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CHAPTER 1

Interrogating International Responsibilities

[E]mergency humanitarian aid is a new duty encumbent upon the international community…. It obeys the principle that it is a moral duty to help civilians in distress wherever they may be.

The Security Council emphasizes the responsibility of States to comply with their obligations to end impunity and to prosecute those responsible for genocide, crimes against humanity and serious violations of international humanitarian law.

Each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity…. The international community, through the United Nations, also has the responsibility … to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

This book analyzes how the international community responds to mass atrocities, in particular in sub-Saharan Africa. I argue that as human rights have acquired increasing normative force globally, the international community has incorporated human rights into its responses to violent conflict. In fact, human rights are used to label some conflicts as more heinous and worthy of response than others. Genocide has become the main signifier for worthiness. It is the über crime, the “‘super crime,’”¹ the worst imaginable violation of human rights—attempting to wipe out an entire group of people. Its invocation automatically brings about much anguish and angst and hand-wringing—if less actual response—among global political elites and newspaper editorial writers. Genocide invokes cries of “never again” and leads to calls to “do something.” As we shall see, “something” can mean many things, or nothing at all, and might lead to whispers of “yes, again” because those with the means to “do something” may not see it as in their interest to act. They may do “something,” but not necessarily what is required.

The international community has developed three types of responses that respond in some manner to the human rights issues raised by genocide, the “lesser” crimes of crimes against humanity and war crimes, and the vast humanitarian crises that accompany almost all contemporary conflict. These correspond to three responsibilities the international community has acquired over the last decades. The most famous and discussed responsibility—and indeed the one that provides the “responsibility” framework—is the responsibility to protect (R2P). While it incorporates a wide variety of actions, taking forceful military action to stop mass atrocities is the one that most concerns us. It is, in some situations, potentially the most effective response. However, while it has become the most talked about responsibility, it is also the least used. While there may frequently be good prudential reasons for this, it cannot be denied that in some situations the international community has utterly failed to follow through with this responsibility—which of course raises questions about how seriously the responsibility is taken.

While the responsibility to protect aims to physically stop the most heinous of human rights abuses, international criminal justice—what I call the responsibility to prosecute—holds people to account after the fact for these same abuses. While in one sense this is post facto punishment, the International Criminal Tribunal for the Former Yugoslavia (ICTY) was created while the war in the former Yugoslavia was still raging, and most of the cases being prosecuted by the International Criminal Court (ICC) are occurring in the midst of ongoing conflicts. So an additional motive for these activities is to affect the behavior of people who are engaging, or may engage, in these human rights violations—by arresting them, by creating inducements for them to stop, or by deterring such individuals from carrying out these violations in the first place. While this prosecution impulse ties into well-developed human rights norms, it may take rhetorical invocation of R2P to activate this responsibility. Indeed, it may be used in place of R2P action—or in conjunction with it.

Map 1. Africa, Map No. 4045 Rev. 7, November 2011. United Nations.

The final responsibility to provide humanitarian aid to people affected by conflict created by the crimes mentioned above—what I call the responsibility to palliate—does not seek to stop the conflict, nor does it seek to punish people driving the conflict. Rather, it seeks to provide the displaced and other victims of conflict with food, water, shelter, and medical assistance so that they can continue to live at the most basic level. It takes conflict for granted and tries to ameliorate—palliate—the effects of conflict. In theory it has no grand political project like the other two responsibilities, although this is a convenient—and not always convincing—fiction. It may also be used when R2P is invoked, although many times the actors involved—in particular nongovernmental organizations (NGOs)—may be on the ground carrying out this responsibility before the invocation of “never again.” Yet it, too, is intimately tied up with the other two responsibilities.

All three of these responsibilities come from the same human urge to stop suffering, and they are all heavily embedded in the twentieth-century human rights project, although there are also connections to the nineteenth-century development of international humanitarian law (IHL). Yet, the relationships between them are complex. This book seeks to disentangle and make clear these complexities. The core part of the book examines four case studies from central/east Africa to make concrete how the international community has—or has not—engaged with these responsibilities. First, however, these responsibilities require further explication. In the next sections I look more deeply at each of the responsibilities and associated norms and practices, briefly tracing their development and interrogating the concrete meanings of these responsibilities. I then turn to developing a framework for understanding how these responsibilities interact and the main conundrums faced by those deciding which of these responses to implement.

Humanitarianism: The Responsibility to Palliate

As Michael Barnett observes, “We live in a world of humanitarianisms, not humanitarianism.”² Indeed, while I will briefly track the evolution of the idea and practice of humanitarianism, one must recognize that there are, in fact, multiple ideas about what humanitarianism is and how to practice it.

While some use the term “humanitarianism” to denote a wide variety of human-rights-supporting activities,³ humanitarianism is distinct from human rights, even if they have overlapping ideational bases. Human rights are about making sure that all humans have access to the same protections from human-induced suffering and discrimination and have what they need to live in dignity. It is a political project that aims to order polities in such a way that individuals have access to the political process and their other rights are protected. Humanitarianism, while it may have broader social goals, is, in the end, about making sure that people can continue to live on a day to day basis in the most horrible and extreme circumstances. While we frequently use the term “humanitarian” to describe an individual who is attempting to do good in the world, the ambit and practice of humanitarianism as an “ism” is much more circumscribed. Humanitarian organizations—as opposed to development organizations, which focus on longer term economic and social progress throughout society—are focused on providing assistance—food, water, medical care, shelter—to individuals caught in the midst of conflict. They help refugees, internally displaced persons, asylum seekers, and other war-affected individuals gain access to what they need to survive on a daily basis—a “bed for the night.”⁴ This so-called classical humanitarianism does not deal with the broader political context in which it operates. It is all about saving lives. It is apolitical. However, this “pure” humanitarianism is under many pressures to go beyond this remit and become embedded in politics. As this occurs, life becomes much more complicated for humanitarians, and the choices faced by them—and the international community more generally—more difficult.

Michael Barnett and Jack Snyder⁵ identify four types of humanitarianism, characterized by where humanitarians stand on two issues—whether or not they accept that they are political and whether or not they accept constraints on what they can accomplish. These are “bed for the night,” “do no harm,” “back a decent winner,” and “peacebuilding.” The first is the approach of the Red Cross Movement, and has been expounded by David Rieff in a book of the same name.⁶ It is only emergency relief. It does not claim any goals or import beyond saving lives from one day to the next. Do no harm is essentially bed for the night with more reflection. While adhering to the previous goals, humanitarians will consider the consequences of their actions and whether or not their actions are doing more good than harm.⁷ Such issues came to the fore in 1990s, as questions were raised about whether aid actually prolonged conflicts by providing resources or safe spaces for combatants in the form of refugee camps. Until then, there was an uncontested assumption that good intentions resulted in good outcomes.⁸ Rwanda was one such situation where, as we will see, some organizations decided to withdraw because they felt they were doing more harm than good. This perspective still claims to be nonpolitical, but once one starts deciding who should or should not receive aid, one is making political as well as ethical judgments. Back a decent winner recognizes the constraints of humanitarian action while having a willingness to engage politically. It essentially looks for a “better” partner who can create a better peace even if this does not mean a broad-based liberal peace. When engaging with comprehensive peacebuilding, humanitarians look to the root causes of a conflict, including human rights abuses, and advocate the creation of a more just society that provides a basis for peace. It is avowedly political and it rejects the limited mission for humanitarianism advocated in the first strategy.

Advocating one version of humanitarianism over another will lead to different trade-offs and conundrums for humanitarians. The more you advocate political solutions, the less able you are to claim the classical humanitarian label which, theoretically, protects you in the field. Further, you may end up supporting activities and outcomes that are at odds with your intended goals as a humanitarian. These four categories are archetypes, and it may be possible to move between categories or occupy more than one category simultaneously, which creates even more tensions and complications.

An Abridged History of Humanitarianism

We can look to the mid-nineteenth century for the origins of humanitarianism. There were a number of efforts at this time to regulate warfare, which resulted in the creation of national Red Cross societies that would assist war wounded and the International Committee of the Red Cross (ICRC), as well as the first Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field in 1864, which established the principle of neutrality of those assisting the wounded. There followed many more conventions that provided protection for war wounded and those assisting them, as well as restrictions on the methods of warfare. These culminated in the 1949 Geneva Conventions, which comprehensively laid out the rights and duties of combatants and noncombatants in war. The 1977 Additional Protocols further extended the coverage (if not as comprehensively) in noninternational (i.e., internal) armed conflict. Thus, two important legal strands developed in IHL. First, states are constrained in how they fight—who they can target and what weapons and methods they can use are not unlimited. Second, states have responsibilities toward those affected by war, including providing or allowing the delivery of humanitarian assistance, such as medical and food aid. Unlike war abolitionists, IHL takes war as a given and attempts to ameliorate the effects of war. It does not have the broad societal-changing goals of human rights. It is focused on the moment, the situation on the ground, and people in immediate need.

Over the decades, the ICRC has developed a set of principles to which most humanitarians aspire.⁹ Of the seven core principles, four are the most important—humanity, neutrality, impartiality, and independence.¹⁰ Humanity is of obvious importance—it is the core impetus, the reason behind the actions. Neutrality, impartiality, and independence form the superstructure of classical humanitarian action. Neutrality means not taking sides in a conflict. Impartiality requires the provision of assistance to all in need. Independence entails acting without any state guiding your actions. The ICRC strictly adheres to these principles, and most other nonstate humanitarian organizations also take them as core principles, although this has become harder to do. UN and other state-based humanitarian organizations, while professing adherence to these principles, have obvious problems with independence, since they are acting on behalf of states. Further, neutrality can be difficult to achieve if the UN has taken sides in a conflict. International humanitarian organizations (IHOs) use these principles as a protective cloak, hoping that combatants will perceive them as not involved with one side or another and not threatening them in any way, and thus having no reason to fear or harm them. While this may work to a certain extent, it is by no means a sure path to security for humanitarian workers and access to those in need.

The developments in 1949 coincided with other developments in the UN and elsewhere. In particular, the UN created the Office of the UN High Commissioner for Refugees (UNHCR)¹¹ in 1950, and the Refugee Convention followed in 1951. The latter created a framework to provide for the rights of a significant population of those affected by war—refugees. It outlined the responsibilities of states toward refugees, including the principle of nonrefoulement—no forcible repatriation. UNHCR had an initial budget of $300,000 and a three-year lifespan. In the ensuing decades, it dramatically expanded its remit and global presence.¹²

The 1990s saw UNHCR expand its presence substantially while changing the nature and scope of the organization. The number of refugees globally reached its peak in 1993 in the context of war in the Balkans and Somalia. Its experience in Bosnia changed the organization as it became involved in the midst of a conflict rather than on the edges.¹³ Its personnel were put in harm’s way and it was much more difficult for it to operate—it now had to negotiate with combatants to gain access to affected populations in the middle of fighting, and frequently the combatants were not willing to accommodate UNHCR. The UN also had a peacekeeping mission in Bosnia, but it had a weak mandate, and although it included protecting humanitarian aid efforts, it routinely failed in its mission.¹⁴ Thus, humanitarianism became the perfect vehicle for the international community, which was under pressure to respond but which did not want to commit troops. At the same time, UNHCR began acquiring a wider remit as it began assisting internally displaced persons (IDPs). While undoubtedly helping many people inside Bosnia, UNHCR’s actions also helped European states, which wanted to keep IDPs from becoming refugees and making their way to Germany and other western European countries. The right to seek asylum thus became the “right to remain”¹⁵ and “preventive protection,”¹⁶ and humanitarians became involved in “‘containment through charity.’”¹⁷ High Commissioner Sadako Ogata suspended UNHCR operations in Bosnia until it received better cooperation from all the combatants and peacekeepers. However, because Ogata was going to remove “the international community’s symbol of concern,”¹⁸ UN Secretary-General Boutros Boutros-Ghali ordered UNHCR to stay. Although they were myth before, Bosnia fundamentally exposed the mismatch between lofty humanitarian principles—in particular independence—and the reality of state-based humanitarian action.

Rwanda proved another turning point for UNHCR and other IHOs as genocide and complete and utter failure on the part of the international community to stop the genocide or address the aftermath created untenable situations and dilemmas for all IHOs. The North Atlantic Treaty Organization (NATO) intervention in Kosovo¹⁹ brought humanitarianism further into the political fold. This process was complete by the early years of the new century as humanitarians became “force multipliers”²⁰ in Afghanistan and Iraq, and humanitarianism became just one more tool in the “War on Terror.” The “War on Terror” has also eliminated the distinction between combatant and noncombatant, on which the principle of neutral and impartial assistance is based. As the United States and its allies pursue those they deem terrorists around the world, its adversaries become “evil,” thus losing the protection (in the eyes of the United States) of the Geneva Conventions—and fundamental human rights norms more generally, such as the prohibition on torture—and the notion of the battlefield has disappeared as the entire world becomes a battlefield.²¹ This creates problems for humanitarians.²²

From Classical to Rights-Based Humanitarianism

Indeed, humanitarians frequently end up in the middle of the most violent conflicts around the world, with little political or other support. They must negotiate access to populations affected by war and may find that they become part of the conflict, targeted by various actors in the conflict or manipulated as pawns.²³ Further, fundamental understandings of what the practice of humanitarianism entails have changed. Through the 1970s, humanitarianism, for the most part, was conceptualized and practiced along the lines of classical, bed for the night humanitarianism—delivering food and medical aid in the midst of conflict—although Conor Foley notes how even during the Biafra crisis in 1967 humanitarians acted in very political ways.²⁴ The move to rights-based humanitarianism—along the lines of the peacebuilding version identified above—has led to a situation where humanitarians frequently look at the root causes of conflicts—including human rights abuses—and the broader rights of those displaced or otherwise affected by war. IHOs will more frequently engage in advocacy for the protection of human rights, including calling for the use of the military to protect human rights. And, instead of international humanitarian law, international refugee law, and international human rights law being viewed as separate realms, they are now seen as interrelated, providing broader, more robust legal analysis.²⁵ At the same time, particularly as a result of the experience in Rwanda, the “do no harm”²⁶ model is being embraced, as IHOs become more reflective about the broader implications of their work.²⁷

From Palliation to Power

In its most basic sense, humanitarianism is palliation. According to the World Health Organization, “Palliative care is an approach that improves the quality of life of patients and their families facing the problems associated with life-threatening illness, through the prevention and relief of suffering by means of early identification and impeccable assessment and treatment of pain and other problems, physical, psychosocial and spiritual.”²⁸ In the medical sense, palliative care “intends neither to hasten or postpone death.” It “provides relief from pain and other distressing symptoms” and “offers a support system to help patients live as actively as possible until death.” The “illness,” the symptoms of which humanitarians treat, is not the malnutrition and diseases from which those affected suffer. Rather, it is war and violent conflict itself. Thus, whereas palliative care “affirms life and regards dying as a normal process,” humanitarianism as palliation affirms life but also regards war as a normal process. It takes the world and its illness—war—as it is and helps those affected by the illness—refugees, IDPs, and others—to stay alive, hopefully until the war ends and localized illness is cured, or until the illness—war—ultimately kills them. It treats the symptoms rather than effecting a cure. While many millions of people have been saved by humanitarianism, it must seem for some caught in the midst of conflict that the refugee camp is akin to a hospice, with humanitarians keeping refugees alive and comfortable until the war—either directly through an attack by armed forces or indirectly through malnutrition and war-associated disease—kills them. They thus become what has been described as the “well-fed dead.”²⁹

This description is in no way meant to devalue the work of humanitarians. Indeed, most people helped by humanitarians live to see the end of the war in which they are caught, and even those in hospices will appreciate the efforts undertaken to ease their pain and make them comfortable as the inevitable happens. Yet taking war as inevitable imposes rather severe limits on the goals of humanitarians. At the same time, some humanitarians do not take the inevitable as such, and attempt to go beyond palliation.

Humanitarianism as palliation engages with many different interests and perspectives. The ICRC may see palliation as the ultimate expression of humanity—you are keeping people alive for this one day, and hopefully the next, and the one after that, and so on.³⁰ And many other IHOs also see this as their humane goal, while others want to go beyond palliation and find a cure—that is, address the root causes that are leading to the disease of war, which is killing so many people. This creates operational problems. It also brings them into conflict with others who may prefer palliation as state policy. That is, while states—especially rich Western states with the resources to put toward stopping conflict—may want to see a particular conflict stop and prevent people from being killed—they do not necessarily want to invest the resources (troops) to do so. Palliation thus becomes the preferred course of action, and a substitute for more robust action. Thus, to bring the medical analogy to a close, instead of bringing in surgeons (troops) to excise the tumor of war and genocide, states bring in hospice workers (humanitarians) to keep people alive until the war ultimately kills them.

This recourse to the humanitarian international,³¹ or the Land Cruiser Brigade,³² appears to give IHOs significant power in the midst of conflict. Yet it also brings with it many problems as humanitarians become politicized, wedded to one side in a conflict, and perceived, according to Michael Hardt and Antonio Negri, as the “mendicant orders of Empire,” “some of the most power pacific weapons of the new world order.”³³ The white Toyota Land Cruisers of the IHO become a representation of the international community’s response to conflict—more evocative than the armored tank—taking humanitarians into a realm of high politics, which conflicts with their humane palliation. As Michael Barnett and Thomas G. Weiss argue, “Humanitarianism has become institutionalized, internationalized, and prominent on the global agenda. It is an orienting feature of global social life that is used to justify, legitimate, and galvanize action.”³⁴ As a result of the changing nature of conflict,³⁵ humanitarianism has become embedded within contemporary conflict. Of the three responsibilities that are at the core of this book, humanitarianism (palliation) has the most well-defined set of principles and the longest practice. Although it may have different interpretations and meanings, it is recognized and accepted as a good thing, an expression of our ultimate humanity. It is, in fact, recognized as a duty or responsibility of the international community.³⁶ This makes it a very powerful tool, not only for humanitarians themselves but for other actors who may want to use it for purposes other than what its supporters and practitioners may wish.

International Criminal Justice: The Responsibility to Prosecute

The modern international criminal justice regime, too, has its roots in the attempts from the mid-nineteenth century onward to regulate how war is fought. While perhaps only successful at the margins in limiting the death and destruction of war, international humanitarian law laid the groundwork for the criminalization of certain practices of war. The introduction into international law of crimes for which individuals can be punished theoretically changes the calculus of decision makers—both those waging war and those attempting to stop a war. However, its broader positive effects—including deterring individuals from undertaking certain outlawed activities—will likely be a long time coming. But, of the three responsibilities laid out here, it is the most legalized³⁷ and embedded in international law.

While there were previous instances of individuals being prosecuted for committing atrocities in war and violating the norms of the day,³⁸ we must look to the aftermath of World War II for the true roots of the international criminal justice regime and the evolving “responsibility to prosecute.” In 1943, the Allied powers, in the Moscow Declaration, decreed that Germans who committed war crimes would be tried in the countries where the atrocities occurred, although the worst crimes would be tried by the Allies themselves. Soon after, the Allies created a UN Commission for the Investigation of War Crimes, which created a draft treaty for an international war crimes court. After the war ended, the Allies created the International Military Tribunal at Nuremburg to try those most responsible for atrocities during the war. A second tribunal was set up in Tokyo to try Japanese war criminals. The four crimes prosecuted at Nuremburg were crimes against peace, aggression, war crimes, and crimes against humanity, the latter of which had appeared after the massacres of Armenians during World War I.³⁹ The latter three would appear in the Rome Statute of the International Criminal Court more than forty years later.

The Convention on the Prevention and Punishment of the Crime of Genocide was adopted in 1948. Although the term genocide was not used until 1944,⁴⁰ and was not accepted by the judges in the Nuremberg trials,⁴¹ some of the elements of the crime of genocide did appear under the general heading of crimes against humanity, and genocide has become the über crime—the worst of all imaginable things one can do in war. As will be seen, this status leads to sometimes strange results as all other crimes are compared to it in international discourse. The crime of genocide is defined, in part, as engaging in certain actions “with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.” The actions include killing members of the groups and other elements of harm. While similar to crimes against humanity, it includes the element of intent to wipe out a group, and it is this intent which, in some way, makes it worse than the same actions without the mens rea⁴²—the intent to wipe out the group.

The 1949 Geneva Conventions represented a significant point in the history of the attempt to “humanize” war. In addition to providing a basis for humanitarian action, it also further elaborated what states and individuals could and could not do during war and created a legal basis for individual responsibility for violations of the laws of war—war crimes. However, while the International Law Commission investigated the creation of a court to try individuals for international crimes,⁴³ and other international conventions were created to outlaw associated human rights abuses, such as the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Cold War prevented any significant development. This changed in the 1990s when, in the aftermath of the Cold War, the international community was faced with a number of conflicts that seemed to defy adequate UN involvement to properly address and stop the conflict.

International Criminal Justice During and After Conflict

In 1991 war broke out in Yugoslavia as, in the aftermath of the end of the Cold War, parts of the country attempted to break away and create their own, independent countries. One significant element of the war was the ethnic dimension, as people were targeted because of who they were. Thus Bosniaks—Muslim Bosnians—were killed or pushed out of areas to create ethnically “pure” areas for Serbs and Croats. This became known as “ethnic cleansing.” This term was used instead of genocide—even though many of the activities fit the definition of genocide—to reduce pressure on the international community to intervene.⁴⁴ The Genocide Convention and the “never again” norm would conspire to put pressure on the UN, and especially Western states, to intervene militarily to stop the killing and protect those being targeted. European states had an interest in the conflict in the form of the refugees flooding into Western Europe, although, rather than intervention initially, this led to the aforementioned “right to remain,” and the safe havens that turned out not to be very safe.⁴⁵

While the UN put in place a peacekeeping force, the UN Protection Force (UNPROFOR), it was relatively weak, without a robust mandate for civilian protection or the resources to carry out such a mandate. And the humanitarian response was hampered by parties to the conflict. Eventually, three years into the conflict, NATO took robust military action, which eventually led to an end to the fighting.⁴⁶ Before that, however, the UN Security Council created the International Criminal Tribunal for the Former Yugoslavia (ICTY) to try individuals from all sides in the conflict. It was the first time since the end of World War II that an international court had been set up to hold individuals accountable for crimes during war. While, in one sense, this represented an effort to divert attention from the fact that the Security Council had done essentially nothing to stop the fighting and ethnic cleansing (toothless peacekeepers and vast quantities of humanitarian aid notwithstanding), it served to resurrect the principles of Nuremberg. It was also important because it was the Security Council, the main body with a mandate to deal with the biggest issues of international security, that created the court. It firmly put international criminal justice on the international agenda. Given that the court was set up to prosecute individuals who were involved in an ongoing conflict, the ICTY created problems for those attempting to bring the fighting to an end. Indeed, it created incentives to continue fighting rather than come to an accommodation to end the war. If the war ended, those with outstanding arrest warrants might be arrested. The fact that it took sixteen years to arrest the last suspect on the ICTY docket, Ratko Mladic, and thirteen years to arrest his co-defendant Radovan Karadzic might hearten those who are facing such situations. Yet, they are, in the end, facing justice, as did former Serbian president Slobodan Milosevic, who was indicted in 1999 during the war in Kosovo and sent to The Hague in 2001—although he eventually died in jail before the trial was over.

The next phase in the reinvigoration of the international criminal justice regime came in 1994, when the UN Security Council created the International Criminal Tribunal for Rwanda (ICTR) in the wake of a genocide that killed 800,000 people. As will be seen in the next chapter, the UN utterly failed to prevent or stop the genocide. Nor did it adequately address the humanitarian crisis following the genocide when more than two million refugees fled to neighboring countries, setting the stage for an even bigger conflict in Zaire. However, the ICTR did allow some small measure of attention to be diverted from the failure of the international community to act. International courts thus became a substitute, yet again, for robust action to stop mass atrocities. Yet, the very fact that there was a felt need to cover up the failure to respond illustrated the effect of the “never again” norm, which would culminate in the responsibility to protect. Why try to cover up inaction unless there was an expectation that the UN, the Security Council, states—somebody—should respond?

Universal Jurisdiction

In the 1990s, another innovation in international criminal justice came to the fore with the expansion of the practice of universal jurisdiction. According to the Princeton Principles on Universal Jurisdiction, “Universal jurisdiction is criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.”⁴⁷

Thus, according to this principle, one state may arrest or try somebody from another state who committed a crime—in this case, genocide, crimes against humanity, and war crimes—even though the crimes were not committed on the territory of the first state, the crimes were not committed by a national of the first state, and there is not necessarily any direct connection to the first state. The argument is that the crimes have transcended nationality and become international crimes, and thus all states have an interest in seeing that individuals who commit these crimes are punished and thus can claim jurisdiction over such individuals “as a trustee or agent of the international community.”⁴⁸

Although universal jurisdiction is still a highly contested concept, it gained currency in the 1990s as Western states started to initiate proceedings against numerous individuals. Perhaps the most famous was the case initiated by Spain against former Chilean president Augusto Pinochet.⁴⁹ However, a number of other countries have also begun proceedings against, or tried individuals for, the aforementioned crimes, including eight EU countries. Some of these have been against non-Africans—including U.S., Israeli, and Chinese leaders (prosecutions of which have foundered on the shoals of global power politics)—but many have been against Africans, involving cases from at least twelve African countries. Of the twenty-seven universal jurisdiction cases being pursued by EU states in 2009, ten were against Africans.⁵⁰ This focus on Africa has contributed to tensions between the African Union and supporters of international criminal justice mechanisms⁵¹—as will be seen in particular in the chapter on Darfur. There has been movement away from universal jurisdiction in some Western European countries, particularly as a backlash against attempts to indict Israeli and U.S. officials,⁵² but it remains a significant element of the international criminal justice regime.

The International Criminal Court: Institutionalizing the Responsibility to Prosecute

In 1998 the pinnacle of the modern international criminal justice regime was created with the passing of the Rome Statute of the International Criminal Court. More than 160 states were gathered in Rome, of which 120 voted in favor, 21 abstained, and 7 voted against, including only one African country—Libya.⁵³ It came into existence in 2002 when the required number of states had ratified the statute, which coincided with the creation of the Special Court for Sierra Leone—a domestic-international hybrid court created by the UN—and the development of another hybrid court in Cambodia. The creation of the ICC was a culmination of post-Cold War democratization, expansion of global governance and global institutions, and widespread recognition, and implementation, of human rights standards. It was a partial implementation of the “never again” norm, which, until Bosnia and Rwanda, had lain dormant since the Holocaust.⁵⁴

The Rome Statute enshrines in international law individual criminal responsibility for genocide, crimes against humanity, war crimes, and aggression.⁵⁵ Furthermore, it created responsibilities for states parties. They accept the jurisdiction of the Court (Article 12), are required to arrest and surrender to the Court individuals for whom an arrest warrant has been issued (Article 89), and must provide other cooperation the Court may request (Article 93). As we shall see, it is precisely on the issue of cooperation, including arrest and surrender, on which there has been much conflict in Africa. And while the ICC is an independent entity, accountable to the states parties, it also has a relationship with the UN Security Council. There are three ways a case may come before the Court. According to Article 13, a state party may refer a case over which the Court would have jurisdiction to the Prosecutor, the Prosecutor may initiate an investigation, or the Security Council may refer a situation to the Court acting under Chapter VII of the UN Charter. Under Article 16, the Security Council may also defer an investigation or prosecution for up to a renewable twelve-month period.

The ICC has had a somewhat rocky early history. None of the major global powers—the United States, Russia, or China—are members. The United States was one of its early supporters, but for a variety of reasons voted against the Rome Statute in 1998, joining China, Iraq, Israel, Libya, Qatar, and Yemen. President Clinton did sign the Statute on 31 December 2000—the last day to sign without having to directly accede to the statute. A year and a half later President Bush “de-signed” the statute, declaring that the United States would not be bound by it. For the next few years the United States actively tried to impede the functioning of the ICC. Congress passed the American Service-Members’ Protection Act in 2002, which prevented the United States from providing military assistance to any country that had ratified the Rome Statute, and forced aid recipients to sign so-called Article 98 agreements in which they declared that they would not send any U.S. citizen to the ICC in The Hague. The U.S. softened its stance in 2005 when it allowed the UN Security Council to refer the situation in Darfur to the ICC, and has gradually further engaged with the court in the ensuing years, particularly after the Obama administration came to power. U.S. wariness and opposition to the ICC has both domestic ideational and international realpolitik roots,⁵⁶ which have not been resolved, although the U.S. has become more open to the ICC during the Obama administration.⁵⁷ Core issues have to do with the fact of the independent prosecutor and that the ICC is only loosely tied to the UN Security Council. The U.S. expresses concern about “political” prosecutions of U.S. citizens. Further, while the Security Council is able to refer situations to the ICC for investigation, and can temporarily suspend proceedings in a particular case, it is not beholden to the Security Council, where the U.S. exerts much power and has a veto. The ICC is thus more independent than the U.S. (and China and Russia) would like.

Although an expression of global support for human rights—which are frequently seen as in opposition to, or free from, politics—the ICC is intimately bound up in global politics. It was created through a global political process, it has ties to the most power global political body—the UN Security Council—and it touches on the most sensitive global political issues. It threatens presidents and prime ministers, as evidenced by the arrest warrants for President Omar al Bashir of Sudan and Moammar Qaddafi of Libya. It is embedded within contemporary conflict, as those who are engaging in violent conflict and carrying out some of the world’s worst atrocities are subject to being arrested and sent to The Hague, and it has been invoked as a conflict management tool. One hope of its supporters is that it will deter leaders and individuals from initiating conflict and engaging in atrocities in the first place, although that hope seems far off. Although it is impossible to prove the negative, there is only minimal evidence that it has deterred anybody from doing unspeakable things. It will likely require a concerted record of numerous successful prosecutions before that hope might be realized. And, it is at the core of accusations of neocolonialism⁵⁸ since all of the investigations and active cases are in the developing world while the most powerful countries in the world are exempted from its reach.

Indeed, all of the active cases the ICC is prosecuting are in Africa.⁵⁹ Prosecutions are ongoing in cases related to Uganda, the Democratic Republic of the Congo (DRC), the Central African Republic (CAR), Darfur, Kenya, and Côte d’Ivoire. The Prosecutor is also investigating the situation in Mali. Other potential situations for investigation include Afghanistan, Georgia, Colombia, Guinea, Honduras, Korea, and Nigeria, although they are only at the preliminary stages. The ICC also considered the situation in Palestine, deciding that it lacked jurisdiction, since it was unclear whether or not Palestine constituted a state⁶⁰—although this might change now that Palestine has been admitted to the UN as a nonmember observer state.

The International Criminal Justice Problematique

The world thus has a functioning, if still under development, institution to try individuals accused of committing the worst atrocities. Criminal justice is, by its very nature, retrospective, but the ICC is embedded within contemporary global political realities and has been called to perform a prospective function—deterrence. It has also been deployed in the midst of conflict to perform a conflict management role—induce leaders to stop their atrocities or force them to step down. All three of these functions are highly problematic. It cannot deter until there is enough evidence to convince potential war criminals that there is a high likelihood that they will eventually get caught and be taken to The Hague to stand trial. We are not anywhere near there yet; indeed, the sixteen years it took to capture Ratko Mladic is unlikely to give an Omar al Bashir or a Moammar Qaddafi pause. It also assumes that such individuals are able to make rational calculations with regard to the possible consequences of their actions, which in many cases is in serious doubt.

The conflict management role is problematic at least partially because issuing an arrest warrant for a president or general in the midst of an ongoing conflict is just as likely to create an incentive to continue fighting as it is to induce them to stop. If one sees only the possibility of being arrested once a conflict ends, it is not likely that a president or general would just give up and end the conflict. The Security Council might use an ICC arrest warrant as a bargaining chip—as Radovan Karadzic argued U.S. envoy Richard Holbrooke did⁶¹—but even if this was done in good faith by the Security Council, it does not control the ICC. It can temporarily suspend proceedings for up to a year—indefinitely renewable—but it cannot permanently end an investigation or withdraw an arrest warrant—only the ICC can do that. And given the varying global political agendas of members of the Security Council, there is no guarantee that it would vote to suspend proceedings—a leader would do well not to base his or her future on the vagaries of global political will and expediency. Further, declaring an individual a war criminal and then withdrawing an arrest warrant does little to further the global human rights project embodied in the ICC. It would undermine the potential deterrent aspect of the ICC and signal that the ICC was nothing more than a global political tool of the great powers with little to do with protecting human rights.

Finally, its retrospective nature, while laudable and a significant incarnation of the global human rights project, is rendered problematic as it may interfere with domestic peace efforts. Such concerns arose in Uganda where the government instituted an amnesty law to induce members of the Lord’s Resistance Army (LRA) to leave the LRA and be reintegrated into society.

International criminal justice, as embodied in the ICC and other institutions, is the most legalized and legally recognized of the three responsibilities, which makes it in some ways the safest legally—and morally—to invoke. Yet, since international law itself is a highly political realm, it should come as no surprise that the ICC can become highly embedded within global and domestic political processes, raising questions about how and when the ICC is—and should be—invoked. The failure of the UN Security Council to refer the situation in Syria to the ICC, even in the face of clear and ongoing atrocities, puts these questions in high relief.

The Responsibility to Protect

The most recently recognized responsibility, but the one that also provides the conceptual justification for the prior responsibilities qua responsibilities, is firmly embedded within, but also challenges, the contemporary state system. By labeling it a responsibility, the international community recognizes changes in the relationship between state sovereignty and human rights while also accepting the necessity of international action at times. However, R2P comes with many caveats, and its status as international law is less than certain. It is frequently equated with humanitarian intervention,⁶² a concept with uncertain legal qualities frequently deployed by critics to imply neocolonialism. The concept as originally put forth under its current name goes far beyond humanitarian intervention. Yet, when discussing the types of situations of concern in this book, it is precisely the interventionist aspects that are most salient and most unique from a normative perspective. To understand the current conception(s) of R2P, however, a very brief overview of the practice of humanitarian intervention is in order to illustrate the changing debates and status within international relations.

The Practice of Humanitarian Intervention

Most histories of the practice of humanitarian intervention begin in the nineteenth century.⁶³ During this period there were a number of military interventions in Europe, justifications for which included “proto-humanitarian” arguments. The defining features of the discourse and practice of humanitarian intervention during this period were twofold. First, as today, not all situations that might have demanded a robust response actually received one. Second, the class of people deemed worthy of being rescued was significantly circumscribed. While the European powers intervened to save noncitizens, they were noncitizens of a particular type. One needed to be Christian—and indeed the right kind of Christian—to be worthy of saving. This contrasts markedly with today’s universalistic conceptions of human rights and humanity, and arguments and actions to protect noncitizens around the world, although an expanded conception of humanity is no guarantee of action.

Although this expanded humanity and human rights concern was evident from the end of World War II, the Cold War and decolonization prevented any type of intervention on humanitarian grounds—or certainly the use of humanitarian arguments to justify intervention. The Cold War paralyzed the newly created United Nations and created concerns that military adventures might lead to superpower confrontation. Decolonization entrenched notions of absolute sovereignty and revitalized the doctrine of nonintervention. There were three interventions in the 1970s that many point to as possible humanitarian interventions, even though humanitarian justifications were not ultimately deployed in any of these situations. India intervened in East Pakistan in 1971 in response to massacres by the Pakistani military; Tanzania intervened in Uganda in 1979 to overthrow Idi Amin; and Vietnam pushed the Khmer Rouge from power in Cambodia in 1979. All three cases were relatively limited ventures (certainly from the perspective of the interventions that were to come) and were justified with nonhumanitarian arguments—and indeed in all three cases there were traditional regional strategic interests involved. They all also had the effect of saving lives—and getting rid of regimes that engaged in widespread gross human rights violations.⁶⁴ Yet the international community was not ready to accept humanitarian arguments. The doctrine of nonintervention would have prevented such arguments from succeeding. This highlights a significant change in global outlook as humanitarian arguments are given much more consideration today, such that states attempt to use humanitarian arguments for very unhumanitarian reasons—as well as for more evidently humanitarian purposes.

The post-Cold War world of the 1990s brought about conceptual and practical challenges to understandings of sovereignty and nonintervention. A raft of “new wars”⁶⁵ erupted in the aftermath of the Cold War as the Soviet Union fell apart and developing states lost their patrons. The first post-Cold War (or perhaps end of Cold War) intervention took place in Liberia as the Economic Community of West African States (ECOWAS) intervened in the civil war, which featured mass human rights violations and threatened regional stability. It did not have the initial approval of the UN Security Council, although it did receive the general approval of the international community afterwards. More important, however, was a declaration by the secretary-general of the Organization of African Unity (OAU), Salim A. Salim, who said that African governments who engaged in human rights abuses could no longer hide behind sovereignty.⁶⁶ This was a radical suggestion in 1990, and while still controversial, would attract much more support in Africa today. The 1991 creation of “no-fly zones” by the United States, UK and France in Iraq was intended to protect populations that were being persecuted by the Saddam Hussein regime. Operation Provide Comfort reflected a partial normative change as France argued that widespread human rights violations could legitimate UN Security Council action even if not identified as a threat to international peace and security, the traditional justification for forceful UN action.⁶⁷ Other interventions did see human rights and humanitarian concerns cited as threats to international peace and security, thus initiating an ideational change in Security Council practice.⁶⁸ In 1992–93 the United States undertook Operation Restore Hope in Somalia, taking over from a failed UN mission. The Security Council justification made the direct connection between humanitarian crises and international peace and security. However, the actual level of commitment to humanitarian objectives was demonstrated when the United States pulled out after only a few months when its forces suffered more—and particularly humiliating—casualties than expected.

I have already mentioned the international failures in Bosnia and Rwanda. Although the intervention in Bosnia began as a rather lackluster affair, the massacre of 8,000 people in Srebrenica spurred NATO to action. It engaged in a bombing campaign that eventually led to an end to the war. But, overall, the UN experience in Bosnia was rather ignominious. This should not have been surprising, however, given that a year before the UN allowed 8,000 people to be killed in Srebrenica, it allowed 800,000 to be killed in Rwanda. The issue in Rwanda was not sovereignty. Rather, it was that no country (except for France, late in the day, and very ambiguously) had any interest in sending in troops to stop the slaughter. European states found the interest five years later in Kosovo when NATO intervened to protect Armenian Kosovars from Serbia. This, too, was an ambiguous intervention, given that the larger Serbian human rights abuses seemed to come after the intervention started.⁶⁹ And, the intervention occurred in the absence of UN Security Council approval, since any Security Council resolution would have been vetoed by Russia, given its ties to Serbia. As with Bosnia, there were traditional state interests involved—the general stability of the region, as well as the prospect of yet more refugees flowing into Western Europe. However, Kosovo also represented an assertion of a new doctrine on the part of some states that justified (unilateral) military intervention on humanitarian grounds.

Recognizing Responsibilities

During the 1990s, and in the context of changing ideas about human rights and the above mentioned interventions (or noninterventions), a number of authors addressed the balance between sovereignty and human rights.⁷⁰ They argued that rather than being in opposition, human rights were constitutive of state sovereignty. If a government abused its people, it could lose legitimacy and the state might lose its immunity to nonintervention. Further, there was discussion about whether there was a right or a duty to intervene, and under what conditions. The developing norm of a right and, indeed, a duty to intervene to protect gross violations of human rights was given voice in 2001 by the Canadian-sponsored International Commission on Intervention and State Sovereignty (ICISS) in a report entitled The Responsibility to Protect.⁷¹ It recognized a shift in the human rights versus state sovereignty discourse by arguing that claims to sovereignty entailed responsibilities. It also moved the debate away from discussing a right to intervene to a responsibility to protect those who might be threatened by gross violations of human rights or humanitarian crises. The ICISS noted three main responsibilities: to prevent genocide and other humanitarian catastrophes, to react when such situations occur, and to rebuild after a complex humanitarian emergency has ended.

This norm was endorsed by the UN Secretary-General’s High-level Panel on Threats, Challenges and Change,⁷² and UN Secretary-General Kofi Annan highlighted and affirmed this developing norm intended to set the agenda for the 2005 World Summit.⁷³ He also called on the Security Council to develop principles for the use of force. The 2005 World Summit Outcome document stated that the international community has a responsibility to address widespread gross violations of human rights, even if it means using force. However, the World Summit endorsed a somewhat different and watered down version of the ICISS proposal.⁷⁴ The norm has been more forcefully recognized by the African Union in its Constitutive Act. Article 4h states the following principle: “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.” While there is ongoing rhetoric in Africa regarding the neocolonial character of humanitarian intervention, and much debate about the proper balance between human rights and sovereignty, this was still a stunning reversal—three years before the World Summit—of the unflinching support for absolute sovereignty and nonintervention, and indicates continuing global normative development, even if it has yet to be invoked.

Prevention

The ICISS identified prevention as one of the three main elements of R2P. The World Summit recognized the responsibility of the international community to prevent genocide, war crimes, ethnic cleansing, and crimes against humanity. However, of the twenty mentions of prevention in the outcome document, more than half were focused on preventing conflict. There is a significant connection between conflict and human rights abuses, since the crimes listed above generally occur within the context of war. Yet this is not a new responsibility for the international community. Indeed, the UN was founded to prevent war. That it has failed spectacularly many times in its more than six decades does not negate that this is a well-established responsibility on the part of states. Further, such prevention can include a wide variety of activities, such as development, which, while plausibly related to preventing the conditions under which genocide might occur, are also conceptually distinct from the core idea of protecting people from the most heinous of mass crimes.⁷⁵

Alex Bellamy argues that there are four main tasks that the international community can engage in to prevent such atrocities: early warning, preventive diplomacy, ending impunity, and preventive deployments.⁷⁶ While these are all worthwhile activities, the first two are already well-used, if not always effective, tools. Ending impunity has already been recognized through the creation of the International Tribunals for the Former Yugoslavia and Rwanda, and the creation of the International Criminal Court. However, the protective value of such measures is still in doubt. While indicting a head of state or rebel leader might serve as pressure or an inducement to stop fighting, it may also create conditions where the reverse inducements are created. Such leaders and others may have an incentive to continue fighting because otherwise they might be vulnerable to capture and transfer to the Hague. We have a very small sample of such actions taking place before or during a conflict from which to generalize. And, so far, the latter dynamic seems more prevalent. Lord’s Resistance Army leader Joseph Kony was reluctant to sign a peace agreement in Uganda as long as there was an ICC arrest warrant for him, and Omar al Bashir of the Sudan has, so far, been defiant of the ICC since an arrest warrant was issued for him. Similarly, Qaddafi demonstrated little interest in ending his human rights abuses and stepping down before he was forcibly removed from power. Thus, such international criminal justice measures do not, at present anyway, properly fall under the heading of prevention. The fact that the Rwandan genocide might have been prevented if the UN peacekeeping mission on the ground had been listened to when its commander presented evidence of the impending genocide, calls into question the willingness of the international community to engage in the necessary preventive activities.

Thus, prevention may include activities only tangentially related to heading off such mass atrocities, and it includes activities that have long been in the international community’s toolbox but have not been implemented to the extent necessary. As such, they are not necessarily the most important part of the newly recognized responsibility to protect. Further, in a rather fundamental sense they do not (with the possible exception of preventive deployment) protect in the sense of defending or shielding from harm. Preventive activities are obviously extremely important, but in the context of an ongoing genocide not as relevant as other activities.

Reaction

Paragraph 139 of the Outcome Document, which lays out the international community’s commitment to react to genocide and similar situations, begins by mentioning peaceful means of response, including humanitarian means. And paragraphs 132 and 133 (although not under the heading of R2P) discuss protecting IDPs and refugees, two of the most vulnerable groups in such situations. The question becomes, however, to what extent are humanitarian activities actually protective. As we shall see below, while many claims are made by humanitarians about protection, the actual protection they can provide is quite modest.

Paragraph 139 then continues to commit the UN, on a case by case basis, to taking collective action under Chapter VII of the UN Charter—that is, using force against the wishes of a state. Such military protection (as opposed to the humanitarian protection discussed above) involves what is frequently called humanitarian intervention—the use of military force to compel a government to stop human rights abuses or to otherwise stop such abuses. The force may overthrow a government committing human rights abuses, apply other military pressure (such as the NATO bombing in Kosovo), serve as an interpositional force between warring parties committing human rights abuses, physically protect vulnerable populations, provide relief aid and ensure that food, medical supplies, and so forth can be delivered. This last activity may not have the same protective value as physically shielding people from harm, at least not in the long term. Since humanitarian military action can have many goals and outcomes, it is important to be clear about what one is advocating or pointing to as a responsibility in a particular situation. Bellamy argues that the term humanitarian intervention was avoided because many developing countries especially were wary of such terminology, seeing it as little more than a cover for neocolonial interventions.⁷⁷ Yet this is what the UN recognized, and it represents perhaps the most important element of the R2P as elaborated by the World Summit. In fact, while the ICISS, Bellamy, and others make valid arguments that all the other activities mentioned by the ICISS and the Outcome Document are necessary in the context of mass atrocities, they pale in comparison to the potential effects—both on the ground and in the international legal and normative realm—of military intervention.

Rebuilding

The third element of R2P identified by the ICISS entails a commitment to rebuilding a society after a conflict. This includes economic development, institution building, and developing the rule of law, among other activities. Such a commitment, identified under the heading of peacebuilding rather than responsibility to protect in the Outcome Document, is relatively uncontroversial—although it raises questions of neocolonialism for some developing countries and the extent of the international community’s presence in postconflict societies. Such activities, to the extent that they contribute to the strengthening of a viable, peaceful state, may aid in preventing recurrence of conflict. However, with regard to the issue at hand, how the international community responds to an extant genocide or complex humanitarian emergency is of secondary importance. It may contribute to the protection of people after a conflict ends, but it does not protect people in the midst of conflict.

Thus, while the original conception of R2P as put forth by the ICISS, and partly endorsed by the World Summit, was very wide-ranging, if one is interested in effective, long-term protection of people caught in mass atrocity situations, the potentially most important element is the commitment to use Chapter VII enforcement mechanisms. This is because in some situations this may be the only way to protect people from being slaughtered. Further, it is a significant, if still somewhat ambiguous, affirmation of evolving normative and practical developments away from strict adherence to sovereignty. This is not to say that such actions may be appropriate in all instances, or that there may not be genuine disagreement about the relevant course of action. And it certainly does not mean that such tools will be used in all, or even many, situations where large numbers of people are being killed. Indeed, as we have seen, there are two other main responses the international community uses, which are conceptually distinct from military intervention, are possibly less effective, and may actually impede the use of more effective measures.

Protection

From the previous discussion, we have seen the development of three broad areas of human rights norms and practices that have been recognized in some manner or another as responsibilities of the international community: (1) palliate—ensure that people caught in the midst of conflict are fed and sheltered and provided with medical attention; (2) prosecute—eliminate impunity for those who commit genocide, crimes against humanity, and war crimes; and (3) protect—ensure that those at risk of genocide and other mass atrocities are not killed. All of these have humanitarian and human rights characteristics, but to the extent a division can be created between the two, they all have a different balance. Palliation, while part of the broad concern with the other that characterizes human rights, does not have the same connotations with regard to changing society. Rather, it responds to the situation in the most minimal way possible, although those who practice or advocate rights-based humanitarianism alter the balance in favor of advocating for change while also offering the humanitarian response. Prosecution is the enforcement element of the development of international humanitarian law that was created to provide minimal levels of protection for particular classes of people in the midst of conflict. Yet it is also part of the broader human rights project that attempts to remove impunity for those who engage in the worst human rights violations. Protection is the most far reaching. It has a broad agenda that aims to prevent large-scale human rights abuses, stop ongoing abuses, and rebuild societies after the abuses end. Yet the most important element of this new norm, principle, or whatever one calls it, is the stopping or reacting element. This responsibility to react is what used to be called humanitarian intervention. But it is the formal recognition of the intervention—that is using military force⁷⁸—element for the humanitarian purpose of keeping people alive that is new and also the part of R2P that actually protects in the context of mass atrocities. Yet, as we have seen, all three practices make claims about protection. We thus need to further investigate the meaning of protection.

Humanitarian Protection

Humanitarian organizations like UNHCR or the ICRC see several protective elements to their work. Providing food, shelter, medical aid, and other resources to refugees and others affected by war and genocide have direct protective benefits for the individuals affected—it can literally save their lives. However, beyond this direct effect, other types of protection can be noted. UNHCR, for example, argues that merely having a presence on the ground in a conflict situation can be a form of protection. Their presence is an indication that the international community is watching, and can thus serve as a deterrent. However, sometimes that is not enough and it becomes clear that all the international community is doing is watching—and hoping that humanitarianism will suffice. UNHCR also talks about legal protection—which is its core mandate. This involves ensuring that refugees’ and asylum seekers’ rights are protected—making sure that states live up to their legal obligations under international refugee law, including the prohibition on nonrefoulement, obligations to examine asylum claims, and requirements for providing access to resources for refugees.⁷⁹

The ICRC has a similar mandate, and although it frequently talks about relief and protection, David Forsythe argues that “the ICRC’s humanitarian protection in the field encompasses primarily traditional protection and relief protection.”⁸⁰ Traditional protection is essentially identical to UNHCR’s legal protection. Thus, as with UNHCR, the ICRC works to protect individuals by ensuring that states live up to their international human rights responsibilities. Its prison visits seek to accomplish similar goals, Forsythe points out, while “In relief protection there can be an element of supervision and representation, along with the central effort to provide the goods and services necessary for minimal human dignity in conflict situations.”

Oxfam, an NGO that frequently works in the midst of conflict situations, recognizes the limits of its protection capabilities: “Oxfam … is not a specialist protection organisation…. For us, protection means improving the safety of civilians in our humanitarian programming. In practice, it means trying to reduce the threats of violence, coercion and deliberate deprivation to civilians, and reducing their vulnerability to these threats.”⁸¹ As an NGO, while it wants to contribute to the protection of civilians under its care, it is constrained in what it can actually accomplish. It further constrains itself by significantly restricting its interactions with peacekeeping and other military forces that may sometimes be needed to deliver assistance—and thus protection.⁸²

Thus, humanitarian action can include both traditional (legal) protection and relief (material) protection. Both are necessary for maintaining human dignity and both are responsibilities of the international community. Yet the international community frequently chooses to emphasize humanitarian protection, which, while immediate, only provides partial protection and does not address longer term protection issues, at the expense of root cause, longer term options. Further, while the terminology of protection may be used, such organizations do not have the mandate or capabilities to actually physically protect people. They are not armed and, if an army or group of rebels decides to enter an IDP camp, there is little they can do to stop them. Indeed, as noted above, such activities might more properly be described as palliation rather than protection in that in the context of genocide or ethnic cleansing they may mitigate suffering but do little to provide robust, and long-term, action to stop the killing. Such activities are frequently undertaken by nonstate entities that do not have the capabilities or mandate to do anything other than deliver food and water and medical care—obviously worthwhile endeavors, but not backed up by the full authority and force of the UN or individual states. And, even when the authority of the UN is present, if it is not backed up by the power of the UN, that authority may be meaningless.

Prosecution Protection

Does the increasingly elaborate international criminal justice regime, with its courts in The Hague and practices of universal jurisdiction, protect people? We consider the rule of law to be a cornerstone of a peaceful and just society. We have domestic courts and legal proceedings designed to punish wrongdoers. This legal edifice is also assumed to deter people from committing crimes in the first place. Thus, through deterrence it protects people from harm, and by putting criminals behind bars it keeps criminals from harming anybody else. The deterrent effect of domestic legal systems is difficult to measure.⁸³ Further, the legal system relies on police officers to arrest wrongdoers, as well as be a presence on the street to deter wrongdoing and physically protect people. It is far from perfect, but domestic criminal justice systems do provide protection, if by no means total. The international criminal justice regime works very differently. It was conceived of as a retrospective system that would deal with people after they had committed their atrocities, which is of little comfort to the thousands or millions of civilians who might die in a conflict. Further, compared to the crimes committed and lives lost, extraordinarily few people have been tried before international courts or domestic universal jurisdiction proceedings. And it can be no other way. Indeed, the first Prosecutor of the ICC stated that his aim was to go after maybe a half dozen of those most responsible in a particular conflict.⁸⁴ This will leave hundreds and thousands of people who have committed serious crimes in a conflict to go free. The ICC has no resources to extend beyond that small number of people. Nor does it have the ability to get its hands on any more. It is completely reliant on states and the UN to deliver suspects to its door in The Hague, and unlike domestic contexts where there is a police force whose job is to do exactly that, the Prosecutor does not have his or her own police force to go out and arrest people. They are completely reliant on a very ad hoc process that only functions when states or other actors decide it is in their interest to arrest somebody,⁸⁵ and even if it is in their interest, they may not have the means. The fact that it took sixteen years to arrest Ratko Mladic indicates that justice is far from automatic. The protective effect of deterrence, unsure as it is in domestic contexts, is, at the present time, close to nonexistent, and will only have a chance of having any significant value after a long record of successful prosecutions in The Hague is assembled, with alleged perpetrators coming to trial in much less than sixteen years.

Although international criminal justice is retrospective in nature, there are now attempts to use it to affect the course of conflicts in which the crimes are being carried out. The involvement of the ICC is sought by parties or observers to the conflict as a conflict management strategy.⁸⁶ Initial experience in places such as Darfur and Libya indicate the extreme limits of the ability to use threats of being sent to The Hague to alter perpetrators’ behavior. And without stopping the killing, it is difficult to make the case for the protective effect of international criminal justice. At the same time, invoking the ICC can make the protection of people even more difficult. Yet it is difficult to fault the advocates of the ICC and similar mechanisms, for certainly we do want the purveyors of atrocity to be held accountable. But, again, we must be modest in our expectations.

Military Protection

R2P includes many activities, but if we are interested in keeping people from being killed in an atrocity situation, it is the reactive, or active, element that is crucial. While the term humanitarian intervention has fallen out of favor, this is the type of activity that could—possibly—protect people. While humanitarians can keep people alive—at least those to which they have access—if a group is intending to kill people in a refugee or IDP camp, for example, there is little they can do. Food will not stop the janjaweed in Darfur. Nor will all the international legal principles advocated by the committed people at the ICRC or UNHCR or, for that matter, the legal machinations and pronouncements emanating from The Hague. No, what is sometimes needed is a soldier (or a brigade) with a gun standing at the entrance to a refugee camp with a mandate and a will to use it against those who want to rape or kill the people in the refugee camp. And they must be there night after night, and at times they must go after the people intent on massacres and either bring them to justice or—and let’s be clear about what is required—kill them. We have seen instances where the international community has the will to countenance and support such activity. However, the overall record is dominated by abject failure, the Srebrenica massacre and the Rwandan genocide being only two of countless examples where those with the ability to intervene forcefully have not recognized and acted on their responsibilities.

Further, the “hard edge” of R2P is hardly without problems. There are legal issues, although these are becoming less important, especially with regard to UN action. There are practical issues. You need to find the right people and the right equipment and get them to the right place at the right time. The people—and those commanding them—have to be willing to use that equipment. The resources deployed must be appropriate for the job at hand. And you need to make sure you do not make the situation worse, by inflaming the situation, killing the wrong people, or affecting, for example, the delivery of humanitarian assistance. These are not easy things to address, and there are constant prudential debates about the appropriateness of a particular response in a particular situation. And there may be situations where you just cannot do what is needed—or at least all of it. You need to recognize that not every situation can be addressed. In other words, there are limits. Too often, however, the international community has not demonstrated a willingness to explore those limits.

Protection of Civilians

R2P is an inherently political construct. It gets to the heart of core issues of sovereignty and war and peace and global power politics. And while it has been superficially accepted by the World Summit, the UN Security Council, and in other fora, it is still highly controversial. It attracts suspicion in parts of the world that have experienced colonialism and military intervention for less than humanitarian reasons—even if the notional balance in the relationship between sovereignty and human rights has changed. The use of humanitarian arguments to justify the war in Iraq in 2003 certainly does not help the depoliticization of R2P and does little to quell the suspicion. However, parallel with, and indeed prior to, the R2P debate has been another relevant discourse having to do with the protection of civilians (PoC). PoC partially, but not completely, overlaps with R2P. It aims to protect people in the midst of conflict, and has been included in Security Council resolutions mandating peacekeeping operations since 1999. It is separate from debates over military intervention and builds upon a growing consensus about the need to protect civilians from the effects of conflict. While it may contain a military element in the form of peacekeeping, it is very different from R2P since peacekeeping is (generally) more consensual, and PoC has a much wider array of (softer) tools at its disposal.

PoC is understood as a conceptual and operational construct and has a complex relationship with R2P. Like R2P, it has its roots in the failures of the 1990s, but while its evolution has paralleled R2P, it has come to mean something somewhat distinct and more palatable for many countries than R2P.⁸⁷ In 1999, Secretary-General Annan stated in his Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict that PoC “is fundamental to the central mandate of the Organization.”⁸⁸ In 2004, the Secretary-General, noting that PoC had already been included in a number of peacekeeping operations, called for “the rapid deployment of a force to protect civilians.”⁸⁹ The connection to peacekeeping is key since it is the context of peacekeeping that makes PoC more palatable than R2P for many UN member states.

The Security Council first engaged with the protection of civilians debate in 1999 when it passed Resolution 1265. It followed this up with Resolutions 1674 in 2006 and 1894 in 2009, which were much stronger in both their condemnation of violence against civilians and the stated willingness to act. The UN General Assembly’s Special Committee on Peacekeeping, known as the C-34, agreed to include a PoC subsection in its annual report.⁹⁰

The debate over, and application of, PoC has been particularly prominent in the DRC. However, we must start with the multiple interpretations of PoC. The standard starting point is the definition of protection used by the ICRC, which has been adopted by the UN Inter-Agency Standing Committee (IASC), the body created by the General Assembly to coordinate UN and non-UN humanitarian actors: “Protection is defined as all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of the relevant bodies of law, namely human rights law, international humanitarian law and refugee law.”⁹¹ This is very broad and encompasses a wide variety of activities, which, according to the ICRC, include responsive activities—those which directly respond to an abuse; remedial action—restoring dignity and living conditions; and environment-building—creating an environment where individuals can enjoy their full panoply of rights. This is so broad as to be meaningless. It is, in one sense, coterminus with the global human rights project. How it is interpreted and implemented is key. The definition from the Office for the Coordination of Humanitarian Assistance (OCHA) adapts this broad understanding:

A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.⁹²

This definition was accepted by the UN Mission in Sudan (UNMIS) in the draft UNMIS POC Strategy-Security Concept.⁹³ The understanding of what this means for UNMIS is narrowed a bit in the Concept:

The full gamut of POC is very wide. UNMIS is taking a layered approach to developing an UNMIS-specific POC strategy. Three layers of protection will be covered in the strategy: protection of civilians under imminent threat of physical violence; protection of civilians with regard to securing access to humanitarian and relief activities; and the longer-term aspect of protection in the context of Human Rights (HR) and Conflict Prevention and Management. This concept covers the inner layer of POC within the UNMIS POC Strategy—the protection of civilians under imminent threat of violence…. Sexual, gender or child violence will not be treated separately in this Concept as they are all forms of “physical violence.”

Thus, while still broad, it focuses more on physical protection, but also on protecting humanitarian activities. It is also tied into broader political goals of conflict management and protection. At the end it also points to a key issue in the context of the development of PoC, namely that particular groups have also been singled out for protection treatment in various UN resolutions—for example, women⁹⁴ and children.⁹⁵

PoC language was included in the mandate of ten⁹⁶ UN peacekeeping operations between 1999 and 2009, and an additional six⁹⁷ UN-sanctioned operations led by regional organizations or individual states.⁹⁸ This language frequently includes admonitions for peacekeepers “to protect civilians under imminent threat of physical violence” and to provide a “safe and secure environment.”⁹⁹ The mandate frequently also includes the caveat “without prejudice to the responsibility of the host state.”¹⁰⁰ This indicates the relationship of PoC to the core of UN peacekeeping and in particular that peacekeeping relies on the consent of the host state to operate. When the state does not facilitate the creation of a secure environment for its citizens by protecting them, or when it carries out violence itself against its citizens, PoC can be severely undermined. This highlights a key difference between R2P and PoC. While R2P is about protecting civilians, the tools available to decision makers under the heading of R2P are potentially more robust than with PoC. Under R2P, the UN can authorize the use of force against the wishes of a state, as was done in Libya. PoC relies on the consent and cooperation of the host state. There is frequently confusion about the status of PoC in the peacekeeping mandate. Even when robust Chapter VII language is included that allows the use of force—“all necessary means”—the intent of Security Council is not always clear, and frequently commanders in the field see the Chapter VII language as an add-on that fits uncomfortably with a Chapter VI core. The fact that peacekeepers have to maintain relationships with multiple partners, including the state, makes using robust force problematic. This has been a particular issue in Darfur, where the government has placed severe restrictions on peacekeepers that interfere with the PoC mandate. This is not surprising, given that it is the government that is either carrying out or supporting a large part of the violence, but it highlights the problematic nature of PoC in the context of peacekeeping. Further, peacekeepers are frequently not given the tools they need to carry out such robust action. Nor is it frequently clear to those commanders on the ground exactly how they are supposed to carry out their PoC mandate, since there is no operational guidance from the Security Council for what PoC actually means.¹⁰¹

Yet, as noted, there is a consensus within the UN regarding PoC. Because of this consensus, and the fact that it has a somewhat independent lineage from, and different connotations than, R2P, it is easier to talk about in the Security Council and other diplomatic exchanges. UN humanitarian agencies, such as UNHCR and OCHA, use the terminology of PoC rather than R2P because it describes better what they do and also seems to take politics out of the equation. Likewise, humanitarian NGOs will frequently also engage more with the PoC terminology, even when talking about R2P situations, because it makes conversation with states easier and less threatening. Humanitarian organizations may also not see the value added of R2P over PoC or the relevance of R2P to their activities. As many humanitarians will point out, PoC has been around for a while, and the protection activities they engage in do not fall under R2P. They perceive PoC as nonpolitical,¹⁰² or at least argue that PoC can be deployed nonpolitically, whereas R2P cuts to the core of issues related to sovereignty—issues they do not want to point to, even if their work raises significant issues of sovereignty. R2P is seen as not useful, and there is significant wariness about the equation of PoC and R2P, even as many PoC activities are being repackaged as R2P.¹⁰³ R2P is perceived as a Security Council concern, or something that happens in New York, whereas the more Geneva-centric humanitarian community sees PoC as much more relevant.¹⁰⁴ Some humanitarians can also be cynical and note that many concepts and developments do not actually result in much, and so they try to stay out of the entire debate.¹⁰⁵

Even though PoC may be portrayed as apolitical, it is still political since it deals with highly charged political situations, but it appears to depoliticize situations. In some situations, this may be positive since it allows states to talk about concrete measures to protect people without getting caught in the high politics of sovereignty. On the other hand, these situations are political and require political response at the highest levels, and thus PoC might undermine the debates that need to happen within the R2P framework. Further, to the extent PoC is seen as something that happens in the context of peacekeeping, it can be an impediment to genuine protection in the sense of physically protecting people under imminent threat of harm. If a peacekeeping commander needs to get the permission of the host state to fly helicopters—assuming he or she has been given helicopters and other requisite tools in the first place—his or her ability to deploy troops when and where needed to respond to that imminent threat is severely compromised. While R2P is less accepted as a political, legal, and operational concept, it does bring an element of robustness that is lacking in most peacekeeping PoC mandates and, more important, practice.

Complementary or Conflicting Responsibilities?

I have outlined above the main human rights and humanitarian tools and concepts the international community has to respond to mass atrocities and associated humanitarian crises. In one sense, they all derive from the conceptual and practical developments in the human rights and international humanitarian law regimes over perhaps the last 150 years, but in particular the last seventy years. They all have the same goal—to protect lives. One might assume, then, that they are mutually supporting. That is, the implementation of one would support the implementation of another. As we will see, however, this is not necessarily the case. Indeed, applying one or more of these responses may, in fact, get in the way of, or undermine, other responses. Further, having recourse to one may provide an excuse to diplomats and policymakers not to implement another response that may be more effective. In this section, I will briefly outline some of the conundrums faced by practitioners (see Table 1.1).

Humanitarianism, even in its most basic palliative form, can save lives. Yet, it cannot end the conflicts that lead to atrocities. This requires political action. Nor can humanitarianism save lives in all circumstances—particularly when parties to a conflict have as their goal, or significant tactic, to kill civilians or drive them out of their territory. Yet, as we shall see, the presence of humanitarians on the ground can give the illusion of adequate response when, in fact, the response is far from adequate. More robust action may be required, but the mere presence of humanitarians may reduce pressure on states to act. Thus, palliation reduces the prospects for protection. However, with rights-based humanitarianism, humanitarian actors themselves may be highlighting human rights abuses and calling for further action. This can put pressure on states to take further action, but it can also make their positions as humanitarian actors more precarious. They may either be targeted by parties to the conflict or kicked out of the country by the government, thus reducing or eliminating their ability to provide food and other resources to victims of conflict. As a result, people may die from malnutrition or lack of medical care. So the question becomes whether the greater good of a possible (if unlikely) humanitarian intervention to stop a conflict or more robustly protect civilians from attack is outweighed by the almost certain death of more people because of a lack of humanitarian assistance. This is a rather difficult decision to make. Most NGOs, because of their innate humanitarian ethos and mission, will choose to stay, although on occasion they have decided that they are doing more harm than good, thus violating the “do no harm” principle. There may thus be a negative symbiotic relationship between palliation and protection (notwithstanding humanitarian claims to protection). Palliation saves lives, but it is also significantly limited in what it can actually achieve in protecting people from violence.¹⁰⁶ It can also, at times, contribute to the continuation of a conflict, and it also provides a smokescreen for states who do not want to intervene. Calling for intervention might bring further long-term protection, although that is far from certain; it is more likely to reduce the humanitarian assistance available to victims of conflict.

Prosecution can punish people for their crimes. However, inserting prosecution into the middle of a conflict can have unforeseen consequences and require difficult trade-offs. The most obvious is that potential prosecution can have an impact on peace negotiations, with the very unhumanitarian impact of prolonging the conflict. Combatants with arrest warrants against them may be less likely to come to an accommodation, knowing what possible fate might await them. Such international action might also interfere with domestic efforts to institute amnesty laws that might contribute to peace processes and postconflict reconciliation. States that have become a party to the ICC¹⁰⁷ no longer have complete autonomy in domestic criminal affairs. At the same time, they may try to use the ICC for their own domestic purposes as a weapon in the conflict.

Furthermore, the ICC poses difficult questions and danger for both palliators and protectors. For palliators, who may have significant information that could be of use to prosecutors,¹⁰⁸ they are posed with the same question vis-à-vis intervention. Do they release the information, exposing the crimes, or pass it on to the prosecutors, thus helping to ensure that perpetrators face justice—an outcome which pretty much all palliators would support¹⁰⁹—or do they keep silent? Eric Dachy puts it starkly: “either we compromise our ability to aid victims by testifying, or we protect criminals in order to continue to provide assistance.”¹¹⁰ The former action might further one human rights goal, but it could also imperil their activities, as they are branded as informers and targeted or kicked out of the country, thus undermining their humanitarian mission. Most IHOs will follow the latter course of action for this reason, although they may quietly pass information to human rights organizations, which can thus use it for their advocacy activities. This creates a division of labor, which could have positive outcomes—the information gets out, while humanitarian organizations are not recognized as the source of the information.

In addition, ICC action might negatively affect humanitarians, even when they have no connection to the action. They can be tarred with the same brush as human rights actors. Some parties to a conflict might see them as all part of the group of internationals, and blame humanitarians for the actions of their human rights brethren, thus imperiling their actions. More generally, with the development of individual criminal responsibility, combatants have an interest in ensuring that there are no witnesses to their atrocities, including humanitarians, and thus may want to deny them access to protect themselves.¹¹¹ The ICRC has been granted a specific exemption in the Rome Statute from being called to testify,¹¹² although NGOs have not. During the Rome Statute preparatory meetings, Médecins sans Frontières (MSF) specifically did not request such an exemption, seeing such action as part of its témoignage (witnessing). At the same time, it did not want to be one of the “informal auxiliaries to the justice process” where it participated in a formal evidence gathering function (leaving that, instead, to human rights NGOs).¹¹³ Or, as will be seen, they can be used as pawns in other ways.

Also, as with palliation, prosecution can create an excuse not to intervene and protect. It is one more action that can demonstrate that states are doing “something” while not necessarily taking the action required to protect people and stop the fighting. While this should certainly not deter the prosecutors from doing their jobs, the mere fact of the existence of the ICC and other international criminal justice mechanisms can contribute to a more complicated and complex global geopolitical context in which decisions on how to respond to mass atrocities are taken. Although, in some cases, such as Syria, which lies at the heart of extremely complicated global geopolitical dynamics and which engages directly with conflicting great power interests, there is no appetite for even the ICC.

Finally, to come full circle, R2P and related PoC protection activities can have multiple possible outcomes, which may have positive or negative consequences for humanitarianism and human rights. A military intervention might just succeed and end the fighting, which in turn creates space for a political settlement. We have seen precious few of these cases. It might provide a presence, for a time, that has a significant protective effect. These situations are slightly more numerous, but the issue always becomes the will to continue the action, particularly if the interveners take increasing numbers of casualties.¹¹⁴ The intervention might also provide space for the humanitarians to do their job and deliver humanitarian assistance—although the issue of the staying power of the intervention forces will become an issue. These are all possible positive effects. But an intervention might have negative consequences. It might imperil the humanitarian mission. It might create incentives for certain parties, in particular rebel groups, to become more intransigent or otherwise encourage them, thus prolonging a conflict.¹¹⁵ It can also lead to civilian casualties. It must be recognized from the start of any R2P action that civilian casualties are inevitable. There are ways to mitigate this and reduce the potential for dead civilians. Yet, all too often, the interveners do not want to take such actions, at least partly because it may imperil their own troops. This was illustrated all too clearly in Kosovo, where NATO restricted itself to high-altitude bombing of Serb positions, rather than exposing their airplanes to antiaircraft fire or the dangers of putting troops on the ground, which would inevitably have led to NATO casualties. As a result, more civilians were killed than might have been the case otherwise. Humanitarians thus need to keep this in mind when advocating for intervention.

We thus have a very complicated relationship between these three sets of responsibilities and associated practices. The choices made by decision makers and actors on the ground are difficult and complex. While the three responsibilities—protection, prosecution, and palliation—all come from the same broad human rights and humanitarian project, their efficacy and eventual impacts are such that they are not necessarily mutually reinforcing. Rather, they may at times undermine each other—either intentionally or unintentionally.

Furthermore, the question of how best to protect those affected by mass atrocity situations and associated humanitarian crises is difficult to answer. Palliation saves lives; yet, in the most extreme circumstances, it cannot protect individuals from government troops, warlords, paramilitaries, or rebel forces. Prosecution punishes criminals; yet it might also make peace negotiations more difficult. And, in the absence of evidence of a significant deterrent effect, it cannot be claimed to protect people in harm’s way. Robust R2P activities can physically protect people, but it can also endanger them. There is also little appetite on the part of those who could protect to actually do so in most situations. It is thus a very unsure route to protection. All three of these responsibilities have a role to play in assistance and protecting those affected by widespread violent conflict and human rights abuses. The issue, as always, comes down to political will to choose and implement the most appropriate response(s), although this will is in little evidence in too many situations.

Table 1.1. Responsibility Conundrums