Symposium: R2P as an “Umbrella Norm”

[Jessica Peake is the Director of the International and Comparative Law Program and the Assistant Director of the Promise Institute for Human Rights at UCLA School of Law.]

The doctrine of the Responsibility to Protect (R2P) was adopted during the 2005 World Summit to respond to four mass atrocity crimes – genocide, war crimes, crimes against humanity and ethnic cleansing – in the aftermath of states’ failures to act to prevent genocide in the 1990s.  It ultimately came to be expressed as comprising three pillars: pillar one is the responsibility of each state to protect its population from the four crimes; pillar two places a responsibility on the international community to assist states in meeting their pillar one goals, and; pillar three recognizes the obligations on third states to “respond collectively and in a timely and decisive manner when a state is manifestly failing to provide such protection.”

In “The Responsibility to Protect in Libya and Syria: Mass Atrocities, Human Protection, and International Law,” Yasmine Nahlawi takes the reader through a detailed exploration of the evolution of R2P, thoroughly unpacking each of the three pillars and assessing their application in Libya and Syria.  This book makes a large contribution to the dialogue around the operability of R2P, casting it as an “umbrella norm” that seeks to “pull together, repackage, and build upon” existing legal frameworks, with the powerful goal of eradicating mass atrocity crimes. 

Nahlawi depicts the evolution of the doctrine of R2P as a move from bilateralism under international relations to a more shared concern for community interests, coupled with a move from discretionary to legally binding obligations to address mass atrocity crimes.  She describes pillar one as a consolidation of existing norms around the four crimes into a single framework, illuminating the existing legal basis for those crimes under international law, and emphasizing States’ obligations to protect their populations.  Nahlawi suggests the goal of this single framework is to make it easier for States to understand their obligations, and also to act as a trigger mechanism for third-party intervention under pillar three. 

Nahlawi posits that the role of pillar two is to underscore the community interest values of the R2P doctrine and to signal it’s preventative, rather than reactionary, aims.  She suggests that, while not as grounded in binding international legal obligation as pillar one, pillar two foreshadows some emerging norms and parallel legal frameworks that underscore the ideals of States’ assisting one another to prevent mass atrocity crimes.  In particular, she draws attention to the “duty to cooperate,” found in the UN Charter and the UN General Assembly Declaration on Principles of International Law concerning Friendly Relation and Cooperation among States, which requires the coordinating and pooling of resources, and draws a distinction between this duty with what is required under pillar two: namely “relationships of giving,” drawing parallels to international environmental law as a model for assistance giving.  Through this she suggests a “basis for a nascent pillar two obligation.”

Nahlawi makes clear that pillar three is the most controversial: unlike the prevention-focused pillar two, pillar three is reactionary and third-party action is only contemplated when a state has shown itself unwilling or unable to respond to mass atrocities within its territory.  Although states continue to assert that pillar three is non-binding, Nahlawi painstakingly details an emerging responsibility for third-party states to intervene when mass atrocities occur, drawing on several different legal frameworks for support, including the Genocide Convention, the Geneva Conventions and Article 41 of the International Law Commission’s Articles on State Responsibility.  However, she concedes that this norm has not yet crystalized.

In the context of pillar three, Nahlawi expertly analyzes the potential role for different actors in the international community, including the United Nations Security Council (UNSC), the role of the General Assembly (UNGA), and regional authorizations.  She makes a persuasive case against the unfettered use of the veto by the Permanent 5 (P5) in R2P situations, underscoring Andrew J. Carswell’s combined reading of Article 1, 2, and 24 of the UN Charter to assert that the P5 are required to undertake their responsibility to maintain international peace and security in good faith, and that a veto could be deemed abusive if it breaches those good faith obligations.  She identifies the need for other actors to step up in the face of UNSC inaction. 

The biggest contribution of the book is the contextual analysis of the failure of R2P pillar three in Syria.  Nahlawi provides the reader a rich retelling of the history of the conflict, and the multiple abject failures of different actors to prevent the mass atrocities committed by the Assad regime.  Although the UNSC and other actors made references to R2P pillar one, as was also the case in the situation in Libya, Nahlawi outlines the repeated failures of the UNSC to invoke R2P pillar three, and the smokescreen behind which Russia and China vetoed resolution after resolution that would have aided the Syrian people.  Both Russia and China argued that each resolution they vetoed was biased against the Syrian regime and would open the door to military intervention and regime change.  However, through detailed analysis Nahlawi shows that this was false.  The UNSC resolutions did not authorize the use of force, and instead outlined non-military measures, or referrals to the ICC.  She rightly accuses Russia and China of being bad actors in these vetoes, abusing their power in bad faith for political expediency aligned with their domestic goals, and highlights that their actions were perceived as an illegitimate exercise of power by other states.  She holds up each veto as a repeated potent example of the broken nature of the UNSC and the ability of a single state within the P5 to hold as hostage action to counter mass atrocities. 

The potential of the Responsibility to Protect as a doctrine to prevent or cease mass atrocities has arguably been a failure so far.  Following the R2P intervention in Libya and the subsequent regime change there, the UNSC and states have shied away from third-party intervention to combat mass atrocities committed by a state against its own people, particularly in the case of Syria.  Syria has further exposed a great weakness in the international system: the power of the veto and how it can wreak havoc and lead to continuous failure in protecting international peace and security. However, rather than painting a bleak picture for the future of R2P, Yasmine Nahlawi eloquently illustrates the existing international obligations that create a positive duty on states to act to protect their own population under pillar one, a nascent basis for an obligation to provide assistance under pillar two, and makes a sophisticated argument to support an emerging pillar three obligation for third-party intervention.  Through grounding the three pillars in existing legal obligations, she makes a persuasive case for the continued value of R2P as an umbrella norm for preventing mass atrocities.  She concludes this work with the ambitious recommendation of solidifying a legal norm for third-party intervention, and other actors circumventing the UNSC where necessary.  However, in this current political climate characterized by shrinking multilateralism and the mounting nationalism, this may be too much to hope for.