21 Apr Symposium: On the Promise and Potential of R2P
[Shannon Raj Singh is a Visiting Fellow of Practice at Oxford University, where she is researching the duty to prevent atrocity crimes with the Institute for Ethics, Law & Armed Conflict’s Programme on International Peace and Security. Shannon is also an Associate Legal Officer at the Special Tribunal for Lebanon. The views expressed herein are those of the author and do not necessarily reflect the views of the STL.]
It is difficult to talk about the survival of a doctrine aimed at human protection in contexts like Syria and Libya. How are we to consider our legal norms and theories on atrocity prevention as holding any promise in the face of these grimmest, bleakest examples of our failure to avert human suffering?
But in The Responsibility to Protect in Libya and Syria, Yasmine Nahlawi makes a powerful case for optimism in a realm of international law where there is today little reason for it. In her masterful examination of the legal underpinnings of the Responsibility to Protect (R2P), she neither glorifies the doctrine nor glosses over its shortcomings. Rather, she adopts an approach akin to that of a physician, examining R2P in a clinical fashion at this most dire crossroads for its survival: where it is rooted, where it stands today, and where it can and should go from here.
There is surprisingly little work of this nature. Those who focus on the law governing mass atrocity response often either brand themselves R2P advocates or condemn it as politically toxic – or worse, a convenient cover for regime change. It is much harder to recognize R2P as a tool: one which must be significantly sharpened to be of value.
Nahlawi argues persuasively, however, that analysing R2P as a purely political tool shortchanges both its value and potential. In perhaps the greatest doctrinal contribution of her book, she examines the basis within international law for each of R2P’s three pillars, reviewing which aspects of R2P are supported by existing law and where the doctrine bridges normative gaps. The exercise is painstaking solely because it is difficult: the law governing atrocity response is fragmented and it is incomplete. Nahlawi’s detailed analysis reveals, for example, the difficulty in stretching the meaning of the Geneva Conventions’ Common Article 1 to cover an extraterritorial State obligation to react to all war crimes, including those not derived from the Conventions. It exposes the issue with resorting to Article 41 of the Articles on State Responsibility, which lacks formal legal standing, to try to establish a State responsibility to react to atrocity crimes as violations of jus cogens norms. And it demonstrates the glaring absence of a multilateral convention on crimes against humanity, creating enormous gaps in the international legal framework governing responsibility for the prevention and punishment of the crime. In the realm of State responsibility, establishing clear and unequivocal responsibility is inherently challenging: in the area of extraterritorial atrocity response, it is even harder.
In the course of her examination, Nahlawi conceptualizes R2P as a tool for pulling together, repackaging, and building upon a number of sub-norms to create a “cohesive doctrine that outlines the responsibilities of host and third-party States to prevent and react to the commission of mass atrocity crimes.” Nahlawi’s recognition of the first two roles of R2P are not particularly novel: many commentators have recognized its function of pulling together norms, and others have argued that it is effectively a “marketing ploy”, rebranding existing legal obligations and adding little to the table. But Nahlawi’s third conceptualization of the doctrine, as building upon existing norms to propel the forward development of international law, sets her analysis apart.
Because rather than merely looking at where R2P has succeeded or failed, Nahlawi demonstrates that the doctrine’s value lies not in its status but in its potential. She asserts that R2P can be understood as a much-needed statement of intent for the progressive evolution of international law, and by examining the doctrine in its darkest hours, she exposes both the places where it falters and the reasons why it is necessary.
More specifically, Nahlawi makes a case that R2P’s most contentious aspect, Pillar 3 – setting out an obligation of States to “respond collectively” when a State is manifestly failing to protect its population from atrocity crimes – must undergo three legal developments to make the transition from a discretionary right (for States to choose to intervene in a situation of mass atrocity), to a legally binding obligation. First, the obligation itself must be better defined; Nahlawi points to the varied terminology employed by existing international norms to urge greater clarity as to what a “responsibility to react” actually entails. Second, she contends that clarification is also needed as to the methods States should employ to react to atrocity crimes, making a strong case for the use of third-State countermeasures. Third, Nahlawi calls for a distinct due diligence standard for Pillar 3, by which we could assess the responsibility of third States for failing to fulfill their duty to respond to atrocity crimes.
On this latter point, Nahlawi is not entirely convincing as to why the due diligence standard applicable to the Genocide Convention could not also be imported to the context of crimes against humanity or war crimes. She asserts that it is an unrealistically high threshold; I would argue that it is more an issue of clarifying its content. But we agree that articulating the standard for the responsibility of third States is one of the core issues inhibiting the operationalization of atrocity prevention generally, and R2P specifically.
Nahlawi’s argument for the need for R2P to go from right to obligation needs no further justification than the case of Syria, the ultimate demonstration of selectivity in atrocity response. In addition to addressing the need for R2P’s legal development, Nahlawi does not shy away from the core challenge to its implementation: the politicization of the permanent veto in the Security Council. Her recommendations here, including the use of the Uniting for Peace mechanism and regional authorization through treaty-based consent, are innovative and thoughtful. Though they may ultimately be subject to the same political powerplays that plague the Security Council, each of the options she proposes deserves further consideration.
Prior commentators have repeatedly remarked that R2P needs to be clarified. Nahlawi’s ambitious analysis of both what R2P is and what it could be goes a long way towards this end. And if, in her final analysis, Nahlawi betrays a bias for refusing to throw the doctrine away as a result of its failures in Libya and Syria, maybe it is because she has judged that we cannot afford to. In grappling with opportunities to strengthen R2P, this book both serves as both a grisly diagnosis of the doctrine’s condition, and makes a powerful case for keeping it alive.