Our morning session started off with the intriguing legal question of whether the Security Council is obliged, under national law, to authorize the use of force in r2p situations. This, in its last analysis, would make an ‘abusive’ veto by a permanent member of the SC legally irrelevant.
Anne Peters dissected the legal intricacies of this question and concluded with a resounding ‘yes’ (you can download her handout at the end of this post), while her fellow panelist, Daphna Shraga, denied the existence of such an obligation. Yet, she considered that perhaps an emerging relevant practice can be found in the routine inclusion of the protection of civilians in the mandate of peacekeeping missions during the past 10 years, which may lead to the development of a norm over time.
But one may wonder whether the impact of this debate might remain confined to the domain of academic interest given that, as one participant emphasized, when the SC finally agreed to strengthen the UNAMIR in Rwanda, no state actually committed troops.
The following debates and presentations during the day mainly evolved around the concept of humanitarian intervention, its legal and moral foundations and, importantly, its relation to the third pillar of the r2p. As it has been a red threat during the conference, the importance of words and the evolution of a normative narrative can hardly be underestimated. Questions such as ‘Who invented it? Whose interests is it encorporating? Who ‘owns’ it?’ all arise in this context and may determine the potential for negotiation and future consensus that the r2p is seeking to achieve, by reframing the debate away from humanitarian intervention (e.g. by employing the terminology of humanitarian engagement).
Yet, as has been pointed out by many participants, the distinction between humanitarian intervention and the r2p is not merely rhetorical. Instead, there are fundamental differences that address the most contentious aspects of the prior concept that never garnered the support of the international community. Crucially, coercive measures that are incorporated within the third pillar of the r2p encompass more than merely military intervention, while the other two pillars are equally important.
That force is indeed not the centrepiece of the r2p was also emphasized by special advisor Edward Luck, who regretted that the third pillar may have received disproportionate attention in the debate so far. Also, the r2p is not aimed at legitimizing unilateral action, but places any coercive action firmly under the principles of the UN Charter and, as such, may in fact be a tool to limit the potential for abusive interventions.
Having said that, while r2p is both broader (including prevention and capacity building, as well as non-military interventions) and narrower (concerning only the specified four core crimes) in scope, there is a clear overlap between the ultimate rationale to open up the option of external, non-consensual and forceful intervention from outside the territorial state. While there seemed to be little disagreement between participants that the case can be made for intervention, given it is within the parameters of international law and under specified circumstances, the recurring dilemma may reside in what James Pattison referred to as the problem of ‘diffused responsibility’. In other words, if we cannot point to a specific actor whose duty it is to take action, but rest our faith solely on erga omnes obligations, this may boil down to a responsibility of ‘all and none’.
This afternoon, the conference came to an end with some final remarks by special advisor Luck, who quickly resumed the latest developments surrounding the organization of the Joint Office (which so far has no staff and no money!). Primarily, he cautioned against confusing what we want r2p to be with what it is, and reminded us of the fact that, at the end of the day, the success or failure of r2p depends on politics, politics, politics.
In order to better reflect the number and density of presentations and debate, a number of speakers have agreed to submit separate posts to this blog in the days to come, which will hopefully carry the discussion beyond the confines of a hotel in Linköping.
These posts will cover questions such as: is the r2p is applicable to the situation of Burma in 2008, when a cyclone hit the country and the military junta refused to allow access to humanitarian aid? What about the r2p in the Middle East? What is the political power balance and how does the Israel-Palestine conflict impact the debate? What lessons can be drawn from previous interventions in potential r2p situations, such as in the form of the arrest warrant of the ICC against Sudan’s Al-Bashir? How does the principle of subsidiarity, which conceptually underlies both the Rome Statute and the r2p, influence the potential for peace?