By Lloyd Axworthy and Allan Rock
The world has watched in frustration as the brutal regime of Bashar al-Assad of Syria has turned its weapons against its own citizens to suppress an insurgency and cling to power. The shocking estimates of civilian casualties (some as high as 20,000) don’t measure the untold misery of the displaced who have poured over the country’s borders in their tens of thousands, or sought uncertain shelter in the besieged cities.
The violence of the Assad regime surpasses anything Gadhafi ever threatened. Meanwhile, Assad’s false promises and cynical disdain have frustrated efforts to find a diplomatic solution. So we are left to watch a ruthless tyrant engage in the systematic murder of his own people.
But had we not resolved after Rwanda, after Bosnia, after Kosovo, that the international community would no longer stand by and witness mass atrocity inflicted by states against their own people? Did we not decide collectively that if a state’s government fails in its most fundamental responsibility to protect its own population from such horrors, that the world, with United Nations Security Council authority, would intervene to provide that protection? And did we not do just that, last year, in Libya?
To be sure, Syria presents the Security Council with a more complex challenge than it faced in Libya. The complicated neighbourhood, its intersecting alliances and the larger drama playing out over Iran make the situation most difficult. And the Syrian army is literally a “force to be reckoned with” and any military intervention would surely be long and costly in lives and treasure.
But the council’s failure to invoke even the spirit of Responsibility to Protect (R2P)in Syria — Russia and China went so far as to veto sanctions under Chapter 7 of the charter because that is the chapter that might eventually be invoked to authorize military force — demonstrates not only the difficulty of the case, but also a deep suspicion of the R2P doctrine itself. What explains this aggressive attitude towards R2P? What does it mean for the nascent norm’s future? Can this opposition be overcome, and can R2P remain viable?
To understand what is at stake and the political currents at play, we must first look at the recent history of initiatives aimed at protecting vulnerable populations when their own governments are unwilling or unable to do so.
R2P and its origins
An appalling series of atrocities in the 1990s forced a chastened world to confront, at long last, the inherent contradiction between the rigid doctrine of state sovereignty on the one hand and, on the other, the moral imperative to respond when civilian populations are victimized within states that either cannot or will not protect them.
In the midst of these catastrophes, there were many calls for military intervention. Advocates cited an inchoate “right to intervene” or invoked a moral obligation loosely referred to as “humanitarian intervention.” But neither of these concepts enjoys status in law, and each suffers from a vagueness that leaves many (and especially states of the global south) uneasy. Both seem little more than impulses, well-motivated but undefined, and without governing principles anchored in international law.
Following the ad hoc intervention in Kosovo, government leaders and policy-makers decided, at the request of the Canadian government, to explore in a more structured way the question of protection and intervention. The International Commission on Intervention and State Sovereignty (“the Commission”) — the body that would ultimately release the initial report on Responsibility to Protect — was formed to undertake this crucial task.
In its report released in late 2001, the commission concluded that while state sovereignty remains the hallmark of the international system, an essential component of sovereignty is the responsibility to protect one’s own population from mass murder. The responsibility lies first with the state itself to protect its own people, but should it fail to do so, that responsibility devolves upon the international community. There, the responsibility falls under three pillars: the responsibility to prevent, to react, and to rebuild.
The commission emphasized that military intervention under R2P should always be the very last resort. In the exceptional case in which military intervention is considered, strict rules must govern the use of force.
R2P represents a great advance in the discussion of protection. It puts the principle in a legal framework, removing it from a “humanitarian impulse” and basing it instead on sovereignty as responsibility. R2P also moves the emphasis from “boots on the ground” to prevention, changing the conversation in a constructive way.
At the 2005 UN World Summit, state leaders unanimously adopted the principles of R2P. While the speed at which this occurred was celebrated, many key but controversial elements in the commission’s report fell away in the inevitable “give and take” of the negotiations that led to the final agreement. For example:
The UN World Summit’s outcome document limited the application of R2P to four triggering events: genocide, ethnic cleansing, crimes against humanity and war crimes. The commission’s recommendation had not been so confined.
While the commission had left room for alternative ways to authorize intervention where the Security Council delays or cannot reach consensus, the outcome document made no mention of them.
As cited above, the commission had recommended a series of principles governing the use of force — when it should be authorized and how it can be deployed — but these were rejected by the five permanent members of the Council as interfering unduly with their national prerogatives.
And although the commission had recommended that the P5 adopt a “code of conduct” to limit the use of their veto when responding to mass atrocity, fierce P5 opposition forced negotiators to drop the demand or risk losing approval for R2P altogether. (The P5 refers to the five permanent members of the UN Security Council: the U.S., England, France, China and Russia.)
As we will see, the price to be paid for these compromises is just now becoming clear.
R2P after 2005
The euphoria that followed the rapid adoption of R2P dissipated quickly when the Security Council failed to apply it in such emergencies as Darfur, the Democratic Republic of Congo and Sri Lanka. Those cases demonstrated the challenges that cannot be overcome simply by putting even the most high-minded words on paper: developing the political will to respond, overcoming member states’ suspicions about each other’s motives and means, and persuading some on the Security Council to put the protection of vulnerable civilians above their national interests and allegiances.
The question therefore remained whether the international community could, as former UN secretary general Kofi Annan had put it, “turn words into deeds.”
And then along came Libya, a case in which political will (largely inspired by strong regional calls for action) combined with R2P’s principles to produce effective action to stop a threatened atrocity. The Security Council’s steadily escalating responses included sanctions, referral to the ICC, an arms embargo and then the imposition of a “no fly zone.” These culminated in the Council’s authorization “to take all necessary measures” to protect the Libyan population.
And what made Libya different? A combination of factors: credible threats of imminent violence by Gadhafi against his people, a vigorous call for action by a key regional player (the Arab League), strong opposition and a weak army in Libya, and (perhaps most important) virtually universal denunciation of an isolated Gadhafi with even his former friends fed up with his increasingly irrational behaviour.
The Security Council resolutions on Libya represented the high-water mark for R2P and its application. The Council’s decisions were held up as the ultimate answer to those who decried R2P as empty rhetoric.
But ironically, the seeds of the doctrine’s failure in Syria can largely be traced to the way the Libyan resolutions were implemented. A protection mandate rapidly took on the appearance of regime change, as NATO forces went after non-military targets and, in effect, took sides in the civil war.
There was strongly adverse reaction by Russia, China and others (including India, Brazil and South Africa — leading members of the G77 “unofficial opposition” to the Global North) to NATO’s aggressive interpretation of the mandate. That reaction, combined with the continued availability of the P5 veto even in cases of threatened mass atrocity, go a very long way to explaining the Security Council’s inability to agree on any collective response in Syria that invokes Chapter 7 of the UN Charter.
R2P post-Libya
So, what does this mean for the future of R2P? Only a year after its success in Libya, R2P’s detractors have fresh grounds to attack the doctrine as an unreliable friend of the vulnerable. None of this is made any better by the pre-election paralysis of the United States and a European Union entangled in its Euro Zone fiscal failures.
Some even suggest that R2P should be abandoned in favour of unilateral action by those states willing to support intervention in any given case. They argue for a return to the “bad old days,” when states were free to do as they chose, but where their action was outside the framework of international law.
Such a regression would be disastrous. It would relinquish hard-won ground in the long effort to weave civilian protection into the sovereign duties of member states and, should they default, into the duties of the international community. We contend that despite the collective failure to respond effectively in Syria, R2P continues to provide the most legitimate and promising instrument to protect vulnerable populations from mass atrocity. R2P provides a framework within which collective action involving even military intervention, can be taken within the law.
All other formulae that have been tried or suggested for such cases — whether “coalitions of the willing,” humanitarian intervention or exercising the “right to intervene” — amount to unlawful invasions.
In our view, the best way to deal with the issues that prevented R2P’s application in Syria is to confront those issues directly.
Modest proposals
We offer three suggestions. First, find ways to meet the concerns about the way NATO used its mandate in Libya. It is time to define with greater clarity the circumstances in which military force may be authorized and the manner in which it may be used. Why not return to the commission’s recommended rules on the use of force: right authority, just cause, right intention, last resort, proportional means and reasonable prospects.
A good first step is the Brazilian government’s initiative called “Responsibility while Protecting” which was tabled in the General Assembly in November 2011. Inspired by the negative reaction to NATO’s interpretation of the Libyan mandate and aimed at preserving R2P while satisfying the demands for limits on “military intervention,” the document notes that there’s growing concern that R2P might be misused for “purposes other than protecting civilians, such as regime change.” It argues the international community “must show a great deal of responsibility while protecting.” It proposes that any authorization of force should be limited and the scope of military action should respect those limitations.
The Brazilian paper is a constructive initiative that deserves Canadian support. It would help overcome the negative consequences of NATO’s muscular conduct in Libya while promoting the commission’s rules on the use of force that were rejected in 2005. If these parameters were adopted, concerns that contributed to failure in the case of Syria might be diminished the next time an issue arises.
Our second proposal is that, in view of the Security Council’s deadlock over Syria, UN member states should examine other ways by which a collective response, such as a “no-fly zone,” can be legitimately authorized. For example, the commission report referred to the “Uniting for Peace” mechanism in the General Assembly, by which two-thirds of its members can support a course of action, lending it a “high level of legitimacy.”
While this mechanism was not referred to in the 2005 outcome document, it was not specifically rejected. It would surely be difficult for Russia to object to intervention authorized through such a legitimate means, when Russia itself is intervening, by supplying the Assad regime with weapons and active political support. Indeed, there is no shortage of intervention in Syria now, ranging from those who are encouraging the insurgents, to regional actors infiltrating their ranks to make mischief or lay the groundwork for future influence.
Isn’t it time to seek authority in the General Assembly for a legitimate intervention, aimed at actually protecting the civilian population? And what better champion for this cause than Canada, original sponsor of the commission’s work?
Finally, let’s begin now to focus on the post-Assad era. The moment may have passed for effective action to avoid full-scale civil war, but it is not too early to plan for what will happen when Assad leaves.
It now seems inevitable that he will go, and equally clear that his departure could precipitate a wide intersectarian conflict in Syria. Citing the first R2P principle (the responsibility to prevent), member states should anticipate and try to avoid that conflict. We should seek the collaboration of like-minded states in, among other things, preparatory work towards the creation of a protection force to separate factions and prevent internal, violent chaos after the Assad regime falls.
Such a force could separate the competing interests to “keep the peace” during the negotiations towards a new model of governance. Since post-Assad violence is entirely predictable, why don’t we start planning now to prevent it, for the sake of the vulnerable civilians who will pay the steepest price if we do not?
Longer term, we are going to need limitations on the use of the veto in such cases. Perhaps adopting rules on the use of force would soften P5 resistance. And those who use the veto to deny protection and thereby condemn innocents to death should face significant consequences. Let’s ensure that Russia and China pay a price for preventing meaningful action in Syria. Boycotts, shunning and even trade sanctions should be considered.
An optimistic conclusion
We conclude on a note of optimism, remembering that only a decade has passed since the commission first proposed R2P. Measured by the glacial pace at which important changes are introduced into international law, R2P has advanced with unprecedented speed. It is hardly surprising that its evolution has been marked by failures as well as successes.
What is most encouraging is the strong residual loyalty that so many UN member states (including the vast majority from the global south) have shown to its principles, and their willingness to seek solutions to the challenges that R2P faces in becoming a standard response when vulnerable populations are threatened by lawless governments.
Despite the Security Council’s failure to apply R2P in Syria and elsewhere, we must continue to work towards the day when its principles are put into practice in a consistent and effective way. The stakes are simply too high for us to do otherwise.
Lloyd Axworthy was Canada’s foreign minister from 2000 to 2005. Allan Rock was Canada’s ambassador to the United Nations from 2004 to 2006.
