Lucy McKernan If I were Attorney-General, after pinching myself and then proudly celebrating the fact that I was the first female Attorney-General of Australia, I would turn my gaze to the international sphere and ask: how might Australia best contribute to international and regional justice, peace and security? One project that has the potential to make a significant contribution to international justice is advocating for the acceptance and implementation of the responsibility to protect (‘R2P’). R2P is an emerging international norm that aims to prevent genocide and other mass atrocity crimes. In essence the R2P principle says that states have a primary responsibility to protect individuals within their borders from genocide, war crimes, ethnic cleansing and crimes against humanity, and, where a state fails in that responsibility, the international community has a secondary responsibility to protect.
The principle was first propounded by the International Commission on Intervention and State Sovereignty (‘ICISS’), chaired by my predecessor Gareth Evans, in its 2001 report, The Responsibility to Protect. The ICISS report responded to the failure on the part of the international community to prevent or react to mass atrocity crimes, such as the genocides in Rwanda and Srebrenica and other mass harms that occurred in spite of the Genocide Convention of 1948. The report tackled the perceived conflict between humanitarian intervention and sovereignty by reconceptualising sovereignty, so that the responsibility to protect individuals is prioritised over unconditional territorial control. The report also reframed the debate by shifting from a focus on the rights of states (to intervene) to the responsibility of states (to protect), and from the perspective of states providing humanitarian assistance, to the perspective of individuals demanding protection.
The R2P framework proposed by the ICISS report has 3 core elements: the responsibility to prevent atrocity crimes; the responsibility to react to events threatening to trigger atrocity crimes with appropriate responses, including the use of force as a last resort; and the responsibility to rebuild after an intervention through assistance with recovery, reconstruction and reconciliation of communities. R2P has been endorsed by the UN Secretary General, the European Union, the African Union, the UN High-Level Panel on Threats, Challenges and Change, the UN General Assembly and the Security Council.
In recognition of the controversial nature of military interventions and the need to clarify the issue of authority, the ICISS report proposed six criteria for application of R2P. First, the intervention must be approved by the ‘right authority’, being the UN Security Council or the General Assembly or the geographically appropriate regional organisation. Second, there must be ‘just cause’ for the intervention, being large scale loss of life which is the product of deliberate state action, state neglect or inaction, or a failed state situation. Third, the primary purpose must be to avert human suffering. Fourth, military intervention must be the last resort after all non-military options have been explored. Fifth, the intervention must use ‘proportional means’, being the minimum necessary to avert the harm. Sixth, the intervention must have reasonable prospects of averting the mass harm. Importantly, the report suggested that in Security Council votes where there would otherwise be majority support for intervention, a permanent member of the Council should abstain from using its veto to block the intervention, unless its crucial national interests are at stake. Neither these criteria, nor the veto proposal, have been endorsed by the General Assembly or Security Council. Agreed criteria for military intervention will be critical to the successful implementation of R2P.
The emergence of R2P represents an important and positive step forward for three reasons. First, it debunks the myth that sovereignty entails control without responsibility. This is an important conceptual break with the past, but as we have seen in the debates surrounding action to halt the violence in Darfur, we still have a very long way to go to convince many states. Second, it attempts to address the problem of authority by codifying a previously ad hoc and ineffectual system of humanitarian intervention which allowed genocide to occur in Rwanda and produced the unfortunate result in Kosovo of an ‘illegal but legitimate’ intervention. Third and most importantly, R2P creates a culture of prevention, responsibility and protection, and hopefully will precipitate the construction of an intellectual and practical toolbox of preventive actions and responses to mass harms.
Whilst there has been much support for R2P from Western states, NGOs and international lawyers, there remain some key sceptics. Many states in the Global South are suspicious of the motives of potential interveners and wary of neo-imperialist or neo-colonialist use of the principle. In the Security Council, Russia and China have opposed R2P on the basis that it invites unjustified violations of state sovereignty. Russia was fiercely resistant to the General Assembly statement endorsing R2P and continues to be less than enthusiastic about it in Security Council debates. Similarly, China has blocked several attempts by the Security Council to refer to or use R2P. A UN report on the prospects and challenges for promoting R2P in South East Asia, found very cautious interest in the principle and real concerns about intervention attributable to the colonial experiences and continuing Western ‘meddling’ in the domestic affairs of South East Asian states. The report also highlights the importance of ASEAN as the best placed body to address humanitarian crises in the region.
There is still much work to be done in ensuring international support for R2P. It is probably not yet a ‘norm’ of customary international law. The real test will be in the implementation and the lack of substantive action by the international community to halt violence against civilians in Darfur, despite much reference to R2P in Security Council debates and resolutions, is not a good omen.
There remain considerable challenges to achieving implementation. Doubters must be persuaded of the value of R2P, including by alleviating concerns about Western imperialism. Proponents of R2P should encourage discussion from all perspectives and listen to concerns and cultural or regional nuances. The integrity of the R2P concept must be guarded; for example, by emphasising that R2P is about much more than just military intervention and that preventive action involves building state capacity, reinforcing the rule of law and utilizing diplomatic and political avenues. The limits of non-consensual military action must be specifically identified. There is also a need to build capacity within international institutions, governments and regional organizations to undertake preventive action and to react to mass harms with non-military and military responses. Two toolboxes are needed: one containing preventive measures such as early warning systems and peace-building mechanisms; and one containing reaction tools including political, diplomatic, legal, economic and military measures. Importantly, proponents must enlist strategies to deal with the problem of political will, through reinforcing the R2P norm and a culture of responsibility, prevention and protection.
Australia can play an influential role in working to reinforce the R2P norm, and ensuring its effective implementation. As part of the Rudd Government’s commitment to ‘effective international citizenship’, human rights, and regional peace and stability, Australia could use its role in the South East Asian region to promote R2P and persuade detractors of its value.
Australia could also work towards the development of an R2P treaty and be involved in the further work necessary to develop the concept and the ‘toolboxes’ referred to above.
If I were Attorney-General, I would commit Australia to these tasks and provide appropriate resources to enable their achievement, because I believe that R2P has significant potential to prevent mass atrocities like those that occurred in the 20th century and to give substance to the vow ‘never again’.
Lucy McKernan is a Senior Associate with Allens Arthur Robinson and a founding member of the Human Rights Law Resource Centre Advisory Committee.