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The Responsibility to Protect in 2005

Address by Hon Gareth Evans* to Annual Society and Defence Conference, Salen, Sweden, 16 January 2005

May I begin by expressing my intense condolences for the terrible losses Sweden suffered in the Indian Ocean tsunami. No words of consolation can ever be enough for those who have personally suffered. All I can say is that in these days of trauma, you have not been alone in the world. This was the first truly global catastrophe, in the number affected and in the attention it commanded, and it has brought the family of man together. In a sense, in the last few days, we have all been Acehnese, we have all been Sri Lankans, we have all been Thais – and we have all been Swedes.

The concept of ‘Responsibility to Protect’ does have some potential application to natural disasters like the tsunami. The argument is that states, and the international community, have a responsibility to protect their peoples from all kinds of security risks, natural as well as man-made. That certainly involves a responsibility to prevent – in this context by reducing vulnerability. And it is possible to imagine situations where, in the face of a natural disaster, a state is unwilling, or so paralysed that it is unable, to seek external help, and the question arising whether there is a right or duty in others to intervene in these circumstances.

But let us for present purposes begin at the beginning, and explore the issue of so-called humanitarian intervention, which has been at the centre of so much policy debate over the last few years, and is by no means resolved: the core issue being when, if ever, it is right for states to take coercive action, in particular military action, against another state for the purpose of protecting people at risk within it - would long since have ceased to be as controversial as it remains today.

This issue was long hovering around the margins of international law and policy but suppressed, like so much else during the Cold War years. It burst into life in the 1990s, but not to be handled at all well by the international community. There was the debacle in Somalia in 1993, the pathetically inadequate response to genocide in Rwanda in 1994, the utter inability of the UN presence to prevent murderous ethnic cleansing in Srbrenica in 1995, and the Security Council’s inability to agree on the legitimacy of NATO’s intervention in Kosovo in 1999. Then there came the distraction of the invading coalition’s argument based on humanitarian intervention principles in Iraq in 2003, as other rationales for military force successively fell away. And now we are witnessing the international community’s lethargic and half-hearted response to the atrocities continuing to be being perpetrated against the people of Darfur.

If Dag Hammarskjold had been alive and in office it is easy to believe that the relevant principles of international law and decency would long since have been articulated and applied with a large measure of consensus. But in his absence it has remained for others to try to pick up the pieces, and forge a consensus where none existed. A big gulf prevailed right through the 1990s, and continues still, between those who are fervently committed to the notion that the UN Charter allows no-one the right, duty or capacity to intervene in the internal affairs of any sovereign state, however badly that state might seem to be behaving toward its own people, and those who argue that there is indeed a ‘right to intervene’ in these circumstances. To this day, 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.

There are several reasons why the necessary consensus has proved so hard to achieve. The first is simply that there are no clear pre-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). These principles have 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.

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. 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 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, and many post-colonial states, who have so recently acquired independent sovereign status, don’t much like the idea of yielding up any part of it – except in sub-Saharan Africa, where the despair in recent years has been as much about the lack of intervention as its happening.

A third reason for the difficulty of this issue 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, particularly by the UK, to justify the war in Iraq on the basis of Saddam’s gross mistreatment of his own people, which reached genocidal levels in his use of chemical weapons against Kurds in the late 1980s and his massacre of southern Shiites in the early 1990s. There are a number of problems with this rationale. 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 does not 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.

So how do we pick up the pieces? 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? How do we respond to the challenge so articulately expressed by Kofi Annan to the 2000 Millennium Summit: “If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that affect every precept of our common humanity?”

The most substantial effort so far to identify the relevant principles, 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 with my Algerian colleague Mohamed Sahnoun, and which presented its report, The Responsibility to Protect, to the UN Secretary General at the end of 2001. The Commission made four main contributions to the international policy debate – which I am pleased to say have all been picked up and given new momentum in the recent report of the High Level Panel, to which I will refer again below.

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 re-characterise 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.

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 respond - 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 some guidelines for when military action is appropriate. We identified five criteria going to legitimacy, and one going to legality, as follows.

(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), arguing that here must be serious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind: 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 large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.

How in practice would this apply? In the context of the invasion of Iraq in 2003, it 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; with the US, the jury would I think have a harder time. In the case of Darfur, if the international did decide to coercively intervene, through the African Union or anyone else, there is not 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 one regards as most important. If it was the issue of possession of weapons of mass destruction, manifestly this criterion was not satisfied. But if one accepts 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 on Khartoum has waxed and waned: it has had some impact in reducing the killing, allowing a massive relief effort to be mounted for those displaced, and winning agreement for an international monitoring force. But by early 2005 the situation had again deteriorated, creating at the very least an urgent need for more pressure to be applied by way of targeted sanctions and international criminal prosecution: whether this will be enough remains to be seen.

(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 the many more 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, there is no evident international support for a full-blown invasion: at best for 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, and why an Aceh intervention can be effectively ruled out. 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, Sudan’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, drawn primarily from the African Union, with a strong civil protection mandate – is a far more attractive solution, and one that continues to be actively pursued.

(6) Right Authority: is the military action lawful as a matter of international law?

Under the UN Charter the Security Council is the only source of authority for the use of military force, except in cases of legitimate self-defence. The Commission was very clear that the task was not to find alternatives to the Security Council as a source of authority, but to make it work better than it has.

But the Commission had to confront the reality that circumstances will arise when, however conscience shocking the threat may appear to be, and however compelling the need for military action, the Security Council simply won’t vote to authorise it. Many would argue that such a case was Kosovo in 1999, when all the elements of a horrific new ethnic cleansing operation seemed to be falling into place but Russia made clear it would veto any military intervention. In these kinds of 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 support any bypassing of the Security Council – that way lay anarchy - but to offer 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. The other side of this argument – in play with the 2003 Iraq invasion – is that the credibility of the Security Council may be equally at risk if, in cases where the argument for military action is not strong, it nonetheless succumbs to pressure to support such action rather than resisting it.

While the overall concept of the ‘responsibility to protect’ has gained considerable traction, more than can 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.

But a very important step forward has recently been made with the endorsement of the ‘responsibility to protect’ concept in all its dimensions, together with the accompanying notion of multiple criteria of legitimacy for any military action, in the December 2004 report of the Secretary-General’s High Level Panel on Threats, Challenges and Change. Tasked to help the international community find a new consensus on how to deal with the security threats of the 21st century, in the context of the summit meetings to be held in the UN’s 2005 sixtieth anniversary year, the Panel concluded, after a full discussion of the issues:

We endorse the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide or other large-scale killing, ethnic cleansing or serious violations of international humanitarian law, which sovereign governments have proved powerless or unwilling to prevent.

Dag Hammarskjold would have wondered why on earth it took us so long to get to such an obvious conclusion. But I think he would be pleased.

2005 will be a big year for the Responsibility to Protect concept, and reform of the multilateral security system generally. At least most of the elements necessary for any major reform exercise are on the table:

an objective need for change: hardly in issue here as we look at the state of our world from Darfur to Israel/Palestine and Iraq to North Korea;

an occasion for change: amply provided this year by the UN’s 60th anniversary and all its associated summitry; and

an agenda for change: here now provided by the High Level Panel report.

Maybe now we have the last necessary element, a spark or catalyst to actually trigger committed action. To conclude where I began, it may just be that, for all the horror and pain it has caused, not least here in Sweden, the tsunami disaster will prove to be that catalyst, demonstrating as it did that we are indeed one human family, ever more susceptible to common risks - and with a shared responsibility to tackle them.

Gareth Evans has been since 2000 President and CEO of the International Crisis Group. He was Australian Foreign Minister (1988-6), co-chair of the International Commission on Intervention and State Sovereignty (2001) and a member of the High Level Panel on Threats, Challenges and Change (2004).