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The Responsibility to Protect in Environmental Emergencies

Presentation by Gareth Evans, President, International Crisis Group, to American Society of International Law (ASIL) 103rd Annual Meeting, Washington DC, 26 March 2009

Why and How the Responsibility to Protect Norm Evolved [1]

The responsibility to protect norm evolved in a very specific context, to meet a very specific need. And that was the absence of any international consensus as to how to respond to mass atrocity crimes occurring within the boundaries of a single state. The imperative driving its initiators and advocates was to ensure that whatever other problems the international community failed to resolve, we would never again have to look back - after a Cambodia, a Rwanda, or a Srebrenica - asking ourselves with a mix of anger, incomprehension and shame how we could possibly have let such catastrophes happen again. The hope was that a way could be found to ensure that whenever one of these kinds of situations again erupted, or looked like erupting, there would be a reflex international reaction: not that this was nobody's business, but that it was everybody's, with the only issue being not whether, but how, to respond.

Such a hope was pushing hard against history. For centuries what we would now call genocide, crimes against humanity or war crimes committed in a civil war context were, with only a handful of exceptions, greeted with profound indifference by all but their victims. Even after the Holocaust, the Universal Declaration, the Nuremberg Charter and the Genocide Convention, the norm that had most resonance in the Cold War years was that embodied in Article 2 (7) of the UN Charter, requiring 'non-interference' in 'matters essentially within the domestic jurisdiction of any state'. And even with the sequence of catastrophes that unfolded in Somalia, Rwanda and the Balkans throughout the 1990s, there was a huge continuing rhetorical and policy divide between advocates, mostly in the global North of Bernard Kouchner's 'droit d'ingerence', or 'right of humanitarian intervention' and those, mostly in the global South, who regarded the acceptance of any such general principle as a wholly unacceptable assault on state sovereignty.

The move to bridge that divide, to create a consensus where none previously existed, came with the 2001 report of the Canadian-government sponsored report of the International Commission on Intervention and State Sovereignty. We proposed that 'right to intervene' language be reconceptualised as the 'responsibility to protect'; that this responsibility be exercised in the first instance by individual sovereign states in relation to their own peoples, with the wider international community's responsibility only arising if they were unable or unwilling to do so; that the responsibility should involve a whole continuum of responses from prevention, through reaction, to post-crisis rebuilding; and that coercive military intervention be de-emphasised -- as just one among many possible reactive responses, only to be used in extreme situations after multiple prudential criteria had been satisfied.

Within just four years, an extraordinarily short time frame given how long it usually takes new norms of international behaviour to move from initial articulation to formal institutional embrace, the responsibility to protect principle was embraced unanimously by more than 150 heads of state and government attending the 2005 World Summit and sitting as the UN General Assembly. The language of paras 138 and 139 is clear and compelling, and - although in some respects a little different from the original Commission - embraces all its key elements. The focus is on four specific categories of atrocity crime - genocide, war crimes, ethnic cleansing and crimes against humanity - and what have since been described as three 'pillars' of action: the first is the responsibility of individual sovereign states to protect their people from such crimes, the second it that of other states to assist them to do so, and the third is the responsibility of states to take appropriate collective action - including as necessary forcible action under Chapter VII of the Charter when a state is 'manifestly failing' to fulfil its own responsibility.

Since 2005, the new norm has been gradually gaining traction, most obviously, and effectively, in the strong and united international reaction - in marked contrast to the reaction to Rwanda in 1994 - in response to the explosion of ethnic violence in Kenya in the last days of 2007 and first days of 2008, which was very widely described as a responsibility to protect case, and which was defused by diplomatic mediation rather than coercive force, demonstrating that the norm was not just about 'sending in the Marines'. But in Darfur and other cases the international response has been manifestly inadequate, and much obviously remains to be done to meet the institutional and political challenges of ensuring that there is both capacity and will to respond appropriately at all stages to emerging situations of responsibility to protect concern.

A good deal also remains to be done, not least in the corridors and chambers of the United Nations itself, to ensure that the norm itself continues to enjoy the kind of unanimous support its articulation received in 2005. A number of states have subsequently expressed what has been described as 'buyers' remorse' for their earlier vote, and there has been some anxiety that, in the context of a forthcoming debate in the General Assembly on the subject - around the Secretary General's report drafted by his Special Adviser Edward Luck [2] - there would be a move to reopen and dilute the language of 2005, rather than focusing on practical measures to ensure the more effective implementation of the principle in the future.

I believe these concerns are somewhat overstated, but they nonetheless point to the very real necessity for advocates and supporters of the responsibility to protect to be very clear about the scope and limits of the norm, and not to take positions in relation to it which would have the effect of significantly reducing either its attractiveness in principle or its capacity to be operationalised.

The Responsibility to Protect and Environmental Emergencies

It is from this perspective that I would strongly argue that we need to be very careful indeed about even floating the idea of extending the reach of the responsibility to protect to environmental emergencies. Of course one can can argue, as a matter of ordinary English language useage, and as a matter of good public policy, that the international community has a responsibility to protect people from natural disasters and environmental catastrophes as much as any other kind of actual or potential catastrophe. And one might mention as well, in this context, protection from the ravages of HIV/AIDS worldwide; the proliferation of nuclear weapons and other weapons of mass destruction; the ready availability of small arms and the use of land mines and cluster bombs. But if one is looking for umbrella language to bring these issues and themes together, it is much more appropriate to use a concept like "human security" than to say these are proper applications of the new international norm of "the responsibility to protect."

It is not just a matter here of making the formal point that these cases are clearly not intended to be subsumed under the various descriptions of mass atrocity crimes that appear in the World Summit outcome document and the relevant lead-up reports. The argument is a more practical one: if R2P is to be about protecting, as the former Canadian Foreign Minister not so long ago suggested, the Inuit people of the Arctic Circle from the ravages of climate change -- if it is be about protecting everybody from everything -- it will end up protecting nobody from anything. The whole point of embracing the new language of "the responsibility to protect" is that it is capable of generating an effective, consensual response to extreme, conscience-shocking cases in a way that "right to intervene" language simply could not. We need to preserve the focus and bite of "the responsibility to protect" as a rallying cry in the face of mass atrocities.

A further problem with stretching the R2P concept to embrace what might be described as the whole human security agenda is that this immediately raises the hackles of those who see it as the thin end of a totally interventionist wedge-as giving an open invitation for the countries of the North to engage to their hearts' content in the missions civilisatrices that so understandably anger those in the global South, who have experienced it all before. That trouble is compounded when it is remembered that coercive military intervention, while absolutely not at the heart of the R2P concept, is nonetheless a reactive response that cannot be excluded in really extreme cases. So any understanding of R2P as a very broad-based doctrine, which would open up at least the possibility of military action in a whole variety of policy contexts, is bound to give the concept a bad name.

This issue was thrown into stark relief by the dilemma facing the international community when, in May 2008, the ruling military regime of Burma/Myanmar dragged its feet badly in responding to offers of international aid following the catastrophic Cyclone Nargis with its tidal surge that devastated the Irrawaddy delta, directly killing over 130,000 people and putting scores of thousands more at risk from disease, starvation and exposure. Was this, or was it not, an R2P case of a kind that would conceivably justify coercive military intervention for the explicit purpose of delivering the necessary aid? The short answer is that natural disasters, as such, are not R2P situations, but they can be if mass atrocity crimes are also involved, and while this could have been the case here - and the issue certainly deserved close scrutiny - in the event it was not.

The Myanmar case is worth teasing out in a little more detail. When French Foreign Minister Bernard Kouchner made an initial statement arguing that the generals' dilatory response justified coercive intervention under the "responsibility to protect" principle, and proposed that the Security Council pass a resolution which "authorises the delivery and imposes this on the Burmese government", he generated a storm of controversy.[3] This was partly because of a fear that this threat would be counterproductive in winning any still-possible cooperation from the generals, but more because it was seen as realising the worst anxieties of R2P opponents, opening up the spectre of military intervention on a human security issue - here natural disaster relief -- not related to mass atrocity crimes.

But what if man-made mass atrocity crimes were also involved, and Kouchner had put the argument expressly in these terms (as he and others in fact later did)? What if the Burmese military regime's inaction, and resistance to any external help notwithstanding its immediate availability in large quantities, had - instead of giving way to eventual significant cooperation - continued to the point that large numbers of people were actually suffering and beginning to die in significant numbers? Would it not be possible to argue in these circumstances that, by omission if not by act, the regime was in fact committing crimes against humanity?

The definition of crimes against humanity (in the Rome Statute establishing the International Criminal Court , as well as in customary international law) embraces, along with widespread or systematic murder, torture, persecution and the like, "other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health."[4] Also potentially applicable in the Myanmar case was the international crime of "extermination", defined in the Rome Statute as including "intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population".[5]

The most problematic aspect of applying all this language to the Myanmar case might appear to be the "intentionality" requirement - given that what would most likely have been in issue here was not so much direct intention to cause suffering and death, but reckless indifference as to whether such harm occurred. But in fact the Rome Statute defines a person has having intent where "in relation to a consequence, the person means to cause that consequence, or is aware that it will occur in the ordinary course of events"[6] - a formulation apparently broad enough to encompass common law notions of recklessness, eg, Glanville Williams ("the state of mind of one who knows that a consequence is likely to follow from his conduct but follows his course notwithstanding")[7] or to similar effect in the U.S. Model Penal Code.[8]

Of course, even if a prima facie case could have been made for the commission by the regime of one or other mass atrocity crime, that would not have been, in itself, enough to justify a coercive military intervention under responsibility to protect principles: the UN language contemplates the use of coercive military force only with Security Council endorsement, and all the R2P traveaux preparatoires, from the ICISS report to the High Level Panel and Secretary-General's Reports,[9] insist that such force should only be applied as a last resort, after prevention has failed, when it is clear that no less extreme form of reaction could possibly halt or avert the harm in question, that the response is proportional to that harm, and that on balance more good than damage will be done by the intervention. Even if the military intervention here had taken the form only of helicopter air drops and boat landings of supplies, it may have been practically ineffective, in the absence of a supporting relief operation on the ground, and - by generating a response from the Burmese military - may have ignited a full-blown conflict that, quite apart from its other impacts, could only have added further to the misery of the cyclone victims.[10]

In the event the feared post-cyclone disaster was avoided: enough assistance was delivered by local nongovernmental organizations, foreign relief organizations with personnel already in-country, the military itself, and external relief organizations it finally allowed - mainly through Asian intermediaries - to deliver substantial supplies. While the affair overall was not very helpful in the short term in consolidating support for the responsibility to protect norm, at least it generated a serious international debate about R2P that appears to have advanced, if only a little, international understanding of the scope and limits of the norm along the lines here suggested.[11] And it is fair to say that if an environmental emergency in the future raised the same sorts of concerns about the inadequacy of a government response being on such a scale that it could be characterised as involving the reckless infliction of great suffering, the R2P argument would be very relevant indeed.

Of course, it remains always very tempting to broaden R2P's application beyond the actual or feared commission of mass atrocity crimes: it is the case that issues of civilian protection (from loss of life, injury, economic loss, and assaults on human dignity) are always involved in any deadly conflict, whatever its cause and whatever its scale, and in any significant human rights violation. And, of course, it is true that some full-fledged R2P mass atrocity situations evolve out of less extreme human rights violations, or out of general conflict environments.

At a more general level, it has recently been argued, with some persuasiveness, by Lloyd Axworthy and Alan Rock[12] that when R2P is 'unbundled' into its 'foundational principles' then these "can be applied to other problems that engage humanity as a whole." The principles in question are "the continued recognition of the primacy of the sovereign state as the 'first responder'; the duty of the international community to support the state in meeting that responsibility; and the refusal of the international community in areas of global priority to accept the single state's failure or refusal to act as the last word". The authors acknowledge in a footnote that "R2P itself" is uniquely applicable to mass atrocity crimes, not such a wider array of problems, and that it would in fact be "damaging to R2P itself" to so apply it - but this message is rather diluted by the overall thrust of their article, reflected in its title R2P: A New and Unfinished Agenda, and by the devotion of several pages of argument to climate change as a key exemplar of that new agenda.

My bottom line, again, is simply that any widening of the application of R2P terminology, expressly or by implication, beyond its core business of addressing mass atrocity crimes is dangerous from the perspective of undermining R2P's utility as a rallying cry. If anything else is bundled under the R2P banner - be it conflict generally, human rights generally, human security generally, environmental emergencies specifically, or anything else -- we run a serious risk of diluting its capacity to mobilize international consensus in the cases where it is really needed. And that would be very bad news.

[1] See for a full account of the evolution and application of the R2P norm, including its application to environmental crises, Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All ( Brookings Institution Press, 2008)

[2] UN General Assembly, Implementing the responsibility to protect: report of the Secretary-General, 12 January 2009.A/63/677.

[3] For Kouchner's widely reported statement see, for example, Darren Schuettler, "Myanmar must act now to clear aid red tape", Reuters, May 7, 2008, available at www.reuters.com/article/featuredCrisis/idUSBKK328448. For some of the reaction it engendered, see Seth Mydans, "Myanmar Faces Pressure to Allow Major Aid Effort", New York Times, May 8, 2008; Louis Charbonneau, "China, Indonesia reject France's Myanmar push", Reuters, May 8, 2008; James Blitz, "Western diplomats assess risks of unilateral intervention", Financial Times, May 10, 2008; and Maggie Farley, "U.N. struggles over how to help nations that reject aid", LA Times, May 14, 2008.

[4] Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, art. 7(1)(k), available at www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf.

[5] Ibid, art. 7(2)(b).

[6] Ibid, art. 30(2)(b).

[7] The Mental Element in Crime (1965), p. 55.

[8] "A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves culpability of a high degree." U.S. Model Penal Code (1985) 2.02(2)(c).

[9] ICISS, The Responsibility to Protect (Ottawa: International Development Research Center, 2001), pp. xii, 35-37; High-Level Panel on Threats, Challenges, and Change, A More Secure World: Our Shared Responsibility (United Nations, 2004), pp. 66-67, 106-07; Kofi Annan, In Larger Freedom: Towards Development, Security and Human Rights for All, A/59/2005 (United Nations, 2005), pp. 43, 83.

[10] See further my response to Bernard Kouchner's initial statement, circulated widely in the UN and subsequently published as Gareth Evans, "Facing Up to Our Responsibilities", The Guardian, May 12, 2008, which appeared to have some influence in steering the R2P debate back along these lines.

[11] See, for example, "To Protect Sovereignty, or Protect Lives?" The Economist, May 15, 2008; Timothy Garton Ash, "We Have a Responsibility to Protect the People of Burma. But How?" The Guardian, 22 May 2008; Ramesh Thakur, "Getting Real with R2P", Daily Times (Lahore), May 28, 2008; David Rieff, "Humanitarian Vanities", New York Times Magazine, June 1, 2008, p. 13. For some other commentary see the materials collected at the Responsibility to Protect - Engaging Civil Society (R2PCS) website, www.responsibilitytoprotect.org/index.php/latest_news/1686.

[12] Lloyd Axworthy and Allan Rock, "R2P: A New and Unfinished Agenda", Global Responsibility to Protect, 1 (2009) p. 64.