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The Responsibility to Protect and The Use of Military Force

Presentation by Gareth Evans, President, International Crisis Group, to Seminar on International Use of Force, World Legal Forum, The Hague, 11 December 2007

The Responsibility to Protect

The concept of the responsibility to protect (R2P) is a very recent arrival on the international scene, for international lawyers and policymakers alike. It emerged against the background of the failure of the international community to deal effectively – any more than it had before with the Holocaust or the tragedy of Cambodia – with the series of human rights catastrophes, involving genocide and other atrocity crimes, which arose repeatedly through the 1990s, especially in Somalia, Rwanda, Bosnia and Kosovo, and the fierce political debate which continued through that whole decade, between those who argued that state sovereignty was inviolable, and those who argued equally forcefully that there was a ‘right of humanitarian intervention’ which not only allowed but encouraged military intervention in response to such situations.

The R2P idea is very straightforward. The sovereign state itself has the primary responsibility to protect its people from genocide and other mass atrocities – ethnic cleansing, crimes against humanity and war crimes – occurring within the boundaries of that state. But if the state in question is unable or unwilling to take the necessary action that responsibility shifts to the wider international community.

The responsibility to protect in both cases is multidimensional. Initially and most importantly, it involves the responsibility to prevent such horrors occurring in the first place, by states – with international support as appropriate –addressing both the root causes and more direct causes of internal conflict and other man-made crises putting populations at risk. Then, if prevention fails and atrocities are occurring or imminently about to occur, the responsibility to protect means the responsibility of the state itself, or others if it doesn’t act, to react appropriately. This may involve diplomacy and persuasion, but also as necessary more coercive measures like economic sanctions and criminal prosecution, and ultimately – but only in extreme cases, and as a last resort – military intervention. And, particularly after a military or other coercive intervention, R2P involves the responsibility to rebuild - to provide full assistance with recovery, reconstruction and reconciliation, to address again the causes of the harm that intervention was designed to halt or avert.

The concept was first articulated in these terms by the Canadian-government sponsored International Commission on Intervention and State Sovereignty of 2001, which I co-chaired with my Algerian colleague Mohamed Sahnoun, then picked up by the UN Secretary-General’s High-Level Panel on Threats, Challenges and Change in 2004 and by the Secretary-General’s own further report to the World Summit in 2005. And then, crucially, it was unanimously endorsed by 150 heads of state and government, meeting as the General Assembly in the UN’s 60th Anniversary year, in terms which may have been wordier than they needed to be, but nonetheless could hardly be clearer on the key issues and commitments:

Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity… We accept that responsibility and will act in accordance with it…

The international community, through the United Nations, also has the responsibility to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII…, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

There has since 2005 been some backsliding from this highpoint. One doesn’t have to spend too much time in the UN corridors, or in some Asian capitals in particular, before hearing expressions of regret, or even denial, that so far-reaching a doctrine could possibly have been agreed by national leaders. Part of the problem here is that insufficient attention has been devoted until now by proponents of R2P in explaining clearly the scope and limits of the concept – what are and are not ‘R2P situations; why, for example, Rwanda and Srebrenica and Kosovo in the 1990s certainly justified that description; why Iraq was an R2P case that may well have justified military intervention in the late 1980s and early 1990s but not in 2003, and why it is still properly regarded as an R2P situation now; why Burundi and Macedonia are excellent examples of the preventive dimension of R2P at work, but many other cases of human rights or conflict concern are better not so characterised.

This isn’t the occasion to argue out further these definitional issues, as I have done elsewhere, and no doubt will be doing for a long time yet. It is just to make the point that the application and implementation of R2P is still work in progress. There is unquestionably a long way to go before the essence of the concept is universally understood, internalised, and properly and effectively applied. And, as much as I would, as a lawyer, like to be able to claim otherwise, there is a long way to go before any of us will be able to be credibly argue that the responsibility to protect has assumed the status of customary international law.

But all that said, the language of the debate has been changed, and I believe irreversibly. The cumulative weight of the post-World War II human rights instruments, the Genocide Convention, the Rome Statute establishing the International Criminal Court, and now the unanimous endorsement of the concept of the responsibility to protect by the General Assembly at the highest level, has made it simply no longer possible to argue – as it was possible to argue for centuries before – that sovereignty is a license to kill.

Although that won’t stop some people trying, for example the Shanghai professor who was quoted in USA Today a few weeks ago as saying ‘China has used tanks to kill people on Tiananmen Square. It is Myanmar’s sovereign right to kill their own people too.’ There are some parts of the world in which we have a lot of education still to do.

R2P and Military Force

My immediate topic today is one that has been at the heart of the debate about the responsibility to protect since the outset: when is it legal, and legitimate, to use military force in R2P situations. The issue here is about coercive such force, applied without the consent of the state in question, not about peace operations for civilian protection purposes mounted consensually. Consensual operations can involve all sorts of political and operational problems, but not legal and conceptual ones of the kind with which we are concerned here.

From one point of view it is very unfortunate that so much of the R2P debate has been about military force: it has led many, particularly in the global South, to see R2P as being only about the use of force, and just another way of talking about ‘humanitarian intervention’, which throughout the 1990s debate was indeed a concept synonymous with military coercion. This has happened notwithstanding the pains that have been taken by the ICISS Commissioners, and just about every advocate of R2P since, to emphasise that R2P is about prevention as much as, if not more than reaction, that coercive military force is only one among many possible means of reaction, and that it is only defensible in the most extreme and exceptional circumstances, when multiple criteria have been satisfied quite apart from the crucial threshold one of the seriousness of the threat to human security.

From another point of view, it is inevitable that use of force issues have dominated the R2P debate. There is an emotional context here: the conscience-shocking atrocity-crime situations that resonate most in our memory, certainly in this country, are the ones where we know that the timely use of military force would have saved thousands, or hundreds of thousands, of innocent lives – the cases like Rwanda in 1994 and Srebrenica in 1995 when force should unquestionably have been used but wasn’t. These are the cases that make us ask ourselves each time, with a mixture of incomprehension, rage and shame, how we can possibly find ourselves saying ‘never again’ when we have said it so many times before. It is very hard emotionally for many, particularly in the NGO community, to come to terms with this, but if there is one thing worse than using military force when we shouldn’t, it’s not using military force when we should.

The other reason why use of force issues have so dominated the debate about R2P is just that they are so hard to resolve. They are the hardest cases practically, because they are the ones where people are most immediately at grave risk and where speedy action is most obviously required; and they are the hardest cases intellectually, because there are always multiple criteria, some of them in direct competition with each other, that have to be weighed and balanced before any kind of judgement can be made that it is indeed right to fight.

No case of this kind has caused more agonised, and continuing, debate than that of Kosovo in 1999. There non-consensual force was used, and ultimately very effectively, and the clear majority view internationally (albeit not without some dissidents) has remained that in all the circumstances it was justified, on moral and practical grounds, by the scale of the ethnic cleansing and other crimes against humanity that were already occurring and would have become much worse had NATO not forcibly intervened. But the intervention was not authorised by the Security Council, because of the threatened veto by Russia, and as a result it raised anxious questions, which resonate to this day, about the integrity of the whole international security system. Those concerns have of course been multiplied by the decision of the US-led coalition to again bypass the Security Council in invading Iraq in 2003, with at least part of the argument in support of the intervention being that extreme human rights violations were occurring and the use of force had a human protection – or R2P – justification.

So how do we keep our intellectual balance here? What determines whether a coercive military intervention is legal, what determines when it is legitimate, and how do we resolve situations when there is a prima facie clash between these two requirements?

The Question of Legality

As we all know, the UN Charter makes absolutely clear in Article 2(4) that all UN member states “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state”, allowing only two explicit exceptions to that general prohibition: self-defence under Article 51, which has no credible application in the present context, and military measures authorised by the Security Council under Chapter VII in response to “any threat to the peace, breach of the peace or act of aggression”.

Within Chapter VII, Article 42 authorises the Security Council to decide upon military measures ‘as may be necessary’ to ‘maintain or restore international peace and security’, a power which explicitly overrides the prohibition which otherwise exists, under Article 2(7), on the UN intervening in ‘matters which are essentially within the domestic jurisdiction of any state’. As the ICISS Commission pointed out (#6.16-18), although the Article 42 power was interpreted narrowly during the Cold War, since then the Security Council has taken a quite expansive view of what constitutes ‘international peace and security’ for this purpose and, in the absence of any provision for judicial review of its decisions, will continue to have considerable latitude to define an ‘international’ threat any way it likes, however limited the actual cross-border impact of a particular situation may be. The High Level Panel put the point similarly robustly (#202):

…step by step the Council and the wider international community have come to accept that, under Chapter VII and in pursuit of the emerging norm of an international responsibility to protect, it can always authorise military action to redress catastrophic internal wrongs if it is prepared to declare that the situation is a ‘threat to international peace and security’, not especially difficult when breaches of international law are involved.

Sources of legal authority beyond the Security Council are not easy to find. Chapter VIII of the Charter acknowledges the security role of regional and sub-regional organisations, but expressly states that ‘no enforcement action shall be taken under regional arrangements or by regional agencies without the authorisation of the Security Council’. That said, there is a general willingness to allow regional organisations a fairly free hand in dealing with human catastrophes at least within their own defined region, and the required authorisation has on occasion been given after the event, as with ECOWAS’s Monitoring Group (ECOMOG) in Liberia in 1992 and Sierra Leone in 1997, suggesting scope for further such action in the future. It is rather more difficult to contemplate such tolerance being extended to a regional organisation taking action out-of-area against a non-member, as with NATO in Kosovo in 1999.

It has regularly been suggested that the General Assembly may have a role in authorising military action in the exercise of its ‘Uniting for Peace’ procedures, developed in 1950 specifically to address the situation where the Security Council, because of lack of unanimity among its permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security. Certainly, if a decision was supported by an overwhelming majority of member states, it would provide a high degree of legitimacy for a military intervention (and had the procedure been tested in the cases of Rwanda and Kosovo it is conceivable that there would have been such support) – but, given that the General Assembly has no power to direct such action, or to override the Security Council, it would not ensure formal legality.

A good deal of intellectual energy has been expended in recent years in exploring whether, at least for the R2P kinds of situations we are discussing here, alternative sources of legal authority to the Security Council are available or can be devised. But any talk of creating brand new institutions for the purpose is frankly Quixotic. And approaches which focus, for example, on suggesting that customary international law now has advanced to the point of authorising unilateral interventions for human protection purposes, irrespective of Security Council approval, founder at the threshold that clear treaty provisions, including those of the UN Charter, prevail over customary rules. Some attempts have been made to meet this objection by suggesting that the basic meta-rules of international law – including as to what are customary rules, and what are rules of treaty interpretation, and how they inter-relate – are themselves changing as a result of state practice: but this approach founders on a lack of credible evidence that there is any widespread international movement of practice or opinion of this kind.

As the ICISS Commission put it(#6.14):

…there is no better or more appropriate body than the Security Council to deal with military intervention issues for human protection purposes…That was the overwhelming consensus we found in all our deliberations around the world. If international consensus is ever to be reached about when, where, how and by whom military intervention should happen, it is very clear that the central role of the Security Council will have to be at the heart of that consensus.

The bottom line on the question of right authority was stated in identical terms by the ICISS commission and the High Level Panel (#198), in language with which I wholeheartedly agree – perhaps not surprisingly since I was a member of both:

'The task is not to find alternatives to the Security Council as a source of legal authority, but to make the Council work better than it has'.

The Question of Legitimacy

The fact that the Security Council is the right body to confer legal authority on a coercive military intervention does not mean that it will, or that it should, make that decision. Making the Security Council work better means devoting a lot more attention to its decision making processes, and in particular to ensuring that decisions about authorising or supporting military intervention are made on solid evidentiary grounds, and for the right reasons of morality or principle.

It is with this objective in mind that the ICISS commission advocated – in terms that have been picked up subsequently by the High Level Panel and by the Secretary General in his own 2005 In Larger Freedom report, but not, unhappily, by the World Summit or, so far, by the Security Council itself – that for any decision about the coercive use of military force, against the will of the state in question, the Security Council adopt as guidelines five criteria of legitimacy. All of them have an explicit pedigree in Christian ‘just war’ theory, but their themes do resonate equally, and are not inconsistent, with the other major world religious and intellectual traditions. They are as follows:

(1) Just Cause: Is there 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. The bar for military intervention here has been set deliberately high and tight, excluding many kinds of unconscionable behaviour (e.g., imprisonment and torture of political opponents, or overthrow of a democratically elected government) that would certainly justify other forms of coercive response (e.g., targeted sanctions):

(2) Right Intention: is the primary purpose of the proposed military action to halt or avert human suffering, whatever other motives may be in play?

(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? This guideline was not intended to mean that every non-military option must literally have been tried and failed. Given that there will often be simply no time for that process to work itself out, what is necessary is that there be reasonable grounds for believing, in all the circumstances, that these other measures would not have worked.

(4) Proportional Means: is the scale, duration and intensity of the planned military action the minimum necessary to secure the defined human protection objective?

(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? This last ‘balance of consequences’ test is, and should be, a very important constraint. In Darfur, for example, it has been obvious almost from the outset of the crisis to most policymakers, if not always to activist campaigners, that a non-consensual deployment would be hair-raisingly difficult for a number or reasons: logistical, given the huge size of the contested territory and limited supply points; the risk to civilians ahead of the arrival of protective international force, with basically a hostage population of 2 million or more sitting defenceless in large concentrations; the risk to civilians from the inevitable collapse of humanitarian relief operations if a non-consensual intervention occurred; the implications for North-South peace, remembering that the killings and displacement associated with this decades-long battle were many times even that of the present Darfur tragedy, and that North-South peace agreement implementation is extremely weak and fragile at best; and the wider implications of a UN mission taking place as a primarily Western-backed enterprise, probably having to have a significant number of white, non-Muslim personnel. None of this means that the ‘responsibility to protect’ concept is irrelevant: just that it has to be implemented here by means falling short of full-scale coercive military intervention.

No-one who supports these criteria of legitimacy is naïve about their utility. There is no push-button inevitability about their application, and for the Security Council to adopt them is no guarantee that the objectively best outcome will always prevail. But the existence of agreed criteria surely would change the nature of Security Council debate; maximise the possibility of achieving Council consensus around when it is appropriate or not to go to war; maximise international support for whatever it decides; and minimise the possibility of individual member states bypassing or ignoring it.

Legality v. Legitimacy

There remains to address, and I will do so briefly because there is only so much that can be usefully said on the subject, the problem of what exactly is to be done in a situation in which the criteria of legitimacy seem manifestly to be satisfied, yet the cloak of formal legality is not available because, for whatever reason, the Security Council, fails or refuses to authorize the relevant military action: in other words, what most people would now accept was the situation with Kosovo in 1999.

As the ICISS commission expressed it (#6.36-40), 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. Its own response to this dilemma was not to try and establish some alternative basis for the legality of interventions, but to opt instead for a very 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 essentially 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.

I agree with this approach, and add only that my own strong view is that if we are to maintain a rules-based international order we simply cannot fudge the issue of legality. In the absence of a credible self-defence argument, the only source of legal authority is the Security Council, without whose support non-consensual military interventions are illegal under international law. Period.

The most that can really be argued in these situations, as Thomas Franck among others have suggested, is a ‘plea in mitigation’, an acknowledgment of the illegality combined with a claim that it took place in exceptional and defensible circumstances. Michael Byers and Simon Chesterman have made the case for this approach about as strongly as it can be made:

… if the intervening state admits that it is violating international law, the intervention itself will not undermine the existing rules, while the admission of illegality may in fact serve to strengthen them…Indeed the greatest threat to an international rule of law lies not in the occasional breach of that law – laws are frequently broken in all legal systems, sometimes for the best of reasons – but in attempts to mould that law to the shifting practices of the powerful.[1]

We must simply hope that, over time there emergences some greater convergence between the legal and political order, that the Security Council will work better than it has done, and that fewer cases will arise of manifest tension between legality and legitimacy.

My larger hope is that, through a concerted and continued effort by like-minded governments and NGOs, and men and women of good will in positions of authority and influence throughout the world, we will get past the current period of doubt and backsliding about the nature, stature and applicability of the responsibility to protect principle, and recapture the momentum that culminated – within an extraordinarily short time in the history of ideas – in its unanimous embrace by the 2005 World Summit.

The object must be to create a worldwide intellectual and political environment in which, when the next Rwanda or other conscience-shocking man-made human rights catastrophe comes along, as unhappily it surely will, there is a reflexive protective response – and the only question is not whether to act, but when, where and how. I hope that this World Legal Summit can play its part in creating that environment. None of us want to have to say ‘never again’ ever again.

[1] ‘Changing the Rules about Rules: Unilateral Humanitarian Intervention and the Future of International Law’ in Holzgrefe & Keohane (eds), Humanitarian Intervention: Ethical Legal and Political Dilemmas, Cambridge University Press, 2003. See also, in the same volume, Thomas Franck, ‘Interpretation and Change in the Law of Humanitarian Intervention’.