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The Responsibility to Protect: Re-Establishing Consensus on the Hardest Cases

Presentation by Professor the Hon Gareth Evans AC QC FASSA to UNA-UK/ All-Party Parliamentary Group Meeting The Responsibility to Protect: Living and Dying, London, 15 May 2013

Alex Bellamy’s just published report for the United Nations Association-UK, The Responsibility to Protect: Towards a “Living Reality”, is an admirable account of the evolution of R2P to date, and a compelling demonstration that the new norm is very much alive and well, despite the doubts and scepticism that continue to be expressed in various quarters.
But he is quick to acknowledge, as I do, that – for all the extraordinary amount that has been achieved over the last decade in fundamentally changing the way in which the international community thinks and acts about genocide and other mass atrocity crimes – R2P still faces a number of challenges in its complete and effective implementation.

The one on which I want to focus in this contribution goes to the heart of the whole debate which kick-started the emergence of R2P: how do we react in the hardest of all cases, where prevention, both long and short-term, has manifestly failed; large-scale atrocity crimes are either imminently feared likely or are actually occurring; and it seems unlikely that anything less than coercive military force will halt or avert catastrophe.

In this context we have to confront the reality that the coming of age of R2P that we celebrated in early 2011 with the UN Security Councils endorsement of such action in Cote d’Ivoire and Libya, has turned into something of a mid-life crisis with the Council’s paralysis over Syria – not just now, with a full scale civil war  being waged and  acute policy dilemmas facing everyone, but back in mid-2011, when the violence was largely one-sided, being perpetrated overwhelmingly by the governing regime against essentially defenceless citizens in a way at least as bad as anything done by Gaddafi in Libya: when the issues seemed  crystal clear but the UNSC found itself utterly unable to act.

In focusing as I want to on the sharpest end of the R2P response spectrum, I don't for a moment want to suggest that this is all that R2P is about, or that we should be consumed by the issue of military force at the expense of all the measures in the R2P toolbox.  Alex Bellamy is absolutely right to emphasize that prevention has been from the beginning the most important element in the R2P concept, and to primarily focus his own report’s recommendations on how best to make that meaningful.

He is also absolutely right to emphasize that when it comes to Pillar 3, the ‘timely and decisive’ collective action there called for is not at all just about coercive military force,  but specifically included ‘diplomatic, humanitarian and other peaceful means’ under Chapters VI and VIII, as well as non-military forms of coercion.

But all that said, we have to acknowledge that the hardest cases, the sharp-end cases, when the situation  in question is so bad that the issue of military force has to be given at least some prima facie consideration, are the talismanic cases, and if consensus has broken down, or seems to have broken down, at the highest political level on how they should be handled, there is a danger of flow-on risk to the credibility of the whole R2P enterprise, in all its multiple and nuanced dimensions.

So what went wrong in 2011, and how can we fix it?

At first it seemed like everything was going right. Cote d’Ivoire, and especially Libya, in February and March of that year, were textbook examples of how R2P is supposed to work in the face of a rapidly unfolding mass atrocity situation during which early-stage prevention measures no longer have any relevance. The situation in Cote d’Ivoire was quickly resolved with the French-led international intervention that occurred, and has remained subsequently largely uncontroversial, but Libya has been anything but, and we need to tease out the story.

In February 2011, Gaddafi’s forces responded to the initial peaceful protests against the excesses of his regime, inspired by the Arab Spring revolutions in Tunisia and Egypt, by massacring at least several hundred of his own people. That led to the unanimous UN Security Council Resolution 1970, which specifically invoked “the Libyan authorities’ responsibility to protect its population”, condemned its violence against civilians, demanded that this stop and sought to concentrate Gaddafi’s mind by applying targeted sanctions, an arms embargo and the threat of ICC prosecution for crimes against humanity.

Then, as it became apparent that Gaddafi was not only ignoring that resolution but planning a major assault on Benghazi in which “no mercy or pity” would be shown to perceived opponents, armed or otherwise—his reference to “cockroaches” having a special resonance for those who remembered how Tutsis were being described before the 1994 genocide in Rwanda—the Security Council followed up with Resolution 1973 three weeks later, also invoking R2P, which, by majority vote with no Russian or Chinese veto or other dissenting voices (although a number of abstentions) explicitly authorized “all necessary measures” by member states, i.e. military intervention, “to protect civilians and civilian populated areas under threat of attack”.  Acting under this authorization, NATO-led forces took immediate action, and the feared massacres did not eventuate. If the Security Council had acted equally decisively and robustly in the 1990s, the 8,000 murdered in Srebrenica and 800,000 in Rwanda might still be alive today.

But with the apparent maturity of R2P also came what I’ve described as a mid-life crisis. As the weeks and months wore on, the Western-led intervention came under fierce attack by the BRICS countries – Brazil, Russia, India, China and South Africa – for exceeding its narrow civilian protection mandate, and being content with nothing less than regime change, which was finally accomplished with the overthrow of Gaddafi in October 2011. The trouble was that, in responding to what rapidly became the even more alarming situation in Syria from mid-2011 onwards, that disagreement has translated into an inability of the Security Council to agree on almost anything at all – not only on the extreme step of military force, but even on lesser coercive measures like targeted sanctions, an arms embargo, or referral to the International Criminal Court.

Part of the reason for hesitation in Syria – and certainly the unwillingness to even begin to think about coercive military intervention – is that the geopolitics of the Syrian crisis are very different: complex internal sectarian divisions with potentially explosive regional implications, anxiety about the democratic credentials of many of those in opposition, no Arab League unanimity in favour of tough action, a long Russian commitment to the Assad regime, and a strong Syrian army meaning that any conceivable intervention would be difficult and bloody.

But there’s more to it than that. Consensus about doing anything has simply evaporated in a welter of recrimination about how the NATO-led implementation of the Council’s Libya mandate – “to protect civilians and civilian populated areas under threat of attack” – was actually carried out.

The complaints of the BRICS, all of whom were sitting on the Security Council at the relevant time – in an interesting foretaste of the kind of Security Council membership more representative of current world power balances that many of us have been arguing for – have not really been about the initial military response: destroying Libyan air force infrastructure, and air attacks on the ground forces advancing on Benghazi. Rather the concern was about what came after, when it became rapidly apparent that the three permanent Council-member states driving the intervention (the US, UK and France, or “P3”) would settle for nothing less than regime change, and do whatever it took to achieve that.

Particular concerns were that the interveners rejected ceasefire offers that may have been serious, struck fleeing personnel that posed no immediate risk to civilians and locations that had no obvious military significance (like the compound in which Gaddafi relatives were killed) and, more generally, comprehensively supported the rebel side in what rapidly became a civil war, ignoring the very explicit arms embargo in the process.

The P3 The P3 (i.e. permanent members US, UK and France) have not been without some answers to these charges. If civilians were to be protected house-to-house in areas like Tripoli under Gaddafi’s direct control, they say, that could only be by overturning his whole regime. If one side was taken in a civil war, it was because one-sided regime killing sometimes leads (as now in Syria) to civilians acquiring arms to fight back and recruiting army defectors.  Military operations cannot micromanaged with a ‘1,000 mile screwdriver’. And a more limited ‘monitor and swoop’ concept of operations would have led to longer and messier conflict, politically impossible to sustain in the US and Europe, and likely to have produced many more civilian casualties.

But while these arguments have force, the P3 resisted debate on them at any stage in the Security Council itself, and other Council members were never given sufficient information to enable them to be evaluated. Maybe not all the BRICS are to be believed when they say that, had better process been followed, more common ground could have been achieved.  But they can be when they say they feel bruised by the P3’s dismissiveness during the Libyan campaign – and that those bruises will have to heal before any consensus can be expected on tough responses to such situations in the future.

The better news is that a way forward has opened up. Brazil initiated a debate at the end of 2011, that that has been continuing since, that consensus on the Security Council might be able to be recreated in these hardest of cases, if the idea could be accepted of supplementing R2P, not replacing it, with a complementary set of principles and procedures which it has labeled “responsibility while protecting” or “RWP”.

Alex Bellamy spends quite a lot of time in his report teasing apart the various elements of the Brazilian proposal as he reads them, some of which were more than a little problematic in their original articulation (like the initial emphasis on chronological rather than logical sequencing of the different Pillar responses) and others (like the emphasis on prevention) were wholly welcome but not new. But I think it important to focus now on what is really the nub of the proposal as it presently stands, which really has (as acknowledged by the Brazilian Perm Rep to the UN in her contribution to the Sept 2012 UNGA debate) just two major substantive elements, which can be quite succinctly described.

First, there should be a set of prudential criteria (including in particular “last resort”, “proportionality” and “balance of consequences”) to be fully debated and taken into account before the Security Council mandates any use of military force (which is something for which my own Commission argued back in 2001); and second, there should be some kind of enhanced monitoring and review processes which would enable such mandates to be seriously debated by all Council members during their implementation phase, with a view to ensuring so far as possible that consensus is maintained throughout  the course of an operation.

The initial reaction by the P3 powers to the Brazilian RWP proposal when it was first articulated was very sceptical – “these countries would want all those delaying and spoiling options, wouldn’t they” – and some of that attitude persists [GE and For Sec]. There has been a lot of wriggling around  suggesting that existing accountability mechanisms on the Council are basically adequate (and Alex p 32 gives a little more credence to them than I would be inclined to – tho does suggest that additional well established mechanisms like sunset clauses and specific reporting mechanisms would be helpful0

But their Syrian experience has begun to compel some rethinking by the P3. The reality is that if an un-vetoed majority vote is ever going to be secured again for tough action in a hard mass atrocity case – even action falling considerably short of military action – the issues at the heart of the backlash that has accompanied the implementation of the Libyan mandate, and the concerns of the BRICS states in particular, simply have to be taken seriously, voicing as they do the concerns of a much wider swathe of the developing world.

There are bound to be acute frustrations and disappointments and occasions for despair along the way, but that should not for a moment lead us to conclude that the whole R2P enterprise has been misconceived. There is effectively universal consensus now about its basic principles – that is very clear from the annual debates which have taken place in the General Assembly every year since 2009, including in 2011 and 2012 when disaffection over the Libya mandate issue was at its height. It is true that there has been more visible enthusiasm expressed, in many state contributions, for the general obligations involved in Pillars One and Two, than there has been for the more challenging demands of Pillar Three – and also true that there is widespread recognition that there is always likely to be disagreement about how best to respond to a catastrophically deteriorating situation.

But none of this has translated into any continuing challenge to the notion that timely and decisive collective action may indeed be necessary where a state is manifestly failing to meet its responsibility to protect its own people. As Secretary General Ban Ki Moon put it in 2011:  “It is a sign of progress that that our debates are now about how, not whether, to implement the Responsibility to Protect. No government questions the principle.” Moreover the Security Council, for all its divisions over Libya and Syria, has continued since those divisions to use explicit “R2P” language where appropriate, for example in resolutions on Yemen and South Sudan and Mali and a presidential statement on the role of prevention in international peace and security.

The disagreement in the UN is really only about how it is to be applied in the hardest of cases. Given the nature of the issues involved, that’s not unexpected  – and it can certainly be assumed that only in the most extreme and exceptional cases will coercive military intervention be authorized by the Security Council .

What is much better now understood by policymakers now around the world – even if they are not always acting accordingly – is that if the Security Council does not find a way of genuinely cooperating to resolve these cases, working within the nuanced and multidimensional framework of the R2P principle, the alternative is a return to the bad old days of Rwanda, Srebrenica and Kosovo. And that means either total, disastrous, inaction in the face of mass atrocity crimes, or action being taken to stop them without authorization by the Security Council, in defiance of the UN Charter and every principle of a rule based international order.

After all that has been achieved in the last decade, that would be heartbreaking. Being the congenital optimist that I am, I believe it won’t happen, and that sanity and decency will prevail. But all of those of us who care are going to have to work very hard to ensure that it does.