Introduction
At the 2005 World Summit, all Heads of State and Government affirmed the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. The responsibility to protect (commonly referred to as ‘RtoP’) rests upon three pillars of equal standing: the responsibility of each State to protect its populations (pillar I); the responsibility of the international community to assist States in protecting their populations (pillar II); and the responsibility of the international community to protect when a State is manifestly failing to protect its populations (pillar III). The adoption of the principle in 2005 constituted a solemn commitment, which included much expectation of a future free of these crimes.
Given the current range and intensity of crises around the world, many feel compelled to say that responsibility to protect has failed. At the same time, important advances in the development of the principle and in the design of practical measures for its full implementation provide a more optimistic picture.
Challenges
It is unquestionable that despite the progress made, however, we remain far from the objective envisaged in 2005. Deeply worrying developments over the last few years threaten to widen the gap between the commitment expressed by Heads of State and Government and the daily reality confronted by populations around the world.
There is a range of situations today where populations are at risk of the responsibility to protect crimes, or where such crimes are ongoing. These crises are taking place against a backdrop of retreating internationalism, diminishing respect for international humanitarian and human rights law and political disunity in key decision-making bodies such as the Security Council. .
We have been witnessing an alarming disregard for fundamental tenets of international law. In many of the armed conflicts that have ignited in recent years, parties to the conflict are consciously violating international humanitarian law; we are seeing widespread and flagrant attacks against protected civilian sites, such as hospitals and schools, as well as against protected persons, including humanitarian and health-care workers.
It is a sobering fact that despite the emergence of brutal, non-State armed groups, the most serious violations of international humanitarian and human rights law, which could amount to atrocity crimes, are still committed by the armed forces and auxiliary militia of States. Likewise, Governments are failing to hold perpetrators of atrocity crimes accountable for their actions. At the international level, some States parties to the Rome Statute, by which the International Criminal Court was established, are not cooperating with the Court, or even taking steps to withdraw from the Statute. The Security Council is increasingly reluctant to refer situations to the Court, and some political leaders are clearly seeking immunity from legal accountability.
Opportunities
Any honest assessment requires us to face the grim reality described above. At the same time, we must also consider other elements that point in a positive direction. Much has been achieved since 2005.
First, it is clear from our engagement with Member States, and from the annual informal dialogues in the General Assembly on the responsibility to protect, that there is consensus on many core elements of the principle. There is agreement that prevention is at the core of responsibility to protect ; that efforts to assist States in fulfilling their protection responsibilities should respect the principle of national ownership; that any collective international action should employ the full range of diplomatic, political and humanitarian measures; and that military force should be considered only as a measure of last resort.
Second, all the key intergovernmental bodies of the United Nations have deliberated on and referred to the responsibility to protect, and in some cases passed both thematic and country-specific resolutions related to the principle. The Security Council has referred to responsibility to protect in more than 50 resolutions and presidential statements. The Human Rights Council has referenced the principle in a number of resolutions, most recently the 30 September 2016 resolution on transitional justice.[i] Moreover, the Framework of Analysis for Atrocity Crimes developed by the Office of the Special Advisers on the Prevention of Genocide and on the Responsibility to Protect has been issued as an official United Nations document,[ii] disseminated and used both within and beyond the Organization, assisting the tasks of early warning and early action.
And third, we have seen the development of regional and global networks of focal points on the responsibility to protect and the prevention of genocide and atrocity crimes over the past decade, which can support the development of the national and regional architecture needed to implement this principle and encourage the sharing of good practices and expertise. There are also important initiatives underway to raise awareness among legislators and parliamentarians about the responsibility to protect. This is crucial work that must be supported.
Next steps
The progress made of course needs to be sustained, and further efforts are required to overcome points of contention. On the conceptual side, for example, Member States have requested further clarification on the basis for taking collective action under the third pillar of responsibility to protect, particularly for considering the authorization of military force by the Security Council when States manifestly fail to protect their populations.
Also, although Member States have repeatedly emphasized their support for the prevention of atrocity crimes, this has not been sufficiently translated into concrete support for preventive strategies. This requires honest assessments of national vulnerabilities. The United Nations has always insisted that no State or region can consider itself immune to the risk of atrocity crimes and that all States should start by focusing on their responsibilities outlined in pillar I. The prevention of atrocity crimes must start at home. Sustainable implementation requires that various branches of government, along with civil society and private sector actors, work together to craft specific policies and a robust culture of prevention. Internally, each society must look at its own risk factors and sources of resilience, and respond in the tailored ways that make most sense in each context. This, of course, requires moving the responsibility to protect beyond diplomatic chambers in New York, Geneva and regional centres into the mechanics of national policymaking. The United Nations will continue to support all efforts aimed at strengthening resilience to atrocity crimes through preventive action. The new Secretary-General has made a clear commitment to place prevention at the heart of his agenda.
The main obstacle, however, remains the strong political interests on the part of powerful States that work against early action to address situations in which populations are at risk. This was clearly the case as the crisis mounted in Syria during the summer of 2011, and has continued to block decisive action as the civil war featured more frequent and brutal instances of atrocity crimes.
We need to find ways of expanding the political base within the Security Council for ‘timely and decisive’ collective action. One place to start is to seek the commitment by Council Members that they will not block any action aimed at addressing the risk of genocide, war crimes, ethnic cleansing and crimes against humanity. There are specific initiatives in place at the moment that seek such commitment.
At times, blockages at the global political level open opportunities for other actors, especially at the national, subregional, and regional levels, to seize the initiative. This has certainly been true in the case of the massive and coordinated efforts to provide humanitarian assistance to Syrians by the United Nations, Member States and civil society actors working together.
Accountability for prevention
Although the responsibility to protect is a relatively well established principle, it is vulnerable to imperfect implementation unless those actors responsible for its implementation can be held accountable for their action or inaction. The accountability of different actors and under different pillars can take various forms: legal, political or moral.
Many of the elements of the first pillar constitute legal obligations of States under international humanitarian, human rights, refugee and criminal law. Accountability for the provision of assistance to Member States by other States to help them fulfill their responsibility to protect under the second pillar does not only have a moral character: it is also a political obligation stemming from the commitment made by Heads of State and Government. In the case of the third pillar of the principle, relevant bodies are both politically and morally accountable – including the General Assembly, Human Rights Council and Security Council – with regards to both responsiveness and timely and decisive action, when needed.
Given the importance of this issue, the Secretary-General has decided to focus his 2017 report on the responsibility to protect on “The responsibility to protect and accountability for prevention”. The report will reflect on key elements of accountability for implementation in relation to each of the three pillars of the responsibility to protect, with emphasis on the prevention of the crimes. This theme aligns with the Secretary-General’s prioritization of prevention.
The role of national parliaments
National parliaments play a critical role, in this regard. It is at the parliamentary level that domestic policies are refined, amended or adopted, and where decisions about budgetary allocations to support their implementation are made. It is also at this level that the international development agendas and the foreign policy priorities of governments are debated. In other words, parliaments play a significant role in shaping national policy across the three pillars of the responsibility to protect. They also play a role in holding States accountable for meeting their commitments.
In my view, there are three distinct areas in which national parliaments play such a role:
Firstly, in their oversight of national budget allocations, parliaments decide what the policy priorities for funding should be, and on the level of funding each should receive. In short, they ‘ratify’ and ‘rectify’ the draft budgets presented by governments. This is done more directly in the discussion on adoption of the budget itself. But there are also other opportunities. For instance, the presentation of annual reports by relevant institutions or officials provide parliaments with the opportunity to focus attention on specific priorities. The presentation of the annual report of the national Ombudsman, for example, provides one such opportunity.
Secondly, parliaments are responsible for drafting, discussing, amending and approving legislation. Parliaments have a responsibility to ensure the adoption of legislation that addresses the international responsibilities and obligations of their government. Also, they implement international commitments made by their governments. This includes, of course, additions or amendments to the existing national legal framework. To date, many States have yet to ratify key international instruments such as the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Likewise, many States have not domesticated genocide, war crimes and crimes against humanity in their Penal Codes. In addition to ratifying and domesticating key international instruments, States have a responsibility to take legislative action against incitement to atrocity crimes.
Thirdly, national parliaments can dedicate time in parliament to discussions on atrocity prevention. This could be in the form of an annual or bi-annual thematic debate, at which parliamentarians could discuss national, regional and international risk assessments and link them to government policies. Parliaments could debate atrocity prevention activities undertaken by their governments at the national, regional and global level. In doing so, they could address their own needs for international assistance, as well as suggest potential international assistance their governments could offer to other States.
Conclusion
The past decade has shown us that collective and coordinated action can make a difference. The next period of implementation of the responsibility to protect must continue to build on the concrete advances that have been made—and to learn the lessons from past efforts to protect. This redoubling of our collective commitment will ensure that the principle continues to inspire and to catalyse action, delivering more effective protection for all populations. This requires enhanced support by a number of national and international actors. The role of political parties, both as policy contributors and as platforms of influence for government and parliamentary initiatives, is central to this objective.
Ivan Šimonović is Special Adviser to the Secretary-General on the Responsibility to Protect.
