Mass Atrocities and the Use of Force: R2P After Libya and Syria

Panel Presentation by Professor the Hon Gareth Evans, Co-Chair, Global Centre for the Responsibility to Protect, to the Conectas International Human Rights Colloquium on Limits of the International Community and the Use of Force, Sao Paolo, Brazil, 16 October  2012

In March last year, following the Gaddafi regime’s failure in Libya to take any notice of a strong condemnatory resolution three weeks earlier, the United Nations Security Council, with no dissenting voices, authorized the use of coercive military force to ‘protect civilians and civilian populated areas under threat of attack’. The lives of thousands at imminent risk of massacre in Benghazi were saved as a result – and and if the Security Council had acted equally decisively and robustly in the 1990s, so might the lives of 8,000 others in Srbrenica ,and 800,000 in Rwanda, also have been saved.

At the time, I and many others hailed the agreement to so intervene as the coming of age of the responsibility to protect (‘R2P’) principle, unanimously embraced by the world’s governments in 2005. Its core idea – cutting across centuries of state practice treating sovereignty almost as a license to kill – is that that states must protect their own peoples from genocide and other mass atrocity crimes, and if they manifestly fail to do so the wider international community has the responsibility to act, by persuasion if possible but coercion if necessary.

But, just a few months later, the Security Council found itself paralysed over Syria, and has remained so ever since. Despite an outlook from the very beginning even worse than in Libya, and a death toll now much higher, it was not only unable to agree on the extreme step of military force (which is understandable and defensible enough, for reasons I’ll come back to), but nor could it agree on any lesser coercive measures like targeted sanctions, an arms embargo, or reference to the International Criminal Court that had earlier been imposed in Libya – or, for a long time, even just on any condemnation of the violence.

So why did consensus fell away? What can be done to re-establish it? Why does it matter that we re-establish consensus on what R2P means and how to apply it?

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Let me answer the last question first. If we lose the plot on R2P, and go back to where the world was in past decades on this issue, that will be a very unhappy place to be:

- In the decades after World War War, even after the horrors of the Holocaust and all the many developments in international human rights law and international humanitarian law that followed the War, catastrophic mass atrocity crimes continued to be, as had been the case for centuries, a regular occurrence behind sovereign state walls, with men, women and children being murdered, tortured, raped, starved or forcibly expelled for no other reason than their race, ethnicity, religion, nationality, caste, class or ideology.

- When it came to reacting to reacting to cases like Cambodia, East Pakistan, and Uganda in the 1970s and ‘80s, and Rwanda, Bosnia and Kosovo in the 1990s, there were no commonly accepted principles at all as to how the international community should react. By the ‘90s there was at least a debate about the issues but the appropriate policy response was a consensus-free zone.

- The only debate was about ‘humanitarian intervention’: the so-called ‘right to intervene’ using military force. Hardly anyone talked about prevention or less extreme forms of engagement and intervention.  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 powers had the right to throw their weight around in this way. And so we had all the division or inaction, or both, in the face of catastrophe that we can all remember.

It was to find a way through this agonizing lack of consensus that the concept of the responsibility to protect was born: initiated in the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS) which I co-chaired, 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.

We saw ‘R2P’ as having a much better chance of generating consensus than the previous ‘humanitarian intervention’ approach for three main reasons:

- First because it used much less impossibly divisive language:  turning the abrasive ‘right to intervene’ into the potentially much more acceptable  ‘responsibility to protect’.

- Secondly, by broadening the range of actors in the frame: whereas humanitarian intervention focused just on the international response, the new formulation spread the responsibility – starting with the spotlight on the sovereign state itself and its responsibilities and only then shifting to the responsibility of the wider international community, initially to assist and then to take other more  robust measures as necessary.  

- Thirdly, by dramatically broadening the range of responses: whereas  humanitarian intervention focused one-dimensionally on military reaction, R2P involves multiple elements in the response continuum, viz. preventive action both long and short term, reaction when prevention fails (with coercive military action only contemplated as an absolute last resort after multiple criteria are satisfied), and post-crisis rebuilding aimed  at preventing recurrence. 

Of course getting agreed words on paper is one thing, effective implementation in practice something else.  But even with the problems that have arisen over Libya and Syria, the story since 2005 has been one of steady progress.  When one looks closely at the contributions to the annual debates on Secretary-General’s reports on the subject in the UN General Assembly starting in 2009 –  even in 2011 and 2012 when anxiety about the conduct of the Libyan intervention was alive and well – it is impossible to deny that there is now a remarkable degree of acceptance of the basic principles of R2P, a steady increase in the number of instances in which those principles have been explicitly invoked, and now practically no voices at all challenging its foundations. Secretary General Ban Ki-Moon was not exaggerating when he said in September last year that now ‘Our debates are about how, not whether to implement the Responsibility to Protect.’

But, and it’s a very big ‘but’ indeed, we have to acknowledge that the debate about how to implement R2P in practice – at least at the sharp end, in the hardest cases, when prevention has manifestly failed and violence is actually occurring, and the question arises whether coercive military force should be used – has   become very fierce and very divisive. From the high point of consensus and cooperation we reached in the Security Council in February and March last year, with the resolutions over Libya (and Cote d’Ivoire as well) we have now plunged to a very low point indeed.

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So what went wrong, and how do we fix it?

Part of the reason for the paralysis over Syria, as compared with the speedy and effective response to Libya, is that the geopolitics of the Syrian crisis are very different, with potentially explosive regional sectarian divisions, no Arab League unanimity in favour of tough action, a long Russian commitment to the Assad regime, and a strong Syrian army meaning that any conceivable intervention would be difficult and bloody.

But there’s more to it than that. Security Council consensus about when and how to apply R2P in sharp-end cases of human rights catastrophe, so evident in February and March 2011, has simply 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 actually carried out.

Leading the critical charge, and with Brazil playing a prominent part throughout,have been the ‘BRICS’  (Brazil, Russia, India, China and South Africa). Their complaints are not about the initial military response – destroying Libyan air force infrastructure, and air attacks on the ground forces advancing on Benghazi – but what came after, when it became rapidly apparent that the three permanent member states driving the intervention (the US, UK and France, or ‘P3’) would settle for nothing less than regime change, and do whatever it took to achieve that.

Particular concerns are that the interveners rejected ceasefire offers that may have been serious, struck fleeing personnel that posed no immediate risk to civilians and locations that had no obvious military significance (like the compound in which Gaddafi relatives were killed) and, more generally, comprehensively supported the rebel side in what rapidly became a civil war, ignoring the very explicit arms embargo in the process.

The P3 is not without some answers to these charges. If civilians were to be protected house-to-house in areas like Tripoli under Gaddafi’s direct control, they say, that could only be by overturning his whole regime. If one side was taken in a civil war, it was because one-sided regime killing sometimes leads (as now in Syria) to civilians acquiring arms to fight back and recruiting army defectors.  Military operations cannot micromanaged with a ’1,000 mile screwdriver’. And a more limited ‘monitor and swoop’ concept of operations would have led to longer and messier conflict, politically impossible to sustain in the US and Europe, and likely to have produced many more civilian casualties.

And yet. These arguments all have force, but the P3 resisted debate on them at any stage in the Security Council itself, and other Council members were never given sufficient information to enable them to be evaluated. Maybe not all the BRICS are to be believed when they say that, had better process been followed, more common ground could have been achieved.  But they can be when they say they feel bruised by the P3’s dismissiveness during the Libyan campaign -- and that those bruises will have to heal before any consensus can be expected on tough responses to such situations in the future.

The good news is that there is a way forward, and it is this country – Brazil – that has shown the way, first with a statement by President Roussef in the UN General Assembly last September and then a paper circulated last November arguing that the R2P concept, as it has evolved so far, needs supplementing by a new set of principles and procedures  which it calls “responsibility while protecting” (“RWP”).

When stripped down to its bare essentials, RWP involves three core propositions:

 –  First, R2P, as endorsed in 2005 and as refined since, remains a valuable normative advance, not least in its strong focus on prevention of, as well as reaction to mass atrocity crimes, and whatever the issues involved in its  practical implementation, particularly in relation to the use of military force, the baby should not be thrown out with the bathwater: RWP is designed to complement R2P, not replace it.

–  Second, before acting under Pillar III of R2P, and under Chapter VII of the UN Charter, to endorse any use of coercive military force, more formal and systematic attention needs to be paid by the Security Council to relevant prudential criteria or guidelines (including in particular ‘last resort’, ‘proportionality’ and ‘balance of consequences’)

 –  Third, after such action has been taken, there should be enhanced UN Security Council procedures to monitor and assess the manner in which such mandates are interpreted and implemented.

Although the initial reaction to the Brazilian RWP proposal by the P3 powers was dismissive  –  ‘these countries would want all those delaying and spoiling options, wouldn’t they’ – this has begun to soften, as it must.  They have begun to realize, as they must, that 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.

It has become increasingly obvious – with, for example, many positive references to the Brazilian initiative in last month’s annual General Assembly debate on R2P – that the key to future consensus is further refinement and development of the RWP proposal. Let me conclude by giving you my own ideas on how this might be done, in relation to the two crucial elements – the use of criteria or guidelines before a military force decision is made, and a review process afterward.

Criteria. I think a useful way of approaching the criteria issue would be not just to single out, as the November 2011 Brazilian Elements note does, two or three criteria, but to return directly and deliberately to the so-far-unimplemented recommendations of my ICISS Commission and the reports which followed it, from the High Level Panel on Threats Challenges and Change, and from Secretary-General Kofi Annan himself. These recommendations are that the Security Council apply five specific prudential guidelines whenever considering any authorization of coercive military action (not just in R2P cases)  under Chapter VII of the Charter:

- First, seriousness of risk: is the harm occurring or being threatened of such a kind and scale as to justify prima facie the use of force?

- Second, primary purpose: is the use of force primarily intended to halt or avert the threat in question, whatever secondary motives might be in play for different states?

 -Third, last resort: has every non-military option been fully explored and the judgment reasonably made that nothing less than military force could halt or avert the harm in question?

 - Fourth, proportionality: are the scale, duration, and intensity of the proposed military action the minimum necessary to meet the threat?

- Fifth, balance of consequences: will those at risk ultimately be better or worse off, and the scale of suffering greater or less?  Will more good than harm be done?

I think it’s important to note at the outset that while the immediately recognisable pedigree of these criteria is to be found in Christian ‘just war’ theory going back to the early Middle Ages, these themes do resonate equally with other major world religious and intellectual traditions, including Islam, Judaism, Buddhism and Hinduism and Sikkism, and there is a whole body of literature describing this.

For all the universal values which such benchmarks clearly seem to embody, talk of adopting them as any kind of a basis for Security Council decision making tends to generate an immediate backlash, with states saying ‘rigid criteria’ would be impossible to apply given all the variability and fluidity of real world situations, and that (and this language is in the latest SG’s report) ‘templates’ are to be avoided. But these objections in my view greatly overstate the case, and sometimes simply conceal a preference for behaving in a completely ad hoc fashion, in accordance with perceptions of immediate national interest involved rather than the real objective needs of the situation on the ground.

I would envisage the criteria I have listed being described simply as ‘guidelines’ to which ‘the Security Council should have regard’ in making decisions under Chapter VII authorising the coercive use of military force.  If the Security Council were able to reach an informal understanding among its members to so act case by case, this would be almost as useful as embodying such guidelines in a formal Security Council or General Assembly resolution, and would avoid what could possibly be a painful and protracted debate about abstractions.

What would actually be achieved by the Security Council ‘having regard’ to these guidelines? Clearly they could not guarantee consensus in any particular case, but by requiring systematic attention to all the relevant issues – which simply does not happen at the moment – they would hopefully make the achievement of consensus much more likely. Would anyone really want to argue that any one of these guidelines are irrelevant or wrong-headed, and should be ignored or overridden – that military force should be used although it wasn't demonstrably necessary to halt or avert the harm in question, that disproportionate force should be used, or that military force should be used though it would do more harm than good?

It is not a matter of satisfying a court of law about  any of these guidelines – last resort, proportionality, the balance of consequences and so on. The courts in question are of rationality, public opinion, and peer group understanding – and if a strong, credible and articulate case cannot be publicly made and defended under all five of the headings I have mentioned, then scepticism and cynicism about the proposed use of force in any particular case is likely to be justified.

There is one further virtue in spelling out these guideline.  It would make it abundantly clear from the outset just how different coercive military action is to other response mechanisms, and how many hurdles should have to be jumped before ever authorizing it: that it is something that should not be contemplated as a routine escalation, but only in the most extreme and exceptional circumstances.

If such criteria were able to be agreed, and applied with some rigour and consistency to new situations as they arise, it should be a lot easier to avoid the “slippery slide” argument which has contributed to the Security Council paralysis on Syria, making some countries unwilling to even foreshadow non-military measures like targeted sanctions or ICC investigation because of their concern that military coercion would be the inevitable next step if lesser measures failed.

Process.  I will be much briefer about the issue of an appropriate process for monitoring and reviewing use of force mandates once granted, although this is an issue which again tends to generate more heat than light.

In some cases reviewing implementation of an R2P-based will be quite straightforward. When what is involved– as with Cote d’Ivoire last year – is simply adding extra dimensions of force authorisation to an already mandated UN peacekeeping mission, then the issue of monitoring and reviewing the mandate in question is unlikely to be problematic: the performance of the mission is already regularly scrutinised under existing Security Council procedures.

The trickier situation is when an explicit R2P mandate like that in Libya under UNSCR 1973 in March last year is given, which leaves the responsibility to implement it to member states acting otherwise than through a specifically endorsed and UN-organised mission.  The member states in question will almost by definition be large and powerful, and may be unlikely – as was the P3 with Libya – to welcome regular close scrutiny of what they are doing.  But they should be prepared to accept, at least informally, the obligation to report back to the Council at regular intervals, describing fully how the mandate in question is being interpreted and applied, and the progress of the situation on the ground, allowing full debate in the process on whether the continuance of the mandate in its present form is justified, and whether its terms require modification in some way.

Again it is not so much a matter of holding member states in some way legally to account: it’s a matter of recognising that unless the courts of rationality, public opinion and peer group understanding can be broadly satisfied, then destructive cynicism and scepticism about these interventions is bound to grow.  And the prospect of being able to repeat them in future, with the support and authority of the Security Council, which is what a rule based international order requires, will be negligible.

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The completely effective implementation of R2P is 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.

But I think it can be achieved, with the RWP proposal, further refined and developed, playing a critical role as a circuit-breaker. 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. Being the congenital optimist that I am, I believe that won’t happen, and that sanity and decency will prevail.  But we are all going to have to work hard, with Brazil  continuing to play a leading role in this respect, to ensure that it does.