Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Lauren Pak
Lauren Pak is a senior at Vanderbilt University studying Political Science and Community Leadership Development.
One of the significant innovations in the United Nations General Assembly Resolution 60/1 (2005) establishing the responsibility to protect (R2P) is dictating who has the right to intervene in humanitarian disasters. According to paragraph 138 of the resolution, the state has the ultimate responsibility to “protect its populations from genocide, war crimes, ethnic cleansing, and crimes against humanity”.  If the state fails to satisfy its obligations, the international community has the right to “collective action,” which paragraph 139 states is to “build capacity to protect” and “use appropriate diplomatic, humanitarian and other peaceful means” in order to prevent human rights atrocities.  The resolution proclaims the international community’s overriding authority and ability to intervene in state affairs.
The principles of R2P assume that states are primarily responsible for intervening in atrocities that are controllable and within the powers of institutional structures. R2P works under the stipulation that global peace is conditioned on state mutuality and respect of another’s sovereignty.  The legitimacy of states as a governing body by international standards are dependent on the legal ability to “prevent, punish, investigate, and redress human rights violations.” 
The R2P doctrine fails to prevent or allow for intervention unless there is legal premise that the main perpetrators and abusers of human rights are institutionally accountable structures. The doctrine ignores acts of terror not being committed overtly by states but rather non-institutionalized structures such as the ‘Janjaweed’ in the Darfur, Bosnian Serbs separate from Serbia’s official military, and ISIS in Syria.  It places unwarranted power in the hands of militant groups and extremist factions that do not recognize institutional legitimacy and function outside of international law. Legitimacy in the arena of international order is subjective and must be recognized as such. There are multiple cases of inconsistent applications of the term ‘genocide’ and subsequent interventions. In a Democracy Now! debate, Jeremy Scahill poses the question, “But Iraq? Where was the label of genocide in the U.S policy towards Iraq?” in displaying the incongruity of U.S. intervention.  United States strongly claimed the Dafur crisis to be genocide despite the lack of such resolution by the United Nations and other major state actors. 
The United States was quick to support intervention in the Kosovo case and again used the term of ‘genocide’.  Though there is literature by authors such as Shkelzen Maliqi who cite the Serb’s military aggression as ‘ethnic cleansing’ or ‘genocide’, the United Nations legally ruled that Milosevic’s campaign as it relates to Kosovo was not genocide.   Furthermore, when discussing legitimacy as it relates to international law, there is not only the issue of state legitimacy but also the question of an intervention’s legitimacy. Though the legality of the NATO Kosovo intervention is in question due to the failure of the international community in prevention and lack of UN Security Council approval, the intervention is legitimate due to the lack of a peaceful alternative, despite some who question the ethicality of the Rambouillet Agreement. In response to Jeremy Scahill’s biting critic of U.S foreign policy’s selectivity and play on national interest when it comes to active intervention, U.S. Ambassador to the UN Samantha Power points at how the politics behind military intervention does not change the bleak reality that there were atrocities being committed against Kosovo Albanians that elicited the NATO 1999 action. 
In the Rwanda case, the Clinton Administration intentionally evaded using the term genocide in order to avoid intervention.  Denison and Mujanovic points at the danger of assuming the natural and unavoidable effect of ‘ancient ethnic hatreds’ as reasons to not intervene in Syria, using the Bosnia conflict case and the lack of international intervention in preventing the politically led Srebrenica genocide.  This past March, U.S. Secretary of State John Kerry made a statement that accused ISIS of genocide for “eliminating those who do not subscribe to its perverse ideology” despite the past precedent that legal determination of genocide is dependent on proof of an institutionalized strategy against the destruction of a group.  There has been a significant lack of intervention in Syria to date despite the clear human rights atrocities invoking R2P. Furthermore, the attempt to qualify every conflict as genocide in turn discredits the significance and implication of genocide, and the highly politicized debates for the identification also prolongs the process of actual and timely action.
A central problem with the responsibility to protect is that it is based fundamentally on the flawed concept that intervention is only justified when there is legal legitimacy without recognition that legitimacy is subjectively cultivated. There is a lack of clear and unanimous power when it comes to handling human rights atrocities, with resolutions then being interpreted by select actors such as the United States or Russia. This goes against the claim that the law is universal, as a law’s effectiveness and power stems from its implementation and interpretation. In the words of Nina Hachigian and David Schorr, the United States works “prodding other influential nations to help shoulder the burden of fostering a stable, peaceful world order that delivers security and prosperity”. 
There is an assumption that states have the moral responsibility to abide by the universal standards of human rights. This asserts that institutions function based on morality, dismissing the political agenda of structures. The claim of universal peace and democracy has the danger to blanket the darker reality perpetuating colonization, belittling a state’s autonomy and capacity to work non-violently or in a civilized manner with another entity. The implication is that the failure of states represents a moral failure, calling for external actors to teach ‘values’. This leads to the justification of a Western hierarchy, a ‘New World Order’, or imposition of foreign principles that does not respectfully engage with local contexts. What are the implications that the majority of ICC indictments are involving heads of African states when the “most horrific mass atrocities in recent years have taken place outside of Africa”?  The disparity points very clearly at the fact that there is a color to the power controlling the narrative of global governance and a dangerous selectivity when it comes to determining legitimacy. Politics has clouded the fundamental purpose of the responsibility to protect doctrine that looked to reestablish and affirm the call to preserve the sacred nature of human life.
 United Nations General Assembly, ed. 60/1 2005 World Summit Outcome. 14-16 September 2005, New York. New York: United Nations, 24 October 2005. Print.
 Mohammed Ayoob. “Humanitarian Intervention and State Sovereignty,” The International Journal of Human Rights 6, no. 1 (2002): 81-102.
 Matthew Rosenberg. “Citing Atrocities, John Kerry Calls ISIS Actions Genocide”. The New York Times. Last modified March 17, 2016. http://www.nytimes.com/2016/03/18/world/middleeast/citing-atrocities-john-kerry-calls-isis-actions-genocide.html?_r=0
 2008 Debate: U.N. Ambassador Nominee Samantha Power vs.Journalist Jeremy Scahill”. Democracy Now!. Last modified June 5, 2013. https://youtu.be/QqpQvIT---c.
 Scott Straus. “Darfur and the Genocide Debate” Foreign Affairs. Last modified January 1, 2005. https://www.foreignaffairs.com/articles/sudan/2005-01-01/darfur-and-genocide-debate
 “U.S. says ‘Genocide is unfolding in Kosvoo’”. CNN.com.
Last modified March 29, 1999. http://edition.cnn.com/US/9903/29/us.kosovo.03/
 Shkelzen Maliqi. “Why peaceful resistance movement in Kosova failed”. Last modified March 22, 2000. https://shkelzenmaliqi.wordpress.com/2000/03/22/why-peaceful-resistance-movement-in-kosova-failed/
 “Kosovo assault ‘was not genocide’”. BBC News. Last modified September 7, 2001. http://www.someaddress.com/full/url/
 Benjamin Denison and Jasmin Mujanovic. “Syria isn’t Bosnia. And no, the problem isn’t ‘ancient hatreds’”. The Washington Post. Last modified November 15, 2015. https://www.washingtonpost.com/news/monkey-cage/wp/2015/11/17/syria-isnt-bosnia-and-no-the-problem-isnt-ancient-hatreds/
 Nina Hachigian and David Shorr. “The Responsibility Doctrine,” The Washington Quarterly (2013): 73-91. https://csis-prod.s3.amazonaws.com/s3fs-public/legacy_files/files/publication/TWQ_13Winter_HachigianShorr.pdf
 Adam Taylor. “Why so many African leaders hate the International Criminal
Court”. The Washington Post. Last modified June 15, 2015. https://www.washingtonpost.com/news/worldviews/wp/2015/06/15/why-so-many-african-leaders-hate-the-international-criminal-court/
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