Written evidence from Dr Eglantine Staunton and Dr Outi Donovan
University of Leeds,
European Centre for the Responsibility to Protect
1.1 This brief addresses all the points of the inquiry’s terms of reference.
1.2 We are submitting this evidence in the capacity of research fellows at the European Centre for the Responsibility to Protect, University of Leeds.
2.1 There is evidence that some of the mass atrocity crimes such as genocide are decreasing in numbers of incidents. At the same time, global initiatives such as the R2P Focal Points network represent a step towards greater awareness and engagement, as do the frequent references to the R2P in UN Security Council resolutions. Yet, reoccurring atrocities in places such as Syria, Yemen and Myanmar, among others, serve as a reminder that protection of civilians remains weak in many parts of the world and much needs to be done to consolidate the responsibility of states to prevent atrocities within their own borders. The inability of the UN Security Council to effectively respond to R2P crises, in turn, speaks volumes of the contestation surrounding the concept’s implementation.
2.2 In terms of the UK’s commitment, as a permanent member of the UN Security Council and the penholder of many crises, the UK has played a crucial role in the promotion of R2P. However, what was already pointed out by Ralph in 2014 and Protection Approaches in 2016 remains valid: the UK has a clear conflict prevention strategy in place but lacks an atrocity prevention lens. This is problematic because while conflict and atrocity prevention can use similar tools such as mediation or even more coercive measures like sanctions, they rely on different – and often conflicting – strategies. For instance, atrocity prevention can require escalating an armed conflict, which the international community would avoid doing at all cost if it was using a conflict prevention lens. Similarly, conflict prevention necessitates to be impartial and engage with all the actors of a crisis, while an atrocity prevention one often leads to the distinction between victims and perpetrators.
2.3 This has led the UK’s response to some mass atrocities to be ineffective and at times, counterproductive. For instance, the December 2017 report of House of Commons Foreign Affairs Committee suggested that in the lead up to the recent ethnic cleansing in Myanmar there ‘had been too much focus by the UK and others […] on supporting the “democratic transition” [in Myanmar] and not enough on atrocity prevention’ (2017, 3). The Committee further noted that as the UN Security Council ‘penholder’ on this issue, the UK had ‘some responsibility’ for failing to turn these warning signs into ‘tangible action and improvements on the ground’ (2017, 3, 18).
3.1 The last few years have seen the divide between diplomatic support and implementation of R2P grow. This is best illustrated by the mass atrocities taking place in countries like Syria, Myanmar, the Democratic Republic of the Congo, Yemen, Iraq, South Sudan and Eritrea. Even the international community’s diplomatic support can be relativized. For instance, while the UN Security Council is increasingly referring to R2P (69 Resolutions have mentioned R2P since 2005), the majority of the resolutions only discuss pillar 1 which refers to the responsibility of states to protect their own populations.
3.2 This is problematic for several reasons:
4.1 It is not the concept that needs to be reformed. In fact, any attempt to reform it might weaken it considering the contestation it is currently facing, in particular by the BRICS – Brazil, Russia, India, China and South Africa. Rather, the way it has been implemented should be improved. Below are suggestions of how this could be achieved.
a) A stronger focus on prevention and early warning
4.2 Considering that the international community is divided on the extent of the tools that should be used under pillar 3 (timely and decisive response of the international community when a state is manifestly failing to fulfil its R2P), the UN should focus its efforts on prevention and early warning. In addition to offering more common ground for discussion, this approach is known to save lives, be cost effective and to promote state building.
4.3 The UN has developed the Framework of Analysis for Atrocity Crimes, which is an essential tool of atrocity prevention as it clearly defines what the atrocity crimes are and the key risk factors associated. Additionally, it is easy to use and does not require many resources. However, it could benefit from three key changes which the UK could encourage. First, it needs to include concrete recommendations on what to do to mitigate the risk of mass atrocity situations identified while using the Framework. R2P still needs to rely on a case-by-case approach but it would be helpful to list specific policies or approaches that are available and have proven to be effective. The addition of successful case studies would also be welcome in the annex section in order to provide concrete examples and illustrate the extent of the benefits of prevention when it comes to saving lives and resources, but also in terms of state building.
4.4 Additionally, the report should emphasise the importance of adopting a specific mass atrocity prevention lens. Too many states keep arguing that they are strong promoters of R2P because they support various conflict prevention initiatives and have internalised conflict prevention tools. However, as explained in the 2013 UN Secretary General report, “focusing exclusively on conflict prevention would overlook atrocity crimes that occur outside of armed conflict or that are not necessarily related to armed conflict”. Additionally, as mentioned previously, conflict and mass atrocity prevention can rely on the same tools but do not necessarily use the same strategies. Consequently, the Framework needs to clearly underline the ties – but also the differences – between the two. This is particularly important since at the moment, the report states that “atrocity crimes usually take place against a background of either an international or non-international armed conflict” making this distinction unclear.
4.5 Last but not least, the Framework should include important risk factors such as ‘Records of sexual and gender based violence’. Even though this risk factor could be seen as falling under other factors such as Risk Factor 2 ‘Record of serious violations of international human rights and humanitarian law’, gender-specific indicators need to be more consistently integrated in early warning framework such as the UN Framework to reflect the fact that sexual and gender based violence during conflicts and mass atrocity situations is increasingly common and is often used as a mass atrocity tool.
b) More resources for the Special Adviser on the Responsibility to Protect and the UN Secretariat
4.6 In order to facilitate this focus on prevention and early warning, the Special Adviser on the Responsibility to Protect should have more resources available. The position should be paid so that the Special Adviser can fully focus on their mandate. They should also be assisted by a full time team and have the necessary means to visit places at risk of mass atrocity situations in order to put pressure on the perpetrators while offering support to prevent the atrocities from taking place.
4.7 Similarly, the Secretariat is already a central actor of early action and with the UN Security Council often being in deadlock situations, its role is bound to keep expanding. The means available to the Secretariat should match this new reality in order to allow it to appropriately assess the atrocity crime trends, define actual risks in specific situations, offer suggestions on the best way to move forward, and reflect on previous cases (both successes and failures).
4.8 In addition to these analytical responsibilities, the Secretariat could prevent mass atrocities by being more present in the field. One of the ways it could strengthen its action is to have the Special Adviser on R2P or one of their representatives visit areas at risk of mass atrocity situations. These visits have proven to be effective into bringing situations at risk to the attention of the international community and have the advantage of being both an incentive for states to fulfil their responsibility to protect – with the help of the international community if need be – and a reminder that the world is watching and willing to react should they decide not to.
4.9 As a permanent member of the Security Council, the UK’s support of this kind of initiatives would go a long way to counterbalance the influence of other states who are reluctant to give reasonable means to the Special Adviser and the Secretariat more generally.
c) A reform of the UN Security Council to increase its effectiveness and accountability
4.10 Strengthening the capacity of intergovernmental bodies such as the Security Council for early action should be a priority as its legitimacy – and the legitimacy of the UN as a whole – is at stake. As mentioned previously, the Council’s failure to put an end to crises such as the one in Syria has considerably damaged its legitimacy and seems to suggest that its resolutions are mere suggestions rather than legally binding measures. Additionally, strengthening the Council would also help consolidate the status of the UK in a post-Brexit world.
4.11 A key proposal that has been put forward is the restrain of the veto power of the permanent members of the Security Council. During the 70th session of the UN General Assembly held in September 2015, France and Mexico officially put forward a ‘Political statement on the suspension of the veto in case of mass atrocities’ which as of 27 June 2017, was supported by 96 member states. However, this proposal is not as straightforward as it seems. For instance, as Ralph explains in his written evidence, it is not clear if a permanent member would still be able to vote no (even if the vote is not counted as a veto). Additionally, it is unlikely to happen in the short term as Russia and China are strongly opposed to it.
4.12 A less controversial way to strengthen the Council’s role would be to shift its focus from reaction to prevention by providing more opportunities for the UN Secretary General (and the Department of Political Affairs - DPA) to brief the Council very early on like it used to during the 1990s. This measure is in line with Article 99 of the UN Charter and was encouraged by Resolution 1625 but remains underused in practice, in part because of the absence of a routine format for these briefings to take place. The UK’s ‘Horizon Scanning’ exercise was a first step in addressing this challenge but it failed to become an official part of the proceedings. The DPA briefings that have replaced them do not accomplish the same goals as they are not focused on situation-specific crises and take place outside of the Council. In addition to a reform of proceedings, this measure would require an increase in resources for the Secretariat, as it would put more pressure on the Secretary General and his staff, and would politicise their role. However, it would strengthen the capacity of the Council for early action to prevent mass atrocity situations since it would mean that the Council is less dependent on the penholders who are not always as reactive, and even impartial, as they should be.
4.13 This leads to a second recommendation. The accountability deficit of the Council itself needs to be addressed. Several proposals such as the Code of Conduct have been put forward but they are unlikely to be adopted, at least in the foreseeable future. Other options thus need to be explored in the meantime. A concrete and achievable one would be to make the proceedings of the Council more transparent. This could be done by increasing the number of public and open meetings, augmenting the fairness and impartiality of the allocation of ‘penholdership’, and providing more regular briefings to the wider membership on what has been discussed by the Council.
d) A stronger focus on the responsibility to rebuild
4.14 Debates on the use of military force to protect civilians have tended to overshadow R2P’s other aspects that are equally important in addressing the problem of mass atrocity crimes. While preventing mass atrocities has begun to make its way into the R2P agenda at the international level, rebuilding societies in the aftermath of protection interventions has attracted less attention. This is a significant omission; commitment to rebuilding is critical to the aim of preventing future mass atrocities. The experience of Libya in the wake of the 2011 intervention highlights the importance of careful planning for the ‘day after’ but above all, stronger commitment to rebuilding.
4.15 Advocating for more emphasis on rebuilding in the R2P context needs to be grounded in what is possible. Rebuilding is costly, complex and long-term policy commitment. Attempts to place this responsibility solely on those who carry out Security Council-authorised protection interventions (by using military force) might serve to further disincentivise governments to discharge their responsibility to protect, if they are faced with additional duty to rebuild. Instead, more effective use of the UN’s peacebuilding architecture is necessary. R2P and peacebuilding currently exist in separate policy domains in the UN system; the rebuilding know-how and resources housed in the Peacebuilding Commission would greatly benefit the R2P principle.
4.16 Tapping into the existing expertise in the UN would require adequate resources; all too often UN peacebuilding and stabilisation missions operate on small budgets that limit their effectiveness. Yet, even the greatest resources and knowledge will not suffice if the UN’s efforts are undermined by external governments arming rival factions, as in Libya. This calls for greater support for the UN in the post-intervention phase. The British government should actively seek to coordinate the approaches of external governments involved in post-intervention rebuilding to ensure that they align with those of the UN.
4.17 While the efforts of the international community in societies affected by mass atrocity crimes should focus on building capacity in areas critical to peaceful conflict resolution (such as judicial reform, reconciliation, among others), a key lesson from previous stabilisation and peacebuilding missions is the need to reconsider the policy of prioritising elections. Elections that are held too soon can result in freezing of societal cleavages or worse, exacerbate them.
4.18 Even the best-laid rebuilding plans are at times disrupted. Libya highlights the critical question of how to ensure that the security and political vacuum created by the intervention does not result in further humanitarian crises. In Libya, the security situation deteriorated rapidly after the fall of the Gaddafi regime. Peacekeeping mission would have arguably been necessary in the immediate aftermath of the Gaddafi regime’s fall. This option was, however, off the table as the Libyan transitional authorities refused to allow foreign troops on Libyan soil. Greater investment by the British government and her allies on the political process would have been necessary. It became clear from early on that the transitional authorities were deeply divided and lacked legitimacy in the eyes of the militias; encouraging and supporting the Libyan factions in finding a political solution would have potentially helped to ease the tensions that eventually erupted into violence. While there is no doubt that the emphasis on domestic ownership of rebuilding is the right approach, the main lesson of Libya is that firm commitment to rebuilding cannot be substituted by domestic ownership. This is particularly the case where the government has collapsed as a result of, or in the course, of the protection intervention.
5.1 Humanitarian intervention is linked to the contested idea that force may be used without the consent of the host state to put an end to a humanitarian crisis, no matter what its origin is (political, environmental, etc.). This concept was broadly contested throughout the 1990s.
5.2 This is not what R2P is trying to achieve. R2P argues that as a last resort, after a situation has been assessed on a case by case basis, the UN Security Council can authorise the use of force to prevent or respond to four – and only four – categories of crimes: genocide, war crimes, crimes against humanity and ethnic cleansing. As such, when specific conditions are met, it should be seen as an exception to the general prohibition on the use of force.
6.1 ‘Weapons of mass destruction’ (WMD) is an umbrella term used for nuclear, chemical and biological weapons. The most urgent concern from the perspective of the R2P has been the use of chemical weapons by the Syrian government. While the targeting of civilians (regardless of the weapons used) is always illegal under international humanitarian law, the use of chemical weapons is regulated by the 1997 Chemical Weapons Convention. Again, under no circumstances can civilians be legally targeted.
6.2 Other international legal frameworks that apply to the use of chemical weapons against civilians are international criminal law and international human rights law. Under international criminal law, the use of chemical weapons could amount to crimes against humanity if their use systematically targets civilians with knowledge of the attack and is widespread. It may also meet the criteria of a genocide if WMDs are used with the intent to destroy national, racial, religious or ethnic communities in whole or in part. International human rights law is also relevant. It prescribes the right to life which the use of chemical weapons violates. It is critical that these fundamental principles of protecting civilians are upheld; to do so, the British government should ensure that all cases war crimes, crimes against humanity and genocide are investigated by the International Criminal Court.
May 2018
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