Symposium: The Responsibility to Protect in Libya and Syria–Reflections

[Yasmine Nahlawi is an independent researcher specialising in R2P and its applicability to the Syrian and Libyan conflicts. She holds a PhD in Public International Law from Newcastle University, LLM in International Legal Studies from Newcastle University, and BSc in Political Science from Eastern Michigan University.]

I would like to begin my response post by expressing my deepest gratitude to the distinguished reviewers of my book, Shannon Raj Singh, Anjali Manivannan, and Jessica Peake, for bringing in their diverse and insightful perspectives while reviewing ‘The Responsibility to Protect in Libya and Syria: Mass Atrocities, Human Protection, and International Law’. They have left me with much to think about, and at hand now is the difficult task of responding to the questions and issues that they raise! I cannot profess to have all the answers, nor would I be able to do justice to their reviews in a single post. I will therefore attempt to respond to the main issues raised by each contributor, while leaving food for thought for future research undertakings.

In her post, Singh questions why the due diligence standard for the duty to prevent genocide, as articulated in the ICJ’s Bosniajudgment (‘capacity to influence effectively’), should not be imported to similar duties to respond to other mass atrocity crimes. I am not against this idea per se, although, as Singh seems to concur, my view is that this due diligence standard requires significant clarification at a minimum. Namely, the Court’s reading in the Bosnia case appears quite stringent: in clarifying Serbia’s responsibility for failing to prevent the Srebrenica genocide, it stressed that Serbia’s ‘position of influence … [was] unlike that of the other States parties to the Genocide Convention owing to the strength of the political, military and financial links’ that it held with the genocidal groups. It fell short of declaring that such strong links are required to satisfy the ‘capacity to influence effectively’ threshold. However, it would have been helpful for the Court to elaborate how State responsibility for a failure to prevent genocide could be established short of such strong and unique ties.

The Court’s more recent jurisprudence represents an improvement in this respect, in which it conferred standing upon The Gambia to institute charges against Myanmar for failing to prevent genocide, not on the basis of any injury sustained by The Gambia, nor on the basis of significant ties held between the two States, but rather simply upon their shared status as signatories to the Genocide Convention. As summarised in an excellent OJ post by Singh on this decision, the Court’s ruling ‘challenges the notion of what each State can, and therefore must, do under the Genocide Convention’, thus significantly expanding States’ capacities – and potentially obligations – to respond to situations of genocide as per Article 1 of the Genocide Convention. It will be interesting to follow the Court’s findings on this case, specifically with respect to whether and how it will develop the Bosnia ‘capacity to influence effectively’ due diligence standard, now over ten years down the line, and what implications, if any, this will hold for R2P.

Manivannan, as a civil society practitioner, points out a (justified) critique of my work that is akin to recurring criticisms on R2P research outputs, namely, that it falls into the trap of focusing on and thus glorifying R2P’s Pillar 3 while glossing over other aspects of the doctrine, in particular Pillar 2. In my book, I dedicate a chapter to analysing the legal underpinnings of R2P’s Pillar 2, although, at 7 pages in length, it is notably shorter than that on Pillar 1 (14 pages) and on Pillar 3 (34 pages).

For my part, I will attribute this to both a conscious and sub-conscious decision. First, my research findings revealed that R2P’s Pillar 2 is simply not as grounded within existing or emerging international legal norms as the other two Pillars. This is despite general State agreement regarding the importance of (although, critically, not the mandatory nature of) assistance-giving and capacity-building with respect to mass atrocity prevention. And, for better or for worse, my book sought to unpack existing and emerging international legal norms, and not merely policy or ‘best practice’ guidelines, with respect to R2P’s three pillars. I do agree with Manivannan, however, that significant work is still required to raise the profile of the doctrine’s Pillar 2.

The second reason for downplaying Pillar 2 in my book is that it was arguably less relevant to the two case studies of Libya and Syria (although I suspect that Manivannan may disagree!). While both regimes were notorious for their flagrant human rights breaches, neither State had been identified as at-risk for mass atrocity crimes. In fact, during Libya’s universal periodic review, which was concluded only a month prior to the outbreak of protests within the country, States were largely – and ironically – welcoming of the ‘progress’ that Libya had ‘achieved’ in promoting human rights. When anti-government protests erupted in each of Libya and Syria in 2011, the situations quickly spiralled into R2P cases, and there was little time for the international community to engage with the respective governments through assistance-giving or capacity-building – and, in any case, this may not have represented the best course of action, given that these governments were themselves the primary perpetrators of atrocities against their populations. With that said, however, I take on board Manivannan’s suggestion that there was room to discuss rebuilding in the Libyan context through the prism of R2P’s Pillar 2, namely, through providing assistance and capacity-building to post-Gaddafi Libya to ensure safeguarding from the resurgence of mass atrocity crimes.

Reflecting more globally, Peake draws attention to an emerging trend on the international scene that seemingly counteracts the post-Charter move towards multilateralism that I describe in the book, namely, ‘shrinking multilateralism and the mounting nationalism’. Peake is spot on that emerging nationalist rhetoric threatens to unravel decades of work in which community interests such as human rights and mass atrocity prevention have been increasingly prioritised at the expense of State sovereignty. It is alarming, to say the least, that States are brandishing their sovereignty as a justification for withdrawing from international bodies and commitments that were established with the aim of furthering community interests (for example, the US’s withdrawal from the Paris Agreement, HRC, and UNESCO, as well as its withdrawal of funding from the WHO, just to name a few).

Despite such rising forces, however, I would contend that States cannot afford to return to a more bilateralist state of affairs given the realities of our increasingly global world. An even cursory examination of the current COVID-19 international response, for example, highlights the disastrous consequences that can inflict individual States and the entire globe when States choose to arbitrarily close their borders and act alone, rather than engage multilaterally on global problems, as illustrated by OJ contributors on the issue (see here, here, here, and here). Other long-standing community interests, including mass atrocity prevention and climate change, exhibit similar cross-border effects such as weapons proliferation, refugee flows, and natural disasters that affect international peace and security as a whole. Thus, while nationalist overtones may be steering national politics inwards, it is difficult to see how such a trend can be sustained, and what may be a short-term relapse in the appreciation of community interests will (hopefully!) reset course to furthering and promoting an enforceable R2P.

On that note, I’d like to end with another thank you to the contributors, editors, and readers of Opinio Juris for what has been a thought-provoking and stimulating discussion on my book!