128th IPU Assembly, Quito

IHL Panel on R2P

Speaking notes by Tina Park

Good morning everyone,

I would like to begin by thanking the IPU committee for convening this panel on the IHL dimension of R2P. It is a privilege to be here today for such a timely and important discussion. The parliamentarians around the world have important roles to play in making our international humanitarian commitments into a reality at home, so I thank all of you for your interest and support on R2P.

Given the expertise of other panel  members, I would like to focus my presentation on clarifying some conceptual issues concerning R2P so that we can start from a common ground as we examine some key similarities and differences with the IHL and R2P.

 

1)    What is R2P?

Responsibility to Protect refers to the commitment made by the 150 heads  of state and government in 2005 at the World Summit to protect population at risk from these four specific crimes: genocide, ethnic cleansing, crimes against humanity and war crimes.

R2P is a relatively young international protection norm because it originated in the 2001 report of the International Commission on Intervention and State Sovereignty, which was sponsored by the Canadian government.

The ICISS report on R2P in 2001 was an attempt to create a new consensus on humanitarian intervention to move away from political paralysis in the post-Cold War era, such as what we saw in the 1994 Rwandan Genocide.

Another key aspect to note about R2P is that it is an evolving principle. The paragraphs 138,139 and 140 of the 2005 World Summit Outcome document narrowed down R2P significantly from the 2001 report into four specific crimes for political consensus. These R2P paragraphs were significant not only because of unanimous endorsement from the heads of state and government but also because it clarified when, how and under whose authority the international intervention should occur. It is important to remember that R2P is not an enemy of sovereignty. R2P begins from the premise of sovereignty as responsibility.

 

2)    The Three-Pillar approach of R2P

In January 2009, the UN Secretary General Ban Ki Moon released a report on the implementation of R2P based on three pillars. These pillars are to be applied simultaneously rather than in sequence depending on the individual circumstance of the crisis.

 

Pillar 1: Every state has the responsibility to protect its population from four mass atrocity crimes, namely genocide, war crimes, crimes against humanity and ethnic cleansing.

 

Pillar 2: The wider international community has the responsibility to encourage and assist individual states in meeting that responsibility (capacity building and international assistance)

 

Pillar 3:  If a state is manifestly failing to protect its populations, the international community must take appropriate action in a timely and decisive manner in accordance with the UN Charter.

Following this, the first UN General Assembly held a debate on the R2P in July 2009. The UN member states overwhelmingly reaffirmed the 2005 commitment and passed a resolution taking note of the report by the Secretary General.

Since then, the SG has released three additional reports in the summer of 2010, 2011 and 2012 for the General Assembly dialogues. These reports emphasize how global-regional collaboration is important for implementing R2P.

 

3)    Responsibility While Protecting

The Brazilian concept of RwP articulated in 2011 makes an important contribution to the protection of civilians.  It focused on the need to improve the monitoring and assessment of the UNSC sanctioned use of force, raised concerns about the sequencing of three pillars and emphasized the need to exhaust all peaceful means before considering the use of force.

My key point is this: the conceptual evolution of R2P, which has travelled at an incredible speed in just over a decade, is an on-going process and through continued dialogue and debate, as well as real life application, we can help solidify the intellectual and practical foundations of this emerging norm.

 

4)    Controversies surrounding R2P

Precisely because of its young age, there have been concerns voiced by member states about the military aspect of R2P (use of force) and selectivity in implementing R2P. We must remember that there are many other non-military tools available before we move to the use of force. It is only when all other means have been exhausted and military intervention becomes necessary that we move on to the use of force. We need to move away from the permissibility of force into early warning system and prevention at national and regional levels. We know that intervention will almost always be controversial, as you have seen over and over with the deadlocks at the Security Council.

 

5)    R2P and International Humanitarian Law

Now, let me move into the relationship between R2P and IHL.

The first point to remember is that much of the normative roots of R2P are already firmly embedded in international law.  The four crimes covered under the R2P paragraphs in 2005 are recognized as international crimes, entailing responsibilities under treaty and customary international law for states to prevent and punish.

In particular, war crimes is where R2P meets IHL, in promoting protection of civilians in an armed conflict. Both R2P and IHL fully respect the UN Charter and emphasize the prevention aspect through education, training and capacity building.

The key difference is that IHL is codified under customary law and is legally binding while R2P is an emerging norm, endorsed relatively recently by the UN member states. R2P does not have the degree of detailed provisions found in the Geneva Conventions and additional protocols.

The IHL is also much older as a protection norm as its point of origin dates back to 1864. R2P is just over a decade old.

The spectrum of crimes covered is also different. While the IHL applies only to armed conflict, R2P applies to four crimes that may or may not occur during an armed conflict.

We should note, as well, that R2P and IHL have different targets of protection. The IHL applies to combatants and civilians (ie the sick, POW, medical staffs) as well as non-human objects such as hospitals, ambulances, etc. R2P applies to populations at risk as they relate to four crimes. The authors of R2P consciously moved away from the language of citizens and civilians to afford protection to all population.

Lastly, on the enforcement issue: the IHL is far more developed and authoritative under international law and international protection regime in terms of enforcement. R2P does not have the legal framework of its own, despite the fact that it draw upon much of the existing legal norms such as the IHL, Genocide Convention, and the Rome Statute of the ICC. Because R2P is not yet a binding international law, much of the enforcement issues still need to be developed. In this light, the upcoming resolution on R2P by the IPU marks an important turning point in terms of national implementation of R2P. As a norm of soft law in progress, state practices will affect the evolution of R2P, as well as context and status in international law. This is where your role as parliamentarians in your home country becomes extremely important.

(Feedback during QP)

1) Establish a focal point within the national government for R2P-related matters

Ø The R2P Focal Points is an initiativelaunched in 2010 and led by the governments of Ghana, Denmark, Costa Rica, and Australia in association with the Global Centre for the Responsibility to Protect.

Ø It calls upon national governments to appoint a senior-level government official to facilitate the creation of national mechanisms, such as early warning sytems, for mass atrocity prevention and effectively respond to imminent or actual mass atrocities.

Ø At national and regional levels, there are compelling reasons to identify at-risk scenarios. In many cases, a state does not suddenly become genocidal – it is generally an incremental practice, often requiring collaboration between individual and collective actors.

Ø The Focal Points initiative recognizes that regional players are very important in the implementation of R2P and is particularly useful for engaging with all three pillars of R2P. It also seeks to promote international cooperationthrough a global network of R2P Focal Points.

Ø There are currently 17 countries that belong to R2P Focal Points (namely Argentina, Australia, Belgium, Costa Rica, Czech Republic, Denmark, France, Ghana, Guatemala, Italy, Ireland, the Netherlands, Sweden, Switzerland, the United Kingdom, the United States and Uruguay). Recently, Slovenia and Cote d’Ivoire expressed their intention to join the R2P Focal Points.

Ø At the second annual meeting of the network of National R2P Focal points, the participants exchanged ideas on how to better coordinate future efforts to increase capacities to assess risks, warn against, prevent and halt mass atrocities, including through national outreach and educational efforts.

Ø The R2P Focal Point can be extremely useful in integrating atrocity prevention within national policy and applying R2P lens to on-going internal and external policy development. It could serve as a ‘hub’ for analysis, policy input and intergovernmental coordination on all R2P-related issues and I strongly urge that you encourage your national government to take part in this important initiative.

 

2) Education: Generating R2P knowledge base is important

Ø Despite its enormous significant in international relations, R2P is still not properly understood and effectively employed in domestic political lexicon in many countries.

Ø For R2P to move beyond being a topic of academic debates or political rhetoric, we need your help with the educational aspect of R2P.

Ø The national parliaments can help develop, translate and share educational materials on R2P in local languages and educate the public and fellow politicians on R2P.

Ø I urge you to call for action at all levels of government for R2P scenarios and hold governments accountable (and speak out when R2P is misused or abused);

Ø You can also help by providing institutional and financial support to research groups and civil society networks so that the young minds can also engage with R2P.

Ø It is important that R2P does not become a partisan issue. Parliamentarians should make every effort to support higher education institutions when it comes to human rights education and actively sponsor local and regional civil society groups on R2P research.

Ø My own centre, the Canadian Centre for R2P, was born precisely because we recognized a missing link between the leadership role that Canada once played in the formation of R2P and the lack of educational and research efforts on this enormously important principle.

Ø We are now based at the Munk School of University of Toronto and made up of about 50 undergraduate and graduate students analyzing various aspects of R2P. One of the founding patrons of our Centre is the Honourable Bill Graham, a former MP of Rosedale Toronto riding and a former Minister of Foreign Affairs and Defense in the Canadian government.

Ø Thanks to the enthusiastic works of our analysts, we have recently launched R2Plive.org, a real-time, online, global porter of R2P-related matters to be made available in all UN languages. Many other groups, such as the Global Centre for R2P offer excellent databases to track the latest developments on R2P in various realms of government, UN, civil society, media.

Ø More effort needs to be made at the national and regional levels to ensure that there is a concrete knowledge base for R2P that is accessible to anyone interested.

 

3) ADVOCACY: As members of parliaments, you are uniquely suited to engage with the advocacy aspect of R2P.

Ø You can make reference to R2P in policy reports and statements and other government publications

Ø The 67^th session of the UN General Assembly last month saw 24 countries referring to R2P directly in their statements. Of those, 17 states affirmed their strong support for R2P and called for its implementation.

Ø In response to the ongoing crisis in Syria, 117 countries expressed concern for the plight of civilians facing mass atrocities. The vast majority called upon the UN Security Council and international community to do more to help prevent further mass atrocity crimes and protect populations at risk.

Ø I urge you to advocate for strengthening of national and regional institutions to protect populations from mass atrocities and strengthen national institutions and government capacity for protecting populations in peril.

Ø R2P Ministerial Meeting: Just about a month ago, the 5th Annual Ministerial Meeting on R2P took place. It focused on how we can operationalize the preventive dimension of R2P, and discussed full range of preventive options, including long term structural measures such as good governance, human rights, the promotion of socioeconomic development and the national R2P Focal Points initiative.

Ø National mechanisms for implementing R2P must involve both state and non-state actors.

Ø You can convene regular dialogues with civil society groups working on R2P at municipal, regional and national levels and adopt relevant legislature at local level

Ø You can help building a constituency of support for R2P and working closely with the local media to generate public awareness.

Ø You should also mediate, negotiate and resolve disputes at local levels and encourage disputing parties to resolve crises in a non-violent manner and support and enhance domestic and regional justice systems by monitoring the work of and providing legal support to judicial institutions;

Ø A key challenge in the implementation of R2P is the gap between coordination and response in conflict prevention and resolution. This is where partnership really matters and cooperation between national parliaments will prove instrumental. Regional organizations and networks should play active role in the implementation of R2P, particularly given the prevailing concerns about the“western” face of R2P.

Ø Let me give you an example: the Regional Policy Forum on R2P was held in June this year in Nigeria. The main goal of this forum was to raise awareness of R2P principle within the region and to examine existing ECOWAS (Economic Community Of West African States) policies and institutions for protecting populations against mass atrocities.

Ø The Forum also aimed at identifying frameworks, institutions, and practices within ECOWAS for prevention and effective response to mass atrocities. This regional forum brought together about 60 international, regional, and national participants from public and private sectors, UN, regional organizations, the diplomatic community, as well as national and international civil society organizations.

Ø Africa has made commendable progress in the implementation of R2P through Article 4 of the African Union Charter and continued efforts of ECOWAS to collaborate with international institutions.

Ø More effort needs to be made to define the kind of relationship between national, regional and international actors in the implementation of R2P.

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Conclusion

Since our collective pledge to ‘never again’ fail in our responsibility to protect the vulnerable populations, we have repeatedly failed in the face of mass atrocities taking place around the world.

But with every failure, I believe we have learned a different lesson.

Since its inception in 2001 and the endorsement made by the leaders of the world in 2005, R2P has traveled a long journey in the realm of international relations, becoming an emerging norm in just over a decade.

This is a remarkably fast process considering how long it takes for most principles to become accepted in IR.

We also desperately need new champions and new leaders for R2P from Africa, Middle East, Europe, Asia and South America so that R2P does not remain the rhetoric of powerful western countries.

To this date, we frankly do not have a clear “success story” of implementing R2P. The diplomatic intervention in Kenya’s post-election crisis is often cited as the most successful case to this date. In the future, R2P will need to prove its usefulness and strength in cases that require more than the diplomatic efforts and be willing to use force when absolutely necessary. With the recent uprisings in the Middle East, we saw dire situations and desperate need to apply R2P. Yet, vulnerable populations in Syria are being killed every day, even as we debate here.

R2P, let me emphasize again, is most effective at the prevention level and the use of force is the last resort. R2P is not synonymous with the regime change we saw in Libya and we should not let that stop us from further considering R2P in times of crisis.

We have to listen carefully to the voices of critics and dissenters when it comes to the scope of R2P, while also remembering that R2P is already well-entrenched in the international legal regime.

Achieving conceptual clarity on R2P across regions is absolutely necessary before R2P can become an operational norm.

We have to work hard at the municipal, national and regional levels to solidify the regional mechanisms for prevention and response when it comes to mass atrocities. The gap between international law and R2P is actually smaller than often imagined because the four crimes covered under R2P as endorsed in 2005 are already well-entrenched in the existing international legal regime.

We have to keep in mind that implanting R2P is an incremental and evolving process, measured by individual nation state’s priorities and existing capacities at the regional and global level.

Though each situation will call for a different set of priorities and action, R2P’s three-pillar framework has implications for national policy that cuts across a diverse spectrum of governance structures.

Institutions critical to ensuring domestic protection, building capacity and responding as appropriate to international atrocity threats include not only the foreign ministries but also interior ministries, security and justice structures, legislative bodies, economic management authorities, foreign assistance bureaus, to name only a few.

Most importantly, R2P faces some serious implementation challenges before it can become an operational doctrine.

The on-going atrocities in Syria is a case in point of how problems of the Security Council veto power, coordination between the UN and regional actors, and the lack of hard-power military forces and domestic political will, could interfere in the implementation of R2P.

Over 50,000 people have died in Syria’s uprising. The Human Rights Watch said this morning that Syria’s air force is continuing to drop cluster bombson towns across five governorates despite the Syrian army’s denial that it is using them.

More than 100,000 Syrian refugees have registered in Lebanon, according to the UNHCR. Despite the rapidly rising death toll, international powers are stuck in a diplomatic stalemate. Western powers and Gulf Arab states back the opposition, while Russia, China and Iran are backing Assad.

The UN is prepared to send peacekeepers to Syria if a ceasefire can be negotiated by international envoy Lakhdar Brahimi, but has not indicated how many and when.

The death toll in Syria is staggering and the destruction is reaching catastrophic proportions. The civilians are being killed every day. Large-scale human rights violations, including torture and execution of prisoners are taking place. Many Syrians are trying desperately to escape, invoking on our responsibilities under refugee law, humanitarian law, human rights law, and international criminal law.

The situation in Syria is calling for desperate help from the international community. The intervention from the international community can only be effective if we all pull in the same direction and R2P can be used as a tool for mobilization. We all share the responsibility in extending protection to population at risk.

Rwanda’s Minister of Foreign Affairs declared that despite the long distance between Kigali and Damascus, “Rwanda and Syria share the same experience.” We must stop another failure of humanity take place in front of our watch.

There is no guarantee that our aspirations to move R2P from rhetoric to reality will succeed in the foreseeable future. But as our UN Secretary General put it so powerfully, our first responsibility is to give it a try.