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By Louise Arbour, United Nations High Commissioner for Human Rights
23 November 2007

Simply put the question is: what to do to prevent the unbridled and violent repression of peaceful protest in places like Myanmar; or atrocities in Darfur; or the bloody and repeated flaring up of long, drawn out conflicts as in Sri Lanka and in Colombia; or the perpetration of sexual violence that in countries like the Democratic Republic of Congo reaches pandemic proportions? Although good-for-all recipes to avoid and respond to abuse and disaster remain elusive, the World’s leaders agreed that, at least for the most heinous crimes, some answers can be found in an emerging doctrine known as “the responsibility to protect.”

That agreement was reached at the 2005 World Summit when all States acknowledged not only their obligation to protect their own people, but more crucially, that the international community has a duty to step in on behalf of civilians at risk of genocide, crimes against humanity, war crimes and ethnic cleansing whenever a government is either directly responsible for these crimes or incapable of stopping them. But consensus on how to activate the doctrine’s principles lags behind rhetorical exhortations. As a result, “responsibility to protect” remains a concept in search of committed champions, and most importantly, willing enforcers.

Yet the doctrine is both sensible and firmly grounded in existing international law. It articulates that State sovereignty carries responsibilities as well as prerogatives and that the exercise of sovereign power entails a permanent duty to protect individuals against state-sponsored or state-tolerated atrocities.

Absent a State’s ability or willingness to discharge such obligations, the onus of protection falls upon the international community, which is called on to assist or compel and—through appropriate authorization—even coerce States to put in place the requisite web of protection. Ultimately, the international community may exercise directly the protective function of the defaulting State. The norm appeals to the practical wisdom of confronting threats and ongoing abuses before a crisis worsens and cascades with unforeseeable consequences. To this effect, the protection duty encompasses a continuum of prevention, reaction, commitment to rebuild and to punish, spanning from early warning, to diplomatic pressure, to coercive measures, to conflict resolution and post-conflict reconstruction assistance as well as accountability for perpetrators. In sum, by forestalling reflexive triggers for the use of force and by introducing elements of accountability for responses either given or omitted, the norm precludes both quick fixes and even quicker exit strategies.

The heart of the responsibility to protect doctrine already rests upon an undisputed obligation of international human rights law: the prevention and punishment of genocide.

As for identifying exactly when the responsibility to prevent and protect is engaged, a close look at a recent opinion by the International Court of Justice is helpful. In Bosnia-Herzegovina v. Serbia, the Court held that when a State is enabled to act, by virtue of its proximity to the events, its knowledge—real or constructive—of the relevant facts, and its capacity to influence the outcome, that State has a “due diligence” obligation to employ all reasonable means that could avert genocide. This framework of analysis has interesting implications not only for States in immediate geographic proximity to an impending genocide, but also, in my view, for the larger responsibility of the international community acting through the organs of the United Nations.

In fact, if we were to apply an intelligent institutional design to match the three phases of responsibility to protect —prevention, reaction, rebuilding and punishment—natural institutional candidates would emerge.

First, the Human Rights Council, the intergovernmental body that just over a year ago replaced the once venerable, but in the end oft-criticized, Commission on Human Right, is—or should be—the pre-eminent forum for early warning and prevention.

Second and assuming that events have reached the level of constituting a threat to international peace and security, the reaction component of the responsibility to protect norm fits squarely within the range of diplomatic, dissuasive and coercive measures that the Security Council is empowered to deploy. In that context, and keeping in mind the analysis of the International Court of Justice, one has to wonder why the exercise of a veto blocking an initiative designed to reduce the risk of, or put an end to, genocide would not constitute a violation of the Genocide Convention.

Third, the Peace Building Commission—another new institution mandated to facilitate post-conflict recovery—should be ideally suited to lead the institutional reconstruction and development aspects of the responsibility to protect norm in the longer term.

Finally, as for the punishment component of the norm, international criminal justice has defined with increased sophistication the substance of crimes and lines of responsibility. From the Security Council-created ad hoc and special international tribunals, to the treaty-based International Criminal Court, to the exercise of universal jurisdiction by national courts, the legal responsibility to punish, clearly articulated in the genocide law, is increasingly finding appropriate fora—and at times even competing venues.

In sum, far from being a leap into wishful thinking, the responsibility to protect norm is a practical response to today’s human security challenges. .Instead of ritually claiming the status of impotent bystanders in the face of sovereign power’s abuse or force majeure, all States should clearly assess and act upon the scope of the responsibility that they willingly accepted as their own.

This op-ed was published by the following newspapers:
The Irish Times (Ireland)