No more Rwandas or Darfurs: The International Responsibility to Protect
Address by Gareth Evans, President of International Crisis Group, to Sydney Peace Foundation, University of Sydney, 3 September 2004
‘Never again’ we said after the Holocaust. And after the Cambodian genocide in the 1970. And then again after the Rwanda genocide in 1994. And then, just a year later, after the Srbrenica massacre in Bosnia. And now we’re asking ourselves, in the face of more mass killing and dying in Darfur, whether we really are capable, as an international community, of stopping nation-states murdering their own people – with some 50,000 dead already, the Janjaweed militia either out of control or being controlled all too destructively by Khartoum, well over 1 million displaced, and disease and malnutrition likely to kill another 1000 a day. How many more times will we look back wondering, with varying degrees of incomprehension, horror, anger and shame, how we could have let it all happen?
Of course Darfur is by no means not the only current man-made catastrophe, or potential catastrophe, on the International Crisis Group’s agenda. Nor is it the only issue of global or regional security with which I am concerned wearing my various other current international hats as a member of the Secretary General’s High Level Panel on 21st century security threats and our capacity to deal with them, and of Hans Blix’s Commission on Weapons of Mass Destruction. As we all are, I am deeply troubled, for example, by:
the continued serious threat of terrorism (and our manifest inability to deal with it by police and military measures alone)
the threat of proliferation of weapons of mass destruction (most seriously posed by Iran, and by a North Korea which has dramatically increased its capability in the last year as US-led diplomacy has foundered)
by the problem of failed, failing and fragile states worldwide (which are both a problem in their own right for their own people, and an ever increasing source of security concern elsewhere, and which we are not effectively addressing, particularly in post conflict situations), and
by the way in which we seem to have lost our bearings, not least in the context of the war on Iraq, when it comes to the rules and principles governing the use of military force: with states arguably going to war when they should not, and not going to war when they should.
All that said, when we look around us at the international security scene, not all the news is bad. Contrary to most people’s impressions, the number of violent conflicts – and people being killed in them – has in fact diminished quite dramatically in recent years: from an annual average of over 200,000 deaths a year through most of the 1990s to around 20,000 now. There are a number of possible explanations for this, but one of the best is that – for all the things that continue to go wrong – the international community (including major NGOs like my own) is becoming much better at conflict prevention and resolution, with more early warning, more early engagement, more diplomatic and other resources engaged, and more willingness by the Security Council and some regional organisations (including African Union and our own Pacific Islands Forum) to immerse themselves in peacemaking, peace enforcement, peacekeeping and post-conflict peacebuilding.
But what is not such good news – to return to my main theme - is that, whatever other positive developments we have witnessed in recent years, there are still plenty of things going wrong. And perhaps foremost among them is our apparent congenital inability to react quickly and effectively as an international community when cases come along, as they have now again with Darfur, of conscience-shocking mass violence occurring within the borders of a sovereign state.
We are still a long way away from reaching consensus about what kind of international intervention, in particular coercive military ‘humanitarian intervention’, is justified, and when, in these situations. There continues to be enormous disagreement as to whether there is any right of intervention at all, how and when any intervention should be undertaken, and under whose authority. And while the disagreement continues, people keep dying.
Why so Intractable?
There are several reasons why this problem has proved so hard to resolve. The first is simply that there are no clear existing international law rules. The UN Charter is at best neutral on the subject, and at worst negative. The founders of the UN, preoccupied as they were with countering aggressive war, enshrined as the basic norms of international relations the principle of the equality of sovereign states (Article 2.1) and their non-intervention in each other’s domestic affairs (Article 2.7).
At the same time the UN founders were conscious of the catastrophic human rights violations of the preceding years – above all the Nazi genocide – and this did generate a new momentum for the better protection by international law of individual human rights. At least a toehold of recognition was gained for human rights in the terms of the Charter itself, and standards were spelled out more comprehensively in the Universal Declaration of Human Rights and the subsequently negotiated Conventions on Civil and Political Rights, and on Economic, Social and Cultural Rights, not to mention the very specifically focused Genocide Convention (although the requirement under that convention that there not only be particular acts but explicit genocidal intent makes it very difficult to apply in practice.)
Unfortunately the limits on state sovereignty implied by human rights standards were not set out in the Charter nearly as clearly as the principle of sovereignty itself. And so the tension at the heart of the Charter – between state security and human security, between state rights and human rights - remained essentially unresolved. The criminality involved in the government of a state attacking and invading another was amply recognised, and mechanisms to deal with it amply provided.
However, in relation to the criminality of a government perpetrating or acquiescing in large-scale killings of its own people, those who wrote the Charter gave no guidance at all. The Security Council can, if it chooses, characterise these essentially internal situations as amounting to a ‘threat to international peace security’, and as such use its authority under the Charter to authorise enforcement measures, but there is an obvious element of artificiality and discomfort involved in doing this which makes the achievement of consensus extremely difficult.
The second reason for the issue of humanitarian intervention being so difficult to resolve is the emotional attachment to state sovereignty by so many countries. All states hate the idea they might be the target of a coercive external intervention. Latin American states are particularly sensitive given the history of the region. And the principle of non-intervention has proved wonderfully attractive to the legions of new states who have joined the UN in the decades since – increasing its numbers from 51 to the present 191 as the tide of decolonisation and post-Cold War state fragmentation proceeded. Sovereignty hard won is sovereignty not lightly conceded, and it is not surprising that for many of the new states an extreme interpretation of Article 2, seen as immunising them from almost any external scrutiny at all, has become something of an article of faith. That sentiment is stronger in Asia than sub-Saharan Africa, where the despair in recent years has been as much about the lack of intervention as its happening.
Around Asia, perhaps more than anywhere else in the world except Latin America, there certainly seems to be a visceral discomfort with the whole idea of intervening in what goes on inside other countries. There is great caution about accepting outside involvement even at the softest end of the spectrum, involving mediation and facilitation: for example India’s neuralgia about any form of international assistance in Kashmir, Indonesia’s renewed hostility to external mediation in Aceh, and Myanmar’s deep reluctance to allow any substantive role for UN special envoy Razali Ismail or anyone else (although there have been Asian counter-examples, including Norway’s continuing role in Sri Lanka and the whole Cambodian peace process in the late 80s and early 90s). That caution turns to acute anxiety when any suggestion is made of coercive intervention in the form of sanctions and the like; and to really extreme concern when the intervention in issue involves full scale military force.
A third reason for the difficulty of this issue, reinforcing the last point, is the memory of many of those in the developing world as to how intervention has been used and misused in the past. Africans remember all too well what French missions civilisatrices meant for them. Latin Americans understandably think of the Monroe Doctrine as not so much designed to keep the Europeans off their backs as the Americans on them.
And now suspicions have been reinforced all over again by the use of the humanitarian intervention rationale – action to depose a tyrant, to protect the country’s people - to justify the war in Iraq: not from the outset, but as other rationales fell away. As weapons of mass destruction failed to turn up, and the evidence of Saddam Hussein’s links with terrorists failed to get any stronger, Tony Blair and other defenders of the war were forced back to supporting it on straightforward humanitarian intervention grounds: Saddam’s gross mistreatment of his own people, which reached genocidal levels in his use of chemical weapons against Kurds in the late 80s and his massacre of southern Shiites in the early 90s.
There are a number of problems with this rationale. It certainly did not appear to be the real motive for intervention, or anything like it, at the time. It sits uneasily with the West’s blind-eyed acquiescence in Saddam’s genocidal behaviour at the time. It suggests that any regime guilty of extreme human rights violations in the past, however muted its behaviour since, can be militarily attacked by others at a time of their choosing. And it doesn’t acknowledge that even if a prima facie can be made for going to war on this ground, the case for actually doing so depends on multiple other criteria being satisfied, not least that the results of military action will not be worse than taking no action.
A Way Forward: ICISS and the Responsibility to Protect
So what are the principles that should govern our responses, as a regional community and a broader international community, if and when these kind of situations come along? The most substantial effort so far to identify them, and build an international consensus around them, has been the work of the Canadian government-sponsored International Commission on Intervention and State Sovereignty (ICISS), which I had the privilege of co-chairing, and which presented its report to the UN Secretary General at the end of 2001.
The Commission made, I think it is fair to say, four main contributions to the international policy debate.
The first, and perhaps ultimately the politically most useful, was to invent a new way of talking about the whole issue of humanitarian intervention. We sought to turn the whole weary debate about the ‘right to intervene’ on its head, and to recharacterise it not as an argument about any ‘right’ at all, but rather about a ‘responsibility’ – one to protect people at grave risk – with the relevant perspective being not that of the prospective interveners but, more appropriately, those needing support. This new language has been helpful already in taking some of the heat and emotion out of the policy debate, requiring the actors to change their lines, and think afresh about what are the real issues are. Our hope - and so far our experience - is that entrenched opponents will find new ground on which to more constructively engage, just as proved to be the case between developers and environmentalists after the Brundtland Commission introduced the concept of ‘sustainable development’.
The second contribution of the Commission, perhaps most conceptually significant, was to come up with a new way of talking about sovereignty: argued that its essence should now be seen not as control but as responsibility. The UN Charter’s explicit language emphasises the respect owed to state sovereignty in its traditional Westphalian sense, but actual state practice has evolved in the nearly 60 years since the Charter was signed: the new focus on human rights and, more recently, on human security, emphasises the limits of sovereignty.
We spelt out the implications of that change by arguing that sovereignty implies responsibilities as well as rights: to be sovereign means both to be responsible to one’s own citizens and to the wider international community through the UN. The starting point is that any state has the primary responsibility to protect the individuals within it. But that’s not the finishing point: where the state fails in that responsibility, a secondary responsibility falls on the international community acting through the U.N. As we put it, “Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.” So the responsibility to protect lies on both the state and on the international community as a whole.
The third contribution of the Commission was to make it clear that the ‘responsibility to protect’ was about much more than intervention, and in particular military intervention.
It extends to a whole continuum of obligations:
the responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk;
the responsibility to react: to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention; and
the responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.
Of these three dimensions to the responsibility to protect, the Commission made very clear its view that prevention was the single most important. But that said, the question of military action remains the central one in the debate. Whatever else it encompasses, the responsibility to protect implies above all else a responsibility to react - where necessary coercively, and in extreme cases with military coercion - to situations of compelling need for human protection. So the fourth contribution of the Commission was to come up with s guidelines – going both to legality and legitimacy - for when military action is appropriate.
Five Criteria of Legitimacy
The effectiveness of the global collective security system, as with any other legal order, depends ultimately not only on the legality of decisions, but the common perception of their legitimacy – their being made on solid evidentiary grounds, for the right reasons, morally as well as legally. The Commission identified five criteria of legitimacy which we argued should be applied by the Security Council - and be used by the world at large to test - the validity of any case made for a coercive humanitarian intervention.
Adopting and applying these five criteria of legitimacy may not guarantee that the objectively best outcome will always prevail, but it would maximise the possibility of achieving Security Council consensus around when it is appropriate or not to go to war; maximise international support for whatever the Security Council decides; and minimise the possibility of individual member states bypassing or ignoring the Security Council.
(1) Just Cause: is the harm threatened sufficiently clear and serious to justify going to war? We set the bar for military intervention deliberately high, and tight, excluding many kinds of unconscionable behaviour (eg imprisonment and torture of political opponents, overthrow of a democratically elected government) that would certainly other forms of coercive response, (eg targeted sanctions):
There must be serious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind:
A. large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or
B. large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.
As I have already suggested, in the context of the invasion of Iraq in 2003, this would certainly have been satisfied a decade or more ago (when the West was indifferent or worse to the plight of the Kurds and southern Shiites), but much less obviously so in recent years.
In the case of Darfur, there is not much doubt that this test is satisfied, on all available evidence, here and now.
(2) Right Intention: is the primary purpose of the proposed military action to halt or avert the threat in question, whatever other motives may be in play?
In the case of Iraq, it is probably fair to say that this test was satisfied in the case of the UK, where Tony Blair has long been passionate about the monstrous behaviour of Saddam towards Iraq’s own people. In the case of the US, the jury would I think have a harder time. In the case of the third Coalition member, Australia, perhaps there was some other motive than following the leader (and earning, as Phillip Adams unkindly said, some more ‘Frequent Fighter Points’) – but I’ve been out of the country nearly five years now and I’m afraid it has escaped me…
In the case of Darfur, if the international did decide to coercively intervene, through the African Union or anyone else, I don’t think there is much doubt this test would be satisfied.
(3) Last Resort: has every non-military option for the prevention or peaceful resolution of the crisis been explored, with reasonable grounds for believing lesser measures will not succeed?
For Iraq, the answer to this depends essentially on which rationale for intervention you regard as most important. If it was the issue of possession of weapons of mass destruction, manifestly this criterion was not satisfied. But if you accept Saddam’s tyranny over his own people as sufficient justification, then perhaps it was.
In Darfur, the jury is still out on this one. International pressure has been intensifying on Sudan, and it may be that it will as a result call a full halt to the killing, mount a massive relief effort to prevent any more dying, and allow in a big enough force to fully monitor the situation and act forcibly to protect civilians if the situation demands it. But it hasn’t done any of these things so far, and time to demonstrate its bona fides is fast running out.
(4) Proportional Means: is the scale, duration and intensity of the planned military action the minimum necessary to secure the defined human protection objective?
In the case of Iraq, a massive military operation was mounted, leading to some 3,500 civilian deaths and 10,000 military deaths at the time, quite apart from those who have died since; it is a matter for judgement whether one regards those casualties as, for the Iraqis supposedly being protected, an appropriate trade for the end of Saddam Hussein’s capacity to persecute.
In Darfur, nobody for the moment is suggesting a full-blown invasion, only an African Union force – with strong international support to make it viable – of some 3000 personnel, with a monitoring and civilian protection role, undertaken with the consent of the Sudan government. If that consent is not forthcoming, and an external force had to deal with a hostile national army as well as scattered militia, a much larger force would clearly be needed. Either way the response is not likely to be disproportionate to the need.
(5)Reasonable Prospects: is there a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction?
In the case of Iraq, this criterion is one of the hardest for defenders of the war to meet, even without the wisdom of hindsight which has made the war less defensible on this ground with every passing month. It should have been foreseen that the country was sadly divided, that the ‘liberators’ would not be universally welcomed, and that the overthrow of an Arab government was far more likely to generate terrorist recruits than to deter them.
The ‘balance of consequences’ test is, and should be, a very important constraint. Apart from anything else, it effectively rules out military action against any one of the five permanent members of the Security Council – e.g. against Russia over Chechnya, or against China over some imaginable course of events in Xinjiang - even if all other conditions for intervention were to be met.
The same is true for other major powers– which is why Indonesia’s permission was required for the East Timor intervention: that permission was reluctantly given, and under much international pressure, but it was given, and the case was, accordingly, not one of coercive ‘humanitarian intervention’ at all. This is why a military intervention to respond to the situations in Indonesia’s Aceh or Papua provinces, however much it deteriorated, can be effectively ruled out. Coercive external intervention would simply trigger a much larger conflict, multiplying the human catastrophe involved.
All this raises the familiar question of double standards, to which the only answer can be this: the reality that interventions may not be able to be mounted in every case where there is justification for doing so, is no reason for them not to be mounted in any case.
In the case of Darfur, the country’s population (some 40million) and armed forces size (over 100,000) would not in themselves be knockout reasons against coercive intervention, but the consequences of mounting a full scale invasion, not only for Sudan itself but for its surrounding not very stable region, would have to be very carefully evaluated. Obviously the East Timor option – getting Khartoum’s consent, however reluctant, to a large external civilian protection force, preferably from the African Union – is a far more attractive solution, and one that is being actively pursued in the UN at the moment.
The Legality Test
What if , taking into account all these five criteria of legitimacy, a very clear case can be made for coercive intervention, but the Security Council – under the UN Charter the only source of authority for the use of military force, except in cases of legitimate self-defence - simply won’t vote to authorise it? This was essentially the issue that had to be confronted with Kosovo in 1999, when all the elements of a horrific new ethnic cleansing operation were falling into place but Russia made clear it would veto any military intervention.
In these cases a very real dilemma arises as to which of two evils is the worse: the damage to international order if the Security Council is bypassed, or in the damage to that order if human beings are slaughtered while the Security Council stands by.
The ICISS Commission’s response to this dilemma was not to try and establish some alternative basis for the legality of interventions in these situations - we saw our role as not to find alternatives to the Security Council as a source of authority, but to make it work better. We opted instead for a clear political message: if an individual state or ad hoc coalition steps in, fully observes and respects all the necessary criteria of legitimacy, intervenes successfully, and is seen to have done so by world public opinion, then this is likely to have enduringly serious consequences for the stature and credibility of the UN itself. That is pretty much what happened with the U.S. and NATO intervention in Kosovo, and the UN cannot afford to drop the ball too many times on that scale.
There is another side to this credibility argument which arose in the context of the invasion of Iraq in 2003, where world opinion was manifestly not in favour of the intervention: here the French and others were - and still are - able to claim, with some effectiveness, that the credibility of the UN would have been put more at risk if the Security Council had gone along for the ride rather than resisting, as it did, the US pressure.
While the overall concept of the ‘responsibility to protect’ has gained considerable traction, and that’s more than be said for most Commission reports of this kind, it will be a long haul to gain general acceptance in principle of the relevance and utility of the criteria of legitimacy, and an even longer haul to have them systematically applied in practice in every case.
Efforts have already been made within the Security Council and the General Assembly, led by the Canadian government and supported by the Secretary-General, to win at least informal acceptance of the criteria and the whole ‘responsibility to protect’ approach, and these efforts will continue. And I am working hard for them to be endorsed in the High Level Panel report which will hopefully set much of the international agenda for next years UN 60th Anniversary summit meetings.
And if we can achieve acceptance of the kind of approach I have outlined we really will be well on the way to building an international legal order that, despite all the challenges which continue to buffet it, will give us some grounds for optimism that we are not forever condemned to repeat the mistakes of the past, not only going to war when we should not be, but not going to war – to protect our fellow human beings from catastrophe – when we should be.
The alternative to making a serious effort to enforce the international rules we have, and to supplement them with further principled guidelines, is to abandon the field to those who are more comfortable with the ad hoc exercise of power - who don’t really want to be limited by rules and principles, who feel constrained by international process, who see multilateral cooperation in very narrowly self-interested terms. But a world that appeals to people like this is not, I think, one in which most people in the world really want to live.