Symposium: Practical and Doctrinal Challenges and Developments of the Responsibility to Protect

[Anjali Manivannan is the Senior Programs Officer at the World Federalist Movement – Institute for Global Policy (WFM-IGP), where she leads the International Coalition for the Responsibility to Protect (ICRtoP) Program.]

The responsibility to protect (RtoP) doctrine celebrates its 15^th anniversary this year, an opportunity to interrogate the persisting obstacles to its implementation. The Responsibility to Protect in Libya and Syria grounds these problems in the normative status of RtoP and the inability to circumvent all-too-common UN Security Council (UNSC) paralysis in the face of mass atrocities. What follows is a rigorous analysis—pillar by pillar, crime by crime—of RtoP as an “emerging umbrella norm,” “pulling together, repackaging, and building upon existing norms.” Nahlawi applies her legal discussion to Libya, the consequent UNSC dynamics, and Syria: two RtoP situations that developed months apart with extremely different outcomes.

Normative Status (or Lack Thereof) of RtoP

Legal scholars and students, the book’s target audience, will enjoy Nahlawi’s reliance on public international law to demystify the emergence of the RtoP doctrine and its three pillars. The historical journey—from bilateralism to multilateralism and the unanimous endorsement of RtoP by UN Member States in the World Summit Outcome Document (2005)—finds insufficient opinio juris to create a legally binding norm. Per the framing of RtoP of “pulling together, repackaging, and building upon existing norms,” RtoP is analyzed vis-à-vis the status of each mass atrocity crime (genocide, war crimes, crimes against humanity, and the uncodified crime of ethnic cleansing) as a jus cogens norm or as a repackaging of fragmented norms. Thought-provoking debates about the value of normative shifts, instead of considering RtoP and the crimes it purports to defend against as umbrellaing already existing sub-norms, are folded into the book.

Unsurprisingly, given the title, Nahlawi focuses the most on Pillar 3, which is arguably crucial in situations of state-sponsored mass atrocities. But Pillar 3 lacks teeth, with which most would agree, and the state practice and opinio juris to be considered legally binding. The Pillar 3 chapter not only includes an analysis of the international community’s RtoP, crime by crime (normative status), but also a discussion of the practical problem of operationalization due to the UNSC Permanent Five Members’ veto powers (toothlessness).

Missing from the examination of the three pillars is a rigorous, crime by crime consideration of Pillar 2, which receives significantly less attention than its sibling pillars. This ignores emerging developments related to the applicability of Pillar 2 to non-state (non-armed) actors, who are key players in here. According to the UN Secretary-General’s “Implementing the Responsibility to Protect” report (2009):

[Pillar 2] seeks to draw on the cooperation of Member States, regional and subregional arrangements, civil society and the private sector, as well as on the institutional strengths and comparative advantages of the United Nations system. Too often ignored by pundits and policymakers alike, pillar two is critical to forging a policy, procedure and practice that can be consistently applied and widely supported. (emphasis added)

This omission in the book, published a decade after the aforementioned report, confirms an ongoing tendency to sideline Pillar 2. It is all the more regrettable since there is more space dedicated to the applicability of RtoP to non-state armed actors than to non-state actors as a whole. As a civil society practitioner myself, I would have liked to see a discussion of any consensus of states’ obligations to, for example, cooperate with non-state actors. Is there state practice and opinio juris on the applicability of RtoP to non-state actors in encouraging and helping states?

Alternative Mechanisms to Circumvent UNSC Paralysis

The second part of the book applies RtoP to Libya and Syria, highlighting the challenges related to Pillar 3, namely the permanent veto. Nahlawi proposes the activation of existing mechanisms such as the dormant Uniting for Peace, the authority of which she frames the same way she considers RtoP: as repacking and consolidating existing rules. Since Uniting for Peace only kicks in if a resolution is actually vetoed, she importantly suggests that states should introduce resolutions despite threats of vetoes in order to provide the opportunity to refer the matter to the UN General Assembly (UNGA).

In addition to recognizing the role of the wholly representative UNGA, even if it is limited to making recommendations, the book puts forth regional authorization as another means, albeit still politicized, of circumventing the permanent veto. For me, this general discussion would have been strengthened—or at least more thought-provoking—by considering ECOWAS interventions and the UNSC’s retroactive acceptance or rejection of those actions.

RtoP in and after Libya

The case studies continue to center on state practice and opinio juris in examining obligations under Pillars 1 and 3 for states, regional organizations, and the UN system. Again, the otherwise thorough unpacking of the elements neglects Pillar 2, which Nahlawi contends the international community may exclude in order to fulfill its Pillar 3 responsibilities. But why are they mutually exclusive instead of mutually reinforcing? I found this inquiry especially relevant in interpreting where to situate the need to rebuild. There may be a connection to Pillar 2, including through building a state’s capacity to protect, which contributes to rebuilding the society. It would have been interesting to see how, if at all, Nahlawi could have pulled together, repackaged, and built upon existing norms to argue for a responsibility to rebuild.

As many know, Libya left a controversial legacy for RtoP, ripe with common misconceptions that RtoP endorses any military intervention and regime change. Neither is the case, and the latter constitutes half a chapter of treaty interpretation that methodically analyzes the ordinary meaning, object and purpose, and supplementary materials behind UNSC resolutions on Libya. It was a flashback to my first-year international law course (in a good way!) and very fascinating given all the misunderstandings around the application of RtoP in Libya. The treaty interpretation reveals that the ordinary meaning and object and purpose are consistent with changing a regime to prevent atrocities, but the supplementary materials indicate the opposite: according to states, regime change falls outside the mandate of RtoP. Thus, Nahlawi recommends further investigation of the relationship between RtoP and regime change, weighing the pros and cons of improving human rights protection frameworks at the potential expensive of the normative status of RtoP. This begs the question of the practical value of advancing RtoP as a norm, which organizations and networks like mine do, instead of as a doctrine “pulling together, repackaging, and building upon existing norms.” It is an important inquiry since, even in the Group of Friends of RtoP, there are states that find RtoP contentious.

The practical and doctrinal fray increases after Libya, and Nahlawi excellently sets the stage for post-Libya UNSC dynamics and how the issues of intervention and regime change implicated in the international community’s response to Libya stymied UNSC action in Syria. But there is more to that story. Upon delving into the state practice and opinio juris behind Russia and China’s vetoes, which were purportedly to prevent military intervention and regime change in Syria, Nahlawi shows they were “bad faith” vetoes: only three draft resolutions were Chapter VII and none invoked Article 42 “use of force” measures. The toothlessness of Pillar 3 following the permanent veto is thus seen.

RtoP and Salient Issues of Accountability and Non-State Armed Groups

Nahlawi explores several specific topics in the context of RtoP in Syria, but I have restricted my review to the two of greatest interest to me: accountability and non-state armed groups.

Regarding international justice, which is both a preventative and reactive measure under RtoP (see p. 33), lawyers will—or should—appreciate the reality check on the limitations of individual state action via universal jurisdiction cases, an increasingly popular alternative avenue to justice. I cannot speak for Nahlawi, but I interpreted this as a way of expressing support for international justice mechanisms, which do not exist for Syria other than the evidence-gathering/case-file-preparing International Impartial and Independent Mechanism (IIIM). As an RtoP tool, the IIIM is perhaps all the more valuable for indicating practice and opinio juris that non-UNSC UN bodies (here, the UNGA) are empowered to discuss and make recommendations on international peace and security even while the UNSC is doing so. This practice was furthered two years later by the UN Human Rights Council’s establishment of the Ongoing Independent Mechanism to perform similar functions concerning Myanmar.

There is another important section on the applicability of Pillars 1 and 3 to non-state armed groups. By now, Nahlawi’s methodical approach is familiar: pillar by pillar, crime by crime. But despite handling a more complex topic—certainly one less grounded in international law—her arguments here are not as rigorous as her others. Given the role of non-state armed groups in Libya, Syria, and RtoP situations around the world today, I would have liked to read the same measured considerations afforded to them as to state actors. RtoP is obviously state-centric, but how is RtoP operationalized when non-state actors are in effective control of a territory, which attaches human rights obligations? In such situations, do non-state actors have Pillar 1-type “responsibilities” to protect the populations on that territory? These questions may fall outside the scope of this book, but it provoked them nonetheless and they are issues I look forward to learning more about in the future.

The Future of RtoP

There have been significant human and legal doctrinal costs of the international community’s failure to protect Syrians without any recourse to circumvent UNSC paralysis. Nahlawi grapples with the practical and doctrinal challenges of RtoP throughout her book and proposes two broad solutions. RtoP, particularly Pillar 3, must become legally binding, or the doctrine must accept alternative routes to bypass UNSC paralysis. But these pragmatic recommendations come with obstacles, including the ubiquitous hurdles of the lack of state, regional, and/or international political will or enforcement to protect populations. As RtoP turns 15 and the armed conflict in Syria nears a decade, the normative status, expansion, and implementation of the RtoP doctrine—issues at the heart of The Responsibility to Protect in Libya and Syria—must remain top priorities in the further development of human protection and international law.