Responsibility to Protect: State Responsibility and Prevention
The fifth report of the UN Secretary-General on the responsibility to protect has been released (17 pages). As the title suggests (‘Responsibility to Protect: State Responsibility and Prevention’) this report deals with a crucial element of RtoP, namely prevention. The report is based on a broad consultation process conducted in spring 2013 by the UNSG Special Adviser on the Responsibility to Protect (receiving written submissions from 27 Member States, one regional organization and 27 civil society organizations); consultations conducted by the Secretariat with more than 120 States; a consultative meeting organized by Slovenia where 31 European States took part; and, on desk research (paras. 9-10).
Focusing on the responsibility of States to protect their populations by preventing genocide, war crimes, ethnic cleansing and crimes against humanity, as well as their incitement, this report assesses the causes and dynamics of such crimes and violations and reviews the array of structural and operational measures that States can take to prevent atrocity crimes. It provides examples of initiatives that Member States are already taking and identifies additional steps that could be taken to prevent atrocity crimes (para. 8). The report is composed of six sections, starting with the ‘Introduction and mandate’, continuing with a section on ‘Methodology’, ‘Risk factors’, ‘Policy options for atrocity prevention’ and ending with the ‘Conclusion’.
Paragraph 6 of the report confirms the legal nature of RtoP obligations when stating:
The responsibility to protect is consistent with existing obligations under international human rights, humanitarian and refugee law, which are binding on all States. The obligation of States to actively prevent genocide is established in article 1 of the Genocide Convention. Common article 1 of the Geneva Conventions sets out the obligation of State parties to ensure respect for international humanitarian law in all circumstances.
Together with similar statements made in the 2009 report (paras. 2 and 3) and the 2012 report (paras. 9 and 59) that should give something to reflect on to those who still contend that RtoP is simply a political concept.
Footnote 2 (not quite sure why this is not in the main text) makes the important point that all acts constituting the crimes and violations related to the responsibility to protect are prohibited under international customary law, which is binding on all States regardless of their treaty obligations.
In its third section on ‘Risk factors’, the report makes the point that first, countries at risk of genocide and, to an extent, other atrocity crimes, often have a history of discrimination or other human rights violations against members of a particular group or population, often on the basis of its ethnic, racial or religious background. This risk factor is particularly significant where the legacies of past atrocity crimes have not been adequately addressed through individual criminal accountability, reparation, truth-seeking and reconciliation as well as comprehensive reform measures in the security and judicial sectors (para. 17). Second, the underlying motivation for targeting a community, whether it be political, economic, military or religious, is an additional risk factor for atrocity crimes (para. 21). Third, the risk of atrocity crimes is often connected to the presence of armed groups or militia and their capacity to commit atrocity crimes (para. 22). Fourth, the risk of atrocity crimes may depend on particular circumstances that facilitate the perpetration of these crimes, for example, any development that suggests a trajectory towards mass violence or the existence of a longer-term plan or policy to commit atrocity crimes (para. 23). Fifth, the risk of genocide and other atrocity crimes can be increased by a Government’s lack of capacity to prevent these crimes and the absence of structures or institutions designed to protect the population. Sixth, risk factors for atrocity crimes include the commission of acts that could be elements of genocide, war crimes and crimes against humanity as set out in, for example, articles 6, 7 and 8 of the Rome Statute of the International Criminal Court.
Section four of the report on ‘Policy options for atrocity prevention’ starts by noting that the range of risk factors demonstrates that atrocity crimes are processes and not single events that unfold overnight. (para. 30). In a number of subsections, the report highlights structural and operational measures that can contribute to reducing the risk of atrocity crimes and outlines some current examples of policy options implemented by Member States.
Under the subsection ‘Building national resilience’ the report mentions constitutional protections (paras. 35-36), democratic electoral processes (paras. 37-39), criminalization of genocide, war crimes and crimes against humanity and investigation and prosecution of perpetrators and national accountability mechanisms (paras. 40-41), transitional justice processes (paras. 42-43), security reform processes (para. 44), different political, economic and social measures (paras. 45-46), and the development or strengthening of national institutions (para. 47).
In the subsection on ‘Promoting and protecting human rights’ the report notes the importance of national infrastructure for the promotion and protection of human rights, including national human rights institutions (paras. 49-52), the civil society (para. 53) and the media (para. 54) and combating hate speech (para. 55).
In the subsection on ‘Adopting targeted measures to prevent atrocity crimes’ (paras. 56-64) the report notes certain specific measures that States can take to mainstream an atrocity prevention lens within national administrations. These include the designation of an atrocity prevention or responsibility to protect focal point or interagency mechanism, currently present in 28 States; early warning mechanisms with a specific atrocity prevention focus; education promoting tolerance and an understanding of the value of diversity; and commemoration acts and memorials to past atrocity crimes.
The next subsection (on ‘Challenges’) acknowledges there are still challenges for Member States to fulfil the commitment made at the 2005 World Summit (paras. 65-68). First and foremost, political will and leadership are required to translate that commitment into practice. Second, since atrocity crimes stem from a range of risk factors, it can be hard to discern what needs to be addressed and at what stage. Third, the responsibility to protect entails both a national and international responsibility.
The subsection on ‘Building partnerships for prevention’ (paras. 69-70) notes that partnerships, including with the United Nations, other Member States, regional or subregional organizations and civil society, can help States to strengthen national atrocity prevention efforts and overcome the challenges.
In the fifth section on ‘The way forward’ (para. 71) the report Member States committed to fulfilling their responsibility to protect populations by preventing atrocity crimes and meeting their obligations under international law could consider the following steps:
(a) Appoint a senior-level focal point with atrocity prevention responsibilities and adequate resources or establish other national mechanisms to implement this mandate;
(b) Conduct a national assessment of risk and resilience. The review should be system-wide and should include the identification of vulnerable populations and an assessment of existing structures for resilience. Civil society should be included in the review process;
(c) Sign, ratify and implement relevant international legal instruments;
(d) Engage with and support other Member States and regional or subregional arrangements to share experiences and enhance cooperation to promote the effective use of resources;
(e) Participate in peer review processes, including the universal periodic review of the Human Rights Council, as well as regional peer review processes and other options for monitoring the effectiveness of measures taken;
(f) Identify and form partnerships with other Member States, regional and subregional arrangements or civil society for technical assistance and capacity building purposes, exchange of lessons learned and mobilization of resources;
(g) Participate in international, regional and national discussions on the further advancement of the responsibility to protect and its implementation.
In the sixth and last section (paras. 72-77) the report provides some final conclusions and draws attention to a number of failures to prevent atrocity crimes, including the failure to address the situation in Syria. Among others, the report notes that the prevention of atrocity crimes requires continuous efforts by States. It also suggests that the focus of next year’s dialogue be on Pillar 2 of RtoP, namely on the responsibility of Member States and the international community to help States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assist those that are under stress before crises and conflicts break out.
In a recent post on this report Professor Boon has pointed out what the 2013 RtoP report on prevention does not say:
· it does not mention Libya, which continues to be the real hot button precedent on R2P
· it does not mention military intervention, or the role of the Security Council
· it does not mention extraterritorial obligations of states
· it does not mention the ICC
· it does not mention new technology
Actually the report mentions the ICC, though it does not draw attention to its potentially preventive function. The omission of the Libyan situation is curious, since that is the first case where military intervention was authorized by the Security Council so as to protect the civilian population from mass atrocities. That said, the case of Libya had more to do with stopping an ongoing risk of mass atrocities and therefore it falls under Pillar 3 of RtoP, on timely and decisive response. The extraterritorial obligations of States might be dealt with in next year’s report, which in all likelihood will deal with obligations under Pillar 2 of RtoP. New technologies are important for prevention and it is unfortunate that the report does not mention them, since there are a few initiatives (see here).
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