Whose Responsibility To Protect?

R2P Framework Relevant to Failed States

In answering whether the Responsibility to Protect (R2P) is inherently state-centric and how it relates to weak or failed states, it is important to explain the background and composition of the practice. Even though the very definition of R2P relies on the state’s own responsibility to protect its populations from the four crimes and violations of genocide, war crimes, crimes against humanity and ethnic cleansing, the emerging norm includes comprehensive measures that explicitly relate to weak and/or noncompliant states. The general foundation for these measures is laid down in paragraphs 138 and 139 of the 2005 World Summit Outcome Document¹ which describe how the international community has agreed to help states protect their populations and if necessary, due to a manifested failure of a state, take collective action to prevent and halt the aforementioned crimes and violations. A more detailed approach concerning appropriate measures is found in the three-pillar approach suggested in the United Nations Secretary Generals’ 2009 report “Implementing the Responsibility to Protect,” which is an elaboration of the commitment made by the world leaders in 2005.

R2P is a new international security and human rights norm that has emerged to address the international community’s failure to prevent and stop genocides, war crimes, ethnic cleansing, and crimes against humanity. The term originated in the International Commission on Intervention and State Sovereignty (ICISS) report² that was drafted in 2001 as a response to then Secretary-General Kofi Annan’s pleas to the international community to not let absolute sovereignty impede efforts to protect people from the gravest violations of human rights. The dilemma, as Annan saw it, was that the collective human conscience could not allow for another Cambodia or Srebrenica, but that military interventions had also been unsuccessful in the past, as exemplified by the failures and controversy of Rwanda and Kosovo. An alternative and more refined approach was needed. The Canadian government took up the challenge and established the International Commission on Intervention and State Sovereignty. Following the reports by the High-Level Panel on Threats, Challenges and Change and Kofi Annan’s UN reform report (“In Larger Freedom” which recommended that governments adopt the Responsibility to Protect), governments unanimously embraced the principle of R2P³ in paragraph 138 and 139 of the World Summit Outcome Document. This was an immense achievement, at one of the largest gatherings of world leaders in history.

In January 2009, Secretary General Ban Ki-moon expanded on the commitment made in paragraph 138-139 in his own report entitled “Implementing the Responsibility to Protect.”⁴ He articulated a three-pillar strategy that emphasized the protection responsibilities of the state, international assistance and capacity building, and timely and decisive response.

The First Pillar outlines how the responsibility to protect ones populations is part of a sovereign state’s mandate, and that this obligation already is entrenched in treaty-based and customary international law. The state carries the primary responsibility to protect, and the role of the international community is envisioned as supplementary.

The Second Pillar focuses on capacity building of states and more specifically, on what the international community can do to assist states in meeting their responsibilities. Important aspects of the Second Pillar include mechanisms of dialogue between all actors to the conflict, standing or standby rapid-response civilian and police capacity to address emergency situations; preventative deployment of UN and regional forces in cooperation with regional organizations; and expanding development assistance on security reform and the rule of law.

Pillar Three has been seen as the most controversial aspect of the Pillars, but is absolutely necessary for the credibility and balance of the concept. In his report, Ban-Ki-moon reiterates that the Third pillar includes both coercive and non-coercive measures. Possible actions include but are not limited to: diplomatic engagement and pressure with all actors in the conflict, authorizing fact-finding missions to assess the situation on the ground; referrals of individual (state or non-state) to the International Criminal Court, targeted diplomatic sanctions; the restriction of the flow of arms and military coercion.

For the purposes of this response, we are using the term “weak” state or “failed” state to convey the lack of function or existence of a state, respectively. A failed state is generally defined as a state that does not meet basic responsibilities as a sovereign state and/or lacks the monopoly of the legitimate use of force within its territory. Historically, basic responsibilities of the sovereign state have included establishing rule of law, institutions to enforce and interpret these laws, providing a minimum of state services, and maintaining control over its territory. Current indices of weak and failed states, such as the Fund for Peace’s Failed State Index or Brookings’ Index of State Weakness in the Developing World, include a range of indicators relating to the social, political, economic and security sectors.

The three-pillared approach provides a useful framework to deal with the commission of atrocity crimes committed by states or non-state actors in failed states. While the primary intention of Pillar One is to further encourage states to fulfill their existing responsibilities by abiding to long-standing obligations under international law, Pillar Two is better suited to dealing with cases of weak or failed states. As the Secretary General points out in his report, “when national political leadership is weak, divided or uncertain about how to proceed, lacks the capacity to protect its population effectively, or faces an armed opposition that is threatening or committing crimes and violations relating to responsibility to protect, measures under pillar two could play a critical role…”

Among the many initiatives, R2P’s capacity-building measures under Pillar 2 call for:

• Cooperation with public diplomacy efforts of the UN (including UNICEF, OHCHR, UNDP, UNHCR), regional, sub-regional mechanisms which aim to build capacity of states to fulfill their responsibilities.
• Creating a standing or standby rapid-response civilian and police capacity to address emergency situations, which are particularly useful in situations where the state is unable to exercise control (there are existing proposals from civil society and governments).
• Engagement in preventive deployment through collective military assistance (or consent-based peacekeeping) to help the state address non-state actors’ crimes relating to the R2P to ensure a degree of stability and security on the ground, and in extreme cases to restore the state’s sovereignty.
• Encouraging donors to support national programs to advance capacities for prevention and protection from R2P crimes.
• Assistance to the strengthening of the State’s security sectors to provide stability for all populations.
• Engaging donor countries in increasing rule of law assistance to states.

• Non-coercive options such as diplomatic pressure with actors involved in the conflict
• Appointing fact-finding missions by the General Assembly, Security Council or the Human Rights Council to report on violations of international law (as well as special rapporteur or advisors)
• Refer individuals (state or non-state) to the International Criminal Court which deals with individual responsibilities for mass atrocity crimes to put an end to impunity and deter further crimes
• Promote targeted diplomatic sanctions (i.e. travel, financial transfers, luxury goods and arms)
• Measures to restrict the flow of arms such as arms embargoes 
• Civil society can also influence individual, public and private investors to withdraw foreign direct investment involved in providing finds to state or non-state actors committing atrocities
• The possibility of military action in extreme cases against state or non-state actors by the UN and/or regional bodies 

Responses

Marie Mainil

While explaining the second pillar of R2P, you note the importance of the rule of law. Efforts at implementing the rule of law in weak and fragile states have proven very difficult. The World Justice Project is working on a Rule of Law Index that should prove helpful. You work with civil society actors on a regular basis, what are their views on how to implement rule of law in their societies?

Marion Arnaud

On civil society efforts on implementing the rule of law Indeed, Pillar 2 spells out that upholding principles of good governance, such as the rule of law, a competent and independent judiciary, and human rights helps reach objectives relating to R2P. Pillar 2 also makes clear that if international standards on human rights and humanitarian law are embodied in national legislation, the four specified crimes and violations and their incitement would be criminalized under domestic law and practice. In this regard, many of our members and partners have programs that advocate the promotion and protection of fundamental human rights through the observance of the rule of law, not only at the national level but also for regional and international mechanisms. At the national and regional level, for instance, an important program of one of our founding members based in Tanzania, the East Africa Law Society (http://www.ealawsociety.org/), targets the organs and institutions of the African Union and the East Africa Community. This group aims to promote peace, justice, conflict resolution, democracy and good governance, and the just rule of law as a strong basis for stability. Concretely, their many impressive achievements include the following: • Promoting a culture of free, fair and credible elections and monitor elections in the region. • Developing and disseminating knowledge on electoral dispute resolution mechanisms and best electoral practices. • Promoting understanding and appropriate use of the international legal system by members of the legal profession in East Africa and improving engagement and networking between lawyers and international Courts and Tribunals. • Conducting advocacy for greater access to justice and providing legal aid services to poor and marginalized people. • Engaging in public interest advocacy, and targeting comprehensive changes in laws and policies affecting children and youth.   In regards to mechanisms at the international level, the International Criminal Court (ICC) is a crucial tool within the wide range of R2P measures that is mandated to investigate and to try perpetrators of war crimes, crimes against humanity and genocide. The ICC is a tool under R2P with a dual purpose: a reaction measure in response to the occurrence of mass atrocities and a deterrence measure to prevent crimes from reoccurring. Moreover, the ICC and R2P both share the principle of complementarity which reinforces the responsibilities of the sovereign state. It reaffirms the primary responsibility of the states for investigating and protecting populations from mass atrocity crimes. The Secretariat of the Coalition for the ICC (CICC) (http://www.iccnow.org/), like the International Coalition for RtoP, is hosted by WFM-Institute for Global Policy (http://www.wfm-igp.org/), and both work closely towards halting and preventing the reoccurrence of mass atrocities, reconciling societies after conflict and fighting against impunity. The CICC was founded in 1995 with the goal of establishing the International Criminal Court. Now composed of 2,500 civil society organizational members, the CICC works in concert with governments and international and regional institutions to increase cooperation with the Court, ensure that it is fair, effective, and independent, and promote national laws to ensure the punishment of mass atrocity crimes. Some of their activities include: • Increasing awareness of the Court at the international, regional and national level. • Disseminating information on the works of the Court. • Conducting advocacy for increased ratification and implementation of the Rome Statute, and • Ensuring NGO access and participation in the ICC process.

Jonas Claes

In response to the roundtable question, Marion Arnaud correctly states, “The emerging norm includes comprehensive measures that explicitly relate to weak and/or noncompliant states.” R2P lists various measures the international community can use to assist those weak states unable to meet their Pillar 1 responsibilities. In this sense, the state-centric focus of R2P drives, rather than impedes, proposals for R2P implementation. As is the case in Arnaud’s essay, the roundtable question triggers responses merely focusing on potential action from the international community within those countries unable to protect their citizens, while R2P crimes may well be more likely, and when occurring, more worrisome in those countries unwilling to act as responsible sovereigns.

It's a Matter of Operationalization

The essential spirit of the norm of responsibility to protect (R2P), is the protection of populations from mass atrocity crimes either by the state, and, if it fails, the international community. The doctrine, as stated in paragraphs 138 and 139 of the World Summit Outcome Document, stipulates that states have a primary responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, and that if the state is unable or unwilling to protect its population, or as stated in paragraph 139, manifestly failing to protect its populations from these crimes it is the responsibility of the international community to do so.

The idea of “unable” implies the absence of a functioning state. Thus, in territories where no state exists—and where there is a risk that mass atrocities might occur—the responsibility to protect populations from mass atrocities still falls to the international community.

The idea of responsibility to protect was conceived in order to resolve the deadlock between those who insisted on a “right to humanitarian Intervention” and those who viewed such a right as an indefensible infringement upon state sovereignty. In the aftermath of Rwanda and Srebrenica, the United Nations was not only ill prepared to act, but action was paralyzed by the disagreements over limits of sovereignty. The debate which arose out of the Security Council’s failure to authorize military action to stop the ethnic cleansing in Kosovo, and the subsequent aerial bombardment by NATO, divided the international community between those who questioned the legality of the right to intervene and those who argued that legality mattered less than the imperative to save lives.

R2P re-characterized the argument by shifting the focus from “right” of the states to “responsibility” of states towards those at risk of mass atrocity. The 2001 International Commission on Intervention and State Sovereignty (ICISS) report which formulated R2P argued that the relevant perspective was not that of the prospective intervener but of those needing protection. The essence of the norm, which seeks to confront the tragedy of Rwanda and the dilemma posed by Kosovo, is that responsibility originates with each state itself and then broadens to the international community of states. Sovereignty is itself built on a state’s obligation to protect its own people from mass atrocities, failure to do so, does not absolve the state of its own responsibility to protect its people, rather, it provokes a concurrent responsibility of all states, acting as necessary through the UN and in accordance with the UN Charter.

R2P is a state centric norm—a commitment of states acting individually and collectively—which rests on a fundamental reformulation of sovereignty as a form of obligation of the state towards its population, and places the state at the service of the individual. The rubric of unable and unwilling also implies a commitment of states acting collectively in the absence of a functioning state. Thus, if a state is weak and unable to exercise control over its territory, then the responsibility to assist the state to protect its population falls on the international community under Chapter VI and VIII, and if that fails, to take decisive and timely action to protect populations at risk under Chapter VII of the United Nations Charter.

The question is not so much whether R2P has a place in situations where no state exists—from the perspective of populations or individuals, nearly all either claim citizenship to a state or are part of communities that claim group rights from a state—but rather how R2P can be operationalized in fragile or contested states or where non-state actors are effectively in control. 

Non state actors are often perpetrators of mass atrocity crimes and, in many instances, have de facto power over the state. They are subject to international humanitarian law, under which a party to a conflict has obligations to civilian populations regardless of its legal or political status. These obligations include prohibitions of murder, cruel treatment, torture, humiliating and degrading treatment; attacks that do not discriminate between military and civilian targets, and attacks that may be expected to cause incidental death or injury to civilians excessive in relation to the concrete and direct military advantage anticipated. R2P, however, is framed around the responsibility of states, and does not speak to the responsibility of non-state actors—after all, only states that were party to the 2005 agreement.

The R2P “tool box” which contains judicial, economic, legislative and military measures, is harder to apply in situations where the state is weak or controlled by non state actors. The key reason for this is that states are susceptible to international pressure in ways that non state actors are not. For example, economic sanctions, domestic political pressures and legal accountability measures have little effect on actors who do not rely upon conventional economic and political goods. The inability to use judicial legislative or economic measures leaves only coercive military means as a tool to stop mass atrocities from occurring.  And as the Secretary General aptly puts in his January 2009 report on Implementing the Responsibility to Protect, nowhere is the gap of capacity, imagination and will within the international community more pronounced than in realm of forceful and timely response to the most flagrant R2P crimes: Darfur, DRC and Somalia, being a case in point. In each of these cases, non-state actors, fragile states and unwilling leaders preclude the use of non-military solutions; however, the political will to use military action to halt crimes on the ground has been markedly absent. Thus, the problem of the fragile, weak or non-existent state is not applicable of R2P, but rather, its operationalization and the need for a wide range of measures that take into account the different political realities of conflicts.

R2P is a political commitment on the part of the international community to adopt measures necessary to protect populations at risk of widespread or systematic attacks. This commitment is the central feature of R2P, not the concept of state or the particular facts of who the perpetrators are. Nevertheless, the norm is still in its early stages of development. The challenge ahead is to develop capacity and an overall strategy both at national and international levels to ensure that the pledge made by world leaders in 2005 to stop mass atrocity crimes is turned into reality. This will mean strengthening state capacity; developing a robust R2P tool box with an emphasis on prevention and ability to deal with non state actors and weak or fragile states; considering principles, rules and doctrine to guide the use of coercive force relating to R2P—when all fails; adopting accountability measures; strengthening UN and regional organizations in their early warning capacities and mainstreaming R2P in the other areas like peace building, human rights, humanitarian affairs and development.

In the July 2009 General Assembly (GA) debate on R2P, the GA continued its consideration of responsibility to protect, for the first time since 2005. There was near unanimity, as reflected in the statement made by 94 member states, that the task ahead is to implement R2P to save lives at risk of mass atrocities. The debate was a big step towards building political will for timely and decisive action— the greatest challenge which confronts the commitment of R2P.

Responses

Marie Mainil

You state that “the political will to use military action to halt crimes on the ground has been markedly absent.” Do you think that this problem is coupled with a lack of capacity? What do you make of the work of Victoria Holt on military strategies and operational concepts? (See Victoria Holt's work here)

Savita Pawnday

Political will and the capacity to effectively stop mass atrocities from occurring are both essential for the implementation of the responsibility to protect. As the experiences of regional organizations and the international community as a whole reveal, developing capacity at national, regional and international levels—both military and civil—is as important as the political will to sanction and provide mandates that are attuned to protection of civilians. For example, African Union (AU) operations in Burundi and Sudan demonstrate the political will of African states to intervene to maintain peace and security and implement their commitment to the norm of “non-indifference,” adopted in Article (4h) of the AU Constitutive Act— a precursor to the responsibility to protect. However, the performance of both these missions underscores the limits placed by lack of capacity. As detailed in the working paper by Kristiana Powell,1 the African Mission in Burundi (AMIB), though able to achieve some success in stabilizing the country for a future UN deployment, lacked resources to fulfill its mandate. The operations suffered from a lack of resources, training and expertise required to provide any meaningful protection to vulnerable populations. The African Mission to Sudan (AMIS) was similarly ineffective in monitoring the ceasefire and protecting civilians because of logistical constraints and a weak mandate, further exasperated by low troop strength. The report by Victoria Holt and Joshua G. Smith2 on military strategies and operational concepts discusses the challenges confronted by military leaders in fulfilling mandates that require protection of civilians from mass atrocities and identifies factors that limit or enable their ability to protect civilians. The report draws an important distinction between peacekeeping missions and operations launched expressly to halt mass atrocities. Contrary to a peacekeeping mission, where peacekeepers are expected to use minimal force even under a Chapter VII mandate, a mission explicitly deployed under the responsibility to protect to stop mass atrocities will “fall somewhere on the spectrum between peacekeeping and traditional military operations” as it will use a variety of tools and strategies, including coercive force, to halt the killings. Holt and Smith argue that these operations thus “pose distinct conceptual, operational and political challenges” and the mandates crafted to confront these challenges should be such that they can be effectively operationalized. Drawing from the experience of missions in former Yugoslavia, Rwanda, Sierra Leone, Kosovo, East Timor and Congo, it presents us with the insight that addressing the “doctrinal deficit,” both in terms of political will and capacity—including civilian protection in peace keeping doctrine, improving guidance and training on protection, and backing mandates with means—is essential to addressing the unique threats posed by a situation where mass atrocities are occurring.     1. Kristiana Powell. “The African Union’s Emerging Peace and Security Regime: Opportunities and Challenges for Delivering on the Responsibility to Protect,” Working Paper. The North South Institute (May 2005). 2. Victoria Holt and Joshua Smith. “Halting Widespread or Systematic Attacks on Civilians: Military Strategies & Operational Concepts,” A Workshop Report. The Henry L. Stimson Center (Spring 2008). 

The Drivers of R2P Rejectionism

According to Gareth Evans, President Emeritus of International Crisis Group, the three broad challenges currently hindering “Responsibility to Protect” (R2P) principles are conceptual, institutional, and political.¹

Whether constructive or disparaging, most writings on R2P either focus on conceptual and legal questions, or discuss the need for and specifics of the nascent norm’s institutionalization and operationalization. Common proposals to resolve R2P’s political challenges include improving coordination among the “Friends of R2P,” or mobilizing indifferent countries that have so far refrained from vocal activism within United Nations forums. Although key to advance the R2P-agenda, few scholars have assessed the drivers of R2P opposition, displaying a defeatist attitude towards obstructionist countries. Among R2P skeptics, concerns about the erosion of national sovereignty and the potential for Western abuses are common. Yet, in general, those fragile states most likely to end up on the receiving end of R2P-inspired military operations seem very supportive of R2P. By analyzing official country statements in R2P-related debates within various UN forums, I aim to instigate a debate about the factors driving the skepticism and explicit opposition towards this effort to protect populations from mass atrocities. Such a debate could result in a strategy aimed at expanding the pro-R2P constituency at the General Assembly (GA) to include not only the indifferent GA middle section, but also core opposition members.

R2P has encountered serious obstacles on its road towards operationalization. An important impediment is the fear of rejectionist countries that, by legitimizing non-consensual military operations, even if only in narrowly defined circumstances, R2P could further erode a weak country’s internal sovereignty and improve the power establishment’s capacity to interfere in others’ domestic affairs. In his concept note preceding the July 2009 GA-debate on R2P, current GA-President Miguel D’Escoto from Nicaragua stated: “The legacy of colonialism gave developing countries strong reasons to fear that laudable motives can end up being misused […] to justify arbitrary and selective intervention against the weakest states.”² During an informal discussion prior to the 2005 High-Plenary meeting at the GA, Cuba’s delegate had similarly warned: “R2P will only facilitate interference, pressure, and intervention in the domestic affairs of our states.”³ Another illustrative statement came from India’s Ambassador to the UN, who stated in 2005 that R2P should not be used “as a cover for conferring any legitimacy on the so-called right of intervention.”⁴

Given the increased risk of conflict in fragile states, and given the fact that genocide and other R2P-crimes almost always occur in the context of violent conflict, one would expect that concerns about the potential sovereignty-eroding effects of R2P would, in the first place, be expressed by those states often labeled as weak, failing, fragile, or failed.⁵ Not only are R2P-related crimes most likely to occur within weak states, but the international community also faces less opposition when “reacting in a timely or decisive manner” to intervene where weak authorities are not capable of providing protection for its citizens, such as in Guinea Bissau or Haiti. There would be a far higher level of opposition to international intervention in areas such as Tibet, Chechnya, and other high-alert areas within institutionally strong states.⁶ Positions within the R2P debate could thus be expected to correspond with the geographic divide between the global North and the global South, or the categorical divide between strong and weak states. Yet, of the top twenty countries on the 2008 State Fragility Index, developed by Monty Marshall and Jack Goldstone of the Center for Global Policy, only Sudan explicitly opposes R2P. Eight of these twenty most fragile states consistently embrace R2P as an important instrument to prevent mass atrocities.⁷ Apart from traditional advocates, like Rwanda, this group of fragile supporters somewhat surprisingly includes Myanmar, whose representative made a positive statement during the July 2009 GA debate: “While prevention is at the heart of the concept of R2P, states may invoke R2P rationale for intervention of international community when prevention fails.”⁸ Most spoilers are relatively well institutionalized and at low-risk of being confronted with an R2P-related intervention (see Box 1). State fragility does not seem to be a significant indicator of R2P rejectionism.

R2P tools, whether diplomatic, economic, legal—or if the aforementioned proved ineffective—military, are targeted at states that prove unable or unwilling to protect their citizens from mass atrocity crimes.⁹ However, it is the states that are unwilling to fulfill their part of the social contract that are most likely to reject R2P. Those unable to do so generally express support, or at least tentative indifference towards R2P. The countries listed in Box 1 vary in the extent to which they oppose, or consistently criticize R2P. For example, whereas Cuba, Egypt, and Venezuela actively and consistently oppose it, China and Russia have refrained from openly rejecting R2P while displaying their deep distrust of the concept. The moderately negative declaratory position of Russia and China, countries with otherwise weak human rights records, can partly be explained by their ability to block any resolution within the Security Council as a permanent member.¹⁰ The question is, what does this obstructionist camp have in common apart from the apparent fear of this “Trojan horse for Western attempts to legitimize a right of humanitarian interventionism.”¹¹ A country’s position towards R2P is likely to be driven by a complex mix of factors: its historical experiences with mass atrocities (whether as a victim or perpetrator); its genuine attitude towards human rights issues; its awareness of its shared interest in the prevention of mass atrocities from a strategic, moral and financial point of view; a country’s perceived opportunity to benefit from what UN Secretary-General Ban Ki-Moon referred to as R2P’s second Pillar, that is, international assistance and capacity-building; its sensitivity about any loss of sovereignty as interpreted in its traditional sense, etcetera.

Yet, apart from these surface-level drivers, opposition may also be determined by a country’s political nature and position within the international system. The listed countries often display a mix of democratic and autocratic features, ambiguity regarding their willingness to engage with the global community, and an urge to act as balancers within the international system in terms of norms, ideology, or power. Some of these vocal opponents may try to seize on the R2P debate as an opportunity to strengthen their profile as spokesperson for their region, the Non-Aligned Movement, the G-77, the developing world as a whole, or an alternative movement against the current global power establishment.¹² Given some of these countries’ disproportionate impact on the R2P discourse, advocates should thoroughly analyze the drivers of R2P rejectionism so they can be manipulated where malleable.

Within the first phase of any broad effort to expand the global pro-R2P constituency, some of the major advocating countries could channel their diplomatic energies and privately engage these opponents of R2P, exploring their needs, and trying to secure supportive commitments or positive attitudes through package deals involving related or unrelated areas. Successes in softening the rhetoric of a former dissenter exist, as in the case of Vietnam, a country that despite its initial intransigence recently welcomed some of R2P’s key tenets.¹³ Secondly, external support for local civil society within obstructionist states, wherever they exist and seem receptive, could increase the bottom-up pressure on national elites. Thirdly, moving R2P onto the agenda of regional bodies and other multilateral forums that include “opponents of R2P” can further increase the pressure.¹⁴ Finally, in case cooperative initiatives do not bear any fruit, core advocates can experiment with coercive diplomatic approaches (for example through naming and shaming) aimed at dividing and isolating the opponents, while increasing the costs of their continued opposition.

Gareth Evans made clear that increased awareness about the nature of those countries adamantly opposing R2P could convince those countries sitting on the fence to do the opposite, not only on a moral basis, but also based on practical national interest grounds: “States that can’t or won’t stop internal atrocity crimes are the kind of rogue, or failed states or failing states, that can’t or won’t stop terrorism, weapons proliferation, the spread of health pandemics … and other global risks.”¹⁵

Responses

Marie Mainil

You offer compelling evidence that, generally speaking, fragile states encourage R2P, at least on paper, and this should not be taken lightly. You suggest diplomatic approaches to engage R2P opponents, often “strong states,” in civilian protection. Your concluding quote (by Gareth Evans) is also very compelling: “States that can’t or won’t stop internal atrocity crimes are the kind of rogue, or failed states or failing states, that can’t or won’t stop terrorism, weapons proliferation, the spread of health pandemics…and more global risks.” Here is another, related, thought: The problems emanating from fragile states—including the mass atrocities and mass human rights abuses that the R2P framework focuses on—seem to share a core characteristic with other (diffuse) security threats to the globalized system, such as climate change, energy and water security, pandemics, illicit trafficking, slavery, you name it. An argument can be made that the shared core characteristic across these threats is a lack of a “gravitational center” for concerted strategic action, or, to put it bluntly, a centralized foreign enemy who very clearly threatens the territory, sovereignty, and values of one or more other sovereign state governments and societies. The world is facing a collective action problem of enormous proportions. Truly mitigating, preventing, treating, and ending what are inherently distant, diffuse, and long-term threats means that rich and relatively peaceful countries start thinking of such threats as truly “strategic” and “immediate” in nature. Reaction? I like to think that both will and way are important. In other words, when there is a will, there is a way, and when there is a way, there is a will. These days you are based in Washington DC, and your work focuses on mass atrocities prevention. According to you, what’s the key tool to present policy makers with in order to empower them, to have them fully engaged with conflict prevention? 

Jonas Claes

Within the post-Cold War era of optimism about the potential of international action to rid the world of conflict, academics, influential policymakers and practitioners increasingly focused on the development of tools and mechanisms to prevent genocide, mass atrocities, or conflict in general. Although far from constituting a consensus as stated or implied in some of the other essays, the widespread rhetorical support for R2P and conflict prevention could lead to the assumption that ”where there is a will, there is a way.” Yet, both the absence of effective warning response mechanisms and the often lacking political will to move words into deeds, will render R2P crimes a sad reality in the foreseeable future. Before briefly commenting on the other essays, I will focus on the first of these key challenges.1 Passivity of the international community following the outbreak of large-scale violence within countries ”at the periphery of the international system” is rarely the result of absent or poor-quality intelligence about the pre-conflict situation on the ground. Too often credible early warnings end up at a bottom shelve on Capitol Hill or Brussels, places where genocide prevention is often cited as a fundamental goal. A key driver of inaction is the disconnect between the intelligence community and policymakers resulting from the lack of an effective warning response mechanism. As the 2008 Genocide Prevention Task Force, co-chaired by former U.S. Secretary of State Madeleine Albright and former U.S. Secretary of Defense William Cohen, recommended in its “Blueprint for U.S. Policymakers,” in order to get from the so-called political consensus to effective mass atrocity prevention, the national security advisor should make warnings of genocide or mass atrocity an “automatic trigger” of policy review, forcing policymakers to, at least, consider the situation if several risk factors are present.2     1. For those interested in the role of political will as a missing link to achieve effective conflict prevention I refer to Lawrence Woocher’s “Deconstructing 'Political Will:' Explaining the Failure to Prevent Deadly Conflict and Mass Atrocities,” Journal for International and Public Affairs 12 (2001). 2. Madeleine K. Albright and William S. Cohen. “Preventing Genocide: A Blueprint for U.S. Policymakers,” Task Force Report (Washington DC: USIP Press, December 2008): 31.       

No State is No Excuse

The responsibility to protect concerns the enduring, perennial obligations of states to protect populations from mass atrocities. The international community can and must encourage, assist and, in extreme cases, compel states to provide this protection. The R2P principle is notable insofar as it is premised on the idea that the “responsibility” of the agent (i.e. the state) is not contingent upon the capacity of the agent to perform its responsibilities (in contrast to most moral and political philosophy discussions of “responsibility”). As such, in instances where the state (or at least the governmental authority) has ceased to function, nothing fundamentally changes in relation to R2P. The state still bears a responsibility which it will likely struggle to perform, and the international community still bears its own responsibilities to assist and, as a last resort, coerce the state to uphold its protection obligations. The manifest failure to prevent mass atrocities against any population only signifies that the international community bears a special responsibility to take appropriate mitigating action and, in the aftermath, to follow through with post-conflict assistance to enable the state to build the capacity to uphold its primary responsibility.

Where states do not exist, or rather where populations are seemingly not within the ambit of a given state’s responsibility, R2P holds that the international community nevertheless bears a responsibility to protect. But it is worth pointing out that every inhabited place on the planet comes under the jurisdiction of a state, which seems to render this point moot. Even in the very rare case that the jurisdiction of state authority is questioned, it is the international community’s appropriate course of action that differs, not the nature of the duties born. In this sense, there is not anything contradictory here. Even if the state is unable to carry out its responsibilities because it has ceased to function, the R2P still stands. Nothing must be remedied in the R2P principle in this respect.

It is likewise misleading to overstate the state-centricity of R2P. While the endorsement of R2P at the 2005 World Summit was agreed upon by states and applies to states, the principle is embedded on international humanitarian law, which imposes legal obligations on non-state actors as well. According to the body of law that undergirds R2P, non-state actors are legally obliged to refrain from committing war crimes and crimes against humanity. The international community bears a responsibility to take appropriate mitigating action if state authorities are incapable or unwilling to sanction those responsible for such crimes in their territory. Furthermore, the World Summit R2P agreement affirms that coercive action to uphold the international community’s responsibility should be authorized by the United Nations Security Council, whose broad discretionary powers grant it the authority to respond to security threats as it deems fit, including grave breaches of International Humanitarian Law (IHL) by non-state entities.

In terms of the “practice” of R2P, there are three cases where its purported “statism” appears to cause problems:

1) Non-state belligerency: In the case of Sri Lanka, does R2P apply to the Liberation Tigers of Tamil Eelam (LTTE)? Here, the answer is yes, inasmuch as LTTE has a legal duty to not commit grave breaches of IHL. If they fail in this duty they forfeit their right to be considered a lawful belligerent. It is fair to say that LTTE did fail this test, quite spectacularly. This is not to suggest that the government of Sri Lanka does not bear the responsibility to take all precautionary measures to ensure that civilians do not fall in its crossfire; it too bears the responsibility to uphold IHL with due adherence to civilian immunity.

2) Contested sovereignty: How does R2P apply to Gaza? R2P applies to several entities all of whom contest sovereignty over Gaza. Because R2P is a condition of sovereignty, it stands to reason that aspiring sovereigns should exercise their responsibilities. In this case (a) Israel: until Gaza is fully sovereign, Israel must uphold the primary responsibility of the state to protect there, and it likewise has legal responsibilities to abide by IHL as an occupying power; (b) Palestinian Authority: as the principal aspiring sovereign, the PA has a responsibility to protect, and its sovereignty is conditioned on it fulfilling it; and (c) Hamas: as an aspiring legitimate belligerent, Hamas has the same responsibilities as the LTTE to uphold IHL. When considering Gaza, it should not be taken as a vacuum where no one bears responsibility to the population in accordance with R2P, rather everyone does.

3) “Absent” sovereignty: Somalia seems to be the clearest example where the state does not “function.” But despite its anarchy, there has always been a formal state of Somalia. If Somali state authorities are “manifestly failing” to protect (due to incapacity), the responsibility passes to the United Nations Security Council. In this case, the UNSC is working with the relevant regional organization—the African Union—to take, albeit scarcely effective, action.

As these examples hope to illustrate, R2P’s “statism” might look like a problem at first glance, but in fact this is not much of a problem at all. Locating responsibility is relatively straightforward. Less straightforward is (1) determining what manifest failure means, and (2) determining a course of action when a state is deemed to be manifestly failing. Again, if there are contradictions here, they seem to be in interpretations and expectations of what R2P means and entails for states and non-state actors, but nothing fundamental to the principle itself.

As a final note, it is also important to remember R2P is not a “tool” as such, but a principle. In this regard, R2P is neither “used” nor “invoked” as a humanitarian’s draw-card to rectify a course of action in a given situation, but a platform for encouraging or compelling states to faithfully uphold their sovereign responsibilities to all populations within their territorial domain. There are therefore no situations in which R2P is relevant because there is never a point at which it is irrelevant. R2P requires states to continually strive to build the requisite capacities, framework and institutions to protect and assist others to do the same. In cases where preventive measures fail and mass atrocity crimes are occurring or imminently forewarned, the R2P principle requires timely and decisive action. But this is no more “making use” of R2P than region-to-region learning, bilateral assistance and domestic reform geared at preventing the grave and deliberate abuse of vulnerable populations. R2P, in sum, represents a renewed and invigorated consensus to further entrench genocide and mass atrocity prevention in the institutions and practices of states, non-state actors, civil society organizations, regional bodies and the United Nations system.

October 7, 2009

Responses

Marie Mainil

Sarah, I’d like to focus a bit on your paragraph on “Absent sovereignty.” You give the example of Somalia and I cite: “…despite its anarchy, there has always been a formal state of Somalia. If Somali state authorities are ‘manifestly failing’ to protect (due to incapacity), the responsibility passes to the United Nations Security Council. In this case, the UNSC is working with the relevant regional organization—the Africana Union—to take, albeit scarcely effective, action.” Some states today do not represent actual polities that are recognizable, bounded entities, culturally or otherwise. To put it bluntly, is the maintenance of the Democratic Republic of the Congo, for example, as a singular subject of international law, however decentralized, a means that is fundamentally at odds with the strategic effect sought by nation-building? 

Sarah Teitt

I believe you’re asking if the state “itself”—as an institution and form of political organization—is the problem in some instances of mass, recurrent violence. The question implies that there may be cases in which there is a fundamental disconnect between a state as it is presently conceived and the political community for which it bears the responsibility to protect. If the “state” is the “culprit,” then efforts to mitigate future mass atrocities through attempting to strengthen the state’s capacity to protect will offer only peripheral solutions to the core factors leading to widespread and systematic attacks against certain populations. In the example of the Democratic Republic of the Congo (DRC), this question suggests that no matter how adeptly the international community and state leaders engage in reform toward more responsive and resilient institutions and programs to halt ongoing attacks and prevent future mass atrocities, the “nature” of the (DRC) state determines that it will continue to fail to protect its population from egregious harm. Thus, state-driven capacity-building will not adequately address the glaring gaps between juridical sovereignty and empirical—nevermind popular—sovereignty (i.e. representing an entrenched cycle of sovereign form without the substance and an inability to uphold the primary responsibility to protect). The problems I see here in relation to the responsibility to protect in concept and practice are twofold: 1) it seems to equate R2P capacity building/prevention with broader/top-down state-building projects, and 2) it takes for granted a very insular conception of the state/sovereignty that R2P seeks to remedy. On the first point, it should be noted that R2P is a derivation of sovereignty as responsibility, in which the state is foremost accountable to its citizenry (and also to external constituencies). With this in mind, upholding the R2P post-atrocities is absolutely not an exercise in (re)building politically and culturally irrelevant institutions. Admittedly, there’s much to be done in designing and implementing strategies to reconcile de jure and de facto sovereignty, but the challenges of past failure do not signify that cultural and ethnic diversity, for example, inevitably render the “state” irrelevant. Rather, they suggest that future mass atrocities can only be prevented if political institutions respond and are relevant to the security needs, justice mechanisms and governance priorities of the local population. The challenge is to craft assistance in a way that enables and encourages these outcomes.  On the second point, R2P takes as its basis mutual responsibilities that transcend state borders and demarcated communities. Again using the example of DRC, the conflict in the Kivus isn’t only an issue of governance in DRC, but implicates and prescribes a course of action for neighbor states, the region and the international community as a whole. Given the nature of the conflict in eastern Congo, special responsibilities are not limited to Kinshasa, but clearly apply to—most notably—Kigali, regional arrangements and the UN Security Council.  Sovereignty and responsibility so conceived do not further entrench an unresponsive and unaccountable state apparatus, but recognize the regional and global dimensions of conflict and can reasonably account for political communities that are not bounded entities, culturally or otherwise.

Marie Mainil

 “R2P, in sum, represents a renewed and invigorated consensus to further entrench genocide and mass atrocity prevention in the institutions and practices of states, non-state actors, civil society organizations, regional bodies and the United Nations system.” What’s your vision to get from this renewed and invigorated consensus to genocide and mass atrocity prevention?

Sarah Teitt

As other panellists have mentioned, R2P enjoys strong support. The General Assembly endorsed R2P in paragraphs 138-140 of the 2005 World Summit Outcome Document, the Security Council reaffirmed the principle in Resolution 1674 (2006) on the protection of civilians, and the Secretary General has appointed a Special Advisor on matters related to the R2P.  The challenge is to breathe life into the principle, and there are a flurry of institutes and individuals working to this end. The Secretary General, a tireless champion of R2P, earlier this year issued a report outlining strategies to implement the principle, which represents a solid starting point for creating and/or strengthening the institutions and capacities to prevent genocide and mass atrocities. The International Coalition for the Responsibility to Protect is engaging NGOs from every region to deepen the normative consensus on R2P and to actively work toward its implementation. The Global Centre for the Responsibility to Protect and its associate centers are conducting research, policy work and outreach aimed at furthering acceptance of R2P. The Asia-Pacific Centre for the Responsibility to Protect (AP-R2P) has launched and now edits a journal, Global Responsibility to Protect, that seeks to publish the best and latest research on the R2P principle, its development as a new norm in global politics, its operationalization through the work of governments, international and regional organizations and NGOs, and finally, its relationship and applicability to past and present cases of genocide and mass atrocities including the global response to those cases. Most recently, in the July 2009 General Assembly debate on R2P, the overwhelming majority of states affirmed their support for the principle and many offered recommendations for its implementation. The Australian government recently earmarked $2 million for a Responsibility to Protect Fund to support projects geared at advancing the concept and helping states to build the capacity to protect populations. The approach of APR2P is to inject R2P into regional mechanisms, to engage individual governments on strengthening capacities to uphold their R2P and to establish national programs on the responsibility to protect in the region. Our flagship program in the Philippines has already born encouraging results. These are all positive, important trends in an ongoing, global effort to prevent mass atrocities. R2P is not the immediate solution to pervasive bottlenecks in genocide and mass atrocity prevention, but it is the basis for substantive and, importantly, sustainable reform. 

Jonas Claes

I share Sarah Teitt’s concern about the assertion included in the roundtable question, which overemphasizes the state-centricity of R2P. At no point in history since the Treaty of Westphalia has the general interpretation of state sovereignty focused more on the citizens as equal partners within the social contract as today. Partially thanks to the “R2P-movement,” sovereignty has moved away from its unbalanced traditional interpretation, providing state elites with a “carte blanche” for action and policy, or the absence thereof, within its borders.