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The Responsibility to Protect: Theory and Practice

Presentation by Professor the Hon Gareth Evans, Australian National University, to China Institute of International Studies (CIIS) Conference on Responsible Protection: Building a Safer World, Beijing, 17 October 2013                     

The Problem. The emergence of the ‘Responsibility to Protect’ (R2P) was a response to a real international problem: the continuing inability of the international community, notwithstanding the embrace of the Genocide Convention and many other new international human rights standards after World War II, to effectively prevent or halt mass atrocity crimes – viz. genocide, ethnic cleansing and other major crimes against humanity and war crimes – occurring behind sovereign state borders.

The issue came to a head with the horrifying massacres in Rwanda and Bosnia in the 1990s, and the complete absence of international consensus, in the UN Security Council  (as shown again with Kosovo in 1999) or anywhere else, around the North-sponsored idea of “humanitarian intervention’. While troubled by these atrocities, countries of the global South – many newly independent, conscious of their fragility, and very conscious of the impact of “civilising” interventions from the imperial and colonial powers in the past – were, understandably, unwilling to acknowledge any general ‘right to intervene’ militarily in any state, whatever the circumstances. The flag under which they marched was a very narrow reading of  the non-intervention language of Article 2(7) of the UN Charter.

But that left unanswered the challenge posed by UN Secretary-General Kofi Annan in his 2000 Millennium address 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.

Birth of a Solution.  It was to answer that challenge, and try to build a new international political consensus, that the Canadian sponsored International Commission on Intervention and State Sovereignty (ICISS) came up in 2001 with the concept of “R2P”. As subsequently refined, and endorsed unanimously by more than 150 heads of state and government sitting as the UN General Assembly at the 2005 World Summit, the new doctrine had three key dimensions:

  • its language, which re-characterized the issue as not being about the “right” of big states to throw their weight around militarily, but rather the “responsibility” of all states to act to protect their own and other peoples from mass atrocity crimes;
  • its spreading of that responsibility: every state had the responsibility to protect its own people; other states had a responsibility to assist them to do so; and – if a state was manifestly failing, as a result of either incapacity or ill-will, to protect its own people – the wider international community then had a responsibility to act more decisively; and  
  • its broadening the range of appropriate responses. Whereas ‘humanitarian intervention’ focused one-dimensionally on military reaction, R2P involves multiple elements across 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 of the harm in question. The ‘reaction’ element, moreover, was itself a nuanced continuum, beginning with persuasion, moving from there to non-military forms of coercion of varying degrees of intensity (like sanctions, or threat of international criminal prosecution), and only as an absolute last resort contemplating coercive military force.

Growth to Maturity. The period from 2005 to 2011 saw the gradual growth to the maturity of the new norm. Conceptual arguments as to its precise scope and limits were largely resolved; rearguard political resistance to it fell right away (as evidenced by successive annual UN General Assembly debates from 2009 onwards); new institutional mechanisms and processes to facilitate its application gradually evolved; and it was being seen as increasingly relevant in practice – most obviously and importantly in Kenya in early 2008, when a diplomatic mission led by Kofi Annan under the auspices of both the UN and African Union, and explicitly invoking R2P, successfully defused what was rapidly deteriorating into a Rwanda-scale catastrophe.

When in 2011 the UN Security Council itself took military action explicitly under the R2P banner, in the cases of Cote d’Ivoire and Libya, this was widely heralded as the coming of age of the new norm. Libya especially, at least at the outset, seemed a textbook example of how R2P is supposed to work in practice, in the face of a rapidly unfolding mass atrocity situation: with a unanimous condemnatory and sanctions-imposing resolution first being passed, followed – when it seemed clear to everyone that new atrocities were imminent – by the authorisation of military measures “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 in Benghazi and elsewhere 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.

Mid-Life Crisis? But with the apparent maturity of R2P also came a mid-life crisis. As time went 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 of course finally accomplished with the overthrow of Gaddafi in October that year.

Unhappily, that criticism translated into Security Council paralysis in responding to what rapidly became the even more alarming situation in Syria. From mid-2011, all the way through until September 2013, when the use of chemical weapons – the most extreme atrocity crime of all – fundamentally changed the dynamics of the Syrian situation, the Security Council could agree on almost nothing at all: not only on the extreme step of military force (as to which there have been many good reasons not to act) but even on lesser coercive measures like targeted sanctions, an arms embargo, or referral to the International Criminal Court. The attitude seems to have been ‘give the P3 (US, UK and France) nothing that they want, because if you give them anything they will take everything’.

Although the P3 continue to be very defensive about their implementation of the Libyan mandate, the truth of the matter is that unless and until there is some recognition of what went wrong there, it will be extremely difficult ever again to secure an un-vetoed majority vote for tough action – even action falling considerably short of military action – in a hard mass atrocity case, at least if it does not involve the use of weapons of mass destruction.  The concerns of the BRICS states simply have to be taken seriously, voicing as they do the concerns of a much wider swathe of the developing world.

The Future of R2P: Responsible Protection.  The overall situation for R2P is not at all bleak. In this year’s annual General Assembly debate on R2P in mid-September, in which 68 countries – more than ever before – participated, there was overwhelming support for its basic principles; and that support was repeated two weeks later in many strong leaders’ statements in the general debate opening the new session. The Security Council, for all its divisions over Libya and Syria, has continued to use explicit “R2P” language where appropriate, for example in resolutions on Yemen and South Sudan and Mal,  and also  presidential statements on the role of prevention in international peace and security and, most recently, the humanitarian situation in Syria. As Secretary-General Ban Ki-moon has repeatedly said, “Our debates are now about how, not whether, to implement the Responsibility to Protect.”

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, but it is crucial that an effort be made to re-establish the kind of consensus evident at the time of the original Cote d’Ivoire and Libya decisions in 2011.  The most productive way forward in achieving this would seem to be to develop the idea of ‘Responsible Protection’ – the theme of this conference – in particular by giving some life to the idea of ‘Responsibility While Protecting’ (RWP) introduced into the debate by Brazil in 2011, not as a substitute for R2P but as a complementary principle living alongside it. As it has evolved over the last two years, RWP has two core elements: 

  • First, there should be 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, and subsequent  UN reports, have long argued); and
  • Second, there should be 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.

If the Security Council does not find a way of genuinely cooperating to resolve the hardest cases, working within the nuanced and multidimensional framework of the R2P norm – hopefully extended and reinforced by some embrace of RWP ideas – the alternative is bleak: 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 desperately disappointing.

But policymakers now around the world – including here in China, with this conference itself some some evidence of that – do understand the stakes much better than they used to, and I am confident that the imperative of our common humanity will eventually prevail.