Show Less
Full access

The Legacy of Crimes and Crises

Transitional Justice, Domestic Change and the Role of the International Community

Series:

Edited By Klaus Bachmann and Dorota Heidrich

The book shows how transitional justice experiences influence domestic change and what the role of the international community in these processes is. It is divided into three thematic parts. The first one presents regional and local transitional justice efforts, aiming at showing different mechanisms implemented within transitional justice mechanisms. The following part deals with the role and impact of international criminal tribunals set up to prosecute grave human rights abuses. The third part is devoted to the role of the international community in mass atrocity crimes prevention. The contributions prove that transitional justice measures are not universal. Rather, they must be characterized by the principle of local ownership and be crafted to circumstances on the ground.
Show Summary Details
Full access

Dorota Heidrich - Responsibility to Protect – a Tool for Atrocity Crimes Prevention?

| 217 →

Dorota Heidrich

Responsibility to Protect – An (In)effective Tool for Atrocity Crimes Prevention?

One of the most significant challenges for the international community in over two decades with regard to Human Rights protection and humanitarian issues has been mass atrocity crimes prevention. It is to this purpose that the concept of “Responsibility to Protect” (R2P) was devised.1 It is rooted in the endeavours to find the right way of reacting to heinous international crimes and – more generally – systematic abuses of Human Rights both in times of peace and during violent conflicts. The issue became especially important after the numerous failures of the international community to avert and halt horrific events in a series of crises around the world during 1990s. There is a stark contrast between the reluctance of the international community to take action in Rwanda 1994 and Srebrenica 1995 on the one hand, and the intervention in Kosovo 1999 and Libya 2011. In all these cases, there was no clear pattern which would have allowed to reconcile the principle of sovereignty with the protection of civilians. As Kofi Annan put it: “If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of Human Rights that offend every precept of our common humanity?”2 In its report of 2000, the International Independent Commission on Kosovo left no doubts that “experience from the NATO intervention in Kosovo suggests the need to close the gap between legality and legitimacy. The Commission believes that the time is now ripe for the presentation of a principled framework for humanitarian intervention which could be used to guide future ← 217 | 218 → responses to imminent humanitarian catastrophes and which could be used to assess claims for humanitarian intervention.”3

In reply to that call, the foreign minister of Canada declared in September 2000 that his government would fund the International Commission on Intervention and State Sovereignty (ICISS), mandated with preparing a report on how to reconcile Human Rights with state sovereignty and non-interference and on whether at all the international community could move on from the rigid interpretation of the UN Charter’s provisions about the use of force. The Commission’s report entitled Responsibility to Protect was published in December 2001.4

How much has been done since the release of the ICISS report? Have its recommendations been implemented? At the time of writing, the IRIN agency informed at the beginning of 2015, even though there were over ten thousand troops deployed throughout the Central African Republic, 1.5 million people faced insecurity, 2.7 million were in need of immediate humanitarian assistance.5 The total number of civilians killed in the fighting between Seleka and Anti-Balaka rebels remains unknown, but there are over four hundred thousand IDPs.6

Alarming news and information have been published about the situation in Syria. According to the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), the conflict has claimed 191,369 casualties; 12.2 million people are in need of humanitarian assistance (4.6 million in besieged or remote areas) and 7.6 million have been internally displaced.7

Another place where the international community is incapable of protecting the civilian population is the territory controlled by the so-called Islamic State,8 whose authorities do not abide even by the most basic humanitarian standards. ← 218 | 219 → The civilian population is targeted indiscriminately; religious, national and ethnic groups are being persecuted. As the Washington Director of Human Rights Watch, Sarah Margon, has put it: the Islamic State’s “campaign of killings is remarkably gruesome – they hide nothing, promote their atrocities via social media, and make clear they don’t subscribe to the same norms, values, laws, and standards that serve to guide the international community. Instead, ISIS employs an overt strategy of cruelty to sow fear and subdue populations under its control, bolstered by tactics that seem to be a throwback, if you will, to another era.”9 It is estimated that more than five hundred thousand Yazidis and other religious minorities have been driven from their homes.10 The genocide label has been appearing in the speeches made by both UN officials and world leaders.11

Elsewhere, the civilian population of the eastern parts of Ukraine has been under serious direct or indirect military pressure. The Ukrainian government lodged a declaration to the Registrar of the International Criminal Court (ICC) accepting ← 219 | 220 → ICC jurisdiction over alleged crimes committed on its territory from November 21, 2013 to February 22, 2014.12 However, this self-referral excludes events taking place in the area where military and paramilitary activities are on-going (eastern Ukraine). Another self-referral (Crimea and parts of eastern Ukraine) is currently being discussed in Kiev.13

Considering the above examples of recent serious Human Rights abuses which in some of the cases have already or may have already led to the commission of crimes, one needs to pose the question whether, and if at all – to what extent, R2P can be regarded as an effective tool of crimes prevention. In order to reply, it is first of all necessary to analyse the scope, content and character of R2P, then to see what preventive mechanisms are offered within the concept and – last but not least – whether at this point it has been possible to operationalize the preventive elements of R2P.

The Content of R2P and its Legal Character

The ICISS 2001 report’s findings are based on the idea of “sovereignty as responsibility”, whose roots are most often associated with a Sudanese diplomat, senior fellow at the Brookings Institution and former high UN official, Francis M. Deng. In 1996, Deng co-edited a book entitled Sovereignty as Responsibility. Conflict ← 220 | 221 → Management in Africa.14 Focusing on Africa, the authors of the volume introduced and explained the concept of ‘sovereignty as responsibility’, according to which sovereign states have a duty to protect their own citizens as they take primary responsibility for them. Moreover, states must not act in whatever way they wish to and expect the international community to refrain from criticism. The erosion of sovereignty in favour of Human Rights protection and humanitarian intervention was more than obvious to the authors of Sovereignty as Responsibility.15 At the same time, they expected states to remain responsible and to be held accountable for the consequences of their policies.16 However, when people are oppressed, their intrinsic power to hold their governments accountable becomes very limited, and the international community, as the ultimate guarantor of universal standards, needs to act.17 “It [the international community – DH] has a corresponding responsibility to provide innocent victims of internal conflicts and gross violations of Human Rights with essential protection and assistance.”18 The authors of the volume did not present a brand new approach towards sovereignty.19 It is worth mentioning that more than a year before the book was published, the Commission on Global Governance presented its findings in the report Our Global Neighbourhood (1995), in which it clearly stated that the Westphalian way of understanding state sovereignty had become out-dated and that the power of the sovereign was limited when human security issues were being negatively impacted.20 Closely reading Boutros Boutros Ghali’s Agenda for Peace (1992), one can detect a similar idea. Talking about how to bring peace to nations large and small, the former Secretary-General observed: “The time of absolute and exclusive sovereignty (…) has passed; its theory was never matched by reality. It is the task of leaders of States ← 221 | 222 → today to understand this and to find a balance between the needs of good internal governance and the requirements of an ever more interdependent world.”21

All these ideas formed the basis for the final analyses presented in the 2001 ICISS Report. It claims that the understanding of sovereignty must shift from sovereignty as control to sovereignty as responsibility. Furthermore, state sovereignty implies states’ primary responsibility for the protection of their people. Lastly, “where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.”22 R2P, according to the report, does not equal humanitarian intervention,23 the latter being defined as “action [most often of a military character – DH] taken against a state or its leaders, without its or their consent, for purposes which are claimed to be humanitarian or protective.24” According to the authors of the report, the simple fact of changing the language used to describe military action for humanitarian purposes may help forge negative associations. R2P is much broader than humanitarian intervention; not only does it encompass direct reactions to gross violations of Human Rights (where the last resort would be the use of military force), but it covers a whole range of activities under the so-called three pillars of R2P, i.e. the responsibility to prevent, the responsibility to react, and the responsibility to rebuild. The first element/pillar (responsibility to prevent) will be of special interest to the present analysis.

The responsibility to prevent mechanism is supposed “to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk.”25 It is quite clear that this part of R2P is of primary importance. If prevention works, there are no further steps necessary; neither turning to responsibility to react, nor moving into the direction of responsibility to rebuild. Had there been effective prevention in the former Yugoslavia, Rwanda, Sierra Leone, and other places struck by mass violations of Human Rights, no crimes would have been committed. At the same time, prevention is one of the most challenging tasks. It is difficult to test the universal effectiveness of preventive measures once they are in force. Any improvements may come only after the testing phase, when ← 222 | 223 → some elements appear imperfect.26 However, the more energy and resources are invested in prevention efforts, the more probable it becomes to avoid situations which amount to mass atrocity crimes. An effective strategy for mass atrocity crimes prevention must be a set of flexible mechanisms that can quickly be adapted to various situations; the general capacity for prevention already exists, however it is based on mechanisms and institutions which were established long ago. A well-functioning preventive architecture requires the existence of an early warning system that provides access to information and data, the analysis of which triggers alarms, which in turn lead to action. However, effectiveness of a preventive strategy to a large extent depends on one more factor – political will, which does not result from mere moral or legal obligations, but rather from states’ interests.27 The lack of political will can hamper or impede any preventive strategy, even the most perfect one. As Jennifer Welsh and Serena Sharma put it, the commitment to prevention within the R2P context has so far been rather rhetorical.28 As it will be argued further on, the current R2P architecture will not be enough to lead to effective prevention.

Understanding the legal character of R2P seems to be crucial as this is what, at least to a certain extent, determines its effectiveness. The ICISS report characterized R2P as a guiding principle for the international community of states,29 the foundations of which lay in “obligations inherent in the concept of sovereignty; the responsibility of the Security Council, under Article 24 of the UN Charter, for the maintenance of international peace and security; specific legal obligations under Human Rights and human protection declarations, covenants and treaties, international humanitarian law and national law; the developing practice of states, regional organizations and the Security Council itself.”30

The Report of the Secretary-General’s High Level Panel on Threats, Challenges and Change (A More Secure World: Our Shared Responsibility, 2004) endorsed ← 223 | 224 → R2P as “an emerging norm.”31 And finally, the UN Summit Outcome Document of 2005 confirmed its significance by quoting the R2P concept in the paragraphs 138 and 139.32

Regardless of these facts, the concept has not become a legally binding norm as of yet, however it has been regarded as a universally appreciated concept, as representatives of 191 nations approved the 2005 Outcome Document.33 ← 224 | 225 →

The document limited the scope of R2P to genocide, crimes against humanity, war crimes and ethnic cleansing,34 and emphasized that each state was obliged to protect their populations from such crimes. Paragraph 138 stressed UN members’ acceptance of the responsibility to protect populations from atrocity crimes, which entailed “the prevention of such crimes, including their incitement.”

Even though the document spoke about the responsibility of the international community to take collective action to protect endangered populations “in a timely and decisive manner”, which ought to be invoked when states fail to live up to their responsibility to protect, the wording of the two paragraphs was a slight disappointment, to say the least, for the supporters of R2P. The UN members failed to solve the principal issue concerning R2P’s application, namely who should respond to the commission of atrocity crimes if the Security Council is unable to act (e.g., when blocked by one of its veto powers) and whether the international community bears a legal duty to react to states’ deliberate action or acts of omission.

What was interesting in course of the debate about the Outcome Document’s paragraphs 138 and 139, not all actors deeply devoted to the protection of and assistance to vulnerable populations and atrocity crimes victims were satisfied with the endorsement of R2P by the UN Summit. The core argument was that the document lacked any detailed directions on how the enforcement element entailed in R2P should be implemented. Some of them opposed any mention of the possibility of imposing military measures for humanitarian protection purposes. One of the principal humanitarian NGOs, Médecins sans Frontières (MSF), opted against the concept, especially its coercive element.35

The concept of Responsibility to Protect was later developed and clarified by numerous documents, debates and results of academic research. Among these there are six reports of the Secretary-General followed by informal debates in the General Assembly as well as other documents of the UN’s organs.36 ← 225 | 226 →

The very fact that the Outcome Document mentioned R2P as a concept raised hopes that it would soon become an international customary norm. Today, little of that optimism remains, especially after the concept was invoked by the UNSC in order to justify the military intervention in Libya in 2011,37 which went far beyond humanitarian objectives.38 Currently, the necessary elements of a customary international norm (opinio iuris sive necessitatis and state practice) are still lacking.39 It is uncertain whether this would improve if R2P became legally binding. As Alex Bellamy observed: “R2P’s principal role has been to contribute to the establishment of habits of protection among UN member states, through the aligning of protection goals with state interests and identities, and, through that, to influence changes in the international context surrounding the commission of genocide and mass atrocities. In this capacity, R2P helps influence the extent to which calls for action might be translated into positive action, by increasing the likelihood not only that there will be such calls, but also that they will resonate among actors who accept that they have a responsibility to protect foreign populations when they can.”40

To some extent, standards, informal codes of conduct or moral obligations in the international community may prove more effective than strict legal norms, especially when the lack of political consensus around new international norms ← 226 | 227 → renders their implementation simply impossible, or when states’ leaders prefer to tacitly abide by standards or codes of conduct rather than be bound by international legal norms.41 What requires emphasis here is that the core idea of R2P, which is the protection of populations from genocide, crimes against humanity, war crimes, and ethnic cleansing, is “founded upon international legal obligations under Human Rights and human protection declarations, covenants and treaties, international humanitarian and refugee law and national laws that set forth standards of conduct and the means to enforce these standards.”42 Therefore, the issue whether these crimes are punishable under international norms is by no means problematic. Neither is the responsibility of states for protection of individuals under their jurisdiction from these acts.43 ← 227 | 228 →

The most debatable part of the R2P concept, as indicated before, is the responsibility of the international community, not only with regard to what the international community is responsible for, but also whom it is responsible to and to whom it is accountable for not fulfilling the inherent responsibility.44 These questions will evidently be subject to further debates and analyses.

For the purpose of this chapter, the key issue is whether the non-binding standards can at all be effective, even if they do not impose legal obligations on states. Would making R2P normative enhance its implementation? As Aidan Hehir observed, “R2P’s entire utility is predicated […] on its normative power to mobilize political will.”45 This has been supported by Francis M. Deng who wrote: “perhaps there’s nothing new here… It’s almost a restatement of resolve and perhaps a rearrangement of our tools or a mobilization of the relevant tools and relevant actors, to be alert to what needs to be done and to be mobilized to do it.”46

The Preventive Toolbox Offered by R2P

The ICISS report, proposing three significant elements of prevention (early-warning system, preventive toolbox, and political will) offered interesting proposals on the composition of the preventive toolbox in which two groups of tools were mentioned – those which may be used in the so-called “root cause prevention” and those that deal with “direct prevention.”

“Root cause prevention” was closely linked to ideas that have for a long time been present within the debate on conflict prevention strategies. However, as the UN Secretary-General observed in his 2013 report on state responsibility and prevention, “conflict prevention and atrocity prevention are closely related but they are not synonymous. Focusing exclusively on conflict prevention would overlook atrocity crimes that occur outside of armed conflict or that are not necessarily related to armed conflict47. Therefore, it cannot be assumed that efforts to prevent or resolve conflict will simultaneously reduce the likelihood of mass atrocity crimes.48 As Jennifer Welsh and Serena Sharma, pointing to differences between conflict prevention strategies and crimes prevention patterns, noted: ← 228 | 229 →

the large majority of episodes of mass killing since 1945 occurred within the context of armed conflict, while a third of the cases did not;

only one out of every ten reported civilian deaths occurred in the context of armed conflict, with the majority of deaths taking place outside of official combat zones;

even if mass atrocities happen during an armed conflict, they often have no direct link to the causes of the conflict or its conduct;

preventing conflicts require limitations to the use of force while preventing mass atrocity crimes may require military means;

mass atrocity crimes are prohibited by international law while armed conflict is regulated by the ius in bello norms.49

With these arguments in mind, the root cause prevention tools offered by the ICISS report remain a valuable idea.

“Direct prevention” is composed of instruments that reflect “the shorter time available in which to make difference.” Each of the proposed tools, which ought to be understood as actions and measures that aim to “make it absolutely unnecessary to employ directly coercive measures against the state concerned”, may take various forms: “straightforward assistance, positive inducements or, in more difficult cases, the negative form of threatened punishment.”

Root cause and direct prevention tools are presented in the table below.

Table 9: Responsibility to prevent – preventive toolbox

Root cause prevention toolsDirect prevention tools
I. Addressing political needs and deficiencies, for example:1. political and diplomatic, for example:

POSITIVE INDUCEMENTS
1. Democratic institutions and capacity building; fact-finding;
2. Constitutional power sharing; friends groups
3. Power altering and redistribution arrangements; eminent persons commissions
4. Confidence building measures between different groups and communities; dialogue and mediation through good offices
5. Support for freedom of press and the rule of law; international appeals
6. Promotion of civil society; non-official dialogue
7. Other types of initiatives that fit in the human security framework. problem-solving workshops

NEGATIVE INDUCEMENTS
II. tackling economic deprivation and poverty, for example: political sanctions
1. development of assistance projects; diplomatic isolation ← 229 | 230 →
2. even distribution of resources; suspension in international organizations
3. promotion of economic growth and opportunity; travel and asset restrictions on targeted persons
4. better terms of trade for developing countries; application of “naming and shaming” technique
5. encouragement of economic and structural reform;2. economic, for example:

POSITIVE INDUCEMENTS
6. technical assistance for strengthening regulatory mechanisms. promises of new funding, investment
III. strengthening legal protection and institutions, for example: wise development and humanitarian assistance

NEGATIVE INDUCEMENTS
strengthening the rule of law; threats of economic and financial sanctions
protection of integrity and independence of the judiciary; withdrawal of investment
fair law enforcement; curtailment of aid

[these can have both bilateral and multilateral character]
protection od vulnerable groups;3. legal, for example:
support to local institutions; offers of mediation, arbitration, adjudication
Human Rights advancement. deployment of Human Rights monitors
IV. reforms of the military and other security services, for example: establishment of criminal tribunals [or at present – a threat of turning to ICC (referral by a state party, Security Council or by the decision of the Prosecutor), should national institutions be unwilling of unable to prosecute – DH]
education and training for military forces; application of universal jurisdiction over crimes prohibited by treaties such as the 1949 Geneva Conventions and 1977 Additional Protocols, 1984 Convention Against Torture, 1948 Convention on the Prevention and Suppression of the Crime of Genocide, etc.
reintegration of ex-combatants;4. military, for example:
strengthening civilian control mechanisms; consensual preventive deployment of international military forces
accountability of security services; 
adherence to arms control, disarmament and non-proliferation regimes. 

Source: ICISS, The Responsibility to Protect, p. 19. ← 230 | 231 →

The ICISS report, besides proposing the preventive toolbox, noted that there exist serious challenges in regards to effectiveness of prevention, “including: the inherent intrusive character of certain preventive strategies, the lack of funds available for preventive efforts, the dangers exacerbating domestic tensions through increased international involvement, and the difficulty of mobilizing political will before a crisis becomes apparent.”50 These impediments are addressed in the 2013 UN Secretary-General report on Responsibility to Protect: State Responsibility and Prevention. Ban Ki-moon puts emphasis on the mobilization of political will as a key factor in prevention: “First and foremost, political will and leadership are required to translate that commitment into practice. It is sometimes difficult to demonstrate the added value of prevention, particularly early preventive action, which may not have immediate, visible outcomes. While such action is most likely to save lives and is less costly and contentious than action taken at a later stage, it can be challenging to secure the political support and resources required to undertake it.”51

The report, stressing the significance of prevention, proposed concentrating on “developing the necessary national capacity to build societies resilient to atrocity crimes.”52 It is important to identify the so-called risk factors and to mobilize national institutions and the international community to work out effective preventive tools. As Ban Ki-moon has said, prevention “does not mean looking the other way in times of crisis, vainly hoping that things will get better. We have done that too often. Nor can it be just a brief pause while Chapter VII ‘enforcement measures’ are being prepared. (…) Prevention means proactive, decisive and early action to stop violence before it begins.”53

The 2013 report devotes space to early warning strategies by proposing to understand and address possible risk factors associated with the commission of atrocity crimes.54 Even though it is not always possible to draw a direct causal ← 231 | 232 → relation between the presence of particular risk factors and the occurrence of atrocity crimes, these acts rarely appear in the absence of all or most of the risk factors. This concept has been developed in the UN Framework of Analysis for Atrocity Crimes. There are fourteen risk factors presented, eight of them common to all four atrocity crimes and the remaining six characteristic of a specific crime.55 The framework defines risk factors as “conditions that increase the risk of or susceptibility to negative outcomes.”56 The list is to help “identify warning signs or indicators” informing that crimes might occur.57 As the authors of the framework point out, “if we understand the root causes and precursors of these crimes, and can identify risk factors that can lead to or enable their commission, it follows that we can also identify measures that can be taken by States and the international community to prevent these crimes.” While the framework concentrates on creating a pattern of analysis of possible threats of commission of crimes, the 2013 Secretary-General report attempted to offer policy options for atrocity prevention which are: building national resilience, promoting and protecting Human Rights, adopting targeted measures to prevent atrocity crimes.

How Can the Preventive Element of R2P be Operationalized and Implemented?

Operationalization of prevention as an element of R2P requires more than just naming the risk factors. It requires further analysis in order to understand the stages which usually lead to crimes. If one is not aware of the fact that the commission of mass atrocities does not occur unexpectedly but rather it is a long process, it is difficult to think about effective prevention. Once we identify stages of the process, it is easier to operationalize prevention as tools may be designed to fit ← 232 | 233 → them. Jennifer Welsh and Serena Sharma suggest a temporal view of systematic and temporal prevention:

Graph 1: Temporal view of systematic and targeted prevention.

Illustration

Source: Welsh & Sharma (2012), p. 6.

The three stages of escalation explain why and at which point the probability of crimes becomes so high that it may be difficult to avert it. Therefore national governments and institutions as well as the international community should attempt to apply different preventive strategies at different stages of escalation. The first stage (which requires long-term, systematic prevention strategies) presented in the figure (risk factors) creates a potential for mass atrocity crimes, but they are not inevitable. Crisis and mobilization which follow (this requires targeted preventive measures) is a stage in which “general risk is transformed into likelihood”, however “atrocity crimes will not be committed unless there is explicit organization and mobilization”, the signs of which may include hate propaganda or organizing and training militia groups58. Imminent emergency is the last stage of escalation (this requires targeted preventive measures) in which there are clear indicators of the imminent threat of the commission of crimes. Prevention at the final stage is difficult, if not – at least in some cases – impossible. Welsh and Sharma also propose that: first, any preventive action should be centred around the victims (reducing vulnerability); second, it ought to address the behaviour ← 233 | 234 → of perpetrator and; third, it should create a less permissive environment for the commission of crimes.59

Based on the three stages of crimes prevention division, the following targeted preventive tools that respond to crises and signs of mobilization and to imminent emergency (targeted preventive tools) are offered (in order to change the behaviour of perpetrators, third parties should implement the tools starting from the bottom of the table and moving to the top):

Table 10: Targeted preventive tools.

Illustration

Source: Welsh & Sharma (2012), p. 9. ← 234 | 235 →

Conclusion

To conclude, the proposed concepts of operationalization of R2P preventive pillar is a step forward in the right direction, however we need to keep in mind that crimes in the past have happened even though preventive measures were at the disposal of states and intergovernmental institutions. Today, there are even more tools on the table; international awareness of preventions has been on the rise. It is quite clear how to analyse facts in order to prevent crimes commission. The most serious challenges for the international community seems to be the lack of political will to act where action is needed. Incentives and action must appear first in national states, regardless of what their political, economic or military power is. In the past decades, prevention “has been rhetorically prioritized but in practice largely ignored.”60 As noted by Thomas Weiss: “…logically speaking if you can’t even get people mobilized to do something in the midst of a crisis, the idea that somehow even before you have a crisis they’re all going to align and put money into it seems to me to be against the nature of human beings and certainly against the nature of the international system61”.

Responsibility to Protect can be regarded as an input to the process of building a culture of atrocity crimes prevention. However, this chapter argues that its present significance is due to the discussions that its contents and attempts of implementation have provoked, rather than its endorsement.

The preventive architecture and the early warning mechanism that has been set up within the UN and other international institutions are plausible. However, their significance is being tested in reality and still tends to prove the existence of incompatibility of rhetoric and practice. If R2P is to shape future behaviour of states and the wider international community, support for its implementation would need to come from the Security Council. Expecting that the unchanged Council composition (with the veto power of the permanent members (P5)62) and mandate could be reconciled with the rallying cry of R2P is a fool’s errand. Without a substantial institutional reform of the UN, hope that the R2P’s first pillar can be an inventive original instrument of prevention of mass atrocity crimes is futile. ← 235 | 236 →

The whole concept must work as a preventive measure in itself. And this must mean that it should be given teeth, which has not happened as yet. From what one can observe so far, vital states’ interests will shape the character of the Responsibility to Protect in the future. It needs to be stressed, that any action or operationalization that leads to leaving aside the discussion of the use of coercive mechanisms in situations when it is indispensible to protect civilian population from mass atrocity crimes will mean that the international community is actually avoiding engagement and is pushing away the responsibility for the protection of human rights abuses. The current discussion in the UN and other international for a clearly have this characteristic of avoiding debated on coercive action in order to mobilize consent around non-coercive protection measure. As David Chandler rightly observes, “it appears that the more that R2P is disassociated from the […] focus on justifying military intervention, the more confusing the pronouncements of its leading advocates become”.63 He continues by pointing that “[t]oday, the relationship between the R2P and the right of humanitarian intervention appears to be much less clear”64 which obviously leads to situations when the reactions of the international community, and -predominantly – Western states – are blocked by lack of political consensus over the possibility to use force. Therefore it seems that if the R2P is to work as a fully fledged preventive measure, discussions about the criteria for the use of coercive force must once again be opened. Jennifer Welsh’s comment can be quoted here: “There is clearly a need to […] develop noncoercive tools that third parties can wisely employ to address the deep causes of mass atrocity crimes. But there is also an urgent need to elaborate the more targeted and coercive tools that the international community can employ as part of pillar three (the international responsibility to react to R[2]P crimes – whether those tools are being employed preventively (to avoid an imminent catastrophe) or as part of a response to ongoing large – scale atrocities”.65


1 Since the inception of the term as defined in the report Responsibility to Protect (ICISS, 2001), the literature explaining R2P’s nature and contents has become abundant. The scope of the present analysis is not to repeat what has already been published but rather to concentrate on the analysis of its preventive elements (or as it is called – the first pillar of R2P) both in terms of theory and practice.

2 Annan, K. (2000). We the Peoples. The Role of the United Nations in the 21st Century. New York: United Nations, p. 48, online at: http://www.unmillenniumproject.org/documents/wethepeople.pdf.

3 International Independent Commission on Kosovo (2000), The Kosovo Report. Conflict. International Response. Lessons learned. Oxford: Oxford University Press, p. 10, online at: http://reliefweb.int/sites/reliefweb.int/files/resources/6D26FF88119644CFC1256989005CD392-thekosovoreport.pdf.

4 International Commission on Intervention and State Sovereignty (2012). The Responsibility to Protect. Ottawa: IDRC, online at: www.iciss.ca/pdf/Commission-Report.pdf.

5 IRIN (2015). CAR data – a crisis in numbers. Online at: http://www.irinnews.org/report/100994/car-data-a-crisis-in-numbers.

6 IRIN (2015).

7 UNOCHA (2015). Online at: http://syria.unocha.org. For evidence about mass atrocities see also: The Independent International Commission of Inquiry on the Syrian Arab Republic, online at: http://www.ohchr.org/EN/HRBodies/HRC/IICISyria/Pages/IndependentInternationalCommission.aspx.

8 Islamic State is also known under the name of the Islamic State of Iraq and Syria/ash-Sham (ISIS) or Islamic State of Iraq and the Levant (ISIL).

9 Human Rights Watch (2014). ‘ISIL’s Reign of Terror: Confronting the Growing Humanitarian Crisis in Iraq and Syria’, Testimony of Sarah Margon. Senate Foreign Relations Committee, December 9, 2014, online at: http://www.hrw.org/news/2014/12/09/isil-s-reign-terror-confronting-growing-humanitarian-crisis-iraq-and-syria-testimony.

10 Human Rights Watch (2014).

11 United Nations Assistant Secretary-General for Human Rights, Mr. Ivan Šimonović speaking of ISIL crimes against the Yazidis population: http://www.ohchr.org/EN/NewYork/Stories/Pages/IvanSimonovicvisittoIraq.aspx#sthash.1LUwd5zO.dpufhttp://www.ohchr.org/EN/NewYork/Stories/Pages/IvanSimonovicvisittoIraq.aspx; President Barack Obama announcing his decision to authorize airstrikes against the ISIL troops: http://www.whitehouse.gov/the-press-office/2014/08/07/statement-president and speaking of ISIL that is responsible for the killing of Jim Foley: http://www.whitehouse.gov/the-press-office/2014/08/20/statement-president; Secretary of State John Kerry on “warning signs of genocide” against the Yazidis: http://news.sky.com/story/1315089/isis-violence-all-warning-signs-of-genocide or Kurdish leaders speaking in similar words about the persecutions against the Yazidis: http://www.smh.com.au/national/kurdish-leader-calls-for-action-to-prevent-imminent-genocide-20141007-10rje3.html. For more on crimes committed by ISIL see also: Report on the Protection of Civilians in the Non International Armed Conflict in Iraq: 5 June – 5 July 2014, OHCHR, UNAMI Human Rights Office, online at: http://www.ohchr.org/Documents/Countries/IQ/UNAMI_OHCHR_POC%20Report_FINAL_18July2014A.pdf; Report of the Office of the United Nations High Commissioner for Human Rights on the Human Rights situation in Iraq in the light of abuses committed by the so-called Islamic State in Iraq and the Levant and associated groups, Human Rights Council, March 13, 2015, A/HCR/28/18, online at: http://www.ohchr.org/EN/HRBodies/HRC/SpecialSessions/Session22/Pages/22ndtSpecialSession.aspx.

12 Kamiński, Ireneusz C. (2014). ‘International Law Aspects of the situation in Ukraine.’ In: Bachmann, K., Lyubashenko, I. (2014) (eds). The Maidan Uprising, Separatism and Foreign Intervention. Ukraine’s complex transition. Frankfurt/M.: Peter Lang Int., pp. 379–404 and Bachmann, K. (2014). ‘The Challenges: Political and Economic Transition.’ In: Bachmann & Lyubashenko (2014), pp. 405–442.

13 Radio Svoboda (2015). Україна звернеться до «Гаазького трибуналу» щодо злочинів проти людяності на Донбасі, January 15, 2015, online at: http://www.radiosvoboda.org/content/article/26812424.html; see also: ‘Voice of America 2015). ‘Ukraine wants ICC to probe crimes in Crimea, East.’ The Voice of America, online at: http://www.voanews.com/content/reu-ukraine-icc-crimea-russia/2723651.html. Ukraine’s foreign minister Pavlo Klimkin noted: “We are quite optimistic about more, definitely more, engagement [on the part] of the ICC” and an ICC referral would cover “everything under the [ICC] mandate, including crimes against humanity”. Klimkin, speaking of the attack on the strategic port of Mariupol in eastern Ukraine, which killed 30 in January, said that “[t]he shelling killed, in seconds, more than 30 people and heavily wounded 100 people. (…) If you deliberately shell and, I stress, deliberately shell cities, killing civilians, it’s a completely different situation (compared to military operations) and we have to engage the ICC”.

14 Deng, F. M., Kimaro, S., Lyons, T., Rothchild, D. and Zartman, I. W. (1996). Sovereignty as Responsibility. Conflict Management in Africa. Washington, D.C.: The Brookings Institution.

15 Deng, Kimaro, Lyons, Rotchild and Zartman (1996), xv.

16 Deng, Kimaro, Lyons, Rotchild and Zartman (1996), xii.

17 Deng, Kimaro, Lyons, Rotchild and Zartman (1996), xiii.

18 Deng, Kimaro, Lyons, Rotchild and Zartman (1996), xiii.

19 The idea of responsibility of a sovereign for the population was discussed in Thomas Hobbes’, John Locke’s and Jean-Jacques Rousseau’s works. See: Martin, S. (2011). ‘Sovereignty and the Responsibility to Protect’. Griffith Law Review, 20, no. 1, and Glanville L. (2011). ‘On the Meaning of “Responsibility”. In: ‘The Responsibility to Protect’. Griffith Law Review 20, no. 2, pp. 447–69.

20 Report of the Commission on Global Governance (1995). Our Global Neighbourhood. Oxford: Oxford University Press.

21 Report of the Secretary-General (1992). An Agenda for Peace. Preventive diplomacy, peace-making and peace-keeping, A/47/277 – S/24111.

22 ICISS, The Responsibility to Protect, xi.

23 The authors of the report purposely use the term intervention for human protection purposes instead of humanitarian intervention.

24 ICISS, The Responsibility to Protect, 8.

25 ICISS, The Responsibility to Protect, 7.

26 More about the issue of prevention and the inherent paradox of prevention can be found in Agnieszka Bieńczyk-Missala’s chapter in this book.

27 The role state preferences and interests (also the preference structure of domestic politics) and the importance of UN members ability and readiness to participate in interventions is dealt with in Angieszka Bieńczyk-Missala’s chapter in this book, too.

28 Welsh, J. M., Sharma, S. K. (2012). ‘Operationalizing the Responsibility to Prevent.’ Oxford Institute for Ethics, Law and Armed Conflict Policy Brief.

29 ICISS, The Responsibility to Protect, xi.

30 ICISS, The Responsibility to Protect, p. xi.

31 Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change (2004), A More Secure World: Our Shared Responsibility. New York: United Nations, para. 202–203.

32 The two paragraphs read: “138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability. 139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.” See: 2005 World Summit Outcome Document, UN Doc. A/RES/60/1, online at: http://www.un.org/womenwatch/ods/A-RES-60-1-E.pdf.

33 For more on understanding the concept of R2P and its legal character, see for example: Anne Orford, A. (2011). International Authority and the Responsibility to Protect. Cambridge: Cambridge University Press; and Stahn, C. (2007). ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ The American Journal of International Law 101/1, pp. 99–120.

34 For the analysis of the atrocity crimes definition see: Framework of Analysis for Atrocity Crimes. A tool for prevention. United Nations 2014, online at: http://www.un.org/en/preventgenocide/adviser/pdf/framework%20of%20analysis%20for%20atrocity%20crimes_en.pdf.

35 For more on MSF position, see: Weissman, F. (2010). ‘“Not In Our Name”: Why Médecins Sans Frontières Does Not Support the “Responsibility to Protect’. Criminal Justice Ethics, vol. 29, no. 2.

36 A comprehensive set of core documents on R2P can be found on the web page of the International Coalition for the Responsibility to Protect (http://www.responsibilitytoprotect.org)

37 Resolution 1973 (2011) adopted by the Security Council at its 6498th meeting, on March 17, 2011, S/RES/1973 (2011), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1973(2011). The resolution reiterated “the responsibility of the Libyan authorities to protect the Libyan population and reaffirming that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians…”

38 About the impact of the intervention in Libya on the discussion about R2P see for example: Bellamy, A. J. (2014). ‘From Tripoli to Damascus? Lesson learning and the implementation of the Responsibility to Protect’. International Politics, 51, no. 1.

39 For more on the theoretical debate on how the legal character of R2P can be evaluated see: Serrano, M. and Weiss, T. G. (2014) (eds). The international Politics of Human Rights. Rallying to the R2P cause? London, New York: Routledge, pp. 14–17 (e-book); and Shawki, N. (2011). ‘Responsibility to Protect: The Evolution of an International Norm’. Global Responsibility to Protect, 3, no. 2.

40 Bellamy, A. J. (2013). ‘The Responsibility to Protect: Added value or hot air?’ Cooperation and Conflict 48/3, p. 352. A similar opinion was expressed by Edward Luck, who said: “The responsibility to protect is, in many ways, a political project. It will make a difference to the extent that it reflects-and is perceived to reflect- popular sentiments and values, across societies, borders, and regions.” Luck, E. (2001). ‘The Responsibility to Protect: The First Decade’. Global Responsibility to Protect no. 3, p. 7.

41 On of the best examples that may be given here is the process of evolution of standards and norms on internally displaced persons (IDPs) protection. Guiding Principles on Internal Displacement were put together by a team led by Francis M. Deng in 1998. Today, the notion of IDPs is known to systems of national law of many states (to mention just a few: Angola, Burundi, Colombia, Serbia, Bosnia and Herzegovina, Iraq, or Sierra Leone) as well as to an African Union Convention for the Protection and Assistance of IDPs (2009) and to the Protocol on the Protection and Assistance to Internally Displaced Persons of the International Conference on the Great Lakes Region, which forms part of the Pact on Security, Stability and Development in the Great Lakes Region signed in 2006. The scope here is not to analyse the effectiveness of legal instruments for IDPs protection, but IDPs regulations example is rather used to show how non-binding standards may be transformed to legal regulations. As Erin Mooney observed, “[w]hile R2P and the Guiding Principles [on IDPs] are not binding on states, in a strict legal sense, they are based on existing law that is binding. That they both articulate pre-existing norms in no way diminishes their normative value. To the contrary, it is one of their strengths; the experience in promoting the Guiding Principles attests that this can be tremendously useful towards securing states’ acceptance and, ultimately, application of these standards”. Mooney, E. D. (2010). ‘Something Old, Something New, Something Borrowed … Something Blue? The Protection Potential of a Marriage of Concepts between R2P and IDP Protection’. Global Responsibility to protect 2, no. 1–2, p. 69.

42 A toolkit on the Responsibility to Protect, ICR2P,http://responsibilitytoprotect.org/ICR2P%20Toolkit%20on%20the%20Responsibility%20to%20Protect%20high%20res.pdf.

43 That attitude of UN members is evident from how they spoke about R2P during the informal debates in the UN General Assembly, available both on UN websites and on the web page of the International Coalition for the Responsibility to Protect (http://www.responsibilitytoprotect.org).

44 This draws on Luke Glanville’s argumentation presented in: Glanville (2011), passim.

45 Hehir (2011), 1339.

46 Aiden Hehir’s interview with Francis Deng, New York, August 20, 2009; quoted in Behir (2011), 1339.

47 Report of the Secretary-General (2013). Responsibility to Protect: State Responsibility and Prevention, UN Doc. A/67/929–S/2013/399, paragraphs 12–13.

48 Welsh & Sharma (2012).

49 Welsh & Sharma (2012).

50 Welsh & Sharma (2012).

51 Responsibility to Protect: State Responsibility and Prevention, para. 66.

52 Overview of the United Nations Secretary-General Ban Ki-moon’s Report on the Responsibility to Protect: State Responsibility and Prevention, online at: http://responsibilitytoprotect.org/ICR2P%20Summary%20of%20UNSG%20Report%202013.pdf.

53 Ki-moon, B. (2012). Address to the Stanley Foundation Conference on Responsibility to Protect, New York, January 18, 2012, online at: http://www.un.org/apps/news/infocus/sgspeeches/statments_full.asp?statID=1433#.VP9xOMayhSU.

54 This has been elaborated in UN (2014). Framework of Analysis for Atrocity Crimes. A tool for prevention. United Nations 2014, online at: http://www.un.org/en/preventgenocide/adviser/pdf/framework%20of%20analysis%20for%20atrocity%20crimes_en.pdf.

55 The listed risk factors, together with indicators are:1. risk factors common to all four mass atrocity crimes, situations of armed conflict or other forms of instability; record of serious violations of international Human Rights and humanitarian law; weakness of state structures; motives or incentives; capacity to commit atrocity crimes; absence of mitigating factors; enabling circumstances or preparatory action; triggering factors and2. specific risk factors: intergroup tensions or patterns of discrimination against protected groups; signs of an intent to destroy in whole or in part a protected group (genocide); signs of a widespread or systematic attack against any civilian population; signs of a plan or policy to attack any civilian population (crimes against humanity); serious threats to those protected under international humanitarian law; serious threats to humanitarian or peacekeeping operations (war crimes). See: UN (2014).

56 UN (2014), 5.

57 UN (2014), 5.

58 Welsh & Sharma (2012), 6.

59 Welsh & Sharma (2012), 7.

60 Hehir (2011), 1336.

61 Talk between Thomas Weiss and Aiden Hehir, quoted in Hehir (2011).

62 One of the concepts proposed is to make the P5 pledge that they will not use their veto power with resolutions dealing with mass atrocity crimes prevention and halting. For more on that see: Blätter, A.; Williams, P. D. (2011). ‘The Responsibility Not To Veto’ and the polemical response by Levine, D. H. (2011). ‘Some Concerns About ‘The Responsibility Not to Veto’, both in Global Responsibility to Protect, no. 3.

63 Chandler, D. (2009). ‘Unravelling the Paradox of ‘The Responsibility to Protect’. Irish Studies in International Affairs, vol. 20, no. 1, p. 32.

64 Chandler (2009), 28.

65 Welsh, J. (2011). ‘Civilian Protection in Libya: Putting Coercion and Controvercy Back into RtoP. Ethics & International Affairs. 25, no. 3, pp. 260–261.