Vasilka Sancin Responsibility to Protect: Where Do We Stand Ten Years After? Pravna fakulteta Facultas Iuridica Responsibility to Protect: Where Do We Stand Ten Years After? Editor: Dr Vasilka Sancin Reviewers: Professor Vesna Crnić-Grotić, Faculty of Law, University of Rijeka Dr Neža Kogovšek Šalamon, Director of the The Peace Institute – Institute for Contemporary Social and Political Studies Publisher Univerza v Ljubljani / University of Ljubljana Pravna fakulteta / Faculty of Law Poljanski nasip 2 1000 Ljubljana Editorial Board Professor Miha Juhart, the President of Editorial Board Members Professor Katja Filipčič, Professor Peter Grilc, Profesor Albin Igličar, Professor Igor Kaučič, Professor Polonca Končar, Boštjan Koritnik, LL. B., Professor Jože Mencinger, Professor Marijan Pavčnik, Professor Vladimir Simič, Professor Mirjam Škrk, Professor Gorazd Trpin Index: Maruša Veber Typesetting and print: Litteralis Ltd Volumes printed: 300 Price: 48,00 EUR Published in April 2015, Ljubljana 1st Edition Copyright © 2015 by Pravna fakulteta, Univerza v Ljubljani All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law. &,3.DWDORæQL]DSLVRSXEOLNDFLML 1DURGQDLQXQLYHU]LWHWQDNQMLæQLFD/MXEOMDQD 341(082) 5(63216,%,/,7<WRSURWHFWZKHUHGRZHVWDQGWHQ\HDUVDIWHU">HGLWRU@9DVLOND6DQFLQ VWHG/MXEOMDQD3UDYQDIDNXOWHWD )DFXOW\RI/DZ ISBN 978-961-6447-49-2 6DQFLQ9DVLOND 279019008 TABLE OF CONTENTS FOREWORD 8 INTRODUCTION 10 LIST OF ABBREVIATIONS 12 ABOUT THE EDITOR 19 NOTES ON CONTRIBUTERS 20 PART I: R2P AFTER 10 YEARS: POTENTIALS AND LIMITATIONS 25 Chapter 1: TEN YEARS AFTER THE WORLD SUMMIT WHAT HAS R2P ACHIEVED? (Aidan Hehir) 27 Chapter 2: R2P: RIP? (Olivier Ribbelink) 43 5 Chapter 3: THE EXPANDING USE OF MEASURES LESS THAN FORCE UNDER R2P (Stacey Henderson) 53 Chapter 4: THE ICC & R2P: SHARED GOALS AND SHARED POLITIZATION (Don Wallace) 69 Chapter 5: THE EUROPEAN ARREST WARRANT AS A REGIONAL TOOL CONTRIBUTING TO RESPONSES TO R2P ATROCITIES (Marina Žagar) 87 Chapter 6: CAN NATIONAL R2P FOCAL POINTS MOVE R2P FROM A CONCEPT TO A NORM? (Marko Rakovec) 107 Chapter 7: R2P AND THE ‘THIN COSMOPOLITAN’ IMAGINATION (Tor Dahl-Eriksen) 123 Chapter 8: RESPONSIBILITY TO PROTECT AND LEGAL VALUE OF THE UN SECURITY COUNCIL PRESIDENTIAL STATEMENTS (Tatjana Milić) 143 Chapter 9: NEW PERSPECTIVES FOR THE RESPONSIBILITY TO PREVENT: REDUCING GENDER INEQUALITY AS A MEANS TO REDUCE THE RISK OF MASS ATROCITIES (Serena Timmoneri ) 155 6 PART II: R2P IMPLEMENTATION IN EUROPE 172 Chapter 10: ON A SELECTIVE APPROACH TO THE IMPLEMENTATION OF THE R2P CONCEPT (Vladimir Kotlyar) 173 Chapter 11: CONSTITUTIONAL DILEMMAS OVER RESPONSIBILITY TO PROTECT IN THE REPUBLIC OF POLAND (Tomasz A. Lewandowski ) 183 PART III: R2P AND SYRIA 203 Chapter 12: A GRIM NECESSITY: WHY R2P STYLE MILITARY INTERVENTION IS JUSTIFIED IN SYRIA (Mia Swart) 205 Chapter 13: NATO (IN)ACTIONS IN SYRIA? (Daniel Silander) 223 Chapter 14: R2P AND THE CHEMICAL ATTACK ON GHOUTA – A MORAL-POLITICAL GAME-CHANGER (Birthe Thykier Møller) 243 PART IV: R2P AND AFRICA 265 Chapter 15: THE RESPONSIBILITY TO PROTECT: BRIDGING THE GAP BETWEEN THEORY AND PRACTICE IN AFRICA (Swikani Ncube) 267 Chapter 16: AFRICAN UNION’S IMPLEMENTATION OF THE THREE R2P PILLARS (Maruša Veber ) 285 Chapter 17: MISSING IN ACTION: THE SECURITY COUNCIL AND THE RESPONSIBILITY TO PREVENT MASS ATROCITIES IN CENTRAL AFRICA (Spencer Zifcak) 302 Chapter 18: ASSESSING THE LIMITS OF THE RESPONSIBILITY TO PROTECT: THE CASE OF WESTERN SAHARA ( Jeffrey J. Smith) 327 PART V: CHINESE NOTION OF RESPONSIBLE PROTECTION 347 Chapter 19: THE CHINESE NOTION OF ‘RESPONSIBLE PROTECTION’ – DISTRACTION OR CONTRIBUTION? (Philipp Janig) 349 Chapter 20: ‘RESPONSIBLE PROTECTION’: CHINA’S VOICE IN THE DISCOURSE ON R2P-INTERVENTION (Pak K. Lee) 365 Chapter 21: SMOULDERING SITUATIONS: APPLYING THE RESPONSIBILITY TO PROTECT TO THE SITUATION IN TIBET ( John Gaudette) 375 BIBLIOGRAPHY 393 INDEX (Maruša veber) 462 7 Chapter 2: R2P: RIP? Olivier Ribbelink 1. INTRODUCTION It is no exaggeration to state that the R2P concept, immediately upon its official, formal introduction in 2001 by the International Commission on Intervention and State Sovereignty (hereinafter ICISS),1 was enthusiastically and widely embraced by many, though not all, academics, perhaps a little less by politicians, but most certainly by civil society and public opinion. It appeared that the general public was already convinced, or rather mistakenly believed, that an obligation to act in emergency situations already existed well before that, and that in case it did not, it should have existed. The ICISS Report perfectly fitted the Zeitgeist, after having witnessed events such as Rwanda in 1994, Bosnia (Srebrenica) in 1995, Kosovo in 1999, but also the aftermath of natural disasters. However, for the international system, in particular for the UN as a collective security system, with the UNSC as the (political) organ with primary responsibility for the maintenance of international peace and security (Article 24.1 UN Charter), R2P posed a fundamental problem. Even though R2P focused on the primary responsibility of states to protect their own populations, and on the responsibility of states to prevent atrocities from happening in other states, by assisting states to fulfil that primary responsibility, whereby the use of force was a legitimate last resort, that is, an ultimum remedium, the latter received most attention. Not surprisingly, this was interpreted as a potential threat to the monopoly of the UNSC as regards the authorization of the use of force against a state, with, again potentially, significant consequences for state sovereignty. R2P was perceived as an instrument, notwithstanding that as such it lacked any legal significance, that would possibly allow states, unilaterally or collectively, to self-authorize intervention in a Senior Researcher, T.M.C. Asser Instituut, The Hague, the Netherlands, o.ribbelink@asser.nl. 1 The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty, Ottawa, 2001. For a discussion of the (early) development of R2P, see e.g. Carsten Stahn, ‘Responsibility to Protect: Political Rhetoric Or Emerging Legal Norm?’, 101 AJIL 99 (2007); Luke Glanville, ‘The Responsibility to Protect beyond Borders’, 12 Human Rights Review 1 (2012), pp. 1-32. 43 third state, when they were convinced that they had a shared, collective, responsibility to protect a population at risk in a situation where that third state is unable and/ or unwilling to protect its population. From the perspective of the primacy of the UNSC, this focus on the use of force was quite understandably disturbing. The moves to at least ‘disarm’ this potential threat were not very long in the waiting. 2. DISMANTLING THE POTENTIAL THREAT OF R2P 44 The 2004 High-Level Panel Report2, the 2005 World Summit Outcome Document3, and the 2009 Report of the UNSG4, effectively dismantled the threat. The now well-known three pillar strategy was introduced whereby pillar one refers to the responsibility of the state to protect its population from genocide, war crimes, crimes against humanity, and ethnic cleansing, pillar two is about international assistance and capacity-building, and pillar three is concerned with timely and decisive response when a state is manifestly failing to provide protection to its population. Measures taken as ‘timely and decisive response’ must in all circumstances be in accordance with the UN Charter, that is, primarily with the non-coercive and nonviolent measures under Chapter VI (Pacific Settlement of Disputes) and Chapter VIII (Regional Arrangements). And in exceptional situations, measures can be taken under Chapter VII, that is, measures not involving the use of force (Article 41), or, when those are considered to be inadequate, involving (the authorization of ) the use of force “as may be necessary” (Article 42). This reaffirmed the pivotal position of the UNSC and safeguarded state sovereignty, as well as the integrity of the UN-system. Interestingly, at the same time, but in a sort of round-about way, it strengthened the concept of R2P as such.5 The international community had emphasized once again the unacceptability of the international crimes of genocide, war crimes, and crimes against humanity, e.g. as specified in the Statute of the ICC. Ethnic cleansing is not (yet) as clearly laid down in international (binding) instruments as the other three crimes, but it is generally 2 A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (2 December 2004). 3 UNGA Resolution 60/1, 2005 World Summit Outcome, UN Doc. A/RES/60/1 (24 October 2005) esp. paras. 138 and 139. 4 Report of the UNSG, ‘Implementing the Responsibility to Protect’, UN Doc. A/63/677, 12 January 2009. 5 Cf. Lisa-Marie Komp, ‘How the Responsibility to Protect Influences the Security Council’s Powers, Limits and Dynamic’, 4 Journal of International Humanitarian Legal Studies (2013), pp. 315-353. recognized as a serious human rights violation that can contribute to, that is, be a component of, genocide. Having said that, in a number of crisis situations the UNSC did mention and/or refer to R2P.6 But the only decision of the UNSC under Chapter VII to authorize the use of force, invoking R2P principles, was in 2011 in the Libya crisis. The intervention in Libya was founded on UNSC Resolutions under Chapter VII, which referred to the failure of the Gaddafi government to protect the Libyan people. However, the explicit authorization in UNSC Resolution 1973 (2011)7, in a follow-up on UNSC Resolution 1970 (2011)8, to use all necessary means to protect the civilian population, appeared to be interpreted and implemented by NATO Member-States, in particular the UK, France, and the US, who were jointly taking the lead, as a mandate to achieve regime change. This, not surprisingly, resulted in fierce opposition, not to say anger and indignation, first and foremost of the Russian Federation (hereinafter RF) and to a lesser extent of China. Both states had abstained in the vote, while declaring that this authorization should not be seen as constituting a precedent for any future situation.9 The RF in particular repeatedly stated very clearly that it felt mislead, even cheated and tricked, by the Western powers. Clearly, the RF and China had not forgotten that NATO Member States, without a UNSC mandate, carried out a seventy-seven days air-campaign on Serbia in 1999 during the Kosovo crisis.10 Earlier both states had expressed similar concerns in the debates on other ‘situations’, such as Darfur.11 6 E.g. Darfur (2006), Cote d’Ivoire (2011), Yemen (2011), Mali (2012 and 2013). 7 UNSC Resolution 1973 (2011), 17 March 2011. The preamble inter alia states ”Reiterating the responsibility of the Libyan authorities to protect the Libyan population and reaffirming that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians.” 8 UNSC Resolution 1970 (2010), 26 February 2011. 9 Then again, it could be argued that by not using their veto, both states had been instrumental in the adoption of the referral to the ICC of the most principal figures in the regime, thus implicitly accepting its possible paralysis. 10 The NATO military intervention was later described as illegal but legitimate. “It was illegal because it did not receive prior approval from the [UNSC]. However, the Commission considers that the intervention was justified because all diplomatic avenues had been exhausted and because the intervention had the effect of liberating the majority population of Kosovo from a long period of oppression under Serbian rule.” See The Independent Commission on Kosovo, ‘The Kosovo Report: Conflict, International Response, Lessons Learned’, Oxford University Press, 2000, p. 4. 11 In the deliberations about Darfur also States such as Cuba, Iran, North Korea, Pakistan, Sudan and Venezuela voiced concerns that R2P could be abused to justify humanitarian intervention. 45 The consequence of the developments described above, and an inevitable conclusion, is that R2P as a political tool, in the sense of an instrument that can be deployed to intervene with the use of force in an emergency situation, has effectively been neutralized. This was, and still is, illustrated by the on-going civil war in Syria, where the UNSC is unable to adopt coercive measures, particularly because of the opposition of the two above-mentioned permanent members, but also because of the concerns of other states.12 Clearly the situation on the ground has also become significantly more complicated. The advent of ISIS/Islamic State has ‘expanded’ the civil war into a much more wide-spread conflict across national borders. The only ‘permissible’ military intervention takes place in Iraq, because the government of Iraq has given its explicit consent. But for intervention on the territory of Syria to assist the population, UNSC authorization is required and that cannot be attained, because of the veto by the RF and China, which as such is at least in part the result of the intervention in Libya. The result is widespread indignation and anger that “the world” is not intervening in Syria, in a situation where the State is so obviously not protecting its population, rather on the contrary. 46 3. R2P: DEAD OR ALIVE? Another consequence has been that R2P continues to be the subject of heated debate. In fact, the debate to a great extent turns around the question whether R2P still makes sense, or whether the once so enthusiastically welcomed and highly esteemed concept has turned out to be illusory and has lost its relevance. That is, whether R2P is dead13 or –still- alive, and if so, in what condition? Virtually every contribution to the debate focuses on the possibilities and impossibilities to respond adequately to major (humanitarian) crises and/or catastrophes, thus not limited to the Syrian crisis. And, almost inevitably, that is, according to the respective authors’ 12 Cf. Thakur: “Although successful, the Libyan operation proved particularly controversial among the emerging powers, and the price of exceeding the mandate there has been paid by Syrians.”, Ramesh Thakur, ‘R2P after Libya and Syria: Engaging Emerging Powers’, The Washington Quarterly, 36:2, pp. 61. Also see e.g. Mark V. Vlasic and Peter Atlee, NATO And The Responsibility to Protect: Inconsistent But Indispensable, Vasilka Sancin and Masa Kovic Dine (eds.), Responsibility To Protect In Theory And Practice, Papers presented at the Responsibility to Protect in Theory and Practice Conference, Ljubljana, April 11-12, 2013, Založba, 2013., pp. 445-469; Paul R. Williams, J. Trevor Ulbrick and Jonathan Worboys, ‘Preventing Mass Atrocity Crimes: The Responsibility To Protect And The Syria Crisis’, 45 Case Western Reserve Journal of International Law issues 1&2 (2012), pp. 473-503. 13 A quick Google search for > R2P dead < results in around 19.900.000 results (in 0.26 seconds) of which, obviously, many are duplications and a great many more are student theses. views and their disciplines, conclusions differ. Authors with a political science and/ or international relations background14 tend to present other analyses and insights than authors who focus more on human rights.15 An analysis of recent crises and events16 is likely to result in different conclusions and recommendations about the value of and the prospects for R2P, than theoretical and/or philosophical studies of underlying value-systems17. Not to mention ’realist’ versus ‘idealist’ approaches. There are some who conclude that R2P is dead18, others are still in doubt19, yet others remain hopeful.20 And while it is undoubtedly true that there is much to be said for the conclusion that the international community has failed to act, that R2P did not ‘work’ in the Syria crisis, and that the options to intervene on the basis of the third R2P pillar have been reduced to the classic ways of authorization of the use of force by the UNSC21, overall, one cannot but note, most authors tend to (various degrees of ) optimism about R2P. And there are indeed arguments not to give up and to move forward, albeit that these vary greatly. Thakur, for example, gives three reasons for the need to engage the so-called emerging powers, many of whom had great problems with the Libya intervention. First, external interventions are not guaranteed in the future and the choice is not if 14 E.g. John Wester and Joshua Goldstein, ‘R2P After Syria. To Save the Doctrine, Forget Regime Change’, Foreign Affairs, March 26 2013 <http://www.foreignaffairs.com/articles/139080/jonwestern-and-joshua-s-goldstein/r2p-after-syria> accessed 8.2.2015. 15 E.g. Emma McClean, ‘The Responsibility to Protect: The Role of International Human Rights Law’, 13 Journal of Conflict and Security Law (2008), No 1, pp. 123-152. 16 Such as e.g. Williams, Ulbrick and Worboys, ‘Preventing Mass Atrocity Crimes: The Responsibility To Protect And The Syria Crisis’ (n 12). 17 E.g. Jonathan Graubart,’ R2P and Pragmatic Liberal Interventionism: Values in the Service of Interests’, 35 Human Rights Quarterly (2013), pp. 69-90. 18 E.g. Michael Newton, ‘R2P is dead and done due to response to Syria’, Vanderbilt University Law School <http://www.vanderbilt.edu/jotl/2013/09/newton-%E2%80%9Cr2p-is-dead-anddone%E2%80%9D-because-of-response-to-syria/>accessed 19.1.2015. 19 E.g. Stewart Patrick, ‘RIP for R2P? Syria and the Dilemmas of Humanitarian Intervention’, Council on Foreign Relations <http://blogs.cfr.org/patrick/2012/06/12/rip-for-r2p-syria-and-thedilemmas-of-humanitarian-intervention/> accessed 8.2.2015. 20 E.g. Carsten Stahn and Catherine Harwood, ‘Why Reports about the “Death of R2P’ May be Premature: Links between the Responsibility to protect and Human Rights Fact-Finding’, European Society of International Law, Reflections Vol. 3, Issue 5, May 22, 2014; and Thakur ‘R2P after Libya and Syria: Engaging Emerging Powers’ (n 12), p. 61: “(…), it would be premature to conclude that R2P can be branded “RIP”.” 21 For practical reasons a discussion of the relevance of the ‘Uniting for Peace’-mechanism, although interesting and possibly also timely, is omitted. 47 intervention but whether intervention will be ad hoc or rules-based, and that “[t]hus, the international community should prepare itself normatively, organizationally, and operationally to deal with humanitarian crises rather than bury its head and belatedly make up responses when crises inevitably happen.” Second, the R2P debate should not become a North-South issue. This is all the more important because “[t]hird, the realities are that the only likely sites and targets of intervention in the foreseeable future will be developing countries.” Therefore “engaging the emerging powers on developing the criteria for, and conduct of, R2P interventions (…) are in the mutual interest of the emerging powers themselves and all those who support the principle of R2P to protect the world’s population from genocide, war crimes, ethnic cleansing and crimes against humanity.”22 48 Others emphasize the possibilities and needs to strengthen the prevention aspects of the first and second pillars. Rosenberg thinks that the strengthening of due diligence obligations based on the realization that for states the duty to protect is the mirror image of the duty to prevent, and that “[t]he due diligence standard – to take reasonable measures to prevent violations in so far as possible in international practice, (…) reflects a nascent, yet developing trend in international law toward the acceptance of a positive obligation to prevent mass atrocities under certain circumstances.”23 Stahn and Harwood focus on the development of (human rights) fact-finding, which can function both as a mechanism to implement and strengthen R2P, and vice-versa. Examples of which can be found in the practice of UN commissions of inquiry, notwithstanding their sometimes limited mandates.24 Another interesting and stimulating approach is given by Justin Morris who claims that the debate over Libya exaggerates the role of R2P in the UNSC deliberations and decision, that “NATO’s chosen means of implementing its UN mandate has been seized upon by those sceptical towards R2P in order to delegitimize the concept”, and that because the prospects for future invocations of R2P for intervention by force are now significantly diminished, the international standing of R2P can best be preserved by taking out the most coercive elements and to reconstitute R2P as “a standard of acceptable sovereign behaviour and a mechanism geared towards the provision of international guidance and support, while decisions over coercive 22 Thakur ‘R2P after Libya and Syria: Engaging Emerging Powers’ (n 12), pp. 62-63. 23 Sheri P. Rosenberg, ‘Responsibility to Protect: A Framework for Prevention’, Global Responsibility to Protect 1 (2009), pp. 476-477. 24 Cf. Stahn and Harwood, ‘Why Reports about the “Death of R2P’ May be Premature: Links between the Responsibility to protect and Human Rights Fact-Finding’ (n 20). military intervention, inevitably infused with considerations of strategic interest, should be made outside the R2P framework.”25 4. IMPACT AND PROSPECT It is obvious that the impact of the R2P concept has not diminished. Notwithstanding that at the time of its introduction it was primarily a ‘new’ theoretical underpinning, with ‘norm-creating’ intentions, of the conditions and situations in which intervention involving the use of force was permitted, or perhaps even required.26 That was how it was intended, and that is how it has been perceived. Even though States have had second thoughts, and/or became somewhat reluctant when they realized the significance and potential implications of what initially was welcomed, the impact new ideas and concepts can and often do have, may become a force of its own. And that impact is sometimes underestimated. Many states, both in the framework of the UN, as well as in other contexts, have very regularly and consistently spoken out in favour of the R2P concept, as well as emphasized the necessity to act in emergency situations. There are Annual Reports by the Special Advisor to the UNSG on the Responsibility to Protect, as well as Annual Reports by the UNSG27, which are discussed both formally and informally in the UNGA. There are interesting initiatives to further institutional capacities at national, regional and international levels, undertaken by States as well as by an increasing number of NGO’s. In particular should be mentioned the National R2P Focal Points, an initiative taken in 2010 by the governments of Denmark and Ghana, in collaboration with the Global Centre for the R2P, a New York based NGO.28 They were later joined by the governments of Australia and Ghana, and have organized Four Meetings of the Global Network of R2P Focal Points. 25 Justin Morris, ‘Libya and Syria: R2P and the spectre of the swinging pendulum’, 89 International Affairs 5 (2013), pp. 1265-1266. 26 Cf. Robert W. Murray, Conclusion: The Responsibility to Protect after Libya, in Robert Murray and Aidan Hehir (eds.), Libya, the Responsibility to Protect and the Future of Humanitarian Intervention, Palgrave Macmillan, 2013, p. 228, who writes: “R2P is inherently a doctrine of intervention, despite what some off its cleverest advocates say about prevention or normative development.” 27 The most recent (sixth) UNSG report dates from July 2014: Report of the UNSG, ‘Fulfilling our collective responsibility: international assistance and the responsibility to protect’, UN doc. A/68/947-S/2014/449 (11 July 2014) 28 Global Centre for R2P <http://www.globalr2p.org/> accessed 8.2.2015. 49 The first two Meetings were held in New York in 2011 and 2012, the third in Accra, Ghana (2013) was jointly organized by Ghana and Denmark, and the fourth in June 2014 in Gaborone, Botswana, co-hosted by Botswana and the Netherlands. It is illustrative that in this last Meeting more than 30 States from six continents participated, as well as the present UN Special Adviser on the Responsibility to Protect, Dr. Jennifer Welsh.29 In this connection must also be mentioned that the very first Regional R2P National Focal Points Meeting was hosted by Slovenia, again in association with the Global Centre for the R2P, in Ljubljana, on 10-11 April 2013, not entirely coincidental with the first R2P Conference held at the University of Ljubljana. There were representatives of more than 30 States, international and regional organizations and NGO’s. Special guest at both events was the Special Adviser on the Prevention of Genocide, Mr. Adama Dieng,30 while former UN Special Adviser on the Responsibility to Protect, Dr. Edward C. Luck, spoke as a guest of honour at the conference gala dinner. 5. CONCLUSION 50 The conclusion cannot be other than that even though there may still be disagreement about the precise meaning and the practical application of R2P, there is general agreement that R2P exists. That holds true for States, international organizations, particularly the UN, for NGO’s, and for the general public. Or even for the ICJ and the International Law Commission (ILC), for that matter.31 There is an undeniable normcreating effect of R2P, and it is evolving towards a moral obligation for international actors, if it hasn’t already done so. As Peter Hilpold writes, recalling what the evolution of the right to self-determination demonstrates, “(…), political rhetoric can solidify to legal principles and even if they remain vague and prone to be abused by opposed camps some consensual line will emerge over time.”32 29 For a summary of the Fourth Meeting of the National R2P Focal Points, see <http://www. globalr2p.org/media/files/r2p-focal-points-2014-meeting-summary-1.pdf > accessed 8.2.2015. 30 Regional R2P National Focal Points Meeting for Europe, Ljubljana 2013, <http://www.mzz.gov. si/fileadmin/pageuploads/Mednarodno_pravo/Chairman_s_Summary__19.4.2013.pdf> accessed 8.2.2015. 31 Glanville, ‘The Responsibility to Protect beyond Borders’ (n 1), finds an albeit limited legal basis for the notion that there is a responsibility to protect beyond borders, for States and perhaps even international organizations in the ICJ Judgment Bosnia v. Serbia and in the work of the ILC on the Responsibility of international organizations, p. 4 and pp. 15-31. 32 Peter Hilpold, ‘Intervening in the Name of Humanity: R2P and the Power of Ideas’, 17 Journal of And Sir Robert Jennings, in 1996 quoting himself from a 1964 article, points to “the persistent assumption that the great need of international law is for some procedures for legislation; and the resulting tendency to look for and therefore to find what may be called statute-substitutes, more especially in treaties: is it possible that this search for the statute-substitute has obscured from us not only that international law may develop law-making processes of a quite different kind but even that this development is happening under our very eyes?”33 The understandable focus by the UN and the UN member States on the legal underpinnings of R2P, in particular in respect of the legality of intervention by the use of force, has not prevented R2P from having gained a reputation and significance. Probably because R2P after all provides a coherent approach which, as a matter of speech, can in principle be applied to virtually all humanitarian crisis situations, past, present and future, whether man-made or natural. Thus, while the 2001 report by the ICISS listed six ‘conscience-shocking situations’ that would satisfy the ‘just cause’ requirement, of which the sixth and last was ‘overwhelming natural or environmental catastrophes, where the state concerned is either unwilling or unable to cope or call for assistance, and significant loss of life is occurring or threatened’34, R2P, as it stands at present, does no longer include natural catastrophes. However, notwithstanding that R2P, as described above, nowadays only refers to protection of populations from the crimes of genocide, war crimes, ethnic cleansing and crimes against humanity, it can be argued that it will prove untenable to deny the “applicability” of R2P as a concept, as a principle, if not an obligation, in such situations.35 Not because such a catastrophe will trigger R2P as it is conceived of today, since this does not fall under one of the four serious crimes, Conflict & Security Law (2012), p. 79. 33 Sir Robert Jennings, quoting from 13 ICLQ (1964) p. 388, in International Lawyers And The Progressive Development Of International Law in Jerzy Makarczyk (ed.), Theory Of International Law At The Treshold Of The 21st Century, Essays in Honour of Krzysztof Skubiszewski, Kluwer Law International, 1996, p. 413. 34 Report of the International Commission on Intervention and State Sovereignty (n 1), Chapter 4, at p. 33. Examples would be the aftermaths of the earthquake in Haiti in 2010 and of Hurricane Nargis in Myanmar in 2008. 35 E.g. the author did argue this in a presentation at the 2013 R2P Conference in Ljubljana, but failed to convey clearly to the audience that this does not mean that natural catastrophes will return in the list of serious crimes that can trigger R2P (which was what the audience appeared to have heard), but just the opposite: the R2P concept will inevitably be invoked by public opinion in any debate about how to deal with a ‘conscience-shocking’ crisis or catastrophe. 51 but the other way around. Public opinion, civil society, will insist on intervention, thus for all practical purposes ‘invoking’ R2P. To conclude with a paraphrase of a famous quote by Mark Twain, the report of the death of R2P is an exaggeration.36 52 36 There exist many variations of his “report of my death” quote. The original is “(…), the report of my death is an exaggeration” and comes from a note written in May 1897, reproduced at Mark Twain quotes <http://www.twainquotes.com/Death.html> accessed 8.2.2015.