The Responsibility to Protect

Ending Mass Atrocity Crimes Once and For All

Gareth Evans

• Publisher: Brookings Institution Press
• Year: 2009
• ISBN:
  9780815701804
• Topic: Politica e relazioni internazionali
• Subtopic: Libertà politica

"Never again!" the world has vowed time and again since the Holocaust. Yet genocide, ethnic cleansing, and other mass atrocity crimes continue to shock our consciences—from the killing fields of Cambodia to the machetes of Rwanda to the agony of Darfur.

Gareth Evans has grappled with these issues firsthand. As Australian foreign minister, he was a key broker of the United Nations peace plan for Cambodia. As president of the International Crisis Group, he now works on the prevention and resolution of scores of conflicts and crises worldwide. The primary architect of and leading authority on the Responsibility to Protect ("R2P"), he shows here how this new international norm can once and for all prevent a return to the killing fields.

The Responsibility to Protect captures a simple and powerful idea. The primary responsibility for protecting its own people from mass atrocity crimes lies with the state itself. State sovereignty implies responsibility, not a license to kill. But when a state is unwilling or unable to halt or avert such crimes, the wider international community then has a collective responsibility to take whatever action is necessary. R2P emphasizes preventive action above all. That includes assistance for states struggling to contain potential crises and for effective rebuilding after a crisis or conflict to tackle its underlying causes. R2P's primary tools are persuasion and support, not military or other coercion. But sometimes it is right to fight: faced with another Rwanda, the world cannot just stand by.

R2P was unanimously adopted by the UN General Assembly at the 2005 World Summit. But many misunderstandings persist about its scope and limits. And much remains to be done to solidify political support and to build institutional capacity. Evans shows, compellingly, how big a break R2P represents from the past, and how, with its acceptance in principle and effective application in practice, the promise of "Never again!" can at last become a reality.

PART I

Understanding the Responsibility to Protect

CHAPTER ONE

The Problem: The Recurring Nightmare of Mass Atrocities

China has used tanks to kill people on Tiananmen Square. It is Myanmar’s sovereign right to kill their own people, too.

—Professor Shen Dingli, Shanghai, USA Today, October 2, 2007

It has taken a desperately long time for the idea to take hold that mass atrocities are the world’s business: that they cannot be universally ignored and that sovereignty is not a license to kill. Massacres of the innocent, forced displacement of populations, large-scale sexual violence and humiliation, and the wanton destruction of civilian property have been going on since the dawn of civilization. Efforts gradually evolved over the centuries, then rapidly accelerated after the Second World War, to more effectively protect people against the commission of such atrocities, both in peace and war. But, for the most part, those horrors were met with indifference, cynicism, or deep disagreement about how to respond to them. As the twenty-first century began, there was still no universally accepted and effective response mechanism in place. This chapter traces that sad history, defining the problem to which, hopefully, the new international norm of “the responsibility to protect” will prove to be the solution.

Defining Mass Atrocities

It may be useful at the outset to clear an initial path through the often very confusing jungle of terminology involved in this debate. Throughout this work, the expressions “mass atrocities” or “mass atrocity crimes” are used more or less interchangeably to refer to what is now embraced by the description “genocide, war crimes, ethnic cleansing, and crimes against humanity,” which in turn defines the scope of “the responsibility to protect” as embraced by the UN General Assembly meeting at the head of state level during the 2005 World Summit.¹ Choosing between the terms “mass atrocities” and “mass atrocity crimes” is a matter not so much of style as it is context: it would be, for example, anachronistic to refer to “crimes” for periods of history before any system of international law had evolved to label certain behavior this way. “Mass” is not a legal term of art, and many kinds of war crimes and crimes against humanity can, as a matter of law, be committed without large numbers of victims being involved. But this adjective is used here as shorthand to reflect the political reality that the kinds of atrocity crimes around which the responsibility to protect debate actually revolves are essentially those committed on a large scale And what, in turn, counts as “large scale” will always be a matter of context.

What of the four specific elements contained in the UN World Summit description? They are not mutually exclusive, and issues arise with respect to the meaning of each of them. “Genocide” has a very precise and quite narrow legal definition, spelled out in the 1948 Genocide Convention and repeated in the 1998 Rome Statute of the International Criminal Court.² Because it applies only to “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,” not even the Cambodian slaughter—directed at those of exactly the same nationality, ethnicity, race, and religion—would qualify as genocide. And even if the population in question meets the criteria, the required element of intent is notoriously difficult to prove.

“War crimes” and “crimes against humanity” are now fully, and helpfully, defined in the Rome Statute of the International Criminal Court and are much easier to apply, but the scope of each overlaps not only with that of genocide and ethnic cleansing but also with each other (for example, crimes against humanity can be committed in wartime, and most war crimes can be committed in armed conflict situations “not of an international character”). The range of conduct potentially covered by both war crimes and crimes against humanity is extremely wide, and in the case of war crimes, the responsibility to protect debate has focused primarily, as does this book, not on traditional cross-border conflicts but rather civil wars, that is, those occurring within the boundaries of a particular sovereign state.

In contrast with the other elements, “ethnic cleansing” has no formal legal definition but can be regarded, like genocide, as subsumed within the scope of both war crimes and crimes against humanity. It can be accomplished in a number of ways, including outright killing, expulsion, acts of terror designed to encourage flight, and rape when perpetrated either as another form of terrorism or as a deliberate attempt to change the ethnic composition of the group in question.

For nearly all policymaking, political, and operational purposes, it is not necessary to distinguish between these categories and give apparent crimes particular labels. Worse, labeling can be counterproductive, particularly regarding allegations of genocide, which can be very tempting rhetorically but—after lawyers have split legal hairs—can also give utterly unearned propaganda victories to those with heavy cases against them for war crimes or crimes against humanity. This is exactly what happened in 2005 in relation to Darfur, when Khartoum triumphantly claimed vindication after a UN commission found that for want of evidence of genocidal intent, charges of genocide probably could not be sustained against the Sudanese government—but charges of major crimes against humanity and war crimes certainly could!³ David Scheffer has long argued, sensibly, that for all policy discussion purposes one should just use the generic expression “atrocity crimes” and leave it to the prosecutors and judges in international courts, or courts exercising international jurisdiction, to work out which tag is most legally appropriate for particular cases.⁴ That general approach is adopted here.

The Premodern Age: Centuries of Indifference

Through prehistoric, ancient, and medieval times (that is, before the age of modern sovereignty), rape, pillage, and massacre—whether perpetrated by warring tribes, conquering khans and princes, or kings and emperors against their own people—were essentially a matter of indifference to all but their victims. That was not because the scale of these atrocities was in any way trivial. For all the horrors of the last hundred years, deadly violence on a massive scale is not peculiar to modern society, nor is it a function of the technology of modern warfare. By piecing together evidence ranging from the incidence of axe injuries in prehistoric skulls to the proportion of battle deaths in contemporary foraging tribes, anthropologists estimate that rates of death in early tribal warfare were in fact some twenty times higher than was the case for all the wars and violence of the twentieth century. In terms of absolute numbers, the last century was by far the bloodiest on record, but if its wars had killed the same proportion of people that died in those ancient conflicts, there would have been not 100 million deaths, but two billion.⁵

What we would now call civilians—noncombatants, women, children, the old, and sick—were, so far as we can judge, no more exempt from the violence of the age in early tribal times than they have been through the whole of subsequent recorded history. The Bible, as Steven Pinker points out, “contains numerous celebrations of genocide, in which the Hebrews, egged on by God, slaughter every last resident of an invaded city, occasionally sparing the virgins so the soldiers could rape them.”⁶ The city-states of classical times and the Roman Empire, the first large-scale organized system of governance in the Western world, may have had some internalized formal restraints on how rulers should treat their own citizens (or at least free, male ones), but they set little or no constraint, legal or otherwise, on how, in war, either wounded or captured combatants or enemy civilians should be treated. ⁷ When the Romans sacked Carthage at the end of the third Punic War in 146 B.C., they went from house to house, killing or enslaving all 50,000 inhabitants before burning down the entire city.

In the decentralized, feudal, fractious, and fragmented world of the European Middle Ages—for all the residual authority of the church; for all the evolution of “just war” doctrine during this period, with its emphasis on proportionality, discrimination, and limiting damage to civilians; and for all the restraints supposedly associated with the institution of chivalry—there was little practical inhibition when it came to the treatment of civilians. For knights, indeed, “the protection of … the knight’s horse was considerably higher on the agenda than protection of commoners, including civilians.”⁸ Christians did not remain immune from the temptation to tear each other apart, the worst examples in the premodern age probably being the massacre of scores of thousands of Protestant Huguenots by French Catholics during the religious wars of the sixteenth century.⁹ However, when it came to non-Christians, there seemed to be no effective constraints at all. The First Crusade at the end of the eleventh century set the tone for those that followed, with the massacre of thousands of Jews in the Rhineland en route to the Holy Land, and then of many more thousands of Jewish and Muslim men, women, and children in Jerusalem. “Jews were burnt inside their synagogue. Muslims were indiscriminately cut to pieces, decapitated, or slowly tortured by fire…. The city’s narrow streets were clogged with corpses and dismembered body parts…. Many of the surviving Muslim population were forced to clear the streets and carry the bodies outside to be buried in great pyres, whereat they themselves were massacred.”¹⁰ Elsewhere in the world during this period, few stories are more harrowing than that of Genghis Khan and his Mongol successors in the thirteenth century as they swept through East and Central Asia and then Europe as far west as Poland and Hungary, routinely massacring the populations of villages and whole cities along the way.¹¹

In all of these cases, not only was there no external force powerful enough to constrain the scale of inhumanity perpetrated, but there also appears to have been no internalized constraint either. In the main non-Western religious and intellectual traditions, scholars have identified many parallels to evolving Christian theory in relation, for example, to the treatment of noncombatants and the obligations of rulers to their own people. Confucius, for example, while insisting on rigid hierarchical order, accompanied this with an equally strong insistence on responsibility and obligations to others. Early Islamic thought, as expressed in the Koran and elsewhere, set bounds to the caliph’s absolute power and limits to the conduct of war, including the treatment of prisoners, and prohibited the killing of the old, women, and children.¹² But neither of these currents of thinking had any discernible impact on Genghis Khan and those who followed him, any more than Christian doctrine inhibited those slaughtering Huguenots three centuries later.

From Westphalia to the Holocaust: Institutionalizing Indifference

Before the seventeenth century, it makes no particular sense to view mass atrocities in terms of the responsibility of states, individually or collectively. There were clearly identifiable rulers in different territories and multiple different forms of governance, but no sovereign states existed in the modern sense. All that changed with the Peace of Westphalia in 1648, a pair of treaties arising from the gradual emergence of strong, consolidated, royalty-based states in Europe and from the need to settle a long period of bloody war among them.¹³ To make peace, to make clear that the supranational writ of the Holy Roman Empire had run its course, and to achieve a firmly secular basis for ongoing state authority, the treaties of Westphalia created the key elements of the modern system of sovereign states: states legally equal to each other, not subject to the imposition of supranational authority, and, above all, not intervening in each other’s internal affairs.¹⁴

For present purposes, the significance of the Westphalian principles, which steadily expanded beyond Europe and over time became the accepted worldwide norm, is that for all their undoubted utility as a stabilizing element in international relations, they effectively institutionalized the long-standing indifference of political rulers toward atrocity crimes occurring elsewhere, and also effectively immunized them from any external discipline they might conceivably have faced for either perpetrating such crimes against their own people or allowing others to commit them while they stood by.¹⁵ Thus sovereignty—the possession by a country of the recognized trappings of independent statehood—meant immunity from outside scrutiny or sanction: what happened within a state’s borders and its territorial possessions, however grotesque and morally indefensible, was nobody else’s business. In the history of ideas, there have been few that have prevailed to more destructive effect.

The result was a long and unhappy litany of further massacres and other atrocity crimes perpetrated in the centuries that followed. Among them, to take some examples from the first half of the twentieth century, were the deaths of nearly 50,000 women and children from disease and hunger in British Boer War concentration camps in 1901; German suppression of the Herero rebellion in the neighboring colony of South West Africa by a deliberate policy of tribal extermination through relocation, resulting in over 60,000 deaths; the Turkish killing of some 1.5 million Armenians in 1915–16 by direct massacre and forced marches under appalling condit...