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Wong on the Responsibility to Protect

November 10, 2009

Tags: Faculty & Scholarship, 2009

In Reconstructing the Responsibility to Protect in the Wake of Cyclones and Separatism, in volume 84 of the Tulane Law Review, Professor Jarrod Wong reconceptualizes the doctrine of the responsibility to protect (R2P). R2P provides that when a government fails to protect its citizens from genocide, war crimes, ethnic cleansing or crimes against humanity (“mass atrocities”), that responsibility shifts to the international community acting through the United Nations.

The U.N.’s apparent failure to include natural disasters in the catalogue of harms potentially justifying R2P intervention generated considerable controversy when Myanmar refused foreign aid following the devastation wrought by Cyclone Nargis. Those seeking to limit the scope of R2P read the U.N.’s focus on mass atrocities as a conscious exclusion of natural disasters as triggers for R2P. Supporters of R2P, by contrast, have argued that there is no meaningful distinction between the failure to protect following natural disasters and from mass atrocities.

Professor Wong shows that the causes of the harm are irrelevant. Developing what he labels a “constructive interpretation” of R2P, he demonstrates that R2P applies equally to a state’s failure to protect its population from harm caused by its omission to act when that omission constitutes a crime against humanity. This thesis is advanced through the novel application of fundamental criminal law principles to the regime of international human rights, and includes an interesting discussion of the extent to which the concept of crimes against humanity can be deployed where the harm to a population comes about by means of inaction rather than action.