This report analyses the responsibility to protect from a legal and rights-based perspective. It shows that the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity is rooted in existing International Human Rights Law (IHRL) and International Humanitarian Law (IHL). The clause on the responsibility to protect adopted by consensus by the 2005 World Summit constitutes an important commitment towards implementing these universal rights and obligations which are lacking enforcement and continue to be violated, especially in armed conflicts.
The many human rights treaties containing strong protection obligations include the two human rights covenants of 1966: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as numerous human rights treaties with a more limited focus which have been ratified by most countries of the world. They contain provisions reflecting customary law and voluntarily undertaken binding treaty obligations. With the high number of ratifications of such instruments as the Covenants, the Convention on Genocide, CAT, CRC, CEDR, as well as the universal ratification of the 1949 Geneva Conventions, state parties have been put under concrete obligation to implement these. If taken seriously and conscientiously implemented at the national level, those instruments could have prevented most of the atrocities committed and helped to address others effectively, if necessary with the assistance of the international community.
Protection of the individual against atrocities, which is at the core of both IHRL and IHL, is a primary responsibility of states as the main bearers of obligations under international law. However, if a state is unable or unwilling to exercise its protection obligations, these shift to international organizations, including the United Nations or any other authority controlling the territory and its population. This report analyses the decision of the International Court of Justice (ICJ) in the Case Concerning Armed Activities on the Territory of Congo (2005), which affirms this principle, and demonstrates the resultant protection responsibilities of any power in control of a territory.
The crimes enumerated in the protection clause of the World Summit Outcome Document fall under the jurisdiction of the International Criminal Court (ICC), which was established to deal with the ‘most serious crimes of concern to the international community’, such as the crime of genocide (Article 6), crimes against humanity (Article 7), and war crimes (Article 8). Although the ICC has jurisdiction only over its state parties and those referred to its jurisdiction by the UN Security Council, these crimes evoke serious international legal consequences under all circumstances, also if tried by national courts. Genocide and crimes against humanity are considered crimes under all circumstances, whether in time of peace or war; neither immunities nor the statute of limitations apply; they fall under universal jurisdiction with an obligation of local trial or extradition; they involve increased international obligations for states to cooperate; and are not to be subject to amnesty.
The report further analyses various protection tools available within the UN human rights machinery, in particular the Human Rights Council with its new Universal Periodic Review (UPR) system and the special procedures, and the OHCHR, with its extensive field presence tasked with public reporting and support to national protection systems and public defenders. It concludes that those tools could play a much stronger role in preventing and addressing atrocities – through timely provision of information, early warning or thorough analysis of protection conditions in various countries.
The most important obstacle, however, to implementing the responsibility to protect clause within the UN is the prevailing institutional gap between human rights and security matters within the world organization. This problem was taken up by former Secretary General Kofi Annan in his 2005 report ‘In larger freedom’, in which he called for the integration of human rights into the work of the UN on an equal footing with security and development and by granting the human rights machinery conditions to operate in the mainstream of its activities, in close collaboration with the Security Council. If implemented, those measures could create the conditions for a consolidated, systemic UN approach to enacting the principle of the responsibility to protect.
The present report concludes that the responsibility to protect clause should be perceived as an opportunity to give force to the implementation of the underlying human rights instruments that often remain on paper or are not supported by sufficient national legislation and enforcement. It also identifies research and policy recommendations that may facilitate the operationalization of this important clause.
