THE RESPONSIBILITY TO PROTECT:
A BACKGROUND BRIEFING
WHAT IS THE RESPONSIBILITY TO
PROTECT AND WHY DO WE NEED IT?
The Responsibility to Protect (R2P) has many sources:
the rise of international humanitarian law starting with
the Geneva Conventions in the late nineteenth century
and accelerating in the period after World War II; and
the profound sense of revulsion at the failure of the
international community to act effectively in Rwanda
and Bosnia. The need for a broadly accepted new norm
to guide the international response to mass atrocity
crimes became increasingly apparent.
The United Nations (UN) was established in 1945 to
prevent conflicts between states. But with the end of the
Cold War, inter-state aggression largely gave way to war
and violence inside states. When, during the 1990s,
horrific violence broke out inside the borders of such
countries as Somalia, Rwanda, and the former
Yugoslavia, the world was ill-prepared to act and was
paralyzed by disagreement over the limits of national
sovereignty.
Throughout the 1990s, the 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 state 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 he challenged
member states to agree on a legal and political
framework for action.
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 preserve the strict letter
of international law, or they could circumvent the UN
Charter and unilaterally carry out an act of war on
humanitarian grounds.
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 General
Assembly for the UN World Summit unanimously
accepted their "responsibility to protect populations
from genocide, war crimes, ethnic cleansing and crimes
against humanity."
The Responsibility to Protect concept sought to confront
both the Rwanda tragedy and the Kosovo dilemma by
stipulating that states have an obligation to protect their
citizens from mass atrocity crimes; that the
international community will assist them in doing so;
and that, should the state be "manifestly failing" in its
obligations, the international community is obliged to
act.
R2P, as it is commonly abbreviated, seeks to ensure that
the international community never again fails to act in
the face of genocide, ethnic cleansing, war crimes, and
crimes against humanity. By accepting a collective
responsibility to protect, the international community
has issued a solemn pledge that it cannot lightly ignore.
WHAT FORMS OF HUMAN RIGHTS
ABUSE DOES THE RESPONSIBILITY TO
PROTECT SEEK TO ADDRESS?
The UN's 2005 World Summit Outcome Document
explicitly limits the application of the R2P norm to four
types of mass atrocity crimes: genocide, ethnic
cleansing, war crimes and crimes against humanity.
These terms 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 grave threats to human
security, whether from climate change, disease or from
many harmful and ruinous state policies, such as the
suspension of civil liberties, endemic poverty, mass
corruption or coups d'état. Other human rights
instruments, legal frameworks and institutions are
better suited to address these pressing issues.
WHAT IS A MASS ATROCITY CRIME?
The four types of extreme human rights abuse
enumerated in the 2005 UN World Summit Outcome
Document are captured by the shorthand, "mass
atrocity" or "mass atrocity crime." These crimes are
defined with varying degrees of precision in
international law.
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."
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 entailing large-scale killing
and mass suffering would give rise to a responsibility to
protect.
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.
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.
HOW DOES THE RESPONSIBILITY TO
PROTECT WORK?
At the heart of the R2P norm is the principle that states,
with the aid of the international community, must act to
prevent mass atrocity crimes. Central is the idea that
concerned outsiders should help states prevent these
gross abuses through what the UN document
characterizes as "diplomatic, humanitarian and other
peaceful means." This includes strengthening state
capacity through economic assistance, rule-of-law
reform, the building of inclusive political institutions;
or, when violence seems imminent, through direct
mediation. The intense diplomatic engagement
following the disputed election in Kenya (2007), or the
work of neighbors and the UN to support the
government of Burundi as it addressed ethnic conflict
(1995-2005), demonstrate cooperative efforts to prevent
atrocities.
Only when such means have been unsuccessful should
the international community, acting through the UN
Security Council, turn to coercive measures. These could
include such measures as sanctions, arms embargoes, or
the threat to refer perpetrators to the ICC. Should
peaceful means be inadequate and the state be
manifestly failing to protect its population, then-and
only then-would the Security Council consider the use of
military force.
WHEN IS MILITARY FORCE JUSTIFIED?
A timely intervention could have halted, if not
prevented, the genocidal horror in Rwanda and perhaps
also in Cambodia and elsewhere. The ICISS report and
the UN Secretary-General's In Larger Freedom
document proposed five "precautionary principles" or
"criteria of legitimacy" to help guide possible military
action.
1. The violence in question must include large-scale
actual or threatened loss of life or ethnic cleansing;
2. The purpose of the intervention must be to prevent
or halt suffering;
3. Military force must be the last resort;
4. The means must be commensurate with the ends
sought;
5. And the intervention must have a reasonable
prospect of success.
No formal principles presently exist to guide UN
Security Council decision-making on the use of force.
These standards can and should, however, continue to
inform public debate and deliberations among
governments.
HOW DOES THE RESPONSIBILITY TO
PROTECT AFFECT THE IDEA OF
SOVEREIGNTY?
States have long accepted limits on their conduct,
whether towards their own citizens or others. The UN’s
Universal Declaration of Human Rights requires that
states protect individual and social rights; the Geneva
Conventions and various treaties and covenants
prohibiting torture, trafficking in persons, or nuclear
proliferation similarly restrict state behavior.
At the same time, there has been a shift in the
understanding of sovereignty, spurred both by a growing
sensitivity to human rights and by a reaction to mass
atrocity crimes perpetrated upon citizens by their own
leaders. Sovereignty is increasingly defined, not as a
license to control those within one's borders, but rather
as a set of obligations towards citizens.
Francis Deng, the former UN Special Adviser on the
Prevention of Genocide and the former representative of
the Secretary-General on internally displaced persons,
developed the concept of "sovereignty as responsibility."
Chief among those responsibilities, Deng and others
have argued, is the responsibility to protect citizens from
genocide, war crimes, ethnic cleansing and crimes
against humanity.
IS THE RESPONSIBILITY TO PROTECT A
TOOL OF THE POWERFUL AGAINST THE
WEAK?
Critics of R2P insist that it will never be applied to major
powers, and thus it is undermined by inconsistency.
However, R2P imposes obligations on all United
Nations member states to prevent mass atrocity crimes.
R2P covers crimes occurring anywhere in the world,
regardless of the status or prestige of the perpetrator.
Given that the more powerful states have a far greater
capacity to extend assistance - and far greater economic,
diplomatic, logistical, and military capacity - their
responsibility to respond and react to mass atrocity
crimes is arguably greater. R2P is fundamentally about
protecting the weak (those subjected to mass atrocity
crimes) from unconscionable abuse of power.
WHAT IS THE STANDING OF THE
RESPONSIBILITY TO PROTECT IN
INTERNATIONAL LAW?
R2P is not yet a rule of customary international law, but
it can certainly 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."
While R2P has moved rapidly within the international
arena, it does not have the degree of acceptance that
would justify its description as "law." R2P continues to
evolve both politically and legally. It has been formally
invoked by the UN Human Rights Council and the
Security Council, including through resolutions
regarding situations in Côte d’Ivoire, Libya, Mali, South
Sudan and Yemen.
WHAT IS THE STANDING OF THE
RESPONSIBILITY TO PROTECT IN THE
UN?
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.
The UN General Assembly has held four informal
interactive dialogues on R2P between 2009 and 2012.
The UN Secretary-General released a report on R2P in
advance of each of the interactive dialogues. The
Secretary-General's 2009 report, entitled Implementing
the responsibility to protect, introduced a three pillar
strategy for R2P implementation. The three succinctly
stated pillars are:
Pillar 1: The primary protective responsibilities of a
state
Pillar 2: International assistance and capacity building
Pillar 3: Timely and decisive response
The three pillars have since served as a frame for
discussing the different facets of implementation and
response in R2P risk situations and have been
frequently invoked by member states when addressing
R2P.
The Secretary-General's 2010, 2011 and 2012 reports
encouraged states to think more extensively about R2P
implementation. The 2010 report, entitled Early
warning, assessment and the responsibility to protect,
focused on UN institutions and their capacity to monitor
and respond to early warning signals. The 2011 report,
entitled The role of regional and sub-regional
arrangements in implementing the responsibility to
protect, addressed the capacities regional organizations
possess for mass atrocity prevention and the
mechanisms through which states can achieve effective
collaboration. The 2012 report, entitled Timely and
decisive response, focused on the need to clarify
coercive dimensions of Pillar 3.
Member states have directly engaged with the R2P
dialogue in many ways. Since 2009, 108 states and 5
regional organizations have participated in the
interactive dialogues on R2P. In addition, during their
statements at the annual opening of the UN General
Assembly, 49 states have referred to R2P. States also
discuss R2P in other human rights forums, including in
debates on the protection of civilians.
As stated by the UN Secretary-General in a 2011 speech
on R2P, "this is a critical moment in the life of the
responsibility to protect. In the six short years since its
endorsement by the World Summit this doctrine has
gone from crawling to walking to running....By now it
should be clear to all that the responsibility to protect
has arrived."
WHERE DO WE GO FROME HERE?
There are three major challenges as we continue to move
R2P from theory to practice. The first is conceptual - to
ensure that the scope, and limits, of the norm as it has
evolved are well understood in all parts of the world, so
that misunderstandings (for example that R2P is only
about military intervention) do not persist. As new R2P
risk situations arise, there needs to be broad
international consensus about how to respond.
The second challenge is institutional. There is a need to
ensure that governments and intergovernmental
organizations have available all the diplomatic, civilian
and, as a last resort, military capability needed to ensure
effective early warning and timely action. We need
international institutions with a capacity to provide
essential assistance to those countries who need it and
to people desperately in need of protection.
The third, as always, is political. We need to ensure that
when and wherever mass atrocity crimes next occur, the
necessary commitment will be there from international
decision-makers. This means having consensual
international arrangements in place for effective
mobilization by both governments and civil society. It
also requires that there is consistency in the application
of R2P.
Crises threatening human security continue to arise, and
with them debates over the most appropriate response.
The international community of states will continue to
encounter difficult questions about the applicability of
R2P. But R2P remains the best hope for those who
aspire for a world free from genocide, war crimes, ethnic
cleansing and crimes against humanity. R2P represents
an end to impunity, injustice and inaction.