School of Politics and International Studies

Responsibility to Protect Student Journal

R2P is Unable to Protect the Stateless; It Is Time for the United Nations Security Council to Step Up

By Dimitra Protopsalti and Timothy Lionarons

Dimitra and Timothy are Master’s students at Leiden University in the Netherlands, currently enrolled in the two-year Advanced Master’s programme lnternational Relations and Diplomacy. This Master’s programme is taught in collaboration with the Clingendael lnstitute. @DProtopsalti 

 

The United Nations (UN), established in 1945 to promote world peace, instated the Responsibility to Protect (R2P) in 2005 to shield humankind from mass atrocities. However, the shortcomings of R2P are a product of its exclusionary nature. The UN, and subsequently the R2P, fail to protect an approximated 10 million of the world population: the stateless. R2P’s reliance on the states’ notion of citizenship has revealed a weakness in protecting the stateless. The Turkish invasion of the Kurdish region of Syria demonstrated exactly how the United Nations Security Council (UNSC) was unable to safeguard those most in need. Hence, it is vital that the UNSC broadens the inclusiveness of the R2P in order to protect stateless peoples.

 

R2P and the Problematic Interpretation of the UNSC

Contrary to humanitarian intervention, R2P places the primary responsibility to protect citizens from genocide, war crimes, crimes against humanity and ethnic cleansing on the state itself, in accordance with Pillar I. If a state is unable or unwilling to provide this protection, it is encouraged and pressured by the international community through both aid and sanctions (Pillar II). If the aforementioned measures still do not suffice, Pillar III entails the responsibility of the international community to intervene militarily.

When discussing the necessity to intervene in conflict-stricken states, the UNSC tends to refer to and rely heavily on a state’s primary responsibility to protect. All statements and resolutions by members of the UNSC since 2011 have emphasized Pillar I responsibilities and, by extension, have understated Pillars II and III that denote international responsibility. This is because international responsibility can cause infringement of state sovereignty.

However, sovereignty grants independence and inalienable rights that enable a state to determine who is granted citizenship and, by extension, the right to protection. The stateless, by nature, are deprived of citizenship and hence fall between the cracks of protection by both the state in which they reside and the international community.

 

Left to Their Own Devices: The Kurds, the Rohingya and the Bidoon

The Turkish invasion of Kurdish-occupied North Syria once more underlined the R2P’s inability to protect the stateless. With president Trump’s decision to withdraw American troops from the Rojava region, Turkey was given free rein to set up a so-called ‘safe zone’ in Syria. This posed a direct threat to the Kurdish population of the region, yet their cries for help were unheard. The largest stateless population in the world was left subject to the Turkish government – the same government that deems the Kurds and any affiliated political organizations to be terrorists of nature. What ensued was the killing of more than 70 individuals and forced displacement of 300,000 Kurds from the region.

Similarly, the Rohingya, residing in the Rakhine State of Myanmar, have been systematically targeted by the Myanmar government. As a result of R2P’s failure to protect the stateless, many died and thousands were forced to seek refuge in Bangladesh. As of 2017 Bangladesh counts an estimated 900,000 Rohingya refugees.

In Kuwait, the stateless Bidoon population (“bidun jinsiyya”, meaning ‘without nationality’) suffers the same fate as the Kurds and the Rohingya. They, too, are devoid of basic human rights and the protection against crimes as underlined in R2P.

These examples are often accompanied by vocabulary signalling genocide and/or ethnic cleansing. President Trump justified the invasion in North Syria as a process of “cleaning out” the region, whilst the Myanmar government initiated “clearing operations” against the Rohingya. The Rohingya were characterized as “roaches” to be “exterminated” and the Bidoon were deemed “illegal residents” by the Kuwaiti government. History has demonstrated that all too often such language results in atrocity as populations become stripped of their humanity.

Still, R2P fails to include the stateless in its protective framework.

 

Intervening to Intervene: A More Inclusive R2P

To prevent these conflicts from escalating further and resulting in atrocities which violate R2P principles, the UNSC must take immediate action. Specifically, the UNSC ought to adopt a new resolution which foresees the protection of all individuals within a state, regardless of their (lack of) citizenship. The final responsibility and decision to intervene lies with the UNSC. Yet, the UNSC has the ability to veto proposed R2P interventions and has done so in the past. Thus, it is critical that the UNSC demonstrates its ability to act as a unified actor and that Member States set aside personal interests to protect all of humankind. By adopting a new resolution that includes the responsibility to protect all people residing within the borders of a state, not just those granted citizenship, the UN will be able to prevent the stateless from falling between the cracks of R2P protection by the state and the international community. This enables Turkey-Syria, Myanmar, and Kuwait to be held accountable for their negligence to protect the Kurds, the Rohingya, and the Bidoon, respectively.

If the UNSC decides not to adopt the amendment, the remaining member states of the United Nations General Assembly (UNGA) should invoke Resolution 377, also known as the ‘Uniting for Peace Resolution’, to proceed to its adoption without the consent of the UNSC. Under the Charter, this resolution allows the UNGA to take collective action in order to protect and maintain international peace and security if the UNSC fails to do so. In this case, it enables the UNGA to protect the stateless.

To reiterate, we have proposed two distinct manners in which a new resolution can be adopted to ensure the inclusion and consequent protection of the stateless, by complementing the existing R2P regime.

 

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COVID-19 and the Responsibility to Protect Rohingya Refugees

By Amber Smith and Tom Welch

Amber is a PhD candidate at the University of Lincoln Law School and her thesis is on TWAIL, R2P and Regional Organisations. @amberamelismith

Tom is a PhD candidate at the University of Lincoln Law School. His thesis focuses on the relationship between vulnerable and displaced populations and the legal regimes that ostensibly seek to protect their rights. @TomWelch94

 

On 1st April 2020, the Global Centre for the Responsibility to Protect issued an atrocity alert special issue on COVID-19. This alert noted that COVID-19 would have particularly adverse implications for the ‘70 million people forcibly displaced by conflict, persecution and atrocity’, many of whom currently live in conditions which leave them vulnerable to the coronavirus.

Residing in a refugee or IDP camp is a condition which increases vulnerability to COVID-19, particularly in overcrowded and unsanitary camps which lack medical facilities and the ability to maintain social distancing, much like Cox’s Bazar in Bangladesh. Currently, over 900,000 Rohingya refugees reside in Cox’s Bazar after fleeing persecution and genocide by the Myanmar military. The Institute on Statelessness and Inclusion notes that whilst those living under refugee conditions were already in a crisis before the pandemic, COVID-19 has further highlighted structural inequalities. There are currently no intensive care medical facilities  in any of the camps in Cox’s Bazar, nor are there adequate means by which to clean hands or socially distance, both of which are vital for protection from COVID-19.

The Global Centre for the Responsibility to Protect noted two factors in a joint letter to Prime Minister of Bangladesh Sheikh Hasina which are placing Rohingya lives at greater risk. The first factor includes Internet access for Rohingya within the camps, which is currently restricted. This limits the spread of safety information, ultimately causing discriminatory healthcare outcomes. The second factor includes plans to install barbed wire fences around the camps for the purposes of restricting the movements of the Rohingya and confining them, rather than protecting them. The letter states this will create ‘obstructions to humanitarian access’, which is largely counterproductive for refugee protection. This form of structural violence is likely to cause disproportionate death tolls within camps.

Myanmar’s government has also used the pandemic to further discriminate against the Rohingya by closing borders between Rakhine State and Bangladesh, which has resulted in Rohingya refugees being pushed back into the sea. Refugee camps at breaking point, coupled with the lack of responsibility for vulnerable refugees at sea, raise serious questions about the responsibility to protect.

Since its conception, prevention has been cited as one of the most important dimensions of R2P. The Global Centre for the Responsibility to Protect notes that COVID-19 has increased the risk factors for mass atrocity in divided and fragile societies which suffer from identity-based conflict. Therefore, an opportunity to prevent possible future atrocity has arisen: to protect the Rohingya who still reside within Myanmar and to extend prevention efforts through international assistance to Rohingya residing in refugee camps. This could be achieved through pillar two of R2P’s three-pillar strategy, that is to once again encourage Myanmar to recognise its primary responsibility to protect the Rohingya. Using pillar two could improve humanitarian assistance measures through increased aid efforts and improved access to medical facilities within the camps.

A critical barrier to the successful implementation of R2P in these circumstances is the refusal of many Southeast Asian states to engage with protection mechanisms which encourage the greater safety of displaced populations living within their borders. Neither Bangladesh nor Myanmar have signed or ratified the Refugee Convention, its Protocol, nor the Statelessness Conventions, on the ground that the protections and responsibilities outlined within such documents are Eurocentric and irrelevant to the Asian experience of refugeehood.

Whilst such excuses have been largely dismissed as either poor attempts to absolve state responsibility toward vulnerable and indigent populations, or as insidious efforts by oppressive regimes to continue advancing anti-minority agendas, there is some merit to the arguments posed by Southeast Asian governments. The growth of internal Rohingya populations in Bangladesh has already had a severe impact on local unemployment rates and has resulted in considerable environmental degradation. As a densely populated low-income food deficit nation, Bangladesh lacks the infrastructure to successfully integrate its large Rohingya population. Without the guarantee of considerable external assistance, the expectation that Bangladesh should sign and ratify the various Refugee and Statelessness Conventions at this time is largely infeasible.

Therefore, to encourage alignment between the values espoused by the wider refugee protection regime and those of Southeast Asian nations, a responsibility-sharing mechanism must be introduced to ensure greater collective liability for displaced populations amongst global actors.

The Global Compact on Refugees (GCR) is demonstrative of the movement toward a refugee protection regime predicated on the ideals of collective action and international solidarity. Non-binding agreements such as the GCR can play a pivotal role in the development of normative legal concepts in international law by delineating the technical standards by which existing law can be applied or by taking the initial step in the norm-making process. The GCR’s non-binding nature thereby functions as a “nodal point” in the endeavour to link refugee-hosting states, such as Bangladesh, to the wider refugee protection regime.

The GCR presents certain deficiencies, including a failure to examine in detail what is meant by the term ‘responsibility-sharing’ and to delineate the precise ways in which private sector engagement and resettlement opportunities might take shape. Whether the GCR is fit for purpose in a post-Covid environment is a question yet to be answered.

Much work is still required to protect vulnerable populations, an endeavour that is made more complex given current global circumstances. We propose that a response through R2P’s second pillar, with a focus on the need to ensure greater inter-state solidarity, is a means to protect the Rohingya from further abuse and mistreatment.

 

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Review: Education of an Idealist by Samantha Power

Eleanor Smith

Eleanor Smith is a postgraduate student, studying MA Global Governance and Diplomacy at the University of Leeds with a special interest in atrocity prevention. She previously graduated from the University of Hull with a BA in War and Security Studies. @eleanorfs_

 

Having heard Samantha Power discuss her experience in the White House and her commitment to multilateralism on “Pod Save the World,” a podcast run by two of her former Obama administration colleagues, I was keen to read Power’s work and learn more about her.

Power’s, The Education of an Idealist, also appealed to me having previously read William J. Burns’, former US Secretary of State, The Back Channel. When reviewing The Back Channel, I commented on how unusual it was as a behind the scenes insight into the usually shrouded world of diplomacy. The Education of an Idealist goes one step further. Power provides an insight not only into the world of diplomacy but into the path she took to get there: from her home in Ireland, through losing her father, her life as a journalist in Bosnia, then her journey on to the White House and eventually the UN. Power’s book is therefore noteworthy not only as a window into the life of a foreign policy insider, but also as a guidebook for 20-somethings looking out into the world of work.

 

Power’s Journey: Outspoken Critic to Policy Insider

Beginning her career very much as a foreign policy outsider, a sports reporter for her college newspaper, Power first became interested in foreign policy after watching the now infamous ‘Tank Man’ episode in Tiananmen Square. Moving quickly into foreign policy, after interning at the Carnegie Endowment, Power went on to work as a freelance reporter in Bosnia reporting on the siege of Sarajevo and the Srebrenica massacre.

Power’s time in Bosnia and her anguish over America’s laissez faire attitude towards human rights abuses fuelled her writing, including her Pulitzer prize winner A Problem from Hell, as well as her advocacy. After returning from Bosnia and attending law school, Power established herself as a frequent critic of US foreign policy and their all-in or all-out approach.

Unsurprisingly, this brought her to the attention of then Illinois Congressman Barack Obama. Power worked alongside Obama as a policy advisor and later became Director of Multilateral Affairs during his first term, and the US Ambassador to the UN in his second term.

During her time in the Obama administration, Power was not untouched by controversy; each of which she discusses with complete candour. First, her inexperience in the public eye showed itself in a mistimed and poorly considered “throwaway” comment on Hilary Clinton, Obama’s competitor for the Democratic nomination. Power was forced to resign from his campaign. Years later, Power’s close friend and former US Secretary of State Richard Holbrooke would organise an in-person reconciliation with Clinton as a wedding present.

 

Advocacy Fuelling Policy

Once within the White House, Power’s actions in calling for intervention in both Libya and Syria became controversial. As Director of Multilateral Affairs in 2011, when conflict broke out in Libya following the Arab Spring, Power advocated for action from within the US administration. While generally supported at the time, the NATO intervention in Libya has since been heavily criticised. In fact, Obama has discussed the failure to produce an exit strategy in Libya as one of his greatest mistakes in office. Despite this, Power stands by her position.

When faced with further consequences of the Arab Spring in Syria, at the very beginning of her UN tenure, Power attempted to advocate for similar action from the UN. She describes in great detail her interactions with her Russian counterpart, Vitaly Churkin, and her frustration at the failure of Congress to authorise US military action; mirroring what she had seen in Bosnia almost two decades earlier. Power even goes so far as to suggest that US unilateral intervention may have gone ahead if it wasn’t for the presence of UN chemical weapons inspectors in Syria. The failure to intervene has, of course, since become an even greater controversy than the intervention in Libya.

Interestingly, at no point does Power discuss either the Libya intervention, or her hopes for US foreign policy, in terms of the principle of Responsibility to Protect, despite Libya being described as a turning point for the principle. It’s unlikely that this omission is accidental, Power after all was an advocate for US preventative and military action prior to the 2005 World Summit. It is more likely Power chose not to introduce such a principle to her readers when writing her memoir or, perhaps, she has simply grown used to avoiding reference to the principle which remains unevenly implemented, controversial or misunderstood.

 

Life Lessons from a UN Ambassador

Beyond her insights into the foreign policy formulation of the Obama administration and foreign policy execution at the UN, Power’s book provides valuable life lessons. While some of these lessons feel particularly relevant for me, as a young woman hoping to follow a similar career path, some are equally as relevant for those pursuing other career trajectories.

On advocacy, Power discusses the importance of “shrinking the change”; any large change is brought about through incremental efforts by dedicated groups of people across weeks or years. This quickly became her team’s mantra and Obama followed suit with the similar phrase ‘better is good’. Additionally, based on her experience in the UN, she advises her readers to meet people where they are. She also urges readers to address the reasonable concerns of critics, provide nuanced responses and work with them instead of against them.

In terms of greater valuable life lessons, Power talks about the importance of silencing your ‘Bat Cave’ – that space in your brain where self-doubting thoughts frantically scramble for attention. More often referred to as ‘Imposter Syndrome’, Power’s analogy is relatable to many, including me. Power’s advice is to silence those ‘bats’ by sharing your feelings with others.

Power also links her ‘bats’ to another life lesson: “Never compare your insides to somebody else’s outsides”. Power describes the revelation that her female colleagues in the White House also struggled with falling into the same comparison trap and explains how much she gained from reaching out to other women within the administration, both personally, and professionally. Recognising the limited number of women within the White House, Power began “aggressively recruiting” women to her department and inviting them to her ‘Wednesday Group’ to share and support each other.

‘Lean On’ is Power’s greatest lesson – without it she says her career would have been impossible. Adapted from Sheryl Sandberg’s ‘Lean In’, Power describes with great feeling the importance of her friends, family members and colleagues who helped in numerous ways; from silencing her inner critic, to caring for her children and supporting her move from Massachusetts to Washington and then to New York to take up her UN position.

 

Final Impressions

More than just an account of life in the Obama administration and at the UN, The Education of an Idealist is a guidebook for navigating life as an advocate, writer, mother, and woman in a position of power. It is as valuable for its political relevance as it is for its honesty and the life-lessons it provides. Power describes her relationship with Vitaly Churkin as evocatively as she describes her memories of her father, experiences in Bosnia and her heart break in North Africa, where her convoy was responsible for the death of a small child. The lessons she draws from her experiences are applicable in numerous aspects of life.

For a 23-year-old woman hoping for a future in advocacy and atrocity prevention, this book is exceptionally powerful. Power’s experience in the White House and at the UN, and the lessons she has learned trying to balance her idealist nature with the pragmatism required to succeed in governance, are enlightening. There is much we can learn from Power and translate to our own lives.

 

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What are we to do with the Romanian memory of the Holocaust?

Marius Ghincea

Marius Ghincea is a Romanian Ph.D. Researcher at the European University Institute in Florence and a Senior Teaching Assistant at Johns Hopkins University, Bologna. He previously studied at the University of Bucharest, in Romania.

 

Half a century ago, in his memoir of his Holocaust years in the Sighet ghetto and at Auschwitz, Elie Wiesel, the Nobel Peace Prize laureate, was saying that “to forget would be not only dangerous but offensive; to forget the dead would be akin to killing them a second time.” Erasing the memory of the past, of our reprehensible deeds, of the crimes of our ancestors, will not make us better beings. It will only make us more ignorant, ready to repeat again and again what we now consider improbable, even impossible. Because, as Wiesel put it, “in the end, it is all about memory, its sources and its magnitude, and, of course, its consequences” on how we, as individuals and as a society, perceive our past, build and rebuild our identity. The memory of the past shapes our existence, contributes to the way we perceive social reality and helps us to shape our vision of the future we want for ourselves and our descendants.

Accepting the past as it was, preserving and passing on the memory of the Holocaust, and commemorating the Jewish, Roma, homosexuals, and other victims of this deliberate mass extermination process is a sign of maturity, a sign the a society has overcome its cultural and nationalistic infancy. It shows that a society is ready to accepts its reprehensible deeds of the past and can finally overcome them. Recognising the misdeeds of the past is only the first step in a long road towards a more inclusive, tolerant, accepting, and free society that embraces cultural, ethnic, and social differences as catalysts for progress and development.

Half a century ago, the Romanian state was engaged in a systematic process of mass extermination of the Romanian Jewish population, of the Roma and other ‘undesirable’ people. Almost half a million people were exterminated through barbaric methods by the Nazi-allied military dictatorship of Ion Antonescu. Particularly revealing is the fact that Romania was the only ally of Nazi Germany who exterminated its own Jewish population and other discriminated groups. If in the rest of Europe the general practice was that of deportation of the local Jews to German extermination camps, the Romanians were the only German allies who built their own in the occupied territories of Transnistria, in current-day Republic of Moldova.

The Romanian society still avoids facing the reality of its own past and the common culpability for the extermination of Jews and Roma people during the Antonescu regime and the national-legionary state. Things are on the right track, though. After decades of refusing even to recognize the role of the Romanian state in the extermination of hundreds of thousands of Jews and Roma, the Romanian state finally recognises the reprehensible facts of the past and has adopted public policies and programs to protect the memory of the Holocaust and support Holocaust survivors and their descendants. However, far too many members of the Romanian cultural elite, as well as significant parts of the public, refuse to recognize or even learn about the Romanian Holocaust. From members of the Romania Academy that evoke anti-Semitic messages to political leaders who deny the very existence of extermination on Romanian territories, the signs that the Romanian society has not yet accepted its own past abound.

Anti-Semitism and Holocaust denialism are rarely chastised and moral, social, and legal penalties are often delayed. Public reactions are weak and limited to a liberal-progressive core or come from state institutions that are rather driven by a desire to prove to Western partners that the state is reacting to anti-Semitism. Sixteen years have passed since the publication of the Elie Wiesel Report on the Holocaust in Romania and the National Institute for the Study of the Holocaust in Romania still needs to fight against the most primitive forms of denialism and anti-Semitism. It even needs to fight for a national museum of the Holocaust and the history of the Romanian Jewry.

 

The memory of the Holocaust: a more inclusive history and identity

Accepting the past and recognizing the Holocaust in Romania involves reconstructing the historical narratives that are promoted in mass education, culture, and society at large. This is not only limited to the reprehensible action of the national-legionary state and the military dictatorship of Ion Antonescu, but more broadly to periods before and after the Holocaust. Recognition of the Holocaust entails not only rewriting history textbooks to include adequate information and acknowledgement of the phenomenon, but also entails recognising the structural and long-lasting denial that has characterised public historical narratives for much of its postwar history. Additionally, the memory of the Holocaust must be integrated into the identity framework of the Romanian nation, together with a strong condemnation of the anti-Semitism that defines Romanian nationalism. The dichotomous identity relationship between Romanians and Jews, built on differentiation between Romanians and Jews as belonging to distinct political and social communities, inspired by 19thcentury German romantic nationalism, must be taken into account and acknowledged. Jews born in Romania, especially those with long, historical roots in the Danubian Principalities, are and have always been part of the Romanian culture, making great contributions to the development of the country, its economy, culture, and society.

Defining the Romanian Jewry as not belonging to the Romanian nation by using an ethnic identity language to the detriment of a civic one has represented one of the catalysts that allowed for their demonization and the construction of narratives based on a so-called cleavage between Romanians (good) and Jews (bad). Therefore, protecting the memory of the Holocaust does not only consist in bureaucratic measures in schools and public institutions. It requires a redefinition of the national historical narratives and people’s conception of what it means to be Romanian. Romania must follow the German model, which has restructured its entire identity by integrating and recognising the crimes of the Nazi regime as part of its national identity narrative.

The preservation of the memory of the Holocaust should not be a perfunctory activity undertaken to please Western partners. It should be a well-thought and systematic engagement with people’s own history, their deeds and misdeeds, which should produce changes in the way they understand themselves in historical context, how they seek to overcome their past and, more importantly, how they can learn to live together with those they see as ‘the other’.

The memory of the Holocaust is a lesson for the future, not only about the past. In a world increasingly divided, with flows of refugees and increasing social conflict, the proper acknowledgement of our past can become the beacon driving our future.

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Book Review: “Responsibility to Protect and the Failures of the United Nations Security Council”

By Blake Lawrinson 

Blake Lawrinson is a PhD researcher in the School of Politics and International Studies at the University of Leeds. His thesis examines the changes and continuities in the UK’s commitment to human protection from mass violence and atrocity crimes (1997-2020). His research is funded by a Leeds Doctoral Scholarship (2017-2020).

 

Book Review: “Responsibility to Protect and the Failures of the United Nations Security Council” by Patrick M. Butchard. Oxford: Hart. 2020. 308pp. ISBN: 9781509930814. 

‘Responsibility is a continuum, and it does not cease to exist with failure’ (p.269)

In the event of UN Security Council deadlock and paralysis, should we simply give up on implementing the responsibility to protect (R2P) populations from atrocity crimes? The UN Security Council’s response to the crisis in Syria (2011-) encapsulates this dilemma having failed to establish common ground on action after almost a decade of conflict. In Responsibility to Protect and the Failures of the United Nations Security Council, Patrick Butchard argues that R2P implementation does not end with such UN Security Council failure, but rather that this legal responsibility can transfer to other actors through a ‘tertiary responsibility to protect’ (pp.3-4).

This argument is constructed through a comprehensive analysis of the legality of alternative forms of forcible and non-forcible coercive measures beyond the UN Security Council. This is achieved by first, addressing the historical context and establishing the legal framework for the tertiary R2P (chapters 1-3); and second, examining the legality of forcible and non-forcible coercive measures and their implementation by other actors (chapters 4-6). According to the author, Article 2(4) of the UN Charter on the prohibition of the threat or use of force and Article 2(7) on non-intervention in the domestic affairs of a state are fundamental to locating the existing legal debates on intervention through the UN Security Council. Pre-R2P, debates focused on the legality of unilateral humanitarian intervention, which was witnessed more notably during the 1999 NATO-led action in Kosovo. The author is quick to debunk this ‘myth of humanitarian intervention’ (p.7), given the lack of support in both state practice and opinion juris (p.28). With unilateral humanitarian intervention failing to provide a credible legal avenue for protecting populations from atrocity crimes, focus then shifted to a reconfiguration of sovereignty as a responsibility through the R2P.

The author suggests that R2P has two core responsibilities contained in paragraphs 138 and 139 of the 2005 World Summit Outcome Document. The first relates to a state’s primary responsibility to protect its population from the four crimes of genocide: war crimes, crimes against humanity, and ethnic cleansing, and the international community’s responsibility to assist a state in preventing these crimes (pillars I and, respectively, pillar II). The second concerns the responsibility to take ‘timely decisive action’ through the UN Security Council to protect populations from these four crimes (pillar III) (p.3). But what happens when the UN Security Council fails to take such timely and decisive action? Does R2P simply end with UN Security Council inaction? According to the author, just because the UN Security Council fails this does not necessarily rule out legal R2P action from other actors as ‘there is no reason why it should not continue’ (p.4, emphasis in original). Such action beyond the UN Security Council thus constitutes a third responsibility in the form of the tertiary R2P.

Given that legal responsibility for the implementation of forcible and coercive measures under the R2P lies first and foremost with the UN Security Council, the first step in acting beyond this requires a connection between R2P and maintaining international peace and security (p.55). This is essential given that the R2P is not a legal doctrine, whilst maintaining international peace and security ‘is enshrined in international law – in the UN Charter – and brings with it the force of a duty, and not just an aspiration, to do something’ (p.266). Crucially, the author argues that the UN Security Council ‘does have a legal obligation to maintain international peace and security and, by extension, to protect populations from atrocity crimes covered by the R2P framework’ (p.84, emphasis added). This is a particularly convincing argument, since it establishes a potential legal avenue for actors to implement the R2P when the UN Security Council has failed (p.55). The only potential drawback in this instance is that this legal action would require actors to make a connection between R2P and maintaining international peace and security.

By establishing that there is a legal opportunity for the implementation of a tertiary R2P when (1) respecting the territorial integrity and political independence of a state; and (2) ‘it is consistent with the purposes of the United Nations’ under Article 2(4) (p.124), the author shifts the focus to considering the legal implementation of non-forcible coercive measures. This centres largely on the ‘doctrine of countermeasures’ when the state in question has committed atrocity crimes (p.125). Legal countermeasures may include economic sanctions as witnessed in the case of Russia following the annexation of Crimea in 2014, and in Myanmar in 2017 following the outbreak of mass atrocities (pp.172-178). An obvious limitation here, and one rightly acknowledged by the author, is that such legal countermeasures are only available after a state commits such acts. Moreover, since such actions do not involve direct forcible action, it is difficult to envisage whether this would help to directly prevent mass atrocities in the same way as timely and decisive action through the UN Security Council.

The real crux of the argument is addressed in the final chapter on the those responsible for implementing forcible and non-forcible coercive measures through the tertiary R2P. Two actors in particular are identified as having both the legal competence and capability for implementation. The first is the General Assembly, which has the power to implement the tertiary R2P through recommending the use of force. Such powers of recommendation are captured by the Uniting for Peace Resolution (1950), the use of which has been widely debated (Carswell, 2013; Kenny, 2016; Melling and Dennett, 2018; Nahlawi, 2019). However, there are three important qualifications on this power. First, this has to remain consistent with the principles outlined in Article 2(4) of the UN Charter; second, the General Assembly can only implement the R2P through establishing its relationship with the maintenance of international peace and security; third, any such recommendation requires a two-thirds majority in the General Assembly (p.230). Whilst acknowledging that the General Assembly ‘provides the best institutional legitimacy for such action’ (p.264), commanding the necessary political will and consensus are significant barriers to the implementation of the tertiary R2P through the General Assembly.

That said, the General Assembly does have the potential to implement non-forcible coercive measures, such as sanctions, by drawing on the doctrine of countermeasures. This again, however, is guided and limited by existing international law. Regional organisations, recognised in Chapter VIII of the UN Charter, are the second actor with the legal competence to implement the tertiary R2P. Whilst legal forcible measures without prior UN approval would be illegal, the author finds room through the doctrine of countermeasures, which ‘provides a further legal basis for collective action’ (p.240). Again, however, the use of such measures requires consensus and political will from regional organisations to bypass the UN Security Council. This in turn has the potential to act as a major impediment to implementing the tertiary R2P.

The author openly acknowledges that the book ‘has not sought to offer simple solutions to complex problems’ (p.265). The author convincingly argues that there is in fact legal space to implement a tertiary R2P amid UN Security Council deadlock and paralysis. This is by no means an easy task, and to the author’s credit, they do not shy away from this. Rather, they provide an original contribution to contemporary debates on the implementation of the R2P in the context of UN Security Council politics. The real strength of the argument is how it does not simply cover the same ground as existing debates, such as the wealth of literature on the responsibility not to veto (Gifkins, 2012; Webb, 2014; Essawy, 2020), but attempts to set out a new trajectory for R2P implementation in the face of the same deadlock and paralysis witnessed more recently on Syria. Notably, the author recognises from the outset the importance of legality and draws on a wealth of knowledge of international law and the R2P to provide a comprehensive, and convincing, account on the alternatives to R2P action beyond the UN Security Council.

The real appeal of the book is how the author is able to summarise and apply detailed legal debates to practice on R2P. Whilst the author acknowledges their ‘disappointment’ that such a book is required given that ‘the body tasked with maintaining international peace and security too often fails to uphold its responsibilities’ (p.265), they do justice to the topic through providing a foundation for considering the legality of R2P action beyond the UN Security Council. This is an original account of such an important issue in the field and should be key reading for students, academics, and practitioners across the spectrum hoping to continue an exploration of legal alternatives for R2P implementation in the face of UN Security Council failure.

 

References

Carswell, A.J. (2013) ‘Unblocking the UN Security Council: The Uniting for Peace Resolution’, Journal of Conflict and Security Law, 18(3), pp.453-480.

Essawy, R.M. (2020) ‘The Responsibility Not to Veto Revisited under the Theory of ‘Consequential Jus Cogens’, Global Responsibility to Protect, Advanced Access.

Gifkins, J. (2012) ‘The UN Security Council Divided: Syria in Crisis’, Global Responsibility to Protect, 4(3), pp.377-393.

Kenny, C. (2016) ‘Responsibility to recommend: the role of the UN General Assembly in the maintenance of international peace and security’, Journal on the Use of Force and International Law, 3(1), pp.3-36.

Melling, G. and Dennett, A. (2018) ‘The Security Council veto and Syria: responding to mass atrocities through the “Uniting for Peace” resolution’, Indian Journal of International Law. 57(3-4), pp.285-307.

Nahlawi, Y. (2019) ‘Overcoming Russian and Chinese Vetoes on Syria through Uniting for Peace’, Journal of Conflict and Security Law, 24(1), pp.111-143.

Webb, P. (2014) ‘Deadlock or Restraint? The Security Council Veto and the Use of Force in Syria’, Journal of Conflict and Security Law, 19(3), pp.471-488.

 

 

 

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Leave the podium 

By Amy Ramswell

Amy Ramswell is a law student at the University of Leeds. She first started writing poems at the start of university, to escape the aesthetic numbness of legal writing. She tends to keep them to herself, but shared this one because she feels strongly about the subject matter.

Leave the podium 

Recently
It’s been so hot I can’t cope
Without diet cokes with lashings
Of ice and sun cream over skin
the colour of statues;
and just as pockmarked.

But today it poured,
Pelting the earth with something:
Soft as cake mix,
Hard as tears,
transparent as pig intestine over sausage meat.
I got caught
As the heavens tilted on their axis
And I prayed it would stop, leave us in peace

But the rivers suckled from the sky
And the grass we’d trampled sprang up from the dead.
Even the loudest lost their voice
Under the roar of a lion that had been chained for a very long time.

In a puddle i saw my reflection
Mopping at the cracks in the road,
And as I watched myself drown
Down the valley, seeping into the tarmac
and then the sediment below,

I realised it was about time
we purge the veins of this old town
& repack this stagnant soil,
So that the man at the bottom of the hill doesn’t have to fight the current to meet us.

when the sun comes out, we’re closest
Unless we dig down in to our hearts
And rearrange this country’s furniture.

*This poem is part of our Call for Conversations project which aims to broadcast diverse experiences through creative works. In solidarity with the Black Lives Matter movement, we’re looking to open conversations about social issues affecting communities globally.

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Polished Me Like a Jewel

Text and photography by Emily Faux

Two tonnes of human hair are currently on display at the Auschwitz Museum. Hair was shaved from the corpses of prisoners selected for immediate death in the gas chambers and shaved off prisoners selected for labour as soon as they entered the camp. Following Hitler’s efficient, no-waste policies, the hair was gathered into 20 kg bales and sold to German firms to serve various purposes. Some victim’s hair was used to make ignition mechanisms in bombs, other’s for ropes, cords and mattress stuffing. This was the fate of one and a half million women, men and children over five years in Auschwitz alone. Inspired by my recent visit to Auschwitz-Birkenau, I wrote this poem as a fictional account following a young Polish Jew named Anne, who’s hair was used to manufacture socks after her age and gender rendered her unsuitable for work and sentenced to immediate death.

 

 

 

 

 

   

 

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Disaggregating the “peace vs. justice” debate: breaking the silos and moving towards greater coherence

By Jacqueline J.Y. Cho

Jacqueline Cho is currently interning with the African Union Partnership Team at the United Nations, and was an intern at the Office of the United Nations High Commissioner for Human Rights at the time of writing. She is also working as a research assistant for Dr Gyda Sindre and helps coordinate the Politics After War Research Network. She recently graduated with a BA (Hons) degree in Politics and International Relations from Emmanuel College, University of Cambridge in 2018. Her areas of interest include conflict prevention and resolution, African politics and refugee studies. 

 

The question of how to deal with a difficult past is one that confronts every society emerging from a dark history. Since the mid-1980s, many such societies have chosen to address the legacies of pervasive human rights abuses, often with extensive international support. The pursuit of justice, with dominant forms being through trials and truth commissions, are said to be in tension with peace; much of the literature has framed this as a question of “peace versus justice” (see Baker, 2001). What is important to note, however, is that in practice, this dilemma is not as stark of a choice as presented and, more fundamentally, the notions of peace and justice that are in play in these settings are questionable. The current hegemonic understandings of both peace and justice are inadequate as guiding principles of policies concerning ex-combatants. In particular, the emphasis on ‘extraordinary’ forms of violence shapes perceptions of justice in a way that marginalises gender and structural injustice, which may undermine even the most minimal objective of these policies: the cessation, or at least the reduction, of direct violence. International actors should refrain from the tendency to design one-size-fits-all policies targeting ex-combatants with a preconceived end-goal of either peace or justice. Rather, the policies should be context-driven, which may take very different forms from case to case and involve addressing the structural injustice that preceded and contributed to the conflict.

Emergence of the dilemma

The question of whether investigating and prosecuting war crimes may trigger a return to violence traces its origin back to early 1990s as the United Nations began setting up the International Criminal Tribunal for the former Yugoslavia (ICTY) while the Bosnia-Herzegovina conflict was ongoing (Baker and Obradovic-Wochnik, 2016, p.283). Scholarly debate surrounding the issue subsequently framed this tension as a question of “peace versus justice”. What had been an ad hoc problem with the ICTY then became a permanent feature of the international judicial system after 2002, when the Rome Statute establishing the International Criminal Court entered into force. The potential clashes between creating accountability for international crimes through justice measures and laying the foundations for peace concerned not only the leaders who might be disincentivised from making peace if they were indicted for war crimes, but also resonated throughout civil society. One early example of this was the instrumentalisation of ICTY’s findings into politics of ethnized collective narratives, hardening inter-ethnic boundaries and generating tensions.    Continue reading

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The Responsibility to Protect and Sub-Regional Organisations: The Case of The Gambia

By John Bosco Nizeimana

John Bosco Nizeimana is currently a visiting researcher at Georgetown University-School of Foreign Services in the Department of African Studies (Washington DC, US). Bosco holds a Master of Science degree in International Relations from the University of Zimbabwe. He previously worked as full-time Associate Lecturer at the University of Zimbabwe, in the Deptartment of Political and Administrative Studies.  He is a PhD student in South Africa, at Rhodes University, researching the implementation of the Responsibility to Protect norm in Sudan and Libya.

 

The outcome of the December 2016 Gambian presidential elections took the world by surprise. After 22 years in power, Yahya Jammeh was voted out of office. In July 2017, Gambians celebrated Jammeh’s political announcement in which he accepted the election results, conceded defeat, and congratulated the new President, Adam Barrow, promising a smooth transition of power. Jammeh’s decision was applauded worldwide and was seen as the most important step towards democracy in Africa, and in The Gambia in particular, since the country has achieved no peaceful transition of power through national elections since its independence.

Two of the major electoral promises made by Barrow were to reverse The Gambia’s withdrawal from the International Criminal Court and to reinstate the country’s membership of the Commonwealth. Barrow’s promises angered Jammeh who soon after he accepted defeat went against his initial declaration and declared that, ultimately, he was not going to accept the election results. He vowed to fight against what he called “external interference in the politics of The Gambia” and threatened bloodshed if force was used to eject him from office. His declaration was followed by the announcement of a 90-day countrywide state of emergency.

Across The Gambia, there were fears of political unrest, civil war, and massive human rights violations. The UN Security Council, the African Union, and the Economic Community of West African States (ECOWAS) expressed their concern and called for Jammeh to step down. Despite this, Jammeh’s refused to step down, creating a situation that brought The Gambia at the centre stage of global attention.

The situation in The Gambia was of concern to the international community, particularly ECOWAS and the UN.  In his June 10th, 2016, statement, the Special Adviser to the UN Secretary-General on the Prevention of Genocide, Adama Dieng, noted that President Jammeh referred to the Mandinka, an African ethnic group with a strong presence in the Gambia, as “enemies, foreigners, and threatened to kill them one day and place them where even a fly cannot see them”. Dieng condemned Jammeh’s “public stigmatisation, dehumanisation and threats against the Mandinka” and warned about the danger of such statements that can contribute to dividing populations, feed suspicion and serve to instigate violence against communities based solely on their identity. Continue reading

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Land Rights and Eviction: Weapons of Mass Oppression

By Tanveer Jeewa

Tanveer Jeewa is a candidate for a Masters in Public Law studying at the University of Cape Town (UCT). She was recently selected as a Youth Ambassador at the United Nations where she represented South Africa and Mauritius. There she won the Social Venture Challenge and is now a Resolution Project Fellow. She has recently established an NGO known as RefRights. Her team and herself are working on a software application to facilitate assistance to legal aid for refugees in South Africa. She is also a volunteer at the UCT Refugee Rights Clinic. She is interested in specializing in Human Rights law but is open to learning and exploring different avenues as they come.

 

‘The land is the only thing in the world worth working for, worth fighting for, worth dying for, because it’s the only thing that lasts.’ – Gerald O’Hara, Gone with the Wind

Land rights and evictions have, for decades, been used as a means to divide communities. Looking at the cases of Brazil, India, and South Africa where land rights have been used to discriminate on the basis of socio-economic conditions, class, and race, this blog post analyses the legal means through which segregation was achieved and the effects of historical discrimination in land ownership on vulnerable communities today. Land rights and evictions are powerful tools which have been used to promote different agendas, such as overpowering minorities and oppressed populations. Land rights and evictions are also tools which can be disguised as ‘development’. To illustrate the complicated nature of land rights and evictions, this post will firstly look at the legal background of land rights control and eviction in apartheid and post-apartheid South Africa. The situation in India is then considered with regards to land rights per caste. Finally, Brazilian favelas are used as an example of failed land rights of the non-wealthy population.

Evictions in South Africa

Section 26 of the Constitution of South Africa concerns the right to housing, while section 26(3) is most applicable to this essay. Section 26(3) is as follows:

No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

This is normally the point of departure for South African courts when these preside over eviction matters. Case law has lengthily qualified this law, and requirements such as meaningful engagement and alternative housing have been said to impose a positive duty on the state. However, as case law indicates, eviction remains a prevalent issue in South Africa. During apartheid, eviction and restriction of land rights were the most used methods to dehumanise communities of colour. Continue reading

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