The United Nations and the Responsibility to Protect
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The United Nations and the
August 2008
Responsibility to Protect
Edward C. Luck
Edward C. Luck is Senior Vice President and Director of Studies at the International Peace Institute and Special Adviser to
the UN Secretary-General at the Assistant Secretary-General level, in which capacity he primarily focuses on the
Responsibility to Protect. He is currently on public service leave as Professor of Practice in International and Public Affairs
of the School of International and Public Affairs, Columbia University, where he remains Director of the Center on
International Organization.
Kofi Annan, former UN secretary-general, on his suc- • The secretary-general’s approach is “narrow but
cessful January-February 2008 effort to mediate the deep,” resisting appeals to broaden the scope beyond
postelection crisis in Kenya: the four crimes and violations agreed at the 2005
Summit, while proposing that a variety of policy
I saw the crisis in the R2P [Responsibility to tools under Chapters VI, VII, and VIII of the UN
Protect] prism with a Kenyan government Charter be utilized to prevent, deter, and respond to
unable to contain the situation or protect its serious violations.
people. I knew that if the international commu-
nity did not intervene, things would go hope- • The secretary-general has called for renewed empha-
lessly wrong. The problem is when we say sis on the first two pillars, given the lack of serious
“intervention,” people think military, when in attention to preventive measures and to ways of help-
fact that’s a last resort. Kenya is a successful ing states to meet their core R2P responsibilities. At
example of R2P at work.1 the same time, he has pointed to a range of noncoer-
cive, as well as coercive, measures that could be taken
• At the 2005 World Summit, the assembled heads of under the third, or response, pillar. What is needed,
state and government agreed that R2P rests on three in his view, is “an early and flexible response, tailored
pillars: 1) the responsibility of the state to protect its to the specific needs of each situation.” To that end,
population from genocide, war crimes, ethnic cleans- he envisions an integrated strategy that draws ele-
ing, and crimes against humanity, and from their ments from each of the three pillars.
incitement; 2) the commitment of the international
community to assist states in meeting these obliga- Introduction
tions; and 3) the responsibility of the member states to In what was widely hailed as a historic breakthrough,
respond in a timely and decisive manner when a state the 2005 World Summit unanimously affirmed the pri-
is manifestly failing to provide such protection. mary and continuing legal obligations of states to pro-
tect their populations—whether citizens or not—from
• Today, the UN member states are united in their sup- genocide, war crimes, ethnic cleansing, and crimes
port for the goals of R2P but less so on how to against humanity, and from their incitement.2 The
achieve them. world leaders flatly declared that “we accept that
responsibility and will act in accordance with it.”
• UN Secretary-General Ban Ki-moon has pledged to While this first pillar on which R2P rests is firmly
“operationalize” R2P and to submit to the General anchored in existing obligations under international
Assembly proposals to do so by the end of 2008. In law, its second and third pillars are more innovative
a speech in Berlin on July 15, 2008, he began to artic- and have farther-reaching implications.
ulate his vision for R2P.
Policy Analysis Briefs are thought-provoking contributions to the public debate over peace and security issues. The views expressed in this brief are
those of the author and not necessarily those of the Stanley Foundation. The author’s affiliation is listed for identification purposes only.2 The second, too often neglected, pillar is a com- meeting these obligations and respecting funda-
mitment by the international community to assist mental human rights, the state would have less
states in meeting these obligations. The United reason to worry about coercive intervention from
Nations and its partners, in other words, should abroad. These conclusions reflected evolving
seek to help states succeed, not just to react once notions of sovereignty that had long historical
they have failed to meet their prevention and pro- antecedents in both Western and non-Western
tection obligations. The third, and much dis- political thought and doctrine.7 In 1992, for
cussed, pillar is acceptance by member states of example, the first UN secretary-general from
their responsibility to respond “in a timely and Africa or the Arab world, Boutros Boutros-Ghali,
decisive manner,” in accordance with the UN commented that “respect for its [the state’s] fun-
Charter, to help protect populations from the four damental sovereignty and integrity are [sic] cru-
listed crimes and violations when a state is “man- cial to any common international progress. The
ifestly failing” to do so. As paragraphs 138 and time of absolute and exclusive sovereignty, how-
139 of the Outcome Document make abundantly ever, has passed; its theory was never matched by
clear, the response could involve the whole range reality.”8 In 2000, five years before the Summit
of UN tools, including pacific measures under declaration, the Constitutive Act of the African
Chapter VI, coercive ones under Chapter VII, and Union (Article 4 (h)) asserted “the right of the
collaboration with regional and subregional Union to intervene in a member state pursuant to
arrangements under Chapter VIII of the Charter. a decision of the Assembly in respect of grave cir-
“The key,” underscores UN Secretary-General Ban cumstances, namely: war crimes, genocide, and
Ki-moon, “lies in an early and flexible response, crimes against humanity.”9 Though some critics
tailored to the specific needs of each situation.”3 have claimed that the notion of R2P is an inven-
tion of the North and West that has been imposed
Conceptual Evolution on the developing countries of the South, this
The failure of the international community to early endorsement of a similar, and less caveated,
respond in a timely and effective manner to the version of R2P suggests otherwise. Indeed, the
horrific genocides in Rwanda in 1994 and in debate over R2P at the United Nations these days
Cambodia two decades earlier, as well as to the is South-South and North-North as much as
mass murder in Srebrenica in 1995—the latter North-South.
two under the watch of UN peacekeepers—had
raised disturbing questions both about political In response to the indeterminate debate over
will and about UN capacity. This growing public humanitarian intervention and the Security
and official uneasiness came to a head in divisive Council’s split over how to address the crisis in
debates within the Security Council at the end of Kosovo, the Canadian government decided to
the century on what to do about mounting vio- launch an independent International Commission
lence and possible ethnic cleansing in Kosovo. In on Intervention and State Sovereignty in 2000. As
1998 and 1999, then UN Secretary-General Kofi cochairs Gareth Evans and Mohammed Sahnoun
Annan posed, in a series of eloquent speeches, the commented, “external military intervention for
stark choice between standing by when mass humanitarian protection purposes has been con-
atrocities were unfolding or intervening militarily troversial both when it has happened—as in
even if Security Council authorization was Somalia, Bosnia and Kosovo—and when it has
blocked.4 For many member states, however, this failed to happen, as in Rwanda.”10 Over the
was seen as an unacceptable choice between two course of their deliberations, however, the geo-
unpalatable options. In essence, they found the graphically diverse blue-ribbon commissioners
debate over humanitarian intervention to be ulti- came to see protection from a much broader per-
mately unsatisfying and unproductive in terms of spective than as simply a contest between state
advancing UN policy or doctrine.5 and individual sovereignty. Coining the phrase
“Responsibility to Protect,” their conclusions
Meanwhile, with much less fanfare, Francis Deng addressed a responsibility to prevent, a responsi-
and his colleagues at The Brookings Institution bility to react, and a responsibility to rebuild, see-
had been developing the concept of “sovereignty ing a continuum of graduated policy instruments
as responsibility.”6 Sovereignty, they posited, across this spectrum. Though concerned about
imposed abiding obligations toward one’s people, proper authority and rules for the use of force,
as well as certain privileges internationally. By much of their report stressed the advantages ofprevention and of encouraging states to meet ernment in history. The seriousness of the com- 3
their core protection responsibilities. Some of the mitment, it was widely believed, was reinforced
commission’s key recommendations were picked both by the high level and by the near-universal
up by Kofi Annan’s High-level Panel on Threats, scope of those undertaking it, including a num-
Challenges and Change (2004) and his subse- ber of countries that had not been states parties
quent “In Larger Freedom” report (2005). These, to the relevant human rights, humanitarian, and
in turn, provided material for consideration by refugee conventions.
the September 2005 Summit that adopted this
historic R2P language. • Two, the articulation of R2P related the preven-
tion of ethnic cleansing, war crimes, and crimes
The deliberations at the Summit regarding R2P against humanity with the prevention of geno-
were intense, prolonged, and contentious, literal- cide. Though no set sequence was posed, it was
ly concluding in the final hour. Neither did con- understood that in some cases the commission
sensus come easily nor can delegations now of the lesser atrocities could trigger the ultimate
credibly claim that paragraphs 138 and 139 were one. Prevention and protection efforts, there-
just slipped into the final draft of the Outcome fore, should encompass the whole range of R2P
Document without due reflection and considera- crimes and violations. The linkage was under-
tion. Some proponents, espousing a more open- scored by the inclusion of paragraph 140, reaf-
ended and expansive conception of human firming support for the ongoing work of the
security, were disappointed at the number of Special Adviser for the Prevention of Genocide,
caveats that were attached to paragraph 139, under the Responsibility to Protect section of
which elaborates the third pillar on conditions for the Outcome Document. These two closely
an international response. Critics from this per- related mandates are being pursued in tandem
spective caricatured the results as “R2P-lite.” at the United Nations.
Those concerned about the appearance of giving
the major military powers a license to intervene • Three, for all of the conditional language of
under a humanitarian pretext, on the other hand, paragraphs 138 and 139, they begin to point to
insisted on limiting the scope to the four listed the kinds of tools, actors, and procedures that
crimes and violations of genocide, war crimes, could form the basis for operationalizing R2P
ethnic cleansing, and crimes against humanity. In principles. They indicate a path for advancing
paragraph 139, the member states do assert that Secretary-General Bank Ki-moon’s goal of nar-
“we are prepared to take collective action, in a rowing the gap between promise and practice in
timely and decisive manner, through the Security this sensitive and consequential area of policy.
Council, in accordance with the Charter, includ-
ing Chapter VII,” but only “on a case-by-case • Four, the very process of seeking agreement on
basis . . . should peaceful means be inadequate R2P wording at the Summit brought a long-
and national authorities are manifestly failing to simmering, but poorly defined, debate to a
protect their populations” from the four crimes head, compelling national policymakers at the
and violations. Skeptics saw this as a basis for highest level to come to grips with the evolving
inaction, as much as for action. To underline that nature of sovereignty and the need to prevent
R2P was not just to be a matter for the Security atrocity crimes. The R2P paragraphs survived
Council, in paragraph 139 the member states when other important and controversial
note that “we stress the need for the General issues—such as disarmament and the prolifera-
Assembly to continue consideration of the tion of weapons of mass destruction—did not.
responsibility to protect.”11 The historic significance of embracing the
notion of R2P was widely recognized by both
Given these caveats and the fact that R2P is large- sides of the debate.
ly based on existing obligations under interna-
tional law, why was the declaration so widely The words of the Outcome Document, ultimately,
greeted as a major step forward in the protection matter because they do not stand alone; they are
of fundamental human rights? both the product of and will be sustained by larg-
er political and historic circumstances, some of
• One, it gained political force as the product of which are noted above.
the largest gathering of heads of state and gov-4 The notion of R2P reflects public determination determination to “operationalize” R2P and to
to avoid the kinds of mass atrocities that shocked translate it “from words to deeds.”15 Referring to
popular sensitivities in the 1990s. Though hard to his “deep and enduring” personal commitment to
measure, there is ample reason to believe both R2P, the secretary-general has announced his
that these concerns are more acute today than intention to report to the General Assembly on his
even two or three decades ago and that they tran- proposals for giving institutional and doctrinal
scend national boundaries and the North-South form to R2P by the end of 2008.16 As the follow-
divide. There have been substantial local deliber- ing sections elaborate, this will not be a simple task
ations and organizing around R2P themes in
Asia, Latin America, and Africa, as well as in Analysis
Europe and North America. In February 2008 an 17
Asia-Pacific Centre for the Responsibility to
Legal Issues
Protect—a collaboration among research centers The first pillar of R2P—state responsibility—is
in Australia, Indonesia, and Thailand—was firmly based on existing international law.
launched in Bangkok. Among its early products Treaty-based and customary international legal
will be the first international journal on R2P, obligations require states to prevent and punish
Global Responsibility to Protect.12 That same genocide, war crimes, and crimes against human-
month, an ambitious Global Centre for the ity. These obligations are most clearly defined in
Responsibility to Protect opened at the Ralph relation to genocide and war crimes, which have
Bunche Institute for International Studies at the a long-standing treaty basis,18 although their
Graduate Center of the City University of New scope continues to evolve.19 While crimes against
York. To raise public awareness and understand- humanity remain largely uncodified, there is now
ing, the Global Centre published a brief R2P a substantial and growing body of case law from
primer and a response to fifteen frequently asked the various international courts and tribunals
questions in mid-2008.13 Meanwhile, the elaborating their nature and content. Ethnic
Responsibility to Protect—Engaging Civil Society cleansing, the fourth category of acts coming
Project of the World Federalist Movement— under the R2P umbrella in the Outcome
Institute for Global Policy is spearheading an Document, is not currently a crime in its own
effort to organize a global network of regional right under international law. However, since the
and subregional R2P groups and organizations, term has been used to describe conduct that may
particularly in the developing world. A number constitute genocide, war crimes, or crimes
of prominent human rights and humanitarian against humanity, in practice acts of ethnic
nongovernmental organizations (NGOs) have cleansing are likely to constitute at least one of
been active in the effort to build a truly global these well-established international crimes.
public constituency for R2P.
The legal understanding of genocide, war crimes,
Undoubtedly the most dramatic testimony to the and crimes against humanity that has developed
mass appeal of R2P principles came in the April over three generations since the Nuremberg
2008 address of Pope Benedict XVI to the Tribunal is largely reflected in the provisions of
General Assembly. His Holiness emphasized the the Rome Statute of the International Criminal
centuries-old roots, as well as the moral impera- Court (ICC), which entered into force in 2002.20
tive, of R2P. According to the Pope, the R2P con- The Rome Statute also strengthens existing obli-
cept was “already present implicitly at the origins gations on states (directly in the case of the 106
of the United Nations, and is now increasingly States Parties to the Statute) to effectively punish
characteristic of its activity.” In his view, R2P perpetrators of these international crimes.21 By
constitutes, “an aspect of natural reason shared ending impunity, the ICC and regional tribunals
by all nations, and the result of an international serve to further R2P principles. R2P, in turn, acts
order whose task it was to regulate relations politically to amplify demands for accountability
between peoples.”14 in such cases, whether through criminal prosecu-
tions or other appropriate forms of redress.
As noted above, Kofi Annan deserves credit for
putting R2P on the global political map. But it Though focused on genocide, war crimes, ethnic
has been his successor, Secretary-General Ban cleansing, and crimes against humanity, R2P is
Ki-moon, who has spoken repeatedly of his not intended to detract from the much broaderrange of obligations existing under international the 1990s, lacked the critical second pillar—inter- 5
humanitarian and human rights law, refugee law, national assistance in helping the state meet its
and international criminal law. Together, they pro- core protection responsibilities—that is so essen-
vide the essential normative framework for R2P.22 tial to the principle of R2P. R2P envisions a much
In particular, R2P should serve to bolster efforts to wider spectrum of tools or instruments, including
provide greater protection to women, children, for prevention, protection, capacity-building, and
minorities, internally displaced persons, and rebuilding, that do not entail coercive action.
refugees from the listed crimes and violations.
Human security posits that public concern and
As noted above, much attention has focused on policy choices should encompass the security of
the third pillar, response, of R2P. Generally, under individuals, not just of states, across the whole
international law when a state violates its interna- range of possible threats. Rather than being
tional obligations, it is expected to cease the vio- restricted to a relatively narrow list of atrocities,
lation (if it is continuing), offer appropriate as in the Summit’s definition of R2P, human secu-
assurances of nonrepetition, and make full repa- rity encompasses phenomena as diverse as
ration for any injury caused. However, the prohi- HIV/AIDS, climate change, poverty, and water,
bitions on genocide and a number of specific acts food, and energy scarcity. Human security offers
that may constitute war crimes or crimes against an important nontraditional way of thinking
humanity are considered peremptory norms of about security, but it does not attempt to offer the
international law.23 There are some indications kinds of specific policy choices and instruments
that, when a state commits a serious breach of a that R2P does. The latter represents the applica-
peremptory norm, the international community tion of human security perspectives to a specific
should cooperate to bring the breach to an end area of public policy that has long vexed publics
using lawful means. The clearest statement of this and policymakers alike.
is found in Article 41 of the International Law
Commission’s (ILC) carefully elaborated Articles Some R2P enthusiasts seek to apply it to a much
on Responsibility of States for Internationally wider spectrum of calamities than those agreed
Wrongful Acts.24 However, as the ILC itself by the assembled heads of state and government
acknowledges in its commentary on the draft at the 2005 Summit. For instance, a number of
Articles, it is “open to question” whether a posi- commentators called the May 2008 cyclone in
tive duty of cooperation currently exists, and Myanmar/Burma a test case for R2P, questioning
Article 41 “in that respect may reflect the pro- the utility of the concept if it could not be
gressive development of international law.”25 employed in such a pressing case of human need
While the third pillar of R2P does not, of itself, and government intransigence.27 As this author
impose new legal obligations on the international has argued, however, there are strong political,
community in cases of genocide, war crimes, eth- legal, and pragmatic reasons not to take that
nic cleansing, or crimes against humanity, it is path.28 Politically, many member states are under-
consistent with evolving state practice, at least standably wary of possible efforts to stretch R2P
since the 1990s, toward enhanced cooperation in into aspects of national policy far from the four
such situations. proscribed crimes and violations. If the scope is
not kept narrow, they warn, then the concept
Conceptual and Political Challenges could become a rationale for interference in
The nature, scope, tools, and emerging practice of essentially domestic affairs and for the strong to
R2P are still debated in civil society and among infringe on the sovereignty and territorial integri-
the member states. As UN Secretary-General Ban ty of the weak. An open-ended conception of
Ki-moon has stressed, distinctions need to be R2P, moreover, would be impossible to opera-
drawn about what R2P is and is not.26 It needs to tionalize or institutionalize. It would become one
be distinguished, in particular, from the related more case of the United Nations stretching a rel-
but distinct notions of humanitarian intervention atively discrete and well-defined concept until it
and human security. In terms of tools, R2P is loses its shape, clarity, and meaning.
much broader than the former. In terms of scope,
it is much narrower than the latter. As noted Unlike humanitarian intervention, R2P puts rela-
above, the concept of humanitarian intervention, tively little weight on military or coercive
which was widely discussed in the late 1980s and responses. As paragraph 139 of the Outcome6 Document underscores, Chapter VII enforcement are in too many cases scattered, poorly coordinat-
measures could be undertaken in serious cases of ed, and do not share relevant information, analy-
manifest failure to protect, should peaceful means sis, and assessments in a timely manner; 5) that
be inadequate and the Security Council so they are not linked directly to the secretary-gen-
authorizes. But, as noted earlier, a raft of less eral, Security Council, General Assembly, and
coercive measures are given priority attention. other principal organs; and 6) that adding R2P
The emphasis on these less intrusive policy tools, criteria and perspectives to the ongoing work of
generally to be employed at earlier points, has led existing entities would enhance their ability to
some observers to call this approach “upstream prevent and deal with this distinct set of crimes
R2P.” The United Nations, for example, has and violations.
applied an R2P perspective to its efforts to
address post-election violence in Kenya in early Institutional Issues
29
2008 but not to the continuing large-scale vio- For the United Nations, the implementation of
lence in Darfur. Part of the explanation for this R2P’s core prevention and protection goals has
distinction is that the fighting broke out in Darfur four main programmatic dimensions: 1) capacity-
some three years before the World Summit adopt- building and rebuilding; 2) early warning and
ed R2P, making this an inappropriate test case for assessment; 3) timely and decisive response; and
a doctrine that did not yet exist. Both UN 4) collaboration with regional and subregional
Secretary-General Ban Ki-moon and his predeces- arrangements. In each, R2P should strengthen
sor, Kofi Annan, who was the chief mediator in existing efforts while helping to identify gaps in
Kenya, have called that crisis the first application how the United Nations and its partners go about
of R2P. Nevertheless, skeptics and public preventing, anticipating, and responding to the
observers alike may well question the utility of four listed crimes and violations.
R2P principles if they are applied only to the eas-
ier cases. Ultimately, the value of any new doc- Capacity-Building and Rebuilding. For R2P pur-
trine or concept will be determined in practice poses, “capacity-building” means strengthening
rather than theory. That is why, of course, the ability of individuals, institutions, and soci-
Secretary-General Ban Ki-moon has put such eties to prevent or diminish the threat of the four
emphasis on operationalizing R2P. crimes and violations and/or to respond when
such atrocities do occur and to rebuild afterwards.
The transition of R2P from promise to practice Viewing the wide-ranging capacity-building work
faces another conceptual and operational hurdle: underway by the UN System through an R2P lens
proving that it brings added value to the myriad may help identify potential synergies among exist-
UN programs on related themes. As the following ing projects, departments, programs, and agen-
section relates, the UN System has wide-ranging cies. Ongoing efforts to encourage interagency
and well-established programs for advancing cooperation on key cross-sectoral issues, such as
human rights and humanitarian norms; for early conflict prevention, rule of law assistance, securi-
warning and conflict prevention; for the protec- ty sector reform, human rights promotion, and
tion of civilians in armed conflict, including from gender equality, could serve R2P goals. More
sexual violence; for peacekeeping and peace- broadly, the wide-ranging efforts to build, rebuild,
building; for strengthening the rule of law; and or bolster institutional capacity in fragile states
for capacity-building across the board. As one being undertaken by the UN peace-building and
might expect, there has been bureaucratic resist- development entities, as well as by bilateral
ance to adding new R2P capacity or perspectives donors and international financial institutions,
to existing entities and efforts, as well as calls for could also help by strengthening good governance
clearer conceptual distinctions. R2P advocates, and effective public administration where it is
on the other hand, have argued: 1) that existing most needed. In this regard, the activities of the
capacities are often weak, underdeveloped, and Peacebuilding Commission could also advance
resource-starved; 2) that they have not proven R2P’s preventive and rebuilding goals. For
effective in preventing and/or protecting popula- instance, much of the work underway in Burundi
tions from R2P crimes and violations in a number and Sierra Leone is intended to reduce the risk of
of cases; 3) that some of the worst genocides in a recurrence of violence, while boosting the
history have not been causally linked to armed resilience of the state in the face of future crises.
conflict; 4) that UN units with similar mandatesCapacity-building is needed within the United received feeds into and informs actual decision 7
Nations itself. Efforts to operationalize R2P prin- making. In June 2008 the Security Council, not-
ciples would necessitate closer collaboration ing “that rape and other forms of sexual violence
between headquarters and the field and between can constitute a war crime, a crime against
the United Nations and its various partners, as humanity, or a constitutive act with respect to
has happened in humanitarian affairs. There, the genocide,” called on the secretary-general to
humanitarian cluster approach adopted by the develop procedures for monitoring sexual vio-
Inter-Agency Standing Committee (IASC) brings lence in armed conflict.34
together relevant UN agencies, NGOs, and other
international organizations involved in the provi- An R2P lens could help the United Nations antic-
sion of humanitarian assistance and expertise. ipate situations involving the four crimes and vio-
Likewise, the linkages between R2P and the lations by enhancing its ability to identify
development assistance approaches of donor precursors, recognize patterns, and share, assess,
countries, regional mechanisms, and the UN and act on relevant information. In particular,
System deserve further exploration. R2P should strengthen and complement the
closely related work of the Special Adviser on the
Early Warning and Assessment. In paragraph 138 Prevention of Genocide. Plans are under way to
of the 2005 Summit Outcome Document, the pursue these mutually-reinforcing mandates
member states pledged to “support the United through a single joint UN office.
Nations in establishing an early warning capabili-
ty.” For the world body, however, the challenge has In addition, an R2P perspective could help to
had less to do with the collection of information ensure a common policy and operational strategy
than with its assessment and analysis (not to men- by providing an integrated framework for relat-
tion with the frequent lack of effective policy ing the various components of a response and for
follow-up). Among the existing early warning gauging their cumulative progress. R2P consider-
frameworks that are directly relevant to R2P are ations might usefully be incorporated, as well,
those addressing conflict prevention (through the into existing early warning, monitoring, and
Interagency Framework for Coordination on reporting mechanisms within the UN System,
Preventive Action); humanitarian developments while helping to facilitate cumulative learning
(through the IASC’s “Early Warning—Early Action about the system’s ability to anticipate and
Report”);30 political developments (through indi- respond to such extreme situations.
vidual divisions of the Department of Political
Affairs and the Executive Committee on Peace and Timely and Decisive Response. R2P does not alter,
Security); human rights developments (through a indeed it reinforces, the legal obligation of member
range of Charter and treaty-based mechanisms, as states to refrain from the use of force except in
well as the work of the Office of the High conformity with the Charter. Decisions about
Commissioner for Human Rights); and the protec- action under Chapters VI and VIII and, where nec-
tion of children (through the UN Children’s Fund’s essary, VII, would benefit from enhanced assess-
early warning system and the Monitoring and ment and greater policy coherence within the UN
Reporting Mechanism overseen by the Special Secretariat. Without strengthening the relation-
Representative of the Secretary-General for ship between the Secretariat and the Security
Children and Armed Conflict).31 Council, however, improved assessments would
not necessarily lead to improved decision-mak-
Several of these mechanisms draw substantially ing.35 Among the useful steps would be provid-
on external sources in developing their assess- ing more support for the secretary-general’s
ments. Some are relatively informal or have infor- good offices function, clarifying the
mal elements, given the sensitivities involved in Secretariat’s place in advocating for particular
monitoring specific country situations;32 others council action, making greater use of existing
are deliberately restricted in their scope.33 Many mechanisms—formal and informal—for bring-
of them face ongoing challenges relating to the ing issues to the council’s attention, and
quality of the information received, its timeliness, increasing transparency in the council’s work-
uneven reporting levels from the field, the incor- ing methods. The related roles of the General
poration of a gender perspective, maintaining Assembly, the Economic and Social Council, the
confidentiality, and ensuring that the information Peacebuilding Commission, and the Human8 Rights Council, particularly in standard-setting UN Regional Centre for Preventive Diplomacy for
and monitoring, also merit further attention. Central Asia may help. Yet the promise of global-
regional collaboration is far more developed on
The operationalization of R2P will clearly require paper than in practice, as capacity-building is
a core competency on the part of the United needed at both the global and regional levels. The
Nations for timely response, whether of a civilian, Ten-Year AU-UN Capacity-Building Programme,
military, or mixed nature. Other than the many whose implementation has been modest and
Chapter VI matters on which the secretary-general uneven to date, provides a high-profile test of the
can take the lead, the organization’s response limits and prospects for such collaboration.38
depends on the ability of the Security Council or
other intergovernmental organs to agree in a time- Conclusions
ly manner on a sensible, clear, and feasible course Two conclusions stand out from the foregoing
of action. Even if the member states get the man- analysis. One, R2P is a politically potent concept:
date right, finding the material, human, financial, the latest step in the historic development of
and in extreme cases, military resources to imple- human rights and humanitarian norms. It reflects
ment it is rarely assured. Too often, mandates are evolving legal conceptions of individual and col-
not tailored either politically or materially to the lective responsibility and of the obligations of
realities on the ground. From an R2P perspective, sovereignty, as well as the emergence of a
the lack of coherent doctrine underpinning the transnational political consciousness about the
growing number of mandates that fall between tra- urgency of preventing the reoccurrence of mas-
ditional peacekeeping missions and armed engage- sive atrocities on the scale of Cambodia, Rwanda,
ment with a specific adversary or adversaries poses or Srebrenica. The consensus product of one of
a particular challenge.36 While the United Nations the largest gatherings of heads of state and gov-
and member governments have been working for ernment ever, R2P is not going to fade away like
over a decade to develop appropriate doctrine and some passing fad.
operational capacities for such contingencies,
much remains to be done on both dimensions of Two, for all its potential, the notion of R2P is still
the protection challenge. in its infancy, vulnerable to misinterpretation and
mishandling. How to implement paragraphs 138
Collaboration with Regional and Subregional and 139 of the Outcome Document still needs fur-
Arrangements. Neighbors can play an instrumen- ther elaboration by the secretary-general and dis-
tal role in helping to prevent societies from reach- cussion by the General Assembly, as called for in
ing the stage where R2P crimes and violations paragraph 139. As Secretary-General Ban Ki-moon
become likely, as well as in early warning. R2P has pointed out, the provisions of R2P will only be
thus emphasizes the potentially valuable role to realized through practice and through its applica-
be played by the United Nations’ partners, partic- tion to situations on the ground. The journey from
ularly regional and subregional arrangements, in conceptualization to operationalization can be as
helping states meet their prevention and protec- difficult in the world body as it is essential.
tion obligations. R2P could usefully reinforce
longstanding UN efforts to improve its modes of Like most infants, R2P will need to walk before it
collaborating with regional and subregional can run. Those claiming parentage, kinship, or
mechanisms, as well as its commitment to build- friendship of the concept should be careful not to
ing their capacities to anticipate, assess, respond, raise expectations too high, too soon, and cer-
and rebuild. tainly not to expand its reach to situations
beyond those agreed at the World Summit. The
Among the United Nations’ challenges are improv- 2005 consensus was real, but based on a strict
ing communication with and inclusion of regional and narrow conception of what R2P is and is not.
and sub-regional actors in its prevention and pro- The agreed scope must be respected if the concept
tection efforts; providing adequate support for is to gain the political traction required for its
regional efforts; improving capacity at UN head- implementation. Surely one factor in R2P’s
quarters; and in the field, to analyze the regional enduring public appeal is its aspirational quality.
implications of a given situation and to generate But, at least at the United Nations, soaring aspi-
appropriate strategies.37 The establishment of the rations cannot flourish on a political base that is
UN Office for West Africa in Dakar and the new too narrow and uncertain to sustain it. At thispoint, the R2P project faces more than its share to try.”39 Fair enough, but whether and how his 9
of bureaucratic inertia and political doubts. Both, vision will be realized will depend on many oth-
ironically, attest to prevalent perceptions of its ers as well: member states, the Secretariat,
deep public appeal and policy potential. regional and subregional organizations, and
civil society, among others. Progress will
The status quo gives way slowly, sometimes require marrying the larger inspiring vision of
painfully slowly, at the United Nations. But it does R2P with the practical and incremental instincts
give way with time and sustained effort. It took that have always defined the pace of sustainable
human rights and humanitarian norms, for change within the world body. Though not for
instance, decades to become well established in the impatient, this is the only sure route to
UN values and practice and even longer to take translating the promise of R2P into effective
full institutional form. R2P, building on these and sustainable practice.
accomplishments, will have less distance to travel.
Historical trends clearly appear to be in R2P’s Endnotes
favor. No doubt the first two pillars—the preven- 1
Roger Cohen, “How Kofi Annan Rescued Kenya,”
tive or upstream end of R2P—will become stan- The New York Review of Books, Vol. 55, No. 13,
dard operating procedure for the UN System and August 14, 2008.
its partners well before the third pillar. The first 2
UN document A/RES/60/1.
two pillars, with their stress on prevention, capac-
3
Address of the Secretary-General, Berlin, July 15,
ity-building and rebuilding, early warning, and 2008, UN document SG/SM/11701. Paragraph 139,
global-regional collaboration, face relatively little moreover, underscores that the nature of the response
should be determined “on a case-by-case basis.”
political opposition. Here the challenge is more 4
For a handy compilation of his key speeches, see The
institutional and intellectual—figuring out what Question of Intervention: Statements by the
needs to be done, how to do it, and who should Secretary-General, United Nations, New York,
do it—than political. The implementation of the December 1999. It contains, among others,
third pillar, mounting a “timely and decisive” “Reflections on Intervention,” Ditchley Park, United
response when a state is “manifestly failing” to Kingdom, June 26, 1998; and “Two Concepts of
protect its population, will come more slowly and Sovereignty,” Address to the 54th Session of the UN
unevenly. The secretary-general and regional and General Assembly, September 20, 1999.
subregional organizations can take, and have
5
In this regard, the debate in the General Assembly
taken, a range of helpful noncoercive steps in such following Kofi Annan’s September 20, 1999 speech
was telling. See UN documents A/54/PV.8 and
situations. But under the Charter, enforcement
A/54/PV.9, September 22, 1999.
measures require the authorization of the Security 6
Francis M. Deng et al., Sovereignty as Responsibility:
Council, a highly political and unpredictable Conflict Management in Africa, The Brookings
intergovernmental body. The prominence of R2P, Institute, Washington, DC, 1996. Professor Deng
if nothing else, is likely to raise the political costs now serves as the Secretary-General’s Special Adviser
of blocking R2P action, especially in the face of on the Prevention of Genocide, with the rank of
unfolding genocide. The veto option will remain Under-Secretary-General.
for the five permanent members of the council, of
7
Some of these sources are cited in Edward C. Luck,
course, but it will become an increasingly unat- “The Responsible Sovereign and the Responsibility
tractive recourse, as may already be seen in the to Protect,” in Joachim W. Müller and Karl P.
Sauvant, eds., Annual Review of United Nations
council’s votes on Darfur.
Affairs, Oxford University Press, Oxford, forthcom-
ing 2008.
R2P, in other words, is here to stay. The direc- 8
Boutros Boutros-Ghali, An Agenda for Peace,
tion of change is clear enough, though its pace A/47/277—S/2411, June 17, 1992, paragraph 17,
and extent will depend on political and bureau- page 5.
cratic decisions in the coming months. Clearly 9
http://www.africa-union.org/root/au/AboutAU
the secretary-general is an enthusiast for R2P, /Constitutive_Act_en.htm.
perhaps its strongest advocate within the house.
10
Report of the International Commission on
To him, R2P “speaks to the things that are most Intervention and State Sovereignty, The Responsibility
noble and most enduring in the human condi- to Protect, International Development Research
Centre, Ottawa, 2001, page vii. An insider account of
tion. We will not always succeed in this cardinal
the work of the Commission and the ideas that
enterprise, and we are taking but the first steps shaped it can found in Gareth Evans, The
in a long journey. But our first responsibility is Responsibility to Protect: Ending Mass Atrocity10 Crimes Once and for All, Brookings Institution Press, Justice, February 26, 2007.
Washington, DC, September 2008. 20
Rome Statute of the International Criminal Court,
11
Two subsequent resolutions of the Security Council July 1, 2002, 2187 UNTS 3. While the Rome
endorsed the R2P language of the Outcome Statute is concerned with individual criminal liabili-
Document. Resolution 1674 on the protection of ty rather than state responsibility, its provisions
civilians “reaffirms” the provisions of paragraphs (and their elaboration in the Elements of Crimes
138 and 139 (S/RES/1674, April 28, 2006, para- provided for under Article 9) are generally seen as
graph 4) and Resolution 1706 on the situation in reflecting the current state of international law.
Darfur recalls resolution 1674 in that respect 21
While only states parties to the Rome Statute are
(S/RES/1706, August 31, 2006, preamble). bound to cooperate with the ICC, all states are
12
See the Centre’s website at http://r2pasiapacific bound to cooperate with the two specialized tri-
.org/documents. bunals for the former Yugoslavia and for Rwanda
13
http://globalr2p.org/related.html. established by Security Council resolutions.
14
http://www.vatican.va/holy_father/benedict 22
Any potential responsibility of the United Nations
_xvi/speeches/2008/april/documents/ hf_ben- itself under the evolving concept of R2P is beyond
xvi_spe_20080418_un-visit_en.html. the scope of this paper.
15
See, for example, his speeches to the Center for 23
Meaning that they are accepted by the international
Strategic and International Studies in Washington, community as a whole and can only be changed
DC, on January 16, 2007, and to the Royal through the evolution of a contradictory norm of
Institute of International Affairs in London on July equal strength.
11, 2007, as well as his annual address to the 24
On the commission’s recommendation, the UN
General Assembly of September 25, 2007 (UN doc- General Assembly took note of the Draft Articles,
uments SG/SM/10842, SG/SM/11094, and commended them to governments, and annexed
SG/SM/11182, respectively). them in Resolution 56/83 of December 12, 2001.
16
Berlin Address, July 15, 2008, op. cit. This author, In Resolution 59/35 of December 2, 2004, the
as Special Adviser to the Secretary-General, has been General Assembly again noted and commended the
asked to take the lead in developing the conceptual, Draft Articles, and in a third resolution on
institutional, and political dimensions of R2P. December 6, 2007, Resolution 62/61, the General
17
Rachel A. Davis, then serving as an Associate at the Assembly decided to examine the development of a
International Peace Institute, prepared the initial convention or other appropriate action on the basis
draft of this subsection. of the Draft Articles.
18
The Convention on the Prevention and Punishment 25
James Crawford, The International Law
of the Crime of Genocide, January 12, 1951, 78 Commission’s Articles on State Responsibility:
UNTS 277, requires States Parties to prevent and Introduction, Text and Commentaries, Cambridge
punish genocide (Article 1), as well as conspiracy, University Press, Cambridge, 2002, page 249.
incitement, attempt to commit, and complicity in 26
Berlin Address, July 15, 2008.
genocide (Article 3). The prohibition against geno- 27
Allan Rock and Lloyd Axworthy, “Responsibility
cide is also part of customary international law: to Protect? Yes,” The Globe and Mail, May 9,
Reservations to the Convention on the Prevention 2008; Ivo Daalder and Paul Stares, “The UN Can
and Punishment of the Crime of Genocide, Save Burma,” The Boston Globe, May 13, 2008;
Advisory Opinion, International Court of Justice and “The UN and Humanitarian Intervention to
Reports 1951, page 93; Case Concerning the Protect Sovereignty, or to Protect Lives?” The
Application of the Convention on the Prevention Economist, May 15, 2008.
and Punishment of the Crime of Genocide (Bosnia 28
Edward C. Luck, briefing on “International
and Herzegovina v Serbia and Montenegro), Disaster Assistance: Policy Options,” Subcommittee
Judgment, International Court of Justice, February on International Development, Foreign Assistance,
26, 2007, paragraph 161. With respect to war Economic Affairs and International Environmental
crimes, all states are now parties to the four Geneva Protection, Committee on Foreign Relations,
Conventions of 1949 and their provisions are bind- United States Senate, June 17, 2008.
ing as both treaty law and customary international 29
The first draft of this subsection was prepared by
law, see Legality of the Threat or Use of Nuclear Rachel A. Davis when she served as an Associate at
Weapons, Advisory Opinion, International Court of the International Peace Institute.
Justice, July 8, 1996, paragraphs 79 and 82. 30
The report is compiled quarterly by the
19
See, for example, the recent judgment of the IASC Sub-Working Group on Preparedness
International Court of Justice on the implications and Contingency Planning. It draws atten-
of the Genocide Convention for states: Case tion to situations where a change in the
Concerning the Application of the Convention on level or nature of humanitarian assistance is
the Prevention and Punishment of the Crime of likely over the next 3-4 months, whether
Genocide (Bosnia and Herzegovina v Serbia and because of an emerging humanitarian crisis
Montenegro), Judgment, International Court of or a deteriorating one.31
The Monitoring and Reporting Mechanism was The Stanley Foundation 11
established by Security Council Resolution 1612,
The Stanley Foundation is a nonpartisan, private
UN Doc. S/RES/1612 (2005), July 26, 2005.
32
For example, the Framework Team relies on
operating foundation that seeks a secure peace
requests from line departments and from individual with freedom and justice, built on world citizen-
UN country teams (or [Resident Coordinator] ship and effective global governance. It brings
RCs/HCs [Humanitarian Coordinator] where rele- fresh voices and original ideas to debates on glob-
vant), rather than systematic country assessments. al and regional problems. The foundation advo-
33
The Monitoring and Reviewing Mechanism, for cates principled multilateralism—an approach
instance, deals only with countries identified in the that emphasizes working respectfully across dif-
two Annexes to the Secretary-General’s annual ferences to create fair, just, and lasting solutions.
report to the Security Council on children in
armed conflict.
The Stanley Foundation’s work recognizes the
34
UN Doc. S/RES/1820 (2008), June 19, 2008.
35
The following discussion draws on Prevention of
essential roles of the policy community, media
Genocide and Mass Atrocities and the professionals, and the involved public in building
Responsibility to Protect: Challenges for the UN sustainable peace. Its work aims to connect peo-
and the International Community in the 21st ple from different backgrounds, often producing
Century, Report of a Policy Roundtable, clarifying insights and innovative solutions.
Stellenbosch, South Africa, December 13-15,
2007, International Peace Institute, New York, The foundation frequently collaborates with
June 2008. other organizations. It does not make grants.
36
See Victoria K. Holt and Tobias C. Berkman, The
Impossible Mandate? Military Preparedness, the
Stanley Foundation reports, publications, pro-
Responsibility to Protect and Modern Peace
Operations, Henry L. Stimson Center, Washington,
grams, and a wealth of other information are
DC, September 2006. available on the Web at www.stanleyfoundation.org.
37
See Stellenbosch Policy Roundtable report, op. cit.
38
UN Doc. A/61/630, Annex. See also Meeting Note: The Stanley Foundation encourages use of this
The AU-UN Ten-Year Capacity Building report for educational purposes. Any part of the
Programme: Towards a Broader Understanding of material may be duplicated with proper acknowl-
AU-UN Cooperation, International Peace Institute, edgment. Additional copies are available. This report
New York, forthcoming 2008. is available at http://reports.stanleyfoundation.org.
39
Berlin Address, July 15, 2008, op. cit.
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