The Responsibility to Protect, the new Human Rights Council

and Peacebuilding Commission

Obstacles and ways for enforcement.

Preventing wars, genocides and crimes against humanity?  

Vijay Mehta

 info@vmpeace.org

                                                                                                                  www.vmpeace.org

Introduction
 
Thank you Viv Williams, Andrew Young, and UNA Chichester and District for inviting me to come and give a talk today. Looking at your events diary, its amazing how much good work is being done by your branch on a ongoing basis. While discussing the R2P, we will also be discussing the interrelated issues of the New Human Rights Council and Peacebuilding Commission (PBC). Thanks for giving me such a wide remit to talk in such a short space of time.    

Last year, at the Houses of Parliament, we had a discussion on the Responsibility to Protect (R2P), hosted by Action for UN Renewal. In the question/answer session of that meeting, Viv and myself asked the speakers about the enforcement mechanism for R2P and the questions were sidelined and no satisfactory answer was forthcoming. However, today I will try not to do the same, and rather explore different ways how R2P can be enforced.

Responsibility to Protect is a concept for intervention in a state by the international community (which preferably through the UN) for the prevention of genocide, ethnic cleansing, mass killings and human rights violations taking place, in a country which is unwilling (or unable) to stop it. It is central to human security in all its dimensions. It is crucial to building post-conflict societies, supporting the rule of law, multilateral and democratic institutions. 

R2P is a intellectual breakthrough, a shift in politics, where more and more public opinion and governments are coming around the idea to the fact that something needs to be done to avoid genocide or mass killing if it is taking place in a country. The concept took 20 odd years to be formed after it was floated in the 1980s and endorsed by Kofi Annan in the 1990s, before being adopted as a concept by the UN’s World Leader’s Summit in 2005.

The summit endorsed the so-called “Responsibility to Protect”, subsequently approved by the Security Council, establishing the principle that sovereignty of a country is not sacrosanct and that the Security Council should be prepared to act when countries either commit or fail to prevent genocide or crimes against humanity on their territories. It is a moral rather than a legal obligation. We will today explore how the international community can take actions to enforce it via the route of international Criminal Court, the UN Security Council, and citizen initiatives. At the end of the Q&A session, we will try to formulate a motion on R2P enforcement which can be passed on to the UNA UK for action.

Let me briefly talk about the Human Rights Council and PBC, which are now operational bodies of the UN, before returning to the main subject of R2P.

Human Rights Council

The new Human Rights Council is a replacement of the disgraced United Nations Commission on Human Right. It is an international body within the United Nations System. Its purpose is to address human rights violations. The Council is the successor to the United Nations Commission on Human Rights, which was often criticised for the high-profile positions it gave to member states that did not guarantee the human rights of their own citizens.

It was created on 15 March 2006, and at its first working session took place on 16^th June 2006. Each member on the Council must be approved individually and directly by a majority (96 of a 191) of the members of the General Assembly, making it more authoritative and transparent. The United States is not a member of the council.   

What Makes the Human Rights Council Different Than the Commission?

• Individual and direct votes on all candidates by secret ballot

• Election by majority of General Assembly membership

• Language regarding considerations for quality of membership

• Ability for the GA to suspend membership rights and privileges

• Reflects universality of human rights by elevating it out of ECOSOC as a new subsidiary organ of the General Assembly (with possibility to elevate into a principal organ in 5 years)

• Universal review mechanism

• More meetings throughout the year and for longer total duration

• Enhanced ability to meet in special sessions to address pressing situations

• Voluntary pledges and commitments for candidates

• Commitment of members to cooperate with the Council

• Commitment of members to undergo peer review in their term of membership

• Review of Commission on Human Rights special procedures, including the Sub-Commission.

• Term limits (no more than two consecutive terms of three years)

• New commitment to capacity-building and technical assistance

• Equitable geographic distribution reflecting current GA membership

• Explicit language emphasizing cooperation, dialogue, and non-selectivity

The new UN Human Rights Council voted on 30 June 2006 to make a review of alleged human rights abuses by Israel a permanent feature of every council session.

In its Second Special Session in August 2006 the Council announced the establishment of a High-Level Commission of Inquiry charged with probing allegations that Israel systematically targeted and killed Lebanese civilians during the 2006 Israel-Lebanon conflict.

So we can see the new human rights council has more teeth and it is more stronger and transparent – a step in the right direction. However, with the US not being a member, its ability to influence decision-making is limited.
 

Peacebuilding Commission 

A Peacebuilding Commission (PBC) was agreed in principle with two core objectives: to establish a UN body to help states avoid collapse or relapse into war, and to assist states in their transition from war to peace. The PBC would be responsible for marshalling resources and coordinating post-conflict reconstruction. It would be accompanied by a special new team of experts to help the Secretary General to mediate in more conflicts and bring them to a close.[1]

The Peacebuilding Commission is a new body created in December 2005 by the UN intended to bridge the gap in the coordination of peacebuilding activities in countries just emerging from violent conflict.  The Commission (or PBC) is an intergovernmental advisory body that will be a new forum to bring peacebuilding stakeholders in a selected country together to coordinate their overall strategies, and particularly to identify gaps in the international community’s effort to support sustainable peace in transitioning countries.  The PBC will not undertake peacebuilding activities itself, but will provide advice to the Security Council and the Economic and Social Council (ECOSOC). 

In addition to providing a new opportunity for better coordinated peacebuilding approaches across the UN system, and in cooperation with the national governments, the international financial institutions (IMF and World Bank), and major donors and troop contributors, the PBC should help to sustain the international community’s attention on a country for a longer period of time and marshal greater resources at critical moments in the peacebuilding process, especially full post-conflict reconstruction plans.  

The real significance of PBC is in the fact that most conflicts reoccur within 5 years of its starting. The new Commission can help to stop it. The PBC has a major role to play to stop conflict. Joining hands with its partners it can intervene before the actual conflict has been started and developed into a full blown war.  

In time, it is hoped that the Peacebuilding Commission, along with the Peacebuilding Support Office of the UN Secretariat, will be able to extend its reach in improving peacebuilding beyond individual countries and contribute to the development of best-practices in making the transition from violent conflict to peace. 
 

Responsibility to Protect[2] 

Responsibility to Protect is a recently developed concept in international relations. It aims to provide a legal and ethical basis for "humanitarian intervention" : the intervention by external actors (preferably the international community through the UN) in a state that is unwilling or unable to fight genocide, massive killings and other massive human rights violations. Along with globalisation has come the moral pressure of states to protect the human rights of people in countries other than their own. If a particular state is unwilling or unable to carry out its responsibility to prevent such abuses, that responsibility must be transferred to the international community, which will solve problems primarily via peaceful means (such as diplomatic pressure, dialogue, even sanctions), an expression of universal morality or, as a last resort, through the use of military force.

Some criticise the responsibility to protect as a form of "Western imperialism". Other says that it places too much emphasis on violence and does not address equally devastating cases of famine and poverty. Many also question the focus on military interventions which can encourage governments to take unilateral military actions for their own agenda.

There are recent cases for intervention: Yugoslavia, Iraq, Somalia, Bosnia and Herzegovina, Rwanda, Kosovo and now Darfur, Sudan, which stand out as test cases for R2P. 

In two recent cases, in 1999 and 2003, military action in Yugoslavia and Iraq was taken by a coalition of UN member states without UN support. These decisions were controversial, and whatever the moral implications have badly damaged the UN.

Thus, before intervention is mandated by the UN, it is necessary for the Security Council to establish the need for intervention, confirm the inability of the state concerned to co-operate, and satisfy its members that intervention would be legitimate. One decision already made by the Council is the importance of intervention in cases of genocide. This puts the onus on the Council to decide that genocide is occurring. In the case of Rwanda, in which a UN peace-keeping force was already present, the Council declined to support the allegation of genocide and thus refused to send reinforcements. This was an example where intervention should have been mandatory.

Each of these cases was different. Intervention in Somalia was approved by the UN, which appointed the US as its agent. This intervention failed to restore peace. In Bosnia UN forces had an inadequate mandate or forces’; allowed to monitor the civil war by the Yugoslav government the UN commander was given barely a quarter of the forces he requested and the mission failed.

In Kosovo the determination of NATO commanders, led by US forces, took military action - although they had received no mandate from the Security Council. This resulted in the destruction of much of the Serbian infrastructure, including civilian casualties.

Before returning to the case for intervention in Darfur, I am going to outline obstacles for enforcement and what actions can be taken to implement R2P.
 

Obstacles for enforcement  

What is needed for the use of force for intervention[3] – and the High Level Panel and Secretary-General have agreed – is the adoption of five basic ‘criteria of legitimacy’ to test the validity of any case made for a coercive humanitarian intervention. These criteria are, in short, the seriousness of the harm being threatened (which would need to involve large scale loss of life or ethnic cleansing, happening here and now and not in the distant past, to prima facie justify military action); the primary purpose of the proposed military action (to halt or avert harm); whether there were reasonably available peaceful alternatives; the proportionality of the response; and the balance of consequences – whether, overall, more good than harm would be done.

There will always be argument about how these criteria should be applied in particular situations. Darfur is a tricky case in point: there is no doubt about the scale of the catastrophe and the international community’s responsibility to help resolve it, but coercive military force applied without Khartoum’s agreement – in effect, an invasion – would almost certainly be counterproductive. It is reasonable to assume, however, that if agreed criteria had to be systematically addressed every time force was proposed, there would be a much better chance of consensus being reached in these cases, and less risk of the Security Council being bypassed.

Actions for enforcement

What is now needed is for civil society to raise awareness about this historic commitment. Civil society organizations (CSOs) should seek to inform their governments, regional organizations and other inter-and non-governmental organizations about the endorsement of R2P at the 2005 world Summit. Engage government officials, national parliamentarians, regional and sub-regional organizations and parliamentarians to consider whether steps are being taken to incorporate these norms into strategies on human rights, peacebuilding, prevention of armed conflict and protection of civilians.

CSOs should also seek to engage in a strategy with other members of civil society to encourage the implementation of R2P principles at the national and regional level, and incorporate the R2P principles into their own work. The responsibility to protect principles should be invoked by civil society organizations in conflict-specific situation to hold their governments accountable for protecting populations within and beyond their own borders.

We need methods of gaining the confidence of civil society in the assessment of alternatives to war. The understanding of “intervention” should be widened to include methods of conflict prevention and resolution other than the use of military force. It is too easy for heads of state to assert that “all diplomatic avenues have been explored”. History shows that this is rarely the case. In both the Kosovo and the Iraq wars, it later emerged that the proponents of war rejected potentially hopeful back-channel diplomatic approaches.

While R2P itself can’t prevent unilateral actions, civil society and the public can use R2P as a standard against which to judge proposed actions. R2P is meant to act as a safeguard against unilateral intervention by states seeking to advance their status as global or regional powers by requiring that any response to large-scale threats to populations take the form of a collective response. R2P requires that the right authority approve any intervention. The UN, by its nature as a representative international body, is the principal institution to confer legitimacy upon any use of force. The Security Council is the principal organ to take on this responsibility, as it is charged with the maintenance of international peace and security. The Secretary General, the High-level Panel, the ICISS report[4] and other supporters of R2P proposed additional criteria to serve as a threshold for military intervention. The just cause criterion requires that interventions for human protection purposes only occur to halt or avert large-scale loss of life, or large-scale ethnic cleansing. Other proposed criteria are that any interventions take place with the right intention, as a last resort, using proportional means and carrying reasonable prospects of success.

R2P is a norm that reconciles the needs and rights of the individual with the duties of the international community and the rights of the sovereign State. It is not considered a panacea to resolve the problems that lead to genocide or massive human rights violations. But as a new international commitment, along with the commitments to the Peacebuilding Commission, the Human Rights Council, the establishment of the International Criminal Court, the adoption of Security Council resolution 1325 on women, peace and security, and an array of regional initiatives to institutionalise prevention, peacekeeping and peace enforcement, R2P can enhance the ability of the international community to prevent and react to deadly conflict and secure peace.

For R2P to succeed, we should protect core values of life - freedom, equality, tolerance and multiculturalism – for living and working together in peace and harmony. However different we may think we are, according to the human genome, our DNA is 99.9% the same for short, tall, fat and thin people of any race, colour and language. All human beings are genetically the same so why are we obsessed with our identity? So in medical terms, Hindi-Muslim, Israelis-Palestinians, and Hutus-Tutsis, have the same identical DNA.        

Darfur and R2P

Pressure on the UN to act is understandably very strong where the civilian population is suffering from internal strife in states where the government is unable or unwilling to change its policies as is the case in Darfur, where after 3 years, an estimated 300,000 are dead and it is unclear when the UN force willl be sent and who will enforce the peace in Darfur.  

As the Nobel Peace Prize winner, Bishop Desmond Tutu said on the Global Day for Darfur:

"From Cape Town to London, Moscow to New York, concerned citizens are asking why the UN Security Council’s resolutions on Darfur have yet to be enforced. 

"We are still waiting for a no-fly zone, targeted sanctions against the architects of the genocide, and referrals to the International War Crimes Tribunal. 

"No wonder the Khartoum regime doubts the resolve of the international community, and dares to deny UN peacekeepers’ access to Darfur," 

The problem is with the structure of the United Nations which does not foster quick and decisive responses. Vetoes by the permanent members of the Security Council–or even threats of vetoes–can undermine effective international action. Bureaucratic hurdles and diplomatic negotiations can be time-consuming, making it difficult to respond to rapidly unfolding events. More generally, any form of international coercion is usually diplomatically and politically costly, creating a strong incentive for international actors to avoid difficult measures. The international response to the crisis in Darfur is illustrative. China, which has ties to the Sudanese government and enjoys a permanent seat on the Security Council, was reported to have opposed coercive measures like sanctions.[5] The first Security Council resolution that took any direct action against the perpetrators of human rights abuses was not passed until March 29, 2005, two years after the violence began. Even today, ethnically targeted violence and a ‘culture of impunity’ continue in Darfur.[6]

Agreement this August, has been reached by which Security Council finally authorised UNIMIS to deploy peacekeepers in Darfur, but categorically rejected by the Sudanese government.

So we find ourselves in a difficult situation where innocent civilians are being killed and large-scale genocide is unfolding in one hand, and the international community is unable to enforce R2P. Diplomatic channels, mediation and other tools have not been effective to stop violence. So what are the ways open to us to stop the bloodshed.

a)      Strengthen the African Union peacekeepers. The problem is that they are there and not effective.

b)      Send the UN peacekeepers without permission of the Sudanese government. This is being discussed but no decision has been taken.

c)      Refer the Sudanese government to International Criminal Court (ICC), changed with crimes against humanity. The problem with this is the duration of time while the killings continue.

d)      Use of force and resorting to military action. It could stop the killings quickly and effectively. However, without the agreement of Khartoum, it may be counterproductive.    

e)      Bring all parties, Sudan neighbour’s, African countries, 5 permanent members of the Security Council, government and rebels, to have a dialogue and find a solution. This should be a catalyst for a non-violent, solution. However, the problem is who will initiate this process and how long will it take?
 

Conclusion

So the concept of R2P is morally sound, accepted by the international community, but hard to enforce. R2P concept is a challenge for civil society and the broader peace movement. Our responsibility is to ensure that genocides and wars against humanity do not occur and if they do, how can we respond quickly and effectively to stop killings, torture and rapes.

A small group of dissenters continues to express concern that powerful countries will use R2P as a pretence for military intervention.

Although the UN Summit Outcome Document includes a reference to the need for the General Assembly to continue considering R2P and its implications, currently there is no formal inter-governmental process to implement R2P at the UN. In April 2006, the Security Council “reaffirm[ed]” the World Summit Outcome Document provisions “regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity” in Resolution 1674 on the protection of civilians in armed conflict. In the Summit Outcome Document, world leaders affirmed that the international community is prepared to take action through the Security Council in a timely and decisive manner on a case by case basis when states are manifestly failing to protect their populations. Resolution 1674 signifies that the Security Council has accepted this role. Further discussions are still needed to determine how R2P will be put into practice, particularly to determine when R2P should apply and what measures should be used.

Part of the task here must be to generate much more widespread understanding and support for the responsibility to protect concept itself. It is becoming known by policymakers and those in the media and elsewhere who influence them. But R2P is not yet a household term anywhere in the world – and it needs to become one everywhere. We have to get to the point where, when the next conscience-shocking mass human rights violation comes along, the reflex response, of both governments and publics around the world, is to find reasons to act, not reasons to pretend it is none of our business. And that means some sustained campaigning by all those of us who take seriously - as we must, despite all the backsliding case after case – the battle cry ‘never again!’ Our common humanity demands that the responsibility to protect be a permanent item on the global security agenda – as a matter not just of principle but of operational practice.

We have to believe that every person has dignity and deserves a chance, that we all do better when we work together, that our differences are interesting but our common humanity matters more, and then we have to turn this set of lofty ideas into action in a world that is profoundly divided, not just as we see it, over our political and religious differences, but divided in fact.  

We are all gathered here today who are visionary and agents of change what I call next generation people. Similar meetings were held in the long past when ideas of uprooting slavery, abolishing apartheid, independence from former colonies were discussed. Today we are in a situation where slavery is abolished, apartheid is not more and most of the former colonies are independent states. If that can be done, then surely we can make a breakthrough for the R2P concept to become a new rule of customary international law and enforceable. 

 For the report, The Responsibility to Protect, please visit http://www.iciss.ca 

For R2PCS documents, please visit http://www.responsibilitytoprotect.org/documents

For further information please visit:
 

Vijay Mehta is an author and global activist for peace, development and human rights. His latest book, The Fortune Forum Summit: For a Sustainable Future examines the threats and challenges of crippling poverty, global warming, worldwide diseases and interrelated issues of international security and development.. His other books are Arms No More, and The United Nations and Its Future in the 21st Century. He is president of VM Centre for Peace and Chair of Arms Reduction Coalition. He is also co-chair of World Disarmament Campaign and trustee of Fortune Forum. He is also a member of the national CND Council.