Examining the ‘Responsibility to Protect’ Through a Critical Analysis of Norm Theory

Amy Hart, University of Leeds, UK

Amy is a politics graduate from the University of Leeds. During her time at university, Amy took a particular interest in international relations theory, which she continues to pursue in her spare time. She is now pursuing a legal career and has secured a training contract with Shearman and Sterling.

Abstract

The ‘Responsibility to Protect’ norm has received significant academic attention since it was adopted in 2005. Recent crises have put the norm into practice, leading scholars to question certain aspects, criticising its ambiguous nature. These academic criticisms have attempted to categorise this new norm, resulting in claims that R2P is not an established norm. This paper argues that norm theory is a process, whereby discussions and fluctuations actually improve the implementation of a norm. Distancing itself from the unattainable expectations scholars place on norms, this paper argues that R2P is established and calls for a reconsideration of the norm model to allow for greater flexibility and thus ensuring greater success for international norms.

The Responsibility to Protect (R2P), whilst being a relatively new norm, has become a central feature of international discussions. In light of the ongoing crisis in Syria, the R2P norm has received even more attention regarding its success, or lack thereof, which has resulted in questions concerning its status as an international norm. This essay will argue that the notion of norm establishment should be recognised as a fluid concept, rather than focusing on the fixed nature of the R2P doctrine and seeking to categorise it, which will inevitably result in a view that R2P has failed to become established. Whilst there may not be numerous outcome successes, it is precisely the misuse and contestation surrounding R2P that helps contribute to, and consolidate, its establishment within international society. Rather than a focus being placed on evidence of consistent intervention, R2P’s establishment should be seen as a process to promote discussion and consideration, instead of confining humanitarian success within fixed parameters with a rigid outcome of intervention. This paper begins by examining the criticisms of R2P as an established norm, with a norm defined as “social reality” (Ralph and Souter, 2015, p.68), to provide context for the arguments that will be challenged later in the paper. The next section will comprise of four key points to demonstrate that R2P is in fact established; (1) redefining the norm model (2) the importance of localisation and subsidiarity; (3) the over-emphasis on pillar three; (4) the reality of power hierarchies. This will culminate in the conclusion that R2P is an established norm and that analysts should manage their unattainable expectations which prevent an acknowledgment of the essence and spirit of R2P in the international sphere.

R2P is not an established norm

Lack of consensus over meaning

R2P critics argue that it is not established due to a lack of consensus over the definition of the norm. Shawki (2011, p.183) argues that there are “significant disagreements” surrounding the norm, which prevent it from overcoming the evolutionary stages of norm development. Using the case of Cyclone Nargis in 2008, critics note that it exposed the “starkly diverging interpretations that states attach to the concept of R2P” (Reinold, 2010, p.56), which prevented a coherent coordination of a response to the crisis. In a more recent example, the differing responses to Libya and Syria, where the former received a swift response and the latter received a delayed response, appears to show confusion and “selectivity” (Gallagher, 2015, p.18) regarding the situations in which the R2P should apply (Gallagher, 2015). For Shawki (2011, p.138), this demonstrates that the norm has “not yet reached the tipping point”      as if it were truly internalised, there would have been an automatic response rather than such intense debates over whether intervention should occur. The “controversial” (Shawki, 2011, p.182) nature of the norm prevents the development of a consensus over its meaning, reducing the chances that it will become part of international law (Reinold, 2010) and preventing its establishment as an international norm. Thus, it is clear that R2P has failed to develop a concrete approach to responding to crises due to the lack of consensus surrounding its meaning. The prevailing oscillation within the international community, shown through a lack of uniformity to responses, reflects how it is not an established norm.

The R2P has failed to change state behaviour

A further criticism of the R2P is the notion that it is purely rhetoric with little substance, and subsequently does not alter state behaviour. For instance, Hehir (2012, p.3) argues that the R2P represents an “illusion of progress” as behind its popularised name little action follows. The proliferation of literature and broader international attention have diluted R2P, resulting in its utilisation for a number of theories and proposals that depart from the initial purpose. This in turn demonstrates that the R2P has failed to “consolidate its identity”      and is a part of a series of “rallying cries” (Hehir, 2012, p.5) that the international community has united around with few substantial implications. This idea is supported by the fact that R2P did not actually change international law, enhancing its inability to become established, as it was never codified into law and was only implemented through common agreement. Whilst R2P may have been successful in altering the political discourse of intervention, there has been little change to political action. Therefore, it is not an established norm as it has not re-shaped state behaviour; it is not powerful enough to alter the political will of a state due to its dependency upon moral advocacy rather than having legal significance. In order for R2P to be consolidated, Hehir proposes UN reform to avoid cases where political will prevents protection, such as in Rwandan in 1994.

Inertia of pre-existing norms

A third criticism is that R2P does not actually offer anything new to the political arena. Reinold (2010) argues that despite claims that sovereignty has been transformed by the doctrine, the fundamental tenets of the international community remain the same. Reinhold highlights that R2P is not required to recognise the duty of states to prevent genocide, since this was enshrined over sixty years ago in the Genocide Convention (UN, 1948). This shows that R2P reinforces pre-existing precedents rather than creating any new means to protect people at risk of atrocities. This is emphasised by an analysis of US reluctance to intervene outside of their jurisdiction. Despite evidence of atrocity crimes in Darfur, the US did not invoke R2P, arguing that Sudan should protect people within their own territory. This demonstrates the persistence of original ideals of sovereignty, showing little theoretical change. Even supporters of R2P have noted the resistance to change and the lack of originality, with Bellamy arguing that it is “neither new…nor radical” (2009, p.20). Thus, R2P is not an established norm as it has failed to offer new precedents surrounding intervention and has failed to shift the fundamental logic of sovereignty that preserves domestic jurisdiction. This also feeds into the earlier point that state behaviour is left unaltered by the R2P

Collectively, these arguments form the basis for the view that R2P is not an established norm. A lack of consensus over its meaning makes its establishment in international law unlikely, preventing conceptual clarity and in turn entrenching ambiguity. This demonstrates that R2P has not consolidated a coherent identity amongst the international community, nor has it changed traditional norms of sovereignty. A culmination of these shortcomings means that R2P has little power to change the way that states behave, hindering the progression of the norm and impeding its establishment. These criticisms will now be refuted through four points that challenge these perceived weaknesses of the R2P.

R2P is an established norm

Norm model modification

A shift from traditional models of norm analysis that has a linear approach, insensitive to reality, exposes the established nature of R2P. The traditional norm “life cycle” involves three stages; emergence, cascade and internalisation (Finnemore and Sikkink, 1998).  According to this model, in order for a norm to become established it should have an “automatic” nature, by which states instinctively conform to it rather than questioning its premise; this is referred to in the model as the “taken-for-granted quality” (Finnemore and Sikkink, 1998, p.904, 895). As demonstrated by the criticisms in the previous section, it is evident that if this traditional model is employed it would serve to show that R2P is not established; conceptual ambiguity, inertia and inability to alter states behaviour are not indicative of an automatic response. As Shawki (2011, p.183) asserts, “R2P has not yet reached the tipping point”      that the norm model requires for establishment, due to the controversy and inconsistency surrounding its implementation. Thus, from this perspective R2P is “an evolving” (Shawki, 2011, p.175) rather than an established norm.

However, revisionist theorists, such as Gallagher (2015) have opposed this model for being too linear and argue that a modified version can provide an improved understanding of norms. The revisionist theorists assert that norms cannot be fixed norms that follow a structure in order to become established, enforcing a “tension between a static view of norm content and a dynamic picture of norm adoption and implementation” (Krook and True, 2012, p.103). Simplifying the development of a norm to a formula creates an expectation that all norms will subscribe to this routine evolution and that contestation paralyses a norm between stages, thus preventing establishment. This creates “expectation gaps” (Gallagher, 2015, p.254) as demands for R2P to conform to this model mean that any sign of disagreements that are not a feature of this model immediately disqualify it from an established status. The construction of a “crude birth/death narrative” (Gallagher, 2015, p.255) whereby R2P is forced to be positioned within a strict dichotomy, prevents it from developing as obstacles will inevitably emerge. This is demonstrated by the rhetoric surrounding the cases of Libya and Syria; R2P went from being branded as being fully utilised due to the fast response in the former, to the latter being used to show the “death of R2P” (Newton, 2013). Assessing a norm within such narrow boundaries enforces unattainable expectations. If inaction automatically triggers claims that R2P is dead and is not established, it is unclear as to what is expected of the norm in order for it to assume an established status. Thus, a revision of the norm model will facilitate a conceptualisation that is sensitive to the necessity of fluidity in the case of R2P, rather than forcing its categorisation within a particular stage of a cycle that induces unattainable expectations. Changing the means of analysis will enable critics to see the establishment of R2P as an international norm.

Furthermore, this rigid type of analysis negates the importance of contestation, leaving “norms analytically underestimated” (Weiner, 2004, p.198). Norms will struggle to become recognised as established if the traditionally rigid framework is applied and may overlook elements that are central to its consolidation. As Vans Kersbergen and Verbeek (2007) argue, ambiguity and debates over the meaning of norms can be the reason for their existence. This can be seen through the length of time and number of revisions it took for R2P to even enter the vocabulary of international debate. In contrasts to scholars that criticise the ambiguity of R2P (Shawki, 2011; Hehir, 2013), this shows that it is this precise ambiguity that has allowed R2P to flourish and become integrated within the international arena. Confining a norm to the parameters of consensus negates the importance of contestation; an essential prerequisite, out of which a norm can be refined as a result of disagreements. This can be seen from the Iraq crisis in 2003, which ironically enabled clarification of R2P given its failure in this case (Welsh, 2013). Moreover, critiquing R2P for lacking clarity and for being inconsistent is to critique the fundamental tenets of R2P. Inconsistency is enshrined due to R2P’s “case-by-case” (United Nations General Assembly, 2005, p.30) nature. Critics should redirect their focus to distinguishing between “legitimate and illegitimate inconsistency” (Gallagher, 2015), rather than grouping all deviances as evidence that R2P has not been consolidated and lacks rigidity. Thus, contestation should not be criticised for preventing a norm from being established but is a useful tool through which R2P can be improved and consolidated (Badescu and Weiss, 2010). Norms should be seen as “works-in-progress rather than as finished products” (Krook and True, 2012, p.104), corroborating the idea of exceedingly high expectations. If R2P is viewed in line with this perspective, it is evident that it is in fact an established norm and simply developing as part of an ongoing debate, rather than being constricted by a norm model that does not account for inevitable change.

The weaknesses of the traditional norm model have addressed the criticisms that R2P is not established due to inconsistency and ambiguity (Hehir, 2012; Reinhold, 2010). Conforming to the traditional norm model developed by Finnemore and Sikkink (1998) produces a rigid framework through which R2P is judged, harming its potential to become regarded as established. Not only does this model set unrealistic expectations, but it also overlooks the unique nature of R2P that allows it to operate on a case-specific basis, necessary for the conflicting international arena. Modifying this norm model permits a more realistic view of norms, sensitive to the unavoidable changing international environment. Thus, this section has shown why the criticisms of R2P are a barrier to its visible establishment and that changes to the linear and formulaic original conception will enable R2P to move beyond the assumed evolution stage.

Localisation and subsidiarity

R2P is an established norm as through localisation and subsidiarity it is evident that states see engagement with the norm as important to their identity. The traditional conceptualisation of norms ignores the importance of local actors in norm development, despite the fact that “localisation, not wholesale acceptance or rejection, settles most cases of normative contestation” (2004, p.239). Acharya (2013, p.469) uses a theory of “circulation” in which norms are adapted and modifications are then fed back to the original norm, referred to as norm subsidiarity. Whilst critics have argued that this lack of consensus over meaning shows lack of establishment (Reinold, 2010; Shawki, 2011), Acharya claims that this is in fact indicative of the opposite. Chekel (1999) supports this view, arguing that the distance between the norm makers and norm takers is an inevitable consequence of norm establishment and should not be construed as an impediment to consolidation. Using Brazil’s ‘Responsibility While Protecting’ as an example, this shows a state embracing the premises of the norm and a degree of acceptance, engaging and adapting so that it may be enshrined within a particular context. This fosters a culture of compliance; if a norm fits with a state’s principles they are more likely to interact with the norm, increasing its international presence and therefore showing its establishment. This idea also extends to cases where states actively refuse to engage with a norm or do so in a way that is generally disputed and perceived as straying from R2P. Russia’s actions in the war against Georgia are claimed to have been an abuse of the R2P norm, but despite this initially being portrayed as a failure of the norm’s establishment, this misuse by a specific actor enabled greater clarification (Gonzales and Contarino, 2014). Similarly, China’s precarious relationship with R2P has forced them to “respond to the naming and shaming” (Prankl and Nakano, 2011, p.214) of accusations of violations. Rather than this showing a lack of establishment due to failure of complicity, China is recognising its validity, reinforcing R2P’s establishment. This also serves to strengthen a norm, as rather than states passively receiving an idea, they are actively engaging with it and moulding it to suit their political conditions, generating greater consensus behind it and ensuring a greater probability of its survival due to compatibility resulting from localisation and subsidiarity. States exhibiting a degree of agency should not be perceived as an obstacle to establishment but are indicative of an established norm.

Brazil’s ‘Responsibility whilst Protecting’ is also demonstrative of the established nature of R2P as developing states recognise it as a means to obtain a status as a significant global power. As Gallagher and Ralph (2015) assert, the belief that R2P is a mechanism to ascend in global power hierarchies shows that supporting or rejecting the norm is central to a state’s identity and shapes not only how a state perceives itself, but how other actors perceive it. This highlights how R2P imposes “new expectations” (Kenkel and de Rosa, 2015, p.333) on states and regions as they strive to gain a higher status in the international arena. Therefore, R2P is established as it fundamentally affects the direction of the world order as states are inclined to conform to ideas that have become a prerequisite for power. This supports the idea that R2P is an established norm as if it did not have this level of entrenchment, less emphasis would be placed on it as a source of legitimacy.  R2P’s definitive role is thus evidence of its established nature; incentivising emerging powers and acting as a means to access greater power in the realm of international politics. This directly refutes Hehir’s (2012) claim that R2P is nothing more than rhetoric as if this were the case it would not have to ability to shape the identities of states nor have the ability to determine their position on the international stage. Furthermore, it challenges the claim that the way in which states behave is not affected by the norm. The R2P norm does bare significance in state behaviour, regardless of whether they are motivated by opportunism or on a moral basis. If R2P was not an established norm, states would not invest time in attempting to engage with the norm, both in terms of localisation and subsidiarity processes.

This section has shown that claims by Hehir (2012) that R2P is rhetoric rather than substance are flawed. Local actors actively engaging with the norm shows a degree of acceptance of the fundamental premise of R2P and a desire to integrate it within their own system, demonstrating norm establishment. Furthermore, modifications through subsidiarity strengthens it through improvements that allow it to be entrenched within all states. The influence that it has on state behaviour reinforces that R2P extends beyond rhetoric, having implications for policy as well as informing state identities and serving as a source of legitimacy for states seeking an elevated status in the international sphere. Thus, R2P is an established norm as it frames state actions and legitimates behaviour.

Over-emphasis on Pillar III

Emphasising the military intervention pillar of R2P discounts the importance of other aspects, inevitably producing a conceptualising of an un-established norm. Pillar three, regarding military intervention, tends to be the focus of any discussion surrounding R2P (Shawki, 2011) and has become the criteria upon which the norm’s effectiveness is measured. However, despite this tendency, Badescu and Weiss (2010) assert that R2P is not synonymous with intervention and consists of many other tools such as prevention. Welsh corroborates this view, stating that “R2P is much more than just a means by which the international community can react- militarily or otherwise- to the commission of atrocity crimes” (2016, p.217). Shifting the definitive focus of the doctrine away from the use of force reveals that R2P has been consolidated as the use, of lack thereof, of military intervention is “not an appropriate ‘test’ for effectiveness” (Welsh, 2013, p.367). This is due to the fact the social reality will never create conditions that will allow for consistent intervention to be the appropriate reaction; each case is      unique, and inconsistency is embedded within the R2P doctrine to enable this. If analysis of R2P acknowledges this and broadens the lens through which R2P is assessed, the doctrine can be rewarded for the other objectives that it satisfies; acting as a “catalyst for debate” (Welsh, 2013, p.387) rather than an immediate justification for the use of force.

The case of Syria shows the damaging effects that over-emphasis on intervention can have, detracting from the fundamental internalised nature of the norm. Syria tends to be heralded as a significant failure, given the growing rise of evidence of atrocity crimes being committed and a limited response (Nuruzzaman, 2014). However, this does not mean that the R2P norm is not established but that it has influenced the response in other ways. R2P has been intrinsic to the majority of debates surrounding the use of force in the crisis and has guided deliberations, visibly seen through Obama’s rhetoric around Syria (Glanville, 2016). The norm cannot be branded as unestablished due to the absence of military intervention as this negates the impact of the norm at a constitutive and regulative level; what should be emphasised is that R2P meant that states felt that they were bound to act in some way to protect Syrian civilians or justify their actions if they did not act. This challenges claims that R2P is not an established norm based on its inability to change behaviour. Whilst this may not always result in action, the change is in the fact that states recognise the significance of the responsibility in their decision and that it is fundamental to discussions. Equating the fulfilment of the norm with intervention ignores other methods enshrined within R2P and misconstrues the original intent, as well as interferes with an analysis focusing on the success of R2P in establishing a framework for response.

Thus, this section has demonstrated that R2P is an established norm as it has guided discussions on cases. The trends in analysis to solely use military intervention as the determinant of the norm’s effectiveness provides an account that is narrow in scope. Shifting the focus can enrich discussion to allow the R2P norm flexibility to work on each case differently, as was originally enshrined within the document as well as to respond with the consideration of all factors. Syria is a crucial case in terms of R2P’s      lifespan. The lack of military action shows that the importance of R2P can be seen in other areas not involving the use of force. R2P is therefore established in the sense that it provides a “duty of conduct” (Welsh, 2013, p.387) for states to follow and is acknowledged even when action does not occur.

Reality and Compromise

The established nature of R2P has been clouded by an analysis that does not reflect the nuances within the international environment and the myriad of actors influencing a state. The element of self-interest ultimately infiltrates the majority of international actions, which the norm of protection is also subjected to. States have multi-faceted interests which will affect their behaviour (Ralph and Souter, 2015), which is an inevitable product of a fluctuating international sphere and different diplomatic relationships. As a result, when internalising a norm, states will have to navigate through the terrain of multiple norms rather than isolating the specific elements of R2P, which will often favour their own strategic interests. However, critics have argued that this means it is not established. Wheeler (2000) argues that regardless of the motivations, if civilians are protected and the norm is fulfilled as a by-product of promoting self-interest, this does not mean that the norm has not been established, but that it is part of a plurality of norms. This in reinforced by Paris which he describes as the “mixed motives problem” (2014, p.572) as states will not just be driven by the moral aspects of the R2P doctrine but also their economic and political interests. Assessments of R2P branding it a developing, rather than a consolidated, norm due to this problem judge it unfairly; it is inevitable that R2P will be enmeshed within the various interests of states yet the fact that it can still be fulfilled and enters into discussion alongside these interests is evidence of its establishment. Thus, having a realistic outlook prevents the unavoidable self-interest motivations from impeding upon the achievements of the R2P norm and its consolidated nature amongst other established interests.

Furthermore, the interplay of R2P with other factors also means that its implementation has to be compatible with the existing international normative framework. This is emphasised by Krook and True, arguing that norms are defined “in ways that they anticipate will resonate with audiences” (2012, p.110). If R2P was to propose drastically radical changes to the international community, compliance with the norm would be extremely low, rendering it a failure. The idea of the R2P norm being a “cultural match” (Checkel, 1990) refutes Reinold’s (2010) critique that R2P is not established as it has failed to change existing norms and has not established any new precedents. In order for a norm to obtain a consolidated nature it has to be sensitive to its political environment, which may be hostile towards significantly new ideals. Expanding upon what has already been established is not evidence of a lack of consolidation but demonstrates cautious planning of a norm that has been consolidated with ease amongst existing ideas.

In sum, when assessing the established nature of the R2P norm, the reality of international politics has to be considered. If R2P is to be criticised for not being established simply because it is not the sole driving force behind implementation, then this is an example of flawed thinking (Paris, 2014) and will produce a view of R2P that is setting expectations that cannot be obtained. If the contents of the norm can be achieved in light of self-interest being promoted, this is still evidence of its established nature as it can operate effectively amongst other factors. Furthermore, inertia has a purpose of ensuring greater compliance and an ease for internationalisation and should therefore not be the basis of criticism. Thus, as has been the case for the previous sections, an analysis of the established nature of R2P should be sensitive to the political environment in which it is implemented, as well as the pre-existing normative framework, in order to show its truly consolidated nature.

Conclusion 

In conclusion, it is clear that R2P is not a succinct norm that can be easily categorised as established. The ambiguity of the norm has hindered the development of a clear plan for a response and has manifested a lack of consensus over the norm. The lack of radical change has reinforced the idea that R2P is not established, given that it has not changed existing precedents and its popular use has detracted from the original aims, stimulating claims that it is simply rhetoric. However, this essay has shown that these criticisms are only substantial if a traditional norm model is applied. This type of analysis is too formulaic in its approach and will inevitably result in R2P being branded as unestablished given its narrow scope. Broadening the lens produces an analysis sensitive to the fluctuations of the international political environment and is therefore a more legitimate means through which the R2P norm can be assessed. Using this modified approach, it is evident that R2P is established as states and regions are actively working to entrench the doctrine within their existing political frameworks, thereby strengthening the norm. Shifting from a focus on intervention, R2P can be seen to have framed debates on current pressing crises such as Syria and forms part of the numerous norms that affect state behaviour. Thus, critics demand too much from a norm that will inevitably fall short of establishment expectations and altering this approach will show the consolidated nature of the norm that ultimately frames international debate.

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The Responsibility to Protect, An Established Norm in International Relations? Misapplication in Myanmar, Application in Libya and Non-Application in Syria

Julia Smith, London School of Economics and Political Science, UK

Julia Smith is a current MSc student at the London School of Economics and Political Science, where she studies Gender, Media and Culture. She previously graduated from the University of Leeds with a BA in International Relations.

Abstract

R2P is often described as a ‘norm’, but there is considerable disagreement about what kind of norm it constitutes. This paper analyses the normative status of R2P and suggests that the contestation and inconsistency that continue to plague R2P make it difficult to argue that it is an established norm in international relations, as this implies a degree of stability and permanency. However, the paper also challenges the idea that international norms can ever become established in this way, as this is based on a false expectation of linear normative development. It suggests that instead of progressing in a unidirectional way towards universal establishment, norms are never stable and are constant ‘works-in-progress’ that are continually contested and transformed through practice and by a range of actors. The paper uses the examples of R2P’s misapplication in Myanmar in 2008, controversial application in Libya in 2011 and non-application in Syria since 2011 to demonstrate this. These examples highlight how contestation surrounding R2P has led to valuable feedback in the form of initiatives such as Responsible Protection, Responsibility While Protecting, The Responsibility Not to Veto and the Uniting for Peace Resolution. The engagement of a wide range of global actors in challenging and transforming R2P through these initiatives is ultimately beneficial for the legitimacy and the evolution of the norm.

Introduction

The UN’s failure to respond to the Rwandan genocide in 1994 was one of many cases that highlighted the inability of the international community’s existing framework to effectively respond to mass atrocities (Thakur, 2016). In 2000, then UN Secretary General Kofi Annan challenged member states, asking ‘if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that affect every precept of our common humanity?’ (Annan, 2000, p.48). The International Commission on Intervention and State Sovereignty (ICISS) was founded shortly after to address this dilemma and their 2001 report first introduced the concept of the Responsibility to Protect (R2P). The 90-page report was later condensed into 3 paragraphs and endorsed by all UN member states in the 2005 World Summit Outcome Document.

R2P reconceptualised sovereignty as a responsibility, stating that the primary responsibility for the protection of populations lies with the state, but in instances where a population is suffering grave harm in the form of genocide, war crimes, crimes against humanity or ethnic cleansing, and the state is unwilling or unable to avoid it, the principle of non-intervention is replaced by the responsibility to protect (ICISS, 2001). When a state is ‘manifestly failing’ to protect its population, it becomes the responsibility of the international community to first assist the state in meeting its responsibilities and, when necessary, to intervene without consent from the state (Ban, 2009, p.1). R2P reframed the controversial principle of humanitarian intervention by shifting focus from the rights of intervening states to the rights of populations and was thus proposed as the answer ‘to reconciling the neuralgic rejection of humanitarian intervention by the global South with the determination by the North to end atrocities’ (Thakur, 2016, p.417).

R2P is often described as a ‘norm’, defined as a ‘collective understanding of the proper behaviour of actors’ (Legro, 1997, p.33). Norms have both regulative and constitutive effects, as they both regulate state behaviour by setting a standard of appropriateness, but also shape state identities and interests (Labonte, 2016; Glanville, 2016). Though most scholars recognise R2P as a norm, there is much less consensus about what kind of norm it constitutes. Whilst Bellamy argues it is an ‘established’ norm, many scholars point to the significant contestation surrounding R2P, as well as its inconsistent application, to suggest it is still an ‘emerging’ norm (Bellamy, 2015; Serrano, 2011; Junk, 2016). Others have pointed to the reluctance of the international community to intervene in mass atrocities post-Libya as evidence that R2P is ‘a norm in decline’, or worse, already ‘dead’ (Voordewind, 2017, p.1; Newton, 2013; Reiff, 2011).

This paper suggests that the contestation and inconsistency that continue to plague R2P make it difficult to argue that it is an established norm in international relations, as this implies a degree of stability and permanency. However, the idea that R2P can become established in this way is predicated on a false expectation of linear normative development, based on Finnemore and Sikkink’s norm life cycle model (Finnemore and Sikkink, 1998). My understanding of normative development is instead informed by scholars such as Krook, True and Acharya, who suggest that instead of progressing in a unidirectional way towards establishment, norms are never stable but are ‘works-in-progress’ that are constantly contested and transformed through practice and by a range of actors (Krook and True, 2010; Acharya, 2013). Examples of R2P’s misapplication in Myanmar in 2008, controversial application in Libya in 2011 and non-application in Syria since 2011, demonstrate this argument clearly. R2P’s misapplication in Myanmar prompted ‘conceptual clarification’ about the scope and applicability of R2P, whilst R2P’s controversial application in Libya and non-application in Syria have led to significant proposals such as Responsibility While Protecting and Responsible Protection and have reignited debates about The Responsibility Not to Veto and the Uniting for Peace Resolution, all of which are valuable contributions to R2P’s normative evolution (Badescu and Weiss, 2010, p.355). Instead of showing R2P to be clearly established or not established, these cases demonstrate how ‘norms are subject to ongoing attempts to reconstitute their meanings, even as they exert effects on patterns of social behaviour’ (Krook and True, 2010, p.109).

R2P: Established Norm or Not? 

Much of the discourse surrounding the normative status of R2P is influenced by Finnemore and Sikkink’s norm life cycle theory, which suggests that norms pass through three stages (Finnemore and Sikkink, 1998). The first stage is ‘norm emergence’ where norms are promoted by ‘norm entrepreneurs’. Then the norm reaches a ‘tipping point’ and enters the ‘norm cascade’ stage, when a ‘critical mass’ of at least one third of all states adopts the norm, including ‘the most critical states’, without whom the success of the norm is jeopardised. Following ‘norm cascade’, norms enter the final stage of ‘norm internalisation’ where they achieve ‘a taken-for-granted quality’, are no longer subject to debate, and could be described as ‘established’ (Finnemore and Sikkink, 1998, p.895-901). Applying this theory to R2P, it might seem reasonable to conclude that it has successfully passed through the stages of ‘norm emergence’ and ‘norm cascade’. The work of norm entrepreneurs such as Gareth Evans, Ramesh Thakur, Edward Luck and Kofi Annan successfully lead to its unanimous adoption by all UN member states in 2005 (Labonte, 2016). Since then, the UN Security Council (UNSC) has referred to R2P in 69 of its resolutions (Global Centre for R2P, 2018). There has also been some domestic institutionalisation of R2P. In 2010, the R2P Focal Points Initiative was launched and 59 countries from across the globe have now appointed a senior level official to be responsible for the domestic promotion of R2P (Weiss, 2011). Moreover, the EU and 49 other states have joined the organisation Group of Friends of the R2P, reaffirming their commitment to the norm (Hehir, 2017). Thus, R2P has been adopted by a majority of the world’s states, including those ‘most critical’, suggesting it has successfully cascaded throughout the international system.

However, Shawki suggests that this would be an inaccurate conclusion; although R2P has been officially endorsed by UN member states, it remains highly contested and controversial (Shawki, 2011). This indicates that the norm is still being shaped and is still in the initial stage of ‘norm emergence’ (Shawki, 2011). Labonte argues that R2P should be understood as a collection of norms rather than a single norm, and whilst pillar one relating to a state’s primary responsibilities to protect its population is established and has reached the final stage of norm internalisation, pillars two and three regarding the international community’s responsibility remain to be contested and are not yet at the tipping point (Labonte, 2016). The UNSC resolutions lend support to this argument, as most have only reminded states of their pillar one responsibilities and have rarely acknowledged the existence of pillar three (Hehir, 2017). This has lead Hehir to question whether R2P represents genuine progress, as pillar one is essentially a reaffirmation of pre-existing human rights norms and international law (Hehir, 2017). Reinhold further suggests that R2P cannot even be considered an ‘emerging norm’ because the majority of states do not recognise their pillar two and three responsibilities to protect foreign populations, which are crucial elements of R2P (Reinhold, 2010, p.55). However, Reinhold later contradicts this argument by suggesting that if she were to adopt Finnemore and Sikkink’s life cycle theory, she would locate R2P in the second stage of ‘norm cascade’ (Reinhold, 2010, p.74).

This divergence in academic opinion suggests R2P does not obviously fit into one stage of the norm life cycle theory. As Ercan suggests, this linear model ‘falls short as a tool in explaining the transformation that R2P has gone through’ (Ercan, 2014, p.37). Firstly, it suggests that contestation signifies that a norm is still in the initial stage of norm emergence, ignoring how norms continue to be contested and transformed through practice, whilst exerting effects on behaviour. Norms are ‘works-in-progress’ that will never be ‘finished products’ that are fully established and stable (Krook and True, 2010, p.104). As Krook and True suggest, ‘the ongoing potential for contestation means, in turn, that co-option, drift, accretion and reversal of a norm – including disputes over whether it is a norm at all – are all constant possibilities’ (Krook and True, 2010, p.104). R2P is especially vulnerable to contestation ‘because of its inherently indeterminate nature’ (Welsh, 2013, p.386). The R2P developed by the ICISS in the 2001 report is different from the R2P ‘lite’ endorsed by the UN, which has resulted in different expectations about when and how the norm should be applied (Shawki, 2011). Furthermore, the 2005 World Summit Outcome Document was deliberately vague, as ‘excess precision’ not only prevents the necessary consensus for the signing of international agreements, but also inhibits ‘possibilities for incremental adjustment necessary to sustain consensus’ (Wiener, 2004; Glanville, 2016, p.188).

Another fundamental flaw of the norm life cycle theory is highlighted in the criticism that ‘R2P represents a failure of the West to impose new global norms’ (McCormack, 2010, p.69). Norm life cycle theory assumes that norms diffuse in a unidirectional way from norm entrepreneurs to the international system, or from the West to the Rest. Acharya’s concept of norm circulation instead explains how norms undergo a ‘multiple-agency, two-way, multi-step process of norm diffusion, based on resistance, feedback and repatriation’ (Acharya, 2013, p.47). New international norms do not exist in a ‘vacuum’ but rather ‘inhabit a highly competitive landscape’ and must compete and fit with other norms, beliefs and practices (Florini, 1999, p.376; Labonte, 2016, p.135). Instead of passively accepting a norm, local actors engage in ‘norm localisation’ and ‘norm subsidiarity’ (Acharya, 2013, p.469). They adapt external norms and reconstitute them to fit better with pre-existing local beliefs and practices, whilst also altering local practices in accordance with the new norm (norm localisation). Local feedback is then ‘repatriated’ back into the international realm, which reshapes but also strengthens the international norm (norm subsidiarity). Norms are never established because they are constantly contested and transformed through their application in different locations and contexts. This contestation and feedback is a form of agency and can work to strengthen a norm’s legitimacy, as international norms are more likely to be accepted if a wider range of actors have contributed to their creation and diffusion (Acharya, 2013, p.466-469).

In summary, the idea that a norm such as R2P can become ‘established’ is based on Finnemore and Sikkink’s norm life cycle model that is insufficient in explaining the development of R2P. My understanding of norm development is instead informed by scholars such as Krook, True and Acharya, who understand norms as ‘works-in-progress’ that are continually contested and transformed through practice and by a range of actors (Krook and True, 2010; Acharya, 2013). Thus, norms such as R2P can never be stable, static or fully established. The following examples of Myanmar (2008), Libya (2011) and Syria (2011- present) demonstrate how R2P’s misapplication, controversial application, and non-application have all provoked valuable contestation and feedback that have reconstituted the norm and contributed to its normative evolution.

Misapplication in Myanmar 

Cyclone Nargis in May 2008 was the worst natural disaster to date in Myanmar and left 140,000 dead and up to 2 million seriously affected (Junk, 2016, p.80). The Myanmar government were neither willing nor able to manage the crisis and both refused visas to international staff and blocked the entrance of foreign aid (Junk, 2016). This sparked discussions over whether natural disasters or the deliberate obstruction of international relief justified an R2P response (Reinhold, 2010). French Foreign Minister Bernard Kouchner argued that the situation indicated the ‘manifest failure’ of the Myanmar government to protect its population (Junk, 2016, p.82). He advocated for the activation of R2P and a UNSC resolution that would force the government to accept international aid. Ramesh Thakur pointed out that ‘overwhelming natural or environmental catastrophes’ were included in the ICISS report as possible grounds for an R2P response in instances where a state was refusing aid or demonstrating an inability or unwillingness to manage the situation (Thakur 2008 cited in Junk, 2016, p.83). Furthermore, ICISS co-chair Gareth Evans suggested ‘there is at least a prima facie case to answer’ for the ‘intransigence’ of the Myanmar government ‘being a crime against humanity – of a kind which would attract the responsibility to protect principle’ (Evans, 2008).

However, Kouchner’s proposal was overwhelmingly met with opposition from states and R2P advocates. Edward Luck, then Special Advisor to the UN Secretary General on R2P, suggested that invoking R2P in Myanmar was a ‘misapplication’ of the norm, as the 2005 World Summit Outcome Document, which was what the international community agreed to, focused specifically on genocide, crimes against humanity, war crimes and ethnic cleansing (Hilpold, 2015). Luck stated ‘there is no agreement among Member States on applying [R2P] to other situations, no matter how disturbing and regrettable the circumstances’ (Luck 2008 cited in Hilpold, 2015, p.49). Western governments mostly supported increased international pressure, but did not support the activation of R2P, whilst Russia, China and South Africa vehemently opposed Kouchner’s proposal, regarding it as an unwelcome attempt to expand R2P beyond the limits agreed to in 2005 (Junk, 2016).

Disagreements surrounding the invocation of R2P in Myanmar demonstrated the significant lack of consensus about the scope and applicability of R2P, even after its endorsement and institutionalisation. Reinhold states that the Myanmar case has ‘thrown into sharp relief the international consensus on R2P’, further suggesting ‘in light of such dissent […] R2P cannot be considered a “new norm” or an “emerging norm” because there remain to be significant misunderstandings about what it actually is’ (Reinhold, 2010, p.57). However, this argument is based on the expectation that once norms have ‘emerged’ they are free from such contestation. Instead, contestation must be seen as ‘part and parcel of normative evolution’ and can, perhaps counterintuitively, advance the development of a norm (Welsh, 2013, p.395). Scholars such as Badescu and Weiss have argued that misapplications can advance norms by providing ‘conceptual clarification’ (Badescu and Weiss, 2010, p.355). They explain that ‘in objecting to abuses, other actors are obliged to specify principles and clarify situations […] and so, mistakes and abuses can play a role in furthering norms and even in reinforcing their salience when strong voices thoughtfully and persuasively contest misrepresentations’ (Badescu and Weiss, 2010, p.361). The misapplication of R2P in Myanmar forced the international community into clarifying when R2P can and should be applied. The Myanmar debate had the effect of returning R2P ‘to its roots’ by ‘re-centring’ the norm on its original objectives of preventing and responding to genocide, crimes against humanity, war crimes and ethnic cleansing (Junk, 2016, p.78).

Application in Libya 

On 17th March 2011, the UNSC adopted Resolution 1973 authorising ‘all necessary means […] to protect civilians and civilian populated areas under threat of attack’ in Libya in response to mass atrocities and threats of further atrocities by the Gaddafi regime (Loiselle, 2013, p.328). This was an unprecedented move and marked the first time in history that the UN had authorised an intervention without consent from the state. Ban Ki-moon commended the UNSC for its ‘historic decision’ stating it ‘affirms, clearly and unequivocally, the international community’s determination to fulfil its responsibility to protect civilians from violence perpetrated upon them by their own government’ and marked a ‘coming of age’ for the R2P norm (Ban, 2011 cited in Tocci, 2016, p.52). For Evans, the Libyan case was ‘at least at the outset, a textbook case of the R2P norm working exactly as it was supposed to’ (Evans, 2011, p.40). Despite the intervention garnering initial support, there have been huge divisions over R2P’s implementation in Libya. Though the resolution permitted ‘all necessary means’, many states, particularly the BRICS, did not interpret this to mean regime change and thought NATO had misappropriated R2P and acted beyond its mandate (Paris, 2014; Stepanova, 2016). The Libyan situation ultimately confirmed their longstanding suspicions that R2P could be used by Western powers to pursue their own strategic objectives. Furthermore, the fallout from Libya created a power vacuum, which has led to civil war, the rise of extremist groups and the destabilisation of North Africa (Kuperman, 2015).

The controversial application of R2P in Libya has led some scholars to suggest that future interventions are unlikely to get UNSC approval and thus R2P is a ‘norm in decline’ (Morris, 2013; Voordewind, 2017, p.1). However, as Welsh at the time suggested, if Libya can further discussions surrounding pillar three, ‘then it truly will have advanced the international community’s understanding and implementation of the responsibility to protect’ (Welsh, 2011, p.261). It certainly has contributed to such discussions and resulted in valuable feedback, most notably in the form of Brazil’s ‘Responsibility While Protecting’ (RWP) and China’s ‘Responsible Protection’ (RP). The theme of both proposals is that R2P in its present form is susceptible to abuse and offers an excuse for Western interventionism (Garwood-Gowers, 2016). Both ideas focus on pillar three and are inspired by aspects of the 2001 ICISS report that were omitted from the 2005 agreement, such as the ‘code of conduct’ for intervention, which emphasised criteria such as just cause, right intention, last resort, proportional means and reasonable chance of success, as well as the responsibility to rebuild after intervening (ICISS, 2001). RWP has four main recommendations for post-Libya applications of R2P. It emphasises the need to exhaust all non-military options first, to ensure that the use of force is legal and mandated by the UN, that intervention produces the least amount of violence and instability possible and is proportional, so that more lives are saved than cost (Paris, 2014, p.589). It also recommends that the UNSC develops enhanced measures to ‘monitor and assess the manner in which the resolution is interpreted and implemented’ (Paris, 2014, p.589).

Similarly, China’s ‘Responsible Protection’ was first proposed by Ruan Zongze, vice president of the China Institute for International Affairs in 2012 and was later expanded on at a conference in Beijing where representatives from other states were invited to discuss the concept (Stuenkel, 2015; Garwood-Gowers, 2016). RP’s six main principles draw heavily from RWP. It suggests that the aim of any intervention must be to protect innocent people and those intervening must remain impartial, that the UNSC is the only legitimate actor to initiate R2P type protection, that all diplomatic means must be exhausted before a military intervention, that the purposes of protection must be to mitigate human catastrophe rather than overthrow governments, that the protectors must be responsible for post intervention rebuilding and that the UN must establish ‘mechanisms of supervision, outcome evaluation and post factum accountability’ (Garwood-Gowers, 2016, p.103-109). As Garwood-Gowers states, ‘RP continues RWP’s push towards “fleshing out” the normative content of what is currently a largely indeterminate third pillar’ (Garwood-Gowers, 2016, p.93). RWP and RP demonstrate that Brazil and China recognise R2P as a norm worth engaging in and, perhaps even more importantly, they indicate that both states acknowledge that military intervention for humanitarian purposes is, under particular circumstances, justified (Kenkel and De Rosa, 2015; Garwood-Gowers, 2016). Furthermore, RWP and RP demonstrate that R2P has not simply diffused from the West to the Rest. These initiatives are valuable Brazilian and Chinese contributions to the normative conversation on R2P and the engagement of these powers will ultimately enhance the norm’s legitimacy.

Non-application in Syria 

Several scholars have argued that the inability of the international community to effectively respond to mass atrocities in Syria represents the ‘death’ of R2P (Newton, 2013; Reiff, 2011). Over 500,000 Syrians are estimated to have died during the conflict that began with the government crackdown on civil unrest in 2011 (Graham-Harrison, 2017). In addition to those who have died, there are now approximately 5.6 million refugees, 6.1 million IDPs and 13 million people inside Syria requiring humanitarian assistance (UN News, 2018). The UN has been in deadlock due to members of the P5, Russia and China, repeatedly using their veto on UNSC proposals. The UNSC has seen numerous resolutions fail in Syria and those that have passed have been limited to humanitarian aid and investigations into chemical weapon use, and have not been effective neither in ending the civil war nor ensuring the protection of civilians. Clearly, both the Syrian government and the international community have fallen short of their responsibilities to protect the Syrian people from mass atrocities (Hehir, 2017, p.340).

Welsh argues that ‘inconsistency is built into the very fabric of R2P’ because it recommends that the international community act on a ‘case-by-case basis’ (Welsh, 2013, p.388). Thus, R2P can be best understood as a ‘responsibility to consider’ (Welsh, 2013, p.367). R2P does not condone military intervention in all cases and the 2001 ICISS report’s ‘code of conduct’ insists that any intervention must be minimal in terms of its scale, duration and intensity, must solve more problems than it creates and must have a reasonable chance of success (ICISS, 2001). Seeing as military intervention is unlikely to be effective or simple in as complex and multifaceted crisis as Syria, the lack of military intervention does not represent a violation of the norm (Glanville, 2016). However, military intervention is not the only way states can fulfil their responsibilities. Ralph and Souter suggest that with regards to Syria, the responsibility to protect is being fulfilled by states such as Turkey, Lebanon, Jordan, Egypt and Iraq, that have taken almost 4 million refugees between them, arguing ‘R2P is not entirely failing’ in Syria ‘but the world is relying on five states to uphold it’ (Ralph and Souter, 2015, p.69). Out of the stronger states with a greater capacity to help, only Germany has been meeting its responsibilities. It is obvious that the wider international community has failed to do everything in its power, short of military intervention, to protect the Syrian population and so, in this instance, has violated R2P.

Though the Syrian case undermines Bellamy’s assertion that R2P is an established norm ‘utilised almost habitually’, it does not represent the ‘death’ of R2P (Bellamy, 2015, p.161; Panke and Petersohn, 2011; Ercan, 2014). As Gallagher states, ‘undoubtedly shaped by the norm life cycle theory, a rather crude birth/ death narrative has surrounded R2P since its inception’ (Gallagher, 2015, p.255). The expectation that transgressions represent the ‘death’ of a norm ignores how failures can further the normative conversation in important ways. For example, the UNSC’s impotency during the Syrian crisis has resulted in two significant proposals for UN reform. Firstly, the proposal by the ‘small 5’ (Costa Rica, Jordan, Liechtenstein, Singapore and Switzerland) to bring back the ‘responsibility not to veto’ (RN2V) in mass atrocity situations, which was originally part of the 2001 ICISS report (Blätter and Williams, 2011). They introduced a resolution to the General Assembly in May 2012, which recommended that the P5 should provide an explanation for their use of the veto and refrain from using it to block UNSC action aimed at halting or averting genocide, war crimes, crimes against humanity and ethnic cleansing (Citizens for Global Solutions, 2014). Though their motion was subsequently withdrawn following pressure from the P5, it remains an important initiative and is now being spearheaded by a group of 21 members states called the ACT (the Accountability, Coherence and Transparency group) that focuses on UNSC reform (Citizens for Global Solutions, 2014, p.9).

Similarly, debates have reignited over General Assembly Resolution 377 A (V) or the ‘Uniting for Peace’ resolution (Carswell, 2013). The resolution, originally passed in 1950, states that in the event of a paralysed UNSC due to a vetoing P5 member, Emergency Special Sessions can be called by either 7 members of the UNSC or by a majority of UN General Assembly (UNGA) members. These sessions can be requested if members consider the UNSC to be failing in its primary responsibility for the maintenance of international peace and security, and  has been used 10 times since its adoption to convene emergency sessions at UNGA (Cabrol, 2017; Carswell, 2013). In 2016, 223 civil society organisations and NGOs from 45 different states called for an Emergency Special Session at UNGA in response to Russian and Chinese vetoes on Syria (Cabrol, 2017). This was ‘the first time in history that such a considerable alliance of organisations, governments, and UN officials had called for change in the UN system’ (Cabrol, 2017). Though UNGA did not respond to their request on this occasion, the Uniting for Peace resolution still holds ‘significant potential’ as a ‘safety valve’ that is capable of shifting the responsibility for the protection of threatened populations from a paralysed UNSC to UNGA (Carswell, 2013, p.456). These initiatives reflect the international community’s desire to be able to fulfil its responsibilities without needing the consent of the P5. Rather than marking the ‘death’ of the norm, R2P’s failure in Syria has furthered the normative conversation by reigniting debates about the RN2V and the Uniting for Peace Resolution which, if successful, could significantly reshape R2P.

Conclusion 

To conclude, significant contestation and the inconsistent application of R2P, highlighted by the examples of Myanmar, Libya and Syria, make it difficult to argue that it is an ‘established’ norm in international relations, as this implies that it is stable and permanent. However, as I have suggested throughout this essay, the idea that a norm can become established in this way is based on a false expectation of linear normative development, influenced by Finnemore and Sikkink’s norm life cycle theory (Finnemore and Sikkink, 1998). I have argued, with reference to Acharya’s concept of norm circulation, that instead of progressing through the three stages of norm emergence, norm cascade and norm internalisation, norms undergo a ‘multiple-agency, two-way, multi-step process of norm diffusion, based on resistance, feedback and repatriation’ (Acharya, 2013, p.471). This is clearly demonstrated in the examples of R2P’s misapplication, controversial application and non-application in Myanmar, Libya and Syria. Instead of progressing in a unidirectional way towards universal establishment, from the West to the Rest, R2P has been constantly challenged and transformed through practice and by a range of actors. These examples highlight how contestation has led to valuable feedback, which has furthered the normative conversation about R2P. The engagement of a wide range of global actors in challenging and transforming R2P is ultimately beneficial for the legitimacy and evolution of the norm. Though the future of R2P is unclear, one thing is for certain: the remainder of its normative journey ‘will not be teleological’ (Labonte, 2016, p.146).

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A Critical Analysis of the Strengths and Limitations of the Responsibility to Protect in the Central African Republic Between 2013-2017

Claudia Broadhead, University of Leeds

Claudia Broadhead graduated from Leeds University in 2018 with a First-Class Honours in English and History of Art. She currently works in Refugee Support at the British Red Cross.

Abstract

This paper will discuss the material implications of the UN Responsibility to Protect in the Central African Republic (CAR), a country which since March 2013 has seen ongoing internal conflict. The paper concentrates on the international community’s response to mass atrocities in CAR from 2013 until 2017. The evocation of R2P as a response to the situation on the ground in CAR has resulted in consensual intervention by the EU and UN. This essay will focus on three dimensions of the R2P norm: its shift from a Westphalian to a liberal interpretation of sovereignty, its nature as a tool that is ultimately driven by international political will, and the role of R2P to facilitate support between the international community and the state’s governing body. The paper will use these three facets to evaluate the success of R2P in CAR and concludes that the limitations of the UN norm outweigh its strengths as a tool to prevent and protect mass atrocity crimes.

The Central African Republic (CAR) has seen an eruption in renewed violence and ongoing atrocities since March 2013, with its situation further deteriorating from late 2016. In brief, the crisis emerged with the predominantly Muslim rebel group Séléka fighting to overthrow the corrupt Bozizé government, which resulted in the formation and subsequent retaliation by the mostly Christian anti-balaka militias. Both rebel groups, as well as armed forces and civilian mobs have committed mass atrocity crimes (UNSC Resolution 2134, 2014, p.1). The instrumentalisation of religion and ethnicity have been central to the human rights violations, however, it is imperative to emphasize that the crisis is far more complex, and fundamentally propelled by political groundings (Global Centre for the Responsibility to Protect, 2014). The international community has repeatedly responded to the violence in CAR: France has intervened multiple times since CAR’s independence in 1960, and in April 2014 the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) was established as the third UN mission in 20 years (Cinq-Mars, 2015, p. 7). In 2005, the Responsibility to Protect (R2P) was endorsed into the World Summit Outcome Document as a global norm, following its introduction as a principle in the 2001 International Commission on Intervention and State Sovereignty (ICISS) report (ICISS). At the heart of R2P, there are three pillars of responsibility: pillar one stipulates that foremost it is the duty of the state to protect its population from genocide, war crimes, crimes against humanity and ethnic cleansing; pillar two indicates that if a state fails, it is the responsibility of the international community to assist; and pillar three specifies that if peaceful means are inadequate and the state is manifestly failing to protecting its population, the international community must take action in a ‘timely and decisive manner’ in accordance with the UN Charter (United Nations General Assembly, 2005, p. 30).  The UN Security Council (UNSC) has invoked R2P 18 times concerning CAR since R2P’s adoption in 2005 through UN Resolutions that emphasise the commitment of the international community to resolving the country’s conflict.

This essay will argue that despite ongoing international efforts to protect populations from widespread human rights violations in CAR, the limitations of R2P outweigh its strengths. The argument will develop by looking firstly at how R2P’s reconfiguration of sovereignty gives states the opportunity to discuss and act, but how this universal shift of sovereignty has failed to be effective in CAR. Secondly, once this opportunity to help has been created, R2P is flawed in its dependence on political will; the lack of vested interest in CAR has led to slow missions that fail to address the systematic and root issues of the human rights abuses. Thirdly, once states do commit to investing in the protection of a threatened population, R2P instructs the international community to assist, in the case of CAR, a corrupt and problematic government, and gives unprecedented power to peacekeepers that is poorly monitored and has led to bad practice on the ground.

The impact of R2P’s reconfiguration of sovereignty in CAR

First proposed in the 2001 ICISS report, utmost sovereignty under the first pillar of R2P was redefined as a conditional right reconfiguring Westphalian sovereignty which dictates the absolute right of state leaders to control their own territory, condemning outside interference on all levels (Cohen and Deng, 2016, p. 88). This shift of the notion of sovereignty to a more liberal orientation can be regarded as a key strength of the norm in reference to CAR because it allows states to discuss and act in situations of widespread human rights violations. Although the report emphasised the value of sovereignty, it stipulated that states had a responsibility to protect their populations and under specific circumstances of state failings to do so, the principle of non-intervention could be overruled (Glanville, 2016, p. 160). In CAR, ‘the successive ruling elites and their entourage never demonstrated any sense of responsibility or accountability towards the populations they were meant to administer’ (UNSC, 2015, p. 27). Widespread human rights violations had been occurring in CAR for a prolonged time, and the failure of the state to lead and take responsibility for its population is a well-recognised cause of the conflict (UNSC, 2015, p. 28). The reconceptualization of sovereignty has led to the international community playing a role in efforts to alleviate the heinous conflict. R2P is therefore a progressive concept in that it encourages states to discuss human rights atrocities across the world, reshaping international relations to prioritise populations threatened by mass atrocity crimes. Jennifer Welsh (2013, p. 368) argues that R2P has been a success because it has altered state behaviour to ‘consider a real or imminent crisis’. Although norm cascade theory set out by Finnermore and Sikkink (1998) is problematic in its assertions, it is useful as a starting point because Welsh (2013, p. 379) contends that R2P has passed its emergence, and is now in the phase of ‘cascade’ and ‘diffusion’ whereby sates are beginning to ‘consistently act on the norm’s precepts’. With reference to CAR, this is evidenced by the 18 UN Resolutions that have been invoked since 2005 in response to the crisis. The recalling of resolutions to support the population of CAR demonstrates how the international community is beginning to consult the norm as a method of international responsibility concerning the four crimes. States are therefore beginning to adopt R2P as worldwide diplomatic language which ensures mass atrocity crimes are considered and discussed, leading to supportive and consented state intervention in extreme situations of widespread human rights violations, as seen in CAR.

In contestation, the liberal shift of sovereignty from its traditional sense under R2P threatens the unconditional right of states, surfacing the threat of interference by international actors. The African Union (AU) is formed of states committed to traditional sovereignty meaning the language of R2P has not been widely adopted by the regional organisation; R2P as a universal principle is therefore flawed in its failure to accommodate for the unique states in Africa (Aning and Atuobi, 2011, p. 16). The AU is an essential component of effective multilateral support. However, due to R2P’s insistence on conditional state sovereignty, the AU has failed to appropriately encourage and assist CAR when mass atrocity crimes have occurred, as articulated by pillar II. Regional organisations are a fundamental aspect of translating R2P practically onto the ground, particularly due to the organisation having an understanding of the dynamics and relations in the area they act within (Aning and Okyere, 2016, p. 355). Article 4(g) of the AU Constitutive Act is a non-interference clause, ‘virtually turning R2P on its head by approaching protection from the vantage point of state regimes rather than the potential victims’ (Aning and Okyere, 2016, p. 363). Therefore, R2P’s reconfiguration of sovereignty is limited in the context of CAR in that the non-conformist states have impacted the role of the AU as an assisting organisation in response to the occurrence of the four crimes in CAR. Despite the AU’s authorisation of the deployment of troops to the African-led International Support Mission to CAR (MISCA) in July 2013, the operation failed to provide sufficient support to protect CAR’s populations from mass atrocity crimes that have continued to exist (Cinq-Mars, 2015, p. 13). A 2014 statement by the UN Secretary-General (Ki-Moon, 2014a) asserted that the 3,500 assigned AU troops were not sufficient to implement MISCA’s mandate. We can identify this as a lack of commitment by the AU to intervene in CAR, compromising the strength of R2P as a globalised norm. The UNSG (Ki-Moon, 2011a, p. 3) notes that R2P should ‘respect institutional and cultural difference from region to region’, while advocates of the global norm emphasise the pragmatic step at the heart of R2P in that it is invoked on a ‘case-by-case’ approach. Critiquing this however, we can use Adejo’s (2001, p. 136) analysis to note that due to old norms of absolute sovereignty, non-interference continues to exist within the institutional framework which has allowed state failings to obstruct AU intervention. Despite the deployment of AU troops to MISCA, their effectiveness was poor due to the insufficient size of the group which suggests the AU’s unwillingness to engage fully with R2P, and thus the mission has had very limited success in protecting threatened populations in CAR.

The failure of R2P to protect a country which has little international interest 

Despite Welsh’s (2013) nuanced approach that celebrates R2P as a norm that has become integrated into international diplomatic language, close analysis of the impact R2P has had in response to the emergence of the four crimes in CAR reveals several limitations of the norm. Effective international assistance through prevention strategies under pillar II are ultimately dependent on the political will of states, particularly the state interests of the Security Council’s permanent five members (P5) (Hehir, 2015, p. 85). This critique of the global norm can be applied to CAR which has been described as a ‘phantom state’ (International Crisis Group, 2007). Cinq-Mars argues that the lack of exploitable resources in the country and the absence of ‘any meaningful institutional capacity’ has led to CAR being disregarded as a priority by the international community (2015, p. 6). Furthermore, due to the structure of the UNSC and the overriding power of the P5 in international decisions, in practice R2P is a concept whose power is vested in the Security Council (Davies and Bellamy, 2014). Aidan Hehir (2017, p. 335) challenges Welsh’s (2013) support of R2P as an integrated norm, instead asserting that the norm’s ‘impact on the behaviour of states has been limited’. R2P has not shifted state mind-sets because international response is fuelled by state interests whereby manipulation of the norm occurs for selfish means (Kowert and Legro, 1996, p. 493). States are given the ability to intervene; but this can lead to intervention for vested interests, or increased violence on the ground and bad practice of the interveners. The Geneva Peacekeeping Platform, an international centre that links experts with peacebuilding actors and facilitates discussion to drive greater knowledge and understanding of peacekeeping issues, reinforces this in relation to CAR, explaining that one factor of the failed peacebuilding efforts is the ‘overly negative and inherently flawed’ perception of the country (Akasaki et. al, 2015). Cinq-Mars (2015, p. 7) concludes that this view of CAR led to ‘reactive and belated’ responses. ‘Reactive’ demonstrates that with no political desire or ulterior motive, the international community prioritised short-term alleviation over the cost of tackling the root causes of the conflict. ‘Belated’ aligns with Hehir’s argument that R2P is a utopian norm because when states are unwilling to respond in a ‘timely’ manner R2P prevents the successful stabilisation of a failing state (Hehir, 2017, p. 340-41). Cinq-Mars (2015, p. 12) interviewed current and former UN staff who described CAR as a ‘punishment posting’ and ‘parking lot of the UN’, suggesting staff are abandoned there while the UN focuses on more important work. Turnover rates of UN staff in CAR are exceedingly high. The absence of exploitable resources and lack of a strong relationship between CAR and any members of the P5 has ultimately shaped the R2P response which has been inadequate in protecting civilians from mass human rights violations (Hehir, 2015, p. 93). CAR being regarded as a forgotten lost cause allows us to conclude with Hehir’s argument that the efficacy of R2P is ‘heavily dependent on political will, as opposed to legal procedure and judicial oversights’ (Hehir, 2015, p. 93).

The failure of the EU and UN to implement prevention and respond to credible early warnings

The lack of political will of states to fully invest in CAR can be identified by the reported failure of the UN and EU to respond to credible early warning systems and implement effective prevention strategies in CAR, and thus R2P has failed to efficiently protect the country’s population (Bellamy and Lupel, 2015, p. 2).  Although atrocity crimes are determined by a multitude of variable factors and conditions making them demanding and strenuous to prevent, prevention strategies including building national resilience, promoting human rights, and adopting targeted preventative measures have been outlined in the UNSG’s 2013 report on prevention and thus enshrined in pillar I and II of R2P (Ki-Moon, 2013). As Simon Adams (2013, p. 1), the Director of the Global Centre for R2P declares, ‘R2P is primarily a preventive doctrine’. Although Hehir (2012, p. 87) argues that the shift of emphasis from intervention in the ICISS report (2001) to prevention in the World Summit Outcome Document (2005) indicates R2P’s failure to impact law, procedure and regulating institutions, it is widely accepted that implementing preventive strategies has resulted in successful aversion from the four crimes (McLoughlin, 2014, p. 414). The UNSG’s 2013 report on prevention noted that early warning mechanisms to alert decision makers to situations that were on the brink of escalation were a vital aspect of atrocity prevention measures (Ki-Moon, 2013, p. 14). With regard to CAR, it was already in April 2013 when public calls were made by XXX for Muslim civilians to be wiped out (Cinq-Mars, 2015, p. 16) and in August 2017 the Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator made a statement that concluded the early warning signs of genocide were visible and action must be taken immediately (O’Brian, 2017). The UN and EU have been heavily criticised for their slow and insufficient response to the rise of widespread human rights violations in CAR (Bellamy and Lupel, 2015, p. 2). The lack of political will to whole heartedly respond to the crisis is a reason for the insufficiency of the international community. Following the December 2013 attacks and warnings of ethnic cleansing, crimes against humanity and war crimes, EU ministers agreed in January 2014 to deploy an EU military operation (EUFOR RCA) in CAR (Council of the European Union, 2014). To ensure its rapid operation, EUFOR RCA was approved in UN Resolution 2134 (UNSC Resolution 2134, 2014, p.3). However, three months later, in March 2014, the already delayed EUFOR RCA mission still required another 500 troops for its deployment (Global Centre for the Responsibility to Protect, 2013). On the 9th April, a further three weeks later, troops from EUFOR RCA arrived in Bangui and an initial group of 55 begin patrolling (Global Centre for the Responsibility to Protect, 2013). Despite the grave warnings of widespread human rights violations from organisations on the ground in CAR, R2P’s lack of legal binding and dependence on political will has meant the UN and EU have been ineffective at translating agreements into practical action. The delay of deployment in the context of the crisis was shockingly high as without an ulterior motive troops were unlikely to be deployed to CAR. The EUFOR RCA mission was initially restricted to a mere six months, and it was centred in the capital of the country with no troops operating in other critically turbulent areas, therefore R2P’s dependence on political will has allowed conflict to intensify and lives to be lost.

The failure of R2P to address the structural underlying causes of instability in CAR

R2P has allowed the international community to provide short-term direct assistance and stabilisation but has failed to address the structural underlying causes of the occurrence of the four crimes. Again, the lack of political will of states to fully invest in CAR that has led to this. This can be illustrated through events in December 2013 where the UN pulled into action following an outbreak of violence, and although further mass killings were initially supressed, the intervention had short-lived preventative benefits but actually intensified inter-communal violence in the long-term (Cinq-Mars, 2015, p. 15). Early December 2013 saw widespread human rights abuses occur as anti-Balaka militias attacked former Séléka forces in Bangui, killing an estimated 1,000 people in an ethno-religious cleansing mission (Global Centre for the Responsibility to Protect, 2013). This was instantaneously followed by the UNSC adoption of Resolution 2127 authorising MISCA and the emergency deployment of French troops to take ‘all necessary measures’ to contribute to the ‘protection of civilians and the restoration of security and public order’ (UNSC Resolution 2127, 2013, p. 7). Unintentionally, international focus to disarm former Séléka rebels placed anti-balaka fighters in a position of superiority resulting in the forced displacement of Muslim civilians by anti-balaka in Bangui and western CAR (Øen, 2014, p. 32). The UN was heavily criticised for its insufficient role in the crisis, once source being the international humanitarian organisation Médecins Sans Frontières who released an open letter to the UN humanitarian system expressing its ‘deep concern about the unacceptable performance’ of UN agencies in CAR (Global Centre for the Responsibility to Protect, 2013). The peace missions deployed to CAR were criticised by Cinq-Mars (2015) for lacking the capacity to interrupt violence due to ill-equipped, under-trained and insufficiently supported operations. The structure of R2P as a non-legally binding concept that relies on state responsibility and voluntary assistance has meant that efforts in CAR have been fundamentally reactive, but not thorough investments to address the underlying causes of the conflict. Unfortunately, the international community has intervened in CAR under R2P in a very surface fashion which has lacked capacity, exacerbating violence in some regions and failing to structurally prevent widespread human rights violations due to the absence of addressing the root issues of the conflict.

The role Pillar II has had in supporting CAR’s corrupt government and giving unprecedented power to UN peacekeepers

Transcending beyond political will, even if states do commit to preventing and protecting the population from mass atrocity crimes, pillar II instructs the international community to support CAR’s government, who have been fundamental in fuelling the crisis and have taken part in widespread human rights violations themselves. Pillar II stipulates ‘the international community should as appropriate, encourage and help states to exercise their responsibility and support the United Nations in establishing an early warning system’ (United Nations General Assembly, 2005, p. 30). Its aim is to ensure international assistance helps a failing state to build the resilience to protect its population from the four crimes. In the 2009 UNSG report ‘Implementing the Responsibility to Protect’, Ban Ki-Moon claimed that pillar II is an ‘active partnership between the international community and the State’ and broke down the pillar into three categories: encouragement, capacity building, and assisting States (Ki-Moon, 2009, p. 15). Regarding the third dimension, Gallagher highlights how if those in power are the reason for the lack of ‘accountable political institutions, respect for the rule of law and equal access to justice, and mechanisms for the fair and transparent management of economic resources and assets’, then international assistance may legitimise those responsible for the crisis (Gallagher, 2009, p. 1274). Gallagher’s critique can be applied to the CAR case because it is the state who has played a leading role in fuelling conflict and committing human rights violations, and therefore it is controversial and highly problematic that the international community work side by side with CAR’s government. CAR has failed to be effectively governed by legitimate state authority since its independence in 1960. Bozizé, who ruled from 2003 to 2013, controlled a horrifically corrupt government, holding all the power and marginalising the northern and eastern regions of the country (Cinq-Mars, 2015, p. 6). Ostracising communities outside Bangui led to the rise of anti-government rebel fighters who are legitimately furious (Cinq-Mars, 2015, p. 6). Furthermore, Louisa Lombard (2014) notes that Bozizé engaged in the politicisation of religion which intensified tensions between religious groups, providing further ground for conflict. However, through the October 2013 UNSC Resolution 2088 and MINUSCA’s attempt to establish a legal framework, we can identify two distinct ways that the UN has assisted and ultimately legitimised a government that has manipulated relations and established hierarchy. Firstly, Resolution 2088 both ‘Urges the Government of the Central African Republic to ensure that freedom of expression and assembly, including for the opposition parties, as well as the rule of law are fully respected’, and ‘Demands that all armed groups cooperate with the Government in the disarmament, demobilization and reintegration process’ (UNSC Resolution 2088, 2013, p.3). The UN is encouraging CAR’s government to oversee commitment to human rights and law by all groups, and instructing armed groups to actively work with the government, legitimising it as an actor which holds power and control. Secondly, with the support of MINUSCA there has been efforts to re-establish the court system, yet the UNSG emphasises the rebel group individuals convicted, suggesting elite figures in the corrupt CAR state have continued unscathed (Ki-Moon, 2018, p. 7). Rebel armed groups were responsible for 33% of all human rights abuses, yet the national police and State led military are responsible for 25% of violations (Ki-Moon, 2018, p. 9). Furthermore, in April 2014, Russia and China blocked a proposal by the United States and France at the UNSC to impose targeted sanctions against three individuals, including former President Bozizé (Charbonneau and Nichols, 2014). International assistance in the way of establishing courts and prison systems, although fundamental in establishing a democratic and well-governed State, legitimises the mass human rights violations of the State by majoritively condemning the rebel groups. We can therefore critique R2P as a norm that encourages the international community to aid state’s that are key players in the cause of conflict.

Once states commit to supportive military intervention in the form of peacekeeping, which aims to protect populations at risk, R2P provides unprecedented power to peacekeepers and does not enshrine rigid training and monitoring, which has led to power being misused and abused, and ultimately R2P has created opportunities for bad practice on the ground in CAR.  Prevention by definition ‘involves a bi-lateral dynamic’ (Hehir 2015, p. 91), but accusations of sexual abuse by peacekeepers has hugely weakened the reputation of the military operations (Arieff, 2014).  Hehir’s work on prevention informs us that in the case of CAR the groups planning the attack must be dissuaded by the international community in order for prevention to be successful (2015, p. 91). However, there have been repeated accusations of sexual abuse, many cases involving children, by troops associated with French, AU and UN intervention which has ruptured any sense of trust or working relationships between the armed groups and the peacekeepers. An October 2017 Amnesty International news article reported that UN peacekeepers in Bambari drugged and sexually assaulted a young woman in CAR (Amnesty International News, 2017). The atrocious actions of the UN peacekeeper in this specific case were taken to court and the victim was restored with some form of justice (Amnesty International News, 2017). However, Amnesty (2017) reports that no other allegations of rape involving UN troops, despite the ‘continuous stream of well-documented’ claims, have been criminally investigated. The lack of a strategic framework and rigid monitoring following international assistance and intervention on the ground has allowed peacekeepers to heinously misuse their powerː despite training modules and mobile training teams being used to ensure peacekeepers understand their role in protecting civilians, this is evidently not enough (Ki-Moon, 2014b, p. 17). The UNSG’s 2014 report emphasises ways to identify at risk groups and increase protection capacity for vulnerable women, although this progress is vital, it fails to acknowledge the continuous allegations against peacekeepers themselves and how this can be combatted in the future (Ki-Moon, 2014b, p. 17). The misuse of power by certain troops has been a contributing factor to the failure of the international community to protect CAR’s populations from the four crimes. R2P is thus limited in that it does not ensure rigid training and monitoring of practice on the ground, allowing assault to occur which has jeopardised the success of prevention and restoration missions in CAR.

Conclusion

R2P is advocated for by scholars as a progressive norm that has encouraged conversation about human rights atrocities and has reshaped thought to further prioritise the lives of mass atrocity victims in international relations. However, this article has argued that in the context of the ongoing crisis in CAR, the limitations of R2P outweigh its strengths. There are two key strands of critique that this essay has negotiated, one in reference to the wording of the norm, and another in relation to how R2P is put into practice and interpreted. On one hand, the R2P discourse reconceptualises sovereignty in pillar I and instructs the international community to assist the manifestly failing state in pillar II. These stipulations have meant the African Union has had minimal input in restoring CAR due to its framework tied to legalities of traditional sovereignty. Furthermore, the rest of the international community has been involved in supporting and actively assisting the corrupt CAR government which is criticised for being the catalyst of the entire crisis. On the other hand, the non-legally binding norm has been able to be exploited in its invocation by states and their troops. R2P is dependent on the political will of states to offer their resources and services to protect populations threatened by the four crimes, it is therefore able to be abused in situations of state interest or allied relations which has led to the crisis in CAR being insufficiently responded to by the international community. On a more granular level, the authority that the peacekeepers have has been horrifically misused due to the absence of rigid training and monitoring efforts, which has weakened the opportunity for peacebuilding relations between international troops and local armed groups. Ultimately, R2P creates opportunities for states to help populations threatened by genocide, war crimes, crimes against humanity and ethnic cleansing. Nevertheless, its nature as non-legally binding allows states to act most effectively and efficiently in cases of vested interest, while once states do commit to assist, R2P threatens to further violence and legitimise bad practice.

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How Gendered Experiences Shape Processes and Practices of War and Peace

Jennifer Amy Leigh, The University of Law, UK

Jennifer is currently a full-time Civil Servant and part-time Graduate Diploma in Law student at The University of Law. Previously, she graduated from The University of Manchester with a MA in Politics and from the University of Liverpool with a BA Honours in English Language and Literature. Jennifer has studied abroad at Xi’an Jiaotong-Liverpool University in Suzhou, China, and IILM in Delhi, India. 

Abstract

This article considers the gendered nature of conflict. It argues that war is not a patriarchal preserve and that gendered experience extends conflict beyond its usual boundaries. Women are shown to be affected by war, as the term is broadly understood, in a variety of ways, although the full extent of female experiences has not yet been assimilated into conflict discourse. It shows that the usual demarcations between war and peace do not reflect gendered experience, and the examples of the Congo and Korea are used to illustrate this point. The value of social constructivism in providing a theoretical framework for gendered experience is war is also considered, with reference to female experiences in World War One. The example of South Africa’s Truth and Reconciliation Commission is examined in even greater detail, particularly in respect to women’s experience of violence, sexual or otherwise, and their unwillingness to discuss it. Attention is given to the role of peace, which is defined not as the absence of war, but as the absence of insecurity and other forms of violence not usually associated with traditional conflict. The role of gendered experience in shaping peace processes is also considered, especially women’s participation is peace-building and the secure establishment of peace after conflict. It is suggested that many more connections need to be made if gendered experiences in the narratives of war are to be fully appreciated. The importance of avoiding stereotypes is made apparent.

Recent developments in the nature of warfare have had profound consequences for gendered experiences both during and after conflict. While war has traditionally been defined as either an international military struggle or a civil conflict between opposing forces within a state, it is now increasingly understood as ‘a sustained campaign against something undesirable’ (Concise English Dictionary, 2011: 1628). Indeed, today’s wars are referred to as ‘wars’ against drugs, guns, and terror (Kerrigan, 2017; Winkler, 2011; Rogers, 2004), partly, but not exclusively, fought within civil societies, including women and children holding only a limited knowledge of the war in their streets. This essay will show how war and peace can be viewed through the prism of gendered experience and, more importantly, that a full appreciation of the gendered nature of conflict is vital if the processes of modern warfare and peace-making are to be fully understood. This essay will use theories which stress the role of male elite power interests, as well as those which argue that the end of conflict is merely the prelude to the reassertion of patriarchal, social relations and ‘gendered dynamics’ (Borer, 2009: 1172). It will show how gendered experiences extend war beyond its hitherto geographical and temporal frameworks and bring value to the idea that peace should be ‘built’ rather than simply ‘declared’.

It is vital from the outset to understand the different ways in which women are affected by war and post-conflict situations. The United Nations Security Council Resolution 1325 recognises that, at the most basic level, men and women experience conflict differently. The Resolution encourages international actors to increase women’s participation in peace and security processes and incorporate gender perspectives into post-conflict initiatives. An example of these principles being successfully applied is the Women, Peace and Security (WPS) agenda. Yet whilst Fionnuala Ní Aoláin (2016: 275) rightly identifies WPS as “the dominant discourse framing women’s advocacy and action in international affairs”, she also explains that until recently, the types of conflict likely to fall within the WPS agenda’s remit have been narrowly defined as those which lie within the denotation of traditional armed conflict. Presumably, the long-running siege of Mosul (2016-2017) would be included, whereas the 2012 racist murder of Shaima Alawadi, an Iraqi woman, in California would not (Sjoberg, 2013; Katrandjian, 2012). Presumably, the 2017 attacks in Borough Market in London would also be excluded. The exclusion of these events, which do not fall within traditional definitions of armed conflict, is significant since it increases the risk of gender essentialism by which the gender is understood according to physical characteristics. This limitation in the WPS agenda’s remit is particularly significant as the terms for inclusion have been defined by male-dominated security institutions. For example, while the first session of the United Nations Counter-Terrorism Committee (CTC) briefed states on the role of women in combating terrorism and extremism, the CTC has not to this date negotiated with the WPS, leaving the latter playing a peripheral role in the terrorism discourse. Ní Aoláin concludes:

“the superficial inclusion of references to women in the context of addressing terrorism and advancing counterterrorism strategies should not be read as a form of meaningful intersection between the WPS agenda and by now well-established post 9/11 international security regimes […] The parallel reality is that, despite over a decade of intrusion into the peace and security arena, women find themselves (yet again) at the wrong party” (2016: 289).

One conclusion which might be taken from this is that despite the WPS agenda’s attempt to include gendered experiences in conflict and post-conflict narratives, the full range of women’s experiences have not yet been fully accepted into the discourse of conflict prevention and resolution.

Defining War, Defining Peace

It can be argued that the traditional demarcations between war and peace do not allow for the full expression of gendered experiences. To see war as the incidence of violence between two or more states and peace as the absence of such an incidence generally obscures women’s experiences in war. This is the argument of Chris Cuomo (1996: 42), who sees war as “white noise in the background of social existence”. Thus, while certain women in the Congo perceive the motivations of soldiers to commit rape as intimately connected with the conflict, and regarded as the ‘spoils’ of war, other women experience war in less traditional contexts (Card, 1996). For example, Catherine Moon detects war in the behaviour of women prostitutes in the development of the Korean De-Militarized Zone (1997). Indeed, viewed from a broader perspective, events such as the death of Alawadi lay outside the conventional divisions between war and peace. Several feminist scholars (Elshtain, 1987) have argued that to distinguish between war and peace is similar to distinguishing between the public and private roles in civil society. Once such a distinction is removed, the ways in which gendered experiences shape the processes and practices of war and peace become clearer.

As such, it is important to identify a theoretical framework by which these gendered experiences can be more clearly understood. The theory of social constructivism, according to which the thread of gender identity is “woven, moved, stretched” as women and men take their places in the social world (Messner, 1990), has attracted some attention in regard to this issue. Michael Messner explains that “gender identity, rather than being viewed as a ‘thing’ which people ‘have,’ is thus conceptualized as a process of construction which develops, comes into crisis, and changes as a person interacts with the social world” (Messner, 1990: 419).

An understanding of social constructivism allows us to gain a new perspective on gendered experiences. For example, during the First World War, particularly following the introduction of conscription in 1916, women’s gender identity significantly developed; the effects of this development extended far beyond the Armistice of 1918 and the peace treaties that followed. Conventional historical analysis has highlighted the way in which the involvement of women in WWI aided the campaign for female suffrage. Yet social histories of the 1920s shows how pre-war patriarchal societies sought to restore women to their traditional roles, while several women rejected any easy categorisation and certainly any restoration of pre-war complacencies (Vera Brittain and Virginia Woolf are two contrasting examples) (McKibbin, 1998). In this context, peace can indeed be interpreted as a process, one which has an impact far beyond the conventional stereotype. Hanley’s (1991) thesis shows how the widespread perception of the solider on the front line as the main victim of war frequently prevents us from acknowledging other victims and the effect of war on gendered experience. This also:

“discourages questions about war as a continuous condition […] eerily reminiscent of the motel room Patrick Purdy left behind when he set out for the Stockton, California schoolyard where he would spray the playing children with bullets from his assault rifle, killing five and ultimately himself. His room at the motel was empty but for a company of toy soldiers […]” (Hanley, 1991: 31-32).

The fact that Hanley’s analysis stretches from the First World War to the Cleveland Elementary School shooting in 1989 reveals the long history of tensions in gendered behaviour in the context of war and peace. However, detailed analysis of a more recent peace process will allow us to understand gendered experience more comprehensively.

The Example of South Africa

A highly persuasive account of the gendering of peace concerns one of the most famous peace and reconciliation movements. Tristan Anne Borer’s analysis of the South African Truth and Reconciliation Commission (SATRC) shows that women were reluctant to talk about the sexual violence experienced during the apartheid era. Indeed, women were far more willing to discuss offences committed against male relatives rather than offences against themselves, a point illustrated by testimony concerning sexual violence (Borer, 2009). Rape, as argued by Diken and Lausten (2005), is a prime strategy of warfare. In their work on the Congo, Baaz and Stern (2009) show women were often raped by soldiers from their own country as well as by peacekeepers who were supposedly their protectors. Yet, among the 21,000 testimonies given to the SATRC, only 140 mentioned rape (Borer, 2009: 117; South African Truth and Reconciliation Commission, 1998: 296). One explanation for this outcome is that, according to its definition, the TRC was interested in gross violations of human rights (GVHR) confined to killing, abduction, torture or severe ill treatment. Notably, Borer (2009) does not argue that rape surely qualifies as severe ill treatment. However, she does show that in its desire to pursue racial injustices, the TRC underestimated the degree to which “patriarchal power relations were integrated and used to bolster the power of the oppressors within indigenous communities” (Goldblatt and Meintjes, 1998). The TRC was clearly aware of its deficiencies in this area and stated in its final report that the definition of GVHR adopted by the Commission resulted in a blindness to the types of abuse predominantly experienced by women. This evidence indicates how the processes and practices of peace can be misconceived when insufficient attention is given to gendered experience, and to the social constructivist role played by women in post-conflict situations.

The South African example is equally instructive in other ways. Though an understanding of women’s experiences is essential to the process of peace, women in South Africa were reluctant to describe assaults due to a sense of shame. Added to this sense of shame, black women generally feared that testifying against the men who raped them would bring shame on the post-apartheid government. Indeed, many of the alleged rapists held government office positions and some were prominent members of the ANC (Borer, 2009). In this context, it can be argued that truth was particularly dangerous for post-conflict reconstruction. In addition, women who testified to events of rape suffered before they themselves rose to significant positions in the ANC would be seen as ‘weak’ from a male standpoint, assuming they had ‘allowed themselves’ to be placed in such a situation. Ultimately, the TRC acknowledged that women had indeed suffered from gross violations of their human rights, yet did so without undertaking a full investigation of those violations, an inquiry which may have been further hampered by the widespread reluctance of men to acknowledge the acts of sexual violence committed (Borer, 2009).

The South African example is also helpful for understanding present-day South African society. Sjoberg (2013) and other scholars (McEvoy, 2009) have shown that peace needs to be ‘built’ and is “not something that can be imposed from the top down by political elites but something that must be constructed from the bottom up with citizen participation” (Sjoberg, 2013: 180). The absence of such participation in South Africa has led to a failure to implement fundamental changes in ordinary women’s lives, despite many black women now occupying significant government positions. In Borer’s view, the failure of the TRC to address these issues means that the chances of implementing such changes are made “immeasurably more difficult when one key institution devoted to raising awareness about the culture of human rights – such as a truth commission – turns a blind eye, no matter how unintentional, to the plight of women” (Borer, 2009: 1186).

Perhaps a positive conclusion to be drawn is that the absence of a full analysis of gendered experience could enable other post-conflict societies to understand the rigour needed if the process of peace is to be fully completed.

Broader Conceptions of Peace

If gendered experience is to be fully assimilated into the reconstruction of peace in post-conflict situations, a much broader understanding of the nature of peace is needed. As discussed, peace is not merely the absence of war, but also the absence of violence and insecurity. Birgit Brock-Utne (1989) persuasively suggests that peace should encompass justice and equality rather than simply an end to war. The replacement of violence and insecurity with justice and equality can be achieved only if certain areas of gendered experience are addressed. Brock-Utne suggests that these areas include wife-beating, unequal working conditions and free speech, and may also include an end to sweat shop labour and gendered divisions of labour and resources. Women working in factories whose rights are infringed by the demands of war, those forced into prostitution, and those whose domestic safety is threatened, can all begin to shape peace processes by bringing their situation to the notice of relevant authorities. However, such willingness to give evidence may be limited, particularly in societies where war is closely linked to ideals of masculinity.

In societies where masculinity and militarism are particularly intertwined, the proclivity for war can be a structural rather than an incidental issue. Gendered experience can shape the process of both war and peace by showing how war is often perceived as the conventional image of “(masculine) warriors” protecting “(feminised) civilians” (Sjoberg, 2006). Such notions of protection are often far removed from the reality of feminine experience of war. Women are not necessarily protected in such situations and when they are, such protection may be dependent upon a loss of other rights such as the freedoms of expression and self-determination. Susan Rae Peterson has argued that war is a ‘protection racket’ whereby the lives of those ostensibly protected are risked to justify the making of war (Peterson, 1977). Indeed, some people justify the making of war by reference to the protection of the idealised ‘female’, a process which frequently entails the subjugation of women. This is one of the reasons why military propaganda has typically focused on the victimisation and murder of women by enemy combatants in order to motivate men to volunteer for service. Victory can legitimise exploitation and provide an excuse for violence if that exploitation is resisted.

The analysis above underlines the crucial role of gendered experiences in shaping peace processes. However, to take the first steps towards achieving this goal, it is vital that the theoretical positions underpinning peace activism are fully understood. The essentialist position places innate male violence at the root of war, making a clear link between war as it is commonly understood and violence in domestic situations (Kelly, 2000). Moreover, it is argued that attacks on women in war are evidence of a male desire to possess women as property, given that property, if defined broadly, can include productive labour and reproductive capacity (Turshen, 2001). In addition to physical assaults, women in war are made responsible for tending to the injured, caring for the young, and playing their part to ensure that another generation will be produced. This view clearly does not reflect the full range of gendered experiences in either war or peace, and fundamentally limits women to the traditional reproductive and nurturing roles. As Louise Vincent suggests, peace-builders who rely on such stereotypes:

“are reinforcing rather than assisting the fundamental revisioning of prevailing relations of gender dominance which justify women’s exclusion from the public sphere of work and politics on the basis of their putative special responsibilities and proficiencies as mothers” (2001: 5).

There seems to be a double-knot here, in that the evidence of the WPS suggests that women’s roles in peace-building are limited partly because of an essentialist outlook, and such a limitation refers to both male and female failing to be considered when peace processes are underway. It is these deficiencies which clearly need to be addressed if war is to be fully understood and peace built on secure foundations.

Conclusion

Evidence suggests that gendered experiences have shaped the processes of war and peace far more in recent years than has historically been the case. It is now understood that women’s experiences include more than simple nurturing and, just as significantly, that male roles in conflict and conflict resolution can be stereotyped as well. El-Bushra et al. (2005) has pointed out that women engaged in peacebuilding have been described as ‘weaving’ peace or supplying a ‘warm blanket’ of peace. Although such words reflect essentialist preconceptions of women’s roles, gendered experience is generally viewed as more concerning. Social constructivism offers opportunities to reveal the depth and variety of gendered experience. Gradually, an understanding of these two positions is filtering into peace processes. At the same time, the deficiencies outlined in South Africa, the Congo and elsewhere, not to mention the limitations of the United Nations in this regard, reveal that many more connections need to be made if gendered experiences are to be completely reflected in post-conflict contexts. This may change both the lives of everyone involved in conflicts and the complex processes of reconciliation that follow them.

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Why Is Sexual Violence Such an Effective Weapon of War?

Dawn Stevenson, University of Leeds, UK

Dawn Stevenson studied International Development and Spanish at the University of Leeds. After volunteering with a sustainable development NGO in Nepal for 9 months, Dawn is now working as a Policy Advisor in the Civil Service. Her main areas of interest are human rights, climate change and sustainable agriculture.

Abstract

Sexual violence is one of many war crimes that is effectively and strategically committed to achieve war aims; it encompasses many forms of violence and is perpetrated against victims of all genders during both wartime and peacetime.This paper argues that rape is an extremely effective weapon of war because its multidimensional consequences give rape the powerful ability to destroy not only its victims, but to tear apart their families and communities. It will explore how rape becomes a strategic tool to inflict long-term, devastating and debilitating consequences for female victims, for the men socially connected to them, and equally for their communities and future generations. These consequences are facilitated by gendered structural violence and inequality entrenched in patriarchal (male-centred, structured in sexism) societies and their perceptions of female sexuality and male dominance. These pre-existing perceptions and attitudes facilitate the widespread use of sexual violence as both a deliberate strategy of war and as an outcome of economic grievances.

“We won’t waste bullets on you; we will rape you and that will be worse for you” (Zimbardo, 2007, p. 13)

Sexual violence is one of many war crimes that is effectively and strategically committed to achieve war aims in almost every armed conflict in recorded history (Jones, 2013, p. 1). Until the recent UN recognition of its systematic and deliberate employment as a strategic weapon of war in 2008 (UN, 2014), sexual violence had been perceived as merely a consequence or side effect of war (MSF, 2004). However, brutal and devastating forms of sexual violence are utilized to achieve the military and political objectives of warring factions, to terrorize, displace and destroy ‘enemy’ groups (UN, 2014; Baaz and Stern, 2009; Jones, 2013, p. 2). Sexual violence encompasses many forms of violence and is perpetrated against victims of all genders during both wartime and peacetime. For clarity and precision of focus this article will specifically analyse sexual violence in the form of rape of women and girls. As it is rape that is perpetrated en masse as an effective weapon of war (Farwell, 2004). Moreover, the preponderance of rape warfare is perpetrated against women and girls (UN, 2008).

This article will argue that rape is an extremely effective weapon of war because its multidimensional consequences give rape the powerful ability to destroy not only its victims, but to tear apart their families and communities. It will explore how rape becomes a strategic tool to inflict long-term, devastating and debilitating consequences for female victims, for the men socially connected to them, and equally for their communities and future generations. These consequences are facilitated by gendered structural violence and inequality entrenched in patriarchal (male-centred, structured in sexism) societies and their perceptions of female sexuality and male dominance (Boesten, 2012). Structural violence is defined as violence present not necessarily in direct, physical action but embedded into the political and economic structures of society (Farmer et al. 2006, p. 1686). Many forms of social injustice, including gender inequality and poverty form structural violence because they prevent individuals from realising their physical and mental potential (Galtung, 1969, p. 171). This article will conclude that these pre-existing perceptions and attitudes facilitate the widespread use of sexual violence as both a deliberate strategy of war and as an outcome of economic grievances.

To explore these issues, the article will principally analyse the case study of the Rwandan Genocide (1994), in which systematic, militarised rape was clearly used as a strategy of genocide to achieve ethnic cleansing and displacement of the Tutsi population. It will also draw from comparisons from the lengthy conflict in the Democratic Republic of Congo (DRC) (1997-2003), which provides insight into the complex interplay of the strategic, militarily-commanded use of rape understood by the ‘Rape as a Weapon of War’ discourse (Eriksson Baaz and Stern, 2013, p. 4), and the wartime exacerbation of ‘normal’ sexual violence born of soldiers’ socioeconomic grievances rooted in structural violence. It will explore how in both Rwanda and the DRC, rape warfare perpetrated with the economic goal of extorting personal assets and land by displacing women and communities, thus showcasing the political economy of rape (Turshen, 2001).

Sexual violence as a tool of genocide in Rwanda

We must first examine the use of sexual violence as a tool of genocide in Rwanda and explore why it was so effective in achieving the Hutu war objectives of destroying the Tutsi ethnic group and displacing them from land and assets in order to pillage. During the three months of genocide in Rwanda in 1994, an estimated 800,000 to 1 million Rwandans died, eradicating three quarters of the Tutsi population (Jones, 2013, p. 2). The systematic rape of up to 500,000 Tutsi women perpetrated by the ‘Interahamwe’ Hutu militia groups, civilians, and soldiers of the national Rwandan Armed Forces (FAR) (Human Rights Watch, 1996), was used as a weapon of war and an act of genocide with the intent to destroy the Tutsi ethnic group.

Understanding why rape was used as a weapon to further war objectives in Rwanda necessitates understanding the foundations of the genocide that created those objectives. The root of this genocide was the colonial assignment of distinct races to the previously fluid Hutu and Tutsi ethnic groups, creating “racialized political identities” that were later reproduced by nationalism during the post-colonial Rwandan revolution of 1959 (Mamdani, 2003, p. 144). Rwanda became a ‘Hutu nation’, in which the ‘alien’, non-Rwandan Tutsi aristocracy was seen to be holding a colonial, illegitimate claim to power. This language of political racialisation produced a radicalised Hutu social ideology which was inflamed by the military invasion of the Rwandan Patriotic Army (RPA) of exiled Tutsis from Uganda in 1990, which in turn triggered the civil war. The invasion was seen as an attempt to restore the colonial Tutsi monarchy, which justified brutal Hutu-Tutsi violence to wipe out the Tutsi population, all in pursuit of justice for the Hutu nation (Mamdani, 2003, p. 143, 147).

Genocide can be committed through various methods: by the mass murder and prevention of future reproduction of a victimized group, but also by destroying the cultural and social bonds of that group (Card, 1996, p. 8). In Rwanda, rape was used as a weapon for both strategies in the destruction of the Tutsi population. Firstly, rape was used to control reproduction, to end the Tutsi ‘race’ not only through murder and forced sterilization of Tutsi women by mutilation (Sai, 2012), but also by changing the race of the next generation through pregnancies resulting from Hutu rape of Tutsi women. During the genocide thousands of Tutsi women were gang-raped and raped with objects such as sharpened sticks and gun barrels, to cause life threatening injury and to forcibly sterilize them, to prevent the Tutsi population from bearing children (Human Rights Watch, 1996). In patriarchal societies such as the one in Rwanda, children adopt the father’s ethnicity; hence children of forced pregnancies take the ‘enemy’ group’s ethnicity (Sai, 2012). This ‘deliberate pollution’ of the “bloodlines of victimised populations” (Bartels et al., 2013, p. 341) is a frequent feature of genocidal warfare. It was also employed during the Bosnian war (1992-95), in which the systematic mass rape of an estimated 60,000 Bosnian women was used as a strategy for the genocidal ethnic cleansing of the Bosnian race through forced pregnancies, so that raped Bosnian women would give birth to a Serbian baby (MSF, 2004). The ability of rape to eliminate ethnic populations by changing the bloodlines of the next generation through forced pregnancy makes it a unique tool of genocidal warfare.

Rape warfare is extremely effective in decimating enemy communities because of its multidimensional, devastating and long-term consequences for raped women in the aftermath of their abuse. Many women raped in conflict are killed directly after or die from their injuries (Card, 1996, p. 8), whilst survivors can suffer life-threatening and long-term physical injuries from rape and/or mutilation (MSF, 2004). Many victims are also deliberately infected with HIV, which in fact led to an epidemic in Rwanda (Park, 2007, p. 15). Psychologically, sexual violence is used to intimidate, threaten and keep women in a state of fear (Brownmiller, 1986). In Rwanda, the Hutu population was encouraged to “use rape as a tactic of terror and spiritual annihilation” (Jones, 2013, p. 2), stripping Tutsi women of their dignity and identity (Sai, 2012) and causing long-lasting trauma (MSF, 2004).

Another factor that contributes to the efficacy of sexual violence as a weapon of war is that perpetrators of rape warfare have historically maintained impunity from retribution (Falcon, 2001). Despite its recent recognition by the UN and international community as a global security problem (Eriksson Baaz and Stern, 2013), rape remains one of the most “under-reported and inadequately prosecuted of all war crimes” (Allen, 2007; Jones, 2013, p. 1). The stigma and socioeconomic consequences for sexual violence victims, rooted in patriarchal gender inequality, reinforce impunity. As the vast majority of women who suffered rape and other forms of sexual violence in both Rwanda and the DRC did not report or reveal the abuse they went through due to fear of rejection and ostracization from their community (Human Rights Watch, 1996). Moreover, sexual violence is not sufficiently addressed in post-conflict reconstruction and transitional justice programs. The impunity of sexual violence is important to consider because a lack of deterrence “only perpetuates its use and lessens the likelihood that perpetrators will face justice for their transgressions” (Jones, 2013, p. 2) as well as reinforcing the image of a soldier’s entitlement to rape as a spoil of war (Falcon, 2001).

The physical and psychological trauma of rape is exacerbated by its socioeconomic consequences that are underpinned by gender inequality and patriarchal perceptions of women and female sexuality. This gives sexual violence the ability to destroy not only its victims, but also their families and communities. The importance of women’s sexual virtue and the prizing of female virginity means that raped women suffer from great stigma and shame. Survivors are commonly ostracised by their families and communities (Nolen, 2009) and are vunable to reintegrate into society. The husbands of rape survivors are also considered shamed, thus raped women are often rejected by their husbands (2009), especially when left with pregnancies and children from rape Thereby they lose their access to land and economic sufficiency, thus being forced to live in isolation and poverty (MSF, 2004). In this way, because of the structural violence of gender inequality entrenched into patriarchal societies, rape can tear apart families and communities, and create a population of landless, ostracised women in extreme poverty, transforming rape into “a kind of slow murder” (UN, 2008). Therefore, underpinning the power and efficacy of sexual violence as a weapon to dominate, destroy and humiliate enemy groups and the choice to use this method, is the cultural emphasis on women’s sexual virtue and on controlling female sexuality, founded on normalized gendered violence and gender inequality (Eriksson Baaz and Stern, 2013, p. 4).  The consequences of rape then reinforce the structural violence of gender inequality, as stigma, shame; social and economic ostracization and poverty exacerbate the already subordinated position of women in society, forming a continuity of violence against women, both structural and direct.

Women’s bodies as a battleground

Perpetrators exploit cultural conceptions of women’s sexual virtue and of men as protectors, to destroy individuals, families and communities through brutal forms of rape. In Rwanda, mass rape was used to tear apart communities and eliminate the cohesion of the Tutsi population. Frequent and brutal patterns of sexual violence during the Rwandan genocide included rape in the presence of family members, and equally witnessing the torture and murder of relatives (Human Rights Watch, 1996). This method was also employed in the Rape of Nanking during World War II, where Japanese Imperial Army soldiers gang-raped tens of thousands of Chinese women and girls, including the frequent use of forced rape between family members upon threat of death and forcing victims to watch the rape of their relatives (Jones, 2013, p. 1). These patterns exhibit a “calculated employment of psychological warfare aimed at reducing the cohesion of family units and the community as a whole” (2013, p. 1). The fundamental function of rape is the assertion of a “cross-cultural language of male domination” (Card, 1996, p. 11) by which perpetrators dominate and humiliate not only their female victims but also the men who consider themselves protectors of those women – husbands, fathers and brothers: “you destroy communities. You punish the men, and you punish the women, doing it in front of the men” (UN, 2008). The way women and girls are raped to humiliate and dominate their male relatives reflects the entrenched, structural, gendered violence they suffer, as “their bodies become a battleground over which opposing forces struggle” (Park, 2007, p. 15). Built upon these foundations, the multi-dimensional destructive consequences of rape are particularly effective in damaging familial and community cohesion (Card, 1996, p. 11) and are strategically employed to achieve “genocide by cultural decimation”, rendering mass killing unnecessary (1996, p. 8).

The mutilation of breasts and genitals that was perpetrated en masse alongside rape during the genocide formed part of a campaign of terror and “intimidation in its most malevolent form” (Jones, 2013, p. 2) and showcased the efficacy of rape and other forms of sexual violence as a weapon of war. This pattern reflected the hate media propaganda that portrayed Tutsi women as overtly “sexual weapons that would be used by the Tutsi to weaken and ultimately destroy the Hutu men” (Sai, 2012). As well as mutilations that took away distinctly Tutsi, ‘Hamitic’ features, the breasts, vagina and pelvic areas of victims were sometimes mutilated with machetes, sticks and boiling water following rapes (Human Rights Watch, 1996). Moreover, during the war and genocide women were more often raped out in the open than in their homes, often killed directly after they were raped, and “left splayed on public roads… with mutilated genitalia” (Sai, 2012). The horrific brutality of these assaults displayed publicly enacts symbolic violence, in that it sends the clear message of terror that “this can happen to you” (2012), validating Brownmiller’s (1986) assertion that through rape, “all men keep all women in a state of fear”. The clear patterns of mutilation show and symbolize the extreme bodily (re-)assertion of male Hutu dominance over Tutsi women and their sexuality, and over the whole Tutsi population, again exemplifying a war being fought over women’s bodies, which become the battleground for the humiliation of the enemy (Réseau des Femmes pour un Développement Associatif, 2005) (Park, 2007, p. 15).

A further purpose for using rape as a weapon of war in Rwanda was to disperse or forcibly relocate Tutsi communities, not only for ethnic cleansing, but strategically for the extortion of land and assets (UN, 2008). This was rooted in underlying Hutu grievances caused by the structural violence of social inequality between Hutus and Tutsis, entrenched by the colonial legacy of Tutsi aristocracy, which justified the extortion or ‘taking back’ of land from Tutsi families. Furthermore, the civil war legacy led to mass displacement, with 15% of the Rwandan population living in camps by 1994 (Mamdani, 2003, p.147).  The “plight of the displaced spread fear”, with hate media propaganda playing a crucial role in creating the discourse that if the Tutsi returned to power, the ‘Hutu nation’ would “lose both their land and their freedom, in short, everything” (2003, p. 147). Therefore, during the genocide, soldiers seized the property of widows whose husbands they had killed, acquired land through forced marriage to their victims, and pillaged the houses and possessions of those they raped (Turshen, 2001, p. 7). Some village massacres and mass rapes were committed for the prospect of acquiring land and assets (2001, p. 7) by killing the inhabitants and/or terrorizing them into fleeing their homes.

Rape for the extortion of assets: the case of the DRC

The effectiveness of rape as extortion of assets has also been a major objective of its mass perpetration during the lengthy conflict in the Eastern Democratic Republic of Congo (DRC). Sexual violence has been a ‘defining feature’ of the war, making it the clearest “example of brutality and [the] widespread nature of rape in modern-day conflict” (Bartels et al., 2013, p. 307), with currently approximately 1.8 million Congolese women having been raped in their lifetime (Hirsh and Wolf, 2012). Mass, brutal rape of civilian women was used to “destabilize, dominate and destroy entire communities” by up to 20 armed ‘warring parties’ in the Eastern DRC fought for control over the region’s vast reserves of gold, diamonds and other minerals (Bartels et al., 2013, p. 307) (Dettke, 2012). Clear patterns in the perpetration of rape show that it was committed systematically and strategically for the economic objectives such as wresting personal assets and land from women, creating the political economy of rape (Turshen, 2001, p. 1). Most rapes were perpetrated by armed combatants, and the livelihood of the majority of female victims was in agriculture, which gave them access to the valuable assets of land and livestock (Bartels et al., 2013, p. 332). The majority of rapes were committed inside the victims’ own home and in their fields, often in the presence of husbands and children (Hirsh and Wolf, 2012), and often with extreme brutality echoing those in Rwanda, including forced rape between victims, rape of the very young, old and pregnant, mutilation and murder (Bartels et al., 2013, p. 350). These patterns clearly showcase rape perpetrated to terrorize and displace women and communities, leaving abandoned settlements to the persecutors (Dettke, 2012), the power lies in the atrocity of rape which makes it an effective weapon of war.

However, analysis of rape warfare must consider that the causal factors of its perpetration are more complex than ‘simply’ as a deliberate tactic to achieve war aims. For Eriksson Baaz and Stern, the ‘rape as a weapon of war’ discourse can be problematic, because of its seemingly universal conception of rape warfare as a conscious military strategy, ordered and “enforced down the chain of command” (2013, p. 4). In some contexts, this very much is the case: in Rwanda both the killings and the mass, systematic use of sexual violence of the genocide are known to have been ordered or encouraged by military and political leaders at both national and local levels to further their political goal – the destruction of the Tutsi as a group (Human Rights Watch, 1996). However, the discourse can exclude the nuanced realities of different conflicts, in which a complex interplay of factors may lead to the perpetration of mass rape by soldiers without strategic orders necessarily being given (Boesten, 2010, p. 111).

In the DRC, the mass use of sexual violence in the conflict reflected the opposite: the breakdown of discipline and control in military structures, allowing soldiers to manifest their social and economic grievances into sexual violence (Eriksson Baaz and Stern, 2013, p. 4). Ethnographic research with soldiers in the DRC has shown clearly that individual perpetration of rape is very often directly caused by economic grievances and frustrations. Many militias in Eastern DRC are unpaid, with soldiers having little or no access to resources, making their living from extorting the population when possible in order to survive. Militias are dysfunctional and undisciplined, with combatants poorly trained, therefore rape becomes an ‘ideal’ and effective tactic to facilitate soldiers’ pillaging of local villages, that soldiers rely upon to meet their material ‘needs’ (Bartels et al., 2013, p. 342), without being a necessarily mediated and ordered warfare strategy. Interviewed soldiers said they had never received specific orders to rape, rather they had the attitude that rape is unavoidable in conflict situations (Eriksson Baaz and Stern, 2010, p. 31), and that rape was tolerated (even if not ordered) by their commanders. Furthermore, many soldiers claimed that poverty was their main reason for perpetrating sexual violence as well as other forms of violence, both to facilitate pillaging, and in their resorting to force to fulfil their sexual ‘needs’, being unable to “get a woman the normal way” without money (2010, p. 31).

Therefore, it can be said that the structural violence of extreme poverty can produce opportunistic rape (Boesten, 2010) within a patriarchal society that normalizes violence against women. From their justifications for rape, it is clear that in reality, widespread perpetration of rape by soldiers in the DRC (as in all conflicts), is caused not only by an ordered strategy but also influenced by the interplay of many contributing causes. These include ideas of militarised male sexuality that make them feel entitled to rape, and justify sexual violence as a ‘normal’ and ‘unavoidable’ consequence when combatant men are deprived of sex (Eriksson Baaz and Stern, 2010, p. 32). Moreover, pre-existing patriarchal perceptions of women as sex objects and of rape as a legitimate ‘spoil’ of war (UN, 2014) justify perpetration of the mass rape of women, and are exploited during conflict, facilitating the targeting of women through sexual violence as a weapon for achieving war aims. The intersection of normalized, gendered violence, and extreme wartime violence can be seen here: research shows that sexual violence is perceived as normal by communities in Eastern DRC (Hirsh and Wolf, 2012), and wartime violence is the “magnification of existing institutionalized and normative violence against women” (Boesten, 2012, p. 7). Therefore, the efficacy of sexual violence to achieve war aims, as both a deliberate strategy of war and as the outcome of economic grievances, is facilitated by pre-existing perceptions and attitudes which embody gender inequality and normalized gender-based violence, for “what people tolerate in peace shapes what they will tolerate in war” (Nordstrom, 1997, p. 1).

Conclusion

Sexual violence becomes an inexpensive and readily available yet extremely effective tool to achieve war objectives (Nolen, 2009), because of its immense impact that destroys and displaces communities (Bartels et al., 2013, p. 352), eliminating the cohesion of opposition and providing opportunities for perpetrators to pillage assets and extort land from their victims (Dettke, 2012, p. 2). Though not the only war crime that is used as a weapon to achieve these purposes, sexual violence has a unique ability to destroy its victims physically, socially and economically and tear apart their families and communities, stripping the humanity not just from the victim but from the group she is part of (Eriksson Baaz and Stern, 2013, p. 54). Held up by the structural gendered inequalities and perceptions of women in patriarchal societies, the consequences of rape devastate not only the victim but humiliate and destroy her family and community. The brutality and horror of rape perpetrated in warfare are so effective in terrorizing the population and preventing rehabilitation that they facilitate its use as a tool to achieve ethnic cleansing and displacement. The ability of rape to forcibly sterilize an enemy population and to ‘pollute their bloodline’ by changing the ethnicity of the next generation also make it a unique strategy of genocidal war. Moreover, whilst other war crimes face consequences in the post-conflict period, perpetrators of rape warfare commonly face no retribution. However, analysis of the complex interplay of contributing factors to the widespread use of rape in warfare, including the manifestation of economic grievances and brute poverty, and the exacerbation of pre-existing normalized sexual and gendered violence, shows that one cannot only conceptualize its use through the ‘weapon of war’ discourse, but must also consider these factors to gain a clearer understanding of the realities of rape in warfare.

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The Evolution of the International Fact-Finding Missions in Armed Conflicts – From Collecting Facts to Collecting Evidence

Niriksha Sanghvi, Leiden Law School, Netherlands

Niriksha Sanghvi is a graduate of the Advanced LLM program in Public International Law, with a specialisation in International Criminal Law from Leiden Law School, Netherlands.

Abstract

The paper explores the development of the International Fact-Finding Missions from the early Maine inquiry in 1898 to the International Humanitarian Fact-Finding Mission established under the Geneva Conventions and leading up to the UN ad-hoc inquiries in Syria and Myanmar with focused accountability mandates. This analysis is done in the background of the corresponding legal framework governing the establishment of these inquiries, with the Hague Conventions for Pacific Settlement of Disputes (1899 and 1907), the Additional Protocol I of the Geneva Conventions and the various UN resolutions establishing the conflict specific and ad-hoc fact-finding missions. The paper also discusses the differences between the mandates of these commissions and the increasing scope and importance that fact-finding inquiries have become to hold. On the basis of this evaluation, the paper concludes that the mandate and goals of these International Fact-Finding Missions have gradually shifted from clarifying and documenting the ‘factual events’ in contention between affected parties to investigating, collecting and preserving ‘evidence’ of international law violations in conflict areas. The role of fact-finding missions has therefore changed to documenting mass atrocities and furthering the efforts for criminal accountability of international crimes. In the process, there are certain problems that these commissions pose such as lack of state consent, lack of a standardised or prescribed standard of proof and donning of a quasi-prosecutorial role in an ad-hoc fashion. In light of this, it is proposed that the UN-Fact finding missions should be regulated through enactment of a set of protocol or rules to govern their mandate, reach and purpose to provide a sound legal basis for their functioning.

The aftermath of Second World War has seen an exponential rise of international, regional, national and non-governmental fact-finding commissions, commissions of inquiries and special rapporteurs appointed in various human rights and atrocities situation. These non-judicial bodies are appointed to investigate into the alleged violations of international human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL) and their documentations and recommendations have considerably strengthened the international law protection to combat mass atrocities.

There are, however, divided opinions on their legitimacy. The different themes being discussed around the rise of fact-finding missions are, firstly, that they represent a step towards accountability, especially in situations where there is lack of an effective international mechanism. This has become the case with the recent conflicts of Syria and the atrocities against the Rohingyas. In both situations, there is a complete breakdown of domestic machinery and lack of the political will of the State to protect the civilians. Adding to this, there is a deadlocked United Nations Security Council (UNSC) with its veto structure and the lack of jurisdiction of the international courts and tribunals. Nevertheless, in the Rohingya situation, the International Criminal Court (ICC) has established its limited jurisdiction over the crime of alleged deportation of Rohingyas to Bangladesh, a state party to the ICC (ICC Rohingya Decision, para 73). This limited jurisdiction, whilst providing hope for some kind of accountability, excludes other alleged crimes such as of genocide. In the Syrian and Yemen conflicts, no international court or tribunal currently has jurisdiction. Recognising these difficulties associated with international criminal prosecutions, the fact-finding missions are described as ‘second-best options’ (Crawford, 2018). Secondly, outside accountability, fact-finding missions are also a tool for raising awareness around the circumstances of conflict and generating pressure on the parties to the conflict to follow rules of IHL.

On the other hand, some argue that these missions exaggerate the actual situation on the ground so as to be put under the label of international crimes (Blank, 2010, p. 280). This is criticised as manipulation of the international law for political gains, and the increasing use of law as a tool of war or ‘lawfare’ is leading to every regular civilian death by a combatant in an armed conflict being labelled as a war crime (Dunlap, 2001, p. 4). There are scepticisms on the soundness of the recent juridification of these fact-finding missions whose role has been extended to legal classifications of violations and identification of possible perpetrators (van den Herik, 2014, p. 531; Blank, 2010, p. 289). In light of these opposite positions taken on the relevance of fact-finding missions, there is no consensus yet on their success or failure in propelling international criminal justice.

Further, there is no clarity on the limits and purposes of the UN based fact-finding missions which have grown from merely collecting facts to conducting legal analysis of the conflict and crimes. The preliminary question, therefore, is about their purpose. Is their scope to use the information as propaganda material or to base a political decision on ascertained facts, to come to a mediation, conciliation or negotiation, or to reach a legal opinion on basis of facts in a human rights case or a human rights situation, or to come to a binding judgment about an allegation of a human rights violation? (Ramcharan, 2014)

To answer this, the paper looks at the gradual evolution and widening of the scope of the international fact-finding missions since the Hague Convention on Pacific Settlement of Disputes to the enactment of Article 90 of Additional Protocol I of Geneva Conventions to the modern ad-hoc fact-finding missions constituted for investigation and collection of legal evidence. Next, the paper discusses the metamorphosis of mandates of fact-finding missions under the UN framework and analyses the value such missions bring while also looking at the probable drawbacks. Lastly, the paper concludes that to streamline the ad-hoc proliferation of international fact-finding missions, there is a need to frame proper guidelines or rules of procedures setting down the framework of their conduct. The purpose and procedure of a fact-finding mission should be clarified which in turn would provide a check and balance system on the activities of the fact-finding missions.

The Evolution of Fact-Finding Commissions

The evolution of fact-finding missions can be broken down into two phases – conventional or treaty based and ad-hoc inquiries under UN. The earlier fact-finding missions were treaty-based which have now grown to become more independent and are constituted under the aegis of UN on a case by case basis.

Initial Phase

The initial purpose of the fact-finding missions was literal to their meaning. It was to clarify the facts and set the account of an incident straight to avoid contradictory findings by different sides to a conflict (van den Herik, 2014, p. 510).

  1. Commissions of Inquiry under Hague Conventions

The first international commission of inquiry was formed in 1898 following the Maine explosion incident in Cuba. Separate national inquiry commissions appointed by the US and Spain to investigate the sinking of US battleship Maine reached conflicting findings on the cause of the massive explosion which had resulted in the death of 266 American crew members on board on February 15, 1898 (Fisher, 2009). The report released by the US naval board inquiry pointed it to be a Spanish sabotage which deteriorated the already tensed US-Spain diplomatic relations leading to the American-Spanish War (Pérez, 1989, pp. 293-295).

This incident delineated the need for establishing an independent and impartial fact-finding commission. Around the same time, the Russians invited the leaders of 59 of the world’s sovereign States to participate in a peace conference in The Hague which was the first of its kind (Baker, 2009). One of the outcomes of this conference was the Title III 1899 Hague Convention for Pacific Settlement of Disputes (Hague I convention) under which the states agreed to institute an International Commission of Inquiry as a means for settlement of their international differences or conflicts “involving neither honour nor vital interests, and arising from a difference of opinion on points of fact” (Article 9, Hague Convention for Pacific Settlement of Disputes. 1899). The idea was to agree on an impartial and conscientious investigation to be undertaken by the International Commission of Inquiry based on a special agreement by the concerned states, wherein each party to the conflict can be heard to determine the facts (Article 10, Hague I Convention). The Commission’s final report was intended to be in the form of only a statement of facts and the convention clearly states that it should, in no way, be in the form of an arbitral award (Article 14, Hague I Convention).

The mechanism for an international commission of inquiry was further developed under the 1907 Hague Convention on Pacific Settlement of Disputes (Hague II convention) in the Second Hague Peace Conference which set the procedural rules for composition and functioning of the commission. The rules provide for selection of members of the commission similar to the selection of arbitrators i.e. two members to be appointed by each party, who shall jointly appoint an Umpire (Article 45, Convention for the Pacific Settlement of International Disputes. 1907). It also allowed the parties to appoint special agents to represent state’s interests at the commission and act as an intermediary between the state and the commission (Article 14. Hague II Convention). In addition, counsels or advocates could be appointed by parties to state their case and uphold their interests (Article 14, Hague II Convention). The procedural rules mirrored an arbitral or adjudicatory procedures regarding procurement and examination of evidence, witness examination and expert opinions and allows written submission to be presented by the agents or counsels for the purpose of ascertaining the truth (Article 19-29, Hague II Convention). These rules already reflect a shift in attitude of the states towards the role of these inquiries from being independent investigative bodies focusing on finding facts to quasi-arbitral or quasi-mediatory tools of non-binding nature (Politis, 1912, p. 149 as cited in van den Herik, 2014, p. 536). However, the goal of these inquiries was still limited to the ascertainment of truth. Also, these inquiries were a bilateral exercise between two or more states in conflict and were not to be constituted by any international bodies. The initial uses of these inquiry commissions were limited to naval vessel destruction inquiries (van den Herik, 2014, p. 513).

  1. International Humanitarian Fact-Finding Commission

Modelled on the Hague Conventions, the International Humanitarian Fact-Finding Commission (IHFFC) is an independent and impartial expert body established under Article 90 of Additional Protocol I (AP I) to the Geneva Conventions. The IHFFC was also established to take on the traditional role of inquiring into facts and not to judge. The 1987 commentary to the Additional Protocols makes it clear that the purpose of the Commission is to try and establish the chronology of actual facts of an incident where there are contradictory narratives (ICRC 1987 Commentary). However, unlike the ad-hoc inquiries under the Hague Convention, IHFFC is a permanent international body based in Bern, Switzerland. It is composed of 15 members including medical doctors, judges, high ranking military experts, diplomats and international law scholars elected for a five-year period (Azzarello and Niederhauser, 2018).

The IHFFC has  a specific mandate to enquire into any facts alleged to be a grave breach as defined in the Geneva Conventions and AP I or other serious violation of the Geneva Conventions or of the Protocol and also facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and the AP I (Article 90(2)(c)(i) and Article 90(2)(c)(ii), Additional Protocol I). It has a consent-based competence similar to that under the International Court of Justice statute. It contains an optional clause on recognition of compulsory competence for States which at the time of signing, ratifying or acceding to the Protocol, or at any subsequent time, can declare that they recognize this competence ‘ipso facto’ (and without any special agreement) with respect to any other State making the same declaration (Article 90(2)(a), Additional Protocol I; ICRC 1987 Commentary). For other kind of situations, the IHFFC gains its competence only when all parties to the armed conflict make a declaration to that effect (Article 90(2)(d), Additional Protocol I). Such a declaration can be made by states without becoming a party to the AP I, thus allowing all parties to an armed conflict, including national liberation movements, to resort to the Commission on a case by case basis (ICRC 1987 Commentary).

Since this Commission has been established under AP I, it was originally interpreted to be limited to only international armed conflict. However, IHFFC has since clarified that it is willing to undertake inquiries into violations of IHL in non-international armed conflict as well, provided the parties to the conflict have consented to it (International Humanitarian Fact-Finding Commission, 2005, p. 1). The Commission interpreted its constituting Article 90 as including both the Geneva Conventions and the AP I and therefore, would also include common article 3 of the Geneva Convention which gives right to an impartial humanitarian body to offer its service to parties to the conflict, including an non-international armed conflict (Azzarello and Niederhauser, 2018). Same conclusion was inferred from the drafting history, subsequent practice, as well as the ordinary meaning in light of the object and purpose underlying Article 90 AP I (International Humanitarian Fact-Finding Commission, 2016, p. 2).

Since its official constitution in 1991 and recognition of its competence by 76 state parties, the IHFFC remained idle for many years, almost forgotten. A major reason for this has been states’ reluctance to accept the existence of an armed conflict and allowing an independent investigation (Sassoli, 2017, p. 6; Azzarello and Niederhauser, 2018) and also the lack of knowledge regarding the functions of IHFFC in light of the other fact-finding missions being established with overlapping mandates (International Humanitarian Fact-Finding Commission, 2016, p. 3). Suggestions have been made to amend the IHFFC framework to dissociate its seizure from state initiative, permitting the Commission to act on its own initiative, but it has not been materialised as yet (ICRC, 2004, p. 10). The Commission once came close to initiating inquiry in the armed conflict in Colombia. However, this did not materialise in the end as the agreement between the government and one of the armed opposition group to the conflict fell through after a change in the Colombian political landscape (International Humanitarian Fact-Finding Commission, 2001, p. 2).

A breakthrough came in 2017, when a situation was referred for investigation to the Commission when an Organization for Security and Cooperation in Europe (OSCE) armoured vehicle patrolling through Eastern Ukraine exploded resulting in the death of an OSCE paramedic. This was referred under an agreement signed between the OSCE and the IHFFC. A post blast forensic investigation conducted by an Independent Forensic Investigation team under IHFFC concluded that the anti-vehicle mine placed on the civilian road was the cause of the explosion but that the patrolling vehicle (SMM) was most likely not the intended target of the attack. The IHFFC report provides a brief legal analysis of the incident outlining that such an indiscriminate attack would be a violation of IHL (OSCE, 2017).

One criticism raised about this investigation is the legitimacy of the competence agreement signed by an international organisation (OSCE) instead of a High Contracting State authorising to investigate in a State’s territory. The 1987 commentary on Additional Protocols explicitly excludes “private individuals, representative bodies acting on behalf of the population, or organizations of any nature” from submitting a request to the Commission (ICRC 1987 Commentary). However, a supporting argument could be made that other international organisations like the UN Security have the power to refer an incident to the IHFFC through a Resolution under Chapter VII as has been acknowledged by IHFFC in its 2015 report on the work of the Commission (International Humanitarian Fact-Finding Commission, 2016, p. 2). Therefore, by analogy, other international organisations, like the OSCE, can also refer a situation to IHFFC. Further, article 90(2)(d) uses the term ‘party’ and not ‘High Contracting Party’ as used under article 90(2)(a) (A similar interpretation has been done in the ICRC blog: Azzarello and Niederhauser, 2018) which can be argued to include non-state actors like international organisations and rebel groups.

One of the main shortcomings of treaty-based mechanisms is their dependence on states’ consent or ratification to the relevant conventions establishing the mission or signing of a bilateral agreement for joint investigation. Furthermore, these mechanisms do not have any continuing monitoring powers over a conflict to provide consistent documentation. These mechanisms have, therefore, been limited to vessel inquiries and other non-atrocity or security related situations. The IHFFC is a novel creation under the Geneva Convention for the implementation of IHL. Unfortunately, it has not seen much success with only one proper investigation conducted since its inception. While a commission of inquiry report under the Hague Conventions could be read at public sittings (Article 13, Hague I Convention and Article 34, Hague II Convention), the IHFFC reports are released only to the parties involved (Rule 28(2), Rules of the International Humanitarian Fact-Finding Commission) widowing the general public from learning about any IHL violations. This provision could be a step to attract state parties to submit inquiry requests but as Marco Sassòli argues this also “creates a dent on the credibility of IHL” (Sassoli, 2017, p. 7).

Modern Phase 

Realising the potential of fact-finding missions as a means for ensuring enforcement and accountability under international law, the UN has also established various ad-hoc commissions to look into human rights and mass atrocities in conflicts. The terms fact-finding missions, commissions of inquiries, panel of experts, investigative mechanisms are used to describe these entities by different establishing bodies. However, there is no difference between them in terms of their purpose and methodological standards (OHCHR Report, 2015, p. 7).

The 1991 UN General Assembly (UNGA) Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security (1991 UN Declaration Annex (I) point 2) defines a fact-finding mission as “any activity designed to obtain detailed knowledge of the relevant facts of any dispute or situation which the competent United Nations organs need in order to exercise effectively their functions in relation to the maintenance of international peace and security”. The Declaration also requires the fact-finding missions to be “comprehensive, objective, impartial and timely” (1991 UN Declaration Annex (I) point 3) and should be deployed at an early stage in order to contribute to the prevention of disputes and situations (1991 UN Declaration Annex (I) point 12). Further, it necessitates taking consent of the state before sending a UN fact-finding mission to the territory of that State (1991 UN Declaration Annex (I) point 6). At all stages of the fact-finding process, the concerned states are to be given an opportunity to express their views (1991 UN Declaration Annex (I) point 26) and it allows the fact-finding missions to conduct hearings if required and according to appropriate rules of procedure (1991 UN Declaration Annex (I) point 27).

These ad-hoc fact-finding missions can be categorised further depending on whether they are established by the Security Council, General Assembly, Human Rights Council (UNHRC) (and its predecessor Commission of Human Rights) or the Secretary-General (The 1991 UN Declaration gives mandate to all three UN bodies. Annex (II) point 7).

  1. Appointing UN bodies

The UNSC has the primary responsibility for maintaining peace and security under its chapter VII mandate (Article 34 UN Charter 1945; Uniting for Peace Resolution, 1950). Accordingly, the UNSC has established inquiry missions to investigate into human rights violations in the Former Federal Republic of Yugoslavia (1992) (UNSC resolution 780) and Darfur (2004) (UNSC resolution 1564), Central African Republic (2013) (UNSC resolution 2127) and the latest mission to inquire into the Da’esh violence (2017) (UNSC resolution 2379). The inquires under UNSC are more powerful because of the enforcement powers of the UNSC (Kaufman, 2018, p. 11). The Security Council also has binding powers to direct cooperation of the involved states in ensuring justice.

However, the UNSC has proved ineffective in many other conflicts because the veto-wielding permanent members have blocked attempts to investigate into nations where they have personal interests. For instance, in Syria, as many as ten resolutions proposing steps to ensure accountability for international crimes in the on-going Syrian conflict have been vetoed by at least one of the permanent members (Nichols, 2017). In the Rohingya refugee crisis, numerous UNSC resolutions have been vetoed because of China’s trade ties and strong relations with the Myanmar government (Nichols, 2018; Simon, 2018). Such deadlocks in Security Council has made it ineffective in providing a timely and strong response for prevention of large-scale violations.

To fill this gap, the UNGA has initiated independent inquiries into certain conflicts. However, the authority of UNGA was challenged by many states, with the Russian delegation at the forefront, when the UNGA created the International, Impartial and Independent Mechanism (IIIM) for Syria in 2016 to document violations of IHL and human rights violations and abuses in the Syrian Arab Republic since March 2011. The main grounds of challenge were that the General Assembly does not have the power to establish the IIIM having quasi-prosecutorial powers as it does not itself have those powers. Secondly, the Mechanism was challenged on the ground that it was not in conformity with Article 12 of the UN Charter given that the UNGA was not empowered to act if the UNSC was exercising its function on the same matter.

The UNGA does not have an explicit mandate per se under the UN charter, however, its authority can be derived from Article 12 of the UN Charter. On a reverse interpretation of Article 12, the General Assembly has the power to consider a matter related to the maintenance of peace and security, if the Security Council is not exercising its function ‘at the same moment’. Further, the 1950 Uniting for Peace resolution also makes a provision for when the Security Council fails to act because of lack of unanimity of permanent members and allows General Assembly to “consider matters consider the matter with a view to making recommendations to Members for collective measures to maintain or restore international peace and security” (Uniting for Peace Resolution, 1950; Role of General Assembly).

The UNHRC, as a subsidiary body of the General Assembly, has also stepped up to fill the gap left by a paralysed security council. Although a weaker option, the Human Rights Council has in many situations broadened its human rights mandate into IHL and ICL. The UNHRC has established multiple commission of inquiries and expert groups to investigate into atrocity crimes in Lebanon (2006) (UNHRC resolution S-2/1), Gaza (2009) (UNHRC resolution S-9/1), Cote d’Ivoire (2011) (UNHRC resolution 16/25), Libya (2011) (UNHRC resolution S-15/1), Occupied Palestine Territory (2012) (UNHRC resolution 19/17), Korea (2013) (UNHRC resolution 22/13), Burundi (2015) (UNHRC resolution S-24), Yemen (2017) (UNHRC resolution 36/31), Syria (2011) (UNHRC resolution S-17/1), Myanmar (2017) (UNHRC resolution 34/22).

The UNHRC Commissions, however, only have voluntary jurisdictions and can make non-binding recommendations to the UNSC and the member states to take steps. The practice of the General Assembly seems to suggest that it can address different, and usually more limited, aspects of the matter than the broad politico-military questions covered by the ‘situation’ on the agenda of the Security Council (Simma et al., 2012 as cited in Wenaweser and Cockayne, 2017, p. 223; I.C.J., 2004, p. 148).

Apart from these UN bodies, the UN Secretary General can also send fact-finding missions under Article 99 of UN Charter which provides that ‘the Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security’. This provision has been interpreted as flexible and broad enough to permit the Secretary-General to exercise fact-finding powers (ECCHR, 2010, p. 2). Consequently, the Secretary General has invoked this power in Zimbabwe (2005) (Tibaijuka, 2005), Timor-Leste (2006) (Independent Special Commission of inquiry for Timor-Leste), and Fiji (2007) (UN Press Release, 2007) among others. Apart from these, the UN High Commissioner of Human Rights can also conduct its own fact-finding missions or provide assistance to the fact-finding missions established by the Human Rights Council or the Secretary-General (ECCHR, 2010, p. 4).

  1. Mandates

The mandates of the various fact-finding commissions established have varied over the years from finding facts to documenting IHRL violations to also including IHL and ICL violations. These mandates have further differed on the basis of the area, nature of violations and time period covered by them. Some missions had a general mandate to cover the entire country like in Syria whereas some missions have the mandate to cover only a part of the country like Darfur in Sudan (OHCHR Report, 2015, p. 9). Some mandates require missions to inquire into all violations of human rights or humanitarian law in a conflict situation. However, in some instances the language of the resolution was very specific as regards the nature of the violations that the commission/ mission was expected to investigate (OHCHR Report, 2015, p. 17). The 2012-2013 Palestine inquiry was set up by the OHCHR to look into the “limited implications of the Israeli settlements only on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem” (Terms of Reference, Palestine, 2013).

Some other missions have specific mandates of investigating a particular incident for example the post-election violence in Cote d’Ivoire (UNHRC resolution 16/25); the Gaza-Flotilla incident (UNSC resolution S/2010/414); and  the Rohingya refugee crisis in Myanmar (UNHRC resolution A/HRC/39/64). Recently, the Security Council established the Iraq mission with a specific mandate of investigating violations by only one party to the conflict i.e. ISIL or Da’esh violence in Iraq. As a condition for full support of the Iraq government, the resolution specifically mentions that the investigation team will operate with full respect for the sovereignty and territorial integrity of Iraq and that its terms of reference will be approved by the government of Iraq (UN Press, 2017). In a way, this pre-requisite of state consent is abiding by the UN 1991 Declaration on Fact-Finding Missions discussed above. However, this one-sided approach has received criticism, with Global Justice Center stating that “Only prosecuting Da’esh fighters reeks of victor’s justice” and asking for more comprehensive mechanism to hold all perpetrators liable, including Iraqi, Kurdish and the Coalition forces (Global Justice Center, 2017). Human Rights Watch has observed that the “lack of impartial justice could undermine longer-term prospects for stability and development. An imbalance in accountability efforts threatens to open new divisions and could breed a resurgence of ISIS-like groups …” (Human Rights Watch, 2017).

Under the recent UN resolutions, more powers have been given to the newer fact-finding missions. The mandates of the earlier fact-finding missions were limited to investigations of facts and circumstances. This can be seen in the missions deployed in Burundi, Timor-Leste and Darfur among others (OHCHR Report, 2015, p. 18). This language has now evolved to state “investigate or examine alleged violations of international human rights and other international laws”. This is the case with Syrian Commission of Inquiry (2011), the Yemen Group of Eminent Experts (2017) and the Myanmar Independent Fact-Finding Commission (2017) (UN Library and Archives). This language is also found in the mandate of the newer IIIM Syria set up by UNGA in 2016, which is to “a) collect, consolidate, preserve and analyse evidence of violations of IHL and human rights violations and abuses and b) to prepare files in order to facilitate and expedite fair and independent criminal proceedings” (Terms of reference, Syria, 2011). The ISIL inquiry set in Iraq also has a similar mandate to collect evidence and share it with national courts or other investigating bodies (Terms of reference, ISIL, 2017). The purpose of these missions has shifted from finding presence of violations to finding evidence for violations (Similar point made in van den Herik, 2014, p. 535).

In addition to this, some commissions are further required to also identify the list of probable perpetrators responsible for the commission of international crimes. Both the UNHRC and UNSC have given such wide powers to various commissions in Darfur (2004), Guinea (2009), Libya (2011), Central African Republic (2014) and Syria (2016) (OHCHR Report, 2015, p. 21-22). In practice, however, most of these missions, with the exception of Guinea and Timor Leste, have kept the list confidential and handed it to the Secretary-General or the High Commissioner for Human Rights (OHCHR Report, 2015, p. 22). Many of these commissions have resulted establishment of a court or tribunal initiation of a criminal proceedings (Aksenova and Bergsmo, 2015, p. 3). The UN ad-hoc tribunals established for Yugoslavia, Rwanda, Lebanon and Cambodia were preceded by a Commission of Inquiry investigating in these regions. Findings of these commissions can become relevant in an on-going preliminary examination at the ICC (ICC, Office of the Prosecutor, 2015) or in referring a new situation to the ICC (In an interactive dialogue held by UNHRC, many states urged for a Security Council referral of the situation in Myanmar to the ICC, OHCHR Press Release, 2018).

Lastly, the commissions are also asked to provide recommendations on accountability measures with the view to end impunity. The Myanmar Commission has made a recommendation to prosecute the senior named military officials in an international criminal tribunal for genocide, crimes against humanity and war crimes (UNHRC resolution A/HRC/39/64, 2018), whilst the Syrian Commission of Inquiry has repeatedly called for the Security Council to “refer urgently the situation in Syria to the International Criminal Court, or to establish an ad hoc tribunal with relevant geographic and temporal jurisdiction” (UNHRC resolution A/HRC/32/CRP.2, 2016).

The overall mandates of the modern missions can thus be summarised as a) investigation and establishment of facts b) legal assessment of the fact c) collection of evidence for preparation of a criminal trial d) provision of recommendations to different stakeholders.

Concerns about Modern Fact-Finding Missions 

Standard of proof

Commissions differ from the judicial organs in that they are not bound by the ‘beyond reasonable doubt’ standard of proof, the principle of equality of arms, or the principle of individual criminal responsibility (Aksenova and Bergsmo, 2015, p. 4). In fact, many recent international fact-finding missions that have been established with a quasi-judicial or quasi prosecutorial role have lower evidentiary threshold. The 1899 and 1907 Hague Conventions are silent on the role of fact-finding missions as quasi-judicial entities and hence, are silent on the standard of proof required to be followed by these missions. The 1991 UN declaration focuses on their role in prevention of disputes and assisting the competent UN body and are again silent on the required standards of proof. The AP I to Geneva Conventions limits the functions of IHFFC to fact-finding and does not provide for standards of proof.

In the absence of any precedential guidance, many ad-hoc commissions have used a lower evidentiary threshold, such as “reasonable suspicion” (OHCHR Report, 2006, paras 12 and 110), “preponderance of evidence” (UNHRC resolution A/HRC/15/21, 2010), or “balance of probabilities” (e.g. UNHRC resolution A/HRC/19/68, 2012, para 7), while some other fact-finding reports articulate no standard of proof at all. For instance, the report of the Bahrain Commission of Inquiry makes no mention of the commission’s standard of proof. Additionally, the report of the fact-finding mission mandated by the United Nations Human Rights Council to gather information about the Israeli Flotilla raid of 2010 simply states, “The Mission found the facts set out below to have been established to its satisfaction”. (See, UNHRC resolution A/HRC/15/21, 2010, para 183). These standards are lower than the lowest standard of ‘reasonable grounds to believe’ required at the ICC to issue arrest warrants.

The recent commissions have realised this gap and the standard of proof used by the commissions under UNHRC with a mandate to collect evidence and identify perpetrators has been elevated to ‘reasonable grounds to believe’ (UNHRC resolution A/HRC/40/70, 2019). However, the Hague Justice Portal has sceptically mentioned that “this standard as understood and employed by the fact-finding mission might not necessarily be congruent with the standard required by the ICC”. The IIIM Syria established by the UNGA has acknowledged the fair trial concerns and their terms of reference mentions that “these procedures shall be based on international law and standards, notably the right to a fair trial and other due process provisions under international human rights law, as well as on the jurisprudence, procedural standards and best practices of the international criminal tribunals” (Terms of reference, Syria, 2011). It remains to be seen how these standards would be incorporated by the IIIM in their investigation as they have not released their report yet. The UNSC sponsored commissions, on the other hand, have a higher standard of proof. The UNSC inquiry in Yemen provided an opportunity to reply to the states, entities and individuals implicated for crime patterns to get a balanced view (UNSC resolution S/2019/83, 2019).

Premature Determination of Accountability

Most modern fact-finding missions have a monitoring mandate, but some also go a step further in ensuring accountability and analysing applicability of international laws. These fact-finding missions, acting as quasi-judicial bodies, are engaging in judicialisation of factual findings (van den Herik, 2014, p. 508). Questions have been raised about the blurring lines between international criminal courts and international fact-finding mission (Grace and Coster Van Voorhout, 2014, p. 4-5). The reports documenting incidents of violations of IHL and categorising as them as crimes against humanity, war crimes or genocide are based majorly on victim and witness interviews and analysis of other NGO and UN reports. Many of these reports are not based on rigorous methodology as the documentation of many violations have no proof or sources attached to it. This is the case with most reports of the Syrian and Myanmar inquiries which provide almost no sources or annexes for their information. The fact-finding missions, therefore, do not necessarily provide conclusive evidence but only create the base for a criminal prosecution and which can be referred to by the ICC Prosecutor to start an investigation. This raises the question of utility of such accountability documentation in criminal trials. In the request to initiate an investigation on the situation in the Republic of Côte d’Ivoire, the ICC Prosecutor relied considerably on the independent inquiries reports to gain information on the exact locations where crimes were committed, the pattern of attacks, and indicate indicia of state involvement through the instigation of xenophobia and the fanning of ethnic and political hate (ICC, Office of the Prosecutor, 2011, para 29). However, the ICC pre-trial chamber in the Laurent Gbagbo case had raised concerns about the ICC Prosecution’s sole reliance on the NGO reports, UN reports, and press articles and stated them as being “anonymous hearsay” from outside entities (ICC, Pre-Trial Chamber I, 2013, p. 17).

While maintaining privacy and confidentiality of sensitive information is crucial, documenting facts as violations of IHL without hearing the defence side clouds the credibility of these reports. It goes against the principle of presumption of innocence (Grace and Coster Van Voorhout, 2014, p. 19) and the right to legal representation of the defendant. Other issues have also been raised regarding the lack of expertise and skill in the information gathering methodology and improper ‘chain of custody’ of evidence (Grace and Coster Van Voorhout, 2014, p. 19). In such cases, having a multidisciplinary team covering different professions of investigators, forensic experts, anthropologists and legal experts is more beneficial than an exclusive team of only legal experts and judges. Lessons can be learned from the IHFFC in this regard which provides for a diverse team of experts to form its Commissions.

Further, the commission reports are also published with public access casting a prejudice in minds of judges and other stakeholders in any future criminal proceedings. Hence, the reports of fact-finding missions are a premature pronouncement of accountability without proper adjudication.

State Consent

The 1991 UN Declaration provides for consent of States to be taken before initiating an investigation into their territory (1991 UN Declaration Annex (I) point 6). The IHFFC model is also based on consent of the parties involved in the conflict. Keeping in mind the quasi-judicial role of fact-finding missions, the basis of admittance of cases in international criminal courts and the International Court of Justice has also been state consent. However, the recent trend for fact-finding missions has been to focus more on accountability and compliance with international law disregarding the will of the States. These can also be seen as a measure to overcome the harsh reality that, in most cases, states are opposed to any form of investigation. A perpetual issue highlighted by these commissions’ reports has been limited access to large parts of Yemen (UNSC resolution S/2019/83, 2019) and denial of access by the Syrian and Myanmar government (UNHRC resolution A/HRC/39/64, 2018; UNHRC resolution A/HRC/40/70, 2019).

The Myanmar and Syrian Governments have opposed the establishment of Inquiry Commission to investigate into their internal conflicts as a breach of their territorial integrity and sovereignty (UNHRC resolution A/HRC/39/64, 2018; UNHRC resolution A/HRC/40/70, 2019). The Da’esh inquiry could be set up with unanimous agreement among UNSC members and the Iraq government because the Security Council delineated the scope of the inquiry to only Da’esh violations and not interfere with Iraq’s sovereignty and territorial integrity. Such brazen opposition to presence of commissions in their territory rules out any chances of state cooperation and harms the credibility of these reports (Kaufman, 2018, p. 18).

Way Forward – Need for Policy Development 

International fact-finding missions are a bridge between enforcement of IHL and the political will (or the lack thereof). Since 1899, the inquiry commissions have developed into various models and variations have been introduced based on the nature of the conflict, type of violations and purpose of the missions. However, all of them have few recurring characteristics which can be extracted to define the fact-finding missions. These institutions are established under international laws, conduct ad hoc fact-finding, are impartial and independent and issue non-binding reports. The mandates of these missions are broadly defined leaving room for mission member’s interpretation and the work done by these missions has differed greatly. The earlier fact-finding missions limited themselves to factual analysis and some even made clarifications on their own identity as not being a law-applying authority (van den Herik, 2014, p. 529). The recent missions, however, have shifted its focus towards legal characterisation of the facts and ensuring accountability (OHCHR Report, 2015, p. 20).

To a certain level, the ad-hoc nature of fact-finding missions is beneficial because it allows their formation and role to be tailored to specific situations. However, with the growing number of fact-finding committees being set-up in the last decade, there is a chance of fragmentation of their findings and analysis of international law and accountability. This is more so in situations where multiple inquiry commissions have been set up by competing UN bodies caught in the New York – Geneva paradigm. For instance, multiple inquires have been launched into the Syrian conflict by the UN Security Council, the UN General Assembly and the UN Human Rights Council. While the Security Council inquiry was limited to the investigation on use of chemical weapon (OPCW Press Release, 2017), the Commission of Inquiry set up by the UNHRC in 2011 and the IIIM by the UNGA in 2017 have overlapping and complementary mandates. In an event that IIIM Syria set up by UNGA comes to a contrasting analysis of the situation than the Syria Commission of Inquiry, it can put a dent on the evidentiary value of the information in a criminal proceeding in the future. The same is the case with the two Myanmar inquiries set up by UNHRC which are overlapping with the national inquiry set up by the Myanmar government (Abbott, 2019).

Other criticism raised are that they lack predictability, as they are constituted on an ad hoc basis without proper continuity or institutional memory (Aksenova and Bergsmo, 2015, p. 3). There is no clarity or uniformity on the criminal standards of proof it requires to follow. There are also other fair-trial concerns of one-sided documentation and the increasing individual criminal accountability orientation without equality of arms. Lack of state consent requirement can also question the reports of the commissions to a certain extent, especially if deployed in civil wars or international conflicts where both sides have different narratives and justifications for their actions.

Despite the various fair trial criticisms surrounding the fact-finding missions, the need remains for involvement of fact-finding missions in conflict situations. The data gathered by the fact-finding missions is based on victim and witness interviews and evaluation of communications by local NGOs and other community leaders along with international NGO or UN reports. This provides a first-hand account of the armed conflict, ground conditions of victims and the level of involvement of different parties to the conflict. Because of the procedural limitations, the ICC Prosecutor might not be able to conduct prompt investigation to collect fresh and early evidence and the evidence can be lost forever (Grace and Coster Van Voorhout, 2014, p. 20). The fact-finding missions, then, become crucial.

The issue, therefore, is of setting proper guidelines and rules of procedures to standardise the functioning of modern international fact-finding commissions. Both the Hague Conventions and the 1991 UN declaration have become outdated and do not sufficiently address the evolved orientation of the modern fact-finding missions. As early as 1968, the UN had stressed on the importance of well-defined rules of procedure for the orderly and efficient discharge of ad-hoc working bodies concerned with human rights (UNGA Resolution X, 1968, p. 12).

The rules of procedure should set down their scope, composition of the commission, standard of proof to be employed, the handling and sharing of information and sensitive data, victim and witness treatment, and should also encompass principles of fair trial, due process, equality of arms, and rights of accused amongst others. These rules of procedure should be developed keeping in mind the practical issues present in a conflict or post-conflict society of victim and witness protection, re-traumatisation of victims upon repeated questioning, sensitivity for sexual and gender-based violence etc. Apart from this, they should also incorporate the basic principles and standards of human rights and IHL that fact-finding missions need to adhere to, namely, do no harm, independence, impartiality, transparency, objectivity, confidentiality, credibility, visibility, integrity, professionalism and consistency (OHCHR Report, 2015, pp. 33-35).

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The Final Frontier: R2P and Implementation

Dr Jess Gifkins, University of Manchester, UK

Dr Jess Gifkins has worked at the University of Manchester since 2017, having previously worked at universities in the UK and in Australia. Her research is on global governance in relation to questions of peace and security. She studies decision-making practices within the United Nations Security Council, and have published research on the international response to crises in Darfur, Libya and Syria. She is also interested in debates on the responsibility to protect (R2P). 

R2P has catalysed debate and become remarkably embedded as a feature of International Relations in less than two decades. The early stages of ‘what R2P is’ from the ICISS report in 2001 through to the agreement by all states that they accept their responsibility to protect in 2005 appears linear in hindsight, although it was highly contested at the time (Bellamy 2009; Evans 2008). R2P was then reframed as three pillars by Ban Ki-Moon, which has left a lasting impact on the way R2P is understood. Once there was broad acceptance on ‘what R2P is’, debates followed over what level of support it enjoys from states (for opposing perspectives on this see Gifkins 2016; Hehir 2016). Alongside this there has been extensive debate around whether R2P is a norm, and what type of norm it is. It has been described as a “complex norm” by Jennifer Welsh (2013: 384), by Alex Bellamy as a “collection of norms” (2015: 62), and more recently by Alex Bellamy and Edward Luck as “an established international norm” (2018: 39). Beyond these foundational debates, scholarship on R2P has now shifted to the most critical issue: implementation.

The deceptively simple goal of R2P – preventing mass atrocity crimes – belies huge complexity around domestic governance, deescalating political disputes, inclusion of diverse groups, and best practices on the roles of local, national, regional, and international bodies. Luckily there is a great new book out by Alex Bellamy and Edward Luck which, ambitiously, addresses all of these challenges (2018). The book is titled ‘The Responsibility to Protect: From Promise to Practice’ and it is essential reading for anyone interested in the implementation of R2P.

I will focus on some of the key contributions of this book here. Between the two of them, Bellamy and Luck span more than a quarter of a century of research, advocacy, and diplomacy on R2P, Bellamy as Director of the Asia-Pacific Centre on R2P and consultant to the UN Office on Genocide Prevention and R2P, and Luck as the UN’s first Special Advisor on R2P and architect of the three-pillar approach. The book begins with the kind of history of R2P which can only be told from some distance. Retelling the origin story of R2P the authors highlight how the mandate of the original ICISS report swayed debates towards questions of humanitarian intervention, and that this has had a lasting, and detrimental, impact on focussing debates towards the use of force and away from atrocity prevention.

Drawing from this, the authors stress the importance of prevention, which shifts the central focus of R2P away from the United Nations and towards the practices of states and non-state actors. As Bellamy and Luck explain, “the cornerstone of prevention is the building of an inclusive, non-discriminatory form of politics capable of managing diversity constructively” (2018: 121). Throughout the book they remind us that R2P, under pillar one, applies to all states all the time, and that effective governments prevent violent conflict between groups, as a regular part of governance, whether they consider this R2P or not.

The book highlights a series of aspects of R2P where causal relationships – such as between early warning and action – are not as straightforward as it might have seemed, and they stress the need for further research in these areas. On early warning they suggest that the issue is often not simply of getting timely analysis to the right people, and that early warning is only likely to help if there is already some inclination to act. Similarly, the case study analysis in the book – spanning eight situations including historical conflicts such as Rwanda and Srebrenica and more recent conflicts in Kenya and Côte d’Ivoire – suggests that Security Council involvement and peacekeeping are not necessarily factors that will prevent mass atrocity crimes. Bellamy and Luck find that the ‘successful cases’ they consider in the book all had atrocity prevention as a core priority from local and international actors. They draw from this that “making a conscious choice would appear to make a difference”, but that while this was a necessary factor it was not sufficient on its own (2018: 171). They stress the need for further research on tools that deescalate conflicts and recommend studies that compare large numbers of cases.

In reflecting on R2P as it currently stands, Bellamy and Luck conclude that “decision-making sovereignty remains the single greatest obstacle to R2P implementation today”, by which they mean the authority that states have to decide to take action (or not), as opposed the early R2P debates where it was assumed that territorial sovereignty presented the biggest obstacle (2018: 107). A more banal barrier – but one that remains consequential – is that UN peacekeeping operations rarely have enough force enablers such as helicopters, ground transportation, and intelligence capabilities (2018: 152). For example, lack of helicopters has been an ongoing challenge for the UNAMID peacekeeping operation in Darfur, a region the size of France. For those of you looking for ways to exercise your individual responsibility to protect you could lobby your governments to better equip peacekeeping operations. Without this equipment, even when they are deployed within a conflict, peacekeepers are unable to respond to incidents in a timely manner.

For those interested in the final frontier of R2P – implementation – Bellamy and Luck’s book is essential reading. For additional reading in this critical area there is a forthcoming edited book called ‘Implementing the Responsibility to Protect’ edited by Cecilia Jacob and Martin Mennecke (2019). Keep an eye out for it when it is released in September.

The R2P Student journal – now in its third year – is an excellent model of student-led research and advocacy. If you are a student with an excellent essay of less than 6000 words do consider submitting to the journal. It’s a great way to reach a broader audience with your ideas (beyond the one or two academics who grade your essays). If you are a lecturer teaching courses connected to R2P do encourage your students to submit. It’s a great way to build skills in a new generation of researchers and to demystify the peer-review process.

References

Bellamy, Alex J. 2009. Responsibility to Protect: The Global Effort to End Mass Atrocities. Cambridge: Polity Press.

Bellamy, Alex J. 2015. The Responsibility to Protect: A Defence. Oxford: Oxford University Press.

Bellamy, Alex J. and Edward C. Luck. 2018. The Responsibility to Protect: From Promise to Practice. Cambridge: Polity Press.

Evans, Gareth. 2008. The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All. Washington D.C.: Brookings Institution Press.

Gifkins, Jess. 2016. ‘R2P in the UN Security Council: Darfur, Libya and Beyond’. Cooperation and Conflict 51(2): 148-165.

Hehir, Aidan. 2016. ‘Assessing the influence of the Responsibility to Protect on the UN Security Council during the Arab Spring’. Cooperation and Conflict 51(2): 166-183.

Jacob, Cecilia and Martin Mennecke, eds. 2019. Implementing the Responsibility to Protect. Global Politics and the Responsibility to Protect. Routledge.

Welsh, Jennifer. 2013. ‘Norm Contestation and the Responsibility to Protect’. Global Responsibility to Protect 5(4): 365-396.