Now in Legal Rebels:
Posted Oct 02, 2009 12:50 am CDT
Some international law experts view the doctrine, or R2P, as a logical outgrowth of the regime of international law that was implemented in the years after World War II. In 1948, the fledgling United Nations adopted the Genocide Convention as a “never again” response to the Holocaust. But the convention was limited in its scope and enforcement powers.
“If ‘never again’ is to ever have meaning, then we must acknowledge a responsibility to protect,” says Walter H. White Jr., the incoming chair of the ABA Center for Human Rights. “It is fair to say that human rights—with glaring exceptions—have advanced dramatically in the 60 years since the U.N. adopted the Universal Declaration of Human Rights and the Genocide Convention. The R2P doctrine builds on this constructive legacy by asserting that governments have not only a responsibility to avoid abusing human rights themselves but also to act against abuses committed by other governments.”
But articulating the doctrine is one thing. Now the U.N. and its member states have to figure out how to put it into effect despite the reality that the world community has a pretty poor record of preventing genocide and other mass crimes in the years since World War II.
“The promise of ‘never again’ has never been redeemed, and I don’t see a likelihood that it will be redeemed,” said M. Cherif Bassiouni, who spoke at a program about the R2P doctrine that was presented in early August by the Center for Human Rights during the 2009 ABA Annual Meeting. Bassiouni is president emeritus of the International Human Rights Law Institute at DePaul University College of Law in Chicago.
The record, Bassiouni said, is that more than 300 conflicts since World War II have caused the deaths of between 92 million and 101 million people—roughly double the numbers killed in the two world wars combined, and the vast majority of them civilians. Those numbers were gathered for a study on post-conflict justice that Bassiouni is directing with funding from the European Union. A report is due at the end of this year.
Despite the promises of globalization, said Bassiouni, “we are going through a period where we really don’t want to be our poor brother’s keeper, but that also means we don’t want to share our wealth, resources and technology. Basically, nations are looking to gain power and wealth. It is like medieval times.”
While many share Bassiouni’s skepticism—he calls his view “realistic”—efforts are under way at the U.N. and within the human rights community to move the doctrine forward.
The ABA jumped on the r2p bandwagon at the annual meeting, when the policymaking House of Delegates endorsed the doctrine at the recommendation (PDF) of the Center for Human Rights, the Section of International Law, and the Section of Individual Rights and Responsibilities.
The new ABA policy also supports a set of recommendations for U.S. participation in international efforts to implement the doctrine. Those recommendations are set forth in a report titled Preventing Genocide: A Blueprint for U.S. Policymakers (PDF) that was issued in December by the Genocide Prevention Task Force created by the United States Holocaust Memorial Museum, the American Academy of Diplomacy and the United States Institute of Peace.
Among its recommendations, the report proposes that the president make preventing genocide and mass atrocities a national priority; that the government implement measures to identify risks of genocide and mass atrocities around the world, and develop response strategies to prevent them; that the military develop plans for responding to genocide and mass atrocities; and that initiatives be launched to create networks of governments and nongovernmental organizations that will be dedicated to the prevention of genocide and mass atrocities.
Network-building will be the primary focus of the ABA Center for Human Rights, says White, a partner in the London and Washington, D.C., offices of McGuireWoods.
“To the extent that R2P’s continued development and implementation affect the enforcement of human rights law,” White says, “the ABA should be poised to help address those issues.”
The U.N. General Assembly has started its own discussions about how to implement the doctrine. But cracks are starting to appear as some nations object that the doctrine has the stale whiff of colonialism and would threaten to intrude on national sovereignty.
“It’s much-feared in some regions,” primarily former colonial states that make up much of the world’s southern hemisphere, says David J. Scheffer, a U.S. ambassador-at-large for war crimes issues during the Clinton administration who now directs the Center for International Human Rights at Northwestern University School of Law in Chicago.
But Scheffer emphasizes that the doctrine puts the highest priority on governments preventing genocide and mass atrocities within their own borders. Moreover, he says, there is a further firewall protecting sovereignty because the U.N. Security Council would have to authorize outside military action; although, he notes, “It is said that sovereignty stops at the door of the Security Council.”
As for the United States, the Obama administration has been sending mixed signals on the issue, according to annual meeting panelist Lawrence Woocher. Some communications from the administration have been encouraging, “but we haven’t seen the kind of clear statement from President Obama that we had hoped for,” said Woocher, a senior program officer at the United States Institute of Peace in Washington, D.C.
While the first steps for the R2P doctrine have been significant, Scheffer and other experts say it still is a long way from becoming an effective vehicle of law and policy.
“I find it a compelling concept,” says Ruti G. Teitel, a professor at New York Law School. “The problem is, it’s a fundamental challenge to the institutional security framework” that was put in place after the end of World War II. Implementing the doctrine would require a new international legal framework that might not adhere to current notions of state sovereignty, she suggests.
“We’re still in the exceptionally early stage of this principle. It goes way beyond the law,” Scheffer explains. “It’s a political challenge for governments, first and foremost, a military challenge and a diplomatic challenge.”