Intervention and International Society

The Responsibility to Protect and Prosecute: The Political Sustainability of Liberal Norms in an Age of Shifting Power balances

Principal Investigator: Jason Ralph
Project Team: Adrian Gallagher (Leeds); Aidan Hehir (Westminster) James Pattison (Manchester)

Project Type: ESRC funded seminar series (9 one day events)  Seminar 1 part funded by BISA Working Group on Intervention and Responsibility to Protect    

Dates: November 2013 – October 2016

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In this section:

Project synopsis

This project focuses on R2P and the International Criminal Court as examples of what it calls the liberal trajectory of contemporary international society. This captures the sense in which the meaning of sovereignty has changed and the state’s right to govern is now contingent on it fulfilling certain responsibilities to its population. The question of who decides when a state is unwilling or unable to meet those responsibilities and what action ‘the international community’ should take has, however, proven extremely contentious.

The debate centres on a concern that states will use the humanitarian agendas associated with the RtoP and ICC as veils to disguise the pursuit of political (even neo-imperial) goals; and while this argument has long been present in the academic literature and in the statements of rejectionist states, it took on additional significance during the 2011 Libyan crisis when the NATO-led coalition was accused of going beyond the politically neutral protection of civilians mandate to pursue a politically loaded policy of regime change. Reinforcing this was the longstanding African frustration with the Security Council’s unwillingness to listen to its requests for the deferral of ICC investigations. What makes this argument potentially significant is that it was voiced by the emerging powers or BRICS states (Brazil, Russia, India, China and South Africa).

This poses the question of whether the shifts in global power toward these states will undermine international society’s commitment to RtoP/ICC, and what might be done to sustain political support for these two aspects of the liberal order. The aim of the seminar series is to answer this question by exploring the challenges to the political sustainability of RtoP/ICC in light of these shifting patterns of power.

Publications and Outputs

Working papers accompanying the seminar series will be posted here.

Jason Ralph and Adrian Gallagher ‘Legitimacy Faultlines in International Society. The Responsibility to Protect and Prosecute after Libya’. Unpublished paper presented at European International Studies Association, Warsaw, 18 September 2013.

Seminar Three

Provisional Programme

Workshop on “Rising Powers and the Responsibility to Protect: Brazil, Liberal Norms, and the Responsibility while Protecting Concept”

Politics, School of Social Sciences, University of Manchester

All sessions take place in the Board Room, Second Floor, Arthur Lewis Building (building no. 36 here), 1 August 2014

Registration required: b.f.docherty@leeds.ac.uk

 

10:30-11:00 Arrival

11.00-12.30 Session 1

  • Kai Michael Kenkel, Pontifical Catholic University of Rio de Janeiro

“Emerging Powers and Intervention Norms: Norm Localization and Subsidiarity in the “Responsibility while Protecting” Initiative”

  • Cristina Badescu, Western University, Canada

“Responsibility While Protecting: A Constructive Attempt to Consolidate R2P Normatively?”

 

12:30-13:30 Lunch

 

13.30-15:00 Session 2

  • Thorsten Benner, Director, Global Public Policy Institute, Berlin

Paper Title: TBC

  • Oliver Stuenkel, Fundação Getulio Vargas, São Paulo

Paper Title: TBC

 

15:00-15:30 Tea

 

15:30-17:00 Session 3

  • Henrique Furtado, University of Manchester

“The (ir)responsibility to Remember: Keeping Brazilian Peacefulness “

  • David Karp, University of Sussex

“Protecting Human Rights in Brazil: Non-state Actors’ Responsibility”

 

Drinks, then dinner

 

The workshop is part of an ESRC seminar series. For more project information, see http://iisr2p.leeds.ac.uk/current/responsibility-to-protect-and-prosecute/

Audio recording of previous seminars is also available on this page)

Follow us on Twitter:@Ir2Pwg

Abstracts

 

Cristina Badescu, Western University, Canada

Paper Title: “Responsibility While Protecting: A Constructive Attempt to Consolidate R2P Normatively?”

Abstract: “This paper discusses the merits of the concept note Brazil introduced to the UN Security Council in November 2011, in light of the controversies following NATO’s intervention in Libya. The goal is to assess the impact the responsibility while protecting (RwP) initiative has had on R2P and its implementation. The first section explores the meaning of RwP by discussing the complementarities and tensions between RwP and R2P. The starting point is the assumption that the RwP initiative illustrates the rising powers’ resistance to Western normative dominance, and their attempt to reform the traditional normative order. While RwP acknowledged the existing consensus on R2P and its legitimacy, it emerged to clarify how R2P is implemented, especially in regard to its third pillar. The second section of the paper emphasizes RwP’s focus on one small, but very important component of R2P’s third pillar, namely the use of force. It is in this context that the Brazilian initiative rightfully detected that R2P lacks ‘specificity’, which is deeply problematic for any emerging global norm, and, as such, proposed refinement. Two of the most contentious aspects of the original RwP proposal are discussed in this section: the idea that the three pillars of R2P ‘must follow a strict line of political subordination and chronological sequencing’, and the need for accountability, through establishing a monitoring and review mechanism to keep Security Council members informed about mandate implementation. While the former is incompatible with some of the basic tenets of R2P, the latter has potential to clarify R2P. The last section of the paper equates the Brazilian initiative’s potential to consolidate R2P to developing concrete proposals vis-a-vis such key elements of RwP, which would refine the terms of R2P’s implementation. Given Brazil’s lack of interest to engage with RwP further, there is a clear need for other rising powers, such as India or South Africa, to revive the Brazilian proposal and participate in shaping a common interpretation of the third pillar of R2P. If rising powers are to increase their normative clout, which they aim to do, they need to engage with global norms like R2P, to show they are indeed committed and capable of shaping global responses to some of today’s most serious global problems.”

 

Thorsten Benner, Director, Global Public Policy Institute, Berlin

Paper Title: TBC

Abstract: TBC

 

Henrique Furtado, University of Manchester

Paper Title: “The (ir)responsibility to Remember: Keeping Brazilian Peacefulness “

Abstract: In Writing Security (1992) Campbell re-signified the notion of foreign policy as the constant production of what is foreign to a particular national identity through a double exclusion that connects internal unwanted populations to external threats. This particular conception of foreign policy, with an understanding of Brazilian remembrance of “state terror” might help to clarify the problematic interaction between the depiction of Brazil as a peaceful nation and its increasing interest, as a “rising power”, to partake and lead peacekeeping operations. In 2009, the 3rd National Program for Human Rights instituted the right to memory and truth about past violations of human rights during the Cold War dictatorship. In 2012 the National Truth Commission (CNV) was instituted and started scrutinizing the crimes of former state agents. One particular aspect of this official project of remembrance is that it systematically portrays, in a rather common fashion, perpetrators of violence in a discourse of monstrosity. The military that tortured, assassinated and disposed of the mortal remains of dissidents are described as monstrous, pathological state terrorists trained by American, British, French and Israeli intelligence services. Here, memory, the politics of creating foreignness, and peace-keeping are intertwined in the potentially permissive consequences of a discursive apparatus. I argue that, the truth commission carries out, in a double exclusion, the connection of former perpetrators with western imperialist pretension. Official remembrance, feeding into the discourse of “Brazilian Peacefulness” exorcises violence from the nature of Brazilian people. As a consequence, by irresponsibly remembering past perpetrations of violence as “foreign” to Brazilian national identity, as a series of “metastases” into society that are now being “extriped” by the truth commission, we create the conditions to dismiss present and potential forms of violence committed by Brazilian troops. Hence, by “keeping Brazilian peacefulness” this remembrance creates the conditions to raise Brazil as the perfect peacekeeper.    

David Karp, University of Sussex

Paper Title: “Protecting Human Rights in Brazil: Non-state Actors’ Responsibility”

Abstract: TBC

 

Kai Michael Kenkel (Pontifical Catholic University of Rio de Janeiro) and Felippe De Rosa

Paper Title: “Emerging Powers and Intervention Norms: Norm Localization and Subsidiarity in the “Responsibility while Protecting” Initiative”

Abstract: “This paper empirically applies the concepts of norm localization and norm subsidiarity, as developed and Acharya and revamped by Prantl and Nakano, using as an example the “responsibility to protect” initiative launched by Brazil in November 2011. The RwP diplomatic paper is the result of one of the clearest instances of the clash between local and putatively global/universal norms in recent years. The paper itself is not innovative, and its final intention is unclear; it contains elements of both norm localization and of the desire to establish the subsidiarity of Brazilian and regional traditions of non-intervention. As such it recasts the responsibility to protect in language acceptable to a Brazilian public while simultaneously seeking to inject regional interpretations into the larger, global debate. The paper makes use of Acharya’s model to outline drivers and resistances in the localization process, identifying the extent to which successful localization has occurred and contributing to more clearly differentiating the notions of localization and subsidiarity. RwP contains elements of both, which the paper clearly identifies in Brazil’s initial forays into the intervention.”

 

Oliver Stuenkel, Getúlio Vargas Foundation, São Paulo

Paper Title: TBC

Abstract: TBC

Resources

UN Special Adviser on the Responsibility to Protect Jennifer Welsh speaking recently at The Centre for International Governance Innovation (CIGI), The Evolution of the Responsibility to Protect: Securing Individuals in a World of States September 30, 2013

Recordings

Seminar 1.

Title: Responsibility to Protect and the Crises in Libya and Syria

When: 5 December 2013, 11am start.

Where: The Boardroom, University of Westminster, 309 regent Street, London, W1B 2HW

The opening address by Professor Jennifer Welsh, Special Adviser on R2P to the UN Secretary General.

Panel 1: “Assessing R2P’s Efficacy During the Crises in Libya and Syria” (MP3 file)
  Chair: James Pattison (Manchester)
  Chris Brown (LSE)
  Philip Cunliffe (Kent)

  Justin Morris (Hull)
  Aidan Hehir (Wmin)

Panel 2: “R2P After the Arab Spring” (MP3 file)
  Chair Jason Ralph (Leeds)
  James Kearney (UKUNA)
  James Pattison (Manchester)
  Adrian Gallagher (Leeds)

Seminar 2.

Title: Responsibility to Protect and Prosecute. The International Criminal Court after Libya.

When: 24 April 2014, 11am start.

Where: Yorkshire Bank Lecture Theatre, Maurice Keyworth Building, University of Leeds, Ls2 9JT

The opening address by Carsten Stahn (MP3 file),  Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies

Panel 1: From Sheriff to Judge: Reimagining Punishment, Justice and International Relations. Anthony F Lang and Aidan Hehir (MP3 file)

Panel 2: R2P and ICC: Common cause, shared problems (MP3 file)

Kirsten Ainley (LSE); Andrea Birdsall (Edinburgh); Jason Ralph (Leeds); Andrew Jillions (LSE)

The Responsibility to Protect and Prosecute: the International Criminal Court after Libya

Yorkshire Bank Lecture Theatre, University of Leeds on 24th April.

The event is open to all and free but registration is required. Contact: b.f.docherty@leeds.ac.uk

POGRAMME

11am Arrival Tea Coffee

11.20 Welcome

11. 30 OPENING LECTURE: Carsten Stahn, University of Leiden

Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies. He has previously worked as Legal Officer in Chambers of the International Criminal Court (2003-2007) and as Research Fellow at the Max Planck Institute for Comparative Public Law and International Law (2000-2003)

1.00 LUNCH

2.00 LECTURE Tony Lang, University of St Andrews From Sheriff to Judge: Reimagining Punishment, Justice and International Relations. Anthony F Lang, Jr holds a Chair in International Political Theory in the School of International Relations at the University of St Andrews and is Director of the Centre for Global Constitutionalism.

Abstract: The Responsibility to Protect has become a prominent term in the discourse surrounding intervention in the current international order. While it is referred to by many, it is nebulous and lacks a strong legal foundation; its deployment by powerful actors in the international order is, therefore, more akin to the role of a wild west sheriff than an agent of a fully function political and legal order. We argue that R2P includes a punitive dimension which is selectively applied and that this results in a practice that reinforces the power of some in the international order without creating long term peace and stability. Invoking R2P and selectively issuing referrals to the ICC, allows the Security Council – like the sheriff – to subjectively determine which situations to address and which lawbreakers to prosecute; this consolidates, and indeed expands, the power of the Security Council in relation to other agents of the law. In order to move away from the sheriff and toward the judge, this paper argues that those concerned with the consistent enforcement of international human rights law and the punishment of human rights violators must accept the need for reforms to the current international order that would allow a better integration of R2P into international law and practice. Our reforms – advanced in the form of general principles taken from legal theory – propose locating R2P more firmly in a global constitutional order, one that would include a more active role for the ICC, ICJ, and other judicial structures.

3.30 COFFEE / TEA

4.00 PANEL: The role of the ICC in R2P. Common cause and common problems: 

Andrea Birdsall (Edinburgh)

Abtract to follow

Jason Ralph and Adrian Gallagher (Leeds) Legitimacy Faultlines in Contemporary International Society. The Responsibility to Protect and Prosecute after Libya.

Abstract

There is a perceived legitimacy deficit in contemporary international society. A symptom of this is the political contestation surrounding the 2011 Libyan crisis and its influence on the 2011-3 Syrian crisis. This involved criticism being levelled at the coalition led by the so-called Permanent-3 for the way they implemented the protection of civilians mandate, as well as for the referral of the Libyan situation to the International Criminal Court.  How the P3 respond to these developments will be driven in part by how this ‘legitimacy fault line’ is interpreted. The purpose of this paper is to first give an interpretation that is informed by the work of contemporary English School scholars and the political theorists they draw on; and second to provide the context in which specific policy recommendations may guide the response of the P3 states.   We argue that because the new legitimacy fault line divides on the procedural question of who decides how international society should meet its responsibilities rather than substantive disagreements about what those responsibilities are (i.e. human protection and criminal justice) the challenge to the liberal agenda of the P3 is not radical.  However, we also argue that ignoring the procedural concerns of the African and BRICS states is not outcome neutral and could in fact do harm to both the ICC and the wider implementation of R2P.  We consider two proposals for procedural reform and examine how the P3 response would impact on their claim to be good international citizens.

Mark Kersten (LSE) ICC and R2P – Back to Ad Hocery?

Abstract: Early proponents of the International Criminal Court (ICC) and the Responsibility to Protect (R2P) believed that these normative and legal instruments would challenge and transcend the ‘realpolitik’ of international relations. That ‘realpolitik’ was seen as responsible for the inaction and selectivity that characterized humanitarian and judicial interventions in the twentieth century. It appeared that the permanent International Criminal Court and the doctrine of the Responsibility to Protect could push the international community beyond ad hocery of international criminal justice and atrocity prevention. Their creation would result in interventions grounded on moral and humanitarian convictions rather than the narrow political interests of states. This paper contends, however, that neither R2P nor the ICC have been able to achieve this aim. Both remain heavily constrained by the political calculations of the permanent members of the United Nations Security Council. In examining the invocation of R2P and the intervention of the ICC in Libya, it is ultimately argued that the ad hocery of humanitarian and judicial interventions is compounded rather than alleviated by the increasingly close relationship between R2P and the ICC and that a clearer separation of R2P and the ICC would bolster the legitimacy of both. 

Kirsten Ainley (LSE) Failing Humanity: Reforming the ICC and R2P post-Syria

 Abstract

The International Criminal Court and the Responsibility to Protect process are the most important innovations in international ethics for decades. They were set up both to deal justly with present or past suffering, but also, and more importantly, to deter future breaches of state responsibilities or international criminal law. However, these two institutions are argued by many to be in crisis, in particular due to their failure to prevent or prosecute acute and systematic human rights abuses in Syria since the uprising began in March 2011. It is tempting to try to solve these crises by seeking ways to bring the ICC and R2P closer together – to use them to help to build a more robust global constitutional structure that will strengthen each institution. However, I argue in this article that even if such a move were possible, it would be a mistake. The ICC is not an institution that functions well when embroiled in on-going conflict, not least because it can only make the situation worse as far as some key actors are concerned. If the Court seeks to prosecute atrocities committed by only one side of the conflict (as it did in the Libya case), the institution appears to be a tool of politics. If it seeks to prosecute atrocities on each side, it hampers good politics by making more difficult the rehabilitation of rebel groups that is often necessary in order to establish them as a legitimate government once the fighting has ceased. The article argues that the Court’s most successful actions have not been in the context of live conflict, but in less well-known situations such as long-term negotiations with Colombia over reform of its domestic criminal system. Also, the closer the relationship between the ICC and R2P, the more the ICC will have to rely on the UNSC for referrals of cases, which is to be avoided. The drafters of the Rome Statute worked hard to carve out a space of authority for the ICC which was not subject to UNSC power, and positioning the ICC as an instrument that can assist in live conflict situations will unsettle this authority and make the Court look like an instrument of the UNSC. The article concludes that the reforms that would be most useful and viable for the ICC and R2P might take them further away from each other but would make each more true to its original mandate. The ICC should devote more resource to its complementarity agenda, in order to deter future conflict through stronger domestic criminal systems (and, by extension, more robust legislatures and more accountable governments), and advocates of R2P should focus less on intervention in live conflict situations and more on building within states the resources and willingness to protect their own populations via the responsibility to prevent.

 

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