Implementing the Responsibility to Protect: new
directions for international peace and security?
Conor Foley
Igarapé and CEBRI
Brasilia 22 November 2012
Is R2P a new normative standard?
• How can a concept that is labeled as a new
re-characterization of sovereignty turn into
an emerging norm within the course of four
years, and into an organizing principle for
peace and security in the UN system one
year later?
• What new rights and obligations does R2P
create and on whom?
• Does the UN Outcomes document amount
to saying anything more than that the
Security Council should continue
authorizing, on an ad hoc basis, the type of
interventions that it has already been
authorizing for many years?
UN Summit Outcomes Document 2005
•
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.
What does the Responsibility
to Protect mean?
1. All States have the primary responsibility to protect their own
populations
2. States which are ‘manifestly’ failing to protect their own populations
have a weak sovereignty defence
3. Other states, acting through the UN, are legally permitted to take
non-forcible measures to protect citizens of another state in another
territory
4. The UN Security Council, acting under its Chapter VII powers, is
legally permitted to take forcible measures to protect citizens of
another state in another territory
5. There is a legal obligation to protect civilians from mass atrocities
and if the UN Security Council fails to fulfill its responsibility then this
passes to other entities
Humanitarian interventions
Safe havens in Northern Iraq 1991
UN Dept. For Humanitarian Affairs 1991 – became OCHA 1998
Agenda for Peace 1992 Inter-Agency Standing Committee
Operation Restore Hope – Somalia 1992-1993
-October 1993: Black Hawk Down, Haiti, Rwanda 1993- 1994
Bosnia-Herzegovina 1992 – 1995
International Criminal Court 1998
Kosovo 1999
Sierra Leone 1999 – Protection of Civilians
East Timor 2000
Brahimi Report 2000
11th September 2001 - Afghanistan
Iraq 2003
Darfur 2003/4
Responsibility to Protect 2005
Humanitarian Reform 2007 - Clusters and CERF
Capstone Doctrine 2008
Sri Lanka 2009
Libya 2011
Humanitarian advocacy
‘We have to fight the Somalis themselves’
Philip Johnston President of CARE 1991
‘One cannot stop a genocide with medicines’
Medecins Sans Frontieres 1994
‘You cannot defeat fascism with humanitarian aid. Fascism has to be hit with military force’
IRC senior official in Sarajevo 1995
‘The threat of military action by NATO over the summer has not prevented major offenses or
the systematic abuse of civilians . . . Oxfam believes action to enforce a cease-fire must be
taken’ Oxfam 1998
‘A force multiplier for us, such an important part of our combat team’
Colin Powell 2001
‘400,000 innocent men, women and children
have been killed . .. .
The time for negotiations with the
Sudanese government has ended’
Save Darfur Coalition 2006/2007
UNAMSIL 1999
“
Acting under Chapter VII of the Charter of the United
Nations, decides that in the discharge of its mandate
UNAMSIL may take the necessary action to ensure
the security and freedom of movement of its
personnel and, within its capabilities and areas of
deployment, to afford protection to civilians under
imminent threat of physical violence taking into
account the responsibilities of the Government of
Sierra Leone
Challenges
• Reformulating the concept of peacekeeping for
twenty first century
• Are principles of non-use of force, neutrality and host country consent still
always relevant?
• What is the status of peacekeepers: soldiers, police or civilians?
• How to distinguish between combatants and civilians?
• When does IHL apply to peacekeepers?
• Do we need a UN detention policy?
• What about the ICC and impunity?
• What are the direct human rights obligations of peacekeepers?
• Should derogations automatically apply?
Challenges
• Legal accountability of UN peacekeeping missions
• Can missions function without immunities?
• Should troop contributing countries have exclusive jurisdiction?
• What are the negative and positive obligations of
peacekeepers?
• - Mothers of Srebrenica, Bosnia v Serbia, Rwanda
• What is the ‘legal space’ of the human rights treaties and
what are the extraterritorial obligations of states?
• - Bankovic and effective control
• Parallel obligations of host state, contributing states and
UN
•
•
Human rights obligations and due diligence policy
DDR, SSR and reconciliation, land disputes and return
Challenges
Democratic Deficit
UN Security Council Reform
International Court of Justice
Implied or inherent powers – ICTY and ICTR
Crime of aggression
Views of global south
Thomas Hobbes – Leviathan
The office of the sovereign, (be it monarch or
assembly,) consisteth in the end, for which he
was trusted with the sovereign power, namely
the procuration of the safety of the people, to
which he is obliged by the law of nature . . . .
[B]y safety here, is not meant a bare
preservation, but also all other contentments
of life, which every man by lawful industry,
without danger or hurt to the commonwealth,
shall acquire to himself