THE GRADUATE INSTITUTE Master course by Professors Nicolas Michel and Davide Rodogno The Responsibility to Protect +++ Reflections by a member of the ICISS Statement by Cornelio Sommaruga Geneva, April28 th, 2014 1
GrüssGott! The expression Responsibility to Protect is still in the minds of everybody interested in international affairs and particularly in the observation of events in the international scene of the last ten years. Today however you will have the vision of somebody that can give a sort of inside storywith some comments as to the development of events around this term. You are certainly aware of the conclusions of the UN Summit 2005, where you find following statement (it is 138) Each individual State has the responsibility to protect its populations fromgenocide, war crimes, ethnic cleansing and crimes against humanity. Thisresponsibility entails the prevention of such crimes, including their incitement,through appropriate and necessary means. We accept that responsibility and will actin accordance with it. The international community should, as appropriate,encourage and help States to exercise this responsibility and support the UnitedNations in establishing an early warning capability. 139 goes on with further development of the principle of the Responsibility to Protect. All that was the follow up of the courageous Report of thesecretary General (Kofi Annan) to the UN GA 2005. 2
How did it come to this important development? Until terrorism overwhelmed international attention after 11 September 2001, the big issue in international relations was the right of humanitarian intervention. Man-made international disaster, and what the international community should do about it,is what preoccupied those responsible for international relations in Government, International Organizations and Academia, more than anything else in the decade after the cold war. We indeed recall the (debacle) of the international intervention in Somalia (1993), the (inadequate) response to genocide in Rwanda (1994), the non prevention of the murderous ethnic cleansing in Srebrenica (in Bosnia 1995) and then the NATO so called intervention in Kosovo (1999), that was in reality an illegal war against Serbia. There also were Northern Iraq, Liberia, Haiti, Sierra Leone, Ivory Coast and others. Some interventions, as those in Somalia, Bosnia and Rwanda were too little, too late, misconceived, poorly resourced and/or poorly executed. They generated major international controversy. UN Secretary General Kofi Annan, deeply troubled by this issues and the inconsistency of the international response, challenged the GA in 1999 and again in2000, to find a way through these dilemmas, posing the issue in such terms: 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 affect every precept of our common humanity? Annan own view was clear : at the Nobel Peace Price award in Oslo 2001he was saying The sovereignty of States 3
must no longer be used as a shield for gross violations of human rights. It was against this background, that the Government of Canada on the initiative of the then Foreign Minister Lloyd Axworthy and of Prime Minister Jean Chrétien, who was presenting the proposal to the GA, established in September 2000 the International Commission on Intervention and State Sovereignty (ICISS). We were 10 independent international personalities from North and South with very different backgroundsunder the active chairmanship of Mohamed Sahnoun of Algeria and Gareth Evans of Australia.The objectives of the Commission were to produce a guide to action on response by the international community to internal man-made, human-rights, violating catastrophe. We had in the Commission, right from the start, an important controversy as to the title to give to our study. The Canadian expectations along the name of the Commission was to have humanitarian intervention, what was rejected by some of the members of the Commission, particularly by me, because of the ambiguity of the adjective humanitarian, that could easily be used as alibi for political motivated actions. Changing the terminology away from intervention and from humanitarian intervention allowed to take distance from the danger of associating the word humanitarian with military activity. This was not only a positive development for the Red Cross, but also for other humanitarian relief organizations. More difficult was to find the new way of naming our study. During the 12 years and 7 months of my presidency of the International Committee of the Red Cross, a major 4
concern was to make the voice of humanity heard. We have constantly struggled against all odds in order to be effective and efficient in humanitarian protection and assistance in all forms of complex conflicts be they international or not. We were again and again confronted with the humanitarian challenges of the end of the XXth century, which remain of actuality in these first decades of the XXIth century. Let us briefly look at them. Challenges for humanitarian Agencieschallenges for International Organisations, challenges for States and challenges for individual humanitarian workers. Serious challenges for the ICRC, because the mission remains the one of protection assistance being in my view a fundamental element of it protection of victims and potential victims in all armed conflicts, internal and international. The complexity does not simply arise by the fact that several of today s conflicts are internal, but mainly by the fact that the internal factors (such as social, religious, tribal and ethnic tension and economic disparity) are fundamental. The results are many fratricidal wars as we were witnessing them for example in the last decades in Afghanistan, in Sudan, South-Sudan or DRC and in the Middle-East, be it in Palestine, in Syria, in Yemen, in Tunisia, Libya or Egypt often with external interference, without forgetting Mali and the Central African Republic. 5
And in the context of these conflicts, all aspects of protection are strictly linked to human rights and International Humanitarian Law. But protection implies responsibility to act. You may recall the statement of Secretary General Ban Ki-moon Words must become deeds. Promise must become practice : this was the conclusion of the call to action in one of the last Reports on the Responsibility to Protect. And this points to the provision of Art. 24 of the UN Charter, where the SC is called to take responsibility, From my experiences of the presidency of the ICRC - to come back to the choice of the title of the study - arises a first question : Why from Humanitarian Intervention to the Responsibility to Protect? In the past I rejected and I am still rejecting the term Humanitarian Intervention, as well as the right to intervene, ou encore pire le droit d ingérence humanitaire s il y a droit, il ne peut pas y avoir d ingérence et s il y a ingérence, il n y a pas de droit! Le droit d ingérence humanitaire comporte donc une contradictio in adiecto! Humanitarian Intervention has to be rejected as a term at least for three reasons : It necessarily focuses attention to the claims, rights and prerogatives of the potentially intervening states, 6
much more than on the need of the potential beneficiaries. By focusing narrowly on the act of intervention, the traditional language does not take into account the need for prior preventive effort or subsequent follow up assistance, both of which are too often neglected in practice. The familiar (traditional) language does neglect sovereignty, jumping directly to intervention. This brings me to affirm (with the ICISS) that the responsibility of a sovereign state is also and foremost to protect its people (its national citizens) from killing and other grave harm. It is the most basic and fundamental of all responsibilities that sovereignty imposes to the authorities. If a state cannot or will not protect its people from such harm, then coercive intervention for human protection purposes, including ultimatelymilitary intervention, by others in the international community, may be warranted in extreme cases. Coming back to the shift on the terms of the debate from humanitarian intervention to the responsibility to protect, there is a change of perspective, reversing the perceptions inherent in the traditional language, namely : The responsibility to protect implies an evaluation of the issues from the point of view of those seeking or needing support, rather than those who may be 7
considering intervention. Responsibility to protect refocuses the attention on the duty to protect communities from mass killing, women from systematic rape and children from starvation. The responsibility to protect underlines that the primary responsibility rests with the state concerned and that it is only as already mentioned if the state is unable or unwilling to fulfill this responsibility, or is itself the perpetrator, that it becomes the responsibility of the internationalcommunity to act in its place. In the responsibility to protect language, you detect a linking concept that bridges the divide between intervention and sovereignty; whereas the right to intervene is confrontational. Responsibility to protect also means responsibility to prevent and responsibility to rebuild, obviously in addition to the responsibility to react. Prevention and reconstruction (not simply material rebuilding, but reconstruction of the whole society and its functioning) have also been a preoccupation of the so-called Brahimi Panel, the panel on UN Peace Operations of 2000 of which I had been a member. It preceded the ICISS, but the conclusions of both reports are not very different. They underline the needed involvement of civil society in prevention of conflicts,peace making and post-conflict rebuilding (peace building). There is a real need to close the gap between rhetoric and financial and political support 8
for prevention. A major problem has been the limited commitment in real terms to development assistance. Furthermore: important to recall that the Report on UN Peace Operations states that the UN does not wage war. In a certain sense The Responsibility to Protect fills the gap of the many forms of Peace Making and Peace Keeping operations, opening the way to Peace Enforcement. Finally I need to underline the emphasis given to the Responsibility to Prevent. Conflict prevention and this is also valid for terrorism is not merely a local or national affair. The failure of prevention can have wide international consequencesand costs. Moreover for prevention to succeed, strong support from the international community is often needed and in many cases it may be indispensible. In his Report the ICISS stated there remains a gap between rhetoric and financial and political support for prevention Encouraging more serious and sustained efforts to address the root cause of the problems that put populations at risk, as well as more effective use of direct prevention measures remains crucial. In the chapter the Responsibility to React the military intervention for human protection purposes remains the last resort, after having exhausted all other means as sanctions and diplomatic pressure. The relevant decisionmaking criteria as foreseen by the Commission - can be 9
summarized under the following six headings: right authority, just cause, rightintention, last resort, proportionality and reasonable prospects. The Security Council, that will be the right authority but with the recommendation that the five permanent members of the SC should agree not to apply their veto power in matters where their vital state interests are not involved -, will have to decide without delay when requestedin case of large scale loss of life and large scale ethnic cleansing. It is worthwhile to reed in detail the definitions given in the Report.<www.iciss-ciise.gc.ca> Furthermore the Commission has clearly stated that the Responsibility to Protect can not be invoked for a change of regime or the overthrowing of a Government. You know that if the SC fails to act the way to the GA in an Emergency Special Session under the United for Peace procedure remains open. I shall not dwell more on our Report on The Responsibility to Protect, that we handed over to Kofi Annan on 18 th December 2001.We had agreed unanimously (the 12 members), although we had some difficulties in last moment by some members that had not attended most of the meetings. But indeed the time of the publication of the 10
ICISS Report was a bad one taking into account the tragedy of nine eleven, that kept the whole attention of the international community on the reaction by the USA. But the Secretary General was very satisfied with the text and congratulated us warmly; he even convened a retreat of the SC, where he invited our Co-chairs to participate. Coming now to events in New York, the new Secretary General presented at the beginning of 2009 a Report entitled Implementing the Responsibility to Protect, where he stressed the need to turn the promise into practice and advanced a three pillar strategy, that he confirmed in the subsequent Reports of 2010, 2011, 2012 and 2013: first :The basic principle of State sovereignty remains; State sovereignty implies rights as well as obligations.in his 2013 Report entitled State responsibility and prevention the SG discussed particularly national preventive measures as obligation of States. He presented number of practical options for States to use in preventing mass atrocity crimes. second: nternational assistance and capacity building are important tools of prevention. Here the SG advances that States need to establish national mechanisms for responding to the risks they face. third: Timely and decisive collective response to cases of manifest failure has to be givenin ways that are consistent with the UN Charter. 11
Important tools for prevention remain the reinforcement of goodgovernance, of rule of law and respect of human rights. When a state is manifestly failing to protect its population in four situations, namely genocide, war crimes, crimes against humanity, ethnic cleansing, the Responsibility to Protect has to be taken over by the international community. The Secretary General was underlining that sovereignty and responsibility can be mutually reinforcing principles. He called on States to resist trying to change the subject into a struggle of ideology, geography or economics. Prevention was highlighted as had been done by the ICISS as priority and when prevention fails, the UN needs an early and flexible response. I believe that the debates in the GA showed that the main challenge ahead still lies in the effective translation of the moral commitment into a political and operational reality. Let me recall that the Responsibility to Protect has become the unanimous commitment of UN member states to never again fail to act in face of genocide and other mass atrocity crimes. This was very largely confirmed by the AG debates. Let me also recall that our Report clearly states that the primary purpose of a possible intervention for human protection purposes must be to halt or to avert human suffering. 12
But regrettable for the ICISS, the many conditions and principles for a possible military intervention have not beenretained in the UN strategy to this effect. The pillars strategy may be influenced by the ICISS statements under the Responsibility to React, but the Security Council is left with large margins of manoeuvre and so also the possible communities of the wiling s. Encouraging in this respect was in the discussions of the 6 th Annual Ministerial Meeting on the Responsibility to Protect, held in New York on 27 th September 2013, under Nigerian and Netherlands chairmanship, the call to the Security Council to refrain from exercising their veto in mass atrocity situations and to fight impunity with an ICC referral when other measures have failed. I believe that the first military implementation by the Security Council of the Responsibility to Protect, was in Resolution 1973 (of 17 th March 2011) on Libya (the whole text did not literally mention the Responsibility to Protect). The Resolution was called HISTORICAL by Secretary General Ban KI moon, even if the vote was not unanimous: ten votes in favour and five abstentions among them two P5. It confirms the basic doctrine contained in the initial 2001 Report that human beings can count for more than the sacrosanct sovereignty enshrined in Charter Article 2, with its emphasis on non interference in domestic affairs. In other words state frontiers cannot longer be seen as a watertight protection for war criminals. The UN Secretary General rightly said that Resolution 1973 clearly and unequivocally affirms the international community s determination to fulfil its responsibility to protect 13
civilians from violence perpetrated upon them by their own government. Having said that, even if Resolution 1973 makes it clear that this military action is about protecting Libya s civilian population from attacks from its own Government, one has to record that the intervention has been shifted from protecting civilians in Benghazi to overthrowing the Government in Tripoli. The SC members who voted the Resolution understood that they were voting for air strikes for protecting civilians. Indeed the three leaders of the P5 voting for the Resolution, stated on 15 April that our duty and mandate under UN SC Resolution 1973 is to protect civilians, and we are doing that. It is not to remove Kaddafi by force. But it is impossible to image a future for Libya with Kaddafi in power. Buta certain number of question marks as to the whole operation have to be raised. While Resolution 1970 can be seen as preceding the military action by a range of non military measures, the question arises if, in medium and long term, necessary prevention had been implemented in respect to the regime and its leader. Where were Kaddafi weapons coming from? Seen by one of the drafters of the 2001 Report one has to ask if all precaution had been taken in the evolution of the situation. One has in this context to recall that our Report states that the scale duration and intensity of the planned military intervention should be the minimum necessary to secure the humanitarian objective in question. This is the proportionality, which seems to be 14
doubtful in the implementation of the Responsibility to Protect by NATO. Also the reasonable prospects, that is, that military action can only be justified if there is a reasonable chance of success, seems to be in the air. Furthermore it is worthwhile recalling that the ICISS Report asked for clear and unambiguous mandate, common military approach among involved partners and unity of command. Was this the case in the first weeks of the military operation? This brings me to say that there are in the Responsibility to React many risks and dangers. The military operation could indeed prove inconclusive, possibly inflaming the region still further. Also the double standards are questionable: why so week reaction to the behaviour of the Bahraini Monarchy and the support given militarily by Saudi Arabia in the repression of protests and uprising in Bahrain. And Syria and Yemen? After eleven Resolutions adopted by the Human Rights Council, the General Assembly. eventually adopted on 19 November 2013 a resolution condemning on going violence in Syria, including the use of chemical weapons. The Resolution called the SC to take measures to end all serious violations of IHL in Syria. We know what happened since on the question of chemical weapons. Interesting is the call to donor countries to allocate funds for additional UN human rights monitors at the Syrian border in order to collect evidence for prosecutions by the ICC.All that is finally inspired by the Responsibility to Protect dynamics. 15
For a participant in the ICISS, that I was,the Brazilian initiative on Responsibility while Protecting is very welcome. It brings back to the UN General Assembly and Security Council all fundamental elements contained in the 2001 Report, that had gone almost forgotten, also at the moment of the incorporation of the concept of the Responsibility to Protect in the 2005 World Summit conclusions. Resolution 1973 (of 17 March 2011 on Libya) is a good example of the lack of consistency of the Security Council and even more in the implementation by the coalition of the wiling s, that was then substituted by NATO. As in the Annex of the Brazilian letter addressed to the Secretary General on November 9 th 2011, clearly stated, PREVENTION is an essential tool of the Responsibility to Protect, exactly as the ICISS said in its Report. Diplomatic, humanitarian efforts and other possible means should be used, and more financial means should be invested in that. Further when discussing the Responsibility to React, the ICISS recognizes that if peaceful means are not adequate, coercive measures should be considered including different forms of sanctions.the military intervention for human protection purposes, is an exceptional and extraordinary measure and it will always have to be preceded by a serious examination of Precautionary Principlesas well as a serious implementation of Operational Principles. All this shows how much the ICISS Report did take care of the responsibility while protecting also because in its Operational Principles it insists on Rules of engagementwhich fit in the operational concept and that should be precise, reflect the principle of proportionality and involve total adherence to 16
international humanitarian law.it is important that the principles enunciated by the Responsibility while Protecting would be transformed in procedures to be applied by the Security Council in each case where the Responsibility to Protect is invoked. As said, the Brazilian concept of Responsibility while Protecting has the great merit to bring back the United Nations to a sound and clear way of implementing the 2005 Summit Declaration. It is time to conclude. I shall do it saying that we, the authors of the Report on the Responsibility to Protect, are proud of our work and its results. It was not easy to come to a consensus, especially because as said some members did wake up in last minute with new and contradictory ideas, but finally the diplomatic skill of our co chairs brought the brilliant positive result. We will certainly continue to disseminate the report because as our Co chairman Gareth Evans once stated mass atrocities cannot be universally ignored and sovereignty is not a licence to kill! * * * * * * * * * * * 17
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