IF PREVENTION FAILS: WHEN IS IT RIGHT TO FIGHT?

The ICISS Commission was established, and its report The Responsibility to Protect published, not just to analyse the problem of genocide and mass killing and ethnic cleansing, and the international community’s pathetically inadequate and erratic response to it throughout the 1990s – from Somalia to Rwanda to Srebrenica to Kosovo - but to come up with some very specific policy guidance on the crucial issues, above all what do you do when prevention fails: when is it right to fight?

We did go out of our way to emphasise that military action should always be a last resort, and certainly not be the only kind of strategy we ever focused on. In developing the concept of ‘the responsibility to protect’ as the best way of mobilising a new international consensus to ensure that the slogan ‘No More Rwandas’ would become an unshakeable reality, we said it had not just one but three dimensions:

qthe responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk;

qthe responsibility to react: to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention; and

qthe responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.

Of these three dimensions to the responsibility to protect, the Commission made very clear its view that prevention was the single most important: we spent a lot of time spelling out preventive strategies, both long term and short term – political and diplomatic strategies (including threats of naming and shaming in major forums); legal and constitutional strategies (of the kind that Rolf Ekeus and his predecessor Max van de Stoel have been so brilliant at developing as OSCE High Commissioners for National Minorities); economic development strategies (in particular aid conditionality); and military strategies (like security sector reform) falling short of the actual use of force.

We also made clear that, as a matter of principle, the exercise of the responsibility to both prevent and react should always involve less intrusive and coercive measures being considered before more coercive and intrusive ones are applied.

And when it comes to reaction, there are a lot of strategies available that fall short of full-scale military action. Economic sanctions, and in particular targeted personal sanctions – on travel, on access to bank accounts and the like – are familiar ones. Political sanctions – suspension of membership in the Commonwealth, or a regional or some other body in which membership is valued – are another option. Then there are arms embargoes; international criminal prosecution; the external jamming of internal communications, especially hate radio. And military action threatening, but falling short, of full-scale on-the-ground military assault: the establishment of no-fly zones, or the ‘preventive deployment’ (as in Macedonia) of a small number of troops as a warning of what might happen if red-lines are crossed.

But that said, the question of military action remains the central one in the debate. When prevention fails, and lesser coercive measures have failed or look certain to fail – when lives are being lost or look certain to be lost unless something more is done - when is it time to fight, bearing in mind all the horror that military action itself inevitably causes, whatever the justice of the cause; and also all the political and economic and human risks and costs that are involved for those who would be doing the intervening?

So we set about articulating some detailed guidelines for when military action is appropriate - six of them in fact. Let me spell them out quickly one by one – and (to make the discussion a bit more sharply practical, try and indicate how they could have applied in the case of Iraq had anyone wanted to make a serious case at the time for a ‘humanitarian intervention’ justification for intervention):

(1)Just Cause: is the harm threatened sufficiently clear and serious to justify going to war? We set the bar for military intervention deliberately high, and tight, excluding many kinds of unconscionable behaviour (eg imprisonment and torture of political opponents, overthrow of a democratically elected government) that would certainly other forms of coercive response, (eg targeted sanctions):
“There must be serious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind:
A.large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or
B. large scale ‘ethnic deansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.”
For the invasion of Iraq in 2003, which is now being vigorously argued to be a suitable case for ‘responsibility to protect’ intervention as the other rationales in terms of WMD and terrorism drop away, the threshold test cuts both ways. It would certainly have been satisfied a decade or more ago (when the West was indifferent or worse to the plight of the Kurds and southern Shiites), but much less obviously so in recent years. Would it be right now to intervene against Robert Mugabe in Zimbabwe because the threshold test was satisfied not now, but in the 1980s when the Matabeleland massacres occurred?

This is perhaps where the second test helps out.

(2)Right Intention: is the primary purpose of the proposed military action to halt or avert the threat in question, whatever other motives may be in play?
In the case of Iraq, it is probably fair to say that this test was satisfied in the case of the UK, where Tony Blair has long been passionate about the monstrous behaviour of Saddam towards Iraq’s own people. In the case of the US, the jury would I think have a harder time: taking into account the many different considerations that seem to have motivated the various key players at critical stages, is it really possible to argue that the primary purpose of this intervention was to halt or avert human suffering? In the case of the third Coalition member, Australia, perhaps there was some other motive than following the leader (and earning, as someone unkindly said, some more ‘Frequent Fighter Points’) – but I’ve been out of the country four years now and I’m afraid it has escaped me…

(3)Last Resort: has every non-military option for the prevention or peaceful resolution of the crisis been explored, with reasonable grounds for believing lesser measures will not succeed?
For Iraq, the answer to this depends essentially on which rationale for intervention you regard as most important. If it was the issue of possession of weapons of mass destruction, manifestly this criterion was not satisfied. But if you accept Saddam’s tyranny over his own people as sufficient justification, then perhaps it was: nothing short of regime change was going to stop his human rights abuses, and military action was probably necessary to achieve this.

(4)Proportional Means: is the scale, duration and intensity of the planned military action the minimum necessary to secure the defined human protection objective?
In the case of Iraq, the question has to be asked whether some 3,500 civilian deaths and 10,000 military deaths – assuming that those guesstimates are at least roughly accurate: the occupying authorities have never tried to make a count – were an appropriate trade for the end of Saddam Hussein’s capacity to persecute.

(5)Reasonable Prospects: is there a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction?
In the case of Iraq last year, the ‘reasonable prospects’ criterion is one of the hardest for defenders of the war to meet. We cannot finally answer it until we know how long Iraq’s post-war misery will last, whether it is going to become a democracy or a theocracy, whether the war has really concentrated the minds of other dictators, and just how many new recruits have been gained by al-Qaeda and its offshoots and affiliates and imitators around the world. But the outlook on most of these fronts is just as bad now, or even worse, than it was before the war.
The ‘balance of consequences’ test is, and should be, a very important constraint. Apart from anything else, it effectively rules out military action against any one of the five permanent members of the Security Council – e.g. against Russia over Chechnya, or against China over some imaginable course of events in Xinjiang - even if all other conditions for intervention were to be met. The same is true for other major powers– which is why Indonesia’s permission was required for the East Timor intervention, and why an Aceh intervention can be effectively ruled out. External intervention would simply trigger a much larger conflict, multiplying the human catastrophe involved.

All 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 doing so, is no reason for them not to be mounted in any case.

(6)Right Authority: is the military action lawful as a matter of international law?
This was the hardest issue for ICISS commission to wrestle with – and will be for the Anand Panel.
The argument is compelling that, when it comes to authorising any kind of military intervention, immediate self-defence apart, the United Nations, and in particular the Security Council, should be the first port of call. There is and can be no better answer to the question of who decides whether the criteria are satisfied. But the difficult question – starkly raised by Kosovo, and now by Iraq – is whether it should be the last port of call, in the event that the Security Council cannot or will not make a decision, or makes what seems to be the wrong decision.
What if the Security Council fails to discharge its own responsibility to protect in a conscience-shocking situation crying out for action, as I for one would argue was the case with Kosovo? A real question arises as to which of two evils is the worse: the damage to international order if the Security Council is bypassed, or in the damage to that order if human beings are slaughtered while the Security Council stands by.
The ICISS Commission’s response to this dilemma was to give a clear political message: if an individual state or ad hoc coalition steps in, fully observes and respects all the necessary threshold and precautionary criteria, intervenes successfully, and is seen to have done so by world public opinion, then this is likely to have enduringly serious consequences for the stature and credibility of the UN itself. That is pretty much what happened with the U.S. and NATO intervention in Kosovo, and the UN cannot afford to drop the ball too many times on that scale.

There is another side to this credibility argument which arose in the context of the invasion of Iraq in 2003, where world opinion was manifestly not in favour of the intervention: here the French and others were able to claim, with some effectiveness, that the credibility of the UN would have been put more at risk if the Security Council had gone along for the ride rather than resisting, as it did, the US pressure.

While the overall concept of the ‘responsibility to protect’ has gained considerable traction, as we have seen at this forum, it will be a long haul to gain general acceptance in principle of the relevance and utility of all six criteria, and an even longer haul to have them systematically applied in practice in every case. We know that, but think it is crucial to continue trying

Efforts have already been made within the Security Council and the General Assembly, led by the Canadian government and supported by the Secretary-General, to win at least informal acceptance of the criteria, and these efforts will continue. And I hope and expect they will get attention from the SG’s new High Level Panel. And I hope they will get support from this conference.

But it has been hard work so far – as I can personally testify: old national sovereignty habits and instincts die hard, both in the reactions of those who see themselves as potential candidates for intervention , and in the P5 members who don’t want to be hemmed in by guidelines – wanting to preserve for themselves the right to make the wrong decisions on an ad hoc, case by case basis.

The alternative to making a serious effort to enforce the international rules we have, and to supplement them with further principled guidelines and criteria, is to abandon the field to those who are more comfortable with the ad hoc exercise of power - who don’t really want to be limited by rules and principles, who feel constrained by international process, who see multilateral cooperation in very narrowly self-interested terms.

But a world that appeals to people like this is not, I think, one in which most people in the world really want to live.