The Responsibility to Protect in the Libyan Intervention: Ultimate Success or International Failure?

Caitlyn Duke, The University of Queensland, Australia

Caitlyn is a third year BA/LLB student at the University of Queensland, Brisbane, Australia, majoring in Peace and Conflict Studies. She works as a Paralegal in the Projects team at King&Wood Mallesons.

The 2011 intervention in Libya was the first time the United Nations Security Council (UNSC) authorised the use of force, couched in the norm of the Responsibility to Protect (R2P), against the wishes of a functioning state. This application of R2P, implemented through UNSC Resolution 1973 and led by the North Atlantic Treaty Organisation (NATO), was ultimately a failure. Although the NATO forces succeeded in protecting Libyan civilians from the violent regime, the motivations behind the intervention were not aligned with the ideological principles of the R2P norm, as NATO intervened with the intention to overthrow Muammar Gaddafi’s authoritarian regime. This paper will seek to first explain the R2P norm, followed by a consideration of the political environment within which it was applied in Libya in 2011. It will conclude with a critical analysis of NATO’s interpretation of UNSC Resolution 1973.

Assessing the Responsibility to Protect Success in Libya

UNSC resolution 1973 is considered by many (see Garwood-Gowers, 2013) to be a key example of R2P in action. Formally defined by the International Commission on Intervention and State Sovereignty (ICISS) in 2001, the R2P is ‘premised on the idea that sovereign states not only have the primary responsibility to protect their peoples, they also have a collective extra-territorial responsibility to protect populations from mass atrocities everywhere’ (Nuruzzaman 2013, p.58). In 2005, when the recommendations of the ICISS report and the notion of R2P were formally debated by the UN General Assembly, the norm was refined to ‘the responsibility to use appropriate diplomatic, humanitarian and other peaceful means … to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’ (United Nations General Assembly 2005, paragraphs 138-39). Further, in January 2009 a report by the Secretary-General titled Implementing the Responsibility to Protectoutlined a three-pillar strategy for advancing the agenda mandated by the Heads of State and Government at the 2005 Summit: Pillar I is ‘the enduring responsibility of the State to protect its populations’, Pillar II, ‘the commitment of the international community to assist states in meeting those obligations’, and Pillar III denotes ‘the responsibility of Member States to respond collectively in a timely and decisive manner when a State is manifestly failing to provide such protection’ (UN General Assembly, 2009,  A/63/677).

According to Thakur, ‘Libya, in 2011, provided an opportunity to convert the noble sentiments and solemn promise of R2P into meaningful action’ (2011, p.15). It was thus through the lens of the refined definition that the UNSC passed Resolution 1973, which authorised Member States to ‘take all necessary measures’ to protect civilians who were under threat of imminent attack in Libya, and also implemented a no-fly zone over the conflict areas of Libya (UN Resolution 1973). Although there is no explicit reference to R2P in the operative provisions, the preamble to the resolution states that the UNSC ‘reiterates the responsibility of the Libyan authorities to protect the Libyan population’ (UNSC, 2011).  This sets the tone for a clear theme of R2P throughout the operative provisions of the resolution.  Importantly, Resolution 1973 was the first time the UNSC authorised intervention without host state consent (Bellamy, 2011).[1]

The swift implementation of UNSC Resolution 1973 was necessary as the situation in Libya was continually deteriorating. The 2011 Libyan crisis was essentially an uprising against the regime of Colonel Muammar Gaddafi, who had led Libya for over forty years after a successful military coup on 1st September 1969 (Joffé, 2013). Gaddafi led Libya via a political system of his own creation known as a Jamahiriya (a ‘state of the masses’), whereby the people were theoretically sovereign (Joffė, 2011). Libyan citizens governed by expressing their views at small local gatherings and voting on matters at Basic People’s Congresses, which would then progress to the national General People’s Committee. However, in practice, only 10 per cent of Libyan people exercised their right of direct democracy over the Libyan body politic (Joffé, 2013). Through this system, Gaddafi technically had no ‘political, administrative, and traditional duties’ (Hajjar, 1980, p.185), yet he still ruled Libya with an iron fist, made all important decisions himself, and retained all power within a small state elite (Vandewalle, 2011). Brahimi explains that the ‘the formal administrative structures [of the Jamahiriya] merely served as vehicles for executing the policies that emerged from the informal structures controlled by Gaddafi’ (2011, p.607). Colonel Gaddafi’s novel system of governance is critical to an analysis of the pre-conflict environment because Libya had no formal centralised government, thus there was no avenue for democratic accountability or opposition to the oppressive regime. Further, it was difficult for the UN to negotiate an R2P operation under the Secretary-General’s proposed second pillar of R2P, assistance, as Colonel Gaddafi was not formally the sovereign leader of Libya. This meant that Gaddafi, in his self-proclaimed position as Guide of the Revolution, was the most powerful person in the Jamahiriya while simultaneously being the most sheltered (Hajjar, 1980, p.198). Yet, as Brahimi states, ‘there was some irony to the fact that Colonel Gaddafi’s regime was brought to the brink of collapse by the sort of popular grassroots politics he himself had rhetorically championed’ (2011, p.605).

The violent civil war in Libya began with peaceful demonstrations by the Libyan people, which were heavily influenced by the Arab Spring protests spreading from Tunisia to Egypt and beyond (Bellamy, 2011, p.838). The difference was that rather than surrender power, as the leaders of Tunisia and Egypt had done, Gaddafi responded with force (Daalder, 2012). The protests began after human rights lawyer Fathi Terbil was arrested on February 15th, Terbil himself explaining in a BBC interview that the demand for rights grew once ‘the security services used violence to deal with the demonstrators, killing or wounding many of them’ (Terbil, 2011). This violent response of the Libyan government soon escalated, with reports that the regime’s forces were ‘using tanks and warplanes against the demonstrators, and executing those officers who refused to deploy the instruments of the state against its people’ (Brahimi, 2011, p.606). Further, the UN Office of the High Commissioner for Human Rights (OHCHR) reported on ‘ill-treatment, beatings, injuries, rapes, torture, killings, enforced disappearances and arbitrary arrests of protesters including lawyers, human rights defenders and journalists’ (Ulfstein, 2013, p.159).

It became clear to the international community that the situation had reached critical levels when Gaddafi began to employ genocidal language, described by some as the ‘most candid statements of the kind from any government since the Rwandan genocide of 1994’ (Lynch, 2011, p.68). During an address on national television, Gaddafi proclaimed, ‘officers have been deployed in all tribes and regions so that they can purify all decisions from these cockroaches’ and ‘any Libyan who takes arms against Libya will be executed’ (ABC, 2011). It was evident from the government’s continued violent actions and the utilisation of such language, that the security of the Libyan people was at risk. The UNSC passed Resolution 1970 on February 26 2011, which called on Member States to make available humanitarian assistance in Libya, and ‘expressed its readiness to consider taking additional appropriate measures as necessary to achieve that’ (United Nations, 2011). But it was not until Resolution 1973 that the UNSC authorised action under the third pillar of the R2P.

By adopting Resolution 1973, the UNSC sought to protect the Libyan population, one of the core principles of the R2P. NATO, as a coalition of Member States, had the authorisation to act under the mandate of this resolution, and as such was the primary body enforcing its provisions (Ulfstein Geir, 2013). In the wake of the Libyan conflict, the New York Times, describing the operation as a ‘true alliance effort’, reported,  ‘NATO’s success was swift – saving tens of thousands of Libyan lives, grounding Gaddafi’s air force, and watching Libya’s coast’ (Daalder and James, 2011). The timely response was effective, directly correlating with the Pillar III obligation to initiate R2P operations in a timely and decisive manner. Then US Representative to the UN, Susan Rice, agreed, stating ‘I can’t remember a time in recent memory when the Council has acted to swiftly, so decisively, and in unanimity on an urgent matter of international human rights’ (cited in Dunne and Gifkins, 2011, p.522). NATO weakened the Gaddafi forces through repeated attacks, greatly assisting the rebel’s efforts. On this basis, the operations in Libya succeeded in ‘protecting civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya’ (UN Security Council, 2011), as was mandated in the resolution.

Unfortunately, the alleged success of the NATO operation in Libya is undermined by the underlying agenda behind the intervention. After resolution 1973 was passed by the UN, Gareth Evans wrote in a newspaper column:

Legally, morally, politically and militarily [the intervention] has only one justification: protecting to the extent possible the country’s people… When that job is done, the military’s job will be done. Any regime change is for the Libyan people themselves to achieve (Evans, 2011)

In spite of this assertion, the NATO forces appear to have been fighting not solely to protect the Libyan population, but to ultimately remove the Gaddafi regime. NATO interpreted Resolution 1973 as giving permission for a wide range of military activities. Within forty-eight hours of the resolution being passed, armed forces from the US, France, Britain, Canada and other NATO members conducted aerial bombings against Libyan military and intelligence corporations, which continued daily for the next eight months (Keating, 2013). The bombings were widespread and received continuing criticism for their severity. Russia, in particular, brought attention to the civilian casualties that resulted from the air strikes, while China expressed a similar dissatisfaction with an ‘arbitrary interpretation’ of the Resolution (Bellamy and Williams, 2011, p.31).

NATO was also clearly in favour of a regime change because of their explicit support of the rebels’ efforts. Not only were rebel forces trained in combat by French and British intelligence agencies and foreign military advisors (Ulfstein, 2013), but French forces also allegedly provided arms to Libyan rebels. These actions were deemed by the Russian Foreign Minister to be ‘a very crude violation of UN Security Council Resolution 1970’ (BBC News, 2011), which had established an arms embargo for Libya. In March, an opinion piece in the New York Times reported that ‘Western powers were now attacking the Libyan Army in retreat, a far cry from the UN mandate to establish a no-fly zone to protect civilians’ (Kuperman, 2013, p.114). Kuperman asserts that the assistance NATO supplied to the rebels who sought to overthrow Gaddafi was at odds with UNSC intentions, and instead extended the war and magnified the harm to civilians (2013, p.114). The reason NATO operations manifestly failed is because the use of force without the consent of the host state should primarily be about protecting the lives of innocent civilians. Yet, as India’s former ambassador to the UN, Hardeep Singh Puri, said, NATO instead became the armed wing of the Security Council, ‘dedicated not to protecting civilians in Benghazi but to overthrowing the government in Tripoli’ (cited in Nuruzzaman, 2013, p.64).

The regime in Libya was evidently one which violated human rights and imposed unfair living standards on its constituents. Therefore, the intentions of the NATO operation in removing the Gaddafi regime were at least in part marked by good intentions to protect Libyan citizens. However, attempting regime change is a misapplication of the R2P norm and contradicts international norms of state sovereignty. Further, although not explicitly endorsed by the UN at the 2005 World Summit, the original ICISS report recommended that when acting under the R2P, states should commit to a ‘responsibility to rebuild’, whereby intervening States should ‘provide full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert’ (ICISS, 2001, p.XI). NATO and UN Member States manifestly failed to assist Libya with this process in the wake of the intervention and the ensuing Libyan civil war. Nuruzzaman explains that after Gaddafi was killed by rebel forces, all that remained was ‘a hell of lawlessness, with 125,000 armed militias who have continued to control different parts of the country and clash against each other’ (2013, p.64).

Conclusion

The R2P reflects a dedication to the protection of populations from mass atrocity crimes. When the UNSC implemented the R2P in Libya through Resolution 1973, this was its original intention. The Gaddafi regime had resorted to intensive violence and used genocidal language during the Libyan civil war. However, the underlying motivation to remove the Gaddafi regime fuelled the NATO operation in Libya. This is in clear misalignment with the ideological principles of the R2P, thus constituting a failure of the norm in Libya.  As Keating (2013, p.175) asserts, this failure ‘through the military focus on inappropriate means and inappropriate ends creates an unfortunate precedent that has the potentially to fatally weaken the concept of R2P’. This precedent has arguably already begun to reverberate throughout current conflicts, with some academics reflecting on the failure in Libya and its impacts for the current situation in Syria (Morris, 2013; Nuruzzaman, 2013). One can only hope that the R2P, which aims to protect people from the most serious crimes, will be applied more appropriately in the future.

[1] Although the UN similarly authorised the United Task force to enter Somalia, this was ‘in the absence of a central government rather than against one’ (Bellamy & Williams 2011, p.825)

Bibliography

BBC News. 2011. ‘Libya: Russia decries French arms drop to Libya rebels’, BBC World News: Europe, (30 June)

Bellamy, A. J., & Williams, P.D. 2011. ‘The New Politics of Protection? Côte d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87(4), p.825-850

Brahimi, A. 2011. ‘Libya’s Revolution’. The Journal of North African Studies, 16(4), p.605-624

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Garwood-Gowers, A. 2013. ‘The Responsiility to Protect and the Arab Spring: Libya as the Exception, Syria as the Norm?’, UNSW Law Journal, 36(2), p.594

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A Norm-in-Formation? An Analysis of Brazil and China’s Normative Engagement with the Responsibility to Protect

Joseph Jegat, University of Leeds, United Kingdom

Joseph graduated from the University of Leeds in 2016.

The question of whether the Responsibility to Protect (R2P) is an established norm in international relations has been the subject of much academic debate in recent years. This paper will argue that R2P is best described not as a fully established norm, but as a ‘norm-in-formation’ (Negron-Gonzalez and Contarino, 2014). It reaches this conclusion based on three assessments of R2P. First, R2P is a complex norm with a contested nature, which prevents it from being fully internalised by states. Second, contestation surrounding R2P’s Pillar III can actually help to consolidate and further establish the norm rather than weaken it. Third, Brazil and China are engaging with R2P in a way that contributes to its normative formation and establishment in international relations.

This article will be split into three sections. The first section will analyse the complex nature of the R2P norm and will show that contestation is both a normal and beneficial part of R2P’s global diffusion. The second section will assess the ways in which Brazil and China have contributed to the continued normative formation of R2P through their respective concepts of ‘Responsibility while Protecting’ and ‘Responsible Protection’. The third section will offer conclusive remarks.

R2P: A Complex and Contested Norm

Norms in the discipline of International Relations can describe two things. First, they can describe existing social realities, or how the world is. Second, they can describe an aspiration, providing a framework for how the world ought to be (Ralph and Souter, 2015, p.68). As a normative aspiration, R2P is clear. There exists shared expectation that states have a responsibility to protect their populations, and that if they fail to do so, then the international community should help to protect these populations. This basic premise of R2P was unanimously adopted in 2005 and outlined in paragraphs 138 – 140 of the World Summit Outcome Document (UNGA, 2005). Whether R2P is an existing social reality, however, is less clear, and will be the focus of this essay.

R2P is best described as a ‘complex norm’ (Welsh, 2013), as it contains at least two norms, concerning both the responsibility of individual states and of the international community (Bellamy, 2014, p.22). The responsibility of states to protect their populations from genocide, war crimes, crimes against humanity and ethnic cleansing (Pillar I) is now a universally accepted norm embedded in international law. Pillar I has a high degree of what Jeffrey Legro (1997) terms ‘specificity’, meaning that it is clear and unambiguous, increasing the ‘compliance-pull’ of the norm (Franck, 1990, in Bellamy, 2014, p.7). The higher the specificity of a norm, the less open it is to contestation, which goes some way to explaining why Pillar I can be considered a fully consolidated norm in the discipline of International Relations. Pillar III (international intervention) on the other hand, and to a lesser extent Pillar II (international assistance), is much less universally accepted, partly because it lacks specificity, leaving it open to subjective interpretation.

The complex and sometimes ambiguous nature of R2P makes it especially vulnerable to criticism (Deitelhoff and Zimmermann, 2013; Garwood-Gowers, 2015). Pillar III in particular lacks conceptual clarity – highlighted, for example, by the lack of a threshold criteria for when international intervention becomes necessary and legitimate. For sceptics such as Aidan Hehir, the lack of clarity regarding intervention ‘influences the extent to which R2P can be deemed to constitute a “norm”’ (2013, p.151). Furthermore, Hehir (2013) argues that R2P had little, if any, influence over the United Nations Security Council (UNSC) decision to militarily intervene in Libya in 2011. Hehir’s criticisms highlight the fact that Pillar III remains highly contested, which prevents R2P as a whole from being considered fully established in International Relations.

Focusing solely on Pillar III, however, ignores the normative consolidation of both Pillars I and II. Although the 2011 Libyan intervention has somewhat stalled Pillar III progression, Pillar II has enjoyed widespread – although not absolute – support from states and has been the primary focus of the United Nations (UN) Special Adviser on the Responsibility to Protect since 2013 (Gallagher, 2015, p.1259). R2P has much more to it than just international military intervention. Perhaps paradoxically though, Pillar III contestation may help to further consolidate R2P in the long term.

Early Constructivist research on norms assumed that the ‘norm life cycle’ was a linear process, whereby norms emerge, cascade and become internalised in a progressive manner (Finnemore and Sikkink, 1998), with a general assumption that once norms had become internalised they were set in stone. More recent work has shown, however, that norms remain contested even after states have internalised them. Norms are of an ‘inherently contested quality’ (Wiener and Puetter, 2009, p.7) better understood as dynamic ‘processes’ subject to ongoing dispute rather than ‘things’ as such (Krook and True, 2010). Norm contestation is, in fact, a regular feature of a norm’s life, which is not necessarily synonymous with normative regression (Hofmann, 2015; Garwood-Gowers, 2015).

If anything, contestation can actually help to clarify and reinforce a ‘norm-in-formation’. Cristina Badescu and Thomas Weiss (2010) find that misapplication of R2P has helped to consolidate the norm by clarifying the boundaries of the concept. For example, former French Foreign Minister Bernard Koucher’s attempts to invoke R2P after 2008 Cyclone Nargis in Burma helped clarify that R2P was applicable only to the four crimes (genocide, war crimes, crimes against humanity and ethnic cleansing) and not for humanitarian assistance following natural disasters (Badescu and Weiss, 2010, p.362).

Following this logic, the fallout over NATO’s perceived misuse of R2P during the 2011 Libya intervention may help to clarify the boundaries of Pillar III military intervention. UN Resolution 1973 explicitly stated that authorisation had been granted for NATO to ‘take all necessary measures…to protect civilians and civilian populated areas under threat of attack’ (emphasis added, UNSC, 2011, p.3). It did not authorise regime change, which led to widespread criticism that NATO had overstepped its mandate and used R2P to mask a Western led liberal intervention with the ultimate goal of democratisation. Although NATO’s military actions have led to significant backlash against Pillar III (Garwood-Gowers, 2015, p.320) – as is all too visible in the UNSC stalemate over Syria – in the long term, the lessons learnt from the misuse of Pillar III in Libya may help to clarify the boundaries of Pillar III military action which will help make the norm more legitimate and applicable in the future (Acharya, 2013).

Post-2011 Pillar III contestation has been of what Nicole Deitelhoff and Lisbeth Zimmermann (2013) define as ‘applicatory contestation’. Critics of the NATO intervention have taken issue with the way in which R2P’s Pillar III was interpreted and applied in Libya. They have not directed their criticism towards the more fundamental idea that the international community has a responsibility to protect populations when states are incapable or unwilling to do so. According to Deitelhoff and Zimmermann, this type of contestation usually strengthens a norm’s validity by helping to clarify the boundaries of its usage (2013, p.14). The second type of norm contestation is ‘justificatory’, which challenges core values and may lead to normative regression. Although there is some evidence that post-Libya contestation has been of a more challenging ‘justificatory’ nature (Garwood-Gowers, 2015), in general, states accept that international involvement is necessary is certain crises where mass atrocities have been committed (Bellamy, 2014; Evans, 2016). This suggests that the normative values of R2P may be more internalised than many critics assume.

Constructive engagement: Brazil and China 

The first part of this essay has argued that R2P is a complex norm, comprising multiple tenets that have been internalised to varying degrees. It has also shown that ‘applicatory contestation’ surrounding Pillar III can assist with conceptual clarification, helping the norm to become further established in the long term. The remainder of this essay will focus on the normative contributions made by Brazil and China, as these illustrate the continued formation of the R2P norm. These states have been selected as both have developed important concepts that aim to shape the trajectory of R2P’s advancement. Firstly, however, it is necessary to briefly explore the theoretical ways in which states can influence the development of a norm.

Norm diffusion describes the process by which global norms come to be accepted at the local level. This dynamic and active process is characterised by argumentation at the domestic and international level, which can both advance and restrain normative development (Kenkel and De Rosa, 2015). States engage with this process in a bid to act as ‘norm makers’ rather than ‘norm takers’. Emerging powers such as Brazil and China are particularly keen to be viewed as norm makers – and especially do not want to be viewed as norm takers – as it may help them attain the status of global powers (Kenkel and De Rosa, 2015; Prantl and Nakano, 2011). How states engage with norm diffusion, however, depends, for example, on factors such as compatibility of the global norm with pre-existing local norms (Brosig and Zahringer, 2015, p.352).

For Amitav Acharya, norm creation and diffusion is a two way process best defined as ‘norm circulation’, which combines Acharya’s earlier work on ‘localization’ and ‘subsidiarity’.

[G]lobal norms offered by transnational moral actors are contested and localized to fit the cognitive priors of local actors (localization), while this local feedback is repatriated back to the wider global context along with other locally constructed norms and help to modify and possibly defend and strengthen the global norm in question (subsidiarity) (2013, p.469).

Similarly, Jochen Prantl and Ryoko Nakano (2011) argue that norm diffusion is best described not as a top down linear process but as a ‘feedback loop’, whereby states attempt to alter the properties of a norm to fit their own strategic interests. The concepts of norm circulation and norm feedback highlight the dynamic nature of norm diffusion, and show that states can play important roles in shaping the trajectory of a ‘norm-in-formation’.

Brazilian and Chinese engagement with R2P fits within this theoretical framework. These emerging powers have simultaneously embraced and contested different parts of the norm according to pre-existing local norms, and have then attempted to modify R2P in order to accommodate this feedback. Their clearest attempts at shaping the norm have been in the form of Brazil’s Responsibility while Protecting (RwP) and China’s Responsible Protection concepts. Although both states embrace the central principles of R2P, they have taken issue with the way Pillar III was implemented by NATO in Libya (Kenkel and De Rosa, 2015; Negron-Gonzalez and Contarino, 2014). In China especially, there has been great difficulty in reconciling Pillar III intervention with local norms such as a longstanding and deeply rooted commitment to non-interference and the inviolability of sovereignty (Prantl and Nakano, 2011).

Although Brazil is also bound to the idea of non-interference, South American states’ experiences of military dictatorships have led to a strong normative commitment to human rights (Welsh et al, 2013). RwP, therefore, is aimed at improving the implementation of Pillar III action. It does not undermine the principles of R2P. Brazil’s RwP concept argues for the need to have more specific criteria for authorising military intervention, as existing provisions in the 2005 World Summit Outcome Document are too vague (Tourihno et al, 2016). Similarly, China’s Responsible Protection builds on the ideas of RwP and the original International Commission on Intervention and State Sovereignty report ‘The Responsibility to Protect’ (2001), and outlines a stricter criteria for Pillar III military intervention. Responsible Protection stresses that any intervention must not negatively affect regional peace and stability, must not be interpreted to equate to regime change, and must not cause greater harm than already exists (Garwood-Gowers, 2016, p.103).

Brazil’s capacity to follow up RwP with concrete proposals for moving forward has been very limited (Welsh et al, 2013), and China’s Responsible Protection is not even official government policy (Garwood-Gowers, 2016). Despite these setbacks, Brazilian and Chinese engagement with R2P is of the utmost importance for the further development of R2P as a norm. These concepts have helped open up the debate on Pillar III intervention (Tourihno et al, 2016), and have highlighted the importance of getting non-Western emerging powers on board with R2P. RwP and Responsible Protection are forms of feedback which shape ‘norm circulation’ (Acharya, 2013), and hold great potential for progressing R2P in the aftermath of Libya. If states perceive themselves as ‘norm shapers’, they are much more likely to embrace and internalise said norm.

As Ramesh Thakur (2016) has argued, there should be a focus on improving the implementation of R2P to safeguard the norm from abuse and failure. This is exactly what RwP and Responsible Protection set out to do, by contesting Pillar III in an ‘applicatory’ manner which could help to clarify the boundaries of the norm, potentially bringing UNSC permanent 5 members Russia and China back on board (Evans, 2016). The willingness of emerging powers to engage with norm entrepreneurship is a positive sign, as the legitimacy of R2P is dependent upon acceptance by non-Western states (Garwood-Gowers, 2016). Long term consolidation of R2P requires a certain degree of consensus over Pillar III actions (Negron-Gonzalez and Contarino, 2014, p.270), and at present, the concepts offered by Brazil and China offer the most promising way forward.

Conclusion

This article has argued that R2P is best described not as a fully established norm, but as a ‘norm-in-formation’ (Negron-Gonzalez and Contarino, 2014). That is because R2P is a complex norm, combining multiple tenets that receive varying degrees of international support. Pillar I has become universally established and is enshrined in international law. Pillar III, on the other hand, is subjective and ambiguous, leaving it vulnerable to interpretation and contestation. Contestation, paradoxically, can aid with conceptual clarification, which will make the norm less vulnerable in the long term. In this way, post-Libya contestation may help to consolidate and further establish Pillar III, increasing the likelihood of state internalisation the R2P norm fully.

Furthermore, this article showed that through a process of feedback and circulation, Brazil and China have made valuable contributions to the continued normative formation of R2P. The RwP and RP concepts have raised important questions that must be addressed if R2P is to continue developing into its second decade. Assessing the point at which R2P can be considered an established norm poses difficulties by itself. Norms do not have a clear endpoint. They continue to evolve for as long as the norm is referred to and acted upon (Brosig and Zahringer, 2015, p.354). It is not within the scope of this essay to assess the theoretical point at which R2P may be considered fully established, but a step in that direction requires widespread consensus and internalisation of Pillar III. At present, this requires constructive engagement with non-Western concepts such as Brazil’s RwP and China’s Responsible Protection.

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The Responsibility to Protect and the Responsibility to Prosecute

Georgiana Epure, University of Cambridge, UK

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

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

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

Two Responsibilities, One Goal 

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

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

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

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

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

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

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

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

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

The Dangers of a Too Tight, Synchronised Relation

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

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

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

Conclusion

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

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

Enyeribe Oguh, University of York, United Kingdom

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

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

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

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

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

The Extent and the Limits of the Court’s Jurisdiction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unshackling the Elephant Court: Looking Ahead

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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The Responsibility to Protect: Four Challenges on the Road Ahead

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

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

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

  1. Climate Change and Mass Violence

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

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

  1. A New United Nations Secretary General (UNSG)

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

  1. Changing Power Balances

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

  1. The Rise of Non-State Armed Groups

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

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

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

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

[3] See UNSC RES. S/2004/567

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

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

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

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