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Taking Stock of R2P

Panel Presentation by Professor the Hon Gareth Evans, Co-Chair of the International Commission on Intervention & State Sovereignty 2001 and the Global Centre for the Responsibility to Protect, to the Thematic Event Convened by the President of the UN General Assembly, From Commitment to Implementation: Ten Years of the Responsibility to Protect, Trusteeship Council Chamber, New York, 26 February 2016

R2P was designed for pragmatists, not purists. Those of us involved in its creation were not trying to create new international legal rules or undermine old ones. We knew that in the real world it was going to be hard to get perfect results - to end mass atrocity crimes once and for all. But we wanted to do much, much better than we had in the 1990s and decades and centuries before: to at least create a world in which genocide, other crimes against humanity and major war crimes were regarded, whenever and wherever they occurred, as everyone’s business, not nobody’s.

So, looking back over the last decade - and the 15 years since the Commission report that gave birth to the idea of R2P - how well have we succeeded? Looking at the horrible aftermath of the initially-successful R2P-based military intervention in Libya, and the present catastrophe in Syria, where (largely because of concern over what went wrong in Libya) R2P has gained no traction at all, it would be easy to be cynical - as some still are - and say that nothing at all has changed for the better. But let me give you a more positive stocktake, using as my benchmarks the four big things that R2P was designed to be: a normative force; a catalyst for institutional change; a framework for preventive action; and a framework for effective reactive action when prevention has failed.

R2P as a Normative Force.  There has been continuing growth in acceptance of R2P as a principle, or normative standard - in a way that would have been unimaginable for the earlier concept of “humanitarian intervention” which R2P has now almost completely, and rightly, displaced. Although many states are still clearly more comfortable with the first two pillars of R2P than they are with the third, and there will always be argument about what precise form action should take in a particular case, there is no longer any serious dissent evident in relation to any of the elements of the 2005 Resolution.

On the basic issue of principle, a genuine - and unprecedented - global consensus has emerged over the last ten years that state sovereignty is not a license to kill, that mass atrocity crimes - even those committed entirely within a state’s borders - are the world’s business. The best evidence lies in the General Assembly’s annual interactive debates since 2009, which have shown ever stronger and more clearly articulated support for the new norm, and in the more than 40 resolutions referencing R2P that have now been passed by the Security Council (35 of them after the divisions over Libya in 2011).

Of course words without action are not enough - and the rest of my remarks will be all about ensuring that principles are matched by practice. But words continue to matter enormously, and it is crucial to ensure that R2P principles are talked up by leaders everywhere, and wherever possible formally consolidated and reinforced. In that context, another substantive resolution from the General Assembly, clearly reaffirming the core normative commitment made at the 2005 World Summit, is now overdue, and I hope there will be warm support for the resolution shortly to come before the General Assembly drafted by the strong cross-regional group of Australia, Botswana, Brazil, Denmark, Ghana, Guatemala, the Republic of Korea and Slovenia.

R2P as an Institutional Catalyst.  All the normative consolidation in the world will not be of much use if R2P is not capable of delivering protection in practice. That means for a start the continued evolution of institutional preparedness, at the national, regional and global level, particularly at the crucial stages of early prevention, and early reaction to warning signs of impending catastrophe. R2P has been a change agent here, with civilian response capability receiving much more organized attention, and militaries rethinking their force configuration, doctrine, rules of engagement, and training to deal better with mass atrocity response operations, which often need to fall somewhere between peacekeeping and full-scale war fighting. under both pillars two and three.

Of huge importance has been the move to establish “focal points” - designated high-level officials whose job is to analyze atrocity risk and mobilize appropriate responses. There are now more than 50 members of the “Global Network of R2P Focal Points” convened by the Global Centre which I chair. But here as elsewhere more needs to be done - not least right here at UN Headquarters, where the roles of the Special Adviser on the Prevention of Genocide and, unhappily still only part-time, Special Adviser on R2P, need to be not only recognized, but rationalised, coordinated and strengthened.

R2P as a Preventive Framework.  The credibility of the whole R2P enterprise has depended from the outset on giving central importance to prevention. And here, especially in the context of post-crisis prevention of recurrence, R2P-driven strategies have had a number of notable successes, notably in Kenya after 2008; the West African cases of Sierra Leone after 2002, Liberia after 2003, Guinea after 2010, and Cote d’Ivoire after 2011; and, it’s probably fair to say, Kyrgyzstan after 2010.  Most peacekeeping operations now have protection of civilians mandates - built on R2P’s sister concept of Protection of Civilians in Armed Conflict (POC) - and most of the time those operations are succeeding in keeping the lids on some often very simmering pots.

On the other hand, while there is now a very good understanding of the large toolbox of preventive measures available at all stages of the conflict cycle, and a very long tradition of regular lip-service being paid to the need for effective prevention, not least in this building, the record of practical delivery is not nearly as strong as it should be. Part of the problem of getting sufficient resources to engage in successful prevention is the age-old one that success here means that nothing visible actually happens: no-one gets the kind of credit that is always on offer for effective fire-fighting a after the event. It is the responsibility of all of us to continue working to change that culture.

R2P as a Reactive Framework.  This is where the rubber hits the road. What do we do if a state, through incapacity or ill-will, has failed to meet its Pillar One responsibilities? What do we do if prevention has manifestly failed, and mass atrocity crimes are actually occurring or imminently about to occur? The not-so-good news is that on the critical challenge of stopping mass atrocity crimes that are under way, whether through diplomatic persuasion, stronger measures like sanctions or criminal prosecutions, or through military intervention, and acting under either pillar two or pillar three, R2P’s record has been mixed, at best.

There have been some success stories: Kenya in 2008, Cote d’Ivoire, and - at least initially - Libya in 2011. And some partial success can be claimed for the new or revitalized UN peacekeeping operations in Congo, South Sudan, and the CAR. But there have also been some serious failures, certainly including Sri Lanka in 2009. In Sudan, where the original crisis in Darfur predates R2P but the situation continues to deteriorate, President Omar al-Bashir remains effectively untouched either by his International Criminal Court indictment or multiple Security Council resolutions. We are not doing as well as we should be in stopping non-state actors like Boko Haram committing atrocity crimes in territory over which they have control. And, above all, there has been catastrophic international paralysis over Syria.

The crucial lapse in Syria occurred in mid-2011, when the Assad regime’s violence was one-sided and containable. Driven by the perception, not itself unreasonable, that the Western powers had overreached in Libya by stretching a limited mandate to protect civilians into a regime-change crusade, a number of Security Council members then over-reached in the other direction: seeing another slippery slope in Syria, there was no majority support for a resolution even just to condemn the regime’s violence against unarmed civilians. And with the Syrian leadership sensing its impunity, the situation deteriorated quickly into the full-scale civil war raging today.

There is no more important or urgent task for R2P advocates than to rebuild consensus within the Security Council as to the right way to handle the hardest of cases, when it may well be that the threat or use of coercive military force is the only way of stopping catastrophic atrocity crimes in their tracks. Re-establishing that consensus is not impossible, but it will take time. Brazil’s “responsibility while protecting” (RWP) proposal remains the most constructive of all the suggested ways forward, requiring as it would all Council members to accept close monitoring and review of any coercive military mandate throughout such a mandate’s lifetime. I hope it continues to be seriously debated.

There are a number of other ways in which Security Council practice could be modified to enhance its responsibility when handling atrocity crime cases, which I also hope will be taken seriously by Council members. They include embracing the Accountability, Coherence and Transparency (ACT) Group’s Code of Conduct and French/Mexico veto restraint initiatives, both of which are receiving increasing support from the wider UN membership.

Complete, fully effective implementation of R2P remains some way off. But I see no evidence anywhere that anyone wants a return to the bad old days, when the whole UN was a consensus free zone on mass atrocity crime issues. We should never forget how bad those days could be. In November 1975, seven months after the Khmer Rouge had commenced its genocidal slaughter, US Secretary of State Henry Kissinger famously said to Thai Foreign Minister Chatichai Choonhavan: “You should also tell the Cambodians [the Khmer Rouge] that we will be friends with them. They are murderous thugs, but we won’t let that stand in our way.”

As cynical as our political leaders sometimes remain - and as a long-time politician myself, I know a fair bit about that culture (diplomats of course are different...) - it’s hard to imagine any of them today feeling able to talk like that. That’s a measure of how far we have come with R2P.

But it is also a reminder of how far we can fall again if we do not strive with all our might to consolidate and strengthen the gains that we have made. To now allow R2P to fade away into irrelevance would be to make a mockery of everything the UN Charter stands for, and to defile our common humanity.