Comparing two religious perspectives on war

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The Responsibility to Protect: Rethinking Humanitarian Intervention Author(s): Gareth Evans Source: Proceedings of the Annual Meeting (American Society of International Law), Vol. 98 (

MARCH 31-APRIL 3, 2004), pp. 78-89 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/25659900 Accessed: 10-08-2015 17:17 UTC

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78 ASIL Proceedings, 2004

Pentagon and is presently an adviser to the Kerry campaign. Mr. Feinstein is also cochair with Anne-Marie Slaughter of the ASIL-Council on Foreign Relations Project on Old Rules, New Threats and published with Dean Slaughter the article in the January/February issue of Foreign Affairs that introduced the concept of "a duty to prevent."3

The Responsibility to Protect: Rethinking Humanitarian Intervention

by Gareth Evans*

The Policy Challenge

Until terrorism overwhelmed international attention after 9/11, the really big issue in inter national relations?the one that must have launched a thousand Ph.Ds?was the "right of humanitarian intervention," the question of when, if ever, it is appropriate for states to take coercive action, in particular coercive military action, against another state in order to protect people at risk in that other state. Man-made internal catastrophe, and what the international

community should do about it, is what more than anything else preoccupied international rela tions practitioners, commentators, and scholars in the decade after the Cold War.

The cases on which the debate centered are all burnished in our memory. They are cases both when intervention happened and when it did not:

The debacle of the international intervention in Somalia in 1993;

The pathetically inadequate response to genocide in Rwanda in 1994;

The utter inability of the UN presence to prevent murderous ethnic cleansing in Srebrenica in Bosnia in 1995; and

NATO's intervention, without Security Council approval, in Kosovo in 1999.

These were not the only the cases. There was northern Iraq, Liberia, Haiti, and Sierra Leone, as well as the more marginal situation of East Timor (marginal because Indonesia, under pres sure, eventually consented to the Australian-led intervention so that it was not strictly speaking "coercive"). But Somalia, Bosnia, Rwanda, and Kosovo are the ones we remember most starkly. Between them they raised the full range of moral, legal, political, and operational issues that

the debate on humanitarian intervention is all about.1 The international community handled none of these cases well or confidently. With Somalia,

Bosnia, and Rwanda, such interventions as did occur were too little too late, misconceived,

poorly resourced, poorly executed, or all of the above. As for NATO's intervention in Kosovo,

Security Council members were divided; the legal justification for action without Security

3 Lee Feinstein and Anne-Marie Slaughter, A Duty to Prevent, 83:1 foreign Aff. (Jan./Feb 2004). * President, International Crisis Group; Cochair, International Commission on Intervention and State Sovereignty

This paper was originally delivered as the 2002 Wesson Lecture in International Relations Theory and Practice, Stanford University, Feb. 27, 2002. For a distillation of the International Commission on Intervention and State

Sovereignty report, see Gareth Evans and Mohamed Sahnoun, The Responsibility to Protect, 81:6 foreign Aff. 99

(2002). 1 Since this was written, "humanitarian intervention" has burst back into prominence in the context of the U.S.-led

invasion of Iraq in 2003. As weapons of mass destruction failed to turn up, and evidence of Saddam Hussein's links with terrorists failed to get stronger, defenders of the war were forced back to supporting it on straightforward humanitarian intervention grounds: Saddam's gross mistreatment of his own people, which reached genocidal levels in his use of chemical weapons against Kurds in the late 1980s and his massacre of southern Shiites in the early 1990s. Opponents of the Iraq war have responded by saying this was not the real motive for intervention at the time and cannot credibly be claimed as such after the event. Moreover, they say, if it had been the real motive, it

was not

good enough to justify going to war when all other considerations were taken into account. With opinion as heated

and divided as ever, it has become necessary all over again to try to untangle the issues.

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Rethinking Collective Action 79

Council authority was asserted but largely unargued; the moral or humanitarian justification for the action, which on the face of it was much stronger, was clouded by allegations that the inter vention triggered more carnage than it avoided; and the means by which the allies waged the war continue, justly or not, to be much complained of.

Every one of the big cases generated major international controversy?usually too late to be useful and never enough to settle the issues of principle once and for all, especially the role and

responsibility of the United Nations and the nature and limits of state sovereignty. By the dawn of the new century the debate remained wholly inconclusive. Intense disagreement persisted as to whether there was a right of intervention and if so, how and when it should have been

exercised, and under whose authority. UN Secretary-General Kofi Annan is one of those who has tried hardest to get sense and

coherence into it all. Deeply troubled by the issues and the inconsistency of the international

response, in 1999 and again in 2000 he challenged the General Assembly to find a way through these dilemmas, posing the issue in the starkest of terms: "If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica? to gross and systematic violations of human rights that affect every precept of our common

humanity?"2 Annan's own view was clear. "Surely no legal principle?not even sovereignty?can ever

shield crimes against humanity," he said in 1999.3 As recently as his Nobel Peace Prize Lecture in Oslo in December 2001 he was still saying it: "The sovereignty of states must no longer be used as a shield for gross violations of human rights."4

In the General Assembly debates of 1999 and 2000 that followed his initial call, the Secre

tary-General was rewarded for the most part by cantankerous exchanges in which fervent

supporters of intervention on humanitarian or human rights grounds and anxious defenders of state sovereignty dug themselves deeper and deeper into opposing trenches, from which they have still not yet emerged. . The academic debate was not much more helpful. There has been a great deal of writing,

much of it very thoughtful but none of it very influential. The best-known studies have probably been those commissioned by the Danish government through its think-tank DUPI, the Nether lands government through its Advisory Council on International Affairs, and the Swedish

government through its International Commission on Kosovo, chaired by Richard Goldstone and Carl Tham. A common theme of these reports, like many other scholarly analyses, has been to draw a distinction between "legal" and "legitimate" interventions. Intellectually comforting though this taxonomical distinction may be, it does not offer much guidance to political deci sion makers about what in practice they should actually do.

Now, to compound the misery for those of us who like intellectual cleanliness and godliness in these matters and do not like to see such big issues unresolved, since 9/11 the debate on all this has more or less disappeared from public view. The preoccupation now is with how to cap ture and punish terrorists and how to mount sustainable defenses against them and the states

who support them. At least since President Bush's 2004 State of the Union Address, we are all now further engaged in trying to understand the nature and limits of the appropriate response to those states that threaten others, explicitly or implicitly, by developing weapons of mass destruction.

The conceptual issues here are very old ones: What are states faced with actual or appre hended attacks on their territory or their own nationals to do by way of self-defense action

(authorized under Article 51 of the UN Charter) or under the authority of Chapter VII of the

2 We the Peoples: The Role of the United Nations in the 21st Century, Millenium Report of the Secretary-General

of the United Nations 48 (Sept. 2000) . 3 Secretary-General's speech to the 54th Session of the General Assembly, Sept. 20, 1999. 4 The Nobel Lecture given by the Nobel Peace Laureate 2001, Oslo, Dec. 10, 2001.

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80 ASIL Proceedings, 2004

UN Charter (which authorizes the use of force "to maintain or restore international peace and

security"). These issues, which are hugely important in their own right, also have many un

resolved loose ends of their own, both in principle and practice, but they are quite distinct from

those involved in the humanitarian intervention debate. That debate is about the justification for intervening forcibly in other states to protect that state's own nationals, something on which

the UN Charter is quite silent. Yet the debate about humanitarian intervention has not gone away; nor will it go away so

long as human nature remains as fallible as it is. Internal conflict is still the norm when it comes

to serious violence: Of the fifty-six armed conflicts between 1990 and 2000 identified by the

Stockholm International Peace Research Institute (SIPRI) as major, in that they involved more

than a thousand battle-related deaths in one year, fifty-three of them were intrastate. Intrastate

conflict is a phenomenon that exploded with the end of the Cold War as the checks and balances

and internal suppression that had maintained uneasy peace for so long fell away, but it shows,

unhappily, no sign of diminishing. It can only be a matter of time before reports emerge again, from Central Africa, Central or

South Asia, the Balkans, or somewhere else, of massacres or mass starvation, rape or ethnic

cleansing, occurring or apprehended. Then the question will arise all over again, in the Security

Council, in political capitals, and in the media: What do we do?

This time we must have answers. Few things have done more harm to our shared ideals that

we are all equal in worth and dignity and that the earth is our common home than the inability of the community of states to prevent genocide, massacre, and ethnic cleansing. The last decade

was not, on any view, a proud one. The beginning of a new century, here as elsewhere, gives us the psychological chance to wipe the slate clean?to think through the issues afresh, to find

new common ground, and to ensure, above all, that there are no more Rwandas.

The International Commission on Intervention and State Sovereignty

It was against this background, and to respond to this policy challenge, that in September 2000 the government of Canada, on the initiative of then-Foreign Minister Lloyd Axworthy, with the support of several major U.S. foundations, the assistance of the UK and Swiss govern

ments, and the cooperation of many others, established the International Commission on Inter

vention and State Sovereignty, which I cochaired along with the Algerian diplomat and UN

Special Adviser Mohamed Sahnoun.

The objectives of the Commission were essentially threefold, although we never quite articu

lated them in such stark terms. It was to produce a guide to action on responses by the inter

national community to internal, man-made, human-rights violating catastrophe, which was:

intellectually credible and satisfying, not profoundly offending either the lawyers or

philosophers (and hopefully not international relations theorists either, although I am not

sure that these days international theory is penetrable enough for anyone else to know whether they are being offended or not, or to mind very much if they did know);

not likely to be rejected out of hand by either North or South, the permanent five mem

bers of the Security Council or any other major international constituency; in other

words, be capable of acceptance in principle by governments as a framework for action;

and

capable in practice of actually motivating action and mobilizing support when a situation

demanding action arises.

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Rethinking Collective Action 81

The Commission has now published and presented its final report,5 and our hope is that we

might just succeed, where others have failed, in adding value in all three respects. There are

several good reasons why we may not be totally deluding ourselves.

Firstly, this is by far the most representative and consultative exercise yet attempted in this area. The Commission had a high profile and high-quality membership, evenly divided between

developed and developing countries. From the South there was Mohamed Sahnoun, Fidel

Ramos, Cyril Ramaphosa, Eduardo Stein, and Ramesh Thakur; from the North, in addition to

me, there was Lee Hamilton, Gisele Cote-Harper, Michael Ignatieff, and Klaus Naumann; with, in addition, Vladimir Lukin from Russia and Cornelio Sommaruga, the former head of the International Committee of the Red Cross, whom our Chinese friends might describe as a North erner with Southern characteristics. We travelled endlessly and consulted our heads off: the Commission met in Asia and Africa as well as North America and Europe, and held roundtables and other consultations in Latin America, the Middle East, Russia, and China.

Secondly, the exercise has been very comprehensive, addressing not just the legal and moral dilemmas that have been at the heart of most of the academic and policy debate about coercive intervention so far but operational and political issues as well. It has taken into account and tried to build upon all the best work done in the past; the report has attached to it a substantial volume containing newly commissioned research and an annotated bibliography of previous writing.

Thirdly, the whole exercise has had a sharply practical political focus. None of us want to see the report disappearing from sight soon after its release, having no other life than in libraries and research seminars. We have recommended that its conclusions be debated in the UN General Assembly and picked up and adopted by the Security Council. The Secretary-General, who has spoken publicly in very warm praise of the report, has indicated his willingness to take this forward. Preliminary responses from a number of key states, both North and South, have also been positive. That said, no one can have any illusions about the degree of difficulty in

getting adopted, in either the Assembly or Council, resolutions or even informal guidelines drafted with any precision, clarity or teeth.

Above all, fourthly, the hope is that the new Commission's report would add value by being innovative?bringing some genuinely new ways of thinking about the issue into the debate, and

making it possible to bridge the gulf that has characterized state attitudes so far. The conceptual starting point in this endeavor has been to turn the whole debate on its head, recharacterizing it not as an argument about the "right to intervene" but rather about the "responsibility to pro tect"?a responsibility owed by all sovereign states to their own citizens in the first instance, but one that must be picked up by the international community of states if that first-tier respon sibility is abdicated or cannot be exercised. How do we make the argument for this international responsibility to protect? What precisely

is its content? What are the circumstances in which it can and should be exercised? Does it help us any more than talk of a "right of humanitarian intervention" helped in wrestling with the

questions of legitimacy, authority, operational effectiveness, and political will that have dogged this whole debate? It is to these questions that I now turn, starting (as one has to) with just what is, and is not, involved in the modern notion of sovereignty.

Sovereignty and the RESPONsroiuTY to Protect

The essence of the notion of sovereignty, in the Westphalian system that has governed interna tional relations since the seventeenth century, has been control: the capacity to make authoritative

5 The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty

(91pp with CD insert), plus Supplementary Volume, Research, Bibliography,Background(410 pp), IDRC, Canada, Dec. 2001. The Report and Supplementary Volume may be downloaded from the Commission Web site, at <http://www.iciss-ciise.gc.ca>.

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82 ASIL Proceedings, 2004

decisions about the people and resources within the territory of the state. The principle of sov

ereign equality of states is enshrined in Article 2.1 of the UN Charter, and the corresponding norm of nonintervention is enshrined in Article 2.7: A sovereign state is empowered in inter national law to exercise exclusive and total jurisdiction within its territorial borders; other states have a corresponding duty not to intervene in its internal affairs. After World War II, member

ship in the United Nations became the final symbol of independent sovereign statehood and thus the seal of acceptance into the community of nations. The UN is an organization dedicated to maintaining international peace and security through protecting the territorial integrity, political independence, and national sovereignty of its member states.

These verities are now nothing like so clear-cut as they once seemed. Not only are the over

whelming majority of today's armed conflicts internal, not inter-state, but the proportion of civilians to military killed in them increased from about one in ten at the start of the twentieth

century to around nine in ten by its close. This has presented the organization with a major difficulty: how to reconcile its foundational principles of member state sovereignty and the

accompanying primary mandate to maintain international peace and security ("to save succeed

ing generations from the scourge of war") with the equally compelling mission to promote the interests and welfare of people within those states ("We the peoples of the United Nations").

The key to meeting this difficulty is to rethink sovereignty in terms of its essence being not so much control as responsibility. The Charter of the United Nations is itself an example of a

set of international obligations voluntarily accepted by member states. On the one hand, in

granting membership in the United Nations, the international community welcomes the signa tory state as a responsible member of the community of nations. On the other hand, the state

itself, in signing the Charter, accepts the responsibilities of membership that flow from that

signature.

Thinking of sovereignty as responsibility has a threefold significance:

It implies that the state authorities are responsible for the functions of protecting the

safety and lives of citizens and promotion of their welfare.

It suggests that national political authorities are responsible to their citizens internally, as well as to the international community through the United Nations.

It means that the agents of state are responsible for their actions; that is to say, they are accountable for their acts of commission and omission.

The case for thinking of sovereignty in these terms is much strengthened by the ever-increasing

impact of international human rights norms and the increasing impact in international discourse

of the concept of human security. Sovereignty as responsibility is being increasingly recognized in state practice.

The adoption of new standards of conduct for states in protecting and advancing international

human rights has been one of the great achievements of the post-World War II era. The Uni

versal Declaration and the Covenants on civil and political and on economic, social, and cul

tural rights mapped out the international human rights agenda, set the benchmark for state con

duct, inspired many national laws and international conventions, and have led to creation of

national infrastructures for protecting and promoting of human rights. Accompanying all this

has been a gradual transition from a culture of sovereign impunity to a culture of national and

international accountability, with the international human rights norms and instruments being used as the concrete point of reference against which to judge state conduct.

Reinforcing this, in the last decade or so there has been an important shift in international

thinking about what is involved in the concept of security, extending it beyond states to people: their physical safety, their economic and social well-being, respect for their dignity and worth

as human beings, and protection of their human rights and fundamental freedoms. It is in

creasingly being acknowledged that the fundamental components of human security?the

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Rethinking Collective Action 83

security of people against threats to life, health, livelihood, personal safety, and human dignity? can be put at risk not only by external aggression but also by factors within a country, including "security" forces. Again the focus has become not so much what sovereign states are entitled to do but what they are not entitled to do in the exercise of their responsibility to their own

people. It is evident that there has been a large and growing gap between the codified best practice

of international behavior as articulated in the UN Charter, whose explicit language emphasizes the respect owed to state sovereignty, and actual state practice as it has evolved in the fifty-six years since the Charter was signed. That gap demonstrates the limits of sovereignty. We in the Commission were intrigued, in the course of our worldwide travels and consul

tations, to find the extent to which that gap was acknowledged. Defense of state sovereignty by even its strongest supporters did not raise any claim of the unlimited power of a state to do what it wants to its own people; we heard no such claim at any point. It was acknowledged that

sovereignty implies a dual responsibility: externally, to respect the sovereignty of other states, and internally, to respect the dignity and basic rights of all the people within the state. In inter national human rights covenants, in UN practice, and in state practice itself, sovereignty is now understood as embracing this dual responsibility. Sovereignty as responsibility has become the minimum content of good international citizenship.

While there is not yet a sufficiently strong basis to claim the emergence of something as for mal as a new principle of customary international law, growing practice in states and regional organizations as well as Security Council precedent do suggest an emerging norm, a guiding principle, that can usefully be described, in the Commission's language, as "the responsibility to protect." Whatever its foundations in theory and practice, there is good reason to believe that speaking

of "responsibility to protect" rather than the more familiar "right to intervene" will be very useful in the policy debate, helping enormously to "de-prickle" it and to get state actors in

particular thinking afresh about what the real issues are. Changing the terminology from "inter vention" to "protection" allows us, for a start, to get away from the language of "humanitarian intervention," which has always enraged humanitarian relief organizations like the Red Cross,

who hate the association of the word "humanitarian" with military activity. Even beyond that, talking about the "responsibility to protect" rather than the "right to inter

vene" has three big advantages:

The responsibility to protect implies evaluating the issues from the point of view of those seeking or needing support, rather than those who may be considering interven tion. This terminology refocuses the international searchlight back where it should always be: on the duty to protect communities from mass killing, women from system atic rape, and children from starvation.

The responsibility to protect acknowledges that the primary responsibility rests with the state concerned; only if the state is unable or unwilling to fulfill this responsibility, or is itself the perpetrator, does it become the responsibility of the international community to act in its place.

The responsibility to protect is an umbrella concept, embracing not just the "responsi bility to react" but also the "the responsibility to prevent' and the "responsibility to rebuild" Both these dimensions have been much neglected in the traditional humanitarian intervention. Bringing them back to center stage to rank in priority alongside the issue of reaction should do much to make the concept of reaction itself more palatable.

The responsibility to prevent requires addressing both the root causes and the more direct and immediate causes of internal conflict and other man-made crises that put populations at risk,

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84 ASIL Proceedings, 2004

using all the complex array of measures available: political and diplomatic, legal, economic, and military. The Commission report makes the point, in the strongest and most explicit terms, that prevention is the single most important dimension of the responsibility to protect and that it is more than high time for both national governments and the international community to be

closing the gap between rhetorical support for prevention and tangible commitment. The responsibility to rebuild means following through after the event; providing full assis

tance for recovery, reconstruction, and reconciliation; and addressing in the process the causes

of the harm the intervention was designed to halt or avert. If military intervention action is taken?because of a breakdown or an abdication of a state's own capacity and authority in

discharging its own responsibility to protect?there should be a genuine commitment to helping build a durable peace and promoting good governance and sustainable development.

Principles for Military Intervention

As critical as the dimensions of prevention and rebuilding are, the core of the debate?and the most difficult conceptual and political issue?is the issue of reaction. The argument is that

the responsibility to protect, whatever else it encompasses, implies above all else a responsibil ity to react to situations of compelling need for human protection. When preventive measures

fail to resolve or contain the situation and when a state is unable or unwilling to redress the situ

ation, then intervention by other members of the broader community of states may be neces

sary. Coercive measures may include political, economic, or judicial measures, and in

extreme?but only extreme?cases, they may also include military action.

But what is an extreme case? Where should we draw the line in determining when military intervention is primafacie defensible? What other conditions or restraints, if any, should apply in determining whether and how intervention should proceed? Most difficult of all, who makes

all these decisions? Who should have the ultimate authority to determine whether an intrusion

into a sovereign state, involving the use of deadly force on a potentially massive scale, should

actually go ahead? The Commission wrestled long and hard with all these questions (and the enormous literature

they have generated), but in the event the task was easier than it appeared. While there are

almost as many different lists of criteria as there are contributions to the writing and political debate on this subject, of differing length and terminology, in reality there is an enormous

amount of common ground on the core issues. All the relevant decision-making criteria seemed

to us capable of being summarized under the following six headings:

Just cause (the threshold criteria for action)

Right intention

Last resort

Proportionality

Reasonable prospects (what we called other precautionary criteria)

Right authority (the critical question of who decides: just the Security Council, or

anyone else?)

All this terminology will no doubt sound familiar. It has a long intellectual pedigree in war

theory alone that goes back to the early Middle Ages. But being a very PC kind of Commis

sion?claiming to articulate universal values rather than any particular cultural subset?we

decided that when it came to emphasizing particular Christian and Eurocentric connections, discretion was the better part of valor.

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Rethinking Collective Action 85

The Just Cause Threshold The threshold test needs to be set high and tight, for both conceptual reasons (military inter

vention for human protection purposes must be regarded as an exceptional and extraordinary measure) and practical political ones (if intervention is to happen when it is most necessary, it cannot be called upon too often). The Commission's judgment was that military intervention for human protection purposes is justified in two broad sets of circumstances, and two only, namely in order to halt or avert:

large-scale loss of life, actual or apprehended, with or without genocidal intent, that is the product either of deliberate state action, state neglect or inability to act, or a failed state situation; or

large-scale "ethnic cleansing," actual or apprehended, whether carried out by killing, forced expulsion, acts of terror, or rape (where rape is perpetrated as another form of terrorism or as a means of changing the ethnic composition of a group).

While we made no attempt to quantify "large scale," we made it absolutely clear that military action can be legitimate as an anticipatory measure in response to clear evidence of likely large scale killing or ethnic cleansing. Without this possibility of anticipatory action, the international

community would be placed in the morally untenable position of being required to wait until

genocide begins before being able to take action to stop it. The threshold criteria we articulated are wide enough to cover not only the deliberate perpe

tration of horrors such as those that occurred or were anticipated in Bosnia, Rwanda, and

Kosovo, but also situations of state collapse and the resultant exposure of the population to mass starvation or civil war (as in Somalia). Also potentially covered would be overwhelming natural or environmental catastrophes that are not in themselves man-made but when the state concerned is unwilling or unable to cope or call for assistance, and significant loss of life is

occurring or threatened. What are not covered by the "just cause" threshold we set are situations of human rights

violations (such as systematic racial discrimination or political oppression) that fall short of

outright killing or ethnic cleansing; the overthrow of democratically elected governments; and the rescue by a state of its own nationals on foreign territory. Although eminently deserving of external action of various kinds?including, in appropriate cases, political, economic, or mili

tary sanctions?these are not cases that would seem to justify military action to protect people.

Right Intention The primary purpose of the intervention, whatever other motives the intervening states may

have, must be to halt or avert human suffering. Overthrow of regimes is not as such a legitimate objective, although disabling a regime's capacity to harm its own people may be essential to

discharging the mandate of protection (and what is necessary to achieve that disabling will vary from case to case). One way of helping to ensure that the "right intention" criterion is satisfied is for military intervention to always take place on a collective or multilateral rather than single country basis. Another is to look to whether, and to what extent, the intervention is actually supported by the people for whose benefit the intervention is intended. Yet another is to look to whether, and to what extent, the opinion of other countries in the region has been taken into account and is supportive.

Complete disinterestedness?the absence of any narrow self-interest at all?may be an ideal that is not likely always to be a reality; mixed motives, in international relations as everywhere else, are a fact of life. Moreover, the budgetary cost and risk to personnel involved in any mili

tary action may in fact make it politically imperative for the intervening state to be able to claim some degree of self-interest in the intervention, however altruistic its primary motive might actually be.

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86 ASIL Proceedings, 2004

To those domestic constituencies who may actually demand of their governments, when it comes to intervention for human protection purposes, that they not be moved by altruistic "right intention," the best short answer may be that these days good international citizenship is a

matter of national self-interest. With the world as close and interdependent as it now is, and with crises in "faraway countries of which we know little" as capable as they now are of gen

erating major problems elsewhere (with terrorism, refugee outflows, health pandemics, nar

cotics trafficking, organized crime, and the like), it is strongly arguable that it is in every

country's interest to contribute cooperatively to resolving such problems, quite apart from the humanitarian imperative to do so.

Last Resort

Every diplomatic and nonmilitary avenue for the prevention or peaceful resolution of the humanitarian crisis must have been explored. The responsibility to react?with military coer

cion?can only be justified when the responsibility to prevent has been fully discharged. This does not necessarily mean that every such option must literally have been tried and failed; often there will simply not be the time for that process to work itself out. What it does mean is that

there must be reasonable grounds for believing that, in all the circumstances, if the measure had

been attempted it would not have succeeded.

Proportional Means The scale, duration, and intensity of the planned military intervention should be the minimum

necessary to secure the humanitarian objective in question. The means must be commensurate

with the ends and with the magnitude of the original provocation. The effect on the political system of the country targeted should be limited, again, to what is strictly necessary to accom

plish the purpose of the intervention. While it may be a matter for argument in each case what

the precise practical implications of these strictures are, the principles are clear enough.

Reasonable Prospects Military action can only be justified if it stands a reasonable chance of successfully halting

or averting the atrocities or suffering that triggered the intervention. Military intervention is not

justified if actual protection cannot be achieved, or if the consequences of embarking upon the

intervention are likely to be worse than if there is no action at all. In particular, a military action

for limited human protection purposes cannot be justified if in the process it triggers a larger conflict. Some human beings simply cannot be rescued except at unacceptable cost, perhaps of a larger regional conflagration, involving major military powers. In such cases, however

painful the reality, coercive military action is no longer justified.

Applying this precautionary principle would on purely utilitarian grounds be likely to pre clude military action against any one of the five permanent members of the Security Council

even if all the other conditions for intervention described here were met. It is difficult to imag ine a major conflict being avoided, or success in the original objective being achieved, if such

action were mounted against any of them. The same is true of major powers who are not

permanent members of the Security Council. This raises the familiar question of double

standards, to which the only answer can be this: The reality that interventions may not be able to

be mounted in every case where there is justification for them is no reason for them not to be

mounted in any case.

Right Authority When it comes to authorizing military intervention for human protection purposes, the argu

ment is compelling that the United Nations, in particular the Security Council, should be the

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Rethinking Collective Action 87

first port of call. The difficult question?starkly raised by Kosovo?is whether it should be the last.

The United Nations is unquestionably the principal institution for building, consolidating, and using the authority of the international community. It was set up to be the linchpin of order and stability, the framework within which members of the international system negotiated agreements on the rules of behavior and the legal norms of proper conduct in order to preserve the society of states. Thus, simultaneously, the United Nations was to be the forum for medi

ating power relationships; for accomplishing political change that the international community holds to be just and desirable; for promulgating new norms; and for conferring the stamp of collective legitimacy.

The authority of the United Nations is underpinned not by coercive power but by its role as the ensurer of legitimacy. The concept of legitimacy acts as the connecting link between the exercise of authority and the recourse to power. Attempts to enforce authority can only be made

by legitimate agents of that authority. Collective intervention blessed by the United Nations is regarded as legitimate because it is duly authorized by a representative international body; unilateral intervention is seen as illegitimate because it is self-interested. Those who challenge or evade the authority of the United Nations as the sole legitimate guardian of international

peace and security in specific instances run the risk of eroding its authority in general and also

undermining the principle of a world order based on international law and universal norms. There are many reasons to be dissatisfied with thS role the Security Council has played so

far: its generally uneven performance, its unrepresentative membership, and its inherent insti tutional double standards with the Permanent Five veto power. But the Commission was in

absolutely no doubt that there is no better or more appropriate body than the Security Council to deal with issues of military intervention for human protection. That was the overwhelming consensus we found in all our consultations around the world. Quite apart from the force of the

argument in principle, the political reality is that if international consensus is ever to be reached about when, where, how, and through whom military intervention should happen, it is very clear that the Security Council will have to be at the heart of that consensus. Viewed this way, the task is not to find alternatives to the Security Council as a source of authority but to make the Security Council work much better than it has.

Hopefully, the report and recommendations of the Commission will carry their own momen tum in this respect, including our recommendation (suggested by one of the P5 foreign min

isters) that the Permanent Five members of the Security Council should agree not to apply their veto power in matters where their vital state interests are not involved to obstruct the passage of resolutions authorizing military intervention for human protection purposes for which there is otherwise majority support.

If the Security Council proves unable or unwilling to act in circumstances which appear to cry out for such action, such as another Rwanda or Kosovo-like situation, the only institutional solutions that seem available are:

Consideration of the matter by the General Assembly in Emergency Special Session under the Uniting for Peace procedure (used as the basis for operations in Korea in 1950, Egypt in 1956, and the Congo in 1960), which may well in fact have delivered, and speedily, a majority recommendation for action in the Rwanda and especially

Kosovo cases.

Action within their areas of jurisdiction by regional or subregional organizations under Chapter VIII of the Charter, subject to their seeking later authorization from the Security Council (as happened with the West African interventions in Liberia in the early 1990s and Sierra Leone in 1997).

Interventions by ad hoc coalitions (or, even more, individual states) acting without the approval of the Security Council, the General Assembly, or a regional or subregional

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88 ASIL Proceedings, 2004

grouping of which the target state is a member, do not?it would be an understatement to say?find wide favor. As a matter of political reality, it would simply be impossible to find consensus on any proposals for military intervention that accepted the validity of any intervention not authorized by the Security Council or General Assembly.

That may still leave circumstances when the Security Council fails to discharge its own

responsibility to protect in a conscience-shocking situation crying out for action. It is a real

question in these circumstances as to which of two evils is the worse: the damage to interna tional order if the Security Council is bypassed or the damage to that order if human beings are

slaughtered while the Security Council stands by. The Commission responded to this dilemma by articulating two important messages for the

Security Council. The first is that if the Security Council fails to discharge its responsibility in

conscience-shocking situations crying out for action, concerned individual states simply may not rule out other means to meet their gravity and urgency. There is a risk then that such

interventions, without the discipline and constraints of UN authorization, will not be conducted for the right reasons or with the right commitment to precautionary principles.

The second message is that if, following the failure of the Council to act, a military interven tion is undertaken by an ad hoc coalition or individual state that does fully observe and respect all the necessary threshold and precautionary criteria, and if that intervention is seen by world

public opinion to have been carried through successfully, that may have enduringly serious

consequences for the stature and credibility of the United Nations itself. That is really what

happened with the U.S. and NATO intervention in Kosovo, and the United Nations cannot

afford to drop the ball too many times on that scale.

Conclusion

I am not going to try to summarize, or even to address, all the issues dealt with in the Com

mission's report?for example, the discussions of operational principles (how military interven

tions should be planned and carried out) and how to mobilize political will, both international

and domestic, in support of the "responsibility to protect" approach. What I have tried to do

is address the key conceptual issues with which the Commission wrestled and put them in a

sharply real world, political, rather than purely abstract context.

Yet the Commission's contribution may prove in a sense to be more abstract than anything else. What our whole report really depends upon is the acceptance of the central big idea: the

conceptual shift from the right to intervene to the responsibility to protect. Everything else

follows from that: the emphasis on the primary responsibility of states themselves, the emphasis on prevention and rebuilding as well as simply reaction, and the force of the imperative to act

when the circumstances cry out for it.

It is wrong to be cynical about the power of ideas to influence the world of government and

intergovernmental action. If well formulated, well argued, and expressed in language that can

readily be understood, they can and do have an impact, however cynical, skeptical, or indif

ferent to general principles (as distinct from case by case "on the merits" ad hoccery) the

practitioners of that world may seem, and indeed think themselves, to be. Ideas do matter. The

Brundtland Commission, for example, by inventing the concept of "sustainable development" created a wholly new basis for constructive dialogue, previously utterly lacking, between pro

development and pro-environment activists and policy makers the world over.

As much as we might hope otherwise, nothing is more certain than that the international

community will be confronted again by events all too resonant of the 1990s agonies in the

Balkans, Haiti, Somalia, Sudan, Sierra Leone, East Timor, and elsewhere?and sooner rather

than later. Reacting to these situations in the ad hoc and often ineffective or counter-productive

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Rethinking Collective Action 89

ways we have to date is no longer the kind of luxury we can afford as interdependent global neighbors.

If the Commission's report, with its new emphasis on the "responsibility to protect" as the central governing theme, can help bring about a more systematic and balanced, less ideological, debate of the main issues by the international community, and even more if it can provide an

accepted framework for dealing with these matters as they arise in future in concrete and

positive ways, we will not have wasted our time. There must be no more Rwandas. The Commission concluded its report by saying, if we

believe that all human beings are equally entitled to be protected from acts that shock the conscience of us all, then we must match rhetoric with reality, principle with practice. We cannot be content with reports and declarations. We must, as an international community, be

prepared to act. We will not be able to live with ourselves if we do not.

A Duty to Prevent

by Lee Feinstein*

On September 23 before the UN General Assembly, Kofi Annan gave the speech that George Bush or, for that matter, the leaders of France, Germany, or any of the other members of the

Security Council should have delivered. The Secretary-General restated the familiar and justified criticisms about the risks to inter

national security posed by the assertion of a right to the preemptive use of force to prevent the

acquisition of weapons of mass destruction (WMD). He spoke not only about the dangers to international security posed by the proliferation of weapons of mass destruction, he also warned about the dangers of "proliferation of the unilateral and lawless use of force with or without

justification." But Mr. Annan followed up this criticism with another observation, which I found more com

pelling and, coming from his perspective, bolder and more interesting. He said,

We have come to a fork in the road ... It is not enough to denounce unilateralism unless we also face up squarely to the concerns that make some states feel uniquely vulnerable, since it is those concerns that drive them to take unilateral action.... We must show that those concerns can and will be addressed effectively through collective action... and we

must not shy away from questions about the adequacy and effectiveness of the rules and instruments at our disposal,... [including] the criteria for an early authorization of coer cive measures to address certain types of threats.

In short, what the Secretary-General was saying in the wake of the dispute over the Iraq war was that the time had come for the Security Council to face its nightmare if it was not to relive it.

The Secretary-General also discussed the importance of responding to genocide and other massive human rights violations. By discussing the threats posed by WMD and genocide together, he implied a link between the pioneering work of Foreign Minister Evans and his

colleague Mohamed Sahnoun and the need to think again about the rules for collective re sponses to deal with proliferation dangers in an age of catastrophic terrorism.

* Deputy Director of Studies and Senior Fellow, Council on Foreign Relations. I want to thank Charlotte Ku, Anne

Marie Slaughter, and ASIL, who have collaborated with the Council on Foreign Relations over the past year on a project titled "Old Rules, New Threats," which spawned the article "A Duty to Prevent" and which is now focusing its energies on support to the Secretary-General's High-Level Panel, on which Minister Evans serves. I particularly

want to thank Dean Slaughter, whose creativity, energy, and brain power can be found on every page of the article on which this lecture is based.

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