A Dead End or a New Beginning? The Place of Economic, Social and Cultural Rights in the Responsibility to Protect Doctrine

Sammanfattning: As endorsed by states in the 2005 World Summit, the R2P doctrine primarily reaffirms the responsibility of states to protect their population from genocide, war crimes, ethnic cleansing and crimes against humanity. Secondary responsibility is on the international community to encourage and help States to exercise this responsibility and where states manifestly fail to protect their populations to take collective action, in a timely and decisive manner, through the Security Council, to protect populations. This thesis will try to address the question of whether or not R2P, could be invoked when gross violations of ESC rights that could amount to crimes against humanity are committed by active commission or deliberate omissions of states. It would argue a case for the application of R2P for such cases by using Ronald Dworkin’s constructive method of interpretation. To qualify as crimes against humanity, gross violations of ESC rights must be committed as part of a widespread or systematic attack on the civilian population. Attack includes any mistreatment and is not limited to military attack. Such attack could be undertaken through active commissions or through deliberate omissions aimed at encouraging the attack. The mens rea required is satisfied by direct intention or indirect intension where the perpetrator knows such violations would bring about serious harm on the victim, even without desiring the result. Widespread or systematic forced evictions as gross violations of the right to adequate housing could constitute crimes against humanity. The denial of access to food to particular individuals or groups and the prevention of access to humanitarian food aid in internal conflicts or other emergency situations could also fit the criteria for crimes against humanity. This thesis acknowledges the validity of practical and political reasons for limiting the scope of R2P, but argues that gross violations of ESC rights that could amount to crimes against humanity should come within the reach of R2P. It shows that previous rejections of the application of R2P in connection to gross violations of ESC rights, particularly in Burma and Zimbabwe, do not indicate a dead end for such claim. It also argues that by their nature, these situations call for less than a full military response and therefore should not be rejected for fear that they would mean military intervention. By making a case for the application of R2P for gross violations of ESC rights, it would enable it extend better protection, by affirming indivisibility of human rights and echoing the responsibility of the international community to intervene in circumstances resulting in the massive denial and violation of ESC rights when the state generally responsible could no longer provide such protection.