Ethnopolitical Conflict: When is it Right to Intervene?

Keynote Address by Professor the Hon Gareth Evans, Chancellor of Australian National University and President Emeritus of the International Crisis Group, to Centre for Ethno-Political Studies Conference on Ethnopolitics and Intervention in a Globalized World, University of Exeter, 28 June 2010

Of all the internal conflicts and mass atrocity crimes of recent decades that have exercised the world’s conscience, and generated intense debate about when it is right for others to intervene in them in some way or another, most have had an ethnopolitical character in whole or part. Certainly not all such conflicts or crimes have their roots in grievance, fear or ambition based on ethnicity, race, nationality or religion – or whatever else can be broadly described as ethnopolitical factors. The Cambodian slaughter, for example, was ideology and class-based, inflicted by the Khmer Rouge on compatriots of exactly the same nationality, ethnicity, race and religion. But getting our response to these kinds of cases right is at the heart of the ongoing policy debate about intervention.

A Consensus-Free Zone. The point should be made at the outset that any serious debate at all on the rights and wrongs of intervention, military or otherwise, has been, historically, a remarkably recent phenomenon. In pre-modern times, localised conflicts and mass atrocities seem to have been a matter of indifference to everyone but the victims. With the seventeenth century Treaties of Westphalia, and the emergence of the modern system of nation states, that indifference simply became institutionalized: sovereign states did not interfere in each others internal affairs. Certainly there were instances in the nineteenth century of European states intervening in various corners of the Ottoman Empire to protect Christian minorities at risk – and the term “humanitarian intervention” was first used in this context. But there was no generally accepted principle in law, morality or state practice to challenge the core notion that it was no-one’s business but their own if states murdered or forcibly displaced large numbers of their own citizens, or allowed atrocity crimes to be committed by one group against another on their soil.

Even after World War II, with the awful experience of Hitler's Holocaust encouraging the embrace of new legal norms – the recognition of individual and group human rights in the UN Charter and, more grandly, in the Universal Declaration; the recognition by the Nuremberg Tribunal Charter in 1945 of the concept of “crimes against humanity”, and the signing of the Genocide Convention in 1948 – things did not fundamentally change. The overwhelming preoccupation of those who founded the UN was not in fact human rights or internal conflict but the problem of sovereign states waging aggressive war against each other. And what actually captured the mood of the time, and the mood that prevailed right through the Cold War years, was, more than any of the human rights provisions, Article 2(7) of the UN Charter: "Nothing should authorise intervention in matters essentially within the domestic jurisdiction of any State". The state of mind that even massive atrocity crimes like those of the Cambodian killing fields were just not the rest of the world’s business was dominant 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. And Tanzania had to justify its overthrow of Uganda’s Idi Amin by invoking ‘self–defence’, not any larger human rights justification.

It was not until the 1990s that anything resembling a serious international debate really took about these issues, in the context of successive tragedies unfolding in Sub-Saharan Africa and the Balkans. But it was an essentially one-dimensional debate, about the rights and wrongs of “humanitarian intervention”, i.e. the use of coercive military force, for human protection purposes, against the will of the government of the country in question. And essentially for that reason there was a conspicuous lack of international consensus. Those in the global North tended to rally behind the rallying cry of the “right to intervene” (“droit d’ingerence” in Bernard Kouchner’s influential formulation); but in the global South the prevailing mood was defence of state sovereignty at almost any price – hardly surprising given that so many of them were newly born, very proud of their hard-won sovereignty, very conscious of their fragility, and all too conscious of the way in which they had been on the receiving end in the past of not very benign interventions from the imperial and colonial powers, and not very keen to acknowledge their right to do so again, whatever the circumstances.

In this environment, with the only seriously debated policy options being “send in the marines” and “do nothing”, it is not surprising that in the cases where effective international action was desperately needed there was no agreement at all, resulting either in no interventions at all occurring (as in Rwanda), or when they did their UN mandates being either half-baked (as in Bosnia) or non-existent (as in Kosovo).

The Way Forward: The Responsibility to Protect. The turning point came in 2001, with the emergence of the concept of “the responsibility to protect” in the report of the International Commission on Intervention and State Sovereignty (ICISS), designed, unashamedly, to break this impasse. My fellow commissioners and I were concerned to build new doctrine on sound philosophical and legal foundations, in a way that was intellectually and academically respectable, but I have to say that our overwhelming preoccupation then – and mine to this day – was, and is, sharply practical: stopping mass killing, raping, forced population shifts and property destruction. To do that we had to build a new consensus, among practitioners, from the ground up. And the only way we could do that was to make several things clear beyond rational dispute.

First, that the primary responsibility to protect its own people from large-scale human rights violations continued to lie with the sovereign state itself, and it was only if it was unable or unwilling to so act that any responsibility shifted to the wider international community. Second, that when such a shift did occur, coercive military intervention was only something to be considered in the absolute last resort, with the overwhelming responsibility being to prevent the harm in question occurring at all, and by means that were supportive and persuasive rather than coercive. Third, that if coercive military intervention were ever to be justified, it could only be when multiple criteria – going to both moral legitimacy and international legal authority – were satisfied. The emphasis throughout was not on “right” but “responsibility”; not on “intervention” but “protection”; and on that protection involving not just reaction after the event, but preventive and rebuilding strategies to stop it occurring, and recurring.

Articulated this way, the new concept did gain remarkable international traction within a very short time. After two further reports (by a High Level Panel appointed by the UN Secretary General, and by Secretary-General Annan himself) the responsibility to protect had won unanimous endorsement by the more than 150 heads of state and government meeting as the UN General Assembly at the 2005 World Summit, and within another year had been embraced in a Security Council resolution. In 2009, after another long and intense debate in the UN General Assembly in which nearly every member state participated directly or indirectly, and which was preceded by a sustained effort by a number of spoilers over many months – led by the President of the Assembly himself – to create a climate for tearing apart the 2005 consensus there ended up being only four states opposing outright the whole responsibility to protect principle: Nicaragua, Venezuela, Cuba and Sudan. An instructive combination!

I do not argue that the responsibility to protect could in 2005, or can now, be properly described at this stage as a new rule of customary international law. That will depend on how comprehensively this new concept is implemented and applied in practice, as well as recognised in principle, in the years ahead. But I do argue that, with the weight behind it of a unanimous General Assembly resolution at head of state and government level, and now an effective reaffirmation of that resolution five years later, the responsibility to protect can already be properly described as a new international norm: a new standard of behaviour, and a new guide to behaviour, for every state.

All that said, there is obviously still a major task ahead to further consolidate the momentum which has been achieved, and ensure that words really will now become deeds – that the new norm will be effectively implemented when and where it needs to be. I will return to some of these themes in the last part of this address, in which I want to take the opportunity to respond to some of the more familiar academic criticisms of the responsibility to protect concept and its utility. But for present purposes I would describe the challenges ahead as being of three broad kinds – conceptual, institutional and political – and summarise them as follows.

The main conceptual challenge is to untangle any remaining problems of definition so as to ensure to the extent possible that there is agreement about what are specifically ‘responsibility to protect’ situations, and what may be better thought of as more familiar conflict or human rights violation cases: a regularly published watchlist, perhaps prepared by the Global Centre on the Responsibility to Protect in New York, whose Advisory Board I co-chair, would be very helpful in this respect.

Such an authoritative watchlist, had it existed, would have been helpful in steering us through those definitional cases most debated in recent times. It would, or should, have made clear, e.g., that the coalition invasion of Iraq in 2003 and Russia’s invasion of Georgia in 2008 were not justified in responsibility to protect terms; that the Burma-Myanmar cyclone in 2008 was not a responsibility to protect 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 the 2009 military endgame have been properly characterised as responsibility to protect 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 a responsibility to protect one, and where the international community’s response – in this case diplomatic mediation, not any kind of military response – did prove to be adequate to bring it under control.

A major piece of unfinished conceptual business, which should have been addressed in the 2005 resolution or in subsequent Security Council deliberations, but which remains in the too-hard basket, is finding consensus on prudential criteria for the use of military force. As I have said already and will again, military force is certainly not the only form of intervention contemplated by the responsibility to protect principle. It’s only relevant in extreme and exceptional cases, it’s only legal when applied in accordance with the UN Charter, and it’s only legitimate when it satisfies the kind of criteria set out in the ICISS, High Level Panel and 2005 Secretary-General’s reports.

The five “criteria of legitimacy” which emerge from these reports involve the seriousness of the harm being threatened; the primary intent or purpose of the proposed military action (whether it’s to halt or avert that harm or for something else); the issue of last resort (whether there are reasonably available peaceful alternatives); the proportionality of the response; and the balance of consequences – whether more good than harm would be done. The argument for having a set of agreed such guidelines, with moral but not legal force, is not that they would be self-executing, producing agreed outcomes with push-button consistency: rather simply that the prospects of finding real consensus on what are, and are not, suitable cases for military treatment would be much enhanced.

The main institutional challenges are to ensure that there are early warning and response focal points established within all the key governments and intergovernmental organizations; to have in place civilian capability able to be utilized, as occasion arises, for diplomatic mediation, civilian policing and other critical administrative support; and to have, at least in a standby capacity, rapid response military capability, to ensure available support in the most extreme cases which cannot be otherwise addressed.

The main political challenge is to ensure that conceptual agreement and institutional preparedness will actually translate into effective action when ugly new situations arise crying out for effective response, by no means a given. That means in turn having a number of things in place – including good advocacy mechanisms, good arguments and good leadership – for not all of which is it easy to prepare in advance. But some things that can be done are to create or consolidate informal mechanisms for quickly mobilizing and sustaining political support as needed, particularly a global NGO coordinating mechanism and a governmental group of “friends of the responsibility to protect”, frameworks for both of which now exist, but need further development.

Responding to Critics. These are the kinds of issues on which I am now working, and I hope that serious, constructive work on all of them will be done, as it has been by a number of you in recent years, in the academic community. There are some in this community, however – who may or may not be present here today – who express themselves to be troubled by various aspects of the responsibility to protect principle and its application, and it might be useful if I took this opportunity to address some of the more vociferous of those concerns.

‘Old militarism in a new bottle’. One criticism that I am a little surprised to find recurring ten years after the ICISS report is that the responsibility to protect is simply, as someone writes not very kindly in the current issue of the New Left Review, a “facile rebranding of interventionist doctrine” – old militarism in a new bottle. Although one keeps on coming across this misrepresentation in academically more respectable journals than this one, it is absolutely not the case that the responsibility to protect is just another name for “humanitarian intervention”. They are very different concepts.

The very core of the traditional meaning of humanitarian intervention is coercive military intervention for humanitarian purposes – nothing more or less. But the responsibility to protect is about much more than that. It is about taking effective preventive action, and at the earliest possible stage. It implies encouragement and support being given to those states struggling with situations that have not yet deteriorated to the point where genocide or other atrocity crimes are a reality, but where it is foreseeable that if effective preventive action is not taken, with or without outside support, they could so deteriorate. It recognizes the need to bring to bear every appropriate preventive response: be it political, diplomatic, legal, economic, or in the security sector but falling short of coercive action (e.g. a “preventive deployment” of troops, as in Macedonia in 1995).

Of course there will be situations when prevention fails, crises and conflicts do break out, and some interventionary reaction becomes necessary. But that does not have to mean military intervention: it can involve political, diplomatic, economic and legal pressure, measures which can themselves each cross the spectrum from persuasive to intrusive, and from less coercive (e.g. economic incentives, offers of political mediation or legal arbitration) to more coercive (e.g. economic sanctions, political and diplomatic isolation, threats or decisions to refer to the International Criminal Court). Coercive military action cannot be excluded when it is the only possible way to stop large scale killing and other atrocity crimes, as nobody doubts was the case, for example, in Rwanda or Srebrenica. But it is a travesty of the responsibility to protect principle to say that it is about military force and nothing else. That’s what “humanitarian intervention” is about, but it’s not the responsibility to protect.

A variation of the criticism in question is that whatever the responsibility to protect is actually about – and however carefully may be drafted its more robust elements, justifying coercive intervention only in the most extreme and carefully defined cases – it will be seen as seeking to legitimate and mandate intervention more generally, and be bound to be misused, so much so that – as one critic puts it – “there is more to be said for the status quo than is usually acknowledged”. The better approach, he suggests, is pragmatic ad hocery, in which states – at least when they see it as in their own interests to so act – will from time to time respond to atrocity situations with appropriate vigour, whatever the rules are.

But the trouble is that this kind of ad hocery is exactly what we have had for so many decades, and indeed centuries, with results that have been horrifyingly ineffective in human protection terms, and the very thing that has led so many policymakers, and citizens, around the world to ask themselves, with a mixture of anger, incomprehension and shame how the unimaginably awful could, yet again, have happened. The whole point of trying to craft a new conceptual framework for addressing mass atrocity crimes was to generate, internationally, when any new such case came along, a reflex consensus reaction that such man-made catastrophes were everybody’s business, not nobody’s, and to generate effective collective action accordingly.

‘Old doctrine in a new bottle’. A different but equally familiar kind of criticism, appealing to quite a raft of academic commentators keen to demonstrate that they have read all the pre-existing literature, is that the responsibility to protect, while it might not be a re-run of humanitarian intervention, is still nothing new - just old doctrine in a new bottle. The idea of “sovereignty as responsibility” had been articulated and actively promoted earlier by Francis Deng and Roberta Cohen in the context of IDPs, and maybe even the phrase “responsibility to protect” itself had occurred mid-sentence in an article or chapter or two; the idea of limitations on absolute state sovereignty is inherent in the UN Charter and the major human rights instruments; the responsibility to protect is just a political call to for all states to abide by legal obligations already in treaty instruments and international humanitarian law… and so on, and on.

All true, but comprehensively missing the point. Substantive obligations were not being observed; Article 2(7) of the Charter was being given more weight than the rest of the corpus of treaty instruments put together; no-one was actually using “sovereignty as responsibility” or “responsibility to protect” language in any generally prescriptive way; the only conceptual framework for the intervention debate was “humanitarian intervention”, about which there was not only zero consensus, but a bitter international contest. What was needed was a political game-changer. What exercised the original ICISS Commission was the need to find a way – as simple as possible, and if it had some resonances in pre-existing literature and international law so much the better – to rearticulate the issues, which would build a bridge between the absolute-sovereignty and limited-sovereignty brigades, getting them to find some common ground which previously simply did not exist: rather as Gro Brundtland’s commission on the environment a few years earlier had come up with the expression “sustainable development”.

The whole point of the enterprise, to repeat, was to create the conditions for a reflexively consensual rather than reflexively conflictual response to new internal conflict and atrocity crime situations as they arose in the future. None of us working to develop and implement the responsibility to protect norm believe that this will be other than an evolutionary process, but we now have useable conceptual tools – with extraordinary wide buy-in, formal though a good deal of that may well still be – which we didn’t have before. And anyone who can’t see the difference in international reflexes between the response to Rwanda in 1994 and Kenya in 2008 hasn’t been looking.

‘A good idea diluted.’ The remaining very familiar academic critique I want to touch upon is the notion that there has been a major change, not for the better, as compared with the original formulation in the ICISS report, in the way the responsibility to protect concept has been articulated in the UN in 2005, and more recently in the Secretary-General’s report on it (prepared by his adviser Ed Luck) that was debated in 2009. My response is that there definitely has been some evolution in the presentation of the concept, that these changes have been wholly for the good in terms of winning wider acceptance of it, and that none of them has diluted or weakened in any way the core elements of the original proposal.

One important move, crucial to winning acceptance for the concept at the 2005 World Summit, was to define the threshold for the application of the doctrine more narrowly – in terms of the occurrence or anticipation of “four crimes” (“genocide, war crimes, ethnic cleansing and crimes against humanity”); the ICISS report, while essentially focusing on the same group of what might be called for convenient reference “mass atrocity crimes”, had used a broader and more ambiguous formulation – “a population suffering serious harm, as a result of internal war, insurgency, repression or state failure” – which made some states nervous about potential overreach.

A second change, more presentational than substantive, and again certainly causing me no heartache, is to characterize the relevant responsibilities in terms of “three pillars” – with what was implicit in Paragraphs 138 and 139 of the 2005 Outcome document in this respect being made explicit in the Luck report. Pillar One is the responsibility of each state to protect its own population from the atrocity crimes in question; Pillar Two is the responsibility of others to assist it to do so; and Pillar Three is the responsibility of the wider international community to respond in a “timely and decisive” fashion and by all appropriate means (not excluding coercive military action, in accordance with the UN Charter) if this becomes necessary because the state in question is “manifestly failing” to protect its people. Characterizing the different responsibilities in this way has proved helpful in practice in getting the great majority of states to understand and accept what is involved. Understandably, in the case of quite a few states in the global South, there is a greater level of comfort with Pillars One and Two than with the more potentially intrusive Pillar Three, but in the 2009 debate almost none of them opposed Pillar Three outright.

Some critics have made too much of the distinction between the “three pillars” approach and that in the original ICISS report (and, for that matter, my own much more recent book on the subject), which primarily describes the responsibilities in question as being “to prevent, react and rebuild”. The point is simply that these are simply alternative ways of organizing and presenting exactly the same material. Think of a cake with three layers – labelled respectively, from the bottom up, “prevention”, “reaction” and “rebuilding” – which is then sliced vertically into three big wedges, labeled respectively Pillars One, Two and Three. The point is that the state itself has the responsibility under Pillar One to perform all three roles of prevention, reaction and rebuilding, as circumstances require; as does any state assisting it under Pillar Two; and as does the wider international community when playing an even more activist – and ultimately possibly interventionist – role under Pillar Three.

All that said, there is I think one very fair point made by a number of critics – that giving so much attention to the preventive themes in Pillars One and Two is likely to dilute the real value-added of the responsibility to protect norm, which is to act as a rallying cry for effective international action when things really start getting out of hand. The argument is that the kind of advice, assistance and support strategies involved in a good many Pillar One and Two contexts, notably those of a long-term structural prevention character, are likely to involve exactly the same kinds of strategies – for example governance and rule of law capacity building and economic development designed to redress inequalities between ethnic and other groups – as those one would deploy in addressing conflict prevention and human rights protection objectives more generally, and that actively describing them as responsibility-to-protect strategies simply confuses the issue, and creates the impression that the responsibility to protect is all about everything, rather than being specifically designed to improve the international community’s lamentable record of inaction in the face of mass atrocity crimes actually occurring.

I think this is a legitimate concern, one that I have come to see more clearly as time has gone on. I would address it this way. By all means let us continue to recognise that there is a long term preventive dimension to the responsibility to protect concept, and that there is every reason to work away at strategies designed to reduce the kind of ethnopolitical and other tensions and grievances that may have the potential, if not addressed, to build to explosion point in the distant future. But let us recognise that there is no particular utility, and some downside risk, in labelling these strategies as responsibility to protect ones – just describe them as related to conflict prevention or the advancement of human rights. Let us confine the responsibility-to- protect label, at least when we are talking about countries of responsibility-to-protect concern, to that small subset of cases where atrocity crimes are occurring, imminent, or likely to occur in the readily foreseeable future if effective preventive or reactive strategies are not immediately embraced. At any given time there are likely to be one hundred or so countries that are the subject of reasonable international human rights concern, and seventy or so countries that justify attention on conflict prevention or resolution grounds, but perhaps only a dozen or so countries that can properly be regarded, at any given time, as being of responsibility-to-protect concern in the narrow sense I have described.

It will take time for the new norm to become as effective a mobiliser of appropriate international action as its advocates, including me, would like it to be. Kenya in early 2008 is probably the best example we have so far of the responsibility to protect appearing to play an important energizing role in stimulating an effective response – here diplomatic rather than military, be it noted again – to a rapidly emerging large-scale atrocity crime situation. Darfur, by contrast, is a case where the international community’s response has been from the outset, and remains, much less focused and effective than it should have been. Sri Lanka in 2009 was another where the international community largely dropped the ball. And there are others. But the lesson here is not that the concept is inherently ineffective, or irrelevant; rather that we just have to do much better in applying it in future.

We should not downplay what has been achieved so far in just a few short years – a fundamental shift in attitudes occurring on the scope and limits of state sovereignty, and the rapid diminution in support for the notion that the state could do no wrong in dealing with its own people. It may well be a stretch to claim, as I implicitly did in the subtitle to my recent book, that the emergence and consolidation of the new norm of the responsibility to protect will end mass atrocity crimes once and for all. But it gives us a better chance of getting there than we have ever had before.