Ending Mass Atrocity Crimes: A Hopeless Dream?

Humanitas Visiting Professorship in Statecraft and Diplomacy 2013 Lecture by Professor the Hon Gareth Evans AC QC FASSA, University of Cambridge, 10 May 2013

As we look back at not only what has been happening over the last two years in Syria, but over recent decades, and indeed over the whole course of human history, one of the most depressing and distressing realities we have to acknowledge has been the world’s inability to prevent or halt the apparently endlessly recurring horror of mass atrocity crimes occurring within state borders – the murder, torture, rape, starvation, expulsion, destruction of property and life opportunities of others for no other reason than their race, ethnicity, religion,  nationality, cast,  class,  ideology or opinion.

Over and again, for many decades, certainly since the Holocaust we have been saying “never again” – then finding ourselves, in the face of a Cambodia, a Rwanda, a Bosnia, a Darfur, a Sri Lanka – saying it yet again, asking ourselves, with a mixture of anger, incomprehension and shame, how could we have let it happen again.

The story I want to tell you in this lecture is that we have, at last, begun the process of normative and institutional change which will hopefully mean us asking that question much less frequently in the future – and maybe, just maybe, if the dream can be realized, never having to ask it again. The story is about the conception, birth, and growth to maturity, within a remarkably short ten-year period, of a new international norm – ‘the responsibility to protect” – first articulated in the report of that name in 2001 by the Canadian-sponsored Commission I co-chaired with the African diplomat Mohamed Sahnoun, and then four years later unanimously endorsed by the more than 150 heads of state and government attending the 2005 World Summit on the occasion of the UN’s 60th anniversary.

The historian Martin Gilbert has described the responsibility to protect 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. The course of events up to early-2011 seemed to bear this out, as various political, conceptual and institutional challenges were successively overcome and rhetoric started to be translated into effective action.

What has punctured the optimism that the world might at last be on its way to ending internal mass atrocity crimes once and for all – and created something of a mid-life crisis for the responsibility to protect – is the controversy that erupted in the Security Council in mid-2011 about the way the norm was applied in the NATO-led intervention in Libya, and the paralysis that in turn generated in the Council’s response to Syria.  I believe that – like most mid-life crises – this one will prove survivable, for reasons I will spell out, and that the dream is not at all hopeless, but I can’t pretend that its full realization will not be work in progress for a long time to come.

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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, not much more than a decade ago, at the end of the1990s.  For centuries, all the way back to the birth of recorded history, mass atrocities had been a matter of indifference to almost everyone but their victims, and the birth of the modern Westphalian system of recognized sovereign states did nothing much more than institutionalize that indifference in the case of such crimes committed behind state borders.  It is not too much of an exaggeration to say that sovereignty was seen essentially as a license to kill.

The extraordinary thing is how little changed after the horrors of the Holocaust and Second World War. Despite the post-War recognition of “crimes against humanity” in the Nuremberg Tribunal Charter; despite the Genocide Convention; despite the Universal Declaration and International Covenants on Human Rights; despite the 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 of the 1940s, 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 after initial hopes 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 in breach of international law – taken without Security Council authority because of a threatened Russian veto.

Throughout the decade 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” (droit d”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.

Newly independent states in particular, proud of their recently won sovereignty, often conscious of their fragility and in many cases 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 domestic 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.

Secretary-General Kofi Annan laid down the challenge a heartfelt plea in his 2000 Millennium Report to the General Assembly:

If humanitarian intervention is indeed an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that offend every precept of our common humanity?

It was to answer this challenge that the Canadian government established the International Commission on Intervention and State Sovereignty (ICISS), and it was in the report of that commission, published in 2001, that the responsibility to protect (or “R2P” as it is widely now abbreviated) was conceived. Our primary task, as we saw it, was to come up with something which built bridges, rather than burned them, between North-perceptions and South-perceptions; which made clear that there were other response options apart from “sending in the Marines” or “doing nothing”, and 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 sought to meet these objectives in four 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.

Second, we broadened the range of actors in the frame. Whereas “the right to intervene” focused just on international actors able and willing to apply military force, 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 to assist, or engage more robustly.

One crucial intellectual underpinning for our approach was the development of the idea of “sovereignty as responsibility” by Francis Deng – later to become the UN Special Adviser on Genocide – and his colleagues at the Brookings Institute, especially Roberta Cohen, born out of his experience in the 1990s as the UN Secretary General’s representative on Internally Displaced Persons. The notion that sovereignty in the post-UN Charter world was not just about control, but carried with it obligations to one’s own people (and the wider international community) was an important building block for the R2P story we were constructing.

Third, 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 in the most extreme and exceptional cases contemplating coercive military force.

And fourth, we tried to clarify what those extreme and exceptional cases might be by identifying a set of prudential criteria for the use of coercive military force which might be applied by the Security Council in deciding when and how to act.  There were five guidelines, together intended to set a very high bar against military intervention. First, seriousness of risk: is the threatened harm of such a kind and scale as to justify prima facie the use of force? Second, is the primary purpose of the proposed military action to halt or avert the threat in question, whatever other secondary motives might be in play? 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, and usually the toughest legitimacy test, balance of consequences: will those at risk ultimately be better or worse off, and the scale of suffering greater or less? 

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Articulated this way, the new concept did gain remarkable international traction within a very short time, and in fact has had one of the fastest take-ups ever of any new idea in the global arena. Although its initial impact was dulled by the publication of the ICISS report shortly after 9/11, which took the air out of every international debate on anything other than terrorism, its supporters ground away, and after two further reports (by a High Level Panel appointed by the UN Secretary General, of which I was fortunate to be a member, and by Secretary-General Annan himself) R2P 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 it had been embraced in a Security Council resolution.

That this happened was anything but inevitable. A fierce rearguard action was fought almost to the last in the General Assembly by a small group of developing countries, joined by Russia, who basically refused to concede any kind of limitation on the full and untrammelled exercise of state sovereignty, however irresponsible that exercise might be. What carried the day in the end was persistent advocacy particularly by sub-Saharan African countries, led by South Africa (who collectively took the view that the sin of indifference to mass atrocity crimes was worse than the sin of intervention); but with this, very importantly, supplemented by a clear – and historically quite significant – embrace of limited-sovereignty principles by the key Latin American countries.

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 annual reports to the General Assembly from 2009 onwards by the Secretary-General (written by his Special Adviser on R2P, Edward Luck) – the scope of the R2P 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  I do not believe that criticism is at all warranted.

The narrowing that took place in Paras 138 and 139 was simply a more precise definition of the threshold for the application of the doctrine – in terms of the occurrence or anticipation of “four crimes” (“genocide, war crimes, ethnic cleansing and crimes against humanity”), as compared with the ICISS definition of “a population suffering serious harm”– which made some states nervous about potential overreach. Making the threshold triggers narrower but deeper made for a stronger, not weaker, R2P.

The major refinement that has taken place has been the characterization of the relevant responsibilities in terms of “three pillars”. This was implicit in the 2005 language, and in the ICISS report before it, but was made explicit in the 2009 Secretary-General’s report to the General Assembly, which has become a key reference document in itself. 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 as a last resort 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 this has proved extremely helpful in practice in getting the great majority of states to understand and accept the multidimensional nature of what is involved, and has given the doctrine greater political force and effect than it would have otherwise have had.

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But words on UN paper are one thing, implementation something else. It took three more years of often-tortured argument about R2P’s scope and limits before the new norm first showed its bite in 2008 in Kenya, and another three before it seemed to have finally come of age with its application by the UN Security Council in the critical cases of Cōte d”Ivoire and Libya in 2011. There were political rearguard actions to fight off, conceptual challenges to resolve, and practical institutional changes to make, and all this took time.

The first major rearguard political challenge to the 2005 resolution, by those who had never really accepted it, came with the debate in the UN General Assembly on the occasion of the first Secretary-General’s report on R2P in 2009. But it became apparent, by the conclusion of that debate, that out of the whole UN membership, there were only four states who wanted to go so far as to overturn the whole 2005 consensus: Nicaragua, Venezuela, Cuba, and Sudan.  And since then, in subsequent annual debates, even after the implementation of the Security Council’s mandate in Libya drew wide criticism from mid-2011 onwards, opposition voices have been even more muted. 

As to conceptual issues, a good deal of often-confused debate continued among policymakers for some years after 2005 as to what are, and are not, “R2P situations”. But as successive cases have arisen and been debated, more and more consensus is evident on its scope and limits.  To take a range of the more controversial of them, I think it would now generally be agreed by policymakers (some academics remain more difficult to persuade) that:

• the coalition invasion of Iraq in 2003 and Russia’s invasion of Georgia in 2008 were not justified in R2P 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 R2P case (contrary to the views of then French Foreign Minister Kouchner), but could have been if the generals’ behaviour had continued long enough, which in the event it did not, to be characterizable 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 although 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 characterized as R2P cases; and that
• post-election Kenya in early 2008 was an absolutely clear-cut case of an exploding situation being widely, and properly, characterized in R2P terms (and at the same time an important demonstration that an effective R2P response could take a diplomatic rather than coercive military form).

Further evidence of the growth to maturity of R2P in the years since 2005 lies in the institutional efforts that have been made to develop the preparedness – diplomatic, civilian, military and legal – to deal with future situations of mass atrocity crimes. The UN Joint Office – bringing together the Secretary-General’s Special Advisers on the Prevention of Genocide and on R2P – is, after several years of frustrating prevarication, making its voice increasingly heard. Within key national governments (with the U.S., interestingly, playing a leading role in this respect) 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 energize the appropriate action throughout their respective systems.

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 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.”

An important parallel institutional development, not directly attributable to R2P but contributing enormously to the new norm’s actionable effectiveness, has been the rapid development of international criminal law institutions: specialist national courts established with international assistance, like the Special Courts for Sierra Leone and Cambodia; specialist tribunals to deal with war crimes committed in specific conflicts – in particular for the former Yugoslavia and Rwanda; and, most importantly, the International Criminal Court, established as a permanent court by the Rome Statute of 1998 to hear cases of genocide, crimes against humanity, and war crimes, with no time limitation on its ability to prosecute.

There has also been, running more or less in tandem with the birth and evolution of R2P, 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, for example, 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. In an important further recent development, the Security Council in March 2013 (Resolution 2098) for the first time authorized, in the context of the long-stressed MONUC peacekeeping operation in the Congo, the creation of an “Intervention Brigade” explicitly tasked to mount, for both protection of civilians and stabilization purposes, not just reactive but offensive operations

The R2P and POC norms are very much sister concepts. 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.

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Although the Security Council had endorsed R2P in general terms as early as April  2006 (in the context of a thematic resolution on POC, demonstrating the close connection between the two concepts as just described), it was not until 2011 that the UN Security Council itself took action explicitly under the R2P banner. But when it did so, in the cases of Cote d’Ivoire and Libya, this was widely heralded (including by me) as the coming of age of the responsibility to protect.  Libya especially, at least in February and March of that year, was a textbook example of how R2P is supposed to work in the face of a rapidly unfolding mass atrocity situation during which early-stage prevention measures no longer have any relevance.

In February 2011, Gaddafi’s forces responded to the initial peaceful protests against the excesses of his regime, inspired by the Arab Spring revolutions in Tunisia and Egypt, by massacring at least several hundred of his own people. That led to the unanimous UN Security Council Resolution 1970, which specifically invoked “the Libyan authorities’ responsibility to protect its population”, condemned its violence against civilians, demanded that this stop and sought to concentrate Gaddafi’s mind by applying targeted sanctions, an arms embargo and the threat of ICC prosecution for crimes against humanity.

Then, as it became apparent that Gaddafi was not only ignoring that resolution but planning a major assault on Benghazi in which “no mercy or pity” would be shown to perceived opponents, armed or otherwise—his reference to “cockroaches” having a special resonance for those who remembered how Tutsis were being described before the 1994 genocide in Rwanda—the Security Council followed up with Resolution 1973 three weeks later, also invoking R2P, which, by majority vote with no Russian or Chinese veto or other dissenting voices (although a number of abstentions) explicitly authorized “all necessary measures” by member states, i.e. military intervention, “to protect civilians and civilian populated areas under threat of attack”.  Acting under this authorization, NATO-led forces took immediate action, and the feared massacres did not eventuate. If the Security Council had acted equally decisively and robustly in the 1990s, the 8,000 murdered in Srebrenica and 800,000 in Rwanda might still be alive today.

But with the apparent maturity of R2P also came a mid-life crisis. As the weeks and months wore on, the Western-led intervention came under fierce attack by the BRICS countries – Brazil, Russia, India, China and South Africa – for exceeding its narrow civilian protection mandate, and being content with nothing less than regime change, which was finally accomplished with the overthrow of Gaddafi in October 2011. The trouble was that, in responding to what rapidly became the even more alarming situation in Syria from mid-2011 onwards, that disagreement has translated into an inability of the Security Council to agree on almost anything at all – 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.

Part of the reason for hesitation in Syria – and certainly the unwillingness to even begin to think about coercive military intervention – is that the geopolitics of the Syrian crisis are very different: complex internal sectarian divisions with potentially explosive regional implications, anxiety about the democratic credentials of many of those in opposition, 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. Consensus about doing anything did simply evaporate 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.

The complaints of the BRICS, all of whom were sitting on the Security Council at the relevant time – in an interesting foretaste of the kind of Security Council membership more representative of current world power balances that many of us have been arguing for – have not really been about the initial military response: destroying Libyan air force infrastructure, and air attacks on the ground forces advancing on Benghazi. Rather the concern was about what came after, when it became rapidly apparent that the three permanent Council-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 were 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 are not without some answers, in particular that if civilians were to be protected house-to-house in areas like Tripoli under Gaddafi’s direct control, that could only be by overturning his whole regime. But while these and other arguments have force, 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.

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The better news is that a way forward has opened up. Brazil initiated a debate at the end of 2011, that has been continuing since, by suggesting that consensus on the Security Council might be able to be recreated in these hardest of cases, if the idea could be accepted of supplementing R2P, not replacing it, with a complementary set of principles and procedures which it has labeled “responsibility while protecting” or “RWP”. The two key proposals are, first, for a set of prudential criteria (including in particular “last resort”, “proportionality” and “balance of consequences”) to be fully debated and taken into account before the Security Council mandates any use of military force (which is something for which my own Commission argued back in 2001); and for some kind of enhanced monitoring and review processes which would enable such mandates to be seriously debated by all Council members during their implementation phase, with a view to ensuring so far as possible that consensus is maintained throughout  the course of an operation.

The initial reaction by the P3 powers to the Brazilian RWP proposal when it was first articulated was very sceptical – “these countries would want all those delaying and spoiling options, wouldn’t they” – but their Syrian experience has begun to compel some rethinking. The reality is 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, simply have to be taken seriously, voicing as they do the concerns of a much wider swathe of the developing world.

There are bound to be acute frustrations and disappointments and occasions for despair along the way, but that should not for a moment lead us to conclude that the whole R2P enterprise has been misconceived. There is effectively universal consensus now about its basic principles – that is very clear from the annual debates which have taken place in the General Assembly every year since 2009, including in 2011 and 2012 when disaffection over the Libya mandate issue was at its height. It is true that there has been more visible enthusiasm expressed, in many state contributions, for the general obligations involved in Pillars One and Two, than there has been for the more challenging demands of Pillar Three – and also true that there is widespread recognition that there is always likely to be disagreement about how best to respond to a catastrophically deteriorating situation.

But none of this has translated into any continuing challenge to the notion that timely and decisive collective action may indeed be necessary where a state is manifestly failing to meet its responsibility to protect its own people. As Secretary General Ban Ki Moon put it in 2011:  “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.” Moreover the Security Council, for all its divisions over Libya and Syria, has continued since those divisions to use explicit “R2P” language where appropriate, for example in resolutions on Yemen and South Sudan and a presidential statement on the role of prevention in international peace and security.

The disagreement in the UN is really only about how it is to be applied in the hardest of cases. Given the nature of the issues involved, that’s not unexpected  – and it can certainly be assumed that only in the most extreme and exceptional cases will coercive military intervention be authorized by the Security Council .

What is much better now understood by policymakers now around the world – even if they are not always acting accordingly – is 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. And 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 in the last decade, that would be heartbreaking. Being the congenital optimist that I am, I believe it won’t happen, and that sanity and decency will prevail. But all of those of us who care are going to have to work very hard to ensure that it does.