Embracing the 'responsibility to protect': A repertoire of measures including asylum for potential victims

International Journal of Refugee Law

Volumn 20, Issue 4, 2008, Pages 533-566

  Barbour, Brian ^a   Gorlick, Brian ^b  

^a Hong Kong Refugee Advice Centre   (Hong Kong)

^b New York Office   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ASYLUM SEEKER; CAPACITY BUILDING; HUMAN RIGHTS; HUMANITARIAN AID; INTERNATIONAL LAW; MILITARY INTERVENTION; SOVEREIGNTY; UNITED NATIONS;

EID: 57349100931     PISSN: 09538186     EISSN: 14643715     Source Type: Journal    
DOI: 10.1093/ijrl/een035     Document Type: Article

References (192)

1. Pope Benedict XVI, 'Statement by Pope Benedict XVI, delivered to the United Nations General Assembly', New York, 18 Apr. 2008, available at: .
2. Antńio Guterres, UN High Commissioner for Refugees, 'Millions Uprooted: Saving Refugees and the Displaced', (2008) 87 Foreign Affairs 92-3.
3. Kofi Arman, Report of the Secretary-General, 'In Larger Freedom: Towards development, security and human rights for all' (hereinafter 'In Larger Freedom'), delivered to the United Nations General Assembly, UN doc. A/ 59/2005, 21 Mar. 2005, para. 135. Available at: .
4. The International Commission on Intervention and State Sovereignty (hereinafter 'ICISS'), 'The Responsibility to Protect' (Ottawa: International Development Research Centre for ICISS, Dec. 2001), at VIL available at (follow 'View Document (PDF)' hyperlink).
5. World Summit Outcome document (hereinafter 'WSO'), GA res. 60/1, paras. 138-9, UN doc. A/Res/60/1, 24 Oct. 2005. The operative paragraphs of the WSO document, sub-titled 'Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity', provide:
6. Each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help states to exercise this responsibility and support the United Nations in establishing an early warning capability.
7. The international community, through the United Nations, also has the responsibility o use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organisations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping states build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.
8. ICISS, above n. 4, at para. 2.29.
9. See, e.g., Carsten Stahn, 'Responsibilty to Protect: Political Rhetoric or Emerging Legal Norm?' (2007) American, Journal of International Law.
10. The subject of this article arose based upon work UNHCR has undertaken along with colleagues from the UN secretariat and UN agencies, funds and programmes in an informal working group established by the Executive Committee on Peace and Security (ECPS) to identify and develop a 'repertoire of measures' that would contribute to the fulfillment of R2P. Discussions are ongoing within the UN, at the working and principal levels. The Secretary-General has recently appointed a Special Adviser for the Prevention of Genocide and Special Advisor on the Responsibility to Protect. In addition there have been an increasing number of public seminars and conferences. Any proposals to establish a mechanism within the UN on R2P particularly if there are budgetary and staffing implications, will ultimately have to be agreed to by the UN General Assembly and its relevant committees and possibly other organs such as the Security Council.
11. See, M. Byers & S. Chesterman, 'Changing the Rules About Rules?' in J.L. Holzgrefe & R.O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge University Press, 2003), 177, 190-4, which observes that in many states that have endured past humanitarian intervention, the intermingling of humanitarian purposes with other non-humanitarian goals has created debate over the value of the human rights project, and suggests that the United States has been seeking to loosen constraints on intervention in order to obtain dominance in international order and to pursue its desired course of action outside the norms of humanitarian intervention.
12. Prosecutor v. Tactic, Case No. IT-94- 1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 97 (Appeals Chamber decision, 2 Oct. 1995).
13. The international human rights movement was solidified on 10 Nov. 1948 when the United Nations General Assembly adopted of the Universal Declaration of Human Rights (UDHR). The Declaration codified basic civil, political, economic, social and cultural rights that all human beings should respect and protect. The UDHR, together with the International Covenant on Civil and Political Rights and its two Optional Protocols, and the International Covenant on Economic, Social and Cultural Rights form the International Bill of Human Rights. A series of international human rights treaties and other instruments adopted since 1945 provide a universal legal framework and jurisprudence for the protection of the human rights of all persons. Human rights norms and mechanisms adopted at the regional and national level that inky alia reflect the particular human rights concerns of regions, sub-regions and nation states draw upon and are complimentary to the international system of human rights protection. Most states have adopted constitutions and other laws that formally protect basic human rights as reflected in international law. For an overview of international human rights treaty law and related developments refer to the website of the UN Office of the High Commissioner for Human Rights: .
14. 'Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace of the world ... Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realisation of this pledge', Universal Declaration of Human Rights (UDHR), preamble, GA res. 217A (III), UN doc. A/810 at 71, 1948.
15. 'Recognising that, in accordance with the UDHR, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his [or her] civil and political rights, as well as his [or her] economic, social and cultural rights', International Covenant on Civil and Political Rights, preamble, UN doc. A/6316, 1966, 999 UNTS 171.
16. 'Recognising that, in accordance with the UDHR, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his [or her] economic, social and cultural rights, as well as his [or her] civil and political rights ... Considering the obligations of states under the Charter of the UN to promote universal respect for, and observance of, human rights and freedoms', International Covenant on Economic, Social and Cultural Rights, preamble, UN doc. A/6316, 1996, 993 UNTS 3.
17. Ramesh Thakur, The United Nations, Peace and Security (Cambridge University Press, 2006) 245.
18. 'All Members 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'.
19. 'Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll'.
20. Art. 51, 'Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security'.
21. Art. 39, 'The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 (imposition of economic sanctions by UN member states) and 42 (use of military force by UN member states), to maintain or restore international peace and security'.
22. Prosecutor v. Tadic, Case No. IT-94- 1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber decision, 2 Oct. 1995), para. 30.
23. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ Judgment, 26 Nov. 1984.
24. See entries under 'Country Cases' and 'Past Humanitarian Interventions', bibliography, Supplementary Volume to the Report of ICISS, above n. 4, Research, Bibliography, Background, available at: .
25. G. Evans, President of the International Crisis Group, 'Delivering on the Responsibility to Protect: Four Misunderstandings, Three Challenges and How To Overcome Them', address to the Stiftung Entwicklung and Frieden (Development and Peace Foundation) Symposium, 20 Nov. 2007 in Bonn, available at: (emphasis added).
26. WSO, above n. 5, at para. 138, '... The international community should, as appropriate, encourage and help states to exercise this responsibility [to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity] ...' (emphasis added).
27. Address of UN Secretary- General Ban Ki-moon at an event on 'Responsible Sovereignty: International Cooperation for a Changed World', delivered in Berlin on 15july 2008, available as UN doc. SG/SM/11701, UN Department of Public Information, New York.
28. On the challenges of seeking consensus by UN member states on R2P see, the lecture by G. Evans, 'The Responsibility to Protect: An Idea Whose Time Has Come ... and Gone?', David Davies Memorial Institute, University of Aberystwyth, 23 Apr. 2008; available on-line at: .
29. Evans, above n. 19.
30. ICISS, above n. 4.
31. Ibid., at paras. 1.35; 2.14.
32. Ibid., at paras. 2.3 1; 8.1.
33. Ibid., at paras. 2.16-2.20.
34. Report of the High-Level Panel on Threats, Challenges and Change, 'A More Secure World: Our Shared Responsibility' (hereinafter 'A More Secure World'), Submitted to the Secretary-General and delivered to the General Assembly, UN doc. A/59/565, 2 Dec. 2004.
35. Ibid., para. 201.
36. In Larger Freedom, above n. 3, at paras. 132, 135, Annex III(7)(b).
37. WSO, above n. 5.
38. Ibid., at paras. 138-9.
39. ICISS, above n. 4, at para. 1.25.
40. Of significance, para. 133 of the WSO, ibid., commits UN member states to: '... safeguarding the principle of refugee protection and to upholding our responsibility in resolving the plight of refugees, including through the support of efforts aimed at addressing the causes of refugee movement, bringing about the safe and sustainable return of those populations, finding durable solutions for refugees in protracted situations and preventing refugee movement from becoming a source of tension among states. [UN member states] reaffirm the principle of solidarity and burden-sharing and resolve to support nations in assisting refugee populations and their host communities' (emphasis added).
41. Ibid., at para. 2.18.
42. Ibid.
43. Ibid., at paras. 4.2; 4.18; 4.19.
44. 'A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted by international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character', Vienna Convention on the Law of Treaties, Art. 53, 23 May 1969, entered into force 27 Jan. 1980; 1154 UNTS 331.
45. Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter 'Genocide Convention'), 9 Dec. 1948, 78 UNTS 278.
46. Rome Statute of the International Criminal Court, I July 2002, 2187 UNTS 90.
47. GA res. 96(I), UN doc. A/RES/1/96, It Nov. 1946, 'The Crime of Genocide'.
48. For an inspirational history of the formation of the Genocide Convention and the historical cost of inaction in the face of mass atrocity, see, S. Power, A Problem from Hell: America and the Age of Genocide, (Basic Books, New York, 2002).
49. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 ICJ 15, 28 May 1951.
50. Ibid., at 23.
51. Comment by Juan E. Mendez, former Special Adviser to the Secretary-General on the Prevention of Genocide, UNITAR Peace and Security Series Seminar, New York, 3 Apr. 2007.
52. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Cenocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 ICJ 91, 26 Feb. 2007, in which the Court inter alia found that Serbia had violated its obligations to comply with the provisional measures ordered by the Court on 9 Apr. and 13 Sept. 1993 in this case, inasmuch as it failed to take all measures within its power to prevent genocide, in Srebrenica injuly 1995.
53. Genocide Convention, above n. 37, Art. I & Art. VIII.
54. From conceptions of 'just war' as a medieval natural law doctrine that recognized some kinds of war as permissible when for a 'just cause' or with a 'right intention', the law of war was gradually displaced by less substantive, more procedural conceptions such as the requirement that a just war be 'declared'. For a detailed description of the historical development of international humanitarian law, see, M. Sassòli and A.A. Bouvier, How Does Law Protect in Way: Cases, Documents, and Teaching Materials on Contemporag Practice in International Humanitarian Law (International Committee of the Red Cross, Geneva, Apr. 1999).
55. Also, R.J. Delahunty and J. Yoo, Making War, (2007) 93 CNLLR 123
56. (citing S.C. Neff, War and the Law of Nations: A General History (2005)).
57. Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 Aug. 1949, 75 UNTS 31; Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 Aug. 1949, 75 UNTS 85; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 Aug. 1949, 75 UNTS 135; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 Aug. 1949, 7 5 UNTS 287.
58. Protocol Additional (No. I) to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, 8 Jun. 1977, 1125 UNTS 3; Protocol Additional (No. II) to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609.
59. The Trial of Gerenan Major War Criminals before the International Military Tribunal Sitting at Nuremberg, Germany, 14 Nov. 1945 to I Oct. 1946, (1947) 41 American, Journal of International Law 172, 248-9.
60. Charter of the International Military Tribunal in Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (hereinafter 'Charter of the Nuremberg Tribunal'), 8 Aug. 1945, 82 UNTS 280, 288.
61. Rome Statute, above n. 38, Art. 8, "'War crimes" means grave breaches of the Ceneva Conventions of 12 August 1919, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention'; See specific provisions under Art. 8(1)(a) including willful killing, torture or inhuman treatment ...; (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law ... In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949 ... any ... acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause ... [as well as] other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law
62. Ibid.
63. As noted in The Economist: '... the world's worst tyrants have usually managed to avoid being brought to court for their crimes ... [Hitler, Stalin, Mao, Pol Pot, Idi Amin, Mengistu Haile Mariam] .... But with the spread of international justice over the past decade, the noose is tightening. It is now accepted that there can be no immunity for the worst violations of human rights, not even for heads of state ... Serbia's president, Slobodan Milosevic, was indicted for war crimes in 1999 ... [Re: Ratko Mladic, Augusto Pinochet, Hissène Habré, Wojciech Jaruzelski, and Saddam Hussein]', 'War Crimes: Bringing the Wicked to the Dock', The Economist, 9 Mar. 2006, available at: .
64. See, e.g., 'Report of the independent expert to update the set of principles to combat impunity', UN Econ. & Soc. Council [ECOSOC], Addendum, UN doc. E/CN.4/2005/102/Add.1, 8 Feb. 2005, prepared by Diane Orentlicher;
65. 'Entrenching Impunity: Government Responsibility for International Crimes in Darfur', Human Rights Watch Report, Nov. 2005, Vol. 17, No. 17(A), available at: .
66. Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (hereinafter 'ICTY'), SC res. 827, UN doc. S/RES/827, 25 May 1993;
67. The International Criminal Tribunal for Rwanda (hereinafter 'ICTR'), SC res. 955, UN doc. S/RES/955, 8 Nov. 1994.
68. Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea (6 Jun. 2003) available at: (last visited 28 Jan. 2008) approved by the UNGA, A/RES/57/228 (13 May 2003)
69. Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Courtfor Sierra Leone (16 Jan. 2002) available at: (last visited 28 Jan. 2008)
70. Agreement between the UN and the Lebanese Republic on the establishment ofa Special Tribunal for Lebanon, SC res. 1757, Annex, UN doc. S/RES/1757, 30 May 2007.
71. SC res. 1272, UN doc. S/RES/1272, 25 Oct. 1999;
72. see also, Regulation No. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UNTAET/REG/2000/ 15, 6 June 2000.
73. Establishing a UN Interim Civilian Administration in Kosovo, SC res. 1244, UN doc. S/RES/1244, 10 Jun. 1999.
74. Rome Statute, above n. 38.
75. Further information and country and case-specific reports on the work of the international criminal tribunals can be found on the Human Rights Watch 'international justice' programme website at: .
76. Rome Statute, above n. 38, Art. 7(1)(h), 'Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court'.
77. ICTY, above n. 55, Art. 5(h), 'The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: . (h) persecutions on political, racial and religious grounds '.
78. The case against Nikola Jorgic is particularly illustrative of this point. The Higher Regional Court (Oberlandesgericht) of Dusseldorf, in Sept. 1997, found the ethnic cleansing carried out by Nikola Jorgic to be genocide (Oberlandesgericht Dusseldorf, ' Public Prosecutor v. Jorgic', 26 Sept. 1997).
79. Jorgic appealed to the European Court of Human Rights (ECHR). The ECHR rejected the appeal, but did note that the German Court's ruling had interpreted German domestic law on genocide more broadly than more recent rulings by the ICTY and the ICJ (Jorgic v. Germany, European Court of Human Rights (ECHR) (Application no. 74613/01, 2007). The ECHR further noted that in the 21st century: 'Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide. However there are also a considerable number of scholars who have suggested that these acts did amount to genocide' (Jorgic s.47).
80. See also, Prosecutor v. Radislav Krsti, Case No. IT-98-33-T, Trial Judgement, para. 84 (2 Aug. 2001);
81. Prosecutor v. Kupreskic and Others, IT-95-16-T, judgment of 14 Jan. 2000, s. 751;
82. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 ICJ 91, 26 Feb. 2007.
83. GA res. 46/242, Preamble, UN doc. A/RES/46/242, 25 Aug. 1992, 'The situation in Bosnia and Herzegovina'.
84. Ibid.
85. GA res. 47/80, para. 4, UN doc. A/RES/47/80, 16 Nov. 1992, '"Ethnic cleansing" and racial hatred'.
86. Charter of the Nuremberg Tribunal, above n. 50, Art. 6;
87. ICTY, above n. 55, Art. 5;
88. ICTR, above n. 55, Art. 3;
89. Rome Statute, above n. 38, Art. 7.
90. Charter of the Nuremberg Tribunal, ibid. (emphasis added).
91. ICTY, above n. 55, Art. 5, (Crimes against humanity) (emphasis added).
92. ICTR, above n. 55, Art. 3 (Crimes against humanity) (emphasis added).
93. Rome Statute, above n. 38, Article 7 (Crimes against humanity).
94. Ibid., Part 9, Article 86 (General obligation to cooperate).
95. ICISS, above n. 4, at paras. 1.2, 1.5.
96. Evans, above n. 19.
97. See, e.g., D. Eisner, 'Humanitarian Intervention in the Post-Cold War Era' (1993) Boston University International Law Journal; T. Modibo Ocran, 'The Doctrine of Humanitarian Intervention in Light of Robust Peacekeeping' (2002) 25 B.C. Int'l & Comp. L. Rev. 1;
98. W. Moorman, 'Humanitarian Intervention and International Law in the Case of Kosovo' (2002) 36 New Eng. L. Rev. 775;
99. J.D. Wilets, 'Lessons from Kosovo: Towards a Multiple Track System of Human Rights Protection' (2000) 6 ILSA J. Int'l & Comp. L. 645;
100. B.S. Brown, 'Humanitarian Intervention at a Crossroads' (2000) 41 Wm. & Mary L. Rev. 1683;
101. M.L. Burton, 'Legalizing the Sublegal: A Proposal for Codifying a Doctrine of Unilaterial Humanitarian Intervention' (1996) 85 Geo. L.J. 417.
102. In addition the ICISS supplementary volume provides a 16 page bibliography on ' Humanitarian Intervention' and 'Sovereignty and Intervention', above n. 18.
103. It is also noteworthy that it was the first two African UN Secretaries-General, Boutros Boutros-Ghali and Kofi Annan, who first addressed the notion of sovereignty and humanitarian intervention. And as noted by Secretary-General Ban Ki-moon: '... the African Union (AU) has been explicit: In the year 2000, five years before the Summit declaration, the AU asserted "the right of the Union to intervene in a member state pursuant to a decision of the Assembly in respect of grave circumstances, namely: War crimes, genocide and crimes against humanity"'. See above n. 21.
104. ICISS, above n. 4, at VII (Forward).
105. Ibid., at para. 2.32.
106. A More Secure World, above n. 27, at para. 201, '[T]he responsibility to protect] should be taken up... spanning a continuum involving prevention, response to violence, if necessary, and rebuilding shattered societies. The primary focus should be on assisting the cessation of violence through mediation and other tools and the protection of people through such measures as the dispatch of humanitarian, human rights and police missions';
107. In Larger Freedom, above n. 3, at paras. 132, 135, 'We must ... move towards embracing and acting on the " responsibility to protect " potential or actual victims of massive atrocities... [using] diplomatic, humanitarian and other methods to help protect the human rights and well-being of civilian populations. When such methods appear insufficient, the Security Council may out of necessity decide to take action under the Charter of the United Nations, including enforcement action, if so required'.
108. WSO, above n. 5, at para. 139,'... we are prepared to take collective action, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity'.
109. Ibid., at paras. 138 & 139 (emphasis added).
110. ICISS, above n. 4, supplementary volume bibliography, 'Humanitarian Intervention' and 'Sovereignty and Intervention', above n. 18.
111. A More Secure World, above n. 27, Part 3, Collective Security and the Use of Force, Synopsis, 'In all cases, we believe that the Charter of the United Nations, properly understood and applied, is equal to the task: Article 51 needs neither extension nor restriction of its long-understood scope, and Chapter VII fully empowers the Security Council to deal with every kind of threat that states may confront. The task is not to find alternatives to the Security Council as a source of authority but to make it work better than it has'.
112. WSO, above n. 5, at para. 139.
113. UN Charter, Art. 2(4).
114. Power, above n. 40, at 55.
115. Ibid., at 60, 485. The fi rst time the 1948 law was enforced was 2 Sept. 1998 when the International Criminal Tribunal for Rwanda found Jean-Paul Akayesu, former mayor of a town in Rwanda, guilty of nine counts of genocide.
116. A.M. Rosenthal, 'A Man Called Lemkin', New York Times, 18 Oct. 1988, A31.
117. International Covenant on Civil and Political Rights, 16 Dec. 1966, UN doc. A/6316, 1966, 999 UNTS 171.
118. International Covenant on Economic, Social and Cultural Rights, 3 Jan, 1976, UN doc. A/6316, 1966, 993 UNTS 3.
119. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 Dec. 1984, UN doc. A/39/51, 1465 UNTS 85.
120. Convention relating to the Status of Refugees (hereinafter '1951 Refugee Convention'), 28 Jul. 1951, 189 UNTS 150.
121. International Convention on the Elimination of All Forms of Racial Discrimination, 21 Dec. 1965, UN doc. A/6014, 660 UNTS 195.
122. Convention on the Elimination of All Forms of Discrimination against Women, 18 Dec. 1979, UN doc. A/34/46, 1249 UNTS 13.
123. Convention on the Rights of the Child, 20 Nov. 1989, UN doc. A/44/49, 1577 UNTS 3.
124. ICTY, above n. 55.
125. ICTR, above n. 55.
126. Rome Statute, above n. 38.
127. Convention for the Protection of Human Rights and Fundamental Freedoms, 4 Nov. 1950, Europe. TS No. 5; 213 UNTS 222.
128. See Constitutive Act of the African Union, 11 Jul. 2002, OAU doc. CAB/ LEG/23.15, available at: .
129. Charter of the Organization of American States, 30 Apr. 1948, 119 UNTS 3 (available at: .
130. Statute of the Inter-American Court of Human Rights, Oct. 1979, OAS res. 448 (IX-0/79), available at: .
131. See, T.G. Weiss, Humanitarian Intervention: War and Conflict in the Modern World (Polity Press 2007), ch. 4, 'New Thinking: The Responsibility to Protect'.
132. Thakur, above n. 12, at 257.
133. ICISS, above n. 4, at paras. 3.1-3.9;
134. A More Secure World, above n. 27, at paras. 201-3;
135. In Larger Freedom, above n. 3, at para. 135;
136. WSO, above n. 5, at paras. 138, 139.
137. These views have been expressed in UN inter-agency discussions on R2P of which the authors are aware. In this context there may be a tendency to engage in a form of self-censorship in conceptualising R2P among UN actors given that, at the end of the day, UN member states will have to endorse and agree to fund any R2P model or mechanism which the UN Secretary-General and secretariat, as well as participating UN agencies, funds and programmes propose.
138. Evans, above n. 19.
139. Conceptually it makes sense to argue that a sovereign has responsibilities that go beyond preventing mass atrocities. Preventing mass atrocities is indeed a low bar. However limiting R2P to the four enumerated crimes was what was achieved and agreed to at the World Summit. Each of these crimes is a peremptory norm of jus cogens from which no derogation is permitted. No state can argue interference with sovereignty in the face of such crimes; in fact, under these circumstances some outside interference or involvement may be critical to prevent the crimes from taking place and/or to respond on behalf of the victims or potential victims.
140. 'R2P hailed as one of UN's Greatest Achievements Under Kofi Annan's Leadership', see full story at: .
141. Kofi Annan, 'Two Concepts of Sovereignty', The Economist, 352, 18 Sept. 1999, 49-50.
142. Press Release, 'Secretary-General Appoints Francis Deng of Sudan As Special Adviser for Prevention of Genocide', SG/A/1070, see full story at: .
143. Press Release, 'Appointment confirmed of UN special adviser on responsibility to protect', see full story at: .
144. Above n. 21.
145. WSO, above n. 5, at para. 139.
146. Ibid.: 'The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity... to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations ... to protect... populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and confl icts break out' (emphasis added).
147. UN Charter, Chapter I Purposes and Principles, Art. 1.
148. Re: 'Misconception Three', above part 3.3.
149. See, The Georgia-Russia Crises and the Responsibility to Protect: The
150. G.J. Buss, 'Humanitarian Impulses', New York Times Magazine, 15 Aug. 2008, available at: .
151. French Foreign Minister Bernard Kouchner was quoted as saying: 'We are seeing at the UN if we can't implement the responsibility to protect, given that food, boats and relief teams are there, and obtain a United Nations' resolution which authorises the delivery of (of aid) and imposes this on the Burmese government', 'France Suggests Helping Myanmar without Government Backing', Reuters, 7 May 2008, available at: .
152. In the case of Kenya, another country which has come under the R2P lens, Gareth Evan referred to the recent troubles in that country as a ' classic R2P situation which had the potential to turn into an international tragedy ' . Evans noted that the international response was ' very swift ' and the dispatch of former Secretary-General Kofi Annan and other such efforts resulted in a ' good, clear, crisp example of something that worked ' to resolve the confl ict. Evans also described the situation in Darfur as ' unequivocally an R2P situation where the international community has manifestly failed to intervene ' . Unlike Kenya, the case of the International Criminal Court notwithstanding, ' the response in Darfur has been inadequate ' . Evans made these remarks at a book launch held at the International Peace Institute in New York on 17 Sept. 2008.
153. Above n. 21.
154. ICISS, above n. 4, at VIII, 'The Commission's Report'.
155. Ibid., at para. 2.32.
156. Ibid., at XI, 'Prevention is the single most important dimension of the responsibility to protect'.
157. Ibid., at para. 2.29.
158. Ibid., at para. 1.35.
159. Operational measures may include: Preventive diplomacy; building/ strengthening international and national legal frameworks by promoting accession to, ratification and implementation of relevant treaties, conventions and national legislation; early warning through media and human rights monitoring; reporting and fact-fi nding; promoting IHL and human rights protection strategies through international and national human rights institutions; sounding the alarm through a system-wide network of UN, governmental and non-governmental actors; establishing and protecting refugee and IDP camps and settlements; individual accountability through cooperation with international tribunals and human rights institutions; and transitional justice, reconciliation and capacity building.
160. See, D.A. Humburg, Preventing Genocide: Practical Steps Toward Early Detection and Effective Action(Paradigm Publishers, Boulder/London 2008), chapter 13, 'Potential of the UN for Preventing Mass Violence';
161. and G. Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All (Brookings Institution Press, 2008).
162. For the purpose of this essay the concepts of 'asylum', 'protection' and '(international) refugee protection' and/or 'IDP protection' are used interchangeably.
163. Weiss, above n. 102, at 89.
164. F.M. Deng & R. Cohen, Masses in Flight: The Global Crisis of Internal Displacement(Brookings Institution, 1998), 275-80;
165. see also, United Nations Commission on Human rights, 'The Guiding Principles on Internal Displacement': UN doc. E/CN.4.1998/53/Add.2, 1998, reprinted as OCHA/IDP/2004/01.
166. Refugee Convention, above n. 91;
167. see also: The 1967 Protocol relating to the Status of Refugees, 31 Jan. 1967, 606 UNTS 267;
168. The 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, 20 June 1974, 1001 UNTS 45.
169. Through the Organisation of African Unity, UNHCR and other actors are working towards developing a draft Convention on IDPs. An international conference on a draft Convention is also being planned.
170. Volker Türk, 'Freedom from Fear: Refugees, the Broader Forced Displacement Context and the Underlying Protection Regime', Collection of the Geneva Academy of International Humanitarian and Human Rights Law, Vol. II, Brussels, 2007.
171. Weiss, above n. 102, at 91.
172. 'Whether a person travels ten miles across an international border or the same distance down the road into a neighbouring province may be crucial for determining logistical and diplomatic action. Conceptually, however, refugeehood is unrelated to migration. It is exclusively a political relation between the citizen and the state, not a territorial relation between a countryman and his homeland', A. Shacknove, 'Who is a Refugee?', (1985) 95 Ethics 283.
173. Weiss, above n. 102, at 90.
174. Power, above n. 40, at 36, in describing the response of Allied powers to increasing admissions for Jews fleeing Nazi Germany noted: '... the Allies rejected most of the modest proposals to expand refugee admissions, continuing to severely limit the number of Jews who would be granted temporary refuge in the United States and unoccupied Europe'. Similar scenarios, most regrettably, have been experienced more recently by the mixed response of some states to receive refugees from the Former Yugoslavia, Iraq, Rwanda, the Sudan and Myanmar/Burma, amongst others.
175. See, e.g., the story of the SS St. Louis at: .
176. See, N. Kelly, 'International Refugee Protection Challenges and Opportunities', 19 IJRL 401 (2007);
177. and B. Gorlick, '(Mis)perception of Refugees, State Sovereignty and the Continuing Challenge of International Protection' in A.F. Bayefsky (ed.), Human Rights and Refugees, Internally Displaced Persona and Migrant Workers: Essays in Honour of Joan Fitzpatrick and Arthur Helton (Martinus Nijhoff/Brill Academic Publishers, 2006).
178. Article 1A of the 1951 Refugee Convention defines a refugee as a person who: '... owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his [or her] nationality and is unable or, owing to such fear, is unwilling to avail him[her]self of the protection of that country; or who, not having a nationality and being outside the country of his [or her] former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it'. There are several contemporary examples of UNHCR's work, in cooperation with states and on behalf of the international community, protecting potential victims of genocide, war crimes, ethnic cleansing, and crimes against humanity. These include: Kurdish refugees fleeing ethnic cleansing in Iraq under Saddam Hussein; Rwandese refugees fleeing in the 1990s; Cambodian refugees fleeing crimes against humanity; Myanmar/Burmese refugees fleeing ethnic cleansing; Albanians (Kosovars) fleeing ethnic cleansing in Kosovo during the 1990s; Liberian refugees who fled Liberia under the threat of war crimes and crimes against humanity; and Ugandan refugees who fled under threat of war crimes and crimes against humanity by non-state actors. Beyond the existing refugee definition and UNHCR's role, High Commissioner António Guterres has proposed that: 'The international community needs to establish a cooperative legal and policy framework based on humanitarian principles that will ensure that people who have fled serious economic, social, or environmental crises in their own countries are not subsequently deported from the countries to which they have fled. Rather, temporary forms of protection and material assistance, at the least, should be provided to the most vulnerable among them ... The UNHCR can be a central player in a new humanitarian-protection compact built with other international organisations based on universal values, human rights, and international law'. See above n. 2.
179. The states parties to the 1951 Refugee Convention and its 1967 Protocol Relating to the Status of Refugees can be found at the UNHCR public website: .
180. United Nations Commission on Human Rights, 'The Guiding Principles on Internal Displacement': UN doc. E/CN.4.1998/53/Add.2, 1998, reprinted as OCHA/IDP/2004/01.
181. See H. Entwisle, 'Tracing Cascades: The Normative Development of the UN Guiding Principles on Internal Displacement', (2005) 19 Georgetown Immigration Law Journal 369.
182. See, e.g., Humburg; and Evans, above n. 125.
183. See, e.g., José E Alvarez, 'The Schizophrenias of R2P', Panel Presentation at the 2007 Hague Joint Conference on Contemporary Issues of International Law: Criminal Jurisdiction 100 Years After the 1907 Hague Peace Conference, The Hague, 30 June 2007, available on-line at: .
184. Comments by P. Bertrand, Director of the UNHCR New York Office, at a Seminar on 'Prevention of Mass Atrocities: From Mandate to Realisation' organised by United Nations University (UNU NY) and the International Crises Group (ICG) on 10 Oct. 2007 in New York.
185. See Strengthening Protection Capacity Project (SPCP), 'Protection Gaps: Framework for Assessing Gaps in Protection Capacity', UNHCR Geneva, at:
186. 'Addressing Security Concerns without Undermining Refugee Protection', UNHCR Geneva, Nov. 2001, at:
187. and, Matthew Gibney, 'Security and the Ethics of Asylum after 11 September', (2002) Forced Migration Review no. 13, available on-line at: .
188. The State of the World's Refugees 2006 - Human displacement in the new millennium (UNHCR Geneva, Oxford University Press 2006), ch. 7 'Internally displaced persons', see, .
189. Statement by Ms E. Feller, Assistant High Commissioner for Protection, Fifty-seventh session of the Executive Committee of the UNHCR, Agenda item 5(a), Geneva, 2006.
190. Ibid.
191. In Larger Freedom, above n. 3, para. 132.
192. Roberta Cohen, 'Humanitarian Imperatives are Transforming Sovereignty', (2008) Northwestern Journal of International Affairs, available at: .