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2016 | OriginalPaper | Buchkapitel

6. The Way Forward

verfasst von : Pınar Gözen Ercan

Erschienen in: Debating the Future of the ‘Responsibility to Protect’

Verlag: Palgrave Macmillan UK

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Abstract

As explained in Chap. 1, this book is neither a mere attempt to make a case for the utility of the responsibility to protect nor a sheer criticism of it. Instead, based on an analysis of R2P’s evolution so far, it attempts to draw an alternative path for the future of the norm with the aim to make it a functioning part of the international system. Though it is important to question the progress achieved on the R2P front since the norm’s instigation, an enquiry into the future of R2P would be far from complete without an assessment of the norm’s limitations and an examination of proposals on how to overcome them. The primary goal of this chapter is to take up such task with a twofold analysis.

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Vorheriges Kapitel Upholding the Responsibility?

Nächstes Kapitel Conclusion: One’s Reality, Another’s Illusion

‘Amendments to Articles 23, 27 and 61 of the Charter were adopted by the General Assembly on 17 December 1963 and came into force on 31 August 1965. A further amendment to Article 61 was adopted by the General Assembly on 20 December 1971, and came into force on 24 September 1973. An amendment to Article 109, adopted by the General Assembly on 20 December 1965, came into force on 12 June 1968. The amendment to Article 23 enlarges the membership of the Security Council from eleven to fifteen. The amended Article 27 provides that decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members (formerly seven) and on all other matters by an affirmative vote of nine members (formerly seven), including the concurring votes of the five permanent members of the Security Council. The amendment to Article 61, which entered into force on 31 August 1965, enlarged the membership of the Economic and Social Council from eighteen to twenty-seven. The subsequent amendment to that Article, which entered into force on 24 September 1973, further increased the membership of the Council from twenty-seven to fifty-four. The amendment to Article 109, which relates to the first paragraph of that Article, provides that a General Conference of Member States for the purpose of reviewing the Charter may be held at a date and place to be fixed by a two-thirds vote of the members of the General Assembly and by a vote of any nine members (formerly seven) of the Security Council. Paragraph 3 of Article 109, which deals with the consideration of a possible review conference during the tenth regular session of the General Assembly, has been retained in its original form in its reference to a “vote, of any seven members of the Security Council”, the paragraph having been acted upon in 1955 by the General Assembly, at its tenth regular session, and by the Security Council’ (UN, Introductory Note).

For a summarised overview of individual states’ and regional groups’ perception of R2P on the basis of the statements presented during the 2009 plenary meetings following Secretary-General’s report on the implementation of R2P, see the Appendix.

Some examples from the mounting literature discussing the creation of a standing UN army are: Roff, H. (2013) Global Justice, Kant and the Responsibility to Protect: A Provisional Duty (Oxon: Routledge, 2013); Hehir, A. (2012) The Responsibility to Protect : Rhetoric, Reality and the Future of Humanitarian Intervention (London: Palgrave Macmillan); Pattison, James. (2008) ‘Humanitarian Intervention and a Cosmopolitan UN Force’, Journal of International Political Theory, 4/1, pp. 126–145; Caney, S. (2005) Justice Beyond Borders (Oxford: Oxford University Press); Woodhouse, T. and Ramsbotham, O. (2005) ‘Cosmopolitan Peacekeeping and the Globalisation of Security’, International Peacekeeping, 12/2, pp. 139–156. Kinloch-Pichat, S. (2004) A UN ‘Legion’: Between Utopia and Reality (London: Frank Cass);

Held, D. (1998) ‘Democracy and Globalization’ in Archibugi, D., Held, D., and Köhler, M. (eds.) Re-imagining Political Community: Studies in Cosmopolitan Democracy (Cambridge: Polity Press); Kaysen C., and Rathjens, G. (1996) Peace Operations by the United Nations: The Case for a Volunteer UN Military Force (Cambridge: American Academy of Arts and Sciences); Conetta, C. and Knight C. (1995) Vital Force: A Proposal for the Overhaul of the UN Peace Operations System and for the Creation of a UN Legion (Cambridge: Commonwealth Institute); Hillen, J. (1994) ‘Policing the New World Order: The Operational Utility of a Permanent UN Army’, Strategic Review, 22/2, pp. 54–62. Urquhart, B. (1993) ‘For a UN Volunteer Military Force’, New York Review of Books (10 June).

Under Article 36 of the Statute of the ICJ, which reads as follows, although the Court may have jurisdiction over any matter, it lacks automatic jurisdiction over cases as the consent of the parties is required:

‘1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.

2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

the interpretation of a treaty;

any question of international law;

the existence of any fact which, if established, would constitute a breach of an international obligation;

the nature or extent of the reparation to be made for the breach of an international obligation.

3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time […].

4. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court’ (emphasis added, ICJ 1945).

While the ICC proceedings may help to stop atrocities, in certain cases, there arises the possibility that such process may reduce the chances for a political solution. As Schiff (2011, pp. 10–11) remarks: ‘All other things being equal, and given limited resources, pursuit of cases in a situation in which prosecution would be more likely to stop ongoing criminality should have priority over a purely retrospective prosecution. Critics charge, however, that the reverse is also possible—that a prosecution might increase the likelihood of continued crimes. This argument has been pressed by critics of the Prosecutor’s indictment of Sudanese President Omar Al-Bashir (for genocide, war crimes and crimes against humanity) who claim that the indictments diminished chances for a political solution to the Darfur situation and damaged humanitarian services in Darfur due to President Al-Bashir’s expulsion of non-governmental humanitarian organizations. Similarly, the ICC has been accused of reducing chances for peace in northern Uganda by indicting Lord’s Resistance Army leaders who otherwise might have proven amenable to deals offered in negotiations with the government.’

For instance, in contravention to its obligations arising from the Rome Statute as a full State Member, Chad disregarded the arrest warrant against Sudan’s President Omar Al-Bashir and allowed him to travel to and from Chad in 2010 instead of arresting him as he set foot on the territory of Chad (BBC 2010a).

Regarding issues of admissibility, Article 17 of the Rome Statute reads as follows:

‘1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

(a)

The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b)

The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c)

The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d)

The case is not of sufficient gravity to justify further action by the Court.

2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:

(a)

The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;

(b)

There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

(c)

The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings’ (ICC 1998, pp. 12–13).

Acharya, A. (2013). The R2P and norm diffusion: Towards a framework of norm circulation. Global Responsibility to Protect, 5, 466–479.CrossRef

Archibugi, D. (1993). The reform of the UN and cosmopolitan democracy: A critical review. Journal of Peace Research, 30(3), 301–315.CrossRef

Ayoob, M. (2010). Making sense of global tensions: Dominant and subaltern conceptions of order and justice in the ınternational system. International Studies, 47(2–4), 129–141.CrossRef

Barnett, M. (2003). Eyewitness to a genocide: The United Nations and Rwanda. Ithaca, NY: Cornell University Press.

BBC. (2010a). Sudan’s President Bashir defies arrest warrant in Chad. Retrieved May 26, 2015, from http://www.bbc.com/news/world-africa-10718399.

Bloomfield, A. (2016). Resisting the responsibility to protect. In A. Bloomfield & S. V. Scott (Eds.), Norm antipreneurs and the politics of resistance to global normative change. Oxon, England: Routledge.

Brownlie, I. (1974). Humanitarian intervention. In J. N. Moore (Ed.), Law and civil war in the modern world. Baltimore: The Johns Hopkins University Press.

Buchanan, A., & Keohane, R. (2011). Precommitment regimes for intervention: Supplementing the security council. Ethics and International Affairs, 25(1 Spring), 41–63.CrossRef

Caney, S. (2005). Justice beyond borders. Oxford, England: Oxford University Press.CrossRef

Chesterman, S. (2001). Just war or just peace: Humanitarian ıntervention and ınternational law. Oxford, England: Oxford University Press.

Chomsky, N. (2011). The skeleton in the closet: The responsibility to protect in history. In P. Cunliffe (Ed.), Critical perspectives on the responsibility to protect: Interrogating theory and practice. Oxon, England: Routledge.

Claes, J. (2012). Protecting civilians from mass atrocities: Meeting the challenge of R2P rejectionism. Global Responsibility to Protect, 4(1), 67–97.CrossRef

Cohen, J. (2008a). A global state of emergency or the further constitutionalization of ınternational law: A pluralist approach. Constellations, 15(4), 456–484.CrossRef

Cohen, R. (2008b, August 27). How Annan rescued Kenya from genocide. The Observer. Retrieved June 19, 2010, from http://www.observer.ug/index.php?option=com_content&view=article&catid=34:news&id=918:how-annan-rescued-kenya-from-genocide&Itemid=59.

Conetta, C., & Knight, C. (1995). Vital force: A proposal for the overhaul of the UN peace operations system and the creation of a UN legion. Cambridge, MA: Commonwealth Institute.

Cotler, I., & Genser, J. (2013, August 30). Our response to Syria must be effective, but also legal. The Huffington Post. Retrieved August 01, 2015, from http://www.huffingtonpost.ca/irwin-cotler/syria-crisis_b_3845195.html.

Danish Institute of International Affairs (DIIA). (1999). Humanitarian ıntervention: Legal and political aspects. Copenhagen, Denmark: Danish Institute of International Affairs.

Erskine, T. (2014). Coalitions of the willing and responsibilities to protect: Informal associations, enhanced capacities, and shared moral burdens. Ethics & International Affairs, 28(1), 115–145.CrossRef

Evans, G. (2012a, July 20). The responsibility to protect after Libya and Syria. Annual Castan Centre for Human Rights Law Conference, Melbourne, Australia. Retrieved October11, 2014, from http://www.gevans.org/speeches/speech476.html.

Evans, G. (2012b, August 23). ‘R2P and RwP After Libya and Syria’, Keynote address by professor the Hon Gareth Evans, co-chair, Global Centre for the Responsibility to Protect, to GCR2P/FGV/Stanley Foundation workshop, responsibility while protecting: What’s next? Rio de Janeiro, Brazil. Retrieved June 20, 2015, from http://gevans.org/speeches/speech485.html.

Fassbender, B. (2004). Pressure for security council reform. In D. M. Malone (Ed.), The UN security council: From the cold war to the 21st century. Boulder, CO: Lynne Rienner.

Gaddis, J. L. (2005). The cold war: A new history. New York: The Penguin Press.

Hehir, A. (2012). The responsibility to protect: Rhetoric, reality and the future of humanitarian intervention. London: Palgrave Macmillan.

Hehir, A., & Murray, R. (2013). Libya: The responsibility to protect and the future of humanitarian intervention. Basingstoke, England: Palgrave Macmillan.CrossRef

Held, D. (1998). Democracy and globalization. In D. Archibugi, D. Held, & M. Köhler (Eds.), Re-imagining political community: Studies in cosmopolitan democracy. Cambridge, England: Polity Press.

Hillen, J. (1994). Policing the new world order: The operational utility of a permanent UN army. Strategic Review, 22(2), 54–62.

Hooper, S. (2009). Annan: World faces “crisis of governance”. CNN. Retrieved June 2, 2015, from http://edition.cnn.com/2009/BUSINESS/01/28/davos.wef.annan/index.html?eref=rss_.

International Commission on Intervention and State Sovereignty (ICISS). (2001a). The responsibility to protect: The report of the International Commission on Intervention and State Sovereignty. Ottawa, Canada: International Development Research Center.

International Cooperation for the Responsibility to Protect (ICRtoP). (2012, January 24). Practitioners and academics assess RtoP from 2001–2022 at R2P: The next decade. Retrieved August 16, 2015, from http://icrtopblog.org/category/event/.

International Court of Justice (ICJ). (1945). Statute of the International Court of Justice. Retrieved July 17, 2014, from http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0.

International Criminal Court (ICC). (1998). Rome statute of the ınternational criminal court. Retrieved February 12, 2015, from http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf.

Issaka, M. (2008, November 06). Interview between author and Mashood Issaka, Senior Policy Analyst at International Peace Institute, Africa Program. New York.

Kaysen, C., & Rathjens, G. (1996). Peace operations by the United Nations: The case for a volunteer UN military force. Cambridge, MA: American Academy of Arts and Sciences.

Kinloch-Pichat, S. (2004). A UN “legion”: Between Utopia and reality. London: Frank Cass.CrossRef

Krisch, N. (2008). The security council and the great powers. In V. Lowe, A. Roberts, J. Welsh, & D. Zaum (Eds.), The United Nations Security Council and War. Oxford, England: Oxford University Press.

Mallavarapu, S. (2015). Colonialism and the responsibility to protect. In R. Thakur & W. Maley (Eds.), Theorising the responsibility to protect. Cambridge, MA: Cambridge University Press.

McDougall, D. (2014). Responsibility while protecting: Brazil’s proposal for modifying responsibility to protect. Global Responsibility to Protect, 6, 64–87.CrossRef

Mills, K. (2013). R2P³: Protecting, prosecuting, or palliating in mass atrocity situations. Journal of Human Rights, 12(3), 333–356.CrossRef

Morgenthau, H. (1949). Politics among nations: The struggle for power and peace. New York: Knopf.

Okumu, W. (2008, November 03). Phone interview between author and Dr. Wafula Okumu, Executive Director of the Borders Institute, Kenya.

Pattison, J. (2008). Humanitarian intervention and a cosmopolitan UN force. Journal of International Political Theory, 4(1), 126–145.CrossRef

Quinton-Brown, P. (2013). Mapping dissent: The responsibility to protect and ıts state critics. Global Responsibility to Protect, 5(3), 260–282.CrossRef

Ramsbotham, O., & Woodhouse, T. (1996a). Humanitarian intervention in contemporary conflict: A reconceptualization. Oxford, England: Polity Press.

Ramsbotham, O., & Woodhouse, T. (1996b). Forcible self-help. In O. Ramsbotham & T. Woodhouse (Eds.), Humanitarian intervention in contemporary conflict: A reconceptualization. Cambridge, England: Polity Press.

Roff, H. (2013). Global justice, kant and the responsibility to protect: A provisional duty. Oxon, England: Routledge.

Sahnoun, M. (2009, July 21). Africa: Uphold continent’s contribution to human rights, urges top diplomat. allAfrica. Retrieved October 27, 2014, from http://allafrica.com/stories/200907210549.html.

Schiff, B. (2011, March 16). The ICC and R2P: Problems of individual culpability and state responsibility. 2011 Montreal International Studies Association Annual Meeting, Montreal, Canada.

Schrijver, N. (2007). The UN human rights council: A new “society of the committed” or just old wine in new bottles? Leiden Journal of International Law, 20, 809–823.CrossRef

Stuenkel, O., & Tourinho, M. (2014). Regulating intervention: Brazil and the responsibility to protect. Conflict, Security, & Development, 14(4), 379–402.CrossRef

Teitel, R. G. (2011). Humanity’s law. New York: Oxford University Press.CrossRef

Thakur, R. (2012). Emerging powers and the responsibility to protect after Libya. NUPI Policy Briefs, 15, 1–4.

Thakur, R., & Weiss, T. G. (2009). R2P: From idea to norm—and action? Global Responsibility to Protect, 1(1), 22–53.CrossRef

United Nations (UN). (2006, November 09). Delivering as one: Report of the secretary-general’s high-level panel. Retrieved July 01, 2015, from http://www.un.org/events/panel/resources/pdfs/HLP-SWC-FinalReport.pdf.

United Nations Development Group (UNDG). (2014). Rights up front. Retrieved July 11, 2015, from https://undg.org/wp-content/uploads/2014/09/Rights-up-Front-May-2014.pdf.

United Nations General Assembly (UNGA). (1950, November 03). Uniting for peace. Resolution adopted by the general assembly, A/Res/377 A (V).

United Nations General Assembly (UNGA). (2005a, March 21). Fifty-ninth session, in larger freedom: Towards development, security and human rights for all. Report of the Secretary-General, A/59/2005.

United Nations General Assembly (UNGA). (2005b, October 24). Resolution adopted by the general assembly on 16 September 2005, ‘60/1. 2005 World Summit Outcome’, A/Res/60/1.

United Nations General Assembly (UNGA). (2009a, January 12). Implementing the responsibility to protect. Report of the Secretary-General, A/63/677.

United Nations General Assembly (UNGA). (2009c, July 23). Sixty-third session, 97th plenary meeting, A/63/PV.97.

United Nations General Assembly (UNGA). (2009d, July 24). Sixty-third session, 98th plenary meeting, A/63/PV.98.

United Nations General Assembly (UNGA). (2009f, July 28). Sixty-third session, 100th plenary meeting, A/63/PV.100.

United Nations General Assembly–Security Council (UNGA–SC). (2011b, November 11). Letter dated 9 November 2011 from the permanent representative of Brazil to the United Nations addressed to the Secretary-General, A/66/551–S/2011/701.

United Nations General Assembly–Security Council (UNGA–SC). (2012, July 25). Responsibility to protect: Timely and decisive response. Report of the Secretary-General, A/66/874–S/2012/578.

United Nations General Assembly–Security Council (UNGA–SC). (2013, July 9). Responsibility to protect: State responsibility and prevention. Report of the Secretary-General, A/67/929–S/2013/399.

United Nations General Assembly–Security Council (UNGA–SC). (2015, July 13). A vital and enduring commitment: Implementing the responsibility to protect. Report of the Secretary-General, A/69/981–S/2015/500.

United Nations Meetings Coverage and Press Releases (UNMCPR). (2004, March 26). Rwanda genocide ‘Must Leave Us Always with a Sense of Bitter Regret and Abiding Sorrow’, says Secretary-General to New York Memorial Conference. Retrieved June 29, 2015, from http://www.un.org/press/en/2004/sgsm9223.doc.htm.

United Nations Meetings Coverage and Press Releases (UNMCPR). (2012, February 04). Security council fails to adopt draft resolution on Syria as Russian Federation, China Veto text supporting Arab league’s proposed peace plan. Retrieved July 01, 2015, from http://www.un.org/press/en/2012/sc10536.doc.htm.

United Nations Meetings Coverage and Press Releases (UNMCPR). (2013). General assembly adopts text condemning violence in Syria, demanding that all sides end hostilities. Retrieved August 23, 2014, from http://www.un.org/press/en/2013/ga11372.doc.htm.

United Nations Secretary-General (UNSG). (2000, June 01). Secretary-General’s appearance in CNN’S one-hour news programme entitled “Global Forum”, Atlanta, Georgia, 1 June 2000 (unofficial transcript). The Secretary-General off the Cuff. Retrieved June 11, 2015, from http://www.un.org/sg/cuffarch/sgcu0500.shtml.

United Nations Security Council (UNSC). (1992a, March 31). Resolution 748 adopted by the security council at its 3063rd meeting, S/RES/748.

United Nations Security Council (UNSC). (1992b, December 03). Resolution 794 adopted by the security council at its 3145th meeting, S/RES/794.

United Nations Security Council (UNSC). (1994a, June 22). Resolution 929 adopted by the security council at its 3392nd meeting, S/RES/929.

United Nations Security Council (UNSC). (1994b, July 31). Resolution 940 adopted by the security council at its 3413th meeting, S/RES/940.

United Nations Security Council (UNSC). (1999, December 16). Letter dated 15 December 1999 from the secretary-general addressed to the president of the security council, S/1999/1257.

United Nations Security Council (UNSC). (2011b, March 30). Resolution 1975, ‘Adopted by the Security Council at its 6508th meeting’, S/RES/1975.

Urquhart, B. (1993). For a UN volunteer military force. New York Review of Books, 40(11), 3–4.

Weiss, T. G. (2013). What’s wrong with the United Nations and how to fix it (2nd ed.). Cambridge, England: Polity Press.

Welsh, J. (2013). Norm contestation and the responsibility to protect. Global Responsibility to Protect, 5, 365–396.CrossRef

Wheeler, N. J. (2002). Saving strangers: Humanitarian intervention in international society. Oxford, England: Oxford University Press.CrossRef

Woodhouse, T., & Ramsbotham, O. (2005). Cosmopolitan peacekeeping and the globalisation of security. International Peacekeeping, 12(2), 139–156.CrossRef

Titel: The Way Forward
verfasst von: Pınar Gözen Ercan
Verlag: Palgrave Macmillan UK
Buch: Debating the Future of the ‘Responsibility to Protect’
Print ISBN: 978-1-137-52426-3

Electronic ISBN: 978-1-137-52427-0

Copyright-Jahr: 2016
DOI: https://doi.org/10.1057/978-1-137-52427-0_6