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Responsibility to Protect: where the rubber meets the road

Gareth Evans at the GCSP for the 4th Security and Law Reality Check

In December 2001, the International Commission on Intervention and State Sovereignty (ICISS) released a report titled “The Responsibility to Protect”. That moment marked the birth of R2P, a framework for political and legal determinations by states in the effort to prevent and react to mass-atrocities. Recognised today as one of the most significant policy developments of the new millennium, R2P was unanimously endorsed by the Heads of State and Government reunited for the 2005 World Summit, only four years after its appearance.

Prof the Hon Gareth Evans, the inventing father of R2P, Foreign Minister of Australia from 1988-96 and today Chancellor of the Australian National University, was GCSP’s guest speaker for the forth Security and Law: A Reality Check, moderated by Tobias Vestner, Head of Security and Law Programme. As Co-Chair of the ICISS, Prof Evans was called to answer the question posed by the then UN Secretary-General Kofi Annan: how do we find common grounds to uphold the principles of the UN Charter in the face of atrocities like those of the 1990s in the Balkans and in Rwanda, provided that humanitarian intervention is an unacceptable assault on sovereignty?

 

 

R2P was the answer to the conundrum. It provided a newly conceived formula to reconcile respect for state sovereignty with demands for human rights protection, based on three main pillars. First, states have the primary responsibility for protecting their citizens from mass atrocity crimes. Second: the international community shall assist states to uphold this task with capacity-building. Third: should states be either unwilling or unable to fulfil their primary responsibility, the international community assumes secondary responsibility, which can go as far as requiring the use of force to stop mass atrocity crimes.

Tobias Vestner guided the discussion towards a reality check of R2P, its capacity to live up to the expectations raised and its degree of implementation. According to Prof Evans, a complete overview of R2P offers a positive picture and should help discarding cynical judgments. R2P foresees four main aims. Three of these provided encouraging results, sometimes even beyond original expectations: R2P managed to establish itself as a normative principle with universal acceptance, as an institutional catalyst to coordinate efforts against mass atrocities, and as an effective preventive mechanism to act before atrocities take place.

Yet, if we turn to its additional function as an effective reactive mechanism, R2P still shows many shortcomings. Despite proving a successful tool to solve several crises before they plummeted to full-scale conflicts, as in Kenya in 2008 and in Côte d’Ivoire in 2011, the military intervention in Libya revealed the political fragility of R2P’s third pillar. What went wrong in that case, according to Prof Evans, is that a very narrowly defined mandate granted by the UN Security Council for the protection of civilians was turned by the P3 (the US, the UK and France) into a regime change operation to oust Gaddafi. This had obvious repercussions on the credibility of the Security Council and on mutual trust among its members. The resulting breakdown of consensus led to the entangled stalemate that prevents any action in Syria.

To rebuild consensus in the UN Security Council, one of the most promising solutions, endorsed by Prof Evans, came from Brazil. Its proposal of a corrective amendment to R2P, commonly referred to as Responsibility while Protecting (RwP), requires that forcible mandates be granted only when two conditions are met: a preliminary assessment proves the legitimacy of the use of force and an monitoring mechanism is set up which is capable of halting the mission if the mandate is exceeded.

It should be recalled however that the use of force is only the last resort option within the broader R2P framework. The bar for military intervention hence, as explained by Prof Evans, should be very high and hinges upon three sets of conditions: it must be legal, legitimate, and practically deliverable. The first condition strictly depends on the approval by the UN Security Council under Chapter VII or VIII of the UN Charter. Any attempt to argue that a customary rule has formed allowing forcible interventions without Security Council authorization is, in the view of Prof Evans, unwarranted and not substantiated by practice. Legitimacy relies instead on a different set of five criteria: seriousness of the impending harm, of such a nature to justify the use of force; right intention, that of halting or adverting a mass atrocity; last resort, proving that no other measure was able or is likely to stop the tragedy; proportionality between the force used and the threat or harm; and balance of consequences, to exclude that the consequences of a military intervention would be worse than the consequences without.

Legality and legitimacy evidently stand as two separate and cumulative criteria. As pointed out by Tobias Vestner, this leaves one urgent question open: how to react when all the conditions for legitimacy are clearly met, yet an authorization by the UN Security Council cannot be obtained. Prof Evans solution for such case relies on the common law domestic principle of plea in mitigation: states cannot pretend that mere legitimacy made their actions legal; they should therefore stop challenging the applicability of the law and instead invoke the overwhelming moral imperatives behind their actions to justify a claim for more lenient censure. A justification for the strikes conducted by the US, the UK and France against the Syrian regime after the Douma chemical attack of April 2018 could probably be phrased in these terms.

This nonetheless, R2P remains a mainly preventive instrument, which needs to address the root causes of crises in order to work effectively. A credible threat of forcible reaction to mass atrocities could arguably also attain a preventive effect, changing perpetrators’ determination. In this sense, a Rapid Reaction Force could support institutional efforts to implement R2P, provided the criteria of legality and legitimacy are satisfied.

In conclusion, Prof Evans encouraged reflecting on the impressive progress already achieved. The total lack of consensus of the 1990s was replaced by almost universal acceptance of R2P’s basic principle: that mass-atrocities can no longer be a private affair happening behind state sovereignty’s closed doors, but are everybody’s business. Confronted with disappointment, we have a choice between optimism and pessimism. Much remains to be done to make of R2P a perfect mechanism: to win this fight, we will all need to work much harder.

 

Watch here six clips with the highlights of the discussion. 

Do not miss our fifth Reality Check: on 17 December 2018 we will discuss the topic ‘Dear Geneva: Let’s Talk Hybrid Warfare’.

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