Tag Archives: R2P

International Humanitarian Law more clear and more debated than ever – updated

by Rhodri C. Williams

The immediate inspiration for this post was the fact that the International Committee for the Red Cross (ICRC) recently put online its vast and expanding database on which norms of International Humanitarian Law (IHL) are now deemed to have attained the status of customary international law (CIL), binding on all parties to armed conflicts whether or not they have ratified (or otherwise assented to be bound by) the treaties that give rise to these rules.

The database consists of both a comprehensive listing of the rules now deemed applicable and a compendium of practice, both that which supports the emerging rules and objections against its validity (anyone want to take some wild guesses on what states frequently feature in the latter category?) In the new online version, the practice of some seven further states and a number of international tribunals have been added. The new database constitutes a highly accessible and useful tool alongside ICRC’s additional databases on treaty ratification and application by States Parties.

The good news is that there has been considerable progress in this area. I have written on this blog and elsewhere about the role of soft-law documents like the 1998 UN Guiding Principles on Internal Displacement in consolidating a human rights based approach that has transformed humanitarian action in the post-Cold War period. This transformation has brought new possibilities for advocacy by pairing the cautiously phrased and state-centric provisions of IHL with the less ambiguous and more individual-oriented rules of international human rights law (IHRL).

Moreover, because advocacy for the Guiding Principles has focused on engaging willing states (at the risk of to some extent being co-opted by them), they have been far more successful than most soft-law standards, to the extent of having been incorporated in numerous national laws and policies (compiled by the Brookings Institution here) as well as a groundbreaking regional convention adopted by the African Union. This, in turn, has provided support for customary IHL to more vigorously address areas such as the prohibition against arbitrary displacement (including in internal conflicts), the right of voluntary return for internally displaced persons (IDPs) as well as the state obligation to respect their property rights.

However the new force and reach that a rights-based approach has given to IHL has brought new risks as well. Most obviously, by encouraging humanitarian actors to condemn violations of human rights (such as forced displacement) and demand accountability and remedies (such as restitution), the rights-based approach may create dangerously high expectations on the part of beneficiaries of aid while simultaneously undermining the perceived impartiality of humanitarian actors. In the worst cases – and we do not have to look far to find them – this limits the access of humanitarian actors to vulnerable populations and puts their own security at risk.

As a result, this ongoing retrenchment of the rules of conflict has opened up new policy debates, most recently in the extremely difficult humanitarian arena of the Syrian conflict. The latest iteration came with the 28 April 2014 publication of an open letter signed by 35 eminent legal scholars. The letter noted that 3.5 million civilians – over a third of those in urgent humanitarian need in Syria – are living in areas accessible only from neighbouring countries. However, because Syria has denied consent to humanitarian actors operating in Syria to send cross-border aid, these civilians face a catastrophe.

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Responsibility to provoke? Aggression, self-determination and the Ukraine crisis

by Rhodri C. Williams

With four posts in a row on the tumult in Ukraine, it is starting to feel like this blog has joined Crimea in being overrun by Berkut riot police and Night Wolves biker gangs. But it is impossible not to be distracted by the parade of tragicomedy that almost hourly seems to turn all of our sanctimonious post-Cold War certainties on their head. And the point is that after three posts of, essentially, just trying to keep up with events, this is the one where I finally get to engage with the scrimmage of international law and self-determination discourses being hurled around.

First things first. There is little doubt that the Russian takeover of the Crimean peninsula is illegal under international law, and more specifically the rule against aggression that constitutes one of the central planks of the UN Charter. US Secretary of State John Kerry splashed out early on, decrying an “incredible act of aggression”, with Russia behaving in a “19th century fashion by invading another country on a completely trumped-up pretext.” More soberly, EU Foreign Ministers have condemned “acts of aggression by the Russian armed forces.”

Legally, the charges seem to stick. In a cautious, preliminary analysis in EJILTalk, Daniel Wisehart argues that neither of the relevant conventional exceptions to the non-aggression rule – self-defence or intervention by invitation – can credibly be invoked in this case. A recent appeal by the Ukrainian Association of International Law goes further to claim “not only a violation of the UN Charter and general international law, but also of the bilateral treaty permitting Russia to retain the Black Sea Fleet in Ukraine, and also of the security assurances given in the Budapest Memorandum of 1994 by Russia…” So, what is Russia saying?

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A problem from hell for the 2010s

by Rhodri C. Williams

In listening to the Obama administration’s latest contortions on the ever-shifting red-line in the face of ever-clearer evidence of the use of chemical weapons by the Syrian regime, it is hard not to be transported back in time to another Democratic administration facing another problem from hell twenty years ago.

In 1994, it was President Clinton facing a similarly impossible red line in Rwanda, unable to publicly recognize the brute reality of what was happening on the ground because of the legal responsibility it would entail to intervene. As described here by the Guardian in 2004, it would take a decade for the obvious to become a matter of public record:

President Bill Clinton’s administration knew Rwanda was being engulfed by genocide in April 1994 but buried the information to justify its inaction, according to classified documents made available for the first time. Senior officials privately used the word genocide within 16 days of the start of the killings, but chose not to do so publicly because the president had already decided not to intervene.

Meanwhile, as the assault on moderate Hutus and any Tutsis continued, officials in Washington, D.C. were reduced to the demeaning sophistry of discussing formulations rather than condemning mass-murder. For a sobering  reminder, witness the agonies of State Department spokesperson Christine Shelly in April 1994:

In Rwanda, as in Syria, there were tremendous risks associated with intervention and little domestic political support for becoming bogged down in another sticky regional conflict. Indeed, in Syria, commentators are only beginning to awaken to the historical complexities that have shaped the region, providing a more accurate accounting of the difficulties that would face any intervention while at the same time feeding the risk of dismissive ‘ancient ethnic hatreds’ narratives of the type that arguably delayed a meaningful international response to the crises in the former Yugoslavia and Rwanda.

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Politics as land disputes by other means? Kenya braces itself for elections (updated)

by Rhodri C. Williams

Kenyans go to the polls next Monday in the culmination of an entire political season spent building institutional guarantees against a repeat of the appalling ethnic violence and mass-displacement that followed the country’s last elections in 2007. Prevention measures ranging from a new 2010 Constitution to a 2012 law criminalizing internal displacement have been earnestly discussed and adopted in the intervening years.

However, the breathtaking fact remains that some of the leading candidates in the current election may be responsible for the violence of the last round – and that their eventual election may be used as a pretext to effectively shield them from accountability for these crimes before the International Criminal Court (ICC).

The resulting ‘bizarre’ nature of the first debate between Kenya’s presidential candidates was captured by Mark Kersten at Justice in Conflict, who also reflected recently on the underlying question the ICC-Kenya brouhaha raises – namely whether transformative political change has supplanted individual criminal responsibility as at least the implicit primary aim of international justice.

There is certainly a case for such an approach, which arguably only transposes the consequences of the individual criminal behaviour of political leaders into the novel but expanding terrain of the state responsibility to protect (see Mark Kersten again, here). If the results of an individual leader’s acts are now recognized as giving rise to a threat to international peace and security, in other words, why should the rest of the international community sit around and twiddle its thumbs?

On the other hand, principled arguments against such an expansive view of the aims of international justice include the risk of politicization of the ICC through selective support of regime change by gatekeeper institutions such as the UN Security Council. However, beyond this concern about the tail wagging the dog, Kenya may now have usefully exposed a major practical limitation on politically transformative international justice. For example, in an otherwise highly cogent piece on the upcoming elections in Kenya on OpenDemocracy, Clare Castillejo argues for what some may view as closing the barn doors after the horses have bolted:

So what can the international community do in these final days before the polls? Firstly it must send strong signals that politicians who incite violence will face international sanctions such as asset freezing, travel bans and – where possible – prosecution. Kenya’s international partners (particularly the US, UK and the EU) and its East African Community neighbours must be prepared to speak out forcefully at the first signs of electoral fraud or organised political violence.

Got that? Politicians now hoping to elude international accountability for past electoral violence by running for elected office are to be prevented from resorting to further violence by threatening them with accountability for such acts. Is that entirely convincing? I do not mean to be facetious, and I am very concerned for Kenya, but is doubling down on a concept of accountability that has proven elusive in practice likely to be effective as a means of protection? Perhaps it will, if applied as part of a unified campaign of international condemnation. But if it does not, the result may further undermine the effectiveness of accountability as a check on such crimes.

Humanitarians are also talking prevention, but in a slightly more nuanced (some might say ambiguous) way. Continue reading

Addressing injustice and managing expectations: Displacement and transitional justice discourses in Northern Uganda

by Rhodri C. Williams

Last week, I announced the publication of a new book on Displacement and Transitional Justice and provided an overview of some of the main themes touched on in my chapter on restitution in humanitarian and transitional justice contexts. My basic conclusions were twofold: First, that restitution has come to the fore in humanitarian practice not only due to its practical utility as a means of facilitating durable solutions to displacement, but also as part of the adoption of rights-based approaches by humanitarian actors. And, second, that restitution may actually be a more comfortable fit in transitional justice practice, given both the latter’s more direct concern with redressing violations (as opposed to ameliorating resulting vulnerability) and its political emphasis on sustainably transforming societies.

I wanted to return to these themes because I believe it is crucial to acknowledge the difficulty of drawing any tidy conclusions in any of these areas or even assuming that well-intentioned international forays into their post-conflict application are always effective. In fact, both transitional justice and humanitarian responses to displacement remain contested terrain, and one of the challenges in writing on restitution in this context was the need to deal with challenges to the legitimacy and effectiveness of both fields while describing a tactic for addressing past displacement – restitution – that has also become mired in controversy.

The whipsaw nature of these debates is exemplified by comparing recent commentaries on their fallout in Africa, and specifically Uganda. First, in a 2009 press release, the Refugee Law Project of Uganda’s Makerere University welcomes the recently adopted African Union ‘Kampala Convention‘ on internal displacement as “an important step towards clearly recognising the role of transitional justice in resolving forced migration situations”. The drafters of the press release made this connection in light of the Convention’s inclusion of reparatory measures meant to “take stock of the causes of and redress the violence of displacement.”

However, two years later, Makerere University visiting scholar Adam Branch wrote in Pambazuka to excoriate both concepts. While the earlier Makerere University press release and Branch’s later critique represent diametrically opposed viewpoints on the potential for international discourses to address local atrocities, I believe that they are also intimately linked. In essence, the Makerere statement represents the type of expectations – both realistic and unrealistic – that humanitarian responses to displacement as well as transitional justice measures tend to be burdened with. Branch’s article, by contrast, represents the tendency to dismiss both categories of measures when these expectations fail to be fully met.

This dichotomy of responses raises a number of familiar dilemmas. At a broad level, it invokes the risk that any international engagement always bears, namely that attention may be diverted from the primary responsibility of domestic actors to guarantee respect for human rights. Assuming that international engagement is unlikely to grind to a halt tomorrow over this moral hazard, a more practical dilemma involves how international actors and standards can make a positive difference without raising expectations that exceed their capacities, mandates and resources. In analyzing this question, it may be helpful to undertake a closer reading of Branch’s critique.

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Minority self-determination in China and the demolition of Kashgar

by Rhodri C. Williams

For those seeking yet more grim reading on the destruction of homes and cultural heritage worldwide, the Uyghur Human Rights Project can oblige. The UHRP just released a lengthy report on the final stages of the destruction of the old town of Kashgar, a cradle of the indigenous Uyghur culture within China’s Xinjiang autonomous region (referred to by Uyghurs as East Turkestan). The press release announcing the report stresses the manner in which both the nature of this process (top down, without the scantest consultation) and its apparent ends efface even the most notional commitments of the Chinese government to granting any meaningful self-determination to the Uyghur community:

The Chinese State’s Demolition of Uyghur Communities reveals how the destruction of Uyghur neighborhoods has resulted in the loss of both physical structures, including Uyghur homes, shops and religious sites, and patterns of traditional Uyghur life that cannot be replicated in the new, heavily-monitored Chinese-style apartment blocks where many have been forcibly relocated.

This report does not discount the importance of providing modern structural amenities to Uyghurs. However, it asserts a failure on the part of Chinese authorities to engage in meaningful consultation with Uyghurs regarding how they wish to transform their own communities. The report details the international and domestic legal instruments to which the Chinese government is bound that are designed to protect residents from forcible eviction from their homes and ensure that indigenous populations, such as the Uyghurs, have the right to develop according to their own principles.

Commenting on the report in Open Democracy, Henryk Szadziewski notes how ominously this paternalist, assimilationist and security-fixated approach comports with China’s growing role as a development actor in other states in which urbanization and ethnic tensions are politically salient factors (see also his earlier comment here).

Meanwhile, the not-so-subtly-monikered ‘True Xinjiang’ website lays down an uncompromising view from Beijing, with the ‘truth’ about the 2009 riots in Xinjiang stood up against the ‘lies’ of the exiled opposition groups, and unimpeachable foreign sources such as random English teachers, pleased German reporters, and the UNDP trotted out to attest to the mellow good feelings that actually prevail (just don’t mind that awkward link to ‘Beat down terrorism, separatism and extremism!‘).

Whatever one might think of the Responsibility to Protect (R2P) doctrine, Xinjiang is clearly one of those oppressed areas that is simply beyond the pale. Like Chechnya and Tibet, it lies within the internationally recognized territory of a country able and willing to go to the mat in the UN Security Council to prevent even the threat of intervention in oppressed areas outside its borders. Sadly, however, even having the deck stacked this clearly in their favor does not yet appear to have convinced the Chinese authorities they have nothing to lose (and much to gain) by  seeking out and taking on board the views of their Uyghur citizens.

Week in links – week 17/2011

A somewhat abbreviated WiL this week as the family is on Åland for an extended Easter break.

BBC coverage of this week’s Communist Party congress in Cuba leads with the news that private property rights will be allowed again, though the details have yet to be released. The main rule at this point appears to be that “concentration of property” will not be permitted. One is tempted to wonder if part of the motivation is to cut off restitution claims by Cuban exiles. As a stratagem, this worked rather well in Cambodia, but that was the Eighties…

– The European Journal of International Law (EJIL) has released its latest issue online. The focus is on the ‘human dimension of international cultural heritage law’, with quite a lot on the restitution of cultural property but also a number of interesting articles on indigenous peoples’ rights, including to land.

– The New York Times reports that scientists met in Aleppo, Syria this week to develop strategies for combating new diseases afflicting wheat. Let us hope that they are not hit by any stray bullets from the strategies the Syrian security forces have developed for combating new diseases afflicting authoritarianism.

– Tim Dunne and Jess Gifkins do a nice job in OpenDemocracy of pushing along the debate on how the current Libya intervention may both support and undermine the new concept of ‘responsibility to protect’ (R2P).

– Finally, the New York Times reported first on the pending collapse of a promising flurry of regional cooperation over damming the Mekong in Southeast Asia – and then its actual collapse.