R2P Framework Relevant to Failed States

Whose Responsibility To Protect? War and Peace

In answering whether the Responsibility to Protect (R2P) is inherently state-centric and how it relates to weak or failed states, it is important to explain the background and composition of the practice. Even though the very definition of R2P relies on the state’s own responsibility to protect its populations from the four crimes and violations of genocide, war crimes, crimes against humanity and ethnic cleansing, the emerging norm includes comprehensive measures that explicitly relate to weak and/or noncompliant states. The general foundation for these measures is laid down in paragraphs 138 and 139 of the 2005 World Summit Outcome Document1 which describe how the international community has agreed to help states protect their populations and if necessary, due to a manifested failure of a state, take collective action to prevent and halt the aforementioned crimes and violations. A more detailed approach concerning appropriate measures is found in the three-pillar approach suggested in the United Nations Secretary Generals’ 2009 report “Implementing the Responsibility to Protect,” which is an elaboration of the commitment made by the world leaders in 2005.

R2P is a new international security and human rights norm that has emerged to address the international community’s failure to prevent and stop genocides, war crimes, ethnic cleansing, and crimes against humanity. The term originated in the International Commission on Intervention and State Sovereignty (ICISS) report2 that was drafted in 2001 as a response to then Secretary-General Kofi Annan’s pleas to the international community to not let absolute sovereignty impede efforts to protect people from the gravest violations of human rights. The dilemma, as Annan saw it, was that the collective human conscience could not allow for another Cambodia or Srebrenica, but that military interventions had also been unsuccessful in the past, as exemplified by the failures and controversy of Rwanda and Kosovo. An alternative and more refined approach was needed. The Canadian government took up the challenge and established the International Commission on Intervention and State Sovereignty. Following the reports by the High-Level Panel on Threats, Challenges and Change and Kofi Annan’s UN reform report (“In Larger Freedom” which recommended that governments adopt the Responsibility to Protect), governments unanimously embraced the principle of R2P3 in paragraph 138 and 139 of the World Summit Outcome Document. This was an immense achievement, at one of the largest gatherings of world leaders in history.

In January 2009, Secretary General Ban Ki-moon expanded on the commitment made in paragraph 138-139 in his own report entitled “Implementing the Responsibility to Protect.”4 He articulated a three-pillar strategy that emphasized the protection responsibilities of the state, international assistance and capacity building, and timely and decisive response.

 

The First Pillar outlines how the responsibility to protect ones populations is part of a sovereign state’s mandate, and that this obligation already is entrenched in treaty-based and customary international law. The state carries the primary responsibility to protect, and the role of the international community is envisioned as supplementary.

The Second Pillar focuses on capacity building of states and more specifically, on what the international community can do to assist states in meeting their responsibilities. Important aspects of the Second Pillar include mechanisms of dialogue between all actors to the conflict, standing or standby rapid-response civilian and police capacity to address emergency situations; preventative deployment of UN and regional forces in cooperation with regional organizations; and expanding development assistance on security reform and the rule of law.

Pillar Three has been seen as the most controversial aspect of the Pillars, but is absolutely necessary for the credibility and balance of the concept. In his report, Ban-Ki-moon reiterates that the Third pillar includes both coercive and non-coercive measures. Possible actions include but are not limited to: diplomatic engagement and pressure with all actors in the conflict, authorizing fact-finding missions to assess the situation on the ground; referrals of individual (state or non-state) to the International Criminal Court, targeted diplomatic sanctions; the restriction of the flow of arms and military coercion.

For the purposes of this response, we are using the term “weak” state or “failed” state to convey the lack of function or existence of a state, respectively. A failed state is generally defined as a state that does not meet basic responsibilities as a sovereign state and/or lacks the monopoly of the legitimate use of force within its territory. Historically, basic responsibilities of the sovereign state have included establishing rule of law, institutions to enforce and interpret these laws, providing a minimum of state services, and maintaining control over its territory. Current indices of weak and failed states, such as the Fund for Peace’s Failed State Index or Brookings’ Index of State Weakness in the Developing World, include a range of indicators relating to the social, political, economic and security sectors.

The three-pillared approach provides a useful framework to deal with the commission of atrocity crimes committed by states or non-state actors in failed states. While the primary intention of Pillar One is to further encourage states to fulfill their existing responsibilities by abiding to long-standing obligations under international law, Pillar Two is better suited to dealing with cases of weak or failed states. As the Secretary General points out in his report, “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 responsibility to protect, measures under pillar two could play a critical role…”

Among the many initiatives, R2P’s capacity-building measures under Pillar 2 call for:

Cooperation with public diplomacy efforts of the UN (including UNICEF, OHCHR, UNDP, UNHCR), regional, sub-regional mechanisms which aim to build capacity of states to fulfill their responsibilities.Creating a standing or standby rapid-response civilian and police capacity to address emergency situations, which are particularly useful in situations where the state is unable to exercise control (there are existing proposals from civil society and governments).Engagement in preventive deployment through collective military assistance (or consent-based peacekeeping) to help the state address non-state actors’ crimes relating to the R2P to ensure a degree of stability and security on the ground, and in extreme cases to restore the state’s sovereignty.Encouraging donors to support national programs to advance capacities for prevention and protection from R2P crimes.Assistance to the strengthening of the State’s security sectors to provide stability for all populations.Engaging donor countries in increasing rule of law assistance to states.

In the case that international assistance and capacity-building fail to be sufficient or appropriate to prevent and halt mass atrocities, measures under the third pillar may come into play, such as:

Non-coercive options such as diplomatic pressure with actors involved in the conflictAppointing fact-finding missions by the General Assembly, Security Council or the Human Rights Council to report on violations of international law (as well as special rapporteur or advisors)Refer individuals (state or non-state) to the International Criminal Court which deals with individual responsibilities for mass atrocity crimes to put an end to impunity and deter further crimesPromote targeted diplomatic sanctions (i.e. travel, financial transfers, luxury goods and arms)Measures to restrict the flow of arms such as arms embargoes Civil society can also influence individual, public and private investors to withdraw foreign direct investment involved in providing finds to state or non-state actors committing atrocitiesThe possibility of military action in extreme cases against state or non-state actors by the UN and/or regional bodies 

The R2P framework offers several measures available to the international community to assist the state to strengthen its capacity and ability to protect its population, or to intervene with peaceful or coercive measures to halt state or non-state actors from committing mass atrocities. Thus, there is no inherent contradiction within the norm in its emphasis on the primary responsibility of the state and the ability to assist or intervene in failed state situations. 

 

October 7, 2009

1. United Nations General Assembly. “2005 World Summit Outcome Document,” A/60/L.1: Par. 138-139 (September 15, 2005).

 

2. International Commission on Intervention and State Sovereignty. “The Responsibility to Protect,” Report (December 2001). 

3. United Nations Department of Public Information. “2005 World Summit Outcome: High-Level Plenary Meeting.” Fact Sheet (September 14-16, 2005).

4. United Nations General Assemby. “Implementing the Responsibility to Protect: Report of the Secretary-General.” A/63/677 (January 12, 2009).

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