The Raison d'Etre, Scope and Limits of the Responsibility to Protect

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 International Colloquium on The Responsibility to Protect: Ten Years On, Universite Paris Ouest, Centre de Droit International (CEDIN), Academie Diplomatique Internationale, Paris, 14 November 2011

It’s right to acknowledge, here in Paris, that the responsibility to protect story really all began with Bernard Kouchner. He was absolutely correct two decades ago to try to energise global debate about the international community’s lamentable failure to prevent and respond effectively to mass atrocity crimes occurring within state boundaries. Kouchner’s reformulation (in a paper written with Mario Bettati in 1987), and subsequent active promotion throughout the 1990s, of the old idea of ‘humanitarian intervention’ in the crisp new guise of ‘droit d’ingerence’ – the ‘right to intervene’ – made the proper international response to genocide, ethnic cleansing and other major crimes against humanity the single most debated foreign policy issue of that decade.

Energising such a policy debate was desperately overdue. A recurring theme not just of previous decades but of many centuries had been the unwillingness or inability of states, individually or collectively, to end the large-scale murder, torture, rape, starvation, expulsion, destruction of property and life opportunities of others for no other reason than their race, ethnicity, religion, nationality, class or ideology.

It is extraordinary how little was done for so long, even after the experience of the Holocaust. Despite the post-World War II recognition of ‘crimes against humanity’ in the Nuremberg Tribunal Charter; despite 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 of the 1990s saw an almost unending series of reminders that the Holocaust, and Cambodia in the 1970s, were not unrepeatable aberrations, and that in dealing with these catastrophes the world was in a consensus free zone.

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 Rwandan genocide in 1994, and the almost unbelievable default in Srebrenica in Bosnia just a year later, in 1995. And when action was taken in 1999 in Kosovo, it was unlawful – without Security Council authority because of a threatened Russian veto.

But droit d’ingerence wasn’t the answer. The trouble was that Bernard Kouchner’s formulation, while it certainly generated policy debate, and in fact proved a wonderful rallying cry in the global North, enraged as many as it inspired, and did nothing to generate desperately needed international consensus. The ‘right to intervene’ proved a powerful turn-off in the global South – not least in the French-speaking world, where ‘ingerence’ carries the sense not just of ‘intervention’ but ‘interference’.

Newly independent states in in particular, proud of their recently won sovereignty, and in many cases conscious of their fragility and remembering the long colonial history of ‘missions civilisatrices’, were deeply reluctant to embrace the idea that anyone had a right to forcibly intervene in their internal affairs. Their rallying cry became Article 2(7) of the UN Charter: “nothing…shall authorize the United Nations to intervene in matters which are essentially within the jurisdiction of any state”. And so, throughout the 1990s, there was both bitter and divisive debate in the General Assembly and elsewhere, and – as a result -- the almost complete absence of effective action.

It was to find a way out of this political impasse that the Responsibility to Protect (RtoP) concept was born. When the Canadian government established the International Commission on Intervention and State Sovereignty (ICISS), which I co-chaired with Mohamed Sahnoun our primary task, as we saw it, was to come up with something which built, rather than burned, bridges between North-perceptions and South-perceptions; which made clear that there were other response options apart from ‘sending in the Marines’ or ‘doing nothing’ – that forcible military intervention was not the only game in town; and which, above all, was capable of generating a reflex international response that mass atrocity crimes were not nobody’s business, but everybody’s.

Our report published in 2001 – ten years ago next month– sought to meet these objectives in three main ways. First, presentationally, by turning ‘the right to intervene’ into the ‘responsibility to protect’: re-characterizing the issue as not being about the ‘right’ of states to do anything, but rather the ‘responsibility’ of all states to act to protect their own and other peoples at risk. Our hope was that this would enable entrenched opponents to find new ground on which to constructively engage, rather in the way that the Brundtland Commission a few years earlier, by introducing the concept of ‘sustainable development’, had given developers and environmentalists a mutually accepted frame of reference in which to argue out specific cases.

Secondly, we broadened the range of actors in the frame. Whereas ‘the right to intervene’ focused just on the international response, the new formulation spread the responsibility – starting with the spotlight on the sovereign state itself and its responsibilities (the idea of ‘sovereignty as responsibility’ that had been earlier given prominence by Francis Deng and Roberta Cohen), and only then shifting to the responsibility of the wider international community.

And thirdly, we dramatically broadened the range of responses. Whereas the right to intervene, or humanitarian intervention, focused one-dimensionally on military reaction, the responsibility to protect involves multiple elements in the response continuum: preventive action both long and short term, reaction when prevention fails, and post-crisis rebuilding aimed again at prevention, this time of recurrence. The ‘reaction’ element was itself a nuanced continuum, beginning with persuasion, moving from there to non-military forms of coercion of varying degrees of intensity, and only as an absolute last resort – after multiple criteria were satisfied – contemplating coercive military force.

The raison d’etre of the responsibility to protect, in the minds of the Commission, was unequivocally action-oriented and political: to change the way policymakers thought about mass atrocity crimes, to make clear they were everybody’s business, and to cut away the excuses for inaction in the face of conscience-shocking assaults on our common humanity. And, looking back, it is clear that the three dimensions of the Commission’s report I have just described were the key to the extraordinarily rapid initial international acceptance of the basic RtoP concept, with its unanimous endorsement just five years later by more than 150 heads of state celebrating the UN’s 60th Anniversary at the 2005 World Summit.

So much for the origins and raison d’etre of RtoP. What is the scope of the concept, and what are its limits? In the process of its transformation from Commission report to the language of Paragraphs 138 and 139 of the 2005 World Summit Outcome document – a process which has continued to some extent with the further articulation of the issues in a series of well-received reports to the General Assembly in 2009, 2010 and 2011 by the Secretary-General (written by his Special Adviser on RtoP, Ed Luck) – the scope of the RtoP concept was in one important respect narrowed, and in another major respect presentationally refined. This has generated some academic criticism to the effect that the original Commission report has been unacceptably ‘diluted’. But neither I – nor, I think, any of my fellow Commissioners – believe that criticism is at all warranted.

The ‘narrowing’ that took place in Paras 138 and 139 was the definition of the threshold for the application of the doctrine much more precisely – 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 that same group of 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. As Edward Luck has recently written – describing as ‘narrow but deep’ the formulation to emerge in 2005 – the product of the World Summit bargaining process was a ‘stronger, not weaker RtoP’. And he was right.

The major refinement that has taken place has been the characterization of the relevant responsibilities in terms of ‘three pillars’. This was implicit in Paragraphs 138 and 139 of the 2005 Outcome document, and in fact in the Commission report before it, but was made explicit in the 2009 Secretary-General’s 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. I think, again, that characterizing the different responsibilities in this way has proved extremely helpful in practice in getting the great majority of states to understand and accept what is involved, and has given the doctrine greater political force and effect than it would have otherwise have had.

Some commentators have made far too much of the distinction between the three pillars approach and that in the original ICISS report, which – as I indicated earlier – 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 – labeled 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 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 role under Pillar Three.

To understand the origins and raison d’etre of RtoP, and its scope as I have just described it, is also essentially to understand its limits, both conceptually and politically. But let me spell out in a little more detail than I have so far what I would regard as the four most important of those limits. First, RtoP is about the ‘four crimes’ – not human security generally, human rights violations generally, or conflict situations generally, however much its language might be thought to lend itself to these situations. It is not about the wider international community’s responsibility to respond to natural disasters or other humanitarian catastrophes, unless some element of criminal responsibility comes into the picture. To conceive of it otherwise is to dilute its impact as a catalyst and energizer for responding to mass atrocity crime situations which were so often ignored in the past.

Second, for RtoP to be triggered there has to be some scale and contemporaneity about the atrocity crimes committed or feared. Saddam Hussein was a serial human rights violator whose behavior in persecuting political opponents amply justified condemnation and sanctions, but if his genocidal assaults on Kurds in the late 1980s and southern Shiites in the early 1990s could be regarded as justification for the most extreme form of RtoP reaction – military invasion – ten or more years later, then there would have been ample justification for a military assault on Robert Mugabe based on his genocidal behavior in Matabeleland in the 1980s: and down that path lies the abandonment of any prospect of international consensus on hard cases in the future.

In the first few years after the adoption of RtoP there was a good deal of argument and uncertainty about what were and what were not ‘RtoP cases’, but as successive situations have arisen and been debated, more and more consensus is evident on its conceptual scope and limits. So far as policymakers are concerned – I am not so sure about academics – my reading is that it would now be generally agreed, consistently with the limits I have described so far, that:

• the coalition invasion of Iraq in 2003 and Russia's invasion of Georgia in 2008 were not justified in RtoP terms (despite the views of Tony Blair and Vladimir Putin, respectively);
• the Burma-Myanmar cyclone in 2008, after which the military regime badly dragged its feet for a time in allowing international assistance, was not an RtoP case (contrary to the views of then Foreign Minister Kouchner), but could have been if the generals' behaviour had continued long enough, which in the event it did not, to be characterisable as so recklessly indifferent to human life as to amount to a crime against humanity;
• Somalia and the Congo for many years; Darfur certainly in 2003-04 though more ambiguously since; and Sri Lanka in the horrific final military confrontation in 2009 between government forces and Tamil Tigers, in which so many civilians perished, have been properly characterised as RtoP cases;
• post-election Kenya in early 2008 was an absolutely clear-cut case of an exploding situation being widely, and properly, characterised in RtoP terms (and an important demonstration that an effective RtoP response could take a diplomatic rather than coercive military form);
• Cote d’Ivoire early this year, in which – as with Libya, the Security Council both invoked RtoP and authorised coercive military action – was a clear RtoP case, although complicated by other legitimate agendas running simultaneously, with regional-organization action to enforce a democratic election outcome and a UN mandate extending to force protection rather than just civilian protection;
• Libya was a textbook case for the application of the RtoP principle, and the Security Council resolutions in February and March this year (whatever one thinks of the later conduct of the mandated military action) were textbook responses: quick and robust reactions of the kind that prevented catastrophes in Benghazi and Misrata would have saved 8,000 lives in Srebrenica and 800,000 in Rwanda; and
• even now with Syria, where it has proved impossible so far to reach any kind of consensus on an appropriate Security Council response, no one has seriously argued that this is “not an RtoP case”.

There are two other limits to the reach of RtoP that need to be mentioned.

Third, there are some political, if not conceptual, limits on the extent to which it is useful to describe some kinds of preventive action in RtoP terms. Early, long term structural prevention action – e.g. to improve the quality of governance; to embed the rule of law; to ensure greater civilian control of the military; and to redress minority grievances economically, legally, constitutionally and politically – can be hugely important in heading off possible future atrocity crime explosions. But these are exactly the long-term structural measures that are properly deployed in addressing conflict prevention and human rights protection objectives more generally. To explicitly label them as RtoP strategies may be conceptually accurate but politically counterproductive, reinforcing the impression that RtoP 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 or imminently occurring.

It makes more practical sense, in my judgement, to confine the label of ‘countries of RtoP concern’ to the small subset of cases – likely to be no more than a dozen or so at any one time (as distinct from perhaps 100 country cases of human rights concern, and 70 or so of conflict concern at any given time) 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. That way the RtoP norm stays manageable in its reach, and most likely to be politically effective.

Fourth, it can never be stressed enough by RtoP advocates that there are very real limits to the extent to which coercive military action should be regarded as an option, even in response to quite shocking situations that can unequivocally be characterized as RtoP ones. As evidenced by the Security Council’s lamentably inadequate response to the carnage in Syria, there has indeed been a backlash in some quarters against the perceived overreach of the NATO-led international forces in converting a clear and limited civilian protection mandate into an effectively unlimited regime change one. Clearly it will be harder to get Security Council endorsement in the future for the use of coercive military force in response to occurring or impending mass atrocity crimes.

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.

The lesson of Libya is that R2P advocates have to define all over again, with more precision this time, the stringent, limiting, prudential criteria which should have to be satisfied before coercive military force is authorized by the Security Council, and which should govern its subsequent application. Five such criteria (seriousness of harm feared; genuine intent to address that harm; nothing less than military coercion likely to succeed; force application proportional to the harm feared; and overall balance of consequences positive) have been long on the table – spelt out in the ICISS report and, in the lead up to the 2005 World Summit, both the High Level Panel Report and the Secretary-General’s own report. They should be adopted as formal Security Council guidelines, not as a guaranteed route to consensus but an aid to achieving and holding it in hard cases.

All these criteria were all clearly applicable when the Security Council acted to prevent imminent massacre in Benghazi in March. But some – especially proportionality – were much less obviously so as the intervention wore on. And we are now bearing the painful consequences of that as we fight to keep RtoP alive in all its dimensions, and to ensure that Libya and Cote d’Ivoire remain the benchmarks they are for decisive action in extreme cases, and not the high water mark from which the tide will now recede.

I think the bottom line is that RtoP after Libya does certainly face some challenges, but they are not insuperable. No-one really wants a return to the indifference and inaction of the past, and there is hard evidence for that, not least in the major General Assembly debate in July 2011 in which – at a time when criticism of NATO in Libya was strong and growing – there was still overwhelming continuing support expressed for RtoP, in all its dimensions. Moreover the Security Council itself has referred to RtoP on three occasions since the Libya resolutions – in resolutions on Sudan and Yemen, and in a presidential statement on prevention.

But there is still plenty of work to do, by the international community in all its manifestations, if we are to put ourselves in the situation of never again having to look back, after yet another horrific mass atrocity crime has unfolded, asking ourselves with a mixture of anger, incomprehension and shame how we could possibly have let it happen again.