Legal liability?

Arbour predominantly rests her argument on Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 (the Genocide Convention). This is the article which confirms ‘that genocide, whether committed in time of peace or in time of war, is a crime under international law’ and that signatories to the Convention will ‘undertake to prevent and to punish’. Arbour's emphasis is on this last point, noting that this is ‘an undisputed obligation of international law’.Footnote ³ This is combined with the decision in the Bosnian Genocide Case to provide an argument that there has emerged an international legal ‘duty of care’ when it comes to stopping the crimes outlined in R2P. For Arbour, the judgement which found that Serbia and Montenegro had failed in its obligation to prevent Genocide in neighbouring Bosnia, has strong implications for all states:

She continues this line of reasoning regarding the responsibilities of the great powers of the Security Council:

There are three problems with this line of reasoning. First, The International Court of Justice's decision in the Bosnian Genocide Case indicated that responsibility for the failure to prevent genocide only exists if genocide (or any of the activities outlined in Article III of the Convention) actually occurs.Footnote ⁶ This is relatively straightforward; it would be bizarre to prosecute a country for failure to prevent an action which never happens. But given the difficulty of actually recognising the occurrence of genocide as defined in international law, this also seems highly problematic. That ICJ judges recently rejected Prosecutor Luis Moreno Ocampo's argument to charge Sudanese President Omar al-Bashir with genocide because there was not enough evidence is a good example of this.Footnote ⁷ The crime of genocide requires proof of a special intent (dolus specialis) whereby the crimes committed must be done with the intent ‘to destroy, in whole or in part, a national, ethnical, racial or religious group’. Without evidence of this special intent, genocide, by definition, cannot be said to be taking place. Bashir is, of course, accused of other international crimes, but, significantly, there seems to be a serious problem with Arbour's argument if the starting point for her obligation is frequently difficult and sometimes impossible to apply given its tricky definition.

To be clear, this is not to imply that the declaration of genocide must be ex post facto. The ICJ found that the plausible risk of genocide was sufficient to trigger a duty to prevent.Footnote ⁸ However, this does not take away from the fact that the risk must actually be ‘real’ (as far as risks can be). Yet the Court did not really indicate as to how such a determination was to be made or which criteria were to be used. The judgment does say that the Serbian government ‘could hardly have been unaware of the serious risk’ of genocide, and refers to facts that certain government officials likely knew that certain actions were going be taken as evidence.Footnote ⁹ Whether or not this constitutes a legal standard is not clear – or if it does, it remains a vague one. Therefore, the contention here is that the fundamental problem of determining the risk or existence of a genocide in order to trigger an international legal obligation to prevent largely remains.

Secondly, the ICJ recognised that the Genocide Convention is not the only legal instrument which creates a legal obligation for an activity for states to prevent. Rather, there are similar obligations for states to take measures against torture, harm against internationally protected persons and terrorism.Footnote ¹⁰ However, the Court limited its judgement in an important ways that Arbour does not seem to acknowledge. The Court was clear that it did not ‘purport to establish a general jurisprudence applicable to all cases where a treaty instrument, or other binding legal norm, includes an obligation for States to prevent certain acts.’ Additionally, the Court refrained from finding that ‘apart from the texts applicable to specific fields, there is a general obligation on States to prevent the commission by other persons or entities of acts contrary to certain norms of general international law.’ Therefore, the Court confined itself to making its determination in the Bosnian Genocide Case to ‘the specific scope of the duty to prevent in the Genocide Convention’. The application of the decision to create a legal principle of R2P seems contrary to the Court's pronouncement.Footnote ¹¹

Consequently, the level of precedent-setting for this decision, at least in the way that Arbour wants to use it, is very questionable. In fact, it is very strange that she relies on the judgement so heavily after such a warning by the Court was given. That international lawyers are often creative in their uses of the law or in their interpretations is one thing, but in this case, the Court seems rather clear about its intention and on the limitations of its judgement. While it is, perhaps, indicative of the kinds of findings the ICJ or other international criminal tribunals may produce in the future, Arbour should have been clearer about the Court's position on the uses of the judgement and her intention in invoking the decision as a basis of her claims.

Finally, and this is, perhaps, the most straightforward critique, is that while there can be little doubt that the Convention states that parties undertake to prevent genocide, the guidance as to what exactly ‘prevent’ means is not particularly useful. The Convention states that any contracting party may ‘call upon the competent organs of the UN to take such action under the Charter of the UN as they consider appropriate.’Footnote ¹² In other words, ‘prevention’ in the Convention is understood as bringing the matter back to the UN Security Council and General Assembly – the very problematic (or at least ineffective) forums which R2P advocates are seemingly trying to cajole into action. This is even more so in highly politicised cases which may divide the international community.

Additionally, there is no guidance as to who should make a determination that genocide is to take place, who should prevent it and what kind of international approval they would need. As Arbour points out, the Court did offer some guidance on these issues – but essentially this amounts to vague calculations of an obligation arising ‘at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.’Footnote ¹³ As for who should do the intervening, the Court in the Bosnian Genocide Case suggests a fuzzy combination of factors comprising a ‘capacity to influence’ made up of geographical proximity, political links, ‘as well as links of all other kinds, between the authorities of that State and the main actors in the events’.Footnote ¹⁴ Despite Arbour's assertions, the reality is that this list is not very specific and not very helpful. Certainly none of this seems to constitute a clear, direct nor novel legal standard.

The hard part

But this brings us to the second major critique of Arbour's argument – that even if a legal obligation could be established, the model that Arbour suggests is not helpful because such an obligation could not truly provide any guidance on the ‘tough’ questions about R2P. Just some of these questions include exactly who may intervene, under what kind of mandate, for how long and where – questions which have plagued debates over humanitarian intervention for decades. Can international law really help us answer them?

Two points may be raised here which suggest not. First, it is one thing to establish a law, principle or even a norm – it is quite another to change practices. As the saying has it, ‘old habits die hard’ – and this is also true for international bodies like the UN. As Alex J. Bellamy (a strong R2P advocate) writes, even when the international community is armed with criteria:

If we have learned anything about international law in the last 20 years, if not the last century, it is that its existence rarely delivers consensus.

Yet, for the sake of argument (and the second point), let us assume that Arbour's case for the establishment of a ‘duty of care’ is broadly accepted by the international community. Other than establishing this liability, what else does Arbour's argument help us decide about R2P? The answer is not much. Of course establishing that states now have a burden to ‘take action under the doctrine of responsibility to protect’Footnote ¹⁶ might be a small step forward, but other than this, it does not help international society answer the really difficult questions concerning the commitment required of states or over authorisation and participation.

Bellamy suggests that there are at least four major problems with prevention in terms of R2P: (1) it is difficult to discern measures which are directed specifically at preventing the international crimes listed by R2P (genocide, war crimes, crimes against humanity and ethnic cleansing) and those which relate more broadly to conflict prevention more generally; (2) there is an absence of limits on what exactly constitutes prevention (which may make states reluctant to commit themselves); (3) do preventative measures lead to additional encroachments on sovereignty; and (4) who should do the prevention work? As it stands the doctrine is unclear as to what sorts of agencies should take the lead.Footnote ¹⁷

The establishment of a duty of care under a doctrine of R2P does not help establish answers to these questions. While the decision in the Bosnian Genocide Case does provide some rough guidance (as discussed above), this is of much less use and direction than Arbour implies. Bellamy suggests that part of the problem is that the understanding of ‘prevention’ in the 2001 R2P report issued by the International Commission on Intervention and State Sovereignty (ICISS) was concerned with internal wars more generally as well as other man-made crises compared to the rather narrow international criminal focus in the 2005 World Summit outcome document.Footnote ¹⁸ The prevention requirements of the former understanding of R2P would, out of necessity, require a much wider focus, but whether this could be said for genocide, war crimes, ethnic cleansing, etc., is questionable.

This is not to say that the Court's judgment rendered the understanding of Article 1 of the Genocide Convention less clear or more confusing. Rather, it is to suggest that the Court's judgment may be significantly less novel and important that what Arbour is suggesting in her argument. If R2P is to become some sort of basis for international action or transformed into a legal principle, (based on Arbour's reading of the Judgment in Bosnia vs. Serbia) the questions outlined above are the ones that international lawyers will still have to wrangle with. In this way, Arbour's obligation seems to be little more than papering over a giant chasm of disagreements between R2P stakeholders. With all of the right intentions, it is still a roadmap to nowhere that gets us only a little past the first of many, many intersections.

Realistic R2P?

Answers, or compromise solutions, to these difficult questions will probably not be worked out in law so much as they will be determined through negotiations at various international organisations. This is something I am sure Arbour is aware of. Yet, a third line of critique which can be raised against her assertions is that Arbour is, at the very least, ignoring certain facts of world politics to the great detriment of her argument. At the end of the day the effective realisation of her legal thought-experiment entails a remaking of the world order. If nothing else, it would require a further revolution in the notion of state sovereignty – certainly beyond that which the Non-Aligned Movement and certain great powers like the US would be comfortable with.Footnote ¹⁹ There can be no question that R2P is a revolution in the notion of ‘sovereignty’, but translating this into a legally enforceable responsibility is, politically speaking, taking R2P to a whole new level. Whether such a revolution could be brought about in the present day and age by a group of lawyers and R2P advocates is highly suspect. Certainly a fairly small group of diplomats, politicians, international bureaucrats and activists were highly successful in getting the issue on the agenda at the 2005 World Summit. However, the long and arduous process of negotiation process required to get a very slimmed down version of R2P (derisively or depressingly referred to as ‘R2P Lite’) in the World Summit Outcome document as well as certain scepticism over the concept suggests that, at least for now, there are limits as to how far the doctrine can go. As Gareth Evans has written, by 2008 the Latin American, Arab and African delegates to the UN's budget committee flatly denied that R2P was even ever adopted by the General Assembly.Footnote ²⁰

Is it then fair to speak of a ‘responsibility to reality’? Reality is, of course, subjective and notoriously hard to judge. However, what does seem to be very clear is the fact that R2P advocates are going to have to work within a political system to achieve their goals rather than creating contrived legal obligations through stringing together vague and unenforceable laws and/or case law. It is very much a political system that allows for much scepticism, obstruction and provides for a lot of frustration. Yet, that some lawyers, like Arbour, often seem to want to leap over this international political system through asserting a supposedly neutral law is not, in the end, helping their cause. Additionally, it is not helping to solve the larger problems posed by the issues of sovereignty and intervention in the 21st Century. After its adoption by the World Summit in 2005 and the Security Council (Resolution 1674) in 2006, it is fair to say that R2P is an emerging principle in international society. Even better, it may yet work in creating a common language in which action may be debated and plans to help solve some of the world's worst problems may be asserted. R2P may actually work – but it is difficult to imagine that it will work in such a way as to effectively trap states into obligations into which they have not given their consent.

During the negotiation process leading up to the World Summit, the US consistently resisted the argument that the international obligation to protect was on the same level as the domestic duty of states. The notion that the Security Council could also be legally obliged to intervene was also criticised with then-US Ambassador to the UN John Bolton asserting that there needed to be the freedom to decide on courses of action on a case-by-case basis:

If, as Bellamy suggests, the problem with humanitarian intervention is one of willingness rather than ability or even obligation to do so, asserting that a legal duty of care exists will accomplish little. The problem of ‘will’ should be understood as a problem of politics and not a problem of law.