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).

International Criminal Court, Rules of Procedure and Evidence, Doc No ICC-ASP/1/3(Part.II-A) (adopted 9 September 2002).

International Criminal Court, Regulations of the Court, Doc No ICC-BD/01-03-11 (adopted 29 June 2012).

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).

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

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950).

Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950).

Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950).

Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950).

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978).

Security Council Resolutions

Security Council resolution 827, UN Doc S/RES/827 (25 May 1993).

Security Council resolution 955, UN Doc S/RES/955 (8 November 1994).

Security Council resolution 1593, UN Doc S/RES/1593 (31 March 2005).

Security Council resolution 1828, UN Doc S/RES/1828 (31 July 2008).

Security Council resolution 1970, UN Doc S/RES/1970 (26 February 2011).

Secuirty Council resolution 2211, UN Doc S/RES/2211 (26 March 2015).

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].

African Union Documents

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.

References cited

African Union Peace and Security Council (AU PSC). 2013. Communiqué of the 386th meeting of the Peace and Security Council. 19 July 2013. PSC/PR/COMM.2(CCCLXXXV).

Al Jazeera. 2014. ‘Chad withdraws all troops from CAR’. Accessed 20 June 2015. Available at http://www.aljazeera.com/news/africa/2014/04/chad-withdraws-all-troops-from-car-201441743819156703.html.

Andersson, Andreas. 2000. ‘Democracies and UN peacekeeping operations, 1990-1996’. International Peacekeeping, 7(2), pp.1-22.

AU Chairperson. 2014. Statement by the Chairperson of the African Union Commission, Dr. Nkosazana Dlamini-Zuma: Ceremony marking the transfer of authority from MISCA To MINUSCA. 15 September 2014.

Bachmann, Olaf. 2014. ‘Only regional intervention can break cycle of violence in Central African Republic’. 8 February 2014: The Conversation.

Baptiste, Nathalie 2014. ‘CAR: A Forgotten Crisis at the Heart of Africa’. Foreign Policy in Focus. Accessed 20 June 2015. Available at http://fpif.org/car-forgotten-crisis-heart-africa/.

Beardsley, Eleanor. 2013. ‘Why French Troops Are Intervening In Africa — Again’. NPR. Accessed 20 June 2015. Available at http://www.npr.org/2013/12/15/251171604/once-again-french-troops-intervene-in-africa.

Boulden, Jane. 2006. ‘Double Standards, Distance and Disengagement: Collective Legitimization in the Post-Cold War Security Council’. Security Dialogue 37(3), pp.409-423.

Chafer, Tony. 2014. ‘Hollande and Africa Policy’. Modern & Contemporary France 22(4), pp.513-531.

Clark, Ian. 2005. Legitimacy in International Society. Oxford: University Press.

de Coning, Cedric. 2015. ‘Section 7: Partnerhsips and Transitions’. In United Nations: Peace Operations Aligning Principles and Practice, ed. Peter Mateja. Oslo: Norwegian Institute of International Affairs.

Deutsche Welle 2013. ‘France sends troops to Central African Republic’. Accessed 20 June 2015 Available at http://www.dw.de/france-sends-troops-to-central-african-republic/a-16695739.

Doss, Alan (Geneva Centre for Security Policy). 2011. Great Expectations: UN Peacekeeping, Civilian Protection, and the Use of Force. Research Series Number 4.

Ducrotté, Francois 2014. ‘EU Mission to the Central African Republic – EUFOR CAR Bangui (Part III)’. ISIS Europe. Accessed 17 December 2014. Available at http://isiseurope.wordpress.com/2014/04/11/eu-mission-to-the-central-african-republic-eufor-car-bangui-part-iii/.

Ero, Comfort 2013. ‘The Problems with “African Solutions”’. International Crisis Group. Accessed 12 December 2014. Available at http://blog.crisisgroup.org/africa/2013/12/02/the-problems-with-african-solutions/.

Hamilton, Rebecca 2014. ‘Samantha Power in Practice: The Surprising Effectiveness of the Obama Administration’s Most Recognizable Foreign-Policy Intellectual’. Accessed 4 June 2015. Available at http://www.foreignaffairs.com/articles/140709/rebecca-hamilton/samantha-power-in-practice.

Herbert, Sian, Nathalia Dukhan and Marielle Debos 2013. ‘State Fragility in the Central African Republic: What Prompted the 2013 Coup?’ GSDRC: Applied Knowledge Services.

Hultman, Lisa. 2013. ‘UN peace operations and protection of civilians: Cheap talk or norm implementation?’. Journal of Peace Research 50(1), pp.59-73.

Human Rights Watch (HRW). 2013. Central African Republic: Rampant Abuses After Coup. Accessed 4 December 2014. Available at https://www.hrw.org/news/2013/05/10/central-african-republic-rampant-abuses-after-coup.

Human Rights Watch (HRW). 2014a. Central African Republic: Peacekeepers Tied to Abuse. Accessed 20 June 2015. Available at https://www.hrw.org/news/2014/06/02/central-african-republic-peacekeepers-tied-abuse.

Human Rights Watch (HRW). 2014b. Joint Letter to Foreign Ministers of UNSC Member States. Accessed 15 May 2015. Available at http://hrw.org/node/123773.

Hurd, Ian. 2002. ‘Legitimacy, Power, and the Symbolic Life of the UN Security Council’. Global Governance 8(1), pp.35-51.

Hurd, Ian and Bruce Cronin. 2008. The UN Security Council and the Politics of International Authority. New York: Routledge.

International Crisis Group (ICG). 2013. Central African Republic: Better Late Than Never. Africa Briefing N°96. Accessed 4 December 2014. Available at http://www.crisisgroup.org/~/media/Files/africa/central-africa/B096-central-african-republic-better-late-than-never.ashx.

Irish, John and Daniel Flynn. 2014. ‘France risks long stay after misjudging Central African Republic’. 23 February 2014: Reuters.

Karlsrud, John. 2015. ‘The UN at war: examining the consequences of peace- enforcement mandates for the UN peacekeeping operations in the CAR, the DRC and Mali’. Third World Quarterly 36(1), pp.40-54.

Kromah, Lamii Moivi 2014. ‘New UN Peacekeeping Mission Faces Uphill Battle in Central African Republic’. IPI Global Observatory. Accessed 15 December 2014. Available at http://theglobalobservatory.org/2014/09/un-peacekeeping-mission-uphill-battle-central-african-republic/.

Lieberman, Amy. 2013. ‘The Masterminds Behind Security Council Resolutions’. Accessed 25 May 2015. Available at http://passblue.com/2013/03/14/the-masterminds-behind-security-council-resolutions/.

Lynch, Colum. 2013. ‘Can Samantha Power Wage a War on Atrocities in Central African Republic?’. 19 December 2013: Foreign Policy.

Meilhan, Pierre and Greg Botelho. 2013. ‘French deploys troops to Central African Republic as rebels enter capital’. CNN. Accessed 4 December 2014. Available at http://edition.cnn.com/2013/03/23/world/africa/central-african-republic-unrest.

MINUSCA 2014. ‘MINUSCA Background’. Accessed 20 June 2015. Available at http://www.un.org/en/peacekeeping/missions/minusca/background.shtml.

Mitchell, Matthew. 2014. ‘Central African Republic: MINUSCA Too Little, Too Late?’. 27 October 2014: The Journal of Diplomacy and International Relations.

Nichols, Michelle 2014. ‘U.N.’s Ban to France: Mull more troops for Central African Republic’. 11 February 2014: Reuters.

Nichols, Michelle 2015. ‘Ethnic cleansing in Central African Republic, no genocide: U.N. inquiry’. 8 January 2015: Reuters.

Olsen, Gorm. 2014. ‘“Great power” intervention in African armed conflicts’. Cambridge Review of International Affairs, pp.1-17.

Panel on United Nations Peace Operations (Brahimi Report). 2000. Report of the Panel on United Nations Peace Operations. A/55/305–S/2000/809.

Rohde, David. 2013. ‘The Threat of Genocide in the Central African Republic’. 12 December 2013: The Atlantic.

Roig-Franzia, Manuel. 2013. ‘U.S. envoy arrives in Central African Republic in bid to untangle humanitarian crisis’ 19 December 2013: The Washington Post.

The International Commission of Inquiry on the Central African Republic (Commission of Inquiry). 2014. Final Report. 22 December 2014. Available at http://reliefweb.int/sites/reliefweb.int/files/resources/N1471229.pdf.

UN News 2015. ‘Central African Republic: Security Council boosts UN mission presence as tensions continue’. 26 March 2015: UN News Centre. Accessed 20 June 2015 Available at http://www.un.org/apps/news/story.asp?NewsID=50434#.VYPmy85m3zI.

United Nations Security Council (UNSC). 2013a. Central African Republic Powerless to Resolve Crisis, Security Council Told, As Regional Leader Urges Stronger Mandate for Support Mission. 25 November 2013. SC/11188. Available at http://allafrica.com/stories/201311260205.html.

United Nations Security Council (UNSC). 2013b. Resolution 2127. 5 December 2013 S/RES/2127.

United Nations Security Council (UNSC). 2013c. Security Council, Unanimously Adopting Resolution 2127 (2013), Mandates Mission in Central African Republic to Protect Civilians, Restore State Authority. 5 December 2013 SC/11200.

United Nations Security Council (UNSC). 2014a. Security Council Issues Presidential Statement Reaffirming Commitment to Protection of Civilians in Armed Conflict. 12 February 2014 UN Meetings Coverage and Press Releases.

United Nations Security Council (UNSC). 2014b. UN Security Council 7092nd meeting. 6 January 2014. S/PV.7092.

United Nations Security Council (UNSC). 2014c. UN Security Council 7114th meeting. 20 February 2014 S/PV.7114.

United Nations Security Council (UNSC). 2014f. UN Security Council 7153rd meeting. 10 April 2014 S/PV.7153.

United Nations Secretary General (UNSG). 2014a. Report of the Secretary-General on the Central African Republic submitted pursuant to paragraph 48 of Security Council resolution 2127 (2013). S/2014/142 (3 March 2014). Accessed 5 December 2014. Available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2014/142.

United Nations Secretary General (UNSG). 2014b. Secretary-General’s remarks to the Security Council on the situation in the Central African Republic. Available at http://www.un.org/sg/statements/index.asp?nid=7471.

United Nations Secretary General (UNSG). 2015. Partnering for peace: moving towards partnership peacekeeping. 1 April 2015. S/2015/229.

US Fact Sheet (The United States Mission to the United Nations). 2015. ‘Fact Sheet: US Support for the Central African Republic’. Accessed 27 March 2015. Available at http://usun.state.gov/briefing/statements/224627.htm.

von Einsiedel, Sebastian, David Malone and Bruno Stagno Ugarte 2015. The UN Security Council in an Age of Great Power Rivalry. United Nations University Working Paper Series.

Wallis, Andrew. 2006. Silent Accomplice: The Untold Story of France’s Role in the Rwandan Genocide. London: I.B.Tauris & Co Ltd.

Warner, Jason 2013. ‘Who are the Séléka?’. 17 January 2013: CNN Global Public Square.

Welsh, Jennifer and Dominik Zaum. 2013. ‘Legitimation and the UN Security Council’. In International Organizations, Legitimacy, and Legitimation, ed. D. Zaum. Oxford: University Press.

Welz, Martin and Angela Meyer. 2014. ‘Empty Acronyms: Why the Central African Republic Has Many Peacekepers, But No Peace’. 24 July 2014: Foreign Affairs.

Williams, Paul. 2013b. ‘Regional and Global Legitimacy Dynamics: The United Nations and Regional Arrangements’. In Legitimating International Organizations, ed. D. Zaum. Oxford: University Press.

Willsher, Kim and Andrew Sparrow. 2013. ‘French troops sent into Central African Republic in effort to stop bloodshed’. 7 December 2013: The Guardian.

Wyss, Marco. 2013. ‘The Gendarme Stays in Africa: France’s Military Role in Cote d’Ivoire’. African Conflict & Peacebuilding Review 3(1), pp.81-111.

Zaum, Dominik. 2013. ‘International Organizations, Legitimacy, and Legitimation’. In Legitimating International Organizations, ed. D. Zaum. Oxford: University Press.

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.