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The General Assembly and the Responsibility to Protect: “The Devil will be in the Details”

I thought that for my first post it would be apposite to discuss a component of my doctoral research. This post will therefore focus upon the Responsibility to Protect doctrine or, “R2P”, as it has become known (for earlier posts on the R2P see here). This post considers the most recent institutional development which R2P has been subjected to- the General Assembly’s July 2009 Thematic Debate on R2P. Last week the General Assembly formalised the debate through its consensual adoption of a procedural resolution on R2P. The Resolution affirmed that the Assembly will give ‘further consideration’ to R2P.  Through reference to the trends which arose in the course of the July debate, this post argues that the Assembly should not deploy further attention to determining the scope of R2P, but rather to determining its operational effect through contemplation of the identity of actors inherent to R2P. The nature and findings of this post are supplementary, and at times interpretively opposing, to the organisational reports on the debate which were released recently by the Global Centre on the R2P (report available here) and the International Coalition on the Responsibility to Protect (report available here).

(1) The Scope of R2P

As many readers will be aware, whether they are a proponent or opponent of R2P, the doctrine received organisational grounding through its unanimous adoption by Heads of State at the World Summit in 2005. This espousal was officialised through the insertion of R2P within paragraphs 138-140 of the World Summit Outcome Document. Paragraph 138 of the Outcome Document detailed the agreed scope of R2P as applying to four set circumstances: genocide, crimes against humanity, war crimes and ethnic cleansing (see UN Doc. A/RES/60/1). In spite of this unambiguous wording, the doctrine has been the subject of an “expansion debate”- contentions in favour of and against the application of the doctrine to situations typically classified within wider notions of human security. For example, to natural disasters like the Burmese cyclone. The source of this debate may be located within the translation of R2P by the High Level Panel on Threats, Challenges and Change (see UN Doc. A/59/562). The Panel advocated R2P as generally applicable in situations of “avoidable catastrophe” (see UN Doc. A/59/562). In doing so, the Panel communicated the conceptual potential of R2P in an excogitable manner but arguably overlooked that the doctrine’s functionality in practice, commands the determination of a finite scope.

Perhaps the most remarkable contributions to the “extension debate” were those made by the International Law Commission. Between 2006 and 2009, in the context of formulating Articles for the Protection of Persons in Natural Disasters, the Commission considered the potential service which R2P could provide to the procurement of tangible protection for such persons. However, in July 2009, immediately prior to the General Assembly debate on R2P, the Commission advocated the scope of R2P was delimited to the four crime strategy enunciated at the World Summit and by the Secretary General in his Report on the Implementation of R2P. Consequently, the Commission determined that applying R2P to natural disasters ‘would stretch the concept beyond recognition or operational utility’ (see UN Doc. A/CN.4/SR.3019). The merits and demerits of this determination fall outside the ambit of this post, save to say that whilst the functioning of R2P in such contexts would extend its agreed range, the yet indeterminate capacity of R2P from a doctrinal perspective, particularly its preventive facet, could counter claims of the alleged illogicality that R2P could, to some extent, impact upon States handling of such additional contexts (to this end, the observation made by the Commission during their discussions is worth recalling: ‘[A]s implicit in the overall responsibility to protect, the responsibility of the international community to prevent is considered the most pertinent to the topic at hand. The principle of prevention, including through risk reduction, is well-established in the field of disaster relief….’ [see UN Doc. A/CN.4/SR.3019].).

In light of the aforementioned dispute concerning the scope of R2P, the question on every interested individual’s mind in advance of the General Assembly debate was inextricably linked to which direction the Assembly would swing in this regard. Would the Assembly stay true to the expression of doctrinal span embodied within the Outcome Document, the Secretary General‘s Report and by the International Law Commission? Or, would the Assembly, as an organ always conscious to issues of realpolitik, opt to alter this contextual commitment? An analysis of the 94 statements made in the course of the debate reveals that the answer falls in favour of the former. In the wake of the “extension debate”, 84% of statements took care to specify the scope of the doctrine. 79% of these statements directed that R2P applied strictly to the four set contexts enumerated at the World Summit. In view of the identity of territories in which the “extension debate” had fixated upon, it is perhaps unsurprising that amongst those most avidly championing the four crime strategy were Myanmar (formerly Burma) and Sudan.

The analysis of the debate issued by the Global Centre for the Responsibility to Protect opines that ‘Member States were united’ in their support for a four crime strategy and further that  France was a ‘lone voice’ in its delineation of a wider scope to R2P. These observations give rise to two interpretive clashes with the findings made from my analysis of the debate. Firstly, the assertion of the Global Centre that there was uniformity inherent to states approach to the scope of R2P commands dispute. My analysis shows that indeed 6% of the statements made included semantics suggestive of a digression from a strict four crime approach. For example, in communicating their delegations support to R2P, Benin affirmed that the doctrine was concerned with ‘hate crimes’, Macedonia to ‘serious crimes’. These findings go to the accuracy of the Global Centre’s unity observation. Secondly, the projection of France as an R2P-scope-deviator warrants challenge. Whilst France did direct that they would ‘also remain attentive‘to natural disasters, they also unequivocally directed that a four crime strategy to the scope of R2P was appropriate.  In light of France’s clarity on the latter, the basis of the Global Centre’s interpretation of France’s statement is simply that – a matter of interpretation (the contentious paragraph of France’s statement is as follows: ‘France will also remain attentive to ensure that natural disasters, combined with the deliberate action of a government that refuses to provide assistance to its population in distress or to ask the international community for aid, do not lead to a human tragedy that the international community could only watch helplessly.’ Statement available here).

Whilst my findings suggest that there is not yet unanimity concerning the precise scope of R2P amongst States, they equally suggest that there is at least a majority stance on the matter. In light of this, the recommendation would be for the Assembly to concentrate efforts upon attaining a popular viewpoint on the functionality of R2P. Whilst there are numerous directions in which this operational consideration may be rooted, discussion on this post will focus upon the need to resolve the dubiety which still clouds the identity of the actors involved within R2P.

(2) R2P Actors

Within R2P discourse it is typically assumed that the doctrine will be launched in response to a States actions or inactions toward the protection of their populations. During the course of the Assembly debate discussions triggered consideration of R2P also being responsive toward the actions or inactions of non-state actors. To this effect, the Report of the Global Centre details that ’few members’ raised the possibility of R2P being applied to the actions of non-state actors. In fact 6% of States raised this prospect. This idea correlates with the option that non-state actors owe an R2P. With regard to this possibility, the Global Centre Report fails to comment. However, the possibility resonates with the efforts of the former Secretary General Kofi Annan to re-conceptualise sovereignty pre-R2P. In an interview with The Economist, Annan asserted the existence of ‘individual sovereignty’ (see K.Annan, ‘Two Concepts of Sovereignty’, The Economist, 18th September 1999 at 49-50). The flipside of this assertion was the possibility that a rights beneficiary was also a rights bearer, required to ensure that their exercise of individual sovereignty did not infringe upon the enjoyment of others individual sovereignty.

The complexness of this possibility was furthered by the express re-conceptualisation of State sovereignty as Responsibility within R2P discourse. The question that arises is that if States are to exercise sovereignty responsibly to fulfill their R2P, to what extent are States required to regulate the actions of non-state actors which counter the well-being of other members of the States population? In addressing this matter, recourse to State opinion is crucial.

To this effect, statements at the Assembly debate support the existence of the notion of sovereignty as responsibility. 58% of statements advanced that States owe an R2P, with 47% of statements accepting that sovereignty as responsibility was an appropriate summation of States obligations towards its inhabitants. Whilst a great degree of divergence existed regarding how to effectuate this concept, only one state explicitly rejected it- Venezuela. In addition to the 6% of statements which suggested that R2P be applied to actions of non-state actors, 17% of statements opined that R2P be fulfilled through prosecution at the International Criminal Court. This latter trend advances the possibility that R2P may not merely apply to, but be grounded within, the actions of non-state actors. As we know the Court is concerned with the fostering of individual responsibility. Thus, utilising the Court for its deterrence value, as some States suggested, in prohibiting the commission of the four R2P crimes, connects with non-state actors themselves owing an R2P by acting in a manner which protects fellow State inhabitants. In light of this, the recommendation would be for the General Assembly’s ‘further consideration’ to encompass the provision of greater clarity upon the role of private actors in the application and implementation of R2P.

(3) The Way Ahead

As R2P strives to find its place upon the international stage it is imperative that the General Assembly’s resolved ‘further consideration’ supply specification and clarification to the operational and conceptual facets of R2P which remain ambiguous. To this end, determining the role and identity of R2P bearers and the nexus of this to non-state actors would be a welcomed start. In furnishing this transparency, a re-assertion of the intelligible aspects of R2P, such as the delimitation of its automaticity to the four crime strategy pronounced at the World Summit, should be avoided.

In the words of the Malaysian Representative, ‘[t]he best concepts are those which are precise and clear, encompassing but straightforward’. If R2P is to transcend the boundaries between theory and practice, the responsibility of the Assembly to assign it doctrinal lucidity cannot be underestimated. In attempting this, the Assembly would do well to recall that the ‘devil will be in the details’..

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