R2P: A new ‘standard of sovereign responsibility’?

Knowledge brokering02 Jun 2010Julia Hoffmann

‘Never again’ – this may be the most commonly cited post-WWII pledge, epitomizing a common determination to be capable of learning from history after all and to move towards a time when turning a blind eye towards grand-scale atrocities would no longer be thinkable. After the shock of the Holocaust, however, the onset of the Cold War quickly dissolved hopes for the emergence of an international consensus on a robust regime to prevent the worst crimes against humanity in the future.

Achievements such as the Universal Declaration of Human Rights and the Genocide Convention were major, but for a long time their primary impact seemed to be limited to the sphere of discourse and activism. It was only after the tragedies that ravaged the peoples of former Yugoslavia and Rwanda in the 1990s that ad hoc international criminal tribunals were set up to end impunity when it comes to this gravest category of international crimes.

Only in 2002 did the international community establish a permanent International Criminal Court (ICC) to try individual perpetrators, while it took until 2007 – almost 60 years after the adoption of the Genocide Convention – for the International Court of Justice (ICJ) to give an interpretation of the obligations contained in the Convention. All the above developments may point to an increasing constitutionalization of international law, that maybe hoped to contribute to a gradual move towards a more effective response to mass atrocities.

In reaction to the NATO intervention in Bosnia and Herzigovina, the debate surrounding what was termed ‘humanitarian intervention’ subsequently erupted on a full scale and has since divided the international political, as well as legal, community. In 2001, a UN commission (the ICISS) came forward with a report that was to provide an impetus for renewed debate concerning what it called the ‘responsibility to protect’ (r2p) populations suffering from gross human rights violations, such as genocide, war crimes, and crimes against humanity including ethnic cleansing.

It took until 2004 for the first major intergovernmental conference on genocide since the adoption of the Genocide Convention to take place: the Forum on Genocide Prevention (held from 26-28 January in Stockholm), at which governments expressed their commitment to ‘using and developing practical tools and mechanisms to identify as early as possible and to monitor and report genocidal threats … in order to prevent the recurrence of genocide, mass murder and ethnic cleansing’.

At the forum, Kofi Annan, then UN secretary general, declared that there can be no more binding obligation than one to prevent genocide, and proposed the establishment of a UN Genocide Prevention Committee. Furthermore, in his April address observing the International Day of Reflection on the 1994 Genocide in Rwanda, Annan outlined a Five Point Action Plan to prevent genocide and announced the creation of the new post of Special Adviser on the Prevention of Genocide. During the 2005 World Summit, the proposed concept of a r2p as a new way of framing this issue was endorsed by the international community, which holds the promise of easing the political deadlock that had haunted the debate around ‘humanitarian intervention’.

While the recognition that sovereignty comes with responsibilities may not be new, the striking element of this new concept is the recognition that when national authorities, who hold the primary responsibility, manifestly fail to protect their populations, the international community shall fill in the void. Also, there is a comparatively strong emphasis on preventive action as opposed to the relative focus on punishment after the event that can be discerned in the setup of the Genocide Convention as well as the workings of the ICC. This is exemplified in paragraph 139 of the Summit Outcome document, which states that ‘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’.

The r2p includes three further strains of action: (1) a protection responsibility of states, (2) international assistance in capacity building, and (3) timely and decisive response. In this sense, the norm that has been emerging could be seen, as one participant of the upcoming conference has termed it, an effort to ‘reconstruct humanity as responsibility’ (Swatek-Evenstein).

Clearly, it remains to be seen to what extent this emerging norm will make a difference in the real world. Recent examples of potential application abound, with mixed results from Kenya to Darfur. Yet, the resonance that the idea of an r2p has produced so far is promising, to say the least. Academic debate has been vibrant, NGOs have taken up the concept on a large scale and have even been founded in response to its emergence, while UN secretary general Ban Ki-moon recently suggested joining the office of the Special Adviser for the Prevention of Genocide with that of the Special Advisor with a focus on the Responsibility to Protect.

In the meantime, many crucial questions remain unanswered and will need to be resolved if the r2p is going to be more than merely yet another rhetorical exercise. Conceptually, one may have questions about the moral, as opposed to legal, aspects of the doctrine and wonder to what extent the new concept will add anything to existing obligations under international law and the options for action. Is it not just a different way of claiming a right to humanitarian intervention and thus as vulnerable to abuse in the arena of power politics? Could it ultimately undermine sovereignty as the cornerstone of international law?

What is the status of the r2p under international law? Can we consider the Outcome Document as a collective opinio iuris of the international community? Is a responsibility equally strong as an obligation? And if so, what exactly would such an obligation entail and whose would it be? Should one aim at intervention by the UN, NATO, a regional organization such as the African Union, one or a group of nation-states? Is it conceivable that, as a consequence of recognizing the r2p, a veto by a permanent member of the Security Council in a r2p situation be considered illegal, as has been implied by the delegate of Lichtenstein during the debate leading to SC Res. 1674?

How could the r2p be put into practice under real-life circumstances? What kind of information do we need to make the call? Can we come up with a specified set of ‘triggers’ and will we subsequently be willing to do what it takes to prevent mass atrocities in the future? What qualifies as sufficiently robust action?

In order to keep the debate alive and on track, there is a growing need for cooperation among politicians, academics, policy-makers and civil society organizations. Six years after the Stockholm Declaration, experts from these fields will come together in Linköping, Sweden, next week (8–12 June 2010) to discuss these issues, with a strong focus on international law while incorporating insights from political science, international relations and moral philosophy.

This blog aims to give you the opportunity to follow the debate, highlighting the most salient arguments and perspectives and providing you with the opportunity to take part by discussing the posts, but also by sharing your own viewpoints and questions.