by David Petrasek
Ken Roth and Gareth Evans are eager to defend a doctrine that would permit States acting under UN authority – and in narrowly defined cases – to intervene in other countries to prevent or stop mass atrocities. So am I, and in this, at least, we are in full agreement. Where we part company, I think, is 
Let’s be clear. One of the most important achievements in establishing the UN was to outlaw war except in self-defence. Unless done to thwart an actual or impending military attack, any use of force in (or over) the territory of another state amounts to aggression – an international crime. The sole exception is when the Security Council permits the use of force to respond to a “threat to the peace”. Widespread attacks against civilians might trigger such a decision. However, because humanitarian intervention is an exception to the general rule it is an obvious temptation; so much so, that States may be inclined to act under international mandates that fall short of Security Council approval.
Both Roth and Evans argue we can distinguish R2P from past interventionism and that the risks of its misuse can be managed. They do so by pointing to several criteria that are intended to limit R2P’s application. Yet such criteria (last resort, proportionality, etc.) are neither new and distinct to R2P, nor very helpful in placing firm constraints on its application. Philosophers who debated just war doctrine centuries ago set very similar criteria (although the ‘just cause’ trigger for intervention wasn’t expressed in terms of human rights abuse), and more recently international lawyers have debated these and other criteria for many decades.
Both Roth and Evans argue R2P sets a very high bar – only the most shocking crimes and only when thousands are being killed, will justify an R2P response. In Roth’s words “large scale slaughter”, and the absence of atrocity at this scale (not bias or indifference) in the examples I cite, he and Evans argue, explains the non use of force in response.
But my point in recalling situations like Yemen or Burma, or even Iraq, was not to suggest intervention would be an appropriate response (it wouldn’t), but simply to point out the inherent vagueness in these threshold tests. All of the situations I cite match, and some of them far exceed, the level of violence in Libya at the moment the Security Council vote authorised NATO’s intervention (when at most several hundred people had been killed, and not all of them civilians). Of course, the Security Council feared much worse was to come, and arguably Qaddafi’s threatening language gave good grounds to do so. But if the threat of a human rights crisis developing into a human rights catastrophe is sufficient to trigger intervention, as in Libya, then a clear threshold test proves even more elusive – who will be so confident as to predict hundreds of killings won’t soon be thousands?
Moreover, a pre-emptive R2P undermines the key criteria of last resort that Evans cites as being fundamental. The argument that we must act ‘before it is too late’ is always compelling and can easily trump the argument of waiting for less forceful measures to have an impact. This was certainly the case in Libya, where no serious conflict mediation effort was attempted (or supported by western states), and NATO’s military action began barely 3 weeks after the imposition of sanctions and granting the International Criminal Court jurisdiction in Libya.
The ‘do no harm’ criteria (that an intervention shouIdn’t make things worse) is similarly unhelpful. In Libya, the conventional wisdom suggests there was no downside. Libya’s fitful transition to democracy perhaps bears this out. But it is at least arguable that NATO’s forceful response in Libya contributed to the current human rights crisis in neighbouring Mali, where thousands of heavily armed African militia in Qaddafi’s employ fled, and who have now seized power in the north of that country.
In short, the criteria do little to solve the crucial problem of the potential misuse of R2P. They are malleable, imprecise and speculative, allowing even well-meaning people to reach different conclusions when looking at the same situation. It is worth pointing out that the International Commission on Intervention and State Sovereignty (ICISS), which first developed the R2P concept and set out the criteria Evans discuses in detail, was itself divided on their application to specific cases; in particular, NATO’s intervention in Kosovo. Though the dispute about the legitimacy of the NATO intervention in Kosovo had been the reason ICISS was set up, the Commission’s report is silent on whether or not Kosovo met the criteria.
Evans argues that R2P is further distinguished from its predecessors because it includes a strong emphasis on prevention and the use of non-military measures. R2P promoters are, in his words “much less enthusiastic about military solutions” than past interventionists (or the politicians and academics I cite). That may be true, and who would disagree with an emphasis on prevention, or any serious effort to use non-military means if they might be effective? The fact is, however, that prevention efforts and non-military responses to deadly civil conflicts — including active mediation, Security Council-authorised sanctions and even international criminal investigations — were all in use well before the R2P doctrine claimed them as its own.
Evans refers to the “bad old days” before R2P, when too little was done by the international community in the face of genocide and mass atrocity. He’s right that UN Member States failed miserably to deter the perpetrators in Rwanda and Bosnia, and many other places, but much was attempted. In fact, at least in one respect, the (pre-R2P) response to Bosnia compares favourably to the (post-R2P) response to Syria. The Security Council established an ad hoc tribunal to punish and deter war criminals within a year of the conflict erupting in Bosnia-Hercegovina, something it has failed to do 18 months into the Syrian conflict.
R2P is about the use of force – this is what the doctrine brings to the debate, and it adds little beyond political exhortation to pre-existing (and firmer) legal obligations on UN Member States to prevent mass atrocity crimes in other states through sanctions, arms embargoes and even criminal punishment.
R2P is simply not as distinctive as is claimed. It is the just war theory of the 21st century, and as with its predecessors it will be applied inconsistently and selectively, and on occasion misused. On the problem of selectivity, Evans agrees that we should be concerned, and that we must work towards a more even application of the doctrine. Roth is less troubled by selective action. Governments will always be inconsistent and self-interested, he says, and it is naïve to expect otherwise. At least in some cases, their actions will save lives. As I made clear, this argument has merit. But in weighing it, we should look also at the downside risks of the selective application of force to deter mass atrocity.
There is the obvious risk that, over time, the inconsistent application of principle will breed distrust about one’s intentions, and undermines support for the principle.
And there is risk I already pointed to – that what is explained as an inconsistent humanitarianism might actually be the cynical misuse of the doctrine. Roth says he prefers a “tainted” humanitarianism to the “supposed purity of … indifference”, and that we can guard against misuse by denouncing governments that falsely claim a humanitarian mantle for their military adventurism. Roth cites the Human Rights Watch report that denied the Iraq invasion could be justified on humanitarian grounds. This might be more convincing if the report he cites had not been released many months after the US invasion. Neither HRW nor Amnesty International opposed the US invasion at the time it happened, as they eschew taking positions on whether war is justified in order to be seen as impartial monitors of how it is conducted.[1] But more importantly, it puts an unwarranted confidence in the power of advocacy groups and the media to deny this course of action to governments. And it begs the question – would there be the same confidence if the interveners were not the US and its NATO allies, but the Saudis and their Gulf allies? Roth argues that “principled R2P proponents” wouldn’t involve such forces. But the decision doesn’t rest with principled R2Pers, and the power of western advocacy groups to influence such decisions will wane as western power declines.
The suggestion that deep scepticism about R2P may amount to “indifference to mass murder” is too harsh, if familiar. Certainly, in the wake of the Rwandan genocide the sceptics have been put on the defensive. The moral power of human rights language has tilted towards the interventionists. Indeed, so much so that the case for war crowds out the case for peace even in situations, like Syria, where no intervention is likely. But the fact that a military intervention would almost certainly have been the best option to halt the genocide in Rwanda obscures the fact that since Rwanda there have been so few other situations, and none on the same scale, where the same is true. Not Darfur, not Chechyna, not Sri Lanka, and not Syria.
It is not indifference but profound doubt about the efficacy of force that breeds scepticism. Since, as Roth and Evans agree, armed intervention is rarely appropriate, then the surest means to end the bloodletting in almost all situations of civil conflict is to end the fighting. But with the human rights argument tilted towards the interventionists, the peacemakers are forced on the defensive – to explain their “compromises”, their willingness to engage in dialogue with the criminally culpable, and their continued cautions about the abuses by all sides. Kofi Annan’s mediation efforts in Syria were undermined by the duplicity of the Syrian regime, no doubt. But they were weakened too by the fact that even as powerful governments paid lip service to his peacemaking efforts, some facilitated the arming of the rebels in the name of human rights, and others the arming of the regime in the name of thwarting a foreign intervention – R2P uppermost in the minds of both.
I agree with Evans and Roth that we need – urgently – to build an international consensus around action to prevent and stop mass atrocity, and have enormous respect for the demonstrated commitment of both to do so. But against the backdrop of Syria, it is hard not to see that the interventionist edge to R2P may often be a hindrance not a help to such a task.
[1]The justification given for the late release of the HRW report is that only after the failure to locate WMD did the human rights rationale for the invasion gain prominence; but Saddam’s tyranny was regularly invoked in the lead up to the invasion, even if it was not the sole argument given.
David Petrasek: Formerly Special Adviser to the Secretary-General of Amnesty International, has worked extensively on human rights, humanitarian and conflict resolution issues, including for Amnesty International (1990-96), for the Office of the UN High Commissioner for Human Rights (1997-98), for the International Council on Human Rights Policy (1998-02), and as Director of Policy at the HD Centre (2003-07). He has taught international human rights and/or humanitarian law courses at the Osgoode Hall Law School, the Raoul Wallenberg Institute at Lund University, Sweden, and at Oxford University.
To leave a comment, please see the introduction to the DAG-3QD Peace and Justice Symposia, of which this essay is a part, here.