responsibility to protect

p5Rather muted in the U.S. press is France’s recent call for “self-restraint” on its part and that of its veto-friendly partners in the P-5.

The P-5, of course, are the 5 countries with permanent membership on the U.N. Security Council. By U.N. Charter mandate, each of the 5 enjoys the right to veto a resolution authorizing intervention – even if the rest of the 15-member Council finds harm to international peace and security. As has been evident in the 2-plus years of Syria’s civil war, by exercising its veto a P-5 member can leave a matter run its course without international intervention no matter what the casualty count.

France has suggested a way out of this predicament. As stated in an op-ed that Foreign Minister Laurent Fabius published October 4 in Le Monde, in French, and in the International Herald-Tribune, in English, here’s the idea:

‘[T]he five permanent members of the Security Council – China, France, Russia, Britain and the United States – themselves could voluntarily regulate their right to exercise their veto. The Charter would not be amended and the change would be implemented through a mutual commitment from the permanent members. In concrete terms, if the Security Council were required to make a decision with regard to a mass crime, the permanent members would agree to suspend their right to veto.’

How to determine when the commitment is in play? It’s “simple,” Fabius wrote:

‘[A]t the request of at least 50 member states, the United Nations secretary general would be called upon to determine the nature of the crime. Once he had delivered his opinion, the code of conduct would immediately apply.’

Fabius recognized “that objections of all kinds can be made,” and sought to deflect some of them with this caveat:

‘[T]his code would exclude cases where the vital national interests of a permanent member of the Council were at stake.’

It is not a new idea. As pointed out in an October 3 lecture at Georgia Law by Lee A. Feinstein, the former U.S. Ambassador to Poland who’s teaching here this semester, a similar idea appeared as Principle 3(D) of The Responsibility to Protect, the 2001 Report of the Independent Commission on Intervention and State Sovereignty, which launched the responsibility to protect concept.

What is new is that the show of support comes from a P-5 state itself. Yet it must be mentioned that France has vetoed far fewer times than most of its peers on the P-5. And those peers likely will be far less enamored of France’s idea, as Mark Goldberg posted at UN Dispatch.

What could draw those peers toward France’s idea? Perhaps an understanding that a P-5 member’s “vital national interests” are “at stake” whenever a resolution implicates the member’s client state. But then adoption would be hollow, for such a proviso would sap the proposal of its strength.

(credit for September 2013 U.N. photo by Mark Garten of, from left, British Foreign Secretary William Hague, French Foreign Minister Laurent Fabius, Russian Foreign Minister Sergey Lavrov, U.N. Secretary-General Ban Ki-moon, U.S. Secretary of State John Kerry, and Chinese Foreign Minister Wang Yi)

Flag_of_the_United_Nations.svgApparently so. See Seton Hall Law Professor Kristen Boon’s Opinio Juris post on U.N. Secretary-General Ban Ki-moon’s 5th report on responsibility to protect here.

Ban’s 17-page report, dated July 9, 2013, is here. Prior posts detailing the development and invocations of the doctrine of responsibility to protect – and thus placing in context the report’s omission of the 2011 U.N. Security Council referral of the situation in Libya to the International Criminal Court – may be found here and here.

powerobamaNews of Samantha Power’s nomination as U.S. ambassador to the United Nations prompted me to read her biography of that 68-year-old international organization. In truth, the book is a biography of the top diplomat killed 10 years ago when a car bomb gutted U.N. headquarters in Baghdad. Yet because that diplomat had effectively grown up alongside the United Nations – he was born fewer than 3 years after its Charter entered into force, and he would serve under 5 of its 8 Secretaries-General – Power’s Chasing the Flame: Sergio Vieira de Mello and the Fight to Save the World (2008) tells the life story of both the man and the organization. The book thus indicates what Power thought of the United Nations back when she was advising then-Senator Barack Obama on foreign policy.

Emphasized throughout Chasing the Flame is Vieira de Mello’s transformation from a man of humanitarian action alone to one who comes to realize, indeed to embrace, the significance of politics in humanitarian endeavors. Recounting his late-1980s role in repatriating Vietnamese refugees, Power wrote with disapproval of Vieira de Mello’s decision to “downplay his and the UN’s obligation to try to shape the preferences of governments” (p. 69, emphasis hers). She likewise criticized his early ’90s stance of neutrality while serving in UNPROFOR, the hapless U.N. Protection Force mission in Bosnia: “impartial peacekeeping between two unequal sides was,” she wrote, “its own form of side-taking” (p. 179). In contrast, Power conveyed approbation when she wrote that by the late 1990s, after working to return Hutu refugees to Rwanda, Vieira de Mello “was now convinced that UN officials would better serve the powerless if they could find a way to enlist the power of the world’s largest countries” (p. 219). According to Power’s epilogue, the key to harnessing that power is flexibility (p. 516-17):

power‘While many have responded to today’s divisions and insecurities with ideology, Vieira de Mello’s life steers us away from one-size-fits-all doctrine to a principled pragmatism that can adapt to meet diffuse and unpredictable challenges.’

The United Nations, she added (p. 519), has a critical role to play:

‘UN civil servants had to become more self-critical and introspective, accepting what had taken Vieira de Mello years to learn: that they are agents of change themselves and not simply the servants of powerful governments.’

In this book as in A Problem From Hell: America and the Age of Genocide (2002), Power put much blame on the U.S. government. The United States’ perception of its own self-interest often appeared short-sighted and inept. U.S. officials’ resistance to the International Criminal Court won them no favor. Ineptitude was especially evident in the U.S.-led invasion and occupation of Iraq – events that would place Vieira de Mello and other humanitarians in Baghdad on the fateful date of August 19, 2003.

Power herself began working for the U.S. government not long after Chasing the Flame was published. As Special Assistant to President Obama and Senior Director for Multilateral Affairs and Human Rights at the White House-based National Security Council, she spent years working on issues at the heart of her earlier writings.  (An account of a central effort, establishment of an Atrocities Prevention Board made up of officials from various U.S. agencies, was the subject yesterday of a New York Times article.) She’s reported to have played a pivotal role in the U.S. decision to intervene in Libya based on U.N. Security Council resolutions that invoked a concept discussed in her book, the responsibility to protect; to be precise,at p. 528 and elsewhere, Power stressed Vieira de Mello’s espousal of the emerging doctrine. These experiences may have adjusted Power’s views on the relation between the United Nations its member states. Yet most likely her 5 requirements for foreign policy success, distilled from her account of Vieira de Mello’s life, remain a constant. Quoted in full from p. 523, they are:

  • Legitimacy matters, and it comes both from legal authority or consent and from competent performance.
  • Spoilers, rogue states, and nonstate militants must be engaged, if only so they can be sized up and neutralized.
  • Fearful people must be made more secure.
  • Dignity is the cornerstone of order.
  • We outsiders must bring humility and patience to our dealings in foreign lands.

(What follows are the remarks I delivered earlier today at the annual meeting of the American Society of International Law in Washington. The footnoted version of this speech is available at SSRN here.)

asil_logoI am very honored, and most deeply humbled, by this Prominent Woman in International Law award. I am humbled when I look at the list of prior recipients. They include: Pat Wald and Mireille Delmas-Marty, two women whose lifework has inspired my own. Stateswomen like Pat Schroeder and Geraldine Ferraro. ASIL leaders like Lucy Reed and Edie Weiss. Another woman who serves as a Special Adviser to the International Criminal Court Prosecutor, Patti Sellers. And Carol Lee, a woman who, like me, once clerked for Justice John Paul Stevens. (Indeed, as of today Justice Stevens may add “feeder judge for PWIL award” to his long list of accomplishments.)

I am even more humbled when I think of all the amazing international law women who deserve this award. Let me name a very few: Our new ASIL President-Elect, Lori Damrosch (who is here with her mother, Jean Fisler, a WILIG stalwart), not to mention ASIL fearless leader Betsy Andersen. Joan Donoghue and her sisters on the International Court of Justice. The ICC Prosecutor whom I am honored to serve, Fatou Bensouda, as well as my sister Special Advisers, Leila Sadat and Brigid Inder. Stateswomen like Mary Robinson and Hillary Clinton. And still another woman whose lifework has inspired my own, Martha Minow.

(You know, I never had a sister, and my mother has been gone for more than a decade now. But I would like to give shout-out to the men in my life: my husband, Peter O’Neill, and our son, Tiernan O’Neill. Tiernan is in school today, so they had to stay at home, but they are here today in my heart.)

I am humbled, finally, to accept this award not only on my behalf, but also on behalf of my three co-editors, Kate Doty, Jaya Ramji-Nogales, and Beth Van Schaack, and, indeed, on behalf of the more than 300 women (plus a few men) who have contributed to IntLawGrrls. Those of you who are with us here today, please stand. Thank you. This award belongs to every one of you.

Even though we are all winners, our general dislike for cacophony demands that only one of us speak today. That honor falls to me, and given that this is a lunch talk, I have chosen a light and modest topic. Well, no, I’m afraid I have not. My title is, in fact, “International Law and the Future of Peace.” For this audience, it might more fittingly be called “Peace: A Feminist Project.”

As many of you know, IntLawGrrls often dedicated their contributions to transnational foremothers. Consistent with the assumption that we women are more nurturing than other humans, helena3contributors frequently chose to honor pacifist heroines. Many from this group of foremothers rode what is sometimes called the first wave of feminism – that period in the late nineteenth and early twentieth centuries when many women (plus a few men) campaigned for change. Members of this movement are best known for winning women the vote. That goal, however, was but one of several that animated them. Equally important to many of these feminists was pacifism. Theirs was an all-out quest to end war. One such campaigner was Jeannette Rankin (above). (photo credit) As a rare woman member of Congress, Rankin voted “No” on legislation by which the United States entered World War I – and twenty-three years later, World War II.

Another was Jane Addams (below), who lectured for peace and against war, and led the U.S.-based Women’s Peace Party. In 1915, Addams chaired the International Congress of Women at The Hague and became the founding President of the Women’s International League for Peace and Freedom, an organization that thrives to this day. For her efforts Addams eventually would receive the Nobel Peace Prjane-addams-3ize. (photo credit) It must be noted that despite her achievements, the American Society of International Law denied Addams’ application for membership. As chronicled in a 1974 AJIL article co-authored by Alona Evans, Addams was “invited, instead, to subscribe to the Journal ‘for the same amount as the annual dues ….’” In fact, no woman was admitted to membership until 1921, when the Constitution’s guarantee of women’s suffrage appears to have forced the Society’s hand.

It must also be noted that not every foremother was a woman of peace. Quite to the contrary. The pirate Gráinne Ní Mháille, or Grace O’Malley, was cited by me and by nearly every other Irish IntLawGrrl. Selected from Asia were Lakshmi Bai and Trưng Trắc; from Africa, Ndaté Yàlla; and from the Caribbean, Anacaona and Nanny of the Maroons. At times, each of these women resorted to combat as a means to keep her people free from conquest or exploitation.

That we IntLawGrrls chose to honor warriors and pacifists alike points to a central paradox of peace. In its purest sense, pacifism connotes opposition to violence. And surely, the human condition is advanced every time that a life-threatening attack is averted. But the absence of that sort of violence – the non-use of force, as we lawyers call it – is not, in and of itself, peace. Whenever a careful examination reveals an apparent absence of violence to be little more than a veneer that masks exploitation, there is no peace.

mlkIt is in recognition of this fact that the peacemaker who died forty-five years ago today, Dr. Martin Luther King, Jr. (left), made clear his preference not for “negative peace which is the absence of tension,” but rather for “positive peace which is the presence of justice.”  (photo credit) Similarly, a leading theorist of peace, the Norwegian sociologist Johan Galtung, distinguished attacks, which he called “direct violence,” from exploitation, which he called “structural violence.” Galtung insisted on attention to the latter as well as the former, “not only because exploitation may lead to direct violence,” but also, and perhaps most importantly, because exploitation “is violence in itself.” This fuller understanding of peace, this acknowledgment that exploitation is itself violence, poses a challenge, Galtung wrote. The challenge is to reduce direct violence – to promote the non-use of force – without simultaneously enabling exploitation. In short, there is a line to be drawn. And in our world, the task of drawing that line often falls to the shapers of international law.

We all know in broad outline the rules that govern the use of force. They appear in the foundational text of modern international law, the Charter of the United Nations. From 1945 onwards, U.N. member states promised to “settle their disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered,” and further to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” States reserved an “inherent right” of self-defense, but only “if an armed attack occurs, until the Security Council has taken measures necessary to maintain international peace and security.” We know too that at Nuremberg and in Tokyo, convicted leaders were hanged for committing aggressive war – called crimes against peace – and for the atrocities that ensued. Taken together, these developments signaled that no state would be permitted to launch an offensive attack, that none therefore would need to exercise self-defense, and that leaders who acted in violation would be punished. That legal framework ought to have put an end to war, or at least to war between states. It did not. Read Full Article

Sandwiched once again between New Year’s and the new semester is the annual meeting of the Association of American Law Schools.

imagesAmong the international/comparative/transnational law panels during the meeting – to be held January 4-7, 2013, in New Orleans – is one for which yours truly is honored to serve as commentator.

Called Human Rights in Times of Conflict, it’s the new voices panel for the AALS Section on International Human Rights, for which Quinnipiac Law Professor William V. Dunlap serves as Chair, and Mississippi Law Professor Michèle Alexandre as Chair-Elect. We’ll meet from 8:30-10:15 a.m. Sunday, January 6, in the Jasperwood Room on the 3d floor of the Hilton New Orleans Riverside to explore these thoughts:

‘The first casualty of war may be truth, but the overwhelming majority of its victims are civilians who have nothing to do with the conflict. They are victims not only of war itself – strategic bombings, terrorist attacks, accidents, famine and disease. Tens of millions more have died in the past century from intentional policies directed at civilians, often by their own governments – genocide, forced pregnancy, sterilization, enslavement, ethnic cleansing, and torture. And then there are the refugees and internally displaced persons, forced from their homes, trapped in squalor, and destabilizing international relations in Africa, Asia, and the Near East. The Geneva and Hague conventions on the law of armed conflict go only so far in protecting noncombatants, and some argue that they displace international human rights law when they do apply. This panel will examine the role of law – especially international human rights law, international criminal law, and international humanitarian law – in protecting civilians in times of armed conflict. … Topics include humanitarian intervention and the responsibility to protect, the Georgian War of 2008, human rights implications of U.S. and U.K. antiterrorism laws since 2001, and contemporary implications of Lincoln’s pardons in the aftermath of the U.S.-Dakota War of 1862.’

Panelists will be the 4 colleagues whose paper submissions were selected following a call for papers: Albany Law Professor Paul Finkelman, George Mason Law Professor Neomi Rao, Louisville Law Professor JoAnne Sweeny, and Indiana Law Professor Timothy Waters. With Dunlap moderating, I’ll will pose questions to these 4, working to draw them – and our audience – into a discussion about how these topics interweave with the overall theme. Hope to see you there.

Other offerings include Alexandra Huneeus’ prizewinning presentation, about which I previously posted, as well as a host of panels (list here) identified by the Chair of the Section on Comparative Law, Cardozo Law Professor Julie C. Suk, who’s visiting this year at Harvard. There’s  a Presidential Panel on international criminal justice, as Julie notes, and much more – to identify all, search for keywords like “international” in the pdf version of the AALS program. (photo credit)