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Genocide and Other Mass Atrocity Crimes: Asian Experience and Visions for the Future

Panel Presentation by Professor the Hon Gareth Evans to the 4th Regional Forum on the Prevention of Genocide, Phnom Penh, 28 February 2013

The Asian Experience. Genocide and other conscience-shocking mass atrocity crimes did not begin with Hitler’s Holocaust, nor have they been confined to Europe and Africa, or to war or civil war situations. The Asian story over the last century has been at least as distressing as anywhere else, and this regional Forum is a good opportunity to both remind ourselves of that – and to renew our commitment at a regional level to ensuring that we never again have to say “never again”.

As our presence here starkly reminds us, Cambodia in the mid-1970s, when up to two million died under the Khmer Rouge, remains – along with Rwanda and Bosnia in the 1990s – the talismanic case globally of conscience-shocking group violence, be it driven by race, ethnicity, nationality, religion, politics or ideology, and be it strictly legally definable as “genocide” or not.  But Cambodia has not been the only man-made catastrophe of its kind in Asia. Without trying to be in any exhaustive, think about these cases:

In North East Asia, we have had in China the horrible record of group–targeted violence by the nationalists under Chiang Kai-shek (killing some 10 million from 1927 to1949), then the communists under Mao Zedong (with some 7 million dying from 1934 in purges, and tens of millions more perishing in the famine of the insanely conceived Great Leap Forward of 1958-61 and the only marginally less pathological Cultural Revolution of 1966-76), and the recurring suppression of dissent in Tibet and Xinjiang, and in the Tiananmen massacre of 1989. And there was the Japanese army’s rape of Nanking in 1937, where some 300,000 Chinese were slaughtered and which anticipated many more atrocities against civilians throughout Asia in the world war that followed.

In South East Asia, there were the atrocities accompanying the war in Vietnam – not least the My Lai massacre by US forces in 1968 in which over 500 men women and children were murdered in three Vietnamese villages.  In Indonesia, there was the massacre in 1965-66 of 500,000 or more Communist Party members, suspected sympathisers and others caught up in the mayhem; the Dili massacre in Timor-Leste in 1991, and the terrible Indonesian-supported violence that erupted there in 1999 following the successful independence referendum; and, more recently, recurring cases elsewhere in the country of religiously-inspired communal violence.

In Burma, now Myanmar, there was the appallingly bloody crackdown on domestic political dissent in 1988, and currently – notwithstanding all the dramatic political progress that has been made – acute concern about recurring ethnically-driven violence against Rohingya Muslims in Arakhan/Rakhine state, and the possibility of new conflict with a number of the country’s other ethnic minorities.  There have been similarly ugly instances of group violence in the Southern Philippines and Southern Thailand.

In South Asia, there was the brutal Pakistani response in 1971 to the self-determination struggle in what is now independent Bangladesh; recurring outbreaks of religiously-motivated communal violence in India; and most recently, the horrifying violence in Sri Lanka in 2009 when, in the bloody endgame of the government’s war against the separatist Tamil Tigers, some 300,000 civilians became trapped between the advancing army and the last LTTE fighters in a tiny strip of land in the northeast of the country. With neither side showing either restraint or compassion, at least 10,000 civilians – possibly as many as 40,000 – died in the carnage that followed, as a result of indiscriminate army shelling, rebel gunfire, and denial of food and medical supplies.

The Normative Vision. There is no simple solution to the problem of ending mass atrocity crimes once and for all, in Asia or anywhere else.  It requires not only many legal and practical instrumental mechanisms aimed at effective prevention and reaction, but a fundamental change of mindset among policymakers and those who influence them, that genocide and major crimes against humanity – whether occurring behind sovereign state walls or not, or in the context of full-scale war or not –  are simply intolerable: totally incompatible with our common humanity, and demanding cooperative international action.

Achieving that normative shift – that universal reflex recognition that mass atrocity crimes are not nobody’s business but everybody’s – is of course what the whole “responsibility to protect” (R2P) project, which began with the Commission I co-chaired in 2001, is all about.  We have come a long way in this respect over the last decade, but not far enough yet overall, and not far enough in Asia in particular.

The good news about R2P globally is that we can now say with confidence, on the evidence of the major debates on the subject in the UN General Assembly every year since 2009, that there is now (even after the controversy over its application in Libya, which I’ll return to) a remarkable degree of acceptance in principle evident for all three of its pillars: the primary responsibility of sovereign states not to perpetrate or allow mass atrocity crimes on their own territory; the responsibility of other states to assist them to do so; and then – if prevention fails, and a state is manifestly failing to protect its own people –  the responsibility of  the wider international community to provide that protection by every means prescribed, and circumscribed, by the UN Charter.  The efforts made to turn back the clock on the 2005 consensus by a number of spoiler countries – notably Nicaragua, Venezuela, Cuba and Sudan – have been comprehensively rebuffed.

The not so good news globally is that the consensus that emerged in the UN Security Council in early 2011, in the context of Cote d’Ivoire and Libya, about how to apply R2P in the hardest of cases – when coercive military intervention seems the only way to stop massacres happening or continuing  – has evaporated in a welter of recriminations about how the mandate the Council gave to use force in Libya was implemented, with the BRICS countries arguing  that the P3-led interveners exceeded their civilian protection authority in their obsessive pursuit of regime change. This in turn has contributed to the paralysis over Syria, where – despite a continuing series of terrible atrocities – the Council has been unable to agree not only on the extreme step of military force, but on lesser coercive measures like targeted sanctions or referral to the International Criminal Court.

The slightly better news is that a way through the impasse has been credibly mapped by the Brazilian proposal to supplement R2P with a parallel principle of “RWP” (Responsibility While Protecting). This has two key elements: a set of agreed criteria to be taken into account before the UNSC mandates any use of force (including last resort, proportionality, and balance of consequences); and a monitoring-and-review mechanism to ensure that the scope and limits of such mandates continue to be debated by the Council during the implementation phase.  One of my hopes is that Australia might be able to use its current membership of the Council to take forward this idea, and help rebuild the broad consensus on principles that is so necessary if R2P is to be effective in dealing with the hardest cases. But even on the most optimistic assessment, rebuilding this high-level global consensus is going to take some time: the bruises are deep.

At the regional level there is still some work to be done in consolidating the basic normative vision of R2P.  In 2005 Asian countries, with only a few notable exceptions like ROK, Japan and Timor Leste, were the most conspicuous feet-draggers on this issue at the World Summit, deeply reluctant to yield any ground on the principle – deeply embedded in the psyche of many policymakers – of non-intervention in the internal affairs of other sovereign countries.  The strong Western support for the new concept served only to reinforce the hesitation, and had it not been for the equally strong support for R2P by sub-Saharan Africans (who ranked the sin of indifference to atrocity crimes higher than that of intervention to stop them) and – importantly – a strong group of Latin Americans (notwithstanding their own traditional aversion to imperial overreach), it would not have been adopted.

By the time the issue was debated again in the General Assembly in 2009, there was much more overt support for R2P principles from around the region, especially from India – one of the very last to come aboard in 2005 – Indonesia, Vietnam and the Philippines.  But significant caution continued to be expressed by countries like China, the DPRK, Sri Lanka, Malaysia and especially Pakistan. And with the subsequent controversy over Libya hardening developing-world positions generally – though still not to the extent of a full-on assault being mounted even against R2P’s third pillar – any complacency about the longevity of the new norm in this region would be misplaced.

It is very important in this context for R2P advocates and supporters to continue to work hard to embed its basic principles in the collective regional psyche.  The work of the Asia-Pacific Centre for the Responsibility to Protect, based at the University of Queensland, continues to be important in this respect, in particular its programs to design and deliver training and high-level seminars around the region; to conduct research and facilitate national and regional dialogues on implementation issues; and to identify and foster opportunities to mainstream R2P in regional institutions, e.g. the ASEAN Intergovernmental Commission on Human Rights (AICHR).

The Practical Vision.  Consolidating the norm at the level of high principle is, of course, only part of the story. If principle is not translated into effective practice it remains empty rhetoric.  A fairly clear to-do list has emerged from the many consultations and discussions that have taken place on this subject, and what is clear here – and very relevant for our discussions at this forum –  is that it makes sense to concentrate advocacy for action here at least as much at the regional as at the global level.  Important contributions to the debate on priorities in the Asia Pacific region have been made both by the A-P Centre for R2P, and by CSCAP (Council for Security Cooperation in the Asia Pacific) in its September 2011 Memorandum, Implementing the Responsibility to Protect.  There are three broad areas that need attention.

The first category of need is to develop effective capability to initiate action and mobilize political will: to have sufficient early warning, authoritative fact-finding and decision-making capability within the international system at all relevant levels – global, regional, and the key national players – to ensure that R2P situations which deserve international attention get it.

The immediate priority here is to develop “focal points” within key governments and relevant intergovernmental organizations: professional individuals or units whose day-job is to collect, analyse and disseminate relevant information; prepare response options; focus and energise decision-making when this becomes necessary; and oversee implementation.  A critical need is for the focal point to not be buried away in the bureaucracy, but to have direct access to high-level decision makers, and to be thoroughly integrated into any relevant inter-agency mechanisms.  The office of the Special Adviser for the Prevention of Genocide plays that role within the UN system, and the need for such positions at the regional and national level is now widely recognized.

 The Global Centre for the Responsibility to Protect in New York, and the governments of Denmark, Ghana, Costa Rica and Australia are playing an active organizational role in this respect, encouraging the creation of new focal points and building a network of those so appointed. At last count 23 countries have such focal points (including our conference host, Switzerland). But, unhappily, within the broader Asian region, only my own country, Australia, has made any move in this direction. We have a long way to go here.

The second need is to develop broad-based civilian response capabilities: to have available for rapid deployment, as prevention or reaction circumstances require, effective civilian capability in the areas of diplomatic mediation, policing, other civilian support and fact-finding and monitoring missions.

A particularly important civilian function to which Asian states might be able to make a contribution is policing, which in some difficult cases may be a less sensitive but just as effective a form of engagement as sending in military personnel. The deployment (preferably, as always, with the consent of the government in question) of police forces trained in riot control, may well avoid the catastrophic deterioration of a volatile situation. There is also a manifest need to build capacity in less sensitive areas like emergency needs assessment, rule of law support, and civil administration generally. Experience has demonstrated the particularly crucial relevance of human rights monitors and fact-finding missions in situations where R2P crimes might be involved.

In an Asian context, in Nepal, the UN established a human rights field operation in May 2005 that monitored violations of human rights and humanitarian law, investigated emblematic cases and duly reported its findings. That field operation in Nepal contributed to a dramatic reduction in violations, with summary executions and disappearances nearly eliminated and the release of most political and civil society activists from detention. The identification of appropriately qualified personnel for these missions, able to be mobilized at very short notice, would be a very helpful preparedness step that ASEAN, among others, could take.

The third institutional need is to ensure that effective military capability is available to meet needs as they arise, either by way of Pillar 2 assistance on request (through preventive deployment, or to suppress occurring violence), or Pillar 3 intervention in conformity with the UN Charter. This may be thought to be a bridge too far in the present Asian environment, but what is likely to be most often required in this context is just an extension of the increasingly robust role that peacekeeping  missions have in recent years been playing, with a number of Asian countries already fully engaged. The most obvious need is for a capacity to mount at very short notice ‘fire brigade’ response operations, which involve rather more than peacekeeping, but still something short of a full-scale peace enforcement/war-fighting operation.

In Asia, and especially South East Asia, habits of military cooperation are slowly developing, particularly in the context of coordinated responses to natural disaster situations, but also within the framework of contributions to peacekeeping operations like that in Timor Leste, and there is a need to maintain that momentum, even if it involves over time giving organizations like ASEAN much more of a security-focused role.

Making the responsibility to protect work in Asia, as everywhere else, means above all mobilizing the political will to make something actually happen when it must. There are many ingredients that go into any such enterprise, and many arguments that need to be effectively made to many different constituencies. But the most compelling argument – the one that spurred world leaders to accept the R2P norm in principle in 2005, and which will continue to be crucial in ensuring its practical implementation, in this region as elsewhere – remains the moral one based simply on our common humanity: our duty to rise above the legacy of all those terrible failures in the past, and ensure that never again do any of us stand by, or pass by, in the face of mass atrocity crimes.