The Responsibility to Protect at 10: Glass Half Empty, or Half Full?

A version of this post will appear in the no. 2 (June) 2016 issue of The International Spectator, a special issue which focuses on R2P.

 

When heads of state and government articulated the principle of the responsibility to protect (RtoP) at the World Summit of 2005, they were signaling an intention to move away from the status quo. Paragraphs 138 and 139 of the Summit Outcome Document, which affirm a political commitment to protect populations from genocide, war crimes, crimes against humanity, and ethnic cleansing[1], were not designed to be a comfortable rhetorical restatement of common values. With the failures of collective action represented by both Rwanda and Srebrenica in the backdrop, they aspired to something more – to close the gap between the existing legal responsibilities of states, which are clearly evident, in black in white, in international humanitarian and human rights law, and the reality of populations threatened with large scale and systematic violence.

 

Indeed, that is what normative commitments are designed to do. Aspiration is at their very core. Yet experience also demonstrates that the normative principles that have the greatest impact are those that do not stray too far from what member states, collectively, believe is legitimate. And so, with the contested case of the Kosovo War also in the back of their minds, the diplomats and political leaders present at the World Summit hammered out a version of the responsibility to protect that would honour the letter and spirit of the UN Charter and serve as an ally, rather than adversary, of sovereignty.

 

A decade on, any evaluation of the responsibility to protect needs to assess its progress not just in terms of how close we are to meeting the aspiration – a world where atrocity crimes are prevented or minimized – but also in terms of how it has changed expectations. Moreover, that assessment should take place in relation to other normative projects. The principle of RtoP is still in the early stages of what is a long and uneven journey. The international human rights regime, for example, while powerfully expressed in 1945, has taken decades to mature and catalyze concrete changes in state behavior. The historian Samuel Moyn has shown that it was only after important breakthroughs in the 1970s – such as the 1975 Helsinki Accords (which included their famous ‘human rights basket’) and the awarding of the Nobel Peace Prize to Amnesty International in 1977 – that the implementation of human rights commitments began to have force.[2] Some commentators seem to hold the responsibility to protect to a particularly demanding standard in terms of both what it should have achieved, and by when.

 

I argue that we should see the glass as half full, rather than half empty. But this conclusion rests on a particular understanding of what RtoP is (and what it is not) and what it can reasonably be expected to do.

 

Assessing the current landscape

It is painfully clear that, despite repeated calls to “never again” allow the most terrible forms of persecution and violence to occur, atrocity crimes remain a feature of the 21st century landscape. In fact, in 2014-15, acts that may constitute genocide, war crimes, ethnic cleansing and crimes against humanity were occurring in the Central African Republic, the Democratic Republic of the Congo, the Democratic Republic of North Korea, Iraq, Libya, Nigeria, South Sudan, Sudan, Syria, and Yemen. The majority of these acts have been perpetrated by governments or by factions supported by governments. But the overall sense of crisis now confronted by the international community is heightened by the emergence of violent extremists – such as ISIL, Boko Haram, and Al-Shabaab – who brazenly flout international humanitarian law and glorify their crimes. Taken together, these situations have created protection challenges of a monumental scale and produced widespread humanitarian crises, including the highest number of displaced persons since the end of the Second World War.

 

In more general terms, too many Member States of the United Nations have yet to become parties to the international conventions that set out the legal framework for the prevention and punishment of atrocity crimes, including the Convention on the Prevention and Punishment of the Crime of Genocide, the Geneva Conventions and the Rome Statute of the International Criminal Court. And even among those who have ratified these relevant legal instruments, there is an alarming decline in respect for international humanitarian and human rights law, particularly in situations where national authorities argue that exceptional security threats or political crises justify abrogation from their legal obligations.  Today’s conflicts involve a much greater use of explosive weapons in populated areas, with devastating effects on civilians; regular attacks on schools, markets, hospitals and medical personnel; targeting of critical civilian infrastructure (including water facilities); and the denial of access to civilian-populated areas by humanitarian convoys that carry life-saving supplies. The scale of this civilian harm is not the tragic but inevitable consequence of what happens in the ‘fog of war’, but rather the result of conscious choices made by warring sides.

 

It would be tempting to view these trends as proof of RtoP’s failure. But to do so is to blame the principle rather than those charged with upholding it. As the scholar Alex Bellamy has recently argued, the responsibility to protect is “not a self-fulfilling principle”. It requires both will and capacity to bring it to life.  But it is also important to remember that RtoP is a political principle, with all of the strengths and weaknesses that this status entails. It does not create any new legal obligations, and nor can it – on its own – compel states to act. On the other hand, it can create political pressure around situations involving atrocity crimes and it can raise the political costs of inaction.

 

The progress represented by RtoP was to set down a political marker that atrocity crimes are no longer to be seen, as they were in the not so distant past, as matters of domestic jurisdiction. The principle has helped to create a category of acts that are, by their very nature, issues of international concern by establishing a “floor of decency”[3] beyond which states themselves agree that populations should not fall. This has changed the way in which the international community characterizes those situations that involve protection failures, and elevated expectations about what should occur when populations fall below that threshold. But the principle has not dictated what particular response should follow in every case, particularly in terms of military intervention. As a result, critics have been quick to claim that the lack of intervention in one case, and the presence of it in another, is evidence of RtoP’s weakness.[4]

 

But to evaluate RtoP’s success in terms of whether we see a consistent pattern of military intervention is to demand too little and too much. Too little, because there are many other tools and mechanisms that can be brought to bear to address situations featuring atrocity crimes. Assessing how the international community has responded to date, and how it could respond in future, requires analysis of these non-military means and the conditions under which they are effective. And too much, because – like all issue areas that touch on the use of coercive means – implementation of RtoP is profoundly shaped by the dynamics within, and unique structure of, the United Nations Security Council.

 

At a minimum, what RtoP demands is a ‘duty of conduct’ by members of the international community: to identify when atrocity crimes are being committed or are imminent and to deliberate on how different actors (national, regional and international) can and should respond. As I have argued elsewhere, this duty of conduct is particularly demanding for bodies such as the UN Secretariat, or the UN Human Rights Council, which do not have the same level of politicization built into their DNA as a body such as the Security Council.[5] But even here, the principle of RtoP has helped to shift expectations by raising the reputational costs for the Council in failing to act in the face of genocide, war crimes, ethnic cleansing, and crimes against humanity. One response to this reputational challenge, mounted by the French government, is to create a voluntary agreement among the Permanent Five Members of the Security Council to refrain from using the veto in situations featuring atrocity crimes.[6]  Despite the obvious political difficulties in reaching such agreement, it is surprising the degree to which the proposal continues to gather support among UN Member States.

 

RtoP’s Political and Practical Contributions

Far from having faded away, ten years from its formal adoption, the responsibility to protect is arguably more relevant than ever. As Secretary-General Ban ki-Moon has noted, RtoP “offers an alternative to indifference and fatalism” and constitutes a “milestone in transforming international concern about people facing mortal danger into meaningful response.”[7] The breadth of this change can be seen in the decisions and deliberations of a variety of intergovernmental bodies. The UN Security Council has adopted more than thirty resolutions and presidential statements that refer to the principle. Some have authorized peacekeeping missions that have explicitly referred to the need to support national authorities in upholding their responsibility to protect (such as in Mali, South Sudan and Cote d’Ivoire[8]), and others welcome the work of the Joint Office for the Prevention of Genocide and the Responsibility to Protect.[9] The General Assembly – the body charged in 2005 with developing the concept of RtoP – has held a formal debate, issued one resolution, and convened seven annual informal interactive dialogues on the subject. The Human Rights Council has adopted thirteen resolutions that feature the responsibility to protect and initiated commissions of inquiry that in some cases have found evidence of atrocity crimes and invoked the principle.[10] At the regional level, the African Commission on Human and Peoples’ Rights has adopted a resolution on strengthening the responsibility to protect in Africa[11] and the European Parliament has recommended full implementation of the principle by the European Union.[12]

 

But resolutions and declarations, on their own, are an insufficient measure of progress. Furthermore, they often invite uncomfortable reminders of the gap between rhetoric and action. I would therefore suggest two additional contributions made by the responsibility to protect over the last decade.

 

1) forging political consensus

First, the principle has helped to generate a political consensus amongst UN Member States on how to prevent and respond to atrocity crimes. This step forward may seem small, but it was no means a given when States began to discuss the responsibility to protect at the beginning of the 21st century. The progress is largely due to the particular formulation of RtoP in the Summit Outcome Document, which has proved far-sighted in a number of ways.

 

First, it employs a narrow scope. Limiting the principle of the responsibility to protect to the most serious international crimes (as opposed to more general human rights violations) has helped to ensure that the principle remains squarely focused on closing the distance between specific obligations under international law and the reality faced by populations at risk.

 

Second, the Summit Outcome Document clarifies more precisely who bears the responsibility to protect. It establishes that the primary responsibility to protect falls upon national authorities, and – perhaps most significantly – that this responsibility also entails prevention. But it also stipulates that the international community has a collective responsibility to provide assistance to states under stress and an obligation to take collective action in the most extreme situations when national authorities are either unwilling or unable to adequately protect their populations.

 

Third, while the responsibility to protect directs attention to the plight of individuals suffering from egregious forms of violence and persecution, it does so in a way that respects and strengthens state sovereignty. Indeed, the principle is premised on the conviction that Member States enhance their sovereignty when they protect populations from atrocity crimes.

 

Fourth, Member States reached a carefully crafted agreement that limits the potential for the principle to be abused in the pursuit of other political or strategic objectives. The responsibility to protect is governed by the collective security provisions in Chapters VI, VII and VIII of the United Nations Charter. It encourages a broad perspective on the types of instruments the international community can use to prevent and respond to atrocity crimes. It also maintains that the use of any coercive measures requires Security Council authorization, and therefore does not offer open-ended license for intervention.

 

These elements of the responsibility to protect have proven both politically and practically powerful. Politically, Member States now agree that prevention is at the core of RtoP, that international action should employ the full range of diplomatic, political and humanitarian measures, and that military force should only be considered as a measure of last resort. So, while there is continued contestation about particular aspects of RtoP  – as there is over much older normative advancements, such as human rights – the points of contention among Member States have diminished substantially over the past decade. Moreover, this consensus spans all regions. While some continue to argue that RtoP is a ‘Western’ concept, analysis of the empirical record of deliberation and action suggests otherwise.[13] As one recent multi-national study of state practice concluded: “<T>he core of the global political conflict over protection from atrocities has moved on. Most relevant actors around the globe accept the idea that the protection of populations from atrocity crimes is both a national and international responsibility.”[14]

 

Practically, the clear articulation of both the means available and the actors responsible for protection has enabled the UN Secretary-General to develop and elaborate a robust framework for implementation based on three equal and mutually-reinforcing pillars. Pillar I addresses how States can fulfill their primary responsibility to protect their populations; Pillar II outlines the collective responsibility of the international community to encourage and help States meet their responsibility to protect; and Pillar III elaborates options for timely and decisive response.[15] The three-pillar framework has helped to inspire a rapidly growing body of academic and policy literature that improves our understanding of how to anticipate and mitigate the risks associated with atrocity crimes. We simply know more than we did two decades ago about why some societies slide into this kind of systematic violence, and why others do not.[16] In turn, this analysis has helped to inform new tools for analyzing situations of concern, as well as the creation of new or enhanced early warning mechanisms – both inside and outside of the United Nations. It has also helped to direct attention to areas where more work is needed.

 

2) building new institutional capacity

RtoP’s second contribution is in catalyzing the creation of new institutional capacity to prevent and respond to atrocity crimes. According to a growing number of scholars who study the impact of norms, these kinds of policy mechanisms are crucial for moving from rhetorical commitment to ‘real-world’ implementation, as they help to routinize compliance.[17]

 

At the national level, fifty-one Member States of the UN and the European Union have now joined the Global Network of R2P Focal Points. Each participant has formally designated a senior official responsible for promoting implementation of the responsibility to protect at the national level and fostering international cooperation on atrocity crime prevention and response. Complementary networks have also emerged to address these challenges at the global and regional levels, such as the Global Action Against Mass Atrocity Crimes and the Latin American Network on Genocide and Mass Atrocity Prevention.

 

Within the United Nations, the most visible example of institutionalization is the creation of the Joint Office for the Prevention of Genocide and the Responsibility to Protect, which takes the lead on, inter alia, providing early warning to the organization and Member States on atrocity crime situations. More recently, the implementation of the Secretary General’s Human Rights Up Front initiative has spawned further institutional reforms to strengthen the link between early wary and early action in the UN system.[18] Elsewhere at the international level, institutionalization is less formal but no less significant. It has usually taken the form of enhanced coordination and engagement among a variety of actors and institutions in cases where atrocity crimes had been committed, or were imminent, such as Kyrgyzstan, Cote d’Ivoire, Guinea, Kenya, and – most recently – Burundi. These conscious efforts to forestall the commission of atrocity crimes, even if not fully effective, offer the strongest proof that such acts of violence are deemed matters of international (and not solely domestic) concern.

 

Conclusion

The responsibility to protect is firmly established as a principle that shapes the international community’s expectations about the need to prevent and respond to atrocity crimes. It also provides an invaluable framework that reinforces existing legal obligations, builds political consensus on the way forward, and provides practical policy and institutional guidance. While the last decade demonstrates that RtoP has not managed to translate commitment into action in every case, its endurance, and its aspiration, helps the international community to avoid both cynicism and paralysis in the face of seemingly intractable crises. The challenges of atrocity crimes may be daunting and the human cost staggering, but the means to prevent or halt them are not beyond our reach.

 

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[1] I use the term “atrocity crimes” exclusively to refer to the four acts specified in paragraph 138 of the 2005 World Summit Outcome. Genocide, war crimes and crimes against humanity are defined in international criminal law; ethnic cleansing, while not established as a distinct crime, includes acts that will regularly amount to one of the crimes, in particular genocide and crimes against humanity.

[2] Samuel Moyn, The Last Utopia: Human Rights in History (Belknap/Harvard, 2010).

[3] The phrase comes from R.J. Vincent. See Rights and International Relations (Cambridge: Cambridge University Press for the Royal Institute of International Affairs, 1986), p. 152.

[4] Aidan Hehir, ‘The Permanence of Inconsistency: Libya, the Security Council, and the Responsibility to Protect’, International Security 38 (1): 137-159 (2013).

[5] Jennifer M. Welsh, ‘Norm Contestation and the Responsibility to Protect’, Global Responsibility to Protect Global Responsibility to Protect 5 (4): 365-396 (2013).

[6] This proposal was first articulated publicly by then the French Minister for Foreign Affairs and International Development, Laurent Fabius. See “A Call for Self-Restraint at the UN”, The New York Times, 4 October 2013. Available at http://www.nytimes.com/2013/10/04/opinion/a-call-for-self-restraint-at-the-un.html?_r=2& (accessed 24 October 2014).

[7] Remarks to General Assembly Informal Interactive Dialogue on “A vital and enduring commitment: Implementing the responsibility to protect,” 8 September 2015.

[8] See Security Council resolutions 2085 (2012) on the situation in Mali, 1996 (2011) on the situation in South Sudan, and 1975 (2011) on the situation in Côte d’Ivoire.

[9] See, especially, Security Council resolutions 2150 (2014) and 2171 (2014).

[10] Most notable is the Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, (A/HRC/25/63).

[11]ACHPR/Res.117 (XXXXII) 07: Resolution on Strengthening the Responsibility to Protect in Africa.

[12] A7-0130/2013, European Parliament recommendation to the Council on the UN principle of the ‘Responsibility to Protect’ (‘R2P’).

[13]See the summary of research conducted by the Global Public Policy Institute in Philipp Rotmann, Gerrit Kurtz, and Sarah Brockmeier, ‘Major Powers and the Contested Evolution of a Responsibility to Protect, Conflict, Security & Development 14 (4): 355-3774 (2014).

[14] ‘Effective and Responsible Protection from Atrocity Crimes: Toward Global Action’, Global Public Policy Institute, Policy Paper, April 2015. Available at http://www.globalnorms.net/r2p. Accessed 12 June 2015.

[15] Report of the Secretary-General on Implementing the responsibility to protect, 2009 (A/63/677)

[16] For three examples of recent scholarship, see Scott Straus, Making and Unmaking Nations (Ithaca: Cornell University Press, 2015); Sheri P. Rosenberg, Tibi Galis, and Alex Zucker, eds., Reconstructing Atrocity Prevention (Cambridge: Cambridge University Press, 2015); and Serena Sharma and Jennifer Welsh, eds., The Responsibility to Prevent (Oxford: Oxford University Press, 2015).

[17] Alexander Betts and Philip Orchard, Implementation and World Politics: How International Norms Change Practice (Oxford: Oxford University Press, 2014).

[18] For a summary of the initiative and Action Plan, see http://www.un.org/sg/humanrightsupfront/.