Uneasy Bedfellows: "The Responsibility to Protect" and Feinstein-Slaughter's "Duty to Prevent"

Commentary by Gareth Evans, Co-Chair of the International Commission on Intervention and State Sovereignty, on Lee Feinsten and Anne-Marie Slaughter, “The Duty to Prevent” (Foreign Affairs, Jan/Feb 2004), The American Society of International Law Conference, Washington DC, 1 April 2004

I.

I approached the Feinstein-Slaughter paper wanting very much to find no bones to pick with it. The issue - proliferation of weapons of mass destruction - was an extraordinarily critical one; the approach was avowedly preventive, and supportive of collective rather than unilateral action; and the presentation paid gracious homage to my own Commission’s work on “The Responsibility to Protect”: these days I am pathetically grateful when my work is even noticed, let alone acknowledged as a source of intellectual inspiration!

And indeed there is much in the Feinstein-Slaughter position that anyone could agree with. For example:

recognition that the present NPT is seriously flawed, in that it does allow parties to the treaty to develop all the crucial capacity to make nuclear weapons without effective constraint, and then to walk away from the treaty without effective penalty; recognition that effective non-proliferation regimes require effective strategies not only to curb the supply of nuclear weapons and materials, but also the demand for them, and in this context, for example, security assurances can be very useful; recognition that in dealing with proliferation problems, use of force must be the last, not a first, resort - and that diplomatic pressure, economic measures (like bilateral and IFI support, and trade assistance) and non-military coercive measures (like targeted sanctions) should always be considered and found wanting before military force is contemplated; and recognition that there are multiple other prudential criteria that must be satisfied before military force is applied.

II.

But all that said, there are a number of things about the paper which make me distinctly uneasy. Let me spell them out.

(1) The focus throughout on regimes rather than actual behaviour in relation to WMD.

The rule of law is always at risk when the focus is on what people are rather than what they do, or are demonstrably likely to do. It seem to me important, if the international legal system is not to become even more anarchical than it is already, for this principle to be accepted as much in international law as it is in domestic law.

We are told by Feinstein-Slaughter that they “are not trying to distinguish ‘good’ from ‘bad’ governments” (p.142). But the focus of their whole argument is unquestionably on “closed societ[ies] with no effective internal opposition”, those that “lack internal checks on their power” (albeit making a practical exception for those like China who are too big to touch). It is not on more open societies who might behave equally badly.

(2) The bar for action, including coercive action, against such regimes seems to be set too low.

Saddam Hussein “posed a threat warranting intervention” we are told (p.139) “simply because of his absolute power, his past behaviour and his expressed intentions”, or “the nature of his regime and his determination to acquire and use WMD”.

While it is certainly true that capacity and intent can together add up to threat of a kind that can justify coercive Chapter VII action, including ultimately military action, there has to be credible evidence of both. That proved notoriously lacking in the case of Iraq, and is insufficiently acknowledged as a constraint on action against other unattractive states on the Feinstein-Slaughter list.

(3) The level of proof required for any kind of preemptive or preventive action is insufficiently acknowledged.

I have no difficulty in principle with the notion that Article 51 self-defence (and indeed, even more obviously, action under Chapter VII against any kind of threat to international peace and security) should not necessarily be confined to situations of actual or imminent attack - although I would have difficulty in ever penning a line like “the biggest difficulty with the Bush pre-emption strategy may be that it does not go far enough” (p.136)!

What I would strongly argue, however, is that if an attack is not actual, and not imminent, then it certainly must be real. Feinstein-Slaughter acknowledge the problem of achieving clear evidence to justify imminence, but the problem is just as acute – as we now know better after Iraq – in establishing any kind of threat at all. My own formula here (with which they may not disagree) is that the less imminent a threat, and the less the available evidence of its reality, the greater the necessity for multilateral support for any coercive action taken.

(4) There is too ready an acknowledgement of the legitimacy of options not involving Security Council endorsement.

Not just any multilateral support is enough to legitimise coercive action. While acknowledging the “unmatched legitimacy” of the UN Security Council (p.148), Feinstein-Slaughter are I think a little too quick to acknowledge the legitimacy of non-Security Council endorsed options if that endorsement is not forthcoming. Regional organisations, which are identified as “the second most legitimate enforcer[s]” do have a role under Chapter VIII of the Charter, and it may be that they can and should play a more active role in the future, but this should always be with the support of the Security Council – even if only after the event.

As to a more or less open-ended mandate for NATO, which Feinstein-Slaughter seem prepared to contemplate on the ground that it has “a sufficiently broad membership to permit serious deliberation over the exercise of a collective duty” (p.148-9) – this is likely to be a rather less attractive option for most other countries.

This leads me to the last and most serious of my reservations.

(5) The “Duty to Prevent” argument is not only not a natural corollary of the “Responsibility to Protect” principle, but has the potential to actively undermine it.

The point is made at the outset that “like the responsibility to protect, the duty to prevent begins from the premise that the rules governing the use of force, devised in 1945 and embedded in the UN Charter, are inadequate” (p.137). The two cases, however, are significantly different. The problem with intervention to deal with purely internal catastrophic human rights violations is that there is no real foundation at all in the Charter for such action - with the prohibition against intervention in internal affairs not really balanced by the desultory references to human rights. On the other hand, there are clear rules in Chapter VII about self-defence and the use of force to meet international threats - and the only question is about their scope and limit.

What Feinstein-Slaughter are all about is further extending the scope of both Article 51 and Chapter VII more generally - and perhaps in the process making it more difficult to win consensus about the existence at least of emerging norms justifying “humanitarian intervention” at least in cases, as my Commission argued, of large scale killing or ethnic cleansing, occurring or apprehended.

This leads to the key issue. My Commission argued that the Responsibility to Protect principle only justified military action in extreme and exceptional circumstances - where there was actual or immediately apprehended behaviour involving large-scale killing or ethnic cleansing.

I can find no similarly circumscribed prescription in Feinstein-Slaughter. While the emphasis is certainly on prevention by non-coercive means, when these non-coercive measures have run their course, and there is still a perception that an odious regime with no internal checks may be in the business of acquiring WMD, then all bets seem to be off. This goes very much further than my Commission did, and if the prescriptions here are seen to be in harmony with the Responsibility to Protect ones, I really do fear that the Responsibility to Protect principle will be strangled at birth.

We made a huge effort on my Commission to formulate the Responsibility to Protect principle - distinguishing it carefully from the “right to intervene” - in a way that was capable of winning, if not immediately, a broad international consensus. We came at the issue through the responsibility of states themselves, making it clear that only if that responsibility was abdicated, deliberately or by force of circumstance, did the responsibility shift to the wider international community.

The wider one opens the gates for coercive intervention, the less the prospect of achieving any ultimate consensus - and certainly any evolution of what could genuinely be described as customary international law. And Feinstein-Slaughter throw the gates for intervention very wide indeed.

III.

This is not the occasion to embark on any detailed description of what policy measures are needed to address the problem of WMD proliferation, both on the supply and demand side. But I have to say my own preference is squarely to opt for objective, or country-neutral, measures that are of general application - that do treat, at least as a matter of law, Norway and North Korea the same (cf. p.144). I don’t believe a serious commitment to the rule of law in international affairs allows any other course.

What is necessary is to strengthen the rules as they presently exist, so that there are many more constraints than exist at present, and to enforce them more effectively. None of this may be necessary in practice for a Norway, which we assume would not need the extra constraints to behave appropriately. But there is every reason in principle why the good guys and less good guys should be subject to the same regime. For rules to stand a chance of universal acceptance, they must be universal in their scope.

We need to develop new and tougher universal rules that prevent proliferation the old-fashioned way, through the hard diplomatic work of negotiating legal regimes and then putting appropriate resources into enforcing them.

On the supply side the kind of measures that need to be worked on include:

tighter regulation of internal fuel cycle activities for NPT members; more stringent export control systems for NPT members; prohibitions on painless withdrawal from the NPT; effective interdiction measures able to be lawfully applied against non-NPT members and non-state actors; negotiation of a fissile material cut-off treaty; improved protective security and destruction regimes for fissile and other dangerous materials; and improved multilateral intelligence capability.

On the demand side, we need to fully understand the range of reasons states seek to acquire WMD, to acknowledge that more often than not the motivation is not inherently aggressive, but related to considerations like perceived defensive security needs, national prestige and domestic political pressures; and for the “haves” to respond in ways that reduce the “have-nots” incentives to acquire. Those ways include not only giving security assurances in appropriate cases (an approach which Feinstein-Slaughter explicitly support) but also, for example:

not testing or further developing new classes of WMD; not applying systematic double standards in accepting acquisition of WMD by some countries but not others; not applying double standards in condemning or reacting to proliferation activity; getting serious about arms reduction; and making a serious commitment to the elimination objective in Article VI of the NPT.

Reducing the demand for WMD is partly a matter of effectively addressing the supply side of the equation: if one doesn’t fear that others are acquiring capability, there is less reason to acquire it oneself. But beyond that, it is not so much a matter of setting legal constraints as recognising psychological needs. If large and proud states like India feel that they are being condemned to permanent second-rate status, and to being the permanent beneficiaries of great power double standards, it is inevitable that they will seek to salvage some pride in other ways.

What is necessary is to get away from the habit of mind which automatically assumes that some countries will do the right thing without need of any collective constraint, legal fetter, political pressure or threat of coercion, and others are congenitally incapable of it. The “Duty to Prevent”, despite the wonderfully good intentions of its authors, does seem to reflect quite a lot of that worldview, and as such does not, I am afraid, have quite the same appeal outside the U.S. as it may have within it.