The Netherlands and the Responsibility to ProtectSeptember 13, 2010 - nr.70
V. Summary and conclusions
Against the background of the questions formulated as the basis for this AIV advisory report, it seeks to contribute to a better understanding of the substance, status and scope of the Responsibility to Protect. It also examines several instruments that can help to put Responsibility to Protect into practice. Finally, it discusses the role of the Netherlands in developing the Responsibility to Protect and putting it into practice.
V.1 The significance of the Responsibility to Protect
A comprehensive approach
In the AIV’s view, R2P is not a brand new, separate concept that was only embraced by heads of state in 2005, but rather the culmination of an extended process of development. Placing R2P in its historical context, the AIV observes that it combines existing elements of international law (in particular as regards the obligations of the state) with complementary and innovative principles (primarily with regard to the responsibility of the international community). In general, the AIV believes that the comprehensive approach embodied by R2P is one of its main added values. R2P encompasses prevention, reaction and rebuilding and concerns the role of the state and the international community. This comprehensive approach is relatively new and is one of the features that distinguishes R2P from other approaches to large-scale human rights violations. Broadly speaking, R2P dovetails with the comprehensive approach to crisis management operations, a comparable method under which diplomatic, defence and development instruments are used in a coherent manner.
An emerging principle of international law
The AIV believes that, since its adoption in 2005, R2P should be regarded as a principle. States have agreed that R2P will constitute a basis for action, although they still need to work out how this will happen. However, it is clear that the R2P principle is already a growing source of inspiration and guidance in interpreting applicable international law on sovereignty, human rights and peace and security. At this stage, the AIV would therefore refer to R2P as an emerging principle of international law. In a sense, it is an overarching principle that defines the entire fabric of legal, moral and political obligations and responsibilities of states and the international community in the case of specific, actual or imminent, large-scale human rights violations.
Difference from humanitarian intervention
R2P differs significantly from – and is sometimes incompatible with – what is understood by humanitarian intervention, and the AIV believes that the two should not be confused with each other. R2P places a stronger emphasis on the perspective and primary interests of the threatened population. As described in the Outcome document of the UN World Summit, the Responsibility to Protect, in contrast to humanitarian intervention, encompasses a continuum of prevention, reaction and rebuilding, with measures ranging from early warning mechanisms to diplomatic pressure, coercive measures, holding perpetrators accountable and international assistance. Because R2P relates to a continuum, military resources can also be deployed during the preventive phase without necessarily leading to the use of force. Moreover, as described in the Outcome document, R2P is based on the premise that military intervention takes place with Security Council authorisation. Such authorisation is often not regarded as a prerequisite for humanitarian intervention.
Sovereignty and human rights
The R2P principle is based on the idea that sovereignty and human rights are two sides of the same coin and thus not mutually exclusive. Historically speaking, the idea that sovereignty is a responsibility that entails national and international obligations is not new, although it has not always been described as such.
The responsibility of states to protect persons within their jurisdictions against large-scale human rights violations is rarely disputed anymore, but the consensus on the role of the international community is fragile. Several member states appear to have genuine concerns about implementing R2P, especially as regards the role of the international community and the possibility of armed intervention. The AIV believes that the concerns of these states demand serious attention and, where necessary and appropriate, accommodation, if we are to make progress towards putting R2P into practice.
In general, the sovereignty debate is largely dominated by the possibility of using military force, either selectively or otherwise. However, this is ultimately only one aspect of R2P, which should in any case be regarded as a last resort.
To ensure the viability of R2P, the AIV believes that it is important to limit the principle to the four crimes mentioned in the Outcome document of the UN World Summit (genocide, war crimes, ethnic cleansing and crimes against humanity). At the same time, it is important to note that the duty of states to protect their own populations goes further than R2P. This is not to say that the international community should be indifferent to systematic human rights violations that fall outside the scope of R2P. In fact, the AIV foresees that extension of the principle may eventually be appropriate; but this will necessarily be a gradual process based on the development of international law.
V.2 Implementing the Responsibility to Protect
The AIV considers it important to clarify the conceptual aspects of R2P, among other reasons to facilitate progress on the operational front. However, since obtaining broader support for the further elaboration of the principle’s normative aspects is a long-term process, the AIV believes that progress must be made towards putting R2P into practice at the same time as its meaning is being clarified.
The instruments that can be employed to implement R2P encompass a wide range of activities. There are instruments that aim to achieve long-term effects (such as promoting economic development, human rights and good governance) as well as instruments aimed at having an immediate effect (such as preventive diplomacy and the use or threat of sanctions and international criminal prosecution). For the purpose of this advisory report, the AIV has examined several of the instruments that, if developed and fleshed out, could make a key contribution to putting R2P into practice. When selecting these instruments, the AIV took into account whether the Netherlands would be able to play a role in their advancement and development. This report focuses on the role of states and international organisations in implementing R2P. However, the AIV also notes that non-state actors, such as NGOs, often play a major role.
With regard to UN instruments, the AIV concludes, among other things, that the early warning system needs to be improved. This will require measures including the development of criteria for determining whether an R2P situation is either occurring or imminent. Based on these criteria, it should be possible to analyse troubling situations in a way that allows a realistic assessment of the threat of genocide, war crimes, ethnic cleansing or crimes against humanity. It is also important to monitor the impact on specific groups (e.g. women, children and indigenous peoples).
The Human Rights Council, the High Commissioner for Human Rights, the High Commissioner for Refugees, and the Office for the Coordination of Humanitarian Affairs can all play a greater role in collecting and analysing data. However, the collection and analysis of data as such appear to raise fewer problems than the question what happens with this information afterwards and how it can contribute to decision-making at international level. The AIV believes that one of the main objectives of R2P should be to help bridge the gap in the future between gathering information and taking action. To this end, it is vital to improve the UN’s early warning capability. The AIV believes that it would also be a good idea to establish an international advisory body of independent eminent persons to identify high-risk situations as early as possible, and recommends that the possibility of establishing such a body be examined as soon as possible.
The AIV notes that, in order to become a key player in reconstruction, the Peacebuilding Commission (PBC) established in 2005 should take up more situations – and at an earlier stage. The fact that the PBC’s mandate is still limited to post-conflict situations and encompasses neither prevention nor the conflict phase itself remains a serious design flaw. Moreover, the PBC should also develop its capability to make a meaningful contribution in difficult cases like Afghanistan and Iraq.
The AIV believes that the future of R2P lies largely at regional level. Due to greater proximity to the local area, it can be more effective to take measures, including preventive measures, at regional than at global level. Furthermore, a stronger sense of ownership can relieve certain measures of their controversial nature. However, it should be noted that a certain degree of global accountability is also desirable. Regional cooperation that is linked to global cooperation offers the best prospects. Where possible, the relationships and communication between the UN and regional actors should therefore be strengthened. The AIV also advocates supporting regional capacity building and the inter-regional exchange of best practices. The EU can play a key role in this regard; one of its strengths is the range of internal and external instruments that it has developed to help prevent violent conflict and promote the rule of law and human rights.
In escalating situations, or situations that threaten to escalate, the possibility of using non-military forms of pressure, such as financial or economic sanctions, arms embargoes or political sanctions, should be considered first. In such situations, the focus should be on targeted sanctions or smart sanctions, i.e. sanctions aimed at specific political leaders or members of their regime whose actions are a threat to peace and security. More attention should be devoted to the implications for R2P of the Stockholm Process (the Special Program on the Implementation of Targeted Sanctions) and, in particular, of its detailed recommendations on increasing the effectiveness of smart sanctions. It should also be borne in mind that the preventive deployment of military units can play a vital role in raising the effectiveness of non-military forms of pressure.
Furthermore, in line with what the UN Secretary-General has advocated, the AIV believes that the UN General Assembly can also make a useful contribution in this area, due to the legitimacy that its decisions have. The procedure laid down in the Uniting for Peace resolution of 1950 may provide a basis for General Assembly action.
Forms of military action
The AIV is keen to emphasise that the presence of well-equipped international troops can also play an important role during the preventive and post-conflict phases. Military action involving the use of force, sometimes called coercive protection missions, should be regarded as a last resort, after it has become clear that the state concerned is unable or unwilling to protect its population and if all peaceful means have failed.
The credibility and impact of the UN in implementing R2P largely depend on the consistency with which the principle can be applied and the extent to which arbitrariness can be avoided. With this in mind, the AIV supports the formulation of criteria for the use of force in a R2P framework. The list of criteria drawn up by the International Commission on Intervention and State Sovereignty can serve as a guideline. It focuses on: (a) just cause; (b) right intention; (c) last resort; (d) proportional means; and (e) reasonable prospects.
In a situation where the conditions for R2P have been satisfied but the Security Council is unable or unwilling to reach a decision, it follows that the international community, as embodied by the UN, has not managed to take responsibility and, strictly speaking, that the R2P principle has failed. The AIV wishes to emphasise that using force in R2P situations without Security Council authorisation is prohibited under existing international law. Partly in the light of recent developments, the AIV advocates a high level of restraint in this area. In the absence of a Security Council mandate, such intervention could be legitimised on the grounds of an exceptional humanitarian emergency, but this should never be treated as a licence for unauthorised action by third parties.
The AIV believes that such interventions should ultimately be given a status under international law. To this end room should be made within international law for using force in R2P situations in the case of exceptional emergencies, even in the absence of a Security Council mandate. This could eventually relieve the tensions that are now emerging between legality and legitimacy, which the AIV regards as undesirable in principle.
Civilian and military capacity
Almost all post-conflict situations are characterised by a public security vacuum in which the rule of law and all related institutions have been dismantled or seriously undermined. Restoring them requires assistance in several areas, such as rebuilding a police force, the judiciary and public institutions. In this phase, while the presence of a modest international military force will generally be required, there will also be a need for police officers, judges, public prosecutors and advisors on public administration. Civilian organisations that specialise in such fields as dealing with trauma, preventing sexual violence and rehabilitating young people might also be needed.
UN and other peace operations nowadays include a civilian component, but the fragmented system that currently exists needs to be improved and strengthened. Given the large number of UN peace missions with a civilian component, the UN must continue in the coming years to devote unflagging attention to improving the system for civilian standby capacity. The same applies to other global and regional intergovernmental organisations and member states that participate in peace operations.
As regards military capacity, the AIV has noted that there is little support for the development of a rapid reaction capability (a standing force) within the UN. At present, it appears that the only viable way of providing the necessary military capacity is to ensure that the UN, regional organisations and individual member states have adequate standby arrangements.
A limited number of international organisations have both the competence and the capacity, up to a point, to take military action in the case of genocide, war crimes, ethnic cleansing and crimes against humanity, namely the UN, the EU, the AU, ECOWAS and NATO. The AIV recommends that support for regional capacity building in the framework of the ASF and the ESF should continue where possible. For now, NATO and ad hoc coalitions are still the best option when there is a need for urgent and immediate intervention involving a large number of troops at the high end of the spectrum of force.
Both international organisations and individual states appear to have hardly any doctrine and training that are specifically tailored to protecting civilians against the mass atrocities discussed in this report. The UN is currently working on an operational concept that is meant to provide a strategic framework for protecting civilians during UN peace operations. The AIV believes that other organisations and individual states should focus more on civilian protection when reviewing their policies on peace and stabilisation operations. The review of NATO’s Strategic Concept, for example, provides an opportunity to take up this issue.
V.3 The role of the Netherlands
Enshrining R2P in international law, developing it and making it operational all require time, commitment and constant attention. At the same time, or perhaps slightly in advance of the process, the principle will slowly but surely have to take shape as it is being implemented.
The AIV believes that these processes require a number of driving forces and that the Netherlands could put itself forward as one of these. This is consistent with the active role that the Netherlands has played so far with regard to R2P. It would also be in keeping with the importance that the Netherlands attaches to the international promotion and protection of human rights and with its duty under article 90 of the Dutch Constitution to promote the development of the international legal order. On this basis, the AIV concludes that the Netherlands should give the further development and implementation of R2P a role in its foreign and defence policy, in the wider context of promoting and protecting human rights. The AIV would make several recommendations as to how this could be done.
Dutch policymaking and organisational structure
In so far as the government’s own policymaking and organisational structure are concerned, the AIV advises it to form a clear picture of the substance, status and scope of R2P in so far as it has not already done so.
As regards the practical side of R2P, the AIV advises the government to examine the instruments it has at its disposal in order to assess their adequacy in responding to an actual or imminent R2P crisis. We advise the government to pursue its long-term efforts to promote development, human rights, the rule of law and security sector reform, so that the Netherlands can rightly claim that it attaches great importance to the practicability and implementation of R2P. We also advise the government to organise its own machinery in such a way that it is able to act decisively in different conflict phases. Finally, the government should consider how it can make the best possible use of the diplomatic tools that it has at its disposal.
As regards the availability of civilian capacity in the Netherlands, the AIV advises the government to decide as soon as possible on the establishment of a pool of rapidly deployable civilian experts from various backgrounds, who play a key role in crisis management situations (in line with previous advisory reports on this issue).
The AIV advises the government to incorporate and/or elaborate R2P and the concept of civilian protection when formulating strategic visions and doctrines for the Dutch armed forces. R2P should also be a focus in policy development in multilateral organisations of which the Netherlands is a member.
In a similar vein, the AIV believes that the government should consider how the Dutch contribution to military action in an R2P context (as part of UN, EU or NATO operations or ad hoc coalitions) can be most effective and under what conditions it would be willing to provide troops, in compliance with the existing Terms of Reference for decision-making on the deployment of Dutch military units abroad. At the least, application of the R2P principle requires clear mandates and rules of engagement for the troops that are to be deployed. The operational requirements for the successful military implementation of R2P should be worked out in greater detail prior to deployment.
The AIV considers it desirable for the Netherlands to participate in the further development of criteria for the use of force in the context of R2P, if possible in a restricted international group (e.g. the EU or the Group of Friends of the Responsibility to Protect). These criteria can serve as guidelines for Dutch policy and stimulate the international debate on this issue.
Dutch participation in international action
Although it is clear that there is currently little scope in New York for a normative debate on the further interpretation and definition of R2P, the AIV advises the government to make an effort to conduct or facilitate the debate on conceptual issues on a smaller scale. We also advise the government to seek dialogue with countries that are less enthusiastic about R2P in order to bring a common position on the substance of R2P a step closer. The Netherlands could act as a bridge-builder and approach the countries concerned – where possible and appropriate together with like-minded countries – either bilaterally or through regional forums. When doing so, the government should focus on the more development-oriented priorities of states that are less enthusiastic about other aspects of R2P.
The AIV advises the government, where possible, to help strengthen the UN’s R2P instruments, especially those relating to the preventive phase. For example, the Netherlands could (perhaps together with its EU partners) help to develop more detailed criteria for determining whether an R2P situation is either occurring or imminent. It could also push for a larger role for the Human Rights Council, for the deployment of fact-finding missions, and for timely mediation activities by specially selected and trained Special Representatives of the UN Secretary-General.
The AIV advises the government to promote regional cooperation and inter-regional learning processes as much as possible, either financially or otherwise. The way in which the EU has developed into a successful model of regional cooperation can serve as an example. We attach great importance to promoting cooperation and communication between regional actors and the UN. We accordingly advise the government to do its utmost to ensure that the EU adopts a common position on the entire issue of R2P.
In the AIV’s opinion, it is also logical for the Netherlands to push for a strong follow-up to the Stockholm Process and for the implementation of proposals to increase the effectiveness of sanction regimes. At the same time, the government could examine more closely how smart sanctions might be applied in the context of R2P.
As regards military action, the AIV believes that the Netherlands should seek to ensure that progress is made in formulating criteria for the use of force (with a Security Council mandate) in the context of R2P, even if there is currently little scope for this effort. We also advise the government (bilaterally or through the EU) to start – or continue – supporting capacity building in support of regional organisations like the African Union and ECOWAS. In the debate on NATO’s future tasks, the Netherlands should take the position that NATO action in actual or imminent R2P situations should be possible, provided that it is based on a mandate – and preferably an explicit request – from the Security Council.
Finally, the AIV advises the government to play an active role, within the UN and other organisations that have both the competence and the capacity to take military action, in making mandates to protect civilians operational.
V.4 In conclusion
The AIV wishes to conclude this advisory report with two general observations.
Firstly, the AIV notes that the Responsibility to Protect represents a significant shift in the thinking on the principle of non-intervention, as laid down in Article 2(7) of the UN Charter. Originally this principle focused broadly on non-intervention in the domestic affairs of states (with the exception of Security Council measures under Chapter VII). As described in this advisory report, there are now various areas in which external interference is increasingly allowed (not only in the area of human rights but also, for example, in the areas of trade and the environment). The Responsibility to Protect goes a step further. As a principle, it does not just permit intervention but actually creates an international responsibility to take action in certain cases. The original prohibition on intervention, a negative obligation, has thus been replaced by a responsibility or positive obligation to take action in situations where civilian lives are at stake. This development is linked to the humanisation of the international legal order. In the AIV’s view, it is of great general importance. It shows that states see ensuring the lasting protection of human rights by the international community as a shared responsibility. This may also be increasingly true for other areas, like the environment.
Secondly, it is appropriate to close this advisory report on preventing large-scale human rights violations with a comment on the importance of the political will to act. In drafting this advisory report, the AIV set itself the goal of examining how the development and implementation of the Responsibility to Protect can be promoted and what the Netherlands can contribute. We are aware that it takes more to avert an actual or imminent genocide than formulating a normative framework for action and preparing the right instruments for use. As already noted, one of the key objectives of the Responsibility to Protect is to bridge the gap between gathering information and taking action in the future. In this context, a political will to act at national and international level is of overriding importance. The question how such political will can be mobilised falls outside the scope of this advisory report. However, the AIV wishes to make the following general observation on this issue. The fact that there is a normative framework based on a common responsibility to protect and that the necessary instruments are available does not mean that action by the international community, as embodied by the UN, can be guaranteed. However, states will find it increasingly hard to justify a lack of political will to take action against genocide, war crimes, ethnic cleansing and crimes against humanity – whether actual or imminent – to the media, civil society, the general public and, especially, the civilians whose rights and lives are at stake.
The advisory Council on International Affairs (AIV) prepared this advisory report on its own initiative.
GOVERNMENT RESPONSE TO THE AIV’S ADVISORY REPORT ‘THE NETHERLANDS AND THE RESPONSIBILITY TO PROTECT’
The government is grateful to the Advisory Council on International Affairs (AIV) for its advisory report entitled ‘The Netherlands and the Responsibility to Protect’. In recent years, the Netherlands has been a strong advocate of the Responsibility to Protect’ (R2P). Against this background, the AIV decided that it would be a good idea to issue an advisory report on R2P. The government considers the report to be a valuable and well-documented endorsement of the policy advocated by the Netherlands in this area.
In this response to the advisory report, the government will first examine the question of what R2P is. It will then go on to explain how it can be made operational.
2. Normative significance of R2P
In 2005, heads of state and government attending the United Nations World Summit reached agreement on R2P.1 Since then, the UN Secretary-General has issued two reports on the subject. The first was ‘Implementing the Responsibility to Protect’ (January 2009). In the second report, ‘Early Warning, Assessment and the Responsibility to Protect’ (July 2010), the Secretary-General focused on one particular aspect of making R2P operational.
In his first report, the Secretary-General identifies three ‘pillars’ of R2P. Pillar One stresses that sovereign states bear primary responsibility for protecting their populations against the four R2P crimes: genocide, war crimes, ethnic cleansing and crimes against humanity. Pillar Two addresses the commitment of the international community to assist states in meeting their obligations, notably through capacity building. Finally, Pillar Three focuses on the responsibility of member states to respond collectively in a timely and decisive manner when a state cannot or will not protect its population against the four R2P crimes.
The AIV believes that since the publication of the Outcome document in 2005, relatively little tangible progress has been made in applying R2P. The government shares the AIV’s view that it is important to clarify the normative significance of R2P in order to increase the political support needed to make R2P operational. Since 2005, as the AIV states, R2P has become an accepted principle and basis for action. Parts of R2P, particularly the responsibility of states to protect all persons within their jurisdiction, already had a basis in international law (e.g. the Geneva Conventions (war crimes), the Genocide Convention and the Convention against Torture). As an overarching principle, R2P does not yet have the status of strictly defined international law. The government therefore regards it as primarily ‘a political and moral best-efforts obligation that does not entail a legal obligation to achieve a result’ – in the words of the government response to the AIV advisory report ‘Transitional Justice: Justice and Peace in Situations of Transition’.
Like the AIV, the government is not in favour of broadening the scope of R2P – for instance to include protection against the violation of socioeconomic rights. This could water down the basic principle and undermine its effectiveness. Moreover, it could pave the way for the international community to intervene in sovereign states for extremely diverse reasons. Critics of R2P might regard this as confirmation of their fear that the principle could be abused or applied arbitrarily.
In line with the AIV’s recommendation, the Netherlands will pursue the normative debate on the further interpretation and definition of R2P in the EU context, and, if appropriate, in New York. The EU is already an active champion of R2P. Since July 2010 the Netherlands has been co-chair of the Group of Friends of R2P in New York. Through the Group of Friends the Netherlands will undertake broad outreach activities (from bilateral talks to seminars) and thus address the concerns of critics concerned that R2P could be abused.
3. Making R2P operational
The main question is how R2P can be shaped in practice. In this response, the government will first consider regional organisations and the importance of early warning. It will then consider the three pillars in the context of making R2P operational. Finally, it will look at the possible role to be played by the Netherlands as proposed by the AIV. The government would again emphasise that the primary responsibility for protecting the population lies with individual sovereign states.
3.1 Regional organisations
The government agrees with the AIV’s conclusion that to a great degree, the future of R2P lies at regional level. Since R2P will always have to be tailored to individual situations, regional and subregional organisations will always play a significant role in practice. In 2011, the UN Secretary-General is expected to issue a report about UN cooperation on R2P with such organisations. Through forums such as the Group of Friends, the Netherlands will press for an ambitious report with concrete recommendations, sufficient input from regional organisations and a prompt debate in the United Nations General Assembly.
3.2 Early warning
It is vital to recognise R2P situations early on. In his report of July 2010, the UN Secretary-General made a number of proposals for improving early warning capacity within the United Nations.
One specific proposal in the Secretary-General’s report was to establish a joint office of the Special Adviser on the Prevention of Genocide and the Special Adviser on the Responsibility to Protect. This will enhance both information and analysis within the UN. The Netherlands has successfully lobbied for this office to become a regular part of the UN secretariat in financing and organisational terms.
The Special Adviser on the Prevention of Genocide has set up a framework for assessing and analysing data on genocide. The Analysis Framework comprises eight categories of factors ‘to determine whether there may be a risk of genocide in a given situation’.2 The Special Adviser is currently adapting the Framework so it can be applied to all R2P situations. The government will actively support these efforts.
Finally, for sufficient relevant data to be acquired, actors must be willing to share information. During the General Assembly debate on early warning, the Netherlands advocated better protection of confidential information and will continue to do so in the future. This could increase countries’ willingness to exchange information.
3.3 Pillar One: The protection responsibilities of the State
States should be better equipped to protect their own people. The government will continue to encourage individual countries to become party to relevant international conventions, including those on human rights. Combating impunity and promoting the international legal order are anchored in foreign policy and in article 90 of the Constitution. It is therefore important that countries implement the legislation that seeks to end impunity for the four R2P crimes. Accession to the international conventions need not have an immediate preventive effect on offenders, but the government believes it is vital to have a normative framework that enjoys international support. This not only has the advantage of making clear to the population the responsibility borne by the state. It also increases the pressure on a state to protect its population in an R2P situation.
The government also supports the proposal of the UN Secretary-General and the AIV to promote the regional exchange of best practices in implementing relevant international human rights and humanitarian standards. Finally, the government envisages a monitoring role for the Human Rights Council and the Special Rapporteurs and additionally by means of the Universal Periodic Review process.
3.4 Pillar Two: International assistance and capacity building
The measures to be taken by the international community to support states in protecting their people include urging states to meet their Pillar One responsibilities and capacity-building efforts. Deploying UN officials such as the High Commissioners for human rights and refugees, as well as Special Advisers, Representatives and Envoys, can help to prevent conflict. The government would emphasise that, as far as possible, they must work within existing structures to ensure that the results of their efforts are sustainable.
Capacity building for R2P is usually addressed as part of the development policy of international organisations and individual countries: programmes that help to build the rule of law, promote good governance, reform the security sector or target socioeconomic development. These programmes equip countries to protect their populations independently and also contribute to conflict prevention. The Netherlands is well known as an active donor in these areas and the government will continue to prioritise them.
The government also believes that promoting human rights should be an integral part of programmes to develop good governance and the rule of law. In its human rights policy for the coming years, the government will opt for an approach that integrates human rights, peace and security. The updated human rights strategy will elaborate on this further, and will be presented to parliament by the Minister of Foreign Affairs no later than 1 April 2011.
3.5 Pillar Three: Timely and decisive response – special military and civilian missions
The responsibility of the international community changes in character whenever states cannot or will not protect their populations against the four R2P crimes.
Decisions about the instruments to be deployed are mainly taken in the United Nations Security Council. The options include mediation, suspension of membership, targeted sanctions and arms embargoes, and also civilian and military intervention. To ensure timely decision-making, the Secretary-General takes upon himself the responsibility to tell the Security Council ‘what it needs to know, not what it wants to hear’. He also asks the five permanent members of the Security Council to refrain from using their power of veto during decision-making about intervening in R2P situations.
In the government’s opinion, reform of the Security Council ultimately offers the best prospects for more effective intervention by the international community. The government has repeatedly called for the Security Council to be more representative, which would enhance its legitimacy. Within the framework of Security Council reform debates, the Netherlands supports the above-mentioned concept of limiting the veto power of the five permanent members.
In discussing the instruments to be deployed in the interests of timely and decisive action, the AIV mainly focuses on military and civilian missions. Deploying such missions entails major challenges. That is why the government also considers this instrument to be key.
Given the growing need within the EU, NATO, the OSCE and the UN for military and civilian missions, these organisations will probably continue to seek substantial contributions from their member states in the future. The government acknowledges that there is a great demand for civilian expertise, but that this is in short supply within the public sector, partly because of domestic needs and obligations. The government intends to develop a national strategy for Dutch involvement in civilian missions. This will set out the Netherlands’ goals in respect of civilian deployment (possibly with supplementary input from the private sector) and will also contain strategic emphases. The government is looking into the feasibility of setting up an interministerial pool of experts. Meanwhile, the Ministry of Foreign Affairs is providing its own deployment capacity (the ‘civilian capacity pool’) with further professional training.
The demand for Dutch military capability will mainly focus on high-quality military contributions to operations in complex conflict situations, where close cooperation with civilian parties is often required.3 High-calibre armed forces such as those of the Netherlands require only a small number of troops to make a relatively major contribution to such operations and thereby to their success. Besides operations, civil-military cooperation will continue to be a major factor in the field of security and in advising on security sector reform.
The government agrees with the AIV that further development of the UN’s rapid reaction capability enjoys only limited international support. In the government’s view, the existing instruments in this field, such as the EU Battlegroups, the NATO Response Force and the civil-military European Gendarmerie Force are sufficient. In addition to capacity building at national level, the Netherlands also believes that the development of regional instruments such as the African Union’s two regional brigades (EASBRIG and ECOWAS) merits further support.
b. Modalities for military action
According to the AIV, when the issue of military action arises, thoughts often automatically turn to armed intervention on the basis of Chapter VII of the UN Charter. The government agrees with the AIV that well-equipped international troops can also play an important role during the preventive and post-conflict phases.
Equally, the use of force is the most controversial element in the range of R2P instruments. For its views on the legal basis and mandates of missions in which the Netherlands is considering participation and on the concept of humanitarian intervention, the Netherlands would refer to the relevant memoranda previously presented to Parliament.4 Of course, the 2009 Terms of Reference remain the primary tool for Dutch decision-making on deployment of its military capability.
c. Regional cooperation
Effective cooperation between the UN and regional organisations enhances the effectiveness of military intervention. Cooperation is all the more important given that troops are increasingly deployed via the EU, NATO and the African Union (AU).
The growing number of EU operations and missions means that there is an urgent need for effective cooperation between the UN and the EU. Improvements are needed in the fields of interoperability, reciprocal logistic support and shared standards for police and rule-of-law activities. At EU level, the Netherlands is calling for concrete steps to be taken in these fields.
NATO’s major operational and military capability makes it an important partner for the UN. The government is in favour of stepping up this cooperation which has a clear place in NATO’s new Strategic Concept.
As a regional organisation, the AU sees a role for itself in peacekeeping and security enforcement on the continent of Africa. For financing, logistics and military support it envisages a role for the UN. In line with the AIV’s recommendation, the Netherlands supports the AU’s African Peace and Security Architecture.
The government observes that R2P is being increasingly considered worldwide as a principle in international relations. It is based on three pillars. States have a responsibility to protect their populations against the four R2P crimes: genocide, ethnic cleansing, crimes against humanity and war crimes. The international community must assist states who need help in guaranteeing the protection of their people more effectively. The international community has a responsibility to respond collectively in a timely and decisive manner if a state cannot or will not protect its own people against mass atrocities. All countries should contribute to this principle. Parts of the principle are grounded in international law, but the three pillars of R2P together are not yet enshrined in clearly defined international law. This is particularly true of Pillar Three. In the coming years, the debate will be about defining R2P more clearly and possibly about anchoring the principle in law. This will be a difficult process. The result will partly be influenced by the way in which R2P is fulfilled in practice.
R2P occupies an important place within Dutch foreign policy, particularly that aimed at promoting human rights and developing the international legal order. In line with the AIV’s recommendation, the Netherlands will pursue the discussion about the normative significance of R2P and continue its efforts toward making R2P operational.
1 Paragraphs 138 and 139 of the 2005 World Summit Outcome document.
3 2010 Future Policy Survey ‘A New Foundation for the Netherlands Armed Forces’ (29 March 2010), p.111.
4 Memorandum on the legal basis and mandate of missions involving Dutch military units (Parliamentary Papers 2006-2007, 29 521, no. 41, p.8), which also refers to the Kosovo crisis of 1999 and the AIV advisory report, ‘Humanitarian Intervention’ (2000), p. 25; Memorandum on Humanitarian Intervention (2001), (Parliamentary Papers 2001–2002, 27 742, no. 5).