She’s cool, but she’s wrong.

I have a short piece on the Responsibility to Protect (R2P) in the October 2010 Review of International Studies Special Supplement on “Evaluating Global Orders” (that came out last week? I don’t get journals). It’s basically a reply to Louise Arbour, former Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) who argued in 2008 that R2P was becoming “a duty of care in international law and practice”.

For those of you who don’t have access to the journal (or just want a brief description) my argument is that Arbour’s line of reasoning is flawed.  Arbour rests her argument on the 1948 Genocide Convention and the 2007 Bosnian Genocide Case at the International Court of Justice. She suggests that because the Article 1 of the Convention states that states have a duty to prevent and punish genocide, and that Serbia and Montenegro were found to be in breach of this obligation, that stopping genocide/mass atrocity is becoming a legally enforceable norm.  Further, she argues that this does not only suggest that neighbouring states should intervene, but any state that has the ability to intervene (Psst: she’s looking at you, Western states!) is legally obliged to do so. (Clearly, I’m simplifying here. If you’re interested, read her article for the full argument.)

I found this argument problematic for a number of reasons – all well pre-Côte D’Ivoire and Libya. (I wrote this in March 2009, revised it in spring 2010.)

The first set of critiques has to do with Arbour’s reliance on the 1948 Genocide Convention and the decision in the 2007 Bosnian Genocide Case.

First, the decision in the Bosnian Genocide Case states that states are only obliged to intervene if genocide has actually occurred or there is a plausible risk of it occurring. Fair enough, but how do we know if/when genocide is happening or likely to happen? The ICC was unable to bring genocide charges against Sudanese President Omar al-Bashir on its first attempt because there wasn’t enough evidence that a genocide (which has a very particular legal definition requiring evidence of intent) was taking place. (The ICC prosecutor was successful in having these charges laid against Bashir on appeal.)

Secondly, the Court’s decision in the Bosnian Genocide Case was far more limited than what Arbour suggests in her article. The decision states that the Court did not “purport to establish a general jurisprudence applicable to all cases where a treaty instrument, or other binding legal norm, includes an obligation for States to prevent certain acts.” Yet this is exactly what Arbour is doing. She’s extrapolating from this case to make the case for a general obligation despite the fact that the Court was clear on where it put the limits of its judgement.

Thirdly, even if such a norm could be established, there is little guidance in either the ICJ’s decision or Arbour’s argument as to what “prevent” actually is. There is also no guidance as to who should make the determination that genocide is taking place (if states are to be held legally accountable, does it matter if there is international recognition at the emergence of a risk of a genocide occurring?) In fact, the only guidance offered in the Court’s decision is that something should be done “at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” Not exactly a clear road map to action.

The second major set of critiques I have for Arbour relate to the fact that even if we could establish an obligation or “duty of care” in the international community, that this still doesn’t get to the “hard part” of R2P: actually getting states to do things. It is one thing to establish a law, principle or even a norm – it is quite another to change practices. If we have learned anything about international law in the last few decades, it is that its existence rarely delivers consensus.

In other words, even if everyone can agree that R2P as a legal obligation exists, this does not mean there will be agreement as to how it should be implemented. For example, should it be done through sanctions? Direct military intervention? Monitoring? There is no answer – and that is because these are the hard questions of R2P for which there is no easy answer. More importantly, these are the complicated issues which cannot be solved through law like Arbour seems to hope. Establishing an obligation does not help us to answer the much more difficult questions related to authorization and execution.

The third part of the article (somewhat rhetorically) suggests that we need to think about R2P with a “responsibility to reality”. In other words, while there can be no question that R2P is a revolution in the notion of ‘sovereignty’, translating this into a legally enforceable responsibility is, politically speaking, taking R2P to a whole new and probably unrealistic level. R2P ultimately comes down to a difficult political discussion between states. This means it is applied inconsistently, and where more powerful states believe there is an interest. Ultimately, as mentioned above, trying to solve this political problem with law is not going to work. Lawyers may want to remove themselves from the icky world of politics so that they may establish norms and principles from above, but the “reality” is that the future of R2P will not be decided at the ICJ, but in the closed door-meetings of NATO and the UN Security Council. At the very least, R2P’s future will not be decided through law, but the imperfect political international political institutions. Perhaps the best that international lawyers like Arbour can hope for is that R2P gives us the common language in which action may be debated and plans to help solve some of the world’s worst problems may be asserted. R2P may actually work – but it is difficult to imagine that it will work in such a way as to effectively trap states into obligations into which they have not given their consent.

Short version: Arbour is wrong, I’m right. HA!

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