The following article written by Prof. the Hon. Gareth Evans was originally published on opendemocracy.net.
A new principle underlying the defence of peoples from atrocity won acceptance from the international community in the mid-2000s. It needs to be both reaffirmed and clarified, says Gareth Evans of the International Crisis Group.
The concept of “the responsibility to protect” was unanimously endorsed by the United Nations general assembly in 2005, meeting at summit level on its sixtieth anniversary. The core underlying sentiment was clear enough: whatever else we might mess up in the conduct of international affairs (the assembled heads of government in effect agreed), let us at least get right our collective response to genocide and other mass-atrocity crimes, and never again have to explain or apologise for letting catastrophes unfold like those in Cambodia, Rwanda and Srebrenica.
It had taken a long time to reach consensus on this issue. For the centuries before the modern state system emerged, mass atrocities were a matter of indifference to all but their victims. For the centuries after the Peace of Westphalia (1648), that indifference was institutionalised: what happened within the boundaries of sovereign states was no other state’s business. Even after the holocaust – and the universal declaration of human rights and the genocide convention that followed it – international concern for individual human rights was still balanced by the UN charter’s stricture against intervention “in matters which are essentially within the domestic jurisdiction of any state”.
Throughout the successive horrors of the 1990s in Africa and the Balkans, consensus remained just as elusive. “Humanitarian intervention” was a rallying-cry in the global north, but commanded immense suspicion in the global south: for a great many newly independent countries, conscious both of their fragility and the destructive role of missions civilisatrice in the past, sovereignty had to be absolutely inviolable.
The breakthrough came when the Canadian-sponsored International Commission on Intervention and State Sovereignty (Iciss) proposed in 2001 that the normative rallying cry of “the responsibility to protect” replace “the right to intervene”. Sovereign states would retain the primary responsibility to protect their own people from mass-atrocity crimes. But if they manifestly failed to do so, through either incapacity or ill will, then it became the collective responsibility of the international community to take appropriate action: sovereignty conveyed no immunity when massive human-rights violations were involved. That said, the emphasis throughout was on prevention, and assistance for states in need, and for any further response to be by the least coercive and intrusive effective means possible. Military force might in some cases be ultimately needed, but only very exceptionally, and as a last resort, with UN Security Council approval.
It took only four years – just a blink of an eye in the history of ideas – for these principles to be adopted, without dissent, by the UN; they became paragraphs 138-9 of the outcome document of the world summit on 14-16 September 2005. But celebration remains premature: it is one thing to have a new norm of international behaviour up in lights, and quite another for it be effectively applied in practice. Three big challenges remain for “R2P”, as the norm is now routinely called:
There are conceptual misunderstandings about R2P, real or contrived, which come from two directions:
Both perceptions are counterproductive to the basic objective. This is to ensure that when the next conscience-shocking case of genocide, ethnic cleansing or other major crime against humanity or war crime occurs, the reflex reaction of the international community will be to immediately accept that something must be done, with the only argument being about what will work best.
It is crucial, accordingly, for supporters of R2P to be very clear-headed in explaining when it is, and is not, applicable. As good an example as one can find of the responsibility to protect in practice was the response to the post-election explosion of ethnic violence in Kenya in January 2008. There was (in strong contrast to Rwanda in 1994) a reflex international response, the situation was immediately described and understood as an “R2P” one, and effective intervention took a diplomatic rather than military form.
The continuing case of Darfur, by contrast, is an agonising example of a clear-cut R2P case (with the government of Sudan unable or unwilling to halt atrocity crimes) – but one where the international response has so far been very ineffective. The problem has not been the unwillingness to send in an invasion force (which would almost certainly make the situation much worse in both Darfur and South Sudan), but to deploy an effective voluntary protective force, and to apply overwhelming pressure on Khartoum. Darfur does not show, as some claim, that R2P is dead or irrelevant – only that there are some real-world cases where applying it is extremely difficult.
Some other cases in 2008 said by some to be R2P ones have essentially been mislabelled. The lamentable initial response of the Burmese generals to cyclone Nargis in May led to calls for military intervention on R2P grounds. But this could only have begun to be appropriate if the regime’s life-threatening behaviour had been so deliberate, or recklessly negligent, as itself to constitute a crime against humanity under international law. And the jury was still out on that when, under strong international pressure, the necessary international relief was allowed in.
Russia described its invasion of Georgia in August as an R2P case, but it was not. If the rationale was to protect its own nationals, as claimed, the appropriate principle was self-defence (justified, if at all, by Article 51 of the UN charter). If it was, rather, to protect suffering non-citizens, then it did not begin to satisfy any of the criteria that must apply to justify the use of military force – not least the proportionality of the response to the harm threatened.
All these issues are going to be debated again soon in the UN general assembly. If the world is not to slip back into the terrible old habits of cynicism and indifference toward mass- atrocity crimes, it is crucial that like-minded governments and key civil-society organisations campaign hard to hold and consolidate the gains that have been won. The embrace of the responsibility-toprotect norm has, for the first time in human history, made it thinkable that we will never again have to say “never again”. It would be a tragedy if that huge step forward for human rights were now to be eroded.