Crimes Against Humanity and the Responsibility to Protect

Address by Gareth Evans, President, International Crisis Group, to Crimes Against Humanity Initiative, Hague Intersessional Experts Meeting Dinner, The Hague, 11 June 2009.

I

Mobilising an effective international response to the scourge of crimes against humanity is, for those of us in the world of policy and ideas who spend a lot of our time trying to do just that, nearly always a matter of more than just abstract, intellectual commitment. I have found that for the great majority of us that commitment has welled up from some personal experience that has touched us, individually, very deeply. For many that will be bound to be scarifying family memories of the Holocaust; for others the experience of personal loss or closely knowing survivors from Rwanda or Srebrenica or any of the other mass atrocity scenes of more recent decades; for others still, perhaps, the awful sense that they could have done more, in their past official lives, to generate the kind of international response that these situations required.

For me it was my visit to Cambodia in the late 1960s. I was a young Australian making my first trip to Europe, to take up a scholarship in Oxford. Inexhaustibly hungry for experience, like so many of my compatriots before and since, I spent six months wending my way by plane and overland through a dozen countries in Asia, and a few more in Africa and the Middle East as well. And in every one of them, I spent many hours and days on student campuses and in student hangouts, and in hard-class cross-country trains and ramshackle rural buses, getting to know in the process—usually fleetingly but quite often enduringly, in friendships that have lasted to this day—scores of some of the liveliest and brightest people of their generation.

In the years that followed, I have often come across Indonesians, Singaporeans, Malaysians, Thais, Vietnamese, Indians, Pakistanis, and others whom I either met on the road on that trip, or who were there at the time and had a store of common experiences to exchange. But among all the countries in Asia I visited then, there is just one, Cambodia, from which I never again, in later years, saw any of those students whom I had met and befriended, or anyone exactly like them—not one of those kids with whom I drank beer, ate noodles, and careered up and down the dusty road from Phnom Penh to Siem Reap in child-, chicken-, and pig-scattering share taxis.

The reason, I am sadly certain, is that every last one of them died a few years later under Pol Pot’s murderous genocidal regime—either targeted for execution in the killing fields as a middle-class intellectual enemy of the state or dying, as more than a million did, from starvation and disease after forced displacement to labor in the countryside. The knowledge, and the memory, of what must have happened to those young men and women is something that haunts me to this day.

That memory certainly was a core motivation during the long and grueling years in the late 1980s and early 1990s that I worked as Australian Foreign Minister, along with my Southeast Asian, Chinese, American, and UN colleagues, to find and implement a sustainable basis for peace in Cambodia. It was a recurring motif as I watched, impotently and from a distance, the tragic events in Central Africa and the Balkans work themselves out through the mid- to late 1990s.

It was what made me accept with alacrity the offer of the Canadian government in 2000 to jointly lead a distinguished international commission charged with the task of trying to find, once and for all, a conceptual and practical answer that would unite, rather than continuing to divide, the international community in preventing and responding to mass atrocity crimes, a task that we I think we in large measure accomplished by introducing and elaborating the concept of ‘the responsibility to protect’, the core elements of which are too well known to this audience for me to need to spell them out in detail: that the primary responsibility for protecting its people from atrocity crimes is that of the sovereign state itself; other states have a responsibility to assist it to do so; but if, as a result of either incapacity or ill-will, a state is manifestly failing to give that protection, the responsibility to take appropriate action – which might in an extreme case involve the use of coercive military force – shifts to the wider international community.

It has what kept me engaged ever since - through membership of UN panels, writing a book and constant advocacy around the world -- in the even bigger task of winning and consolidating genuine international acceptance and recognition of this concept as a new global norm and, even more importantly, achieving its effective application in practice as new conscience-shocking situations continue to arise.

And it is what makes me intensely committed to the great enterprise on which this panel of experts is now engaged, on the initiative of the Harris Institute at the Washington University School of Law under the admiral leadership of Professor Leila Sadat, to draft and secure the ultimate adoption of a new Convention on Crimes Against Humanity, to fill a gap which has all too obviously become apparent in the array of legal instruments available to deal with atrocity crimes, notwithstanding the emergence of the International Criminal Court -- not least the need for national courts around the world to have clear-cut jurisdiction to deal with these cases, and for there to be in place mechanisms to enable effective international cooperation in the investigation and punishment of perpetrators.

I congratulate Leila Sadat, Cherif Bassiouni, Richard Goldstone and the other distinguished members of the Steering Committee for this project, and all those other experts who have contributed so constructively and creatively to the enterprise so far, and have every confidence that it will bear real fruit.

II

The beginning of wisdom for me on this subject was the realisation, very early on, that for all its compelling general moral authority the Genocide Convention had absolutely no legal application to the killing fields of Cambodia, which nearly everyone still thinks of as the worst genocide of modern times. Because those doing the killing and beating and expelling were of exactly the same nationality, ethnicity, race and religion as those they were victimising – and their motives were political, ideological and class-based rather than having anything to with the characteristics described in the Genocide Convention - the necessary elements of specific intent required for its application were simply not there.

And for all the well-intentioned attempts that have been made many times since – most obviously in Darfur – to try to argue that the “g” word, properly understood, does have application to a much wider range of crimes against humanity, and remains the best linguistic vehicle for energising mass support and high-level governmental support for effective action in response to newly emerging atrocity situations, the had truth is that this approach is a lost cause. Lawyers remain lawyers, and there will always be good and compelling legal arguments why the Genocide Convention just doesn’t reach many of the cases we morally want it to – resulting in propaganda victories again and again for those who least deserve to have them as claims or charges are reduced by commissions or courts from genocide to ‘only’ crimes against humanity.

Rhetorically and politically it has always made more sense, following David Scheffer, to make “atrocity crimes” or “mass atrocity crimes” the dominant working concept, rather than becoming caught in the technical cul de sacs of defining the difference between genocide, crimes against humanity and war crimes, and trying to explain where ethnic cleansing – not a clearly defined crime at all -- fits into the other three.

So now is it time, when the debate does have to turn to legal remedies, to make ‘crimes against humanity’ the dominant, resonating legal concept, the centrepiece of the argument in the media, and among policymakers, and not just a kind of afterthought category -- what one is reduced to when genocide for one technical reason or another is ruled out, or when one has to sweep up some smaller bits and pieces.

‘Crimes against humanity’ is broad enough conceptually to embrace certainly genocide and ethnic cleansing (if not war crimes, which we will continue to have to refer to separately, but that does not seem a problem). It’s a concept with an intellectual and international law pedigree going back a century. And linguistically, the phrase ‘crimes against humanity’ is surely rich and powerful enough for it to carry the moral and emotional weight we want it to. Quite apart from all the good technical reasons for having a new Crimes Against Humanity Convention, the campaign to adopt it should put the concept of crimes against humanity right back on the central pedestal where it belongs.

III

I see this effort marching in lockstep with the continuing effort to entrench and operationalise the new norm of the responsibility to protect. They are wholly complementary exercises, in essence the legal and political faces of the same coin. Persuading the UN General Assembly to endorse the responsibility to protect principle, as was achieved at the 2005 World Summit, was all about winning acceptance for the core idea that crimes against humanity and other mass atrocity crimes were everybody’s business, not – as they had been for centuries, and even for the first six decades of the UN’s existence, nobody’s business.

Promoting the language of ‘the responsibility to protect’, rather than ‘the right to intervene’ which had so hopelessly divided the global north and south throughout the 1990s, was all about creating the conditions where – when another Cambodia, or Rwanda or Bosnia or Kosovo came along, as it surely would – the reflex international response would be not to retreat behind Article 2(7) of the Charter and the pretence that this was somehow a matter ‘essentially within the domestic jurisdiction’ of the state in question, but a consensus response that something had to be done, with the only argument being what and how.

For all the bumps and grinds and reverses along the way, and there have been many, I remain personally confident that the consolidation of the responsibility to protect norm, as the overall framing principle for international debate on this subject, and the basic guide to appropriate action, is on course.

There remain some conceptual challenges – ensuring that the scope and limits of the doctrine are universally understood, that it is seen to be not about conflict generally or human rights generally or, even more grandly and broadly, human security generally, but about a narrow subset of extreme cases, involving the commission – or likely commission -- of mass atrocity crimes, with crimes against humanity at the core. Looked at this way there are probably no more than ten or fifteen cases at any given time where it is appropriate for the political and policy debate to be conducted in responsibility to protect terms – because large scale atrocity crimes are being committed, seem imminently about to be committed, or are on a path to being committed in the reasonably near term if appropriate remedial action is not taken, by the state itself or others assisting it. By contrast, there are likely to be 70 or 100 or more country or regional situations where at any given time it is appropriate to talk about conflict prevention or resolution strategies, responses to human rights abuses of various kinds, or reactions to other kinds of human security concerns.

There also remain conceptual challenges in explaining, in an environment where there is still considerable dissimulation going on as well as genuine uncertainty, which particular cases are properly characterised as responsibility to protect situations and which are not: why it is, for example, to take those cases most debated in recent times, that the coalition invasion of Iraq in 2003 and Russia’s invasion of Georgia in 2008 were not justified in R2P terms; that the Burma-Myanmar cyclone in 2008 was not an R2P case, but could have been if the generals’ behaviour had been characterisable as so recklessly indifferent to human life as to amount to a crime against humanity, which in the event it was not; that Somalia and the Congo for many years, Darfur since 2003 and Sri Lanka in this year’s military endgame have been properly characterised as R2P cases, but where the international community’s response has been, for one reason or another, unhappily inadequate; and that Kenya in early 2008 is the clearest case we have had of an exploding situation being widely, and properly, characterised as an R2P one, and where the international community’s response – in this case diplomatic mediation – did prove to be adequate to bring it under control.

In addition to the conceptual challenges, there certainly remain institutional ones, in ensuring for a start that well-intentioned states facing atrocity crime problems get in practice all the assistance they need – and which the 2005 UN resolution clearly encourages other states to give them – in terms of capacity building, effective policy formulation and delivery and, if things get rough and they call for it, the necessary security support. It means also putting in place worldwide the early warning and response capability, the diplomatic and civilian response capability, the legal response mechanisms and – for extreme cases – the coercive military capability to ensure that the international community, if it has the will, can deliver the appropriate response to whatever new atrocity crime situation that comes along demanding its engagement, again as clearly authorised by the 2005 UN resolution.

One issue that arises in this context is whether, when it comes to putting in place appropriate legal response mechanisms, it is necessary or desirable for the responsibility to protect norm itself to be given some more formal legal status, for example – as David Scheffer has suggested, by incorporating appropriate provisions in the proposed Crimes Against Humanity Convention. In its present draft form this is focused on individual criminal responsibility, and limits state responsibility essentially to introducing the necessary legislative and other measures to make that real. Scheffer suggests that the Convention also contain state responsibility provisions expressly prohibiting the commission of crimes against humanity by any state-party entity itself, and requiring state-parties to act, as a matter of legal obligation, in accordance with the 2005 UN resolution.

My own instinct, for what it is worth, although I would certainly be happy to see this debated further, is that while such an exercise would certainly give new weight and prominence to the responsibility to protect norm, and that anything that reinforced the obligations of states to act constructively and not destructively in relation atrocity crimes would be hugely welcome, the risks probably outweigh the benefits. It would be nightmarishly difficult to get states to sign up to direct legal liability of the kind proposed, be a major distraction that would work against them signing up to anything else, and would in any event not make a great deal of practical difference since any enforcement action against a state itself would have to be a matter for the Security Council, and if the 2005 UN Resolution is to be taken seriously it already has that role

In addition to the conceptual and institutional challenges I have described, proponents of the responsibility to protect will always face a political challenge – to activate the real world response that is actually required to avert or halt an atrocity crime catastrophe. That means having in place mechanisms and strategies to ensure both peer group pressure, by government friends of R2P, to energise the highest levels of governmental and intergovernmental decision-making, and bottom up grass roots action to kick the decision makers into action if they are showing signs of hesitation.

Mobilising political will in any policy context whatever, national or international, requires the coming together of good information, good organization and good arguments. As to the last, it is helpful that ‘national interest’ is now a much broader concept than it used to be. It’s not quite as easy now as it was for Chamberlain in the 1930s to talk of faraway countries with people of whom we know nothing: we do know now that states that cannot or will not stop internal atrocity crimes are the kind of states that cannot or will not stop terrorism, weapons proliferation, drug and people trafficking, the spread of health pandemics and other global risks that every country in the world has a stake in ending.

There is still a long way to go before we can be confident that the automatic consensual reflex of which I spoke earlier will cut in at the time it should and in the way it should in every new case that arises, and longer still before we can credibly claim that the responsibility to protect principle in all its dimensions has evolved into a rule of customary international law. But the evidence, particularly over the last year, is of advance rather than reverse particularly with the large measure of consensus which seems to have emerged around the UN Secretary-General’s report on the implementation of the responsibility to protect, prepared after long consultations by his special adviser Edward Luck, and although still not debated by the UN General Assembly, expected to be formally received with little or no dissent.

The importance of the report is that it does not retreat in any way on the basic principles as they were adopted in 2005, and focuses very constructively on what states need to do for themselves, what others need to do to assist them, and the kinds of prevention, reaction and rebuilding measures that may need to be employed if a state is unreceptive to self-help or assistance and atrocity crime alarm bells are ringing. And what is intriguing is that some of the states who were last to join the consensus in 2005, and have been most resistant since in expressing support for the concept, have now very definitely changed course, with India’s Foreign Minister Pranab Mukherjee, for example, saying publicly in April this year that the Government of Sri Lanka had a clear ‘responsibility to protect’ its civilians at extreme risk in the final operations of the military against the Tamil Tigers.

IV

Maybe my confidence is a little premature, but one of the things that has most sustained me over forty years of public life, more than twenty of them working in international affairs, is a fairly unquenchable sense of optimism: a belief that even the most horrible and intractable problems are soluble; that rational solutions for which there are good, principled arguments do eventually prevail; and that good people, good governments, and good governance will eventually prevail over bad.

When it comes to international relations, and in particular the great issues of war and peace, violence, and catastrophic human rights violations with which we are concerned here, there is a well-established view that anyone who approaches things in this kind of generally optimistic frame of mind must be incorrigibly naïve, if not outright demented. Certainly in the case of genocide and atrocity crimes—either directly committed by a government against its own people, or allowed to happen by a government unable or unwilling to stop it—it is hard for even the incorrigibly naïve to remain optimistic.

In this world we inhabit—full of cynicism, double standards, crude assertions of national interest, high-level realpolitik, and low-level maneuvering for political advantage—it is very easy to believe that ideas do not matter very much. But I believe as passionately now as I ever have in my long career—starting and finishing in the world of nongovernmental organizations, but with much time between in politics and government—that ideas matter enormously, for good and for ill. For all the difficulties of acceptance and application that lie ahead, there are —I have come optimistically, but firmly, to believe—not many ideas that have the potential to matter more for good, not only in theory but in practice, than that of the responsibility to protect.

And in the cause of advancing that responsibility there can be few more constructive contributions to be made than strengthening the direct normative constraints against committing crimes against humanity – sharpening the applicable law, trying to universalise its application, and ensure its effective enforcement through worldwide cooperation. In all of this nothing less than our common humanity is at stake, and this group can be collectively very proud of what it is doing to advance it.