Research in Politics & International Relations

The Responsibility to Protect, to Prosecute or to Feed: Evaluating the Interaction of Normative Frameworks

Investigator: Kurt Mills
Funded by: British Academy
Date: September 2007 – December 2009

The context for this research is the broad edifice of international law and related norms which has developed to define the responsibilities of various parties to respond to gross violations of human rights. This involves three normative frameworks – the responsibility to feed, the responsibility to prosecute, and the responsibility to protect (R2P). The first encompasses norms and practices which create an expectation for, and govern, the provision of humanitarian assistance to, and protection of, refugees and others affected by conflict. The war crimes tribunals for the Former Yugoslavia and Rwanda stimulated a renaissance in international justice and set the stage for the development of international norms and international institutions designed to prosecute those who commit war crimes, crimes against humanity, and genocide. Finally, although the issue of humanitarian intervention is not new, concrete calls for institutions like the UN or NATO to intervene militarily in situations of genocide and other gross violations of human rights have only become widespread – and, indeed, even remotely likely to be heeded – over the last 15 years or so. The 2001 report by the International Commission on Intervention and State Sovereignty on the ‘Responsibility to Protect’ gave more concrete voice to this so-called ‘never again’ norm. Four years later, the UN member states gathered at the 2005 World Summit recognized the normative legitimacy of the responsibility to protect, albeit with reservations and caveats.

Thus, a large body of international law and less legally-binding international norms are in place to delimit the responsibilities of states and the broader ‘international community’ when states do not live up to their responsibilities to treat their populations in accordance with human rights norms. These laws and norms, however, vary significantly in their binding qualities. There is a vast difference between the jus cogens prohibition on genocide as expressed in the Genocide Convention and the nascent R2P norm agreed to at the World Summit. One is settled international law, the other is a vaguely expressed idea which is frequently not acted upon in a meaningful way. Other human rights norms fall somewhere in between these two. The Rome Statute and much other international and domestic legislation and case law and institutions with respect to international justice (such as the exercise of universal jurisdiction) represent the more codified – and practiced – side of human rights norms (although there is still much dispute about what they mean in practice). The recognition of an R2P by the member states of the UN with no treaties to delimit actual required behaviour on the behalf of these member states (with the possible exception of the Genocide Convention) represents a much more immature stage of normative development. States are normatively expected to take action to stop genocide, but ICC member states are legally required to cooperate with the ICC. This does not mean that the R2P is not perceived as a legitimate norm. That the United States used such arguments to try to justify its invasion of Iraq indicates that it is perceived as legitimate by the target audience of those arguments – other states – even if state practice – and thus evidence for the norm as customary international law – has not robustly followed suit. Rather, it means that the political force of the norm is still very weak. In addition, the fact that the R2P may require much more of a state than international justice norms – putting one’s citizens in harm’s way during an intervention vs. arresting accused genocidaires and sending them to the Hague – may also impact the practical application of a norm.

One might ask whether state practice is linearly related to the legally binding character of the norms in question. It would seem not, and this project will investigate this question and the extent to which one or more of these normative frameworks may affect state action vis a vis another normative framework. While one might assume that all human rights norms might be mutually reinforcing, they may be contradictory or undermine other human rights and related norms. Thus, one possible set of interactions between the norms might be a situation where the R2P generates expectations to act, but states have recourse to international justice or humanitarianism because these, too, are strong norms and require less of states.

These questions are thus at the interstices of law and politics, of theory and practice. This project will investigate how these three interrelated sets of international norms interact, teasing out complicated relationships between legal requirements and normative expectations, state self-interest and pressures to conform to external presumptions of state action. It will be situated in the current theoretical debate between interest-based (rationalism) and norms-based (constructivism) accounts of state international behaviour, aiming to integrate these two explanations. I will examine the international community’s response (in the form of the US and other Western powers) to five recent conflicts which have involved widespread human rights violations and varying levels of international response – Bosnia, Rwanda, Uganda, the Democratic Republic of Congo, and Darfur. By mapping the interests, expectations, and responses to these human rights catastrophes, this project will illuminate under what conditions a particular response may be expected, thus indicating when one set of human rights norms may have greater force than another, or when they may all fall at the feet of sovereignty or other perceptions of self-interest. Focusing on the response of Western powers is justified because, first, they will have the power to instigate and carry out the expected behaviour, and, second, their democratic characteristics mean that they would be more open and liable to such normative arguments – indeed, their democratic, human rights-protecting self-perceptions will have the greatest level of coherence with these international norms.