Louise Arbour: For Justice and civilians, don't rule out regime change

By Louise Arbour, Globe and Mail, June 26, 2012

Louise Arbour

Louise Arbour is president and CEO of the International Crisis Group.
Civilian casualties in Syria shock our consciences, but there is also a frustrating acknowledgment that military intervention there might do more harm than good. The best option to protect Syrians is peace; ending the conflict should also end the massacres. But is the reverse true? Would an initiative aimed solely at protecting civilians resolve the conflict? Not necessarily.

Responsibility to protect – the emerging principle that states can intervene in other states to prevent mass atrocities, invoked in the case of Libya – suffers from the same uncomfortable relationship with peace that justice does. In both cases, the desired objective – protecting civilians or bringing criminals to justice – falls short of, or is often even at odds with, the objective of peace. Humanitarian or judicial objectives address only the manner in which the conflict unfolds, not its ultimate resolution.

In Libya, this dilemma was resolved by merging the three objectives. First, justice: The United Nations Security Council referred the matter to the International Criminal Court. Second, civilians: It authorized “all necessary measures” to protect them. Third, presumably hoping to achieve the first two objectives, the North Atlantic Treaty Organization undertook to bring an end to the conflict by effecting (or supporting, depending on your perspective) regime change.
But the manner in which this happened, with NATO widely thought to have overinterpreted its mandate, exposes weaknesses in the current approach. Under both international criminal justice and R2P, the interventionist role of the international community is predicated on the fact that the state in crisis, which has the primary responsibility for protecting its people and dispensing justice, is “unwilling or unable” to do so.
This language of inability or unwillingness is overly diplomatic. It obscures the reality that in many modern conflicts, including those in Libya and Syria, the state itself, or at least its officials, have embarked on a deliberate rampage against part of the population. This is a huge leap from “unwilling or unable.”
If a state launches a massive criminal enterprise against its people, why should “all necessary measures” fall short of disabling those responsible, including by forcibly removing them from power? This is what was done against Moammar Gadhafi in Libya – in my view entirely predictably. (Disclaimers to the contrary were neither credible nor honest.)
Interestingly, although the Security Council has approved “all necessary measures” to protect civilians, it has not done so to enforce its referral of cases to the ICC. Had that happened, and had states been prepared to act upon its authority and intervene militarily to arrest such indicted war criminals as Mr. Gadhafi and Sudanese President Omar al-Bashir, the link between the enforcement of justice and regime change would have been immediately apparent. Instead, by leaving arrest warrants idle for years, the international community not only condones impunity but eviscerates justice of much of its deterrent effect.
In the same way, should a military intervention to protect Syrian civilians refrain from toppling the regime? Assuming that military action came to be seen as a viable option – which I doubt, in light of its likely adverse consequences for Syria and the region – why should it not be designed to remove Bashar al-Assad’s regime? After all, how else could it credibly purport to protect Syria’s people from him?
The only reason not to tie regime change explicitly to the protection of civilians or justice is that doing so would make an already elusive Security Council consensus in support of intervention completely unattainable. The solution seems instead to be doing it by stealth or deceit, as in Libya. Or not at all, as with the unenforced ICC indictments.
Which is fine, as far as it goes. Political negotiations, not war, should drive regime change (or, in its more palatable form, “transition”). But disassociating the other two pressing concerns – civilian protection and justice – from regime change, at least officially, leaves them hostage to a political process that has no teeth.