Responding to Mass Atrocity Crimes: The Responsibility to Protect After Libya

Address by Professor the Hon Gareth Evans, President Emeritus of the International Crisis Group, Co-Chair of the International Advisory Board of Global Centre for the Responsibility to Protect and Chancellor of the Australian National University, to the Royal Institute of International Affairs, Chatham House, London, 6 October 2011

Martin Gilbert has described the Responsibility to Protect (RtoP for short) as “the most significant adjustment to sovereignty in 360 years”. That’s a big call, but there’s a good argument to be made he was right. There had been some nibbling away at more absolutist Westphalian notions of sovereignty in the last half-century – not least in the aftermath of World War II by the Universal Declaration and a miscellany of other instruments aimed at protecting group and individual rights.

But it was quite something for more than 150 heads of state and government to declare unanimously on the occasion of the UN World Summit in 2005 not only that sovereign states had the responsibility to protect their own people from genocide, ethnic cleansing, crimes against humanity and war crimes, but that if they didn’t the wider international community had a responsibility to act in a “timely and decisive manner”, if necessary under the coercive provisions of Chapter VII of the UN Charter, to ensure they did.

And it was quite something for not just the UN General Assembly but the Security Council – with no dissenting voices, albeit not with a unanimous affirmative vote – to approve in specific real world cases the use of coercive military force for the explicit purpose of protecting civilians at risk of mass atrocity crimes. Peacekeeping forces have been, for some time now, given clear Chapter VII mandates to react forcefully to various threat contingencies, but the Cote d’Ivoire and above all Libya resolutions early this year took us to a place we haven’t been before.

But is this a place we are not likely to be in again? Does this week’s veto in the Security Council by Russia and China of a much watered-down condemnatory resolution on Syria, mean that Libya, so far from being the new benchmark against which future international action will be measured, and from which doctrine will move further forward, in fact be the high water mark of RtoP from which the tide will now rapidly recede?

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To appreciate how far we have come, and what is at stake here, it is important to start by remembering where we were, just a decade ago, at the end of the1990s. Despite the post-War recognition of “crimes against humanity” in the Nuremberg Tribunal Charter, the Genocide Convention, the Universal Declaration and International Covenants on Human Rights, and new Geneva Conventions on the protection of civilians; and despite the end of the Cold War giving new hope for consensus on how respond to mass atrocity crimes, the decade saw an almost unending series of reminders that the Holocaust was not an unrepeatable aberration; that genocide, ethnic cleansing, and other large-scale war crimes and crimes against humanity were something that could, given sufficiently combustible circumstances, erupt any time, on any continent, in countries of any degree of development; and that there was absolutely no international consensus about how to respond.

So we had the debacle of Somalia in 1993, the catastrophe of the Rwandan genocide in 1995, the almost unbelievable default in Srebrenica in Bosnia just a year later in 1995 and – when action was taken in 1999 in Kosovo, the absence of Security Council authority for it because of the threatened Russian veto. And throughout the decade, evidenced in bitter and divisive debates in the General Assembly and elsewhere, we had a fundamental conceptual gulf between those, largely in the global North, who rallied to the banner of “humanitarian intervention” or the “the right to intervene” (droitd’ingerence in Bernard Kouchner’s influential formulation), and those, largely in the global South, who defended the traditional prerogatives of state sovereignty, arguing that internal events were none of the rest of the world’s business.

It was this gulf that that the Responsibility to Protect (RtoP) concept was designed to bridge, in language first articulated in the 2001 report of the International Commission on Intervention and State Sovereignty, which I co-chaired with Mohamed Sahnoun, and which finally emerged in the more evolved form (presentationally a little different, but not substantively) in which it was endorsed by the 2005 World Summit. 1

The core elements of RtoP – and the crucial differences between it and ‘”humanitarian intervention” – need to be reiterated, because the differences get constantly blurred by those with short memories, or cynical or sceptical dispositions. Whereas “humanitarian intervention” was all about coercive military responses to extreme threat situations – and only about that – RtoP is much more nuanced, and multidimensional.

First, it involves a presentational shift – from the language of “right to intervene” to “responsibility to protect” (from the right of a few states to the responsibility of all, and from intervention by the strong to protection of the week) – which is not just linguistic in intention and effect, but rather designed to achieve a fundamental change of mindset and to create the possibility of common ground between longstanding antagonists.

Second, it involves the idea of a sequence of responsibility – starting with the spotlight on the sovereign state itself and its responsibilities (the idea of “sovereignty as responsibility” given prominence by Francis Deng and Roberta Cohen), and only then shifting to the responsibility of the wider international community. “Humanitarian intervention”, by contrast, is focused entirely on the external players: if there’s a problem with actual or impending mass atrocity crimes, it’s the responsibility of the international community to fix it.

And third, it involves a sequence of responses. Whereas humanitarian intervention was one-dimensionally military, with RtoP there are multiple elements in the response continuum. You start, conceptually, with the idea of prevention, long-term structural as well as short-term operational; when prevention looks like failing internally, you look first to the international community’s role in supporting and assisting a state to exercise its responsibility (including military support, if that’s what the state in question needs, and wants or is prepared to accept); when prevention of all kinds is manifestly failing and further measures become necessary, you look first to persuasion and only then to coercion; and when it comes to coercion, you look first at non-military means – like diplomatic isolation, sanctions, and threats of ICC prosecution – and only as a last resort to coercive military force.

Security Council Resolutions 1970 and 1973 this year were textbook examples of the last stages of that sequence: the first condemning violence, and applying coercive but non-military measures, and the second – three weeks later, after targeted sanctions and the threat of ICC prosecution had failed to concentrate Gaddafi’s mind – picking up the military option.

How that military mandate was actually exercised in Libya has of course become controversial, and I will shortly come to the question I posed at the outset as to the implications of what happened there for the future of RtoP. But what needs to be appreciated – and this is an unequivocally good news story for RtoP supporters – is how much of this basic conceptual package, as I have just described it, is now embedded in international discourse, and increasingly in international practice, although there still remain plenty of challenges.

The best proof of this lies in the series of debates, almost wholly unreported in the media, that have occurred in the UN General Assembly in 2009, 2010 and now again, post-Libya, in July 2011, in which it has become apparent that the basic RtoP doctrine is alive and well, however much caution might still be evident about how it should be applied in the really extreme cases, when all other options except coercive military force have been exhausted or appear unachievable.

The 2009 debate – the first in the post-2005 series ¬– was seen as a real opportunity to overturn the 2005 consensus by those who had never accepted it, and a major attack was mounted by the spoilers. But even then it became apparent, by the conclusion of the debate, that out of the whole UN membership, there were only four states who wanted to go so far: Nicaragua, Venezuela, Cuba, and Sudan. And since then, opposition voices have been even more muted. Although, given the widespread concern that NATO-led forces were overreaching their Security Council mandate in Libya, supporters of RtoP – not least the UNSG’s Special Adviser Ed Luck – went into this year’s debate with a great deal of trepidation, but their anxiety proved unwarranted. No serious objection was mounted by anyone to the RtoP principle: the only issue was the way in which it was being implemented.

Again, in the ministerial contributions to the debate in recent weeks opening this years UN General Assembly session, more countries than ever – 18 at last count –went out of their way to refer to RtoP and its importance, with again no direct challenge being mounted to the existence and legitimacy of the norm by anyone (other than the ever-reliably incorrigible Nicaragua). Two of the most fascinating acknowledgements that RtoP was here to stay came from rather unlikely sources, with the representative from Zimbabwe saying (with one might or might not accept as touching concern):

Bilateral hatreds and quarrels or ulterior motives must not be allowed to creep into considerations of matters pertaining to threats to international peace and security, or to the principle of the responsibility to protect.

And Syria’s representative saying (whether believably or not):

Syria exercised its responsibility to protect its citizens. It acted to guarantee their safety and stability

It all to me goes to support the accuracy of UN Secretary General Ban Ki Moon’s assessment in a speech two weeks ago that:

It is a sign of progress that that our debates are now about how, not whether, to implement the Responsibility to Protect. No government questions the principle.

I think it is fair to claim that RtoP really is a new international norm, with genuinely universal reach and application, and in its fundamental elements for all practical purposes universally accepted: the way the world thinks has changed.

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But of course getting this kind of agreement in general principle is only the beginning, not the end of the story. What matters is effective implementation of the principle in practice, and here there remain – as has been the case from the beginning – three big challenges: conceptual, institutional and political.

The conceptual challenge is to get agreement on what real world situations actually count as cases of RtoP concern, and here I think we are making real progress. There is much less confused debate now then there was in the first years after 2005 about what are, and are not, “RtoP situations”, and how they should be distinguished from conflict situations more generally, or human rights violation cases more generally.

At the outset, there was genuine confusion, for example, about whether the apparent foot-dragging of the Burmese generals after Cyclone Nargis was, or could have become, an RtoP situation. Again, the indefensible ugliness of the military action by the Sri Lankan army against the last holdout of the Tamil Tigers – and civilians caught in the middle – was complicated by the government’s claim, with which many internationally were in sympathy, that it was simply doing what it had to do to defeat a terrorist insurgency. And Russia further blurred the argument by claiming, with no more justification than the coalition which invaded Iraq in 2003, that there was an RtoP rationale for its invasion of Georgia in 2008.

But it has been difficult for anyone to claim confusion about the events in Kenya in early 2008, or Cote d’Ivoire at the beginning of this year, or Libya in the context of Benghazi, where Gaddafi talked – in language eerily reminiscent of the Rwanda genocidaires – of showing “no mercy or pity” for the “cockroaches” who had risen against him. These were all situations which everyone could see were heading rapidly into the shameful, talismanic “never again” territory of the Holocaust, Cambodia, Rwanda and Srebrenica, and where there were practically no voices to be heard arguing that what was happening was no-one else’s business but that of the sovereign state concerned.

On the institutional side, there are still many challenges to overcome before one could be confident that there is sufficient international preparedness – diplomatic, civilian and military – to deal with future situations of mass atrocity crimes occurring, or imminently about to occur, or very likely to occur within the readily foreseeable short to medium term, if effective preventive action is not taken.

But things are happening. The UN Joint Office is, after several years of frustrating prevarication, up and running and making its voice increasingly heard, as it has been for example in Kenya, Kyrgyzstan and Guinea as well as Cote d’Ivoire and Libya – and I hope will shortly, and vociferously, in the case of Sudan’s South Kordofan which is rapidly emerging as a serious RtoP risk situation. Within key national governments and regional organizations, “focal points” are gradually being established with officials whose day job it is to worry about early warning and response to new situations as they arise, and to energise the appropriate action throughout their respective systems. In the US, where this innovation has in many ways been taken furthest with a special unit established in the NSC under Samantha Power’s direction, President Obama has just issued a Presidential Directive to work on the creation of an interagency Atrocities Prevention Board, designed to take whole of government response to these situations to a new level of effectiveness.

And although we seem not much closer than ever to establishing effective military rapid reaction forces on a standby basis, let alone any standing international forces of the kind that have long been argued for, key militaries – led by the US – are devoting serious time and attention now to debating, and putting in place, new force configuration arrangements, doctrine, rules of engagement and training to run what are now being understood as a separate category of activity to both traditional war-fighting and peacekeeping, located on the spectrum between them and being increasingly described as “Mass Atrocity Response Operations.”

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But at the end of the day, however successful we are in meeting the conceptual and institutional challenges involved in taking RtoP forward and embedding the norm in international practice, there will always be the political challenge of mobilizing the most relevant actors. That challenge is now starkly evident in the post-Libya environment, as we confront the reality of this week’s veto by Russia and China, after months of argument, of a not at all confrontationally-drafted resolution on Syria, condemning the violence perpetrated by the regime on civilian protestor and indicating that the Council would “consider its options” with other, unspecified, measures, if the situation did not improve within 30 days. All this in the context of a death toll so far of some 2,700, and a situation overall which is at least as bad, if not worse, than that which triggered the military intervention in Libya.

The main stated reason for the opposition by Russia and China, and the footdragging by its fellow “BRICS”( Brazil, India and South Africa, who – as with Libya – abstained on this resolution) is that the NATO-led international forces exceeded the mandate they were given by UNSCR 1973, by pursuing outright regime change and supporting the rebel side in a full scale civil war when the only authorization was to act to prevent harm to civilians and civilian areas, and that there were risks, accordingly, in even indirectly flagging the possibility of “other measures”: it could not be assumed that even the most slender formal authority would not be misused.

Even those most generously inclined have to concede, I think, at least that NATO stretched its narrow mandate to the absolute limit. One can acknowledge, as I do, the force of the argument that civilians were very much at risk not only in Benghazi and other towns being attacked by Gaddafi’s forces but in Tripoli and other areas under his control, and that the only way these could be fully protected was by achieving regime change. But in the interests of giving no excuse to those who were always going to argue that giving the military option an inch would be bound to result in it taking a mile, and of preserving the maximum possible chance of consensus for action in the future when the next extreme situation arose, I for one would have preferred the operation to have been conducted on a much more restrained basis.

This would have involved, certainly, doing everything necessary to maintain a no fly zone, and directly attacking any attackable concentrations of forces clearly about to put civilians at risk in Benghazi or anywhere else. But beyond that, the brief would have involved close monitoring and action-as-necessary, rather than the much more sustained and wide-ranging operations that took place. This would undoubtedly have led to a more protracted, and maybe messier, civil war, which would have been tougher on the rebel forces and placed a real strain on domestic support within coalition members. But it would certainly have improved the chances of Libya being seen as a wholly positive new benchmark rather than possible high water mark.

But while there is some substance to the stated objections by Russia and the others who explained their opposition to the resolution this way, there is also a large measure of cynicism in Moscow’s position given its longstanding political and economic ties to and support of the Assad regime. This was never going to be a case where the issue was addressed on its absolute, objective merits, and we should bear that in mind in making judgements about how much to blame the course of events in Libya for the inaction on Syria.

What we have to accept, and treat as a challenge rather than cause for despair, is that there is always going to be tough debate about the really hard cases, where the violations that are occurring are so extreme that the question of coercive military force comes into play as something which, prima facie at least, might have to be seriously contemplated as the only way to halt or avert the harm that is occurring or feared. And the higher the stakes the higher the emotion, and the more that realpolitik will come into play.

When it comes to generating consensus on military action, we know that some cases will always be easier than others: where small countries are involved, not big ones; where the state in question has small and weak military forces of its own, not large and professional ones; where it is relatively friendless, rather than with supporters in other high places: and where a military intervention is not particularly likely to have wider regional ramifications, as compared to cases where it almost certainly will, perhaps because of cross-over ethnic or sectarian loyalties.

What is important in all of this is not to let the idea take hold that because – for any one of a number of reasons, good or bad or both – it will not be possible to intervene physically, militarily, everywhere that a mass atrocity crime situation arguably justifies this, then one should not intervene anywhere.

And what the Syrian case tells us, above all, is that we somehow have to get away from the mindset that I fear is becoming quite firmly ingrained in a number of minds – not helped, quite apart from Libya, by the rather cavalier approach adopted in 2003 by the coalition in Iraq to the force of prior UN resolutions – that the first step on a coercive response ladder inevitably implies a willingness and determination to go all the way to the top step, involving full scale coercive force: that the ladder is really a moving escalator.

The best way to tackle this may be to give renewed attention to clarifying just how different coercive military action is to other response mechanisms, and how many hurdles should have to be jumped before ever authorizing it: revisiting, in other words, all the concerns about humanitarian intervention which led to the creation of the very different RtoP approach. Coercive military intervention is something that should only be contemplated in the most extreme and exceptional circumstances – not an inevitable next step when lesser measures fail – and we have to find ways of making that even clearer to policymakers and their publics than is the case now.

I have long thought, and the Syrian situation reinforces this, that the most pressing unfinished business with respect to RtoP is just this: the need to get started the really serious debate we haven’t yet had on the criteria for coercive military intervention. If we can get a larger measure of agreement than we have at the moment as to what are the conditions – and there are a number of them, not just “last resort” – that would in principle justify this most extreme response; if we could see these criteria adopted as guidelines by the Security Council; and if we can then see those criteria applied with some rigour and consistency to new situations as they arise, I suspect it will be a lot easier to avoid the kind of “inevitable escalator” (or, to vary the metaphor, “slippery slide”) argument which has paralysed the Security Council response on Syria, making some countries unwilling to even foreshadow non-military measures like targeted sanctions or ICC investigation because of their concern that any inch conceded will indeed be driven a mile.

The kind of criteria we should be debating are the five tests of legitimacy for the use of force – in any context, not just mass atrocity crimes – recommended by former United Nations Secretary General Kofi Annan and the High Level Panel he appointed to advise the 2005 World Summit on reforms to the global security system. The first test is seriousness of risk: is the threatened harm of such a kind and scale as tojustify prima facie the use of force? The second is whether the primary purpose of the proposed military action is to halt or avert the threat in question. The third is last resort: has every non-military option been explored and found wanting? The fourth is one of proportionality: are the scale, duration, and intensity of the proposed military action the minimum necessary to meet the threat? The final, and usually toughest, legitimacy test, is balance of consequences: will those at risk ultimately be better or worse off, and the scale of suffering greater or less?

All these tests were passed with flying colours at the time of the passage – without dissent – of UNSC Resolution 1973 authorising military action in Libya, although a question mark has arisen since as to whether the “proportional response” criterion continued to be satisfied in the way the NATO-led forces actually conducted operations. In Syria by contrast, were coercive action now to be called for, it would be much more difficult to argue that all these criteria are satisfied, especially the last. Given the size and professionalism of Syria’s army, any attempted invasion would trigger a much larger conflagration than the one we are now witnessing, as ugly as it is; and the absence of any visible wider regional support for intervention, from the Arab League or anywhere else, would run the risk of any perceived Western intervention generating a major backlash in the Arab-Islamic world, with all the consequences for terrorist and related activity that might be expected to flow from that, in a way the Libyan intervention did not.

The point for present purposes is that if we can ever get to the point of having serious debates about the applicability of all these prudential criteria, it might well prove possible to take a good deal of heat and distraction out of these arguments. Certainly it should make it a lot harder to get away with “inevitable escalator” or “slippery slide” assertions, and hopefully easier as a result to get agreement on strong condemnatory language and, as appropriate, significant non-military coercive measures, in cases like Syria.

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The bottom line is that RtoP after Libya faces some challenges, but they are not insuperable. The principle is firmly established and it has demonstrably delivered major practical, but its completely effective implementation is going to be work in progress for a long time yet.

The real rest will be how the world responds to another Cambodia, Rwanda or Srebrenica situation any time soon. It may be naively optimistic to claim this, but after all that has been achieved in the past decade, I simply cannot see the rest of world now claiming, in the UN or anywhere else, that such a situation was none of its business. That’s the achievement so far, and that’s the ground we have to hang on to, and from which we have to advance, as we continue to work away to overcome the obstacles and disappointments that are inevitably going to confront us in the years ahead as we strive to replace the rhetoric of “never again” with rock-solid substance.

Reference:

1. Whereas the ICISS report identified the problem to be addressed in general “harm to populations” terms; the 2005 language narrowed the focus of concern to the “four crimes”, viz. genocide, war crimes, ethnic cleansing and crimes against humanity. And whereas the organizing principle of the ICISS was built around three kinds of response - prevention, reaction and rebuilding – the 2005 statement’s organizing principle was the “three pillars” of responsibility: that of sovereign states themselves to their own people, that of other states to assist them, and that of other states to engage in appropriate action to halt or avert the harm if the sovereign state was manifestly failing to do so.