R2P: Ending Mass Atrocity Crimes with Gareth Evans

Garth Evans
Keynote Address on the Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All

Gareth Evans, President of the International Crisis Group, gave the keynote address this morning to conclude UN Week 2008 in Washington, D.C. He argues that whatever we mess up in human rights, we cannot mess up in our response to mass atrocity crimes. Let’s never again have a repeat of preventable horrors, such as those in the 1990s in Somalia, Rwanda, and the former Yugoslavia. He asserts that we cannot allow indifference to what happens solely within a state’s borders to be institutionalized. He, however, limits the scope of Responsibility to Protect, known as R2P, to situations where leaders act with criminal intent. Accordingly, he contends that international action in Burma after Cyclone Nargis would not be justified in the absence of demonstrating a violation of international criminal law by the political leaders. Further, he distinguishes between domestic conflicts, such as Sri Lanka, and R2P-type conflicts, which may be arising in the eastern DRC. He concludes that future progress in R2P faces three challenges: conceptual, institutional, and political.

The following summarizes the highlights of his speech. My brief commentary follows.

Speech Summary

Brief History of R2P and His Involvement
He began with a brief history of R2P as evolving from the UN Secretary-General’s challenge to the world’s leaders in 1999. He then appointment by the Government of Canada in 2000-2001 as co-chair, with Mohamed Sahnoun, of the International Commission on Intervention and State Sovereignty (ICISS). The Government of Canada then published the Commission’s report, The Responsibility to Protect, in December 2001. He previously had served as a member of the Carnegie Commission on Preventing Deadly Conflict, co-chaired by Cyrus Vance and David Hamburg (1994-97).

Misconceptions of R2P
There seems to be many misconceptions of R2P, but there are two main common misconceptions — either deliberate from the cynical or the confused.

Myth #1: Humanitarian intervention is the same as R2P – It’s not!
One of the greatest misconceptions is that it is equivalent to coercive military response. Military response would be a humanitarian intervention. R2P is much more. R2P includes short-term and long-term strategies and responses. R2P depends on an array of tools beyond military response. The R2P toolbox includes social, economic, diplomatic, security tools, and legal and constitutional tools.

Persuasion by non-military measures should be the preferable response, and, if possible, economic sanctions. Only in extreme situations should military be contemplated and in keeping with the criteria outlined by the draft R2P guidelines given in the Commission’s report.

Criteria, known in the 2001 Report as “precautionary principles,” to be considered before a coercive international intervention under R2P include:

• Reasonable prospects: The seriousness of the threatened harm. There must be a reasonable chance of success in halting or averting the suffering which has justified the intervention, with the consequences of action not likely to be worse than the consequences of inaction.
• Last resort: Exhaustion of “considering” all other options. Military intervention can only be justified when every non-military option for the prevention or peaceful resolution of the crisis has been explored,
  with reasonable grounds for believing lesser measures would not have succeeded.
• Proportional means: The scale, duration and intensity of the planned military
  intervention should be the minimum necessary to secure the defined human protection objective.
• Balance of consequences: Must do more good than harm

Myth #2: [to be added]

The Three Challenges
R2P’s unrealized potential depends on progress in three areas: conceptual, institutional, and political.

1. The Conceptual Challenge
Two key contributions of the R2P effort and the 2001 report include: (1) the re-conceptualization of humanitarian intervention away from “intervention” to viewing the situation from the perspective of the victims, and (2) the broadening of the framework beyond coercive military intervention such that it includes prevention. The right to intervene then is transformed to a responsibility to protect and to prevent. This change in rhetoric changes the focus from a victor’s intervention to the protection of the innocent. He used the example of “sustainable development” as a parallel example that demonstrates the importance of rhetoric in building common ground among “extremists.” The agreement on a common concept allows for the development of a linguistic and conceptual framework to move forward. R2P also is more than just a military response; it includes prevention. More discussion can be found in his new book.

1. The Institutional Challenge
International and domestic institutions need capacity-building. He recommends the creation of early warning systems, the creation of “focal points” in governments and intergovernmental organizations to focus on these key issues as full-time jobs, and the development and retention of domestic experts with knowledge of the triggers and appropriate responses.

1. The Political Challenge
The main challenge is to ensure that there is political will to apply R2P in a particular case. It must be generated from the bottom-up and supported by opinion-makers and decision-makers. Political will requires the mobilization by “friends” of R2P. To help governments, the newly created New York-based Global Centre for the Responsibility to Protect is funded by governments to support governments. The Centre has the expertise, resources, and experiences to assist governments build capacity.

Specific Situations
It is important to untangle the ambiguous situations. Three situations can help illustrate: Burma, Darfur, and Georgia.

Burma – When Cyclone Nargis wrecked devastation, arguments were made to enter without the state’s consent. The Global South asked what the heck is going on here? Is this just an excuse for the big guys to throw their weight around, with the sub-context of regime change. Here, what would be necessary is to show more than the Burmese generals dragging their feet or making poor political and logistical decisions. You would need to show that the generals had the criminal intent to commit crimes against humanity or similar “atrocity crime” under the Rome Statute. Would need to show either deliberate action or reckless indifference. Only if it is put through this filter can there be a showing of a preliminary R2P. This is ambiguous, at best, in which the tools of R2P did not need to apply.

Darfur – Here, this is unequivocally a R2P situation. Crimes have occurred and continue to occur. There has been either abdication by the government or unwillingness to prevent and respond. International response has been weak, unfocused, and inefficient. This lack of action by the international community has led some people to say that R2P is “Rest 2 Peace” and is dead as a concept. The problem with that characterization is that the use of military force is not a viable option under the “balance of consequences.” Sending in coercive military forces would bring about more harm than good for greater numbers of people and would preclude humanitarian aid in the West and threaten the peace in Southern Sudan. Bottom line, it is an R2P situation. There has been an ineffective response. International pressure, diplomatic, political, and through the courts, hopefully will bring about results.

Georgia – This situation is again a difficult situation. Russia claims to be intervening to protect its citizens. Some argue that R2P applies. This is not an appropriate characterization. For centuries, states have been entitled to go abroad to protect their own citizens from harm under the old-fashioned principle of self-defense. There is a question of whether it applies when the state creates the conditions. Even if that is left out of consideration, the subsequent argument for military force fails. First, the degree of harm is not remotely above the sufficiently high threshold. Second, the intent was not pure to avert the harm. Third, the use of force was not the last resort. Russia made no attempt to resolve through the Security Council or elsewhere. Fourth, Russia’s use of force was not proportional to the harm threatened. And that doesn’t even get to the balance of consequences . . . leaving little time to discuss the other points.

At the end of the day . . .
Effective response depends on more than logical reason. There is an emotional context. For him, it goes back to his travels during 6 months in Asia as a 20-something student in the 1960s. The people of Cambodia stood out in his mind because it was the one country where he never re-met anyone from that country. The intellectuals were killed or died from forced labor. The memory of those past acquaintances and the knowledge of what happened to them stays with him and largely shaped his decision to accept writing a book on R2P.

R2P has the ability to unite, rather than divide, the international community. It has a compelling force in its own right, both intellectual and emotional. But it will not amount to much unless it does its job – as a concept and as a norm. When the next shocking situation comes along, the goal is to assume that something should be done rather than a debate or whether anything should be done. The only question being: “What?” (should be done).

Question – How effective is this really? Example of Sri Lanka, more people killed, trapped without aid. What are the quantitative triggers for R2P? 1,000 killed, 1 million killed.

Answer – Need to distinguish between outright conflicts and R2P situations. At any given time, there are conflicts, such as the situation in Sri Lanka. In contrast, the R2P situations are where the conflict and crimes are a specific kind, such as crimes against humanity under the Rome Statute. In Sri Lanka, most of the atrocities are a consequence of military invasion in the North, but it doesn’t rise to the level of R2P crimes. (Here, he refers to Rwanda as a typical example of R2P, raising the offline question of where is the line between internal conflict and violations of international criminal law, particularly when individuals are prosecuted under international law for killing only a handful of people during a conflict.)

Question – Dedication of resources into prevention. At this change of U.S. administrations and policies, how do we shift the focus away from military and more towards prevention and early warning? What would be your advice to the new administration?

Answer -Very difficult to generalize about prevention. Mobilization of diplomats to diffuse the situation. Inducing changes of attitudes across communities. Probably, the easiest and fastest return is in fact in post-conflict situations. The situations most likely to deteriorate in mass conflicts are where they have occurred in the past. Need appropriate preventive strategies. No one has any excuse for not knowing about crisis spots in the world.

Moderator – I don’t think the issue is resources. It has to do with mental image of leaders on divided societies. It is a reconceptualization of processes and bringing leaders together. Rebuild the relationships away from “winner take all.”

Question – Applicability of the work of the European Union and the High Commissioner on the Rights of Minorities

Answer -The work of the first High Commission was phenomenal and received no international attention. Salient again in the context of the Georgian conflict today.

Question – Today in eastern DRC, there are many atrocities: thousands of women systematically raped, etc. Given that the international leaders have not come together to address this, what would you recommend? What should we do differently? The state lacks the capacity and arguably is unwilling to respond in eastern DRC. How does one resolve this tension and action by the international community?

Answer -Agree that eastern DRC is one of the worst potential R2P situations in the world. How to get it right is a really tough question. It involves a strengthened military situation. MONUC is struggling. The problem also is political. The Rwanda government needs to exercise all its strength, but some of its statements and actions have been less than clear.

Question – Expand on your role in the UN? You sound critical of UN.

Answer -It is terribly critical to have the moral authority behind the GA resolution in 2005. Major focus now is to ensure that the debate take place early next year to reinforce this commitment to this norm. Second, when such debate takes place that the concept of R2P not be diluted. The role of the Security Council is crucial. The SC did adopt and pass resolutions in 2005 embracing this concept. What we need is continuity. We cannot go outside the SC to an external source of legal authority to decide military measures. Need to try to agree on “guidelines” for triggers/criteria for use of force. The United States was reluctant to adopt guidelines on use of force.

Question – What is the role of the International Criminal Court and peace commissions?

Answer –
They are incredibly important. Burundi is one of the best examples of R2P and the role of the peace commission in achieving this. The ICC generally gets involved after someone’s won. In an ongoing conflict, it is the “peace versus justice” conflict. Most classically, the situation with al-Bashir in Sudan demonstrates this conflict. Yet, the threat of prosecution is there; it is a form of leverage. If there is a “reasonable” belief that there will be a fundamental change to resolve the conflict, then all tools can be valuable.

Question – What can individuals do?

Answer – A heck of a lot. Be active. Stay informed. Respond to particular campaign situations.

Blogging in progress . . .

The R2P triggering threshold of international criminal law violations seems to create a catch-22 for justice. If the international community declares the existence of international crimes prior to a prosecution for the purpose of authorizing an R2P response, it will undermine societal confidence in the concept of innocent until proven guilty. How would a state leader be able to wage a sufficient defense in international court when already tried and found guilty by the world’s political leaders? On the other hand, if the international community requires a showing of an international crime through the traditional means of prosecution before authorizing a R2P response, the potential delay may deprive victims of an effective and timely response.

Is Carsten Stahn correct in his assertion that R2P is essentially the repackaging of old wine with new labels? Gareth Evans readily admits that the R2P term is used to recast old concepts for greater political acceptance. He stresses that humanitarian intervention is too narrow in its application because it ignores the exhaustion and application of non-military measures to avoid a coercive action in a state unable or unwilling to take action. Such rhetoric tends to ignore Chapter VI of the UN Charter and its relation to Chapter VII. Moreover, it ignores the historical responsibility by states inherent in the concept of state sovereignty. Evans also argues for a new term because humanitarian intervention does not include short-term or long-term prevention. These prevention activities require state consent. R2P, in contrast, focuses on situations where the state does not consent. What happens if the state negligently fails to act or does not consent to prevention efforts? Prevention is a worthy goal, but, if R2P is defined by triggers for when states do not consent, how is the inclusion of activities requiring state consent any different from the current framework for crisis prevention and response?

I agree with Evans that the power of accomplishment will be found in the convening of decision-makers and experts for the purpose of consensus building on how situations of mass atrocity crimes can be prevented and, if not prevented entirely, how the international community can promote a more appropriate response. Such dialog allows the international community to explore and set priorities and ethical standards in advance of such critical operational challenges and may lead to new initiatives adaptable to the changing needs of tomorrow’s global security.

The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All
Gareth Evans, Brookings Institution Press 2008 c. 348pp.

Sample Chapter

About Gareth Evans
Gareth Evans has been since January 2000 President and Chief Executive of the Brussels-based International Crisis Group (ICG), an independent multinational non-governmental organisation with 90 full-time staff on five continents which works, through field-based analysis and high-level policy advocacy, to prevent and resolve deadly conflict.

He co-chaired the International Commission on Intervention and State Sovereignty (ICISS), which produced the 2001 Report on The Responsibility to Protect. He previously served as Foreign Minister of Australia (1988-1996) and as a member of the Australian Parliament for 21 years. He was one of Australia’s longest serving Foreign Ministers, best known internationally for his roles in helping to develop the UN peace plan for Cambodia, bring to a conclusion the international Chemical Weapons Convention, found the Asia Pacific Economic Cooperation (APEC) forum and ASEAN Regional Forum (ARF), and initiate the Canberra Commission on the Elimination of Nuclear Weapons.

He holds first class honors degrees in Law from Melbourne University (BA, LLB(Hons)) and in Politics, Philosophy and Economics from Oxford University (MA). Before entering the Australian Parliament in 1978, he was an academic lawyer specializing in constitutional and civil liberties law and a barrister specializing in industrial law. He became a Queens Counsel (QC) in 1983.

About the Keynote Address for UN Week 2008
The Project on Leadership and Building State Capacity and the United Nations Association of the National Capitol Area are proud to present The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All. This panel discussion will feature Gareth Evans, President of International Crisis Group and author of the new book, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Brookings Institution Press, 2008), with welcoming remarks from A. Ed Elmendorf, President of the United Nations Association of the National Capitol Area.