Interview Louise Arbour/ YOICHI FUNABASHI, Editor in Chief: Protection more effective than intervention to deal with conflicts

Editor's note: This is the fifth installment of an interview series that appeared in the vernacular Asahi Shimbun under the title "Brave, grave new world."

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Louise Arbour, who was the chief prosecutor for the International Criminal Tribunals for the former Yugoslavia and Rwanda, discusses ways to deal with armed strife and the difficulties reconciling the elements of peace and justice. Arbour is now president of a nonprofit organization on conflict prevention.

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Question: How has the nature of conflict evolved over the past 20 years? How will the trend likely play out in the coming years?

Answer: Well, I think what is very, very clear since the end of the Cold War is that we have seen a constant reduction in the number of international conflicts. There was a slight peak immediately after the end of the Cold War, but essentially we've seen a very, very constant decrease in the number of conflicts and in the number of fatalities.

I have numbers that say in a typical year the risk of war for any state now is one out of 250 in contrast to one out of 28 between 1918 and 1939.

There are fewer combatants killed because now we see internal conflicts. And there are basically two types: either guerrillas, not all that well-equipped with relatively primitive weapons, or very high tech, these 30,000-kilometer hits with precision artillery ....

On the other hand, we see a dramatic increase in the indirect consequences of conflict, particularly on civilian populations--massive displacement, both outside borders but, more significantly, internally displaced people.

We see an increase in what is now called asymmetrical warfare, not the engagement of two traditional armies.

What are the trends that we see today?

Migration and, of course, what everybody's very concerned with: the post-modern phase of conflict. This is likely to be triggered by two big fears: climate change, which could trigger droughts and therefore massive displacement and conflict over resources, and the uncertainty about the proliferation of nuclear weapons.

This is now, I think, resurfacing as a concern, although we are currently probably better equipped than a few years ago to address it politically. But I think that's generally what we see as the evolving face of conflict.

The Refugee Conventions are a very good instrument to deal with populations who leave their country and with a system of protection outside their country, but we have nothing to deal with internally displaced people. So we are very poorly equipped to deal with this modern phase of conflict.

The best example of the incapacity to deal with internal conflict has been the nonreaction to the last chapters of the war in Sri Lanka last year.

From January to May of last year, the government of Sri Lanka did what we had always said was not possible. We always said there's no military solution to the LTTE (Liberation Tigers of Tamil Eelam), it should be a political solution. Well, there was a military solution. (But) at what price is what has never been really, fully exposed.

We think that there was an extremely high price on civilian lives and no international engagement of any kind. The Security Council was completely absent, the Human Rights Council completely absent. And if that's the profile, in my view, it's a very bad example.

If the Sri Lanka model is now going to become the model for solving internal conflict, it's very troublesome because the model is "keep the world out, keep the U.N. out, keep humanitarian actors out, keep your borders very tight, and do what it takes at any cost." That's not very good.

Q: You have pointed out two kinds of conflicts: intra-conflict and post-modern. How do you think we should approach each of those conflicts?

A: We have always taken the position that conflict in particular is very contextual, that you cannot have a smart response if you're not right on the ground, really understanding the politics of it and seeing the opportunities. There is no overall blueprint or template that you can apply everywhere.

On the other hand, I think we see some relatively common trends, and the most common one, as far as I'm concerned, is weak national institutions.

In fact, ... if you look in the last few days at the viciousness of the debate in America over health care, the sentiments were pretty strong, the rhetoric was very strong between these two very partisan camps.

You could not have imagined anything ideologically, politically more conflictual, and yet you go to the House, you have a vote. But it's not over because Republicans now have said they will challenge that in courts.

But they use their institutions rather than their guns, and it is extraordinary to see.

To me, it's the most striking example of a conflict that ... had that level of intensity, especially in a country that has freedom of expression so you can say terrible things about everybody. To see how it can be resolved by the strength of respect for institutions, I think, shows how elsewhere it's the absence of institutions that give no tools to manage the differences.

There are lots of differences also in mature democracies. One is people accept a loss because they believe there will be another term and they will have their chance once again, which is not always the case in very authoritarian regimes. If I had to pick one single characteristic of conflict-prone (states) and the question of how it's managed, I think it's the weakness of the state centrally and the absence of rule of law capacity.

Q: So in essence, when you talk about conflict prevention, you really are required to foster viable and robust national institutions based on democracy. Is that the case?

A: Yes. Frankly I'm very hesitant, even though I'm a big fan of democracy, to put it strictly in those terms because I think it's been very mismanaged in recent years. For instance, certainly under the Bush administration in the United States the promotion of democracy was understood to be a campaign for regime change and it actually gave the promotion of democracy a very bad name.

Another thing Western donor countries have become addicted to is elections. If you look at the Sudan, for instance, they're asking people, who for the most part for the first time in their lives are going to be voting, with very complicated lists of electing at local levels. We've exported extremely complex electoral models on very short time frames.

As a result of that, we have created, particularly in regimes that have a presidential system, the legitimacy of strongmen. And the legislative branch, even though elected, is very servile and the judicial branch is extremely weak. There is no free press and no tradition of citizen participation, civil society. That's not democracy as we understand it.

So I think we've gone down a track that in a sense has entrenched the power of strongmen, giving them the legitimacy of an electoral process, but in the end that's not the kind of democracy that I think is conducive to peace.

Q: We were very much impressed with the way the first election was held in South Africa after Nelson Mandela came back. So in Africa, what could be a good reference that we can pin our hopes on?

A: There are features of the post-apartheid South Africa that are often put forward as models. South Africa is a very unique case and a lot of its successes in my view are not easily exportable. The Truth and Reconciliation Commission, for instance, ... has been exported very poorly in lots of circumstances.

The first thing you need is a Mandela. Not every country has produced someone emerging from conflict with this kind of vision. And then you need the combination of a Mandela and de Klerk at the right time to launch that process.

In Liberia, for instance, recently there was a Truth and Reconciliation Commission, and it recommended that some people be prosecuted for war crimes. But because it took so long after the conflict, instead of doing it right at the beginning, now one of them is a judge and the other one is a Cabinet minister.

The longer you wait, in a sense, the more difficult you make it to go back and launch that process. And then you entrench not only a system of impunity but a system where impunity is rewarded.

Q: In Cambodia, a special tribunal was established 30 years after the collapse of the Khmer Rouge regime.

A: I think this Cambodia tribunal is not going to be a particularly happy model. In my view, the U.N. made a bad deal in accepting it. There is so much pressure, you want to do it so badly, they're very old, and if you don't start they're all going to die.

You make a bad deal and end up with something that, I'm not going to say is an embarrassment, but what does it say to the victims? What does it say to the country about its own history to have three, four old men put on trial in a process that has very little credibility? So not all justice enterprises are very good.

Peace and justice

Q: How do you reconcile the critically important elements of peace and justice with conflict prevention?

A: This is currently the most difficult issue where we don't have a lot of intellectual clarity on. Everybody's in favor of peace. Everybody's in favor of justice. But the general sense is you can't have them both at the same time.

You have to do sequencing, and when you do that, of course, peace always comes first and usually justice. But you never get there because peace is so fragile.

I believe that we could be ambitious enough to pursue both; we just have to have the right set of intellectual clarity and the right institutions.

After the Nuremberg and Tokyo trials, as you know, there was no initiative internationally for almost 50 years until very surprisingly the Security Council created the tribunals for the former Yugoslavia and Rwanda.

But the problem with that is the Security Council is a political institution. You cannot have an institution that is more political, and so to have that as the cradle or the starting point of justice is very bad. It intermingles politics and justice from day one.

But surprisingly, after having launched these two tribunals, the Security Council stayed out of it. I was the prosecutor for Yugoslavia and Rwanda for three years. In the three years that I was the prosecutor in an institution created by the Security Council, I never appeared, not once ever, in the Security Council.

Q: How do you see "the responsibility to protect" principle come into play in this context?

A: As you remember, Kofi Annan was very concerned after the NATO airstrikes in Kosovo, that essentially NATO had gone there without a Security Council mandate. Milosevic at that point was deporting hundreds of thousands of his own citizens and killing them, and so there really was a sense that it was the right thing to do.

But it was also, at the same time, a bit of a question as to, "Well, are we going to now invite NATO to be the sheriff of the world and run around as it sees fit without Security Council approval?"

So this (International) Commission (on Intervention and State Sovereignty) was launched.

The timing, of course, of their report was very ironic because their report was published about a month after Sept. 11, in which case that issue was no longer on anybody's landscape.

Now that it has come back and I think regained a lot of momentum, I think it's important first to realize that it is not very revolutionary. It basically says that state sovereignty is essentially a bundle of responsibilities, not a shield against external scrutiny.

Frankly, that is hardly revolutionary. Every member state of the United Nations, particularly all those who then have signed hundreds of international treaties and conventions, by doing so have surrendered a large part of their sovereignty.

To be a member of the club, you've accepted a lot of responsibilities and taken a lot of solemn engagements outside your own borders. And is there anybody on Earth who would say a government has no responsibility vis-a-vis its people?

You don't even have to be a democratic government. Even a despot would probably accept that he is the father of his people and is there to look after their well-being. And so the idea that a sovereign state is responsible for the well-being of its people, I think, is not exactly revolutionary.

The part that is a little more daring is the question of what happens if a state is unwilling or unable to discharge that responsibility to protect its people, particularly against, not natural disasters, but against genocide, war crimes, crimes against humanity.

And to me, the most interesting contribution of that doctrine is that until then the previous doctrine, the one that Bernard Kouchner, now the foreign minister of France, has articulated and championed for many years, was the doctrine of the right to intervene, the right of humanitarian intervention.

The shift between the right to intervene and the responsibility to protect is very significant intellectually because the right to intervene focuses on the country that has the right.

If you have a right, by definition you have the choice to exercise it or not to exercise it. It's your right, but nobody can force you. So you choose, you intervene in Kosovo, you don't intervene in Rwanda. It's your discretion, it's your right.

To move from that to now, you have a responsibility to protect. Now it's not your choice, now there's a norm. And if a state is failing in protecting its citizens, now you have a duty.

In fact, that's already there under the Genocide Convention, which most countries have signed. There's a responsibility to prevent genocide, and Bosnia has sued Serbia in the International Court of Justice for failing to prevent the genocide in Bosnia. And the court said Serbia is legally responsible for failure to prevent the genocide.

Why? First of all, because it's right next door. If genocide is going on in Bosnia, does Bolivia have a duty to come and run and intervene? Well, I don't think so. So what are the criteria? The court said proximity, knowledge, capacity, they've developed a framework.

To me, this is extremely interesting and useful, and I would have thought that it puts a tremendous responsibility on the members of the Security Council because they have the capacity. First, they have the knowledge, they have intelligence, and by the time you're talking about genocide, it's usually in the public domain.

Now, do they have proximity? Well, China doesn't have proximity to Rwanda, but you can think of an intellectual proximity in the sense of capacity to actually make a difference.

So I think this is how the doctrine should evolve. The focus should not be on the countries that would be the subject of the intervention, the focus should be on those who have now embraced their own responsibility to do something and we should hold them to that.

Complex concept of peacekeeping

Q: I think some countries like China have argued against the responsibility of the protection doctrine because they regard it as an infringement of sovereignty. Do you feel that emerging countries will also gradually get on board and share that same concept and principle?

A: Yes. I think if you take something like a universal or clearly international public good, like the world's climate, there's not a lot of room for imperialism. If you're dealing with a public good that to some extent is equally shared, we all breathe the same amount of air every day, we're going to have to work towards formulas that are acceptable. There's just no imposition of one particular vision, and the consensus is not going to satisfy the ambitions of everybody.

I think we are likely to have possibly more profound divisions on a lot of issues, but I take a lot of comfort if we have fora in institutions in which these debates can take place in a respectful manner and look for real solutions.

I think multilateralism has a future, but if we don't manage these very, very different views and hopes for our common future, this in itself will be a source of tremendous conflict.

Q: In what instances can there be good working relationships between developed countries and less developed countries in pushing for a conflict prevention exercise, which perhaps could be a model in the coming years?

A: Well frankly, the only thing that I see that is truly novel is the emergence of civil society actors like us, like (the International) Crisis Group. I take that as an example because if you look at the trends of the turn of the century to determine what have been very powerful ideas or movements, I would say feminism. The last half of the last century I think was dominated by the rise of feminism.

Information technology has probably also been a truly revolutionary factor, and I would say the rise of civil society actors as real democratic actors has had a tremendous influence.

Certainly, both nationally and internationally, in sectors like health, education, sports, the arts, the private sector, the NGO world has overtaken the capacity and the engagement of governments in many respects.

They moved closer to the conflict area. In Darfur, for every one U.N. person you have 10 NGOs on the ground building latrines and distributing food.

You see this rise of civil society actors, and I think Crisis Group in that context is very unique because we are really the first ones who have penetrated what is normally the preserve of states, which is conflict management, international peace and security.

These civil society actors, it may sound very pretentious, I think we believe that we work in a kind of international public interest. We're promoters of international public good, peace or climate or environment for others. We don't represent any national interest.

Q: Do politicians have any incentive to work toward prevention because it offers sparse political reward?

A: Again, I have to say I'm very much a democrat, very much in favor of democracy. But it has a few shortcomings and that's one of them, which is there are very few incentives for politicians to do anything that doesn't bring immediate returns.

The only time frame within which they operate is their electoral time frame.

We see it in American politics. The eyes are already on re-election and so the opportunity to actually do something that is not necessarily very popular or will not bring great electoral rewards is very small.

The analogy I think with medicine is very apt. People run to the doctor when they're sick or when they're really scared.

It's measuring the threat and the risk, how catastrophic will it be if we don't do something now. But it's even worse (over) how can you demonstrate that you really prevented something like that?

So I think it's the constant effort at penetrating public opinion and, most importantly, decision makers. Even though they're very driven by their electoral agenda, I never underestimate the profound desire of people, including politicians, to do the right thing.

But very often what is missing is not courage; it's clarity.

Q: You're Canadian and so let me ask this question. Canada has always made a great contribution to peacekeeping and peacebuilding, and Canada is very well respected for that commitment to international peace.

A: Yes. I think you pointed out this idea of Canada as a country of peacekeepers is both a kind of international stereotype, but very much a national one as well. Lester B. Pearson was the only Nobel Peace Prize winner who was a Canadian, very much through his involvement in the launch of this idea of peacekeeping, and it's very much I think the way Canadians think of themselves.

Unfortunately, they're stuck in a model that is now about 20 years old. Canadians will have to reinvent their international persona because this is no longer the reality.

The number of Canadians serving with the Blue Helmets has decreased. In 1991, Canada provided more than 10 percent of all Blue Helmets. In 2007, it has dropped to less than 0.1 percent.

Peacekeeping missions now are entirely staffed by developing countries. What are the top 10? There's probably Bangladesh, Pakistan, Nepal, Nigeria.

Q: And China, too?

A: Yes, China now increasingly, which is a good thing because many have argued that particularly the permanent five members of the Security Council should contribute troops and money to peacekeeping operations in proportion to the weight of their political engagement on these issues.

The whole vision of peacekeeping has become so much more complex. This is no longer just maintaining a cease-fire between two lines of combatants with a purely military strategy.

In most cases, they're deployed before there's any peace to keep. So they're more involved in peace negotiating, building, maintaining.

In MONUC, the biggest U.N. peacekeeping mission, which will be a 10-year-old mission shortly, an enormous amount of money has been deployed.

The Blue Helmets were fighting alongside the government troops on the eastern border with Rwanda. They are now actually involved in military operations.

So the entire landscape has changed.

What's going on in Afghanistan is not a U.N. peacekeeping mission. I think Canada and Japan might ask the same questions: Who are we internationally? What is the role of countries that have a lot to contribute financially, politically, have a lot of weight and influence, regionally, internationally?

But certainly, currently in the case of Canada, and I'll leave it to you to decide in the case of Japan, I'm not sure that they've actually articulated what is their international presence and contribution.

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Louise Arbour, a well-known human rights lawyer, has held many high-profile posts, including a justice on the Supreme Court of Ontario. In October 1996, she was appointed by the United Nations as chief prosecutor for the International Criminal Tribunals for the former Yugoslavia and for Rwanda. She charged Yugoslav President Slobodan Milosevic with crimes against humanity in May 1999. In September 1999, she was appointed a justice on the Supreme Court of Canada. From 2004 to 2008, she served as United Nations High Commissioner for Human Rights. In July 2009, she became president and CEO of the International Crisis Group, an independent and nonprofit organization on conflict prevention and resolution. Arbour was born in 1947 in Montreal and has three children.