‘Nationalist thug terrorises, massacres civilians in drive to crush separatists’. It’s a story which, when played out in southeast Europe a decade ago, brought fearful retribution on the head of the perpetrator, Yugoslavia’s president, Slobodan Milosevic. A Nato bombing campaign rained down ordnance on his country for 78 days, and he later ended up in The Hague accused of crimes against humanity.

Ten years on, it’s been replayed in south Asia, with the bloody end game of Sri Lanka’s war against the Liberation Tigers of Tamil Eelam. The Tigers waged an indiscriminate campaign of violence for a quarter of a century. Their counterparts in Serbia were the Kosovo Liberation Army (KLA), seen by many in the West as a plucky little group of rebels, but known locally for their trademark attacks on civilian representatives of the federal government such as police and postal workers. A UN report found they had elbowed their rivals, the Democratic League of Kosovo (LDK), out of power in town halls across the province by the simple expedient of instructing officials to join them instead, and shooting those who refused.

The task of brokering an acceptable deal to recognise the aspirations to self-determination of the Albanian Kosovars was taken up by a high-level Contact Group, comprising the foreign ministers of the US, UK, Russia, Italy, France and Germany. They finally put a deal on the table in Paris that would have led to Kosovo’s independence – the red line for Milosevic, and one they knew he would not cross. John Gilbert, a defence minister in the British government, later told a committee of MPs, inquiring into the sequence of events that led to war, that the talks “set the bar deliberately too high” to get an agreement.

The Norwegian government tried to facilitate a peace deal in Sri Lanka, their efforts being rewarded by a ceasefire agreement in 2002. But Mahinda Rajapaksa’s narrow presidential election victory three years later sent the process into reverse. Like Milosevic, he was quick to forge alliances with right-wing nationalist parties, opposed to any concessions. The agreement they made with Rajapaksa included revisions of the ceasefire agreement to give the military broader powers against the LTTE, as well as ruling out any devolution of power to the Tamil people: the red line they could never cross.

The logical conclusion of that political gambit has just been played out, with Rajapaksa and his supporters in Colombo celebrating a military victory. The UN estimated the number of civilians killed, between January 20 and May 7, at over 7,000, with 16,700 wounded. We can only guess how many more perished in the final, desperate ten days. That statistic, along with the appalling and dangerous conditions in ‘Internal Displacement Camps’ run by the military for those who fled the fighting, amounts to a humanitarian disaster. I use the phrase in a deliberate echo of the debate over Kosovo. It was to forestall just such an outcome, we were told, that Nato’s intervention, Operation Allied Force, took to the skies of Europe.

The significant difference, of course, between the two cases, is that in Sri Lanka there was no military intervention from outside. The British, fierce foes of Belgrade back in the 1990s, this time confined themselves to volleys of words, leading calls for a ceasefire that went unheeded. “There will be consequences”, Prime Minister Gordon Brown intoned.

It shows how the principle of “humanitarian intervention” has fallen into disrepute: debased, indeed, to the extent that the phrase was used by the Sri Lankans themselves to describe their ‘operations’ in the north-east of the country, on the basis that they were ‘freeing’ civilians effectively held captive by the Tigers.

Questions, then: why have things changed, and what can be done?

Why things have changed

There is a general obligation on all states to take positive action to uphold human rights, set out in Chapter IX of the UN Charter on economic and social cooperation. Article 55 commits the world body to uphold the “universal respect for, and observance of, human rights and fundamental freedoms for all”, and, according to Article 56, “all Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55”.

Brown’s predecessor, Tony Blair, set out the case for that commitment to apply, also, to measures provided for under Chapter VII, the use of force, which the Security Council can approve in circumstances when – according to Article 42 – “international peace and security” are at stake. In a speech in Chicago, in April 1999, as Britain’s Royal Air Force was helping its American buddies to bomb and strafe the Serbs, Blair adumbrated what he called “the doctrine of the international community”. When “oppression produces massive flows of refugees which unsettle neighbouring countries”, he said, the UN’s basic principle of “non-interference” should be set aside. Intervention, up to and including military force, should be used in such circumstances, with or without the consent of the governing authorities in the country or countries concerned.

Not long afterwards, the International Commission on Intervention and State Sovereignty, an initiative of the Canadian government, began considering exactly these issues. Its co-chairperson was Gareth Evans, the former Australian foreign minister. In his new book, he recalls a one-on-one “arm-wrestling” session with the US representative, Congressman Lee Hamilton, over one crucial issue: should such interventions require explicit UN approval, in order to be seen as legitimate? Nato’s attack on Yugoslavia was never put to a vote in the Security Council, where it would have run into the certainty of a veto from Russia and most likely the Chinese too.

In the event, the ICISS report, The Responsibility to Protect, hedged its bets. The Evans-Hamilton formula was, in effect, that the Security Council was the best source of authority for such interventions, but the door was left open a crack. “The Security Council should take into account in all its deliberations”, it says, “that, if it fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation – and that the stature and credibility of the United Nations may suffer thereby”. It could have been drafted to avoid ruling Nato’s attack on Yugoslavia ‘offside’: and indeed, Evans’ book confirms, it was.

The R2P report set out four “precautionary principles” to govern such interventions. They must be primarily motivated by a desire to protect threatened populations, it says, even though other, more selfish aims might also be present. Military intervention must be a last resort, it must be proportionate and there must be an assessment that it will likely do more good than harm.

The US and its allies professed their humanitarian concern in earnest, building to apocalyptic terms. US Defense Secretary William Cohen speculated, on air, that as many as 100,000 Kosovan men of military age “may have been killed”. This estimate turned out to be at least one, perhaps two orders of magnitude too high, even for the death toll of the entire war. In any case, the massive refugee flows to which Blair referred, in his Chicago speech, were triggered by Nato’s bombing, and then by its cessation, with a net exodus of some 200,000 non-Albanians from their homes in Kosovo.

The US had secretly armed and trained the KLA to take over from the LDK as the recognized representatives of the Kosovo Albanians, having adopted a strategy of “prevent[ing] the emergence of European-only security arrangements that would undermine Nato” in the post-Cold War era. The words are from a Pentagon memo, Defense Planning Guidance, compiled in 1992 under a team led by Paul Wolfowitz. Military problems would require the intervention of a military alliance, led from Washington, whereas purely political ones could be solved by the European Union, to the exclusion of the United States. For American influence to continue in Europe, conflicts had to be militarized: the US needed this to become a shooting war, and their diplomatic efforts only make sense if this is borne in mind.

None of the precautionary principles was met in this case, therefore, especially since the example of Kosovo, along with the roughly contemporaneous developments in East Timor, offered a precedent for Russia’s later occupation of Georgia in support of the autonomous breakaway regions of South Ossetia and Abkhazia. This, along with the net outflow of refugees, meant that intervention over Kosovo did more harm than good, even if we confine the assessment to its own region. By associating the responsibility to protect civilians and uphold human rights, with regime change and the re-drawing of international borders, moreover, it polarized opinion in the international community, creating a gap through which later proponents, such as the Rajapaksa government, could pass.

The UK’s calls for a ceasefire in Sri Lanka led to angry demonstrations outside the British embassy in Colombo, with demonstrators making explicit, to watching journalists, the tacit message of their government’s geo-political positioning. We don’t need support from hypocritical liberal western countries, this line went, now China is on board as our patron in the international community. Sri Lanka is, indeed, one of those countries where Beijing has extended its “peaceful rise” policies, along with Sudan, Zimbabwe and sundry others. No strings are attached to Chinese military or development aid, unlike, say, from EU countries or the IMF.

China’s assiduity in cultivating such relationships is the counterpart and consequence of the ‘hub and spoke’ doctrine of US foreign policy, where allied and friendly countries are viewed – and encouraged to view themselves – as having a ‘special relationship’ with America. Including oneself in this ambit brings rewards, whereas those outside face punishments. Members of the club are expected to pull their weight. “For freedom to thrive, accountability must be expected and required”, says the US National Security Strategy of 2002.

Few if any allies have been quite so candid as the Australian government has been recently in constructing China as a military foe. This year’s Defence White Paper says: “The pace, scope and structure of China’s military modernisation have the potential to give its neighbours cause for concern if not carefully explained, and if China does not reach out to others to build confidence regarding its military plans.

“As other powers rise, and the primacy of the US is increasingly tested, power relations will inevitably change. When this happens there will be the possibility of miscalculation … A potential contraction of US strategic presence in the Asia-Pacific region, with a requirement for allies and friends to do more in their own regions, would adversely affect Australian interests, regional stability and global security”.

The hidden connections begin to emerge here. The Rajapaksas of this world can cosy up to China and thumb their nose at the R2P doctrine. It has, in any case, been stripped of the ‘Lee Hamilton clause’ since the version adopted at the UN General Assembly, meeting at Head of State and Government level in 2005, stipulates that the Security Council must give its approval for any humanitarian military intervention. Any move to intervene to protect Tamil civilians would have fallen foul of a veto from Beijing, which resisted the subject even being discussed at Security Council level.

What’s in it for China is to build up a ‘hinterland’ of influence in the international community as a bulwark against destabilisation and possible attack; fears stoked by such episodes as Kosovo – when, let us recall, a Nato bombing “error” flattened the Chinese embassy in Belgrade – along with the rapid military build-up in Georgia as Nato seeks to spread its influence to the east, and Australia, as the US raises the stakes in what is, in strategic terms, its own backyard. The Asia-Pacific was one of three key regions identified in Defense Planning Guidance where the US must forestall the emergence of alternative ‘hegemons’, or centres of power.

What can be done?

It was, above all, the invasion of Iraq that brought about what one academic observer, Thomas Weiss, calls “the sunset of humanitarian intervention”. By the time of the UN General Assembly vote, “blowback” from that episode, he says, had “preclude[d] serious discussion [of guidelines for humanitarian intervention] for the foreseeable future”. That, too, was presented to publics as a humanitarian exercise: the “moral answer”, Blair said, to the moral case against war.

The Sri Lanka case underscores the need for a renewed discussion, and the Kosovo and Iraq cases should mandate a more specific and more restrictive definition of its methods and purpose. Taking the responsibility to work for the protection and extension of human rights out of Chapter IX of the UN Charter and into Chapter VII automatically creates a problem. If the use of military force is to be contemplated, then the owners of that force inevitably import their own interests into any decision as to whether it can or should be used.

The UN needs its own personnel to send in to places like that rapidly shrinking sliver of jungle and sand where Tamil families were reduced to cowering from artillery fire in makeshift trenches. James Elder, the Unicef spokesman in Sri Lanka, said: “We are seeing a complete disregard for civilian life. It is hard to think of a worse place on earth to be right now than on that stretch of beach”.

Anyone entering such a situation would need the protection of a ceasefire, along with personal protection weapons, but they would also need to be decisively differentiated from the armies of member states, which are either prepared to deploy in pursuit of self-interest, or unwilling to deploy because they perceive none – and which, the record shows, often do more harm than good.

This is not entirely wishful thinking – colleagues here at the Centre for Peace and Conflict Studies are developing a proposal for a UN Emergency Peace Service (UNEPS), originally put forward by a civil society group, Global Action to Prevent War, which would work along these lines. Annie Herro, the researcher who is gauging regional responses to the proposal, with funding from the international aid charity, Caritas, describes it in the following terms:

“UNEPS would comprise 12 to 15,000 carefully selected and expertly trained personnel. This permanent UN service would include not just military staff and civilian police but also experts in conflict resolution, healthcare and the administration of justice. It would work within a single UN command structure and be based at UN designated sites. UNEPS would possess a fuller range of skills than those of existing UN, regional or national forces. And for the first time in history, a UN agency could be deployed within 48 hours of UN authorisation”.

What are its chances of being adopted? The regional responses have been largely positive, often with the rider (from those outside Australia) that it must not be allowed to be portrayed as yet another pretext for the West to interfere in the internal affairs of sovereign nations.

To read Gareth Evans’ book is to enter a world narrated in the first person plural. “We” are the clever, enterprising and well-meaning folk of the kind who are, indeed, well-represented in the upper reaches of politics, diplomacy and the international human rights and humanitarian worlds, with Evans himself a prime example. The end of the Cold War enhanced the prospects of, as he put it in an earlier volume, “cooperating for peace”. Developments since then have sown further divisions, however, and there needs, above all perhaps, to be some sense of reconciliation, before a UNEPS or such initiatives could be seriously contemplated.

Above all, perhaps, the level of military spending needs to come down, starting with Australia. The country’s own Defence Intelligence Organisation argued strongly that China should not be seen as a threat. Instead, they said, its modest increases in arms spending came in response to America’s own plans, notably for a massive expansion of its military base on the tiny island of Guam, the so-called ‘tip of the spear’ pointing at Beijing. However, the DIO lost out to arms lobbies, backed, no doubt, from Washington, in setting a military budget grotesquely in excess of Australia’s real needs. It was a decision that contributed, through the series of connections I trace here, to the fate of thousands of civilian bystanders in Sri Lanka and elsewhere.