Preventing Mass Atrocities: Making 'Never Again' a Reality

Lecture by Gareth Evans, President of the International Crisis Group and Co-Chair of International Commission on Intervention and State Sovereignty, in Joan B. Kroc Distinguished Lecture Series, Institute for Peace and Justice, University of San Diego, 12 April 2007

It is a pleasure and a privilege for me to have been invited to participate in this lecture series, not least since I find myself following in the footsteps of people of such extraordinary calibre and global reputation as Richard Goldstone, Mary Robinson, Hanan Ashrawi, Lloyd Axworthy and Shirin Ebadi. After just a few short years of existence, the Joan B. Kroc Institute for Peace and Justice really is now on the map, not only for its fantastic building and facilities – better than I’ve seen just about anywhere in the world - but as a centre of excellence for policy-oriented debate, dialogue, teaching, outreach and practical policy action in the cause of global peace.

And that is a tribute to the quality of the Institute’s staff, who run these outstanding programs so well (and who, particularly Diana Kutlow and Erika Lopez, have looked after me so admirably during my visit here) ; to the breadth of vision of the University of San Diego administration, which has understood very clearly – in a way that many others may not have – how an institute like this, and a school of the kind now being put in place, can add real lustre to a university’s national and international stature; and above all to Joan B. Kroc herself, whose extraordinary generosity made the whole thing possible.

It is one of my abiding sorrows that I didn’t meet Joan Kroc before she died four years ago. And that’s not just because someone prepared to spend during her lifetime and beyond something like $100 million on supporting peace programs is the kind of person presidents of organisations like mine dream of getting to know! It’s because she was obviously such a wonderful, larger than life, character. Your founding director Joyce Neu told me in a message the other day that had ‘Saint Joan’ been still with us, she would have been sitting here in the front row, a model of panache and elegance, maybe not able to follow the lecture very closely, because she became very hard of hearing in her last years, but every now and again winking broadly at the speaker! Of all the distractions I’ve weathered over the years, I think that would probably have been the most disconcerting – knowing that to do the polite thing and wink right back, as I certainly would have been minded to do, would have the rest of the audience thinking I had lost my marbles.

The topic about which I have been asked to talk to you this evening is one on which I sometimes think we have all lost our marbles, or at least – what may or may not be the same thing – our sense of common humanity, and collective morality.

‘Never again’ we said after the Holocaust. And after the Cambodian genocide in the 1970. And then again after the Rwanda genocide in 1994. And then, just a year later, after the Srbrenica massacre in Bosnia. And now we’re asking ourselves yet again, in the face of more mass killing and dying in Darfur, whether we really are ever going to be capable, as an international community, of stopping nation-states murdering their own people, or allowing them to be murdered by others within their borders. Since 2003, in this region of Sudan, more than 200,000 have died from outright violence or war-related disease and malnutrition, well over 2 million have been displaced, peacekeeping efforts have been manifestly inadequate, peace negotiations have gone nowhere, humanitarian relief is faltering, the conflict is spilling over into neighbouring countries, and the overall situation remains desolate. How many more times will we look back wondering, with varying degrees of incomprehension, horror, anger and shame, how we could have let it all happen?

The truth of the matter is that it has taken the world an insanely long time to come to terms with the idea that there is something fundamentally and intolerably wrong about states killing or forcibly displacing large numbers of their own citizens, or standing by when others do so.

The Power of a Bad Idea

For centuries, going all the way back to the emergence of the modern system of sovereign states in the 1648 Treaty of Westphalia, the view has prevailed that, to put it bluntly, sovereignty - the possession by a country of the recognised trappings of independent statehood - is a license to kill: what happens within state borders, however grotesque and morally indefensible, is nobody else’s business. In the history of ideas, there have been some very bad ones indeed, and few more destructive over the centuries than this.

One would have thought Hitler’s Holocaust would have put paid to that notion once and for all. Certainly major gains were made. Individual and group human rights were recognized in the UN Charter and, more grandly and explicitly, in the Universal Declaration. And with the drafting of the Charter of the Charter of the Nuremberg Tribunal in 1945 came the recognition in international law of the concept of ‘crimes against humanity’, which could be committed by a government against its own people, and not necessarily just during wartime.

But running alongside all this was a continued very clear recognition of the traditional view of state sovereignty. The language of the 1945 UN Charter says in Article 2(7) that “Nothing should authorise intervention in matters essentially within the domestic jurisdiction of any State”. The UN founders were overwhelmingly preoccupied with the problem of states waging war against each other, and took unprecedented steps to limit their freedom of action in that respect. But, notwithstanding all the genocidal horrors inflicted during the Second World War, they showed no particular interest in the question of what constraints might be imposed on how states dealt with their own subjects.

The state of mind that even massive atrocity crimes like those of the Cambodian killing fields were not the rest of the world’s business prevailed throughout the UN’s first half-century of existence: Vietnam’s invasion, which stopped the Khmer Rouge in its tracks, was universally attacked, not applauded. The traditional view of sovereignty, as enabling absolute control of everything internal and demanding immunity from external intervention, was much reinforced by the large increase in UN membership during decolonisation era – the states who joined were all newly proud of their identity, conscious in many cases of their fragility, and generally saw the non-intervention norm as one of their few defences against threats and pressures from more powerful international actors seeking to promote their own economic and political interests.

Not even the signing of the Genocide Convention of 1948 made much difference, despite its apparently explicit override of the non-intervention principle for the most extreme of all crimes against humanity. The coining of the word ‘genocide’ by the legal scholar Raphael Lemkin in 1944, yoking together the Greek noun for family, tribe or race and the Latin verb for massacre, was itself an important development in the history of ideas, capturing some of the momentous quality of actions that are aimed not just at destroying individuals, but whole national, racial, ethnic or religious groups - targeting, as Lemkin put it, the essential foundations of their life as such groups.

But it was almost as if, with the signing of the Genocide Convention, the task of addressing man-made atrocities was seen as complete: it took the major powers years (in the case of the US 40 years) to ratify it, it was rarely invoked, and has never been effectively applied either to prevent or punish actual atrocities. The US Government’s willingness to embrace the ‘g’ word in the case of Darfur did not make a cent’s worth of difference when it came to taking more robust action in response. And the long-awaited test case in the International Court of Justice, Bosnia v. Serbia, decided recently that Serbia had not itself committed genocide in Srbrenica – though it did have some culpability for failing to prevent it. This showed all too clearly what lawyers have long feared: that the legal definition of genocide in the Convention, requiring in particular very particular kinds of intent toward a very particular kinds of groups to be fully proved, is just so narrow in scope that there are very few kinds of behaviour by either individuals or governments that will be caught by it.

With the arrival of the 1990s, and the end of the Cold War, the prevailing complacent assumptions about non-intervention did at last come under challenge, as never before. The quintessential peace and security problem became not interstate war, but civil war and internal violence perpetrated on a massive scale. With the break-up of various Cold War state structures, most obviously in Yugoslavia, and the removal of some superpower constraints, conscience-shocking situations repeatedly arose. But old habits of non-intervention died very hard. Even when situations cried out for some kind of response, and the international community did react through the UN, it was too often erratically, incompletely or counter-productively, as in the debacle of Somalia in 1993, the catastrophe of Rwanda in 1994, and the almost unbelievable default in Srebrenica just a year later, in 1995. Then came Kosovo in 1999, when the international community did in fact intervene as it probably should have, but did so without the authority of the Security Council in the face of a threatened veto by Russia, raising anxious questions about the integrity of the whole international security system.

In response to these emerging situations a powerful new idea did emerge, and dominated international discourse through the 1990s. This was the concept, coined by the founder of Medicines Sans Frontier Bernard Kouchner, of ‘droit d’ingerence’ – the ‘right to intervene’, or, more fully, the ‘right of humanitarian intervention’. The trouble with this language is that, while it was from many perspectives a noble and effective rallying cry, around the world it enraged as many as it inspired. Throughout the decade arguments about the ‘the right to intervene’ – mostly from the global North – were met by equally vehemently claims, mostly from the global South, about the primacy and continued resonance of the concept of national sovereignty. Battle lines were drawn, trenches were dug, and verbal missiles flew: the debate was intense and very bitter, and the1990s finished with it utterly unresolved in the UN or anywhere else.

UN Secretary-General Kofi Annan at one stage made his own effort to resolve the conceptual impasse at the heart of this debate by arguing that national sovereignty had to be weighed and balanced in these cases against individual sovereignty, as recognised in the international human rights instruments. But this fell on deaf ears, being seen not so much as resolving the dilemma of intervention but restating it. In his report to the General Assembly in 2000, the S-G brought the issue to a very public head, saying in language that was both moving and agitated, and which resonates to this day:

If humanitarian intervention is indeed an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Sebrenica, to gross and systematic violations of human rights?

The Birth of the Responsibility to Protect

The task of meeting this challenge fell, in the event, to International Commission on Intervention and State Sovereignty (ICISS), sponsored by the Canadian Government – more particularly its far-sighted then foreign minister Lloyd Axworthy, one of my predecessors in this Distinguished Lecture Series. I had the privilege of co-chairing the Commission with the Algerian diplomat and veteran UN Africa adviser Mohamed Sahnoun, and we had a great team to work with – including as the U.S. representative Lee Hamilton (without whom no panel of the great and good would these days ever be complete). We presented our report, entitled The Responsibility to Protect, at the end of 2001.

The objectives of the Commission, as we defined them to ourselves from the outset, were essentially threefold: to produce a guide to action on responses by the international community to internal, man-made, human-rights violating catastrophe, which would be intellectually credible and satisfying, not profoundly offending either the lawyers or philosophers; politically credible enough not to be rejected out of hand, as a framework for action, by either North or South, the permanent five members of the Security Council or any other major international constituency; and compelling enough in its basic message to be able in practice to actually motivate action and mobilise support when a situation demanding such a response arose. In the event, we made, I think it is fair to say, four main contributions to the international policy debate which have been resonating ever since.

The first, and perhaps ultimately the politically most useful, was to invent a new way of talking about ‘humanitarian intervention’. We sought to turn the whole weary debate about the ‘right to intervene’ on its head, and to re-characterise it not as an argument about the ‘right’ of states to anything, but rather about their ‘responsibility’ – one to protect people at grave risk: the relevant perspective, we argued, was not that of prospective interveners but those needing support. The searchlight was swung back where it should always be: on the need to protect communities from mass killing and ethnic cleansing, women from systematic rape and children from starvation. The Commission’s hope was - and so far, broadly, our experience has been - that using ‘responsibility to protect’ rather than ‘right to intervene’ language would enable entrenched opponents to find new ground on which to more constructively engage.

We very much had in mind the power of new ideas, or old ideas newly expressed, to actually change the behaviour of key policy actors. And a model we very much had in mind in this respect was the Brundtland Commission, which a few years earlier had introduced the concept of ‘sustainable development’ to bridge the huge gap which then existed between developers and environmentalists. With a new script, the actors have to change their lines, and think afresh about what the real issues in the play actually are.

The second contribution of the Commission, linked with the first and again conceptually significant, was to insist upon a new way of talking about sovereignty: we argued, building on an earlier formulation by Francis Deng, that its essence should now be seen not as ‘control’, as in the centuries old Westphalian tradition, but, again, as ‘responsibility’. The starting point is that any state has the primary responsibility to protect the individuals within it. But that is not the finishing point: where the state fails in that responsibility, through either incapacity or ill-will, a secondary responsibility to protect falls on the wider international community. That, in a nutshell, is the core of the responsibility to protect idea, or - in this age of acronymphomania - ‘R2P’as we are all now calling it for short.

The third contribution of the Commission was to make it clear that the ‘responsibility to protect’ was about much more than intervention, and in particular military intervention. It extends to a whole continuum of obligations: the responsibility to prevent these situations arising (most obvious and important of all in an ideal world, but most consistently neglected in the real one); the responsibility to react to them when they did, with a whole graduated menu of responses, from the persuasive to the coercive; and the responsibility to rebuild after any intrusive intervention.

The remaining contribution of the Commission was to come up with guidelines for when the most extreme form of coercive reaction, military action, would be appropriate. That’s when the rubber really hits the road if you want a morality-driven policy to have take-up in the real world – if you want idealism to be realistic. The first criterion was obviously legality, and here we saw our task as not to try and find alternatives to the clear legal authority of the Security Council, but rather to make it work better, so there was less chance of it being bypassed.

That was followed by five criteria of legitimacy, designed as a set of benchmarks which, while they might not guarantee consensus in any particular case, would hopefully make its achievement much more likely. Although I have to confess I didn’t quite have in mind this lecture at the University of San Diego when we crafted them, these five criteria would be very familiar to an audience of catholic intellectuals because they were unashamedly based on ‘ just war’ principles: in short, the seriousness of the harm being threatened; the motivation or primary purpose of the proposed military action; whether there were reasonably available peaceful alternatives; the proportionality of the response; and the balance of consequences – whether more good than harm would be done.

The Evolution of an International Norm

It is one thing to develop a concept like the responsibility to protect, but quite another to get any policy maker to take any notice of it. The most interesting thing about the Responsibility to Protect report is the way its central theme has continued to gain traction internationally, even though it was almost suffocated at birth by being published in December 2001, in the immediate aftermath of 9/11, and by the massive international preoccupation with terrorism, rather than internal human rights catastrophes, which then began.

In just five short years, a remarkably brief time in the history of ideas, the responsibility to protect concept evolved from a gleam in an international commission’s eye, to what now has the pedigree to be described as a broadly accepted international norm, and one with the potential to evolve further into a rule of customary international law. On any view that’s an encouraging story, and we ought to be encouraged by it.

The concept was first seriously embraced in the doctrine of the newly emerging African Union, and over the next two to three years it won quite a constituency among academic commentators and international lawyers (a not unimportant constituency, given that international law is the rather odd beast that it is – capable of evolving through practice and commentary as well as through formal treaty instruments).

But the big step forward came with the UN 60th Anniversary World Summit in September 2005, which followed a major preparatory effort involving the report of the 2004 High Level Panel on new security threats (of which I was, rather conveniently, a member) which fed in turn into a major report by the Secretary-General himself. Both these reports emphatically embraced the responsibility to protect concept, and the Summit Outcome Document, unanimously agreed by the more than 150 heads of state and government present and meeting as the UN General Assembly, unambiguously picked up their core recommendations. Its language, though a little wordier and woollier than it needed to be, was quite clear-cut in picking up the core theme of the Commission report. The key words were these:

Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity… We accept that responsibility and will act in accordance with it…

The international community, through the United Nations, also has the responsibility 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 and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

That this endorsement happened was anything but inevitable. Not much else of any significance was agreed by the Summit, despite all the preparatory build-up and high expectations. A fierce rearguard action was fought almost to the last by a small group of developing countries, joined by Russia, who basically refused to concede any kind of limitation on the full and untrammelled exercise of state sovereignty, however irresponsible that exercise might be. What carried the day in the end was not so much consistent support from the EU and U.S. – support which after the invasion of Iraq in 2003 was not particularly helpful, it has to be acknowledged, when it came to meeting these familiar sovereignty concerns. The support that mattered, rather, was persistent advocacy by sub-Saharan African countries, led by South Africa; a clear - and historically quite significant - embrace of limited-sovereignty principles by the key Latin American countries; and some very effective last minute personal diplomacy with major wavering-country leaders by Canadian Prime Minister Paul Martin.

A further important conceptual development has occurred since the September 2005 Summit: the adoption by the Security Council in April last year of a thematic resolution on the Protection of Civilians in Armed Conflict which contains, in an operative paragraph, an express reaffirmation of the World Summit conclusions relating to the responsibility to protect. And we have now begun to see that resolution in turn now being invoked in subsequent specific situations, as with Resolution 1706 of 31 August 2006 on Darfur. A General Assembly resolution may be helpful, as the World Summit’s unquestionably was, in identifying relevant principles, but the Security Council is the institution that matters when it comes to executive action. And at least a toehold there has now been carved.

Unfinished Business

But this is just about where the good news ends. We simply cannot be at all confident that the world will respond quickly, effectively and appropriately to new human catastrophes as they arise, as the current case of Darfur is all too unhappily demonstrating. The responsibility to protect has become a potentially powerful idea, but it will only be really powerful if it is implemented in practice. There is much unfinished business to attend to, falling from my perspective into four main categories.

Holding the Line against Backsliding. We cannot, unfortunately, assume that the bridgehead achieved at the World Summit and in subsequent Security Council resolutions will necessarily hold. Some member states – particularly in Asia – were very reluctant to accept this part of the Summit outcome document, and continue to fight a rearguard action against it. They have been much aided in this respect by R2P’s false friends. Occasional efforts by defenders of the 2003 invasion of Iraq, notably the UK government, to paint it as justified by R2P principles (as other defences in terms of possession of weapons of mass destruction or support for international terrorism crumbled away) have not been at all analytically persuasive. But they have succeeded admirably in reinforcing the arguments of R2P opponents that any concession as to the limits of state sovereignty would create an excuse that would be exploited all too willingly by neo-colonialists and neo-imperialists keen to return to their bad old interventionist habits of decades past.

One sign of possible difficulties ahead was the rejection by the Security Council in January this year – with vetoes from China and Russia (cast together for the first time since 1972), and South Africa voting against – of a resolution condemning Myanmar’s appalling human rights record. The argument of the opponents was that the government’s behaviour was not “a threat to international peace”, and thus outside the Security Council’s jurisdiction. It is certainly arguable that Myanmar’s human rights violations, while deplorable, have been not of the same character or scale of those in Darfur, or Kosovo or Srebrenica or Rwanda before it, and as such do not squarely raise R2P principles.

But it is disturbing nonetheless to see prevailing a narrow view of the scope of the Security Council’s authority under the UN Charter, and the parallel return to favour of a broader view of the protection from international scrutiny and censure conferred by state sovereignty. As the retired archbishop of Capetown, Desmond Tutu, put it: “If others are using the arguments we are using today when we asked them for their support against apartheid, we might still have been unfree.” Those of us concerned to consolidate R2P as a universally accepted international norm – and one legitimising close attention by the Security Council to the behaviour towards their own people of a number of deeply unsavoury regimes ¬– will have to stay on our toes for a good while yet.

Adopting Guidelines for the Use of Military Force. The Canadian Commission recognized that the issue of when it was right to fight – to use the most extreme of the options available to react to an R2P situation - had to be specifically addressed if the idealism of our concept of international responsibility was to be realistically applicable in practice. We accordingly identified, as I have already mentioned, a set of prudential criteria in this respect which we argued should be adopted by the Security Council. These were, again, the seriousness of the harm being threatened (which would need to involve large scale loss of life or ethnic cleansing to prima facie justify something as extreme as military action); the motivation or primary purpose of the proposed military action (whether it was primarily to halt or avert the threat in question, or had some other main objective); whether there were reasonably available peaceful alternatives; the proportionality of the response; and, not least, the balance of consequences – whether overall more good than harm would be done by a military invasion.

These recommendations were subsequently embraced both by the High Level Panel and the Secretary-General in his own report to the 2005 World Summit - but not adopted by it, and they remain in limbo. Of course no criteria of the kind the Commission argued for, even if agreed as guidelines by the Security Council, will ever end argument on how they should be applied in particular instances, for example Darfur right now (where my own organisation, Crisis Group, has in fact taken the view when it comes to coercive military intervention, at least right now the balance of consequences test argues against this, and that the real need is for coercive economic pressure to be applied). But it is hard to believe these criteria would not be more helpful than the present totally ad hoc system in focusing attention on the relevant issues, revealing weaknesses in argument, and generally encouraging consensus.

Building Available Capacity. If R2P is not to remain more theoretical than real, we must somehow solve the problem of capacity, ensuring that the right civilian and, as necessary, military resources are always there in the right amounts and with the appropriate capability. And that means having readily available a set of responses that are somewhere between, as Lee Feinstein puts it in a recent Council of Foreign Relations paper, “the stark options of Doing Nothing and Sending in the Marines.”

We need stronger early warning coordination and response machinery at the centre - with the UN Secretary General having a person of real international stature, working full time and with appropriate support staff, reporting to him as Special Adviser on the Prevention of Genocide and other Mass Atrocities.

We need effective diplomatic capacity ready and available to negotiate and mediate those situations which are capable of being stopped by effective early intervention of this kind.

We need a repertoire of carefully thought–through sanctions measures, with an effective, professionally resourced, mechanism ready to be put in place immediately to monitor the application and effectiveness of those sanctions.

We need a full range of civilian capabilities, especially effective policing, on permanent standby, with the capacity to be immediately deployed.

And we do also need effective preparedness to mount military operations for civilian protection purposes - with the consent if at all possible of the government in question (as was the case in East Timor, for example, and has been the case with the limited forces so far sent to Darfur), but in really extreme cases, if there is no other way of protecting the people in question from slaughter and ethnic cleansing, without that consent.

The experience of the current AU mission in Darfur is a classic demonstration of the problem of capacity - too few troops, too poorly equipped, and too immobile to perform effectively even the limited civilian protection task required by their present mandate. The UN is currently feeling desperately overstretched, with over 80,000 military and 15,000 civilian personnel deployed worldwide, but with the world’s armed services currently absorbing some 20 million men and women in uniform (with another 50 million reservists, and 11 million paramilitaries), it hardly seems beyond the wit of man to work out a way of making some of that capacity available when and where it’s needed to prevent and react to man-made catastrophe.

Another crucial practical operational issue is to address the question, up until now almost completely neglected by the world’s militaries, of developing detailed concepts of these R2P/civilian protection operations, which involve neither traditional war-fighting (where the object is not to stop violence as such, but to defeat an enemy) and peacekeeping operations (which although these days usually involving much more than the traditional passive monitoring, have still not come to grips with the kind of responses needed to cope with the threat or reality of atrocity crimes). It’s not just a matter of force configuration, but of developing new doctrine, and new kinds of rules of engagement, and new kinds of training.

Generating the Political Will to Act. As always, this is the biggest and hardest piece of unfinished business. But we have to recognise that finding the necessary political will to do anything hard, or expensive, or politically sensitive, or seen as not directly relevant to national interests, is just a given in public affairs, domestically or internationally: its absence should not be a matter for lamentation, but mobilization. Political will is not hiding in a cupboard or under a stone somewhere waiting to be discovered: it has to be painstakingly built.

All of us have a role in this respect, not only those occupying the commanding heights of policymaking and decision making, but academics and students, and NGOs and ordinary members of the community of the kind gathered here this evening. It is a matter of not just top-down effort – with key officials in key governments, and those who can influence them directly (as hopefully we in Crisis Group can) making the effort to persuade and mobilise their peers in the international community to take the necessary action in the UN Security Council and elsewhere. It’s also a matter of bottom-up mobilisation: making the voices of ordinary concerned citizens heard in the corridors of power.

At any level, the key to mobilizing the necessary political will from all the necessary policy actors – and there are a large cast of them, both at the national government and intergovernmental levels - is partly, of course, to have good organization and good lobbying techniques and good contacts. But above all it is to have good arguments, intelligently and energetically advanced. Those arguments may be party interest arguments designed to consolidate a government’s vocal domestic base (always an important element in the Bush Administration’s interest in Sudan, such as it has been); national interest arguments (much easier to make now in relation to ‘quarrels in far away countries between people of whom we know nothing’, to recall that famously dismissive language of the British Prime Minister Neville Chamberlain at the time of Munich in the 1930s, because of what we do know now about the capacity of failed states, in this globalised world, to be a source of havoc for others); financial arguments (in terms of a million dollars worth of preventive action now saving a billion dollars worth of military intervention later); or even moral arguments (given that however base politicians’ real motives may be, they always like to be seen as acting from higher ones).

We can, if we need to, always justify making R2P a reality on hard-headed, practical, national interest grounds: states that can’t or wont stop internal atrocity crimes are the kind of rogue states, or failed or failing states, that can’t or wont stop terrorism, weapons proliferation, drug and people trafficking, the spread of health pandemics and other global risks.

But at the end of the day the case for R2P rests simply on our common humanity: the impossibility of ignoring the cries of pain and distress of our fellow human beings. For any of us in and around the international community - from individuals to NGOs to national governments to international organizations - to yet again ignore that distress and agony, and to once again make ‘never again’ a cry that rings totally emptily, is to diminish that common humanity to the point of despair. We should be united in our determination to not let that happen, and there is no greater or nobler cause on which any of us could be embarked.