It's IntLawGrrls' great pleasure to welcome Linda A. Malone (left) as today's guest blogger. Linda, as we've posted in the past, is the Marshall-Wythe Foundation Professor of Law and Director of the Human Security Law Program at the College of William and Mary School of Law. She's been a Visiting Professor at the law schools of the University of Virginia, Washington and Lee, Duke University, University of Arizona, and University of Denver, and has taught law at the University of Illinois and University of Arkansas, Fayetteville. An original representative on the Environmental Commission of the World Conservation Union (IUCN), Linda is the author of numerous articles and books in the areas of international law, human rights, and environmental law. A recent example is the co-authored Defending the Environment: Civil Society Strategies to Enforce International Environmental Law (2006). Linda also was the Associate Editor of the Yearbook of International Environmental Law, has served on the Advisory Council to the National Enforcement Training Institute of the U.S. Environmental Protection Agency, and serves on the Board of Directors for the International Society for the Reform of Criminal Law, among many other professional affiliations. In her guest post below, she examines -- against the backdrop of the principle of responsibility to protect -- international responses to the conflict in Libya and to the tsunami in Japan. Linda was a delegate to the U.N. Conference on the Environment and Development in Rio in 1992, co-counsel to Bosnia-Herzegovina in its genocide case against Serbia and Montenegro before the International Court of Justice, co-counsel to Paraguay in its challenge to the death penalty in Paraguay v. Virginia, and an amicus co-counsel in the U.S. Supreme Court in Padilla v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006). In 2009-2010, Linda held the Fulbright Distinguished Chair in International Environmental Law at the University of Turin, Italy, and in 1998, she received the Fulbright/OSCE Regional Research Award for her work on women's and children's rights in Eastern Europe. She's served on the Special Subcommittee on the Rights of the Child for the American Bar Association, and she received the Millennium Award of the Virginia Women's Bar Association in 2000 for her contributions to women's rights. Linda earned her B.A. from Vassar; her J.D. from Duke, where she was Research and Managing Editor of the Duke Law Journal; and her LL.M. from the University of Illinois. She clerked for Judge Wilbur F. Pell of the U.S. Court of Appeals for the Seventh Circuit, and practiced law in Chicago and Atlanta before joining the faculty at William and Mary.
(Thanks to IntLawGrrls for the opportunity to contribute this guest post)
On September 16, 2005, the General Assembly of the United Nations adopted by consensus a resolution recognizing the responsibility to protect. The core of the responsibility to protect (R2P) as adopted by the both the General Assembly and Security Council was first embodied in Paragraph 138 of the 2005 World Summit Outcome declaration:
'Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it.'
Paragraph 139 continues:
'The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.'
'where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.'
For military intervention to be justified for human protection purposes, there must be:
'serious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind: 'A. Large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or 'B. Large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.'
In dealing with what should occur if the Security Council fails to fulfill its responsibility or to do so “in a reasonable time,” “alternative options” are: ► Consideration of the matter by the General Assembly in Emergency Special Session under the “Uniting for Peace” procedure; and ► Action within area of jurisdiction by regional or sub-regional organizations under Chapter VIII of the Charter, subject to their seeking subsequent authorization from the Security Council. The ICISS report cautions:
'The Security Council should take into account in all its deliberations that, if it fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation –and that the stature and credibility of the United Nations may suffer thereby.'
Speaking from the perspective of September, 2001, the Commission concludes that it is impossible to find a legal consensus regarding humanitarian intervention without UN authorization but does not rule out the possibility of such intervention. It is for this reason that the Commission remarks that when a state or states intervene because the UN has failed to do so, and the states or state do so successfully, there may be “enduringly serious consequences for the stature and credibility of the UN itself.” This R2P framework illuminates current events in Libya and Japan.
Libya There are four basic sanctions against Libya in Security Council Resolution 1973 (prior IntLawGrrls post); specifically, the: ► Assets freeze; ► No-fly zone; ► Arms embargo; and ► Protection of civilians. The assets freeze is left to individual states and does not involve force, so can be set aside for purposes of this discussion. (credit for March 2011 Goran Tomasevic/Reuters photo of airstrike in Libya) The resolution authorizes states to “take all necessary means” to protect civilians. On March 24, 2011, NATO announced that it would be assuming responsibility for the arms embargo and the no-fly zone, and a few days later for protection of civilians as well. Resort to the responsibility to protect, although cited by some commentators in reference to the resolution, is unnecessary to the legal authority of the resolution. The three-prong authorization of force falls easily within prior precedents predicated on a finding of a threat to peace or breach of peace under Chapter VII and authorization of collectively authorized humanitarian intervention within the term threat to peace. Indeed, the crimes precedent to triggering the responsibility to protect may or may not have been sufficiently established to give rise to the responsibility. This responsibility is triggered only when a state has “manifestly” failed to protect its population from acts constituting genocide, war crimes, ethnic cleansing, or crimes against humanity. The resolution refers to Libya’s responsibility to protect the Libyan population, the “widespread and systematic attacks in the Libyan Arab Jamahariya” which “may amount to crimes against humanity,” and the referral to the International Criminal Court of these possible crimes. It does not declare that Libya has committed any of these crimes. More importantly, a state’s failure to protect its own population from these crimes triggers a collective responsibility to protect using peaceful measures. With respect to force, the formulation says only that the international community is “prepared” to use force in such circumstances, not that it has an affirmative responsibility to do so. In short, resort to force remains as discretionary in terms of Security Council authorization as it was when predicated on a threat to peace.
Japan Earthquakes, tsunamis, and climate disruption have focused international attention on environmental disasters, natural and anthropocentric, and the ability of the global community to respond adequately and immediately. Whatever the magnitude of the humanitarian violations in Libya, they are eclipsed by the sheer magnitude of the earthquake, tsunami, and nuclear disaster in Japan. (credit for NOAA animated model)
UN officials, including Secretary-General Ban Ki-moon, have been quick to deny that the responsibility to protect applies to environmental crises, including specifically climate change and its consequences. Nevertheless, the four specified crimes can encompass situations of abusive governments or non-state actors inflicting environmental damage. In Iraq, for example, Saddam Hussein's destruction of the natural resources essential to living conditions of the Marsh Arabs could have been considered “deliberately inflicting conditions of life calculated” to bring about the physical destruction of the group in whole or in part. The ICISS formulation calls for intervention even by force whenever there is large-scale loss of life, coupled with a state’s unwillingness or inability to act. The reality of a deteriorating planet and multiple environmental disasters, which even the most well-prepared and well-intentioned state may find itself unable to address, highlights the shortsightedness in the UN position that the responsibility to protect should not be formulated to address environmental disasters. Is there a humanitarian disaster which calls for global responsibility to respond and protect, with or without a state’s consent, more than a convergence of environmental disasters? There is a pressing need for reconsideration of the responsibility in an environmental context, before the next disaster occurs in a state that is unable, and unwilling, to act.
(Occasional sobering thoughts.) The United States, France, and other countries intervened militarily against Libya's government yesterday -- the 8th anniversary of the U.S.-led invasion of Iraq. Participation by France (under President Nicolas Sarkozy) departed from the earlier script, when France (under President Jacques Chirac) vocally opposed intervention and so thwarted the United States' bid for U.N. Security Council authorization. This time around, France pushed earlier and hard for a Security Council resolution. Some officials in the United States initially resisted. But as predicted nearly a month ago by our Opinio Juris colleague Chris Borgen, a tweet heard 'round the world (below center, by Anne-Marie Slaughter, who just finished a 2-year stint as the head of policy planning at the State Department) seemed to set the stage for support by Secretary of State Hillary Clinton and, eventually, President Barack Obama.
Protection of civilians 4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council; ....
Hence yesterday's Tomahawk strikes on Libyan air defense systems. Hence, too, today's complaint from an advocate of the no-fly zone -- the leader of the Arab League said "the use of force was excessive following an overnight bombing campaign that Libya claims killed at least 48 people." The Security Council-endorsed actions are taking place in the name of civilians. A noble cause, yet one without end. If Libya, why not other countries whose governments harm their own people? To name one, why not Côte d'Ivoire, site of tragic deaths amid months-long post-election violence? As made explicit in the preamble to Resolution 1973, the Security Council resolved to act in the name of the fledgling doctrine of responsibility to protect. The Council's choice of Libya, to the exclusion of other global trouble spots, exposes once again the unsettling selection bias inherent in current conceptualizations of that doctrine. Unsettling too is the notion of a 3d (or 4th, depending on how one counts AfPak) armed conflict in which the United States is engaged -- and in which civilian deaths are likely to occur even in the course of efforts to protect civilians. While waiting to see what transpires on the Libyan front, it is due time to review casualties since our last post, 16 weeks ago, in the long-running conflicts in Afghanistan and Iraq. ► In Afghanistan, "[t]argeted killings of civilians in Afghanistan doubled" in 2010, according to an annual report recently issued by the United Nations. Specifically, there was "a 15 percent increase in the number of civilians killed to 2,777 -- continuing a steady rise over the past four years" in the nearly decade-old conflict. The U.S. Department of Defense reports that in Afghanistan, coalition military casualties stand at 1,505 Americans, 360 Britons, and 507 other coalition servicemembers. That's an increase of 89, 15, and 23 casualties, respectively, in the last 16 weeks. The total coalition casualty count in the Afghanistan conflict is 2,372 service women and men. ► Respecting the Iraq War launched 8 years ago this weekend -- a milestone observed by scattered protests --Iraq Body Count reports that between 100, 051 and 109,318 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003. That represents an increase of between 1,030 and 1,224 persons since 16 weeks ago. According to the U.S. Defense Department, 4,440 American servicemembers have been killed in Iraq, representing 11 servicemember deaths in the last 16 weeks. (As posted, U.S. troops are the only foreign forces remaining in Iraq.)
(Taking context-optional note of thought-provoking quotes)
'The mapping exercise and the resulting Report create a dilemma. They raise strong suspicions that crimes under international law, at least war crimes and crimes against humanity, have been committed in the DRC on a large scale. These cannot simply be disregarded or ignored, especially as they concern the very crimes envisaged under the principle of ‘responsibility to protect.’ Yet the Report merely lists allegations, and more investigations would be needed before prosecuting any of these incidents.'
– Cecile Aptel (below left), currently a Jennings Randolph Senior Fellow at the U.S. Institute of Peace, who next year will become a Professor of Law at the Fletcher School, Tufts University, Medford, Massachusetts. Aptel's observations may be found in an ASIL Insight that analyzes a United Nations publication comprising 566 pages and carrying a mouthful of a name – the "Report of the Mapping Exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo between March 1993 and June 2003." Released by the Office of the U.N. High Commissioner for Human Rights over objections from a state whose troops are implicated, the report chronicles a decade of crimes, at times possibly amounting to genocide. The evidence pose challenges, Aptel reports:
► How best to bring perpetrators to account?
► And which perpetrators?
Lead investigator Luc Coté, formerly a prosecutor in Canada and at the Special Court for Sierra Leone and the International Criminal Tribunal for Rwanda, suggested "a hybrid judicial mechanism and a new truth and reconciliation." Those options themselves pose dilemmas, as Aptel aptly explains.
(Delighted to welcome back alumna Monica Hakimi, who contributes this guest post)
When must states protect people from abuses committed by third parties? That obligation (termed the “obligation to protect”) is everywhere in modern human rights law. Consider a few examples of how decisionmakers prescribe, invoke, or apply it: ► Under the Convention on the Rights of the Child, states must take measures to protect children from “physical or mental violence…while in the care of parent(s).” ► Non-refoulement prohibits states from returning people home if there is a risk of third-party harm. A state that deports someone despite that risk typically does not participate in the abuse. Rather, the deporting state fails to satisfy an obligation to protect. ► The International Court of Justice (bottom right) has interpreted the Genocide Convention to require states to protect people from acts of genocide committed by or in another state. ► The concept of responsibility to protect posits: (1) that each state must protect its population from certain atrocities, including atrocities committed by third parties; and (2) if one state fails to satisfy that obligation, it shifts to the international community. ► The International Law Commission (below left) has proposed a rule rendering states responsible where they delegate authority to an international organization that then violates rights. (photo credit) Under the proposal, a delegating state would be responsible even if the abuse were attributable only to the international organization. In each of those examples, the state must protect someone from third-party abuse.
The entity committing the abuse may be a private actor, another state, or an IO. The critical point is that the duty-holding state may be responsible simply for standing by—for not satisfying an affirmative obligation to protect. The state need not participate in the abuse to be responsible. Though the obligation to protect is prevalent, no generalized framework exists for appraising when states have it or what it requires.
Instead, decisionmakers prescribe and apply the obligation ad hoc — under different sources of law and for discrete groups of victims (e.g., children), harms (e.g., physical violence), or abusers (e.g., private individuals). As a result, states' practice is splintered and, at times, inconsistent or confused. My article State Bystander Responsibility, published earlier this year in the European Journal of International Law, seeks to remedy that problem by presenting a generalized framework on when states are and should be responsible for failing to protect people from third-party harm.
The framework explains the practice where it is uniform, and helps guide decisions where the practice is inconsistent or confused: First, whether a state has the obligation depends on its relationship with the (actual or potential) abuser.
A duty-holding state must restrain third parties from committing abuse. Of course, the interest in protecting potential victims favors establishing that obligation. But varied considerations favor limiting when and how states assert their authority over third parties. The obligation thus requires a normative judgment: Given its particular relationship with the third party, are the state’s restraints desirable or overly intrusive? The practice provides considerable guidance on that question. A state generally must restrain third parties to whom it delegates governmental functions or who operate in its territory (or in territory under its control). By contrast, a state generally need not restrain third parties in other states. Broad assertions to the contrary do not reflect legally operative obligations. Consider, for instance, the responsibility to protect contention that all states must restrain any particular state which commits atrocities. Such an assertion is essentially unenforceable and in practice unenforced against particular bystander states.
Nevertheless, the general rule that states lack extraterritorial obligations to protect is subject to an important exception: A state may have that obligation where it substantially enables a third party to violate rights. In that event, the duty-holding state may or may not participate in the abuse under the traditional rules on attribution. But having enabled the abuser, the state must protect against its harm. A few examples:
► Serbia had to restrain the Bosnian Serbs in the ICJ's Genocide Case. (prior IntLawGrrls post)
► Russia had to restrain Georgian and Moldovan separatists that it supported.
► Turkey had to restrain the Turkish Cypriot administration that it propped up.
► And arguably at least, deporting states enable entities in the home country to violate rights, thus triggering obligations of non-refoulement. Second, obligations to protect depend on the kind of harm caused. States must protect only against conduct that:
(1) causes serious physical or psychological harm; or
(2) affects someone because she belongs to a vulnerable group.
Treaty bodies sometimes assert that states also must protect against other conduct, especially where the abuser is a private actor. That assertion is inconsistent with substantial other practice. Indeed, the treaty bodies themselves apply the obligation more narrowly—and almost exclusively to conduct falling in the above two categories. Thus, states must restrain an employer who beats its employees (category 1) or discriminates on the basis of sex (category 2). But they need not restrain an employer from terminating an employee who is a bad worker or no longer needed. Yes, the termination affects the employee’s right to work. It does not trigger an obligation to protect because the state need not restrain the employer to protect its employees from termination. Rather, the state must try to fulfill the employees’ right to work by, for instance, offering them educational programs. Finally, a state that has the obligation — because of its relationship with the third party and the severity of the harm — must take reasonable measures to restrain the third party. Reasonableness depends on context, but several factors inform whether particular measures are reasonable:
(1) the nature of the abuser (i.e., whether a private actor, another state, or an international organization);
(2) the nature of the harm;
(3) whether the practice specifically identifies the measures the state must take (e.g., requires criminal action) or leaves that determination to each state’s discretion;
(4) the scale of the problem; and
(5) the state’s capacity to take more effective measures. A duty-holding state is responsible if it takes either no measures or measures that are unreasonably lax to restrain the third party.
Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.
As we've posted, the meaning and consequences of this "responsibility to protect" paragraph remain a subject of global debate.
(Prior October 24 posts are here, here, and here.)
(Go On! is an occasional item on symposia and other events of interest) Public opinion on international law and on The Hague-based International Court of Justice, as revealed in a 21-country poll, will be the subject of a discussion from 4-5:30 p.m. Tuesday, November 3, at Tillar House, the headquarters of the American Society of International Law, 2223 Massachusetts Avenue, N.W., Washington, D.C. ASIL's cosponsoring the event along with WorldPublicOpinion.org, whose Director, Steven Kull, will present the findings from a survey from a variety of locations, including Britain, China, Egypt, France, Germany, India, Indonesia, Iraq, Kenya, Nigeria, Pakistan, Palestine, Russia, and the United States. ASIL Executive Director Elizabeth Andersen will moderate a panel of discussants on the results. Among the questions to be explored include many on which IntLawGrrls frequently post, such as: the desirability (or not) of compliance with international law; confidence (or not) in the ICJ; the role of the United Nations; intervention under the banner of responsibility to protect or for other reasons; and the International Criminal Court indictment of Sudanese President Omar al-Bashir. Details and registration for the free event are here.
(Part 3 of a 3-part guest post on what women want from international criminal justice, by Judge Patricia M. Wald. Part 1 is here; Part 2 is here.)
I believe women want international law and tribunals to make a difference in their daily lives. Even if tribunals do their work well, so that women’s wrongs are recognized as serious war crimes, crimes against humanity, and tools of genocide – even if enough women can infuse their own sensitivities into the process – even if tribunals achievements’ are truly accessible to ordinary women – will all that really help women in states where old ways survive? In states where women are treated, in peacetime as well as in wartime, as property, and their sexual and physical integrity impugned at will? Even in countries that have ratified the Convention on the Elimination of All Forms of Discrimination Against Women and other human rights treaties, customary law and local norms executed by tribal and religious courts often approve practices that oppress and diminish women – that deny them rights to work, to hold property, to custody of their children, to be educated, to inherit money, or to obtain divorces however maltreated they may be. In these benighted lands, there are only a few embryonic organizations, and even fewer shelters, for oppressed women. You may ask what all this has to do with tribunals. I see an entry point whereby the advances of international humanitarian law and tribunal jurisprudence could help the plight of these women and girls. It is future development of the crimes against humanity doctrine. Unlike genocide, which limits its protection to racial, religious, and ethnic groups, and unlike war crimes, which require a nexus to armed conflict, crimes against humanity can include a state-ordered, perhaps even a state-tolerated, regime of discrimination that violates the fundamental rights of women. Surely the conditions I have described could, in extreme cases, amount to the discriminatory treatment that is the vital element in the underlying crime of persecution, which can qualify as a crime against humanity. Article 7 of the ICC Statute defines a crime against humanity as prohibited conduct that is part of an “attack,” against “any civilian population,” which involves “the multiple commission of specified acts pursuant to or in furtherance of a state or organizational body”; the violations must be systematic or widespread. Article 7(g) sets out the full list of sexual crimes – rape, slavery, forced pregnancy, etc. – that may anchor a crime against humanity designation. Article 7(h) specifies gender as a ground on which a claim for persecution can be based. The $64 question, of course, is whether a state-tolerated regime of gender oppression, enforced by private parties or clerical or tribal authorities, would ever meet the test. It is certainly not beyond contemplation that discriminatory legislation, exemplified by the Shiite law on mandated intercourse and travel bans for married women passed by the Afghanistan parliament, might qualify, or that regimes that allow women to be stoned to death for adultery without any formal trial might as well. Recent developments lend support for this way of thinking: ► Action by U.S. immigration authorities, granting asylum for women who show that the rigid discriminatory codes of conduct pertaining to women in their native countries were officially approved or enabled by the government; ► A ruling by the European Court of Human Rights that Turkey’s failure to protect a woman who had sought help from the authorities from domestic violence amounted to gender discrimination in violation of obligations under CEDAW; and ► The embryonic responsibility to protect doctrine embraced by the United Nations, which seeks to delineate the obligations of a country to keep its residents safe from predatory attacks by nongovernmental groups. I do not speak in an advocacy mode. Nor am I sanguine that crimes against humanity will proceed along this route. But I persist in thinking that the very existence of a universally accepted criminal norm that so neatly fits the situation that so pervasively stifles the very life and spirit of so many women in so many parts of the world could serve a purpose: ► An extreme case could arise where the degree of violence or slavery-like conditions systematically imposed on civilian women would produce an international cry for humanitarian intervention, including criminal accountability of the persons responsible. ► Following Justice Robert H. Jackson’s more conservative example as Chief U.S. Prosecutor at Nuremberg – he insisted that the crimes against humanity committed by the Nazis against the Jews in prewar Germany could be charged as such if they were part of preparation for war – a prosecutor might in the context of a wartime case against leaders of these regimes add a count based on the continuing abuses perpetrated against women at all times. (I have often wondered how a judge could rule on wartime atrocities against women and not be troubled by equally abhorrent acts committed in peacetime against those same women.) ► There is the hope and some evidence that tribunal decisions on gender crimes will work their way into domestic jurisprudence. ► The recognition of crimes against humanity extending to systematic oppression of women would be a useful talking point in diplomatic negotiations that seek compliance with more traditionally enforceable treaties or convention obligations. ► In some countries – Kuwait, Egypt, even Iran – where women are beginning to organize against gender discrimination and to affirmatively seek rights to education, custody, and property, the crime against humanity designation for persistent denial of their pleas might add to their powers of persuasion. ► If this norm were in place, countries would have to comply with it when seeking to join the ICC – a point at which they must conform their own laws in order to meet complementarity standards. ► It would indeed be salutary if the ICC prosecutor were to mobilize on behalf of women suffering the worst abuses the kind of “Dutch uncle” supervision -- proactive complementarity -- that he has told us is already under way in several countries where outside groups have urged him to open formal investigations into a variety of alleged offenses. I entreat you to think about ways in which the tribunals can alleviate the misery of women, in situations where the commission of serious crimes against humanity is virtually indisputable, so that if and when the right situation comes along, you will be ready.
Does international law adequately address the right of states to intervene when a sovereign government fails to protect its own citizens? My colleague Jarrod Wong has recently published an article on this question. In Reconstructing the Responsibility to Protect in the Wake of Cyclones and Separatism, Wong explores the doctrine of Responsibility to Protect (R2P), which was endorsed by the United Nations in 2005. R2P provides that where sovereign governments are manifestly failing to discharge their primary responsibility to protect their populations, that responsibility shifts to the wider international community acting through the UN. But Wong seeks to reconceptualize R2P. He argues for the ability of the international community to respond not just to mass atrocities affirmatively perpetrated through armed attacks, but also to those resulting from a government’s criminal failure to protect its own people from harm based on omission.
It is a provocative idea, to say the least. Wong argues for a "constructive interpretation" of R2P, which would allow state intervention in cases like Myanmar after Cyclone Nargis. The junta refused to allow foreign aid into the country even as its people lay dying. Should the international community have remained silent? Wong argues not, and he grounds his claims in international law, international criminal jurisprudence, and general rules of interpretation. He also explores how R2P might apply in the context of environmental disasters and global pandemics. An interesting read indeed!
As I mentioned in an earlier post about a French ship's run in with pirates in the Gulf of Aden, France asked the Security Council (right) for action, particularly in the form of “regular international surveillance” and changing the definition of "piracy" in the Law of the Sea Treaty to allow states to pursue pirates even in the coastal waters off Somalia. Earlier this month, acting under Chapter VII of the UN Charter, the Security Council unanimously adopted Resolution 1838, which authorizes states to take action against acts of piracy and armed robbery against vessels off the Somalian coast. Having determined
that the incidents of piracy and armed robbery against vessels in the territorial waters of Somalia and the high seas off the coast of Somalia exacerbate the situation in Somalia which continues to constitute a threat against international peace and security in the region,
the Security Council encourages states to deploy "naval vessels and military aircraft" in the area (photo credit). Leery of establishing a precedent, the Council clearly states that the Resolution applies only to Somalia and "underscores in particular that this resolution shall not be considered as establishing customary international law." Interesting. Apparently, the Security Council was not willing to go as far as France had proposed: it authorizes military undertakings in Somalia's coastal waters to combat piracy as a tributary to or aggravating factor in the international-peace-threatening situation in Somalia, but the definition of "piracy" would still seem to limit the crime to acts on the high seas. Though piracy was the original threat to collective security, giving birth to universal jurisdiction and providing the model for actions against today's perpetrators of international crimes, it no longer seems to be considered as such. Instead, in this particular situation, it is a hook for a sort of externalized R2P--we intervene at water's edge to protect our interests on the theory that this will improve, or at least help keep from worsening, the situation within Somalia.
For those of us who have worked long and hard to create a consensus that the world should never again turn its back on another Cambodia or Rwanda, this and every misapplication of R2P -- genuine or cynical -- is an occasion for alarm. We are conscious of the fragility of that consensus should the impression gain hold that R2P is just another excuse for the major powers to throw their weight around. It needs to be made clear beyond a doubt that whatever other explanation Russia had for its military action in Georgia, the R2P principle was not among the valid ones.
An accurate critique, well made.
But is it really any surprise that Russia would lay claim to "responsibility to protect"? Seems scarcely more surprising than the fact that Russia has -- as Mary Ellen O'Connell guest-noted last month -- equated its August embrace of breakaway independence in the Caucasus with the West's February embrace of breakaway independence in Kosovo. (IntLawGrrl Elena Baylis' February Kosovo posts are here and here.)
The aims behind the R2P movement are exemplary. Nonetheless, as I've written in this essay and in posts here and here, and as José Alvarez wrote here, skepticism's due any undue focus on rhetorical flourish over actual reform of existing mechanisms.
R2P, like any effort at collective avoidance of atrocity, must operate primarily within the collective security framework established in 1945; that is, within the Security Council (right). Article 27(3) of the U.N. Charter, of course, permits permanent-member Russia -- and permanent-members China, and France, and Britain, and the United States -- to sideline all collective bids to act against them or their ally/client states.
The core problem in the conflict in Georgia, then, is the veto power. Russia's dubious claim that it's shouldering a "responsibility to protect" is but a symptom.
Earlier today, the Human Rights Council extended the mandate of Harvard Kennedy School Professor John Ruggie (left) as the Special Representative of the U.N. Secretary-General on the issue of human rights and transnational corporations and other business enterprises. The Council's Resolution welcomes the reports that Ruggie and his team have submitted over the term of the last three years, including the most recent and final Report, Protect, Respect and Remedy: A Framework for Business and Human Rights. Today's Resolution provides support for promotion and operationalization of the framework. (photo credit)
Among the specific requests of today's Resolution, Ruggie has been asked to:
► provide concrete and practical recommendations on the State duty to protect against abuses by, or involving, business enterprises;
► elaborate even further on the scope of corporate responsibility to respect human rights;
► make recommendations regarding effective remedies, wherever they may be available; and
► integrate a gender perspective throughout his work and give special attention to vulnerable populations.
IntLawGrrls contributors, including Naomi Norberg and I, have commented on the Report and other aspects of Ruggie's work, here and here. Additionally, I prepared an ASIL Insight on the Report, which was published today. Part of what I say there is that Ruggie's Report provides a useful roadmap of the often fragmented efforts at addressing business and human rights, and provides a common set of goals for all stakeholders to this issue. Today's renewal of his mandate opens the door for Ruggie's governance approach to take on practical import and make a significant impact on the current relationship of business vis-à-vis human rights.
Poor Burma. If ever a country deserved better, it is Burma. A peaceful, predominantly Buddhist country, rich in natural resources and fertile land, Burma should be the economic engine of South East Asia. Instead, the country has suffered in the grips of a repressive military junta, the State Law and Order Restoration Concil (SLORC) for years. SLORC has held the elected leader of the country, Nobel Peace Prizewinner Aung San Suu Kyi (left), has been held under house arrest for more than a decade. Last fall, the junta smashed monk-led street protests. Those protests were sparked by the soaring price of rice, but were popularly perceived as a challenge to the regime itself. An unknown number of monks and other civilians were killed, and many remain in detention. Then came Cyclone Nargis with its 120 mile an hour winds. On May 3, the cyclone swept through the Irrawaddy delta, a densely populated rice growing region, leaving death and destruction in its wake. Tens of thousands are dead. Survivors face poor sanitation, no shelter and a lack of drinking water. Outbreaks of malaria and dengue fever, as well as cholera and dysentery, are likely. To top it off, the entire nation’s food security is now in jeopardy. The cyclone devastated area produces most of Burma’s rice and fish. Save the Children's Burma Representative Andrew Kirkwood has compared the scale of the disaster to the 2004 tsunami. The Food and Agriculture Organization today called for $10 million dollars of emergency assistance to farming and fishing communities. With climate change apparently well underway, we can expect more of these severe storms, and as always, it is the poorest who are most vulnerable. Will help Reach Those in Need? Astonishingly, in Burma, that vulnerability is being compounded by an irresponsible and unresponsive government. The SLORC government is preventing foreign aid workers from reaching those in jeopardy. Today, the United Nations announced that it is suspending relief efforts after SLORC seized U.N. rice stores and equipment. According to the World Food Program, the junta seized all of the food aid that the agency had managed to get into Burma. Watching this humanitarian disaster unfold, I can’t help thinking that we are seeing the dark side of sovereignty. Is the international community really powerless to prevent the junta from refusing to admit foreign aid workers, and thwarting international relief efforts? The survivors of this disaster deserve better. France apparently agrees. According to the Daily Mail, France proposed invoking Security Council Resolution 1674, which articulates an international "responsibility to protect," to bypass the junta and deliver aid directly to those in need.
P.S.: By the way, I deliberately choose to call the country Burma, not Myanmar, because the name-change was a SLORC project, and has not been recognized by the opposition (the legally-elected government.) The UN may use Myanmar, but it will be Burma to me until the democratic opposition says otherwise.
An encomium to international law is headline news this morning. Not, alas, because of its content, but rather because of its source: Pope Benedict XVI. In his address to the General Assembly of the United Nations yesterday, the pope warned against an international order dependent solely on the whims of sovereign countries. "Discernment, that is, the capacity to distinguish good from evil," he said,
shows that entrusting exclusively to individual States, with their laws and institutions, the final responsibility to meet the aspirations of persons, communities and entire peoples, can sometimes have consequences that exclude the possibility of a social order respectful of the dignity and the rights of the person.
Benedict (right) looked, rather, to transnational and international institutions as vehicles to promote human dignity, using a "common language" and not "a relativistic conception." For the pope religion is one such transnational vehicle, of course; "relativist" is, after all, an antonym of "catholic," itself a a synonym of "universal." Yet he devoted much of his address to a vehicle typically expressed on the temporal plane: human rights, the promotion of which Benedict called
the most effective strategy for eliminating inequalities between countries and social groups, and for increasing security.
Even as he found traces of human rights in the centuries-old writings of Catholic scholars like Augustine and de Vitoria, the pope found its contemporary source in a 20th C. secular instrument, the 1948 Universal Declaration of Human Rights. In tacit reprimand of those who would privilege civil and political rights over economic, social, and cultural rights -- or vice versa -- Benedict reaffirmed the 60-year-old decision to intertwine those rights:
[E]fforts need to be redoubled in the face of pressure to reinterpret the foundations of the Declaration and to compromise its inner unity so as to facilitate a move away from the protection of human dignity towards the satisfaction of simple interests, often particular interests. The Declaration was adopted as a 'common standard of achievement' (Preamble) and cannot be applied piecemeal, according to trends or selective choices that merely run the risk of contradicting the unity of the human person and thus the indivisibility of human rights.
Perhaps most notable was the pope's embrace of "responsibility to protect," the international law concept that each nation-state has the primary duty to protect persons within its jurisdiction and control, but if it does not do so, the international community as a whole has a duty to protect those persons against, as the pope put it, "grave and sustained violations of human rights, as well as from the consequences of humanitarian crises, whether natural or man-made." Use of means permitted by the the law of the U.N. Charter is not "an unwarranted imposition or a limitation of sovereignty," the pope maintained, for "it is indifference or failure to intervene that do the real damage." Some approach the "responsibility to protect" with skepticism, wondering whether the energy spent on pushing a new concept with a catchy acronym -- R2P -- might be better spent on working to strengthen the U.N. Security Council and other pre-existing mechanism that in the end would have to effect any such intervention. I'm among those skeptics, so too José Alvarez, Columbia law professor and immediate past president of the American Society of International Law. Despite disagreement on means, however, we all agree on the ultimate goal, greater enforcement of human rights. And so yesterday's strong statement in support of that objective, from one of the globe's premier norm-shapers, is welcome.
As expected of a site concerned with international law, policy, and practice, we at IntLawGrrls typically train our focus on violence abroad. How can we not, given the state of our world? (Just 2 of today's Washington Post headlines: "Car Bombs Kill at Least 80 in Iraq," "Pakistan Truce Appears Defunct: Insurgents Strike Police, Troops; At Least 44 Die.") Yet a journey Midwest this month reminded that attention ought to be paid too to violence at home. The same 4th of July parade that featured antiwar marches by Code Pink & Co. also was marked by the somber marching of Evanston High School's football team and cheerleaders around a car bannered "In Memory" -- a dignified tribute to their teammate Darryl "Shannon" Pickett, 17, shot dead days earlier in the suburban city just north of Chicago. Meanwhile, in Chicago, 34 public school students have been killed since the beginning of the 2006-2007 academic year -- a number said to be greater than that of Illinois servicemembers killed in Iraq. The most recent victim was Schanna Gayden, a 13-year-old honors student and basketballer shot dead June 25 at a playground. Things proved no better on return to the Bay Area: Last week homicides in Oakland averaged 1 person a day. The total for the year stands at 64, 8 fewer than the same time last year. Across the bay in San Francisco, homicides have spiked 20% this year; the 54th victim is San Franciscan Demetrius Maybums, 19, fatally shot while driving at 3 in the afternoon July 9. As with so many of these incidents, "[n]o arrests have been made. " Much bandied about in human rights these days circles is "responsibility to protect" -- indeed, those in the know refer to the concept by its acroynm, RTP. One wonders about claims to a global responsibility to which states have not assented by means of binding treaty and whose status as a norm of customary international law has yet to be proved. Nonetheless, one can say that countries ought to turn the concept inward -- to endeavor mightily to protect their own even as they profess to look out for the rest of the world.
It's IntLawGrrls' great pleasure to welcome Linda A. Malone (left) as today's guest blogger.
the Rights of the Child for the American Bar Association, and she received the Millennium Award of the Virginia Women's Bar Association in 2000 for her contributions to women's rights.
