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Responsibility to Protect & The Rohingya Genocide: The Latest Liberal Failure?

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Sabina Grigore

Sabina Grigore

Just Access Representative to the UN Office on Drugs and Crime

‘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 of human rights that offend every precept of our common humanity?’

-Kofi Annan, UN General Assembly 2000

Following a grim decade of global powerlessness in which the international community has witnessed a surge in ethnic hatred and genocidal acts, in 2005 the World Summit attempted to finally find an answer to Kofi Annan’s aforementioned question. The international community has agreed that there was only one acceptable way to protect international peace and security, which were particularly threatened by mass atrocities in the form of crimes against humanity, war crimes, and ethnic cleansing – the last of which, in some catastrophic cases, culminated in genocide. Trying to strike a balance between humanitarian intervention and the sovereignty of the nations, while protecting populations from mass atrocities in the most effective manner, the world conceded to the genesis of the so-called Responsibility to Protect (R2P) doctrine.i This doctrine implies that if a state is unwilling or unable to protect its populations against mass atrocities, even with the help and encouragement of the international community, then the international community must take collective action in order to protect the population of the failing state. Collective action can take the form of coercive measures, and, most controversially, military intervention, if authorized by the United Nations (UN) Security Council.ii

R2P has been a very controversial topic in academia. With a sense of discouragement and defeat in their discourse, some scholars consider it “the latest, if not the last, great liberal idea dedicated to fixing major humanitarian problems in the world”.iii Gruesome atrocities have not stopped happening since R2P has been introduced to the international community, and seventeen years after the world leaders have agreed to the genesis of this doctrine, there has been only one instance in which it has been somewhat successfully invoked – the First Libyan Civil War in 2011. Nonetheless, there is still a dire need to make sure that the promise ‘never again’ is fulfilled, as for instance the purported current genocide of the Rohingya in Myanmar spotlights. In that regard, the field of critical legal studies has most significantly contributed to the condemnation of the liberal view of international law, challenging its alleged objectivity and effectiveness.iv As such, this blog post will address the effectiveness of R2P through the lens of critical legal studies as approached by Martti Koskenniemi, one of the most prominent legal scholars in this field.v First, a brief historic account of the most notorious humanitarian interventions will be provided, with particular attention being paid to the liberal tenets of international law: the use of force and the doctrine of state sovereignty. Using Koskenniemi’s analysis, this blog post aims to explain how these concepts can be curbed under certain circumstances. Thereby, the compatibility between these concepts will be addressed. Then, this essay will analyze the implementation of R2P in the years since its establishment. Lastly, Koskenniemi’s criticism of the liberal approach to international law will be applied to R2P with the aim of providing a deeper understanding with respect to a potential implementation of R2P in the case of the Rohingya genocide in Myanmar, currently poorly addressed by the international community. In sum, the thesis of this essay is that the liberal view over international law that shaped the perceptions of the international community in this matter and created R2P is principally responsible for the incapability to adequately respond to the unspeakable crimes that the Rohingya community continues to face in Myanmar. Nonetheless, the urgency to respond to mass atrocities is as present as ever, and humanity as a whole still bears full responsibility to find an appropriate answer to Kofi Annan’s question.

Humanitarian Intervention: A Short History

In 1992, famine and internal chaos were characteristic of the situation in Somalia. President Bush sent, at that time, United States military troops on a humanitarian mission. The failed attempt to catch the warlord and his lieutenants resulted in a tremendous number of civilian casualties in Mogadishu. This event is of exceptional importance for the future course of interventions in the world. Fearing the same disastrous results, the United States avoided future interventions as much as possible. As one of the world’s superpowers, its decisions influenced also the course of action of the major international organizations, particularly the United Nations and NATO. As a result, there was no intervention in Rwanda, and extremely late commitment of troops in Kosovo and Bosnia, which only took place once gruesome human rights violations were conducted.vi 9/11 served as a catalyst for reconnecting interventions abroad with the national interest. Following the war on terror, America also re-established its pursuit of humanitarian interventions. This was the case for instance in Libya, where R2P was first applied with the scope of preventing violence from breaking out and spilling over into the region.vii

Some of the supporters of non-intervention claim that any form of humanitarian intervention is incompatible with the doctrine of state sovereignty, as it implies the use of force against a foreign territory. In the orthodox perception of international law, sovereignty is one of the absolute rights of states. This right includes full jurisdiction over one’s own territory and \permanent population, the right to self-defense, and also the duty not to intervene in the relations of other sovereign states, which is considered to provide stability in the universal legal order.viii Humanitarian interventions, especially when they involve military action, have been previously assessed as a violation of state sovereignty. Accordingly, the use of armed force is strictly forbidden under customary international law. The UN Charter states in Article 2(4) that “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”.ix These purposes of the United Nations have largely been interpreted as the maintenance of international peace and security. In sum, all these considerations have unfortunately led to a doctrine of non-intervention that allowed, for example, for the genocide in Rwanda.x A lack of consensus in this matter has led, for instance, to the controversy surrounding the humanitarian intervention in Kosovo, in 1999. There, motivated by the large-scale atrocities, NATO decided to initiate an airstrike without the authorization of the UN Security Council.xi This intervention has been considered by the Independent International Commission on Kosovo as illegal but legitimate-illegal as it did not have the approval of the Security Council, but legitimate to preserve and protect human lives when no other option was available.xii

Koskenniemi argues that, despite the importance of territorial sovereignty for the notion of statehood in the dominant liberal understanding of international law, this concept is often curbed in order to balance competing interests whenever conflicts arise. Thus, the claim to objectivity that international law has is tainted by political influences.xiii Although Koskenniemi never addresses the concept of humanitarian intervention, as the concept was not too present in the realm of international law at the time of his publication, his criticism can be expanded to the way international law has denied humanitarian intervention on behalf of the protection of state sovereignty. As important as the sovereignty of a state is, certain conduct can be deemed as so unacceptable that domestic jurisdiction can be overridden since the matter is of concern to all. For this reason, erga omnes obligations have arisen. This means that acts of genocide, slavery, aggression, or racial discrimination are not allowed to occur under any circumstance.xiv As a result, academics have dedicated considerable efforts in order to expand the understanding of state sovereignty, reaching the conclusion that the doctrine of absolute non-interference is not compatible with the observed state behavior. Concomitantly, while humanitarian interventions might alter the orthodox understanding of sovereignty, it is believed that they do not destroy it, and, as such, they are not unreconcilable.xv This line of reasoning can also be identified in the framing of R2P. The third pillar that allows for military intervention with humanitarian purposes emphasizes that military intervention is a measure of last resort, allowed only when large-scale human suffering is taking place in a foreign country, and if all other non-military options have been exhausted.xvi All in all, despite initial reluctance towards the de-liberalization of international law that came as a result of the alteration of the sovereignty doctrine, the World Summit from 2005 accepted that there is a collective obligation to address atrocities beyond one’s own borders.xvii

The First Libyan Civil War: R2P in Action

As Koskenniemi points out, “any legal rule, principle or world order project will only seem acceptable when stated in an abstract and formal fashion”.xviii This is well reflected in the case of R2P. Despite general agreement over the importance of R2P, there has been significant disagreement in terms of the implementation of this concept. The 2011 Civil War in Libya is the first and only case where R2P was officially invoked for a military intervention. There, the humanitarian crisis caused by Muammar Gaddafi’s threats to the population led to escalating fears of a potential genocide was used as a justification for a quick response on the side of the Security Council. The intervention had the broader scope of preventing violence from breaking out and spilling over into the region. Regardless of the initial good intention to protect the Libyan population, NATO wound up eventually bombing the civilian population. Moreover, post-Gaddafi Libya has been abandoned by the international community and is currently fighting for its survival. The post-Libya global situation was marked by the reluctance to intervene in Syria and Yemen, which posed similar humanitarian concerns. The failure to act appropriately in Libya, as well as non-intervention in other dire circumstances, have endangered the general embracement of the R2P doctrine.xix

Critiques of R2P argue that R2P was made only to intervene in weak states, as was the case of Libya, while the giants are getting away with the crimes that they commit. The deadlock that the Security Council faced in the decision to apply R2P in Syria, with China and Russia opposing intervention in order to protect their own national interests has reduced the importance of the notion of R2P.xx Even one of R2P’s greatest supporters, Gareth Evans, who was a co-chair of the International Commission on Intervention and State Sovereignty that introduced the concept of R2P concedes to the fact that, despite a global as well as institutional acceptance, the hostility present among the permanent members of the Security Council poses a great challenge to the implementation of this concept, leaving it with a ‘work in progress’ status.xxi Eleven years since Libya, the international community has not managed to strike a balance between competing interests, despite an impending need to help suffering communities all over the world. Creating R2P as exclusively reliant on the approval of the Security Council in circumstances that would imply a need for military intervention is contradictory to the liberal claim that international law needs to be objective and apolitical. While the idea that international law is made of equal sovereign states submitted to the rule of law is a fundamental precept of the liberal theory of international law, R2P proves that not only that is not reflective of the surrounding reality, as the case of Libya has proven, but it also clearly proves Koskenniemi’s argument that social conflict can only be solved through political means.xxii As the tensions in the Security Council show, politics cannot be escaped in the implementation of international law, even though that comes at the cost of unimaginable loss of human life characteristic for situations that would require the implementation of R2P. Thus, Koskenniemi’s case for further de-liberalization of international law still stands.

R2P in Myanmar: Liberalism’s Failure?

The deadlock present at the level of the UN Security Council endangers the survival of minorities all over the world. Hence, not much has happened at a collective international since Russia and China vetoed a draft resolution on Myanmar in 2007 on the grounds that the repression of the Rohingya community is not a threat to international peace and security.xxiii The Rohingya are a Muslim minority in a state that has a Buddhist majority. The population in Myanmar generally sees the Rohingya as racially distinct, and they can also be considered an ethnic group because their historical development and cultural identity also differ from the general population.xxiv Since 1989, there has been ongoing violence against Rohingya, persecuted based on their religious beliefs. Myanmar is accused of extrajudicial killings, torture, arbitrary detention, forced disappearances, intimidation, systemic destruction of mosques, to name just a few. In 2012, the Burmese military confined many Rohingyas in enclosed camps and forbade them to leave without authorization. Since October 2016 the Myanmar military and other Myanmar security forces began widespread and systematic clearance operations, which led to the state being accused of harboring a clear genocidal intent.xxv Despite the recommendations of the Human Rights Council that “the Myanmar military should be investigated and prosecuted in an international criminal tribunal for genocide, crimes against humanity and war crimes”,xxvi the single most significant effort to address the problem was conducted by The Gambia that launched a case against Myanmar in 2019.xxvii Normally, all parties to the Genocide Convention have the legal obligation to prevent and punish genocide. The least that the states can do is to issue public statements indicative of their condemnation of the alleged genocide. Aside from The Gambia, clear support for the efforts to protect the Rohingya community has been shown by The Netherlands, Canada, the Republic of Maldives,xxviii and, most recently, by the United Statesxxix and the United Kingdom.xxx Most recently, survivors of the abuses lodged a complaint for the investigation of war crimes and genocide in Germany, due to its laws regarding universal jurisdiction.xxxi Nevertheless, the abuses are still ongoing while the rest of the world remains silent.

‘Never Again’ is overwhelmed by ‘History repeats itself’. During the Rwandan genocide, when a reporter asked the U.S. State Department Spokeswomen about whether she has specific guidance not to use the term ‘genocide’ without prefacing it with ‘acts of’, she responded that she has definitions and formulations that they “are trying to be consistent in the use of”.xxxii Saying that genocide is happening to the Rohingya people implies the need to take action. However, as previously explained, there is never consensus regarding what action is best to be taken. As Koskenniemi notes, any legal argument is “constrained by a rigorously formal language” in its attempt to reach objectivity.xxxiii This liberal desire to protect legal discourse from political discourse, though, comes at the cost of human lives. Aside from the tacit denial of genocide, larger political interests that the big players like USA and China have in Myanmar seem to overthrow any humanitarian concerns. China’s growing influence in the region, as well as the internal allegation of genocide against the Uyghurs significantly diminish the chances of implementing an arms embargo or sanctioning those responsible for the mass atrocities in Myanmar.xxxiv Thus, while Evans lists The Gambia’s efforts to condemn Myanmar as a success of R2P, there is still a lot that can be done, for instance pressuring the Myanmar government to stop the mass atrocities that they are conducting and urging for the restoration of Rohingya’s access to human rights.xxxv Nonetheless, what is certain is that the well-established reluctance of the Security Council to act upon the mass atrocities has encouraged the military to take even more drastic action against the Rohingya, increasing their suffering as time goes by.xxxvi

Whilst those who defend R2P claim that the success of R2P should not be measured by whether or not a military intervention took place,xxxvii a clear sign of R2P’s inadequacy is the number of times a military intervention could have taken place, but it did not out of political reasons. The insufficient response to human suffering that the international community has had up until the present has cleared the path towards effortless abuses conducted against innocent individuals. As difficult as assessing the efficiency of R2P might be due to the complexity of factors involved in the process, the amount of time spent to pursue political debates and protect certain national interests initiates a tacit legitimization of the oppression of ethnic minorities all over the world. While keeping R2P alive for the good intentions that have shaped the concept might seem desirable to certain scholars,xxxviii the reality today is that the third pillar that formed the basis of this principle has collapsed beyond expeditious repair. Putin’s war on Ukraine and China’s squeamish response to these events point towards a radical schism in the UN Security Council. Notwithstanding, people in all parts of the world would greatly benefit from adequate and timely responses in times of great emergency, as is the case with genocides, without suffering from the veto power of the mighty world leaders.

Conclusion

Using force is always frowned upon in the international community. Nonetheless, it happens every day. State sovereignty, too, has been placed in the center of the orthodox perception of international law. Nonetheless, the rules can always be bent when circumstances allow for it. As objective as international law is trying to remain, politics clearly plays a role in shaping it. International law is not made by equal sovereign states, and it does not apply equally to all, despite the dominant liberal perspective on the matter. Responsibility to Protect has emerged out of the need to reassure the international community that Srebrenica and Rwanda will not happen again. Although R2P seemed to be the answer to Kofi Annan’s question posed to the General Assembly of the UN, the last seventeen years since its genesis have proven to be a great unsuccess in protecting vulnerable populations. Not only have genocides have been occurring, as is the case with the Uyghurs and the Rohingya at the moment, but also R2P has been proven ineffective even when applied in its entirety, as was the case in Libya in 2011.

Performing only one intervention in the name of R2P, which ended up having disastrous consequences for the Libyan civilian population, and cherry-picking places to intervene based on how opposed China and Russia have been to the intervention, have ultimately not led to any effective measures that would contribute to fulfilling the ‘never again’ promise. Crippled by the collapse of its already unstable third pillar, R2P has probably reached its end before it even got to see the light. As such, humanity’s last liberal-utopian dream can no longer be deemed as an option to cure the suffering of the Rohingya, as nothing that can be done under R2P is perceived as sufficient to prevent atrocities or protect civilians from these atrocities.xxxix The Myanmar military does not only have no incentive to end the oppression, but the current structure of R2P allows them to spread their abuse indefinitely. Overall, Koskenniemi’s criticism of the disproportionate liberal nature of international law is more current than ever, as its effects can be felt most intensely by the innocent. Thus, R2P urgently needs to be replaced with a more efficient alternative so that the lessons from Rwanda that motivated the creation of R2P are not just observed but also learned.

 

 

i Evans Gareth, ‘R2P: The dream and the reality’ (Global R2P, 26 November 2020)

<https://www.globalr2p.org/publications/r2p-the-dream-and-the-reality/> accessed 22 February 2022.

ii Gärtner Heinz. ‘The Responsibility to Protect (R2P) and Libya.’ (2011) ÖIIP 8.

iii Naruzzaman Mohammed, ‘Revisiting ‘Responsibility to Protect’ after Libya and Syria’ (E-International Relations, 8 March 2014) <https://www.e-ir.info/2014/03/08/revisiting-responsibility-to-protect-after-libya-and-syria/> accessed 22 February 2022.

iv Bianchi, Andrea. International law theories: An inquiry into different ways of thinking (1st ed, OUP 2016).

v Koskenniemi, Martti. The politics of international law. Bloomsbury Publishing, 2011.

vi Kaufman, Joyce. A Concise History of U.S. Foreign Policy. (4th edition, Rowman & Littlefield, 2017).

vii Hastedt, Glenn. American Foreign Policy: Past, Present and Future. (12th edition, Rowman & Littlefield, 2020).

viii Shaw, Malcolm N. International law. (8th edition, CUP, 2017).

ix United Nations, Charter of the United Nations, 1945, 1 UNTS XVI, Article 2(4).

x Kassner, Joshua. The Moral Obligation to Intervene in Rwanda. (2014).

xi Naruzzaman (n 3).

xii The Independent International Commission on Kosovo. The Kosovo Report. (OUP, 23 October 2000).

xiii Koskenniemi (n 5).

xiv Evans, Malcolm David, International law. (4th edition, OUP, 2014).

xv Keely, Charles B. Humanitarian intervention and sovereignty: mit deutscher Zusammenfassung. (Konrad- Adenauer-Stiftung, 1995).

xvi Gärtner (n 2).

xvii Evans (n 1).

xviii Koskenniemi (n 5) p. 31.

xix Naruzzaman (n 3); Naruzzaman, Mohammed. ‘The ‘Responsibility to Protect’ Doctrine: Revived in Libya, Buried in Syria.’ (Insight Turkey, 15.2, 2013).

xx Naruzzaman (n 3).

xxi Evans (n 1).

xxii Koskenniemi (n 5).

xxiii Syeda Naushin Parnini. ‘The Crisis of the Rohingya as a Muslim Minority in Myanmar and Bilateral Relations with Bangladesh’ (2013) Journal of Muslim Minority Affairs, 33:2.

xxiv Human Rights Council, ‘Report of the independent international fact-finding mission on Myanmar’ (UN, 12 September 2018).

xxv Ibid, p.1.

xxvi For more information about the crisis situation in Myanmar, see https://just-access.de/responsible-or-complicit-a-look-at-myanmars-crisis-through-its-business-actors-peoples-resistance-and-the-international-community/.

xxvii Evans (n 1).

xxviii Global Centre for the Responsibility to Protect. ‘Q&A: The Gambia v. Myanmar, Rohingya Genocide at The International Court of Justice, May 2020 Factsheet’ (Global R2P, 21 May 2020) <https://www.globalr2p.org/publications/myanmarqav2/> accessed 25 February 2022.

xxix BBC News, ‘Myanmar Rohingya violence is genocide, US says’ (BBC News, 21 May 2022) <https://www.bbc.com/news/world-asia-60820215>.

xxxSuwita Hani Randhawa, ‘The Rohingya Genocide and Southeast Asian Responses’ (Australian Institute of International Affairs, 15 December 2022). <https://www.internationalaffairs.org.au/australianoutlook/the-rohingya-genocide-and-southeast-asian-responses/>.

xxxi Al Jazeera Staff, ‘Myanmar military accused of war crimes, genocide in German suit’ (AlJazeera, 24 January 2023) <https://www.aljazeera.com/news/2023/1/24/myanmar-military-accused-of-war-crimes-genocide-in-german-suit> accessed 1 March 2023

xxxii Barker, Greg, Julia Powell, and Will Lyman. Ghosts of Rwanda, 2004. Transcript by FRONTLINE < https://www.pbs.org/wgbh/pages/frontline/shows/ghosts/etc/script.html> accessed 25 February 2022.

xxxiii Marni Koskenniemi, ‘Letter to the Editors of the Symposium’ (1999) 93 American Journal of International Law 351, 354.

xxxiv Mennecke, Martin, and Stensrud Ellen. ‘The failure of the international community to apply R2P and atrocity prevention in Myanmar.’ (2021) 1 Global Responsibility to Protect.

xxxv Parnini (n 23).

xxxvi Mennecke, Strensrud (n 28).

xxxviiRusso, Jenna B. ‘R2P in Syria and Myanmar: Norm Violation and Advancement.’ (2020) 12.2 Global Responsibility to Protect.

xxxviii Evans (n1).

xxxix Pedersen, Morten B. ‘The Rohingya Crisis, Myanmar, and R2P ‘Black Holes’.’ (2021) 13.2-3 Global Responsibility to Protect.

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Responsibility to Protect & The Rohingya Genocide: The Latest Liberal Failure?