R2P

1. R2P = Responsibility To Protect

2. History: Started as “Humanitarian Intervention,” which was not a legal doctrine, but an advocacy tool.

   1. Embodied a RIGHT to force

   2. 1990s political debate (lots of French support)

   3. Normative agreement that we shouldn’t have genocide or war crimes (other treaties) but how do we enforce it? Humanitarians looked to force. Western led coalitions (like NATO) were asked to intervene when egregious events occurred (like Rwanda).

   4. Legal problem

      1. UN Charter 2.1: sovereignty and equality of all members.

         1. No allowance of “intervention” in the Charter

      2. Lots of debate

         1. Need for Humanitarian intervention is great

         2. But legal basis is so contested

         3. And practice is problematic and political

   5. Examples

      1. 1989 US intervention in Panama: we intervened at Panama’s request, but only at the request of the person that was in power because we got them into power. It was part of a coup.

         1. Common problem of “good faith”

      2. 2003 French intervention in Ivory Coast: France went in at request of government and later got SC authorization, but by that time the rebels had taken over.

      3. US intervention in Nicaragua, where we assisted the rebels.

      4. 1999 NATO bombing of Kosovo: Former Yugoslovia breaks up and there are a bunch of wars. Kosovo ends up as part of former Yugoslovia. Some Serbs live there, mostly Albanians. Serbs in Belgrade attack Albanians in Kosovo. Basically, the federal government was bombing itself. SC took no action because of Russia (who typically backs the serbs). Ethnic cleansing. NATO bombs Belgrade.

         1. No legal basis: SC declined authorization, clearly not self-defense

         2. But many still found it justified. NATO killed 500 civillians, Serbs had killed between 2,000-11,000 civilians.

         3. Serbs went to ICJ and said they had been a victim of active aggression. ICJ ducked: said there was no jurisdiction because Serbia wasn’t a member state of the UN.

      5. 2003 US attack on Iraq with a whole mish mash of legal justifications (that it was R2P, that we had SC authorization, and that it was self defense)

         1. This made the whole HI legal argument collapse because it was tainted by all the rationales that could result due to US intervening in Iraq, led to R2P

3. R2P: “agreement to the concept” was voted for in the 2005 GA of the UN World Summit

   1. Highest Level of Expression of R2P was in “outcome document” = not even a declaration.

   2. Definition: responsibility that states must protect their populations from the 4 mass atrocity crimes. These include:

      1. Ethnic cleansing

         1. No international legal definition

      2. Crimes against Humanity

         1. Defined in Rome Statute: widespread and systematic pattern committed as conscious acts of policy

      3. Genocide

         1. Defined in 1948 Genocide Convention: intent to destroy in whole or in part, a national, ethnic, racial or religious group

      4. War Crimes

         1. Defined in Rome Statute and Geneva Conventions, including, but not limited to:

            1. wilful killing of a protected person (e.g. wounded or sick combatant, prisoner of war, civilian);

            2. torture or inhuman treatment of a protected person;

            3. wilfully causing great suffering to, or serious injury to the body or health of, a protected person;

            4. attacking the civilian population;

            5. unlawful deportation or transfer;

            6. using prohibited weapons or methods of warfare;

            7. making improper use of the distinctive red cross or red crescent emblem or other protective signs;

            8. killing or wounding perfidiously individuals belonging to a hostile nation or army;

            9. pillage of public or private property

            10. and: serious violations occurring during NIAC (ICTY)

   3. If there is a Mass Atrocity, then follow 4 pillars of R2P

      1. Pillar 1: the state

      2. Pillar 2: International community assistance

      3. Pillar 3: military action that is timely and decisive

         1. 5 criteria before Pillar 3 = (triggers)

            1. serious threat of mass atrocity

            2. purpose of the response is to address the mass atrocity (in good faith)

            3. military is the last resort (resembles self-defense principle of necessity)

            4. Response must be proportionate (also an element of self-defense analysis)

            5. Must do more good than harm (must have reasonable prospect of success)

   4. Differences between humanitarian intervention & R2P

      1. Right to Intervene is only about reaction; R2P is about prevention

      2. Right to Intervene is only about military action; R2P has many possibilities, including diplomatic persuasion, pressure, non military measures like sactions and ICC process.

         1. R2P military action is a last resort, only applicable in extreme cases

      3. Right to Intervene is only about military actors; R2P involves a wide range of actors

   5. The Debate

      1. Pro...

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