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A responsibility to reality: a reply to Louise Arbour

Published online by Cambridge University Press:  14 June 2011

Abstract

Louise Arbour presents a pleasant picture of international society in her article on ‘Responsibility to protect’ (R2P) as a ‘duty of care’ – one where states not only have a moral responsibility but also a legal responsibility to intervene in some of the worst situations on the planet. However, this argument is misleading and based on faulty legal assumptions which pose significant problems for Arbour's case. This response will argue that upon examination, Arbour's legal case is not very strong or persuasive. Even more importantly, even if we accepted Arbour's legal arguments, it would not make much of a difference to how states respond to international crises. Arbour seems to misunderstand that the problems facing R2P have always been those of ‘will’ and not law – and this must be understood as a political rather than legal problem.

Type
Research Article
Copyright
Copyright © British International Studies Association 2010

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References

1 Arbour, Louise, ‘The responsibility to protect as a duty of care in international law and practice’, Review of International Studies, 34 (2008), pp. 445458, 445CrossRefGoogle Scholar .

2 International Court of Justice, Case Concerning the Application of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina vs. Serbia and Montenegro), General List, no. 91 (26 February 2007), available at: {http://www.icj-cij.org/docket/files/91/13685.pdf}.

3 Louise Arbour, ‘The responsibility to protect’, p. 450.

4 Ibid., p. 451.

5 Arbour, Ibid., p. 453.

6 Judgement, para. 431.

7 Although the judges argued that these charges could be reinstated with more evidence. On appeal genocide charges were issued against al-Bashir in a second warrant in July 2010. See the press release ‘Pre-Trial Chamber I issues a second warrant of arrest against Omar al-Bashir for counts of genocide’, International Criminal Court website (12 July 2010). Available at: {http://www.icc-cpi.int/NR/exeres/E9BD8B9F-4076–4F7C-9CAC-E489F1C127D9.htm}.

8 Judgment, para. 430.

9 Ibid., para. 436.

10 Specifically, the Court acknowledged: the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (Article 2); the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, of 14 December 1973 (Article 4); the Convention on the Safety of UN and Associated Personnel of 9 December 1994 (Article 11); the International Convention on the Suppression of Terrorist Bombings of 15 December 1997 (Article 15). Judgement, para. 429.

11 Judgement, para. 429.

12 1948 Convention on the Prevention and Punishment of the Crime of Genocide, Article VIII.

13 Judgement, para. 431.

14 Judgement, para. 430.

15 Bellamy, Alex J., Responsibility to Protect: The Global Effort to End Mass Attrocities (Cambridge: Polity, 2009). p. 3Google Scholar .

16 Arbour, ‘The responsibility to protect’, p. 449.

17 Bellamy, , Responsibility to Protect, pp. 99100Google Scholar .

18 Bellamy, , Responsibility to Protect, p. 100Google Scholar .

19 In speaking off-record with government officials from the UK and US familiar with this issue and in a position to know, they all remarked that their governments would not have signed the World Summit Outcome Document if they felt it created a legal obligation for their state to intervene in a crisis. Interviews conducted by the author, London/Washington 2009.

20 Evans, Gareth, ‘The Responsibility to Protect: An Idea Whose Time Has Come … and Gone?’, International Relations, 22:3 (2008), pp. 283298, 288CrossRefGoogle Scholar .

21 Bellamy, , The Responsibility to Protect, p. 90Google Scholar .

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