A Failure to Protect: The UN Human Rights Council and Darfur

Abstract

This paper assesses the Responsibility to Protect (‘R2P’) principle as an emerging norm of customary international law, and as an effective political strategy in responding to mass atrocity crimes.The proponents of R2P believe that it has the status of an emerging norm. This analysis accepts that R2P should be evaluated as a ‘soft law’ norm’. Soft law norms are generally the result of a consensus in international forums expressed in normative terms of general application.An emerging norm is one which ‘does not yet satisfy the requirements for the creation of custom but is regarded as likely to do so over time’. The test whether R2P is an emerging soft law norm would be whether a relevant international forum is likely to form a consensus in support of R2P.The majority of the members of the Human Rights Council in 2007 repudiated the application of R2P to the situation in Darfur. This response of the Human Rights Council shows that R2P is not, on present indications, ‘likely’ to emerge as a soft law norm over time.This analysis also shows that the theory of soft law making is not merely a conveniently amorphous substitute for rigorous examination of the evidence of a customary norm. It is possible to test whether a soft law norm has been established or qualifies as an ‘emerging norm’.The response of the Human Rights Council to the situation in Darfur also shows that R2P has not served as a trigger for an effective political response to mass atrocity crimes.