Russian Atrocities in Ukraine & The Future of R2P

Address to Young Diplomats Society, University of Melbourne, 17 August 2022

There can be little doubt that, since Russia’s invasion of Ukraine six months ago, on 24 February, its forces have been committing war crimes and crimes against humanity on a massive scale. Over 20,000 alleged Russian atrocity crimes are currently under investigation by the International Criminal Court, exercising the jurisdiction conferred upon it by a declaration from Ukraine under Art 12(3) of the Rome Statute, supported by more than 40 countries who agreed in July to coordinate their investigative efforts with the ICC prosecutor.

While no concluded findings have yet been announced, for a great many of these alleged atrocities there is clearly a strong evidentiary foundation, including shelling, bombing and missile strikes of civilian apartment blocks, schools and hospitals; summary executions; rape and torture; forced deportations; enforced disappearances and arbitrary detention. It is anticipated that at least some indictments will be issued before the end of this year, although in the absence of any cooperation from Russia the ICC will then face the familiar problem of actually bringing to trial those indicted who are not already in custody.

It is also the case that claims have been made of war crimes being committed by Ukraine’s own troops – including the mistreatment, and in some cases shooting of detained Russian and Russian-backed soldiers – and it is critical for the ICC’s credibility that it seriously investigate these as well, to the extent that Ukraine itself (whose credibility is also at stake here) does not do so. But these allegations pale in comparison, in their nature and scale, with Russia’s own likely atrocity crimes. And certainly the Russian claim – as one pretext for its invasion – that Ukraine had been perpetrating genocide against Russian-speakers in the eastern Donbas region can be dismissed as completely fanciful.

Whatever happens with the ICC and international criminal law prosecutions, this is just one dimension of the larger lens through which the world should be viewing and reacting to Russia’s atrocity crimes in Ukraine: they are in flagrant breach of the responsibility to protect (R2P) principles which Russia itself endorsed at the 2005 World Summit, and since in multiple Security Council resolutions as well as UN General Assembly debates. In the language of the World Summit Outcome Document, unanimously endorsed by heads of state and government:

The international community, through the United Nations… has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means… 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…

The question is what form that ‘timely and decisive… collective action’ should now take in the Ukraine, apart from international criminal law investigation and prosecution through the ICC and other legal mechanisms. In particular, should the international community be seriously considering the use of direct military force to respond to Russia’s excesses – not only its manifest breach of the most fundamental principles of the UN Charter, in launching aggressive cross-border war against another sovereign state with no shred of self-defence justification, but its war crimes and crimes against humanity manifestly committed during the course of that invasion? There are some voices saying that such direct international military action (not just supporting Ukraine’s own military action) should be initiated – and some other voices, probably even more of them, saying that the failure to take such action is yet another demonstration of the impotence and irrelevance of R2P when it comes to responding to real-world atrocity crime crises. How credible are those voices?

Any consideration of the use of miliary force, in any context, has to address two separate issues: legal right and prudential sense. Legality would not be in issue here, even in the absence of Security Council approval under Chapter VII of the UN Charter, impossible given the inevitability of a Russian veto. Assuming any external intervention would be with Ukraine’s consent: Art 51 of the Charter makes very clear the right of not only individual but collective self-defence. The much more difficult issue is whether any such intervention would make prudential sense, or – putting it another way – have moral legitimacy.

Though never formally endorsed by the UN – though I live in hope that one day they will be – five prudential criteria have become part of the general currency of international debate over the last two decades:

The first is the seriousness of threat. Is the threatened harm to state or human security of a kind, and sufficiently clear and serious, to justify prima facie the use of force?

Second, there is proper purpose. Is it clear that the primary purpose of the proposed military action is to halt or avert the threat in question, whatever other purposes or motives may be involved?

Third is last resort test. Has every non-military option for meeting the threat in question been explored, with reasonable grounds for believing that lesser measures will not succeed?

Fourth there is proportionality. Is the scale, duration, and intensity of the proposed military action the minimum necessary to meet the threat in question?

Finally, there is balance of consequences, which is probably the most important test of all. Is there a reasonable chance of 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 short, will a military intervention do more harm than good?

One of the main attractions of these criteria is that they are in no way culture- or religion-specific. Though they have an obvious pedigree in Christian “just war” theory, which dates back to the early Middle Ages, they resonate equally, and are not at all inconsistent, with the world’s other major intellectual and religious traditions, including Islam, Judaism, Hinduism, and Buddhism.

Having originated in the 2001 report by the International Commission on Intervention and State Sovereignty, which initiated the R2P concept and which I co-chaired, they gained further traction in the report issued by the UN Secretary-General’s High-Level Panel on Threats, Challenges, and Change in the lead-up to the UN’s 60th anniversary summit in 2005. It is now very widely, if not universally, accepted that any use of military force must pass these five tests to be accepted as morally and politically legitimate.

While in the Ukraine case it is certainly arguable that the first four of these criteria would or could be satisfied, the showstopper is the fifth, balance of consequences. Any direct military action against Russia by NATO or any of its members would inevitably trigger a much wider war – in the worst case a nuclear one – with an exponential increase in casualties and suffering. This is a perennial problem, when it is a major power that is misbehaving, and not a Libya or Rwanda. No matter how badly China might behave in Xinjiang or Tibet, any military intervention would inexorably lead to full scale war, with casualties and immiseration on a much greater scale than anything that could conceivably have been averted by such action. This is not about double standards; it is about a realistic calculation of the balance of harm.

The crucial point to make is that ruling out the direct military intervention option in Ukraine does not mean the end of the story for R2P. Giving military support by supplying weapons and ammunition and transport vehicles and intelligence is consistent with the so-called second pillar of R2P, the responsibility to assist those in trouble trying to respond to mass atrocity crimes. And military support of any kind is just one coercive element in the R2P reaction toolbox: others include sanctions and economic boycotts, already being applied to considerable effect, the international criminal law prosecutions I have already discussed, and diplomatic isolation. While we cannot be sure that these non-military measures, will ultimately be decisive, they make a formidable combination.

The whole point of initiating the Responsibility to Protect concept was to build global consensus about how to respond to mass atrocity crimes – particularly those occurring within the boundaries of a single sovereign state – where none had previously existed around the concept of ‘humanitarian intervention’, the right to intervene militarily. We found that consensus not only by changing the language of the debate from ‘the right to intervene’ to the much less inherently neuralgic ‘responsibility to protect’, and broadening the focus away from just reaction toward prevention, but above all by making clear that, when prevention failed and it did come to reacting to atrocity crimes already under way, military intervention was not the only coercive game in town.

With the jury still out on Ukraine, where do we now stand with R2P generally? Is it a concept whose time has come and gone, or does it still have a future? There are plenty of cynical voices to be heard saying that the whole enterprise has been a complete waste of time, or worse. And looking at the catastrophes that have continued to occur in places like Sri Lanka, Myanmar, Yemen and above all Syria, that’s not an easy argument to contest.

But contest it I do, taking as my benchmarks the four big things that R2P was designed to be: a normative force; a catalyst for institutional change; a framework for preventive action; and a framework for effective reactive action when prevention has failed. There is zero room for complacency. But if we take hard, objective stock of what has, and has not, been accomplished over those seventeen years, there is much to celebrate, and much still to be reasonably optimistic about on each of these four fronts.

Normatively, the concept of ‘the responsibility to protect’ has achieved a global acceptance unimaginable for the earlier concept of ‘the right of humanitarian intervention,’ which R2P has now rightly and almost completely displaced. Many states are still clearly more comfortable with the first two pillars of R2P– the responsibility of states to protect their own citizens, and to assist others to do so – rather than the third: taking timely and decisive collective action when prevention has failed. And there will always be argument about what precise form action should take in a particular case. But there is no longer any serious dissent evident in relation to any of the elements of the 2005 Resolution. The best evidence for this lies in the General Assembly’s annual debates since 2009, which have shown consistent, clearly articulated and overwhelming numerical support for what is now widely accepted as a new political (if not legal) norm, and in the more than one hundred resolutions and presidential statements referencing R2P that have now been generated by the Security Council.

I don’t suggest for a moment – particularly with Russia, and increasingly China, playing the spoiling role they now have on the Security Council – that R2P has become so embedded in international practice that it now counts as a new rule of customary international law. But when considered as a guide to behaviour, I believe that R2P is more than just an ‘emerging’ norm: it is a new norm.

Institutionally, R2P has brought more organized attention to civilian response capability, and to the need for militaries to rethink their force configuration, doctrine, rules of engagement, and training to deal better with mass atrocity response operations. Importantly, more than sixty states and intergovernmental organizations – most recently the Organization of American States – have now established R2P ‘focal points’ – designated high-level officials whose job is to analyse atrocity risk and mobilize appropriate responses. They have been encouraged to do so by indefatigable lobbying and secretarial support from the Global Centre for the Responsibility to Protect, the New York based NGO whose International Advisory Board – full disclosure! – I continue to chair, and whose website, I have to say, is an excellent resource for anyone interested in any aspect of R2P.

Creating a culture of more effective support for the institution of the International Criminal Court (ICC) is crucial not only for the trial and punishment of some of the worst mass atrocity crimes of the past, but to deter future perpetrators. Implementation of the ICC’s mandate may not always have been perfect in its early years, but the court does not begin to deserve the attacks upon its integrity it has endured from some African leaders and, above all, the Trump administration. There are encouraging recent signs that the wheel may be turning for international criminal justice, with the support now evident for the ICC’s Ukraine investigations, and also the momentum being generated by the Gambia-initiated case filed against Myanmar at the International Court of Justice (which adjudicates the behaviour of states, not individuals) for their atrocities against the Rohingya.

Preventively, R2P-driven strategies have had a number of successes, notably in stopping the recurrence of violence in Kenya, the West African cases of Sierra Leone, Liberia, Guinea, Côte d’Ivoire and The Gambia, and in Kyrgyzstan. Today, some volatile situations such as the ongoing crisis in Central African Republic, get recurring Security Council attention of a kind unknown to Rwanda in the 1990s. Strong civilian protection mandates are now the norm in peacekeeping operations. And the whole preventive toolbox—long-term and short-term, structural and operational—is much better understood.

But, although prevention is very much the UN flavor of the month – and has been the main focus of successive Secretary-General’s reports and General Assembly debates – action still lags behind the rhetoric. Part of the problem of getting sufficient resources to engage in successful prevention is the age-old one that success here means that nothing visible actually happens: no-one gets the kind of credit that is always on offer for effective fire-fighting after the event.

Coming to the last of my four benchmarks, how effective has R2P been reactively? This is arguably where it matters most that R2P make a difference – stopping mass atrocity crimes that are under way, whether through diplomatic persuasion, stronger measures like sanctions or criminal prosecutions, or through military intervention. On the positive side have been success stories again in Kenya and Côte d’Ivoire, and (at least initially, in stopping the almost universally-feared massacre in Benghazi) Libya, as well as the partial successes that can be claimed for UN operations in the Congo, South Sudan, and the Central African Republic. But against these must be weighed serious failures in Sri Lanka, Sudan, Myanmar, Yemen and, above all, Syria.

The crucial lapse in Syria occurred in mid-2011, when the Assad regime’s violence was one-sided and containable. Driven by the perception, not itself unreasonable, that the Western powers – the US, UK and France – had overreached in Libya by stretching a limited mandate to protect civilians into a regime-change crusade, a number of Security Council members then over-reached in the other direction. Seeing as they did another slippery slope ahead of them in Syria, there was no majority support for a resolution even just to condemn the regime’s violence against unarmed civilians. And with the Syrian leadership sensing its impunity, the situation deteriorated quickly into the full-scale civil war still dragging on disastrously today. Re-establishing Security Council consensus in these hardest of cases will be extremely difficult, not least with the current toxic dynamics of US relations with both Russia and China.

Whatever the uncertainties that lie ahead in the medium term, I am optimistic enough to believe that R2P has a future, in all its dimensions. As one of those who conceived it, I can attest that R2P was designed for pragmatists rather than purists, with full knowledge of the messy reality of real-world state motivations and behaviour. It was designed not to create new legal rules but rather a compelling new sense of moral and political obligation to apply existing ones. And for all that continues to go wrong, real progress has been made in achieving just that: a new norm of international behaviour which -- overwhelmingly, if obviously not universally – states do feel ashamed to violate, compelled to observe, or at least embarrassed to ignore.

While there will always be argument about what preventive or reactive tools are appropriate in particular cases – and while occasional thuggish defiance of any global consensus is, unhappily, probably inevitable – it is much harder than it used be to identify any state anywhere whose leadership sees no place for any toolbox at all.

I see little visible stomach anywhere for a return to the bad old days when genocide and other appalling crimes against humanity, particularly those committed behind sovereign state walls, were of no concern to anyone but their victims. While “Never Again” has too often in the past been a hollow cry, with the advent of R2P I think we can say it has at least recovered its power to shame.

All that said, R2P in many ways remains work in progress, and there is much more work to be done in consolidating its effectiveness. The future of the responsibility to protect will only be assured if we – and in particular you, the next generation of policymakers -- fight for it. Like almost everything else that matters when it comes to attitudinal and behavioural change, domestically or internationally, the momentum for change can come from three different directions – top-down, sideways from peer group members, and bottom-up. And it is obviously most successful when initiatives and pressure are coming from all three.

As to top-down moves, there is no more important or urgent task for R2P advocates than to rebuild consensus within the Security Council as to the right way to handle the hardest of cases. It is important in this respect, even if not immediately likely to resonate with the states that matter most, that new momentum be generated in support of two initiatives in particular. First, the French proposal of a few years ago that the five permanent members of the Security Council enter a voluntary self-restraint agreement not to exercise their veto in mass atrocity cases, and the related proposal by the so-named Accountability, Coherence and Transparency (ACT) Group for a Code of Conduct binding all Council members when dealing with atrocity situations. Together, these parallel initiatives have been signed by over 120 governments.

The other top-down initiative which I would love to see re-energised is the Brazilian ‘Responsibility While Protecting’ (RWP) proposal, crafted in 2011 as a solution to the impasse over Libya, which would require all Council members to debate more comprehensively the criteria that need to be met before any use of force is authorized, and to accept close monitoring and review of any coercive military mandate throughout its lifetime. Russia and China have shown some willingness to go down this path in the past, and -- their preference for ad hocery apart, unhappily not confined to Washington -- there is no good reason in for the US, UK or France to oppose it.

Sideways, or peer group pressure and activism can be very important in generating new international standards of behaviour, and adherence to existing ones, including by the biggest global players. The UN Group of Friends, with over fifty members and chapters in both New York and Geneva and for which again the Global Centre on R2P acts as the secretariat, is an important mobilising force in the UN system. Regional organizations have a particular role to play here, as the Arab League did over Libya, and the African Union and ECOWAS in West Africa have repeatedly demonstrated.

Middle powers can be important coalition builders and norm setters, as Canada demonstrated in in initiating not only the Commission which gave birth to R2P, but the Ottawa treaty banning land mines. Australia, has in the past also played a major energising role on global public goods issues – and has been a leading supporter of R2P from the beginning – but we have unhappily tarnished our human rights reputation in recent years, in particular with our treatment of asylum seekers, and the recent shocking revelation of war crimes committed by our special forces in Afghanistan. Credible advocates have to have their own house in order.

As to bottom up pressure, it is critical to acknowledge the importance of ordinary individuals in the community making their voices heard on these issues, whether through an NGO or a political party or just as concerned citizens. Effective atrocity prevention depends above all else on the exercise of political will of those in power, and getting decision makers off their backside depends – as I know better than most after 21 years in politics and government – on them hearing, loudly and clearly, many passionate community voices telling them that human lives are at risk and that inaction is intolerable.

My last words are on the critical necessity for all of us, governments, intergovernmental organizations, NGOs and ordinary citizens is to stay optimistic, to go on believing that what we do can and will make a difference. The crucial point is that in international relations, as in life itself, outlooks can be self-reinforcing. Pessimists see conflict, horror and sheer human idiocy of one kind or another as more or less inevitable, and adopt a highly wary and competitive approach to the conduct of international relations. But for optimists of all stripes and colours, what matters rather is believing in and nurturing the instinct of cooperation in the hope, and expectation, that decent human values will ultimately prevail. If we want to change the world for the better, we must start by believing that change is possible.

But while optimism may be self-reinforcing, it is not self-fulfilling. When things that matter get depressing and difficult, however disappointed and frustrated we may be, there is no alternative but to try actively to remedy them, in every way one realistically can. You don’t get to change the world simply by observing it. You have to get out there and work for change. It’s too late now for me and my generation to make much difference, but yours very much can, and I very much hope you will.