Lecture 13: The International Criminal Court and the Responsibility to Protect

– We’re gonna continue with
the part two of the course on the new or emerging global order after the end of the Cold War. We’ve spent two lectures on democracy, and particularly the enormous promise that democracy seemed to offer, which was sort of, for which the South African transition was something of a poster child in 1994. This was before the mixed legacy of the South African transition, and particularly the failure to achieve much full transformation in the economy that would play itself out in later years. In 1994, it was really
seen as the poster child for this democracy that
was sweeping the world, including in places where
it had not been anticipated. Today, we’re gonna be talking about the International Criminal Court and the Responsibility to Protect, two doctrines that began
a fundamental reshaping of the international legal
and political orders. So that’s going to really consume us for the next several weeks, next several lectures, I should say. Anyone know what this is a picture of? Who are these people? – [Man] Rwanda. – It’s Rwanda, yeah, who are these people? – [Man] Tutsi, Hutu? – Hutu. What are they doing? – [Man] Committing genocide. – How do you know? What are they doing? – [Man] There are people with sticks. – They’re going along with sticks. And who are these people? – [Man] Peacekeepers. – [Ian] Yeah, these are UN peacekeepers. What are they doing? – Nothing.
– Nothing. (audience laughs) They’re watching. This is a famous photograph
that appeared in The Guardian on the 12th of April, 1994, and did the 1994
equivalent of going viral. Of course the rules of engagement
for UN peacekeeping troops was that they could not become involved in ongoing conflicts, and so, in effect, they
were not in a position to do anything about it. And so this is, you could call a subtitle
for today’s lecture, “Rwanda’s Shadow,” because this was a horrific genocide in the course of which,
in about three months, somewhere between 800,000
and a million Tutsi, mostly Tutsi, some moderate
Hutu, and some other groups, were slaughtered in the most graphic, much of it appeared
in the Western media. You could go up and if you
tried to look on YouTube you’ll have to sign in confirming your age because a lot of it is so gruesome. So the thought was that the international community
had to be able to respond. After World War II we heard these praises like “Never again.” This was a clear case of genocide and if the international community couldn’t do things to stop it, it was likely to proliferate, genocides were likely to proliferate. This what I had taught you earlier about the sort of frozen-in-place
international structure. The Cold War was gone and it was not clear that the major powers would
police their surrogates in ways that would prevent
this kind of violence. It’s really quite a dramatic counterpart when you think that the very same month, 2,300 miles to the south, the South Africans were having their first democratic election, three days of peaceful voting, again, all this euphoria, while at the same time this
carnage was going on in Rwanda. Let’s listen to President
Clinton on this 22nd of July just after it was more or less over. – Good morning. I have just met with my
national security team. The flow of refugees
across Rwanda’s borders has now created what could be the world’s worst humanitarian
crisis in a generation. It is a disaster born of brutal violence, and according to experts now on site, it is now claiming one life every minute. Today I am announcing an immediate and massive increase in our response. We will provide personnel and equipment to enable these airfields to
operate on a 24-hour basis. Our aims is to move food,
medicine, and other supplies to those in need as quickly as possible. I’ve directed the Pentagon to
establish a safe water supply and to distribute as
much water as possible to those at risk. Safe water is essential to
stop the outbreak of cholera and other diseases that
threaten the refugees. I’ve ordered the State Department and our ambassador to the United Nations, who is here with us today, to take immediate action to
help create those conditions. The United States will support and urge the immediate deployment
of a full contingent of United Nations peacekeepers to Rwanda, to provide security for
the return of the refugees. We are making clear to
the new leaders of Rwanda that international acceptance, including American recognition, depends upon the establishment
of a broad-based government, the rule of law, and efforts
at national reconciliation. We’re taking action to
counteract the propaganda of the extremist Hutu elements, who continue to urge Rwandans to flee. Taken together, these steps will help to relieve the suffering
of the Rwandan refugees and create conditions
for their return home. – So, President Clinton
was heavily criticized after that speech, and the reason he was heavily criticized was not for what he said
but for what he didn’t say and, indeed, for what the administration had systematically been refusing to say throughout the build up
and then the unfolding of the Rwandan crisis. That was the word genocide. It refused to say genocide. And you can now find in
the archival documents there was a lot of back and
forth within the administration, huge resistance to
using the word genocide, on the grounds that that would dictate that we would have to go and do something. And President Clinton
was extremely reluctant to do anything to get American troops involved in this conflict because he had had his nose badly bloodied six months earlier in Somalia in the so-called Battle of Mogadishu. And so the US was, this had started under the Bush Senior administration, the US had been the leading player in the UN’s peacekeeping
operation in Somalia, called the UN Operation in Somalia. And it was an ongoing civil war. And as part of that effort in what was widely seen as
badly-botched American operation, two Black Hawk helicopters
had been shot down and the so-called Battle
of Mogadishu proceeded, in which 18 Americans were
eventually killed and 73 wounded. And from the point of view
of the administration, what was especially damaging
was three dead Americans were dragged, dead or dying Americans, were dragged through
the streets of Mogadishu and filmed being so dragged. And this was, again, a 1990s
version of going viral. It was seen as a huge incompetence on the part of the
American administration. Probably the most damaging
thing for Clinton, at least the most damaging
thing for an American president, at least since Jimmy
Carter’s botched operation to free the hostages in Tehran in 1979, where we also had helicopters
coming down in the desert. That in fact, the 18 Americans killed in the Battle of Mogadishu was the largest number of US fatalities since the Vietnam War. So it was seen as a really big deal, that would eventually be surpassed in the Second Battle of Fallujah that I talked to you about some time ago, where some multiple of that was killed. I think about 95 American soldiers were killed in that battle. But at the time this was
seen as a horrific mess that the US had gotten into, and the Clinton
administration had responded by deciding to get out
of Somalia, rapidly. And so they pushed the UN essentially to declare the end of
the Somalia Operation the following year, and they were in the midst
of withdrawing from that. So the last thing the Clinton
administration wanted to do was get American troops
involved in another civil war where they could have taken a massive domestic political hit. And so it’s not surprising,
even if it’s not impressive, that President Clinton refused and the administration refused to call what was going on in Rwanda genocide and refused to get involved
until the conflict was, for all practical purposes, over. So, today’s agenda is we’re
gonna look at nonintervention, this idea that has to be broached if we’re gonna start talking about protection of international human rights in a post Cold War world. We’ll dig into what the ICC and the doctrine of
Responsibility to Protect are, how they came to be adopted, and what force they have in the world. We’ll also question how
radical a reshaping this is of the international
political and legal order. And they’re both very much doctrines in evolution and in flux, so to some extent we’re
looking at moving targets. But we will do the best that we can. And as we go through it, I want us to pay particular
attention to our three I words, to the role ideas and ideals, on the one hand, of institutions. We’re talking about changing institutions. Secondly and thirdly,
the role of interests and how they play out as
these ideas and institutions come under pressure to be reshaped. And the place you have to
start if you’re thinking about the international
protection of human rights is the strong presumption
against intervention in another country by external players. This hasn’t always been that. In fact, if you read my colleague Oona Hathaway and Scott
Shapiro’s book in the Law School, they will tell you, and
they are right about this, that the idea that national sovereignty is
completely invaluable doesn’t become fully
entrenched in international law until the UN Charter is
adopted after World War II. And the UN Charter was
centrally about preventing the invasion of one country by another and preserving in that sense
the nation state status quo in the world after World War II. And so the idea, the norm,
that no nation can intervene in the activities of any other nation becomes enshrined in the UN Charter and almost as it’s part
of its raison d’etre. Because what we need to remember
when we talk about the UN, talked about this briefly at
the beginning of the course, but the purpose of the UN was
not to be a world government. The purpose of the UN, first and foremost, was to prevent another war
between the major powers. This is why it was
structured in the way it was and this is why the Security Council, which is the closest thing to
the executive body of the UN, is structured the way it was, with the five victorious dominant powers at the end of World War II having a veto over anything that the
Security Council did, and the notion was that it
would be better to force them to cooperate by having to agree before any international
action could be taken. And when international action was taken, the default presumption
was, the term of art was to restore international
peace and security. And the idea of restoring
international peace and security was to stop wars, to stop invasions, to stop anybody from trying
grab real estate in the world. Of course, it came to
take on many other roles, but that was the initial
purpose of the UN, it’s why it was structured the way it was, and we should also remember
that it was basically a creature of a treaty,
a multilateral treaty. In this sense, its basic structure is like the basic structure of the EU. Even though we saw with the EU there were efforts around
the time of Maastricht to make the European Union, the Parliament elected by the
citizens of Europe, sovereign. That didn’t work, and by the time we got
to the Lisbon Treaty, the Lisbon route, there
was basically modification of this treaty-based structure. So the UN is based on a treaty, and that of course means,
if you wanna change it, you’d have to negotiate a new treaty, at least in principle. And the treaty created the structure whose initial raison
d’etre was to prevent war and certainly to prevent war
between the major powers. So, a big part of the question, given that the UN is the sort of presumptive international institution in the world today, is, can the structure of the UN be changed? And if so, how? And what’s interesting about the ICC, and particularly with the doctrine of Responsibility to Protect, is we might characterize them
as sort of common law efforts, or quasi common law efforts to change the basic structure of the UN, to make it operate as more of an authorizer for intervention, much more radical intervention
in the case of R2P than in the ICC. But nonetheless, to make it possible for this idea that nobody intervenes in the activities of any country, to start to be questioned. So, let’s talk about the ICC first. If you think about the idea
of holding war criminals to account for their crimes, previously, there had been talk going back all the way to 1919 of the idea that there should be some kind of international criminal court. It came up again at the
end of World War II. But if you look at what was actually done, we had previous tribunals
were all ad hoc tribunals. So we had the International
Military Tribunal, commonly known as the Nuremberg Trials after World War II. The International Military
Tribunal for the Far East, less well known, but the Tokyo Trials for Japanese war criminals. We had the Eichmann Trial
in 1961, I believe it was, in Jerusalem, where Israel
captured Adolf Eichmann in Argentine and brought him
and tried him and executed him in Jerusalem. And then we had in 1993 the International Criminal Tribunal for the Former Yugoslavia. Again, an ad hoc, this time created by the UN for the first time, tribunal to try war criminals
from the Yugoslav conflict. And the the International
Criminal Tribunal for Rwanda that was created after
the Rwandan genocide to try criminals for the Rwandan during the Rwandan genocide. So they were ad hoc, the
last two, you see UN action. Before that it’s
essentially victor’s justice that was often criticized as being, and certainly by people
on the other end of it, when the winning powers in conflicts held trials of people
from the defeated side. So there was no international body that could engage in
these kinds of trials. The International Criminal Court was initiated by the Rome Treaty, which was signed by 120
countries in July of 1998 and finally ratified
by 60 of them in 2002. And it has a strange
relationship toward the UN. Because the structure of the UN was such, as I said to you, they
couldn’t create a court without going back to the
signatories of the treaty. But they had a strong
interest, they thought, or many people at the
UN had a strong interest in trying to create some sort of permanent international legal tribunal. And so they commissioned
a group of lawyers, called the International Legal Council, International Legal Committee, I can’t remember the exact title, but these are experts in international law appointed by the UN General Assembly. And they asked them to draft a statute that could become the basis for an international criminal court, and they did indeed do that. The UN General Assembly
sponsored multiple debates of this statute and
eventually a conference, which led to the Rome Treaty. And the UN General Assembly
was by no means alone. A variety of NGOs were
involved in this as well, NGOs pushing for the creation of norms that would change international law so that perpetrators of war
crimes could be held to account. It came into operation in July of 2002, when 60 states had signed it. And today there are 129
states are now signatories of the multilateral treaty
that creates the ICC. So it’s independent of
the UN, technically, and it’s a separate treaty that is the foundation document, the statute that creates this institution. It can prosecute, originally
it was war crimes, crimes against humanity and genocide, and crime of aggression was added in 2010. It has pretty broad jurisdiction in that it can prosecute crimes that occur in any of
the signatory countries or crimes that are perpetrated by citizens of any of
the signatory countries. Generally speaking, crimes
are referred for prosecution by the countries themselves, perhaps after a transition, for example, when there’s limited ability of the
existing legal order to go after people, perhaps ’cause they are not there anymore, or perhaps ’cause the
country is in a civil war, it doesn’t have developed
judicial capacities. This is not the only way that they get crimes referred to them, but it has 18 judges who are elected by something called the
Assembly of State Parties, which are the signatories to the treaty. And they’ll sit in three
different chambers, groups of three judges, one does pre-trial hearings,
one does the trials, and one does the appellate work. I’d say it’s a parallel but
sort of independent institution in that actually the UN Security Council has begun to refer cases to the ICC. This happened after Darfur when the Security Council
referred some cases they had. And once a case is referred, there’s a prosecutor for the ICC who does a preliminary investigation to see whether charges should be brought. And then in 2011, in the Darfur referral, the US and China abstained, and this was partly
because the US and China are not signatories to the ICC, for reasons I’ll get to in a minute. But in 2011 the Security Council unanimously referred Gaddafi
for prosecution by the ICC. And as Mark Mazower comments in the chapter that I
had you read for today, this is part of what has
provoked a lot of commentary about the hypocritical
attitude of the US toward the ICC because on the one hand
we have not signed the treaty and we refuse to be subject
to its jurisdiction, and indeed, in peacekeeping operations, if the Security Council authorizes
peacekeeping operations, the Americans require that their soldiers cannot be subject to the
jurisdiction of the ICC as conditions for participating
in peacekeeping operations. So it’s not a legal system
to which the US will submit. On the other hand, here
they’re participating in referring others to
the Security Council, most dramatically Gaddafi in 2011. So, how important is this institution? As of 2019, it had handed
down 44 indictments, it had issued 36 arrest warrants, it had 23 ongoing proceedings, there were 15 fugitives at large who had had arrest warrants out for them, 21 proceedings had been completed. So this is from 2002 to 2019, so in 17 years six people
have been convicted, four had served prison
terms and been released, two were still serving them. The rest had been acquitted,
charges had been dismissed, charges had been withdrawn
or otherwise fallen apart, and four people had died before trial. So, tiny numbers, tiny
numbers you might say. How should we then think
about it and its legitimacy? Well… One thing to say about it is
that it’s long been criticized, particularly in the Global South, as heavily biased against
African countries. All the convictions to date have been of people in African countries, and virtually all the prosecutions. Not every Wikipedia page is good but there’s a very good Wikipedia page that gives a running account of all the prosecutions currently ongoing, and it stays up to date. And the sense that it
was anti-African became a source of a lot of criticism of it, and indeed, even today, although prosecutions have been opened, one in Myanmar and one in Georgia, but the vast majority of
them are African countries. And in 2016, Burundi, South
Africa, and Gambia all said that they were going to leave. There was then an election in Gambia that reversed that decision after a new government came to power. In South Africa, interestingly enough, it was the Zuma government
that said they were leaving, but the South African Constitutional Court ruled that it would be
illegal for South Africa, it’d be unconstitutional
for South Africa to leave, so they rescinded their decision to leave. But the Philippines, after
Duterte’s anti-drug efforts, where he keep a very violent
anti-drug campaign there, were referrals to the ICC for prosecutions in the Philippines, the government announced
that they were leaving, and they left, it takes a year to leave, and incidentally does
not immunize a country from prosection during the period when they were members of the ICC. So it doesn’t mean that, in principle, the crimes committed in the Philippines couldn’t still be adjudicated. Israel, Sudan, the US, and Russia have all withdrawn their
signatures from the treaty. And the US role over time
bears some attention, given that we’re now in a unipolar world and the American role is so important. So, the last possible day
you could sign the treaty creating the ICC was the
last day of the century and the last day of the Clinton, not quite the last day of
the Clinton administration, it ended the following January. And the Clinton administration signed it but you can see from what
President Clinton said, he said, “We reaffirm our strong support “for international accountability “and for bringing to justice
perpetrators of genocide, “war crimes, and crimes against humanity. “We do so as well because
we wish to remain engaged “in making the ICC an
instrument of impartial “and effective justice in years to come.” So they were signaling they didn’t like it but they were gonna remain engaged and essentially punt this question to the next administration. They’re gonna punt the question to the incoming Bush administration, but they didn’t wanna
forestall the possibility of the US being involved. The Bush administration came into office, as we all now know. A year shortly after we had 9/11. The Bush administration before that had taken no action to move forward with American involvement in the ICC. After 9/11, in 2002, the Bush administration
withdrew America’s signature, so that was the end of that as
far as the ICC was concerned. When the Obama administration
came in in 2009, they took a somewhat softer
attitude toward the ICC and began to engage with
it and cooperate with it in various investigations and have observer status
at meetings about it and of some of its organ bodies. But even the Obama
administration showed no interest in actually having the US signed, partly for the same reason
that I’d already mentioned, which was the idea that the US involvement in peacekeeping operations
would lead Americans to be vulnerable to prosection was not something that
the administration thought it could sell to American voters. Of course, since then we’ve
had the Trump administration, and as you might surmise, that hasn’t produced any change either. – The United States will provide
no support in recognition to the International Criminal Court. As far as America is concerned,
the ICC has no jurisdiction, no legitimacy, and no authority. The ICC claims near-universal jurisdiction over the citizens of every country, violating all principles of justice, fairness, and due process. We will never surrender
America’s sovereignty to an unelected, unaccountable,
global bureaucracy. – So, there you have an
unsurprising summation of the American attitude and reaffirmation of the idea that international law applied to American citizens
is not gonna be acceptable. So, how should we think about whether the ICC is a good or bad thing? Any, any… Any thoughts about that? Anyone thinks it’s a good thing? Good thing, somebody who
thinks it’s a good thing, yeah. – [Man] A metric could
be the number of people who are killed in interstate conflict. – So you say it would be
whether it’s a deterrent or not. – Yes.
– Okay, one metric, would it be a deterrent, yeah. And what else, anyone else? So you’re just saying that’s the metric, you’re not sure whether
it’s a good or bad thing. You think it’s a good thing? Somebody who thinks it’s a good thing, why is it a good thing? Yes, sir? – [Man] I think it
provides an infrastructure for countries who have gone through particular bad situations,
war crimes, genocides, to have access to an institution that is judicial in its form when otherwise it wouldn’t have it. – Any other thoughts? Anyone else think it’s a good thing? Yes, sir? I see one hand here. – [Man] Thank you. So, I think it’s not effective in fact, but it’s a good symbol in the world. – It’s a good symbol. A symbol of what exactly? – [Man] To show the
accountability of those– – That people can be held
accountable for what they do, that dictators or people
engaged in wars can, there’s some chance you
might be held accountable. It stands for that idea. So okay, anyone think it’s a bad thing? The truth is it’s tricky to evaluate. So, the small scale might
not matter that much because the question is
not whether it’s small but perhaps whether it’s scalable. And there’s a literature
in political science for which Martha Finnemore
and Kathryn Sikkink are famous where they talk about norm cascades. And the idea is that once a
norm starts to get established, provided a critical number, and scholars argue about
how many, endorse the norm, others join up as well. And interestingly on that front, in 2016, when South Africa
and Gambia and these others were threatening to storm out, there were a lot of predictions that it was all gonna fall apart and that there was gonna be
a massive African exodus. That didn’t happen. So to the extent that, they also talk about norm entrepreneurs, people who are trying to, this is the realm of ideas
now of our three I words, that norm entrepreneurs are
trying to get enough countries to start investing in a process that do then reach this tipping point where it will start to become embedded, it might become scalable, and so on. The deterrent effect obviously
is very tricky to evaluate, in the sense that at the level of what lawyers call specific deterrents, that’s deterring actual
individuals from committing crimes, most people, this is sort of parallel to the debates about the
death penalty in the US, most people who murder people are not deterred by the death penalty because the point of murdering someone is a point, first of all, nobody’s thinking about being apprehended and it’s usually seething
hatred, passion, et cetera. And so it’s not clear it has
any specific deterrent effect. Where would it deter others? That’s what we call general
deterrence, it’s hard to say. I would just point out one thing that nobody has really
fully thought through about this doctrine,
and this is think about about my earlier discussion of Hirschmann in connection to democratic transitions. I said that one of the
things that needs to happen to get dictators to give up power is that the cost of exist
must be low, relatively low, otherwise they’re gonna hang
on until the end of time. And so, for instance, Idi
Amin got to live out his life, ironically, in Libya, after
he was forced out of power. He had a place where he could go and he was not prosecuted for anything. Gaddafi, on the other hand,
was referred to the ICC. He was killed before he
was ever brought to trial. So, if you’re thinking about amnesty as part of a negotiated
settlement for a conflict, how that would square with this doctrine is a difficult thing to think through, and there are obviously trade-offs there. So, it’s not obvious, it’s not obvious how we should
think about this doctrine, but it is alive, it sort
of wobbled into existence, it is subject to all these criticisms, it’s inequitably applied. The US in particular has
been rather hypocritical in the way that it’s used the doctrine that it won’t allow
itself to be subjected to. But the norm entrepreneurs would argue this is the way that norms gradually get established and embedded in the international order, and so the goal should be to improve it and to address its defects rather than say that it’s
just an illegitimate way in which some countries beat up others. Let’s turn to the
Responsibility to Protect, which is in some ways a much
more ambitious rewriting of the international rules. Anyone know what that is? – [Man] Is it (mumbles)? – Pardon? – [Man] A fire in India at the– – No. Good reasonable guess, yeah. – [Man] Is it (mumbles)
genocide and war crimes over (mumbles) in Stockholm? – Well, it’s actually a NATO
bombing of Kosovo in 1999. And the NATO bombing of Kosovo in 1999 came after many years of civil wars that had basically broken out with the collapse of the Soviet Union and Yugoslavia had come to pieces. And there was ethnic cleansing
of Albanian Muslim Kosovars at the hands of Serbian militias going on. And the NATO alliance,
notice, the NATO alliance took a decision to intervene. Here’s President Clinton talking about it. – The Kosovars have been
victims of terrible atrocities. Their only hope was that the
world would not turn away in the face of ethnic
cleansing and killing, that the world would take a stand. We did, for 78 days. Because we did, the Kosovars will go home. To achieve our aims as an alliance, 19 democratic nations
with 780 million people working together in the first
sustained military operation in NATO’s history. The alliance did stay together. It is now stronger and
more united than ever, and I thank my fellow
leaders in the alliance for their fidelity and their fortitude. In the past four months we’ve seen some of the worst in
humanity in our lifetime, but we’ve also seen the
bravery of our troops, the resolve of our democracy,
the decency of our people, and the courage and determination
of the people of Kosovo. We now have a moment of hope
thanks to all those qualities, and we have to finish the
job and build the peace. – So. What had happened here was that this ongoing civil war had resulted in many human rights
violations on all sides. But this was the point at which, when there was this imminent
ethnic cleansing in Kosovo, that NATO decided to
intervene in mid 1999. And one thing about this intervention was that it was widely
judged to have succeeded, that is to say the ethnic cleansing ended and didn’t re-initiate. Even though there were no
NATO troops on the ground in Kosovo, there were
European Union troops massing on the border, some, but they never actually went in. It was very unusual for two reasons. One was that this was a NATO operation and it was in violation
of the NATO charter. We’ve talked about NATO. You know that Article 5
authorizes NATO members to use force and indeed to turn
to one another to use force if any one of them was attacked, but no NATO member was threatened during the Kosovo and the
former Yugoslavia civil war. There was no threat to any member of NATO. So this was not a legitimate activity for NATO as a defensive alliance
to have been engaged in. It was also not authorized
by the Security Council. Why was it not authorized
by the Security Council? Because the Russians were
basically on the Serbian, sympathetic to the Serbian
side in this conflict, and clearly the Russians and
almost certainly the Chinese would have vetoed any
attempt to get authorization for NATO to get involved in this conflict. So there was no Security
Council authorization, and it was not anything that
one could legitimately say was part and parcel of NATO’s mandate to protect the member states. They just did it. They simply did it. Now, one might say, what
were Clinton’s motives? And some have said his motives were to divert attention from Monica Lewinsky. Christopher Hitchens,
among others, claimed that. But even, setting Monica Lewinsky aside, I think part of Clinton’s motivation surely was to redeem himself. He had taken so much
criticism after Rwanda for the US’s failure to act
in the Rwandan controversy, and here he was on the verge
of leaving the presidency, this is summer of 1999, and he thought, “This is
my moment to redeem myself “and to show that the
US will in fact act.” And indeed, he enunciated
what some of his biographers have called the Clinton Doctrine. He said here, shortly after that press
conference I showed you, he said, “Never forget
if we can do this here “and if we can say to people of the world, “whether you live in
Africa or Central Europe “or any other place, “if somebody comes
after innocent civilians “and tries to kill them en
masse because of their race, “their ethnic background,
or their religion, “and it is within our power
to stop it, we will stop it.” Very different than the
stance he took over Rwanda. And the Secretary General
of the UN was Kofi Annan, the Ghanaian Secretary
General now deceased, he got behind this. He said, “If humanitarian
intervention is, indeed, “an unacceptable assault on sovereignty, “how should we respond to
a Rwanda, to a Srebrenica, “to gross and systematic violations “that affect every precept
of our common humanity?” And his answer was, “The
sovereignty of states “must no longer be used as a shield “for gross violations of human rights.” This is a dramatic
statement in strong tension, to put it mildly, with
the charter of the UN. But the question becomes,
how can you do that? How does one do that, particularly given a
world of nation states whose sovereignty is protected? And so there was a lot of
hand-wringing and wrestling with this problem, and, interestingly, the Prime Minister of
Sweden took it upon himself to appoint a Commission on Kosovo, which was established in August of 1999. And the Commission reported
with the following statement. It said, “The Commission concludes “that the NATO military intervention “was illegal but legitimate.” (audience laughs) It was illegal but legitimate. “It was illegal because it
did not receive prior approval “from the Security Council. “However, the Commission considers “that the intervention was justified “because all diplomatic
avenues had been exhausted “and because the
intervention had the effect “of liberating the majority
population of Kosovo “from a long period of
oppression under Serbian rule.” Illegal but legitimate. What can that mean? What do we, can we say
something is illegal, yes? You need a microphone, we’ll need a dissertation here. Wait a second, get the microphone. They’ll never hear you otherwise. – [Man] Yeah, I mean, it just seems like it’s the international community trying to reconcile the contradiction of, that you just put,
national sovereignty but sometimes intervention’s good. This seems like you can’t have war or the idea of armed intervention that still respects national sovereignty, and so it seems like this
is just a halfway return to the pre-World War II consensus of, well, national sovereignty is a given. – So, it certainly is
a different conception of national sovereignty, but we’re saying it’s
illegal but legitimate, we can say we can
violate international law when it’s legitimate for us to do so. But what legitimates the action? How is it legitimate,
what makes it legitimate? – [Man] Perhaps thinking about the ideas that interest institutions? It’s a matter moral interest, and especially power interest, than institutions in itself. – One more at the back, yeah? Oh okay, yes, sir? We’ll take two more,
you and then you, yeah. – [Man] I would just say R2P
trumps the international order. – Say that again. – [Man] R2P trumps the
international order. – Responsibility, well, we don’t yet have a doctrine
of R2P at this time, right? So we will have to see, but yeah. Okay, the gentleman at the
back, the last one, yeah. – [Man] The ends justify the means. – The ends justify the means. So another way of saying that and perhaps capturing what
some others were saying is perhaps sometimes it’s better to ask for forgiveness than permission. (audience laughs)
Right? Sometimes it’s better
to ask for forgiveness. If you know some horrific
thing is about to happen that you can stop, and you also know that if
you ask for permission, it’s gonna be denied, maybe you’d better just do it. Maybe you’d better just do it. And moral philosophers have
debated this principle, or maybe it’s a pragmatic
judgment and not a principle, but there’s a principle
behind it, presumably, which is that some things
are so egregiously bad and so frightening that if the legal order
will not permit it, it’s too bad at some
level for the legal order. And so this was I think the thinking behind this idea of
illegal but legitimate. But of course, how do you
turn a norm like that, how do you turn a dictum
like that into a norm, much less a rule, how can
you institutionalize the idea that it’s okay to ask for forgiveness rather than permission? Not obvious how you can do that because the whole idea is you’re acting against the existing institutions because you’ve concluded that
it’s the right thing to do. So how might one institutionalize that? And it’s important to say
that no everybody agreed. Not everybody agreed. We say the international community this, the international community that. The international community didn’t agree. Not everyone thought that Kosovo
should become a precedent, especially in the Global South. The logic was seen as
a potential smokescreen for major powers to
pursue their own agendas. Within months, the G77, this is a large number of
developing world countries, condemned the so-called
humanitarian intervention. South Africa and India
amplified this criticism. Nelson Mandela, who had
recently stepped down as South Africa’s president, said, “When two nations,” he
wasn’t fooled by the idea that it was a large coaliltion, it was basically the US and Britain, “take it upon themselves
to police the world “without getting
authorization from the UN, “we must condemn that, “because it can lead
to another world war.” The South African government, reflecting the positions
of the Non-Aligned Movement and the OAU, declared,
“Unilateral intervention, “no matter how noble the
pretext, is not acceptable.” India called the Kosovo operation “a flagrant violation of
all international norms, “against the provisions of the UN Charter, “and seen as a direct and
unprovoked aggression.” So, as I said, there
wasn’t consensus about this by any means across the Global South, particularly because
this was a NATO operation led by the US. So that led to the, it was followed by, I shouldn’t say led, it wasn’t caused, but it was followed by an
International Commission on Intervention and State Sovereignty that was convened in London, again, with input from
the UN and various NGOs. And it was chaired by Gareth Evans, a former Australian prime minister, Mohamed Sahnoun, who was
an Algerian diplomat, and a major player in it
was the Canadian academic and sometimes not very
successful Canadian politician Michael Ignatieff. And they came up with this idea of the Responsibility to Protect. We’ll talk in some depth
about it in a minute but I want to note, first of all, that the concept of the
Responsibility to Protect is as important for what it doesn’t say as for what it does say. It doesn’t say that there’s any right. It’s talking about a responsibility. It doesn’t say that there’s a right. The responsibility here is not, there’s not a responsibility on the UN or on the Security Council but a responsibility, and the phrase Responsibility to Protect refers to governments. Governments have a
responsibility to protect not only their citizens but people living within
their territories. And it doesn’t talk about
an obligation to intervene. Even though it suggests there’s some kind of
imperative for action, it doesn’t say when you have certain kinds of rights violations, there’s
an obligation to intervene. I’ll say of this more later. Again, in the Global South,
this was not welcomed. And the African Union said, “Well, if the UN is gonna
start taking it upon itself “to authorize intervening in
other countries, so are we.” And so the African
Union asserted the right “to intervene in a member
state,” that’s pretty much, I think there’s 50 members
of the African Union, almost every African country, “pursuant to a decision by the Assembly, “in grave circumstances,
namely war crimes, “genocide, and crimes against humanity.” And notice that there’s no
mention of the Security Council despite the fact that the UN Charter reserves to the Security Council a monopoly on declaring
non-defensive use of force. So, essentially, the
African Union is saying, “Well, if the Security Council
or NATO or other groups “are going to start
intervening in countries, “then so are we.” And so the stability
envisaged in the NATO Charter could be seemed to be threatened. In 2005, the UN General Assembly debated this so-called World
Summit Outcome Document and adopted it, behaving now
as a kind of legislature. That is to say, remember what I said at the
beginning of the lecture, that the UN is a creature of a treaty, the General Assembly is not a legislature. But in any case, they adopted
this provision and they said, “Each individual state,” country, “has the responsibility
to protect its populations “from genocide, war
crimes, ethnic cleansing, “and crimes against humanity.” These all have complex legal definitions which people wrangle over. “This responsibility entails
the prevention of such crimes, “including their incitement, “through appropriate and necessary means. “We,” this is the UN General Assembly, “accept that responsibility “and will act within accordance of it. “We are prepared to
take collective action, “in a timely and decisive manner, “through the Security Council, “on a case-by-case
basis and in cooperation “with relevant regional
organizations as appropriate, “should peaceful means be inadequate “and national authorities manifestly fail “to protect their populations
from genocide, war crimes, “ethnic cleansing, and
crimes against humanity.” So here you have the UN General Assembly taking it upon itself to say there’s a responsibility to protect, it falls on governments, and if they don’t live up
to that responsibility, the Security Council can authorize regional organizations and
other players to intervene. That’s hugely important because the UN does not really have much of an army, and UN peacekeepers traditionally have only gone into conflicts
once peace is established, as we saw at the very beginning
with the Rwanda picture. They don’t go in to actually
get involved in peacemaking, but only in peacekeeping. So some things to think about with the Responsibility to Protect. First of all, unlike the ICC, it’s binding on signatories
and non-signatories alike. So they have declared unilaterally that this doctrine is
binding on all governments. They restricted it to these
four major categories of crimes: genocide, crimes against humanity, war crimes, and ethnic cleansing. Even though the (mumbles) commission had wanted a much more
expansive set of things to protect against, but the thinking was that in order to get a majority to accept it, it would have to remain focused on the most egregious violations. The domestic focus here
seems that, indeed, does contradict the UN Charter’s focus on international peace and security, because now, in effect, what R2P has said is that it is legitimate for
the international community, as represented by the United Nations and authorized by the Security Council, to intervene in the domestic
affairs of a country, if it’s triggered by one of those, genocide, crimes against humanity, war crimes, or ethnic cleansing. Another feature of it that’s worth noting, and this, again, goes to
my earlier observation that there’s no right
to demand intervention. It’s not binding on the
Security Council to intervene. As I said, it gives wide latitude as to when the Security
Council will be intervening, because it intervenes
on a case-by-case basis. So the Security Council may intervene, but there’s nothing in
this doctrine which says the Security Council must intervene in any particular conflict, and that will turn out to be important. The Non-Aligned Movement didn’t like it. And the Non-Aligned Movement is a group of mostly middle-income
countries around the world. So, how should we think
about this doctrine? This is obviously, as I said, both the ICC and the
Responsibility to Protect are starting to rewrite the international
architecture of intervention, but this is a much more
ambitious rewriting than the ICC and we’re now not talking about prosecuting a few individual perpetrators, we’re actually talking about
intervening in countries during ongoing conflicts to make peace and to stop
gross human rights violations. Is this a good move? Who thinks it’s a good
move, somebody wanna… Okay, yes, ma’am? – [Woman] More norm setting? – So say a little bit more
about the norm setting. – I don’t know much more. (audience laughs) It seems like it would be a
good norm to have for humanity. – Okay, it’s certainly a norm. It seems like it’s gone
beyond a norm now, right? This is really changing
international institutions, right? We now have the Security
Council in a position to actually intervene. It is, if you like, a common law, by which I mean a gradual but
nonetheless decisive rewriting of the rules governing UN intervention within the affairs of governments. It doesn’t mean it’s good or
bad, but it’s very expensive. Any other? Yes, sir? Wait, wait a second. – [Man] I think it’s highly contradictory, and any country can,
depending on its own utility, can decide whether to consider
it as a genocide or not. And I can give two examples. The US was highly quick in
setting the war affairs in Syria, while in Ukraine, when the radicals just broke into the Opera House in Odessa, it was kind of okay because– – So there may be disagreement as to whether the
conditions prevail or not? At least in some cases. – [Man] I mean I think
it can be still biased, depending on the– – It can be manipulated.
– Yes. – It could be manipulated, but any doctrine can be manipulated. Just to play devil’s advocate
to your comment for a minute, let’s go back to Rwanda in 1994. The fact is no one had any
doubt in Rwanda in 1994 that genocide was going on. You could go back now through the archives and it’s perfectly plain that
all the major powers knew that genocide was imminent
and then that it was starting and then it went on for many months. Now, they might not have
been able to stop it, it might not have been successful, but the book I put on the syllabus I think is probably the best on this. Certainly the estimates are that of the 800,000 to
a million people killed, had there been intervention, at least 200,000 people
could’ve been saved. So you could say, well, there’d
still be 600,000 killed. Yes, but 200,000 people’s not
a trivial number of people to save, even if that’s double
what really could have been, it still would’ve been. So that would be, there might be cases
where it’s manipulable, there might be cases where it’s unclear, where it’s disputed, and we’ll talk about one of
those cases in a few classes, three classes from today. So, yeah. Any other thoughts about
whether this is a good way for international law of
intervention to evolve, yeah? – [Man] Within the constraint
of there being a veto, it’s an establishment of
some kind of world government as a legitimate user of force,
and I would support that. – You like the idea that there’s a veto? – [Man] No, I like the idea that there’s a legitimate use
of force in this instance. But it does basically change the charter of the United Nations. But it has the constraint
still that there is veto– – There’s a veto in the
Security Council, yeah. The permanent members, there are now permanent members
and non-permanent members of the Security Council, but the original five still have veto. Okay, so. Anyone think it’s a bad idea? We’ll defer judgment of that
question a little while. So here were some early
tests of this doctrine. This is actually before the
Outcome had been adopted by the General Assembly in Sudan. The Security Council
called for an arms embargo and referred to the idea, it
was still being debated then. In Kenya in 2006, after the election, there was an eruption of ethnic violence, 800 people were killed, more than 1/4 of a million were displaced, and the French called for a
Responsibility to Protect action to intervene. Kofi Annan headed it off, basically, by going and negotiating a settlement. And some argued that it was the threat of the possibility of intervention that actually helped him
negotiate or mediate the conflict in a way that headed off the
violence, or damped it down. In Guinea in 2008 there
was an attempted coup. The leader Camara’s troops
rioted against demonstrators, and by then it was Ban Ki-moon
who was Secretary General. He set up an inquiry and
raised the possibility of crimes against humanity and started again talking about R2P. The US and the EU suspended assistance but it became moot after
Camara fled the country. And so, again, they were on the verge of intervening on the grounds that there were gross human
rights violations going on, but then they actually didn’t. And then in 2011, I
mentioned to you earlier, that the Security Council
unanimously, including the US, referred Gaddafi to the
ICC for prosecution. But in the course of that referral, they talked about the
Responsibility to Protect being triggered possibly in Libya. This was in February of 2011. They were hinting already
that there might be, this is following the
outbreak of the Arab Spring. We’ve had eruptions in
Tunisia and in Egypt and now in Libya. Civil war breaks out and there
were claims, disputed claims, about imminent slaughter in Benghazi. Much disputed, and we will
talk about the disputes later. In any event, they
referred Gaddafi to the ICC and they talked about the
Responsibility to Protect and used that to impose an
arms embargo on the country and various other sanctions. The first real test of R2P
came the following month, when the Security Council
adopted UN Resolution 1973 authorizing intervention
in the Libyan conflict. And we’ll return to that on October 24th and we’ll then think about, at the end of that examination we’ll see what we think
about the future prospects for the doctrine of
Responsibility to Protect. But first we need to attend
to the Global War on Terror, which fundamentally changed the international legal
and political landscape in ways that affected the prospects for doctrines like the
Responsibility to Protect, and we’ll do that starting next time. (gentle music)

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