THE “RESPONSIBILITY TO PROTECT:” THE NEW GLOBAL MORAL COMPACT Richard H

42 Pages·2006·0.63 MB·English

THE “RESPONSIBILITY TO PROTECT:”
THE NEW GLOBAL MORAL COMPACT
Richard H. Cooper and Juliette Voinov Kohler*
Copyright © August 2006 Richard H. Cooper and Juliette Voinov Kohler
Table of Contents
Table of Contents................................................................................................................i
Foreword - Letter from the Convenor of the R2P Coalition............................................ii
Synopsis..............................................................................................................................iv
Introduction........................................................................................................................1
I. The “responsibility to protect”: an historical breakthrough........................................1
I.1. Bringing human rights protection to another level.........................................................2
I. 2. A new paradigm of international relations: we are our brothers’ keepers..................6
II. A holistic approach to protecting populations from atrocity crimes...........................8
II.1. An introduction to atrocity crimes: genocide, war crimes and crimes against
humanity..................................................................................................................................8
II.2. The responsibility to prevent..........................................................................................9
a) Addressing the root-causes of mass atrocities................................................................................9
b) Addressing the direct causes of mass atrocities............................................................................11
II.3. The responsibility to react.............................................................................................11
a) Helping the State protect its populations......................................................................................11
b) Coercive measures......................................................................................................................12
II.4. The responsibility to rebuild.........................................................................................15
III. The “responsibility to protect” and the United States of America..........................16
III.1. The United States current foreign policy and the “responsibility to protect”.........16
a) From a minimum common denominator…..................................................................................16
b) … to a fully fledged answer to atrocity crimes.............................................................................17
III.2. An opportunity to reassert America’s leadership......................................................18
a) The perception of the United States in the world..........................................................................18
b) Why the United States should act upon the responsibility to protect............................................18
- Prudence and enlightened self interest...............................................................................19
- Morality............................................................................................................................20
c) The new global social contract....................................................................................................21
Conclusion........................................................................................................................23
Annex 1: Excerpt from A/RES/60/1................................................................................24
Annex 2: S/RES/1674 (2006)...........................................................................................26
About the authors.............................................................................................................31
About the R2P Coalition..................................................................................................32
i
Foreword
Letter from the Convenor of the R2P
Coalition
Over time, we the American people have been driven by our thirst for freedom, our
mission to right wrong and to serve man. We have known periods of darkness in the past.
But those difficult times triggered giant leaps towards a greater civilization for the benefit
of our fellow men. Our ancestors rose in the face of turmoil and overcame formidable
challenges. Their own consciences drove them to aspire to the best possible human
behavior and to ascertain the high moral ground. Two hundred years ago, on March 2nd,
1807, the American people took the first historical step that would eventually lead to the
abolition of slavery. And it was led by the conviction that racial segregation was
immoral, that the American people outlawed this abhorrent practice nearly half a century
ago.
There is no doubt in my mind: the desire for peace, justice and human dignity is written
in the hearts and minds of all the American people. It is deeply rooted in our tradition.
And it must remain so. Yet today, as mass atrocities repeatedly stain humanity, the world
no longer turns to America for those moral inspirations that lie at the basis of freedom
and human security. The abuses in Abu Ghraib and Guantanamo remind us that moral
decay can be contagious and that we are not immune to evil behavior. And it should not
come as a surprise that people around the globe have come to disbelieve that our country
puts human rights above all other rights and that its flag is the flag not only of America
but of humanity. Today, indeed, the claim that America is the greatest nation on earth and
the leader of the civilized world is held in abeyance until we, the people of America,
reestablish our country’s moral authority.
I was born in the age of genocide and other mass atrocities. I grew up and led my life
truly believing that “never again” would, indeed, never be heard again. Yet, nestled in the
comfort of a prosperous country where people lived in peace, I remained a bystander as
sheer barbarity wrecked various corners of our world: Cambodia, the former Yugoslavia
or Rwanda. When told or reminded of these atrocities, my senses were revolted, my soul
was in turmoil, my heart bled, and with all my might – or so I thought - I condemned
humanity for being so full of evil. I am today a senior citizen, and I still live in the age of
genocide, crimes against humanity and war crimes. I realize that I can no longer be an
occasional witness, a sincere yet superficial enemy of some of the most monstrous
behaviors ravaging Uganda, the Democratic Republic of Congo and Darfur. Because
mass atrocities not only disgrace their perpetrators. They shame all of us who, whether by
calculation or indifference, default on our duty to uphold the lives and dignity of men.
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Yet as I write, a quiet revolution is under way. In September 2005, the United Nations
General Assembly adopted a declaration - the World Summit Outcome - whereby each
and every State in the world accepted its responsibility to protect populations from
genocide, crimes against humanity, ethnic cleansing and war crimes. The declaration also
emphasizes that if a State relinquishes its responsibility to protect – whether by will or
lack of capacity - this responsibility must be borne by the international community that
can decide to intervene as a last resort. In the face of mass atrocities, every nation and
thus every people on earth have pledged to be our brothers’ keepers. Without fanfare and
with little notice, the obsolete principles underlying the Westphalian ordering of world
affairs have been dramatically rewritten. We can no longer hide behind State sovereignty,
a 400-years old shield, to excuse the shameful reflex and ongoing practice of remaining
passive in the face of the most outrageous behaviors.
The United Nations has given us a historical opportunity. And we, the American people,
must seize it now. We owe it to our ancestors. We owe it to ourselves. We owe it to
future generations. We owe it to humankind.
It is prophecies and rebels that make history. In this case, the prophecy has already been
uttered: atrocity crimes will be abolished. We all know this must be. We cannot afford to
relegate the principle of the responsibility to protect to a set of enlightening words, an
empty theory. What we need are for rebels against indifference and rebels against
intolerance to gather and fulfill this prophecy. These rebels are the people who reject the
horror of mass atrocities, wherever they occur. They are the people who believe that lofty
ideals and high-mindedness must continue to drive the destiny of their country and of
humanity. These rebels are the people who embrace their responsibility to protect any
population from atrocity crimes. These rebels will turn a grand declaration into deeds.
They will free humanity from hell on earth. These rebels are me … and you. The
responsibility to protect is ours.
Yours respectfully,
Richard H. Cooper
iii
Synopsis
Atrocity crimes1 – genocide, crimes against humanity, ethnic cleansing and war crimes -
punctuate human history. Today, Darfur is in the public eye. Tomorrow, Northern
Uganda or the Democratic Republic of Congo, whose populations have long suffered
from atrocities, might shock the American people in a similar way. Or perhaps it will be
another place on earth. What is certain, and however unfortunate you may think it is, is
that we are not over with hell on earth.
Yet no one in his right mind would wish or not mind being a victim of massive killings,
torturing or sexual assault. No one should be allowed to not care that fellow human
beings are being slaughtered because of their religion, because of their race, because of
the place they were born. All human beings are bound by the very fact that they are
human and share many identical fears and hopes. As Martin Luther King Jr. expressed it:
“All men are caught in an inescapable network of mutuality.” Each one of us should feel
some level of responsibility in preventing human beings from becoming the victims of
lunatics, whether in our country or in a distant land.
The purpose of this paper is to present the American people with the historical
opportunity to engage in the abolition - in practice - of the most barbaric human
behaviors: genocide, crimes against humanity, ethnic cleansing and war crimes. Two
hundred years ago we succeeded in putting an end to one of the biggest disgraces for
humanity - slavery – the time has come to eradicate atrocity crimes.
On September 2005, the United Nations General Assembly endorsed the norm of the
“responsibility to protect” populations from mass atrocities. The World Summit Outcome
reads:
“Each and 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.
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 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
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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. 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.”
The core principles of the doctrine of the “responsibility to protect” are the
following:
• State sovereignty includes the “responsibility to protect” populations from
genocide, crimes against humanity, war crimes and ethnic cleansing.
• The “responsibility to protect” embraces the responsibility to prevent and the
responsibility to react to such atrocities, as well as the responsibility to rebuild
societies shattered by such atrocities.
• The prevention of genocide, crimes against humanity, war crimes and ethnic
cleansing should be given priority.
• The international community also has the responsibility to help States protect
their populations from genocide, crimes against humanity, war crimes and ethnic
cleansing.
• If a State relinquishes its “responsibility to protect” - whether by lack of will or
lack of capacity – this responsibility should be borne by the international
community that can decide enforcement measures, including the use of force as a
last resort.
Last fall, world leaders unanimously embraced the international community’s
responsibility towards our fellow human beings victim of atrocity crimes. And on 28
April 2006, the Security Council reaffirmed the doctrine of the responsibility to protect2.
These are huge steps forward. A unique opportunity we must seize. We too, the
American People, must embrace our Nation’s “responsibility to protect”
populations from hell on earth.
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Introduction
In September 2005, the United Nations General Assembly took a historical step. By
endorsing the “responsibility to protect,” world leaders, including our own - President
Georges W. Bush - laid the founding block for a revolutionary approach to dealing with
the mass atrocities that have, over time, plagued nearly every corner of our planet. Yet
this doctrine, and the potential it offers for putting an end to the most serious and massive
human rights violations, remains surprisingly little noticed in our country.
Mass atrocities are man-made, therefore they may be solved by man. “No problem
of human destiny is beyond human beings3.” The time is ripe for the American People
to grasp the rationale and embrace the extraordinary potential of the norm of the
“responsibility to protect.” Both our past and current events command that we live up to
our responsibilities as members of a global human society that wants to be freed from
mass atrocities. Over time and step by step, individual nations and the international
community have endorsed the rules and built the delicate structure that are prerequisites
for the abolition of genocide, crimes against humanity and war crimes. Today, with a 21st
century still in its infancy, we have reached a tipping point. The foundations have been
laid for the abolition of some of the biggest disgraces for humankind.
I. The “responsibility to protect”:
an historical breakthrough
The “responsibility to protect” calls on each individual State to protect its populations
from genocide, crimes against humanity, war crimes and ethnic cleansing. The
international community shares this “responsibility to protect” populations from mass
atrocities and should encourage and help individual States to exercise their responsibility.
In case national authorities manifestly fail to protect their populations and if peaceful
means are inadequate, the international community, through the United Nations Security
Council, may take collective enforcement action to protect populations from genocide,
war crimes, crimes against humanity and ethnic cleansing4.
The doctrine of the “responsibility to protect,” one of the greatest achievements of the
2005 General Assembly World Summit, seems quite straightforward and convincing. The
“responsibility to protect” populations from atrocity crimes resonates well with some of
our deepest and most noble human values: empathy and compassion. Yet what may seem
at first as the reaffirmation of normally expected human behavior is actually a huge step
forward as far as the international community is concerned: a new global social
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contract. The norm of the “responsibility to protect” consecrates a new paradigm of
international relations that affects the relationships not only between States, but
between each State and populations threatened by mass atrocities, wherever part of the
world they might be. This norm encapsulates a much-needed redefined balance between
the contents of State sovereignty and the duty to not interfere in the internal affairs of
States, two fundamental principles enshrined in the United Nations Charter5. The doctrine
of the “responsibility to protect” also builds on the formidable expansion of human
rights law that has progressively come to prohibit and criminalize genocide, crimes
against humanity and war crimes.
I.1. BRINGING HUMAN RIGHTS PROTECTION TO ANOTHER LEVEL
The doctrine of the “responsibility to protect” builds on the twentieth century
unprecedented growth of institutions and rules aimed at protecting human rights. Most
recently, such achievements include the 1998 Rome Statute establishing the
International Criminal Court - the ICC. This permanent judicial body - whose role is
often ill-understood in our country - has jurisdiction over atrocity crimes. This Court will
help ensure that the “architects of hell on earth,” to paraphrase Professor David Scheffer,
are brought to justice. Fifty years before the establishment of the ICC, the 1948
Universal Declaration of Human Rights was the first global political instrument to
articulate the most fundamental individual human rights.
Yet the origin of modern positive human rights and humanitarian international law
predates the aftermath of the second-world war and the crisis of conscience its horrors
triggered among many. The universal endorsement, in 1948, that all men are born free
and have inalienable rights finds its roots in previous national and international
achievements in the field of human rights. The 1800s in particular, the century of the
Enlightenment that led to the American Revolution, sowed the seeds of the moral outrage
that would dictate the ban of the biggest disgraces for humanity. Today a number of
appalling behaviors are labeled crimes against humanity, genocide or war crimes. We
owe this a great deal to the historical first steps taken two hundred years ago.
Our goal here is not to saturate you with the history of the human rights or humanitarian
law movement. But it is sometimes helpful to look to the past - both our successes and
our failures - to see with much greater clarity where we come from and what the obvious
next steps are: what the future must be and, therefore, what we have to do today. A brief
overview6 of what culminated in the abolition of enslavement, the commission of which
may amount today to a crime against humanity, substantiates why the abolition - in
practice and not just in theory- of genocide, crimes against humanity and war crimes, is
the logical and necessary next step.
When the Founding Fathers of our Nation adopted the 1776 Declaration of
Independence, they affirmed:
“We hold these truths to be self-evident, that all men are created equal, that they
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are endowed by their Creator with certain unalienable Rights, that among these
are Life, Liberty and the pursuit of Happiness.”
This did not mean that slavery was abolished when our Nation was founded. To the
contrary, our Constitution was specifically drafted in a way that could accommodate
different interests within our Nation. On one hand were those that saw a contradiction
between bondage for slaves and freedom for whites. Slavery was perceived as immoral
and the terrible fate of slaves - “miserable creatures” – had to be ended. By the end of the
1700s, several States in our country had passed emancipation laws, for example Vermont
and Connecticut. But few slaves lived in those States. On the other hand were those that
considered that slavery and the slave trade associated with it amounted to a common and
legitimate practice. Slavery had always existed it seemed, and at the end of the eighteenth
century, more than three quarters of the world population lived in bondage of one kind or
another, captive of various systems of serfdom or slavery. Slavery was even considered
necessary: it provided cheap labor and it was felt that putting an end to this practice
would, as we would say today, impose too high a burden on the economy. Slavery was so
essential to some that its abolition plainly threatened the unity of our Nation.
The compromise reached on this sensitive issue back in 1776 is clear from Article 1
section 9 of our Constitution. This provision bars Congress from prohibiting, prior to
1808, the “migration or importation of such persons as any of the States now existing
shall think proper,” but a tax or duty may be imposed on such importation. As appalling
as it seems today, our Constitution was built on the premise that, technically, slaves were
merchandise7.
Yet the Declaration of Independence would prove to be prophetic. Thirty years after the
birth of our Nation, on 2 March 1807, the U.S. Congress passed an act to "prohibit the
importation of slaves into any port or place within the jurisdiction of the United States ...
from any foreign kingdom, place, or country." This act banning the importation of slaves
on our soil entered into force on 1 January 1808, marking the United States’ historical
first step towards the abolition of slavery8. Slavery itself was abolished throughout the
United States on 18 December 1865 - following the end of the Civil War and two years
after Lincoln's symbolic 1863 Emancipation Proclamation9.
The 13th Amendment to the US Bill of Rights affirms that:
“Section 1. Neither slavery nor involuntary servitude, except as a punishment for
crime whereof the party shall have been duly convicted, shall exist within the
United States, or any place subject to their jurisdiction.”
Section 2. Congress shall have power to enforce this article by appropriate
legislation.”
We mention Section 2 of the 13th amendment - which the State of Illinois was the first to
ratify - not only to offer a comprehensive reading of this constitutional provision. Section
2 of the 13th amendment is as cardinal as section 1: it ensures that the abolition of slavery
is not merely a wish: it has to be reality. And for slavery to disappear from our soil, the
ban needed to be - and is indeed still today - enforced.
3
The United States did not abolish the slave trade and slavery in isolation from the rest of
the world. In the late years of the eighteenth century, the disgrace of this practice shocked
the conscience of men not only in our country but in Europe, in Russia and in other parts
of the American continent10. Laws abolishing the slave trade and emancipating slaves
gradually reversed what had been the norm until then. And on 25 September 1926, the
international community, through the League of Nations - the predecessor of the United
Nations -, adopted the first international treaty that abolished worldwide all types of
slavery11.
Yet even today, there remains a gap between these normative steps to abolish slavery
and reality. Today, there are still nearly 3 million individuals worldwide that are slaves
in the narrow sense. This figure rises to 27 million if one takes a broader definition of
slavery that includes pawnage, bonded labor and servile concubinage12. The vast majority
of the world’s slaves are in South Asia. But slavery is also practiced on our very soil.
According to the CIA, 14,500 to 17,000 victims are trafficked into the “Land of the Free”
every year, mostly due to human trafficking for domestic work, migrant farm labor, or
work in the sex industry13. Still today, States, the United Nations, non governmental
organizations, religious organizations and dedicated individuals are devoted to making
the abolition of slavery a reality, in every corner of the world. And there is no doubt in
my mind that they will succeed.
The world has come a long way from the days where it was perfectly normal to have two
categories of human beings: those born and living free, and those born or held as slaves.
Starting from the late 1700s, two hundred years of ongoing efforts were not in vain. The
early abolitionists knew there simply could not be any another way: humanity had to be
freed of the scourge of slavery. The remarkable time that was the eighteenth century
marked the beginning of the end of slavery.
What we wanted to show here, and what we hope you will retain from this little exposé
on the abolition of slavery, are the following five points.
• 1. Goals must not be shied away from merely because of their ambitious nature.
The history of the abolition of slavery, for one, teaches us that even some of the
most unthinkable goals can be achieved. In the 1800s, slavery was the norm.
And many thought that the economy of the European empires as well as our own
would collapse without slaves and the slave trade.
• 2. Goals that bring humanity to a higher level of civilization should guide us,
with the conviction that these goals will, over time, be reached. Abolitionists were
guided by their conscience: there was something inherently wrong in slavery,
there was something inherently right in the fight for all human beings to be born
and remain free in dignity and rights14.
• 3. Great achievements are built on a multitude of small steps that gradually
converge, but whose ultimate success is triggered by tipping points: defining
moments that will change the course of history. In our country, the 1808 ban was
4