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The Responsibility to Protect in Africa: Normative Progress or Sound and Fury Signifying Nothing?

Luc Hinson, University of Leeds, UK

Luc Hinson is a final year student of International Relations and Spanish at the University of Leeds. He is interested in security studies, the RtoP and specifically the RtoP on the continent of Africa.

 

The Responsibility to Protect (hereafter R2P) is a concept heavily contested by a range of scholars including sceptics such as Hehir and Reinhold. For Hehir and Reinhold, the progress it represents is illusionary; by failing to change international law and order it is a continuation of the status-quo. They state that the current form of RtoP has not changed the powers of the UN Security Council (hereafter UNSC), nor has it ascribed any “new competencies or procedural laws” (Hehir, 2013, p. 152). To dispute these claims, I will call upon arguments of varying levels of advocacy including Bellamy, Ralph, Gallagher, Thakur, Welsh and Williams, and dispel the three challenges of RtoP being ‘business as usual’, a “permanency of inconsistency” (Hehir, 2013) and “sound and fury signifying nothing” (2010), whilst acknowledging the limitations of R2P. A further acknowledgement of the limitations of the word count of this essay explains the focus on exclusively sceptics and advocates. In addition to using the arguments preponed by advocates of the RtoP this essay will focus on the role of the African Union (hereafter AU) in implementing and contesting RtoP, and demonstrating how, to this continent R2P represents anything but progress.

To many, R2P is an African concept. Edward Luck stated that “the concept emerged, quite literally, from the soil and soul of Africa” (Williams, 2009, p. 397). Arguably, the R2P was a direct response to the Rwandan genocide of 1994, and a challenge to the inertia of the UNSC to protect civilians where the state was manifestly failing to uphold its Pillar I responsibilities. As Evans noted in 2007, “nearly 60% of the Security Council’s agenda concerned either specific crises in Africa or thematic issues of concern to the continent” (Evans, 2008, p. 189). There is a clear focus on the continent for the UNSC, and therefore R2P carries the most weight in Africa, both in implementation and contestation. It is currently host to several crises where RtoP has been used as a framework of response; in Sudan, Mali and CAR. Additionally, the AU has been “eulogized for preciously enshrining certain principles of R2P in Article 4h of its constitutive act” (Abbas, 2012, p. 109), being the first regional organisation to fully codify ideas of RtoP in its constitutive document.

Ban Ki-moon has stressed the importance of regional organisations. In his 2011 report on the R2P, he stated that “the surest path for advancing the responsibility to protect is through global-regional-sub-regional partnership” (Ki-moon, 2011, p. 13), giving credence to the cascading norm of RtoP and its regional dimension. By pairing the voices of different advocates with the presence of RtoP in AU protocol, direct evidence of the progress of RtoP will be given.

 

Business as usual

The notion of R2P as ‘business as usual’ is based on the belief that R2P has failed to achieve any significant changes to international law. However, the discourse surrounding R2P has achieved significant changes to how intervention is discussed.  Bellamy states that “the key debates now are ones about how best to implement R2P, not about whether to accept the principle itself” (2014, p. 12). Ralph and Gallagher echo this sentiment that “the RtoP is now in the room” (2015, p. 241). Furthermore, the debate surrounding sovereignty has been reconceptualised. Deng wrote in 1996 that “sovereignty carries with it certain responsibilities for which governments must be held accountable” (Deng, 1996, p. 1). Those responsibilities have, with the advent of RtoP, been clarified as protection against the four crimes as identified in the World Summit Outcome Document of 2005 (hereafter WSOD).

Business as usual identifies R2P as a continuation of western-led interventions and imperialism, a criticism pegged to humanitarian intervention (HI). The distinctions between HI and RtoP will be further outlined in “sound and fury signifying nothing”, but it is used here to outline two key points to the argument. Firstly, R2P has seen a shift in who controls the invocation of R2P. Bellamy identified that “U.S. diplomats understand that, owing to lingering concerns about U.S. tendencies toward unilateralism on the use of force, R2P would be better served by the leadership of others” (Bellamy, 2015, p. 174). Secondly, western powers have been met with outcry when attempting to abuse R2P as a justification for the use of force, outside of that outlined in the WSOD, notably when Russia (a P5 member) attempted to invoke R2P as justification to invade Georgia (Ibid, 2014, p. 176). This counters the notion by Hehir that R2P can easily be hijacked by the great powers to further their imperialist agendas, as was possible under the guise of HI.

To further challenge the assertion of R2P as business as usual I point to the normative qualities of R2P and its contestation. Both Welsh and Hofmann have pointed to the usefulness of contestation in the development of a norm. Welsh states contestation “should be seen as part and parcel of normative evolution” (2013, p. 395). Hofmann reiterates this: “Contestation is in this sense not a sign of normative regress; it is in fact intrinsic to the normativity or legitimacy of a norm” (Hofmann, cited in Ralph and Gallagher, 2015, p. 245). With R2P, most of this contestation comes from within. States have been vocally critical of the norm and have been involved in developing proposals and amendments to the R2P adding regional input to the norm. Two examples of these proposals would be “Responsibility while protecting” (RWP) emerging from Brazil and “Responsible protection” (RP) emerging from China (Bellamy, 2015, p. 180). Thakur and Orchard identify a process called “Norm Localisation”, which describes how in different international societies norms gain traction and develop at different rates. An example of this is present in the AU policy regarding IDPs. Notably, this is an aspect of the R2P that was outlined by Ban Ki-moon in his 2009 UNSG report where he stated: “The protection of refugees and internally displaced person was a direct goal of the R2P” (Orchard, 2016, p. 297). This entered into hard law on two occasions: Firstly, with the Great Lakes Protocol, and then furthered by the Kampala Convention. These initiatives have seen the protection of IDPs against atrocity crimes enter hard law, demonstrating progress that is far from illusionary (Orchard, 2016, p. 315). These concepts demonstrate how the norm is (a) still undergoing transformation, and (b) that control of the norm is far from unipolar in contrast to HI. This demonstrates clear normative progress.

 

Permanency of Inconsistency

Hehir points to the “permanency of inconsistency” as one shortcoming of RtoP, specifically focusing on the inertia of the P5, the Veto and the influence national interest still has in shaping foreign policy. Hehir reduces the application of R2P by the P5 to “whether the members of the P5 have a collective interest in – or are at least not opposed to – halting a particular looming or actual mass atrocity” (2013, p. 152). One of the more nuanced advocacy arguments comes from Gallagher, and sets out a “call to manage the expectations” of R2P (2015, p. 256). This is centred around paragraph 139 of the WSOD, which calls for “collective action in a timely and decisive manner through the security council …  on a case-by-case basis” (UNGA, 2005). Integral here is the case-by-case clause. R2P does not represent a linear policy decision making system, rather it is a framework used to address atrocity crimes and their prevention. As each case vastly differs, differing outcomes and decisions are to be expected. Ralph and Gallagher further this: “When states signed up to the World Summit Outcome Document they did not expect a consistent response because they recognised that each situation was different” (2015, p. 244). Expectations of what R2P can do and what R2P itself is, need furthering to fully understand what is achievable in the name of R2P. It is not a catch-all linear decision making process, but instead a framework used on an ad-hoc basis recognizing that each case differs vastly in scope and scale.

To counter ‘permanency of inconsistency’, I look again to the AU and its institutions. Sceptics such as Hehir point to the UNSC’s veto as “the biggest issue regarding the UNSC’s record on humanitarian intervention” (2010, p. 220). As Williams affirms, “Africa is one of the most important crucibles in which the R2P was forged” (2009, p. 413), and has been one of the most dynamic reformers in countering the inertia of the UNSC. The PSC (Peace and Security Council) of the AU has no veto, and therefore no ability “to hold the fate of nearly one billion Africans hostage” (Abbas, 2012, p. 131). Moreover, within the AU we have seen developments in regional military capabilities such as the African Stand-by-Force identified by Ban Ki-moon in his 2011 report (p. 9), encouraging them as an alternative to the at times paralysed and gridlocked UNSC. Essentially, the AU is taking steps to reform the organs responsible for the invocation of R2P in Africa.

The permanency of inconsistency talks of the UNSC as if it were the only organ responsible for invoking R2P. The growing power and responsibilities of regional organisations is apparent. Perhaps of most value in countering the inertia of the UNSC is article 4 of the AU’s constitutive act. Article 4(h) allows for “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity” (Abbas, 2012, p. 110). Notably, with no power of veto in the PSC and only a required 2/3 supra-majority to achieve consensus, the mechanisms exist for timely and decisive action (Abbas, 2012, p. 131). The AU and PSC (theoretically) can act in a timely and decisive manner to respond to atrocity crimes on the continent of Africa without UNSC approval, and subsequently seek “retrospective approval” (Abbas, 2012, p. 125). Whilst the AU has never acted in such a manner, the mechanisms are in place to circumvent UNSC inertia.

Development of AU IDP legislation further specifies how the RtoP has made genuine progress. States can fulfil RtoP responsibilities by taking in IDPs and refugees, an idea advanced by Ralph and Souter as a “special responsibility” (2015, p. 713). Both the Kampala Convention and Great Lakes Protocol have been ratified by AU member states indicating successes at the regional level, with aspects of R2P entering hard law and the “internalization” stage of Finnemore and Sikkink’s norm-life-cycle theory., which is useful here in analysing the current trajectory of R2P as a norm. The three stages of a life cycle for a norm are: norm emergence where it begins to gain recognition, norm cascade once the norm passes a tipping point and institutions such as states and INGOs recognize the norm, and finally norm internalization which they define as reaching a “taken-for-granted quality”. They note that the actors responsible for reaching internalization are (notably to the AU and IDP legislation) (1) law, (2) professions and (3) bureaucracy (Finnemore & Sikkink, 1998, pp. 895, 898). Finnemore and Sikkink also discuss the mechanisms integral to internalization as being institutionalization and habit. Williams argues R2P has “found an institutional home in Africa” (2009, p. 416).

 

Sound and Fury Signifying Nothing

A further critique by Hehir is that RtoP lacks “substance” and is no more than a “slogan employed for differing purposes shorn of any real meaning” (2010, p, 219). This implies there have not been substantive changes to UNSC practice. Ban Ki-moon appeared to acknowledge the discourse-policy gap when, in his first address as UNSG, he promised to turn R2P from “promise to practice” (Ban, 2009, p. 28). To counter this critique, we look to the normative transition from the doctrine of HI to R2P. Thakur himself states that “R2P was the ICISS answer to reconciling the neuralgic rejection of humanitarian intervention by the global south, with the determination by the north to end atrocities” (2016, p. 417). This highlights two arguments. Firstly, that R2P in substance is vastly different from HI, because it shifts the focus from the intervening states, to that of “the perspective of the victim” (Thakur, 2016, p. 418). Secondly, that R2P is no extension of Western Exceptionalism, with contestation coming from a wide range of non-western states and actors.

Evans further outlines dissimilarities between HI and R2P. Referring to the coercive measures ascribed to Pillar III he states “it is a travesty of the responsibility to protect principle to say that it’s about military force and nothing else” adding “that’s what humanitarian intervention is about, but it’s not R2P” (Evans, 2012, p. 378). Evans describes the dimensions of R2P as being “political, diplomatic, legal, economic or in the security sector” (Evans, 2012, p. 377). This argument is to a certain extent useful in distinguishing between HI and R2P, and demonstrating the successes R2P has achieved. However, simultaneously it provides fodder for sceptics such as Hehir: Evans, by claiming R2P possesses those catch-all dimensions, enables the application of lofty ambitions to the principle. While it is important to emphasise the differences between the two, for the norm to be internalised expectations need to be managed and the limitations of the principle need to be understood. This cannot be achieved through ascribing it the catch all dimensions of Evans. Peter Hilpold supports this: “The shared understandings of R2P to date are not deep enough and its practice remains too inconsistent” (Hilpold cited in Thakur, 2016, p. 421). The norm is still young in comparison to other international norms. With increased use deeper understanding of the limitations will be gained. Currently there are many varying degrees of advocacy for the norm, but when a shared and realistic understanding of what it can achieve is reached, the norm will truly be able to flourish.

Externally to the debates surrounding managing expectations of R2P it is important to note there have been success of R2P that dispel it being merely a slogan. Notably, prior to Resolution 1973 on Libya the UNSC had never “authorized the use of force to protect populations without the consent of the de jure authorities” (Bellamy, 2010, p. 171). This is an invocation of RtoP in the new reconceptualised era of sovereignty as a responsibility, not a right, and a clear demonstration of Pillar III at work. Hehir may dismiss this resolution as the “aberrant ashes of resolve and timely action” (2013, p. 137), but the commitment of the international community to intervene in a state manifestly failing to uphold its responsibilities as sovereign indicate a clear success for the R2P in the fore of intervening, as contentious as its reception may now be.

The AU reinforces these claims. Within the AU there has been direct action in accordance with R2P; in 2009 the AU cited R2P in imposing arms embargos on both Guinea and Niger (Abbas, 2012, p. 129). Moreover, Resolution 1962 by the UNSC upgraded an existing regional peacekeeping operation (UNOCI) to use “all necessary means to carry out its mandate” (Abbas, 2012, p. 128), highlighting again the integral nature of regional organisational cooperation in implementing R2P. Additionally, to counter P5 inertia ECOWAS have adopted a protocol that “allows it to take enforcement actions in any of its member states without their consent” (Abbas, 2012, p. 128), indicative of the reconceptualised notion of sovereignty.

 

Conclusion

An undeniable shift has occurred in the discourse surrounding sovereignty and intervention. In the wake of Resolution 1973 it is clear to states that sovereignty is not an absolute right, but a responsibility that must be upheld. The focus on the AU displays how on one continent, the normative journey of RtoP has faced strong contestation and reform, but now, on a continent gripped by instances of mass violence, R2P is used as a guiding framework to respond to these crises. The original ICISS report of 2005 stressed that R2P was to be a “guiding principle for the international community” rather than a singular doctrine on intervention (ICISS, 2005, p. XI).

The Ezulwini consensus embodies an African response to African problems, and denotes a proactive approach to regional invocation of R2P. In 2008 the AU chairperson said “the AU would no longer sit and do nothing just because the international community decides to do nothing” (Abbas, 2012, p. 126). This readiness and proactivity is refreshing, and important in a debate dominated by P5 inaction. The UN as a large transnational body suffers from plurality of opinion; it must account for all voices of member states and must debate, at length, every issue brought before it.

This can and does provide a roadblock to the timely action of paragraph 139 of the WSOD. This however, is a logistical problem within the UN, not a substantive issue with R2P. Reiterating Bellamy: the debate is now about implementation, not acceptance. The role regional organisations play is paramount in the progress R2P makes over the next decade. Ban Ki-moon identified them as the “surest path” in ensuring the progress of RtoP. The AU has taken steps of internalization with the enshrining of IDP protection in hard law, the creation of its own SC, stand-by-force and early warning system. The AU is in some respects exemplary progress of R2P internalization on the continent of Africa.

To conclude, this essay has argued that while clear progress of the R2P has been made, it is young and still cascading, to be internalized and enshrined in law. Expectations of what it can do need to be managed. A call for a more nuanced advocacy of the norm that engages with the obstacles to internalization and a deeper understanding of the limits of the norm is needed. If obstacles to internalization can be overcome, great potential for the norm in international society is a certainty.

 

Bibliography

Abass, A. in Cotler, I. and Genser, J. 2012. The Responsibility to Protect: The promise of stopping mass atrocities in our time. New York: Oxford University Press.

Ban, K. 2009. ‘Implementing the Responsibility to Protect’, Report of the Secretary-General. Available from: http://responsibilitytoprotect.org/SGRtoPEng%20(4).pdf

Ban, K. 2011. ‘The role of regional and sub-regional arrangements in implementing the responsibility to protect’, Report of the Secretary-General. Available from: http://www.un.org/en/ga/president/65/initiatives/Report%20of%20the%20SG%20to%20MS.pdf

Bellamy, A.J. 2014. The Responsibility to Protect: A Defense. Oxford: Oxford University Press.

Bellamy, A.J. 2015. ‘The Responsibility to Protect Turns Ten’, Ethics & International Affairs, 29(02), pp. 161–185.

Deng, F. 1996. Sovereignty as Responsibility: Conflict management in Africa. Washington, DC: Brookings Institution Press.

Evans, G.J. 2008. The Responsibility to Protect: Ending mass atrocity crimes once and for all. Washington, DC: Brookings Institution Press.

Evans, G.J. in Cotler, I and Genser J. 2012. The Responsibility to Protect: The promise of stopping mass atrocities in our time. New York: Oxford University Press.

Finnemore, M. and Sikkink, K. 1998. ‘International norm dynamics and political change’, International Organisation, 52(4), pp. 887-917.

Gallagher, A. 2015. ‘The Responsibility to Protect Ten Years on from the World Summit: A call to manage expectations’, Global Responsibility to Protect, 7(3-4), pp. 254-274.

Gallagher, A. and Ralph, J. 2015. ‘The Responsibility to Protect at Ten’, Global Responsibility to Protect, 7(3-4), pp. 239–253.

Hehir, A. 2013. ‘The permanence of inconsistency: Libya, the security council, and the responsibility to protect’, International Security, 38(1), pp. 137–159.

Hehir, A. 2010. The Responsibility to Protect: ‘Sound and Fury Signifying nothing’, International Relations, 24(2), pp. 218-239.

Orchard, P. 2016. ‘Regionalizing protection: AU and ASEAN responses to mass atrocity crimes against internally displaced persons’, Global Responsibility to Protect, 8(2-3), pp. 295–326.

Ralph, J. and Souter, J. 2015. ‘A special responsibility to protect: the UK, Australia and the rise of Islamic State’, International Affairs, 91(4), pp. 709-723.

Thakur, R. 2016. ‘The Responsibility to Protect at 15’, International Affairs, 92(2) pp. 415-434.

United Nations General Assembly. 2005. ‘World Summit Outcome Document’. Available from: http://www.un.org/womenwatch/ods/A-RES-60-1-E.pdf

Welsh, J.M. 2013. ‘Norm Contestation and the Responsibility to Protect’, Global Responsibility to Protect, 5(4), pp. 365–396.

Williams, P. 2009. ‘The “responsibility to protect”, norm localisation, and African international society’, Global Responsibility to Protect, 1(3), pp. 392–416.

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The Responsibility to Protect and the Responsibility to Prosecute

Georgiana Epure, University of Cambridge, UK

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

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

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

Two Responsibilities, One Goal

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

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

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

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

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

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

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

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

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

The Dangers of a Too Tight, Synchronised Relation

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

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

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

Conclusion

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

 

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