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High Commissioner addresses Dublin's Trinity College on responsibility to protect
23 November 2007
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The surest means by which a state may avoid outside intervention is to recognize and itself insure respect for fundamental rights and liberties in the territories under its jurisdiction.
René Cassin, Nobel Lecture,
December 11, 1968
THE RESPONSIBILITY TO PROTECT AS A DUTY OF CARE IN
INTERNATIONAL LAW AND PRACTICE
By Louise Arbour
United Nations High Commissioner for Human Rights
Trinity College
Dublin
November 23, 2007
Prof. Binchy,
Members of Faculty,
Dear Students,
Ladies and Gentlemen,
I am glad that Mary Robinson, a Trinity College alumna herself, has paved the way for another United Nations High Commissioner for Human Rights to claim a connection with this august institution.
I wish to express my deepest gratitude for this opportunity to speak to you on a topic that, as I will try to explain, carries important implications for human rights theory and practice. I refer to an emerging doctrine known as responsibility to protect.
My discussion thus will focus on the content of this norm. I will specifically address the historical roots and development of the norm by describing its fundamental differences from the doctrine of humanitarian intervention. I shall also examine the legal heart of the responsibility to protect concept and questions of when and how the norm is engaged. Finally, my discussion will explore the role that the UN institutions can play in interpreting and applying the norm, as well as the mechanisms of cooperation in protection available to the international community.
Ladies and Gentlemen,
It may seem strange to advocate a doctrine that envisages the full engagement of the international community in confronting brutality at a time when the lessons from Iraq are prompting many in the United States and in other countries to reassess the wisdom of intervention in foreign lands.
It is perhaps unavoidable that, in the in the face of such disheartening returns from so much investment in blood, money and political capital in Iraq and elsewhere , some may feel tempted to dispense altogether with messy business overseas.1 Nonetheless, this sentiment is particularly regrettable now that the community of nations is progressively defining a framework for the prevention of, and protection against, state-sponsored slaughter. Indeed, it is critical to refine that framework and ensure its broad-based acceptance.
Whether one likes it or not, the fact is that the global web of our interdependence makes it altogether unpersuasive for anyone to claim a status of impotent and powerless bystander in the face of gross violations of human rights.
Moreover, indifference or inaction in the knowledge of violence, deprivation and abuse allow exclusion and resentment to fester. Those are the conditions that will ultimately affect everybody’s rights, security and welfare, even if they never make a serious call on our conscience.
It is therefore encouraging that according to a recent poll by the Chicago Council on Global Affairs and WorldPublicOpinion.org, a majority of public opinion in ten countries polled, believed that the UN Security Council has a responsibility to intervene in order to prevent “severe human rights violations such as genocide.”2
But how to concretely avert or restrain brutally abusive behaviour is a dilemma that the international community has long grappled with in its quest for responses that would be effective, as well as both legal and legitimate.
Dear Friends,
The debate had begun to crystallize in the 1970s when humanitarian reasons were either offered or assumed as part of the rationale for the intervention of India in East Pakistan (1971), Vietnam in Kampuchea (1978) and Tanzania in Uganda to overthrow Idi Amin (1979)—as well as for the French government’s support for the coup against Jean-Bédel Bokassa in Central Africa (1979). In each case, such interventions had followed large-scale atrocities, whether triggered by Pakistan’s brutal military repression of a secessionist movement, or by the horrors unleashed by the Khmer Rouge regime, and by African dictators.
None of these interventions had been authorized by the UN Security Council, although their executors claimed extreme necessity as a legitimate basis for action, a sentiment that many in the international community shared. However, with the exception of Tanzania’s invasion of Uganda, condemnations were equally quick to follow on the part of those who regarded these actions as naked pursuits of national self-interests in violation of Article 2 (4) of the UN Charter which sets out the norm of non-intervention. Thus, such interventions were considered and denounced as illegal and selective arrogation of power by the strong to trample over the sovereignty of the weak.3
The principle of non-interference in a sovereign State’s domestic affairs came under intense strain in the 1990s, however, as the Rwandan genocide, the atrocities in the former Yugoslavia, and a proliferation of devastating internal wars unfolded. It became increasingly clear then that sovereignty in and of itself should, at the very least, no longer shield perpetrators from punitive measures. After an abysmal failure of prevention, the UN Security Council, somewhat surprisingly, made a novel intrusion into the fortress of State sovereignty by creating the ad hoc tribunals for the former Yugoslavia and Rwanda. It is against this background and a groundswell of public opinion that doctrines on the right of humanitarian intervention acquired additional relevance.4
But the conceptual foundation of a “right” to intervene, as well as the uneven historical record of the recourse to force in rescue missions, continued to generate a storm of controversy. To begin with, the “right” to intervene is by definition discretionary. It is the prerogative of the intervener and has always been exercised as such, thereby creating a hierarchy among those who received protection and those whom the potential interveners could afford to ignore. The invocation of such right had also, not surprisingly, unleashed criticism from the many who questioned the interveners’ purity of intent and who denounced, plausibly or not, the self-serving agendas that they believed were hidden behind the pretence of humanitarianism.5
Dissecting the UN Charter in search of support or disclaimers, neither the advocates nor the detractors of humanitarian intervention gained a definitive upper hand. The need for responses, however, did not dissipate just because the debate had remained inconclusive. Quite the opposite occurred. As the then UN Secretary General Kofi Annan pointed out in his address to the 54th General Assembly in the aftermath of the intervention of NATO in Kosovo:
The inability of the international community in Kosovo to reconcile these two equally compelling interests - universal legitimacy and effectiveness in defense of human rights - has revealed the core challenge to the Security Council and the UN as a whole in the next century: to forge unity behind the principle that massive and systematic violations of human rights - wherever they may take place - should not be allowed to stand.6
It is against this background that a new norm, the concept of responsibility to protect, emerged to articulate the rationale and the methodology by which the international community should engage in the protection of those exposed to atrocities.
From its first tentative formulations by Washington-based scholars Francis Deng—now Special Representative of the Secretary-General for the Prevention of Genocide and Mass Atrocities—and Roberta Cohen, to its full-fledged elaboration by the International Commission on Intervention and State Responsibility in 2001, to its endorsement by the World’s leaders in 2005, the norm has undergone several variations and interpretations.7
I wish to state very clearly my view that the responsibility to protect norm is not, as some have suggested, a leap into wishful thinking. Rather, it is anchored in existing law, in institutions and in lessons learned from practice. Its vitality flows from its inherent soundness and justice, as well as from the concept’s comparative advantages over formulations of humanitarian intervention.
Allow me to review some of the norm’s salient features. Although the new norm shares with humanitarian intervention the same conviction that sovereignty is not absolute in an interdependent world, the responsibility to protect doctrine discards the notion of a “right” to intervene, as well as its corollary drawbacks. Rooted in human rights and international humanitarian law, the norm squarely embraces the victims’ point of view and interests, rather than questionable State-centered motivations. It does so by configuring a permanent duty to protect individuals against abusive behaviour. Such duty is a function of sovereignty and should be fulfilled primarily by the State concerned.8
Absent that State’s ability or willingness to discharge such obligations, the onus of protection falls by default upon the broader international community, which is then called upon to step in and help, or compel and—through appropriate authorization and in accordance with international law—even coerce States to put in place the requisite web of protection. At its core, the norm asserts a broad international public interest predicated on universal human rights, while appealing to the practical wisdom of confronting threats and ongoing abuses before a crisis unravels and cascades with unforeseeable consequences. To this effect, the protection duty encompasses a continuum of prevention, reaction, and commitment to rebuild, spanning from early warning, to diplomatic pressure, to coercive measures, to accountability for perpetrators and international aid. Thus, through a calibrated process, the norm is engaged from the earliest stages of a situation of concern. It fosters a return to normalcy, together with the restoration of the rule of law, respect for human rights and justice. Post-conflict engagement represents an integral part of protection, rather than an afterthought—thereby stimulating early reflection on the consequences of both inaction and overreaction. In sum, by forestalling reflexive triggers for the use of force and by introducing elements of accountability for responses given or omitted, the norm bars both quick fixes and even quicker exit strategies.9
However, detractors came forward even before the norm could be tested. These critics saw in the norm yet another incarnation of moral imperialism.10 Concerns over the rationale of “regime change” that the US and its allies employed to justify the war in Iraq only reinforced their suspicions. And once again the custodians of the orthodoxy of non-interference warned—arguably not without some reason—that the concept of responsibility to protect could be manipulated to become a license for the sole superpower to intervene whenever Washington sees fit and even if much of the world begs to differ.11
Yet recognition of the norm’s inherent merits came in 2005 when the World Summit endorsed the concept in a unanimous statement by world leaders. The Outcome Document of the Summit acknowledged that:
Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. The responsibility entails the prevention of such crimes, including their incitement…The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means…to help to protect populations…
The leaders committed themselves “to take collective action,” through the Security Council or relevant regional organizations, “should peaceful means be inadequate and national authorities are manifestly failing to protect their populations.”12
Moreover, in Resolution 1674 of 2006 on the protection of civilians in armed conflict, the United Nations Security Council, for its part, endorsed the approach of the Outcome Document. In the same year, with Resolution 1706, the Council cited the responsibility to protect principle in the context of a specific situation making clear “the responsibility of the Government of the Sudan to protect civilians under threat of physical violence.”
Ladies and Gentlemen,
The emergence of the new norm has, in my view, serious implications for the putative “intervener.” No longer holders of a discretionary right to intervene, all States are now burdened with the responsibility to take action under the doctrine of responsibility to protect. Arguably, this changes very little with respect to the offending or defaulting State (the recipient of international attention and action) and its political or military leaders. At the very least, under the Genocide Convention and its norms, which have been incorporated into international customary law, States have a duty to prevent genocide. Moreover, under the expanding reach of international criminal law, robust remedies have been fashioned—although not fully implemented—to enforce the prohibition against genocide, war crimes and crimes against humanity.
To date, however, outside the Genocide Convention, no firmly established doctrine has been formulated regarding the responsibility of third-party States in failing to prevent war crimes and crimes against humanity, let alone ethnic cleansing—which, it should be remembered, is not as such a legal term of art.
Thus, while countries which may assume that they could be targets of intervention have predictably expressed their ambivalence towards the new doctrine, surprisingly there has been scant resistance to the norm on the part of those countries that would most likely be the potential interveners. These latter countries have lost their “right” to intervene, a discretionary prerogative, and willingly acquired, instead, a responsibility for a failure to act, a failure for which, I suggest, they could be held accountable.
This lack of resistance may stem from confusion between the responsibility to protect norm and doctrines of pre-emptive use of force. While the former requires the providing of assistance to citizens of another country put at risk by their own government, the pre-emptive use of force is said to be part and parcel of the right to self-defense. It is the right to unilaterally avert attacks in the making and it, of course, preserves a State’s prerogative to act in circumstances that it deems compelling for its own protection and that of its people.
States’ lack of resistance regarding responsibility to protect may also depend on what kind of responsibility is understood to be engaged in the doctrine. If such responsibility is viewed as merely moral or political, the consequences of a failure to discharge it would be of limited concern-- if not altogether negligible--to the new duty bearers. But what would the consequences be if that responsibility carried legal implications and consequences? What if the failure to discharge the responsibility to protect made the defaulting State complicit in the atrocities or, at a minimum, constituted a separate actionable harm?
My argument here is that the heart of the responsibility to protect doctrine already rests upon an undisputed obligation of international law: the prevention and punishment of genocide.
Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide asserts that “genocide, whether committed in time of peace or in time of war, is a crime under international law which [States] undertake to prevent and to punish.” Most countries in the world are party to this treaty which, by broad agreement, reflects customary international law binding on all States. The recognition of genocide as a crime under international law deserving of punishment goes back to, at least, the Genocide Convention of 1948. This crime is also included in the statutes of the international criminal tribunals for the former Yugoslavia and Rwanda and the Rome Statute of the International Criminal Court.
The same status of crime under international law pertains to two other kinds of conduct which the responsibility to protect concept specifically seeks to prevent and punish: war crimes and crimes against humanity. The jurisprudence of international criminal tribunals in respect to genocide, war crimes and crimes against humanity has given rich and detailed meaning to the nature and scope of these crimes. At the domestic level, the number of national jurisdictions that have explicitly incorporated these crimes into their national law reflects the particularly abhorrent criminality of this conduct, and operationalizes at the national level the legal obligation to punish these crimes.
If international criminal law, then, already covers in full the punishment component of responsibility to protect what can it say regarding its prevention element?
Again, Article 1 of the Genocide Convention is informative. It states that: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent [emphasis added] and to punish.”
The International Court of Justice, in the context of the State-to-State disputes that are its province, elaborated on this preventive dimension in its recent judgment in the case of Bosnia-Herzegovina v Serbia.13 Specifically, the Court found Serbia in violation of article 1 of the Genocide Convention, for failure to prevent genocide, not in its own territory, but in the territory of another, neighboring State. On why this was so, and what questions this poses for other States and other situations, I will return, but the key legal lesson in the Court’s opinion is that the prevention of genocide is a legal obligation, and it is a justiciable obligation that one State effectively owes to the citizens of another State, outside its own territory.
The responsibility to protect norm, therefore, reiterates an existing legal obligation in relation to genocide. It is only reasonable to presume that it is the same kind of obligation that the Outcome Document was referring to in relation to war crimes and crimes against humanity, where it articulated the scope of responsibility to protect.
The question therefore is: does the obligation to prevent genocide under international law trigger a duty to intervene in the specific circumstances of an individual case? And if so, when and how? Further, what are the consequences of a breach of that obligation? The judgment of the International Court of Justice on Bosnia and Herzegovina v. Serbia and Montenegro is helpful in determining the scope of a responsibility to prevent.
In finding that Serbia had failed in its obligation to prevent genocide in neighboring Bosnia, the Court was careful to describe the scope of States responsibility in this respect as "one of conduct and not one of result.”14 The Court elaborated that “the obligation of States is rather to employ all means reasonably available to them, so as to prevent genocide as far as possible".15 Thus, responsibility is incurred "if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide".16 Elsewhere the Court restates it thus: "If the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harboring specific intent, it is under a duty to make use of these means as the circumstances permit".17 In a nutshell, the Court posits that States must "do their best" to ensure that acts of genocide do not occur.18 The Court invokes here a notion of "due diligence," a concept well understood in international human rights law in relation to the positive obligation of a State to act in response to threats to human rights, notably to the life and security of the person within its own jurisdiction.
Having defined this obligation, the Court then sets out what it describes as "various parameters" to assess whether a State has discharged this obligation. The first parameter is the State's capacity to influence effectively the action of persons likely to commit, or committing, genocide. This capacity depends on geographical distance from the scene of events, the strength of political links, as well as "links of all other kinds," between the State's authorities and the main actors in the events. Of course, such influence as is available to be exercised must occur within the limits of conduct permitted by international law. The Court goes on to emphasize the importance of State's individual efforts in the context of collective responsibility, for "the possibility remains that the combined efforts of several States, each complying with its obligation to prevent, might have achieved the result—averting the commission of genocide—which the efforts of only one State were insufficient to produce".
On the temporal issue of when the duty to so act arises, the Court applies a broad test of actual or constructive knowledge, according to which "the duty to act arise[s] at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed."
The novelty of this statement of relationships of proximity and knowledge as between States has already been much remarked and may strike some as a rather generous, catch-all proposition. Lawyers, though, might be more confident that such an approach is actually a workable proposition well known to the common law in the area of torts, with its analysis of a duty of care between the parties based on proximity, justice and reasonableness carrying with it an obligation to act reasonably on the basis of real or imputed knowledge. What the Court posits is, at heart, an internationalized form of duty of care, as between States, already well known in domestic legal systems as between private litigants.
On the facts of the specific case under review, the Court examined in detail the influence wielded by Serbia over the agents guilty of genocide in a neighboring State, including “the strength of the political, military and financial links” in question.19 Coupled with Serbia’s inaction, the breach of the obligation was made out. The particular closeness of the relationship in question was clarified by the Court’s observation that Serbia’s position of influence was “unlike that of any other States parties to the Genocide Convention.”20 Might the judgment, however, also carry responsibilities not only for Serbia and its surrogates in Bosnia Herzegovina, but also to other States parties to the Convention, and indeed to the wider international community? Certainly, the logic of the judgment would suggest such an assumption. In concrete terms, might it thus be suggested that all such tools as are at a State's disposal—in all areas of State authority, be it economic, political, diplomatic, or other—must be reasonably utilized, consistently with international law, in ways which might reasonably contribute to preventing genocide or deterring perpetrators? The Serbia example demonstrates that at least these tools of authority must be employed by neighboring or regional States which are well positioned to exert influence and are likely to possess information about the reality of the relevant risks.
But what about other States, those that because of their pre-eminence, global reach and capabilities may also be in a position to act?
I posit that because of the power they wield and due to their global reach, the members of the Security Council, particularly the Permanent Five Members (P5) hold an even heavier responsibility than other States to ensure the protection of civilians everywhere. If their responsibility were to be measured in accordance with the International Court of Justice’s analysis, it would seem logical to assume that a failure to act could carry legal consequences and even more so when the exercise or threat of a veto would block action that is deemed necessary by other members to avert genocide, or crimes against humanity.21
The International Commission on Intervention and State Responsibility noted that the P5 veto power remains “the principal obstacle” to effective and prompt responses that might stop or avert a significant humanitarian crisis. The Commission further recommended that on matter of grave humanitarian concern and when their vital national interests were not involved, the P5 should agree not to exert their veto prerogatives.22
The responsibility to protect doctrine may force a reassessment of the consequences of the use of the veto power specifically, as well as the perils of inaction more generally. In this sense, one might speak of an emerging notion of "international public interest." To serve such an international public interest, States should not only take all reasonable steps to prevent heinous crimes, but should also cease inhibiting other States from discharging their duty to protect when those States are willing and able to discharge their obligations.
In that context and keeping in mind the analysis on 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 vetoing States’ obligations under the Genocide Convention.23
Let me now turn to the element of “proximity” contained in the ICJ opinion in Bosnia and Herzegovina v. Serbia and Montenegro. As I mentioned previously, the opinion appears to put an additional onus on those States that are nearer to the theatre of a crisis and that, due also to their capacity to wield influence and their possession of information, are better positioned to prevent genocide.
Intriguingly, by mentioning “relevant regional organizations” in mobilizing appropriate action if national authorities fail, the World Summit’s Outcome Document, too, recognized what could be called the particular responsibility of neighbors in protection against genocide, crimes against humanity, ethnic cleansing and war crimes.
However, neither the Outcome Document, nor the Genocide Convention on which the ICJ opinion rests, exonerates other parties from their protection obligations. In other words, while proximity may matter most in terms of promptness and effectiveness of responses, it should not be used as a pretext for non-neighbors to avoid responsibility. Indeed, the concept of responsibility to protect holds that all States are concurrently burdened with a responsibility to protect which they share irrespective of their location. In short, proximity might have been predominantly and most obviously geographic in the Bosnia and Herzegovina v. Serbia and Montenegro case but, in principle, it calls for an examination of relevant links of all kinds: historic, political, economic, as well as geographic.
By applying the same logic that places a special responsibility on those countries that, due to their pre-eminence and special rights in the Security Council, are able to wield more influence, I would further argue that being better positioned to avert and respond to atrocities may have as much to do with the capacity to project power and mobilize resources beyond national and regional borders as with physical proximity. In this respect, too, powerful States may be reasonably expected to play a leading role in bolstering appropriate measures of prevention, dissuasion and remedy across a geographic spectrum commensurate with their weight, wealth, reach, and advanced capabilities.
Without overlooking the notion of presumption of innocence and staying within the context of preventive action, it is fair to say that perpetrators always seek to obfuscate reality, to discredit both the information that points to their culpability and those who provide it routinely demanding further proof. They question the bona fide credentials of those who accuse them, as well as the veracity of their sources. They stall or deflect action and will continue to have every incentive to rely on such tactics in the future. Buying time and spreading misinformation is, after all, in the perpetrators’ own self-interest.
But from the Holocaust, to the Rwandan genocide, to the crimes in Darfur, it has never been a lack of credible information that has prevented States from taking action.24 Moreover, avoiding action to avert or stop atrocities by hiding behind claims of ignorance or of a lack of unassailable evidence has become not only merely implausible, but altogether preposterous in an age of high-speed communications and sophisticated fact-finding technologies.
In any event, as Samantha Power has put it, we are also responsible for our incredulity. She went on to note:
The stories that emerge from genocidal societies are by definition incredible. That was the lesson the Holocaust should have taught us. In case after case of genocide, accounts that sounded far-fetched proved true… [W]e should long ago have shifted the burden of proof away from the refugees and to the skeptics, who should be required to offer persuasive reasons for disputing eyewitness claims.25
The heart of the matter is thus not whether information on the immediate danger of large-scale crimes or on their ongoing execution is available, but rather how such information is acted upon and the timing of responses.
Taking stock of the historical record of failures, the responsibility to protect concept, in my view, envisages a chain of tools and responses that are put into motion as information is gathered, corroborated, processed, shared and evaluated. Indeed, the various phases of prevention, reaction and rebuilding are necessarily shaped by the collection, accumulation and analysis of information. Further, as the ICJ suggested, the frontline responders should be those States who have first-hand and prior knowledge of the looming risk of genocide.26
Ladies and Gentlemen,
I believe that the responsibility to protect concept, if properly understood, implemented and enforced, provides both conceptual and practical avenues that could help fill the asymmetry between the magnitude of threats to human security and our ability to face up to them.
While the elements of influence, proximity and knowledge help shed additional light on when the responsibility to protect doctrine should be activated, as well as on who should be the premier “standard bearers” of the norm, its actualization obviously depends on States’ political will to follow through with the norm’s implications and to deploy the necessary resources to that effect.
The Outcome Document envisages a crucial role for the UN in the application of the responsibility to protect doctrine. In fact, if we were to apply an intelligent institutional design to match the different phases of the doctrine—prevention, reaction, rebuilding—existing institutional candidates emerge.
First, since impending genocide is almost invariably preceded by patterns of gross and systematic human rights violations, the Human Rights Council is—or should be—the pre-eminent forum for early warning and prevention. This new intergovernmental body was mandated by the General Assembly in 2005 to promote “universal respect for the protection of all human rights and fundamental freedoms for all.” Accordingly, the Council should monitor and respond to both acute and chronic human rights situations through its regular and special sessions. Moreover, the Council—which is active throughout the calendar year and which, thus, is increasingly looking more and more like a standing body—is in the process of putting in place a mechanism, the Universal Periodic Review (UPR), through which the human rights record and performance of all countries, starting with the Council’s own members, will be considered at regular intervals. This is meant to be undertaken in preventive rather than accusatorial mode, by employing an approach that may elicit or be conducive to cooperation from the State in question. It is also critical that the Council maintains a capacity to respond to emerging or recurring situations independently from the UPR cycle.
Second, 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, assuming that the situation has reached the point of constituting a threat to international peace and security...
Third, there is a dual set of institutions equipped to handle the responsibility for different aspects of the rebuilding phases of the responsibility to protect doctrine. The Peace Building Commission—the other new institution that the UN reform process created in 2005 with the mandate to facilitate post-conflict recovery—should be ideally suited to identify the institutional reconstruction, and economic development aspects of the responsibility to protect norm in the longer term.
Multilateral justice mechanisms are also available to the international community for addressing the “punishment” component of reconstruction. As the ICISS noted, a major new element in the international community’s protection armory is international criminal justice which has been and can be activated when domestic systems fail or collapse, or are manifestly iniquitous.27 This, too, is a facet of the international community’s “default” responsibility to protect and it is one of the tools through which perpetrators can be both deterred and held to account. 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 genocide law, is increasingly finding appropriate fora—and at times even competing venues. These courts’ interventions have defined with increased sophistication the substance of crimes and lines of responsibility. Above all, they have sent a clear message that perpetrators everywhere may no longer escape the reach of justice by shielding themselves behind the prerogatives of sovereign power.
In order to better activate appropriate mechanisms and deliver the most effective responses (from individual States or from States acting through the organs of the United Nations and other multilateral organizations), it is important to understand in what sequence the protection measures should be deployed.
Since the doctrine groups different tools along discrete phases, one may be tempted to believe that the available tools for protection come in rigid progression—ranging from the softest to the most muscular options. Thus, for example, early warning, development cooperation, and fact-finding and good office diplomacy are seen as belonging to prevention; sanctions, and the use of force as pertaining to reaction; aid, resource allocation, and institution activation as appropriate to the rebuilding process. In my view, however, such sequencing should not become a conceptual—and operative—straightjacket.
Although an escalating sequence may make sense in certain cases, it may also leave dangerous protection gaps in others.28 Consequently, we must ensure that we employ the pertinent mix of tools as circumstances require. In situations at risk or in the midst of conflict, experience teaches that there may be, for example, a need to build capacity to protect human rights, including early warning, among local communities while enforcing coercive measures against perpetrators. Or it may be necessary to shore up existing institutions that could ensure at least a modicum of protection and justice while military force is deployed. Further, if early warning points to the possible deterioration of conditions, it may be advisable to identify well in advance financial and human resources that could be employed before compassion fatigue has a chance to set in.
In sum, I think that the key to a successful outcome in protection largely depends on the foresight, flexibility and creativity with which we make use of our collective toolbox.
Dear Friends,
The responsibility to protect norm is part and parcel of the new vision of human security n that the Summit of the World’s leaders in 2005 endorsed. It presents itself with intellectual clarity, political usefulness and, I hope, eventually legal enforceability. UN institutions are equipped to help States implement the doctrine. Whether they will actually do so, depends largely on UN Member States’ political will.
Two years have gone by since all States acknowledged at the Summit not only their obligations towards their own people, but crucially, that the international community has a duty to intervene 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. Although the norm has recently been invoked by the US Secretary of State and others to respond to, and put an end to atrocities in Darfur, consensus on how and when to activate it vis-à-vis both Darfur and other crises remains elusive.
Moreover, in the opinion of some responsibility to protect advocates, attempts to expand the doctrine to cover “lesser crimes” and abuses—in addition to the four categories listed in the Outcome Document—have not only weakened the sense of urgency and effectiveness of the doctrine. Such attempts, these advocates argue, may also discredit the norm altogether by making it a coat for all seasons rather than a remedy against the worst of crimes as it was always intended to be.29
Phrased that generally, this concern is not justified. Whether we call it responsibility to protect or anything else, States do have a responsibility under existing international law vis-à-vis the people on their territory, to extent protection equally against genocide as against famine, disease, ignorance, deprivation of the basic necessities of life, discrimination and the lack of freedom. To suggest otherwise would be a very regressive and legally untenable position.
If responsibility to protect is understood mainly as referring to a State’s obligation outside of that State’s territory, there is more substance to the objection. At this stage, not all serious human rights violations require action by external parties. In that sense, they fall outside the protective framework of the responsibility to protect norm as set out in the Outcome Document.
In short, if the responsibility to protect doctrine were primarily designed to assert the responsibility of States vis-à-vis their own people, then it would be too narrowly framed and essentially do no more than replicate existing international law. In my view, it was instead primarily meant to address the responsibility of the larger international community. In that, its scope is probably just right, for now.
We are in the early stages of a doctrine that holds enormous promise for the extension of the protective reach of the law. We should not be too timid in our advocacy in support of that doctrine for fear that it will meet insurmountable resistance. Here again, we must have faith that the fundamental justice of the cause will prevail.
Thank you.
1 Robert D. Kaplan, “Foreign Policy Munich Versus Vietnam,” Atlantic Unbound, May 4, 2007, see also Carl Minzner, “No matter how the war ends, the United States must stay engaged in the world,” Christian Science Monitor, June 19, 2007.
2 Chicago Council on Global Affairs and WorldOpinion.org, Publics Around the World Say UN Has Responsibility to Protect Against Genocide, pp. 1-2, available at
http://www.thechicagocouncil.org/UserFiles/File/POS%20Topline%20Reports/Genocide_report.pdf
3 For a discussion of early military humanitarian intervention and the rationale of intervening see Thomas M. Frank, “Interpretation and Change in the Law of Humanitarian Intervention,” in Humanitarian Intervention, Ethical, Legal and Political Dilemmas, J. L. Holzgrefe and Robert O. Keohane, eds. (Cambridge: Cambridge University Press 2007), pp. 204-231; For the ethical and legal implications of the norm see Fernando Teson, Humanitarian Intervention: An Inquiry into Law and Morality (Irvington-on-Hudson: NY: Transnational Publishers 1997).
4 ICISS, Report of the International Commission on Intervention and State Sovereignty (Ottawa: The International Development Research Centre 2001), pp. vii-viii; and Jane Stromseth, “Rethinking Humanitarian Intervention: the Case for Incremental Change,” in Humanitarian Intervention, Ethical, Legal and Political Dilemma, pp. 233-271.
5Gareth Evans, “From Principle to Practice: Implementing The Responsibility to Protect,” Keynote Address, to Egmont (Royal Institute of International Affairs) Conference and Expert Seminar From Principle to Practice: Implementing the Responsibility to Protect, Brussels, 26 April 2007.
6 Kofi Annan, Address to the 54th Session of the UN General Assembly, 20 September 1999, reprinted in Kofi Annan, The Question of Intervention: Statements by the Secretary-General (New York: United Nations Department of Public Information 1999), p. 39.
7 Roberta Cohen and Francis M. Deng, “Normative Framework of Sovereignty,” in Deng et al., Sovereignty as Responsibility: Conflict Management in Africa (Washington, DC: Brookings Institution Press 1996), ICISS, Report of the International Commission on Intervention and State Sovereignty; United Nations General Assembly 60th session, Resolution adopted by the General Assembly 60/1. 2005, World Summit Outcome, 24 October 2005.
8 ICISS, Report of the International Commission on Intervention and State Sovereignty.
9 Ibid.
10 Alex de Waal, “No Such Thing as Humanitarian Intervention: Why We Need to Rethink How to Realize the “Responsibility to Protect” in Wartime,” Harvard International Review, December 2007, available at http://hir.harvard.edu/articles/1482/1/
11 Gareth Evans, “From Principle to Practice: Implementing The Responsibility to Protect,” Keynote Address ; see also Larissa Fast, “The ambiguities of protecting the vulnerable,” The Ploughshares Monitor, Winter 2002, volume 23, no. 4, available at http://ploughshares.ca/libraries/monitor/mond02e.html
12 United Nations General Assembly 60th session, Resolution adopted by the General Assembly 60/1. 2005, World Summit Outcome, 24 October 2005, paras 138 and 139.
13 International Court of Justice, , Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide,(Bosnia and Herzegovina v. Serbia and Montenegro,) General List, No. 91, 26 February 2007, available at http://www.icj-cij.org/docket/files/91/13685.pdf
14 Judgment, para 430.
15 Ibid.
16 Ibid.
17Ibid., para. 431.
18 Ibid., para 432.
19 Ibid., at 434.
20 Ibid.
21 According to research of the Global Policy Forum, 261 vetoes have been cast since the foundation of the UN. An official United Nations veto list, covering 1946 to April 2004, is accessible in document A/58/47. As many as 98 of the vetoes cast between 1946 and 2002 were either about the election of a new Secretary-General or the election of new members. Vetoes that were not about a Secretary-General or new members were cast because the issues concerned touched a vital interest of a permanent member, such as the issues of Taiwan (in the case of China) and Israel (in the US case).
22 ICISS, Report of the International Commission on Intervention and State Sovereignty, p. 51.
23 José E. Alvarez argues that: “If there is such a thing as a responsibility to protect, the legal mind naturally assumes that a failure to exercise such responsibility is an internationally wrongful act entailing the usual panoply of potential remedies, including the legal liability of the wrongful actor and the potential for countermeasures against that actor by others.” He posits that such approach, involving State responsibility, but also, potentially, the responsibility of the UN as an organization acting through its organs and representatives opens a legal conundrum. José E. Alvarez ,“The Schizophrenias of R2P,” Panel Presentation at the 2007 Hague Joint Conference on Contemporary Issues of International Law: Criminal Jurisdiction 100 Years After the 1907 Hague Peace Conference, The Hague, The Netherlands, June 30, 2007, available at http://www.asil.org/pdfs/r2pPanel.pdf
But discussions of the International Law Commission have demonstrated the difficulties in devising a coherent and consistent theory of liability of international organizations. My point however is that the veto cast by a State in the Security Council is best assessed as an act of that State, rather than an act properly attributable to the Security Council as an organ (in fact a majority of members may have voted in favor of the same measure) or to the UN as an organization. In addition, in this area of the law as in others that are familiar to lawyers both internationally and domestically, the rationale for acts of omission can differ sharply from commission, and a theory of potential liability for the Security Council for failure to act engages many of these difficulties. Retaining the analytical focus on the State is, to my view, in equal measure appropriate, realistic and fair.
24 See generally, Samantha Power, A Problem from Hell: America and the Age of Genocide (New York: Basic Books 2002).
25 Ibid., pp. 505-6.
26 Simon Chesterman, “This Time too the UN has no Intelligence,” International Herald Tribune, April 22, 2006.
27 ICISS, Report of the International Commission on Intervention and State Sovereignty, p. 24.
28 Jennifer Welsh et al., The Responsibility to Protect: Assessing the Report of the International Commission on Intervention and State Sovereignty, 57 International Journal, Autumn 2002, pp. 489-512, and in particular 505-506.
29For example, Gareth Evans, one of the earliest proponents and most fervent advocates of the RtoP norm noted: “A second class of unhelpful friends of R2P are those who view the concept not too narrowly, just in military terms, but far too broadly, as a way of referring to most of the world’s ills. We find people saying isn’t there a responsibility to protect people against HIV/AIDS, or against the security impact of climate change, or the consequences of civil conflict in Nepal, or the proliferation of nuclear weapons at one end of the scale to small arms at the other.” Gareth Evans, “From Principle To Practice – Implementing The Responsibility To Protect,” Keynote Address by Gareth Evans, President, International Crisis Group and Co-Chair of International Commission on Intervention and State Sovereignty, to Egmont (Royal Institute of International Affairs) Conference and Expert Seminar From Principle to Practice: Implementing the Responsibility to Protect, Brussels, 26 April 2007, available at http://www.crisisgroup.org/home/index.cfm?id=4802&l=1
René Cassin, Nobel Lecture,
December 11, 1968
THE RESPONSIBILITY TO PROTECT AS A DUTY OF CARE IN
INTERNATIONAL LAW AND PRACTICE
By Louise Arbour
United Nations High Commissioner for Human Rights
Trinity College
Dublin
November 23, 2007
Prof. Binchy,
Members of Faculty,
Dear Students,
Ladies and Gentlemen,
I am glad that Mary Robinson, a Trinity College alumna herself, has paved the way for another United Nations High Commissioner for Human Rights to claim a connection with this august institution.
I wish to express my deepest gratitude for this opportunity to speak to you on a topic that, as I will try to explain, carries important implications for human rights theory and practice. I refer to an emerging doctrine known as responsibility to protect.
My discussion thus will focus on the content of this norm. I will specifically address the historical roots and development of the norm by describing its fundamental differences from the doctrine of humanitarian intervention. I shall also examine the legal heart of the responsibility to protect concept and questions of when and how the norm is engaged. Finally, my discussion will explore the role that the UN institutions can play in interpreting and applying the norm, as well as the mechanisms of cooperation in protection available to the international community.
Ladies and Gentlemen,
It may seem strange to advocate a doctrine that envisages the full engagement of the international community in confronting brutality at a time when the lessons from Iraq are prompting many in the United States and in other countries to reassess the wisdom of intervention in foreign lands.
It is perhaps unavoidable that, in the in the face of such disheartening returns from so much investment in blood, money and political capital in Iraq and elsewhere , some may feel tempted to dispense altogether with messy business overseas.1 Nonetheless, this sentiment is particularly regrettable now that the community of nations is progressively defining a framework for the prevention of, and protection against, state-sponsored slaughter. Indeed, it is critical to refine that framework and ensure its broad-based acceptance.
Whether one likes it or not, the fact is that the global web of our interdependence makes it altogether unpersuasive for anyone to claim a status of impotent and powerless bystander in the face of gross violations of human rights.
Moreover, indifference or inaction in the knowledge of violence, deprivation and abuse allow exclusion and resentment to fester. Those are the conditions that will ultimately affect everybody’s rights, security and welfare, even if they never make a serious call on our conscience.
It is therefore encouraging that according to a recent poll by the Chicago Council on Global Affairs and WorldPublicOpinion.org, a majority of public opinion in ten countries polled, believed that the UN Security Council has a responsibility to intervene in order to prevent “severe human rights violations such as genocide.”2
But how to concretely avert or restrain brutally abusive behaviour is a dilemma that the international community has long grappled with in its quest for responses that would be effective, as well as both legal and legitimate.
Dear Friends,
The debate had begun to crystallize in the 1970s when humanitarian reasons were either offered or assumed as part of the rationale for the intervention of India in East Pakistan (1971), Vietnam in Kampuchea (1978) and Tanzania in Uganda to overthrow Idi Amin (1979)—as well as for the French government’s support for the coup against Jean-Bédel Bokassa in Central Africa (1979). In each case, such interventions had followed large-scale atrocities, whether triggered by Pakistan’s brutal military repression of a secessionist movement, or by the horrors unleashed by the Khmer Rouge regime, and by African dictators.
None of these interventions had been authorized by the UN Security Council, although their executors claimed extreme necessity as a legitimate basis for action, a sentiment that many in the international community shared. However, with the exception of Tanzania’s invasion of Uganda, condemnations were equally quick to follow on the part of those who regarded these actions as naked pursuits of national self-interests in violation of Article 2 (4) of the UN Charter which sets out the norm of non-intervention. Thus, such interventions were considered and denounced as illegal and selective arrogation of power by the strong to trample over the sovereignty of the weak.3
The principle of non-interference in a sovereign State’s domestic affairs came under intense strain in the 1990s, however, as the Rwandan genocide, the atrocities in the former Yugoslavia, and a proliferation of devastating internal wars unfolded. It became increasingly clear then that sovereignty in and of itself should, at the very least, no longer shield perpetrators from punitive measures. After an abysmal failure of prevention, the UN Security Council, somewhat surprisingly, made a novel intrusion into the fortress of State sovereignty by creating the ad hoc tribunals for the former Yugoslavia and Rwanda. It is against this background and a groundswell of public opinion that doctrines on the right of humanitarian intervention acquired additional relevance.4
But the conceptual foundation of a “right” to intervene, as well as the uneven historical record of the recourse to force in rescue missions, continued to generate a storm of controversy. To begin with, the “right” to intervene is by definition discretionary. It is the prerogative of the intervener and has always been exercised as such, thereby creating a hierarchy among those who received protection and those whom the potential interveners could afford to ignore. The invocation of such right had also, not surprisingly, unleashed criticism from the many who questioned the interveners’ purity of intent and who denounced, plausibly or not, the self-serving agendas that they believed were hidden behind the pretence of humanitarianism.5
Dissecting the UN Charter in search of support or disclaimers, neither the advocates nor the detractors of humanitarian intervention gained a definitive upper hand. The need for responses, however, did not dissipate just because the debate had remained inconclusive. Quite the opposite occurred. As the then UN Secretary General Kofi Annan pointed out in his address to the 54th General Assembly in the aftermath of the intervention of NATO in Kosovo:
The inability of the international community in Kosovo to reconcile these two equally compelling interests - universal legitimacy and effectiveness in defense of human rights - has revealed the core challenge to the Security Council and the UN as a whole in the next century: to forge unity behind the principle that massive and systematic violations of human rights - wherever they may take place - should not be allowed to stand.6
It is against this background that a new norm, the concept of responsibility to protect, emerged to articulate the rationale and the methodology by which the international community should engage in the protection of those exposed to atrocities.
From its first tentative formulations by Washington-based scholars Francis Deng—now Special Representative of the Secretary-General for the Prevention of Genocide and Mass Atrocities—and Roberta Cohen, to its full-fledged elaboration by the International Commission on Intervention and State Responsibility in 2001, to its endorsement by the World’s leaders in 2005, the norm has undergone several variations and interpretations.7
I wish to state very clearly my view that the responsibility to protect norm is not, as some have suggested, a leap into wishful thinking. Rather, it is anchored in existing law, in institutions and in lessons learned from practice. Its vitality flows from its inherent soundness and justice, as well as from the concept’s comparative advantages over formulations of humanitarian intervention.
Allow me to review some of the norm’s salient features. Although the new norm shares with humanitarian intervention the same conviction that sovereignty is not absolute in an interdependent world, the responsibility to protect doctrine discards the notion of a “right” to intervene, as well as its corollary drawbacks. Rooted in human rights and international humanitarian law, the norm squarely embraces the victims’ point of view and interests, rather than questionable State-centered motivations. It does so by configuring a permanent duty to protect individuals against abusive behaviour. Such duty is a function of sovereignty and should be fulfilled primarily by the State concerned.8
Absent that State’s ability or willingness to discharge such obligations, the onus of protection falls by default upon the broader international community, which is then called upon to step in and help, or compel and—through appropriate authorization and in accordance with international law—even coerce States to put in place the requisite web of protection. At its core, the norm asserts a broad international public interest predicated on universal human rights, while appealing to the practical wisdom of confronting threats and ongoing abuses before a crisis unravels and cascades with unforeseeable consequences. To this effect, the protection duty encompasses a continuum of prevention, reaction, and commitment to rebuild, spanning from early warning, to diplomatic pressure, to coercive measures, to accountability for perpetrators and international aid. Thus, through a calibrated process, the norm is engaged from the earliest stages of a situation of concern. It fosters a return to normalcy, together with the restoration of the rule of law, respect for human rights and justice. Post-conflict engagement represents an integral part of protection, rather than an afterthought—thereby stimulating early reflection on the consequences of both inaction and overreaction. In sum, by forestalling reflexive triggers for the use of force and by introducing elements of accountability for responses given or omitted, the norm bars both quick fixes and even quicker exit strategies.9
However, detractors came forward even before the norm could be tested. These critics saw in the norm yet another incarnation of moral imperialism.10 Concerns over the rationale of “regime change” that the US and its allies employed to justify the war in Iraq only reinforced their suspicions. And once again the custodians of the orthodoxy of non-interference warned—arguably not without some reason—that the concept of responsibility to protect could be manipulated to become a license for the sole superpower to intervene whenever Washington sees fit and even if much of the world begs to differ.11
Yet recognition of the norm’s inherent merits came in 2005 when the World Summit endorsed the concept in a unanimous statement by world leaders. The Outcome Document of the Summit acknowledged that:
Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. The responsibility entails the prevention of such crimes, including their incitement…The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means…to help to protect populations…
The leaders committed themselves “to take collective action,” through the Security Council or relevant regional organizations, “should peaceful means be inadequate and national authorities are manifestly failing to protect their populations.”12
Moreover, in Resolution 1674 of 2006 on the protection of civilians in armed conflict, the United Nations Security Council, for its part, endorsed the approach of the Outcome Document. In the same year, with Resolution 1706, the Council cited the responsibility to protect principle in the context of a specific situation making clear “the responsibility of the Government of the Sudan to protect civilians under threat of physical violence.”
Ladies and Gentlemen,
The emergence of the new norm has, in my view, serious implications for the putative “intervener.” No longer holders of a discretionary right to intervene, all States are now burdened with the responsibility to take action under the doctrine of responsibility to protect. Arguably, this changes very little with respect to the offending or defaulting State (the recipient of international attention and action) and its political or military leaders. At the very least, under the Genocide Convention and its norms, which have been incorporated into international customary law, States have a duty to prevent genocide. Moreover, under the expanding reach of international criminal law, robust remedies have been fashioned—although not fully implemented—to enforce the prohibition against genocide, war crimes and crimes against humanity.
To date, however, outside the Genocide Convention, no firmly established doctrine has been formulated regarding the responsibility of third-party States in failing to prevent war crimes and crimes against humanity, let alone ethnic cleansing—which, it should be remembered, is not as such a legal term of art.
Thus, while countries which may assume that they could be targets of intervention have predictably expressed their ambivalence towards the new doctrine, surprisingly there has been scant resistance to the norm on the part of those countries that would most likely be the potential interveners. These latter countries have lost their “right” to intervene, a discretionary prerogative, and willingly acquired, instead, a responsibility for a failure to act, a failure for which, I suggest, they could be held accountable.
This lack of resistance may stem from confusion between the responsibility to protect norm and doctrines of pre-emptive use of force. While the former requires the providing of assistance to citizens of another country put at risk by their own government, the pre-emptive use of force is said to be part and parcel of the right to self-defense. It is the right to unilaterally avert attacks in the making and it, of course, preserves a State’s prerogative to act in circumstances that it deems compelling for its own protection and that of its people.
States’ lack of resistance regarding responsibility to protect may also depend on what kind of responsibility is understood to be engaged in the doctrine. If such responsibility is viewed as merely moral or political, the consequences of a failure to discharge it would be of limited concern-- if not altogether negligible--to the new duty bearers. But what would the consequences be if that responsibility carried legal implications and consequences? What if the failure to discharge the responsibility to protect made the defaulting State complicit in the atrocities or, at a minimum, constituted a separate actionable harm?
My argument here is that the heart of the responsibility to protect doctrine already rests upon an undisputed obligation of international law: the prevention and punishment of genocide.
Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide asserts that “genocide, whether committed in time of peace or in time of war, is a crime under international law which [States] undertake to prevent and to punish.” Most countries in the world are party to this treaty which, by broad agreement, reflects customary international law binding on all States. The recognition of genocide as a crime under international law deserving of punishment goes back to, at least, the Genocide Convention of 1948. This crime is also included in the statutes of the international criminal tribunals for the former Yugoslavia and Rwanda and the Rome Statute of the International Criminal Court.
The same status of crime under international law pertains to two other kinds of conduct which the responsibility to protect concept specifically seeks to prevent and punish: war crimes and crimes against humanity. The jurisprudence of international criminal tribunals in respect to genocide, war crimes and crimes against humanity has given rich and detailed meaning to the nature and scope of these crimes. At the domestic level, the number of national jurisdictions that have explicitly incorporated these crimes into their national law reflects the particularly abhorrent criminality of this conduct, and operationalizes at the national level the legal obligation to punish these crimes.
If international criminal law, then, already covers in full the punishment component of responsibility to protect what can it say regarding its prevention element?
Again, Article 1 of the Genocide Convention is informative. It states that: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent [emphasis added] and to punish.”
The International Court of Justice, in the context of the State-to-State disputes that are its province, elaborated on this preventive dimension in its recent judgment in the case of Bosnia-Herzegovina v Serbia.13 Specifically, the Court found Serbia in violation of article 1 of the Genocide Convention, for failure to prevent genocide, not in its own territory, but in the territory of another, neighboring State. On why this was so, and what questions this poses for other States and other situations, I will return, but the key legal lesson in the Court’s opinion is that the prevention of genocide is a legal obligation, and it is a justiciable obligation that one State effectively owes to the citizens of another State, outside its own territory.
The responsibility to protect norm, therefore, reiterates an existing legal obligation in relation to genocide. It is only reasonable to presume that it is the same kind of obligation that the Outcome Document was referring to in relation to war crimes and crimes against humanity, where it articulated the scope of responsibility to protect.
The question therefore is: does the obligation to prevent genocide under international law trigger a duty to intervene in the specific circumstances of an individual case? And if so, when and how? Further, what are the consequences of a breach of that obligation? The judgment of the International Court of Justice on Bosnia and Herzegovina v. Serbia and Montenegro is helpful in determining the scope of a responsibility to prevent.
In finding that Serbia had failed in its obligation to prevent genocide in neighboring Bosnia, the Court was careful to describe the scope of States responsibility in this respect as "one of conduct and not one of result.”14 The Court elaborated that “the obligation of States is rather to employ all means reasonably available to them, so as to prevent genocide as far as possible".15 Thus, responsibility is incurred "if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide".16 Elsewhere the Court restates it thus: "If the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harboring specific intent, it is under a duty to make use of these means as the circumstances permit".17 In a nutshell, the Court posits that States must "do their best" to ensure that acts of genocide do not occur.18 The Court invokes here a notion of "due diligence," a concept well understood in international human rights law in relation to the positive obligation of a State to act in response to threats to human rights, notably to the life and security of the person within its own jurisdiction.
Having defined this obligation, the Court then sets out what it describes as "various parameters" to assess whether a State has discharged this obligation. The first parameter is the State's capacity to influence effectively the action of persons likely to commit, or committing, genocide. This capacity depends on geographical distance from the scene of events, the strength of political links, as well as "links of all other kinds," between the State's authorities and the main actors in the events. Of course, such influence as is available to be exercised must occur within the limits of conduct permitted by international law. The Court goes on to emphasize the importance of State's individual efforts in the context of collective responsibility, for "the possibility remains that the combined efforts of several States, each complying with its obligation to prevent, might have achieved the result—averting the commission of genocide—which the efforts of only one State were insufficient to produce".
On the temporal issue of when the duty to so act arises, the Court applies a broad test of actual or constructive knowledge, according to which "the duty to act arise[s] at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed."
The novelty of this statement of relationships of proximity and knowledge as between States has already been much remarked and may strike some as a rather generous, catch-all proposition. Lawyers, though, might be more confident that such an approach is actually a workable proposition well known to the common law in the area of torts, with its analysis of a duty of care between the parties based on proximity, justice and reasonableness carrying with it an obligation to act reasonably on the basis of real or imputed knowledge. What the Court posits is, at heart, an internationalized form of duty of care, as between States, already well known in domestic legal systems as between private litigants.
On the facts of the specific case under review, the Court examined in detail the influence wielded by Serbia over the agents guilty of genocide in a neighboring State, including “the strength of the political, military and financial links” in question.19 Coupled with Serbia’s inaction, the breach of the obligation was made out. The particular closeness of the relationship in question was clarified by the Court’s observation that Serbia’s position of influence was “unlike that of any other States parties to the Genocide Convention.”20 Might the judgment, however, also carry responsibilities not only for Serbia and its surrogates in Bosnia Herzegovina, but also to other States parties to the Convention, and indeed to the wider international community? Certainly, the logic of the judgment would suggest such an assumption. In concrete terms, might it thus be suggested that all such tools as are at a State's disposal—in all areas of State authority, be it economic, political, diplomatic, or other—must be reasonably utilized, consistently with international law, in ways which might reasonably contribute to preventing genocide or deterring perpetrators? The Serbia example demonstrates that at least these tools of authority must be employed by neighboring or regional States which are well positioned to exert influence and are likely to possess information about the reality of the relevant risks.
But what about other States, those that because of their pre-eminence, global reach and capabilities may also be in a position to act?
I posit that because of the power they wield and due to their global reach, the members of the Security Council, particularly the Permanent Five Members (P5) hold an even heavier responsibility than other States to ensure the protection of civilians everywhere. If their responsibility were to be measured in accordance with the International Court of Justice’s analysis, it would seem logical to assume that a failure to act could carry legal consequences and even more so when the exercise or threat of a veto would block action that is deemed necessary by other members to avert genocide, or crimes against humanity.21
The International Commission on Intervention and State Responsibility noted that the P5 veto power remains “the principal obstacle” to effective and prompt responses that might stop or avert a significant humanitarian crisis. The Commission further recommended that on matter of grave humanitarian concern and when their vital national interests were not involved, the P5 should agree not to exert their veto prerogatives.22
The responsibility to protect doctrine may force a reassessment of the consequences of the use of the veto power specifically, as well as the perils of inaction more generally. In this sense, one might speak of an emerging notion of "international public interest." To serve such an international public interest, States should not only take all reasonable steps to prevent heinous crimes, but should also cease inhibiting other States from discharging their duty to protect when those States are willing and able to discharge their obligations.
In that context and keeping in mind the analysis on 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 vetoing States’ obligations under the Genocide Convention.23
Let me now turn to the element of “proximity” contained in the ICJ opinion in Bosnia and Herzegovina v. Serbia and Montenegro. As I mentioned previously, the opinion appears to put an additional onus on those States that are nearer to the theatre of a crisis and that, due also to their capacity to wield influence and their possession of information, are better positioned to prevent genocide.
Intriguingly, by mentioning “relevant regional organizations” in mobilizing appropriate action if national authorities fail, the World Summit’s Outcome Document, too, recognized what could be called the particular responsibility of neighbors in protection against genocide, crimes against humanity, ethnic cleansing and war crimes.
However, neither the Outcome Document, nor the Genocide Convention on which the ICJ opinion rests, exonerates other parties from their protection obligations. In other words, while proximity may matter most in terms of promptness and effectiveness of responses, it should not be used as a pretext for non-neighbors to avoid responsibility. Indeed, the concept of responsibility to protect holds that all States are concurrently burdened with a responsibility to protect which they share irrespective of their location. In short, proximity might have been predominantly and most obviously geographic in the Bosnia and Herzegovina v. Serbia and Montenegro case but, in principle, it calls for an examination of relevant links of all kinds: historic, political, economic, as well as geographic.
By applying the same logic that places a special responsibility on those countries that, due to their pre-eminence and special rights in the Security Council, are able to wield more influence, I would further argue that being better positioned to avert and respond to atrocities may have as much to do with the capacity to project power and mobilize resources beyond national and regional borders as with physical proximity. In this respect, too, powerful States may be reasonably expected to play a leading role in bolstering appropriate measures of prevention, dissuasion and remedy across a geographic spectrum commensurate with their weight, wealth, reach, and advanced capabilities.
Without overlooking the notion of presumption of innocence and staying within the context of preventive action, it is fair to say that perpetrators always seek to obfuscate reality, to discredit both the information that points to their culpability and those who provide it routinely demanding further proof. They question the bona fide credentials of those who accuse them, as well as the veracity of their sources. They stall or deflect action and will continue to have every incentive to rely on such tactics in the future. Buying time and spreading misinformation is, after all, in the perpetrators’ own self-interest.
But from the Holocaust, to the Rwandan genocide, to the crimes in Darfur, it has never been a lack of credible information that has prevented States from taking action.24 Moreover, avoiding action to avert or stop atrocities by hiding behind claims of ignorance or of a lack of unassailable evidence has become not only merely implausible, but altogether preposterous in an age of high-speed communications and sophisticated fact-finding technologies.
In any event, as Samantha Power has put it, we are also responsible for our incredulity. She went on to note:
The stories that emerge from genocidal societies are by definition incredible. That was the lesson the Holocaust should have taught us. In case after case of genocide, accounts that sounded far-fetched proved true… [W]e should long ago have shifted the burden of proof away from the refugees and to the skeptics, who should be required to offer persuasive reasons for disputing eyewitness claims.25
The heart of the matter is thus not whether information on the immediate danger of large-scale crimes or on their ongoing execution is available, but rather how such information is acted upon and the timing of responses.
Taking stock of the historical record of failures, the responsibility to protect concept, in my view, envisages a chain of tools and responses that are put into motion as information is gathered, corroborated, processed, shared and evaluated. Indeed, the various phases of prevention, reaction and rebuilding are necessarily shaped by the collection, accumulation and analysis of information. Further, as the ICJ suggested, the frontline responders should be those States who have first-hand and prior knowledge of the looming risk of genocide.26
Ladies and Gentlemen,
I believe that the responsibility to protect concept, if properly understood, implemented and enforced, provides both conceptual and practical avenues that could help fill the asymmetry between the magnitude of threats to human security and our ability to face up to them.
While the elements of influence, proximity and knowledge help shed additional light on when the responsibility to protect doctrine should be activated, as well as on who should be the premier “standard bearers” of the norm, its actualization obviously depends on States’ political will to follow through with the norm’s implications and to deploy the necessary resources to that effect.
The Outcome Document envisages a crucial role for the UN in the application of the responsibility to protect doctrine. In fact, if we were to apply an intelligent institutional design to match the different phases of the doctrine—prevention, reaction, rebuilding—existing institutional candidates emerge.
First, since impending genocide is almost invariably preceded by patterns of gross and systematic human rights violations, the Human Rights Council is—or should be—the pre-eminent forum for early warning and prevention. This new intergovernmental body was mandated by the General Assembly in 2005 to promote “universal respect for the protection of all human rights and fundamental freedoms for all.” Accordingly, the Council should monitor and respond to both acute and chronic human rights situations through its regular and special sessions. Moreover, the Council—which is active throughout the calendar year and which, thus, is increasingly looking more and more like a standing body—is in the process of putting in place a mechanism, the Universal Periodic Review (UPR), through which the human rights record and performance of all countries, starting with the Council’s own members, will be considered at regular intervals. This is meant to be undertaken in preventive rather than accusatorial mode, by employing an approach that may elicit or be conducive to cooperation from the State in question. It is also critical that the Council maintains a capacity to respond to emerging or recurring situations independently from the UPR cycle.
Second, 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, assuming that the situation has reached the point of constituting a threat to international peace and security...
Third, there is a dual set of institutions equipped to handle the responsibility for different aspects of the rebuilding phases of the responsibility to protect doctrine. The Peace Building Commission—the other new institution that the UN reform process created in 2005 with the mandate to facilitate post-conflict recovery—should be ideally suited to identify the institutional reconstruction, and economic development aspects of the responsibility to protect norm in the longer term.
Multilateral justice mechanisms are also available to the international community for addressing the “punishment” component of reconstruction. As the ICISS noted, a major new element in the international community’s protection armory is international criminal justice which has been and can be activated when domestic systems fail or collapse, or are manifestly iniquitous.27 This, too, is a facet of the international community’s “default” responsibility to protect and it is one of the tools through which perpetrators can be both deterred and held to account. 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 genocide law, is increasingly finding appropriate fora—and at times even competing venues. These courts’ interventions have defined with increased sophistication the substance of crimes and lines of responsibility. Above all, they have sent a clear message that perpetrators everywhere may no longer escape the reach of justice by shielding themselves behind the prerogatives of sovereign power.
In order to better activate appropriate mechanisms and deliver the most effective responses (from individual States or from States acting through the organs of the United Nations and other multilateral organizations), it is important to understand in what sequence the protection measures should be deployed.
Since the doctrine groups different tools along discrete phases, one may be tempted to believe that the available tools for protection come in rigid progression—ranging from the softest to the most muscular options. Thus, for example, early warning, development cooperation, and fact-finding and good office diplomacy are seen as belonging to prevention; sanctions, and the use of force as pertaining to reaction; aid, resource allocation, and institution activation as appropriate to the rebuilding process. In my view, however, such sequencing should not become a conceptual—and operative—straightjacket.
Although an escalating sequence may make sense in certain cases, it may also leave dangerous protection gaps in others.28 Consequently, we must ensure that we employ the pertinent mix of tools as circumstances require. In situations at risk or in the midst of conflict, experience teaches that there may be, for example, a need to build capacity to protect human rights, including early warning, among local communities while enforcing coercive measures against perpetrators. Or it may be necessary to shore up existing institutions that could ensure at least a modicum of protection and justice while military force is deployed. Further, if early warning points to the possible deterioration of conditions, it may be advisable to identify well in advance financial and human resources that could be employed before compassion fatigue has a chance to set in.
In sum, I think that the key to a successful outcome in protection largely depends on the foresight, flexibility and creativity with which we make use of our collective toolbox.
Dear Friends,
The responsibility to protect norm is part and parcel of the new vision of human security n that the Summit of the World’s leaders in 2005 endorsed. It presents itself with intellectual clarity, political usefulness and, I hope, eventually legal enforceability. UN institutions are equipped to help States implement the doctrine. Whether they will actually do so, depends largely on UN Member States’ political will.
Two years have gone by since all States acknowledged at the Summit not only their obligations towards their own people, but crucially, that the international community has a duty to intervene 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. Although the norm has recently been invoked by the US Secretary of State and others to respond to, and put an end to atrocities in Darfur, consensus on how and when to activate it vis-à-vis both Darfur and other crises remains elusive.
Moreover, in the opinion of some responsibility to protect advocates, attempts to expand the doctrine to cover “lesser crimes” and abuses—in addition to the four categories listed in the Outcome Document—have not only weakened the sense of urgency and effectiveness of the doctrine. Such attempts, these advocates argue, may also discredit the norm altogether by making it a coat for all seasons rather than a remedy against the worst of crimes as it was always intended to be.29
Phrased that generally, this concern is not justified. Whether we call it responsibility to protect or anything else, States do have a responsibility under existing international law vis-à-vis the people on their territory, to extent protection equally against genocide as against famine, disease, ignorance, deprivation of the basic necessities of life, discrimination and the lack of freedom. To suggest otherwise would be a very regressive and legally untenable position.
If responsibility to protect is understood mainly as referring to a State’s obligation outside of that State’s territory, there is more substance to the objection. At this stage, not all serious human rights violations require action by external parties. In that sense, they fall outside the protective framework of the responsibility to protect norm as set out in the Outcome Document.
In short, if the responsibility to protect doctrine were primarily designed to assert the responsibility of States vis-à-vis their own people, then it would be too narrowly framed and essentially do no more than replicate existing international law. In my view, it was instead primarily meant to address the responsibility of the larger international community. In that, its scope is probably just right, for now.
We are in the early stages of a doctrine that holds enormous promise for the extension of the protective reach of the law. We should not be too timid in our advocacy in support of that doctrine for fear that it will meet insurmountable resistance. Here again, we must have faith that the fundamental justice of the cause will prevail.
Thank you.
1 Robert D. Kaplan, “Foreign Policy Munich Versus Vietnam,” Atlantic Unbound, May 4, 2007, see also Carl Minzner, “No matter how the war ends, the United States must stay engaged in the world,” Christian Science Monitor, June 19, 2007.
2 Chicago Council on Global Affairs and WorldOpinion.org, Publics Around the World Say UN Has Responsibility to Protect Against Genocide, pp. 1-2, available at
http://www.thechicagocouncil.org/UserFiles/File/POS%20Topline%20Reports/Genocide_report.pdf
3 For a discussion of early military humanitarian intervention and the rationale of intervening see Thomas M. Frank, “Interpretation and Change in the Law of Humanitarian Intervention,” in Humanitarian Intervention, Ethical, Legal and Political Dilemmas, J. L. Holzgrefe and Robert O. Keohane, eds. (Cambridge: Cambridge University Press 2007), pp. 204-231; For the ethical and legal implications of the norm see Fernando Teson, Humanitarian Intervention: An Inquiry into Law and Morality (Irvington-on-Hudson: NY: Transnational Publishers 1997).
4 ICISS, Report of the International Commission on Intervention and State Sovereignty (Ottawa: The International Development Research Centre 2001), pp. vii-viii; and Jane Stromseth, “Rethinking Humanitarian Intervention: the Case for Incremental Change,” in Humanitarian Intervention, Ethical, Legal and Political Dilemma, pp. 233-271.
5Gareth Evans, “From Principle to Practice: Implementing The Responsibility to Protect,” Keynote Address, to Egmont (Royal Institute of International Affairs) Conference and Expert Seminar From Principle to Practice: Implementing the Responsibility to Protect, Brussels, 26 April 2007.
6 Kofi Annan, Address to the 54th Session of the UN General Assembly, 20 September 1999, reprinted in Kofi Annan, The Question of Intervention: Statements by the Secretary-General (New York: United Nations Department of Public Information 1999), p. 39.
7 Roberta Cohen and Francis M. Deng, “Normative Framework of Sovereignty,” in Deng et al., Sovereignty as Responsibility: Conflict Management in Africa (Washington, DC: Brookings Institution Press 1996), ICISS, Report of the International Commission on Intervention and State Sovereignty; United Nations General Assembly 60th session, Resolution adopted by the General Assembly 60/1. 2005, World Summit Outcome, 24 October 2005.
8 ICISS, Report of the International Commission on Intervention and State Sovereignty.
9 Ibid.
10 Alex de Waal, “No Such Thing as Humanitarian Intervention: Why We Need to Rethink How to Realize the “Responsibility to Protect” in Wartime,” Harvard International Review, December 2007, available at http://hir.harvard.edu/articles/1482/1/
11 Gareth Evans, “From Principle to Practice: Implementing The Responsibility to Protect,” Keynote Address ; see also Larissa Fast, “The ambiguities of protecting the vulnerable,” The Ploughshares Monitor, Winter 2002, volume 23, no. 4, available at http://ploughshares.ca/libraries/monitor/mond02e.html
12 United Nations General Assembly 60th session, Resolution adopted by the General Assembly 60/1. 2005, World Summit Outcome, 24 October 2005, paras 138 and 139.
13 International Court of Justice, , Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide,(Bosnia and Herzegovina v. Serbia and Montenegro,) General List, No. 91, 26 February 2007, available at http://www.icj-cij.org/docket/files/91/13685.pdf
14 Judgment, para 430.
15 Ibid.
16 Ibid.
17Ibid., para. 431.
18 Ibid., para 432.
19 Ibid., at 434.
20 Ibid.
21 According to research of the Global Policy Forum, 261 vetoes have been cast since the foundation of the UN. An official United Nations veto list, covering 1946 to April 2004, is accessible in document A/58/47. As many as 98 of the vetoes cast between 1946 and 2002 were either about the election of a new Secretary-General or the election of new members. Vetoes that were not about a Secretary-General or new members were cast because the issues concerned touched a vital interest of a permanent member, such as the issues of Taiwan (in the case of China) and Israel (in the US case).
22 ICISS, Report of the International Commission on Intervention and State Sovereignty, p. 51.
23 José E. Alvarez argues that: “If there is such a thing as a responsibility to protect, the legal mind naturally assumes that a failure to exercise such responsibility is an internationally wrongful act entailing the usual panoply of potential remedies, including the legal liability of the wrongful actor and the potential for countermeasures against that actor by others.” He posits that such approach, involving State responsibility, but also, potentially, the responsibility of the UN as an organization acting through its organs and representatives opens a legal conundrum. José E. Alvarez ,“The Schizophrenias of R2P,” Panel Presentation at the 2007 Hague Joint Conference on Contemporary Issues of International Law: Criminal Jurisdiction 100 Years After the 1907 Hague Peace Conference, The Hague, The Netherlands, June 30, 2007, available at http://www.asil.org/pdfs/r2pPanel.pdf
But discussions of the International Law Commission have demonstrated the difficulties in devising a coherent and consistent theory of liability of international organizations. My point however is that the veto cast by a State in the Security Council is best assessed as an act of that State, rather than an act properly attributable to the Security Council as an organ (in fact a majority of members may have voted in favor of the same measure) or to the UN as an organization. In addition, in this area of the law as in others that are familiar to lawyers both internationally and domestically, the rationale for acts of omission can differ sharply from commission, and a theory of potential liability for the Security Council for failure to act engages many of these difficulties. Retaining the analytical focus on the State is, to my view, in equal measure appropriate, realistic and fair.
24 See generally, Samantha Power, A Problem from Hell: America and the Age of Genocide (New York: Basic Books 2002).
25 Ibid., pp. 505-6.
26 Simon Chesterman, “This Time too the UN has no Intelligence,” International Herald Tribune, April 22, 2006.
27 ICISS, Report of the International Commission on Intervention and State Sovereignty, p. 24.
28 Jennifer Welsh et al., The Responsibility to Protect: Assessing the Report of the International Commission on Intervention and State Sovereignty, 57 International Journal, Autumn 2002, pp. 489-512, and in particular 505-506.
29For example, Gareth Evans, one of the earliest proponents and most fervent advocates of the RtoP norm noted: “A second class of unhelpful friends of R2P are those who view the concept not too narrowly, just in military terms, but far too broadly, as a way of referring to most of the world’s ills. We find people saying isn’t there a responsibility to protect people against HIV/AIDS, or against the security impact of climate change, or the consequences of civil conflict in Nepal, or the proliferation of nuclear weapons at one end of the scale to small arms at the other.” Gareth Evans, “From Principle To Practice – Implementing The Responsibility To Protect,” Keynote Address by Gareth Evans, President, International Crisis Group and Co-Chair of International Commission on Intervention and State Sovereignty, to Egmont (Royal Institute of International Affairs) Conference and Expert Seminar From Principle to Practice: Implementing the Responsibility to Protect, Brussels, 26 April 2007, available at http://www.crisisgroup.org/home/index.cfm?id=4802&l=1