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Upcoming conference on the doctrine of the Responsibility to Protect

The Program in Holocaust and Human Rights Studies at Benjamin N. Cardozo School of Law and The Department of Political Science at Yeshiva University invite to a new and interesting conference on THE RESPONSIBILITY TO PROTECT: A Framework For Confronting Identity-based Atrocities (for more information see the conference program). According to the organizers (my thanks to Zachary Pall for drawing my attention to this event):

“The conference seeks to provide a forum to conceptualize the normative legal and political content of R2P; to examine the R2P framework against identity-based atrocities including ethnic confl ict and genocide and to address the political and operational challenges to the implementation of R2P. The proceedings will be published at a later date.”

This conference could indeed be an interesting update and perhaps even revitalization of the concept of Responsibility to Protect which, after its development by the International Commission on Intervention and State Sovereignty (ICISS) in late 2001, has somewhat fallen into oblivion. The original purpose of the ICISS was to draft a normative basis for what is commonly known as “humanitarian intervention”, i.e. the intervention in a State by other State(s) in order to stop/prevent genocide or other gross and/or systematic human rights violations (please feel free to challenge me on this definition). What triggered this work were the massive human rights violations that occured in the increasing number of internal or non-international conflicts taking place after the Second World War. Since these kind of conflicts were not easy to grasp with the legal framework available to the international community – first and foremost of course the UN Charter – the Canadian government launched the independent R2P-Commission with a mandate to reconcile “the international community’s responsibility to act in the face of massive violations of humanitarian norms while respecting the sovereign rights of states poses a unique challenge.”

The main challenge the Commission faced was of course to create a legal basis for external intervention (if necessary by force) in States that were unable or unwilling to prevent human rights violations themselfes, but at the same time refrain from undermining the principle of State sovereignty. This conflict of the protection of human rights and State sovereignty is already imminent in the UN Charter itself. Whereas Art. 1 (3) UN Charter describes the promotion and encouragement of human rights and fundamental freedoms as one of the central purposes of the Organization, the Charter in its Art. 2 (1) supports the “principle of the sovereign equality of all its Members” and in Art. 2 (7) expressly confirms the prohibition for the UN to “intervene in matters which are essentially within the domestic jurisdiction of any state”. What supporters of the concept of humanitarian intervention have maintained is that today, gross human rights violations can not by any standards be considered to be “within the domestic jurisdiction” of a State. The development of the human rights in public international law during the past decades, and indeed during the entire 20th century, seem to support this. But even if the systematic violation of human rights inside a country no longer counts as a part of the domaine réservé of that States and thus is no longer “protected” by the concept of prohibition of intervention (as phrased in Art. 2 (7) UN Charter), the violation of State sovereignty entailed by humanitarian intervention (which not necessarily has to consist of military means, but by definition always contains an element of coercion) still poses a problem. The former UN Secretary General Kofi Annan suggested the following “approach” to this dilemma: 

“… if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica — to gross and systematic violations of human rights that offend every precept of our common humanity? … Surely no legal principle — not even sovereignty — can ever shield crimes against humanity … Armed intervention must always remain the option of last resort, but in the face of mass murder, it is an option that cannot be relinquished.”

It could very well be that the only way to satisfactorily solve this conflict of humanitarian intervention and State sovereignty is in the wake of a future UN reform. In fact, since the UN Summit in september 2005 the issue of “embrace(ing) the ‘responsibility to protect’ as a basis for collective action against genocide, ethnic cleansing and crimes against humanity” has been on the top of the agenda for a reform of the UN. One more good reason to keep the topic alive and join the discussion in the form of an international conference!

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