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Should restricting access to aid be considered a crime against humanity under the R2P framework? Should R2P be expanded to include deliberate restriction of aid or willful abandonment of populations in the face of natural disasters? Part One of this two-part series outlined the debate that occurred in 2008 surrounding Cyclone Nargis in Myanmar. It also highlighted the popular arguments for including instances of willful omission into the R2P framework. Part Two will explore the arguments against the expansion of R2P to include crimes of omission, in particular, willful inaction in the face of natural disasters. Furthermore, this part will attempt to find the best way forward that prioritizes the concern for civilians on the ground in natural disaster situations where potential crimes against humanity are occurring
Why Expanding R2P Will Hurt the Doctrine Through Ideological Overreach
Should the scope of Responsibility to Protect (R2P) include willful inaction in the face of natural disasters? The arguments against expanding the scope of R2P to include willful inaction in the face of natural disasters are often centered in the concern of ideological overstretch and safeguarding R2P from further backlash. Whether or not such instances should be considered R2P cases has surprisingly generated somewhat of a one-sided consensus within the international community concerning the Cyclone Nargis crisis in 2008.
Many prominent NGOs, the UN Secretary-General and his special adviser on R2P, pro-R2P governments and the usual skeptics have spoken out against extending R2P to cover the international response to natural disasters on the grounds that it would stretch the concept beyond recognition or operational utility. Their core argument is that R2P is already highly controversial –– broadening its scope would make its application much more difficult. Expanding the doctrine could have the perverse effect of weakening support for tackling the Rwanda-like crisis of tomorrow.
Even the most senior scholars on R2P, like the former Special Adviser to the Secretary-General on the Prevention of Genocide, Edward Luck, have expressed hesitancy over incorporating willful omission in the face of natural disasters into R2P. Luck suggested at the time of Cyclone Nargis that: “it would be a misapplication of responsibility to protect principles to apply them at this point to the unfolding tragedy in Myanmar.” Luck also mentioned that since the Outcome Document of the 2005 [World] Summit limited R2P to just four crimes, “we must focus our efforts on implementing these principles in these four cases.” UN Secretary-General, Ban Ki-moon, believed that the case of Myanmar was a humanitarian crisis and it should be dealt with it that way. According to Gareth Evans, if R2P “is to be about protecting, the Inuit people of the Arctic Circle from the ravages of climate change — if it is be about protecting everybody from everything — it will end up protecting nobody from anything.
Theoretically, the misapplication of the responsibility to protect to natural disasters might damage the R2P principle itself, making it more difficult to enact in genuine cases of genocide and mass atrocities. Paragraphs 138 and 139 of the 2005 World Summit Outcome represent an agreed upon international consensus on the scope and breadth of the doctrine. These sections were carefully engineered by negotiators to ensure that R2P only apply to four crimes: genocide, war crimes, ethnic cleansing, and crimes against humanity. Expanding R2P to include natural disasters and grave humanitarian situations would be inconsistent with the R2P’s founding language. It would also validate the fears of many states that R2P would be used to further infringe on the sovereign rights of states.
The current vitality of R2P is intimately tied to the reality that there is a deep misunderstanding about R2P in the international community, as many governments misconstrue the norm as a Western interventionist ploy. With the BRICKS countries and many in the Global South still mistrustful of R2P, advocating the expansion of R2P in this climate could be devastating to the doctrine. Thakur Ramesh stated at the time of Cyclone Nargis that invoking R2P is justified to stop large-scale killings or ethnic cleansing, however it cannot be invoked in cases of natural disasters. Furthermore, the Asia Pacific Centre for R2P did recognize the possibility of a crime against humanity being committed if “the Burmese government is deliberately withholding aid to people who are facing immediate risk of death.” The Centre ultimately advised against labeling the Cyclone Nargis crisis an R2P situation, stating that: “At present there is no evidence of widespread intent by authorities to cause great suffering.” Beyond their doubts about what expanding R2P would mean for the future of the doctrine, it’s clear the Asia Pacific Centre for R2P, among others, determined there was not a sound legal foundation for labeling the crisis in 2008 as “R2P applicable.”
Legally, many argued at the time that blocking aid isn’t a violation of one of the four R2P crimes. For acts to constitute crimes against humanity there must be a clear pattern with obvious intent. Alex Bellamy made this point by reiterating that crimes against humanity involve acts committed as part of a systematic attack against a civilian population. Bellamy claimed that the government of Myanmar was not engaged in such attacks in the Irrawaddy Delta since it was not denying all aid, or preventing aid agencies already deployed in the region from going about their work. Furthermore, he believed there was no evidence of widespread intent by military junta to cause deliberate suffering and that proving so would be nearly impossible. Determining intent, according to many, is the main reason why Myanmar was not an R2P-applicable case (although many like Wong and Ford strongly disagreed). If cases of willful omission by governments legally triggered the R2P doctrine, there would still be compelling reasons R2P-based intervention would be an inappropriate path according to some.
The political opposition to expanding R2P to include natural disaster situations, specifically at the United Nations Security Council, can’t be overstated. Several Security Council members made it clear during that they would block any attempt to use the Council to impose assistance against the wishes of the Myanmar’s government. Additionally, Russia and China’s outright opposition to calls for R2P in such situations is a major obstacle and clear indication that invoking R2P would never get past the Security Council. During the Cyclone Nargis, China and the Association of Southeast Asian Nations rejected the possibility of forcibly delivering supplies without the junta’s consent and argued that R2P did not apply to natural disasters.
The positions of China and the ASEAN countries only grew stronger after France’s Foreign Minister called for invoking R2P. The reluctance of ASEAN to view Cyclone Nargis as an R2P situation was not only because they did not believe that the principle applied in this case, but also because they were concerned about the potential interference in a nation’s domestic affairs. China, for example, claimed that the situation in Myanmar was not a matter of “international peace and security” and didn’t apply to the Security Council. There were other pathways at the UN, China argued, more appropriate for coordinating the delivery of international assistance (a point also made by many opponents to applying R2P in Myanmar).
Another important counterargument to advocates of expanding R2P is that misapplying the Responsibility to Protect would make humanitarian conditions worse in Myanmar and elsewhere. Some commentators in 2008 were fearful of any forceful action by external actors to force aid into Myanmar for fear that their efforts would backfire and cut off the aid that was already successfully entering the disaster zones. Looking forward, they argued, efforts to apply R2P again, in a case of large-scale killings, could be undercut. In other words, they feared that invoking R2P in Myanmar could have endangered lives elsewhere tomorrow and possible even delayed immediately help for Nargis victims.
On this point, the impracticality and potential collateral damage associated with potential military action under an R2P mandated mission underscore the broad concerns from many in the international community about how R2P would be actualized. As Alex Bellamy stated in 2010: “those who have attempted to use R2P to justify the delivery of humanitarian aid against the wishes of the host state (Myanmar) have not really considered the practicalities.” From airdrops to full-scale invasions, it’s hard to see any viable and practical approaches to implementing R2P in a natural disaster setting without further harming the livelihood of civilians on the ground, he said. Bellamy aptly summed up the counter-productivity of potential intervention strategies: “The problem with these approaches is they threaten to divert attention away from the delivery of humanitarian relief, making cooperation with local authorities more difficult and regional support less forthcoming, ultimately delaying assistance to those who need it most.”
Andrew O’Neil stated in 2008 that a full-scale invasion with humanitarian goals would have improved the conditions of the victims on the ground. Bellamy and many others in the genocide prevention community had major problems with such proposals, more specifically, the time it would take to mobilize, the effect it would have on aid flows and the likelihood it would be met with military resistance by the junta. Airdropping aid was another possibility proposed by many, but Bellamy and others noted the imprecision of airdrops, the possibility of drops being seized by the government, and the need for medical care and water purification kits to be delivered on the ground.
It’s hard imagine aid being delivered effectively without the cooperation of the Myanmar’s government, on top of the fact that Myanmar government would have likely expelled all of the United Nations staff members who were managing ongoing aid operations. More useful and practical options include utilizing regional organizations in cooperation with the UN Secretary General’s office, along with pressure from the UN Security Council and the General Assembly. Working to secure pathways and facilitate the work of associated relief agencies like UNICEF, the World Food Programme and UNHCR are some of the more tangible steps that can be taken to help civilians on the ground.
Ashley McLachlan-Bent and John Langmore claimed that “although it may be weak when it comes to rebuking the misjudged actions of its member states, ASEAN in the aftermath of Cyclone Nargis was, arguably, far more successful than any other attempts to engage the regime, conduct disaster assessments and facilitate the entry of aid into the country.” This reflects the sentiments felt by many, not only that invoking R2P during Nargis would have been counterproductive, both in terms of getting aid to civilians and in ensuring R2P’s utility in the long-term, but that there were more feasible options involving regional actors and the UN that were ultimately more constructive.
This brief has outlined the arguments for and against making R2P applicable in situations of natural disasters, or in cases of willful inaction by governments when their populations are facing humanitarian catastrophes. It is the hope that this piece helps one better understand the debate that occurred during the Cyclone Nargis crisis in 2008, as well as the continuing discussions within the international community on the appropriateness of viewing cases of willful omission through an R2P framework. While there were strong arguments made by many, including several of the founders of R2P, throughout the Cyclone Nargis crisis there remained several points that both sides agreed upon
Firstly, this is a debate that has waned since 2008 largely without a solution from the mass atrocity/ genocide prevention community. Given the mass confusion and disagreement during the last natural disaster turned mass atrocity situation (Cyclone Nargis), not having this discussion in the present could sacrifice timely and coordinated responses in the future. Working through this complex issue and establishing a strong international consensus or framework of action might avoid the delayed action or ineffective cooperation that would occur the next time a Cyclone Nargis comes around. This isn’t an impossible feat – the line that divided those for and against applying R2P in Myanmar wasn’t that wide. For example, even those who’ve argued against incorporating such cases into R2P have conceded that a situation like Cyclone Nargis came awfully close to being an R2P situation. It is important to note that the international community has rarely seen such examples of intentional omission to act in the face of natural disasters – the mechanisms for action and opportunities for such debates have been few and far between. Given the acceptance by many that such acts constitute crimes against humanity, along with the rising severity in storms and destructive weather patterns due to the effects of climate change, it might be time to revisit this issue sooner rather than later.
Secondly, the torchbearers of the R2P doctrine would be wise to use this issue as an opportunity to refine and perfect the norm, specifically on how it would apply in specific cases. It’s important to remember that in 2008 the international community unanimously accepted that the R2P exists and does require states to protect populations at risk. Since then, the norm has only grown in acceptance and importance. The main question is not whether or not states accept R2P, but rather how to apply it. Not only is this of great importance in terms of working out the unique case of R2P and natural disasters, but it’s also reflective of the larger issues that face the R2P norm. Establishing consensus in order to shape a framework for applying R2P in unconventional cases (where crimes against humanity are occurring) remains a major challenge. Doing so while stressing an understanding of an R2P that flexes its preventative aspects (Pillars I and II) rather than interventionist ones will be just as important.
A new view of R2P, coined by Jarrod Wong as “a constructive interpretation,” can address some of the aforementioned challenges. According to Wong, this evolved view of R2P can “apply not just to a government’s failure to protect its people from affirmatively perpetrated mass atrocities but also from harm based on omission where the government’s failure to act also constitutes a crime against humanity under international law.” The constructive interpretation of R2P would remove the focus off of the reference to natural disasters and instead shift it to crimes of omission where the failure to act constitutes a crime against humanity under international law. It’s important to point out that “natural disasters” were originally among the categories qualifying for R2P, but were ultimately removed by the time the U.N. adopted the doctrine in 2005. Wong’s interpretation reflects the points made by many: that the focus on “natural disasters” avoids the important distinction that it’s not that disasters at fault, but rather the human element that can acerbate suffering and constitute a crime against humanity.
According to Lloyd Axworthy, former Canadian foreign minister, “there is no moral difference between an innocent person being killed by machete or AK-47, or starving to death, or dying in a cholera pandemic that could be avoided by proper international responses.” Viewing R2P in such a way can provide for a more consistent approach to situations in which crimes against humanity are committed by willful omission. Ultimately, this is an issue that comes down to how one determined R2P should be used moving forward. Some claim that the international community should recognize that R2P “is not a delicate vase but a sturdy pot which states must be willing to take down off the shelf and use.” Others, more concerned with preserving R2P’s already fragile political capital, would be reluctant to agree that applying it in situations other than classic conflict-based crimes is constructive for both the norm and its future utility. The lack of consensus on how to apply R2P in cases of willful omission requires greater debate and increased attention. Doing so would prevent delayed responses to a future crisis, as well as the unconstructive and time-consuming political debates that would inevitably accompany it. Having constructive dialogue now on this complex issue might better protect civilian populations at risk in the future, which is what R2P ultimately was created to do.
Should restricting access to aid be considered a crime against humanity under the R2P framework? Should R2P be expanded to include deliberate restriction of aid or willful abandonment of populations in the face of natural disasters? This piece is the first part of a two-part blog series that will examine this largely unsettled issue from the point of view of the mass atrocity/ genocide prevention community.
Since the advent and proliferation of the Responsibility to Protect norm (R2P), which emerged from the Conference on State Sovereignty in 2001, a global paradigm shift has begun to take root concerning the relationship between governments and their peoples. R2P puts forward that it is a state’s duty to protect their populations and that sovereignty should no longer be used a shield for governments to hide behind. In particular, states have a responsibility to protect civilians from four particular crimes, namely: crimes against humanity, war crimes, ethnic cleansing and genocide. The growing ubiquity of R2P and its institutionalization can be seen (in recent years) within the United Nations, regional organizations and capitals across the world, thus shifting the focus of international conflicts from the state to the human level. The debate and controversy surrounding R2P has been plentiful and typically focused on the question of sovereignty, the legitimacy (and effectiveness) of interventions and the utility of R2P as a normative framework for action. But lost aside these more prominent debates is a particular controversy that emerged after Cyclone Nargis in 2008 in Myanmar.
Prompted by France’s Foreign Minister invoking R2P at the UN in the wake of the Myanmar government’s reluctance to allow aid to civilians, a fierce debate ensued concerning the doctrine’s applicability in Myanmar, and more generally, its applicability to natural disasters. The question of whether or not a government’s refusal to aid civilians in a disaster setting constitutes an R2P case quickly became a hot topic in policy circles both in Turtle Bay and in other global political spheres in 2008. But due to blowback, any traction this idea had received has largely abated since. Given the recent cases of governments refusing to directly or indirectly assist civilians during natural disasters, namely in Darfur and Myanmar, the relevancy of this debate should be revisited. While many in the mass atrocity/genocide prevention community have shunned the prospect of natural disasters being considered as R2P cases, the legal and moral arguments for doing so shouldn’t be discounted. This piece will seek to outline the recent history of this debate, the prevailing arguments on both sides, and a way forward that most effectively prioritizes constructive action and policy-specific solutions over attention-diverting ideological and politically motivated debates.
Why Including Crimes of Omission into R2P is the Logical Evolution of a Doctrine
As set out in the 2005 UN Summit Outcome Document, R2P applies only to a state’s failure to protect its populace from mass atrocity crimes, i.e., “genocide, war crimes, ethnic cleansing, and crimes against humanity.” The UN’s definition is distinctly narrower than the original expression of the doctrine (as formulated by the ICISS), as it specifically excludes instances such as “overwhelming natural or environmental catastrophes, where the state concerned is either unwilling or unable to cope, or call for assistance, and significant loss of life is occurring or threatened.” The result was what Alex Bellamy of the University of Queensland has called “R2P Lite”. Nevertheless, crimes against humanity remained a trigger for the invocation of R2P, according to the 2005 Outcome Document. The core question that had divided the international community in 2008 was this: could and should inaction of a government be categorized as a crime against humanity?
Some commentators believe that R2P can be applicable in such cases, specifically Gareth Evans (although his opinions reflect mixed views). In 2008, Evans claimed that “Myanmar’s failure to help its citizens and refusal to allow for the delivery of aid, [its actions] could be characterized as mistreatment of the population, and therefore an ‘attack’ against its population that intentionally caused great suffering.” Thus, in situations where a country denies aid and at the same time does not take measures to help its population, many believe the doctrine of R2P could be implemented on the basis of a “crime against humanity.” Also chiming in on this issue in 2008 was John Virgoe, the International Crisis Group’s Southeast Asia Director, who stated that whilst his organization wasn’t ready to call for an international intervention, the situation was approaching an R2P scenario because of the potential commission of crimes against humanity. Former Canadian foreign minister Lloyd Axworthy was one of the most ardent supporters of viewing the situation in Myanmar through an R2P lens. Axworthy claimed that due to past failures in Darfur and Congo, the international community needs advocates who would support and advance R2P in situations where crimes against humanity are occurring. Axworthy also believed that “the application of R2P to the situation in Myanmar would be a strong demonstration, especially to Asian countries, of the importance and viability of this international norm.”
From a legal perspective, Jarrod Wong’s inquiry into whether crimes of omission fit the description of the Rome Statute’s definition of a “crime against humanity” is particularly useful. Wong points to Article 7 of the Rome Statute of the International Criminal Court, which defines crimes against humanity as: “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: murder, or other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” Wong makes the point that triggering R2P for crimes of omission is justified by prevailing international criminal jurisprudence, and “there is no need to recognize natural disaster situations or any particular context involving harm by omission as a new and independent basis for invoking R2P.”
Theoretically, the only difference between crimes of commission, such as mass executions, and acts of omission, is in the severity of the crime not the type. According to Wong it is the state’s reluctance to act, not the natural disaster, that is considered the cause of the harm. If a state’s deliberate inaction can be identified as a crime against humanity, and the state is manifestly failing to protect its population, R2P should legally apply to the situation. Because of this, according to Wong, R2P can then be “applied equally to a state’s failure to protect its population from harm caused by its omission to act when that omission constitutes a crime against humanity.” Gareth Evans also stated that what occurred in Myanmar could classify as a crime against humanity in two ways. Firstly, it could classify as a crime against humanity by fitting the description of “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”. Secondly, it may fit under the international crime of “extermination”, defined in the Rome Statute as including “intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.”
Others have echoed Wong’s legal rationale by citing that the jurisprudence of international courts establishes that crimes against humanity can be caused either by acts of commission or omission, but only if those omissions are found with criminal intent. Stuart Ford found this point particularly important since many who reasoned that R2P did not apply to the situation in Myanmar claimed the junta’s blocking of aid was substantially different from deliberate state-sponsored killings that classically trigger R2P. But Ford effectively makes the legal case that “if killing via omission demonstrates the requisite criminal intent, it is just as much a crime against humanity as killing by commission.”
Judith Raffelseder’s legal dissection of this issue reached the same conclusion. The evidence of the situation proved that the military junta’s actions met the criteria of a crime against humanity because “it consisted of an organized pattern of non-accidental repetition of criminal conduct.” Raffelseder also concluded that the “blocking of aid was a crime against humanity that was part of a widespread and systematic attack against the civilian population.” Furthermore, Ford also concluded in his legal analysis that “all of the elements of a crime against humanity were present in Myanmar in the immediate aftermath of Cyclone Nargis.” One of Ford’s central points was that while the legal foundations for triggering R2P in a case like Cyclone Nargis were quite strong, the political will to implement it wasn’t there (in fact it was quite the opposite). Given this strong legal foundation for classifying government refusal to aid civilians in the wake of natural disasters as a crime against humanity, and given the fact that the purpose of R2P is to provide a framework for which the international community can effectively address such crimes, it is hard to discount the rationale of those calling for R2P to apply in such situations.
Among the concerns of expanding R2P is that doing so would jeopardize its already fragile political standing and ultimately the effectiveness future applications. Politically, it’s apparent why natural disasters were ultimately removed from the list of crimes that would trigger R2P from the 2005 Summit Outcome document. But is R2P really at risk of being overexposed and overused, or is it just as much at risk of being diminished as a result of its underuse? Given the international paralysis on Syria, the unrelenting abuses in Darfur and ongoing mass atrocities in Myanmar, the consequences of failing to exercise R2P to stop atrocities is a somber indication that the former is proving to be the more perilous.
Proponents of employing R2P in Myanmar reasoned that the reluctance to do so in situations where natural disasters are intertwined with crimes against humanity contradicts the doctrine’s core intention: to save civilians lives. At the heart of this line of thinking is the idea that there is no moral difference between a government shooting 100 civilians or killing 100 by blocking access to clean water –– the result is the same. As Gareth Evans put it, “if what the generals are now doing, in effect denying relief to hundreds of thousands of people at real and immediate risk of death can itself be characterized as a crime against humanity, then the responsibility to protect principle does indeed cut in.” Roberta Cohen also argued in support of R2P’s applicability by stating “that the aftermath of Cyclone Nargis is a case for R2P because what started as a natural disaster turned into a man-made disaster, and the crime committed could constitute a crime against humanity.”
Realistically, it’s probably true that 99.9% of natural disasters would never fit the requirements of an R2P situation. The rarity of such situations might lead some to believe that its inclusion into R2P would be a pointless endeavor. But the situation in Myanmar showed that in the face of such a rare situation, the international community was truly divided on how to respond and unsure of the legality and appropriateness of applying R2P to such a unique situation. But even those who disagreed on R2P’s applicability agreed that it should not have been so easily ruled out. One of the founders of R2P, Ramesh Thakur, who disagreed that Cyclone Nargis was an R2P situation, publicly stated “it would be short-sighted to rule out the relevance and application of R2P should the situation not improve and people start dying in large numbers from the after-effects of Cyclone Nargis.” Another architect of R2P, Gareth Evans, agreed that “when a government default is as grave as the course on which the Burmese generals now seem to be set, there is at least a prima facie case to answer for their intransigence being a crime against humanity – of a kind which would attract the responsibility to protect principle.”
A core problem though is not the weak consensus on R2P’s applicability here, but rather the lack of clarity on how it could be put into practice in such situations. On this point, Judith Raffelseder alludes to the importance R2P can play in acting as a framework that can guide responses to such situations. She claims that “the international framework of disaster response laws does not, or only to a certain extent, provide an answer to the refusal of aid in the aftermath of a disaster, whereas the relatively new concept of R2P is a useful tool in this respect.” While any sort of military intervention triggered by R2P would have likely been counterproductive in immediately helping victims on the ground, placing the situation in terms of R2P could have been useful by stressing the non-military means of coercion that define R2P. Timothy Garton Ash, a supporter of employing the R2P doctrine in Myanmar, also wondered how the international community could use non-military means of coercion to help civilians on the ground. Ashley McLachlan-Bent and John Langmore put forth that “ASEAN was ideally placed to use the concept of R2P as a way of demonstrating to the region that the principle does not automatically imply military intervention, but offers a variety of diplomatic pressures and strategies to ensure the best outcomes for those suffering.”
Regardless of which side of the argument one lies on, there’s a clear gap in terms of how an international response should look like under the R2P framework. Such a lack of policy-specific solutions may impede the breadth of the international community’s toolkit the next time a Cyclone Nargis situation occurs. The international community must ask itself whether this inclusion of instances of willful omission (into R2P), be it in cases of natural disasters, be seen as either the latest stage of an evolving understanding of R2P, or an ideological overstretch that, although morally attractive, jeopardizes the future of the R2P doctrine.
The second part of this blog series will explore the arguments against the expansion of R2P to include crimes of omission, in particular, willful inaction in the face of natural disasters. Furthermore, this piece will attempt to find the best way forward that prioritizes the concern for civilians on the ground in natural disaster situations where potential crimes against humanity are occurring.
Questions Concerning the Application of R2P
One of the most troubling crises in our world today is the conflict in Syria, where the United Nations estimates that 70,000 civilians have been killed and millions more people are displaced and in need of humanitarian assistance. The unrest, which began in the spring of 2011 with public uprising against Syrian president Bashar al-Assad’s repressive governance tactics, quickly escalated into violence from both sides when the military started opening fire on groups of demonstrators, who subsequently formed an opposition government comprised of several rebel factions. The Syrian government pushed the envelope even further when it was discovered in November of last year that its troops were mixing chemicals necessary for carrying out a campaign of chemical warfare. While a potential catastrophe was likely avoided due to immediate condemnation from the United States and the rest of the international community, the fact remains that Syria has the capacity to use these weapons at a later time. More important, despite various efforts to end the conflict, neither Syria’s opposition forces — which have also been shown to be committing crimes against humanity — nor the United Nations has been able to stop President Assad’s murderous attack on civilians, which has resulted in continued destruction of life.
The world community acknowledges that the crimes and atrocities being perpetuated in Syria must end. However, the means by which such an outcome might be achieved remain a topic of debate. In an effort to facilitate discussion around this dilemma, the Peace Islands Institute’s Center for Global Affairs and the Istanbul-based Journalists and Writers Foundation collaborated to host an event on February 28 titled “Responsibility to Protect: Implications to the Crises in Syria and Other Nations.”
The program included brief remarks from moderator Roy S. Lee, the permanent observer for the Asian-African Legal Consultative Organization to the United Nations and adjunct professor at Columbia University Law School, as well as presentations from Ambassador Herman Schaper, Permanent Representative of the Netherlands to the United Nations in New York, and Michael Doyle, the Harold Brown Professor of International Affairs, Law and Political Science at Columbia University.
Lee opened the program by addressing the dire circumstances in Syria. Specifically, he referenced nations’ attempts to persuade the United Nations Security Council (UNSC) to refer Syria’s case to the International Criminal Court (ICC), as well as the UNSC’s rejection of a draft resolution that would have “come close to Chapter VII actions.” He also highlighted Syria’s recent mobilization of chemical weapons and cited growing concerns among human rights groups that “the time to act is already overdue,” meaning that the next step is to invoke the Responsibility to Protect (R2P). Finally, he noted the United States’ announcement earlier that day that it would be pledging $60 million to assist opposition parties in Syria.
Following Lee’s introduction, Ambassador Schaper began by contrasting the action taken in Libya and the inaction in Syria with respect to the norm of R2P, highlighting how R2P itself was created with the intention of acting as a bridge between moral responsibility and legal obligations. In particular, Schaper referenced paragraphs 138 and 139 of the 2005 World Summit Outcome Document, which appear under the heading of “responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity,” and assert that while primary responsibility to protect lies with states themselves, the international community also has the duty to take collective action through the UNSC if states “manifestly fail” to uphold this responsibility. As such, Schaper called R2P an emerging norm that represents a “fundamental shift in the doctrine of sovereignty” and reflects “growing acceptance [of the belief that] a state is at the service of its citizens,” and not the other way around. In a similar way, he explained, “whether to act instead became an issue of how and when to act.”
Referring to recent successes of R2P in places like Guinea-Bissau, Kenya, and Libya, Schaper affirmed that “Syria is clearly an R2P situation” due to the crimes there, as well as the “clarity that the government of Syria is manifestly failing in its responsibility to protect.” He continually supported the use of R2P, given its validity, which lies in its “necessary legal basis through resolutions of the Security Council,” and suggested that the only viable option for Syria is to “go for a unified international approach to find a solution through a political tract.”
Professor Doyle expressed similar views, calling R2P “special” and “a landmark development in the international norm of human security.” Doyle’s subsequent remarks centered on what he termed the simultaneous license and leash offered by R2P. The license, he argued, is the capacity to “go beyond standard legal provisions seen in the UN Charter,” so as to invoke the “use of residual pressure” in crises like Syria. In contrast, the leash is represented by a restriction on the use of force to cover only four crimes (genocide, war crimes, ethnic cleansing, crimes against humanity), as well as on the authority for making such a determination – that is, a resolution issued by the UNSC.
After providing a quick overview of international law in relation to Chapter VII of the UN Charter, Doyle moved to the topic of legitimacy, and the question concerning when force could be used without UNSC approval. This discussion, he stated, was the impetus for the creation of the Canadian-led International Commission on Intervention and State Sovereignty (ICISS), which produced R2P in 2001 and presented it at the 2005 UN World Summit. In essence, by successfully narrowing down triggers for the use of force, R2P was viewed as something “that was within the purview of the Security Council,” and reflected both a license – the affirmation that the Security Council can, indeed, protect individuals – and a leash – that this exclusive authority is attached only to the UNSC.
In practice, Doyle cited the same examples mentioned by Schaper, and added a few words on the implications of R2P’s use in Libya and, so far, non-use in Syria, stating that some countries might now be feeling “buyer’s remorse.” Given that the crisis in Libya resulted in the death of Muammar Gaddafi and a subsequent regime change, Doyle commented on countries’ fears that R2P might be used in the future for purposes it was not initially intended to address. Nonetheless, Doyle strongly supported the positive potential offered by use of R2P in Syria, and offered two suggestions for action. First, he indicated the need for another conversation to take place on the circumstances under which R2P should be used. Second, Doyle said the UNSC should set up a subcommittee to monitor the implementation of R2P, upon its being authorized. The alternative, he surmised, would be a continued stalemate in Syria.
One of the most important concerns raised in the question-and-answer session was how to measure what is a “reasonable chance of success” as justification for military force under R2P. Doyle responded by underlining how difficult it is to ever prove successful prevention, as “we won’t know that [crimes] haven’t taken place” and thus cannot produce tangible evidence to support such claims. However, he did emphasize that the most essential component is the responsibility to rebuild – to help a people reestablish their own state – because “it would be a sad commentary on R2P if it was only [used for] military purposes.” Doyle concluded with perhaps an even better remark on “reasonable chance” criteria, insisting that success should truly be measured by whether or not it was acceptable to and accepted by those it hoped to – and hopefully did – protect.
Photo: Michelle Eberhard
Why the Whole World Should Be Watching Argentina
By ALEX ZUCKER
On Dec. 19, 2012, a federal court in Argentina sentenced 16 men to life in prison for crimes against humanity during the country’s 1976–83 military dictatorship.
These crimes—kidnapping, torture, murder, and sexual violence—were planned and carried out, by military and civilian officials alike, against activists who opposed the right-wing regime. The number of victims is estimated at 30,000 children, women, and men.
And the judges declared it a genocide. This is why the world should be watching.
On Dec. 9, 1948, the United Nations Convention on the Prevention and Punishment of the Crime of Genocide was the first human rights treaty adopted by the General Assembly—even before the Universal Declaration of Human Rights.
Sharp-eyed observers will notice, however, that the Genocide Convention offers protection only to national, ethnic, racial, and religious groups. Political, gender, and sexual identity groups, among others, do not qualify.
This makes it difficult to punish the crime, as the Argentinian scholar Daniel Feierstein explains, “given that nearly all modern genocides are, to some degree, politically motivated.”
In order to resolve this dilemma, Feierstein and his Argentinian colleagues argue that the concept of “partial destruction of a national group” may be interpreted to apply to groups not currently protected under the Genocide Convention.
In Argentina, for example, when the state kidnapped, tortured, murdered, and raped people who opposed the military regime, it was in fact destroying part of a national group: Argentinians—in this case defined by their political stance.
Based on this argument, the judges in Federal Oral Criminal Court No. 1 of La Plata declared that although the men they sentenced on Wednesday were guilty of crimes against humanity, their actions had been aimed at the extermination of a national group and therefore amounted to genocide.
While on the whole the world may be getting less violent, as Steven Pinker claims, it still depends who you are. Ethnic minorities and indigenous peoples; gays and lesbians; women—all remain at risk of being targeted by governments for violence, even outright physical destruction, because of their identity, because of who they are.
Last month’s verdict in La Plata offers a breakthrough approach to punishing those who seek to destroy human identity. Punishment is not enough, of course. The Genocide Convention is also about prevention. But Argentina has taken a step in a new direction. Down the road, it may save lives.
In a recent lawsuit, current Yale professor and former Mexican president Ernesto Zedillo has been accused of committing war crimes and crimes against humanity during his presidential tenure. But the U.S. State Department is arguing that Zedillo is immune from the suit, since his actions in connection with the 1997 Acteal massacre of 45 indigenous villagers were taken as part of his official duties as head of state.
Zedillo’s lawyer, Jonathan Freiman, motioned to dismiss the $50 million suit in January, citing the same reasoning. According to the Yale Daily News, “Ingrid Wuerth, a professor at Vanderbilt Law School who has written about immunity issues, said the courts have tended to side with State Department suggestions of immunity. She cautioned that such practices lend the government political power in altering the course of judicial proceedings.”
Though such cases are rare, it is common practice for the State Department to provide immunity recommendations to U.S. courts for cases concerning foreign heads of state. While State Department legal adviser Harold Koh wrote that the agency’s position took into account “the overall impact of [the case] on the foreign policy of the United States,” Curtis Bradley, a professor at Duke University School of Law, said it was primarily grounded in principles of international law. He said a federal court would have considered similar principles, and would likely have reached a comparable conclusion about Zedillo’s immunity even without the State Department recommendation.
This is an interesting case for those concerned with prevention of mass atrocities, as it raises the question, At what point does immunity become impunity?
Also in the news this week, the United States is refusing to extradite Bolivian ex-president Gonzalo Sánchez de Lozada to face charges of genocide and crimes against humanity. In October 2003, then-president Sánchez de Lozada ordered security forces to suppress popular protests against economic inequality. Sixty-seven men, women, and children were killed, and 400 injured, almost all of them poor and from the nation’s indigenous Aymara communities. Sánchez de Lozada fled to the United States, and has been living here ever since.
Writes Glenn Greenwald in The Guardian:
Bolivia then demanded his extradition from the US for him to stand trial. That demand, ironically, was made pursuant to an extradition treaty signed by Sánchez de Lozada himself with the US. Civil lawsuits have also been filed against him in the US on behalf of the surviving victims.
In the civil case against him, a U.S. appellate court ultimately ruled that Sánchez de Lozada was immune from damages or civil lawsuits, overturning a lower court ruling that there were sufficient allegations of genocide and war crimes against him to allow the suit to proceed.
The topic of immunity for heads of state, both sitting and former, is more widely debated than ever. As it should be. The question of how genocide, war crimes, and crimes against humanity can be legitimately seen as part of a head of a state’s “official duties” is one that must be answered.
This is the third in a series of blog posts by Auschwitz Institute interns who from October 2011 through March 2012 monitored countries for risk of genocide using the Analysis Framework of the United Nations Office of the Special Adviser on the Prevention of Genocide. This week we present the post by Yasmin Andrews, a graduate student in international relations at the University of St. Andrews, in Scotland. Yasmin monitored Zimbabwe for risk of crimes against humanity.
As a student of International Relations at the University of St. Andrews, I was no stranger to the study and analysis of violence, war and political conflict. However, this internship took on quite a different timbre than my university studies. I was chosen as one of the first set of interns to monitor states “at risk” of the occurrence of genocide. My country of interest was Zimbabwe, which is currently embroiled in a myriad of problems that render the state incredibly vulnerable.
As a Genocide Prevention Monitoring Intern for the Auschwitz Institute, I have had to be incredibly alert to the happenings within Zimbabwe. My work entailed observing events, news and current opinions within the country in relation to the potential for mass atrocities or crimes against humanity. The UN OSAPG (Office of the Special Adviser on the Prevention of Genocide) provided us with a Framework of Analysis establishing detailed guidelines on different factors that could indicate the potential for genocide within a society, including issues such as independent media, human rights protection, propaganda, increases in arms, and any increased involvement by other states.
Genocide is defined in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide (1948) as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; [and] forcibly transferring children of the group to another group.”
Through the training received from the OSAPG and the research conducted, it became very evident that genocide is not a spontaneous occurrence. The build-up in tension within a country, as well as the actual killing of its people, takes place over a period of time. It is targeted and planned and therefore not a spur-of-the-moment affair.
My partner Jeremy Garsha’s and my job differed slightly from that of the other monitoring interns, as mass atrocities and crimes against humanity are more likely to occur than genocide in Zimbabwe. However, the UN OSAPG framework was still utilized as an important guideline in our research. This difference in classification often results in blindness towards the threat of violence that is brewing within Zimbabwe’s borders.
Zimbabwe has a history of internal violence. The massacre that took place through Operation Gukurahundi in Matabeleland by the Fifth Brigade is widely termed as genocide. This 3500-strong group of ethnically Shona supporters of Mugabe killed approximately 20,000 villagers and tortured and assaulted countless others in January 1983. In addition to this history of violence and genocide, the current situation in Zimbabwe lends itself to monitoring. There is a lack of an independent judiciary, effective national human rights institutions and effective legislative protection. The government has failed to abolish oppressive legislation and has passed additional laws which are inimical to fundamental rights and freedoms, including the Non-Governmental Organizations Act, which looks to proscribe the work of human rights organizations.
Additionally, Zimbabwe’s power-sharing government, comprised of President Robert Mugabe and the Zimbabwe African National Union-Patriotic Front (ZANU-PF), have employed violence and tyranny to dominate government institutions and stem significant human rights advances. The Anglican Church in Zimbabwe has been under attack from the excommunicated bishop, Dr. Nolbert Kunonga, since 2007. He has been able to intimidate Anglicans and with the support of members of the police force, he has denied many of their right to worship by seizing property belonging to the church. Churches have been forced to shut down and many have been forced at gunpoint to attend ZANU-PF rallies.
Additionally, the precedent of political violence, intimidation and corruption set by the 2008 elections is a cause for concern with the nation’s upcoming elections. UNICEF has reported a rise in the use of child labor and the lack of investigations or arrests for these abuses. A large number of NGOs, which provide basic services such as food and assisting the disabled, have been banned. Torture and other ill treatment of activists by police and members of Zimbabwe’s intelligence services remain a serious and systemic human rights problem in Zimbabwe. An alarmingly high proportion of these violations have been perpetrated by youth. Amnesty International’s call for Zimbabwean authorities to cease manipulating the country’s laws to persecute activists has fallen on deaf ears. Partisans of the Mugabe regime continue to benefit from a lack of accountability for past crimes. For example, a member of the Central Intelligence Organization connected to the murder of two MDC activists 12 years ago has still not been indicted. The African Union is unwilling to intervene and expel President Mugabe despite its mandate to maintain good governance in its member states. These are a few pertinent examples of the significant threat to the capacity to prevent mass atrocities in Zimbabwe.
The term “genocide” is a powerful word that many shy away from and are afraid to consider. When using the UN OSAPG framework to examine the cases of genocide in the past, such as when the Interahamwe killed 800,000 Tutsis in Rwanda, the indicators are visible. It is clear that there is a need for proper and effective monitoring efforts to prevent such a crime from ever occurring again.
The Oxford Institute for Ethics, Law and Armed Conflict recently published a policy brief titled “Operationalizing the Responsibility to Prevent.” What sets this paper apart from others of its ilk is the fact that it directly addresses the prevention aspects of R2P. Most importantly, the authors use what they refer to as a “crimes” approach to prevention. Within this framework exist three distinct dimensions involved in the commission of an atrocity crime: a perpetrator, a victim, and a permissive environment or situation. However, it is cautioned that one not be too rigid when labeling perpetrators and victims, as these identities can become fluid within a conflict situation.
The authors of the brief assert that, “Of the four R2P crimes . . . the legal category of crimes against humanity represents the best characterization of what the principle of R2P was designed to halt or address. [. . .] Research shows that crimes against humanity do not occur randomly, but often reflect a complex interaction of different actors over a long period of time.” The three stages during which conditions escalate to the level of mass atrocity crimes are 1) risk factors, 2) crisis & mobilization, and 3) imminent emergency. Systemic strategies, which are applied to the first stage, “seek to mitigate risk factors and build resilience in a broader group of states, which exhibit some of the so-called root causes of mass atrocity crimes.” In contrast, targeted strategies, which are necessitated by the second and third stages, “are designed to change either the incentives or situation of those contemplating or planning mass atrocity crimes, as well as the vulnerability of potential victims; they seek to shift the consequences of a potential course of action in a particular context.” (See page 9 for a table of targeted prevention tools.)
Lastly, when discussing mass atrocity prevention and the prevention of armed conflict, the paper makes two points: First, R2P crimes often occur in the context of violent conflict and second, “root causes” of genocide are similar to root causes of conflict. Yet it cannot be assumed that endeavoring to prevent, or even bring about an end to, conflict will necessarily reduce the potentiality of mass atrocity crimes. This is because
- While a large majority of mass killings since 1945 occurred within the context of armed conflict, at least a third of the cases did not.
- Some instances of mass atrocities occur under the “cover” of armed conflict, but are not directly linked to either the causes of that conflict or the conduct of the war itself.
- While strategies to prevent or resolve conflict tend to be aimed at eliminating or avoiding violence and the use of force, the prevention of mass atrocities—particularly at a late or imminent stage—may require military means.
- Armed conflict is regulated but not forbidden by international law, whereas mass atrocities are outlawed as crimes.
As such, it remains necessary to justify the need to act preventively and build generic capacity for prevention.
In fall 2011, the Auschwitz Institute launched the pilot run of a Genocide Prevention Monitoring Internship, operated in partnership with the Office of the United Nations Special Adviser on the Prevention of Genocide (OSAPG). The purpose was to offer interns
practical experience in assessing the risk of genocide and other mass atrocity crimes within a single country, while providing the OSAPG with information the Special Adviser can use in his mission to “act as a catalyst to raise awareness of the causes and dynamics of genocide, to alert relevant actors where there is a risk of genocide, and to advocate and mobilize for appropriate action.”
Interns received training on how to assess risk using the OSAPG’s Analysis Framework and submitted reports to the Auschwitz Institute on a monthly basis from (roughly) October 2011 through March 2012. Four countries were selected for monitoring: Bahrain, Indonesia, Liberia, and Zimbabwe. Initially, the plan was to have one intern for each country, but owing to the degree of interest and qualifications on the part of our applicants, for some countries we assigned two monitors.
Now, having concluded the internship’s pilot run, we are evaluating the usefulness of the project, to the interns, to our own work, and to the OSAPG. To that end, we asked each of the interns to write a blog post about their experience, answering two questions: 1) What did you learn about genocide prevention? 2) What did you learn about the risk(s) of genocide in the country you were monitoring?
This week we present the post by Jeremy Garsha, a graduate student in history at San Francisco State University. Jeremy monitored Zimbabwe—not for genocide, but for the broader category of crimes against humanity.
As a monitoring intern for the Auschwitz Institute, the most important lesson I learned was that genocide is not an event, but a process. Being a graduate student of comparative genocide, this is a notion I have been taught, but one I quickly forget. By training I am a historian. I investigate past genocides, where all of the pieces have already played out. It is easy to forget that each moment of human rights violations, left unchecked, has the potential to spiral into the systematic killing of individuals based on their identity. When examining historical episodes of genocide from a present point of view, each event often seems inevitable and intentional. Yet, as scholars and citizens of an international community, we must always remember that genocide can and must be prevented at the very inception of exclusionary ideology and basic human rights violations. If genocide is a process, then it can be prevented at many moments, so long as we have the vigilance and courage to act.
I was privileged enough to work with the Auschwitz Institute, an organization dedicated to preventing conflicts before they escalate into atrocities and genocide. Under their guidance, I had the opportunity to monitor Zimbabwe, a country more at risk for crimes against humanity than genocide. By broadening our search to include not only the legal definition of “genocide” as defined in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide (1948), but also all of the illegal acts listed in Article 7 of the Rome Statute of the International Criminal Court (2002), my research partner, Yasmin Andrews, and I were able to investigate and monitor a myriad of sources and antecedents that had the potential to become systematic criminal acts. Zimbabwe provided me with a real-world example of why it is important not to become blinded when looking specifically for genocide threats, as many human rights violations do not fit within the parameters of the “national, ethnical, racial, or religious groups” found within the Genocide Convention. When using a broader definition of “crimes against humanity,” however, it became clear that prevention monitoring of Zimbabwe is of prime importance.
Zimbabwe has a history of genocide: 20,000 Matabele citizens were mass murdered by the exclusively Shona Fifth Brigade in 1983–84, in what was called the Gukurahundi (a Shona term meaning “the early rain that washes away the husk before the spring rains”). Zimbabwe also has a recent history of political violence following the disputed election results of 2008, which set up a power-sharing deal between President Robert Mugabe and the Zimbabwe African National Union-Patriotic Front (ZANU-PF), and Prime Minister Morgan Tsvangirai and the Movement for Democratic Change (MDC). The past episodes of violence, as well Zimbabwe’s decimated economy, has also caused tens of thousands of refugees to flee into neighboring southern African nations. Lacking effective judicial oversight, Zimbabwean government and state security forces operate in a system of impunity. There exists the threat of renewed violence following next year’s scheduled elections, as well as the failing health of 88-year-old Mugabe, who has been in power for over 30 years. The above factors, to name but a few, underscore the necessity of proper and effective monitoring efforts.
A genocide prevention monitor working out of his home in San Francisco is not a replacement for United Nations–backed monitors on the ground. It is, however, a useful and safe alternative when it is not possible to place UN-trained observers in every country that is at risk of genocide. In a globalized world, independent news sources provide an amazing amount of information, and it is remarkable how much can be gleaned by having an individual tasked with gathering and filtering these streams of media. As monitoring interns, our task was to collect, not analyze data. Reading reports on Zimbabwe from across the globe left me with one final realization during my six-month internship, our shared connection of humanity.
I have always had an academic interest in Zimbabwe and southern African history, but working as a genocide prevention monitor reminded me that there is no shortage of information in the digital age. Anyone with an Internet connection can instantaneously plug into world events. With this connection comes the responsibility to take action when human rights anywhere are threatened. In Zimbabwe there is the concept of unhu, a variation of the Zulu term ubuntu, popular in southern Africa, which refers to the notion that one’s humanity is created and nurtured because of its shared connection to others. Crimes against humanity are just that, crimes that violate our shared understanding and connection to humanity. Genocide in one particular region affects us all, and we are all tasked with the responsibility to prevent future human rights violations from escalating into mass atrocities.
Ahmed Harun, governor of the Sudanese state of South Kordofan, has been caught on film giving orders to the Sudanese army that may be interpreted as encouraging troops to commit war crimes against rebels.
In the video, published by Al Jazeera yesterday, Harun, who has already been indicted by the ICC for crimes against humanity in Darfur, instructs his soldiers to “take no prisoners” in a speech delivered just before his soldiers enter rebel territory.
Says Harun: “You must hand over the place clean. Swept, rubbed, crushed. Don’t bring them back alive. We have no space for them.”
According to United to End Genocide, civilians in South Kordofan are not only in immediate danger of suffering direct, undifferentiated violence simply by virtue of living there, but are also in danger of starvation due to the ongoing conflict’s interference with adequate farming and the delivery of food aid.
ICC Chief Prosecutor Luis Moreno-Ocampo called for Harun’s arrest, saying: “A commander has a responsibility to ensure that his troops are not violating the law. He cannot encourage them to commit crimes. ‘Take no prisoners’ means a crime against humanity or a war crime, because if the prisoner was a combatant it is a war crime and if the prisoner was a civilian it’s a crime against humanity.”
Advocate Eric Reeves, who has written extensively about Khartoum’s aerial military attacks on civilians throughout Sudan, recently wrote an article for the Sudan Tribune calling for pressure on Khartoum to accept the multilateral humanitarian access proposal put forth jointly by the African Union, the Arab League, and the United Nations.
On March 29, the U.S. Senate unanimously passed a resolution urging the government of Sudan to allow immediate and unrestricted humanitarian access to, among other regions, South Kordofan and Blue Nile. The resolution also encourages the two Sudans to cease hostilities, return to negotiations, and allow any peaceful civilians in the area to voluntarily leave and take refuge somewhere safer.
The United Nations University Institute for Sustainability and Peace (UNU-ISP) is currently undertaking a project that examines the relationship between the Responsibility to Protect (R2P) and the Protection of Civilians (PoC) in armed conflict situations. UNU-ISP co-organized and participated in three academic–practitioner workshops in 2011, held in Manila, Kuala Lumpur and Jakarta. Through dialogue and discussion, critical feedback was gathered to refine the handbook for protection actors. The handbook was presented to the UN Secretariat in New York last month, and further disseminated to policymakers and officials of member states.
Having coined the phrase Protection of Civilians, the Fourth Geneva Convention has become its firm international legal establishment. According to Dr. Vesselin Popovski of the UNU-ISP, after the world failed to protect the civilian Kosovo Albanians “from ethnic cleansing in 1998-99 — followed by controversial unauthorized military intervention by NATO in March 1999, an International Commission on Intervention and State Sovereignty (ICISS) was formed.” It was through an ICISS debate on humanitarian intervention that R2P was ultimately formulated and “became a worldwide shared emerging norm in 2005 when almost 150 world leaders — the biggest ever gathering of Heads of State in history — adopted the document “World Summit Outcome.”
PoC and R2P are alike in that they are both concerned with civilian suffering and mass human-induced violence. In order for the R2P threshold to be met, atrocity crimes–genocide, war crimes, and crimes against humanity–must be planned and systematic. PoC, on the other hand, is only applicable in situations of armed conflict. Dr. Popovski writes,
To summarize: in many situations, the two circles of R2P and POC can overlap — for example, when war crimes against civilians or crimes against humanity (including ethnic cleansing and genocide) are committed during armed conflict. A situation that would fall under POC, but not R2P, is the protection of civilians threatened by escalating armed conflict if mass atrocities are not planned and committed. And a situation that would trigger R2P, but not POC, is a threat from mass atrocities planned outside an armed conflict.
Moreover, situations may start out otherwise but later metastasize into an armed conflict, thus raising demands for PoC. To further differentiate the two concepts, R2P is a matter for States only, but PoC can be obligatory for non-State actors. As mentioned above, R2P and PoC share similar humanitarian concerns, “yet their specificity is important. R2P…does not undermine; rather, it serves as a catalyst for action — it can mobilize political will and complement the PoC agenda.”