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Thursday, August 20, 2009

Wong on the Responsibility to Protect

Jarrod Wong  (University of the Pacific - McGeorge School of Law) has posted Reconstructing the Responsibility to Protect in the Wake of Cyclones and Separatism (Tulane Law Review, Vol. 84, 2009) on SSRN. Here is the abstract:

The Article fundamentally reconceptualizes the doctrine of the responsibility to protect (R2P) by proposing an interpretation of R2P that would authorize the international community to respond not just to mass atrocities perpetrated through armed attacks but also those resulting from a government’s criminal failure to protect its people based on omissions that constitute crimes against humanity. As endorsed by the UN in 2005, R2P provides that where sovereign governments are manifestly failing to discharge their primary responsibility to protect their populations from 'genocide, war crimes, ethnic cleansing, and crimes against humanity,' that responsibility shifts to the wider international community acting through the UN. A contentious but crucial element of the doctrine is that it authorizes the use of force, although only as a last resort and then only if sanctioned by the UN Security Council. In May 2008, a storm of controversy arose around the proper scope of R2P in the wake of the destruction wreaked by Cyclone Nargis in Myanmar. In the face of the junta’s resistance to foreign help even as tens of thousands of people lay dying, French Foreign Minister Bernard Kouchner raised the possibility of the UN implementing R2P to compel the delivery of aid. Critics opposed to applying R2P here noted that the doctrine addressed the perpetration of mass atrocities like the genocide in Rwanda, and not natural disasters, and that to do so would effectively justify all manner of humanitarian intervention, and thereby destroy the legitimacy of R2P. In contrast, those seeking to apply R2P in Myanmar discerned no moral sense in distinguishing between withholding aid in natural disasters and refusing to help in situations of armed conflict when the end result was the same: serious and irreparable harm to the population. However, while both sides make compelling points, the premise of the exchange itself is fundamentally flawed insofar as it turns on the concept of natural disasters. R2P applies if at all because of the state’s criminal failure to protect its citizens from harm in the aftermath of the natural disaster, and not because of the deaths immediately caused by the natural disaster. In other words, if Myanmar could but did not prevent the continuing large-scale loss of life in the wake of the cyclone, then R2P is potentially applicable since such deliberate inaction itself is culpable neglect that arguably amounts to a crime against humanity under international law. Accordingly, this Article proposes the adoption of an alternative analytical framework based on what I call the 'constructive interpretation' of R2P. Under this interpretation, R2P applies 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 constitutes a crime against humanity under international law. Significantly, the Article will demonstrate that the constructive interpretation of R2P is grounded in prevailing international criminal jurisprudence, which has recognized that an omission may be the basis of a finding of a crime against humanity. There is, in other words, no need to sanction natural disaster situations as a new and independent basis for invoking R2P. Rather, natural disaster situations that warrant intervention already fall within a self-defined basis for the invocation of R2P, namely the failure of a government to protect its population against a crime against humanity. Because the constructive interpretation of R2P stays faithful to its definition, it tempers the concerns regarding abuse while providing a means of intervening in otherwise desperate situations involving grave harm by omission. In keeping the focus on the issue of the criminal failure to act rather than natural disasters, the constructive interpretation also lends R2P greater coherency and moral authority, but yet preserves its bite. Further, as this Article will show, the safeguards inherent in both the definition and the mode of operation of the doctrine will prevent R2P from overreaching, and the resulting formulation of R2P, while broader, could paradoxically foster greater support for the doctrine and insure its use in any future crisis that calls for it.

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