Atrocity Crimes Framing the Responsibility to Protect

By Scheffer, David | Case Western Reserve Journal of International Law, Spring 2008 | Go to article overview

Atrocity Crimes Framing the Responsibility to Protect


Scheffer, David, Case Western Reserve Journal of International Law


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

CONTEMPORARY EVOLUTION OF R2P

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

   Each individual State has the responsibility to protect its
   populations from genocide, war crimes, ethnic cleansing and crimes
   against humanity. This responsibility entails the prevention of
   such crimes, including their incitement, through appropriate and
   necessary means. We accept that responsibility and will act in
   accordance with it.... (2)

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

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

   the primary responsibility for the protection of [a state's] people
   lies with the state itself.... Where a population is suffering
   serious harm, as a result of internal war, insurgency, repression
   or state failure, and the state in question is unwilling or unable
   to halt or avert it, the principle of nonintervention yields to the
   international responsibility to protect. … 

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