(Gareth Evans QC AO)
Back at the beginning of the Libyan revolution, I asked "Am I my brother's keeper" in reference to the Responsibility to Protect, or R2P. So it was with some annoyance that I missed the lecture by Gareth Evans, the former Australian Foreign Minister, and later head of the International Crisis Group at Chatham House's International Law Programme on 6 Oct 11. Evans has been a major proponent of R2P in recent years, and under R2P, the international community undertakes to ensure that the failures of the 1990s in Rwanda, Srebenica and Kosovo are not repeated - a position that made it into Paragraph 139 of the 2005 World Summit Conclusions. Para 139 states in part:
"The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity."
As this blog has previous pointed out, Para 139 is a real drafting hodgepodge, betraying the lack of unanimity in the international community. Crucially, should R2P - and especially the use of force - be allowed outside the direct consent of the UNSC acting under Chapter VII's Article 42?
The relationship between R2P and Chapter VII is critical, because at one end of the spectrum, R2P is no more than a rhetorical device, as the UNSC continues to control the use of force, even in time of humanitarian emergencies; if so, it is pointless. At the other end of the scale, R2P could be construed as bolstering (the pre-existing) right of humanitarian intervention outside of the UNSC in cases where the UNSC is unable or unwilling to act.
It is therefore with great interest that I read the transcript of Gareth Evans' 6 October speech. What's particularly striking is that Evans repeatedly ties R2P very narrowly to the UNSC rather than an expansive understanding tied to humanitarian intervention, and he then sets out a five criteria test for what he takes great care to describe as
"... legitimacy - not the criteria of legality, that's clear; Security Council support - criteria of legitimacy"
These criteria are below; though lengthy, I think it is worth quoting Evans' five-fold test in full:
The second test is whether the primary purpose of the proposed military action is actually to halt or avert the threat in question, as distinct from being about oil or bananas or whatever. They can be secondary or tertiary considerations and they could be quite relevant in helping to mobilize otherwise sceptical domestic constituencies but the intention test has to be what’s the primary motivation genuinely – is it to help or avert harm?
The third test is last resort. Has every non-military option been, if not applied in practise because that can be possibly time consuming in some cases, but has it at least been explored and found wanting and unlikely to serve the purpose.
The fourth test is one of proportionality, of a scale, the duration, the intensity of a proposed military action and the minimum necessary to meet the threat in question.
And the final and often the toughest legitimacy test is balance of consequences. Will those at risk be better or worse off as a result of such military action being taken?
(Decent shooting in Bab al Azizya, with photo credit to Elham at LFJL)
In Evans' view the 2011 Libyan intervention met all five criteria, though in his view they may have gone too far in prosecuting the conflict - in that it went further than the abstaining States were probably expecting when they allowed the passage of UNSCR 1973 (it passed 10-0-5, with Brazil, China, Germany, India and Russia abstaining), which probably contributed to the Chinese and Russian vetoes of draft UNSCR S/2011/612 of 4 Oct 2011. S/2011/612 was defeated 9-2-4 (China and Russia vetoing, with Brazil, India, Lebanon and South Africa abstaining); in other words, if China and Russia had abstained, there was the bare minimum of 9 votes required for passage.
So with the death toll in anti-Assad protests reportedly reaching 3,000, what is the position of R2P after a (very benign) draft UNSCR on Syria was vetoed by the UNSC? (And let's be very clear - the vetoed text is a million miles from authorising the use of force - and had been deliberately watered down to overcome Chinese and Russian objections, which suggests that sponsors were expecting that the concessions would be sufficient get this through, and as a result it isn't likely to do much for P5 relations on the UNSC.)
I presumed that R2P had to add something to the existing framework, by explicitly recognising a right to intervene when circumstances on the ground demanded it. Simply, without it, R2P is meaningless, and there's no point in having it at all - so why put it in Para 139 of the 2005 World Summit text? It is this element that is so confusing (and potentially disturbing) about Gareth Evans' speech - it is when the UNSC is deadlocked, and crimes are occurring on the ground that the R2P buttress to humanitarian intervention doctrine comes into its' own, and intervention to protect the civilian population should be initiated.
(Closer to the action than Gioia was to Libya. Beer is better, too.)
So, President Obama, Prime Minister Cameron and President Sarkozy: prove that Gareth Evans is too cautious and give R2P some legs with an NFZ over Syria - it's legal, and it woulg give the Arab Spring the opportunity to bloom in Damascus, Aleppo and Homs as well.