Responding to War Crimes and Other Mass Atrocities

Presentation by Professor the Hon Gareth Evans AC QC to  2012 SEW International Justice Forum, Wheeler Centre, Melbourne, 2 August 2012

Our age has confronted no greater ethical, political and institutional challenge than ensuring the protection of civilians, both as victims of war and of mass atrocity crimes. In wartime, civilians have for long now been killed and maimed in numbers far exceeding armed combatants. And in wartime or not, the murder, torture, rape, starvation, or forced expulsion of groups of men, women and children, for no other reason than their race, ethnicity, religion, nationality, class or ideology, has long been a recurring stain on the world’s collective conscience.

What is in some ways hardest of all to believe is how little changed in the decades after World War II.  Even with all the developments in international human rights law and international humanitarian law which followed the War – even with the Nuremberg Tribunal Charter and its recognition of “crimes against humanity” which could be committed by a government against its own people; even with the recognition of individual and group rights in the UN Charter, and more grandly in the Universal Declaration of Human Rights and the subsequent International Covenants; even with the new Geneva Conventions taking forward international humanitarian law on the protection of civilians; and even after the Genocide Convention signed in 1948 – aimed at preventing and punishing the worst of all crimes against humanity, attempting to destroy whole groups simply on the basis of their race, ethnicity, religion or nationality – the killing still went on.

When it came to reacting to horrifying cases like Cambodia, East Pakistan, and Uganda in the 1970s and ‘80s, and to Rwanda, Bosnia and Kosovo in the ‘90s, the world was in almost total disarray: intervening either not at all, or totally ineffectively, or without the legal authority of the UN Security Council in defiance of the whole idea of a rule-based international order.

There was at least real debate about these issues in the ‘90s, but it was only about ‘humanitarian intervention’: the so-called ‘right to intervene’ militarily. Hardly anyone talked about prevention or less extreme forms of engagement and intervention, and there was no system of international criminal justice to which anyone could resort.  The options were ‘Send in the Marines’ or do nothing. The global North often rallied to the ‘right to intervene’ cry, but the global South was understandably deeply reluctant – after all its unhappy historical experience – to accept the idea that big guys had the right to throw their weight around in this way. So we had all the division and inaction and despair that most of us here will remember all too vividly: saying each  time ‘never again’, but then having to look back over again, and again, with a mixture of anger, incomprehension and shame, asking ourselves how it could possibly have happened again.

So the world had both an institutional problem, in particular the absence of international courts and tribunals with the jurisdiction, and resources, to try and punish those accused of major war crimes and crimes against humanity; and a political and normative problem, the absence of any agreed principles for addressing mass atrocity situations.  

The first piece of good news is that a major part of the institutional problem has been remedied in recent years. There has been the development of a number of specialist national courts with international assistance, like the Special Court for Sierra Leone which has now convicted and imprisoned Charles Taylor and the Cambodian tribunal now trying three of the most senior Khmer Rouge cadres still alive (including Khieu Samphan, one of my key interlocutors when I was negotiating the Cambodia peace process in the late 1980s). There has been the establishment (following the example of the International Military Tribunal set up Nuremberg in 1945) of specialist tribunals to deal with war crimes committed in specific conflicts – in particular for the former Yugoslavia and Rwanda.  And, by far most importantly, there has been the establishment by treaty, the Rome Statute of 1998, of the International Criminal Court — setting up a permanent court to hear cases of genocide, crimes against humanity, and war crimes, with no time limitation on its ability to prosecute.

But all international law – as much as it pains international lawyers to confront this reality – is ultimately politics. International courts and tribunals don’t get established and resourced without political commitment; states don’t become party to them without political decision (of the kind for which the U.S., for one, has still found impossible to make in the case of the ICC, though I’m glad to say that Australian support for ICC has been strong and bipartisan from the beginning); cases don’t get referred, by a state party or the Security Council, without political decision; with no international marshals services, indictees can’t be arrested and transferred to the courts without the cooperation of relevant states; court decisions rely wholly on individual states for their implementation. All these problems have been very much evident in the first decade of operation of the ICC.

All of which means that while the international courts and tribunals, and other legal strategies, are important elements in the mass atrocity prevention and reaction toolbox, whether these tools are actually applied depends on political will – on international consensus about the relevant norms, and international cooperation in applying them. And it is that element of political will, and the practical cooperation which it makes possible, which has been profoundly lacking, not just for decades but for centuries, in the case of major war crimes and other mass atrocity crimes.

That brings us to the second piece of good news, that we have in the  last decade in fact taken a giant stride forward in addressing that question of political will with the  birth and evolution, of the new principle of “the responsibility to protect” (R2P for short). I do not pretend for a moment that we have yet solved the problem of mass atrocity crimes once and for all – how could I in the face of the totally unresolved mess in Syria? And there are innumerable implementation problems that will continue to arise every time the principle is invoked (for example the peace v. justice dilemma: whether amnesty or some other form of soft landing should be given to a manifestly guilty individual as part of a negotiated agreement designed to stop further carnage). But the reality is that we are closer to consensus now on the nature and extent of the international responsibility to respond to these crimes than we have ever been.

It was to deliberately address the political and normative problem, rather than the legal and institutional problem  – to find a way past this agonizing consensus-free zone – that the concept of the responsibility to protect (‘R2P’) was born: initiated in the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS), sponsored by the Canadian government which I co-chaired with the African diplomat Mohammed Sahnoun, and then, after a long, complicated and often cantankerous diplomatic process, endorsed unanimously by the UN General Assembly sitting at head of state and government level at the 2005 World Summit, in what has been described by the British political and Holocaust historian Martin Gilbert as ‘the most significant adjustment to national sovereignty in 360 years.’

There were, and remain, crucial differences between R2P and the ‘right of humanitarian intervention’, and it is a fundamental mistake to maintain, as some still do, that R2P is no more than old humanitarian intervention wine in a new bottle.  Most importantly, R2P is primarily about prevention, whereas humanitarian intervention is only about reaction. And R2P is about a whole continuum of reactive responses – from diplomatic persuasion, to pressure, to non-military measures like sanctions and international criminal court process, and only in extreme, exceptional and last resort cases military action, whereas humanitarian intervention is only about military reaction.

R2P involves three distinct levels of state responsibility. The primary responsibility is that of the sovereign state itself to its own people – one that is absolute, unconditional, and continuing – not to perpetrate or allow atrocity crimes on its territory (the so-called ‘Pillar I’). The second responsibility is that of others in the international community – including other states and intergovernmental organizations – to assist states to discharge that primary responsibility, if they are willing to be so assisted (‘Pillar II’). The third responsibility is that of others – if prevention fails, and a state is manifestly failing to protect its own people – to then provide that protection by every means prescribed, and circumscribed, by the United Nations Charter (‘Pillar III’).

Since 2005, there has been a long period of international discussion and argument about the meaning, scope and limits of R2P, in a variety of contexts.  But what we can now say, following the major debates in the UN General Assembly in 2009, 2010 and 2011 is that – even after the controversy about Libya, and the subsequent paralysis in the international reaction to Syria, which I will come back to shortly – it has won a remarkable degree of acceptance in principle. Secretary General Ban Ki-Moon was not exaggerating when he said in September last year, ‘Our debates are about how, not whether to implement the Responsibility to Protect. No government questions the principle’.

More or less parallel with the birth and evolution of R2P, we have had another important and closely related normative development, the emergence through the UN since 1999 of a set of principles and strategies addressing the Protection of Civilians in Armed Conflict (POC). The scope of this concept is wide ranging, including e.g. attention to the humanitarian impact of sanctions, and problems arising from mixing combatants and civilians in camps for refugees and internally displaced persons.  But probably its most important practical application has been in widening the scope of military peacekeeping mandates to ensure that there is capacity to deal forcefully with those who would violently disruptive – and to ensure in particular that there will be no more debacles in the future like Srebrenica in 1995, when 8000 men and boys were taken from under the unprotesting noses of UN peacekeepers and led to their slaughter.

The R2P and POC norms are very much sister concepts, and I am pleased to say that, like the ICC, both have been strongly supported, on a wholly bipartisan basis, by successive Australian governments.  They differ in just two respects, neither significant for present purposes. POC is broader than R2P to the extent that the rights and needs of populations caught up in armed conflict go well beyond protection from mass atrocities. But in one major respect the scope of R2P goes well beyond POC, in that it is concerned with preventing and halting mass atrocity crimes regardless of whether they occur in times of armed conflict. Cambodia in the mid-1970s, Rwanda in 1994, Kenya in 2008 and Libya at least at the time of the initial UN intervention in February /March 2011 are major examples of such one-sided violence, non-war situations.

Mention of Libya brings me to the last point I want to address, the current international paralysis over Syria – largely as a result of disagreement about how the Libyan military intervention was handled – and what this portends for future effective cooperation on war crimes and other mass atrocity issues.

In March last year, the United Nations Security Council, with no dissent, authorized the use of “all necessary measures” to protect civilians at imminent risk of massacre in Colonel Muammar el-Qaddafi’s Libya. Those lives were saved – and, if the Security Council had acted equally decisively and robustly in the 1990’s, so might those of 8,000 others in Srebrenica and 800,000 in Rwanda. I and many others hailed the agreement to intervene in Libya as the coming of age of the responsibility to protect (“R2P”) principle.

By comparison, however, the Security Council has been unable to agree on almost anything since the middle of last year on the manifestly worse case since of Syria  –not only on the extreme step of military force, but even on lesser coercive measures like targeted sanctions, an arms embargo, or referral to the International Criminal Court.

The hesitation partly reflects the very different geopolitics of the Syrian crisis: potentially explosive regional sectarian divisions, no Arab League unanimity in favor of tough action, a long Russian commitment to the Assad regime, and a strong Syrian army, which would certainly make any conceivable direct military intervention difficult and bloody. But there is more to it than that. Security Council consensus about when and how to apply R2P, so evident in February and March 2011, has evaporated in a welter of recrimination about how the NATO-led implementation of the Council’s Libya mandate “to protect civilians and civilian populated areas under threat of attack” was carried out.

Leading the critical charge have been the “BRICS” (Brazil, Russia, India, China, and South Africa). Their complaints are not really about the initial military response – destroying the Libyan air force’s infrastructure, and air attacks on ground forces advancing on Benghazi. Rather, they object to what came after, when it rapidly became apparent that the three permanent Security Council’s members driving the intervention (the United States, the United Kingdom, and France) would settle for nothing less than regime change, and do whatever it took to achieve it.

In particular, concerns have been raised that the interveners rejected ceasefire offers that may have been serious, struck fleeing personnel who posed no immediate risk to civilians, and attacked locations that had no obvious military significance (like the compound in which Qaddafi’s relatives were killed). More generally, the Western powers, along with Arab states like Qatar, comprehensively supported the rebel side in what rapidly became a civil war, ignoring an explicit arms embargo in the process.

The US, the UK, and France are quick with some answers. Protecting civilians in areas like Tripoli that were under Qaddafi’s direct control, they argue, required overturning his regime. If one side was supported in a civil war, it was because a regime’s one-sided killing sometimes leads civilians (as we have now seen in Syria) to take up arms to fight back (and to recruit army defectors).  These arguments have some force, but the US, the UK, and France resisted debating them in the Security Council, and other Council members were never given sufficient information to enable them to be evaluated. Maybe not all of the BRICS are to be believed when they say that more common ground could have been achieved had a better process been followed. But the Western powers’ dismissiveness during the Libyan campaign did bruise them – and those bruises will have to heal before any consensus can be expected on tough responses to such situations in the future.

The better news is that a way forward has opened up. Brazil in recent months has circulated a paper arguing that the R2P concept, as it has evolved so far, is fine, but needs to be supplemented by a new set of principles and procedures which it calls “responsibility while protecting” ( “RWP”). Its two key proposals are a set of criteria (including last resort, proportionality, and balance of consequences) to be taken into account before the Security Council mandates any use of military force, and a monitoring-and-review mechanism to ensure that such mandates’ implementation is seriously debated.

Initial reaction among the US, the UK, and France was almost contemptuous: “These countries would want all of those delaying and spoiling options, wouldn’t they.” But that attitude has begun to soften, as it must.  If an un-vetoed majority vote is ever going to be secured again for tough action in a hard mass atrocity case, even action falling considerably short of military action, the issues at the heart of the backlash that has accompanied the implementation of the Libyan mandate, and the concerns of the BRICS states in particular – voicing as they do the concerns of a much wider swathe of the developing world – simply have to be taken seriously.  

The completely effective implementation of R2P is, like the completely effective operation of the ICC, going to be work in progress for some time yet. Renewed consensus on how to implement it in the hardest of cases in future is going to be hard to achieve, and will take time to achieve: it will certainly come too late to be very helpful in solving the present crisis in Syria, for which the only alternative to a strongly Russian-supported diplomatic solution – still some distance away, and maybe completely unachievable – appears to be, unhappily, a full scale civil war bloodbath.

But I don’t think there is any policymaker in the world who fails to understand that if the Security Council does not find a way of genuinely cooperating to resolve these cases, working within the nuanced and multidimensional framework of the R2P principle, the alternative is a return to the bad old days of Rwanda, Srebrenica and Kosovo.

That means either total, disastrous, inaction in the face of mass atrocity crimes, or action being taken to stop them without authorization by the Security Council, in defiance of the UN Charter and every principle of a rule based international order. After all that has been achieved over the last decade, that would be heartbreaking. And, congenital optimist as I am, I believe it won’t happen.