Written evidence from Global Centre for the Responsibility to Protect (RTP0003)

 

 

The Global Centre for the Responsibility to Protect is the leading international authority on the responsibility to protect (R2P), and since its inception in 2008 it has expanded and deepened global support for the norm. The Global Centre plays a unique “insider/outsider” role at the United Nations as the only organization carrying out monitoring, research and advocacy on all current and potential mass atrocity situations around the globe, as well as working with governments to translate this research into actionable policy responses. This submission has been prepared by Dr. Simon Adams, Executive Director, and Anna Samulski, Research Analyst.

 

Executive Summary

 

 

R2P and Humanitarian Intervention

  1. Throughout the 1990s, the United Nations (UN) was deeply divided between those who insisted on a right of humanitarian intervention and those who viewed such a doctrine as an indefensible infringement upon national sovereignty. At the time Secretary-General Kofi Annan warned that the UN risked discrediting itself if it failed to respond to catastrophes such as Rwanda and Srebrenica, and he challenged member states to agree on a legal and political framework for collective international action.

 

  1. In 1999 the failure of the UN Security Council to authorize action to halt "ethnic cleansing" in Kosovo provoked NATO to initiate an aerial bombardment on its own. This deeply divided the international community, pitting those who denounced the intervention as illegal against others who argued that legality mattered less than the moral imperative to save lives. This deadlock implied a pair of unpalatable choices: either states could passively stand by and let mass killing happen in order to strictly preserve the letter of international law, or they could circumvent the UN Charter and unilaterally carry out an act of war on humanitarian grounds.

 

  1. The 2001 report of the International Commission on Intervention and State Sovereignty (ICISS) formulated the alternative principle of "the responsibility to protect," focusing not on the legal or moral "right" of outsiders to intervene but on the responsibility of all states to protect people at risk. In 2005 the UN World Summit unanimously accepted their "responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity."

 

  1. R2P stipulates three pillars of responsibility. Pillar One: Every state has the Responsibility to Protect its populations from four mass atrocity crimes: genocide, war crimes, crimes against humanity and ethnic cleansing. Pillar Two: The wider international community has the responsibility to encourage and assist individual states in meeting that responsibility. Pillar Three: If a state is manifestly failing to protect its populations, the international community must be prepared to take appropriate collective action, in a timely and decisive manner and in accordance with the UN Charter.

 

  1. The UN's 2005 World Summit Outcome Document explicitly limits the application of R2P to mass atrocity crimes: genocide, ethnic cleansing, war crimes and crimes against humanity. These crimes have been clearly defined in a range of documents, including in the founding statute of the International Criminal Court (ICC). R2P does not apply to other violations and abuses of human rights or grave threats to human security.

 

  1. Genocide is the subject of the 1948 Convention on Prevention and Punishment of the Crime of Genocide, which outlaws actions taken "with intent to destroy, in whole or in part, a national, ethnical, racial or religious group."

 

  1. The category of war crimes is the broadest. The founding statute of the ICC lists fifty such acts, including torture, hostage-taking, mistreating prisoners of war, targeting civilians, pillage, rape and sexual slavery, and the intentional use of starvation. R2P applies to such crimes even when they are committed in the course of a civil war or other internal conflict. While it may not be possible to specify an exact threshold, it is clear that the commission of war crimes involves widespread abuses by a party to the conflict.

 

  1. Crimes against humanity include, according to the ICC statute, extermination, enslavement, deportation, torture, rape, extreme forms of discrimination and "other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health." Such acts constitute crimes against humanity when they are widespread and systematic, and committed as conscious acts of policy.

 

  1. The term "ethnic cleansing" has recently come into general usage and is the least clearly defined of the four legal categories. It is understood to describe forced removal or displacement of populations, whether by physical expulsion or by intimidation through killing, acts of terror, rape and the like.

 

  1. R2P is not yet a rule of customary international law, but it builds upon existing legal foundations, as elaborated above, and can be described as an international "norm." A norm of international conduct is one that has gained wide acceptance among states and there could be no better demonstration of that acceptance in the case of R2P than the unanimously adopted language of the 2005 World Summit Outcome Document. Once a norm has gained not only formal acceptance but widespread usage, it can become part of "customary international law."

 

  1. The doctrine of humanitarian intervention, which is also not considered a rule of customary international law, may be summed up as, “military intervention in a state, without the approval of its authorities, and with the purpose of preventing widespread suffering or death among the inhabitants” (Adam Roberts, “Humanitarian war: military intervention and human rights,” International Affairs, Vol. 69, no. 3, 1993, 429). This differs from the Responsibility to Protect on at least three grounds.

 

  1. First, the remit of humanitarian intervention, which aims at preventing large scale suffering, is far broader than that of R2P, which focuses upon the prevention of the four mass atrocity crimes. Second, humanitarian intervention automatically focuses upon the use of military force, by a state or a group of states, against another state without its consent. As such it overlooks the broad range of preventive, negotiated and other non-coercive measures that are central to R2P. Third, to the extent that the doctrine of humanitarian intervention is predicated on the basis of the “right to intervene,” it assumes that it can proceed without the need to secure appropriate authorization under international law.

 

  1. Rather than compromising sovereignty, as humanitarian intervention does, R2P harnesses the notion of “sovereignty as responsibility” and seeks to respond to extreme crises in a way that is both legitimate and legal.

 

The Use of Force

  1. The UN Charter stipulates clearly that the use of coercive military force in the territory of a sovereign state without its consent is only permissible under international law in self-defence (Article 51) or with the authority of the UN Security Council (Chapter VII and, in the case of the use of force by regional organisations, Chapter VIII). No formal principles presently exist to guide UN Security Council decision-making on when the use of force is an appropriate measure to take. However, the following prudential criteria outlined in the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS) – which formulated R2P – have and should,  continue to inform public debate and deliberations among governments and to help guide possible military action under the UN Charter:

 

  1. a) The violence in question must include large-scale actual or threatened loss of life or ethnic cleansing; b) The purpose of the intervention must be to prevent or halt suffering; c) Military force must be the last resort; d) The means must be commensurate with the ends sought; e) And the intervention must have a reasonable prospect of success.

 

  1. However, in light of deep political divisions within the UN Security Council, cases do arise where a situation satisfies the five criteria outlined earlier, but does not enjoy the endorsement of the Security Council, due to the veto of a permanent member. Unquestionably, any military action taken outside of the UN Charter is illegal under international law, though it may be widely viewed by members of the international community as legitimate. R2P cannot and should not be used to justify such action (for more information regarding alternatives to military force that can be taken within the R2P framework, please see the Global Centre’s publication “The Responsibility to Protect and Alternatives to the Use of Force” here). Additionally, humanitarian intervention does not and should not provide a legitimate exception to the general prohibition on the use of force taken outside of the UN Charter.

 

The State of R2P in 2018

  1. Since the 2005 World Summit the UN and its member states have aided in the evolution of R2P through actions that encourage wider acceptance of the norm and facilitate its implementation. No UN member state today would proclaim that massacres perpetrated behind sovereign borders are simply a government prerogative, and no government would challenge the argument that the international community has an obligation to assist a state if it is struggling to protect its people. The battle of ideas has been won.

 

  1. Substantive debates at the UN now focus on when and how individual states and the international community should uphold their responsibilities and implement appropriate measures to prevent or halt atrocities (for more on the normative development of R2P during its first decade in existence, please see Executive Director of the Global Centre, Dr. Simon Adams’s article “The Responsibility to Protect at 10” here).

 

  1. R2P continues to evolve both politically and legally. It has been formally invoked by the UN Human Rights Council, General Assembly and the Security Council. As of April 2018 R2P has been invoked in 69 UN Security Council resolutions, 12 General Assembly resolutions, and 30 Human Rights Council resolutions. These resolutions have addressed situations such as Central African Republic, Côte d’Ivoire, Libya, Mali, Democratic Republic of the Congo, Somalia, South Sudan and Syria – as well as thematic issues such as the Protection of Civilians, Prevention of Genocide, Small Arms and Light Weapons, Threats to International Peace and Security Caused by Terrorist Acts, and the Protection of Healthcare in Conflict.

 

  1. During August 2007 UN Secretary-General Ban Ki-moon appointed Dr. Edward Luck as his first Special Adviser on the Responsibility to Protect. Working closely with the Special Adviser on the Prevention of Genocide, the two Special Advisers and their Joint Office have helped advance R2P within the UN system. In July 2013 the Secretary-General appointed Dr. Jennifer Welsh as his second Special Adviser on the Responsibility to Protect, who was followed by Ivan Šimonović during October 2016. A successor to Mr. Šimonović has not yet been appointed. During November 2014 the Joint Office launched a new Framework of Analysis for Atrocity Crimes as a tool for prevention of mass atrocities.

 

  1. The UN General Assembly has held eight informal interactive dialogues on R2P between 2010 and 2017, as well as one open debate in 2009. The UN Secretary-General released a report on R2P in advance of each of these discussions. On 15 September 2017 the UN General Assembly voted in favor of putting R2P on the formal agenda of the General Assembly for its 72nd Session.

 

  1. The Secretary-General has addressed issues related to R2P’s implementation in his subsequent reports: Early warning, assessment and the responsibility to protect (2010), The role of regional and sub-regional arrangements in implementing the responsibility to protect (2011), Timely and decisive response (2012), State responsibility and prevention (2013), Fulfilling our collective responsibility: international assistance and the responsibility to protect (2014), A vital and enduring commitment: implementing the responsibility to protect (2015), Mobilizing collective action: the next decade of the responsibility to protect (2016) and Implementing the Responsibility to Protect: Accountability for Prevention (2017) (for summaries of the annual UN General Assembly Interactive Dialogues on R2P, please see the Global Centre’s website).

 

  1. Since 2009, more than 127 states and 5 regional organizations have participated in the UN General Assembly’s annual interactive dialogue on R2P. States also discuss R2P in other human rights forums, including in debates on the protection of civilians and at the Human Rights Council. The Group of Friends of the Responsibility to Protect is an informal cross-regional group of 50 UN member states that share a common interest in R2P and in advancing the norm within the UN-system. The Group of Friends, co-chaired by the governments of Italy and Qatar in New York, made its first ever joint statement at the 2014 UN General Assembly Informal Interactive Dialogue on R2P. A Group of Friends of R2P was launched at the Human Rights Council in Geneva during 2015, mirroring the membership of the New York based group and co-chaired by the governments of the Netherlands and Rwanda.

 

  1. Since 2005 some governments have taken important steps towards implementing the Responsibility to Protect domestically, including through the appointment of a national R2P Focal Point. A national R2P Focal Point is a senior government official who facilitates domestic mechanisms for atrocity prevention. R2P Focal Points also engage in international cooperation by participating in a Global Network of R2P Focal Points. As of April 2018 59 member states and one regional organization, the European Union, had appointed an R2P Focal Point.

 

Recommendations

  1. Going forward one of the largest challenges facing R2P is that of political will. We need to ensure that when and wherever mass atrocity crimes occur, consensual international arrangements are in place for the effective mobilization of the UN system, governments, regional organizations and civil society. It also requires that there is consistency in the application of R2P both internationally and domestically (for more information on how parliamentarians can uphold R2P please see the Global Centre’s publication “Advocate, Educate, Legislate: the Role of Parliamentarians in the Prevention of Mass Atrocities” here).

 

  1. In this respect, the government of the United Kingdom should continue to champion R2P at the UN Security Council. The Permanent Mission should continue to be an active member of the Group of Friends, and incorporate R2P references into Council products addressing atrocity situations. The United Kingdom should work with its fellow Permanent and Elected members to ensure that timely and decisive action is taken through the Security Council to prevent and respond to atrocities, and continue to advocate for fellow member states to endorse the Accountability, Coherence and Transparency group’s Code of Conduct regarding Security Council action against genocide, crimes against humanity or war crimes.

 

  1. When the UN Security Council is incapable of taking action, the government of the United Kingdom should pursue innovative action to respond to mass atrocity situations through alternative avenues within the UN, including the UN General Assembly and the Human Rights Council.

 

  1. The government of the United Kingdom should bolster the role of the R2P Focal Point, Mr. Paul Williams, Director, Multilateral Policy Directorate. One of the primary functions of an R2P Focal Point is to be a champion and an advocate for mass atrocity prevention and response. By appointing an R2P Focal Point and joining the Global Network, the United Kingdom made a commitment to implement measures aimed at protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing. The Focal Point should be supported to integrate mass atrocity prevention within their department and ministry as well as across other ministries and the wider government. This could include through the formation of a national mechanism for mass atrocity prevention. Additionally, Parliament can and should consult the Focal Point in discussions regarding the prevention of and response to mass atrocity situations.

 

  1. The government of the United Kingdom should financially support civil society organizations and institutions that carry out research, advocacy and projects focused on mass atrocities and the responsibility to protect.

 

  1. The international community will continue to encounter difficulties when confronting mass atrocity crimes. Crises threatening human security continue to arise, and with them debates over the most appropriate response. But R2P remains the best hope for those who aspire for a world free from genocide, war crimes, ethnic cleansing and crimes against humanity and for an end to the politics of impunity, indifference and inaction.

 

May 2018