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The present report responds to one of the cardinal challenges of our time, as posed in paragraphs 138 and 139 of the 2005 World Summit Outcome: operationalizing the responsibility to protect (widely referred to as “RtoP” or “R2P” in English). The Heads of State and Government unanimously affirmed at the Summit that “each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity”. They agreed, as well, that the international community should assist States in exercising that responsibility and in building their protection capacities. When a State nevertheless was “manifestly failing” to protect its population from the four specified crimes and violations, they confirmed that the international community was prepared to take collective action in a “timely and decisive manner” through the Security Council and in accordance with the Charter of the United Nations. As the present report underscores, the best way to discourage States or groups of States from misusing the responsibility to protect for inappropriate purposes would be to develop fully the United Nations strategy, standards, processes, tools and practices for the responsibility to protect.
This mandate and its historical, legal and political context are addressed in section I of the present report.
A three-pillar strategy is then outlined for advancing the agenda mandated by the Heads of State and Government at the Summit, as follows:
The way forward is addressed in section V. In particular, five points are set out in paragraph 71 that the General Assembly may wish to consider as part of its “continuing consideration” mandate under paragraph 139 of the Summit Outcome. Some preliminary ideas on early warning and assessment, as called for in paragraph 138 of the Summit Outcome, are set out in the annex.
Policy ideas that were proposed during the consultation process and that may merit further consideration by Member States over time appear in bold type, although the Secretary-General does not request the General Assembly to take specific action on them at this point.
1. The mandate for the present report derives from the following three paragraphs of the 2005 World Summit Outcome:
“139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and app ropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.
“140. We fully support the mission of the Special Adviser of the Secretary-General on the Prevention of Genocide.”
2. Based on existing international law, agreed at the highest level and endorsed by both the General Assembly and the Security Council, the provisions of paragraphs 138 and 139 of the Summit Outcome define the authoritative framework within which Member States, regional arrangements and the United Nations system and its partners can seek to give a doctrinal, policy and institutional life to the responsibility to protect (widely referred to as “RtoP” or “R2P” in English). The task ahead is not to reinterpret or renegotiate the conclusions of the World Summit but to find ways of implementing its decisions in a fully faithful and consistent manner. The present report, in offering some initial thoughts in that regard, aims to contribute to a continuing dialogue among Member States, with support from the United Nations Secretariat, on the responsibility to protect.
3. It should be underscored that the provisions of paragraphs 138 and 139 of the Summit Outcome are firmly anchored in well-established principles of international law. Under conventional and customary international law, States have obligations to prevent and punish genocide, war crimes and crimes against humanity. Ethnic cleansing is not a crime in its own right under international law, but acts of ethnic cleansing may constitute one of the other three crimes. The Summit’s enunciation of the responsibility to protect was not intended to detract in any way from the much broader range of obligations existing under international humanitarian law, international human rights law, refugee law and international criminal law. It should also be emphasized that actions under paragraphs 138 and 139 of the Summit Outcome are to be undertaken only in conformity with the provisions, purposes and principles of the Charter of the United Nations. In that regard, the responsibility to protect does not alter, indeed it reinforces, the legal obligations of Member States to refrain from the use of force except in conformity with the Charter.
4. The 2005 World Summit was one of the largest gatherings of Heads of State and Government in history. As expected, there were intense and contentious deliberations on a number of issues, including on the responsibility to protect. On some important issues, such as disarmament and the proliferation of weapons of mass destruction, it proved impossible to find consensus language. It is therefore a tribute both to the determination and foresight of the assembled world leaders and to their shared understanding of the urgency of the issue that they were able to agree on such detailed provisions regarding the responsibility to protect. Their determination to move the responsibility to protect from promise to practice reflects both painful historical lessons and the evolution of legal standards and political imperatives.
5. The twentieth century was marred by the Holocaust, the killing fields of Cambodia, the genocide in Rwanda and the mass killings in Srebrenica, the latter two under the watch of the Security Council and United Nations peacekeepers. Genocide, war crimes, ethnic cleansing and crimes against humanity: the brutal legacy of the twentieth century speaks bitterly and graphically of the profound failure of individual States to live up to their most basic and compelling responsibilities, as well as the collective inadequacies of international institutions. Those tragic events led my distinguished predecessor, Kofi Annan, and other world leaders to ask whether the United Nations and other international institutions should be exclusively focused on the security of States without regard to the safety of the people within them. Could sovereignty, the essential building block of the nation- State era and of the United Nations itself, they queried, be misused as a shield behind which mass violence could be inflicted on populations with impunity? How deeply and irreparably had the legitimacy and credibility of the United Nations and its partners been damaged by such revelations? Could we not find the will and the capacity in the new century to do better?
6. Before responding, we should note that the worst human tragedies of the past century were not confined to any particular part of the world. They occurred in the North and in the South, in poor, medium-income and relatively affluent countries. Sometimes they were linked to ongoing conflicts but quite often — including in some of the worst cases — they were not. In retrospect, three factors stand out. First, in each case there were warning signs. Violence of this magnitude takes planning and preparation, as well as a contributing political, social and economic context. Second, the signals of trouble ahead were, time and again, ignored, set aside or minimized by high-level national and international decision makers with competing political agendas. Third, at times the United Nations — its intergovernmental organs and its Secretariat — failed to do its part. Citing a “lack of resources and political commitment” (see S/1999/1257, enclosure, sect. I), the Independent Inquiry into the actions of the United Nations during the 1994 genocide in Rwanda, commissioned by then Secretary-General Annan, concluded in its report that “the United Nat ions failed the people of Rwanda during the genocide in 1994” (see S/1999/1257, enclosure, sect. III.18). The report of the Secretary-General on the fall of Srebrenica, while also underscoring “the gulf between mandate and means”, went on to question “the pervasive ambivalence within the United Nations regarding the role of force in the pursuit of peace” and “an institutional ideology of impartiality even when confronted with attempted genocide” (see A/54/549, para. 505). A prime lesson of Srebrenica, the Secretary-General noted, was that “the United Nations global commitment to ending conflict does not preclude moral judgments, but makes them necessary” (see A/54/549, para. 506). Nine years after those sobering reports, many of their institutional recommendations, including on early warning, analysis and training, have not been fully implemented, despite efforts to improve the prevention capacities of the Organization. The United Nations and its Member States remain underprepared to meet their most fundamental prevention and protection responsibilities. We can, and must, do better. Humanity expects it and history demands it.
7. Part of the problem has been conceptual and doctrinal: how we understand the issue and the policy alternatives. Two distinct approaches emerged during the final years of the twentieth century. Humanitarian intervention posed a false choice between two extremes: either standing by in the face of mounting civilian deaths or deploying coercive military force to protect the vulnerable and threatened populations. Member States have been understandably reluctant to choose between those unpalatable alternatives. Meanwhile, Francis Deng, at that time the Representative of the Secretary-General on internally displaced persons, and his colleagues had been refining a conceptually distinct approach centred on the notion of “sovereignty as responsibility”.1 They underscored that sovereignty entailed enduring obligations towards one’s people, as well as certain international privileges. The State, by fulfilling fundamental protection obligations and respecting core human rights, would have far less reason to be concerned about unwelcome intervention from abroad.
8. 8. Neither concerns about sovereignty nor the understanding that sovereignty implies responsibility are confined to one part of the world.2 The evolution of thinking and practice in Africa in that regard has been especially impressive. While the Organization of African Unity emphasized non-intervention, its successor, the African Union, has stressed non-indifference. In 2000, five years before the 2005 World Summit endorsed the responsibility to protect, the Constitutive Act of the African Union provided, in article 4 (h), for “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect to grave circumstances, namely: war crimes, genocide, and crimes against humanity”. It made a clear distinction between Member States, which were not to interfere “in the internal affairs of another” (article 4 (g)), and the Union, which could do so in response to the three “grave circumstances” noted above. As concluded by the Independent Inquiry into the actions of the United Nations during the 1994 Rwanda genocide (see S/1999/1257, enclosure, sect. IV.1), the Convention on the Prevention and Punishment of the Crime of Genocide had long since imposed “the responsibility to act”.3
9. Concerns about how to respond to such conscience-shocking events, and better yet to prevent them in the first place, were not confined to Africa or the global South. In 2000, Canada convened an independent International Commission on Intervention and State Sovereignty, co-chaired by Gareth Evans of Australia and Mohamed Sahnoun of Algeria. According to the Commission, “external military intervention for humanitarian protection purposes has been controversial both when it has happened — as in Somalia, Bosnia and Herzegovina and Kosovo — and when it has failed to happen, as in Rwanda”.4 The geographically diverse Commission, however, came to understand that protection was neither primarily a military matter nor essentially a contest between State and individual sovereignty. Coining the phrase “responsibility to protect”, the Commission identified a responsibility to prevent, a responsibility to react and a responsibility to rebuild, posing a continuum of graduated policy instruments across that spectrum. Although it addressed the proper authority and rules for the use of force, the report of the Commission highlighted the advantages of prevention through encouraging States to meet their core protection responsibilities. A number of the Commission’s key recommendations were included in the conclusions of the High-level Panel on Threats, Challenges and Change convened in 2004 by then Secretary-General Kofi Annan (see A/59/565 and Corr.1) and in his subsequent report entitled “In larger freedom: towards development, security and human rights for all” (A/59/2005). These reports, in turn, provided material for consideration at the 2005 World Summit.
10. While the approach to the responsibility to protect described in the present report draws from the above-mentioned history in important ways, it has been defined by the provisions of paragraphs 138 and 139 of the Summit Outcome as follows:
(a) As the assembled Heads of State and Government made absolutely clear, the responsibility to protect is an ally of sovereignty, not an adversary. It grows from the positive and affirmative notion of sovereignty as responsibility, rather than from the narrower idea of humanitarian intervention. By helping States to meet their core protection responsibilities, the responsibility to protect seeks to strengthen sovereignty, not weaken it. It seeks to help States to succeed, not just to react when they fail;
(b) The responsibility to protect applies, until Member States decide otherwise, only to the four specified crimes and violations: genocide, war crimes, ethnic cleansing and crimes against humanity. To try to extend it to cover other calamities, such as HIV/AIDS, climate change or the response to natural disasters, would undermine the 2005 consensus and stretch the concept beyond recognition or operational utility;
(c) While the scope should be kept narrow, the response ought to be deep, employing the wide array of prevention and protection instruments available to Member States, the United Nations system, regional and subregional organizations and their civil society partners. To that end, in paragraph 138 of the Summit Outcome, States were called on to use “appropriate and necessary means” to prevent such crimes and their incitement, and the international community was called on to “encourage and help” States to exercise their responsibility and to “support the United Nations in establishing an early warning capability”. In paragraph 139 of the Summit Outcome, reference is made both to “appropriate diplomatic, humanitarian and peaceful means” under Chapters VI and VIII of the Charter and to “collective action” under Chapter VII. Our approach to the responsibility to protect should therefore be both narrow and deep;
(d) The Summit recognized that early warning and assessment was a necessary, though hardly sufficient, ingredient for successful preventive and protective action by Member States, through the United Nations. As asserted in paragraph 138 of the Summit Outcome, the international community should “support the United Nations in establishing an early warning capability”. This would require: (i) the timely flow to United Nations decision makers of accurate, authoritative, reliable and relevant information about the incitement, preparation or perpetration of the four specified crimes and violations; (ii) the capacity for the United Nations Secretariat to assess that information and to understand the patterns of events properly within the context of local conditions; and (iii) ready access to the office of the Secretary-General. Too often, the alarm bells were not sounded at all or they failed to command attention or spur effective action at senior political ranks, whether in the Secretariat or in intergovernmental bodies (see S/1999/1257 and A/54/549). But a pattern of false alarms or, worse, selective reporting could also damage the credibility of the Organization. It is therefore important that early warning and assessment be effected fairly, prudently and professionally, without political interference or double standards.
11. The provisions of paragraphs 138 and 139 of the Summit Outcome suggest that the responsibility to protect rests on the following three pillars:
The protection responsibilities of the State
(a) Pillar one is the enduring responsibility of the State to protect its populations, whether nationals or not, from genocide, war crimes, ethnic cleansing and crimes against humanity, and from their incitement. The latter, I would underscore, is critical to effective and timely prevention strategies. The declaration by the Heads of State and Government in paragraph 138 of the Summit Outcome that “we accept that responsibility and will act in accordance with it” is the bedrock of the responsibility to protect. That responsibility, they affirmed, lies first and foremost with the State. The responsibility derives both from the nature of State sovereignty and from the pre-existing and continuing legal obligations of States, not just from the relatively recent enunciation and acceptance of the responsibility to protect;
International assistance and capacity-building
(b) Pillar two is the commitment of the international community to assist States in meeting those obligations. It seeks to draw on the cooperation of Member States, regional and subregional arrangements, civil society and the private sector, as well as on the institutional strengths and comparative advantages of the United Nations system. Too often ignored by pundits and policymakers alike, pillar two is critical to forging a policy, procedure and practice that can be consistently applied and widely supported. Prevention, building on pillars one and two, is a key ingredient for a successful strategy for the responsibility to protect;
Timely and decisive response
(c) Pillar three is the responsibility of Member States to respond collectively in a timely and decisive manner when a State is manifestly failing to provide such protection. Though widely discussed, pillar three is generally understood too narrowly. As demonstrated by the successful bilateral, regional and global efforts to avoid further bloodshed in early 2008 following the disputed election in Kenya, if the international community acts early enough, the choice need not be a stark one between doing nothing or using force. A reasoned, calibrated and timely response could involve any of the broad range of tools available to the United Nations and its partners. These would include pacific measures under Chapter VI of the Charter, coercive ones under Chapter VII and/or collaboration with regional and subregional arrangements under Chapter VIII. The process of determining the best course of action, as well as of implementing it, must fully respect the provisions, principles and purposes of the Charter. In accordance with the Charter, measures under Chapter VII must be authorized by the Security Council. The General Assembly may exercise a range of related functions under Articles 10 to 14, as well as under the “Uniting for peace” process set out in its resolution 377 (V). Chapters VI and VIII specify a wide range of pacific measures that have traditionally been carried out either by intergovernmental organs or by the Secretary-General. Either way, the key to success lies in an early and flexible response, tailored to the specific needs of each situation.
12. If the three supporting pillars were of unequal length, the edifice of the responsibility to protect could become unstable, leaning precariously in one direction or another. Similarly, unless all three pillars are strong the edifice could implode and collapse. All three must be ready to be utilized at any point, as there is no set sequence for moving from one to another, especially in a strategy of early and flexible response. With these caveats in mind, some examples of policies and practices that are contributing, or could contribute, to meeting pillars one, two and three are set out in sections II to IV below. The way forward is considered in section V. In particular, five points are set out in paragraph 71 that the General Assembly may wish to consider in its review of the overall strategy set out in the report. Some initial ideas on early warning and assessment are set out in the annex. Later in 2009, I will submit to the Assembly modest proposals for implementing improvements in the early warning capability of the Organization, as called for in paragraph 138 of the Summit Outcome.
II. Pillar one
13. The first three sentences of paragraph 138 of the Summit Outcome capture unambiguously the underlying principle of the responsibility to protect:
“Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it.”
This solemn pledge, undertaken at the Summit level and subsequently adopted by the General Assembly and reaffirmed by the Security Council, is remarkable for its clarity, simplicity, and lack of qualifications or caveats. The peoples of the world fully expect each and every Member State to live up to this commitment at all times because this first pillar of the responsibility to protect, which rests on long-standing obligations under international law, is absolutely essential if the responsibility to protect is to move from the realm of rhetoric to the realm of doctrine, policy and action. When a State is unable to fully meet this responsibility, because of capacity deficits or lack of territorial control, the international community should be prepared to support and assist the State in meeting this core responsibility as needed under pillar two (see sect. III below). The State, however, remains the bedrock of the responsibility to protect, the purpose of which is to build responsible sovereignty, not to undermine it.
14. The responsibility to protect, first and foremost, is a matter of State responsibility, because prevention begins at home and the protection of populations is a defining attribute of sovereignty and statehood in the twenty-first century. Through the wording of paragraph 138 of the Summit Outcome, the assembled Heads of State and Government confirmed these two fundamental truths. They recognized that the international community can at best play a supplemental role. In this area of policy, as in so many others, the United Nations depends on the strength and determination of its sovereign Member States. In an increasingly interdependent and globalized world, they, in turn, need to move from identity-based politics to the effective management, even encouragement, of diversity through the principle of non-discrimination and the equal enjoyment of rights. Responsible sovereignty is based on the politics of inclusion, not exclusion. This entails the building of institutions, capacities and practices for the constructive management of the tensions so often associated with the uneven growth or rapidly changing circumstances that appear to benefit some groups more than others.
15. These principles hold across political and economic systems because this is a matter of values and practice, regardless of a country’s level of economic development. No single part of the world has a monopoly on good ideas or successful practices in this regard. More research and analysis are needed on why one society plunges into mass violence while its neighbours remain relatively stable, and on why it has been so difficult to stem widespread and systematic sexual violence in some places. But it is evident that States that handle their internal diversity well, foster respect among disparate groups, and have effective mechanisms for handling domestic disputes and protecting the rights of women, youth and minorities are unlikely to follow such a destructive path.
16. Respect for human rights, therefore, is an essential element of responsible sovereignty. Having marked the sixtieth anniversary of the Universal Declaration of Human Rights5 and of the Convention on the Prevention and Punishment of the Crime of Genocide, Member States may wish to review what more they could do, individually and collectively, to implement their obligations under human rights law and to cooperate with the United Nations human rights mechanisms. States could help to advance the prevention and protection goals relating to the responsibility to protect by working domestically and internationally to advance the broad and vital mandate of the United Nations High Commissioner for Human Rights, as prescribed in General Assembly resolution 48/141 as well as those of the Human Rights Council, the special rapporteurs and the human rights treaty bodies.6 States could also assist the Human Rights Council in sharpening its focus as a forum for considering ways to encourage States to meet their obligations relating to the responsibility to protect and to monitor, on a universal and apolitical basis, their performance in this regard. To that end, the Council’s universal periodic review mechanism could be an important instrument for advancing human rights and, indirectly, goals relating to the responsibility to protect.
17. States should become parties to the relevant international instruments on human rights, international humanitarian law and refugee law, as well as to the Rome Statute of the International Criminal Court.7 But this is just a first step towards full implementation in practice. These core international standards need to be faithfully embodied in national legislation, so that the four specified crimes and violations and their incitement are criminalized under domestic law and practice. Different segments of society need to be afforded equal access to justice and to judicial redress for violations of their fundamental rights, as part of an overall effort to strengthen the rule of law. Criminal laws, rules and procedures should be designed to protect the vulnerable and the disenfranchised, while ensuring that impunity is not accepted either nationally or globally. Particular attention, in this regard, should be paid to preventing sexual and gender-based violence, prosecuting offenders, and implementing gender-responsive justice and security-sector reform measures. Those responsible for law enforcement and judicial processes should be trained in human rights, international humanitarian law and refugee law, as well as in the procedures governing the respective instruments. A lively civil society, an independent press and openness to international and domestic scrutiny can help to correct abuses of the justice system. They can also reduce the likelihood of crimes relating to the responsibility to protect being planned and carried out without a global outcry.
18. As noted above, the obligations of States that underpin pillar one are firmly embedded in pre-existing, treaty-based and customary international law. It is significant that these well-established international crimes and the obligation to punish their perpetrators are reflected in the provisions of the Rome Statute of the International Criminal Court. Focusing on individuals who commit or incite such egregious acts, including the leaders of States or armed groups, the Rome Statute seeks to develop mechanisms and processes for identifying, investigating and prosecuting those most directly responsible for crimes and violations relating to the responsibility to protect, among others. By seeking to end impunity, the International Criminal Court and the United Nations-assisted tribunals have added an essential tool for implementing the responsibility to protect, one that is already reinforcing efforts at dissuasion and deterrence.
19. States could do more, however, to sharpen the tools for ending impunity. According to the complementarity principle of the Rome Statute, national judicial processes are the first line of defence against impunity. To date, there are 108 States parties to the Rome Statute, but I would encourage additional States to become parties to the Statute and thus to strengthen one of the key instruments relating to the responsibility to protect. National authorities should do their best to assist the International Criminal Court and other international tribunals in locating and apprehending individuals, at whatever level, who are accused of committing or inciting crimes and violations relating to the responsibility to protect.
20. Moreover, if principles relating to the responsibility to protect are to take full effect and be sustainable, they must be integrated into each culture and society without hesitation or condition, as a reflection of not only global but also local values and standards. This should not be an impossible task since no community, society, or culture publicly and officially condones genocide, war crimes, ethnic cleansing or crimes against humanity as acceptable behaviour. On this principle, Member States are united. Although there have been lively debates about how best to implement the responsibility to protect, no Member State has argued against trying to curb abuses of such magnitude or against developing partnerships at the national, regional and global levels to achieve this.
21. Genocide and other crimes relating to the responsibility to protect do not just happen. They are, more often than not, the result of a deliberate and calculated political choice, and of the decisions and actions of political leaders who are all too ready to take advantage of existing social divisions and institutional failures. Events on the scale of the Holocaust, Cambodia in the 1970s and Rwanda in 1994 require planning, propaganda and the mobilization of substantial human and material resources. They are neither inevitable nor unavoidable. They require permissive conditions, both domestically and internationally. Even relatively stable, developed and progressive societies need to ask themselves whether they are vulnerable to such events; whether the seeds of intolerance, bigotry and exclusion could take root and grow into something horrific and self-destructive; and whether their social, economic and political systems have self-correcting mechanisms in place to discourage and derail such impulses. Candid self-reflection, searching dialogue among groups and institutions, both domestically and internationally, and periodic risk assessment are needed in both fragile and seemingly healthy societies in all regions of the world. We are all at risk if we believe it could not happen to us.
22. As part of the process of self-reflection, States can seek, and often have sought, technical assistance from the United Nations, their neighbours, regional organizations, specialized non-governmental organizations or independent experts on the crafting of legislation or the establishment of credible monitoring groups or independent national institutions to help oversee the implementation of relevant international human rights and humanitarian standards. The Office of the United Nations High Commissioner for Human Rights has made a sustained effort to introduce training programmes on human rights reporting, to nurture national human rights institutions and to encourage the independence of those institutions from Governments. Currently, over 150 national human rights institutions are operating around the world. State-to-State learning processes — often neighbours helping neighbours — have promoted the transfer of best/good practices, such as through the African Peer Review Mechanism under the New Partnership for Africa’s Development or through the standards established for gaining membership in the European Union. In those and similar arrangements in other regions, consideration should be given to introducing criteria relating to the responsibility to protect into peer review mechanisms.
23. Countries that have suffered massive crimes and violations are, understandably, eager to create barriers to their reoccurrence. We need to learn from their mistakes, as well as from the processes of reconciliation, healing and reconstruction that so often follow. We should also learn from countries that have not experienced such traumas, in part because they have developed mechanisms for identifying and managing emerging tensions before they lead to violence. Three examples of such capacities are the Ethnic Relations Commission in Guyana, the National Peace Council in Ghana, and the Political Parties Registration Commission and comprehensive security-sector reform in Sierra Leone.
24. Training, learning and education programmes can help States to help themselves. Since 1996, the International Committee of the Red Cross has established the Advisory Service on International Humanitarian Law, which among other things has encouraged the ratification of humanitarian conventions, facilitated State-to-State learning processes, assisted the incorporation of international humanitarian standards into national law, encouraged States to set up national mechanisms on international humanitarian law, and provided educational materials on these norms and conventions. For instance, working with the Arab League, it helped to draft an Arab model law, while it assisted Bosnia and Herzegovina in developing and implementing a national law on missing persons. Similarly, the International Federation of the Red Cross has conducted the Reducing Discrimination Initiative since 2001. Among its products have been guidelines for working with the Roma and other marginalized groups in Europe, assisting the most vulnerable populations in Nepal, and facilitating the rehabilitation and reintegration of children associated with armed groups in Sierra Leone, a society that has suffered horrendous crimes against humanity.
25. When aimed at critical actors in society, such as the police, soldiers, the judiciary and legislators, training can be an especially effective tool for prevention purposes. For instance, the Fund for Peace has held a series of training workshops in Uganda on its Conflict Assessment System Tool, designed to help identify early warning indicators, and the Fund expects to extend the workshops to the rest of East Africa. For its part, the Kenyan National Council of Churches has developed a monitoring and reporting system on intra-community violence in the Rift Valley and elsewhere. The Inter-Parliamentary Union and the United Nations Children’s Fund (UNICEF) have collaborated on the publication Child Protection: a Handbook for Parliamentarians , while the Office of the United Nations High Commissioner for Human Rights has an active publications programme across the human rights spectrum. UNICEF has also worked with a number of Governments, such as Colombia, the Philippines and the Sudan, to address how their judicial systems deal with children formerly associated with armed groups and accused of serious w ar crimes or other large-scale violations. In Colombia, strengthening the Office of the Ombudsman has helped to address child recruitment and demobilization, gender-based violence in conflict and sexual exploitation related to conflict. The armed forces of Uganda, following United Nations guidelines, have adopted a code of conduct banning the sexual exploitation of women and girls. During the period 2000-2007, the Economic Community of West African States and Save the Children (Sweden) conducted a comprehensive training programme on children’s rights and protection before, during and after conflict for the armed forces in the region. Similarly, the United Nations Development Fund for Women worked with the Rwandan Defence Force on training in gender issues and human rights while the Force was preparing its troops for participation in regional peace operations.
26. In all of the discussions of global, regional and national institutions, care should be taken not to lose sight of the individual victims and survivors of such crimes. They need to be supported and encouraged to tell their stories candidly and fully, without fear of retribution or stigmatization. In that regard, women’s non-governmental organizations have often played a critical role in engaging and assisting survivors of systematic sexual violence. They deserve our full support.
27. Similarly, one of the keys to preventing small crimes from becoming large ones, as well as to ending such affronts to human dignity altogether, is to foster individual responsibility. Even in the worst genocide, there are ordinary people who refuse to be complicit in the collective evil, who display the values, the independence and the will to say no to those who would plunge their societies into cauldrons of cruelty, injustice, hatred and violence. We need to do more to recognize their courage and to learn from their actions. States that have suffered such traumas, civil society and international organizations can facilitate the development of national and transnational networks of survivors, so that their stories and lessons can be more widely heard, thus helping to prevent their reoccurrence or repetition elsewhere.
III. Pillar two
28. Paragraph 138 of the Summit Outcome asserts that “the international community should, as appropriate, encourage and help States to exercise this [responsibility to protect] responsibility”. Paragraph 139 asserts that “we also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out”. These provisions suggest that this assistance could take one of four forms: (a) encouraging States to meet their responsibilities under pillar one (para. 138); (b) helping them to exercise this responsibility (para. 138); (c) helping them to build their capacity to protect (para. 139); and (d) assisting States “under stress before crises and conflicts break out” (para. 139). While the first form of assistance implies persuading States to do what they ought to do, the other three suggest mutual commitment and an active partnership between the international community and the State.
29. If the political leadership of the State is determined to commit crimes and violations relating to the responsibility to protect, then assistance measures under pillar two would be of little use and the international community would be better advised to begin assembling the capacity and will for a “timely and decisive” response, as stipulated under paragraph 139 of the Summit Outcome (see sect. IV below). However, when national political leadership is weak, divided or uncertain about how to proceed, lacks the capacity to protect its population effectively, or faces an armed opposition that is threatening or committing crimes and violations relating to the responsibility to protect, measures under pillar two could play a critical role in the international implementation of the responsibility to protect. In addition to persuasive measures and positive incentives, pillar two could also encompass military assistance to help beleaguered States deal with armed non-state actors threatening both the State and its population. These measures would supplement the policy tools under pillar one and complement those under pillar three because none of the pillars is designed to work in isolation from the others.
30. Encouraging States to meet their obligations relating to the responsibility to protect could entail confidential or public suasion, education, training and/or assistance. Among those well placed to contribute to such good offices and public diplomacy efforts are regional and subregional mechanisms, the United Nations High Commissioner for Human Rights, the United Nations High Commissioner for Refugees, the Emergency Relief Coordinator, the Special Adviser on the Prevention of Genocide, other special advisers, special representatives and envoys of the Secretary-General, and ranking officials of the United Nations, its development agencies and the Bretton Woods institutions. When these messages are reinforced by parallel and consistent Member State diplomacy, they will be more persuasive. Dialogue often achieves more than grandstanding, in part because it can provide parties with greater insight into each other’s motivations and intentions.
31. Credibility and consistency count in such situations. Over the years, there have been too many cases in which the public diplomacy of the Secretary-General has not been matched by the willingness of Member States and the Organization’s intergovernmental bodies to give concrete shape to either his promises or his warnings. There is a premium in such matters on candor and pragmatism all around, given that innocent lives and the reputation of the United Nations itself are on the line.
32. Those contemplating the incitement or perpetration of crimes and violations relating to the responsibility to protect need to be made to understand both the costs of pursuing that path and the potential benefits of seeking peaceful reconciliation and development instead. The contrast could not be starker. The costs to a society of engaging in serious crimes and violations relating to the responsibility to protect can be immense and long-lasting, and not only for its reputation. They can include lost foreign investment, capital flight, reductions in aid and tourism and, for some, losing a place at the table as a member of the international community in good standing. Development efforts can be set back for decades by such traumatic and divisive events. On the other hand, as discussed below, donors should be encouraged to support countries and programmes that seek to enhance the prevention and protection of populations from crimes and violations relating to the responsibility to protect. The difference between the two paths can amount to the choice between national potential preserved or destroyed.
33. Encouragement can also be expressed through dialogue, education and training on human rights and humanitarian standards and norms. For example, an innovative framework established by the Security Council in the context of its resolution 1612 (2005) has permitted high-level dialogue by the Special Representative of the Secretary-General for Children and Armed Conflict and UNICEF on child protection issues. This has led to the release of all children associated with armed groups in Côte d’Ivoire and to reductions in the use of children by parties to the conflicts in Southern Sudan and Sri Lanka. Similarly, the advocacy of the Office of the United Nations High Commissioner for Human Rights (OHCHR), as well as that of various special rapporteurs, has led to the establishment of truth commissions and other transitional justice and accountability mechanisms around the world. These have helped societies not only to address past human rights violations but also to elaborate national agendas for institutional reform. To encourage movement on stalled peace processes, the United Nations Development Programme (UNDP) has supported the efforts of the Woodrow Wilson Center to build leadership capacity in Burundi and the eastern Democratic Republic of the Congo.
34. In its resolutions 1612 (2005) and 1820 (2008), the Security Council underscored that rape and other forms of sexual violence could constitute war crimes, crimes against humanity or constitutive acts with respect to genocide. In its resolution 1820 (2008), the Council recognized that widespread and systematic sexual violence was a security problem that should be monitored by the Council. Systematic sexual violence, without a doubt, can be every bit as destructive to communities as more conventional weapons.
35. The United Nations and its partners have undertaken a range of efforts in recent years to help States exercise their responsibility to protect. With a field presence in some 50 countries, OHCHR has become a global resource for assisting countries in observing their human rights obligations, as well as for monitoring, advocacy and education. Working with Governments and national non-governmental organizations, OHCHR representatives work to strengthen protection capacities, alleviate social tensions and contribute to conflict prevention. The analysis and recommendations produced by the country missions of the special procedures of the Human Rights Council can provide a basis for capacity-building, the alleviation of conflicts, and the protection of actual and potential victims of serious human rights violations. Less recognized in this context, the work of the Office of the United Nations High Commissioner for Refugees in obtaining grants of asylum and protecting refugees has served numerous potential victims of crimes and violations relating to the responsibility to protect.
36. A United Nations presence has been critical to protecting children in a number of post-conflict situations, such as in northern Uganda, Eastern and Central Africa and in parts of the Sudan. More broadly, child protection issues have gained unprecedented attention through frequent visits by the Special Representative of the Secretary-General for Children and Armed Conflict and open debates in the Security Council on the annual report of the Secretary-General, including its country-specific annexes. The United Nations presence has also helped to incorporate provisions to combat gender-based violence into national penal codes and judicial processes, including in Timor-Leste, Sierra Leone and Kosovo.
37. Beyond the work of the United Nations, the innovative steps taken by some regional or subregional bodies might well be worth emulating in other parts of the world. In 1992, as violence flared in the Balkans, the Organization for Security and Cooperation in Europe established the post of High Commissioner on National Minorities to identify and seek early resolution of ethnic tensions before they could escalate. Described as “an instrument of conflict prevention at the earliest possible stage”, the High Commissioner acts independently, impartially and confidentially. The continuing demand for the services of the High Commissioner by States in the more volatile parts of the region suggests the utility of the methodology and the potential value of its consideration by regional and subregional bodies in other areas of the world. In West Africa, the early warning and early response system of the 15-member Economic Community of West African States reflects a partnership between the intergovernmental body and a civil society network with an emphasis on human security. These two efforts suggest both the potential value of region-to-region learning processes, perhaps facilitated by the United Nations or external donors, and the importance of adaptation to local conditions and cultures.
38. As demonstrated by special political missions, such as in Guinea-Bissau and the Central African Republic, it takes considerable skill, experience, local knowledge and courage to enter into a situation of growing ethnic tension with the aim of building cultural and political bridges, mediating differences, disseminating global values and helping to build durable local institutions, all in conditions of uncertain security. Clearly the world has underinvested in preventive capacities, which absorb only a fraction of the costs of the vital post-conflict peace operations of the United Nations. In that regard, helping to build the civilian capacities of regional and subregional organizations to prevent crimes and violations relating to the responsibility to protect could be a wise investment. A number of useful initiatives along these lines are being considered under the African Union-United Nations 10-year capacity-building programme.8
39. There is a common element in these diverse efforts to help States help themselves: they largely depend on civilian, not military, expertise and presence. In responding to situations relating to the responsibility to protect, police and civilian components may sometimes be particularly critical given the priority tasks of restoring order to, and rebuilding confidence in, societies undergoing domestic chaos and strife. In that regard, it should be stressed that it is often difficult to identify and mobilize sufficient numbers of police and civilian cadres with the skills and training required to deal with crimes relating to the responsibility to protect, just as it can be hard to find their military counterparts. There have been a host of proposals by Governments and civil society alike for creating a standing or standby rapid-response civilian and police capacity for such emergencies. I would encourage further creative thinking about such an option and will ensure its careful review by the relevant United Nations officials.
40. Undoubtedly, as has been said many times, the use of force should be considered a measure of last resort. With the host Government’s consent, however, military units have been employed either for a range of non-coercive purposes, such as prevention, protection, peacekeeping and disarmament, or to counter armed groups that seek both to overthrow the Government by violent means and to intimidate the civilian population through random and widespread violence. Non-state actors, as well as States, can commit egregious crimes relating to the responsibility to protect. When they do, collective international military assistance may be the surest way to support the State in meeting its obligations relating to the responsibility to protect and, in extreme cases, to restore its effective sovereignty. At such times, the early, targeted and restrained use of international military assets and armed forces may be able to save lives and bring a measure of stability so that diplomacy, domestic political processes, healing and reconciliation can have time and space to operate. Consent-based peacekeeping, of course, is a United Nations innovation and strength, whereas the Organization has undertaken more coercive military operations less frequently and with more mixed results. The same could be said for regional and subregional organizations.
41. The notion of preventive deployment was introduced into the United Nations lexicon in 1992 by then Secretary-General Boutros Boutros-Ghali. In his prescient report entitled “An agenda for peace: preventive diplomacy, peacemaking and peacekeeping” (A/47/277-S/24111), he noted that:
42. In Sierra Leone, the United Nations Mission in Sierra Leone had just started deploying when the forces of the Revolutionary United Front, which had committed particularly vicious and widespread international crimes, broke the peace agreement and mounted a large-scale attack against the population and the Mission. In 2000, with the consent of the Government, a modest British-led intervention force helped to protect Freetown, boost the Mission and restore stability to the beleaguered West African State. Similarly, in the second quarter of 2003, under Security Council resolution 1484 (2003), Operation Artemis, led by the European Union, helped the transition to a more robust mandate for the United Nations Organization Mission in the Democratic Republic of the Congo in Ituri province, an area known for the scale and ferocity of its human rights violations, particularly sexual violence. Each of the above-mentioned four deployments, in the former Yugoslav Republic of Macedonia, Burundi, Sierra Leone and the Democratic Republic of the Congo, predated the acceptance by the 2005 World Summit of the responsibility to pro tect. Yet they well illustrate the potential value of the consent-based deployment of an international military presence to help prevent the escalation of armed conflict. They also underscore the importance of the timely provision of adequate assets and resources by Member States when the United Nations is mandated to assist a country in fulfilling its responsibility to protect.
43. In States and regions where ethnic tensions run high and deep inequalities among groups persist, it is hard to envision sustainable economic and social development without addressing underlying fissures in the social and political fabric. It is equally difficult to imagine healing such fissures without dealing with the concomitant development deficits. Chronic underdevelopment does not, in and of itself, cause strains among different ethnic, religious or cultural communities. But it can exacerbate the competition for scarce resources and severely limit the capacity of the State, civil society, and regional and subregional organizations to resolve domestic tensions peacefully and fully. On balance, substantial increments in levels of general development assistance could well reduce the aggregate incidence of crimes and violations relating to the responsibility to protect, because some of the worst cases of mass domestic violence have occurred in very poor countries, where the poorest of the poor lack the capacity to resist (the Holocaust and the more recent atrocities in the Balkans, however, attest that poverty is not a necessary condition). Expanding development assistance to the “bottom billion” would undoubtedly have a net positive effect on preventing crimes and violations relating to the responsibility to protect if such assistance is targeted to give the poor and minority groups a stronger voice in their societies, enhances equality and social justice, raises their education levels and increases their opportunities for meaningful political participation. However, if additional assistance is distributed in a way that exacerbates, rather than narrows, differences in the status and living conditions of rival ethnic, religious or cultural communities within these societies, then the effect would be destabilizing and could fuel existing tensions and resentments. Aid programmes therefore need to be sensitive both to conflict and to the responsibility to protect.
44. What is most needed, from the perspective of the responsibility to protect, are assistance programmes that are carefully targeted to build specific capacities within societies that would make them less likely to travel the path to crimes relating to the responsibility to protect. More field-based research is needed to understand fully what works where and why. The United Nations and its Member States should encourage and support geographically broad-based research networks that seek to gain a better understanding, case by case, of why some States have taken one path and other States a different path. To strengthen pillar two, a cumulative process of country-to-country, region-to-region and agency-to-agency learning is needed on prevention, capacity-building and protection strategies in order to gain a keener and more fine-tuned sense of how various strategies, doctrines and practices have fared over the years. Policy, however, cannot wait until the knowledge base is perfected. Experience and common sense suggest that many of the elements of what is commonly accepted as good governance — the rule of law, a competent and independent judiciary, human rights, security sector reform, a robust civil society, an independent press and a political culture that favours tolerance, dialogue and mobility over the rigidities and injustices of identity politics — tend to serve objectives relating to the responsibility to protect as well.
45. In that regard, at least five capacities — drawn from the practice of development assistance and based on requests from Member States themselves — can be identified as critical:
(a) Conflict-sensitive development analysis . This involves building the capacity of national institutions to analyse emerging issues and tensions together, as part of development planning, so that the implementation of development programmes helps to ameliorate existing tensions rather than further inflaming them. Nigeria and Indonesia, for instance, have taken significant steps towards acquiring such capacities;
(b) Indigenous mediation capacity . This entails forming or strengthening credible institutions and processes, both traditional and modern and in both Government and civil society, that can help find internal solutions to disputes, promote reconciliation and mediate on specific matters. As noted above, institutions established by Guyana, Ghana and Sierra Leone, with assistance from UNDP, show promise in this regard;
(c) Consensus and dialogue . This requires building capacities for inclusive and participatory processes of dialogue, and providing neutral spaces and forums for addressing contentious issues through such dialogues. In Latin America in particular, Member States have established spaces for “democratic dialogue” as part of the process of governance;
(d) Local dispute resolution capacity . This involves building a peace infrastructure, at both the national and local levels, to address local disputes over land, resources, religion, ethnicity or leadership succession in a sustainable manner before they lead to conflict. Similar capacities helped ensure the successful transition to democracy of South Africa in the early 1990s. During the period of post-electoral violence in Kenya in early 2008, areas where such capacities had been developed, especially the arid regions of the north and the Coast province, did not witness the same levels of violence as other areas;
(e) Capacity to replicate capacity . Finally, the capacities defined above must be absorbed and rooted deeply in societies so that new generations of leaders will have the resources and skills to prevent the kinds of fissures and frustrations that can lead to crimes relating to the responsibility to protect. In that regard, Member States have increasingly requested assistance to develop conflict-resolution programmes in universities and public-service training academies, establish networks of mediators and develop nationwide school curricula so that young people will approach divisive issues differently in the future.
Within the United Nations system, a number of innovative systems have been put in place to better respond to the requests of Member States for assistance in building the five above-mentioned capacities. Among these initiatives are a joint programme of UNDP and the Department of Political Affairs on building national capacities for conflict prevention and the Inter-Agency Framework on Coordination for Preventive Action, which is an informal forum that allows United Nations entities to respond in an integrated manner to such requests from Member States.
46. As demonstrated time and again, an impartial and disciplined security sector is vital for lowering inter-group tensions and preventing widespread violence. Drawing on their own experience and technical support from bilateral partners and the United Nations system, Member States should continue to strengthen their security sectors so as to provide safe and stable conditions for all their populations, irrespective of identity. By forestalling costly disruptions, this would constitute a significant investment in the development process, in addition to fulfilling the responsibility to protect.
47. The rule of law is fundamental to preventing the perpetration of crimes relating to the responsibility to protect. The United Nations system, including through the engagement of donor countries, should increase the rule of law assistance it offers to Member States. The goals should be to ensure equal access to justice and to improve judicial, prosecutorial, penal and law enforcement services for all. Such steps would make it more likely that disputes within society could be resolved through legal, rather than violent, means. Donor countries could address the responsibility to protect and human rights considerations in existing assistance programmes, as appropriate, and create new assistance programmes relating to the responsibility to protect, to the extent possible. In that regard, it should be understood that conditions, circumstances and needs vary from country to country and assistance programmes should be designed in close consultation with the recipient Government and civil society. The United Nations and regional organizations should undertake region-to-region learning and lessons-learned processes concerning assistance relating to the responsibility to protect, given how new this field is.
48. Post-trauma peacebuilding offers a critical point for assistance relating to the responsibility to protect. The surest predictor of genocide is past genocide. The work of the Peacebuilding Commission comes at a critical stage in a society’s evolution, one where the international community has the best opportunity of making a positive difference. Possibilities should be explored for greater involvement of the Peacebuilding Commission in helping States to fulfil their obligations relating to the responsibility to protect. The Peacebuilding Fund, moreover, could provide a flexible, if modest, source for some funding in emergency situations.
IV. Pillar three
49. As the first two sentences of paragraph 139 of the Summit Outcome make unambiguously clear, pillar three is integral to the strategy for fulfilling the responsibility to protect that was agreed upon by the assembled Heads of State and Government. According to the opening sentence, “the international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity”. The wording suggests that the intent is for this to be an ongoing, generic responsibility that employs the kind of peaceful, pacific measures specified in Chapter VI and in Article 52, Chapter VIII. The second sentence of paragraph 139 underscores that a wider range of collective actions, either peaceful or non-peaceful, could be invoked by the international community if two conditions are met: (a) “should peaceful means be inadequate”,9 and (b) “national authorities are manifestly failing to protect their populations” from the four specified crimes and violations. In those two cases, paragraph 139 affirms that “we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate”. As I noted in a speech delivered in Berlin, Germany, on 15 July 2008 (see press release SG/SM/11701), the wording of this sentence suggests the need for an early and flexible response in such cases, one both tailored to the circumstances of the situation and fully in accord with the provisions of the Charter.
50.50. In dealing with the diverse circumstances in which crimes and violations relating to the responsibility to protect are planned, incited and/or committed, there is no room for a rigidly sequenced strategy or for tightly defined “triggers” for action. The threshold for prevention, capacity-building or rebuilding efforts under pillar two would certainly be lower than the threshold for a response under pillar three, namely that “national authorities are manifestly failing to protect their populations” (para. 139 of the Summit Outcome). Similarly, under pillar three, the threshold for Chapter VI measures would be lower than the threshold for enforcement action under Chapter VII, which can only be authorized at the intergovernmental level. The more robust the response, the higher the standard for authorization. In a rapidly unfolding emergency situation, the United Nations, regional, subregional and national decision makers must remain focused on saving lives through “timely and decisive” action (para. 139 of the Summit Outcome), not on following arbitrary, sequential or graduated policy ladders that prize procedure over substance and process over results.
51. The United Nations has a strong preference for dialogue and peaceful persuasion. Therefore, pillar three encompasses, in addition to more robust steps, a wide range of non-coercive and non-violent response measures under Chapters VI and VIII of the Charter. Under the Charter, many of these can be undertaken by the Secretary-General or by regional or subregional arrangements, without the explicit authorization of the Security Council. This was the case in Kenya in early 2008, when for the first time both regional actors and the United Nations viewed the crisis in part from the perspective of the responsibility to protect.
52. Intergovernmental bodies can play pivotal roles in conducting on-site investigations and fact-finding missions. Under Article 34 of the Charter, the Security Council “may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuation of the dispute or situation is likely to endanger the maintenance of international peace and security”. Subject to the provisions of Article 12 of the Charter, the General Assembly can avail itself of similar opportunities in some cases, under the provisions of Articles 11, 13, and 14. Either the Assembly or the Council, for instance, may appoint a fact-finding mission to investigate and report on alleged violations of international law, as the latter did in the case of Darfur. The Human Rights Council may deploy a fact-finding mission, appoint a special rapporteur to advise on the situation or refer the situation to existing special procedures. Parallel instruments and possibilities may exist in a number of regions and subregions.
53. Investigation, of course, is not a substitute for “timely and decisive”
protective action (para. 139 of the Summit Outcome) but rather should be seen as an initial step towards it. If undertaken early in a crisis, at the first sign that a State is failing to meet its obligations relating to the responsibility to protect, such on-site missions can also provide opportunities for delivering messages directly to key decision makers on behalf of the larger international community, for example, by trying to dissuade them from destructive courses of action that could make them subject to prosecution by the International Criminal Court or ad hoc tribunals. Such candid messages have been voiced effectively by the United Nations High Commissioner for Human Rights, the United Nations High Commissioner for Refugees and the Special Adviser on the Prevention of Genocide, among others, as well as by the office of the Secretary-General. In recent years, the international criminal justice system has made important strides towards ensuring accountability and ending impunity, but more could be done to address perceptions of selectivity and to ensure its global reach.
54. It is now well established in international law and practice that sovereignty does not bestow impunity on those who organize, incite or commit crimes relating to the responsibility to protect. In paragraph 138 of the Summit Outcome, States affirmed their responsibility to prevent the incitement of the four specified crimes and violations. When a State manifestly fails to prevent such incitement, the international community should remind the authorities of this obligation and that such acts could be referred to the International Criminal Court, under the Rome Statute. As noted above, in cases of imminent or unfolding violence of this magnitude against populations, this message may be more effectively and persuasively delivered in person than from afar. Until recently, however, the practice at the United Nations and in many capitals had too often been to ignore or minimize the signs of looming mass murder. The world body failed to take notice when the Khmer Rouge called for a socially and ethnically homogenous Cambodia with a “clean social system”10 and its radio urged listeners to “purify” the “masses of the people” of Cambodia.11 Nor did it respond vigorously to ethnically inflammatory broadcasts and rhetoric in the Balkans in the early 1990s or in Rwanda in 1993 and 1994 in the months preceding the genocide. Despite several reports during those critical months by the United Nations Assistance Mission in Rwanda and the Special Rapporteur on extrajudicial, arbitrary or summary executions on the incendiary programming of Radio Mille Collines, there was no attempt by the international community to jam those hateful and fateful broadcasts.12
55. There is some reason to believe, however, that the United Nations and its Member States have learned some painful, but enduring, lessons from these calamities. It is true that we have yet to develop the tools or display the will to respond consistently and effectively to all emergencies relating to the responsibility to protect, as the tragic events in Darfur, the Democratic Republic of the Congo and Somalia remind us. Nonetheless, when confronted with crimes or violations relating to the responsibility to protect or their incitement, today the world is less likely to look the other way than in the last century. For example, in November 2004, then Special Adviser on the Prevention of Genocide Juan Méndez reminded the authorities in Côte d’Ivoire, where xenophobic hate speech had exacerbated domestic tensions and spurred further violence, that they could be held criminally responsible for the consequences.13 The offensive messages soon ceased. Similarly, during the early 2008 post-election violence in Kenya, I urged leaders on all sides, as did my Special Adviser on the Prevention of Genocide, Francis Deng, to call publicly for an end to the violence and to statements inciting violence, noting that political and community leaders could be held accountable for violations of international law committed at their instigation. Live broadcasts were banned during the he at of the crisis, when tensions were running high, and former Secretary-General Kofi Annan, who was mediating the dispute, cautioned Kenyan lawmakers that those engaged in acts of violence could not be allowed to act with impunity. Leaders everywhere should be reminded that incitement to racial hatred is condemned by the International Convention on the Elimination of All Forms of Racial Discrimination. Because of the typically public and explicit character of such incitement, it should be relatively easy to identify it and to rally international support for efforts to discourage it. Moreover, where the United Nations has a peacekeeping presence or a means of accomplishing this from offshore or from a neighbouring country, it can counter such messages with its own broadcasts and information services (see S/1999/1257, enclosure, sect. III.6).
56. Talk is not an end in itself, and there should be no hesitation to seek authorization for more robust measures if quiet diplomacy is being used as a delaying tactic when an earlier and more direct response could save lives and restore order. Paragraph 139 of the Summit Outcome reflects the hard truth that no strategy for fulfilling the responsibility to protect would be complete without the possibility of collective enforcement measures, including through sanctions or coercive military action in extreme cases. When a State refuses to accept international prevention and protection assistance, commits egregious crimes and violations relating to the responsibility to protect and fails to respond to less coercive measures, it is, in effect, challenging the international community to live up to its own responsibilities under paragraph 139 of the Summit Outcome. Such collective measures could be authorized by the Security Council under Articles 41 or 42 of the Charter, by the General Assembly under the “Uniting for peace” procedure (see para. 63 below) or by regional or subregional arrangements under Article 53, with the prior authorization of the Security Council.
57. Diplomatic sanctions, if fully and consistently implemented by Member States, provide another way for the international community to underscore the message that committing crimes and violations relating to the responsibility to protect is unacceptable behaviour for a United Nations Member State in the twenty-first century. Leaders responsible for such atrocities, at the very least, should not be welcome among their peers. Nor should they or their countries be eligible for election to leadership posts in subregional, regional or global bodies. Targeted sanctions, such as on travel, financial transfers, luxury goods and arms, should also be considered by the Security Council, on a case-by-case basis and in cooperation with relevant regional organizations, as appropriate, under Articles 41 and 53 of the Charter and in accordance with paragraph 139 of the Summit Outcome (and in the case of sexual violence, in accordance with the terms contained in Council resolution 1820 (2008)). The General Assembly could also consider such measures under its resolution 377 (V), entitled “Uniting for peace”, although they would then not be legally binding. While sanctions may be inadequate to stop abuses by a determined authoritarian regime, if applied sufficiently early they can demonstrate the international community’s commitment to meeting its collective responsibilities under paragraph 139 of the Summit Outcome and serve as a warning of possibly tougher measures if the violence against a population persists.
58. Particular attention should be paid to restricting the flow of arms or police equipment, which could be misused by repressive regimes that are manifestly failing to meet their core responsibilities under paragraph 138 of the Summit Outcome, or in situations where an ongoing conflict threatens to escalate into the perpetration by one side or another of large-scale crimes and violations relating to the responsibility to protect. While the General Assembly has at times called for arms embargoes, only the Security Council has the authority to make them binding. Under Article 53 of the Charter, regional arrangements may take such enforcement steps with the authorization of the Council. In practice, however, it has not been uncommon for regional or subregional bodies or ad hoc groups of Member States to undertake such measures without formal prior authorization from the Council.
59. States and intergovernmental organizations, of course, are hardly the only influential actors in situations relating to the responsibility to protect, as underscored in the discussion of pillars one and two in sections II and III above. The multiple roles of domestic or transnational civil society in advocacy, early warning, monitoring, research, training and education are well known and are readily and repeatedly acknowledged in the present report. Less well known is the role of individuals, advocacy groups, women’s groups and the private sector in shaping the international response to crimes and violations relating to the responsibility to protect. Like the United Nations itself, international civil society learned lessons from the relatively muted, slow and scattered public response to the genocides in Cambodia and Rwanda. The mass, well organized and highly visible transnational campaigns against the violence in Darfur have demonstrated both the power and the limitations of such movements. They have shown the depth and breadth of public concern over ending the violence against the beleaguered population of Darfur, even as they have highlighted how inadequate our policy tools are and how fleeting is the political will to use them. Over the longer term, however, as noted above, those who would commit crimes and violations relating to the responsibility to protect should consider the enduring and wide-ranging damage such atrocities have both on society and on its capacity to recover. Foreign direct investment, cultural exchanges and tourism may be negatively affected for decades to come since the costs to a country’s reputation of such unacceptable behaviour are high and growing. Even if the Security Council does not impose an embargo, individual public and private investors, spurred by non-governmental organizations advocacy networks, are likely to do so instead. Individual financial and trade embargoes may prove far harder to lift without visible and sustainable change within the country concerned.
60. As repeatedly underscored above, there are substantial gaps in capacity, imagination and will across the whole spectrum of prevention and protection measures relating to the responsibility to protect. Nowhere is that gap more pronounced or more damaging than in the realm of forceful and timely response to the most flagrant crimes and violations relating to the responsibility to protect. Here, weaknesses of capacity and the paucity of will, including in many capitals that speak in favour of advancing goals relating to the responsibility to protect, feed off each other in a particularly vicious cycle of hesitation and finger-pointing in the face of unfolding atrocities. Most visibly and tragically, the international community’s failure to stem the mass violence and displacements in Darfur, as well as in the Democratic Republic of the Congo and Somalia, has undermined public confidence in the United Nations and our collective espousal of the principles relating to the responsibility to protect. I am firmly convinced that we can and will do better in the future, acting fully within the framework of the Charter and the provisions of paragraphs 138 and 139 of the Summit Outcome.
61. While the first and enduring responsibility resides with each State to meet its obligations relating to the responsibility to protect, when it manifestly fails to do so the Secretary-General bears particular responsibility for ensuring that the international community responds in a “timely and decisive” manner, as called for in paragraph 139 of the Summit Outcome. For my part, I recognize that, as noted in the report of the Panel on United Nations Peace Operations in a similar context (see A/55/305-S/2000/809), the Secretary-General has an obligation to tell the Security Council — and in this case the General Assembly as well — what it needs to know, not what it wants to hear. The Secretary-General must be the spokesperson for the vulnerable and the threatened when their Governments become their persecutors instead of their protectors or can no longer shield them from marauding armed groups. Within the Security Council, the five permanent members bear particular responsibility because of the privileges of tenure and the veto power they have been granted under the Charter. I would urge them to refrain from employing or threatening to employ the veto in situations of manifest failure to meet obligations relating to the responsibility to protect, as defined in paragraph 139 of the Summit Outcome, and to reach a mutual understanding to that effect. Across the globe, attitudes have changed in important ways since Cambodia, Rwanda and Srebrenica, raising the political costs, domestically and internationally, for anyone seen to be blocking an effective international response to an unfolding genocide or other high-visibility crime relating to the responsibility to protect. All Member States, not just the 15 members of the Security Council, should be acutely aware of both public expectations and shared responsibilities. If the General Assembly is to play a leading role in shaping a United Nations response, then all 192 Member States should share the responsibility to make it an effective instrument for advancing the principles relating to the responsibility to protect expressed so clearly in paragraphs 138 and 139 of the Summit Outcome.
62. As noted above, the credibility, authority and hence effectiveness of the United Nations in advancing the principles relating to the responsibility to protect depend, in large part, on the consistency with which they are applied. This is particularly true when military force is used to enforce them. In that regard, Member States may want to consider the principles, rules and doctrine that should guide the application of coercive force in extreme situations relating to the responsibility to protect. This issue was addressed in the 2001 report of the International Commission on Intervention and State Sovereignty and by my predecessor, Kofi Annan, in his 2005 report entitled “In larger freedom: towards development, security and human rights for all (see A/59/2005, para. 126).
63. The General Assembly has an important role to play, even under pillar three. Its peace and security functions are addressed in Articles 11, 12, 14, and 15 of the Charter. Article 24 of the Charter confers on the Security Council “primary”, not total, responsibility for the maintenance of peace and security, and in some cases the perpetration of crimes relating to the responsibility to protect may not be deemed to pose a threat to international peace and security. Moreover, under the “Uniting for peace” procedure, the Assembly can address such issues when the Council fails to exercise its responsibility with regard to international peace and security because of the lack of unanimity among its five permanent members. Even in such cases, however, Assembly decisions are not legally binding on the parties.
64. Despite years of study and public discussion, the United Nations is still far from developing the kind of rapid-response military capacity most needed to handle the sort of rapidly unfolding atrocity crimes referred to in paragraph 139 of the Summit Outcome. I appreciate the efforts by a number of Member States to consider the components of such a capacity, including doctrine, training and command-and-control issues. Much more needs to be done, however, to internationalize such efforts and put them in the larger context of finding better ways to protect civilians. The continuing consideration of the latter issue by the Security Council and General Assembly is most timely in that regard.
65. Better modes of collaboration between the United Nations and regional and subregional arrangements are also needed. Such arrangements need to consider capacity-sharing and not just capacity-building, as is now the case in mediation support. The African Union-United Nations 10-year capacity-building programme is particularly crucial in that regard. We must redouble our efforts to ensure that it succeeds and that the African Standby Force realizes its full potential. Global-regional collaboration is a key plank of our strategy for operationalizing the responsibility to protect, including for establishing the early warning capability mandated in paragraph 138 of the Summit Outcome, and it deserves our full and unambiguous support.
66. In sum, as the United Nations community comes to articulate and implement a response strategy consistent with both the call in paragraph 139 of the Summit Outcome for “timely and decisive” action and the provisions of the Charter, including its purposes and principles, this will make it more difficult for States or groups of States to claim that they need to act unilaterally or outside of United Nations channels, rules and procedures to respond to emergencies relating to the responsibility to protect. The more consistently, fairly and reliably such a United Nations-based response system operates, the more confidence there will be in the capacity of the United Nations to provide a credible multilateral alternative. This would also help to deter or dissuade potential perpetrators of such crimes and violations.
V. The way forward
67. The present report most certainly will not be the last word on how to operationalize the responsibility to protect. But it does take the critical first step towards turning the authoritative and enduring words of the 2005 World Summit Outcome into doctrine, policy and, most importantly, deeds. It seeks to shorten the road from promise to practice, fully cognizant of the terrible human costs of delay or retreat. The policy ideas presented above seek to realize the full potential of the responsibility to protect within the principles, purposes and provisions of the Charter of the United Nations and paragraphs 138 and 139 of the Summit Outcome, as agreed unanimously at the level of Heads of State and Government. If implemented by Member States, the provisions contained in those documents will permit a robust realization of aspirations relating to the responsibility to protect, so that enthusiasts need not seek to escape the confines of the agreed rules and principles. Indeed, it would be counterproductive, and possibly even destructive, to try to revisit the negotiations that led to the provisions of paragraphs 138 and 139 of the Summit Outcome. Those provisions represent a remarkably good outcome, which will well serve the ultimate purpose of the responsibility to protect: to save lives by preventing the most egregious mass violations of human rights, while reinforcing the letter and spirit of the Charter and the abiding principles of responsible sovereignty.
68. The present report outlines a broad-based approach to the prevention and protection responsibilities of Member States, the United Nations, regional and subregional organizations and our civil society partners. It underscores the need both for a cross-sectoral approach and for sharing the burden in a common effort to eliminate, once and for all, the mass atrocity crimes of genocide, war crimes, ethnic cleansing and crimes against humanity. It offers no miracle cures but finds reason for hope in the expressed common goal, the solid foundation of the responsibility to protect in existing international law, and encouraging trends over the past decade and a half towards an aggregate reduction in the incidence of these horrific crimes. Although ultimately it will be the policies and attitudes of States that will determine whether those positive trends can be sustained, they will find in the United Nations a ready partner. The United Nations and its range of agencies, funds and programmes have in place critical resources, activities and field operations that are already making important contributions to the elimination of these man-made scourges. They could do that much more effectively if goals relating to the responsibility to protect, including the protection of refugees and the internally displaced, were mainstreamed among their priorities, whether in the areas of human rights, humanitarian affairs, peacekeeping, peacebuilding, political affairs or development. Each of these areas of United Nations activity have much to bring to the common effort. The emphasis of the present report is therefore on forging a common strategy rather than on proposing costly new programmes or radically new approaches.
69. To assemble the pieces of this common strategy, however, will require determined and far-sighted leadership, as well as a renewed political commitment. I have long been committed to this goal and will continue to be among its strongest advocates within the Secretariat, with Member States and in public forums. Eliminating mass atrocity crimes will continue to be one of the cardinal objectives of my tenure as Secretary-General. Member States, speaking at the highest level at the 2005 World Summit, have pledged to do their part. This universal commitment has been reaffirmed by the General Assembly and the Security Council. It is now up to the Assembly, as the world’s premier inclusive political forum, to begin the political process of considering the overall strategy outlined in the present report and then, subsequently, of reviewing the modest proposals that I will submit later in 2009 for strengthening the United Nations early warning capacity, as mandated in paragraph 138 of the Summit Outcome, by bolstering the Office of the Special Adviser on the Prevention of Genocide.
70. It will also be essential to reaffirm the complementary and mutually reinforcing roles of the General Assembly and the Security Council in carrying forward this urgent mandate. Clearly, they have critical responsibilities in that regard, under Chapters IV to VIII of the Charter. Other intergovernmental bodies, such as the Human Rights Council, the Peacebuilding Commission and the Economic and Social Council, can also play important parts in implementing the tasks set out in paragraphs 138 and 139 of the Summit Outcome. In each case, the roles of, and relationships among, the intergovernmental bodies should be guided by the principles, purposes and provisions of the Charter.
71. I would urge the General Assembly to take the first step by considering carefully the strategy for implementing the responsibility to protect described in the present report. To that end, I have asked my Special Adviser on these matters, Edward Luck, in close partnership with the Special Adviser on the Prevention of Genocide, Francis Deng, to continue their consultations with Member States and the President of the General Assembly on how best to proceed. I will be actively engaged in that process as well. One possibility would be for the Assembly to debate these proposals at some point in early 2009. Given that the assembled Heads of State and Government unanimously affirmed the responsibility to protect in 2005, the General Assembly should, in my view, look forward to ways in which the United Nations can best help to ensure the fulfilment of the commitments made. In addition to affirming that decision, the Assembly may wish to:
(a) Welcome or take note of the present report;
(b) Define its “continuing consideration” role as mandated in paragraph 139 of the 2005 World Summit Outcome;
(c) Address ways to define and develop the partnerships between States and the international community, under pillar two, “International assistance and capacity-building”, of the strategy outlined in the present report;
(d) Consider whether and, if so, how to conduct a periodic review of what Member States have done to implement the responsibility to protect;
(e) Determine how best to exercise its oversight of the Secretariat’s efforts to implement the responsibility to protect.
On the latter point, the Assembly’s oversight of the implementation of the agreed strategy could be organized in different ways, depending on the preferences of Member States. The Secretary-General, for example, could submit an annual or biennial report for the next several years on implementation steps relating to the responsibility to protect, given the issue’s wide programmatic and normative dimensions.
72. I look forward to a constructive and interactive dialogue with Member States on my proposals, since the responsibility to protect — and now to deliver — is an idea whose time has come. The alacrity with which public and civil society groups in every part of the world have embraced the responsibility to protect confirms this. In 2005, our leaders charged us with a critical and straightforward task: to make their words come to life and to make the aspirations of people everywhere for a safer, more secure world for “We the peoples” a reality. This is a quest that should unite us, not divide us, for there should be no dissent about the ultimate objectives. I look forward to working with the Member States on this common effort.
Early warning and assessment
1. Given their magnitude and severity, the preparations for and the incitement and perpetration of crimes and violations relating to the responsibility to protect can best be understood and identified through a range of perspectives. A human rights and humanitarian perspective is essential, of course, but political, security, economic, social and development perspectives are also required for understanding both the pattern of events that could lead to such massive affronts to human dignity and how to forestall them. In that regard, the perspective of the responsibility to protect can also provide an integrated framework for relating the various components of a broad-based United Nations response to such unfolding situations and for gauging their likely course. This would entail utilizing the information gathered and insights gained by existing United Nations entities, not relabeling or duplicating ongoing activities and programmes. In short, the principles relating to the responsibility to protect need to be integrated and mainstreamed in the ongoing work of the Organization. For the responsibility to protect, as well as for the rest of the work of the Organization, teamwork and collaboration must become standard operating procedure, not aspirational goals.
2. Information itself is rarely the missing ingredient. In both Rwanda and Srebrenica, the United Nations had peacekeeping forces and other personnel on the ground, as has been the case in several other places where egregious crimes relating to the responsibility to protect have occurred. Over time, the world body has become an increasingly field-based organization, with a growing array of human rights, humanitarian, development, political, peacekeeping and peacebuilding personnel working with local staff, regional and subregional partners and civil society groups in fragile or war-torn countries. In considering policy options in such varied and sensitive situations, local knowledge and perspectives can be a great asset. United Nations decision-making should be enriched by the input of regional and subregional organizations, whenever possible. The two-way flow of information, ideas and insights between the United Nations and its regional and subregional partners needs to be regularized and facilitated on matters relating to the responsibility to protect, especially with regard to early warning and timely and decisive response.
3.3. Independent sources of information are plentiful. They include both indigenous and transnational civil society groups, although the former tend to receive too little attention from global decision makers. Among local groups capable of providing timely and sensitive information on evolving conflict situations are grass-roots women’s organizations. At the global level, a number of human rights and humanitarian monitoring groups have well developed networks, methodologies and reporting channels. Often they have been the first to sound the alarm in the early stages of atrocity crimes. Such independent reports, whether from local or transnational sources, can help point the way to situations where more United Nations attention is needed or else corroborate or supplement information received through official channels. The United Nations prefers, however, not to act solely on the basis of information received from such independent sources. For sound decision-making, the quality and reliability of the information can matter more than the quantity.
4. To meet the challenge of the responsibility to protect, including the call in paragraph 138 of the 2005 World Summit Outcome for an early warning capability, the United Nations does not need to create new networks that could duplicate existing arrangements for monitoring or information-gathering on the ground. By and large, the diverse channels of information of the United Nations have improved substantially in recent years. Rather than create redundant channels devoted solely to crimes and violations relating to the responsibility to protect, I would therefore ask the relevant line departments, programmes, agencies and inter-agency networks to incorporate considerations and perspectives relating to the responsibility to protect into their ongoing activities and reporting procedures to the extent that their mandates permit. This would have two major benefits. First, adding the perspective of the responsibility to protect to existing perspectives would help the United Nations to anticipate situations likely to involve the perpetration of such crimes and violations by enhancing its ability to identify precursors, recognize patterns, and share, assess and act on relevant information. The wrong questions produce the wrong answers. Second, such a unifying perspective would facilitate system-wide coherence by encouraging more regular dialogue, information-sharing and common analysis among disparate programmes and agencies.
5. An improved information flow alone cannot provide assurance of sound decision-making, much less of the political will for timely and decisive action to implement the decisions taken, as pledged in paragraph 139 of the Summit Outcome. Information is a necessary but hardly sufficient condition for an effective collective response. How the available information is assessed matters a great deal in situations relating to the responsibility to protect, given the patterns of behaviour, action and intent involved in the four specified crimes and violations. Similarly, because the United Nations response could involve a mix of policy tools under Chapters VI, VII and/or VIII of the Charter, and because that mix should be reviewed and adjusted as events evolve on the ground, the decision-making process should be relatively broad-based, inclusive and flexible at both the Secretariat and intergovernmental levels. To ensure system-wide coherence in policymaking within the Secretariat, as well as an early and flexible response tailored to the needs of each situation, an inter-agency and interdepartmental mechanism will be utilized to consider policy options to be presented to me and, th rough me, to relevant intergovernmental bodies.
6. In the interests of both efficiency and effectiveness, it should be noted that the Special Adviser on the Prevention of Genocide and the Special Adviser to the Secretary-General, whose work includes the responsibility to protect, have distinct but closely related mandates. In 2004, in a letter to the President of the Security Council, then Secretary-General Kofi Annan listed the responsibilities of the Special Adviser on the Prevention of Genocide as follows (see S/2004/567, annex):
(a) To collect existing information, in particular from within the United Nations system, on massive and serious violations of human rights and international humanitarian law of ethnic and racial origin that, if not prevented or halted, might lead to genocide;
(b) To act as a mechanism of early warning to the Secretary-General, and through him to the Security Council, by bringing to their attention situations that could potentially result in genocide;
(c) To make recommendations to the Security Council, through the Secretary-General, on actions to prevent or halt genocide;
(d) To liaise with the United Nations system on activities for the prevention of genocide and work to enhance the United Nations capacity to analyse and manage information regarding genocide or related crimes.
7. I have asked the Special Adviser to the Secretary-General, on the other hand, to develop, in close consultation with the Special Adviser on the Prevention of Genocide, the conceptual, institutional and political dimensions of operationalizing the responsibility to protect, consistent with the provisions agreed in paragraphs 138 and 139 of the Summit Outcome. This has included taking the lead role in preparing the present report. The Summit Outcome affirmed the close relationship between these issues, not only by including genocide as the first of the four crimes and violations encompassed by the responsibility to protect, but also by expressing, in paragraph 140, the full support of the Member States for the mission of the Special Adviser on the Prevention of Genocide, under the provisions relating to the responsibility to protect. In my letter dated 31 August 2007 to the President of the Security Council (S/2007/721), I noted that “for reasons both of efficiency and of the complementarity of their responsibilities, they [the two Special Advisers] will share an office and support staff”. The work of the joint office will preserve and enhance existing arrangements, including for capacity-building and for the gathering and analysis of information from the field, while adding value of its own in terms of new arrangements for advocacy, cross-sectoral assessment, common policy, and cumulative learning on how to anticipate, prevent and respond to crises relating to the responsibility to protect. Proposals for the small joint office, to be headed by the Special Adviser on the Prevention of Genocide, will be submitted to the General Assembly once it has had an opportunity to consider the larger policy issues addr essed in the present report.