by Amrita Shivaprasad*
Does recognition of the Responsibility to Protect [“R2P”] by states, routinely violating human rights change the meaning of the customary obligation being created? Can virtually uniform state practice leading to the formation of custom be based on more violations of a norm than compliance with it by a state? Or is there a lack of opinio juris while committing human rights violations, resulting in the consequence that these acts cannot be considered in the formation of custom?
Rudiger Wolfrum opines that determination of custom is not by those who practice it or showcase the opinio juris to do so; it is up to the judges, arbitrators, and states who want to apply it. It is they who have to find the right mix of what the states say and do, and what the states believe. With the increase in the number and frequency of states’ appearance before multilateral forums, the quantity of ’states’ inconsistent actions and words have multiplied, making the determination of customary norms variable and uncertain.
What is R2P?
This blog post attempts to disillusion the determination of the R2P as a norm of customary international law. The term R2P was coined by the International Commission on Intervention and State Sovereignty [“ICISS”] set up by Canada in September 2000. The intention was to create a duty on sovereigns/states to prevent, react and rebuild in the face of atrocities, being experienced by a population under a different sovereign, through non-coercive means. It was adopted at the 2005 World Summit Report by the General Assembly without a vote on 15 September 2005 where at para 138 and 139, it read that each state has the responsibility to protect its population from war crimes, crimes against humanity, genocide and ethnic cleansing, and other states have the responsibility in assisting the said state in carrying out its responsibility.  As written by the then Secretary General Ban Ki-moon, R2P is not a violation of sovereignty, it is an extension of the same. In other words, a state when unable or unwilling to protect its citizens from atrocities loses its sovereignty to that extent. It is to that extent of lost sovereignty over its citizens does another state extend its support under the R2P principle. As a result, the state lending its support is doing it as an obligation as a sovereign to protect rights of people who have no sovereign to protect them.
Is R2P a customary norm?
The character of the crystallizing customary norm of R2P can then be analysed through states’ practice and their opinio juris. Qatar, which in May 2015 was condemned by the Office of the High Commissioner for Human Rights for its acts of torture, discrimination, and abuse of women, among others, has appointed an R2P focal point, an official responsible for promoting R2P at a national level, making it one of the 49 states to be part of Group of Friends of the Responsibility to Protect. South Sudan, a state as a result of a series of armed conflicts is now facing famine, instead of upholding R2P or allowing the UN mission, UNMISS, to protect its people, South Sudan is focusing on an arms race. This, as summarized by the United Nations Humanitarian Chief, Stephen O’Brien’s reads that “Parties to the conflict are Parties to the famine – as are those not intervening to make the violence stop.”
The invasion of Iraq, in 2003, ultimately led to the rise of the Islamic State. Civilians, attempting to avoid the atrocities by fleeing the state, have been denied refugee status by the same states who invaded Iraq and who recognize the R2P principle. The latest instance is that of Yemen, where states that passed a Security Council resolution invoking the Responsibility to Protect, have continued to support assistance in committing War Crimes in Yemen.
The above examples indicate the states that uphold the norm of R2P within the closed doors of international organizations, are also the ones which violate human rights that warrant the existence of such a norm. A state that is committing atrocities cannot be said to be doing it in the absence of opinio juris, as the acts are consciously committed in violation of other international obligations the state may have. A state that continues to commit the atrocity repeatedly cannot be claimed to have opinio juris under the presumption that it believes its acts to be in violation of the norm.
In fact, the International Court of Justice has opined that overwhelming state practice implies opinio juris culminating into custom. This would mean that if states continue to commit atrocities but simultaneously claim to recognize the legal obligation of the R2P, then a customary norm of R2P applicable selectively and narrowly will develop. For instance, the Myanmar’s military regimes failure to assist the population from damage from the Cyclone Nargis or allow other states to assist was argued to be a case of R2P by the Foreign Minister of France. The world community did not agree with this view and refrained from invoking R2P. However, it does not eliminate the fact that a failure to respond to a humanitarian catastrophe occurred which led to the death of more than 138,000 civilians and proportional damage to civilian property. In retrospect, the world community while searching for a mechanism to deal with such situations would naturally create and attempt to evolve many other such norms.
Attempting to fill the gaping hole?
One such creation has already begun with the norm of Responsibility while Protecting [“RwP”], as suggested by Brazil in 2011, in light of the NATO intervention in Libya. RwP is explained through a set of guidelines which mandates that the use of force by protecting states should be in accordance with humanitarian principles such as necessity, proportionality and so on.
Such a norm creation is called for only due to the varied interpretation of R2P. Multiple norm creation will only lead to chaos and confusion, and the pace of evolution of these norms as customs will not keep up with the atrocities. For these reasons, it is imperative that states come together to codify the meaning, mode, and manner of implementation of the Responsibility to Protect than allow it to be determined as a norm of customary international law that may be applied by a party, to a dispute, to its advantage.
This leads to a question why would a state enter into a treaty when it doesn’t have the intention to do the act as state practice. States’ disagreement is not regarding the existence of the norm, but the application of it which states, according to their convenience, they interpret differently with every instance of practice. By codifying the norm, states’ liberty in applying the norm as per their convenience will be eliminated. This mandates that the norm be codified.
[*Amrita Shivaprasad is a fourth-year student at National Law University, Jodhpur, and is one of the founding members of the Centre for Policy and Research in International Law. Public International Law is the epicenter for her interests. She is an ever curious, enthusiastic learner with a passion for sports and an obsession for organisation. You can contact her at firstname.lastname@example.org.]
 Customary International Law, Ed. Rüdiger Wolfrum, MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW, Oxford University Press, 2013, Vol II, p 937.
[2 ]The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty, December, 2001, available at http://responsibilitytoprotect.org/ICISS%20Report.pdf.
 Id., p 17.
 United Nations, General Assembly, 2005 World Summit Outcome, A/60/L.1, para 138, 139 available at http:// responsibilitytoprotect.org/world%20summit%20outcome%20doc%202005(1).pdf.
 United Nations, General Assembly, Implementing the Responsibility to Protect, Report of the Secretary- General, January 2009, A/63/677, p 7, 22 available at http://responsibilitytoprotect.org/SGRtoPEng%20(4).pdf.
 Qatar’s cynical support could make a mockery of the Responsibility to Protect, 21 October, 2015, available at http://theconversation.com/qatars-cynical-support-could-make-a-mockery-of-the-responsibility-to- protect-48534; Qatar Will Spare No Effort In Persecuting Perpetrators Of Crimes In Syria, MOFA Secretary- General Says, 24 April, 2017, available at https://www.mofa.gov.qa/en/all-mofa-news/details/2017/04/24/qatar- will-spare-no-effort-in-persecuting-perpetrators-of-crimes-in-syria-mofa-secretary-general-says; Reports of the Office of UN High Commissioner for Human Rights on Qatar are available at http://www.ohchr.org/EN/ Countries/MENARegion/Pages/QAIndex.aspx.
 Despite the August 2015 peace agreement, ongoing armed conflict in South Sudan poses a direct threat to populations who are being targeted on the basis of ethnicity and presumed political loyalties, Global Centre for the Responsibility to Protect, available at http://www.globalr2p.org/regions/south_sudan; UN aid chief urges global action as starvation, famine loom for 20 million across four countries, 10 March, 2017 available at http:// www.un.org/apps/news/story.asp?NewsID=56339#.WTAdf9UjHIU.
 Why the UK has a special responsibility to protect its share of refugees, 15 May, 2015 available at http:// theconversation.com/why-the-uk-has-a-special-responsibility-to-protect-its-share-of-refugees-41773.
 Mass atrocity crimes are being committed in Yemen as pro-government forces and a regional military coalition fight against Houthi rebels, who still control much of the country, Glabal Centre for the Responsibility to Protect, available at http://www.globalr2p.org/regions/yemen.
 Assessment of Customary International Law, International Committee of the Red Cross, available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_in_asofcuin.
 The Burma Cyclone and the Responsibility to Protect, 21 July, 2008 available at https://www.brookings.edu/ on-the-record/the-burma-cyclone-and-the-responsibility-to-protect/
 Georgia Institute of Technology. “Flooding And Damage From 2008 Myanmar Cyclone Assessed.” ScienceDaily. ScienceDaily, 10 August 2009. <www.sciencedaily.com/releases/2009/07/090717104618.htm>.
 United Nations, General Assembly-Security Council, Letter dated 9 November, 2011 from the Permanent Representative of Brazil to the United Nations addressed to the Secretary-General, A/66/551-S/2011/701, available at http://www.dgvn.de/fileadmin/user_upload/DOKUMENTE/English_Documents/ Concept_Paper_Brazil.pdf
 Id, Annex, para 11