Responsibility to Protect: Coming of Age

Was 2008 the year when the concept of "responsibility to protect" finally jumped from the obscure paragraphs 138 and 139 of the World Summit Outcome document into the consciousness of policymakers, civil society activists, and international organization officials around the world?

For several years, many supporters of this concept have feared that its October 2005 unanimous adoption by the United Nations General Assembly would be its pinnacle of acceptance by the community of nations, and that in the wake of inaction to operationalize the concept and growing resentment against the heavy-handed approach of western actors, especially the administration of George Bush, the tide had turned.  A new  "coalition of the unwilling", primarily from developing countries like India, Egypt, Pakistan and erstwhile ally South Africa, even went so far as to suggest that the world had rejected the concept of responsibility to protect at the 2005 summit. 

By contrast, 2008 began with UN Secretary-General Ban Ki-moon appointing a special representative, distinguished academic Edward Luck, to outline a strategy required to implement the responsibility to protect in support of his newly upgraded office of the special adviser for the prevention of genocide.  Luck's white paper, released in January 2009, provides a useful roadmap for UN action, focusing equally on protection responsibilities of the state, assistance to states to meet their responsibilities, and "saving lives through timely and decisive action."  The Global Centre for the Responsibility to Protect was established at City University of New York, and formed associative relationships with other key centers in Australia, Indonesia, Ghana, Spain and Norway. 

A Task Force on the Prevention of Genocide completed its work in December under the leadership of former US Secretary of State Madeleine Albright and Secretary of Defense William Cohen: its impressive set of recommendations, especially in the area of early warning, preventative diplomacy and early response - while addressed primarily to the incoming Obama administration - has broad applicability for other governments and international organizations alike.  The publication of papers and holding of conferences on responsibility to protect became almost a cottage industry during the year.

While these developments helped promote responsibility to protect as an evolving norm, the real utility of the concept as a conflict prevention tool must be measured through its real-world and real-time application.  In this sense, 2008 was indeed a pivotal year, as the concept was increasingly invoked by political leaders and journalists alike as a lens for viewing emerging crises.  The application - or in some cases, misapplication - of the concept in four crises during the year provided fascinating, although not necessarily consistent, lessons.

• " When failed elections in Kenya were followed by vicious inter-ethnic riots and killing in January, international actors almost instinctively asked if we were seeing the first stages of a Rwanda-style genocide, and engaged in pre-emptive international action that responsibility-to-protect advocates have long encouraged.  International leaders, especially from Africa itself, refused to allow claims of sovereignty by President Mwai Kibaki to forestall their political intervention.  Their efforts also demonstrated the willingness of the international community to look beyond calming the immediate crisis and address root causes of mass atrocities.
   
• " When the Myanmar junta's first reaction in May to the worst natural disaster in the country's recorded history - Cyclone Nargis - was to keep out desperately needed foreign assistance, key international policymakers asked whether this constituted a prima facie crime against humanity and thus justified coercive international action.  The resulting international pressure empowered regional leaders to press the Myanmar military leaders to permit relief and recovery assistance throughout the Irrawaddy delta. 
   
• " When Russian troops crossed into first South Ossetia and then into Georgia proper in August, Russian Prime Minister Vladimir Putin and President Dmitri Medvedev invoked the responsibility to protect, arguing that their actions were designed to prevent genocide against the South Ossetian people.  Almost in unison, the international community rejected this misapplication of the concept, thus helping to clarify the limits of such claims. 
   
• " And when some in the international community were prepared to say "enough-is-enough" at year-end to Robert Mugabe's campaign of repression and manipulation of assistance, calls for forceful action under the responsibility to protect rubric began to proliferate.  The unwillingness of regional leaders in particular, however, to use all appropriate levers short of military intervention - coupled with the unfeasibility of military action itself - demonstrated some disturbing limitations on the concept in the real world.

Other situations - including conflicts in Somalia, eastern Democratic Republic of the Congo, northern Uganda, Darfur and Sri Lanka - were also increasingly seen through the responsibility to protect lens.  In each case, the international community viewed these situations not only as garden-variety conflicts, but also to ask pointed questions about the extent to which international actions were compelled by actual or imminent cases of genocide, ethnic cleansing, crimes against humanity and/or war crimes.

To understand better what these developments mean, it is useful to review the situations of Kenya, Myanmar, Russia-Georgia and Zimbabwe in greater depth.

Kenya

Arguably, the situation in Kenya constituted the "purest" version of responsibility to protect.  On January 2, 2008, a week after the failed Kenyan elections, I sent a message throughout the International Crisis Group network.  It read in part:

For me, the burning of the church in Eldoret with three dozen Kikuyu inside; the history of violence in the Rift Valley; and the hate speech prevalent among Kikuyus, Kalenjins, Luos and Luhyas takes this out of the context of usual post-electoral conflicts and puts it squarely into a pre-R2P stage.  While the parallels between Kenya and Rwanda can be easily overdrawn, the deterioration in other seemingly solid regional African countries such as Cote d'Ivoire and Zimbabwe could easily be repeated in Kenya to tragic effect.  It's time to sound the alarm bells.

Within days, literally, the international community was on the move, led by the African Union and the neighboring states.  Several international leaders spoke in terms of responsibility to protect, including UN Secretary General Ban Ki-moon; others did not.  But in any case, the world adopted preventative actions straight out of the responsibility to protect "manual." Then-African Union (AU) chairperson John Kufuor, Archbishop Desmond Tutu, former Mozambican President Joachim Chissano and others descended rapidly on Nairobi.  Subsequently, UN Secretary General Kofi Annan, Benjamin Mkapa and Graca Machel were empowered by the AU to help resolve the crisis.  They adopted a sophisticated approach that had two goals: end the immediate threat of escalating violence and create a framework and a national dialogue to address the underlying roots of the conflict, including ethnic divides, disempowerment and alienation among large parts of the population, inadequate checks on the exercise of executive power by the President and inequitable distribution of wealth and land. 

The first step was to reject the false assertion of sovereignty and legitimacy that Kenyan President Mwai Kibaki sought to shield himself behind through a pre-emptory inauguration.  The international community rejected this claim and instead asserted that the people's interests in forestalling potential mass atrocities insisted on a power-sharing arrangement between Kibaki and opposition leader Raila Odinga, who eventually became Prime Minister.  

Their work was supported by the willingness of the United States and European Union to apply sanctions on those resisting a peaceful solution, by expressions of concern and commitment by the UN Security Council and Secretary General, and by the work of groups such as Centre for Humanitarian Dialogue and International Crisis Group to inform the dialogue and discussion. For those who suggest that responsibility to protect is being thrust on the developing world by the so-called global North, it is instructive that those seizing the initiative and designing the outcome in Kenya were Ghanaian, South African, Mozambican and Tanzanian.   

What was also significant about the Kenyan experience is the understanding that applying responsibility to protect does not mean seeking a short-term fix to complex problems, leaving the underlying conditions in place to emerge again when conditions are ripe.  The international mediation understood that the political accommodation reached between the Kibaki and Odinga could not become an elitist substitute for actions needed to bring about a society able to absorb social strains without resort to ethnic violence.  The accord insisted on constitutional and legal reform that reduces the power of the executive and overhaul the electoral framework; economic policies to ensure a more equitable distribution of land and income; a framework for addressing ethnic violence and humanitarian crises; engagement of civil society and the business community in governance issues; accountability for crimes committed in the post-election violence; and dismantling of militias, especially ones that are ethnic based.  Regrettably, the pace of implementation of these steps has been slow and halting, and there is a strong possibility of an unraveling of the compact with disastrous effects.

Myanmar

In Myanmar, A few months later, the initial response to the May 2 Cyclone Nargis was shockingly inadequate. The military junta not only failed to launch a substantial relief operation of its own; it selectively blocked access for international agencies and private donors to the worst-affected areas. Images of junta generals assuring the world that everything was under control and proceeding with a referendum designed to achieve its political objectives were juxtaposed on international media with pictures of obliterated villages and mass suffering.  It was not only sworn opponents of the regime who responded with public condemnation; loud demands for full, unfettered access for foreign personnel; and threats of intervention or sanctions.

French Foreign Minister Bernard Kouchner, the father of "ingérence humanitaire," raised the spectre of coercive international intervention to address this.  While deaths occurring as a direct result of natural disaster do not fall under the mandate of responsibility to protect, Kouchner and others suggested a twist, one that had been envisioned in the original International Commission on Intervention and State Sovereignty (ICISS) study, if not explicitly picked up in the World Summit Outcome document.  If deaths were occurring not from the cyclone itself, but from the government's refusal to allow assistance to reach vulnerable population, might this negligence constitute a crime against humanity that could invoke the responsibility to protect?  Kouchner proposed that the UN Security Council pass a resolution that "authorizes the delivery and imposes this on the Burmese government." 

While the rejection of this concept by responsibility to protect naysayers like China and Russia was immediate and predictable, even the concept's supporters seemed uncertain about how it applied in this case.  Former ICISS Chairman and International Crisis Group President Gareth Evans warned against broad expansion of the rationale for coercive action under responsibility to protect, but pondered whether international action such as military airdrops should be taken against the military government's will "in the name of humanity."  He wrote, "If what the generals are now doing, in effectively denying relief to hundreds of thousands of people at real and immediate risk of death, can itself be characterized as a crime against humanity, then the responsibility to protect principle does indeed cut in." 

It was in the political realm where this public debate had the most impact.  The responsibility to protect concept gave further clarity to international outrage, and it became clear that China and Myanmar's friends in the ASEAN - in particular Singapore and Indonesia - were embarrassed by the situation, even if the Myanmar government perhaps was not.  These governments explained to the junta that their capacity to protect Myanmar's regime from external interference was being dramatically undercut by its intransigence and its seeming indifference to the suffering of its own people.   Within weeks the regime's stance had substantially changed, not only welcoming aid channeled through regional actors, but also establishing a unprecedented coordination mechanism that opened the door to the possibility of expansion of recovery assistance throughout the country - not just the Irrawaddy Delta.  Within weeks, UN Emergency Relief Coordinator John Holmes could state that the situation in Myanmar had become "a normal relief and recovery effort."

Russia-Georgia

Russia's unfounded suggestion that its August military offensive in South Ossetia and subsequently into Georgia was justified by "responsibility to protect" concepts further helped sharpen the edges of what constitutes a legitimate application of the concept. 

Russia, which has been strikingly unreceptive to applying responsibility to protect globally, tried to pull the equivalent of a diplomatic shell-game by arguing that its military operations in Georgia were justified by that very concept.  President Dmitri Medvedev, Prime Minister Vladimir Putin and UN Ambassador Vitaly Churkin laid the groundwork early on by describing Georgia's actions against populations in South Ossetia as "genocide".  Foreign Minister Sergey Lavrov explicitly argued that Russia's use of force was an exercise of its responsibility to protect:

According to our Constitution there is also responsibility to protect - the term which is very widely used in the UN when people see some trouble in Africa or in any remote part of other regions. But this is not Africa to us, this is next door. This is the area where Russian citizens live. So the Constitution of the Russian Federation, the laws of the Russian Federation make it absolutely unavoidable to us to exercise responsibility to protect.

This claim was roundly rejected on many grounds.  In the first place, the primary ground stated for intervention - "to protect Russian citizens" - blurs the distinction between the responsibilities of a state to protect its populations inside its borders, and the responsibilities that a state maintains for populations outside its borders.  Responsibility to protect refers to the duties of a sovereign state to protect populations within its own borders, and of other states to assist it to do so or take appropriate action if it fails to do so.  Protection of populations outside their borders falls more appropriately in the context of "self-defense," as defined under Article 51 of the UN Charter.

Reviewing the criteria cited by the recommendations of the UN High Level Panel, A More Secure World, in 2004, it was not clear that "genocide, war crimes, ethnic cleansing or crimes against humanity" were being committed or were about to be committed by Georgia against South Ossetians.   Russia did not make the case that the threat to South Ossetians was of a nature and scale as to legitimize the use of military force.  While Georgia's attack on Tshkinvali was generally seen as an unjustified overreaction to provocations and resulting in violations of international humanitarian law, even in retrospect a Human Rights Watch report suggested that the only likely cases of mass atrocities were attacks by South Ossetians on ethnic Georgia, which may have been ethnic cleansing. 

Similarly, international observers questioned whether the primary purpose of the Russian military intervention was to protect South Ossetian civilians or instead to establish full Russian control over both South Ossetia and Abkhazia, where there was no claim of genocide; to dismantle Georgia's military capability; to scuttle its NATO ambitions; and to send a clear signal to other former parts of the Soviet Union as to what would and would not be tolerated by Moscow.  In addition, the introduction of some 20,000 troops and 100 tanks not only into South Ossetia but also into Abkhazia and Georgia proper appeared manifestly excessive. The Russian naval blockade in the Black Sea as well as aerial bombings of Gori, Poti, the Zugdidi region and an aviation plant in Tbilisi went well beyond the necessary minimum.

Against this backdrop, the fact that the Russians never made any effort to seek UN Security Council approval is a clear contradiction with paragraph 139 of the World Summit Outcome document.  There are times when many in the international community view military intervention without UN Security Council approval as "legitimate" if not "legal", such as the NATO action in Kosovo in 1999.  However, the exercise of walking through the High-Level Panel criteria helped the international community reach the conclusion that this was not one of those cases.

Zimbabwe

As Zimbabwe descended into the growing humanitarian, economic, and political crisis toward the end of 2008, more and more international actors, including Kenyan Prime Minister Raila Odinga and Nobel Laureate Desmond Tutu, called for forceful international action in responsibility to protect terms.  Even those who rejected the idea that mass atrocity crimes were already occurring generally accepted that Zimbabwe action was needed to ensure that the situation does not deteriorate to that extent.  The argument was reinforced by the facts: atrocity crimes have certainly been committed in the past in Zimbabwe, as in Matabeleland in the 1980s; conflict-generating tensions were spiraling out of control; Zimbabwe's coping mechanisms were vanishing; the authorities were resistance to external advice or pressure; and the quality of government leadership was disastrously low. 

Others were arguing more robustly that mass atrocity crimes were already being commited, citing widespread reports of organized violence - including murder, torture, rape, and denial of access to food - that Mugabe's regime had launched against supporters of the political opposition.  To the extent that such were "widespread or systematic," they met the definition of "crimes against humanity" laid down in the Rome Statute that established the International Criminal Court (ICC). 

Further, mirroring the discussion on Myanmar, others argued that the Mugabe regime was showing "reckless indifference" to the humanitarian crisis - involving the complete collapse of the country's health system, the emergence of cholera, massive displacement and hunger bordering on starvation - and thus the situation could be characterized as involving the commission of a crime against humanity under the Rome Statute definition of this crime.

Irrespective of the strength of these arguments, the Zimbabwe case displays the disturbing limitations on the use of responsibility to protect, especially in the absence of a common stance from the international community and, in particular, the regional actors.  Even those tempted to call for military intervention to address the crisis had to acknowledge that this was simply not in the cards: sending in an invasion force without the active support of Zimbabwe's neighbors, and especially South Africa, could have extremely destabilizing regional consequences. 

Further, the feasibility of a coercive military action to stop cholera, feed starving populations, return displaced persons to their homes and re-establish viable medical systems in the face of armed resistance from the local military and government-supported militias was uncertain.  And such action was not going to gain the necessary legal authority from the UN Security Council in the face of likely Russian and Chinese vetoes, nor was it likely that troops could be found for such a mission even if it did.

If the international community understood that coercive military action was off the table, so too did Mugabe and his regime.  Thus, to the extent that the threat of military intervention could have been a tool to press the regime to desist in its behavior or to fulfill its commitment to a power-sharing agreement negotiated in September, it was immediately neutered.  But SADC negotiator Thabo Mbeki's obsequious approach toward Robert Mugabe, backed generally by the SADC Heads of Government, meant that even the more modest elements of pressure stemming from the invocation of responsibility to protect were no threat. 

Mugabe knew that he was safe from such measures as adoption of much broader targeted sanctions against regime members and supporters; UN Security Council referral of actions in Zimbabwe to the ICC for investigation and possible prosecution; expulsion of Mugabe's regime from regional bodies, such as SADC and the AU; and placement of the situation in Zimbabwe on the UN Security Council agenda as a threat to international peace and security.

The agreement by the Movement for Democratic Change in January 2009 to enter into a power-sharing government with ZANU-PF has changed the dynamics of this situation, at least for now.  But, the fact remains that there is no sign that the increased invocation of responsibility to protect threats and arguments had the least impact in encouraging flexibility, accommodation or even enlightened self-interest on the part of Mugabe and company.

Conclusion

The broad acceptance of norms such as responsibility to protect is not a linear process, and the global reaction to the four cases noted herein might be simplistically described as three steps forward, one step back.  This progress should not blind us to the fundamental challenges to be met if this concept is to be translated into effective action to protect people from mass atrocity crimes at the international, national and community level.

Advocates must advance and consolidate the World Summit consensus, resist backsliding, and enshrine its principles in relevant international, regional and national institutions and forums beyond the United Nations.  They must protect the integrity of the concept, ensuring that it is not viewed too narrowly as only about non-consensual military intervention, or too widely as a synonym for addressing all human security issues.  They must clarify when non-consensual military force can and cannot be used consistent with its principles.  They must build capacity within international institutions, governments, and regional organizations: civilian and military, preventive and reactive.  And they must help put in place mechanisms and strategies needed to generate an effective political response as new R2P situations arise.  Let the work continue.