The parade of presentations this morning led us through, while perhaps not conclusively answering, possibly all the relevant legal aspects of the r2p – its legal basis, its scope, its content and its nature. While there is little agreement on whether we should talk about a (general) principle of international law, a political doctrine or an (emerging) norm, no one seems to think that what r2p entails is a radical departure from existing legal obligations.
From common Article 1 of the Geneva Convention, through the ILC article on state responsibility to the Genocide Convention and the ICJ’s findings in the Serbia/Bosnia case, there are traces of existing legal obligations. These seem to legitimately bolster the expectation that states, and the international community as a whole, have accepted a certain degree of collective responsibility (towards whom may still be disputable, as Anne Peters pointed out today) for situations that are about to or already have resulted in one of the four core crimes – genocide, ethnic cleansing, war crimes or crimes against humanity.
While the decision to confine the r2p to these four international crimes may have been a smart strategic move in order to enable a broader consensus on the concept, Jann Kleffner convincingly argued today that the solutions hardly seem convincing – neither morally (much serious harm and suffering is imaginable that cannot be subsumed under any of these categories, while no less worthy of being prevented) nor legally (given that, for example, ethnic cleansing is in fact not a separate crime under international law but rather a colloquial – and, if I may add, terribly euphemistic – expression).
When it comes to the operational side, yesterday was, to say the least, very thought-provoking. It was a time to ask some hard questions, and to challenge r2p enthusiasts to face some uncomfortable and daunting facts.
Sarah Sewall shared her insights into the dire lack of preparation and common practice when it comes to military planning and training to respond to mass atrocities. When we conceive of preventative employment, the terrible lessons of the past – including the role of peacekeepers, from Srebrenica to Rwanda – have apparently still not led to sufficient revisions to create operational readiness.
Sewall partly sees this as the result of our unwillingness, when preparing peacekeeping missions, to think through the uneasy question of what to do when things go bad – this kind of wishful thinking, she argues, has caused most of the abject failures of past missions. There is thus a blatant need to go back to the drawing board: to recognize present shortcomings when it comes to responding to mass atrocities, especially in the high violence spectrum, and make explicit the purpose, aims and tools of future military operations with a mandate that includes tactical civil protection – for the sake of populations in danger and also those soldiers who we ask to protect them on the ground.
The afternoon was spent with a refreshingly undiplomatic and predictably controversial Daniel Goldhagen (author of Hitler’s Willing Executioners), who followed up the screening of his documentary Worse than War with an impassioned critique of the current status quo of (non-) prevention and action towards what he called a ‘war against humanity’. Given that genocide is not a spontaneous eruption but always a programme, in the face of another Rwanda, he asked us, what will we do if the UN won’t act?
Given the discouraging track record of the UN system of preventing genocide, he called for a coalition of democratic states to take over the job – if need be by force – even drawing parallels with the existing US bounty system that encourages the assassination of terrorists to be applied to genocidal heads of states. He generally called for a re-focus of the debate in at least two ways: (1) away from states – on which international law naturally tends to focus – towards leaders, whose cost-benefit analysis when faced with what Goldhagen terms ‘eliminationalist’ policy options will have to be tackled, and (2) away from an archaic concept of sovereignty, which, he emphasized, resides in the people, not the state as such (making undemocratic states by definition to be in violation of sovereignty).