). 12 It was arguably the wish to maintain this close relationship that initially prompted the US to hastily congratulate Kibaki on his re-election. 13 D Anderson and E Lochery, ‘Violence and Exodus in Kenya’s Rift Valley, 2008: Predictable and Preventable?’ (2008) 2(2) JEAS 328. 14 N Cheeseman, ‘The Kenyan Elections of 2007: An Introduction,’ (2008) 2(2) JEAS 171. 15 African Peer Review Mechanism (APRM) 2006 report cited in B Manby, ‘Was the APRM process in Kenya a Waste of Time? Lessons that Should be Learned for the Future’ (Open Society Institute AfriMAP, April 2008) accessed 12 April 2011, 1-4: ‘There is a need for a healing of the nation. The process of national healing and reconciliation is unlikely to proceed as long as society is still polarized. In addition, without also addressing past crimes, corruption, marginalisation and poverty, it is unlikely that reconciliation can be achieved’. 16 Transcript of Elements of a Press Encounter by H E Kofi Annan (Nairobi Serena Hotel, 26 February 2008) accessed 12 April 2011. 17 G M Khadiagala, ‘Forty Days and Nights of Peacemaking in Kenya,’ (2008) 7(2) JAE 4. 18 Interview with UN official (New York, 12 July 2010). 19 Kenya National Dialogue and Reconciliation (KNDR) Monitoring Project, Report by South Consulting (October-December 2009) accessed 12 April 2011. 20 Although a TJRC process had been under consideration in Kenya well before 2007-08, the post-election violence gave an incentive to revisit this debate. Nevertheless, the TJRC that was finally delivered in 2008 has been the subject of one controversy after another. 21 Kofi Annan Foundation, ‘The KNDR: One Year Later – Report of the Meeting’ (Geneva, October 2009) accessed 12 April 2011, 10. 22 Interview with Castro Wesamba, UN Political Affairs Officer, Office of the Special Adviser on the Prevention of Genocide (New York, 13 July 2010). 23 Interview with Francis Deng, United Nations (UN) Special Adviser on the Prevention of Genocide (New York, 13 July 2010).

Part I The Emergence of the Responsibility to Protect

2

The Responsibility to Protect: The Journey Edward C. Luck

The prospects for moving from principle to practice are more promising than ever before, but many doubts and uncertainties remain. The path ahead is neither certain nor easy. As the official at the United Nations (UN) charged with moving from words to deeds by developing the conceptual, political and institutional dimensions of the Responsibility to Protect (RtoP), I can attest to how urgently we need the best critical thinking on these matters from around the world. Your ideas, analysis and suggestions are most welcome as together we work to carve a sensible and successful path forward through largely unexplored and uncharted territory. Let me begin today by making some observations about the origins and evolution of RtoP to date, about where we are at this juncture, and finally about the immediate steps ahead. At the outset, let us recall that RtoP was the product of human experience, not political theory. It is, therefore, an immensely practical idea. The goal is changed behaviour, not better strategies, debates or resolutions. All of the latter may be required to produce the former, but they are not ends in themselves. So we should not take too much comfort from the political and bureaucratic progress we seem to be making in New York. Eventually, progress will be measured in capitals and in the field, not in UN conference halls. Stopping atrocity crimes is a moral imperative, not a policy preference. We should not be condemned to repeat the greatest sins of the twentieth century in the twenty-first. We need to make sure that there will be no more Holocausts, Cambodian killing fields, Rwandan genocides or Srebrenicastyle mass murders. When it comes to these ends, we should all be on the same side of the table. Increasingly, that seems to be the case. Among the UN’s 193 Member States, there are legitimate and healthy differences on means, even within a broadbased consensus on what we are trying to achieve. The RtoP is an important innovation, not a radical departure. It is based on the existing body of law, not on novel theories. To the extent possible, the SecretaryGeneral’s implementation strategy seeks to use existing tools, procedures and institutions, rather than invent new ones. By combining established elements in fresh combinations, the whole has the potential to be much more than the sum of its parts. RtoP compels us to think in new ways about very old problems and about how to adapt current machinery to higher purposes. It is worth recalling, as well, that RtoP was not the invention of any government or group of governments. Civil society was – and is – far in the lead, with govern-

Edwar d C . L uc k / 40

ments and inter-governmental bodies scurrying to catch up. This has been, in other words, a bottom-up, not top-down, enterprise. The birth and growth of RtoP owes a great deal to the broader movements for human rights, humanitarian affairs and human security that spawned it. We should pay tribute, as well, to pioneering norm entrepreneurs – Bernard Kouchner, Francis Deng, Gareth Evans and Kofi Annan – even as we seek to build on their foundational work. International institutions, whether the Economic Community of West African States (ECOWAS), the African Union (AU), or the UN, continue to serve as platforms and facilitators. But now we must ask, insistently: who will be the leading actors, the doers, as we move to implementation and to making a real difference in people’s lives? As I have learned, and relearned, the conceptual, political and institutional/ operational dimensions of RtoP are deeply and irrevocably intertwined. We cannot achieve any one of them without the others. Historical narratives matter in that regard: who invented and championed RtoP? Why? Whose interests and contributions does it serve? Is RtoP about Rwanda or Iraq, power or principle? Who owns it and can it be universalised? These questions matter. It is essential that the UN frame the debate and keep it focused, as it would be highly risky to leave those tasks to individual Member States. In moving forward, we should understand where RtoP has been and why its evolution has taken the course it has. Four dates were critical: 1999, 2001, 2005 and 2009. Like a family lineage, RtoP was the product of two quite distinct intellectual traditions. The humanitarian intervention track, associated with Bernard Kouchner’s advocacy of the right to interfere (or intervene) in the 1980s, led to a series of speeches by Secretary-General Kofi Annan in the late 1990s, culminating in his well crafted but ill-fated speech to the General Assembly in September 1999. On a less-heralded track, Francis Deng and others developed the notion of sovereignty as responsibility in the mid-1990s. It was embraced first by ECOWAS and then the AU in Article 4(h) of its 2000 Constitutive Act. The Organisation of African Unity’s credo of non-interference was replaced by the AU’s emphasis on non-indifference. All of this, it is worth recalling, preceded the coining of the phrase ‘responsibility to protect’ by the farsighted International Commission on Intervention and State Sovereignty (ICISS) report in 2001. In a historic conceptual breakthrough, Gareth Evans, Mohamed Sahnoun and their fellow ICISS commissioners put all of the pieces together and wrapped them in a concise and compelling RtoP package. They posed a ‘prevention, response, rebuild’ paradigm, articulated guidelines for the use of force, and underscored both the responsibilities and the limitations for Security Council action. Importantly, they planted RtoP seeds around the world with a series of regional meetings and found a ready partner in Secretary-General Annan, whose High-level Panel on Threats, Challenges and Change and his own In Larger Freedom report adopted most of the ICISS package of proposals. With such an ambitious build-up, was the heavily nuanced text adopted by the heads of state and government at the 2005 World Summit little more than ‘RtoP

Rt o P: T he J ou r ney / 41

lite’, as some critics suggested? To this author at least, paragraphs 138-140 of the 2005 World Summit Outcome Document (the WSO Document) actually constituted a step forward in several substantive respects, even beyond the minor miracle of gaining a consensus on RtoP in the most diverse and high-level political gathering imaginable. Limiting the scope of protection to four types of mass atrocity crimes made eminent good sense, as the ICISS report was a bit vague about where the limits of protection would lie. In policy and institutional terms, one could readily imagine developing coherent responses to this range of crimes, something that would inevitably be lost if matters such as natural disasters or climate change were added. By saying that protection should be afforded to all populations in one’s territory, not just to citizens, as the ICISS report suggested at points, the WSO Document avoided fuelling the dangerous divisions of identity politics that afflict some troubled societies. The world leaders agreed to prevent the incitement of such crimes, adding to the prevention toolkit and flagging early acts that can often be seen or heard by international monitors. Their emphasis on the potential role of regional partners was also most welcome. Though some may have seen the reference in paragraph 139 to the General Assembly’s ‘continuing consideration’ of RtoP as an effort to dilute the Security Council’s control of the concept, I see it as an opening to explain Secretary-General Ban Ki-moon’s strategy in more detail, to get practical suggestions from the membership on how to move forward, and to give all of the Member States some sense of ownership of the principle as it evolves. For instance, the 2010 informal interactive dialogue in the General Assembly on ‘early warning, assessment, and the responsibility to protect’ addressed a number of issues that had been, until recently, quite controversial yet are critical to triggering an effective UN response to the massive failure to protect.1 In 2011, the Assembly’s dialogue on the implementation roles of regional and sub-regional arrangements was similarly productive. Likewise, the inclusion of paragraph 140 on support for the work of the Special Adviser on the Prevention of Genocide in the section of the WSO Document on RtoP provides tacit support for the Secretary-General’s intention to establish a joint office on RtoP and genocide prevention. The exclusion of any reference to guidelines (beyond the Charter) for the use of force, on the other hand, underscores the importance of using the full range of tools available under Chapters VI, VII and VIII of the Charter and of involving all of the UN’s principal organs. The Security Council remains central to any effective RtoP strategy, of course, but its place should not be seen as exclusive given the need for prevention, assistance and capacity-building as well. So, in my view, the bottom line is that the 2005 approach is more operational, provides more to work with in terms of policy choices, and is more likely to generate and sustain broad political support than the ICISS version of four years before could have. The January 2009 report that I drafted for Secretary-General Ban Ki-moon was based on a careful reading, indeed a deconstruction, of paragraphs 138-140 of the 2005 WSO Document.2 It was evident that the heads of state and government had

Edwar d C . L uc k / 42

decided not to employ the three-part structure – prevention, response, rebuild – used in the ICISS report. Rather than utilising a temporal model to describe a continuum of tasks, their distinctions were based more on who should assume responsibility for each set of tasks. The most direct and powerful language, in paragraph 138, was the unambiguous commitment of the world leaders to protect populations on their territory by preventing the four crimes or their incitement. As the cornerstone of RtoP, it should be pillar one. The international community could not – and should not – undertake to substitute for the state in all or even most cases. Instead, its first priority should be to hold states and leaders accountable for fulfilling this solemn commitment. The second pillar – and this had to be teased out of the document because elements of it are scattered throughout the three-paragraph text – is the international community’s responsibility to assist and help the state to meet its RtoP obligations. Our goal is to help states succeed, not just to react when they fail. The focus is to be on RtoP-oriented development, capacity building and peacebuilding as preventive measures, not just on post-conflict rebuilding. In that regard, it is perhaps more than coincidental that RtoP and the Peacebuilding Commission were two of the major innovations adopted at the 2005 World Summit. The third response, pillar is to employ the whole raft of tools available under Chapters VI, VII and VIII of the Charter. As paragraph 139 underlines, the international and collective response to the mass manifest failure to protect should be ‘timely and decisive’. While sticking closely to the letter and spirit of the WSO Document, the 2009 report laying out Secretary-General Ban Ki-moon’s implementation strategy did offer a few new wrinkles as well. Recognising that states are not always the problem and can sometimes be part of the solution, the report calls for extending the same obligations to armed groups and non-state actors, some of which have been responsible for serious atrocity crimes. Likewise, states should be responsible for protecting populations in whatever territory they occupy, just as within their borders. The Secretary-General called for a doctrine of early and flexible response, tailored to the circumstances of each situation. There are to be no rigid templates or pre-ordained sequences. Force might not always be the last resort, if a discreet, targeted and internationally authorised application earlier could save lives and nip an unfolding atrocity in the bud. Under its second pillar on assistance, the strategy includes the preventive deployment of peacekeepers, as in the Former Yugoslav Republic of Macedonia, or the coercive but consent-based use of force under Chapter VII, as in Sierra Leone, to assist the state in resisting armed groups that are committing the atrocities. The Secretary-General’s approach also put greater emphasis on the potential roles of regional and sub-regional actors, as well as of neighbouring states and of national and transnational civil society. His 2011 report acknowledges that each region will proceed at its own pace and in its own way.3 That said, two things are critical: 1) that they all keep moving forward on implementing the relevant provisions of the WSO Document and 2) that RtoP standards remain universal and are not diluted or diverted. Over time, it is argued, training programmes, lessons-

Rt o P: T he J ou r ney / 43

learned case studies, and region-to-region learning networks can make a difference in terms of bringing peer pressure to bear and of encouraging the internalisation of RtoP values within governments and societies. Ultimately, such a process could be the most effective way of discouraging such crimes in the first place. In sum, we are en route from theory to practice, from a virtual RtoP to its embodiment in policy, procedure and practice. At this stage, we need to balance impatience and prudence, moving toward full implementation at all deliberate speed. We worry that an RtoP emergency will occur before we are up and running, given the slow pace of building a global consensus on the Secretary-General’s strategy and plans. And we need to take care not to promise more than we can deliver. Expectations matter. Among the early institutional priorities will be mainstreaming efforts to prevent RtoP crimes in the work of the UN system, particularly in terms of operationalising the first two pillars of the Secretary-General’s strategy. System-wide, we need to get our standards, working methods, processes and procedures right. We need to achieve cross-sectoral, inter-agency and interdepartmental coherence. Francis Deng, the Special Adviser on the Prevention of Genocide, and I are working closely together to find ways not only of establishing a joint office but, more importantly, of developing a common methodology for preventing genocide and the other three crimes. We believe that this makes sense for policy and functional reasons, as well as for bureaucratic, financial and efficiency ones. In that regard, we are considering how the existing framework of analysis for the prevention of genocide could be modified to apply to all four crimes. We are starting to look at specific cases together, as well as developing proposals for regular budget and extra-budgetary support.4 The early warning functions of the existing office will be bolstered and expanded to cover all four crimes, building on its efforts to draw information from throughout the UN system and stressing the need for enhanced assessment capacities and for early understanding, not just early warning, of situations of concern. In emergency situations, when ‘national authorities are manifestly failing to protect their populations’ from these four crimes, as paragraph 139 puts it, the Secretary-General has decided that he will ask one or both Special Advisers to urgently convene the key department and agency heads to sort out his primary policy options, with their respective pros and cons, in order to facilitate appropriate, timely and effective action by the international community. Such stark options papers have been rare in a consensus-oriented Secretariat, so these new procedures could prove quite significant in at least ensuring a hearing at the highest levels for a range of policy choices. In the end, of course, the critical factor is political will. None of the steps described above would guarantee that Member States are prepared to take the kind of ‘timely and decisive’ response envisioned in paragraph 139, especially in the more difficult cases. When some are willing to act, coercive measures under Chapter VII are likely to be controversial, even when authorized by the Security Council, as has been the case in Libya.

Edwar d C . L uc k / 44

Though there has been gratifying progress over the past few years in gaining broader and deeper support for RtoP principles among the Member States, much work still needs to be done. Along with our NGO partners, prominently including the Global Centre and the International Coalition in New York, the Asia-Pacific Centre in Brisbane, and many others in national capitals, we are engaged in an extended conversation with the Member States – sceptics as well as proponents – about how to implement the responsibility to protect as fully and as consistently as possible. As always, we are listening as much as preaching, for we will not be able to prevent such atrocities unless Member States internalise RtoP principles in their domestic policies, institutions and practices and take full ownership of the Secretary-General’s strategy. As noted above, in 2010 the General Assembly held an informal interactive dialogue to address the Secretary-General’s report on ‘Early Warning, Assessment, and the Responsibility to Protect’. In 2011, the Assembly held a similar dialogue on how regional and sub-regional arrangements are contributing or could contribute. In each case, the General Assembly dialogue was informed by a report that I prepared for the Secretary-General. Our goal was – and is – to keep all of the Member States, through the Assembly’s ‘continuing consideration’ role under paragraph 139, engaged in a mutual exploration of the way ahead. Given the Security Council’s responsibilities under Chapter VIII, as well as under Chapters VI and VII, it will be important to bring it back into the conversation soon as well. Will these improvements in the political atmosphere and in procedural arrangements at the UN be enough to prevent another mass atrocity on the scale of the Rwandan genocide? It remains to be seen. There are no guarantees or sure-fire institutional fixes. But it is worth recalling that the very achievement of the 2005 World Summit agreement on RtoP reflected a fundamental shift in political values and attitudes. RtoP is the product of a rising global concern about human rights, humanitarian affairs, sexual violence and the protection of civilians in armed conflict, themes that the Secretary-General addressed in his Cyril Foster Lecture at Oxford in February 2011 under the heading of Human Protection and the 21st Century United Nations. The culture within the UN Secretariat has shifted, as it has in the world at large. The Secretary-General has made it clear that he wants to know about worrisome developments, that he does not want to have his tenure marred by such episodes of mass violence against civilian populations. Kofi Annan learned that lesson before him. The Security Council, despite the wariness of some of its members, has explicitly invoked RtoP in six resolutions, including 1674 (2006) and 1894 (2009) on the protection of civilians in armed conflict, 1706 (2006) on Darfur, 1970 (2011) and 1973 (2011) on Libya, and 1996 (2011) on South Sudan. Publics, parliamentarians, nongovernmental organisations, scholars and commentators are far more attuned to preventing such atrocities than they had been in 1993-1994. The voting pattern on the two Libyan resolutions suggests that the political cost for Council members of looking the other way or of vetoing a robust response to such a tragedy is growing

Rt o P: T he J ou r ney / 45

along with public expectations. Efforts at prevention, whether by individual Member States, regional bodies, the Security Council or the Secretary-General and his envoys, have intensified. Political will is not a given, however, even in high-profile situations. It can be built or destroyed, shaped and reshaped. The evolution of RtoP to date illustrates this vividly. One of the key reasons why RtoP continues to gain political traction at the UN is the perception in capitals that it continues to enjoy broad and deep popular support. It is seen as a movement, not just a concept, as a bottom-up, not top-down, phenomenon. Media and parliamentary commentary has both fed and confirmed this impression. At the same time, what distinguishes movements with staying power from passing fads is the combination of fresh ideas and feasible implementation strategies. Ideas matter because they can move publics, politicians and policymakers alike. Refining innovative proposals into sustainable political and policy packages, however, is a fine art. It is one practiced by pragmatic scholars like you at gatherings like this. Here, students of law and of politics meet to carve out common intellectual ground and policy space. Here, students of institutions and students of power come to recognise that neither can understand how the world works without the other. Through these exchanges, we come to appreciate both how far we have come and how much more we have to learn. Your work, I’m quite certain, could prove instrumental in charting the road ahead, so that we can avoid the worst pitfalls and make the most of the momentum that has been so carefully assembled over time. I will look forward to joining you on that journey.

Notes 1 Report of the Secretary-General, ‘Early Warning, Assessment, and the Responsibility to Protect’ (2010) UN Doc A/64/864. For the remarks made by Edward C. Luck on 9 August 2010 at the Informal Interactive Dialogue on Early Warning, Assessment, and the Responsibility to Protect, see International Peace Institute, ‘We Should Not Wait For Bad News, Ed Luck Says At UN General Assembly Meeting’ accessed 23 March 2011. For summaries of the Informal Interactive Dialogue on Early Warning, Assessment, and the Responsibility to Protect, see Global Centre for the Responsibility to Protect, ‘“Early Warning, Assessment, and the Responsibility to Protect”: Informal Interactive Dialogue of the General Assembly held on 9 August 2010’ (GCR2P Report) accessed 23 March 2011 and International Coalition for the Responsibility to Protect, ‘GA dialogue on Early Warning, Assessment and the Responsibility to Protect’ (ICRtoP Report) < http://www.responsibilitytoprotect. org/ICRtoP%20Report%20of%20EW%20dialogue%20on%209%20August%202010%20 FINAL.pdf> accessed 23 March 2011. 2 Report of the Secretary-General, ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677.

Edwar d C . L uc k / 46

3 UN doc A/65/877-S/2011/393. 4 For the first joint statement by the two Special Advisers, addressing the violence in Kyrgyzstan, see United Nations, ‘UN Special Advisers of the Secretary-General on the Prevention of Genocide and on the Responsibility to Protect on the Situation in Kyrgyzstan’ (Press Release) accessed 23 March 2011. Joint statements on a number of additional situations have followed since then.

3

Reconstituting Humanity as Responsibility? The ‘Turn to History’ in International Law and the Responsibility to Protect Mark Swatek-Evenstein

The relationship between the Responsibility to Protect (RtoP) and the concept of ‘humanitarian intervention’ would seem to be straightforward enough: according to the report of the International Commission on Intervention and State Sovereignty (ICISS), the new approach of RtoP recognises the ‘long history’ of the phrase ‘intervention’ and its implications.1 It represents an attempt to reconceptualise the core issues, changing not only the terminology, but also the perspective.2 By turning its focus from the concept of ‘intervention’ to the concept of ‘sovereignty as responsibility’, RtoP purports to apply the lessons from a very long debate about the legality of ‘humanitarian intervention’ – and avoid its pitfalls. Accordingly, the concept has not only fuelled academic debate, but has also received the highest praise, being called the ‘most dramatic development of our time – comparable to the Nuremberg trials and the 1948 Convention on Genocide’.3 The doctrine has also received widespread recognition at the international level, for example through its inclusion in the World Summit 2005 Outcome Document (WSO Document),4 even if the version recognised there represents only a watered-down version5 that might be termed ‘RtoP lite’.6 Yet, even the most enthusiastic supporter of the concept would have to concede that the recognition of the principle says very little about its implementation in practice. It is, at best, a candidate norm7 – and in this regard, the ‘new’ approach seems to have had limited impact so far. The following pages will explore whether this could have been expected and whether this might explain why Sudan – one of the states that has been (or should have been) an obvious target state for RtoP-type action in recent years – appeared to have little difficulty supporting the doctrine in principle.8

Ma r k S watek -E venstein / 48

1

The History in RtoP

Even though it expressly recognises the ‘long history’ of the phrase ‘humanitarian intervention’, the ICISS Report makes surprisingly few references to this history. While there is extensive discussion of a number of ‘non-consensual military interventions’ during the Cold War period (1945-1989) that ‘resulted in clear humanitarian benefits’,9 and the military interventions of the 1990s with ‘purported humanitarian justifications’,10 there is very limited reference to the doctrinal history of the phrase. One might find this surprising, given that discussions of the legality of ‘humanitarian intervention’ go to the heart of the conflict between order and justice11 and are often traced back as far as the writings of Hugo Grotius.12 On the other hand, the approach of the ICISS Report is remarkable in that it correctly separates the origin of the doctrine from the Just War tradition:13 according to its Supplementary Volume, ‘[r]eferences to humanitarian intervention first began to appear in the international legal literature after 1840’.14 To support this claim, two authors from the pre-1945 era of international law are cited: Augustus Stapleton and his two books, Intervention and Non-Intervention (London: Murray, 1866) and The Foreign Policy of Great Britain from 1790 to 1865 (London: Murray, 1866); and Ellery Stowell and his book, Intervention in International Law (Washington, DC: J. Bryne, 1921). Neither of these references explains the choice of the year 1840. In fact, Henry Wheaton’s Elements of International Law with a Sketch of the History of the Science, the first English language treatise exclusively devoted to international law,15 already speaks of the ‘interests of humanity’ as a legal ground for justification of an intervention in its first edition of 1836.16 Wheaton discusses the incident correctly identified by the ICISS Report as one of those historical episodes ‘most directly responsible’ for the appearance of a concept of ‘humanitarian intervention’ in the legal literature: ‘the intervention in Greece by England, France, and Russia in 1827 to stop Turkish massacres and suppression of populations associated with insurgents’.17 It is, of course, not the missing reference to Wheaton, whose words have been described as the ‘original specification of humanitarian intervention’,18 nor the unexplained choice of 1840 as the starting point for a history of ‘humanitarian intervention’ in the Report that deserves criticism. On the contrary, given the limited value often attributed to references to pre-UN Charter international law in discussions of ‘humanitarian intervention’,19 the Commission is to be applauded for having touched on the historical dimension in the first place. Yet, its brief chronicle of the development of the principle leads to the misleading conclusion that ‘this notion of intervention evolved substantially before the appearance of an international system with institutions responsible for maintaining international order and protecting human rights’.20 A more detailed analysis of the curious mix of history, interpretation and legal argument, however, would support the conclusion that this notion of intervention evolved as an expression of an international system with

Re cons t i t u ti n g H u ma ni ty a s Res p o nsibili t y ? / 49

institutions responsible for maintaining international order and protecting human rights. The ICISS Report quotes Ellery Stowell’s 1921 definition of ‘humanitarian intervention’ as ‘the reliance upon force for the justifiable purpose of protecting the inhabitants of another state from the treatment which is so arbitrary and persistently abusive as to exceed the limits of that authority within which the sovereign is presumed to act with reason and justice’.21 In essence, this definition still stands, and the connection between the idea of RtoP and ‘humanitarian intervention’ is clear enough: to find ways to justify action to stop mass atrocities by reference to the scale of the atrocities alone; that is, to legally justify the reaction to a specific situation that would otherwise be illegal. While Stowell’s definition focuses, like the current discussion on ‘humanitarian intervention’ and RtoP, on the use of force, historically, the term ‘intervention’ and its use in the evolution of the doctrine of ‘humanitarian intervention’ had a broader meaning. Writing already in the twentieth century, one author remarked on the meaning of ‘intervention’ in the literature on international law: ‘A reader, after perusing Phillimore’s chapter upon intervention, might close the book with the impression that intervention may be anything from a speech of Lord Palmerston’s in the House of Commons to the partition of Poland’.22 Historically, some proponents of ‘humanitarian intervention’ have been known to support the idea, but explicitly reject the use of force to this end.23 For Stowell, writing at the tail end of an era that shaped his understanding of ‘humanitarian intervention’, this type of intervention was just one application of the instrument of intervention, another ‘instance of intervention for the purpose of vindicating the law of nations against outrage’.24 As late as 1939, when discussing whether international law left room ‘to check brutality and inhumane treatment in another state of that state’s own nationals’, he considered the lodging of protests and the use of pressure to fall under the term of ‘intervention’.25 In general, Stowell viewed intervention as an ‘international police action’; that is, an action ‘necessary for the protection of the interests of all the states and of mankind in general by those powers who exercise a paramount direction over world affairs, that is, to the great world powers’.26 At the heart of this was an understanding of international law that not only ‘recognizes the right and the obligation of all the other states to cooperate to vindicate the law of nations’, but that saw states act on behalf of other states in those ‘instances of general concern when no state is sufficiently interested to undertake an intervention for the purpose of vindicating international law, or when a friendless injured state is so conspicuously inferior in strength as to make such action impossible’.27 He explains how, in a system that in practice ‘is found to work very well’, the law depends on states acting to protect their interests and sometimes the interests of other states, as well as for the enforcement of international law in general.28 ‘Even though the other states may be slow to intervene with arms to vindicate the law of nations when their national interests are not sufficiently involved, the transgressor is sure to incur the efficacious penalty of discrimination from other states’.29 And, as if contributing to a debate about ‘sovereignty

Ma r k S watek -E venstein / 50

as responsibility’, he counters arguments against intervention on the grounds of the ‘inviolable’ right of every state to ‘regulate its internal affairs’ with the question: ‘why … should the independence of a state be more sacred than the law which gives it that independence?’30 His definition of the situation giving rise to the right of ‘humanitarian intervention’ – a sovereign presumed to act with reason and justice, but exceeding the limits of his authority and being persistently abusive – also seems to foreshadow this understanding of sovereignty. Sovereignty and intervention were therefore not necessarily incompatible in nineteenth-century international law. On the contrary, the system of ‘unequal sovereigns’ as it developed in Europe after 1815 and in which the later ‘humanitarian interventions’ took place, gave the Great Powers the legal right to enforce their will on Europe – at the very least, in their eyes.31 It is worth quoting from Stowell at length, because his writings represent something like an English language summary of the doctrine of ‘humanitarian intervention’ as it was developed by French-speaking lawyers at the end of the nineteenth century. A world of international law emerges from these words that couples positivist realism with a certain sense of progress and idealism, much like the world of international law found in the writings of those lawyers called the ‘men of 1873’ by Martti Koskenniemi.32 In this world, the Great Powers would take on ‘responsibility’, qualified to do so by their virtue as ‘civilised nations’, for vindications of international law and act to enforce the law – any ‘humanitarian intervention’ was therefore also an ‘intervention by humanity’, an intervention to stop the lawlessness of barbarism. It is then perhaps quite fitting that Stowell was also among the few international lawyers actively employing the doctrine of ‘humanitarian intervention’ to call for an intervention on behalf of the Jews of Europe.33 Whether the Holocaust might have been prevented had his advice been followed, is impossible to say; it remains true, however, that no such intervention was ever undertaken.34 Yet, a brief survey of the literature on ‘humanitarian intervention’ and the German persecution of Jews shows that Stowell was not alone at this point in the evolution of international law in regarding the term ‘intervention’ as referring to more than just to the use of force, but also including other forms of interference in affairs traditionally considered ‘internal’. For example, in a speech before the Grotius Society in May 1933, Norman Bentwich called for a ‘diplomatic intervention’ (or ‘diplomatic representation’) by Great Britain on behalf of the Jews of Germany, an option that was discussed in the British parliament, but eventually rejected.35 It is therefore questionable that the law that Stowell and his predecessors helped shape was actually representative of the law as applied by states in their international relations; it appears to be more the law of a parallel world that reflected the idealism and personal convictions of such lawyers.

Re cons t i t u ti n g H u ma ni ty a s Res p o nsibili t y ? / 51

2

The History of RtoP

The notion of ‘humanitarian intervention’ was a regular feature of the textbooks on international law that started to appear in the nineteenth century. Koskenniemi has shown that it was at this time that the science of international law really came to life.36 And it came to life in a way that transcended the understanding of traditional international law in the nineteenth century as focused on positivism and not morality,37 uncompromisingly protecting state sovereignty.38 On the contrary, a large body of the writing on international law that appeared before World War I reflected an approach that aimed to provide an expression of the progress of European societies.39 While this development is reflected in mainstream teachings of international law,40 it is more often than not seen as an expression of the hypocrisy of that ‘golden age’ of international law,41 as the conceptualisation of a European family of ‘civilised nations’ came at the price of colonial expansion – and the writings of nineteenth-century lawyers like John Westlake, Thomas Lawrence and James Lorimer justified colonialism.42 It is in this context that the ICISS Report places the nineteenth-century ideas on ‘humanitarian intervention’, stating that critics of the concept argued that humanitarian justifications were usually a pretext for intervention motivated by strategic, economic or political interest, and adding that ‘there can be no doubt that even when objectives were less objectionable, the paternalism of the intervening powers – which were self-appointed custodians of morality and human conscience, as well as the guarantors of international order and security – undermined the credibility of the enterprise’.43 Yet, such contextualisation is misleading in more than one way: any substantial practice of ‘humanitarian intervention’ is – from a legal point of view and with one possible exception – a creation of writers on international law. And the ‘paternalism’ attributed to the intervening powers also rested in no small part on these international lawyers, grounded in deeply felt idealism and, in most cases, modern liberal values. The concept of ‘humanitarian intervention’ as it was developed in the latter half of the nineteenth century was developed as part of the understanding of international law as the law of ‘civilised’ nations. The writers most active in this area had very little doubt that international law reflected ‘our’ values and ‘our’ civilisation and thus also reflected ‘our’ humanity, as expressed by Egide Arntz, a rather prominent member of Koskenniemi‘s ‘men of 1873’.44 Writing in 1876, in a note that later would be considered the first expression of the doctrine of ‘humanitarian intervention’,45 the Belgian Professor opined: When a government, acting fully within the limits of its sovereign rights, violates the laws of humanity, either by measures contrary to the interest of other States, or by excesses of injustice and cruelty which profoundly injure our morals and our civilisation, of the intervention is legitimate. In effect, although the rights of sovereignty and independence of States are important, there is something which

Ma r k S watek -E venstein / 52

is even more important. It is the law of humanity, or of human society, which must not be offended. Just as in the State the liberty of the individual is restricted and must be restricted by the law and by the morals of society, the individual liberty of States must be limited by the laws of human society.46

Such an argument could draw on writings in the international law literature like the Wheaton quote mentioned earlier, and on historical events like the interventions also mentioned in the Supplementary Volume to the ICISS Report: the intervention leading to Greek independence by England, France and Russia in 1827 and the ‘intervention’ by France in Syria in 1860.47 These had quickly found their way into the legal literature and been interpreted in different ways.48 During their integration into a theory of ‘humanitarian intervention’, these interventions were stripped of their obvious connotations to religion and placed into the larger context of a battle between ‘humanity’ and ‘barbarism’.49 Quite fittingly, at first, this led to the idea of an intervention d’humanité, an ‘intervention by humanity’, rather than ‘humanitarian intervention’.50 ‘Humanity’ was the intervener in this version of history: a group of states was thought to exist that represented ‘humanity’; or, to term it in a phrase closer to RtoP language, to be ‘responsible’ and able to respond to ‘barbarous cruelty’ in other places. These states, of course, were the ‘civilised’ states of Europe, who, by their decision to intervene on behalf of humanity, reassured themselves of their elevated, ‘most civilised’ status. The French jurist Antoine Rougier gave this theory of an ‘intervention by humanity’ its most comprehensive expression in a seminal article published in 1910, entitled La Théorie de l’Intervention d’Humanité.51 Taking a number of historical events, most of which are still discussed in the literature on ‘humanitarian intervention’, as well as Arntz’s concept of the droit humain, the ‘law of humanity’,52 Rougier developed a framework in which guidelines were laid down to ensure that future ‘interventions in the name of humanity’ would serve not only individual states’ interests, but a greater goal of controlling ‘barbarous states’ for the sake of the rights of all mankind.53 Though in no small part based on interventions undertaken by Christian powers at the expense of the Muslim Ottoman Empire, Rougier insisted that this ‘intervention in the name of humanity’ was something other than an intervention on religious grounds.54 It was, argued Rougier, one of the essential functions of any state to apply this droit humain, and it required states to fulfil certain functions towards individuals, including the ‘functions’ of protection, justice and moral and material development. Failure to fulfil these responsibilities was a failure to live up to a state’s legal responsibilities, as there is, according to Rougier, no legal obligation without responsibility. The theory of the droit humain, then, recognises the existence of a société humaine governed by a law eventually identified by Rougier as ‘the law of solidarity’.55 A discussion of whether similarities in the choice of words for this concept and current ‘solidarist’ theories of legitimate humanitarian intervention56 may also point to similarities in content is beyond the scope of this chapter. What will be discussed

Re cons t i t u ti n g H u ma ni ty a s Res p o nsibili t y ? / 53

here is the idea that nineteenth-century international law (and for all intents and purposes, the long nineteenth century of international law only ended with the end of World War I) was quite well equipped to accommodate the concept of leading nations furthering the development of international law and notions of solidarity with a legal framework. In a way, this is the essence of the doctrine of intervention d’humanité: it entrusted the ‘civilised’ nations of Europe with the ‘responsibility to protect’ ‘humanity’ from the misrule of ‘less civilised’ states – and thought them legally entitled to do so by virtue of their own standing. Yet, Rougier admitted that there was considerably little evidence of states actually acting in accordance with these principles: the interventions also mentioned in the ICISS Report (Greece 1827 and the French intervention in Syria 1860/1861),57 for example, did not fit this concept. In the Greek case, according to Rougier, the time had not yet been right to accept such a justification and it had thus been relied upon only timidly; whereas in the case of the French intervention, the idea of the intervention d’humanité had to be disguised by a ‘fiction’, that is, a conference held on the issue that resulted in the Ottoman Empire’s consent to the French occupation.58 Whether or not Rougier would have agreed is a different question,59 but in fact there is only one historical event of the pre-1945 world that can be seen as an application in practice of the ‘theory of the intervention in the name of humanity’: the ‘intervention’ of the United States against Spanish colonial rule in Cuba in 1898, leading to the Spanish-American War. In this case, President McKinley had famously explained the American reasons for going to war: In the cause of humanity and to put an end to the barbarities, bloodshed, starvation and horrible miseries now existing there, and which the parties to the conflict are either unable or unwilling to stop or to mitigate. It is no answer to say this is all in another country, belonging to another nation, and is therefore none of our business. It is our special duty, for it is right at our door.60

Warren Harding, at the time a US Senator, and later the 29th President of the United States, reiterated in a speech held in the US Senate in 1917: We unsheathed the sword eighteen years ago for the first time in the history of the world in the name of humanity, and we gave proof to the world at the time of an unselfish nation.61

This is the only time that a government employed the doctrine of the intervention d’humanité to justify its use of force in any explicit way – until the Kingdom of Belgium referred to humanitarian intervention as the justification for NATO’s intervention over the situation in Kosovo in 1999.62 Yet, while for Stowell this was ‘[o]ne of the most important instances of humanitarian intervention’, already in 1921, he had to concede that it was ‘unjustly’, he felt, ‘criticized by many writers’.63 The criticism has not diminished with time; a very vocal advocate of nineteenth-century

Ma r k S watek -E venstein / 54

‘humanitarian’ interventionism considers this particular intervention to be ‘sullied by imperialism’.64 At the time, the European Powers unsuccessfully tried to stop the United States from taking military action and contemporary European authors were indeed, as Stowell rightly pointed out, quite critical of the whole enterprise;65 not least, presumably, because a European and therefore ‘civilised’ state like Spain had been made responsible for ‘barbarities’, that is, practices that by default and definition were considered ‘un-European’. To European observers, the American justifications indeed must have had an ‘awkward flavour’,66 and not simply because the facts on the ground no longer reflected the need for an invocation of the ‘cause of humanity’ at the time the statement was given,67 but also because Europeans were not used to finding one of their own being cast as international law’s ‘Other’. But there can hardly be any doubt that the American justification followed the theory of the intervention d’humanité in letter68 – and, arguably, this is sufficient to fulfil the opinio juris requirement for the making of international (customary) law.

3

Where to?

The theory of the intervention d’humanité entrusted the responsibility of ‘vindicating the law of nations against outrage’69 to a select group of ‘civilised’ states. RtoP prefers to speak of a ‘collective international responsibility’, yet the collective, the ‘international community’, would have to be constituted through this responsibility. If there is a situation like Darfur that has, ‘according to all evidence, transgressed the threshold of inhumanity that triggers the subsidiary responsibility of the international community’,70 but no action is forthcoming, it seems questionable whether this community even exists or exists in a way that allows it to act. If, as some argue, RtoP could be considered a kind of social contract between the state and the international community as a whole, and an ‘emerging international legal principle of solidarity’ is an additional conceptual source of the residual responsibility of the international community,71 it would seem that it may take a select group of states and writers on international law to ‘construct’ the law accordingly.72 In fact, it is only through such an approach that, as some commentators suggest, the claim of the legality of ‘humanitarian intervention’ can be upheld under current international law.73 The ‘agents’ and methods of the theory of the intervention d’humanité and RtoP are remarkably similar: while the ‘international community’ has replaced the ‘civilised’ states and ‘humanity’ is now cast as ‘responsibility’, it is still necessary, just as it was then, to write into existence a law that reconciles a reality with an ideal. For just as a century-long discussion of intervention d’humanité did nothing to convince states to intervene in any meaningful way on behalf of the Jews of Germany and Europe, the current discussion is no indicator that any meaningful action will take place when the threshold of inhumanity that triggers the ‘responsibility of the international community’ is next transgressed. The ability of Sudan’s President

Re cons t i t u ti n g H u ma ni ty a s Res p o nsibili t y ? / 55

al-Bashir to escape arrest, despite facing an arrest warrant from the International Criminal Court, is probably more representative of the state of the international society of states than claims of an ‘international community’ ready to take on any ‘responsibility to protect’. Structurally, international law in its current stage of development is still not in a position to deny states the ability to make decisions in their international relations without regard to the law. To overcome this situation, it will not take a reconceptualisation of sovereignty, but a (further) reconceptualisation of sovereign equality, to the extent that the law of ‘civilised’ nations of the late nineteenth century knew different classes of sovereignty.

Notes 1 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) accessed 11 May 2011 (ICISS Report) 9. 2 Ibid 17. 3 R Thakur and T G Weiss, ‘R2P: From Idea to Norm – and Action?’ (2009) 1 GRtoP 22, 23. 4 See G Evans, ‘From Humanitarian Intervention to the Responsibility to Protect’ (2006) 24 Wisconsin Int’l L J 703, 713-15 for this and other examples of the doctrine’s recognition in international practice. 5 J Pattison, Humanitarian Intervention & The Responsibility to Protect: Who Should Intervene? (Oxford UP, Oxford 2010) 14. 6 T G Weiss, Humanitarian Intervention: Ideas in Action (Polity Press, Cambridge 2007) 117. 7 J Brunnée and S J Toope, Legitimacy and Legality in International Law (Cambridge UP, Cambridge 2010) 324. 8 Sudan attended the 2005 World Summit and voted in favour of the WSO Document. In his speech at the United Nations General Assembly, Sudan’s Foreign Minister reiterated Sudan’s commitment ‘to respect human dignity and promote human rights’; see Statement of H E Dr Mustafa Osman Ismail, Minister for Foreign Affairs, before the HighLevel Plenary Meeting of the 60th Session of the General Assembly (16 September 2005) accessed 11 May 2011. 9 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect: Research, Bibliography, Background’ (Supplementary Volume to the Report of the International Commission on Intervention and State Sovereignty) (December 2001) accessed 11 May 2011 (ICISS Supp Vol) 49-77. 10 Ibid 81-126. 11 Cf N J Wheeler, Saving Strangers (Oxford UP, Oxford 2000) 11; R Jackson, The Global Covenant (Oxford UP, Oxford 2000) 291. 12 Cf S Chesterman, Just War or Just Peace? (Oxford UP, Oxford 2001) 9. 13 See M Swatek-Evenstein, Geschichte der ‘Humanitären Intervention’ (Nomos Verlag, Ba­­ den-Baden 2008) 50-84 where I have argued in more detail why I consider the legal concept of ‘humanitarian intervention’ to be a product of nineteenth-century international law, only loosely based on Grotius or traditions of ‘just war’ thinking. 14 ICISS Supp Vol (n 9) 16.

Ma r k S watek -E venstein / 56

15 M W Janis, The American Tradition of International Law: Great Expectations 1789-1914 (Oxford UP, Oxford 2004) 40. 16 H Wheaton, Elements of International Law with a Sketch of the History of the Science (Carey, Lea & Blanchard, Philadelphia 1836) 125, 130. 17 ICISS Supp Vol (n 9) 16. 18 H Adelman, ‘Humanitarian Intervention: The Case of the Kurds’ (1992) 4 IJRL 4, 18. 19 J Shand Watson, Theory and Reality in the International Protection of Human Rights (Transnational Publishers, New York 1999) 245. Further references for doubts about the ‘relevance’ of history to the subject of ‘humanitarian intervention’ can be found in SwatekEvenstein (n 13) 15. 20 ICISS Supp Vol (n 9) 17. 21 Ibid quoting E C Stowell, Intervention in International Law ( John Byrne & Co, Washington DC 1921) 53. 22 P H Winfield, ‘The History of Intervention in International Law’ (1922-1923) 3 British Ybk Intl L 130, 130. 23 Cf H W Halleck, International Law; or Rules regulating the Intercourse of States in Peace and War (D. Van Nostrand, New York 1861) 87, 335, 340. 24 Stowell, International Law (n 21) 51. 25 E C Stowell, ‘Humanitarian Intervention’ (1939) 33 AJIL 733, 734. 26 Stowell, International Law (n 21) 277. He goes on to say that ‘[e]ach of the world powers also has a particular region outside of Europe where it often exercises this police power as if by a tacit mandate from the other powers’. 27 Ibid 47. 28 Ibid 47-48. 29 Ibid 49. 30 Ibid 58-59. 31 G Simpson, Great Powers and Outlaw States (Cambridge UP, Cambridge 2004) passim and in particular 93-115, relevant quote at 105. 32 M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge UP, Cambridge 2002) 11-97. 33 Stowell, Humanitarian Intervention (n 25). See also E C Stowell, ‘Intercession against the Persecution of Jews’ (1936) 30 AJIL 102, 102 ff. 34 This needs spelling out, as some supporters of a right of ‘humanitarian intervention’ insist on the contrary; cf F R Tesón, Humanitarian Intervention: An Inquiry into Law and Morality, (2nd ed Transnational Publishers, New York 1996) considering World War II as the most important precedent of a ‘humanitarian intervention’ prior to the establishment of the UN system. 35 N Bentwich, ‘The League of Nations and Racial Persecution in Germany’ (1933) 30 Transactions of the Grotius Society 75. For details, see generally P C Mohr, Kein Recht zur Einmischung? Die politische und völkerrechtliche Reaktion Großbritanniens auf Hitlers ‘Machtergreifung’ und die einsetzende (Mohr Siebeck, Tübingen 2002). Bentwich’s speech is discussed at length on pp 190-96. A summary of the discussions at the House of Commons in April 1933 can be found at pp 184-85. 36 Koskenniemi (n 32). See also M Koskenniemi, ‘Global Governance and Public International Law’ (2004) 37 Kritische Justiz 241, 245. 37 Cf M Shaw, International Law (6th edn Cambridge UP, Cambridge 2008) 29. 38 This used to be the dominant view in German legal scholarship; cf O Kimminich and S Hobe, Einführung in das Völkerrecht (7th edn Francke, Tübingen 2000) 42-43. While a writer like Kimminich does not necessarily represent the herrschende Meinung (main-

Re cons t i t u ti n g H u ma ni ty a s Res p o nsibili t y ? / 57

stream view) of German legal scholarship, the view of nineteenth-century international law as a ‘value-free’ legal order, the ‘Golden Age of International Law’ is rather common; cf G Abi-Saab, ‘International Law and The International Community: The Long Road to Universality’ in R St J  Macdonald (ed), Essays in Honour of Wang Tieya (Martinus Nijhoff, Dordrecht 1994) 31, 40. 39 Koskenniemi (n 32). 40 Cf Shaw (n 37) 27. 41 Abi-Saab (n 38) 40. 42 A Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge UP, Cambridge 2005); B Bowden, ‘The Colonial Origins of International Law’ (2005) 7 J His Intl L 1. 43 ICISS Supp Vol (n 9) 17. 44 Arntz was at this time the Secretary-General of the Institut de Droit International (Institute of International Law), the home of these ‘men of 1873’; see Koskenniemi (n 32) 122. 45 A Rougier, ‘La Théorie de l’Intervention d’Humanité’ (1910) 17 Revue Générale de Droit International Public 468, 490; A Mandelstam, ‘La Protection des Minorités’ (1923) 1 Recueil de Cours 367, 389-90. 46 G Rolin-Jaequemyns, ‘Note sur la théorie du droit d’intervention, à propos d’une lettre de M. le Professeur Arntz’ (1876) 8 Revue de Droit International et de Législation Comparée 673, 675 cited in the translation according to W G Grewe, The Epochs of International Law (Walter de Gruyter, Berlin 2000) 495. 47 ICISS Supp Vol (n 9) 17. 48 For a detailed analysis, see generally Swatek-Evenstein (n 13). For a different account of the interventions of the nineteenth century, see G J Bass, Freedom’s Battle: The Origins of Humanitarian Intervention (Knopf, New York 2008). 49 See Swatek-Evenstein (n 13) 162-67 with numerous references. 50 In the French literature to this day, the expressions intervention d’humanité and intervention humanitaire seem interchangeable; cf D Momtaz, ‘“L’intervention d’humanité” de l’OTAN au Kosovo et la règle du non recours à la force’ (2000) 82 Revue internationale de la Croix-Rouge (RICR) 89 and A Ryniker, ‘Position du Comité international de la CroixRouge sur l’ “intervention humanitaire”’ (2001) 83 RICR 521. However, there is a difference – in the case of the intervention d’humanité, an expression that was used in its French original by German writers as well, it is not necessarily the ‘humanitarian catastrophe’, the ‘humanitarian’ condition of a given situation, that gives rise to the intervention, but the intervenor’s status as the (alleged) representative of ‘humanity’; cf I Seidl-Hohenveldern and T Stein, Völkerrecht (Köln, Heymanns 2000) 299, no 1586. 51 Rougier (n 45). It is referenced in the ICISS Supp Vol (n 9), though no further use seems to have been made of the article. In Grewe (n 46), Rougier’s article is the backbone to the discussion of ‘humanitarian intervention’ in the 19th century. 52 This concept was further developed in the article of another French lawyer expressly referenced by Rougier (n 45); see A Pillet, ‘Le droit international public, ses elements constitutifs, son domaine, son objet’ (1894) 1 Revue general de droit international public 1. This article and Pillet’s concept of international law are described by Martti Koskenniemi as ‘premised upon the existence of an international society’. That such a society existed followed from ‘interdependence, the social law of our era’; see Koskenniemi (n 32) 282 (references to Pillet omitted). Koskenniemi further summarises Pillet’s theories as follows: ‘States were no autonomous beings having independent interests of their own but rather instruments or functions of their communities and the conflicts between them were conflicts between such functions: “the State has no other raison d’être than the func-

Ma r k S watek -E venstein / 58

tions it exercises towards the subjects which are under its authority”. International law neither emerged from, nor reflected, State interests. It arose from activities whereby States in their external relations sought to realize the objectives of their national communities. Its basis was not mere consent (though consent was one of its sources) but the necessity that States coordinate their activities to fulfil their functions’; see Koskenniemi (n 32) 282-83 (references to Pillet omitted). 53 Rougier (n 45) 524. 54 Ibid 472: ‘L’intervention en matiére de religion est chose nettement différente de l’intervention d’humanité’. 55 Ibid 492: ‘On peut dire que l’État a pour fonction essentielle de dégager et d’appliquer le droit humain, et que ce droit humain impose à l’État d’accomplir certaines fonctions vis-à-vis des individus: fonction de protection; fonction de justice, fonction de développement matériel et moral. Le manquement - à ce devoir entrainera pour l’État une responsabilité d’un genre particulier, une responsabilité devant l’humanité, car il ne peut exister d’obligation juridique sans responsabilité. La théorie du droit humain reconnaît l’existence d’une société humaine primordiale et d’une loi qui conditionne son activité, mais sans arriver à préciser quelle est celle loi. … [C]elle loi est la solidarité’. The similarities to Pillet’s concept (n 52) are obvious. 56 For an example of such a theory, see Wheeler (n 11) 33-51. 57 ICISS Supp Vol (n 9) 16. 58 Rougier (n 45) 473-74. The fact of Ottoman consent to the French intervention makes Brownlie’s assessment – quoted in the ICISS Supp Vol (n 9) 17 – that the occupation of Syria might be the one ‘possible’ case of a genuine humanitarian intervention rather dubious. Rougier might be correct in characterising the consent as a ‘fiction’, a gesture towards the Ottoman rulers, but the ‘formal’ fact that consent was sought and obtained before troops arrived in Syria is – from a legal point of view – more than just a formality. In the literature on ‘humanitarian intervention’, this is a historical and legal fact that is often misrepresented; cf J P L Fonteyne, ‘The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity under the UN Charter’ (1974) 4 Cal W Intl L J 203, 208: ‘Apparently, not too much importance should be given to the fact that formally this operation did not amount to an intervention since the Sultan gave his consent to the activities of the Concert of Europe by signing the Protocol of Paris. One can reasonably question the validity of that consent, for it seems clear that Turkey assented to the French expedition “only through constraint and a desire to avoid worse”’. Also see T E Behuniak, ‘The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey’ (1978) Military Law Review 79, 157-191 at 161: ‘Although the Sultan was a formal party to the Syrian intervention through adherence to the protocol of Paris, his participation and consent were less than voluntary. It is clear that Turkey assented to the French expedition “only through constraint and a desire to avoid worse”’. Both authors reference Stowell, supra note 24, p. 66, for the assessment that the Ottoman Empire only consented ‘through constraint and the desire to avoid worse’. 59 Rougier (n 45) 476, 503, considered the case important for the development of his theory, but not a purely ‘humanitarian’ case, given its obvious economic advantages for the United States. 60 Special Message of April 11, 1898, in: J B Moore (ed), A Digest of International Law, Vol. VI (Government Printing Office, Washington 1906) 219. 61 Cited in Grewe (n 46) 490, note 24. 62 Legality of Use of Force Case (Yugoslavia v. Belgium) (Provisional Measures) [1999] ICJ, pleadings of Belgium of 10 May 1999, CR 99/14 (uncorrected translation) accessed 9 February 2011: ‘[T]he Kingdom of Belgium takes the view that this is an armed humanitarian intervention, compatible with Article 2, paragraph 4, of the Charter, which covers only intervention against the territorial integrity or political independence of a State’. 63 Stowell, International Law (n 21) 481. 64 Bass (n 48) 317. In the late 1960s, when interest in the problem of ‘humanitarian intervention’ was renewed, the episode was viewed more favourably. See Swatek-Evenstein (n 13) 177-189, with references. 65 See the discussion in Swatek-Evenstein (n 13) 173-176. 66 This is how Grewe (n 46) 490 describes the situation. Such an opinion coming from this author is somewhat surprising, given his positive view of other supposedly ‘humanitarian interventions’. 67 By the time the United States did take up arms in mid-1898, Spain had already declared a ceasefire and recognised the American demands. The most brutal phase of Spanish colonialism on Cuba, the ‘reconcentratión’ – the forced internment of up to 400,000 people – had already been concluded by the end of 1897. See Swatek-Evenstein (n 13) 168-173 for details. 68 Rougier (n 45) 476, 503 seems to concede that, but had doubts about whether it also followed in spirit. Stowell, International Law (n 21) 122 admitted that the United States ‘had other grounds for intervening’, but thought this ‘will generally be found to be the case in instances of intervention for humanity’. 69 Stowell, International Law (n 21) 51. 70 Anne Peters, The Constitutionalisation of International Law (Oxford UP, Oxford 2009) 187. 71 Ibid, 190. 72 M Herdegen, ‘Asymmetrien in der Staatenwelt und die Herausforderungen des konstruktiven Völkerrechts’ (2004) Zeitschrift für ausländisches öffentliches Recht und Völker­recht 64, 571-582, at 575: ‘Charme und zugleich Verführungskraft des Wertordnungsansatzes liegt in der dadurch ermöglichten Fortentwicklung gewohnheitsrechtlicher Normen und dynamischen Auslegung der UN-Charta. Diese Dynamik macht die Rechtsfortbildung zum Gegenstand der Auslegung unter Verzicht auf überkommene Konsensbedingungen. Die Destillation bestimmter völkerrechtlicher Grundwerte als Abwägungsfaktoren operiert mit dem Zuspruch maßgeblicher, nicht notwendig mehrheitlicher Lehrmeinungen und mit der Rechtsanschauung gewichtiger, nicht notwendig mehrheitlicher Segmente der Staatengemeinschaft’. 73 Ibid 576. That this indeed requires changing the rules about rules in international law is a point explored in M Byers and S Chesterman, ‘Changing the rules about rules? Unilateral humanitarian intervention and the future of international law’ in J L Holzgrefe and R O Keohane (eds) Humanitarian Intervention – Ethical, Legal, and Political Dilemmas (Cambridge UP, Cambridge 2003) 177, 203.

4

Canada’s Role in the Conceptual Impetus of the Responsibility to Protect and Current Contributions Marc Alexander C. Gionet

Canada’s role in facilitating the conceptualisation of the Responsibility to Protect (RtoP) was not a grand achievement unattainable by any other state. Instead, where Canada is deserving of some notoriety is in its decision to take a position of leadership on the issue. The RtoP leadership initiative is a prime example of the strength and pull a middle power can have in shaping discourse and normative developments regarding international law and policy. Below, Canada’s previous government’s human security policy, which was a cornerstone of international leadership on issues such as RtoP, is contrasted with the current government’s foreign policy approach, which has failed to produce similar deliverables or contribute towards the continued development of RtoP. The development of a multi-state mechanism for conflict prevention is not a unique concept originating from the doctrine of RtoP. Investigations into preventive safeguards against the escalation of conflict have been a matter of debate for quite some time. In recent history, the trend includes the 1993 Mechanism for Conflict Prevention of the Organisation of African Unity, measures put in effect by the Organisation for Security and Cooperation in Europe, and a number of Conflict Prevention Assessment Missions undertaken by the European Union.1 What seems absent from these models, and the importance of which has been highlighted through the atrocities of the Rwandan genocide and deliberate targeting of civilians in Kosovo and Srebrenica, is an inclusion of tangible commitments on behalf of regional intergovernmental organisations or the international community; in effect, there is a gap between rhetoric and a wide degree of possible action which would fall under the RtoP paradigm. Hovering above these models, and previous discussions surrounding conflict prevention, has always been the sacrosanct reverence for state sovereignty. The mass human rights atrocities of the mid-1990s allowed for a refocused perspective on sovereignty with regard to the rights and duties of the sovereign.

Ma r c A lexand er C . Gio ne t / 62

1

The Canadian Adoption of the ‘Human Security’ Agenda

The Mulroney Government (1984-1993) made improving United States (US)Canadian relations a priority following the ‘neglectful’ Trudeau era, which had emphasised ‘The Third Option’ in relation to the superpowers’ struggle for global domination and Canada’s economic dependence on the US.2 Instead, Mulroney shifted from the traditional multilateral approach of Canadian foreign policy to one of bilateral prioritisation with the US. The flagship of this policy change was achieved through the North American Free Trade Agreement as well as an acid rain accord with President George Bush Sr.3 Mulroney was also quick to dedicate military resources in support of US-initiated operations, such as the Gulf War and the Somalia mission Operation Restore Hope, both of which later came under United Nations (UN) control. When the Chrétien Government came into power, it acknowledged voters’ desire for a deviation from the past Mulroney Government’s foreign policy approach.4 The Chrétien Government began to orient its foreign policy around ‘human security’, which was conceptualised by Mahbub ul-Haq and articulated in the 1994 United Nations Development Programme (UNDP) Report.5 In broad terms, the concept recognises that: at a minimum, human security requires that basic needs are met, but it also acknowledges that sustained economic development, human rights and fundamental freedoms, the rule of law, good governance, sustainable development and social equity are as important to global peace as arms control and disarmament.6

Canada refined its definition of human security to emphasise eight elements: 1. Individual human beings and their communities, rather than states, are the point of reference; 2. These two focal points of individuals and community are used to measure security, indicated by their safety and well-being; 3. The security of states is essential, but not sufficient, to ensure individual and community safety and well-being; 4. Threats to human security are considered from both state and non-state actors; 5. Safety and well-being of individuals and communities is integral to global peace and security; 6. Human security is a complement to, not a substitute for, national security; 7. Civil society makes a direct contribution to human security; 8. New techniques and technologies are included in the repertory of diplomatic tools – such as telecommunications and non-traditional alliances between government and non-governmental organisations.7

C an ad a’s R ole i n th e Co n ce ptua l Imp e t us o f Rt o P / 63

Fiscal austerity due to the recession and deficit that had ballooned under the Mulroney Government demanded selectivity to prioritise foreign policy initiatives.8 This split between generating a new human security focus which marketed Canada’s foreign policy as multilateral and internationalist and the exercise of intensified fiscal restraint, created an odd paradox that was exemplified in Canada’s leadership in the banning of landmines (explicated further below) and a drop in earmarked foreign aid contributions to a meagre 0.3 per cent of GDP.9 Evan H. Potter described this process as the development of ‘niche diplomacy’ by which, motivated by decreased resources, a government is obligated to explore and exploit the under-utilisation of non-governmental organisation (NGO) capabilities as well as soft power influence, in order to create a widespread and effective diplomatic presence.10 The brief description of two cornerstone initiatives, the Ottawa Treaty and the Rome Statute, will exemplify the effectiveness of niche diplomacy expressed through a human security foreign policy, while providing a prelude to a discussion of RtoP.

2

The Landmines Ban

Canada’s leadership in the International Campaign to Ban Landmines, which in 1997 led to the signing of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (or as it is more commonly referred to, the Ottawa Treaty), provides an example of the new model Canada favoured in developing foreign policy deliverables concerning human security.11 In a radical departure from the traditional format of exclusive state-to-state negotiations leading to the development of arms control treaties as a consensus, NGOs framed anti-personnel mines as a humanitarian concern and demanded a continued role, beyond raising the issue, in the treaty-crafting process. Canada and other middle-power countries recognised the value of NGO partnerships as a counter-balance to superpower hegemony.12 A group of states which held identical objectives had formed through NGO facilitation, and saw the utility NGOs offered in their unwillingness to compromise their original position of a comprehensive ban. Seeing the leverage and soft power that NGOs could rally from the global community, the group of states lobbied to ensure NGO inclusion in the treaty negotiation process.13 Canada played a distinctive leadership role in promoting this process and ensuring NGO inclusion and influence. ‘The Ottawa Process’, as it is called, reflects the human security priorities of forging non-traditional diplomatic alliances, which recognises civil society’s contributions towards global peace and security, with the foreign policy objective of promoting individual and community security, which was threatened by anti-personnel mines. As a result of the Ottawa Treaty, Canada’s involvement and leadership gained considerable attention as the catalyst for a convention that now boasts 156 state parties.14 The relatively minor cost of this initiative in relation to the outcome and influence on state behaviour highlighted the ability of government to do more with less when focusing on niche

Ma r c A lexand er C . Gio ne t / 64

prioritisation. In addition, the initiative contributed towards the narrative development of Canada and Canadians, exerting a disproportionate influence on international affairs relative to the country’s functional power.

3

The Rome Statute of the ICC

It has long been recognised that violations of international humanitarian law and a culture of impunity have threatened notions of human security.15 A similar model to ‘the Ottawa Process’ was used to build support and momentum for the creation of the International Criminal Court (ICC). Canada played a pivotal role chairing a coalition of over 60 states called ‘The Like-Minded Group’, which partnered extensively with NGOs to motivate the wider international community to hold a diplomatic conference in 1998, leading to the finalisation and adoption of the Rome Statute.16 The mutually beneficial relationship between committed governments and NGOs helped to negate the efforts by some states to prolong negotiations and weaken certain elements within the proposed statute. NGOs played a strong preparatory role by raising public awareness of the ICC and framing negotiations through well-circulated research papers and lobbying efforts.17 During the Rome Diplomatic Conference, Canada continued to demonstrate a strong leadership role by brokering all areas of negotiations through creative accommodation of legitimate concerns, while holding fast to the original benchmarks of an effective court.18 Again, this foreign policy priority undertaken as a form of niche diplomacy resulted in Canada deriving a substantial return on a cost-effective investment of resources. In addition, the foreign policy deliverable met the government’s objective of modifying the behaviour of states and the international community through the establishment of a deterrent mechanism for threats to human security. In terms of narrative development, Canada generated considerable international recognition for its contributions towards the negotiation process and began to solidify its reputation as a ‘catalytic state’, or ‘one that seeks its goals less by relying on its own resources than by acting as a dominant element in coalitions of other states, transnational institutions, and private sector groups, while retaining its distinct identity and its own goals’.19

4

RtoP as the Final Derivative of Canada’s Human Security Agenda

In 2000, at the Millennium Summit of the UN, Prime Minister Chrétien announced Canada’s leadership role in the establishment of an independent International Commission on Intervention and State Sovereignty. A week later, Foreign Affairs Minister Lloyd Axworthy provided details on the Commission, stating:

C an ad a’s R ole i n th e Co n ce ptua l Imp e t us o f Rt o P / 65

In his Millennium report, the UN Secretary-General challenged the international community to address the highly complex problem of state sovereignty and international responsibility. Canada’s human security agenda is all about putting people first. We are establishing this Commission to respond to the Secretary-General’s challenge to ensure that the indifference and inaction of the international community, in the face of such situations as occurred in Rwanda and Srebrenica, are no longer an option.20

Constituted with a board which oversaw the strategic direction of the commissioners, Canada ensured continued prevalence by having Minister Axworthy chair the board and including Canadian academics Michael Ignatieff and Gisèle CôtéHarper as commissioners.21 Mandated to conclude and submit the report by 2001 to the Canadian Minister of Foreign Affairs, the report was then formally presented to Secretary-General Kofi Annan and the UN community on 18 December 2001.22 The purpose of the report was to develop an international political consensus governing how and when the international community should respond to emerging man-made crises involving the potential for large-scale loss of life and other widespread crimes against humanity. Moreover, the Commission wished to have a tangible impact that would surpass merely stimulating further academic debate.23 Intrinsic to this objective was the need to make the report operational through the general domestic and international guidelines specified in the report. Common to both political realms was the need for commitment, leadership, and constant campaigning in order to mainstream the concept of RtoP and have the doctrine integrated into the list of available tools for maintaining international peace and security. Prime Minister Chrétien and his government took up the campaign. Chrétien himself mentioned RtoP in July 2002 during the Progressive Governance Summit in London, and in September 2003 during the UN General Assembly (GA) Opening. Later in 2003, when the Chrétien Government was replaced by the Martin Government, a human security foreign policy continued. Martin ensured his commitment to RtoP by mentioning the norm at the September 2004 UN GA Opening, the November APEC Summit, and also domestically in his February and October Speeches from the Throne. These high-profile endorsements fitted into Canada’s larger strategy of approaching like-minded states, regional groups and civil society.24 Canada’s efforts, along with those of other states, began to bear fruit when in December 2004, the UN High Level Panel on Threats, Challenges and Change endorsed the ‘the emerging norm that there is a collective international responsibility to protect’.25 This was followed by the World Summit Declaration adopted on 15 September 2005, which embraced the norm.26 The next day in his address to the UN GA, Prime Minister Martin was quick to state, [RtoP] is a powerful norm of international behaviour. And this week, we have taken a very important step to that end. We are proud that RtoP has Canadian

Ma r c A lexand er C . Gio ne t / 66

lineage, that it is now a principle for all the world. That being said, our collective responsibility does not end there.27

Indeed, the Government outlined three areas of focus to close the gap between the internationally adopted norm and the capacity for effective implementation. These focus areas include: normative development, UN Security Council (SC) action on RtoP, and operational readiness.28 2005 continued to be a busy year, with Canada sending a joint letter to the Security Council President encouraging action on Darfur and promoting the norm of RtoP; Foreign Affairs Canada sponsoring two major studies aimed at building consensus in Africa, carried out by Plough Shares and the North South Institute; and in December, a statement was made by Canada to the Security Council on behalf of a group of nations promoting the importance of RtoP.29 Nonetheless, Canada’s prioritised focus on human security began to dissipate in 2004, marked by the first issuance of a national, rather than international, security policy that made the protection of Canadian interests an explicit priority.30

5

Indeterminate Direction and the Erosion of Middle-Power Status

In February 2006, the Liberal Martin Government was replaced by the Conservative Harper Government, and with new political leadership came new priorities. While initially, the Harper Government did not completely abandon the previous government’s commitment to the promotion of RtoP (Harper did mention the norm during his first address to the GA), by the end of 2007, a palpable change in direction had occurred. For example, three of the 18 statements delivered by Canada to the Security Council in 2006 mentioned RtoP.31 In 2007, three of 12 statements mentioned RtoP.32 From 2008 to 2010, not one of the 31 statements made to the Security Council by Canada mentioned RtoP.33 In 2006, Canada made 48 statements to the GA, two of which mentioned RtoP.34 From 2007 until 2010, Canada made 93 statements to the GA; only one mentioned RtoP, and that was in 2009 during the GA Open Debate on RtoP.35 Disengagement at the UN was accompanied by other actions, such as disbanding the government’s Special Advisory Team on Sudan, which was advocating action within the RtoP paradigm.36 This weakening of Canada’s endorsement was quite intentional, as the Harper Government made efforts to distance itself from its predecessor through a process of re-branding, as well as developing policy positions that would be more conducive to US-Canada relations. Indeed, many saw Canada’s human security approach as part of niche diplomacy as an irritant for the US, despite the friendly personal relationship between Chrétien and Clinton.37 The austerity measures of the 1990s, which reduced the military budget to 1 per cent of GDP, resulted in the deterioration of Canada’s Armed Forces and US criticism of negligent resource allocation towards North American defence spending. With George W. Bush in power, the Canada-

C an ad a’s R ole i n th e Co n ce ptua l Imp e t us o f Rt o P / 67

US relationship further deteriorated, spurred on by Chrétien’s public opposition to the invasion of Iraq, and his refusal to join a continental missile defence shield or redesign the 1958 North American Aerospace Defence Command (NORAD).38 Canadian military spending trends began to reverse in 2000, and under the Martin Government, major renewal projects were announced.39 The Harper Government has since increased military spending in every budget. While this revitalisation effort has been welcomed by the military, the North Atlantic Treaty Organisation (NATO) and the US, it has occurred in the absence of the necessary national debate examining what role Canada’s rebuilt military should play in terms of future foreign policy. Despite this, Harper has committed Canada to further engagement in Afghanistan, which has been extended beyond two previous exit dates to 2011, and increased military spending as a vehicle of re-engagement with the US and as a flagship of Canadian foreign policy prioritisation. This approach is reminiscent of the Mulroney decision to favour US bilateralism over Canada’s previous commitments to internationalist multilateralism. While the necessity of bilateral partnership with the US on such issues as trade and border security are undeniable, the parroting of US foreign policy priorities, such as Canada’s continued commitments in Afghanistan, undermines the stipulation of a middle power to ‘be demonstrably and objectively different from great and small powers’ in order to maintain its status.40 This is not to imply that there is an obligation to be different for the sake of difference or that priorities cannot coincide, but rather to emphasise the essentialness of an independent identifiable foreign policy approach which is distinctly a nation’s own. By prioritising Afghanistan’s largely combat intensive NATO commitment, the Harper Government has not capitalised on Canada’s unique strengths. To the contrary, the government has required the military to play a counter-insurgency role with which it was previously unfamiliar and poorly equipped to carry out. While training and equipment procurements have closed the operational gap, the Afghan mission has exhausted Canadian military resources, and because of the ‘whole of government’41 approach, Afghanistan has also been the highest recipient of Canadian international aid.42 Despite the admirable performance of troops and dignitaries, the 10-year exercise has not produced distinguished achievements for Canada with regard to nationbuilding. Canada’s lack of resources, which also separates it from great powers, will always inhibit the country from performing within this sphere of influence beyond its meagre capabilities. For example, the considerable expenses, relative to Canadian resources, required to maintain 2,500 troops deployed in Afghanistan has overstretched the human resources of the Canadian Forces, resulting in Canada declining to participate in or lead UN peacekeeping operations.43 This is also the reason given for the downgraded Afghanistan commitment post-2011; the military has run out of the human resources necessary to continue the current mission. The Harper Government has also intentionally frozen foreign aid and reduced aid specifically in Africa, while echoing the US stance on issues such as unquestioning support for Israel and discouraging multilateral action to address climate

Ma r c A lexand er C . Gio ne t / 68

change. Canada’s new foci have not gone unnoticed by the international community, which voiced its disapproval by electing Portugal over Canada to the UNSC in October 2010. This was the first time Canada was not elected to the Security Council in UN history, and represents a significant loss of middle-power status, as well as a missed opportunity to promote Canadian priorities. Another such opportunity presented itself on 26 February 2011, when the Security Council adopted a resolution for the first time, calling on Libya to honour the responsibility to protect its citizenry.44 Instead of being a high-profile participant in this normative development and continuing its international leadership role, Canada was absent. These examples illustrate how the Harper Government has elected for Canada to play a following instead of a leadership role within coalitions, contributing its marginal hard-power resources, as opposed to much more influential and cost-effective softpower strengths. If the government is indicating that a concentration on counter-insurgency and nation-building is the new flagship of Canadian foreign policy, it is destined to slip into obscurity or be viewed as an extension of American policy. Either would represent a loss of middle-power status and a deterioration of previous foreign policy uniqueness and effectiveness.

6 Conclusion RtoP was the last derivative of the Canadian human security agenda and made a major contribution to international law and policy development. Its value and necessity are punctuated by continued normative development and increased utility by such prominent inter governmental bodies as the UNSC. RtoP serves as a prime example of the increased influence and effectiveness that a middle power such as Canada can have on international relations when utilising its unique strengths and leveraging its standing in the global power order to serve as a catalyst. While changes in priorities are normal and to be expected from one government to the next, one cannot but lament the neglect of Canada’s RtoP leadership initiative, especially given that the neglect has an ideological basis and is not a result of reduced capacity. While RtoP may have begun under Liberal leadership, it is clearly now a fixture within international peace and security debates. By forfeiting Canada’s position of leadership as a dominant member in coalitions for normative development such as RtoP, the current government has decreased Canada’s middlepower status and allowed its influence, which had been built on multilateralism, to dissipate. It had been this strategy of internationalist multilateral endorsement and promotion by middle powers that facilitated RtoP’s development and provided Canada with an international relations niche. In its place, the Harper Government has positioned Canadian foreign policy in obscurity, yet to distinguish itself or produce tangible benefits for Canada and/or the international community.

C an ad a’s R ole i n th e Co n ce ptua l Imp e t us o f Rt o P / 69

Notes 1 A J Bellamy, ‘Conflict Prevention and the Responsibility to Protect’ (2008) 14 Glob Gov 135, 137. 2 J A Murray and L Leduc, ‘Public Opinion and Foreign policy Options in Canada’ (19761977) 40 POQ 488. 3 A Gotlieb, ‘Romanticism and Realism in Canada’s Foreign Policy’ (2005) 26 Policy Options 16. 4 K R Nossal, ‘Pinchpenny Diplomacy: The Decline of ‘Good International Citizenship’ in Canadian Foreign Policy’ (1998-99) 54(1) Int’l J 88. 5 G Oberleitner, ‘Human Security: A Challenge to International Law?’ (2005) 11 Glob Gov 185. 6 L Axworthy, ‘Canada and Human Security: the Need for Leadership’ (1996-97) 52 Int’l J 183. 7 P Heinbecker, ‘Human Security’ (1999) 56(2) Canadian Institute of International Affairs, Behind the Headlines Magazine January-March 4, 4­-6. 8 Nossal (n 4) 9. 9 Ibid. 10 E H Potter, ‘Niche Diplomacy as Canadian Foreign policy’ (1996-7) 50 Int’l J 25. 11 K Anderson, ‘The Ottawa Convention Banning Landmines: The Role of Non-Governmental Organisations and the Idea of International Civil Society’ (2000) 11(1) EJIL 91. 12 Ibid 107. 13 Ibid 108. 14 International Campaign to Ban Land Mines < http://www.icbl.org/index.php/icbl/Universal/MBT/States-Parties> accessed 3 February 2011. 15 D Robinson, ‘The International Criminal Court’ in R G McRae and D Hubert (eds), Human Security and the New Diplomacy (McGill-Queen’s University Press, Montreal 2001) 170. 16 E Riddell-Dixon, ‘Canada’s Human Security Agenda: Walking the Talk?’ (2005) 60(4) Int’l J 1067, 1091. 17 Robinson (n 15) 172. 18 Ibid 173. 19 Ibid 215. 20 Prime Minister J Chrétien, ‘Axworthy Launches International Commission on Intervention and State Sovereignty’ (Address to the UNGA 7 September 2000) accessed 12 May 2011. 21 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) accessed 12 May 2011 (ICISS Report) 73. 22 Ibid IX. 23 Ibid 70. 24 E Riddell-Dixon, ‘Canada’s Human Security Agenda: Walking the Talk?’ (2005) 60(4) International Journal 1067, 1091. 25 Report of the High-Level Panel on Threats, Challenges and Change ‘A More Secure World: Our Shared Responsibility’ (2004) UN Doc A /59/565 (High-Level Panel Report) para 202. 26 UNGA, ‘2005 World Summit Outcome’ (2005) UN Doc A/60/L 1 (WSO Document) para 138-40.

Ma r c A lexand er C . Gio ne t / 70

27 Prime Minister P Martin, ‘Statement by The Right Honourable Paul Martin Prime Minister of Canada To The High-Level Meeting of The Sixtieth Session of The United Nations General Assembly’ (16 September 2005) Office of the Prime Minister < http:// www.un.org/webcast/summit2005/statements16/can050916eng.pdf> accessed 12 May 2011. 28 Canadian Ministry of Foreign Affairs and International Trade, ‘Responsibility to Protect’ (Explanation of the concept of RtoP and Canada’s commitment towards its realisation) accessed 7 May 2010. 29 Ibid. 30 Canada Privy Council Office, ‘Securing an Open Society: Canada’s National Security Policy’ (Policy Report 2004) accessed 12 May 2011. 31 Permanent Mission of Canada to the UN, ‘Canadian Statements to the Security Council’ (List of Canadian Statements to the UNSC per year) accessed 12 May 2011, Statements 2006. 32 Ibid Statements 2007. 33 Ibid Statements 2008-2010. 34 Permanent Mission of Canada to the UN, ‘Canadian Statements to the General Assembly’ (List of Canadian Statements to the UNGA per year) accessed 12 May 2011, Statements 2006. 35 Ibid Statements 2009. 36 D Black, ‘The Responsibility to Engage: Canada and the Ongoing Crisis in Darfur’ (2007) 64 (4) Behind the Headlines, 17. 37 The US has not signed the Ottawa Treaty nor ratified the Rome Statute, viewing both these initiatives as challenges to its hegemonic dominance. 38 A Moens, ‘Afghanistan and the Revolution in Canadian Foreign Policy’ (2007-8) 63 Int’l J 569, 570. 39 Ibid 572. 40 A Chapnick, ‘The Canadian Middle Power Myth’ (2000) 55(2) Int’l J 188, 194. 41 The ‘whole of government’ approach has been organised around Canada’s commitment to three basic pillars: security; governance, the rule of law and human rights; and economic and social development. These efforts have been undertaken by the Department of Defence, Department of Foreign Affairs and Department of International Cooperation in order to provide synergy in overall government objectives. 42 Canadian International Development Agency, ‘Statistical Report on International Assistance: Fiscal Year 2008-2009’ accessed 12 May 2011. 43 Canadian Broadcasting Corporation, ‘Military plans post-Afghanistan review’ (30 April 2010) accessed 12 May 2011. 44 UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970/2011.

5

The Responsibility to Protect within the Security Council’s Open Debates on the Protection of Civilians A Growing Culture of Protection Ludovica Poli

1

The Protection of Civilians as a Thematic Issue on the Security Council’s Agenda

In the early 1990s, the Security Council began to intensively address the protection of civilians in armed conflicts in its country-specific decisions. After the United Nations (UN) failures in the Balkans, Somalia and Rwanda, this issue acquired a separate conceptual dimension, reflected for the first time in the 1998 Report of the Secretary-General on the causes of conflict in Africa, when it was defined as a ‘humanitarian imperative’.1 The UN’s major concerns in this field were the weakening of the adherence to humanitarian norms in conflicts and crisis situations, as well as the fact that civilians had shifted from being indirect victims of hostile armies to representing their main target, and the increase in attacks on relief workers, which was seriously undermining the effectiveness of humanitarian assistance. The Protection of Civilians (PoC), as discussed in the Council, covers a wide range of issues, and represents the ‘framework for the UN’s diplomatic, legal, humanitarian, and human rights activities directed at the protection of populations during armed conflict’.2 In particular, the inclusion of PoC as a thematic issue on the Security Council’s agenda aims to focus discussion on the duties of states and the role of UN organs in safeguarding civilian populations at times of armed conflict. PoC, as recalled by the Secretary-General, serves to help all parties to ‘under-

L u d ovi c a Poli / 72

stand how their responsibilities for the protection of civilians should be translated into action’.3 In the decade between 1999 and 2010, the Council adopted five resolutions4 on PoC and held 26 Open Debates as a regular follow-up to these resolutions. During the Open Debates, various issues were discussed by the participant states. These include conflict prevention; the fight against impunity; child and refugee protection; security for relief personnel; access to humanitarian assistance; the need to disseminate knowledge of international humanitarian law and to improve its implementation; the ban on weapons such as anti-personnel mines; and including the protection of civilians in peacekeeping mandates. In general terms, the Debates allow states to express their concerns about loopholes in different areas of protection and suggest ways to improve the safeguarding of civilians. Among the documents adopted by the Security Council, Resolution 1296 (2000)5 is particularly significant. This resolution recognises that the impact of conflicts on civilians could trigger the Council’s responsibilities under the UN Charter. Resolution 1674 (2006)6 is also relevant: it contains the first official reference made by the Security Council to the Responsibility to Protect (RtoP) doctrine and, moreover, it realised the connection between RtoP and PoC. PoC-related issues are also considered in resolutions on other subjects, such as women and peace and security;7 children in armed conflicts;8 the protection of humanitarian personnel;9 and conflict prevention.10 The Security Council also released a number of presidential statements and, as an annex to one of them,11 an aide memoire was adopted in 2002 to identify the core objectives for protecting civilians. It was revised for the first time the following year,12 while a fourth version was adopted in 2010.13 Other UN organs were also involved in the issue: the Secretary-General released many reports on the topic, and the Millennium Declaration adopted by the General Assembly identified ‘protecting the vulnerable’ as a priority area and agreed to ‘expand and strengthen the protection of civilians in complex emergencies in conformity with international humanitarian law’.14 

2

RtoP’s Underpinnings in the Discourse on PoC Prior to the Open Debate of December 2005

As is well known, RtoP doctrine is built upon two basic underpinnings: the description of state sovereignty as responsibility and the identification of a complementary responsibility to protect, bearing upon the international community, whenever a state is unable or unwilling to exercise its role in protection.15 The analysis of the positions expressed by governments at the Open Debates on PoC in armed conflicts reveals an interesting and growing process of ‘contamination’, triggered by the RtoP doctrine, of states’ perceptions of the international community’s role in dealing with mass atrocities. As a matter of fact, until 2005, RtoP appears to have influenced the discourse about PoC in the context of the Open

Rt o P wi thi n th e Se curi ty Co un cil’s Op en Debates o n the Pr o te cti on of Ci v i l i an s / 73

Debates, in particular by emphasising the need for stronger involvement on the part of the international community in those cases in which a state and/or other parties to a conflict are deficient in protecting the civilian population. This process took place gradually. During the first Open Debates held between 1999 and 2001, the participants mainly directed their attention to the seriousness of the impact of conflicts on civilians, defined as a cause of grave concern for the community of states. The delegations recognised the results achieved in the creation of a normative framework (humanitarian law and human rights), while simultaneously expressing their preoccupation with the gap that existed between such provisions and their enforcement. They also identified some critical issues, stressing the need to improve international efforts in fields such as the fight against impunity or conflict prevention. In these meetings, while the role of the Security Council in preventing and resolving conflicts was continuously stressed, the contribution of the international community as such to PoC was only occasionally mentioned. In general, states agreed on the need for a comprehensive approach by the international community to cover the political, economic, social, legal and humanitarian dimensions of protection. But, most importantly, the international community was never called to complement states’ efforts to provide protection. Something started to change in 2002, when, after the adoption of the International Commission on Intervention and State Sovereignty (ICISS) Report,16 some states appeared to be influenced by the RtoP vocabulary and framework. Despite the fact that references to the ICISS or the High-Level Panel Reports were rarely made,17 the substance of the doctrine – with respect to both its components (sovereignty as responsibility and the complementary responsibility of the international community) – was reflected in many delegations’ interventions. In the first place, the RtoP lexicon started to be used to reinforce some basic principles regarding PoC, such as the primary responsibility of the parties to the conflict (both state and non-state actors) for the safeguarding of non-combatants. Since 2002, indeed, some delegations have significantly echoed the ICISS Report, and the state’s protection responsibilities have been defined as ‘the most natural expression of sovereignty’,18 or ‘an essential element of a State’s sovereign status’.19 Secondly, and more significantly, the role of the international community – and, foremost, of the UN – was increasingly designed to complement the state’s functions in protection. Some delegations began to affirm that when a state is unable or unwilling to protect its citizens, the international community has to engage.20 PoC began to be described as a shared responsibility and the international community (sometimes even illustrated in all its components21) was gradually identified as the body responsible for making up for the state’s shortcomings. Not all states agree, though. In fact, in some cases, the position was that the international community should only offer assistance, with UN organs providing just a supplementary contribution to PoC.22 Furthermore, some states expressed their concerns about the concepts of ‘humanitarian intervention’ and ‘responsibility to protect’, pointing out the need to carefully manage them.23 They clearly feared the

L u d ovi c a Poli / 74

potential camouflage, under the guise of humanitarian assistance, of activities that would undermine state sovereignty. Therefore, unsurprisingly, those states required that all humanitarian efforts be undertaken ‘with the full cooperation, coordination and consent of the Government’.24

3

The Inclusion of a Reference to RtoP in Resolution 1674 (2006) and its Impact on Subsequent Open Debates

The need to mention RtoP in a resolution on PoC was discussed for the first time at the Open Debate of December 2005. The participant states had different opinions on the convenience of an explicit reference to RtoP by the Security Council, the only UN organ that, at that time, had not yet recalled the doctrine in a document. Three different positions emerged. First, several states mentioned the relevance of the World Summit Outcome Document (WSO Document) provisions on RtoP,25 sometimes openly welcoming the references to RtoP as contained in a draft resolution. Among these states, France explicitly stressed that it would be uncontroversial for the Security Council to refer to that notion, since ‘it commanded a consensus among […] heads of States or Governments’.26 Second, other states, which favoured the inclusion of a reference to RtoP in a Security Council document, expressed strong support for RtoP and the complementary role of the international community, which was seen as a political and moral responsibility.27 Third, a small group of countries (including China, the Russian Federation, and Egypt) were sceptical about the concept and insisted on the state’s primary responsibility to protect, consequently denying the international community any pro-active role. For these states the Security Council was not the venue to develop RtoP, and they considered it premature to advance the concept in Security Council documents. They claimed that it would be necessary to have a detailed discussion of the concept within the General Assembly before considering its possible implementation.28 Due to the disagreement that emerged among Member States regarding the possibility of mentioning RtoP, the document, which had been expected to pass in December 2005, was adopted some months later. Resolution 1674 of April 2006, which recalled paragraphs 138 and 139 of the WSO Document, formalised the RtoP doctrine in the context of the Open Debates on PoC. In the subsequent Debates, the states that were reluctant to grant an active role to the international community have radicalised their positions. These states clearly perceive the reference to the RtoP doctrine by the Security Council, the UN organ that wields the greatest power in the maintenance of international peace and security, as potentially hazardous. Indeed, they have insisted vigorously that the inter-

Rt o P wi thi n th e Se curi ty Co un cil’s Op en Debates o n the Pr o te cti on of Ci v i l i an s / 75

national community merely play a supporting role, and have constantly stressed the need to respect state sovereignty29 and governments’ attempts to protect civilians.30 Some have even underlined that international support should be deployed in accordance with the territorial state in question’s will,31 and following its guidelines.32 These delegations consider the notion of RtoP to be subject to different understandings and interpretations by Member States: indeed, they worry about its potential invocation by the Security Council.33 China, for example, has frequently highlighted that the Security Council is not in a position to interpret or expand the concept.34 Most recently, RtoP has even been described as an instrument to promote neo-colonialism.35 Despite the tenacious opposition maintained by these delegations, in general, the number of states perceiving the need for effective, timely and decisive action by the international community and the UN has been increasing.36 Furthermore, there has also been recognition of the urgency of RtoP implementation,37 which has been underlined – among others – by the European Union (EU), through the voice of its Member States.38 The stress put on the ‘mise en oeuvre’ of the RtoP shows that states increasingly accept the concept and feel it to be necessary. More importantly, many states have started to see the role of the international community as an obligation and not just as a political or moral responsibility.39 In this sense, the EU has pointed out the need to integrate RtoP into an overall normative framework.40 In conclusion, the reference to RtoP in Resolution 1674 (2006), and the resulting ‘official’ entry of the doctrine in the context of the PoC Open Debates, undoubtedly determined the consolidation of contrasting positions. On the one hand, states that had previously shown reluctance to accept the notion of RtoP patently had their concerns renewed and reinforced. On the other hand, several states have confirmed and strengthened their favourable view of RtoP, have called for its implementation, and, furthermore, have given the concept a legal dimension, refusing to confine it to being a political or moral imperative. This contrast, however, has not precluded the advancing of the discourse regarding PoC. Rather, the discrepancy between ‘RtoP defenders’ and ‘RtoP detractors’ suggests that RtoP contributes to the debate, calling for the pro-activeness of the international community in providing protection. This is precisely what is feared by opponents and sustained by supporters of RtoP.

4

RtoP and Growing Opinio Necessitatis Regarding an Accountable International Community

The PoC Open Debates provide an important context in which to monitor the evolution of RtoP, and, in particular, the extent to which it is accepted by states. RtoP,

L u d ovi c a Poli / 76

and in particular, the complementary responsibility of the international community, is not yet envisioned by international law. Despite the fact that the UN Charter recognises a clear role for the Security Council in the maintenance of peace and security – which includes the protection of civilians from mass atrocities – this organ exercises its functions with high discretion. In fact, a general obligation requiring the international community to ensure protection of individuals whenever the state concerned fails to play its part is neither contained in a treaty, nor does it have the status of customary law. However, to consider RtoP a mere ‘buzzword’ in the vocabulary of international organisations would be to underestimate documents such as the one elaborated at the World Summit41 and the impact that the RtoP doctrine has had on many states’ perceptions of the international community’s role in response to mass atrocities. According to the ICISS Co-Chairman, Gareth Evans, although RtoP does not fall within customary international law, it can still be considered ‘a new standard of behaviour, and a new guide to behaviour, for every State’.42 In other words, despite RtoP not yet being envisioned by law, it could be widely accepted by states as a model for action or a principle containing guidelines, as demonstrated by the WSO Document, ‘a unanimous General Assembly resolution at head of State and government level’.43 As a matter of fact, the analysis of the concept within the UN and African Union (AU) confirms that RtoP is widely perceived as a suitable guide to behaviour, even if some practical issues (the legitimacy and the conditions governing the use of force for humanitarian reasons) are still hotly debated among states. In particular, in the UN context, the WSO Document contains a clear political commitment on the part of the UN and its Members States concerning RtoP. Furthermore, documents such as the Report of the Secretary-General on the implementation of the Responsibility to Protect44 and on its relevance for early warning and assessment,45 as well as the appointment of a Special Adviser with a focus on the doctrine, confirm that RtoP is not just part of the UN’s vocabulary, but also on the UN’s agenda. Moreover, the AU has embraced RtoP on several occasions, such as the common position expressed by Member States on the proposed reform of the UN known as the ‘Ezulwini Consensus’,46 or the African Commission on Human and Peoples’ Rights (ACHPR) resolution on ‘strengthening the Responsibility to Protect in Africa’.47 Although this is not sufficient to make RtoP part of customary law, the growing recognition of RtoP’s crucial role in dealing with security challenges determined by gross violations of human rights and humanitarian law, the consistent commitment to RtoP principles, and the efforts to implement them, suggest the emergence of an opinio necessitatis, something that lies behind any international legal rule.48 Opinio necessitatis differs from opinio juris in that instead of consisting of ‘the belief in the legally permissible or obligatory nature of [a] conduct’, opinio necessitatis is the belief ‘of its necessity’.49 While legally speaking, it may be of minor value, it can still ‘play a part in the law-creating process’,50 making states draw up treaties or

Rt o P wi thi n th e Se curi ty Co un cil’s Op en Debates o n the Pr o te cti on of Ci v i l i an s / 77

adapt their policies following a principle. In this case, opinio necessitatis may gradually become opinio juris and whenever accompanied by a widespread repetition of similar acts over time by states (usus) generate a customary law norm. Specifically with regard to the international community’s complementary responsibility to protect, the emergence of a rule of international law will eventually be determined by how broadly and coherently the RtoP concept is put into practice. However, at least the necessity of this complementary responsibility is now widely perceived. Indeed, an increasing opinio necessitatis regarding concrete, effective and accountable involvement on the part of the international community in managing crises to protect individuals can be inferred from the above-mentioned documents and, moreover, this is an observable trend in the Security Council’s Open Debates on PoC. In fact, the RtoP doctrine has gradually influenced the issue of PoC, and has contributed to the outlining of the concept of a strong role for the international community in dealing with mass atrocities. This process started quietly, at the time of the adoption of the ICISS Report, when the Report’s philosophy was reflected in some states’ positions at the Open Debates. It became clearer and stronger after the adoption of the WSO Document and, finally, it was formalised with the adoption of Resolution 1674. This increasing ‘contamination’ is a strong indicator of the spreading opinio necessitatis for an effective international response in the case of a Member State’s failure to protect. While the scope of RtoP, particularly as far as the military reaction is concerned, is still being elaborated51 and the emergence of RtoP as a rule of international law is therefore still at a very early stage, undeniably, there is an increasing awareness of the concept which is destined to be reflected in contemporary international law.

5

Conclusion: RtoP and PoC as expressions of a culture of protection

Despite the fact that RtoP and PoC are inspired by the same aim (the protection of civilians) and share normative foundations (human rights, humanitarian law), some features permit a clear distinction between the two. The protection of civilians extends beyond RtoP, which focuses on four crimes (genocide, war crimes, ethnic cleansing, crimes against humanity) and, conversely, is not limited to mass atrocities occurring in armed conflicts.52 The differences between the two have been occasionally underlined in the Open Debates,53 but most states perceive a strong link between RtoP and PoC,54 sometimes describing them as mutually reinforcing.55 RtoP has been seen as representing an integral part of PoC56 and ‘an extremely important vehicle for advancing the work on the protection of civilian in armed conflict’.57 Vice versa, PoC has been considered a ‘key area in fulfilling the responsibility to protect’.58 As stressed by

L u d ovi c a Poli / 78

the Argentinean delegation during an Open Debate held in 2006, RtoP and the adoption of Resolution 1674 ‘mark the beginning of a new phase in the actions the international community should take in this area’.59 The culture of protection envisioned by the Secretary-General in his reports on PoC is now growing. Much has to be done in terms of implementation, but recognising the need for an accountable international community is a major step forward.

Notes 1 Report of the Secretary-General, ‘The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa’ (1998) UN Doc A/52/871, 11 paras 49-52. 2 See the website of the International Coalition for the Responsibility to Protect accessed 6 April 2011. 3 Report of the Secretary-General on the Protection of Civilians in Armed Conflict (2005) UN Doc S/2005/740, 15 para 53. 4 UNSC Res 1265 (17 September 1999) UN Doc S/RES/1265; UNSC Res 1296 (19 April 2000) UN Doc S/RES/1296; UNSC Res 1674 (28 April 2006) UN Doc S/RES/1674; UNSC Res 1738 (23 December 2006) UN Doc S/RES/1738; UNSC Res 1894 (11 November 2009) UN Doc S/RES/1894. 5 UNSC Res 1296 ibid. 6 UNSC Res 1674 (n 4). 7 UNSC Res 1325 (31 October 2000) UN Doc S/RES/1325; UNSC Res 1820 (19 June 2008) UN Doc S/RES/1820; UNSC Res 1888 (30 September 2009) UN Doc S/RES/1888; UNSC Res 1889 (5 October 2009) UN Doc S/RES/1889; UNSC Res 1960 (16 December 2010) UN Doc S/RES/1960. 8 UNSC Res 1612 (26 July 2005) UN Doc S/RES/1612; UNSC Res 1882 (4 August 2009) UN Doc S/RES/1882. 9 UNSC Res 1502 (26 August 2003) UN Doc S/RES/1502. 10 UNSC Res 1625 (14 September 2005) UN Doc S/RES/1625. 11 UNSC Presidential Statement 6 (2002) UN Doc S/PRST/2002/6. 12 UNSC Presidential Statement 27 (2003) UN Doc S/PRST/2003/27. 13 This recent document updates the specific issues for consideration in meeting the Security Council action’s primary goals; furthermore it expressly intends to offer ‘guidance in circumstances where the Council may wish to consider action outside the scope of a peacekeeping operation’: see UNSC Presidential Statement 25 (2010) UN Doc S/PRST/2010/25, Annex, 1. 14 United Nations Millennium Declaration, UNGA Res 55/2 (8 September 2000), UN Doc A/RES/55/2, para 26. 15 UNGA ‘2005 World Summit Outcome’ (2005) UN Doc A/60/L.1 (WSO Document) paras 138-139. 16 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) accessed 6 April 2011 (ICISS Report).

Rt o P wi thi n th e Se curi ty Co un cil’s Op en Debates o n the Pr o te cti on of Ci v i l i an s / 79

17 Canada in UNSC Verbatim Record (14 June 2004) UN Doc S/PV.4990 Resumption 1, 16; Canada, Liechtenstein and Argentina in UNSC Verbatim Record (14 December 2004) UN Doc S/PV.5100 Resumption 1, respectively 5, 19, 20. 18 Argentina in UNSC Verbatim Record (10 December 2002) UN Doc S/PV.4660 Resumption 1, 24. 19 Canada in UNSC Verbatim Record ibid, 11. 20 Ibid and Romania in UNSC Verbatim Record (14 June 2004) UN Doc S/PV.4990, 7. The position has also been expressed by the Under-Secretary General for Humanitarian Affairs and the Emergency Relief Coordinator: ‘swift action by the Council is indispensable where Governments do not honour those responsibilities or deliberately act in violation thereof ’ See: UNSC Verbatim Record (15 March 2002) UN Doc S/PV.4492, 5; ‘it is when Governments do not have the capacity or are unwilling to provide assistance and protection that the United Nations must execute its special role and responsibilities’. See: UNSC Verbatim Record (14 June 2004), 3. France went even further asserting that ‘there is a collective obligation to protect when a State is no longer in a position to exercise one of its primary responsibilities … or no longer has the will to do so’. See: UNSC Verbatim Record (14 December 2004) UN Doc S/PV.5100, 12. 21 The Canadian delegation stated: ‘While few beyond the Security Council have the authority or the capacity to compel Member States to act in support of civilian needs in situations of conflict, action and advocacy are not the duty of the Council alone. The General Assembly, regional organisations, United Nations operational agencies, nongovernmental organisations (NGOs), the private sector and individual countries all have obligations. All need to be proactive in protecting the vulnerable’. See: UNSC Verbatim Record (10 December 2002) (n 18) 11. 22 Russian Federation in UNSC Verbatim Record (10 December 2002) UN Doc S/PV.4660, 28; Republic of Korea in UNSC Verbatim Record (9 December 2003) UN Doc S/PV.4877 Resumption 1, 10. 23 Colombia in UNSC Verbatim Record (14 December 2004) UN Doc S/PV.5100 Resumption 1, 23. 24 Ibid. 25 UNSC Verbatim Record (9 December 2005) UN Doc S/PV.5319 (Brazil 10; Italy 12; Peru 13; Germany 20; Japan 23; South Africa 27; Switzerland 28; Mexico 29); UNSC Verbatim Record (9 December 2005) UN Doc S/PV.5319 Resumption 1 (Algeria 3; France 7; United Kingdom 9; Norway 10). 26 France in UNSC Verbatim Record (9 December 2005) Resumption 1 ibid, 7. 27 UNSC Verbatim Record (9 December 2005) (n 25) (Argentina 8; Benin 11; Canada 15; Greece 22; Tanzania 25; Denmark 31); UNSC Verbatim Record (9 December 2005) Resumption 1 (n 25) (Liechtenstein 15). 28 UNSC Verbatim Record (9 December 2005) ibid, (Russian Federation 19; China 30); UNSC Verbatim Record (9 December 2005) Resumption 1 ibid, (Egypt 6). 29 Russian Federation in UNSC Verbatim Record (4 December 2006) UN Doc S/PV.5577 Resumption 1, 8; Vietnam in UNSC Verbatim Record (27 May 2008) UN Doc S/PV.5898, 14; Venezuela in UNSC Verbatim Record (14 January 2009) UN Doc S/PV.6066 Resumption 1, 32. 30 Sri Lanka in UNSC Verbatim Record (26 June 2009) UN Doc S/PV.6151 Resumption 1, 23. 31 China in UNSC Verbatim Record (22 June 2007) UN Doc S/PV.5703, 17. 32 Colombia in UNSC Verbatim Record (22 June 2007) ibid, 39. 33 China in UNSC Verbatim Record (22 June 2007) ibid, 17; Sudan in UNSC Verbatim Record (22 November 2010) S/PV.6427 Resumption 1, 26.

L u d ovi c a Poli / 80

34 See, eg, UNSC Verbatim Record (27 May 2008) (n 29), 9. 35 Venezuela in UNSC Verbatim Record (7 July 2010) UN Doc S/PV.6354 Resumption 1, 21. 36 See, eg, the declarations of the Governments of Ghana in UNSC Verbatim Record (28 June 2006) UN Doc S/PV.5476, 12; Peru in UNSC Verbatim Record (22 June 2007) (n 31), 8. 37 See the positions expressed by Canada, Australia and New Zealand (CANZ) in UNSC Verbatim Record (22 June 2007) ibid, 35; New Zealand and Australia in UNSC Verbatim Record (20 November 2007) (respectively UN Doc S/PV.5781, 31 and UN Doc S/PV.5781 Resumption 1, 13); Italy, Croatia and Australia in UNSC Verbatim Record (27 May 2008) (n 29) respectively 7, 21, 25; France in UNSC Verbatim Records (14 January and 26 June 2009) UN Doc S/PV.6066, 25; UN Doc S/PV.6151, 17; Italy and Peru in UNSC Verbatim Record (7 July 2010) respectively UN Doc S/PV.6354, 33; UNSC Verbatim Record (7 July 2010) Resumption 1 (n 35), 17. 38 Portugal in UNSC Verbatim Record (20 November 2007) Resumption 1 ibid, 2; Slovenia in UNSC Verbatim Record (27 May 2008) ibid, 29; Czech Republic in UNSC Verbatim Record (26 June 2009) ibid, 30. 39 The declarations made by the following governments are particularly significant: Congo and Belgium in UNSC Verbatim Record (22 June 2007) (n 31) respectively 16, 24; United Kingdom and Ghana in UNSC Verbatim Record (20 November 2007) (n 37) respectively 11, 17; Panama in UNSC Verbatim Record (27 May 2008) (n 29) 15; Burkina Faso in UNSC Verbatim Record (14 January 2009) 18. 40 See the Swedish declaration in UNSC Verbatim Record (11 November 2009) UN Doc S/ PV.6216, 30. 41 WSO Document (n 15) para 26. 42 Gareth Evans, ‘Implementing the Responsibility to Protect: the need to build on the 2005 consensus’ (speech at the United Nations General Assembly Interactive Dialogue on the Responsibility to Protect in New York 23 July 2009) < http://www.gevans.org/speeches/ speech405.html > accessed 13 July 2010. 43 Ibid. 44 Report of the Secretary-General, ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677. 45 Report of the Secretary-General, ‘Early Warning, Assessment, and the Responsibility to Protect’ (2010) UN Doc A/64/864. 46 African Union (Executive Council, 7th Extraordinary Session), ‘The Common African Position on the Proposed Reform of the United Nations’ (-8 March 2005) Ext/EX.CL/2 (VII). 47 ACHPR, ‘Resolution on Strengthening the Responsibility to Protect in Africa’ (15 28 November 2007) Res 117 (XXXXII), 7. 48 For some additional thoughts, see L Poli, ‘R2P as an emerging rule of international law and the opinio necessitatis of an accountable international community’ (2010) 4 La Comunità Internazionale, 579-599. 49 M Mendelson, ‘The Formation of Customary International Law’ (1998) 272 Recueil des Cours de l’Académie de Droit International, 269. 50 Ibid, 271. 51 UN organs have progressively contributed to defining RtoP in order to make it consistent with the UN Charter, while the African Union has shown a much more proactive attitude. 52 Global Centre for the Responsibility to Protect, ‘The relationship between the Responsibility to Protect and the Protection of Civilians in Armed Conflict’ ( January 2009) accessed 13 July 2010.

Rt o P wi thi n th e Se curi ty Co un cil’s Op en Debates o n the Pr o te cti on of Ci v i l i an s / 81

53 Liechtenstein in UNSC Verbatim Record (27 May 2008) (n 29) 32; Turkey and Sri Lanka in UNSC Verbatim Record (7 July 2010) respectively (n 37) 26; Resumption 1 (n 35) 31. 54 Most recently, the European Union in UNSC Verbatim Record (7 July 2010) Resumption 1 ibid, 12-13. 55 Slovenia in UNSC Verbatim Record (28 June 2006) (n 36) 25. 56 See the declarations made by Croatia in UNSC Verbatim Record (11 November 2009) (n 40) 11 and Rwanda in UNSC Verbatim Record (11 November 2009) UN Doc S/PV.6216 Resumption 1, 53. 57 Ireland in UNSC Verbatim Record (11 November 2009) Resumption 1 ibid, 19. 58 Benin in UNSC Verbatim Record (21 June 2005) UN Doc S/PV.5209, 11. 59 Argentina in UNSC Verbatim Record (28 June 2006) (n 36) 16.

Part II The Responsibility to Protect under International Law

6

The Scope of the Crimes Triggering the Responsibility to Protect* Jann K. Kleffner

The notion of the responsibility to protect rests on three fundamental pillars, each susceptible to different normative and conceptual challenges. The crimes included in the first pillar – genocide, war crimes, crimes against humanity and ethnic cleansing1 – constitute some of the most heinous breaches of international law. The inclusion of these crimes, however, raises certain questions, of which the two most fundamental are: first, whether reliance on international crimes is the most desirable approach at all; and second, whether the choice of the crimes that are included is convincing. The present contribution offers some reflections on these questions by addressing the normative and conceptual implications of choosing these crimes as potential triggers of RtoP.

1

Is Reliance on International Crimes the Best Approach?

In 2001, the report of the International Commission on Intervention and State Sovereignty (ICISS) took a very different approach to RtoP from that which emerged in later documents.2 As a comprehensive attempt to conceptualise RtoP, the Report postulated that the responsibility of states – other than the territorial state – was triggered by the population ‘suffering major harm’ and by the unwillingness or inability of the state concerned to halt or avert such suffering.3 In contrast to the 2004 High-Level Panel Report,4 the 2005 ‘In Larger Freedom’ Report5 and the 2005 World Summit Outcome Document,6 the ICISS report did not rely on a list, let alone an exhaustive list, of international crimes. Instead, the initial notion of RtoP indicated that – at its core – the concept was about the serious harm that a population suffered. One might ask whether this initial, less legalistic approach did not capture the essence of the notion of RtoP better than the exhaustive list that emerged from later documents. From a moral standpoint, it appears to be at least debatable that a population suffering from, or being threatened by, serious harm is any less deserving of protection if and when the harm does not amount to one of the crimes mentioned in the later documents, than when it does. Equally hard to sustain, however, would be an alternative argument that stretched the notions of

J a nn K. Kle ff ner / 86

these crimes, in order to bring as many situations that one considered appropriate within the reach of RtoP. Indeed, rather than strengthening RtoP, this inflationary use of the concept of international crimes would both defy their character as ‘the most serious crimes of international concern’ and contradict the very specific international criminal law regime that they trigger. A significant illustration of the conceptual and practical challenges inherent in the notion of RtoP is the debate that ensued following a French proposal7 to invoke RtoP in relation to the cyclone that struck Myanmar in May 2008. The proposal was never accepted, but it brought to the fore divergent views on what should, and what should not, trigger the responsibilities of third states that are postulated by the concept of RtoP. Some, such as Edward Luck, Special Adviser to the UN Secretary General, indicated that stretching the concept of RtoP would be ill-advised and ‘beyond what was intended’.8 Others, such as Gareth Evans, argued that the situation did amount to a RtoP situation because the cause of action adopted by the military junta amounted to a crime against humanity.9 Although seemingly opposed, these two positions are effectively in agreement, in as much as they support the contention that the concept of RtoP should be limited to the crimes of genocide, war crimes, crimes against humanity and ethnic cleansing. However, let us assume for a moment that in a situation such as the post-cyclone period in Myanmar, the suffering of the population is not due to the government’s unwillingness, but rather its genuine inability to provide relief to victims of such a natural disaster. There is no policy of genocide against any group of the affected population. Nor is there a widespread or systematic attack against the civilian population and hence no crime against humanity. The suffering of the population is neither man-made nor intentionally perpetuated. Nor is there an armed conflict in relation to which war crimes could be committed. In this situation – while recognising that it may not meet the requirements of RtoP – it is nevertheless difficult to see why the situation is any less deserving of international intervention. Certainly, there is much to agree with in the argument made by Lloyd Axworthy, for instance, who stated in 2008 that ‘the fundamental message of RtoP is that there is no moral difference between an innocent person being killed by a machete or AK-47 and starving to death, or dying in a cholera epidemic that could have been avoided by proper international response’.10 Indeed, it would be difficult to counter the powerful suggestion that, at its core, RtoP is not primarily an instrument of crime prevention, enforcement or restorative justice in response to international crimes. Rather, RtoP is first and foremost a tool for preventing and alleviating serious harm suffered by populations. It is thus, essentially, about the moral imperative of saving lives.11 This moral imperative, it is submitted, exists regardless of the question of whether the threat to the lives emanates from internationally defined crimes or other events. Accordingly, it could be argued that the more flexible, open-ended and, indeed, more vague scope of RtoP expressed initially in the ICISS report is more in tune with the underlying rationale of RtoP.

T h e Sc o p e o f th e C r imes T riggering Rt o P / 87

At the same time, one cannot fail to acknowledge that matters have been moving in a different direction with the refinement of the concept in subsequent documents and its being tied to international crimes. And indeed, it is undisputable that the introduction of international criminal law notions reduces the vagueness of the concept of RtoP. Nevertheless, the question of whether the choice of the crimes of genocide, war crimes, crimes against humanity and ethnic cleansing is convincing and conceptually sound remains to be answered.

2

The Choice of the Specific Crimes

A first observation regarding the conceptual issues that arise from the choice of the specific crimes is that an overlap exists between ethnic cleansing and the other crimes of genocide, war crimes and crimes against humanity. That is so because ethnic cleansing can amount to genocide, crimes against humanity and war crimes, provided the required subjective and material elements of these crimes are met. For instance, if committed with the required specific intent, ethnic cleansing can amount to genocide when it is part and parcel of the physical destruction of a particular group.12 It has also been qualified to amount to crimes against humanity on several occasions, for instance by the International Criminal Tribunal for the former Yugoslavia. In legal terms, ethnic cleansing then amounts to deportation or the forcible transfer of populations, or persecution that is being committed as part of a widespread or systematic attack directed against any civilian population.13 In situations of armed conflict, ethnic cleansing can also amount to war crimes, namely the war crimes of unlawful deportation or the transfer of protected persons in international armed conflicts14 and during occupation.15 While the acts that amount to ethnic cleansing are hence criminalised under international law in the aforementioned scenarios, it is important to stress that international criminal law does not know a separate crime called ‘ethnic cleansing’.16 What one then has to conclude is that the concept of RtoP – as it currently stands – mixes strict legal notions in the form of well-recognised crimes under international law, with the more colloquial notion of ethnic cleansing. Such a conceptual inconsistency makes the separate mentioning of ‘ethnic cleansing’ at best redundant, and at worst reintroduces an element of vagueness that the introduction of international crimes was intended to reduce in the first place. Ultimately this may undermine the operational utility of the concept of RtoP. A second observation is concerned with the notions of genocide, crimes against humanity and war crimes. Undoubtedly, their inclusion does go some way in reducing the vagueness of the triggers of RtoP. However, as general notions, they do not remove all ambiguity as to (a) what actually constitutes such crimes and (b) whether any crime, or the imminence of any such crime, would and should trigger RtoP. Admittedly, ambiguity may not pose a significant problem in relation to the crime of genocide, whose definition in the 1948 Genocide Convention and the cor-

J a nn K. Kle ff ner / 88

responding rule of customary international law has proved to be stable over time.17 Matters are, however, different with respect to crimes against humanity and war crimes and their exact meaning for the purposes of RtoP. As far as crimes against humanity are concerned, the question remains whether Article 7 of the ICC Statute is now to be regarded as the universally accepted definition. Some of the underlying crimes of crimes against humanity, such as ‘forced pregnancy’18 and ‘enforced disappearance of persons’19 have not yet evolved into customary international law, and the expansion of discriminatory grounds included in the definition of ‘persecution’ as a crime against humanity under Article 7 (1)(h) are indeed broader than customary international law.20 As regards war crimes, some would probably argue that Article 8 of the Rome Statute provides a good starting point to determine the current state of the law. However, caution is warranted here. The Statute contains several war crimes whose status under customary international law is questionable. An example is the war crime of ‘intentionally launching an attack in the knowledge that such attack will cause incidental … widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’ in international armed conflicts.21 Likewise, the customary status of the war crimes of human shielding22 and of starvation of civilians as a method of warfare,23 although based on primary norms of international humanitarian law which are undoubtedly customary in nature, is at least debatable.24 Equally important to remember is that some war crimes that many would accept as having customary status did not find their way into Article 8, with the war crime of intentionally attacking works or installations containing dangerous forces being one example.25 One approach to the problem of normative ambiguity would be to tailor the definitions of crimes to the target state. In other words, to first determine the extent of applicable law on crimes against humanity and war crimes – has the state ratified the Rome Statute, Additional Protocol 1 and other relevant treaties, for instance – and then proceed on the basis of those applicable definitions. Yet, aside from the fact that this would be likely to fragment the concept of RtoP, it would also raise serious issues of reciprocity. Would it be accepted, for instance, that a state that has not ratified the relevant treaty invokes RtoP and engages a State Party on the basis of imminent or actual crimes that are defined in that treaty? Besides the ambiguity that results from the aforementioned existing variety of definitions of crimes against humanity and war crimes, we also need to answer the question of whether it is justified to extend the concept of RtoP to all war crimes. While genocide and crimes against humanity already entail a degree of systematicity or widespreadness either as a matter of law (in the case of crimes against humanity), or as a matter of fact (in the case of genocide), and hence a certain threshold of harm to the population, this is not necessarily the case with war crimes. In other words, these two crimes presuppose a certain threshold of harm to the population. In contrast, this is not necessarily the case with war crimes. A

T h e Sc o p e o f th e C r imes T riggering Rt o P / 89

war crime remains a war crime, even if not committed within the broader context of systematic or widespread commission of other war crimes. The isolated incident of a soldier appropriating property, depriving the owner of it and using it for private or personal use without the consent of the owner, constitutes the war crime of pillage, for instance.26 One might very well argue that such a war crime, which may constitute a relatively minor infraction, in and of itself should not trigger the concept of RtoP. Admittedly, isolated war crimes are the exception rather than the rule. However, by globally referring to the crimes, the concept of RtoP in its current form fails to identify a required threshold for intervention. Thirdly and more fundamentally, the question arises whether the ‘three and a half ’ crimes of genocide, war crimes, crimes against humanity and ethnic cleansing should exhaust the list of crimes that should trigger RtoP. It is acknowledged that the current choice of RtoP trigger crimes is broadly in line with the general trend to separate the most serious crimes of international concern from ‘ordinary’ crimes under international law. Certainly, the former have been subject to strong international reaction in the form of the establishment of international criminal courts and tribunals. It also seems to find some support in the trend that can be observed in the area of state responsibility, with its evolving recognition of a separate category of serious breaches of peremptory norms of general international law, separate from ordinary breaches. While this is not meant to suggest that the notions of ‘international crimes’ and ‘international core crimes’, on the one hand, and the notion of ‘serious breaches of peremptory norms of general international law’ for purposes of state responsibility, on the other hand, can be equated, one may very well wonder whether – apart from the RtoP trigger crimes – certain other serious breaches of international law, such as aggression, colonial domination and other forms of alien domination and large-scale environmental degradation, should not also trigger RtoP. At the same time, however, one must also be conscious of the dangers of extending the list of breaches of international law that should trigger RtoP. Inclusion of a particular breach means the exclusion of others. The dangers in that are at least two-fold: first, the risk of a certain trivialisation of those breaches that do not make the list; and, second, from a strictly legal perspective, the risk of a retrogressive trend vis-à-vis existing obligations that correspond at least in part to obligations under RtoP. As some have argued, there are existing obligations to prevent and react in particular, for example in a number of international criminal law treaties. There is also an all-encompassing obligation to respect, and ensure respect for all provisions of the Four Geneva Conventions (not only those relating to grave breaches).27 Thus, to confine RtoP to a limited list of crimes may very well send a message to territorial and third states to take those pre-existing obligations that attach to crimes other than those that trigger RtoP less seriously. In conclusion, it is evident that the normative journey of RtoP is yet to be completed and that significant challenges remain. The initial observations offered above, however, may inform our thinking on the directions that the RtoP journey should

J a nn K. Kle ff ner / 90

take. Nine years have passed since the ICISS report, with great progress having been made. Nevertheless, constant evaluation of the concept of RtoP is, and will continue to be, vital in order to meet the challenges ahead.

Notes * The research assistance of Sanna Baymani is gratefully acknowledged. 1 UNGA, ‘2005 World Summit Outcome’ (2005) UN Doc A/60/L.1 (WSO Document) para 138. 2 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) accessed 30 March 2011 (ICISS Report). 3 Ibid para 2.25. 4 Report of the High-level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’ (2004) UN Doc A /59/565, para 203. 5 Report of the Secretary-General, ‘Larger Freedom: Towards Security, Development and Human Rights for All’ (2005) UN Doc A/59/2005, 59 (under Annex Section III para 7(b)). 6 WSO Document (n 1) para 138. 7 J Borger and I McKinnon, ‘Bypass junta’s permission for aid, US and France urge’ Guardian, (London 9 May 2008) accessed 30 March 2011. 8 J Marcus, ‘World wrestles with Burma aid issue’ BBC News (London 9 May 2008) accessed on 30 March 2011; Statement by E Luck, Briefing on ‘International Disaster Assistance: Policy Option’ (Washington 17 June 2008) accessed 30 March 2011. 9 G Evans, ‘Facing Up to Our Responsibilities’ Guardian (London 12 May 2008) accessed 30 May 2011. 10 L Axworthy, ‘International Community Has a Responsibility to Protect Myanmar’ Edmonton Journal (Edmonton 13 May 2008) accessed 30 March 2011. 11 Luck’s contribution in the present volume, at 39-46. 12 Prosecutor v Blagojevic and Jokic ( Judgment) ICTY-02-60-T, T Ch I (17 January 2005) para 666. 13 Prosecutor v Tadic (Opinion and Judgment) ICTY-94-1-T, T Ch I (7 May 199) para 697; Prosecutor v Krstic ( Judgment) ICTY-98-33-T, T Ch I (2 August 2001) para 607. 14 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (Rome Statute) art 8(2)(a)(vii). 15 Ibid art 8(2)(b)(viii); Convention (IV) Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (Fourth Geneva Convention) art 49. 16 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 2 (Genocide case) at 70-71, para 190.

T h e Sc o p e o f th e C r imes T riggering Rt o P / 91

17 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention) art II. 18 Rome Statute (n 14) arts 7(1)(g) and (2)(f ). 19 Rome Statute (n 14) arts 7(1)(i) and (2)(i). 20 A Cassese, ‘Crimes Against Humanity’ in A Cassese, P Gaeta and J Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford UP, Oxford 2002) 353378, 376-377. See also D Robinson, ‘Defining “Crimes Against Humanity” at the Rome Conference’ (1999) 93(1) AJIL 43, 52-56, who concludes that the definition in Article 7 ‘sets forth a modernized and clarified definition of crimes against humanity’. See further M Bennouna, ‘The Statute’s Rules on Crimes and Existing or Developing International Law’ in Cassese, Gaeta and Jones (n 20) 1101-1107, 1105-1106. But see R Cryer, Prosecuting International Crimes – Selectivity and the International Criminal Law Regime (Cambridge UP, Cambridge 2005) 256-260, who takes the opposite view with regard to some of the crimes against humanity which Cassese has identified as progressive development, relying on Prosecutor v Hadzihasanovic (Decision on Joint Challenge to Jurisdiction) IT01-47-PT (12 November 2002) in which it held that ‘it is critical to determine whether the underlying conduct at the time of its commission was punishable. The emphasis on conduct rather than on the specific description of the offence in substantive criminal law is of primary relevance.’ Cryer nevertheless concurs with Cassese’s assessment of certain persecution-type crimes against humanity. See ibid 260. 21 Rome Statute (n 14) art 8(2)(b)(iv). M Bothe, ‘War Crimes’ in Cassese, Gaeta and Jones (n 20) 400, who notes that the criminal sanction of environmental devastation ‘constitutes definite progress’. Prior to the Rome Statute, only Article 8 of the Draft Code of Crimes against the Peace and Security of Mankind, ILC, ‘Report of the International Law Commission on the Work of its 48th Session’ (6 May-26 July 1996) UN Doc A/51/10 (Supplement No 10), contained a war crime of environmental devastation, which, however, differs from the provision in Article 8 in as much as it applies to the use of ‘methods or means of warfare not justified by military necessity with the intent to cause widespread, longterm and severe damage to the natural environment and thereby gravely prejudice the health or survival of the population and such damage occurs’. But see also J M Henckaerts and L Doswald-Beck (eds), Customary International Humanitarian Law Volume I: Rules (Cambridge UP, Cambridge 2005) 582-583, in relation to Rule 156, who seem to base the conclusion that this war crime amounts to customary international law on the fact that ‘the inclusion of this war crime was not controversial during the negotiations of the [ICC Statute]’. This is notwithstanding that the acts prohibited under Article 8(2)(b)(iv) may very well fall under other customary war crimes, such as the prohibition of attacks against civilian objects. 22 Rome Statute (n 14) art 8(2)(b)(xxiii) [‘Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations’]. 23 Rome Statute (n 14) art 8(2)(b)(xxv). 24 See contra customary status Bothe (n 21) 402-403 [‘new and important development of the present statute’; ‘yet another new war crime’]; See pro customary status Henckaerts and Doswald-Beck (n 21) 581-582, 584 [Rule 156]. 25 Henckaerts and Doswald-Beck (n 21) 139-142 [Rule 42] and 581-584 [Rule 156]. 26 Cf Elements of Crimes (adopted 9 September 2002, entered into force 9 September 2002) ICC-ASP/1/3(part II-B) to Rome Statute (n 14) art 8(2)(b)(xvi). 27 Brollowski’s contribution in the present volume, at 93-110.

7

The Responsibility to Protect and Common Article 1 of the 1949 Geneva Conventions and Obligations of Third States Hanna Brollowski

1 Introduction The concept of the Responsibility to Protect (RtoP) is usually referred to as moral obligation or political concept. Yet, little reference is generally made to existing legal provisions. Surely, the concept is commendable in that it represents efforts to alleviate, if not prevent, human suffering worldwide. However, this chapter argues that based on the moral urge that requires governments to do ‘the right thing’, rather than founded on a legal obligation, the concept lacks rigour. The report of the International Commission on Intervention and State Sovereignty (ICISS), defining the concept of RtoP for the first time, suggested that sovereignty nowadays should be understood as a form of responsibility of a State towards its citizens, including certain protective functions.1 United Nations (UN) Secretary General Ban Ki-moon recently confirmed this understanding, stating that ‘[s]overeignty confers responsibility, a responsibility to ensure protection of human beings from want, from war, and from repression’.2 The principle of sovereign equality of States is enshrined in Article 2(1) of the UN Charter, which, however, fails to mention any form of responsibility specifically.3 Sceptics point out that in the Westphalian sense of the word, the concept should first and foremost be understood as a form to safeguard the identity of a State, irrespective of its size, wealth or political order, to guarantee to the State unimpeded power over its internal matters. Accordingly, sovereignty would signify the unimpaired capacity to make authoritative decisions with regard to the population and territory of the State. 4

H a n n a B r ollows k i / 94

Much of the existing opposition to RtoP seems to be based on this strand of thought. These States have protested against a right for third States to interfere within their sovereign matters.5 As pointed out by Claes’ work on ‘RtoP rejectionism’, some States even oppose the concept entirely.6 However, this chapter proposes that even if one were to subscribe to such a notion of sovereignty, it is clear that States have voluntarily surrendered parts of their otherwise unlimited power by signing certain treaties, thereby agreeing to be bound by their specific provisions and international law in general. It is crucial to focus on this aspect to counteract non-constructive, politically or morally motivated trends to the likes of RtoP, which potentially undermine existing legal tools. This becomes even more crucial in the fight against gross human rights violations such as those covered by the very concept, namely crimes against humanity, war crimes, genocide and ethnic cleansing.7 When contemplating the available legal tools covering these crimes, the four 1949 Geneva Conventions (GCI-IV)8 stand out. They are considered the cornerstones of international humanitarian law (IHL) and codify the most important rules applicable during international and national armed conflicts. In particular, their common Article 1 offers some interesting prospects for a system of internationally shared responsibility to address third State violations of GCI-IV,9 including scenarios covered by the ‘RtoP’ concept.

2

Interpretation and Meaning of Common Article 1 to the Geneva Convention

Common Article 1 states that ‘The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances’.10 Given State scepticism and resistance to the dynamic interpretation of international law, it seems advantageous to employ the traditional method of treaty interpretation based on the 1969 Vienna Convention on the Law of Treaties (VCLT)11 to arrive at an interpretation of common Article 1 and the obligation it codifies that will be acceptable to the majority of, if not all, States.12 Article 31 VCLT contains the core provision on the interpretation of treaties and reads as follows: 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

Rt o P an d C om m on Arti cle 1 o f the 1 9 4 9 Geneva Co nve nti on s / 95

3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to the term if it is established that the parties so intended.13

Following Article 31, one has to start with the ‘ordinary meaning of the terms in their context and in the light of the object and purpose of the treaty’. Returning to common Article 1, and for the principle of RtoP, the focus should be on the second half of the provision, and the undertaking ‘to ensure respect’. Such a focus is justified, because the undertaking ‘to respect’ should be understood as a repetition of the general obligation of States derived from the principle of pacta sunt servanda that requires States to adhere to their treaty obligations in good faith.14 Further, the obligation ‘to respect’ [the Convention] ‘in all circumstances’ is a reiteration of the provisions contained in the two 1929 Geneva Conventions.15 Thus, and especially for the purpose of RtoP and to determine the obligations of third States, it makes sense to focus on the words ‘to ensure respect’. These words were newly added in 1949 and it would be illogical to assume that no further obligation was to be derived from them. This would violate the fundamental rule of treaty interpretation concerning the effect util of each provision, requiring that a meaning is attributed to every word in the text. 16 Prominent scholars such as Frits Kalshoven argue by using the travaux preparatoires that Article 1 is ‘devoid of legal weight’ and that the intention of the drafters was only to emphasise the fact that States are meant to ensure their citizens abide by the law.17 In accordance with his line of thought, one would have to assume that because States are generally understood as signing treaties on behalf of their citizens,18 Article 1 does not add any further content to a State’s obligation. However, this argument is not tenable based solely on the preparatory history of the Geneva Conventions. According to Article 32 of the Vienna Convention on the Law of Treaties, the drafting history reflecting the intention of the drafters can only be considered of subsidiary importance in case the meaning of the provision would otherwise be ‘ambiguous, obscure or unreasonable’. 19 Returning to Article 31, however, preference should be given to the ordinary meaning, the object and purpose of the treaty and, additionally, the context of the treaty and subsequent agreements, as well as State practice. The ordinary meaning of the term ‘to ensure respect’ seems straightforward. It is underlined by the Commentary to Geneva Convention IV, in which Pictet states:

H a n n a B r ollows k i / 96

[t]he Contracting Parties should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that the humanitarian principles underlying the Convention are applied universally. 20

The object and purpose of the Geneva Conventions in 1949 and today is the protection of civilians and reduction of suffering during armed conflicts. Nonetheless, subsequent practice is less clear at first sight. Many instances and diplomatic statements speak for an interpretation from which obligations of third States can be derived under Article 1. Amongst these, the 1968 Teheran Conference on Human Rights in Armed Conflict and its outcome document are significant, as they confirm the duty of every State, party or not to a conflict, to ensure respect for IHL.21 A more recent example in binding context, citing Article 1, can be found in Security Council (SC) Resolution 681 (1990) concerning the Israeli-Palestinian conflict.22 The Security Council has repeatedly addressed specific conflicts,23 and general calls to uphold respect for humanitarian law have been made on a number of occasions by the General Assembly (GA).24 In addition, other international organisations, particularly regional ones, such as the European Union,25 but also the North Atlantic Treaty Organisation (NATO),26 and less prominent ones such as the Inter-Parliamentary Union27 or those not at first glance concerned with the enforcement of IHL, such as international financial institutions,28 have addressed the issue. Additionally, individual States such as Mexico have stressed ‘the principle that States parties to the Geneva Conventions are under the obligation to “respect and ensure respect” for international humanitarian law’.29 The inclusion of the same provision requiring States to ‘respect’ and ‘ensure respect’ in all circumstances in 1977 in Additional Protocol I to the Geneva Conventions of 12 August 1949 (API)30 is maybe even more telling. Again, the Commentary confirms, ‘the obligation to ensure respect for the Protocol falls also upon parties not involved in the conflict. In fact, ‘[T]hey have to use any lawful means at their disposal in their international relations to ensure that the High Contracting Parties involved respect the Protocol’.31 Further, in 2004, the International Court of Justice (ICJ) in the Wall Advisory Opinion confirmed that under common Article 1 to the Geneva Conventions, every State, whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with.32 These ‘instruments in question’ undoubtedly include the 1949 Geneva Conventions. Their significance was further emphasised by the same court in the Nicaragua,33 Threat to Use Nuclear Weapons34 and Corfu Channel35 cases. Although not referring to common Article 1 or the Geneva Conventions specifically, it is also worth recalling Judge Elihu Lauterpacht, who – in the course of the Genocide case – considered whether there was a duty of States to prevent genocide by another State.36 Although he was, in his words, ‘sympathetic in principle to the idea of an individual and collective responsibility of States for the prevention of

Rt o P an d C om m on Arti cle 1 o f the 1 9 4 9 Geneva Co nve nti on s / 97

genocide’,37 and found that such a positive duty ‘could’ be derived from Article 1 of the Genocide Convention, the lack of practice and ‘limited reaction’ of States to prevent genocide led him to conclude that there ‘may be ... a permissibility of inactivity’.38 By now the ICJ has confirmed the duty to prevent genocide,39 and there has been a continuous shift and growing momentum for the RtoP movement. This is particularly reflected in the continuous reference to the principle by government strategy papers, including the 2010 US National Security Strategy.40 From a purely legal perspective, and given the focus of this chapter on common Article 1, it is even more important to note that the Geneva Conventions have been universally ratified41 and are considered to codify customary law.42 This means that every single State is obliged to ‘ensure respect’ for them, irrespective of whether they include the RtoP principle in their national strategies. Lauterpacht was right when he found a lack of State practice in relation to the Genocide Convention. The same is true concerning the principle of RtoP. Such practice would indeed be required to construct an obligation on the basis of a customary rule, for which obviously opinio juris and practice are required.43 However, in the absence of a customary norm, States are in any case bound via their treaty obligation under common Article 1. In addition, it is important to stress that the obligation ‘to ensure respect’ should be regarded as one of ‘result’ rather than ‘conduct’.44 How this result is achieved is a question that is separate from the requirement that universal respect for the Geneva Conventions is ultimately to be achieved. It is therefore crucial not to mix questions concerning the existence of a rule with those questions concerning its scope. Despite the fact that both are inherently intertwined, it would be fatal to allow arguments that question the very existence of a rule by pointing out that its exact scope is not defined. Many rules of international human rights law require States to ensure the fulfilment of a right while leaving to their digression the specific conduct to achieve this aim, such as imposing a duty, the execution of which may occur by ‘all appropriate means’.45 This also means that any list of suggestions in this regard should never be regarded as exhaustive.46

3

Measures to be Taken by Third States to Fulfil the Obligation to ‘Ensure Respect’

Article 1 common to the Geneva Conventions is not equipped with an Annex or other supplementary document detailing the accurate steps to be taken by States to fulfil their obligation to ‘respect and ensure respect’. While all 329 Articles of the four Geneva Conventions47 collectively work towards the achievement of this overall goal, each provision must be accorded its autonomous meaning. Nonetheless, a few possibilities enumerated in the GC I-IV and API warrant special consideration. These are supplemented by other rules of international law,

H a n n a B r ollows k i / 98

for instance those outlining States’ obligations vis-à-vis the UN. In a world that has outgrown a Hobbesian outlook, concepts based on justness and morality should also function to fill the legal lacunae left, as would be in line with the rationale behind the famous Martens Clause indicating that any gaps would be addressed by ‘the laws of humanity and the requirements of the public conscience’.48

3.1 Measures within the Geneva Conventions

Articles 8/8/8/9 GCI-IV provide for the employment of Protecting Powers.49 This concept goes back to the sixteenth century, when many smaller States required the assistance of other nations. Their usage during times of armed conflict remained unregulated, with various optional tasks available. These were often limited, however, to the protection of diplomatic premises or assistance in the transmission of documents. An expansion in their role occurred only after the First World War, following which their potential to assist with matters concerning prisoners of war (POWs) was recognised.50 This was reflected in the inclusion of Article 86 in the 1929 Convention on Prisoners of War recognising the legal basis for Protection Powers to offer their services and requesting Detaining Powers to accept them.51 However, their neutrality remained at best questionable, as they were generally picked by only one party and focused on securing political interests rather than on the protection of individuals. This situation changed during the Second World War. Involving a much larger number of parties, the options available to States desiring to choose a Protection Power were limited. Playing to its general profile, Switzerland, for instance, performed this function simultaneously for up to 35 States.52 This development allowed for a more genuine focus on the role of Protection Powers as fostering humanitarian law in the interest of the civilian population in need of protection, rather than lobbying for the political interests of the States parties involved. Nonetheless, the tasks of Protection Powers remained limited to the treatment of POWs.53 In 1949, finally, a provision on Protecting Powers was included in all four Geneva Conventions, extending the mandate of Protection Powers significantly. Following these changes, in 1956 during the Suez conflict, Switzerland and India represented the British and French versus the Egyptian interests respectively. In 1961, Sweden protected Tunisian interests in France, and Switzerland protected French interests in Tunisia during the conflict over Bizerte. In 1961, Egypt protected Indian interests in Portugal and Portuguese interests were protected by Brazil during the conflict over Goa. In 1971, Switzerland protected the interests of both India and Pakistan during the conflict between them. Finally, in 1982, during the crisis between the UK and Argentina, British interests were protected by Switzerland and Argentinean interests by Brazil.54 Aldrich finds fault with this list and suggests that there has not been one genuine use of Protecting Powers,55 and even the International Committee of the Red Cross (ICRC) Commentary to API omits reference to the conflict over Bizerte, limiting the list of genuine usages of Protecting Powers before 1977 to three.56

Rt o P an d C om m on Arti cle 1 o f the 1 9 4 9 Geneva Co nve nti on s / 99

When drawing up API in 1977, it was hoped that a revival of the system could be achieved.57 Article 5 put emphasis on the fact that it was an obligatory duty of the Parties to a conflict to secure the supervision and implementation of GCI-IV and API&II through the help of Protecting Powers from the beginning. It suggests arrangements for their appointment as well as their replacement if necessary.58 Finally, it includes a reference to the role of the ICRC and other humanitarian organisations.59 But all to little avail. The option of employing Protecting Powers cannot realistically be considered functional today (if ever), and notwithstanding the potential role of other humanitarian organisations (mentioning by way of example the UN),60 the reference to the ICRC is crucial. Apart from this substitute, the ICRC has been given a mandate by all States parties to act as guardian of the Geneva Conventions by virtue of Article 5 of the Statute of the Red Cross and Red Crescent Movement.61 Hence, the organisation always retains a right to initiative granted by Article 9/9/9/10 GCI-IV and Article 81 (1) API. 62 Since 1979, the ICRC has frequently called on all High Contracting Parties, reminding them of their ‘duty’ to ensure respect of the Geneva Conventions by taking action in order to stop violations.63 For example, in 1984, then President Hay specifically recalled that ‘under Article 1 of the Geneva Conventions, it is the legal duty of States parties to ensure that governments engaged in an armed conflict respect these conventions’.64 ICRC appeals have never been met by criticism and no State has ever protested against these claims. In practice, States contributing funds to the ICRC support the organisation’s main goal to ensure humanitarian protection and assist victims of war and armed violence. Due to the neutrality and independence of the organisation, financial contributions may not be earmarked.65 States’ support for its efforts thus enables a general improvement of ‘respect for the Geneva Conventions’ and is consistent with the overall responsibility ‘to ensure such respect’. Seeing that the extent of such financial support falls within the discretion of each State, it would seem to be motivated by a sense of morality and humanity rather than to follow the dictates of a definite set of obligatory measures imposed by law. The absence of any such legally-defined measures may further be explained by the fact that any concept of an equal distribution of financial obligations to address worldwide humanitarian shortcomings would be extremely difficult to arrive at, given the extreme difference in States’ means and capabilities.66 This understanding is further reflected in Rule 144 of the ICRC study on Customary International Humanitarian Law, providing that States should ensure respect (of the Conventions) ‘to the degree possible’. The study goes on to clarify that this is purely a reference to the financial capabilities of the countries.67 Concepts such as the one of ‘Common but Differentiated Responsibilities’ that play a role in international environmental and international trade law may provide interesting avenues of thought here.68 A detailed discussion of such concepts in

H a n n a B r ollows k i / 100

relation to the obligation to ensure respect for the Geneva Conventions, however, may have to wait for another day. Apart from other options involving financial or material assistance to international relief organisations, a few more diplomatic alternatives exist which find mention in the Geneva Conventions. Article 7 API provides for the possibility of convening a meeting of the High Contracting Parties to ‘consider general problems concerning the application of the Conventions and of the Protocol’.69 However, this provision seems to aim at problems with the legal provisions and their implementation in general, rather than to concern specific conflict scenarios and the actions of a particular State. So far, there is no evidence suggesting that States have ever made use of this provision. A similar fate accrues to the International Fact-Finding Commission. The International Fact-Finding Commission was created as a permanent body with the primary purpose to investigate allegations of grave breaches and other serious violations of international humanitarian law in accordance with Article 90 of API.70 Officially constituted in 1991, and with Estonia being the latest State to join in February 2009, 71 States have so far accepted the competence of the Commission.71 In December 2009, it was granted observer status at the UN. Nonetheless, it has so far not been called upon and seems less relevant in the context of RtoP situations, which require immediate action to stop genocide, war crimes, crimes against humanity and ethnic cleansing. Similarly, the obligation on States contained in Articles 49/50/129/146-148 GCIIV,72 to repress crimes ex post facto through the pursuit of the alleged perpetrators particularly of grave breaches of the Geneva Conventions,73 via universal jurisdiction,74 fails to provide an effective solution to these emergency situations. Beyond individual action by States and their theoretical cooperation in initiatives such as the International Fact-Finding Commission or meetings of High Contracting Parties, there is the option to choose multilateral measures to ‘ensure respect’. Possibly most promising and relevant in the context of RtoP situations is the provision contained in Article 89 API which states that: In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter.75

In spite of previous concerns about UN involvement in the enforcement of IHL, with the UN deeming this task ‘counterproductive’ to its raison d’être,76 since 1969, the UN has become increasingly interested in the laws of war and engaged with the topic.77 This has accordingly been reflected in API. Despite the fact that the scope of Article 89 is narrower than what was suggested at the preparatory conferences, including, amongst others, calls for the establishment of an organ to assume the role of the Protecting Powers,78 it is significant to note that other IHL Conventions also mention a role for the UN. For instance, the Convention on the Prohibition of

Rt o P an d C om m on Arti cle 1 o f the 1 9 4 9 Geneva Co nve nti on s / 101

the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction79 and the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques contain similar provisions.80 The UN has thus been accorded particular importance in relation to possible multilateral ways to improve compliance with IHL.81 Furthermore, this is based on the UN’s own purpose and principles. The overriding goal of the UN is the ‘maintenance of international peace and security’ and ‘the promotion of fundamental human rights and freedoms for all’, including – in accordance with the Charter’s preamble – the determination ‘to save succeeding generations from the scourge of war’.82 These aims clearly transcend those situations foreseen in Article 89 specifically. Nonetheless, they clearly include those scenarios covered by the concept of RtoP. In accordance with Chapter IX, and specifically Article 56, of the UN Charter, all Member States pledge to contribute to the achievement of the purpose of the organisation,83 so that, given the near identical membership of the UN and GCI-IV,84 similar obligations in terms of ensuring respect for IHL within the scope of Article 89 fall upon States from two distinct legal documents. Nonetheless, it remains clear that, congruent with the latter part of Article 89, any action requires conformity with the UN Charter. Moreover, Article 103 of the Charter requires members’ obligations under the Charter to prevail over those under any other international agreement.85 Thus, no efforts may go beyond Charter law. Similar to those steps available to individual States, measures taken by the UN can range from diplomatic appeals to respect IHL, assistance in terms of material or personnel in order to improve protection of the civilian population, and the setting up of inquiries on compliance with the law, to coercive measures including the use of armed force.86 The authorisation of any of these measures underlies a detailed set of rules and procedures laid down in the Charter, which stipulates the exact powers and functions of the UN’s organs.87 Suffice it here to refer back to the beginning of this chapter to those instances where recourse to the GA or Security Council has been made. Furthermore, whereas the role of the Secretary-General in the promotion of (especially evolving) political principles, such as that of RtoP, is crucial, he may be considered to bear slightly less weight in relation to existing legal rules such as common Article 1. Here, the primary judicial organ of the UN, the ICJ, remains the go-to option for States to address their concerns about other States’ violations.88 The ICJ cases and advisory opinions enumerated above show that States have indeed made use of this option.

3.2 Other Available Measures

Measures not specifically referred to in GCI-IV include those typically available to all States to influence the ‘course of international law’ or, for that manner, any political matter of interest to them. One of those means are diplomatic statements about their own obligations, made either to pay allegiance to treaty obligations or possibly

H a n n a B r ollows k i / 102

to profess an opinio juris, such as the belief to be legally bound by a certain norm. Similar statements may be made to appeal to third States to uphold a certain norm. While analysing State practice relevant for a correct interpretation of the meaning of common Article 1, the first part of this chapter gave a number of examples of such instances where States have confirmed in diplomatic fora their appraisal of IHL, as well as their belief to be bound by common Article 1 and the duty ‘to respect and ensure respect’ for it. Failing the effectiveness of these appeals, other measures available on a diplomatic level include the expulsion of diplomats, severance of diplomatic relations or putting a halt to other diplomatic negotiations.89 In a similar vein, trade relations may be terminated or international aid assistance restricted. Any coercive measures, particularly any use of armed force, which does not comply with international law, cannot be considered at States’ disposal,90 given the general consensus concerning the prohibition of the use of force as treaty, customary and even ius cogens norm.91 Nonetheless, disagreements have occurred in recent years concerning the scope of this prohibition in situations of humanitarian crisis. The most dramatic debate in this respect was triggered in 1999 by NATO’s Operation Allied Force in Kosovo.92 Ultimately, the doctrine of humanitarian intervention outside the existing rules on the use of force remains at best controversial.93 It cannot be considered legally accepted on its own merits, and clearly does not fit within the scope of common Article 1. Based on the maxim ex inura, ius non oritur, Article 1 does not have the power to transform otherwise illegal action into lawful behaviour. Intentions to enforce one’s own obligations cannot be considered capable of functioning as a pretext to changing the international legal order, least of all on the use of force. After all, it would, in the words of Yves Sandoz, ‘indeed be unthinkable to see international humanitarian law, whose philosophy it is not to link its application to jus ad bellum, itself become a pretext for armed intervention’.94 Outside the scope of the UN, in principle, of course, other multilateral avenues are open to States to fulfil their legal obligations and induce other States to comply to uphold law. States have indeed made use of such measures, most often in the form of verbal protests, as shown above.

4 Conclusion Despite a number of avenues open for States to ensure respect of the Geneva Conventions, decided action of third States has indeed been scarce. One might suggest that a certain absence of visible State practice is due to the confidential nature of diplomatic correspondence practiced by States. However, this reasoning does not appear sufficiently convincing. It would seem that third parties do display an interest in showing their efforts to uphold the law and end human suffering. Ultimately, (mostly Western) States have successfully employed their foreign political aims to win over voters at home. In a climate of economic crises and decline this may

Rt o P an d C om m on Arti cle 1 o f the 1 9 4 9 Geneva Co nve nti on s / 103

be more difficult, given voters’ myopic focus on the home turf. Especially in this scenario, it is more important than ever to remind States that they may not opt in or out of political movements, such as that connected to RtoP, in accordance with the overriding national disposition. Their international engagement to end crimes against humanity, war crimes, genocide and ethnic cleansing, as well as other violations of the Geneva Conventions, is not an option, but dictated by international law. Even if Kalshoven was right and the drafters of the Geneva Conventions were not aware of it in 1949, a purposive interpretation in accordance with the principle of effectiveness and the Vienna Convention on the Law of Treaties undoubtedly leads to the conclusion that today, common Article 1 creates obligations for third States. It requires States to ensure that no other State commits genocide, war crimes, or crimes against humanity. Admittedly, the obligation may be weak, in that it leaves the measures ‘to ensure respect’ to the discretion of States. But attention should be directed towards the positive force of the provision. Rather than chasing an emerging norm of RtoP that may lead to the erosion of existing rules, use should be made of the existing legal instruments. Article 1 offers a valuable legal basis for the concept of RtoP, and one that should be used and referred to where possible.

Notes 1 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) accessed 22 March 2011 (ICISS Report) para 2.14-2.15. 2 Citation of the Cyril Foster lecture at Oxford University, 2 February 2011, UN News Centre, accessed 22 March 2011. 3 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN Charter) Art 2(1), see also Art 2(7) including the prohibition of intervention within the domestic jurisdiction of States. 4 For the ordinary meaning of the term, cf Oxford’s Concise Dictionary (9th ed, Oxford UP, Oxford 1995). 5 See for instance State opinion at the presentation of the UNSG’s Report ‘In Larger Freedom’ in 2005 accessed 16 August 2010. 6 See presentation by J Claes on ‘The Drivers of R2P Rejectionism’ at the RtoP Conference on 9 June 2010 < http://mantlethought.com/content/r2p-essay-3> accessed 29 March 2011. 7 ICISS Report (n 1). 8 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 (First Geneva Convention); Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 (Second Geneva Convention); Convention (III) relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135 (Third Geneva Convention);

H a n n a B r ollows k i / 104

Convention (IV) relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (Fourth Geneva Convention) (collectively referred to as ‘the Geneva Conventions’ or ‘the Conventions’) Art 1. 9 A vast amount of literature supports this approach. L Boisson de Chazournes, and L Condorelli, ‘Common Article 1 of the Geneva Conventions revisited: Protecting collective interests’ (2000) 837 IRRC 67; H Tonkin, ‘Common Article 1: A Minimum Yardstick for regulating Private Military Security Companies’ (2009) 22 LJIL 779; L Condorelli and L Boisson de Chazournes, ‘Quelques remarques a propos de I’ obligation des Etats de ‘respecter et faire respecter’ le droit international humanitaire en toutes circonstances’, in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (Martinus Nijhoff Publishers, The Hague/Geneva 1984) 17-35; H P Gasser, ‘Ensuring Respect for the Geneva Conventions and Protocols: The Role of Third States and the United Nations’, in H Fox and M Meyer (eds), Armed Conflict and the New Law, Vol. II, Effecting Compliance (The British Institute of International and Comparative Law, London 1993) 15-49; U Palwankar, ‘Measures Available to States for Fulfilling their Obligation to Ensure Respect for International Humanitarian Law’ (1994) 298 IRRC 9. 10 The Geneva Conventions (n 8). 11 Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT). 12 Despite the fact that not all States are party to the VCLT (for instance the US), many of its provisions are understood to codify customary law, amongst which Article 31-33; Corfu Channel (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4 (Corfu Channel case) at 22. 13 VCLT (n 11) Art 31. 14 Ibid Art 26. 15 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (adopted 27 July 1929, entered into force 19 June 1931) 118 LNTS 303, Art 25; Convention Relative to the Treatment of Prisoners of War (adopted 27 July 1929, entered into force 19 June 1931) 118 LNTS 343, Art 82. 16 Anglo-Iranian Oil Co (United Kingdom v Iran) ( Jurisdiction) [1952] ICJ Rep 93 at 105; Corfu Channel case (n 12) at 124; Territorial Dispute (Libyan Arab Jamahiriya v Chad) [1994] ICJ Rep 6 at 24. 17 F Kalshoven, Reflections on the Law of War (Nijhoff, Leiden 2007) 665 ff. 18 J S Pictet, The Geneva Conventions of 12 August 1949: Commentary (ICRC, Geneva 1959) 16. 19 VCLT (n 11) Art 32: ‘Supplementary means of interpretation: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.’ 20 The full text reads: ‘In the event of a power failing to fulfill its obligation, the other Contracting Parties (neutral, allied or enemy) may, and should, endeavor to bring it back to an attitude of respect for the Convention. The proper working of the system of protection provided by the Convention demands in fact that the Contracting Parties should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that the humanitarian principles underlying the Convention are applied universally’. Pictet (n 18) Commentary to GC IV, 16. 21 Human Rights in Armed Conflicts, Resolution XXII, adopted by the International Conference on Human Rights, Teheran, 12 May 1968, 66 votes in favour, two abstentions and no opposing vote.

Rt o P an d C om m on Arti cle 1 o f the 1 9 4 9 Geneva Co nve nti on s / 105

22 UNSC Res 681 (20 December 1990) UN Doc S/RES/681 (1990): calling on High Contracting Parties to ‘ensure respect by Israel … for its obligations under the conventions in accordance with Article 1 thereof ’. 23 For example: UNSC Res 788 (19 November 1992) UN Doc S/RES/788 (1992) on Liberia; UNSC Res 822 (30 April 1993) UN Doc S/RES/822 (1993) and UNSC Res 853 (29 July 1993) UN Doc S/RES/853 (1993) on Armenia and Azerbaijan; UNSC Res 834 (1 June 1993) UN Doc S/RES/834 (1993); UNSC Res 851 (15 July 1993) UN Doc S/RES/851 (1993) and UNSC Res 864 (15 September 1993) UN Doc S/RES/864 (1993) on Angola etc. 24 For instance UNGA Res 2674 (XXV) (9 December 1970); UNGA Res 2677 (XXV) (9 December 1970); UNGA Res 2852 (XXVI) (20 December 1971); UNGA Res 2853 (XXVI) (20 December 1971); UNGA Res 3032 (XXVII) (18 December 1972); UNGA Res 3102 (XXVIII) (11 December 1973); UNGA Res 3319 (XXIX) (14 December 1974); UNGA Res 3500 (XXX) (15 December 1975); UNGA Res 32/44 (8 December 1977) UN Doc A/RES/32/44; UNGA Res 40/137 (13 December 1985) A/RES/40/137; UNGA Res 47/37 (25 November 1992) A/RES/47/37; UNGA Res 48/30 (9 December 1993) A/RES/48/30; UNGA Res 50/193 (22 December 1995) A/ RES/50/193; On the value of GA resolutions as evidence of State conviction and possible emergence of opinio juris, see also: Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 (Threat or Use of Nuclear Weapons opinion) para 70. 25 See for instance European Union Guidelines on promoting compliance with international humanitarian law (IHL) (2005/C 327/04) accessed 22 March 2011; The European Parliament for instance recently reiterated its interest in following up on the UN fact-finding mission report on the conflict in Gaza and southern Israel, to ensure ‘the implementation of its recommendations and accountability for all violations of international law including alleged war crimes’ and urging both sides to conduct investigations that meet international standards of independence, accessed 22 March 2011; See also Council of European Parliamentary Assembly, Res 823, para 300, Res, 881, para 31, Res 921, para 32, and Res 948, para 33; Council of Europe Committee of Ministers, Declaration on the rape of women and children in the territory of the former Yugoslavia, para 34. 26 NATO Parliamentary Assembly, Resolution of the Civilian Affairs Committee, para 35; OAU, Conference of African Ministers of Health, Res 14(V) (26-28 April 1995) para 36; OAS, GA Res 1408 (XXVI-O/960) para 4. 27 News release  09/209 (19 October 2009) accessed 22 March 2011: ICRC and IPU urge lawmakers to ensure greater respect for rules of war. 28 D Bradlow, ‘Should the International Financial Institutions play a role in the Implementation and Enforcement of International Humanitarian Law?’ (2001) 50 UKanLR 695. 29 Mexico, Comments of 15 November 1995 on Declaration of Minimum Humanitarian Standards included in the Report of the UNSG prepared pursuant to UNCHR resolution 1995/29 (28 November 1995) UN Doc E/CN4/1996/80, para 10; See also US Department of Defence, Final Report to Congress on the Conduct of the Persian Gulf War, Appendix O, The Role of the Law of War (10 April 1992) 31 ILM 1992, 633: ‘Common Article 1 of the four Geneva Conventions for the Protection of War Victims requires that parties to those treaties “respect and ensure respect” for each of those treaties’. 30 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (Geneva Conventions Protocol I) Art 1.

H a n n a B r ollows k i / 106

31 M Bothe, K J Partsch and W A Solf, New Rules for Victims of Armed Conflict: Commentary on the Two Protocols Additional to the Geneva Conventions of 1949 (Martinus Nijhoff, The Hague 1982) 43. 32 Legal Consequences of the Construction of a Wall (Advisory Opinion) [2004] ICJ rep 136 (Palestinian Wall opinion) para 158 and 163. 33 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Rep 14 (Nicaragua case) para 220. 34 Threat or Use of Nuclear Weapons opinion (n 24). 35 Corfu Channel case (n 12). 36 Separate Opinion of Judge Lauterpacht in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Provisional Measures) [1993] ICJ Rep 407. 37 Ibid para 115. 38 Ibid para 113-5. 39 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 2 (Genocide case). 40 See for instance Germany, White Paper on German Security Policy and the Future of the Bundeswehr (2006) accessed 22 March 2011; France, The White Paper on Defense and National Security (2008) accessed 22 March 2011, and France and Europe in World Politics (2008) accessed 22 March 2011; The United Kingdom, National Security Strategy of the United Kingdom (2008) accessed 22 March 2011; Norway’s White Papers entitled Norway’s Humanitarian Policy accessed 22 March 2011, and Climate, Conflict and Capital: Norwegian Development Policy Adapting to Change (2009) accessed 22 March 2011; The United States, National Security Strategy (2010) accessed 22 March 2011. 41 According to the ICRC, 194 states are parties to the Geneva Conventions; see: accessed 22 March 2011. 42 Nicaragua case (n 33) para 79, 81 and 82; Corfu Channel case (n 12) at 22. 43 North Sea Continental Shelf (Federal Republic of Germany/Denmark, Federal Republic of Germany/ The Netherlands) (Merits) [1969] ICJ Rep 3, para 49. 44 F Azzam, ‘The Duty of Third States to Implement and Enforce International Humanitarian Law’ (1997) 66 NJIL 55. 45 Cf for example: International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR) Art 2 (1): The right to health is just one example of a provision whose legal persuasiveness would be fundamentally weakened, were one to allow such reasoning. See also the work of International Law Commission on obligations of conduct v result and CESCR, General Comment 3: The Nature of States Parties Obligations (Art 2 par 1 of the Covenant) UN Doc 14/12/90. 46 Ibid; Some of the examples mentioned in General Comment No 3 include administrative, financial, educational and social measures. 47 Counted without Annexes.

Rt o P an d C om m on Arti cle 1 o f the 1 9 4 9 Geneva Co nve nti on s / 107

48 Hague Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (adopted 29 July 1899, entered into force 04 September 1900) reprinted in: D Schindler and J Toman, The Law of Armed Conflict (Brill, Leiden 1988) 63, preamble. 49 The Geneva Conventions I-IV (n 8) Art 8/ 8/ 8/ 9: The text reads in part ‘The present Convention shall be applied with the cooperation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict’. 50 Cf Pictet (n 18) Commentary to Art 8. 51 Convention relative to the Treatment of Prisoners of War (n 15) Art 86. 52 Pictet (n 18) Commentary to Art 8; See also UN Charter (n 3) Art 2(1) and (7). 53 Ibid. 54 Cf K Doermann, ‘Dissemination and Monitoring Compliance of International Humanitarian Law’ in H von Heinegg and V Epping (eds), International Humanitarian Law Facing New Challenges (Springer, Berlin Heidelberg, 2007) 227, 236 and G Abi-Saab, ‘The implementation of Humanitarian Law’ in A Cassese (ed), The New Humanitarian Law of Armed Conflict (Editoriale Scientifica, Naples 1979) 316 and S-S Junod, Protection of the Victims of Armed Conflict in the Falkland-Malvinas Islands (1982): International Humanitarian Law and Humanitarian Action (ICRC, Geneva 1984) 20. 55 G H Aldrich, ‘New Life for the Laws of War’ (1981) 75 AJIL 764, 765 ff. 56 It does so with reference to the work of Jean Pictet, Humanitarian Law and the Protection of War Victims (Sijthoff, Geneva-Leiden, 1975) 66. 57 G H Aldrich (n 55). 58 Geneva Conventions Protocol I (n 30) Art 5(3) and (4). 59 Ibid. 60 Bothe (n 31) Commentary to Art 5: The Commentary also refers to the role of the Order of Malta which indicated its preparedness to take a substitute role; cf CDDH, Official Records Vol VII, CDDH/SR58 (9 June 1977) 317, para 185-7, and notification by the depositary of 2 May 1980. 61 Statutes of the International Red Cross and Red Crescent Movement (adopted by the 25th International Conference of the Red Cross at Geneva in 1986, entered into force 8 November 1986, amended in 1995 and 2006) accessed 4 April 2011, Art 5. 62 Geneva Conventions I-IV (n 8) Art 9/9/9/10 and Geneva Conventions Protocol I (n 30) Art 81. 63 See the different appeals of the ICRC in Rhodesia/Zimbabwe (1979) 19 IRRC 87-90; first appeal Iran/Iraq (1983) 23 IRRC 220-2; second and third appeal Iran/Iraq (1984) 24 IRRC 113-5 and 357-8; Appeal for a Humanitarian Mobilisation (1985) 25 IRRC 31-4; BosniaHerzegovina (1992) 32 IRRC 492-3; Resolution II of the council of delegates in Birmingham, The International Conference for the Protection of War Victims (1995) 35 IRRC 317; as well as keynote address on the occasion of the 26th International Conference of the Red Cross and Red Crescent (1996) 36 IRRC 28-9; See also J-M Henckaerts and L Doswald-Beck, Customary International Humanitarian Law (Cambridge UP, Cambridge 2005) Rule 144. 64 F Azzam, ‘The Duty of Third States to Implement and Enforce International Humanitarian Law’ (1997) 66 NJIL 55, fn 19. 65 Further in accordance with the seven general principles of the ICRC as proclaimed by the XXth International Conference of the Red Cross, ‘humanity, impartiality, neutrality, independence, voluntary service, unity and universality’ accessed 7 April 2011. 66 During the last couple of years the United States of America, the United Kingdom and the European Union have been amongst the most generous donors to the ICRC. 67 Henckaerts (n 63) Rule 144. 68 See Centre for International Sustainable Development and Law, The Principle of Common but Differentiated Responsibilities: Origins and Scope (Prepared for the World Summit on Sustainable Development, Johannesburg 2002) accessed 7 April 2011; G Blum discusses the concept in a different context but touches on IHL in ‘On a Differential law of War’ (2011) 52 HarvILJ 164. 69 Geneva Conventions Protocol I (n 30) Art 7. 70 Geneva Conventions Protocol I (n 30) Art 90; See also A Roach, ‘The International FactFinding Commission, Article 90 of Protocol I Additional to the 1949 Geneva Conventions’ (1991) 31 IRRC 167. 71 International Humanitarian Fact-Finding Commission, ‘States Parties’ accessed 23 June 2011. 72 Geneva Conventions I-IV (n 8) Art 49/50/129/146-148; cf also the duty aut dedere, aut judicare codifying the obligation to either try or extradite the individual to a country willing to try him or her. 73 Geneva Convention IV (n 8) Art 147: Grave breaches include ‘the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’; N Wagner, ‘The development of the grave breaches regime and of international criminal responsibility by the International Criminal Tribunal for the Former Yugoslavia’ (2003) 85 IRRC 351. 74 C Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’ (2001) 42 Virginia Journal of International Law 81; S Macedo (ed), Universal Jurisdiction, National Courts and the Prosecution of Serious Crimes under International Law (University of Pennsylvania Press, Philadelphia, 2004); H Kissinger, ‘The Pitfalls of Universal Jurisdiction’ (2001) 80 Foreign Aff 86; K Roth, ‘The case for Universal Jurisdiction’ (2001) 80 Foreign Aff 150; M Inazumi Mitsu, Universal Jurisdiction in Modern International Law, Expansion of National Jurisdiction for Serious Crimes under International Law (Intersentia, Antwerp 2005). 75 Geneva Conventions Protocol I (n 30) Art 89. 76 Report of the International Law Commission, Yearbook of the ILC, 18, 1949: Initially, even the ILC refused to include the laws of war in its agenda, due to the fact that UN involvement with IHL was seen as admittance of failure of the UN to maintain peace and security. In addition it was feared the inclusion of IHL in the UN agenda would lead to an undermining of the prohibition on the use of force as laid down in Article 2 (4) of the Charter. 77 See Respect of Human Rights in Armed Conflicts, UNGA Res 2444(XXIII) (19 December 1968); See also the two reports prepared by the UNSG in response, ‘Respect for Human Rights in Armed Conflicts’, UN Doc A/7720 (1969) and UN Doc A/8052 (1970).

Rt o P an d C om m on Arti cle 1 o f the 1 9 4 9 Geneva Co nve nti on s / 109

78 Abi-Saab (n 54) 339. 79 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (adopted 10 April 1972, entered into force 26 March 1975) 1015 UNTS 163, Art 6. 80 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (adopted 18 May 1977, entered into force 5 October 1978) 1108 UNTS 151, Art 5. 81 See for instance address by J Kellenberger (President of the ICRC) ‘Ensuring respect for international humanitarian law in a changing environment and the role of the United Nations’ (26 September 2009) 60th Anniversary of the Geneva Conventions, Ministerial Working Session accessed 7 April 2011. 82 UN Charter (n 3) preamble and Art 1. 83 Ibid Art 56. 84 There are currently 194 parties to the Geneva Conventions and 192 members of the United Nations; For UN membership see: accessed 7 April 2011; for membership to the four Geneva conventions see: accessed 7 April 2011. 85 UN Charter (n 3) Art 103. 86 Ibid Arts 10, 11, 12, 14, 15, 24 and 39-51. 87 Ibid Arts 10-17: Functions and powers of the UNGA; UN Charter (n 3) Arts 24-26: Functions and powers of the UNSC, Arts 33-38 on Pacific Settlement of Disputes, and Arts 39-51 for action with respect to Threats to the peace breaches of the peace and acts of aggression. For an analysis of the division of powers see C Grey, International Law and the Use of Force (Oxford UP, Oxford 2004) 200 ff; C Bourloyannis, ‘The Security Council of the United Nations and the Implementation of International Humanitarian law’ (199192) 20 DenJILP 335. 88 UN Charter (n 3) Art 92. 89 Palwankar (n 9): He lists for example the Hostage Crisis at the Embassy of the United States in Teheran, when the US expelled some Iranian diplomatic personnel from the country and soon after ended diplomatic relations with Iran. 90 For a different opinion on this point, see Palwankar (n 9); Geneva Convention I (n 8) Art 46: Prohibition of reprisals in IHL; cf K Obradovic ‘The prohibition of reprisals in Protocol I: greater protection for war victims’ (1997) IRRC 320. 91 Nicaragua case (n 33) para 190; A Cassese (ed), Current Legal Regulations on the Use of Force (Martinus Nijhof Publishers, Dordrecht 1986); C Grey (n 87); T Gazzini, The Changing Rules on the Use of Force in International Law (Manchester UP, Manchester 2005); See also the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States, UNGA Res 2625 (XXV) (24 October 1970). 92 For arguments pro and contra see: B Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’ (1999) 10 EJIL 1; A Cassese, ‘Ex iniura ius oritur: Are we moving towards international legitimisation of forcible humanitarian countermeasures in the world community?’ (1999) 10 EJIL 23; N Krisch, ‘Review Essay: Legality, Morality and the dilemma of Humanitarian Intervention after Kosovo’ (2002) 13 EJIL 323; D Kritsiotis, ‘The Kosovo Crisis and NATO’s Application of Armed Force against the Federal Republic of Yugoslavia’ (2000) 49 ICLQ 330. 93 Foreign and Commonwealth Office Paper No 148, ‘Is intervention ever justified?’ (1986) 57 BYIL 619: Or, as the UK put it in 1986, ‘the best case that can be made in support of

H a n n a B r ollows k i / 110

humanitarian intervention is that it cannot be said to be unambiguously illegal’; Nicaragua case (n 33) para 268: The doctrine was rejected by the ICJ; NATO Press Release 99/12 (30 January 1999): NATO itself did not rely on it as a legal basis. 94 Palwanker (n 9) fn 5.

8

The Responsibility to Prevent On the Assumed Legal Nature of Responsibility to Protect and its Relationship with Conflict Prevention Hanne Cuyckens and Philip De Man

1 Introduction In the historic final document of the 2005 World Summit (WSO Document), the international community for the first time explicitly accepted responsibility for helping to protect populations from certain categories of mass atrocities, if sovereign states themselves failed to do so. The acceptance marked not the end, but the beginning of a long process of consensus-building, which set out to determine how the notion should be interpreted and implemented. These two aspects are intrinsically related and influence each other: without a clear consensus on the exact contours of the notion (and hence the international community’s responsibility regarding populations), efficient and effective operationalisation of the Responsibility to Protect (RtoP) through intensive cooperation with myriad national, regional and international actors remains but a vague and distant ambition with no real prospect of realisation. It is widely acknowledged that there is an urgent need to implement the RtoP concept, and that the concept needs to be implemented now if we are to prevent more conflicts from escalating into disaster. The implementation of a new notion by a wide array of partners should start with a clear and common understanding of what the notion entails, in the light of related pre-existing notions. The aim of the present contribution is therefore to critically assess the added legal value of the RtoP concept, in the light of the related notion of conflict prevention as developed over the past two decades at both the international and the European level. It will be argued that recent developments in both fields have resulted in a conceptual entanglement that significantly compounds the practical operationalisation of the RtoP concept.

H a n n e C u y c k en s and P h ili p De Ma n / 112

To this end, the first half of this chapter will give a brief overview of the evolution of the RtoP concept in the main documents at the international level. This section will show that the RtoP notion endorsed by the 2005 WSO Document has been stripped of the key innovative legal features that were proposed four years earlier. What remains is a largely political notion that is primarily dedicated to the prevention of four narrowly circumscribed categories of international crimes. If a newly introduced concept that is related to other pre-existing notions is deprived of its distinguishing characteristics, we should assess whether the new notion really adds anything to the discussion, particularly if the resulting conceptual confusion hampers its implementation. Therefore, the second half of this chapter will start with a brief analysis of the conceptual expansion of the notion of conflict prevention at the level of the United Nations (UN) and the European Union (EU) since the mid-1990s. The findings of this analysis point to a significant overlap between conflict prevention and the current interpretation of the RtoP concept. Building on this analysis, it will then be argued that, as the broad interpretation of conflict prevention as a catch-all concept without a clear focus has severely hampered its operationalisation, the present evolution of RtoP as a notion similar to conflict prevention can only further exacerbate this problem. The lack of any clear conceptualisation of either RtoP or conflict prevention and the practical impossibility of delineating a preventative approach to genocide, war crimes and crimes against humanity thus to a large extent negate the potential benefits of the ‘narrow but deep approach’ that has permeated the discourse on RtoP.

2

Assessing the content of RtoP

The notion of RtoP was developed and interpreted in four major documents: the report of the International Commission on Intervention and State Sovereignty (ICISS);1 the report of the High-Level Panel on Threats, Challenges and Change;2 UN Secretary-General Kofi Annan’s report ‘In Larger Freedom’;3 and finally, paragraphs 138 and 139 of the WSO Document,4 in which the UN General Assembly (UNGA) officially endorsed the concept of RtoP. This chapter does not intend to analyse these documents in detail, as this is already the subject of other contributions to this volume. Nevertheless, a correct understanding of the topics addressed in this chapter requires that some issues be highlighted in order to grasp the exact meaning of the RtoP concept as accepted today by the international community. First of all, the scope of application of the concept was progressively reduced in the course of the four above-mentioned documents. Whereas the ICISS Report refers to ‘large-scale loss of life’ as the threshold for activating the responsibility to protect, the 2004 High-Level Panel Report limited the scope of RtoP to a closely circumscribed set of international crimes, namely genocide, war crimes, crimes against humanity and ethnic cleansing, although the latter is not generally accepted as a separate crime.5 Second, none of the above

T h e R es p on s i b i li t y to Preven t / 113

documents seem to address the important issue of enforceability of the collective responsibility to protect. In other words, what happens when the international community fails to implement its collective responsibility to protect? Who is to act if the international community does not? While the ICISS Report envisages the possibility of unilateral action by individual countries as a means of fulfilling RtoP, the concept as endorsed in the WSO Document strictly limits the authority for exercising collective RtoP to the UN Security Council (UNSC). The final version’s disregard for the possibility of military intervention outside the framework of the UN and the failure to address the issue of the legal responsibility of the international community in the case of failure to implement RtoP have stripped the concept of its main potentially innovative features. It is often assumed that paragraphs 138 and 139 of the WSO Document create an additional obligation for states and the international community to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, and consequently that RtoP constitutes a new international norm that is distinct from pre-existing legal obligations.6 It is difficult to sustain, however, that what ultimately remains of the watered-down RtoP concept as finally endorsed by the international community of states in the WSO Document is a new legal norm, as opposed to the concept initially proposed by the ICISS four years earlier. This is already evident from the 2009 report of the current UN Secretary-General Ban Ki-moon on implementing the responsibility to protect, in which it is explicitly stated that ‘the provisions of paragraphs 138 and 139 of the WSO Document are firmly anchored in well-established principles of international law’.7 These ‘firm anchors’ can be traced back to various branches of international law, ranging from human rights law and international criminal law to the rules on state responsibility. Most of these aspects have already been highlighted in other contributions to this volume and will therefore not be elaborated upon in this chapter. The relation between RtoP and international criminal law will be covered briefly, however, as a correct understanding of this aspect of RtoP requires that we link it with the broader theme of conflict prevention. Concerning the RtoP obligations of states and the international community to protect populations from war crimes, crimes against humanity, ethnic cleansing and genocide, the legal obligation that is most developed under international criminal law relates to the crime of genocide. Article 1 of the 1948 Genocide Convention holds that ‘[t]he Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish’.8 This provision has to be interpreted in line with two proceedings before the International Court of Justice (ICJ). First, the ICJ held in its Advisory Opinion on Reservations to the Genocide Convention that the Convention was clearly meant to be universal in scope and that ‘the principles underlying the Convention are principles which are recognised by civilized nations as binding on States even without any conventional obligation’.9 The ICJ declared that the universal character of the obligation concerns both ‘the condemnation

H a n n e C u y c k en s and P h ili p De Ma n / 114

of genocide and … the co-operation required “in order to liberate mankind from such an odious scourge” (Preamble to the Convention)’.10 Second, in the Bosnian Genocide case, the Court recently confirmed that there is indeed a legal obligation for states to prevent genocide, by finding that Serbia had violated its obligation in this respect under the Genocide Convention in the case of the killings that occurred in Srebrenica in July 1995. If we combine this judgment with the findings under the Advisory Opinion cited above, we find that the obligation to prevent genocide has a universal character and is therefore binding even in the absence of any conventional obligation.11 More interestingly, the Court notes that even if the UN acts to prevent genocide, states are not relieved from their duties and have to act to prevent genocide as well.12 It is important to clarify that the obligation to prevent genocide is an obligation of conduct and not an obligation of result.13 In other words, ‘a State cannot be under an obligation to succeed … in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible’.14 The obligation to prevent genocide was thus already quite well-established under international criminal law before RtoP began to dominate the debate. The content of the obligation to prevent war crimes and crimes against humanity is less clear, however.15 If, to a certain extent, the obligation to prevent war crimes is laid down in the Geneva Convention and its additional protocols, there is no international convention that explicitly imposes obligations on the international community to prevent crimes against humanity. In any case, as the responsibility to protect populations from these crimes is, according to UN Secretary-General Ban Ki-moon, ‘firmly anchored in well-established principles of international law’,16 it is clear that the content of this obligation cannot, as such, differ greatly from what is found in international criminal law in this respect.

3

RtoP as a framework for prevention

Now that we have established that RtoP does not in any significant way depart from the legal obligations and responsibilities of states and the international community already found in related branches of general international law, including international criminal law, we should examine what RtoP does, in fact, entail. While the academic debate surrounding the concept of RtoP often revolves around the responsibility to react,17 it is clear that all of the official documents on RtoP have focused on its preventive aspect. This section will therefore take a look at the prevention aspect of the notion of RtoP in order to compare it with the way conflict prevention is defined by the UN and the EU. In order to do so, we will first analyse how conflict prevention is interpreted in these two organisations, and show that both define the concept broadly. We will then look at the preventive aspect of the notion of RtoP and argue that the concept of conflict prevention and the responsibility to prevent have become entangled, which further compromises the potential operability of the notion of RtoP.

T h e R es p on s i b i li t y to Preven t / 115

3.1 Conflict prevention at the UN and the EU

First, it is important to briefly define a number of terms that are often used interchangeably: namely, conflict prevention; conflict management; conflict resolution; and crisis management. The difference between conflict prevention and conflict management is twofold. First, conflict prevention refers to a set of instruments, while conflict management is a more theoretical concept. Second, whereas conflict prevention aims at preventing or solving disputes before they evolve into actual conflicts, conflict management focuses more on the limitation, mitigation and containment of conflicts, without necessarily planning to solve them.18 Crisis management is an overarching concept that encompasses the various responses to conflict situations. Even though in theory, these concepts can be clearly separated, the differences between them tend to get blurred in practice. At this point, it is also useful to identify the different stages of the so-called conflict cycle. Broadly speaking, five levels of intensity can be identified in the life-cycle of a conflict: stable peace, unstable peace, open conflict, crisis and finally war.19 The right strategy for dealing with a particular conflict not only depends on the level of intensity that the conflict has reached, but also on whether the conflict is in the escalation or de-escalation phase.20 The following model shows the different strategies corresponding to the different phases of conflict.

The conflict cycle Conflict intensity level

Escalation Phase

De-escalation Phase

Peace enforcement

Crisis

Crisis management

Peace keeping

Open conflict

Conflict management

Conflict management

Direct prevention

Peace building

Structural prevention

Peace consolidation

Unstable peace Stable peace

Early stage

Mid-stage

Late-stage

Duration of conflict

Source: N Swanstrom and M Weissmann, ‘Conflict, Conflict Prevention, Conflict management and Beyond: A Conceptual Exploration’ (2005) Concept Paper Central AsiaCaucasus Institute & Silk Road Studies Programme, 11

Interest in conflict prevention has grown considerably since the 1990s, and the subject has been tackled in numerous policy documents. However, there is a gap

H a n n e C u y c k en s and P h ili p De Ma n / 116

between the rhetoric on conflict prevention and its implementation.21 The concept of conflict prevention tends to be interpreted widely, which may hamper its implementation if not accurately delineated by all actors involved. These actors are, first and foremost, the UN and in particular the UNSC, which, pursuant to Article 24 of the UN Charter,22 has primary responsibility for the maintenance of international peace and security. The UN is assisted in the complex task of conflict prevention by a panoply of international and regional actors. Chapter VIII of the UN Charter identifies regional agencies and arrangements as pivotal partners in this respect. Among these, the EU in particular is commonly identified as a crucial player in conflict prevention, given the broad range of instruments at its disposal. The conflict prevention notion as interpreted by the UN has expanded considerably over time. One of the main purposes of the UN is to ‘[t]o maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace’.23 Even though conflict prevention has always been an implied task of the UN, it was not until the end of the Cold War that it really came to the fore.24 An important document to this effect was a 2001 report by then Secretary-General Kofi Annan on ‘The Prevention of Armed conflict’. In this report, Kofi Annan made his famous pledge to move the UN ‘from a culture of reaction to a culture of prevention’.25 The report specifically recalls the two main categories of conflict prevention as established by the Carnegie Commission on Preventing Deadly Conflict: operational prevention and structural prevention. Operational prevention, it is recalled, refers to ‘strategies and tactics undertaken when violence appears imminent’.26 Four measures can be used to avoid imminent violence: early warning and response, preventive diplomacy, economic measures (such as sanctions and incentives) and the use of force.27 Structural prevention, on the other hand, refers to ‘strategies to address the root causes of deadly conflict, so as to ensure that crises do not arise in the first place, or that, if they do, they do not recur’.28 These strategies encompass a wide range of instruments, such as dispute resolution mechanisms; development; the promotion of human rights, democracy and the rule of law; and so forth. The distinction between operational prevention and structural prevention is based on the distinction between short-term measures and long-term measures. Both types of measures are important in the context of conflict prevention. A progress report on armed conflict issued in 2006 then added a third category of prevention known as ‘systemic prevention’, which refers to measures to address the risk of global conflict that transcends particular states.29 The evolution of the concept of conflict prevention in the framework of the UN, as outlined above, indicates that conflict prevention has not only progressively evolved into one of the UN’s main objectives, but that it has also become very wide in scope.30 The notion encompasses a range of very diverse measures, addressing different kinds of causes of conflict and relating to different phases in the conflict cycle.31 The UN’s comprehensive approach to conflict prevention has been echoed in the policy documents of other international and regional actors, among which the EU

T h e R es p on s i b i li t y to Preven t / 117

stands out.32 The European Security Strategy (ESS) demonstrates the EU’s determination to become a strong actor in the international arena, ‘ready to share in the responsibility for global security and in building a better world’.33 The ESS also shows the EU’s strong predilection for prevention, as ‘preventative engagement can avoid more serious problems in the future’34 and ‘conflict prevention cannot start too early’.35 Prior to the entry into force of the Lisbon Treaty, there was no formal legal basis for the EU’s engagement in conflict prevention, as the Petersberg tasks inserted into the Treaty of the European Union (TEU) by the Treaty of Maastricht only referred to ‘humanitarian and rescue tasks, peace-keeping tasks and tasks of combat forces in crisis management, including peacemaking’.36 However, Article 43 of TEU now explicitly mentions conflict prevention amongst these tasks. Importantly, the EU already has at its disposal a broad range of conflict prevention instruments, both short-term and long-term. Amongst the long-term prevention instruments, we find development cooperation; trade; arms control; human rights; social and environmental policy and political dialogue.37 The short-term prevention instruments encompass a wide range of diplomatic and humanitarian instruments.38 In other words, the EU thus has at its disposal a multitude of measures for crisis management at various stages of the conflict cycle. The ESS specifically refers to the importance of this great ‘mixture of instruments’,39 thus emphasising the EU’s broad approach to conflict prevention. The concept of conflict prevention is thus interpreted very widely by both the UN and the EU, encompassing a wide range of instruments that address the diverse roots of conflict in all its stages. While such a broad take is to be encouraged in theory, in practice, swift and effective operationalisation is threatened by the blurring of the responses to the different phases of conflict. The conflict prevention moniker is not only employed to describe measures taken before a dispute turns into a full-blown conflict, but also for identifying measures adopted after a conflict has ended, as post-conflict reconstruction is also deemed to be a form of conflict prevention. Related terms are used interchangeably: ‘conflict prevention’ has been used to describe actions undertaken in almost every one of the different phases of the conflict cycle (before, during, after), and as such has become conflated with crisis management.40 It is doubtful whether such an expansion of the scope of conflict prevention benefits the concept’s operability.41 Rather, the practical implementation of conflict prevention would most likely benefit from the concept being limited to the pre-conflict phase. The conflict prevention discussion is thus permeated by a wide variety of terms lacking clear delineation, which arguably threatens their consistent implementation by a large spectrum of actors and partners. The following section will show that the current interpretation of the notion of RtoP is likely to add yet another ill-defined concept to the prevention discourse.

H a n n e C u y c k en s and P h ili p De Ma n / 118

3.2 The framework for prevention as envisaged by the concept of RtoP and its juxtaposition with conflict prevention

It follows from various official documents on RtoP that the concept can be divided into three types of responsibilities: the responsibility to prevent, the responsibility to react and the responsibility to rebuild. Far from being equal, however, the ICISS Report clearly states that ‘[p]revention is the single most important dimension of the responsibility to protect’.42 Indeed, effective prevention will by definition obviate any need to resort to the two other components of RtoP. The crucial importance of the preventative aspect of RtoP is echoed in other policy documents and official statements from both the UN and the EU. As such, the EU Presidency, in its statement of priorities for the 65th UN General Assembly, noted that ‘[t]he EU will apply a “narrow but deep approach” to RtoP-related policies and will particularly focus on its preventive pillar’.43 The EU also noted in its contribution to the RtoP debate at the UNGA in July 2009 that ‘[t]he responsibility to protect necessarily encompasses a responsibility to prevent’.44 Finally, UN Secretary-General Ban Ki-moon stresses the importance of the preventive pillar of RtoP a number of times in his recent comprehensive report on the implementation of RtoP, and in the entire 2010 report on early warning, assessment and RtoP.45 This primary focus on prevention, paired with the observation that the innovative legal aspects of RtoP were abandoned in favour of a broad compromise at the 2005 World Summit, puts into question the relevance of adding the notion of RtoP to the conflict prevention vocabulary. The ICISS Report notes that ‘prevention options should always be exhausted before intervention is contemplated’.46 The same rule applies to both the responsibility to prevent and the responsibility to protect: the primary responsibility for preventing conflict lies with the state itself. However, as ‘failure of prevention can have wide international consequences’,47 the broader international community has an important role to play should states fail to shoulder their responsibilities. This supporting role can take many different forms, ranging from development cooperation and other efforts to help address the root causes of conflict; the support of local initiatives to advance good governance, human rights or the rule of law; or even good offices, mediation and other means of promoting dialogue or reconciliation.48 It is obvious that this range of instruments envisaged for the operationalisation of the responsibility to prevent is very similar to those foreseen by the UN and the EU under the heading of conflict prevention. The ICISS Report specifically mentions three categories under the responsibility to prevent: early warning and analysis, root causes prevention efforts and direct prevention efforts. The similarity between the latter two types of prevention and the distinction between structural and operational conflict prevention is striking. The prevention of root causes clearly refers to more long-term measures, whereas direct prevention, in the words of the ICISS, ‘has essentially the same compartments – political/diplomatic, economic, legal and military – as the one for root causes prevention, but different instruments, reflecting the shorter time available in which to make a difference’.49 Not only does the responsibility to prevent refer to

T h e R es p on s i b i li t y to Preven t / 119

the same division between operational/short-term prevention and structural/longterm prevention, the specific instruments envisaged in practice are the same. This need not surprise us, of course, as the fact that both the UN and the EU have already developed broad capacities for conflict prevention has always been seen as a major asset to operationalising the preventive aspect of RtoP. The striking similarities between the instruments for implementing RtoP do, however, raise the question whether there is a need to add a new notion to the conflict prevention discourse if the new concept cannot distinguish itself by any other means. The prevention aspect of RtoP is also overly present in the 2005 WSO Document as endorsed by the UNGA. Unlike the other two responsibilities (to react and rebuild), the responsibility to prevent is emphatically singled out in both RtoP paragraphs of the 2005 document. Paragraph 138 starts by reaffirming the individual responsibility of states to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. It then specifically adds that ‘[t]his responsibility entails the prevention of such crimes’.50 The role laid down for the international community in all of this is to encourage and assist states in exercising this responsibility. The states furthermore affirm that they shall support the establishment of an early warning capability in the framework of the UN. Paragraph 139 mentions that the international community shall commit itself to helping states build capacities to protect their populations from mass atrocities and ‘to assisting those which are under stress before crises and conflict break out’.51 Moreover, a final paragraph on RtoP in the WSO Document stresses that the undersigning states ‘fully support the mission of the Special Advisor of the Secretary-General on the prevention of Genocide’.52 RtoP could thus easily be dismissed as a mere rhetorical ploy to re-focus the attention of the international community on conflict prevention, given its prevailing focus on the prevention of mass atrocities and the absence of some of the more salient legal features that were initially proposed by the ICISS. Nevertheless, there appears to be one important aspect in which the concept’s specific approach to prevention might be able to improve upon the existing conflict prevention framework. It has been noted that the scope of RtoP was gradually narrowed down in the course of the four constituent documents from an overarching notion designed to combat any situation involving large-scale loss of life to a closely circumscribed notion applicable only to four predefined types of international crimes. Consequently, the ‘narrow but deep’ approach to prevention under the concept of RtoP should be able to tackle one of the main problems associated with operationalising conflict prevention, the implementation of which, as a sweeping doctrine that is applicable to such a broad range of situations and conflict phases, is effectively hampered. It is difficult to see, however, how preventive efforts can be so accurately delineated as to be limited to the prevention of four particular categories of international crime, especially if one is to deploy the same tools used for the broad approach to conflict prevention in general.

H a n n e C u y c k en s and P h ili p De Ma n / 120

The case in point is clear if we take a look at the instruments at the disposal of the international community to prevent genocide. Indeed, broadly the same instruments are used in the framework of the prevention of genocide as in the framework of both the general conflict prevention doctrine and RtoP. The specific measures to be adopted in the framework of the prevention of genocide have been laid down by the UN Secretary-General in his Action Plan to Prevent Genocide.53 The plan states that ‘one of the best ways to reduce the chances of genocide is to address the causes of conflict’.54 As such, it is crucial to help countries strengthen their capacity to prevent conflict. The instruments needed at an early prevention stage are the same as those for addressing the root causes of conflict in general: that is, development aid; promotion of the rule of law, democracy and human rights; disarmament; diplomatic pressure and trade and financial sanctions, and so forth. Peacekeeping and peace enforcement operations can also be important tools for genocide prevention.55 It is thus impossible to separate measures to prevent genocide (and most likely these are the same for the prevention of the two other crimes) from more generic conflict prevention measures. By definition, preventive tools are deployed before the mass atrocities from which they are intended to protect populations are committed. Moreover, the qualification of any situation as one of the four specifically defined categories of international crimes singled out by the notion of RtoP is a highly delicate and complex process, even after such atrocities have been committed. The absence of a specific preventive approach to RtoP, as opposed to conflict prevention in general, unavoidably results in a significant overlap between both doctrines. This undercuts the potential of the ‘narrow but deep approach’ to RtoP in the WSO Document to improve on the currently overly-broad notion of conflict prevention. RtoP has in this respect thus not only failed to establish a strong new legal obligation for the international community with respect to mass atrocities, but the conceptual confusion surrounding the notion also threatens to further compromise the practical operationalisation of the general doctrine of conflict prevention.

4 Conclusion The present contribution has aimed to critically assess the legal value of the notion of RtoP as endorsed by the international community at the 2005 World Summit, and as clarified in subsequent policy documents at both the international and regional levels. The analysis has shown that RtoP has gradually evolved from being a potentially valuable legal alternative to humanitarian intervention to a largely political notion with a dominant preventative component. While the broad endorsement by consensus of the notion of RtoP at the World Summit is in and of itself a significant development that underscores the value the international community attaches to protecting populations from mass atrocities, conceptual innovations are of limited use if they are not followed by effective operationalisation. Adding yet

T h e R es p on s i b i li t y to Preven t / 121

another ill-defined concept to the existing conflict prevention vocabulary is unlikely to further the actual implementation of the related policies. On the contrary, if RtoP is to remain a soft notion without a corresponding legal component, the entanglement between conflict prevention and RtoP can only further compound the present problems surrounding the practical implementation of conflict management. To be sure, the more focused approach of RtoP as the collection of a set of measures aimed at preventing the four most heinous crimes known to man should in theory be able to remedy some of the main deficiencies of a broad take on conflict prevention. However, the lack of any clear conceptualisation of either RtoP or conflict prevention and the practical impossibility of tailoring a preventative approach to the prevention of four types of international crimes completely negate the potential benefits of the ‘narrow but deep approach’ that has permeated the discourse on RtoP.

Notes 1 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) accessed 27 April 2011 (ICISS Report). 2 Report of the High-Level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’ (2004) UN Doc A /59/565 (High-Level Panel Report). 3 Report of the Secretary-General, ‘In Larger Freedom: Towards Development, Security and Human Rights for All’ (2005) UN Doc. A/59/2005 (In Larger Freedom Report). 4 UNGA, ‘2005 World Summit Outcome’ (2005) UN Doc A/60/L.1 (WSO Document). 5 See Kleffner’s contribution in the present volume, at 87. 6 E Strauss, ‘A Bird in the Hand is Worth Two in the Bush – On the Assumed Legal Nature of the Responsibility to Protect’, (2009) 1 GR2P 291, 317. 7 Report of the Secretary-General, ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677, 3 (emphasis added). 8 Art. 1 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention) (emphasis added). 9 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ 15. 10 Ibid (emphasis added). 11 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 2 (Genocide case) 427. 12 The Court notes that, ‘[e]ven if and when [the competent UN organs] have been called upon, this does not mean that the States parties to the Convention are relieved of the obligation to take such action as they can to prevent genocide from occurring, while respecting the United Nations Charter and any decisions that may have been taken by its competent organs’. Ibid 427. 13 Ibid 430. 14 Ibid. 15 See Brollowski’s contribution in the present volume at 93-110.

H a n n e C u y c k en s and P h ili p De Ma n / 122

16 UN Secretary-General Ban Ki-moon (n 7). 17 E Mclean, ‘The responsibility to protect: the role of international human rights law’ (2008) 13 JC&SL 13, 139. 18 N Swanstrom and M Weissmann, ‘Conflict, Conflict Prevention, Conflict Management and Beyond: A Conceptual Exploration’ (2005) Concept Paper Central Asia-Caucasus Institute & Silk Road Studies Programme, accessed 3 June 2010, 5. 19 Ibid 11. 20 Ibid. 21 A Ackermann, ‘The Idea and Practice of Conflict Prevention’, (2003) 40 J PR 3, 339. 22 Article 24 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN Charter). 23 Art 1.1 UN Charter (n 22) 24 J Wouters and P De Man, ‘Legal Instruments for the Prevention of Armed Conflicts’ in J Wouters, S Verhoeven and P De Man (eds), Armed Conflicts and the Law forthcoming. 25 Report of the Secretary-General, ‘Report on the Prevention of Armed Conflict’ (2001) UN Doc. A/55/985, accessed 3 June 2010, 1. 26 Report of the Carnegie Commission on Preventing Deadly Conflict, ‘Preventing Dead­ ly Conflict’ (1997) accessed 3 June 2010, 39. 27 Ibid 40. 28 Ibid 69. 29 Report of the Secretary-General, ‘Progress Report on the Prevention of Armed Conflict’ (2006) UN Doc. A/60/891 accessed 3 June 2010, 8. 30 J Wouters and P De Man (n 25). 31 Ibid. 32 Ibid. 33 Council of the European Union, ‘A Secure Europe in a Better World’ (2003) accessed 3 June 2010, 1. 34 Ibid 11. 35 Ibid 6. 36 Treaty on European Union, former Art 17 (now Art 42). 37 M Vincent and J Wouters, ‘The Responsibility to Protect: Where does the EU Stand?’ Policy Brief 10, Leuven Centre for Global Governance Studies (2008), 9. 38 Ibid. 39 Council of the European Union (n 34) 7. 40 J Wouters and P De Man (n 25). 41 Ibid. 42 ICISS Report (n 1) XI. 43 EU Presidency Statement of 16 September 2010 accessed 16 February 2011. 44 EU Presidency Statement of 23 July 2009 accessed 16 February 2011. 45 UNSG Report on Implementing RtoP (n 7); Report of the Secretary-General, ‘Early Warning, Assessment, and the Responsibility to Protect’ (2010) UN Doc A/64/864. 46 ICISS Report (n 1) XI. 47 Ibid 3.3.

T h e R es p on s i b i li t y to Preven t / 123

48 Ibid. 49 ICISS Report (n 1) 3.25. 50 WSO Document (n 4), 138 (emphasis added). 51 Ibid. 52 Ibid 140. 53 Speech of the UN Secretary-General Kofi Annan at the 10th Anniversary of the 1994 Genocide in Rwanda, 7 April 2004. accessed 7 August 2010. 54 Ibid (emphasis added). 55 L Woocher, ‘Peace Operations and the Prevention of Genocide’ (2007) Human Rts Rev 314.

9

The Responsibility to Protect and the Obligations of States and Organisations under the Law of International Responsibility Nina H.B. Jørgensen

1 Introduction The Responsibility to Protect (RtoP) is a twenty-first century idea, first described in the December 2001 Report of the International Commission on Intervention and State Sovereignty.1 The new century began with a re-conceptualisation of the notions of ‘responsibility’ and ‘sovereignty’; notions that required revitalisation to ensure that citizens within states would be protected from avoidable harm. Reflecting this goal, the 2001 Report shifted the focus from rights (the right to intervene) to duties (the responsibility to react to mass atrocities). The 2004 Report of the High Level Panel on Threats, Challenges and Change gave further definition to the scope of the so-called emerging norm,2 referring to the ‘collective international responsibility to protect’, through Security Council-authorised intervention as a last resort, populations falling victim to genocide and other large-scale killing, ethnic cleansing or other serious violations of international humanitarian law.3 In the 2005 World Summit Outcome Document, which further emphasised the preventive aspect of RtoP, the categories of crime were simplified to include genocide, war crimes, ethnic cleansing and crimes against humanity.4 In his 2009 Report on ‘Implementing the Responsibility to Protect’, the Secretary-General of the United Nations (UN) stressed that: ‘The responsibility to protect, first and foremost, is a matter of State responsibility, because prevention begins at home and the protection of populations is a defining attribute of sovereignty and statehood in the twenty-first century.’5

Nina H . B. J ør gens en / 126

RtoP may be viewed as a matter of State responsibility in a different sense from that employed by the Secretary-General. The codification of the rules governing the responsibility of States for internationally wrongful acts was one of the first topics on the agenda of the International Law Commission (ILC) when it commenced its work in 1948. Coincidentally, it was in 2001 that the ILC’s codification effort culminated in the adoption of the Articles on State Responsibility.6 The formulation of the rules concerning the regime applicable to wrongful acts of particular seriousness, such as genocide, proved especially complex.7 In view of the ILC’s travails in this respect, the notion of a ‘serious breach of an obligation arising under a peremptory norm of general international law’ entailing special consequences in the form of obligations on third States, may ultimately be said to reflect a twentyfirst century idea as well, even if rooted in established principles. The ILC is in the process of developing Draft Articles on the Responsibility of International Organisations,8 inspired to a significant degree by the Articles on State Responsibility. The Draft Articles on the Responsibility of International Organisations recognise the importance of international organisations as subjects of international law and as possible perpetrators of particularly serious wrongful acts.9 The consequent obligations for international organisations in the face of such wrongful acts, whether committed by states or by international organisations themselves, are therefore also in a process of evolution. In view of these developments, it is pertinent to examine whether RtoP might be strengthened if it were to develop in tandem with the emergent legal obligations incumbent on states and international organisations in situations involving genocide, crimes against humanity, war crimes or ethnic cleansing. It is possible that the potential scope of these obligations has been underestimated or even overlooked in the context of the RtoP debate. The aim is therefore to expose this potential scope by considering the nature of any such obligations and their relevance to RtoP. After all, the International Commission on Intervention and State Sovereignty did not intend to reformulate substantive issues but rather to refocus the debate, particularly as it concerns collective action to protect those in peril. Similarly, the Secretary-General, by positioning RtoP within the UN security system, affirmed that this ‘responsibility’ should function within existing legal frameworks.

2

The Notion of Responsibility for ‘Serious Breaches’

A hierarchical system of legal obligation has been introduced into international law under the cover of jus cogens (fundamental rules of customary international law that cannot be set aside by treaty) and obligations erga omnes (which are owed to all States and all States have a legal interest in their protection). This is reflected in the rules on State responsibility and the rules being drafted on the responsibility of international organisations. Responsibility in this context is a mechanism by which

Rt o P an d th e Ob li gatio ns of States a nd Orga nisat io ns / 127

States and international organisations may be called to account for breaches of the substantive rules of international law. The goal is to provide a ‘reparative response’ so that the international legal order which has been upset by the breach can be restored. The ILC’s Articles on State Responsibility and Draft Articles on the Responsibility of International Organisations set out particular consequences applicable to what is termed a ‘serious breach of an obligation arising under a peremptory norm of general international law’ (jus cogens). Such obligations are owed to the international community as a whole. The notion of serious breaches of peremptory norms (which replaced the divisive concept of international crimes) reflects the idea that the international community has fundamental interests that must be safeguarded. All States and international organisations are under an obligation to uphold fundamental community interests. A serious assault on such an interest requires a response from all States. This is evident in the wording of the relevant provisions of the Articles on State Responsibility and Draft Articles on the Responsibility of International Organisations.

3

Serious Breaches of Peremptory Norms in the Articles on State Responsibility

Articles 40 and 41 of the Articles on State Responsibility read as follows: Chapter III: Serious Breaches of Obligations under Peremptory Norms of General International Law Article 40 Application of this chapter 1. This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law. 2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation. Article 41 Particular consequences of a serious breach of an obligation under this chapter 1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40. 2. No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.

Nina H . B. J ør gens en / 128

3. This article is without prejudice to the other consequences referred to in this part and to such further consequences that a breach to which this chapter applies may entail under international law.

3.1 The Nature of the Primary Obligation

The scope of Article 40 is defined first by the peremptory nature of the norm. The ILC was reluctant to give examples of peremptory norms, preferring to allow evolving State practice and the decisions of judicial bodies to determine which obligations fell into this category. Notably, the Articles on State Responsibility concern only secondary rules, which indicate when an obligation has been breached and the legal consequences. However, the ILC indicated that the list of peremptory norms includes at least the prohibition of aggression, slavery and the slave trade, genocide, racial discrimination, apartheid and torture, as well as the basic rules of international humanitarian law and the principle of self-determination.10 It has also been suggested in the literature that the prohibition of cruel, inhuman or degrading treatment, crimes against humanity, the prohibition of piracy, and the principle of permanent sovereignty over natural resources would qualify for inclusion in this category. For the purposes of the Articles on State Responsibility, it is not sufficient for a norm to be peremptory; the breach must also be serious. The term ‘seriousness’ in this context refers to the systematic nature and intensity of the violation or its effects. The ILC’s Commentary points to the prohibitions of aggression and genocide as requiring by their very nature an intentional violation on a large scale.

3.2 Obligation of Cooperation

The idea behind the ‘obligation of cooperation’ is that in order to ensure solidarity in the face of a gross and systematic failure by a State to observe an obligation arising under a peremptory norm of international law, there needs to be a positive obligation for all States to take part in public action on behalf of the international community to protect common interests. Arguably, the obligation of cooperation is the most important of the obligations set out in Article 41, especially in the context of RtoP. In view of its importance it is worthwhile summarising its evolution in the drafting process of the Articles on State Responsibility. In 1982, the obligation was framed (in relation to ‘international crimes’) as an obligation to join other states in affording mutual assistance in carrying out the obligations of non-recognition and non-assistance. This meant that its scope was quite limited, given that the last two obligations are obligations not to act (but to be distinguished from any right of third States to act). In 1996, the obligation of cooperation was expanded so that there was not only an obligation to cooperate in terms of non-recognition and non-assistance, but also an obligation to cooperate ‘in the application of measures designed to eliminate the consequences of the crime’. In 2000, the provision that is now Article 41 was separated into three distinct obligations, with an obligation ‘to cooperate as

Rt o P an d th e Ob li gatio ns of States a nd Orga nisat io ns / 129

far as possible to bring the breach to an end’. In the final draft of 2001, the words ‘as far as possible’ were deleted and the obligation to cooperate was moved to the top of the list of obligations, hinting at its relative importance. The shift in emphasis is significant because there is now a clearly expressed duty on the part of States to cooperate in bringing an end to a serious breach of a peremptory norm. The obligation of cooperation appears to envisage a form of collective response through the organised international community, that is, the UN. UN action would constitute ‘lawful means’ as required under Article 41. Furthermore, Article 41 suggests that all States are obliged to cooperate with individual States or regional groups employing ‘lawful means’ as defined elsewhere in the Articles. This raises potential difficulties where there is no directly injured State to take the lead. For example, if massive human rights violations are committed within a State, which is most often the type of situation covered by RtoP, it may be that no positive action to invoke responsibility is taken by any State. However, the obligation to cooperate must be viewed in the context of the Articles read as a whole, because it operates in conjunction with the rights and powers of the directly and indirectly injured States. Article 42 defines an ‘injured State’, while Article 48 describes other affected States acting in the collective interest. The rights of States under Article 48 are limited to claiming cessation of the wrongful act, assurances and guarantees of non-repetition, and ‘performance of the obligation of reparation … in the interest of the injured State or of the beneficiaries of the obligation breached’. Therefore, where an affected State claims cessation and performance of the obligation of reparation following a serious breach of an obligation arising under a peremptory norm, all other States have a duty to cooperate. An injured State is entitled to take limited non-forcible countermeasures against the responsible State in order to induce that State to comply with its obligations of cessation and reparation. Where countermeasures are resorted to in the context of a breach under Article 40, all other States are obliged to cooperate. Article 54 states that the provisions on countermeasures do not prejudice the right of any affected State under Article 48 to take lawful measures against the responsible State to ensure cessation of the breach and reparation in the interest of the injured State or the beneficiaries of the obligation breached. It would therefore seem that affected States may also resort to countermeasures for limited purposes, and again, the duty to cooperate would arise if the breach were of sufficient seriousness.

3.3 Obligation of Non-Recognition

The obligation of non-recognition is a duty of abstention. It is most obviously applicable where the serious breach takes the form of a legal claim, for example Iraq’s attempted annexation of Kuwait in 1990, or an asserted legal status, such as statehood. In certain circumstances, the non-recognition of the outcome of elections could fall within the scope of the obligation. For example, Security Council Resolution 554 (1984) relating to South Africa:

Nina H . B. J ør gens en / 130

Urge[d] all governments and organisations not to accord recognition to the results of the so-called ‘elections’ and to take appropriate action, in cooperation with the UN and the OAU and in accordance with the present resolution, to assist the oppressed people of South Africa in their legitimate struggle for a non-racial, democratic society.

The obligation could also extend to the non-recognition of a government that has come to power in an unconstitutional manner, such as by a coup d’état, and which lacks the support of the people. The obligation of non-recognition and its content are not dependent on any action by the UN, although a UN resolution could help to establish certainty about the nature of the breach and help to ensure universality in terms of the response.11

3.4 Obligation of Non-Assistance

The obligation of non-assistance is similarly a duty of abstention. It should be read together with Article 16 of the Articles on State Responsibility which concerns the positive act of aiding or assisting another State in the commission of an internationally wrongful act. Article 41(2) takes Article 16 further, in the sense that it addresses subsequent conduct which assists the responsible State in maintaining the situation brought about by the breach. It is important to note that the obligation to refrain from assisting the responsible State is limited to acts that would contribute towards preserving the situation created by the breach. It does not cover international cooperation with the responsible State in areas unrelated to the breach. In other words, it does not require the complete isolation of the responsible State or prohibit humanitarian assistance. This principle was recognised by the International Court of Justice (ICJ) in its Advisory Opinion in the case concerning Legal Consequences for States of the Continued Presence of South Africa in Namibia.12

4

Serious Breaches of Peremptory Norms in the Draft Articles on the Responsibility of International Organisations

The Draft Articles on the Responsibility of International Organisations contain equivalent provisions to the Articles on State Responsibility: Chapter III: Serious Breaches of Obligations under Peremptory Norms of General International Law Article 40 Application of this chapter

Rt o P an d th e Ob li gatio ns of States a nd Orga nisat io ns / 131

1. This chapter applies to the international responsibility which is entailed by a serious breach by an international organisation of an obligation arising under a peremptory norm of general international law. 2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible international organisation to fulfil the obligation. Article 41 Particular consequences of a serious breach of an obligation under this chapter 1. States and international organisations shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40. 2. No State or international organisation shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation. 3. This article is without prejudice to the other consequences referred to in this Part and to such further consequences that a breach to which this chapter applies may entail under international law.

As the Commentary notes, serious breaches may be less likely on the part of international organisations than on the part of States. In fact, the ILC could not point to specific examples of practice, relying instead on examples pointing to duties incumbent on international organisations when serious breaches were committed by States.

5

Status of the Obligations in International Law

5.1 The Specific Obligations

The obligations outlined above derive their strength from being grounded in customary international law, and it is therefore necessary to consider the extent to which they represent a codification of existing law or a progressive development of the law. 5.1.1 Obligation of Cooperation in the Articles on State Responsibility

The original draft of the obligation of cooperation in the Articles on State Responsibility was inspired by Article 49 of the UN Charter, which provides that ‘The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council’. Further support for the obligation is found in ‘The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States’, which includes the duty of States to cooperate with one another in the maintenance of peace and security and in respect for human rights. In its judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua, the ICJ held that the

Nina H . B. J ør gens en / 132

unanimous consent of States to this Declaration may be understood as an acceptance of the validity of the rules declared therein. 13 This suggests that the ILC codified an accepted obligation, although interestingly, the ILC itself was not certain whether general international law prescribes a positive duty of cooperation. There may be several reasons for this caution. First, the relevant examples of State practice involved UN action, and it may not necessarily be assumed that the duties that have arisen in the context of the UN system extend beyond that system. Secondly, the precise scope of the duty, especially in the absence of UN action, remains unclear. It is possible that the obligation will develop with respect to specific crimes in the first instance. The ICJ has recognised that Article 1 of the Fourth Geneva Convention imposes a positive duty on all State parties to respect and ensure compliance with the humanitarian principles embodied in the Convention. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ held that all State parties were under an obligation to ensure compliance by Israel with the relevant rules of international humanitarian law.14 The ICJ developed the law relating to States’ obligations to prevent genocide in its judgment on the merits in the case concerning the Application of the Genocide Convention.15 In order to be held responsible for failing to prevent genocide, it must be demonstrated that a State with the capacity to influence the actions of persons likely to commit genocide manifestly failed to take all measures to prevent genocide which were within its power. The duty to act arises as soon as a State learns of or should have learned of a serious risk of genocide. However, Article VIII of the Genocide Convention requires State parties to ‘call upon the competent organs of the United Nations to take such action under the Charter as they consider appropriate for the prevention and suppression of acts of genocide’. 5.1.2 Obligation of Non-Recognition in the Articles on State Responsibility

The duty of non-recognition seems to be well-established in customary international law. It appeared in the form of the ‘Stimson doctrine’, which called for nonrecognition of territorial acquisitions resulting from aggression during the Manchurian crisis in 1931-2, and has been supported in the jurisprudence of the ICJ.16 The ICJ reinforced the obligation of non-recognition both in 1971, in relation to South Africa’s illegal presence in Namibia,17 and more recently in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In the latter case, the ICJ held that in view of ‘the character and the importance of the rights and obligations involved … all States are under an obligation not to recognise the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem’.18 The English House of Lords made reference both to the ICJ’s Opinion and Article 41 of the Articles on State Responsibility in upholding the duty to ‘reject the fruits of torture inflicted in breach of international law’.19

Rt o P an d th e Ob li gatio ns of States a nd Orga nisat io ns / 133

The difficulty is to work out what the duty really means in cases that do not involve a claim to territory, but rather an illegal fact such as genocide. In particular, do third States have to take some positive step in terms of non-recognition to avoid implied recognition of the legality of the act or its consequences? In many cases, condemnation of the act as illegal will mean that non-recognition serves no additional purpose. Furthermore, if States take action to alleviate the suffering of people affected by the serious breach of a peremptory norm, this should not be seen as recognising the illegal situation resulting from the breach. 5.1.3 Obligation of Non-Assistance in the Articles on State Responsibility

State practice, mainly as revealed through Security Council resolutions, provides support for the obligation of non-assistance. This was the foundation of many of the Security Council resolutions condemning apartheid in South Africa. Resolution 418 (1977), for example, applied a mandatory arms embargo against South Africa and called upon all States, including non-members of the UN, to comply with the resolution and ‘refrain from any co-operation with South Africa in the manufacture and development of nuclear weapons’. In Resolution 218 (1965) dealing with the situation in the Territories under Portuguese administration, the Security Council requested all States to refrain from ‘offering the Portuguese Government any assistance which would enable it to continue its repression of the people of the Territories under its administration; and to take all the necessary measures to prevent the sale and supply of arms and military equipment to the Portuguese Government for this purpose’. The resolutions adopted by the Security Council during the conflict between Iraq and Kuwait in 1990-1 went well beyond any obligation not to assist Iraq. The obligation of non-assistance was also reinforced by the ICJ in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, where the Court required all States to refrain from rendering aid or assistance in maintaining the situation created by the construction of the wall .20 5.1.4 The Obligations in the Draft Articles on the Responsibility of International Organisations

The work on the Draft Articles on the Responsibility of International Organisations tends to assume that the obligations incumbent on international organisations also arise where the serious breach is committed by a State, rather than an international organisation. The Commentary to Article 41 of the Draft Articles states: While practice does not offer examples of cases in which the obligations stated in the present article were asserted in respect of a serious breach committed by an international organisation, it is not insignificant that these obligations were considered to apply to international organisations when a breach was allegedly committed by a State.

Nina H . B. J ør gens en / 134

This assumption is supported by the ICJ in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: the United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated regime, taking due account of the present Advisory Opinion.21

Examples of non-recognition on the part of international organisations of illegal acts by States include the following. First, with regard to the attempted annexation of Kuwait by Iraq, Security Council Resolution 662 (1990) called upon ‘all States, international organisations and specialized agencies not to recognize that annexation, and to refrain from any action or dealing that might be interpreted as an indirect recognition of the annexation’. Second, the European Community’s 1991 ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’ stated: ‘The Community and its member States will not recognize entities which are the result of aggression’.22

5.2 The Saving Clause

The ILC has made it clear that the legal regime of serious breaches is in a stage of development. One of the purposes of the saving clause in Article 41(3) is to allow for such further consequences as may be provided by international law, whether through a primary rule or otherwise.

6

RtoP and the Responsibility Regime

Rather than setting up divisions between the different frameworks addressing the type of conduct covered by the notion of serious breaches of peremptory norms, it is important to discover how they can interrelate. The following points suggest ways in which the relationship between RtoP and the responsibility regime for serious breaches is evident and ripe for further exploration. RtoP is primarily concerned with prevention, while international responsibility is concerned with the consequences flowing from the actual commission of wrongful acts. The distinction was made clear by the ICJ, which found that State responsibility for the failure to prevent genocide only arises once genocide has actually been committed.23 However, many serious breaches have a continuing character, so in this sense, stopping the wrongful act is the main goal of both RtoP and the responsibility regime. Cessation is required as one of the general consequences of the commission of an internationally wrongful act, together with reparation. In the words of the ILC, ‘the function of cessation is to put an end to a violation of international law and to safeguard the continuing validity and effectiveness of the underlying primary rule’.24 The ILC also notes that cessation ‘is frequently demanded not

Rt o P an d th e Ob li gatio ns of States a nd Orga nisat io ns / 135

only by States but also by the organs of international organisations such as the General Assembly and Security Council in the face of serious breaches of international law’.25 In this respect, RtoP goes further than the responsibility regime, as it addresses conduct that is required to prevent a breach in the first place. The Articles on State Responsibility and Draft Articles on the Responsibility of International Organisations are not concerned with the substantive rules of international law (‘primary’ rules), but rather with the mechanism for indicating the consequences of a breach. Nonetheless, the examples of peremptory norms commonly put forward suggest that the responsibility regime in Articles 40 and 41 of the Articles on State Responsibility and Draft Articles on the Responsibility of International Organisations is of a broader scope than RtoP, albeit applicable only to serious breaches of peremptory norms. Moreover, any proposed list of peremptory norms is non-exhaustive, while RtoP has been specifically limited to four categories of international crime. This raises the question of whether it is logical to maintain a distinction between the two concepts in terms of the relevant ‘primary’ rules. The examples of serious breaches given by the ILC and evolving in practice are obligations relating to ‘what has come to be seen as intolerable because of the threat it presents to the survival of States and their peoples and the most basic human values’.26 There is a danger that any tendency to reign in the concept of RtoP in terms of its scope of application could have a negative impact on the development of responsibility for serious breaches. RtoP is more limited than the responsibility regime in terms of essentially requiring an institutional response through the UN. In practice, the effective implementation of Articles 40 and 41 of the Articles on State Responsibility and Draft Articles on the Responsibility of International Organisations may also depend on an institutional, coordinated response through the UN, but the obligations under those provisions arise independently. The obligations may not seem very demanding at first sight, but the fact that they arise independently represents a significant strength. Furthermore, the duty to cooperate is a specific consequence of serious breaches, as there is no such obligation with respect to wrongful acts that do not fall within this category. While a collective response through the UN could have the effect of making the obligation under the Articles residual, the existence of an independent duty to cooperate could nevertheless ensure that States support measures that fall short of being obligatory by a decision of the Security Council (as long as they are still lawful). At the same time, RtoP could give further impetus to effective cooperation in cases where massive human rights violations are committed within a State, where the application of the State responsibility regime is less clear. The concept of RtoP may already be said to have caused the Security Council to acknowledge that its role extends to the cessation of the four categories of crime occurring within a State’s territory.27 The case of Libya in 2011 provides an example of the simultaneous invocation of RtoP and the responsibility regime. In its initial press statement, the Security Council called for an immediate end to the violence (cessation), while

Nina H . B. J ør gens en / 136

at the same time calling for the Government of Libya to ‘meet its responsibility to protect its population’.28 The independent duties of states and international organisations not to recognise the Libyan Government’s actions as lawful, not to provide it with any aid or assistance and to cooperate with calls for cessation and any lawful measures taken, such as a commission of inquiry,29 may be considered to have come into play in these circumstances, pending further action by the Security Council. The Security Council in fact acted swiftly and, recalling the Libyan authorities’ responsibility to protect their population and considering that crimes against humanity may have been committed, adopted a resolution imposing an arms embargo as well as a travel ban and asset freeze in relation to certain individuals.30 In addition, the Security Council referred the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the International Criminal Court (ICC), urging even non-State parties to the ICC to cooperate fully with the Court. Arguably, in these circumstances, all States would be under an obligation to cooperate with the ICC under Article 41 of the Articles on State Responsibility. It has been observed that ‘what is truly novel about [RtoP]’ is ‘generating and exercising the international responsibility to respond to mass atrocities when state authorities fail to protect their populations’.31 Precisely how to generate and exercise the responsibility to respond, particularly in the absence of Security Council action, is also what is most difficult about RtoP. RtoP at least asserts moral pressure on States, all of whom are affected by a serious breach of a peremptory norm in view of its erga omnes character, to take any necessary lawful measures to induce a State to comply with its obligation of cessation. The concept may indeed contribute towards the development of what constitutes ‘lawful means’ in terms of triggering the obligation to cooperate. While practice in relation to Article 54 of the Articles on State Responsibility is described by the ILC as ‘embryonic’, measures have included economic sanctions and the suspension of treaties (for example, landing rights in civil aviation) and have been taken in the context of atrocities committed by a government against its own citizens (for example, the US in relation to Uganda in 1978), as well as in the interests of an injured State.32 Article 54 is designed to reserve the position on countermeasures taken in the general or collective interest without prejudice to the further development of international law. RtoP would appear to have an important role to play in this further development.

7 Conclusion RtoP and the responsibility regime under the Articles on State Responsibility and Draft Articles on the Responsibility of International Organisations are potentially mutually reinforcing, because RtoP gives greater moral and political force to State obligations, and the mandatory legal nature of those obligations in turn gives greater force and legitimacy to the reaction under RtoP. It is an open question whether the prospect of incurring responsibility under the aggravated responsibility regime

Rt o P an d th e Ob li gatio ns of States a nd Orga nisat io ns / 137

improves the observance of international law, because States and international organisations fear that all other States and/or international organisations will be obliged to take legal steps against them. Any deterrent effect combined with the success of the RtoP concept in achieving its preventive aims may ultimately result in the fulfilment of the promise of RtoP, described by Bellamy as reducing ‘the frequency with which governments are forced to choose between standing aside and going to war for humanitarian purposes’.33 Responsibility is essentially about promises, as the roots of the word mean to ‘promise something back’. This meaning underlies the notions of responsibility to protect, State responsibility, responsibility of international organisations and responsibility of the territorial State. The responsibility regime in respect of serious breaches offers some legal tools based on States promising something back as members of the international community, which could in turn help to ensure the fulfilment of the promise embodied in RtoP.

Notes 1 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) accessed 19 April 2011 (ICISS Report). 2 The RtoP doctrine has been described as ‘but a fledgling rule of international customary law’, S Zifcak, ‘The Responsibility to Protect’ in M D Evans (ed), International Law (3rd ed Oxford UP, Oxford 2010) 524. 3 Report of the High-Level Panel on Threats, Challenges and Change ‘A More Secure World: Our Shared Responsibility’ (2004) UN Doc A /59/565 (High-Level Panel Report). 4 UNGA, ‘2005 World Summit Outcome’ (2005) UN Doc A/60/L1 (WSO Document). 5 Report of the Secretary-General, ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677, para 14. 6 ILC, Articles on Responsibility of States for Internationally Wrongful Acts (2001) UN Doc A/56/10 chp IV-E1 (Articles on State Responsibility). 7 This chapter draws on the author’s chapters on ‘The Obligation of Non-Assistance of the Responsible State’ and ‘The Obligation of Cooperation’ in J Crawford, A Pellet and S Olleson (eds), The Law of International Responsibility (Oxford UP, Oxford 2010). 8 ILC, Draft Articles on the Responsibility of International Organisations, Report on the Work of its 61st Session (2009) UN Doc A/64/10 chp IV-C (Articles on the Responsibility of International Organisations). 9 Ibid Commentary to Arts 2 and 40. 10 ILC, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ in: Yearbook of the ILC, 2001, Vol II, UN GAOR (A/CN4/SERA/2001/Add1) (Pt 2) (Commentaries to the Articles on State Responsibility) Commentary to Art 40, para 4-5. 11 S Talmon, ‘The Duty Not to “Recognize as Lawful” a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation Without Real Substance?’ in C Tomuschat and J M Thouvenin (eds), The Fundamental Rules of the

Nina H . B. J ør gens en / 138

International Legal Order – Jus Cogens and Obligations Erga Omnes (Martinus Nijhoff, Den Haag 2005) 113. 12 Legal Consequences for States of the Continued Presence of South Africa in Namibia (SouthWest Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1970] ICJ Rep 1971, 16 (Legal Consequences for States case) para 125. 13 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, para 188. 14 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 (Palestinian Wall opinion) para 159. 15 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 2 (Genocide case) para 428-32. 16 ILC, ‘Report on the Work of its Fifty-Third Session’ (2001) UN doc A/56/10, 114-115, paras 6-10. 17 Legal Consequences for States case (n 12) para 126. 18 Palestinian Wall opinion (n 14) para 159. 19 A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, para 34. 20 Palestinian Wall opinion (n 14) para 159. 21 Ibid para 160. 22 ‘Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’ (16 December 1991) annexed to D Turk, ‘Recognition of States: A Comment’ (1993) 4 EJIL 72 (Annex 1). 23 Genocide case (n 15) para 431. 24 Commentaries to the Articles on State Responsibility (n 10) Commentary to Art 30 para 5. 25 Ibid Commentary to Art 30, para 4 (emphasis added). 26 Ibid para 3. 27 UNSC Res 1674 (28 April 2006) UN Doc S/Res/1674, on the protection of civilians in armed conflict ‘Reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’. The Security Council furthermore emphasised ‘the importance of preventing armed conflict and its recurrence’, and stressed the need for a comprehensive approach while urging the cooperation of Member States. The Security Council invoked RtoP in relation to Sudan in UNSC Res 1706 (31 August 2006) UN Doc S/Res/1706. See also Zifcak (n 2) 516. 28 Security Council Press Statement on Libya, 22 February 2011, accessed 19 April 2011. 29 On 25 February 2011 the Human Rights Council, referring to RtoP, decided to dispatch an independent commission of inquiry to investigate alleged violations of international human rights law in Libya. See HRC, ‘Situation of Human Rights in the Libyan Arab Jamahiriya’ (25 February 2011) UN Doc. A/HRC/S-15/2. 30 UNSC Res 1970 (26 February 2011) UN Doc S/Res/1970: The resolution also required States to cooperate in the seizure and disposal of arms destined for Libya. 31 J Welsh, ‘Implementing the “Responsibility to Protect”‘, Policy Brief No 1/2009, Oxford Institute for Ethics, Law and Armed Conflict accessed 19 April 2011, 6. 32 Articles on State Responsibility (n 10) Commentary to Chapter II, paras 3 and 8. 33 A J Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities (Polity Press, Cambridge 2009) 4.

10

Consensual Intervention and the Responsibility to Protect Responsibility to Protect’s Place within the Legal Framework of Consensual Intervention in Internal Armed Conflict Eliav Lieblich

1 Introduction The somewhat diminishing potential for legal novelty embodied in the Responsibility to Protect (RtoP) doctrine – through its long journey from the International Commission on Intervention and State Sovereignty (ICISS) Report’s implied challenge to the Security Council’s monopoly over the use of force,1 to the rather narrow endorsement of the doctrine in the 2005 World Outcome Document (WSO Document)2 – has understandingly given rise to scepticism regarding the doctrine’s legal significance. However, the underlying notion guiding RtoP, even in its narrow interpretation, according to which sovereignty entails responsibility rather than merely the power to control territory, can contribute to a better understanding of contemporary international law. Indeed, the concept of sovereignty as responsibility is not entirely new, and can be deduced from various well-established instruments of international law. However, the RtoP doctrine can serve to consolidate and aggregate these instruments under a common theoretical wing, where the concept of sovereignty as responsibility can be looked upon as a basic principle to which major interpretational value should be attributed. As such, the perception of sovereignty as responsibility has possible legal implications in areas of international law that, traditionally, assessed the rights and powers of actors on counts of their effective control over territory (territorial effectiveness). One of these fields of traditional law is the law of internal armed conflict, in

El i av L i eb li ch / 140

which the status of parties to an internal armed conflict was determined through the largely value-neutral prism of territorial effective control. This approach conformed to the predominant theories of recognition of states and governments of the nineteenth and early twentieth centuries, in which recognition was granted upon the fulfilment of certain conditions of effectiveness. However, over the decades, territorial effectiveness lost its status as the sole factor in recognition. The RtoP doctrine, which stresses that one of the basic characteristics of ‘sovereignty’ is the responsibility to protect populations, can be viewed as yet another development in international law where the principle of territorial effectiveness is losing ground. It is reasonable to argue, in this context, that the maxim according to which sovereignty is a source of responsibility is also valid inversely – and accordingly, responsibility is also a source of sovereignty. Thus, there are possible relations between the RtoP doctrine and international law of internal armed conflict. This brief work concerns one aspect of this law: the ‘chaotic’ law of intervention upon invitation or consent of a party to such a conflict.3 Indeed, since most putative and ongoing RtoP situations have occurred in the context of internal armed conflicts,4 and many of these conflicts feature some elements of consensual intervention, there is significance in exploring the interaction between the RtoP doctrine and the law of consensual intervention. The possibilities outlined in this work are by no means exhaustive. The role of RtoP in the international system is yet to be fully determined, and hence each one of the aspects explored here merits further research, which is well beyond the scope of this work. It is, therefore, merely an attempt to exemplify RtoP’s potential role in the development of existing bodies of law, and to identify possible directions for the adaptation of law according to the basic principles set forth in the RtoP doctrine. Bearing in mind the modest objectives of this work, Part I will briefly survey the law regarding consensual intervention from the multi-polar era of the nineteenth century until the post-United Nations (UN) Charter era. Part II will address the possible interaction between the RtoP doctrine and the law of consensual intervention. This second part is divided into three sections. Section A will suggest the concept of effective protection as a criterion for the assessment of parties’ capacity to express consent; Section B discusses the role of RtoP regarding the question of withdrawal of consent, and specifically in the context of forward-looking intervention treaties; and Section C explores the interaction between consent and the RtoP doctrine in instances when the UN Security Council acts and – conversely – when it fails to do so, focusing inter alia on the recent events in Libya.

2

Pre-Charter Law, Consensual Intervention and Post-Charter Ambiguities

Ever since the prohibition on the use of force, as enshrined in Article 2(4) of the UN Charter, international law has struggled with the question of intervention by an

C on s en s u al In ter ve n tio n a nd Rt o P / 141

external party in an internal armed conflict upon the invitation or consent of a party to the conflict – be it a government or an opposition group. The basic quandary has always revolved around the attempt to delineate the circumstances in which a party to an internal conflict (government or opposition) possesses the legal capacity to invite (or consent to) external intervention on its behalf, and, conversely, those circumstances in which such a party does not possess these powers. In the traditional international law of the pre-Charter era – at least since the decline of ‘just war’ theory5 and the downfall of the dynastic legitimism doctrine espoused by the Holy Alliance6 – the rights and obligations of parties to an internal armed conflict were predominantly, if not strictly, determined by territorial effective control tests. It was territorial effectiveness, primarily, that determined whether insurgents would be granted a ‘recognition of belligerency’ – an intermediary status in which they would gain the power to exercise all the wartime rights of a belligerent government – without being recognised as such.7 The recognition of such status, in the pre-Charter era, resulted mainly in the triggering of neutrality law in the relations between the belligerents and third parties; and in the opposition’s capacity to exercise war-time powers in maritime law vis-à-vis neutral vessels, such as imposing binding blockades, searching and visiting neutral vessels on the high seas for contraband, and condemning vessels as prize if caught carrying contraband.8 While some scholars have identified a certain connection between the recognition of belligerency and the legality of consensual intervention,9 it seems that this was not entirely the case. Due the fact that in the pre-Charter era10 there was no prohibition on the use of force to begin with – and states ‘could resort to war for a good reason, a bad reason, or no reason at all’,11 risking only the loss of neutral status12 – conditioning the legality of intervention on any prior recognition made little sense. Therefore, consensual intervention in the pre-Charter era was no different than any other use of force at the time; it was, in effect, the sovereign prerogative of the intervening state. Nevertheless, it was the largely value-neutral test of effective control over territory that determined whether opposition groups would be recognised as belligerents, a status that – as aforementioned – entailed some rights, mainly in maritime and neutrality law. Over the years, the belligerency doctrine was abandoned, and the last clear-cut case of belligerency recognition took place during the American Civil War.13 A more flexible theory of recognition of insurgency surfaced at the end of the nineteenth century, the attributions of which will not be discussed here; suffice it to say that it, too, like the belligerency doctrine, was based on the assessment of the effective control of opposition groups, and, likewise, its effects over the question of consensual intervention were doubtful, in the absence of a prohibition on the use of force.14 The UN Charter’s Article 2(4), prohibiting the use of force, supposedly quashed the theoretical question – as, in general, it does not allow any intervention in favour

El i av L i eb li ch / 142

of opposition groups (assuming they are not recognised, themselves, as states or governments). Conversely, intervention upon the consent of the government is generally not viewed as contrary to the prohibition. The exclusion of intervention on behalf of governments from the prohibition on the use of force can nowadays be reasonably deduced from Article 20 of the Articles on State Responsibility, providing that ‘[v]alid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act’.15 Regarding opposition groups, the ICJ held in the Nicaragua case, without further elaboration, that [i]t is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition.16

However, other international legal documents, such as the controversial 1974 Definition of Aggression17 and Additional Protocol I to the Geneva Conventions,18 complicate the picture, as they recognise, to some extent, the capability of opposition groups to gain legal status (and thus, perhaps, some type of support) when participating in internal armed conflicts. The Definition of Aggression, on the one hand, conforms to the usual perception reserving the right to request forcible support only to governments, by declaring that the term ‘aggression’ includes ‘[t]he use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided’ in the agreement between the parties.19 However, Article 7 of the Definition qualifies that [n]othing in this Definition … could in any way prejudice the right to self-determination, freedom and independence … particularly peoples under colonial and racist regimes or other forms of alien domination; nor the right of these people to struggle to that end and to seek and receive support, in accordance with the principles of the Charter.20

It is debatable whether Article 7 can be interpreted to exclude from the definition of the term ‘aggression’ armed support granted to opposition groups, considering the aforementioned ruling in Nicaragua, and as the article conditions such support on its being ‘in accordance with the principles of the Charter’. However, Article 7 is significant in its statement that the status of entities recognised as possessing the right to seek and receive support in the course of their struggles, is neither determined merely through territorial effective control standards nor on counts of their lack of recognition as governments. The substantive assessment of opposition groups is evident – although in the realm of jus in bello – also in Article 1(4) of Additional Protocol I. There, it is stipulated that ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right

C on s en s u al In ter ve n tio n a nd Rt o P / 143

of self-determination’ amount to international armed conflicts for the purpose of the application of the protocol. Here, again, the factor that serves to determine the status of the opposition groups is based on substantive analysis of the parties to the conflict, rather than on effectiveness, or governmental recognition. Therefore, while the UN Charter is usually understood as prohibiting intervention in favour of opposition groups, the substantive analysis of such groups – for the purpose of determining their status in different contexts – is not entirely absent from the international legal discourse. RtoP, perhaps, can serve a clarifying role regarding such analysis.

3

RtoP and Consensual Intervention

Having in mind the aforementioned ambiguities, we will now turn to briefly survey three aspects where RtoP has the potential to interact substantially with the law of consensual intervention.

3.1 RtoP and the Expression of Consent: From Effective Control to Effective Protection?

The RtoP doctrine can be regarded as another step in the continuous process since World War II, in which the meaning of sovereignty has been transformed from the traditional Westphalian concept of power – one that spawns the principle of non-intervention – to a term that connotes responsibility. Until the end of the eighteenth century, the dominant perception viewed sovereignty as a corollary of the divine or historic right of the ruling monarch.21 In parallel, however, the pioneers of international law set forth a rival concept – effectiveness – as the dominant source of sovereign power. Binding sovereignty with effectiveness was viewed as a practical necessity to maintain international stability and protect the principle of non-intervention.22 This concept, generally devoid of value considerations,23 endured well into the twentieth century, and was reflected in the dominant theories of recognition of international entities.24 However, over the decades, a complex system of (sometimes conflicting) principles emerged, challenging the predominance of the effectiveness doctrine as the ultimate source of sovereignty.25 Thus, the recognition of states, governments and their respective powers came to be no longer dominated entirely by territorial effective control tests.26 This notion can be clearly demonstrated in the practice of the international community since the end of World War II. For instance, the exercise of territorial effective control did not suffice to bring recognition to the Smith regime in Southern Rhodesia, as it violated established norms of jus cogens;27 nor did the lack of territorial effectiveness more recently play a part in the international’s community competing positions regarding the independence of Kosovo.28 Another oft-mentioned example of the decline of effectiveness can be found in the 1994 Haiti crisis, in

El i av L i eb li ch / 144

which the Security Council authorised a forcible intervention in Haiti, in favour of an ousted (and democratically elected) government that had absolutely no control over territory in the state at the time.29 Still more, the decline of the effectiveness principle is demonstrated by the fact that transitional or interim governments that barely control any territory beyond their respective states’ capitals have become a common feature of international attempts to rectify contemporary internal armed conflicts. For instance, in the recent internal conflicts in Iraq and Somalia, the international community saw no special difficulty in recognising, or acquiescing to, the ability of ineffective transitional governments to consent to external forcible interventions,30 assuming, of course, that the consent expressed by these entities was genuine and not coerced.31 It is in this context – where territorial effectiveness is no longer the sole precondition of sovereignty – in which one should read the ICISS report, and in particular its call for the ‘re-characterisation’ of the perception of sovereignty, from ‘sovereignty as control to sovereignty as responsibility, in both internal and external duties’.32 The ‘responsibility’ envisioned in the ICISS report implies, inter alia, ‘that the state authorities are responsible [internally and internationally] for the functions of protecting the safety and lives of citizens’.33 This approach seems to have been endorsed, in essence, in the WSO Document, where the protection of populations from the four enumerated crimes has been recognised as the responsibility of states, the failure in which might result in forcible intervention authorised by the Security Council.34 Once our perception of sovereignty changes – from a corollary of physical ‘control’ that in turn spawns a right to exercise further control, to a source of a responsibility to protect safety and lives – change must also follow in our view towards what constitutes normative effectiveness: meaning, control of the type that the exercise thereof could merit the recognition of rights and powers of the relevant entities. This change will apply also to the rights and powers of parties engaged in internal armed conflicts. Since, indubitably, effectiveness of some sort is a necessary precondition for any entity’s mere physical ability to protect civilians, the concept of sovereignty as responsibility compels us to reformulate the doctrine of effectiveness rather than to abandon it completely. Thus, the doctrine can be shifted from the traditional perception of effectiveness as control over territory to one which is closer to effective protection of civilians. The exercise of effective protection can then be viewed as one important factor to be considered in the process of establishing the rights and powers of states, governments and – perhaps – opposition groups; among these powers, to be made contingent on effective protection, could be the legal capacity to express consent to external intervention. In sum, a modern adaptation of the effective control tests, enhanced by the logic of RtoP, could assess parties to internal armed conflicts, for the purpose of recognition of their rights and powers – and in addition to other valid principles – according to their exercise of effective protection of civilians, rather than strictly on counts of their effective control over territory.

C on s en s u al In ter ve n tio n a nd Rt o P / 145

3.2 RtoP and the Withdrawal of Consent: The Case of Forward-Looking Intervention Treaties

If we suggest that the RtoP doctrine can affect the capacity to express consent to a forcible intervention, it seems reasonable that the doctrine also has implications on the ability to withdraw such consent. In particular, this question is of special importance in the context of forward-looking intervention treaties. Such agreements are of the kind in which states, acting bilaterally or within the framework of a regional organisation, grant other states a general forward-looking permission to conduct a forcible intervention in their territories, in the event that certain internal circumstances occur – even in the absence of real-time consent by the current government, and without Security Council authorisation.35 These agreements can be, for instance, anti-coup d’état mechanisms designed to protect a certain regime; or guarantees against threats to a state’s constitutional or democratic structure.36 Forward-looking intervention treaties have gained some prominence in Africa in the last two decades. Since Africa is nowadays the most volatile region with regard to RtoP situations, Africa’s approach should be given special attention in our analysis. African forward-looking intervention treaties have been concluded at the bilateral37 as well as regional levels. On the regional level, of key importance are the African Union’s and ECOWAS’ Peace-Keeping and Security Protocols (AU and ECOWAS Protocols, respectively). In the AU Protocol, the AU is given the power to intervene, through the ‘African Standby Force’, in ‘grave circumstances’ such as war crimes, genocide and crimes against humanity.38 The ECOWAS Protocol authorises forcible intervention by the ECOWAS intervention force, ECOMOG, in instances where internal conflicts threaten to cause humanitarian disasters; pose a serious threat to the region; or when an overthrow or an attempted overthrow of a democratically elected government occurs.39 Both protocols do not condition intervention on real-time consent by the target state; moreover – and controversially – both are at least ambiguous regarding situations in which Security Council authorisation is not present, if not directly challenging the Security Council’s monopoly on the authorisation of forcible intervention.40 The most difficult questions regarding forward-looking intervention treaties surface in instances where a government decides to withdraw its previous consent in real time, when facing an impending intervention. Ordinarily, a government has all but absolute power to withdraw, in real time, the consent a past government (or, for that matter, the same government) has given to a future forcible intervention. Following such withdrawal, if the intervener fails to comply, it is deemed an aggressor.41 However, some make the right of withdrawal contingent upon the existence of a clearly established government, either by exercising territorial effectiveness, or legitimised through a free democratic process.42 In this context, it is worthwhile to consider whether RtoP can serve to clarify the limits of the right of withdrawal from such forward-looking arrangements. If we accept that RtoP changes the perception of sovereignty from territorial effectiveness to one of effective protection, then it could follow that a government

El i av L i eb li ch / 146

that fails to exercise its responsibility to effectively protect civilians loses some of its sovereign power. Indeed, where a government withdraws its consent in order to enable it to undertake actions that violate the jus cogens norms that the RtoP doctrine sets out to protect, it is reasonable that third parties would be obliged not to recognise the withdrawal.43 In such cases, a perpetrating government will not possess the sovereign power to withdraw from a forward-looking intervention treaty – since its act of withdrawal will be invalidated. Conversely, the right of withdrawal would only exist in those cases in which a government exercises effective protection: meaning, where it fulfils its responsibility to protect.

3.3 Consent and RtoP Interventions

As we saw, the RtoP doctrine can potentially affect our understanding of the law of consensual intervention. However, the influence can be mutual: at the same time that RtoP can influence the validity of consent, the latter, too, can perhaps affect the application of the RtoP doctrine. We shall now turn to explore this possible interaction in two instances: the first occurs when an RtoP situation presumably calls for a forcible intervention, and such is authorised through a Security Council Chapter VII resolution; the second takes place when the Security Council fails to take any action to halt the atrocities. 3.3.1 When the Security Council Authorises an RtoP Intervention

When the Security Council authorises an RtoP intervention, previous consent by the perpetrating government cannot be a legal requirement, since it is unreasonable to require the Security Council to seek the consent of a government regarding an intervention aimed against its own actions. Accordingly, Chapter VII of the UN Charter does not require government consent as a legal precondition for a forcible RtoP intervention to be undertaken, when the situation amounts to a threat to peace or a breach of it.44 One exception to this rule can be found in the case of ‘pure’ peacekeeping operations, where the authorised force is only mandated to engage in monitoring, and forcible action can be undertaken only in self-defence. Regarding operations such as these, whether they are mandated by Chapter VI or Chapter VII of the UN Charter, consent of all involved parties is required – since it is impossible for such operations to fulfil their pacific mandates when one party actively resists, and therefore must be forcibly subdued. Furthermore, peacekeeping forces, by their very nature, cannot forcibly enter a state’s territory.45 When forcible RtoP interventions take place, and notwithstanding the fact that party consent would not be required for forcible Chapter VII actions, it can be reasonable – as we shall see – for the Security Council (or its members) to seek the consent, in some form, of the forces opposing the atrocities, assuming they are likely to exercise effective protection of civilians themselves. Such consent, while not a legal necessity, can serve to raise the political legitimacy of the intervention by demonstrating that it is not a foreign-imposed action oblivious to the interests of the affected population;46 moreover, consent by the opposition can have a second-

C on s en s u al In ter ve n tio n a nd Rt o P / 147

ary legal implication, by mitigating claims that the UN action is in violation of the non-intervention principle – in its substantive sense – enshrined in Article 2(7) of the Charter.47 At the same time, if the perpetrating government in an RtoP situation attempts itself to seek external support, its consent can be pre-empted directly through the resolution’s text, by prohibiting third parties to provide the government with assistance of any kind. The possible effects of opposition consent in the face of RtoP situations can be demonstrated in the primary stages of the crisis in Libya, taking place in February and March 2011, prior to the subsequent RtoP forcible intervention authorized by the Security Council.48 In mid-February 2011, following the relatively peaceful deposition of Egyptian president Hosni Mubarak, protests erupted in Libya, demanding the end of the long-standing Gaddafi regime, and spreading westward towards Tripoli from the eastern city of Benghazi. Soon enough, the situation became violent as pro-government elements and Libyan security forces attacked demonstrators.49 As Gaddafi’s forces started to disintegrate due to desertions and resignations of key government members, regime loyalists reacted increasingly brutally, while the protest movement gradually became supplemented by a well-armed rebel force.50 In light of the atrocities committed in Libya, key elements of the regime’s diplomatic apparatus resigned or sided with the opposition. On 21 February, Libya’s deputy ambassador to the UN called for Gaddafi’s resignation, proclaiming that the delegation serves the Libyan people and not the regime.51 On 25 February, Libya’s delegation to the UN Human Rights Council resigned, claiming to represent, from then on, ‘only the Libyan people’. The delegation to the Arab League did the same.52 On the same day, the representative of Libya, appearing in front of the Security Council, dramatically appealed for help, urging the adoption of a ‘swift, decisive and courageous resolution’.53 On 26 February 2011, the Security Council, acting under Chapter VII, adopted Resolution 1970. The resolution imposed sanctions on Libya and, notably, referred the situation to the Prosecutor of the International Criminal Court.54 As the resolution imposed an arms embargo, it also a fortiori prohibited forcible support rendered to the Libyan government. Several aspects of this resolution are of special interest to us, as they demonstrate the dynamics of consent in the context of an RtoP situation. First, the resolution’s preamble implied that the situation in Libya in fact amounted to an internal armed conflict, by mentioning the ‘serious violations of human rights and international humanitarian law’ taking place [emphasis added]; second, it recognised that an RtoP situation was occurring in Libya, by recalling ‘the Libyan authorities’ responsibility to protect its population’;55 third, and significantly, the resolution noted the letter of the Permanent Representative of Libya, in which he expressed support for a Security Council resolution. Moreover, in his statements in front of the Council, the representative of Libya thanked the Council for adopting the resolution, hailing it as a ‘sincere attempt to protect civilians’. He expressed confidence that the resolution

El i av L i eb li ch / 148

will bring ‘a definite end to the fascist regime that is still in place in Tripoli’; he also called on the Libyan armed forces to abandon Gaddafi, and expressed support for the decision to refer the issue to the ICC.56 Thus, the Libyan delegation represented, de facto, the opposition. Accordingly, it was heard in the discussion regarding the resolution, even though the Gaddafi regime was still considered by the Council as the ‘authority’ in Libya. Although resolution 1970 did not yet authorise a forcible intervention, it is of interest to us since it represents a case in which in an RtoP situation, consent and support by the opposition played a part in the decision-making process in the Council. The de facto opposition’s view was taken into account, perhaps prompting traditionally sanction-averse states to vote in favour. Indeed, it seems that the support of the opposition had an effect on the votes of several Council members. India stated that the position of the Libyan delegation ‘strengthened’ its support for the ICC referral.57 China, laconically, referred to the ‘special situation in Libya’ as a consideration for its support.58 Nigeria declared that the position of the Libyan delegation and the ‘cries of help of the Libyan people’ persuaded it to vote for the resolutions.59 Brazil noted that it gave ‘due regard’ to the requests by the Libyan delegation.60 South Africa and France went further. South Africa declared that the Council ‘responded swiftly and resolutely’ to the call of the Libyan delegation.61 France welcomed the fact that ‘the Council has today unanimously and forcefully responded’ to the appeal by the representative of Libya, and reiterated the rationale of the RtoP doctrine.62 There can be little doubt, therefore, that the failure of Libya to effectively protect its civilians resulted in the granting of some de facto status to the opposition in front of the Council. 3.3.2 When the Security Council Fails to Authorise an RtoP Intervention

When the Security Council fails to act in response to an RtoP situation, the issue of consent gains much importance. When such failure occurs, the conflict is excluded at large from the UN’s multilateral collective security system and reverted to the bilateral or regional systems. In the usual case, as aforementioned, a generally recognised exception to the prohibition on the use of force is intervention upon consent of the government.63 Therefore, in the absence of Security Council action, a perpetrating government could ostensibly rely on its right to invite foreign support. However, RtoP can serve to further augment the notion that state consent will not always suffice. The RtoP doctrine, as it was formulated in the WSO Document, is concerned with the protection of populations from four types of atrocities: genocide, war crimes, ethnic cleansing and crimes against humanity.64 Unsurprisingly, the prohibitions on such acts are entrenched as peremptory norms of international law, or jus cogens.65 It is a well-established principle that acts contrary to jus cogens are invalid: thus, Article 53 of the Vienna Convention66 invalidates treaties conflicting with jus cogens; complementing this provision is Article 41(2) of the Articles on State Responsibility, providing that no state shall recognise situations created by seri-

C on s en s u al In ter ve n tio n a nd Rt o P / 149

ous breaches of peremptory norms. Therefore, when a government that perpetrates an RtoP situation invites a state to intervene on its behalf, whether through an intervention treaty sensu stricto or otherwise,67 the invitation can be seen as invalid, irrespective of the fact that the Security Council did not act. A state that acts upon such consent, notwithstanding its invalidity, and chooses to intervene in favour of the perpetrating government, can be subjected to various sanctions imposed unilaterally or by regional organisations. Such actions would be indeed called for, as Article 41(1) of the Articles on State Responsibility imposes an obligation on states to cooperate, through lawful means, to bring an end to violations of peremptory norms of international law. Imposition of non-forcible sanctions does not require Security Council authorisation, and therefore they undoubtedly constitute lawful means to confront the violation.68 A controversial question is whether RtoP situations, besides negatively affecting a perpetrating government’s capacity to request and receive forcible support, can also have positive effects over the rights of opposition groups to receive such support. If sovereignty indeed means responsibility – manifested chiefly in the effective protection of civilians from atrocities – it is required to ask whether in an internal armed conflict, where a government perpetrates an RtoP situation, an appeal for support by an opposition group that itself exercises effective protection can legalise forcible intervention, in the absence of Security Council authorisation. While the instinctive answer would be a negative one, as such intervention would prima facie constitute an illegal extra-Charter use of force, it is worthwhile to explore other theoretical directions of thought, mindful that they are, quite possibly, de lege ferenda. The first direction is the adoption of a liberal interpretation of Article 7 of the Definition of Aggression as one that permits forcible intervention by request of opposition forces confronting an RtoP situation, provided that they, themselves, exercise effective protection. As aforementioned, this option seems unlikely.69 A second possible direction is granting governmental recognition to the opposition seeking support. As we pointed out, the theory of state and government recognition departed, in past decades, from a strict reliance on effective control as a standard for recognition.70 Therefore, it is not unreasonable that exercise of effective protection can perhaps serve as grounds – in addition to consideration of other relevant interests – for the recognition of an opposition group as a government.71 If this course is taken, and the newly recognised government requests forcible assistance, there is no theoretical difficulty with establishing the legality of the intervention, since a violation of the prohibition on the use of force does not occur. Third, in so far as one accepts the doctrine of necessity as precluding wrongfulness of state action in the context of the prohibition on the use of force – a question clearly beyond the scope of this work72 – genuine consent by an opposition group exercising effective protection can perhaps assist, ex post, in the intervening state’s quest to prove the existence of such necessity.

El i av L i eb li ch / 150

4 Conclusion RtoP can potentially have legal implications over a wide spectrum of legal norms that involve the assessment of effective control – among them, the norms governing consensual intervention. In this context, as we suggested, the perception of sovereignty as responsibility can alter the way we assess the capacity of entities to express valid consent, as well as to withdraw consent previously given. In general, this work set forth the concept of effective protection of civilians as a criterion capable of challenging the traditional view of territorial effectiveness as a main factor in the assessment of rights and powers of parties involved in internal armed conflicts. Moreover, the RtoP doctrine can also, possibly, interact with the question of consent when forcible RtoP interventions are considered, both when the Security Council acts and where it fails to do so. The theoretical possibilities outlined in this work – and perhaps as exemplified in the recent international response to the situation in Libya – demonstrate that RtoP can indeed expand the international legal discourse regarding international armed conflicts and consent. A traditionally problematic area of law can perhaps be clarified through RtoP’s simple yet compelling message: sovereignty is responsibility; and responsibility means effective protection of civilians.

Notes 1 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) accessed 4 May 2011 (ICISS Report) 53-55. 2 UNGA ‘2005 World Summit Outcome’ (2005) UN Doc A/60/L 1 (WSO Document) paras 138-39. The term ‘RtoP situation’ as used here refers to any of the situations circumscribed in para 138 of the WSO Document. 3 Independent International Fact-Finding Mission on the Conflict in Georgia, ‘Report of the Independent International Fact-Finding Mission on the Conflict in Georgia: Volume II’ (Report) (September 2009) accessed 4 May 2011 (IIFFMCG Report) 276. 4 For instance, the 1994 Rwanda crisis, the crisis in Sudan (Darfur), as well as the 2011 crises in Libya and Côte d’Ivoire have taken place within the context of an internal armed conflict. 5 On the ‘just war’ doctrine, see Y Dinstein, War, Aggression and Self Defence (Cambridge UP, Cambridge 2005) 63-70. 6 On legitimism, see B R Roth, Governmental Illegitimacy in International Law (Oxford UP, Oxford 1999) 142-44. 7 See L Oppenheim, International Law, A Treatise: Volume 1 Peace (2nd edn Longmans, Green and co., London 1912) para 74; for a comprehensive survey of the belligerency doctrine, see H Lauterpacht, Recognition in International Law (Cambridge UP, Cambridge 1947) 175-233. 8 For a succinct summary of the logic of traditional prize law and neutrality, see the opinion of the Lord Chancellor in Ex Parte Chavasse [1865] 46 ER 1072 (Ch); and the High Court

C on s en s u al In ter ve n tio n a nd Rt o P / 151

of Admiralty in The Helen [1865-67] LR 1A & E1 (HCA); on prize law in the context of belligerency recognition, see the US Supreme Court in The Santissima Trinidad 20 US 283 (1822); The Prize Cases 67 US 635 (1862). For more on the consequences of belligerency recognition in this context, see R H Dana (ed), Elements of International Law by Henry Wheaton (8th ed Little, Brown and Company, Boston 1866) para 23, fn 15. 9 L Doswald-Beck, ‘The Legal Validity of Military Intervention by Invitation of the Government’ (1985) 56 BYIL 189, 196; C J Le Mon, ‘Unilateral Intervention by Invitation in Civil Wars: The Effective Control Test Tested’ (2003) 35 NYU J Intl L & Pol 741, 746. The position that recognition of belligerency may affect the legality of forcible intervention is probably rooted in a reading of a passage by Oppenheim; see L Oppenheim, International Law, A Treatise: Volume 2 War and Neutrality (2nd ed Longmans, Green and co., London 1912) para 298. 10 Or at least until the 1928 Kellogg-Briand Pact, and to a lesser extent, the Covenant of the League of Nations. 11 H W Briggs, The Law of Nations (Crofts, New York 1952) 976 cited in Dinstein (n 5) 75. 12 Oppenheim (n 9) paras 312, 358-59. 13 R R Oglesby, Internal War and the Search for Normative Order (Martinus Nijhoff, The Hague 1971) 100-15; Doswald-Beck (n 9) 197. Nevertheless, the question of belligerency was not totally absent from the discourse, as it was debated widely in different contexts until the outbreak of World War I, for instance, in the context of the Cuban insurrections of the 1870s and 1890s. See, eg, J H Beale, Jr., ‘The Recognition of Cuban Belligerency’ (1896) 9 Harv L Rev 406. 14 On the implications of recognition of insurgency, see G G Wilson, ‘Insurgency and International Maritime Law’ (1907) 1 AJIL 46, 46, 59; E D Dickinson, ‘The Closure of Ports in Control of Insurgents’ (1930) 24 AJIL 71. 15 ILC, Articles on Responsibility of States for Internationally Wrongful Acts (2001) UN Doc A/56/10 chp IV-E1 (Articles on State Responsibility) Art 20. 16 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14 (Nicaragua case) para 246. 17 UNGA Res 3314 (XXIX) (14 December 1974) (Definition of Aggression) Art 7. 18 Protocol (I) Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (First Additional Protocol) Art 1(4). 19 Definition of Aggression (n 17) Art 3(e). 20 Ibid Art 7 (emphasis added). 21 T D Grant, The Recognition of States (Praeger, Westport 1999) 8. 22 Lauterpacht (n 7) 99-102 (providing a summary of the approaches of the mentioned pioneers of international law); Roth (n 6) 136-37. 23 Lauterpacht (n 7) 31. 24 See, eg, Convention on the Rights and Duties of States (adopted 26 December 1933, entered into force 26 December 1934) 165 LNTS 19 (Montevideo Convention) Art 1 (setting forth effectiveness-based conditions for state recognition). 25 See, eg, Grant (n 21) 30-31, 89-94; S D Murphy, ‘Democratic Legitimacy and Recognition’ in G H Fox and B R Roth (eds), Democratic Governance and International Law (Cambridge UP, Cambridge 2000) 123, 125-26. 26 See, eg, the 1992-added suspension clause in the Charter of the Organisation of American States (adopted 30 April 1948, entered into force 13 December 1951) 119 UNTS 48 (OAS Charter) Art 9, regarding states whose democratic governments have been overthrown; see also the Inter-American Democratic Charter, General Assembly Res AG/Res 1838

El i av L i eb li ch / 152

(XXXI-O/01) (San José 11 September 2001). The latter mechanism was applied recently as a reaction to the ousting of Honduran president Zelaya in late June 2009. See OAS, ‘Suspension of the Right of Honduras to Participate in the Organisation of American States’ General Assembly Res AG/Res 2 (XXXVII-E/09) (16 July 2009). 27 For an overview of UN deliberations considering the declaration of independence of Smith’s South Rhodesia, see UN, ‘The Question of Southern Rhodesia’ [1965] UN Ybk 117-34. 28 The question of effectiveness is notably missing from the international discourse regarding Kosovo, both in the positions of the proponents of its independence and in those of the opponents – including Serbia itself. See the opinions of the different states as expressed in the Security Council meeting following Kosovo’s declaration of independence, UNSC Verbatim Record (18 February 2008) UN Doc S/PV/5839. 29 UNSC Res 940 (31 July 1994) UN Doc S/RES/940. 30 In the Iraqi context see UNSC Res 1546 (5 June 2004) UN Doc S/RES/1546, Annex ‘Text of letters from the Prime Minister of the Interim Government of Iraq Dr. Ayad Allawi and United States Secretary of State Colin L. Powell to the President of the Council’; regarding Ethiopia’s intervention in Somalia in favor of the ineffective Transitional Federal Government, see UNSC Verbatim Record (26 December 2006) UN Doc S/PV/5614, 3. 31 On this issue, see E Lieblich, ‘Intervention and Consent: Consensual Forcible Interventions in Internal Armed Conflicts as International Agreements’ (2011) 29 Boston U Intl L J 337. 32 ICISS Report (n 1) para 2.14. 33 Ibid para 2.15. 34 WSO Document (n 2). 35 Another term to refer to such agreement is ‘Treaty-Based Intervention’; see, eg, D Wippman, ‘Treaty-Based Intervention: Who Can Say No’ (1995) 62 U Chi L R 607; I prefer the term ‘forward-looking intervention treaties’ since a treaty-based intervention can also refer to a real-time intervention treaty, while the problematic situation occurs, mainly, when such treaties are made in advance. See also on such treaties, P E Harrell, ‘Modern-Day Guarantee Clauses and the Legal Authority of Multinational Organisations to Authorize the Use of Military Force’ (2008) 33 Yale J Int’l L 417. 36 See B R Roth, ‘The Illegality of “Pro-Democratic” Invasion Pacts’ in Fox and Roth (n 25) 3310-34. 37 For examples of bilateral forward-looking intervention treaties in Africa see J Levitt, ‘African Interventionist States and International Law’ in O Furley and R May (eds), African Interventionist States (Ashgate, Aldershot 2002) 24, 28. 38 Protocol Relating to the Establishment of the Peace and Security Council of the African Union (adopted 9 July 2002, entered into force 26 December 2003) accessed 4 May 2011 (AU Protocol) Arts 4(j), 13(1), 9, 15. 39 Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-Keeping and Security (adopted 12 December 1999) accessed 4 May 2011 (ECOWAS Protocol) Arts 20, 25, 36. 40 For the ambiguous relations between these protocols and the Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN Charter), see ECOWAS Protocol (n 39) preamble, Arts 2, 27, 52; AU Protocol (n 38) Art 17(1). For a detailed analysis of these mechanisms, see Lieblich (n 31); A Abbas, Regional

C on s en s u al In ter ve n tio n a nd Rt o P / 153

Organisations and the Development of Collective Security: Beyond Chapter VIII of the UN Charter (Hart, Oxford 2004) 163. 41 Dinstein (n 5) 116; Definition of Aggression (n 17) Art 3(e); D Wippman, ‘Military Intervention, Regional Organisations and Host State Consent’ (1996) 7 Duke J Comp & Intl L 209, 234; Roth (n 36) 328. 42 Dinstein (n 5) 116. For an in-depth discussion of this issue, see Wippman (n 41) 235-38; see also D Wippman, ‘Pro-Democratic Intervention by Invitation’ in Fox and Roth (n 25) 293, 311-16. 43 ILC, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts with commentaries’ (2001) II Ybk ILC (Commentaries to the Articles on State Responsibility) Art 41(2). On jus cogens and invalidity, see text to nn 57-58. 44 See UN Charter (n 40) Art 39. ‘Aggression’ is irrelevant here because RtoP situations concern actions of states against populations, rather than against other states. 45 See D W Bowett and G P Barton, United Nations Forces: A Legal Study (Frederick A. Praeger Inc. Publishers, New York 1964) 412-413; Levitt (n 37) 21; see also IIFFMCG Report (n 3) 270 (arguing that peacekeeping forces, in general, have two ‘special attributes’: their operation requires consent, and they are not mandated to use force). On consent and intervention by UN forces, see Lieblich (n 31). 46 Bowett and Barton (n 45) 412. 47 Although it is provided in Article 2(7) of the UN Charter (n 40) that it ‘shall not prejudice’ enforcement measures, it does not seem that the principle of non-intervention ceases to apply altogether in the case of Chapter VII interventions. See D Ninčić, The Problem of Sovereignty in the Charter and in the Practice of the United Nations (Martinus Nijhoff, The Hague 1970) 175-76. 48 On March 17 2011,the Security Council authorized a forcible intervention in Libya referring explicitly, for the first time, to the concept of RtoP. UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973. 49 ‘Timeline: Six Remarkable Days in Libya’ CNN (20 February 2011) accessed 9 May 2011. 50 K Fahim and D K Kirkpatrick, ‘Lybian Rebels Repel Qaddafi’s Forces Near Tripoli’ NY Times (24 February 2011) < http://www.nytimes.com/2011/02/25/world/africa/25libya. html?_r=1> accessed 9 May 2011. 51 ‘Libyan UN Diplomats: Qaddafi Should Resign’ CBS News (21 February 2011) accessed 9 May 2011. 52 ‘Libyan Delegation to UN Rights Council Resigns’ Haaretz (25 February 2011) accessed 9 May 2011. 53 UNSC Verbatim Record (25 February 2011) UN Doc S/PV/6490, 5. 54 UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970. 55 Ibid 1. 56 UNSC Verbatim Record (26 February 2011) UN Doc S/PV/6491, 7. 57 Ibid 2. 58 Ibid 4. 59 Ibid 3. 60 Ibid 7. 61 Ibid 3. 62 Ibid 5. 63 Nicaragua case (n 16) para 246; Articles on State Responsibility (n 15) Art 20.

El i av L i eb li ch / 154

64 WSO Document (n 2) para 138. 65 On jus cogens norms, see A Cassese, International Law (Oxford UP, Oxford 2005) 202-03; see also Commentaries to the Articles on State Responsibility (n 43) Art 40, paras 3-4. 66 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT) Art 53. 67 On the classification of consensual interventions – whether based on treaties or otherwise, see Lieblich (n 31). 68 On the legality of unilateral non-forcible sanctions, see L F Damrosch, ‘Politics Across Borders: Nonintervention and Nonforcible Influence over Domestic Affairs’ (1989) 83 AJIL 1; S H Cleveland, ‘Norm Internalisation and U.S. Economic Sanctions’ (2001) 26 Yale J Int’l L 1. 69 Text to nn 17-20. 70 Text to n 24. 71 On the traditional law regarding recognition of insurgents as a new government, see Lauterpacht (n 7) 279–95. Recognition as the legitimate government, during an armed conflict involving an RtoP situation, was granted by over 30 states to the Libyan rebels. See S Arsu and S Erlanger, ‘Libya Rebels Get Formal Backing, and $30 Billion’ NY Times (15 July 2011) accessed 17 July 2011. 72 The principle of necessity is enshrined in Article 25 of the Articles on State Responsibility (n 15) and in customary international law; see also Commentaries to the Articles on State Responsibility (n 43) Art 25. However, the Commentaries stress that Article 25 does not apply to instances of use of force. Nevertheless, the Commentaries admit that ‘considerations akin’ may have a role also in that context; see ibid Art 25, para 21. For a discussion of the necessity exception in the context of forcible intervention, see A Buchanan, ‘Reforming the International Law of Humanitarian Intervention’ in J L Holzgrefe and R O Keohane (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge UP, Cambridge 2003) 130.

Part III Humanitarian Intervention and the Responsibility to Protect

11

Has Humanitarian Intervention Become Part of International Law under the Responsibility to Protect Doctrine? Diana Amnéus

1 Introduction This chapter will show that the discourse on RtoP has not managed to contribute to any modifications of the international legal rules applicable to the use of military force (jus ad bellum), and thus has not created a legal right to unauthorised humanitarian intervention. There is no ‘one’ authoritative definition of the concept of humanitarian intervention, but most formulations in the legal literature are similar.1 The definition employed in this context is narrow, and does not include so-called ‘in-and-out operations’ to rescue the intervening state(s)’ own nationals, nor pro-democratic interventions for the purpose of regime change of an illegitimate regime: Humanitarian intervention is the use of force across state borders by an international governmental organisation, a group of states or a single state aimed at preventing or ending gross violations of human rights and humanitarian law comitted against individuals other than its own citizens, without the full and valid consent of the state within whose territory force is applied.2

The main research question3 revolves around the important issue: ‘who’ has, or is, developing a legal right in international law to undertake humanitarian interventions under the RtoP principle? In the 2005 World Summit Outcome Document (WSO Document) on the UN reform agenda, endorsed by the world’s heads of state at the Summit in New York on 15 September 2005, member states only accredited the Security Council a right to decide on military measures in accordance with

Dian a A m n éu s / 158

Chapter VII of the UN Charter in order to protect against grave crimes in international law under the principle of RtoP.4 In the following legal analysis I have used the lex ferenda proposals of the International Commission on Intervention and State Sovereignty (ICISS) as a point of departure, sketching the idea that other actors may have a subsidiary Right Authority to decide on military measures when the Council is unable or unwilling to protect, in order to assess the research question.5 The ICISS acknowledged that the Security Council is the appropriate body to authorise military interventions, but if the Security Council rejects a proposal to protect or fails to deal with it within a reasonable time, the Commission proposed that the matter could be considered in the General Assembly under the ‘Uniting for Peace’ Procedure. If that fails, it suggested that a regional organisation could take action within its area of jurisdiction, subject to it seeking a Security Council authorisation. The Commission furthermore warned that if the Council fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, it should take into account that it is unrealistic to expect concerned states to rule out other means or forms of action to respond to a humanitarian emergency. In the following analysis, these ICISS proposals on a Right Authority for the General Assembly, regional organisations, and single states or a coalition of states are thus contrasted with existing international law proper and possible customary legal developments with regard to jus ad bellum. The post-Cold War purported state practice on humanitarian intervention by these different actors has been analysed through an RtoP lens, using specific RtoP criteria and its principles for military intervention.6 The RtoP criteria employed in the case studies are a combination of the criteria endorsed in the 2005 WSO Document and the precautionary principles for military intervention in the ICISS Report. In the cases of Security Council-authorised humanitarian interventions, I investigated: 1) the existence of any grave crimes in international law (genocide, war crimes or crimes against humanity); and 2) whether the state was manifestly failing to protect its population. In the cases of unauthorised humanitarian intervention, I also included: 3) whether the Security Council failed to protect the populations from such grave crimes, and 4) if the precautionary principles for military intervention had been complied with in those interventions; i) right intention, ii) last resort, iii) proportional means, and iv) reasonable prospects of success. In the assessment of any emerging customary norms on humanitarian interventions, the responses from other states and the extent to which these interventions have been met with support, protests or acquiescence by other states naturally play an important role in the formation of a customary rule. Before presenting the outcome of this analysis, I first comment briefly on the different versions and formulations of RtoP found in the ICISS Report, the WSO Document and in the Secretary-General’s report on the implementation of RtoP7 in relation to international law.

H a s H u m an i tar i an Interventio n Beco me Pa rt of I nternat i on al Law ? / 159

2

Responsibility to Protect, Humanitarian Intervention and International Law

Despite the critique raised with regard to the formulation of the principle of RtoP in paragraph 139 of the WSO Document, some legal scholars view the principle as a legally significant interpretation of the scope of Security Council authority in situations of mass violence within a single state.8 In my view, it confirms the legal right of the Council under Chapter VII of the UN Charter and international law to protect human security within a state against mass atrocity crimes, including by military enforcement measures. Parallel to the endorsed RtoP principle, we have witnessed several expansive and sometimes contradictory claims by states with regard to the application of RtoP, which contribute to the ongoing negotiation process among states about its definition, interpretation and application, adding to the current climate of confusion with respect to its contents. All of these co-existing bilateral and multilateral statements and claims do not necessarily reflect the emerging norm as accepted by the overwhelming majority of states. Despite the non-legal binding force of the WSO Document, its RtoP formulation must form the point of departure and guiding framework for RtoP analysis on purported valid state practice of the principle, reflecting a principle endorsed by UN member states.9 Such state practice must gather sufficient support by states to be counted and valued as a precedent contributing to a customary process developing emerging legal rights under the principle of RtoP. One misconception about RtoP appears to be that the principle of RtoP endorsed in 2005 covered a large part of the ICISS Report. However, only a principle of RtoP as such was accepted, and in a limited framework, restricted to legally defined crimes.10 The ICISS proposals are not legally authoritative and have no legal effect in themselves. The ICISS Report comprises bold and radical suggestions regarding how the international community could deal with the gap between the legality and the legitimacy of unauthorised humanitarian interventions, which emerged as a critical issue after the North Atlantic Treaty Organisation’s (NATO’s) intervention in the Kosovo Case in 1999.11 Although purporting to build on international law, many parts of the report do not reflect lex lata. In fact, its criteria and principles for military intervention, developed from the ‘just war’ doctrine, have not yet been accepted or endorsed as part of modern jus ad bellum, neither by the majority of states nor by the Security Council as guiding principles for its decision-making on military enforcement under Chapter VII of the UN Charter. Similar guiding principles, suggested for Security Council measures under Chapter VII in the report by the High-Level Panel Report and in UN Secretary General Kofi Annan’s ‘In Larger Freedom Report’, have also been rejected by the Council.12 The WSO Document neither advances the question of how to deal with unauthorised humanitarian interventions nor sets it back, according to Bellamy.13 The topic of such interventions was far too controversial to be considered in the inter-

Dian a A m n éu s / 160

governmental debates at the Summit, and the main focus of the Summit was on improving, reforming and strengthening the UN system, rather than considering alternative ways of operating militarily outside the UN.14 The placing of the RtoP paragraph under the chapter in the WSO Document dealing with human rights and the rule of law, separately from the section on the use of force, also points to this interpretation.15 The Secretary-General’s report aimed to neutralise the tensions between proponents, sceptics and opponents of the RtoP principle by introducing three pillars for the implementation of RtoP.16 The lively debate among states in the General Assembly in July 2009 confirmed a continued endorsement of the RtoP principle under the formula of ‘three pillars – four crimes’.17 Several states expressed a reluctance to acknowledge the equally important role of the third pillar and an aversion to robust response by the international community other than as a last resort measure. However, only a few states displayed continued objections toward the principle of RtoP as such, and instead, earlier sceptics at the 2005 UN Summit confirmed their commitments to RtoP.18 The second General Assembly debate on RtoP in August 2010 displayed some continued confusion and disagreement among a number of states on the status and application of RtoP.19 A handful of states raised criticism regarding the legitimacy and selectivity of the Security Council in responding to mass atrocities and of its decisions on military enforcement measures to protect civilians.20 Cuba, Egypt and Sudan expressed their wish to enhance the role of the General Assembly in managing and addressing early warning and assessments on mass atrocities.21 The continued international tangle regarding the legality and legitimacy of the different forms of military force accepted under the principle of RtoP was, regrettably, not sufficiently delineated in the Secretary-General’s 2009 RtoP report.22 Notwithstanding, in the recent humanitarian case of Libya, the Security Council Resolutions 1970 and 1973 illustrate a mature and strong international consensus in the Council vis-à-vis its capacity to respond in a timely and decisive manner to mass atrocity crimes by using enforcement measures when necessary, under the doctrine of RtoP.23

3

Who has a Legal Right or Obligation to Undertake Humanitarian Interventions under the Responsibility to Protect?

We now return to the question of who or which actors have or are developing a legal right to make authoritative decisions on military intervention in another state to protect the population against genocide, crimes against humanity, war crimes,or ethnic cleansing when a state fails to protect. The thesis has built on the hypothesis that for each of these actors, a separate rule asserting a legal right to humanitarian intervention must emerge in international law, modifying the current jus ad bellum.

H a s H u m an i tar i an Interventio n Beco me Pa rt of I nternat i on al Law ? / 161

Such rules may thus emerge through separate customary processes for each type of actor, with ensuing informal modification of treaty law on jus ad bellum. The practice by these actors must therefore be assessed separately. Legal rights should generally be linked to a specific actor and should arguably not be generic.

3.1 The Security Council

We begin with the Security Council practice of ‘authorising’24 humanitarian intervention under Chapter VII of the UN Charter in the post-Cold War cases of Somalia (1992), Bosnia (1992-1993), Rwanda (1994), and also with (partial) consent in East Timor (1999) and Darfur (2006-2007). Examining these cases through an RtoP lens, it is revealed that the Council has consistently complied with the relevant RtoP criteria in all cases.25 Grave crimes in international law were being committed in all states, while their governments were considered to be manifestly failing to protect the populations. Peaceful means were found inadequate by the Council under Chapter VII (Article 42) of the UN Charter when deciding to adopt the resolutions authorising military interventions for humanitarian purposes in these cases. Despite the failure to protect the populations in these states against grave crimes in a timely and decisive manner, the Security Council has, through its practice, manifested its capacity, political will and legal right under Chapter VII of the UN Charter to decide on military enforcement measures to protect populations within a state. The practice of authorising member states and/or regional organisations to conduct humanitarian interventions26 shows that the Council perceives itself as having not only a legal right, but also a moral and political responsibility to protect people from mass atrocities under certain circumstances.27 The endorsed RtoP principle does not, however, impose a legal obligation on the Council to intervene by military means to protect populations in all situations involving mass atrocities, but underlines that assessments are to be made on a ‘case-by-case basis’. This legal right has been formed by evolutionary interpretation and the informal modification of the UN Charter by subsequent practice of the Council, through its extensive interpretations and application of what constitutes a ‘threat to the peace’ under Chapter VII (Article 39) of the UN Charter.28 The cases form consistent practice, which I argue has attracted the necessary common consent, resulting in informal modification of the UN Charter in the same manner as was done with the voting rules in Article 27 (3) of the UN Charter.29 This modification arguably falls under the ordinary meaning of the wording of Article 39, and is in accordance with Article 31 (3) (b) of the Vienna Convention on the Law of Treaties.30 In the previously mentioned cases, this new practice was followed by decisions on coercive military measures under Chapter VII. This latter practice of authorising military enforcement measures has attracted limited criticism, for example regarding the Council’s political legitimacy and selectivity in taking action, but the legality of its decisions has not been challenged ultra vires.31 Once the determination of a

Dian a A m n éu s / 162

threat to the peace has been made, both Article 41 and 42 of the UN Charter are available options for the Council to address the threat.32 To summarise, although the Security Council failed to protect human security in the above-mentioned cases, under lex lata, situations of violent and severe threats to human security amounting to grave crimes in international law within a state may be considered ‘threats to the peace’ by the Security Council. When the state concerned manifestly fails to protect and peaceful means have proved to be inadequate, these threats may then lawfully be addressed by the authorisation of military enforcement action under the UN Charter.

3.2 RtoP by Military Means for Other Actors when the Security Council Fails to Protect? 3.2.1 The General Assembly and Uniting for Peace

The General Assembly has a right to recommend peacekeeping operations through the Uniting for Peace Procedure under Resolution 377 (V).33 Through its practice of recommending peacekeeping in the cases of Korea (1950), Egypt (1956) and Congo (1960), so-called ‘Chapter VI½ mandates’ were created by means of informal modification of the UN Charter.34 Due to the recommendatory character of Uniting for Peace decisions, the Procedure relies on state consent as the legal basis for such peacekeeping missions. Such operations do not fall under the definition of humanitarian intervention. Moreover, the resolution does not provide a separate and new legal basis for authorising military force by the General Assembly outside Chapter VII of the UN Charter when state consent is lacking. Such use of force recommendations under the resolution are limited to situations of a ‘breach of the peace’ or ‘aggression’, and not ‘threats to the peace’, which has been the common terminology used by the Security Council in its Article 39 determination of humanitarian emergencies within a state. A crisis involving mass atrocity crimes which is not linked to a breach of the peace or aggression does thus not have support under the resolution.35 Due to its dependency on host-state consent, the Uniting for Peace resolution does not provide an appropriate legal vehicle for decision-making on humanitarian interventions. There is, furthermore, no practice of authorising humanitarian interventions by the General Assembly under the Uniting for Peace resolution, and there is currently little risk that the Procedure will be used for non-consented military interventions, since the political majority in the Assembly is opposed to unauthorised humanitarian interventions. The ICISS proposal to institutionalise the Procedure as a mechanism for RtoP when the Security Council is unable or unwilling to protect is thus, unfortunately, unconvincing.36

H a s H u m an i tar i an Interventio n Beco me Pa rt of I nternat i on al Law ? / 163

3.2.2 Regional Organisations

The few cases of unauthorised humanitarian interventions by regional organisations examined using an RtoP lens are the post-Cold War interventions by the Economic Community of West African States (ECOWAS) Monitoring Group (ECOMOG) in Liberia (1991) and NATO in Kosovo and Serbia (1999).37 Both cases expose situations where grave crimes were being committed at the time of the interventions, and both states were manifestly failing to protect their respective populations. In Liberia, President Doe had lost control of 90 per cent of the territory and had no capacity to provide security.38 The Kosovo Albanians were subjected to persecution and ethnic cleansing by the Milošević government. The Security Council debates on Kosovo indicate that the Council was unable or unwilling to make a decision on military measures to protect populations in danger, and in the case of Liberia, the Council failed to consider the civil war for six months after it broke out.39 The precautionary principles were generally applied in both cases, aside from the principle of proportionality, which was the most controversial and disputed aspect of NATO’s air campaign, but which was also questioned to some extent with regard to the ECOMOG operations for having violated humanitarian law. The interventions exacerbated the humanitarian crisis, but it could also be argued that they were necessary to halt the commission of atrocities and therefore had a positive impact on the outcome in the long run. Although there were various parallel intentions behind the interventions, both have been regarded as having a primary and predominantly humanitarian purpose.40 The principle of last resort was most likely complied with in both cases, although this was questioned by some states in the case of Kosovo. It is clearly difficult to make an assessment on ‘reasonable prospects of success’ because it builds on speculations and analysis by the intervening parties at the time of intervention. The fact that NATO and ECOWAS went ahead could reasonably be seen as being based upon them having reached a positive answer to this question. Due to the many protests in the case of Kosovo, but also to some extent by francophone African states with regard to the ECOMOG operation, these examples expose weak opinio juris for a modification of jus ad bellum. The case of Kosovo has even less precedential value because of persistent objections by the specially affected states of China and Russia as permanent members of the Security Council. It could at best be argued that a customary process may have started on the basis of these two cases despite some inconsistencies, but it has certainly not yet crystallised into hard law. These cases are insufficient in terms of consistency and uniformity to consolidate such an emerging legal norm, and the process has not led to any informal modifications of Articles 53 and 2(4) of the UN Charter or of the customary prohibition on the use of force. More constant and uniform practice is still needed.41 The legal theory of ex post facto authorisation42 was employed in the Liberia case, and the theory of implied authorisation43 in the NATO case, in order to justify and provide legitimacy to the interventions.44 Claimed rights to such forms of authorisation purporting to legalise the interventions due to the exceptional circumstances

Dian a A m n éu s / 164

has, however, not yet become part of lex lata, but are still merely theories de lege ferenda.45 More state practice is needed to confirm these as legalising grounds under international law. The principle of ‘state of necessity’, precluding wrongfulness and state responsibility when the action is the only way for a state to safeguard an essential interest against a grave and imminent peril, was also referred to by Belgium in the pleadings before the International Court of Justice (ICJ) in the Legality of the Use of Force cases.46 Crawford denies, however, that state of necessity may justify humanitarian intervention and asserts that Article 25 of the ILC Draft Articles does not regulate the use of force.47 In addition, the ICJ confirms that the principle was created for the protection of the state and not formulated for the protection of people in other states.48 This does not close the door to a customary development on the matter, but more state practice is required to confirm such a modification. 3.2.3 Coalitions of Willing States or Single States

There is insufficient usus, and opinio juris is clearly lacking in support of a customary norm on unauthorised humanitarian intervention by a coalition of willing states or single states in international law. Such interventions thus constitute a violation of Article 2(4) of the UN Charter, according to a traditional reading.49 The only case of such unauthorised humanitarian interventions having a predominantly humanitarian motive is the protection of the Kurds in Northern Iraq through the use of no-fly zones from 1991 onwards,50 initiated by the US, the UK and France, and later including additional NATO states.51 Security Council Resolution 688 gave no explicit authorisation to use military force, which is why this intervention was not in conformity with the UN Charter.52 Unilateral humanitarian intervention continues to be outlawed in international law. Implied authorisation of the Security Council was also claimed in this case, but it had neither a legalising effect nor contributed to a new customary right.53

4

Prior Treaty-Based Humanitarian Interventions – The African Exception?

The emergence of prior treaty-based consented interventions within the charters of African regional and sub-regional collective security organisations pose new questions on the legality of unauthorised humanitarian interventions when lacking concurrent consent by the parties concerned at the time of intervention.54 Might such interventions constitute a legal exception from the prohibition on the use of force? The majority of legal scholars hold that concurrent consent at the time of intervention is needed to legalise such use of military force (such as peacekeeping operations).55 There is not yet state practice on such unauthorised interventions without host state consent, cf. AMIB and AMIS,56 but if such state practice were to emerge in future and become widely accepted on the basis of prior treaty-based consent alone, it might create special custom ratione materiae and personae, region-

H a s H u m an i tar i an Interventio n Beco me Pa rt of I nternat i on al Law ? / 165

ally applicable vis-à-vis the member states of such regional organisations.57 Such a customary development would then create a parallel subsystem regulation to the treaty and customary prohibition on the use of force, informally modifying Articles 2(4) and 53 of the UN Charter.

5

Concluding Remarks

As most states have already come to acknowledge, RtoP is neither to be equated with nor is developing into a right to unauthorised humanitarian intervention in international law. Furthermore, in the post-9/11 era, there appears to be little political will within the international community for consolidating a right for new actors to undertake humanitarian interventions under the RtoP framework. The only possible theoretical exception to the prohibition on the use of force may be the future emergence of regional practice of unauthorised humanitarian intervention undertaken on the basis of prior treaty-based consent. These conclusions should prove a comforting and reassuring outcome for RtoP sceptics. However, while this may not stop states from abusing or misapplying the norm of RtoP with regard to military force, such state practice will be condemned by the majority of the international community for violating international law and thus not contribute to the creation of a legal norm to this effect. I do not wish to encourage states to make renewed efforts to regulate the ‘gap’ between the legality and legitimacy of humanitarian intervention with lex specialis through customary law. I agree with many other international lawyers who have argued that ‘hard cases make bad law’.58 The risk of abuse of such an emerging right under the RtoP framework is much greater than the potential for genuine cases of humanitarian intervention. Therefore, we should uphold the prohibition on the use of force and employ RtoP in ways that foster a culture of peace.59

Notes 1 The definitions vary according to the inclusion or exclusion of the authorisation of the Security Council, on interventions for the protection of the intervening states’ own nationals, the existence of consent or not by the state that is the subject of intervention, and different formulations of situations involving human rights violations for which such intervention is taken to remedy. Cf U Beyerlin, ‘Humanitarian Intervention’ in: R Bernhardt (ed) Encyclopedia of Public International Law (Elsevier Science BV, Amsterdam 1995) 926-33 ff; cf B Simma (ed), The Charter of the United Nations – A Commentary (Oxford UP, Oxford 2002) vol 1, 130 ff; T D Gill, ‘Humanitarian Intervention: Legality, Justice and Legitimacy’ (2004) 4 Gl Comm Ybk Intl L & Jrspr 51, 53-6. 2 The definition used in this chapter covers 1) Security Council-authorised humanitarian interventions, carried out either by one state, a group of states or a regional organisation; and 2) unauthorised humanitarian interventions carried out by either a regional organisation or a single state or a less institutionalised group of states in coalition. Cf a similar

Dian a A m n éu s / 166

definition used in J L Holzgrefe, R O Keohane (eds), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Oxford UP, Oxford 2003) 18. 3 This chapter summarises the same research question posed and assessed in the doctoral dissertation: D Amnéus, ‘Responsibility to Protect by Military Means – Emerging Norms on Humanitarian Intervention?’ (Doctoral Thesis, Stockholm University 2008). 4 UNGA, ‘2005 World Summit Outcome’ (2005) UN Doc A/60/L.1 (WSO Document) para 139. 5 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) accessed 24 May 2011 (ICISS Report) ch 6. 6 Amnéus (n 3) 256-76 on the RtoP criteria, and chs 6.3.3, 7.1.5.4, and 7.2.4.4 on the case studies. 7 Report of the Secretary-General, ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677 (Implementing the Responsibility to Protect Report). 8 F L Kirgis, ‘International Law Aspect of the 2005 World Summit WSO Document’ (4 October 2005) ASIL Insights accessed 24 May 2011: Kirgis bases this assessment on a narrow view of the Security Council’s powers to act under Chapter VII. He states that the Council’s authority to use force under Chapter VII remains somewhat controversial if the mass violence in question takes place entirely ‘within’ a state. 9 A General Assembly resolution is not a legally binding instrument in international law, but the WSO Document may be seen as soft law and reflect evidence of opinio juris of states, contributing to the emergence of an international customary rule when accompanied by general, consistent and uniform state practice in support of the principle. 10 The WSO Document did not, for example, affirm RtoP as a norm that spans a continuum of prevention, reaction and rebuilding. See W R Pace and N Deller, ‘Preventing Future Genocides: An International Responsibility to Protect’ (2005) 36 World Order 15, which concludes that the final text on RtoP of the WSO Document is weaker than in the HighLevel Panel or the Secretary-General’s 2009 report. The adopted RtoP principle also excludes the ICISS precautionary principles for intervention, mainly due to the strong opposition from the United States, China and Russia. See A J Bellamy, ‘Whither the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit’ (2006) 20(2) Eth & Intl Aff 143, 165-6. The United States did not want criteria that would limit its freedom of action or reinforce RtoP’s prescriptive component. China and Russia opposed the criteria for fear of abuse. Other governments expressed concern during the General Assembly debates that the criteria would be applied arbitrarily or subjectively. 11 Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned (Oxford UP, Oxford 2000) 4 and 10. For an analysis of the relationship between legality, legitimacy, morality and constitutionality, see: I Clark, Legitimacy in International Society (Oxford UP, Oxford 2005) 207-26. 12 Report of the High-Level Panel on Threats, Challenges and Change ‘A More Secure World: Our Shared Responsibility’ (2004) UN Doc A /59/565 (High-Level Panel Report); Report of the Secretary-General ‘In Larger Freedom: Towards Development, Security and Human Rights for All’ (2005) UN Doc A/59/2005 (In Larger Freedom Report). 13 Bellamy (n 9) 168. 14 According to the Global Centre for the Responsibility to Protect, the WSO Document consensus on RtoP was silent on the question of what would happen if the Security Council fails to act, and supports the opinion that even in a situation where peaceful means are inadequate and the precautionary principles are satisfied, it would be illegal

H a s H u m an i tar i an Interventio n Beco me Pa rt of I nternat i on al Law ? / 167

for states to take military action in the absence of a Security Council resolution, See Global Centre for the Responsibility to Protect, “Frequently Asked Questions” < http:// globalr2p.org/pdf/FAQ.pdf > accessed 24 May 2011; See also Pace and Deller (n 9) 29. 15 The debates at the UN Summit substantiate such a conclusion. There was no state that officially expressed support of unauthorised humanitarian intervention, and even the strongest proponents in the EU and Africa stated that the use of military force to protect was a measure only of last resort and exceptional circumstances. Russia expressed the understanding that the Security Council already has the power and legal right to carry out an external responsibility to protect under the UN Charter. 16 Pillars: 1) the primary responsibility of states; 2) international assistance and capacitybuilding to support states to fulfill their primary responsibility to protect; and 3) responsibility by the international community to respond collectively in a timely and decisive manner. 17 Global Centre for the Responsibility to Protect (GCRtoP), ‘Implementing the Responsibility to Protect – The 2009 General Assembly Debate: An Assessment’ (Report, August 2009) accessed 24 May 2011. 18 However, a handful of states expressed concerns over inconsistency or selectivity in the application of RtoP, and risk of abuse of RtoP beyond the four crime definitions. For example, Nicaragua, Venezuela, Cuba, Pakistan, Sudan, Sri Lanka and Iran expressed consistently sceptical and critical views in 2009; see Implementing the Responsibility to Protect Report (n 6). More and more states, however, are recognising that RtoP cannot be equated with the right to humanitarian intervention. 19 The debate concerned the Report of the Secretary-General, ‘Early Warning, Assessment, and the Responsibility to Protect’ (2010) UN Doc A/64/864. 20 Eg Nicaragua’s statement conveyed the view that any decision on the use of force made by the Security Council is non-democratic and therefore void and ineffective until the Council is reformed to better represent the world community of states, see Nicaragua Statement in the General Assembly, ‘Debate Interactiva de la Asamblea General - Alerta temprana y evaluación y la responsibilidad de proteger’ (9 August 2010) accessed 24 May 2011, para 3. From an international legal perspective, however, the UN Charter is still in force, to be applied and respected by its member states, including the interpretation and application of the Charter by the Security Council. 21 GCRtoP, ‘Early Warning, Assessment, and the Responsibility to Protect - Informal Interactive Dialogue of the General Assembly held on 9 August 2010’ (Report, 9 August 2010) accessed 24 May 2011. 22 Unfortunately, it does not set up clear lines between the lawful and unlawful forms of military force under RtoP. See and cf the formulations on military force: Implementing the Responsibility to Protect Report (n 6) under pillar II in para 29, 40-42, and under pillar III in para 56-58, 62-63. See, however, a thorough examination and legal analysis of the different forms of military force under RtoP pillars II and III (including host-state consented peacekeeping operations (PKO), PKO with double legal bases, and humanitarian interventions) in a forthcoming article by Diana Amnéus in 26 (2) Global Society. 23 UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970; UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973.

Dian a A m n éu s / 168

24 Authorisations under Chapter VII constitute a middle ground between binding decisions and recommendations in that they do not oblige member states to take action but merely allow them to do so, at the same time obliging the target state to tolerate enforcement measures; see G Ress, J Bröhmer, ‘Article 53’ in B Simma (ed), The Charter of the United Nations – A Commentary (n 1) 728, para 32. 25 See Amnéus (n 3) 342-386; cf case studies in S Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford UP, Oxford 2001); F R Téson, Humanitarian Intervention: An Inquiry into Law and Morality (3rd edn, Transnational Publishers Inc, Ardsley 2005); N Wheeler, Saving Strangers. Humanitarian Intervention in International Society (Oxford UP, Oxford 2000); F K Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention (Kluwer Law International, The Hague 1999); T B Seybolt, Humanitarian Military Intervention. The Conditions for Success and Failure (Oxford UP, Oxford 2007); A J Bellamy, ‘Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention after Iraq’ (2005) 19 Eth & Intl Aff 31; House of Commons International Development Committee, Darfur, Sudan: The Responsibility to Protect (The House of Commons, Fifth Report of Session 2004-5, Volume I 2005); N Grono, ‘Darfur: The International Community’s Failure to Protect’, in N Grono et al, Explaining Darfur - Four Lectures on the Ongoing Genocide (Vossiuspers UvA, Amsterdam 2006); Anonymous, ‘Ensuring A Responsibility to Protect: Lessons From Darfur’ (2007) 14 H R Brief 26; L F Battiste, ‘The Case for Intervention in the Humanitarian Crisis in the Sudan’ (2005) 11 Ann Surv Int’l & Comp L 49. 26 Bosnia: UNSC Res 770 (13 August 1992) UN Doc S/RES/770; UNSC Res 816 (31 March 1993) UN Doc S/RES/816; UNSC Res. 836 (4 June 1993) UN Doc S/RES/836; Somalia: UNSC Res 794 (3 December 1992) UN Doc S/RES/794; UNSC Res 814 (26 March 1993) UN Doc S/ RES/814; UNSC Res 837 (6 June 1993) UN Doc S/RES/837; Rwanda: UNSC Res 929 (22 June 1994) UN Doc S/RES/929; East Timor: UNSC Res 1264 (15 September 1999) UN Doc S/ RES/1264; Darfur: UNSC Res 1706 (31 August 2006) UN Doc S/RES/1706. 27 A Boyle and C Chinkin, The Making of International Law (Oxford UP, Oxford 2007) 111. 28 I Österdahl, Threat to the Peace – The Interpretation by the Security Council of Article 39 of the UN Charter (Iustus förlag, Uppsala 1998) 85, 90; T G Weiss, Humanitarian Intervention War and Conflict in the Modern World (Polity Press, Cambridge 2007) 49. 29 For a treaty norm to become informally modified by subsequent practice within the treaty framework, there must be ‘consistent practice’ and ‘common consent’ by the state parties to the treaty. This means that there must be a common understanding, or general acceptance, among the parties as a whole about the modification of the treaty, implying more than a majority of the members but not a qualified majority. The existence of opinio juris as in the formation of customary law is thus not required. See Amnéus (n 3) Chapter 2.5.3; ‘Report of the International Law Commission’ (1966) 2 UN Ybk ILC 236; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (Advisory Opinion) [1970] ICJ Reports, 16, 22, para 22. 30 Cf E de Wet who takes a narrow approach to the powers of the Security Council under the Charter in that ‘peace’ and ‘threats to the peace’ must involve international threats and not solely internal security threats; see E de Wet, The Chapter VII Powers of the United Nations Security Council (Hart Publishing, Oxford 2004) 149, 170. However, the Commentary to the UN Charter confirms that international effects are not necessary and that an internal armed conflict as such may constitute a threat to the peace under Article 39, J A Frowein, N Kirsch, ‘Article 39’ in B Simma (ed), The Charter of the United Nations (n 1) 723-724, para 18. But future Council-authorised humanitarian interventions in humani-

H a s H u m an i tar i an Interventio n Beco me Pa rt of I nternat i on al Law ? / 169

tarian crises within states, but not linked to an internal armed conflict, would break new ground and constitute an additional new interpretation and widening of the UN Charter. Cf the debate in the Burma Case after Cyclone Nargis (2008). 31 Amnéus (n 3) 334 ff. 32 Two legal limitations govern the decisions on authorising the use of force according to Article 42; the principles of necessity and proportionality, J A Frowein, N Kirsch, ‘Article 42’ in B Simma (ed), The Charter of the United Nations. A Commentary (n 1) 753, para 8. 33 UNGA Res 377 (V) (3 November 1950) UN Doc A/RES/377 (V). 34 See UNGA Res 498 (V), (5 November 1951) UN Doc A/RES/498 (V), para 4; UNGA Res 1000 (ES-I) (5 November 1956) UN Doc A/RES/1000 (ES-I), 1956; UNGA Res 1474 (ES-IV) (16 September 1960) UN Doc A/RES/1474 (ES-IV). 35 See section A para 1 of the resolution (n 33); Y Dinstein, War, Aggression and Self-Defence (4th edn, Cambridge UP, Cambridge 2005) 317. 36 The Uniting for Peace procedure appears to have fallen into disuse and was not even seriously contemplated during the Kosovo crisis due to lack of sufficient political will to take such a decision. See S Chesterman, ‘Hard Cases Make Bad Law: Law, Ethics, and Politics in Humanitarian Intervention’ in A F Lang Anthony (ed), Just Intervention (Georgetown University Press, Washington DC 2003) 48, 57, n 18. For the same reason, it was not mentioned in the WSO Document. 37 Amnéus (n 3) 474-502, 440-443; See also D Wippman, ‘Enforcing the Peace: ECOWAS and the Liberian Civil War’ in L F Damrosch (ed), Enforcing restraint: Collective Intervention in Internal Conflicts (Council on Foreign Relations Press New York, 1993) 159; J Allain, ‘The True Challenge to the United Nations System of the Use of Force: The Failures of Kosovo and Iraq and the Emergence of the African Union’ in 8 (2004) Max Planck Yearbook of United Nations Law 237, 260; M Gestri, ‘ECOWAS operations in Liberia and Sierra Leone: Amnesty for past unlawful acts or progress toward future rules?’ in M Bothe, M E O’Connell, N Ronzitti, (eds), Redefining Sovereignty. The Use of Force After the Cold War (Transnational Publishers Inc. New York, 2005) 220. 38 The invitation in the case of Liberia cannot be regarded as a valid consent or legal basis for the intervention; Gestri, ‘ECOWAS operations in Liberia and Sierra Leone’ 228. 39 On Kosovo, see the Russian and Chinese statements in S/PV.3937, 24 October 1998, UN Doc S/PV.3937, and the Slovenian in S/PV.3988, 24 March 1999, UN Doc S/PV.3988; The debate on Liberia only ended in a presidential note commending the ECOWAS initiative, see Note by the President of the Security Council, S/22133, 22 January 1991, UN Doc S/22133. 40 S D Murphy, Humanitarian Intervention. The United Nations in an Evolving World Order (21 Procedural Aspects of International Law Series, University of Pennsylvania Press 1996); S/PV.3138, 19 November 1992, UN Doc S/PV.3138, 160; P Heinbecker, ‘Human Security: The Hard Edge’ (Spring 2000) Canadian Military Journal 11, 15. 41 The need to also modify the jus dispositivum elements of the parallel customary norm to Article 2(4) prohibiting the use of force makes the customary process more complex and arguably more time consuming. Amnéus (n 3) 498-500; cf M E Villiger, Customary International Law and Treaties (Martinus Nijhoff, The Hague 1985) 24-25; on the formation and modification of customary law see International Law Association, Statement of Principles Applicable to the Formation of General Customary International Law (Final Report of the Committee, London Conference 2000); M Akehurst, ‘Custom as a Source of International Law’ (1974) 47 British Yearbook of International Law 1; M H Mendelson, ‘The Formation of Customary International Law’ (1998) 272 Recueil des Cours 155; R

Dian a A m n éu s / 170

Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies (A. W. Sijthoff, Leyden 1968). 42 Ress/Bröhmer,’Article 53’ 866, para 25. 43 Ibid, para 24. 44 See the legal analysis in Amnéus (n 3) 400-407. 45 Ress/Bröhmer, ‘Article 53’ 864-865, paras 13-19; Österdahl, Inger, ‘Preach What You Practice. The Security Council and the Legalisation ex post facto of the Unilateral Use of Force’ (2005) 74 Nordic Journal of International Law 231. 46 Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Verbatim Record, CR 99/15, 10 May 1999, 13-14; S/PV.3988, 24 March 1999, 12; On the ‘principle of necessity’, see the Commentary to Article 25 of the ILC Draft Articles, J Crawford, The International Law Commission’s Articles on State Responsibility. Introduction, Text and Commentaries (Cambridge UP, Cambridge 2002) 178-186. 47 Ibid, 30-31; see also J E Rytter, ‘Humanitarian Intervention without the Security Council: From San Francisco to Kosovo and Beyond’ (2001) 70 Nordic Journal of International Law 121, 135-136. Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgement of 25 September 1997, ICJ Reports 1997, 7, 40-41, para 52. 48 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgement of 25 September 1997, ICJ Reports 1997, 7, 40-41, para 52. 49 T M Franck, Recourse to Force. State Action Against Threats and Armed Attacks (Cambridge UP, Cambridge 2003) 172; Chesterman, Just War or Just Peace 49-50, 86-87; International Commission on Intervention and State Sovereignty, The Responsibility to Protect. Report of the International Commission on Intervention and State Sovereignty (International Research Centre 2001) 54; G Evans, Gareth, M Sahnoun, ‘The Responsibility to Protect’ (2002) 81 Foreign Affairs 99, 107; cf an account of the counter-restrictionist view in Amnéus (n 3) 447. 50 On earlier Cold War cases discussed as humanitarian interventions, see supra note 32. 51 Franck (n 49) 152-155; Wheeler (n 25) 153-170. 52 UNSC Res 688 (5 April 1991) UN Doc S/RES/688. 53 The theory of implied authorisation had just been initiated at the time and is still not part of lex lata. Amnéus (n 3) 452-454; C Gray, International Law and the Use of Force, (Oxford UP, Oxford 2004) 280-281. 54 Article 4 (h) of the Constitutive Act of the African Union, Lomé, Togo, 11 July, 2000; see also Protocol on Amendments to the Constitutive Act of the African Union, Addis Ababa, 3 February 2003 and Maputo, 11 July, 2003; ECOWAS, Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-Keeping and Security, (reprinted in (2000) 5 Journal of Conflict and Security Law 231), Lomé, 10 December 1999; T Murithi, ‘The responsibility to protect, as enshrined in article 4 of the Constitutive Act of the African Union’ (2007) 163 African Security Review 14; K Powell, The African Union’s Emerging Peace and Security Regime. Opportunities and Challenges for Delivering on the Responsibility to Protect (Institute for Security Studies 2005). 55 D Wippman, ‘Treaty Based Intervention: Who Can Say No?’ (1995) 62 University of Chicago Law Review 607, 623; G Lind, The Revival of Chapter VIII of the UN Charter. Regional Organisations and Collective Security (Stockholm University 2004) 158; cf. Abass, Ademola, Regional Organisations and the Development of Collective Security. Beyond Chapter VIII of the UN Charter (Hart, Oxford 2004) 165; B Kioko, ‘The right of intervention under the African Union’s Constitutive Act: From non-interference to non-intervention’ (2003) 85 International review of the Red Cross, 807, 817.

H a s H u m an i tar i an Interventio n Beco me Pa rt of I nternat i on al Law ? / 171

56 Amnéus (n 3) 424-428; Y Gammarra, A Vicente, ‘Securing Protection to Civilian Population: The Doubtful United Nations Response in Sudan’ (2004) 4 The Global Community Yearbook of International Law and Jurisprudence 195-224. 57 Amnéus (n 3) 429; Villiger, Customary International Law and Treaties 217. 58 S Chesterman, ‘Hard Cases Make Bad Law’; T M Franck, ‘Interpretation and change in the law of humanitarian intervention’ in J L Holzgrefe, R O Keohane (eds), Humanitarian Intervention. Ethical, Legal and Political Dilemmas (Cambridge UP, Cambridge 2003) 230. 59 M E O’Connell, ‘Responsibility to Peace: A Critique of R2P’ (2010) 4 Journal of Intervention and Statebuilding 39.

12

Assigning Humanitarian Intervention and the Responsibility to Protect James Pattison1

1 Introduction I am concerned with an apparently straightforward question: who should undertake humanitarian intervention to help discharge the Responsibility to Protect (RtoP)? Although political and legal issues are important, this question is ultimately a normative one: the humanitarian intervention of which international actor would be morally preferable and, potentially, morally obligatory? There are two central reasons why the question arises. First, RtoP doctrine does not clearly identify which international actor should intervene. Most versions of RtoP require the United Nations (UN) Security Council to authorise intervention, but this does not identify any particular agent to undertake the action. The problem, as David Miller2 notes, is one of diffused responsibility. That is, RtoP doctrine asserts a general duty that falls on the international community to do something when the state where the humanitarian crisis is occurring is manifestly failing to tackle the crisis, but does not outline who, in particular, should act.3 Second, as I will discuss below, there are no outstanding candidates for humanitarian intervention in the international community. The various potential options, such as the North Atlantic Treaty Organisation (NATO), the UN, the African Union (AU), the European Union (EU), states, and private military and security companies (PMSCs), possess some attractive features, but also several sizable drawbacks. The AU, for instance, is sometimes more willing to act, but suffers from large shortfalls in capacity, especially when intervening on a large scale. Certain states, especially the major Western powers, have more military might, but may – and perhaps for good reason – fail to have strong international and domestic support for their intervention. Accordingly, it is not clear which agent in the international community should discharge the humanitarian intervention part of RtoP. As such, I consider who it is that should intervene.

J a m es Patti s on / 174

1.1 Two Clarifications

Two clarifications are necessary. To start with, let me say something about the relationship between humanitarian intervention and RtoP. It is increasingly common to hear that RtoP does not imply humanitarian intervention.4 The reasoning behind such moves seems to be the fear that equating humanitarian intervention with RtoP will erode some of the delicate support for the doctrine in the international community, especially amongst certain members of the Non-Aligned Movement. If RtoP becomes synonymous with the wars in Iraq and Afghanistan, the reasoning goes, states may be less willing to endorse the substantive proposals that are recommended by advocates of RtoP and which aim to realise what the doctrine is fundamentally about: the development of preventative measures to avert future Rwandas. Although this aim is laudable, humanitarian intervention is still part of RtoP.5 The matter is partly terminological. Although various incarnations of RtoP may not use the language of humanitarian intervention, they still leave open the option for forcible military intervention to tackle a serious humanitarian crisis when required. The International Commission on Intervention and State Sovereignty (ICISS) (2001) uses the cumbersome phrase ‘intervention for human protection purposes’ largely as a synonym for humanitarian intervention.6 At the 2005 World Summit, states agreed ‘to take collective action, in a timely and decisive manner, through the Security Council… should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity’.7 And, in the UN Secretary-General Ban Ki-moon’s judicious report on RtoP,8 there remains the option for ‘enforcement action’ under Pillar Three. Thus, the different versions of RtoP still include the option of humanitarian intervention, albeit under different guises.9 Moreover, even if one is tied (perhaps for political reasons) to the view that humanitarian intervention is not part of RtoP, the various RtoP incarnations leave unanswered the issue of who should perform ‘intervention for human protection purposes’, ‘enforcement action’, and so on. As such, the central issue that I am concerned with – who should undertake military action for humanitarian purposes – will still arise. This is not to equate RtoP with the wars in Iraq and Afghanistan. Beyond whether the questions of these wars were (i) justifiable and (ii) can be adequately classified as cases of ‘humanitarian intervention’ according to any reasonable definition of the term (I am highly sceptical about both questions), these wars were obviously not part of RtoP. To see this, it helps to consider a larger point which is often missed about the relationship between humanitarian intervention and RtoP and which helps to diffuse much of the hysteria in some quarters10 surrounding both notions. On the one hand, humanitarian intervention is broader than RtoP. This is because, first, it is very clear that RtoP concerns only when a state is manifestly failing or unwilling to tackle four crimes within its borders: war crimes, ethnic cleansing, crimes against humanity and genocide. Most definitions of humanitarian intervention,11 however, assert that an action can be classified as a case of ‘humanitarian intervention’, and potentially be justifiable (if it meets the other requisite criteria) in

Ass i g n i ng H u m ani taria n Interventio n a nd Rto P / 175

other instances, such as serious human rights violations. Second, as already stated, RtoP tends to make it clear that any military interventions under its name must possess UN Security Council authorisation.12 Thus, unauthorised humanitarian interventions would not be included under RtoP; only legally sanctioned humanitarian interventions could be said to be ‘RtoP actions’.13 The upshot of these two points, then, is that there could conceivably be humanitarian interventions outside of RtoP umbrella. On the other hand, humanitarian intervention is narrower than RtoP. RtoP, as is well known, concerns much more than simply military intervention, but instead involves a gamut of diplomatic, non-military and military options before, during and after a humanitarian crisis. Out of these, humanitarian intervention will typically fall only under the ‘responsibility to react’ or ‘Pillar Three’. It follows that what it means to consider who should intervene differs according to whether one is concerned with (i) who should intervene to help the fulfil the responsibility to protect or (ii) who should undertake humanitarian intervention in response to a crisis. The former is a narrower question. In effect, it asks: ‘who should undertake military intervention when a state is manifestly failing to prevent genocide, ethnic cleansing, crimes against humanity and war crimes within its borders and when the Security Council authorises intervention?’ The latter is a broader question. It simply asks: ‘who should undertake military intervention in response to ongoing or impending grievous suffering or loss of life?’ The second clarification concerns how the question of assigning the military intervention part of RtoP should be understood. The RtoP doctrine implies that the international community possesses a remedial responsibility to tackle a humanitarian crisis when the state suffering the crisis is unable or unwilling to do so. In certain circumstances, this may mean that there is a moral duty to undertake humanitarian intervention. Indeed, there are a number of reasons why one may hold that there is a duty to intervene.14 For instance, this position is intuitively compelling: we seem to be obliged to act in cases such as Rwanda and can be rightly rebuked for not doing so. In addition, the duty to intervene is a corollary of the duty to remedy the effects (such as severe humanitarian crisis) of our upholding of an unjust global economic order, as well as the general duty to prevent human suffering. On this duty-based position, the issue seems to be a question of deciding how to assign the currently unassigned duty to intervene. Although this is a useful way of framing the issue for practical purposes, it is a little more complex. It is only the most legitimate agent that actually possesses the duty to intervene (if this agent fails to act, the next most legitimate agent has the duty to act, and so on). To explain, rather than there simply being an unassigned duty to undertake humanitarian intervention, there is, more broadly, a duty to tackle the humanitarian crisis, which may sometimes, but not always, lead to a duty to undertake humanitarian intervention.15 On certain occasions, there may be no intervener that will be able to undertake justifiable humanitarian intervention. The notion of an ‘unassigned duty

J a m es Patti s on / 176

to intervene’ in this instance seems mistaken – it would be an unassigned duty to undertake impermissible action (unjustifiable humanitarian intervention). In such a case, there still remains, however, a duty to do what can be done to tackle the crisis, such as by exerting domestic pressure and potentially collaborating with other agents so that military intervention in the future may become a legitimate option. In addition, it is worth noting that, even when the duty to intervene is assigned to the most legitimate agent, this does not mean that other agents do not possess any duties. Rather, they still possess duties to tackle the humanitarian crisis. So, on the duty-based position that most advocates of RtoP (and I) endorse, the issue is generally one of assigning a range of unassigned responsibilities to particular agents, including sometimes the duty to intervene, to the most legitimate agent. Others16 disagree with the notion that humanitarian intervention can be a duty, and assert that humanitarian intervention is only a moral right that actors can choose to exercise. On this position, the question of assigning the military intervention part of RtoP still arises – the issue is whose intervention we would prefer. But, unlike the duty-based view, the potentially most legitimate agents do nothing wrong by failing to act. The central issue that I am concerned with, then, is how we decide who the most legitimate agent is. To do this, I develop what I call the ‘Moderate Instrumentalist Approach’, which provides an account of the morally relevant qualities in an intervener.17 The next section will summarise this approach.

2

The Moderate Instrumentalist Approach

On the Moderate Instrumentalist Approach, the most important quality is an intervener’s likely effectiveness. As such, it is in part sympathetic to consequentialist reasoning. By effectiveness, I mean an intervener’s likely ability to improve the enjoyment of human rights (and primarily basic human rights), over the long term, and compared to other potential courses of action, such as non-intervention. Central to this notion of effectiveness is the success of the intervener in improving the enjoyment of human rights of those within the political community suffering the crisis (what I call an intervener’s ‘local external effectiveness’18). In addition, an intervener’s effectiveness should also incorporate its effects on the enjoyment of human rights of those in the world at large (what I call its ‘global external effectiveness’19) and of its own citizens (what I call its ‘internal effectiveness’20). Together, the three aspects of effectiveness are a necessary and primary determinant of an agent’s legitimacy. I take this position because the likely consequences of an intervention seem to be the most morally important concern when thinking about the ethics of humanitarian intervention. In short, above all else, what seems to matter most is that the intervener effectively tackles the humanitarian crisis and, in doing so, halts the mass violation of basic human rights. Given the potential to stop a qualitatively

Ass i g n i ng H u m ani taria n Interventio n a nd Rto P / 177

and quantitatively high degree of human suffering by effectively tackling the mass violation of basic human rights, other potentially morally relevant qualities seem to be less significant in comparison. There are several characteristics that an intervener most obviously needs to possess in order to be likely to be effective, such as adequate military capability, nonmilitary resources, a suitable strategy, and being able to act in a timely manner. There are also several more indirect characteristics that may also contribute to an intervener’s likely effectiveness, including having proper legal authorisation, the degree of internal and external support that it possesses for its intervention, and possessing humanitarian objectives. An assessment of these qualities, as well as an intervener’s previous track record and the particular circumstances of the humanitarian crisis, should provide a reasonable indication of an intervener’s potential effectiveness.

2.1 Non-Instrumental Qualities

There is more to assigning the military intervention part of RtoP than a purely consequentialist approach can capture, however. In most cases, there are several other morally relevant, non-instrumental qualities, in addition to an intervener’s likely effectiveness, that should play some role in determining who should intervene. Before we look at these, let me mention two qualities which are sometimes – but are wrongly21 – claimed to have significant independent value (although both may have instrumental value in that they may contribute to an intervener’s effectiveness). First, it is sometimes suggested that having proper legal authorisation from the UN Security Council is independently valuable. One argument made in defence of this claim is proceduralist. An intervener’s legal status is morally important, the argument runs, because of the moral value of the processes by which this law is formed, that is, by state consent to international law in general and UN Security Council authorisation of a specific intervention. Yet this argument is fairly weak, given the high degree of unfairness and inequality in the ways these two processes make the law on intervention. Another argument concerns abusive intervention: illegal humanitarian intervention will set a precedent that weakens the general prohibition on the use of force and opens the floodgates for abusive intervention. Or, it will itself be a Trojan Horse for abusive intervention. Yet these fears about abuse are largely exaggerated and tend to be out of sync with state practice. To be sure, Security Council authorisation does have value, but this value is for the most part only instrumental and, as such, can be largely incorporated under the importance of an intervener’s global external effectiveness. My point, then, is that although Security Council-authorised interveners are generally preferable for the instrumental reasons, Security Council authorisation does not provide a major independent reason to prefer authorised interveners. Second, unlike some, I do not think that an intervener’s motives are an important non-instrumental factor in its legitimacy. We can distinguish between an intervener’s intentions (its purposes) and its motives (its underlying reasons). Once we make this distinction, although intentions do have some relevance (especially

J a m es Patti s on / 178

when it comes to classifying whether an intervention is ‘humanitarian’ or not), it is doubtful whether an intervener’s having a humanitarian motive has substantial independent value. It does not seem to be that morally important whether an intervener’s leaders are motivated by a desire to stop the humanitarian crisis because it will help them to win re-election or because they genuinely want to assist those suffering. What then are the non-instrumentally valuable qualities? I will defend the moral importance of three qualities. The first, and perhaps most obvious, is that the intervener closely follows principles of jus in bello (principles of just conduct in war). These include a strict rule of non-combatant immunity, a rule of proportionate harm, and a restriction on the sort of soldiers that the intervener can use. In fact, these rules are even more stringent and even more important in the context of RtoP and intervening in response to the mass violation of human rights. This is because of the type of military operation that humanitarian intervention comprises – it should not be seen as outright war-fighting – and the humanitarian aims that it has. So, an intervener should avoid the sort of indiscriminate aerial bombing campaign conducted by NATO in Kosovo in 1999. The importance of an intervener’s fidelity to these principles cannot be completely captured by consequentialist thought, but instead relates in part to the difference between ‘doing’ and ‘allowing’ in moral philosophy (sometimes framed in terms of ‘killing’ and ‘letting die’). It is more important, to some extent, that an intervener avoids doing harm than it harms others by violating these principles. The second non-instrumentally valuable quality is the degree to which the intervener has internal support from its own citizens – what I call an intervener’s ‘internal representativeness’. If, for instance, France were thinking about intervening in Zimbabwe, it would need the support of French citizens. This is morally significant because those providing the resources for humanitarian intervention should have some say in how their resources are used and because of the value of individual selfgovernment, including on international matters. The third quality to a certain extent mirrors the second – it is what I call an intervener’s ‘external representativeness’. The intervener should be welcomed by those subject to the intervention. This matters because of the burdens of humanitarian intervention on those suffering the crisis and, again, because of the value of individual self-government.

2.2 An Objection

I will now briefly consider a potentially major objection to the Moderate Instrumentalist Approach. This is that requiring the most legitimate intervener (which will often be the most effective intervener on my account) to intervene in response to a serious humanitarian crisis is unfair on this agent. It is assigned a potentially burdensome duty to intervene simply by possessing certain qualities, such as military capability. Why should the fact that a state has invested heavily in military resources mean that it should be the one that bears the costs of intervention?

Ass i g n i ng H u m ani taria n Interventio n a nd Rto P / 179

In response, it is important to note, first, that if one holds that humanitarian intervention is not a duty, but simply a right, the issue of unfairness does not arise. On this position, the most legitimate intervener may choose not to exercise their right to act. The objection does have more force when one holds that there is a duty to intervene. Nevertheless, even on the duty-based position, any unfairness is mitigated by several points. To start with, at present, no one agent is likely to be left doing all the intervening all of the time. This is because different interveners are likely to be effective in different circumstances and the most effective response may be a combination of agents acting together. More substantively, I suggested above that there exists an unassigned duty to tackle serious humanitarian crises and that this duty is broader than the duty to intervene. It follows that other agents that are not directly involved in the intervention may nevertheless also possess highly demanding duties, such as a duty to help fund any intervention. This means that it is not only the intervener that has to face the burdens of tackling the crisis. This further reduces any likely unfairness of the Moderate Instrumentalist Approach.

3

Which Agent Should Act?

What does this mean in practice? Who should actually intervene according to this Moderate Instrumentalist Approach? Should it be the UN, NATO, regional organisations, states, a hybrid arrangement that pairs a combination of agents (such as the AU and UN), or even PMSCs? I think that this answer is largely the same for both the broader question of who should undertake humanitarian intervention and the narrower question of who should intervene according to the various RtoP formulations. This is a hybrid arrangement that pairs an international or regional organisation, such as the UN and AU (which is more likely to be externally representative), with a more militarily capable agent, such as NATO, Western states or the EU. Such an arrangement helps to build on the strengths of both types of agent.22 It utilises the experience of undertaking peace operations of the UN and AU and the financial and military resources of Western states. This type of arrangement also has the benefit of being less susceptible to claims of Western imperialism, given that it involves the UN or non-Western regional organisations, such as the AU. It also enables interventions that would otherwise struggle to get off the ground because, for instance, of Western reluctance to contribute troops or the military and financial limitations of the AU and UN. Furthermore, such an arrangement is less subject to the fairness objection considered above since the burdens of undertaking intervention are distributed amongst several agents. However, hybrid arrangements are not a panacea. They are only as good as the sum of their parts and the parts often have several deficiencies. For instance, although perhaps more likely to be internally representative (given that they are democratic) and possess significant military might, Western states – and in particu-

J a m es Patti s on / 180

lar, the UK and US – are now highly reliant on PMSCs for a range of functions, from logistics to training and armed guarding, and would be likely to use PMSCs in any future humanitarian intervention that uses ground troops. The problems of PMSCs in terms of effectiveness and the lack of accountability of private contractors23 call into question more generally the future effectiveness of any intervention by Western states, as well as its fidelity to the principles of jus in bello. There are also notable problems with the UN or AU as agents of intervention. These problems include, most notably, massive shortfalls in funding and equipment. In addition, the UN relies on a standby system of troop deployment, whereby it has to rely on ad hoc contributions of troops from member states to particular missions, which is time consuming and unreliable. To be sure, the UN’s current inefficiencies tend to be significantly over-exaggerated by certain commentators. After all, many UN peace operations have some degree of success and the fact that this is currently a boom time for UN peacekeeping (in terms of the number of peacekeepers and missions) means that the political obstacles to getting a force on the ground are sometimes surmountable. Nevertheless, the difficulties faced by these agents go beyond effectiveness. Both the UN and non-Western regional organisations tend not to be internally representative since those under their jurisdiction have little say in whether intervention will occur in a particular instance, and their troops (particularly in the case of the UN) have committed notable violations of jus in bello. These problems also apply, of course, to the hybrid arrangements whose troops draw on these organisations. Overall, the problem is that not only is there often an unwillingness to act amongst the current agents of humanitarian intervention, but that, despite some improvements recently, no existing agent is fully legitimate according to the Moderate Instrumentalist Approach. For this reason, the agents and mechanisms of intervention need to be improved so that the international community can legitimately tackle serious humanitarian crises on a more frequent basis. There are several potential options to improve the agents and mechanisms of intervention. To start with, criteria for humanitarian intervention could be codified in international law.24 This could potentially have the benefits of, first, encouraging more humanitarian interventions by having an additional legal right to intervene and, second, of ensuring that those agents that do intervene meet the requirements of the Moderate Instrumentalist Approach. The problem with this proposal, however, is that strict criteria could potentially rule out certain agents because they do poorly on one potential quality (for example, internal representativeness), but whose intervention would nevertheless be, all things considered, morally acceptable on the Moderate Instrumentalist Approach. As such, it could limit the number of potential interveners from which to choose, rather than tackling the problem of the current lack of willingness to intervene. Achieving agreement on the criteria is also likely to be difficult, with the particular criteria agreed to by states (some of which are highly sceptical about intervention) being likely to differ from those emphasised by the Moderate Instrumentalist Approach. The danger is that

Ass i g n i ng H u m ani taria n Interventio n a nd Rto P / 181

a particularly restrictive account of the criteria would develop, based on the lowest common denominator of agreement amongst states, which would greatly limit the opportunities for humanitarian intervention. These worries are particularly relevant if the criteria were to apply to UN Security Council-authorised interventions. Even if the criteria were meant to limit the use of the veto (so that interventions that meet the criteria were not to be vetoed), they may decrease the Council’s authorisation of peace operations. This is because they could be used by the Council to avoid responding strongly in cases when there exists only a small doubt that the agent being authorised would meet the (potentially highly restrictive) set of criteria. In short, criteria may present the Council with another reason for inaction. Notwithstanding, as an addition to the current legal situation where there is no legal right of intervention without Council authorisation – that is, if they were not to apply to the Council – such criteria might have some merit. They would allow agents a legal right to undertake humanitarian intervention (if they meet the requisite criteria) in response to situations like Kosovo in 1999, where the Council is stymied. Although the criteria that would be agreed to may be restrictive, this would still be an improvement on the current status quo that often leads to nonaction when the Council is deadlocked. Concerns over the abuse of such an additional right are frequently voiced, but if there were such a right, undertaking abusive intervention would still be difficult. States (or other agents) that would want to claim such a right would have to present a persuasive account of how they meet all of the (potentially restrictive) criteria. This is likely to be very difficult for abusive claimants. States that want to intervene in other states for non-humanitarian reasons would most likely find it easier to seek legal justification elsewhere, such as in the right of self-defence. Criteria for unauthorised humanitarian intervention would, of course, fail to tackle capacity-based problems facing the current agents of intervention. One option in this regard would be to extend the current system of UN standby arrangements so that more resources and troops would be readily available for when the UN is likely to meet them. This would potentially improve the ability of the UN to undertake peace operations rapidly, in the early stages of a crisis, rather than the current situation where it has to face notable delays. It seems obvious that such improvements would be desirable. However, they would be limited in merit, since they would not tackle the fundamental problems surrounding the UN’s reliance on ad hoc contributions of troops from states. The UN would still most likely face problems of integration and training, and even with an improved standby system there would still most likely be delays in force deployment because of the need for troop-contributing countries to agree to contribute their forces. A UN standing army would begin to address many of these problems. Its troops could train together and be closely integrated, and it could be ready to deploy extremely rapidly whenever required without having to negotiate the agreement of specific troop-contributing countries. Indeed, there have been several proposals for a UN standing army of around 10,000 elite troops (building on the model of

J a m es Patti s on / 182

the French Foreign Legion) from Trygvie Lie to Brian Urquhart, as well as more recent proposals for a UN Emergency Peace Service, largely for these reasons.25 Yet the problem that most of these proposals face is that the force proposed would be extremely limited in what it could do, given its size. It would be able to respond only to one humanitarian crisis at a time, have to be replaced shortly after intervening by ad hoc troops (that may not be forthcoming), and its troops would need to be rotated. That said, a UN standing army would be the most desirable solution to tackling the problems faced by the current agents and mechanisms of humanitarian intervention, but it would have to be much larger to be of significant utility.26 As the size and power of such a force would increase, so would the worries over of its democratic controls, given that it would be potentially in the hands of unelected UN officials. For this reason (and for others beyond the issue of humanitarian intervention), we should develop cosmopolitan democratic institutions alongside such a force which would be in control of its supervision and authorisation.27 This is, of course, a very long way off. In the short to medium term, we need to increase the capabilities of regional organisations, such as the AU, building on initiatives such as the African Standby Force and EU battlegroups, and develop stronger partnerships between agents (that is, the further hybridisation of peace operations). Regional organisations face a number of capacity-related and institutional difficulties, and they could only ever be one part of the solution. But it is generally held that they possess a greater willingness to intervene, stemming from their geographical proximity to the humanitarian crisis. When combined with increased capacity, they perhaps offer the best hope of improving the international community’s capacity to intervene legitimately.

Notes 1 This chapter is largely a précis of some of the central arguments of James Pattison’s recent book, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford UP, Oxford 2010). 2 D Miller, ‘The Responsibility to Protect Human Rights’ Working Paper Series SJ006, Centre for the Study of Social Justice, University of Oxford (May 2007). 3 The ruling by the International Court of Justice (ICJ) in the Genocide case contains some attribution of responsibilities to tackle genocide, highlighting the ‘capacity to influence effectively the action of persons likely to commit, or already committing, genocide’, which partly depends on geographical proximity and political ties. But this assignment of responsibilities is rudimentary and fails to reflect adequately the importance of several of the moral concerns considered below. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 2 (Genocide case) 154. 4 That said, the debates surrounding the NATO-led action in Libya, which occurred after writing this piece, indicate that most RtoP advocates do view this as an RtoP case. I

Ass i g n i ng H u m ani taria n Interventio n a nd Rto P / 183

consider the normative issues surrounding this intervention in J Pattison ‘The Ethics of Intervention in Libya’ (forthcoming) 25 Eth & Intl Aff 3. 5 I define humanitarian intervention as ‘[f ]orcible military action by an external agent in the relevant political community with the predominant purpose of preventing, reducing, or halting an ongoing or impending grievous suffering or loss of life’. See Pattison (n 1) 28. On this definition, humanitarian intervention does not have to be in contravention of the target state’s consent, but it has to be against someone’s wishes, such as militias or warlords. This, I think, is the most conceptually coherent definition that also reflects how the term has been employed in previous cases. 6 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) accessed 13 April 2011 (ICISS Report). 7 UNGA ‘2005 World Summit Outcome’ (2005) UN Doc A/60/L.1 (WSO Document) para 138. 8 Report of the Secretary-General, ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677. 9 Another example is the Secretary-General’s Special Advisor for RtoP, Edward Luck, who has recently noted that ‘military interventions for humanitarian purposes’ can be part of the ‘timely and decisive’ response. E Luck, ‘The Responsibility to Protect: Growing Pains or Early Promise?’ (2010) 24 Eth & Intl Aff 4, 349-65, 361. 10 See, for instance, R Jackson, ‘War Perils and the Responsibility to Protect’ (2010) 2 GRtoP 3, 315-19. 11 See, for instance, F Tesón, Humanitarian Intervention: An Inquiry into Law and Morality (3rd edn Transnational Publishers, New York 2005). 12 There is some debate whether military action could be authorised by two other institutions – regional organisations (notably the AU) or the General Assembly (under the Uniting for Peace procedure) – and still be part of RtoP. 13 Indeed, it is worth noting more generally that on most reasonable definitions of the term, ‘humanitarian intervention’ can be authorised by the UN Security Council, such as the US-led mission in Somalia in 1992, the Australian-led mission in East Timor in 1999, MONUC, the UN peace operation in the Democratic Republic of Congo, and more recently, Operation Unified Protector, the NATO-led operation in Libya. This point is often overlooked by those who interpret ‘humanitarian intervention’ as necessarily carried out by states without the authorisation of the UN Security Council (as in the NATO intervention in Kosovo in 1999). 14 See Pattison (n 1) 15-20 and J Pattison, ‘The Rights and Duties of Humanitarian Intervention: A Reply to Two Critics’ (2011) Global Discourse 2 I. 15 This point is typically overlooked in the literature on the duty to intervene. See, for instance, C Bagnoli, ‘Humanitarian Intervention as a Perfect Duty: A Kantian Argument’ in T Nardin and M S Williams (eds), NOMOS XLVII: Humanitarian Intervention (New York UP, New York 2006) 117-40; B Gomes, ‘The Duty to Propose Violence: Humanitarian Intervention as a Question for Political Philosophy’ (2011) 37 Rev Intl Stud 3, 1045-67. 16 See for instance, J Lango, ‘Is Armed Humanitarian Intervention to Stop Mass Killing Morally Obligatory?’ (2001) 15 PAQ 3, 173-91. 17 Pattison (n 1) 69-173. 18 Ibid 74-6. 19 Ibid 76-7. 20 Ibid 77-8.

J a m es Patti s on / 184

21 For further discussion, see ibid chapters 2 and 6. 22 For more on hybrid arrangements, see A Bellamy and P Williams, ‘The West and Contemporary Peace Operations’ (2009) 46 JPR 1, 39-57, 47-9; T Piiparinen, ‘The Lessons of Darfur for the Future of Humanitarian Intervention’ (2007) 13 Glob Gov 3, 365-90. 23 J Pattison, ‘Outsourcing the Responsibility to Protect: Humanitarian Intervention and Private Military and Security Companies’ (2010) 2 Intl Theory 1, 1-31. 24 For further discussion of this option, see A Bellamy, ‘The Responsibility to Protect and the Problem of Military Intervention’ (2008) 84 Intl Aff 4, 615-39; Danish Institute of International Affairs, ‘Humanitarian Intervention. Legal and Political Aspects’ (Copenhagen 1999); Pattison (n 1) 219-27; J Stromseth, ‘Rethinking Humanitarian Intervention: The Case for Incremental Change’ in J Holzgrefe and R Keohane (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge UP, Cambridge 2003) 232-72; N Wheeler, ‘Legitimating Humanitarian Intervention: Principles and Procedures’ (2001) 2 MJIL 2, 550-68. 25 See R Johansen (ed), A United Nations Emergency Peace Service: To Prevent Genocide and Crimes Against Humanity (World Federalist Movement, New York 2006); S KinlochPichat, A UN ‘Legion’: Between Utopia and Reality (Frank Cass, London 2004). 26 J Pattison, ‘Humanitarian Intervention and a Cosmopolitan UN Force’ (2008) 4 JIPT 1, 126-45; Pattison (n 1) 229-36. 27 See D Archibugi, ‘Cosmopolitan Democracy and its Critics: A Review’ (2004) 10 EJIR 3, 437-73; D Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Polity Press, Cambridge 1995).

13

The Responsibility to Protect and Humanitarian Intervention Jennifer M. Welsh

1 Introduction This chapter questions the view, articulated by both Edward Luck and Nicholas Michel, that the principle of the ‘responsibility to protect’ (RtoP) – as authoritatively interpreted by states at the 2005 United Nations (UN) Summit – no longer includes humanitarian intervention. In the very strictest sense, of course, this view is correct: if one defines humanitarian intervention narrowly as the unilateral1 use of military force within the jurisdiction of a sovereign state, without that state’s consent, in order to achieve humanitarian objectives, then Articles 138 and 139 of the Summit Outcome Document (WSO Document) seem to preclude its practice. Member States have explicitly allocated the responsibility to protect to the UN, and more specifically the Security Council; any military action necessitated by that responsibility would therefore be authorised by the Council. But as I have argued elsewhere,2 this narrow definition precludes us from considering a number of instances of intervention with humanitarian purposes, where consent has been more ambiguous (or in some cases coerced). It would also exclude the March 2011 NATO-led action against Libya, which was authorised by Security Council Resolution 1973 – a case that is likely to be highly significant for the evolution of the principle of RtoP. Moreover, suggesting that RtoP no longer encompasses humanitarian intervention is to concede too much to those members of international society that have opposed the principle’s implementation. As the Libyan case reminds us, though measures short of force are always to be preferred, coercion must remain part of the range of legitimate tools used to exercise the international community’s responsibility to protect. This is particularly so given the emphasis of Articles 138 and 139 on the prevention and response to international crimes. In the sections that follow, I will discuss the positive role that the concept of RtoP has played in changing the nature of the debate on the international community’s rights and responsibilities in addressing the threat or commission of mass

J e nni f er M . W els h / 186

atrocity crimes. Nonetheless, I will also suggest that the UN Secretary-General’s 2009 report gives insufficient attention to how international actors can and should act upon their responsibilities under so-called pillar three.3 More specifically, it does not help to clarify how the responsibilities for the collective use of force are to be distributed.

2

How ‘Responsibility’ Changes the Debate

The first section of the Secretary-General’s report highlights two broad approaches to understanding how the international community can respond to the commission of mass atrocities. The first, the ‘humanitarian intervention approach’, poses a stark (and, in his view, false) choice between either standing by in the face of mounting civilian deaths or deploying coercive military force to protect the vulnerable and threatened populations. The second, the ‘sovereignty as responsibility’ approach, opens up a more legitimate and wider set of tools for thinking about how to both prevent and respond to the commission of mass atrocities.4 Debates about the legitimacy of military action by outside actors to address developments within the jurisdiction of a sovereign state have been an integral part of the evolution of the international system. In the nineteenth century, the political practice of ‘humanitarian intervention’ developed, whereby states (predominantly in Europe) intervened in the internal affairs of others either to rescue their own citizens from harm or to protect religious and national minorities who were subject to persecution. Enshrining this practice as a right in international law, however, was strongly opposed. By the time of the signing of the UN Charter, the overwhelming objective of statesmen and lawyers was to limit the legitimate pretexts for engaging in war to cases of self-defence or collective security. Therefore, the Charter itself remains silent on the question of whether states can use military force to address a humanitarian crisis occurring within the sovereign jurisdiction of another. A series of developments during the latter part of the twentieth century, however, helped to create a more permissive context for intervention by outside actors when humanitarian crises shocked the international conscience. These include, inter alia: the rise of international human rights instruments; the increased vulnerability of civilians in the context of civil conflict; the global and instantaneous access to information which can serve to heighten popular awareness of human suffering; and the greater willingness of the UN Security Council to define instances where such atrocities are occurring as ‘threats to international peace and security’. Two cases in particular from the 1990s served as the impetus for a new debate on the legitimacy of intervention for humanitarian purposes. The late and half-hearted action by the international community during the genocide in Rwanda in 1994 led to much soul-searching on the part of international organisations and individual states about how to protect civilians in the future. Yet, the 1999 NATO bombing of Serbia, designed to prevent ethnic cleansing in Kosovo, occurred without Secu-

Rt o P an d H u m an i taria n Intervent io n / 187

rity Council authorisation and created damaging divisions within the international community about the conditions under which force should be used. The objective of former UN Secretary-General Kofi Annan was to avoid the twin failures of Rwanda and Kosovo, and to find a new consensus within the international community over the legitimacy of action to protect civilians from mass atrocities. The Canadian-sponsored International Commission on Intervention and State Sovereignty (ICISS) took up Annan’s challenge in 2001, and set out to determine when coercive action against another state for humanitarian purposes could be legitimate. The ICISS’s main contribution to the debate was primarily conceptual: in changing the language from a ‘right of intervention’ (which focused on the coercive prerogatives of interveners) to a ‘responsibility to protect’ (which focused more on the individuals subject to harm). It is important to note, however, that the move toward this more conditional reading of sovereignty had been developed almost a decade earlier in the work of Kofi Annan’s former Special Representative on Internally Displaced Persons, Francis M. Deng (who now acts as Ban Ki-moon’s Special Representative on the Prevention of Genocide). Deng was among the first to use the phrase ‘sovereignty as responsibility’, developing it into a doctrine which stipulates that when states cannot provide the ‘life-supporting protection and assistance for their citizens’, they must request and accept outside offers of aid.5 In short, if states shirk their obligations and obstruct access to individuals, he argues, there arises an international responsibility to respond. Deng’s thinking on sovereignty was influenced by two major experiences. The first was his participation in a Brookings Institute initiative conducted in the late 1980s and early 1990s on conflict management in Africa. The central concern driving the project was the effect that the end of the Cold War might have on the African continent, particularly if the two superpowers moved away from their dual roles as the financers of proxy wars and the guardians of regional stability. The fear of Deng and others was that in the wake of the withdrawal of the United States and Soviet Union, Africa would be further marginalised within the international political and economic system, and that its internal conflicts and high levels of underdevelopment would create increasingly perilous conditions for civilians. For Deng, the solution to this danger lay in a new generation of African leaders, who could take on collective responsibility for maintaining stability and responding to humanitarian disasters within a new normative framework that involved partnership with actors from the international community.6 This perspective was informed by his experience with the African Leadership Forum (ALF), a non-governmental organisation created by former Nigerian leader Olusegun Obasanjo, which spearheaded an attempt to develop a ‘Helsinki Process’ for Africa in the early 1990s. At the core of the so-called Kampala process was a bold statement of interdependence: both among African states (in terms of their security) and between the processes of development and stabilisation. Given the dependence of each state on the security and stability of others in the region, the document argued, Africa needed a collec-

J e nni f er M . W els h / 188

tive solution to its challenges. The Kampala process, Deng believed, had done two things: it had broken ‘the protective wall of sovereignty’, and ‘installed instead a program of responsibility sovereignty’ that linked states’ legitimacy to their conduct of good governance.7 Second, by stressing the cooperative nature of African security, Kampala had established the need for all states in the region to assist with internal problems and conflict: ‘a state has a responsibility to help others care for their populations or even to protect others’ populations if their state does not exercise its own responsibility’.8 It was this second implication that Deng advanced during his other formative experience: his tenure as the Secretary-General’s Special Representative on Internally Displaced Persons from 1994-2004. In this role, he had first-hand experience of the individuals who were placed in the ‘moral vacuum left by the state’s failure, deliberate or imposed, to fulfill its normal responsibilities’.9 International humanitarian organisations had stepped into the gap, providing protection and assistance. In so doing, Deng argued, these representatives of the international community had ‘inevitably contributed to an erosion of traditional concepts of sovereignty’ in order to ensure human rights according to universal standards. The states in question then responded with efforts to reassert their sovereign control, leading to a ‘tug-of-war’ between national governments and international organisations.10 For Deng, the way out of this apparent tug-of-war between human rights and sovereignty was the articulation of a new normative framework for responsibility and accountability in international society. In order to gain the right to speak to states about crises involving internally displaced people, he found himself avoiding ‘human rights talk’ – especially the notion that such rights were somehow a trump over sovereignty – and framing his appeals in the language of sovereignty. In his words: ‘I needed an argument that would open doors, not close them’.11 His starting point was an acknowledgement that the primary locus of responsibility for protecting and assisting internally-displaced people remained the host government – an idea that would later come to sit at the heart of the ‘responsibility to protect’.12 From this relatively uncontroversial claim (which most legitimate states accepted), Deng moved on to argue that the best way for vulnerable or weak states to fulfil these responsibilities was to invite and welcome international assistance, to complement national efforts. This was in fact the best way for states to preserve and enhance their sovereignty, he insisted, since it would avoid more coercive action from outside actors: ‘Troubled states faced a choice: work with international organisations and other interested outsiders to realise their sovereign responsibilities or obstruct international efforts and forfeit their sovereignty’.13 It follows from Deng’s account that international actions taken to protect individuals from humanitarian catastrophe – whether invited by the state in question or imposed as a measure of last resort – are not necessarily violations of sovereignty. Instead, they become a ‘normal’ part of the framework for responsibility and accountability in international society, and thereby should be seen as a complement to (and potential strengthening of ) national sovereignty.

Rt o P an d H u m an i taria n Intervent io n / 189

3

Lingering Ambiguities Surrounding RtoP

It is clear from the above that ICISS drew heavily upon Deng’s framework and the broader conception of sovereignty that motivated his work. The Commission shared the view that contemporary sovereignty is no longer merely about undisputed control over territory, but rather a conditional right dependent upon a state’s respect for a minimum standard of human rights. Similarly, Commissioners reasoned that if sovereignty and responsibility were indeed intertwined, then intervention would be permissible – and an integral part of sovereignty – if aimed at protecting civilians from mass violations of their human rights. As Ramesh Thakur put it: ‘The goal of intervention for human protection purposes is not to wage war on a state in order to destroy it and eliminate its statehood but to protect victims of atrocities inside the state, to embed the protection in reconstituted institutions after the intervention, and then to withdraw all foreign troops’.14 In spite of these concerted efforts to create a more acceptable language to talk about sovereignty, the ICISS Report generated considerable normative controversy. Indeed, it is worth noting that as a term, ‘responsibility’ is no less ethically charged than ‘humanitarian’ – especially within contemporary international society. During the negotiations leading up to the UN Summit in 2005, some developing countries voiced opposition to the phrase ‘responsibility to protect’ because of its allegedly neo-colonial connotations. Even if the promoters of RtoP emphasised the protection of civilians rather than the rights of interveners, scepticism voiced by nonWestern states (particularly in the General Assembly) indicated a lingering fear that sovereign equality would become a chimera if the principle of non-intervention was not vigorously upheld. While these objections are powerful, and still have some resonance in international society today, they do not necessarily offer a ‘knock-out’ blow to the conceptual framework around RtoP. Despite the past motives of some Western interventions, there is nothing to say that the actions envisaged by the ‘new’ RtoP would play out in exactly the same way. Indeed, if the responsibility is truly meant to be international, then there is no reason why developing countries (who are already among the largest contributors to UN peacekeeping missions) could not be part of the operationalisation of the principle. In this regard, it is interesting to note that a significant number of developing countries from Latin America and Africa joined the pro-RtoP coalition during negotiations over the WSO Document (including Argentina, Chile, Mexico, Peru, South Africa, Rwanda, Tanzania and Senegal), making it impossible to portray the debate within the UN as solely ‘North vs. South’.15 More recently, it was the request from the Arab League to establish a nofly zone to protect civilians in Libya that facilitated the passing of Security Council Resolution 1973. Nonetheless, the Commissioners did not elaborate sufficiently on the idea of RtoP to clarify how international responsibilities were to be allocated and fulfilled. In other words, it is not the ICISS invocation of ‘responsibility’ which is the heart

J e nni f er M . W els h / 190

of the problem, but rather the (incomplete) way in which the concept is developed. As James Pattison argues elsewhere in this volume, one of the outstanding issues is the ambiguity concerning who, precisely, in the international community bears the remedial responsibility to protect, when actions under pillars one and two fail. In the ICISS report, the appeal to the international community is a very general one, leaving us with an unallocated duty to protect.16 To have true remedial responsibility, as philosopher David Miller reminds us, is to have a particular duty to put the wrong right – to be designated to carry a responsibility that is not shared equally among all.17 While to date there is no systematic process for allocating the international responsibility to protect, the work of moral philosophers and the jurisprudence on the Genocide Convention have considered a series of principles which might be used: the geographical proximity of an agent to those in need of care or protection, the special capacities of a particular agent (such as expertise or strength), and the existence of historical or special ties between an agent and those in need of care or protection.18 Each of these principles has its drawbacks, making it impossible to establish a priori a general theory as to which should be applied in each case. Examining the third criterion, for example, one could argue that the intervening power is likely to have a particular agenda of its own (including partiality towards particular factions within the target state’s society) that would complicate its exercise of remedial responsibility. (This was the charge levelled at the French effort in Rwanda, Operation Turquoise.19) The same could be said of the principle of geographic proximity – a point that has also been made in arguments against regional collective security arrangements. Similarly, even if one’s primary concern is effectiveness – meaning that the bearer of remedial responsibility should be the agent that has the capacity to mount the most effective response20 – it is not clear in all cases whether local knowledge or Western capacity will translate into greater effectiveness. Moreover, a focus on current capacity neglects the question of how variations in capacity have arisen. To put it most starkly: is it morally acceptable for those who currently have the capacity to act to continue to bear the remedial responsibility, simply because others who might develop that capacity (through decisions to invest in their militaries or to increase foreign assistance budgets) are not doing so? A reliance on effectiveness, without some discussion of the distribution of costs, seems unsustainable as a strategy for allocating remedial responsibility. Those who cannot intervene today (for reasons of insufficient capacity) should at the very least exercise their moral duty in other ways (for example, by isolating the perpetrating state diplomatically, offering diplomatic support for action, or financing non-military assistance). But I would also argue that the responsibility to protect – if it is to be an international responsibility – also demands concrete steps to develop greater capacity for intervention and a commitment to contribute to the costs of military action. In one sense, the WSO Document answered the question of ‘who bears the responsibility to protect’ by embedding it firmly within the UN. But by tying RtoP

Rt o P an d H u m an i taria n Intervent io n / 191

explicitly to the Security Council, Article 139 does not provide any new legal obligations on the part of individual states, or groupings of states, to prevent or respond to mass atrocities. The existing mechanisms of collective security – which often involve unwieldy intergovernmental bargaining – will be used to designate human rights violations as threats to international peace and security and to recommend action. There is also no indication of what should transpire if there is failure by the Permanent Five in the UN Security Council to come to agreement on military action.21 Finally, it is worth noting that the Council’s role in authorising actions designed to fulfil international responsibilities cannot and should not be confused with the role of actually fulfilling such responsibilities. In order to do the latter, the Council would need to apply an accepted procedure for distributing responsibilities to particular states and agencies in international society as well as a formula for cost-sharing. Such a systematic approach does not yet figure in the Security Council’s working procedures – and as we know from the case of Darfur, its capacity for swift and purposive action is sometimes found wanting. None of this is to suggest that the UN Security Council should not play a leading role in efforts to operationalise the international community’s remedial responsibility to protect. As suggested earlier, both regional organisations and neighbouring states can face high stakes in efforts to address a humanitarian crisis and could easily be perceived by some of the parties in the target country as highly biased in their action (and potentially as actors seeking to enact a modern version of neocolonialism). In short, proximity cannot be the ultimate trump in terms of distributing responsibility. Nonetheless, if the international responsibility to protect is to be fulfilled by the UN system, more attention needs to be paid to the ways in which the Council can be made more transparent and accountable, and to establishing a chain of procedures both for distributing responsibilities to particular states and organisations and for sharing costs.

4

Timely Response under ‘Pillar Three’

So how does the Secretary-General’s report envisage the exercise of the international community’s remedial responsibility? The first point to note is that forceful measures are not limited to pillar three: the Secretary-General refers to the possibility of the preventive deployment of force (for example, as occurred in Macedonia during the crisis in the Balkans) and to the possibility that the international community might provide a state with assistance in dealing with armed, non-state actors.22 Second, as Edward Luck emphasises, the pillar three toolbox includes measures other than the use of force. It also includes mediation and pacific measures under Chapter VI of the Charter to respond to a state’s manifest failure to fulfil its responsibilities, as well as the use of Security Council investigations and factfinding missions. It is important to acknowledge that the latter are not merely delay

J e nni f er M . W els h / 192

tactics (as some have argued was the case in Darfur). In certain instances, such as East Timor in 1999, Security Council missions can play a catalysing role and facilitate subsequent intervention. Pillar three also discusses the use of diplomatic sanctions, a measure frequently used by the Council in the past. In implementing RtoP, however, this more traditional tool of statecraft is likely to assume a particular form – targeted at particular individuals who have either committed mass atrocity crimes, or who are about to do so. Resolution 1970, which imposed strict financial sanctions and travel bans on members of the Gaddafi regime, is a clear example of this more targeted approach. Overall, however, the report’s treatment of the use of force – particularly how it is to be organised – is much briefer than the more detailed discussion of noncoercive tools. There is no discussion, for example, of how the costs and burdens of military missions might be shared or how the mandates of these missions might be drafted and implemented to ensure the protection of civilians. The debate over the ‘real’ objective of the NATO-led mission in Libya in 2011, and the appropriateness of expanding the range of targets to include command and control structures and critical infrastructure, illustrates the dilemmas that can arise in using military force for humanitarian purposes. Finally, Ban Ki-moon’s report takes a very restrictive view of the legitimacy of the collective use of force. Legitimacy can be conferred only through Council authorisation (or, exceptionally, through the Uniting for Peace Resolution). Indeed, it is suggested that ‘the more robust the response, the higher the standard for authorisation’.23 There is no discussion of what might happen if the Council cannot agree, or if vetoes are exercised ‘irresponsibly’ – despite the Secretary-General’s plea for the Permanent Five to refrain from using their vetoes in RtoP situations. Such a position is perhaps unsurprising, given that the report is a UN document. But surely it is relevant to ask, as Ann Peters does elsewhere in this volume, about the ways in which the Security Council might be held accountable for failures to act in ‘conscience-shocking situations’. In light of the continuing opposition to the principle of RtoP after 2005, there was some justification for an implementation strategy focused on the less controversial aspects of the principle. But this strategy has also had its drawbacks, most notably a lack of attention to how the ‘hard edge’ of RtoP should be conceived and put into practice. The need for this kind of thinking is particularly acute, given the WSO Document’s focus on crimes (as opposed to ‘large scale loss of life’ in the ICISS report). Crimes, as opposed to parties in a conflict, have particular perpetrators; they also have victims. The actions required to change the incentives of the former, and the degree of vulnerability of the latter, move the UN, regional organisations and state diplomats out of a more comfortable zone of mediation and compromise – even if, as some would argue, this stance of impartiality has sometimes been an illusion – into a realm where one frequently has to ‘take sides’. Though this change in approach can be seen in earlier cases (most notably Bosnia and the Democratic

Rt o P an d H u m an i taria n Intervent io n / 193

Republic of Congo) the 2011 UN-mandated actions in Côte d’Ivoire and Libya demonstrate vividly the tensions that result when impartiality is relinquished. By focusing more on the substance of pillars one and two, the Secretary-General’s report provides very little guidance on how to address these challenges. Undoubtedly there is clearly a need to increase states’ capacities to protect their own populations, and to develop non-coercive tools that third parties can wisely employ to address the deep causes of mass atrocity crimes. But there is also an urgent need to elaborate the more targeted and coercive tools that the international community can employ as part of pillar three – whether those tools are being employed preventively (to avoid an imminent catastrophe) or as part of a response to large-scale atrocities which have already been committed.

5 Conclusion Despite the drawbacks noted above, there are two very promising elements of the Secretary-General’s report that are worth highlighting. The first is his call to states to work towards the development of a rapid-response military capacity to respond to mass atrocity crimes. This would be a progressive step towards making the currently unallocated international responsibility to protect more robust. The second notable element is the way in which Ban Ki-moon places a particular responsibility on the person who occupies his office. In a clear reference to the Rwanda case, the report states that the UN Secretariat bears a particular responsibility to tell the Security Council ‘what it needs to know, not what it wants to hear’.24 In voicing this commitment, the Secretary-General is shining a spotlight on his role in facilitating timely response by the Council to the threat or commission of mass atrocity crimes. This willingness to assume responsibility, which is all too rare in international politics, could make a material difference to whether individuals really are protected in the future.

Notes 1 Where ‘unilateral’ refers to actions that do not receive Security Council authorisation. 2 The definition for humanitarian intervention I prefer is ‘coercive interference in the internal affairs of a state, involving the use of armed force, with the purposes of addressing massive human rights violations or preventing widespread human suffering’. See J M Welsh (ed), Humanitarian Intervention and International Relations (Oxford UP, Oxford 2006) 3. 3 Pillar one, drawing on pre-existing legal obligations, is the responsibility of individual states to protect their own populations (whether nationals or not). Pillar two calls on the international community (acting through the UN system and partner organisations) to help states fulfil these responsibilities. Pillar three specifies the residual responsibility of UN Member States to act, if the state in question fails to protect its population. See

J e nni f er M . W els h / 194

Report of the Secretary-General, ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677 (Implementing the Responsibility to Protect Report). 4 Implementing the Responsibility to Protect Report (n 3) para 7. 5 F M Deng, Protecting the Dispossessed (Brookings Institution Press, Washington DC 1993); R Cohen and F M Deng, Masses in Flight: The Global Crisis of Internal Displacement (Brookings Institution Press, Washington DC 1998). 6 Author’s interview with Francis Deng, Special Adviser on the Prevention of Genocide, New York, 16 September 2008. 7 F M Deng and I W Zartman, A Strategic Vision for Africa: The Kampala Movement (Brookings Institution Press, Washington DC 2002) 139, 144 and 147: Deng and Zartman extract from the Kampala Document a set of measures for responsible governance. 8 Ibid 140. 9 F M Deng et al, Sovereignty as Responsibility: Conflict Management in Africa (Brookings Institution Press, Washington DC 1996) xii. 10 Ibid xiii. 11 Author’s interview with Francis Deng (n 6). 12 A Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities (Polity Press, Cambridge 2009) ch one. 13 Deng, Sovereignty as Responsibility (n 9) 28. 14 R Thakur, ‘Freedom from Fear’, in P Heinbecker and P Goff (eds), Irrelevant or Indispensable? The United Nations in the 21st Century (Wilfred Laurier Press, Waterloo 2005) 115-30 and 123. 15 In the end, neither the Non-aligned Movement nor the Africa Group within the General Assembly was able to agree on a common statement on the responsibility to protect prior to the 2005 Summit. 16 K C Tan, ‘The Duty to Protect’, in T Nardin and M Williams (eds), Humanitarian Intervention NOMOS ILVII (New York UP, 2006) 95, 84-116. 17 D Miller, ‘The Responsibility to Protect Human Rights’, Paper presented to the International Symposium on Justice, Legitimacy, and Public International Law, University of Bern, 15-17 December 2006. 18 D Miller, ‘Distributing Responsibilities’ (2001) 9(4) JOPP 453; Tan (n 16); J Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford UP, Oxford 2010); See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 2 (Genocide case) para 430. 19 J Mayall, ‘Humanitarian Intervention and International Society: Lessons from Africa’, in Welsh, Humanitarian Intervention and International Relations (Oxford UP, Oxford 2006) 137. 20 This is James Pattison’s position. See Pattison (n 18). 21 Constitutive Act of the African Union (adopted 11 July 2000, entered into force 26 May 2001) OAU Doc CAB/LEG/23.15: In this respect, it is worth contrasting the WSO Document with the other main attempt to enshrine a right or responsibility to intervene for humanitarian purposes. In its founding document, the African Union both qualifies the principle of non-intervention and asserts ‘the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity’. Unlike the WSO Document, this Article (4h) does not explicitly mention the need for Security Council authorisation. The Act entered into force on May 26, 2001, thereby replacing the Charter of the older Organisation of African Unity (OAU).

Rt o P an d H u m an i taria n Intervent io n / 195

22 Implementing the Responsibility to Protect Report (n 3) 29, 40 and 41. 23 Ibid para 50. 24 Ibid para 61.

Part IV International Organisations and the Responsibility to Protect

14

The Responsibility to Protect and the Permanent Five The Obligation to Give Reasons for a Veto Anne Peters

1 Introduction The objective of this chapter is to spell out the legal consequences of ‘responsibility to protect’ (RtoP) for the Security Council and its members.1 The chapter is a thought experiment, because the binding legal force of RtoP is not settled. My argument is that, once RtoP is accepted as a full-fledged legal principle, the Security Council (and its members) would be under a legal obligation to authorise and take sufficiently robust action in RtoP situations. The chapter then discusses the problems engendered by the acceptance of such a material obligation and instead suggests a procedural obligation to justify inaction.

2

Content of RtoP

The General Assembly’s World Summit Outcome Document (WSO Document) of 2005 defined RtoP in paragraph 138 for the individual state and in paragraph 139 for the international community.2 The initially broad and fuzzy scope of RtoP, as suggested in the 2001 Report of the International Commission on Intervention and State Sovereignty (ICISS)3, has been narrowed and more precisely circumscribed in state practice. It is now agreed that RtoP relates (only) to the core crimes as defined in Articles 6-8 of the International Criminal Court (ICC) Statute (genocide, war crimes, and crimes against humanity including ethnic cleansing). It is also clear that responsibility first of all rests on the territorial state. Finally and most importantly, states have accepted the residual responsibility of the international community: if the territorial state is unwilling or unable to grant protection, it is for the international community to step in.

Anne Pe ter s / 200

3

The Security Council as One Bearer of RtoP

3.1 Security Council not Legibus Absolutus

If RtoP is a legal (or at least nascent legal) principle, then the Security Council’s duty to take sufficiently robust action in an RtoP situation is not only a moral duty, but a legal one. The premise of any legal obligation on the side of the Council to act is that this body is not a purely political organ acting in a law-free zone, but subject to legal limits. In contrast, the traditional reading of the United Nations (UN) Charter was that the Security Council was the quintessential political organ of the organisation, and had full powers without international legal limits. This traditional view was defensible with the observation that pernicious consequences need not be feared. The danger of excessive or even abusive UN interventionism seemed nil, because in the real world, the permanent members’ antagonist interests and their right to veto prevented such interventions. However, in a constitutionalising international system, the traditional view of Security Council action in a basically law-free realm is no longer tenable. The rule of law also governs decisions of the Security Council. The idea of legal limits to Security Council action was advanced by the International Court of Justice (ICJ) as early as 1948 in the Advisory Opinion on the admission of new members to the UN.4 The view that the Security Council is ‘not legibus absolutus’ has been forcefully confirmed in the International Criminal Tribunal for the former Yugoslavia’s (ICTY) Tadic-decision.5 Because the UN enjoys international legal personality, it is itself bound by general customary international law and by the treaty obligations it incurs. The Security Council, as the organisation’s most powerful organ, cannot be less subjected to legal obligations than the organisation itself, although technically only the organisation itself (being the international legal person) is the duty-bearer. The Security Council is bound at least by the ‘Purposes and Principles’ of the Charter,6 which include customary human rights law and the right to selfdetermination.7 These rights are typically at risk in an RtoP situation. To conclude, the Security Council under current international law enjoys discretion, but this discretion is not unfettered.8 Discretion, as a legal and even constitutional concept, is per definitionem subject to some outer limits. Discretion is – in a way – the opposite of arbitrariness.

3.2 Legal Limits on Inaction

The next step in the argument is that legal limits do not only apply to Security Council action, but also to its inaction. There is no reason to treat an explicit or implicit Council decision not to authorise robust action fundamentally differently from its decision to authorise a coercive measure. Both types of decisions cannot be clearly distinguished. Every decision to act is at the same time a decision not to act in a different manner, and vice versa.

Rt o P an d th e Per m anen t Five / 201

The possibility of legal responsibility for inaction, omissions or passivity is well established in all criminal legal systems,9 and also in tort law. Most importantly, it fits well into the human rights framework which, under all international instruments, gives rise to positive governmental obligations to protect human rights against interference by private actors. Governmental passivity is here apt to trigger state responsibility for the state’s lack of due diligence to prevent the violation or to respond to it with legal, political and administrative means, as required by the human rights conventions.10 Once it is accepted that the UN is bound by international human rights, parallel to states, the principles concerning protection developed for states can be transferred to the UN, acting through the Security Council. The need to avoid imposing a rigid standard and the need to respect that public authorities must make (political) choices in terms of priorities and resources arise both for governments and for the Security Council.

3.3 Legal Limits of Discretion

Under the rule of law, the Security Council’s manoeuvring space (in legal terms, both its marge d’appréciation and its discretion) is limited on three different levels. The first level is the interpretation of the relatively imprecise notion of a ‘threat to the peace’ in Article 39 of the UN Charter, and its application to the facts. Since 1990, that notion has been continuously extended through Council practice. In that regard, it could be asked whether the Security Council is right in qualifying, for example, a natural catastrophe or terrorism as a ‘threat’. With regard to RtoP, the inverse question arises, namely whether the Council is allowed not to call a situation a threat to the peace. In my view, just as there are limits to expanding the meaning of a legal term, there are also limits to narrowing it unduly. An ongoing genocide, for instance, must be qualified a threat to the peace by the Security Council, and to refuse to do so would be an illegal act by the UN and by the Council members. Once the precondition, namely the existence of a threat to the peace, has been established, the next question concerns the consequences. Also on this level, the Security Council’s discretion is limited. It is limited in deciding whether to take action at all, and which type of action. This means that the choice of means is not free. In the ultimate analysis, this could lead to a situation in which the only conceivable lawful exercise of discretion would be to authorise coercive military measures. Non-intervention would then trigger the international responsibility of the UN.11 However, the idea of the legal responsibility of the UN itself for failing to act in the face of genocide might indeed be, as one critic put it, ‘absurdly premature and not likely to be affirmed by state practice’.12 The secondary obligations of the UN (the international responsibility of the organisation) will therefore not be analysed further in this chapter.

Anne Pe ter s / 202

4

States as Bearers of RtoP

The obligation to react in an RtoP situation does not only fall on the Security Council but on all states. Although the Security Council has the ‘primary responsibility’ to safeguard international peace and security, it is not its exclusive responsibility. The RtoP is the subsidiary responsibility of all states, including the members of the Security Council. What exactly is owed by bystanders in an RtoP situation depends on parameters such as the kind and extent of harm occurring, the states’ relationship with the abuser, and the bystander state’s capacity to influence effectively the action of persons likely to commit or already committing one of the core crimes. That capacity, in turn, depends on the geographical distance of the state concerned, on the strength of the political and other links between the authorities of that state and the main actors in the events, on the information at the disposal of the state and also on legal criteria, because every state may only act within the limits permitted by international law.13 In any case, the responsibility to protect is only an obligation of conduct, not of result, which must be performed in due diligence. The International Law Commission’s (ILC) Articles on Responsibility of States for Internationally Wrongful Acts (ASR) lay down the specific obligations of third states with a view to illegal acts committed by another state, but only in the event of a serious breach of a peremptory norm of international law.14 These rules are applicable to RtoP situations, because the prohibition of genocide and respect for the fundamental guarantees of international humanitarian law are ius cogens. Under Article 41(1) of the ASR, ‘states shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40’. This excludes the resort to military force in violation of Article 2(4) of the UN Charter.15 Under Article 41(2) ASR, third states must not ‘render aid or assistance’ in maintaining that situation. The parallel provision is Article 41(1) of the Draft Articles on the Responsibility of International Organizations (DARIO): ‘States and international organisations shall cooperate’. The technical scope of this draft provision relates only to situations where an international organisation has committed a serious breach of a peremptory norm. This rule could be triggered were it found that the UN had committed such a breach through its inaction. These obligations to cooperate to bring to an end the RtoP situation and to desist from aiding the perpetrator are in doctrinal terms primary, not secondary, obligations. Although these duties are triggered by an illegal act, they are incumbent on states that did not commit that illegal act. The ensuing question then is whether non-cooperation would itself be illegal and trigger state responsibility (this will be discussed in part 6).

Rt o P an d th e Per m anen t Five / 203

5

Security Council Member States as Bearers of RtoP

5.1 Specific Responsibility of Council Members due to Triplement Fonctionnel

With regard to the members of the Security Council, the obligation to cooperate in bringing to an end the commission of core crimes takes the form of an obligation to vote positively on a resolution authorising a robust intervention, if this is the only means to bring an end to RtoP crimes and violations. This follows, besides from Article 41(1) of the ASR, from the Council members’ obligation to fulfil in good faith the obligations assumed by them in accordance with the UN Charter (Article 2(2) of the UN Charter and Article 26 of the Vienna Convention on the Law of Treaties (VCLT)). When participating in deliberations and votes in the Council, the members of that body do not only act as representatives of their states, but also as an intrinsic part of a collective organ of an international organisation. Moreover, because the Security Council is not a plenary organ, but an organ with restricted membership, those members do not only stand in a special legal relationship with the organisation, the UN, but also in a special legal relationship with the remaining members of the organisation who are not represented in the Security Council. Members of the Security Council act as delegates of all other UN members, and as trustees of the international community.16 Due to this triplement fonctionnel,17 their voting behaviour is subject to legal limits. Their position as trustees prohibits them from handling their participation rights in the collective body in an arbitrary fashion. As a minimum, the fiduciary obligation of the members of the Security Council brings with it an obligation to balance all relevant aspects. This means that the rule of law does not only prohibit arbitrary decisions by the Security Council as a whole, as stated above, but should also govern the Council members’ votes approving of or preventing arbitrary decisions.

5.2 Increased Responsibility of the P5

An obligation to vote positively is incumbent on all members of the Council. However, the permanent members are in a legally different position from the non-permanent ones, because each of them can actually hinder a decision alone, all by itself, through the veto. This privilege of the ‘permanent five’ (P5) within the Security Council is in a constitutionalised order only justifiable with a view to those members’ special military and economic capabilities. The veto power is thus intrinsically correlated with a special responsibility. It is therefore submitted that the hard legal obligation to protect populations threatened by RtoP crimes especially falls on the permanent members of the Security Council.18 The ICISS had already suggested that when action is needed to stop or avert a significant humanitarian crisis, and when a permanent member of the Security Council does not claim its vital interests to be involved, it should not use the veto

Anne Pe ter s / 204

to obstruct the passage of what would otherwise be a majority resolution.19 The High-Level Panel Report of 2004 had asked ‘the permanent members, in their individual capacities, to pledge themselves to refrain from the use of the veto in cases of genocide and large-scale human rights abuses’.20 The Kosovo Report had also opined that ‘the current system allowing any Permanent UNSC member to paralyse UN action through the use of the veto must be adjusted in a judicious manner to deal effectively with cases of extreme humanitarian crisis’.21 Most recently, the Secretary-General evoked the P5’s special responsibility in his 2009 Report on the Implementation of RtoP.22

5.3 Exercise of the Veto in an RtoP Situation as Abus de Droit

It is controversial whether the concept of abuse is applicable to the veto. This controversy hinges on the legal qualification of the vote (and of the veto).23 The traditional reading of the UN Charter could hardly accommodate the notion of an illegal veto or of a ‘blockage’ of the Security Council, because exactly this blocking option was part of the deliberate institutional design of the organisation. Put differently, if the veto is not a ‘right’, but just a fact, which moreover, rather pertains to the political and not to the legal realm, it cannot be abused.24 From the qualification of the vote as a fact follows the notion that the vote itself, not having a proper legal value, is not in itself a source of any legal obligation. Therefore, of the vote itself, no legal obligation can arise.25 A related argument is that the exercise of the veto is an ‘acte de gouvernement’.26 Therefore, so the argument runs, the veto is not subject to legal standards, but remains purely in the political realm. ‘Legal’ or ‘illegal’ are then not relevant categories for a vote of a member state in an international organisation. In consequence, the veto can never be illegal. This line of reasoning likewise leads to the conclusion that the exercise of the veto cannot entail state responsibility. A state could, in that view, never be responsible for an illegal act adopted with its vote.27 However, this qualification of the veto is not fully persuasive. A state’s vote contributing to an organisation’s decision is, if not a legal act in itself, still an indispensable element of a legal act. Even if it is in itself not sufficient to create a legal act, it is a necessary condition. I submit that the veto is a procedural right, and can therefore be abused. The concept of abuse is closely linked to the principle of good faith, and implies a distinction between a right and the circumstances in which and how it is exercised.28 An abuse of right is given when a state does not behave illegally as such, but exercises rights that are incumbent on it under international law in an arbitrary manner or in a way which impedes the enjoyment of other international legal subjects of their own rights.29 So although it may be the right of a P5 member to exercise the veto, its exercise in a concrete situation may be abusive. The judges of the ICJ reminded all UN members that when participating in a political decision either in the Security Council or in the General Assembly the Member is ‘legally entitled to make its consent … dependent on any political con-

Rt o P an d th e Per m anen t Five / 205

sideration which seem to it to be relevant. In the exercise of this power the member is legally bound to have regard to the principle of good faith’.30 To conclude, it seems possible to qualify the exercise of the veto in an RtoP situation as an abus de droit.

6

Legal Consequences of a Permanent Member’s Veto in an RtoP Case

6.1 Irrelevance or Illegality of an Abusive Veto

The procedural rule of Article 27 paragraph 3 of the UN Charter which foresees unanimity of the P5 could be interpreted systemically, and take into account the responsibility to protect as a ‘relevant rule of international law’ in the sense of Article 31 paragraph 3 lit. c) of the VCLT. The systemic interpretation would lead to qualifying an abusive refusal to concur by a P5 member either as legally irrelevant or as a mere voluntary abstention, which according to established and general practice of the organisation, cannot prevent a positive decision of the Council.31 The legal irrelevance of an abusive veto also flows from the general principle that the UN may not invoke internal procedural problems to justify its breach of international law.32 A more radical proposition is that an abusive veto should be treated as an illegal act. This proposition has so far not been accepted in state practice, although it seems doctrinally consistent. The endorsement of RtoP as a legal principle fully thought through means that it is a legal obligation incumbent both on the UN (acting through the Security Council) and on states, especially on the permanent members of the Security Council. It follows that a permanent member’s exercise of the veto power in an RtoP case would be illegal, because it breaches the obligation to protect, conceived as a primary rule of international law.

6.2 Consequence: State Responsibility?

If the responsibility to protect is understood as a real legal obligation to protect, and not merely as an imperfect duty, then a failure to protect is an illegal act. The international legal responsibility of the members of the Security Council for the decision not to intervene could in doctrinal terms be either a responsibility for the UN’s conduct, attributed to the member state, or a distinct responsibility for the state’s own conduct. I will examine both propositions separately. 6.2.1 No Responsibility for the Inaction of the UN

The UN possesses legal personality33 and is not a mere ‘alter ego’ or agent of the member states. From the distinct personality flows the distinct responsibility of the organisation.34 This means that, as a rule, unlawful conduct of the UN, acting through the Security Council, cannot be attributed to its member states.35 In particular, the participation of a state in the creation or adoption of an act of an organisation does not in itself constitute a source of member state responsibility for the acts of the international organisation. The contrary view, as espoused, for example,

Anne Pe ter s / 206

by the Chinese delegation in the Sixth Committee of the UN General Assembly, finding that those member states that voted in favour of the decision in question or implemented the relevant decision, recommendation or authorisation should incur a corresponding international responsibility,36 would amount to denying both the legal and sociological autonomy of the UN. Therefore any responsibility of a member state, notably a P5 member, cannot be conceived as responsibility for the unlawful passivity of the organisation (acting through the Security Council) in an RtoP situation, which would be attributed to that member state. The organisational veil is thick and should not be pierced. 6.2.2 Responsibility for Own Conduct: Complicity

However, and this is the second constellation, international legal responsibility can be incurred by a permanent member for its own conduct. The doctrinal precondition for such a responsibility is that RtoP is an own responsibility (that is, an obligation) of the member state, and not only an obligation of the Security Council. As explained above (part 5), this is the case. Therefore a member of the Security Council can be held legally responsible for the exercise of its vote in the Council, especially for its veto. The permanent member’s responsibility can be construed as complicity in the unlawful inaction of the Security Council.37 The obligation not to facilitate the commission of an internationally wrongful act has been extended to the relationship between states and international organisations by the International Law Commission. Its 2009 draft articles prohibit complicity by states through aiding or assisting an international organisation in committing an illegal act, or for directing or controlling (Articles 57 and 58 of the DARIO, adopted in first reading 2009).38 As a rule, lawful participation in the international organisation’s decision-making process does not amount to aiding or assisting (or direction and control) in the sense of those prohibitions.39 But the ILC did not completely exclude ‘the possibility that aid or assistance could result from conduct taken by the State within the framework of the organisation’.40 It admitted that ‘[t]his could entail some difficulties in ascertaining whether aid or assistance has taken place in borderline cases. The factual context such as the size of membership and the nature of the involvement will probably be decisive’.41 The boundary line between lawful participation in the Security Council’s decision-making on the one hand and assistance (or control) amounting to an unlawful act seems to be overstepped in cases of an abuse of the veto as described above in part 5.3. The relationship between the respective member states’ international legal responsibility to the organisation’s legal responsibility would still have to be defined. Because the obligation to protect is an obligation erga omnes, third states could at least invoke the state responsibility, created by the Security Council members’ vote, under Article 48 lit. 1 b) of the ASR. The Security Council’s obligation to intervene, flowing from the obligation to protect as incumbent both on the UN and on the

Rt o P an d th e Per m anen t Five / 207

members of the Council, would thus be to some extent enforceable, but only by addressing the Council members individually.

7

The Obligation to Give Reasons for a Veto

The principle of RtoP has thus far not created a substantial obligation of the UN (acting through the Council) to intervene, and of the Security Council members to vote positively. However, RtoP has arguably already given rise to the procedural obligation of the members to justify a veto (namely, a refusal to concur by the nonpermanent members). This procedural obligation flows from the already existing legal presumption that the Council must take sufficiently robust action.42 In the current stage of development of international law, RtoP has reversed the onus of justification for voting behaviour of the members, especially the permanent members, of the Security Council. If we accept that the Security Council is operating under the rule of law, the obligation to state the reasons of the veto already exists as a matter of (unwritten) legal principle. The obligation to give reasons forces law- and decision-makers to base their acts on claims regarding the general interest rather than on selfish appeals. This has been called the ‘civilizing force of hypocrisy’.43 These reasons, even if they may be hypocritical, still have the consequence of generating better outcomes, because the ‘bad’ arguments are officially banned and therefore have much less power to influence the ultimate decision that has been reached. Against this background, the proposal, brought forward by a group of five small countries (the ‘S5’), to oblige the permanent members of the UN Security Council to explain their reasons for using the veto,44 and to which the Council reacted in 2006 with a 63-point declaration,45 would not only – if accepted – significantly strengthen the rule of law within the UN, but also improve the functioning of the Council. In the long run, an obligation to justify the veto would rule out those most blatant abuses that can simply not be rationalised.

8 Conclusion It has been demonstrated that, if RtoP were to be taken seriously as a legal principle, inaction or vetoing a proposal for a Security Council resolution authorising robust action would be an illegal act that triggers the responsibility of the UN and of the members of the Security Council. But such a hard and fast legal obligation has not yet been endorsed by governments and therefore does not form part of international law as it stands. One reason for this reluctance to accept RtoP as a complete legal obligation, incumbent on the Security Council, is that the Council is ultimately dependent on the political will of those states whose economic sanctions have bite and which

Anne Pe ter s / 208

contribute troops. The Security Council may authorise, but can in actual fact not compel such action. There is no accepted procedure for distributing the task to particular states, and no generally agreed formula for cost-sharing. If member states refuse to contribute troops, then the Security Council would lack, in the absence of standing agreements, the means to intervene in an RtoP situation. Thus the Security Council’s role in authorising actions designed to fulfil the international community’s responsibility can only be a first step, a necessary but not sufficient condition for actually discharging the responsibility to protect in a situation where non-military means were of no avail. This fact already might be the decisive reason precluding any conceptualisation of the Council’s responsibility as a legal one.46 Awareness of the impotence of the Council is moreover salient for those states that are likely to contribute troops. Would not a positive obligation to concur in a Council decision to intervene additionally imply that such states would also act unlawfully if, after the adoption of such a resolution, they refused to contribute troops? But in the absence of the standing agreements as originally foreseen in the UN Charter, such an obligation of states seems hardly conceivable. Ultimately, thinking through the idea of a legal obligation up to this point demonstrates the limits of international law. From a political perspective, the main problem may not be the adoption of a Security Council resolution authorising (some) action, but rather the rift between the words and deeds. However, a Council resolution authorising robust measures, and in the last resort military intervention, is in the current state of international law the juridical conditio sine qua non of the legality of an intervention for humanitarian purposes. It should therefore stand at the centre of lawyerly attention. To conclude, the juridical consequences of RtoP, if endorsed as a legal principle, are rather serious. Spelling out the consequences to their very end is apt to deter states from accepting RtoP as a hard legal obligation. The prospects of endless chains of legal obligations might in the final analysis turn out to be counter-productive for alleviating the plight of endangered populations. However, it seems promising to further pursue the course of procedural obligations falling on the members of the Security Council to justify their vote. RtoP has probably already shifted the onus of justification here.

Notes 1 The argument of this chapter has been further developed in A Peters, ‘The Security Council’s Responsibility to Protect’ (2001) 8 International Organisations Law Journal 1-40. I thank André Nollkaemper for inviting me to think about the issue in the first place. 2 UNGA ‘2005 World Summit Outcome’ (2005) UN Doc A/60/L.1 (WSO Document) paras 138-39. 3 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) accessed 30 March 2011 (ICISS Report).

Rt o P an d th e Per m anen t Five / 209

4 Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion) [1948] ICJ Rep 57, 64 (Admission case). See also Dissenting Opinion of Judges Basdevant, Winiarski, Sir Arnold McNair and Read, 82-93, paras 9, 20-25. 5 Prosecutor v Dusko Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY-94-1-AR72 (2 October 1995) paras 26-28. 6 See Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN Charter) Art 24(2). 7 Ibid Art 1(2-3). See eg S Lamb, ‘Legal Limits to United Nations Security Council Powers’ in G S Goodwin-Gill (ed), The Reality of International Law: Essays in Honour of Ian Brownlie (Oxford UP, 1999) 361-88. 8 G Cahin, ‘La notion de pouvoir discrétionnaire appliquée aux organisations internationales’ (2003) 107 RGDIP 535-600. 9 See eg Prosecutor v Rutaganira ( Judgement and Sentence) ICTR-95-IC-T, T Ch III (14 March 2005) paras 61-91, on the complicity of a town counsellor in the crime of extermination through omission. 10 UN Human Rights Committee ‘General Comment No. 31 [80] Nature of the General Legal Obligations imposed on State Parties to the Covenant’ 13 (26 May 2004) UN Doc CCPR/C/21/Rev.1/Add.13 para 8. For the IACHR see Velásquez Rodriguez v Honduras, Judgement, Inter-American Court of Human Rights Series C No 4 (1988) paras 172-177. See on the ECtHR C Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (Springer Verlag, Berlin 2003). See for gender-based violence M Hakimi, ‘State Bystander Responsibility’ (2010) 21 EJIL 341-85, 379-83. 11 G Gaja, ‘Third Report on the Responsibility of International Organisations’ UN Doc A/ CN.4/553 (13 May 2005) para 10. 12 J Alvarez, ‘The Schizophrenia of R2P’, The Hague Joint Conference on Contemporary Issues of International Law (2007) 12. 13 Cf Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 2 (Genocide case) para 430. 14 Art 40 UNGA Draft Articles on Responsibility of States for Internationally Wrongful Acts, Res 56/83 (28 January 2002) UN Doc A/RES/56/83 (DARIO). 15 L-A Sicilianos, ‘Entre multilatéralisme et unilatéralisme: L’autorisation par le Conseil de sécurité de recours à la force’ (2008) 339 Recueil de Cours de l’Académie de la Haye 13-436, 184-87. 16 Admission case (n 4) Dissenting Opinion para 20. 17 The term ‘dédoublement fonctionnel’ was coined by Georges Scelle, who used it in a quite different sense, and applied it mostly to domestic courts acting as agents of the international community (G Scelle, ‘Le phénomène juridique du dédoublement fonctionnel’ in W Schätzel and H-J Schlochauer (eds), Rechtsfragen der internationalen Organisation: Festschrift für Hans Wehberg zu seinem 70. Geburtstag (Klosterman, Frankfurt a.M. 1956) 324-42). 18 In this sense also L Arbour, ‘The Responsibility to Protect as a Duty of Care in International Law and Practice’ (2008) 34 Review of International Studies 445-58, 453-54. 19 ICISS Report (n 3) para 6.21. 20 Report of the High-Level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’ (2004) UN Doc A759/565, para 256. 21 The Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned (Oxford UP, 2000) 198.

Anne Pe ter s / 210

22 Report of the Secretary-General, ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677, para 61. 23 See the lucid analysis by E Lagrange, La répresentation institutionnelle dans l’ordre international (Kluwer Law International, The Hague 2002) 315-43. 24 Ibid 326-327 specifically on the abuse of the veto. She claims that the veto is not abusable, and that despite appearances to the contrary, the GA respects this principle, 327. 25 Lagrange’s argument is that if the vote equalled a consent to be bound, non-binding decisions (recommendations) and binding decisions (such as UN Security Council resolutions) could not be distinguished. Ibid 320. 26 Ibid 335. 27 Ibid 332. 28 Cf A Kiss, ‘Abuse of Rights’ in R Wolfrum (ed), Max Planck Encyclopedia of International Law (Oxford University Press online 2009) . 29 Ibid paras 1 and 4. 30 Admission case (n 4) (Dissenting Opinion) para 21. See also ibid para 9: the fact that a Security Council decision (in that case a recommendation for admission of a state to the UN) is ‘pre-eminently a political act … does not mean that no legal restriction is placed upon this liberty. We do not claim that a political organ and those who contribute to the formation of its decisions are emancipated from all duty to respect the law.’ 31 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, para 22 (South West Africa case). 32 This has so far been codified only for the special case of the failure to perform a treaty (cf both arts 27 of VCLT 1969 and 1986). 33 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 179-84 (Reparation for Injuries case). 34 Institute of International Law Yearbook, vol 66, part I, Session of Lisbon, 1995, Preparatory Works, 412 para 102. 35 Ibid 283. 36 Delegation of China in the Sixth Committee cited in: ‘Fourth Report on Responsibility of International Organisations by Special Rapporteur G Gaja’ (2006) UN Doc A/ CN.4/564/Add.2 para 85. 37 See in favour of the possibility of complicity P Klein, La responsabilité des organisations internationales (Bruylant, Bruxelles 1998) 469. 38 ILC, ‘Report of the International Law Commission on the Work of its 61st Session’ (4 May-5 June and 6 July-7 August 2009) UN Doc A/64/10, 37. 39 Ibid Commentary on Art 57 para 2. In this sense also commentary on Art 58 para 2. 40 Ibid. 41 Ibid. 42 C Verlage, Responsibility to Protect (Mohr Siebeck, Tübingen 2008) 253. 43 J Elster, ‘Deliberation and Constitution Making’ in J Elster (ed), Deliberative Democracy (Cambridge UP, 1998) 97-122, 111. 44 Proposal by Costa Rica, Jordan, Liechtenstein, Singapore, Switzerland, ‘Improving the Working Methods of the Security Council’ (17 March 2006) UN Doc A/60/L.49; see also the same states’ draft resolution of 14 April 2011, agenda item 115 ‘follow-up to the outcome of the Millennium Summit’. 45 In that declaration of 19 July 2006, the members of the Council committed themselves to intensify their efforts to publicise decisions (Annex to the Note by the President of the Security Council (19 July 2006) UN Doc S/2006/507).

Rt o P an d th e Per m anen t Five / 211

46 In that sense H J M Welsh and M Banda, ‘International Law and the Responsibility to Protect: Clarifying or Expanding States’ Responsibilities?’ (2010) 2 Global Responsibility to Protect 213-31, 230.

15

The African Union and the Responsibility to Protect Principles and Limitations Ademola Abass

1 Introduction There is nothing inherently new, or redoubtably extraordinary, in the proposition that States should shoulder the responsibility to protect their own people. Nor is it indeed a groundbreaking discovery that other States choose not to stand idly by while a State decimates its own citizens. If we exclude the travestied interpretation of sovereignty – which, for some States, seems to imply that a State is at liberty to wreak havoc on its own people – the very notion of sovereignty implies that a State bears an almost sacrosanct responsibility to protect its people against all forms of evils, including those that may originate from within the State itself, even if inadvertently. It is when a State fails to discharge this responsibility, and the United Nations Security Council’s (SC’s) administered collective security under Chapter VII of the Charter fails to rescue the situation, that another State, or a group of States, acting as a deus ex machina, intervene to halt or prevent the wanton destruction of lives and property occurring in the State concerned. ‘States playing God’ (an inexact approximation of the Greek aphorism deus ex machina – ‘god out of machine’) is one way of looking at humanitarian intervention, especially since it is up to those States to decide for themselves that the human suffering in the target State has reached a level deemed unacceptable by any civilisation to warrant their intervention. Humanitarian intervention has never been free from controversy, and for good reasons too. While some incidents of what were arguably humanitarian intervention – such as Tanzania’s disposal of the murderous Idi Amin’s regime in Uganda in 1979 – present isolated instances of persuasiveness, the vast majority of humanitarian interventions can be readily passed off as a shield for meddlesomeness, and are often regarded by most developing countries as an imperialistic tool in the hands of powerful but canny users.

Adem ola A b as s / 214

In recent times – precisely since the raucous, blatant aerial invasion of Yugoslav forces by the North Atlantic Treaty Organisation (NATO) in Kosovo – the controversy about the legality of humanitarian intervention had somewhat abated. The hope for a revival of that debate, following Serbia’s case against 10 NATO States before the International Court of Justice (ICJ), was dashed by the fact that the Alliance did not to plead humanitarian intervention as a justification for the 1999 action.1 Only Belgium raised the plea in its memorial, but then, the fact that the case did not survive the provisional measures stage meant that the ICJ was spared pronouncing on the legality of humanitarian intervention. In 2005, the General Assembly (GA) convened an unprecedented summit of world leaders as a follow-up to the 2000 Millennium Summit. The World Summit Outcome Document (WSO Document) embodied the principle of Responsibility to Protect (RtoP).2 In two core paragraphs (138 and 139), States and the international community accept their different responsibilities to protect. Whilst States accept the responsibility to protect their populations from genocide, war crimes, crimes against humanity and ethnic cleansing, the international community, through the United Nations (UN), commits to ‘the responsibility to use appropriate diplomatic, humanitarian and other peaceful means ... to help to protect populations from’ the same crimes States commit to prevent. The difference is that whereas a State’s responsibility to protect its people is primary, the international community can only act as a secondary actor, and only when a State has failed in its own responsibility and is also unable to utilise assistance provided by the international community towards meeting that obligation. Since the euphoric reception of RtoP in 2005 as a new international norm, a huge controversy has ensued about what the notion actually entails and how it is to be implemented. So far, critical points of discourse have included whether, in theory, RtoP is different from humanitarian intervention, when force can be used against a State that has failed to fulfil its RtoP obligation towards its people, and how the various elements of RtoP are to be implemented in practice. The most important issue of all remains how to reconcile RtoP with sovereignty, the fundamental basis for the existence of a State. For a start, the international community sought to nip any potential controversy about RtoP in the bud by conceptually distinguishing the concept from its analogous counterpart, humanitarian intervention. Whether this early effort to elevate RtoP beyond the cryptogenic doctrinal debates about RtoP remains to be seen. However, several questions remain. Principal among these is whether, in lieu of the Security Council, other actors can take forcible measures to protect human lives. The WSO Document, as with other allied instruments, confers on the Security Council the ultimate authority to take forcible action towards vindicating RtoP. But considerable doubts linger as to whether this conferral precludes such actors as regional organisations from playing residual roles, for instance, whenever the Security Council is immobilised.

T h e Af r i c an U ni on a nd Rt o P / 215

This chapter responds to this query by examining how the African Union (AU), the organisation credited with pioneering international efforts at legislating on RtoP, understands its responsibility to protect. In particular, it considers the various provisions of the Constitutive Act of the AU (AU Act), related to the Union’s principles of ‘non-indifference’ and ‘non-interference’, as well as its right to intervene in its Member States, and their impact on RtoP. The chapter also discusses whether, in the contemplation of the AU’s Ezulwini Consensus and several allied instruments, there is room for regional organisations to act in the stead of the Security Council whenever a dire RtoP situation arises. With reference to the AU ‘intervention’ in Kenya and Darfur, the chapter discusses the progress and pitfalls of implementing RtoP in Africa.

2

RtoP: Origin and Principles

It is not possible to calibrate RtoP, and there can be no last word on the concept’s exact origin. Theories and views differ, depending on who is seeking and for what purposes. Commentators have traced the origin of RtoP to such rudimentary developments in nineteenth-century international law as the Martens Clause, contained in the 1899 and 1907 Hague Conventions.3 Others have argued that the notion of RtoP emerged only recently. What is certain, though, is that from the late 1990s onwards, the notion that States bear a responsibility to protect their people began to appear rather ubiquitously in academic and policy discourses, although the doctrinal scope of such early conceptions did not exactly coincide with what is today regarded as RtoP.4 If one cares deeply about the concept’s historical development, it is plausible to assert that as the notion that is used today, RtoP owes its popularity to the pioneering exposure of the concept by the International Commission on Intervention and State Sovereignty (ICISS) in 2001, 5 which was itself inspired by the fall-out from NATO’s action against Serbia and Montenegro in Kosovo. The deep division caused the world over by the unauthorised NATO invasion of the Former Republic of Yugoslavia, particularly among the permanent members of the Security Council (the P5), created a high degree of solid perplexity in the international legal order. The vexed question was whether States should or should not act whenever the Security Council fails to act to stop the violent repression or destruction of people by their own governments or other elements, as with Rwanda. Those who believe States should act asserted humanitarian intervention in support of NATO, although, as already noted, NATO itself did not make this an official justification of its action in Kosovo. However, those opposed contend that humanitarian interventions, even if morally sensible, are antithetical to the established international legal order which confers sovereignty on States and regulates the instances permissible under international law when force can be used against a State.6 Put bluntly, the argument was one that pitched the moral desirability of humanitarian intervention, in all its

Adem ola A b as s / 216

legal imperfections, against the legal superiority of sovereignty, often underwritten by a great moral perfidy. In 1999 and 2000, reflecting on the perplexity warranted by the diametrical contest between the legal and deontological positions embodied by sovereignty and humanitarian intervention respectively, the then Secretary-General of the UN, Kofi Annan, wondered, if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that affect every precept of our common humanity?7

The international response to this query, first embodied in the report of the ICISS and later the WSO Document, consists largely in the enshrining of a series of principles of RtoP which will demarcate the provinces of the nascent concept from the legal perimeters of sovereignty on the one hand, and humanitarian intervention on the other. Interestingly, the ICISS had chosen not to revamp the debate on humanitarian intervention, despite the apparent closeness of the doctrine to RtoP, by altogether avoiding the use of the phrase ‘humanitarian intervention’. The reason for the ICISS’s choice of term, or more specifically, its avoidance of ‘humanitarian intervention’, was due to policy objections. As the body noted, We have responded in this respect to the very strong opposition expressed by humanitarian agencies, humanitarian organisations and humanitarian workers towards any militarisation of the word ‘humanitarian’: whatever motives of those engaging in the intervention, it is anathema for humanitarian relief and assistance sector to have this word appropriated to describe any kind of military action.8

The subversion of an essentially legal term by policy considerations, which was clearly what the ICISS pandered to in this instance, does not necessarily solve any problem, or, in fact, makes too much of a compelling case. To be sure, States have always used force to deliver humanitarian assistance (this is not humanitarian intervention, but assistance). In such cases, as with Somalia in 1994, the justification for the use of force is simply to facilitate the delivery of humanitarian aid and assistance to needy populations, especially where fighters deliberately make it impossible for food and other materials to reach needy people in conflict. In fact, countless UNSC resolutions have encouraged the use of force or ‘all necessary means’ to facilitate the implementation of UN mandates which, almost invariably, include the delivery of aid to needy peoples. Thus, if we accept the reasoning of the humanitarian agencies, which provided the ICISS with the rationale for jettisoning the term ‘humanitarian intervention’, then the use of force, authorised by Security Council, to facilitate delivery of aid during armed conflicts, cannot be regarded as humanitarian, since it falls foul of the so-called militarisation of the term ‘humanitarian’. The fact that the

T h e Af r i c an U ni on a nd Rt o P / 217

avoidance of the phrase has not had any real effect on the discourse, but on the contrary, has actually fuelled the relapse into the ‘humanitarian intervention debate’, underscores the limited utility of appealing to superficial rationality. The second reason proffered by the ICISS for jettisoning the phrase ‘humanitarian intervention’ is more persuasive. As the Commission said, ‘the use of an inherently approving word like “humanitarian” tends to prejudge the very question in issue – that is, whether the intervention is in fact defensible’.9 Indeed, using the term ‘humanitarian intervention’ in the context of RtoP prejudges – and, thus, potentially compromises – the arguable, potentially self-justifying and self-sustaining identity of RtoP. As a concept, RtoP thus operates on the principle that a State has the primary responsibility to protect its people. If a State fails in this responsibility, that still does not give outsiders the right to automatically intervene in the State. Rather, the international community must render assistance to that State, in terms of capacities to enable it meet to its responsibility. However, if, despite this assistance, a State is ‘unwilling or unable’ to protect its people, then the international community’s responsibility is activated.10 The measures that the international community may take in vindicating its right under paragraph 139 are staggered: they range from diplomatic and humanitarian to means under Chapter VI and VIII of the UN Charter. Should these measures fail to redress the situation, then: 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 manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.11

This statement has been interpreted as not imposing any hard obligation on the international community, but rather, merely pointing ‘toward a voluntary, rather than a mandatory, engagement’, and that ‘states commit themselves to act only ‘on a case-by-case basis’ through the Council, which again stands in contrast to the assumption of a systematic duty’.12 Whether this is a correct reading of paragraph 139 is open to debate. However, it should be pointed out that as a matter of practice, States rarely assume international obligations under non-binding instruments such as the WSO Document on mandatory terms. Yet, by adopting flexible or voluntary expressions, as they do in paragraph 139, it does not necessarily follow that States intend bad faith: on the contrary, it may simply manifest their desire to leave themselves a bit of ‘wriggle room’ for future negotiation. Irrespective of what one makes of the obligation spoken to in paragraph 139, it is interesting to note how the international community assembles its responsibility

Adem ola A b as s / 218

to protect in the WSO Document. For diplomatic intervention, it envisages that this would be undertaken by the UN (Chapter VI) and regional organisations (Chapter VIII). However, with regard to military intervention as the last resort, the Security Council is the only organ expressly nominated for that purpose (Chapter VII). This schema raises some interesting questions. Does this mean that regional organisations are precluded from undertaking military intervention regarding RtoP, since they are confined to Chapter VIII? And what do we make of the fact that Chapter VIII itself does permit regional enforcement action under certain circumstances? Certainly, the international community’s responsibility to protect is activated whenever a State fails its responsibility, but what if the ultimate representative of that international community, the Security Council, is, like the State, ‘unwilling or unable’ to act as it has in fact been on several occasions?

3

Regional Organisations and Residual Responsibility to Protect: The ‘Ezulwini Consensus’ and the Particular Case of the AU

At the 7th Extraordinary Session of the AU Executive Council at Ezulwini, Swaziland on 7 and 8 March 2005, the AU adopted the ‘Ezulwini Consensus’, a document which embodies a common African position on several issues contained in the UN Secretary-General Report of the High-Level Panel on Threats, Challenges and Change, including UN reform.13 Although the principal objective of the Ezulwini meeting pertained to the agitation for two permanent seats for Africa on the UNSC, the AU Assembly used the opportunity to pronounce its position on many other issues. Regarding RtoP, the Consensus states that ‘an authorisation for the use of force by the Security Council should be in line with the conditions and criteria proposed by the Panel, but this condition should not undermine the responsibility of the international community to protect’.14 This statement is quite telling, particularly because six months before the world would warm towards RtoP, Africa had not only recognised the inevitability of the concept, but was already pondering ways of ensuring that the concept did not become hostage to Security Council power, like many initiatives before it. The statement is equally important for another reason. It implies the basis upon which the AU would claim to retain a residual responsibility for undertaking military intervention towards RtoP. Obviously, the AU accepts the primacy of the Security Council deploying military operations, but only insofar as the Council behaves responsibly, which means, as the AU puts it, the Council applies the High-Level Panel conditions in a way that undermines the ability of the international community to discharge RtoP. The High-Level Panel identified five criteria or conditions that should guide the Security Council’s decision as to whether to authorise a military intervention or not. These are namely: the seriousness of the threat, proper purposes, last resort,

T h e Af r i c an U ni on a nd Rt o P / 219

proportionality and a balance of convenience.15 These are resoundingly subjective matters, and the probability that the Security Council will bring its awkward politiking to bear on the conditions at a critical time, given its rather appalling record of inaction, is almost assured. At Ezulwini, the AU was not under any illusion that the Security Council would ever apply these conditions in a manner that would guarantee that African lives would not be lost to the shenanigans of Security Council politics. Precedents of the Security Council’s extremely costly inaction in African conflicts, particularly during the 1994 Rwanda genocide, have left many Africans comprehensively disillusioned about leaving the implementation of RtoP to the exclusive charge of the Security Council, especially with respect to the use of force to halt or avert humanitarian disasters. As a precaution, the AU declared at Ezulwini that: Since the General Assembly and the Security Council are often far from the scenes of conflicts and may not be in a position to undertake effectively a proper appreciation of the nature and development of conflict situations, it is imperative that Regional Organisations, in areas of proximity to conflicts, are empowered to take actions in this regard. The African Union agrees with the Panel that the intervention of Regional Organisations should be with the approval of the Security Council; although in certain situations, such approval could be granted ‘after the fact’ in circumstances requiring urgent action. In such cases, the UN should assume responsibility for financing such operations.16

To be sure, the High-Level Panel was also mindful of the risk of leaving it all to the Security Council. As it notes in paragraph 202 of its report, ‘the Security Council so far has been neither very consistent nor very effective in dealing with these cases, very often acting too late, too hesitantly or not at all’. Notwithstanding this realisation, the Panel endorse[s] the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent.17

Notwithstanding, the Panel attempted to ally States’ fears about compromising RtoP on the platform of the Security Council’s inaction. Adopting a subtle strategy, the Panel laid the full weight of the responsibility to protect on the Security Council, cajoling the organ as bearing an almost sacred responsibility towards humanity. Bringing RtoP within those issues that the Security Council can always deal with, the Panel assured that:

Adem ola A b as s / 220

step by step, the Council and the wider international community have come to accept that, under Chapter VII and in pursuit of the emerging norm of a collective international responsibility to protect, it can always authorize military action to redress catastrophic internal wrongs if it is prepared to declare that the situation is a ‘threat to international peace and security’, not especially difficult when breaches of international law are involved.18

It will be recalled that three years earlier, the ICISS has exercised itself on the same issue. It states that: the Commission is in absolutely no doubt that there is no better or more appropriate body than the Security Council to deal with military intervention issues for human protection purposes. It is the Security Council which should be making the hard decisions in the hard cases about overriding state sovereignty … That was the overwhelming consensus we found in all our consultations around the world. If international consensus is ever to be reached about when, where, how and by whom military intervention should happen, it is very clear that the central role of the Security Council will have to be at the heArt of that consensus. The task is not to find alternatives to the Security Council as a source of authority, but to make the Security Council work much better than it has.19

The ICISS’ insistence on the Security Council exercising exclusive authority over forcible RtoP measures is to be understood against the background of the fear expressed by many States about leaving such an important decision regarding the use of force within sovereign States to individual States. Additionally, the body was clearly guided by the collective security structure of the UN Charter, since it explicitly referred to Charter VII provisions.20 Given that the Security Council is already vested with the primary responsibility to maintain international peace and security (Article 24 UN Charter), and is empowered to take enforcement actions against States (Chapter VII), it seems natural that it is the organ favoured with the central role for implementing RtoP. In an attempt to discourage States from prospecting for alternatives to the Security Council’s exclusive competence over forcible interventions for RtoP purposes – which neither the Panel nor the ICISS favoured21 – the Panel sought ways to make the Security Council function more responsibly. It appealed to the permanent members of the Council, ‘to pledge themselves to refrain from the use of the veto in cases of genocide and large-scale human rights abuses’.22 The World Summit perpetuated this effort by including the appeal in the Draft WSO Document as a way of averting the strategic use of the veto to undermine RtoP. However, under enormous pressure, principally from the US, the World Summit ditched the clause, forcing some to conclude that this leaves the permanent Security Council members ‘with a powerful negotiating tool, permitting bad faith vetoes in the face of clear atrocities’.23

T h e Af r i c an U ni on a nd Rt o P / 221

The Security Council’s objection to the proposal that it refrains from vetoing resolutions related to egregious crimes makes the case for it retaining exclusive powers over authorisation of the use of force in RtoP cases untenable to the AU. For the Union, the choice is between leaving everything to the Security Council and risking doing nothing, and taking steps towards protecting human lives prior to worrying about compliance with legal obligations. The AU clearly, and arguably quite rightly too, prefers the latter. From its statement at Ezulwini quoted above, it is clear that, like any other regional organisation, the AU intends to exercise full control over the implementation of RtoP in conflicts occurring in Africa. While the Union obviously does agree that Security Council approval is required for military actions, it nevertheless reserves for itself the right to act first and then seek retroactive approval, as the situation may warrant. In other words, the AU signalled at Ezulwini that it does not regard Article 53(1) of the UN Charter, under which regional organisations are obligated to seek Security Council authorisation for their enforcement actions, to be always applicable. For the AU, this disaggregated authorisation regime is a sound compromise between those advocating that only the Security Council may implement RtoP (such as the ICISS) and those who believe, as the US argued at the World Summit, that unilateral actions should be permitted under certain circumstances. The argument may be made that since the AU Ezulwini Consensus antedated the World Summit, its position on residuality has subsequently been overtaken by the latter, which leaves the authority over the use of force exclusively to the Security Council. Pace, since the World Summit, several AU members States have reiterated their stance on the role of regional organisations in implementing RtoP. During the Security Council Open Debate on Maintenance of Peace and Security in Africa, UNSC 28 August 2007, the representative of Benin, Jean-Marie Ehouzou, stated that: It is clear that the United Nations system in conducting peacekeeping operations has, until recently, operated with marginal involvement by regional organisations. The time has come to make the necessary changes in order to make it possible for the organisations to fully play their role in the collective security system established by the Charter – both in terms of the doctrine of peace operations and in the allocation of related resources.24

In Africa, the AU and sub-regional organisations such as the Economic Community of West-African States (ECOWAS) will most likely assert their right to intervene on the basis of the WSO Document, which clearly envisages some sort of cooperation between the Security Council and regional organisations, and the Ezulwini Consensus, which fully endorses regional organisations functioning instead of the remotely located Security Council or GA. Of course, whether these organisations

Adem ola A b as s / 222

have the requisite human resources and allied capacities to physically undertake such a task is another issue altogether. Precedents including ECOWAS’ interventions in Liberia and Sierra Leone indicate that such sub-regional organisations, in particular ECOWAS, should be expected to intervene militarily in their Member States to protect peoples’ lives. Fortunately, ECOWAS does not suffer the legal ambiguity of Article 4(h) of the AU Act.25 In 1999, the organisation adopted a very important protocol, which entitled it to take enforcement actions in any of its Member States without their consent.26 Since then, ECOWAS has applied the protocol on several occasions, including repelling Faure Eyadema’s unconstitutional ascendancy to the Togolese presidency after the death of his father, and imposing arms embargoes on Guinea and Niger in 2009. The indignation of African States against conferring the Security Council with exclusive responsibility to protect peoples derives from a history of costly disappointments and betrayals suffered by Africa, inflicted by the notoriously selective collective security of the UN. Such unprincipled application of collective security has instigated African States to openly defy some Security Council decisions. For instance, the Organisation of African Unity’s (OAU’s) Assembly of Heads of State and Government adopted the Ouagadougou decision,27 which mandated its members to disregard the Security Council sanctions imposed on Libya pursuant to the Lockerbie Affair.28 However, one must be cautious when interpreting such rare acts of defiance. True, the deep frustration with Security Council inaction that is often felt by many African States sometimes makes astute compliance with their international obligations difficult. But to then describe such disregarded Charter rules (for example, that the Security Council must authorise regional enforcement actions) as mere ‘legal niceties’ is to totally miss the point.29 When States ignore the Security Council’s decisions, including their obligations under the UN Charter, it is certainly not because they believe that such decisions and obligations are worthless: it is rather a cold reminder to force the Council’s conscience to acknowledge the fact that its irresponsible behaviour and discriminatory practices pose a serious threat to its legitimacy, and to how much it can inspire cooperation from States. As a matter of fact, the High-Level Panel itself recognised the fact that the Security Council often undermines its own legitimacy. Nevertheless, the Panel recommended working to strengthen the organ from within: One of the reasons why States may want to bypass the Security Council is a lack of confidence in the quality and objectivity of its decision-making. The Council’s decisions have often been less than consistent, less than persuasive and less than fully responsive to very real State and human security needs. But the solution is not to reduce the Council to impotence and irrelevance: it is to work from within to reform it, including in the ways we propose in the present report.30

T h e Af r i c an U ni on a nd Rt o P / 223

Having dealt briefly with the basis for the AU’s, and regional organisations’ more generally, residual authority to take military action for RtoP purposes, the chapter now turns to examine the regulatory and institutional mechanisms through which the Union may implement RtoP.

4

The Constitutive Act of the AU: Does ‘NonIndifference’ Mean ‘Military Intervention’?

4.1 Article 4(h) as an Innovation

Article 4(h) of the AU Act confers the Union with the ‘right to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity’. The vast majority of commentators regard this provision as embodying the doctrine of humanitarian intervention, apparently because it addresses the prevention of egregious international crimes.31 Prior to the advent of the AU, no single international organisation had provided for humanitarian intervention in its treaty. Indeed, the controversy surrounding the doctrine was mostly doctrinal, since States themselves hardly ever assert the right of humanitarian intervention in their practice. For instance, despite the bibulous commentary that trailed NATO’s aerial bombardment of the former Yugoslavia during the Kosovo crisis,32 that organisation never formally claimed that it acted out of humanitarian consideration, although one of its Member States, Belgium, included the claim in its defence in the case brought against 10 NATO States by Serbia at the ICJ.33 Not even in what may be described as probably the best instance of humanitarian intervention yet, that is, Tanzania’s forcible expulsion of Idi Amin from Uganda in 1979, did Tanzania claim to have acted out of humanitarian considerations. Rather, President Nyerere said he was responding to a previous attack on his country by Uganda, especially the seizure and annexation of the Kagera Salient, a Tanzanian border area with Uganda. Indeed, it was not until 1989, when ECOWAS intervened in Liberia, apparently ‘to stop the senseless killings’, and the US, UK and France established a safe haven over the 36th parallel in Northern Iraq to shield the revolting Kurdish population from Saddam Hussein’s atrocities in 1991, that international organisations and individual States began to formally attribute their unilateral uses of force to humanitarian intervention.34 Even then, the fact that the bold and groundbreaking ECOWAS Collective Security Protocol,35 adopted 10 years after its claim to humanitarian intervention in Liberia, did not incorporate humanitarian intervention, and the UK’s lack of reference to that doctrine in its public justification of the NATO action,36 10 years after protecting Kurds in Northern Iraq allegedly on the same ground, arguably underscores the reluctance by States and international organisations alike to constitutionally legislate for, or formally recognise, humanitarian intervention in their practice.

Adem ola A b as s / 224

The fact that the AU has now formally provided for the right to intervene in its Member States recently matched the erstwhile academic controversy about humanitarian intervention with practice, since it is now possible to hold the organisation to its obligations under its constitutive instrument. Accordingly, it has been argued that the article gives the Union the right to intervene in its members’ conflicts, regardless of whether the State in question consents to such an intervention. Proponents further contend that the use of force to protect human lives in times of conflicts accords generally with the paradigmatic shift of the AU from the ‘noninterference’ stance of its predecessor, the OAU, to its own widely acclaimed ‘nonindifference’. The question to ask is whether this is an accurate interpretation of Article 4(h) of the AU Act.

4.2 Article 4(h) AU Act: Common Interpretative Fallacies

It is beyond doubt that Article 4(h) of the AU Act encapsulates the principle that the AU must intervene when egregious international crimes occur in its Member States. It is less certain, however, what this intervention entails in reality, and how it is to be reconciled with the principle embodied by Article 4(g) obliging AU Member States not to interfere in their internal affairs. Does the so-called ‘nonindifference’ principle of the AU mean the same thing as ‘military intervention’, as many commentators tend to argue, or has the purpose of Article 4(h) simply been exaggerated? This query is critical to a consideration of how the AU intends to implement RtoP, for the precise reason that such a task implicates interfering in the internal affairs of its Member States. There are two possible ways of interpreting the principle enshrined in Article 4(h). First, and obviously the view adopted by most commentators, is a literal interpretation, which suggests that the principle of ‘non-indifference’ necessarily implies the ‘use of force’. This view does not withstand analysis. During the 1999 Sirte Summit, which considered the texts of the AU Act, the OAU Secretariat identified key principles that should guide the process of the institutional and structural changes and the transformation of the OAU into the AU. The first relates to the determination, stipulated in preambular paragraph 10 of the Act, ‘to take all necessary measures to strengthen our common institutions and provide them with the necessary powers and resources to enable them [to] discharge their respective mandates effectively’.37 Second, there is the view that the objectives and principles of the AU, enshrined in Articles 3 and 4 of the Constitutive Act, provide an advanced degree of political cooperation covering, inter alia, the promotion and defence of African common positions on issues of interest to the continent and its peoples, and so forth.38 It must be pointed out that the formation of the AU and the discussion of its Constitutive Act took place against the backdrop of the OAU’s inability to deal with the various devastating conflicts racking its Member States, including Liberia and Sierra Leone. By contrast, ECOWAS, for better or for worse, immediately engaged these two conflicts with the regional hegemon, Nigeria, providing most

T h e Af r i c an U ni on a nd Rt o P / 225

of the requisite human and material resources for the operation. While some have argued that the then president of Nigeria, Olusegun Obasanjo, was heavily inclined towards including Article 4(h) in the Act as a means of dealing with problems that, if unchecked, could lead to the massive inflow of refugees into Nigeria,39 others have argued that the provision, along with those on good governance, democracy and human rights, was inserted merely to please foreign donors.40 While neither of these perspectives is easy to validate, given the absence of evidence adduced in support by their proponents, it is incontrovertible that intervention by ECOWAS in West African conflicts consternated the OAU, which saw this as a direct challenge to its relevance on the continent. Indeed, it would have been totally untenable for the AU Act not to include a provision of the nature of Article 4(h), given the mass atrocities occurring in OAU Member States. As the day’s legal counsel of the OAU has noted: in an era in which post-independence Africa has witnessed the horrors of genocide and ethnic cleansing perpetrated on its own soil and against her own kind, it would have been absolutely amiss for the Constitutive Act to remain silent on the right to intervene in respect of such grave circumstances as war crimes, genocide and crimes against humanity.41

As a matter of fact, while speaking in regard to the proposed Pan-African Parliament, the then president of Mali, Alpha Konare (who would later become the first Chairperson of the AU), made it clear that ‘it was not necessary for such an institution to be a supra-national body, but rather a forum that allowed for discussions and exchange of views on the AU, as well as the participation of civil society in the project’.42 Konare’s view was echoed by the majority of African rulers, who eagerly extended the proposal to embrace all the institutions and organs of the Union, including, of course, the Union itself. Not once did any of the African leaders present at Sirte refer to Article 4(h) in terms of non-consensual military intervention by the AU in its member conflicts. An appreciation of the historical leitmotif of Article 4(h) is of critical relevance to the explication of its utility by the AU, even though this initial motive does not necessarily bind the article’s future. Nevertheless, it goes against the history and policy of the AU to assume that it intended the provision as the basis for using force against its Member States, despite the article speaking clearly to intervention by the Union in its Member States. Surely, if the AU intervenes politically in its Member States during a national crisis, it would be seen to have chosen the path of ‘non-indifference’; but it does not then follow that it must intervene militarily in the situation, much less that it has an obligation or duty to undertake humanitarian intervention. To be sure, the AU assumes an obligation under Article 4(h) of its Act, but that obligation is to intervene in Member States, not invariably to use force against its Member States; the two are not the same, and to argue that the Union possesses the right of humanitar-

Adem ola A b as s / 226

ian intervention under Article 4(h) would be unconvincing. If it could be said that the AU possesses such powers courtesy of a literal interpretation of that provision, as indeed a simplistic reading of that provision implies, there are various counterpoints, drawn from the travaux préparatoires of the AU Act and several policy instruments, that make such an interpretation at best naïve. The view that Article 4(h) confers on the AU a right of humanitarian intervention undoubtedly has doctrinal merit; nonetheless, it underscores an acute lack of awareness of both the history of negotiation of the Union and its practice in the 10 years of its existence. It is one thing to say that the ‘non-indifference’ principle suggests that the AU will not keep silent in the face of wanton destruction of lives and property in any of its Member States, but it is quite another thing to then imply that the Union would always go, guns blazing, into any of its Member States to protect human lives on the basis of Article 4(h). The intervention by the AU Mission in Sudan (AMIS) shreds any modicum of doubt relating to the conclusion drawn above.43 The intervention by AMIS occurred in the shadows of the Ezulwini Consensus, where the AU empowered itself to intervene in its Member States regardless of the Security Council or the GA, and the World Summit that fully endorsed RtoP. Yet, despite that, there was near universal clamour for the AU to take military action against the Janjeweed militia, to halt the extermination of the African tribes. The organisation had implored the Government of the Sudan to allow it to deploy a peacekeeping operation. In several of the meetings held at the Union’s Headquarters in Addis Ababa related to the mission, not once did any of the AU States or their officials canvass for humanitarian intervention, or any type of non-consensual action for that matter. Yet, the AU intervention in Darfur presented the Union with the best opportunity to authorise force to protect human lives which, as will be seen below, it had asserted to be its right at Ezulwini without the Security Council’s approval. And going by ECOWAS’ precedents in Liberia and Sierra Leone,44 it was highly unlikely that the Security Council would have had objections had the AU so acted, especially given that the deployment of AMIS coincided with the euphoric adumbration of RtoP at the World Summit that same year. However, the Kenyan debacle is a different matter. Quite clearly human lives were lost, and at a critical point in the impasse, no one could predict how the situation might turn out. The AU nonetheless made a considerable diplomatic effort, one that was sine qua non, in the schema of the WSO Document, to any eventual recourse to military intervention by the international community. Thus, Kenya could actually be read as a perfect example of how RtoP is meant to work. The Government of Kenya, like any other State, has the primary responsibility to protect its people. But when that government itself became implicated in fraudulent elections, which instigated a massive revolt and subsequent killings, it became obvious that the State was either ‘unwilling or unable’ to protect its people, as required by paragraph 138 of the WSO Document.45 However, such a failure does not automatically entitle the international community to deploy military force to protect Kenyans. As is clear

T h e Af r i c an U ni on a nd Rt o P / 227

from paragraph 139 of the WSO Document, the world must first render assistance to enable the State to vindicate its own responsibility under paragraph 138.46 Only if, despite that assistance, the situation persists, then the international community’s own responsibility can be activated. In Kenya, the fact that the Kofi-Annan-led initiative, at the behest of the AU, succeeded, shows that the staggered process for implementing RtoP envisioned by the WSO Documents was indeed effective.47 Measured against the two scenarios discussed above, the conclusion seems inevitable that whilst there may be merit in construing the text of Article 4(h) as conferring a right of humanitarian intervention, State practice and the history of the AU Act reveal that African States intended the article to be no more than an embodiment of a continent-wide policy, agreed by all African States, to empower their Union to intervene politically in matters occurring in their territories. If the AU were to ever use force in the territories of its Member States, it will be to stop non-State actors or rebel groups, such as the Interahamwe and the Janjaweed, which caused havoc in Rwanda and Darfur respectively. Even then, it will be only insofar as such groups are not acting as mere fronts for their governments, as the Janjaweed militia is widely believed to be. Whatever the case may be, the AU will still require the consent of the State to come into the country before dealing with such groups.48 Consequently, the unwritten law of the AU Act is that Article 4(j) entitling the AU Member States to request its intervention (thus, peacekeeping provisions) will remain the basis for any intervention by the Union in the internal affairs of its Member States. Tragically, as far as conferring a right of humanitarian intervention in its Member States’ conflicts is concerned, the future of Article 4(h) remains bleak. It is just as well, therefore, that in their explication of RtoP, the authors of the ICISS Report and the WSO Document deliberately avoided adopting the phrase ‘humanitarian intervention’, given the strong emotional sensitivity it tends to evoke among States.

5

The African Peace and Security Architecture and RtoP

In 2002, the AU adopted the Protocol Establishing the Peace and Security Council (PSC, hereafter PSC Protocol) in accordance with Article 5(2) of the AU Act. Article 1 of the PSC Protocol describes the organ as ‘a collective security and early-warning arrangement to facilitate timely and efficient response to conflict and crisis situations in Africa’,49 and responsible, inter alia, for promoting ‘peace, security and stability in Africa, in order to guarantee the protection and preservation of life and property, the well-being of the African people and their environment, as well as the creation of conditions conducive to sustainable development’.50 In order to ensure continuity, the PSC comprises 10 Members elected for a term of two years, and five Members elected for a term of three years.51

Adem ola A b as s / 228

The Protocol confers enormous powers upon the PSC under Article 7, the essence of which is to ‘approve the modalities for intervention by the Union in a Member State, following a decision by the Assembly, pursuant to Article 4(j) of the Constitutive Act’.52 This provision is enabled by the fact that the PSC operates under the principles contained in Article 4(h) of the AU Act,53 and as such, is empowered to ‘recommend to the Assembly, pursuant to Article 4(h) of the Constitutive Act, intervention, on behalf of the Union, in a Member State in respect of grave circumstances, namely war crimes, genocide and crimes against humanity, as defined in relevant international conventions and instruments’.54 Considering the enormity of its collective security powers, the PSC can be regarded as Africa’s equivalent to the UNSC, except that it does not have a veto. As with the Security Council under Article 25 of the UN Charter, however, the decisions of the PSC are binding on AU member States by virtue of Article 7(3) of its Protocol.55 The overall architecture of peace and security in Africa centres on the interactions among the AU, the PSC and several other elements established for the purpose of maintaining peace in Africa. The relations between the AU Assembly and the PSC are clear: the former is the Union’s highest decision-making body, while the latter is the organisation’s collective security powerhouse. That means that the task of implementing RtoP rests squarely on the PSC. It is for the Chairperson of the AU to bring those matters that s/he considers likely to threaten the peace and security of the continent to the PSC,56 although s/he may also use his/her good offices to resolve disputes.57 Both the AU Assembly and the PSC are assisted by the Panel of the Wise, a quaintly named group of five eminent Africans58 whose responsibility it is to ‘advise the Peace and Security Council and the Chairperson of the Commission on all issues pertaining to the promotion, and maintenance of peace, security and stability in Africa’.59 There is no provision that entitles the Panel to directly engage with States in attempts to resolve conflicts. Nevertheless, such a possibility is recognised by the fact that the Panel is able to, on its own initiative, take measures towards supporting the efforts of the Assembly and the PSC.60 Underlining this structure is a continent-wide early warning system designed to enable the AU to nip conflicts in the bud.61 However, once violence erupts, diplomatic activities are intensified and may be complemented by some forms of military intervention. What type of mission is to be deployed comes down to the decision of the PSC. According to Article 8(13) of the PSC Protocol, Decisions of the Peace and Security Council shall generally be guided by the principle of consensus. In cases where consensus cannot be reached, the Peace and Security Council shall adopt its decisions on procedural matters by a simple majority, while decisions on all other matters shall be made by a two-thirds majority vote of its Members voting.

T h e Af r i c an U ni on a nd Rt o P / 229

How the PSC deals with this provision will have a direct impact on its ability to take enforcement actions when African lives are threatened. In procedural matters, the organ may apply the simple majority, while in all other matters, especially those involving peace and security, a two-thirds majority is required. On the one hand, the absence of the veto from the PSC guarantees that no single State can hold the fate of nearly one billion Africans hostage, as is possible with the UNSC. On the other hand, the insistence on a two-thirds majority, although desirable for the purpose of achieving broadly-based support for action, will have the result that in practice, almost all enforcement actions will be impossible. Certainly, in an organisation in which one rich Member State has been known to pay the financial dues of several poor members to the Union in order to elicit their support for its position, a requirement of a two-thirds majority for important decisions leaves too much to be desired. It would have been preferable if such decisions concerning peace and security had been subject to the ‘simple majority’ rule, with procedural matters left to a two-thirds majority. Arguendo, in order to deploy a military operation, the PSC requires the cooperation of the regional organisation concerned. This prospect is facilitated by Article 16 of the PSC Protocol, which not only makes these organisations pArt of Africa’s peace and security architecture, but also obligates the PSC and the AU Chairperson to coordinate and harmonise their activities with regional mechanisms. The schema for AU/RECS cooperation is neither detailed in the AU Act nor elaborated in the PSC Protocol. Such details are left to the Memorandum of Understanding between the AU and RECs in the field of peace and security, which is not a concern of this chapter. What is important to note, however, is that the bone of contention in AU/REC cooperation is the deployment of the regional elements of the African Stand-by Force, a continent-wide interventionist powerhouse envisaged by Article 13 of the PSC Protocol. Details of who will authorise what are still being worked out at both the AU and RECs levels, but it is important that the AU and RECs clearly demarcate the areas of responsibility.62

6

The Legality of Forcible Regional Implementation of RtoP under International Law

It does not automatically follow that, just because a regional organisation asserts a residual right to use force to protect human lives, such a claim automatically meets the requirements of international law. There is no doubt that the WSO Document, the High-Level Panel Report and the ICISS Report all contribute enormously to international law, especially regarding the relations of the Security Council to other actors in respect to RtoP; however, they neither amend nor alter the UN Charter. They complement the Charter rules, but they do not supplant them. Consequently,

Adem ola A b as s / 230

whatever rights or privileges regional organisations claim under these instruments must be reconciled with their obligations under the UN Charter. Unless the AU is explicitly or implicitly authorised by the Security Council to take enforcement action in a Member State, an enforcement action by the Union, even to protect human lives, risks illegality under the Charter rules.63 If the AU undertakes an enforcement action that the Security Council does not authorise prior to the action, or takes steps towards retroactively approving, the action is potentially illegitimate and will be seen to have breached Article 2(4) of the UN Charter. However, if the AU takes the action pursuant to a request by the concerned Member State, then this presumably becomes a peacekeeping operation under Article 4(j) of the AU Act, which does not require Security Council authorisation. But if the AU later employs military force within that operation against, say, a rebel group within that Member State, but not the State itself, this is still an enforcement action, insofar as it is aimed at extracting the compliance of the target party with international law. What makes an action enforcement is not the party against which it is directed, but the purpose it seeks to achieve. A regional enforcement action taken for the sole purpose of implementing RtoP may receive accolades from the whole world, but it does not escape the legal requirements of the UN Charter. The WSO Document, and other allied instruments, may confer some authority on the international community to protect people against the most reprehensible crimes in the world, but these obligations are derived from international instruments other than the UN Charter; hence, by virtue of Article 103 of the Charter, the Charter would prevail over such obligations, should there ever be a conflict between the two. The argument may be made that since Article 103 is addressed to States and not to international organisations, and since the latter are not signatories to the UN Charter, their use of force (unauthorised by the Security Council) to implement RtoP is not in collision with Article 103. Sound as this argument may seem, it is difficult to see how States could escape collectively from obligations that they individually assume under the UN Charter. In any case, the action would still violate Article 53(1) of the Charter. From a policy standpoint, the risk of the AU using force against ‘the territorial integrity and political independence of its Member States’ is extremely low, given the low probability that the Union will ever deploy military force without the consent of the Member State concerned. But what if, against all expectations, it does? Then the crux of the matter is whether such force breaches Article 2(4) of the Charter, even if it clearly breaches Article 53(1) of the Charter, which regulates such use of force by regional organisations. The time-honoured argument is that any use of force except for self-defence or authorised by the Security Council invariably breaches Article 2(4). Proponents of humanitarian intervention have tried, without much success, to railroad an exception through customary international law. They argue, inter alia, that although the

T h e Af r i c an U ni on a nd Rt o P / 231

UN Charter does not recognise humanitarian intervention, it seems acceptable to States in their practice. Alternatively, they argue that since one of the purposes of the UN is to protect peoples from the scourges of war, the use of force to prevent massive human rights violations or to protect people does not violate Article 2(4). Some even go so far as to argue that since Article 2(4) is only directed against uses of force that violate the ‘territorial integrity or political independence’ of States, the use of force for purposes other than these does not contravene Article 2(4). This line of argument is prone to many pitfalls. To stArt with, customary international law is at best inchoate on humanitarian intervention. Furthermore, the Charter, which prescribes protecting people from the scourges of war as one of the UN’s purposes, is the same Charter that specifies the means of achieving this goal: the Security Council’s actions, or actions authorised by the Security Council. Those who argue that ‘territorial integrity or political independence’ is not violated by RtoP obviously discount the preferences of the target State, in addition to attaching undue importance to the physical structure of a State, rather than its political essence. That argument is always thin, and has been since Anthony D’Amato first made it in regard to the US military intervention in Grenada in 1983. Without a doubt, the use of force to protect people will in all aspects violate the territorial integrity and political independence of the State concerned. Thus, D’Amato’s argument cannot be used for the purposes of RtoP; that is, if it ever made any sense at all. The ICISS attempted to escape this kind of debate by deliberately avoiding using the phrase ‘humanitarian intervention’, allegedly because many stakeholders that it consulted in the course of its work objected to the militarisation of humanitarianism. In the Commission’s view, ‘it is anathema for the humanitarian relief and assistance sector to have this word appropriated to describe any kind of military action’.64 Obviously there is something cynical about this argument. For many years, the UN has used military force to deliver humanitarian aid, starting with Somalia in 1994. Does such an action then cease to be ‘humanitarian’ just because it was delivered by military force? It is highly doubtful that humanitarian organisations and workers would object to military protection in war zones for fear of the action being seen as the militarisation of humanitarianism. It is possible that, in the future, commentators will seek refuge in the doctrinal exposition of the concept of RtoP by the ICISS in order to justify the use of force against a State without its consent. The argument will go that since RtoP is designed to help States to discharge their responsibility to protect their people, it is a benevolent act taken for altruistic reasons, reasons that are ensconced in the six conditions prescribed by the ICISS to guide RtoP. Thus, the contention will be that the use of force by the international community comes at a great cost, and is something that the community resorts to only because a State is unable to protect its own people and cannot even take advantage of the assistance rendered to it by the international community to achieve that aim. So, the claim will be that by undertaking RtoP, the international community is actually helping the State to exercise

Adem ola A b as s / 232

its sovereignty, which, in RtoP vocabulary, means responsibility towards people, not control over them. The State that is the beneficiary of such largesse cannot be seen to reject help from concerned outsiders. Clearly, the new meaning of sovereignty drawn up by the ICISS was skillfully delivered to States through a process that was apparently cajoling, but subliminally akin to a gentle blackmail.

7 Conclusion The emergence of RtoP as an international norm in 2005, five years after the adoption of the Millennium Development Goals (MDGs), undoubtedly reflects the mood of the international community and its desire to rigorously concern itself with improving the lot of humanity and protecting human lives from wanton destruction, both natural and, more importantly, man-made. To be sure, 2005 was not the first time the world had sworn to ‘never again’ allow the scourges of war to blight humanity, something that has already happened several times over. It did so immediately after the end of the Second World War, did so again after nearly one million lives were exterminated in Rwanda under the watch of UN peacekeeping forces. Yet, like a recidivist criminal, the international community will be taken prisoner by the shenanigans of international politics, even before the ink dries on the pages where the mantra has once again been inscribed. The Darfur Crisis leaves a somewhat bitter pill in the mouth of a resolute international community. It was nearly five years after the catastrophe had begun before the world began to engage seriously to protect human lives in Darfur. It mattered little that the Darfur Crisis, which began in 2003, worsened from 2005, the same year the world re-committed itself to protecting human security. There is a great desire to leave the core tasks of protecting human lives to the Security Council. The combined provisions of the UN Charter, the clear preference of States that participated in the 2005 World Summit, and the various efforts that predated that summit, such as the salutary ICISS report reviewed above, all demonstrate that the greater pArt of the world earnestly desires that the Security Council take full charge. However, history also tells us that the UNSC is always found wanting in the darkest moments of humankind, when decisiveness, courage and forthrightness are crucial for the future of humanity. Many times over, Africa has deliberately or inadvertently become the victim of the Security Council’s most profound inaction. Asking Africans to once again trust a body that has proved several times to be totally useless when their lives are at stake is thus like squeezing a stone to yield water. Yet, the dictates of civilisation, the spirit of comity and the gargantuan privileges of camaraderie impel Africans to once again entrust the Security Council with the sacred responsibility to protect them from harm. In entertaining this request, however, Africans clearly reserve for themselves the right to go it alone, if and whenever

T h e Af r i c an U ni on a nd Rt o P / 233

they deem fit. This is, to be fair, a small price for the Security Council to pay for squandering its legitimacy.

Notes 1 Serbia and Montenegro v Canada (& 7 other NATO States) [2004] ICJ Rep 4. 2 UNGA ‘2005 World Summit Outcome’ (2005) UN Doc A/60/L 1 (WSO Document). 3 J Sarkin, ‘The Role of the United Nations, the African Union and Africa’s Sub-Regional Organisations in Dealing with Africa’s Human Rights Problems: Connecting Humanitarian Intervention and the Responsibility to Protect’ (2009) 53 JAL 1 at 9. 4 For a survey of the origins of RtoP, see C Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ (2007) 101 AJIL 99; K Kindiki, ‘International Law on Trial: The Darfur Crisis and the Responsibility to Protect’ (2007) 9 IntlCLRev 445473; K Kindiki, ‘The Normative and Institutional Framework of the African Union relating to the Protection of Human Rights and the Maintenance of International Peace and Security: A Critical Appraisal’ (2003) 3 AfrHRLJ 97; A L Bannon, ‘The Responsibility to Protect: The UN World Summit and the Question of Unilateralism’ (2005-2006) 115 YaleLJ 1157; M Kalkman, ‘Responsibility to Protect: A Bow Without an Arrow’ (2009) CSLRev 75; P D Williams, ‘From Non-Intervention to Non-Indifference: The Origins and Development of the African Union’s Security Culture’ (2007), 106/423, AfrAff 253; J Sarkin (n 3); C C Joyner, ‘ “The Responsibility to Protect”: Humanitarian Concern and the Lawfulness of Armed Intervention’ (2006-2007) 47 VaJIL 693, 1. 5 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) (ICISS Report). 6 These will include when a State defends itself against armed attack (Art 51) UN Charter, when the Security Council authorises an enforcement action against such a State (Chapter VII) or whenever States use force against such a State, if it had been a former enemy State during the Second World War on the basis of Art 107 of the Charter. This latter article is now widely considered obsolete, given that all former enemy States – Germany, Italy and Japan – are now members of the UN. A possible fourth ground – which this writer pioneered and which has been now reflected in the constitutions of such organisations as the AU and ECOWAS – is when a State agrees that force may be used against it by an international organisation to which it belongs, as indeed was the case with ECOWAS’ action against Liberia and Togo in 1997 and 2005 respectively. On this controversial consensual intervention, see A Abass, ‘The New Collective Security Mechanisms of ECOWAS: Innovation and Problems’ (2000) 5(2) JC&SL 211; A Abass, Regional Organisation and the Development of Collective Security: Beyond Chapter VIII of the UN Charter (HArt Publishing, Oxford 2004), particularly ch 6. 7 ICISS Report (n 5). 8 Ibid para 1.40. 9 Ibid para 1.41. 10 WSO Document (n 2) para 139. 11 Ibid. 12 C Stahn (n 4) 108. 13 Report of the High-Level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’ (2004) UN Doc A /59/565.

Adem ola A b as s / 234

14 African Union (Executive Council), ‘The Common African Position on the Proposed Reform of the United Nation: “The Ezulwini Consensus”’ (Addis Abada 2005) Ext/ EX.CL/2 (VII) at 6 (The Ezulwini Consensus) (emphasis added). 15 High-Level Panel Report (n 13) para 207. 16 Ezulwini Consensus (n 13) B(i). 17 High-Level Panel Report (n 13) para 203. 18 High-Level Panel Report (n 13) para 202. 19 ICISS Report (n 5) at 49, para 6.14. 20 Ibid at 50, para 6.16. 21 High-Level Panel Report (n 13) para 197 22 High-Level Panel Report (n 13) para 256 23 A L Bannon (n 4) at 1160. 24 UNSC Chamber ‘Excerpted Statement on the Open Debate on Maintenance of Peace and Security in Africa’ (2007) accessed 1 April 2011. 25 For analysis and a text of this protocol, see A Abass (2000) (n 6). 26 It is interesting that to date, no single ECOWAS State has challenged the legality of ECOWAS’ enforcement action on the basis of the protocol, although at least one State decided to withdraw from the organisation. 27 Organisation of African Unity (Assembly of Heads of State and Government), ‘Declarations and Decisions Adopted by the Thirty-fourth Ordinary Session of the Assembly of Heads of State and Government’ (1998 Ouagadougo) AHG/OAU/AEC/Dec.1 (II) (Declarations and Decisions) 28 ‘The Crisis Between the Great Socialist People’s Libyan Arab Jamahiriya and the United States of America and the United Kingdom’ AHG/Dec.127 (XXXIV) in Declarations and Decisions (n 26). In operative para 2, the Assembly ‘DECIDES not to comply any longer with Security Council Resolutions 748 (1992) and 883 (1993) on sanctions, with effect from September 1998, if the United States of America and the United Kingdom refuse that the two suspects be tried in a third neutral country pursuant to the verdict of the International Court of Justice by July 1998, date on which the sanctions will be due for review, owing to the fact that the said resolutions violate Art 27 para 3, Art 33 and Art 36 para 3 of the United Nations Charter, and the considerable human and economic losses suffered by Libya and a number of other African peoples as a result of the sanctions’. 29 B Kioko, ‘The Right of Intervention under the African Union’s Constitutive Act: From Non-Interference to Non-Intervention’ (2003) 85 IRRC 852, 807-824, writing that African leaders ‘have shown themselves willing to push the frontiers of collective stability and security to the limit without regard for legal niceties such as the authorisation of the Security Council’, at 821. 30 High-Level Panel Report (n 13) para 197. 31 N J Udombana ‘When Neutrality is a Sin: The Darfur Crisis and the Crisis of Humanitarian Intervention in Sudan’ (2004) 27 HumRtsQ 1149; K Kindiki (2003) (n 4); K Kindiki (2007) (n 4); J Sarkin (n 3). 32 A Cassesse ‘Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’ (1999) 10 EJIL 23; B Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’ (1999) 10 EJIL 1. 33 Serbia and Montenegro v.Canada (n 1) 34 Interestingly, C Gray, International Law and the Use of Force (1st edn, Oxford UP, 2000), at 29, says quite rightly that ‘there was no well-established doctrine of humanitarian inter-

T h e Af r i c an U ni on a nd Rt o P / 235

vention at that time’, but the UK Government had, nonetheless, asserted that it acted out of humanitarian consideration. 35 Ademola Abass (2000) (n 6). 36 Instead, Jack Straw, the then Foreign Secretary of the UK, had claimed, inter alia, that NATO’s action was to support the Security Council resolution against Iraq. 37 Constitutive Act of the African Union (adopted 11 July 2000, entered into force 26 May 2001). 38 Ibid, Art 3, 4. 39 T K Tieku, ‘Explaining the Clash and Accommodation Interests of Major Actors in the Creation of the African Union’ (2004) 103 AfrAff 251. 40 N J Udombana, ‘Can the Leopard Change Its Spots? The African Union Treaty and Human Rights’ (2001-2002), 17 AmUIntlLRev 1177. 41 M Tiyanjana, ‘Reimagining African Unity: Some Preliminary Reflections on the Constitutive Act of the African Union’ (2001) 9 AYIL 3. 42 African Union and Pan-African Parliament, ‘Formation of the African Union, African Economic Community and Pan-African Parliament’ (2000) accessed 6 October 2011. 43 A Abass, ‘The United Nations, the African Union, and the Darfur Crisis: Of Apology and Utopia’ (2007) 54 NILR 414-440. 44 A Abass, ‘The Implementation of Security Council Resolution 1270 in Sierra Leone: New Developments in Regional Intervention’ (2001-2002) 1 MiaIntl&CompLRev 177. 45 WSO Document (n 2) para 138 states that ‘Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability’. 46 WSO Document (n 2) para 139 states that ‘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 manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out’. 47 Some believe that the UN was responsible for the success of RtoP in Kenya. According to Ed Luck, ‘the only time the UN has actually applied [RtoP], was in the case of Kenya, early in 2008 after the disputed elections. When there’s seven or eight hundred people … killed, it was not clear there was full-scale ethnic cleansing, but it could well become that or even something greater, and the UN decided to apply RtoP criteria and to really

Adem ola A b as s / 236

make it the focus of the efforts there. And Kofi Annan, the former … Secretary General who was doing mediation on ground at the time, has said since that RtoP was the lens through which he saw his whole efforts there’, restated in M Schneider, ‘Implementing the Responsibility to Protect in Kenya and Beyond’, accessed 1 April 2011. 48 One of the core requirements of peacekeeping operations is that deployment must be based on consent by the Host State. Although the UN Charter contains no rules on peacekeeping, it is generally believed that customary international law underwrites peacekeeping operations. 49 African Union, Protocol Relating to the Establishment of the Peace and Security Council of the African Union (adopted 9 July 2002, entered into force 26 December 2003) Art 1 (PSC Protocol). 50 Ibid. Art 3(a). 51 Ibid. Art 5 (1) (a), (b). 52 Ibid. Art 7 (1) (f ). 53 Ibid. Art 4. 54 Ibid. Art 7(e). 55 ‘The Member States agree to accept and implement the decisions of the Peace and Security Council, in accordance with the Constitutive Act’. 56 PSC Protocol (n 50) Art 10 (2) (a). 57 Ibid. Art 10(2) (c). 58 Ibid. Art 11(2). 59 Ibid. Art 11(3). 60 Ibid. Art 11(4). 61 Ibid. Art 12. 62 See A Abass, Protecting Human Security in Africa (Oxford UP, Oxford 2010) ch 11 in particular. 63 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN Charter) Art 53(1). 64 Report (n 5) at 9, para 1.40.

16

ASEAN Responses to the Responsibility to Protect Challenges, Opportunities and Constraints Noel M. Morada

1 Introduction This chapter presents an overview of the challenges and constraints in promoting the Responsibility to Protect (RtoP) norms in Southeast Asia, focusing mainly on the potential role of the Association of Southeast Asian Nations (ASEAN) in preventing mass atrocities covered by RtoP. Specifically, it examines the characteristics of states and political systems of members of ASEAN, the political dynamics of the organisation, and to what extent its traditional norms and institutional set-up serve as the main challenges to promoting RtoP in this part of the world. The chapter also identifies some entry points or opportunities for RtoP promotion to gain some ground, notwithstanding the limitations within ASEAN. It also discusses the role of the Asia Pacific Centre for Responsibility to Protect (APRtoP) in promoting RtoP in Southeast Asia through its country programmes and regional engagement, and the extent to which RtoP is appreciated by civil society groups in the region, especially those engaged in peace, conflict prevention and post-conflict rebuilding efforts.

2

The Association of Southeast Asian Nations: An Overview

ASEAN came into being in August 1967, following several failed attempts at regional cooperation in Southeast Asia. The precursors to ASEAN were the Association of Southeast Asia (ASA) and the MAPHILINDO (Malaysia, Philippines and Indonesia), which both failed to develop because of territorial conflicts among the founding members. The Bangkok Declaration of 1967, which created ASEAN, essentially

No el M. Mor ad a / 238

underscored the core principles of non-interference and respect for territorial integrity and sovereignty of states as the basis of ASEAN cooperation. These traditional norms served as the main anchor on which the original five members (and later the rest who joined) managed their relations and pursued the organisation’s goals and objectives through consultation (mushawarah) and consensus (mufakat). In the context of the Cold War environment in Southeast Asia at the time, the traditional norms of ASEAN helped prevent inter-state conflicts among its members, even as it also served as a strong glue that ensured ASEAN’s solidarity vis-àvis external threats (such as Vietnam’s invasion of Cambodia in the late 1970s). That the founding members of the organisation were still in the process of nationbuilding following the post-colonial period in Southeast Asia also made the traditional norms quite important. In particular, ASEAN leaders have argued that the creation of ASEAN provides regional peace and resilience, which are both necessary for ensuring the national resilience that would allow member states to focus on national development. In practice, the principles of non-interference and respect for sovereignty also imply that member states of ASEAN are supposed to tolerate differences in the political systems of countries in the region. Members are therefore expected to refrain from openly criticising governments on matters that are considered to be the internal political affairs of other members, which has become the unwritten rule or convention in ASEAN. Thus, unlike in the European Union (EU), where adherence to certain democratic principles is a precondition for being accepted into the Union, ASEAN expanded its membership to 10 without regard to the kind of political regime or ideology of its new members. Indeed, despite some reservations in regard to accepting Myanmar or Burma in 1997, which has been ruled by a military junta since the 1990s, this did not serve as an obstacle to its admission into ASEAN.1 If anything, diversity of political beliefs and values in ASEAN are tolerated and respected to some extent. For instance, the democratic member states of ASEAN, while recognising the importance of promoting human rights in the region, also understand that other member states may not be ready to have a more open political system, even as human rights norms must evolve and are internalised within each country. Quite unlike the supranational EU, where member states have surrendered part of their sovereignty, ASEAN is an inter-governmental organisation that still values and protects the sovereignty of its members. Indeed, despite the existence of an ASEAN Charter since 2008 that includes obligations and responsibilities on the part of its members, ASEAN does not provide for sanctions or expulsion of erring members. This therefore limits the ability of ASEAN to ensure compliance with agreements. More importantly, the Charter still upholds the consensual decisionmaking process in ASEAN, which effectively gives member states veto powers. The creation of the ASEAN Inter-Governmental Commission on Human Rights (AICHR) in 2009, for example, became a very difficult process, as ASEAN members had major disagreements on the nature and powers of the regional human rights

ASEAN R es p ons es t o Rt o P / 239

body. Most members were not in favour of giving it sanctioning and monitoring powers, which ultimately resulted in a watered-down version of the terms of reference of the AICHR: that is, it is mainly a consultative body tasked to engage in a dialogue about and the promotion of human rights education in the region. Indeed, one of the mandates of the AICHR is to encourage member states of ASEAN to ratify international agreements and conventions on human rights. The commission is not tasked to monitor the state of human rights in member states, nor was it mandated to sanction member states who fail to protect human rights in their own territory. The effectiveness of the AICHR is also constrained by the fact that only four of the ten members have their own national human rights commissions; namely, Indonesia, Malaysia, the Philippines and Thailand. The exercise of veto powers by ASEAN members has also been demonstrated in the way that some leaders have opposed discussions of internal conflicts obtaining in member states. For example, former Thai Prime Minister Thaksin Shinawatra reportedly threatened to walk out of the ASEAN Summit in 2005 if the issue of the conflict in southern Thailand was raised in the agenda of the leaders’ meeting. In the ASEAN Summit in 2009 in Thailand, a planned interface dialogue between the ASEAN leaders and civil society groups was aborted because the leaders from Cambodia and Myanmar refused to recognise the organisations represented in this meeting. Notwithstanding the above, however, it is important to note that there have been certain changes within ASEAN, more than 40 years after its creation. Largely as a result of the Asian Financial Crisis in 1997, significant political transformations have taken place in the region. For one, Indonesia has transitioned to a more open, democratic order after Suharto stepped down in 1998. The crisis also forced ASEAN to focus more on how it will cope with the economic rise of China and move towards deeper economic integration. The aftermath of 9/11 also had an impact on ASEAN countries, as the region became a second front in the fight against international terrorism following the Bali bombing on 12 October 2002. Terrorism in the region was viewed by some experts and policymakers, for example, as linked to poverty and social inequality more than just a misplaced hatred of American/Western culture or values. These crises undoubtedly led to rethinking within ASEAN about the need to address social development problems more seriously, even as the region also faced the emergence of non-traditional security issues (including pandemic diseases, natural disasters, environmental problems, transnational crimes and human trafficking, among others). Thus, in 2003, with Indonesia as chair of ASEAN, the idea of transforming ASEAN into a more people-centred organisation came to the fore, as spelled out in the Bali Concord II. Specifically, the declaration envisioned an ASEAN Community composed of three pillars – security (later changed to political security), economic, and socio-cultural – which are expected to move the level of cooperation among member states to a higher plane. The ASEAN Security Community, for example, envisaged regional cooperation taking place in a ‘just, democratic,

No el M. Mor ad a / 240

and harmonious environment’. It is significant to note that, for the first time in an ASEAN official document, the word ‘democracy’ was used. Civil society groups in the region saw an important ‘opening’ in the ASEAN Community idea, particularly in engaging governments on a range of non-traditional security issues, such as human rights protection, the rule of law and good governance. To some extent, and largely because of the Indonesian initiative and the support of more democratic members, the momentum in transforming ASEAN into a rulesbased, people-centred community continued, in which the priority focus of ASEAN will be the security and welfare of its people rather than the traditional security of states. This culminated in 2005 and 2006 with the creation of the Eminent Persons Group (EPG) that was tasked to draft the blueprint for the ASEAN Charter. Some radical proposals were made by the EPG, which included proposals for abandoning consensual decision-making, the inclusion of sanctions against erring members, and, more importantly, the promotion and protection of human rights and adherence to certain norms such as international humanitarian law and the protection of people against genocide and ethnic cleansing. However, the High Level Task Force (HLTF) that was created to draft the ASEAN Charter – composed mainly of bureaucrats and retired diplomats from member states – did not adopt the radical proposals of the EPG. To be fair, however, the HLTF included the creation of a regional human rights body in the ASEAN Charter. More importantly, apart from upholding the traditional norms of ASEAN, the ASEAN Charter also included people-centred principles that pertain to adherence to the rule of law, good governance, the principles of democracy, respect for fundamental freedoms, the protection of human rights, and adherence to the United Nations (UN) Charter and international laws, including international humanitarian law.

3

Promoting RtoP in ASEAN: Issues and Challenges

Member states of ASEAN have basically expressed support for RtoP principles based on the 2005 World Summit Outcome Document (WSO Document), even though some of its members have expressed reservations or concerns about how these principles are to be implemented.2 In fact, even Myanmar in the 2009 UN General Assembly (UNGA) debate argued that there was already a consensus about RtoP, and supported the Secretary-General’s appeal to move the debate towards implementing the 2005 agreement. It must be noted, however, that ASEAN members still believe that RtoP upholds state sovereignty, even as some have underscored the importance of adhering to the UN Charter and international law if and when the international community has to respond to humanitarian crisis situations.3 That RtoP should resonate in Southeast Asia is not surprising, despite the traditional norms that member states of ASEAN continue to adhere to. For one, the region experienced its worst mass atrocity in contemporary history when the Khmer

ASEAN R es p ons es t o Rt o P / 241

Rouge ruled Cambodia in the mid-1970s, also known as the ‘Killing Fields’ period in Khmer history. Other conflict-related mass atrocities ­– such as East Timor in the 1990s, ongoing violence in southern Thailand, and the Maguindanao massacre in 2009 – have yet to be resolved, which also make RtoP even more relevant in the long run, especially in the context of building capacities of ASEAN states in preventing crimes against humanity. In the case of the Maguindanao massacre, for example, President Arroyo signed the first domestic law (RA9851) against genocide and crimes against humanity three weeks after the incident. Meanwhile, Myanmar continues to be a problem for ASEAN and the international community, given the ruling military junta’s record of human rights violations and policies towards certain ethnic groups in the country. In fact, the humanitarian crisis in that country following the devastation brought by Cyclone Nargis in 2008 further underscored the need to examine how RtoP may or may not be invoked in certain situations. There is no question that the international community’s outrage against the military junta’s decision not to accept international humanitarian assistance was to some extent justified. In fact, some international legal experts have argued, albeit erroneously, that the military junta deliberately withheld humanitarian assistance to Cyclone Nargis victims for two weeks, and thus concluded that it was guilty of committing a crime against humanity. But this is an overstretch, because it negates the political context – in particular, the paranoia of the junta about humanitarian assistance being used as a pretext for intervention – that served as the main obstacle for the state in Myanmar to act more appropriately in the given situation. It also fails to consider the possibility that the junta did not have the capacity to deal with the devastation more expediently. These pro-interventionist RtoP advocates have also ignored the fact that the military junta eventually accepted international humanitarian assistance, but only through ASEAN’s backdoor diplomacy and non-coercive ‘intervention’. That ASEAN did not openly invoke RtoP as justification for its ‘intervention’ indicates that there are in fact alternative measures that could be adopted by regional organisations in dealing with crisis situations in their own backyards. In the larger regional context, an important component of promoting RtoP in ASEAN is to ensure that its members adhere to treaties and international laws protecting human rights, prohibiting genocide, and protecting women and children. While many ASEAN member states are signatories to these treaties and international agreements, a number of them have yet to ratify these. For instance, among ASEAN members, only Cambodia has ratified the Rome Treaty that created the International Criminal Court (ICC). Moreover, only seven members of ASEAN are parties to the 1948 Genocide Convention. This may well be an important priority for the AICHR, given that one of its important mandates is to encourage its members to ratify existing international human rights treaties and conventions. Notwithstanding the existing limitations within ASEAN, there are also opportunities or entry points for promoting and internalising RtoP as part of the process of norm building in the region. The role of the ASEAN Chair, for instance, is a critical

No el M. Mor ad a / 242

one, as the host member is able to set the priority agenda during the ministerial and summit meetings of member states. In particular, Indonesia and other democratic states in ASEAN could push the envelope, so to speak, in institutionalising the protection of human rights in the region and in preventing mass atrocities covered by RtoP. Initiatives by other members in regard to deepening the level of engagement with civil society groups in Southeast Asia provide another opportunity for building a regional constituency around RtoP. Track two and track three interactions4 with ASEAN member states continue to play an important role in generating ideas and policies that could help the regional organisation address many of the non-traditional issues, including prevention of mass atrocities, which confront the region.

4

Towards a Bottom-Up Approach in Promoting RtoP in Southeast Asia

Promoting RtoP in Southeast Asia is one of the mandates of the Asia Pacific Centre for the Responsibility to Protect, set up in 2008. The main strategy in doing this is through the Centre’s country programmes (for example, those for Cambodia, Indonesia, the Philippines and Thailand) that basically focus on increasing the level of knowledge and awareness about RtoP, as well as building domestic constituencies around this norm. This bottom-up approach essentially springs from the initial work of this author in 2005, which is a roadmap on RtoP in Southeast Asia that was commissioned by the Canadian Embassy in Manila. Through a series of workshops and interviews in various ASEAN capitals, a number of recommendations were generated from that initial study that identified certain steps in promoting RtoP both at the domestic and regional levels. Among others, these include the translation of RtoP documents (such as the International Commission on Intervention and State Sovereignty (ICISS) Report, UN resolutions and related documents) into major Southeast Asian languages; inclusion of RtoP in university curricula; and workshop and training seminars for teachers and educators, civil society groups, local government officials, law enforcement personnel and government/ state bureaucrats. Developing teaching and seminar materials on RtoP has also been part of the recommendations. In June 2009, this author organised the first workshop in Manila on RtoP Constituency Building in the Philippines, with the support of the Centre. Some 50 participants from various sectors – government, civil society groups, academic/research organisations and the media – took part in the two-day workshop that attempted to examine the state of knowledge about RtoP and the role of these sectors in promoting it in the Philippines. Retired diplomats and senior officials from the Department of Foreign Affairs (DFA), particularly from the UN office, and the Foreign Service Institute, along with those from the National Security Council and the Department of National Defence, actively engaged in the debate and discussions

ASEAN R es p ons es t o Rt o P / 243

with representatives from other non-governmental sectors about RtoP and why the Philippines should support it. The workshop also came up with a number of proposals from various sectors about practical steps that might be taken to increase the level of awareness and understanding about RtoP in the Philippines. For participants from the government sector, for example, the proposals include the holding of in-house seminars and training courses for mid-career officials and officers on RtoP; the development of handbooks or manuals for law enforcement and soldiers, especially those who are assigned in conflict areas; and participation in workshops or training related to capability building (such as the development of early warning systems, conflict prevention and the protection of civilians in armed conflicts). The significant role that the Manila workshop played in providing policy inputs to the UN office in the DFA during the UN General Assembly Dialogue on RtoP in September 2009 needs to be highlighted. Specifically, the UN office utilised the inputs from the workshop (including post-workshop exchanges with the Asia Pacific Centre for RtoP) in drafting the Philippine position in the UNGA.5 The contents of the speech by then Philippine Ambassador to the UN Hilario Davide Jr. clearly demonstrate this. Thus, based on this actual experience, the bottom-up approach in building awareness about RtoP has resulted in a positive outcome at the international level, which is the change in position of the Philippines in the UN. Apart from deliberate efforts in promoting RtoP at the domestic level, some unexpected – and at times tragic – events have taken place that have also contributed to increasing the level of public awareness about preventing mass atrocities. In the Philippines, for example, public outrage about the Maguindanao massacre in November 2009 that killed close to 60 civilians, including some 30 journalists, exerted tremendous pressure on former President Gloria Arroyo to arrest some members of her erstwhile close political ally – the Ampatuan clan – and then place the entire province under martial law for a limited period. Three weeks following the incident, Mrs. Arroyo signed the first domestic law (RA 9851) against genocide and crimes against humanity, which interestingly had already been passed by the Philippine Congress approximately five months before the heinous crime was committed. The law, however, did not take effect until it was published in two major dailies in March 2010. To date, the trial of the members of the Ampatuan clan, along with some 157 other people charged in the Maguindanao massacre, is yet to begin. The new government of President Benigno Aquino III nonetheless promised that it would give priority to bringing justice to the victims of the massacre. Meanwhile, the Asia Pacific Centre for RtoP also conducted its first workshop on RtoP constituency-building in Phnom Penh, Cambodia in June 2010, in which various representatives from government, civil society, academia and the media representatives participated. Just like the Manila workshop, it also generated a number of proposals for increasing the level of awareness and knowledge about RtoP in Cambodia and in building domestic support for the norm. Given the traumatic experience under the Khmer Rouge and the ongoing trial of some of its leaders that are still alive, RtoP no doubt resonates very strongly in Cambodian society. Indeed,

No el M. Mor ad a / 244

given its tragic historical experience, of all the members of ASEAN, it is Cambodia that should be at the forefront of promoting RtoP in the region. In fact, as already mentioned earlier, it is the only country in ASEAN that has ratified the Rome Treaty. Ironically, however, it has yet to have its own national commission on human rights, even as it is still in the process of building its capacity as a nation-state to deal with corruption, the promotion of the rule of law and good governance. Thus, the main challenge for Cambodia in promoting RtoP at the domestic level is the institutionalisation of its democratic framework where respect for human rights and the rule of law are consistently upheld. Beyond country programmes, the Centre is also involved in the track two study group on RtoP in the Council for Security Cooperation in the Asia Pacific (CSCAP). Specifically, its former executive director, Dr. Alex Bellamy, has been engaged in an RtoP Fund-supported study that aims to generate agreement among participating states in the ASEAN Regional Forum (ARF) on how to translate the 2005 World Summit consensus into specific policy actions. The CSCAP study group on RtoP hopes to have their recommendations considered by the ARF. Among the ideas that have been discussed in the study group are the development of an early-warning system or mechanism for the region, which had already been formally supported in ARF even before the study group on RtoP was formed.

5

Civil Society and People-to-People RtoP

In the process of adopting a bottom-up approach to RtoP promotion in Southeast Asia, an important question has been raised about the value added of promoting the norm or principles to the advocacy activities of civil society groups, many of which have been involved in conflict prevention and peacebuilding efforts. First, it is important to note here that many non-governmental organisations (NGOs) in the region have not heard of RtoP; and some of those that have heard of it consider RtoP as essentially advocating the protection of human rights. However, NGOs that have a much deeper understanding of the norm consider RtoP to be an important framework that could be adopted in their conflict prevention advocacy. For some NGOs in the Philippines, for example, RtoP may be a useful tool in engaging or partnering with government and law enforcement agencies (including the military) in creating mechanisms for preventing genocide and other forms of mass atrocity. In addition, they believe that RtoP is also the responsibility of non-state actors.6 A good example (at least based on Philippine NGOs’ experience in Mindanao) in which NGOs could translate RtoP into practice is the creation of ‘peace zones’7 in conflict areas, which both the military and armed rebels are expected to abide by and respect. Thus, a ‘people-to-people’ RtoP is possible, whereby NGOs could undertake efforts in the protection of people or civilians without having to depend on the national or local governments to prevent, or respond to, mass atrocities. Civil society groups could also contribute to building an early-warning system or

ASEAN R es p ons es t o Rt o P / 245

mechanism on the ground, in partnership with local government units and law enforcement agencies, to prevent crimes covered under RtoP. From an academic perspective, some scholars unfamiliar with the terrain in Southeast Asia may be dismissive of the value added of RtoP to the work of NGOs involved in peace and conflict prevention, even as they assume that many of these groups have been working on mass atrocities prevention without being consciously aware of RtoP. However, one could argue that civil society groups are able to adopt (and also adapt) certain concepts or norms, such as RtoP, as a useful tool or framework to strengthen their advocacy work, as well as to enlarge their network of NGOs that are supportive of each other’s advocacies. To some extent, the issue is not about RtoP’s value added per se but its ‘linkage politics’ with other relevant issue areas, such as human rights protection, the promotion of human security, the rule of law and good governance – all of which resonate strongly with many groups and communities in Southeast Asia. Thus, RtoP coalition building provides an umbrella for NGOs and civil society groups to work in synergy, based on their mutual interests and advocacies. In practical terms, as NGOs become substantively knowledgeable of RtoP norms and principles, they could play a role in exerting pressure on states to honour their commitments based on the 2005 WSO Document, including paragraphs 138 and 139, and even contribute to building the capacities of states to prevent mass atrocities. More specifically, they may push for passage of domestic laws against genocide and crimes against humanity, campaign for ratification of the Rome Treaty that created the ICC, and work for the creation of national human rights commissions, especially in countries that still do not have them. Such efforts are, of course, more effectively made at the domestic level, but their long-term regional impact should not be underestimated. Indeed, there are more entry points or opportunities for RtoP constituency building in the domestic sphere, especially in more democratic member states, where civil society groups are more vibrant. The spill-over effects at the regional level may take longer to manifest, however, given the existing constraints within ASEAN.

6 Conclusion Based on the foregoing discussion, it is clear that RtoP advocates face a number of challenges and constraints in the region. Apart from the traditional norms that invoke non-interference and respect for state sovereignty – which are still guarded jealously by member states of ASEAN – the low level of awareness and knowledge about RtoP in the countries of Southeast Asia is a fundamental problem that needs to be overcome. A bottom-up strategy that focuses on domestic constituencybuilding around RtoP is therefore an important step in promoting the internalisation of the norm in the region. While the primary responsibility for protecting people against genocide and other forms of mass atrocities rests on states, civil society groups and other non-state actors also see themselves as sharing that responsibility.

No el M. Mor ad a / 246

Notwithstanding the current constraints within ASEAN, a number of opportunities or entry points exist in making RtoP an important part of norm-building in the region.

Notes 1 A major strategic consideration in accepting Myanmar or Burma into ASEAN was the need to deny China the opportunity to dominate or exert influence in that country, more than the nature of the political regime. Apparently, the military junta in Myanmar promised a roadmap to democracy to allay the concerns of other ASEAN members as well as the organisation’s Western dialogue partners, regarding the legitimacy of the military regime. At the time, Thailand and other member states also argued for the need to undertake ‘constructive engagement’ with the military junta, as sanctions had failed to bring about reform in that country. 2 For example, there are members of ASEAN that are wary of the military intervention aspect of RtoP and see this as violating the traditional norm of non-interference. There are also concerns about ‘double standards’ being used in making judgements about states failing to protect their people against mass atrocities, as well as using RtoP as a pretext for invasion or intervention by more powerful states. 3 For a more detailed discussion of the nuances in positions of ASEAN member states in the 2009 UN General Assembly debate on Responsibility to Protect, see ‘Implementing the Responsibility to Protect: Asia Pacific in the General Assembly Dialogue’ (The Asia Pacific Centre for the Responsibility to Protect Report) Brisbane, Australia, October 2009 accessed 13 April 2011. 4 Track two diplomacy refers to the role of academic and think tank institutions in providing policy inputs to the formal or official track (also known as track one). Track three refers to engaging civil society groups and non-governmental organisations in the policy process. 5 The UN office in the Department of Foreign Affairs in Manila is primarily responsible for crafting the policies and official position of the Philippines on various issues in the UN. 6 This is based on the views expressed by civil society groups in the Philippines who participated in the first RtoP Constituency Building Workshop in Manila in June 2009. 7 For a discussion of ‘peace zones’, see M Coronel Ferrer, ‘Institutional Response: Civil Society’ (Background paper for the ‘Philippine Human Development Report 2005: Peace, Human Security and Human Development in the Philippines’ 7 March 2005).

17

The Responsibility to Protect and Regional Organisations Where Does the European Union Stand? Jan Wouters, Philip De Man and Marie Vincent

1 Introduction In September 2005, the United Nations General Assembly (UNGA) unanimously endorsed the World Summit Outcome Document (WSO Document), paragraphs 138 through 140 of which recognise the individual and collective responsibility of states to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity (RtoP).1 The document inter alia explicitly expresses the preparedness of the international community to ‘take collective action … through the Security Council, in accordance with the Charter, including Chapter VII … in cooperation with relevant regional organisations as appropriate’.2 The importance of involving regional organisations in all aspects of the complex task of safeguarding civilian populations from the scourge of mass atrocities is also evident from the reference in paragraph 139 of the WSO Document to the responsibility of the international community ‘to use appropriate diplomatic, humanitarian and other peaceful means [to this end], in accordance with [Chapter VIII] of the Charter’. Chapter VIII, it is recalled, covers the relationship between the UN and regional agencies or arrangements.3 The 2005 declaration – reaffirmed by the United Nations Security Council (UNSC) in April 20064 – was seen by many as a historic step towards the entrenchment of an emerging international norm, developed only four years earlier by the International Commission on Intervention and State Sovereignty (ICISS).5 As things turned out, however, this was only the beginning of a fastidious, ongoing process of consensus-building in support of RtoP. The RtoP notion has endured contest and at times virulent opposition, including from some of its earlier promoters, and the meaning and implications of the concept as of yet remain unclear. UN Secretary-General (UNSG) Ban Ki-moon has nevertheless shown determination to

J a n W ou t er s , P hi li p D e M a n a nd M a rie Vin cen t / 248

move the debate forward in order to ‘turn promise into practice, words into deeds’.6 Taking steps to ‘operationalise’7 RtoP within the UN system, the Secretary-General issued a report in January 2009 on the implementation of the responsibility to protect.8 However, the role of regional organisations received only piecemeal attention in this otherwise comprehensive report.9 By and large, the importance of regional organisations and their relationship with the UN in operationalising the RtoP concept has eluded clarification. During the large-scale interactive dialogue and debate held at the UNGA in July 2009, statements on the role of regional arrangements and agencies in implementing RtoP were few and far between, entering only the discourse of regional organisations themselves and of predominantly small countries.10 Those statements that did address the issue typically lambasted the lack of institutional and organisational cooperation with the UN in the context of RtoP, acknowledging the vast possibilities for improved coordination in this respect. While these statements appear to indicate a common appreciation of the need to involve regional players in the operationalisation of RtoP, it remains unclear what role the panoply of regional organisations should play. The present contribution therefore aims to clarify, first, how the UN envisages the role of regional organisations in the implementation of RtoP, as contemplated both in RtoP-specific official UN documents (section 2) and in the UN Charter (section 3). Second, we will try to distil how the European Union (EU) itself conceives its capacity to contribute to operationalising the responsibility to protect through an overview of the Union’s documents and statements on RtoP (section 4).

2

Involving Regional Organisations in the RtoP Framework: the View from the UN

The present section aims to assess the extent to which regional organisations can contribute to realising the responsibility to protect, taking the development of the concept by the UN as a starting point. The analysis will focus on both the raison d’être of the RtoP notion as offering a palatable alternative to humanitarian intervention (2.1) and on the practical implementation of the concept through its three constitutive pillars (2.2).

2.1 Sovereignty concerns

RtoP was born from the debate on ‘the right of humanitarian intervention’, which, in the 1990s bitterly divided the international community with dreadful consequences in Rwanda and Bosnia. These experiences made clear that, if the international community was to effectively prevent the recurrence of such humanitarian catastrophes, it had to overcome, inter alia, the ‘sovereignty versus intervention’ dilemma that so plagued the humanitarian intervention debate. The 2001 ICISS Report did so by shifting the terms of the debate from ‘intervention’ to ‘protection’, and thus defend-

Rt o P an d R eg i on al Orga nisatio ns / 249

ing a new, positive conception of state sovereignty: ‘from sovereignty as control to sovereignty as responsibility’.11 Departing from the state-centred, Westphalian notion of sovereignty based on the principles of territoriality and non-intervention, the idea of ‘sovereignty as responsibility’ holds that sovereign states are responsible for the welfare and protection of the population living within their jurisdiction, and that they are accountable for discharging this responsibility both internally to their own population, and externally to the international community. A particularly crucial factor in overcoming states’ typical reluctance to accepting caps on their sovereignty is the close involvement of regional organisations in combating mass atrocities.12 Due to their geographical proximity, close linkage to and intimate understanding of the roots of local conflicts, the participation of regional organisations in RtoP situations is crucial in order to assuage possible concerns of the parties involved over allegedly interventionist measures that are feared to affect their national interests.13 As such, regional action in the context of crisis management has been identified as a strong factor able to ‘contribute to a deeper sense of participation, consensus and democratisation in international affairs’.14 At the same time, it is clear that states are generally more readily inclined to contribute troops to intervening forces that are led by or in cooperation with regional organisations of which they are a member, or for which they have more affinity than for a global intergovernmental organisation. Finally, from the viewpoint of the UN, wellcoordinated cooperation with regional organisations is also likely to significantly lighten the burden of exercising the arduous task of safeguarding international peace and security. Regional organisations can thus act as middle-level mediators reconciling two other categories of addressees of the responsibility to protect: national governments and global international organisations. Indeed, notwithstanding the advantages of closely coordinated action with regional organisations, national ownership of the RtoP process is most directly realised if the relevant measures are taken by local authorities. Therefore, whilst RtoP puts the primary responsibility to protect populations from mass atrocity crimes with the states themselves, this responsibility yields to the international community – assisted therein by regional organisations – should states prove unable or unwilling to protect their populations. The mediating role of regional organisations in mitigating fears of biased interventionism implies that there are limits to the means that these regional players can employ in combating mass atrocities under the RtoP moniker. Generally speaking, the international community may employ all reasonable means to exercise this responsibility, including the use of force. However, such military measures should be envisaged only as a last resort, along clear criteria, when all other pacific means have been exhausted.15 The ICISS Report confirms that the legal capacity to authorise the use of force rests first and foremost with the UN Security Council, pursuant to Article 42 of the UN Charter. According to the ICISS, however, should the UNSC fail to act upon a proposal for military intervention in the case of mass atrocities, or fail to deal with such a proposal within a reasonable time, it should be possible for ‘collective inter-

J a n W ou t er s , P hi li p D e M a n a nd M a rie Vin cen t / 250

vention [to] be pursued by a regional or sub-regional organisation acting within its defining boundaries’. The report adds that such action could possibly be approved ex post facto by the Security Council.16 The WSO Document dismisses such regional military RtoP, however, and clearly subjugates regional organisations to the UNSC seal of approval by expressly limiting the possibility of military interventions to collective action undertaken through the Security Council, in cooperation with regional organisations, as appropriate.17 The role of regional organisations as currently conceived by the UN is thus largely limited to non-military initiatives and to assisting the UN in coercive interventions.

2.2 Implementing the Three Pillars of RtoP

As conceived by the ICISS Report, the responsibility to protect embraces three specific responsibilities: the responsibility to prevent, the responsibility to react and the responsibility to rebuild. In its interpretation of the concept, the UN has favoured an approach that sticks to the wording of the 2005 WSO Document. As pointed out by Edward Luck18 and subsequently reasserted in Ban Ki-moon’s 2009 report to the General Assembly, the responsibility to protect rests on the following three pillars: 1. An affirmation of the primary and continuing legal obligation of states to protect all populations within their territory – whether citizens or not – from genocide, war crimes, ethnic cleansing and crimes against humanity. This applies not only to the actual listed crimes, but also to their incitement. 2. A commitment by the international community to assist states in meeting these obligations. Neighbours and regional organisations have a big role to play here, and the South-South dialogue must in this perspective be further promoted, alongside North-South processes. Edward Luck observes that it is also important to continue looking at, and learning from, positive cases, and to develop mechanisms of prevention better adapted to RtoP situations, distinct from existing conflict prevention mechanisms. Indeed, genocide and other mass atrocity crimes may often not be the result of conflicts. 3. An affirmation by the UN member states of their responsibility to respond in a timely and decisive manner, in accordance with the UN Charter, to help protect populations from the four listed crimes and violations. Response options include a broad range of pacific measures – diplomatic, political or economic – that do not necessarily require the Security Council’s consent. Enforcement measures under Chapter VII of the UN Charter may however sometimes be necessary. The use of military force, which has absorbed most of the discussions, is in fact only a small part of the response options. The early and targeted deployment of troops may also be considered as a preventive measure, as the case of the United Nations Preventive Deployment Force (UNPREDEP) in Macedonia successfully highlighted.

Luck insists that in order to retain its relevance and political legitimacy, RtoP should remain confined to the four most extreme crimes and violations with which

Rt o P an d R eg i on al Orga nisatio ns / 251

it is associated. In this sense, the concept is regarded as ‘narrow but deep’, in that an entire gamut of prevention and protection tools may be employed in order to counter the dangers emanating from these four types of mass atrocities. These tools necessary for the implementation of RtoP run deep, whether at the level of the UN, regional and sub-regional organisations, member states or civil society organisations. Considerable work remains to be done, however, in order to activate this diverse toolbox so as to really ‘change words into deeds’ and ‘operationalise’ the concept of RtoP. The notion needs to be further explained and clarified, and more adequate mechanisms of early warning and early response must be developed. Ultimately, in its broadest scope, RtoP must become realised both within the reasoning, as well as the daily work of institutions. The magnitude of the challenges ahead was stressed in an address by Ban Ki-moon on 15 July 2008, in which he reaffirmed his ‘deep and enduring’ personal commitment to what he described as ‘one of the more powerful but less understood ideas of our times’.19 As the next step in a ‘long journey’, he issued a report on the implementation of RtoP in January 2009, drafted on the basis of Edward Luck’s consultations and submitted to the General Assembly awaiting member states’ feedback.20 Thorough though the 2009 report appears to be in its lengthy discussion of RtoP, it is significantly lacking in offering a comprehensive take on the role of regional organisations in the implementation of the notion.21 At no point does it outline an inclusive approach to combating mass atrocities in close coordination with regional players, and only a select number of regional organisations is identified as having developed valuable tools for operationalising RtoP (see infra). Nevertheless, the report does shed some light on how the UN thinks regional organisations can best contribute to the implementation of the three pillars upon which the responsibility to protect rests, as identified previously. First, the role of regional organisations in fulfilling the protection responsibilities of states versus their own populations is largely limited to offering technical assistance in state-to-state learning processes. Limited though this role may be, the experience of the EU has shown that establishing threshold membership standards of a political and economic nature can indeed provide a major impetus for prospective members to bring about significant institutional and legislative grass-roots changes to the benefit of their populations. The 2009 implementation report of the UNSG asks regional organisations to consider introducing RtoP criteria into these and other peer review mechanisms established at the regional level.22 This recommendation clearly draws on the idea of the EU integration process as one of the most successful models of post-WWII conflict prevention.23 As we have argued, the second RtoP pillar to a large extent relies on the role of regional organisations as middle-level mediators in order to render assistance of the international community to states in meeting their primary responsibility more palatable. To some extent, this appreciation of regional organisations is confirmed by the implementation report, in which Ban Ki-moon identifies regional

J a n W ou t er s , P hi li p D e M a n a nd M a rie Vin cen t / 252

and sub-regional arrangements as mechanisms to contribute to peaceful means of dispute settlement through such means as good offices and diplomacy efforts.24 Regional organisations are also recommended to assist each other in developing civilian capacities to prevent crimes and violations relating to the responsibility to protect. Such region-to-region learning processes can be a valuable complement to the state-to-state learning processes identified in the first pillar. Important lessons can be drawn in this respect from the experience of the Organisation for Security and Co-operation in Europe (OSCE) High Commissioner on National Minorities, the Economic Community of West African States (ECOWAS) early warning and response mechanism and the African Union-UN 10-year capacity-building programme.25 Finally, the 2009 report, even more clearly than the WSO Document, bifurcates the contribution of regional organisations to meeting the RtoP responsibilities of the international community in the third pillar into two separate components. The report notes first that ‘the wide range of non-coercive and non-violent response measures’ under Chapters VI and VIII of the Charter may either be undertaken by the Security Council or by regional and sub-regional arrangements, even without the explicit authorisation of the UNSC.26 Here, the case of Kenya after the contested December 2007 elections provides a revealing example. In the first few months of 2008, Secretary-General Ban Ki-moon regularly invoked RtoP to describe the situation of unfolding violence, and his Special Advisor for the Prevention of Genocide, Francis Deng, issued a statement in late January warning political and community leaders of their accountability and the risks incurred for violations of international law, urging them to ‘meet their responsibility to protect the civilian population’. It is noteworthy that this statement was not only addressed to state authorities but to all parties that were behind the violence and to all actors of the international community, including regional arrangements. This example shows that while RtoP does not reinvent what the UN is capable of doing, it does provide a useful framework to interpret events and assess objectives to be achieved. In particular, the mediating efforts of the African Union (AU) with the strong support of the UN are worth highlighting.27 Conversely, it follows from the language of the 2009 report that violent and coercive measures are still relegated to the sole authority of the UN Security Council, regional and sub-regional arrangements having no independent RtoP role in this context. The explicit reference to ex post facto authorisation of non-coercive measures by regional organisations also appears to confirm that military intervention by such organisations should always be carried out through the Security Council, with no option of approval by the UNSC after the fact, as was already clear from the WSO Document. The (implied) authorisation by the Security Council of the ECOMOG deployment in Liberia by ECOWAS in the early 1990s28 should, from this perspective, be treated as no more than an isolated exception.29 The limited role envisaged for regional organisations in operationalising RtoP by the 2009 report of Ban Ki-moon, still the most recent comprehensive report on

Rt o P an d R eg i on al Orga nisatio ns / 253

the implementation of RtoP from the viewpoint of the UN, is thus largely one of soft diplomacy and assisted learning processes. Information sharing with a view to improving the early warning and assessment capabilities of both the UN and regional organisations in particular is seen as key to putting the concept of RtoP into practice. This aspect of RtoP was further expanded upon in a separate annex to the 2009 report and in a full-fledged report of the Secretary-General to the General Assembly of July 2010.30 Both documents stress the vital importance of enriching UN decision-making with the input of regional and sub-regional organisations, whenever possible.31 This is clearly the area where the UN sees most potential for a fruitful collaboration with regional agencies and arrangements in operationalising RtoP: ‘Global-regional collaboration is a key plank of our strategy for operationalising the responsibility to protect, including for establishing the early warning capability mandated in paragraph 138 of the WSO Document, and it deserves our full and unambiguous support’.32 The RtoP role of regional and sub-regional organisations in coercive interventions, on the other hand, is clearly contemplated only as a conditional corollary to the actions undertaken in this respect through the UNSC. This confirms that, unlike what was hinted at by the ICISS in 2001, there does not appear to be an independent military regional RtoP.33 In spite of these limitations, the reactions of the international community to the developments in Libya in early 2011 show that regional organisations are in fact taken into account in the operationalisation of RtoP, even if the reasons for their involvement may appear somewhat obscure. Following the toppling of Tunisian and Egyptian leaders, the brutal oppression of civilian anti-government protestors in Libya by unrelenting mercenaries hired by Colonel Muammar Gaddafi provided, in the eyes of some commentators, a real test case for RtoP.34 Indeed, the actions were considered to be of such a grave nature that Libya was suspended from the League of Arab States35 and the UN Human Rights Council.36 Calls for intervention by the international community, in particular through the imposition of a no-fly zone, grew louder. After it became apparent that such intervention would be backed by regional organisations of the Arab world and Africa, the UN Security Council finally leaped into action by adopting the landmark Resolutions 1970 and 1973 under Chapter VII, in which it explicitly recalled the Libyan government’s responsibility to protect its civilians. Given the manifest failure of Libya to do so, the Security Council authorised all UN member states that notify the SecretaryGeneral, to ‘take all necessary measures … to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya … while excluding a foreign occupation force of any form on any part of Libyan territory’.37 On the ground, the broad wording of UNSC Resolution 1973 was interpreted as granting an authorisation to the international community to engage in a strong military campaign against the Gaddafi regime. Moreover, following the Libyan example, the UNSC later also included a reference to RtoP in its resolution condemning the escalating security situation in Côte d’Ivoire in the aftermath of the presidential elections of 2010.38

J a n W ou t er s , P hi li p D e M a n a nd M a rie Vin cen t / 254

At first sight, the Security Council was careful not to overstep the strict limits of the RtoP notion as agreed to at the 2005 World Summit. The resolutions reaffirm the international community’s ‘strong commitment to the sovereignty, independence, territorial integrity and national unity of the Libyan Arab Jamahiriya’.39 Moreover, they expressly note ‘that the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity’. The classification of the acts by the Libyan authorities as crimes against humanity, using language that appears to be taken directly from the description of this type of crime in the statutes of international criminal tribunals, is a clear confirmation of the narrow scope of RtoP.40 This also ties in with the referral of the situation to the International Criminal Court, the jurisdiction of which is mainly restricted to the international crimes listed in the WSO Document.41 At the same time, the measures called for in the resolutions are of a widely varying nature and run deep. What was remarkable about the UN reaction to the situation in Libya is the close collaboration with regional organisations of the Middle East and Africa, both in the process leading up to the intervention by the coalition forces and in the implementation thereof. The actions of the Libyan authorities were widely condemned in the Arab world and were in particular denounced by the League of Arab States, the AU and the Secretary-General of the Organisation of the Islamic Conference. The adoption of Resolution 1973 to a large extent depended on the decision taken by the League of Arab States on 8 March 2011 calling for the imposition of a no-fly zone on Libyan military aviation and to establish safe areas.42 Testament to the close involvement of regional organisations is also the recurring reference in Resolution 1973 to the obligations of member states to take all necessary measures to protect the Libyan civilians, ‘acting nationally or through regional organisations or arrangements’. Moreover, the resolution explicitly recognises ‘the important role of the League of Arab States in matters relating to the maintenance of international peace and security in the region, and bearing in mind Chapter VIII of the Charter of the UN, requests the Member States of the League of Arab States to cooperate with other Member States in the implementation of [the resolution]’. Finally, the UNSC decided that member states should not only inform the UN Secretary-General of their actions implementing resolution 1973, but also the Secretary-General of the League of Arab States. UNSC Resolutions 1970 and 1973 are noteworthy for bringing back to the fore the doctrine of RtoP in a high-profile case and implementing it in close collaboration with the regional arrangements of the affected area. The extent to which the UN actions concerning Libya can or should set a precedent for the future application of RtoP is unclear, however. The circumstances of the case were highly idiosyncratic and essentially constituted a reaction of a divided international community, united only by the actions of a completely isolated dictator committing atrocious violations of international humanitarian law against his own population. Due to the grave nature of the events, it is likely that the intervention in Libya would have

Rt o P an d R eg i on al Orga nisatio ns / 255

been authorised, even in the absence of the RtoP doctrine. Indeed, it should be noted that the relevant resolutions do not rely on RtoP as an independent legal principle as such. They merely refer to the notion in their preambular paragraphs, while the operative sections of the resolutions rely on the obligations of Libya, ‘under international law, including international humanitarian law, human rights law and refugee law’. Even to the extent that the RtoP doctrine could be considered to provide a legal basis for the UNSC decision to intervene in Libya, the implications thereof for the elevation of the notion are severely mortgaged by the observation that the military intervention in practice has been sidetracked from the aim of protecting civilians to aiding the rebels in their attempts to overthrow the regime. This apparent instrumentalisation of RtoP for a regime change is unlikely to help win support for the concept in countries already sceptical of the notion, in spite of the ostensible backing by the Arab world of the military intervention in Libya. Indeed, the involvement of Arab regional organisations in the reaction of the international community to the situation in Libya can be read in either of two ways. It could be interpreted as the genuine expression by the leading powers of the West of a veritable need to involve the countries that are most likely to be affected by the problems at hand. At the same time, it could also be read as a mere tactic applied by countries long desiring a regime change in a notoriously recalcitrant member of the international community, to deflect the unavoidable accusations of a purely Western intervention in internal Arab issues. The fact that the Arab contribution to the French, UK and US-led intervention in Libya remained limited to token contributions of airplane force by countries such as Qatar and the United Arab Emirates, would appear to support the latter interpretation. In any event, the Libyan crisis, for better or for worse, confirmed the role of regional arrangements in an RtoP case as middle-lever brokers between the intervening powers and the sovereign country whose civilians are in need of protection.

3

Regional Organisations and RtoP under Chapter VIII of the UN Charter

3.1 The Overarching Framework of Chapter VIII

The explicit reference to Chapter VIII in the WSO Document reveals that the global-regional cooperation in operationalising RtoP has to be seen in the broader perspective of the role of regional arrangements and agencies in preventive diplomacy, as set out in this and other chapters of the UN Charter. Indeed, as emphasised in the 2010 UN report on early warning, assessment and RtoP, ‘[t]he Charter, in Articles 33 (1) and 52 (2), envisioned a world in which preventive diplomacy would begin with local and regional initiatives, to be complemented or supplemented by global efforts by the United Nations, as needed’.43 Article 52(2) provides that UN member states of regional arrangements and agencies shall make every effort to achieve a pacific settlement of local disputes through such regional mechanisms

J a n W ou t er s , P hi li p D e M a n a nd M a rie Vin cen t / 256

before referring them to the Security Council. Furthermore, pursuant to Article 53, the Security Council shall, where appropriate, utilise such regional arrangements or agencies for enforcement action under its authority. However, it adds that ‘no enforcement action shall be taken under regional arrangements or by regional agencies without the authorisation of the Security Council’. These two provisions thus confirm the tenor of the regional-global partnership in terms of the use of force as described above. Moreover, the importance of information-sharing between the UN and regional organisations stressed earlier on as a key measure for improving the early warning capabilities in cases of mass atrocities also corresponds to the general obligations laid down in Article 54 UN Charter. This provision instructs regional arrangements and agencies to keep the UN Security Council ‘fully informed, [at all times,] of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security’.

3.2 Diversity of Regional Arrangements and Agencies

Like Chapter VIII, the official UN documents on RtoP nowhere define the notion of ‘regional agencies or arrangements’, thus potentially compounding the operationalisation of the concept at the regional level. An in-depth discussion of the reach of this concept lies beyond the scope of this contribution. However, it is commonly agreed that the concept in the context of conflict prevention and crisis management has undergone a major transformation in the past two decades, most notably due to the clarifications offered by former UN Secretary-General Boutros Boutros-Ghali in his landmark report, ‘An Agenda for Peace’.44 It follows from this report that every regional organisation that is (1) aimed at peacefully resolving matters of a regional dimension by actions having regional characteristics, and which (2) contributes to the maintenance of international peace and security, (3) in conformity with the purposes and principles of the UN, should be considered a regional agency in the sense of Articles 33 and 52 of the Charter, if cooperation therewith can complement the efforts of the organisation in settling disputes.45 This increased reliance, since the end of the Cold War, on regional organisations in the framework of Chapter VIII is indicative of a broader trend recognising the importance of regional cooperation in the context of conflict prevention, and is now also seen to pervade the discourse on RtoP. The wide diversity of organisations that meet the above criteria for regional agencies and arrangements to some extent renders it impossible to discuss in general terms the role of regional organisations in operationalising RtoP. Nevertheless, it is possible to distil from the 2009 report on the implementation of RtoP the regional organisations that are thought to be particularly valuable partners of the UN in this respect. The UN Secretary-General notably refers to the initiatives of a select number of regional organisations as best practices to be followed by other regional agencies, which will be briefly touched upon in the following paragraphs.46 First, due to the geographical concentration of most conflicts involving mass atrocities and the institutional evolution in the past decade of the regional organi-

Rt o P an d R eg i on al Orga nisatio ns / 257

sation at hand, the AU is an obvious choice for a regional RtoP partner of the UN. Core elements of RtoP were already well-developed in Africa in the 1990s. The notion that state sovereignty is not absolute, but conditional, is reflected in the AU’s Constitutive Act of 2000, which asserts under Article 4(h) as one of its main principles ‘[t]he right of the Union to intervene in a member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity’.47 The non-interference principle of the AU’s predecessor, the Organisation of African Unity, has thus been discarded in this most fundamental provision, the precise wording of which is remarkably close to the threshold criteria used to circumscribe the narrow scope of RtoP in the UNGA Outcome document five years later. Preceding the concept, none of the founding instruments of the AU refers to the responsibility to protect by name, and some issues concerning the operationalisation of RtoP by the AU still need to be resolved. As such, even though the Constitutive Act commands respect for the Charter of the UN (Article 3 (e)), it refers to the Assembly of Heads of State and Government as the sole authority to decide upon intervening in a member state in case of mass atrocities, upon recommendation of the Peace and Security Council (Article 7(e) of the Protocol establishing the Peace and Security Council). This would appear to be at odds with the UN perception of the role of regional organisations in the use of force to protect civilian populations. For example, the AU intervention in Burundi in May 2003 apparently occurred without any prior UNSC authorisation. Afterwards, the Security Council nevertheless commended the efforts of the AU and encouraged it to maintain a strong presence in the field.48 Another regional organisation whose member states have granted it an explicit right to intervene under particular circumstances is the Economic Community of West African States (ECOWAS). Its 1999 Protocol relating to the Mechanism for Conflict Prevention, Management and Resolution, Peace-keeping and Security authorises ECOWAS to intervene in order ‘to alleviate the suffering of the populations and restore life to normalcy in the event of crises, conflict and disaster’ (Article 40). Such broad reference to humanitarian intervention cannot be construed as an explicit implementation of the RtoP notion, however, especially given the date of adoption of the Protocol. Moreover, the relevant article indicates further on that the organisation’s right to intervene includes cases of rehabilitation of the gravely devastated environment of a member state. However, such broad construction of the RtoP concept so as to include natural disasters was vehemently opposed during the negotiation of the WSO Document (see more infra). Finally, the OSCE is also among those organisations that are frequently mentioned as having specific importance in the regional operationalisation of RtoP. Indeed, the member states themselves have defined the OSCE as ‘a primary organisation for the peaceful settlement of disputes within its region and as a key instrument for early warning, conflict prevention, crisis management and post-conflict rehabilitation’.49 The aptitude of the organisation as an RtoP partner is mainly due to its broad take on security, as well as its organisational and institutional infra-

J a n W ou t er s , P hi li p D e M a n a nd M a rie Vin cen t / 258

structure. The experience of the OSCE High Commissioner on National Minorities is particularly relevant in this respect. Generally speaking, all of the above organisations have the mandate and potential to play an important role in the operationalisation of the RtoP concept at the regional level. The AU and ECOWAS are significantly lacking in financial resources, however, and so far have failed to realise their full potential in this field. Moreover, the consensus-based decision-making process of the OSCE often precludes it from taking swift action in the event of an imminent crisis. Other regional organisations such as the Organisation of American States (OAS), the Association of South East Asian Nations (ASEAN), the South Asian Association for Regional Cooperation (SAARC) and the South African Development Cooperation (SADC) are still largely constrained by their continued adherence to the principles of non-interference and non-use of force. Political will is often lacking, especially in South Asia and the southern regions of Africa.50 The principles of sovereignty and non-interventionism thoroughly influence the institutional infrastructure and workings of regional organisations and their member states in Asia.51 This is one of the reasons why China initially rejected the RtoP concept at the ICISS Roundtable Consultation with the China Institute of International Studies in June 2001.52 China’s position significantly softened, however, when the concept was subsequently watered down in the consensus-building exercise during the negotiations on the WSO Document, as is shown by the unanimous endorsement of the concept on this occasion and in UNSC Resolution 1674. The text of this resolution was deemed acceptable by China only on the express condition that it was limited to the terms of the WSO Document.53 China’s subsequent engagement in UN peacekeeping operations54, the Shanghai Cooperation Organisation and its close coordination with ASEAN and APEC are testament to the country’s apparent turnaround on RtoP.55 This is further evidenced by the noteworthy decision by China to refrain from using its veto regarding UNSC Resolution 1973 on Libya, although this decision might at least partially have been inspired by a fear of jeopardising its economic ties with Africa and the Middle East, especially given the favourable stance of Arab and African states on the intervention themselves. China’s about-face on the RtoP concept is also largely due to the containment of the concept at the 2005 Summit and its subsequent endorsement on the same terms by the Security Council. The UNSC resolutions on Libya once again confirmed the strict confines of the notion in this respect, although the ensuing implementation of the resolutions shows that the motivation of the intervention might not have been dictated solely by concerns for the well-being of the civilian population. The Libyan crisis shows that it remains vital to promote an increased Southern ownership of the RtoP concept, especially at the level of states and regional organisations. It is often striking to observe the recalcitrance of many Southern and Asian state leaders towards RtoP – which some are quick to denounce as a Western neo-imperialist instrument – and the contrasting support of their populations for the concept. The instrumentalisation of RtoP as a means of democratising

Rt o P an d R eg i on al Orga nisatio ns / 259

dictatorial nations such as Libya shows that the fears of the notion’s detractors are not entirely ill-founded. Indeed, the initial support of the regional organisations most closely connected to the conflict in Libya quickly gave way to apprehension over the motives of the UN-authorised intervention. Western states should remain careful not to impose RtoP on the countries that are affected by the conflict, and apply it only in the pursuit of the goals that originally guided the establishment of the concept. In the meantime, there still is a lot that developed countries can do internally and at a regional level, notably in the EU, to integrate RtoP in the daily practice of administrations and to build political support for the concept. The next section will discuss whether and how the EU is doing this.

4

Where Does the EU Stand?

The very reference to the experience of the EU in the abovementioned 2009 UNSG report indicates that it is a regional organisation with specific relevance for the implementation of RtoP by the UN. This was confirmed by a recent statement of one of the fathers of the concept, Gareth Evans, who noted that, ‘of all the regional organisations capable of helping make RtoP a reality, the twenty-seven-member EU brings by far the greatest potential strengths’.56 Ever since the run-up to the 2005 World Summit, EU member states have notoriously been amongst the most fervent advocates of RtoP at the UN level. The European Council, in its meeting of 16-17 June 2005, reaffirmed ‘the importance which it attributes to the concept of the responsibility to protect, which must be implemented by the Security Council’.57 The European Commission also embraced the cause and issued, a few days before the Summit, a communication to express its wish to see UN member states endorse RtoP in the WSO Document. The EU Council, on 7 November 2005, welcomed the endorsement of RtoP, which it reckoned would ‘be an important tool of the international community’.58 In its Joint Action on the EU Rule of Law Mission in Kosovo, the Council made reference to RtoP as referred to in the Security Council’s Resolution 1674.59 In its priorities for the 63rd UN General Assembly, the EU reiterated that it ‘attaches great importance to the implementation of the responsibility to protect, a concept that was endorsed at the 2005 World Summit, and emphasises the need for further consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity in the General Assembly and the Security Council’.60 Among EU institutions, the European Parliament is the one that has most consistently kept RtoP on its agenda, including reference to the concept in a number of resolutions – most recently on the violence in the Democratic Republic of Congo,61 on the problem of piracy off the Somali coast,62 and on the situation in Libya.63 However, these resolutions typically only make mention of the RtoP notion as such, in the framework of the UN, without any elaboration on how it should be interpreted or implemented in the situation at hand. Moreover, even within the

J a n W ou t er s , P hi li p D e M a n a nd M a rie Vin cen t / 260

European Parliament, consensus on RtoP remains fragile, as exemplified by the opposition of the European People’s Party (EPP) and Confederal Group of the European United Left (GUE/NGL) to the insertion of a reference to RtoP and the concept of human security in a motion for resolution on the implementation of the European Security Strategy and European Security and Defence Policy (ESDP). Their reluctance was based on the assumption that such concepts are increasingly used to justify military intervention. After some years of rather timidly backing the RtoP, the European Commission, Council and Parliament reaffirmed their commitment to the concept in the European Consensus on Humanitarian Aid, endorsed in December 2007.64 Furthermore, all three institutions have expressly welcomed the appointment of Edward Luck as UN Special Adviser, regarding his nomination as an opportunity to promote more substantive debate on RtoP. The EU also included RtoP amongst its priorities for the last two sessions of the UN General Assembly, stressing the need for its implementation and operationalisation by the UN Secretary-General ‘on the basis that the concept is not open for renegotiation’.65 The Commission is of the view that the issue should then move beyond the General Assembly and Security Council to the Human Rights Council. Moreover, the Parliament affirmed in its 2010 resolution on the annual report from the Council on the Common Foreign and Security Policy (CFSP) that the RtoP notion, ‘as defined by the 2005 World Summit Outcome Document’, should become one of the ‘guiding principles’ of the CFSP, along with the concept of human security, as defined by the 2007 Madrid Report of the Human Security Study Group.66 EU support for the principle of RtoP is thus widespread and enduring. However, the successive references to the notion in EU documents and statements before the UN have yet to be followed up by a clear and comprehensive strategy on the part of the Commission or Council on how the concept should be interpreted and implemented in practice. Most EU documents are country-specific resolutions of the European Parliament, and statements at the UN General Assembly that mention RtoP typically merely hint at the need for collective action through the UNSC and the importance of the effective implementation of the concept. Most recently, the European Parliament, in its recommendation to the Council at the 65th session of the UN General Assembly, repeated the need ‘to fully support the efforts of the UN Secretary General to better define the notion of the principle of the Responsibility to Protect (RtoP)’.67 Throughout the past five years, the EU has tried to offer some clarification on how it views the RtoP concept. This process has revealed some noteworthy discrepancies with the official UN take on RtoP, even though the ripples have been smoothed out over time. Illustrative in this respect were the discussions on a possible readjustment of the European Security Strategy under the French Presidency of the EU, from July through December 2008. Both events coincided to give a further push to the EU debate on RtoP. Driven by its Foreign Minister Bernard Kouchner – who famously conceived the principle of ‘droit d’ingérence’ and has since been a

Rt o P an d R eg i on al Orga nisatio ns / 261

dedicated champion of RtoP – France declared its intention to use the exercise of its EU Presidency to promote a debate on RtoP among the 27 member states. Setting an example at the national level, France included a reference on RtoP in both its white paper on defence and national security and its white paper on foreign affairs. The report on the implementation of the European Security Strategy (ESS), adopted in December 2008, mentions RtoP in two key paragraphs. Apart from highlighting the primary responsibility that sovereign nations have to protect their own populations, the Council noted that ‘[w]ith respect to core human rights, the EU should continue to advance the agreement reached at the UN World Summit in 2005, that we hold a shared responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’.68 This reference, however, does little more than repeat the commitment in the WSO Document and as such, appears to contribute little to the debate. The discussions preceding the adoption of the report nevertheless show that the mere adherence to the terms of the 2005 agreement was something of an achievement in itself. During its presidency, France made clear that it was determined to promote an extensive understanding of RtoP, which should clearly start with a commitment to the ‘responsibility to prevent’. As part of this extensive understanding, and following the controversy around Bernard Kouchner’s call to invoke RtoP in the case of Burma following Cyclone Nargis, the French Presidency sought to include natural disasters within the scope of RtoP. The text of the ESS Implementation Report cited above shows that the internal quibbles were settled in a timely way by upholding the narrow threshold criteria of the 2005 consensus. This reading of RtoP is most certainly in line with the present views of the UN Secretary-General, as Ban Ki-moon in his 2009 report once again stressed the narrow approach to RtoP: ‘To try to extend it to cover other calamities, such as HIV/AIDS, climate change or the response to natural disasters, would undermine the 2005 consensus and stretch the concept beyond recognition or operational utility’ (para 10 (b)). Some statements made during debates at the UN hint at how the EU would like to see RtoP implemented in practice. Former EU Commissioner on External Relations and European Neighbourhood Policy Ferrero-Waldner noted at a 2009 High Level Meeting on effective multilateralism that the EU supports the UN SecretaryGeneral’s suggestion that permanent members of the Security Council abstain from their veto in matters concerning the responsibility to protect.69 The statement of the EU Presidency on the occasion of the UNGA debate on RtoP in July 2009 is instructive in that it comprises the closest the EU has come so far in revealing its take on RtoP, in the absence of an official document detailing a comprehensive strategy on the matter. The statement broadly echoes the official documents of the UN in that it once again reaffirms the limited scope of the RtoP notion and the importance of effective implementation, mainly through the development of early warning capacities.70

J a n W ou t er s , P hi li p D e M a n a nd M a rie Vin cen t / 262

The Presidency statement concludes by repeating that the greatest potential for operationalising RtoP at the EU level is in terms of prevention and stresses that the principle has to be integrated in the Union’s overall normative framework. Indeed, the EU does not need to invent a multitude of new instruments in the name of RtoP, having already at its disposal a broad range of conflict prevention instruments: from the structural long-term preventive instruments – such as development co-operation, trade, arms control, human rights, social and environmental policies, as well as political dialogue – to the diplomatic and humanitarian instruments for short-term prevention. The Commission also sees a necessity of further investment in helping states build their capacity to protect their population. Here it could indeed play a very useful role, building on its experience in capacity building in the fields of rule of law and good governance. Early warning is a major field that should be prioritised and where the Commission could prove a valuable partner, having developed a checklist for root causes of conflict that it has already shared with the UN and other donors. Lastly, the EU has a broad range of instruments in the field of crisis management that could be of use, including civilian capabilities such as police missions. The civilian uprisings of early 2011 in what the EU refers to as its Southern Neighbourhood71 presented the Union with a singular opportunity to clarify its stance on RtoP. Unfortunately, the reaction of the 27 member states to the Libyan crisis was slow, haphazard and equivocal in relation to its application of RtoP.72 While France and the United Kingdom were the leading protagonists of a rapid intervention in Libya, other EU member states remained sceptical. In a move that painfully laid bare the internal cracks in the Union’s reaction to the situation in Libya, Germany abstained when UNSC Resolution 1973 was voted, thereby joining China, Russia, India and Brazil in ventilating their anti-interventionist sentiments.73 Once again, the EU failed to speak with one voice on an important event of international peace and security. In spite of their divisions on the international stage, EU member states managed to align their positions internally in the Council for the adoption of a number of measures aimed at paralysing the Libyan government, including a visa ban and assets freeze on Colonel Gaddafi and other persons of his regime thought to be responsible for the violent crackdown on Libyan civilians of early 2011.74 This series of measures culminated in the adoption of Council Decision 2011/210/CFSP of 1 April 2011, authorising the establishment of an EU military operation in Libya (EUFOR Libya).75 If deployed, the mission of EUFOR Libya is to conduct, in the framework of the CSDP, a military operation to support humanitarian assistance in the Libyan region. It shall in particular contribute to the safe movement and evacuation of displaced persons and support, with specific capabilities, the humanitarian agencies in their activities in Libya.76 The EU has always been careful to qualify its actions with respect to Libya as the implementation, at the regional level, of the resolutions that were pushed for by two of its member states at the UN level. The Council decisions adopting restrictive

Rt o P an d R eg i on al Orga nisatio ns / 263

measures in view of the situation in Libya, such as the freezing of assets and the imposition of travel bans, consistently refer to Resolutions 1970 and 1973, and were indeed expressly taken in reaction to these measures.77 Similarly, the decision on EUFOR Libya stresses that the operation is to be deployed ‘[w]ith a view to underpinning the mandates of United Nations Security Council Resolutions 1970 and 1973 (2011) …, if requested by the United Nations Office for the Coordination of Humanitarian Affairs’.78 In line with the decisions of the UNSC, the EUFOR Libya decision also emphasises the importance of operating in close coordination with the League of Arab States and the AU.79 Nevertheless, and in spite of these clear procedural and substantial links with the two UNSC resolutions on Libya, nowhere do the relevant Council decisions refer to the responsibility to protect, and the notion is only mentioned sporadically in official EU statements commenting on the situation.80 The extent to which the EU, in its reaction to Libya, was motivated primarily by the need to protect the Libyan civilian population, thus remains unclear. Even though the scope of the EUFOR Libya mission is specifically tailored to the protection of civilians, the Union’s motives for acting at last are obscure and in the end seem to confirm the impression that RtoP is once again being instrumentalised for political goals extraneous to the protection of civilians and civilian populated areas as such. Indeed, various statements of highly-placed EU representatives reveal that the ultimate goal of the measures taken with respect to Libya is the removal of Gaddafi’s regime and, ultimately, the democratisation of the Southern Neighbourhood.81 While such political motivations may be defensible in and of themselves, they bolster the suspicion that the RtoP references in the UNSC resolutions were used mainly as a pretext to overthrow a dictator that had long been a thorn in the side of the West, rather than as a real indication of a strong political willingness of the international community to come to the rescue of a suffering civilian population. Germany’s abstention on Security Council Resolution 1973 is an important indication in this respect of the less-than unwavering support for RtoP, even among EU member states. Additionally, it may be noted that at least part of the EU’s motivations for acting over the situation in its Southern Neighbourhood were in direct reaction to the concerns of its member state Italy to halt the influx of refugees from Tunisia, Egypt and Libya into Lampedusa and the Pelagic Islands. Calls for solidarity among EU member states to stem the flow of North African refugees into Italian territory have thus taken up a priority position in the EU’s reaction to the situation in Libya,82 resulting, among other measures, in the Frontex Hermes 2011 operation83 and dramatic appeals for amending the Schengen Agreement.84 In this light, the decision to locate the operational headquarters of EUFOR Libya in Rome, and to place the operation’s command in Italian hands, is revealing.85

J a n W ou t er s , P hi li p D e M a n a nd M a rie Vin cen t / 264

5

Concluding remarks

The internal debate within the EU on RtoP and its divided stance on Libya show that a strong divergence persists on how the notion should be interpreted. The effects of this failure to clarify the notion are not limited to the conceptual plane, but extend to operations on the ground as well, as definitional issues unavoidably impact upon the practical implementation of a notion, especially one that requires coordination among such a wide range of players. The piecemeal references to regional organisations in the context of RtoP operationalisation in the latest reports of Ban Ki-moon confirm that the UN is still at a loss as to what role should be attributed to regional organisations in the complex task of protecting civilians during the maintenance of international peace and security. This lack of guidance at the international level reverberates regionally. The diverse nature of the manifold regional players only adds to the complexity of this task, with some that are directly involved in the conflict yet crippled by an acute lack of resources, while others may have the necessary institutional and operational capacities yet are frustrated by a lack of political willingness. The EU’s support for RtoP in particular is characterised by official statements paying lip service to the notion, reiterating the terms of the 2005 Summit and thus foregoing effective operationalisation of the notion in favour of maintaining a fragile consensus on an altogether narrowly defined concept. Moreover, the experience of Libya shows that the invocation of RtoP within its theoretical limits need not fulfil the actual goals of the notion. Nevertheless, the express incorporation of the responsibility to protect in the ESS implementation report and the actions of the EU in support of the UN actions on Libya are pointers of an increasing willingness of the Union to make RtoP an effective dimension of its foreign and security policy. Likewise, the express reference to the concept in two binding resolutions of the UN Security Council is an important step in activating the responsibility to protect at the international level, even if the actual implementation of the resolutions shows that we still have a long way to go. The EU, for its part, should take advantage of the current political momentum to further clarify its own position on RtoP and to determine for itself how best to operationalise the concept internally, so as to be able to act as a reliable partner to the UN. A unified and determined approach to RtoP by the EU, one of the key partners of the UN in maintaining international peace and security, could spur the international community into developing a workable and comprehensive framework for cooperation with regional organisations, thus paving the way for an effective implementation of RtoP. To this end, the EU first has to decide on a number of issues internally, however. What means and what capacities is the Union willing to commit? What extra instruments and mechanisms should be put in place? It is important to have an open and non-confrontational discussion of these questions among the 27 member states and the EU’s institutions. Independent of its immediate outcomes, the challenges surrounding RtoP are enormous and will necessitate a sustained political commitment for many years to come.

Rt o P an d R eg i on al Orga nisatio ns / 265

Notes 1 UNGA, ‘2005 World Summit Outcome’ (2005) UN Doc A/60/L 1 (WSO Document). 2 The relevant paragraphs of the WSO Document (ibid) read as follows in full: ‘138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the UN in establishing an early warning capability. 139. The international community, through the UN, 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 manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out. 140. We fully support the mission of the Special Adviser of the Secretary-General on the Prevention of Genocide.’ 3 For more on Chapter VIII in the context of RtoP, see below. 4 UNSC Res 1674 (28 April 200) UN Doc S/RES/1674: ‘The Security Council ... reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’. 5 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) accessed 1 April 2011 (ICISS Report). 6 Statement by the Secretary-General, ‘Secretary-General defends, clarifies “Responsibility to Protect” at Berlin event on “Responsible Sovereignty: International Cooperation for a Changed World”’ (2008) UN Doc SG/SM/11701. 7 Report of the Secretary-General, ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677, para 67. 8 Ibid. 9 See section 2.2 (‘Implementing the three pillars of RtoP’). 10 For summaries of the statements made at the various sessions of the debate, see UNGA, ‘More than 50 delegates express strong scepticism, full support as General Assembly continues debate on Responsibility to Protect’ (2009) UN Doc GA/10849; UNGA ‘Delegates weigh legal merits of responsibility to protect concept as General Assembly concludes debate’ (2009) UN Doc GA/10850. 11 ICISS Report (n 5) 13.

J a n W ou t er s , P hi li p D e M a n a nd M a rie Vin cen t / 266

12 This was most recently demonstrated by the crisis in Libya in early 2011. 13 See also C Chamot, ‘Vers un Partage des Responsabilités entre les Nations Unies et les Organisations Régionales dans le Maintien de la Paix’ [1998] L’Observateur des Nations Unies 5, 40-41; M Szapiro, ‘International Organisations’ Cooperation in the Field of Conflict Prevention’ in V Kronenberger and J Wouters (eds), The European Union and Conflict Prevention (T M C Asser Press, The Hague 2004) 364; E Kodjo and H Gherari, ‘Article 52’ in J P Cot, A Pellet and M Forteau (eds), La Charte des Nations Unies: Commentaire Article par Article (Economica, Paris 2005) 1394-1395. 14 Report of the Secretary-General, ‘An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping’ (1992) UN Doc A/47/277-S/24111, 64. 15 The report sets out six criteria for the use of military force: just cause, right intention, last resort, proportional means, reasonable prospects, right authority. 16 ICISS Report (n 5) 6.31. 17 WSO Document (n 2) 139. 18 International Coalition for the Responsibility to Protect, ‘Statement from UN Special Advisor Edward Luck on R2P’ (17 June 2008) accessed 1 April 2011. 19 accessed 1 April 2011. 20 See n 10 above. 21 After this chapter was drafted, the Secretary-General issued a further report on the implementation of RtoP, specifically focusing therein on the role of regional and subregional arrangements. Despite its promising angle, the report once more remains vague as to the specific contribution of regional organisations to operationalising RtoP and does not add anything new or substantive to the discussion. See Report of the SecretaryGeneral, ‘The Role of Regional and Sub-regional Arrangements in Implementing the Responsibility to Protect’ (2011) UN Doc A/65/877-S/2011/393. 22 See n 10 above, para 22. 23 See eg G Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Brookings Institution, Washington 2008), 183. 24 See n 10 above, para 30. 25 Ibid, paras 37-47. 26 Ibid, para 51. 27 See Global Centre for the Responsibility to Protect, The Responsibility to Protect and Kenya: Past Successes and Current Challenges, policy brief, 13 August 2010 accessed 1 April 2011. 28 UN Doc. S/RES/788 of 19 November 1992. 29 For more on this and other cases of purported post factum ratifications of military interventions by regional organisations, see U. Villani, ‘The Security Council’s Authorisation of Enforcement Actions by Regional Organisations’, in J A Frowein and R Wolfrum (eds.), Max Planck Yearbook of United Nations Law: Volume 6 (Kluwer Law International, The Hague 2002), 535-557. 30 UNSG, Early Warning, Assessment and the Responsibility to Protect, UN Doc. A/64/864 of 14 July 2010. 31 Ibid, para 11. 32 UNSG, n 10 above, para 65. 33 K M Haugevik, ‘Regionalising the Responsibility to Protect: Possibilities, Capabilities and Actualities, 1 Global Responsibility to Protect 2009, 350.

Rt o P an d R eg i on al Orga nisatio ns / 267

34 I Cotler and J Genser, ‘Libya and the Responsibility to Protect’, The New York Times, 28 February 2011. 35 See the statement of the Council of the Arab League at the level of permanent delegates on the serious developments taking place in Libya of 22 February 2011 accessed 11 April 2011, Arabic only. 36 UN Doc. A/RES/65/265 of 3 March 2011. 37 UN Doc. S/RES/1970 of 26 February 2011 and UN Doc. S/RES/1973 of 17 March 2011. 38 UN Doc. S/RES/1975 of 30 March 2011. 39 Compare resolution 1975 on the situation in Côte d’Ivoire, stressing the Security Council’s ‘strong commitment to the sovereignty, independence, territorial integrity and unity of Côte d’Ivoire, and recalling the importance of the principles of good-neighbourliness, non-interference and regional cooperation’. 40 Resolution 1973 specifically refers to several war crimes and crimes against humanity believed to have been perpetrated by the Libyan authorities, such as enforced disappearances, torture and summary executions. 41 See operative paragraphs 4-8 of Resolution 1970. 42 See the statement of UN Secretary-General Ban Ki-moon on 17 March 2011 accessed 1 April 2011. 43 n 10 above, para 11. 44 n 17 above. Para 61 of the report reads as follows: ‘The Charter deliberately provides no precise definition of regional arrangements and agencies, thus allowing useful flexibility for undertakings by a group of States to deal with a matter appropriate for regional action which also could contribute to the maintenance of international peace and security. Such associations or entities could include treaty-based organisations, whether created before or after the founding of the United Nations, regional organisations for mutual security and defence, organisations for general regional development or for cooperation on a particular economic topic or function, and groups created to deal with a specific political, economic or social issue of current concern’. 45 V Kronenberger and J Wouters, ‘Introduction’, in V Kronenberg and J Wouters (eds), n 16 above, xxvi-xxvii. See also An Agenda for Peace, n 17 above, para 63; E Kodjo and H Gherari, n 16, 1374. 46 As for the EU, see below. 47 See also Article 4 (j) of the Constitutive Act (‘The right of Member States to request intervention from the Union in order to restore peace and security’). 48 UN Doc. S/RES/1545 of 21 May 2004. See J Sarkin, ‘Dealing with Africa’s Human Rights Problems: the Role of the United Nations, the African Union and Africa’s Sub-regional Organisations in Dealing with Africa’s Human Rights Problems: Connnecting Humanitarian Intervention and the Responsibility to Protect’, research paper No. 09-01, April 2009 accessed 1 April 2011). 49 1999 Istanbul Document, para 7. See also the 1992 Helsinki Document, Section III (‘Early Warning, Conflict Prevention and Crisis Management (including fact-finding and rapporteurs missions and CSCE peacekeeping), Peaceful Settlement of Disputes’). All summit documents are available at . 50 For a more in-depth overview of the capabilities of these regional organisations in implementing RtoP, see D Carment and M Fischer, ‘R2P and the Role of Regional Organisations in Ethnic Conflict Management, Prevention and Resolution: the Unfinished Agenda’, 1 Global Responsibility to Protect 2009, 261-290; M Mwanasali, ‘The African Union, the United Nations, and the Responsibility to Protect: towards an African Intervention

J a n W ou t er s , P hi li p D e M a n a nd M a rie Vin cen t / 268

Doctrine’, 2 Global Responsibility to Protect 2010, 388-413; K M Haugevik, n 35 above; J Sarkin, n 48 above. 51 See Y F Khong and H E S Nesadurai, ‘Hanging Together, Institutional Design, and Cooperation in Southeast Asia: AFTA and the ARF’, in A Acharya and A I Johnston (eds), Crafting Cooperation: Regional International Institutions in Comparative Perspective (Cambridge UP, 2007), 32-82. 52 ICISS Report, n 8 above, Part III: Background, 392 et seq accessed 1 April 2011. 53 See R Foot, ‘The Responsibility to Protect and Its Evolution: Beijing’s Influence on Norm Creation in Humanitarian Areas’, St Antony’s International Review, 2010. On China’s stance vs. RtoP, J Prantl and R Nakano, ‘Global Norm Diffusion in East Asia: How China and Japan Implement the Responsibility to Protect’, NTS Working Paper Series No. 5, January 2011 referring to Z Pang, ‘China’s Non-Intervention Question’, 1 Global Responsibility to Protect 2009, 237-252; S Teitt, ‘Assessing Polemics, Principles and Practices: China and the Responsibility to Protect’, 1 Global Responsibility to Protect 2009, 208-236. 54 United Nations, Contributors to the United Nations Peacekeeping Operations – Monthly Summary of Contributors as of 31 Jan 2011, 2011 accessed 1 April 2011. 55 J Prantl and R Nakano (n 53) 10-11. 56 N 23 above, 183. 57 Presidency Conclusions, para 37 accessed 1 April 2011. 58 EU Council Conclusions – UN World Summit (7 November 2005, Brussels). 59 Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX Kosovo, OJ L 42 of 16 February 2008, 92, third recital of the preamble. 60 European Union Priorities for the 63rd General Assembly of the United Nations, 16 June 2008, para 18 accessed 1 April 2011. 61 European Parliament resolution of 17 December 2009 on violence in the Democratic Republic of Congo, OJ C 286 of 22 October 2010, 21. 62 European Parliament resolution of 26 November 2009 on a political solution to the problem of piracy off the Somali coast, OJ C 285 of 21 October 2010, 59. 63 European Parliament Resolution of 10 March 2011 on the Southern Neighbourhood, and Libya in particular, P7_TA-PROV(2011)0095. 64 Joint Statement by the Council and the Representatives of the Governments of the Member States meeting within the Council, the European Parliament and the European Commission, OJ C 25 of 30 January 2008, 1, para 17. 65 European Union Priorities for the 64th General Assembly of the United Nations, 9 June 2009, para 8 accessed 1 April 2011; European Union Priorities for the 65th General Assembly of the United Nations, 25 May 2010, para 11 accessed 1 April 2011. 66 European Parliament resolution of 10 March 2010 on the annual report from the Council to the European Parliament on the main aspects and basic choices of the Common Foreign and Security Policy (CFSP) in 2008, presented to the European Parliament in

Rt o P an d R eg i on al Orga nisatio ns / 269

application of Part II, Section G, para 43 of the Interinstitutional Agreement of 17 May 2006, OJ C 349 of 22 December 2010, 51. 67 European Parliament recommendation to the Council of 25 March 2010 on the 65th Session of the United Nations General Assembly, OJ C 4 of 7 January 2011, 49. 68 Report on the Implementation of the European Security Strategy: Providing Security in a Changing World, Council Doc. S407/08 of 11 December 2008 accessed 1 April 2011. 69 Effective multilateralism: Building for a better tomorrow – Speech by EU Commissioner Ferrero-Waldner of 14 April 2009 at the United Nations Association of Spain, High Level Meeting on European Union and United Nations: Towards effective multilateralism accessed 1 April 2011. 70 EU Presidency Statement – United Nations General Assembly: Debate on the Responsibility to Protect of 23 July 2009 accessed 1 April 2011. 71 The term initially only comprised the Mediterranean states, but now also reaches into what is officially called the Broader Middle East and North Africa. 72 Former Belgian prime minister and current leader of the Liberal fraction in the European Parliament Guy Verhofstadt called the lukewarm response of the Council to the unfolding events in Libya ‘a disgrace’ and ‘sickening’: see accessed 4 April 2011) and accessed 4 April 2011. 73 See E Reguly, ‘Germany Splits from EU Family over Libya’, The Globe and Mail, 18 March 2011 accessed 4 April 2011. 74 Council Decision 2011/137/CFSP of 28 February 2011 concerning restrictive measures in view of the situation in Libya, OJ L 58 of 3 March 2011, 53; Council Regulation (EU) No 204/2011 of 2 March 2011 concerning restrictive measures in view of the situation in Libya, PJ L 58 of 3 March 2011, 1; Council Implementing Regulation (EU) No 233/2011 of 10 March 2011 implementing Article 16(2) of Regulation (EU) No 204/2011 concerning restrictive measures in view of the situation in Libya, OJ L 64 of 11 March 2011, 13; Council Implementing Decision 2011/156/CFSP of 10 March 2011 implementing Decision 2011/137/CFSP concerning restrictive measures in view of the situation in Libya, OJ L 64 of 11 March 2011, 29; Council Implementing Regulation (EU) No 272/2011 of 21 March 2011 implementing Article 16(2) of Regulation (EU) No 204/2011 concerning restrictive measures in view of the situation in Libya, OJ L 76 of 22 March 2011, 32; Council Implementing Decision 2011/175/CFSP of 21 March 2011 implementing Decision 2011/137/CFSP concerning restrictive measures in view of the situation in Libya, OJ L 76 of 22 March 2011, 95; Council Implementing Regulation (EU) No 288/2011 of 23 March 2011 implementing Article 16(1) and (2) of Regulation (EU) No 204/2011 concerning restrictive measures in view of the situation in Libya, OJ L 78 of 24 March 2011, 13; Council Decision 2011/178/ CFSP of 23 March 2011 amending Decision 2011/137/CFSP concerning restrictive measures in view of the situation in Libya, OJ L 78 of 24 March 2011, 24; Council Regulation (EU) No 296/2011 of 25 March 2011 amending Regulation (EU) No 204/2011 concerning restrictive measures in view of the situation in Libya, OJ L 80 of 26 March 2011, 2. Moreover, negotiations on an EU-Libya framework agreement and ongoing cooperation contracts with the country were suspended on 22 February 2011.

J a n W ou t er s , P hi li p D e M a n a nd M a rie Vin cen t / 270

75 Council Decision 2011/210/CFSP of 1 April 2011 on a European Union military operation in support of humanitarian assistance operations in response to the crisis situation in Libya (EUFOR Libya), OJ L 89 of 5 April 2011, 17. 76 Art. 1 of Council Decision 2011/210/CFSP. 77 See, inter alia, paragraph (1) of Council Regulation (EU) No 204/2011 of 2 March 2011; paragraphs (2) and (3) of Council Implementing Regulation (EU) No 288/2011 of 23 March 2011; paragraphs (2) and (3) of Council Decision 2011/178/CFSP of 23 March 2011. 78 Art. 1 of Council Decision 2011/210/CFSP. 79 See Art. 8 (‘EUFOR Libya shall cooperate closely with the designated United Nations coordinator(s), as well as with the designated coordinator(s) of the League of Arab States and with its Member States. … Consultations shall take place with the African Union as appropriate’) and Art. 9 of Council Decision 2011/210/CFSP (‘Without prejudice to the Union’s decision-making autonomy or to the single institutional framework, and in accordance with the relevant guidelines of the European Council, third States, in particular the Member States of the League of Arab States, may be invited to participate in the operation’). 80 See the general statement by Hungary on behalf of the EU and its member states concerning the membership of Libya in the Human Rights Council of 1 March 2011 accessed 12 April 2011; Declaration by Catherine Ashton, High Representative for Foreign Affairs and Security Policy, on behalf of the EU of 23 February 2011 accessed 12 April 2011. 81 See, for example, the statement by Catherine Ashton, EU High Representative for Foreign Affairs and Security Policy, following the London Conference on Libya, 29 March 2011: “Colonel Kadhafi should relinquish power immediately in order to allow Libya to rapidly embark on an orderly transition to democracy”. See also the overview of the EU’s response to the developments in Libya at the Council’s website accessed 11 April 2011 (‘Herman van Rompuy, President of the European Council, said that the political objectives, set by the extraordinary European Council on 11 March [2011], remained unchanged: Gaddafi must go, and the EU wants a political transition’). 82 See, inter alia, the Declaration adopted by the extraordinary European Council of 11 March 2011, paras 10-11; Foreign Affairs Council conclusions on Libya of 21 March 2011, para 7; Conclusions of the European Council of 25 March 2011, paras 25-26. 83 See ‘Hermes 2011 Starts Tomorrow in Lampedusa’ accessed 12 April 2011. 84 “France and Italy push for reform of Schengen treaty”, BBC News, 26 April 2011 accessed 28 April 2011. 85 Arts. 2 and 3 of Council Decision 2011/210/CFSP.

Part V Implementing the Responsibility to Protect

18

A Responsibility to Protect or Preclude? Examining the Beneficiaries of the Responsibility to Protect Jennifer D. Halbert

This chapter examines the beneficiaries of the Responsibility to Protect (RtoP). It argues that it is imperative that we develop a coherent approach to RtoP beneficiaries so that it can be implemented to serve those who require protection in each case. Part one outlines certain trends in state practice recognising either ‘civilians’, ‘citizens’ or ‘people’ as RtoP beneficiaries. It suggests that some states appear to have used these terms in their legal sense, opening up the possibility that recognition of RtoP beneficiaries could become dependent on whether those requiring protection have formal citizenship of the state, for example. It argues that a ‘citizens’, ‘civilians’ or ‘people’ approach could act to narrow or widen the scope of RtoP, including such wider aspects as its territorial scope. Moreover, it argues that the identity of RtoP beneficiaries could affect our understanding of the broader obligations to which RtoP relates, not least those whom international criminal and humanitarian law recognise as the protected persons of mass atrocity crimes. Part two explains that international actors have recognised RtoP beneficiaries generally on a case-by-case basis, according to the protected persons of the RtoP crime apprehended in each context. It argues that international practice suggests that the identity of RtoP beneficiaries will be variable, depending upon the circumstances at hand. The view is taken that, although logical, this approach could lead to overly legalistic debates regarding whether or not the legal elements of an RtoP crime have been established in each case. Significantly, such an approach could delay the effective implementation of RtoP, potentially undermining any expectation that it could bring us closer to the ideal of ‘Never Again’.1

1 Introduction Since RtoP’s articulation by the International Commission on Intervention and State Sovereignty (ICISS) in 2001,2 the issue of the identity of its beneficiaries has been approached in a variable manner. From the Report of the ICISS to that of

J e nni f er D . H alb ert / 274

the former UN Secretary-General,3 the identity of RtoP beneficiaries alternated between ‘groups’,4 ‘civilians’,5 ‘citizens’,6 ‘people’7 and ‘civilian populations’.8 During the drafting of the Outcome Document of the World Summit 2005 (WSO Document),9 states narrowed the identity of beneficiaries to a choice between ‘civilians’ or ‘populations’. One group10 favoured a ‘civilians’ approach, calling for the section on RtoP to be re-entitled ‘The Responsibility to Protect Civilian Populations’.11 This call was opposed by Rwanda12 and Sweden,13 who argued that all members of states’ ‘populations’ should be beneficiaries of RtoP, irrespective of whether they have status as ‘civilians’.14 It was this argument that won the day, with states endorsing the final text of the WSO Document which directs that states and the international community have a responsibility to protect their ‘populations’ from genocide, war crimes, crimes against humanity and ethnic cleansing.15 Since 2005, international and regional documents16 referring to RtoP have affirmed that ‘populations’ are RtoP beneficiaries. This perhaps is unsurprising, because ‘populations’ is an all-inclusive term in any case, and does not expressly require its members to have a particular identity or status. In spite of this, international and state practice have not consistently recognised ‘populations’ as RtoP beneficiaries. A review undertaken (by the present author) of statements made by 257 states during relevant UN debates17 indicates that 70 per cent of these statements recognise beneficiaries as ‘civilians’, ‘citizens’ or ‘people’.18 Furthermore, beneficiaries were identified in Darfur,19 Kenya,20 Myanmar21 and the Democratic Republic of Congo,22 in accordance with the protected persons of the mass atrocity crimes relevant to specific contexts. This may call into question the more inclusive concept of beneficiaries adopted in the official documents, raising a host of issues of a doctrinal and practical nature. Nonetheless, the issue of RtoP beneficiaries has not been subject to detailed analysis in the literature.23 Before reviewing the approaches within state and international practice, it is essential to outline what an RtoP ‘beneficiary’ is. Under RtoP, beneficiaries would be those who would gain protection from mass atrocity crimes by either a state or international community. First, they would benefit from a state’s implementation of ‘appropriate and necessary means’ (emphasis added)24 to protect its populations from RtoP crimes. Second, they would benefit from the measures adopted by the international community to assist the state to protect its populations from RtoP crimes.25 Finally, they would benefit from the international community’s implementation of peaceful means26 or, indeed, collective use of force,27 to ensure that they are protected from RtoP crimes.

2

State Practice

As noted earlier, 70 per cent of state statements refer to RtoP beneficiaries as ‘civilians’, ‘citizens’ or ‘people’, but not specifically as ‘populations’. It is unclear whether states used these terms generically or in accordance with their legal meaning, but

A Res pon s i b i li ty t o Pro t ect o r Pre c lude? / 275

examination of the statements opens up the possibility that at least some states did use these terms in their legal sense. For example, a number of the states who referred to ‘civilians’ as RtoP beneficiaries are those with a history of hostilities or conflict. Sri Lanka,28 Sierra Leone29 and Palestine30 are key examples. Similarly, a few of the states who recognised ‘people’ as beneficiaries suggested that RtoP can affect a people’s right to self-determination.31 Iceland, for instance, stated that RtoP would assist in ‘redressing the imbalance’32 toward the ‘key commitments to the peoples enshrined in the Charter’ (emphasis added).33 Of course, these are simply illustrations of how certain states have used these terms. They do not demonstrate that all states used them in accordance with their legal meaning. Nevertheless, it is useful to consider how recognising ‘civilians’, ‘people’ or ‘citizens’ as RtoP beneficiaries could affect RtoP and the existing obligations to which it relates.

2.1 Implications for Responsibility to Protect

This writer would argue that recognising ‘civilians’ and ‘citizens’ as beneficiaries entails a risk that RtoP could be implemented too widely or too narrowly in future practice. During the Russia-Georgia conflict in 2008, the Foreign Minister of the Russian Federation stated that the Federation would ‘exercise the responsibility to protect’ ‘Russian citizens’ (emphasis added) 34 residing in South Ossetia. This writer would argue that the statement suggests that the Foreign Minister considered that the Russian Federation owed its ‘citizens’ a protective duty, both under the national constitution35 and RtoP itself, despite the fact that the ‘citizens’ at issue resided outside the territorial borders of the Federation. This raises the possibility that, if a ‘citizens’ approach to RtoP beneficiaries was adopted, RtoP could again be applied contrary to its perceived territorial scope. The WSO Document did not expressly address the territorial scope of RtoP. However, this writer would argue that the drafting history of the WSO Document suggests that RtoP was intended to provide for the protection of ‘populations’ within the territorial borders of each state against RtoP crimes. Originally, paragraph 138 read as ‘each individual State, first and foremost’ (emphasis added)36 owes ‘populations’37 RtoP. This was later altered to read as ‘each individual State’38 owes RtoP to ‘its populations’ (emphasis added).39 Arguably, by removing the terms ‘first and foremost’, states indicated that they considered that states only owe RtoP to those within their territorial borders and not to their ‘citizens’ who reside within the territory of another state, as the Russia-Georgia conflict suggested.40 A ‘citizens’ approach to beneficiaries could therefore result in RtoP again being cited in a way which exceeds the territorial scope for which it was intended. The use of the terms ‘civilians’ or ‘citizens’ could also restrict the sphere of application of RtoP and exclude, in practice, certain sections of states’ ‘populations’ from the protection afforded by RtoP.41 While a ‘civilians’ approach would exclude those without ‘civilian’ status from protection under RtoP, for example members of armed

J e nni f er D . H alb ert / 276

groups or child soldiers, a ‘citizens’ approach could exclude those who ‘do not usually acquire the citizenship of the state in which they temporarily establish themselves’,42 such as refugees.43 Significantly, a ‘citizens’ approach could therefore affect the enforcement of RtoP in cases where the international community considers that the mistreatment of refugees could amount to an RtoP crime. Second, it could narrow the substantive scope of RtoP. The recognition of ‘civilians’ as RtoP beneficiaries could effectively exclude certain war crimes from the scope of the doctrine, thereby limiting the circumstances in which RtoP could be legitimately implemented as a protection mechanism. For instance, a ‘civilians’ approach would prevent RtoP from being used in situations involving the conscription or enlistment of child soldiers44 or, further, the treacherous killing or wounding of combatants.45 One might argue that these acts should not be included within the scope of RtoP because they are not looked upon as grave breaches of international humanitarian law and, therefore, a ‘civilian’ approach to beneficiaries would ensure the implementation of RtoP to protect only those at risk from the most heinous crimes. Indeed, it was this view that seemed to lead the United States to call for RtoP to apply for the protection of ‘civilians’, as opposed to ‘populations’, during the drafting of the WSO Document. The Representative of the United States stated that the international community should implement RtoP in order to protect ‘civilian populations’ in situations ‘involving genocide, ethnic cleansing, crimes against humanity and other large-scale atrocities’ (emphasis added).46 Furthermore, in a letter to the President of the General Assembly,47 the United States Representative suggested that the section on RtoP within the WSO Document should omit the express reference to ‘war crimes’. The Representative suggested that it should instead state that RtoP can apply to ‘other large-scale atrocities’,48 in order to clarify that RtoP: does not apply to all war crimes, but only those that are of sufficient scale to warrant such international attention. This is in keeping with the approach in the Geneva Conventions themselves, which distinguish between ‘grave breaches’ of the Convention, and other violations.49

Given that grave breaches of the Geneva Conventions generally concern acts perpetrated against ‘civilians’,50 it would appear that the United States considered that the final text of the WSO Document should make clear that RtoP would not apply to other war crimes, specifically those perpetrated against persons without status as ‘civilians’. This approach would undermine the argument that, in principle, RtoP applies to all war crimes and not merely those recognised as grave breaches of the laws of war. Moreover, it would effectively send out the message to states that no action would be taken by the international community under RtoP against those perpetrating war crimes against non-civilians. Although liability could still arise for the perpetration of these acts under existing obligations, such as the Rome Statute of the International Criminal Court, excluding these war crimes from the scope of RtoP would restrict the doctrine’s deterrent value. For example, the mere prospect

A Res pon s i b i li ty t o Pro t ect o r Pre c lude? / 277

of the international community using force in response to such acts may help to deter their perpetration. Of course, some might argue that RtoP should not apply to the harm caused to members of armed groups because this would overly inhibit military activities,51 including those undertaken for the protection of populations from RtoP crimes. But does this argument hold when the harm is ‘conscience-shocking’?52 Is there not an argument to be made that RtoP should apply to heinous war crimes against non-civilians? Similarly, it may be difficult to see what role RtoP would serve in relation to the recruitment or conscription of child soldiers. Certainly, this author would concur with the view that this would probably not warrant the implementation of RtoP through collective force.53 The Secretary-General’s 2009 Report on Implementing RtoP54 points to why the scope of RtoP should not totally exclude the treatment of child soldiers, however. As an example of good practice, the report cites how some states have trained their national judiciaries to more effectively address child soldiers and their subsequent reintegration into the community.55 Reference is also made to the international community encouraging states to release child soldiers from armed groups or forces.56 Retaining ‘war crimes’ generally under RtoP could therefore be beneficial for both (i) child soldiers, in terms of their rehabilitation and release; and (ii) civilians, in so far as the release of child soldiers from armed groups can help prevent any further war crimes being committed against them and progress post-conflict reconciliation. To do otherwise opens up the possibility that the approach taken to RtoP beneficiaries could limit the means which can be used to implement RtoP in practice. For instance, a ‘civilian’ approach could preclude using means which are targeted at releasing and rehabilitating child soldiers.57 Likewise, adopting a ‘citizen’ approach could equally weaken RtoP as a protection tool for refugees by excluding the possibility of adopting measures aimed at improving their security in RtoP contexts, such as the recommendation that states ‘become parties to the relevant international instruments on human rights, international humanitarian and refugee law’.58

2.2 Implications for Existing Obligations

As noted earlier, it is possible that the definition of RtoP beneficiaries could impact not only the scope of RtoP but also existing international human rights, humanitarian and criminal obligations to which RtoP relates. 2.2.1 International Human Rights Law

International human rights law recognises ‘people’ as the holders of the right to self-determination.59 Furthermore, there exists a general consensus that there is no right to use force to help groups enforce a claim to this right.60 The present writer would argue that by recognising ‘people’ as RtoP beneficiaries, this could further complicate the role of RtoP in contexts where a group seeks recognition of their status as a ‘people’ with a right to self-determination.

J e nni f er D . H alb ert / 278

It may be helpful to first outline what this role might be. The WSO Document made clear that RtoP was to be implemented in relation to four specific crimes. Accordingly, the international community can apply RtoP in cases where a group claiming recognition as a ‘people’ are threatened by, or the victims of, the four crimes. The purpose of any RtoP intervention in such cases would therefore be to protect the group from the four crimes, not to help them gain self-determination.61 Providing for the use of force under RtoP to help protect those at risk from mass atrocity crimes could lead to RtoP being implemented in instances of socalled ‘suicidal rebellions’.62 In short, ‘suicidal rebellions’ can be understood as cases where a group within a state deliberately cause the state to perpetrate mass atrocity crimes against them. This is done in order to compel the international community to forcibly intervene in the state to protect them63 and to recognise them as a ‘people’ with a remedial right to self-determination.64 Viewed in this light, the use of the term ‘people’ in describing the beneficiaries of RtoP could simply compound or exacerbate the risk of ‘suicidal rebellions’65 being undertaken by groups claiming self-determination in order to bring about collective intervention under RtoP. The danger then is that if the international community implements RtoP, it could be seen as recognising indirectly the group as a ‘people’ with a remedial right to selfdetermination. This would put RtoP in the centre of the debate over whether such a right exists and, moreover, on the outer edge of the international consensus that force should not be used to help attain self-determination.66 Perhaps most significantly, the RtoP intervention may result in the group being given some form of autonomy to prevent further hostilities.67 Although this will usually uphold the territorial integrity of the existing state, in some cases there is a risk that secession of the group may be the end result of the intervention. This would undermine the self-determination of the ‘people’ of the existing state, strengthening existing reservations that RtoP’s implementation by the international community will challenge the right to self-determination as traditionally conceived. Cuba, for example, has stated that it: rejects the attempt to impose the acceptance of the so-called ‘responsibility to protect’, which in the current world situation will only facilitate interference, pressure and intervention in the domestic affairs of our States by the superpowers and their allies, openly and permanently threatening the full enjoyment of the right to self determination of our peoples.68

Given that international human rights law does not recognise some groups as a ‘people’,69 a conflict could arise between the definition of a ‘people’ under (i) the right to self-determination, implemented generally; and (ii) the right to self-determination, implemented in a specific RtoP context.

A Res pon s i b i li ty t o Pro t ect o r Pre c lude? / 279

2.2.2 International Criminal and Humanitarian Law

International criminal and humanitarian law do not require that victims of mass atrocity crimes have formal citizenship of the state in which the crimes at issue were perpetrated. Moreover, they clearly state that persons not possessing the status of ‘civilians’ are to be protected from war crimes, in certain circumstances. Prominent examples include members of armed forces or groups, and child soldiers. In view of this, it could be argued that recognising ‘citizens’ and ‘civilians’ as RtoP beneficiaries would directly contradict those who are recognised by international law as persons protected from mass atrocity crimes. Perhaps the most significant effect on international humanitarian law of identifying ‘civilians’ as RtoP beneficiaries is that it would undermine the established scope of ‘war crimes’. The laws of war extend beyond grave breaches of the Geneva Conventions to ‘other serious violations of the laws and customs’70 applicable in armed conflicts, thereby providing some protection to those who do not have ‘civilian’ status. As argued earlier, any adoption of a ‘civilians’ approach to RtoP beneficiaries could narrow the application of RtoP to only grave breaches of the Geneva Conventions, thereby excluding war crimes perpetrated against non-civilians. Consequently, any recognition of ‘citizens’ or ‘civilians’ as RtoP beneficiaries could lead to a conflict between those whom we recognise as the protected persons of mass atrocity crimes (i) generally (as defined under existing obligations); and (ii) those perpetrated in a specific RtoP context (as defined according to the beneficiaries of RtoP). Moreover it could lead to variations between the scope of ‘war crimes’ (i) under existing obligations (that is, grave and other breaches perpetrated against civilians and those actively engaged in hostilities); and (ii) under RtoP (that is, grave breaches perpetrated against ‘civilians’).

2.3 A Counter-Argument

If those threatened by the four crimes in a specific case did not meet the legal definition of ‘civilians’, ‘citizens’ or ‘people’, one could argue that the international community would still implement RtoP. It seems reasonable to expect that the international community would not fail to implement RtoP simply because those threatened by RtoP crimes were not ‘citizens’ of the state at issue, for example. Rather, one would expect that any assessment made prior to RtoP’s implementation should require only identification of who needs protection in each case. Indeed, international practice has recognised RtoP beneficiaries generally on a case-by-case basis, in accordance with the protected persons of the RtoP crime apprehended in each particular instance.

3

International Practice

In the cases of Kenya, Darfur, Myanmar and the Democratic Republic of Congo, international actors identified RtoP beneficiaries as the ‘civilian population’,71 that

J e nni f er D . H alb ert / 280

is, the protected persons of crimes against humanity, when this crime was perceived to be being committed. For example, the Special Advisor to the UN SecretaryGeneral, Edward Luck, advised that the application of RtoP to the situation in Myanmar would require the existence of ‘murder or extermination committed as part of a widespread or systematic attack against the civilian population’ (emphasis added).72 Similarly, when the European Parliament feared that RtoP crimes were being committed in Myanmar, they identified RtoP beneficiaries as the ‘victims’73 of RtoP crimes. This suggests that international actors originally identified RtoP beneficiaries on a case-by-case basis, in accordance with the protected persons of the mass atrocity crimes apprehended in each context. At first sight, this approach appears both legitimate and reasonable. It tries to ensure that RtoP is implemented for the victims of the RtoP crimes being perpetrated in any given case. Nevertheless, this writer would argue that identifying beneficiaries in accordance with the crimes at issue entails implications which, in turn, could undermine the effective implementation of RtoP.

3.1 Potential Implications

Primarily, the approach calls into question whether it is possible to maintain a general term for RtoP beneficiaries, such as ‘populations’. It will be recalled that RtoP calls upon the international community to provide international assistance to states ‘before crises and conflicts break out’ (emphasis added).74 One may therefore question how this approach could be effectively applied in cases where there are no immediately recognisable ‘victims’ to identify as RtoP beneficiaries. It may be that in cases where the criminal context has not yet become apparent, international actors may recognise beneficiaries under the more comprehensive term of ‘populations’. However, this could lead to the identity of RtoP beneficiaries also varying in line with the way in which RtoP is implemented in any given case. As an illustration, in contexts where RtoP crimes have already occurred, the beneficiaries of a ‘timely and decisive’75 response would be the victims of the crimes committed. However, in situations where the criminal context was not yet apparent, the beneficiaries of international assistance might be the ‘populations’ of the recipient state. The idea that beneficiaries might vary according to the means through which RtoP is implemented might pose little threat to the actual enforcement of RtoP, but it does tend to undermine the prospect of developing any concrete and coherent approach to a clear recognition of RtoP beneficiaries. The approach also raises the question of whether it could be applied in a straightforward manner in cases of ethnic cleansing. As some RtoP commentators76 have rightfully noted, ethnic cleansing has not been codified as an individual ‘crime’ under international criminal law. Without an accurate definition of the protected persons of ethnic cleansing, one could question whom international actors would recognise as RtoP beneficiaries in cases involving this ‘crime’. Essentially, two approaches could be taken. On the one hand, international actors could take into account the argument that ‘ethnic cleansing’ is but another term for some forms of

A Res pon s i b i li ty t o Pro t ect o r Pre c lude? / 281

crimes against humanity77 and, therefore, identify as beneficiaries the ‘civilian population’78 when ethnic cleansing is apprehended. Alternatively, international actors could follow the approach used by the UN Secretary-General’s Special Advisors79 in relation to Kyrgyzstan, by identifying beneficiaries as the particular ethnic group being harmed within the specific context. However, it remains to be seen which, if any, of these two approaches will be adopted in future cases potentially involving ethnic cleansing. Finally, identifying beneficiaries according to the protected persons of RtoP crimes essentially requires relevant actors to conduct a demanding assessment before RtoP can be implemented. They must determine (i) which RtoP crime is being committed; (ii) who the protected persons of that crime are; and (iii) who the beneficiaries of RtoP are in each case. This raises the possibility that the effective implementation of RtoP could be undermined, even entirely precluded, by complex evaluations of whether the legal elements of the four crimes have actually arisen in each context. This approach could create arguments that RtoP’s criminal basis influences the international community’s responses to mass atrocity crimes. This is undesirable, given that RtoP is intended to ensure that we must not fail again to respond to mass atrocities. It will be recalled that the international reaction to Rwanda is understood to have been partly hindered by debates over whether the legal elements of genocide were actually present.80 Obviously, linking RtoP to international crimes risks enforcement being delayed by questions regarding whether the acts in question meet the legal definition of international crimes. This is inevitable. What is not inevitable is that enforcement is delayed by legalistic debates regarding whether harm is being committed against the necessary protected persons. For instance, is the group at issue a distinct ‘ethnic’ group, as per the crime of genocide? The WSO Document states that ‘populations’ are to be protected ‘from’ the four crimes. It does not state that RtoP can be implemented only ‘in the event of ’81 those crimes. This suggests, albeit implicitly, that to implement RtoP, the international community need not wait on the legal elements of the four crimes fully manifesting. Accordingly, waiting for the legal elements of a mass atrocity crime to arise in order to determine (i) whether RtoP can be implemented; and (ii) who its beneficiaries are, seems to restrict RtoP’s implementation unnecessarily.

4

Responsibility to Protect Beneficiaries: A Way Forward?

The objective of this chapter was to show that, notwithstanding the apparent consensus on the definition of RtoP beneficiaries in the WSO Document, a consistent approach to this issue has not always been adopted and that this lack of consistency raises important issues of a doctrinal and practical nature. Despite states’ unanimous acceptance of the WSO Document, and the references to RtoP beneficiaries as ‘populations’, RtoP beneficiaries remain the subject of competing views among

J e nni f er D . H alb ert / 282

states and have been defined in a variable manner in international practice. At one level, this may be the natural result of RtoP encompassing four crimes, each of which protect different persons. At another level, it may reflect the reality that states will have a preference for protecting some sections of their populations over others. The present chapter has also sought to raise the profile of an issue that has received little attention to date in the academic literature. Commentators have tended to simply assert that ‘populations’ are RtoP beneficiaries. The present discussion calls into question two arguments made more generally within RtoP literature. First, as only a quarter of states refer to ‘citizens’ as beneficiaries, we cannot conclusively accept Aba’s suggestion that RtoP establishes ‘a relationship between state and people which is in many ways the reverse of the old concept: a relationship built on notions of citizenship’ (emphasis added).82 Furthermore, it is perhaps too much to suggest that ‘the real test for RtoP’83 is whether it develops to focus upon the protection needs of particular sections of states’ ‘populations’, such as refugees. Some states’ preference for identifying beneficiaries as ‘citizens’ of the state might suggest that ‘the real test for RtoP’84 will be whether refugees actually come to be recognised as RtoP beneficiaries at all. The question then arises as to how one can move forward. We might take direction from the approach which has been adopted in identifying beneficiaries by some international actors in the more recent situations in Guinea and Côte d’Ivoire. With regard to events in Guinea, the UN Secretary-General reminded state authorities that they owe RtoP to ‘all Guineans, regardless of their ethnicity, religion or political affiliation’.85 The Secretary-General’s Special Advisors adopted a similar approach in relation to Côte d’Ivoire, recalling that the authorities owe RtoP to ‘all populations in Côte d’Ivoire, irrespective of their ethnicity, nationality or religion’.86 It is unclear what caused a shift in how these international actors identified RtoP beneficiaries in these cases. Nevertheless, it is this writer’s recommendation that it be followed in future practice. By specifying that ‘all populations’87 should be protected, the approach makes clear that it is unacceptable for states to determine whom they will protect from RtoP crimes on the basis of identity (for example, non-citizens) or status (for example, non-civilians). Furthermore, the approach takes into account the specifics of each context and adapts RtoP beneficiaries accordingly, thereby retaining the flexibility of the approach originally taken in international practice. In view of the political basis to events in Guinea, the Secretary-General specified that populations should be protected regardless of their ‘political affiliation’.88 However, the ethnically motivated events in Côte d’Ivoire led to the Special Advisors specifying that populations should be protected irrespective of their ‘ethnicity’.89 Two issues might be taken into account. First, whilst it is beneficial for noncitizens to expressly state that nationality does not preclude protection, it could strengthen arguments that RtoP extends to nationals residing in another state. Second, there is the risk that the approach could be seen as an exhaustive list of who in

A Res pon s i b i li ty t o Pro t ect o r Pre c lude? / 283

fact is protected under RtoP. This could result in arguments over whether or not a group not expressly identified within the list is actually a beneficiary. To overcome these difficulties, any codification of RtoP within future UN Resolutions could expressly clarify that states owe RtoP to populations within their territorial borders. Furthermore, it might draw upon the way in which international criminal law reconciled similar tensions to that facing RtoP. Drafters of the Rome Statute were faced with the challenge of ensuring that crimes against humanity were clearly defined, but sufficiently flexible to cover new crimes that might emerge within later practice. The solution was to include the non-exhaustive category of ‘other inhumane acts’.90 Consequently, this writer would suggest that future guidance might consider affirming that states and the international community owe RtoP to ‘all populations permanently or temporarily resident within the territorial borders of the state, irrespective of race, ethnicity, nationality, political affiliation or other features’. Of course, the most robust statement of RtoP beneficiaries on paper does not guarantee that it will not be widened, restricted or otherwise altered in practice. Future research on developing RtoP from ‘political rhetoric’91 to ‘legal norm’92 might, therefore, include suggestions regarding how to monitor that its beneficiaries are appropriately recognised in practice. As Edward Luck noted most eloquently at the conference: ‘it is very important that all the people on your territory, be they citizens, be they immigrants, legal or illegal, you have a responsibility to protect if they are on your territory’.93

Notes 1 ‘Alas, there is an ocean between rhetoric and practice as far as genocide, crimes against and humanity and war crimes are concerned … what the endorsement of the “responsibility to protect” offers to us for the first time, a founding block upon which the whole international community can build legitimate and effective tools to prevent and put an end to the most serious crimes affecting humankind, as well as rebuild societies shattered by such atrocities’ (emphasis added). R Cooper and J Kohler, ‘The Responsibility to Protect: The New Global Moral Compact’ (August 2006) 1, 5 accessed 11 January 2011. 2 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) accessed 6 June 2011 (ICISS Report). 3 Report of the Secretary-General ‘In Larger Freedom: Towards Development, Security and Human Rights for All’ (2005) UN Doc. A/59/2005 (In Larger Freedom Report). 4 ICISS Report (n 2) paras 3.23, 8.31. 5 In Larger Freedom Report (n 3) 35; Report of the High-Level Panel on Threats, Challenges and Change ‘A More Secure World: Our Shared Responsibility’ (2004) UN Doc A /59/565 (High-Level Panel Report) 73. 6 High-Level Panel Report (n 5) 66; ICISS Report (n 2) 13. 7 High-Level Panel Report (n 5) 1, 9, 31, 61; ICISS Report (n 2) 17.

J e nni f er D . H alb ert / 284

8 In Larger Freedom Report (n 3) 35. 9 UNGA, ‘2005 World Summit Outcome’ (2005) UN Doc A/60/L 1 (WSO Document) paras 138-39. 10 Including Cuba, Egypt, Russian Federation and Syria. See the World Federalist Movement, ‘State-by-State Positions on the Responsibility to Protect’ (11 August 2005) accessed 11 January 2011 (WFM Report). See also, Statement of the Representative of Pakistan to the UNGA, ‘Informal Meeting of the Plenary on the High Level Plenary Meeting of the General Assembly of September 2005’ ( June-July 2005) accessed 11 January 2011 (Statement of the Representative of Pakistan). 11 Or, alternatively, ‘The Protection of Civilians’. See Statement of the Representative of Pakistan, ibid. 12 Statement of the Representative of Rwanda to the UNGA in the WFM Report (n 10). See also Representative of Rwanda to the UNGA, ‘Proposed R2P Language for September Outcome Document’ (29 July 2005) accessed 11 January 2011. 13 Statement of the Representative of Sweden to the UNGA in the WFM Report (n 10). 14 For example, Sweden is summarised by the World Federalist Movement as having argued that ‘R2P should address the population as a whole, not just have text on the civilian population’, ibid. 15 WSO Document (n 9). 16 See especially: Report of the Secretary-General, ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677 (Implementing the Responsibility to Protect Report) para 8; UNSC Res 1674 (28 April 2006) UN Doc S/RES/1674, para 4; UNHRC, ‘Prevention of Genocide’ (25 March 2008) UN Doc A/HRC/7/L.26, 4; European Parliament Res ‘The Situation in Darfur’ (2006) EP Doc P6_TA(2006)0387, para E; African Commission on Human and Peoples’ Rights Res ‘Strengthening the Responsibility to Protect in Africa’ (28 November 2007) AU Doc. ACHPR/Res.117 (XXXXII) 07, para 5. 17 The surveyed statements are available at accessed 7 June 2011 and accessed 28 August 2010. 18 46 per cent of the surveyed statements suggested that ‘civilians’ were the beneficiaries of RtoP, 27 per cent suggested that ‘citizens’ were the beneficiaries of RtoP and 27 per cent suggested that ‘people’ were the beneficiaries of RtoP. For examples see accessed 7 June 2011. 19 See accessed 7 June 2011. 20 Statement of the Special Advisor to the Secretary-General on the Prevention of Genocide (28 January 2008) in UNDPI, ‘The United Nations and Kenya: Briefing Note’ (7 February 2008) accessed 7 June 2011 (The UN and Kenya), 4. 21 E Luck, ‘Testimony before Subcommittee on International Development, Foreign Assistance, Economic Affairs and International Environmental Protection’, Committee on Foreign Relations, U.S Senate (17 June 2008) in R Cohen, ‘Reconciling R2P with IDP Protection’ (2010) 2 GRtoP 15, 25; European Parliament Res ‘Tragic Situation in Burma’ (22 May 2008) EU Doc P6_TA(2008)0231 para K (Tragic Situation in Burma). 22 UN Press Release, ‘Human Rights Council Calls for the Immediate End to all Human Rights Violations in the Democratic Republic of Congo’ (1 December 2008) accessed 11 January 2011 (Call for End to Human Rights Violations in the DRC). 23 With the exception of Luck, who emphasised at the conference that, in his view, the WSO Document took a major step forward from the ICISS Report by identifying beneficiaries as ‘populations’ as opposed to ‘citizens’. E Luck, ‘The Normative Journey: The Evolution of the R2P Concept’ (Keynote address at the European Science Foundation Conference: The Responsibility to Protect from Principle to Practice, Linkoping, Sweden, 9 June 2010). 24 WSO Document (n 9) para 138. 25 Ibid para 138-39. 26 Ibid para 139. 27 Ibid para 138. 28 Statement of the Representative of Sri Lanka, UNSC Verbatim Record (December 2009) UN Doc S/PV/6216(Res.1); Statement of the Representative of Sri Lanka, UNGA Meeting Record (28 July 2009) UN Doc A/63/PV/100. 29 Statement of the Representative of Sierra Leone, UNGA Meeting Record (28 July 2009) UN Doc A/63/PV/100. 30 Statement of the Representative of Palestine, UN Press Release, ‘Delegates Weigh Legal Merits of Responsibility to Protect Concept as General Assembly Concludes Debate’ (28 July 2009) UN Doc GA/10850. 31 See statements available at accessed 28 August 2010. 32 Statement of the Representative of Iceland, UNGA Meeting Record (15 September 2005) UN Doc A/60/PV/6. 33 Ibid. See also Statement of the Representative of Poland, UNGA Meeting Record (16 September 2005) UN Doc A/60/PV/7; Statement of the Representative of Estonia, UNGA Meeting Record (15 September 2005) UN Doc A/60/PV/6. 34 — —, ‘Interview by Minister of Foreign Affairs of the Russian Federation Sergey Lavrov to BBC’ (Moscow, 9 August 2008) accessed 11 January 2011 (Interview to BBC). See also the Statement of the Representative of the Russian Federation ‘The Situation in Georgia’, UNSC Verbatim Record (8 August 2008) UN Doc S/ PV/5952. 35 The Foreign Minister may have been referring to the constitutional assurance that the ‘Russian Federation shall guarantee to its citizens protection and patronage abroad’, Constitution of the Russian Federation 1993 (adopted by referendum 12 December 1993, entered into force 25 December 1993) Art 61 (2). 36 UNGA President, ‘Revised Draft Outcome Document of the High-Level Plenary Meeting of the General Assembly of September 2005’ (5 August 2005) UN Doc A/59/HLPM/ CRP.1/Rev.2, 28: 118. 37 WSO Document (n 9) 138. 38 Ibid. 39 Ibid. 40 Commentators have reasoned the removal of the phrase ‘first and foremost’ differently. Bellamy has eg contended that the phrase was removed because it implied that the nature of the responsibilities of the state and international community were of a similar character. See in particular A Bellamy, ‘Whither the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit’ (2006) 20 (2) Eth & Intl Aff 143, 163-64. Furthermore, commentators have denounced the citation of RtoP by the Russian Federation

J e nni f er D . H alb ert / 286

during the Russia-Georgia conflict in additional ways, not least that it tends to confuse RtoP with the wider concept of the protection of nationals abroad. See eg T Ruys, ‘The “Protection of Nationals” Doctrine Revisited’ (2008) JC & SL 13 (2) 233, 267–68; and International Crisis Group, ‘Russia vs. Georgia: The Fallout’ (Europe Report No 195 August 2008) accessed 28 August 2010. Evans makes a similar assertion, stating that ‘the statement by Foreign Minister Lavrov blurred the distinction between the responsibilities of a state to protect its populations inside its borders, and the responsibilities that a state maintains for populations outside its borders. The responsibility to protect is about the responsibility of a sovereign state to protect populations within its own borders’ (emphasis original). G Evans, ‘Russia, Georgia and the Responsibility to Protect’ (2009) Amsterdam Law Forum 2 (1) accessed 28 August 2010. 41 According to Luck, a ‘citizens’ approach to RtoP beneficiaries represents ‘a way, obviously, of qualifying certain portions of your population’. Luck (n 23). 42 UNCHR (Sub-Commission), ‘Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities’ (1979) UN Doc E/CN.4/Sub.2/384/Rev.1, 10. 43 Ibid State opinion suggests that a ‘citizens’ approach may arise from some states’ reluctance to recognise persons temporarily within their territory as RtoP beneficiaries. Refugees have only been expressly detailed as RtoP beneficiaries by Greece. See Statement of the Representative of Greece, UNSC Verbatim Record (28 June 2006) UN Doc S/PV/5476. To date, only Chile and Swaziland have expressly accepted RtoP as encompassing protective obligations for non-nationals. Swaziland most clearly committed to this undertaking, directing that RtoP clearly encompasses an ‘obligation to protect immigrating populations’. See statement of the Representative of Swaziland, UNGA Meeting Record (28 July 2009) UN Doc A/63/PV/100. See also statement of the Representative of Chile, UNGA Meeting Record (24 July 2009) UN Doc A/63/PV/98. A ‘citizens’ approach could also exclude those who cannot meet the requirements of citizenship due to national restrictions even though they have lived there for generations. 44 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (Rome Statute) Art 8 (2) (b) (xxvi) and Art 8 (2) (e) (vii). 45 Ibid Art 8 (2) (b) (xi) and Art 8 (2) (e) (ix). 46 Statement of the Acting Representative of the United States to the UN General Assembly, ‘US Proposals for UN Reform’ (22 June 2005) accessed 11 January 2011, 5. 47 Letter of the US Ambassador John Bolton to the UN General Assembly President (30 August 2005) accessed 11 January 2011. 48 Ibid. 49 Ibid. 50 That is, those taking no active part in hostilities or hors de combat. See Rome Statute (n 45) art 8 (2) (a) and (c). 51 The ICISS expressly recommended that the use of force under RtoP comply with international humanitarian law. ICISS Report (n 2) 37. On the difficulty between ensuring that military activities can be conducted effectively and that war crimes are not committed as a result of these activities, see R Cryer (ed), An Introduction to International Criminal Law and Procedure (Cambridge University Press, Cambridge 2007) 224-25. 52 ICISS Report (n 2) xiii.

A Res pon s i b i li ty t o Pro t ect o r Pre c lude? / 287

53 For example Scheffer has argued that ‘[i]n reality, not all atrocity crimes, particularly some categories of crimes against humanity and war crimes, necessarily justify military intervention as the most extreme application of R2P’. However, he correctly warns that ‘[d]rawing the line between atrocity crimes that would merit and those that would lack justification for military intervention could become an extremely difficult task in world affairs’. D Scheffer, ‘Atrocity Crimes Framing the Responsibility to Protect’ in R Cooper and J Kohler (eds), Responsibility to Protect The Global Moral Compact for the 21st Century (Palgrave Macmillan, New York 2009) 77. 54 Implementing the Responsibility to Protect Report (n 16). 55 Ibid 14. 56 Ibid 15. 57 Ibid 14-15. 58 Ibid 11. 59 International Covenant on Civil and Political Rights 1966 (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 art 1 (1); International Covenant on Economic, Social and Cultural Rights 1966 (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 art 1 (1). For a discussion of international human rights law and ‘people’ as holders of the right to self-determination, see generally J Rehman, International Human Rights Law, (2nd edn, Pearson, Harlow 2010) 472-73. 60 Gray has observed that ‘[i]n general the extension of the right to self-determination outside the colonial context in the break up of the USSR, Yugoslavia and Czechoslovakia has not brought with it any state support for the use of force for this end’. C Gray, International Law and the Use of Force (3rd edn, OUP, Oxford 2008) 64. 61 Although this may, as the ICISS suggested, be the ultimate result of the intervention or underline the need for the intervention. See ICISS Report (n 2) paras 35 and 43. 62 Kuperman’s Suicidal Rebellion theory is quoted in K Engle, ‘Calling in the Troops: The Uneasy Relationship between Women’s Rights, Human Rights and Humanitarian Intervention’ (2007) 20 Harv Hum Rts J 189, 138. See further A Kuperman, ‘The Moral Hazard of Humanitarian Intervention: Lessons from the Balkans’ (2008) 52 International Studies Quarterly 49. 63 To this effect, Engle has argued that ‘increasing support for forceful humanitarian intervention has pressed some warring factions and their advocates to argue that opponents are committing atrocities worthy of intervention’, ibid. On the possibility of this arising under RtoP, see R Belloni, ‘The Tragedy of Darfur and the Limits of the Responsibility to Protect’ (2006) 5 (4) EP 326, 331. 64 A remedial right to self-determination refers to the argument that gross human rights violations can activate a right to self-determination in order to put an end to and/or prevent future violations. Whether or not such a right exists remains the subject of debate. However, it continues to be advocated by some states, including by Germany and Ireland in their written statements to the ICJ concerning the Court’s Advisory Opinion with respect to the status of Kosovo. See accessed 2 February 2011. 65 Gray has argued that the use of force in response to mass atrocity crimes entails ‘clear dangers that this will encourage those seeking independence to use violence to provoke a repressive response’. Gray (n 62) 64. 66 Gray (n 62). 67 As the ICISS noted: ‘overthrow of regimes is not, as such, a legitimate objective, although disabling that regime’s capacity to harm its own people may be essential to discharging the mandate of protection – and what is necessary to achieve that disabling will vary from

J e nni f er D . H alb ert / 288

case to case’. Furthermore, the ICISS advised that ‘[t]he long-term solution for ethnic minority conflict or secessionist pressures within a state will often be some kind of devolutionist compromise that guarantees the minority its linguistic, political and cultural autonomy, while preserving the integrity of the state in question’. ICISS report (n 2) paras 35-36. 68 Statement of the Representative of Cuba to the UN General Assembly, ‘Informal Meeting of the Plenary on the High Level Plenary Meeting of the General Assembly of September 2005’ ( June-July 2005) accessed 28 August 2010. See also UN Press Release, ‘More than 40 Delegates Express Strong Scepticism, Full Support as General Assembly Continues Debate on Responsibility to Protect’ (24 July 2009) UN Doc GA/10849. 69 Minority groups are an example, typically distinguished from ‘people(s)’ due to a difference in what they aim to achieve. See generally, P Thornberry, ‘Self-Determination, Minorities, Human Rights: A Review of International Instruments’ (1989) 38 ICLQ 867; W Kymlicka, ‘The Internationalisation of Minority Rights’ (2008) 6 (1) IJCL 1. 70 See for example Rome Statute (n 45) Art 8 (2) (b) and Art 8 (2) (e). 71 See Statement of the Special Advisor to the Secretary-General on the Prevention of Genocide (28 January 2008) in The UN and Kenya (n 23) 4; Statement of the Representative of the Russian Federation, UNSC Verbatim Record (18 September 2004) UN Doc S/ PV/5040; Statement of the Representative of Brazil, UNSC Verbatim Record (18 September 2004) UN Doc S/PV/5040; Statement of the Representative of The Netherlands on behalf of the European Union, UNSC Verbatim Record (19 November 2004) UN Doc S/ PV/5082; Luck (n 21); Tragic Situation in Burma (n 21); Call for End to Human Rights Violations in the DRC (n 22). 72 Luck (n 21). 73 Tragic Situation in Burma (n 21). 74 WSO Document (n 9) para 139. 75 Ibid. 76 For example, J M Welsh, ‘Turning Word into Deeds? The Implementation of the Responsibility to Protect’ (2010) 2 GRtoP 149, 150. 77 See Scheffer (n 55) 79: ‘[a]s a matter of law, the invocation of ethnic cleansing in the mandates of R2P is a nontechnical expression for what in fact is a subcategory of the crime against humanity of persecution. That being said, ethnic cleansing is a very powerful term, so much so that there is a growing basis for regarding it as a crime against humanity deserving its own designation under the standard list of crimes against humanity’. 78 Rome Statute (n 45) Art 7 (1): ‘For the purpose of this Statute, “crimes against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’ (emphasis added). 79 Anticipating that ethnic cleansing might arise in Kyrgyzstan, the Advisors stated that ‘[t]he pattern and scale of the violence, which has resulted in the mass displacement of Uzbeks from South Kyrgyzstan, could amount to ethnic cleansing’ that the WSO Document ‘banned’ the perpetration or incitement of such acts. UN Press Release, ‘UN Special Advisors of the Secretary General on the Prevention of Genocide and the Responsibility to Protect on the Situation in Kyrgyzstan’ (15 June 2010) accessed 11 January 2011. 80 On the debates concerning the use of the term ‘genocide’ to refer to the events in Rwanda see eg R Dallaire, Shake Hands with the Devil: The Failure of Humanity in Rwanda (Arrow Books, London 2004) 343, 374.

A Res pon s i b i li ty t o Pro t ect o r Pre c lude? / 289

81 This approach was adopted by the High-Level Panel on Threats, Challenges and Change. See High-Level Panel Report (n 5) 66. 82 E Aba and M Hammer, Yes We Can? Options and Barriers to Broadening the Scope of the Responsibility to Protect to Include Case of Economic, Social and Cultural Rights Abuse (One World Trust, London 2009) 3. 83 S Rimmer, ‘Refugees, Internally Displaced Persons and the “Responsibility to Protect”’ (March 2010) New Issues in Refugee Research, Research Paper No 185, UNHCR. 84 Ibid. 85 UN Press Release, ‘Statement attributable to the Spokesperson for Secretary-General on Guinea’ (3 November 2010) accessed 2 February 2011 (Statement on Guinea). 86 UN Press Release, ‘UN Secretary-General’s Special Advisors on the Prevention of Genocide and the Responsibility to Protect on the Situation in Côte d’ Ivoire’ (29 December 2010) accessed 2 February 2011; UN Press Release, ‘Statement attributed to the UN Secretary-General’s Special Advisers on the Prevention of Genocide and the Responsibility to Protect on the Situation in Côte d’Ivoire’ (19 January 2011) accessed 2 February 2011. 87 Ibid. 88 Rimmer (n 84). 89 Statement of Guinea (n 86). 90 Rome Statute (n 45) Art 7 (1) (k). For a discussion of this provision see Cryer (n 52) 219. 91 C Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ (2007) AJIL 101 (1) 99. 92 Ibid. 93 Luck (n 23).

19

The Responsibility to Protect Unilateral Non-Forcible Measures and International Law Veronika Bílková

1

The Concept of Unilateral Non-Forcible Measures

The Responsibility to Protect (hereafter RtoP),1 as defined in the World Summit Outcome Document (WSO Document),2 is a narrow but deep concept that encompasses, under its three pillars, a set of highly diversified measures. The most politically disputed among them and also the most legally controversial are measures falling under the third pillar, which concerns ‘the timely and decisive response’3 by the international community to the manifest failure of the territorial state to protect its population from genocide, war crimes, ethnic cleansing, and crimes against humanity (hereafter RtoP crimes). Those measures can have different forms depending on the context in which they take place, the actors they involve, the authoritative backing they get, and the means they resort to. This text focuses on one particular type of third-pillar measures, namely unilateral non-forcible measures. The term, taken from the literature on sanctions,4 is used here to designate measures which are adopted by individual states, groups of states or international organisations to prevent or stop RtoP crimes. These measures have four main characteristics. First, they are non-consensual in nature, which means that they take place without the consent of the territorial state.5 This requirement is met both when the consent is explicitly denied and when it is prima facie given, but either lacks validity or the conduct allegedly based on it exceeds its limits.6 Second, the measures are unilateral, that is, adopted outside the United Nations (UN) system, without an authorisation from the UN Security Council. This excludes from the scope of the definition measures undertaken in the framework of sanction regimes established under Chapter VII of the UN Charter.7 Sanctions imposed by regional organisations and individual states, on the contrary, remain included,

V er on i k a B í lk ová / 292

because unlike the UN sanctions, they do not enjoy any privileged position under international law. Third, the measures are non-forcible in nature, in the sense that they do not involve the use of military force. That does not preclude them from being coercive in nature, as they in most cases will have to be to prevent or halt RtoP crimes. Yet, coercion needs to stop short of the use of military force. The measures can be compatible with international law or involve derogations from specific treaty provisions or general customary rules. Fourth, the measures are taken by states and organisations which are themselves not directly affected by the commission of RtoP crimes. This would typically mean they do not have their own citizens (officials in the case of an organisation) present in the territory of the state in which RtoP crimes are committed, or, more exactly, that their citizens (officials) do not become primary targets of such crimes. Examples of measures which reveal these four characteristics include political, diplomatic, economic or financial sanctions adopted outside the UN system.8 The sanctions may be comprehensive or targeted (smart) in scope. Comprehensive sanctions, such as total economic embargos, have an indiscriminate effect on the target country. Largely preferred in the past, they have become highly contested in the past decades due to the negative impact they have upon lives of the civilian population of the target country. Comprehensive sanctions seem particularly illsuited for RtoP cases, since they could further aggravate the humanitarian situation and exacerbate violent clashes over resources, making worse off those whom they are supposed to help. Targeted sanctions are on the contrary specifically directed against certain individuals or entities. They involve measures such as freezing of funds, diplomatic constraints or denials of visas. While not free of their own human rights problems,9 targeted sanctions are generally more appropriate in RtoP cases, because they allow for discrimination between perpetrators of RtoP crimes and their victims. The topic of unilateral non-forcible measures is not merely of academic interest, but also has practical relevance. Over the last decades, states and international organisations have shown an increasing tendency to resort to such measures in response to large-scale violations of human rights in other countries. The United States (US) and the European Union (EU) rank among the most active players in the area. More recently, they have been gradually joined by other states and organisations. The US is definitely the country with the longest and richest tradition of resorting to unilateral non-forcible measures. It is also the one which regularly invokes violations of human rights as the rationale for imposing such measures. The first instances occurred as early as in the 1970s, when the US adopted legislation prohibiting exports of goods and technology to Uganda, claiming that its government had committed genocide, one of the four RtoP crimes.10 In the subsequent decades, the US has enacted similar legislation11 with respect to a dozen states, such as South Africa (1986, apartheid),12 Burma/Myanmar (1988, disregard for human rights),13 Sudan (1997, violations of human rights, genocide)14 and Ivory Coast (2006, viola-

T h e R es p on s i b i li t y to Pro t ect / 293

tions of human rights, war crimes).15 While most of the sanctions have certainly had mixed motivations, the constant invocation of human rights violations and, indeed, explicit references to some of the RtoP crimes (genocide), indicate that the US sees unilateral non-forcible measures as a legitimate and lawful response to such situations. The European Union (or, originally, the European Community (EC)) began to contemplate the option of unilateral non-forcible measures already during the Cold War period, primarily with regard to the apartheid regime in South Africa.16 Yet, the option truly materialised only after 1990, when the EC/EU gradually developed the practice of imposing sanctions upon countries in which large-scale and systematic violations of human rights were taking place, even in the absence of an explicit authorisation by the UN Security Council.17 The first unilateral, nonauthorised measures were used against Yugoslavia in the early 1990s.18 Later on, the EC/EU adopted similar measures against others states, or their political elites, including Burma/Myanmar (1996),19 Zimbabwe (2003)20 and Belarus (2006).21 As clearly stated in the 2009 document of the European Commission,22 one of the main objectives pursued by the EU restrictive measures is ‘to develop and consolidate democracy and the rule of law and respect for human rights and fundamental freedoms’.23 In most of the cases in which this objective has been invoked, the situation in the target countries has not involved the commission of RtoP crimes. Yet, it seems obvious that if the EU considers itself entitled to resort to unilateral non-forcible measures in the case of ‘ordinary’ human rights violations, it would a fortiori claim the right to do so in the case of the four RtoP crimes, which could be in a way seen as human rights violations par excellence. Considered to be the most active in the area, the US and the EU are not alone in resorting to unilateral non-forcible measures. In the Cold War period, individual European states revealed a tendency to do so, as evidenced by the Dutch reaction to human rights violations in Suriname in 1982 (suspension of a bilateral treaty on development assistance).24 In the post-Cold War period, non-European states and organisations also started engaging in sanction practices. The African Union (AU) has imposed, or threatened to impose, targeted sanctions against political leaders of Togo (2005),25 Madagascar (2010)26 and Ivory Coast (2011).27 The Economic Community of West African States (ECOWAS) has proceeded likewise with respect to Togo (2005),28 Guinea (2009) and Niger (2009).29 Individual restrictive measures have been resorted to, for example, by Kenya against the President of Somalia (2008),30 though most African states, like their counterparts in Europe, seem to have a preference for acting via regional organisations. Unilateral non-forcible measures used in Africa are often justified with reference to violations of human rights in the target countries. The RtoP concept has not been explicitly invoked, yet unilateral measures have often been applied in situations arguably involving the commission of, or preparation for, RtoP crimes and there is therefore no reason to doubt that Africans also perceive such measures as a lawful and appropriate response to those crimes.

V er on i k a B í lk ová / 294

Outside Europe and Africa, sanctions in response to serious violations of human rights have been resorted to, for instance, by the Organisation of American States (OAS)31 and individual states such as Canada, Australia or New Zealand.32 While it is true that for the OAS, restoration of democracy is a more common rationale of restrictive measures than concerns for human rights, the latter element is not completely absent either. The international practice therefore shows that states and regional organisations reveal a growing tendency to resort to unilateral non-forcible measures in situations involving large-scale violations of human rights,33 the condition certainly met in the case of RtoP crimes. While those measures are mostly used when the state itself is responsible for violations, nothing lends to believe that the reaction would be different if the state were to manifestly fail to stop violations committed by non-state actors. The absence of relevant practice in this regard might be to a large extent explained by the fact that in such cases, an authorising UN Security Council resolution is more easily forthcoming, precluding any need to resort to unilateral actions.34

2

Unilateral Non-Forcible Measures and the RtoP Concept

The 2005 WSO Document contains no explicit reference to unilateral non-forcible measures. The diction of the relevant provisions35 could even prima facie give reason to think that some of these measures – more specifically those which derogate from international law standards – are excluded from the scope of the concept. After all, when introducing the RtoP Third Pillar, the document speaks about ‘the international community, acting through the United Nations … and in accordance with Chapters VI and VIII of the Charter’.36 Yet, the overview of the circumstances leading to the adoption of the 2005 WSO Document as well as the subsequent evolution show that relying on this first impression could be somewhat inconsiderate. In fact, rather than a deliberate exclusion from the scope of the RtoP concept, the silence on unilateral non-forcible measures seems to reflect an almost generally shared preference for collective, UN-led measures, as well as the fear of some of the states that any reference to unilateral measures would revive the old debates on the unilateral use of force in humanitarian intervention. The first document, which promoted – and indeed coined – the RtoP concept, the 2001 report ‘Responsibility to Protect’, authored by the Canadian-led International Commission on Intervention and State Sovereignty (ICISS),37 took a broad approach to what at that time was labelled as the responsibility to react. It made it clear that ‘when preventive measures fail ... and ... a state is unable or unwilling to redress the situation, then interventionary measures by other members of the broader community of states may be required. These coercive measures may include political, economic or judicial measures’.38 Nothing in the report limits the circle of actors entitled to use such measures to the UN or those acting with its authorisa-

T h e R es p on s i b i li t y to Pro t ect / 295

tion. Rather, the willingness of the Commission to concede that even in cases of the use of military force, the authority may lie with actors other than the UN Security Council39 corroborates the idea that this is yet more legitimate in cases of measures short of force. The two subsequent reports, namely the 2004 ‘A More Secure World’, drafted by the High-Level Panel on Threats, Challenges and Change,40 and the 2005 ‘In Larger Freedom’, presented by the UN Secretary-General Kofi Annan,41 do not analyse the RtoP concept at any length. Afraid of rendering RtoP unacceptable to most states by making any references – approving or disproving – to humanitarian intervention, the authors laid the primary focus upon measures adopted in the UN framework, leaving the other questions simply open to future debates. The same, in a way, happened during the 2005 World Summit: the main cleavage among states was again related to humanitarian intervention. It is with this issue in mind that paragraphs 138-140 of the WSO Document were drafted and careful language, neither rejecting nor condoning unilateral (forcible or non-forcible) measures, was chosen. Later debates about the RtoP concept in the UN Security Council (20062010)42 and the UN General Assembly (2009)43 confirm that unilateral non-forcible measures, unlike unilateral use of force, have never become a real issue. Thus, the absence of any reference to these measures in the WSO Document does not indicate that they were found incompatible with the RtoP concept. Rather, it indicates that the relationship between them and RtoP remained undiscussed. Yet, several arguments could be put forward in support of the claim that unilateral non-forcible measures not only do not collide with RtoP but could even fit relatively well under its general umbrella. First of all, by seeking to prevent or stop serious and large-scale violations of human rights, those measures pursue the overall goals set for the RtoP concept. Moreover, they could constitute a persuasive answer to those uncertain about what happens if not only the territorial state, but also the UN Security Council, manifestly fails to protect the population from RtoP crimes. Substituting for the UN actions, when those are not forthcoming, is the first function that unilateral non-forcible measures could assume in the RtoP framework. In addition, they could also serve as temporary measures resorted to when the UN system does not fail but needs some time to get activated. Finally, they could also, arguably, complement the UN system when it, though in place, does not go far enough or does not function properly.

3

Unilateral Non-Forcible Measures and International Law

The RtoP concept does not constitute an independent legal framework. Indeed, the nature and legal basis of its pillars remain disputed, both by states44 and legal experts.45 The compatibility with RtoP does not therefore guarantee the lawfulness of unilateral non-forcible measures. This lawfulness can only be assessed against

V er on i k a B í lk ová / 296

the rules and standards of international law. To get a truly full picture, one would need to look not only into generally applicable norms but also into internal rules of relevant international organisations. Yet, since such an analysis would be highly context-specific, there is no space for it here46 and, thus, issues of competence and procedures are left beyond the scope of this text. Moreover, the text focuses primarily on the regulation under general, customary international law, rather than discussing specific institutes existing in the law of treaties.47 When assessing the lawfulness of unilateral non-forcible measures, it is important from the outset to draw a clear line between measures that derogate from international law and those that do not. The lawfulness of the latter does not in itself pose a serious problem, as these measures can easily be qualified as lawful coercive acts or as acts of retorsion.48 The situation is more complicated in case of measures that are prima facie incompatible with international law. Three different theories have been advanced to account for this incompatibility and to help to overcome it. These theories are not necessarily mutually exclusive, but may be combined to underpin each other. It is important to stress that the choice of the theory(ies) is crucial, not only for the assessment of the lawfulness itself. It also permits us to determine whether the resort to unilateral non-forcible measures is a right or a duty of relevant subjects, and what its conditions are. From that perspective, it has relevance for the measures not derogating from international law as well. The first theory invokes primary norms of international law,49 especially Article 1 of the 1948 Genocide Convention: ‘The Contracting Parties confirm that genocide  … is a crime under international law which they undertake to prevent and to punish’,50 and Common Article 1 of the four 1949 Geneva Conventions: ‘The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances’.51 Both these rules are considered as customary, binding upon all states. Only rarely invoked in earlier periods, they have come into much more frequent use since 1990, being cited in relation to such events as the genocide in Rwanda, the civil war in the former Yugoslavia and the humanitarian crisis in Darfur.52 There is now a relative consensus that the provisions set not merely a right, but a duty to prevent and/or stop certain crimes. It is also largely agreed upon that this duty falls both upon the territorial state and upon other countries, which, if the former fails in its respect for international law, ‘may, and should, endeavour to bring it back to an attitude of respect’.53 In so doing, these countries have to ‘employ all means reasonably available to them’.54 The extent of this duty differs in function of various countries’ capacity ‘to influence effectively the action of persons likely to commit, or already committing’55 the relevant crime. There is no doubt that such means may encompass unilateral non-forcible measures that do not derogate from international law. It is far less certain whether measures that do so could also be lawfully resorted to in this framework. In other words, it is uncertain whether the two rules quoted above could somehow trump other primary norms of international law (ie norms prima facie violated by unilateral nonforcible measures). There are two different ways in which an argument in support of

T h e R es p on s i b i li t y to Pro t ect / 297

an affirmative answer could be made. The first, direct way would consist of appealing to the (alleged) peremptory nature of the two rules and claiming their normative superiority over ordinary norms of international law. The problem here lies in that both the status of the two rules, and the potential implications of this status for other norms, which moreover do not necessarily collide with those rules, are disputable. The second, indirect way would be that of claiming that the two rules do not in themselves justify derogation from international law but that they impose upon states the obligation to resort to countermeasures, which in their turn preclude any wrongfulness. Notwithstanding the fact that official accounts for unilateral nonforcible measures have only rarely been framed in these terms, it is evident that the main thrust of the argument here pertains to countermeasures and will therefore be discussed later on. The first theory gives rise to other problems as well. Based on the rules quoted above, it clearly applies to only two out of the four RtoP crimes, namely the crime of genocide and war crimes. No similar regulation exists vis-à-vis crimes against humanity and ethnic cleansing. Even the International Court of Justice (ICJ), when interpreting Article 1 of the Genocide Convention, sought to make it clear that it did not ‘purport to find whether, apart from the texts applicable to specific fields, there is a general obligation on States to prevent the commission by other persons or entities of acts contrary to certain norms of general international law’.56 The first theory is therefore a partial one, not claiming any general right or obligation to resort to unilateral non-forcible measures in RtoP situations. Finally, it is not clear how the two primary norms impact upon the legal position of international organisations. Not bound by the two conventions, neither, arguably, by the corresponding customary rules, organisations seem to be free of any obligations stemming from them. They would thus operate in a somewhat different legal framework than states, though the latter might still work through them to carry their duties out. All in all, it is possible to say that the first theory does not truly deal with the lawfulness of unilateral non-forcible measures. Rather, it seeks to turn the resort to those measures that are lawful and that could have a positive impact on the situation into an obligation in cases of genocide and war crimes. Whether a similar obligation would apply to other RtoP crimes and whether it could anyhow account for derogations from international law remains contentious. The second theory focuses on secondary norms of international law, particularly those relating to the invocation of the responsibility by states and organisations other than injured ones, and to the responsibility for serious breaches of obligations arising under peremptory norms of general international law (ius cogens). Rules applying in such instances are codified in Articles 48 and 41, respectively, of the 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts (ASR).57 Article 48 stipulates that in case of violations of erga omnes or erga omnes partes obligations,58 states – acting alone or via international organisations – are entitled to invoke the responsibility of another state, even if they are not directly injured. While a manifest failure by a state to protect its population from RtoP

V er on i k a B í lk ová / 298

crimes and, a fortiori, the commission of such crimes by this very state would arguably count as violations of erga omnes obligation, Article 48 could give a legal basis to only a narrow set of unilateral non-forcible measures. It is so because its scope is limited to merely claiming from the responsible state the cessation of the wrongful act and the performance of the obligation of reparation. As such, the provision could, at the most, apply to political and diplomatic appeals containing such claims, its only legal effect being to preclude the territorial state from considering such appeals as unlawful interference into its internal affairs. Article 41 is prima facie more promising. Focusing on particular consequences of a serious breach of ius cogens obligations, it calls upon States to ‘cooperate to bring to an end … any serious breach’.59 The International Law Commission (ILC) commentary on the provision makes it clear that the obligation to cooperate ‘applies to States whether or not they are individually affected by the serious breach’60 and the cooperation could be both non-institutionalised and ‘organized in the framework of a competent international organisation’.61 The choice of appropriate means depends on the concrete circumstances of a case. It is nonetheless obvious that it may, and often will, include unilateral non-forcible measures. At first sight, Article 41 seems to be an ideal legal basis for the adoption of those measures in the RtoP context, setting not merely a right but a duty to resort to them. Yet, this view should not be accepted hastily, since it is confronted with several important questions. The first question asks whether Article 41 truly covers all RtoP situations. There is no doubt that the commission of RtoP crimes by the territorial state would amount to a breach of ius cogens and that such a breach, at least in most cases, would be a serious one.62 Problems arise, as far as a failure by the state to protect its population from RtoP crimes, committed by other actors, is concerned. Although that failure needs to be a manifest one, indicating a serious nature of the breach, it still relates solely to the obligation of due diligence. Whether such an obligation is itself of a peremptory nature is disputable. Another question inquires into the type of means which may be resorted to by states cooperating under Article 41. The provision explicitly refers to ‘lawful means’,63 which seems to exclude any measures derogating from international law. Whereas with a dose of good will, unlawful measures whose wrongfulness is precluded (typically by countermeasures) could also qualify as ‘lawful means’, it is obvious that in such case, Article 41 would not serve as the principal legal basis but would merely turn the right to resort to countermeasures into an obligation. The last question pertains to the status of the rule contained in Article 41. Admitting that ‘paragraph 1 ... may reflect the progressive development of international law’,64 the ILC itself casts doubts as to whether international law prescribes a positive duty of cooperation, or whether such a duty belongs merely to the area of legis ferendae. Be that as it may, Article 41 is, again, primarily aimed at making certain (alleged) rights of states into obligations, not at accounting for lawfulness of measures derogating from international law. The third theory turns to countermeasures. These are ‘measures that would otherwise be contrary to the international obligations of an injured State vis-à-vis the

T h e R es p on s i b i li t y to Pro t ect / 299

responsible State, if they were not taken by the former in response to an internationally wrongful act by the latter in order to procure cessation and reparation’.65 Countermeasures do not terminate international obligations but permit their temporary non-performance. Combining the quality of an enforcement tool and a circumstance precluding wrongfulness, they belong among institutes of traditional, decentralised international law. In the classical scheme, they are resorted to by subjects directly injured by the original violation. Yet, Article 54 of the 2001 Draft Articles stipulates that non-injured states also may be entitled to ‘take … measures ... to ensure cessation of the breach and reparation’.66 The examples given by the ILC in support of this claim mostly involve serious violations of human rights and, repeatedly, RtoP crimes.67 Indeed, it is sure that states reacting to a manifest failure by another state to protect its population from RtoP crimes would count as ‘States other than an injured State’ in the sense given to this term by Articles 48 and 54. Thus it would seem that the institute of countermeasures could finally dissipate doubts on the lawfulness of the use of unilateral non-forcible measures in the RtoP context, precluding wrongfulness of those which derogate from international law (provided that all conditions of lawful countermeasures are satisfied).68 Yet, for several reasons, this is not truly so. While they have already been discussed for several decades,69 countermeasures by non-injured entities remain a contentious issue. The ILC itself claims that ‘practice on the subject is limited and rather embryonic’,70 and ‘there appears to be no clearly recognized entitlement ... to take countermeasures in collective interest’.71 This is reflected in a cautious wording of Article 54, which not only uses the ‘without prejudice’ diction, but also limits its scope to ‘lawful measures’. The ILC prefers not to specify whether ‘lawful measures’ in this context embrace countermeasures, though the location of Article 54 in the text and the cases cited in its commentary show that they are what the ILC effectively had in mind when drafting the provision.72 In any case, Article 54 remains ambiguous, neither rejecting nor confirming the legal status of countermeasures undertaken by non-injured states. Consequently, countermeasures cannot offer a reliable legal basis for unilateral non-forcible measures adopted in the RtoP context. Or at least, they could not do so in the early 2000s, when the Draft Articles were finalised. The question arises as to whether the situation has changed since then. As evidenced in the first section of this chapter, the past decade has witnessed a growing tendency by states and international organisations to resort to unilateral non-forcible measures. Moreover, the birth of the RtoP concept, with its emphasis upon the subsidiary responsibility of the international community to protect populations from serious crimes seems, despite the primary reliance upon the UN mechanism, to indicate a progressive move towards a more community-oriented approach. The positive role that unilateral non-forcible measures could play in the realisation of RtoP should encourage those in favour of the concept to pay attention to these developments and, if not directly promote them, then at least be ready to use their results in the assessment of, and to potentially advocate for, the lawfulness of pro-RtoP sanctions. The poten-

V er on i k a B í lk ová / 300

tial of combining the three theories should also be explored, if the use of unilateral non-forcible measures is ever to become a true ‘responsibility’ (that is, a duty).

4

Concluding Remarks

Unilateral non-forcible measures used by individual states, groups of states or international organisations to prevent or stop RtoP crimes were left out of the 2005 WSO Document. This omission, reflecting the general preference for collective measures adopted in the UN framework and the fear of reinvigorating the debate on humanitarian intervention, does not necessarily entail the exclusion of unilateral non-forcible measures from the RtoP framework. Indeed, the measures are fully compatible with this framework and there are reasons to believe that they could play an important role in the realisation of RtoP. Yet, for this to materialise, it is necessary to clarify the legal basis of unilateral non-forcible measures and to ascertain both whether they may derogate from international law and whether the resort to them would constitute a right or a duty. Three theories have been advanced in this regard: one relying on primary norms of international law, another on Articles 41 and 48 of the 2001 Draft Articles, and the last on countermeasures. While all three theories have some strong points, none of them, as traditionally construed, is unproblematic. RtoP scholars should therefore revisit, and potentially revise, these theories in the light of new developments and find out whether, individually or in combination, they could nowadays account for unilateral non-forcible measures adopted in the RtoP context.

Notes 1 For more details on the concept, see A J Bellamy, Responsibility to Protect. The Global Effort to End Mass Atrocities (Polity Press, Cambridge 2009); G Evans, The Responsibility to Protect, Ending Mass Atrocity Crimes Once and For All (Brookings Institution Press, Washington 2008); P Niemela, The Politics of Responsibility to Protect: Problems and Prospects, Erik Castrén Research Reports 25 (Helsinki 2008). 2 UNGA, ‘2005 World Summit Outcome’ (2005) UN Doc A/60/L.1 (WSO Document) para 138-140. 3 Report of the Secretary-General, ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677, 22. 4 See K Manusama, The United Nations Security Council in the Post-Cold War Era. Applying the Principle of Legality (Martinus Nijhoff Publishers, Leiden 2006) 171; N Jansen Calamita, ‘Sanctions, Countermeasures, and the Iranian Nuclear Issue’ (2009) 42 Vanderbilt J Transnatl L 1397. 5 See M Lister, ‘The Legitimating Role of Consent in International Law Community’ (2011) 12 Chi J Intl L (forthcoming). 6 See Art 20 UNGA Draft Articles on Responsibility of States for Internationally Wrongful Acts, Res 56/83 (28 January 2002) UN Doc A/RES/56/83 (ASR).

T h e R es p on s i b i li t y to Pro t ect / 301

7 See V Gowlland-Debbas (ed), National Implementation of United Nations Sanctions. A Comparative Study (Graduate Institute of International and Development Studies, Geneva 2004). 8 See also D W Bowett, ‘Economic Coercion and Reprisals by States’ (1972-1973) 13 VaJIL L 1-12. 9 See the debate about the targeted financial sanctions against persons and entities suspected of the involvement in or support of terrorism in the aftermath of the EU courts decisions in the Kadi Case: Case T-315/01 Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities [21 September 2005] ECR II 3649; Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union [3 September 2008] 3 CMLR 41. 10 S J Fredman, ‘U. S. Trade Sanctions against Uganda: Legality Under International Law’ (1979) 11 Law & Pol Int Bus 1149-1191. 11 For a more comprehensive survey of US sanctions see US Department of the Treasury, Sanctions Programs www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx accessed 13 January 2011. 12 See J P Griffin and M R Calabrese, ‘US Sanctions Against South Africa’ (1987) 6 IFLR 15-17. 13 See M F Martin, ‘US Sanctions Against Burma’ CRS Report for Congress (16 July 2010). 14 See Title 31 Part 538 of the US Code of Federal Regulations. 15 Ibid. 16 J L Redleaf, ‘Division of Foreign Policy Authority between the European Community and the Member States: A Survey of Economic Sanctions against South Africa’ (1992) 12 BC Third World LJ 97-119. 17 S Bohr, ‘Sanctions by the United Nations Security Council and the European Community’ (1993) 4 EJIL 256-268 (the article focuses on the EC sanctions imposed on Iraq, Libya and Yugoslavia). 18 Council Decision 91/602/EEC on the denouncement of the Cooperation Agreement between the EEC and the SFR of Yugoslavia [1991] OJ L325, 23. 19 Common Position 96/635/CFSP of imposition of arms embargo, and diplomatic sanctions [1996] OJ L287, 0001-0002. 20 P A Pillitu, ‘European “Sanctions” against Zimbabwe’s Head of State and Foreign Minister: A Blow to Personal Immunities of Senior State Officials?’ (2003) 1 JICJ 453-461. 21 Council Regulation (EC) 1933/2006 of 21 December 2006 on temporary withdrawal of the access to the generalised tariff preferences from the Republic of Belarus [2006] OJ L405/35. 22 European Commission, ‘Sanctions’ 15 September 2009 accessed 13 January 2011. 23 Ibid, 2. The text reproduces the objectives of the EU Foreign and Security Policy, as originally set in Article 11 (now 21) of the Treaty on European Union (consolidated version 1997). 24 R C R Siekmann, ‘Netherlands State practice for the parliamentary year 1982-1983’ (1984) 15 NYIL 68-69. 25 E Blunt, ‘African Union lifts Togo embargo’ BBC (27 May 2005) accessed 13 April 2011. 26 --, ‘African Union Sanctions Madagascar’s Leaders’ Voice of America (17 March 2010) accessed 13 April 2011.

V er on i k a B í lk ová / 302

27 E Ombok and F Wild, ‘African Union Plans Ivory Coast Sanctions, Isolation’ Businessweek (21 January 2011) accessed 13 April 2011. 28 —, ‘ECOWAS Sanctions Togo in Response to Country’s Political Situation’ Voice of America (19 February 2005) accessed 13 April 2011. 29 G Oji, ‘West Africa: ECOWAS Imposes Sanctions on Guinea, Niger’ AllAfrica (18 October 2009) < http://uu7g.info/stories/200910180009.html> accessed 13 April 2011. 30 — ‘Kenya to impose sanctions on Somali president’ USA Today (16 December 2008). 31 TELAM, The OAS to debate next Saturday possible sanctions to Honduras, 2 July 2009. 32 See, for instance, Canada Border Services Agency, Canadian Economic Sanctions, Memorandum D19-11-1, April 30, 2010; or the Australian Autonomous Sanctions Bill 2010. 33 The phrase ‘large-scale violations of human rights’ needs to be understood in its political, not strictly legal sense here, encompassing any massive attacks upon human lives, physical integrity or liberty independently of the context and the identity of the perpetrator. 34 See the UN sanction regime against Bosnia and Herzegovina. The fact that in the context of the Yugoslavian war, the EU/EC twice overtook the UN (in 1991 and in 1998) in imposing sanctions might indicate that it would be ready to do the same against Bosnia and Herzegovina even in the absence of an explicit UN authorisation. 35 WSO Document (n 2) paras 138-140. 36 Ibid, para 139. 37 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) accessed 13 April 2011 (ICISS Report). 38 Ibid, 29, para 4.1. 39 Ibid, 53-55, paras 6.28-6.40. 40 Report of the High-Level Panel on Threats, Challenges and Change ‘A More Secure World: Our Shared Responsibility’ (2004) UN Doc A /59/565 (High-Level Panel Report). 41 Report of the Secretary-General ‘In Larger Freedom: Towards Development, Security and Human Rights for All’ (2005) UN Doc. A/59/2005 (In Larger Freedom Report). 42 See the UN Security Debates on the Protection of Civilians in Armed Conflicts, transcripts available at accessed 20 November 2009. 43 See the website of the International Coalition for the Responsibility to Protect (ICRtP) for the ‘UN General Assembly Plenary Debate on the Responsibility to Protect’ transcripts accessed 20 November 2009. 44 Ibid. 45 C Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ (2007) 101 AJIL 99-120. 46 Indeed, many sources limit themselves to this analysis, presuming, albeit mistakenly, that lawfulness under internal rules of an organisation would ipso iure amount to lawfulness under international law in general. See, for instance, European Commission, (n 22) Section 6. Which legal bases are used for EU sanctions? 47 Arts 60 (on the termination or suspension of the operation of a treaty as a consequence of its breach) and 62 (on the fundamental change of circumstances) of the Vienna Convention on the Law of Treaties are particularly pertinent in this context: Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980)

T h e R es p on s i b i li t y to Pro t ect / 303

1155 UNTS 331 (VCLT). See also L A Sicilianos, ‘The Relationship Between Reprisals and Denunciation or Suspension of a Treaty’ (1993) 4 EJIL 341-359. 48 The UN International Law Commission (ILC) defines retorsion as ‘“unfriendly” conduct which is not inconsistent with any international obligation of the State engaging in it even though it may be a response to an internationally wrongful act’. ILC, ‘Report of the International Law Commission on its Work of its 53rd session’ (23 April-1 June and 2 July-10 August 2001) UN Doc. A/56/10, 128. 49 See, for instance, M Kalkman, ‘Responsibility to Protect: A Bow Without an Arrow’ (2009) 5 CSLR 87-90. 50 Art 1 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention). 51 Art 1 of ‘the Geneva Conventions’: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 (First Geneva Convention); Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 (Second Geneva Convention); Convention (III) relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135 (Third Geneva Convention); Convention (IV) relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (Fourth Geneva Convention). 52 See E A Heinze, ‘The rhetoric of genocide in U.S. foreign policy: Rwanda and Darfur compared’ (2007) 122 PSQ 359-384. 53 J Pictet (ed), Commentary on the Geneva Conventions of 12 August 1949, Vol. I (International Committee of the Red Cross, Geneva 1994) 26. See also L Boisson de Chazournes, L Condorelli, ‘Common Article 1 of the Geneva Conventions revisited: Protecting collective interests’ (2000) 837 IRRC 67-87. 54 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 2 (Genocide case) par. 430. 55 Ibid. 56 Genocide Case (n 54) para. 429. 57 See Arts 41 and 48 ASR in ILC Report A/56/10 (n 48) respectively 113-116 and 126-128. Similar provisions are contained in the 2009 Draft Articles on Responsibility of International Organisations (DARIO), adopted by the ILC in the first reading in: ILC, ‘Report of the International Law Commission on the Work of its 61st Session (4 May-5 June and 6 July-7 August 2009) UN Doc. A/64/10, 126-128 (article 41) and 141-146 (article 48). Yet, those provisions would apply only to situations in which the original violation is imputable to an organisation. This leaves the question as to whether an organisation may react to violations by states (unlike whether organisations may react to violations by other organisations and states to violations by both states and organisations) unaddressed in the two ILC documents. 58 Erga omnes obligations are owed to the international community as a whole, erga omnes partes obligations are owed to a group of states and are established for the protection of a collective interest of the group. 59 Art 41(1) ASR (n 6). 60 ILC Report A/56/10 (n 48) 114. 61 Ibid.

V er on i k a B í lk ová / 304

62 The Draft Articles claim that a breach of an obligation is serious, ‘if it involves a gross or systematic failure by the responsible State to fulfil the obligation’ see article 40(2) ASR (n 6). The ILC in its commentary specifies that ‘“gross” … denotes violations of a flagrant nature, amounting to a direct and outright assault on the values protected by the rule’, while ‘to be regarded as systematic, a violation would have to be carried out in an organized and deliberate way’; ibid, 113. The commission by the territorial state of RtoP crimes, with some caveats related to ethnic cleansing and isolated war crimes, would certainly satisfy these conditions. 63 Art 41(1) ASR (n 6). 64 ILC Report A/56/10 (n 48) 113. 65 Ibid 128. 66 A similar provision (article 56) is contained in the 2009 DARIO (n 57). Yet, article 54 does not apply to cases where ‘action is taken by an international organisation’ (ibid 137). Since article 56 of 2009 DARIO (n 57) would not cover those cases either, a gap arises again in the regulation. 67 ILC Report A/56/10 (n 48) 138-139. 68 Countermeasures may be resorted to only in response to a previous unlawful act by another state and need to aim solely at the cessation of such an act and the provision of reparation. They are last resort measures and have to be proportional in nature. See articles 49-53 of the 2001 Draft Articles on State Responsibility. 69 See M Akehurst, ‘Reprisals by Third States’ (1970) 44 BYIL 1-18; C Leben, ‘Les contremesures étatiques et les réactions à l’illicite dans la société internationale’ (1983) 28 AFDI 9-77; D Alland, ‘Countermeasures of General Interest’ (2002) 13 EJIL 1221-1239. 70 ILC Report A/56/10 (n 48) 137. 71 Ibid 139. 72 See ibid 137; ILC Report A/64/10 (n 57) 158.

20

The Responsibility to Protect Through the International Court of Justice Gentian Zyberi ‘Strength without justice is tyrannical, and justice without strength is mockery.’ — Blaise Pascal

1 Introduction The beginning of the third millennium witnessed the coining, adoption and rise of the humanitarian doctrine of ‘Responsibility to Protect’ (RtoP), composed of three elements, namely the duty to prevent, the duty to react and the duty to rebuild.1 The scope and character of this overarching principle remain contentious and are vigorously debated in key international political fora, such as the General Assembly (GA) of the United Nations (UN). Operationalising the responsibility to protect has been rightly described by the UN Secretary-General as one of the cardinal challenges of our time.2 In spite of considerable literature on different aspects of the responsibility to protect and related issues, little if any attention has been paid to the important role that key international judicial institutions such as the International Court of Justice (ICJ) can play in interpreting and developing the emerging overarching principle of responsibility to protect. This chapter provides a brief analysis of the possibilities and the ICJ’s legal findings relevant to developing, interpreting and enforcing relevant obligations falling under the responsibility to protect. In addition to acknowledging and elucidating the concept of RtoP, the 2005 World Summit Outcome Document (WSO Document) entrusted the UNGA with continuing consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law.3 As a result, this important issue, intrinsically related to global human security and human rights protection, became part of the GA’s agenda. The Security Council (SC) has also reaffirmed the provisions of paragraphs 138 and 139 of the WSO Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.4 The UN Charter provides that the ICJ is one of the main organs of the organisation and its principal judicial organ.

Ge n ti an Z yb er i / 306

Entrusted with settling inter-State disputes and advising the main UN organs and specialised agencies on legal matters, the ICJ can assist in providing more clarity on this issue through interpreting and developing the rationale behind the concept, and the incumbent legal duties upon States, while offering the necessary legal venue for enforcing obligations arising under the RtoP. Emphasising the achieved importance of the promotion and protection of human rights in the international arena and embracing the concept of sovereignty as responsibility, in the Legality of Use of Force cases, Judge Weeramantry stated: Human rights violations on this scale are such as to throw upon the world community a grave responsibility to intervene for their prevention and it is well-established legal doctrine that such gross denials of human rights anywhere are everyone’s concern everywhere. The concept of sovereignty is no protection against action by the world community to prevent such violations if they be of the scale and nature alleged.5

The prohibition and the punishment of crimes falling under the responsibility to protect represent commonly shared global values, which have become crucial to the UN’s raison d’être. This chapter will first examine the relevance of the ICJ’s jurisdiction with regard to international responsibility for violations of obligations arising under the RtoP. In turn, the relevant findings of the ICJ with regard to the different components of the RtoP are discussed in some detail. The chapter concludes with a number of final remarks.

2

International Responsibility under RtoP and the ICJ’s Jurisdiction

An important aspect of State obligations arising under RtoP is that of international legal responsibility attached to their breaches through acts or omissions. Both the contentious and the advisory function of the ICJ are relevant in this regard. An advisory opinion by the ICJ could assist the GA in its discussion regarding the scope and character of the responsibility to protect. The Security Council could also profit from the Court’s guidance on relevant legal matters. Eventually, inter-State disputes concerning RtoP obligations can be resolved through the Court’s contentious jurisdiction. Establishing the contentious jurisdiction of the Court is not a simple matter, however. Only some of the human rights treaties have a compromissory clause bestowing jurisdiction on the Court,6 and a number of States have entered reservations towards these clauses upon the ratification of the treaties. Regrettably, the compulsory jurisdiction of the Court under Article 36(2) of its Statute is accepted by only 66 of the 193 Member States of the UN.7 These jurisdictional bar-

Rt o P th r ou g h th e I nternatio na l Co urt o f Just ic e / 307

riers have already prevented the Court from entertaining cases where the violation of obligations arising under the responsibility to protect was at issue.8 Under Article 93(1) of the UN Charter, all UN Member States are ipso facto members of the Statute of the ICJ. Thus, in principle, any of them can eventually seize the Court of a dispute involving violations of international law obligations arising under the responsibility to protect. Moreover, under Article 48(1)(b) of the Articles on State Responsibility for Internationally Wrongful Acts adopted by the International Law Commission (ILC) in 2001, any State, other than an injured State, is entitled to invoke the responsibility of another State when the obligation breached is owed to the international community as a whole.9 Arguably, invoking that responsibility could involve bringing a case before the ICJ when the obligation breached concerns the prohibition of genocide. Besides, that could also include gross and systematic violations of principles and rules protecting basic rights of the human person falling under the responsibility to protect, namely war crimes, crimes against humanity and ethnic cleansing. Obviously, it is up to the States concerned to make use of the legal procedures available before the ICJ. It has been noted that the notion of responsibility has been drastically modified as a result of a tripartite evolution, which reflects that of international law itself, to the extent that it is no longer limited to States and has become an attribution of the international legal personality of other subjects of international law; it has lost its conceptual unity as a result of the elimination of damage as a condition for the engagement of responsibility for breach; and the common point of departure which it shared with liability for acts not involving a breach of international law has disappeared.10 There is also a diversification of entities that might be held responsible, since failure to comply with obligations arising under RtoP can give rise to State responsibility, responsibility of international organisations and individual criminal responsibility. Although not dealt with here, several international criminal courts and tribunals have been established in the last two decades to prosecute individuals responsible for certain internationally-recognised crimes falling under RtoP.11 Taken together, these courts provide for the enforcement arm of international law obligations concerned with the protection of populations from genocide, war crimes, crimes against humanity and ethnic cleansing.

3

RtoP through the Lens of the ICJ

As stated above, the role of the ICJ in ensuring State compliance with RtoP obligations is quite significant. Two interrelated, though separate, aspects of that role can be easily discerned, namely the preventative aspect and that of settling inter-State disputes, which ultimately includes awarding reparations to the injured party when a violation is found to have taken place. The Court’s preventive function is mainly discharged through the indication of provisional measures, which have the potential to stop or avert harm to populations at risk of mass atrocities. Having been seized

Ge n ti an Z yb er i / 308

with requests for provisional measures in a situation of armed conflict on several occasions, the ICJ has indicated such measures in a number of cases.12 Besides this procedural mechanism, the very existence of the Court as a forum for the settlement of international disputes can potentially dissuade a State from engaging in conduct prohibited under international law. In its case law the Court has dealt with several legal issues which are relevant to different aspects of international legal responsibility for the violation of obligations arising under the responsibility to protect. Initially, the Court’s findings relevant to the doctrinal legal foundations of the responsibility to protect are dealt with. Subsequently, the focus shifts to the duty of States to prevent genocide and their duty to punish perpetrators and to cooperate with international tribunals established to prosecute persons for having committed the crime of genocide.

3.1 The Legal Foundations of RtoP

From its launch as a concept, it has been pointed out that RtoP has a strong foundation in specific legal obligations under human rights and human protection declarations, covenants and treaties, international humanitarian law and national law.13 Indeed, there are a considerable number of international human rights and humanitarian law treaties which impose upon States legal obligations concerning the protection of populations from genocide, war crimes, crimes against humanity and ethnic cleansing. The ICJ has developed two basic legal principles, namely those of elementary considerations of humanity and erga omnes obligations, which highlight respectively the humanitarian value and the scope of obligations arising under the responsibility to protect. The principle of ‘elementary considerations of humanity’ encapsulates such fundamental values as human dignity, respect for human life, and basic principles of justice. Initially, this principle was used to underline the obligation of States not to knowingly allow their territory to be used for causing harm to others.14 In practical terms, the principle required States to take into account general concerns aimed at humanising inter-State conduct and eventually promoting friendly relations among them. The Court gave more substance to the principle of elementary considerations of humanity by referring to rules and principles of international humanitarian law. Thus, in the Legality of the Threat or Use of Nuclear Weapons case, the Court stated that ‘a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and elementary considerations of humanity’ that they are ‘to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law’.15 Many of these rules have to do with the protection of civilians during an armed conflict and the investigation and prosecution of persons for having committed war crimes; commonly known as the system of the grave breaches of the 1949 Geneva Conventions. The Court has considered that ‘fundamental general principles of humanitarian law’ are an expression of elementary considerations of humanity.16 Notably, the

Rt o P th r ou g h th e I nternatio na l Co urt o f Just ic e / 309

rules which are part of Article 3 common to the 1949 Geneva Conventions have been considered by the Court as a minimum yardstick to be applied in both international and non-international armed conflicts, since they reflect elementary considerations of humanity.17 By affirming that the rules enshrined in common Article 3 constitute ‘a minimum yardstick’ to be respected in both non-international and international armed conflict, the Court implicitly accentuates the individual rights of protected persons against horrendous acts of violence such as wilful killing, torture or inhuman treatment, or serious injury to body and to health.18 These findings of the Court serve to emphasise the obligation on the part of States to protect their population from war crimes. The concept of obligations erga omnes, introduced by the Court in the famous dictum in the Barcelona Traction case, is also quite relevant to the responsibility to protect.19 It can be said that the obligation of a State to protect its population from the crimes of genocide, war crimes, crimes against humanity and ethnic cleansing is owed to the international community as a whole. Consequently, individual State compliance with such an obligation is the concern of all States. The relevant international legal obligations include the prohibition of genocide, and a number of principles and rules concerning the protection of the basic rights of the human person. As the Court has clarified, some of the corresponding rights of protection have entered into the body of general international law; others are conferred by international instruments of a universal or quasi-universal character.20 Also taking into account their humanitarian and civilising purpose,21 the international human rights treaties adopted over the years can be seen as instruments having a universal or quasi-universal character imposing upon States obligations relevant to the responsibility to protect. Referring to the principle of elementary considerations of humanity in the advisory opinion on the Wall, the Court declared that, in its view, the rules included in Common Article 3 to the Geneva Conventions incorporate obligations which are essentially of an erga omnes character.22 Apparently, for the Court, not only customary rules of humanitarian law, but also those rules stemming from elementary considerations of humanity, impose upon States certain obligations of an erga omnes character. The concept of ‘obligations erga omnes’ provides a valid justification for the international monitoring of the situation and the human rights practices of States. Notable features of the responsibility to protect are those of universality and solidarity. Universality consists in that protection of basic human rights for persons under their jurisdiction is an obligation binding on all States without exception. Solidarity, on the other hand, is expressed in that every State is deemed to have a legal interest in ensuring the protection of populations from genocide, war crimes, crimes against humanity and ethnic cleansing. Obligations erga omnes in the field of human rights reflect common basic legal and moral values in the form of elementary considerations of humanity and elementary considerations of morality which have become an intrinsic part of international law. Obligations arising under the overarching principle of RtoP impose

Ge n ti an Z yb er i / 310

upon States the duty to cooperate to bring an end to, not to recognise and not to render assistance in the maintenance of a situation involving the commitment of large-scale and systematic violations of human rights by a State against its population. The purpose of the abovementioned obligations on the part of the international community of States as a whole is to prevent, or otherwise to stop the commitment of mass atrocity crimes by a State against its own population.

3.2 The Duty or Obligation to Prevent Genocide

A number of salient legal issues related directly to the duty to prevent as a component of RtoP have been dealt with by the Court. Evidently, among its three components, namely the duty to prevent, the duty to react, and the duty to rebuild, the duty to prevent is generally seen as being of foremost importance. Several cases brought before the Court have involved armed conflict situations where populations were either suffering from the negative effects of such a conflict or exposed to serious risk. In these cases, the applicant States requested the Court to indicate provisional measures; that is, to order measures aimed at putting an end to the hostilities or preventing their destructive effects on the civilian population. Rosenne has rightly noted that, as a time-honoured attribute of the judicial mission, courts should, within the limits of the judicial function, do what they can to prevent the escalation of the conflict between the litigating parties.23 While the Court did order provisional measures in four cases involving an armed conflict situation,24 compliance with these orders was problematic, notwithstanding the fact that such orders are legally binding. In two of these cases, the Court found the States concerned in violation of its provisional measures order.25 In the long term, provisional measures indicated by the Court can serve a useful preventive role and strengthen the protection of populations from mass atrocities. According to the Court, the prohibition of genocide under the 1948 Genocide Convention includes the following legal obligations: the duty to prevent as an obligation of conduct; the duty to prosecute or extradite, also known as the principle of aut dedere aut judicare – under Articles IV, V and VI; and the duty to cooperate with international courts and tribunals under Article VI insofar as it obliges States to cooperate with the ‘international penal tribunal’. Findings relating to the duty to prevent genocide and that of States to prosecute and cooperate with international courts and tribunals established to prosecute persons for having committed genocide are separately dealt with below. 3.2.1 Prevention of Genocide

While the Court did not address State obligations under the Genocide Convention, including the duty to prevent, as part of the responsibility to protect, the Counsel for Bosnia and Herzegovina in the Application of the Genocide Convention case referred explicitly to the concept of responsibility to protect. In presenting Bosnia’s view about the prevention of grave crimes, he noted the following:

Rt o P th r ou g h th e I nternatio na l Co urt o f Just ic e / 311

[P]revention means that every State must adopt ‘appropriate and necessary means’ (I would prefer to say: all appropriate and necessary means) to ‘protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’: I am using the language in which the World Summit of last September couched what it proclaimed as the ‘responsibility to protect’. A responsibility which – as the document I am citing indicates – is borne by each State but also by the ‘international community, through the United Nations’. I would point out that, by proclaiming the responsibility to protect, it was intended to provide a solemn response – albeit one which quite clearly was inherently inadequate, though nonetheless significant – to the concerns forcefully expressed by the Secretary-General in his millennium report, regarding the international community’s capacity to prevent future grave and massive violations of human rights of the kind committed in Rwanda and Srebrenica. In other words, the genocide against the non-Serbs of Bosnia and Herzegovina is one of the major tragic events which continue to drive the international community to find more suitable ways of preventing the repetition of extremely serious crimes of this kind.26

The Court dealt extensively with the specific scope of the duty to prevent genocide. With regard to the obligations incumbent upon States party to the 1948 Genocide Convention in preventing genocide, the ICJ held that: The obligation on each contracting State to prevent genocide is both normative and compelling. It is not merged in the duty to punish, nor can it be regarded as simply a component of that duty. It has its own scope, which extends beyond the particular case envisaged in Article VIII, namely reference to the competent organs of the United Nations, for them to take such action as they deem appropriate.27

According to the Court, the obligation on the part of States to prevent genocide has a continuous and distinct character, extending alongside that of the competent organs of the UN: Even if and when these organs have been called upon, this does not mean that the States parties to the Convention are relieved of the obligation to take such action as they can to prevent genocide from occurring, while respecting the United Nations Charter and any decisions that may have been taken by its competent organs.28

While remaining under an obligation to undertake action even and especially if the UN organs were unable or unwilling, the Court appears to view the nature and scale of what States should do as being mainly at their discretion. In clarifying the nature of the duty to prevent genocide, the Court stated that the obligation in question is one of conduct and not one of result; so, a State cannot

Ge n ti an Z yb er i / 312

be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide. Consequently, the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible.29 According to the Court, a State does not incur responsibility simply because the desired result is not achieved; responsibility is, however, incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide.30 The word ‘manifestly’, however, seems to establish a rather high threshold for incurring State responsibility, especially when considering the jus cogens character of the prohibition of genocide and the erga omnes obligations attached to it. The Court linked the evaluation of measures taken by a State with the notion of ‘due diligence’, which called for an assessment in concreto, and was of critical importance.31 In laying out the ‘due diligence’ test for assessing a State’s measures to comply with the duty to prevent genocide, the Court noted that the first aspect, varying greatly from one State to another, is the capacity to influence effectively the action of persons likely to commit, or already committing, genocide. That capacity depends among others on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. In addition to these largely practical considerations, the Court stated that a State’s efforts also had to be assessed on the basis of legal criteria. Thus, in the Court’s view, a State’s capacity to influence may vary depending on its particular legal position vis-à-vis the situations and persons facing the danger or the reality of genocide and the limits permitted by international law.32 The Court concluded that a State could be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. 3.2.2 The Duty to Punish and Cooperate with International Courts and Tribunals

The Court also addressed in considerable detail the duty to punish or aut dedere aut judicare – under Articles IV, V and VI and the duty to cooperate with international courts and tribunals under Article VI of the Genocide Convention.33 Since the genocide was not carried out in its territory, the Court concluded that Serbia could not be charged with not having tried before its own courts those accused of having participated in the Srebrenica genocide, either as principal perpetrators or as accomplices, or of having committed one of the other acts mentioned in Article III of the Convention in connection with the Srebrenica genocide.34 According to the Court, Article VI of the Genocide Convention only obliges the Contracting Parties to institute and exercise territorial criminal jurisdiction; while it certainly does not prohibit States, with respect to genocide, from conferring jurisdiction on their criminal courts based on criteria other than where the crime was committed which are compatible with international law, in particular the nationality of the accused, it does not oblige them to do so.35 Obviously, through this finding the Court emphasised territorial jurisdiction over other forms of jurisdiction, while acknowledging

Rt o P th r ou g h th e I nternatio na l Co urt o f Just ic e / 313

other possible grounds to establish and exercise jurisdiction over the crime of genocide, as chosen by different States. Turning to the issue of cooperation with international criminal tribunals, the Court held that Article VI obliges the Contracting Parties ‘which shall have accepted its jurisdiction’ to co-operate with it, which implies that they will arrest persons accused of genocide who are in their territory – even if the crime of which they are accused was committed outside it – and, failing prosecution of them in the parties’ own courts, that they will hand them over for trial by the competent international tribunal.36 The determination of whether a State has fulfilled its obligations in this respect would then hinge on a two-pronged test, namely whether the court in question constituted an ‘international penal tribunal’ within the meaning of Article VI and whether the State could be regarded as having ‘accepted the jurisdiction’ of the tribunal within the meaning of that provision.37 The Court found that the notion of an ‘international penal tribunal’ within the meaning of Article VI must at least cover all international criminal courts created after the adoption of the Genocide Convention of potentially universal scope, and competent to try the perpetrators of genocide or any of the other acts enumerated in Article III.38 In the Court’s view, the nature of the legal instrument by which such a court is established is without importance in this respect. In this case, cooperation with the ICTY constituted both an obligation stemming from the resolution concerned and from the UN Charter, or from another norm of international law obliging Serbia to co-operate, and an obligation arising from its status as a party to the Genocide Convention, this last clearly being the only one of direct relevance in the present case. The way the Court construed the term ‘international penal tribunal’ within the meaning of Article VI of the Genocide Convention would include, among other international courts and tribunals, also the permanent International Criminal Court.

4

Concluding Remarks

Millions of civilians around the world have either perished or live under daily threat due to violent conflict. Thus far, the collective response of the international community of States to crises unfolding in different areas of the world has been far from adequate. Clearly, as Rosenne has noted, the judicial treatment of appropriate elements of a crisis can, although not necessarily will, perform a significant, albeit not exclusive, role in the management of that crisis.39 International legal procedures can be resorted to at the pre-conflict stage, during the conflict, or in a post-conflict situation, to hold accountable those States responsible for violating international law. Evidently, proper use of existing international judicial procedures and institutional mechanisms which are entrusted with upholding commonly-agreed global values is necessary to implement the RtoP obligations. Both the advisory function and the dispute settlement function of the ICJ are relevant to interpreting, developing

Ge n ti an Z yb er i / 314

and enforcing obligations arising under RtoP for States and international organisations, including the UN. As mentioned above, provisional measures indicated by the ICJ could be a useful tool in protecting populations from the risks posed by armed conflict situations. Notably, a number of cases resolved by the ICJ provide a better understanding of international legal obligations arising under RtoP. Despite the progress made, the ongoing situations in Darfur (Sudan), the Democratic Republic of the Congo and other places around the world illustrate the fact that the level of accountability remains less than adequate, even when States and individuals are responsible for large-scale and systematic violations of human rights. Obviously, the enforcement of obligations arising under RtoP depends upon access to international justice mechanisms, legal clarity and judicial activism, action by the relevant political organs, and civil society awareness and participation. The current debate surrounding the institutionalisation of RtoP should be conducted and take into account a legal framework of recently adopted norms of conduct for States, international organisations and individuals, embodied in a number of international human rights and humanitarian law treaties, the Statutes of international courts and tribunals, and relevant guidelines by the ILC. Such a debate is taking place within an international setting which, as mentioned above, has experienced the emergence of new international judicial bodies alongside more traditional mechanisms of dispute settlement, such as the ICJ. Notwithstanding jurisdictional and other obstacles, the important role for international courts in general in developing, interpreting and enforcing human rights standards relevant to RtoP is obvious. A permanent international court as the ICJ, being one of the main organs of the UN and its principal judicial organ, can be instrumental in interpreting and further developing the legal components of RtoP expressed in the obligations of States and other relevant actors. The Court has shed light on relevant legal components of the responsibility to protect populations from genocide, namely on the duty to prevent and the duty of States to punish perpetrators and to cooperate with international courts and tribunals. Ensuring State and non-State actors’ compliance with the relevant and legallybinding international legal standards remains problematic. The implementation of the obligations arising under RtoP and the lack of sufficient clarity regarding the incumbent duties upon the different actors involved in carrying out these duties raise a number of complex issues. The ICJ, along with other main international courts and tribunals, can provide the necessary legal guidance and oversight in the process of the institutionalisation and implementation of RtoP. Its case law demonstrates that the Court has been and remains seized of cases of major importance for societies heavily affected by protracted armed conflicts, where appeals for enforcing obligations arising under RtoP before the ICJ remain a call of last resort for the affected populations.

Rt o P th r ou g h th e I nternatio na l Co urt o f Just ic e / 315

Notes 1 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) accessed 28 April 2011 (ICISS Report). 2 Report of the Secretary-General, ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677. 3 UNGA, ‘2005 World Summit Outcome’ (2005) UN Doc A/60/L 1 (WSO Document) para 139. 4 UNSC Res 1674 (28 April 2006) UN Doc S/RES/1674, para 4. 5 Dissenting Opinion of Vice-President Weeramantry in Legality of Use of Force (Serbia and Montenegro v Belgium) (Request for the Indication of Provisional Measures) [1999] ICJ Rep 183. 6 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention) art IX; Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195 (CERD) art 22; Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW) art 29; Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT) art 30; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3 (CMW) art 92; International Convention for the Protection of All Persons from Enforced Disappearance (adopted 20 December 2006, entered into force 23 December 2010) UN Doc A/61/488 CN1040.2008TREATIES-20 (CEED) art 42; The main instruments of international humanitarian law, namely the Geneva Conventions of 1949 and their Additional Protocols, do not include compromissory clauses bestowing jurisdiction on the ICJ. 7 Information Department, ‘International Court of Justice’ (fact sheet 23 July 2010) accessed 28 April 2011. 8 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) ( Jurisdiction and Admissibility) [2006] ICJ Rep 6. 9 ILC, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ in Yearbook of the ILC, 2001, Vol II, UN GAOR (A/CN4/SERA/2001/Add1) (Pt 2) (Commentaries to the Articles on State Responsibility) Commentary to Art 48. 10 J Crawford, A Pellet and S Olleson (eds), The Law of International Responsibility (Oxford UP, Oxford 2010) 6. 11 For a detailed discussion of the role of the International Criminal Court with regard to RtoP, see inter alia M Contarino and S Lucent, ‘Stopping the Killing: The International Criminal Court and Juridical Determination of the Responsibility to Protect’ (2009) GR2P 1, 560-83; H Olasolo, ‘The Role of the International Criminal Court in Preventing Atrocity Crimes through Timely Intervention: From the Humanitarian Intervention Doctrine and ex post facto Judicial Institutions to the Notion of Responsibility to Protect and the Preventative Role of the International Criminal Court’ (18 November 2010) Inaugural Lecture (on file with the author). 12 G Zyberi, ‘Provisional Measures of the International Court of Justice in Armed Conflict Situations’ (2010) 23 LJIL 584. 13 ICISS Report (n 1) XI.

Ge n ti an Z yb er i / 316

14 Corfu Channel (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4 (Corfu Channel case) at 22; For a more detailed discussion, see inter alia G Zyberi, The Humanitarian Face of the International Court of Justice: Its Contribution to Interpreting and Developing International Human Rights and Humanitarian Law Rules and Principles (Intersentia, 2008), 94-5 and 282-3. 15 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 257, para. 79. 16 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14 (Nicaragua case) para. 218. 17 Ibid para 218. 18 G Zyberi, The Humanitarian Face of the ICJ (n 14) 287. 19 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Merits) [1970] ICJ Rep 3 (Barcelona Traction case) para 34; For a detailed discussion of the concept and the application of erga omnes obligations, see inter alia A J J de Hoogh, Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States (Martinus Nijhoff Publishers, Nijmegen 1996); C J Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge UP, Cambridge 2005); C Tomuschat and J M Thouvenin (eds), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Martinus Nijhoff Publishers, Leiden 2006); M Ragazzi, The Concept of International Obligations Erga Omnes (Oxford UP, Oxford 2010). 20 Barcelona Traction case (n 19) para 33. 21 Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep 15, at 23. 22 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 (Palestinian Wall opinion) para 157. 23 S Rosenne, ‘A Role for the ICJ in Crisis Management’, in G Kreijen et al (eds), State, Sovereignty, and International Governance (Oxford UP, Oxford 2002) 181. 24 Provisional measures were granted in four cases, namely in the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro); Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda); and most recently in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation); For more details see Zyberi, Provisional Measures (n 12) 572. 25 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) ( Judgment) [2005] ICJ Rep 168, para 262-5; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 2 (Genocide case) para 451-8 and 467-9. 26 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Oral Proceedings) [7 March 2006] CR 2006/11 (translation) 8, para 3. 27 Genocide case (n 25) para 427. 28 Ibid. 29 Ibid para 430 (emphasis added). 30 Ibid (emphasis added). 31 Ibid. 32 Ibid. 33 Ibid para 439-450. 34 Ibid para 442.

Rt o P th r ou g h th e I nternatio na l Co urt o f Just ic e / 317

35 Ibid ff. 36 Ibid para 443. 37 Ibid para 444. 38 Ibid para 445. 39 Rosenne (n 23) 212.

21

Taking Prevention of Genocide Seriously Media Incitement to Genocide Viewed in the Light of the Responsibility to Protect Julia Hoffmann and Amaka Okany

1 Introduction Genocide does not happen spontaneously. Every incident of genocide is preceded by a similar series of processes, which are premeditated and organised. One of the common precursors of genocide seems to be the categorisation of people in groups, dehumanisation of a certain group and the subsequent propagation of what has been termed an ‘extermination belief ’.1 Incitement, in particular through the media, can play a sinister role in amplifying those processes. From Nazi Germany to Rwanda, the deadly potential of propaganda has been amply illustrated. In 2009, reflecting on the implementation of RtoP, UN Secretary-General Ban Ki-moon reminded us that we cannot afford to ignore the role that incitement – and the failure to act on it in time – has played in major atrocities in recent history: When a State manifestly fails to prevent such incitement, the international community should remind the authorities of this obligation and that such acts could be referred to the International Criminal Court, under the Rome Statute. ... in cases of imminent or unfolding violence of this magnitude against populations, this message may be more effectively and persuasively delivered in person than from afar. Until recently, however, the practice at the United Nations and in many capitals had too often been to ignore or minimize the signs of looming mass murder. The world body failed to take notice when the Khmer Rouge called for a socially and ethnically homogenous Cambodia with a ‘clean social system’ and its radio urged listeners to ‘purify’ the ‘masses of the people’ of Cambodia. Nor did it respond vigorously to ethnically inflammatory broadcasts and rhetoric in the Balkans in the early 1990s or in Rwanda in 1993 and 1994 in the months preceding the genocide.2

J uli a H o ff m an n and A ma ka O ka ny / 320

Incitement to genocide is not only a hallmark of genocide, but also possibly an indispensable prerequisite for genocide to occur.3 The potential danger of words has been recognised in international criminal law, as is evidenced by the criminalisation of ‘incitement to genocide’ in the International Convention on the Prevention and Punishment of the Crime of Genocide of 1948 (the Genocide Convention).4 The pressing question then becomes this: if we were able to detect (with the help of monitoring and content analyses of mass media content as has, for example, recently been piloted in the Kenyan context5 with regard to the pre-election discourse, or is currently being developed for the online environment by Google6, among others) the occurrence of incitement to genocide, which we know to be an element of the ideological preparation for genocide, would a serious commitment to preventing genocide not require intervention at those initial stages of incitement? Proceeding from the view that effective genocide prevention mandates specific attention to the incitement stage of genocide, the present chapter addresses the question whether the Responsibility to Protect (RtoP), which advocates an obligation of the international community to prevent genocide and other gross violations of human rights, contemplates an obligation to intervene at the incitement stage of genocide. It also addresses the question of what incitement should actually be prevented, and how to draw the line between incitement to genocide, which ought to be prevented, and mere hate speech that may be protected by international legal rules on freedom of speech. The chapter begins by discussing the root causes of genocidal conflicts and the role of the media in such conflicts (Section 2). Section 3 examines the extent to which RtoP establishes an obligation to prevent incitement. Section 4 addresses the question of how to conceptualise the crime of ‘incitement to genocide’. In particular, it examines whether a standard can be derived from the definition established in international criminal law,7 and how we can distinguish between speech that incites to genocide, which ought to be prevented, and merely controversial speech, which is protected by international human rights law. Section 5 discusses measures that can be taken by States to prevent incitement to genocide. The chapter ends with some concluding observations.

2

Genocidal Conflict Models and the Role of the Media

In furtherance of investigations into the causes of genocide, extensive datasets have been drawn up and a long list of variables tested for their usefulness as predictors of genocide. These scholarly investigations, exemplified by the works of scholars such as Staub, Harff, Krain and Rummel, identify a variety of factors that are usually present and contribute to the occurrence of mass killing or genocide.8 Those factors include scarcity of resources and the exclusion of sections of a community from

Ta k i ng Pr even t i on o f Geno c ide Serio usly / 321

political participation. Yet, the findings of social science research as to the causes of genocide underscore the reality that while economic and political inequality play a role in triggering intergroup conflicts that culminate in genocide, they do not necessarily lead to genocide occurring. Instead, genocide is invariably a product of a conscious decision by persons in positions of power or authority to use mass violence as a means of solving actual or perceived socio-economic or political problems.9 Also, as the success of a genocidal plan is greatly dependent on the acquiescence or participation – active or passive – of ordinary citizens, mobilising public support is usually one of the first steps taken by architects of genocide. Research has made clear that propaganda, through media, has been a major factor in achieving such mobilisation. Thus in places ranging from Germany in the 1930s to Rwanda in the 1990s, the masterminds of various genocidal campaigns have resorted to propaganda as a means to create amongst the population the particular mindset that is necessary for their participation in or acquiescence to genocide.10 Usually, in such propaganda, some kind of utopia is projected that would be achieved by the elimination of members of the target or victim group. The propagandists often seek to convince their audience of the need to ‘purify’ the community or ‘defend’ themselves against the ‘bloodthirsty’ enemy.11 An enemy is created who is portrayed as inhuman and evil and thus excluded from the moral universe. Fear is instilled in the target audience, as well as the idea that ‘preventive’ action by the target audience – the enemy’s alleged future victims – or its representatives is necessary for reasons of ‘self-defence’. Thus, before genocide becomes conceivable, what Hamelink terms an ‘extermination belief ’ must have been infused in the collective mind.12 Before and during the Balkan war of the 1990s, a war most remembered for the genocidal killing of 8,000 males in Srebrenica, political elites made use of partycontrolled media to stir ethnic tensions, revive old fears and grievances and project forgotten historic conflicts onto political debates of the day. Also during and prior to the 1994 genocide in Rwanda, Rwandan radio stations and newspapers played a prominent role in creating the climate of fear and hate that made the genocide possible.13 The process that took place in Rwanda mirrors events in Nazi Germany, where propaganda had been brought directly into the living rooms of the population by specially manufactured affordable radio sets, the Volksempfänger. In view of such events, the media have to be considered an amplifying force in some incidences of mass violence.14 They have been identified as an active player within the ‘eight stages of genocide’ famously identified by Gregory Stanton, in particular, the ‘dehumanisation stage’, which he described as follows: Denial of the humanity of others is the step that permits killing with impunity. The universal human abhorrence of murder of members of one’s own group is overcome by treating the victims as less than human. In incitements to genocide the target groups are called disgusting animal names – Nazi propaganda called Jews ‘rats’ or ‘vermin’; Rwandan Hutu hate radio referred to Tutsis as ‘cockroach-

J uli a H o ff m an n and A ma ka O ka ny / 322

es’. The targeted group is often likened to a ‘disease’, ‘microbes’, ‘infections’ or a ‘cancer’ in the body politic.15

In view of the role played by ordinary citizens in the execution of genocide, it is of pivotal importance to prevent such incitement, especially via the mass media. In the next section we examine whether – and to what extent – such an obligation is recognised at the international level, in particular under the principle of RtoP.

3

The Obligation to Prevent Incitement to Genocide

The central theme of RtoP is that States have a responsibility to protect their own citizens from avoidable catastrophe, such as mass murder and rape, and that when they are unwilling or unable to do so, that responsibility must be borne by the broader international community.16 The basic tenets of RtoP do not in themselves represent anything new.17 After all, the idea that sovereignty implies a duty to safeguard human rights lies at the very heart of pre-existing international human rights law. This much is clear from the reference in human rights treaties and jurisprudence predating RtoP to the responsibility of States to protect the human rights of persons ‘within their jurisdiction’ and subject to their ‘sovereign authority’.18 Also, importantly, the 1948 Genocide Convention recognises the duty of States parties to the Convention to prevent genocide. This obligation does extend to incitement of genocide. The International Court of Justice (ICJ) elaborated on the content of the obligation under the Genocide Convention to prevent genocide in the case of Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro). At the height of the war, the State of Bosnia and Herzegovina had filed an application before the ICJ, asking it to declare that Yugoslavia (Serbia and Montenegro) [hereinafter Serbia] had violated and continued to violate its obligations under the Genocide Convention. Among the provisions of the Convention it considered Serbia and Montenegro to have violated and continue to violate was Article III (c) of the Convention, which declares ‘direct and public incitement to commit genocide’ to be a crime. In relation to what it considered a continuation of those violations by Serbia and Montenegro, Bosnia had further requested from the Court, pending its final judgement on its main application, an order asking Serbia and Montenegro to cease and refrain from those violations. The Court, in granting the order, stated that Serbia and Montenegro was under a clear obligation to prevent the commission of genocide and,

Ta k i ng Pr even t i on o f Geno c ide Serio usly / 323

… in particular ensure that … any organisations and persons which may be subject to its control, direction or influence, do not commit any acts of genocide, of conspiracy to commit genocide, of direct and public incitement to commit genocide.19

The principle of RtoP reaffirms the obligations of States to prevent genocide. Even if one may argue that the central ideas of the RtoP doctrine constitute nothing new, the doctrine is fulfilling the crucial role of reviving a view of international relations that had lost prominence. One implication of the reference under the principle of RtoP to a responsibility of both individual States and the international community is that the norm serves as a means for gaining acceptance by States not party to the Genocide Convention of a responsibility to prevent genocide.20 Another crucial contribution of RtoP is that it goes beyond a barefaced advocacy of a duty to respond to gross human rights violations, to set out concrete modalities for carrying out such a duty. In this connection, the ICISS had identified three specific responsibilities it embraces – the so-called three pillars of RtoP.21 Given that incitement usually precedes violence, but also persists and may amplify it in the escalation stage, acting in situations of incitement could be placed under its prevention as well as its response pillar. The ICISS did not explicitly address the issue of incitement. It did not list it among the ‘root causes and direct causes of internal conflict and other man-made crises’22 forming the focus of its prevention pillar. UN bodies, on the other hand, in adopting RtoP, devote attention to the issue of incitement to genocide. For example, the UN General Assembly resolution, in which governments adopted the outcome of the 2005 World Summit (the WSO Document), stated that every Member State accepts ‘the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity’, and that ‘[t]his responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means’.23 Likewise, UN Secretary General Ban Ki-moon, in his 2009 report ‘Implementing the Responsibility to Protect’, reiterated this obligation to prevent incitement and criticised the past failure of the international community to take note of and deal decisively with incitement.24

4

Defining Incitement to Genocide: An International Standard

While there is thus support, both under the Genocide Convention and under the RtoP principle, that incitement to genocide should be prevented, it is less clear how such incitement should be defined and identified. For instance, can a distinction be drawn between, on the one hand, the incitement or creation of the particular state of mind that makes resort to genocide possible, and on the other hand, actually inciting or urging another to commit genocide? Or is this distinction artificial, and

J uli a H o ff m an n and A ma ka O ka ny / 324

should an incitement of racial hatred that culminates in genocide be considered as tantamount to an incitement to genocide?

4.1 Freedom of Expression and its Limits

In considering what acts qualify as incitement and should be prevented, we should take into account that preventing speech stands in opposition to the right to freedom of expression, which constitutes a bedrock of democratic society and is firmly protected in many national constitutions and by international human rights law. And while it is accepted that the freedom of expression, like many other freedoms, has its limits, it is at the same time an established principle of national and international law that restrictions on individual rights are to be convincingly established and narrowly interpreted.25 The importance accorded to this right is evidenced by judgements of the European Court of Human Rights, which emphasise that the right to freedom of expression is not only intended to protect inoffensive speech, but also covers ideas which are prone to ‘offend, shock or disturb’.26 Nonetheless, the freedom of speech is not unlimited. Limitations must be placed on human rights when necessary for ensuring that individuals do not exercise their freedoms in a way that infringes on the freedom of others.27 One rationale recognised in human rights law for imposing limitations on the right to free speech is the protection of others against hostility or even violent attacks resulting from what is generally referred to as ‘hate speech’. Such speech is addressed in many international instruments28 that oblige States to prohibit or criminalise racist and xenophobic communications, speech that incites discrimination, hostility or violence and certain other specific forms of offensive speech within their respective jurisdictions.29 ‘Incitement to genocide’ would clearly fall within the category of ‘hate speech’ within the meaning of international human rights law and qualify as incitement of violence which States are required under human rights law to prohibit or criminalise. In line with the aforementioned purpose of limitations placed on human rights, its prohibition or prevention would constitute a means of striking a balance between the right of an individual to freedom of expression and the human rights of persons forming the target of such incitement, such as their right to life and their right not to be subjected to violent attacks. It is, however, evident that it is not every incitement of hatred or of violence that would qualify as an incitement to genocide – as an incitement of acts aimed at destroying a specific national, ethnical, racial or religious group as such. The pertinent question therefore is when can an incitement to hate or violence be said to constitute incitement to genocide, and in particular, for the specific purposes of international efforts aimed at preventing genocide. In the next section, we examine whether reliance should for this purpose be placed on the definition of incitement to genocide in international criminal law.

Ta k i ng Pr even t i on o f Geno c ide Serio usly / 325

4.2 Developments in International Criminal Law: from Nuremberg to Arusha

A possible basis for defining incitement (that should be prevented under the RtoP doctrine) is its definition in international criminal law. The Genocide Convention and the respective statutes setting up the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC) all refer to incitement to genocide punishable under those treaties as ‘direct and public incitement’.30 The reference to the ‘public’ requirement is apparently aimed at focusing on the type of incitement that has historically played a role in genocides: that made through public speeches and other ways of reaching out to the public – the type of incitement that is distributed via the media. The ‘direct’ requirement, on the other hand, specifies the link that must exist between a given communication and genocide for the communication to qualify as incitement to genocide punishable in international criminal law. When examining international jurisprudence on this issue, two broad conditions for considering a given media or other public communication as a ‘direct’ incitement to genocide emerge: first, the speech must explicitly or implicitly urge or call for the extermination of a national, ethnic, racial or religious group, not simply make a vague or indirect suggestion that genocide be committed; and second, the linguistic, cultural, social, historical and political contexts of a communication are relevant for establishing whether it constitutes an implicit yet direct call for genocide. The requirement that incitement to genocide be ‘direct’ is inspired by the trials of two World War II criminals, Julius Streicher and Hans Fritzsche, before the International Military Tribunal (IMT) at Nuremberg.31 The difference in the conclusions drawn by the IMT in those two cases has long served as the framework for pinpointing the fine line that separates inflammatory, racist speech from direct incitement to genocide. In the Streicher case, the Tribunal did not seem to have trouble convicting the accused on the basis that the relevant contents of Der Stürmer, the magazine publication of which he was editor, constituted a ‘direct’ call for the extermination of the Jewish people. The magazine had described Jews as swarms of locusts which must be exterminated completely.32 In the Fritzsche case, on the other hand, the IMT reached a different conclusion. A senior official in Goebbels’ Ministry of Popular Enlightenment and Propaganda and head of its Radio Division, Fritzsche had been accused of having ‘incited and encouraged the commission of War Crimes by deliberately falsifying news to arouse in the German People those passions which led them to the commission of atrocities’. The Tribunal nonetheless acquitted him, one basis for his acquittal being that the speeches ‘did not urge persecution or extermination of Jews’.33 Streicher and Fritzsche thus set a strict standard of directness or unambiguousness of a speech in its call for genocide as a criterion to fall into the category of international crime.

J uli a H o ff m an n and A ma ka O ka ny / 326

This strict standard would seem to have been followed in the judgements of the ICTR. In the first case before it, Akayesu34, the tribunal stated that the ‘direct’ element of incitement implies that the perpetrator specifically and intentionally provoke or urge another to commit genocide; that more than mere vague or indirect suggestion is required for conduct to constitute direct incitement.35 It also identified as a state of mind required for considering a speech to qualify as direct incitement, the intent of its maker to directly prompt or provoke another to commit genocide. The ICTR made the important clarification that the cultural and linguistic background of a speech is relevant for determining whether or not it constitutes ‘direct’ incitement to genocide. In other words, a specific call to commit genocide may be made in words – including coded speech, slang and so forth – which while they may be vague or indirect in their meaning to others of a certain background, would be direct in their meaning to persons of a given national, cultural or linguistic background.36 However, while maintaining that the relevant speech, even in coded form, must specifically call for genocide, the tribunal had also seemed to admit the possibility that speech that does not specifically call for genocide, but creates an atmosphere in which it could occur, could well fall within its definition of direct incitement to genocide.37 In the next case in which the tribunal dealt with a charge of incitement to genocide – the so called Media case – the tribunal clarified the extent to which what would ordinarily be classified as hate speech could qualify as incitement to genocide. The defendants in this case were found guilty of direct and public incitement to genocide. The publications and broadcasts which the trial chamber treated in that case as constituting non-explicit but direct calls for genocide included publications and broadcasts which warned readers that the government was not effectively protecting them from certain people, and that they needed to be ‘vigilant’ and organise their own self-defence to prevent their own extermination. As the trial chamber pointed out, the incessant calls on the listeners to ‘be vigilant’ had become a coded term for aggression in the guise of self-defence. As in Akayesu, the tribunal seemed to suggest that speech which does not implicitly or explicitly call for genocide might still, based on the context in which it is made, be regarded as incitement to genocide: A statement of ethnic generalisation provoking resentment against members of that ethnicity would have a heightened impact in the context of a genocidal environment. It would be more likely to lead to violence. At the same time the environment would be an indicator that incitement to violence was the intent of the statement.38

The decision of the trial chamber in the Media case has been criticised as failing to distinguish hate speech from incitement to genocide. The defendants also appealed

Ta k i ng Pr even t i on o f Geno c ide Serio usly / 327

against the decision. In that appeal, the Appeals Chamber of the tribunal took care to point out that there existed a distinction between hate speech and direct incitement to genocide.39 Yet, it was also of the view that the Trial Chamber had not confused mere hate speech with direct incitement to commit genocide, that it was correct in considering the context of a speech as relevant for deciding whether discourse constitutes direct incitement to commit genocide,40 and that the fact that the Trial Chamber had referred to the possible impact of certain speech in its analysis did not mean that it considered any potentially dangerous hate speech to constitute direct incitement to commit genocide.41 The Bikindi case,42 concerning a famous Rwandan pop singer, constituted yet another opportunity for the ICTR to clarify the issue. However, the tribunal’s judgment in that case raises more questions than answers in that respect. While the trial chamber noted that the historical and political context in which Bikindi’s songs were composed and disseminated was relevant for ‘properly interpret[ing]’ those songs43 as well as ‘how the songs inspired action’,44 it concluded that none of his songs constituted direct and public incitement to commit genocide per se, as there was insufficient evidence to conclude beyond reasonable doubt that Bikindi had composed them with the specific intention to incite killings. The tribunal had, thus, found the existing atmosphere of political and ethnic tension in Rwanda to be insufficient to demonstrate that Bikindi’s hate speech was accompanied by an intent to incite genocide. Thus, it seems that beyond the two conditions mentioned above, the case law is unclear as to whether, and if so when, hate speech that does not call for genocide but can lead to it could be an indicator that the speech was made with the intent to incite genocide and as such qualifies as an incitement to genocide.

4.3 Defining Media Incitement to Genocide for the Purposes of RtoP

There is much reason to link the trigger for preventative action required under the RtoP principle to the international criminal law definition of incitement as discussed above. After all, RtoP is conceptualised around four core crimes and has as such an in-built criminal law dimension. At the same time, it should also be recognised that the definition in international criminal law is specifically designed to serve as a basis for individual criminal responsibility, and it is not immediately obvious why States should only act to prevent when an act rises to the level of individual criminal responsibility.45 It seems very likely that acts that do not qualify as incitement in criminal law terms may still have a causal effect on genocidal processes, which ought to be prevented under RtoP. Whereas international criminal law on incitement to genocide, as interpreted by tribunals such as the ICTR, has so far always been applied ex post facto – meaning after a genocide has already occurred – prevention efforts would naturally have to rather focus on the likelihood of genocide occurring as the basis for defining incitement for their purposes.

J uli a H o ff m an n and A ma ka O ka ny / 328

Therefore, it is contended here that for the purposes of RtoP, incitement to genocide may be defined more broadly, considering hate speech which does not explicitly or implicitly call for genocide as tantamount to an incitement to genocide based on the criterion identified in the Media trial: where the climate is so volatile that hate speech carries the risk of triggering genocidal violence.46 This would mean that besides explicit or implicit calls for genocide, hate speech that is likely to lead to genocidal violence can be considered as incitement to genocide. Focusing on the possibility as opposed to the certainty of genocide occurring as a result of a speech would furthermore be in accordance with the precautionary principle, a principle that is frequently applied to human rights debates, especially when it comes to environmental and health issues47 and that has been applied for example by the European Court of Justice (ECJ) to uphold a ban on UK beef exports.48 That focus would also resonate with the statement of the ICJ that the obligation of State parties to the Genocide Convention to act to prevent genocide is triggered the instant a State learns of, or should normally have learned of, the existence of a serious risk (as opposed to certainty) that genocide will be committed.49 Thus, just as the ICJ considered that a risk of genocide occurring should trigger preventive action, it may be argued that a serious risk of genocide occurring could be a factor in determining whether a given hate speech constitutes incitement to genocide for preventive purposes – in other words, was made with the intent to trigger a genocide. The idea that hate speech can be dangerous and must be prevented, even if it would not qualify as incitement to genocide, has international support. For example, Former UN Secretary General Annan, in discussing a five-point action plan he had established for preventing genocide, had cited as ‘a precipitating factor to look for’ alongside situations matching the legal definitions in the developing international case law on genocide, ‘the prevalence of expressions of hate speech targeting populations at risk, especially if they are uttered in the context of an actual or potential outbreak of violence’.50 The conclusion is thus that a serious commitment to preventing genocide would require prevention of incitement to genocide as well as hate speech, which, because it is made in a volatile context, carries the risk of precipitating genocide. Making this clear distinction or operationalising these concepts for the purpose of media monitoring is likely to be very difficult. Yet, a number of suggestions have been made on how to address these problems.51 For example, Benesch has proposed to operationalise the criterion of incitement to genocide – as opposed to ‘merely’ hate speech – as ‘speech that has a reasonable possibility of leading to genocide’ by taking into account the concurrent presence of a number of factors: – As understood by its audience, the speech calls for genocide. – The speaker has influence or authority over the audience. – The audience has the capacity to commit genocide against the would-be victims. – Previous incidents of violence against the target group have taken place.

Ta k i ng Pr even t i on o f Geno c ide Serio usly / 329

– Sources of news and information are severely limited. – Speech bears the linguistic hallmarks of incitement to genocide. – The audience has already been exposed to similar calls.52

5

Measures for Preventing Media Incitement to Genocide and Hate Speech that Could Lead to Genocide

Having concluded that a broad reading of the RtoP principle requires that incitement to genocide as well as hate speech which could lead to a genocide must be prevented, we need to ask how States and the international community would become aware of the need to take preventative measures, and what measures they could use to achieve prevention. Essential to the first question is the establishment of an institutional framework for monitoring media content, comparable to an independent UN unit, as had for example been advocated by Metzl in response to the inaction during the Rwandan genocide.53 This step would be necessary for detecting media publications which pose a threat and would necessitate preventive action. Such an institution could constitute part of a national or international early warning system. Paragraph 138 of the Summit Outcome envisaged the establishment of a UN early warning capability. In response, the UN has created the office of the Special Adviser to the Secretary General on the Prevention of Genocide, whose tasks include collecting existing information, in particular from within the UN system, and acting as a mechanism of early warning to the Secretary-General, and through him to the Security Council.54 Also, in the light of the complementarity of the responsibilities of the Special Adviser to the Secretary General on the Prevention of Genocide and the Special Adviser on the Responsibility to Protect, the UN Secretary-General had proposed the establishment of a joint office for collaborating their efforts, whose tasks would include enhancing the operation of the early warning mechanism that will be created out of pre-existing UN arrangements.55 The Secretary-General’s 2009 report on implementing the responsibility to protect further elaborated that an early warning framework would require: (i) the timely flow to United Nations decision makers of accurate, authoritative, reliable and relevant information about the incitement, preparation or perpetration of the four specified crimes and violations; (ii) the capacity for the United Nations Secretariat to assess that information and to understand the patterns of events properly within the context of local conditions; and (iii) ready access to the office of the Secretary-General.56

While the obligation of States under RtoP to prevent genocide includes an obligation to prevent genocide abroad, there are obviously limits to what a State can do to

J uli a H o ff m an n and A ma ka O ka ny / 330

prevent incitement to genocide in areas outside its territory. However, as recognised by the ICJ in the Bosnia Genocide case, a State can use its influence on foreign governments or entities as a result of political, economic, military or other ties it has with them as a means of persuading it to act in accordance with the obligation not to commit genocide or its incitement.57 One measure a State can take to prevent incitement to genocide occurring outside its territory is the jamming of broadcast signals of a radio station that is broadcasting incendiary messages. This idea was considered but ultimately not implemented by the United States during the Rwandan genocide. However, it was supported by UN Security Council Resolution 1161 (1998) on Rwanda, in which the Council had urged States to cooperate in countering radio broadcasts and publications that incited acts of genocide, hatred and violence in the region.58 A question that arises is whether a measure such as jamming radio broadcasts is a coercive measure of intervention which would require UN Security Council approval. This is far from clear. Though statements in UN documents suggest such jamming is actually required of States as a means of fulfilling their obligations to prevent genocide, there does not appear to have been any discussion as to whether it is a use of coercive power that would require UN Security Council approval.59

6

Concluding Observations

In this chapter, we set out to make the case that a serious international commitment to fulfilling the responsibility to protect populations from genocide requires attention to preventing incitement of genocide, especially by the media. We also proposed an international standard for defining incitement to genocide which must be prevented, while at the same time advocating the prevention of hate speech which, because of the particular circumstances in which it is made, is capable of triggering genocide. We further identified measures that should be taken by States in fulfilment of an RtoP obligation to prevent incitement to genocide. A potential problem that arises in the context of a genocide prevention mechanism focused on incitement of genocide is the effect that incitement prevention efforts may have on freedom of speech. Fears have been expressed that the establishment of a duty to prevent incitement could provide governments with a new tool for muzzling the opposition. In response to this, it is worth pointing out that a government that does not respect the rule of law would usually not need the excuse of preventing incitement for making unjustified limitations on free speech. On the other hand, in a country where justice is rendered on the basis of the rule of law, any clearly unjustified restriction of speech would be successfully challenged in the Courts.60 At this point, one might expect the conditions needed to address the role of incitement in order to help make prevention more effective to be in place. A standard to define what sort of speech ought to be considered as incitement that must be

Ta k i ng Pr even t i on o f Geno c ide Serio usly / 331

addressed under RtoP has been proposed, some preventive measures can be specified that would be acceptable under current international law, and initial efforts have been undertaken by NGOs,61 as well as the UN, to institute effective monitoring and information-sharing to facilitate early warning. The major difficulty, as in all other areas of effective genocide prevention, remains, as recent history demonstrates, in the area of actual genocide prevention. The greatest challenge may not be designing measures for preventing genocide but getting States to act. This may prove to be especially difficult if genocide is about to take place in an area which is not – as the US ambassador to Somalia tellingly put it – ‘a critical piece of real estate for anybody in the post-Cold War world’.62 Intervention ‘only’ for the sake of potentially saving lives does not seem to have been prevalent in recent history, moreso as the geopolitical relevance of wide swathes of the developing world has declined even further since the fall of the Berlin Wall. Regardless of an international obligation to prevent incitement to genocide and to create early warning systems to detect risky situations requiring intervention, the reality of international politics will remain a factor to contend with.

Notes 1 C J Hamelink, ‘Media between Warmongers and Peacemakers’ (2008) 1(1) Media, War & Conflict, 77. 2 Report of the Secretary-General, ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677. 3 S Benesch, ‘Inciting Genocide, Pleading Free Speech’ ( 2004) XXI(2) World Policy Journal, 62; A J Vetlesen, ‘Genocide: A Case for the Responsibility of the Bystander’ (2000) 37(4) Journal of Peace Research, 519; See also the finding of the Appeals Chamber in The Prosecutor v. Nahimana, Barayagwiza and Ngeze. While it held that there was insufficient evidence to establish a causal link between RTML broadcasts prior to 6 April 1994 and the occurrence of genocide, it did recognise that its broadcasts after that date substantially contributed to the genocide that ensued. 4 Convention on the Prevention and Punishment of Genocide, status as of 11 November 2010, United Nations Treaty Collection accessed 11 November 2010. 5 See S Benesch’s reporting at . 6 For more information on this project see eg . 7 For a critical discussion on the issue of relying on criminal law as standard to trigger RtoP see the contribution of Kleffner in this volume. 8 E Staub, The Roots of Evil: The Origins of Genocide and Other Group Violence (Cambridge University Press, New York 1989); B Harff, ‘No Lessons Learned from the Holocaust? Assessing Risk of Genocide and Political Mass Murder since 1955’ (2003) 97(1) American Political Science Review, 57; M Krain, ‘State-Sponsored Mass Murder: The Onset and Severity of Genocides and Politicides’ (1997) 41(3) Journal of Conflict Resolution, 331;

J uli a H o ff m an n and A ma ka O ka ny / 332

R J Rummel, ‘Democracy, power, genocide, mass murder’ (1995) 39(1) Journal of Conflict Resolution, 3. 9 M Shaw, War and Genocide (Polity Press, Cambridge 2003). See also Goldhagen’s contribution in this volume. 10 See eg G Caplan, ‘Rwanda (and other Genocides) in Perspective’(2007) 2(3) Genocide Studies and Prevention, 275; A Des Forges, ‘Leave None to tell the Story: Genocide in Rwanda’ (1999) Human Rights Watch & FIDH. 11 See eg R De la Brosse, ‘Political Propaganda and the Plan to Create a “State for all Serbs”. Consequences for using the media for Ultra-Nationalist Ends’ (2003) Report compiled at the request of the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia. Available at accessed 13 July 2008; S Benesch, ‘Vile Crime or Inalienable Right: Defining Incitement to Genocide’ (2008) 48(3) Virginia Journal of International Law, 485; J Belman, ‘“A Cockroach Cannot Give Birth to a Butterfly” and Other Messages of Hate Propaganda’ (2004) accessed 7 July 2011. 12 Hamelink, ‘Media between Warmongers and Peacemakers’. 13 K Kurspahic, ‘Bosnia: Words Translated Into Genocide. Speech, Power, Violence: Balkans experiences of 1990s accessed 7 July 2011; A Oberschall, ‘The Manipulation of Ethnicity: From Ethnic Cooperation to Violence and War in Yugoslavia’ 23 Ethnic and Racial Studies, 982; De la Brosse, ‘Political Propaganda’. 14 See eg A Thompson (ed) The Media and the Rwanda Genocide (London, Pluto Press 2007); M-S Frère, ‘The Media and Conflicts in Central Africa’ (Lynne Rienner Publishers, London 2007). 15 See http://www.genocidewatch.org/images/8StagesBriefingpaper.pdf for the various stages. They are: (a) classification (the creation or identification of separate classes of persons, with a certain class seen as constituting the enemy, the ‘them’ in the ‘us vs them’ distinction); (b) symbolisation (the use of names such as ‘Tutsi’, ‘Hutu’, ‘Jew’, physical characteristics such as skin color or nose shape and other symbols to signify the recognised classifications); (c) dehumanisation (for example, calling the target groups animal names such as ‘rats’ or ‘vermin’ as in the case of Nazi propaganda against Jews, or cockroaches’ as was the case with Rwandan Hutu hate radio – the conception of the victim group as less than human); (d) organisation (planning, including the determination of the method for carrying out the genocide); (e) polarisation (provocative actions aimed at exacerbating tensions or differences between opposing groups until peaceful settlement of a dispute becomes an impossibility); (e) preparation (drawing up of death lists, imposition of identify cards that would subsequently be used for getting victims, concentration or herding of victims to specific locations such as a ghetto or stadium and other acts which set the stage for the actual perpetration of the genocide); (f ) extermination (killings, mutilations and related acts – the implementation of the genocide); (f ) denial (denial of the occurrence of the genocide, occasionally done through subtle means such as claiming the deaths were the result of a civil war or disputing whether the killing fits the legal definition of genocide). 16 See International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Report) (December 2001) accessed 28 April 2011 (ICISS Report), VIII. 17 See contributions in the present volume, such as eg by Brollowski.

Ta k i ng Pr even t i on o f Geno c ide Serio usly / 333

18 Also, the ICISS itself has acknowledged this fact, as it has described as being among the foundations of the RtoP doctrine: ‘the obligations inherent in the concept of sovereignty [and] … specific legal obligations under human rights and human protection declarations, covenants and treaties, international humanitarian law and national law’. ICISS Report, XI. 19 International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Provisional Measures, Order of 8 April 1993, ICJ Reports 1993, p. 3 at p. 24, para 52 A(2). 20 It is worth drawing attention in this respect to the fact that the number of States that have endorsed the responsibility to protect and pledged to act in accordance with it (191 States) is greater than the number of States ­that as of November 2010 had ratified the Genocide Convention (141 States). See Convention on the Prevention and Punishment of Genocide, status as of 11 November 2010, United Nations Treaty Collection accessed 11 November 2010. 21 For a more detailed elaboration of the separate pillars, see the introduction and the contribution of Edward Luck, Special Advisor to the UN Secretary General on the Responsibility to Protect, elsewhere in this volume. 22 ICISS Report, XI. 23 UNGA, ‘2005 World Summit Outcome’ (2005) UN Doc A/60/L 1 (WSO Document), 31 24 Report of the Secretary-General, ‘Implementing the Responsibility to Protect’. 25 In a General Comment on Article 19 of the European Convention which guarantees the right to freedom of expression, the Office of the United Nations High Commissioner for Human Rights states that, when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. The necessity for any restrictions must be convincingly established and narrowly interpreted. 26 Handyside v. the United Kingdom (5493/72) [1976] ECHR 5 (7 December 1976), para 49. 27 Along these lines, Art 17 of the European Convention on Human Rights (ECHR) prohibits any State, person or group from abusing its rights by engaging in acts aimed at destroying any of the rights recognised in the ECHR or limiting those rights in a manner not permitted by the ECHR. 28 Universal Declaration of Human Rights (UDHR) (adopted 10 December 1948) UNGA Res 217; International Covenant on Civil and Political Rights (ICCPR) (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171; Convention on the Elimination of All Forms of Racial Discrimination (CERD) (adopted 21 December 1965, entered into force 4 January 1969) UNGA Res 2106; Additional Protocol to the Convention on cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems (adopted 28 January 2003) ETC 189. Also, with Art 10(2), the European Convention on Human Rights (ECHR) also contains a provision which is relevant to hate speech. For a recent overview of relevant case law, see D Voorhoof and H Cannie, ‘Freedom of Expression and Information in a Democratic Society: The Added but Fragile Value of the European Convention on Human Rights’ (2010) 72 International Communication Gazette, 407. Furthermore, the UN Human Rights Committee has commented on the ‘special duties and responsibilities’ that come with the exercise of the right of freedom of expression, specifically when it comes to racist speech. See eg Tarlach McGonagle, ‘Freedom of Expression and Limits on Racist Speech: A Difficult Symbiosis’ (2001) 13 Interights Bulletin – A Review of the International Centre for the Legal Protection of Human Rights, 135.

J uli a H o ff m an n and A ma ka O ka ny / 334

29 See Art 20(2) ICCPR, Art 4(a) CERD and Arts 3-6 of the Additional Protocol to the Council of Europe’s Cybercrime Convention, 30 Art 3(c) Genocide Convention, Art 2(3)(c) ICTR Statute, Art 4(3)(c) ICTY Statute and Art 25(3)(e) of the ICC Statute. 31 As the crime of ‘incitement to genocide’ did not exist in international law at that time, both had been charged with incitement to murder and extermination Both are crimes which fall under the category of crimes against humanity in international law, and can today be distinguished from the crime of genocide by the specific intent required for an act to constitute genocide – the intent to destroy a group as such. 32 HM Attorney-General, ‘The Trial of German Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremburg, Germany’ (Her Majesty’s Stationery Office, London 1950) 501; W K Timmermann, ‘Incitement in International Criminal Law’ (2006) 88 International Review of the Red Cross, 823, 827. 33 Timmermann, ‘Incitement in International Criminal Law’, 828. 34 International Criminal Tribunal for Rwanda, Prosecutor v Akayesu ( Judgement) ICTR-964-T, T Ch I (30 May 1996) (Akayesu I). 35 See Akayesu I, para 557 and accompanying footnote citing the following statement of the ILC: ‘The element of direct incitement requires specifically urging another individual to take immediate criminal action rather than merely making a vague or indirect suggestion’. See also para 560, where it states that ‘The mens rea required for the crime of direct and public incitement to commit genocide lies in the intent to directly prompt or provoke another to commit genocide’. 36 Akayesu I, paras 557-55 37 Akayesu I, para 557 includes the following consideration: ‘The Chamber further recalls that incitement may be direct, and nonetheless implicit. Thus, at the time the Convention on Genocide was being drafted, the Polish delegate observed that it was sufficient to play skillfully on mob psychology by casting suspicion on certain groups, by insinuating that they were responsible for economic or other difficulties in order to create an atmosphere favourable to the perpetration of the crime’. 38 Nahimana I, para 1022. The Nahimana trial chamber had not stated what it meant by a ‘genocidal environment’. It seems from the facts of the case that by this it meant a volatile or threatening atmosphere in which genocide has become or been entertained as a possibility. 39 That distinction being that the latter involves a ‘direct appeal to commit an act’. It also pointed out that while in most cases, direct and public incitement to commit genocide can be preceded or accompanied by hate speech, only direct and public incitement to commit genocide is prohibited by the ICTR Statute. International Criminal Tribunal for Rwanda, Prosecutor v. Nahimana et al. ( Judgement) ICTR 99-52-A (28 Nov 2007) ( J Meron, dissenting) (Nahimana II), para 692. 40 Nahimana II, para 715. 41 Nahimana II, para 711. 42 International Criminal Tribunal for Rwanda, Prosecutor v. Bikindi ( Judgement) ICTR-0172-4-T, T Ch III (2 December 2008) (Bikindi Case). Bikindi Case, paras 247-248 Bikindi Case, paras 254-255. 43 Bikindi Case, paras 247-248. 44 Bikindi Case, para 253. 45 See also chapter by Kleffner elsewhere in this volume. 46 Nahimana I, para 1022.

Ta k i ng Pr even t i on o f Geno c ide Serio usly / 335

47 See eg C Raffensperger and J Tickner, Protecting Public Health and the Environment: Implementing the Precautionary Principle (Island Press, Conneticut 1999); J Cameron and J Abouchar, ‘The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment’, (1991) 14 B.C. Int’l & Comp. L. Rev. 48 See Bovine spongiform encephalopathy (‘BSE’) or ‘mad cow disease’ case (United Kingdom v. Commission), European Court of Justice Case No. C-180/96, [1998] ECR I-2265, para 99 where the ECJ stated that ‘when there is uncertainty as to the existence or extent of risks to human health, Community institutions may take protective measures without having to wait until the reality and seriousness of those risks becomes fully apparent’. 49 International Court of Justice, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro) ( Judgement), 26 February 2007 (Bosnia and Serbia Judgement), para 431. 50 UN Commission on Human Rights, Report of the Secretary-General on the Implementation of the Five Point Action Plan and the Activities of the Special Adviser on the Prevention of Genocide, U.N.Doc E/CN.4/2006/84, 9 March 2006, para 26. It is also worth noting in this connection that after the acquittal of Joseph Fritzsche at the Nuremberg tribunal on the basis that his publications ‘did not urge persecution or extermination of Jews’, he was subsequently sentenced to nine years of forced labour by the German Courts (Spruchkammer I and the Berufungskammer I) in the context of the de-Nazification trials that were conducted in post World War II Germany, the basis for this conviction being the role his progaganda played in achieving public support for the Nazi ideology. The role of hate speech in creating a climate of fear and hatred in which incitement to genocide would be effective was also acknowledged. 51 See eg G S Gordon, ‘From Incitement to Indictment? Prosecuting Iran’s President for Advocating Israel’s Destruction and Piecing Together Incitement Law’s Emerging Analytical Framework’ (2008) 98 J. Crim. L. & Criminology 853, 895; J La Mort, ‘The Soundtrack to Genocide. Using Incitement to Genocide in the Bikindi Trial to Protect Free Speech and Uphold the Promise of Never Again’ (2010) 43 Interdisciplinary Journal of Human Rights Law. 52 S Benesch, ‘Vile Crime or Inalienable Right: Defining Incitement to Genocide’ (2008) 48(3) Virginia Journal of International Law, 485. 53 J P Metzl, ‘Information Intervention: When Switching Channels Isnt’t Enough’ (1997) 76 Foreign Affairs, 15. 54 For more detail please refer to Francis Deng’s contribution in this volume. 55 Report of the Secretary-General, ‘Implementing the Responsibility to Protect’. 56 Para 10 (d), available online at . accessed July 2011. 57 Bosnia and Serbia Judgement. 58 United Nations Security Council, Resolution 1161 of 9 April 1998, S/RES/1161, available at accessed 3 June 2008. 59 For a discussion of so-called information interventions under international law, see E Blinderman, ‘International Law on Information Intervention’, in M Price & M Thompson (eds), Forging Peace. Intervention, Human Rights and the Management of Media Space (Edinburgh University Press, Edinburgh 2002). 60 For example, charges of ‘incitement to violence’ once made against the Zimbabwean opposition leader Morgan Tsvangirai were thrown out by the Kenyan Supreme Court.

J uli a H o ff m an n and A ma ka O ka ny / 336

61 For recent efforts of a number of NGOs to monitor the 2010 pre-election phase in Burundi and to react to potentially dangerous hate speech by concerted media campaigns, see Synergy project (eg at ). 62 S Totten, ‘The Intervention and Prevention of Genocide: Sisyphean or Doable?’ 2004 6(2) Journal of Genocide Research, 229, 237.

22

Contextualising the Prevention of Genocide Francis M. Deng

1 Introduction My appointment as the Special Adviser of the Secretary-General on the Prevention of Genocide in May 2007 follows an almost equally daunting mandate as Representative of the Secretary-General on Internally Displaced Persons, which I carried out for 12 years from 1992 to 2004. Someone recently asked me why the United Nations (UN) assigns me such difficult mandates. My response was that they know I will modestly play the role of a catalyst for others with the requisite capacities to step in and do what needs to be done. I see this catalytic role as primarily comprising three functions: raising awareness about the generic nature and root causes of genocide and related atrocities; acting as a mechanism for early warning by collecting, analysing and disseminating relevant information on situations of potential genocide or its precursors; and advocating and mobilising for timely and effective action to prevent or halt genocide and mass atrocities.

2

Understanding the Nature and Root Causes of Genocide

Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide1 defines genocide as any of the specified acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. These acts include: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on members of the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group. As defined, genocide is one of the most heinous crimes on which humanity is expected to unite to prevent and punish. For the same reason, however, it is a crime which by its very horrific nature evokes great sensitivity, emotionalism and denial from both the perpetrators and those who would be called upon to intervene to prevent or stop it. Known historical cases of genocide have nearly always been

F ra n c i s M. Deng / 338

acknowledged after the fact, when the perpetrators have themselves been defeated or have otherwise vanished and the situation has been radically transformed or reformed. It then becomes a judgement of the victor over the vanquished. The best course of action therefore is prevention at an early stage, before the stakes become so high that denial sets in, even as allegations of genocide become loudly pronounced. For the same reason, it is also of vital importance to demystify genocide from being viewed as something too horrific and sensitive for comfortable discussion, and is therefore better avoided, to a problem which, though horrendous, can be constructively discussed with the objective of finding practical ways of preventing it. I see genocide as an extreme form of identity-related conflict which emanates not from the mere differences, but from the implications of those differences in terms of access to power, resources, services, employment and the enjoyment of the rights of citizenship. In virtually all situations of genocidal conflict, the society concerned is acutely divided between the in-groups, who enjoy the rights and dignity of citizenship, and out-groups, who are discriminated, marginalised and denied the rights and dignity of citizenship. This was brought home to me during my term in office as Representative of the Secretary-General on Internally Displaced Persons. The pattern of my country missions was to meet with the leadership at various levels, then interact with the internally displaced, and end the mission by reporting back to the national leadership. The question I would ask the displaced communities was: ‘What message would you want me to take back to your Government leaders?’ The answer I always got was essentially the same across the continents. In a Latin American country, the leader of the displaced community responded: ‘Those are not our leaders. To those people, we are not citizens, but criminals and our only crime is that we are poor’. In a Central Asian country, the response was the same, except that the distinguishing factor was ethnicity rather than socio-economic class: ‘Those are not our leaders; none of our people is in that government’. In an African country, the prime minister is reported to have said to a senior UN official: ‘The food you give to those people [his country’s internally displaced persons (IDPs)] is killing my soldiers’. It is obvious from these illustrative responses that these are countries that suffer from an acute crisis of identity, with deeply rooted cleavages and vacuums of moral responsibility. It should be noted that in many of these situations, the division often reflects distorted perceptions rather than reality. In many cases, there is as much in common as that which divides, even in ethnic terms. In Burundi and Rwanda, whenever I addressed audiences, I could recognise some typical Tutsis and some typical Hutus, as they have been stereotyped, but there were also many whom I could not identify with either side. When I asked the Minister of Foreign Affairs of Burundi whether one could always tell a Tutsi from a Hutu, his answer was: ‘Yes, but with a margin of error of 35 per cent’. In Darfur, and indeed in Sudan as a whole, it is not easy for a casual outside observer to tell an Arab from an African. In the former

C on tex t u ali s i ng th e Preven tio n o f G eno cide / 339

Yugoslavia, except perhaps through names, I could not distinguish the Serbs from the Croats and the Muslims. The same was true in Azerbaijan between the Azeris and the Armenians. Despite obvious similarities, the pattern in these conflict situations is for the adversaries to stigmatise, demonise and dehumanise ‘the enemy’ to be viewed as virtually non-humans who can therefore be killed without remorse. We are familiar with the Hutu characterisation of the Tutsis as cockroaches. Similar characterisations are commonplace in acutely divided societies in conflict. In one country, during my IDP mission, when I explained to an inquisitive lawyer that I was in the country to look into the human rights of the displaced, his response was: ‘Those are not human beings to be entitled to human rights’. The casual condemnation of people whose conduct we disapprove of by calling them animals has a deeper significance than we normally associate with the usage. From my own discussions with communities in conflict, two conflicting themes from the history of their relations are usually reflected. One is bewilderment about the source of the conflict: ‘We have always lived peacefully together, inter-married and shared our happy and sad occasions together. We do not know where this conflict has come from’. The other theme is to see the conflict as deep-rooted and recurrent. Both themes are quite understandable. When communities co-exist and interact as neighbours, it is inevitable that they come into conflict from time to time. By the same token, they must develop conventional ways of managing their differences. For the most part they live in peace and harmony. But when they come into conflict, they recall all the other conflicts in their historical relations. What is also significant is when the parties in conflict are related in various ways; those conflicts tend to be particularly bitter. It is sociologically established that conflicts within the family are more embittering than conflicts with more distant adversaries with whom on-going interaction is remote or limited.

3

Constructive Management of Diversity as a Preventive Strategy

Viewed as identity-related conflicts rooted in gross inequalities, the obvious strategy for preventing genocidal conflicts must be constructive management of diversity aimed at promoting the equitable distribution of power, wealth, services and development opportunities without discrimination based on national, ethnic, racial or religious identities. The goal must be the creation of a national identity framework with which all groups can identify with a sense of equality and the dignity of belonging. To analyse and assess situations to determine the risk of genocide, my office has developed a Framework of Analysis involving eight categories of risk factors which we use to evaluate any given situation. The Framework was developed through an

F ra n c i s M. Deng / 340

extensive consultation process involving experts in the field, UN colleagues, academics and members of civil society. The eight categories of factors are not ranked, and the absence of information relating to one or more categories does not necessarily indicate the absence of a risk of genocide related to that factor. What is significant is the cumulative effect of the factors. Where these factors are effectively addressed, no longer exist, or are no longer relevant, the risk of genocide decreases commensurately. First category of risk factors: inter-group relations, including record of discrimination and/or other human rights violations committed against a group – relations between and among groups in terms of tensions, power and economic relations, including derogatory perceptions about the targeted group; – existing and past conflicts over land, power, security and expressions of group identity, such as language, religion and culture; – past and present patterns of discrimination against members of any group which could include: • serious discriminatory practices, for instance, the compulsory identification of members of a particular group; imposition of taxes/fines; permission required for social activities such as marriage; compulsory birth-control; the systematic exclusion of groups from positions of power, employment in state institutions and/or key professions; • significant disparities in socio-economic indicators showing a pattern of deliberate exclusion from economic resources and social and political life; • overt justification for such discriminatory practices; • history of genocide or related serious and massive human rights violations against a particular group; denial by the perpetrators; • references to past human rights violations committed against a possible perpetrator group as a justification for genocidal acts against the targeted group in the future.

Second category of risk factors: circumstances that affect the capacity to prevent genocide Structures that exist to protect the population and deter genocide include effective legislative protection, an independent judiciary and effective national human rights institutions, the presence of international actors such as UN operations capable of protecting vulnerable groups, neutral security forces the and an independent media. Relevant circumstances further include:

C on tex t u ali s i ng th e Preven tio n o f G eno cide / 341

– existing structures; – the effectiveness of those structures; – whether vulnerable groups have genuine access to the protection afforded by the structures; – patterns of impunity and lack of accountability for past crimes committed against the targeted groups; – other options for obtaining protection against genocide, such as presence of peacekeepers in a position to defend the group, or seeking asylum in other countries.

Third category of risk factors: presence of illegal arms and armed elements – whether there exists a capacity to perpetrate genocide – especially, but not exclusively, by killing; – how armed groups are formed, who arms them and what links they have to state authorities, if any; – in cases of armed rebellions or uprising, whether a state has justified targeting groups from which armed actors have drawn their membership.

Fourth category of risk factors: motivation of leading actors in the state/region; acts which serve to encourage divisions between national, racial, ethnic and religious groups – underlying political, economic, military or other motivation to target a group and to separate it from the rest of the population; – the use of exclusionary ideology and the construction of identities in terms of ‘us’ and ‘them’ to accentuate differences; – depiction of a targeted group as dangerous, disloyal, a security or economic threat or as unworthy or inferior so as to justify action against the group; – propaganda campaigns and fabrications about the targeted group used to justify acts against a targeted group by use of dominant, controlled media or ‘mirror politics’; – any relevant role, whether active or passive, of actors outside the country (such as other governments, armed groups based in neighbouring countries, refugee groups or diasporas) and respective political or economic motivations.

F ra n c i s M. Deng / 342

Fifth category of risk factors: circumstances that facilitate perpetration of genocide (dynamic factors) Any development of events, whether gradual or sudden, that suggest a trajectory towards the perpetration of genocidal violence, or the existence of a longer-term plan or policy to commit genocide: – sudden or gradual strengthening of the military or security apparatus; creation of or increased support to militia groups (such as sudden increases in arms flow) in the absence of discernible legitimate threats; – attempts to reduce or eradicate diversity within the security apparatus; – preparation of local population to use them to perpetrate acts; – introduction of legislation derogating the rights of a targeted group; – imposition of emergency or extraordinary security laws and facilities that erode civil rights and liberties; – sudden increase in inflammatory rhetoric or hate propaganda, especially by leaders, that sets a tone of impunity, even if it does not amount to incitement to genocidal violence in itself; – permissive environment created by ongoing armed conflict that could facilitate access to weapons and commission of genocide.

Sixth category of risk factors: genocidal acts – acts that could be obvious ‘elements’ of the crime of genocide as defined in Article 6 of the Rome Statute, such as killings, abduction and disappearances, torture, rape and sexual violence, ethnic cleansing or pogroms; – less obvious methods of destruction, such as the deliberate deprivation of resources needed for the group’s physical survival and which are available to the rest of the population, such as clean water, food and medical services; – creation of circumstances that could lead to a slow death, such as lack of proper housing, clothing and hygiene or excessive work or physical exertion; – programmes intended to prevent procreation, including involuntary sterilisation, forced abortion, prohibition of marriage, and long-term separation of men and women; – forcible transfer of children, imposed by direct force or through fear of violence, duress, detention, psychological oppression, or other methods of coercion; – death threats or ill treatment that causes disfigurement or injury, forced or coerced use of drugs or other treatment that damages health.

C on tex t u ali s i ng th e Preven tio n o f G eno cide / 343

Seventh category of risk factors: evidence of intent ‘to destroy in whole or in part’ – statements amounting to hate speech by those involved in a genocidal campaign; – in a large-scale armed conflict, widespread and systematic nature of acts; intensity and scale of acts and invariability of killing methods used against the same protected group; types of weapons employed (in particular weapons prohibited under international law) and the extent of bodily injury caused; – in a non-conflict situation, widespread and/or systematic discriminatory and targeted practices culminating in gross violations of human rights of protected groups, such as extrajudicial killings, torture and displacement; – the specific means used to achieve ‘ethnic cleansing’ which may underscore that the perpetration of the acts is designed to reach the foundations of the group or what is considered as such by the perpetrator group; – the nature of the atrocities, such as dismemberment of those already killed that reveal a level of dehumanisation of the group or euphoria at having total control over another human being, or the systematic rape of women which may be intended to transmit a new ethnic identity to the child or to cause humiliation and terror in order to fragment the group; – the destruction of or attacks on cultural and religious property and symbols of the targeted group that may be designed to annihilate the historical presence of the group or groups; – targeted elimination of community leaders and/or men and women of a particular age group (the ‘future generation’ or a military-age group); – other practices designed to complete the exclusion of a targeted group from social/political life.

F ra n c i s M. Deng / 344

Eighth category of risk factors: triggering factors Future events or circumstances seemingly unrelated to genocide that might aggravate conditions or spark deterioration in the situation, pointing to the likely onset of a genocidal episode. These ‘triggers’ might include: – upcoming elections (and associated activities such as voter registration or campaigning, revision of delimitation of electoral boundaries, a call for early elections or the postponement or cancellation of elections, disbanding of election commissions, imposition of new quotas/standards for political party or candidate eligibility); – change of government outside of an electoral or constitutionally sanctioned process; – instances where the military is deployed internally to act against civilians; – commencement of armed hostilities; – natural disasters that may stress state capacity and strengthen active opposition groups; – increases in opposition capacity, which may be perceived as a threat and prompt pre-emptive action, or rapidly declining opposition capacity which may invite rapid action to eliminate problem groups. Although the Framework of Analysis is a work in progress and is by no means a definitive scientific standard, it provides the Office of the Special Advisor on the Prevention of Genocide with a tool for assessing the risk of genocide with a degree of objectivity, consistency and predictability. It can be used as a source of gathering relevant information from within the UN system and from other sources external to the UN. When sufficiently understood and accepted, it would not only be a framework for states to provide information on the situation in their respective countries, but also a means of looking at themselves in the mirror, assessing their record of performance, and take necessary actions to remedy any shortcomings that could be precursors to genocidal conflicts. In that sense, The Framework of Analysis could be an effective tool for self-generated preventive measures by states. Diversity is globally widespread and hardly any country can claim to be homogenous. Even Somalia, which was thought to be one of the most homogeneous countries in the world, has been torn apart by clan-based power struggle compounded by religious ideological differences. It follows that the potential for genocide is equally global. Some perform remarkably well, others not so well, while others fail dismally. This is why, in addition to generic awareness-raising, it is important to conduct case studies of best practices to be emulated and worse practices to be avoided.

C on tex t u ali s i ng th e Preven tio n o f G eno cide / 345

4

Constructive Engagement with Governments

Cooperation with governments is crucial to early prevention. This cooperation should be based on the normative concept of ‘Sovereignty as Responsibility’ which we developed at the Brookings Institution’s Africa Programme to reappraise PostCold War approaches to conflicts in Africa and which guided me in my work as Representative of the Secretary-General on Internally Displaced Persons for 12 years. This concept sees sovereignty not negatively as a barricade against legitimate international involvement in internal affairs, but rather as a positive concept of state responsibility for its people, if necessary with the support of the international community. It has now been well documented that Sovereignty as Responsibility provided the ground for the development of the more authoritative emergent concept of the Responsibility to Protect, as enshrined in the World Summit Outcome Document of the 2005 World Summit of Heads of State and Government. Both concepts rest on three pillars: 1. the responsibility of the state to protect its own populations; 2. the responsibility of the international community to support the state capacity to discharge its national responsibility; and 3. the responsibility of the international community to step in and fill the vacuum of responsibility when a state is manifestly failing. Equally important is the regional and sub-regional approach, which encourages governments to cooperate in addressing generic problems of mutual concern in a spirit of solidarity. So far, we have developed close cooperation with the African Union (AU), the Inter-Governmental Authority for Development, and the Economic Community of West Africa States. I have been invited to address the Peace and Security Council of the AU and its Panel of the Wise, which decided to integrate our Framework of Analysis into the AU’s early warning mechanism. Contrary to initial expectations, African countries have responded quite favourably to the mandate. We have organised several consultations and conferences in Africa, and I have been invited by a number of governments and have in fact carried out missions to several countries. It is however important that we not be misunderstood as focusing only on Africa, whether positively or negatively. While I have visited a number of nonAfrican countries and participated in consultations and conferences in Europe and the Americas, it is my hope that we can also develop close cooperation with other regional and sub-regional organisations. Along those lines, I undertook in November 2010 an extensive mission in Asia and engaged in constructive and productive dialogue with several members of the Association of Southeast Asian Nations. We have also made incremental progress in our interaction with the Security Council and I have been invited to brief the Council, albeit informally, on several occasions, both on generic issues pertaining to the mandate and on specific country

F ra n c i s M. Deng / 346

situations. For the last two years, I have made it a point to brief the President of every month on the progress of our work. I also report to the Human Rights Council every two years. And we are in the process of developing a strategy for engaging with the General Assembly.

5 Conclusion To conclude, it should be reiterated with emphasis that we must reduce the inhibiting emotionalism associated with the word ‘genocide’ and see it for what it is: an extreme form of identity-related conflict that should be constructively managed as part of good governance and respect for human rights. Given this broad structural prevention approach to genocide, there is a role for all the various UN agencies, departments and programmes as well as non-UN actors to play, whether the problems that need to be addressed are political, economic, developmental, or involve the denial of fundamental rights and civil liberties. In this comprehensive framework of collaboration, our role is purely a catalytic one aimed at mobilising those with the requisite capacities to act effectively in a timely manner. As I often say, this is a seemingly impossible mandate that must be made possible through inclusive collaboration.

Note 1 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention) art 2.

23

Ending Our Age of Suffering A Plan to End Genocide Daniel Jonah Goldhagen1

Genocide is much discussed and poorly understood. It is regularly decried, yet little is done to prevent it. It is seen to be one of the most intractable of modern phenomena, a periodic cataclysm that erupts seemingly out of nowhere, often in distant places – Indonesia, Guatemala, Cambodia, Bosnia, Rwanda and Darfur – where ethnic conflict or hatred is said to have spun out of control. So we can do little about it. Bill Clinton said as much while Serbs were slaughtering Bosnians: ‘Until these folks get tired of killing each other, bad things will continue to happen’. Perhaps we fail to prevent genocides not because they cannot be stopped, and not just because we lack the will to stop them, but because we have misunderstood their nature. Perhaps if we understood genocide properly, a feasible path to stopping this scourge of humanity would become apparent. It may seem bold to say that we have not understood genocide. But, after studying the subject for decades, that is the conclusion I have reached. Genocides are so horrifying, so seemingly in defiance of the ordinary rhythms of social life, so threatening to what we believe we know about ourselves and the world – so out of this world – that we do not think clearly about them. We need to start over and rethink their every aspect: what they are, how they begin, how and why they end, why they unfold as they do, why victims are chosen, why the killers kill, and, most of all, what we can do to stop them. Even something as fundamental as the real extent of the problem is unknown. Since the beginning of the twentieth century, mass murderers have killed more, perhaps many more, than 100 million people – a much greater number than have died as a consequence of conventional military operations. So genocide is, by this fundamental measure, worse than war. Furthermore, people tend to think of our era’s mass slaughters – of Armenians, Jews, Kurds, Bosnians, Tutsis, Kosovars and Darfuris (not to mention recent history’s long list of less-well-known mass murders) – as discrete, unusual events. This is wrong: large-scale mass murder is a systemic feature of modern states and the international system, and that is how we should begin to treat it. The foundational problem, in fact, is not even genocide. Genocide, however we define it, is but one expression of a broader and more fundamental phenomenon: eliminationism.

Da n i el J ona h Gold h a gen / 348

Political and social conflicts among groups exist in all human societies. In many societies, groups come to be seen as deleterious to the well-being of the majority or, sometimes, a powerful minority. How this happens and the character of the pernicious qualities projected onto such groups vary enormously. When it does, people can deem the perniciousness of such populaces to be so great that they want to neutralise them by eliminating the group or by destroying its capacity to inflict putative harm. So they employ any of the five principal means of elimination: forced transformation, repression, expulsion, prevention of reproduction, or extermination. But, whatever means they choose, the desire and the attempt to eliminate peoples or groups should be understood as the core problem. Precisely because these eliminationist means are functional equivalents, perpetrators typically use several of them simultaneously. The Turks did so for the Armenians. The Germans did so for the Jews. The Sudanese have done so for their victims, and so did the Serbs. Alisa Muratčauš, former president of the Association of Concentration Camp Torture Survivors in Sarajevo, explains that the Serbs ‘aimed to eliminate all Bosnian people’. Yet they used a variety of means: ‘Some people will be expelled to another country, a Western country. Some people would be killed. Some people will be [kept] alive for maybe [the Serbs’] personal needs. Who knows? Maybe like slavery’. Whenever we see these large-scale violent assaults, such as expulsions or incarcerations mixed together with killing, we should immediately recognise them as being eliminationist assaults (which could also expand into much larger-scale killing) and respond to them with all the vigour that we ought to apply to genocides. And we should certainly not sit on our hands with pointless debates about definitions – does it qualify as genocide? – as we have done with the former Yugoslavia and Darfur. We should realise that the non-lethal aspects of eliminationist assaults are as critical to combat as the killing itself. Appreciating this helps to make clear that the problem we are confronting is even more vast and more urgent. Genocide and eliminationism should no longer receive the third-rate treatment that they currently do from our politicians: they should be at the core of present and future international policymaking. Beyond appreciating its breadth, there are two other crucial facts we need to recognise about eliminationism. First, it is a form of politics. Like war, eliminationism is the extension of politics by other means. Political leaders use eliminationist measures to maintain or further power, socially and politically transform a country, defuse a real or putative threat, purify a society according to some ideological blueprint, or achieve any of many other aspirations. Mass murder and elimination are thus politics not in a superficial sense, but at their core, because they are purposeful, calculated acts of leaders meant to achieve political goals. They are an integral part of the repertoire of political leaders, always in principle available, and, in our time, frequently used. It is precisely because eliminationism is such a successful form of politics – those employing it almost always effectively carry out the eliminationist

End i ng Ou r A ge o f S uff ering / 349

task – that political leaders have adopted it so often during the last century and this one. Second, even though eliminationism may be grounded in widespread beliefs among groups about the pernicious nature of other people, such hatreds or prejudices are not what unleash eliminationist assaults. Eliminationist assaults are not spontaneous popular outbursts. Like other major state policies requiring large institutional mobilisation and regional or nationwide coordination, eliminationism is initiated by one political leader or a small group of leaders, who at a specific moment make a discrete decision to expel, kill or otherwise eliminate the targeted people. Idi Amin initiated the slaughter of hundreds of thousands in Uganda. Presidents Fernando Romeo Lucas Garcia and José Efraín Ríos Montt were responsible for the mass murder in Guatemala of Mayans under the guise of counterinsurgency. Mengistu Haile Mariam masterminded and initiated the various Ethiopian eliminationist programmes. Pol Pot and the Khmer Rouge leaders around him instituted the murderous policies that took almost two million Cambodian lives. The Argentinean junta’s members started the ‘dirty war’ against their real and imagined enemies. Augusto Pinochet authorised the slaughter of thousands in Chile. Hafez Al Assad gave the order to indiscriminately murder people in Hama. Saddam Hussein orchestrated the annihilation of hundreds of thousands of Iraqis. Slobodan Milošević enacted one Serbian eliminationist onslaught after the next. Théoneste Bagosora, the Rwandan Ministry of Defence’s Director of Services, and a small circle of associates set in motion the comprehensive assault on the Tutsis. Omar Al Bashir and the other political Islamists who run Sudan initiated the mass murder of Darfuris. In none of these cases was the eliminationist assault inevitable. These decision-makers could have decided otherwise. They could have spared innumerable lives. So why did they decide to do it? Even the most monstrous leaders have also been pragmatic and purposeful politicians. All sought power and all made every effort to keep it. Even when political leaders are – like their followers, who willingly implement their policies – animated by hatred, even when they dehumanise the targeted people, they are still politicians, which means they are still interested in power. They will pursue eliminationist policies only if they believe these policies will succeed at enhancing their own power or furthering cherished goals – that is, only if they believe the benefits to themselves will outweigh the costs. And, more often than not, from Indonesia to Ethiopia to Guatemala to Iraq to Sudan, that is exactly what eliminationist policies have done. This explains why rationally calculating political leaders use such policies so often. Recognising that eliminationism – not only its most murderous variant, genocide – is a widespread problem, and that it is a form of politics, and that it is pursued by leaders who believe (almost always correctly) that it will benefit them, how can we respond politically? Can we remove eliminationism from the standard repertoire of policy? In other words, can we save millions of lives?

Da n i el J ona h Gold h a gen / 350

Past efforts have accomplished little. The 60-year-old United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) has proven itself almost useless, and the United Nations (UN), as the international community’s lead institution, has been a foot-dragging disaster, doing more to enable eliminationist leaders than to stop them. Special tribunals and the International Criminal Court (ICC), all necessary and good, have been too late, too slow and too partial to be effective – the ICC took more than five years from the start of the Darfur genocide just to issue an unenforceable arrest warrant for Al Bashir! Serious diplomatic efforts have been meagre. The occasional military response has been years late. The Responsibility to Protect movement, while promising, remains slow-moving. All in all, the current anti-genocide regime is ad hoc and toothless. In fact, it would be fair to say that, as a practical matter, it does not exist. And eliminationism more generally – which can include the expulsion of a vast number of people from their homes – is barely on the international community’s radar, meaning that, unless an assault is seen to fit the restricted definition of genocide, it is unlikely that the international community will respond forcefully. A robust anti-eliminationist system would contain three substantial and interrelated components: prevention, intervention and punishment. Currently, there is no prevention regime, only infrequent attempts at intervention, and rarely any punishment. All three parts of such a system need to be thought through, but preventing eliminationist assaults, more than intervening to end them or punishing the perpetrators after the fact, should be our initial focus. Prevention works in two ways. First, changing the mindset of leaders and creating conditions that make eliminationism utterly unworkable removes it from the toolkit of political leaders so that pursuing such politics does not even occur to them. Democratic institutions do this effectively. Mass murder and elimination have ever more become domestic rather than international matters. And not only do today’s democracies not practice such domestic politics, but, it is fair to say, eliminationism is not even a consideration for their leaders. A world of democracies would be a world without mass murder, or, at worst, with an enormously reduced incidence of it. Eliminationism today is the practice of dictatorships, and today’s dictatorships should all be considered proto-eliminationist regimes. Even when their leaders and dominant groups are not undertaking eliminationist assaults, precisely because they are always at least implicitly threatened by the groups and people they are repressing, they are at any moment not that far away from ramping up their repressive measures to eliminationist levels of violence. Second, and far more immediately effective and doable, is radically altering the cost-benefit calculus of political leaders and the immediate subordinates upon whom they rely, to make the price of eliminationist politics so costly that leaders will not opt for it. A critical feature of international politics is generally underestimated: the capacity of political leaders to learn. In today’s globalised world, knowledge of what is possible or impossible, permissible or impermissible is rapidly disseminated and absorbed. Until now, political leaders have learned that the poli-

End i ng Ou r A ge o f S uff ering / 351

tics of eliminationism is a politics of impunity. We could teach them and the world the opposite. If we did, we could rapidly end or greatly reduce the threat posed by eliminationism. Let us look at two possible measures for raising the price of eliminationism. If leaders knew that initiating eliminationist assaults would turn them into permanent outlaws – that is, the legal doctrine of Hostis Humani Generis (enemies of humanity), until now applied to pirates, would apply to them for the rest of their lives – and, if they understood that they would be relentlessly hunted until they were brought to justice, their cost-benefit calculations would radically change. If not just leaders but all their high-ranking civilian and military subordinates were similarly declared international outlaws (by dint of serving in institutions that, according to international law, can clearly be deemed criminal organisations) and subject to the same penalties as the political leaders, those leaders would calculate their chances of enlisting their subordinates, and relying on their cooperation, very differently. Of course, as the ICC has shown, indicting an eliminationist leader is easier than bringing him to justice. But what if the democratic countries of the world were to adopt a modified version of the United States’s Rewards for Justice programme – which has led to the capture and killing of major terrorists and, when instituted after the fact, Rwandan genocidaires – guaranteeing that any eliminationist assault would immediately trigger million-dollar bounties being placed on the heads of political and military leaders and their high-ranking subordinates? Then the critical conditions of deterrence would be met: a powerful disincentive would be in place, accompanied by a reasonable certitude on the part of anyone contemplating the deed that the disincentive will be applied to him. No political leader, wanting the good life, would want to be wanted dead or alive. Which dictator in a poor country could even be sure his own bodyguards would not turn on him? The Obama administration, like earlier Democratic and Republican administrations, offers such bounties for terrorists who kill a few dozen or a few thousand people. How can we justify not doing the same when the lives of millions are at stake? I asked Rwandan Minister of Justice Tharcisse Karugarama – who has steeped himself in the problem of genocide and knows more about it than just about any other public figure in the world – whether a guarantee that anyone initiating genocide would be hunted down would have prevented the Rwandan genocide and would be effective in preventing future mass slaughters. ‘Definitely, definitely, definitely, definitely, many times definitely’, he replied, then explained: If people knew that at the end of the day they’ll be the losers, they’d never invest in a losing enterprise. Because genocide, as you correctly pointed out, is a political enterprise, it’s a political game. But again, it’s a power play, it’s wealth, it’s everything. So, if people involved knew at the end of the day they’d be the losers, they would not play the game. That’s for sure.

Da n i el J ona h Gold h a gen / 352

There are other deterrents available as well. Most dictators rely on their militaries to stay in power. If dictators understood that their eliminationist policies would trigger the destruction of their country’s military capability, then this also would be a powerful disincentive. Under such a policy, political leaders would quickly learn: if they choose to initiate an eliminationist assault, the world’s democracies, led by the United States, would bomb their military bases and forces (steadfastly avoiding population centres and civilian infrastructure). How many dictators would begin an eliminationist assault if they were facing such consequences? Bombing by the North Atlantic Treaty Organisation (NATO) in 1995 quickly forced Milošević to stop the eliminationist assault on Bosnians. If it had been done three years earlier, when the onslaught began, many tens of thousands of people would not have lost their lives, and hundreds of thousands more would not have been expelled from their homes, raped or brutalised. To buttress the deterrent force of such threats, these and other political, diplomatic and military measures should be communicated to all world leaders and their high-level subordinates by every available means the moment they assume office, democratically or not. Handbooks should be distributed by every major international and regional association (the UN, NATO, the World Trade Organisation, the African Union and so forth), spelling out these and other anti-eliminationist measures. Every political leader, cabinet member and high-ranking military and police official ought to be put on notice: Should you decide to participate in eliminationist assaults or serve eliminationist regimes, this is what awaits you. Some may say these measures are too costly – referring to money, not lives. But, compared to the cost of allowing mass elimination to take place (or of forcibly inserting ground troops), these steps would actually be relatively inexpensive. The United States alone spent $ 1.35 billion in the first ten years for Bosnia’s reconstruction, and the International Criminal Tribunal for the former Yugoslavia (ICTY) has cost more than $ 1.5 billion. Others may object that such policies would lead to too much intervention. But these policies are designed to provide effective deterrence – and, if deterrence ever fails, then, with the first intervention, to strengthen deterrence by demonstrating what will happen to the next set of political leaders who initiate an eliminationist assault. The danger in the world today is anything but too much intervention to stop mass murderers. The real problem is getting the world’s democracies to intervene at all. So let us focus on trying to get a robust anti-eliminationist system in place, rather than worrying about the hypothetical and unlikely problem of too much intervention – or the practical need to perhaps make occasional exceptions. Still others may declare that these steps, costly or not, are too radical. But, as with so much thinking about genocide, such vision is clouded: the really radical stance consists of maintaining the status quo, the do-nothingness that has governed international law and politics as we all stand by and watch eliminationist regimes slaughter, expel and brutalise millions.

End i ng Ou r A ge o f S uff ering / 353

If in 1900 you had said that it would be possible to end imperialism, few would have believed you. Imperialism, after all, had been a fact of the human condition for millennia. Likewise if you had said that it would be possible to stop war from being the principal means by which a large percentage of the countries of the world relate to one another. Yet each has occurred. The notion that we could end eliminationism – a phenomenon that has existed as long as humanity – may seem similarly fanciful today. But it is much less unrealistic than it sounds. Just as it only takes one or a few political leaders to decide to slaughter or expel millions, so too can a few political leaders, a few moral men and women, go a long way toward ending such practices. (These relatively low-cost preventive measures – compared to after-the-fact invasions – also have the virtue of being far more likely to get them to act.) Let us not be content to utter pieties. Let us not wait for the glacially moving international community – centred around the UN – to evolve. The matter is urgent. Tens of thousands can die and be brutalised every day. The leaders of a few democracies, or even just the president of the United States, could institute bounties and guarantee the application of force. This would open up a new antieliminationist era. So far, on these matters, Barack Obama has gone in precisely the wrong direction. Instead of attempting to show that there are consequences for eliminationist murdering and expulsions, his administration has taken a soft line toward Al Bashir, one of the worst eliminationists and mass murderers of our time. In doing so, the administration is broadcasting a simple message around the globe, a message being heard by other dictators contemplating similar assaults: you will get away with it. Obama and those serving under him present themselves as people of conscience. So we must ask: with millions of future lives hanging in the balance, how can Obama and his administration fail to devote their considerable political skill and our country’s power to ending our age’s greatest scourge? In retrospect, would anyone really disagree that, if such measures could have prevented the Rwandan genocide and the deaths of 800,000, then we should have taken them – regardless of international law’s obstructionism and whatever unease we might feel? So how can we say that we should not adopt these same measures to prevent the next Rwanda, and the next one after that?

Note 1 This chapter is based on an article that first appeared in The New Republic.

Concluding Observations Julia Hoffmann and André Nollkaemper In these concluding observations we identify the leading threads that run through the contributions to this book, with a view to assessing the current status and role of the responsibility to protect (RtoP) and its future potential. We have grouped the relevant themes as they emerge from this book under four headings: 1) autonomy of RtoP; 2) legalisation of RtoP; 3) balancing of responsibilities between territorial states and the international community; and 4) sharing of responsibilities within the international community. The latter two headings are of particular importance for the dominant challenge that emerges from this book, and indeed for the development of RtoP as such: that is, how states and the international community can and should cooperate to give meaning, substance and effect to the responsibility to protect. For each category, under the heading ‘developments’, we first identify and comment on the relevant developments that the contributors to this book have identified, and then, under the heading ‘implications for research’, we identify those questions that remain open and that deserve further thought and research.

1 Autonomy

1.1 Developments

A critical claim of the RtoP doctrine is that both the state where mass atrocities are committed and the international community (a term that we use here as shorthand for states and international organisations) have a responsibility to prevent such atrocities. This claim raises the preliminary question as to what extent RtoP in fact plays an independent role in defining such responsibilities. Many of the contributions in this book have consequently raised the existential question of whether the principle of RtoP has any real autonomy or identity, in light of the many principles and procedures that are already in place for responding to mass atrocities. Luck notes in this context: ‘[t]he responsibility to protect is an important innovation, not a radical departure. It is based on the existing body of law, not on novel theories’.1 There is a well-established body of law, as well as a range of more political principles, strategies and institutions that have aspired largely to the same aims as RtoP, such as, for example, existing approaches to conflict prevention.2

J uli a H o ff m an n and A ndré N o llka em per / 356

To put this in more concrete terms: when the military actions in Libya in the spring of 2011 contributed to the protection of civilians, can we determine that this was in any way attributable to the use of the principle of RtoP that according to Security Council (SC) Resolution 1973(2011) was at the foundation of the action, or would the outcome have been exactly the same had RtoP not existed? And, if we consider whether or not the UN and/or the North Atlantic Treaty Organisation (NATO) should have intervened in Syria, or rather left the developments to local actors (and, if so, how states should apportion responsibilities between themselves), can any of that be said to have been guided by the concept of RtoP? We need to distinguish several aspects here. First, it is clear that the emergence of RtoP was part of a wider shift in political values that has also led to an increasing concern about human rights and international justice. In other words, RtoP did not emerge on its own, but is part of the normative fabric and belief system of major actors in the international system. This was also true for the states that sponsored RtoP: in his analysis of the role of Canada in the emergence of the concept, Gionet makes it clear that RtoP was indeed part and parcel of a human security agenda.3 It was also true for the development of the concept at the UN.4 Second, RtoP largely relies on existing procedures and mechanisms rather than necessarily bringing about or requiring anything new. Thus, the normal procedures of the Security Council,5 regional organisations6 and the rules governing non-forcible measures by individual states7 are fully applicable. Even specific strategies that are often claimed to be central to RtoP, such as early warning,8 were in fact in place well before RtoP and continue to exist independently from it. Third, while the wider normative context and the use of the same mechanisms for implementation in principle need not deny the concept a separate identity, in fact, RtoP may be hard to distinguish from its normative context. That is obviously true for the responsibilities of states to protect persons within their jurisdiction from international crimes. Indeed, it is even somewhat of an understatement to say that states have a ‘responsibility to protect’ in such cases, whereas there are longstanding obligations to offer protection under international law.9 At the same time, there is considerable overlap between RtoP and the Security Council agenda items relating to ‘protection of civilians’,10 conflict prevention,11 the peacekeeping operations obligations of third states under international humanitarian law,12 the Genocide Convention13 and the law of international responsibility.14 These overlaps are not a coincidence. They are a direct consequence of the pragmatic, but in retrospect not unproblematic,15 decision of the 2005 World Summit (the WSO Document) to explicitly limit RtoP to four international crimes.16 These crimes have been embedded in a complex normative system, both in regard to the ‘territorial state’ and in regard to third states and the wider international community, notably through the UN and the International Criminal Court (ICC). In that normative system there is little space for yet more principles and approaches. Of course, while the system is already rather full, there has always been the possibility for a political choice to extend the existing available procedures for RtoP. However,

C on clu d i n g Ob s er vatio ns / 357

it appears that this has not been done – most notably indicated by the explicit rejection of the option to extend RtoP in the direction of humanitarian intervention.17 The resulting paradox is that RtoP can now be said to have been successful even when it is not invoked, or, even more, that it can be called successful precisely because it is not invoked.18 As Morada points out, the military junta of Myanmar accepted international humanitarian assistance only through the Association of Southeast Asian Nations’ (ASEAN’s) backdoor diplomacy and non-coercive ‘intervention’, while the fact that ‘ASEAN did not openly invoke RtoP as justification for its “intervention” indicates that there are in fact alternative measures that could be adopted by regional organisations in dealing with crisis situations in their own backyard’.19 The fact that the ambitions of RtoP can be achieved even without anyone relying on or even thinking of RtoP suggests that RtoP indeed does not have an autonomous identity. Several authors have nonetheless highlighted the potential of RtoP to break away from the established normative framework and to assert a distinctive identity. Perhaps most controversially, and despite evidence to the contrary in the WSO Document,20 a strong claim persists that RtoP essentially justifies and indeed calls for humanitarian intervention when that is needed to save people from mass atrocities and the Security Council fails to act. Indeed, there is a close conceptual and historical connection between RtoP and humanitarian intervention.21 Clearly, the ultimate challenge remains whether the world will stand by in the face of another genocide, when for one reason or another the Security Council does not act. As Goldhagen poignantly notes: In retrospect, would anyone really disagree that, if such measures could have prevented the Rwandan genocide and the deaths of 800,000, then we should have taken them – regardless of international law’s obstructionism and whatever unease we might feel? So how can we say that we should not adopt these same measures to prevent the next Rwanda, and the next one after that?22

More generally, emphasising and integrating different approaches to prevention23 – rather than reacting after human lives have been lost – may be a noteworthy attribute of RtoP. Such a shift might unite and create synergies among existing organisations and initiatives as well as sparking new ones. Importantly, the concept may also create a powerful discursive repertoire that can be used to advocate more forcefully the moral conduct of a more responsive, accountable international community. Short of humanitarian intervention, RtoP has the potential to contribute to, or at least provide a conceptual basis for, smaller and less controversial measures that respond to (threats of ) mass atrocities. Several contributions to this book have identified such measures, for instance in the form of intervention based on invitation from parties that rebel against a repressive regime24 and in response to incitement.25

J uli a H o ff m an n and A ndré N o llka em per / 358

However, the strongest claim to innovation and identity is not to be found in any particular strategy, but rather in the totality and interaction of strategies. As noted by Luck: ‘By combining established elements in fresh combinations, the whole has the potential to be much more than the sum of its parts.’26 RtoP seeks to connect the various pieces of the puzzle that arise when mass atrocities threaten to occur. Indeed, in terms of the three pillars approach of the 2009 UN Secretary-General Report (UNSG Report), there is no formal or temporal separation between the pillars of prevention by the territorial state, assistance and intervention. At any point in time, the relevant actors are to consider every option and how they interrelate.

1.2 Implications for Research

The absence of a distinct identity implies that methodologically, any attempt to say that RtoP has or has not worked in a specific context is next to impossible. Wouters, De Man and Vincent’s note that ‘it is likely that the intervention in Libya would have been authorised, even in the absence of the RtoP doctrine’.27 For those only concerned with the actual outcome, that may not be particularly disconcerting, but for an academic inquiry into the meaning, role and effect of RtoP, this is a troubling conclusion. It will be challenging to find ways of investigating when a specific policy decision and outcome could validly be attributed to RtoP. Is a mention of the concept in relevant resolutions a sufficient indication of its impact? Or could the absence of its invocation in fact be interpreted as a success, given RtoP’s emphasis on (silent) diplomatic measures of prevention and support of states in order to live up to their protection tasks? Though the odds may be against it from a conceptual perspective, the question of whether RtoP has a distinct and separate identity also is an empirical question. Undertaking empirical research into how the principle of RtoP has or has not been relied upon by relevant actors in particular conflict situations could make an important contribution to existing knowledge. Information on claims and counterclaims would shed more light on its independent meaning, as a political but potentially also as a legal principle. Two related areas would benefit from further research. The first concerns the question of what specific measures have been implemented and tried for the protection of people from mass atrocities. What forms of operationalisation, if any, are unique for RtoP? Is it possible to relate any particular responses to the principle of RtoP? This question will require studies that compare the practice before and after the emergence of RtoP as a concept on the world stage, and within the latter category the practice that was expressly tied to RtoP to the practice were relevant actors did not make a connection to RtoP. Operationalisation is not something that can be theorised or decided upon during negotiations, but will have to be inferred first and foremost something from actual practice. Second, specifically with regard to its potential as a comprehensive approach, the again largely empirical question is to what extent this potential has made the tran-

C on clu d i n g Ob s er vatio ns / 359

sition from the pages of the UNSG Report to actual political practice. Wouters, De Man and Vincent point out in this volume that this conceptual comprehensiveness has hardly been translated into the strategies of organisations such as the European Union (EU) that seek to interpret and implement the concept in practice.28 The question in empirical terms is whether it can be determined whether RtoP can be correlated to a more comprehensive policy-making, and, in conceptual terms, whether it provides a coherent and sound basis for such comprehensive policies.

2 Legalisation

2.1 Developments

The principle of RtoP is mainly seen as a political principle. But, as indicated above, it is an understatement and indeed partly incorrect to say that RtoP is only a political principle. From the moment RtoP appeared on the international stage, and certainly after its inclusion in the WSO Document and its restriction to the ‘four core crimes’, at its core, RtoP has obvious legal dimensions. Indeed, it can be argued that the change from the original International Commission on Intervention and State Sovereignty (ICCIS) Report to the WSO Document resulted in a distinct legalisation of the principle. Precisely for the four crimes to which RtoP applies, both treaties and customary international law place affirmative obligations to protect on the territorial state. In any case, the Genocide Convention, and arguably human rights law and a purposive interpretation of Common Article 1 of the Geneva Conventions, would furthermore create obligations for third states to ensure that no other state commits genocide, war crimes or crimes against humanity.29 In effect, the equation of the scope of RtoP with these crimes has indisputably brought it within a legal regime. The fact that RtoP is largely embedded in existing international law does not render the newly emerged principle superfluous. In fact, one of the reasons for its emergence may be the fact that existing legal obligations in this area have been very unevenly and imperfectly implemented. Had the regime of international law induced the effective protection of the peoples of Rwanda, Yugoslavia or Sudan, it is unlikely that the debate on RtoP would ever have taken place. The political support that RtoP has been able to generate from some states, at least, holds the promise of strengthening political support for and increasing pressure to ensure better implementation. As noted by Jørgensen, RtoP and the responsibility regime under the law of international responsibility ‘are potentially mutually reinforcing, because RtoP gives greater moral and political force to State obligations, and the mandatory legal nature of those obligations in turn gives greater force and legitimacy to the reaction under RtoP’.30 From a legal point of view, this may be the greatest contribution of RtoP. What it may have brought, then, is not so much a reaffirmation of the law, but rather an added political impetus to have the law applied, and to provide a set of policy

J uli a H o ff m an n and A ndré N o llka em per / 360

instruments, such as early warning and preventive deployment, that helps to implement these obligations. A margin of appreciation and down-to-earth pragmatism may always remain a necessary ingredient when it comes to the conduct of politics in regard to mass atrocities. Yet, RtoP may help to enforce the normative acknowledgement that outright arbitrariness and the cynicism of selective compassion with victims of state-sponsored or tolerated mass atrocity is no longer a policy option. As Jørgensen emphasises in her contribution in this volume: Responsibility is essentially about promises, as the roots of the word mean to ‘promise something back’. This meaning underlies the notions of responsibility to protect, State responsibility, responsibility of international organisations and responsibility of the territorial State. The responsibility regime in respect of serious breaches offers some legal tools based on States promising something back as members of the international community which could in turn help to ensure the fulfilment of the promise embodied in RtoP.31

Beyond the political support for existing state obligations to protect, RtoP can in addition lead to further legalisation. This holds in particular for the Security Council, which is bound to exercise a key role in the normative system of RtoP, but which has thus far been assumed to have full discretion in determining whether and how to act. A strong argument can be made that the obligations of both the UN and its member states to act in case of mass atrocities imply that the Security Council no longer has full discretion to decide whether or not to respond to such situations. Of particular relevance in this regard are the procedural obligations falling on the members of the Security Council to justify their vote.32 So, just as RtoP has led to a strengthened political impetus to make legal obligations work, it may lead to a strengthened effort to ground the political powers in law to incrementally remove the arbitrariness of their use. At the same time, the very example of the Security Council also shows that there are limits to the possible legalisation of RtoP. Peters observes that the potential consequences of RtoP, if endorsed as a legal principle, are rather serious. Spelling out the consequences to their very end is apt to deter states from accepting RtoP as a hard legal obligation. The prospects of endless chains of legal obligations might, in the final analysis, turn out to be counter-productive for alleviating the plight of endangered populations.33 The larger point here is that while the limitation of RtoP to the four crimes connects the principle to a well-established body of international law, states have always aimed at keeping control over the implementation and enforcement of that body of law, and it remains to be seen whether RtoP will make much of a difference in this respect.

C on clu d i n g Ob s er vatio ns / 361

2.2 Implications for Research

While the general contours are thus relatively clear (RtoP builds on and confirms law, while leaving ample room for political decision-making at the level of implementation), several questions can benefit from further research. Even though there is a number of possible sources to guide interpretation of the legal content and scope of RtoP, as for example the jurisprudence of the International Court of Justice (ICJ) that has been analysed by Zyberi in this volume, there is a long list of legal uncertainties surrounding the concept of RtoP.34 While recognising the utility of flexibility, and the need for patience when developing international norms that can stand the test of time with sufficiently robust support of a diverse community of states, there is a number of legal issues concerning the content and scope of RtoP that remain controversial and that have not yet been sufficiently explored. One pertinent question is who are the beneficiaries of the obligations associated with RtoP, and who, under current legal norms and practices, are being left out of the regime of protection.35 Another area of research is whether the obligations to protect that rest on territorial states, traditionally seen as obligations of result, can be developed in the direction of obligations of conduct. This would be in line with the ICJ’s interpretation of the obligation to prevent genocide. Another question to be investigated is wether there are certain best practices that have proven to be essential elements of any strategy of protection and that should be considered as minimum elements of the obligation to protect. One example would be the control of media outlets that may result in incitement.36 Another area where the law remains relatively unsettled is the legal basis and scope of obligations of third states and regional organisations in responding to (threats of ) mass atrocities. The obligations of third states under the Geneva Conventions,37 the Genocide Convention38 and the law of state responsibility39 are rather unclear. While little will be gained from further scrutiny of the text, much may be gained from an assessment of whether and how such obligations have been invoked and relied upon in recent instances that are relevant from an RtoP perspective. This also holds for regional organisations, in particular the African Union (AU) and the EU, both of which have, to some extent, recognised the policy implications of RtoP. But the question whether this is – and is understood to be – a political choice or a legal obligation, and the scope and limits of such obligations remain wide open. One of the areas where this holds true concerns the use of non-forcible measures. Bilkova, referring to the issue of unilateral non-forcible measures, concedes that such measures are ‘fully compatible with [the RtoP] framework’ and could play a significant role in its implementation. Yet, she stresses, there first needs to be clarification of the legal basis of such measures and reflection on issues such as ‘whether they may derogate from international law and whether the resort to them constitutes a right or a duty’.40 Another highly relevant question is the role of invitations for support by local movements that rebel against regimes oppressing the population. When is recogni-

J uli a H o ff m an n and A ndré N o llka em per / 362

tion of such movements lawful and, in particular, are the actions of such movements in a position to legitimise intervention by military means that otherwise would be unlawful? Lieblich refers in this context to the ‘chaotic’ law of intervention upon invitation or consent of a party to such a conflict.41 Yet another set of questions relates to the ultimate objective of protection. If it is accepted that under the above-mentioned provisions, as well as under relevant Security Council resolutions (notably 1973(2011)) there is a legal obligation or mandate to protect populations, the question is what exactly the relevant actors must (and may) do to achieve that aim and, more in particular, when it can be said that the aim has been realised. Does a semi-permanent ceasefire qualify as protection, or is protection only achieved if the root causes of the problem (in the case of Libya the Gaddafi regime) are removed? The question is relevant particularly as it relates to the perceived threat of abuse of RtoP for ulterior motives (see below, section 3). This issue is directly related to the aftermath of an intervention. If (third-pillar) intervention leads to the overthrow of a regime that had been seen to cause mass atrocities, can the intervening actors at that time simply end their involvement? Or is it a (political, but also legal) consequence that these actors should take responsibility for the aftermath and be involved in a new cycle, from intervention to prevention? In other words: does the duty of protection ever end when conflict is considered to be cyclical?

3

Balancing responsibilities

3.1 Developments

The third main theme that emerges from the contributions to this book is the balance between the responsibilities of the territorial state on the one hand, and those of third states, international organisations and ‘the international community’ on the other. RtoP is a responsibility that is shared between various actors. However, the precise modalities of this sharing remain somewhat ambiguous. As noted by the representative of the Netherlands in the General Assembly: The World Summit of heads of State and Government that took place in 2005 ... consolidated a consensus that, in the true spirit of the Organisation’s founding fathers, laid down our shared moral responsibility to prevent the occurrence of conscience shocking mass atrocities: genocide, war crimes, ethnic cleansing and crimes against humanity.42

There is no question that the territorial state should take action first, and the UN should only take the lead if things go wrong. But how, exactly, responsibilities should be divided between the UN and regional organisations and between third states (who should save Darfur?) remains complex, and may prove to be the Achilles heel of the concept.

C on clu d i n g Ob s er vatio ns / 363

The first part of this balance may strike some as counterintuitive. The principle of RtoP has often been heralded for the role that it assigns to the international community. But it needs emphasis that the role of the international community is only a secondary one. The principle of RtoP puts primary responsibility for prevention firmly on the shoulders of the territorial state. Only if and when a state fails its population should other actors come into play. Even then, the main role of the international community is to support a state in living up to the responsibilities that comes with its claim to sovereignty. Some states indeed appear to read RtoP primarily in this supportive way.43 While this reading would be incomplete if it were to neglect the other side of the balance, it is important, because it may help bolster support for the principle among states that see it as a threat to their sovereignty. Indeed, the principle of RtoP does provide normative support for states that seek to resist the interventionist policies of the international community. The other side of the balance concerns the residual and complementary responsibility of the international community, in part through the second (assistance) pillar of the 2009 SG Report, but in particular through the taking of decisive measures by the UN Security Council by employing ‘the whole raft of tools available under Chapters VI, VII, and VIII of the Charter’.44 Many of the chapters in this volume have explored the ways and means through which the Security Council,45 regional organisations46 and individual states47 can and should assume responsibility if the territorial state fails to act. As long as such attempts fall short of coercion and the use of force, they are legally unproblematic.48 Yet in the past, more often than not, ‘target states’ have challenged such attempts as undue interference in their internal affairs. The principle of RtoP has made such challenges more problematic and less persuasive. As a result, often the discussion is no longer about the question of whether interference is allowed or not (RtoP has put that beyond controversy), but about the question of whether in any particular context there are sufficient indications to justify interference, thereby no longer leaving the matter to the territorial state. In this light, RtoP can be seen as one further contribution to the erosion of Article 2(7) of the UN Charter, which lays down the principle of non-intervention in the internal affairs of states.49 RtoP provides further legitimacy to interference in states’ internal affairs or, rather, changes our definition of what qualifies as interference and what is internal (and what is not). But this change is more political than legal; from a legal perspective, an attempt to induce a state to stop killing its population has never been qualified as intervention, as long as it was not pursued by coercion. One might think that the first accomplishment (strengthening powers of territorial states) and the second one (justifying interference) would cancel each other out, thus rendering them meaningless. But that would be a misunderstanding. The fact that the principle provides support on both sides of the normative spectrum forces and shapes a normative debate that is concerned with the substance of the roles of both the territorial state and third states, and with what actually is achieved.

J uli a H o ff m an n and A ndré N o llka em per / 364

The debate has been recast: it is no longer about sovereignty versus intervention, but about the protection that is to be offered by all relevant parties. There is one other consequence of the parallel justification of the roles of the territorial state and third states. RtoP necessarily leads to a factual inquiry into the events in a particular situation, and into what was and could be done by the territorial state. In this situation, a critical question is when and how the responsibility of the international community is actually triggered. A key mechanism is the role of early warning mechanisms.50 RtoP has led to the bolstering of early warning functions in regard to the four crimes. Both Special Advisors will play a key role in the assessment of when ‘national authorities are manifestly failing to protect their populations’, as stated in paragraph 139 of the WSO Document. The sharing of responsibilities by the territorial state and the international community inevitably raises questions of trust and fear of abuse on the side of (potential) target states of intervention and their allies. Sensitivities regarding the neo-imperialist ambitions of ‘the West’, ‘the North’ or, yet more generally, powerful states, still taint the debate on RtoP, trigger deeply-felt anxieties, and are sometimes manipulated as an excuse to justify exceptionalism and abusive uses of sovereignty by national elites. Indeed, as Swatek-Evenstein notes, there is a direct parallel with old theories of intervention on behalf of ‘civilised nations’: ‘The “agents” and methods of the theory of the intervention d’humanité and RtoP are remarkably similar, only the “international community” has replaced the “civilised” states and “humanity” is now cast as “responsibility” ’.51 Yet, as Welsh reminds us, a significant number of developing countries from Latin America and Africa joined the pro-RtoP coalition during negotiations over the WSO Document (including Argentina, Chile, Mexico, Peru, South Africa, Rwanda, Tanzania and Senegal), ‘making it impossible to portray the debate within the UN as solely “North vs. South” ’.52 It also is relevant that the request from the Arab League to establish a no-fly zone to protect civilians in Libya was critical to the passing of the first ‘RtoP resolution’: Security Council Resolution 1973.53 Moreover, while some states continue to oppose the concept, it is relevant to note, following Wouters, De Man and Vincent, that there is often a discernible chasm between what they term the ‘recalcitrance of many Southern and Asian state leaders’ when it comes to RtoP and the contrasting support that has built up among their populations.54 Here we may again see a parallel with the discourse surrounding the validity of a universal human rights regime: while the charge of cultural relativism is often put forth by governments with poor human rights records, the victims of abuses are usually much less likely to claim cultural exceptions when it comes to the realisation of human dignity. As to the danger of abuse and ‘ulterior motives’, there is the real danger of invoking RtoP, as may have been the case in Libya, as a guise for other ambitions. In particular with regard to the third pillar, many states are concerned about coercive action.55 As pointed out by Luck, ‘[h]istorical narratives matter in that regard: who invented and championed RtoP? Why? Whose interests and contributions does it

C on clu d i n g Ob s er vatio ns / 365

serve? Is RtoP about Rwanda or Iraq, power or principle? Who owns it and can it be universalised?’56

3.2 Implications for research

A core area for research will be to examine more closely the tipping point at which the international community assumes – or ought to assume – its part in protection. While each case will be individual and contexts will be decisive, such clarity may go some way towards preventing the fear of selectivity. Another set of questions relating to the balance of responsibilities is whether the possibility that the international community will intervene may in fact reduce the ambition of territorial states to carry out their share of the responsibility. A notable example is the transfer of cases by Uganda to the ICC in a situation where, so it appears, Uganda could have done much more. Complementarity was originally designed to boost states’ willingness to address issues, but we have actually witnessed a desire of certain states to ‘pass’ those issues to the ICC rather than engage in taking up their sovereign responsibility themselves.57 And finally, the question arises as to the end goal of the responsibility of the international community. Should it be satisfied when, at any given moment, mass atrocities have stopped? Or should it consider the root causes that may lead to renewed atrocities in the future? In this context, Goldhagen points us to the realisation that despite its enormity and seeming universality in human history, we still do not really understand the scope, magnitude and nature of genocide. Thus, we simplify and dismissively blame ‘ancient’ ethnic hatreds that ‘other’ people seem to have cultivated among themselves. Yet, he reminds us, large-scale mass murder is a systemic feature of modern states and the international system, and that is how we should begin to address it.58

4

Sharing within the international community

4.1 Developments

In addition to the question of the allocation of responsibilities between territorial and third states (or the international community), a critical question is how responsibilities are to be shared within the international community. This question arises in several ways. One concerns the relationship between the UNSC and regional organisations. Under the UN Charter, regional organisations can act, indeed at the same time as the Council itself, but the scope of action is narrowly circumscribed and limited by the Charter. The question is whether these limits will be reflected in practice. Abass rightly notes that: Africa has deliberately or inadvertently become the victim of the Security Council’s most profound inaction. Asking Africans to once again trust a body that has proved several times to be totally useless when their lives are at stake is thus like

J uli a H o ff m an n and A ndré N o llka em per / 366

squeezing a stone to yield water. Yet, the dictates of civilisation, the spirit of comity and the gargantuan privileges of camaraderie impel Africans to once again entrust the Security Council with the sacred responsibility to protect them from harm. In entertaining this request, however, Africans clearly reserve for themselves the right to go it alone, if and whenever they deem fit. This is, to be fair, a small price for the Security Council to pay for squandering its legitimacy.59

At the same time, the likelihood that the AU would be able to carry out the action necessary to implement RtoP in, say, Libya in the circumstances of early 2011 seems very slim, and it would be dependent on supportive action by the UN or other regional organisations such as NATO. The question of the allocation of responsibility also arises within the category of third states and regional organisations. It is one thing to argue, as Brollowski does, that ‘a purposive interpretation in accordance with the principle of effectiveness and the Vienna Convention on the Law of Treaties, undoubtedly leads to the conclusion that today, common Article 1 creates obligations for third States’.60 Nonetheless, this does not answer the question of which state or organisation is to act. In the ICISS Report, the appeal to the international community is a very general one, leaving us with an essentially unallocated responsibility to protect.61 It is a known phenomenon in social psychology that the more bystanders witness an incident that would require intervention to help a victim, the less likely bystanders feel an individual responsibility to act, and thus the less likely intervention becomes. A similar risk of inaction is engrained in the set-up of RtoP, which spreads responsibility to each state, individually as well as jointly. When everyone is responsible, no one is.62 In its jurisprudence, the ICJ has given certain indications for relevant criteria, in particular those of political influence and geographical proximity.63 These criteria can be particularly relevant not only for states, but also for the Security Council: if we accept that a third country that has influence over the state of the genocide is responsible to prevent, surely so does the Security Council, which must be presumed to have such influence over any state anywhere. In consequence, it could also be held responsible and, of course, accountable in case of failure. Yet, as Welsh notes, this and similar criteria have drawbacks, ‘making it impossible to establish a priori a general theory as to which should be applied in each case’. In particular, one could argue that ‘the intervening power is likely to have a particular agenda of its own (including partiality towards particular factions within the target state’s society) that would complicate its exercise of remedial responsibility’.64 Pattison eventually argues that the dominant criterion should be effectiveness – meaning that the bearer of remedial responsibility should be the agent that has the capacity to mount the most effective response.65 The fundamental idea is that an intervener’s effectiveness is the primary determinant of its legitimacy. Still, Welsh observes that ‘it is not clear in all cases whether local knowledge or Western capacity will translate into greater effectiveness’.66 Moreover, it could be

C on clu d i n g Ob s er vatio ns / 367

argued that those who cannot intervene today (for reasons of insufficient capacity) should exercise their moral duty in other ways (for example, by isolating the perpetrating state diplomatically, offering diplomatic support for action, or financing non-military assistance).67 Welsh, in congruence with Pattison’s argument, also argues that ‘the responsibility to protect – if it is to be an international responsibility – also demands concrete steps to develop greater capacity for intervention and a commitment to contribute to the costs of military action’.68

4.2 Implications for Research

Our knowledge and understanding about the way responsibilities to protect are, and should be, shared within the international community, remains fairly limited. A proper starting point for further research is the set of international obligations that permit and/or oblige third states and international organisations to respond to the crimes covered by RtoP. While to some extent these are fairly well established, for another part (notably the obligations under the law of international responsibility, that are part of the ‘progressive development of international law’) remain indeterminate. Particular relevant questions pertain to international organisations – which organisations are in fact under such obligations, taking into account the differences in objectives and competences? More insight into their scope under positive international law, but in particular in the direction of their development can gained from an examination of the practice of states, international organisations and other relevant actors – both in terms of their actual conduct, and in terms of the degree and way in which they are held to account if they do not live up to such obligations. However, the main research challenges in this area are normative, rather than empirical. If we are to differentiate between states that can be expected to or should respond to mass atrocities, the question is on what basis this is to be done. If all states are obliged to realise a certain objective, such as the protection of civilians against mass atrocities, does this impose on all states an obligation to take certain actions? And if not all states have such obligations, how is to be determined which states should act and which not? The moral criteria identified above are highly relevant in this context. These include effectiveness, or capacity. However, the scope of that criterion remains contested. If we accept effectiveness as decisive criterion is there any moral basis for expecting involvement of states to ensure that they can play an effective role? What is the time span within which this should be assessed? Moreover, the criterion needs to be considered in juxtaposition with other criteria, such as the legitimacy of the intervening actors. Fundamental research is also relevant on the transition of such moral criteria into the legal realm. What is the relationship between moral criteria of the type advanced by Pattison and legal criteria such as those formulated by the ICJ in the Genocide case? And through what processes can such moral criteria influence and shape the development of the law?

J uli a H o ff m an n and A ndré N o llka em per / 368

5

Looking Forward

At this moment, RtoP is situated at the intersection between theory and practice. The international community has journeyed from the theoretical and conceptual stages of RtoP development to a new stage that sees RtoP appearing in policy documents and practice. As noted by Luck, the principle, after all, is designed to change human behaviour. Therefore, it can only ultimately be judged by what does (not) occur in practice. The theories that support RtoP, be they legal, political or philosophical (many of which have been discussed in this volume), are a means to an end only, and not an end in themselves.69 The Security Council’s invocation of RtoP in the spring of 2011 in support of its decision to act on the situation of Libya70 signifies a key moment in this new stage. The case of Libya demonstrates that several aspects of RtoP are now firmly recognised, such as the fact that Libya was under a clear obligation to protect the civilians within its borders, and that its failure to protect civilians triggered the responsibility of other states – notably the Arab League and the UN, but also individual states such as France and the United States. The case of Libya may even be used to argue that RtoP has been instrumental in guiding the Security Council into action, as may be inferred from the Council’s reference to the principle in its resolutions on Libya. Yet, the case of Libya has also demonstrated that many difficult questions remain. For one thing, the case showed little of the comprehensive approach that has perhaps been the most heralded aspect of the principle of RtoP. The case of Libya was all about urgent reaction by intervention, while very little effort seems to have been made in terms of prevention. Until very recently, many states had been so involved with bringing Libya on board concerning their anti-terrorism policies that few could be bothered to look for – or merely register – signs that the state might turn against its own people. Little was put in place in terms of functioning early warning mechanisms, another important feature of RtoP. The case furthermore shows that while RtoP depends on a strong role for regional organisations, their ability to respond effectively without the Security Council is fairly limited and that, moreover, once the Council has acted, the room for the AU and the Arab League to act (for instance by brokering a ceasefire) is evidently curtailed if the Council prefers to continue with military attacks. There is also continuing ambiguity and controversy about the nature of protection, who is to be protected, how this is to be done and when the task of protection could be considered as completed – are we to be satisfied with the cessation of attacks or will regime change be a sine qua non? If so, are there and can there be requirements for the nature of an incoming new government? And what role should third parties play in the process of reconstruction and reconciliation? RtoP remains vulnerable to the critique that it can be used to cloak motives of regime change in the language of civilian protection. As Wouters, De Man and Vincent note, the EU’s motives in this regard remain murky and ‘seem to confirm

C on clu d i n g Ob s er vatio ns / 369

the impression that RtoP is once again being instrumentalised for political goals extraneous to the protection of civilians’ in order to bring about regime change. While the political motives as such may be justifiable, they continue to contribute to the commonly-held ‘suspicion that the RtoP references in the UNSC resolutions were used mainly as a pretext to overthrow a dictator that had long been a thorn in the side of the West, rather than as a real indication of a strong political willingness of the international community to come to the rescue of a suffering civilian population’.71 In the end, it is likely that a ‘successful’ intervention in Libya that would protect civilians would also help to remove the current regime from power. Indeed, it may be a necessary ingredient of any application of RtoP – after all, it seems hard to imagine intervening in a situation where a regime that is committing mass atrocity crimes is stopped and subsequently left in control of the very people it had targeted. Yet, the mutation of a civilian protection mission into an apparent regime change endeavour is likely to reinforce fears about RtoP as a threat to sovereignty. Importantly – and even despite the support of the Arab world for the military intervention in Libya – a perceived instrumentalisation of RtoP as a fig leaf for enforcing regime change within a larger Western policy framework will do little to bolster support among initially sceptical states. Many of these fears may be mitigated by seeing RtoP not (primarily) as an instrument for intervention by the West in other continents, but as a principle of mechanism for prevention and response at the regional level. As noted by Morada in the context of South-East Asia, a bottom-up strategy that focuses on domestic constituency-building around RtoP is therefore an important step in promoting the internalisation of the norm.72 The events in Libya in the spring of 2011 show that RtoP still has a long way to go to achieve this and thereby to achieve its potential. Partly as a result of these continuing ambiguities and controversies, furthering the path of RtoP will have to mean engaging with the legitimate concerns of states that fear selectivity and abuse and that will undoubtedly interpret and critically evaluate the Libyan example in this light. At the moment of writing, in Syria and Bahrain, scenarios are unfolding that might just as well be characterised as crimes against humanity that would trigger RtoP, while no action comparable to that in the Libyan case is being taken or even publicly considered. While it is clear that the UN (and NATO) is currently simply incapable of protecting all victims of all abuses, even those that reach the scale that would trigger RtoP, some form of transparency and predictability as to when action is and is not taken is necessary. This is not merely a matter of the academic preference for conceptual clarity, but a dire necessity to ensure the long-term credibility and legitimacy of responses in a spirit of what is now increasingly coming to be seen as a global responsibility towards human beings – wherever they happen to live.

J uli a H o ff m an n and A ndré N o llka em per / 370

Notes 1 Luck’s contribution in the present volume, at 39. 2 The added value of RtoP when it comes to this existing arsenal of measures has been questioned in this volume inter alia by Cuyckens and De Man’s contribution in the present volume, at 111-123. 3 Gionet’s contribution in the present volume, at 61-70. 4 Luck’s contribution in the present volume, at 39-46; Deng’s contribution in the present volume, at 337-346. 5 Peters’s contribution in the present volume, at 199-211. 6 Abass’s contribution in the present volume, at 213-236. 7 Bilkova’s contribution in the present volume, at 291-304. 8 Deng’s contribution in the present volume, at 337-346. 9 Luck’s contribution in the present volume, at 39-46. 10 Poli’s contribution in the present volume, at 71-81. 11 Cuyckens and De Man’s contribution in the present volume, at 111-123. 12 Brollowski’s contribution in the present volume, at 93-110. It should be added that, as admitted by the author herself, it is contested whether this indeed is the legal implication of article 1 of the Geneva Conventions, see ibid at 95. 13 Zyberi’s contribution in the present volume, at 305-317. 14 Jørgenson’s contribution in the present volume, at 125-138. 15 Kleffner’s contribution in the present volume, at 85-91. 16 Though in many respects, the addition of the fourth crime (ethnic cleansing) is odd, as this may not be subject to the same regime as war crimes, crimes against humanity and genocide, unless in a particular context, it itself is part of these categories; see Kleffner’s contribution in the present volume, at 87. 17 Amneus’s contribution in the present volume, at 157-171. 18 Luck’s contribution in the present volume, at 39-46. 19 Morada’s contribution in the present volume, at 241. 20 Amneus’s contribution in the present volume, at 157-171. 21 Swatek-Evenstein’s contribution in the present volume, at 47-59. 22 Goldhagen’s contribution in the present volume, at 353. 23 Deng’s contribution in the present volume, at 337-346. 24 Lieblich’s contribution in the present volume, at 139-154. 25 Hoffmann and Okany’s contribution in the present volume, at 319-336. 26 Luck’s contribution in the present volume, at 39. See also Advisory Council on International Affairs, ‘The Netherlands and the Responsibility to Protect: The Responsibility to Protect People from Mass Atrocities’ (No. 70, June 2010) . 27 Wouters, De Man and Vincent’s contribution in the present volume, at 254. 28 Ibid, at 247-270. 29 Brollowski’s contribution in the present volume, at 93-110. 30 Jørgensen’s contribution in the present volume, at 136. 31 Ibid, at 137. 32 Peters’s contribution in the present volume, at 199-211. 33 Ibid. 34 Zyberi’s contribution in the present volume, at 305-317. 35 Halbert’s contribution in the present volume, at 273-289. 36 Hoffmann and Okany’s contribution in the present volume, at 319-336.

C on clu d i n g Ob s er vatio ns / 371

37 Brollowski’s contribution in the present volume, at 93-110. 38 Zyberi’s contribution in this volume, at 310. 39 Jørgenson’s contribution in the present volume, at 125-138. 40 Bílková’s contribution in the present volume, at 300. 41 Lieblich’s contribution in the present volume, at 140. 42 Official Records of the 97th Plenary Meeting of the UNGA, New York, 23 July 2009, UN Doc. A/63/PV.97, 26. 43 Morada’s contribution in the present volume, at 237-246. 44 Luck’s contribution in the present volume, at 42. 45 Peters’s contribution in the present volume, at 199-211. 46 Abass’s contribution in the present volume, at 213-236; Morada’s contribution in the present volume, at 237-246; Wouters et al’s contribution in the present volume, at 247-270. 47 Bílková’s contribution in the present volume, at 291-304; Jorgenson’s contribution in the present volume, at 125-138. 48 Bílková’s contribution in the present volume, at 291-304. 49 Advisory Council on International Affairs, ‘The Netherlands and the Responsibility to Protect’. 50 Luck’s contribution in the present volume, at 41-44; Deng’s contribution in the present volume, at 337-346. 51 Swatek-Evenstein’s contribution in the present volume, at 54. 52 Welsh’s contribution in the present volume, at 189. 53 Ibid. 54 Wouters, De Man and Vincent’s contribution in the present volume, at 258. 55 Jamaica (speaking on behalf of CARICOM), Ecuador and Cameroon. See International Coalition for the Responsibility to Protect (ICRtoP), ‘Report on the General Assembly Plenary Debate on the Responsibiluity to Protect’ (15 September 2009) 7 . 56 Luck’s contribution in the present volume, at 40. 57 S Nouwen and W Werner. ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’ (2010) European Journal of International Law, 941. 58 Goldhagen’s contribution in the present volume, at 347. 59 Abass’s contribution in the present volume, at 232. 60 Brollowski’s contribution in the present volume, at 103. 61 Welsh’s contribution in the present volume, at 190. 62 Ibid. 63 Zyberi’s contribution in the present volume, at 312. 64 Welsh’s contribution in the present volume, at 190. 65 Pattison’s contribution in the present volume, at 310. 66 Welsh’s contribution in the present volume, at 190. 67 Ibid. 68 Ibid. 69 Luck’s contribution in the present volume, at 39. 70 UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970/2011, followed by UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973/2011. 71 Wouters, De Man and Vincent’s contribution in the present volume, at 263. 72 Morada’s contribution in the present volume, at 245.

List of Contributors

Ademola Abass joined the UNU Institute on Comparative Regional Integration Studies (UNU-CRIS) as a Research Fellow in Peace and Security on 1 July 2010. He is also the Head of Peace and Security Programme. He was formerly Professor of International Law and Organisation at Brunel University in West London. He was the African Union’s first expert on regional mechanisms and also served as the European Commission’s expert on capacity building for African regional organisations amongst others. He has previously taught at several British universities, holds a Ph.D. in International Law and was educated at the Universities of Lagos, Cambridge and Nottingham. He would like to thank intern and research assistent, Leonie Maes. Diana Amnéus is a Senior Researcher at the Raoul Wallenberg Institute of Human Right and Humanitarian Law. She previously conducted her doctoral studies and taught in international law and human rights at the Faculty of Law at Stockholm University. She is a member of the Swedish Branch of the International Law Association and the Board of the Swedish Association for International Humanitarian Law (SFIHR). Furthermore, she has working experience from the Ministry of Foreign Affairs of Sweden, the Swedish Red Cross and the United Nations High Commissioner for Refugees in Ankara. Veronika Bílková is a Diploma in International Law (DIL) candidate at the University of Cambridge, Lecturer at the Department of International Law of the Law Faculty of the Charles University in Prague and Researcher at the Institute of International Relations in Prague. Hanna Brollowski is a Doctoral candidate at the Faculty of Law of the University of Amsterdam and a Junior Researcher in the International Humanitarian Law/ International Criminal Law Department at the T.M.C Asser Instituut in The Hague. She holds a LL.M degree in International Law and the Law of International Organisation with a Specialisation in Human Rights from the University of Groningen and a MSc degree in International Politics and Human Rights from the University of Glasgow. She previously worked as a Researcher for the International Committee of the Red Cross and completed an internship at the International Criminal Tribunal for Rwanda.

Re s pons i b i li t y t o Pr o tect / 374

Hanne Cuyckens is a Ph.D. candidate at the Institute for International Law at the University of Leuven and is Junior Member of the Leuven Centre for Global Governance Studies. Philip De Man is a Ph.D fellow of the Research Foundation – Flanders (Aspirant FWO – Vlaanderen), associated with the Institute for International Law at the University of Leuven and the Leuven Centre for Global Governance Studies. He has previously worked with the United Nations and the International Criminal Tribunal for the former Yugoslavia. He has published in various fields of international and European law and is currently co-editing a forthcoming handbook on international humanitarian law. His doctoral thesis deals with the use of orbital slots by satellites in outer space. Francis M. Deng was appointed by UN Secretary-General Ban Ki-moon as his Special Adviser on the Prevention of Genocide in May 2007. He also served as Representative of the Secretary-General on Internally Displaced Persons from 1992 to 2004, and as Human Rights Officer in the UN Secretariat from 1967 to 1972. He was Ambassador of Sudan to Canada, the Nordic countries and the United States, and Sudan’s Minister of State for Foreign Affairs. He holds an LL.B (Honours) from Khartoum University and an LL.M. and a J.S.D. from Yale Law School, and has authored and edited over 30 books. Marc Alexander C. Gionet is the Director of the Atlantic Human Rights Research and Development Centre at St. Thomas University where he also lectures within the undergraduate human rights programme. He currently teaches courses on Humanitarian Law, NGOs and Human Rights and Terrorism and Human Rights. Daniel Jonah Goldhagen is author of the book Worse Than War: Genocide, Eliminationism, and the Ongoing Assault on Humanity. The film Worse than War is based on this work. His search for understanding why genocides take place, started off with the Holocaust, which resulted in, amongst others, his book Hitler’s Willing Executioners: Ordinary Germans and the Holocaust. Formerly a political science professor at Harvard University, he currently dedicates his time to writing and speaking on issues such as genocide and how to prevent it. His work can be read at http://goldhagen.com/. Jennifer D. Halbert is a Ph.D. candidate in Public International Law at Swansea University. Julia Hoffmann is Assistant Professor of Media, Conflict and Peace at the University for Peace in Costa Rica. Prior to joining the University for Peace, she was a Lecturer at the University of Amsterdam where she taught courses on inter alia

L is t o f C on t r i b u tors / 375

conflict and media, international communication and human rights. She also works as a free lance consultant for a number of human rights organisations. Nina H.B. Jørgensen is an Associate Professor in the Faculty of Law at the Chinese University of Hong Kong. She previously worked for eight years in different capacities (prosecution, judges’ chambers, defence) at the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Tribunals for the former Yugoslavia and Rwanda. Prior to that she was a Research Fellow at the University of Leiden. She has a D.Phil. from the University of Oxford and is a qualified barrister. Jann K. Kleffner is Head of the International Law Centre and Associate Professor of International Law at the Swedish National Defence College. He obtained LL.M. and Ph.D. degrees in International Law from the University of Amsterdam and has served as expert and consultant for a number of intergovernmental and non-governmental organisations, including the United Nations, the International Commission for the Red Cross, the International Criminal Court and the International Criminal Tribunal for the former Yugoslavia. He has also advised law firms in the areas of the law of armed conflict and international criminal law, in addition to fulfilling a number of editorial functions. Eliav Lieblich is a JSD (Doctor of Juridical Science) candidate at Columbia Law School and a visiting scholar at the Cegla Center for Interdisciplinary Study of the Law at Tel Aviv University. He is also a Doctoral fellow at the Institute for National Security Studies at Tel Aviv University. He was Co-director of the Clinic for Legal Aid in Conflict Areas and Co-director of the Human Rights Externship Program at the Hebrew University of Jerusalem Faculty of Law. He also served as a Law Clerk at the Supreme Court of Israel. Edward C. Luck currently serves as the United Nations Secretary-General’s Special Adviser, in which capacity he primarily focuses on the Responsibility to Protect. He is also Senior Vice President for Research and Programs at the International Peace Institute. Previously, he was Professor of Practice in International and Public Affairs and Director of the Center on International Organisation at Columbia University. A past President and CEO of the United Nations Association of the USA, he has served the UN in a variety of capacities, taught at Princeton and Sciences-Po (Paris), and founded a research centre co-sponsored by the NYU School of Law and Princeton’s Woodrow Wilson School. Noel M. Morada is Executive Director at the Asia Pacific Centre for the Responsibility to Protect of the University of Queensland. Previously, he was Professor of Political Science at the University of the Philippines Diliman and a Distinguished Visiting Professor at the School of Advanced International Studies (SAIS) of Johns

Re s pons i b i li t y t o Pr o tect / 376

Hopkins University. He has published works on the Responsibility to Protect in Southeast Asia, specifically the roadmap to promoting and building a constituency in the region, as well as the challenges in doing so under the existing ASEAN Charter. André Nollkaemper is Professor of Public International Law and Vice-Dean for Research at the Faculty of Law of the University of Amsterdam. He is also (external) Advisor to the Minister of Foreign Affairs of the Netherlands. He is Member of the Board of the European Society of International Law. He has established the Amsterdam Center for International Law (ACIL), which ranks amongst the top institutions for international law in the Netherlands. His practical experience includes cases before the European Court on Human Rights, the Special Court for Sierra Leone, the International Criminal Tribunal for the former Yugoslavia, the Extraordinary Chambers in the Courts of Cambodia, courts of the Netherlands and consultancy for a variety of international and national organisations. Amaka Okany is Ph.D. candidate and Researcher at the Department of Public International and European Law of the University of Amsterdam. She was Resident Visiting Fellow at the Lauterpacht Centre for International Law of University of Cambridge. She has worked as a Law Clerk at the Law Offices of C.H.C. Nwanya in Enugu, Nigeria as well as the Office of the Prosecution of the International Criminal Tribunal for the former Yugoslavia and as Lecturer in Public International Law at the University of Amsterdam. James Pattison is a Lecturer in Politics at the University of Manchester. His research interests include humanitarian intervention, the Responsibility to Protect, the ethics of war, and the use of private military companies. His Ph.D. on humanitarian intervention was awarded the Sir Ernest Barker Prize by the Political Studies Association in 2008. His book, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene?, was published in 2010 and was awarded a ‘Notable Book Award’ by the International Studies Association (International Ethics Section). He is currently working on a second monograph, provisionally entitled The Morality of Private War. Anne Peters is Professor of Public International Law and Dean of Research of the Law Faculty at the University of Basel, where she previously held the position of Dean. She was also a visiting professor at Sciences-Po (Paris). Prior to taking up the position at Basel University, she was Assistant Professor at the Walther-SchückingInstitute of Public International Law at the Christian Albrechts University Kiel, where she obtained the Habilitation-qualification on the basis of her HabilitationThesis “Elemente einer Theorie der Verfassung Europas” (Elements of a Theory of the Constitution of Europe).

L is t o f C on t r i b u tors / 377

Ludovica Poli holds a Ph.D. in Public International Law from the University of Milan and is a Research Fellow at the University of Turin. Her first book focuses on RtoP and the role of regional organisations in Africa (‘La responsabilità di proteggere e le organizzazioni internazionali regionali. Nuove prospettive dal continente africano’, forthcoming 2011). Serena Sharma is Co-Investigator on the Responsibility to Prevent project and Research Fellow at Wolfson College in Oxford. She was recently appointed as the United Nations Association (UK) Special Advisor on the Responsibility to Protect. She holds a Ph.D. in International Relations and a Masters in Human Rights from the London School of Economics and Political Science (LSE). She also holds a B.A. in International Relations from the University of British Columbia. Mark Swatek-Evenstein is a lawyer and author of Geschichte der ‘Humanitarian Intervention’. Marie Vincent is Project Manager at the Madariaga – College of Europe Foundation. She has been contributing to the Foundation’s conflict prevention activities, focusing more particularly on the Programme for Prevention of Genocide and Mass Atrocities. Marie holds a B.A. in History and Politics from the University of Kent at Canterbury and a M.A. in South-East European Studies from the School of Slavonic and Eastern European Studies at University College London. Jennifer M. Welsh is Professor in International Relations at the University of Oxford and a Fellow of Somerville College. She is a former Jean Monnet Fellow of the European University Institute in Florence, and was a Cadieux Research Fellow in the Policy Planning Staff of the Canadian Department of Foreign Affairs. She has taught international relations at the University of Toronto, McGill University, and the Central European University (Prague). She is the author, co-author, and editor of several books and articles on international relations. Jan Wouters is Professor of International Law and International Organisations, Jean Monnet Chair Ad Personam EU and Global Governance and Director of the Leuven Centre for Global Governance Studies and Institute for International Law at the University of Leuven. He is Visiting Professor at the College of Europe, President of the Flemish Foreign Affairs Council and Of Counsel at Linklaters. He is member of the Royal Flemish Academy of Belgium for Sciences and Arts. He taught at the Universities of Antwerp and Maastricht, was Visiting Professor at Liège and Kyushu University and Référendaire at the European Court of Justice. Gentian Zyberi carried out his Ph.D. research at the Netherlands Institute of Human Rights at Utrecht University on the contribution of the International Court of Justice (ICJ) to human rights and humanitarian law. For a number of years

Re s pons i b i li t y t o Pr o tect / 378

he worked as Lecturer and Researcher on international law at Utrecht University. His practice of international law includes serving as Legal Adviser and Coordinator of the Albanian legal team in the Kosovo case before the ICJ. From November 2004, he has also worked for the Defense in two cases before the International Criminal Tribunal for the former Yugoslavia. His areas of interest include human rights, humanitarian law and international criminal law.

General Index

Afghanistan 76, 174 African Union 17, 27, 40, 76, 145, 173, 213 et seq, 252, 345, 352, 361 Ezulwini Consensus 22, 76, 215, 218, 219-221, 226 ASEAN 22, 237 et seq, 258, 357 Asia Pacific Centre for the Responsibility to Protect 242, 246 Aut dedere, aut iudicare 310, 312 Bosnia and Herzegovina 9, 114, 161, 192, 248, 310, 311, 316, 322, 330, 347, 352 Burma see Myanmar Cambodia 39, 238, 239, 241-244, 319, 347, 349 Canada 20, 61 et seq, 294, 356 China 74, 75, 148, 163, 239, 258, 262 Common but Differentiated Responsibilities 99 Congo 162, 193, 259, 274, 279, 314 Cote d’Ivoire 193, 253, 282 Crimes against humanity 14, 15, 19, 20, 65, 77, 85-89, 94, 103, 112-114, 119, 125, 126, 128, 136, 138, 145, 148, 158, 160, 174, 199, 214, 217, 225, 227, 241, 243, 135, 147, 250, 254, 257, 259, 261, 276, 280, 281, 283, 291, 297, 305, 307309, 311, 323, 359, 362, 369 Customary International Law 21, 54, 76, 77, 88, 97, 99, 102, 126, 131, 132, 158, 159, 161, 163-165, 200, 230, 279, 292, 296, 297, 308, 309 Darfur 13, 18, 22, 54, 66, 161, 191, 215, 226, 227, 232, 274, 279, 296, 314, 338, 347, 348, 349, 350, 363

East Timor 161, 192, 241 ECOWAS 40, 145, 163, 221, 223, 224, 226, 252, 257, 258, 293 Erga omnes obligations 126, 136, 206, 297, 298, 308, 309, 312 Ethnic cleansing 14, 15, 19, 20, 77, 85-87, 89, 94, 100, 103, 112, 113, 119, 125, 126, 148, 160, 163, 174, 175, 186, 199, 214, 217, 219, 225, 240, 247, 250, 259, 261, 274, 276, 280, 281, 291, 297, 305, 307, 308, 309, 311, 323, 342, 343, 362 European Court of Human Rights 324 European Union 9, 18, 19, 20, 23, 28, 61, 75, 96, 112, 114-119, 173, 179, 182, 238, 247 et seq, 292, 293, 359, 361, 368 EU Battlegroups 182 Genocide 13, 14, 15, 18-20, 23, 24, 39, 41, 43, 44, 47, 61, 77, 85-89, 94, 96, 97, 100, 103, 112-114, 119, 120, 125, 126, 128, 133, 134, 145, 148, 158, 160, 166, 168, 174, 175, 199, 201, 202, 204, 214, 217, 219, 220, 222, 225, 227, 240, 241, 243-245, 250, 252, 257, 259, 261, 291-293, 296, 297, 305, 307-314, 319 et seq, 337 et seq, 37 et seq, 357, 359, 361, 362, 365-367 Guinea 17, 221, 282, 293 Hague Conventions 215 Haiti 143, 144 Human Rights 9, 13, 14, 16, 18, 19, 23, 28, 30, 33, 40, 44, 48, 49, 61, 62, 71, 73, 76, 77, 94, 96, 97, 101, 111, 116-118, 120, 129, 131, 135, 147, 157, 160, 175, 176, 178, 186, 188, 189, 191, 200, 201,

Re s pons i b i li t y t o Pr o tect / 380

204, 209, 216, 220, 224, 230, 238-242, 244, 245, 253, 255, 260-262, 277, 278, 283, 292-295, 299, 305, 306, 308-311, 314, 316, 320, 322-324, 328, 339, 340, 343, 346, 356, 359, 364 Right to self-determination 128, 143, 161, 275, 277, 278 Human Rights Council 147, 253, 260, 346 Humanitarian Intervention 13, 14, 19, 21, 22, 25, 40, 47-54, 120, 157 et seq, 173 et seq, 185 et seq, 213-217, 223, 225227, 230, 231, 248, 257, 294 ICC 33, 64, 88, 136, 148, 199, 241, 245, 325, 350, 351, 356, 365 ICJ 18, 23, 96, 97, 101, 113, 131-134, 142, 164, 204, 214, 305-308, 311, 313, 314, 322, 328, 330, 361, 366 ICTR 325-327 ICTY 200, 313, 325, 352 International armed conflicts 87, 88, 143, 150, 309 International Criminal Law 86, 87, 89, 113, 114, 280, 283, 324, 325, 327 International Humanitarian Law 18, 64, 72, 73, 76, 77, 88, 94, 96, 98-100, 102, 125, 128, 132, 142, 147, 157, 163, 178, 180, 202, 219, 240, 254, 255, 273, 276, 279, 308, 309, 314, 356, 359 International Military Tribunal see Nuremberg Trials Iraq 40, 67, 129, 133, 134, 144, 164, 174, 223, 349, 365 Jus ad bellum see Use of force Jus cogens 21, 102, 126, 127, 143, 146, 148, 202, 297, 298, 312, 316 Jus in bello see International Humanitarian Law Just War theory 48, 141, 159 Kenya 16, 17, 19, 22, 27 et seq, 215, 226, 235, 252, 274, 279, 293, 320 Kosovo 13, 53, 61, 102, 159, 163, 178, 181, 187, 204, 214, 215, 223, 259

Kyrgyzstan 17, 281 League of Arab States 253, 254, 263 Liberia 13, 163, 221, 223, 224, 226, 252 Libya 9, 15, 16, 21, 23, 25, 43, 44, 68, 134, 136, 140, 147, 148, 150, 160, 185, 189, 192, 193, 222, 253, 254, 255, 258, 259, 262-264, 356, 358, 364, 366, 368, 369 Myanmar 20, 86, 238-241, 261, 274, 279, 280, 292, 293, 357 NATO 13, 53, 67, 88, 96, 102, 159, 163, 164, 173, 178, 179, 181, 185, 186, 192, 214, 215, 222, 223, 230, 241, 352, 356, 366, 369 Nazi Germany 319, 321 Nuremberg Trials 47, 325 OAS 258, 294 OSCE 252, 257, 258 PMSCs 173, 179, 180 Protection of Civilians (PoC) 20, 71-75, 77, 78 Russia 48, 52, 74, 163, 262, 275 Russia-Georgia conflict 275 Rwanda 9, 13, 14, 27, 28, 39, 40, 44, 61, 65, 71, 161, 174, 175, 186, 189, 190, 193, 215, 216, 219, 227, 232, 248, 274, 281, 296, 311, 319, 321, 325, 327, 329, 330, 338 Serbia and Montenegro 114, 186, 214, 215, 223, 312, 313, 322, 349 Sierra Leone 13, 42, 221, 224, 226, 275 Somalia 62, 71, 144, 161, 216, 231, 291, 331, 344 Srebrenica 9, 13, 39, 61, 65, 114, 216, 311, 312, 321 State Responsibility 21, 89, 113, 125, 126, 134, 137, 201, 202, 204, 205, 206, 307, 312, 345, 360, 361 for inaction 205-207 State Sovereignty 14, 20, 61, 65, 72, 74, 75, 240, 245, 247, 249, 257 Sudan 9, 17, 44, 47, 54, 66, 160, 226, 292, 314, 338, 348, 349, 359 Terrorism 201, 239, 368

g ener al i nd ex / 381

Uganda 136, 213, 223, 292, 349, 365 United Nations 140, 173, 214, 255, 163, 291, 294, 305, 311, 319, 329, 337, 350 United Nations General Assembly 13, 15, 27, 40, 41, 44, 65, 72, 74, 76, 96, 112, 118, 134, 135, 158, 160, 162, 189, 199, 204, 206, 214, 219, 240, 243, 247, 250, 251, 253, 259, 260, 305, 323, 346, 362 United Nations Preventive Deployment Force 250 United Nations Security Council 9, 13, 14, 16-18, 20-22, 40, 41, 43-45, 66, 71 et seq, 139, 140, 144-150, 157-170, 173-175, 177, 181, 185, 186, 189, 191194, 199-208, 213, 217, 219, 220, 222, 227, 228, 247, 249, 250, 252-254, 256,

261, 263, 264, 291-295, 305, 329, 330, 345, 356, 357 United States 53, 54, 62, 187, 276, 292, 330, 351-353, 368 Use of Force 14, 21, 40, 41, 42, 49, 50, 53, 76, 102, 116, 139-142, 148, 149, 157-160-165, 177, 186, 191, 192, 216, 218-221, 223, 224, 230, 231, 249, 256, 257-258, 278, 294, 295, 306, 363 War crimes 14, 15, 16, 19, 20, 77, 85-89, 91, 94, 100, 103, 105, 112-114, 119, 125, 126, 145, 148, 160, 174, 175, 199, 214, 217, 222, 225, 227, 247, 250, 257, 259, 261, 265, 267, 274, 276, 377, 279, 291, 394, 297, 305, 307, 308, 309, 311, 325, 359, 362

Index of Treaties and Other International Documents 1899 and 1907 Hague Conventions 107, 215 1969 Vienna Convention on the Law of Treaties 94, 95, 103, 148, 161, 203, 205, 366 2001 International Commission on Intervention and State Sovereignty (ICISS) Report 14, 15, 16, 18, 40, 41, 42, 47, 48, 49, 51-53, 73, 76, 77, 85, 89, 112, 113, 118, 139, 144, 158, 159, 162, 187, 189, 190, 192, 199, 203, 216, 217, 220, 221, 227, 229, 231, 247-250, 253, 258, 273, 294, 323, 366 2004 Report of the High-Level Panel on Threats, Challenges and Change 73, 85, 112, 159, 204, 218, 229 2005 Secretary General ‘In Larger Freedom’ Report 40, 85, 112, 159, 274, 295 2005 UN World Summit Outcome Document 14, 15, 17, 22, 23, 41, 42, 47, 74, 76, 77, 85, 11-113, 119, 120, 125, 139, 144, 148, 157-160, 185, 189, 190, 192, 216, 217, 220, 221, 226, 227, 229, 230, 240, 245, 247, 250, 252-255, 257-259, 260, 261, 274-276, 278, 291, 291, 294, 295, 300, 205, 256, 357, 359, 365 2009 Secretary General ‘Implementing the Responsibility to Protect’ Report 15, 19, 158, 160, 186, 191, 274, 277 2010 Secretary General ‘Early Warning, Assessment and the Responsibility to Protect’ Report 41, 76, 118, 160, 253 Constitutive Act of the African Union 16, 164, 215, 221-227, 229

Protocol Relating to the Establishment of the Peace and Security Council of the African Union 145, 149, 227-229 Draft Articles on Responsibility of States for Internationally Wrongful Acts 21, 126-128, 131-133, 135, 136, 142, 148, 149 Draft Articles on the Responsibility of International Organizations 21, 126, 127, 130, 133, 135, 136, 137, 202, 206 ECOWAS Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-Keeping and Security 145, 164 European Convention on Human Rights 324 General Assembly Resolutions 1970 Declaration on Principles of International Law Friendly Relations and Co-Operation among States 102, 131 1974 Definition of Aggression 142, 145, 149 1950 Uniting for Peace Resolution 162 Geneva Conventions 20, 89, 93 et seq, 114, 132, 142, 276, 279, 296, 308, 309, 361 Genocide Convention 16, 18, 87, 97, 113, 114, 132, 190, 241, 297, 310-313, 320, 322, 323, 325, 328, 350, 356, 359, 361 ICC Statute 88, 199, 325 International Covenant on Civil and Politi-

Re s pons i b i li t y t o Pr o tect / 384

cal Rights 16, 277, 324 International Covenant on Economic, Social and Cultural Rights 16, 97, 277 Security Council Resolutions 681 (1990) 96 554 (1984) 129 418 (1977) 133 218 (1965) 133 662 (1990) 134 1973 (2011) 9, 15, 16, 44, 160, 185, 189, 253, 254, 258, 262, 263, 356, 362, 364 1970 (2011) 9, 15, 16, 44, 68, 136, 147, 160, 192, 253, 254, 263, 368 688 (1991) 164 770 (1992) 161 816 (1993) 161 836 (1993) 161

794 (1992) 161 814 (1993) 161 837 (1993) 161 929 (1994) 161 1264 (1999) 161 1706 (2006) 44, 135, 161 1161 (1998) 330 Treaty of the European Union (TEU) 117 UN Charter 13-14, 16, 22, 23, 41, 42, 48, 72, 76, 93, 100, 101, 116, 131, 132, 140143, 146, 147, 149, 158, 159, 161-165, 186, 191, 200-205, 208, 213, 217, 220222, 228-230, 232, 240, 247-250, 252, 254-257, 275, 291, 294, 305, 307, 311, 313, 363, 365 Universal Declaration of Human Rights 16