A Rule-Based International Order: Illusory or Achievable?, Gareth Evans

2006 Dankwart A. Rustow Memorial Lecture by Gareth Evans, President of International Crisis Group and former Foreign Minister of Australia, Graduate Center, City University of New York, 19 September 2000

CUNY and the Rustow Lecture

Australians are notoriously rather less deferential than they should be in the presence of great men and women and great institutions, but tonight you are certainly putting me and that tradition to the test. The Dankwart A. Rustow Memorial Lecture, as befits the late very Distinguished Professor Emeritus whom it commemorates, has been delivered in past years by a cast so distinguished – including Richard Goldstone, Mary Robinson and Michael Walzer among others - as to make even an Antipodean feel a little over-awed, and I am very deeply honoured to have been invited by this great university to join their company.

But that’s not the only deference the occasion demands. My invitation came from not only one of CUNY’s, but the nation’s and indeed the world’s, finest scholars, Professor Thomas Weiss, the Director of the Ralph Bunche Institute here and the co-director of its UN Intellectual History project, with whom I had the enormous pleasure and privilege of working when he was Research Director and I the Co-Chair of the International Commission on Intervention and State Sovereignty, of which you will hear a little more later. Tom’s output is prodigious – with over 35 books and innumerable scholarly articles to his credit, it is probably more manageably measured these days in pounds (maybe now tons…) than in pages - but all of it is analytically rock solid, lucidly written, and informed by a passionate desire to make this world and its governing institutions work more efficiently and fairly. Tom is a uniquely distinguished contributor to global public policy, and it’s a privilege to be on this platform with him. I only hope his reputation for balanced and rational judgement has not been irredeemably ruined by his choice of tonight’s lecturer.

An International Order under Challenge

The issue I want to address tonight is whether things are as bad as they currently seem in the international order and, to the extent that they are, what international policymakers can and should be doing about it.

Certainly there are plenty of obvious reasons for gloom, with the last two months painting as grim a picture of international disorder as we have seen for some years, with the conflicts in Lebanon and Gaza; the continued slaughter in Iraq; the deteriorating situations in Afghanistan and - yet again - in Darfur; the recurrence of major violence in Sri Lanka; continuing anxiety about Iran’s nuclear intentions; a new outbreak of tension in the Korean peninsula with Pyongyang’s missile tests; major terrorist bomb attacks in Mumbai; and now – today’s news – a military coup in Thailand. Add to that the effective collapse of the Doha Trade round, no sign of any new commitment to an effective international climate change regime, the ever-widening cracks in the nuclear non-proliferation treaty regime, no willingness to act against the hugely destructive small arms trade, minimal progress on the devastating global narcotics trade, and no evidence of any renewed momentum for UN reform after the disappointing outcome of the 2005 World Summit, and one has about as bleak a picture as it’s possible to paint.

All that said, multiple individual problems don’t necessarily add up to systemic failure. In international affairs, as in life itself, things sometimes just get out of hand – and as often as not the wheel turns, and some sort of equilibrium is restored. The second-term Bush administration is clearly more cautious than the first about embarking on new military adventures: life is a learning experience, even for neo-cons. There are some positive signs that the shock of the war in Lebanon – the widespread recognition among all but the most obdurate that everyone was a loser from it, except the extremists around the world who prosper on the rage the Arab-Israeli conflict continues to provoke – has concentrated minds once again on the need for a comprehensive negotiated settlement, once and for all, of all the outstanding issues. And there is also some emerging confidence that a serious negotiation track might, after all, be possible with Iran.

Moreover, at a more general institutional level, while politics as usual have continued to prevail, to depressing effect, in the UN Security Council, and multilateral institutions everywhere, none of those institutions seem on the verge of collapse, and there have in fact recently been some significant positive additions to the architecture of international order, including the new International Criminal Court, and the new Human Rights Council and Peacebuilding Commission. All the major security issues of the day are now, one way or another, on the UN’s agenda, with much less sign than there was even a year ago of the Security Council and Secretary-General being sidelined. More UN peacekeepers are on the ground than at any time since the early 1990s, with a five-fold increase since 2000, and the prospect of nearly a 50 per cent further increase over the next few months if Security Council decisions in recent weeks about new and expanded operations in Lebanon, Timor-Leste and Darfur are fully implemented.

Moreover the recently published Human Security Report provides abundant evidence that these kinds of deployments – and all the diplomatic effort that has gone with them – in fact bear fruit. Pulling together for the first time a mass of data not collected by any international agency this study finds that since the early 1990s there has been a dramatic decrease in the number of serious conflicts and mass killings (around 80 per cent in each case), an even more striking decrease in the number of battle deaths and a complete turnaround in the number of conflicts peacefully resolved. A number of reasons contributed to these turnarounds, including the end of the era of colonialism, which generated two-thirds or more of all wars from the 1950s to the 1980s; and of course the end of the Cold War, which meant no more proxy wars fuelled by Washington or Moscow, and also the demise of a number of authoritarian governments, generating internal resentment and resistance, that each side had been propping up. But, as the authors argue, the best explanation is the one that stares us in the face, even if a great many don’t want to acknowledge it: the huge increase in the level of international preventive diplomacy, diplomatic peacemaking, peacekeeping and peacebuilding operations, for the most part authorised by and mounted by the United Nations, that has occurred since the end of the Cold War. And maybe NGOs like the International Crisis Group may have played a role a significant role as well: that’s our story anyway, and we’re sticking to it!

Just one more piece of cheering news. For everything that went catastrophically wrong in August, last month marked the longest interlude of interstate peace that the world has seen for more than half a century - 1,000 consecutive days with no wars anywhere in the world between nations, of government against government.1 This is the culmination a general trend evident now for several decades: fewer and fewer conflicts between states, with such conflicts as are occurring being within state borders, or – as with the Lebanon war – between states and non-state actors.

And yet. It’s hard to be confident that all of this adds up to a stable, sustainable, rule-based international order. Do we really have any kind of global consensus as to when it is, and is not, appropriate to use military force in response to attacks or feared attacks across state borders? In response to actual or threatened terrorist attacks against individuals? In response to those engaged in massive human rights violations against their own people? If some use of force is perceived as legitimate, do we have any consensus about how much? Do we have any capacity to enforce that consensus if there was one? Is there really any will, or capacity, to deal once and for all with the impunity that perpetrators of crimes against humanity have routinely enjoyed? Are we really confident that when the next Rwanda or Srebrenica comes along, and we may again be on the edge of that kind of situation in Darfur, the international community will respond with the necessary vigour and commitment?

That these questions can be seriously asked is indication enough that there is still something seriously incomplete and fragile about the international order - not just in those areas like trade and the environment and organized crime where, in a new age of globalization and interdependence, effectively enforced new global rules are so obviously needed to maintain and improve the quality of human lives around the world, but in the most basic, fundamental, heartland area of all for international order: peace and security. Unless there is real, deliverable, consensus on when and how it is proper for states to use military force, then the notion of a rule-based international order is a very long way away from realisation. Getting right the use of force is obviously not the only issue at stake in determining whether we have a rules-based international order. In the peace and security area, I would give almost as much weight to how well we deal not just with states but with individuals who commit genocide and crimes against humanity. But given its centrality, and the time available, the force issue is the one on which I wish to concentrate in this lecture.

Where the challenges are coming from. It seems to me that the fragility of the international order in this heartland peace and security area is a function of challenges coming from three quite different directions. The first – and it goes to both state and human security - is from various non-state actors involved in terrorism, the illicit arms trade, the corrupt pillage of natural resources, and narcotics and human trafficking and other organized international crime. By their very nature these are never going to support a rules-based global order in any shape or form and they are very hard to control or eradicate. Witness the explosion of opium production and trafficking out of Afghanistan this year despite the best efforts of international agencies, new domestic drug enforcement units and large contingents of foreign troops; witness also the spectacular demonstration in Lebanon as to how the odds stack up when asymmetric warfare is intelligently waged. But for all the harm they do, these kinds of groups don’t threaten the international order’s existence any more than the continued appearance of criminals, a good many of whom escape justice, threatens the very existence of domestic legal systems.

The second challenge – and a more troubling one from our perspective here – is that posed by very powerful states who just don’t accept that the rules of the international system should be applicable to them or those under their protection, or to the extent that they are, should be observable on a discretionary, a la carte basis, as perceived national interest demands. During the Cold War years both the Soviet Union and US tended to behave that way, ignoring the constraints of the UN Charter in their respective hegemonies in the confident knowledge that that the veto was always there to protect them formally in the Security Council, and that they were too big to touch by anyone else. Since the Cold War ended the field has been left to the U.S. alone, and all too often it has played this familiar part.

One of the interesting things to outsiders about American exceptionalism is how innocently, in a sense, its basic frame of reference seems to be embraced by so many people in this country. I can’t put it any better than Anatol Lieven, writing in the Financial Times of 6 September, when he said that American nationalist myths “include a widespread belief that America is exceptional in its allegiance to democracy and freedom and that America is, therefore, exceptionally good. Because America is exceptionally good, it both deserves to be exceptionally powerful and by nature cannot use its power for evil ends…Americans’ sense of national mission resembles, to an extent, the belief of the great European imperial nations of the past that they were spreading ‘civilisation’ and ‘progress’ to the rest of the world…European nations in the 20th century had these nationalist faiths beaten out of them by repeated catastrophes. We can only hope that Americans will learn from their examples before it is too late.” There are plenty of signs now in the political firmament that many Americans are now thinking this through. But I’ve never heard the issue put so lucidly as I did once at a function by Bill Clinton: “We Americans”, he said, “have two choices – either to use our great power and wealth to try to stay top dog on the global block in perpetuity, or to use it to create a world in which we will be comfortable living when we are no longer top dog on the block.”

The third challenge, and it is also troubling, is from those states who are not strong enough, militarily or economically, to thumb their noses at the international system, and who stand overall to benefit – as all small and medium sized states surely do – from a universally accepted rule-based rather than power-based order, but who nevertheless, when reforms are in the air, play the role either of non-constructive contributors or – worse - outright spoilers, whether from old Cold War or anti-colonial habits, or just the momentary thrill of the ideological chase.

The spoiling role was certainly evident in the lead-up to the 2005 World Summit, when a hard core group of developing country members, led by Pakistan, Egypt and, as always Cuba, who – while rightly emphasising the need for a genuinely multilateral and collective approach to security, and for the most part knowing perfectly well that the world has moved on from the ‘50s and ‘60s, that state sovereignty can no longer be unchallengeable, and that quotas and cronyism are no substitute for effective management - nonetheless found grounds for opposing specific movement forward in nearly every one of the areas under debate. With the U.S. pursuing a blocking agenda of its own on a whole range of issues, this was a formidable pincer movement to overcome, and by and large it worked: the Summit was conspicuously silent on such crucial issues as disarmament and non-proliferation, a new norm-setting definition of terrorism, the definition of rules governing the use of force (the central theme of this lecture) and also the reconstruction of the Security Council (with the African bloc killing the proposal to add new permanent members by insisting they all have the veto: an issue used to paper over divisions between north and sub-Saharan Africa, and among the sub-Saharans, as to who would get the two African seats on offer - and one, incidentally, that was rather cynically exploited in the African Summit corridors by China2 for anti-Japan membership reasons of its own).

Part of the blame for non-progress on these matters should also be attributed to those states who may not relish the role of outright spoilers, but who have been passive bystanders when they could have been really constructive contributors. I don’t exempt my own country from that because there is much that Australia could be doing now – as we have done in the past as an active, well-resourced middle power – to advance the international peace and security agenda. An example of the kind of leadership required was shown in lead up to the 2005 World Summit by then Canadian Prime Minister Paul Martin, who by a series of well-timed phone calls to key counterparts, almost single-handedly rescued the ‘responsibility to protect’ concept from the fate of so many other important innovations that fell by the way.

The Use of Military Force3

Turning to the specific issue of the use of military force, we sometimes forget that the age of enlightenment – or potential enlightenment – so far as this most basic of all international order issues is concerned really only began with the United Nations Charter of 1945, creating as it did an institution designed, in the words of the Preamble, “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind”, and which laid down for the first time in history rules about who could use military force, and when, which on their face delivered on that rhetoric.

The Charter made 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, or in any other manner inconsistent with the Purposes of the United Nations”. It allowed only two exceptions to the prohibition on the use of force: self-defence under Article 51, 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”. These rules, far clearer and more explicit than anything previously attempted, including in the ill-fated League of Nations Covenant, were backed with a system of collective security much more potentially effective than anything that had gone before, with the centerpiece a Security Council empowered to deal forcefully with acts of aggression and threats to the peace. The sense was very real, and for good reason, that international relations had at last emerged from a centuries old jungle, and that a new age of international law had dawned.

Of course the almost immediate onset of the Cold War put the new international legal order promised by the Charter under huge stress, but after the Berlin Wall eventually came down a new age of confidence really did dawn. The removal of a major source of ideological and great power conflict liberated the UN to play the global security role its founders intended, and the response to Iraq’s invasion of Kuwait in 1991 was as swift, and comprehensive and rule-of-law based as anyone could possibly have wished. Multiple events since then, however, have brought all the old anxieties bubbling to the surface again: Somalia in 1993, Rwanda in 1994, Bosnia in 1995, Kosovo in 1999 – and above all the decision of the U.S., and its coalition allies, to go to war in Iraq in March 2003 in defiance not only of one or more threatened vetoes, but of the clear views of the great majority of the members of the Security Council.

The trouble is that there are three basic issues – as starkly revealed in the case of Iraq 2003, which raised all three of them - on which the language of the Charter, for all its groundbreaking significance, is either incomplete or silent, and on which there continues to be a disconcerting lack of international consensus. The issues are first, in what circumstances can unilateral action under the Article 51 self-defence clause be justified, and in particular to what extent can such force ever be used preventively; secondly, in what precise external aggression circumstances is the use of force justified under Chapter VII; and thirdly, when if ever can essentially internal aggression justify the use of force from outside a country. These ius ad bellum issues (going to the legitimacy of the decision to go to war) are not the only controversial issues relating to the use of force – for example the what many believed wholly disproportionate scale of the Israeli response to the Hezbollah border attack has raised again all the old issues about ius in bello (the law governing the conduct of war once under way) - but they are the ones that we as an international community absolutely have to get right if we are to have a rules-based international order worth the name.

Self-Defence.Article 51 of the UN Charter has always been understood as giving states considerable latitude in responding unilaterally in response to actual armed attack,, without prior reference to or endorsement from the Security Council, although the scale of the US response post 9/11 in Afghanistan, and particularly now Israel in Lebanon, have pushed to the limits what is regarded as acceptable. The more difficult issue is “anticipatory self-defence’: responding to an attack that has not yet actually occurred. Here it has long been accepted, both as a matter of customary international law predating Article 51 and international practice since, that notwithstanding the language of the article referring only to the right arising “if an armed attack occurs”, the right of self-defence extends beyond an actual attack to an imminently threatened one. Provided there is credible evidence of such an imminent threat, and the threatened state has no obvious alternative recourse available, there is no problem – and never has been – with that state, without first seeking Security Council approval, using military force ‘preemptively’. If an army is mobilising, its capability to cause damage clear, and its hostile intentions unequivocal, few have ever seriously suggested that you have to wait to be fired upon (other than, interestingly, the US delegates to San Francisco, who were the ones most insistent on the ‘armed attack’ language!). In this sense anticipatory self-defence has always been legal.

The problem arises with another kind of anticipatory self-defence: when the threat of attack is claimed to be real, but there is no credible reason to believe it is imminent, and where the issue accordingly is not preemption but prevention. The classic non-imminent threat situation is early stage acquisition of weapons of mass destruction by a state presumed to be hostile – the case that was made against Iraq by Israel in justifying its strike on the half-built Osirak reactor in 1981, and the case that the U.S. tried to make against Iraq before March 2003.

The difficulty here is not with the principle of military action against non-imminent threats as such. It is perfectly possible to imagine real threats which are not imminent – including the nightmare scenario combining rogue states, WMD and terrorists. The problem boils down to whether or not there is credible evidence of the reality of the threat in question (taking into account, as always, both capability and specific intent); whether the military attack response is the only reasonable one in all the circumstances; and – crucially – who makes the decision. The question is not whether preventive military action can ever be taken: it is whether military action in response to non-imminent threats can ever be taken unilaterally, without Security Council endorsement.

This is the question on which the U.S. has led with its chin, and generated a storm of continuing international controversy in the lead up to the 2003 Iraq war (even though, in the event, it did not formally rely on Article 51 but rather the so-called earlier Chapter VII authorization), with the key articulation of a new and much broader doctrine being published in the September 2002 National Security Strategy, which argued for a broadening of the “concept of imminent threat to the capabilities and objectives of today’s adversaries” and stating that “there is a compelling case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack”.

One might have thought that the Iraq experience would have put paid to the market for preventive war in Washington, but there is plenty of residual nostalgia for it, and it cannot be ruled out in the context of Iran’s nuclear program. The new 2006 edition of the National Security Strategy effectively repeats the mantras of four years earlier, saying that – at least in the context of a terrorist attack with WMD – and again fudging the important difference between preemption and prevention, that “to forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively in exercising our inherent right of self-defense.”

What I find more than a little disconcerting is how much of this agenda seems to have been bought not just by the right in the US, but by the liberal intelligentsia. Anne-Marie Slaughter, for example, went a long way out on a limb in her 2004 Foreign Affairs piece with Lee Feinstein on what she called ‘The Duty to Prevent’, arguing the case for early coercive against regimes apparently bent on acquiring WMD in a way that, I have suggested in reply4, focuses inappropriately as much on the character of regimes as their actual behaviour, insufficiently acknowledges the level of evidentiary proof required if military action is ever to be contemplated, and is far too ready to acknowledge the legitimacy of working outside the legitimizing framework of the Security Council. Again, for example, Ivo Daalder and James Steinberg argued in December 2005 in the LA Times that today’s threats are so different from those of 1945 that it is permissible to seek legitimization for preventive war from regional organizations, or the new ‘coalition of democratic states’, if the Security Council will not itself authorize force. But most troubling of all to me, and a great many others around the world, was the startling piece by William Perry and Ashton Carter, the highly respected Secretary and Assistant Secretary of Defense respectively in the Clinton Administration, in the Washington Post of 22 June 2006, just three months ago, arguing for a preemptive missile strike against the North Korean launchpad should Pyongyang move to test (as in fact it later did) its long-range Taepodong ballistic missile, on the basis that ‘intervening before mortal threats to U.S. security can develop is surely a prudent policy’.

All this makes it rather necessary to restate the case against preventive war being conducted outside the framework of explicit Security Council endorsement. Ironically, among those who have put the argument best has been Henry Kissinger, not normally a reluctant user of U.S. power, who wrote in a Washington Post column on 16 September 2002:

As the most powerful nation in the world, the United States has a special unilateral capacity to implement its convictions. But it also has a special obligation to justify its actions by principles that transcend the assertions of preponderant power. It cannot be in either the American national interest or the world's interest to develop principles that grant every nation an unfettered right of preemption against its own definition of threats to its security.

The biggest problem with extending the scope of unilateral self-defence action under Article 51 in the way that continues to be contemplated not only by the Bush administration but by a number of others well removed from it on the political spectrum, is that it utterly fails to acknowledge that what is sauce for the goose is sauce for the gander, legitimising the prospect of preventive strikes in any number of volatile regions, starting with the Middle East, South and East Asia. To undermine so comprehensively the norm of non-intervention on which any system of global order must be painstakingly built is to invite a slide into anarchy. We would be living in a world where the unilateral use of force would be the rule, not the exception.

But even short of doomsday scenarios of this kind, the wrong-headedness of carrying out, threatening or even just hinting at, unilateral preventive strikes is readily apparent. To the extent that the attack on Iraq can be characterised as such a strike, it has not done much to either improve human security in that country or advance the cause of a democratic greater Middle East. To the extent that North Korea was meant to be cowed by the prospect of such action, the effort seems to have been spectacularly counterproductive, generating a rush to acquire as fast as possible, as the best deterrent to such a strike, the very nuclear weapons whose potential acquisition was what prompted the unilateral sword-waving in the first place. Similar reasoning is obviously part of what is prompting Iran to resist termination of its suspect nuclear programs. Of course any serious challenge to U.S. dominance by anyone will be a long time coming, but history is replete with examples of over-exuberant military power eventually being countered by defensive alliances with aspirations of their own

More prosaically, if a threat is real but not imminent, and there is, by definition, time to address it, there is every reason to believe that with an appropriate policy strategy, mobilizing other international players as appropriate, inspiring rather than alienating those whose support is needed, that threat can be deterred or contained, resolved by persuasion or negotiation, or reduced by the socialisation of the actors concerned. Recognising the inherent horror and hugely uncertain consequences of going to war, statecraft has always been about avoiding war if security objectives can possibly be guaranteed in other ways. But as Arthur Schlesinger Jr has put it, President Bush has repudiated the strategy that won the Cold War, replacing “a policy that aimed at peace through the prevention of war by a policy aimed at peace through preventive war”.5

Cross-border Aggression and Chapter VII. If it is wrong to concede to states acting without Security Council the right to wage preventive war against potential cross-border aggression, the question becomes how confident are we that the Security Council itself can legally and will politically take the appropriate action? What criteria should be applied by the UNSC in determining whether a threat to peace and security across state borders justifies Chapter VII force to impose the will of the international community on an errant state (or sub-state) party - and can such force ever be used preventively?

When a state poses a threat to other states, or individuals outside its borders, Chapter VII of the UN Charter fully empowers the Security Council to take any coercive action at all, including ultimately military action, that it deems “necessary to maintain or restore international peace and security”. It doesn’t matter whether the threat involves a “threat to the peace, breach of the peace or act of aggression”; whether the threat is constituted by an actual or potential act of violence, or simply a challenge to the Council’s authority; or whether it is constituted by an act or an omission; or whether it is constituted by a state’s own actions or by non-state actors it harbours or supports; or whether it is occurring now, or in the imminent future or – and this is the critical point about preventive war - in the distant future.

While there is always the practical problem of ensuring that action follows decision, and what might be described as the Hotspur question in relation to the actual supply of authorised military resources (“I can call spirits from the vasty deep”… “But will they come?”),6 there is, in short, no doubt about the legal capacity of the Security Council to declare effectively anything it wants to a threat to international peace and security, and to authorise military action accordingly. That includes preventive war: what is forbidden to a state (unless a case of permissible self-defence is involved), or to a coalition of states, acting outside the Charter, is perfectly permissible if it takes place with Security Council endorsement.

But whether something is permissible is not the same as it being wise, and a huge remaining question – politically, if not legally - is how the unquestioned authority of the Council should be exercised, when States see their interests so differently, when some States exercise so much more influence than others – and when the Charter offers no detailed criteria, including even one of last resort: that before any military option is taken, all reasonable non-military options should be exhausted.

Iraq 2003 was of course the classic case of failure to agree here. The arguments made by the U.S. about the threat posed by Iraq’s WMD, and more particularly the need to act immediately against it without waiting for the weapons inspectors to finally report, were unpersuasive at the time, resulted in the Security Council being bypassed, ultimately proved false - and contributed to a rule-based international order only in the sense of demonstrating that the Security Council, while impotent, was at least principled. I believe that had clear criteria been on the table, going not just to threshold evidence of threat, and need for force to be a last resort, but also issues like ‘balance of consequences’ – whether more harm than good would be done by the invasion - there would have been at least a marginally better chance of this catastrophe being averted. I will come back again to the need for such criteria in the context of the third big use of force issue, to which I now turn.

Internal Threats.For a long time large-scale threats to human security occurring within the borders of a state were the orphan child of the international order. Articles 2(4) and 2(7) of the Charter between them were highly protective of state sovereignty, and competing human rights norms – not even those embodied in the Genocide Convention – not strong enough to override the presumption against coercive intervention in another state, when what was in issue was not what it was doing or threatening to other states, but what it was doing, or allowing to happen, to its own people.

It is difficult to overstate the extent to which the Westphalian system of sovereign independent states dominated the thinking of the UN’s founders, permeated the structure and processes of the institution they created, and has impacted on the thinking of the legions of new states which have joined the UN, first during decolonisation and then with the end of the Cold War: sovereignty thus hard won, and proudly enjoyed, is sovereignty not easily relinquished or compromised. But it is also difficult to overstate the extent to which now, in the aftermath of the catastrophes of the 1990s in Rwanda and the Balkans, there is diminished tolerance for states being immune from scrutiny when they are unwilling or unable to deal with large–scale, conscience-shocking violations of individual and group human rights occurring within their borders.

What has emerged to bridge this divide between two very different views of the world is the concept of ‘the responsibility to protect’, which had its birth in the work of the Canadian Government sponsored International Commission on Intervention and State Sovereignty on which Tom Weiss and I worked together. The idea, in a nutshell, is that sovereignty is as much about responsibility as the exercise of authority; that sovereign states do have the primary responsibility to protect their own people from serious harm; but that if they are unable or unwilling to exercise that responsibility it shifts to the wider international community; and that the international community’s responsibility in these circumstances, while it begins with prevention does extend, if all else fails to coercive military intervention. How that idea rapidly evolved is a fascinating piece of intellectual history - from gleam in a rather obscure commission’s eye in 2001 to something now accepted unanimously as a new emerging norm by the world’s heads of state and government assembled at the September 2005 Summit, endorsed in general terms by the Security Council in April 2006, and now beginning to be invoked in specific cases (as in the recent Resolution 1706 authorising the extension of a UN peacekeeping mission to Darfur).

But while the good news is that, after years of unproductive wrangling about ‘the right to intervene’ the international community is more or less now committed to the principle of the responsibility to protect (or ‘R2P’ as it has become familiarly known), the less good news in terms of its practical application is that a rearguard action continues to be fought against it in various quarters (much assisted, I’m afraid, by the way in which the R2P justification was – I think quite inappropriately - called in aid by the US, and particularly by the UK, when other justifications for the invasion of Iraq crumbled away), and it is not proving easy in particular cases as they arise – as now with Darfur – to translate a general perception of the applicability of the R2P into effective action, combining political will with the mobilisation of the right resources.

Of all the unfinished business in relation to R2P, the most significant for present purposes is the failure to agree, here as elsewhere, that a set of guidelines should be adopted by the Security Council identifying when it is, and is not, appropriate to go to war. I believe that such guidelines, even if non-binding in character, would be of great utility in clarifying the complex and sensitive issues that always arise when force is part of the equation, would place much more of a spotlight on all the issues that need to be addressed by policymakers and not just one or two of them, and while certainly not guaranteeing consensus in any given case as to the proper course to take, would improve the chances of this being achieved.

To better explain what I mean let me take the case of Darfur, and apply to the current situation there the set of guidelines first spelt out by the ICISS Commission, and subsequently refined in the report of the High Level Panel on Threats, Challenges and Change in 2004 and in turn embraced by the Secretary-General in his own report to the 2005 World Summit (but not adopted by it). Against a background of more than 200,000 already dead, and over 2 million displaced, as a result of the war so far, and the resistance of Khartoum to a new UN mission of over 20,000 personnel to replace the sadly under-resourced African Union mission trying to hold the line there, many people are beginning to ask whether or not this is a proper case for a non-consensual mission, with a UN-mandated mission if necessary shooting its way in (as is now agreed should have happened, but didn’t, for example in Rwanda). But is it such a case? My own view is that only a minority of the relevant criteria are satisfied, or likely to be in the foreseeable future, and that whether we like it or not, the only real option for the international community – if diplomacy continues to fail - will be the application of essentially non-military coercive measures. To go through them sequentially:

Criterion 1: Seriousness of Harm - Is the threatened harm to State or human security of a kind, and sufficiently clear and serious, to justify prima facie the use of military force? In the case of internal threats, does it involve genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law, actual or imminently apprehended? In my view, almost certain to be satisfied if the AU mission withdraws and the UN mission is unable to replace it. In the current tense environment, with the government building up its forces on the ground, incorporating the Janjaweed overtly in its military convoys, and publicly threatening to expel the only neutral force standing between it and civilian victims of the earlier phases of the war, a scenario of mass killings in chaotic circumstances could unfold in short order, combined with many more deaths in the camps from malnutrition and disease flowing from the inability of international relief agencies to maintain a presence.

Criterion 2: 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 motives may be in play? In my view satisfied. The international community has no other strategic interest or ulterior motive for intervening in Darfur: indeed, it would be hard to imagine a region of the world where there is less other motivation than protection of human suffering.

Criterion 3: Last Resort - Has every non-military option for meeting the threat in question been explored, with reasonable grounds for believing lesser measures will not succeed? In my view, not yet satisfied. More can be done short of full-scale armed intervention. Four arrows are still in the international community’s quiver -- ICC indictments (focusing on the future, with all sides being firmly warened that any future atrocities will unequivocally be the subject of ICC prosecutions); targeted sanctions against a range of senior government officials; wider economic sanctions, including measures to encourage disinvestment (not dissimilar to what the US has been doing vis-a-vis the Hamas government in Gaza, including pressure on European banks to cut their financing); and, as a less extreme military option than a full-scale ground exercise, a tough no-fly zone. Some of these options have been flagged in previous Security Council resolutions, but none seriously delivered.

Criterion 4: Proportional Means - Are the scale, duration and intensity of the planned military action the minimum necessary to secure the defined human protection objective? In my view, satisfied, in the sense of not being likely to be contentious. It can reasonably be presumed that any military intervention in would be scaled at the minimum necessary to prevent further large-scale and irreparable harm and the protection of civilians.

Criterion 5: Balance of consequences - 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? In my view, not satisfied. 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. There are, as I have indicated in discussing the last resort issue, a number of these available. My point for present purposes is simply to emphasise, particularly for those who continue to think that any embrace of R2P means committing oneself to multiple military interventions in highly problematic circumstances, that R2P is about much more than coercive ‘humanitarian intervention’. Shooting one’s way into a resisting country is at the extreme end of the R2P prevention-reaction spectrum, and only to be contemplated as a last resort, and when all five criteria of legitimacy are satisfied. And having those criteria on the table, understood and accepted as framing these debates, would do much, I believe to make for a more principled and less ad hoc, realpolitik-driven international order.

The Achievability of a Rule-Based International Order

There are those who will continue to argue fiercely that the whole approach I have taken here is completely wrong-headed, that it takes no account of the way the real world does work, and can always be expected to work, and that the idea of universal conformity to a rule-based international order – whatever might be possible for fisheries or telecommunications and the like, at least in the peace and security area, where inherently competitive national interests are so fundamentally involved – really is illusory, and will, until some so far unseen forms of human cooperation evolve, forever remain so.

This view can and usually does take fairly crude forms, but it also has its more sophisticated proponents, among them the international lawyer Michael Glennon, who has taken a particular cudgel to my collected contributions on this subject, both individually and as a member of the High Level Panel.7 His basic argument is that insufficient evidence is advanced to justify any of the claims of the kind I have made here about what are the presently applicable rules on using force; that it is wishful thinking to believe there is any likely utility in adding to such rules as there are purported new principles about responsibility to protect, and new guidelines spelling out criteria of legitimacy; and that the Security Council is not now and is never likely to be an appropriate global arbiter. Some quotes convey the flavour: ‘…there in fact exists no universal, absolute standard by which to assess the propriety of state conduct, at least none that has penetrated the consciousness of policymakers in pertinent state actors… the probability is high that at this point in history there is no solution for curbing the profligate use of force, interstate or intrastate: the current institutions do not work, and no practicable alternative can likely work… The Security Council cannot prevent unwanted uses of force, and nothing useful can be put in its place… what the design [of institutions like the Security Council] should look like must be a function of what the design can look like ”

What is involved here is basically an irreconcilable philosophical difference, and maybe an emotional one as well between someone who is optimistic about the ultimate utility of norm-setting and someone who is not. Professor Glennon is of the school which essentially defines international law very narrowly, as being made up of binding rules which are in some measure enforceable, and that leads him to a rather bleak view about the utility of any efforts to change behaviour which are not likely to be fully observed. My view, shared by many others, is that international law is at best only as to about one-third of its content binding and enforceable, and as to the rest essentially aspirational – a set of norms which are often honoured in the breach, but nonetheless have weight and salience, and that it’s worth constantly trying to raise sights, rather than lower them to the lowest common denominator of current acceptability

The real international world which we inhabit is one in which those of us with any idealistic bones at all in our makeup can’t help but be frustrated. For all the advances we have made in the last few decades, and the last few years – and I did spell a number of them out at the beginning, now I fear a rather long time ago, of this lecture - we are a long way short of having, in the most critical peace and security area, the kind of rule-based international order we would ideally like to have. But if we take seriously, as I believe we must, the need to do everything we can to avert the suffering through deadly conflict of millions of our fellow human beings now and in the future, we simply have to believe that such an order is not illusory, but ultimately achievable - and go on working like hell, whatever the frustrations, to make that belief a reality.

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1 Charles Kurzman and Neil Engelhart, ‘Welcome to World Peace’, Christian Science Monitor, 30 August 2006

2 See James Traub, ‘The World According to China’, New York Times, 3 September

3 I have developed these points in the same or similar language in a number of earlier addresses and published article, notably the 2004 Wesson Lecture at Oxford, published as When is it Right to Fight?, 46 Survival 59 (August 2004).

4 Gareth Evans, ‘Uneasy Bedfellows: ‘The Responsibility to Protect’ and Feinstein-Slaughter’s ‘Duty to Prevent’, American Society of International Law Conference, Washington DC, 1 April 2004, accessible at www.crisisgroup.org

5 “Eyeless in Gaza”, New York Review of Books, 23 October 2003

6 Shakespeare, Henry IV Pt I, Glendower and Hotspur (3.1)

7 See Michael J. Glennon, ‘Platonism, Adaptivism and Illusion in UN Reform’, 6 Chicago Journal of International Law 613 (Winter 2006), also ‘How International Rules Die’, 93 Georgetown Law Journal 939 (March 2005).