Between Realpolitik and Humanitarianism: Why Is the Application of the R2P Inconsistent? A Closer Look at Libya and Venezuela

Valentina Uccioli, University College London, UK

Valentina Uccioli is a final-year student at University College London, graduating in European Social and Political Studies. Originally from Italy, her interest for international development, human rights and the Hispanic culture has brought her to Madrid (Spain), Santiago (Chile), and Granada (Spain) as visiting student. She has interned at the Organization of American States in the Dominican Republic.

Abstract 

This paper critically examines the inconsistent application of the concept of the Responsibility to Protect (R2P), focusing on the case studies of Libya in 2011 and Venezuela today. The application of R2P requires a ‘manifest failure’ of the state to protect its citizens. However, it is unclear what threshold ‘manifestly failing’ entails. I use Gallagher’s (2014) criteria to show how in both crises, the Libyan and the Venezuelan governments respectively, were ‘manifestly failing’ their responsibility. In light of this, the paper examines the geopolitical interests of the 5 permanent members (P5) of the UN Security Council (US, UK, France, Russia, China) involved in each crisis. The result shows how the lack of particular interests from China and Russia in Libya prevented them from vetoing Resolution 1973 that allowed a NATO coalition to intervene to protect Libyans. However, in Venezuela, the interests of the P5 diverge, preventing the UN Security Council from providing the country with proper relief, despite the evidence of severe human suffering. Further, this paper finds that the intervention in Libya has led to a discrediting of R2P, since, given the controversial outcome of such intervention, R2P has been linked to regime change. This increased political weight has severely reduced the chances that the UNSC will apply R2P in relation to Venezuela.

Introduction

Humanitarian interventions have been increasingly common since the end of WWII – owing to the emerging idea that mass atrocities should no longer be protected behind the shield of “national sovereignty”, and that states should act ‘in defence of common humanity’ (Annan, 1999). These notions culminated in 2001 with the formulation of the doctrine of the Responsibility to Protect (R2P), articulated by the International Commission on Intervention and State Sovereignty (ICISS). The project was aimed at creating a moral imperative for the international community to intervene when a state was failing its responsibility to protect its population from war crimes, crimes against humanity, genocide, and ethnic cleansing (“the four crimes”, as agreed at the 2005 World Summit).

The relevance of the doctrine relies on three main elements. First, it has managed to solve the controversies around the concept of humanitarian intervention, the result of a history of colonial powers invading and conquering countries of the global South on supposed humanitarian grounds. Second, it has achieved a balance between the notion of sovereignty and intervention for humanitarian purposes. It has done so by drawing inspiration from Francis Deng’s idea of ‘sovereignty as responsibility’ (1996), shifting the concept from sovereignty as a right of the state over the population to sovereignty as a duty of the state toward the population in terms of protection. Third, it has created a moral duty for the international community to intervene when faced with mass atrocities.

However, inconsistency seems to be the main trend since the global adoption of the doctrine (Hehir, 2013), formalised through the 2005 World Summit Outcome Document (WSOD). The concept has been invoked several times, but it was never used to allow a military intervention until the crisis in Libya broke out in 2011, when a United Nations Security Council (UNSC) resolution invoking R2P authorised a North Atlantic Treaty Organization (NATO) coalition to protect civilians. However, in the same year heinous crimes were being committed in Syria, but the UNSC did not vote in favour of a similar resolution despite greater atrocities being perpetrated.

In light of this, the aim of this paper is to understand why the application of R2P has been so uneven and what the contributing factors are. In order to understand how these factors interplay, I will use the Libyan and Venezuelan crises as case studies. Libya, considered ‘a textbook example of the doctrine working as it was supposed to’ (Evans, 2012), was the first time the UNSC authorised the intervention in a functioning state against its will. Venezuela is one of the gravest humanitarian crises in Latin American history and serves as a case study to show how crimes against humanity can be perpetrated even in absence of an armed conflict.

One would expect that once it has been determined that a state is failing its responsibility, the international community should feel compelled to act. Nonetheless, as we have seen in multiple cases – Syria in 2012, for instance – there are several other factors that determine whether states will intervene to stop mass atrocities. My hypothesis is that, given the current structure of the UNSC and the veto power, geopolitical interests play a determinant role in the application of R2P, and alongside with the discrediting of the doctrine, they help explain the inconsistent application of R2P.

Doctrine

The doctrine of R2P is composed of three pillars. The first one relies on the assumption that the state has a responsibility for the population’s protection. The second pillar is concerned with the international community’s responsibility to assist and engage with those states that are unable to uphold their responsibility. Finally, the third and most controversial pillar claims that ‘The international community, through the United Nations, [is] prepared to take collective action, in a timely and decisive manner, […] on a case-by-case basis [when] national authorities are manifestly failing to protect their populations’ (WSOD, 2005). However, there is no specific definition for what “manifestly failing” entails, and this is why Gallagher, in his paper “Syria and the indicators for ’manifest failing’” (2014), sets out a series of criteria to determine what is the boundary a state has to cross to show a manifest failure of its responsibility. According to Gallagher, these are: government’s intentions to neglect its responsibility, death toll, displacement of people, weapons of choice, and targeting of children, women and elderly.

I will use these criteria as variables in the comparison between the Libyan and Venezuelan crises to determine whether they meet the criteria and will argue that they do. Secondly, I will analyse the P5’s (permanent five members of the UNSC) geopolitical interests and claim that they did play a role in determining the intervention in Libya and the inaction in Venezuela. Finally, I will evaluate whether the criticism and discrediting suffered by the doctrine of R2P since the intervention in Libya is hindering states’ willingness to use the doctrine to authorise another intervention.

Context 

Libya

The Libyan crisis started on the 17th of February 2011 when protests broke out following uprisings in Tunisia and Egypt as part of the Arab Spring. Libya’s President and Revolutionary Leader Muammar Qaddafi responded with violent suppression of the demonstrations. In just six days, according to the International Federation of Human Rights, the death toll was estimated at 300 to 400 (Meikle and Black, 2011). Facing this widespread violence, regional organisations, traditionally anti-Western and sympathetic to the Middle Eastern and North African governments, ‘joined the chorus of international protest’ (Zifcak, 2012, p.5). The Organization of Islamic Cooperation (OIC), the League of Arab States (LAS) and the African Union (AU), all condemned the violence and called for immediate talks.

The statements issued by these regional organisations ‘signalled the international community’s heightened concern with respect to events in Libya and provided the necessary backing for decisive action’ (Zifcak, 2012, p.5). In fact, on February 26th, the Security Council issued Resolution 1970, which condemned the Qaddafi regime and demanded an immediate end to violence (S/RES/1970, 2011). However, the Libyan regime refused the allegation, and the further escalation of violence consequently pushed the Arab and African states to become even more vehement in their insistence for action to be taken. The League of Arab States after declaring that the Libyan authorities had lost all their legitimacy, demanded the Security Council to enforce a no-fly zone (LAS, 2011, p. 2).

Nevertheless, Qaddafi started bombing rebel-held areas and, on March 17th, the UNSC adopted the ground-breaking Resolution 1973, authorising coercive military measures to prevent a mass atrocity. This resolution allowed Member States to take ‘all necessary measures to protect civilians and civilian-populated areas under threat of attack’ (S/RES/1973, 2011), imposing a no-fly zone and authorising a coalition of states under the NATO’s umbrella to enforce a ban on flights. Two days after the resolution was adopted, the coalition started bombing the regime’s military positions. However, NATO’s strategy quickly ‘stretch[ed] the terms of Resolution 1973 to their absolute limits’ (Zifcak, 2012, p.8) and soon morphed into regime change.

Venezuela

In contrast with the Libyan crisis, Venezuela’s situation does not have a specific starting date, and does not involve an armed conflict – rather, it is the result of two decades of mismanagement, corruption and authoritarianism. President Nicolás Maduro’s predecessor, Hugo Chávez, implemented a series of populist economic policies to eradicate poverty and inequality, providing the population with access to public services. Thanks to the popularity acquired through these social programmes, the government developed into ‘semi-authoritarian and hyper-populist’ (Corrales, 2015) in order to secure control over the country’s highly profitable oil resources. However, in 2014, one year after Chávez’s death and Maduro’s election, the drop in oil prices led to Venezuela’s economic collapse, caused also by the nature of the regime that disincentivised the government from managing the oil boom efficiently (Corrales, 2015). However, instead of restoring the foundations of a thriving economy and a democratic society, Nicolás Maduro ‘chose the road to overt authoritarianism’ (Venezuelan and Ausman, 2019), leading to one of the worst socio-economic and humanitarian crises in the history of the Western Hemisphere.

In May 2019, the High Commissioner for Human Rights (HCHR), Michelle Bachelet, visited Venezuela and published a report concluding that ‘there are reasonable grounds to believe that grave violations of economic and social rights, including the rights to food and health, have been committed in Venezuela’ (2019, p.14). In terms of political rights, the regime has been undermining the rule of law and the democratic institutions in order to neutralise the opposition and repress any political opponents. The OHCHR (2019, p. 6) has ‘documented a number of cases of arbitrary detention of people for expressing opinions on social media’ and according to the NGO Foro Penal Venezolano, between 2014 and 2019, 15,045 people were detained for political reasons. In several cases, people detained are subject to various forms of torture and degrading treatments such as beating, electric shock, sexual violence and water boarding (OHCHR, 2019).

Moreover, armed ”colectivos” (paramilitary groups that support the regime) have been contributing to the maintenance of the regime’s social control through repression of demonstrations and dissent. As a consequence, the number of extrajudicial executions has risen dramatically. The NGO Observatorio Venezolano de la Violencia (2018) has reported 7,523 extrajudicial killings only in 2018. As a result of the extrajudicial killings, arbitrary detentions, and tortures carried out by Maduro’s forces, in September 2018, the situation in Venezuela has been referred to the International Criminal Court (ICC) for crimes against humanity (ICC, 2018). In February 2020, Maduro responded to such allegations by making its own referral to the ICC, arguing that such crimes were the consequence of ‘the application of unlawful coercive measures adopted unilaterally by the government of the United States of America against Venezuela’ (Maduro, 2020, author’s translation).

Criteria and their application 

Criteria

Firstly, Gallagher (2014, p. 6) argues that the government’s intentions to neglect its responsibility should be the starting point of the analysis as the state is the key actor of interest in the doctrine of R2P. Gallagher argues that the best way to assess governments’ intentions is to analyse the policies implemented and whether these are ”deliberately facilitating and/or perpetrating” mass atrocities. Secondly, Gallagher (2014, p. 8) claims that the death toll is the second-best indicator for ’manifest failing’, since the higher the number of people being killed the more the state is clearly unable or unwilling to stop the atrocities. As definition of death toll, Gallagher favours Robert Pape’s (2012, p. 43): ‘thousands have died and thousands more likely to die’, as it demonstrates that a systematic ongoing process is taking place, and there is no need for thousands of people more to die before action is undertaken.

Thirdly, the displacement of people indicator is meant to highlight how a massive flow of refugees is a sign of a state’s failure to fulfil both its internal and external responsibility to protect. Gallagher (2014, p.9) explains that R2P’s shift in the concept of responsibility implies that the state is responsible of the safety and welfare of its citizens and therefore, massive flows of refugees ‘help demonstrate that the government is failing its internal responsibility to protect the safety of its citizens as well as its external responsibility as refugees destabilise regional order’.

Fourthly, the weapons of choice is probably the most controversial indicator because, on one hand if government weaponry is being used systematically to carry out the violence, then it is a clear indicator that the government is involved. However, historically, mass atrocities have been carried out without the use of government’s heavy weaponry, therefore making this criterion less indicative to determine a state’s failure to protect its citizens. (Gallagher, 2014, p. 10). Finally, the targeting of children, women and elderly is another controversial indicator, but Gallagher (2014, p.12) argues that ‘the systematic targeting of civilians implies that a policy has been forged’, which means that ‘the government is either responsible for the plan being implemented or is incapable of preventing non-state actors from implementing this strategy’. In the next section, I turn onto the application of these criteria on both Libyan and Venezuelan crises.

Libya

The peculiarity of the situation in Libya in 2011 was that Colonel Qaddafi explicitly said what his intentions were. On a televised speech, he explicitly encouraged his supporters ‘to go out and attack the “cockroaches” (protesters) demonstrating against his rule’ (BBC, 2011) and then assured that he ‘would “cleanse Libya house by house”’ (The Economist, 2011). Since the very outbreak of the protests, Qaddafi showed no hesitation in using his security apparatus to violently suppress the demonstrations. Despite the adoption of Resolution 1970 condemning Qaddafi’s actions, the brutal leader had no intentions of stopping until ‘the country [was] purified from the unclean (protesters)’ (Foreign Affairs, 2011). Given the straightforwardness of Qaddafi’s purposes, there is no doubt on his intentions to neglect his responsibility to protect his population.

In terms of death toll, it is hard to establish a number of people killed before the NATO’s coalition intervened. However, within four months from the outbreak of the protests, it is estimated that the death toll has reached between 10,000 and 15,000 (Reuters, 2011). In conclusion, ‘there is sufficient evidence to suggest that Government forces used excessive force against demonstrators, […] leading to significant deaths and injuries’ (Human Rights Council, 2011, p.4).

Gallagher argues that a mass displacement proves that the State is failing its responsibility internally and externally, as refugees destabilise regional order. According to the UN High Commissioner Refugees (UNHCR), in the first half of 2011, 834,207 Libyans crossed the border into Tunisia (2011), a figure that in 2014 was estimated to have reached almost 1,5 million (Bradley, Fraihat and Mzioudet, 2016). Massive flows of migrants, by putting such a burden on the host country and its economy, carry the risk of creating instability, increasing the chances of dangerous instability in an already volatile region.

For what concerns the kinds of weapons used to repress dissidents, there have been reports and witnesses accounts of Qaddafi’s forces using fighter jets (Al Jazeera, 2011) on anti-government marches: ‘deafening sound of military aircraft targeting demonstrators in what opposition groups warned was a “massacre”. For the second night running, [Qaddafi] appeared to have deployed a shoot-to-kill policy to disperse the protests’ (Chrisafis, 2011). The report by the Human Rights Council (HRC, 2011, p.6) also mentions ‘mortars […] and expanding bullets, cluster, munitions and phosphorus weapons in highly populated areas’. Again, there is little doubt concerning the involvement of the Government in the violence that has been inflicted upon the Libyan populations.

Finally, in terms of intentional targeting of women, children, and elderly, various reports, including the one published by the ICC and one by the HRC (2011), have highlighted how rape had been used as a weapon to instil fear in the population and force it to flee. Physicians for Human Rights (PHR)’s 2011 report shows that at least one school was used by Qaddafi forces as detention places where women as young as 14 years old were repeatedly raped. Moreover, the report also mentions eyewitnesses recounting Qaddafi’s security forces forcibly detaining 107 civilians and using them as human shields; other eyewitnesses reporting that the Government forces had ‘demolished a home for the elderly and abducted its 36 resident disabled, elderly, and homeless civilians’.

In conclusion, the Qaddafi regime was manifestly failing to protect its populations from mass atrocities, and it has triggered international action. In the next section I will assess whether the same can be said for Venezuela. However different the nature of the crisis may seem, ‘the conditions Venezuelans face daily are not much different than those in active war zone’ (Bahar and Dooley, 2019).

Venezuela

While Qaddafi was more explicit regarding his intentions of repressing dissidents and using violence, Maduro has nonetheless caused a similar extent of human suffering. Firstly, in order to falsely demonstrate that there is no humanitarian crisis, the government has begun censoring data regarding the conditions under which Venezuelans live and a Human Rights Watch/Johns Hopkins 2019 report explained that, by doing so, the authorities have exacerbated the crisis and that they are ‘responsible for needless loss of life that their denial and destruction have inflicted on Venezuelan people’. Moreover, the OHCHR also provided an account concerning violence, repression and extrajudicial executions. First of all, it details the excessive use of force from security forces during some of the anti-government protests, with the deliberate aim of infusing fear and to discourage demonstrators. Secondly, the HCHR has reported that the security forces in charge of combating drug trafficking and crime, the FAES (in the Spanish acronym, Fuerzas de Acciones Especiales) are responsible for thousands of killings that might amount to extrajudicial executions. The OHCHR (2019, p.10) is concerned that the regime ‘may be using FAES and other security forces to instil fear in the population and to maintain social control’. As a result, the extrajudicial executions and the arbitrary detentions are clear indicators of the intentionality of Maduro’s policies.

Regarding the death toll, as we have seen, the repression in Venezuela has been systematic since at least 2014, when the Maduro regime started evolving into an authoritarian regime and started repressing dissidents. However, probably the most relevant data for the death toll is that regarding FAES’ raids in poor neighbourhoods which are considered to represent almost 8,000 extrajudicial executions (OHCHR, 2019). According to Roberto Briceno-León, director of the NGO Observatorio Venezolano de la Violencia, the total impunity with the FAES shows that the Government is proud of what is being done, and he believes that this represents a state policy of extermination (Olmo, 2019). The deliberateness of FAES’ violent killings and the impunity from the Government prove that a systematic process of unlawful and inhumane killing has been taking place.

In terms of displacement of people, as a result of the regime violating basic rights such as that of health, food, life and safety, according to the UNHCR (2019) currently there are more than 4.7 million Venezuelan refugees. The burden of the crisis has fallen on neighbouring countries, particularly Colombia, Ecuador, Peru ́, and Brazil, creating a considerable risk of instability. In conclusion, by provoking such an outflow of Venezuelans, Maduro is putting his citizens in further danger, while placing the burden on neighbouring countries, pressuring their weak economies, and consequently increasing the risk of instability throughout the whole region.

As already said, in contrast with Libya, the conflict in Venezuela is of a non-armed nature. This does not mean that the extent of human suffering is smaller, but it makes it more problematic to analyse whether the crisis meets the criterion regarding the kind of weapons used. In Venezuela, the Maduro regime is starving its people to death, it is not providing them with the basic needs like healthcare, which has led to a massive spread of once-eradicated diseases that are increasing the death toll exponentially (OHCHR, 2019). In contrast with armed crises like Libya, the Maduro regime is ultimately achieving atrocity crimes as well, but without resorting to weapons. However, given the lack of heavy weaponry involved in the conflict, it is hard to argue whether this crisis meets the criterion regarding the kinds of weapons involved.

The intentional targeting of vulnerable populations is another problematic criterion. The extrajudicial killings carried out by the FAES are indiscriminate in terms of who the targets are, since it seems that the common factor is political opinion. However, the interesting element concerning this criterion is the mention that Gallagher makes to a “third dimension”, drawing from a Save the Children report of March 2013. The report exposes how children are particularly vulnerable to the spread of disease in conflict zones, where it is juxtaposed with the collapse of the healthcare system. This is particularly true for the case of Venezuela, where children are subject to an unprecedented spread of diseases. Alongside with malnutrition, diseases have produced an increase by 65% in infant mortality rate, only in 2016 (PROVEA, 2016). Similarly, in 2016, the maternal mortality rate has increased by 30% (PROVEA, 2016) because of the lack of prenatal and maternal care, and contraceptives, which leads to homemade abortions that put women’s lives in great danger. Furthermore, the vulnerability of women goes beyond Venezuelan borders since, when forced to flee, women undertake dangerous journeys that subject them to risks such as sexual exploitation and trafficking, abuse and violence (Human Rights Watch and Johns Hopkins, 2019). In conclusion, a state is not targeting vulnerable populations only when heavy weaponry is involved, but also when it is failing to provide access to basic medical care, violating the right to health.

Geopolitical interests

After analysing the crisis in Venezuela through Gallagher’s criteria, one could argue that R2P should be applied and the international community take action. However, these criteria are fundamental but not sufficient to determine a multilateral action under Chapter VII of the UN Charter. This is because any international coercive action must be approved by the UNSC. This requirement represents a double-edged sword since, on one hand, it is pivotal in it prevents powerful states from undertaking illegitimate unilateral actions. On the other hand, however, given the current structure of the UNSC, it makes the decision to halt mass atrocities susceptible to the interests of the P5 and their veto power. While it worked in Libya, where there were no major clashing interests, regarding Venezuela the opposite is true.

On general terms, the P5 have differing ideological positions and are to be understood along with their geopolitical interests. While, on one hand, the US, UK, and France have historically always placed great emphasis on humanitarianism, human rights, and democracy, China and Russia have had different approaches. It is argued that the origins of the modern international humanitarian system lie in the Western/European experiences of war (Davey, et al., 2013, p. 1). Indeed, it has even been criticised that human rights are a Western concept and there is a ‘false universalism’ that ‘obscure[s] Western civilizational hegemony’ (Falk, 1997, p. 8). However, the West’s position on human rights and humanitarianism has generally been consistent in terms of support for these regimes. In terms of national sovereignty, while defending such concept, Western states have increasingly defended the idea that, in case of gross violations of human rights, an intervention can be legitimate because the protection of civilians is prioritised – as it was the case with the NATO intervention in Kosovo, 1999.

On the other hand, China and Russia maintain a ‘restrictionist view of the Charter, which sees sovereignty as ranking higher than human rights’ (Kuhrt, 2014, p. 99). In fact, these concepts of “humanitarian intervention” and “limited sovereignty” were considered “unacceptable” by Russia (Kuhrt, 2014, p. 98). Kuhrt (2014, p. 98) relates Russia’s reticence to these concepts to the fall of the Soviet Union, which made Russia ‘far more sensitive to the idea that the sovereignty norm might be eroded’. Similarly to Russia, China has ‘regularly spoken out against interference on human rights grounds in its internal affairs’ (Sceats and Breslin, 2012, p. 1). Moreover, after the widespread condemnation of the Tiananmen Square events in 1989, ‘it became a central plank of [China’s] general agenda within the UN to promote ultra-statist conceptions of sovereignty and the principle of non-interference’ (Sceats and Breslin, 2012, p. 6). China’s strong position on national sovereignty is evident also in its frequent invocation of the principles of non-intervention or non-interference in domestic affairs (Sceats and Breslin, 2012). More generally, ‘for both Beijing and Moscow, safeguarding domestic political security is a predominant concern. They strongly opposed external interventions that could lead to regime change and state fragmentation’ (Chen and Yin, 2020, p. 18).

Libya

Russia’s neutral position in the decision to adopt Resolution 1973 in Libya was strategic. North Africa had been of secondary relevance in Russia’s foreign policy, limited to arms and energy issues. Kaczmarski (2011) explains the reasons behind Russia’s position as twofold. Firstly, with no crucial interests in Libya, Russia was more focused on maintaining good relations with the Arab countries who all condemned Qaddafi. Hehir (2013), similarly, argues that the endorsement of a no-fly zone by the LAS was key to the decision of Russia to abstain in Resolution 1973. Secondly, Kaczmarski interprets Russia’s decision as aimed at preserving the growing relations with the West and by not vetoing the resolution, Russia ‘gave very clear political support to France’ (2011). While agreeing with Kaczmarski, Gutterman (2011) also argues that vetoing the resolution would have harmed its prospects of preserving an economic foothold in the country. Thus, Russia’s decision was a low-cost action that would improve its position and involvement in the multilateral system, while not harming any national interests.

China’s relations with Libya were already problematic from before the Arab Spring, since Libyan Foreign Minister in 2009 ‘accused China of exploiting Africa’s resources and people, and condemned its behaviour [. . . ] as neo-colonialism’ (Evron, 2013, p.81). Moreover, similarly to Russia, China attached great importance to the Arab States’ positions in the conflict since maintaining good relations with them was more crucial in China’s national interest (Evron, 2013; Paal, 2011; Hehir, 2013). This is even more so given that China had limited investments in the country. Libya was the fifth country in Africa for Chinese investments, and ‘most Chinese enterprises in Libya had no direct investment in the country’ (Junbo and Méndez, 2015, pp.4-5). In conclusion, similarly to Russia, it was more strategic for China to abstain rather than vetoing Resolution 1973, so as to maintain good relationships with the Arab countries without affecting national interests.

For the United States, the crisis in Libya represented a particular opportunity where its national interests converged with its humanitarian values. Firstly, President Obama claimed US’s responsibility to prevent mass atrocities (Blomdahl, 2018). Second, there was a considerable risk that escalating violence between the Government and the rebels might sow the seeds of a favourable environment for fundamentalist and extremist militancy. In conclusion, the US had little to lose in getting involved while having the chance of promoting ‘a new form of humanitarian intervention, […] they had been sketching out for nearly a decade’ (Blomdahl, 2018, p.4).

France’s interests in Libya were twofold. First, in terms of economic resources, France imported from Libya 15% of its oil (Davidson, 2013). Second, security issues were of crucial importance given the proximity of Libyan shores to France and Europe, thus threatening France with a massive flow of refugees that could heighten security and terroristic risks in the continent. In conclusion, ‘maintaining access to Libyan oil and minimizing the terrorist threat from Libya were important contributing factors in the Sarkozy government’s decision’ (Davidson, 2013, p.319)

For the United Kingdom, the interests involved in the Libyan crisis were similar to France’s, but they assumed a more “humanitarian” stance. In fact, several journalists reported that UK Prime Minister David Cameron’s decision was influenced by the regret of the West’s failure to protect civilians in Srebrenica in 1995 (Blitz, 2011; Stephens, 2011). Moreover, Cameron feared that if Qaddafi was not ousted he would ‘go back to being the recruiting sergeant for terror he was in the 1980s’ (Blitz, 2011). To conclude, the UK Government was determined to stop the mass slaughter and violations of human rights in Libya both for humanitarian reasons and for security reasons, given the fear that was violence to increase in Libya, a new wave of terrorism might have threatened Europe.

Venezuela

The crisis in Venezuela, given its geographical location and its oil reserves, has attracted a variety of actors. According to John E. Herbst and Jason Marczak (2019, p.1) ‘[e]xternal actors are using Venezuela as a battleground for their own selfish national interests, bolstering the corrupt and faltering Maduro regime’.

While pursuing advantageous economic and military deals, Russia’s interest in Venezuela is mainly political. Putin sees Venezuela as a partner in ‘constructing a new multipolar, anti-US world’, a point of leverage in the US’s backyard (Rouvinski, 2019, p.1). In fact, the primary value for Russia is Venezuela’s geographical proximity to the US. Moreover, Putin is exploiting the Venezuelan crisis to show that Russia’s influence goes beyond its natural area of interest, namely, Asia or the Middle East, and to ‘portray Russia’s return as a global power’ (Rouvinski, 2019, p.1). In order to strengthen its position, at the beginning of 2019, Moscow provided Maduro with S-300 systems with two geostrategic goals. First, it was supposed to deter any US military intervention in Venezuela. Second, the equipment ‘came with Russian “experts” (soldiers), who, along with the thousands of Cuban intelligence personnel in the country, could provide security for Maduro’ (Herbst and Marczak, 2019, p. 5). Moreover, were Putin to lose this bet, Venezuela would become ‘a symbol of one of Putin’s greatest failures in the international arena’ (Rouvinski, 2019, p.17). These reasons help understand why ‘there is no doubt that Russia will use its veto power to block any resolution [in the Security Council] that would harm Maduro’ (Jeifets, 2018).

Venezuela’s relations with China date back to two decades ago when Ch ́avez decided to diversify away from the country’s export dependence on the US, with the aim of ‘counterbalance[ing] US influence in Latin America’ (Kaplan and Penfold, 2019, p.15), and saw China as a crucial partner. As Pina (2019) explains, China views ‘the oil-rich socialist country as a significant trading partner and geopolitical ally in its main political and economic rival US’ backyard’. Moreover, “south-south” cooperation is one of China’s foreign policy’s central pillars and Beijing ‘does not want to risk its reputation as a leading partner and trustworthy investor in the global south by siding with a US-backed opposition group and supporting its attempt to unlawfully topple the legitimate government of a sovereign country’ (Pina, 2019). Given the deep financial investments in the country and the geopolitical value it places on the country, China is standing with Russia in the Security Council and vetoing any attempt to adopt resolutions that may alter the situation in Venezuela.

The United States is deeply involved in the crisis and the Trump administration has been repeatedly pushing for international involvement in the crisis – still considering military intervention ‘an option’ (CBS News, 2019). While the US’s desire to restore democracy and protect human rights might be part of the equation, it would be na ̈ıve to ignore its interests in the Latin American country. First of all, Venezuela has the largest oil reserves in the world and both Chavez and Maduro have tried to diversify Venezuela’s oil exports to limit the country’s dependence on the US, therefore threatening key US’ economic interests. Secondly, Chávez and Maduro have always openly attacked the US, with the aim of fostering political integration and anti-imperialism (Kozloff, 2007). In conclusion, the US has considerable interests in pushing for new elections in Venezuela since the current situation represents a threat to its core economic and ideological interests.

In contrast with Russia, China and the US, the UK and France, have no major interests in Venezuela. In addition, given the long history of support for humanitarian values and human rights, they have participated, as part of the European Union bloc, in efforts to promote a political transition in Venezuela and insist on the need to call free and fair elections to restore democracy in the country (Doward, 2019).

R2P discrediting

Resolution 1973 that authorised the NATO coalition in Libya had authorised Member States ‘to take all necessary measures [. . . ] to protect civilians and civilian populated areas under threat of attack’ (S/RES/1973, 2011). While it could be said that Qaddafi was the main perpetrator of the mass atrocities in Libya, it has been widely argued that his death represented an attempt at regime change that exceeded the mandate of the Resolution. A considerable number of UN ambassadors argued that the NATO-led coalition was no longer acting in defence of the population at risk but pursuing the overthrow of Qaddafi. This idea was further encouraged by the op-ed jointly written by the then leaders of the US, the UK, and France – Barack Obama, David Cameron, and Nicholas Sarkozy, in which they argued that NATO was not pursuing regime change, but that it was ‘impossible to imagine a future Libyan government with Qaddafi in power’ (Obama, Sarkozy and Cameron, 2011). Shortly after, various states began questioning the legitimacy of the action and vocally arguing that such actions were exceeding the mandate given by Resolution 1973.

Considering that Russia and China were not supportive of the intervention in Libya, rather, they were focused on preserving their own interests, once the intervention morphed into regime change, they became extremely vocal against it. They insisted on the idea that ‘there was no way in which the relevant resolution could have permitted the extension of the conflict beyond the protection of civilians and towards the objective of regime change’ (Zifcak, 2012, p. 11). This “mission creep” has severely undermined the global consensus around R2P. As Nuruzzman (2013, p.66), ‘[t]he hidden policy of regime change in Libya has, in fact, killed the R2P doctrine’.

In other words, the failure of the NATO-coalition to remain within the Resolution’s boundaries has severely undermined the global support of the doctrine. As a result, it is argued that ‘the campaign in Libya has done grave, possibly even irreparable, damage to R2P’ (Rieff, 2011). Rieff further argues that it is highly unlikely that interventions under R2P will ‘get sanction from the U.N. in the foreseeable future’ (Rieff, 2011). For instance, scholars have argued that ‘If Libya happened again today, China would not abstain’ (quoted in Sceats and Breslin, 2012, p. 49). The intervention in Libya inevitably linked R2P to regime change, increasing the political risk of employing such a principle. Consequently, the result has been that even if the members of the UNSC had agreed on the need to protect civilians in Venezuela, it became highly unlikely they would apply R2P, given its considerable political weight. It could be argued that Venezuelans are not safe unless Maduro is ousted – and wary of the outcome of the intervention in Libya, the UNSC would be extremely reticent to apply the principle of R2P.

Conclusion

The aim of this paper was to understand why the doctrine of R2P, particularly Pillar III, has been applied inconsistently. After analysing the contexts of the Libyan and Venezuelan crises, this paper examined whether these crises met Gallagher’s criteria for ‘manifestly failing’. In the second section, the paper first described the differing positions of the P5 on issues such as sovereignty and human rights. Secondly, reflecting these positions, I analysed what role the geopolitical interests of the P5 have played in each crisis and whether they have determined the outcome. I find that the crisis in Libya represented no threat to Russian nor Chinese interests and therefore they were both refrained from vetoing UNSC resolutions; while the US’s, UK’s, and France’s interests converged with the need to protect Libyans. In this way, the UNSC was able to authorise military intervention to protect civilians. However, the same cannot be said for Venezuela, which has become a playground for East-West geostrategic interests and rivalries. The great relevance both Russia and China put on Venezuela in economic and political terms has prevented the international community from intervening to provide Venezuelans with proper relief. I thus find that geostrategic considerations do have influence on R2P’s application, affecting its consistency. Finally, another element that further explains such inconsistency is the backlash that NATO intervention in Libya had on the consensus around R2P, associating it to the concept of regime change, therefore fostering countries’ reticence to apply it. This paper argues that, as a consequence of this political weight, even if the P5 had converging interests in Venezuela as they did in Libya, it would be highly unlikely they would apply R2P. In conclusion, there are various factors that interact to determine the irregular application of R2P and, while the geopolitical interests are probably the key factor, one cannot overlook how the association of the doctrine to regime change has influenced this inconsistency.

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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).

Bibliography

Abbott, K. 2019. Myanmar: documentation practices may raise challenges for accountability. OpinioJuris. Available from: http://opiniojuris.org/2019/01/24/myanmar-documentation-practices-may-raise-challenges-for-accountability/.

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India’s stand on the Responsibility to Protect: The UN Security Council and the Libya crisis

By Heena Makhija 

Heena Makhija is a student at Centre for International Politics, Organizations and Disarmament at Jawaharlal Nehru University in Delhi, undertaking an MPhil in International Organizations.

Jawaharlal Nehru’s idealism and commitment to the maintenance of international peace and security has remarkably influenced India’s response towards international conflicts. In the Security Council, in its capacity as a non-permanent member, India has been a supporter of peaceful and responsible policy decisions for conflict resolution. In the past few decades, international intervention in conflict zones for the protection of civilians from war crimes on account of the failure of domestic state machinery has been a matter of debate in mainstream academia. Though India has been one of the largest contributors to the UN Peacekeeping Missions, its approach to the idea of ‘Responsibility to Protect’ has been cautious.

This paper seeks to analyse India’s approach to the principle of ‘Responsibility to Protect’, especially with regard to where it stands in the UN Security Council discussions. The first section traces India’s evolving stance on the principle of ‘Responsibility to Protect’. The second section analyses India’s stance on the use of R2P in Libya and its reasons for abstaining in the UN Security Council voting on the issue of intervention. The third section seeks to evaluate India’s response and strategy after the military intervention in Libya. The concluding section attempts to bring out the lessons India drew from the Libyan experience and its influence on India’s present-day approach to R2P.

Humanitarian intervention, R2P and India 

Though the idea of humanitarian intervention in conflict zones has existed for decades, its conceptualization under the aegis of ‘Responsibility to Protect’ is fairly new. India, given its experience with colonialism, inherited a divided, exploited and dependent society that was vulnerable to internal dissension and external interference (Ayoob, 2004, p. 99). Therefore, India accorded utmost priority to the principles of democracy and sovereignty whilst dealing with international actors. India’s apprehensions were triggered immediately after independence, as when it referred the issue of Jammu and Kashmir to the UN Security Council, instead of a fruitful resolution, Cold War politics shadowed the UN leading to a deadlock. In the light of the Kashmir issue, Indian leadership began to resist approaching multilateral institutions to intervene in conflict areas fearing a threat to its state sovereignty (Ganguly, 2016, p. 363). India’s response to the concept of international intervention in states’ affairs has been fluctuating over the years. In the 1960s, while India was quick to defend its intervention in Goa to drive out the Portuguese by force, on the other hand, it was highly critical of the Anglo-French intervention in Egypt over the issue of the Suez Canal. At the United Nations, India actively caucused with Asian and African nations for supporting the resolution demanding compliance with the UN resolutions and a ceasefire (Nayudu, 2016). Following an idealist and moral approach, while India continued to criticize the Western bloc at international forums for its interventionist policies, India itself came under fire for its semi-interventionist conduct in its immediate neighbourhood. When the domestic turmoil in East Pakistan led to a huge influx of refugees, India argued that Pakistan’s internal conflict had become a grave concern for India’s security (Bass, 2015, p. 232). Indira Gandhi decided to intervene militarily in view of the failure of diplomatic efforts and Bangladesh emerged as an independent nation in 1971. India justified its interventionist role on the grounds of self-defence as Pakistan had initiated the war (Ganguly, 2016, p. 364). India’s armed involvement in East Pakistan in 1971 is viewed as one of the world’s foremost successful attempts at humanitarian intervention against genocide (Mehta, 2011, p. 100). Side-lining its ethical commitment to state sovereignty, India also briefly intervened in Sri Lanka’s civil war between the armed forces and the Liberation Tigers of Tamil Eelam (LTTE) in 1987. Thus, despite its strong commitment to the principle of upholding state sovereignty, India’s stand was based on its own national interest and on the merit of each case. 

However, in the 1990s, several incidents of mass atrocities on civilian populations emerged. As evidence of heinous crimes against unarmed populations started surfacing in the international arena, demands for humanitarian intervention increased. No principled approach or international law existed for handling cases such as Somalia, Rwanda, and Kosovo. Disagreements emerged on whether the international community exercised a right to intervene. If yes, then how should it be carried out and under whose authority? (Evans & Sahnoun, 2002). The ‘Responsibility to Protect’, or the R2P norm, emerged from the International Commission on Intervention and State Sovereignty (ICISS) report in 2001 and was codified in the World Summit Outcome document in 2005 (Bloomfield, 2015). The UN Secretary General’s 2009 Report ‘Implementing the Responsibility to Protect’ placed the three pillars of the R2P principle in the public discourse. Pillar One focused on the protection responsibilities of the state, Pillar Two dealt with international assistance and capacity-building, and Pillar Three enshrined timely and decisive response from the international community (Assembly, 2009). However, international intervention in domestic conflicts for the protection of civilians from genocide, war crimes, and ethnic conflict has been under normative criticism and contestation since its very inception (Mahdavi, 2015, pp. 8-9). 

India approached the principle of R2P with suspicion and caution. Given the international climate that favoured a decisive policy to curtail domestic atrocities, India did not resist the first two pillars of R2P as they were in coherence with India’s foreign policy. India favoured a ‘soft’ approach where policy-makers supported measures such as diplomatic missions and unarmed ceasefire monitoring missions (Bloomfield, 2015, p. 31). However, India rendered strong opposition to the third pillar of R2P, describing it as an unnecessary interference in domestic concerns of a state and a tool of powerful nations to topple over existing regimes and threaten the state sovereignty. Nirupam Sen, Permanent Representative of India to the United Nations until 2009, openly voiced his criticism of the R2P principle in UN meetings and portrayed it as military humanism and re-emergence of humanitarian intervention in a new facet (Teitt, 2012, p. 200).

India’s approach as a UN Security Council non-permanent member and the Libya crisis 

In 2009, Hardeep Singh Puri, the new Permanent Representative of India to the United Nations, took charge and continued to adopt a pragmatic approach to R2P. However, maintaining its firm stand on treating intervention as the last resort, India did accept the peacekeeping principle of PoC (Protection of Civilians) while stressing its preference for Pillar One and Pillar Two of R2P (Bloomfield, 2015, pp. 33-34). India was running for non-permanent membership of the UN Security Council in the forthcoming year, thus flexibility and a pragmatic stance was in coherence with its aspirations. India was selected as a non-permanent member of the Security Council in 2010 with a record result of 187 affirmatives out of 191 votes (Krause, 2016, pp. 24-25).  India entered the Security Council in 2011 as a non-permanent member after a gap of 18 years. Undoubtedly, India wanted to prove itself to be a worthy contender for a permanent seat at the horseshoe table. Adding ‘value’ to the proceedings by acting as an objective bridge between member states and active participation was a necessary medium to strengthen its claim (Mishra and Kumar, 2013). 

At the beginning of 2011, the escalating crisis in Libya was one of the crucial challenges encountered by the Security Council. Rebellion groups under the umbrella of ‘Arab Spring’ that had engulfed the Middle East revolted against Muammar Gaddafi, leading to a civil war in the country (Shrivastav, 2011, p. 3) The matter was brought to UN Security Council’s attention by a faction of revolting Libyan officials as reports of gross violations of human rights and a crackdown on civilians began surfacing. Gaddafi already had a turbulent history as sanctions were imposed over his role in the 1988 terrorist attack on the Pan American Flight 103 (Puri, 2016, pp. 59-60). The public opinion was full of rage and contempt for the Libyan leader and there was ample evidence that mass atrocities were being inflicted on the civilians by the state. 

Resolution 1970 was passed by the UN Security Council on 26th February 2011 after a marathon 12-hour session (Puri, 2016, p. 69). The resolution called for an end to violence in Libya with immediate effect, an arms embargo, and referred the conflict to the International Criminal Court (ICC). India, along with China, Brazil, and South Africa had their reservations about the ICC referral and favoured a calibrated approach of first threatening with a referral in a future date (Puri, 2016, p. 71). Despite the initial reservations, India went ahead and voted in favour of resolution 1970. India’s affirmative stand can be attributed to two major reasons. First, India was at the table after a long hiatus and abstaining or voting negatively on an issue of heinous crimes against civilians while international community including African and Non-Aligned Movement nations favoured strict action, it would have served as a setback for India’s aspirations. Secondly, closer ties with the United States might have had a role to play in shaping India’s decision (Ganguly, 2016).  

In March 2011, the UN Under-Secretary-General stated that the Gaddafi Regime was using heavy artillery and air and naval assets against civilians and rebels (Puri, 2016, p. 81). This marked the onset of an official intervention in Libya through Resolution 1973 and the US encouraged promulgating Chapter VII of the UN charter for authorizing the use of force. Resolution 1973 was adopted by the Security Council on 17th March 2011, with 5 members – Brazil, Russia, China, India, and Germany – abstaining (Puri, 2016, p. 90). Resolution 1973 was one of the most debated and controversial decisions in the history of R2P (Bellamy, 2011). India, though voted in favour of Resolution 1970, abstained from voting on Resolution 1973. In order to understand the reasons behind India abstention, it is necessary to understand the contents of Resolution 1973. As stated in the official press release of the UN Security Council (2011),

Demanding an immediate ceasefire in Libya, including an end to the current attacks against civilians, which it said might constitute “crimes against humanity”, the Security Council this evening imposed a ban on all flights in the country’s airspace — a no-fly zone — and tightened sanctions on the Gaddafi regime and its supporters. Adopting resolution 1973 (2011) by a vote of 10 in favour to none against, with 5 abstentions (Brazil, China, Germany, India, Russian Federation), the Council authorized Member States, acting nationally or through regional organizations or arrangements, to take all necessary measures to protect civilians under threat of attack in the country, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory — requesting them to immediately inform the Secretary-General of such measures.

As Indian representative Hardeep Singh Puri pointed out, India was highly skeptical of the ground realities in Libya and in absence of official clarification it did not want to take any decision in haste. Moreover, the mandate of the UN and ceasefire procedures to be implemented were vague and threatened the sovereignty of Libyans. India was also deeply concerned about the safety of its nationals in Libya, as only a third of them had been evacuated (Puri, 2016, p. 85). Internationally, India did not want to support a resolution that might lead to a regime change and escalate the crisis in absence of any certainty on how a military intervention would shape. Domestic concerns also played a pivotal role in shaping India’s stand. Supporting a precedent that validates intervention might have backfired given the conflicts and secessionist tendencies within India. Also, aiding the Western democracies to intervene in a Muslim state carried a threat of backlash from the Muslim population within India (Ganguly, 2016). Since there was no clarity about the end goals of this operation, it would have been difficult for the Indian government to justify its support for this resolution to its coalition partners and domestic constituencies (Shrivastav, 2011). 

Despite numerous justifications for abstaining on Resolution 1973, some critics consider it to be a lost opportunity where India could have supported the Western powers and substantiated its claim of being a compelling democratic rising power in the international fora (Ganguly, 2016, p. 369). India is also criticized for ‘inaction’ and its unwillingness to take strong decisions and act as a responsible power (Pillai, 2012). However, the critics must take into consideration that not following the West on a resolution that was against India’s ethical foreign policy approach as well as its national interest, India exercised its autonomy in foreign affairs. Moreover, India did vote in favour of Resolution 1970, thus its commitment to the protection of civilians in Libya cannot be questioned (Shrivastav, 2011). Though India had serious concerns about the procedures to be adopted under Resolution 1973, it still abstained from voting rather than putting in a negative vote, thus paving the way for the passing of resolution without acting as a hindrance. A liberal approach of supporting democracy and protection of human rights guided India’s policy as India’s abstention achieved a middle ground – it did not degrade its relations with the West or the Arab world (Bloomfield, 2015, p. 41).

India’s response post-Libya intervention

As soon as Resolution 1973 passed, NATO warplanes surrounded Libyan airspace dropping their lethal arsenal. Indiscriminate bombing and full-scale military intervention made it very clear to the international community that the resolution aimed at regime change rather than putting an end to the cycle of violence.  Resolution 1973 had five major goals – a ceasefire with the mediation of the African Union, use of all necessary means to protect civilians, a no-fly zone, an arms embargo, and targeted sanctions. Notably, with the passing of the resolution, members of NATO side-lined the African Union and the sole focus was on the use of all necessary means by bombing Libya (Puri, 2016, p. 92). Within a month, it became clear to the Indian policymakers that NATO was pursuing a regime change in Libya (Puri, 2016, p. 103).

India was highly critical of the way the operation was unfolding in Libya. In the subsequent Security Council meetings, Indian UN Representative Hardeep Singh Puri was actively denouncing the manner in which Resolution 1973 was being implemented. In a sharp exchange of words in April 2011, he pointed to the Council that the reports showcased arming of the rebel groups by the NATO forces. It was also increasingly clear that the goal of regime change was getting the better of all objectives, but that was neither mentioned per se in Resolution 1973 nor was it approved by the Security Council (Puri, 2016, p. 102). He concluded that Libya gave a bad name and raised serious questions about the credibility of the principle of R2P. Violation of human rights did not appear to be the reason for intervention in the state affairs, rather deeper strategic issues such as oil fields and incompatible leadership emerged as motivating factors for the operation (Khandekar, 2015, p. 121). NATO’s military action in Libya followed the official passage of Resolution 1973, setting a dangerous example on how the official channels were used to authorize an operation that did not end the violence or civil strife in Libya rather it sowed seeds for a turbulent future in the region.

As the Libyan crisis broke out, though India was voicing its opposition, it came under scrutiny within India from media, public, and the opposition who actively analysed India’s stand on the matter. Indian media was quick to point out the direct impact of Libyan crisis on the oil prices and the plight of Indians who were still stranded in the war-torn country (Bloomfield, 2015, p. 9). Policymakers extensively questioned India’s abstention on the resolution. Left-oriented parties with their anti-Western rhetoric saw India’s inability to vote against the resolution as its failure to give structure to its anti-imperial foreign policy ideals (Chishti, 2011). On the other hand, realists pointed out that India might not be willing to intervene directly in the internal affairs of states but its support for the resolution that might stabilize the region would have served its long-term interests in international forums (Rajamohan, 2011). 

It was evidently clear for India that the UN Security Council resolution 1973 was not implemented and formulated in a way that was in sync with the noble cause of R2P. As a policy approach, the Libyan experience brought back India’s serious concerns with Pillar Three of R2P. India did try to mould its position by voting in favour of Resolution 1970, but the aftermath of NATO’s intervention in Libya made India reiterate its initial hostility towards Pillar Three. India’s long-standing scepticism about the Western powers and the limited ability of a military intervention to solve humanitarian crisis were validated by the Libyan experience (Krause, 2016). 

India and the future of R2P

Resolution 1973 advanced the debate on the principle and implementation of R2P. In hindsight, it is possible that the Security Council might not have authorized the resolution had it known that it would be used in a selective manner for military action in Libya (Puri, 2016, p. 103). India’s fears were proven right with the breakdown of the Libyan state after the intervention. During its two-year stint as the non-permanent member of the Security Council, India maintained a calculated and pragmatic approach towards intra-state conflicts. With respect to R2P, India’s lessons learned from Libya’s experience were clearly visible in its approach to the crisis in Syria. It was very evident that critics of the resolution 1973 were not going to throw Syria down the same road. In October 2011, when a resolution to condemn the actions of Bashar-al-Assad in Syria was put for vote in the UN Security Council, China and Russia used their veto and India abstained with a view to prevent any further Western intervention. India was not in denial of the disturbing situation in Syria but wanted to pursue a calibrated approach. It is evident from the fact that under the presidency of India, the UN Security Council issued an initial statement on Syria that condemned the use of force on the civilians by the authorities (Puri, 2016). 

Towards the end of its term, India did vote in favour of putting non-military sanctions against the Assad regime, but Russia and China continue to use their vetoes to block the resolutions. Overall, during its term in the UN Security Council, India depicted active support for the first two pillars of R2P. It never voted in negative and fluctuated between abstaining and voting in favour of the resolutions. India was clear about not endorsing any narrowly worded document that might be twisted by the Western nations as it happened in Libya (Bloomfield, 2015). At the beginning of 2013, with the rise of the Islamic State as the situation in the Middle East took a critical turn, it became evidently clear that the means to implement R2P had not succeeded in Libya. 

If we analyse India’s role in the Libyan conflict and larger debate on R2P, it had been wise on India’s part to remain on the side-lines. Libya was a test case and its outcome rightly hardened India’s aversive stance to the idea of military intervention in conflict zones. It also paved way for a renewed debate on the concept of R2P. India argued that responsibility does not end with a military response. When the principle is applied, it must respect the fundamental aspects of the UN Charter including the sovereignty and integrity of member states (Mishra and Kumar, 2013). Thus, India supported the Brazilian proposal for the ‘Responsibility while Protecting’ (Krause, 2016, p. 35). Protection of civilians from autocratic and abusive regimes is undoubtedly essential, but it should not compromise on the sovereignty and territorial integrity of the state.  

To conclude, India’s initial critical stance towards the principle of R2P softened in the prelude to its membership of the UN Security Council in 2011. Whether it was the international pressure or the desire to take a strong stand, India though maintained its practical demeanour, it did flirt with the idea and partially supported Pillar Three of the R2P. The disastrous outcomes of the NATO intervention in Libya where regime change and Western aspirations overshadowed the positive dimensions that R2P aimed to achieve, brought India back to its calculated and cautious approach. In the post-2012 scenario, India has time and again stressed the anomalies in the system of international intervention aspect of R2P. As a post-colonial state, India, especially after the Libyan experience, finds it difficult to endorse Western interventionist policies. Though India asserts the highest value to the territorial integrity of a state, India’s stand on R2P cannot be consistent and might fluctuate on the case to case basis in the future, keeping in mind its national interest and aspirations (Ganguly, 2016).

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Bellamy, A., 2011. The Responsibility to Protect: Libya and Beyond. s.l.:s.n.

Bloomfield, A., 2015. ‘India and the Libyan Crisis: Flirting with the Responsibility to Protect, Retreating to the Sovereignty Norm’, Contemporary Security Policy, 36(1), pp. 27-55.

Chishti, S., 2011. Colonel’s End. s.l.:Indian Express.

Evans, G. and Sahnoun, M. 2002. ‘The Responsibility to Protect’. Foreign Affairs, 81(6), pp. 99-110.

Ganguly, S. 2016. ‘India and the Responsibility to Protect’, International Relations Volume, 30(3)p. 363.

Khandekar, R. 2015. ‘India and the Responsibility to Protect’s Third Pillar’, in: The Responsibility to Protect and the Third Pillar. London: Palgrave Macmillan .

Krause, D. 2016. It is changing after all: India’s stance on ‘Responsibility to Protect’. Observer Research Foundation, Issue Occasional Paper 90.

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[Accessed 5 April 2017].

African states’ frustrations with the ICC: justifiable or misdirected and overstated?

By Oliver Cotton

Oliver Cotton is a law conversion course student. He graduated with a BA degree in International Relations from the University of Leeds in 2017, with a particular interest in terrorism, R2P and humanitarian law. 

Despite the significant role that African states have had in both the creation of the ICC and its ongoing support, African nations and as a collective, the African Union (AU) have become increasingly frustrated with the International Criminal Court (ICC). This essay, primarily focusing on the ICC’s Sudan investigation, posits that African states have two core complaints and that neither is justified. The first complaint is that the ICC undermines African peace and violates the immunity of heads of state, particularly those not party to the ICC’s founding treaty, the Rome Statute, through continuing to investigate African conflicts when the African Union requests deferral. For instance, several African states’ have argued that the ICC hampers peace processes by compromising leaders’ immunity through indictment. It will be asserted, however, that this frustration is unjustified in two ways. Firstly, the structural inequalities of the United Nations Security Council (UNSC) would be a more appropriate target for criticism, because African states were primarily concerned with deferral in the case of Darfur, which was a UNSC failing. Secondly, the AU’s request for deferrals of ICC investigations on the grounds of stability are unjustified because their premises are ill-defined and erroneous. The second core complaint from African states is that the Court unfairly targets and discriminates against Africans. However, despite the disproportionate number of investigations within Africa, the fact that many African states trust the ICC’s judgement brings this claim into question.  

The AU’s frustration with the UNSC’s role and deferral process

A principal frustration that some African states and the AU have directed towards the ICC, is their vexation towards the Security Council’s and, concomitantly, the ICC’s dismissal of their demands for a deferral of African investigations for a year long period, in line with Article 16 of the Rome Statute (1998). The effect of which has been the perceived marginalisation and lack of authority that African states consider themselves to have over the justice proceedings of their own affairs and crimes, despite their influence in the formation of the Court (Mills, 2012). This frustration should be directed towards the role of the Security Council and the structural inequalities and power imbalances that it represents, underscored by all five of the permanent UNSC members emanating from outside of Africa. Beyond their misplaced frustration with the role of the ICC instead of that of the UNSC, this essay asserts that the necessity of deferrals, notably in Sudan, was not adequately established. At its 2009 Summit in Sirte, the AU expressed and posited two principal reasons for its non-cooperation stance towards the ICC in reaction to the Security Council’s decision not to defer the Sudan investigation that it referred to the Court in 2005 (Jalloh et al, 2011; Ssenyonjo, 2013). They are: the belief that incumbent heads of state not party to the Rome Statute are immune from the Court’s jurisdiction under Article 98(1) (Rome Statute, 1998); and the perspective that prosecutions during ongoing conflicts hinder the achievement of peace. In terms of the former, the AU argued that the ICC’s jurisdiction should not extend to states that have not ratified the Rome Statute, in line with the sovereign principle of non-intervention (Akande and Shah, 2011). This argument is premised on the logic that in international law, ‘generally only parties to a treaty are bound by its provision’ (Sirleaf, 2016, p.751). There is significant contestation regarding the complexity of whether senior members of governments should be immune from ICC prosecution if they have not consented to the Court’s jurisdiction. However, given that the Security Council referred the case to the ICC under Resolution 1593 (UNSC, 2005) and that Sudan is a member of the UN and thus subject to the UN Charter, it is posited that Sudan’s immunity has been waived in a similar way to those of state parties, pursuant to Article 27 (Rome Statute, 1998), thereby legitimising the indictment (Du Plessis, 2010; Ciampi, 2008).  

It is also important to stress that African states are not just frustrated with the UNSC’s and the Court’s role in by-passing the lack of jurisdiction that the ICC has over non-state parties, but also the more general indictment of incumbent heads of state. African leaders, party to the Rome Statute, for instance Malawi’s president, Bingu wa Mutharika expressed that, ‘to subject a sovereign head of state to a warrant of arrest is undermining African solidarity’ (Mills, 2012, p.436). African states’ criticism of the indictment of incumbent leaders, whether party or not to the ICC, is premised on the crippling effects that arresting a head of state has upon the credibility of the states themselves. However, implicit in the opposition of African countries to the ending of the impunity that leaders enjoy is also the fear amongst heads of state who have committed mass atrocities that ‘their number might be next’ (Mills, 2012, p.430). This is exemplified by the AU’s formation of the Malabo regional court in 2014 and its incorporation of an immunities provision, which states that ‘no charges shall be commenced or continued before the Court against any serving African Union Head of State or Government’ (Amnesty International, 2016). This veiled effort to further embed the impunity of African leaders is unjustifiable and starkly inconsistent with the ICC’s principal aim to eradicate the immunity of all individuals under its jurisdiction, set out in the Rome Statute (Sirleaf, 2016). 

The principal reasoning expounded by the AU for the deferral of African cases is that the arrest of officials or even leaders of African governments during conflict situations is detrimental to the brokering of peace, which African governments argue should be the primary concern of the international community. The AU expressed that its objection to the prosecution of Sudanese leader, Omar al-Bashir and other officials lay in the timing of Bashir’s indictment as opposed to the case itself. Indeed, in line with the AU’s opposition to external interference and desire for greater autonomy, the regional institution discussed whether, instead of the ICC, it could alternatively prosecute Bashir, implying that African states are willing to prosecute war criminals themselves (Mills, 2012). The organisation nonetheless called for the arrest of Bashir to be deferred in the interest of establishing peace in Sudan. It cited that the investigation could ‘seriously undermine the ongoing efforts aimed at facilitating the early resolution of the conflict in Darfur and the promotion of long-lasting peace and reconciliation’ (AU, 2008, p.2). Support for a deferral in order to benefit the Sudanese peace efforts extended beyond African states. Russia, for instance stressed its opposition to the ICC’s interference in Sudan, instead emphasising the importance of Sudan investigating its own crimes and the ICC acting as a court of last resort, in line with the principle of complementarity (UNSC, 2008). 

The elevation of peace above judicial action in order to end immunity, and the perception of irreconcilability between them are popular views among academics. It is contended that the ICC’s involvement acts as an obstacle to establishing peace (Rothe and Collins, 2013; Kastner, 2007) on the basis that its indictments have incentivised violence in: Sudan, Colombia and Uganda (Sirleaf, 2016; Riveros, 2009; Belloni, 2006). For instance, in Uganda, the ICC’s indictment of Joseph Kony was conceptualised as leading to the cessation of the Juba peace negotiations (Rothe and Collins, 2013). Likewise, in Sudan, it is noted that the arrest warrant for Bashir plausibly reinforced the rebels’ cause, in turn, resulting in the Justice and Equality Movement eliminating the possibility of negotiations (Simons et al, 2008). Despite the relative credibility of this argument in theory, in practice, there was little tangible evidence to validate the necessity of a deferral (Oette, 2010). It is important to stress that the legitimacy of a deferral following a UNSC referral of a situation to the ICC is dependent upon a change in the circumstances of a case. That is, from one that has already been considered to warrant ‘effective prosecution by the ICC into one in which the Court’s exercise of jurisdiction threatens the peace and security of the world’ (Ciampi, 2008, p.891). The Sudan situation did not merit a deferral as the AU failed to highlight any tangible change in circumstances that could plausibly justify the postponement of the ICC’s investigation in Darfur. Equally, there was no clear evidence that the ICC’s involvement obstructed peace processes or that peace would be more likely to prosper in the case of a deferral, undermining the AU’s frustration. Indeed, the Darfur conflict has persisted since 2003, highlighting the opportunity that Sudan’s government has had to foster peace and to prevent the direct involvement of the ICC through the prosecution of its own offenders, under the principle of complementarity (Jalloh et al, 2011; Fritz, 2012). Yet, it has failed to do so, illustrated by the failure of the 2006 Darfur Peace Agreement (Oette, 2010) and the unstable, violent conditions prior to the ICC indictment, underscored by the eruption of conflict in Omdurman and Abyei in 2008 (HRW, 2008). The failure of Sudan’s domestic proceedings, or more fittingly, its lack of willingness to indict its own officials, justifies the need for the ICC’s external involvement (Jalloh et al, 2011). 

The ICC’s credibility has been weakened by the lack of support from the Security Council and African states in arresting Bashir. Nonetheless, as has been argued, in the absence of a justifiable explanation for a deferral of the Sudan case, the ICC’s continued investigation was warranted and prevented the Court from setting a precedent of subordinating impunity in favour of political expediency (Oette, 2010). Furthermore, in contrast to the argument that peace should be prioritised above the prosecutorial duties of the ICC, this essay elucidates that alternatively, peace and justice are inseparable goals. As opposed to facilitating the establishment of peace, deferring cases against heads of state in the absence of exceptional circumstances would have the perverse effect of encouraging leaders to sustain conflict in order to delay their prosecution indefinitely (Oette, 2010). 

The perception of the ICC as a Western tool of African oppression 

African leaders and academics alike have cited the ICC as a tool of Western oppression that selectively and unfairly discriminates against African nations, particularly in the wake of Bashir’s 2008 indictment. Indeed, the African scholar Eberechi (2011) stressed that the ‘ICC is rapidly turning into a Western court to try African crimes against humanity’ (p.55). Rwandan president, Paul Kagame even stressed that the ICC’s unfair targeting of Africans has colonialist and racist overtones (Steinberg, 2016; Sudan Tribune, 2009). The extent of this frustration is encapsulated by the African Union passing a resolution in 2008 to appeal to the European community to halt the indictment of Africans (Mills, 2012). The pinnacle of this frustration and subsequent opposition to the ICC’s operational functioning by African states came with South Africa’s, the Gambia’s and Burundi’s announcement of their plans to withdraw from the Court (Keppler, 2017). Although the AU has consistently found issue with the Court’s work, its endorsement of the withdrawal of African states collectively from the ICC at the 2017 AU summit signaled the culmination of the continent’s frustrations with universal jurisdiction and the role of the ICC (Jalloh et al, 2011; Maasho, 2017). This has even prompted commentators to question whether such action signals the end of the ICC (Allen, 2016; Cronin-Furman and Schwartz, 2016). This is grounded in the logic that international institutions, such as the League of Nations have historically become redundant and perished once members have flouted their jurisdictions and withdrawn their membership (Murithi, 2012). 

Both Gambia’s and South Africa’s decision to withdraw from the Court have since been revoked, however, it is clear that the frustration amongst African governments regarding its perceived biased targeting has damaged the ICC’s credibility. This is particularly apparent, given that African membership and support for both the ICC’s founding and ongoing execution have been integral to its relative success as an institution to date. Nevertheless, upon analysis, the perspective that such frustration could beckon the ICC’s demise is thoroughly futile and simplistic. It obscures the disparity and disagreement amongst African states regarding their support for the ICC. For instance, the majority of African states either opposed the decision by Gambia, South Africa and Burundi to declare their withdrawal from the ICC or reaffirmed their support for the Court (Momoh, 2017; AU Summit, 2017). Thus, the AU’s declaration of non-cooperation and withdrawal from the ICC did not represent the majority view.

The ICC’s selectivity and Western bias is supported by nine out of ten of the situations under investigation by the Court residing on the African continent (ICC, 2017a). Nonetheless, the African frustration regarding the perceived oppression of the ICC grossly misrepresents the reality. Although Western, powerful states are more capable of averting the Court’s jurisdiction and justice, the ICC is far from a Western institution, represented by the Gambian nationality of its incumbent prosecutor, Fatou Bensouda (Smith, 2012). Furthermore, it is clear that this perceived Western oppression of Africans masks the accountability, autonomy and transparency inherent in the ICC (Du Plessis, 2010). The frustration is additionally flawed, given that far from unfairly targeting the continent, African states have, in fact, requested the ICC’s investigation into their own affairs, confirming that the ICC purely acts in the interests of African victims. This is signified by self-referrals marking five out of the nine African situations under investigation (ICC, 2017a). The fact that the Security Council has only referred two out of these nine cases to the ICC brings into question Mamdani’s (2009) narrative of the ICC as a tool of the West. The imbalance in the Court’s prosecutions and investigations into African situations is predominantly explained by factors outside of its control and its limited jurisdiction, marked by neither America, China, nor Russia being party to the ICC Statute (ICC, 2017b). Notably, in the absence of a Security Council referral, the ICC can solely prosecute individuals from its state parties via self-referrals or the proprio motu capabilities of the ICC Prosecutor. The Court is thereby heavily dependent upon state support and power politics. Nonetheless, the frustration of African states is further undermined by the ICC’s evident willingness and intent to prosecute the most heinous war crimes wherever they occur when the Court has both the jurisdiction and the authority to do so (Jalloh, 2010). This is evidenced by five of the ten situations under preliminary investigation coming from outside of Africa, notably, Bensouda’s reopening of the case against British nationals in Iraq, previously closed by her predecessor, Ocampo in 2006 (ICC, 2017c). The higher prevalence of conflict and, concurrently, war crimes, coupled with Africa representing the region with the most signatory states to the Rome Statute, further justifies the disproportionate number of African cases investigated by the ICC (Jalloh et al, 2011; Brock-Utne, 2001). 

Conclusion 

In examining the justifiability of African states’ frustrations with the ICC, this essay has evaluated two overarching dissatisfactions which have impaired the relationship between the ICC and the African Union. It has concluded that neither frustration, nor the broader discontent that African governments have directed towards the ICC are justifiable. The AU’s frustration regarding the overlooking of its appeal for the deferral of African cases under ICC investigation should be re-directed towards the role of the Security Council and its embodiment of structural inequalities. African governments’ vexation towards the ICC for pursuing cases despite AU opposition is additionally unwarranted, premised on two shortcomings. They are: The African Union’s failure to expound the necessity of deferrals in the interest of peace; and some African states’ incompatible and flawed belief that incumbent heads of state should enjoy impunity, given that the ICC was definitively set up to end the immunity of all individuals under its jurisdiction and remit. African states’ criticism of the Court as a Western tool that is biased against and seeks to oppress Africans is an equally misplaced frustration. For, the ICC’s sizeable jurisdiction within Africa, coupled with the greater willingness of African states to self-refer cases justifies the disproportionate number of prosecutions and investigations on the continent. Nevertheless, going forward, it is important that the ICC builds upon and translates some of its five preliminary examinations from situations outside of Africa into fully fledged investigations. Pursuing cases beyond Africa more diligently and purposefully would advance the ICC’s inherent goals of ending the immunity of war criminals and protecting victims globally, whilst simultaneously acting to thwart African states’ increasing opposition towards the Court. In a similar vein, African governments can alleviate their frustrations by increasingly adhering to the ICC’s role as a court of last resort and its principle of complementarity by emboldening their domestic judicial systems and, concurrently, progressively prosecuting their own crimes. 

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

Caitlyn Duke, The University of Queensland, Australia

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

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

Assessing the Responsibility to Protect Success in Libya

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

Bibliography

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

Enyeribe Oguh, University of York, United Kingdom

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

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

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

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

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

The Extent and the Limits of the Court’s Jurisdiction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unshackling the Elephant Court: Looking Ahead

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

Ben Taylor, The University of Queensland, Australia

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

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

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

Al-Bashir, South Africa and the African Union

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

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

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

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

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

Security Council Obligations

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

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

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

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

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

Punishing Genocide

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

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

Enforcement potential

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

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

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

Aut Dedere Aut Judicare

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

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

The Relevant Conventional Obligations:

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

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

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

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

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

Scope of the Offences 

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

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

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

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

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

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

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

Enforcement

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

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

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

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

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

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

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

Enforcement in National Courts

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

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

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

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

Conclusion

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

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

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

References cited

Treaties

Charter of the United Nations.

Statute of the International Court of Justice.

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

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

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

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

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

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

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

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

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

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

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

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

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

Security Council Resolutions

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

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

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

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

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

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

International Court of Justice Cases

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

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

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

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

International Criminal Court Cases

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

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

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

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

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

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

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

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

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

International Criminal Tribunal for the former Yugoslavia Cases

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

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

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

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

Special Court for Sierra Leone Cases

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

Communications of the Committee against Torture

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

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

United Kingdom Cases

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

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

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

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

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

South African Cases

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

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

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

International Documents

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

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

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

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

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

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

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

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

African Union Documents

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

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

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

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

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

Books and Journal Articles

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

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

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

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

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

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

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

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

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

News Reports

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

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

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

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

Notes

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

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

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

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

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

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

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

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

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

[10]        See Gaeta 2009; contra Akande 2009.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Legitimacy

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

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

Case Study: The Peacekeeping Takeover in the Central African Republic

Background

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

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

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

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

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

Three factors of legitimacy 

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

Capacity to protect civilians

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

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

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

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

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

Likelihood of success

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

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

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

National Interests

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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Notes

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

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

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

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

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

[6] Personal correspondence

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

Interview by Georgiana Epure, Charlotte Abbott and Emma Bapt

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

COVID-19

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

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

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

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

Role of religious leaders

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

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

R2P focal points

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

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

Women, Peace and Security agenda

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

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

Measuring R2P success

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

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

A word for young people working on atrocity prevention

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

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

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