R2P Before atrocity
R2P Pillar One duties, regarding the protective obligations of the State, are always in effect. States must ensure that neither they, nor agents sponsored or directly influenced by them, are visiting or risking atrocity crimes on their populations.
These on-going responsibilities are hard, determinate law. They are located in the jus cogens laws (peremptory laws from which derogation is not permitted) of IHL, un Secretary-General Ban Ki-moon, addreSS on r2P, 18 January 2012.
“Today, I ask you to join me in making 2012
the Year of Prevention.”
IHRL, customary international law and the Genocide Convention. Additionally, States must be vigilant in protecting their populations from attacks by third parties.
Even in times of peace and stability, R2P requires that States work to develop institutions of the rule of law, cultivate civil society organizations, mitigate ethnic and sectarian tensions and reform security sectors to guarantee future unrest cannot foment into atrocity.
The State also has pre-atrocity R2P Second Pillar duties to use its sway to prevent forces under its influence from committing atrocity crimes in another country and on another people. As the International Court of Justice has determined, this is a legal responsibility of international law that States must be vigilant in obeying.32
Continuing on the international plane, States – often through regional organizations – have on-going peacetime Pillar Two duties to aid other States in developing their capacities for minimising the risk of atrocity. These duties may include, for instance, building regional conflict resolution mechanisms and playing a role in consent-based preventive deployments of peacekeepers. These peacetime Pillar Two responsibilities can also include building capacity for contributing to potential future peacekeeping operations – including training troops and police units in the difficult and often unfamiliar task of civilian protection.
A second type of Pillar Two responsibility is the obligation to contribute to and promote regional and worldwide early warning mechanisms for detecting peoples at risk of being subject to atrocity crimes – ideally so that early, preventive action can take place. This duty increases in urgency as the risk becomes more real; the need for accurate information regarding the nature and extent of threats becomes more important than ever once atrocities have started.
Some Pillar Three responsibilities can manifest before atrocities have crystallized; for instance, regional
32 See below §4.2.c.
organizations and UN organs may condemn agents responsible for inciting violence or hate-crimes, and warn them about the possible consequences – legal and otherwise – of their continuance down this path.
R2P During atrocity
Atrocity crimes are distinct from other violations of IHL or IHRL inasmuch as they are an intentional policy of an armed party, and occur on a massive scale. The conditions for recognition of an atrocity crime are thus much more onerous than mere war crimes or violations of human rights, making atrocity crimes comparatively much rarer. That said, mere ignorance of atrocity does not dissolve R2P duties: States are obliged to act when they know or should have known that atrocities were occurring.33
Once atrocity crimes are imminent or actually being committed, further Pillar Two duties emerge. History has shown repeatedly – in Rwanda, Bosnia-Herzegovina, East Timor and Darfur – that it is possible to obtain executive consent from a State for the deployment of UN peacekeeping and protective operations, even as elements linked to the State are planning and committing atrocities. The Pillar Two duties here are to politically support, possibly through regional organizations, the eliciting of State consent to such robust peacekeeping operations, and to play a role – so far as means allow – in the deployment of such operations. Once forces are deployed, such peacekeeping operations will have duties to use such powers as are at their disposal to prevent or ameliorate mass violence against civilians.34
Pillar Three responsibilities will require the Security Council to play its role in adjudicating whether coercive measures
33 Louise Arbour, “The Responsibility to Protect as a Duty of Care in International Law and Practice,” Review of International Studies 34.3 (2008): 445-58.
34 Duties here may also include ensuring that the peacekeeping operation does not go beyond its mandate for quelling violence (“mission creep”). See Brazil, Concept Note:
Responsibility While Protecting: Elements for the Development and Promotion of a Concept (New York: United Nations, 2011).
not involving the use of force – such as arms embargoes, assets freezes and targeted sanctions – will prove sufficient, or whether military means should be employed. Regional organizations also play a role in this determination, as the Security Council increasingly takes their input as a key factor in its decision-making. These duties of judicious and good faith adjudication for the Council and regional organizations are political, not legal. Ultimately, if as a last resort military action is required, then some member States will need to shoulder the responsibility to allocate military assets and personnel to UN-authorised operations. R2P does not allow unilateral action without UN authorization, so member States only have Pillar Three responsibilities to directly prevent atrocities after the Security Council has authorised such a response.
R2P After atrocity
In their original report, ICISS advanced a tripartite structure for R2P in terms of the responsibility to prevent, to react and to rebuild. This last obligation emerges once atrocities are halted. In most cases, the responsibility to rebuild will parallel the responsibilities before atrocities crystallise, but they will have greater urgency and will need to be executed in a less permissive environment. Peacebuilding, the development of rule of law and civil society institutions, security sector reform and the disarmament, demobilization and reintegration of combatants will all be necessary to ensure violence does not again flare up along previous fault lines. The establishment of institutions of governance and the rule of law, including an effective justice and corrections system, is crucial at this juncture. In particular, peacekeepers and transitional authorities need to be alert to the risk of atrocities being committed by the victims of the previous conflict against populations associated with those who persecuted them. Finally, bringing to justice genocidaires and war criminals is a key part of R2P that occurs in the wake of atrocity crimes, as are restorative and transitional justice mechanisms, such as truth and reconciliation commissions.
other states Peacekeeping
operations nation state
security council
PoSt-conflict imminent
atrocity violence to
civilianS armed
conflict Pre-conflict
Explanatory Text Figure 3: Timeline of Main Protective Responsibilities for R2P
» The timeline is not strictly sequential:
in particular, Violence to Populations and Atrocity can occur before (and indeed precipitate) Armed Conflict.
» Earlier activities are not superseded by later ones. For example, even when Pillar Three intervention is required under Chapter VII, tasks of mediation and good offices do not dissolve. To the contrary, they acquire an even greater significance.
» Different aspects of the Timeline will be appropriate in some situations but not others. As always, a pivotal question is the involvement of the State in the threats of atrocities to populations. If the State is directly committing atrocities through its regular military forces, then peacekeeping will not be an option.
On the other hand, if atrocities are being committed exclusively by actors opposed to the State, then the involvement of the UN Security Council and its Ch. VII powers will not be as necessary, as the State itself will be likely to welcome international support.
Peacetime
BuildinG caPacity Prevention reStraininG tactical
Protection StrateGic
Protection PeaceBuildinG
Develop early-warning capacities
Encourage civil society institutions Regional
organizations un secretariat
Conflict resolution processes Consider PKO
potential
Advise Security Council Mediate with state
Call for SC Action Implement SC
resolutions
Support state in rebuilding Economic Support
to rebuild state Promote Protective
Environment Facilitate State
institutions
Implement SC resolutions inc.
possible use of force Robust strategic
protection Consider Ch. VII Military Options
Contribute to PKOs Robust tactical
protection Consider Ch. VII
Sanctions Refer situation to
ICC
Use influence to prevent atrocities Presence & Patrol Political Process
Restrain state forces
Rebuild democratic and justice institutions Disarm, demobilize
and reintegrate combatants Rebuild trust:
reconciliation
Warning/
Condemnation Expand PKO POC
mandates
Build civil society institutions Ratify Genocide
Convention
Monitor hate-crimes Risk analysis
Consider protection PKO Use influence over
non-state allies Consent to protection PKO Rule of Law
Institution-building Human Rights Implementation Facilitate Civil
Society
Seized by situation Consider POC PKO
figure 3: Timeline of Main Protective Responsibilities for R2P