The Responsibility to Protect and the Responsibility to Prosecute

Georgiana Epure, University of Cambridge, UK

Georgiana is an editor of the R2P Student Journal. She holds a BA in International Relations from the University of Leeds. As an Undergraduate Research and Leadership Scholar, she worked with the Intervention and International Society Research Cluster at Leeds. In 2015, she founded the R2P Student Coalition at Leeds. Her article was written in her finaly year at the University of Leeds.

There are few occurrences that bind states and make them aware of their common values. The protection of populations from mass atrocities that shock the conscience of humankind is one of them. This article looks at states’ and the international community’s responsibilities to protect (R2P) and prosecute. The article argues that these two responsibilities have a complementary relationship, as they share the same goal of protecting people from gross human rights violations. However, this relationship, a mixture of political and judicial measures, can work against that goal when R2P and the responsibility to prosecute are used simultaneously as conflict management tools in on-going crises.

The article has a twofold structure. First, using English School theory, it examines how these responsibilities emerged and what they entail. This will be followed by an analysis of their complementary relationship and an assessment of how both these normative projects, which have universal moral underpinnings, blur the lines between two different types of world orders: the society of states and the world society. The second part analyses how the closeness between R2P and the responsibility to prosecute can be problematic as it may result in legitimacy and civilian protection costs. The article concludes nonetheless that the intimate link between R2P and the responsibility to prosecute strengthens the global protection discourse and increases the guilt for inaction. That is because the potential problems of legitimacy and civilian protection costs can be mitigated if the coercive tools of the R2P and responsibility to prosecute – Pillar III on the one hand, and proprio motu and United Nations Security Council (UNSC) referrals on the other – are sequenced so that criminal accountability acts retrospectively. If this does not happen, the responsibility to prosecute can undermine R2P’s human security agenda.

Two Responsibilities, One Goal 

The international community has been developing a global normative project to protect people from gross human rights violations. This project comprises different ‘sets of norms and practices’ that entail different types of actions (Mills, 2015a, p.1). The responsibility to prosecute (punishing those most responsible of mass atrocities) and R2P (preventing mass atrocities, assisting states to protect or using peaceful or coercive means to stop mass atrocities) are two of these norms and practices. The responsibility to prosecute has a longer history than R2P, dating back to 1474, when the first international trial was held (Schabas, 2011, p.1). R2P has its roots in the failure of the responses to the humanitarian crises in 1990s, which were either lacking, as in the case of Rwanda, or were ‘illegal but legitimate’ as in the case of Kosovo (The Independent International Commission on Kosovo, 2000, p.4). R2P as a concept emerged from the International Commission on Intervention and State Sovereignty Report (ICISS) in 2001, as a response to then-Secretary General Kofi Annan’s (1999) call for reconciling state sovereignty and humanitarian intervention in order to allow for international responses to protect populations from mass atrocities.  In 2005, world governments unanimously agreed that they have a responsibility to protect their populations from four crimes: genocide, war crimes, crimes against humanity and ethnic cleansing (UNGA, 2005, WSOD, para. 138, 139). Four years later, UN Secretary General (UNSG) Ban Ki-moon published his first R2P report, ‘Implementing the Responsibility to Protect’, which outlines the three pillars of the R2P. Pillar I consists of each state’s responsibility to protect its population from the four crimes. Pillar II is the international community’s responsibility to assist states that are unable to uphold their R2P. Pillar III is triggered when a state ‘manifestly fails’ to protect its population, in which case the international community has a responsibility to respond collectively in a timely and decisive manner to protect the population at risk.

The responsibility to prosecute as a (legal) norm has developed through a series of international conventions that created an international legal obligation to prosecute genocide, war crimes and torture. For example, granting amnesties, asylum or exile to perpetrators of such crimes would constitute a breach of treaty obligations (such as The Convention on the Prevention and Punishment of the Crime of Genocide 1948, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, the ‘grave breaches’ of the Geneva Conventions 1949) – as they mean that no prosecution would be forthcoming (Scharf, 2006, p.350-1). The responsibility to prosecute began to be institutionalised after the end of World War II (Schabas, 2011, pp.5-16) through the establishment of the International Military Tribunals at Nuremberg and Tokyo, the creation of the ad-hoc international tribunals in Rwanda and Former Yugoslavia in the 1990s, and culminated in the establishment of the permanent and independent International Criminal Court (ICC) in 2002.

R2P, on the other hand, lacks an institutional embodiment. Nevertheless, as Ralph (2016, p.2) highlights, R2P and the responsibility to prosecute (through the ICC) share a recent history that commits them to ‘the long-term goal of ending mass atrocities’. These two responsibilities have developed alongside each other, despite the fact that they are not formally linked (Ainley, 2015, p.37). First, they have a close relationship because they overlap in their focus on the protection against the same crimes. Because R2P focuses solely on four crimes (genocide, war crimes, crimes against humanity and ethnic cleansing), this section analyses whether there is a responsibility to prosecute these particular crimes.

First, states that ratified the 1948 Genocide Convention have a legal duty to prosecute those responsible for genocide, the über crime, which is considered a jus cogens crime, that is, states are prohibited from committing it under all circumstances (Scharf, 2006, p.364). Jus cogens norms reflect a general consensus (Ralph, 2007, p.9); they are peremptory norms accepted by the whole international community for which states’ consent is not needed as they have foundations in natural law from which no derogation is permitted (Scharf, 2006, p.364-5). Second, under the 1949 Geneva Conventions and Additional Protocols, there is a duty to prosecute war crimes. However, it is worth noting that the ‘grave breaches’ of the Geneva Conventions, which impose a duty to prosecute, punish or extradite war crimes perpetrators, only apply to international armed conflict that involve at least two states (Scharf, 2006, p.351). R2P responses to war crimes, however, generally occur in internal armed conflicts. This is because civil wars are now much more common than international armed conflicts. . Nevertheless, whilst states and international tribunals can prosecute war crimes in internal conflicts (see the ICTY-Prosecutor v. Tadic, Case No. IT-94-1, 1995, paras.97-137), there is no absolute legal duty to do so (Scharf, 2006, p.352). Third, with regard to crimes against humanity there is no absolute requirement to prosecute. As Scharf (2006, p.360) stresses, crimes against humanity are a ‘creature of customary international law’, generated out of the jurisdiction of the Nuremberg Tribunal, the International Criminal Tribunal for Former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court in Sierra Leone, and most recently codified in the Rome Statue of the ICC. Although there is no legal duty to prosecute crimes against humanity, under customary international law, which is defined as ‘a general and consistent practice of states followed by a sense of legal obligation’, amnesty and asylum are prohibited for such crimes (Scharf, 2006, p.360). The fourth crime, ethnic cleansing, does not have a definitive legal definition under international criminal law (Bellamy and Reike, 2010). However, it is covered by crimes against humanity under the jurisdiction of the ICC. In short, the twin responsibilities to protect and prosecute represent two ‘inter-related twin tasks [to] protect victims and punish the perpetrators’ of the same mass atrocities (Thakur and Popovski, 2007, p.41).

As discussed, the responsibility to prosecute is entrenched in international criminal law. R2P, on the other hand, is ‘a political commitment’ (Bellamy and Reike, 2010, p.267), arose from legal commitments as well (see, for example, 1948 Genocide Convention); that is, R2P did not create new obligations, but reinforced customs already entrenched in international law. To be clear, R2P is not legally void, but has more of a moral and political nature, particularly in what concerns its reactive pillars, whether supportive (Pillar II) or coercive (Pillar III) (p.269). R2P’s normative status is also more problematic because of its complex nature. As Stahn (2015, p.19) puts it, R2P is a set of norms, an ‘umbrella concept’ (Stahn, 2015, p.19), which makes its internalization difficult (Welsh, 2013, p.386). Despite the disequilibrium in their normative strengths, the responsibility to prosecute and the R2P contribute to achieving the same goal: protection from mass atrocities – whether through ‘interventions to stop atrocities’ or ‘holding individuals criminally responsible for atrocities’ (Mills, 2015a, p.1). To tweak Sikkink’s words (see ‘The Justice Cascade’, 2011), these two responsibilities create a ‘protection cascade’ that strengthens the protection discourse both at the domestic and the international level, in domestic and international law, norms and institutions.

Additionally, both norms draw on similar foundations of a ‘humanity-based defense of international authority’ (Stahn, 2015, p.13) and they both call for ‘humanitarian concerns to be of international concern’ (Birdsall, 2015, p.54). The development of the responsibility to protect and prosecute norms mirrors the evolution of a changing world order, which Dunne and Wheeler (1999) identify as a ‘critical international society’ where states create and advance cosmopolitan values and universal moral principles and norms that transcend the society of states. The responsibilities to protect and prosecute are measures developed to defend such values, which advance the creation of an international community (world society). As the English School solidarist scholars note, the international society ‘eventually spills over the boundary into world society’ (Buzan, 2001, p.479), because states have a responsibility to a greater concept of ‘the common good, which may include a conception of humanity that is founded in natural or customary international law’ (Ralph, 2007, p.9). As Buzan (2001, p.478) puts it, shared moral norms are the foundation of ‘a more expansive, and almost inevitably more interventionist, understanding of international order’ – this includes both an international responsibility to act to protect populations from gross human rights violations and a responsibility to prosecute those responsible of orchestrating them. Due to this sense of moral obligation, states act as agents of humanity to protect populations and ‘save strangers’ (Wheeler, 2000).

International criminal justice (especially with crimes under universal jurisdiction and the UNSC referrals to the ICC) and R2P blur the lines between the society of states, in which state sovereignty is still the constitutive rule, and the world society, which rests on a ‘common perception of humanity’ (Ralph, 2007, p.17), where ‘the state complements the work of other supranational institutions’ (p.18). Nevertheless, both norms require ‘substantial derogation of sovereignty’, R2P with respect to the norm of territorial non-intervention and the responsibility to prosecute with respect to the norm of sovereign impunity (Thakur and Popovski, 2007, p.41). R2P is a universal agreement that binds states and the international community to prevent and stop mass atrocities, and that asserts that state sovereignty is not absolute. International criminal justice further strengthens a society ‘based on humanity rather than sovereignty’ (Durkheim, 1933, p.63). This is reflected in the Rome Statute, which gives the Prosecutor discretionary power to act without the consent of the UNSC, which makes the ICC independent from the society of states (Art. 15) – however, the UNSC can still have the last word under Art. 16 which gives the Council power to suspend an investigation. Both norms contribute to the erosion of the negative, absolute sovereignty, and strengthen positive sovereignty (see Thakur and Popovski, 2007, p.48). The development of the responsibility to protect and prosecute has shown that the focus has shifted from the negative function of sovereignty (acting as a shell from outside interference in the internal affairs of a state, in order to maintain state pluralism in international relations) to its positive function, which focuses on the population of a state and its protection. This makes sovereigns accountable both internally and externally: to their populations and to the international community (Piiparinen, 2012, p.406).

At the same time, both international responsibilities come secondary to domestic mechanisms, having a complementary function (Contarino et al, 2012, p.272). R2P’s coercive tools are activated on a case-by-case basis when the state ‘manifestly fails’ to protect its population (WSOD, para.139), and the ICC jurisdiction is triggered only when the state is unable and/or unwilling to prosecute (Preamble of the Rome Statute, para.10). Moreover, they both seek to have a supportive role (work in partnership with the state) to achieve their goal rather than use coercive interventions – R2P through Pillar II international assistance and capacity-building, and the responsibility to prosecute through its positive complementarity function that seeks to strengthen states’ capacity for justice. Luban (2013, p.511) describes the latter as ‘norms [getting] spliced into the DNA of domestic law … norm projection at work’, which achieves more than the few trials in The Hague.

To sum up, whilst the two responsibilities are ‘two sides of the same coin’ (Thakur and Popovski, 2007, p.40), they have ‘divided the labour’ of preventing and protecting populations from mass atrocities through a political approach on one hand, and judicial approach on the other.

The Dangers of a Too Tight, Synchronised Relation

How and when these responsibilities apply is crucial to strengthening or undermining their relationship. R2P interventions (supportive or coercive) are prospective, aiming to prevent or stop crises. The responsibility to prosecute is mainly retrospective, holding people accountable after atrocities occurred (Mills, 2015, p.14). However, the ICC, the most recent institutionalistion of the responsibility to prosecute, also holds a preventative function laid down in the Preamble of the Rome Statute (para. 5), which stresses the Court’s role in ending impunity and its contribution to prevention. Holvoet and Mema (2014, p.23) emphasize the ICC’s positive and negative general preventative role by respecting the ‘international criminal law and the core societal values protected therein’ and deterring future crimes. As Mills (2015, p.30) stresses, besides its prevention and deterrence functions, the ICC, by intervening in on–going conflicts, also has a conflict–management role. This can be problematic because these two responsibilities, when employed simultaneously, can undermine each other’s prospects for success (Ralph, 2015, p.5). This risk originates mainly from their asymmetrical relation (Karsten, 2011), rooted in the R2P’s political nature and the legal and apolitical character of the international criminal justice (Ainley, 2015, p.45).

Whilst R2P might benefit normatively from its closeness to the responsibility to prosecute, in practice, their association damages the responsibility to prosecute as it may become politicised. Contarino et al (2012, p.298) argue that the ICC could accelerate R2P’s norm cascade and consolidation (Contarino et al, 2012, p.298). As the former ICC prosecutor stated that the ICC could ‘add legitimacy to Security Council’s decision to apply the R2P concept’ (Moreno–Ocampo, 2006), by establishing a juridical process, rather than a political one, to determine when R2P violations occur (Contarino and Lucent, 2009, p.563). However, when employed in on-going conflicts, first, the ICC risks becoming a politicized tool, which undermines its impartiality and legitimacy (Birdsall, 2015, p.51). The ICC has global reach only when its jurisdiction is unlocked by the UNSC, which can refer non-party states to the ICC. To reach and hold to account people such as Omar al–Bashir and Gaddafi (in non–party states), the ICC is drawn into the political and power dynamics of the UNSC. As Ainley (2015, p.44) argues, the ICC would ‘impinge upon P5 interests if it were to rely increasingly on UNSC referrals to build up its effectiveness’. However, this increase in effectiveness would come at a cost, namely the ICC’s legitimacy as an impartial international institution. By serving the UNSC, the ICC would trade authority (based on its legal character) for power (Ainley, 2015, p.46). This is problematic because impartiality is a key attribute of the ICC.

Second, the responsibility to prosecute in on–going conflicts might also interfere with national efforts for peace, which might include granting amnesties for peace and reconciliation (Mills, 2015a, p.49). However, as has been discussed in the first section of the article, international criminal law prohibits the granting of amnesties for genocide, and customary international law favours punitive, criminal accountability for crimes against humanity and war crimes. Thus, the uncompromising pursuit of international criminal justice makes conflict management difficult (Mills, 2015b, p.73). Sometimes trading peace for justice can have a bigger protection impact. A person’s indictment can interfere with protection and peace agreements because it increases their incentives to continue fighting as the alternative is The Hague (Mills, 2015b, p.82). Given the risks that this tight relationship poses, as Ainley (2015, p.47) concludes, R2P and the ICC can best achieve their goal by focusing on prevention rather than intervention or prosecution. In other words, R2P and the responsibility to prosecute together can achieve more if they focus on their complementarity functions under Pillar II, to strengthen state capacity to prevent, protect and prosecute. As Stahn argues (2015, p.13), it is better to respect the autonomy of these two individual responsibilities and their mutual virtues.

Conclusion

R2P and the responsibility to prosecute are closely related. They are ‘intimately linked’ (Kersten, 2011) and their relationship goes beyond their common recent history, focus on genocide, war crimes and crimes against humanity and their goal of protecting populations from these crimes. These two responsibilities are part of the same global normative project that advances the creation of a world society based on a common sense of shared universal humanity. It is this common humanity that needs to be protected from mass atrocities and to which those who bear the greatest responsibility for planning and organising mass crimes must be held  accountable. Despite the unequal weight in their normative strengths, these two responsibilities consolidate the global discourse for protection against gross human rights violations and increase the guilt for inaction. At the same time, because of the different nature that makes the political and judicial responsibilities complement each other, too tight a relationship can undermine their prospects for success and their protection goal. They both have supportive and coercive functions to pursue their goals. However, when employed at the same time and when they become conflict–management tools in on–going conflicts, international criminal justice can undermine peace efforts and can be used as a political tool, which affects the impartiality and legitimacy of this institution. As a result, their relationship can deliver more when international criminal justice acts retrospectively, and when R2P and the responsibility to prosecute focus on their complementary roles – building states’ capacities to fulfill their domestic protection and prosecution responsibilities, which consolidates prevention.

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The International Criminal Court: A Shackled Elephant in the Court Room?

Enyeribe Oguh, University of York, United Kingdom

Enyeribe is a postgraduate law student at the York Law School. He graduated magna cum laude in law (LLB) from the University of Leeds in 2015. He is interested in international criminal justice and he is currently working on secession and the use of force.

It is not in the interests of international justice that the ICC should have jurisdiction over nationals of small and weak nations but not those of the large and powerful. (Goldstone, 2012)

The Rome Statute (the Statute) entered into force on 1st July 2002, but has since been subject to much controversy. Yet, recently the Court was described as ‘the jewel in the crown’ of international criminal justice (Stephen, 2012, p.73). This ‘jewel’ is the outcome of several weeks of heated debate and compromise that culminated in the creation of the Statute on 17th July 1998 (Lee, 1999; Conso, 1999). While marking that historic event, Kofi Annan (1999) as UN Secretary General, declared the Statute to be ‘a gift of hope to future generations’ and ‘a giant step forward in the march towards universal human rights and the rule of law’. The Statute, according to Luis Moreno-Ocampo (2008), also signified a major shift ‘from an era of ad hoc international tribunals to … an independent and potentially worldwide system of international criminal justice … aiming to protect each citizen in the world’.

Barely two decades after its creation however, the Court is heavily pilloried in some circles (Robinson, 2015). Critics call it a tool to e exploited by Western powers to humiliate maverick leaders and citizens of weaker states (Goldstone, 2012). This perception swelled in the wake of the UN Security Council (UNSC) referral of the Darfur situation to the Court. The legality of that referral was questioned by former African Union (AU) commissioner, Ramtane Lamamra, in light of the fact that three of the UNSC Permanent Five (P-5) members have not yet ratified the Statute and as such do not belong to the Court’s jurisdiction (BBC News, 2013). Consequently, some leaders, such as Rwanda’s President Paul Kagame, have dismissed the Court as flawed and ‘fraudulent’ (Kezio-Musoke, 2013) while others, including Prime Minister Desalegn of Ethiopia, believe that it is engaged in ‘race hunting’ (BBC News, 2013). The Court has also been accused of lacking universality in its application and choice of legal systems (Badar, 2011).

Against this backdrop, this paper carefully evaluates the merits of some of the above criticisms in relation to the Court’s credibility. To begin with, it examines, in section II, the extent of the Court’s jurisdiction as established in its founding Statute and underscores some of the inherent limits therein. In section III, the thesis of a toothless Court with a political bias against weak states, particularly within the African region, will be critique. In the final section IV, the paper will analyse the ways in which some of the Court’s weaknesses can be judiciously addressed.

The Extent and the Limits of the Court’s Jurisdiction

The creation of the Court in 2002 marked a radically innovative contribution to the international criminal justice system (United Nations, 1998). In furtherance of the purposes and principles of the UN Charter (Rome Statute, 1998, Preamble), the Statute introduced for the first time in history an independent and permanent court (1998, art.1) that has competent jurisdiction to prosecute and punish perpetrators of ‘the most serious crimes of concern to the international community’ (1998, Preamble). Its stated primary objective is to end ‘impunity for the perpetrators’ of the relevant crimes and ‘to contribute to the prevention of such crimes’ (1998, Preamble) through the twin principles of complementarity with national criminal jurisdictions and cooperation with states. It is pertinent, thus, to consider the breadth and the bounds of the Court’s authority as specified in its Statute.

About two millennia ago, the great Roman Senator Marcus Tullius Cicero declared that ‘in the midst of arms, law stands mute’ (United Nations, 1998). But today, in the era of the Rome Statute that Ciceronian maxim may no longer hold water. Not being subject to any statute of limitations (Statute 1998, art.29), the Court is authorised to act ‘in the midst of arms’ or in time of peace, to uphold a non-negotiable red line between hostile parties, and to hold accountable those who bear the most responsibility for trespassing the red line (art.27-28). This is one of the unique innovations of the Court relative to the previous ad hoc tribunals all of which lacked permanent jurisdiction and were usually constituted only at the end of hostilities.

Before it can act, however, the Court must first satisfy itself that it has jurisdiction and that the situation is not inadmissible (Statute, 1998, art.17). Its primary jurisdiction ratione materiae (subject-matter jurisdiction) pertains to the following crimes, to wit: (a) genocide; (b) crimes against humanity; (c) war crimes; and (d) the crime of aggression (1998, art.5). Except for the latter whose definition was only articulated at the 2010 ICC Review Conference in Kampala, the constitutive elements of the rest of the crimes here are outlined in Articles 6, 7, and 8 of the Statute. Effectively, however, the Court’s jurisdiction over the crime of aggression is suspended until 2017 when its Kampala definition will enter into force provided at least thirty state parties ratify the said amendments (Traschler, 2013). Even where these crimes are alleged to have been committed, however, the Office of the Prosecutor (OTP) would have to establish that ‘a reasonable basis’ (1998, art.15(3)) exists to initiate an intervention. If established, then the Pre-Trial Chamber considers, among other things, the following: (i) that the case is of the sufficient threshold of gravity (1998, art.17(d)); (ii) that it is not under investigation or prosecution by a state with the relevant jurisdiction (1998, art.17(a)); and (iii) that the interest of justice will be served by an intervention (Moreno-Ocampo, 2010).

The Court’s jurisdiction, however, is limited in a number of ways. Principally, it lacks universal jurisdiction and therefore cannot intervene in every state. This is an unfortunate drawback that has driven most of the key controversies surrounding the Court. Under Article 12(2) of the Statute, the Court can only exercise jurisdiction if the relevant crime has been committed on the territory or by a national of a state party (or a state that has accepted the Court’s jurisdiction through a declaration). This provision, which was a negotiated compromise to cement the support of some key opponents of universal jurisdiction like India and the United States (US) during the Rome negotiations, is perhaps the greatest blow to the vision of a genuinely global Court (Robertson, 2002, p.347). In effect, Article 12 of the Statute restricts the Court’s jurisdiction to only the territories and nationals of state parties, save under special circumstances. So, as most states in the Middle East are yet to ratify the Statute, it implies that situations like Iraq, Yemen or Syria (Hilmy, 2013) are beyond the Court’s reach without a UNSC referral (Statute, 1998, art.13(b)).

Similarly, the Court also lacks authority even to consider the crimes within its subject matter jurisdiction that were committed before the entry into force of the Statute on 1st July 2002. This temporal limitation, ‘jurisdiction ratione temporis’ under Article 11 of the Statute, implies that in principle the Court has no retrospective jurisdiction and thus can do nothing about for example a crime of genocide committed on 1st June 2002 within the territory of a state party. Article 24(1) of the Statute clearly specifies that, ‘no person shall be criminally responsible under this Statute for conduct prior to the entry into force of this Statute.’ Whereas this is consistent with Joseph Raz’s (1994, pp.373-4), idea of the prospective principle of the rule of law, it is inconsistent with the tradition of ad hoctribunals such as the International Military Tribunal at Nuremberg (IMT), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) or the Extraordinary Chamber for the Court of Cambodia (ECCC) that usually looked backwards and prosecuted crimes that had been committed long before the tribunals were established. By choosing 1st July 2002 as its cut-off date, the reach of the Court was scythed down to the 21st century perpetrators.

Furthermore, the Court’s jurisdiction in states that ratify the Statute after 1st July 2002 is restricted to the period only after the entry into force of the Statute for the specific states unless a state indicates otherwise by means of a declaration (1998, arts.11(2), 12(3)). Arguably, such a ‘generous’ provision may explain why as many as 70 states are yet to ratify the Statute (Trachsler, 2013, p.3). It can also incentivise rogue leaders who had perpetrated heinous crimes or who intend to hang onto power by vicious means to be in no hurry to ratify the Statute. Article 11(2) of the latter is again another unfortunate concession from the Rome Conference. Quite unlike the IMT that prosecuted corporations for criminal liability in the Nazi war crimes, the Court has no jurisdiction over jural persons but only over ‘natural persons’ (Statute, 1998, art.25) who are at least 18 years old at the time of the alleged conduct or omission (1998, art.26). Thus, arms and munitions companies that supplied the weapons that were used to slaughter victims, media companies that spread hate-propaganda that led to genocide, and hardened child soldiers (Prosecutor v. Lubanga [2012])[1] who raped or killed victims with impunity cannot be brought before the Court for trials or be made to pay reparations to the victims of their crimes.

At any rate, the Statute grants the UNSC, in keeping with Chapter VII of the UN Charter, the right to refer situations anywhere in the world to the Court as one of the three conditions that can trigger the Court’s exercise of jurisdiction. This Article 13(b) provision gives the Court the semblance of a quasi-universal jurisdiction since the UNSC has the primary duty under Article 24(1) of the UN Charter to maintain global peace and security just as all UN member states are obliged under Article 25 of the Charter to respect the UNSC decisions. Owing to the political nature of the UNSC, however, it can be expected that the use of this referral power will be rare due to its political ramifications. As the case of Syria shows, some of the UNSC P-5 members with a vested interest in ongoing conflict situations may likely veto any referral to the Court and the UNSC has also to be wary of negative public perceptions of its role towards the Court. To date, the UNSC has invoked its referral power only twice with respect to the situations in Darfur and in Libya. Under Article 16 of the Statute, the UNSC is also empowered to instruct the Court to defer an investigation for up to a year (order that is renewable for another year). Both provisions, expectedly, have been much criticised as opening a sort of a back door to the political control of the Court by the UNSC (Robertson, 2002, p.353).

The two other conditions that trigger the Court’s jurisdiction include referrals from state parties and the proprio motu investigations initiated by the OTP. With respect to the latter, perhaps as a way to curtail abuses or ‘politically motivated prosecutions’ (Corell, 2000), the OTP is obliged to obtain the endorsement of the Pre-Trial Chamber on the admissibility of the alleged charges before commencing a formal investigation. Her power, which is also restricted to the territories and nationals of state parties, has so far been exercised only once in the collapsed Kenyan situation. In contrast, about four state parties, including DRC, Uganda, CAR and Mali, have so far made self-referrals to the Court.

Crucially, however, the Court’s jurisdiction is only secondary and complementary (not an alternative) to the national criminal jurisdictions of state parties. Thus, it cannot intervene where a municipal court is already investigating, prosecuting, or has convicted or acquitted an accused (see the Statue, arts.17-18, on issues regarding admissibility). Under this ‘principle of complementarity’ and consistent with the rule against double jeopardy, the Court is also not entitled to exercise jurisdiction over someone who has already been tried ‘by another court’ for conduct that forms the subject of its complaint (Sands, 2003, p.74). Likewise, it cannot retry a case that has already been investigated and dismissed for genuine reasons by a state with the relevant jurisdiction (p.74). Only where the Court determines that the domestic mechanisms are ‘unwilling’ or ‘unable’ to act is it mandated to assert its jurisdiction. Such a determination for instance may consider whether a municipal system is inactive or too dysfunctional to act.

Similarly, where a trial is in process or has already taken place, the Court is authorised to intervene if the local processes are adjudged to be biased or ineffective to bring about justice. In either event, as was first witnessed in the case of Thomas Lubanga (Prosecutor v. Thomas Lubanga [2012]), the Court may invite the municipal authorities concerned to transfer the case to the Court with the aim to assist and to complement domestic efforts ‘to investigate and prosecute’ (Gupta, 2000, p.1). By giving primacy to municipal courts in lieu of the Court, the Statute expresses respect for national procedures. This also has certain practical advantages in terms of cost-effectiveness (Nsereko, 2013), familiarity of the municipal jurisdictions with the local contexts and the sheer impossibility of the Court to have capacity to prosecute all indicted or indictable key perpetrators in The Hague. The setback, however, is that the Court’s intervention in a conflict without the relevant state’s consent (or even with its consent) has drawn criticisms for feeding negative judgments of the state’s international image and the quality of its local systems. To this we now turn.

The Elephant in the Room: A Court with a Political Agenda?

In a critical essay on judges and the rule of law, Ronald Dworkin (2009) opined that court decisions have political consequences. Asked, however, if politics influenced his decisions at the Court, the former Prosecutor Moreno-Ocampo replied, ‘On the contrary, I am putting a legal limit to the politicians. That’s my job. I police the borderline and say, if you cross this you’re no longer on the political side, you are on the criminal side’ (Smith, 2009). Notwithstanding the former Prosecutor’s frankness, the Court has appeared to many as a judicial body operating with a covert political agenda within a highly political terrain. In a sense, the Court has seemed to some like an elephant in the room: big, strong and visible, yet unable to command the respect of some key states.

Much of the criticism, however, has focused on the Court’s operations in Africa. Many have argued that the Court has been unfairly selective of African situations in a manner that appears to suggest that Africa has the disproportionate cases of violent conflicts in the world (Imoedemhe, 2015). Thus, the Court has been denounced for scapegoating Africa and for exploiting the continent as a laboratory for trialling novel international criminal laws (Imoedemhe, 2015). This perception is acutely strong among the African elite with some like Kenya’s President Uhuru Kenyatta describing the Rome Statute as a ‘dysfunctional instrument’ (Ayaga, 2016). The fact that the AU recently adopted a proposal for a mass withdrawal of African state parties from the Court epitomises the longstanding frustration and disappointments of many African leaders with the Court’s alleged bias against Africa (Ayaga, 2016). For some time, a number of African state parties like Kenya and Uganda have been threatening to withdraw from the Statute (‘A Joint Report’, 2014), and last year South Africa also declared its intent to terminate its state membership (Mudukuti, 2016).

Ex facie, the above threats and repudiations towards the Court by some African leaders have grounds. Although one third (34) of the Court’s member states (124) are in Africa, all but one (Georgia) of the ten situations under investigation are African (ICC, 2016). It would, ergo, appear as claimed that the Court is unfairly targeting Africa (Agence France-Presse, 2016) or that the continent has the lion’s share of genocidal villains in the world. Nevertheless, a careful scrutiny of the situations under consideration reveals that of the nine cases from Africa, five (DRC, CAR, Uganda, Mali, and CAR II) had been self-referrals by the state parties themselves, two (Sudan and Libya) were Security Council referrals, one – the Ivorian case – was a declaration made by the state while only the now-abandoned Kenyan case had been initiated by the OTP. The large number of self-referrals from African states then weakens the strength of the argument that the Court is engaged in a neo-colonial ‘race-hunting’ of Africans. Although the Court is presently conducting preliminary examinations in three other regions outside Africa, including Eastern Europe, the Middle East and South America, Moreno-Ocampo (2008) aptly avers that the Court’s legitimacy and success cannot be dependent on the regional or global balance of cases that it handles.

The preponderance of self-referrals from Africa may be revealing of the trust of those African states in the Court’s legitimacy and capacity to enforce justice against the perpetrators as well as to bring closure for the victims. It is perhaps also indicative of the precarious difficulties involved in prosecuting influential perpetrators locally. For instance, before referring the situation to the Court, the DRC had attempted but failed to prosecute Thomas Lubanga and his co-accused in the municipal criminal courts. It is similarly not hard to imagine the high risk and near impossibility of prosecuting ‘big fish’ like the late General Augusto Pinochet[2] or former President Lauren Gbagbo (Prosecutor v. Gbagbo and Goudé [2015]) in their national courts without significant external influence. Thus, it is in such situations where the domestic jurisdictions are incapable of handling powerful perpetrators that the Court’s complementary jurisdiction is properly activated.

Notwithstanding the foregoing prospects, the Court’s complementary interface with state judicial institutions has likewise been deplored as a mechanism for imposing ‘victor’s justice’ (Roach, 2012) and show trials aimed at ‘the destruction, or at least the disgrace and disrepute, of a political opponent’ (Peterson, 2007, p.260; Shklar 1964, p.149). Critics have noted that all the self-referrals from the African states have been made against defeated political rivals while the governments’ and/or their supporters’ responsibilities are shielded from the Court (Roach, 2012, pp.67-69; Holligan, 2016). In Uganda, for example, Joseph Kony and some of his Lord’s Resistance Army (LRA) fighters have been indicted at the Court while the atrocities committed by the Ugandan forces are not even investigated (Roach, 2012, p.67). Even the two UNSC referrals are also being read as a ‘power play’ by some Western powers to humiliate and to punish perceived enemies in President Al Bashir and the late Colonel Gadhafi. It was on that score that President Kagame recently hinted that Rwanda cannot be a state party to the Court since, for him, the latter perpetuates Western imperialistic agendas (Kezio-Musoke, 2012).

At the same time, however, what President Kagame and his ilk seem content to exclude from the discourse is the question of their self-interests. For instance, between 2010 when he was indicted at the Court until 2013 when he was elected Kenya’s President, Kenyatta together with his co-indicted Deputy, William Ruto, had cooperated well with the Court. But, once assuming the reigns of power, their attitude and rhetoric became somewhat hostile and they began to insist upon their ‘sovereign’ immunities as head of government and state officials respectively. It is, therefore, no surprise that their cases have now been allegedly abandoned for lack of evidence caused by witness intimidations (The Prosecutor v. Ruto and Sang [2016]). The Statute categorically specifies under Article 27(1)[3]that unlike in customary international law the immunity of state officials (both ratione personae[4] and ratione materiae[5]) is irrelevant and cannot exonerate an individual from ‘substantial criminal responsibility’ (Akande, 2003, p.640), regarding the specified crimes.

Lastly, while it is mostly true that law and politics are interrelated, both can also be isolated one from the other. The Judges at the Court as well as the Chief Prosecutor are essentially elected by the Assembly of the state parties on account of their professional and international experience and are required to uphold justice and fairness without pandering to selfish interests and political considerations (Moreno-Ocampo, 2010). Yet, the fight against impunity has always been a fight against politics (Nouwen and Werner, 2010) and selfish interests. Thus, decisions and acts of such a momentous court as the ICC, to paraphrase Dworkin (2009), will surely have monumental consequences. To be able to exercise universal credibility, therefore, it is imperative that the Court is not only above board, but also be seen to be above board. The next section will proffer some means by which the Court can attain this objective.

Unshackling the Elephant Court: Looking Ahead

Having briefly examined the scope and limits of the Court, it is important to consider certain mechanisms that can serve to remedy some of the lacunae identified above. Arguably, the Court is still cutting its teeth, albeit slowly and contentiously, yet it has the potential to have an enormous impact on the global criminal justice system. ‘By holding individuals personally accountable,’ says Human Rights Watch (1998), ‘the Court could be an extremely powerful deterrent to the commission of genocide, crimes against humanity and serious war crimes that have plagued humanity’ for so long. But realising this goal has so far been a staggering task. Looking ahead, therefore, the first critical challenge the Court needs to address is its lack of universal jurisdiction.

It was the intention of the drafters of its Statute that the Court should have the competent authority and the capacity to prevent, deter, punish and end the culture of ‘domestic impunity’ (Gupta, 2000, p.3) anywhere in the world. But political interests and concessions shaved the Court of universal jurisdiction. This gap, unless it is plugged, will continue to undermine the Court’s credibility. Universal jurisdiction would vest the Court with the power to institute legal action against any alleged perpetrator of the relevant crimes ‘without regard to where the crime was committed, nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction’ (Macedo, 2006, p.21). This capacity is already extant in international law as reflected in the principle of aut dedere aut judicare (‘either extradite or prosecute’) that is embedded in many treaties. Thus, universal jurisdiction gives national courts the power to prosecute perpetrators of crimes deemed to be of such exceptional magnitude as to demand international condemnation (Macedo, 2006, p.35).

If the municipal courts of individual states can unilaterally exercise such a ‘privileged’ jurisdictional power, then it stands to reason that a supra-national court established through a multi-lateral treaty between sovereign states deserves to have such a power if it must lay any authentic claim to real complementarity, universality, credibility and respect. Considering that the principle of sovereign immunity of state officials often impedes states from arresting accused state officials, it is only a supra-national court not bound by such political immunities that holds the best chance of bringing such indicted persons to justice. Hence the Court can gain universal jurisdiction in two ways: (i) by actively encouraging and inducing non-state parties to sign and ratify the Statute until all states have joined it or, (ii) through a binding UN resolution mandating all states to ratify the Statute within a specified time. Either alternative, while possible, would be hard to attain.

In addition, the UNSC right to defer investigations under Article 16 of the Statute poses problems to the Court owing to the political ramifications of any such deferral. Already, as I have shown in the foregoing, the Court has taken enormous criticisms for the UNSC referrals and one can only imagine the opprobrium that could result from any future deferrals, particularly after deferral requests made to the UNSC by the AU with regards to the Al Bashir’s case had been denied. Since political calculations often drive the proceedings at the UNSC, in order to preserve the judicial independence of the Court, Article 26 of the Statute should be repealed or at least amended so as to debar the UNSC from interfering with the Court. Apart from Resolution 1422[6] in which the UNSC, at the insistence of the US, requested the Court not to investigate or prosecute any indicted UN peacekeepers within a specified period, the UNSC is yet to invoke this power to defer an ongoing action at the Court. Yet, it is conceivable that in the future a decision to defer a situation in state A or state B could be vetoed by a P-5 state for political interests. Besides, in situations where states or regions (as was done by Kenya and the AU) request the UNSC to instruct the Court to defer an investigation but the requests go unheeded it could be interpreted as a sign of blatant disrespect to the integrity of the state and/or region. This could fuel threats of withdrawals from the Statute and accusations of self-serving agendas. As Brownlie (2003: 575) rightly notes, so long as the UNSC retains this deferral power in the Statute, ‘political considerations, power and patronage will continue to determine who is tried for international crimes and who is not.’

Relatedly, the Court was established to be an independent Court and must therefore be vested with true judicial independence. The doctrine of separation of powers is a key principle cherished in all liberal democratic states. In municipal jurisdictions, it would be arbitrary for state executives to be issuing orders to courts to terminate or to suspend ongoing proceedings. Thus, the visible separation of the Court’s structure and personnel from the UN structures should also be reflected in the practice and operations of the Court. The power to defer prosecutions, where necessary, should be discretionary to the Court where there are compelling reasons to do so, or a determination made by an absolute majority of the judges of the Court not by the UNSC. The latter should, however, like state parties, retain the power to refer situations to the Court. But the onus must be the Court’s to decide if a referred situation is admissible or not to justify intervention. To ensure the principle of checks and balances, only the Assembly of State parties (or the UN General Assembly when the Court has universal jurisdiction) may be vested with the statutory right to request a stay of proceedings at the Court. The latter should also be free not to grant the request. When these structures have been put in place, it would then be safe to assume as the International Court of Justice noted in an ‘Advisory Opinion’ [1962] regarding the General Assembly that the UNSC would not ‘seek to fetter or hamper the Court in the discharge of its judicial functions.’

Additionally, Article 98 of the Statute[7], which requires the Court to obtain a third states’ cooperation before it can go proceed to seek the surrender of its national from a member state, is a major clog in the operational capacity of the Court. What this provision effectively does is to allow states on whose territory is found a person wanted by the Court to obstruct the Court’s request by appealing to their obligations under international law to a third state (Akande, 2003, p.642). Repealing Article 98 is especially crucial in light of some recent US schemes, mostly instituted by the former President G W Bush Administration, to undermine the Court. After ‘un-signing’ (Rhea, 2012, p.190)[8] the Statute in 2002, the Bush regime actively entered into bilateral immunity agreements with several states to ensure that no US citizen is ever ceded to the Court (Eye and Goldberg, 2012). It also enacted the infamous American Service-Members’ Protection Act (ASPA), otherwise known as the ‘Hague Invasion Act’, which disallows the US agencies as well as countries receiving US military assistance from cooperating with the Court in any form (Rhea, 2012, p.193). The Act also restricts US military participation from some UN peacekeeping operations and authorises the US President to use ‘all necessary measures’ to repatriate any US service personnel and certain other citizens detained or imprisoned at The Hague (Eye and Goldberg, 2012).

If the Court is vested with universal jurisdiction, however, the Article 98 of the Statute will automatically become extraneous since the question of third state consent will fall way. A state party that prioritises an obligation to another state member to defy a request from the Court to surrender an indicted person would then be in breach of its obligations to the Court. The real challenge would be how the Court could enlist state cooperation with the Court at all times and to ensure that states prioritise obligations to the Court over competing obligations to state parties. Similarly, as the Article 27 provision shows the Court is no respecter of distinctions or immunity based on official capacity, a state can no longer appeal to its obligation under international to another state with respect to the immunity of a person or property, so as to defeat an arrest warrant request by the Court. The stark inconsistency of Article 98 with Article 27 would, therefore, come into sharper focus under the light of a universal jurisdiction ensuring that the offending Article 98 of the Statute is either repealed or substantively amended.

Lastly, it must be emphasised that the Court can achieve little without maximum cooperation from states, including even non-state parties. Part 9 of the Statute sets out the various forms and levels of this cooperation. It has been a major test for the Court so far to obtain the cooperation of states under Articles 91 and 92 of the Statute to arrest persons it has issued arrest warrants for. To date, such wanted persons like Joseph Kony (Prosecutor v. Kony and Otti [2005]), President Al Bashir (Prosecutor v. Bashir [2009]) and Al Islam Gaddafi (Prosecutor v. Gaddafi [2011]) are still at large. In some cases, these persons are living normal lives, performing official functions and even visiting state parties, yet no arrests are being made. The damage this blatant disregard does to the image of such a fledgling Court is huge. It suggests to sceptics and to other wanted perpetrators that the Court is little more than a howling Rottweiler or at best just a vexing elephant in the room. There appears to be no surer way to institute a culture of impunity than for state officials to refuse to comply with the orders of the Court.

To this end, the Court could consider issuing ‘contempt of court’ notices against states that openly violating its order and reporting such states to the Assembly of State parties for further action. If the Court had universal jurisdiction, such breaches of the Court’s orders could be reported to the UN General Assembly to authorise the UNSC for appropriate action or sanctions. The Court’s boldness in this regard would be bolstered by the support of civil society and of the wider international community. As many state leaders would not willingly delegate powers to the Court that could ultimately jeopardise their own interests, the Court needs to perform its work especially within these early to the highest standards of credibility and impartiality. A wide public approval and civil society lobbying could be significant in winning the Court the required political capital to effect the reforms identified in this paper in the years ahead.

Conclusion

Notwithstanding the many criticisms and weaknesses of the Court, the one thing that remains undisputable is that it has put ‘the world on notice’ that impunity for certain crimes will no longer go unnoticed and unpunished. Essentially, as Kofi Annan aptly says, ‘it gives concrete expression to Francis Bacon’s famous dictum that not even a sovereign can make “dispunishable” those crimes which are malum in se – evil in themselves, “as being against the Law of Nature”’ (Radio Radical.it, 1999). As is common with many new institutions, the Court is still passing through a developmental strain, but it is learning fast from its mistakes and becoming more self-aware of its strengths and constraints. It can thus be expected that after this initial phase and taking into account many of the issues and flaws herewith considered, the impact of the Court could reverberate from The Hague to all corners of the world. But this ‘jewel’ in the crown of international criminal justice will have failed if the hope of ‘never again’ that greeted its inauguration in 2002 is allowed to be smothered by the cold ‘reality of again and again’ (Goldstone, 1997, p.316).

[1] The first case that was ever tried at the Court concerned the recruitment of child soldiers by Thomas Lubanga in the DRC. He was convicted in March 2012 and sentenced to a total of 14 years in prison.

[2] General Pinochet’s regime ended in 1990 and so he would have escaped the Court’s jurisdiction. Although criminal suits were filed against him in England, Spain and Chile during the late 1990s for various crimes against humanity committed during his ‘reign of terror’ in Chile from 1973 to 1990, he was declared medically unfit to stand trial and died in 2006.

[3] Article 27(1) of the Statute reads: ‘This Statute shall apply equally to all persons without any distinction based on official capacity,’ including ‘a Head of State or Government’. Article 27(2) states: ‘Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising jurisdiction over such a person.’

[4] The immunity attached to officials like presidents, heads of governments and diplomats, which insulates them from the criminal jurisdiction of both domestic and foreign courts while in office.

[5] This relates to the immunity accorded to state officials in relation to the exercise of their official duties.

[6] UNSC Res. 1422 (2002) UN Doc. S/RES/1422, para.1. It states that the UNSC ‘Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decide otherwise.’ This request was renewed on 12 June 2003, but never again thereafter.

[7] Article 98(1) of the Statute states: ‘The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.’

[8] Harry Rhea has argued that the word ‘un-sign’ misconstrues the intent of the letter signed on behalf of President Bush by the former US Undersecretary for Arms Control and National Security, John R. Bolton and delivered to the erstwhile UN Secretary General, Kofi Annan, on 27 April 2002. For Rhea the letter simply indicated the United States resolve not to accede to the Statute rather than the intent to cancel or withdraw its original signature. But Rhea’s argument is not persuasive considering the fact that the US together with other non-state parties was not obliged to make a formal deposition on non-ratification of the Statute to the Secretary General. Events at the time, particularly the ‘war on terror’ in Afghanistan and the looming Iraqi war may have induced the Bush Administration to retract the original signature to avert any vicarious liability.

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Nsereko, D. 2013. ‘The ICC and complementarity in principle’. Leiden Journal of International Law, 427

Peterson, J. 2007. ‘Unpacking Show Trials: Situating the Trial of Saddam Hussein’. Harvard International Law Journal, 48, p. 257

Prosecutor v Joseph Kony and Vincent Otti [Warrant of Arrest issued on 8 July 2005], Case No. ICC-02/04-01/05

Prosecutor v Omar Hassan Ahmad Al Bashir [Warrant of Arrest issued on 4 March 2009], Case No. ICC-02/05-01/09

Prosecutor v Saif Al-Islam Gaddafi [Warrant of Arrest issued on 27 June 2011], Case No. 01/11-01/11

Prosecutor v Thomas Lubanga Dyilo [14 March 2012], Case No. ICC-01/04-01/06

Prosecutor v Uhuru Muigai Kenyatta [13 March 2015], Case No. ICC-01/09-02/11

Prosecutor v Laurent Gbagbo and Charles Blé Goudé [10 November 2015], Case No. ICC-02/11-01/15

Prosecutor v William Samoei Ruto and Joshua Arap Sang [5 April 2016], Case No. ICC-01/09-01/11

Radio Radicale.It. 1999. Press Release L/2908 ‘Kofi Annan’s Speech before the Prepcom’ 17 February. Available at: www.radioradicale.it/exagora/icc-kofi-annans-speech-before-prepcom. [Accessed: 9 April 2016]

Raz, J. 1994. Ethics in the Public Domain: Essays in the Morality of Law and Politics. Oxford: Oxford University Press

Rhea, M. H. 2012. The United States and International Criminal Tribunals Cambridge: Intersentia

Roach, C. S. 2012. ‘Should the International Criminal Court impose Justice?’ Yale Journal of International Affairs,66

Robertson, G. 2002. Crimes Against Humanity: The Struggle for Global Justice London: Penguin

Robinson, D. 2015. ‘Inescapable dyads: why the International Criminal Court cannot win,’ Leiden Journal of International Law, 323

Rome Statute of the International Criminal Court, opened for signature on 17 July 1998, 2187 UNTS 90, (entered into force 1 July 2002)

Sands, P. 2003. From Nuremberg to The Hague: The Future of International Criminal Justice. Cambridge: Cambridge University Press

Shklar, N. J. 1964. Legalism: Law, Morals, and Political Trials. London: Harvard University Press

Smith, P. 2009. ‘Interview: Luis Moreno-Ocampo’, The Africa Report. 21 September. Available at: www.theafricareport.com/News-Analysis/interview-luis-moreno-ocampo-icc-prosecutor.html. [Accessed: 8 April 2016]

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UN Security Council Resolution 1422, 2002. UN Doc. S/RES/1422 (2 July 2002).

The Responsibility to Protect: Four Challenges on the Road Ahead

Dr. Adrian Gallagher, University of Leeds, Convenor BISA Working Group on Intervention and the Responsibility to Protect

I would like to say congratulations to the R2P Student Coalition here at the University of Leeds. Three years ago, Professor Jason Ralph and I designed a third year module PIED3502 The Responsibility to Protect and Prosecute and it is fantastic to see this has galvanised such interest amongst students. Since then the teaching team has expanded to include Dr. Cristina Stefan (formerly Badescu) and Dr. James Souter which reflects an increasing number of staff including Professors Edward Newman and Graeme Davies that focus on the R2P and related issues. Juxtaposed with this has been somewhat of a ‘bottom up’ R2P movement that has arisen with a dedicated team of intelligent, professional students establishing the Student Coalition. The latest instalment of their efforts is this exciting journal, co-founded with Dominique Fraser, and I would like to take this opportunity to also thank Professor Alex Bellamy for writing the introduction to the first issue. Hopefully, both the Coalition and the Journal can grow from strength to strength and as its founder, Georgiana Epure, departs for pastures new, we are fortunate that two of our current undergraduate cohort – Blake Lawrinson and Luke Bullock – who are to start MA programmes here at Leeds in September 2016.

The second issue provides an apt moment to consider the key issues, questions, and challenges that will face the Responsibility to Protect in the second decade since the World Summit Outcome in 2005. The purpose here is not to provide answers as such but instead to raise questions, issues and concerns facing the R2P in the 21st century. The reason for this is that because this is a student-led journal, I thought I would take this opportunity to identify four research agendas where future MA and Ph.D. students can contribute something significant, timely, and rigorous on the discourse.

  1. Climate Change and Mass Violence

The relationship between climate change, environmental factors, and mass violence remains overlooked and undertheorised. At first, it may seem somewhat odd to suggest that there could in fact be a relationship between climate and violence, yet further consideration begins to reveal existing relationships in historical examples as well as the potential for an increasing level of such violence in the 21st century. In 2009, former President of the International Network of Genocide Scholars, Juergen Zimmerer, held an inter-disciplinary conference at the University of Sheffield to discuss this topic. Six years on, Zimmerer published an edited volume Climate Change and Genocide Environmental Violence in the 21st Century in which it is claimed ‘environmental violence, including resource crises such as peak fossil fuel, will lie at the heart of future conflicts’.

With this in mind, it underpins a broader call for action in order to pre-empt the exacerbation of such violence in the 21st century. Within the context of International Relations, scholars such as Ken Booth[1] have placed the threat posed by climate change within ‘the great reckoning’ of the 21st century. Meanwhile, prominent analysts such as Naomi Klein[2] put forward a somewhat apocalyptic vision which, if accurate, provides a fertile foundation for mass violence. As it stands, the problem facing the R2P is that for all the talk of encouraging and helping states to fulfil their R2P there is quite simply no blue print for how international society can and should respond to the potentially civilization changing relationship between climate change and violence.

  1. A New United Nations Secretary General (UNSG)

The power of the UNSG has been well documented over the years. In relation to mass violence, it is clear that Kofi Annan and Ban Ki-moon have played pivotal roles in both establishing and facilitating the R2P. Evidently shaped by his personal experiences in relation to the Rwandan genocide, Annan facilitated the R2P through his UN High Level Panel and established the first Office of the Special Advisor on the Prevention of Genocide in 2004.[3] Putting the efforts of Annan in context, Roméo Dallaire stated that Annan is ‘genuine to the core’ and ‘dedicated to the founding principles of the UN and tireless in his efforts to save the organisation from itself.’[4] A part of which was making sure the R2P initiative did not die out in the aftermath of the 2003 Iraq War. The R2P-baton, if you will, was then passed onto Ban Ki-moon who has become a leading advocate of the R2P at the international level. Since 2009, he has released an annual R2P report which facilitated an informal interactive dialogue at the UN General Assembly as well as establishing a joint Office of the Special Advisors on the Prevention of Genocide and the R2P. All this effort begs the question, what next? Of course, only time will tell but whatever happens, the prominence of the R2P at the international level will undoubtedly be shaped by the new UNSG’s view of it. Furthermore, this calls for more research not just into how the UN facilitates ideas (as Thomas Weiss has written on[5]), but also the specific relationship between UNSGs and particular ideas and norms.

  1. Changing Power Balances

The R2P was born in an era of liberal imperialism. The key issue then is the extent to which changing power balances at the international level will shape the acceptance and resistance toward the R2P. The BRICS (Brazil, Russia, India, China, and South Africa) have been identified as key players but critically they do not speak with a unified voice as is often portrayed in the discourse. South Africa has been more comfortable with the R2P, yet criticised for flip flopping on Libya. India and Brazil continue to hold reservations about the use of force, with Brazil expressing concerns over pillar II actions – when the host state requests military assistance. China and Russia, of course, hold veto membership and continue to heavily influence the implementation of the R2P at the UN Security Council as witnessed by the division over Syria. Unable to go into all these issues here, I would point future researchers toward three special issues. To explain, in November 2013, the ESRC funded a 9 part-seminar series addressing this issue. The organisers Jason Ralph (University of Leeds), Aidan Hehir (University of Westminster), James Pattison (University of Manchester) and Adrian Gallagher (University of Leeds) went onto to publish three special issues related to this theme in 2015: Cooperation and Conflict, Criminal Law Forum and Global Responsibility to Protect.

  1. The Rise of Non-State Armed Groups

The 20th century was plagued by mass violence committed by governments. Sadly, they were very good at it and the perpetrators often got away with it. In his seminal study, Death by Government, R. J. Rummell calculated that 169,198,000 million were killed by their own government between 1900 and 1987, which he labelled as ‘democide’. Historically then, we have tended to theorise and conceptualise mass violence as a state crime precisely because states have the power to conduct mass killing. Yet, the rise of non-state actors and, in particular, more powerful non-state actors in the 21st century is changing the nature of mass violence. Although it is highly doubtful that groups such as DAESH, Boko Haram, Al-Shabaab and the Haqqani Network, will manage to destroy millions of people (unless they acquire weapons of mass destruction capability at some point in the future), they often display a clear intent to destroy groups. For example, earlier this year, in May 2016, the UK House of Commons, The US Congress, and The European Parliament have all declared that the DAESH are conducting genocide against the Yazidi community. Such actions would correlate with what Leo Kuper labelled as ‘genocidal massacres’ in his pioneering text Genocide: Its Political Use in the 20th Century.[6] As I have argued elsewhere, within the R2P framework, pillar II holds the most promise as states can assist other states to address the threat posed by non-state armed groups.[7] Yet, clearly more research is needed as we investigate the strengths and limitations of pillar II as well as its relationship with other norms such as the anti-terror norm in the future.

Overall, it would seem that mass violence will be a feature of the 21st century. In response, researchers have a responsibility to conduct significant, original, and rigorous studies that can help explain both its causes and responses. Good luck.

[1] See Booth, K. 2007. Theory of World Security, Cambridge: Cambridge University Press

[2] See Klein, N. 2014. This Changes Everything: Capitalism vs. the Climate, London: Allen Lane

[3] See UNSC RES. S/2004/567

[4] See Dallaire, R. 2003. Shake Hands with the DevilThe Failure of Humanity in Rwanda, Toronto: Random House Canada

[5] Weiss, T.  ‘How United Nations Ideas Changed History’, Review of International Studies36, Supplement S1, (October) pp. 3-23

[6] See Kuper, L. 1982. Genocide: Its Politics Use in the Twentieth Century, London: Yale University Press

[7] See Gallagher, A. 2015. ‘The Promise of Pillar II: Analysing International Assistance Under The Responsibility to Protect’, International Affairs, 91(6), pp.1259–1275

Caveat Visitator: Alternatives to Rome Statute Obligations for the Arrest of ICC Indictees

Ben Taylor, The University of Queensland, Australia

Ben Taylor is in the final year of his BA/LLB from the University of Queensland. He has previously interned at the International Criminal Court and the International Criminal Tribunal for the former Yugoslavia.

The recent visit of Sudanese President Omar al-Bashir to South Africa, and the ensuing international controversy at the prospect of his arrest there, has once again drawn attention to two trends in the International Criminal Court’s (ICC) relationship with states. Firstly, African state parties to the Rome Statute are increasingly frustrated with the ICC’s interventions in Africa, and the obligation they have to arrest a visiting indictee[1] such as al-Bashir, and are threatening to abandon their Rome Statute obligations as a result. The second is that unless the state in which an indictee resides is willing to arrest them, the Court is reliant on third states to arrest indictees if and when they visit, resulting in a situation of ‘caveat vistator’ – (accused) visitors beware.

This article will explore the obligations which states may have to arrest visiting ICC indictees which originate outside of the Rome Statute. In particular it will consider three sources of obligation: UN Security Council (UNSC) Resolutions, the obligation to punish genocide, and the obligation aut dedere aut judicare in a number of multilateral conventions. Ultimately it will attempt to answer what obligations may continue to force states to arrest and surrender an indictee like al-Bashir, even if the state in question has left the Rome Statute. However, it is important to note that the obligations to cooperate and arrest indictees discussed in this article have a complicated relationship with the personal immunities which may be held by indictees, such as head of state immunity in the case of al-Bashir, and that this relationship is contested, and outside the scope of this article.[2]

Al-Bashir, South Africa and the African Union

When al-Bashir arrived in Johannesburg for an African Union (AU) summit in June, a South African civil rights group[3] was able to obtain a High Court interim order instructing the South African government to take all necessary steps to prevent him from leaving the country, while the court decided on whether the government must arrest him (SALC v Minister of Justice and Constitutional Development, order of 14 June 2015). The next day the High Court ordered the government to arrest Al Bashir, but it was revealed that he had nevertheless been allowed to leave the country (SALC v Minister of Justice and Constitutional Development [2015]). The government was denied leave to appeal (Minister of Justice and Constitutional Development v SALC [2015]) and is now petitioning the Supreme Court, where the matter will be heard on 12 February 2016 (Southern African Litigation Centre, accessed 20 December 2015). Meanwhile, the ruling African National Congress party has resolved to support withdrawing South Africa from the Rome Statute (Reuters 11 October 2015).[4]

Rome Statute state parties are obliged to execute requests from the Court to arrest and surrender persons who are the subject of arrest warrants (Rome Statute 1998, art 89).[5] If they do not, the Court is able to make findings of non-cooperation and refer them to the Assembly of States Parties or to the UNSC where such a referral initiated the case (Rome Statute 1998, art 87(7); Regulations of the Court 2012, reg 109). In al-Bashir’s case, the Pre-Trial Chamber has made numerous referrals[6] without any meaningful sanction or reprimand from those bodies.

Instead, the AU has consistently attempted to stall the process. When in 2008 the Prosecutor first sought an arrest warrant against al-Bashir, the first sitting head of state to be indicted by the ICC,[7] the AU responded by calling on the UNSC to defer the process (AU Peace and Security Council 2008, para 11(i); endorsed in AU Assembly2009a, para 3). When the UNSC declined to do so (res. 1828, 2008, preamble), the AU went a step further, producing a Resolution reiterating its request and stating that AU Member States shall not cooperate with his arrest and surrender (AU Assembly 2009b, paras 9, 10).[8] Most recently, the AU has adopted a Kenyan proposal to ‘develop a roadmap’ for African nations to withdraw from the Court en masse (The Guardian 2 February 2016).

If African states do proceed to withdraw, the withdrawal process provided in the Statute does not discharge obligations which arose while they were parties, in particular ‘criminal investigations and proceedings in relation to which the State had a duty to cooperate’ which commenced before they withdrew (Rome Statute 1998, art 127(2). Nonetheless it is unclear whether the Court would be able to refer a state to the Assembly of State Parties or UNSC while no longer a party. And, more practically, governments may be unperturbed by the admonitions of an institution of which they are no longer a member.[9]

But what alternative obligations exist, and do they present the chance of meaningful enforcement, particularly at the International Court of Justice? In answering that question, this article will not be primarily concerned with the obligations of the state of nationality of the accused, or the state on whose territory alleged offences were committed, but with the situation of third states faced with the presence of an accused on their territory – whether staying permanently, such as Hissène Habré was in Senegal, or temporarily, as with al-Bashir’s visit to South Africa.

Security Council Obligations

The case against al-Bashir derives jurisdiction from UNSC Resolution 1593, which referred Sudan to the ICC in 2005, using the referral power in article 13(b) of the Rome Statute. Such UNSC Resolutions, acting under Chapter VII of the UN Charter, have the power to create binding obligations for any UN member state, and as Charter obligations they prevail over any other treaty obligation (Charter of the United Nations art 103; Libya v United Kingdom, Order of 14 April 1992, para 42). This means that the obligations UNSC Resolutions do create would defeat any Resolutions of the AU designed to discourage cooperation with the ICC, as was articulated by the ICC Pre-Trial Chamber when it admonished the Democratic Republic of the Congo for allowing al-Bashir to visit for a COMESA (Common Market for Eastern and Southern Africa) meeting, relying on the immunity afforded to AU heads of state (Al Bashir, Decision of 9 April 2014). The Chamber held that the UNSC, by resolving that Sudan shallcooperate with the Court, had in effect forced Sudan to relinquish head of state immunity, and that because it was a UNSC Resolution, it prevailed over any obligations created by the AU (Al Bashir, Decision of 9 April 2014, paras 25-31). The conclusion with regard to head of state immunity, and the relationship between obligations to cooperate and personal immunities is contested, are outside the scope of this article.[10]

However, in each of the UNSC referrals thus far (Sudan and Libya), binding obligations to cooperate with the ICC have only been imposed on those states referred. Both Resolutions decide that Sudan and Libya shall cooperate fully with ICC and the Prosecutor, but only urge other states to cooperate (SC res. 1593 2005, para 2; res. 19702011, para 5), which the Pre-Trial Chamber has acknowledged does not oblige them (Al Bashir, Decision of 10 October 2013, para 10). By contrast, the UNSC Resolutions creating the International Criminal Tribunals for Rwanda and the former Yugoslavia imposed cooperation obligations on all states (SC res. 827 1994, para 4; res. 955 1994, para 2). The Pre-Trial Chamber recognised this option was open to the UNSC, observing that it

may, by means of a resolution adopted under Chapter VII of the UN Charter, create an obligation to cooperate with the Court on those UN Member States which are not parties to the [Rome] Statute. In such a case, the obligation to cooperate stems directly from the UN Charter (Al Bashir, Decision of 10 October 2013, para 7).

It is worth noting that this potential is not limited to UNSC Resolutions which refer cases to the Court: the Council has previously instructed the UN Mission in the Democratic Republic of Congo (MONUSCO) to cooperate with the ICC (res. 2211 2015, para 9(d)), it could similarly decide that relevant states shall also cooperate. Indeed, the Office of the Prosecutor has noted (rather optimistically) that the Council could ‘specify particular measures to enable the Prosecutor to avoid strict requirements for state co-operation and to act with more authority to investigate a situation’ (2003, para 93).

Consequently, while the UNSC undoubtedly has the power to impose general obligations of cooperation on all states with respect to ICC referrals (or with respect to other ICC cases), the actual Resolutions which so far have referred situations to the Court have not done so, instead creating obligations only for the referred states.

Punishing Genocide

The Genocide Convention creates an obligation to punish genocide, and to cooperate with an ‘international penal tribunal’ but it is limited in scope (1948, art 6).[11] The International Court of Justice explained that the obligation is first to try before a state’s own courts persons accused of genocide which was committed on their territory, and secondly to cooperate with an ‘international penal tribunal’ if the state has accepted its jurisdiction (Bosnia v Serbia [2007], paras 184, 442-443). Unlike the obligation to extradite or prosecute (discussed below), it does not oblige states to confer or exercise jurisdiction over crimes not committed on their territory, nor to extradite persons on their territory for crimes committed elsewhere (Bosnia v Serbia [2007], para 447).

The limitations of this provision were made clear in the Bosnia v Serbia case, where Serbia was not held responsible for failing to punish persons accused of having committed the Srebrenica genocide because it did not occur on Serbian territory ([2007], para 442), but was held responsible for having failed in its obligation to cooperate with the Tribunal (an ‘international penal tribunal’, of which the parties to the Dayton Agreement had accepted the jurisdiction) by failing to arrest persons in their territory accused of genocide and hand them over to the tribunal ([2007], paras 443-449, 471). In particular, it found that failing to transfer Ratko Mladić meant it had breached this obligation ([2007], paras 448-449, 471).

Enforcement potential

To enforce this obligation at the International Court of Justice (described in more detail below), the Court’s jurisdiction may be founded on a compromissory clause. The Genocide Convention contains such a clause, which simply provides that disputes shall be submitted to the Court at the request of a party, without requirement for arbitration or specified time periods (1948, art 9). Because it obliges states to surrender genocidaires on their territory to the ICC if they have accepted its jurisdiction, the Convention firstly provides an alternative way of enforcing against states which are Rome Statute members. But further, it might seem to preclude enforcement against non-members. However, the International Court of Justice has clearly interpreted acceptance of jurisdiction as including the notion of being obliged to accept the jurisdiction of the tribunal, via UNSC Resolution ‘or some other rule of international law’ (Bosnia v Serbia [2007], para 446).[12] This interpretation suggests two potential avenues by which a non-Rome Statute party may be regarded as having accepted the ICC’s jurisdiction. The first is through a UNSC Resolution obliging states to cooperate with the court, as discussed above. The relevance of the Genocide Convention obligation in addition to the UNSC obligation discussed above would be the potential to seek enforcement at the International Court of Justice.

The second avenue is through the withdrawal process in article 127(2) of the Rome Statute. As noted above, states which withdraw from the Statute retain obligations in respect of ongoing cases. This could mean that a state which leaves the Rome Statute continues to be regarded as having accepted the Court’s jurisdiction for the purpose of cases which had commenced before their leaving. In short, for the purpose of the Genocide Convention, a state which leaves the Rome Statute may still be obligated to surrender alleged genocidaires such as al-Bashir. However, this interpretation would need to be tested. [13]

Thus in al-Bashir’s case (presently the only genocide indictee at the ICC), Sudan is the only state with the primary obligation to punish, and other states are obliged to surrender him if they have accepted the jurisdiction of the ICC. For the African states considering withdrawal from the Rome Statute, it is possible that they will continue to be under an enforceable obligation to surrender him, if another Genocide convention party is willing to test the case at the International Court of Justice.

Aut Dedere Aut Judicare

The aut dedere aut judicare principle can be traced to Hugo Grotius: ‘[w]hen appealed to, a State should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal’ (trans. Kelsey 1925, pp. 527). Now known as aut dedere aut judicare,[14] the obligation to extradite or prosecute appears in different forms in many different treaties. Its potential gained prominence after Belgium successfully sought its enforcement against Senegal at the International Court of Justice over the former President of Chad, Hissène Habré (Belgium v Senegal [2012]). The other relevant recent development was the conclusion of the International Law Commission’s work on the principle during its 66th session in 2014. The first of these cemented the possibility of enforcement of the obligation at the ICJ, while the second cemented its relationship and relevance to the ICC, both discussed below.

The International Law Commission attempted a categorisation of different forms of the obligation,[15] and concluded that attempting to harmonise the disparate treaty sources would be futile (2014, para 12). There is thus presently no single customary principle of aut dedere aut judicare concerning international crimes. But the individual treaties which overlap with Rome Statute crimes nonetheless provide independent sources of the obligation.

The Relevant Conventional Obligations:

Four conventional sources of the obligation aut dedere aut judicare overlap with the ratione materiae jurisdiction of the ICC: article 7(1) of the Torture Convention (1984)[16] and article 8(1) of the Hostages Convention (1979)[17]each provide an obligation to prosecute or extradite; article 11(1) of the Enforced Disappearances Convention (2006)[18] provides an obligation to prosecute, extradite or surrender to an international criminal tribunal whose jurisdiction the state has recognised; and each of the four Geneva Conventions of 1949 and the Additional Protocol I of 1977 oblige states to search for and prosecute grave breaches of those conventions or hand over the person in question to another High Contracting party which has established a prima facie case.[19]

Immediately apparent is that these obligations do not primarily concern cooperation with ICC arrest warrants: only the Convention against Enforced Disappearances obligation mentions a tribunal which the state has accepted the jurisdiction of (see the discussion above concerning this restriction in the Genocide Convention), while the Geneva Conventions specifically refer to handing over to ‘another High Contracting party.’ To complicate further, the Rome Statute itself distinguishes between the terminology of extradition to a state, and surrender to the Court (1998, art 102). Schabas explains that this is consistent with the ad hoc tribunals’ use of ‘surrender or transfer’, and that it is in response to “objections from States that have legislation, and sometimes even constitutional provisions, prohibiting the extradition of their own nationals.” (2011, p. 279) Similarly during the negotiation of the Geneva Conventions, the language of ‘handing over’ was preferred to ‘extradition’ in view of the variety of extradition laws and treaties in place, in contrast to the customary practice in connection with the United Nations War Crimes Commission (International Law Commission 2010, para 54).

Nevertheless, the International Law Commission takes the position that ‘the obligation to extradite or prosecute may be satisfied by surrendering the alleged offender to a competent international criminal tribunal’ (2014, para 34), describing this as a ‘third alternative’ (2014, para 27). The ‘third alternative’ notion draws support from the Draft Code of Crimes Against the Peace and Security of Mankind (1996, art 9),[20] the Council of Europe position that the principle ‘may be interpreted lato sensu to include the duty of the state to transfer the person to the jurisdiction of an international organ, such as the [ICC]’ (2006, p. 119), and the view of Judge Xue, that surrender to an international tribunal would not be contrary to the obligation because ‘such a tribunal is created precisely to fulfil the object and purpose of the Convention’ (Belgium v Senegal [2012], Dissenting Opinion of Judge Xue, para 42).[21]

The key to this interpretation is the understanding that extradition or handing over are not the primary obligation, but options to relieve the primary obligation to prosecute. As the International Court of Justice explained, in the context of the Convention against Torture, ‘extradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State’ (Belgium v Senegal [2012], para 95). Similarly surrender to an international court, unless inconsistent with the object and purpose of the relevant conventions (Belgium v Senegal [2012], Dissenting Opinion of Judge Xue, para 42), is an optional alternative to domestic prosecution.

The reason this option matters is that, by comparison to the Genocide Convention, the obligation to prosecute is irrespective of the nationality of the accused or the territory where the alleged crimes occurred. All that’s relevant is the accused person is present on the state party’s territory. If states want to avoid obligations to surrender to the ICC (or extradition to another state), they must prosecute.

Scope of the Offences 

However, the scope of these offences, and the nature of their overlap with Rome Statute crimes, is not quite as simple as it first appears. Torture, enforced disappearance, hostage taking and grave breaches of the Geneva Conventions are not recognised as distinct crimes in the Rome Statute, but rather fall into the constitutive elements of the main offences: war crimes, crimes against humanity, and genocide (leaving aside aggression). In some cases the convention definitions of the offences are more limited than the Rome Statute elements, particularly with regard to non-state perpetrators.

Torture may amount to a war crime (Rome Statute 1998, art 8(2)(a)(ii), art 8(2)(c)(i))[22] or crime against humanity (Rome Statute 1998, art 7(1)(f)),[23] and may be one of the constitutive acts of genocide, if coupled with the relevant special intent (Elements of the Crimes 2002, art 6(b) Element 1, fn 3). However, the convention definition of torture requires the relevant harm to be inflicted for the purpose of obtaining information, confession, or coercion and with the consent or acquiescence of a public official or person in an official capacity (Torture Convention 1984, art 1), whereas the Rome Statute definition only requires the infliction of the harm on a person under the accused’s custody or control (1998, art 81(2)(e)). The meaning of ‘public official’ has been interpreted by the Committee against Torture to include a quasi-government group exercising de facto government authority where there is no official government (Elmi v Australia [1998], para 6.5), but not where a functioning government is present (H.M.H.I. v Australia [2001], para 6.4).

Enforced disappearance may amount to a crime against humanity (Rome Statute 1998, art 7(1)(i)).[24] The convention defines enforced disappearance as perpetrated by agents of the state, or persons acting with the authorisation, support or acquiescence of the state (Enforced Disappearance Convention 2006, art 2)[25] whereas the Rome Statue definition requires perpetration by, or with the authorization, support of acquiescence of, a state or political organization (1998, art 7(2)(i)).

Grave breaches correspond to a category of Rome Statute war crimes (1998, art 8(2)(b)), but one which is expressly limited to situations of international armed conflict (1998, art 8(2)(b); Cassese 2008, pp. 87-88, 89). In respect of both the conventions and the Rome Statute, grave breaches cannot be committed, and the obligation to extradite or prosecute cannot be engaged, in purely internal armed conflict.

Finally, hostage taking may be charged as a war crime (Rome Statute 1998, art 8(2)(a)(viii) & art 8(2)(c)(iii)). However, the scope of the Hostages Convention is limited by article 12 to situations in respect of which the Geneva Conventions do not create a ‘prosecute or extradite’ obligation (1979). As the Geneva Convention obligations are limited to international armed conflict (see above), the application of the Hostages Convention obligation is effectively limited to non-international armed conflict (Dinstein 2014, p. 170; Rosenstock 1980, p. 184; R v Zardad (Faryadi) [2004], paras 2, 10, 15). In this respect it plays something of a ‘gap filling’ role to the Geneva Conventions (Tuck 2015, pp. 313-314).

Further, the Hostages Convention does not apply to acts of hostage taking committed by and against nationals of the same state, within that state, where the offender is found in the territory of that state (1979, art 13). It will thus only become relevant to a person accused of committing an offence where there is some international aspect, or they leave the state to another which is a party to the convention. Thus, for a state which finds a person on their territory who is alleged to have committed an offence elsewhere, the obligation to prosecute or extradite applies in the same manner as the other conventions.

This variety of caveats and qualifications can create the impression of a loose patchwork of obligations. But these diverse offences are crucial because, simply put, it only takes one relevant offence among many in a warrant or indictment to trigger the obligation to prosecute or extradite that person. For example, in Belgium v Senegal, although the Court was only concerned with obligations relating to torture as defined in the Convention, the initial extradition request stemmed from an international arrest warrant issued by a Belgian investigating judge which included, as well as torture, serious violations of international humanitarian law, genocide, crimes against humanity and war crimes ([2012], para 21). Because the practice of ICC indictments thus far has been to allege a multiplicity of charges and engage in cumulative and alternative charging,[26] it is foreseeable that most indictments will touch upon one of the relevant convention offences discussed.

Enforcement

Necessary for a state to seek enforcement before the International Court of Justice against a state hosting an indictee is both jurisdiction and standing. The Court’s jurisdiction is derived from the consent of states, meaning it can be invoked through compromissory clauses, or declarations assuming the compulsory jurisdiction of the court (Statute of the International Court of Justice, art 36). Such compromissory clauses appear in the Convention against Torture (1984, art 30(1)), the Convention against Enforced Disappearances (2006, art 42(1))[27] and the Convention against Hostage taking (1979, art 16(1)), in near identical terms (note that each allows states to opt out by declaration). They provide that any dispute which cannot be settled by negotiation shall be submitted to arbitration, and if this is not possible within six months of the request for arbitration, the dispute may be referred to the Court.

The Geneva Conventions by contrast do not contain any compromissory clause, and thus any action at the International Court of Justice based on their obligations would require reciprocal declarations of acceptance of jurisdiction.[28] Suffice it to say that state parties to those conventions with compromissory clauses may bring disputes between one another before the ICJ, provided neither party has declared themselves not bound by the compromissory clause.

Belgium v Senegal provided the key to potential enforcement by upholding the erga omnes character of aut dedere aut judicare obligations. It is critical because any party to the treaties can seek enforcement against another state party hosting an indictee, whereas on a stricter interpretation of standing only a state with valid jurisdiction over the crime, which had previous requested extradition and been refused, could seek enforcement.[29] The Court in Belgium v Senegal affirmed that obligations owed erga omes partes create a legal interest for every state party to seek enforcement against any other ([2012], paras 68-70).[30] The Court held, looking to the object and purpose of the Convention against Torture, that in common with the Genocide Convention, states parties share a common interest in ending the relevant crimes ([2012], paras 68-70).[31] The preambles to the Enforced Disappearances Convention (2006) and Hostages Convention (1979) reveal similar statements of object and purpose.[32]

As noted above, enforcement of the Geneva Conventions at the Intertantional Criminal Court is difficult because of the lack of compromissory clause. However, if states have made a declaration of acceptance of jurisdiction, there is at least one international decision indicating that international humanitarian law generally creates obligations erga omnes, and the relevant treaties (in this case the Geneva Conventions) create erga omnes contractanes (erga omnes partes), as opposed to synallgmatic (reciprocity based) obligations (Kupreškić et al. Decision of 17 February 1999).[33]

Therefore, generally state parties can enforce against other state parties the above conventions if an indictee visits their territory. In the case of al-Bashir’s visit to South Africa, his first arrest warrant includes the charge of torture as a crime against humanity (Al Bashir, Warrant of Arrest [2009]), and South Africa is a signatory to the Convention against Torture (and has made no reservation to article 7). Any other state party to the Convention against Torture could thus seek enforcement of the obligation against South Africa, even if it chooses to leave the Rome Statute.

Both the Hostages Convention and Convention against Torture boast large proportions of the international community as state parties (174 and 158 states respectively, at time of writing), whereas the Convention against Enforced Disappearances is comparatively less well ratified (51 states at time of writing).

Finally, a more comprehensive approach could appear in a future convention on Crimes against Humanity. The Special Rapporteur on Crimes Against Humanity, Mr. Sean Murphy, has indicated that a second report on the topic planned for 2016 would cover, inter alia, obligations to criminalise, extend national jurisdiction and extradite or prosecute (International Law Commission 2015b, para 179).[34] Currently the International Law Commission has provisionally adopted the first four articles of a draft convention and commentaries to them (2015a, para 113-114).[35] The articles thus far define crimes against humanity in a manner closely following the Rome Statute, and provide obligations to prevent and punish (International Law Commission 2015a, para 116). However, the Special Rapporteur’s proposed timeline anticipates a first reading of the complete draft articles by 2018, and a second reading by 2020 (International Law Commission 2015b, para 182), meaning the entry into force of binding conventional obligations concerning crimes against humanity in general is still on the far horizon.

Enforcement in National Courts

The focus of this article has been on state obligations in international law, and their enforcement in the international arena. But the case of the Pretoria High Court ordering al-Bashir’s arrest is a reminder that national courts and investigative organs have a significant role to play in enforcing these obligations, even where the political will may be lacking at the government level. The audacity of a civil society group seeking the arrest of a sitting head of state, and very nearly achieving it through court order, calls to mind the Pinochet case, where Scotland Yard executed a Spanish arrest warrant over the former Chilean dictator while visiting the UK, despite his close ties to the former Thatcher government. Although Pinochet was ultimately allowed to return to Chile for health concerns, the House of Lords made a striking blow against head of state immunity for torture. (R v Evans, ex parte Pinochet Ugarte [1999] 38 ILM 68 (Q.B. Div’l Ct. 1998); R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte [1998] 3 WLR 1456; annulled by R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [1999] 2 WLR 272; R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827)

The reasoning of the Pretoria High Court equally makes for a striking statement of the power of courts against executives. After setting out the reasons for making the arrest order of 15 June 2015, the Court discusses the ramifications of the fact that al-Bashir was allowed to leave the country despite the interim order. After reminding the Respondents – 12 organs of government including Ministers and Directors General – of the supremacy of the constitution and the rule of law (SALC v Minister of Justice and Constitutional Development [2015], para 37.1), the Court makes this rebuke:

A democratic State based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by Court orders. A Court is the guardian of justice, the corner-stone of a democratic system based on the rule of law, if the State, an organ of State or State official does not abide by Court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues. ([2015], para 37.2)[36]

This case illustrates that the importance of the role of national actors, be they domestic courts, independent prosecutors or civil society should not be underestimated.

Conclusion

So, Caveat Vistator: but indicted visitors must beware not just Rome Statute membership where they visit, but parties to the Conventions against Torture, Enforced Disappearances and Hostage taking, to the Geneva Conventions and Additional Protocol I, former members of the Rome Statute who remain members of the Genocide Convention, and any state the Security Council decides shall cooperate with the ICC. In all of these cases there are existing obligations which have sufficient clarity to say that they bind states, and present a good chance of enforcement.

It is true that none of these are as clear or uncomplicated as would be ideal. Utopians can hope for stronger UNSC Resolutions, such as in the manner envisaged by the Office of the Prosecutor in its informal expert paper (2003, para 93), further development of the extradite or prosecute obligation towards the position articulated in Article 9 of the Draft Code of Crimes Against the Peace and Security of Mankind (1996), and a Convention against Crimes against Humanity earlier than 2025. Further, this article has not fully dealt with all of the complexities of this broad area – outside the scope of this piece have been the current position of head of state immunity, the interaction between enforcement at the International Court of Justice and the Rome Statute provisions for settlement of disputes (1998, art 119) questions of complementarity (such as if a non-state party chooses to prosecute an ICC indictee), and the relevance, if any, of regional schemes for extradition[37] – each of these are topics for another day.

17th and 18th Century piracy’s gift to international law was the concept of hostes humani generis – the perpetrators of certain crimes, as the common enemies of mankind, were to find no safe haven without jurisdiction to punish them (Cassese 2008, p. 28). The experience of al-Bashir demonstrates a more modest reality: that modern international criminals face a gradually tightening ‘web’ of states where visiting risks arrest and surrender, thus far generally considered to consist of state parties to the Rome Statute. But the purpose of this article has been to show that this web is, at least at law, far wider. This realisation is critical for those advancing the universalisation of international criminal law, and the arrest of indictees like Omar al-Bashir.

References cited

Treaties

Charter of the United Nations.

Statute of the International Court of Justice.

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).

International Criminal Court, Elements of Crimes, Doc No ICC-ASP/1/3(Part.II-B) (adopted 9 September 2002).

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Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).

International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, 2716 UNTS 3 (entered into force 23 December 2010).

International Convention Against the Taking of Hostages, 17 December 1979, 1316 UNTS 205 (entered into force 3 June 1983).

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International Court of Justice Cases

Questions Relating to the Oligation to Prosecute or Extradite (Belgium v Senegal) (Judgement) [2012] ICJ Rep 422.

Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgement) [2007] ICJ Rep 43.

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) (Order of 14 April 1992) [1992] ICJ Reports 114.

Case Concerning Barcelona Traction, Light, and Power Company, Ltd (Belgium v Spain) (Second Phase) [1970] ICJ Reports 3.

International Criminal Court Cases

Prosecutor v Al Bashir (Warrant of Arrest) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-1, 4 March 2009).

Prosecutor v Al Bashir (Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-109, 27 August 2010).

Prosecutor v Al Bashir (Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-129, 12 May 2011).

Prosecutor v Al Bashir (Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with respect to the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-139, 12 December 2011).

Prosecutor v Al Bashir (Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al-Bashir) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-140-tENG, 13 December 2011).

Prosecutor v Al Bashir (Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-02/05-01/09-151, 26 March 2013).

Prosecutor v Al Bashir (Decison regarding Omar Al Bashir’s Potential Travel to the Federal Republic of Ethiopia and the Kingdom of Saudi Arabia) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-164, 10 October 2013).

Prosecutor v Al Bashir (Decison on the Cooperation of the Democratic Republic of the Congo regarding Omar Al Bashir’s arrest and surrender to the Court) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-195, 9 April 2014).

Prosecutor v Bemba (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-01/05-01/08-424, 15 June 2009).

International Criminal Tribunal for the former Yugoslavia Cases

Prosecutor v Milošević (Indictment) (International Criminal Tribunal for the Former Yugoslavia, Case No IT-99-37, 22 May 1999).

Prosecutor v Kupreškić et al. (Decision on Evidence of the Good Character of the Accused and the Defence of Tu Quoque) (International Criminal Tribunal for the Former Yugoslavia, Case No IT-95-16, 17 February 1999).

Prosecutor v Kupreškić et al. (Trial Judgement) (International Criminal Tribunal for the Former Yugoslavia, Case No IT-95-16, 14 January 2000).

Prosecutor v Furundžija (Trial Judgement) (International Criminal Tribunal for the Former Yugoslavia, Case No IT-95-17/1, 10 December 1998).

Special Court for Sierra Leone Cases

Prosecutor v Taylor (Indictment) (Special Court for Sierra Leone, Case No SCSL-03-01-I, 7 March 2003).

Communications of the Committee against Torture

Committee against Torture, Decision: Communication No. 120/1998, UN Doc CAT/C/22/D/120/1998 (‘Elmi v Australia’).

Committee against Torture, Decision: Communication No.117/2001, UN Doc CAT/C/28/D/177/2001 (‘H.M.H.I. v Australia’).

United Kingdom Cases

R v Evans, ex parte Pinochet Ugarte [1999] 38 ILM 68 (Q.B. Div’l Ct. 1998)

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte [1998] 3 WLR 1456;

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [1999] 2 WLR 272;

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827.

R v Zardad (Faryadi), Ruling on the Taking of Hostages Act 1982 (Unreported, Central Criminal Court, Treacy J) 5 October 2004. Available from: <www.redress.org/downloads/news/zardad%205%20oct%202004.pdf>. [10 January 2016]

South African Cases

Southern Africa Litigation Centre v Minister of Justice and Consitutional Development (Unreported, High Court, Fabricius J) 14 June 2015 (‘Interim Order’).

Southern Africa Litigation Centre v Minister of Justice and Consitutional Development [2015] ZAGPPHC 204 (24 June 2015) (High Court).

Minister of Justice and Consitutional Development v Southern Africa Litigation Centre [2015] ZAGPPHC 675 (16 September 2015) (High Court).

International Documents

International Law Commission, Survey of multilateral conventions which may be of relevance for the work of the International Law Commission on the topic “The obligation to extradite or prosecute (aut dedere aut judicare)” Study by the Secretariat, UN Doc A/CN.4/630 (2010).

International Law Commission, Chapter VI: The obligation to extradite or prosecute (aut dedere aut judicare), in Report of the International Law Commission, UN Doc A/69/10 (2014).

International Law Commission, Chapter VII: Crimes against humanity, in Report of the International Law Commission, UN Doc A/70/10 (2015a).

International Law Commission, First report on crimes against humanity By Sean D. Murphy, Special Rapporteur, UN Doc A/CN.4/680 (2015b).

‘Draft Code of Crimes Against the Peace and Security of Mankind’ [1996] II(2) Yearbook of the International Law Commission 17.

Council of Europe, Extradition, European Standards: Explanatory notes on the Council of Europe convention and protocol and minimum standards protecting persons subject to transnational criminal proceedings (Council of Europe Publishing, Strasbourg, 2006).

Office ot the Prosecutor, Informal expert paper: Fact-finding and investigative functions of the office of the Prosecutor, including international co-operation (2003).

Multilateral Treaties Deposited with the Secretary-General, United Nations, New York (ST/LEG/SER.E) Available from: <https://treaties.un.org/Pages/ParticipationStatus.aspx>. [20 December 2015].

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African Union Peace and Security Council, Communique of the 142nd Meeting of the Peace and Security Council (PSC/MIN/Comm (CXLII)), 21 July 2008.

African Union Peace and Security Council, Communique of the 175th Meeting of the Peace and Security Council(PSC/PR/Comm (CLXXV)), 5 March 2009.

African Union Assembly, Decision on the Application by the International Criminal Court Prosecutor for the Indictment of the President of Sudan (Assembly/AU/Dec.221 (XII)), 3 February 2009a.

African Union Assembly, Decision on the Meeting of the African States Parties to the Rome Statute of the International Criminal Court (ICC), (Assembly/AU/Dec. 245(XIII) Rev. 1), 3 July 2009b.

African Union Assembly, Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/ AU/Dec.270(XIV) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court (ICC), (Assembly/AU/Dec.296(XV)), 27 July 2010.

Books and Journal Articles

Akande, D. 2009, ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al-Bashir’s Immunities’, Journal of International Criminal Justice, vol 7, p. 333.

Cassese, A. 2008, International Criminal Law, 2nd ed, Oxford University Press.

Dinstein, Y. 2014, Non-International Armed Conflicts in International Law, Cambridge University Press.

Gaeta, P. 2009, ‘Does President Al Bashir Enjoy Immunity from Arrest?’, Journal of International Criminal Justice, vol 7, p. 315.

Grotius, H 1925, De Jure Belli ac Pacis, trans. F. Kelsey, Clarendon Press.

Rosenstock, R. 1980, ‘The International Convention against the Taking of Hostages: Another International Community Step against Terrorism’, Denver Journal of International Law and Policy, vol. 9, p. 169.

Tuck, D. 2015, ‘Taking of Hostages’ in The 1949 Geneva Conventions: A Commentary, eds A. Clapham, P. Gaeta, M. Sassòli, Oxford University Press.

Schabas, W. 2011, An Introduction to the International Criminal Court, 4th ed, Cambridge University Press.

War Crimes Research Office, International Criminal Court Legal Analysis and Education Project 2010, The Practice of Cumulative Charging at the International Criminal Court, American University Washington College of Law.

News Reports

Immanuel, S. 2015, ‘Namibia: Cabinet Affirms ICC Withdrawal’, AllAfrica 24 November. Available from: <http://allafrica.com/stories/201511240340.html&gt;. [10 December 2015].

Reuters, 2015, ‘South Africa plans to leave International Criminal Court’, 11 October. Available from: <http://www.reuters.com/article/us-safrica-icc-idUSKCN0S50HM20151011&gt;. [20 December 2015].

Southern African Litigation Centre, ‘South Africa/Sudan: Seeking Implementation of ICC Arrest Warrant for President Bashir’. Available from: <http://www.southernafricalitigationcentre.org/cases/ongoing-cases/south-africasudan-seeking-implementation-of-icc-arrest-warrant-for-president-bashir/&gt;. [20 December 2015].

The Guardian, 2016, ‘African Union members back Kenyan plan to leave ICC’, 2 February. Available from: <http://www.theguardian.com/world/2016/feb/01/african-union-kenyan-plan-leave-international-criminal-court&gt;. [2 February 2016].

Notes

[1]       The Rome Statute itself does not make use of the terms indictment or indictee, instead referring to ‘persons subject to a warrant of arrest’. See, e.g. Rome Statute 1998, art 60(1). Indictee is used here for ease of reference.

[2]        See Gaeta 2009; contra Akande 2009 and Al Bashir, Decision of 9 April 2014.

[3]       The Southern African Litigation Centre (‘SALC’), accessed at <http://www.southernafricalitigationcentre.org/cases/ongoing-cases/south-africasudan-seeking-implementation-of-icc-arrest-warrant-for-president-bashir/&gt; on 20 December 2015.

[4]       Similarly, on the 23rd of November it was announced that the Namibian cabinet had approved a recommendation for that country to leave the Rome Statute: (Immanuel, 2015).

[5]       There is both a general obligation to cooperate with the Court in Article 86, and specific obligations to cooperate with requests from the Court in Article 87, of which a request for arrest and surrender provided for in Article 89 is a species.

[6]       See Al Bashir, Decision of 9 April 2014, and previously, Decision of 27 August 2010; Decision of 12 May 2011; Decision of 12 December 2011; Decision of 13 December 2011; Decision of 10 October 2013; and Decision of 26 March 2013.

[7]       Often referred to as the first sitting head of state to be indicted by any international criminal tribunal, however the initial indictment of Slobodan Milošević at the ICTY for crimes in Kosovo came in May 1999, while he was still president of Serbia. His indictment was later amended to include crimes in Croatia and Bosnia and Herzegovina after his fall from power and arrest in Serbia. See Milošević, Indictment [1999]. Similarly Charles Taylor was indicted by the SCSL while he was still President of Liberia. See Taylor, Indictment [2003].

[8]       Note that Chad entered a reservation to the relevant non-cooperation paragraph. The position of non-cooperation was repeated in July of the following year: AU Assembly 2010, para 5.

[9]       As the Pre-Trial Chamber has recognised, one imagines wistfully, “the Court has no enforcement mechanism and thus relies on States’ cooperation, without which it cannot fulfil its mandate and contribute to ending impunity.” Al Bashir, Decision of 10 October 2013, para 8.

[10]        See Gaeta 2009; contra Akande 2009.

[11]       “Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”

[12]       Bosnia v Serbia, para 446: “The question whether the Respondent must be regarded as having “accepted the jurisdiction” of the ICTY within the meaning of Article VI must consequently be formulated as follows: is the Respondent obliged to accept the jurisdiction of the ICTY, and to co-operate with the Tribunal by virtue of the Security Council resolution which established it, or of some other rule of international law? If so, it would have to be concluded that, for the Respondent, co-operation with the ICTY constitutes both an obligation stemming from the resolution concerned and from the United Nations Charter, or from another norm of international law obliging the Respondent 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 Court goes on to find that the FRY was under an obligation to co-operate with the ICTY first from the coming into force of the Dayton Accords, and that later its joining the United Nations provided a further basis of obligation to cooperate, due to the Security Council resolution: para 447.

[13]       A hypothetical opposing view could be that the Court in Bosnia v Serbia was speaking to the specific case of a tribunal created by Security Council resolution, rather than treaty: “When drafting the Genocide Convention, its authors probably thought that such a court would be created by treaty: a clear pointer to this lies in the reference to “those Contracting Parties which shall have accepted [the] jurisdiction” of the international penal tribunal.” para 445. This view could suggest than the Court’s subsequent interpretation is limited to the case of a tribunal established by Security Council resolution, and that in the context of the ICC ‘acceptance of jurisdiction’ means simply membership of the Rome Statute.

[14]       The International Law Commission notes that judicare has come to replaced punire “in order to reflect that an alleged offender may be found not guilty.” (2014, para 2).

[15]       The International Law Commission divides instances of the obligation into a typology of four models of obligation. Broadly, these are a) agreements to extradite in respect of certain crimes, with prosecution as a secondary obligation if extradition is refused, b) regional extradition treaties, c) the 1949 Geneva Conventions and the 1977 Additional Protocol I, and d) the ‘Hague Formula’, derived from the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, and which appears in most of the Conventions discussed below (2014, paras. 6-10). Alternatively, Judge Yusuf in his separate opinion in Belgium v Senegal articulated two categories of conventions creating the obligation: a) those which impose first an obligation to extradite, where prosecution becomes an obligation only after extradition has been refused, and b) those which impose a primary obligation to prosecute, with extradition as an alternative to relieve that obligation: ([2012] paras 19-22).

[16]       “The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in Article 4 is found shall in cases contemplated in Article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.”

[17]       “The State Party in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State.”

[18]       “The State party in the territory under whose jurisdiction a person alleged to have committed an offence of enforced disappearance is found shall, if it does not extradite that person or surrender him or her to another State in accordance with its international obligations or surrender him or her to an international criminal tribunal whose jurisdiction it has recognized, submit the case to its competent authorities for the purpose of prosecution.”

[19]       “Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.”: Articles 49, 50, 129 and 146 of Geneva Conventions I, II, IIIand IV respectively; “The provisions of the Conventions relating to the repression of breaches and grave breaches, supplemented by this Section, shall apply to the repression of breaches and grave breaches of this Protocol.”: Additional Protocol I, art 85(1).

[20]       “Without prejudice to the jurisdiction of an international criminal court, the State party in the territory of which an individual alleged to have committed a crime set out in article 17 [genocide], 18 [crimes against humanity], 19 [crimes against United Nations and associated personnel] or 20 [war crimes] is found shall extradite or prosecute that individual.” The Draft Code later became the basis for the Rome Statute, hence replacing the obligation aut dedere aut judicare with cooperation obligations.

[21]       Judge Xue dissents on other points, namely admissibility and the nature of obligations erga omnes.

[22]       The necessary additional requirements of torture as a war crime are observed by Cassese (2008, pp. 149-150).

[23]       The necessary additional requirements of torture as a crime against humanity are observed by Cassese (2008, pp. 149-150).

[24]       That widespread or systematic practice of enforced disappearance constitutes a crime against humanity is reaffirmed in the preamble and article 5 of the Enforced Disappearance Convention.

[25]       Note that article 3 encourages combatting disappearances perpetrated by non-state actors.

[26]       Cumulative charging however is a controversial practice, see Bemba (Decision of 15 June 2009); and the contrary view: War Crimes Research Office (2010).

[27]       “Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation or by the procedures expressly provided for in this Convention shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.”

[28]       As an example, Judge Sebutinde found that declarations accepting jurisdiction by both parties to the Belgium v Senegal case could have founded jurisdiction ([2012], Separate Opinion of Judge Sebutinde, paras 32-40).

[29]       For a clear articulation of this strict alternative view, see Belgium v Senegal [2012], Dissenting Opinion of Judge Xue, paras. 12-23.

[30]       The nature of erga omnes obligations was previously explained by the Court (in obiter) in Belgium v Spain ([1970], para 33).

[31]       Also see Furundžija [1998] paras 151-152.

[32]       Hostages Convention, preamble: “Being convinced that it is urgently necessary to develop international co-operation between States in devising and adopting effective measures for the prevention, prosecution and punishment of all acts of taking of hostages as manifestations of international terrorism”; Enforced Disappearances Convention, preamble: “Determined to prevent enforced disappearances and to combat impunity for the crime of enforced disappearance”.

[33]       Reiterated in Kupreškić et al., Trial Judgement [2000] para 23: “This body of law does not lay down synallagmatic obligations, i.e obligations based on reciprocity, but obligations erga omnes (or, in the case of treaty obligations, obligations erga omnes contractantes) which are designed to safeguard fundamental human values and therefore must be complied with regardless of the conduct of the other party or parties.”

[34]       “A second report, to be submitted in 2016, will likely address… the obligation to submit the case to its competent authorities for the purpose of prosecution, unless the person is extradited to another State or surrendered to an international court or tribunal…”

[35]       The draft articles were adopted at the 3263rd meeting on 5 June 2015. The commentaries were adopted at the 3282nd meeting on 3 August 2015.

[36]       To add insult to (symbolic) injury, the Court awards costs against the Respondents “on a pro-bono basis” at para 2, and invites the NDPP to consider criminal charges at para 39.

[37]       See, e.g. Council of Europe (2006, pp. 119-122).

The Role of Legitimacy in UN Security Council Decision to “Re-Hat” the African Union’s Peacekeeping Mission in the Central African Republic

Dominique Fraser, The Graduate Institute of International and Development Studies, Switzerland

Dominique Fraser is an editor of the R2P Student Journal. Her article is an excerpt from an Honours thesis, which included the case studies of Darfur and Somalia. The thesis was written in 2013/14 at the University of Queensland under the supervision of Prof. Alex Bellamy, Dr. Charles Hunt and Dr. Phil Orchard.

The reasons for the United Nations (UN) Security Council’s decision to assume responsibility over an African Union (AU) peacekeeping mission are varied and complex. The present article discusses the phenomenon through the lens of legitimacy. It argues that legitimacy concerns were central to the UN Security Council’s decision to re-hat[1] the AU’s peacekeeping mission in the Central African Republic in 2014. These legitimacy concerns impacted the Council’s decision in three ways. First, France advocated for a takeover as it wished to withdraw its troops but was aware that the AU’s peacekeeping mission MISCA[2] was unable to protect civilians on its own. The fact that MISCA was at best unable to protect civilians and at worst responsible for civilian insecurity convinced the US of the need for the UN to assume responsibility. Second, MISCA and France, which had also sent troops with its Operation Sangaris, had succeeded in establishing a basic level of security and a new transitional government had initiated the political process. These changes on the ground improved the likelihood of a successful UN peacekeeping mission, which would afford the Council increased legitimacy. Third, France’s support for a UN takeover were influenced by legitimacy concerns as France’s intervention in the Central African Republic was unwelcome by many locals on the ground, who saw it as illegitimate meddling. These three factors impacted on the UN Security Council’s decision to authorise MINUSCA[3] on the 10th of April 2014 by Resolution 2149, less than a year after MISCA had been established and despite AU resistance to the transfer.

Legitimacy

Legitimacy is a key concept in the practice of international relations but has largely been neglected in its study (Clark, 2005, p.3; Zaum 2013: 4). For the purpose of this article, I use Clark’s (2005, p.2) definition of legitimacy as a ‘rudimentary social agreement about who is entitled to participate in international relations, and also about appropriate forms in their conduct’. For the UN Security Council, being seen as both the legitimate actor and behaving in a legitimate way is vitally important, as the Council depends on the international community – international organisations, states, nongovernmental organisations and civil society – to carry out its decisions (Welsh and Zaum, 2013, p.69). Its authority, therefore, relies on a perception of legitimacy (Hurd 2002: 46; Hurd and Cronin, 2008, p.3). According to Welsh and Zaum, (2013, p.71) the Council uses various ‘legitimation practices’ to safeguard against a loss of legitimacy. They define these practices as ‘a conscious attempt by states—either collectively or individually—to enhance an aspect of the Council’s legitimacy’ (Welsh and Zaum 2013, p.71). In this piece, the takeover of a peacekeeping mission from the AU is discussed as such a Security Council legitimation practice.

Legitimacy concerns also impact on the national interests of the Security Council’s five permanent members (P5): the US, UK, France, Russia and China. These members shape the Council’s agenda to a large degree. In contrast to the ten elected members, the P5 possess veto power, which allows them to block decisions (Boulden, 2006, p.412). They are also the ‘penholders’[4] on various country situations and thematic issues and have in-depth knowledge of Council working methods along with the backing of large permanent missions in New York (Lieberman, 2013). The P5’s national interests have largely been framed by realist conceptions around security and economic interests (see Andersson, 2000). However, as will be argued here, the P5 are more likely to advocate a takeover of an AU peacekeeping mission when their national interests are shaped by legitimacy concerns, as was the case in the Central African Republic.

Case Study: The Peacekeeping Takeover in the Central African Republic

Background

The Central African Republic has seen ‘violent changes, corruption, the non-respect of human rights [and] repression of free political expression’ since its independence from France in 1960 (Commission of Inquiry, 2014, p.14). The current crisis began in December 2012, when a coalition of between 1,000 and 3,000 rebels calling themselves the Séléka (‘Alliance’) advanced on the capital Bangui (Warner, 2013). The Séléka was a group of loosely organised, predominantly Muslim combatants who fought to address religious marginalisation (HRW, 2013; ICG, 2013, p.3). The group was allegedly trained and aided by Chad, which has a long history of political and military involvement in the neighbouring country (Herbert, Dukhan and Debos, 2013, p.8).

By early 2013, the offensive had reached the capital Bangui (Warner, 2013). On the 23rd March, French troops deployed to secure the airport, calling on both the AU and the UN to address the unfolding crisis (Meilhan and Botelho, 2013). A day later, the Séléka overthrew president François Bozizé and installed their leader Michel Djotodia (ICG, 2013, p.3). Almost immediately, the Séléka began ‘killing civilians, raping women, and settling scores with members of the [army]’ (HRW, 2013). Most of the attacks were directed against the majority Christian population (HRW, 2013). In response, some Christian communities organised themselves into self-defence groups called anti-balaka (‘anti-machete’) (ICG, 2013, p.3). These groups then engaged in attacks against Muslim individuals and communities (ICG, 2013, p.3).

The report of the International Commission of Inquiry (2014. P.19) found that the killings did not constitute genocide, but declared that ‘ethnic cleansing of the Muslim population by the anti-balaka constitutes a crime against humanity’. Importantly, the anti-balaka, the Séléka and the national army were all engaged in ‘serious violations of international humanitarian law and gross abuses of human rights’ (Commission of Inquiry. 2014, p.7). The violence resulted in the death of between 3,000 and 6,000 people, the internal displacement of 440,000 and 190,000 refugees, as well as at least 1.5 million people who faced severe food insecurity (UN News, 2015).

On 19 July 2013, the AU Peace and Security Council (2013) authorised 3,500 peacekeepers to help the small and ineffective peacekeeping mission MICOPAX[5] deployed in the Central African Republic by the Economic Community of Central African States since 2008. The AU’s peacekeeping mission MISCA deployed alongside 2,000 French troops in December (Nichols, 2015). Both MISCA and the French Operation Sangaris were authorised by UN Security Council Resolution 2127 in the same month (UNSC, 2013b).

Five months after the establishment of MISCA, a modicum of stability had been established and both the transitional leaders of the Central African Republic and France repeatedly called on the UN Security Council to transition MISCA to a UN peacekeeping mission due to its inability to protect civilians (Al Jazeera, 2014; Kromah, 2014; UNSG, 2014a, p.11). On the 10th of April 2014, the Council unanimously voted for Resolution 2149, establishing a UN peacekeeping operation with up to 10,000 troops with the primary task of protecting civilians (UNSC, 2014a). The UN’s MINUSCA assumed responsibility from MISCA on 15 September (MINUSCA, 2014).

Three factors of legitimacy 

The remainder of the article explores the reasons for the Security Council’s decision to take over from the AU.  The AU’s MISCA faced two predominant issues before and during its deployment, which made the Security Council’s decision to authorise a takeover likely.  First, MISCA lacked adequate capacity to protect civilians and second, the mission had little likelihood of success. Finally, the national interests of the P5 combined with MISCA’s deficits ensured a UN takeover of the peacekeeping mission in CAR.

Capacity to protect civilians

While its mandate was well defined – including protecting civilians, stabilising the country and reforming the security sector – MISCA lacked the resources to perform these tasks (ICG, 2013, p.7; UNSC, 2013a). As the UN Secretary General report (2014a) from March 2014 noted, MISCA faced ‘significant challenges in terms of air mobility, information and communications systems, intelligence capacity, medical facilities and logistics supply and sustainment’. Additionally, the AU was unable to finance for its mission, relying on external funding, which came from the US (US$100 million) and the EU (€50 million) (UNSC, 2013c). The UN provided MISCA with much-needed technical support (AU Chairperson, 2014).

Out of all the challenges, perhaps the most pressing was a lack of troops to protect civilians. In February 2014, MISCA’s strength stood at 6,032 troops, which was insufficient for the mission to be visible to the local population outside the capital Bangui (UNSG, 2014a, p.10). The UNSG’s report (2014a, p.3) noted that despite MISCA’s best efforts, the mission was able to only offer ‘limited protection’. As a result of widespread violence which MISCA was unable to stop, the ‘demography of the country ha[d] changed radically’ by March 2014 (UNSG, 2014a, p.7). Almost 700,000 mostly Muslim civilians had been internally displaced, and over 288,000 civilians had fled to neighbouring countries (UNSG, 2014a).

In addition to their inability to protect civilians, MISCA’s troops sometimes did more harm than good to the population. In December 2013, peacekeepers from the Democratic Republic of Congo (DRC) allegedly tortured two anti-balaka members to death; six months later, DRC troops were linked to the forced disappearance of eleven people (HRW, 2014a). On the 29th of March 2014, Chadian troops fired into a crowded market place in Bangui, killing 30 people (Welz and Meyer, 2014). Under great international pressure, Chadian troops were then forced to withdraw (Kromah, 2014).

In the same month as the Chadian contingent returned home, nine leading African and international non-governmental organisations called on the UN Security Council to establish a UN-led peacekeeping operation to protect civilians on the ground (HRW, 2014b). The letter stated that ‘[o]nly a strong UN peacekeeping mission will have the resources and the civilian expertise to improve the protection of civilians’ (HRW, 2014b). Pressure to re-hat MISCA also came from within the UN. In February 2014, UN Secretary General Ban Ki-moon stated that ‘the security requirements far exceed the capabilities of [MISCA and Operation Sangaris]’ and reiterated that both his office and the Security Council had clear protection responsibilities under the UN Charter (UNSC, 2014c). In his March report, the Secretary General also linked the AU’s lack of capacity and the need for UN peacekeeping: ‘the most important and urgent consideration is the protection of civilians … Consequently, I am proposing the rapid deployment of a United Nations peacekeeping operation’ (UNSG, 2014a, p.12).

The UK and the US eventually supported a takeover of MISCA, aware of the Security Council’s duty to protect civilians (UNSC, 2014d). Two months before the UN-led peacekeeping operation MINUSCA was authorised, the Council held a separate open topical debate on the Protection of Civilians in armed conflict, where the UK noted that ‘[t]he Council can and must play a key role in alleviating the impact on civilians in crisis’. At the same debate, the US emphasised the importance of issuing UN peacekeepers with strong protection mandates should civilians be at risk (UNSC, 2014a). France specifically mentioned the Central African Republic, stressing that civilian protection had to be strengthened in order to avoid a ‘hotbed for atrocities’ (UNSC, 2014a). These statements reflect a growing consensus among the Security Council’s Western members that the Protection of Civilians agenda should be a priority in UN peacekeeping missions, as the Council’s legitimacy depends on it (Bellamy and Williams in von Einsiedel, Malone and Ugarte 2015, p.21).

Likelihood of success

While MISCA was unable to protect civilians, the political situation on the ground improved during its deployment. In the areas of French and AU deployment in the capital Bangui, the killing rate reduced throughout December 2013 (Rohde, 2013). On the 10th of January 2014, Séléka leader Michel Djotodia stepped down as president and ten days later, former mayor of Bangui Catherine Samba-Panza was confirmed as new president by the Transitional National Council (UNSG, 2014a). The new administration wanted to move the political transition forward quickly and requested UN peacekeepers to allow it to do so (UNSG, 2014a). In January, the foreign affairs minister of the Central African Republic requested a UN peacekeeping mission ‘to stabilize the country and address the civilian aspects of the crisis’ (Mitchell ,2014).

These political changes in the capital indicated a stabilisation of the political landscape and made the transfer of the AU’s MISCA to the UN’s MINUSCA possible. UN peacekeeping was considered in earnest only after the AU and France had established some stability on the ground and after the political process had begun. Having drawn lessons from peacekeeping failures during the 1990s, the UN Security Council has been reluctant to authorise missions into ongoing conflicts. It is aware that peacekeepers deployed into unstable situations are less likely to achieve the mission’s mandate, which would severely damage the UNSC’s legitimacy (Boulden, 2013, p.7).

The AU was unimpressed with the plan to re-hat MISCA and asked the UN Security Council for more time to stabilise the country (Karlsrud 2015: 49). It had established MISCA partly because its members were embarrassed about their inability to send peacekeepers to Mali quickly a year earlier, instead relying on a French intervention (Ero 2013). In order to make up for its deficiencies in Mali, the AU’s permanent observer to the Security Council maintained on the 6th of January 2014 that ‘MISCA can meet the challenges before it’ (UNSC. 2014b). The Council however was unwilling to pander to the AU’s wishes, aware that its legitimacy was on the line due to the AU’s failure to protect civilians.

National Interests

Aside from the AU’s deficiency in stabilising the Central African Republic, the national interests of France, a permanent member of the Security Council, impacted significantly on the Council’s decision to take over from MISCA. France’s interests were shaped primarily by legitimacy concerns. As the Central African Republic’s former colonial power, France has had an almost constant military presence in the country and was the first international actor to react when the crisis broke out in December 2012 (Welz and Meyer, 2014). In March 2013, it sent 350 troops to secure the airport in Bangui and later reinforced the contingent to 1,000 when Operation Sangaris deployed alongside MISCA in December of the same year (ICG, 2013, p.8). While some claim that France’s intervention revolved around securing France’s economic interests (Welz and Meyer, 2014), most insist that France continues to have few economic interests in the central African country (Beardsley, 2013).

Instead, the French intervention was shaped by legitimacy concerns related to its role in Rwanda a decade earlier (Beardsley, 2013). From 1962, after the end of Belgium’s colonial rule in Rwanda, France took on the role as ‘protector’ of the Hutu-government, a relationship that afforded France not only with prestige, but also with economic opportunities (Wallis, 2006, p.10; Wyss. 2013. p.85). When the genocide of the Tutsi population was under way in mid-1994, France sided with the Hutu génocidaires, providing political cover for the genocidal government (Wallis, 2006). This national failure still loomed large in the minds of French public servants almost two decades later, and in 2013 many wanted to see an intervention to protect Central African civilians in a similar context (Beardsley, 2013).

However, once France was involved in the conflict, it had little interest in getting bogged down, having recently launched a large-scale intervention in Mali that had stretched its military budget (Ero, 2013; Irish and Flynn, 2014). When it first intervened, France had not anticipated how difficult the condition on the ground would be (Bouckaert in Ducrotté, 2014). The administration had thought that it would take a maximum of six months to stabilise the Central African Republic, believing that ‘a show of French force would be enough’ (Irish and Flynn, 2014). With the security situation worsening throughout 2013, France reluctantly became ever more involved. When France had first deployed on the 23rd March 2013, it had sent only 350 troops (Deutsche Welle, 2013). With the intensification of the conflict in December, the number of troops was increased to 1,000 (Willsher and Sparrow, 2013). February 2014 saw a further enlargement to 1,600 troops, with France promising to deploy another 400 by March (UNSG, 2014b).

In addition to the budgetary aspect, France was aware that many locals saw Operation Sangaris as an illegitimate neo-colonial intervention (Bachmann, 2014). In particular, the Muslim population perceived the French troops as biased against them and demanded that they leave (Bachmann, 2014; Beardsley, 2013).

With both budgetary and legitimacy concerns demanding a retreat, France advocated for a stronger role from the UN as early as December 2013, when Foreign Minister Fabius told the UN Secretary General that a UN takeover of MISCA may be necessary by mid-2014 (Nichols, 2014). When the government of Chad announced on the 3rd of April 2014 that it would withdraw its contingent from MISCA, France ramped up efforts to get the UN to take over from the AU (Kromah, 2014). France knew that it could not reasonably depart from the Central African Republic and leave MISCA alone on the ground, as the already-struggling mission had lost its core component (Kromah, 2014). Thus, it put forward UN Security Council Resolution 2149 on the 10th of April, which established MINUSCA (UNSC, 2014d).

The US eventually supported Resolution 2149, but only after several months of refusing to vote for the deployment of UN peacekeepers. When the conflict in the Central African Republic had broken out at the end of 2012, the US argued against sending UN peacekeepers and instead supported Operations Sangaris and the AU by committing $100 million in military assistance (Lynch, 2013; US Fact Sheet, 2015). Three reasons explain the US’s initial reluctance to support a UN peacekeeping mission (see Lynch, 2013). First, the US, like most other states, believed that the crisis would be resolved quickly. Second, aware that the deployment of a UN peacekeeping operation would take several months, the US saw the AU and French responses as the best option. Third, the Obama administration knew that Congress was unlikely to support another expensive peacekeeping mission in Africa after the recently established UN mission in Mali.

In the first US high-level visit to the Central African Republic since its independence in 1960, US Ambassador to the UN, Samantha Power visited the country in December 2013 (Roig-Franzia, 2013). Power (2003), a former Harvard professor and author of the book A Problem from Hell: America and the Age of Genocide, is known for her role as advocate on using US power to end mass atrocity crimes overseas. During her trip to the Central African Republic, she urged Séléka leader Michel Djotodia to abide by his promise to organise elections promptly and to investigate those responsible for the violence (Roig-Franzia, 2013). When it became clear that the conflict would not be resolved quickly, it was Power who lobbied for UN peacekeepers within the US administration (Lynch, 2013). That the US eventually overcame its unwillingness to fund a UNPKO and supported the establishment of MINUSCA was primarily due to her efforts (Hamilton, 2014).

The UK, Russia and China were also initially satisfied with the French and AU peacekeeping initiatives (Baptiste 2014). Lack of involvement of core national interests and a belief that the conflict would be easily resolved were compounded by the fact that high-profile conflicts in Syria, Ukraine and Iraq consumed much of the Council’s time (Baptiste, 2014; Hamilton, 2014). That the UK later openly supported the transfer of MISCA to MINUSCA was due to its concern over civilian insecurity.[6] On the other hand, China noted the need for the AU’s mission to be granted more time to stabilise the situation before a transfer could take place. It did so to please African states, which were against the re-hatting of MISCA. In the words of one observer, ‘the views of African regional organisations have emerged as an important factor influencing China’s position on the UN Security Council’ (Olsen, 2014, p.6). Despite China’s reluctance, civilian insecurity, the stabilised situation on the ground and French pressure convinced the Security Council to transition MICSA to a UN peacekeeping operation. On the 10th of April 2014, the Council unanimously adopted Resolution 2149, thereby establishing MINUSCA (UNSC, 2014d).

Conclusion

The case study of the transfer of peacekeeping responsibility from the AU to the UN in the Central African Republic demonstrates how legitimacy played the decisive role in the Security Council’s decision. It did so in three ways. First, France lobbied for a UN takeover, aware that it could not leave MISCA alone on the ground due to its inability to protect civilians. This concern became especially pressing after the large Chadian contingent withdrew from MISCA in April 2013. The US eventually supported French-sponsored Resolution 2149 due to the AU’s inability to protect civilians and to lobbying efforts by Ambassador Power. Importantly, the Council decided to re-hat MISCA before the AU was ready to hand over the mission. This is indicative of Western Council members’ increased willingness to take proactive action to protect civilians, aware that its legitimacy depends on it (Bellamy and Williams in von Einsiedel, Malone and Ugarte,  2015, p.21). Thus, the main determining factor for the Council’s decision to take over was the mission’s inability to protect civilians.

Second, UN peacekeeping in the Central African Republic was considered by the Council only after the AU and France had established some stability on the ground and after the political process had begun in combination with MISCA’s inadequate protection of civilians. The Council is aware that its legitimacy depends on its continued ability to authorise successful UN peacekeeping missions. The successful completion of past missions has afforded the Council international legitimacy (Williams, 2013, p.58), while unsuccessful missions have reduced its legitimacy (Brahimi Report,  2000, p.11). Therefore, the Council chooses where to take over from the AU very carefully and only if peacekeeping success is likely.

Third, legitimacy concerns were also the main reason for calls by the French mission to re-hat MISCA. France believes that its international legitimacy increases by engaging in ‘civilising missions’ in its former colonies and within its sphere of influence (Chafer,  2014, p.524). Much of this self-understanding can be traced back to France’s role in Rwanda in 1994, where its legitimacy had suffered from aiding the génocidaires (Wallis, 2006). When the conflict in the Central African Republic broke out, many French officials saw the chance to save civilians in a similar context as in Rwanda almost two decades before. When it realised that many locals regarded its intervention as illegitimate, it used its position on the Council to transition MISCA to a UN peacekeeping mission, aware that MISCA on its own was unable to protect civilians.

The situation in the Central African Republic in 2013 and 2014 is just one example of the increasingly important peacekeeping relationship between the AU and the UN. Continued research into this relationship is important, as it can reveal not only power dynamics between these two key players, but also decision-making procedures within the UN Security Council itself. Continued assessment of the Council’s decision-making process on peacekeeping matters is essential, as it reveals important aspects of the Security Council’s authority and gives an insight into today’s changing peacekeeping practice.

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Notes

[1] ‘Re-hatting’ refers to the process of handing over a peacekeeping mission from one actor (in this case the AU) to another (the UN). Its name comes from to changing of hats this results in: from green (the colour of the AU) to blue (the colour of the UN).

[2] MISCA is the French acronym for Mission internationale de soutien à la Centrafrique sous conduite africaine

[3] The United Nations Multidimensional Integrated 
Stabilization Mission in the Central African Republic

[4] The term ‘penholder’ refers to the state in charge of a specific issue related to the Council’s work. The task of a penholder is to draft resolutions and chair negotiations on their respective issues. Since 2008, the US, UK and France have generally been the penholders of most situations. This has widened the rift in power between these so-called P3 and the elected members of the Council. See Security Council Report. ‘In Hindsight: Penholders’. Available at http://www.securitycouncilreport.org/monthly-forecast/2013-09/in_hindsight_penholders.php. Accessed 25 May 2015.

[5] La Mission de consolidation de la paix en Centrafrique

[6] Personal correspondence

Gender Identity, Gender Based Violence, and the Responsibility to Protect

Tommaso Trillò, The University of Oxford, United Kingdom

Tommaso is currently serving as Junior Researcher at the Budapest Centre for the International Prevention of Genocide and Mass Atrocities. He holds an MSc in Migration Studies from the University of Oxford and a BA in Political Sciences from the John Cabot University.

Over the last few decades, attention to gender issues has consistently grown in virtually all fields, from economics to anthropology, from public policy to humanitarian intervention. Despite expanding popularity, however, “gender” remains a rather marginalized area of study. As a matter of fact, “gender” is often treated as a “something to do on the side” of other initiatives, most of the time depending on the availability of residual funding after “more relevant” issues have been addressed. The mass atrocity prevention community is not immune from this dynamic. Despite a verbal commitment to the mainstreaming of gender issues as key elements of concern, gender-related projects remain relatively underfunded and marginalized.

Arguably, the study of gender and the implementation of gender-related policies and initiatives should be a more prominent priority in the agenda of scholars, policymakers, and practitioners working in the field of the responsibility to Protect (R2P). Attention to gender based violence (GBV) in time of conflict recently exploded, especially after the adoption of UN Security Council Resolution 1325 on Women, Peace, and Security. However, as the title of the resolution explicitly suggests, the focus of GBV has mostly been on forms of violence specifically experienced by women. While the term “gender” should include both biological sexes, the equation of gender issues with women’s issues de fact creates pockets of exclusion from protection of male victims of some very specific forms of GBV. As a matter of fact, these forms of violence are often unreported, understudied, and at times lack recognition as actual violence amounting to torture or persecution.

In light of the above, this essay wishes to be a thought-provoking piece with the following as objectives. Firstly, gender should be recognized by the R2P community as a social category that is as meaningful as race, nationality, and ethnicity. Accordingly, gender should be studied and considered as a key element in the perpetration of violence. Secondly, the equation of “gender” with “women” should be abandoned because it is detrimental to the achievement of full protection needs for specific groups currently neglected, including male victims of GBV. Thirdly, neither of the two biological sexes should enjoy better protection under the framework of “gender”. Rather, both groups should be recognized as having gender-specific protection needs and therefore be the object of specific protection policies and actions. Finally, this paper wishes to argue that the international community already possesses the tools in order to offer full protection to people facing GBV through the Refugee Convention of 1951 and the concept of R2P, despite the relative weaknesses of both instruments. Achievement of protection is thus a matter of efficiency at all levels, and partially depends on change at the discursive level to increase commitment and reduce pockets of exclusion.

Analysis will be carried out as follows. Firstly, I will offer an interpretation of the concept of “gender” that draws on Foucault’s notion of discourse, Gramsci’s notion of hegemony, and Connell’s notion of hegemonic masculinity. Secondly, I will define gender based violence (GBV) in time of conflict and outline its path towards recognition as a matter of international concern. Thirdly, I will outline the opportunities for protection available to the international community under the Refugee Convention and under the R2P. Finally, I will make some recommendations.

Gender as a Social Structure

A short and powerful definition of “gender” has been advanced by Mahler and Pessar (2006), scholars in migration studies, in the context of their effort for the mainstreaming of gender as a legitimate object of study for migration scholarship. In their definition, gender is “the meaning that people give to the biological reality that there are two sexes” (Mahler and Pessar, 2006, p. 29). Gender refers to a social construction resulting from power dynamics between men and women and the effects of these dynamics on identity, social roles, responsibilities, and social status. Drawing from Foucault’s (1972) notion of “discursive formation” (or “discourse”), gender can be understood as a system of ideas, beliefs, utterances, and practices that systematically works to produce and reproduce the idea that two objects (men and women) are inherently different and, accordingly, should occupy different social positions. In Crawley’s words, gender refers to “the social organization of sexual difference” (Crawley, 2001, p. 7).

While Foucault’s notion of discourse is a rather useful theoretical lens to understand gender, Gramsci’s notion of hegemony can be more useful to understand how discourses about gender are produced, reproduced, and reshaped in a process that involves agency by all social actors involved (Fairclough, 1992, p. 56). Foucault tends to over emphasize the extent to which people are influenced by power, leaving little or no room for agency beyond the reproduction of existing structures. Gramsci portrays a much more unstable equilibrium that is highly dependent upon alliances between different groups and the production of consent from subordinate classes. This unstable equilibrium is the ground for constant struggle, where structures are constantly renegotiated (Fairclough, 1992, pp. 56-58).

Gramsci theorises hegemony as the power of a class over society as a whole. This dominance, however, is never fully achieved, and can only be maintained by forming alliances, making concessions, and most importantly developing ideological means to ensure the integration of subordinated classes into the hegemonic project (Fairclough, 1989, pp. 61-62). In other words, hegemony is the exercise of power through acquiescence rather than through coercion. A fundamental element in the exercise of power through hegemony is ideology. According to Gramsci, ideology is “a conception of the world” that is implicitly manifest in the ways in which people conduct themselves individually and collectively (Gramsci, 1971, as cited in Fairclough, 1989, p. 62). Ideology works to perpetrate hegemony by producing discourses that represent the world in a given way and by inculcating this discourses as ways of being (Fairclough, 1985, p. 28). Usually, ideological discourses manage to increase their currency and to undermine the validity of other discourses by presenting themselves as the natural order of things. If successful, ideological discourses are eventually picked up by subordinate actors that uncritically accept them as “common sense” (Gramsci, 1971).

Gramsci’s notions of hegemony and common sense have been picked up by Connell (1995) as the basis for the influential concept of “hegemonic masculinity”. Connell theorizes hegemonic masculinity as a system of beliefs that supports, reinforces, and legitimizes a patriarchal order of society that serves the interests of the dominant group (that is, cisgender men). Connell further argues that all members of society are to some extent complicit in the perpetuation of hegemonic masculinity. Among other ideologies, hegemonic masculinity produces normative ideas regarding what it means to be a man (and to be a woman) that are eventually internalized and reproduced by all members of society. One of the key insights of Connell is the realization that masculinity (like femininity) is not monolithic, but significantly fragmented. Different gendered identities arise from the intersection of gender with other social structures (such as class, ethnicity, sexuality, etc.).

Gender is, therefore, an ideological discursive formation (Fairclough, 1989) that is produced as the result of power dynamics between different masculine and feminine identities in any given society. Its underlying ideology is reproduced through discursive practices and according to the normative ideas produced by hegemonic masculinity. Through ideology, hegemonic masculinity is capable of spreading normative ideas regarding what is the appropriate way of being a man (or to be a woman). As these norms gain currency, those more closely adhering to them enjoy privilege, while those that do not or cannot conform are ostracized. For example, if the proper way of being a man is to be white, middle class, and heterosexual, other ways of being a man will be treated as deviant and therefore marginalized.

Gender Based Violence and its Troubled Way to Recognition

Despite the fact that there has hardly ever been a war with no GBV, gender issues in time of conflict have been remarkably absent from discussion until quite recently. For much of modern history, it was widely held that GBV during conflicts resulted from random incidents of frustration and violence caused by individuals. Even more problematically perhaps, GBV has been treated invariably as the violence of men on women, and as the violation of the property rights of a group of men by another group of men. In other words, perpetrating violence against women in time of war was not seen as a violation of the human rights of the women themselves, but rather as the violation of male property rights upon them. Furthermore, the possibility of men being objects of GBV was completely excluded from the discussion, and still today remains a particularly under-studied and under-regulated issue. Throughout the twentieth century, GBV has moved from almost complete irrelevance to full recognition as a human rights issue and eventually as a threat to international peace and security (Carpenter, 2006).

Gender based violence can be defined as “any harm that is perpetrated against a person’s will; that has a negative impact on the physical or psychological health, development and identity of the person, and that is the result of gendered power inequities that exploit distinctions between males and females, among males, and among females” (Ward, 2002, pp. 8-9). GBV is particularly likely to take place in time of conflict and in post-conflict environments. GBV can take many forms, including rape, slavery, forced impregnation/miscarriages, kidnapping/trafficking, forced nudity, and disease transmission, with rape and sexual abuse being among the most common (Manjoo and McRaith, 2011, p. 12).

One of the earliest steps towards recognition of GBV as a matter of concern came in 1863, when the Lieber Code (a U.S. code of conduct for the treatment of enemy civilians and prisoners of war) made rape a capital offense. Later, The Hague Convention of 1907 coded GBV as “violations of family honor and rights”. Explicit condemnation of GBV was achieved with Article 27 of the Fourth Geneva Convention, was restated in Article 76 of the First Geneva Protocol directed to the victims of international war, and was extended to the victims of non-international conflicts with the Second Geneva Protocol of 1977. Further commitment to eliminate GBV in time of conflict came with the 1979 Convention on the Elimination of All Forms of Discrimination against Women, which includes several articles relating to the issue (Manjoo and McRaith, 2011).

Despite the existence of international laws and norms condemning wartime GBV, implementation has been patchy at best. In the aftermath of World War II, the trials of Nuremberg did not prosecute any case of GBV. Remarkably, the mass rape committed by the Red Army following the capture of Berlin went literally unspoken until very recently. The analogous trials in Tokyo only marginally engaged with GBV, treating these cases as a marginal category under the broad umbrella of crimes against humanity. More recently, mass rape, forced prostitution, and other forms of GBV went almost unspoken and unpunished in most conflicts, including very prominent ones such as the Vietnam War, the Pakistani secessionist war with India, and the First Gulf War (Saha, 2009, p. 505-7).

The turning point came in 1998, with the decision of the International Criminal Tribunal for Rwanda to condemn to life imprisonment Jean-Paul Akayesu for encouraging and facilitating mass rape operated during the 1994 Genocide. The decision recognized that rape can be perpetrated with the purpose of intimidation, degradation, humiliation, discrimination, punishment, control or destruction of the person, and thus is a serious war crime. Furthermore, rape was recognized as falling under the definition of torture in those cases when it is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. The decision also acknowledged that rape can be used as an instrument of genocide when it is accomplished with the intent to physically or psychologically destroy a group (Saha, 2009, pp. 505-9; Manjoo and McRaith, 2011).

After the 1998 Akayesu decision, attention to gender issues in conflict scenarios and beyond increased dramatically, followed by a proliferation of legal and policy instruments for the protection of individuals from such crimes. In 2000, Security Council Resolution 1325 on Women, Peace and Security emphasized “the responsibility of all States to put an end to impunity and to prosecute those responsible for genocide, crimes against humanity, and war crimes including those relating to sexual and other violence against women and girls”. Entering into force in 2002, the Rome Statute of the ICC codes wartime rape as a crime of war. In 2008, Security Council Resolution 1820 recognized GBV as a threat to international peace and security. Subsequently, Security Council Resolution 1888 (2009) called for the appointment of a Special Rapporteur on sexual violence and for more concrete efforts for monitoring and reporting of GBV in time of conflict.

Offering Protection: Asylum and R2P

In this section, I wish to argue that the international community has two possibilities in which to offer protection to victims of GBV, this is dependent on their physical location with respect to the border of their country of origin. For people outside their country of origin, the international community can and should offer protection through a gendered interpretation of the 1951 Refugee Convention. For people still within the borders of their country of origin, the international community can and should offer protection through the implementation of the Responsibility to Protect, when a host state manifestly fails to offer protection. Both instruments are limited for a wide array of reasons, but nonetheless encompass a strong mandate across and within national borders.

The 1951 Refugee Convention can be a powerful tool of international law to offer protection to people facing persecution based on their socially constructed gender role. The efficiency of the Convention in offering protection to potential victims of GBV is, however, limited by the absence of “gender” among the protected grounds (race, religion, nationality, political opinion, and membership of a particular social group). Lacking a specific provision for GBV, it has been the strategy of the UNHCR to treat gender as a “particular social group” (PSG). Offering protection under PSG is, however, rather problematic. Neither the Convention nor its 1968 Protocol provide a univocal definition of PSG. Asylum applications based on the particular social group ground are often viewed with diffidence. States perceive it as the key to the “floodgates” of undesired refugee flows. Claims based on particular social group have very low success rates, and is usually treated as the very last resort for asylum claimants. Amorphous in nature, PSG has always been the object of very restrictive and inconsistent interpretations across and within jurisdictions, making it a very risky option for asylum seekers (Prochazka, 2012, p. 446; Cianciarulo et al., 2012, pp. 142-3).

Despite the fact that gender based persecution has been a policy priority in the agenda of the UNHCR for more than twenty years, implementation has faced several obstacles. Arguably, this is the product of three factors. First, the discourse on gender-based asylum claims has come to the fore during a period in which Western attitude towards migratory flows is not as friendly as it used to be in the early Cold War years. In some cases, expansion of protection conflicts with other priorities of receiving states. Secondly, the large bureaucratic structure of the UNHCR itself can be viewed as a sort of obstacle. As in many other bureaucratic agencies, policy implementation is often slow, and policy priorities do not always penetrate evenly through the various branches. Thirdly, it is worth considering that the UNCHR heavily depends on the financing of donor states, with the EU and EU Members providing almost half of its resources. While these states have declared their commitment to the defence of human rights, evidence shows that their asylum policies are becoming more and more restrictive. Thus, the UN agency is in the uncomfortable position of having to promote policy priorities that might or might not coincide with the political interest of its main sponsors (Freedman, 2010a, 2010b).

Finally, the greatest limitation of the Refugee Convention is probably its limited focus on international migrants. Despite its quite advanced outlook, the Refugee Convention was drafted in 1951, and is invariably a product of its time and context. Despite the fact that liberalism was on the rise in international relations, state sovereignty was still an almost untouchable concept, at least for what concerns the administration of domestic matters (Gibney and Loescher, 2010).

In the post-Cold War scenario, increasing attention has been given to the need to redefine State sovereignty to include not only rights but also duties. This trend is significantly changing international relations in some unprecedented ways. In this context, one of the most relevant developing trends is the growing consensus in the international community around the emerging norm of the Responsibility to Protect (R2P). Formulated for the first time in 2001, R2P was adopted unanimously by the international community at the 2005 UN World Summit. The concept of R2P stands on three pillars, respectively stating that (1) states have a responsibility to protect their own population from genocide, crimes against humanity, war crimes, and ethnic cleansing; (2) that the international community has a duty to assist states in performing their primary duty to offer basic security; and (3) that the international community has a duty to use appropriate peaceful or non-peaceful means, with the authorization of the UNSC, in order to stop states who are manifestly failing to protect their own populations from ongoing atrocities.

Probably the most interesting characteristic of the R2P is its implications for state sovereignty. Ever since its formulation by early social contract theorists, sovereignty derives its legitimacy from the people who choose to alienate part of their freedom in favour of a sovereign that in turn is charged with some duties, the most important of which is the provision of security. Ever since the peace of Westphalia (1648), where modern nation-states made their first appearance, the security function of the sovereign has been mostly interpreted as limited to external security, with little or no attention to the treatment of domestic residents (Deng et al., 1996).

Arguably, the R2P is a norm that aims at re-establishing the original meaning of sovereignty in terms of responsibility within the framework of social contract theory (Deng et al., 1996). This is indeed the key assumption laying behind its first pillar that aims at making any sovereign liable for neglecting its most basic functions. Similarly, the second pillar of R2P is grounded on the assumption that states who fail in performing their basic duties can call upon the international community to assist them. Finally, the third pillar of R2P wants to reinforce the idea that, in light of the nexus between sovereignty and responsibility, international interventions to enforce or protect peace and security are indeed legitimate in those cases when the state is failing in providing basic guarantees or is itself the perpetrator of violence.

While the limitations to the mainstreaming of gender in asylum are to some extent due to the nature of the asylum system as envisioned by the Refugee Convention and the bureaucratic structure of the UNHCR, the limitations to the implementation of a gendered interpretation of R2P are mostly discursive. Since R2P refers to the duty to protect victims and prevent atrocity crimes, the recognition of GBV as a serious human rights violation automatically includes GBV into the framework of R2P. Limitations are therefore mostly tied to the way in which “gender” and “gender based violence” are conceptualized, translated into policy, defined in guidelines, and eventually implemented in daily practice. Schmeidl and Piza-Lopez (2002) authored one of the earliest works in this field, arguing that the mainstreaming of gender in conflict analysis and response (1) allows the detection of previously overlooked signs of instability; (2) prevents the perpetuation of discrimination in post-conflict scenarios; and (3) unlocks the untapped potential of women as agents of change in the peace process (Schmeidl and Piza-Lopez, 2002, p. 7). More recently, Bond and Sherret (2012) and Davis and Teitt (2012) argued for the creation of mutually reinforcing synergies between the Women, Peace, and Security agenda and R2P. Sara Davis further engaged in her advocacy effort, and in a recent paper explicitly encouraged the Office of the UN Secretary-General’s Special Adviser on the Prevention of Genocide and the Special Adviser for the Responsibility to Protect (OSAPG) to address the role of gender inequality and gendered violence in their early warning framework (Davies, Teitt, and Nwokora, 2015, p. 245).

Conclusion

Gender is a social construction that is produced, reproduced, and maintained through normative ideas regarding what is the appropriate way of being a man or being a woman. People can be targets of violence because of their socially constructed categorization, and this includes gendered categorizations. Gender based violence is therefore violence targeted at both men and women because of their gender. Gender based violence has been disregarded for much of human history, and only entered the agenda of the international community after World War II, finally achieving full commitment in the late 1990s. Yet despite this, the international community has still been unable to fully implement adequate protection and prevention strategies to tackle gender based crimes. Any attempt to achieve this in the future is arguably dependent on the efficiency of the actors involved in filling “gaps” between the actual and the intended effects of their actions, between their intended impact and their policy commitment, and between their policies on paper and their discursive commitments. Finally, full and efficient protection requires change at the discursive level to disrupt the notion that gender equates with women and recognize men’s issues as equally relevant. In this respect, integrating gender in the refugee and R2P agendas would allow for better early warning, enhanced protection across and within borders, and increasingly inclusive peace processes that engage all interested actors regardless of gender.

References cited

Bond, J., and Sherret, L. (2012). Mapping gender and the Responsibility to Protect: seeking intersections, finding parallels. Global Responsibility to Protect. 4(2). p. 133-153.

Carpenter, R.C. (2006) Recognizing gender-based violence against civilian men and boys in conflict situations. Security Dialogue. 37 (1). p. 83-103.

Cianciarulo, M., David, C. and Silenzi Cianciarulo, M. (2009) Pulling the trigger: Separation violence as a basis for refugee protection for battered women. American University Law Review. 59 (2). p. 337-384.

Connell, R.W. (1995) Masculinities. Cambridge, UK: Polity Press.

Crawley, H. (2001) Refugees and Gender: Law and Process. Bristol, UK: Jordan Publishing Limited.

Davies, S. E., and Teitt, S. (2012) Engendering the Responsibility to Protect: women and the prevention of mass atrocities. Global Responsibility to Protect. 4(2). p. 198-222.

Davies, S. E., Teitt, S., and Nwokora, Z. (2015) Bridging the gap: Early warning, gender and the responsibility to protect. Cooperation and Conflict. 50(2). p. 228-249.

Deng, F.M., et al. (1996) Sovereignty as Responsibility: Conflict Management in Africa. Washington, DC: Brookings Institution Press.

Fairclough, N. (1985) Critical and Descriptive Goals in Discourse Analysis. p. 30-55 in Fairclough, N. (ed.) (2010) Critical Discourse Analysis: The Critical Study of Language. (2nd ed.), Harlow, UK: Longman.

Fairclough, N. (1989) “language and ideology”. p. 56-68 in Fairclough, N. (ed.) (2010) Critical Discourse Analysis: The Critical Study of Language. (2nd ed.), Harlow, UK: Longman.

Fairclough, N. (1992) Discourse and Social Change. Cambridge, UK: Polity press.

Foucault, M. (1972) The Archaeology of Knowledge, New York, NY: Pantheon Books.

Freedman, J. (2010a) Mainstreaming gender in refugee protection. Cambridge Review of International Affairs. 23 (4). p. 589-607.

Freedman, J. (2010b) Protecting women asylum seekers and refugees: From international norms to national protection? International Migration. 48 (1). p. 175-198.

Gibney, M., and Loescher, G. (2010) Global Refugee Crisis: A Reference Handbook. Santa Barbara, CA: ABC-CLIO.

Gramsci, A. (1971) Selection from the Prison Notebooks, New York, NY: International Publishers.

Mahler, S.J. and Pessar, P.R. (2006) Gender matters: Ethnographers bring gender from the periphery to the core of Migration Studies. International Migration Review. 40 (1). p. 27-63.

Manjoo, R., and McRaith, C. (2011) Gender-based violence and justice in conflict and post-conflict areas. Cornell International Law Journal. 44. p. 11-31.

Prochazka, S. J. (2012) There is no honor in honor killings: Why women at risk for defying sociosexual norms should be considered a “particular social group” under asylum law. Thomas Jefferson Law review Journal. 34 (2). p. 445-503.

Saha, A. (2009) Rape as a war crime: The position of international law since World War II. Journal of East Asian and International Law. 2 (2). p. 497-516.

Schmeidl, S., and Piza-Lopez, E. (2002) Gender and conflict early warning: a framework for action. London: International Alert.

Ward, J. (2002) If Not Now, When? Addressing Gender-based Violence in Refugee, Internally Displaced and Post-conflict Settings. New York, NY: RHRC Consortium.

Fulfilling the Promise of R2P: Our Shared Responsibility

Prof. Alex J. Bellamy, Director, Asia Pacific Centre for the Responsibility to Protect

We humans have often demonstrated an immense capacity to tolerate colossal inhumanity. As a result, no region of the world has escaped the scourge of genocide and mass atrocities in the past century or so. Time and again there have been impassioned appeals to put an end to these crimes, which shock the very conscience of mankind. Yet until very recently the world’s default response to mass killing, rape, torture and forced deportation was to stand aside and do little. From Phnom Penh to Kigali, the outside world offered little but fine words to the victims of atrocity crimes.

One response to the problem of mass atrocities has come in the form of the Responsibility to Protect (R2P) principle. Although – like all human-made things – it is far from perfect, R2P offers the best chance in our own time to build an international community less tolerant of mass atrocities and more predisposed to preventing them and protecting their intended victims. My optimism is based on the fact that R2P has achieved something that earlier projects did not: genuine and resilient international consensus.

R2P was adopted unanimously in 2005 by the United Nations General Assembly, in which all 193 Member States of the UN are represented. Four years later, in 2009, that same body agreed—again unanimously—to continue consideration of the principle’s implementation. The UN Security Council has referred to R2P in no fewer than 40 resolutions. The UN’s General Assembly and Human Rights Council have also adopted resolutions referring to the principle. To those who see Western hegemony lurking in the shadows—it bears pointing out that by virtue of their permanent membership of the UN Security Council, China and Russia have cast more votes at the UN in favor of the principle than have the great majority of Western democracies. This is a truly global undertaking and therein lies the transformative potential of R2P.

R2P is a disarmingly simply idea. It holds that sovereign states have a responsibility to protect their own populations from four crimes that indisputably ‘shock the conscience of humankind’ and their incitement: genocide, war crimes, ethnic cleansing, and crimes against humanity. It requires that the UN’s Member States assist each other to fulfill their responsibility, because some states lack the physical capacity and legitimacy needed to protect their populations from these crimes. Finally, R2P says that when states are ‘manifestly failing’ to protect their populations from these four crimes, whether through lack of capacity or will or as a result of deliberate intent, the international community should respond in a ‘timely and decisive’ fashion with diplomatic, humanitarian, and other peaceful means and, failing that, with all the tools that are available to the United Nations (UN) Security Council. This can include the use of military force, which is sometimes a tragic necessity. R2P calls specifically for the prevention of the four crimes and of their incitement.

These are the three pillars of the Responsibility to Protect: (1) the primary responsibility of states to protect their own population from genocide, war crimes, ethnic cleansing and crimes against humanity, and from their incitement; (2) the duty of states to assist each other to build the capacities necessary to discharge the first responsibility; (3) the international community’s responsibility to take timely and decisive action to protect populations from the four crimes when the state in question fails to do so. The principle is simple; it is the politics that surround it and the challenge of realizing its ambition in practice that is so difficult.

This is where individual responsibility comes in. R2P is not a self-fulfilling norm. It is a statement of shared expectation – a commitment of what the world ought to do in order to end genocide and mass atrocities once and for all. We all have a role to play and the choices each of us make will shape whether or not things change for the better. Naturally, whilst we can point to some notable successes – think of the diplomatic effort that ended Kenya’s post-election violence in 2008, of the successful efforts to ensure that Myanmar’s 2015 election was conducted peacefully (in a context where the risk of atrocities was uniformly judged to be very high), and of desperate ongoing efforts to prevent the escalation of violence in Burundi — but our practice sometimes falls well short of the mark as it did in Sri Lanka and as it is in Syria.  The world’s failures to protect are not failures of R2P as a principle, it is rather a failure of national leaders and others to honor the commitments they made in 2005.  R2P creates a shared expectation that allows us to judge when we are succeeding or failing. But translating the promise into practice depends on choices of individuals and groups around the world.

That is why a journal like this is so important. We need fresh thinking, we need analysis, we need to know what is happening, why and with what effects. The international community has never tried to implement a principle like R2P before and there is no blueprint to follow. We need, therefore, to learn from our experience – and to do so rapidly. There are also myriad new challenges, unforeseen a decade ago – in particular those posed by non-state armed groups and violent extremists. By contributing to the debate, generating new knowledge and sharing analysis, journals like this can make an incredibly useful contribution to practice.

As students and academics we have choices. We can choose to use our research, community engagement and other skills to help strengthen R2P and improve its implementation.  We can help figure out what works and what does not work, to learn the lessons from past cases, to help build the capacities that states and societies need to resist the forces of extremism and escalation, to deepen our understanding of how R2P is conceptualized and practiced in different parts of the world, and to hold leaders to account on whether they are fulfilling their commitments. Alternatively, we can choose the comparatively easy path of cynicism and despair: we could condemn R2P as western imperialism (but explain that to the many Africans, Asians and Latin Americans working hard to implement the principle), we could insist that R2P will never work and that only some unimagined global revolution can do the trick (in the meantime, the cost of inaction will be paid in the lives of the victims of today’s and tomorrow’s atrocity crimes), in short we can promote hopelessness from our ivory towers, in the safe comfort of knowing that we will never be held accountable for our ideas or held responsible for making them work in practice. Cynicism is the easy road to take, but that is not the road taken by those who want to make R2P a daily lived reality. They have chosen a much more challenging path, but one that can make a real and positive difference to lives real people lead.

R2P was not designed to be a precious jar sitting on the mantelpiece in perfect conceptual isolation. It was meant to be used, tarnished, brought into the rough and tumble of global political life. As a result, its imperfections and those of its implementation are all too obvious to see. But so too is the progress it is engendering. The world is now more likely to respond to genocide and mass atrocities than it was before R2P. It is much more likely to prioritize protection in its responses.  But there is much more that needs to be done. This important initiative, spearheaded by students from the University of Leeds and the Graduate Institute of International and Development Studies in Geneva, can make an important contribution to delivering on the commitment to R2P that all states made ten years ago. And that, I think, would be time very well spent.

R2P then and now: A conversation with Professor Gareth Evans about gross human rights violations in a changing global environment

Interview by Charlotte Abbott

Responsibility to Protect Student Journal Editorial Team

The Responsibility to Protect (R2P) concept was first outlined in 2001 with the International Commission on Intervention and State Sovereignty (ICISS) Report, authored by Professor Gareth Evans and Mohamed Sahnoun. In 2005 Governments unanimously agreed that they have a responsibility to protect populations from four crimes: genocide, crimes against humanity, war crimes and ethnic cleansing. Fifteen years on from the adoption of R2P, we spoke with Professor Gareth Evans regarding his involvement in the creation of R2P, and the global factors which have influenced it since 2005. We touched on topics such as the legacy of colonialism, changing power dynamics between States and corporations and the US presidential election.

Moral versus legal obligations

In your recent European Centre for the Responsibility to Protect (ECR2P) Lecture [based on your GCR2P blog piece] titled ‘R2P: The Dream and the Reality’, you suggest that R2P is centred around creating a ‘compelling new sense of moral and political obligation’, as opposed to creating new legal rules. If so, how do we then enforce differing moral and political obligations if these are not embedded in international law?

Being embedded in international law, treaty or customary, does not guarantee effective enforcement: that is international law’s eternal problem. What matters is the political will to enforce the relevant norms, and that has always been R2P’s objective. That applies both in respect of (a) the important international human rights and humanitarian law obligations that do already inhibit states’ treatment of their own citizens or wartime behaviour and which are R2P relevant, and (b) those obligations under Pillars Two and Three of R2P which are not presently (some limited obligations under the Genocide Convention apart) at all cast in legal terms although hopefully they will ultimately evolve, through practical acceptance in years to come, as customary international law. What is abundantly clear is that any attempt to negotiate an R2P treaty would have gone nowhere in 2005 – and has no better prospects now, not least given the attitude of the US Senate to treaty ratification even under adult presidential administrations. Achieving effective implementation of R2P in all its dimensions is overwhelmingly a matter for political, not legal, advocacy and action.

The International Commission on Intervention and State Sovereignty

The initial International Commission on Intervention and State Sovereignty (ICISS) report lacked attention on gender, climate change, business and human rights. Were the ICISS report to be written now, would you include these topics in relation to the prevention of gross human rights violations? What else would you focus on?

No. I would write it as it now is. Without the narrow focus on the ‘four crimes’ in 2005 R2P would have had no chance of being embraced by the World Summit. Of course rape and gender-related crimes are often at the heart of the worst mass atrocity crimes; business can be centrally involved in both abetting and preventing such crimes; and CO2 reduction is an absolutely critical existential issue for the planet. But we don’t help the R2P cause at all by diluting its focus to extend to other public goods issues, whether related or unrelated and whatever their merit. See further my answer to your last question below.

The ICISS report was drafted before the war on terror. In what ways has the war on terror affected R2P implementation? How have R2P and counter-terrorism interacted given their different conceptions of security (human centred for R2P and state-centered for counter-terrorism)?

Counter-terrorism and R2P strategies are conceptually distinct but complementary, in the sense that R2P-atrocity crimes are often perpetrated by terrorist organisations. (R2P is similarly conceptually distinct but complementary to the United Nations ‘Protection of Civilians’ agenda – the latter being concerned with a broader range of protection issues than just atrocity crimes, and only in a wartime/conflict environment.) The main impact of the ‘war on terror’ on R2P was the way in which 9/11 in 2001, just before the ICISS report was published, moved terrorism to centre stage in international security policy discourse, after a decade in which the big debate was about ‘humanitarian intervention’. It remains something of a miracle that we were able to keep enough focus on the broader issue of mass atrocity crimes to win through as we did at the 2005 World Summit.

The development of R2P

Would you agree that the discourse of colonialism continues to affect the way in which R2P operates, in a practical sense? If so, how and why?

Colonialism discourse had a very strong negative impact on Western attempts to gain traction for the ‘right of humanitarian intervention’ in the 1990s. One of the great breakthroughs of ICISS was to change the underlying basis of that discourse by reconceptualising ‘right’ as ‘responsibility’ and ‘intervention’ as ‘protection’. The measure of our success was the unanimity of the 2005 resolution with the states of sub-Saharan Africa, every last one of them passionately anti-colonialist, playing an absolutely crucial supporting role. That dynamic has largely continued, with some states – like Cuba, Nicaragua and Venezuela – regularly trying to play a spoiling colonialism card, but gaining little traction in UN General Assembly debates and elsewhere for their efforts: the basic elements of the R2P norm are still pretty much universally accepted.

The continuing fallout from the Permanent Three’s overreach in Libya in 2011, which enraged the BRICS countries (Brazil, Russia, India, China and South Africa) in particular, continues to inhibit consensus in the Security Council, and that has a whiff of anti-colonialist/imperialist sentiment about it – ‘these guys are never to be trusted’ –but this dispute has always been more about general geopolitics than anti-colonialism as such.

As Multinational Corporations (MNCs) are becoming increasingly wealthy and powerful, should the R2P be applied to MNCs as well as states (see the case of Uighur Muslims forced labour in Chinese and international MNCs and Facebook’s contribution to the spread of hate speech in Myanmar against the Rohingya)?

Non-state actors, including multinational corporations and terrorist and militia groups, have always been important players in an R2P context. Curbing their behaviour or – in the case of businesses – enlisting their support will often need to be addressed in crafting R2P preventive, reactive and peacebuilding strategies at both national and intergovernmental levels.

Before the US election, you argued that Trump vs Biden’s approach to the COVID-19 crisis would either ‘accelerate defensive nationalism and mistrust of international institutions and processes, or serve rather as a giant wake-up call as to the absolute necessity of effective international cooperation’. In light of Joe Biden’s election, where do you see international commitment to the ‘responsibility to protect’ heading in the next years, and in a ‘post-Covid’ world?

The Biden administration will be genuinely committed to both human rights protection and cooperative multilateralism, and as such I look forward to a renewed commitment by the US to the key elements of the R2P agenda – and certainly to the values which underlie it, and for that to be influential in underpinning wider international support for R2P. There will probably still be over-caution – which I found incredibly frustrating under the Obama administration – about publicly embracing R2P in a domestic, as distinct from UN context (because it implied commitment to certain courses of action, and Washington, whoever is in power, likes to be seen by domestic critics as absolutely unconstrained in keeping all its options open). And there will certainly be extreme resistance – in the prevailing domestic political environment – to rushing into new foreign military adventures. But I don’t think a Biden presidency would just wash its hands should another Rwandan or Bosnian genocide situation erupt on its watch. Syrian type cases – not to mention cases like Xinjiang’s Uighurs – will be much harder, but they always are.

Advice for young scholars and practitioners

What advice do you have for young scholars and practitioners who are interested in working in the field of atrocity prevention/responses to gross human rights violations?

I have spelt this out, in the context of international careers generally, at considerable length in an article for The Conversation. In short, acquire the right professional skills; do your best to acquire relevant experience, through internships in relevant organisations and as much adventurous travel as you can, Covid permitting; give trust to luck; and stay optimistic. It really is crucial that the next generation of scholars and practitioners – those with a serious practical policy, not just theoretical, bent – carry on the fight for effective implementation of R2P in all its dimensions. The task is not just to analyse the world’s behaviour, but to change it. Go for it!

We’d like to end this interview with a question, but this time you’re the one asking it. When it comes to R2P today, what question do you find to be most important? What do you find is the most redundant?

The question I continue to find most unhelpful is the kind originally asked me by the Canadian Foreign Minister Lloyd Axworthy, who initiated the ICISS Commission, and which has been repeated in endless variants in different settings (including this interview request!) since: ‘R2P is such a beautiful idea: why shouldn’t we talk about a ‘responsibility to protect’ the Inuit people of the Arctic Circle from the ravages of climate change?’

The point is that any concept which is about everything ends up being about nothing, certainly when it comes to effective operational implementation. ‘Human security’ – though making the valuable point that individuals count as much as states – has suffered that fate. R2P was designed above all else with an operational objective: to energise effective international responses to mass atrocity crimes, threatened or occurring, behind sovereign state borders: if you make it about lots of other (unquestionably valuable) causes, you completely lose any such traction.

The most important continuing question for me is ‘How do we recreate effective consensus on the UN Security Council when it comes to responding to the most extreme mass atrocity crime cases?’.

Plenty will say that comes down the list, and that the whole present advocacy focus should be on prevention rather than reaction because if the former is effective the latter is redundant. Apart from the practical reply that achieving preventive perfection is unhappily still a distant aspiration, effective reaction to the really hard cases – the Cambodias and Rwandas and Bosnias – is where R2P’s credibility, and longevity, really stands or falls. Get unanimity on these issues in the world’s most important security forum and everything else falls into place; fail, and the cynics and sceptics will continue to gnaw away at the very concept of R2P and its utility in every other context.

Atrocity Prevention, 15 Years Since the Adoption of R2P: Interview with UN Special Adviser on R2P Dr. Karen Smith

Interview by Georgiana Epure, Charlotte Abbott and Emma Bapt

In 2005, governments unanimously agreed that they have both an individual and a collective responsibility to protect (R2P) populations, not just citizens, from four crimes: genocide, crimes against humanity, war crimes and ethnic cleansing. In 2008, UN Secretary-General Ban Ki-moon established the position of the Special Advisor on the Responsibility to Protect and since 2009 the Secretary-General has been publishing annual reports on R2P clarifying and developing what this concept means and what ‘tools’ it needs in order to be implemented more effectively. Fifteen years after the adoption of the R2P, we talked with Dr. Karen Smith, the UN Special Adviser of the Secretary-General on the Responsibility to Protect. Our interview touched on a series of issues that range from how the coronavirus pandemic affects atrocity prevention efforts to the role that religious leaders have in countering incitement to violence, and the relation between R2P and the Women, Peace and Security agenda – the topic of the Secretary-General’s upcoming report on R2P.

COVID-19

Recently, the UN Secretary General Antonio Guterres has called for an end to the ‘tsunami of hate and xenophobia’ sparked by the coronavirus pandemic. What is the state of the R2P norm in an age of increasing nationalism where more and more leaders legitimise hate speech, which may lead to hate crimes and other early warnings of atrocity crimes?

The rise in hate speech that we have seen accompanying a rise in nationalism and populism in many parts of the world underscores the fact that R2P is as relevant as ever. States – including their leaders – must be reminded of the responsibility they have, and the commitment they made in 2005, to protect their populations (including minorities and migrants). It is important to note that no country is immune from hate speech and its potential violent effects. During the current global pandemic, we have seen a worrying trend in which already vulnerable populations are targeted by hate speech and sometimes violent behaviour, based on accusations related to the spread of the coronavirus. The UN Secretary-General recognised the importance of addressing rising hate speech when, at the beginning of last year, he tasked the Office of the Special Adviser on the Prevention of Genocide to coordinate the development of a UN-wide Strategy and Plan of Action on Hate Speech, which is currently being rolled out, and has recently been supplemented by a guidance note on addressing COVID-19 related hate speech. Importantly, the Strategy and Plan of Action calls for more rather than less speech, underlining the importance of protecting freedom of expression whilst addressing hate speech that incites violence.

In May, the UN Security Council was close to voting on a resolution calling for a global ceasefire that would enable the international community to focus on ending the coronavirus pandemic. Conflict, fragile societies and the threat of atrocities may severely impact nations’ ability to confront COVID-19. Do you think the pandemic will reshape the way in which the international community thinks about global responsibilities and basic universal rights? 

The COVID-19 pandemic clearly has serious implications for the responsibility to protect, not least because it is likely to significantly increase the risk to already vulnerable populations. We are already witnessing that those parts of the population who already face high levels of risk – including ethnic, religious and sexual minorities, refugees, the poor, and women, are facing increased risk to their safety and their livelihoods. In many countries minorities have become the target of hate speech and in some cases even violence, based on their alleged association with the spreading of infections. In the development of national and global responses to the crisis, it is essential that any action takes into consideration the potential implications for the risk of atrocity crimes. Some of the lessons being learned in dealing with the COVID-19 outbreak are also relevant for atrocity prevention. These include the obvious, but consistently under-prioritised, fact that prevention is better than cure. Similarly, the importance of early warning – whether with reference to conflict, pandemics, or atrocity crimes, has been underlined. Like many other global governance challenges, the virus does not respect borders and therefore a multilateral, collective global response is really the only viable solution. Worryingly, over the past few years there has been a trend towards weakening multilateral institutions and, as part of growing nationalist and populist sentiments around the world, a general questioning of multilateralism. We must therefore also see the current crisis as presenting the international community with an opportunity to reflect on the nature of the current global order, and which issues should be prioritised, in the interests of building a better world.

Role of religious leaders

More and more attention is directed towards bringing religious leaders into efforts to prevent and counter incitement to violence, including identity-based violence. Last year, Ms Federica Mogherini, then European Union High Representative of Foreign Affairs and Security Policy, announced a new EU-sponsored Global Exchange on Religion in Society to connect and empower civil society actors who are working on faith and social inclusion. Notably, in 2017, under the stewardship of the UN Office on Genocide Prevention and the Responsibility to Protect,  the UN Secretary General launched the Plan of Action for Religious Leaders and Actors to Prevent Incitement to Violence that Could Lead to Atrocity Crimes. Where do we factor in an approach to R2P that mobilises members of civil society and focuses on particular areas (i.e. religion) for prevention purposes within the more common state-centric R2P approach? Is this a sign of a shift in approach, or R2Psimply diversifying its prevention ‘toolkit’?

While it remains the primary responsibility of states to protect their populations from atrocity crimes, this is not to the exclusion of other (non-state) actors. Particularly with regard to prevention, it is obvious that individual governments cannot build tolerant, resilient societies without the support of civil society. Many civil society actors can and have been playing important roles. These include women, youth, and religious leaders. As mentioned earlier, we have witnessed a disturbing rise in hate speech in recent years, much (but not all) of which targets religion. It is here that religious leaders can be particularly important in promoting tolerance and preventing incitement to hatred amongst their followers. As part of its Plan of Action for Religious Leaders, the Office of the Special Adviser on the Prevention of Genocide has worked with religious leaders from across different world regions and faiths to come up with a strategy that outlines specific targets aimed at preventing hate speech through enhancing education and capacity building, fostering inter-and intra-faith dialogue, and strengthening collaboration with traditional and new media. Religious leaders are undoubtedly essential partners in the fight against atrocities.

R2P focal points

Last year the Global Network of R2P Focal Points welcomed its second regional focal point (after the EU): the Organisation of American States. Why is it important that states and regional actors have such a focal point? What does the fact that most, if not all, R2P focal points are based in the Ministry of Foreign Affairs say about R2P? Doesn’t this pattern in a way contradict R2P’s focus on domestic prevention?

The global focal points initiative is another stepping stone to wider implementation of R2P. The idea behind having such focal points in governments and regional organisations is that they are tasked with raising atrocity prevention as a priority across the work of governments, whether that be conflict prevention, development assistance, or education. While it should, in essence, matter less which ministry the focal point is based in, but rather how active they are, the fact that most focal points to date have been appointed in ministries of foreign affairs does tell us something about how most states still view R2P. While the international community’s responsibility to assist prevention efforts and respond to the commission of atrocities in all states is of course an important element of R2P, this should not override the primary responsibility of states to protect their own populations. In this regard, more needs to be done to emphasise the importance of thinking of R2P in domestic terms – even in states where the commission of atrocity crimes seems unlikely. As mentioned above, we are seeing a worrying rise in intolerance, hate speech and incitement to violence in many countries, and these risk factors should be taken seriously and addressed appropriately.

Women, Peace and Security agenda

Many scholars and practitioners have noted that R2P lacks a gender lens. Where do you situate the Women Peace and Security agenda in the process of making the R2P norm more gender sensitive? Given R2P scepticism, do you think that moving towards merging these two agendas might risk bringing down the WPS agenda’s consensus power?

The criticism of R2P lacking a gender lens is partly justified. While explicit reference to gender is, for example, limited in tools such as the Framework for Analysis, in practice, there is greater emphasis on the role of gender inequality, gender-based violence, and the role of women in particular in assessments that are done using this tool. Having said that, there is certainly room for improvement, and a need to think more systematically about how to incorporate gender more effectively into R2P but also – and this is important – to make atrocity prevention an integral part of the WPS agenda. To this end, this year’s SG report on R2P will focus on this exact issue. It is particularly relevant given the significance of 2020 for both agendas – 25 years since the Beijing Declaration and Platform for Action for women’s rights, 20 years since the passing of the UN Security Council resolution 1325 on women, peace and security, and 15 years since the adoption of the R2P during the World Summit in 2005. I don’t think that highlighting the areas of complementarity have to mean merging the agendas. It is more about recognising the potential for mutual reinforcement that already exists.

Measuring R2P success

Despite the rich literature on R2P, much of it documents where R2P went wrong, and numerous scholars argue that it is obsolete or a “hollow norm”. Are there any success stories? The bigger question is: how do you measure R2P success today?

It is always easier to identify and focus on where things went wrong – this is also how we have been trained by the global news cycle. The focus on where R2P has not been successful is also linked to the emphasis on the use of military force to respond to atrocities. If we agree that the ultimate aim of R2P is to prevent atrocities from occurring in the first place, this is where we should measure success. This, however, is difficult, as it often leads us down the path of counterfactuals. Conflict averted and atrocities prevented are not newsworthy, and it is often difficult to say what would or could have happened had certain steps not been taken. There are, however, some examples of where collective action by states, regional actors and the international community successfully prevented the likely commission of atrocities. One often-cited case is Kenya, following election violence in 2008. Another is The Gambia. When the outgoing president Jammeh refused to hand over power to his elected successor and ordered troops to be deployed to act against the civilian population, ECOWAS deployed a mediation team. They were supported by the UNSC, the AU, EU and key states. When the mediation failed, ECOWAS deployed a coalition of military forces to protect the civilian population. Eventually President Jammeh stepped down, and ECOWAS forces remained to oversee the transition of power. These are two clear examples of the responsibility to protect in action.

A word for young people working on atrocity prevention

What advice do you have for young scholars and practitioners who are interested in working in the field of atrocity prevention?

I would strongly encourage anyone interested in this field to pursue it – there is much work that remains to be done, both on the academic side and in practice. In terms of students working on R2P and atrocity prevention: while there is certainly a place for theoretical work on issues such as norm evolution and contestation, my experience has been that there is an even greater need for policy-oriented research that can help to advance the implementation of the responsibility to protect in a very practical way. For example, this year’s Secretary-General’s report will focus on women and R2P. While there is evidence-based research showing a clear link between gender equality and women’s rights and a state’s propensity for conflict, much research is still needed to explicitly highlight the links between these issues and atrocity prevention in particular. Similarly, there is still much to learn about what causes atrocity crimes to be committed, and what types of responses are effective in preventing them in different contexts. More research is essential if we want to strengthen our prevention efforts. With regards to working in the field of atrocity prevention, I would underline that there is a need for individuals who are committed to prioritising atrocity prevention across all fields, so do not be discouraged if you do not find a job in an organisation specifically dedicated to it. What we need is for atrocity prevention to be mainstreamed and prioritised across domestic and foreign policy making, development cooperation, education, and so forth.

After a series of thought-provoking answers from Dr. Karen Smith, the interview came to a close with the R2P Student Journal engaging in role reversal. We invited Dr. Smith to state the most important and redundant questions regarding R2P today. In her opinion, the most important question related to the norm’s implementation: ‘How can we ensure effective prevention of atrocity crimes?’, whilst the most redundant question is: ‘Is R2P still relevant?’.

R2P is Unable to Protect the Stateless; It Is Time for the United Nations Security Council to Step Up

Posted on September 22, 2020

By Dimitra Protopsalti and Timothy Lionarons

Dimitra and Timothy are Master’s students at Leiden University in the Netherlands, currently enrolled in the two-year Advanced Master’s programme lnternational Relations and Diplomacy. This Master’s programme is taught in collaboration with the Clingendael lnstitute. @DProtopsalti 

The United Nations (UN), established in 1945 to promote world peace, instated the Responsibility to Protect (R2P) in 2005 to shield humankind from mass atrocities. However, the shortcomings of R2P are a product of its exclusionary nature. The UN, and subsequently the R2P, fail to protect an approximated 10 million of the world population: the stateless. R2P’s reliance on the states’ notion of citizenship has revealed a weakness in protecting the stateless. The Turkish invasion of the Kurdish region of Syria demonstrated exactly how the United Nations Security Council (UNSC) was unable to safeguard those most in need. Hence, it is vital that the UNSC broadens the inclusiveness of the R2P in order to protect stateless peoples.

R2P and the Problematic Interpretation of the UNSC

Contrary to humanitarian intervention, R2P places the primary responsibility to protect citizens from genocide, war crimes, crimes against humanity and ethnic cleansing on the state itself, in accordance with Pillar I. If a state is unable or unwilling to provide this protection, it is encouraged and pressured by the international community through both aid and sanctions (Pillar II). If the aforementioned measures still do not suffice, Pillar III entails the responsibility of the international community to intervene militarily.

When discussing the necessity to intervene in conflict-stricken states, the UNSC tends to refer to and rely heavily on a state’s primary responsibility to protect. All statements and resolutions by members of the UNSC since 2011 have emphasized Pillar I responsibilities and, by extension, have understated Pillars II and III that denote international responsibility. This is because international responsibility can cause infringement of state sovereignty.

However, sovereignty grants independence and inalienable rights that enable a state to determine who is granted citizenship and, by extension, the right to protection. The stateless, by nature, are deprived of citizenship and hence fall between the cracks of protection by both the state in which they reside and the international community.

Left to Their Own Devices: The Kurds, the Rohingya and the Bidoon

The Turkish invasion of Kurdish-occupied North Syria once more underlined the R2P’s inability to protect the stateless. With president Trump’s decision to withdraw American troops from the Rojava region, Turkey was given free rein to set up a so-called ‘safe zone’ in Syria. This posed a direct threat to the Kurdish population of the region, yet their cries for help were unheard. The largest stateless population in the world was left subject to the Turkish government – the same government that deems the Kurds and any affiliated political organizations to be terrorists of nature. What ensued was the killing of more than 70 individuals and forced displacement of 300,000 Kurds from the region.

Similarly, the Rohingya, residing in the Rakhine State of Myanmar, have been systematically targeted by the Myanmar government. As a result of R2P’s failure to protect the stateless, many died and thousands were forced to seek refuge in Bangladesh. As of 2017 Bangladesh counts an estimated 900,000 Rohingya refugees.

In Kuwait, the stateless Bidoon population (“bidun jinsiyya”, meaning ‘without nationality’) suffers the same fate as the Kurds and the Rohingya. They, too, are devoid of basic human rights and the protection against crimes as underlined in R2P.

These examples are often accompanied by vocabulary signalling genocide and/or ethnic cleansing. President Trump justified the invasion in North Syria as a process of “cleaning out” the region, whilst the Myanmar government initiated “clearing operations” against the Rohingya. The Rohingya were characterized as “roaches” to be “exterminated” and the Bidoon were deemed “illegal residents” by the Kuwaiti government. History has demonstrated that all too often such language results in atrocity as populations become stripped of their humanity.

Still, R2P fails to include the stateless in its protective framework.

Intervening to Intervene: A More Inclusive R2P

To prevent these conflicts from escalating further and resulting in atrocities which violate R2P principles, the UNSC must take immediate action. Specifically, the UNSC ought to adopt a new resolution which foresees the protection of all individuals within a state, regardless of their (lack of) citizenship. The final responsibility and decision to intervene lies with the UNSC. Yet, the UNSC has the ability to veto proposed R2P interventions and has done so in the past. Thus, it is critical that the UNSC demonstrates its ability to act as a unified actor and that Member States set aside personal interests to protect all of humankind. By adopting a new resolution that includes the responsibility to protect all people residing within the borders of a state, not just those granted citizenship, the UN will be able to prevent the stateless from falling between the cracks of R2P protection by the state and the international community. This enables Turkey-Syria, Myanmar, and Kuwait to be held accountable for their negligence to protect the Kurds, the Rohingya, and the Bidoon, respectively.

If the UNSC decides not to adopt the amendment, the remaining member states of the United Nations General Assembly (UNGA) should invoke Resolution 377, also known as the ‘Uniting for Peace Resolution’, to proceed to its adoption without the consent of the UNSC. Under the Charter, this resolution allows the UNGA to take collective action in order to protect and maintain international peace and security if the UNSC fails to do so. In this case, it enables the UNGA to protect the stateless.

To reiterate, we have proposed two distinct manners in which a new resolution can be adopted to ensure the inclusion and consequent protection of the stateless, by complementing the existing R2P regime.