The Role of the Human Rights Council in Implementing the Responsibility to Protect

Opening Presentation by Professor the Hon Gareth Evans, to Human Rights Council Side Event sponsored by Australia, Hungary, Nigeria, Thailand and Uruguay, Palais des Nations, Geneva, 19 June 2012

I am privileged to have been asked to moderate this important side event sponsored by Australia, Hungary, Nigeria, Thailand and Uruguay on the role of the Human Rights Council in the practical implementation of the Responsibility to Protect.   My task is not to pre-empt the detailed discussion which will follow, led by our distinguished cross-regional panel, but to set the context for it.

Of all the human rights issues the Council has to address, I think we would agree that the ones that most offend, and challenge, every precept of our common humanity are the mass atrocity crimes, genocide, ethnic cleansing, crimes against humanity and large-scale war crimes: those catastrophic human rights violations where men women and children are murdered, tortured, raped, starved or forcibly expelled for no other reason than their race, ethnicity, religion, nationality, caste, class or ideology.

It is important to remind ourselves  just how little international consensus there has been, not only over the centuries but over recent decades, about how to react to these cases. Even after the horrors of the Holocaust and all the many developments in international human rights law and international humanitarian law that followed World War II, when it came to reacting to reacting to cases like  Cambodia, East Pakistan, and Uganda  in the 1970 and ‘80s,  and  Rwanda, Bosnia and Kosovo in the ‘90s, the world was in almost total disarray.

The only real debate in the 90s was about ‘humanitarian intervention’: the so-called ‘right to intervene’ militarily. Hardly anyone talked about prevention.  The options were to ‘send in the marines’ or do nothing. The global North often rallied to that cry, but the global South was understandably deeply reluctant – after all its unhappy historical experience – to accept the idea that big guys had the right to throw their weight around in this way. So we had all the division and inaction and despair that we can all remember.

It was to find a way through this consensus-free zone that the concept of the responsibility to protect (R2P) was born  – initiated in the 2001  report of the ICISS Commission which I co-chaired with Mohammed Sahnoun, and endorsed by the UN General Assembly sitting at head of state and government level at the 2005 World Summit.
There were, and remain, crucial differences between R2P and the ‘right of humanitarian intervention’, and it is a fundamental mistake to maintain, as some still do, that R2P is no more than ‘old humanitarian intervention wine in a new bottle’.  In particular:

- R2P is primarily about prevention, whereas humanitarian intervention is only about reaction;

- R2P is about a whole continuum of reactive responses – from diplomatic persuasion, to pressure, to non-military measures like sanctions and International Criminal Court process, and only in extreme, exceptional and last resort cases military action, whereas humanitarian intervention is only about military reaction; and

- R2P is about a wide range of actors, whereas humanitarian intervention focuses only on the role of those capable of applying coercive military force.

More specifically, R2P involves three distinct levels of responsibility:

- The primary responsibility is that of the sovereign state itself to its own people one that is absolute, unconditional, and continuing  – not to perpetrate or allow atrocity crimes on its territory (‘Pillar I’).

- The second responsibility is that of others in the international community  – including other states and intergovernmental organisations like the Human Rights Council  – to assist states to discharge that primary responsibility  (‘Pillar II’).

- The third responsibility is that of others – if prevention fails, and a state is manifestly failing to protect its own people – to  then provide that protection by (in High Commissioner Navi Pillay’s words ‘every means prescribed – and circumscribed  –  by the United Nations Charter’ (‘Pillar III’}

Since 2005, there has been a long period of debate about the meaning, scope and limits of R2P, in a variety of contexts.  But what we can now say, following the major debates in the General Assembly in 2009, 2010 and 2011, is that it has won a remarkable degree of acceptance in principle. Secretary General Ban Ki-Moon was not exaggerating when he said in September last year, ‘Our debates are about how, not whether to implement the Responsibility to Protect. No government questions the principle’.

Of course we have to acknowledge that some of the debate about how to implement R2P is still very fierce and divisive. From the high point we reached in the Security Council in February and March last year – when there was real consensus both about the steps that had to be taken to stop atrocity crimes that were happening in Libya and feared likely to happen on an even bigger scale  – we have, in relation to the even worse human rights situation in Syria, reached the low point of paralysis in the Council, even on adopting non-military measures.

We have to frankly recognize that there has been some infection of the whole R2P concept by the perception, accurate or otherwise, that the civilian protection mandate granted by the Council was manifestly exceeded in the actual conduct of the NATO-led intervention.

We do need to debate, as an international community, why that consensus fell away:  the justification or otherwise of that perception, and what we should do about it. My own view, for what it’s worth, is that our Brazilian colleagues have made a major contribution to that debate with their advocacy of a new concept of ‘Responsibility While Protecting’ (RWP).  The idea is not to throw out the whole R2P baby with the bathwater, but to recognize that, if we are to be able to get consensus again about these really hard cases, there does need to be a fundamental change in the way the Security Council goes about the business of debating and then subsequently implementing such mandates – ¬ in particular by allowing serious continuing debate on their scope and limits.

But this is not the debate we want to have here in Geneva today. It is one for New York – in the General Assembly debate coming up soon on Pillar III –  and  in the Security Council.  I hope that the starting point of our debate here today will be recognition of the reality that if one is having a debate about Pillar III at all in a particular case, it is because prevention has failed.  Our starting point should be to acknowledge that the smartest possible thing the international community should be doing is to focus on the crucial preventive foundations  in Pillars I and II, and make these work.

In particular we want to focus today on the huge value–adding preventive role the Human Rights Council can play, in all the ways the High Commissioner spelt out in her welcoming message, and the speakers which follow will develop:  in institution building, technical assistance, early warning capacity building, best practice  advice, and above all relentless attention to the kind of human rights warning signs, which if we heed and respond to them effectively, will make those tough debates about Libya and Syria irrelevant.

R2P has been a remarkable normative achievement.  It has changed the way we think and act. Even if there is disagreement about how precisely to react in particular hard cases, I don't think anyone these days really believes these catastrophes are no one else’s business. No-one wants a return to the bad old days of indifference, inaction and division.

But if we want to absolutely guarantee that there will not be such a return, we are going have to work much harder and more effectively than we have so far to consolidate the preventive foundations of R2P. That’s what todays discussion is about, and I hope and expect that our deliberations will be productive.