The responsibility to protect: holding the line

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The responsibility to protect: holding the line

Gareth Evans

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.

5 - 10 - 2008

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.

Gareth Evans has been president of the Brussels-based International Crisis Group (ICG) since January 2000. He was Australia's foreign minister from 1988 to 1996. In 2000-01 he was co-chair of the international commission on intervention and state sovereignty (Iciss), appointed by the Canadian government; its report, The Responsibility to Protect, was published in December 2001

Gareth Evans is the author of The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All (Brookings Institution Press, October 2008)

Also by Gareth Evans in openDemocracy:

"Genocide in Sudan? An open letter to world leaders" (7 June 2004)

"A responsibility to protect: the world's view" (5 April 2007) - with Andrew Stroehlein)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.

A new norm

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:

▪ the conceptual one: ensuring that the norm's scope and limits are fully understood, so that it loses any capacity to frighten

▪ the institutional one: ensuring available diplomatic, civilian and military capacity to respond effectively to new situations as they arise

▪ the political one: ensuring that, when preventive or reactive action becomes necessary, the will is there to mobilise that capacity.

There are conceptual misunderstandings about R2P, real or contrived, which come from two directions:

▪ from those who view it too narrowly, as only about the use of force, and in that sense just a new bottle for the old wine of "humanitarian intervention"

▪ from those who see it too broadly, as covering every kind of human-security problem - from natural disasters to health pandemics.

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. Also in openDemocracy on the "responsibility to protect":

Chris Abbott & John Sloboda, "The 'Blair doctrine' and after: five years of humanitarian intervention" (22 April 2004)

David Mepham , "Darfur and the 'responsibility to protect'" (12 September 2006)

Carne Ross, "The United Nations and genocide" (1 November 2006)

An old habit

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-to-protect 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.

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Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All (Brookings Institution Press, October 2008)

Responsibility to Protect (R2P)

International Crisis Group

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Comments

Cathy Fitzpatrick said:

Tue, 2008-10-07 01:10

Gareth,

I'm personally made deeply uneasy by the RTP campaign, even though I participate in it, because I fear that we as NGOs overexposed ourselves by helping to create a norm we cannot sustain, that is beginning to seem like Xeno's Paradox.

There are two aspects to RTP that I think give it a "dark side" that continues to undermine it and make it particularly difficult for us to apply it effectively.

The first is that RTP was quite frankly and politically created as a solution to the problems implied by "Western imperialism" that had begun to accrue to the phrase "humanitarian intervention. At first, the winds of history were at the back of this phrase, with successes (at least seemingly, at least for a time) in conflicts like Kosovo and East Timor. But then came Darfur and Somalia again, and the phrase was no longer so handy.

I remember distinctly hearing the Russian legal scholar Boris Topornin rage that the concept of "humanitarian intervention" was tantamount to endorsing "human rights killing". The also concept acquired a kind of taint because of constant and shrill G77 drilling against it, not because of anything inherently wrong with the idea of making an intervention for humanitarian reasons, but because the proponents in the West were not without sin. The problem was that the West was at times selective or fault -- and the intervention didn't stick and developed all kinds of difficulties later (East Timor, and then of course Iraq and Afghanistan, which weren't explicitly undertaken in the name of humanitarian intervention anyway, although at times it has been invoked as a justification, i.e. bringing democracy, saving women's rights).

Thus the first aspect of the "dark side" of the term for some, even its original boosters, was that it had to be undertaken by imperfect Western states, with flawed execution.

So then the Canadians, and some of the other friends of protection of civilians in armed conflict, and Francis Deng, the Sudanese special rapporteur on internally displaced and then later genocide, came up with this other term. Deng, in particular, would speak eloquently about the idea of making states responsible to protect their own citizens. It was a way that he could get a foot into the door of even the world's worst hellholes, like Chechnya or Darfur, by saying that he was there to help states be states, to shore them up, to empower them, to let them know that nobody would be deliberately unseating them or intervening against them, but merely asking them to do what they should do for their subjects.

And there's the second dark aspect of the term, that it required a kind of gimmick, to tell states that you know are themselves responsible for massive civilian deaths not by accident, or lack of capacity, but by design, that they can stay in charge and presumably "protect" the people they were busy massacring a minute ago. This shill of RTP in this circumstance is undertaken with the best of motives and the worst of desperation -- trying to get into terrible zones of conflict to save lives -- but it leads to bad faith, and tocollusion, where we all pretend that "RTP" is a state's prerogative to be encouraged even in the face of the Big Lie, and where we pretend that a state "failing to protect" lacks, oh, sufficient equipment, or technical assistance to do the right thing.

Thus in reality, to enforce this concept of RTP, we have to keep undermining it, by asking those not fit to undertake it to enforce it, and enforce it with those who only undertake it in bad faith.

In reality, the Security Council members will tell you that they simply cannot make up a list of absolutes and generics and globalist premises that will enable them to invoke RTP in every case. They want to look at it on a case-by-case basis -- which essentially means more often than not, "not at all". For example in Sudan, where you'd think that RTP would eminently apply, they don't apply it -- it's not needed, it's not helpful, it's irrelevant.

Then comes a situation like Burma, when the West came make the case that it is not only bad faith, it is not only a junta bent on maintaining its total control and isolation, but an actual lack of capacity, so that even a military ship is warranted, because that's what can do the job. And so suddenly, we NGOs, who are keen to prevent suffering, and who were already working for democracy, appear to endorse militarization of humanitarianism, which we are in fact against, and appear to call for that "human rights killing" which so bothered Topornin. (I could add that somehow, the Dostoyevskian child's tear, for whose sake you would not start a violent revolution, was seldom a deterrent, and the idea of a "just war" does not seem relevant to him.)

The two problems I've identified of the "dark side" of RTP aren't the two weaknesses you identity -- overbroad application and overnarrow application -- rather, they are what occurs *when applying it*. But the reality is that neither "broad" nor "narrow" applications are actually made, except to get the "dialogue" going -- they are not being applied *as interventions* (if you can think of an actual situation in which it has been invoked *and* applied, provide one -- I just am not aware of any).

At this point, you have even more bad faith around the term -- people applying it retroactively, as an act undertaken by the Vietnamese in Cambodia, or currently, as an act applied by the Russians in Southern Ossetia against Georgia. Protection wasn't really the goal, and so not a lot of protection gets done in these kinds of situations.

We all grasp that we cannot invade Darfur. The U.S. is not going to launch a *third* front against an Islamic country, after Iraq and Afghanistan. Absolutely out of the question. It isn't even that the U.S. has a double game, "needing" Sudan for the "war on terror". It's that another invasion is just not on. The EU doesn't seem to have the appetite, and certainly Russia or China or South Africa would never taken it on, given their ideology against intervention, against forcibly demanding accountability, and for only accepting African-negotiated initiatives to end conflicts.

I'm baffled, then, as to what a "voluntary protection force" would be like. IFOR? But there *is* a voluntary protective force. It's called "UNAMIS". It has trouble deploying and even protecting itself, let alone civilians. Is there some notion that, say, a French-led force would somehow change those dynamics?

So why are we continuing to call for it in Darfur, asking Western leaders who can't apply it without adding to their global war against Islam, or asking the Government of Sudan to apply it, which is busy shelling the people it is supposed to protect?

Given your own explanation of why RTP couldn't take hold in Burma (international relief workers were let in before any real judgement call could be made about a crime against humanity) or in Russia (disingenuous, criteria not met), where *do* you think it can take hold?

At this juncture, I think you really have to ask why we should be calling on NGOs to "campaign hard" on this principle. Because we got it stated not in a detailed, binding treaty, but by the GA during the 2005 summit as a kind of declarative? What is this going to offer us -- or more importantly, the people really facing the loss of their lives or livlihoods in conflict? If we continue only to rack up cases where it is "too hard" to apply or "inappropriate" to apply, for what are we retaining this shining norm? Where? Norms are good when you can apply them, not just endlessly invoke them.

We already have so many ideal, shining norms that are honoured only in the breach. We didn't require "RTP" to engage in "never again" as we have the genocide treaty and all the other treaties. I wonder if we would not do better to retire this frenetic, hortatory, losing campaign around a slogan, and focus more on the existing treaties that accomplish much the same thing, by which states are bound and regularly reviewed for compliance.

Cathy Fitzpatrick

http://3dblogger.typepad.com/un_tethered

http://3dblogger.typepad.com/ngo_accountability

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