Atrocity crimes framing the responsibility to protect.

• Author: Scheffer, David
• Position: International Conference in Commemoration of the Sixtieth Anniversary of the Negotiation of the Genocide Convention

The principle of the responsibility to protect (R2P) has achieved, within a remarkably short span of time, a rhetorical presence in international politics and international law that has invited both praise and skepticism. (1) In its simplest and most widely accepted formulation, R2P stands for the responsibility of governments and of the international community to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity--all of which are categories of significant crimes that should be designated as atrocity crimes both for purposes of accuracy when describing the basket of relevant crimes, and for simplicity as a means of communicating with the global populace. I examine what is meant by each of these categories of crimes and by the unifying term, atrocity crimes. An understanding of the legal basis for R2P must underpin efforts to activate the principle of R2P on the world stage. In reality, not all atrocity crimes, particularly some categories of crimes against humanity and war crimes, necessarily justify military intervention as the most extreme application of R2P. Drawing the line between atrocity crimes that would merit and those that would lack justification for military intervention when all else fails under R2P could become an extremely difficult task in world affairs. Nevertheless, it should be possible to outline a preliminary rationale for drawing that line and thus create a basis for the pragmatic and legally sound implementation of the many different measures (e.g., diplomatic, political, economic, and military) of R2P.

CONTEMPORARY EVOLUTION OF R2P

When, by consensus vote on September 16, 2005, the United Nations General Assembly confirmed the application of R2P in world affairs, it did so with a very sharp focus on atrocity crimes as the sole predicate for implementing R2P. Paragraph 138 of the 2005 Worm Summit Outcome declaration states:

Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it.... (2) Then, in paragraph 139 of the 2005 World Summit Outcome, there are four references to "genocide, war crimes, ethnic cleansing and crimes against humanity" in describing the international community's responsibility to act collectively with respect to R2P. (3) Thus there is no ambiguity about what, in the collective view of the United Nations and its Member State governments, is the trigger for R2P: atrocity crimes. It is equally clear, at least in this rather narrow interpretation of R2P, what R2P is not designed to respond to, such as: human rights abuses or acts of international terrorism falling short of atrocity crimes, the requirements of "human security" writ large, natural calamities, repressive or undemocratic governments, or threats to international peace and security absent atrocity crimes. The United Nations' focused application of R2P against atrocity crimes may prove controversial as sincere advocates of the evolving principle of R2P seek to argue a broader mandate as a matter of policy, customary law, or morality.

The alternative and broader formulation, advanced by the International Commission on Intervention and State Sovereignty (ICISS) in its earlier December 2001 report, The Responsibility to Protect, which helped spur governments to take R2P seriously for purposes of a U.N. declaration, articulates the basic principles that

the primary responsibility for the protection of [a state's] people lies with the state itself.... Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of nonintervention yields to the international responsibility to protect. (4) The "just cause threshold" for military intervention established by the ICISS requires that

there must be serious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind: A) large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or B) large scale 'ethnic cleansing,' actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape. (5) Atrocity crimes, as further explained below, can easily fall within the ICISS formulation. But the ICISS principles range further and embrace circumstances for R2P that were not later adopted by the General Assembly in 2005. "Large scale loss of life," for example, can result from legitimate acts of self-defense, or a state's failure to respond effectively to an epidemic, or to warn its coastal population in a timely manner of a tsunami, or to see its public officials govern so badly, divisively, or corruptly that the state "fails" and some type of anarchy results. All of these events can have devastating impacts on civilian populations, but they do not necessarily give rise to R2P as that term is most broadly accepted by the international community at the start of the twenty-first century.

Later efforts at articulating R2P, prior to the 2005 Worm Summit Outcome, began to tighten the prism. For example, the Report of the [U.N.] Secretary-General's High-level Panel on Threats, Challenges, and Change in 2004 explained that "the issue is not the 'right to intervene' of any State, but the 'responsibility to protect' of every State when it comes to people suffering from avoidable catastrophe--mass murder and rape, ethnic cleansing by forcible expulsion and terror, and deliberate starvation and exposure to disease." (6) Nevertheless, while "deliberate starvation" might, although not always, qualify as a crime against humanity, "exposure to disease" is usually not regarded as criminal in purpose, including as an atrocity crime. These broader formulations did not survive in the High-level Panel's narrower conclusion, which defined R2P as

the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to pre vent. (7) In early 2005 U.N. Secretary-General Kofi Annan issued his report, In Larger Freedom, which was intended as the platform upon which the 2005 World Summit Outcome would be drafted later in the year and adopted by the U.N. General Assembly. On the one hand, Annan refers to R2P implicitly as a principle confined to atrocity crimes when he writes in his report that, "Much more, however, needs to be done to prevent atrocities and to ensure that the international community acts promptly when faced with massive violations." (8) On the other hand, he endorses the High-level Panel's broader concept of R2P and explains "if national authorities are unable or unwilling to protect their citizens, then the responsibility shifts to the international community to use diplomatic, humanitarian and other methods to help protect the human rights and well-being of civilian populations." (9) These latter categories of protecting "the human rights and well-being of civilian populations" would not necessarily require the commission of atrocity crimes to trigger R2P under this formulation.

The 2005 Worm Summit Outcome indeed sharpened the focus of R2P as an extremely significant, albeit narrow, principle of international relations and as an emerging, though neither codified nor fully enforceable, norm of international law. Doubtless there will be efforts in the years ahead to broaden the prism of R2P in an effort to protect civilian populations from a wider range of threats, and probably for good reason. But R2P remains a controversial principle among a large number of governments for varied reasons. (10) The narrow prism--responding to the threat or reality of atrocity crimes against civilian populations--may prove to be precisely the foundation upon which R2P must first demonstrate its strength of purpose and persuasiveness as a binding principle of both world affairs and of international law. Indeed, a broader mandate for R2P in the years ahead may burden it with so much political controversy and dissent among international lawyers that it will collapse as a declared commitment, even with respect to atrocity crimes, before it has an opportunity to be fully tested.

The 2005 Worm Summit Outcome repeatedly identifies four categories of crimes as targeted for prevention and collective action under R2P: genocide, war crimes, ethnic cleansing, and crimes against humanity. Before examining each of these categories of crimes, we should understand what they mean as a group of crimes and how they can be described succinctly as atrocity crimes for both the public and the professional community.

The identification of genocide, war crimes, ethnic cleansing, and crimes against humanity as the premise for prevention or action under R2P derives much of its legitimacy from the jurisprudence of the international and hybrid criminal tribunals built during the 1990's, such as the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), the Special Court for Sierra Leone, and the permanent International Criminal Court (ICC). During that decade and into the twenty-first century such crimes were prosecuted against individual perpetrators in the Balkans, Rwanda, Sierra Leone, the Democratic Republic of the Congo, Uganda, Sudan (Darfur), Kosovo, and Timor-Leste. Even such crimes committed during the Pol Pot tyranny of 1975 to 1979...