Where is R2P grounded in international law? Anne-Marie Judson A ...

were found to be a part of war crimes even though there were references to crimes
against humanity. The research showed that the Nuremberg and Tokyo Trials had
failed to prosecute crimes against humanity on their own. The Secretary-General on
setting up the Tribunals of Rwanda and the former Yugoslavia could not distinguish
crimes against humanity from war crimes or genocide. The United Nations at the
time avoided adding crimes against humanity as a reason for setting up the Tribunals.
This research showed that crimes against humanity on its own could not be used for
an intervention but must be additional to war crimes and or genocide to be included
in international customary law.
Chapter 4 identified that certain rights could be derogated from under the state of
emergency and the International Covenant of Civil and Political Rights (1966).
Detailed research was undertaken in this area to assess the provisions and the extent
to which rights could be derogated from. This research showed the principal reason
why a state derogated from rights was because of a terrorist threat or a public uprising
against the state. It also showed that states regularly breached or violated the
provisions associated with the Covenant placing civilians at further risk of abuse.
It also has shown that the international community is not legally entitled to intervene
in a state that is abusing these rights unless the abuses constituted a war crime and or
genocide. This showed that some rights could be abused legally in international law so
long as the exigencies of the situation persisted and the government was under threat.
The research clarified that under certain provisions civil and political rights can be
derogated from and this was exceptional to all other internationally binding treaties
on the protection of civilian rights during a time of civil peace. R2P was found to be
outside of these derogations in a state of emergency, civilian rights were found to be
non-existent and unprotected even by the international community unless it could be
proved that the state was in fact in a conflict with another party. The party had to be
clearly identified. This raised many other questions.
Finally the entire thesis showed that R2P is not a new idea nor does it contribute new
material to already existing international laws and norms. The idea has been at the
heart of the United Nations General Assembly discussions since its second meeting in
1945, each state agreed to refrain from aggression and interference into other states
internal affairs.
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