Implementing the Responsibility to Protect in Kenya and Beyond
Implementing the Responsibility to Protect in Kenya and Beyond
Kenya and the Chaos in Haiti
Kenya and the Chaos in Haiti
Speech / Africa 17 minutes

Implementing the Responsibility to Protect in Kenya and Beyond

Address to the World Affairs Council of Oregon by Mark L. Schneider, Senior Vice President, International Crisis Group, “Implementing the Responsibility to Protect in Kenya and Beyond”, Portland State University, Portland, Oregon, 5 March 2010.

I would like to thank the World Affairs Council of Oregon and the Portland State University International Colloquium for inviting me to speak today at the Council’s Great Decisions Lecture Series/Class.

Both the World Affairs Council of Oregon and Portland State University have been doing impressive work lately.  I want to recognize Portland State University’s major achievements under new President Wim Wiewel including a 30 per cent hike in research, three athletic conference championships, the 13th consecutive year of enrollment and U.S. News and World singling out PSU in 2010 for its commitment to engaged learning through its community partnerships and programs.

The World Affairs Council of Oregon also has been growing and expanding its varied programs to enable Oregonians to better understand the challenges and changes occurring internationally.

I have a particular knowledge of Oregonians’ global perspective because as director of the Peace Corps 10 years ago I found that Oregon, on a per capita basis has been among the top four states in the nation in producing Volunteers for nearly 50 years. That is a proud legacy as we near the anniversary marking President Kennedy’s founding of the Peace Corps in 1961.

In recent years, I have directed the Washington office of the International Crisis Group. The genocide of Rwanda and mass atrocities of Srebrenica sparked the creation of the Crisis Group 15 years ago. We are a field-based, non-governmental and non-profit organization that identifies and analyzes the drivers of conflicts, designs policies to control them, and seeks to persuade, through direct and indirect advocacy, political decision makers in the countries and in Washington, New York, Brussels and elsewhere to listen and to act to prevent widespread violence.

The founders of Crisis Group include former Senator George Mitchell, career Ambassador Mort Abramowitz, Bernard Kouchner (now France’s foreign minister and the founder of Doctors Without Borders), Congressman Steve Solarz, Mark Malloch Brown and George Soros. Senator Mitchell and Nobel prize winner Martti Ahtisaari are board chairman emeritus. They believed that the end to the Cold War made it more likely that the major powers would ignore even flagrant abuses of fundamental human rights. They considered that unacceptable morally and strategically because of the potential impact on international peace. We now know that vulnerable states can become sanctuaries for terrorists whose reach extends to every nation.

The Crisis Group operates in some 60 countries with field presence in some 33 countries and our true value-added starts with the quality of our analysis from an incredibly talented staff comprised of more than 45 nationalities who speak more than 50 different languages.  We publish some 90 reports each year. We benefit as well from a board of trustees that includes former heads of state from nearly every continent. Our new president is Louise Arbour, former Canadian supreme court justice, former prosecutor at the International Tribunal on Rwanda and the International Criminal Tribunal for the former Yugoslavia.

Crisis Group has identified in our reports - all on our website www.crisisgroup.org - about 2 million of which are downloaded each year---structural causes of conflict. They include: socio-economic inequity; inequality (particularly systematic ethnic discrimination); denial of human rights and injustice; lack of representative or effective governance; long standing grievances over the allocation of land, water, and other resources, as well as insecurity. If unattended, they constitute the tinderbox of conflict. We also seek to identify the triggers—the flawed election, corruption scandal, targeted ethnic killings, sudden decline in economic well-being—that can ignite those structural conditions, into civil violence and worse into mass atrocities

Where are we today?

First, the bad news

  • According to the Human Security report by Andrew Mack at the University of British Columbia, twenty countries were embroiled in major armed conflicts at the end of the Cold War - nineteen of these conflicts were civil wars. In 2008, Kenya was added, increasing the number of conflicts to 21.
  • According to a study released last April by Dr. Barbara Harff and Ted Robert Gurr, nine countries still have a high risk of genocide or politicide, the latter concept uses Harff’s definitions  of “political mass murder” campaigns directed primarily against civilians and, paralleling the language of the Genocide Convention, intended to eliminate in “whole or in part” groups of people because of their political views). They were Sudan, Burma, Somalia, Pakistan, Iran, China, Zimbabwe, Rwanda and Saudia Arabia.
  • Since 1992, campaigns of violence against civilians – “one-sided violence” as the Uppsala Conflict Data defines it –perpetrated by militia, rebels, warlords or criminal organizations, in part aimed at terrorizing the civilian population rose from 18 to a high of 38 in 2004. Although the number of campaigns has since dropped, the latest count is still at 26. Non-state Actors more than state actors were responsible for those actions, but, as with the Janjaweed, the paramilitary militia in Darfur, they are non-state actors carrying out the orders of, supported by or ignored by state authorities.

The worst of these conditions of civil violence reaches a different level, a level of such disdain for human life, that it has been globally condemned since World War II and the Holocaust.

The enormity of the holocaust led many of us to explore our own avenues to extend “Never again” beyond rhetoric and to build effective laws, policies and institutions dictators, governments, and non-state actors who act without regard for the value of human life.

There is also some Good News

Since the end of the Cold War, there has been some positive movement including a decline in the absolute number of wars, in the number of deaths in war, and in genocides. Fewer deaths have been recorded since 1991 largely because during the Cold War, proxy wars were fought with large armies and every national conflict was invested with international strategic meaning.

Also since the end of the Cold War, there has been some progress on building up the institutional barriers to genocide, mass atrocities and ethnic cleansing:

  • First, the expansion of the UN’s peacemaking, peacekeeping and peacebuilding capacity. Currently there 18 United Nations Peacekeeping missions involving more than 113,000 military, police and civilian staff trying to help those countries make the transition from conflict to stability, peace and hopefully economic development.
  • Second, the demand that those responsible for the bloodshed and atrocities must be held accountable has led to the establishment of special international war crimes tribunals and now the permanent International Criminal Court. That demand was also reflected in President Obama’s speech on accepting the Nobel Peace Prize where he said, “More and more, we all confront difficult questions about how to prevent the slaughter of civilians by their own government,” and added, that for “those who violate international law by brutalizing their own people. When there is genocide in Darfur; systematic rape in Congo; or repression in Burma – there must be consequences.” ;  and
  • Finally, perhaps the most visible and hopefully far-reaching change in international institutional structure came when the UN General Assembly in September 2005 adopted the concept of a “Responsibility to Protect” in a special session after pressure from hundreds of non-governmental organizations (NGOs) around the world including the Crisis Group. That concept was developed initially by the International Commission on Intervention and State Sovereignty that was co-chaired by Gareth Evans, our former president, and Mohammed Sahnoun.

For decades, efforts to justify intervention on behalf of victims of human rights came up against the claim, spurious in my view, that national sovereignty protected states from any international interference in their internal affairs---even if it meant watching those governments kill their own citizens.

The “Responsibility to Protect” doctrine sidesteps the national sovereignty versus humanitarian intervention argument by establishing that a fundamental responsibility of the sovereign is the protection of human beings within its borders. Thus, the primary obligation rests with the nation-state to prevent human rights abuses within its own territory. It holds that sovereignty is not the authority to violate the rights and physical integrity of the individual, as Francis Deng, the Secretary General’s special advisor for the prevention of genocide has stated, but rather the responsibility to provide protection for those under its protection.

The 2005 World Summit document makes clear that in extreme cases, when “genocide, war crimes, ethnic cleansing and crimes against humanity” occur and the nation state either is unable to prevent their continuation or is itself complicit then the responsibility shifts to the wider international community.

The concept then accepts in paragraph 139 a collective responsibility where states fail, through intent or incapacity, working through the United Nations, to react, when conditions reach the point of “genocide, war crimes, ethnic cleansing and crimes against humanity”. The concept calls first to use the whole array of peaceful tools---diplomacy, humanitarian assistance, special rapporteurs, commissions of inquiry, arms embargos, targeted sanctions on the responsible government officials, economic and financial sanctions, even preventive deployment of military forces—for instance EUFOR on the Chadian border.

Responsibility to Protect is an international security and human rights norm to address the international community’s past failure to prevent and stop genocides, war crimes, ethnic cleansing and crimes against humanity. It is not aimed at every conflict or every breakdown in public order or every instance of organized violence. However, when the violence reaches the level of crimes against humanity then international response is required.  It is required not only because of the violation of universal values but because it also poses direct threats to national security interests and to international peace.

R2P also avoided the legalistic claims that nothing could be done unless the violence reached the level of genocide and the convention’s requirement satisfied of “an intent to destroy in whole or in part a national, ethnical, racial or religious group”. Without the proof of “intent” which lawyers can argue about for years, inaction was the rule. The Responsibility to Protect side-stepped that legalistic bar to action by encompassing broader mass atrocity crimes as warranting international response.

R2P can be broken down into three pillars:

  1. Pillar One stresses that States have the primary responsibility to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.
  2. Pillar Two addresses the commitment of the international community to provide assistance to States in building capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assist those which are under stress before crises and conflicts break out.
  3. Pillar Three focuses on the responsibility of the international community to take timely and decisive action to prevent and halt genocide, ethnic cleansing, war crimes and crimes against humanity when a State is manifestly failing to protect its populations.

Those three pillars, in fact can be translated in a much more powerful way as the following:

  • the responsibility to prevent,
  • the responsibility to react, and
  • the responsibility to rebuild, the latter particularly if military force has occurred.

The responsibility to prevent implies making every effort to address both root causes and immediate sparks of internal conflict and other man-made crises putting populations at risk. It requires sufficient early warning to enable the international community to engage with the national government. In the UN’s 2009 report on implementing R2P, Sec. General Ban Ki-Moon refers to the important role of early warning. He stressed a human-rights-based approach at the country and international levels, building up the civilian capacities of regional and sub-regional organizations to prevent crimes and violations, and improving information-sharing among members of the international community.

That means to be effective, early warning systems must have the capacity to identify the structural, root causes of conflict and the proximate factors that can ignite deadly violence.

As budgets for foreign offices tend to shrink, even in large foreign services like the US and Britain, there seems to be less capacity than ever to track and monitor fragile situations and conflicts in the making. As a result, NGOs such as the Crisis Group, Human Rights, Amnesty and investigative journalists play a much larger role.

NGOs can produce ground-based information and analysis and communicate instantly through laptops, satellite linkages and the internet. That information can be used by experienced policy professionals in-house at Crisis Group, in academic and research think tanks to build a prevention strategy. Together they can amplify the urgency of its adoption through the media and, at times, crack through the beltway chatter to make a mark on public consciousness and on public officials. We can help shape the policy debate within governments, regional and international bodies.

But it is by no means a fully functioning global information system—it is not coordinated and it is not comprehensive. Despite the harping on early warning and prevention, there is no internationally accepted, legitimized and global early warning system. Local and international press, NGOs, Foreign Ministries, regional intergovernmental organizations and the United Nations itself—all are capable of and in fact do put forth tons of paper, reports and documents, not to mention email. But it does not constitute an organized system.  

Even the U.S. government is recognizing this gap internally. In recent testimony, the director of National Intelligence admitted at a recent Congressional hearing that there is  no central clearinghouse in the U.S. for gathering information of the risks of genocide in nations. He promised to remedy that situation and to offer a list in future annual intelligence reporting on those countries where the risk of genocide or other mass atrocities in the next three to five years was high.

Nevertheless, in many instances, the absence of action before a potential explosion in Kenya, Sudan, Rwanda, the Congo, Pakistan, Iraq, Afghanistan is not for the lack of available information. Instead it has been the lack of available tools to respond or more frequently the absence of the political will to use the instruments that do exist. The lack of response—domestic or international—has seen those factors fester, in Langston Hughes’ words, “like a raisin in the sun”.

Which brings us to the second element of R2P, the Responsibility to React. In situations of compelling human need there is still no automatic response guaranteed from the international community to—immediate diplomatic actions, humanitarian response, special envoys, special rapporteurs, commissions of inquiry, arms embargos, targeted sanctions on responsible government officials, economic and financial sanctions, orpreventive deployment of military forces. Ensuring acceptance of the responsibility to react remains the most serious challenge in the implementation of the Responsibility to Protect. And if there is early response, measures far short of military action may be successful in preventing mass killings. However, there is no automatic mechanism that demands naming of a special envoy or a mediation team when the potential for serious conflict exists—such as in Kenya or Somalia—or insure adequate guarantees for the implementation of the Comprehensive Peace Accord in Southern Sudan—whether that is the United States or the United Nations.  Only in the extreme does it involve coercive military force—although that instrument needs to be on the table. Yet the seriousness of the consequences of military force requires a consensus that it must take place under legitimate authority, be proportional, assure strict adherence to international humanitarian law, operate under vigorous political oversight and have reasonable prospects of success without producing worse consequences in its wake.

The third element of the concept is the responsibility to rebuild, that provides in the aftermath of a successful international reaction, a continued commitment for recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert. It is sustained engagement rather than short-term involvement followed by a rapid exit strategy. The latter almost guarantees a renewal of the potential for civil conflict not too far down the road.

As Secretary General Ban Ki Moon stated recently in his first clarification of R2P since the World Summit, “It would be neither sound morality, nor wise policy, to limit the world’s options to watching the slaughter of innocents or to send in the marines. The magnitude of these [] crimes and violations demands early, preventive steps -- and these steps should require neither unanimity in the Security Council nor pictures of unfolding atrocities that shock the conscience of the world.”

He is right. However, while the norm has been enunciated and formally adopted, it has not yet been embedded in the routine conduct of nations or the UN itself—as we have seen in the absence of an effective response to protect civilian lives in Darfur, or the DRC, or in Afghanistan or in Somalia. But as someone who served in the first Bureau of Human Rights in the State Department under President Carter, I still harbor enormous optimism about how far we have come in overcoming those who asserted for decades  the absolute nature of national sovereignty.   

In addition, the recommendations of a bi-partisan commission on the prevention of genocide and mass atrocities led by former Secretary of State Madeleine Albright and former Secretary of Defense William Cohen clearly have gotten attention. Their recommendation for an inter-agency committee dedicated to prevention of atrocities already is being discussed as likely to be proposed by the Obama administration. In addition their view that mass atrocities and genocide automatically pose a threat to U.S. security may well be reflected in the upcoming National Security Strategy.

There is today one instance, Kenya,  where we can see the potential of the Responsibility to Protect—in the background, unstated until after the fact, but very definitely a factor in international decisionmaking to limit the waves of ethnically-linked killings in Kenya in 2008.

The flagrantly flawed presidential election in Kenya in December 2007 announced as having been won by the incumbent, Mwai Kibaki, produced not only its worst political crisis since independence, but waves of ethnic violence across the capital Nairobi, the rural Rift Valley and other regions of the country. An estimated 1300 were killed and between 350-600,000 displaced. The brutality of the killings, rapes and ethnic violence shocked the region and the world because Kenya – despite everyone’s awareness of the structural factors of inequity and instability – had maintained itself as a model of democratic governance.

State authority collapsed in the political strongholds of the opposition Orange Democratic Movement (ODM) of its leader, Raila Odinga. His followers took to the streets in violent protest against the theft of the presidency and to seek revenge on the Kikuyu communities perceived to be loyal to Kibaki. The security forces reacted with great brutality and members of the communities supporting ODM were violently targeted by Kibaki supporters. The burning of the church in Eldoret with three dozen Kikuyu inside, the hate speech prevalent among Kikuyus, Kalenjins and Luos, the Kikuyu Mungiki gangs that rampaged in the Nairobi slums all placed the Kenyan crisis squarely in the Responsibility to Protect context.

International response was rapid. Former UN Secretary General Kofi Annan, now also a member of our Board of Trustees, and a distinguished team of other African leaders, including former President Banjamin Mkapa of neighboring Tanzania, were mandated by the African Union (AU) to mediate the crisis with strong support from the United Nations and others. Key knowledgeable NGOs, including Crisis Group, engaged with the mediation team over the next month and half of negotiation with Odinga and Kibaki.

Many might suggest that R2P is a concept thrust on the developing world by the “global North”. Therefore, it is important to recognize that the individuals who seized the initiative and designed the outcome in Kenya were two Ghanaians, two South Africans and two Tanzanians.  Their work was supported by the willingness of the United States and European Union to sanction those resisting a peaceful solution, by the expressions of concern and commitment by the United Nations Security Council and the UN Secretary General, and by the work of groups such as the UN Department of Political Affairs and the International Crisis Group to inform the dialogue and discussion.

The agreement led to a coalition government with Odinga named to a newly created post of Prime Minister and some balance between the parties with respect to members of cabinet and agreement on a 2012 election following electoral and constitutional reforms, and commissions of inquiry into the election fraud and the violence.[xii]

There are continuing concerns reflected in the failure to see the full achievement of the elements to the power-sharing agreement, particularly the legal and constitutional reforms needed during the transition period, including the overhaul of the electoral framework, consensus economic reform policies and measures to hold accountable those responsible for the original violence and to compensate the victims.

Nevertheless, the potential for a near national conflagration of ethnic cleansing and killing was halted.  A process set in motion with continuing international engagement, including the ICC, and the Annan mediators, who still have a presence when—as in the last several weeks—the underlying political confrontation between president and prime minister, appeared about to rupture the coalition government. Kofi Annan reportedly intervened to urge the two men to meet to discuss a way out of the current political crisis over corruption and competing powers.  

We are not out of the woods yet, though. The referendum on the proposed constitutional reform is scheduled for this summer and between now and then the situation is likely to become even more tense. The view of the U.S. that Kenya’s attorney general was obstructing progress resulted in his being denied a visa to travel here. The situation is uncertain; mercenary gangs remain for hire by political factions and the coming months are likely to see rising political confrontation. However, the first use of R2P did offer an entire nation a respite from widespread violence for two full years.

The stakes in maintaining peace go beyond Kenya, whose political and economic health is an essential ingredient for the security and prosperity of eastern and central Africa and indeed for the entire continent.

According to Ed Luck, the Special Representative to the UN Secretary General for Responsibility to Protect, Kenya is seen as a success story for the UN and R2P:

"So the only time the UN has actually applied this, was in the case of Kenya, early in 2008 after the disputed elections. When there's seven or eight hundred people ... killed, it was not clear there was full-scale ethnic cleansing, but it could well become that or even something greater, and the UN decided to apply R2P criteria and to really make it the focus of the efforts there. And Kofi Anan, the former [UN] Secretary General who was doing mediation on the ground at that time, has said since that R2P was the lens through which he saw his whole efforts there.”

Are we home free? Do we have a universally accepted norm that can ensure the absence of future mass atrocities, ethnic cleansing, war crimes and genocide? Unfortunately not; but we have made a start.

In paraphrasing Elie Wiesel in his Nobel Prize acceptance speech, I would say, “None of us in a position to eliminate” mass atrocities; “but it is our obligation to denounce” them “and expose” them “in all” their “hideousness” and to do everything humanly possible to prevent them from ever happening again.

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