Australian Permanent Mission and Consulate-General
Geneva, Switzerland
Address: Chemin des Fins 2, Case Postale 102, 1211 Geneva 19 - Telephone: 022 799 9100 - Fax: 022 799 9178

Responsibility to Protect: Panel Event

The Human Rights Council’s role in supporting the practical implementation
of the Responsibility to Protect

19 June 2012

Summary

Opening Address:
Ms Navanethem Pillay, High Commissioner for Human Rights

Moderator:
Professor the Hon Gareth Evans AO QC, President Emeritus of the International Crisis Group

Panellists:
- Mr. Edward Luck, Special Adviser to the Secretary-General on the Responsibility to Protect
- H.E. Mr. Sihasak Phuangketkeow, Permanent Secretary, Ministry of Foreign Affairs of Thailand; past-President of the Human Rights Council
- H.E. Mr. José Luis Cancela, Permanent Representative of Uruguay to the United Nations in New York
- General Martin Luther Agwai CFR, former Chief of Defence Staff, Nigerian Armed Forces; Deputy Force Commander UNAMSIL; Deputy Military Adviser to the UN Secretary-General on Peacekeeping Operations
- Dr. Csaba Törő, Senior research fellow, Hungarian Institute of International Affairs


Opening Address

The High Commissioner for Human Rights opened the panel event via video message.

The High Commissioner recalled that at the World Summit of 2005, the Heads of States and Government solemnly recognised that every State, and the international community as a whole, had the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

In accordance with the notion of State sovereignty as responsibility and the most basic tenets of international human rights law, it was first and foremost the responsibility of each State to protect its own population. At the same time, the leaders gathered at the 2005 World Summit recognised that, when necessary, the international community should assist States in implementing the responsibility to protect their own population. Finally, where a State manifestly failed to protect its own population, the international community had a responsibility to protect, which it should exercise using the means prescribed – and circumscribed – by the Charter of the United Nations (UN).

The High Commissioner welcomed the initiative of Australia, Hungary, Nigeria, Thailand and Uruguay to discuss the role of the Human Rights Council regarding the Responsibility to Protect. This cross-regional initiative underscored that the Responsibility to Protect remained alive and highly relevant in light of today’s challenges. The High Commissioner recalled that the Human Rights Council had played and would continue to play an important role in developing and implementing the Responsibility to Protect. When crimes and violations covered by the Responsibility to Protect occurred, the Human Rights Council provided a representative international forum to urgently convene States, notably through special sessions and urgent debates. On some occasions, the Council had sent a united and strong signal that such atrocities would not be tolerated and individual perpetrators should be brought to account. The High Commissioner encouraged the Council to consistently take such strong and united action.

The High Commissioner noted that Commissions of Inquiry and other fact-finding mechanisms set up by the Council were also relevant. They provided a means to gather objective and up-to-date information. Their recommendations pointed to appropriate national or international action to curb the crimes and violations covered by the Responsibility to Protect.

The High Commissioner stressed that having to react to past or on-going atrocities implied that there had already been a failure to protect. The most effective way to implement the Responsibility to Protect lay in the prevention of relevant violations and crimes before they occurred. It was at this stage that the Council could be most effective.

The High Commissioner noted that the crimes and violations covered by the Responsibility to Protect never happened without warning. They occurred because warning signs such as the persecution of minorities, hate speech, patterns of sexual violence, child soldier recruitment or a rapid deterioration of the social and economic situation were not perceived or understood or they were deliberately ignored. The High Commissioner recalled that witnesses in the Rwanda Genocide Trials said that Hate Speech over the years were like small drops of petrol that set the whole country on fire.

The High Commissioner encouraged States to continue to closely study the information and insights generated by Special Procedures and treaty bodies, which could provide early warning. The High Commissioner also encouraged the Council to ensure that the reports and recommendations of its Special Procedures beared more systematically and effectively on its decisions and outputs, including through the Universal Periodic Review (UPR).

The High Commissioner welcomed the occasions on which the Council had supported initiatives of her Office to deploy monitors or set up field offices in situations at risk, often with the invitation to report back to the Council on their findings. The High Commissioner and her Office stood ready to expand its monitoring, reporting and early warning activities as and when needed.

As regards international assistance to States who need support in implementing the Responsibility to Protect, the High Commissioner considered that the Human Rights Council could signal human rights-based priorities to donors and bodies that coordinate humanitarian, development assistance and peace-building efforts. This could help ensure that effective support was provided to national rule of law and human rights institutions that could curb grievances and tensions lying at the root of Responsibility to Protect crimes and violations. The High Commissioner appreciated the Council’s support for technical assistance initiatives of her Office aimed at developing national capacity to prevent gross human rights violations.

The High Commissioner looked forward to hearing about the outcome of the discussions at this panel event.

Panel Presentations

The Moderator of the Panel, Professor Gareth Evans, noted that, of all the human rights issues the Human Rights Council had to address, the ones that most offended and challenged every precept of common humanity were the mass atrocity crimes: genocide, ethnic cleansing, crimes against humanity and large-scale war crimes: those catastrophic human rights violations where men women and children were murdered, tortured, raped, starved or forcibly expelled for no other reason than their race, ethnicity, religion, nationality, caste, class or ideology.

Professor Evans recalled how little international consensus there had been, not only over the centuries but over recent decades, about how to react to these cases. Even after the horrors of the Holocaust and all the developments in international human rights law and international humanitarian law that followed World War II, when it came to reacting to cases like Cambodia, East Pakistan, and Uganda in the 1970 and 1980s, and Rwanda, Bosnia and Kosovo in the 1990s, the world was in almost total disarray. Professor Evans noted that the only real debate in the 1990s was about ‘humanitarian intervention’: the so-called ‘right to intervene’ militarily. There was little discussion of prevention. The options were to ‘send in the marines’ or do nothing. The global North often rallied to that cry, but the global South was understandably deeply reluctant – after its unhappy historical experience – to accept the idea that large countries had the right to intervene in this way. This resulted in division and inaction and despair.

Professor Evans recalled that it was to find a way through this consensus-free zone that the concept of the Responsibility to Protect (R2P) was born – initiated in the 2001 report of the ICISS Commission which Professor Evans co-chaired with Mohammed Sahnoun, and endorsed by the UN General Assembly sitting at head of state and government level at the 2005 World Summit.

Professor Evans noted that there were crucial differences between R2P and the ‘right of humanitarian intervention’, and it was a fundamental mistake to maintain, as some still did, that R2P was no more than ‘old humanitarian intervention wine in a new bottle’. In particular: Professor Evans notes that R2P was primarily about prevention, whereas humanitarian intervention was only about reaction. R2P was about a whole continuum of reactive responses – from diplomatic persuasion, to pressure, to non-military measures like sanctions and International Criminal Court process – and only in extreme, exceptional and last resort cases military action, whereas humanitarian intervention was only about military reaction. R2P involved a wide range of actors, whereas humanitarian intervention focused only on the role of those capable of applying coercive military force.

Professor Evans reiterated that R2P involved three distinct levels of responsibility. The primary responsibility was that of the sovereign state itself to its own people, which was absolute, unconditional, and continuing: not to perpetrate or allow atrocity crimes on its territory (‘Pillar I’). The second responsibility was that of others in the international community – including other States and intergovernmental organisations like the Human Rights Council – to assist States to discharge that primary responsibility (‘Pillar II’). The third responsibility was that of others – if prevention failed, and a State was manifestly failing to protect its own people – to then provide that protection by (to quote the High Commissioner ) ‘every means prescribed – and circumscribed – by the UN Charter’ (‘Pillar III’).

Professor Evans recalled that, since 2005, there had been a long period of debate about the meaning, scope and limits of R2P, in a variety of contexts. But following the major debates in the General Assembly in 2009, 2010 and 2011, R2P had won a remarkable degree of acceptance in principle. Professor Evans considered that UN Secretary-General Ban Ki-Moon was not exaggerating when he said in September 2011, ‘our debates are about how, not whether to implement the Responsibility to Protect. No government questions the principle’.

Professor Evans acknowledged that some of the debate about how to implement R2P was still fierce and divisive. A high point had been reached in the Security Council in February and March 2011, when there was real consensus both about the steps that had to be taken to stop atrocity crimes that were happening in Libya and feared likely to happen on an even bigger scale. However, Professor Evans considered that, in relation to the even worse human rights situation in Syria, a low point of paralysis had been reached in the Security Council, even on adopting non-military measures.

Professor Evans noted the need to recognise that there had been some infection of the R2P concept by the perception, accurate or otherwise, that the civilian protection mandate granted by the Security Council was manifestly exceeded in the actual conduct of the NATO-led intervention in Libya. The international community needed to consider why that consensus fell away: the justification or otherwise of that perception, and what should be done about it. Professor Evans considered that Brazil had made a major contribution to that debate with its advocacy of a new concept of ‘Responsibility While Protecting’ (RWP). The idea was not abandon the concept of R2P, but to recognize that, if consensus was to be reached again on difficult cases, there needed to be a fundamental change in the way the Security Council debated and then subsequently implemented such mandates: in particular, by allowing serious continuing debate on their scope and limits .

Professor Evans noted that this was not the debate to be had in Geneva. It was one for New York: in the General Assembly debate coming up in September 2012 on Pillar III, and in the Security Council. Professor Evans hoped that the starting point of the debate at this panel would be recognition that if one was having a debate about Pillar III in a particular case, it was because prevention had failed. The starting point should be to acknowledge that the smartest thing the international community should be doing was to focus on the crucial preventive foundations in Pillars I and II, and to make these work.

Professor Evans encouraged the panel to focus on the value-adding, preventive role the Human Rights Council could play: in institution building, technical assistance, early warning capacity building, best practice advice, and attention to the human rights warning signs, which if heeded and responded to effectively, would make the difficult debates about Libya and Syria irrelevant.

Professor Evans considered that R2P had been a remarkable normative achievement. It had changed the way the international community thought and acted. Even if there was disagreement about how precisely to react in particular hard cases, there was no desire to return to the days of indifference, inaction and division.

Professor Evans stressed the need to work more effectively to consolidate the preventive foundations of R2P.

Mr Ed Luck outlined the four dimensions to the Secretary-General's approach to responsibility to protect. Firstly, the Secretary-General sought to build on regional and sub-regional initiatives, which had been the subject of his 2011 report to the General Assembly. The African experience and institutions were particularly noteworthy.

Secondly, the Secretary-General saw R2P as strengthening sovereignty, rather than undermining it. The relationship between R2P and sovereignty was often misunderstood. The Secretary-General did not accept that it was part of sovereignty to slaughter one's own people. Rather, he sought to find means to assist States in protecting their own population. Mr Luck recalled paragraph 139 of the 2005 World Summit outcome, which included a special reference to 'assisting states under stress'.

Thirdly the Secretary-General noted that paragraph 139 also provided that the General Assembly would have continuing consideration of R2P. As R2P developed, the first place to start was the General Assembly. Mr Luck was pleased to see the Human Rights Council joining in this normative development, and considered that there was important work that could be done in Geneva.

Finally, the Secretary-General promoted prevention as a first priority, and an early and flexible response when a situation deteriorates. Mr Luck noted that in many cases, R2P had been implemented through non-coercive measures; although the public focus would always be on coercive action by the Security Council. Every case should be addressed on its own merits. Any R2P response should be flexible, based on a solid assessment and understanding of the society and circumstances involved.

Mr Luck acknowledged that the General Assembly had primary carriage of R2P discussions, but welcomed the Human Rights Council's increasing engagement. Mr Luck considered that the operations and normative elements of the Human Rights Council within the UN system were helpful in implementing R2P. Mr Luck recalled that the Human Rights Council had in fact reacted before the Security Council to invoke R2P in the cases of Syria and Libya.

Mr Luck considered that the UPR process was helpful, as were the Commissions of Inquiry into Libya and Syria, in assessing the facts on the ground. Mr Luck noted that Commissions of Inquiry were important, including for accountability reasons. Luck noted that R2P dealt with only a portion of the human rights spectrum, namely the most extreme violations. R2P did not evolve any new international law. Rather, it was a conceptual and strategic way of analysing situations and offering political impetus.

Mr Sihasak Phuangketkeow highlighted the importance of viewing R2P through, first and foremost, responsibility of States to protect their citizens as well as the responsibility of the international community to assist those States. Indeed, how to ensure responsibility of states to promote and protect human rights was the core mandate of the Human Rights Council. If the Human Rights Council did its work well, if it maximised its tools and mechanisms, which were non-coercive measures, then perhaps the Council could prevent, pre-empt or minimise situations that might require more coercive measures under R2P. Mr Phuangketkeow suggested that the Council should look at the tools available and explore how it could do better, how these tools could be enhanced. This had been the subject of some discussion during the Human Rights Council Review, during which Mr Phuangketkeow was President of the Council.

Mr Phuangketkeow considered that the Universal Periodic Review (UPR) was an important tool of the Council. He considered that it was important to make constructive, un-politicised recommendations, and for states under review to then seek to implement the recommendations through real capacity building. In fact, the Council attached importance to capacity-building by placing it on the Council’s agenda (agenda item 10). If capacity building was really implemented and not used as a back-door for political intervention, it could make a real impact on the ground. Resources should also be made available to assist developing countries to implement human rights.

Mr Phuangketkeow noted that the Human Rights Council's current tools for dealing with urgent country situations included urgent debates and special sessions, but these came with a sense of stigmatisation. Countries needed to be engaged early on, before crises broke out. Mr Phuangketkeow called on the Council to consider what other formats could be developed to engage countries with the Council when crisis was looming in order to achieve consensus, such as informal sessions, closed sessions, voluntary briefings, presidential statements instead of resolutions, possible facilitating roles of the Council President. Unfortunately, the Council could not come to an agreement on these formats of engagement during its first review, but it remained important for the Council to continue its discussion. Because once these non-coercive measures were exhausted, then perhaps there would be a basis or legitimacy to undertake steps to respond to situations of mass atrocities with more coercive measures. Mr Phuangketkeow noted that in any case, a decision to apply more coercive measures was beyond the responsibility of the Human Rights Council, and rested with the Security Council. Mr Phuangketkeow noted that these were not easy decisions for the Security Council. They required sustained political will, resources and the non-selective application of R2P without double standards. Consideration must be given to responsibility to protect during and after the intervention. Mr Phuangketkeow concluded that, if the Human Rights Council did its work well by strengthening its tools, mechanisms and culture of work, this would serve the implementation of R2P.

HE Mr Jose Luis Cancela noted the relevance and timeliness of the panel discussion, in light of mass atrocities occurring almost on a daily basis. This context added a sense of urgency and a level of complexity which were impossible to ignore and which tended to focus the attention on the most sensitive and divisive aspect of R2P: the possibility of taking coercive measures, and the resort to the use of force to stop mass atrocities, which was only an exceptional option under the third pillar.

Mr Cancela attached great importance to the commencement of a proper discussion on the first and second pillars of R2P. This was not so much because they represented the least contentious aspects of the concept, but because their focus on preventive measures and prevention were the key to the solution. For Mr Cancela, a ‘timely and decisive response’ had much more to do with prevention than with reaction. Thus the multilateral system should do everything in its power to avoid reaching the point of reaction.

In this regard, Mr Cancela considered stressed the importance of confidence building: among Member States in the Human Rights Council, the UN in general, and taking into account the role of regional organizations. Confidence also needed to be built inside States. Societies should have a clear understanding that fulfilling their basic needs, rights and fundamental freedoms was not a matter of charity but a legal and moral obligation by their rulers. Moreover, in a world where non-state actors were becoming a greater threat for civilian populations who were the direct target of their actions, assistance to host governments to manage these threats was crucial. For that to happen, Governments willing to protect their population needed to be humble enough to ask for cooperation. Mr Cancela noted that the most effective efforts in capacity building were the ones undertaken with the clear consent, a strong commitment and a constructive engagement from the host authorities, involved in an inclusive dialogue under the principle of national ownership.

Mr Cancela noted that the international community had many avenues for undertaking capacity building. The UN had no monopoly; it shared the job with many actors. The need for joint efforts and coordinated actions was evident.

Mr Cancela considered that there were a number of tools to assist host governments to prevent mass atrocities which did not necessarily fall under the conceptual umbrella of R2P. Mr Cancela considered that the international community should support these tools and leave as a lesser consideration how to label them, or in which conceptual category to put them. For instance, in most cases where a UN peacekeeping operation existed, it had in its mandate the task of protecting civilians (PoC), which was done based on the universally accepted principles of international humanitarian, human rights, and refugee law, and as a supportive role (bearing in mind the primary responsibility of the host country) to protect civilians. Without affecting the legal, conceptual and political distinctiveness of the two concepts, if at some point PoC was working for R2P in a politically and legally safer framework, the international community should let it do the job. These missions did not merely provide physical protection, but also helped in building capacities in areas that were critical for a sustainable protection, such as security sector reform and rule of law.

In the same way, Mr Cancela noted that the human rights components of UN field missions had a preventive and capacity building purpose. The Peacebuilding Commission could also help in these endeavours in countries in the aftermath of conflict or in transition.

Mr Cancela considered that the Human Rights Council could play a pivotal role in implementing Pillars I and II. Its special procedures and mechanisms, as well as the Universal Periodic Review, could work as early warnings, and could also become a preventive tool by making recommendations in line with the States´ responsibility to protect its population and by helping them in implementing those recommendations, including through international cooperation when needed. The treaty body system contributed to these aims as well. Mr Cancela was confident that the Office of the High Commissioner for Human Rights would continue to support the ability of States to fulfil their responsibility to protect, through long-term measures, such as institution-building and technical cooperation to promote respect for human rights, and to prevent and address human rights violations. Mr Cancela hoped that the Office would find support from other actors, especially of the UN system, in mainstreaming a human rights approach.

Conscious of the sensitivities and the differences that existed around how to implement R2P, Mr Cancela considered that Uruguay and many others countries in Latin America and the global South could help building bridges, looking for practical solutions based on lessons learned. Mr Cancela noted that he came from a region which suffered both mass atrocities by rulers on one hand and foreign intervention (though not to stop the latter) on the other. This region was an early supporter of the peaceful settlement of disputes and pioneer in the defence and protection of human rights. This put Latin America in a unique position to play a constructive role in this process.

Mr Cancela recalled that, apart from the legal obligations to protect civilians that emanated from international law, the Responsibility to Protect civilian populations from mass atrocities was an ethical imperative that reflected a long evolution of humanity towards a coexistence which respected life and human dignity and held integrity at the centre of its values.

General Martin Agwai noted that it had been ten years since the African Union included Article 4(h) in the Constitutive Act of the African Union, enshrining the right of the Union to intervene in a Member State in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity. Responsibility to Protect had generated a lot of controversy. Some saw it as a norm, not a law. Some saw it as a concept, not a policy. In any event, the current global situation made R2P important and implementable. There had been situations raising issues about early warnings, economic sanctions, mediation, and other avenues for dealing with mass atrocities.

General Agwai recalled his background and his role in peace keeping, and considered that R2P had been relevant and important. The African Union had played a key role in the development of R2P. ECOWAS had established ECOMOG to intervene in the civil war in Liberia, before the Security Council took action. ECOWAS had stayed engaged, even when the developed world was evacuating its nationals from West Africa. West Africans had taken action to protect their people. The African Union was continuing its leadership on prevention, including through its Peace and Security Council. General Agwai noted the importance of seeking advice and guidance from elders and learning from the past. General Agwai endorsed previous speakers' focus on prevention. This was particularly relevant in Africa, where there was a high degree of poverty. Poverty generated instability. General Agwai considered that the international community should help to build up the economy of developing countries, to provide opportunities and jobs, especially for youth.

General Agwai considered that the issue of ownership was also key: the international community should work with governments and regional and economic bodies to help governments to acquire ownership of their situations. General Agwai considered that if a response was perceived as punitive or a sanction, then governments would not cooperate.

Given the high incidence of peacekeeping missions in Africa, General Agwai considered that it was important that the world build partnerships with Africa to ensure that R2P became a cornerstone of all regional bodies. Regional bodies should be key in directing responses under Pillar II. In helping Africa to have ownership, Pillar II required assistance to regional bodies in addressing situations of conflict. The challenges in Africa were nearer to the regional bodies than any other organisations. The regional bodies understood the problems best. Building capacity was very important.

Working with the African Union, regional bodies and national governments, General Agwai considered that emphasis should be placed on the development of an accountable security sector, judicial reform, and a strong economy. These would act as a stimulant to prevent situations eventually requiring a coercive R2P response.

General Agwai stressed that care should be taken to avoid giving the impression that R2P was another form of global government. It should also not be seen as another way to fight for strategic resources. The interests of those affected must be put first. General Agwai called on all countries to work together on dialogue, confidence-building and prevention efforts, build economies and close disparity gaps. This would create the necessary conditions for prevention, and avoid Pillar III scenarios. General Agwai recalled that any military intervention would be detrimental to human rights.

Dr Csaba Törő considered that the protection of fundamental human rights as the clearest and least controversial motive and constitutive component of the normative foundations and stated purposes of R2P. The mass atrocities which the implementation of R2P intended to avert amounted to human rights emergencies, and required ‘insurance policy and contingency planning’, ‘human rights disaster relief’, and ‘rehabilitation capacity and post-traumatic therapy’.

Dr Törő noted that the absence of more exact formulation of the ‘responsibilities to prevent’: namely, advice and assistance, warning and pressure, in the 2005 World Summit outcome left its definition to be developed in subsequent practice. Dr Törő considered that the interpretation and coherent treatment of situations to remind States of their responsibility to protect as an eminent and unequivocal human rights emergency enabled the international community to define the contours and content of national responsibilities with more clarity in terms of international human rights obligations.

Dr Törő recalled that the definition of accepted primary responsibility of UN Members to protect their populations against mass atrocities – according to the 2005 World Summit Outcome – entailed duties pertaining to sovereign States. These were not voluntary and optional commitments, but rather obligations deriving from the prescriptions of international human rights norms. Dr Törő considered that the emphasis on the human rights dimension of R2P firmly placed the evolving policy doctrine within the existing UN framework of systemic monitoring and situation assessment.

Besides periodic reviews of general practices and conditions in Member States revealing possible systemic dangers of grave human rights violations, Dr Törő considered that the Human Rights Council was the most competent and authentic UN platform to identify circumstances and tendencies possibly or actually leading to human rights emergencies. Regarding the ‘secondary’ responsibility of the international community to protect, the Human Rights Council had a distinct place in the UN system to alert and mobilise institutional response by means of early warning and timely reports on unfolding events with potential for grave deterioration in human rights.

Dr Törő noted that when the need for concerted international measures for the implementation of R2P in its consensual (preventive and supportive) or coercive (protective in case of emergency) functions arose, the impartial and factual findings of the Council on situations and its resolutions could potentially provide the necessary catalyst for setting the central political organs of the UN into motion.

As demonstrated recently in the instances of political uprising rapidly triggering brutal State responses and indiscriminate violence against civilians in Libya and Syria, Dr Törő noted that the Human Rights Council had been instrumental – from the outset of those conflicts – in providing evaluations on the escalation of these internal conflicts resulting in mass atrocities and posing systematic risks to a growing number of civilians.

Dr Törő noted that the deadlock over the adequate response to the mass atrocities in Syria vividly illustrated that the expected catalytic effect of alarming and authentic situation assessments from the Human Rights Council was confined to a General Assembly resolution without any effects or measures to counter a textbook case for the application of R2P. Dr Törő noted that the invocation and implementation of R2P moving credibly from prevention to reaction remained only a distant possibility as long as the crucial element in the multilateral response mechanism – timely and adequate collective measures through the Security Council – could be paralysed by its inherent ultimate limitation, the exercise of great power veto.

Interactive Dialogue

The representative of Namibia thanked the panellists for their contributions. He recalled that the Responsibility to Protect did not bring up new obligations, but rather provided a different way of looking at the issue of promoting and protecting human rights. Namibia considered that there was a fundamental connection to the issue of development. If the international community sought to prevent circumstances that led to human rights violations, it was important to promote development in countries. This touched on a range of issues already dealt with in the Human Rights Council and the UN Development Programme. Namibia suggested that discussions should focus on how to strengthen development. As General Agwai said, poverty was an important factor. If poverty could be alleviated, this would assist in preventing human rights violations.

The representative of the Global Centre for the Responsibility to Protect underscored that at the core of the Responsibility to Protect lay the responsibility to prevent. Prevention remained the least understood aspect of the Responsibility to Protect. Domestic and international and regional actors responded too little, too late to mass atrocity crimes. But prevention could work. In Guinea, for example, the Human Rights Council had taken steps to make preventative efforts in resolutions 13/21 and 19/30. It was the primary responsibility of Guinea to protect its populations and support the opening of the office of the High Commissioner for Human Rights. This was a positive example of how the Human Rights Council could prevent mass atrocities crimes, emphasising Pillar I and II. Unfortunately successful examples such as Guinea were too rare. The Human Rights Council had a role to play by: providing early warning; urging States to take preventative action; and employing tools at the Council’s disposal such as resolutions and inquiries. The Global Centre encouraged the Council to urge governments to: reaffirm their commitment to responsibility to protect; undertake a review of their existing capacities in this area; and appoint a senior government official as a focal point for the Responsibility to Protect. The Global Centre recalled that the focal points, launched in 2011, were responsible for promoting responsibility to protect at the national level.

The representative of Cuba delivered a statement on behalf of China, Pakistan, the Russian Federation, Sri Lanka, Sudan, Venezuela and Cuba. Cuba considered that the concept of the Responsibility to Protect, which was often interpreted as granting the right to intervene, was not established in the UN Charter or in the general principles of international law. Cuba recalled in this regard the UN Charter as well as the UN Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the UN, and General Assembly Resolution 2625/1970. The latter resolution reiterated the principle ‘that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.’

In accordance with the principle of sovereign equality of States, Cuba observed that the sovereignty as responsibility had always been a defining attribute for nation states, where safeguards for the protection of fundamental rights of citizens were constitutionally provided. Violations of the principle of national sovereignty might lead to the creation of situations which brought misery and suffering upon the peoples of concerned States and even threaten international peace and security.

Cuba recalled that, in accordance with paragraphs 138 and 139 of the 2005 World Summit Outcome Document, States were responsible for the protection of their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. The role of the international community in the context of R2P was focused on providing help and assistance to interested States in building their capacity to protect their populations from these four types of crime. Cuba stressed that this was a closed list of international crimes which could not be interpreted broadly. Collective actions were to be taken in accordance with the UN Charter and through the Security Council only.

Cuba considered it was regrettable to witness the Responsibility to Protect providing a pretext for unilateral action and intervention in the guise of humanitarian action. The international community was well aware of attempts to abuse the concept of Responsibility to Protect to further political and economic objectives which were unrelated to the protection of the concerned populations, and had led to the violation of territorial integrity and sovereignty of the concerned States. Cuba had seen instances where intervening forces were responsible for the deaths of hundreds of thousands of innocent civilians, and even torture, extrajudicial executions, arbitrary detentions and rape. These humanitarian tragedies were often dismissed as ‘collateral damages’. Cuba questioned the selective application of the concept of R2P in the case of certain countries.

Cuba urged Member and Observer States of the Council to be cognisant of the dangers in the creation of new and unfettered norms, which had no inbuilt safeguards against misuse and abuse.

Cuba noted that the Human Rights Council had been established to engage in the promotion and protection of human rights of all people. Cuba considered that R2P was clearly outside the mandate of the Human Rights Council.

Cuba noted that when the General Assembly agreed on the parameters, content and framework of the Responsibility to Protect, and assuming that the process of reaching such agreement is the outcome of a genuine consultative process, where the views of all States were taken into consideration, then Cuba would be among the first to defend the concept and its application.

The representative of the United States welcomed the opportunity to discuss and advance the common commitment to the Responsibility to Protect. Seven years ago all UN Members came together to endorse and accept a shared responsibility to protect populations from genocide, ethnic cleansing, crimes against humanity, and war crimes. While aspects of this principle would need to be elaborated further, the Member States embraced a principle of protection anchored in three pillars: the essential responsibility of States to protect their own citizens; the shared responsibility to take appropriate steps to assist States in exercising that solemn duty, and the preparedness to take timely and decisive action where national authorities manifestly failed to do so. The consensus agreement in 2005 reflected recognition of common humanity and a new clarity in the collective conscience that certain actions could not be allowed to stand.

The United States noted that it remained a strong supporter of the concept of Responsibility to Protect, and it was committed to working with international partners at the Human Rights Council to focus on Pillar II – prevention and capacity building – in order to develop more effective strategies to protect populations from atrocities.

The United States noted that, in August 2011, President Obama had affirmed that ‘preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States.’ President Obama had directed a government-wide review of the United States’ ability to prevent and respond to mass atrocities, and mandated creation of a new Atrocity Prevention Board to coordinate internal efforts, with priority on prevention and other activities under Pillar II. This initiative emphasised the need to mobilise a full and diverse range of tools to prevent atrocities. It also put a premium on enhanced cooperation with international partners, including the UN, and underscored the importance of international collaboration to develop more effective strategies for prevention and preparedness, so that planning and diplomacy became tools to prevent atrocities not just to respond to them.

The United States considered that there were no easy solutions when confronting the gravest of threats to innocents. The United States welcomed the opportunity for ongoing dialogue and continued work together with the core group of sponsors and other international partners, to fulfil the Responsibility to Protect that was embraced in 2005.

The representative of Egypt referred to the Secretary-General’s report on ‘Implementing the responsibility to protect’ of 12 January 2009. In the report, the Secretary-General called on States to assist the Human Rights Council in assisting States to meet their responsibility to protect obligations. However, Egypt considered that this paragraph related only to the first pillar of R2P. Regarding the report and discussions under Pillar II, it was not clear what the UN would be charged with, or how to enhance capacity building and international assistance. Egypt requested clarification on this point.

Egypt noted that it had been recognised by the High Commissioner for Human Rights and through special debates that fact-finding missions and special sessions did fulfil Responsibility to Protect. However, Egypt considered that this took place in a larger context. These initiatives were not designed to fulfil the Responsibility to Protect; otherwise the Human Rights Council would not have had a special session on the Gaza Flotilla incident. Egypt considered that these measures might indirectly help in prevention and timely response. Egypt noted that most of the implementation of R2P was done through the Security Council, not the Human Rights Council. Egypt considered that this implied that R2P did not directly fall within the Human Rights Council’s mandate.

Egypt noted that the Secretary-General was finalising a 2012 report to the General Assembly. The Human Rights Council was a sub-organ of the General Assembly. Discussions on Responsibility to Protect were not finalised, and there were new concepts under discussion, including Brazil’s Responsibility While Protecting imitative. Egypt asked Mr Luck how the Human Rights Council, as a sub-organ, could be involved in a topic under discussion by a higher organ that had not yet agreed on the concepts. Egypt asked whether Human Rights Council discussions would pre-judge the outcome of General Assembly discussions.

In responding to comments from the floor, Mr Luck noted that Egypt’s question on Pillar II was important. Pillar II was the least developed conceptually, and probably operationally, of the three pillars. As to the role of the UN Development Programme, the World Bank, the Peace-Building Mission and others from a Responsibility to Protect perspective, Mr Luck considered that this was an area where the UN could contribute a lot. Mr Luck considered that the first step was asking the right questions: were the development policies pursued by a particular agency or a bilateral donor designed in a way to make atrocity crimes less likely, or to worsen divides in a country? Mr Luck considered that it was not always the level of poverty, but the differences in wealth between parts of society. Mr Luck noted that often violence was directed at a minority perceived (rightly or wrongly) as possessing political, social or cultural advantages.

Regarding the theoretical relationship between the General Assembly and the Human Rights Council, Mr Luck noted that the General Assembly had pronounced on the Responsibility to Protect. It accepted unanimously the 2005 World Summit Outcome Document. In 2009, the General Assembly passed a consensus resolution on further consideration of the issue. Mr Luck did not consider that there was any intent that that only the General Assembly could have consideration of the concept. Rather, that Member States and the UN organisation as a whole could consider the issue.

Mr Luck noted that the Secretary-General’s first two reports were addressed to the General Assembly. Because of the normative basis, it was important to bed the issue in the General Assembly. But since the 2011 report related to regional and sub-regional arrangements, the Secretary-General presented the report to both the General Assembly and the Security Council. Mr Luck considered that there might be aspects of the Responsibility to Protect that the Economic and Social Council might want to discuss, especially relating to Pillar II. Mr Luck considered that the more Member States involved and the more candid critiques received, the more refined and better the reports of the Secretary-General could become. Mr Lucks own approach – and he considered that this was also the Secretary-General’s approach – was to encourage dialogue.

Regarding the comments made by Cuba, Mr Luck agreed with the notion of sovereignty as responsibility. The Special Adviser to the Secretary-General on Genocide, Francis Deng, had created this concept. Mr Luck agreed that the Responsibility to Protect was about the four crimes and their incitement, and not other violations. Mr Luck noted that R2P was narrow in terms of what violations could be addressed, but that it was deep in the range of possible responses to address these violations.

Mr Luck said he was not aware of the cases cited by Cuba, where ‘hundreds of thousands of innocent civilians’ were killed in the name of the Responsibility to Protect. Mr Luck noted there had been a few cases where States had tried to expropriate the Responsibility to Protect for their own benefit.

Mr Luck noted that most of the critiques of the way that R2P had been implemented had been of the Security Council acted under the UN Charter. Mr Luck noted that the decisions of the Security Council were made by Member States under the Charter, and could not be second-guessed. Mr Luck noted that, if there were cases where the UN Secretariat had been selective in applying R2P, he would like to hear those.

Mr Luck was encouraged by Cuba’s comment that if the General Assembly came to consensus, Cuba would support it. The Secretary-General’s view was that the World Summit achieved that consensus, accepted by the General Assembly, and then the 2009 resolution confirmed it. Mr Luck considered that the framework of R2P already existed, and that the Secretary-General’s strategy had tried to clarify the concept in different terms. Mr Luck looked forward to Cuba’s collaboration in implementing the R2P framework.

The representative of Iraq asked a question to Mr Phuangketkeow, in light of his experience as a former President of the Human Rights Council last year. Iraq also recognised the presence of the current Human Rights Council President. Iraq asked whether the Human Rights Council was dealing with more political, rather than human rights issues. Iraq recalled General Assembly resolution 60/251 establishing the Human Rights Council to address issues related to humanity and human rights.

In response, Mr Phuangketkeow recalled that the mandate of the Human Rights Council was the promotion and protection of human rights. He noted that the focus of the Council’s work had been to pay greater attention to emergency situations, or potential crises. In these contexts, the political considerations would come into play because to arrive at such a decision was by nature a politicized process. Although Mr Phuangketkeow considered that this unavoidably resulted in more politicisation of the Council, the Council should continue to focus on constructive approaches such as technical cooperation and assistance, human rights education, and capacity building. These issues were important in the Human Rights Council’s mandate.

Mr Phuangketkeow noted that when the Human Rights Council dealt with the situation in Libya, there was a strong consensus and common purpose in the Council. This situation showed the importance of the Human Rights Council reacting quickly to preserve its credibility. Politics would always be part of the Human Rights Council because it was comprised of Member States which often held different views. However, having observed that Member States could increasingly engage in consultations and cooperation across regional groupings, Mr Phuangketkeow considered that it was possible to lessen the politicisation and ensure that the Human Rights Council could react in a credible way and a timely manner.

The representative of the International Coalition for the Responsibility to Protect (ICR2P) noted that it strongly supported the initiative of the Human Rights Council to devote increased attention to the Responsibility to Protect and to assess its capacity to assist States in protecting their populations from egregious threats to humanity. The Human Rights Council was a key institution for the implementation of this new norm, serving both as a forum for rapid consideration of potential threats, and authorizing a variety of preventive tools to assist Member States in protecting populations. ICR2P welcomed the statements presented by the panellists from governments on at risk country situations, the role of the Council in dispatching fact-finding missions and Commissions of Inquiry, as well as the critical role of Special Rapporteurs in gathering and assessing information, providing Pillar II assistance to Member States on responding to potential threats. ICR2P noted that the Commission of Inquiry authorized by the Human Rights Council to halt the threat to populations and prevent mass violence in Libya in February 2011 was an important early step taken by the international community to investigate and condemn atrocities, and was critical in assessing the needs of the population post-crisis.

ICRtoP considered that the Responsibility to Protect was grounded in the prevention of mass atrocities. Embedded in the commitment to prevent atrocity crimes was the obligation to stop future violence by assisting communities post-conflict and ensuring that perpetrators of these crimes were held accountable for violating international law. Individual governments, regional and sub-regional arrangements, UN bodies and civil society organizations played a crucial role in building capacity to prevent threats to populations, to focus on engaging in dialogue, supporting and assisting in the realization of structural reforms within security sectors and criminal justice systems, facilitating preventive diplomacy and promoting entrenchment of the Responsibility to Protect in national legislation. All of these actors could strengthen their ability to implement the Responsibility to Protect by examining the broad spectrum of tools available to protect populations and engaging in dialogue to assess best practices and analyse and reflect on country cases.

The International Coalition agreed that lip service was often given to capacity building and prevention. This goal was often discussed, but there was a lack of substantive action. Discussion usually focused on ‘reaction’ rather than ‘prevention’. ICR2P suggested that the General Assembly should once again focus on Pillars I and II following the focus on Pillar III in 2012.

ICR2P considered that the issue of double standards, selectivity and inconsistency was not the fault of the Responsibility to Protect framework. Rather, it resulted from issues of the Security Council’s working methods. In the long-term, ICR2P suggested that the Human Rights Council should contribute to a wider discussion in the General Assembly as to how to enhance Pillar I and II actions under Chapter 7 of the UN Charter.

ICR2P noted that civil society had been at the forefront of shaping the Responsibility to Protect, and would continue to provide an active voice both in Geneva and throughout the world. As the Human Rights Council continued to strengthen its commitment the Responsibility to Protect, civil society would be a constructive and enthusiastic partner. ICR2P hoped that the panel event would inform constructive dialogue on the norm as well as enhance the pledge by all States to protect populations from genocide, war crimes, crimes against humanity and ethnic cleansing.

The representative of the United Kingdom responded to the intervention made by Cuba. The UK considered that the comments of the Cuban delegation did not address the real problem that R2P sought to deal with: namely, situations where States mistreated their own citizens on a grand scale. Rwanda and Srebrenica were well-known examples. The United Kingdom considered that these situations could be prevented with the help of the international community.

The United Kingdom considered that the Human Rights Council should be mobilised to do more on the Responsibility to Protect. Coordinate with the General Assembly was important, but this should not prevent action by the Human Rights Council. The UK welcomed the participation of the Special Advisor to the Secretary-General, and considered that his views would be key to informing action by the Human Rights Council.

The UK considered that there were not sufficient best practice examples to illustrate the Responsibility to Protect. The Human Rights Council should therefore consider what it could add to the activities of other UN organs.

The United Kingdom considered that the Human Rights Council should continue to strengthen human rights monitoring mechanisms. Some examples of concrete actions might include mandating country-specific Independent Experts or Special Rapporteurs to regularly include statements on technical support for situations involving the Responsibility to Protect. Another possibility was a new Special Rapporteur or Independent Expert whose mandate would include gathering evidence of best practices for the Responsibility to Protect.

The United Kingdom suggested considering how the UPR could encourage States to prevent human rights violations contributing to responsibility to protect situations.

The United Kingdom suggested that the Human Rights Council should bear in mind two constraints: first, that the Responsibility to Protect sought to protect people from crimes that amounted to international humanitarian law violations. These did not fall within the Human Rights Council’s mandate. Second, in the current financial crisis, the United Kingdom noted the need to be careful about budgetary implications concerning the establishment of new mechanisms.

The representative of Armenia welcomed the opportunity to discuss and underline the urgency of the Responsibility to Protect. Armenia considered that the instigators that propagated intolerance set the grounds for violence. Armenia welcomed all efforts to prevent such atrocities.

Armenia noted that there were some cases where States ratified conventions with reservations, meaning that the conventions did not apply to specific populations. Armenia noted a good practice example of the cooperation between Armenia and the Armenian Diaspora.

The representative of the Asia Pacific Centre for the Responsibility to Protect recalled that, with the support of the Australian Government and in partnership with Chulalongkorn University, Thailand, it had hosted a conference in May 2012 on UN‐Asia Pacific Strategy and Coordination on implementing the Responsibility to Protect. The Asia-Pacific Centre highlighted three outcomes of this conference pertinent the discussion on giving practical effect to Pillar I and Pillar II of the R2P framework with respect to the mandate of the Human Rights Council.

Firstly, a key issue raised at the conference centred on bridging the conceptual divide between prevention and reaction, to allow for earlier, more context‐specific engagement before crises break out. The Responsibility to Protect was often invoked late in the conflict cycle when violence had already escalated to the brink of atrocities. Yet mass atrocity crimes tended to occur in situations of long-term, lower grade, but quite severe human rights abuses. The Human Rights Council, and indeed regional and State human rights institutions were well placed to draw attention to incidents of severe human rights violations that heralded more systematic violence. The Human Rights Council could incentivise preventive action by including specific reporting requirements on measures taken to avert the four crimes and violations associated with R2P in the UPR.

Secondly, the conference had considered that part of the reason that R2P was met with scepticism in the Asia Pacific region was due to a perception that the Global North was more animated by the coercive, reactive end of R2P (Pillar III) than committing resources to assist States to build protective capacity (Pillar II). Pillar II—the international community’s responsibility to assist States—was the least understood and invoked component of R2P. This was linked to the lack of clarity on the specific measures and priorities States should adopt to uphold their primary protection responsibilities (Pillar I). The Asia Pacific Centre considered that clarity on Pillar II would be aided by establishing a global repository of the actions international institutions and individual States might take to fulfil the responsibility of assistance. This entailed not only documenting the range of early preventive measures and mechanisms available to human rights institutions, but also an analysis of whether and how these measures have slowed down or curbed the tide of violence in specific situations. This exercise might move discussions beyond anecdote to evidence‐based analysis of the impact of technical assistance and training in the field of human rights on State and community resilience to mass atrocity crimes.

Finally, the conference noted that there was no easy or immediate path to realize the promise of R2P, but it was aided by creative government investment in genocide and mass atrocities prevention. The conference highlighted outcomes of some of the fourteen two‐year research projects supported by the Australian Government’s 2009 $2million R2P Fund. The Australian government’s investment in long-term, in‐depth research had fostered new and deeper knowledge across all three pillars of R2P. The R2P Fund had been an invaluable initiative for grounding dialogue and training activities on mass atrocities prevention in evidenced‐based research, and for expanding the stakeholders engaged in implementing R2P in the Asia Pacific region.

The Asia Pacific Centre noted the importance of regional mechanisms, and their interaction with processes in New York and Geneva. It was also important to consider practical implementation at national level.

The representative of Pakistan noted that that the Human Rights Council did not have universal membership. Pakistan considered that this issue should only be pursued at the General Assembly, which was the only body with universal membership. Pakistan questioned where the funding for the Human Rights Council to consider R2P would originate. Pakistan would oppose the receipt of funding from specific countries, rather than from the UN general budget.

Secondly, Pakistan noted that there had been references to the situations in Rwanda and Libya, but not the situation in Israel. This indicated selectivity and double standards. Unless this could be overcome, Pakistan would continue to have concerns with this approach, which Pakistan considered was a means of external interference into pre-selected situations.

Closing remarks from panellists

Dr Törő highlighted the example of the European Union, which was the largest donor of development assistance (combined aid budget of the EU and its Member States) in supporting various countries. Dr Törő considered that it would be a promising aspect of the work of the Human Rights Council that, when it detected dangerous tendencies in the human rights in some countries the means of assistance by the EU could be used to influence or usefully change the conditions in those states in support of the central role of the Human Rights Council. Similarly, other cooperative bodies and partners of the UN could be ready to assist in this field. This would help to place the Human Rights Council in the focus of all these efforts, within the universal system of the UN but also outside this system with other regional and international bodies.

General Agwai reiterated the need to work with the regional bodies, making sure that there was local ownership. It was important to provide a structure whereby countries could be successful in exercising their Responsibility to Protect.

Mr Cancela noted the primary need to agree on the operationalisation of this concept. He noted that he had not heard a single voice saying that the international community should not do its utmost to prevent genocide, war crimes, ethnic cleansing, or crimes against humanity. It was agreed that Responsibility to Protect was an ethical imperative that reflected evolution in the history of humankind.

Second, Mr Cancela noted that Responsibility to Protect was essential for strengthening the multilateral system. Mr Cancela believed that the multilateral system was the only source of legitimacy and the bedrock of rule of law. Therefore, concerted, consensual multilateral action, within the framework and according to the principles of the UN Charter, was the best way to prevent unilateral and unlawful action.

Mr Phuangketkeow recalled the panel’s objective of discussing Responsibility to Protect in the context of the Human Rights Council. The Human Rights Council was not the place of conceptual debate, so it would not be appropriate for the Human Rights Council to develop the R2P concept. However, the Human Rights Council could help to implement R2P in a practical way. Mr Phuangketkeow encouraged participants to consider how the Human Rights Council could do better in discharging its mandate, of preventing real crises. Mr Phuangketkeow noted that when real crisis occurred, it was beyond the means and capabilities of the Human Rights Council to deal with the situation any longer. By that point, the situation would require more coercive measures. Mr Phuangketkeow noted that all mass atrocities originated from violations of human rights. There was therefore scope to discuss the work of the Human Rights Council and how it discharged its mandate in connection with the discussion on R2P.

Mr Luck noted Pakistan’s comment on double standards. Mr Luck noted two innovations in the Secretary-General’s approach that were not in the outcome document. Firstly, if States occupied territory, they should have the same obligations as in their normal territory. Secondly, that non-state actors and armed groups should have the same obligations. The Secretary-General had not seen situations invoking R2P in Israel but his office continued to monitor it and other situations. Mr Luck had advised the Permanent Representative of Israel in New York that the Secretary-General would include a clause on occupied territories in his report. The Permanent Representative had agreed that this was appropriate.

Mr Luck welcomed further the dialogue with Cuba and the members of the joint statement.

Professor Evans reiterated Mr Phuangketkeow’s suggestion that the Human Rights Council had a role to play in the practical implementation – rather than the conceptual debate – of R2P. To those minded to continue the conceptual debate, Professor Evans recalled that the Responsibility to Protect was different from the concept of humanitarian intervention. Humanitarian intervention was no longer being advocated. What was now agreed was a more nuanced concept of the Responsibility to Protect.

Professor Evans noted that the international community had been shamed by its inability to come to terms with the need to condemn and prevent mass atrocities. This should not be allowed to happen again. Professor Evans called on participants to recognise the common ground of R2P. There would be continuing disagreement, particularly in the difficult situations where prevention had failed. But this should not get in the way of the recognition of situations where there was a common ethical imperative to act.