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Table of contents :
Cover
Title
Copyright
CONTENTS
List of tables
List of contributors
Acknowledgements
Introduction
PART I The concept of R2P
1 From sovereign responsibility to R2P
2 The Responsibility to Prevent: toward a strategy
3 The Responsibility to React
4 The Responsibility to Rebuild
5 The challenges facing R2P implementation
6 What is right with R2P?
PART II Developing and operationalising R2P
7 Operationalising protective intervention: alternative models of authorisation
8 Who should act? Collective responsibility and the Responsibility to Protect
9 Mobilising the troops: generating the political will to act
10 Leadership and the Responsibility to Protect
11 R2P and natural disasters
12 The Responsibility to Protect and child soldiers
13 Securing consistency for consistent security: gender and the Responsibility to Protect
14 Making R2P work: now and in the future
PART III The view from over here
15 Paper tiger or platform for action? South Asia and the Responsibility to Protect
16 The economic community of West African States and the Responsibility to Protect
17 Evaluating the implementation of the Responsibility to Protect in East Africa
18 Southeast Asia: between non-interference and sovereignty as responsibility
19 R2P in the Middle East and North Africa
20 Concluding thoughts
Index
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THE ROUTLEDGE HANDBOOK OF THE RESPONSIBILITY TO PROTECT

This Handbook offers a comprehensive examination of the Responsibility to Protect norm in world politics, which aims to end mass atrocities against civilians. The Responsibility to Protect (R2P) is amongst the most significant norms in global politics. As the authoritative guide to R2P, this edited volume gathers together the most respected and insightful voices to address key issues related to this emerging norm. The contributing authors do this over the course of three parts:  Part I: The concept of R2P  Part II: Developing and operationalising R2P  Part III: The view from over here. This book will be of much interest to students of R2P, humanitarian intervention, genocide, human rights, international law, peace studies, international organisations, security studies and IR. W. Andy Knight is Chair of the Department of Political Science and Professor of International Relations at the University of Alberta. In 2011, Dr Knight was inducted into the Royal Society of Canada. Frazer Egerton received his PhD in International Politics from the University of Wales, Aberystwyth, and currently works for the Government of Nova Scotia in the Department of Economic and Rural Development and Tourism.

THE ROUTLEDGE HANDBOOK OF THE RESPONSIBILITY TO PROTECT

Edited by W. Andy Knight and Frazer Egerton

First published 2012 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2012 selection and editorial material, W. Andy Knight and Frazer Egerton; individual chapters, the contributors The right of the editors to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data A catalog record for this book has been applied for ISBN: 978-0-415-60075-0 (hbk) ISBN: 978-0-203-11763-7 (ebk) Typeset in Bembo by Taylor & Francis Books

CONTENTS

List of tables List of contributors Acknowledgements

viii ix xiv

Introduction Frazer Egerton

1

PART I

The concept of R2P

5

1

From sovereign responsibility to R2P Roberta Cohen

7

2

The Responsibility to Prevent: toward a strategy Lawrence Woocher

22

3

The Responsibility to React Frank Chalk, Roméo Dallaire and Kyle Matthews

36

4

The Responsibility to Rebuild Albrecht Schnabel

50

5

The challenges facing R2P implementation Robert W. Murray

64

6

What is right with R2P? Frazer Egerton

77

v

Contents

PART II

Developing and operationalising R2P

85

7 Operationalising protective intervention: alternative models of authorisation Nicholas J. Wheeler and Tim Dunne

87

8 Who should act? Collective responsibility and the Responsibility to Protect Jennifer M. Welsh

103

9 Mobilising the troops: generating the political will to act Tom Keating

115

10 Leadership and the Responsibility to Protect Abiodun Williams and Jonas Claes

126

11 R2P and natural disasters Joanna Harrington

141

12 The Responsibility to Protect and child soldiers Shelly Whitman

152

13 Securing consistency for consistent security: gender and the Responsibility to Protect Jennifer Bond and Laurel Sherret 14 Making R2P work: now and in the future Lloyd Axworthy and Allan Rock

166

181

PART III

The view from over here

195

15 Paper tiger or platform for action? South Asia and the Responsibility to Protect Sarah Teitt

197

16 The economic community of West African States and the Responsibility to Protect Kwesi Aning and Samuel Atuobi

216

17 Evaluating the implementation of the Responsibility to Protect in East Africa Afyare A. Elmi

232

vi

Contents

18 Southeast Asia: between non-interference and sovereignty as responsibility Alex J. Bellamy and Catherine Drummond

245

19 R2P in the Middle East and North Africa Mojtaba Mahdavi

257

20 Concluding thoughts W. Andy Knight

276

Index

287

vii

TABLES

2.1 Illustrative direct R2P prevention measures 2.2 Comparison of smoking and lung cancer vs. violent conflict and mass atrocities

viii

29 32

CONTRIBUTORS

W. Andy Knight is Chair of the Department of Political Science and Professor of International Relations at the University of Alberta. In March 2007, Dr Knight was appointed by the Canadian Foreign Minister to the Board of Governors of the International Development Research Centre (IDRC). He co-edited the international journal, Global Governance, from 2000 to 2005 and was Vice Chair of the Academic Council on the United Nations System (ACUNS). His most recent books are: Global Politics, with Tom Keating (Oxford University Press, 2010) and The Ashgate Research Companion to Political Leadership, with Joseph Masciulli and Mikhail A. Molchanov (Ashgate, 2009). In April 2010, Dr Knight was awarded a national honour – the Harry Jerome Trailblazer Award – for his global scholarly and community contributions. And, in 2011, he was inducted into the Royal Society of Canada (RSC). Frazer Egerton earned his PhD from the University of Wales, Aberystwyth. His first book, Jihad in the West, was published by Cambridge University Press in 2011. Recent articles include (with Nicholas J. Wheeler) ‘The Responsibility to Protect: “Precious Commitment” or a Promise Unfulfilled?’, Global Responsibility to Protect, 1 (1), February 2009, 114–32; ‘A Case for a Critical Approach to Terrorism’, European Political Science, 8, 2009, 57–67; and ‘Alienation and its discontents’, European Journal of International Relations, 17, September 2011, 453–74. Roberta Cohen, a human rights specialist, is a non-resident Senior Fellow at the Brookings Institution specializing in human rights and humanitarian issues. She co-founded the Brookings Project on Internal Displacement, co-directed it for more than a decade and served from 1994 to 2010 as senior adviser to the Representative of the UN Secretary-General on Internally Displaced Persons. Together with Francis Deng, she won the Grawemeyer Award in 2005 for ideas improving world order. She is the author of numerous books and articles on human rights and humanitarian issues, a senior associate at Georgetown University’s Institute for the Study of International Migration and an Adjunct Associate Professor at American University’s Washington College of Law. During the Carter administration, she was deputy assistant secretary of state for human rights and senior adviser to the US delegation to the UN. Lawrence Woocher contributed his chapter while he was a senior program officer at the United States Institute of Peace where he focuses on early warning, conflict prevention, and ix

Contributors

the prevention of genocide and mass atrocities. He was a member of the executive committee and lead expert on early warning for the Genocide Prevention Task Force, co-chaired by former Secretary of State Madeleine Albright and former Secretary of Defense William Cohen. He is also a lecturer at the Elliott School of International Affairs at George Washington University. Frank Chalk is Professor of History and Director of the Montreal Institute for Genocide and Human Rights Studies (MIGS) at Concordia University. Dr Chalk is co-author, with Kurt Jonassohn, of The History and Sociology of Genocide (Yale University Press, 1990), an associate editor of the three-volume, Macmillan Reference USA Encyclopedia of Genocide and Crimes Against Humanity (2004), consulting editor of Gale’s ‘Genocide and Persecution’ series (2011–), and is a past president of the International Association of Genocide Scholars and the Canadian Association for African Studies. Roméo Dallaire has had a distinguished career in the Canadian military, achieving the rank of Lieutenant-General and Assistant Deputy Minister of Human Resources. In 1994, General Dallaire commanded the United Nations Assistance Mission for Rwanda (UNAMIR) for which he was awarded the Meritorious Service Cross. His experiences there became the subject of the book Shake Hands with the Devil: The Failure of Humanity in Rwanda, which was awarded the Governor General’s Literary Award for Non-Fiction in 2004 and was the basis of a full-length feature film released in 2007. In the autumn of 2010 he published They Fight Like Soldiers, They Die Like Children. Kyle Matthews is Senior Deputy Director for the Will to Intervene Project at the Montreal Institute for Genocide and Human Rights Studies, Concordia University. He is co-author of the book Mobilizing the Will to Intervene: Leadership to Prevent Mass Atrocities, and has advised Members of Parliament on issues related to international peace and security. Albrecht Schnabel is Senior Fellow in the Research Division of the Geneva Centre for the Democratic Control of Armed Forces (DCAF). He studied political science and international relations in Germany, the US and Canada (where he received his PhD in 1995 from Queen’s University) and subsequently held teaching and research positions at universities, NGOs and the UN. Among several security sector reform-related projects, he currently focuses on the link between SSR and development. Robert W. Murray is a lecturer of international relations and American politics in the Department of Political Science at the University of Alberta. He has also served as a visiting lecturer of foreign policy at Brock University (2008). He is a regular scholarly and media commentator on foreign policy analysis, humanitarian intervention, and Arctic sovereignty, and has appeared at a variety of major conferences across the world. Nicholas J. Wheeler is Professor of International Politics and Director of the Institute for Conflict, Cooperation, and Security at the University of Birmingham. He is the co-editor (with Christian Reus-Smit) of the Cambridge Studies in International Relations book series, and has served as director of the David Davies Memorial Institute of International Studies. He has written and edited six books, including Saving Strangers: Humanitarian Intervention in International Society, published in 2000 by Oxford University Press. Tim Dunne is Professor of International Relations in the School of Political Science and International Studies, and Research Director at the Asia-Pacific Centre for the Responsibility to x

Contributors

Protect, University of Queensland. He has written and edited ten books, which include Terror in our Time co-authored with Ken Booth (New York: Routledge, 2011). He is currently on the governing body of the International Studies Association. Jennifer M. Welsh is Professor in International Relations at the University of Oxford, and a Fellow of Somerville College. She currently co-directs the Oxford Institute for Ethics, Law and Armed Conflict, where she is leading a research project on the prevention of mass atrocity crimes. She has published widely on international relations theory, the ethics and politics of intervention, the role of the UN Security Council in international society, and Canadian foreign policy. Tom Keating is Professor in the Department of Political Science at the University of Alberta where he teaches international ethics and Canadian foreign policy. He is the author of Canada and World Order, 3rd edition (Oxford University Press, forthcoming 2012); and co-author with Andy Knight of Global Politics (Oxford University Press, 2010), in addition to other works. Abiodun Williams is senior vice president of the Center for Conflict Management at the US Institute of Peace. Prior to joining USIP, he served as associate dean of the Africa Center for Strategic Studies at the National Defense University. From 2001 to 2007, he served as director of strategic planning for Secretaries-General Kofi Annan and Ban Ki-moon. He has taught international relations at Georgetown University, Tufts University, and the University of Rochester. He holds an MA (Hons) in English Language and Literature from Edinburgh University, and an MALD and a PhD from the Fletcher School of Law and Diplomacy. Jonas Claes is senior program specialist at the U.S. Institute of Peace’s Center for Conflict Management, focusing on conflict prevention and the prevention of mass atrocities. Claes is a reviewer for the Global R2P Journal, and has written extensively on the Responsibility to Protect, including a chapter on ‘Responsibility to Protect and Peacemaking’ in the 2011 Praeger Volume on ‘Peacemaking: From Practice to Theory’. He holds an M.A. in Security Studies from Georgetown University, and an MA in International Relations from the Katholieke Universiteit Leuven (Belgium). Joanna Harrington is Professor in the Faculty of Law at the University of Alberta, where she teaches and researches in the fields of constitutional law and international law. She holds a BA from the University of British Columbia, a JD from the University of Victoria, and a PhD in Law from the University of Cambridge. She has combined an academic career with experience as a lawyer and legal adviser, taking leave from 2006–8 to serve as the Scholar-in-Residence with the Legal Affairs Bureau of Canada’s Department of Foreign Affairs and International Trade. Shelly Whitman is currently Deputy Director of the Centre for Foreign Policy Studies at Dalhousie University. In addition, she is Project Director of the Child Soldiers Initiative, a project founded by Lt. General Romeo Dallaire. She also teaches a course on children and war in the International Development Studies Department at Dalhousie. Previous appointments include: Lecturer in Political Science, University of Botswana, Head of Research for the Inter-Congolese Dialogue, and Research Consultant at UNICEF Headquarters, New York. Jennifer Bond is Assistant Professor at the University of Ottawa’s Faculty of Law and Visiting Professor at the University of Michigan, where she is affiliated with the Program in Refugee and Asylum Law. She has served with the United Nations in Syria, clerked at the Supreme xi

Contributors

Court of Canada, directed a national access to justice programme, and worked with the International Women’s Rights Project. Professor Bond completed her graduate work at the Yale Law School as a John Peters Humphrey Fellow in International Human Rights Law. Laurel Sherret is called to the Bar of Ontario and currently works in the Jurisdiction, Complementarity and Cooperation Division at the International Criminal Court. She earned her LLM (Human Rights) at the London School of Economics and also holds degrees in International Relations and Biological Sciences. Her earlier experience includes positions with the UN Refugee Agency, the Superior Court of Justice of Ontario, and the International Women’s Rights Project. Lloyd Axworthy is President and Vice-Chancellor of The University of Winnipeg. He enjoyed a successful political career spanning 27 years, taking on the roll of Minister of Foreign Affairs from 1996–2000. As Canadian Foreign Minister, he established the International Commission on Intervention and State Sovereignty, which gave life to the concept of the Responsibility to Protect. Allan Rock is President of the University of Ottawa. He was Attorney General of Canada, Minister of Health and Minister of Industry. As Canada’s Ambassador to the United Nations, he led the Canadian effort to secure the adoption by world leaders at their 2005 Summit of the Canadian-inspired principle of the Responsibility to Protect. Sarah Teitt is Outreach Director at the Asia Pacific Centre for the Responsibility to Protect, University of Queensland, Australia, where she is responsible for designing and implementing strategies to foster dialogue, build partnerships and encourage the adoption of measures aimed at the prevention of genocide and other mass atrocities in the Asia Pacific. Her research interests centre on China’s multilateral diplomacy in humanitarian crises experiencing or at risk of genocide and mass atrocities, and the link between the protection and promotion of women’s rights and the prevention of mass atrocities. Kwesi Aning is presently Dean and Director of the Faculty of Research and Academic Affairs (FRAA) at the Kofi Annan International Peacekeeping Training Centre (KAIPTC), Accra, Ghana. Prior to his new position, he served with the African Union (AU) and the Department of Political Affairs of the United Nations and has published extensively in academic journals and book chapters. He serves on several boards and was recently appointed to the World Economic Forum’s Council on Conflict Prevention. Samuel Atuobi heads the International Institutions Program at the Research Department of the Kofi Annan International Peacekeeping Training Centre (KAIPTC). He also manages the project on Improving West African Capacities in Mediation and Processes, based at the centre. Some of his earlier publications have focused on the Responsibility to Protect, mediation, elections and corruption. Afyare A. Emi is an assistant professor at the Qatar University’s International Affairs Department. He is the author of the book Understanding the Somalia Conflagration: Identity, Political Islam and Peacebuilding published by the Pluto Press. Elmi’s research interests focus in the areas of political Islam, security, conflict, and peacebuilding (in Africa). Dr Elmi has a BA in Public Administration from Ryerson University, an MA in Political Science from Brock University, a xii

Contributors

second MA in Education Policy from the University of Toronto, and a PhD in political science (specializing in international relations and peace education) from the University of Alberta. Alex J. Bellamy is Professor of International Security at the Griffith Asia Institute/Centre for Governance and Public Policy, Griffith University. He was founding director of the Asia-Pacific Centre for the Responsibility to Protect and co-chair of the Council for Security Cooperation in the Asia Pacific Study Group on the Responsibility to Protect. He is also co-editor of the journal Global Responsibility to Protect. His recent books include Responsibility to Protect and Global Politics: From Words to Deeds (Routledge, 2011) and (with Paul D. Williams) Understanding Peacekeeping (Polity, 2nd edition, 2010). Catherine Drummond is a research intern at the Asia-Pacific Centre for the Responsibility to Protect and the founding president of the Responsibility to Protect Student Coalition (Asia-Pacific). She has a Bachelor of Laws/Arts (Peace and Conflict Studies/International Relations) student at the University of Queensland and is currently working with the United Nations International Criminal Tribunal for Rwanda. Mojtaba Mahdavi is Associate Professor of political science and Middle East studies at the University of Alberta, Canada. His research interests include democratization, Islamism and post-Islamism, social movements, modern Islamic thought, and globalization in the Muslim World. He is widely published in both English and Farsi. His books include Under the Shadow of Khomeinism: Problems and Prospects for Democracy in Post-revolutionary Iran (Rowman and Littleford, forthcoming, 2012) and Towards Dignity of Difference? Neither End of History nor Clash of Civilizations (co-edited, Ashgate, 2012). He is currently working on two projects: Post-Islamism in Context: Neo-Shariati Discourse and Political Sociology of Post-revolutionary Iran.

xiii

ACKNOWLEDGEMENTS

Putting together a book billed as one of the definitive Handbooks on the new norm of the Responsibility to Protect (R2P) would not have been possible without the support and encouragement of a number of people and organizations. We would like to take this opportunity to acknowledge and thank the Department of Political Science in the Faculty of Arts at the University of Alberta; Lorne Babiuk, the Vice President Research; Carl Amrhein, the Vice President Academic (Provost); and Britta Baron, the Associate Vice President, International – all of the University of Alberta – for providing the most conducive environment within which any academic can thrive in pursuit of research such as that which led to this book project. We are grateful to Slavica Lepki and Tara Mish, administrators in the Department of Political Science at the University of Alberta, for their diligence in ensuring that research assistants were compensated on time for their work. A special word of thanks goes to the following research assistants: Peter Amrhein, Nermin Allem, Afrah Saleem, Patrick Wang, Melissa Dupuis and Tobia Neufeld, all of whom contributed in big and small ways in supporting our research efforts. We also owe a debt of gratitude to the reviewers who read the initial manuscript and offered excellent suggestions for changes which helped to make this book a much better read. In addition, we are grateful to the team at Routledge for their patience, efficiency and speed during the process of preparing the manuscript for publication, including Jo Endell-Cooper, Annabelle Harris and Andrew Humphreys, and we especially thank Faith MacDonald for the care and attention she paid during the copyediting of the final draft. Our final round of appreciation goes to all the authors who contributed chapters to this volume. Many of them are exceedingly busy individuals, so we are even more grateful to them for getting their chapter drafts to us in timely fashion and for dealing promptly with queries from us and from the copyeditor. Each one of the chapter contributors is knowledgeable and active in this sub-field of political science. They are all on the cutting edge of the scholarship that addresses the emergence and evolution of the R2P norm. The high quality of this work is testament to the intellectual strengths of the authors. Working on any book project usually involves taking precious time away from our families. We would like our spouses, Mitra Knight and Laura Upton, to know that we really do appreciate all that they have done to allow us to do this project. Needless to say, we take full responsibility for any errors or omissions in this volume. W. Andy Knight University of Alberta Frazer Egerton Government of Nova Scotia xiv

INTRODUCTION Frazer Egerton

The Responsibility to Protect (R2P) claims to offer a solution to one of the gravest issues in world politics – mass atrocities. Ten years after the International Commission on Intervention and State Sovereignty (ICISS) detailed the concept, and five years after it was endorsed by the United Nations, it is an opportune moment to critically explore fundamental questions as to whether R2P has, or is able to, deliver on its promise. Doing so was the reason for gathering experts in the field to contribute to this collection. This introduction is precisely that – a very brief overview of the thorough explorations and substantive insights that follow. Leading the way is Roberta Cohen, who traces the growth of R2P from its antecedents as sovereignty as responsibility. This is a journey through the growth of human rights protection, including efforts to protect internally displaced persons and more recently the development of a norm that refused to accept mass atrocities. No one is better positioned to write on this growth. Along with Francis Deng, Cohen played a crucial role in the development and application of efforts to rearticulate sovereignty as something that entailed real obligations. The subsequent three chapters each deal with one of the three elements that constitute R2P, respectively the responsibilities to prevent, react and rebuild. In the first, Lawrence Woocher describes why prevention represents the best option in ending mass atrocities, how it appears in the development of the discourse about R2P and then offers a thorough analysis as to what is required to develop an effective prevention strategy. Going beyond the welcome but customarily inadequate assertions of the importance of prevention, Woocher offers three distinct but related approaches to prevention, offering clear guidelines as to how they may be advanced. Second, and as one might anticipate with a co-author so inextricably linked to efforts to bring about a military intervention in genocidal Rwanda, ‘The responsibility to react’ is a practical argument for the need to react as laid out in R2P. It examines the challenges to its implementation and argues that reaction is not only a moral imperative but also very much in both the individual and national interest of actors whose sense of isolation from mass atrocities may be an unreliable one. It then lays out the most significant steps to ensure that the rhetoric on reaction is matched by timely and effective action. The third element, the responsibility to rebuild, is the subject of Chapter 4. Here Schnabel argues that this responsibility has been given less attention than the other two responsibilities, but that only serves to undermine both prevention and reaction. Indeed, if one message resonates clearly through the three chapters, it is that a weakening of any one of the three components of R2P substantially weakens the concept as a whole and therefore the potential to end mass atrocities. 1

Frazer Egerton

The subsequent two chapters are summaries of the cases for and against R2P. Representing the prosecution, Murray claims that there are several challenges to R2P that are likely to result in its failure. These are the statist structure of global politics, the limitations of international bodies responsible for action, the relativism of R2P, and the prohibitive political and financial costs of enacting it. For the defence, departing from his editorial objectivity, Egerton cites the two most strongly argued streams of criticism to which R2P is subjected: first, the notion that R2P dangerously undermines sovereignty and the unsteady but invaluable peace and order it offers; and second, that R2P is an imposition. He details why both claims are severely wanting. The next series of chapters consider issues in R2P that remain unresolved and often contentious. In many cases it is these, and their successful resolution, that will determine whether R2P saves humans from the worst others will do to them. The first of these chapters looks at the question of authorization. The question as to when intervention is appropriate and justified, and who determines this, is crucial to R2P. In ‘Operationalising protective intervention: alternative models of authorisation’, Dunne and Wheeler identify and explore several models of armed intervention aimed to prevent or end mass atrocities, first, when consent is given by the government of the affected state and second, when such consent is not provided. Their discussion leads seamlessly to a chapter considering who should act, which actors bear the responsibility in the responsibility to protect. Here Welsh explores some of the key quandaries that challenged the original commission and continue to confront R2P advocates today. Her conclusion is that the location of responsibility in the Security Council, without an adequate appreciation of the limitations of the Council or real insight into how the responsibility may be passed down to individual countries or organizations, has ‘insured that humanitarian crises will continue to go unanswered’. This may not be music to the ears of R2P advocates, but it does emphasize the need for real progress in finding a solution to this issue. In the next chapter, Keating addresses the issue of political will. Often evoked as the one missing ingredient to successful political action, there is a marked lack of consideration as to what it is and how it figures in effective R2P action. Keating uses the prism of Canadian support, and later disinterest, in R2P to examine what we know of political will and R2P. Next, in ‘Leadership and the Responsibility to Protect’, Claes and Williams reflect on the nature of leadership, the evolution of the relationship between leadership and R2P, and finally the role leadership will play in the challenges R2P faces. When Cyclone Nargis devastated Burma, and the country’s ruling junta refused assistance from outside agencies, the relationship between R2P and natural disasters was addressed at the highest level. For some, there was no distinction to be drawn between mass deaths from disease, war or natural disaster, and R2P should answer the call of innocent people in the face of each. For others, including Harrington in this chapter, such an understanding risks ‘draining the R2P concept of its vitality and strength’. The next two chapters address issues that have received insufficient attention – R2P and child soldiers and gender respectively. Both argue, convincingly, that if R2P is to herald a fundamental rethink of more traditional understandings of security, it must engage in a more systematic way with the peculiarities and challenges of both gender and children in situations of conflict. Rounding off this section are the thoughts and insights of two ‘former political practitioners who respectively played a role first in the conception of R2P … and then its adoption’. Axworthy and Rock acknowledge there is unfinished business in ensuring that R2P is a concept that delivers on its promises. In ‘Making R2P work: now and in the future’ the authors seek to explain how the unfinished may be finished, whether through the development of an early warning system or the integration of gender into the R2P framework. For a concept that was inspired and developed to resolve the most real of real world issues, any consideration of R2P demands an examination of its actual application in different contexts. 2

Introduction

The latter part of this collection addresses the successes and failures of R2P in different parts of the world. Inevitably, there are significant areas not examined here. These five chapters are an illustrative snapshot as to when, why, how and to what effect R2P has or has not been applied in a number of important geographical areas. First to the Indian subcontinent, which has played and will continue to play a central role in R2P. The region has seen no shortage of conflicts, both within and between states. At the same time, the region has demonstrated a commitment to peacekeeping by sending large numbers of their respective militaries to serve around the world. As Teitt explains, opinions towards R2P in the region are neither simple nor constant, but the enduring prevalence of conflict in the region, the geopolitical significance of its states, and their importance in providing political, financial and military support to R2P efforts, mean that they are central to the future of the concept. Moving continents, as Aning and Atuobi quote McGowan, ‘from independence … West African states have experienced forty-four successful military-led coups [d’état], forty-three often-bloody failed coups d’état, at least eighty-two coup plots, seven civil wars, and many other forms of political conflict’. If R2P cannot offer solutions for a region such as West Africa, it is hard to imagine where it might. Using Guinea and Niger as case studies, ‘The economic community of West African states and the Responsibility to Protect’ explores the extent to which ECOWAS has proven able to ensure compliance with R2P norms amongst Community states. Switching coasts, Elmi looks at R2P in the east of the continent. As he notes, here too mass atrocities that R2P was designed to end have been committed in recent times. Yet the responses to those mass atrocities have ranged from adequate to detrimental. Overall, ‘the international community has often failed to prevent deadly conflicts in the East Africa region and it has failed to discharge its responsibility to rebuild in the aftermath of a crisis’. The picture, however, is not uniformly poor, and there are lessons for future action. Elmi points to possibilities for improvement, noting that diplomatic and political pressure has succeeded where legalistic approaches have not. The penultimate chapter considers another crucial area. In recent history, Southeast Asia has not been a region where interference in the domestic affairs of other states was readily tolerated. Indeed, non-interference lies at the heart of agreements between the states of the region, and ASEAN in particular. R2P challenges that. However, as Bellamy and Drummond note, there has been movement over recent years that means that the gap between ASEAN’s position and the demands of R2P are less substantive than might have been anticipated. Finally, with events in Egypt, Tunisia, Yemen and beyond very much at the fore at the time of writing, Mahdavi asks to what extent the application of R2P in the area has been consistent and fair. Perhaps more fundamentally, he asks to what extent the concept and its application really has people and not powerful states at its core. This collection was designed to bring together some of the foremost scholars to speak to the key issues in one of the most important issues in global politics. It is to them that we turn now.

3

PART I

THE CONCEPT OF R2P

1 FROM SOVEREIGN RESPONSIBILITY TO R2P Roberta Cohen

Introduction In his Millennium Report to the United Nations General Assembly in 2000, UN SecretaryGeneral Kofi Annan asked: “if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that offend every precept of our common humanity?”1 Annan’s question reflected how far the international community had come since the end of the Second World War when the UN Charter made non-interference in the internal affairs of states a bedrock principle, affirming in Article 2(7): [n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state. Fifty-five years later, Annan was suggesting a qualification of this cardinal rule of international relations, namely an international obligation to collectively halt mass atrocities when governments were unable or unwilling to do so. As others before him, he clearly found that the 1945 Charter failed to reconcile Article 2(7) with Article 1’s call for “respect for human rights and for fundamental freedoms,” and the affirmations in Articles 55 and 56 that UN member states will take “joint and separate action” to promote respect for human rights.2 For much of the Cold War, it was Article 2(7) that was regularly evoked to impede international action on human rights violations. But a wide range of human rights treaties that came into force in the 1960s and 1970s challenged the view that human rights were solely a domestic concern. These treaties made individuals a subject of international law and obliged states not only to respect the rights of those within their borders but to open up their records to the scrutiny of the world community. Increasingly, beginning in the late 1970s, states began to see human rights as an obligation of the international community and joint international appeals became more frequent when conditions within a state constituted “a consistent pattern of gross violations of human rights.”3 Indeed, by the time of the collapse of the Soviet Union, which had been a main proponent of non-interference in internal affairs, a changed attitude toward 7

Roberta Cohen

human rights was evident. It was aptly described by UN Secretary-General Javier Perez de Cuellar in 1991: We are clearly witnessing what is probably an irresistible shift in public attitudes towards the belief that the defense of the oppressed in the name of morality should prevail over frontiers and legal documents.4 A Washington think tank went further. “The concept of sovereignty today,” it said, “was more understood in terms of conferring responsibilities on governments to assist and protect persons residing on their territories.” When governments “refused to acquiesce and invoked sovereignty as an excuse,” they “increasingly found themselves on moral ground difficult to defend.”5 There was “a new commitment,” asserted one legal scholar, to alleviate the suffering of endangered populations: To argue today that norms of sovereignty, non-use of force, and the sanctity of internal affairs are paramount to the collective human rights of people whose lives and well-being are at risk, is to avoid the hard question of international law and to ignore the march of history.6 Thus, when 192 heads of state endorsed the collective Responsibility to Protect (R2P) in 2005, it reflected an evolution in thinking. Sixty years after the adoption of the UN Charter, governments affirmed their readiness to take joint action to promote human rights: we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.7 It was the culmination of efforts not only by the human rights movement but by the humanitarian community, which regularly argued in the 1980s that respect for sovereignty had to be balanced with the equally compelling obligation to provide humanitarian assistance to persons at risk. Indeed, UN Security Council resolutions by the 1990s began to demand access for humanitarian aid agencies, deeming certain cases of mass starvation and gross human rights violations to be threats to international peace and security.8 This chapter will examine how both human rights and humanitarian imperatives contributed to transforming traditional notions of sovereignty, which led to the development of R2P.

The role of human rights The concept of human rights is far broader than the four grave crimes contained in R2P, but the defense of human rights over the years has chipped away at traditional notions of sovereignty and made collective action possible against governments committing genocide, war crimes, ethnic cleansing and crimes against humanity. In 1947 the UN Commission on Human Rights regularly affirmed that it had “no power to take any action in regard to any complaints concerning human rights.”9 In the 1950s and 1960s, efforts at the UN to discuss or take action on violations were rejected as interference in internal 8

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affairs – with the exception of apartheid in southern Africa and then, after 1967, the Israeloccupied territories in the Middle East. Both situations were seen as having an “international element,” that is, they could be a potential threat to international peace and security. When human rights NGOs or states tried to seek action at the UN on violations in other parts of the world, they confronted domestic jurisdiction arguments. Even when Secretary-General U Thant took the decision in 1969 to issue a public statement deploring public executions of Jews in Baghdad, he was careful to recognize that this was “purely an internal affair,” and said that it is “far from my intention to bring this matter before any deliberative organ of the United Nations.”10 UN member states drafted major human rights treaties to prohibit serious abuses,11 but efforts to deal with actual human rights problems were discouraged. In 1959, the UN forbade from public circulation the communications received from NGOs or other private sources alleging violations of human rights in different countries.12 In 1968, Resolution 1296 threatened to expel NGOs from consultative status at the UN if they engaged in what were called “unsubstantiated or politically motivated acts against Member States of the United Nations.”13 The Soviet Union then pushed for the expulsion of human rights and Jewish organizations that were “casting aspersions on socialist countries and the developing countries of Asia and Africa” in violation of Article 2(7) of the Charter.14 No NGO was actually expelled from the UN, but the episode sent a chill through the NGO community about calling for UN action on human rights concerns in countries other than southern Africa or the Israel-occupied territories in the Middle East.15 But momentum in the development of human rights law and practice was stalled only temporarily. Already in 1967, the UN Economic and Social Council (ECOSOC) adopted a resolution authorizing the Commission on Human Rights and its Sub-Commission to make thorough studies of situations of “gross violations” in particular countries, “as exemplified by the policy of apartheid” (a phrase added to restrict the scope of the resolution).16 The Sub-Commission nonetheless brought forward the cases of Greece and Haiti, and debates ensued about the human rights situation in those countries. Although the Commission in the end rejected taking any action,17 it was a definite beginning. In 1970, ECOSOC adopted a procedure (known as the ‘1503 procedure’) that allowed the Commission and Sub-Commission to examine communications – albeit in confidential session – filed by individuals and NGOs that demonstrated “a consistent pattern of gross violations of human rights” in member states.18 In 1975, there was a breakthrough in the public arena. The Commission created an ad hoc working group on human rights in Chile, and appointed a rapporteur in 1979 to conduct on-site investigations in the country.19 This marked the beginning of collective public action in the 1980s and 1990s against a range of countries committing serious human rights violations.20 By 2006, the Human Rights Council (the successor body to the Commission) was able to adopt the undertaking of a universal periodic review of the human rights of all UN member states.21 Clearly an evolution in thinking was in progress from a strictly state-centered system in which sovereignty was absolute to one in which the behavior of states toward their own citizens became a matter of international concern and scrutiny. Where initially it was considered intervention in internal affairs to even mention the name of a country violating human rights other than in the two situations noted above, by the 1970s, other countries could be named. Thereafter it became accepted practice to collectively adopt resolutions on the human rights records of violating states, to appoint rapporteurs to make visits to and issue reports on particular countries and to negotiate with governments to help reform their laws and practices. By the early 1990s it became accepted practice to actually station human rights monitors within particular countries to investigate human rights conditions, deter human rights abuse and help governments improve their performance. To be sure, Article 2(7) was invoked each time new and stronger 9

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human rights machinery was proposed, but notions of sovereignty and intervention underwent transformation. The deployment of human rights monitors and also election monitors was no longer perceived as intervention but an accepted part of international human rights practice.22 Military and economic sanctions against South Africa together with regional human rights action (of the Organization of American States, the European Commission and Court of Human Rights, the African Commission on Human and Peoples’ Rights and the Helsinki process) demonstrated growing collective efforts on behalf of human rights. Recognition of the obligation of states to take joint and separate action to promote respect for human rights, as set forth in Articles 55 and 56 of the Charter, gained ground and began to create a foundation for the development of R2P.

The Carter administration US President Jimmy Carter, who came into office in 1977 on a human rights platform, reinforced this trend. “No member of the United Nations,” he told the UN General Assembly “can claim that mistreatment of its citizens is solely its own business.”23 The US, he argued, had both a “legal right” and responsibility under the UN Charter and international law to speak out against human rights violations in other states. “All the signatories of the United Nations Charter,” affirmed Carter, “have pledged themselves to observe and to respect basic human rights.”24 Sovereignty, administration officials went on to emphasize, involved “accountability and responsibility on the part of governments to their citizens.” Sovereignty, according to the Carter administration, had limits when it came to gross violations of human rights: … no nation in the world today can hide politically-sanctioned abductions and murders, torture, or other gross violations of human rights behind assertions of sovereignty. Where basic human rights are concerned, all governments are accountable not only to their citizens but to the entire community of nations.25 In meeting with foreign governments, Carter administration officials regularly emphasized that it was the responsibility of governments first and foremost to protect the human rights of their citizens in accordance with national and international human rights standards. But if they failed to do so, the United States had a right and a responsibility to act on the basis of its laws and international commitments. Taking action meant a series of calibrated steps from diplomatic intercessions to military and economic aid cutoffs. Secretary of State Cyrus Vance explained the Carter human rights policy as follows: It is not our purpose to intervene in the internal affairs of other countries, but as the President has emphasized, no member of the United Nations can claim that violation of internationally protected human rights is solely its own affair. … If we are determined to act, the means available range from quiet diplomacy in its many forms, through public pronouncements, to withholding of assistance.26 The Carter human rights policy, like R2P later, placed primary responsibility on the state to protect the human rights of its population and encouraged states to do so (“Whenever possible, we will use positive steps of encouragement and inducement”27). If states failed in that obligation, the US was prepared to take steps to promote observance of human rights. Although military intervention to prevent or halt mass atrocities was not part of the Carter human rights policy, persistent diplomacy, public pronouncements, economic sanctions and reductions or cutoffs of 10

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military assistance did strongly reinforce the view that human rights were a legitimate subject of international concern, and that states had a responsibility to act alone or in concert with others to protect and promote them. Although the Carter administration sought to act in cooperation with others at multilateral and regional organizations,28 the policy was basically a unilateral one. It did not focus on a collective responsibility to act should states fail to protect their citizens from mass atrocities and did not take steps to halt the massive human rights violations in Cambodia. However, it strongly contributed to eroding the domestic jurisdiction argument, to redefining sovereignty as a form of responsibility to one’s citizens, to promoting international pressure on behalf of human rights and to demonstrating willingness to subject violating states to a range of penalties.29

The humanitarian imperative In the humanitarian arena, efforts at gaining access to people at risk helped transform traditional notions of sovereignty and also contributed to the development and acceptance of R2P. During most of the Cold War, borders were treated largely as sacrosanct with concepts of non-interference in internal affairs often overriding most collective efforts to protect and assist people inside their countries. To be sure, the International Committee of the Red Cross had a special mandate to protect civilians in armed conflicts and beginning in the 1970s could explicitly act in non-international armed conflicts. The UN High Commissioner for Refugees (UNHCR) also began in the 1970s on a selective basis to assist people forcibly displaced inside their own countries at the request of the General Assembly or Secretary-General. There were NGOs like Médecins Sans Frontières, whose very name stood for transcendence over frontiers, that called for primacy to be given to humanitarian action. But by and large deference to traditional notions of sovereignty prohibited a strong international role in defense of persons at risk inside their countries. Thus in 1988, international organizations and NGOs basically stood by while nearly a quarter of a million people died for lack of food and emergency supplies in Sudan.30 The Sudanese government repeatedly invoked state sovereignty to keep humanitarian agencies at bay. “We were so riveted on the problem of sovereignty,” one donor commented, even though “a country’s sovereignty doesn’t give it the right to do what was happening in the Sudan.”31 Yet collective efforts to assist and protect persons inside their own countries began to gain ground. Hard diplomatic bargaining with the government of Ethiopia in 1985 helped bring in international aid to those starving as a result of famine and civil war, although hundreds of thousands of people died.32 Donor governments and NGOs also undertook cross-border operations when the Ethiopian government obstructed aid to civilians behind insurgent lines.33 In Sudan too, cross-border operations began to be relied upon to reach civilians in insurgentheld areas. International agencies, donor governments and NGOs began to argue that providing access was part of a state’s responsibility.34 The Geneva Conventions, they pointed out, based on well-accepted principles, obliged states to allow the passage of humanitarian aid. Humanitarian cease-fires, humanitarian corridors and open relief centers were further introduced as part of the international community’s obligation to assist populations at risk. Secretary-General Perez de Cuellar cautiously called it “not the right of intervention but the collective obligation of states to bring relief and redress in human rights emergencies.”35 This collective obligation to reach people in need was also evidenced in the UN’s negotiation of Operation Lifeline Sudan (OLS) in 1989 with the Sudanese government and rebel forces. As a result, UN agencies and NGOs could bring in food, medicines and supplies throughout the country, not just into government-controlled areas.36 The OLS framework was described as one in which “the warring parties conceded the principle that civilians caught in conflict have a 11

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right to humanitarian assistance and that the international community has a right to provide it.”37 The UN General Assembly’s 1991 resolution on humanitarian assistance also provided that humanitarian assistance would be given with the consent of the affected country, but not necessarily at its request, as had been the case in the past; indeed, the resolution suggested that there may be times when the UN would take the initiative.38 UNHCR in 1993 described “sovereignty” as involving “a responsibility to meet the population’s needs or else allow the international community to assist.”39 Jan Eliasson, the under-secretary-general for humanitarian affairs, explained that “the consensus in the international community appears to be gradually moving in a new direction … it is basically a question of striking a balance between sovereignty and solidarity with people in need.”40 In some cases, humanitarian advocates sought to gain primacy for humanitarian organizations over state sovereignty. France’s Minister of Humanitarian Affairs Bernard Kouchner spoke of a right to humanitarian intervention (“le droit d’ingerence”),41 and in 1991 in Iraq, Western military forces launched an international relief effort to help hundreds of thousands of Kurds displaced in the north of the country without securing Iraqi government agreement. Western governments based their actions on Security Council Resolution 688, which demanded that the Iraqi government allow immediate access by humanitarian organizations.42 Subsequent Security Council resolutions on other countries also insisted that they allow access for humanitarian aid and sometimes threatened collective force to reach populations at risk.43 In most instances, however, government consent was considered essential to humanitarian action. Even in the case of Iraq, the UN insisted on signing an agreement with Saddam Hussein’s government authorizing the establishment of “humanitarian centres” in the north.44 In UNHCR’s view, “Protection and assistance efforts are more likely to succeed with the co-operation, or at least the consent, of affected governments.”45 Yet, invocations of sovereignty to justify the obstruction or denial of relief assistance to persons at risk were no longer accepted. When people were found to be starving, some form of international humanitarian involvement was expected. Civilians were increasingly seen as having rights and claims on the international community, and outside aid agencies as having the responsibility to assist them. Governments systematically flouting their humanitarian obligations were seen as calling their own legitimacy into question.

International protection for internally displaced persons Nowhere was the effort to redefine sovereignty as a form of state responsibility and to promote a collective responsibility to protect more evident than in the case of internally displaced persons (IDPs). The explosion of civil wars emanating from and following the Cold War brought in their wake millions of IDPs with limited or no access to food, medicine or shelter and vulnerable to all manner of human rights abuse. In the absence of assistance or protection from their own governments, they looked to the international community for help. Yet the international system set up after the Second World War focused almost exclusively on refugees – persons who fled across borders to escape persecution. The 1951 Refugee Convention and UN High Commissioner for Refugees (UNHCR) provided international protection only to people who were outside their countries of origin and deprived of the protection of their own governments. A deliberate decision had been taken at the time the Refugee Convention was drafted to provide international protection only to those who were outside their countries and in need of substitute legal protection. This deference to sovereignty cost lives. During the Biafra civil war in the 1960s, when countless IDPs and other civilians were subject to atrocities and starvation, the High Commissioner for Refugees explained: “my office is not in a position to deal with situations affecting nationals who find themselves within a territory of their country.”46 12

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It was not until the 1990s that this gap in treatment between refugees and IDPs began to be challenged and the international community began in a concerted way to try to assist and protect people uprooted inside their countries. There were many reasons,47 but the essential ingredient needed to ensure the willingness of the international community to become involved with IDPs was the changing notion of sovereignty. Many of the debates over whether the international community had a responsibility to protect people inside their countries originated from the gap in the international system, which provided international protection to refugees but largely left IDPs to the care of their own governments. In her memoirs, Sadako Ogata, the UN High Commissioner for Refugees, agonized in 1991 over the extent to which the mandate of UNHCR could be stretched. In being confronted with IDPs on the ground, she asked herself: Should we follow the legal dictate of not exercising our mandate inside the border and thereby refrain from helping those prevented from crossing or should we stand more on realistic humanitarian grounds and extend whatever support we could?48 Ogata chose the humanitarian course and UNHCR, despite its refugee mandate, protected displaced Kurds inside Iraq in the safe haven created by a US-led coalition; and in the former Yugoslavia, UNHCR became the lead agency on the ground for refugees, IDPs and other affected populations. The UN General Assembly and Security Council backed UNHCR’s actions, reinforced by the warning of UN Emergency Relief Coordinator Sergio Vieira de Mello that helping refugees but not others in an emergency could produce “second class victims” and spawn more conflict. He called upon the Security Council “to alleviate the suffering of innocent people throughout the world irrespective of their location.”49 Even earlier the Refugee Policy Group (RPG), a small think tank in Washington, DC, and a pioneer in the field of internal displacement, called upon the international community to assume responsibility for IDPs when their own governments were unable or unwilling to do so.50 RPG told a special meeting of delegates to the UN Commission on Human Rights in 1990 that they must address what should happen when governments do not meet their responsibilities to internally displaced people. The U.N. can not assign responsibility for the protection of such people to the very authorities that may have been the cause of their problems. The fact that they are displaced internally does not mean that the international community does not have a major responsibility to protect them [emphasis added].51 In 1991, RPG convened the first international conference on human rights protection for internally displaced persons. The meeting called for the development of an “effective international system” to protect IDPs and pointed out that the UN response to internal displacement thus far focused too heavily on providing food, medicine and shelter to the displaced.52 “Although recently the United Nations has begun to address the relief needs of internally displaced people, the international community has been slow to recognize that they also need human rights protection,” its letter of invitation asserted.53 RPG argued that United Nations mechanisms to coordinate assistance to IDPs would prove ineffective unless there were comparable measures to protect the human rights of those displaced. To overcome the constraints posed by sovereignty, RPG emphasized that “[s]overeignty carries with it a responsibility on the part of governments to protect their citizens.”54 13

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To encourage governments to meet the needs of their populations, it was necessary to build on this responsibility. The RPG conference called for the appointment of a dedicated UN official on internally displaced persons to promote the protection and human rights dimension of the problem, and subsequently a group of NGOs succeeded in mobilizing the Commission on Human Rights to request the UN Secretary-General to appoint a Representative on Internally Displaced Persons.55

Sovereignty as responsibility Following his appointment as Representative of the Secretary-General on Internally Displaced Persons in 1992, Francis M. Deng, a Sudanese diplomat and scholar, began to develop a conceptual and legal framework for the international protection of IDPs. He considered the concept of sovereignty as responsibility the most appropriate protection framework for people displaced inside their countries. Although the concept has “long historical antecedents in both Western and non-Western political thought and doctrine,”56 its newer formulation and application arose from the extensive work done earlier by Deng and other scholars on Africa at the Brookings Institution57 and from the work of RPG on the protection of IDPs.58 The concept of sovereignty as responsibility posited primary responsibility for the welfare and safety of IDPs with their governments. This meant accountability on the part of governments to both their domestic constituency and the international community in the form of adherence to international human rights and humanitarian standards.59 When governments were unable to fulfill their responsibilities or provide basic food, medicine, shelter and security, they were expected to request and accept offers of aid from the international community. However, if they refused or deliberately obstructed access and put large numbers at risk, the international community had a right and even a responsibility to express its concern by taking a series of calibrated steps. These ranged from “diplomatic demarches to political pressures, sanctions, or, as a last resort, military intervention.”60 A state’s failure to provide protection and life-supporting assistance served to “legitimize the involvement of the international community.”61 In his negotiations with governments, Deng articulated that responsibility was fundamental to sovereignty: I go on to explain politely, but affirmatively, that I don’t interpret sovereignty negatively. Sovereignty is not a way of closing doors against the international community … sovereignty is to me a positive concept, which stipulates state responsibility to provide protection and assistance for its people … the best way to protect sovereignty is to discharge the responsibilities of sovereignty and to call on the international community to assist in carrying out these responsibilities.62 Deng reiterated this theme in many of his reports: The Government of a State that acts in good faith will attempt to protect and provide life-sustaining protection and assistance to its internally displaced citizens, and if the magnitude of the problem exceeds its capabilities, it will call on the international community to perform these humanitarian functions. If, however, a Government is unable or unwilling to provide these services and does not request, or rejects an offer of, humanitarian relief from competent external organizations … the international community may have the responsibility to hold States accountable and may even be 14

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called upon to provide the needed assistance and protection to the internally displaced.63 Over the period of a decade, Deng built international support for the concept of sovereignty as responsibility while making it the basis of the legal framework for IDPs, the Guiding Principles on Internal Displacement,64 which he introduced into the UN in 1998. In setting forth the rights of IDPs and the responsibilities of governments and international organizations toward these populations, the Principles affirm that primary responsibility for displaced populations rests with their governments (Principles 3, 25/1). But if governments are unable to provide life-supporting protection and assistance, they are expected to request assistance from the international community. Offers of aid are not to be regarded “as an unfriendly act or an interference in a State’s internal affairs,” nor shall they be “arbitrarily withheld” when authorities are “unable or unwilling” to provide the required assistance (Principle 25/2). Although the Principles do not explicitly state that international aid can be provided without the consent of the affected country, the obligation imposed on states by humanitarian and human rights law to refrain from refusing reasonable offers of international assistance makes it difficult to dispute the existence of a duty to accept such offers.65 In his Annotations to the Guiding Principles, Walter Kalin, who succeeded Deng as Representative of the Secretary-General, affirmed that when states refuse reasonable offers of international aid and lives are at stake, such refusal constitutes arbitrariness and an impediment to the right to life.66 The Principles further emphasize that in providing assistance, international humanitarian organizations should pay attention to the “protection needs and human rights” of IDPs and “take appropriate measures” in this regard (Principle 27). IDPs therefore must have access not only to material assistance from the international community but also to protection from violence and abuse when governments fail to provide these to its citizens. In adopting the World Summit Outcome document in 2005, heads of state recognized the Guiding Principles as “an important international framework for the protection of internally displaced persons.”67 Sovereignty as responsibility, the conceptual foundation of the Principles, became an important antecedent to R2P by placing primary responsibility on the state to protect its own population and calling on the international community to support states in discharging that responsibility.68 R2P basically repeated that formulation, but in shifting responsibility to the international community when states failed in their obligations, it set forth an international responsibility to take “collective action” when people are threatened by genocide, war crimes, ethnic cleansing and crimes against humanity. Such action can include “diplomatic, humanitarian, and other peaceful means,” to be followed if necessary by the use of force on a case-by-case basis under Chapter VII of the UN Charter.69 R2P also included a responsibility to prevent and a responsibility to rebuild. States are supposed to take preventive actions against genocide, war crimes, ethnic cleansing and crimes against humanity and the international community is supposed to help them do so. This framework reflects the Guiding Principles, which begin with preventive steps to avert displacement, continue with measures to protect and assist IDPs, and conclude with solutions, namely the return, resettlement and reintegration of IDPs.70 As UN Secretary-General Ban Ki-moon later observed, the responsibility to protect “grows from the positive and affirmative notion of sovereignty as responsibility, rather than from the narrower idea of humanitarian intervention.”71 R2P, according to an IDP expert, built upon and benefited from “the consensus forged around the conceptual framework introduced and applied by Francis Deng to guide international efforts for the protection of IDPs.”72 15

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Since the victims of genocide, war crimes, ethnic cleansing and crimes against humanity are often IDPs, there is a natural convergence of interest between the protection of IDPs and the R2P concept. However, differences between the two concepts are also apparent. Protecting the rights of IDPs focuses on a broad range of civil, political, economic, social and cultural rights, whereas R2P focuses exclusively on four major crimes. IDP protection also extends to those uprooted by natural disasters and development projects, which R2P is considered not to cover (although there have been disputes over whether R2P should extend to natural disasters).73 But the main difference between the concepts of R2P and sovereignty as responsibility has been over the extent to which military intervention is to be relied upon when national responsibility fails. The International Commission on Intervention and State Sovereignty, which developed R2P, said its goal was to reconcile sovereignty with non-consensual intervention for the purposes of human protection. Nonetheless, it pointed out that [b]y far the most controversial form of such intervention is military, and a great part of our report necessarily focuses on that … the Commission believes that the [UN] Charter’s strong bias against military intervention is not to be regarded as absolute when decisive action is required.74 R2P shifts the debate from the right of the international community “to intervene” to the responsibility of states to protect while invoking “collective action” when a state manifestly fails to provide protection for people threatened by the most grave human rights crimes.75 In identifying the four major crimes, R2P establishes the point at which international intervention becomes legitimate. Often, as a result, R2P has been mistakenly equated with military action, even though the actual concept also gives important weight to prevention and the responsibility to rebuild. UN Secretary-General Ban Ki-moon has repeatedly emphasized that R2P “could involve any of the broad range of tools available to the United Nations,” whether “pacific measures under Chapter VI of the Charter, coercive ones under Chapter VII, and/or collaboration with regional and sub-regional arrangements under Chapter VIII.”76 The Independent Commission also emphasized that narrowly focusing on “intervention,” which in any event should be reserved for “extreme cases,” would not adequately take into account the need for preventive effort or subsequent assistance.77 The concept of sovereignty as responsibility, however, while not precluding military action, was never explained in terms of non-consensual action. It was put forward to allay governmental fears that concerns about displaced people were but a pretext for international political or military intervention. Its main practical focus under Deng was to prevail upon states to observe international human rights standards and agree to accept international humanitarian involvement in the form of aid and protection measures. At the same time, if “the state has collapsed or the government is unwilling to invite or permit international involvement” and there is a high level of human suffering, Deng considered multilateral non-consensual action to be “a moral imperative.”78 No government has explicitly challenged the concept of sovereignty as responsibility, mainly because doing so would compel the government to argue that sovereignty allows a state to deny life-sustaining support to its citizens. At the same time, governments like China have insisted that no state should interfere in the internal affairs of another state in the name of humanitarian action.79 And for a few years, Egypt and Sudan raised objections to the Guiding Principles on Internal Displacement in the name of sovereignty. However, after a series of consultations led by Switzerland, these states changed their position and lent support to the Principles.80 African states were among the strongest champions of the Principles, and they went on to develop the first legally binding convention on IDPs, which sets forth regional and international action to 16

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reinforce state responsibilities toward the displaced.81 In the case of R2P, the African Union’s Constitutive Act of 2000 served as one of its foundations. It speaks of a collective right “to intervene in a Member State” in respect to “grave circumstances, namely war crimes, genocide, and crimes against humanity.”82 In some circumstances, it has been pointed out that “explicitly” linking R2P to internal displacement and the Guiding Principles “could risk confounding the latter with intervention in internal affairs and undermine the wide acceptance of the Principles that has been so carefully cultivated over the past decade.”83 IDP advocates have also expressed additional concerns about R2P, most notably its limited and selective application, the exclusion of natural disasters from its focus, and the tensions between R2P’s emphasis on human rights protection and humanitarian organizations’ need to gain access and avoid expulsion.84 Ineffective military action, moreover, on behalf of IDPs (undertaken prior to R2P) has also weakened confidence in reliance on the collective action that might be provided by R2P.85 But R2P is a new concept and it will take time to mobilize international support for it and build consensus around its meaning and application.86

Never again to atrocities It was the growing revulsion with the international failure to act when genocides and other serious crimes occurred that led UN Secretary-General Kofi Annan and other world leaders “to ask whether the United Nations and other international institutions should be exclusively focused on the security of States without regard to the safety of the people within them.”87 Annan and the others concluded that “human security” required attention in addition to state security and that it was no longer acceptable for sovereignty to be misused as “a shield for crimes against humanity.”88 While Annan acknowledged that sovereignty offers vital protection to small and weak states, the Secretary-General’s High-level Panel on Threats, Challenges and Change concluded that when states are not able or willing to meet their sovereign responsibilities to protect their own people, “some portion of those responsibilities should be taken up by the international community.”89 The Panel argued that genocidal acts or other atrocities could “properly be considered a threat to international security and as such provoke action by the Security Council.”90 Kofi Annan embraced R2P, as has his successor Ban Ki-moon.91

Conclusion For centuries, sovereignty and non-interference in internal affairs were considered the fundamental elements of the state system, exercising a stabilizing influence over international relations. It was only in the closing years of the twentieth century that they came to be seen as capable of producing holocausts and other humanitarian and human rights disasters when exercised in absolute terms. While continuing to recognize sovereignty as the basis for the international system, new thinking began to emphasize the responsibility of states to provide for the security and well-being of their populations and the obligation of the international community to become involved when governments fail in these responsibilities, putting large numbers at risk. The human rights and humanitarian communities played substantial roles in the development of this new thinking, as did those involved in promoting international protection for internally displaced persons. The International Commission on Intervention and State Sovereignty, initiated by the government of Canada and co-chaired by Gareth Evans and Mohamed Sahnoun, developed the actual concept of R2P. The result is an internationally recognized conceptual foundation for acting in the face of mass atrocities. 17

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At the same time, concepts of sovereignty as responsibility and R2P remain far ahead of international willingness and capacity to enforce them. While sub-Saharan African states and more recently some Arab states have become receptive to the idea that sovereignty has limits and that people at risk of mass atrocities should be protected, less readiness has been reflected in Asia where anti-colonialism and nationalism are stronger and where China’s emerging influence has largely defended Article 2 (7) of the Charter. As Western nations that support R2P in principle cannot always be relied upon in practice to call for its application, assuring action to protect persons inside their countries and holding governments to account will remain a major challenge for the twenty-first century.

Notes 1 Kofi A. Annan, ‘We the Peoples’: The Role of the United Nations in the Twenty-first Century, Millennium Report of the Secretary-General of the United Nations, UN Document A/54/2000, www.un.org/ millennium/sg/report/ch3.pdf (accessed 9 January 2012). 2 United Nations Charter, Articles 1(3), 55 and 56. 3 This language comes from UN Economic and Social Council Resolution 1235 (XLII), 6 June 1967, which authorized the Commission on Human Rights and its sub-body, the Sub-Commission on Prevention of Discrimination and Protection of Minorities, to make thorough studies of situations revealing a consistent pattern of violations; and UN Economic and Social Council Resolution 1503 (XXVIII), 27 May 1970, which established a communications procedure under which the Commission on Human Rights can consider, in confidential session, situations involving a consistent pattern of gross violations referred to it by its Sub-Commission that would first examine complaints made by individuals or organizations, also in confidential session. 4 UN Press Release, SG/SM/4560, 24 April 1991. 5 Refugee Policy Group, Human Rights Protection for Internally Displaced Persons: An International Conference June 24–25 1991, p. 7, http://repository.forcedmigration.org/pdf/?pid=fmo:3024 (accessed 9 January 2012). 6 David J. Scheffer, “Toward a Modern Doctrine of Humanitarian Intervention,” University of Toledo Law Review, Vol. 23, Winter 1992, p. 259, cited in Francis M. Deng, Protecting the Dispossessed, Washington, DC, Brookings Institution Press, 1993, pp. 14–15. 7 2005 World Summit Outcome, United Nations General Assembly Resolution, A/RES/60/1, 24 October 2005, Paragraph 139. 8 See, for example, UN Security Council Resolution 688 on Iraq, 5 April 1991 and Resolution 794 on Somalia, 3 December 1992. 9 United Nations, Report of the Economic Social Council on the First Session of the Commission on Human Rights, Lake Success, UN. Doc. E/259, 1947, cited in Roger S. Clark, “Human Rights Strategies of the 1960s Within the United Nations: A Tribute to the Late Kamleshwar Das,” Human Rights Quarterly, May 1999, p. 320. 10 Drew Middleton, “‘Moral Pressure’ by Big 4 Asked by Thant on Mideast,” New York Times, 29 January 1969, as cited in Clark, ibid., p. 332. 11 The International Convention on the Elimination of all forms of Racial Discrimination was adopted by the UN in 1965, and the International Covenants on Human Rights (International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights) were adopted in 1966. These treaties created monitoring bodies for the first time to review states’ compliance with their provisions, and the International Covenant on Civil and Political Rights and subsequent treaties also included complaints procedures so that individuals could complain to UN bodies and seek redress. 12 See UN Economic and Social Council Resolution 728F (XXVIII), 30 July 1959, as discussed in Clark, “Human Rights Strategies,” pp. 320–27; and Sidney Liskofsky, “The U.N. Reviews Its NGO System,” Reports on the Foreign Scene, No. 10, American Jewish Committee, January 1970, p. 4. In 1967, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, a subbody of the Commission on Human Rights, withdrew from a study on “Periodic Reports on Human Rights and Reports on Freedom of Information,” an annex containing NGO material on human rights conditions in particular states; see Roberta Cohen, “NGOs Under Attack” (internal memorandum on Sub-Commission on Prevention of Discrimination and Protection of Minorities Nineteenth Session – 4–23 January 1967, prepared for World Jewish Congress, on file with author).

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13 UN Economic and Social Council Resolution 1296 (XLIV), 13 May 1968. 14 See Tass, 9 August 1969 (reporting on Izvestia story of 9 August by Melor Sturua); and Joint Statement by the Representatives of Bulgaria and the Union of Soviet Socialist Republics, UN. Doc. E/4647, Annex II, 7 May 1969, p. 2. 15 William Korey, NGOs and the Universal Declaration of Human Rights, St. Martin’s Press, 1998, pp. 77–94, 139–43. 16 UN Economic and Social Council Resolution 1235 (XLII), 6 June 1967. 17 See Clark, “Human Rights Strategies,” pp. 323–24. 18 See UN Economic and Social Council Resolution 1235 (XLII), 6 June 1967, which authorized the Commission on Human Rights and its sub-body, the Sub-Commission on Prevention of Discrimination and Protection of Minorities, to make thorough studies of situations revealing a consistent pattern of violations; and UN Economic and Social Council Resolution 1503 (XXVIII), 27 May 1970, which established a communications procedure under which the Commission on Human Rights can consider, in confidential session, situations involving a consistent pattern of gross violations referred to it by its Sub-Commission, which would first examine complaints made by individuals or organizations, also in confidential session. 19 See UN Commission on Human Rights Resolution 8 (XXXI), 27 February 1975; and Resolution 11 (XXXV), 6 March 1979. 20 See Menno T. Kaminga, Inter-State Accountability for Violations of Human Rights, University of Pennsylvania Press, 1992, pp. 93–95, 98. 21 UN General Assembly Resolution 60/251, 15 March 2006. 22 See, for example, James L. Roush, “The El Salvador Accords: A Model for Peace Keeping Actions,” Peace in Action, 1997, www.promotingpeace.org/1985/1/roush.html (accessed 9 January 2012); and Larry Minear, Jeffrey Clark, Roberta Cohen, Dennis Gallagher, Iain Guest and Thomas G. Weiss, Humanitarian Action in the Former Yugoslavia: the U.N.’s Role 1991–1993, Thomas J. Watson Jr. Institute for International Studies and Refugee Policy Group, 1994, pp. 33–34, 130. 23 Transcript of President Carter’s Address at the United Nations, New York Times, 18 March 1977. 24 Ibid. 25 See, for example, Statement by Mark L. Schneider, on Missing Persons, before the UN General Assembly’s Third Committee, 1 December 1978 (Agenda Item 12; Report of the Economic and Social Council); Statement by Edward Mezvinsky before the UN Commission on Human Rights, US Mission to the United Nations, Geneva, 1979; and Notes prepared by Roberta Cohen for Carter administration officials on sovereignty (on file with the author). 26 Statement of Secretary of State Cyrus Vance, University of Georgia School of Law, 30 April 1977. 27 Ibid. 28 Ibid. Secretary Vance said: “We will always try to act in concert with other countries, through international bodies.” 29 See Roberta Cohen, “Human Rights Diplomacy: The Carter Administration and the Southern Cone,” Human Rights Quarterly, 1982, pp. 212–42; Roberta Cohen, “Human Rights Decision-Making in the Executive Branch: Some Proposals for a Coordinated Strategy,” Human Rights and American Foreign Policy, eds. D. P. Kommers and G. P. Loescher, Notre Dame, IN, University of Notre Dame Press, 1979. 30 See, for example, Raymond Bonner, “Famine,” New Yorker, 13 March 1989. 31 Julia Taft, director of USAID’s Office of Foreign Disaster Assistance, as quoted in Larry Minear, Humanitarianism under Siege: A Critical Review of Operation lifeline Sudan, Red Sea Press, 1991, p. 115. 32 David A. Korn, Ethiopia, the Soviet Union and the United States, Croom Helm, 1986, pp. 132–41. 33 Ibid. 34 See Minear, Humanitarianism Under Siege, pp. 114–17. 35 United Nations, Report of the Secretary-General on the Work of the Organization, New York, 1991, as quoted in UNHCR, The State of the World’s Refugees, Penguin Books, 1993, p. 75. 36 Minear, Humanitarianism under Siege, p. 120. 37 UN Office for the Coordination of Humanitarian Affairs, No Refuge: The Challenge of Internal Displacement, New York, United Nations, 2003, p. 68. 38 UN General Assembly Resolution, “Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations,” A/RES/46/182, 19 December 1991. 39 UNHCR, The State of the World’s Refugees, Penguin Books, 1993, p. 75. 40 Jan Eliasson, as quoted in Deng, Protecting the Dispossessed, p. 18.

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41 See Mario Bettati and Bernard Kouchner, Le devoir d’ingerence: peut-on les laisser mourir? Denoel, Paris, 1987; and Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All, Brookings Institution Press, 2008, pp. 32–33. 42 UN Security Council Resolution on Iraq, S/RES/688, 5 April 1991. 43 See Walter Kalin and Robert K. Goldman, “Legal Framework,” in Roberta Cohen and Francis M. Deng, Masses in Flight: The Global Crisis of Internal Displacement, Brookings Institution Press, 1998, pp. 118–20, 362–63, Note 200; and William G. O’Neill, A New Challenge for Peacekeepers; The Internally Displaced, Brookings-SAIS Project on Internal Displacement, April 2004, pp. 6–9, 24–39. 44 UN Office for the Coordination of Humanitarian Affairs, No Refuge, p. 16. 45 UNHCR, The State of the World’s Refugees, 1993, p. 74. 46 Adam Lichtenheld, From Exclusion to Expansion: Internally Displaced People and the Evolution of the International Refugee Rights Regime, Spring 2008 (unpublished Senior Honors Thesis, University of Wisconsin, on file with author). 47 Among the major reasons were the rise in number of IDPs (25 million by 1995, twice the number of refugees), their desperate need for assistance and protection, and the political and security consequences predicted if conflict and mass displacement were left unaddressed. International support for protecting people inside their countries also came from governments interested in preventing refugee flows. See Cohen and Deng, Masses in Flight, pp. 3–5, and Kofi Annan, Preface, in ibid., p. xix. 48 Sadako Ogata, The Turbulent Decade, W.W. Norton & Company, 2005, p. 38. 49 UN Office for the Coordination of Humanitarian Affairs, “Briefing of the Security Council on emergency situations outside the Federal Republic of Yugoslavia by Under-Secretary-General Sergio Vieira de Mello,” Inter-Office Memorandum, 3 June 1999. 50 Thomas G. Weiss and David A. Korn, Internal Displacement: Conceptualization and its Consequences, Routledge, 2006, pp. 17–29. 51 Roberta Cohen, Refugee Policy Group, “U.N. Human Rights Bodies Should Deal with the Internally Displaced,” Statement before delegates to the UN Commission on Human Rights organized by the Quaker UN Office and the World Council of Churches, Geneva, 7 February 1990. 52 See Refugee Policy Group, Human Rights Protection for Internally Displaced Persons; An International Conference; see also Roberta Cohen, “Human Rights Protection for Internally Displaced Persons,” Refugee Policy Group, June 1991 (background paper for the conference), http://repository.forcedmigration.org/pdf/?pid=fmo:727 (accessed 10 January 2012). 53 Refugee Policy Group, Letter of Invitation, 15 March 1991 (on file with author). 54 See Roberta Cohen, “Human Rights Protection for Internally Displaced Persons,” p. 17. 55 Weiss and Korn, Internal Displacement, pp. 17–29. 56 See Edward C. Luck, “The United Nations and the Responsibility to Protect,” Policy Analysis Brief, Stanley Foundation, August 2008, p. 2, cited in Erin D. Mooney, “Something Old, Something New, Something Borrowed … Something Blue? The Protection Potential of a Marriage of Concepts between R2P and IDP Protection,” Global Responsibility to Protect, Vol. 2, Nos 1–2, 2010, p. 78. See also Cohen and Deng, Masses in Flight, pp. 275–77. 57 See Deng, Protecting the Dispossessed, pp. 14–20; Francis M. Deng, “Reconciling Sovereignty with Responsibility: A Basis for International Humanitarian Action,” in John W. Harbeson and Donald Rothschild, eds., Africa in World Politics: Post Cold War Challenges, Westview Press, 1995; Francis M. Deng, “Frontiers of Sovereignty: A Framework of Protection, Assistance, and Development for the Internally Displaced,” Leiden Journal of International Law, Vol. 8, No. 2, 1995, pp. 249–86; and Francis M. Deng, Sadikiel Kimaro, Terrence Lyons, Donald Rothchild and I. William Zartman, Sovereignty as Responsibility: Conflict Management in Africa, Brookings Institution, 1996, pp. 2–19, 27–33. 58 See Cohen, “Human Rights Protection for Internally Displaced Persons,” pp. 16–19; and Roberta Cohen, Statement to International Journalists Round Table on Human Rights and the United Nations, United Nations, New York, 14–16 October 1991, which says that “sovereignty implies humanitarian and human rights obligations by governments to the persons residing on their territories.” See also Refugee Policy Group, Human Rights Protection for Internally Displaced Persons; An International Conference. 59 Cohen and Deng, Masses in Flight, p. 276. 60 Ibid., pp. 7, 275–77. 61 Ibid. See also Roberta Cohen and Francis M. Deng, “Exodus Within Borders,” Foreign Affairs, July–August 1998. 62 Francis M. Deng, cited in Weiss and Korn, Internal Displacement, p. 45.

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63 Francis M. Deng, Internally Displaced Persons, Report of the Representative of the Secretary-General, UN Doc. E/CN.4/1996/52, 22 February 1996, para. 34. See also Francis M. Deng, Report of the Representative of the Secretary-General, UN Doc. E/CN.4/1993/35, 21 January 1993, para. 151. 64 UN Commission on Human Rights, The Guiding Principles on Internal Displacement, UN Doc. E/CN.4/1998/53/Add.2, 11 February 1998. 65 Cohen and Deng, Masses in Flight, p. 277. 66 Walter Kalin, Guiding Principles on Internal Displacement: Annotations, American Society of International Law and Brookings Institution Project on Internal Displacement, 2000, pp. 64–65. 67 World Summit Outcome, para. 132. 68 See Evans, The Responsibility to Protect, pp. 35–37; see also the International Commission on Intervention and State Sovereignty, The Responsibility to Protect, International Development Research Centre, December 2001, pp. 8, 13. 69 Annan, ‘We the Peoples’. 70 See the Guiding Principles on Internal Displacement, and Deng, Internally Displaced Persons, Report of the Representative of the Secretary-General, 1996, paras 65–80. 71 UN General Assembly, Report of the UN Secretary-General, Implementing the Responsibility to Protect, UN Doc. A/63/677, 12 January 2009, p. 7. 72 Mooney, “Something Old, Something New,” p. 73. 73 For the debate over whether R2P should cover natural disasters, see Roberta Cohen, “Reconciling R2P with IDP Protection,” Global Responsibility to Protect, Vol. 2, Nos 1–2, 2010, pp. 25–26, 34. 74 International Commission on Intervention and State Sovereignty, The Responsibility to Protect, pp. 2, 8, 16. The International Commission was set up at the initiative of the Canadian government. See also Alex J. Bellamy, “The Responsibility to Protect and the Problem of Military Intervention,” International Affairs, Vol. 24, No. 4, July 2008, pp. 615–39. 75 See UN General Assembly, Report of the UN Secretary-General, p. 9. 76 Ibid., p. 9. 77 International Commission on Intervention and State Sovereignty, The Responsibility to Protect, pp. 16, 18. 78 See Deng, Protecting the Dispossessed, p. 20; and Deng et al., Sovereignty as Responsibility, pp. xxii–xxiii. 79 UN Office for the Coordination of Humanitarian Affairs, No Refuge, p. 47. 80 See Roberta Cohen, “The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting,” Global Governance, Vol. 10, No. 4, Oct–Dec 2004, pp. 472–75, 477. 81 African Union, Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), 2009. 82 African Union, Constitutive Act, Article 4 (h). See also the Stanley Foundation, “The Responsibility to Protect and Foreign Policy in the Next Administration,” Policy Dialogue Brief, October 2008, p. 3. 83 See Erin D. Mooney, “The Guiding Principles and the Responsibility to Protect,” Forced Migration Review, Special Issue GP10, December 2008, p. 13. 84 See Cohen, “Reconciling R2P with IDP Protection,” pp. 21–30, and Mooney, “Something Old, Something New,” pp. 78–85. 85 Cohen, “Reconciling R2P with IDP Protection,” pp. 29–30; see also Jeffrey Gettleman, “4-Day Frenzy of Rape in Congo Reveals U.N. Troops’ Weakness,” New York Times, 4 October 2010. 86 Dialogues with states about R2P have regularly been held to try to iron out problems with the concept. See, for example, Global Centre for the Responsibility to Protect, “‘Early Warning, Assessment, and the Responsibility to Protect’: Informal Interactive Dialogue of the General Assembly held on 9 August 2010,” September 2010. 87 UN General Assembly, Report of the UN Secretary-General, p. 5. 88 Kofi Annan, Statement to the UN General Assembly, “We the Peoples: The Role of the United Nations in the 21st Century,” 3 April 2000. 89 United Nations, Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, “A more secure world: Our shared responsibility,” 2005, p. 17 (para. 29). 90 Ibid., p. 65 (para. 200). 91 See UN General Assembly, Report of the Secretary-General, In Larger Freedom: Toward Development, Security and Human Rights for All, UN Doc. A/59/2005, 21 March 2005, para. 135 and Annex, para. 7 (b); and UN General Assembly, Report of the UN Secretary-General, Implementing the Responsibility to Protect.

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2 THE RESPONSIBILITY TO PREVENT Toward a strategy Lawrence Woocher

Introduction In discussions of mass violence and atrocities against civilians, the many benefits of prevention are so frequently acknowledged, they hardly need explicating. Prevention is repeatedly heralded as the most important aspect of the Responsibility to Protect (R2P), and yet until recently surprisingly little of the scholarship or political discourse on R2P has focused on prevention. The very appeal of the concept, in fact, can obscure our ability to understand why a notion with such powerful logic is so difficult in practice. To summarize, preventing the kinds of extreme violence associated with the R2P concept is preferable to reaction in three principal domains: Morality: The R2P principle was spawned because of repeated occurrences of heinous, massive and systematic attacks on innocent civilians, such as those that took place in Rwanda and Srebrenica in the mid-1990s. Finding ways to prevent the shattering and loss of life that mass atrocities wreak is clearly the optimal approach. If R2P were to improve only the ability of the world to react to these preventable crimes once they are underway, it would represent incomplete progress, especially from a moral perspective. Politics: Few debates in international politics have been more contentious than the ones surrounding the legitimacy of “humanitarian intervention.” The extraterritorial use of force without the consent of a host government raises fundamental concerns about the sovereignty and political independence of states—issues at the very heart of the international system. The idea that the kinds of violent episodes that lead to calls for military intervention could be prevented at an earlier stage, through non-coercive action, is extremely appealing. It attracts those who fear that force may be used unjustly as well as those who worry they may be called on to deploy force to protect civilians under attack. Moreover, averting massive humanitarian crises helps preserve regional and global stability, an interest that most governments share.1 Cost: Military intervention is extremely costly. Rebuilding after major episodes of violence requires large investments over years if not decades. Preventive action, in comparison, can be quite inexpensive. Studies that have tried to systematically analyze the cost-effectiveness of 22

The Responsibility to Prevent

conflict prevention find “strong evidence” in its favor,2 and in some cases “truly staggering” differences between costs of preventive actions and the costs of conflicts themselves.3 The cost-effectiveness argument for R2P prevention should be all the more compelling in the current environment of increasing fiscal conservatism. Yet, numerous basic questions remain about the preventive dimension of R2P, or the “responsibility to prevent.” What exactly does the responsibility to prevent call on the international community to prevent? Who bears this responsibility? What does a preventive strategy in the context of R2P entail? What is new or different about an R2P prevention strategy? More than the reaction and rebuilding aspects of R2P, the responsibility to prevent is notable in the gap between the extent of rhetorical support and serious analysis of its meaning and implications.4 This chapter begins by tracing the roots and evolution of the responsibility to prevent. Then it discusses the shape and content of an R2P prevention strategy. This section analyzes the relationship between R2P prevention and other existing international agendas, particularly the prevention of armed conflict. Based on conceptual and empirical analysis, it concludes by describing three distinct but complementary approaches to operationalizing the responsibility to prevent.

Prevention in the development of and discourse about R2P The UN Charter and the prevention of armed conflict Foundations of an international “responsibility to prevent” can be found as far back as the 1945 UN Charter. In Chapter V of the Charter, member states confer “primary responsibility for the maintenance of international peace and security” to the Security Council.5 The nature of this “responsibility” is not elaborated on directly, except that its exercise shall be “in accordance with the Purposes and Principles of the United Nations.”6 Most salient is the first purpose, which refers to “effective collective measures for the prevention … of threats to the peace” and “international disputes or situations which might lead to a breach of the peace.”7 It can be argued, therefore, that the UN Charter places on the Security Council a responsibility to prevent threats to the peace.8 Furthermore, the Charter can be understood to extend this responsibility to all member states. Article 2(5) states: All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.9 Thus, every member state can be seen as having a responsibility from the Charter to support the UN Security Council in fulfilling its responsibility to prevent threats to the peace. General Assembly and Security Council resolutions regarding the prevention of armed conflict reinforce the Charter’s responsibility to prevent. In 2003, the General Assembly adopted a resolution on the prevention of armed conflict, inter alia, reaffirming “the primary responsibility of Member States” for this task.10 The Security Council, in Resolution 1366 (2001), reiterated that “conflict prevention is one of the primary responsibilities of Member States” and stressed “the fundamental responsibility of Member States to prevent and end impunity for genocide, crimes against humanity and war crimes.” Resolution 1366 reinforced the argument from the Charter of a two-fold responsibility to prevent, stressing that “essential responsibility for conflict 23

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prevention rests with national Governments, and that the United Nations and the international community can play an important role in support of national efforts.” Adopted in August 2001, this resolution presaged many of the elements of the responsibility to prevent that would be articulated by the International Commission on Intervention and State Sovereignty (ICISS) just weeks later.

The International Commission on Intervention and State Sovereignty and the “responsibility to prevent” In December 2001 the ICISS released its final report, The Responsibility to Protect—the most influential unofficial document articulating the R2P concept. The report declared, in bold-faced type in the synopsis: “Prevention is the single most important dimension of the responsibility to protect.” It devoted a chapter to “The Responsibility to Prevent,” which described what the Commission meant by prevention and how it fits into the broader concept of R2P. Conceptually, two things stand out in the Commission’s discussion of prevention. First, the ICISS links the “responsibility to prevent” to the prevention of violent conflict, rather than the prevention of mass atrocities per se.11 Throughout the chapter, the Commission discusses “conflict prevention” (which garners more than 20 separate mentions), rather than “genocide prevention,” “mass atrocity prevention” or the like. In one instance the report refers to “prevention of deadly conflict and other forms of man-made catastrophe,”12 in another to the “prevention of conflict, and the related sources of human misery with which this report is concerned.”13 Nowhere does the Commission suggest that the responsibility to prevent is about mass violence against civilians rather than violent conflict writ large. In fact, the report finds: in the context of the responsibility to protect, improving conflict prevention at every level – conceptually, strategically and operationally – is urgent and essential. Encouraging more serious and sustained efforts to address the root cause of problems that put populations at risk, as well as more effective use of direct prevention measures, is a key objective of the Commission’s efforts.14 Second, the type and range of measures offered as means to operationalize the responsibility to prevent is quite extensive. The Commission describes a “toolbox” virtually overflowing with actions that could potentially be used for “root cause” or “direct” prevention efforts, organized into political/diplomatic, economic, legal, and military categories. These include, inter alia, building democratic institutions, mediation, development assistance to promote growth and reduce inequalities, promising more favorable trade terms, strengthening the rule of law and minority rights protections, threatening criminal prosecution, military reconnaissance, and reintegration of ex-combatants. A number of commentators have criticized the ICISS discussion of the responsibility to prevent for bringing little new to previous discussions of conflict prevention and failing to identify priorities within this sprawling agenda for preventing mass violence against civilians.15 The Commission’s choices in this domain could have resulted from sloppiness or lack of creativity, as critics suggest, or from a genuine belief that conflicts are at the root of nearly all mass atrocity situations and that the prevention agenda must be expansive.16 Indeed, the chapter on the responsibility to prevent concludes by declaring: “Without a genuine commitment to conflict prevention at all levels – without new energy and momentum being devoted to the task – the world will continue to witness the needless slaughter of our fellow human beings.”17 24

The Responsibility to Prevent

The High-Level Panel on Threats, Challenges and Change In anticipation of the sixtieth session of the UN General Assembly, Secretary-General Kofi Annan commissioned a panel of former heads of state, senior diplomats, and other eminent figures to help guide the UN toward a new consensus on collective security. The Panel’s final report, A More Secure World: Our Shared Responsibility, was organized around “clusters of threats,” including poverty, disease, environmental degradation, and transnational organized crime as well as inter- and intra-state conflict, weapons of mass destruction, and terrorism. For each, the report discussed how to meet “the challenge of prevention.” While endorsing R2P in general, the High-Level Panel (HLP) alluded to ICISS’s tripartite responsibility (prevent, react, and rebuild) obliquely, saying that R2P spans “a continuum involving prevention, response to violence, if necessary, and rebuilding shattered societies.”18 The HLP did not elaborate on what it meant by R2P “spanning a continuum” including prevention. Most of the paragraphs that discuss R2P focus on response and especially on the controversial issue of military intervention. The Panel wrote: “The primary focus should be on assisting the cessation of violence”19 via non-violent means; the ICISS’s strong priority on prevention of violence is absent from the HLP’s discussion of R2P. One has to look to an earlier section of the HLP report discussing intra-state conflict to find a statement that relates to the responsibility to prevent: “The large loss of life in such wars and outbreaks of mass violence obliges the international community to be more vigilant in preventing them.”20

Kofi Annan’s In Larger Freedom and Action Plan to Prevent Genocide Secretary-General Annan prepared a report for member states entitled In Larger Freedom (ILF) outlining his priorities and recommendations for the 2005 World Summit of heads of state and government. Annan’s report endorsed R2P,21 but did not recapitulate or even allude to the three distinct responsibilities of prevention, reaction, and rebuilding from the ICISS report. One can find hints elsewhere about Annan’s views on whether R2P implies a responsibility to prevent, and if so, what this means. When first citing R2P, he refers to “potential or actual victims of massive atrocities,”22 suggesting that R2P is about more than reacting to ongoing atrocities. He also wrote separately about the UN’s role in preventing deadly conflict, which he said “must be central to all our efforts”23 and cited his 2004 Action Plan to Prevent Genocide, which declared “preventing armed conflict” as the first of its five pillars. While not under the heading of a responsibility to prevent, Annan’s Action Plan to Prevent Genocide was wholly consistent with ICISS’s emphasis on preventing the conflicts that can lead to mass atrocities: “Genocide almost always occurs during war. … So one of the best ways to reduce the chances of genocide is to address the causes of conflict.24

The 2005 World Summit Outcome Document In light of the long and intense negotiations over the 2005 World Summit Outcome Document (WSOD), it is remarkable that R2P appeared in a recognizable form in Paragraphs 138–39. These sections include two allusions to the responsibility to prevent: Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means.25 25

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We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.26 The first of these statements can be interpreted to incorporate the entire concept of responsibility to prevent into the Summit’s adoption of R2P, though with virtually no elaboration on the idea. The second statement suggests that the responsibility to prevent might be accomplished via capacity building and assistance to states under stress. Importantly, it refers to situations “before crises and conflicts break out,” indicating that actions to implement R2P are applicable in a relatively wide range of contexts, not limited to “late prevention” in situations where violence has already erupted.

Ban Ki-moon’s Implementing the Responsibility to Protect Secretary-General Ban Ki-moon issued a report on Implementing the Responsibility to Protect in January 2009. He eschewed the tripartite responsibilities of the ICISS report, instead drawing heavily from the WSOD language, reorganizing it into “three pillars”: (1) “The protection responsibilities of the State”; (2) “International assistance and capacity-building”; and, (3) “Timely and decisive response.” “The strategy stresses the value of prevention,” according to Ban.27 “Prevention, building on pillars one and two, is a key ingredient for a successful strategy for the responsibility to protect,”28 the report declared. Yet, no conceptual framework for the preventive aspects of the three-pillar approach is apparent. Rather, the report lists numerous discrete actions under each pillar, many of which are relevant to prevention. “Because prevention begins at home,”29 the report identifies a series of steps under pillar one, such as “effective management, even encouragement, of diversity through the principle of nondiscrimination and the equal enjoyment of rights,”30 becoming party to relevant international treaties including the Rome Statute of the International Criminal Court,31 engaging in “Stateto-State learning processes” about human rights practice,32 “training, learning and education programmes,”33 and development of networks of survivors.34 Pillar two actions related to prevention include: “encouraging States to meet their obligation relating to the responsibility to protect … [through] confidential or public suasion, education, training and/or assistance,”35 communicating to potential perpetrators “both the costs of pursuing that path and the potential benefits of seeking peaceful reconciliation and development instead,”36 building civilian capacities of regional and subregional organizations,37 “consentbased deployment of an international military presence,”38 and development assistance that is “sensitive both to conflict and to the responsibility to protect.”39 The Secretary-General urges capacity building in five specific areas: conflict-sensitive development analysis, indigenous mediation capacity, consensus and dialogue, local dispute resolution capacity, and “capacity to replicate capacity.”40 The report also calls on the UN and member states to develop “impartial and disciplined” security sectors, to increase rule of law assistance, and to leverage the Peacebuilding Commission and the Peacebuilding Fund for “helping States to fulfill their obligations relating to the responsibility to protect.”41 The report includes an annex with a discussion of “early warning and assessment,” a subject that clearly relates to prevention. The annex is principally aimed inwards to the UN system—e.g., asking UN agencies to incorporate R2P perspectives into their regular reporting. 26

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Ban’s report takes pains to link every recommended action to genocide, crimes against humanity, war crimes, and ethnic cleansing—the four categories cited in relation to R2P in the 2005 WSOD. Repeatedly, the report refers to “crimes and violations relating to the responsibility to protect.” This departs from ICISS and Annan, which were unapologetic in arguing that preventing mass atrocities required a focus on the prevention of armed conflict. One can assume this reflects political sensitivities among member states about attempts to apply R2P to situations that went beyond the four crimes/violations in the 2005 WSOD and concern that interference in domestic affairs would be easier to justify on R2P grounds if the concept were explicitly linked to conflict prevention. As will be seen, however, this can constrain the development of a strategy for operationalizing the responsibility to prevent.

Defining an “R2P prevention” strategy Interest in a unique responsibility to prevent agenda As political debates have proceeded, supporters of R2P have begun to identify clarifying the responsibility to prevent as an important step toward operationalizing the concept as a whole. In particular, advocates of R2P seek to articulate more clearly the uniqueness of “R2P prevention” to distinguish it from other international agendas such as the prevention of armed conflict, the stabilization of fragile states, and the promotion of human rights. One notable expression of this point of view can be found in a “Blue Paper” from the International Peace Institute, which resulted from consultations between experts and diplomatic representatives to the UN. According to the report, “the lack of clarity as to what makes RtoP prevention distinct from conflict prevention is troubling.”42 While conflict prevention and the prevention of R2P crimes and violations “may overlap in many respects,” the report goes on, “conflating them analytically does not serve the cause of developing a clear framework for action on either.”43 There are several reasons why it might be important to demonstrate that R2P prevention is new in content or manner of implementation—or at least, clearly distinguishable from other existing work streams. First, conceptualizing R2P prevention as unique is consistent with the “narrow but deep” approach to the broader R2P agenda, as articulated by UN Secretary-General Ban in his 2009 report. “Narrow” means that R2P applies only to the four crimes and violations enumerated in the 2005 WSOD: genocide, war crimes, crimes against humanity, and ethnic cleansing. Since stretching the concept to apply to other phenomena has frayed political support, R2P advocates are keen to dispel impressions that R2P applies to anything other than the four enumerated crimes and violations. Thus, the preventive aspects of R2P should be tightly linked to these crimes.44 At the same time, the “deep” aspect of R2P is meant to emphasize that the concept relates to a wide range of measures to prevent and respond to instances of mass violence. Most importantly, “deep” means that R2P is not solely or even primarily about coercive intervention. The WSOD cites various means toward the peaceful settlement of disputes and coordination with regional arrangements by referencing Chapters VI and VIII of the UN Charter. The SG’s 2009 report discusses many more specific measures, as noted above. In sum, the focus the SG has placed on the “deep” aspects of R2P—for political as well as substantive reasons—brings the spotlight straight to the concept’s preventive aspects. Second, the desire for a concept of “R2P prevention” that is distinct from the prevention of armed conflict reflects the differences in international norms regulating armed conflict and genocide, crimes against humanity, war crimes and ethnic cleansing. Even before the 2005 WSOD, R2P crimes and violations were strictly proscribed in international law.45 Genocide is 27

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defined and outlawed in the Convention on the Prevention and Punishment of the Crime of Genocide, which boasts 141 states parties as of 2010.46 Moreover, the prohibition on genocide, war crimes, and crimes against humanity is considered not only customary international law, but jus cogens – i.e., a peremptory norm that cannot be derogated.47 Recent jurisprudence, furthermore, indicates that the Genocide Convention entails an affirmative obligation on a state party to “employ all means reasonably available to it, so as to prevent genocide as far as possible.”48 In contrast, states’s use of armed force remains legitimate – at least in some circumstances – according to international law. The UN Charter restricts the use of force across borders to situations of self-defense (individual or collective) or as sanctioned by the UN Security Council under Chapter VII. The Charter and other international legal instruments, in contrast, remain largely silent on the legality of states use of force within their own borders as long as it adheres to international humanitarian law and international human rights law. In short, the use of force is regulated by international law, whereas R2P crimes and violations are proscribed in all cases. Strategies for preventing armed conflict and R2P crimes/violations, therefore, should be distinct. Third, concerns about efficiency, focus, and feasibility contribute to the interest in developing a unique R2P prevention agenda. The considerable political support for R2P reflects a desire to eliminate the “worst of the worst” situations of violence against civilians. The eradication of all armed conflict, all serious human rights abuses, or all major violations of international humanitarian law would be a wildly over-ambitious goal. In contrast, the mass atrocities associated with R2P are relatively rare—e.g., on average fewer than two episodes of mass killing began each year since 1990.49 It seems within reach, to some at least, to find strategies to avert just these most conscience-shocking episodes. The related contention about efficiency is that since only a minority of armed conflicts result in genocide or related crimes, and some mass atrocities occur outside of armed conflict, an efficient R2P prevention strategy should diverge from approaches to preventing armed conflicts. The fourth and final impetus to developing a distinct R2P prevention approach is the strong tendency in international politics to associate new concepts with new action agendas. If R2P— including its preventive aspects—was spawned to address a problem that was being inadequately addressed by existing efforts to prevent armed conflicts, protect fundamental human rights, and promote adherence to international humanitarian law, then new actions must be required.50 Each new concept that is advertised as a solution to a longstanding challenge (e.g., sustainable development, gender mainstreaming, conflict sensitivity) must be accompanied by a seemingly new action agenda or risk being dismissed as nothing more than rhetorical tinkering or manipulation.

Conceptual and empirical analysis toward an R2P prevention strategy The points discussed above elucidate the strong interest, especially among R2P supporters, in articulating a distinct R2P prevention agenda. But political imperatives alone should not define what this R2P prevention agenda should actually entail. The common distinction between “root cause” or “structural” prevention on the one hand, and “direct” or “operational” prevention on the other, is a useful starting point in extending the conceptual and empirical analysis of the responsibility to prevent.

Direct or operational prevention In the context of R2P, direct or operational prevention can be understood as measures taken to dissuade specific, identified actors from committing mass atrocities and/or to reduce their ability 28

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to commit these crimes. This focus on potential perpetrators contrasts with direct prevention of armed conflict, which typically aims to shift the decision making of multiple potentially conflicting parties toward a consensual solution.51 Nevertheless, direct prevention is an approach that draws on the theory and practice of statecraft, and for R2P prevention, particularly on deterrence strategy. Deterrence has been defined as “persuasion of one’s opponent that the costs and/or risks of a given course of action he might take outweigh its benefits.”52 Direct R2P prevention strategies go beyond deterrence per se because they seek to wield influence by using positive inducements (“carrots”) as well as threats (“sticks”), and because they may include actions designed to reduce would-be perpetrators’ capabilities directly. The mantra of carrots and sticks provides little more guidance about the content of direct R2P prevention strategies than the “toolbox” metaphor. It must be emphasized, however, that the diversity of situations in which mass atrocities are threatened makes an overly prescriptive framework impossible. Categorizing direct prevention measures by the objective to which they contribute—dissuading decision makers and/or limiting their capabilities—is one way of linking tools to strategic objectives and therefore might be more helpful for developing a prevention strategy than categorization of tools by sector (i.e., political, economic, etc.). Table 2.1 illustrates this approach for selected tools that may be relevant to preventing mass atrocities. The direct prevention approach is appealing for its potential to achieve results relatively quickly and for the short chain of logic between actions taken and catastrophe averted. It is not without challenges, however. First, direct prevention of R2P crimes/violations is almost inherently “late” since it relies on a judgment that an identifiable actor—most frequently a government—risks becoming a perpetrator of mass violence. Since this is not a judgment to be made lightly, once such an assessment can be made with sufficient confidence, the window of opportunity for persuading a government to change its course is likely to be narrow. Second, the line between a direct R2P prevention strategy and an R2P reaction strategy could become blurry. For example, did the international responses to post-electoral violence in Kenya in 2007–8 and violent attacks in Guinea in September 2009 represent prevention or reaction efforts? Catastrophe may have been averted in both cases, but energetic international action was

Table 2.1 Illustrative direct R2P prevention measures Preventive measure

Objective Dissuade from violence

Offer incentives for “good behavior” Mediate the broader conflict (if applicable) Persuasion through intermediaries (patron states, neighbors, regional organizations) Condemn violence/violations Threaten criminal prosecution, diplomatic, economic sanctions Fact-finding/human rights monitoring mission Military surveillance Deploy peacekeeping forces Restrict flows of arms, money and other assets that facilitate violence Provide defensive support to potential victims

Limit ability to commit violence

X X X X X X X X

X X X X X

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triggered by events that already amounted to R2P crimes/violations. Third, direct prevention strategies inevitably carry the risk of unintended consequences. Well-intentioned international engagement on behalf of potential victims can inadvertently facilitate their attacking civilians perceived as being would-be perpetrators. Likewise, direct prevention strategies that rely on threats can “lock-in” external actors to actions that they would prefer to avoid, but find themselves with little choice if they are to maintain credibility.

Structural prevention Structural or root cause prevention can be understood as measures designed to affect the underlying factors (characteristics or conditions) that bear on the likelihood that mass atrocities will occur in any given state. Whereas an operational R2P prevention strategy can rely on overt indicators of escalating crises and assessments of potential perpetrators, a structural prevention strategy must turn to knowledge about how mass atrocities have occurred historically, with particular attention to the causal or risk factors and enabling conditions, as well as factors that mitigate risks or foster resilience. The basic logic is akin to disease prevention: identify the most common and most powerful risk factors, recognize which of these are amenable to influence with current capacities, and focus preventive efforts on counteracting the risk factors (or bolstering resilience factors) that ought to have the greatest impact on overall risk. This approach is complicated in the case of R2P crimes/violations for multiple reasons. First, R2P crimes/violations do not amount to a coherent category of phenomena. The four crimes/ violations associated with R2P are each diverse in their manifestation and development, and taken together they can span quite a wide range of events. Second, while genocide and mass atrocities are planned and systematic in important respects, extreme forms of violence are increasingly understood as “rare and contingent” outcomes.53 Third, knowledge of the causal factors and causal mechanisms of R2P crimes/violations remains limited. As the Genocide Prevention Task Force observed: “There is no consensus as to the causes of genocide and mass atrocities, nor is there one commonly agreed-upon theory that sufficiently explains the key catalysts, motivations, or mechanisms that lead to them.”54 In light of these challenges, the best that can be done is to consider empirical analysis of violent episodes that share the defining commonalities of R2P crimes/violations: systematic and deliberate attacks on a massive scale against civilian populations that typically comprise discrete social groups.55 Relevant studies fall under various headings including genocide, politicide, mass killing, and one-sided violence. The most consistent and important finding from this literature is about the relationship between mass atrocities and violent conflict and instability. Simply put, R2P crimes/violations virtually always occur in the context of major political instability, and most often in the context of violent conflict.56 Statistical analyses indicate that civil war is associated with many times greater likelihood of mass killing or genocide compared with similarly unstable countries where civil war is absent.57 Lower levels of deliberate violence against civilians also overlap significantly with armed conflict. According to the Human Security Brief 2007, “[i]n 2006 only three out of the 16 countries that experienced one-sided violence,” which they define as armed force against civilians resulting in at least 25 deaths per year, “were not embroiled in conflict.”58 Beyond the strong association between armed conflict and mass atrocities, there is limited consensus on the risk factors for mass atrocities. Quantitative analysis by Barbara Harff, the USsponsored Political Instability Task Force, and others suggests several additional risk factors for genocide or mass killing, including history of mass violence, state-led discrimination, autocratic regime, high infant mortality, and low trade openness.59 Researchers conducting qualitative case 30

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studies have argued for the relevance of factors including authoritarianism, territorial expansionism, ideologies of radical social transformation, social divisions and discrimination, and inequality of opportunity.60 It is notable that many factors identified as “root causes” of genocide and related crimes overlap with those identified as root causes of conflict more broadly.61 To translate this empirical evidence into a policy agenda, it is important to recognize that phenomena like mass atrocities do not result from single causes. In fact, it is very likely that there are not just multiple causes, but multiple causal mechanisms—i.e., distinct combinations of conditions and events that are necessary to lead to the outcome. The implications of “multicausality,” described here in terms of disease prevention, apply equally to structural R2P prevention: Most identified causes are neither necessary nor sufficient to produce disease. Nevertheless, a cause need not be either necessary or sufficient for its removal to result in disease prevention. If a component cause that is neither necessary nor sufficient is blocked, a substantial amount of disease may be prevented.62 Armed conflict may be neither necessary nor sufficient for the occurrence of mass atrocities, but it is clearly implicated in the most common causal mechanism that results in mass atrocities. Empirical evidence, therefore, suggests that efforts to prevent violent conflict should be at the center of a structural R2P prevention strategy. This conclusion does not specify how to pursue the prevention of violent conflict—e.g., whether to focus equally on structural and direct conflict prevention. In fact, it implies that advocates of R2P should work to refine current conflict prevention efforts, which are often scattershot, ad hoc, and lacking adequate investment.63 At the same time, the occurrence of R2P crimes/violations outside of conflict demonstrates that there is a causal pathway that does not include violent conflict. Therefore, rather than searching for a single structural R2P prevention strategy, it would be wise to conceive of a bimodal strategy: one that focuses on causal pathways that include violent conflict, the other on causal pathways that do not. More detailed research into cases of mass atrocities occurring in the absence of conflict is clearly merited. Rather than an extreme form of identity-related conflict—as Francis Deng has described genocide—these cases may more closely resemble the extreme end of the spectrum of gross violations of human rights.64 In this conception, a human rights approach to structural prevention, rather than a conflict mitigation approach, might be most suitable. In short, this could entail monitoring and publicizing lower level rights violations, building capacity of local human rights defenders, supporting rule of law and domestic accountability, and strengthening institutional mechanisms for rights protection.

Implications: three distinct R2P prevention strategies The foregoing analysis suggests three distinct but complementary approaches to operationalizing the responsibility to prevent: (1) direct prevention of R2P crimes/violations via strategies to dissuade potential perpetrators and/or diminish their capabilities to carry out these crimes; (2) structural prevention focusing on preventing violent conflicts; and (3) structural prevention focusing on preventing human rights abuses from escalating in the absence of armed conflict. The first type of R2P prevention strategy responds to the interest in articulating an R2P-specific prevention agenda, at least more than the other types. Yet, it would be foolish to dismiss the second and third types simply because they overlap heavily with existing international agendas. In fact, empirical patterns and the logic of prevention suggest that the greatest potential may lie in structural prevention focused on preventing violent conflict. Thus, a strong commitment to prevent mass atrocities—as represented by the global commitment to R2P—might add little 31

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Table 2.2 Comparison of smoking and lung cancer vs. violent conflict and mass atrocities Smoking and lung cancer

Violent conflict and mass atrocities

Most but not all cases of lung cancer are found in smokers. For Americans, about 90 percent of lung cancer cases presenting each year occur in smokers.66

Most but not all cases of mass atrocities are found in countries experiencing violent conflict. Ten of 15 “major genocides of the twentieth century” coincided with a military conflict.67

A person’s risk of developing lung cancer, given that he or she smokes, is roughly ten times greater than that of a person who does not smoke. Yet, because lung cancer is rare, only a small minority of smokers—between 10 and 20 percent—get lung cancer at any point in their lifetimes.68

By one estimate, a state experiencing largescale violent conflict is 16 times as likely to experience a mass killing event as a state experiencing political instability but not major conflict.69 Yet, because mass killing is rare, only a small minority of countries experiencing conflict or instability—less than 30 percent— experience mass killing.70

Knowledge about the causal linkages between smoking and lung cancer is limited. For example, the ways in which smoking and genetic mutations interact to elevate cancer risk are not fully understood.

Knowledge about the causal linkages between conflict and mass atrocities is limited. Hypotheses include that conflict opens political opportunities for potential perpetrators, that ongoing violence wears away at individuals’ restraints from committing egregious acts, and that governments choose mass killing as a strategy to maintain power when facing guerrillas.

to the shape of the conflict prevention agenda, but should add to the importance and robustness of these efforts. To reinforce this conclusion, consider an analogy with some striking similarities: smoking and lung cancer (see Table 2.2). One could imagine a line of argument that a “responsibility to prevent” lung cancer should be distinct from the smoking prevention agenda along the following lines: smoking is sometimes permissible, it will never be completely eliminated, and strategies focused on reducing smoking are by nature intrusive, since they can infringe on individual autonomy. In addition, the longstanding and expansive smoking reduction agenda is supported for lots of reasons other than the risk smoking carries for lung cancer. Perhaps most fundamentally, lung cancer sometimes occurs in non-smokers and most smokers never get cancer. A new commitment to prevent lung cancer, therefore, should leave aside the question of smoking and focus on the unique aspects of lung cancer prevention—perhaps eliminating use of asbestos or promoting screening and early detection. As should be evident, this argument is specious. Smoking is neither a necessary nor a sufficient cause of lung cancer, but reducing the incidence of smoking is the clearest and most powerful way to prevent lung cancer. If it had been established that the incidence of smoking was more or less fixed, resistant to any potential preventive measures, this would be justification for eschewing a focus on smoking. This is far from the case for smoking and there is little reason to think it is so for violent conflict either. In fact, the reduction in armed conflict globally since the mid-1990s may have been the main driver of the marked reduction in the incidence of genocide/politicide in this period.65 Furthermore, in the case of R2P prevention it is harder to identify manageable risk factors unrelated to conflict—like asbestos for lung cancer—which could form the basis of a distinct prevention strategy. 32

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Conclusion R2P, fundamentally, aspires to prevent the occurrence of mass atrocities. The concept’s preventive dimensions have received wide rhetorical praise and support—from the ICISS to the UN Secretary-General to civil society advocates. Yet, the level of rhetorical support has yet to be matched by sufficient conceptual and empirical analysis on which to ground the operationalization of the responsibility to prevent. This review suggests that it is important to distinguish political arguments and imperatives related to the shape of R2P prevention from ones based on empirical evidence and logic. The current analysis identifies three distinct but related approaches to R2P prevention. Rather than rejecting strategies to prevent conflict as beyond the bounds of the responsibility to prevent, R2P advocates should work to refine conflict prevention concepts and tools as one of the more promising ways of preventing mass atrocities. Ultimately, it is necessary to bring together the implications of scholarship about mass violence and an understanding of the range of feasible options based on an accurate reading of the political landscape, in order to make the responsibility to prevent more than just an attractive concept.

Notes 1 Despite the positive political dynamics related to prevention, there are significant challenges to gaining political support for robust prevention policies as well as vigorous preventive action in specific cases. These stem from, inter alia, the difficulty of touting success of prevention, governments’s concern that prevention equates to outside interference in domestic affairs, contentious North–South politics, and fear that real commitment to prevention could mean a “blank check” for capacity building and development assistance. See International Peace Institute, “Conflict Prevention and the Responsibility to Protect,” IPI Blue Paper No. 7, Task Forces on Strengthening Multilateral Security Capacity, New York, 2009, 32–33, and Bellamy, A. (2008). “Conflict prevention and the responsibility to protect.” Global Governance, 14: 135–156. 2 Chalmers, M. et al. (2007). “Spending to save: the cost-effectiveness of conflict prevention.” Defense and Peace Economics, 18: 2. 3 Brown, M. and Rosecrance, R. (1999). The Costs of Conflict. Lanham, MD: Rowman & Littlefield Publishers, 221. 4 Bellamy, “Conflict prevention,” 135. 5 UN Charter, Article 24(1). 6 UN Charter, Article 24(2). 7 UN Charter, Article 1[1]. 8 The Charter is not clear on whether internal conflicts represent a threat to or breach of the peace, but the Security Council has increasingly defined conflicts of primarily internal character to justify Chapter VII action. Thus, the Charter’s discussion of responsibility to prevent breaches of the peace can reasonably be extended to the full range of conflicts that the Council has defined under this rubric. 9 UN Charter, Article 2(5). 10 A/RES/57/337. 11 ICISS does not talk about violent conflict when discussing other elements of R2P. For example, in describing the “just cause” for intervention under the rubric of “responsibility to react,” the Commission refers to situations “when all order within a state has broken down or when civil conflict and repression are so violent that civilians are threatened with massacre, genocide or ethnic cleansing on a large scale” (p. 31) and later, more specifically to two sets of circumstances: “large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or large scale ‘ethnic cleansing,’ actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape” (p. 32). See International Commission on Intervention and State Sovereignty (ICISS) (2001). The Responsibility to Protect. Ottawa: International Development Research Centre. 12 ICISS, The Responsibility to Protect, 19.

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13 ICISS, The Responsibility to Protect, 20. 14 ICISS, The Responsibility to Protect, 20. 15 Sharma, S. (2010). “Toward a global responsibility to protect: setbacks on the path to implementation.” Global Governance, 16: 121–38; Bellamy, A. (2009). Responsibility to Protect: The Global Effort to End Mass Atrocities. Cambridge: Polity Press. 16 Gareth Evans’s book, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All (Washington, DC: Brookings Institution Press, 2008), describes a nearly identical toolbox of preventive measures, suggesting that at least Evans—acknowledged to be one of the central architects of the ICISS report—still endorses this expansive vision of the responsibility to prevent. 17 ICISS, The Responsibility to Protect, 27. 18 High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility. Online. Available HTTP: (accessed 25 August 2010), para. 201. 19 High-Level Panel, A More Secure World, para. 201, my emphasis. 20 High-Level Panel, A More Secure World, para. 88. 21 Annan, K. (2005). In Larger Freedom: Towards Development, Security and Human Rights for All. New York: United Nations, para. 135. 22 Annan, In Larger Freedom, para. 132. 23 Annan, In Larger Freedom, para. 106. 24 Kofi Annan, press release SG/SM/9197 AFR/893; 7 April 2004. 25 A/RES/60/1, para. 138. 26 A/RES/60/1, para. 139. 27 Ban Ki-moon (2009). Implementing the Responsibility to Protect (A/63/677), Summary. 28 Ban, Implementing the Responsibility to Protect, para. 11(b). 29 Ban, Implementing the Responsibility to Protect, para. 14. 30 Ban, Implementing the Responsibility to Protect, para. 14. 31 Ban, Implementing the Responsibility to Protect, para. 17. 32 Ban, Implementing the Responsibility to Protect, para. 22. 33 Ban, Implementing the Responsibility to Protect, para. 24. 34 Ban, Implementing the Responsibility to Protect, para. 27. 35 Ban, Implementing the Responsibility to Protect, para. 30. 36 Ban, Implementing the Responsibility to Protect, para. 32. 37 Ban, Implementing the Responsibility to Protect, para. 38. 38 Ban, Implementing the Responsibility to Protect, para. 42. 39 Ban, Implementing the Responsibility to Protect, para. 43. 40 Ban, Implementing the Responsibility to Protect, para. 45. 41 Ban, Implementing the Responsibility to Protect, para. 48. 42 International Peace Institute, “Conflict Prevention and the Responsibility to Protect,” 9. 43 International Peace Institute, “Conflict Prevention and the Responsibility to Protect,” 26. 44 Bellamy made this point (before Ban’s report to the General Assembly): “The R2P deals only with a particular type of human suffering and, to be plausible and effective, R2P measures should be narrowly focused on preventing the particular ills which concern it” (Responsibility to Protect, 102). 45 Rosenberg, S. (2009). “Responsibility to Protect: a framework for prevention.” Global Responsibility to Protect, 1: 442–77. 46 There is an ongoing effort by many esteemed international legal scholars, coordinated out of the Washington University at St. Louis School of Law, to promote a new treaty on crimes against humanity. See http://law.wustl.edu/crimesagainsthumanity/ (accessed 31 January 2012). 47 Bassiouni, C. (1996). “International crimes: jus cogens and obligatio erga omnes.” 59 Law & Contemp. Probs, 63 (Autumn): 96. 48 Rosenberg, “Responsibility to Protect,” 466, emphasis in original. 49 Ulfelder, J. and Valentino, B. (2008). “Assessing Risks of State-Sponsored Mass Killing.” Unpublished manuscript. 50 Bellamy, Responsibility to Protect, 101. 51 This is not to suggest that direct mass atrocity prevention strategies should neglect the possibility of influencing potential perpetrators via actions directed at other parties, such as patron states or powerful neighbors—see Albright, M. and Cohen, W., eds. (2008). Preventing Genocide: A Blueprint for U.S. Policymakers. Washington, DC: United States Holocaust Museum, American Academy of Diplomacy,

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52 53 54

55

56

57

58 59

60

61

62 63 64

65

66

67 68 69 70

and United States Institute of Peace, 66–67—or that direct conflict prevention strategies are always consensual—see Jentleson, B. (2000). Coercive Prevention: Normative, Political, and Policy Dilemmas. Peaceworks No. 35. Washington, DC: United States Institute of Peace. George, A. and Smoke, R. (1974). Deterrence in American Foreign Policy: Theory and Practice. New York: Columbia University Press, 11. Straus, S. (2007). “Second-generation comparative research on genocide.” World Politics, 59: 476–501. Albright and Cohen, Preventing Genocide, xxii, emphasis in original. Similarly, the ICISS report concluded: “there is no universal agreement over the precise causes of deadly conflict” (p. 22), despite the abundance of research on this subject in comparison to that on mass atrocities. These characteristics are not legal criteria and do not reflect every possible situation that could amount to genocide, crimes against humanity, war crimes or ethnic cleansing. This is simply the author’s shorthand interpretation of the core elements common to all four enumerated crimes/violations. Bates, R. et al. (2003). Political Instability Task Force: Phase IV Findings. McLean, VA: Science Applications International Corporation; Bartrop, P. (2002). “The relationship between war and genocide in the twentieth century: a consideration.” Journal of Genocide Research, 4: 519–32; Asia-Pacific Centre for the Responsibility to Protect (2009). Preventing Genocide and Mass Atrocities: Causes and Paths of Escalation. Online. Available HTTP: http://www.r2pasiapacific.org/images/stories/food/preventing% 20genocide%20and%20mass%20atrocities%20-%20causes%20and%20paths%20of%20escalation.pdf (accessed 25 August 2010); Albright and Cohen, Preventing Genocide. Krain, M. (1997). “State-sponsored mass murder: the onset and severity of genocides and politicides.” Journal of Conflict Resolution, 41: 331–60; Ulfelder and Valentino, “Assessing Risks of State-Sponsored Mass Killing.” Human Security Report Project (2008). Human Security Brief 2007. Vancouver: HSRP, 42, emphasis in original. Harff, B. (2003). “No lessons learned from the Holocaust? Assessing risks of genocide and political mass murder since 1955.” American Political Science Review, 97: 57–73; Bates et al., Political Instability Task Force; Albright and Cohen, Preventing Genocide. Rummel, R. (1994). Death by Government. New Brunswick, NJ: Transactions Publishers; Straus, “Second-generation comparative research on genocide”; Kiernan, B. (2007). Blood and Soil: A World History of Genocide and Extermination from Sparta to Darfur. New Haven, CT: Yale University Press; AsiaPacific Centre for the Responsibility to Protect, Preventing Genocide and Mass Atrocities. On root causes of violent conflict, see Carnegie Commission on Preventing Deadly Conflict (1997). Preventing Deadly Conflict: Final Report. Washington, DC: The Commission; Levy, J. (1998). “The causes of war and the conditions of peace.” Annual Review of Political Science, 1: 139–65. Rothman, K. and Greenland, S. (2005). “Causation and causal inference in epidemiology.” American Journal of Public Health, 95: S145. On these themes, see Woocher, L. (2005). Preventing Violent Conflict: Assessing Progress, Meeting Challenges. United States Institute of Peace Special Report 231. Deng, F. (2010). Strategies for Preventing Genocide and Mass Atrocities: Talking Points by Francis M. Deng. Online. Available HTTP: (accessed 25 August 2010). Human Security Centre (2006). Human Security Brief 2006. Vancouver: Liu Institute for Global Issues, University of British Columbia, 14; Ulfelder and Valentino, “Assessing Risks of State-Sponsored Mass Killing,” 8. Peto, R., Lopez, A.D., Boreham, J., and Thun, M. (2006). Mortality from Smoking in Developed Countries 1950–2000: Indirect Estimates from National Vital Statistics. Online. Available HTTP: (accessed 25 August 2010). Bartrop, “The relationship between war and genocide in the twentieth century.” Villeneuve, P.J. and Mao, Y. (1994). “Lifetime probability of developing lung cancer, by smoking status, Canada.” Canadian Journal of Public Health, 85: 385–88. Ulfelder and Valentino, “Assessing Risks of State-Sponsored Mass Killing,”14. Bates et al., Political Instability Task Force.

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3 THE RESPONSIBILITY TO REACT Frank Chalk, Roméo Dallaire and Kyle Matthews

In a new era where instant communications allows decision makers and the public to witness human suffering in real time, it is important to ask where is our collective and national will to intervene to end atrocities that shock the conscience of humankind. What can be done to correct the international community’s failure to protect endangered populations from slaughter? In this chapter we will review the second pillar of the Responsibility to Protect (R2P)—the Responsibility to React—and address the challenges to implementing the concept in a newly globalized world, where the spillover effects of mass atrocity crimes endanger international security and global economic prosperity.

A new world disorder: enter R2P The lessons learned from the 1994 Rwandan Genocide and the mass atrocities committed in the Balkans throughout the 1990s created the momentum to avert the human suffering within Kosovo’s borders. Although not approved by the UN Security Council, the NATO military intervention in Kosovo in 1999, which was later termed “illegal” but “legitimate,” divided the community of nations.1 Polarization led to a consensus among some nations that guidelines and norms for armed intervention needed to be established and that national sovereignty should no longer serve as a barrier to action when mass atrocities were unfolding. Following the initiative of UN Secretary General Kofi Annan, the Canadian government agreed to take the lead in establishing the International Commission on Intervention and State Sovereignty (ICISS). Annan was haunted by the UN Security Council’s decision to not reinforce and ultimately reduce the support and personnel of the UN peacekeeping mission in Rwanda, which allowed the killing machine that engulfed the country in 1994 to destroy close to one million lives in a genocide while he was in charge of the Department of Peacekeeping Operations. Annan was equally troubled by the failure of the UN Security Council to authorize the use of force in Kosovo. He decided to seek a new way for the international community to mount humanitarian intervention in the post-Cold War era. After two years of consultations across the globe, ICISS released its final report in 2001, entitled “The Responsibility to Protect.” The ICISS report gave the international community the R2P principles, a concept of sovereignty that obligates national governments to protect their citizens. R2P makes it clear that 36

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the national authorities governing the territory in which atrocities are unfolding have the right of first response. But the emerging norm stipulates that if a state refuses or is unable to protect its own people from gross human rights violations, then the international community has a responsibility to fill the void and protect them. In this new paradigm, indifference and inaction on the part of the international community, previously justified by the Westphalian notion of state sovereignty, can no longer be tolerated. The ICISS report outlined three distinct pillars that make up R2P: the responsibility to prevent, the responsibility to react, and the responsibility to rebuild. The three tenets of R2P privilege the protection of innocent civilians facing organized mass violence. While R2P starts with the most ambitious goal, implementing the Responsibility to Prevent, the Responsibility to React is designed to guide states when immediate action is demanded by the facts on the ground. As the ICISS’s report explains: When preventive measures fail to resolve or contain the situation and when a state is unable or unwilling to redress the situation, then interventionary measures by other members of the broader community of states may be required. These coercive measures may include political, economic or judicial measures, and in extreme cases—but only extreme cases—they may also include military action. As a matter of first principles, in the case of reaction just as with prevention, less intrusive and coercive measures should always be considered before more coercive and intrusive ones are applied.2 The Responsibility to React provides a checklist of coercive and non-coercive policy options focusing first and foremost on the use of soft power (non-military) measures that can be ramped up to intensify pressure on the state that is unwilling or unable to protect its own citizens. The Responsibility to React clearly stipulates that any armed intervention must abide by the just war guidelines, identified as right intention, last resort, proportional means and reasonable prospects.3 Even when military measures are justified, a full-scale invasion is not encouraged. Rather, military options such as strengthening peacekeeping operations, establishing safe havens for civilians, enforcing arms embargoes, imposing no-fly zones and naval blockades, and jamming radio broadcasting of hate speech are some of the measures that ought to be pursued first.4

The UN conundrum The UN was founded on the principle of non-intervention in the domestic affairs of states. Many of its member states have graduated from colonial status and jealously guard their sovereignty. Thomas Weiss and Ramesh Thakur outline the challenge of making R2P a norm within the UN system: “outsiders wishing to protect or assist affected populations confront the hard reality of the nonintervention principle in Article 2(7) of the UN Charter.”5 Kofi Annan, speaking in his role as Secretary General of the UN, understood that governments cannot treat their sovereignty as a license to kill their own citizens. Speaking at the Ditchley Foundation in 1998, Annan explained: The Charter, after all, was issued in the name of “the peoples”, not the governments, of the United Nations. Its aim is not only to preserve international peace—vitally important though that is—but also “to reaffirm faith in fundamental human rights, in the dignity and worth of the person”. The Charter protects the sovereignty of peoples. 37

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It was never meant as a license for governments to trample on human rights and human dignity. Sovereignty implies responsibility, not just power.6 And yet, the UN Security Council and its five permanent members who have the power to veto Security Council resolutions are reluctant to halt the newest rounds of deadly violence against civilians that have marked the first decade of the twenty-first century. While it is true that the Security Council mandated preventive action for Cote d’Ivoire (S/Res/1967 (2011)) and Libya (S/Res/1973 (2011)) in 2011, Russia, China, South Africa and other countries swiftly withdrew their support, charging that they should have been given a greater say over the military operations conducted by the UN authorized forces, especially in Libya. While all are signatories to the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, the “Permanent Five” have failed to demonstrate leadership, with some using their veto power or the threat of a veto irresponsibly to block the interdiction of mass atrocity crimes once they are underway.7 One of the cases that led to the foundation of the Responsibility to Protect involved the Russian Federation and the People’s Republic of China, who in 1998 openly threatened to use their veto power to block any resolution that sought to authorize the use of force to protect civilians in Kosovo.8 As Paul Heinbecker, Canada’s former ambassador to the UN, recently proposed: we should continue to press for a formal undertaking by all five veto-holders that they will never employ vetoes to prevent collective action on genocide, crimes against humanity and war crimes, and will exercise the veto only in cases of supreme national interest.9 If they do not, they should not be surprised when other actors or organizations emerge to respond to unfolding human catastrophes, as NATO did in 1999 in the face of Russian and Chinese threats to use their veto power to block action, despite evidence of Serbian atrocities.

Buyer’s remorse for a watered down R2P? The heads of state and government attending the 2005 UN World Summit meeting in New York endorsed the Responsibility to Protect principles and committed themselves to doing more to prevent future genocides, ethnic cleansings, crimes against humanity and war crimes. However, one remaining problem is that the landmark agreement is not legally binding and therefore does not guarantee enforcement of the Responsibility to Protect. Concerns have also been expressed that compared to the ICISS report, the states attending the UN’s 2005 World Summit whittled R2P down so much that they removed its nuances, leaving the field open for misuse, neglect or outright dismissal. Alex Bellamy has observed that in 2005 the attending states slid backwards by “emphasizing international assistance to states (pillar two), downplaying the role of armed intervention, and rejecting criteria to guide decision-making on the use of force and the prospect of intervention not authorized by the UN Security Council.”10 In modern times no genocide or major crime against humanity, once underway, was curtailed solely through the application of soft-power measures. Crimes against humanity in East Pakistan in 1971 and the killing fields of Cambodia in 1978 were only stopped by intervening militarily. By downplaying the importance of military force and omitting the criteria for its use, the 2005 Summit states advanced a diluted version of R2P. Worrying in itself, one could also argue that by keeping the “carrot” but removing the “stick,” the World Summit sent a clear 38

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message to the global community that the tools of diplomacy will not be supported with parallel threats of force, thereby compromising the prevention pillar of R2P. The last decade offers examples of numerous cases in which the international community has refined and tried to implement the Responsibility to React with limited success. The mass atrocity crimes in Darfur, the fighting in 2008 between the government of Sri Lanka and the Tamil Tigers, trapping scores of civilians between the two sides, and the ethnic cleansing in Kyrgyzstan, all exemplify the failure to operationalize the Responsibility to React in a robust and rapid manner. Over the past decade, when non-intervention was the norm, two serious problems in the international system became apparent. First, the member states of the UN never put credible military force on the table to reinforce soft-power measures and deter predatory violence. The only country with enough military might and logistical capacity to do the job alone or lead a coalition of the willing, the US, remained bogged down in Afghanistan and Iraq, devoid of the extra resources and the will needed. Second, UN member states denied the UN sufficient military capacity to intimidate potential genocidaires with a UN Multinational Standing High Readiness Brigade (SHIRBRIG) capable of rapidly deploying to deal with complex emergencies in a timely and effective manner. In 1995, following the terrible events of the Rwandan genocide, a group of governments (Austria, Canada, Denmark, the Netherlands, Norway, Poland and Sweden) had agreed to create SHIRBRIG.11 However, in 2008, a number of countries opted for defence budget and troop cuts; they abandoned SHIRBRIG and it was dissolved in 2009, weakening the UN’s peacekeeping capacity.12 With its disappearance, the hollowing out of the UN’s already limited capacity to protect civilians in troubled corners of the world deepened.

The pendulum swings away from humanitarian intervention While the idea of humanitarian intervention emerged victorious at the end of the 1990s, the pendulum has unfortunately swung in the opposite direction over the past decade. The Islamic terrorists’ attack on New York City and Washington also impacted negatively on the implementation of R2P. Following the NATO intervention in Afghanistan of 2001 and the US-led coalition of the willing’s invasion of Iraq in 2003, Western democracies, spearheaded by the US, responded to 9/11 by concentrating their attention and national power on protecting their own citizens from external threats. The protection of foreign civilians from murderous thugs and despotic regimes in far-away lands simply fell off the Western world’s radar screen, as many governments recalibrated their policies to enlist in the “Global War on Terror” and “homeland security.” Kenneth Roth, Executive Director of Human Rights Watch, has commented: “The people of Darfur, with more than two million displaced and tens of thousands dead, can in this sense be said to be indirect victims of the Iraq war.”13 Michael Ignatieff pointedly added to Roth’s observation, commenting that “[t]he demand for humanitarian intervention is high, but the supply has dried up.”14 Some of the governments participating in the Iraq intervention, most notably the American and the British, have also done a disservice to the aspiring R2P norm by inaccurately justifying their participation as based on humanitarian considerations. In a speech in the British House of Commons on the eve of Operation Iraqi Freedom, Prime Minister Tony Blair argued that the United Kingdom needed to take action against Saddam Hussein’s regime primarily due to the threat it posed to the world through its weapons of mass destruction and links to international terrorist networks. But Blair also argued that the planned intervention was humanitarian in nature given that “[t]he brutality of the repression – the death and torture camps, the barbaric prisons 39

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for political opponents, the routine beatings for anyone or their families suspected of disloyalty are well documented.”15 Speeches such as these have aroused the already mounting suspicion of many governments in the Global South and sown confusion over R2P. It has provided political ammunition to those countries already seeking to champion the right of non-interference in their domestic affairs, regardless of the scale and nature of the crimes being planned or committed within their borders. While critics of R2P point to the US-led intervention in Iraq as a neo-imperialist venture justified hypocritically on humanitarian and security grounds, defenders of R2P seek to make clear that the intervention completely failed to meet R2P’s stringent criteria for military action. Kenneth Roth forcefully argues that “the invasion of Iraq fails the test for a humanitarian intervention. Most important, the killing in Iraq at the time [of the intervention] was not of the dire and exceptional nature that would justify military action.”16 Roth explains: “Indeed, there were times in the past when the killing was so intense that humanitarian intervention could have been justified—for example, during the 1988 Anfal genocide, in which the Iraqi government slaugheterd some 100,000 Kurds. However, by the time of the March 2003 invasion, the government’s killing had ebbed.”17 Nor were R2P’s precautionary principles satisfied, especially the stricture that military action only be used as a last resort, and that the intervention must primarily be motivated by humanitarian concerns.

Abusing and blocking the Responsibility to React The United States and Britain were not the only governments to have used humanitarian language to justify military intervention in recent memory. The Russian Federation intervened militarily in the Republic of Georgia in August 2008, referring to R2P to justify its unilateral action.18 While claiming it was acting to protect its citizens in Georgia’s separatist enclave of South Ossetia, Moscow’s rapid deployment of military personnel outside of its borders did not comply with a key tenet of the Responsibility to React, namely that force only be used as a “last resort.”19 As the R2P report states clearly: “Every diplomatic and non-military avenue for the prevention or peaceful resolution of the humanitarian crisis must have been explored … The responsibility to react—with military coercion—can only be justified when the responsibility to prevent has been fully discharged.”20 Soon after intervening, Moscow recognized the independence of South Ossetia, as well as that of Georgia’s other secessionist region, Abkhazia. These actions contradicted the “Right Intention” underlined in the Responsibility to React, which states: “Any use of military force that aims from the outset, for example, for the alteration of borders or the advancement of a particular combatant group’s claim to self-determination, cannot be justified.”21 Some countries provide rhetorical support to R2P, but oppose it in practice for a variety of economic, political and ideological reasons. In discussing how to translate R2P into reality, Samantha Power stresses that the “Sovereignty Bloc” must be neutralized.22 China and Russia continue to promote sovereignty as an absolute value that trumps the principle that civilians must not be abandoned to the predatory mass violence of their governments. Beijing and Moscow fear that restive national minorities will focus unwanted international attention on their volatile domestic affairs. Perhaps most sobering of all is Michael Ignatieff’s observation that “[t]he combined resurgence of the Russians and Chinese makes it unlikely that the Security Council will authorize humanitarian interventions again, at least in regions vital to their interests.”23 While some opponents of R2P paint the emerging norm as an “imperial” and “neo-colonial project” of the West, it is hard to accept these claims seriously when countries such as South Africa, Rwanda and Botswana advocate it so strongly within their regions. Bellamy believes that 40

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Rwanda and South Africa persuaded the skeptics in the Group of 77 that R2P was in their national interest. He quotes South African representatives contending: “‘we’re not likely to respond to threats of genocide in London, Rome or San Francisco … this is all about us, in our countries, on our continent’.”24 Those who label the emerging R2P norm as a “neo-colonial project” often speak for autocratic or predatory regimes, not on behalf of the downtrodden. However, there are four distinct facts that these critics ignore; first, R2P was championed by Canada, a Western democracy with no colonial baggage in the Global South; second, it was initiated by an African UN Secretary General; third, one of the ICISS’s co-chairs was Algerian; and finally, the principle that sovereignty entails responsibility was first argued by a Sudanese diplomat, Dr Francis Deng, who in 2007 became the UN Secretary General’s Special Adviser on the Prevention of Genocide. Interestingly, a 2005 public opinion study contradicts the view that the R2P principles are opposed by the ordinary African citizen. When asked whether the UN Security Council “should or should not have the right to authorize the use of military force to prevent severe human rights violations such as genocide,” 65 percent of the Africans polled agreed with the statement and just 19 percent disagreed. Support for R2P was strongest among those polled in Ghana (80 percent), Kenya (75 percent), Nigeria (66 percent), Tanzania (66 percent), Zimbabwe (65 percent), and Cameroon (64 percent), while less than half of South Africans (47 percent) polled supported the use of force to enforce the new norm. The attitude study concludes that aside from Angola, where 37 percent of respondents opposed the idea of humanitarian intervention, an average of 80 percent of the citizens of all other African countries supported it.25 Such polling conclusively demonstrates that the average African views R2P as a universal, not a Western-centric norm.

Building infrastructure and momentum for action Several research, educational and professional groups have come to the realization that if the R2P principles are ever to be implemented on the international scene, it is crucial to generate discussion and awareness among domestic politicians, the media, and civil society. In Canada, the Will to Intervene Project, based at the Montreal Institute for Genocide and Human Rights Studies at Concordia University, researches best practices to mobilize national governments to implement R2P principles. The project’s first study, published in 2009, focused on building capacity for R2P in the US and Canada, advocating a whole-of-government approach aimed at marshalling and focusing soft and hard national power in a more efficient manner.26 Similarly, in the United States, the US Institute of Peace, the US Holocaust Memorial Museum and the American Academy of Diplomacy created the Genocide Prevention Task Force, co-chaired by former US Secretary of State Madeleine Albright and former US Secretary of Defense William Cohen. In December 2008 the Task Force released a detailed report featuring strategic recommendations to the executive and legislative branches of the US government explaining ways they could improve their capacity to prevent and react to mass atrocities.27 The Obama administration has already followed through on several of the Task Force’s recommendations, creating a designated focal point within the National Security Council tasked with preventing and responding to mass atrocities, genocide and war crimes.28 In addition to proactive civil society groups and academic research centres advancing R2P principles, the North Atlantic Treaty Alliance (NATO) has begun to review its role as a responder to R2P situations. In 2010, NATO’s Group of Experts, led by former US Secretary 41

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of State Madeleine Albright, released a report advocating a new strategic concept for the alliance. The report states: Because of its visibility and power, NATO may well be called upon to respond to challenges that do not directly affect its security but that still matter to its citizens and that will contribute to the Alliance’s international standing. These challenges could include the humanitarian consequences of a failed state, the devastation caused by a natural disaster, or the dangers posed by genocide or other massive violations of human rights.29 Furthermore, the Group of Experts recommended to NATO that [c]oordination between the UN and NATO can prove crucial in the event of genocide, other massive violations of human rights, or humanitarian emergency. The Strategic Concept should make clear that NATO is willing to consider requests from the UN to take appropriate action in such circumstances (possibly in support of other regional organizations), provided the North Atlantic Council agrees to the mission and resources are available to carry it out.30

R2P is also a national responsibility These developments take us back to the central challenge of implementing the Responsibility to React, which is: “who enforces it and how?” Technically, enforcers must be authorized by the UN Security Council, but if all soft-power measures fail and boots on the ground remain the only option left, who will claim authority to act? Will the next round of endangered civilians have no choice but to wait helplessly as the UN Security Council dithers and its members, individually or collectively, neglect their Responsibility to React? Will a “coalition of the civilized” emerge to operationalize the Responsibility to React in a timely fashion? R2P was a response to a particular moment in time, the 1990s, and the norm is not being discussed at the domestic political level in the countries that have the capacity to react. The time has come to examine what national governments should do when they move from rhetoric to action. Before the UN and other multilateral bodies can implement the Responsibility to React, states the world over must raise their national domestic capacities to contribute to this task. Much work needs to be done, including:  the conceptual work in each country of thinking through how the national interest is advanced by implementing the Responsibility to React and explaining these reasons to the public;  the hard work of crafting doctrines and policies to guide government departments of development, foreign affairs and defense implementing the Responsibility to React; and  the practical work of identifying pragmatic next steps needed to ensure success.

The national interest in implementing the Responsibility to React For years, human rights groups have advocated intervention to save lives endangered by mass atrocity crimes by advancing humanitarian arguments. Intervention to protect innocent civilians is widely acknowledged to be the right thing to do, morally and ethically. Ernie Regehr, Senior Policy Advisor to Project Ploughshares, succinctly summarizes the essential arguments when he writes in reference to Canada but with relevance far beyond: “the Canadian interest is … shaped by a core value that commits us to coming to the aid of the world’s most vulnerable—partly 42

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because chronic human suffering undermines confidence in and respect for a rules-based order and thus undermines our vital security interests, but also because we simply recognize ourselves as constituents of a common humanity.”31 Had Regehr’s tapestry, weaving together humanitarian values with broad security interests, sufficed, the governments of the US and Canada would have stopped the Rwandan genocide dead in its tracks. But they did not. In Mobilizing the Will to Intervene: Leadership to Prevent Mass Atrocities, we argue that a combination of politics, history, and unawareness of any national interest at stake in Rwanda decisively trumped empathy for a distant part of humanity. Like the public’s assumption that 25 percent of eligible Americans give their blood to the Red Cross without compensation, when the figure is actually 2.5 percent, expecting voters and political leaders to act primarily from humanitarian motives gives both groups credit for being far more altruistic and empathetic than they actually are.32 Halting mass atrocities is in the national interest of all countries, but until very recently human rights advocates failed to make the national interest case powerfully to their nation’s political leaders. Yet the implementation of the Responsibility to React depends on driving that point home in each country; engaging with the national interest debate is an essential prelude to securing domestic support for the international cooperation necessary to halt mass atrocities. To mount an effective argument, we must alert political leaders around the world to the four threats to their national interests that will overtake them and their citizens if they fail to avert or stop mass atrocities:  first, mass atrocities raise the incidence of terrorism, piracy and other forms of lawlessness on the land and sea;  second, mass atrocities facilitate the spread of warlordism, which obstructs access to vital raw materials at economically viable prices;  third, mass atrocities trigger forced migrations that accelerate the incidence and spread of lethal infectious diseases whose worldwide diffusion can become a reality due to the enormous increase in international air travel today;  fourth, mass atrocities destabilize countries, which in turn fuels transnational crime as has happened in Somalia, the Democratic Republic of Congo, Serbia, Bosnia and Croatia.33 Reinforcing these points, Maurice Baril, the military advisor to Kofi Annan when he headed the UN Department of Peacekeeping Operations, characterizes contemporary threats to national security as “no longer exclusively measured in geographic borders that are physical.”34 “Maintaining secure borders,” he argues, “requires analyses that assess the impact of economic variables, pandemics such as H1N1 and HIV/AIDS, people movement due to climate changes, and the nature of intra-state conflicts.” In Baril’s view, today’s permeable borders ensure that “money, disease, migration, ideas, and technology impact on how foreign and defence policy is and will be determined.”35

Developing guidelines for departments of international development, foreign affairs and defence implementing the Responsibility to React Blending hard power with soft power to implement the Responsibility to React As the Responsibility to React stipulates, soft-power measures should be exhausted before hard power is contemplated. Baril defines soft power as “the strategic use of diplomacy, persuasion, 43

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capacity building, and the projection of power and influence in ways that are cost-effective and have political and social legitimacy.”36 Yet soft power is no panacea, especially when it is deployed without the backing of credible military force. Quiet diplomacy and negotiations brought about the failed Arusha Accords, designed to bring the Rwandan civil war to an end and propel a shared Hutu/Tutsi government to power in 1994. When spoilers sabotaged the agreements, one of the authors, LGen Roméo Dallaire, then commander of the UN Assistance Mission for Rwanda, found himself rendered virtually powerless because the permanent members of the UN Security Council refused his mission with essential reinforcements and a mandate to halt escalating ethnic violence directed against innocent civilians. The members of the Security Council buried their heads in the sand and abandoned the victims to their fate. They could have initiated a wide range of actions including suspension of visas, expulsion of the Ambassador of Rwanda from the Security Council, and removing hate radio station RTLM from the airwaves, but sovereignty was advanced as the argument for doing nothing. Their refusal to recognize a responsibility to react brought about a perfect demonstration of the fact that soft power rarely succeeds if it is not paired with the credible threat of hard power. Before any country can act upon the Responsibility to React, it must develop and hone policies for the departments of its own government responsible for international development, foreign affairs and defense. In addition, these departments must master the art of working together effectively at home and in the field, moving beyond an ad hoc approach to cooperation. The broad canvas of what governments must do is now clear. It is the ultimate irony that many of these policies emerge from experience gained during the interventions in Afghanistan and Iraq, two missions that definitely did not meet the R2P criteria. Despite this fact, vital lessons should be wrung from the hard-earned experiences of the US and its allies in Iraq and the US, Canada and other countries in Afghanistan. Let us turn now to some of the relevant wisdom acquired in these cases.

No smart power without effective interagency coordination Countries implementing the Responsibility to React must focus on civilian protection by aiding the peoples in question to create safe and secure environments, the rule of law, stable governance and social well-being. The art of reacting to mass atrocities lies in using coercive “smart power” to head off the need for an overt military response. Employing smart power, Maurice Baril argues, “underscores the necessity of a strong military,” but acknowledges that “security and development cannot be independent of each other.”37 He views the twinning of development and security, as well as a new emphasis on civil–military cooperation, as essential prerequisites to success. “We cannot shoot our way to peace,” he reminds us, “the civil–military relationship is critical.”38 Canada’s experiences in Afghanistan teach us that much work remains to be done. The Canadian Provincial Reconstruction Teams (PRTs) came into existence, Baril points out, “to fill the need for a substantive civilian corps … [which] can rapidly respond to peace building requirements.”39 But as a study of the Canadian PRT in Kandahar by researchers at Princeton’s Woodrow Wilson School suggests, other governments have much to learn from the problems faced by the Canadians. Before Afghanistan, Canadian governmental agencies were “not often … called upon to work together,”40 and the Canadian PRT in Kandahar suffered from “lack of coherent vision about what the PRT was meant to accomplish.”41 Its problems included an imbalance “between human intelligence, security and development,” “the lack of NGO support,” inadequate exchanges of intelligence and other information between departments, poor “relationships with local actors, a lack of training for the mission, a lack of availability of governmental personnel at CIDA [Canadian International Development Agency] and 44

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DFAIT [Department of Foreign Affairs and International Trade], a lack of metrics to measure success and the overwhelming importance of individual personalities.”42 What is badly needed now, the Princeton team concluded, is “interagency coordination at all levels” and “clear objectives so … [government departments] do not infringe upon the work of other departments,” as well as “cooperation and information sharing among the departments from the bottom to the top of government.”43 To these points we add our own recommendation urging the development of truly coordinated solutions fully integrating diplomatic, development and military efforts crafted by a new generation of multidisciplinary leaders.

Civilian protection is the key to success The US experience in Afghanistan leads to even more damning observations of deficiencies in concepts and operations than those detected in Canadian operations. In August 2009, before he resigned from his position as Commander of the US Armed Forces and the International Security Assistance Force (ISAF) in Afghanistan, General Stanley A. McChrystal analyzed and proposed solutions to many of the problems he perceived in a confidential memorandum addressed to US Secretary of Defense Robert Gates. His report vividly illustrates the yawning gaps in understanding that undermine the capacity of states to carry out foreign civilian protection operations to implement the Responsibility to React, and for that reason we quote extensively from his findings and recommendations. First on McChrystal’s list of problems is the need to change the operational culture of missions like ISAF. ISAF was a conventional force, he noted, “poorly configured” for counterinsurgency and “inexperienced in local languages and culture.”44 Physically and psychologically distanced from the people they were meant to protect, the ISAF troops thought little of causing unnecessary civilian casualties. But ISAF faced the risk of nothing less than “strategic defeat by pursuing tactical wins that cause civilian casualties or unnecessary collateral damage,” McChrystal observed. “The insurgents cannot defeat us militarily,” he concluded, “but we can defeat ourselves.” “Change the operational culture to connect with the people,” he recommended, and “focus on operations that bring stability, while shielding them from insurgent violence, corruption, and coercion.” Only through “face-to-face relationships” and meeting “the needs of the people at the community level” could ISAF and Afghan forces prevail, he insisted.45 Second, McChrystal emphasized, ISAF must improve its understanding of the Afghan people. This is a key lesson for the international community when it attempts to halt future genocides. ISAF soldiers and civilian personnel should view themselves, he suggested, as “guests of the Afghan people and their government, not an occupying army.”46 It is crucial that key personnel “receive training in local languages,” that tour lengths be lengthened to “build continuity and ownership of success,” and that all foreign personnel “show respect for local cultures and customs and demonstrate intellectual curiosity about the people of Afghanistan.”47 Nurturing and sustaining a group of ISAF soldiers, civilians and outside specialists “with deep knowledge of Afghanistan” is a prerequisite for success, according to McChrystal, and by analogy, we would add, such knowledge and respect for local cultures should be a pillar of all future interventions designed to prevent and interrupt mass atrocities.48 Third, and based upon the foundation of improved understanding resulting from connecting with and improving knowledge of the host population, McChrystal advocated building personal relationships with the Afghan population and projecting confidence. ISAF, he contended, “must spend as much time as possible with the people and as little time as possible in armored vehicles or behind the walls of forward operating bases.” “When ISAF forces travel through even the most secure areas of Afghanistan firmly ensconced in armored vehicles with body 45

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armor and turrets manned, they convey a sense of high risk and fear to the population,” he noted. “ISAF cannot expect unarmed Afghans to feel secure before heavily armed ISAF forces do. ISAF cannot succeed if it is unwilling to share risk, at least equally, with the people.”49 Fourth, McChrystal highlighted the need for a new ISAF communications strategy focusing on the vulnerabilities of the insurgents, including “their causing of the majority of civilian casualties, attacks on education, development projects, and government institutions, and flagrant contravention of the principles of the Koran.” That McChrystal realized none of this could happen without “increased cultural expertise” and better knowledge of traditional communications methods in Afghanistan is evident from his key recommendations for future action— consulting with authoritative Afghan religious leaders, teachers and tribal elders to “tap into the wider cultural pulse of Afghanistan,” and using “word of mouth and modern technology” to disseminate indigenous narratives.50

Doctrine, policies and training for halting mass atrocities Genocide prevention and peace-support missions are not simply one point on the broad spectrum of conventional war-fighting operations for which most military units are trained. Analysts drew that lesson after observing Rwanda and the Balkans in the 1990s and it is just as true today. For this reason, senior commanders in a number of countries, including the United States, are directing military planners to specially prepare for preventing “human suffering due to mass atrocities.”51 The Harvard Kennedy School of Government worked for two and a half years to help fill the gap in American planning, releasing in 2010 Mass Atrocities Response Operations: A Military Planning Handbook, co-authored with the US Army Peacekeeping and Stability Operations Institute (PKSOI). Humanitarian and relief operations normally take place in a nonviolent environment, they point out, while MARO may need to combine non-combatant evacuation operations, distribution of food and medicine, and high-intensity conventional fighting. “What is more,” they continue, “the enemy is often behaving differently during a MARO than in conventional warfare; instead of seeking first to defeat opposing forces, the enemy is focused on slaughtering defenceless civilians.” Traditional non-combatant evacuation operations do not usually involve “[d]efeating combatants, protecting civilians from continuing attacks, or creating stable conditions … ,” but MARO do. And unlike a counterinsurgency operation in which both sides vie for the loyalty of civilians, and some civilians are allied with one side or the other, in its overview of the study the MARO team points out that “[i]n a MARO, protection of civilians victimized by perpetrators is the core objective of the mission.”52

Next steps: a summary of guidelines and actions needed to ensure success implementing the Responsibility to React From these important observations, several guidelines for government departments emerge:  understand and operationalize the conclusion that it is in the national interest of all countries to implement the Responsibility to React;  pair soft power with the credible threat of hard power;  train troops for mass atrocity response operations chiefly aimed at protecting civilians;  expand budgets allocated to support training in foreign languages and cultures to improve capacity to prevent violent conflict and interdict mass atrocities;  focus Responsibility to React missions on aiding host governments to create safe and secure environments, the rule of law, stable governance and social well-being; 46

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 embrace Maurice Baril’s aphorism that “We cannot shoot our way to peace,”53 the civil–military relationship is critical and developing civilian capacity is imperative;  make inter-departmental cooperation between national government departments responsible for defense, development and diplomacy second nature through steadily coordinating their work at home and in the field, training a new generation of multidisciplined leaders to integrate across departmental boundaries their operations to aid fragile and failing states;  support an operational culture that connects with the people at the local level and focuses on operations that bring stability;  employ strategies and tactics that avoid unnecessary casualties among civilians. While there remains strong opposition to R2P, people will gradually learn that in addition to being a moral imperative the Responsibility to React serves their national interests. In a globalized world it is next to impossible to seal our national borders from the devastation that mass atrocities produce. Their spill-over effects include uncontrolled migration, the emergence and spread of deadly diseases, and failed states that can become safe havens for pirates, drug smugglers and terrorists.54 Gareth Evans concludes that “states that will not or cannot stop internal atrocity crimes are the kind of states that cannot or will not stop terrorism, weapons proliferation, drug and people trafficking, the spread of health pandemics, and other global risks.”55 It is increasingly the case that the lives we save when we halt mass atrocities may very well be our own.

Notes 1 Independent International Commission on Kosovo, Kosovo Report (New York, 2000). 2 International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa: IDRC, 2001), p. 29. 3 Ibid., pp. 35–37. 4 For a detailed list of non-military and military options under the Responsibility to React, see Gareth Evans, The Responsibility to Protect: Ending Mass Atrocities Crimes Once and For All (Washington, DC: Brookings Institution, 2008), pp. 105–27. 5 Ramesh Thakur and Thomas G. Weiss, “R2P: From idea to norm—and action?,” Global Responsibility to Protect, 1, 1 (February 2009): 23. 6 Kofi Annan, “Intervention,” Ditchley Foundation lecture, 1998. Available at: http://www.ditchley.co. uk/page/173/lecture-xxxv.htm (accessed 19 October 2010). 7 United Nations, “Chapter IV Human Rights, Convention on the Prevention and Punishment of the Crime of Genocide.” United Nations Treaty Collection. Available at: http://treaties.un.org/Pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4&lang=en (accessed 4 November 2010). 8 International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Research, Bibliography, Background (Ottawa: IDRC, 2001), p. 112. 9 Paul Heinbecker, “What to do if Canada wins a seat at the Security Council table”, The Globe and Mail (25 September 2010). Available at: http://www.theglobeandmail.com/news/opinions/what-to-do-ifcanada-wins-a-seat-at-the-security-council-table/article1724893/singlepage/#articlecontent (accessed 27 September 2010). 10 Alex Bellamy, “The responsibility to protect—five years on,” Carnegie Council on Ethics and International Affairs, 24, 2 (2010): 143. 11 Jonas von Freiesleben, “Denmark remains committed to UN peacekeeping – but is contemplating SHIRBRIG pull-out,” Center for UN Reform Education, Center Interviews, 18 (6 August 2008), p. 1. Available at: http://www.centerforunreform.org/node/359 (accessed 10 January 2012). 12 Walter Dorn and Peter Langille, “Where are our peacekeepers?,” The Toronto Star (8 August 2009). Available at: http://www.thestar.com/comment/article/678155 (accessed June 28 2010). 13 Kenneth Roth, “Was the Iraq War a humanitarian intervention? And what are our responsibilities today?,” in Responsibility to Protect: The Global Moral Compact for the 21st Century, ed. Richard H. Cooper and Juliette Voïnov Kohler (New York: Palgrave Macmillan, 2009), pp. 104–5. 14 Michael Ignatieff, “The duty to rescue,” The New Republic (24 September 2008), p. 43.

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Frank Chalk, Roméo Dallaire and Kyle Matthews 15 “Speech given by Prime Minister Tony Blair opening today’s debate on the Iraq crisis in the House of Commons,” 18 March 2003. Available at: http://www.guardian.co.uk/politics/2003/mar/ 18/foreignpolicy.iraq1 (accessed 21 April 2011). 16 Kenneth Roth, “Was the Iraq War a humanitarian intervention?,” p. 110. 17 Ibid., pp. 103–10. 18 Jennifer Welsh, “Implementing the ‘Responsibility to Protect’,” Oxford Institute for Ethics, Law and Armed Conflict, University of Oxford. No. 1/2009. Available at: http://www.elac.ox.ac.uk/ (accessed 4 November 2010), p. 6. 19 For a detailed analysis of how the Russian Federation’s intervention did not meet the R2P criteria, please see “The Georgia-Russia crises and the Responsibility to Protect: background note,” Global Centre for the Responsibility to Protect. Available at: http://www.globalR2P.org/pdf/related/Georgia Russia.pdf (accessed 4 November 2010). 20 International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa: IDRC, 2001), p. 36. 21 Ibid., p. 35. 22 Samantha Power, “Foreword,” in The Responsibility to Protect: The Global Moral Compact for the 21st Century, ed. Richard Cooper and Juliete Voïnov Kohler (New York: Palgrave Macmillan, 2009), p. x. 23 Michael Ignatieff, “The duty to rescue,” The New Republic (24 September 2008), p. 41. 24 Alex Bellamy, A Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge: Polity Press, 2009), p. 89. 25 The Darfur Crisis: African and American Public Opinion, Globescan and the Program on International Policy Attitudes, 2005. Available at: http://www.pipa.org/OnlineReports/Africa/Darfur_Jun05/Darfur_ Jun05_rpt.pdf (accessed 18 October 2010). 26 See Frank Chalk, Roméo Dallaire, Kyle Matthews, Simon Doyle and Carla Barqueiro, Mobilizing the Will to Intervene: Leadership to Prevent Mass Atrocities (Montreal: McGill-Queen’s University Press, 2010), for the book version of the 2009 study. 27 Madeline K. Albright and William S. Cohen, Genocide Prevention Task Force, Preventing Genocide: A Blue Print for U.S. Policymakers (Washington, DC: United States Holocaust Memorial Museum, 2008). 28 Roméo Dallaire and Hugh Segal, “The teeth to prevent genocide,” Global Brief Magazine (13 October 2010). Available at http://globalbrief.ca/blog/2010/10/13/the-teeth-to-defeat-genocide/ (accessed 11 November 2010). 29 NATO 2020: Assured Security; Dynamic Engagement. Analysis and Recommendations of the Group of Experts on a New Strategic Concept for NATO (17 February 2010), 15. Available at: http://www.nato.int/strategicconcept/expertsreport.pdf (accessed 15 October 2010). 30 Ibid., 35. 31 Ernie Regehr, “The Canadian Forces and Peace Support Operations after 2011,” Presentation to the House of Commons Standing Committee on National Defence, 15 June 2010 (Project Ploughshares, Waterloo, Ontario). Available at: http://www.ploughshares.ca/libraries/Statements/ER brief to HC Nat Defence 15 June 10.pdf (accessed 14 December 2010). 32 For the US, see Theresa W. Gillespie and Christopher D. Hillyer, “Blood donors and factors impacting the blood donation decision,” Transfusion Medicine Reviews, 16, 2 (April 2002): 115–30 and American National Red Cross, “Give blood.” Available at: http://www.redcross.org/donate/give (accessed 15 May 2011). For Canada see Canadian Press, “Less than 4 per cent of Canadians donate blood,” 27 July 2006. Available at: http://ctv.ca/servlet/ArticleNews/ … /20060727 (accessed 15 May 2011). 33 For an overview of some of the threats mass atrocities can generate, see Frank Chalk, Roméo Dallaire, Kyle Matthews, Simon Doyle and Carla Barqueiro, Mobilizing the Will to Intervene, pp. 13–18. 34 Maurice Baril, “Future roles for the Canadian forces,” in Rethinking Canada’s International Priorities (Ottawa: University of Ottawa, 2010), p. 20. 35 Ibid., p. 20. 36 Ibid., p. 24. 37 Ibid., p.19. 38 Maurice Baril, “Future roles for the Canadian forces,” p. 24. 39 Ibid., p. 21. 40 Nima Abbasyadeh, Mark Crow, Marianne El-Khoury, Jonathan Gandomi, David Kuwayama, Christopher MacPherson, Meghan Nutting, Nealin Parker and Taya Weiss, “Provincial reconstruction teams: lessons and recommendations,” January 2008, a report from the Woodrow Wilson School of

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41 42 43 44

45 46 47 48 49 50 51

52 53 54 55

Public and International Affairs, Princeton University. Available at: http://wws.princeton.edu/ research/pwreports_f07/wws591b.pdf (accessed 10 January 2012). Ibid. Ibid. Ibid. General Stanley A. McChrystal, “commander’s initial assessment”, 30 August 2009. Available at http:// media.washingtonpost.com/wp-srv/politics/documents/Assessment_Redacted_092109.pdf, pp. 1–2, 1–3 (accessed 20 January 2011). Ibid. Ibid., pp. 2–12. Ibid. Ibid. Ibid., pp. 2–12–2–13. Ibid., pp. D-3–D-4. See press release from the Harvard Kennedy School of Government quoting the 2010 US Quadrennial Defense Review’s directive to the US Department of Defense. Available at: http://www.hks.harvard. edu/news-events/news/press-releases/pr-maro-may10 (accessed 10 January 2012). Ibid. Maurice Baril, “Future roles for the Canadian forces,” p. 24. See Chalk, Dallaire, Matthews, Doyle and Barqueiro, Mobilizing the Will to Intervene, pp. 13–18. Gareth Evans, The Responsibility to Protect, p. 229.

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4 THE RESPONSIBILITY TO REBUILD1 Albrecht Schnabel

Introduction The Responsibility to Rebuild is an integral component of the Responsibility to Protect (R2P), a concept developed, presented and promoted by the International Commission on Intervention and State Sovereignty (ICISS).2 The Commission’s report is built around three core responsibilities: A. The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk; B. The responsibility to react: to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention; and C. The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.3 Applied in a principled manner, these three responsibilities are meant to provide the most effective approach towards managing violent conflict and mass violence, before, during or after a crisis. The main intention of this approach is to prevent the occurrence of mass violence. If preventive efforts fail, more forceful responses are expected to halt violence, followed by commitments towards helping a society overcome its potential susceptibility to subsequent violence. The R2P concept stands or falls with the commitment of the international community towards upholding these three responsibilities. From its very inception, efforts to secure global support for the implementation of the Responsibility to Protect as a normative commitment and practical guidance among UN member states faced an uphill battle. This was not surprising in light of its implicit impositions on state sovereignty and the cost implications for those who would eventually be asked to provide the resources for its implementation. In the process the third leg of R2P, the Responsibility to Rebuild, has slowly been sacrificed in order to secure member states’ commitment to the first and second legs of R2P: prevention and reaction.4 Attempts were made to explain those political concessions as necessary to launch new institutional innovations to facilitate better coordination in post-conflict peacebuilding. However, they hardly justify compromising on a 50

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normative commitment to rebuilding war-torn societies, the integrity of R2P as a concept, norm and guiding principle, and the ambitious attempt to utilize R2P in order to substantially improve the international community’s ability and record of preventing and managing mass atrocities. Perhaps understandable from some member states’ perspectives, dropping the Responsibility to Rebuild from the R2P rhetoric makes it less unattractive and more acceptable to subscribe to the R2P agenda. Both prevention and reaction can be handled much more flexibly, benefiting from a cloud of vagueness and non-commitment, which is more difficult to apply to rebuilding tasks that are much more visible and obvious to those ready and willing to assist. While much of this chapter’s discussion will focus on conflict and post-conflict environments within relatively narrow R2P criteria, the evolving commitment to rebuilding in a R2P context is likely also a reflection of – and might have repercussions for – commitments to broader post-conflict peacebuilding and rebuilding agendas. This chapter will discuss post-conflict peacebuilding priorities, followed by an examination of the tensions between idealism and pragmatism reflected in the original ICISS Report’s discussion on rebuilding. It will then explore the motivations of UN member states to support the Responsibility to Rebuild and the stumbling blocks and opportunities on the path towards the consolidation of rebuilding as a norm in international behaviour. The concluding section calls for the continuation of efforts to strengthen normative commitments to the Responsibility to Rebuild and, as a consequence, the overall responsibility to protect.

A daunting task: post-conflict peacebuilding priorities Rebuilding a society scarred and torn apart by war and violence is a daunting task. Distrusted state institutions and a tormented and traumatized population face the difficult challenge of having to come together in (re)building a peaceful and stable post-war society. Material damage can be repaired relatively easily, provided that resources are available when and for as long as they are needed. As long as violence does not resume, it is only a matter of time until basic infrastructure is repaired, streets, bridges and schools are rebuilt and agricultural land is cleared of mines. However, rebuilding state structures and institutions is a much greater challenge. Government institutions from local to national levels need to be re-established and staffed with competent and trustworthy persons and, if necessary, supported for some time by international actors. Security institutions and other public services have to be recreated or constructed from scratch, particularly if they were directly implicated in violence committed before and during the conflict. Armed non-state groups as well as statutory forces and security services need to be integrated into post-war security institutions, requiring vetting and retraining. Those who have been disarmed and demobilized need to be integrated into civilian life. Good, effective and accountable political and security sector governance ideally need to take hold with new leaders who emerged untainted from the horrors of war. Good governance needs to be guided by the principles of participation, rule of law, transparency, responsiveness, consensus orientation, effectiveness and efficiency, and accountability. Peaceful channels for national dialogues and conflict management have to be created and sustained. Guided by – and ideally as an integral part of – a long-term security sector reform strategy, disarmament, demobilization and reintegration programmes, as well as transitional justice programmes, need to ensure that the violence and crimes committed directly or indirectly through the activities of the state and its security institutions will not be repeated.5 51

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The most difficult task lies in building a functioning society that allows its members to live in peace and stability. Sometimes society must be fundamentally reshaped in order to reach those objectives.6 Of course, the process of rebuilding post-war societies will benefit from new infrastructure, institutions, development and external assistance – above all monetary assistance. However, sustainable success will depend to an even greater extent on the ability to come to terms with the causes and dynamics of violence and the psychological scars of the survivors – including victims as well as perpetrators. Unfortunately, dealing with past violence is an enormous challenge that is often left to a later day in favour of quick-impact economic and infrastructure rebuilding projects. It can take considerable time to rebuild communities and inter- and intracommunal relations that are based on trust, a sense of security and a desire for constructive cooperation. While the past will be present for a very long time, there has to be growing faith in a common future. Finally, as pointed out as well by the ICISS Report, the factors that initially triggered, escalated and sustained violence need to be addressed. That also means removing – or substantially changing – the political, economic and cultural conditions that offered fertile ground for the onset, continuation and escalation of inter-personal and inter-group violence. However, action to alleviate root causes requires a thorough understanding of the factors and circumstances responsible for the ensuing violence. It has to draw on the knowledge and experience of all stakeholders in society. Effective mitigation and prevention measures must build on joint efforts to understand the reasons that have led to past violence, including both structural and direct violence. The ICISS Report discusses specific peacebuilding requirements in the areas of security, justice and reconciliation and economic development. It highlights five main protection tasks: the protection of minorities, security sector reform, disarmament, demobilization and reintegration, mine action and the pursuit of war criminals, all of which require extensive commitments by external parties.7 The ICISS Report not only discusses the tremendous task at hand in rebuilding a war-torn society, particularly in the aftermath of mass crime, but also the obstacles that stand in the way of international actors’ sustained, long-term peacebuilding engagements.

The Responsibility to Rebuild: torn between idealism and pragmatism The ICISS Report’s section on rebuilding highlights the close and interdependent relationship between prevention, reaction and rebuilding.8 It also points to rebuilding as an inherent and indispensable component of a continuum that ranges from prevention to reaction and from reaction to rebuilding, thus laying the ground for preventing future mass atrocities. If any of these components are missing, one could argue, the continuum is broken, while neither of those steps taken in isolation would suffice to put conflict-prone societies on a sustainable track towards peace and stability. Recalling a pivotal statement by the UN Secretary-General on the subject, the Report points to the fact that, in order [t]o avoid a return to conflict while laying a solid foundation for development, emphasis must be placed on critical priorities such as encouraging reconciliation and demonstrating respect for human rights; fostering political inclusiveness and promoting national unity; ensuring the safe, smooth and early repatriation and resettlement of refugees and displaced persons; reintegrating ex-combatants and others into productive society; curtailing the availability of small arms; and mobilizing the domestic and 52

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international resources for reconstruction and economic recovery. Each priority is linked to every other, and success will require a concerted and coordinated effort on all fronts.9 This is a formidable task and will not be achieved without major efforts and international commitment. The ICISS Report concludes that “[t]he message is clear. There is no substitute for a clear and effective post-intervention strategy.”10 The text of the ICISS Report defines the Responsibility to Rebuild in slightly vague terms as post-intervention obligations “to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.”11 Rebuilding activities take place after prevention has failed and reaction has taken place – in other words, as second-generation preventive activity.12 The Report seems to suggest that rebuilding efforts need to be seen as a follow-up to military intervention, rather than a stand-alone activity when neither prevention nor reaction has been attempted. While the text begins its discussion of the Responsibility to Rebuild with a focus on “peace building,” which signifies a much broader range of situations in which international engagement might be triggered, it immediately establishes the link to prior military intervention: [t]he responsibility to protect implies the responsibility not just to prevent and react, but to follow through and rebuild. This means that if military intervention action is taken – because of a breakdown or abdication of a state’s own capacity and authority in discharging its “responsibility to protect” – there should be a genuine commitment to helping to build a durable peace, and promoting good governance and sustainable development. Conditions of public safety and order have to be reconstituted by international agents acting in partnership with local authorities, with the goal of progressively transferring to them authority and responsibility to rebuild.13 We are left with the awkward feeling that rebuilding efforts are to take place only after a military intervention in response to humanitarian crises and the failure of the state to provide an adequate response. This is disturbing, particularly as the ICISS Report’s call for a responsibility to react clearly states that “coercive measures may include political, economic or judicial measures, and in extreme cases – but only extreme cases – they may also include military action.”14 The Report further argues that “[a]s a matter of first principles, in the case of reaction just as with prevention, less intrusive and coercive measures should always be considered before more coercive and intrusive ones are applied.”15 The application of less intrusive measures in no way reduces the broad range of post-conflict challenges that need to be addressed in numerous, if not all postconflict situations, regardless if an international military intervention has taken place or not. Over-emphasizing the causal relationship between rebuilding and prior military intervention may have been a strategic mistake by the authors of the ICISS Report. It bases a necessary and useful automatism between reaction and rebuilding on the extreme and rare occurrence of military intervention, without suggesting a similar automatism for cases with less coercive international responses to conflict and mass violence. Moreover, the ICISS Report remains vague in terms of the specific objectives and targets of post-conflict rebuilding commitments. On the one hand, it recognizes that “[e]nsuring sustainable reconstruction and rehabilitation will involve the commitment of sufficient funds and resources and close cooperation with local people, and may mean staying in the country for some period of time after the initial purposes of the intervention have been accomplished.”16 53

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On the other hand, it does not define those “initial purposes of the intervention.” If these refer to the establishment of conditions for a negative peace as a first step towards longer term positive peace, then international commitment will have to be rather substantial, despite the unpredictability of such efforts in terms of duration, cost and impact – an unpopular prospect for most potential peacebuilders. The Report’s recognition of the international community’s poor performance of the past finds expression in the statement that “[t]oo often in the past the responsibility to rebuild has been insufficiently recognized, the exit of the interveners has been poorly managed, the commitment to help with reconstruction has been inadequate, and countries have found themselves at the end of the day still wrestling with the underlying problems that produced the original intervention action.”17 These observations still hold today, more than ten years after the ICISS’s deliberations have taken place. There are further inconsistencies in the ICISS Report, which might have weakened the case for the R2P principle of a Responsibility to Rebuild when translated into practise by UN member states. For instance, while the Report argues that the responsibility to protect “is fundamentally a principle designed to respond to threats to human life,” it is “not a tool for achieving political goals such as greater political autonomy, self-determination, or independence for particular groups within the country (though these underlying issues may well be related to the humanitarian concerns that prompted the military intervention).”18 The report further argues that “[t]he intervention itself should not become the basis for further separatist claims.”19 In reality, however, mass violence might have been triggered by self-determination movements or might – quite understandably from the perspective of the victim community – trigger calls for separation and self-determination. Yet such logic is dangerous for a political document that aspires to be adopted by an organization that represents the global community of states, many of which will be keen on avoiding any further softening of their inviolable sovereign rights. The ICISS Report itself seems to suggest that truly effective and sustainable post-conflict peacebuilding might be an altogether unrealistic concept. In discussing cases that might call for the imposition of UN administrations or trusteeships, the Report cautions that “[t]he strongest argument against the proposal is probably practical: the cost of such an operation for the necessarily long time it would take to recreate civil society and rehabilitate the infrastructure in such a state.”20 The Report further notes that “[t]here must be real doubts about the willingness of governments to provide those kinds of resources, other than on a very infrequent and ad hoc basis.”21 It points to yet another interesting dynamic of post-conflict involvement that might eventually weaken intervening nations’ support for R2P commitments at the front end of the principle (prevention and reaction). It argues: The longer a follow-up period continues, the greater the financial and material drain it may prove to be on the intervening states, unless they are among the richer developed countries. Even then, follow-up with no light at the end of the tunnel may prove to be a major disincentive for such countries to become involved in future exercises of the responsibility to protect, regardless of how worthy they might be. The balance to be struck between the long-term interests of the society and state where an intervention takes place and those of the interveners themselves can end up being a fine one.22 As the ICISS Report argues, activities dedicated to rebuilding a society after war and mass violence need to be sustainable, whereas this sustainability needs to be achieved by the local actors themselves. In fact, “[t]he long-term aim of international actors in a post-conflict situation is ‘to do themselves out of a job.’”23 Thus, “the responsibility to rebuild, which derives from the obligation to react, must be directed towards returning the society in question to those who live 54

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in it, and who, in the last instance, must take responsibility together for its future destiny.”24 However, who decides on the right moment at which a society is supposedly able to take responsibility for their future destiny? At the same time, the Report calls on the conscience of the international community to stay engaged: “To see an intervention through means as well that the intervening side has to be prepared to remain engaged during the post-intervention phase as long as necessary in order to achieve self-sustained stability. Coalitions or nations act irresponsibly if they intervene without the will to restore peace and stability, and to sustain a post-intervention operation for as long as necessary to do so.”25 There seem to be inherent contradictions within the Report as to necessity and feasibility of long-term engagement. On the one hand, it is paramount to stay engaged, while on the other hand, this carries the danger of dissuading the international community from future commitments. In the end, as any other activity, rebuilding a war and violence-torn society carries costs and generates benefits for both the affected society and the external actors attempting to assist in this process. It goes without saying that the greatest benefit of successful rebuilding is the establishment of a peaceful society in which community building, development and prosperity become a real possibility. In most if not all such cases external actors must provide the brunt of financial, human and material resources required to successfully achieve rebuilding objectives. Yet they will not sacrifice their own resources if they are driven only by moral concerns; a broad range of motivations must guide their actions.

Motivations for a Responsibility to Rebuild: not an entirely selfless task While the task “to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert,”26 comes at great human, financial and political cost, it is not an entirely selfless one. What are the motivations for those investing in post-war recovery efforts? As an international community of states, members must respond with indignation and a sense of solidarity to large-scale injustice and human suffering occurring within the borders of a fellow member state. This reflects a moral duty that covers situations beyond those strictly defined as threats to international peace and security. It also reflects the main tenor of the discussions that guided the work of the ICISS on what would emerge as the R2P concept. Beyond moral concern, what makes external actors become involved and remain committed to the protection of populations from large-scale violence? A powerful motivation is self-interest. When access to important resources is jeopardized by violent conflict or irresponsible and unpredictable government elites, when weak and failed states allow terrorist or criminal networks to grow and prosper, when evolving crises threaten to trigger major population movements or violence threatens to spill across borders to destabilize an entire region, it is in the interest of those states who are potentially affected to take action. In those situations, in cases where international actors have responded to violent conflict with peacekeeping or peacesupport operations, such investments make sense only if followed up with post-conflict commitments. Moreover, in those situations it is not a question of getting involved or not, but rather of not retreating before mission objectives are accomplished. Furthermore, mass media coverage of a crisis might generate public pressure in donor nations to send humanitarian missions or military assistance to stop the escalation of violence or to create humanitarian corridors for humanitarian NGOs and INGOs who might be standing by to help. In addition, states are expected to comply with existing legal obligations to deter and stop genocides. In fact, the ICISS Report shows that the responsibility to protect draws primarily on already existing principles, norms and legal frameworks.27 These 55

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reasons, among others, initiate and sustain international involvement for “human protection purposes.”28 However, what happens if the threats that triggered international interest and political commitment are contained, if self-interest-based external involvement is about to cease and rebuilding tasks are all too eagerly handed over to local and national actors, while the state and society concerned lack the capacity or willingness to accept their own responsibility for maintaining peace?29 Perhaps it is mainly this fundamental doubt about the international community’s long-term commitment to rebuilding that eventually led to the emerging reluctance to sideline the Responsibility to Rebuild, as in the 2005 World Summit adoption of the R2P principles. In summary, a global conscience of humankind, expressed through international norms and principles and embodied by the United Nations as the only global organization dedicated to peace and security, implies commitment to the moral imperative of preventing mass violence. Yet, while humanitarian and moral arguments might make solid headlines, they are not by themselves powerful enough to convince international actors of the necessity to invest in longterm rebuilding projects similar to the magnitude of ongoing engagements in Bosnia-Herzegovina, Kosovo, Afghanistan or Iraq. In fact, as the ICISS Report suggests, such long-term commitments with no apparent end in sight might discourage the international community from considering assistance for similar rebuilding missions in the future.30 At worst, particularly if the integrity of the prevention–reaction–rebuilding continuum is to be maintained, it might cause international actors to stay away from involvement altogether.

Obstacles to an emerging Responsibility to Rebuild If we downplay the Responsibility to Rebuild, we cancel out a major incentive for preventive activity. What could be a more powerful argument for the initiation of preventive activity than the grim prospects of having to intervene in the midst of a violent conflict and rebuild a society torn apart by war and violence at significantly higher political, economic and human costs? Yet the Responsibility to Rebuild has been dropped from the UN’s commitment to R2P, at least as expressed in the 2005 World Summit Outcome Report. It seems that an organic mechanism that made perfect sense was politicized in its application to the point where much of its idealism and normative power have been abandoned. Let us briefly review what happened. The Peacebuilding Commission (PBC) was created after the launching of the ICISS Report. Both the PBC and R2P were discussed and adopted by the same 2005 World Summit of UN member states. The World Summit 2005 Outcome document “conspicuously omitted the Responsibility to Rebuild aspect from the ICISS report.”31 However, it did emphasize the Responsibility to Prevent: “Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means.”32 It also noted the objectives of the responsibility to react, which include: … appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, 56

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should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.33 Extending Chapters VI, VII and VIII to acts of genocide, war crimes, ethnic cleansing and crimes against humanity is by no means a small step and must be appreciated (although it remains to be seen if the Security Council and regional organisations will act accordingly in a principled manner). In addition, compared to the ICISS Report of 2001 and the High-level Panel Report of 2004, the World Summit Outcome document of 2005 strengthened both the prevention and reaction agendas, by dropping the initial precautionary principles and legitimacy criteria34 and promising a more decisive and forceful response.35 However, the fact that the Responsibility to Rebuild was dropped from this otherwise courageous effort in progressive norms creation puts a damper on this achievement. UN Secretary-General Ban Kimoon’s rendering of this downsized approach to R2P was outlined in his report “Implementing the Responsibility to Protect” from 12 January 2009.36 His three-pillar strategy was designed to advance the agenda mandated by the Heads of State and Government at the Summit, namely: (1) “the protection responsibilities of the State,” (2) “international assistance and capacitybuilding,” and (3) “timely and decisive response” to prevent and halt genocide, ethnic cleansing, war crimes and crimes against humanity.37 His approach was also meant to pave the way for operationalizing R2P. According to some observers, “[i]t was speculated that the omission of the responsibility to rebuild from the Responsibility to Protect in the 2005 World Summit stemmed from the creation of the PBC [Peacebuilding Commission] by Member States, which provided a framework and a mechanism at the UN for addressing rebuilding.”38 However, why should one (experimental) instrument that would help implement the Responsibility to Rebuild be the reason for abandoning the much larger, more important norm? Why would the international community of states be voluntarily released from one of the three key responsibilities that together – and only together – make sense? Commitment to the responsibility to prevent should lead to functioning and effective early warning and preventive instruments at the UN and global levels; the responsibility to react should trigger the creation of institutionalized threshold mechanisms to assure timely and effective response; and the Responsibility to Rebuild should result in the creation of rebuilding mechanisms such as the Peacebuilding Commission. The introduction of one instrument should not justify abandoning an underlying norm that should ideally inspire the emergence of other such mechanisms that could assist in upholding the Responsibility to Rebuild. Institutional arrangements come and go, but norms assure the survival of broadly supported values and principles in spite of ever-fluctuating international debates, legal challenges and political preferences. UN member states’ cautions about the Responsibility to Rebuild can be explained in a number of ways. First, focusing on an “easy way out” by committing to prevention and reaction, resulting in few actual obligations and even less subsequent action, fraught with the usual political squabbling and skilfully ambiguous diplomatic activity, provides a more comfortable approach to embracing R2P. Second, the fear of the tremendous costs attached to a rebuilding commitment – and possibly a failure to fully appreciate the significance of the ability to prevent an escalation and recurrence of violence – will make the Responsibility to Rebuild a very hard sell. Third, there might be reasonable worries that a “rebuilding commitment” could quickly and uncontrollably evolve into applications outside strict R2P contexts (i.e. the prospect or presence of grave humanitarian disasters, mass violence and as a follow-up to prior military intervention) and might thus trigger a great multitude of lengthy post-conflict quagmires. These are all reasonable causes for member states’ reluctance to embrace wholeheartedly a 57

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Responsibility to Rebuild, which, given the visible and undeniable damage caused by conflict, would be expected to be much more readily translated into a concrete set of actions than their preventive and reactive “forerunners.” In light of these objections to committing to a Responsibility to Rebuild, let us recall the main disadvantages of dropping rebuilding from the R2P agenda. First, the prevention– reaction–rebuilding continuum has been violated and cannot persist in the absence of a normative commitment to a responsibility to rebuild. Second, devaluing the responsibility to rebuild and, thus, putting less emphasis on its operational value for R2P devalues the case for post-conflict rebuilding and root cause alleviation. This subsequently means a greater risk of conflict resurgence, as well as of growing cynicism about the value of R2P overall, particularly in those societies that would potentially benefit from its operationalization. Third, the lack of a post-conflict rebuilding “threat” (the mere prospect of having to rebuild a society torn apart by war and mass violence) removes significant incentives for prevention and early reaction. Fourth, removing the responsibility to rebuild from the R2P jargon and debate constitutes a missed opportunity for engaging in a most useful “speech act” – and the opportunity to introduce a new tool to rally quick, effective and sustainable global responses.39 While it did not necessarily come as a surprise that the member states would not endorse a Responsibility to Rebuild, compromising so quickly on a critical part of the original R2P principle might in the long run prove to be an unfortunate and regrettable historical mistake. Perhaps the time had not come for R2P in 2005. Perhaps it would have been worth waiting. Still, the pragmatist would consider the partial adoption of R2P (and even that accomplishment has been criticized by those who opposed any reference to R2P in the World Summit Outcome document) a success worth celebrating. Still, it would be a mistake to paint too bleak a picture of R2P’s potential. The Commission’s recommendations did not vanish into thin diplomatic air. The High-level Panel and SG Reports picked up on the idea of a responsibility to prevent and react.40 The Peacebuilding Commission is seen by many member states as a useful instrument to implement the main rebuilding aspects of the R2P norm, while serving a much broader post-conflict peacebuilding agenda.41 Surely, having created the Peacebuilding Commission is a good start. Member states that are serious about the rebuilding norm are also calling for strengthening the Peacebuilding Support Office (PBSO) or regional organizations “such as the AU Framework for Post-Conflict Reconstruction and Development to complement the work that the PBC is doing.”42 One can also argue that the omission of the rebuilding commitment was the price to pay for commitment to the prevention and reaction aspects of R2P. Waiting for a later opportunity to table R2P at that level might have meant shelving it forever. Empowered by the World Summit’s recognition of parts of R2P, institutions such as the R2P Alliance, the Global Centre for R2P, as well the Secretary-General’s genocide and R2P advisers can focus on a subject that is officially on the UN agenda. In those terms, perhaps, dropping the Responsibility to Rebuild has been a comparatively small price to pay in return for getting R2P included at all. Moreover, international involvement in ongoing post-conflict situations does provide ample impressions of the cost incurred by the failure to prevent violence. Perhaps this will be an incentive for preventive action. However, it remains to be seen if those experiences lead to increased commitment to prevention or, quite to the contrary, they simply highlight and underscore the cynical interpretation of post-conflict work as a bottomless pit. Afghanistan or Iraq could trigger greater preventive commitment, but they could also trigger greater indifference to conflict and post-conflict environments. 58

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Looking ahead: bringing the Responsibility to Rebuild back on the agenda The Responsibility to Rebuild stands for a commitment to second-generation prevention and thus entails a responsibility to consolidate and maintain negative peace; to alleviate structural violence and create the conditions for positive peace; and, thus, prevent the recurrence of past violence. Yet such a commitment is still lacking. However, setbacks often have positive aspects: resistance to an emerging norm of a Responsibility to Rebuild might in the long run generate heated but necessary discussions about the extent to which the international community of states is responsible for preventing the recurrence of mass violence and, in broader terms, for rebuilding post-war states. This healthy debate might not have continued at the same level if the World Summit Outcome document had included a clearly spelt-out, but barely supported, commitment to the Responsibility to Rebuild. We need to engage in discussions on who rebuilds when and how: What needs to be rebuilt? What does it take, on the part of both national and international actors, to trigger motivation, interest and commitment to invest in rebuilding war-torn societies, with or without prior military intervention, and within and beyond strict R2P criteria? Who assists in facilitating the consolidation of rebuilding efforts once the bulk of international involvement has ended? Who plays which role in the various stages of rebuilding? How do we move towards a local, national and international ‘rebuilding contract’ or compact, with provisions for the beneficiary population to hold peacebuilding agents accountable to their promises and actions? Can we speak of R2P as a potentially paradigmatic and groundbreaking shift in international policy-making and norm creation? One of the ICISS’s main reasons for moving from the previous concept of humanitarian intervention to a responsibility to protect was the expectation that the latter would be embedded in human solidarity, while the former was mainly determined by intervening states’ rights and privileges. However, commitment to human solidarity rests on a commitment to the prevention–reaction–rebuilding continuum, which is compromised if any of these components are dropped. Thus, if judged by the international community of states’ weak support for a globally recognized Responsibility to Rebuild after violence and mass crime, we cannot observe a paradigmatic shift on the peacebuilding horizon. Was it reasonable to expect such a paradigmatic shift? Perhaps not. Generating the required political support to secure a comprehensive and principled commitment to the prevention, response and rebuilding continuum would have been a major, perhaps impossible, challenge ahead of and during the 2005 World Summit. However, despite doubts about R2P’s eventual application in practice, as voiced in the ICISS Report and experienced during subsequent attempts at anchoring it in international policy practice, the original idea of R2P remains a novel, sensible and potentially highly valuable contribution to peace, stability and human security. We would thus be well advised to continue our efforts in bringing about the international community’s eventual willingness to adopt and implement all three components of R2P, including the Responsibility to Rebuild – in practice and, eventually, as an internationally recognized norm.

Notes 1 The author wishes to thank Marc Krupanski for background research and valuable comments during the preparation of this chapter. He is grateful to Ramesh Thakur for feedback on a draft version from the perspective of an ICISS member and as a keen observer of the evolution of R2P in theory and practice. 2 International Commission on Intervention and State Sovereignty [ICISS], The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, Ottawa: International Development Research Centre, December 2001 [in subsequent references referred to as the ICISS Report].

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3 Ibid., p. xi. 4 United Nations General Assembly, 2005 World Summit Outcome, UN Document A/60/L.1, New York: United Nations, 20 September 2005, paras. 138–40. 5 For a recent assessment of the roles and record of security sector reform in post-conflict environments, see Hans Born and Albrecht Schnabel, eds., Security Sector Reform in Challenging Environments, Münster: LIT, 2009. 6 See, for instance, Simon Chesterman, Béatrice Pouligny and Albrecht Schnabel, eds., After Mass Crime: Rebuilding States and Communities, Tokyo: United Nations University Press, 2007. See also, for instance, Alexander Gheciu and Jennifer Welsh, “The Imperative to Rebuild: Assessing the Normative Case for Postconflict Reconstruction,” Ethics and International Affairs, Vol. 23, No. 2, Summer 2009, pp. 121–46; or Béatrice Pouligny, “Civil Society and Post-Conflict Peacebuilding: Ambiguities of International Programmes Aimed at Building ‘New’ Societies,” Security Dialogue, Vol. 36, No. 4, December 2005, pp. 495–510. 7 International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Ottawa: International Development Research Centre, 2001, paras. 7.42–47.49. 8 Ibid., paras. 5.1–5.31. 9 The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa: Report of the UN Secretary-General, UN Document A/64/210, New York: United Nations, 16 April 1998; cited in ICISS, The Responsibility to Protect, para. 5.6. 10 Ibid. 11 Ibid., p. xi. 12 For a discussion of second-generation prevention, see Albrecht Schnabel, “Post-Conflict Peacebuilding and Second-Generation Preventive Action,” International Peacekeeping, Vol. 9, No. 2, Summer 2002, pp. 7–30. 13 ICISS, The Responsibility to Protect, para. 5.1. 14 Ibid., para. 4.1. 15 Ibid. 16 Ibid., para. 5.2. 17 Ibid. 18 Ibid., para. 5.23. 19 Ibid. 20 Ibid., para 5.24. 21 Ibid. 22 Ibid., para. 5.29. 23 Ibid., para. 5.31. 24 Ibid. 25 Ibid., para. 7.40. 26 Ibid., p. xi. 27 Ibid., paras. 6.2–6.12. 28 Ibid., p. vii. 29 Ibid., paras. 5.25–5.31. 30 Ibid., para. 5.29. 31 International Coalition for the Responsibility to Protect, RtoP and Rebuilding: The Role of the Peacebuilding Commission, available at: http://www.responsibilitytoprotect.org/index.php/about-rtop/relatedthemes/2417-pbc-and-rtop (accessed 10 January 2012). 32 United Nations General Assembly, 2005 World Summit Outcome, UN Document A/60/L.1, New York: United Nations, 20 September 2005, para. 138. 33 Ibid., para. 139. 34 High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, Geneva: The United Nations, 2004, p. 13. The report states: “[t]hat force can legally be used does not always mean that, as a matter of good conscience and good sense, it should be used.” The five criteria of legitimacy that the Security Council should always address in considering “whether to authorize or endorse military force” include seriousness of threat, proper purpose, last resort, proportional means and balance of consequences (para. 207). 35 The World Summit Outcome document states that “[i]n this context, we are prepared to take collective action, in a timely and decisive manner” (para. 139). At the same time, however, compared to earlier documents the circumstances for intervention have been narrowed and a qualifying criterion of “manifest failure” has raised the bar for external involvement.

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36 Implementing the Responsibility to Protect: Report of the Secretary-General, UN Document A/63/677, New York: United Nations, 12 January 2009. 37 Ibid., para. 11. Pillar one is further elaborated in paras. 13–27, pillar two in paras. 28–48, and pillar three in paras. 49–66. 38 International Coalition for the Responsibility to Protect, RtoP and Rebuilding. 39 Alex J. Bellamy, “The Responsibility to Protect: Five Years On,” Ethics and International Affairs, Vol. 24, No. 2, Summer 2010, p. 159; and Eli Stamnes, “‘Speaking R2P’ and the Prevention of Mass Atrocities,” Global Responsibility to Protect, Vol. 1, No. 1, 2009, p. 77, as cited in Bellamy, “The Responsibility to Protect,” p. 159. 40 Report of the Secretary-General on Peacebuilding in the Immediate Aftermath of Conflict, A/64/866-S/2010/ 386, New York: United Nations, 16 July 2010. 41 See also Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All, Washington, DC: Brookings Institution Press, 2008, p. 149. 42 International Coalition for the Responsibility to Protect, Report on the General Assembly Plenary Debate on the Responsibility to Protect, New York: ICRtoP, 15 September 2009, p. 9.

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Albrecht Schnabel Evans, Gareth and Mohamed Sanhoun, “The Responsibility to Protect,” Foreign Affairs, Vol. 81, No. 6, November/December 2002, pp. 99–110. Fienstein, Lee, “Darfur and Beyond: What is Needed to Prevent Mass Atrocities,” Council on Foreign Relations CSR, No. 22, January 2007. Fiott, Daniel, “The ‘Responsibility-to-Protect’: Sovereignty, Political Will and Capabilities,” European Security Review, No. 39, International Security Information Service, July 2008. Gheciu, Alexander and Jennifer Welsh, “The Imperative to Rebuild: Assessing the Normative Case for Postconflict Reconstruction,” Ethics and International Affairs, Vol. 23, No. 2, Summer 2009, pp. 121–46. Global Centre for the Responsibility to Protect, Implementing the Responsibility to Protect – The 2009 General Assembly Debate: An Assessment, GCR2P Report, August 2009. Gya, Giji, Daniel Fiott and Lisa Vainio, “Responsibility to Rebuild – Guinea-Bissau,” ISIS Briefing Note 2008: 1, European Security Review, No. 41, International Security Information Service, November 2008. Hamilton, Rebecca J., “The Responsibility to Protect, from Document to Doctrine: But What of Implementation?,” Harvard Human Rights Journal, Vol. 19, Spring 2006, pp. 289–97. High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, Geneva: The United Nations, 2004. Holt, Victoria K., The Military and Civilian Protection: Developing Roles and Capacities, Humanitarian Policy Group Briefing Paper 22, March 2006. Holt, Victoria K. and Tobias C. Berkman, The Impossible Mandate? Military Preparedness, the Responsibility to Protect and Modern Peace Operations, Washington, DC: The Henry L. Stimson Center, 2006. Holzgrefe, J. L. and Robert O. Keohane, eds., Humanitarian Intervention: Ethical, Legal and Political Dilemmas, Cambridge: Cambridge University Press, 2003. International Coalition for the Responsibility to Protect, “RtoP and Rebuilding: The Role of the Peacebuilding Commission,” available at: http://www.responsibilitytoprotect.org/index.php/about-rtop/relatedthemes/2417-pbc-and-rtop (accessed 11 January 2012). ——Report on the General Assembly Plenary Debate on the Responsibility to Protect, New York: International Coalition for the Responsibility to Protect, 15 September 2009, available at http://responsibilitytoprotect. org/ICRtoPGAdebate.pdf (accessed 31 January 2012). International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Ottawa: International Development Research Centre, 2001. Kioko, Ben, “The Right of Intervention Under the African Union’s Constitutive Act: Non-Interference to Non-Intervention,” International Review of the Red Cross, Vol. 85, No. 852, December 2003, pp. 807–25. Knight, W. Andy, “DDR and SSR in Post Conflict Peace-Building in Africa: An Overview,” African Journal of Political Science and International Relations, Vol. 4, No. 1, January 2010, pp. 29–54. Levitt, Jeremy I., “Pro-Democratic Intervention in Africa,” Wisconsin International Law Journal, Special Issue on Humanitarian Intervention after 9/11, Vol. 24, No. 3, Fall 2006, pp. 785–834. ——“The Responsibility to Protect: A Beaver Without a Dam?,” Michigan Journal of International and Comparative Law, Vol. 25, No. 1, December 2003, pp. 153–77. MacFarlane, Neil and Foon Khong Yuen, Human Security and the UN: A Critical History, Bloomington: Indiana University Press, 2006. Malone, Linda A., “The Responsibility to Protect Haiti,” ASIL Insight, American Society of International Law, Vol. 14, No. 7, 10 March 2010. Mepham, David and Alexander Ramsbotham, Safeguarding Civilians: Delivering on the Responsibility to Protect in Africa, London: Institute for Public Policy Research, 2007. Mirithi, T., “The Responsibility to Protect as Enshrined in Article 4 of the Constitutive Act of the African Union,” Conflict Prevention and the “Responsibility to Protect” in Africa?, ISS Africa, African Security Review, Vol. 16, No. 3, 2007. Morada, Noel, R2P Roadmap In Southeast Asia: Challenges and Prospects, UNISCI Discussion Papers, No. 11, May 2006, pp. 59–70. Newman, Edward and Albrecht Schnabel, eds., Recovering from Civil Conflict: Reconciliation, Peace and Development, London: Frank Cass, 2002. Pace, William R. and Nicole Deller, “Preventing Future Genocide: A Responsibility To Protect,” World Order, Vol. 36, No. 4, 2005, pp. 15–30. Policekeeping Approach, Global Governance: A Review of Multilateralism and International Organizations, Vol. 11, No. 2, April–June 2005, pp. 139–47.

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The Responsibility to Rebuild Pouligny, Béatrice, “Civil Society and Post-Conflict Peacebuilding: Ambiguities of International Programmes Aimed at Building ‘New’ Societies,” Security Dialogue, Vol. 36, No. 4, December 2005, pp. 495–510. Pouligny, Béatrice, Simon Chesterman and Albrecht Schnabel, eds., After Mass Crime: Rebuilding States and Communities, Tokyo: United Nations University Press, 2007. Powell, Kristiana, The African Union’s Emerging Peace and Security Regime: Opportunities and Challenges for Delivering on The Responsibility to Protect, NSI Working Paper, Ottawa: The North–South Institute, May 2005, available at: http://www.nsi-ins.ca/english/pdf/NSI_AU_R2P_Working_Paper_May_05.pdf (accessed 31 January 2012). Powell, Kristiana and Stephen Barani, Delivering on the Responsibility to Protect in Africa, NSI Policy Brief, Ottawa: The North–South Institute, October 2005. Puley, Greg, The Responsibility to Protect: East, West, and Southern African Perspectives on Preventing and Responding to Humanitarian Crises, Ploughshares Working Paper 05–5, Waterloo: Project Ploughshares, September 2005, available at: http://www.responsibilitytoprotect.org/files/ploughshares.pdf (accessed 31 January 2012). Report of the Peacebuilding Commission on its Third Session, UN Document A/64/341-S/2009/444, New York: United Nations, 8 September 2009. Report of the Secretary-General on Peacebuilding in the Immediate Aftermath of Conflict, UN Document A/64/ 866-S/2010/386, New York: United Nations, 16 July 2010. Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad, UN Document S/2010/409, New York: United Nations, 30 July 2010. Rietjens, Sebastiaan J. H. and Myriame T. I. B. Bollen, eds., Managing Civil–Military Cooperation: A 24/7 Joint Effort for Stability, Hampshire: Ashgate Publishing, 2008. Rippon, Thomas, “Leadership for a Sustainable Culture of Peace: The UN Mission in East Timor,” Canadian Military Journal, Vol. 5, No. 3, Autumn 2004, pp. 57–62. Schnabel, Albrecht, “Democratization and Peacebuilding,” in Amin Saikal and Albrecht Schnabel, eds., Democratization in the Middle East: Experiences, Struggles, Challenges, Tokyo: United Nations University Press, 2003, pp. 25–41. ——“Post-Conflict Peacebuilding and Second-Generation Preventive Action,” International Peacekeeping, Vol. 9, No. 2, Summer 2002, pp. 7–30. Schnabel, Albrecht and Hans-Georg Ehrhart, eds., Security Sector Reform and Post-Conflict Peacebuilding, Tokyo: United Nations University Press, 2005. Schnabel, Albrecht and Nika Strazisar, “Conflict Prevention in the Former Yugoslavia: Missed Opportunities and Lessons for Post-Conflict Peacebuilding,” in Hans-Georg Ehrhart and Albrecht Schnabel, eds., The Southeast European Challenge: Ethnic Conflict and the International Response, Baden-Baden: Nomos, 1999, pp. 197–213. Strauss, Ekkehard, The Emperor’s New Clothes? The United Nations and the Implementation of the Responsibility to Protect, Baden-Baden: Nomos Verlagsgesellschaft, 2009. Thakur, Ramesh, The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect, Cambridge: Cambridge University Press, 2006. United Nations General Assembly, 2005 World Summit Outcome, UN Document A/60/L.1, New York: United Nations, 20 September 2005. Valention, Benjamin, “The Perils of Limited Humanitarian Intervention: Lessons from the 1990s,” Wisconsin International Law Journal, Special Issue on Humanitarian Intervention after 9/11, Vol. 24, No. 3, Fall 2006, pp. 723–40. Warner, Daniel and Gilles Giacca, “The Responsibility to Protect,” in Vincent Chetail, ed., Post-Conflict Peacebuilding: A Lexicon, Oxford: Oxford University Press, 2009, pp. 291–305. Weiss, Thomas G., Humanitarian Intervention: War and Conflict in the Modern World, Cambridge: Cambridge University Press, 2007. ——Military–Civilian Interactions: Humanitarian Crises and the Responsibility to Protect, 2nd edition, New Millennium Books in International Studies, Lanham, MD: Rowman & Littlefield Publishers, 2004. Wong, Jarrod, “Reconstructing the Responsibility to Protect in the Wake of Cyclones and Separatism,” Tulane Law Review, Vol. 84, No. 2, December 2009, pp. 219–63. Zaalberg, Thijs W. Brocades, “Countering Insurgent-Terrorism: Why NATO Chose the Wrong Historical Foundation for CIMIC,” Small Wars and Insurgencies, Vol. 17, No. 4, December 2006, pp. 399–420.

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5 THE CHALLENGES FACING R2P IMPLEMENTATION Robert W. Murray

Prior to 2001, the concept of security in an international context was undergoing a major alteration due to the idealism that pervaded in the wake of the Cold War. Throughout the years of the bipolar conflict between the US and Soviet Union, security assessments centred predominantly on issues such as nuclear arms, interstate threat evaluations, and national militaries. With the fall of the Soviet Union came a sense that it was time for security discourse to expand beyond the limits of Cold War security issues to become more broadly understood and include non-state variables and actors. A major contribution to this departure from a state-centric security debate, which reflects some of the calls for change in the post-Cold War security debate, is the Responsibility to Protect (R2P) doctrine. Though states, self-interest, and security are all included in the tenets of R2P, they are creatively redefined and altered to account for the more complex global security environment seen today. The R2P doctrine has proposed methods that that would fundamentally alter the understanding of security in modern international society, as well as how various global stakeholders approach the issue. In accordance with the tenets of R2P, conceiving of security at the international level as being strictly statist is far too narrow to have relevance in the modern era. Instead, R2P seeks to put a human face on global security matters, and centres more on the protection of individuals within states. According to the International Commission on Intervention and State Sovereignty (ICISS), states, under the legal direction of the United Nations, have an obligation to enforce three major provisions for the safety of humanity across the globe: the responsibility to prevent the outbreak of humanitarian disaster, the responsibility to intervene and protect populations if mass atrocities were being perpetrated, and the responsibility to rebuild should they occur.1 While international society took notice of the initial 2001 report, the proposed changes to issues, including state sovereignty, the role of the United Nations in enforcing human security provisions, and post-conflict rebuilding, were all questioned by nations, especially by two groups in particular: the great powers who would likely incur the bulk of the costs in R2P-sanctioned missions, and some of those nations in the Global South that would likely become the recipients of R2P in the future. By 2005, the R2P had reached the United Nations agenda and was open for a more international debate. Leading global figures such as Canadian Prime Minister Paul Martin lobbied for the United Nations to adopt R2P and offer hope to those in areas experiencing human rights abuses.2 What became evident in 2005 was that the states were not entirely prepared to sacrifice 64

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their independence and the idea of Westphalian sovereignty in the name of human security. Due to their continued preference for traditional understandings of sovereignty, states affirmed certain portions of the R2P in principle only in the 2005 World Summit Outcome document. The Outcome document outlines four key areas when interventionism may be a legitimate option: genocide, war crimes, ethnic cleansing, and crimes against humanity.3 The 2005 version of R2P adopted by the United Nations does not call for legal changes to the meaning of sovereignty nor does it affirm the responsibility of international society to intervene in every case where human rights are being abused. Thus Alex Bellamy laments that “the responsibility to protect statement in the outcome document has done little to increase the likelihood of preventing future Rwandas and Kosovos … in order to secure consensus, the concept’s advocates have abandoned many of its central tenets, significantly reducing the likelihood of progress in the near future.”4 Since the issuing of the 2005 version of R2P, nations have yet to operationalize and implement the provisions of the doctrine on any widespread or consistent scale. One must wonder why this is the case, particularly when in the summer of 2009, the members of the UN General Assembly reaffirmed their support for R2P.5 This chapter will seek to outline some of the major reasons why this might be so. These are: the structure of modern international politics; the limitations of the United Nations system; the debate over the universality of R2P’s underlying assumptions; and the problem of costs. By exploring each of these issues, the likely insurmountable challenges R2P operationality faces can be better recognized.

The structure of international politics As it currently stands, international politics are still defined by one driving characteristic – the anarchic nature of the international system. Since the end of the Cold War, the world has witnessed progress in the development of human-centred norms, but the underlying structure of interstate relations remains. Because of anarchy, states act in ways that will maximize payoffs and benefits, and limit any impact upon their national security interests. This fundamental structure of international politics is a major problem for R2P advocates. It is essential for those wishing to implement R2P to overcome some of the effects of anarchy on state foreign policy strategy. In his description of what anarchy means to politics at the international level, Kenneth Waltz argues: In anarchy there is no automatic harmony. … A state will use force to attain its goals if, after assessing the prospects for success, it values those goals more than it values the pleasures of peace. Because each state is the final judge of its own cause, any state may at any time use force to implement its policies. Because any state may at any time use force, all states must constantly be ready either to counter force with force or to pay the cost of weakness. The requirements of state action are, in this view, imposed by the circumstances in which all states exist.6 States recognize, and actually prefer, the anarchic international system. This explains why states take steps to ensure the continued survival of the international system and have not made major overtures toward developing a substantive alternative. Instead, states have focused on foreign policy strategies that aim to guarantee their survival in the anarchic system. Barry Buzan, Charles Jones, and Richard Little describe how the structure of the system is maintained by states. By making agreements with each other, “states explicitly confirm each other’s sovereignty and therefore actively help to reproduce the deep structure of the system. Treaties and acts of 65

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cooperation all intentionally serve to reconfirm and reproduce the anarchic system of independent states.”7 Rules such as independence, non-intervention, and the legal standing of Westphalian sovereignty have traditionally been guaranteed in various international charters, covenants, and agreements, and until these are overhauled and altered, anarchy and its effects will continue to hinder efforts to apply R2P. A second variable in describing why states have proven reluctant to aggressively operationalize R2P comes from the lessons provided by the Bush Doctrine.8 US foreign policy strategy during George W. Bush’s tenure used both humanitarian and national security justifications for the violation of Iraqi sovereignty and openly promoted both interventionism and pre-emption as legitimate national security strategies.9 Initially, proponents of human security felt the election of Bush might signal a retreat for the idea of humanitarianism in the post-Cold War era, but after the terrorist attacks of 11 September 2001, it appeared as if Bush was suddenly open to the doctrine of interventionism and was willing to use humanitarian rhetoric to achieve his ends. Bellamy argues: “the use of humanitarian justifications by supporters of the 2003 US-led invasion of Iraq only heightened global sensitivity about perceived affronts to sovereignty.”10 Under the Bush Doctrine, proponents of human security and humanitarian intervention saw their worst fears realized. When interventionism on a moral basis was used by the most powerful actor on the world stage, the mission was not only a dismal failure in a strategic sense, but the humanitarian elements of rhetoric used by the Bush administration were also found to be subservient to US self-interest. The outcomes of Bush’s foreign policy initiatives may have served to push states further into their preference for the anarchic structure of the international system and the nominal level of interaction it provides. According to Aidan Hehir: Up to this point supporters of humanitarian intervention found the Bush administration, to their surprise, to be amenable to their agenda; the invasion of Iraq, however, destroyed the tentative coalition between Bush, Blair and the humanitarians. The invasion broke the Kosovo liberal intervention consensus and suggested a regression to self-interested interventionism, and worse, the appropriation of humanitarian rhetoric for this very cause.11 The Bush Doctrine provided a major blow to the interventionist hope in international society. Since the invasion of Iraq in 2003, the decline of US power both in hard- and soft-power terms has served as a lesson as to the consequences of moral promotion by force.12 Though the Bush government was not acting within the defined parameters of R2P, there is now a sense that any effort to promote human security must contend with the possibility that states may have become even more attached to basic rules of interstate organization that will guarantee their independence and uphold the right of non-intervention. The Bush government’s failed experiment has accomplished one thing: the strengthening of the traditional idea of Westphalian sovereignty.13 In order for states to survive in an anarchic system, they attempt to create foreign policy strategies that are designed to produce beneficial outcomes at minimal costs.14 The level of cooperation among states is typically limited to the point that few advances or serious efforts have been made by states to overcome anarchy and progress beyond the current structure. Without a binding force compelling states to act when faced with humanitarian crisis, the use of R2P will be contingent upon states making rational calculations regarding whether a mission is within their direct interest, what payoffs they will receive by undertaking such a mission, and what the potential effects will be on their national power. 66

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The limitations of the United Nations system At the core of R2P is the need for oversight and leadership from various intergovernmental institutions such as the United Nations and the African Union. States are initially and predominantly responsible for implementing the tenets of R2P, but according to the 2001 ICISS document, the United Nations is the highest authority in determining which cases fall under the auspices of the doctrine.15 This idea was accepted and adopted by the United Nations in 2005, though in a far weaker version than the initial ICISS conception. Since 2005, the United Nations Security Council has yet to approve any humanitarian mission in the name of R2P. There are many reasons why this may be the case, but one of the most significant is the basic principles of intergovernmental institutions, most notably the United Nations. These bodies are governed by the political motives of their member states. Until states are willing to place human security at the forefront of their security agendas, to use the United Nations as a forum through which to address humanitarian issues as a collective, and support alterations to the decisionmaking processes in these institutions, the likelihood of R2P being employed by the United Nations is slight. The United Nations is a product of 1945 post-Second World War politics wherein the victors of the conflict placed themselves at the heart of any post-war international power structure.16 The United Nations system sought to achieve the goal of security and survival for states, and aimed to do so by establishing an order contingent upon the most powerful states controlling the geopolitical agenda. It was probable that any major interstate conflict in the postSecond World War era would require one of the Permanent 5 members of the Security Council to intervene diplomatically, economically, or militarily. As a result, the United Nations defined order as stability among states, not moral solidarity among individuals.17 The organization’s limitations are clearly recognized by states and other stakeholders, and this has translated into a mostly rhetorical reform or transformation schema. A number of reports, declarations, and papers calling for reform to the bodies of the United Nations have been issued, many aiming especially at the Security Council due to its importance in the upholding of security and order on the global stage. Included in this calculation of reform, according to Ramesh Thakur, is the need for the Security Council to fulfil its responsibility to protect: “The foundations of the international responsibility to protect lie in … the responsibility of the UNSC, under Article 24 of the UN Charter, for the maintenance of international peace and security.”18 Despite the many calls for changes to the United Nations system in the wake of the Cold War, the organization and its most powerful members seem to prefer the status quo. Between 1995 and 2005, Security Council transformation has been suggested but the Permanent 5 members, while willing to discuss the idea, have made no true move in the direction of approving the expansion of numbers or permanent members or in making use of the R2P. Every United Nations organ has been a topic for debate since the fall of the Soviet Union, but none bears the importance of the Security Council in terms of protecting international order. Even though incremental steps have been taken toward making emerging norms, like human security, a reality, the actions of the Security Council and other member states are still not making the essential changes necessary to their foreign policy strategies to act in the name of humanity. Kim Nossal explains why there is little hope for the United Nations to ever operationalize R2P in the near future: despite the nominal endorsement of the [R2P] agenda at the United Nations, in real terms this endorsement is entirely symbolic, since there are at least two members of the security council, the Russian Federation and the People’s Republic of China, that 67

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do not really believe in R2P, and thus can be counted on to use their veto to block any security council approval of R2P initiatives that even marginally touch their interests.19 Without the express consent and interest of the Permanent 5 members of the Security Council, the R2P will be left to regional organizations and seen as substantially weaker than it would be if used and supported in action by the United Nations.

The universal v. particular debate Among the problems facing R2P is the disputed nature of its claims to universality. There are two facets to questioning the universal nature of R2P, one at the level of first principles and the other at the operational level. The lack of universal acceptance of the driving assumptions of the doctrine only further undermines it as a legitimate policy tool of the United Nations and other institutions. Among the first principles of R2P is the firm belief that all humans have the right to be free from mass atrocities that governments are either unable or unwilling to stop. According to the 2005 World Summit Outcome document: 138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.20 It is a highly contentious statement that all nations must, and do, recognize the universality of any such responsibility. Much like the 2005 Outcome document itself, states may sign onto a declaration, but there is no overarching force compelling them to live up to such agreements. As Nicholas Wheeler notes: “State leaders recognize that they have to justify their actions in terms of the rules, but this owes nothing to a normative commitment to the rules and everything to being seen to play the game so as to avoid moral censure and sanctions.”21 States do not agree on any universal conceptions of morality that compel a responsibility to act in the face of mass atrocity, nor on how much killing constitutes just cause for the use of the R2P doctrine. Asking major powers like China and Russia, as well as certain members of the Global South (most notably those in the Group of 77 who openly oppose alterations to the meaning of sovereignty),22 to accept and adhere to such universal standards, and then compelling these states to sacrifice the legally entrenched norm of non-intervention, is unacceptable to many. At this juncture, R2P will only be used, as it was by the African Union, on a highly selective basis in particular cases.23 The second major consideration regarding universalism comes in the fear from members of the Global South of selective enforcement. Presently, some states, like China and Russia, take exception to the ontological premises of the R2P doctrine, but they can also take comfort in the fact that if ever operationalized, it will not be used against them due to military and strategic considerations. The same sentiment is not shared by other states that may be the target of R2P missions.24 Though the intention of R2P is to enforce human security on a universal and consistent basis, this would be a virtual impossibility. R2P is clear in its definitions of what 68

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qualifies as a violation of human security, and it is well known that such atrocities transpire on a daily basis across the globe. In order for the doctrine to be implemented according to its stated intentions, namely to “develop consistent, credible and enforceable standards to guide state and intergovernmental practice”25 regarding intervention for human protection, it must be universally applicable, and action cannot be dictated by a cost–benefit calculation. R2P aims to provide “practical protection for ordinary people”26 across the globe, not only in areas or situations where the interests of the great powers are served. Presently, no such universal plan of action exists, and selective enforcement is infinitely damaging to the normative underpinnings of R2P as a whole. Without the universal approval of guidelines for implementation of R2P, there has emerged a dichotomy between those in a position to impose R2P standards, and those that can possibly be targets for such missions. Those in favour of conditional sovereignty have placed themselves in a position of moral trusteeship over those states deemed undeserving of independence and the right to self-determination, as was the case in Kosovo.27 Such a belief is inherently contradictory to the norms and laws that govern international politics, and that led to the demise of colonialism in the twentieth century. William Bain argues: It is this justification of statehood that rendered independence a categorical right and dependence of any kind a categorical wrong. Independence endowed dependent peoples with the authority to choose their own ends in life and to decide for themselves the best way in which to achieve them. Recognition of this idea, the conception that human beings aspire to organize their individual and collective lives according to their own will, is what justifies the universal society of states that emerged out of decolonization.28 Selectively enforcing humanitarian provisions, as was done in Kosovo by NATO, only serves to entrench further a hierarchy of states, impose upon the will of sovereign states, and to create the conditions of trusteeship. As Bain notes: “The abandonment of categorical independence for conditional independence, a move which Kosovo’s current status seems to imply, may very well signal the impending demise of the ethics of post-colonial international society and along with it the principle of universal equality.”29 If states are not to be equal and standards are not to be globally applied, the universal legitimacy of R2P becomes highly questionable.

The problem of costs An essential consideration in the debate about whether states operating in an anarchic system will ever operationalize the R2P doctrine is that of cost.30 States are rational actors and operate according to cost–benefit analyses before embarking upon any foreign policy action. Costs can come in a variety of forms, but for the purposes of this examination, perhaps the two most important types would be political and military.

Political In a political sense, the prevention aspects of R2P would incur the smallest costs, while military interventionism and state-building aspects of the doctrine are extremely costly, and have also proved mostly unsuccessful.31 Even in cases like the former Yugoslavia and Kosovo, the success of state-building efforts remains to be seen.32 There are two primary problems with the politics of R2P – the issue of how to evaluate success, and the issue of political will. Each of these 69

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calculations is an important function needed in a successful political project of any kind. Many of the situations where the need for R2P is seen cannot provide onlookers with a clear definition of what a successful use of the doctrine would be, nor how to go about creating the necessary international political will to support such a mission. According to Robert Jackson: “State-building is primarily a domestic process occurring over a long period of time that can only be brought about by the combined wills, efforts, and responsibilities of governments and populations. The community of states at most may only assist or hinder it.”33 In terms of state-building, if the domestic population does not request, desire, or approve of such means of protection, what happens to the political legitimacy involved and how might such a reaction affect the outcome of a mission? In defence of peacebuilding under R2P, Gareth Evans notes: “imposing a peace settlement and democratic institutions of governance on a state and people ravaged by war and atrocity crimes is highly unlikely to work. What is crucial is to somehow win a much deeper understanding of the major parties to the conflict that they have shared interests, a common vision, and must learn to live and work in collaboration with each other.”34 Evans may have a valid point and the lessons of both Afghanistan and Iraq would seem to indicate he is correct, but such long-term considerations neither guarantee success in the mission’s outcome nor would they come without heavy financial and political burdens. The two considerations that most influence the ability of states to foster political will are the financial considerations of interventionist missions and the likelihood of success. The ICISS argues that preventive measures are far less costly than letting a situation get so out of hand that intervention becomes necessary.35 “The best financial argument is that earlier action is always cheaper than later action. If prevention is possible, it is likely to be cheaper by many orders of magnitude than responding after the event through military action, humanitarian relief assistance, postconflict reconstruction, or all three.”36 This logic is sound and if stronger and more effective prevention measures are put into place there is a chance that such a move may be successful in the future. However, without any sincere action to date by the Permanent 5 members of the Security Council to prevent the outbreak of mass atrocity, it is probable that some form of interventionism will enter the equation. Perhaps the highest financial costs of R2P would be incurred throughout a post-conflict transition.37 In the current climate of global economic instability, the fact that there is no cap on a financial amount in terms of reconstruction and the time such state-building will take, it is logical to assume that states would be hesitant to desire rebuilding any nation, especially if that nation provides no practical material benefits to the reconstruction force.38 R2P calls for a three-fold approach to resolving issues of human insecurity. The prevention aspect would likely incur relatively little financial costs, other than intelligence gathering, the possibility of military involvement in deterrent and intelligence capacities, and diplomatic missions; the other two parts of the R2P doctrine, namely the protection and reconstruction stages, are impossible to achieve at a low financial cost. The necessity of political success is essential in using R2P. While there are a number of variables that could never be taken into account in implementing such a doctrine, the costs of being wrong or failing may outweigh the moral significance of initiating a mission in the first place. Once a nation fails in this regard, its willingness to support or become involved in future endeavours may be severely limited. Evidence of this is found by looking at the US involvement in Somalia in the 1990s. After the perceived failure of the deployment in Mogadishu throughout 1992 and 1993, the US was extremely reluctant to act to end the Rwandan genocide two years later.39 The ICISS claims that a moral shift has taken place within international society, and that leaders underestimate the moral interdependence of the global citizenry: “As to 70

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moral appeal, preventing, averting and halting human suffering – all the catastrophic loss and misery that go with slaughter and ethnic cleansing and mass starvation – are inspiring and legitimizing motives in almost any political environment.”40 Human suffering is not at all a new phenomenon, so it becomes curious how R2P proponents attempt to explain the contemporary realization by states that cosmopolitan values have actually compelled consistent enforcement of R2P principles. Due to past experience and empirical evidence, most nations and institutions appear fearful of the political costs of failing at a peacebuilding mission and the domestic repercussions associated with such an outcome. Doubt remains about whether international society has since progressed to the point of favouring the moral over the political.

Military The other major cost in terms of invoking the R2P would come in military terms. It is likely there would have to be military involvement in all stages of R2P implementation. In the prevention stage, military intelligence technology would be needed, and even more importantly, in order to dissuade a government or group from committing a human atrocity, the use of military power to threaten and deter is also a likely requirement. In the reaction stage, military power would be used to intervene if physical intervention became necessary. Throughout the reconstruction phase of the process, military personnel and resources would be vital in protecting the civilians and political assets on the ground, in policing and maintaining law and order, and to prevent foreign aggressors from taking advantage of a weakened state.41 In sum, the use of the military is central to R2P. Military deployment, particularly on an international scale, is extremely costly, both in terms of dollars and lives. The R2P doctrine calls for the United Nations to oversee all arrangements and execution of R2P projects, and thus any intervening force would be international in scope.42 As there are with any United Nations military operations, questions exist surrounding issues like the chain of command, length of the mission, which nations are to contribute troops and how many, whose military is responsible for transportation, and just how much political will is involved once troops begin to lose their lives.43 The ICISS admits the potential problems inherent in discussing international military deployment: “Even states willing in principle to look at new foreign military commitments are being compelled to make choices about how to use limited and strained military capabilities.”44 No operation is without risk, and military personnel are acutely aware of such a hazard, but the R2P provides far too little attention about the logistical use of military force and resources.45 Further, without specific guidelines for military commanders and ground personnel to follow, military costs are bound to increase significantly due to logistical inefficiencies and a “trial and error” approach to safeguarding human populations. While there may have been recent progress made in the use of national military forces for civilian protection, as in the cases of Great Britain in Sierra Leone, the Australians in East Timor and NATO in Kosovo, there remains a major gap between the selective enforcement of civilian security and a global acceptance of a moral responsibility to protect on the part of either the United Nations or the majority of its member states. The universal operationality of R2P from a strategic standpoint has three identifiable obstacles, according to Bellamy: first, “civilian protection mandates remain vaguely worded and provide little in the way of specific guidance”; second, “there is a clear crisis of capacity, which is caused by the growing demand for peace operations, by the West’s reluctance to provide troops, and by the inevitable slowness of regional capacity building”; and third, “more work needs to be done to advance [the UN capstone] doctrine as well as to ensure 71

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that civilian protection receives the status it deserves.”46 With such an ad hoc approach to strategic operationality, costs are bound to increase. Further to this comes the matter of troop protection. If an R2P mission, either in its reactionary or reconstruction phase, is interpreted as a failure, how quickly are troops to be withdrawn? Is there to be a set timeline before troops are removed or are missions able to extend for decades? On this note also comes a chief reflection being, how is success evaluated? Is there a quantifiable measure by which national militaries and governments can recognize when an R2P-based mission has been successful, or is international society left to guess? According to the ICISS and R2P proponents, there is an emphasis on the practicality of the R2P and its tenets. Nowhere, however, is there a clear outline from a military or strategic standpoint as to how to go about operationalizing the report.47 It is assumed, then, that the realistic aspects of the doctrine will be left to the United Nations Security Council, which has rarely proven itself capable of or willing to handle such issues. This lack of design in terms of physical and operational guidelines could serve to increase financial and human costs, rather than protect those who the report claims need it most. The costs of implementing the R2P make it highly unlikely that the political will can ever be generated on any consistent basis. The financial, military, and political issues with the doctrine have yet to be overcome, nor has substantive progress been made toward such a goal. States, at their core, are rational utility maximizers that tend to act only when their self-interest and security are directly affected. Finding a way to present not only the moral foundations of R2P, but the logistical operationality of it, as beneficial rather than costly, may prove to be impossible.

Conclusion As it stands, R2P is actually less likely to be implemented by the United Nations now than it was between 2001 and 2005. The United Nations General Assembly may have demonstrated its rhetorical support for the doctrine in the summer of 2009, but any widespread effort to make use of it has yet to occur. It may be the case that the time for R2P has come and gone, and instances of human insecurity will continue to plague international society as they always have. If, however, one argues in favour of operationalizing R2P on moral, not pragmatic, grounds, what will it take for the doctrine to become a legal policy tool of states? Presently there are a vast number of obstacles standing in the way of R2P’s successful use. This chapter attempts to summarize some of the major challenges facing the society of states and R2P advocates. Until these are either addressed or overcome, the outlook for R2P remains grim. Recently there has been an attempt within R2P circles to shift the debate away from any physical or military interventionist tone to focus instead on the prevention aspects of the doctrine.48 Such a move is likely a positive one in moving toward a better strategy at protecting human populations, but the preventive measures of the doctrine are equally as ambiguous and susceptible to criticism as the military intervention aspects of R2P. In order to argue that states are more willing to prevent atrocity than they are to stop it, one must still overcome the realist constraints of state decision making. As noted above, states act when a strategic calculation is perceived to be directly in their self-interest. If states are reluctant to take physical action to intervene and rebuild in the name of R2P, there is no evidence to suggest that they will take the prevention aspects of R2P any more seriously unless there is a direct correlation between preventing instances of human insecurity and their national interest. Though prevention is arguably less costly than the other two major components of the R2P doctrine, making use of it still requires a state to look beyond its own well-being, which is highly unlikely. 72

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History has demonstrated that the only identifiable common interest shared by all states since the inception of the Westphalian system in 1648 is that of survival. If a shared sense of moral obligation exists that will now motivate states to act in the name of human security, where did it suddenly come from? Genocides, crimes against humanity, war crimes, and ethnic cleansing are not by any means new phenomena. The question remains at which moment did international society decide that rational self-interest was to be replaced by the cosmopolitan interests of humanity. While certainly noble in spirit, the practical aspects of implementing the R2P doctrine in a society of self-interested states are immense and possibly insurmountable. Proponents of R2P must take notice of such issues if they are to achieve the success they desire.

Notes 1 International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Ottawa: International Development Research Centre, 2001, p. xi. 2 For Martin’s personal account on the events leading up to the World Summit, see Paul Martin, Hell or High Water: My Life In and Out of Politics, Toronto: McClelland & Stewart, 2008. 3 UN General Assembly, World Summit Outcome Document, 2005, http://daccess-dds-ny.un.org/doc/ UNDOC/GEN/N05/487/60/PDF/N0548760.pdf?OpenElement (accessed 31 January 201). 4 Alex Bellamy, “Whither the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit,” Ethics and International Affairs 20:2, 2006, pp. 145–46. 5 For more on the General Assembly debate in the summer of 2009, see Ramesh Thakur, “The Responsibility to Protect,” The Mark, 7 December 2009, and Robert W. Murray and W. Andy Knight, “Operationalizing Our Ideals,” The Mark, 30 December 2009. 6 Kenneth Waltz, Man, the State and War, New York: Columbia University Press, 1959, pp. 160. 7 Barry Buzan, Charles Jones, and Richard Little, The Logic of Anarchy: Structural realism to Structural Realism, New York: Columbia University Press, 1993, p. 152. 8 For an analysis on the theory behind the Bush Doctrine, see Robert Jervis, “Understanding the Bush Doctrine,” Political Science Quarterly 118:3, Fall 2003, pp. 365–88. 9 See especially Sections I, III and V of the 2002 National Security Strategy of the United States of America. 10 Alex Bellamy, Responsibility to Protect, Cambridge: Polity, 2009, p. 67. 11 Aidan Hehir, Humanitarian Intervention after Kosovo: Iraq, Darfur and the Record of Global Civil Society, Basingstoke: Palgrave, 2008, p. 147. 12 For more on how the 2003 Iraq War impacted upon R2P, see Alex Bellamy, Responsibility to Protect, Cambridge: Polity, 2009, pp. 68–70. For a discussion of the impact of American foreign policy and the relative decline in power, see Joseph Nye, “The Decline of America’s Soft Power: Why Washington Should Worry,” Foreign Affairs 83:3, May–June 2004, pp. 645–65. 13 Hehir, Humanitarian Intervention after Kosovo, p. 147. 14 It is, of course, noted that states will sometimes defect and embark upon foreign policy initiatives with little or no rational foresight. For instance, see Waltz’s discussion of the US intervention in Vietnam in Kenneth Waltz, “International Structure, National Force, and the Balance of World Power,” International Politics and Foreign Policy, New York: The Free Press, 1969, pp. 304–14. 15 ICISS, The Responsibility to Protect, Ottawa: International Development Research Centre, 2001, p. xi. 16 Thomas Weiss, David Forsythe, and Roger Coate, The United Nations and Changing World Politics, Boulder, CO: Westview Press, 1994, pp. 24–26. 17 For an extensive discussion of the pluralist nature of the United Nations, see Robert Jackson, The Global Covenant: Human Conduct in a World of States, Oxford: Oxford University Press, 2000. 18 Ramesh Thakur, The United Nations, Peace and Security: From Collective Security to Responsibility to Protect, Cambridge: Cambridge University Press, 2007, p. 255. 19 Kim Richard Nossal, “Ear Candy: Canadian Policy Toward Humanitarian Intervention and Atrocity Crimes in Darfur,” International Journal 60:4, Autumn 2005, p. 1029. 20 UN General Assembly, World Summit Outcome Document. 21 Nicholas Wheeler, Saving Strangers: Humanitarian Intervention in International Society, Oxford: Oxford University Press, 2000, p. 28.

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Robert W. Murray 22 See, for instance, the Group of 77 South Summit, “Declaration of the South Summit,” April 2000, www.g77.org/summit/Declaration_G77Summit.htm (accessed 15 August 2010). 23 Alex Bellamy, Responsibility to Protect, Cambridge: Polity, 2009, pp. 78–81. 24 See the comments of Egyptian Ambassador Maged A. Abdelaziz, speaking on behalf of the Non-Aligned Movement, during the General Assembly debate in the summer of 2009. For a full text of Ambassador Abdelaziz’s speech, see http://www.namegypt.org/en/NAMActivities/Documents/Statement-1.pdf (accessed 28 September 2011). 25 ICISS, The Responsibility to Protect, p. 11. 26 ICISS, The Responsibility to Protect, p. 11. 27 This point is supported by both Bain and Keating. See William Bain, “The Political Theory of Trusteeship and the Twilight of International Equality,” International Relations 17:59, 2003, pp. 59–77, and Tom Keating, “The United Nations and NATO’s War: The Fallout from Kosovo,” in Adapting the United Nations to a Postmodern Era: Lessons Learned, Basingstoke: Palgrave, 2005, pp. 188–200. 28 Bain, “The Political Theory of Trusteeship,” p. 67. 29 Bain, “The Political Theory of Trusteeship,” p. 69. 30 Costs here do not refer simply to quantifiable calculations of expense, but rather, to the rational calculations made by actors in determining foreign policy strategy. See Robert Keohane, After Hegemony: Cooperation and Discord in the World Political Economy, Princeton, NJ: Princeton University Press, 2005, pp. 110–32. 31 For more on peacebuilding and its challenges, see Beatrix Schmelzle, Martina Fischer, and Hans Giessmann (eds.), Berghof Handbook for Conflict Transformation, Berlin: Berghof Research Centre for Constructive Conflict Management, 2010. 32 Tom Keating, “The United Nations and NATO’s War: The Fallout from Kosovo,” in Adapting the United Nations to a Postmodern Era: Lessons Learned, Basingstoke: Palgrave, 2005, pp. 188–200. 33 Robert Jackson, Quasi-States: Sovereignty, International Relations and the Third World, Cambridge: Cambridge University Press, 1993, p. 21. 34 Gareth Evans, Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All, Washington, DC: Brookings Institution Press, 2008, p. 150. 35 For more on the prevention aspect of R2P, see Alex Bellamy, “Conflict Prevention and the Responsibility to Protect,” Global Governance 14, 2008, pp. 135–56. 36 ICISS, The Responsibility to Protect, p. 71. 37 This logic is derived from the high financial costs associated with the Canadian mission in Afghanistan over time. A report issued by the Parliamentary Budget Officer shows that costs have increased as nation-building replaced strictly military operations early in the mission. See Office of the Parliamentary Budget Officer, “Fiscal Impact of the Canadian Mission in Afghanistan,” 2010, www.parl.gc.ca/ pbo-dpb (accessed 5 February 2010). 38 Hehir, Humanitarian Intervention after Kosovo, p. 79. 39 Ibid., p. 79. 40 ICISS, The Responsibility to Protect, p. 71. 41 For more on the logistics of peacebuilding, see Julia Raue and Patrick Sutter (eds.), Facets and Practices of State-Building, Leiden: Martinus Nijhoff Publishers, 2009. 42 This is derived from the ICISS’s comments regarding the question of authority in Chapter 6 of the 2001 report, and the passing of the 2005 version of the doctrine by the UN itself. This does not, however, preclude the possibility of regional or ad hoc organizations making use of R2P on their own terms. 43 For more on UN peace operations, see Donald Daniel, Patricia Taft, and Sharon Wiharta (eds.), Peace Operations: Trends, Progress and Prospects, Washington, DC: Georgetown University Press, 2008. 44 ICISS, The Responsibility to Protect, p. 71. 45 It is admitted here that Bellamy has been instrumental in addressing this shortcoming recently. See Alex Bellamy, “Realizing the Responsibility to Protect,” International Studies Perspectives 10, 2009, pp. 111–28. 46 Bellamy, “Whither the Responsibility to Protect?,” p. 164. 47 Attempts have been made recently to fill this gap. See, for instance, Victoria Holt and Tobias Berkman, The Impossible Mandate? Military Preparedness, The Responsibility to Protect and Modern Peace Operations, Washington, DC: The Henry L. Stimson Center, 2006. 48 See especially the recent work of Alex Bellamy. A preliminary discussion of building the prevention aspects of R2P can be found in Alex Bellamy, “Conflict Prevention and the Responsibility to Protect,” Global Governance 14, 2008, pp. 135–56.

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Bibliography Angus Reid Public Opinion, “Majority of Canadians Still Oppose Military Mission in Afghanistan,” August 2010. Available HTTP: http://www.visioncritical.com/wp-content/uploads/2010/08/2010.08.10_Afghan_ CAN.pdf (accessed 15 August 2010). Bain, William, “The Political Theory of Trusteeship and the Twilight of International Equality,” International Relations 17:59, 2003, pp. 59–77. Bellamy, Alex, Responsibility to Protect, Cambridge: Polity, 2009. ——“Realizing the Responsibility to Protect,” International Studies Perspectives 10, 2009, pp. 111–28. ——“Conflict Prevention and the Responsibility to Protect,” Global Governance 14, 2008, pp. 135–56. ——“Whither the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit,” Ethics and International Affairs 20:2, 2006, pp. 143–69. Buzan, Barry, Charles Jones, and Richard Little, The Logic of Anarchy: Structural realism to Structural Realism, New York: Columbia University Press, 1993. Campion-Smith, Bruce, “Afghan Mission Cost: Up to $18B,” Toronto Star, 9 October 2008. Daniel, Donald, Patricia Taft, and Sharon Wiharta (eds.), Peace Operations: Trends, Progress and Prospects, Washington, DC: Georgetown University Press, 2008. Evans, Gareth, Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All, Washington, DC: Brookings Institution Press, 2008. Group of 77 South Summit, “Declaration of the South Summit,” April 2000. Available HTTP: www.g77. org/summit/Declaration_G77Summit.htm (accessed 15 August 2010). Hehir, Aidan, Humanitarian Intervention after Kosovo: Iraq, Darfur and the Record of Global Civil Society, Basingstoke: Palgrave, 2008. Holt, Victoria and Tobias Berkman, The Impossible Mandate? Military Preparedness, The Responsibility to Protect and Modern Peace Operations, Washington, DC: The Henry L. Stimson Center, 2006. International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Ottawa: International Development Research Centre, 2001. Jackson, Robert, The Global Covenant: Human Conduct in a World of States, Oxford: Oxford University Press, 2000. ——Quasi-States: Sovereignty, International Relations and the Third World, Cambridge: Cambridge University Press, 1993. Jervis, Robert, “Understanding the Bush Doctrine,” Political Science Quarterly 118:3, Autumn 2003, pp. 365–88. Keating, Tom, “The United Nations and NATO’s War: The Fallout from Kosovo,” in Adapting the United Nations to a Postmodern Era: Lessons Learned, Basingstoke: Palgrave, 2005, pp. 188–200. Keohane, Robert, After Hegemony: Cooperation and Discord in the World Political Economy, Princeton, NJ: Princeton University Press, 2005. Martin, Paul, Hell or High Water: My Life In and Out of Politics, Toronto: McClelland & Stewart, 2008. Murray, Robert W. and W. Andy Knight, “Operationalizing Our Ideals,” The Mark. Available HTTP: www.themarknews.com/articles/774-operationalizing-our-ideals (accessed 30 December 2009). National Security Strategy of the United States of America, 2002. Available HTTP: http://www.globalsecurity. org/military/library/policy/national/nss-020920.pdf (accessed 13 August 2010). Nossal, Kim Richard, “Ear Candy: Canadian Policy Toward Humanitarian Intervention and Atrocity Crimes in Darfur,” International Journal 60:4, Autumn 2005, pp. 1017–32. Nye, Joseph, “The Decline of America’s Soft Power: Why Washington Should Worry,” Foreign Affairs 83:3, May–June 2004, pp. 645–65. Office of the Parliamentary Budget Officer, “Fiscal Impact of the Canadian Mission in Afghanistan.” Available HTTP: www.parl.gc.ca/pbo-dpb (accessed 5 February 2010). Raue, Julia and Patrick Sutter (eds.), Facets and Practices of State-Building, Leiden: Martinus Nijhoff Publishers, 2009. Schmelzle, Beatrix, Martina Fischer, and Hans Giessmann (eds.), Berghof Handbook for Conflict Transformation, Berlin: Berghof Research Centre for Constructive Conflict Management, 2010. Thakur, Ramesh, “The Responsibility to Protect,” The Mark. Available HTTP: www.themarknews.com/ articles/739-responsibility-to-protect (accessed 7 December 2009). ——The United Nations, Peace and Security: From Collective Security to Responsibility to Protect, Cambridge: Cambridge University Press, 2007. United Nations General Assembly, World Summit Outcome Document. Available HTTP: http://daccessdds. un.org/doc/UNDOC/GEN/N05/487/60/PDF/N0548760.pdf?OpenElement (accessed 31 January 2010).

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Robert W. Murray Waltz, Kenneth, “International Structure, National Force, and the Balance of World Power,” in International Politics and Foreign Policy, New York: The Free Press, 1969, pp. 304–14. ——Man, the State and War, New York: Columbia University Press, 1959. Weiss, Thomas, David Forsythe, and Roger Coate, The United Nations and Changing World Politics, Boulder, CO: Westview Press, 1994. Wheeler, Nicholas, Saving Strangers: Humanitarian Intervention in International Society, Oxford: Oxford University Press, 2000.

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6 WHAT IS RIGHT WITH R2P? Frazer Egerton

In such a short space of time that advocates of other causes must ask themselves where it all went wrong, the ‘Responsibility to Protect’ (R2P) has gone from a twinkle in a commissioner’s eye to demanding the engagement of policy makers and academics alike. Ten years after the International Commission on Intervention and State Sovereignty (ICISS) published its report, and six years after the United Nations endorsed the R2P, there is much to be celebrated about a concept that offers real advance in dealing with one of the gravest problems in world politics – mass atrocities committed within a state’s borders. Nonetheless, advocates of the concept continue to face the task not only of developing and entrenching R2P, but also defending it from an array of insistent criticisms. There is a limit to the extent to which the authors of these criticisms might effectively be engaged, as the same alleged failings appear resistant to the most robust of defences. Nonetheless, criticisms persist, and those of us who support the concept must occasionally respond, and once again draw attention to the need for, and merits of, R2P. Many of the criticisms referred to are actually derivatives of two main claims: that R2P dangerously undermines sovereignty, and that it represents an imposition of the will of the powerful against that of the powerless. This chapter details why both of these claims are false.

R2P as an assault on sovereignty Sovereignty matters One of the main criticisms that accompanied the development of R2P, and the claim of many of those that continue to fight a rearguard opposition to it, is the idea that despite its efforts and claims to the contrary, R2P represents a dangerous attack on sovereignty and the rule of nonintervention. The norm of sovereignty is one of the most firmly established and widely respected in international politics. Whilst an array of violations of this norm might be cited as evidence of the contrary, this must be viewed against the background of an overwhelming observance of non-intervention and apologetic assertions of vital concerns on those occasions it is breached. There are a number of reasons for this attachment to non-intervention, reasons that demanded and received attention by the ICISS in the development of R2P. Even those who argue that there are times when sovereignty demands abrogation are right to acknowledge that it remains a very important and often very useful concept. 77

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Those who emphasise the benefits of non-intervention rarely deny the great harm that can be visited on an unfortunate population, nor sympathise with their plight. However, as horrific as such cases are, the argument offered is that they are both contained and minor relative to the horrors that would be unleashed if intervention was not observed, if states saw little reason not to attack other than their ability to do so. Thus Jackson writes: ‘the stability of International Society, especially the unity of the great powers, is more important, indeed far more important than minority rights and humanitarian protections in Yugoslavia or any other country’.1 It should not be doubted, so the argument goes, that such interventions will happen if sovereignty is not respected. It may be for narrow state self-interest. As Thucydides instructs and history reaffirms, powerful states will often intervene in less powerful states to further their own interests. Without the protection of a rule of non-intervention, ‘the strong do what they will and the weak suffer what they must’. Alternatively, intervention may be launched out of perceived support for particular groups or ideologies. As long as communities within states have ethnic, religious or ideological differences, any conflict within a state will find ready allies without it. As Richard Cobden argued over 150 years ago, should Britain intervene in the affairs of other European states in promoting constitutionalism, it must accept that Russia would be justified in invading Hungary in support of its Slavic population.2 That lesson remains salient today. If a coalition can intervene on behalf of some within Iraq to overthrow its Baathist regime, or Libya to defeat Gadhaffi, why not the Iranians in Syria or the Russians in Georgia? Moreover, the worst effects of intervention occur even if it is not naked power politics or sectarian affinities, but humanitarian principles that causes the intervention in the first place. The passing of time has dimmed the memory that the European colonisation of much of the world was defended and supported on humanitarian grounds. As Finnemore writes: The vast economic literature on colonization often overlooks the strong moral dimension perceived and articulated by many of the colonizers. Colonization was a crusade. It would bring the benefits of civilization to the “dark” reaches of the earth. It was a sacred trust, it was the white man’s burden, it was mandated by God that these Europeans go out into unknown (to them) parts of the globe, bringing what they understood to be a better way of life to the inhabitants. Colonization for the missionaries and those driven by social conscience was a humanitarian mission of huge proportions and consequently of huge importance.3

The road to hell. … … but it is not absolute These are legitimate concerns, and those of us who have been fortunate enough to live in a time and place where the threat of invasion from another state has rarely loomed large should not forget that this represents a minority experience. As a criticism of R2P, however, it is not persuasive. At its extreme, the argument is that either sovereignty is respected as an absolute or there is a descent down a slippery slope to the law of the Peloponnesian jungle. Most people are rightly unconvinced by such absolutists, whose views, neatly summarised by Parekh, are that ‘citizens are the exclusive responsibility of their state, and their state is entirely their business’.4 The idea that arbitrary geographical boundaries define moral concern is very much a minority if not original position (Bismarck famously felt that the ‘whole of the Balkans is not worth the bones of a single Pomeranian grenadier’). A far more compelling concern is that R2P simply goes too far in undermining a concept that has brought considerable benefits to international politics. 78

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Certainly R2P rejects the notion that sovereignty is absolute, but that is hardly a remarkable claim. Such a position neither has nor had many serious advocates. The idea that sovereignty comes with limits has an illustrious heritage. John Stuart Mill, for example, argued for a rule against intervention, but only on the basis of a division between civilised and barbarian nations.5 Similarly, Kant wrote that ‘no state shall interfere by force in the constitution or government of another state’, but argued that this rule of non-intervention applied only to republics.6 Sovereignty is often valued, but rarely to the exclusion of all else. When the ICISS developed R2P they tapped into more recent theorising on the necessity to place demands and restraints on sovereignty. Principal amongst these intellectual antecedents was the work of Francis Deng and Roberta Cohen.7 In keeping with their ideas that the idea that sovereignty depended upon a state’s adherence to certain key responsibilities, the ICISS argued that states represented the best guarantors of the security and well-being of its citizens, but should they prove unable or unwilling to provide that security, responsibility to do so passed to the international community. Sovereignty was to be earned by ensuring the protection of its civilians from the worst mass atrocities. In so doing, the ICISS acted very much in accordance with a strong stream of thought on intervention and sovereignty, and was very careful to articulate a concept that was seen as a corollary of responsible sovereignty and not a source that might undermine it. As the Commission noted: defence of state sovereignty, by even its strongest supporters, does not include any claim of the unlimited power of a state to do what it wants to its own people. The Commission heard no such claim at any stage during our worldwide consultations. It is acknowledged that sovereignty implies a dual responsibility: externally – to respect the sovereignty of other states, and internally, to respect the dignity and basic rights of all the people within the state. In international human rights covenants, in UN practice, and in state practice itself, sovereignty is now understood as embracing this dual responsibility. Sovereignty as responsibility has become the minimum content of good international citizenship.8 The point is that except for those at the absolute extremes, even very staunch defenders of sovereignty and non-intervention have almost always insisted that this rests on the adherence to certain criteria (or to states that might be expected to adhere to those criteria). The commissioners did not offer a radical departure in demanding that states meet a certain minimum in the sovereignty/responsibility trade-off. Scholars and even many state representatives have long argued that for states to enjoy the protection that the principle of non-intervention accords them, they ‘should satisfy certain basic requirements of decency’.9 Despite this, there is a pervasive if not absolute observance of the rule of non-intervention. Predicating sovereignty on basic rules has not meant the skies falling in on the Westphalian world. Indeed, the Commission was scrupulous in not producing an ‘interventionist’s charter’, and as such set the bar detailing when intervention might take place under the remit of R2P very high. They argued that intervention was only legitimate when a small number of mass crimes occurred. There was no demand for specific forms of governance, the protection of basic human rights or an array of crimes that might harm and kill many people. At its adoption by the UN, the circumstances under which intervention was legitimate under R2P were tightened further. Non-intervention was to be respected if a government could convince the UN (in fact a single member of the Security Council’s P5 willing to use their veto power) that they were willing and able to prevent a handful of mass crimes. As such, R2P actually offers such a robust defence of sovereignty, reinforcing and reaffirming its primacy in international society, and 79

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focusing on a small number of the worst atrocities that could negate it, that it led to criticisms from those unhappy with its state-centricity.10 The notion that R2P presents powerful states with a right to intervene is simply unpersuasive. Of course intervention might still take place, and may still adopt the language of humanitarian rescue to justify it, but that would happen with or without R2P. In the face of continued opposition from those who argue that R2P represents a dangerous assault on the principles of sovereignty and non-intervention, it is worth reminding oneself why the Commission was established and why so many people are wrestling with the issue of intervention. Faced with unconscionable crimes the choice is to either accept that they will always be a recurring reality of global politics, or to develop a strategy as to what to do, when and how. R2P offers one framework for action. It is hard to see how the Commission could have argued for fewer cases where intervention was permissible. Thus to oppose it on the ground that it is weighted too far in favour of intervention is to implicitly accept the absolutist position that what happens to others beyond state boundaries cannot and should not inspire action. To uphold a total prohibition on intervention is to allow whichever sovereign may have assumed power in and over a given territory to use that power entirely as they deem fit. We would be in a world informed by the logic summarised by Professor Shen Dingli when he told USA Today that ‘China has used tanks to kill people in Tiananmen Square. It is Myanmar’s sovereign right to kill their own people, too.’11 The argument that intervention may sometimes be justifiable, but R2P goes too far, is not seriously supportable.

R2P as an imposition The second most frequent refrain of R2P opponents is the notion that it is an imposition, either of Western beliefs on non-Westerners, or the powerful upon the powerless. The first is an equal mix of condescension and prejudice and should be easily rejected. The second is a little more problematic, but far less so than is frequently claimed. Each of these is now addressed.

R2P is a Western concept The ICISS was self-consciously globally representative and consulted extremely widely. As is well known, its conclusion was that if a state proved unwilling or unable to prevent mass atrocities within its borders, responsibility for protecting those citizens passed elsewhere. There are, sadly, some who would cede to leaders the rights to treat those within the boundaries of their state entirely as they see fit, but it is no more a non-Western conception of human rights or state sovereignty than opposition to it is Western. To argue otherwise is to offer a false and essentialising binary that somehow equates vicious tyranny and/or state ineptitude with being non-Western. It is revealing which non-Western governments opposed to R2P are most commonly cited. In a discussion of how best to protect citizens from the worst atrocities, it would perhaps seem a little strange to liberally cite governments, including those of Cuba, Egypt12 and Algeria, who continue to buck the global trend towards individual rights and democracy.13 It is easy enough to understand the rationale of this approach from an unelected government who Amnesty International reports oversees the use of emergency legislation to arrest and detain people without charge or trial; the widespread use of torture and other ill-treatment; grossly unfair trials of civilians before military and emergency courts; restrictions on the peaceful exercise of the rights to 80

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freedom of expression, association and assembly; the rise in death sentences; a lack of legal provisions and other measures to protect women from domestic violence; legal and other discrimination against members of religious and ethnic minorities; arrests and prosecutions of people for their actual or alleged sexual orientation; and the maltreatment of refugees, asylum-seekers and migrants, including through the use of excessive, including lethal force.14 However, it is a less readily explicable tactic amongst those who claim to be advocating for the powerless. More striking than this support, however, are opponents’ near absolute failure to acknowledge that most non-Western governments support R2P. Thus Leslie Kojo Christian, the Ghanaian Permanent Representative to the United Nations, spoke of his government’s ‘view that in the event of the failure by both governments and armed groups to abide by their commitments under international humanitarian law, conventions and agreements, it behooves the United Nations to intervene and protect innocent populations against such crimes as genocide, ethnic cleansing and other gross human rights violations’.15 Then there is Rwandan Ambassador Joseph Nsengimana, who stated: We believe that our common humanity should unite us in the resolve to put an end to the suffering of millions of people who live in, and are threatened by, situations of conflict. This resolve entails national Governments taking full responsibility to protect civilians, and, where they are unable or unwilling to do so, the international community acting through the Security Council to take appropriate steps to provide such protection.16 Begum Taj, Minister Plenipotentiary of the Permanent Mission at the UN, commended the Security Council for adopting resolution 1674(2006) of April 28, 2006 in line with the 2005 World Summit Outcome Document. The resolution stresses the protection and assistance needs of all affected civilian populations and reaffirms the provisions of paragraphs 138 and 139 of the Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.17 Such affirmations of R2P are not limited to states and their representatives. NGOs, civil society and global organisations – concerned less with the machinations of state power and more with the needs of the most desperate – have mobilised in support of a robust and enforced Responsibility to Protect.18 The handwringing from distant ivory towers is not widely shared by those working on the ground and actually charged with preventing and ending mass atrocities.

R2P is a tool of the powerful Rather than a Western imposition, the greater concern is that the vastly differing powers of nation-states lead to an unfair application. This is a more significant charge. R2P is a concept born of, and contending with, political realities. It is not a treatise on how people might live together more harmoniously, but a series of ideas as to how to mitigate the worst results of our inability to do so. Dealing with the world as it is and not how it ought to be, its architects were 81

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cognisant that the actions R2P calls for are not universally applicable. Should a major power, or even a significant client of a major power, perpetrate mass atrocities within its own borders, there are limits to the effective action that might be taken. Russia and China, for example, have attracted considerable criticism for their actions in Chechnya and Tibet respectively, but no serious observers of international politics believe that the full gamut of options R2P offers could be applied in either case (even if they were able to overcome the veto power of the permanent members of the Security Council). Again, this was an issue that the ICISS wrestled with, as the report makes clear: 4.41 Military action can only be justified if it stands a reasonable chance of success, that is, halting or averting the atrocities or suffering that triggered the intervention in the first place. Military intervention is not justified if actual protection cannot be achieved, or if the consequences of embarking upon the intervention are likely to be worse than if there is no action at all. In particular, a military action for limited human protection purposes cannot be justified if in the process it triggers a larger conflict. It will be the case that some human beings simply cannot be rescued except at unacceptable cost – perhaps of a larger regional conflagration, involving major military powers. In such cases, however painful the reality, coercive military action is no longer justified. 4.42 Application of this precautionary principle would on purely utilitarian grounds be likely to preclude military action against any one of the five permanent members of the Security Council even if all the other conditions for intervention described here were met. It is difficult to imagine a major conflict being avoided, or success in the original objective being achieved, if such action were mounted against any of them. The same is true of other major powers who are not permanent members of Security Council. This raises again the question of double standards – but the Commission’s position here, as elsewhere, is simply this: the reality that interventions may not be able to be mounted in every case where there is justification for doing so, is no reason for them not to be mounted in any case. That is not to say that no other action might be taken. In a world of complex and significant interaction, few regimes are immune to the opinions and (non-military) actions of those beyond their borders. Even the despotic Kim dynasty in North Korea and the paranoid junta in Burma have demonstrated that other states can exert pressure over the domestic policies of others. Every country, even the most powerful, offers explanations of its actions intended for an external audience. Whether Russia’s actions in South Ossetia (and their inappropriate and unintentionally ironic adoption of the language of R2P), the US in Iraq or China’s dealings with its Uighur population, all are accompanied by defences for international consumption. As such, they are subject to influence other than military intervention. As Evans notes: [Indonesia,] a large and important regional power with over 230 million people, the largest Islamic population in the world, and armed forces 300,000 strong, (succumbed) to strong collective international pressure to allow – much against its instincts and initial will – the Australian-led intervention to protect Timor-Leste in September 1999. The pressure was essentially diplomatic, applied very directly and personally by President Clinton and other presidents and prime ministers in the margins of the Asia Pacific Economic Cooperation (APEC) forum heads of government meeting.19 82

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It is not that R2P does not prescribe action should a powerful country commit mass atrocities. It simply, and appropriately, acknowledges that the realities of uneven military and political power preclude this being military in some cases. That this is advanced as a reason why effective appropriate action to prevent mass atrocities should never be pursued is a disservice to its victims. There may be unevenness in the application of R2P, as well as on those who are called to financially and logistically support operations of various kinds, but this is quite distinct from the idea that the concept is a tool the more powerful may use to achieve their will at the expense of the less powerful. Indeed R2P, as is clearly articulated first by the ICISS and then at the United Nations, is a concept that places demands on the more powerful to defend the least. R2P is an imposition, not on the powerless or the non-Western, but on those who would use the cloak of sovereignty as a legitimate cover for all manner of mass atrocities by those who refuse to allow them to do so. Of course it may be misused, a fate shared by many other worthy concepts, but that is no reason to reject it. It is sadly predictable that as this book hits the shelves there will be several places and thousands of people at risk of mass atrocities. The time for impotent observation and tardy and empty apologies is over. It is not a question of whether to act but when and how. R2P is imperfect. No concept wrestling with one of the most fundamental and destructive issues in world politics could be anything else. It is, however, by some margin the most compelling answer we have in contending with ‘genocide, war crimes, ethnic cleansing and crimes against humanity’.20 Criticisms of it will persist. Many of these will come from those who reject it as placing unwanted limits on the exercise of their own power – a reason in itself to support R2P. This chapter is more concerned with those from the worlds of academia and journalism who offer the same criticisms. Of the myriad claims, the most common concern are the two main alleged failings discussed above. Both are misplaced. Certainly R2P places limits on the exercise of sovereignty, ones considered acceptable even to the body of sovereign states, and so it should. Limitless sovereignty, leaving fellow humans to the whims of leaders because of an accident of geography, is indefensible. Certainly R2P insists on a conception of human rights, one that actually says that constructive action should be taken when mass atrocities loom or occur. Again, it is right to do so. Those who would characterise this as values held by a small section of humanity should be insistently countered. There are no excuses for not taking real and concerted action to end mass atrocities. R2P is a laudable effort to do this. Despite some insistent if not always consistent efforts to oppose it, the intellectual battle is largely won. As this short chapter demonstrates, the strongest arguments against it are relatively easily refuted. What remains is the battle to ensure its effective application – a far harder task for far more suitable people.

Notes 1 Robert Jackson, The Global Covenant: Human Conduct in a World of States (Oxford: Oxford University Press, 2000), p. 291. 2 John Bright and James Rogers, Speeches on Questions of Public Policy by Richard Cobden, Vol. 2 (London: Macmamillan and Co., 1870), p. 225. 3 Martha Finnemore, ‘Constructing Norms of Humanitarian Intervention’, in P. J. Katzenstein (ed.), The Culture of National Security (New York: Columbia University Press, 1996), pp. 153–85, p.172. 4 Bhikku Parekh, ‘Rethinking Humanitarian Intervention’, International Political Science Review, 18(1), 1997, pp. 49–69. For an example of such a view, see Samuel Huntington, ‘New Contingencies, Old Roles’, Joint Forces Quarterly, 1993, pp. 38–53. 5 John Stuart Mill, ‘A Few Words on Non-Intervention’, in G. Himmelfarb (ed.), Essays on Culture and Politics (New York: Yale University Press, 1962), pp. 396–413. This led him to the conclusion that

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6 7

8 9 10 11 12 13

14

15 16 17

18

19 20

criticism of the French in Algeria or the British in India was misplaced, the Europeans being civilised, the other two barbaric. Hans Reiss, Kant: Political Writings (Cambridge: Cambridge University Press, 1989). Including Roberta Cohen and Francis Deng, The Forsaken People: Case Studies of the Internally Displaced (Washington, DC: Brookings Institution Press, 1998); Francis Deng, ‘Frontiers of Sovereignty’, Leiden Journal of International Law, 8(2), 1995, pp. 249–86; and Francis Deng, I. William Zartman and Donald Rothchild, Sovereignty as Responsibility: Conflict Management in Africa (Washington, DC: Brookings Institute, 1996). International Commission on Intervention and State Sovereignty (ICISS), The Responsibility To Protect (Ottawa: IDRC, 2001). John Vincent and Peter Watson, ‘Beyond Non-Intervention’, in Mark Hoffmann and Ian Forbes, Political Theory, International Relations and the Ethics of Intervention (London: Macmillan, 1993), p. 126. Daniel Warner, ‘The Responsibility to Protect and Irresponsible, Cynical Engagement’, Millennium – Journal of International Studies, 32(1), 2003, pp. 109–21. Calum MacLeod, ‘China Not Likely to Rebuke Burma’, USA Today, 2 October 2007. This was written before the Arab Spring. Egypt, for example, ‘disputed both the assertion that international society had a responsibility to protect civilians (arguing that there was no shared responsibility beyond a state’s responsibility to its own citizens) and the notion that the protection of civilians should trump sovereignty’. See Alex Bellamy, The Responsibility to Protect: The Global Effort to End Mass Atrocities (London: Routledge, 2009), p. 88. ‘Amnesty International, Document – Egypt: Universal Periodic Review: Opportunity to address human rights concerns in Egypt’, available at: http://www.amnesty.org/en/library/asset/MDE12/009/ 2010/en/c3d16403-d44d-43e8-b2a7–510ccc46cdb5/mde120092010en.html (accessed 11 January 2012). Institute for Global Policy, Government Statements on the Responsibility to Protect Africa Region, 2005–8, p. 2, available at: http://www.wfm-igp.org/site/ (accessed 11 January 2012). Ibid., p. 4. Ibid. p. 7. See also Jennifer Welsh, ‘Implementing the “Responsibility to Protect”’, Policy Brief No. 1, Oxford Institute for Ethics, Law, and Armed Conflict, 2009, available at: http://www.elac.ox.ac.uk/ downloads/R2P_policybrief_180209.pdf (accessed 17 August 2011). Oxfam International, The UN World Summit must show new determination to live up to the Millennium Declaration, 2005, available at: http://www.oxfam.org.uk/resources/policy/conflict_disasters/downloads/ oi_response_un_summit.pdf (accessed 17 August 2011). Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All (Washington, DC: Brookings Institute Press, 2008), p. 63. United Nations, World Summit Outcome, United Nations General Assembly Resolution, A/RES/ 60/1, 24 October 2005.

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PART II

DEVELOPING AND OPERATIONALISING R2P

7 OPERATIONALISING PROTECTIVE INTERVENTION Alternative models of authorisation1 Nicholas J. Wheeler and Tim Dunne

The Responsibility to Protect (R2P) has proved to be a remarkably resilient idea. In a series of speeches and articles in the late 1990s, Kofi Annan condemned the fact that sovereignty had become a warrant for tyranny. ‘Sovereignty,’ he insisted, ‘implies responsibility’ (Bellamy 2009: 28–29).2 Over a decade later, and despite the resurgence in national security thinking associated with counter-terrorism, R2P has become accepted as a principle for responding to humanitarian atrocities. Such a claim can be evidenced by the widespread acceptance that all states must protect their citizens, and should they fail to do so, the responsibility then falls upon others to assist or enforce depending on the specific context. The clarity of UN Security Council (UNSC) backing for ‘all necessary measures’ to protect Libyan civilians indicates how far the UN order has travelled in relation to operationalizing protective intervention in certain cases.3 R2P has the virtue of not being ‘humanitarian intervention’, in much the same way that President Obama appealed to the American electorate in 2009 because he was ‘not Bush’. The language of humanitarian intervention had become unacceptable to the majority of states in the world; with the severity of NATO’s pounding of the Federal Republic of Yugoslavia in 1999 still fresh in people’s minds, and the discredited humanitarian justifications that formed part of the moral case for war against Iraq in 2003. At a general level, the idea that Western state interventions, especially if they lacked explicit UN authorisation, could bring about a more just order was challenged by many non-Western states. It is instructive to recall that, when the diplomatic debates about humanitarian intervention were in full flow, the 113 member-state Non-Aligned Movement three times rejected ‘the right of humanitarian intervention’ (Thakur 2007: 397). The Canadian-sponsored Commission on Intervention and State Sovereignty (ICISS) rightly neutralised some of these concerns by shifting the emphasis attached by Tony Blair and other Western state leaders on the just cause of the interveners, to the urgent needs of those who are – or are in danger of becoming – victims of atrocity crimes. In so doing, the ICISS was drawing on the insights of Frances Deng (currently the Secretary-General’s Special Advisor on the prevention of genocide) whose work on human security in Africa led him to frame international assistance as being in the interests of a state experiencing a humanitarian emergency. By seeing international action as enabling states to live up to their responsibilities, Deng had 87

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skilfully evaded viewing humanitarianism through an either (sovereignty)/or (intervention) prism (Welsh 2010: 418–19). Following the ICISS report, there were intense diplomatic negotiations culminating in the 2005 World Summit document, which was adopted unanimously by all heads of state (Bellamy 2010: 143–69). The attention to legitimating principles to justify military intervention for humanitarian protection that was front and centre in the ICISS report was dropped. Instead, the focus shifted to a ‘three-pillar strategy’ in which pillar one referred to ‘the responsibilities of the state’, pillar two to ‘international assistance and consensus building’, and pillar three to the international community’s response to take ‘timely and decisive’ action ‘to protect populations from genocide, ethnic cleansing, and crimes against humanity’. A ‘decisive response’ would only be triggered if national authorities ‘manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity’ (United Nations 2005). The UN Secretary General’s report of January 2009 sought to turn the relevant short paragraphs from the outcome document into a strategy for implementing R2P; it was broadly accepted by the General Assembly in October 2009 (Bellamy 2011: 43). The norm of humanitarian protection has evolved in the first decade of the twenty-first century in ways that few could have imagined. As Tom Weiss puts it graphically, ‘no idea has moved faster in the international normative arena’ (with the exception, he adds, of Raphael Lemkin’s efforts to prevent genocide in the 1940s) (Weiss 2011: 287). Libya showed that the Security Council is prepared to authorise intervention to halt or prevent atrocity crimes from being committed even when such action is opposed by the host state. While Libya is undoubtedly a gilt-edged case of lawful humanitarian intervention, it would be a mistake to assume that the curtain has fallen in relation to the global contest over coercive humanitarian protection.4 Alex Bellamy has persuasively argued that Libya is both a high point and an exceptional case (2011: 263–69). Three reasons stand out: first, Gaddafi’s stated intentions made it easy to argue that a ‘just cause’ threshold had been reached; second, decisive action was well within NATO’s grasp given the proximity of Libya and the asymmetry of military assets; third, critically important regional organisations supported the protection of civilians mandate. Concurrent with the humanitarian abuses being undertaken by Gaddafi and his supporters has been the brutal crack-down of opposition movements in Syria and in Bahrain: the relatively muted response by the Security Council – and especially by those countries most active in relation to Libya – has once again opened up the question of the selectivity of Western state responses to humanitarian emergencies. Libya is not going to be the last word on the question of authorisation. Indeed, the ambivalence shown by the five states that abstained in relation to the Security Council Resolution 1973 shows that future divisions on the Council are more likely than not. Take, for example, Brazil’s statement in the Security Council: ‘We are not convinced that the use of force as provided for in paragraph 4 of the resolution will lead to the realization of our common objective – the immediate end to violence and the protection of civilians’ (Bellamy 2011: 267). Paragraph 139 of the World Summit outcome document requires that any collective action in support of R2P must be ‘in accordance with the Charter, including Chapter VII’. This has led some commentators to argue that the 2005 outcome document closes the door on unilateral and regional action without prior Security Council authorisation (Weiss 2007: 117; Bellamy 2008: 623). By narrowing authority to the Security Council, giving affect to R2P means interrogating the terms under which host states accept or reject the claim on behalf of the international community that assistance or armed intervention is both just and necessary. The 88

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other critical implication of tying right authority solely to the Security Council is that it increases the likelihood that legitimation for future interventions may be sought outside its sphere of authority. Such an appeal has been heard over the last two decades, and of course reaches back into the history of European great powers pursuing foreign policies under the guise of a civilising mission. Even today, highly regarded scholars continue to believe that Security Council authorisation is not a requirement for the legitimacy of humanitarian intervention (United Nations 2009).5 Both of these positions, derived as they are from existing debates in the UN system, lead us to consider different models of military intervention that span the continuum from state-based consent to situations where UN bodies act without consent. These models open up the question of how governments should proceed in cases where the Security Council is unable to agree on timely and decisive action, and where particular states use force to prevent or stop a humanitarian emergency. As an analytical device, we have identified models of armed intervention that can be categorised in relation to whether the decisive action is consented to by the target government. The first category is that of consent-based models of intervention. It can be sub divided into: (1) consent freely given by a government and/or armed factions fighting within a territory, and (2) coerced and induced consent where a government and/or armed factions are persuaded to accept an intervention force through the use of positive rewards and/or the threat or use of coercive but non-forcible measures. The second category focuses on how the UN should proceed in cases where consent is not forthcoming. We divide these into the following five types:6 (1) Security Council authorisation; (2) the Security Council as a global jury; (3) General Assembly authorisation; (4) regional arrangements; (5) coalitions of the willing, retrospectively authorised or self-authorised (Ramsbotham and Woodhouse 1996).

Consent-based models of intervention Paragraph 138 of the World Summit document calls upon international society to ‘encourage and help’ member states to meet their humanitarian responsibilities. Far from weakening sovereignty, the wording in paragraph 138 is aimed at strengthening state capacity to protect populations from ‘genocide, war crimes, ethnic cleansing, and crimes against humanity’ (the four mass atrocity crimes). Yet, how this assistance is requested, by whom, and under what conditions, takes us into complex terrain about the co-relationship of agency and structure in situations of humanitarian emergencies.

Consent freely given In terms of the question of the legal/legitimate basis for authorisation of armed intervention, the least problematic cases arise in situations where the target state and/or armed factions within the state welcome outside support and assistance (including armed intervention) to help them protect endangered civilians. Ideally this will take the form of early preventive action, but cases have arisen, and can be expected to arise again, where prevention fails and decisive action is required to protect civilians from mass atrocities. A textbook case of this kind was the UK’s intervention in Sierra Leone in May 2000. The context for this military action was the collapse of the 1999 Lomé Accord. This agreement had initially ended the conflict between the Government of President Kabbah and the forces of the Revolutionary United Front (RUF). The latter refused to disarm as had been agreed and showed their contempt of the UN by seizing 500 of its peacekeepers (UNAMSIL) as hostages 89

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and by marching on the capital. Once again UN peacekeepers found themselves drifting into that most dangerous of situations where there was insufficient consent for peacekeeping but not enough combat capability for peace enforcement. The Blair government decided to intervene to stabilise the situation but not as part of UNAMSIL. The British mission prevented the fall of the capital to the RUF and rescued the peace process. What is significant about this case is that the British government deployed forces with the consent of the target government, though not with the consent of the RUF. This case is an important one because it shows that where the political will exists, foreign governments can respond in a timely and decisive manner to assist a state that is ‘manifestly failing’ to provide protection to its citizens. This type of intervention raises the question of what happens if the consent is subsequently withdrawn. An example of this is the implementation of the 1991 Paris Peace Agreement, which established the United Nations Transitional Authority in Cambodia (UNTAC). The mission was at the time ‘the largest and most expensive peacekeeping operation of its kind – the most expensive at US$2.8 billion; the largest at 22,000 strong’ (Roberts 1997: 3). The intervention was plagued by questions of consent, originally provided and subsequently withdrawn by the two main protagonists. The Party of Democratic Kampuchea (PDK), formerly the Khmer Rouge, was suspicious and resistant to the agreement from the outset. The Hun Sen government was a little more welcoming of the intervention, but it too threatened to retract its consent. Whilst the PDK saw the UN troops as supporting the Hun Sen government, Hun Sen considered that the UN would oppose his government staying in power because it was supported by Communist Vietnam. Ultimately, this withdrawal of consent undermined the ability of the UN forces to implement the Paris Agreement (Jennar 1994: 145–56). In this case and future situations of its kind, the question facing the UN is whether to enforce peace agreements on parties that backslide on their commitments.

Coerced and induced consent If the target state is opposed to military intervention on its soil, then the necessary consent for such deployments to prevent or end mass atrocities might be secured through positive inducements. But if this fails, consideration might be given to what we have elsewhere called ‘coerced consent’ (Wheeler and Dunne 2001: 805–29). The latter arises in cases where military forces are inserted into a situation requiring protection with the consent of the target state and/or armed factions inside the country, but this consent has only been secured through the threat or use of coercive (though non-forcible) measures. A good example of the direct application of coercive measures to secure consent is Indonesia’s reluctant decision on 12 September 1999 to permit an Australian-led international force to enter the territory of East Timor, over which Indonesia claimed sovereignty. The context for this was the violence that had immediately erupted on the island following the result of the referendum in which 75 per cent of the 98.6 per cent of registered voters had chosen independence. The Habibie government had stubbornly refused to consent to an international force to restore security, despite the fact that 1,000 people had been killed and up to a quarter of the population had been driven from their homes by pro-Indonesian militias who were opposed to independence. The coercive pressure to make Indonesia comply took the form of withdrawing IMF and World Bank loans and ending military assistance, and the role of the United States was decisive here (President Clinton 1999; Suzman and Thoenes 1999). In a speech on 9 September, President Clinton raised the spectre of the US acting to prevent Indonesia from obtaining much-needed IMF and World Bank loans. He stated that his ‘own willingness to support future assistance will 90

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depend very strongly on the way Indonesia handles this situation’. The president wanted to send a clear signal to political and military leaders in Indonesia that if the violence continued, ‘there will be overwhelming public sentiment to stop the international economic cooperation … nobody is going to want to continue to invest there if they are allowing this sort of travesty to go on’ (President Clinton 1999). The economic threat posed to Indonesia’s recovery after the Asian financial crisis by the loss of IMF and World Bank finance was compounded by the fact that this would send a clear signal to investors that Indonesia was a bad risk, leading to greater pressure on the stability of the currency and the economy in general. In addition to these economic considerations, the growing realisation that the crisis in East Timor was worsening was a key factor in Habibie’s decision on 12 September to agree to the deployment of a multinational force.7 The pressure applied against Jakarta was not just economic. It was also diplomatic, and this took three forms. First, it was highly fortuitous that the Asia Pacific Economic Cooperation (APEC) forum was meeting at heads of government level in Auckland at the same time as the crisis in East Timor was taking place. President Clinton and other world leaders were able to use the summit to pressurise Indonesian leaders into agreeing to the deployment of an international force to the island. The second factor was the mission sent by the Security Council to East Timor. The importance of this was that it demonstrated the strength of feeling in the Council on the question of Indonesia’s responsibility for the violence in East Timor to the Indonesian leadership. The third factor in the shaming of Indonesia was the strong consensus at the UN, best reflected in the open Security Council debate on 11 September, where the vast majority of the 50 or so governments present agreed that if Indonesia was unable or unwilling to restore security in East Timor then it should accept the offer of an international peacekeeping force (United Nations Security Council 1999b). The case of East Timor predates the development and adoption of R2P. However, it is an important illustration of how R2P might be operationalised in future situations of this kind. Had R2P existed in 1999, it is evident that the killings and ethnic cleansing that were committed in the aftermath of the referendum would have led to R2P being invoked, and a consensus quickly established that Indonesia was failing to live up to its responsibilities under paragraph 138 of the outcome document. East Timor is a good precedent because the Security Council was united that Indonesia was in breach of its legal and moral obligations to provide security for the East Timorese, and equally united in the pressures that were being applied to Jakarta. At the same time, there was no appetite in the Council for any armed intervention that lacked Indonesia’s consent, and Australia was emphatic that it would not intervene without a Chapter VII mandate, which Canberra knew would only be forthcoming if Indonesia gave its consent. It was accepted as a given of the discourse that unilateral action on the model of NATO’s intervention in Kosovo was unacceptable. Can the lessons of the East Timor case be applied to contemporary cases where mass atrocities have been and are taking place, such as Zimbabwe and the Sudan? Indonesia in 1999 was particularly vulnerable to the financial pressures that were applied against it, coming as they did in the wake of the Asian financial crisis. Is Harare or Khartoum vulnerable to such pressures? As the East Timor case shows, the role of the United States is likely to be essential to the success of any future strategy of coerced consent. It has been argued that Washington could have played a key role in coercing the Sudanese government to comply with UN resolutions over Darfur and to end its complicity in the violence there. Susan Rice – former Assistant Secretary of State for African Affairs in the Clinton administration and US Ambassador to the UN in the Obama administration – called in a speech in February 2007 for stronger coercive pressures to be employed against Khartoum. Her focus 91

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was the latter’s refusal to allow into Darfur the UN peacekeeping force that had been given a Chapter VII mandate of civilian protection in Security Council Resolution 1706. She argued that the Bush administration should impose crippling financial sanctions (going well beyond the asset freeze agreed to by the Security Council in 2005) against the Sudanese government, and that these should not be lifted until the peacekeeping force had fully deployed and Khartoum had permanently and verifiably stopped all air and ground attacks in Darfur (Rice 2007). In discussing Darfur, Gareth Evans has argued that it ‘remains, on any view, an “R2P situation”’, and he agreed with Rice that tougher measures should have been employed against Khartoum. At the same time, Evans has not been persuaded that Darfur satisfies the relevant precautionary criteria that should be applied when considering the use of force for protection purposes (crucially on the question of whether force would do more good than harm). Consequently, he has looked to the international community to adopt other measures to coerce Khartoum into meeting its responsibilities for protection. But it is here that he has been disappointed in view of the fact that the international community has failed to apply the ‘sustained diplomatic, economic, and legal pressure to change the cost–benefit balance of the regime’s calculations’ (Evans 2008: 61). Another factor that militated against coercive intervention under a Chapter VII resolution was divisions in the Council over whether the Sudanese government has abdicated its sovereign responsibilities for protection. Those states on the Security Council that opposed applying stronger coercive measures against Khartoum, anticipated the position that later materialised in paragraphs 138 and 139 of the outcome document, by arguing in 2002–3 that the crisis in Darfur had not yet reached the point where it was reasonable to argue that Sudan was failing in its responsibilities (Bellamy 2006: 31–54). This raises the question of what should happen if the Security Council is divided on the question of whether a government – to use the language in paragraph 139 of the outcome document – is ‘manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity’. It is to the role of the Security Council in authorising non-consensual intervention that we now turn.

UN and non-UN models of forcible non-consensual intervention The rest of this chapter focuses on situations where consent for military intervention has not been secured – willingly or unwillingly – from the target state. Starting with the least controversial model where the Security Council authorises member states and/or regional organisations to use force for protection purposes under Chapter VII, we go on to identify six alternative models that have been proposed as a way of securing legitimacy for military intervention in cases where the Security Council fails to act in a timely and decisive manner to prevent or end mass atrocities.

Security council authorisation The statement in the 2005 outcome document that the UN needed to stand ‘prepared to take collective action, in a timely and decisive manner’, through the Security Council, was a momentous one when looked at alongside the resistance shown during the Cold War to interpreting the Charter in this way. During this earlier period in the UN system, the threat to 92

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‘international peace and security’ was narrowly defined in terms of countering cross-border aggression. As a consequence, humanitarian sentimentality and humanitarian action were in constant tension (Wheeler 2000). Today, it is becoming less and less conceivable that the Security Council would oppose a state or group of states seeking a mandate to end genocide, mass killing and large-scale ethnic cleansing on the grounds that this violated sovereignty. What changed in the first decade after the end of the Cold War was the Security Council’s expansion of the boundaries of legitimate intervention by defining humanitarian emergencies inside a state’s borders as a threat to ‘international peace and security’.8 In the second decade of the post-Cold War period, the UN Security Council has shown a willingness to use force for human protection purposes, with action mandated by UNSCR 1973 against the Gaddafi and UNSCR 1975 against Gbagbo in the Cote d’Ivoire being the two most recent instances (Bellamy and Williams 2011: 825–50). Three caveats need to be borne in mind when claiming that there is now a developed international norm in relation to the protection of endangered populations. The first is that governments remain extremely sensitive about jettisoning the prerogatives of sovereign statehood. Relatedly, the United Nations was created to prevent wars, not to become an instrument for their propagation. In consequence of both factors, in the absence of target state consent, the Security Council is only going to authorise armed action to protect fellow humans in exceptional circumstances and where it is believed that the costs of military action are massively outweighed by the moral consequences of inaction. The bar, then, for UN-authorised humanitarian intervention is set very high, and most states will support such action only in cases of genocide and mass killing, and where it does not impinge upon important interests. Second, the claim that there is a developed international norm to protect civilians is hollow when viewed from the perspective of the millions who have perished in the past ten years from genocide and war in Rwanda, Sudan, and the Democratic Republic of the Congo (DRC). In the case of NATO’s intervention in Kosovo, the major Western states were prepared to employ force for a complex mix of humanitarian and security reasons. But the emergent norm of civilian protection was insufficient to motivate these same governments to put their troops in harm’s way to save Rwandans from genocide in 1994. Though the norm enables new possibilities of intervention, it does not ensure that such actions will take place when they are morally required. The moral limitations of the project of humanitarian intervention in the 1990s can be seen in the fact that in no case have states intervened when there were no vital interests at stake and/or where there were perceived to be significant risks to the lives of the intervening forces. This produces a pattern of intervention that is highly selective, frequently driven by considerations of national self-interest rather than humanitarian need.9 It also ensures that, when intervention does take place, it is widely viewed as morally hypocritical, a rhetorical instrument that rationalises the projection of force by the powerful. The US-led war against Iraq in 2003 is only the latest intervention where this long-standing critique can be strongly heard. The third point to bear in mind when considering the advocacy of a ‘developing norm’ of UN-authorised humanitarian intervention is the fact that the consensus over armed intervention does not extend to unilateral action (defined as an intervention not authorised by the Security Council). This raises the vexed question of how the international community should proceed if Security Council members – especially the permanent members – are divided over whether a particular case warrants armed intervention. This is the moral and legal conundrum that was posed by NATO’s action in Kosovo. 93

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The Security Council as a global jury It is clear from the Security Council’s response to NATO’s use of force against Yugoslavia that ringing statements of principle about the illegality of unilateral action are not necessarily a reliable guide to how states will react in specific cases where they have to balance conflicting legal and moral concerns. The 2001 report by the International Commission for Intervention and State Sovereignty (ICISS) had suggested that the prospect of future unilateral actions could be helpful in sending a clear message to the Security Council that it would undermine its authority if it failed to exercise what the ICISS viewed as ‘its responsibility to protect, in a conscience-shocking situation crying out for action’ (ICISS 2001: 55). If this was a veiled reference to Kosovo, then it overlooked the fact that the Council was divided on what constituted the proper exercise of its ‘responsibility’ in this case. One key theme that underlies some of the statements in the Council during the Kosovo crisis was that Russia and China had behaved irresponsibly by threatening to veto a draft resolution authorising NATO’s use of force (United Nations Security Council 1999a). Such an interpretation of the case led the ICISS to recommend that ‘[t]he Permanent Five members of the Security Council should agree not to apply their veto power, in matters where their vital interests are not involved, to obstruct the passage of resolutions authorizing military intervention for human protection purposes for which there is otherwise majority support’ (ICISS 2001: xiii). A difficulty with this proposal is that it ignores how far Russia and China might have had genuine misgivings about whether the use of force was justified to end the humanitarian crisis, absent whatever instrumental reasons they may also have had to oppose NATO’s armed intervention. The conundrum that faced Security Council members over Kosovo was that whilst NATO’s intervention was a clear breach of specific provisions of the Charter, the illegality of its action had to be weighed against the moral imperative to rescue the Kosovars. The result was that the majority of non-Western states on the Council operated an international equivalent to mitigation in domestic law systems. The best evidence for this is the defeat by 12 votes to three (Russia, China, and Namibia) of the Russian draft resolution demanding a halt to the bombing. Five states on the Council were members of NATO, but the other seven votes were cast by Slovenia (a friend of the West and strongly opposed to the Miloc´evic´ regime), Argentina, Brazil, Bahrain, Malaysia, Gabon, and Gambia. These Council members rejected the Russian resolution because they accepted that NATO’s action was justifiable on humanitarian grounds. Having witnessed the horrific consequences of Serb ethnic cleansing in Bosnia and fearful that this was about to be repeated in Kosovo, they were persuaded that such atrocities could not be tolerated again. Thomas Franck argued that ‘the essence of mitigation is that the law recognises the continuing force of the rule in general, while also accepting that in extraordinary circumstances, condoning a carefully calibrated and justifiable violation may do more to rescue the law’s legitimacy than would its rigorous implementation’ (Franck 2002: 185). Supporting this legal interpretation of the case, NATO did not rely on an explicit legal rationale (the only exception was the United Kingdom),10 and its claim to be acting to prevent a humanitarian emergency could be interpreted as a plea in mitigation. Franck argued that when faced with such pleas, the role of the UN’s political organs – crucially the Council – is to act as ‘a global jury’ (Franck 2002: 186) in which the text of the Charter is balanced against the moral necessities of the case. The moral and legal responsibility that falls on those who intervene without Council authority is to persuade the Council – and wider global opinion – that its action should be 94

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excused or tolerated on humanitarian grounds. And if states are not condemned by the Security Council for breaking the law in such cases, or only pay a minor penalty for such infractions, it seems reasonable to conclude that the Security Council would be operating a principle of mitigation as it did over Kosovo. Libya is an interesting example of the ‘global jury’ idea at work. Although the abstentions on Resolution 1973 by five countries indicated the contentious nature of this decision, this must be tempered by the fact that it was not contentious enough to provoke a veto from a permanent member. Even though they abstained, Russia and China chose not to veto the resolution or to campaign such that there was an insufficient majority in favour, despite expressing very real concerns about the relationship between the ambition of the mandate and the military means that would be used. ‘Constructive abstention’ was a markedly different strategy on the part of Russia and China compared to their active campaign against attempts to secure Security Council authorisation for the Kosovo intervention in 1999.

Uniting for protection: General Assembly authorisation According to paragraph 139 of the World Summit document, collective action in support of R2P must be ‘in accordance with the Charter, including Chapter VII’. If the Security Council fails to take action to prevent or end mass atrocities because of the threat or use of the veto, then there is the alternative of seeking General Assembly approval for military intervention. The General Assembly has competence under the Charter to recommend (but not authorise) military measures when the Security Council is unable to exercise its ‘primary responsibility for maintaining international peace and security’. Although the ICISS report argued that the task was to make the Security Council work better, it did recommend that recourse might be made to the General Assembly if the threat or use of the veto was blocking an intervention for protection purposes that had majority support. The Commission argued that states should always request Council authorisation before having recourse to this alternative UN route (NATO failed this test over Kosovo), and that if the veto was exercised in such circumstances, consideration should be given to convening a special session of the General Assembly under the 1950 ‘Uniting for Peace’ Resolution (ICISS 2001: 53). Adopted at the height of the Cold War, this resolution was a way of bypassing the Soviet veto in the Security Council. However, it is important to realise that there is no constitutional basis in the UN Charter for the General Assembly to override the right of veto granted to permanent members of the Security Council in Article 27 (3). The advantages of using the General Assembly to legitimise (but not legalise) military intervention for protection purposes are two-fold: first, in negating the veto power of the P5 in circumstances where they are unwilling to act in the face of the most severe humanitarian crises, it nevertheless keeps collective action within the bounds of the UN system (as required by paragraph 139 of the outcome document). Second, if a two-thirds majority for military action could be secured in the General Assembly, then this would give a significant measure of international legitimacy to an intervention. As Gareth Evans wrote: ‘if a decision were supported by an overwhelming majority of member states, it would provide a high degree of legitimacy for a military intervention (and had the procedure been tested in the cases of Rwanda and Kosovo, it is conceivable that there would have been such support)’ (Evans 2008: 136). Would NATO have secured majority support in the Council had it been able to evidence widespread support in the General Assembly? Whether in the event of a Russian or Chinese veto, a resolution supporting military action prior to the commencement of hostilities would have elicited the necessary two-thirds majority in the General Assembly is an intriguing counterfactual. Some NATO governments (notably Canada)11 suggested this course of action over 95

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Kosovo, but it was the negative consideration of pursuing this option that weighed heavier with NATO member states, especially the United Kingdom and the United States. London publicly claimed that it did not go down the ‘Uniting for Peace’ road over Kosovo because the General Assembly lacked the legal competence to determine enforcement action of this kind.12 However, this legal argument belied the fact that the United Kingdom was nervous that the alliance would secure a two-thirds majority in the Assembly recommending military action. There were two further political factors that militated against using the Assembly at the time and which remain pertinent today. The first was that had the vote been close, or even lost, then this would have damaged NATO’s claims to be acting on behalf of the moral purposes of wider international society as embodied in the three Chapter VII resolutions demanding that the Federal Republic of Yugoslavia end its large-scale ethnic cleansing. Second, some NATO governments were very conscious that giving the Assembly this degree of legitimacy would erode the power of the veto in the Council. The United Kingdom and the United States felt it was necessary to bypass the veto in this particular case, but they did not want to issue a direct challenge to the legitimacy of the veto. One of the concerns here was that such a precedent might embolden the Non-Aligned Movement (NAM) to use the Assembly to adopt a resolution recommending military action against Israel. Given these political considerations, the three Western permanent members of the Council firmly opposed proposals that would have enhanced the role of the General Assembly vis-à-vis the Council. Moreover, this position was supported by Russia and China, who were determined to maintain the primacy of the Council since it is the one body where they continue to have major influence in the global arena.

Regional arrangements Chapter VIII of the UN Charter recognises an explicit role for regional organisations in the promotion of international peace and security: in the words of the Charter, ‘no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council’. Consequently, it is important to distinguish between regional organisations that act as sub contractors of the UN and regional actors that act independently without prior UN authorisation.13 There have been cases of military intervention by regional bodies that have not had prior UN authorisation. For example, the Economic Community of West African States (ECOWAS) monitoring group interventions in Liberia in 1992 and Sierra Leone in 1997 (Levitt 1998: 333–75). However, in both of these cases, the Security Council provided an important measure of what the ICISS called ‘ex post facto authorization’ in resolutions adopted after the interventions had taken place (International Commission on Intervention and State Sovereignty 2001: 54; Sylvan 2002: 107). These precedents led the ICISS to propose that where the Security Council was unable or unwilling to act, recourse might be made to regional arrangements and organisations. This position finds support in Susan Rice and Andrew Loomis’s 2007 recommendation that ‘[d]ecisions to support intervention by relevant or concerned regional bodies should be deemed sufficient to legitimize action by their members when Security Council authorisation is sought but not forthcoming’ (Rice and Loomis 2007: 91). NATO’s unilateral (defined as nonSecurity Council authorised) intervention in Kosovo is the most dramatic example of regional action of this kind, though it would fail Rice and Loomis’s test because NATO did not formally table a resolution seeking Security Council authorisation. Building on the precedents of Liberia and Sierra Leone, African states have shown an increasing willingness to develop both the capacity and legal framework to conduct armed 96

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interventions for protection purposes. Within a short period after the ICISS published its report, the African Union (AU) produced a new charter that mandated intervention in certain circumstances, even without Security Council authorisation. Article 4(h) of the Constitutive Act of the AU establishes ‘the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity’. Turning the AU’s humanitarian commitments into effective civilian protection remains a daunting task as its role in Darfur has shown. Despite Article 4(h), the AU has been reluctant to act without Khartoum’s consent, which has claimed that it is capable of protecting its own citizens. Nevertheless, as Rice and Loomis have argued, the AU was ‘the only international actor willing to face bullets to save civilians in Darfur’ (Rice and Loomis 2007: 81). It deployed a 7,000-strong force with a mandate of humanitarian protection and assisting in the process of confidence-building between the warring parties. But it has been severely hampered in these efforts by inadequate resources and logistic support, despite contributions from Western governments. Others have argued that the AU force ‘is largely an observer mission’ that ‘can only protect civilians when they are being attacked in its presence, and only then if it feels it has enough troops to intervene – and too often it does not’ (Grono 2006: 626). In 2006 the AU recognised the limitations of its efforts at civilian protection and called for a larger UN force to replace it. In response the Security Council adopted under Chapter VII Resolution 1706, which called for a force of 22,000 to provide protection of civilians in Darfur. There have been some discussions as to whether the AU could intervene to end the human rights violations in Zimbabwe. Prime Minister Raila Odinga of Kenya called in December 2008 for the African Union to oust Zimbabwean President Robert Mugabe. However, his plea has fallen on deaf ears and it is highly unlikely that the AU will forcibly intervene in Zimbabwe. Even if there was a will among AU states to risk their soldiers’ lives, there are severe limits on the political, financial, and military capacities of the AU as an intervention force. What would change this verdict is if the violence reached genocidal levels, but even then the AU would need considerable outside logistic and military support to mount an operation of this kind. Capacity building is clearly a key challenge facing the AU, and this underlines the urgency of realising the G8 commitment to train and equip peacekeepers in Africa.14 However, even if the AU develops the capacity to act in a timely and decisive manner in the face of mass atrocities, there will remain the question as to whether African governments have sufficient solidarity and interests with their neighbours to place their forces in harm’s way. Henry Kissinger’s quip that Europe is not a meaningful actor because ‘no one will die for Europe’ could be applied analogously to the AU or any other regional organisation. Regions have yet to be regarded by their inhabitants as shared communities of fate, in the way that ‘nation’ and ‘state’ became conjoined in the modern imaginary. The NATO-led bombing of Libya in 2011 adds another dimension to the regional–global authorisation nexus. In terms of the implementation of Resolution 1973, it was always going to be the case that NATO attack aircraft would be policing the no-fly mandate. The Libya case, however, throws into sharp relief another regional dynamic, namely the power of regions as enablers of Security Council action. There are two notable aspects to the growing power of regions in the diplomacy of responsibility. First, China’s position on R2P in the Security Council ‘relies heavily on the views of regional organisations to justify its stance’ (Teitt 2008: 16). Second, a more generalised view that regional support is a necessary but not sufficient condition for the Security Council to engage in an enforcement action without the consent of the host state. Bellamy and Williams refer to this as ‘a “gatekeeping role” by establishing the 97

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conditions under which the Security Council should consider adopting enforcement measures’ (Bellamy and Williams 2011: 839). Time will tell whether this claim is an overstatement; nevertheless, their general view about the growing power of regions in relation to R2P is well taken.

Coalitions of the willing As we noted earlier, the ICISS report had suggested that the prospect of unilateral action could be helpful in sending a clear message to the Security Council that it would undermine its authority if it failed to effectively respond to conscience-shocking atrocities. There is no case where a coalition of states have formally requested Council authorisation for an intervention to prevent or end mass atrocities, and this has been rejected on grounds that such an action would breach a state’s sovereignty. What is often overlooked is that the ICISS report was emphatic that recourse to alternative sites of legitimation would only become possible if a majority of council members supported an armed intervention, and this democratic ‘will’ was then frustrated by the exercise of the veto. It followed that if majority support was lacking in the Council, then this effectively closed the door on states utilising these other alternatives to the Council. The attempt by ICISS to legitimate an exception to a strict reading of the Charter has been rejected by those who see it as too permissive, as well as by those who see it as too constraining of such interventions. With regard to the former, the agreement in paragraph 139 of the Outcome document that any action to protect populations must be taken through the existing collective security machinery of the Charter can be seen as an attempt to firmly bolt the door that ICISS had tried to prize open. For those who viewed the requirement to table a resolution seeking approval for military action as overly restrictive, paragraph 139 cannot be the last word on the legitimacy of intervention in the face of a supreme humanitarian emergency. Supporters of this view recognise that governments that act without Council authorisation take on ‘the burden of persuading governments, courts, and the public of the propriety of [their] actions’ (Sofaer 2000: 16). Rice and Loomis, for example, argued that in seeking posthoc legitimation for their actions, a ‘coalition of the compassionate’ should be ready to defend their actions in the following terms: When all else fails, a member state or coalition of members may intervene to save lives at their own risk and expense and seek retroactive UN or regional support. In this instance the gravity of the humanitarian crisis, the purity of humanitarian motives, and the efficacy and proportionality of the military action should be critical considerations in the achievement of ex post facto legitimization. Member states that take such action should be prepared to have their intervention formally condemned and penalties assessed if it fails to meet the above criteria. (Rice and Loomis 2007: 91) Rice and Loomis were making a number of assumptions here that should be questioned. First, there is no agreement on the criteria that should be employed to judge the legitimacy of an intervention of this kind, and little or no likelihood of any such consensus being reached at the UN in the near to medium term. Second, even if it is possible in the future to reach an agreement on criteria, it is mistaken to think that this will resolve the disagreements that have paralysed Security Council action in cases like Kosovo and Darfur. The problem is that governments might agree on the relevant criteria to be applied but disagree over their application in specific cases. This difficulty can be seen in the debate over whether force should have been used to end the human 98

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suffering in Darfur. Rice, Loomis, and Evans all agree that Darfur is a case where R2P should be applied, but the latter disagrees with Rice and Loomis on the question as to whether the use of violent means can promote humanitarian ends in this case (cf. Evans 2008: 145; Rice and Loomis 2007: 91–92; Bellamy 2009: 627).

Conclusion Protective interventions do not easily map onto a straightforward matrix in relation to consent freely given or denied. We should not be surprised by this: in relation to the use of force, it will always be politics all the way down, and decisions will always be contingent and subject to caseby-case considerations. This alone should give us pause for thought in claiming ‘a new norm’ has been accepted in relation to the humanitarian protection regime. Norms and precedents are negotiated and contested – they seldom cascade in a linear fashion as implied by constructivist thinking during the 1990s (Finnemore and Sikkink 1998: 887–917). As this chapter has noted, the question of authorisation is one that polarises the founding R2P documents – the ICISS report and the 2005 Outcome document. In seeking to foreclose interventions that lacked express Security Council authorisation, the Outcome document retreated from the important attempt in the ICISS report to provide a humanitarian emergency exit from the strict procedural rules of the UN Charter. One might conclude, on this basis, that the UN is no better placed today to cope with a future Kosovo than it was in 1999, when the Security Council was divided over the merits of preventive armed intervention. NATO’s unilateralism over Kosovo demonstrates that Western governments are not always prepared to wait for Council authorisation when they believe that the preventive use of force is necessary to protect endangered peoples. In such situations, the real question is: who is acting irresponsibly; those who seek to end the killings in the absence of a clear UN mandate or those who argue that such actions break international law and hence undermine the rules restricting the use of force? How the moral imperative to save endangered peoples can be satisfied, in cases where the Security Council is unwilling or unable to act without this generating the negative political repercussions that inevitably accompany unilateral action, remains a challenge that advocates of R2P continue to wrestle with. The best defence of NATO’s action in Kosovo is that it was an anticipatory intervention aimed at preventing a humanitarian catastrophe. But interventions of this kind are always going to be the most difficult to legitimate, especially to governments that are nervous about any erosion of the principles of sovereignty and non-intervention. It becomes much easier to justify using violent means when the target state has committed mass atrocities that have been widely reported in the media. However, any armed rescue that then takes place will come too late for many. This assessment also applies to the mobilisation of non-forcible coercive pressures as in the case of East Timor. It would not have been possible to mobilise the economic and political pressures on Jakarta to secure its consent to an international force in the absence of the rising levels of violence in East Timor. The case of Rwanda offers a further illustration of how outside intervention only becomes possible once the killings and violence have been reported. It is the case that the barrier to intervention, once the genocide had started in 1994, was not the lack of UN authority but the absence of political will. It is inconceivable that the Security Council would have blocked a non-consensual forcible intervention on the grounds that this violated Rwanda’s sovereignty. However, if the clock is turned back to January 1994, when the UN force commander was seeking a change of mandate to permit peace enforcement operations against the governmentsponsored Hutu militias who would spearhead the genocide, it is by no means evident that the 99

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Security Council would have authorised an armed intervention. Yet we now know that such action was desperately needed and might have prevented the subsequent genocide. Without the benefit of hindsight, Council members – perhaps a majority – would have worried in the months preceding the genocide that a non-consensual intervention of this kind posed too great a challenge to the principles of sovereignty and non-intervention upon which interstate order is founded. Prevention might be the most important dimension of operationalising R2P, but more consideration needs to be given to how far prevention requires a coercive military element (as in Rwanda and East Timor), and how anticipatory actions of this kind can be legitimated to wider international and domestic publics. The Libya intervention gives reasons to be cautiously optimistic about whether authorisation has moved beyond the terms of the debate conducted in the ICISS and the UN General Assembly earlier this decade. Despite voicing concerns about the utility of force, Russia did not veto the action, preferring ‘constructive abstention’ (in stark contrast to Kosovo). Libya and the Cote d’Ivoire Security Council resolutions indicated a renewed commitment to take ‘all necessary means’ to protect civilians, even when such muscular mandates invoke concern in many capitals around the world. Moreover, the liberation of Libya from Gaddafi’s tyranny in early August 2011 now stands as a new and rare case where the Security Council called for robust and effective action – and a coalition led by the United States, Britain, and France responded decisively.

Notes 1 Some of the ideas in this chapter were first presented by Wheeler to a workshop on ‘Operationalising the Responsibility to Protect’, which was organised by NUPI and held on 29–30 October at Holmen Fjordhotel outside Oslo. Nicholas Wheeler would like to thank all the participants at the workshop for their contributions. Both authors are grateful to Alex Bellamy, Frazer Egerton, Kristin Marie Haugevik, and Eli Stamnes for their comments on earlier drafts; and Frazer Egerton, Stephanie Ganeson, Vincent Keating, and Rachel Owen for the excellent research assistance they provided. 2 Annan was not of course the first person to set out the idea of sovereignty as responsibility; see Cohen and Deng (1998). 3 Insights on Libya in this chapter are drawn from Dunne and Gifkins (2011). 4 The phrase ‘protective intervention’ is Ramesh Thakur’s; see his excellent contribution on ‘Humanitarian Intervention’ in Weiss and Daws (2007: 398). 5 The UN Secretary General’s report ‘Implementing the Responsibility to Protect’ (United Nations 2009) acknowledges this in fn. 9, p. 22. For a different kind of rationale, based on an alternative legitimation to the UN system, see Ikenberry and Slaughter (2006: 7–8) and Rice and Loomis (2007: 59–95). 6 We are grateful to Alex Bellamy for his thoughts on these categories, and have benefited from the conceptual framework developed in Ramsbotham and Woodhouse (1996). 7 According to Stephen Fidler and Gwen Robinson, this pressure ‘was instrumental in persuading Indonesia to accept an international peacekeeping force’ (1999). 8 It would be wrong to give the impression that the pushing out of the boundaries of legitimate intervention was uncontested. Rather, as the deliberations over intervention in northern Iraq in 1991 and in Somalia in 1992 demonstrated, there was resistance from those states that worried about setting precedents that might erode the principle of non-intervention; see Wheeler (2000: 139–207). 9 In some cases military intervention is rightly ruled out on the grounds that armed action would do more harm than good (Chechnya and Tibet are obvious examples here). As Michael Ignatieff notes: ‘perfect consistency is a test of legitimacy that political action can never meet, and hence the prerequisite of consistency serves (even if it does not intend to do so) either as a justification for doing nothing or as a condemnation of any intervention actually undertaken’ (Ignatieff 2005: 60). 10 As Wheeler argues in Saving Strangers, the UK government during the Kosovo campaign sought to advance a ‘necessity’ case for the legality of force without UN Security Council backing (Wheeler 2000: 276–77).

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11 Elicited from Nicholas Wheeler’s interviews with Canadian officials in 2001–2. 12 See the testimony of Emyr Jones Parry, Political Director of the Foreign Office, to the House of Commons Foreign Affairs Committee (Parry 2000: 67). 13 We are grateful to Kristin Marie Haugevik for this distinction. 14 ‘G8 Report on Peacekeeping/Peacebuilding’, http://www.g8italia2009.it/static/G8_Allegato/PK_ PB__Report,0.pdf, July 2009, accessed 10 October 2011.

Bibliography Bellamy, Alex J., 2006. ‘The Responsibility to Protect and Darfur’. Ethics and International Affairs, 19 (2): 31–54. ——2008. ‘The Responsibility to Protect and the Problem of Military Intervention’. International Affairs, 84 (4): 615–39. ——2009. Responsibility to Protect. Cambridge: Polity Press. ——2010. ‘The Responsibility to Protect: Five Years On’. Ethics and International Affairs, 24 (2): 143–69. ——2011. ‘Libya and the Responsibility to Protect: The Exception and the Norm’. Ethics & International Affairs 25: 263–69. Bellamy, Alex J. and Paul D. Williams, 2011. ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (4): 825–50. Cohen, Roberta and Francis M. Deng, 1998. Masses in Flight: The Global Crisis of Internal Displacement. Washington, DC: Brookings Institution. Dunne, Tim and Jess Gifkins, 2011. ‘Libya and the State of Intervention’. Australian Journal of International Affairs, 65 (5): 515–29. Evans, Gareth, 2008. The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All. Washington, DC: The Brookings Institution. Fidler, Stephen and Gwen Robinson, 1999. ‘IMF and World Bank Played Role in Climbdown: East Timor Lobbying Effort Exposes Divisions over Wisdom of Sanctions’. The Financial Times, 13 September. Finnemore, Martha and Katherine Sikkink, 1998. ‘International Norm Dynamics and Political Change’. International Organization, 52 (4): 887–917. Franck, Thomas, 2002. Recourse to Force: State Action Against Threats and Armed Attacks. Cambridge: Cambridge University Press. Grono, Nick, 2006. ‘Briefing-Darfur: The International Community’s Failure to Protect’. African Affairs, 105 (421): 626. Ignatieff, Michael, 2005. ‘Human Rights, Power and the State’. In Making States Work, ed. S. Chesterman, M. Ignatieff, and R. Thakur. Tokyo: United Nations University Press. Ikenberry, G. John and Anne-Marie Slaughter, 2006. Forging a World of Liberty Under Law: US National Security in the 21st Century: Final Report of the Princeton Project on National Security. Princeton, NJ: Princeton Project for National Security. International Commission on Intervention and State Sovereignty (ICISS), 2001. The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty. Ottawa: International Development Research Centre. Jennar, Raoul M., 1994. ‘UNTAC: “International Triumph” in Cambodia?’. Security Dialogue, 25 (2): 145–56. Levitt, Jeremy, 1998. ‘Humanitarian Intervention by Regional Actors in Internal Conflicts: The Cases of ECOWAS in Liberia and Sierra Leone’. Temple International and Comparative Law Journal, 12 (2): 333–75. Okumu, Wafula, 2008. ‘As the World Fudges, Zimbabweans Should Act to End their Nightmare’. Daily Nation, http://www.nation.co.ke/News/africa/-/1066/499836/-/view/printVersion/-/2adspvz/-/index. html (accessed 10 December 2008). Parry, Emyr Jones, 2000. ‘Fourth Report, Kosovo’, House of Commons Foreign Affairs Committee, 18 November: 67. President Clinton, Bill, 1999. ‘Statement by the President on East Timor’, 9 September 1999, www. usinfo.state.gov/regional/ea/timor (accessed 6 July 2001). Ramsbotham, Oliver and Tom Woodhouse, 1996. Humanitarian Intervention in Contemporary Conflict. Cambridge: Polity Press. Rice, Susan E., 2007. ‘The Escalating Crisis in Darfur’. Speech before the Spring Africa Speaker Series, SAIS. Johns Hopkins University, 21 February.

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Nicholas J. Wheeler and Tim Dunne Rice, Susan and Andrew J. Loomis, 2007. ‘The Evolution of Humanitarian Intervention and the Responsibility to Protect’. In Beyond Preemption: Force and Legitimacy in a Changing World, ed. I. H. Daalder. Washington, DC: The Brookings Institution. Roberts, David, 1997. ‘More Honoured in the Breech: Consent and Impartiality in the Cambodian Peacekeeping Operation’. International Peacekeeping, 4 (1): 3. Sofaer, Abraham, 2000. ‘International Law and Kosovo’. Stanford Journal of International Law, 36 (1): 16. Suzman, Mark and Sander Thoenes, 1999. ‘US Halts Military Links in Move on East Timor Violence’. The Financial Times, 10 September. Sylvan, Donald, 2002. International Intervention: Sovereignty versus Responsibility. London: Routledge. Teitt, Sarah, 2008. China and the Responsibility to Protect. Asia Pacific Centre for R2P report, http://www. responsibilitytoprotect.org/files/China_and_R2P%5B1%5D.pdf (accessed 14 June 2010). Thakur, Ramesh, 2007. ‘Humanitarian Intervention’. In The Oxford Handbook on the United Nations, ed. T. Weiss and S. Daws. Oxford: Oxford University Press. United Nations, 2005. World Summit Outcome, A/RES/60/1, 24 October, http://www.un.org/democracyfund/Docs/2005 World Summit Outcome.pdf (accessed 15 November 2010). ——2009. Implementing the Responsibility to Protect: Report of the Secretary-General, A/63/677, 12 January, http://www.un.org/ga/search/view_doc.asp?symbol=A/63/677 (accessed 15 November 2010). United Nations Security Council, 1999a. ‘Kosovo UN Documents’, S/PV.3988, 24 March, http://www. securitycouncilreport.org/site/c.glKWLeMTIsG/b.2693011/ (accessed 15 November 2010). ——1999b. ‘4043rd Meeting of the Security Council’, S/PV.4043, 11 September, http://www.un.org/peace/ etimor/docs (7 July 2001). Weiss, Thomas G., 2007. Humanitarian Intervention. Cambridge: Polity Press. ——2011. ‘RtoP Alive and Well after Libya’. Ethics and International Affairs: 287–92, http://journals.cambridge. org/action/displayAbstract?fromPage=online& aid = 8381063 (accessed 26 August 2011). Weiss, T. and S. Daws, eds. 2007. The Oxford Handbook on the United Nations. Oxford: Oxford University Press. Welsh, Jennifer M., 2010. ‘Implementing the Responsibility to Protect: Where Expectations meet Reality’. Ethics & International Affairs, 24 (4): 418–19. Wheeler, Nicholas J., 2000. Saving Strangers: Humanitarian Intervention in International Society. Oxford: Oxford University Press. Wheeler, Nicholas J. and Tim Dunne, 2001. ‘East-Timor and the New Humanitarian Interventionism’. International Affairs, 77 (4): 805–29.

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8 WHO SHOULD ACT? Collective responsibility and the Responsibility to Protect Jennifer M. Welsh

The 2005 Summit marking the sixtieth anniversary of the United Nations saw unanimous endorsement of the principle of ‘the Responsibility to Protect’ (also known as R2P). Article 138 of the Summit Outcome document acknowledges the responsibility of individual sovereign states to protect their own populations from four specific crimes: genocide, crimes against humanity, war crimes, and ethnic cleansing. The subsequent paragraph, Article 139, endows the international community with the remedial responsibility to take collective action when national authorities ‘are manifestly failing to protect their populations’ from such crimes.1 Proponents of R2P (who include the current UN Secretary General, Ban Ki-moon, and his predecessor, Kofi Annan) insist that the principle of R2P involves not only a responsibility to respond to gross violations of human rights, but also to prevent such atrocities and to help societies rebuild from conflict. The notion that individual states have a responsibility to protect their populations has a long pedigree in political theory,2 and since 1945 has been recognized in both international human rights law and the law of state responsibility.3 However, the idea that the international community might have not only a right, but a responsibility, to protect individuals inside the jurisdiction of a particular state is both novel and controversial. It was precisely this bolder claim that the Canadian-sponsored International Commission on Intervention and State Sovereignty (ICISS) sought to promulgate in its 2001 report, The Responsibility to Protect.4 This chapter examines the nature of the collective responsibility to protect now alleged to reside with the international community. In the first section, it shows how, as originally conceived by ICISS, the principle of R2P contained dilemmas and ambiguities with respect to collective responsibility. Chief among these were the lack of clarity around the source of the international responsibility to protect, and the failure to assign responsibility to a specific agent within international society. Both threatened to create a moral vacuum that would continue to leave civilians in a perilous position. The second section focuses on the political commitments entailed by the 2005 Summit Outcome document. Although the statement identifies a particular agent that now bears the international responsibility to protect – namely, the United Nations Security Council – it does not address the gaps in protection that may result from reliance on this body. Nor has it established how the bearer of the collective responsibility to protect might be held accountable for failures to act. 103

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From a right to a responsibility: a progressive move? The primary purpose of ICISS was to respond to the call of then UN Secretary-General Kofi Annan for a new global consensus on the legitimacy of international action to save civilians from mass atrocities.5 If Rwanda in 1994 had seen slow and late action by the UN to address the genocide, Kosovo in 1999 had witnessed a military intervention by an international organization that had not been authorized by the UN to protect civilians. ICISS’ primary contribution to consensus building was to change the language from the traditional notion of a ‘right of intervention’ to a ‘responsibility to protect’. In the words of one of the Commission’s co-chairs, former Australian foreign minister Gareth Evans: ‘We sought to turn the whole weary – and increasingly ugly – debate about “the right to intervene” on its head and recharacterize it not as an argument about the “right” of states to do anything but rather about their responsibility.’6 Beyond this linguistic shift, however, the commissioners were making a more fundamental point about the content and nature of sovereignty: it was no longer about undisputed control over territory, but rather a conditional right dependent upon a state’s adherence to minimum standards of behaviour. As the final report states: ‘It is acknowledged that sovereignty implies a dual responsibility: externally – to respect the sovereignty of other states, and internally, to respect the dignity and basic rights of all the people within the state. … Sovereignty as responsibility has become the minimum content of good international citizenship.’7 The commissioners therefore argued that their understanding of responsible sovereignty made coercive external engagement inside another state more legitimate than the old, and in their view discredited practice of humanitarian intervention. As one member of the Commission, Ramesh Thakur, put it: ‘The goal of intervention for human protection purposes is not to wage war on a state in order to destroy it and eliminate its statehood but to protect victims of atrocities inside the state, to embed the protection in reconstituted institutions after the intervention, and then to withdraw all foreign troops.’8 In other words, R2P was designed ultimately to strengthen sovereignty rather than to weaken it – a point emphasized more recently by Ban Ki-moon in his report on implementing the principle.9 Despite the positive role that the ICISS report played in changing the nature of the debate on international responses to mass atrocities, its use of the highly charged term ‘responsibility’ generated considerable normative and political controversy. During the negotiations leading up to the UN Summit in 2005, some developing countries voiced opposition to the phrase ‘Responsibility to Protect’ because of its allegedly neo-colonial connotations and potential threat to the cherished ideas of sovereign equality and non-intervention. The representative of Venezuela captured the essence of this concern. The Responsibility to Protect, he contended, is rooted in the belief that the international community [a euphemism by which the great powers define themselves] has the fundamental right to intervene in any member state, by decision of the Security Council, in a false rescue operation on behalf of the people supposedly afflicted by State repression, and to impose sanctions on the State and Government if they fail to assume their obligation to do so themselves. In the inventory of States threatened by this intervention mechanism are all the States of the South, which are an annoyance for the empire.10 This critique of R2P has lingered, with state officials referring to the dangers of colonialism during the General Assembly debate on the implementation of R2P in the autumn of 2009. As the then President of the GA, Miguel d’Escoto Brockmann of Nicaragua, reminded his colleagues: ‘colonialism and interventionism used responsibility to protect arguments’.11 104

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While these objections are powerful, and have continued relevance in the political debate surrounding R2P, the concern of this chapter is less with the invocation of the term responsibility, and more with the incomplete account of responsibility offered by R2P’s advocates. More specifically, it addresses two ambiguities that relate to the collective responsibility to protect: what generates the international community’s responsibility, and how that responsibility is allocated and distributed.12

The source and bearer of responsibility In its simplest formulation, responsibility refers to ‘actions or forbearances that one is deemed bound to perform or observe’.13 With this definition, I am primarily concerned with moral as opposed to causal responsibility. The latter focuses on an agent’s role in bringing some state of affairs about, while the former involves an appraisal of an agent’s conduct.14 While it may be difficult in many cases to attribute clear causal responsibility for a situation (given the possibility of accident or multiple causes), it is still important to determine who has moral responsibility for addressing that situation. This determination assists in determining who or what should be accountable for a particular action/inaction, as well as clarifying how particular agents can and should fulfil their prospective responsibilities.15 Any complete account of responsibility must clarify the source of these obligations, or, at the very least, the reasons that they have been generated. The ICISS report did not tackle this task directly, leaving a gap between its guiding assumption – that sovereignty implies responsibility – and its assertion that there is an international responsibility to protect if a sovereign state fails to fulfil the conditions of sovereignty. Given the political climate at the time of their deliberations (particularly the fallout from the Kosovo intervention), the commissioners were more focused on outlining the conditions under which the principle of non-intervention may be overridden in the name of protecting human rights, and less concerned with establishing why there is a remedial international responsibility to protect. But as Kok-Chor Tan observes, proving something’s permissibility is not the same as establishing its obligatory nature: ‘The report seems to take it for granted that there is a default responsibility to protect, and the only obstacle to the performance of this responsibility is the principle of non-intervention.’16 Nonetheless, by piecing together separate passages of the ICISS report, along with subsequent statements by R2P’s authors and supporters, a reasonably clear account of the source of collective responsibility can be articulated. It should be noted here that the strategy of deriving the responsibility to protect from existing obligations in international law – namely, the obligation to prevent and punish genocide – was not pursued by the commissioners.17 Though this would have narrowed the scope of the responsibility to those crimes indicated in the Genocide Convention, some lawyers have tried to establish a broader legal obligation on the part of thirdparty states to prevent war crimes, crimes against humanity, and ethnic cleansing.18 Members of ICISS, however, explicitly stayed clear from the notions of legal obligation when discussing the residual role for the international community, suggesting that the responsibility to protect was for them predominantly a moral imperative. The source of that moral responsibility can be found in the commissioners’ appeals to ‘common humanity’.19 Though it is individual rights that are denied through persecution and violence, the scale of the atrocities inflicted upon those individuals is also seen to affect us collectively, through the international harm principle. To commit genocide or engage in ethnic cleansing is to fail to treat people as humans, thereby threatening all of humanity’s values and interests. This is what generates the moral responsibility for members of the international community to act and find a remedy. The degree of severity of human rights violations is also 105

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what legitimizes action by outside actors, which would otherwise be seen as an infringement of non-intervention and the principle of third-party neutrality. As Tan puts it: ‘If the right of the offending state to non-intervention may be overruled in the name of human rights, so too … may the right of other states to stay disengaged.’20 While common humanity might have sufficient force to generate remedial responsibilities for the international community, it is still unclear precisely who bears that responsibility. In the ICISS report, the appeal to the international community was a very general one, leaving us – in Tan’s words – with an ‘imperfect duty’ to protect.21 This ambiguity has several potential effects. First, if responsibility is diffuse, it can be easier for states and international organizations to shirk their obligations. In short, we are faced with a collective action problem: the more potential rescuers there are, the less the chance of actual rescue.22 Ironically, then, we are left with the opposite outcome of what so many critics of R2P have been concerned about: inaction on the part of outside states (rather than rampant interventionism). Second, an imperfect duty does not offer suffering citizens inside a state a real claim against the international community. To put it another way, there is a duty of protection asserted, but no corresponding liability for a failure to protect.23 Discretion and selectivity continue unabated. The problem is not only one of unfulfilled expectations, but also (as I suggest later) the absence of mechanisms for holding the international community accountable retrospectively should it not exert its remedial role. Third, as James Pattison suggests, an unassigned responsibility to protect misses out on a potentially beneficial deterrent effect. The need for external intervention might decrease if those potentially inclined to commit mass atrocities have a clear sense that a particular agent would respond. Linked to this, if we know who should act, we can design a strategy to ensure that they are more willing and able to do so – thereby strengthening the deterrent effect.24 Unfortunately, the ICISS report did not fully consider how this allocation of responsibility might occur, beyond concluding that the United Nations Security Council is the most appropriate body to authorize any international response to a situation in which a state is failing in its protection responsibilities. Nor did it stipulate and assess the fundamental assumption that would have to underpin any potential framework for distributing these responsibilities within the international community: that all individuals are potentially vulnerable to the breakdown of the states in which they live, and therefore have a strong interest in the existence of principles and mechanisms that would protect them by assigning clear responsibilities to those that have the capacity to come to their assistance.25 Part of the problem, of course, is that R2P’s invocation of collective responsibility is not based on the idea that a state or group of states has a duty to intervene on behalf of a group of people whose unjust suffering it has helped to cause. Instead, as suggested above, R2P is about responsibility transferring (temporarily) from the state to the international level, based on the severity of the atrocity – i.e. the attack on common humanity – and urgency of needs. This latter source of imputation is arguably less compelling than a straight case of causal responsibility. It also raises questions about whether and how collective responsibility can be distributed to individual members of a collective.26 One solution to this ambiguity, advocated by scholars such as French and Erskine, is to deny that the international community can be held responsible at all. Only a corporate agent, whose identity is ‘more than the sum of its parts’ and which has clear deliberative and executive capacity, can be considered a moral agent capable of carrying the weight of collective responsibility.27 This might lead us to conclude that only institutions such as the United Nations or NATO are capable of fulfilling the remedial responsibility envisaged by ICISS – a point I return to later. For the moment, it is sufficient to note that while the original proponents of R2P did not elaborate an approach to allocating the international responsibility to protect, they were also 106

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not content to confine that responsibility to particular institutional agents. Instead, they supported the more demanding – but also more ambiguous – approach of locating the collective responsibility in the so-called international community. Alternatively, one could approach the question of allocating the international responsibility to protect through the lens of international law. Since the drafting of the Genocide Convention in 1948, it has been acknowledged that all contracting parties have an obligation to prevent and punish genocidal acts occurring within their territory. More recently, with the case of Srebrenica, this obligation has been alleged to extend beyond the territorial state to other neighbouring states (in this instance, Serbia’s failure to prevent genocide in Bosnia).28 As Louise Arbour shows in her analysis of the case, the responsibility invoked by the International Court of Justice is essentially one of due diligence: Serbia had not taken all the measures that were reasonably available to it to prevent genocide.29 In its judgement, the Court insists that if a ‘State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.’30 While the above interpretation of the jurisprudence on the Genocide Convention suggests a trend toward the acceptance of positive state obligations to protect populations from mass atrocities within another state’s jurisdiction, the law remains unclear as to which states will have that obligation to act in precise circumstances. Do these obligations apply equally to all signatories to the Convention, or do special circumstances (for example, the historic links between the countries concerned, geographic proximity, or material ability of particular states) make this obligation a variable – or even optional – one?31 The ICJ judgement in the case of Bosnia v. Serbia offers interesting suggestions on how these extraterritorial responsibilities might be allocated, referring to states that are, for example, geographically close to the events in question or which have special political ties with the country where genocidal acts are about to occur.32 But we have yet to see a full interpretation of this jurisprudence beyond the confines of this particular case, or an analysis of its implications. Theorists such as Miller and Pattison have also considered various principles that might assist in the process of allocating collective responsibility, including the geographical proximity of an agent to those in need of care or protection, the special capacities of a particular agent (such as expertise or strength), and the existence of historic or special links between an agent and those who are threatened.33 But if we take the hypothetical case of a humanitarian crisis occurring in Kenya, we can quickly see that these principles point to different solutions. Geographical proximity might suggest that the closest neighbours – perhaps Tanzania or Uganda – have the remedial responsibility to act in the first instance, since they are likely to respond quickly and have ‘local knowledge’ as to what kinds of measures might be most effective. (This is in fact what Tanzania did when faced with massive human rights violations in neighbouring Uganda in the late 1970s.) Alternatively, one might look to more powerful states – such as regional hegemons Nigeria and South Africa, or Western powers such as the US, France, or UK – who are capable of projecting significant military strength in a relatively short period of time. (Examples of this practice would include US intervention in Somalia, British intervention in Sierra Leone, or French intervention in Cote d’Ivoire.) Or, finally, we might consider historic linkages among states in a particular community as the key driver in identifying the agent of remedial responsibility. African states have appealed to this rationale in arguing that interventions on the continent should be carried out by the African Union, rather than Western states, because ‘African solutions to African problems’ have a better chance of success. France also referred to its historic relationship with Rwanda during the preparations for its (late) intervention during the genocide in 1994. 107

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Each of these principles has pros and cons, making it difficult to establish a priori a general theory as to which should be applied in each case. Examining the third criterion, for example, one could argue that the intervening power is likely to have a particular agenda of its own (including partiality toward particular factions within the target state’s society) that would complicate its exercise of remedial responsibility. This was precisely the charge made against France in relation to Operation Turquoise in Rwanda. Similarly, even if one follows Pattison in placing the primary emphasis on effectiveness – meaning that the bearer of remedial responsibility should be the agent that can mount the most effective response – it is not clear in all cases whether local knowledge or Western capacity will translate into greater effectiveness. In addition, a focus on current capacity neglects the question of how variations in capacity have arisen.34 To put it most starkly: is it morally acceptable for those who currently have the capacity to act to continue to bear the remedial responsibility, simply because others who might develop that capacity (through decisions to invest in their militaries or to increase foreign assistance budgets) are not doing so? A reliance on effectiveness, without some discussion of the distribution of costs, seems unsustainable as a strategy for allocating remedial responsibility. If R2P is to become a true international responsibility, it demands concrete steps to develop greater capacity for intervention and a commitment to contribute to the costs of military action.35 Ultimately, by failing to engage systematically with the question of the bearer of the international responsibility to protect, the ICISS report left suffering civilians with an inflated sense of hope. The Commission held out the possibility of a world where duty, rather than discretion, would mark the approach of the international community to crises that ‘shocked the conscience of mankind’. In the end, however, its core achievement was demonstrating how acts of protection, which might infringe on state sovereignty, could be permissible in twenty-first-century international politics.

A UN responsibility to protect Beyond these more conceptual dilemmas, ICISS’ notion of R2P generated significant resistance in some corners of the international community. As suggested earlier, for many developing countries the words ‘responsibility’ and ‘protection’ proved to be just as loaded with baggage as the phrase ‘humanitarian intervention’. This sentiment was given added potency in 2003, when some of the proponents of the war in Iraq twisted the language of R2P to provide a post facto justification for the US-led campaign to topple Saddam Hussein. But it is important to add that non-Western states did not constitute the only source of disquiet about R2P. Some powerful states (including the US) were also reluctant to embrace a framework guided by the principle of responsibility for fear that it would create demanding obligations and, in the case of Security Council permanent members, threaten to curtail the use of their veto. Thus, when former Secretary-General Annan took on the task of leading the implementation of the Commission’s report, he was facing an uphill battle. In the end, Annan’s ambitious plans were tempered by the vagaries of international politics at the sixtieth anniversary summit. Many of the reform provisions laid out in his blueprint, In Larger Freedom – including reform of Security Council membership and new criteria on the use of force – proved too divisive to gain acceptance by key member states.36 Given this backdrop, it is not surprising that the former Secretary-General considered the agreement on R2P as one of the crowning achievements of the summit, and described it as a ‘historic breakthrough’.37 From the standpoint of clarifying the nature and scope of the international responsibility to protect, Article 139 can be viewed both negatively and positively. By tying R2P explicitly to 108

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the UN (and Chapter VII), the statement does not provide any new legal responsibilities for individual states, or groupings of states, to act in response to the commission of mass atrocities. The existing mechanisms of collective security (i.e., Security Council deliberation) will be used to designate a situation as a threat to international peace and security and recommend action.38 Furthermore, the phrase ‘[w]e are prepared to take collective action, in a timely and decisive manner’ is a weak articulation of the international community’s role. A previous version of the paragraph, which had included the phrase ‘we recognize our shared responsibility to take collective action’ was removed during the deliberations after former US Ambassador John Bolton objected to any hint of an international obligation to act.39 Finally, there is no indication of what would transpire if there is failure by the P5 to come to agreement either on designating a crisis as one that necessitates international involvement, or on authorizing military action to respond to such a crisis. On the positive side of the ledger, Articles 138 and 139 of the Outcome document do address the issues of the source and bearer of the international responsibility to protect (left ambiguous by ICISS), and can therefore be interpreted as a welcome move. The responsibility has been generated by the express consent of member states of the UN. No need, then, to rely on the more ephemeral idea of ‘common humanity’. And the responsibility is to be borne by the United Nations – or more specifically, the Security Council. As such, Article 139 should appeal to those who believe a corporate agent must be identified before collective responsibilities can be activated. It could also have the beneficial effect of discouraging intervention for less-than-noble purposes, as states working outside of the Security Council framework might find it harder to claim they were engaged in acts of protection. Nonetheless, it is not clear that with Article 139, and subsequent attempts to implement its provisions, the collective responsibility to protect is any more robust than before. In order to garner consensus, Article 139 located R2P in already-existing mechanisms of collective action directed by the Security Council. But the Council’s role in authorizing actions designed to fulfil international responsibilities (particularly those involving the use of military force) cannot and should not be confused with the role of actually fulfilling such responsibilities. In order to do the latter, the Council would need one of two things: its own military force capable of responding to humanitarian crises; or, an accepted procedure for distributing responsibilities to particular states or organizations within the international community (using principles such as proximity and capability), as well as a formula for cost sharing. The former solution, though the subject of much discussion among scholars, has not progressed beyond the theoretical level; the latter, while potentially desirable, does not yet feature in the Security Council’s working procedures. Indeed, while the Council’s deliberative capacities might meet Erskine’s test for moral agency, its capacity for swift and purposive action has often been found wanting, as cases such as Rwanda, Srebrenica, and Darfur clearly illustrate.40 Beyond these questions of capacity, there are the broader and by now familiar criticisms of the Security Council’s standing in international society. Simply put, the body that has been identified by the outcome document as ‘first mover’ in the implementation of the international responsibility to protect suffers from a deficit of legitimacy resources. Its deliberations lack transparency, and its structure both under-represents key constituencies in international society and formalizes a privileged position for the P5. While these deficiencies must be weighed against the Council’s effectiveness in managing international peace and security, its makeup and practices are seen by many as falling short of the levels of legitimacy needed to make crucial decisions about war and peace on behalf of the international community.41 As a result, some scholars claim that the Security Council should not be seen as having exclusive legitimacy with 109

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respect to interventions designed to address mass atrocities, and that other organizations and mechanisms deserve our consideration.42 It is also noteworthy that the original ICISS report expressed some misgivings about relying on a highly politicized body like the Council to act as the ‘proper authority’ for military action related to R2P. At that time, the commissioners’ solution was to establish three procedures that would still privilege Chapter VII-authorized intervention but not forbid action if the Council was paralysed by division: states must at least request Council authorization before acting; a resolution supporting military intervention must have at least majority support in the Council; and if the veto is used in these instances, recourse can be made to the General Assembly (under the ‘Uniting for Peace’ resolution) or to regional bodies. In addition, to try to counter potential politicization, the ICISS report recommended that the P5 agree not to veto interventions in cases in which their vital interests are not engaged. In the end, the report warns that if the Security Council ‘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’.43 The current UN Secretary-General has addressed these concerns by avoiding talk of alternatives and trying to improve upon the Council’s procedures. For example, he asks UN members to ‘consider the principles, rules and doctrine that should guide the application of coercive force’, since ‘the credibility, authority and hence effectiveness of the United Nations in advancing the principles relating to the responsibility to protect depend, in large part, on the consistency with which they are applied’.44 But as is evident from the General Assembly debate on Ban Ki-moon’s report, many states still doubt the Council’s capacity for consistency.45 Instead, ‘the expectation is that a body in which powerful states hold veto rights will always produce politically and strategically motivated action and inaction’.46 Not surprisingly, some states have linked their comments on the implementation of R2P to broader calls for reform of the Security Council. Perhaps the biggest drawback of allocating collective responsibility to the Security Council is the lack of clear mechanisms of accountability. Nothing in the UN Charter provides a means for holding the Council to account; in fact, the drafting history of the Charter reveals that accountability was not a matter of discussion or debate. ‘The concept of the “Four Policemen” that dominated US/UK and Soviet thinking was inimical to accountability, based as it was on a wholly different axiom: that the victorious Great Powers carried with them an inherent endowment of authority for the maintenance of the peace.’47 Attempts to create new accountability mechanisms, for example, through judicial review by the International Court of Justice,48 remain hypothetical and often raise more questions than they answer.49 These limitations are exacerbated with the particular case of R2P, since the criticism of the Council is less about what it has done, and more about what it has failed to do. Accountability for so-called acts of omission is a notoriously thorny problem for legal theorists and practitioners. This explains why legal responsibility for inaction or omissions is part of some legal systems, but not all.50 The idea, then, that an international organization such as the UN could be held legally accountable for a failure to respond to genocide is particularly demanding and unlikely to gain much traction in international law.51 The most that one could hope for is political accountability for the Security Council, based on the assessment that it has failed to exercise its special responsibility to respond to threats to international peace and security (where threats are liberally defined to include extreme cases of human rights violations). But even here, accountability is unlikely to be realized unless it is 110

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distributed down to individual states. In other words, there are limits to treating the Council, rather than its members, as the relevant moral agent. When critics claim that the ‘UN has failed’, they really mean that particular member states have failed – both in terms of carrying out explicitly defined responsibilities or of summoning the political will to act. This was particularly apparent in the case of non-intervention in Rwanda, and the breakdown of the sanctions regime against Saddam Hussein’s Iraq, when the UN became a convenient scapegoat. If we resist distributing collective responsibility to the individual states that make up the Council, we forgo the possibility of blaming those who might have played a pivotal role in the organization’s action/inaction and of imposing corresponding costs upon them.52 To suggest that particular states should bear the responsibility to protect is to call for a higher standard of behaviour on the part of Council members. As Anne Peters argues: [B]ecause the Security Council is not a plenary organ, but an organ with restricted membership, those members do not only stand in a special legal relationship with the organization, the UN, but also in a special legal relationship with the remaining members of the organization who are not represented in the Security Council. Members of the Security Council act as delegates of all other UN members, and as trustees of the international community.53 There are a variety of positive ways in which this interpretation of Council members’ special responsibilities could be operationalized; at a minimum, however, this approach suggests that P5 members should not have full discretion in their use of the veto. Ban Ki-moon’s report gestures in this direction, in its call to the P5 ‘to refrain from employing or threatening to employ the veto in situations of manifest failure to meet obligations relating to the responsibility to protect … and to reach a mutual understanding to that effect’.54 At the very least, the principle of R2P, and the way in which it has been allocated to the Council through Article 139 of the outcome document, suggests that individual members of the Council should give reasons for their veto behaviour and/or justify inaction in situations where mass atrocities are occurring or imminent.55 The double veto by Russia and China in February 2012, with respect to a draft resolution designed to try to address violence against civilians in Syria, will likely fuel more demands for permanent Council members to be accountable for how they exercise their vetoes.

Conclusion The aim of this chapter was to critically assess a key aspect of the international responsibility to protect, first enunciated by the International Commission on Intervention and State Sovereignty and more recently enshrined in the 2005 UN Summit Outcome document. In so doing, it has also demonstrated some of the dilemmas associated with efforts to establish collective responsibility in international society. While the ICISS report invoked the language of responsibility, it effectively left the protection of civilians in moral limbo by remaining ambiguous about the source and bearer of the international community’s remedial responsibility to protect. Heads of state and government went some way toward addressing these ambiguities in Articles 138 and 139 of the Outcome document. But by locating the remedial international responsibility in the hands of the Security Council, without either addressing that body’s limitations or establishing norms as to how the responsibility would be distributed down to particular states and organizations, they have ensured that humanitarian crises will continue to go unanswered. These results may seem inevitable to those who emphasize the limitations of international organizations and the lack of consensus within the international community on questions of sovereignty and 111

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intervention. But they also beg the question as to whether it is wise, from the standpoint of those affected by mass atrocity crimes, to use the morally charged language of responsibility.

Notes 1 ‘2005 World Summit Outcome’, UN doc. A/Res/60/1, 16 September 2005, Article 139. 2 Luke Glanville, ‘The Antecedents of “Sovereignty as Responsibility”’, European Journal of International Relations, Vol. 17, No. 2 (2011), pp. 233–55. 3 Sheri P. Rosenberg, ‘Responsibility to Protect: A Framework for Prevention’, Global Responsibility to Protect, 1 (4): 422–77 (2009); and Jutta Brunnee and Stephen J. Toope, ‘The Responsibility to Protect and the Use of Force: Building Legality?’, Global Responsibility to Protect, 2 (3): 191–212 (2010). 4 The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Corporation, 2001). 5 Kofi Annan, ‘We the Peoples’, Millennium Report (New York: United Nations, 2000), p. 48. 6 Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All (Washington, DC: The Brookings Institution, 2008), p. 39. 7 Responsibility to Protect, p. 8. 8 Ramesh Thakur, ‘Freedom from Fear’, in Paul Heinbecker and Patricia Goff, eds., Irrelevant or Indispensable? The United Nations in the 21st Century (Waterloo: Wilfred Laurier Press, 2005), pp. 115–30, p. 123. 9 Ban Ki-moon, Implementing the Responsibility to Protect, UN doc. A/63/677, 12 January 2009, para. 10. 10 See UN doc. S/PV.5225, 12 July 2005. 11 Office of the President of the General Assembly, Concept note on responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, 17 July 2009, http://www.un.org/ga/ president/63/interactive/protect/conceptnote.pdf (accessed 17 January 2012). 12 The following section draws upon the argument set out in Jennifer M. Welsh and Maria Banda, ‘International Law and the Responsibility to Protect: Clarifying or Expanding States’ Responsibilities?’, Global Responsibility to Protect, 2 (3): 213–31 (2010). 13 See Toni Erskine, ‘Introduction: Making Sense of “Responsibility” in International Relations – Key Questions and Concepts’, in Toni Erskine, ed., Can Institutions Have Responsibilities? Collective Moral Agency and International Relations (Basingstoke: Palgrave, 2003), p. 11 (fn. 1). 14 David Miller, ‘Distributing Responsibilities’, The Journal of Political Philosophy, 9 (4): 453–71 (2001). 15 Peter Cane argues that any good framework of responsibility should be concerned with both of these historic and prospective dimensions. See Responsibility in Law and Morality (Oxford: Hart Publishing, 2002). 16 Kok-Chor Tan, ‘The Duty to Protect’, in Terry Nardin and Melissa Williams, eds., Humanitarian Intervention. NOMOS ILVII (New York: New York University Press, 2006), pp. 84–116, p. 88. 17 See Article 1, Convention on the Prevention and Punishment of Genocide. For further discussion of the legal argument in favour of a collective responsibility, see Luke Glanville, ‘The International Community’s Responsibility to Protect’, Global Responsibility to Protect, 2 (30): 287–306 (2010). 18 Louise Arbour, ‘The Responsibility to Protect as a Duty of Care in International Law and Practice’, Review of International Studies, 34 (3): 445–58 (2008). 19 The Responsibility to Protect, p. 2. See also Evans, The Responsibility to Protect. 20 Tan, ‘The Duty to Protect’, p. 90. 21 Ibid., p. 95. As James Pattison notes, Tan’s use of the terms imperfect and perfect duties differs from the standard interpretation of these terms in moral philosophy (the lack of specificity around claimants rather than agents). Nonetheless, the term ‘imperfect duty’ helps to characterize the dilemmas that arise from an unallocated duty. See James Pattison, Humanitarian Intervention & The Responsibility To Protect: Who Should Intervene? (Oxford: Oxford University Press, 2010), p. 10. 22 Ibid., p. 9. 23 Drawing on Hohlfeld, David Rodin describes R2P as no more than a ‘liberty right’. See ‘The Responsibility to Protect and the Logic of Rights’, Programme for Strategic and International Security Studies, Geneva, May 2006. 24 Pattison, Humanitarian Intervention, pp. 10–11. 25 I have adapted this assumption from Miller. See ‘Distributing Responsibilities’, p. 469. 26 See Erin Kelly, ‘The Burdens of Collective Liability’, in Deen K. Chatterjee and Don E. Scheid, eds., Ethics and Foreign Intervention (Cambridge: Cambridge University Press, 2003), pp. 118–39.

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27 See Peter French, Collective and Corporate Responsibility (New York: Columbia University Press, 1984); and Toni Erskine, ‘Assigning Responsibilities to Institutional Moral Agents: The Case of States and “Quasi-States”’, in Toni Erskine, ed., Can Institutions Have Responsibilities? Collective Moral Agency and International Relations (Basingstoke: Palgrave, 2003), pp. 22–25. 28 International Court of Justice, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). General List, no. 91, 26 February 2007, http://www.icj-cij.org/docket/files/91.13685.pdf (accessed 17 January 2012) (henceforth referred to as ‘ICJ Judgment’). This was the first time that state responsibility (as opposed to individual responsibility) had been the subject of ICJ judgment with respect to the Genocide Convention. 29 Arbour, ‘The Responsibility to Protect’, pp. 451–52. 30 ICJ Judgment, para. 431. 31 There is also ambiguity concerning the obligations associated with the other crimes mentioned in the 2005 outcome document, namely war crimes, crimes against humanity, and ethnic cleansing. Unlike genocide, there is no international treaty that contains an explicit obligation on states to prevent these crimes. However, the four Geneva Conventions dealing with the laws of war (1949) contain a common provision, Article 1, whereby states accept an obligation not only to respect but also ‘to ensure respect’ for the Conventions. While this Common Article 1 is regarded as a bedrock provision for the Geneva Conventions, there has been little analysis of the scope of these obligations to ensure respect. 32 ICJ Judgment, para. 430. 33 Miller, ‘Distributing Responsibilities’; Pattison, Humanitarian Intervention. 34 Miller calls this the grasshopper and ant objection: ‘assuming that the grasshoppers could have spent the summer gathering good for the winter rather than singing, we may wonder whether the ants, who now have the capacity to help the famished grasshoppers by virtue of their earlier diligence, have a remedial responsibility to do so’. See ‘Distributing Responsibilities’, p. 461. 35 To remedy this problem, Tan argues that all members of international society have a moral obligation to create the conditions required to fulfil the responsibility to protect – which in his view means the establishment of a permanent international humanitarian defence force. Tan, ‘The Duty to Protect’, pp. 104–5. He also claims that outright opposition to the creation of such a force would make a member of international society ‘morally culpable’ when humanitarian crises go unaddressed. Ibid., p. 106. 36 ‘In Larger Freedom: Towards Development, Security and Human Rights for All’, Report of the Secretary General, UN doc. A/59/2005, 21 March 2005. 37 See UN doc. SG/SM/10161, 12 October 2005. 38 Brunnee and Toope argue that the document is unclear as to whether a situation involving the four crimes must first be found to constitute a threat to international peace and security before the provisions of Article 139 come into play, or whether the Security Council can simply respond whenever national authorities have ‘manifestly failed’. Brunnee and Toope, ‘The Responsibility to Protect’, p. 208. However, my interpretation of the Summit negotiations and Security Council practice is that member states believe that a determination of a threat to international peace and security must be made. 39 ‘[The]international community’, Bolton wrote, ‘has a responsibility to act when the host state allows such atrocities. But the responsibility of the other countries in the international community is not of the same character as the responsibility of the host. … We do not accept that either the United Nations as a whole, or the Security Council, or individual states, have an obligation to intervene under international law.’ Letter from Ambassador John Bolton, Permanent Representative of the United States of America to the UN, 30 August 2005. For more discussion of the legal quality of the responsibilities outlined in R2P, see Anne Peters, ‘The Responsibility to Protect: Spelling out the Hard Legal Consequences for the UN Security Council and its Members’, in Ulrich Fastenrath et al., eds., Liber Amicorum: Essays in Honour of Bruno Simma (Oxford: Oxford University Press, 2011). 40 For assessments of the UN’s performance in the first two crises, see Report of the Independent Inquiry into the actions of the United Nations during the 1994 genocide in Rwanda, UN doc. S/1999/1257, 16 December 1999; and Report of the Secretary-General pursuant to General Assembly Resolution 53/55, UN doc. A/54/549, 15 November 1999. Both reports specifically mention the problem of delayed action. For an overview of the Council’s actions with respect to Darfur, see Jennifer Welsh, ‘The United Nations Security Council and Humanitarian Intervention’, in Vaughan Lowe et al., eds., The United Nations Security Council and War (Oxford: Oxford University Press, 2008), pp. 535–62.

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41 There is a rich literature on this topic. For summaries of the most influential criticisms of the Council, see, for example, Sean D. Murphy, ‘The Security Council, Legitimacy, and the Concept of Collective Security after the Cold War’, Columbia Journal of Transnational Law, Vol. 32 (1994), pp. 201–88; David D. Caron, ‘The Legitimacy of the Collective Authority of the Security Council’, American Journal of International Law, Vol. 87 (1993), pp. 552–88; and Lowe et al., The United Nations Security Council and War. 42 Pattison, Humanitarian Intervention, pp. 54–55. See also Allen Buchanan and Robert Keohane, ‘Precommitment Regimes for Intervention: Supplementing the Security Council’, Ethics and International Affairs, Vol. 25, No. 1 (2011), pp. 41–63. 43 Responsibility to Protect, p. xiii. 44 Implementing the Responsibility to Protect, para. 62. 45 See the comments of various states during the Thematic Debate on the Report of the SecretaryGeneral on Implementing the Responsibility to Protect, UN doc. A/63/677, 23 July 2009. 46 Brunnee and Toope, ‘The Responsibility to Protect’, p. 211. 47 Lowe et al, op.cit., Introduction, p. 40. 48 Some scholars refer to the 1948 Advisory Opinion of the ICJ on the admission of new states to the UN as evidence that the Security Council is subject to legal limitations. ICJ Reports 1948: 57, at 64. See Anne Peters, ‘The Responsibility to Protect’. 49 Lowe et al., op.cit., p. 41. 50 Liability for omissions has not generally been included in the structure of the modern common law of torts, whereas it has in some civil law systems. For the reasoning behind this, see James Edelman and Simone Desegling, ‘The Future of the Law of Torts’, Paper Presented to the Conference on Torts in Commercial Law, University of New South Wales, 17–18 December 2010. This is reflected in differing approaches to the so-called Good Samaritan laws: in common law systems, a bystander may choose to act in aid of a stranger; in civil law systems, however, there is a duty of rescue. See Jay Silver, ‘The Duty to Rescue: A Reexamination and Proposal’, William & Mary Law Review, 26: 424 (1985); and Damien Schiff, ‘Samaritans: Good, Bad and Ugly: A Comparative Legal Analysis’, Roger Williams University Law Review, 77: 11 (2005). 51 Jose Alvarez, ‘The Schizophrenias of R2P’, Panel Presentation at the 2007 Hague Joint Conference on Contemporary Issues of International Law, The Hague, The Netherlands, 30 June 2007. 52 Those such as French, who adheres to a corporate understanding of collective responsibility, resist the imposition of costs on particular individuals. For a further critique of this approach see Kelly, ‘Burdens of Collective Liability’, and Larry May, Sharing Responsibility (Chicago: University of Chicago Press, 1992). 53 Peters, ‘The Responsibility to Protect’. 54 Implementing the Responsibility to Protect, para. 61. 55 In 2006, a group of five countries (Costa Rica, Jordan, Liechtenstein, Singapore, and Switzerland) brought forth a proposal to oblige the P5 to explain their rationale for the veto. See UN doc. A/60/ L.49, 17 March 2006. Peters goes further, suggesting that a veto by a member of the P5 in situations of mass atrocities should be considered as an abus de droit, which could then trigger state responsibility. See Peters, ‘The Responsibility to Protect’.

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9 MOBILISING THE TROOPS Generating the political will to act Tom Keating

Introduction The absence of political will is one of the most commonly proffered reasons for the failure to implement the responsibility to protect principle (R2P). Whether it is the failure to intervene in Myanmar in the aftermath of Cyclone Nargis, the belated and limited response to the plight of civilians caught in the civil conflict in Darfur, or the continued neglect of the people of Zimbabwe, one always finds the lack of political will among the factors highlighted in accounting for the lack of response by national governments and international institutions. While highlighting political will as one of the more persistent roadblocks impeding the implementation of R2P has been common, addressing the issue of political will is both less common and not an easy task. The persistent references to political will might be seen as a simple excuse to divert attention away from more substantial concerns. Alternatively, to focus on political will may be a means to consider other concerns surrounding R2P, because political will involves a number of factors operating at various levels that influence if and how political leaders and their publics respond to gross violations of human rights in different corners of the world. The complexity and confusion surrounding the term may be reason enough to shy away from such an attempt. There are, for example, a variety of subjective considerations that are necessarily involved in assessing political will. The complexity and subjectivity involved also make it difficult to identify specific effective measures for advancing the political will to implement a principle as complex and contested as R2P. Given the centrality of political will in the commentary surrounding the implementation of the R2P principle, however, warrants a fuller discussion of the issue. As suggested, political will has been frequently cited as a critical ingredient if the R2P is to be institutionalised by national governments and international institutions. It has been raised in a more immediate and direct manner to account for the failure of governments to respond in more overt and significant ways to various atrocities that are committed around the world. Some have referred to the lack of political will as one of the ‘fundamental problems’ with responsibility to protect.1 In light of these ongoing concerns it is helpful to explore political will and to determine if and how it has influenced the development, and more importantly the application, of the responsibility to protect principle. This chapter will proceed along the following path to examine this issue and its relevance for the future course of R2P. First, we will briefly examine the idea of political will, its component parts, and how these parts have been 115

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manifest in discussions and practices surrounding R2P. The second part of the chapter will review the concerns raised by various commentators on the relationship between political will and R2P. Not only will this allow us to reinforce the significance of the concern, but it will also allow us to begin to identify the factors commonly attributed to political will as it relates to R2P. Finally, the chapter takes a look at the evolution of the policy of the Canadian government towards R2P, an evolution that has exhibited a significant shift in the political will in support of R2P, from Canada’s instrumental role in instigating the International Commission on Intervention and State Sovereignty in 1999 that defined the R2P, to a point where the concept received little attention and less support from the government of the day, and now to an uncertain future.

Political will considered One should, of course, keep in mind that in many circumstances where R2P would be involved, we are more properly dealing with a number of somewhat independent, but interrelated political wills ranging from those of oppressive governments ignoring or violating their responsibility to their own citizens, to less malevolent national governments, nongovernmental organisations (NGOs), the media, and various agents in the international community. Central to the idea of responsibility to protect is to be attentive to the political will of governments to protect their citizens from harm and to respond in those instances where such a will is lacking. This aspect of political will is not covered here, though it is worth noting. The political wills we see at work in the governments of al-Bashir, Mugabe, and the Burmese military are formidable challenges to the realisation of R2P in those countries and worthy of attention. It is also worth noting that political will is a highly subjective characteristic, demonstrated, but not fully revealed, by the manner in which governments and other actors respond to gross violations of human rights. It simply needs to be kept in mind that the actions of governments, including those that aid victims of oppression, may be motivated by a variety of concerns and not necessarily linked to R2P, and further that a lack of response may be more a matter of limited capacity or efficacy than a lack of support for the principle. The significance of political will for advancing R2P is not mitigated by the shift of discourse among R2P proponents in favour of emphasising prevention rather than protection. While prevention holds promise for steering potential conflicts into more constructive forms of resolution short of violence, and may require a different set of resources, it brings to the forefront the contest among competing political wills in the country at risk. It also raises a slightly different but no less problematic issue of political will among those countries seeking to exercise their responsibility to prevent. Indeed there is some debate among proponents of prevention, such as Jentleson and Lund, as to the significance of political will in shaping a state’s willingness to undertake acts aimed at preventing conflict.2 In their case the necessary political will is of a different form as the responsibility to prevent may, or most likely will, involve the deployment of considerably fewer resources than those that would be required for a full-scale intervention. While arguably requiring fewer resources, garnering support for acts of prevention will be complicated given the uncertainties surrounding intelligence and the sensitivities surrounding sovereignty. For these reasons, intelligence may be far more important than political will. It is important to recognise that political will is not something independent of time and conditions. As will be discussed below, political will is influenced by a number of factors, and these factors can be influenced significantly by the conditions both on the ground in countries at risk, but also among those countries in the process of determining their response. As has been suggested, one of the critical factors likely to influence political will are the costs involved in 116

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responding to a crisis situation in another country. It was also mentioned that political will has been influenced by events occurring in other places. Bellamy, for example, has noted the extent to which developments in Iraq after 2003 had a significant impact on the response that many governments, and especially the UN, decided to undertake in response to the crisis in Darfur.3 It is also the case that extraneous events and conditions such as domestic political and economic turmoil will have an effect on a government and their public’s support for advancing R2P. Before delving more deeply into the relationship between these factors and the political will to advance R2P, it is worth thinking of political will more systematically. Any conversation about political will is confronted by the ambiguity and illusiveness of the term itself. Despite repeated references to political will in many commentaries on all aspects of foreign and domestic affairs, there are few efforts to treat the concept systematically. Political will is blamed or credited for many policies without giving close attention to what precisely is involved in the concept. Instead one is asked to assume that political will refers to the conviction or the commitment of a policy maker. Indeed political will is often invoked when making reference to the choices of selected individuals. In order to advance a discussion of political will and how it has and will likely affect R2P, it is useful to identify the constitutive elements involved. Evans has devoted some attention to this in his discussion of R2P. “The key elements … are knowledge of the problem; concern to do something about it; confidence that doing something will make a difference; institutional processes capable of translating that knowledge, concern, and confident belief into relevant action; and leadership – without which the ticking of all four other boxes will not matter.”4 Post, Raile, and Raile also offer a constructive approach to thinking about political will: “Our ideal-type definition of political will requires that a sufficient set of political actors with a common understanding of a particular problem on the public agenda genuinely intends to support a commonly perceived, potentially effective policy solution.”5 Their definition thus specifies four conditions that need to be in place for political will to support policy initiatives such as R2P. These are a politically sufficient set of political actors, a shared understanding of a particular problem, a genuine commitment to support, and a commonly perceived and potentially effective policy solution.6 Busby, while not referring specifically to political will, provides an equally useful compendium of factors that will shape political will. His list includes a permissive international context, focusing events, credible information, low costs, cultural match, and supportive policy gatekeepers.7 The most problematic feature in these various accounts is in determining what constitutes a “politically sufficient set of political actors.” In thinking about political will in support of R2P, it would seem that the most important agents are those political leaders of states and institutions capable of responding to crises, but these are not the only agents of interest. In addition, nongovernmental organizations (NGOs), the media, and the public have important roles to play in generating political will. Pattison, for one, argues that “many states are influenced by the opinions of their peers, the criticism of NGOs, and global public opinion, if for no other reasons than wanting to be seen as good international citizens and domestic electoral pressures.”8 Busby’s analysis of governments’ response to the debt relief issue reveals a similar set of influential factors.9 Others have maintained that “public opinion is crucial in generating the requisite national and international political will for humanitarian intervention, and ways should be found to help facilitate better media coverage of crises in which the responsibility to protect might be invoked,” in order to generate this public attention.10 Banda has argued: “When the leadership is wanting on the political level, it needs to be taken up by other actors, in civil society and the media, working in partnership to push the agenda forward.”11 While one could dispute whether political leaders or agents of civil society are most important, it is worth recognising that both play a potential role in advancing the R2P agenda. Moreover, in thinking 117

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about the political will necessary to undertake an R2P operation, in most states around the globe capable of responding, both the state and critical elements of civil society would need to be constructively engaged if such an operation was to have any likelihood of success.

Political will and R2P As suggested, advocates of the responsibility to protect principle along with many of those who seek interventions on behalf of peoples caught in conflict situations often attribute the lack of response to the absence of political will. In doing so, they begin to offer means for redressing this failure in the future. Evans writes that “conflict prevention requires the availability in practice, not just theoretically, of capability to deliver the appropriate responses and the necessary political will to apply those resources.”12 At a later point he reasserts the point: “Without the exercise of political will, by the relevant policymakers at the relevant time, almost none of the things for which this book has argued will actually happen.”13 Others take a similar view, suggesting implicitly that political will is an autonomous characteristic, independent of the discourse and practice of R2P. For example, in making a case for R2P as a duty of care in international law, Arbour takes the view that the R2P norm “presents itself with intellectual clarity, political usefulness and, I hope, eventually legal enforceability. UN institutions are equipped to help States implement the doctrine. Whether they actually do so, depends largely on UN Member States’ political will.”14 The importance of political will reappears in other commentaries. Francis Abiew concludes his analysis by stating: “Ultimately, recognition of the R2P as a principle is important but its practical implementation is quite another issue. The latter will depend on the political will of the international community to follow through in extreme cases that require the use of military force. Marshalling the political will to do so is still the unfinished business of ensuring there are no more ‘Rwandas’ and ‘Srebrenicas.’”15 With the exception of Evans, among the above, however, there is little attention to what factors might influence the level of political will in support of intervention. The issue here, then, becomes one of considering what factors are likely to influence the political will of various agents to commit to the principles included in R2P. For some, as indicated above, it is a matter of political leadership. Mobilizing the political will to respond effectively to mass atrocity crimes ultimately demands … someone, somewhere in the system, able and willing to make things happen. Unless the relevant decision makers, at the national or international level, want action, there won’t be any. All the knowledge, concern, confidence, and process in the world will not count for much if there is inertia, indecisiveness, or hostility at the top.16 There is no question that political will is dependant on leaders willing to make the commitment to take action. Yet leaders are influenced by the conditions and pressures that exist around them. These other factors that have been suggested as having an influence on a state’s ability to create and sustain the political will required to support R2P are worth considering, for they will ultimately shape a leader’s response.

The nature of obligations and the promise of international law Implicit in Arbour’s discussion is the idea that conceptualising R2P as a bundle of duties may have implications for generating political support for putting R2P into practice. The argument is 118

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premised on the view that both the status of the R2P principle and the way in which it is presented will influence how states will respond to calls to initiate it or act in accordance with its precepts. Support for R2P, in this view, is connected to its status as an international norm. Bellamy has argued that during its short life, R2P has been deployed as a policy initiative tied to the development of normative principles ideally institutionalised at the state, regional, and global level.17 A further extension of this argument suggests that international norms that achieve the standing of international law are more likely to receive the support of states and their citizens. Welsh and Banda consider the moral and legal standing of R2P and conclude in arguing that the moral and legal standing given to the R2P principle can “exert significant influence on how states interpret their legal obligations.”18 The argument rests on assumptions about the nature of states’ obligations and the extent to which international norms and law can help to secure compliance by states. Citing Abbott and Snidal, they write that “legal rules may exert a greater ‘compliance pull’ because of the legitimacy associated with the obligations they outline.”19 When viewed from this perspective, one could argue that the necessary political will would be supported and enhanced by the strength of the institutionalised norm and by its codification into international law. The idea that the institutionalisation of norms will increase compliance and thereby generate political support is widely shared, but compliance is different from requiring a state to undertake action. Thus, in thinking about political will, such a development is more likely to influence a state contemplating violating or neglecting its responsibility to its own citizens than to act in such a way as to persuade an outside state to intervene when such violations are occurring. Bellamy maintains that R2P has also been used as a “speech act” in an effort to raise the profile of a situation so as to generate more attention, and in turn, a greater likelihood of response. In this view, R2P is seen in more instrumentalist terms as “a label to generate the (political) will and consensus to mobilize a decisive international response.”20 Here too, the idea is that R2P as a principle is more likely to increase the willingness of national governments to commit resources to address a severe violation of human rights, if one advances the idea that outsiders have an obligation to protect the lives or conditions of those being abused by other governments. To date, however, it would seem, as Pattison has reported, that: “for most agents, humanitarian intervention is only supererogatory: it is morally permissible, but not morally obligatory.”21 Pattison is primarily referring to interventions involving the use of force, but his comment has wider application. The nature and location of many of the conflicts and emergencies that call for an R2P response are not easily connected to the political ideas or interests of those agents most capable of responding. More importantly, acts of oppression in countries such as Zimbabwe, Myanmar, Darfur, and others are not seen as being the direct or immediate responsibility of would-be protectors. There is, as a result, no obligation to respond. The lack of connection is important in considering the issue of political will. Borrowing from the work of Kok-Chor Tan, Pattison argues: “Unless an agent is identified as the primary agent of protection … the duty to protect will remain an imperfect one – it is a duty that cannot be morally demanded of any particular state.”22 The degree of agency that a state may possess towards others in need of protection could be influenced by any number of conditions. These would include, among others, a country’s existing or past relationship with populations at risk and their governments, its capacity to respond effectively, or, as Arbour would favour, its institutional commitments deriving from a specific institutional membership or through international law as a member of the society of states. The important point to make here, however, is the connection between agency and political will. Establishing agency becomes an important aspect for generating the necessary political will. Alternatively, political will can be effectively challenged by confronting the agency of different actors, questioning their legitimacy and capacity to respond. 119

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Legitimacy and capacity Related concerns that have influenced the political will in support of intervention are the legitimacy surrounding such operations and the capacity to be effective. One source of legitimacy, as described above, is international law. A more common consideration is whether such actions have the support of the United Nations (UN) or a legitimate regional organisation such as the African Union. There remains considerable debate around the necessity of UN authorisation for R2P operations to be undertaken. It is evident that for some states UN authorisation is not essential to legitimate an intervention – Kosovo stands as the prime example. Nonetheless, some form of legitimation would appear useful for advancing the political will of national governments to marshal the necessary support for R2P implementation. The argument here is that state officials have a very strong interest in acting in accordance with international law. Though this is likely best expressed in the negative – states do not want to violate the law – it remains unclear whether such an external constraint could have a significant effect on political will. Related to this is the extent to which institutional support also enhances the credibility and capacity of interventions. Evans argues: “A further critical ingredient in the fashioning of political will is the existence of institutional processes capable of translating knowledge, concern, and confident belief in the utility of action into actual action.” He goes on to say that “a preoccupation with process at the expense of substance can lead … to mind-numbing irrelevance, but … a little more systematic institutional process than has been the case so far will be very helpful indeed.”23 For political leaders concerned about the “appropriateness” of their actions this might enhance political will by providing a significant degree of legitimacy while also demonstrating that the intervention has the capacity to succeed. The issue of capacity is often noted in discussions of interventions, though not often in connection with political will. Yet the relationship between capacity and political will is important and needs to be taken into consideration. It is a point taken up in the Canadian study, ‘A Will to Intervene’, which reports: “A shortage of either civilian or military capacity diminishes the political will for action.”24 As Post, Raile, and Raile discussed, the political consensus must be around a response that is considered to be effective. Political leaders and their publics need to be convinced that their actions are going to have an impact and this will be influenced by their own capabilities to intervene with effect or alternatively to contribute to a multilateral operation that shows some likelihood of success. As will be argued below, one factor that has weighed against political support for R2P in Canada has been reservations about the capacity to intervene with effect. This in turn has been shaped by both material conditions and recent experiences.

Interests Having considered the effect that norms and international law might have on political will, it is also important to consider the effect of material interests. Just as governments and their publics are not immune to the socialising effect of norms and institutions, so they will be influenced by the material interests at play in any set of policy options. One of the factors that has influenced many of the interventions that have been either undertaken or discussed since the end of the Cold War is a sense that they have been of no direct and immediate interest to those who intervened. This level of disinterest has also been characteristic of many UN peace support operations both past and present. In the absence of pressing material interests, decisions to intervene appear optional for many governments and their publics. While pressing international norms or institutional commitments can counter the lack of material interests, they do not readily or easily overcome 120

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circumstances that pose significant risks for governments or their publics. As a result, efforts to generate political will in support of acting on behalf of R2P operations that would entail considerable risks often rely more on political and security interests than on questions of ethics and moral principle. Some, such as Brunnee and Toope, seek to combine these, when they insist that “the need for real commitment to the responsibility to protect is both ethical and pragmatic. Allowing states to fail in or deny their protective obligations to their own populations produces not only moral quagmires, but also allows for some states to become breeding grounds for disaffection, frustration, and, potentially, interstate conflict.”25 The ability to identify pressing material interests may increase a government’s willingness to respond and may also help to sustain public support for foreign interventions. While some would contend that interventions motivated even in part by material interests are likely to contaminate the moral value of such actions, others, such as Wheeler, have argued that the presence of interests need not denigrate the normative values at play.26 For our purposes here, it would seem that in the absence of material interests generating the necessary political will to initiate, and more importantly, sustain an effective intervention will be more difficult to obtain.

Context One final consideration worthy of attention is the broader context in which such decisions about implementing R2P get made. It is obvious from this discussion and many others, as well as from historical experience, that political will is very sensitive to developments that lie beyond the reach of policy officials. These can be as immediate and as directly connected to the moral issues at hand, such as the battle in Mogadishu, Somalia in October 1993, which resulted in a fundamental shift in American policy. In a more immediate sense recent developments in both Iraq and Afghanistan have quite clearly tempered the political will for many forms of intervention. Influential events can also be more indirect and seemingly disconnected, such as shifts in the global economy or some obscure domestic event that distracts governments from having the confidence or political opportunity to engage with R2P. These are the unpredictable yet salient events that can just as easily lend support to action as they can diminish it. Their salience, however, is not always apparent in advance or predictable in its occurrence.

The rise and demise of Canadian support for R2P The Canadian case illustrates both the potential and the limitations of political will. More importantly, a consideration of the Canadian case is helpful in order to illustrate how and why the political will to support and advance R2P has seemingly evaporated, and what if anything might be done to resurrect it. Canada was once described as “the world’s leading proponent of the responsibility to protect.”27 Yet in less than a decade this has changed dramatically, and one is hard pressed to find a reference to the principle in the statements and speeches of Canadian officials a mere ten years after it was first promoted and five years after Prime Minister Martin’s intervention helped to preserve a UN commitment to the principle in 2005. It would seem at first glance that this can be accounted for by electoral and partisan politics, and that R2P’s decline is a reflection of a policy shift resulting from the election of a Conservative minority government in 2006. Yet this is both too simple and correspondingly problematic. Its simplicity arises in part from an assumption that a change in government is all that would be required for Canada to lend more robust support to R2P, an assumption that means R2P has been a partisan issue in Canada, and in the first instance, this accounts for its rise and fall. Yet support for the values and practices that underlie R2P actually preceded the Liberal government in Canada, which initiated the 121

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ICISS, and has seemingly crossed partisan lines. It certainly has not been a major policy issue in partisan debates. It would seem that something more is involved. A look back at Canadian foreign policy at the end of the Cold war reveals that this was a time when the Canadian government launched a series of initiatives to expand the opportunities for effective intervention to address violations of human rights and democratic practices. At the time, the Canadian Prime Minister, Brian Mulroney, organised a team of advisers who supported a more interventionist approach to address such issues and worked with the Prime Minister to undertake initiatives at the level of both principle and practice to advance an agenda of intervention in defence of human rights and democracy. This was clearly a case where the political will originated in the top echelons of the state, and political leaders undertook measures in the form of both political appointees and marshalling other actors to gain popular support for a change in foreign policy behaviour. They, in turn, sought confirmation and support from international institutions to advance this agenda.28 A similar initiative occurred with the arrival of Lloyd Axworthy as Canada’s foreign minister in 1995. Following on from the Somalia Affair, which had caused a short-term reassessment of the government’s support for intervention, Axworthy recovered much of the political will that had been generated by Mulroney and focused it into a number of specific policy initiatives. While maintaining support for ongoing operations in the former Yugoslavia, he was also able to engage policy officials in advancing a human security agenda through such international agreements as the Ottawa Treaty and the Rome Treaty. Axworthy was also able to secure political support for operations in Kosovo in 1999. On each of these occasions it would be fair to argue that there was evidence of the political will to advance these policy initiatives. Yet unlike a Prime Minister who could undertake a series of appointments throughout the government and have influence over budget allocations, Foreign Minister Axworthy was severely restricted in his political capacity to advance his human security agenda. The result was a rather thin level of support for the initiatives that had been undertaken, including, in the end, R2P. Thus from the start there was not a sufficient level of sustained political support to see any effort towards the institutionalisation of the principle in Canadian practice. While Liberal Prime Ministers Chretien and Martin provided some rhetorical support, there is less evidence of substantial material contribution or to undertaking any specific operations that might advance the R2P agenda. Instead this was left to civil servants in the Department of Foreign Affairs and International Trade (DFAIT) and representatives from civil society. It could be added in the case of Axworthy that part of his success in advancing initiatives was facilitated by the absence of substantial costs for pursuing these initiatives. This was evident, for example, in the relatively modest costs attached to the Ottawa and Rome treaty commitments. It was also evident in the relatively low cost for the military operation in Kosovo, both in terms of military hardware expended and, of course, in the absence of the loss of human life in that conflict. In the aftermath of the Kosovo conflict, the Canadian government was instrumental in establishing the International Commission on Intervention and State Sovereignty (ICISS), which elaborated the R2P principle. The government also committed some resources to gain support for the principle from other governments, much of this focused at the UN. Since that time the attention and direction of politicians and the public has changed. The shift was subtle but significant, in that the security concerns of the Canadian government turned increasingly towards national interests and away from the sorts of interventions that dominated the agenda during the 1990s. The events of 11 September 2001 had already begun to signal a change in Canadian foreign policy priorities that would eventually replace the security of others with the security of the Canadian state. The waning support for advancing the implementation of R2P could also be seen in the government’s response to the conflicts in Sudan and the Congo, along 122

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with a continuing reduction in contributions to UN peace support operations. As Shaw and Black write: “With regard to Darfur, Canada has not been an insignificant player in the uneven global response to the crisis. Yet the net effect of its involvement has been to help sustain a starkly inadequate effort, especially when measured against the emerging standard of R2P.”29 Another contributing factor to the declining political support for such practices has been the Canadian experience in Afghanistan. While R2P certainly involves more than a military response, one of the critical ingredients in looking at the political will for R2P in Canada has been the efficacy and capacity of the Canadian armed forces in support of humanitarian operations. Afghanistan has been defined and defended in both humanitarian and more traditional national security terms, but the latter have been the more dominant, especially as the Canadian contribution persisted and the casualties increased. Public and political concerns have also been voiced over the efficacy of Canada’s military commitments in Afghanistan, as well as concomitant concerns over the efficacy of such interventions as a whole and the capacity to deploy to multiple operations. Not surprising, in this light, has been waning public support for such operations. Much of what has transpired in Canada over the past decade suggests that the initial commitment to R2P, while quite vocal and effective at both the governmental level and among civil society groups, has not persisted nor been successful in gaining widespread support among the military, political leaders, or the public at large. As a result it could be argued that Canada has lacked a sufficiently large and efficacious set of political actors with the political will to sustain a long-term commitment to R2P. This brief historical survey is illustrative of the issues surrounding political will, specifically that which has been supplied to advance policies and practices in support of R2P. It is apparent in retrospect that the 1990s in Canada provided an opportunity and the political will in support of interventions. This was informed by a broader conception of the national interest than that which has been invoked in the most recent decade and led by national political leaders. The emergence of new leaders with different priorities and of experiences that raise concerns over the efficacy of intervention provide some account for Canada’s declining commitment to the principle, but the more general concern that gives rise from the Canadian experience is the shallowness of the political will that surrounded R2P even from its “leading proponent.” The lack of a fuller or more sustained commitment impedes the ability to institutionalise such principles in a manner that carries effective political weight, as leaders change and new crises arise. Shaw and Black argue: “Governments are both entitled and expected to chart their own course. But some priorities require a level of sustained engagement that transcends the life of any Parliament or the partisan priorities of any Party.”30 The responsibility to protect is such a priority if it is to have any staying power. The rapidly disappearing support for the principle on the part of what had been one of its principal supporters suggests the inherent difficulty that R2P faces in garnering more widespread support in the international community. The end result may leave us with few options but to mobilise political will in response to specific events as they arise. An important if somewhat disheartening lesson as we look to the future.

Notes 1 S. Neil MacFarlane, Carolin J. Thielking, and Thomas G. Weiss, “The Responsibility to Protect: Is Anyone Interested in Humanitarian Intervention?,” Third World Quarterly, 2004, 25, 5: 980. 2 Jennifer DeMaio, “Managing Civil Wars: An Evaluation of Conflict-prevention Strategies in Africa,” World Affairs, Winter 2006, 168, 3: 13. 3 Alex J. Bellamy, “A Responsibility to Protect or a Trojan Horse? The Crisis in Darfur and Humanitarian Intervention after Iraq,” Ethics and International Affairs, 2005, 19, 2: 31–54.

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4 Gareth Evans, Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All, Washington, DC: Brookings Institution Press, 2008 p. 224. 5 Lori Post, Amber Raile, and Eric Raile, “Defining Political Will,” Politics and Policy, 2010, 38, 4, pp. 653–76, http://onlinelibrary.wiley.com/doi/10.1111/j.1747-1346.2010.00253.x/pdf (accessed 10 February 2012). 6 Ibid. 7 Joshua William Busby, “Bono Made Jesse Helms Cry: Jubilee 2000, Debt Relief, and Moral Action in International Politics,” International Studies Quarterly, 2007, 51: 252. 8 James Pattison, “Whose Responsibility to Protect? The Duties of Humanitarian Intervention,” Journal of Military Ethics, 2008, 7, 4277, pp. 262–83. 9 Busby, “Bono Made Jesse Helms Cry.” 10 MacFarlane, Thielking, and Weiss, “The Responsibility to Protect,” p. 988. 11 Maria Banda, The Responsibility to Protect, Moving the Agenda Forward, Ottawa: UN Association of Canada, 2007, p. 17. 12 Evans, Responsibility to Protect, p. 81. 13 Evans, Responsibility to Protect, p. 223. 14 Louise Arbour, “The Responsibility to Protect as a Duty to Care in International Law and Practice,” Review of International Studies, 2008, 34: 457–58. 15 Francis Kofi Abiew, “Humanitarian Intervention and the Responsibility to Protect: Redefining a Role for ‘Kind-Hearted Gunmen’,” Criminal Justice Ethics, August 2010, 9, 2: 106. 16 Evans, Responsibility to Protect, p. 239. 17 Alex J. Bellamy, “The Responsibility to Protect – Five Years On,” Ethics and International Affairs, 2010, 24, 2: 159. 18 Jennifer M. Welsh and Maria Banda, “International Law and the Responsibility to Protect: Clarifying or Expanding States’ Responsibilities?,” Global Responsibility to Protect, 2010, 2: 213–31. 19 Welsh and Banda, “International Law and the Responsibility to Protect,” p. 228. 20 Bellamy, “The Responsibility to Protect,” p. 159. 21 Pattison, “Whose Responsibility to Protect?,” p. 268. 22 Ibid., p. 264. 23 Evans, Responsibility to Protect, p. 235 and p. 238. 24 “Mobilizing the Will to Intervene,” Montreal Institute for Genocide and Human Rights Studies, 2009, p. 37, http://www.carleton.ca/cifp/app/serve.php/1244.pdf (accessed 19 January 2012). 25 Jutta Brunnee and Stephen Toope, “Norms, Institutions and UN Reform: The Responsibility to Protect,” Journal of International Law and International Relations, 2005, 2, 1: 133, 135. 26 Nicholas Wheeler, Saving Strangers, Oxford: Oxford University Press, 2002. 27 Elizabeth Riddell Dixon, “Canada’s Human Security Agenda: Walking the Talk,” International Journal, LX, 4: 1069. 28 See Paul Gecelovsky and Tom Keating, “Liberal Internationalism for Conservatives: The Good Governance Initiative,” in Kim Richard Nossal and Nelson Michaud, eds., Diplomatic Departures: The Conservative Era in Canadian Foreign Policy, 1984–1993, Vancouver: University of British Columbia Press, 2001 pp. 194–207. 29 Tim Shaw and David Black, “Canada out of Africa? Disappointments around Darfur Omens for Canada’s 2010 G-8 Summit?,” Human Security Bulletin, 2007, 5, 3: 19. 30 Shaw and Black, “Canada out of Africa?,” p. 21.

Bibliography Abiew, Francis Kofi. “Humanitarian Intervention and the Responsibility to Protect: Redefining a Role for ‘Kind-Hearted Gunmen’,” Criminal Justice Ethics, 29, No. 2, August 2010: 93–109. Arbour, Louise. “The Responsibility to Protect as a Duty to Care in International Law and Practice,” Review of International Studies, 34, No. 3, 2008: 445–58. Banda, Maria. The Responsibility to Protect, Moving the Agenda Forward, Ottawa: UN Association of Canada, 2007. Bellamy, Alex J. “A Responsibility to Protect or a Trojan Horse? The Crisis in Darfur and Humanitarian Intervention after Iraq,” Ethics and International Affairs, 19, No. 2, 2005: 31–53. ——“The Responsibility to Protect – Five Years On,” Ethics and International Affairs, 24, No. 2, 2010: 143–69.

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Mobilising the troops Brunnee, Jutta and Stephen Toope. “Norms, Institutions and UN Reform: The Responsibility to Protect,” Journal of International Law and International Relations, No. 2, 2006: 121–37. Busby, Joshua William. “Bono Made Jesse Helms Cry: Jubilee 2000, Debt Relief, and Moral Action in International Politics,” International Studies Quarterly, 51, 2007: 247–75. DeMaio, Jennifer. “Managing Civil Wars: An Evaluation of Conflict-prevention Strategies in Africa,” World Affairs, 168, No. 3, Winter 2006: 131–44. Evans, Gareth. Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All, Washington, DC: Brookings Institution Press, 2008. Gecelovsky, Paul and Tom Keating. “Liberal Internationalism for Conservatives: The Good Governance Initiative,” in Kim Richard Nossal and Nelson Michaud, eds., Diplomatic Departures: The Conservative Era in Canadian Foreign Policy, 1984–1993, Vancouver: University of British Columbia Press, 2001: 194–207. MacFarlane, S. Neil, Carolin J. Thielking, and Thomas G. Weiss, “The Responsibility to Protect: Is Anyone Interested in Humanitarian Intervention?,” Third World Quarterly, 25, No. 5, 2004: 977–92. Montreal Institute for Genocide and Human Rights Studies. “Mobilizing the Will to Intervene,” Montreal: Montreal Institute for Genocide and Human Rights Studies, 2009, p. 37, http://www.carleton.ca/cifp/ app/serve.php/1244.pdf (accessed 19 January 2012). Pattison, James. “Whose Responsibility to Protect? The Duties of Humanitarian Intervention,” Journal of Military Ethics, 7, No. 4, 2008: 262–83. Post, Lori Amber Raile and Eric Raile. “Defining Political Will,” Politics and Policy, 38, No. 4, 2010: 653–76, http://onlinelibrary.wiley.com/doi/10.1111/j.1747-1346.2010.00253.x/pdf (accessed 31 January 2012). Riddell Dixon, Elizabeth. “Canada’s Human Security Agenda: Walking the Talk,” International Journal, 60, No. 4, Autumn 2005: 1067–92. Shaw, Tim and David Black. “Canada out of Africa? Disappointments around Darfur Omens for Canada’s 2010 G-8 Summit?,” Human Security Bulletin, 5, No. 3, August 2007, http://www.humansecurity.info/ #/vol53-shaw-black/4527460575 (accessed 19 January 2012). Welsh, Jennifer M. and Maria Banda. “International Law and the Responsibility to Protect: Clarifying or Expanding States’ Responsibilities?,” Global Responsibility to Protect, 3, No. 2, June 2010: 213–31. Wheeler, Nicholas. Saving Strangers, Oxford: Oxford University Press, 2002.

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10 LEADERSHIP AND THE RESPONSIBILITY TO PROTECT Abiodun Williams and Jonas Claes

Introduction The Responsibility to Protect (R2P) is a signal achievement of the twenty-first century. Though its roots can be traced to earlier times, the principle did not mature or acquire normative significance until the arrival of the new millennium. Leadership was instrumental in conceptualizing, bridging divergent interests, and mobilizing political support before the heads of state and government unanimously adopted R2P at the 2005 UN World Summit. Few would have predicted that in five short years R2P would be at the heart of the international debate about protecting human beings against conscience-shocking violations of human rights, involving large-scale loss of life. This chapter begins with a reflection on the nature of leadership, which has been essential to the development of R2P. The literature on leadership, both theoretical and empirical, is vast. There is a variety of perspectives on leadership, and definitions of leadership abound. Similarly, there is no consensus among scholars and practitioners on what distinguishes leaders from non-leaders, and effective leadership from ineffective leadership. Nor is there agreement on the complex question of cause and effect that arises in leadership behavior. However, a detailed review and critique of these contending approaches would go beyond the scope of this chapter. We move on to discuss the evolution of R2P and the leadership role of imaginative individuals, member states, civil society, regional and sub-regional organizations in shaping its development. The story of R2P is inextricably linked with the United Nations. In the United Nations, leadership can come from the Secretary-General and other senior UN officials, member states, either individually or in groups or blocs, political leaders, or non-governmental organizations. Accordingly, this chapter focuses on the contribution of former Secretary-General Kofi Annan who called R2P one of his “most precious” achievements.1 It explores the active role played by Canada, a middle power, in R2P’s development. This is followed by a discussion of the role of civil society in advancing R2P, and the leading role regional and sub-regional organizations played in institutionalizing the concept. In the final section we consider the role of leadership in meeting the three main challenges facing the implementation of R2P: conceptual, institutional, and political. 126

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What is leadership? In a study of leadership in the United Nations system, Brian Urquhart and Erskine Childers put the importance and difficulty of leadership succinctly: “Leadership is an essential ingredient in the successful conduct of most great enterprises. It is a quality easy to identify but difficult to define, easy to talk about but extraordinarily difficult to find, and even more difficult to provide for.”2 Throughout history, and in every sphere of human endeavor, leadership was, and will be, an indispensable factor in successfully meeting key challenges. Leadership was a critical element in many major achievements at the United Nations, from the creation of the organization itself to the establishment of the International Criminal Court, from the adoption of the Universal Declaration of Human Rights to the establishment of the Peacebuilding Commission. A discussion of leadership is complicated by the confusion inherent in the concept. The three main sources of confusion are: the equation of leadership with authority, the expectation that leaders have all the answers, and the idea that leaders are born and not made.3 While individuals in positions of high authority are, undoubtedly, in a privileged position to exercise leadership, and often do, this is not always the case. Conversely, there are people in various areas of human activity who can exercise leadership without authority. Leadership requires vision and insight to see what ought to be done. A leader does not necessarily have to provide the complete solution to every problem. The leader who invites cooperation, asks for help, and solicits advice stands a better chance of finding appropriate and durable answers to problems. While some people possess certain qualities that are essential for leadership such as moral courage, integrity, analytical capability, pragmatism, and the ability to communicate effectively, most individuals could develop a greater capacity to lead by understanding the nature and requirements of leadership. It is a truism that the office of the UN Secretary-General lacks real political power but offers great opportunities for exercising influence. In his classic essay on executive heads and leadership in international organization, Robert Cox noted that the sources of potential influence are legal-institutional, idiosyncratic (personality or leadership style), ethical-normative, and systemic.4 For Joseph Masciulli and W. Andy Knight, there are six requirements for effective global leadership: contextual intelligence and judgment; ethical vision; emotional intelligence; political bargaining skills; communication skills; and organizational and management skills. They argue that Kofi Annan was a “contextually intelligent political leader” who was bold, creative, and “innovatively adaptive.”5 Leadership by the UN Secretary-General is essentially a political task of the most complex kind. According to Ramesh Thakur: “The single most important political role of the SG is to provide leadership: the elusive ability to make others connect emotionally and intellectually to a larger cause that transcends their immediate self-interest. Leadership consists of articulating a bold and noble vision for a community and establishing standards of achievement and conduct, explaining why they matter and inspiring or coaxing others to adopt the agreed goals and benchmarks as their personal goals.”6 Kofi Annan used the bully pulpit to reach beyond states to civil society and, in a dramatic departure from previous Secretaries-General, the business community. He also reached out to academics, Nobel Laureates, entertainers, and other opinion shapers. However, there are three fundamental constraints on the Secretary-General’s capacity to exercise global leadership. The first is that the Secretary-General is not a head of state but the chief administrative officer of an intergovernmental organization, and he takes his instructions from the legislative bodies, especially the General Assembly and the Security Council. The Secretary-General can propose, but it is the member states that dispose. This reality sets limitations on the leadership role of the Secretary-General, both politically and in terms of his 127

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responsibilities as defined by the Charter. The member states, of course, have consistently demonstrated considerable ambivalence on the Secretary-General’s role, never sure whether they want a “Secretary” or a “General,” or both. While the Secretary-General cannot go far beyond the limits set by the legislative bodies, he can provide useful and even indispensable leadership within those boundaries. The second constraint is the global political order that is beyond what the Secretary-General or even the UN can manage or control. There are clear connections between the state of world politics and the role of the Secretary-General. When the international political environment is more permissive the Secretary-General has greater latitude than during periods of deep divisions and confrontation. The third constraint is the international bureaucracy. There is a resistance to change inherent in all bureaucracies. Reform does not come naturally, and implementing reform proposals, especially of great magnitude, is always a struggle. Annan understood this when he put forward his final proposals to overhaul the UN Secretariat in 2006: “Experience within the United Nations system and elsewhere tells us that reform or change initiatives fall apart or are not sustained over time unless there is strong leadership from the top, supported by a group of managers and responsible officials assigned full-time to making change happen.”7

The evolution of the R2P concept Individual leaders The Secretary-General The United Nations Secretary-General is viewed variously as a guardian of the Charter, a mediator, a champion of human rights, a conscience of the world, and a human gadfly. Perhaps the greatest political space available to any Secretary-General is in the area of norm entrepreneurship.8 Norm entrepreneurs “spot gaps in the existing normative architecture of world order and engage in moral proselytism in order to fill those gaps.”9 Kofi Annan, the United Nations’ seventh Secretary-General, was a norm entrepreneur who was able to use his position as a platform and a bully pulpit to shape norms. He was appointed Secretary-General at a time when the international system provided an opportunity for the Secretary-General to play a greater role in providing intellectual leadership and in shaping the global agenda. Such a role was also urgently needed because of the myriad global challenges facing humanity – from drugs and organized crime to state failure and genocide, from epidemics to terrorism, from climate change to ethnic and religious clashes. Annan considered the protection of human rights as one of the most important tasks of the United Nations. He believed that sovereignty implied responsibilities as well as powers, and that among those responsibilities, none was more important than protecting citizens from violence and war. National sovereignty was not to be used as a shield for those who wantonly violated the rights and lives of their fellow human beings. In his Ditchley Foundation Lecture in June 1998 he declared: The Charter was issued in the name of “the peoples”, not the governments, of the United Nations. Its aim is not only to preserve international peace – vitally important though that is – but also “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person.” The Charter protects the sovereignty of peoples. It was never meant as a license for governments to trample on human rights and human dignity. Sovereignty implies responsibilities, not just power.10 128

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The idea of two notions of sovereignty – one for states, one for individuals – was also present in the lecture, which was delivered in the fiftieth anniversary year of the Universal Declaration of Human Rights. Annan chose “humanitarian intervention” as the theme of his speech to the General Assembly in September 1999. The context for that speech was the failures of the United Nations in Srebrenica and Rwanda – which Annan acknowledged in self-critical reports he commissioned – and the crisis in Kosovo.11 Profound differences within the Security Council regarding state sovereignty, on the one hand, and the moral imperative to act forcefully in the face of gross human rights violations, on the other, prevented the Council from intervening in the Kosovo crisis. Annan’s speech was intended to spark a wide-ranging and constructive debate on how the international community can better protect the dignity and sanctity of every human life. It was a challenge to member states to find consensus on the question of the responsibility of the international community in the face of massive violations of human rights. The speech ignited a fierce debate among member states.12 The critics of the concept of humanitarian intervention, including many in the G-77, raised three main objections: first, that it could become a fig leaf for unnecessary interference in the internal affairs of sovereign states; second, that secessionist movements might provoke governments into committing gross violations of human rights in order to prompt external intervention in support of their cause; and third, that there was inconsistency in the practice of intervention, and that weak states were more likely to be the subjects of intervention than strong states.13 The following year, in his millennium report, Annan reflected on what he called “the dilemma of intervention.”14 He recognized “both the force and importance” of the arguments of member states who were concerned about the dangers of the concept of humanitarian intervention. But he stated: “We confront a real dilemma. Few would disagree that both the defense of humanity and the defense of sovereignty are principles that must be supported. Alas, that does not tell us which principle should prevail when they are in conflict.”15 Annan reiterated a familiar argument: national sovereignty must not be used as a shield for crimes against humanity, and in the face of mass murder, armed intervention authorized by the Security Council was an option that cannot be abandoned. At the United Nations Millennium Summit in September 2000, several world leaders addressed the issue of humanitarian intervention and sovereignty. In many ways, the speeches were responses to Annan’s report. Some supporters, like the United States, maintained that sovereignty must be respected, but ways must be found – whether through diplomacy, sanctions, or collective force – to protect people as well as borders. At the same time, a number of member states, including a P-5 member, China, were critical of humanitarian intervention and underlined the continuing importance of national sovereignty.16 At the dawn of the twenty-first century, it was far from certain that member states would make progress in the difficult process of building a global consensus on intervention for human protection. As Annan acknowledged in his 2000 Annual Report on the work of the organization: It is, of course, relatively easy for the international community to assert that the tragedies of Rwanda and Srebrenica should never be allowed to happen again. But if the reaction to my address last year to the General Assembly is any guide, I fear we may still prove unable to give a credible answer to the question of what happens next time we are faced with a comparable crime against humanity.17 A Secretary-General could stake out the moral high ground, and Annan carefully chose occasions on which to do so, but he could not get too far ahead of the member states. A skillful leader must at times push the envelope, but must also know when not to push too far. 129

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Annan welcomed the report of the International Commission on Intervention and State Sovereignty (ICISS) on its release in 2001. A central achievement of the report was contained in its title: The Responsibility to Protect. It re-cast the fundamental issue of the debate on intervention from a “right to intervene” to a “responsibility to protect.” The report made only one recommendation to the Secretary-General: “to give consideration, and consult as appropriate with the President of the Security Council and the President of the General Assembly, as to how the substance and action recommendations of this report can best be advanced in those two bodies, and by his own further action.” Annan consulted the Presidents of the Security Council and the General Assembly informally on the report. He also engaged in a regular dialogue on related issues with member states, and particularly with the Security Council, both through his thematic reports on prevention, and on the protection of civilians in armed conflict, and in addressing specific crises. The UN World Summit held in September 2005 was a unique opportunity for world leaders to come together and agree on a collective response to the multiple threats and challenges faced by people everywhere in the new century. Prior to the Summit, Annan circulated to all member states an In Larger Freedom report containing proposals for policy changes and institutional adjustments in the three interconnected areas of development, security, and human rights.18 He urged world leaders to embrace R2P, which had been endorsed by the High-level Panel as an “emerging norm.”19 The Secretary-General had helped to move the terms of the debate in that direction. As the world’s diplomat, the Secretary-General is well positioned to broaden the consensus on R2P, implement institutional reforms, and mobilize the appropriate actors when atrocities are imminent or ongoing. Both Kofi Annan and his successor Ban Ki-moon considered R2P a priority.20 Ban has focused on broadening the consensus on R2P and delineating its scope. In his 2009 report entitled Implementing the Responsibility to Protect, Ban clarified the contours of R2P, presenting it as a principle with three pillars: (1) the protection responsibilities of the state; (2) international assistance and capacity building; and (3) timely and decisive response.21 Despite the staunch opposition of several rejectionists,22 Ban also took concrete steps to institutionalize R2P. He appointed Edward Luck as Special Adviser to the Secretary-General on matters related to R2P, and is setting up a joint office (JO) for the Prevention of Genocide and the Promotion of the Responsibility to Protect. The JO will act as the institutional focal point for R2P within the UN, and combine the work of Edward Luck and Francis Deng, Special Adviser to the Secretary-General on the Prevention of Genocide. Both Deng and Luck are authorized to convene the relevant Under-Secretaries-General to develop policy options for civilian protection in case countries are “manifestly failing” to do so.23 Edward Luck’s primary tasks include conceptual development and consensus building.24 Both Luck and Deng used their diplomatic skills to broaden the support for R2P and reassure skeptical UN delegations about the compatibility of the principle and their national sovereignty. Their efforts demonstrated the importance of pragmatism as a key ingredient of effective leadership. The decision to encourage developing nations, particularly those that experienced atrocities under a previous regime, to voice their support for R2P in UN debates was crucial for the credibility of the advocacy camp. The support of African states in the Security Council and General Assembly was also critical in assuaging the concerns of major powers such as China. Special Advisers Deng and Luck also play an instrumental role in coordinating with the principal UN organs, encouraging departments, funds, programs, and agencies to adopt an R2P lens when conducting development work, peacekeeping operations, or political missions. Deng’s office developed a framework for analyzing the country risk of genocide, one 130

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of the four crimes that fall within the scope of R2P.25 Other senior UN officials have also stressed the importance of implementing R2P and mainstreaming it throughout the UN system. Within the UN, the need for leadership is most critical at times when states fail to protect their citizens from R2P crimes. The international diplomatic efforts following Kenya’s disputed 2007 presidential election exemplify R2P’s potential contribution to the prevention and mitigation of atrocities. On several occasions during the Kenyan crisis, key UN officials invoked R2P and urged both Kenyan leaders and the international community to take up their responsibility. Eventually the Security Council took up the issue and issued a Presidential Statement, reminding the Kenyan leadership of “their responsibility to engage fully in finding a sustainable political solution and taking action to immediately end violence, including ethnically motivated attacks, dismantle armed gangs, improve the humanitarian situation and restore human rights.”26 Kofi Annan led the mediation effort aimed at resolving the Kenyan crisis, with the support of the United Nations, the European Union, and the United States. He negotiated a political settlement that included a power-sharing agreement aimed at ending the violence and preventing its recurrence.27 The power-sharing agreement included a reform agenda to bring about constitutional and institutional reforms, and land reform. R2P was only invoked after the violence erupted, underlining the continuing reluctance of the international community to apply this concept, even to a crisis situation. But the invocation of R2P certainly bolstered international efforts to resolve the crisis and pressured Kenya’s leadership to find an acceptable solution.28

Scholars, practitioners, and publicists Long before Secretary-General Annan raised “the dilemma of intervention” in the Millennium Report, scholars and practitioners had been debating the limits of sovereignty and potential for external action to halt mass atrocities. In an effort to bridge the perceived incompatibility between state sovereignty and the protection of civilians, these visionary individuals provided the conceptual underpinnings of the R2P debate. In his earlier incarnation as Representative of the UN Secretary-General on Internally Displaced Persons and as a scholar, Francis Deng and his colleagues at the Brookings Institution articulated the principle of “sovereignty as a responsibility,” which “became … a central conceptual underpinning of the responsibility to protect as it finally emerged.”29 A promising yet controversial initiative came from Bernard Kouchner, French Minister of Foreign and European Affairs, and co-founder of Médecins Sans Frontières. His attempt to create consensus on “le droit d’ingérence” or “right to intervene” was, similar to today’s R2P agenda, aimed at preventing the next Rwanda. But in contrast to R2P, the right to intervene approach is inherently reactive. It focuses mainly on military efforts in response to mass atrocities, and gives inadequate attention to the economic, diplomatic, and legal tools available to prevent these crimes from occurring in the first place. The concept faced strong opposition from parts of the developing world and never came close to receiving consensus approval. However, Kouchner did succeed in moving the old concept of humanitarian intervention to the center of foreign policy debates. R2P is receiving serious attention from academics and practitioners, resulting in a growing number of publications on the subject. The Secretary-General’s reports on R2P have put forward a vision for translating R2P from principle to practice. Two recently published books provide important perspectives on the evolution of the principle and efforts to implement it. Gareth Evans’s The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All is an 131

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authoritative and compelling account of how R2P can prevent crimes against humanity by one of the principle’s architects. The second book, Responsibility to Protect: The Global Effort to End Mass Atrocities, by Alex Bellamy, a leading academic, provides a lucid and meticulous analysis of R2P’s intellectual roots and progress towards operationalizing R2P. Bellamy is also the founding head of the Asia-Pacific Center on the Responsibility to Protect, and was instrumental in founding the journal Global Responsibility to Protect.

The role of member states R2P’s normative development was also spearheaded by member states that, individually or as a coalition, prioritized the protection of civilians from atrocities. Canada’s leadership role in this enterprise was critically important. Canadian Foreign Minister Lloyd Axworthy was the major inspiration behind the ICISS. He had advanced the concept of human security and supported the Ottawa Treaty banning anti-personnel landmines. Axworthy established the ICISS in response to Annan’s challenge in the Millennium Report: In his millennium report, the UN Secretary-General challenged the international community to address the highly complex problem of state sovereignty and international responsibility. Canada’s human security agenda is all about putting people first. We are establishing this Commission to respond to the Secretary-General’s challenge to ensure that the indifference and inaction of the international community, in the face of such situations as occurred in Rwanda and Srebrenica, are no longer an option.30 Together with other like-minded countries, including the Nordic states, Switzerland, and the Netherlands, the administrations of Jean Chrétien (1993–2003) and Paul Martin (2003–6) demonstrated the catalyzing role middle powers could play on the international scene. Under the chairmanship of Canada and Rwanda,31 about 30 UN member states joined up to form the “Friends of R2P.” This informal group coordinates its strategy prior to thematically relevant UN discussions.

The role of civil society Civil society is a new constituency with whom the United Nations now engages, and it is both an advocate and a partner in achieving the goals of the organization. NGOs and think tanks involved in conflict prevention, development, or human rights work such as the International Crisis Group (ICG) or Human Rights Watch (HRW), and organizations working specifically on R2P like the Global Centre for the Responsibility to Protect (GCR2P) and the International Coalition for the Responsibility to Protect (ICRtoP), advance the principle by building capacity in fragile countries, contributing to conceptual debates, and calling for action. Both GCR2P and ICRtoP were founded by a coalition of global and regional NGOs32 to advance and consolidate the World Summit consensus on R2P.33 GCR2P is more research and policy focused, and ICRtoP is more of a public advocacy and education network. During the General Assembly debate on “Early warning, assessment and the responsibility to protect” in July 2010, several member states recognized the crucial role civil society can play in providing early warning to key actors. Organizations like GCR2P, ICRtoP, and associated centers in Europe, Africa, Latin America, and Southeast Asia, effectively pressure decision makers and channel public engagement on R2P. 132

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The role of regional and sub-regional organizations Various intergovernmental organizations played a catalytic role in the advancement of R2P, notably the African Union (AU). Three years before world leaders adopted R2P at the 2005 UN World Summit, African states had embraced key elements of the principle in the AU’s 2002 Constitutive Act. Article 4(h) of the Act specifies “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity.” This marked a radical departure from the AU’s predecessor, the Organization of African Unity, which was founded in 1963 on the principles of state sovereignty, nonintervention, and noninterference. The Rwandan genocide in 1994 was a significant factor in this fundamental change of approach. The genocide was a collective failure to prevent or stop the slaughter of thousands of defenseless human beings. It also demonstrated that the consequences of genocide and mass atrocities are long-lasting and not confined to the countries in which they occur. However, normalizing R2P in Africa remains a complex and challenging project. Its potential is also constrained by a lack of resources, capacity, and strong institutions.34 On the whole, European governments have been supportive of R2P, and the European Union (EU) has taken a strong positive position in General Assembly debates. The European Parliament has endorsed the principle in resolutions, and R2P is likely to appear as a priority in the next European Security Strategy. One of the main challenges for the EU will be unity of purpose across its 27 member states. It has expanded its state-building initiatives, enhanced its crisis-management tools, and created an External Action Service to address the bureaucratic challenges in implementing a common foreign and security policy.

The Responsibility to Protect agenda The need for conceptual, institutional, and political leadership According to Gareth Evans and Edward Luck, the main challenges facing R2P are conceptual, institutional, and political, and leadership is needed to meet all three.35 In the context of R2P, conceptual leadership involves clarifying the scope of the R2P principle, its objectives, and the means of implementation. Institutional leadership refers to the creation of institutional and operational capacity to prevent and halt R2P crimes. And political leadership refers to initiatives by key players to broaden the consensus on R2P and push for effective action before and after the outbreak of atrocities. The conceptual, institutional, and political challenges are interrelated. Political leadership by appropriate actors is a sine qua non for operational effectiveness; operational readiness could enhance political support; and conceptual clarity may create the political space needed for implementation. Although leadership in all three areas is vital, the need for political leadership currently seems most urgent.

Conceptual leadership For over ten years, scholars and practitioners have discussed the scope of R2P. Although important questions remain, the core principles underlying R2P are defined and agreed upon. R2P’s basic tenets, laid out in paragraphs 138 and 139 of the 2005 World Summit Outcome document, were unanimously adopted by heads of state and government, and reaffirmed in both Security Council and General Assembly resolutions.36 The Secretary-General’s reports preceding the annual General Assembly interactive dialogues on R2P further elaborated the often-cryptic 133

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language. What emerged as a vague concept in 2001 has now received consensus approval on its key components: sovereign states carry a primary responsibility to protect people at risk; the scope is limited to four specified crimes;37 and robust collective action in a timely and decisive manner requires Security Council authorization. Despite this basic consensus several conceptual loopholes remain. One of the remaining contending issues is the comprehensiveness of the responsibility to prevent. Scholars disagree whether this “single most important dimension of the responsibility to protect”38 merely refers to operational or direct prevention, or whether it includes structural or root-cause prevention efforts. Under the narrow interpretation, R2P should only apply to the use of direct and shortterm prevention efforts in situations where mass atrocities are imminent.39 The ICISS report suggests that combining crisis management and efforts to address deep-rooted structural problems allows for the greatest potential effectiveness. However, adopting a broad interpretation could harm R2P’s political utility. According to Alex Bellamy, “[a]ssociating a comprehensive account of conflict prevention with the R2P is likely to dilute the principle, making it less able to marshal the necessary international commitment to protect endangered populations.”40 It is also unclear how strategies to prevent R2P crimes differ from efforts to prevent armed conflict more broadly. These conceptual puzzles with important operational ramifications will need to be addressed by R2P scholars and practitioners. Other pressing challenges include the lack of a formal legal definition of ethnic cleansing,41 the absence of codified criteria or evidentiary thresholds for specific R2P operations, and the confusion about regional organizations’ legal ability to initiate early and flexible responses to crises. Answers to these and other questions need to be found within the boundaries of the framework agreed upon at the 2005 World Summit. The conceptual obstacles that remain should not keep the international community from acting based on the existing commitments. As Ban Ki-moon observed: “The task ahead is not to reinterpret or renegotiate the conclusions of the World Summit but to find ways of implementing its decisions.”42 There is little controversy about the use of diplomatic and economic means to stop ongoing atrocities occurring. The recent violence in Kyrgyzstan demonstrated once again that neither early warning signs, nor widespread ethnic violence, automatically trigger a robust international response. The 2010 and 2011 General Assembly dialogues on early warning and assessment, and the role of regional organizations, are steps in the right direction towards the development of “UN strategy, standards, processes, tools and practices for the responsibility to protect.”43

Institutional leadership Effective strategies to prevent mass atrocities will necessarily involve a variety of actors at the international, regional, and local level. Efforts to strengthen operational capacity will need to be complemented with new mechanisms to facilitate coordination and information sharing. Within the UN, the Secretary-General, together with Special Advisers Luck and Deng, will need to assess the existing capacity to implement R2P strategies, suggest solutions to fill the gaps, and enhance partnerships. Ban Ki-moon’s decisions to appoint a Special Adviser dealing with R2P and create the new joint office represent tangible steps to institutionalize R2P. As a next step, the UN leadership will need to define the roles of both Special Advisers and modify the existing framework of analysis from the Office of the Special Adviser for the Prevention of Genocide (OSAPG) so that it includes all four R2P crimes. Both Deng and Luck will need to use their diplomatic skills to overcome the turf battles that will surely emerge. The new joint office could be authorized to act as the UN focal point for 134

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early warning and assessment, gathering both in-house and external information, and take concrete measures to prevent mass atrocities short of military action. A major shortcoming of the UN is the lack of an effective early warning system. Early warning has not been a regular activity in the UN system with the exception of some specialized agencies. A number of unsuccessful attempts have been made to create an early warning and comprehensive information system for the Secretariat. The Office for the Research and Collection of Information (ORCI) was established in 1988 with early warning as one of its functions, but it was merged with the Department of Political Affairs in 1992.44 In 2000, the “Brahimi Report” proposed the establishment of an Information and Strategic Analysis Secretariat for the Executive Committee for Peace and Security, but this recommendation has still not been implemented.45 Unfortunately, the resources for the new JO will likely remain minimal. Structural change within the UN only occurs incrementally. But the extent to which this new office can deliver will largely depend on the vision, pragmatism, and courage of those in charge: the member states, the Secretary-General, and his Special Advisers. Bridging the existing commitment–capabilities gap will also require new investments and reform outside the UN. The African Union, European Union, and individual countries should prioritize the strengthening of their early warning systems and early engagement frameworks. Other intergovernmental organizations, like the Association of Southeast Asian Nations (ASEAN), the Organization of American States (OAS), the League of Arab States, and South Asian Association for Regional Cooperation (SAARC), should follow the example of the EU and AU, and reinforce the early warning systems, mediation tools, rapid response capability, and structural prevention efforts within their respective regions.

Political leadership The advance of the R2P agenda ultimately depends on political leadership. It requires political leadership to strengthen the operational capacity within national and intergovernmental structures and meet some of the remaining conceptual challenges. Without the willingness of political leaders to prioritize civilian protection and allocate resources accordingly, the promise of R2P will not be realized. Fortunately, political will is “capable of creation and subject to change: its presence or absence is not a given.”46 In relation to R2P, political leadership can be demonstrated in two distinct ways: by strengthening the consensus on R2P’s principles; and by authorizing preventive and, if necessary, robust reactive action on the ground. Consensus building: Broadening the consensus on R2P’s principles is crucial to move the normalization process forward. Through consultations and dialogue, the key players in the R2P debate, including the friends of R2P, the Secretary-General, the Special Advisers, civil society organizations, and supportive governments or individuals with the necessary political capital, ought to coordinate their efforts to increase the global awareness about R2P and mobilize political support at the regional, national, and grassroots levels. Existing efforts to broaden the consensus among UN member states commonly include, on the one hand, efforts to consolidate the friends of R2P and, on the other hand, initiatives targeting indifferent or undecided countries that so far refrained from vocal activism. The support of those countries that experienced mass atrocities under a previous regime, like Sierra Leone, Guatemala, or Cambodia, would strengthen the advocacy camp in the General Assembly. Less common are initiatives to undermine the detrimental role R2P rejectionists like Cuba, Sri Lanka, Venezuela, and Zimbabwe continue to play. The breadth of global consensus on R2P is critical, since mass atrocities do not restrict themselves to any region of the world.47 Countering the opposition in the General Assembly would facilitate the adoption of a stronger resolution on R2P following a 135

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future debate on the issue. In turn, such a resolution would increase the pressure to institutionalize the principle and take “timely and decisive action” next time countries manifestly fail to protect their citizens. Some progress has been made to this end through regional consultations attended by R2P skeptics that upheld an absolutist interpretation of sovereignty. Some of the initial critics, including regional powers Brazil, Indonesia, and India, but also Vietnam, now agree that the Council should take timely and decisive action to protect populations from R2P crimes.48 Regional organizations that include opponents could continue to place R2P on their agenda, or provide the impetus for joint UN statements endorsing the principle. Prevention and reaction on the ground: The rhetorical support for R2P within the General Assembly does not ensure effective action on the ground. The Security Council, SecretaryGeneral, and heads of both weak and powerful states still need to make difficult political decisions to prevent tensions from rising early on and authorize robust responses if necessary. The 2005 World Summit Outcome document and 2009 Secretary-General’s Report49 reconfirmed the Council’s unique prerogative to authorize the ultimate R2P tool, military force. However, the Council’s selectiveness in the face of mass atrocities, and the persistent threat of vetoes to block action in response to R2P crimes undermines the legitimacy of the entire UN system. In the recent past, actual or threatened vetoes by Security Council members have blocked the timely deployment of Chapter VII missions: France, the United Kingdom, and the United States in 1994 (Rwanda); and China and Russia in 1999 (Kosovo) and 2003 (Sudan), and 2012 (Syria). A restriction on the use of vetoes to prevent action against mass atrocities when national interests are not at stake could alleviate this problem. The personal engagement of the Secretary-General will be crucial when there is evidence that genocide or mass atrocities are being planned or are about to occur. As the world’s diplomat, the Secretary-General is in a unique position to mobilize powerful international players and world public opinion. Early warnings from the JO that are brought to his attention should automatically trigger a Security Council session to assess the gravity of the situation. The 1997 Carnegie Commission on “Preventing Deadly Conflict” already recommended more frequent use of Article 99 by the SG to bring potentially violent situations to the attention of the Council.50 Whenever atrocities are imminent, senior UN officials face the daunting task of shepherding R2P through the maze of UN politics. Since 2005, R2P has been invoked by the Security Council (Sudan), the Secretary-General (Kenya), Special Advisers Deng and Luck (Kenya and Kyrgyzstan), individual countries like Norway (Sri Lanka), the Palestinian Authority (Gaza), and reputable civil society organizations like GCR2P, the International Crisis Group, and Human Rights Watch.51 Yet until now, these appeals have not always resulted in effective reactive action, let alone prevention. Operational effectiveness is nevertheless key to saving lives and enhancing the credibility of the United Nations. Political leadership is not only critical within the policy community in New York. As the World Summit Outcome document made clear, the state has primary responsibility to protect its citizens from genocide, war crimes, ethnic cleansing, and crimes against humanity. Those fragile states most at risk need to take steps to reduce tensions when possible; recognize their own limitations; request assistance from neighbors or the international community if needed; and allow for external operations on the ground if crises escalate beyond their control. After a recent visit by Special Adviser Francis Deng to Guinea, the local leadership acknowledged the country’s fragility and requested genocide prevention training from the OSAPG. Good neighbors as well as far-away governments with the necessary capacity also carry the responsibility to assist countries unable to meet their obligations. Regional powers and organizations supportive of R2P should engage fragile countries in the area and urge them to exercise their responsibility to protect. Powerful regimes ought to “lead by example,” devoting resources and 136

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demonstrating their willingness to act. Particularly when peace enforcement is authorized, the buy-in of regional powers and countries with technical or financial means will be indispensable.

Conclusion Leadership was instrumental in getting world leaders to endorse R2P and in defining what it actually means. Leadership will remain essential in overcoming the conceptual, institutional, and political obstacles that remain. Leadership will be required to ensure consistency in the application of the principle. In the final analysis, however, the success of R2P will be judged, not by its conceptual rigor or institutional foundations, but by facts on the ground. Acts of leadership are usually demonstrated in response to conscience-shocking events. However, leadership is needed in the prevention stage as well, as action before crises holds the greatest promise.52 The adoption of R2P by heads of state and government at the UN World Summit in 2005 signaled a change in the relationship between sovereignty and international responsibility. It also reflected a perceptible shift in world public opinion. Its overarching significance is that we all, as human beings, have a responsibility to protect each other regardless of creed, color, language, religion, or ethnicity, and that there is no place which is “a far-away country … of [which] we know nothing” as Neville Chamberlain infamously said of Czechoslovakia in 1938. The role of leadership in R2P is an example of leadership in the service of a noble cause.

Notes 1 Kofi Annan, “A Progress Report on UN Renewal,” New World, April–June 2006, p. 8. 2 Brian Urquhart and Erskine Childers, A World in Need of Leadership: Tomorrow’s United Nations (Uppsala: Dag Hammarskjold Foundation, 1990), pp. 7–8. 3 Ronald Heifetz, “Leadership: It Should not be Equated with Mere Authority,” Nieman Reports, 49/3 (1995), pp. 20–22. 4 Robert W. Cox, “The Executive Head: An Essay on Leadership in International Organization,” International Organization, 23/2 (1969), pp. 205–30. 5 Joseph Masciulli and W. Andy Knight, “Conceptions of Global Leadership for Contextually Intelligent, Innovatively Adaptive Political Leaders,” in Joseph Masciulli, Mikhail A. Molchanov and Andy W. Knight, eds., The Ashgate Research Companion to Political Leadership (Surrey: Ashgate Publishing Limited, 2009), pp. 89–122. 6 Ramesh Thakur, The United Nations, Peace and Security (New York: Cambridge University Press, 2006), p. 333. 7 Kofi Annan, Investing in the United Nations for a Stronger Organization Worldwide, A/60/692, 7 March 2006, p. 40. 8 For a detailed discussion of norm entrepreneurs see Ann Florini, “The Evolution of International Norms,” International Studies Quarterly, 40/3 (1996), p. 375. 9 Thakur, The United Nations, Peace and Security, p. 13. 10 Kofi Annan, Secretary-General Reflects on “Intervention” in Thirty-Fifth Annual Ditchley Foundation Lecture, SG/SM/6613, 26 June 1998. 11 A/54/549, 15 November 1999 and S/1999/1257, 16 December 1999. 12 For a discussion of the furore caused by the speech see Thomas G. Weiss, “The Politics of Humanitarian Ideas,” Security Dialogue, 31/1 (2000), pp. 11–23. 13 Kofi Annan, We the Peoples: The Role of the United Nations in the Twenty-first Century, A/54/2000, 27 March 2000, p. 34. 14 Ibid. 15 Ibid. 16 Statement by President Jiang Zemin of the People’s Republic of China at the Millennium Summit of the United Nations, 6 September 2000, http://www.un.org/millennium/webcast/statements/china. htm (accessed 19 January 2012). 17 Kofi Annan, Report of the Secretary-General on the Work of the Organization, A/55/1, 30 August 2000, p. 5.

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18 Kofi Annan, In Larger Freedom: Towards Development, Security and Human Rights for All, A/59/2005, 21 March 2005. 19 High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (New York: United Nations, 2004). 20 While Kofi Annan’s personal efforts to further R2P are often heralded, Ban Ki-moon has been criticized for lacking the necessary leadership skills. See Alex J. Bellamy, “The Responsibility to Protect – Five Years On,” Ethics and International Affairs, 24/2 (2010), p. 143 and 148; Ramesh Thakur, “The Model of a Mediocre Secretary General,” Ottawa Citizen, 25 September 2009, http://www2.canada. com/story.html?id=2041865 (accessed 24 December 2010). 21 Ban Ki-moon, Implementing the Responsibility to Protect, A/63/677, 12 January 2009, p. 2. 22 Rejectionist countries include, but are not limited to, Cuba, Egypt, Iran, Nicaragua, Sri Lanka, Sudan, Syria, and Venezuela. 23 “[If] national authorities are manifestly failing to protect their populations from these crimes, I will invoke new internal procedures to expedite and regularize the process by which the United Nations considers its response and its recommendations to the appropriate intergovernmental body or bodies. In such cases, I will ask the Special Advisers to convene an urgent meeting of key Under-SecretariesGeneral to identify a range of multilateral policy options, whether by the United Nations or by Chapter VIII regional arrangements, for preventing such mass crimes and for protecting populations. Such an emergency meeting will be prepared through a working level process convened by the Special Advisers, and the results, including the pros and cons of each option, will be reported promptly to me or, should I choose, to the Policy Committee.” Ki-moon Ban, Early Warning, Assessment and the Responsibility to Protect, A/64/864, 14 July 2010, pp. 7–8. 24 SG/A/1120, 21 February 2008. 25 Office of the Special Adviser of the Secretary-General on the Prevention of Genocide, “Analysis Framework,” 19 October 2009, http://www.un.org/preventgenocide/adviser/pdf/OSAPG%20Analysis FrameworkExternalVersion.pdf (accessed 19 January 2012). 26 UNSC, “Statement of the President of the Security Council,” S/PRST/2008/4, 6 February 2008. 27 Gareth Evans, The Responsibility to Protect, Ending Mass Atrocity Crimes Once and For All (Washington, DC: Brookings Press, 2008), p. 51. 28 Cristina G. Badescu and Thomas G. Weiss, “Misrepresenting R2P and Advancing Norms: An Alternative Spiral?,” International Studies Perspectives, 11 (2010), pp. 354–74, p. 361. 29 Evans, The Responsibility to Protect, p. 37. 30 Lloyd Axworthy, “Launch of International Commission on Intervention and State Sovereignty,” Speech launching the ICISS in Ottawa, Canada, 14 September 2000, see press release at http://www. iciss.ca/press1-en.asp (accessed 24 December 2010). 31 The Netherlands recently replaced Canada as co-chair of the group of friends. 32 These NGOs included the International Crisis Group, Human Rights Watch, and Oxfam International. 33 Marc Saxer, “The Politics of Responsibility to Protect,” Friedrich Ebert Stiftung Briefing Paper, April 2008, p. 3. 34 For further analysis see, for example, Paul D. Williams, “From Non-Intervention to Non-Indifference: The Origins and Development of the African Union’s Security Culture,” African Affairs, 106 (April 2007), p. 423. 35 Evans, The Responsibility to Protect, p. 54; Edward Luck, “The Normative Journey: The Evolution of the R2P Concept,” Presentation at 2010 European Science Foundation Conference, “The Responsibility to Protect: from Principle to Practice,” Linkoping, Sweden, 9 June 2010. 36 S/RES/1674, 28 April 2006; S/RES/1894, 11 November 2009; and A/63/677, 12 January 2009. 37 Genocide, war crimes, ethnic cleansing, and crimes against humanity. 38 International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect (Ottawa: IDRC, 2001), p. xi. 39 Eli Stamnes, “Operationalizing the Preventive Aspect of R2P,” Report by Norwegian Institute for International Affairs on the Responsibility to Protect (2008), http://www.globalr2p.org/pdf/R2P-1Stamnes.pdf (accessed 19 January 2012), p. 6. 40 Alex J. Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge: Polity Press, 2009), p. 100. 41 In 1996 the International Law Commission adopted the final text of the Draft Code of Crimes Against the Peace and Security of Mankind, including genocide, crimes against humanity, and war crimes. The international community has reached consensus on these three of the four specific R2P atrocity crimes.

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42 A/63/677, 12 January 2009. 43 Ban Ki-Moon, Implementing the Responsibility to Protect, A/63/677, 12 January 2009, p. 1. 44 Tapio Kanninen and Chetan Kumar, “The Evolution of the Doctrine and Practice of Early Warning and Conflict Prevention in the United Nations System,” in B. G. Ramcharan (ed.) Conflict Prevention in Practice: Essays in Honour of Jim Sutterlin (Leiden: Martinus Nijhoff Publishers, 2005). 45 Report of the Panel on United Nations Peace Operations, A/55/305–S/2000/809, 21 August 2000, http://www.un.org/peace/reports/peace_operations/ (accessed 24 December 2010). 46 Evans, The Responsibility to Protect, p. 224. 47 Madeleine K. Albright and William S. Cohen (eds.), Preventing Genocide: A Blueprint for U.S. Policymakers (Washington, DC: United States Holocaust Museum, American Academy of Diplomacy, and United States Institute of Peace, 2008), p. 5. 48 Global Centre for the Responsibility to Protect, “Implementing the Responsibility to Protect, The 2009 General Assembly Debate: An Assessment,” August 2009, http://globalr2p.org/media/pdf/ GCR2P_General_Assembly_Debate_Assessment.pdf (accessed 19 January 2012). 49 Ban Ki-Moon, Implementing the Responsibility to Protect, A/63/677, 12 January 2009, p. 22. 50 Carnegie Commission on Preventing Deadly Conflict, Preventing Deadly Conflict: Final Report (Washington, DC: Carnegie Commission on Preventing Deadly Conflict, 1997), p. 138. 51 Alex J. Bellamy, “The Responsibility to Protect,” p. 149. 52 Albright and Cohen, Preventing Genocide, p. 2.

Bibliography Albright, M. K. and Cohen, W. S. (eds.) (2008). Preventing Genocide: A Blueprint for U.S. Policymakers. Washington, DC: United States Holocaust Memorial Museum, American Academy of Diplomacy, and United States Institute of Peace. Annan, K. (1998). Secretary-General Reflects on “Intervention” in Thirty-Fifth Annual Ditchley Foundation Lecture (SG/SM/6613). ——(1999). The Fall of Srebrenica (A/54/549). ——(2000a). Report of the Secretary-General on the work of the Organization (A/55/1). ——(2000b). We the Peoples: The Role of the United Nations in the Twenty-First century (A/54/2000). ——(2005). In Larger Freedom: Towards Development, Security and Human Rights for All (A/59/2005). ——(2006a). A Progress Report on UN Renewal, New World, April–June, pp. 6–11. ——(2006b). Investing in the United Nations for a Stronger Organization Worldwide, Report of the SecretaryGeneral (A/60/692). Axworthy, L. (2000). Launch of International Commission on Intervention and State Sovereignty, Speech launching the ICISS in Ottawa, Canada, 14 September. Retrieved at http://www.iciss.ca/press1-en.asp (accessed 24 December 2010). Badescu, C. G. and Weiss, T. G. (2010). Misrepresenting R2P and Advancing Norms: An Alternative Spiral? International Studies Perspectives, 11, 354–74. Ban, K. (2009). Implementing the Responsibility to Protect (A/63/677). ——(2010). Early Warning, Assessment and the Responsibility to Protect (A/64/864). Bellamy, A. J. (2009). Responsibility to Protect: The Global Effort to End Mass Atrocities. Cambridge: Polity Press. ——(2010). The Responsibility to Protect – Five Years On, Ethics and International Affairs, 24 (2), 143–69. Carnegie Commission on Preventing Deadly Conflict (1997). Preventing Deadly Conflict: Final Report. Washington, DC: Carnegie Commission on Preventing Deadly Conflict. Cox, R. W. (1969). The Executive Head: An Essay on Leadership in International Organization, International Organization, 23 (2), 205–30. Evans, G. (2008). The Responsibility to Protect, Ending Mass Atrocity Crimes Once and For All. Washington, DC: Brookings Press. Florini, A. (1996). The Evolution of International Norms, International Studies Quarterly, 40 (3), 363–89. Global Centre for the Responsibility to Protect (2009). Implementing the Responsibility to Protect, The 2009 General Assembly Debate: An Assessment, http://globalr2p.org/media/pdf/GCR2P_General_Assembly_ Debate_Assessment.pdf (accessed 19 January 2012). Heifetz, R. (1995). Leadership: It Should Not be Equated with Mere Authority, Nieman Reports, 49 (3), pp. 20–22. High-level Panel on Threats, Challenges and Change (2004). A More Secure World: Our Shared Responsibility. New York: United Nations.

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International Commission on Intervention and State Sovereignty (2001). The Responsibility to Protect. Ottawa: IDRC. International Law Commission (1996). Draft Code of Crimes Against the Peace and Security of Mankind. In Yearbook of International Law Commission (A/CN.4/SER.A/1996/Add. 1). New York: United Nations. Kanninen, T. and Kumar, C. (2005). The Evolution of the Doctrine and Practice of Early Warning and Conflict Prevention in the United Nations System. In B. G. Ramcharan (ed.), Conflict Prevention in Practice: Essays in Honour of Jim Sutterlin. Leiden: Martinus Nijhoff Publishers. Luck, E. (2010). The Normative Journey: The Evolution of the R2P Concept. Presentation at 2010 European Science Foundation Conference “The Responsibility to Protect: From Principle to Practice”, 9 June, Linkoping, Sweden. Masciulli, J. and Knight, W. A. (2009). Conceptions of Global Leadership for Contextually Intelligent, Innovatively Adaptive Political Leaders. In J. Masciulli, M. A. Molchanov, and W. A. Knight (eds.), The Ashgate Research Companion to Political Leadership (pp. 89–122). Surrey: Ashgate Publishing. Office of the Special Adviser of the Secretary-General on the Prevention of Genocide (2009). Analysis Framework, http://www.un.org/preventgenocide/adviser/pdf/OSAPG%20AnalysisFrameworkExternal Version.pdf (accessed 19 January 2012). Saxer, M. (2008). The Politics of Responsibility to Protect. Friedrich Ebert Stiftung Briefing Paper, http:// library.fes.de/pdf-files/iez/global/05313–20080414.pdf (accessed 19 January 2012). S/1999/1257, 16 December 1999. SG/A/1120, 21 February 2008. S/PRST/2008/4, 6 February 2008. S/RES/1674, 28 April 2006. S/RES/1894, 11 November 2009. Stamnes, E. (2008). Operationalizing the Preventive Aspect of R2P. Report by Norwegian Institute for International Affairs on the Responsibility to Protect, http://www.globalr2p.org/pdf/R2P-1-Stamnes.pdf (accessed 19 January 2012). Thakur, R. (2006). The United Nations, Peace and Security. New York: Cambridge University Press. ——(2009). The Model of a Mediocre Secretary General, Ottawa Citizen, http://www2.canada.com/ story.html?id=2041865 (accessed 19 January 2012). United Nations (2000). Report of the Panel on United Nations Peace Operations (A/55/305-S/2000/ 809), http://www.un.org/peace/reports/peace_operations/ (accessed 19 January 2012). Urquhart, B. and Childers, E. (1990). A World in Need of Leadership: Tomorrow’s United Nations. Uppsala: Dag Hammarskjold Foundation. Weiss, T. G. (2000). The Politics of Humanitarian Ideas, Security Dialogue, 31 (1), 11–23. Williams, P. D. (2007). From Non-Intervention to Non-Indifference: The Origins and Development of the African Union’s Security Culture, African Affairs, 106 (423), April, 253–79.

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11 R2P AND NATURAL DISASTERS Joanna Harrington

In his 2008 book The Responsibility to Protect (R2P), Gareth Evans, the former co-chair of the International Commission on Intervention and State Sovereignty (ICISS), former president of the International Crisis Group (2000–9), and former Australian Foreign Minister (1988–96), identifies the belief that “R2P covers all human protection issues” as one of five common misunderstandings affecting the very strength of the R2P concept.1 The concern voiced by Evans (and shared by others) is that an all-encompassing or even broad interpretation of the “responsibility to protect” obligation, as it was embraced in the World Summit Outcome document in 2005,2 will dilute the concept’s utility as a rallying cry for both individual and collective state action. Of course, this is not to say that human protection issues or matters of human security in general do not deserve, nor require, international attention and action. But the R2P concept,3 as adopted by the international community of states, has an agreed formulation for its invocation, and to stretch the concept beyond its agreed terms fuels suspicions held by weaker states of a hidden interventionist agenda, which will ultimately harm the utility of R2P.4 While some may praise the notion that a concept or guiding principle of such recent creation could gain such lengthy legs in such a short period of time, I agree with Evans that the various incantations and expansive applications, even when well intentioned, risk draining the R2P concept of its vitality and strength, while also lending an air of unreality to the principle’s practical aspirations. The invocation of R2P as a catchword or slogan to authorize states to act to address catastrophic natural disasters provides an example of the above concern. Clearly, natural disasters, whether caused or exacerbated by natural phenomena such as earthquakes, volcanoes, tsunamis and floods, are of increasing worldwide concern, with millions of people having endured their devastating consequences. Catastrophic natural disasters may also prompt a clear and practical need for humanitarian assistance from non-affected states, whether the natural disaster is contained within one country, such as Hurricane Katrina in 2005, or affecting multiple states in multiple regions, as with the Indian Ocean tsunami of 2004. No rule of international law obliges one state to offer assistance to another in the aftermath of a natural disaster, although states are free to place a future need for assistance on a legal footing by entering into bilateral and regional arrangements. There are, however, situations where disaster-affected states delay or prevent the provision of relief from other states, as demonstrated in May 2008 during the aftermath of Cyclone Nargis, a powerful tropical cyclone that killed 130,000 in the Irrawaddy 141

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River delta of Myanmar (Burma) and affected 2.4 million more.5 The frustration of the international community with the initial refusal of the Myanmar government to permit the entry of aid from other states led to an intense debate concerning the application of R2P, with the norm’s invocation to justify the delivery of aid by force only serving to emphasize its lack of clarity and, in turn, adding strength to the fears of a hidden interventionist agenda. In the final analysis, the incorrect invocation of R2P to address the cyclone’s aftermath was problematic, if not counter-productive, and it has detracted attention from efforts already underway to address the aftermath of natural disasters through cooperative arrangements that respect international law. It also triggered a warning from the UN Secretary-General in July 2008,6 and again in January 2009, that: The responsibility to protect applies, until Member States decide otherwise, only to the four specified crimes and violations: genocide, war crimes, ethnic cleansing and crimes against humanity. To try to extend it to cover other calamities, such as HIV/ AIDS, climate change, or the response to natural disasters, would undermine the 2005 consensus and stretch the concept beyond recognition or operational utility.7 This chapter is organized into three sections. In the first section, I discuss the evolution of the R2P concept with a view to identifying any mentions of the concept’s application to natural disasters, while also drawing attention to the concept’s limited scope, given the agreed formulation’s reliance on four specific triggers or descriptions of man-made catastrophes. All four agreed triggers are identifiable crimes under international law. I then discuss the Myanmar cyclone controversy of 2008, noting how the R2P concept could have had application if there had been a complete refusal of aid for an extended period of time in circumstances where the government knew that atrocities would result from its refusal. I then discuss, albeit briefly given the space constraints, the developments that are taking place within the international community to formulate a clearer legal position with respect to international assistance following a catastrophic natural disaster, with such efforts providing a greater potential for inter-state cooperation than any broad-based, and thus misdirected, invocation of the R2P concept.

The evolution of an agreed formulation On the eve of the twenty-first century, with NATO’s intervention in Kosovo and inaction in Rwanda dominating foreign policy discussions, UN Secretary-General Kofi Annan challenged the international community to forge a consensus on the basic questions of principle and process relating to one of the most controversial issues: the asserted “right of humanitarian intervention” or right of intervention for human protection purposes.8 Canada responded to this challenge in September 2000 by creating and resourcing an independent 12-member body, known as the International Commission on Intervention and State Sovereignty (ICISS). Canada gave this body the mandate to address “the question of when, if ever, it is appropriate for states to take coercive – and in particular military – action, against another state for the purpose of protecting people at risk in that other state.”9 The ICISS was also tasked with considering fully the legal, moral, operational and political dimensions of its efforts to reconcile intervention and state sovereignty. After a year of extensive research and consultations,10 the ICISS delivered a consensus report to the UN Secretary-General with the hope that the report could lead the international community towards a new common ground. As is well known, the report’s central theme was “the idea that sovereign states have a responsibility to protect their own citizens from avoidable catastrophe – from mass murder and rape, from starvation – but that when they are unwilling or unable to do 142

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so, that responsibility must be borne by the broader community of states.”11 The use of the term “avoidable catastrophe” is worth noting. As originally envisioned by the ICISS, the idea of a responsibility to protect, comprising three substantive components (namely, a responsibility to prevent, a responsibility to react and a responsibility to rebuild),12 would have had application to situations of natural disaster, including those considered unavoidable catastrophes. While there is no discussion of natural disasters in the report’s supplementary research volume, and the matter does not arise within the context of a state’s responsibility to prevent, the members of the ICISS did include natural disasters within the list of circumstances that would justify a “responsibility to react” on the part of the international community to situations of compelling need for human protection.13 The specific wording of the inclusion is as follows: “overwhelming natural or environmental catastrophes, where the state concerned is either unwilling or unable to cope, or call for assistance, and significant loss of life is occurring or threatened.”14 Since the ICISS also made clear that calls for intervention for human protection purposes must be grounded as limited exceptions to the usual principle of non-intervention, each illustrative situation included within the report justified intervention on the grounds of scope and gravity, as well as the serious and irreparable harm occurring to human beings, or imminently likely to occur.15 In expressing these principles, the ICISS deliberately drew no distinction between situations where the harm was caused by state action and situations where it was not,16 reflecting its conclusion, expressed earlier within the report, that the security debate in general had shifted away from a narrow focus on territorial security to a wider conception of “security through human development with access to food and employment, and to environmental security.”17 The ICISS Report was released in September 2001. Three years later, its central theme had entered the wider lexicon of UN reform. The principle of a “responsibility to protect” received endorsement in the preparatory works for the World Summit of 200518 and was later included by consensus in the Summit’s Outcome document adopted by world leaders on 16 September 2005 within the forum of the UN General Assembly.19 The first endorsement of the R2P proposal can be found in the 2004 report of the independent 16-member “High-level Panel on Threats, Challenges and Change,” which concluded that “sovereignty carries with it the obligation of a state to protect the welfare of its own peoples,” but when states are “unable or unwilling to do so that responsibility should be taken up by the wider international community.”20 However, in endorsing what it called “the emerging norm of a collective international responsibility to protect,”21 the High-level Panel focused its attention on intervention “in man-made catastrophes,”22 recognizing a responsibility vis-à-vis people suffering from what it termed “avoidable catastrophes – mass murder and rape, ethnic cleansing by forcible expulsion and terror, and deliberate starvation and exposure to disease.”23 Although the High-level Panel had recognized elsewhere in its report that a “dramatic increase in major disasters [had taken place] in the last 50 years,” and that “more than two billion people were affected by such disasters in the last decade,”24 the Panel did not endorse the connection made by the ICISS between intervention and natural disasters. Instead, the High-level Panel urged UN agencies and the world’s international financial institutions to work in a more integrated fashion, and in partnership with governments and research institutions, to assist states most vulnerable to severe natural disasters.25 Among non-man-made catastrophes (albeit a debatable term),26 only “an overwhelming natural outbreak of an infectious disease” attracted the Panel’s express support for coercive action by the Security Council.27 In March 2005, the “responsibility to protect” concept received the endorsement of then UN Secretary-General Kofi Annan in a pre-Summit document clearly intended to cement the interrelationship between state security and the concept of human security.28 Using bold format 143

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lettering for emphasis, Annan advised his readers that “we must embrace the responsibility to protect, and, when necessary, we must act on it.”29 But even with the devastation of the Indian Ocean tsunami of December 2004 at the forefront of humanitarian relief discussions,30 Annan made no connection between intervention and natural disasters. Instead, Annan looked to disaster-specific actions to be taken, endorsing the implementation of a framework for action that had been recently adopted at a World Conference on Disaster Reduction held in Japan,31 and recommending “the establishment of a worldwide early warning system for all natural hazards, building on existing national and regional capacity.”32 Annan also sought a survey of existing UN capacities and gaps, and the improvement of rapid response arrangements for immediate humanitarian relief.33 He further urged the UN Economic and Social Council (ECOSOC) to “convene timely meetings, as required, to assess threats to development, such as famines, epidemics and major natural disasters, and to promote coordinated responses to them.”34 In September 2005, the concept of “a responsibility to protect” was incorporated expressly into the Outcome document of the World Summit at the behest of the assembled heads of state and government,35 with its approval by states marking an important shift in thinking with respect to the breadth and limits of state sovereignty.36 As adopted, the concept of R2P, including the corresponding responsibility of the international community to act when a state is manifestly failing in its duties, has four triggers: genocide, war crimes, ethnic cleansing and crimes against humanity. All four triggers are recognized as crimes under international law,37 with the primary responsibility of the state and the secondary responsibility of the international community drawing a structural parallel to the complementarity basis for the legal regime of the Rome Statute of the International Criminal Court.38 Notably, there is no express trigger for natural disasters within the narrower conception of R2P that has received the approval of the UN General Assembly, with natural disasters being addressed within the outcome document through specific disaster-related activities, such as the establishment of a worldwide early warning system for all natural hazards with regional nodes, such as the newly established Indian Ocean Tsunami Warning and Migration System.39 The 2005 conception of R2P, with its four triggers, has since been expressly “reaffirmed” by the UN Security Council within an operative paragraph of a 2006 resolution on the “Protection of civilians in armed conflict,”40 albeit that none of the above documents are considered sources of binding international law.41

The Myanmar cyclone controversy Cyclone Nargis was the worst natural disaster to strike Myanmar, causing catastrophic destruction and thousands of deaths, and leaving much of the region under water. Yet, despite the enormity of the disaster, and the affected state’s inability to respond in an effective and timely manner, the military junta governing Myanmar imposed restrictions on foreign assistance, refusing to issue visas to permit foreign aid workers to enter the country and restricting access to the most affected areas.42 Frustrated by the delay and lack of progress, and worried about the possibility of a second wave of fatalities arising from an outbreak of infectious disease, France’s Foreign Minister Bernard Kouchner (also the co-founder of the humanitarian aid organization Médicins sans Frontières), called upon the UN Security Council to authorize the delivery of aid without Myanmar’s consent on the basis of the “responsibility to protect” principle. He made this call on 7 May 2008,43 five days after the cyclone had hit. Some, such as China, rejected Kouchner’s proposal out of hand on the grounds that R2P did not apply to natural disasters, while others agreed with the view of Sir John Holmes, the UN’s Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, that Kouchner’s call for Security Council action was “unnecessarily confrontational.”44 Other states, especially those in North America, Europe and 144

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Australia, were however open to hearing the argument, with Britain initially supporting the positions of both China and John Holmes, but later welcoming at least a discussion of R2P’s application.45 None of Myanmar’s neighbours, however, found the R2P label helpful.46 Clearly, Kouchner’s call for action sparked an intense discussion within and between foreign capitals, as well as in the media, on whether the principle of R2P could be used to authorize the provision of humanitarian aid by force to a non-consenting state in the aftermath of a catastrophic natural disaster.47 He also ignited a discussion among international lawyers and legal advisers within various foreign ministries tasked with advising on R2P. From a legal perspective, it had to be noted that the 2005 resolution underpinning the adoption of the R2P concept, albeit a political text not a legal one, only provides for four triggers for invoking R2P, and of those four triggers, only crimes against humanity had any potential relevance to the Myanmar situation. This was not a situation involving a genocide, war crime or ethnic cleansing.48 However, for the crimes against humanity trigger to come into play, there would need to be a continued denial of aid by the Myanmar government to a point in time where the denial (or failure to take action) could be viewed, from an international criminal law perspective, as an intentional effort to secure further fatalities within the Irrawaddy River delta.49 Crimes against humanity are defined under international law so as to encompass a range of “inhumane acts intentionally causing great suffering or serious injury” that are “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”50 Severely restricting life-saving humanitarian aid to victims of a natural disaster might be considered an inhumane act, but Myanmar’s restriction of foreign aid – even if viewed as a denial of all aid – in the initial days of the cyclone’s aftermath was insufficient to establish that Myanmar’s leaders had the requisite intent to commit crimes against humanity, and thus trigger the invocation of the R2P principle.51 Placing restrictions on the delivery of aid does not, in and of itself, constitute a crime against humanity. Moreover, as Evans has noted, even if a prima facie case of crimes against humanity had been established, military intervention authorized by the Security Council is only a last resort under R2P.52 (Although, to be fair, it should be noted that Kouchner was seeking Council approval for unfettered humanitarian access, rather than military intervention.)53 In any event, forced aid by military airdrop, or by boat landing, also raises objections of a practical nature, with the effectiveness of such efforts requiring an organized network on the ground to ensure that the aid gets to where it is needed. Aerial relief drops are, by their nature, imprecise, and they can result in the dropped cargo being seized by authorities or by the strongest and most mobile among a surviving population. Airdrops without state consent are also illegal,54 resulting in a potential harm to the efforts of aid agencies that are already in the country if they lead to demands for the withdrawal of all foreign aid workers in retaliation. Lastly, from an international relations perspective, an argument was made within the media, and presumably within and between capitals, that “there would be no better way to damage responsibility to protect beyond repair” than to have aid forcibly delivered by Western soldiers to an Asian country without its consent,55 recognizing that Asian states were among those most skeptical about the entire R2P project.56 In the end, the Myanmar controversy was resolved through concentrated diplomatic effects, particularly at the regional level and with the assistance of the Association of Southeast Asian Nations (ASEAN), which convinced the government of Myanmar to participate in a coordinated relief and reconstruction effort.57 International humanitarian assistance and supplies of food and medicine were provided to Myanmar through Asian intermediaries,58 local relief organizations, such as the Myanmar Red Cross Society, and foreign relief organizations with personnel already based in Myanmar, such as Médicins sans Frontières and Save the Children. 145

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Moreover, the feared “second wave” of disaster caused by an outbreak of infectious disease did not take place. By mid-June 2008, the Myanmar government had also addressed the backlog of visa requests and demands for travel authorization from international organizations wanting to provide assistance in cyclone-affected areas.59 However, as confirmed by Evans, “the [Myanmar cyclone] affair did generate a serious international debate about R2P,” which in his view, “appears to have advanced, if only a little, international understanding of the scope and limits of the norm” of R2P.60

The strengthening of international disaster relief law But the controversy concerning the use of the R2P principle to justify the forced delivery of aid to Myanmar in May 2008 also had the effect of ignoring, or undervaluing, what has been achieved in other fora through both bilateral and multilateral cooperation to provide for international disaster relief activities within the confines of international law. One does not need to override the basic principle of state consent under international law, nor engage in debates about the tenuous application of crimes against humanity, nor confuse a desire to respond to a genuine humanitarian emergency with a more general wish to see the end of a dictatorial military regime,61 to support existing cooperative efforts to strengthen the law concerning international disaster relief. While such efforts stretch back to at least 1927, and the establishment of the International Relief Union,62 the extent of the impact of recent natural disasters such as the Indian Ocean tsunami of 2004 have led to a renewed interest in the development of an international framework for disaster relief activities. Evidence of this interest can be found in the UN Secretary-General’s endorsement of the 2005 Hyogo declaration and framework for action aimed at disaster reduction found in the same report that contained his endorsement of the R2P principle,63 with the declaration and framework forming the basis for subsequent UN activity.64 Complementary efforts are also taking place within the wider humanitarian assistance community, with the International Federation of Red Cross and Red Crescent Societies having developed a set of guidelines to facilitate and regulate international disaster relief and initial recovery assistance.65 International disaster relief law is a multidimensional field of law, consisting of an interconnected and complex collection of general principles, codes of conduct, specific agreements and multilateral arrangements, combined with the general provisions of international law applicable to the cross-border transfer of personnel, equipment and goods. Most disaster relief-related activity respects such basic principles of international law as sovereignty and non-intervention through a requirement of consent from the state receiving the assistance, and, ideally, in response to an appeal for help from the affected state.66 Other principles, including the principles of neutrality, impartiality and humanity,67 as well as the obligations of human rights law that encourage respect for the principle of human dignity, are also important guideposts for disaster relief activity,68 supported by codes of conduct to govern the activities of personnel involved in disaster relief operations. While it has long been recognized that every state “has the responsibility first and foremost to take care of the victims of natural disaster,”69 various bilateral treaties can apply to disaster-related situations, including “search and rescue agreements, standby capacity agreements, the establishment and maintenance of early warning mechanisms, as well as agreement[s] to cooperate in risk identification and management, and contingency planning.”70 These arrangements may also have regional counterparts, such as the ASEAN Agreement on Disaster Management and Emergency Response adopted in July 2005 in response to the Indian Ocean tsunami, which entered into force in December 2009.71 International disaster relief activities are also affected by rules of national and international law on the exchange of information between states, the entry of foreign workers, immunities, the importation of goods, 146

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over-flight and landing rights, and the protection of internally displaced persons, among many other aspects.72 In light of the complexity of the subject matter, the International Law Commission has embarked upon a multi-year study of the protection of persons in the event of disasters. This study began in 2007, but by 2009 it had become clear that the Commission would not support an interventionist approach to the delivery of disaster relief and aid, whether or not under an R2P banner, preferring instead a cooperative approach that recognized the primary (but not exclusive) responsibility of the affected state to protect persons affected by a disaster on its territory.73 The Commission is also in agreement with the conclusion put forward by the UN Secretary-General in his 2009 report that the concept of R2P does not apply to natural disasters.74 Instead, the Commission has focused its efforts on the development and recognition of an affected state’s “duty to cooperate” with other states, and in appropriate circumstances, with non-state actors, albeit that the affected state retains its right to refuse assistance from abroad.75 The Commission’s study remains in progress.

Conclusion Although the actions of the Myanmar government in the aftermath of Cyclone Nargis did not justify the invocation by others of the principle of R2P, it is nonetheless worth noting that the R2P principle may have some application to situations of natural disaster where the actions of an affected state constitute crimes against humanity under international law. However, to avoid unravelling the consensus achieved in 2005, it is important to emphasize that this position is not a revival of the ICISS view that R2P could be invoked in situations of “overwhelming natural or environmental catastrophes” since this position has failed to attract the endorsement of the international community. Instead, the potential invocation of R2P in situations of natural disaster rests on the very words of the concept as adopted by states in 2005, although its application should only be invoked in the clearest of situations, given the high threshold that is intended by the connection made to the world’s most serious international crimes. For most situations of natural disaster, it would appear that greater support for international efforts to provide assistance will likely arise if one does not invoke R2P, but instead focuses on the cooperative efforts undertaken by organizations such as ASEAN, and by bodies such as the International Federation of Red Cross and Red Crescent Societies and the International Law Commission, to clarify and develop the law concerning state obligations in response to natural disasters. Cooperative efforts to put in place mutually beneficial arrangements to provide for early warning systems, the import of telecommunications equipment,76 and the relaxation of customs procedures for relief-related goods and equipment, as well as efforts to encourage the freer movement of aid workers to affected areas, are worth encouraging. While these efforts may not fit under an R2P banner aimed at justifying intervention without the consent of the affected state, there remains a more nuanced link to be drawn between R2P and natural disasters based on the concept’s underlying goal to encourage states to take preventive action, first and foremost at home, including in collaboration with others, to reduce the risk of mass atrocities and improve the protection of persons during catastrophic natural disasters.

Notes 1 G. Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All (Washington, DC: Brookings Institution Press, 2008), pp. 64–69. The other four misunderstandings are that R2P is just another name for humanitarian intervention; that in extreme situations, R2P always entails the use of

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2 3

4 5

6

7

8 9

10 11 12 13

14 15 16 17 18

19 20 21 22 23 24 25 26

coercive military force; that R2P only applies to weak and friendless countries; and that Iraq 2003 was an example of the application of R2P. 2005 World Summit Outcome, GA Res. 60/1 (2005), paras. 138–39, reproduced in Resolutions and Decisions of the General Assembly, UN Doc. A/60/49 (vol. I), pp. 3–25. The R2P concept is not called a “norm” at the UN because it does not have a binding legal quality: E. C. Luck, “Environmental Emergencies and the Responsibility to Protect: A Bridge Too Far?,” Proceedings of the Annual Meeting of the American Society of International Law, 2009, vol. 103, p. 32. Evans, The Responsibility to Protect, p. 65. UN Office for the Coordination of Humanitarian Affairs, Myanmar Cyclone Nargis: OCHA Situation Report No. 35 (26 June 2008), para. 1, http://ochaonline.un.org/MyanmarSituationReports/tabid/ 4600/Default.aspx (accessed 17 January 2012). UN Secretary-General Ban expressed this caution at an event on “Responsible Sovereignty: International Cooperation for a Changed World,” held in Berlin in July 2008: UN Doc. SG/SM/11701 (2008). Implementing the Responsibility to Protect: Report of the Secretary-General, UN Doc. A/63/677 (2009), para. 10(b) (emphasis added). This warning against over-breadth was deliberate, as acknowledged by the report’s drafter and Special Advisor to the UN Secretary-General, Edward C. Luck: Luck, “Environmental Emergencies,” pp. 35–36. For a review of the 2009 report, see S. K. Sharma, “Toward a Global Responsibility to Protect: Setbacks on the Path to Implementation,” Global Governance, 2010, vol. 16, pp. 129–32. See We the Peoples: The Role of the United Nations in the Twenty-First Century: Report of the SecretaryGeneral, UN Doc. A/54/2000 (2000), paras. 215–19. See ICISS Report, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre, 2001), p. vii, http://responsibility toprotect.org/ICISS%20Report.pdf (accessed 25 January 2012). See the accompanying volume, The Responsibility to Protect: Research, Bibliography, Background (Ottawa: International Development Research Centre, 2001). ICISS Report, The Responsibility to Protect, p. viii. Ibid., p. xi. As to who among the international community bears the responsibility to intervene, the ICISS allowed for various options, including the General Assembly and regional organizations, but the reports of the High-level Panel and the Secretary-General, as well as the 2005 World Summit Outcome document, indicate a desire for any coercive collective action to be taken by the Security Council. See further, C. Stahn, “Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?,” American Journal of International Law, 2007, vol. 101, pp. 106–10, 120. ICISS Report, The Responsibility to Protect, p. 33, para. 4.20. Ibid., pp. 32–33. Ibid., p. 33, para. 4.22. Ibid., p. 15, para. 2.22. High-level Panel Report, A More Secure World: Our Shared Responsibility: Report of the High-level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (2004), paras. 199–203, http://www.un.org/ secureworld/ (accessed 18 January 2012); In Larger Freedom: Towards Development, Security and Human Rights for All: Report of the Secretary-General, UN Doc. A/59/2005 (2005), paras. 132 and 135, http:// www.un.org/largerfreedom/ (accessed 18 January 2012). GA Res 60/1, paras. 138–39. High-level Panel Report, A More Secure World, paras. 29 and 201. Ibid., para. 203. This paragraph is later expressly endorsed by the UN Secretary-General in his 2005 report, In Larger Freedom, para. 135. High-level Panel Report, A More Secure World, para. 199. Ibid., para. 201. Ibid., para. 53. Ibid., para. 73. Some natural disasters may not be purely “natural” but rather the result of multiple causes, including the effects of humanity’s impact on the environment. In practice, humanitarian emergencies may result from a mixture of causes, partly natural and partly man-made: P. Macalister-Smith, International Humanitarian Assistance: Disaster Relief Actions in International Law and Organization (Dordrecht: Martinus Nijhoff, 1985), pp. 2–3.

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27 28 29 30

31 32 33 34 35 36

37 38 39 40 41

42

43

44

45 46

47 48

49

High-level Panel Report, A More Secure World, para. 144. In Larger Freedom, paras. 16–22. Ibid., para. 135 (emphasis in original). In December 2004, an undersea megathrust earthquake triggered a series of devastating tsunamis affecting the coastal states of the Indian Ocean, including Indonesia, Thailand, and Sri Lanka; 240,000 people died, both in South Asia and East Africa, making this natural disaster one of the worst in history. See further Report of the Secretary-General on Strengthening Emergency Relief, Rehabilitation, Reconstruction, Recovery and Prevention in the Aftermath of the Indian Ocean Tsunami Disaster, UN Doc. A/60/ 86-E/2005/77 (2005). See Report of the World Conference on Disaster Reduction: Kobe, Hyago, Japan, 18–22 January 2005, UN Doc. A/CONF.206/6 (2005), pp. 6–24. In Larger Freedom, paras. 65–66. Ibid., paras. 66 and 202–4. Ibid., para. 177. GA Res. 60/1, paras. 138–39. See further, Stahn, “Responsibility to Protect,” pp. 100–101. As one commentator has noted, it is a sign of their success that the R2P provisions were endorsed by both the US Ambassador to the UN, John Bolton, and the Non-Aligned Movement: T. G. Weiss, “R2P after 9/11 and the World Summit,” Wisconsin International Law Journal, 2006–7, vol. 24, no. 3, p. 745. See further, David Scheffer, “Atrocity Crimes Framing the Responsibility to Protect,” Case Western Reserve Journal of International Law, 2007–8, vol. 40, nos. 1–2, pp. 111–36. Adopted 17 July 1998, United Nations Treaty Series, vol. 2187, p. 3 (in force 1 July 2002), at Article 17. GA Res. 60/1, paras. 56(f)–(g). SC Res. 1674 (2006), para. 4. See J. E. Alvarez, “The Schizophrenias of R2P,” in P. Alston and E. Macdonald, eds., Human Rights, Intervention, and the Use of Force (Oxford: Oxford University Press, 2008), p. 276 (suggesting that “reaffirmation” gives the incorrect impression that the R2P concept is a principle of long standing). See R. Barber, “The Responsibility to Protect the Survivors of Natural Disaster: Cyclone Nargis, a Case Study,” Journal of Conflict and Security Law, 2009, vol. 14, no. 1, p. 4. See also UN Office for the Coordination of Humanitarian Affairs, Myanmar Cyclone Nargis: OCHA Situation Report No. 29 (9 June 2008), para. 4, and Myanmar Cyclone Nargis: OCHA Situation Report No. 30 (11 June 2008), para. 4, http://ochaonline.un.org/MyanmarSituationReports/tabid/4600/Default.aspx (accessed 18 January 2012). Asia Pacific Centre for the Responsibility to Protect, Cyclone Nargis and the Responsibility to Protect: Myanmar/Burma Briefing No. 2 (16 May 2008), p. 4. See also S. Mydans, “Myanmar Junta Accused of Delay in Storm Relief,” New York Times (8 May 2008), p. A1 (“…Kouchner, suggested that the United Nations should invoke its ‘responsibility to protect’ civilians as the basis for a resolution to allow the delivery of international aid even without the junta’s permission”). Asia Pacific Centre for the Responsibility to Protect, Cyclone Nargis, pp. 2–3. See also R. Thakur, “Should the UN Invoke the ‘Responsibility to Protect’?,” The Globe and Mail (Canada) (8 May 2008), p. A21. Asia Pacific Centre for the Responsibility to Protect, Cyclone Nargis, p. 3. Luck, “Environmental Emergencies,” p. 37. On views within the region, see A. J. Bellamy and S. E. Davies, “The Responsibility to Protect in the Asia-Pacific Region,” Security Dialogue, 2009, vol. 40, pp. 547–74. Kouchner’s call for action was widely reported, as noted in Evans, The Responsibility to Protect, p. 66, with key components of the media coverage noted at p. 279, notes 14–16. The crime of genocide refers to an act committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group: Convention for the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations Treaty Series, vol. 78, page 277 (in force 12 January 1951), art. 4. War crimes are serious violations of international humanitarian law, perpetrated in the course of an international or non-internationalized armed conflict, while ethnic cleansing refers to the forced displacement of one group of people by another from a particular territory. For further discussion of responsibility based on the harm caused by an omission or failure on the part of the government to act, see J. Wong, “Reconstructing the Responsibility to Protect in the Wake of Cyclones and Separatism,” Tulane Law Review, 2009, vol. 84, no. 2, pp. 219–63.

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50 See the opening words of Article 7(1) of the Rome Statute of the International Criminal Court, and more specifically, articles 7(1)(b) and 7(2)(b) (“extermination”) and Article 7(1)(k) (“other inhumane acts”). 51 See further, Barber, “The Responsibility to Protect the Survivors of Natural Disaster,” pp. 18–24. See also Wong, “Reconstructing the Responsibility to Protect in the Wake of Cyclones,” pp. 246–56. 52 Evans, The Responsibility to Protect, p. 67. See also G. Evans, “Facing Up to Our Responsibilities,” Guardian (12 May 2008), http://www.guardian.co.uk/commentisfree/2008/may/12/facinguptoour responsbilities (accessed 25 January 2012). 53 Asia Pacific Centre for the Responsibility to Protect, Cyclone Nargis, p. 4. Media commentary pushed the discussion towards mentions of military intervention. 54 International law has long recognized that a state’s sovereignty extends to the airspace above its land territory, internal waters and territorial sea: (Chicago) Convention on International Civil Aviation, 7 December 1944, United Nations Treaty Series, vol. 15, page 295 (in force 4 April 1947), art. 1. An airdrop without the consent of the state below is a breach of the international law obligation to respect another state’s territorial integrity, with the existence of this obligation having been affirmed by states in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), UN Doc. A/ 8082 Corr. 1 (1971). 55 Thakur, “Should the UN Invoke…” See also L. Charbonneau, “China, Indonesia Reject France’s Myanmar Push,” Reuters (8 May 2008), http://www.reuters.com/article/2008/05/08/idUSN08518240 (accessed 18 January 2012). 56 Asia Pacific Centre for the Responsibility to Protect, Cyclone Nargis, p. 9. 57 By the third week of May 2008, a Tripartite Core Group (TCG) consisting of high-level representatives from the government of Myanmar, ASEAN and the UN had been established to oversee the coordination of relief efforts: see UN Office for the Coordination of Humanitarian Affairs, Myanmar Cyclone Nargis: OCHA Situation Report No. 34 (23 June 2008), para. 2, http://ochaonline.un.org/ MyanmarSituationReports/tabid/4600/Default.aspx (accessed 18 January 2012). 58 Details of ASEAN’s Humanitarian Relief Efforts for Victims of Cyclone Nargis have been made available on a specially dedicated website with this title at: http://www.aseansec.org/CN.htm (accessed 18 January 2012). 59 UN Office for the Coordination of Humanitarian Affairs, Myanmar Cyclone Nargis, para. 3. 60 Evans, The Responsibility to Protect, p. 67. 61 As noted by Barber, “The Responsibility to Protect the Survivors of Natural Disaster,” p. 26, it did not assist a civil society group tasked with the promotion of the R2P project that had listed Myanmar as one of its countries of focus long before Cyclone Nargis caused its devastation. See also, International Coalition for the Responsibility to Protect, “The Crisis in Burma” (undated), http://www.responsibilitytoprotect.org/index.php/crises/crisis-in-burma (accessed 18 January 2012). 62 Convention Establishing an International Relief Union, 12 July 1927, League of Nations Treaty Series, vol. 135, page 297 (in force 27 December 1932 but now spent). See further, P. Macalister-Smith, “The International Relief Union of 1932,” Disasters, 1981, vol. 5, no. 2, pp. 147–54. 63 In Larger Freedom, paras. 65–66. 64 See International Cooperation on Humanitarian Assistance in the Field of Natural Disasters, from Relief to Development, GA Res. 64/251 (2010). 65 As noted in Arnold Pronto, “Consideration of the Protection of Persons in the Event of Disasters by the International Law Commission,” ILSA Journal of International and Comparative Law, 2008–9, vol. 15, pp. 449–57. See also J. B. Heath, “Disasters, Relief, and Neglect: The Duty to Accept Humanitarian Assistance and the Work of the International Law Commission,” New York University Journal of International Law and Politics, 2011, vol. 43, pp. 419–78. 66 See paragraph 3 of the annex on “Guiding Principles” attached to the resolution on Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations, GA Res. 46/182 (1991) (“humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country”). 67 Ibid., para. 2. 68 See Report of the International Law Commission, UN Doc. A/64/10 (2009), ch. VII, paras. 147–83. 69 Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations, para. 4. 70 Pronto, “Consideration of the Protection of Persons in the Event of Disasters,” pp. 451 and 455.

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71 The text of the agreement can be obtained from the official website of the Association of Southeast Asian States, http://www.aseansec.org/17579.htm (accessed 18 January 2012). 72 A useful listing of the range of legal issues arising in matters of international disaster assistance can be found in Pronto, “Consideration of the Protection of Persons in the Event of Disasters,” p. 452. A detailed discussion can be found in the memorandum prepared for the International Law Commission by its Secretariat on Protection of Persons in the Event of Disasters, UN Doc. A/CN.4/590 (2007). 73 See Report of the International Law Commission, UN Doc. A/65/10 (2009), ch. VII. 74 Ibid., para. 164. 75 See Report of the International Law Commission, UN Doc. A/65/10 (2010), ch. VII, paras. 290–331. 76 See further, Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations, 18 June 1998, United Nations Treaty Series, vol. 2296, page 5 (in force 8 January 2005).

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12 THE RESPONSIBILITY TO PROTECT AND CHILD SOLDIERS Shelly Whitman

The nature of conflict has changed since the end of the cold war and so too have the relationships between soldiers and civilians. Civilians are often directly targeted in armed conflicts that are taking place, from Afghanistan to the Democratic Republic of the Congo to Sri Lanka. A direct response to the protection of civilians was the creation of a doctrine known as the Responsibility to Protect (R2P). The basic premise of R2P is that if a state cannot protect its own civilians, or is actively trying to harm its civilians, then there is a global responsibility to intervene and protect them. The broadening of the security agenda to one of greater human security was embodied in the R2P principles. As the International Commission on Intervention and State Sovereignty (ICISS) Report states: “the kind of intervention we are concerned with is action taken against a state or its leaders, without its or their consent, for purposes which are claimed to be humanitarian or protective.”1 Armed groups are embracing unconventional war tactics, and these include utilizing children as soldiers. Such use of children is in clear violation of the Geneva Conventions, the Convention on the Rights of the Child and several other key international instruments that will be highlighted further in this chapter. It should be noted as well that such non-conventional tactics are being employed by governments and non-state armed actors alike. Governments and non-state actors that have used child soldiers include: “Afghanistan, Burundi, Central African Republic, Chad, Colombia, Côte d’Ivoire, the DRC, India, Indonesia, Iraq, Israel and the Occupied Palestinian Territory, Myanmar, Nepal, Philippines, Somalia, Sri Lanka, Sudan, Thailand and Uganda.”2 In addition, the author wishes to recognize that the use of children as soldiers is not a new phenomenon but international laws to protect children from such use are relatively new. Child soldiers are a complex local and global phenomenon. From Sri Lanka, Sierra Leone, DRC, Burma and Uganda to Columbia, every case has its set of diverse factors as well as commonalities that can be drawn upon to bring about potential solutions. The use of child soldiers is facilitated by the global economic system and the pillaging of resources. Child soldiering is an issue that spans a wide array of problems: from child labour, human trafficking, terrorism, and larger peace and development failures. Simply put, the child soldiers issue is not one that can be tackled by a “one size fits all” model. In addition, the issue should not be relegated to the bottom of the pile of the conflict-setting agenda. The following pages will highlight why this issue needs to be placed higher up on the priority list of governments and security sector actors alike. 152

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The aim of this chapter is to explore the R2P doctrine and its relevance to the child soldier problem. Despite the emergence and embrace of the R2P doctrine, the use and abuse of children by armed groups, state and non-state, has continued. In 2009 there were over 50 parties, state and non-state, listed by the Special Representative for the Secretary-General on Children and Armed Conflict for using children as soldiers. In 2010 that number decreased to 19 persistent violators who had been on the list for at least five years.3 However, it should be noted that estimates of the numbers of children used by armed groups are extremely difficult to obtain. In fact, the Coalition to Stop the Use of Child Soldiers argue that “although it is impossible to accurately calculate the number of children involved in armed forces and groups, they exist in all regions of the world and, almost inevitably, wherever there is armed conflict.”4 So, while on the one hand we are naming fewer persistent violators, on the other hand we do not have clear indicators on the numbers of children being used by armed groups globally. This chapter discusses the lack of discourse associated with the child soldier problem and how this relates to R2P. An analysis of three main elements that underpin the R2P doctrine – the Responsibility to Prevent, the Responsibility to React and the Responsibility to Rebuild – will be used here as the prism through which the child soldier problem is discussed.

Child soldiers Under the UN Convention on the Rights of the Child (CRC), a child is defined as any individual under the age of 18. The CRC is one of the most universally accepted international conventions, with 139 signatories and 192 parties to the Convention.5 However, it is not the only international convention that provides a definition of a child, nor is this definition uncontested as it fails to address cultural relativist arguments. It has been deemed inappropriate by the Canadian government, under Prime Minister Harper, to use the phrase “child soldiers.”6 Instead, the phrase “children in armed conflict” is generally preferred by the Canadian government. This is in part due to the many roles that children play in armed conflict; others argue it is due to the fact that children cannot legally be soldiers, and in part it is due to the politicization of particular cases that involve children in armed conflict, such as the Omar Khadr case. Omar Khadr is a Canadian citizen who was 15 years old when he allegedly threw a grenade that killed an American soldier in Afghanistan. He was subsequently sent to Guantanamo Bay Prison where he has been detained for eight years. The Canadian government have refused to intervene in his case despite calls to bring Omar Khadr back to Canada to face the judicial system at home. “The concern is that at the political level there is a sense that children involved with terrorist groups may not be classified as child soldiers, and that is simply not the case under international law,” states Kathy Vandergrift, Chair of the Canadian Coalition for the Rights of Children.7 The Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups defines a child soldier as: “any person below 18 years of age who is or has been recruited or used by an armed force or armed group in any capacity, including, but not limited to children, boys, and girls used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking, or has taken, a direct part in hostilities.”8 For the purposes of this chapter, I will be using the term “child soldiers” as defined by the Paris Principles. Groups such as UNICEF have preferred to move towards the term “children associated with armed groups,” which is distinct from the Canadian government perspective because it still recognizes the variety of roles played by boys and girls with a variety of armed groups, but does not deny their experiences that may be wholly distinct from children who are not associated with armed groups but can still be classified as those affected by armed conflict. 153

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It is also important to note that the most recent global estimate by the United Nations Special Representative to the Secretary General on Children and Armed Conflict is that there are approximately 250,000 child soldiers.9 This number, however, is subject to change the moment a new conflict erupts or a conflict ends. In addition, children may be disarmed, demobilized and then reinserted into their communities, only to be re-recruited. The military recruitment of children under the age of 18 and their use in hostilities still takes place in one form or another in at least 86 countries and territories worldwide.10

The use of children by armed groups Children are used by armed groups for a variety of reasons and every conflict has elements that are contextual that will dictate different roles for children in armed groups. Some of the basic reasons discussed for use of children by armed groups are: they are expendable in many conflict zones; the demographics of a particular country may be skewed so greatly towards those under 18 years of age that it leaves little choice for personnel; children are easily manipulated and indoctrinated; children are often viewed as inconspicuous and therefore good spies; they are fearless and often willing to take on roles that adults would not; they are cheap; the use of children creates a deliberate suspicion of all children in a community and is advantageous to armed groups wanting to instil fear; and, they can be used as human shields.11 Joseph Kony, leader of the Lord’s Resistance Army, increased his use of children as soldiers after the Ugandan Defence Forces (UPDF) received training on child protection.12 He understood that using children as human shields would protect him because the UPDF would now hesitate to shoot child soldiers as a result of this training. Girl soldiers comprise more than 40 per cent of the world’s child soldiers.13 Yet obtaining reliable data about girl soldiers is difficult due to the many problems associated with identifying the girl soldiers. This failure to recognize the roles of girls within armed groups is often due to the multiple roles that girls undertake in armed groups such as cooking, caring for younger children, spying, sexual slaves, collecting firewood and water, wives, porters, as well as taking on roles of direct combat. The stigmatization of girls that return to their communities creates barriers to fully understanding the numbers and extent of the girls’ involvement in fighting forces. During a recent research mission to the DRC, the author had many interviews with key stakeholders such as the UN, NGOs, peacekeepers, child protection agencies and local actors which all indicated that girls do not participate in combat directly, but instead fulfil support roles such as cooks, spies and sexual service. However, after interviewing girl soldiers, they indicated that this is completely incorrect and that there are two avenues for the girl soldiers: combatants and domestic servants. In their 2004 publication, Dyan Mazurana and Susan McKay asked the question, “Where are the Girls?” Yet the answer to this question is still not comprehensive as there remains a great deal to be understood about girls in armed groups and how to effectively address their use.14 However, the work of McKay and Mazurana, as well as that of Chris Coulter (2009) and Charli Carpenter (2004), sheds light on the roles that girls undertake in armed conflict and reminds us that the various overlapping duties girls undertake must be viewed in the larger political, social, cultural and economic context of the conflict itself.15 The Optional Protocol on the Involvement of Children in Armed Conflict specifies in Article 1 that “State Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.” Article 3(3) further states that “States Parties that permit voluntary recruitment into their national armed forces under the age of 18 years shall maintain safeguards to ensure, as a minimum, that: (a) Such recruitment is genuinely voluntary; (b) Such recruitment is carried out with 154

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the informed consent of the person’s parents or legal guardians; (c) Such persons are fully informed of the duties involved in such military service; (d) Such persons provide reliable proof of age prior to acceptance into national military service.” The Protocol was a major step forward in addressing the issue of the illegality of the use of children in armed groups. This Protocol has since been supplemented by United Nations Security Council resolutions, most notably SC Res 1612. Security Council Res 1612 focuses on six grave violations related to the use of children by armed groups. These six grave violations are: the killing or maiming of children; the recruitment and use of children as soldiers; attacks on hospitals or schools; denial of humanitarian access for children; abduction of children; and rape and other grave sexual abuse of children.16 This resolution recommends the effective monitoring and evaluation on a country-by-country basis of the use of children by armed groups. The resolution requires the Security Council Working Group on Children and Armed Conflict to collect and provide timely, objective, accurate and reliable information of the recruitment and use of child soldiers in violation of applicable international law, and on other violations and abuses committed against children affected by armed conflict, and that such a mechanism must operate with the participation of, and in cooperation with, national government and relevant United Nations and civil society actors. This resolution is an important stepping stone along the path of protection of children in armed conflict. However, many Security Council members have argued that the resolution places a great deal of work and pressure upon the Working Group and the Security Council – pressure that they are not capable of addressing.

Discourse on children and international security The traditional discourse on international security has most often characterized children as victims of conflict, occasionally as perpetrators and even less so as both victims and perpetrators. Children are often lumped with women and viewed as members of a larger group of “vulnerable populations” that are not traditionally viewed as key actors to the conflict. Scholars have relegated children to the margins, or, even more commonly, entirely excluded children as political actors.17 Child soldiers are clearly victims used by armed groups to achieve aims related to political power grabs, the exploitation of resources and coup attempts. Children are manipulated by those in power, forgotten by many international organizations, and rarely included in key decision-making bodies or peace efforts. At the same time, it is important to recognize the agency of children during armed conflict. This requires an understanding of the various local contexts in which children are brought into armed groups (e.g. abduction, forced recruitment, “voluntary recruitment,” to seek revenge and those that are sold by their parents into such armed groups). In some instances, it must be recognized, children have a degree of choice within a limited set of parameters. Joining an armed group may seem to be a better choice than not being able to attend school, feed oneself, not having employment or being powerless to protect oneself or one’s family. It is for the above reasons, I would argue, that it is very difficult to position children as perpetrators. In addition, calls to hold children used as soldiers accountable for their actions need to be questioned seriously. If it is illegal under international law for a child to be a soldier, then how can we possibly hold them responsible for their actions as a soldier? Instead the international criminal liability must be placed upon the highest levels of command responsibility for an armed group that knowingly violates this law by utilizing children. More importantly, children who “voluntarily” join armed forces or rebel units often do so because governments, communities, families and the international community have failed to provide a standard of living and security that allows for educational, vocational and employment opportunities to exist. 155

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Debates about the morality of the actions of child soldiers must be couched in the framework highlighted above. To suggest that children who are bribed, drugged, coerced by violent force and separated from all sense of what is right and wrong, are then able make moral choices is naive. Making comparisons between the actions of adult soldiers and child soldiers is therefore difficult, as one cannot compare adults whose thought processes and sense of morality have been formed before joining an armed group and children who are still in the process of shaping their minds and their world view. Many children devise deliberate tactics to survive their experiences within armed groups, which illustrates their adaptability or resiliency. Girls, in particular, have often displayed agency in their roles with armed groups. Myriam Denov addresses the many complexities of the girl soldier in “Girls in Fighting Forces: Moving Beyond Victimhood,” by looking at the specific roles girls can play within armed groups. Many girls view their roles as empowering. In becoming fighters, girls often became perpetrators of severe acts of violence and atrocities. In a minority of cases, a few girls appeared to evolve from being frightened, disoriented recruits into fierce combatants, steeped in a sense of collective purpose and power and perpetuating the culture of militaristic violence.18 Child soldiers are non-traditional actors that do take part in and have influence on global and local processes related to security. While children are highly pertinent to the study of security, they undoubtedly make up one of the few agents that have remained non-politicized in the eyes of the scholarly community, and are thus largely absent from the field of international relations and security studies.19 The exclusion of children from decisionmaking bodies, peace processes and security arrangements is also problematic on many levels. This exclusion is with reference to the place children have on such agendas, if any, and in terms of their ability to affect such processes. Girl soldiers provide challenges to the understandings of security and culture due to the various roles they undertake in armed groups. The reaction to, and framing of, the discourse on security and children is important to consider. For example, if the international media report that hostilities in Congo are carried out by armed youngsters … it might generate a strategic or security policy response from agents such as the European Union, the United Nations, and governments with forces deployed in peace-making missions in that area. If instead the news media discourse talks about children in Congo as victims of assault, malnourishment, or migration, NGOs and Western charities might see their leverage increase as well as their funds.20 In 1990 there was a World Summit for Children at the United Nations in New York that led to the increased visibility of children on the security agenda. In 1996, Graça Machel submitted her report on “The Impact of Armed Conflict on Children,” which led to the adoption of General Assembly Resolution 51/77 and established the mandate of the Special Representative of the Secretary-General on Children and Armed Conflict, Olara Otunnu. As a result of the advocacy of this office, of child-focused programmes and child protection units have been incorporated within peacekeeping missions. The Special Representative is a facilitator, undertaking humanitarian and diplomatic initiatives to facilitate the work of operational actors on the ground with regard to children and armed conflict.21 These are indeed positive developments that are a step in the right direction for the protection of children. In order to get children on the peace and security agenda, it is imperative to ensure that child protection provisions are included in all peace agreements. Such inclusion helps to guide the direction of peace missions, demobilization and rehabilitation programmes, and the subsequent allocation of funds and resources dedicated to the protection of children in conflict zones. Rules 156

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of engagement for peacekeepers generally disregard children as security actors, and reconstruction and reconciliation programmes that emerge from negotiations tend to ignore the differential impact on and particular needs of children. The effect is to marginalize persistent problems associated with children used by armed groups and the difficulties associated with the rehabilitation and reintegration of child soldiers, and, more broadly, to miss the opportunity to address widespread systemic problems common to war-torn societies such as lack of economic development, and poor social and health programmes.22 The following sections analyse the R2P doctrine in relation to the protection of children. In doing so, it is imperative to call to mind the security discourse discussed above and the need to raise the issues pertaining to children in armed groups higher up on the political agenda.

The responsibility to prevent The R2P doctrine implies explicitly the responsibility to prevent. It is clearly more beneficial, particularly in the long run, to attempt to prevent conflict than it is to have to react to conflict. As an example, the African Union has attempted to prepare for an enhanced role in the maintenance of peace and security by establishing a Peace and Security Council that is tasked with identifying threats and breaches of the peace.23 The R2P doctrine also requires a respect for sovereignty and the need to recognize that states and their institutional frameworks provide the first steps in ensuring that citizens are protected and treated fairly. As R2P doctrine further alludes, “the failure of prevention can have wide international consequences and costs.”24 The prevention of and early intervention in potential conflict situations may be essential in the efforts to end the use of children as soldiers. World order remains in a state of constant flux, with little end in sight to the panoply of wars and smouldering conflict that cover the international system. Diseases, famine, mass poverty, and so on continue to darken the once hopeful visions of globalization. The result is that a generation of estranged and isolated children is growing up without educational and economic opportunities, and without any hope of prospering. They make up the core of the child soldier recruiting pool in the present and future.25 Clearly a society in which children are actively used in combat is one that demonstrates symptoms of broken-down institutions and values. So, if we wait to address the use of child soldiers instead of addressing prevention of their use, we can surmise that the conflict and the degradation of society as a whole have moved to a point where solutions are complex, require long-term commitment and may be intractable due to the regional implications of such destabilization. As Rabwoni argues: “if there are good reasons for young people to volunteer to fight, they will do so, and no number of special programmes and laws will be able to prevent them from taking up arms.”26 The long-term consequences of child soldiering upon the children themselves, their communities and the peacekeeping troops that may interact with the children are undeniable and far more difficult to address after the fact. Such long-term consequences are defined below. In a sense, the worst legacy of the child soldier experience is that it never ends, shaping the child’s development and later adulthood.27 Let us consider the breakdown of society that occurs as a result of children in armed groups – families torn apart, children who have committed atrocities against their neighbours and family, girls who have given birth to children while in an armed group, communities that have lost their cultural beliefs with respect to caring for orphans, the spread of disease, the indoctrination of violence as a solution, and the stigmatization of children who have been associated with armed groups. 157

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It must also be noted that the use of child soldiers may provide some very important early warning signs with regard to the escalation of armed conflict. In 2009 there were increased reports of a formal campaign to recruit children into armed groups through an education effort by the Thai military. It is instructive that in spring 2010 the democratic protests and riots that occurred may have been predicted by such efforts.28 The long-term consequences of child soldiering are varied and often difficult to pinpoint as more longitudinal research needs to be conducted on the issue. It is also difficult to make generalizations about how former child soldiers have been affected because child soldiers are not a homogeneous group.29 However, what we do know is that the following are potential ramifications: the breakdown of traditional family structures; the use of violence becomes a common tool for negotiation; the loss of childhood leads to long-term impacts on overall well-being; the interruption of education often leads to the creation of groups of youth that are disaffected and without vocational skills for peacetime; children that are born within armed groups or born of rape in war constitute one of the most vulnerable sectors of war-affected children;30 the mental health consequences of participating within and witnessing extreme levels of violence can be detrimental to the overall psycho-social state of communities; and the physical effects of war such as disease, malnutrition, the loss of limbs and traumatic brain injury are costly on many levels to any society and its individuals.31 The use of child soldiers is in turn also costly to the global community, which will inevitably bear the brunt of nations that cannot economically sustain themselves due to intractable conflict, poor socio-economic conditions, the spill-over to neighbouring nations of conflict and economic migrants, or the need to intervene with peacekeeping forces. In addition, the options available for many former child soldiers are often rather limited in scope and hence many return to armed groups, private security companies and illegal activities for sources of income, which means that they are easily remobilized for conflict.32 Taking the soldier out of the child is a difficult task. Erasing the experiences is near impossible. Thus prevention is therefore critical. As Kofi Annan, former UN Secretary-General, stated: If there is any lesson that we can draw from the experience of the past decade, it is that the use of child soldiers is far more than a humanitarian concern; that its impact lasts far beyond the time of actual fighting; and that the scope of the problem vastly exceeds the numbers of children directly involved.33

The responsibility to react “The responsibility to protect implies above all else a responsibility to react to situations of compelling need for human protection.”34 Coercive measures may include political, economic, judicial and, only in extreme cases, military intervention as a last resort. As with all types of sanctions and political measures, it is paramount that the population at risk is not subjected to even more difficulties as a result of such measures. It would seem at this point that the use of children by armed groups in conflict should evoke the necessity to react. However, this action should be viewed in terms of a variety of options that may begin with the condemnation of states and armed groups that utilize child soldiers, to support for those who wish to get children out of the armed groups and then, when and if necessary, ultimately the intervention to coercively react to the conflict with the justification of protecting children. However, this has not been the case. There has yet to be a peacekeeping mission or intervention that has been solely based on the need to protect children that are used as soldiers. Some would argue that this would be a very narrow viewpoint to take with respect to justification for the creation of a peacekeeping mission; however, I would suggest that 158

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protection of children from one of the “six grave violations” should be of the highest priority for any decision to protect a population. The most striking example of the need for such preventive missions is the case of the Lord’s Resistance Army in Northern Uganda, where there had never been a peacekeeping mission mandated for that conflict despite the widespread use of child soldiers. Other such examples to illustrate this point can be found in the conflicts of Sierra Leone, Liberia and the Democratic Republic of the Congo, where peacekeeping missions did exist but the rationale for such missions was not to protect or intervene to halt the use of child soldiers. Intervening in conflicts where children are soldiers is fraught with multiple problems. Do we put our troops at risk of encountering child soldiers?35 How does this affect the morale of the troops we send into such conflict zones when confronted with the possibilities of shooting child soldiers to save their own lives or the lives of others? The lack of preparation and training related to how to interact with child soldiers further complicates this problem. British forces operating in West Africa in 2001 faced deep problems of clinical depression and post-traumatic stress disorder among individual soldiers who had faced child soldiers.36 Academics have debated whether or not child soldiers are to be thought of as “morally-innocent soldiers,”37 in which instance peacekeepers should go over and above the normal protocol to protect children, which includes not using deadly force when being attacked by a child soldier. Troops now face real and serious threats from opponents whom they generally would prefer not to harm.38 Forces must now seek new tactics and strategies to deal with the child soldier problem. The key is to recognize the duality that is at the very nature of the problem: real threats offered by children operating in a place they should not be, the realm of war.39 The responsibility to react must also entail compliance with the monitoring and reporting mechanisms laid out in UN Security Council Resolution 1612 (2005). In this instance, peacekeepers, non-governmental organizations, UN organizations, diplomats and government bodies must assist with the monitoring and reporting of the six grave violations as outlined in the SC Res 1612. These six grave violations have been determined by the Security Council as heinous breaches of international law.40 The Security Council must then ensure that the information provided to the Working Group on Children in Armed Conflict, established by the UN SC Res 1612, results in the punishment, under international legal mechanisms such as the International Criminal Court, of those who are using child soldiers in armed groups. The International Criminal Court (ICC) has the mandate to prosecute those who recruit and utilize child soldiers. Thomas Lubanga is the first person to go on trial at the ICC and is charged with recruiting and using child soldiers in the Democratic Republic of the Congo.41 Lubanga was president of the Union of Congolese Patriots, a militia group in the northeastern DRC, a group charged with recruiting and forcibly abducting children as soldiers, but also committing torture, rape and massacres of children. However, the most recent developments in this case indicate that Lubanga will be freed due to irregularities with the trial. On 15 July 2010, Trial Chamber 1 ordered that Lubanga be released due to the stay of proceedings against him, which was as a result of the prosecutor’s failure to disclose exculpatory evidence.42 The judges had ordered that the prosecution should reveal the identities of three intermediaries to the defence counsel. However, the prosecution argues that doing so would compromise the security of the intermediaries. The Lubanga case presents a difficulty in terms of the pursuit of international justice, in particular as a deterrent for those who use child soldiers in the midst of ongoing conflict. Should Lubanga be freed, the international ramifications for the efforts to halt the use of child soldiers globally will be deeply impacted in a negative manner, and the local communities will only confirm their suspicion of the inability of the international criminal court.43 159

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In 2007, the Special Court for Sierra Leone handed down the first-ever convictions by an international criminal tribunal for the recruitment and use of child soldiers, sentencing Alex Tamba Brima to 45 years’ imprisonment. The Special Court for Sierra Leone is also the first international tribunal to indict a Head of State, Charles Taylor, for, amongst other charges, war crimes that include the use of child soldiers. The ICC has issued an arrest warrant for Joseph Kony, leader of the Lord’s Resistance Army, originally from Northern Uganda, but as of the time of writing, Kony is still free and continues to recruit and abduct children in the DRC.44

The responsibility to rebuild In addition to the responsibility to prevent and to react, R2P also implies the responsibility to rebuild. After a conflict is over, there is a duty to rebuild the state, both physically and socially. This commitment must be genuine and must contribute to building a durable peace, promoting good governance and sustaining development.45 If the use of children as soldiers is directly linked to the lack of development, the breakdown of peace and security and the absence of good governance, then it is essential that the responsibility to rebuild is taken seriously if we want to ensure children are not used as soldiers. Once a conflict comes to an end, either through peace agreements or as a result of military victory, the war-torn country needs to address the issue of surplus troops who may be discharged from the military and rebel forces, which for security purposes are being disbanded.46 Following the introduction of disarmament, demobilization and rehabilitation (DDR) programmes, it has been a continual challenge to ensure that effective programmes, institutions and measures that pertain to children are created. The specific needs of children have dictated that the DDR processing of children must be distinct and separate from that aimed at adults. Peter Singer notes that disarmament and demobilization programmes for children are generally successful only outside crisis situations.47 This means that attempts at DDR while conflict is ongoing are difficult at best. The DRC is a case in point. The effective monitoring of children that return to armed groups after DDR processes, or who re-enter DDR processes multiple times, and the ability to react to such problems is a failure.48 Levels of re-recruitment of children will continue to rise if the children are sent back to communities that do not have stability, economic means of survival or security.49 Successful reintegration and rehabilitation of former child soldiers must also be accompanied by community sensitization, which includes the acceptance of the children back into their families and communities. This is difficult to achieve in an increasingly short-term-centred funding world. The same capitalist, weak/privatized government that led to the creation of grey/black economies that in turn created violence, social decay and child soldiers still remains. The use of child soldiers is also intricately linked to the exploitation of resources in many conflicts around the world. Children are used by armed groups, who use the funds to maintain their war efforts, to mine diamonds, gold, coltan and other resources. Such children often fulfil the double duty of fighting for the armed groups as well. It is therefore essential to address issues of corruption on the one hand and the building of good governance on the other hand, both on a local and global scale. The responsibility to protect children from their use and abuse by armed groups essentially has deep roots in the global economic order. Whether in the DRC, Sierra Leone, the Ivory Coast, Columbia or Liberia, the uses of children by armed groups and for the purpose of resource exploitation have coincided. Such resources have been bought and extracted by numerous Western governments and corporations who in turn pass on the products to consumers worldwide. 160

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Political will In an ideal world, the international community would intervene to assist those most in need and to protect civilians. However, realist theory suggests that states only intervene when it is in their interest to do so. It is therefore necessary to shift the political will to intervene on behalf of the protection of children in a positive direction. How do we convince the international community that intervening to protect innocent civilians is in their interest? How do we convince the international community to intervene to protect children from armed groups? On this front, the case of the child soldier and the right to protect can be made quite convincingly. Protecting children from being used by armed groups has many immediate and longterm benefits on a global scale. “If in conflicts such as those in Sierra Leone, where 50% of the fighting forces were children, ensuring that children are not used may seriously reduce the ‘manpower’ and hence the longevity of such a conflict.”50 For many smaller rebel groups, the gains from using children in conflicts amount to clear multiplication of their fighting members. The LRA, which used children to expand its fighting force from 200 core members to an army of 14,000 soldiers, is the classic example.51 In the DRC, rebel groups such as the Congrés National pour la Defense de les Peuples have refused to enter into official demobilization processes because they do not wish to relinquish the child soldiers who are under their control, as this would seriously diminish their military power and access to mineral wealth.52 As noted earlier, there are many long-term consequences for children and communities that must cope with former child soldiers. It is in the economic interest of states to ensure that their youth are well educated, healthy and happy. If we wait to intervene after mass numbers of children have been recruited, used and then re-recruited, we must then put effort and money into the rehabilitation of such children. In the DRC, only 10 per cent of the total numbers of demobilized soldiers are children, yet at the same time estimates are that 50 per cent of the fighting forces are children.53 This number is of course also indicative of the ongoing conflict in the DRC. In Sierra Leone, the sheer number of former child soldiers overwhelmed the relief efforts. Half a year into the operation, only 30 per cent of the child soldiers in the Revolutionary United Front (RUF) had even been demobilized and disarmed.54 Without proper skills training or counselling these children often became involved in criminal activity.55 In addition, children who are affected by such experiences will be lucky to survive and become productive, healthy adults eventually. There is an urgent need to ensure that the children who do survive have the opportunities, skills and coping mechanisms to overcome the cycle of violence that must be halted as they too become leaders and parents.

Conclusion Children need to be placed at the top of the peace and security agenda. If children are at the top of the pyramid of priorities, all of the factors that contribute to the use of children in armed conflict would then have to be addressed. Children can be the rallying point for collaboration and action that may lead to key lessons that can be transferred to other problems that emerge on the peace and security agenda. Instead of relegating children to the bottom of the agenda or as an “add-on” item, we need to convince policy makers, international organizations and governments that the protection of children in armed conflict is critical to the overall success of any peace and security efforts. Ignoring children as political actors, or assigning a limited set of roles to children, serves not only to regenerate a flawed scholarly notion of security, but may also have practical negative political consequences; for example, reducing the chance of sustainable post-conflict development.56 Framing the R2P doctrine in terms of our responsibility to prevent, react to and 161

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rebuild with respect to child soldiers is a debate that needs further reflection. As previously discussed, it is clearly more beneficial to attempt to prevent the use of child soldiers than it is to react to or rebuild a society after the use of child soldiers has begun. This applies to the benefit not only of societies as a whole, but to individual children, families and communities. In addition, the consequences of reacting to a conflict that has employed children as soldiers become more complicated for the deployment of peacekeeping missions. Peacekeepers do not want to be faced with the dilemma of shooting a child versus protecting their own lives. In the inevitable circumstance that peacekeepers are militarily engaged with child soldiers, the longterm consequences related to post-traumatic stress disorder for the soldiers becomes a difficult problem to address and one we are not addressing adequately. In addition, the use of child soldiers can prevent nations from wishing to contribute to peacekeeping missions that may so desperately require professionally trained soldiers. Efforts must be made to address how the R2P doctrine can be operationalized to further assist and protect children from being used as soldiers. Such efforts may include the need for more specialized training of troops at the national level as well as at the pre-deployment for peacekeeping mission levels.57 The responsibility to rebuild a state post-conflict will inevitably be affected by the extent to which children have been used as soldiers. As discussed, successful reintegration and rehabilitation of former child soldiers is difficult to achieve in a short-term-centred funding world. The responsibility to rebuild must also accompany concerted efforts to protect children from their use by armed groups to gain war profits. It is at this point that the R2P doctrine comes full circle as our failure to protect is ultimately also connected to our greed and desire for resources, which has contributed to failing states and the increase in corrupt business practices that benefit the few but leave millions in poverty. We might learn, for example, whether the media, political authorities and other actors frame children as “other,” compared to “our” children.58 Is it easier for us not to intervene to protect children from the developing world if we view these children as distinct from, as opposed to similar to, our children from the West. Child soldiers by their very existence bring into question the principles of the R2P doctrine in terms of the ability to operationalize the concepts effectively to protect children. However, according to the Stockholm International Peace Research Institute, 60 multilateral peace operations, involving a record number of nearly 190,000 military and civilian personnel, were deployed worldwide in 2008.59 This suggests that the international appetite for involvement in international peace operations has not waned. At the same time, it is critical that such operations understand the dynamics of children in modern conflict, are trained adequately, and recognize the importance of children as agents of peace. In Sierra Leone, following the conflict, young people recognized that they were at the centre of the war, and thus now insist that they be placed at the centre of peacemaking and reconstruction.60

Notes 1 Report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Ottawa: International Development Research Centre, 2001: 8. 2 Coalition to Stop the Use of Child Soldiers, Global Report, 2008, http://www.childsoldiersglobalre port.org/content/facts-and-figures-child-soldiers (accessed 20 June 2010). 3 Radhika Coomaraswamy, Statement by the Special Representative of the Secretary-General on Children and Armed Conflict, 2010, www.un.org/children/conflict/english/theoffice.html (accessed 3 April 2011). 4 Coaltion to Stop the Use of Child Soldiers, Global Report. 5 United Nations Treaty Collection, http://treaties.un.org/pages/viewdetails/aspx?src=TREATY&mtdsg_ no=IV-11& chapter=4&lang=en (accessed 10 April 2011).

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R2P and child soldiers 6 M. Collins, “Gender Equality, Child Soldiers and Humanitarian Law are Axed from Foreign Policy Language,” Embassy Magazine, http://embassymag.ca/page/view/foreignpolicy-7-29-2009 (accessed 2 September 2010). 7 Ibid. 8 Coaltion to Stop the Use of Child Soldiers, “The Paris Principles,” http://www.child-soldiers.org/ childsoldiers/Paris_Principles_March_2007.pdf (accessed 13 July 2010). 9 R. Coomaraswamy, Statement by the Special Representative of the Secretary-General on Children and Armed Conflict, www.un.org/children/conflict/english/theoffice.html (accessed 3 April 2011). 10 Coalition to Stop the Use of Child Soldiers, “Facts and Figures on Child Soldiers,” http://www. childsoldiersglobalreport.org/content/facts-and-figures-child-soldiers (accessed 25 August 2010). 11 See P. W. Singer, Children at War, Berkeley: University of California Press, 2006; Angela McIntyre, Invisible Stakeholders, Pretoria: Institute for Security Studies, 2005; Graça Machel, The Impact of War on Children: A Review of Progress Since the 1996 United Nations Report on the Impact of Armed Conflict on Children, Vancouver: UBC Press, 2001. 12 Interview with Major Patrick Musibi, consultant to Save the Children UK, Halifax, NS, 13 July 2010. 13 S. McKay and D. Mazurana, Where are the Girls? Girls in Fighting Forces in Northern Uganda, Sierra Leone and Mozambique: Their Lives During and After War, Quebec: Rights and Democracy, 2004. 14 Ibid. 15 Ibid. 16 Office of the Special Representative of the Secretary-General on Children and Armed Conflict, “The Six Most Grave Violations,” www.un.org/children/conflict/english/themostgraveviolations.html (accessed 4 February 2011). 17 M. Hellman, A. Holmberg and C. Wagnsson, “The Centrality of Non-traditional Groups for Security in the Globalized Era: The Case of Children,” International Political Sociology, 2010, vol. 4, p. 1. 18 M. Denov, “Girls in Fighting Forces: Moving Beyond Victimhood,” Ottawa: CIDA Report, 2005: p. 9. 19 Hellman, Holmberg and Wagnsson, “The Centrality of Non-traditional Groups for Security in the Globalized Era,” p. 3. 20 Ibid., p. 2. 21 Office of the Special Representative of the Secretary-General on Children and Armed Conflict, “The Six Most Grave Violations,” http://www.un.org/children/conflict/english/theoffice.html (accessed 25 July 2010). 22 Ilene Cohn, “The Protection of Children in Peacemaking and Peacekeeping Processes,” Harvard Human Rights Journal, Spring 1999, vol. 12, p. 1. 23 Vanessa Kent and Mark Malan, “The African Standby Force: Progress and Prospects,” African Security Review, vol. 12, no. 3, 2003, p. 1. 24 International Commission on Intervention and State Sovereignty, The Responsibility to Protect, 2001, p. 19. 25 Singer, Children at War, p. 209. 26 Quoted in McIntyre, Invisible Stakeholders, p. 24. 27 Singer, Children at War, p. 206. 28 CBC News, “Thai Army Crackdown to Continue: Government Rejects UN-mediated Talks with Red Shirt Protestors,” www.cbc.ca/world/story/2010/05/16/thailand-protesters.html (accessed 17 May 2010). 29 M. Wessells, “Supporting the Mental Health and Psychosocial Well-being of Former Child Soldiers,” Journal of American Academy of Child and Adolescent Psychiatry, vol. 48, no. 6, 2009, p. 587. 30 C. Carpenter, War’s Impact on Children Born of Rape and Sexual Exploitation: Physical, Economic and Psychosocial Dimensions, http://people.umass.edu/charli/childrenbornofwar/Carpenter-WP.pdf, 2004 (accessed 5 February 2011). 31 Wessells, “Supporting the Mental Health and Psychosocial Well-being of Former Child Soldiers.” 32 Singer, Children at War, p. 206. 33 Ibid., p. 94. 34 International Commission on Intervention and State Sovereignty, The Responsibility to Protect, p. 29. 35 R. Dallaire, They Fight Like Soldiers, They Die Like Children, The Global Quest to End the Use of Child Soldiers, Toronto: Random House Canada, 2010. 36 Singer, Children at War, p. 170. 37 J. Pattison, “Humanitarian Intervention, the Responsibility to Protect and jus in bello,” Global Responsibility to Protect, vol. 1, 2009, p. 376. 38 Singer, Children at War, p. 166.

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39 Ibid., p. 171. 40 Office of the Special Representative of the Secretary-General on Children and Armed Conflict, p. 4. 41 BBC, “First ICC Accused – DRCongo’s Lubanga to be Freed,” http://www.bbc.co.uk/news/worldafrica-10650399 (accessed 20 July 2010). 42 Human Rights Watch, “Recent Developments in the ICC Trial of Thomas Lubanga,” www.hrw.org/ en/news/2010/07/16/status-international-criminal-court-trial-thomas-lubanga, 17 July 2010 (accessed 5 September 2010). 43 Interviews held with UNICEF, MONUSCO Child Protection Officers, FARDC Officers and local NGOS in July 2010, Goma and Bukavu, DRC. 44 Office of the Secretary-General for Children in Armed Conflict, http://www.un.org/children/conflict/ english/theoffice.html, op cit. (accessed 12 December 2009). 45 Report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect, p. 39. 46 A. Knight, “Linking DDR and SSR in Post-conflict Peace-building in Africa: An Overview,” African Journal of Political Science and International Relations, vol. 4, no. 1, 2010, p. 31. 47 Singer, Children at War, p. 189. 48 S. Whitman and T. Zayed, “Field Report on the Democratic Republic of Congo: Child Soldiers and Security Forces,” July 2010, http://childsoldiersinitiative.org/pdfs/CSI_DRC_final_report_summer2010. pdf (accessed 10 February 2012). 49 Singer, Children at War, pp. 209–10. 50 McIntyre, Invisible Stakeholders, pp. 23–26. 51 Singer, Children at War, p. 95. 52 Interview in Bukavu, DRC with a Congolese National Army Officer, July 2010. 53 UNICEF DRC interview, July 2010. 54 Singer, Children at War, p. 186. 55 Ibid. 56 Hellman, Holmberg and Wagnsson, “The Centrality of Non-traditional Groups for Security in the Globalized Era,” p. 11. 57 See Dallaire, They Fight Like Soldiers. 58 Hellman, Holmberg and Wagnsson, “The Centrality of Non-traditional Groups for Security in the Globalized Era,” p. 11. 59 Kirsten Soder, “Multilateral Peace Operations in 2008,” Sipri Yearbook 2009, Oxford: Oxford University Press, p. 117. 60 McIntyre, Invisible Stakeholders, p. 25.

Bibliography Beebe, Shannon and Kaldor, Mary (2010) The Ultimate Weapon is No Weapon: Human Security and the New Rules of War and Peace, New York: Publicaffairs. Berdal, Mats (2009) Building Peace After War, London: the International Institute for Strategic Studies. Carpenter, Charli (2004) “War’s Impact on Children Born of Rape and Sexual Exploitation: Physical, Economic and Psychosocial Dimensions,” Coaltion to Stop the Use of Child Soldiers, http://www.childsoldiersglobalreport.org/content/facts-and-figures-child-soldiers (accessed 19 January 2012). Cohn, Ilene (1999) “The Protection of Children in Peacemaking and Peacekeeping Processes,” Harvard Human Rights Journal, Vol. 12, Spring, pp. 130–93. Collins, Michelle (2009) “Gender Equality, Child Soldiers and Humanitarian Law are Axed from Foreign Policy Language,” Embassy Magazine, http://embassymag.ca/page/view/foreignpolicy-7-29-2009 (accessed 2 September 2010). Coulter, Chris (2009) Bush Wives and Girl Soldiers: Women’s Lives Through War and Peace in Sierra Leone, New York: Cornell University Press. Dallaire, Roméo (2010) They Fight Like Soldiers, They Die Like Children, Toronto: Random House. Denov, Myriam (2005) “Girls in Fighting Forces: Moving Beyond Victimhood,” Ottawa: CIDA Report. Dunson, Donald H. (2008) Child, Victim, Soldier, New York: Orbis Books. Gambino, Anthony W. (2009) “The Responsibility to Protect Civilians in the Democratic Republic of the Congo,” Conflict and Security, Vol. 6, No. 2, Summer/Fall.

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R2P and child soldiers Hellman, Maria, Holmberg, Arita and Wagnsson, Charlotte (2010) “The Centrality of Non-traditional Groups for Security in the Globalized Era: The Case of Children,” International Political Sociology, Vol. 4., No. 1, pp. 1–14. Kent, Vanessa and Malan, Mark (2003) “The African Standby Force: Progress and Prospects,” African Security Review, Vol. 12, No. 3, http://www.issafrica.org/pubs/asr/12No3/Content.html (accessed 10 February 2012). Knight, Andy W. (2010) “Linking DDR and SSR in Post-conflict Peace-building in Africa: An Overview,” African Journal of Political Science and International Relations, Vol. 4, No. 1, http://www.academicjournals.org/ ajpsir (accessed 19 January 2012). Machel, Graca (2001) The Impact of War on Children: A Review of Progress Since the 1996 United Nations Report on the Impact of Armed Conflict on Children, Vancouver: UBC Press. McIntyre, Angela (ed.) (2005) Invisible Stakeholders: Children and War in Africa, Pretoria: Institute for Security Studies. McKay, Susan and Mazurana, Dyan (2004) Where are the Girls? Girls in Fighting Forces in Northern Uganda, Sierra Leone and Mozambique: Their Lives During and After War, Quebec: Rights and Democracy. Office of the Special Representative of the Secretary General on Children and Armed Conflict (2009) “The Six Grave Violations against Children in Armed Conflict: Legal Foundations,” Working Paper No. 1, http://www.un.org/children/conflict/english/theoffice.html (accessed 12 December 2009). Pattison, James (2009) “Humanitarian Intervention, the Responsibility to Protect and jus in bello,” Global Responsibility to Protect, Vol. 1, pp. 364–91. Singer, Peter W. (2006) Children at War, Berkeley: University of California Press. Soder, Kirsten (2009) “Multilateral Peace Operations in 2008,” Sipri Yearbook 2009, Oxford: Oxford Univesity Press. Vaha, Maria Emilia (2009) “Victims or Perpetrators? Adolescent Child Soldiers and the Vacuum of Responsibility,” paper presented at the International Studies Association Annual Convention, New York, 15–18 February. Wessells, Michael (2009) “Supporting the Mental Health and Psychosocial Well-being of Former Child Soldiers,” Journal of American Academy of Child and Adolescent Psychiatry, Vol. 48, No. 6, pp. 587–90. Whitman, Shelly and Zayed, Tanya (2010) “Child Soldiers, Security Forces and Child Protection Training in the DRC,” report prepared for the IDRC and the Child Soldiers Initiative, http://childsoldiersinitiative.org/pdfs/CSI_DRC_final_report_summer2010.pdf (accessed 10 February 2012).

News reports BBC (2010) “First ICC Accused – DRCongo’s Lubanga – to be Freed,” 15 July, http://www.bbc.co.uk/ news/world-africa-10650399 (accessed 20 July 2010). CBC News (2010) “Thai Army Crackdown to Continue: Government Rejects UN-mediated Talks with Red Shirt Protestors,” 17 May, www.cbc.ca/worldstory/2010/05/16/thailand-protestors.html (accessed 17 May 2010). Human Rights Watch (2010) “Recent Developments in the ICC Trial of Thomas Lubanga,” 17 July, http://www.hrw.org/en/news/2010/07/16/status-international-criminal-court-trial-thomas-lubanga (accessed 4 September 2010).

Interviews Interview with FARDC commander, 23 July 2010, Bukavu, DRC. Interview with UNICEF DRC representative, 21 July 2010, Goma, DRC. Interview with MONUSCO Child Protection Officer, 21 July 2010, Goma, DRC.

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13 SECURING CONSISTENCY FOR CONSISTENT SECURITY Gender and the Responsibility to Protect Jennifer Bond and Laurel Sherret*

Traditional thinking around conflict and protection is based on many binaries: there are heroes and villains; combatants and civilians; those who save and those who need saving. In this model, victims are passive prey – being either rescued or attacked, but never exercising any autonomy over their own lives. When socially constructed dimensions of gender are graphed onto these perspectives, the role of victim is invariably female, those of both aggressors and saviours invariably male. Although there has been recent progress in the deconstruction of these roles, advancements have been slow and are far from secure. Caution must thus be exercised: while the evolving Responsibility to Protect framework holds the potential to improve human security through progressive understandings of international obligations and commitments, it also holds the potential to perpetuate a regressive, binary approach to protection. This chapter asks the reader to move beyond traditional ideas surrounding conflict and protection and to imagine a more inclusive notion of security – one that is premised upon the actual capacities, needs, and contributions of individuals, and one in which women and girls are viewed not only as victims, but as active agents capable of contributing to the attainment of lasting peace. It is about ensuring that understandings about the social constructions of gender – and all of the research, experience, and expertise relating to how these constructions manifest themselves in times of conflict – are not continually excluded from discussions about the Responsibility to Protect. At its core, this chapter is about encouraging a new framework for protection that is consistent with existing knowledge and commitments about the actual dynamics of protection such that its potential to afford real security to the world’s citizens is maximised. It is important to note at the outset what this chapter will not do. In this brief work we will not offer an assessment of either the legitimacy or legality of the Responsibility to Protect,1 nor will we grapple with normative concerns relating to the ability (or inability) of international law and institutions to be responsive to feminist critiques.2 We will also not delve deeply into the

* A version of this chapter also appears as: Jennifer Bond and Laurel Sherret, ‘Mapping Gender and the Responsibility to Protect: Seeking Intersections, Finding Parallels’, Global Responsibility to Protect, Vol. 4, issue 2, pp. 133–153 (Leiden/Boston, Martinus Nijhoff Publishers, 2012).

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abundance of evidence establishing that experiences of conflict are affected by gender. Rather, we content ourselves with using the following pages to demonstrate that while recent discourse surrounding the Responsibility to Protect suggests some awareness that conflict affects men and women differently, there remains a significant disconnect between the development of this framework and the ever-growing body of work on the gendered nature of peace and security issues. Our identification of this ongoing chasm is accompanied by two simple observations: first, that this renders the Responsibility to Protect inconsistent with other international commitments and priorities; and second, that incorporation of the links between gender and conflict will improve the ability of the Responsibility to Protect to afford true protection.

The Responsibility to Protect The first expansive articulation of the Responsibility to Protect is found in the 2001 work of the International Commission on Intervention and State Sovereignty (ICISS).3 The ICISS report attempted to delineate the responsibilities of both individual states and the international community in regard to the protection of civilian populations and provided an alternative perspective on state sovereignty in light of the human tragedies that had plagued the twentieth century. Generated significant international response. The ICISS report was followed by reports from the United Nations (UN) Secretary-General’s High—level Panel on Threats, Challenges and Change4 and then UN Secretary-General Annan’s own five-year progress report.5 Both documents endorsed the emergence of the Responsibility to Protect. In 2005, leaders in attendance at the World Summit explicitly affirmed that individual states have a responsibility to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity.6 They further stipulated that the international community, through the UN, has a responsibility to help protect populations from these crimes where national authorities “manifestly fail” in the task of protection, and indicated willingness to take collective action in accordance with the UN Charter in such circumstances.7 Since its endorsement at the World Summit, there have been various efforts to embed the Responsibility to Protect as a norm that guides both policy and institutional development within the UN system. In 2008, Secretary-General Ban Ki-moon announced the appointment of Edward Luck as a Special Adviser dealing with the Responsibility to Protect,8 and in 2009 Secretary-General Ban issued a detailed report outlining strategies for implementation.9 Further, while the contours of the actual framework remain divisive, and agreement on operationalisation has not yet been reached, recent debates in the UN General Assembly indicate a growing consensus on foundational principles.10 That body adopted the Summit Document formulation of the Responsibility to Protect in its Resolution 60/1. The Security Council has also endorsed this articulation, first in Resolution 1674 and most recently in Resolution 1894. The evolving norm has featured in the semi-annual UN debates on the protection of civilians11 and has helped shape the development of the UN approach to early warning and assessment.12

Gender and security13 The development of the Responsibility to Protect coincides with shifts in other elements of the international response to humanitarian crises, and the first decade of the twenty-first century saw discourse on the gendered dimensions of peace and security gain traction at both national and international levels. Previously, the international women’s movement had made considerable strides in advancing claims for gender equality in a general sense,14 but attention to the experiences of women and girls in conflict – both with regard to the different ways they 167

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are affected by war and the ways they can, and do, contribute to building more peaceful and stable societies – had remained essentially obscured.15 The Fourth World Conference on Women, held in 1995, evidenced a groundswell of informal organisation by NGOs working on gender equality and women’s rights. Their advocacy contributed to significant gains in previously neglected areas and was eventually reflected in the conference’s outcome document, the “Beijing Platform for Action” (BPfA). The BPfA outlined a number of “strategic objectives,” as well as actions to be taken at local, national, and international levels,16 and “Women and Armed Conflict” was identified as one of 12 critical areas of concern. Another outcome of the conference was a commitment to the adoption of gender mainstreaming17 as a major global strategy for all UN programmes and policies. In 1998, a network of various NGOs working on women, peace, and security issues began to organize around implementation of the BPfA.18 Dissatisfied with the failures in gender mainstreaming and the lack of attention paid to women in the peace and security realm, the NGO Working Group on Women, Peace and Security officially formed in May 2000 with the goal of securing a Security Council resolution on the issue.19 They achieved this result in October 2000, with the passage of resolution 1325 (SCR 1325). SCR 1325 remains the most authoritative and comprehensive articulation of the commitments needed from international, national, and local authorities to appropriately recognize the gendered dimensions of conflict, including its prevention and aftermath. The resolution was a watershed in that it reflected high-level recognition that in the context of armed conflict, women are more than simply victims in need of protection.20 SCR 1325 addresses the need for: enhancement of women’s roles as decision makers and as political agents; gender mainstreaming in all UN programmes and processes related to conflict, peace, and security; gender training in peacekeeping operations; protection of women and girls in conflict; promotion of respect for the rights of women and girls; and an end to impunity for violations of these rights. Recently, Security Council resolutions 1820 (2008), 1888 (2009), 1889 (2009), and 1960 (2010) have reaffirmed and addressed in more detail particular aspects of the broader vision captured by SCR 1325. SCR 1820 deals specifically with sexual violence and its links with international peace and security, firmly placing this form of violence within the purview of the Security Council. SCRs 1888 and 1960 also focus primarily on sexual violence, and take further steps towards introducing accountability, monitoring, and enforcement mechanisms for the issues highlighted in SCR 1820. They also reiterate the need to increase women’s participation in decisionmaking positions, peacekeeping roles, and post-conflict measures. Finally, SCR 1889 explicitly reaffirms the inclusive and empowerment-focused approaches evident in SCR 1325 and calls for specific measures to ensure that broad commitments relating to women, peace, and security are realised. The Security Council’s repeated recognition of the gendered dimensions of conflict has not occurred in isolation. SCR 1325 is both a response to pressure from outside the UN and a continuing source for progress. Passage of the resolution is widely seen as evidence of an increased consensus around the need to bring women into the peace and security discourse and it has galvanised actors at all levels. The resolution was endorsed in the World Summit Outcome document,21 and has prompted gender awareness education sessions for UN agencies and the Security Council,22 where it is the subject of annual open debates.23 It has also encouraged states to create their own National Action Plans for implementation24 and has been translated into over 100 languages for use as an advocacy tool around the world.25 In addition, there are now hundreds of organisations devoted to work on women, peace, and securityrelated issues;26 over 100,000 website pages discussing the topic27 – including those attached to major security organisations such as the North Atlantic Treaty Organization (NATO) and the 168

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African Union,28 and governments of influential states such as the United States, the United Kingdom, and Canada29 – and hundreds of related academic and policy contributions.30

Early “gender blindness” identified Work surrounding both the Responsibility to Protect and women, peace, and security is founded on the need to reconsider international approaches to conflict, peacebuilding, and human security. While the Responsibility to Protect has involved a retooling of notions of state sovereignty to recognise responsibilities owed to civilian populations, the discourse surrounding women, peace, and security calls for states and other international actors to reconsider the civilian population as a disaggregated, and differentially affected, whole. Importantly, both agendas focus on exploring new and more effective strategies for realising true protection for individuals affected by conflict and for empowering them to contribute to its prevention. Unfortunately, the synergies between these evolving bodies of work were not initially explored, and early development of the Responsibility to Protect was devoid of any real acknowledgement that protection needs and contributions are highly gendered. In earlier work examining the role of the ICISS in the development of the Responsibility to Protect framework, we detailed the lack of gender expertise amongst ICISS commissioners; the absence of women’s involvement on the advisory board, the commission itself, and at regional roundtables; the missing references to the potentially gendered aspects of intervention in the publicly available ICISS debates; and the fact that while the database of references used to inform the ICISS report contains over 2,000 sources, only seven include comment on gender and four the situation of women. We also noted that the final ICISS report itself contains very few references to women or gender (three in total) and does not reflect consideration of the unique needs and contributions of women in conflict and post-conflict environments. We thus concluded that while issues such as early warning systems, sanctions, the use and abuse of violence, the protection of minorities, security sector reform, and post-conflict justice were all being examined by both those working on women, peace, and security issues and those developing the Responsibility to Protect, there was scant evidence indicating that the gender-based aspects of these issues were being incorporated into development of the latter framework.31 It is worth noting that there has also been an absence of academic work on the links between the Responsibility to Protect and the women, peace, and security agenda.32 Recent contributions by Hilary Charlesworth33 and Eli Stamnes34 are notable exceptions, and both of these authors also remark on the surprising lack of study in this area.35

Gender considerations in current discourse Recent discourse surrounding the Responsibility to Protect reflects an increased awareness of some of the differential ways conflict can, and does, impact upon boys, girls, men, and women, and thus current formulations of the norm can no longer be said to be entirely “gender blind.” In particular, the importance of addressing the increasing prevalence of sexual violence is now being recognised.36 Despite this, there remains a troubling gap: while discourse surrounding the Responsibility to Protect may indicate acknowledgement of the particular vulnerabilities women and girls face with regard to the sexual violence that frequently accompanies war, there is no recognition of the multitude of other ways they are uniquely impacted by conflict, nor of the many valuable contributions women can make to conflict resolution and peacebuilding. This narrow preoccupation with the role of women as victims of sexual violence ignores the international community’s own commitments to the full and active engagement of women in conflict 169

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resolution – commitments that are most completely reflected in SCR 1325, and strongly reiterated in SCR 1889. It also fails to reflect the growing body of research detailing both the many differential impacts of conflict and the importance of empowering women and engaging them as active participants in the establishment and maintenance of international peace and security.37 In short, there continues to be a significant inconsistency between the priorities, experiences, and commitments relating to women, peace, and security and the evolving Responsibility to Protect framework. In the section that follows, we examine several of the primary sites in which the Responsibility to Protect is currently being explored, debated, and delineated by the international community: the Secretary-General’s report on implementation of the Responsibility to Protect (2009) and accompanying debates; the Secretary-General’s report on early warning, assessment, and the Responsibility to Protect (2010) and accompanying debates; and public information provided by major international NGOs working on the Responsibility to Protect.

The Secretary-General’s report on implementation of the Responsibility to Protect The Secretary-General’s report is the most complete formulation of the Responsibility to Protect since the 2005 World Summit, and was positively received by two-thirds of states in attendance at the General Assembly’s subsequent debate on the topic.38 The report makes the following observations with respect to sexual violence:  states that protect the rights of women are more likely to be stable and to avoid widespread and systematic sexual violence than those that do not;39  the rights of the vulnerable and disenfranchised must be subject to particular protection and steps should thus be taken to prevent sexual and gender-based violence, to prosecute offenders, and to implement gender-responsive justice and security-sector reform measures;40  training can play an important role in prevention, and some successful training programmes (including those in Colombia and Rwanda) included components devoted to gender issues and gender-based violence;41  women’s NGOs can play a critical role in supporting survivors of systematic sexual violence and deserve full support;42  the Security Council has recognised that rape and sexual violence can constitute war crimes, crimes against humanity, or constitutive acts with respect to genocide, and systematic sexual violence can be as destructive as other weapons of war;43 and  targeted sanctions in cases of sexual violence should be considered in accordance with SCR 1820.44 Reference to the Security Council’s recent acknowledgements that widespread rape and other forms of sexual violence are destructive techniques of war, which may require international intervention, is particularly noteworthy. Recognising that these forms of violence may constitute war crimes, crimes against humanity, or a constitutive act of genocide is consistent with international law, and is reflected in the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.45 The Rome Statute of the International Criminal Court codifies this principle, and rape, sexual slavery, enforced prostitution and other forms of sexual violence are enumerated as forms of these crimes in a treaty that has been ratified by over 110 countries.46 Although this perspective is widely accepted in international law generally, the importance of endorsing it in this context should not be understated: by recognising in explicit language that sexual violence may constitute a war crime, crime against humanity, or constitutive act with respect to genocide, the 170

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Secretary-General is also acknowledging that states have a Responsibility to Protect their populations from these atrocities, and that where an individual state fails to do so, the international community has a responsibility to take remedial steps.47 This addresses one of the major weaknesses in early formulations of the Responsibility to Protect – which recognised rape and sexual violence as cause for protection only where they were used as a means of ethnic cleansing48 – and is to be commended because it recognises that sexual and gender-based violence is as worthy of international attention as other forms of violence.49 Also commendable is general recognition of the importance of preventing sexual and gender-based violence, supporting women’s organisations that assist survivors of systematic sexual violence, and prosecuting offenders. The many other aspects of the women, peace, and security agenda are largely absent from the Secretary-General’s report, however, and the 33-page document is silent on all other gender issues but for two additional references to women – one to acknowledge that the role of various organisations, including “women’s groups,” in shaping the response to crimes is not well known,50 and a second (in the Annex) noting that grassroots women’s groups are amongst those able to provide timely and sensitive information on evolving conflict situations.

Debates In July 2009, the UN General Assembly discussed the Secretary-General’s report on implementation of the Responsibility to Protect, with interventions from over 90 member states.51 While most of the contributions were focused on whether there was support for the emergence of the framework itself, a very small minority also discussed the disparate impact of the four relevant crimes or acknowledged the particular roles of women’s groups in peace and security initiatives. The interventions of the US, Croatia, and Papua New Guinea constitute the exceptions. The American representative referred to the need for more effective “peacekeeping and peacebuilding, including intensified effort to address sexual and gender-based violence.”52 The Croatian delegate noted the importance of the International Criminal Court in cases of widespread and systematic rape and sexual violence against women and children, as well as the need to “protect the rights of women, children and minorities through the exercise of good offices and public and State diplomacy.”53 The delegate from Papua New Guinea, meanwhile, cautioned that for implementation of the Responsibility to Protect to be effective, the lack of recognition and respect for local or indigenous knowledge in the UN system would need to be overcome. She also referred to women’s groups as “potential providers of timely and sensitive information on evolving conflict situations” as part of an effort to highlight some of the shortcomings in previous pre-conflict assessments.54

The Secretary-General’s report on early warning, assessment, and the Responsibility to Protect In July 2010, the Secretary-General released a report dealing exclusively with early warning and assessment,55 noting that use of peaceful and preventive measures forms a critical part of the international Responsibility to Protect.56 Like previous iterations of the Responsibility to Protect, the report fails to consider either the importance of gathering information from both men and women or the importance of gathering information about both men and women.57 This absence ignores work aimed at identifying gendered indicators and explaining their importance to effective early warning systems: Looking at conflict through a gender lens is not optional or an add-on: it is essential in order to understand conflict dynamics, to detect conflict risks, and to design and 171

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implement conflict-sensitive development interventions … early warning/conflict monitoring indicators should always be based on a conflict analysis, … and gendered indicators should … reflect conflict causes, as well as capacities for peace.58 The Secretary-General’s early warning report also misses a critical opportunity to integrate the gender and conflict expertise contained within his own organisation. While his report acknowledges the “closely related responsibilities” of the Special Adviser on the Prevention of Genocide and the Special Adviser dealing with the Responsibility to Protect,59 it does not mention the obvious additional links to the mandates of his Special Adviser on Gender Issues and the Advancement of Women (whose portfolio includes women, peace, and security initiatives and the implementation of SCR 1325), his Special Representative for Children and Armed Conflict, or his newly appointed Special Representative on Sexual Violence in Conflict. His calls to “save resources, eliminate redundancy and maximize synergies and effectiveness”60 through the fostering of close working relationships, the use of common methodologies, and the creation of a joint office61 thus exclude completely those working on women, peace, and security initiatives.

Debates The Secretary-General’s Report on Early Warning was debated in July 2010, with contributions by academics, the Special Advisers dealing with Prevention of Genocide and the Responsibility to Protect, 42 member states, and two regional organisations.62 At the time of writing, the statements of only half the member states are available, but of those not one refers to any aspect of the gendered nature of early warning. Neither do statements by either of the SecretaryGeneral’s two advisers. Only statements from Andrea Bertoli and Muna Ndulo, both academics, refer at all to gender issues: the former by discussing efforts at preventing genocide in the International Conference on the Great Lakes Region,63 and the latter by recognising that a problem with conflict analysis, including early warning, has been the traditional exclusion of women’s rights and/or gender perspectives. Ndulo went on to state that when opportunities for women to … fully participate in conflict prevention and post-conflict reconstruction are limited … early warning systems risk failing to adequately predict or prevent conflict. Moreover gender-based indicators can provide a more complete understanding of the causes of conflict, and as result help develop more appropriate responses to mitigating or preventing it.64

Public information provided by NGOs working on the Responsibility to Protect Following endorsement of the Responsibility to Protect at the 2005 World Summit, the NGO community mobilised to ensure that work in the area continued. The result was the creation of two umbrella organisations: the Global Centre for the Responsibility to Protect (GCR2P) and the International Coalition for the Responsibility to Protect (ICRtoP). Both are mandated to promote the operationalisation of the Responsibility to Protect through education and advocacy, and both host elaborate websites addressing various aspects of the framework’s development.65 Although the ICRtoP’s online resources acknowledge the need to recognise the differential impacts of conflict66 and include basic information on “women and conflict” as part of details on “related themes,” notably absent from either website are indications that these important NGOs 172

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have prioritised allocation of institutional resources or political capital to the promotion of a gendered view of the Responsibility to Protect framework. It is also noteworthy that while both the GCR2P’s “partner organizations” and the ICRtoP’s “member organizations” reflect a commitment to regional diversity and expertise, none of the GCR2P’s five partners and only one of the ICRtoP’s 23 members is focused specifically on issues relating to women67 and none is focused exclusively on women and conflict.68

Identifying the gaps The foregoing review of the primary sites in which the content of the Responsibility to Protect is being debated and delineated reveals that the gendered impacts of conflict continue to be largely absent from the discourse and, further, that where they are present, they are often deficient because they consider women and girls only in their roles as victims of sexual violence. Our critique of this focus is not intended to minimise the rampant and horrific use of sexual violence during conflict, nor to ignore the gendered impacts of this practice. Although rape and other forms of sexual violence have always accompanied conflict (and are prevalent in all societies to varying degrees), UN sources indicate that this form of aggression is being used as a strategic weapon with increasing frequency and brutality.69 Security Council resolutions 1820, 1888, and 1960 reflect international recognition that this shifting dynamic has heightened the need to protect the women and children who are most frequently (though not exclusively)70 victimised by these acts. It is appropriate, and indeed necessary, that the Responsibility to Protect also reflects this tragic reality. However, while these recent Security Council resolutions focus particular attention on sexual violence, this remains only one aspect of how gender shapes the experience of conflict. It is, for example, well documented that men are more likely than women to be forcibly recruited for combat, to suffer conflict-related death, and to be summarily executed. Meanwhile, women are more likely than men to serve as caregivers for individuals who have been injured or orphaned during conflict; to be ostracised from society as a result of conflict-related injury; to be injured by landmines; to be widowed and deprived of property rights; and to be amongst refugee or internally displaced populations. They are also less likely than men to be able to participate in either public or private decision making; to have access to health care, education, or social services; or to benefit from disarmament, demobilisation, and reintegration programmes.71 Further, it is dangerous and inaccurate to ignore the significant contributions women can make to peacebuilding by focusing exclusively on their actual and potential victimisation. Such an approach minimises the active role women must play if sustainable peace is to be established. Dianne Otto made similar observations after the passage of SCR 1820, noting with concern that the resolution is significantly more restrictive than is SCR 1325: Compared to Resolution 1325, the second resolution is very narrow in its scope and ambitions, focusing purely on addressing the problem of sexual violence that occurs during armed conflict, particularly when it is used as a “tactic of war”, and in post conflict situations. It marks a complete reversal of the Security Council’s earlier recalibration of its gender narrative in Resolution 1325, which emphasised women’s potential to make valuable contributions to conflict resolution and peace-building over their suffering as victims of war. In Resolution 1820, women are again defined primarily by their violability.72 The reality is that SCR 1325 remains the most comprehensive and powerful affirmation of the connections between women, peace, and security. The broad principles it enshrines have 173

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not been disregarded by the international community and were forcefully affirmed with the passage of SCR 1889, which calls explicitly for the implementation of 1325 and reiterates the need for “the full, equal and effective participation of women at all stages of peace processes given their vital role in the prevention and resolution of conflict and peacebuilding.”73 Accordingly, other, more specific instruments, including SCR 1820, must be read in conjunction with SCRs 1325 and 1889, the two more comprehensive resolutions. This joint reading has been adopted by those working on women, peace, and security issues74 and recognised in country-specific resolutions emanating from the UN Security Council itself.75 Such an approach demonstrates that 1820 is not a replacement of 1325 – it is an elaboration of one of its components, just as sexual violence is not the only gendered aspect of conflict that needs to be addressed – it is one of many. As has been discussed above, current discourse surrounding the Responsibility to Protect fails to recognize the relationship between these elements and instead focuses almost exclusively on sexual violence. It is as though those working on the framework’s development are responding to the important concerns reflected in SCR 1820 while neglecting to place these back in the more complete context that is reflected in SCR 1325. The international community itself has, however, firmly and repeatedly endorsed the broader view. This renders the Responsibility to Protect inconsistent with the recognised need to incorporate the many links between women, peace, and security into responses to humanitarian crises and mass atrocities. It also weakens the framework’s potential effectiveness. Discourse surrounding the Responsibility to Protect currently relies on traditional tendencies to view conflict through a lens of stereotypical and gendered binaries, and poorly reflects the complex realities of the situations the framework is meant to address. Such a narrow view of conflict ignores years of research, experience, and progress, and provides an unstable foundation from which to develop an effective strategy for the prevention of conflict and the creation of empowered protection.

Conclusion October 2010 marked the ten-year anniversary of SCR 1325. While the resolution has been heavily endorsed in principle and remains the most comprehensive articulation of the need to incorporate gender considerations into security initiatives, its implementation has not been well monitored or enforced. In 2009, the Security Council, through SCR 1889, expressed concern over this lack of accountability, and stressed again that “the marginalization of women can undermine the achievement of durable peace, security and reconciliation.”76 It also highlighted the importance of recognising the unique impacts of armed conflict on women and girls and of valuing their vital role in promoting peace. The resolution demanded that the Secretary-General develop reports, indicators, and strategic plans for ensuring that implementation occur. In response, the Secretary-General released a report in April 2010 on a series of “indicators” designed to assist in the realisation of the goals articulated in SCR 1325. The Security Council has indicated that it hopes to endorse these metrics after they are refined.77 Meanwhile, national governments, members of civil society, and academics continue to develop and expand the scope of discourse and commitments surrounding the women, peace, and security agenda. Over 50 states and organisations have recently outlined their plans for accelerating implementation of SCR 1325, and a database enumerating these commitments is publicly available through the website of a major NGO working in this sector.78 When one reads the statements and commitments that the international community is making in the area of women, peace, and security it is possible to believe that we are on the cusp of true progress. And it is nearly impossible to believe that at the same time that these 174

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statements are being made, a framework designed to offer protection and promote peace in times of violent conflict – a framework designed to deal specifically with the very issues that lie at the core of work relating to women, peace, and security – is failing to consider a gender perspective. How can the same organisations, states, and individuals who seem so aware of the importance of this work in one context be so oblivious to it in another? Some feminist scholars will argue that this disconnect is clear evidence that the systemic biases of international law and its institutions are so ingrained that a profound and complete transformation of the legal order is necessary before real progress will be realised; others will continue to advocate a vision of equality in the hopes that the power of international law will be able to realise its potential and effect positive change in the lives of millions.79 This contribution represents our attempt at the latter: it buries our normative concerns and instead presents the absence of balanced gender considerations in the Responsibility to Protect as a missed opportunity that can still be remedied. Over the past decade, the international community has acknowledged that traditional notions of conflict and protection must be revisited if true human security is to be realised. Consistent with this recognition, both the Responsibility to Protect and the women, peace, and security agenda challenge the status quo and offer new perspectives from which to approach responses to conflict. Herein lies the opportunity: proponents of the Responsibility to Protect can capitalise on this period of re-conceptualisation and maximise the effectiveness of the framework they are promoting by rejecting traditional falsehoods and incorporating all of the lessons learned about the true dynamics of conflict and prevention. This approach will ensure consistency with other international commitments and priorities, and generate a model that is enriched by existing knowledge about what is necessary for the attainment of true human security. The alternative is troubling. A failure to draw the links between the Responsibility to Protect and work on women, peace, and security not only risks the creation of an inconsistent and impoverished framework, but also the reversal of progress in breaking down gender stereotypes and dangerously simplistic binary approaches to conflict.

Notes 1 For a discussion of these issues see, for example: W. M. Reisman, Report, Tenth Commission: Present Problems of the Use of Armed Force in International Law, Sub-group on Humanitarian Intervention (Paris: 72 Annuaire de L’Institut de Droit International, 2007); M. Payandeh, “With Great Power Comes Great Responsibility? The Concept of the Responsibility to Protect Within the Process of International Lawmaking,” (2010) 35 Yale Journal of International Law 469–516. 2 For a discussion of these issues see, for example: H. Charlesworth and C. Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester: Manchester University Press, 2000); A. Orford, “Feminism, Imperialism and the Mission of International Law,” (2002) 71 Nordic Journal of International Law 275–96. 3 International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa: International Development Research Centre, 2001). 4 High-level Panel on Threats, Challenges and Change, A more secure world: Our shared responsibility, UN Doc. A/59/565 (2 December 2004). 5 Secretary-General, In larger freedom: Towards development, security and human rights for all, UN Doc. A/ 59/2005 (21 March 2005). 6 UN General Assembly, 2005 World Summit Outcome, UN Doc. A/60/L.1 (15 September 2005). 7 Ibid., para. 139. 8 UN News Wire, Secretary-General Appoints Edward C. Luck of United States Special Adviser (21 February 2008); Secretary-General, Early warning, assessment and the responsibility to protect, UN Doc. A/64/864 (14 July 2010). 9 Secretary-General, Implementing the responsibility to protect, UN Doc. A/63/677 (12 January 2009).

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10 See UN General Assembly, The responsibility to protect, A/RES/63/308 (7 October 2009). 11 In the ninth open debate on the Protection of Civilians, eight of the 40 member states’ contributions included specific references to Responsibility to Protect. See: ICRtoP, “Excerpted RtoP Statements from the 9th Security Council Open Debate on Protection of Civilians in Armed Conflict,” 7 July 2010, available at: (accessed 30 November 2011). 12 See Secretary-General, Early warning. 13 The primary focus of much of the work examining the gendered nature of conflict has been the historical neglect of the actual experience of women and girls. Thus, the general body of research and policy in this area is most frequently associated with the label “women, peace and security.” In the discussion that follows, we also adopt this terminology. 14 For example, a significant number of developments occurred during the UN Decade for Women (1976–85), including the drafting and adoption of the Convention on the Elimination of All forms of Discrimination Against Women, 1249 UNTS 13, 18 December 1979 (CEDAW). 15 See V. M. Hudson et al., “The Heart of the Matter: The Security of Women and the Security of States,” (2008/09) 33(3) International Security 7–45. 16 “Women and Armed Conflict” is Critical Area of Concern E of the Beijing Declaration and Platform for Action, UN Doc. A/CONF.177/20 (1995) and A/CONF.177/20/Add.1 (1995), adopted at the Fourth World Conference on Women, 15 September 1995. See: J. Gardam and M. Jarvis, “Women and Armed Conflict: The International Response to the Beijing Platform for Action,” (2000–2001) 32 Columbia Human Rights Law Review 1–66, at pp. 44–45. 17 The UN Economic and Social Council has defined gender mainstreaming as “the process of assessing the implications for women and men of any planned action, including legislation, policies or programmes, in all areas and at all levels. It is a strategy for making women’s as well as men’s concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic and societal spheres so that women and men benefit equally and inequality is not perpetuated. The ultimate goal is to achieve gender equality.” ECOSOC Agreed Conclusions of 1997/2 issued in Official Records of the General Assembly, fifty-second session, Supplement No. 3, UN Doc. A/52/3/Rev.1 (1997). 18 C. Cohn, H. Kinsella, and S. Gibbings, “Women, Peace and Security,” (2004) 6(1) International Feminist Journal of Politics 130–40. 19 See generally F. Hill, M. Aboitiz, and S. Poehlman-Doumbouya, “Nongovernmental Organizations’ Role in the Buildup and Implementation of Security Council Resolution 1325,” (2003) 28(4) Signs: Journal of Women in Culture and Society 1255–69. 20 D. Otto, “The Exile of Inclusion: Reflections on Gender Issues in International Law Over the Last Decade,” (2009) 10 Melbourne Journal International Law 11–26, at p. 16. 21 UN General Assembly, Summit Outcome. 22 C. True-Frost, “The Security Council and Norm Consumption,” (2007) 40 New York University Journal of International Law and Politics 115–218. 23 Records of the annual debates on women, peace, and security can be located at: UN Women Watch, Implementation of Security Council Resolution 1325, available at: http://www.un.org/womenwatch/ feature/wps/ (accessed 11 January 2012) . 24 See Inter-Agency Network on Women and Gender Equality, “National Implementation of Security Council Resolution 1325,” available at: http://www.un.org/womenwatch/ianwge/taskforces/wps/ national_level_impl.html (accessed 20 November 2011). 25 See Peacewomen, “Translation Initiative,” available at: http://www.peacewomen.org/translation_initiative/ (accessed 11 January 2012) . 26 See, for example: PeaceWomen (http://www.peacewomen.org/pages/about-us); The Global Network of Women Peacebuilders (http://www.gnwp.org/); Femmes Africa Solidarite (http://www. fasngo.org/index.html); The Women Waging Peace Network (http://www.huntalternatives.org/ pages/82_women_waging_peace_network.cfm); and Women Peace and Security Network – Africa (http://www.wipsen-africa.org/wipsen/about/?lang=en-us), all accessed 30 November 2011. 27 Google search for “women, peace, and security” performed on 11 March 2011 resulting in 109,000 hits. 28 See the NATO Library Page devoted to women, peace, and security resources in the context of NATO: http://natolibguides.info/women (accessed 17 January 2012) and the African Union’s portal relating to women, gender, and development: http://au.int/en/dp/wgd/ (accessed 17 January 2012).

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29 Department of Foreign Affairs and International Trade Canada: http://www.dfait-maeci.gc.ca/rightsdroits/women-femmes/ps.aspx?lang=eng (accessed 17 January 2012); US Department of Foreign Affairs: http://www.state.gov/r/pa/prs/ps/2010/10/150006.htm (accessed 17 January 2012); United Kingdom Foreign and Commonwealth Office: http://www.fco.gov.uk/en/global-issues/conflictprevention/women-peace-security/national-action-plan (accessed 17 January 2012). 30 See, for example: T. L. Tryggestad, “Trick or Treat? The UN and Implementation of Security Council Resolution 1325 on Women, Peace, and Security,” (2009) 15 Global Governance 539–57; R. Black, “Mainstreaming Resolution 1325? Evaluating the Impact on the Security Council Resolution 1325 on Country-Specific UN Resolutions,” (2009) 11 Journal of Military and Strategic Studies 1–30; C. Fujio, “From Soft to Hard Law: Moving Resolution 1325 on Women, Peace and Security Across the Spectrum,” (2008) 9 Georgetown Journal of Gender and the Law 215–36; N. R. Cahn, “Women in PostConflict Reconstruction: Dilemmas and Directions,” (2005–6) 12 William and Mary Journal of Women and the Law 335–76; S. Whitworth, Men, Militarism and UN Peacekeeping: A Gendered Analysis (Boulder, CO: Lynne Rienner Publishers, 2004), and H. Durham and T. Gurd (eds.), Listening to the Silences: Women and War (Leiden, NL: Martinus Nijhoff Publishers, 2005). For UN-generated reports, see, for instance: UN DPKO/DFS, Integrating a Gender Perspective into the Work of the United Nations Military in Peacekeeping Operations (March 2010); E. Sirleaf Johnson and E. Rehn, Women, War and Peace: The Independent Experts’ Assessment on the Impact of Armed Conflict on Women and Women’s Role in Peacebuilding (New York: UNIFEM, 2002); and the annual reports of the UN Secretary-General on women and peace and security from 2002 onwards. 31 See J. Bond and L. Sherret, “A Sight for Sore Eyes: Bringing Gender Vision to the Responsibility to Protect Framework,” New York: United Nations INSTRAW, 2005. 32 There have, however, been feminist analyses of military humanitarian intervention before the development of the Responsibility to Protect framework. Karen Engle echoes these concerns in the context of the military intervention aspect of the Responsibility to Protect, critiquing this component of the framework vis-à-vis its potential for harm to women’s rights. See K. Engle, “‘Calling in the Troops’: The Uneasy Relationship Among Women’s Rights, Human Rights, and Humanitarian Intervention,” (2007) 20 Harvard Human Rights Journal 189–226, reviewing various feminist perspectives on military intervention at pp. 217ff. 33 H. Charlesworth, “Feminist Reflections on the Responsibility to Protect,” (2010) 2(3) Global Responsibility to Protect 232–49. 34 E. Stamnes, “The Responsibility to Protect: Integrating Gender Perspectives into Policies and Practices,” Oslo: Norwegian Institute of International Affairs, 2010, available at http://english.nupi.no/ content/download/109400/335766/version/3/file/R2P-8-NUPI+Report-Stamnes.pdf (accessed 31 January 2012). 35 Charlesworth states that “there has been little study of the way that the principle might affect women’s lives, or its relationship to [SCR] 1325” (“Feminist Reflections,” pp. 241–42) and Stamnes comments that the same “lack of attention” to gender that is evidenced in the documents central to R2P is also seen in academia (ibid., p. 13). 36 The specific sites and ways in which this recognition occurs will be outlined in the discussion that follows. 37 A sampling of such works includes: S. Naraghi Anderlini, Women Building Peace: What They Do, Why it Matters (Boulder, CO: Lynne Rienner Publishers, 2007); L. Olsson, Gender Equality and United Nations Peace Operations in Timor Leste (Leiden: Koninklijke Brill NV, 2009); D. Mazurana, A. Raven-Roberts, and J. Parpart (eds.), Gender, Conflict, and Peacekeeping (Boulder, CO: Rowman and Littlefield, 2005); C. Cockburn, From Where We Stand: War, Women’s Activism and Feminist Analysis (London: Zed Books, 2007); N. Cahn, D. Haynes, and F. D. Ni Aolain, “Returning Home: Women in Post-Conflict Societies,” (2010) 39 University of Baltimore Law Review 339–69; C. Chinkin and H. Charlesworth, “Building Women into Peace: The International Legal Framework” (2006) 27 Third World Quarterly 937–57; M. E. McGuinness, “Women as Architects of Peace: Gender and the Resolution of Armed Conflict,” (2007) 15 Michigan State Journal of International Law 63–85; and F. Ni Aolain and M. Hamilton, “Gender and the Rule of Law in Transitional Societies,” (2009) 18 Minnesota Journal of International Law 380–402; as well as references in Note 30. 38 Global Centre for the Responsibility to Protect, “Implementing the Responsibility to Protect – The 2009 General Assembly Debate: An Assessment,” August 2009, pp. 1–2, available at http://globalresponsibility to protect.org/media/pdf/GCresponsibility to protect_General_Assembly_Debate_Assessment.pdf (accessed 30 November 2011).

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39 40 41 42 43 44 45

46 47 48 49

50 51

52 53 54 55 56 57

58

59 60 61 62

63

64

Secretary-General, Implementing the responsibility to protect. Ibid., para. 17. Ibid., para. 25. Ibid., para. 26. Ibid., para. 34. Ibid., para. 57. For discussion, see, for example: K. D. Askin, “Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles,” (2003) 21 Berkeley Journal of International Law 288–349. International Criminal Court, “The State Parties to the Rome Statute,” available at http://www.icc-cpi. int/Menus/ASP/states+parties/ (accessed 17 January 2012). UN General Assembly, Summit Outcome. For a critique of this initial approach, see Bond and Sherret, “A Sight for Sore Eyes,” pp. 43–45. It is crucial to reiterate here that the Responsibility to Protect framework, while including the potential use of military force as a last resort, includes a broad range of policy options for effecting exercises of responsibility. We note concern that recognition of sexual and gender-based violence as part of the framework could be used to legitimise military intervention in the name of protecting women’s honour, relying on stereotyped views of gendered victimisation. International response to rape and sexual violence must thus be approached with caution. See V. Nesiah, “From Berlin to Bonn to Baghdad: A Space for Infinite Justice,” (2004) 17 Harvard Human Rights Journal 75–98, pp. 90–91 for a discussion of women’s rights concerns in the NATO-led intervention in Afghanistan. Secretary-General, Implementing the responsibility to protect. See “Interactive Thematic Dialogue of the United Nations General Assembly on the Responsibility to Protect,” 23 July 2009, available at http://www.un.org/ga/president/63/interactive/responsibilitytoprotect.shtml (accessed 17 January 2012). UNGA, 63rd Session, 97th plenary meeting, UN Doc. A/63/PV.97 (23 July 2009). UNGA, 63rd Session, 99th plenary meeting, UN Doc. A/63/PV.99 (24 July 2009). UNGA, 63rd Session, 100th plenary meeting, UN Doc. A/63/PV.100 (28 July 2009). Secretary-General, Early warning. Ibid., para. 3. The differential contributions of men and women are not mentioned at all in the report. Sexual violence is mentioned once: the Secretary-General states that independent sources of information – including civil society groups and country experts – may be amongst the first to detect a number of changes, including increases in the recruitment of child soldiers, the targeting of minorities, and sexual and gender-based violence (ibid., para. 12). UNDP-UNIFEM, Consultation on Gender, Early Warning and Conflict Analysis: Programming for Conflict Prevention – Summary Report (New York: UNIFEM, 2006). Other examples include: A. Moser, “Engendering Conflict Early Warning” (New York: UNIFEM, 2006); S. Schmeidl and E. Piza-Lopez, Gender and Conflict Early Warning: A Framework for Action (London: International Alert and Swiss Peace Foundation, 2002); and F. Hill, “The Elusive Role of Women in Early Warning and Conflict Prevention,” (2003) 3 Conflict Trends 11–17. Secretary-General, Early warning. Ibid., para. 17. Ibid., paras. 15–18. See generally: the General Assembly Interactive Dialogue on Early Warning, Assessment and the Responsibility to Protect (9 August 2010), available at http://www.responsibilitytoprotect.org/index.php/ component/content/article/35-responsibility to protectcs-topics/2914-general-assembly-debate-onearly-warning-assessment-and-the-responsibility-to-protect- (accessed 17 January 2012). Andrea Bartoli, “Preliminary Notes on Genocide Prevention and the United Nations”, Prepared for the informal interactive dialogue of the United Nations General Assembly on “Early warning, assessment and the responsibility to protect” 9 August 2010, at pp. 7–8, online at: http://www.responsibilitytoprotect.org/ Andrea%20Bartoli%20- -%20Preliminary%20notes%20on%20genocide%20prevention%20and%20the% 20UN.pdf Muna Ndulo, “Responsibility to Protect Populations from Genocide, War Crimes, Ethnic Cleansing, and Crimes Against Humanity”, at para 16, online at: http://www.responsibilitytoprotect.org/Muna% 20Ndulo%20- -Responsibility%20to%20Protect%20populations.pdf

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65 The Global Centre for the Responsibility to Protect is available at: http://www.responsibilitytoprotect. org/ (accessed 17 January 2012); ICRtoP is available at: http://globalresponsibility to protect.org/ (accessed 17 January 2012). 66 The following statement appears as part of the Coalition’s “common understanding of RtoP”: “the Coalition believes the Responsibility to Protect requires the international community to recognize that conflict affects women and men differently. This is an essential first step in developing gendered responses to conflict, empowering women in the prevention and ending of conflicts, and the rebuilding of communities after conflict,” available at http://www.responsibilitytoprotect.org/index.php/aboutcoalition/our-understanding-of-rtop (accessed 17 January 2012). 67 ICRtoP’s membership includes the Women’s Refugee Commission. 68 It should, however, be noted that in the recent past both were led by female directors: The GCR2P by Mónica Serrano until her recent replacement by Simon Adams, and the ICRtoP by Doris Mpoumou. The ICRtoP is currently managed by Sapna Chhatpar Considine as Deputy Director. Mpoumou had brought extensive experience in policy analysis, advocacy, and coalition building on issues such as women’s participation in decision making, global governance, peace and security, and violence against women. 69 UNIFEM, Addressing Conflict-Related Sexual Violence, June 2010, available at http://www.unifem. org/materials/item_detail.php?ProductID=172 (accessed 30 November 2011). Although precise figures are difficult to obtain and verify, reports suggest that approximately 20,000 rapes occurred during the Bosnian wars, 50,000 during the conflict in Sierra Leone, and 500,000 during the brutality in Rwanda: The Economist, “War’s Overlooked Victims: Rape is Horrifyingly Widespread in Conflicts all Around the World,” 13 January 2011, available at http://www.economist.com/node/17900482?story_id=17900482 (accessed 17 January 2012). In 2010, the head of the UN Mission in the Democratic Republic of Congo estimated that over 15,000 rapes had been committed in the previous year of conflict and in 2011 he reiterated that rape continues to be used as a weapon of war by both government and rebel forces. See UN News Centre, “Progress on DR Congo’s Path to Stability, but Shortfalls hamper efforts,” 7 February 2011, available at http://www.un.org/apps/news/story.asp?NewsID=37483 (accessed 17 January 2012). 70 Ibid., p. 15. See also: L. Stemple, “Male Rape and Human Rights,” (2009) 60 Hastings Law Journal 605–45; D. A. Lewis, “Unrecognized Victims: Sexual Violence Against Men in Conflict Settings Under International Law,” (2009–10) 27 Wisconsin International Law Journal 1–50. 71 Even the creation of such lists is riddled with complexity, and what must be borne in mind is that these indicate likelihoods, not fixed realities; for example, some women may be targeted for summary execution while men can be destitute refugees. See C. Carpenter, “‘Women, Children and Other Vulnerable Groups’: Gender Strategic Frames and the Protection of Civilians as a Transnational Issue,” (2005) 49(2) International Studies Quarterly 295–334. 72 D. Otto, “The Exile of Inclusion,” p. 25. 73 SCR 1889, S/RES/1889 (2009), Preamble. 74 See, for example: UNIFEM, which notes that SCR 1325 contains the “core principles” in the area, while SCRs 1820, 1888, and 1889 are “supporting resolutions” (http://www.unifem.org/gender_issues/women_war_peace/ accessed 30 November 2011) and Peacewomen, which highlights the importance of SCR 1325 and notes that the four relevant resolutions work together to form a “critical framework” for addressing the situation of women in conflict areas (http://www.peacewomen.org/ pages/1325–10/1325-and-subsequent-scrs accessed 30 November 2011). See also: S. Cook, “Security Council Resolution 1820: On Militarism, Flashlights, Raincoats, and Rooms with Doors – A Political Perspective on Where it Came From and What it Adds,” (2009) 23 Emory International Law Review 125–40; M. Ndulo, “The United Nations Responses to the Sexual Abuse and Exploitation of Women and Girls by Peacekeepers During Peacekeeping Missions,” (2008) 27 Berkeley Journal of International Law 127–60. 75 See, for instance: Resolution 1906 SCR 1906, S/RES/1906 (2009) on the Democratic Republic of Congo; Resolution 1892 SCR 1892, S/RES/1892 (2009) on Haiti; and Resolution 1902 SCR 1902, S/RES/1902 (2009) on Burundi. 76 SCR Resolution 1889, SCR 1889, S/RES/1889 (2009), preambular para. 8. 77 Secretary-General, Women and Peace and Security Report of the Secretary-General, UN Doc. S/2010/173 (6 April 2010); “Security Council to Act on Indicators for Tracking Implementation of Landmark Text Addressing Women, Peace and Security,” Security Council, 6302nd meeting, UN Doc. SC/9914 (27 April 2010).

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Jennifer Bond and Laurel Sherret 78 See “SCR 1325 Commitments Database,” Peacewomen, available at http://www.peacewomen.org/ commitments/?adhocpage=3342 (accessed 17 January 2012). 79 For a discussion on the foundations of these differing approaches, as well as their potential intersection, see D. Otto, “Power and Danger: Feminist Engagement with International Law through the UN Security Council,” 22 March 2010, University of Melbourne Legal Studies Research Paper No. 458, available at SSRN, http://ssrn.com/abstract=1576225 (accessed 17 January 2012).

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14 MAKING R2P WORK Now and in the future Lloyd Axworthy and Allan Rock

Introduction We are former political practitioners who respectively played a role first in the conception of R2P (through the establishment of the International Commission on Intervention and State Sovereignty [ICISS]), and then in its adoption (by leading the Canadian advocacy and negotiation efforts at the 2005 UN World Summit in New York). Given our history with R2P, it will not surprise that we believe it is an important concept that can help resolve the disjunction between risks to the survival of many civilian populations and the incapacity of the present state-centric international system to protect against such risks. We also believe, however, that it is now urgent that the many items of unfinished business surrounding R2P be addressed, so that it truly becomes a set of principles ready for application in appropriate cases. We also believe that it is important to establish R2P as a working model for international action: to gain better political traction and more widespread implementation, so that R2P is not just an item of academic debate or administrative tinkering at UN headquarters. This is not to downplay the present efforts to give R2P some standing as a norm for international action or to understate the difficulty in doing so. We recognise that the Westphalian system of state sovereignty has been around for almost 400 years. Amongst others, it serves the interests of those who hide behind its legal cover to commit crimes in the name of the state. But this first part of the twenty-first century cries out for a different approach if we are to seek a stable, sustainable world that gives protection to those who are most vulnerable to abuse and criminal threat. As a result of the Outcome document unanimously adopted at the 2005 UN Summit, there is for the first time in a global declaration an exception to the UN Charter’s prohibition against international involvement in a member state’s ‘domestic jurisdiction’. One of the features that made such an exception politically acceptable to diverse members of the international community is that R2P affirms the state itself as the ‘first responder’, with the primary responsibility to address the emerging threat to its own people. Indeed, R2P stresses the international community’s duty to support and assist the state in meeting its own responsibility. Outside intervention is contemplated only when the state is unable or unwilling to meet its responsibility or when the state itself becomes the predator, in which case responsibility then shifts to the international community. 181

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Our objective in these pages is not simply to consolidate the progress of the recent past, but also to anticipate potential gains in the future, and to acknowledge to ourselves what is possible. In a speech to the Royal Society in 1947, Harold Innis, Canada’s great sociologist, cautioned that we not fall prey to what the philosophers call the law of Minerva’s owl: that the owl flies at dusk.1 Meaning that we fail too often to recognise the warning signs in advance, and only truly understand where we went wrong once the event is passed. As a result we fall back on old answers or react out of haste and lack of forethought and attention. From time to time an idea comes along that sets out a pathway not only to where we’ve been, but also to where we are going. R2P is that kind of idea. This chapter will outline how its full potential might be achieved. The first section will look at the evolution of R2P as an international norm over the past 15 years. Recognising that R2P remains in its infancy, the second section of this chapter will outline items that still need to be addressed in order to make it fully operational. The final section will take the opportunity to promote a broader vision for R2P, to be developed, perhaps, over the next 15 years.

Background R2P was born out of the breakdown of the Cold War political rigidities in the mid-1990s. There was a growing awareness of the importance of advancing a human security agenda rather than the traditional national security interests of individual states, combined with the growing influence of civil society and their promotion of human rights-based initiatives on a global level. It reflected the concern expressed by former UN Secretary-General Kofi Annan about the increasing transcendence of security threats to individuals across boundaries, what he called ‘problems without passports’,2 and the need for international intervention to protect innocent people even if it meant challenging the sacredness of sovereignty. By the mid-1990s, what emerged was the idea of putting the protection of individuals at the centre of foreign policy as opposed to relying only on traditional concepts of security, which primarily emphasised the use of force, and national security. We were in a position to witness this emergence at close quarters. The Canadian government had been actively pursuing a foreign policy based on the human security principle from 1995 and had been an active player in the development of new international instruments, namely the Ottawa treaty on anti-personnel mines and the ICC. In the course of these actions it was often debated how far, and in what way, the international community could take action in protecting people if they faced a hostile government claiming its sovereign right to do as it wished inside its own boundaries. One such discussion took place in Berlin, following a meeting of international ministers regarding the crisis in the Balkans. Late-night discussions within the Canadian delegation took place around how the human security principle could be translated into action when and where there were deliberate acts of violence being visited on innocent victims. The massive killings that took place in Rwanda and the atrocity in Srebrenica generated a feeling that the post-Cold War world needed fresh rules. The concern was not limited to genocide and mass atrocity. Mass killings were simply the most obvious and dramatic illustration of the need to get beyond the strictures of the Westphalian model of state sovereignty in a world confronting critical issues that cannot be solved by one nation alone, no matter how powerful. These events coincided with Canada’s campaign for an elected seat on the UN Security Council. We were able to articulate an agenda that clearly promoted the human security principle, and we laid out several key points, including how we would reform the rules to broaden UN peacekeeping mandates to include the protection of civilians under threat. It is important 182

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to note that these very specific commitments garnered overwhelming support for our election to the Security Council seat. It was the Kosovo conflict that brought the ultimate test of the principles we had been advancing. Were we prepared to put them into action? In the summer of 1999 diplomatic efforts were made to find a way to mount a UN response, but it was not to be. Led by Madeleine Albright, the focus shifted to NATO and the decision was made to authorise the bombing campaign. It was not our preferred way. But in the untidy and difficult circumstances it was considered the only option and we joined in, citing the rationale of protecting civilians. We had moved from late-night discussions of a principle to the imperative to act. When the Kosovo conflict concluded, our post-mortem was that an even greater effort must be made to set out a systematic and responsive framework of rules and procedures for the protection of vulnerable people. This gave impetus to a Canadian government initiative to establish ICISS, as a way of formulating a solution to the dilemma of international intervention. At first we thought this should be a UN-sponsored Commission. But after discussions with highly placed officials at the UN, our views swung over to establishing an independent commission, thus avoiding the pitfalls of trying to construct a body that would be created by the UN. But we proceeded on the assurances that the report of such a commission would be given serious acceptance at the highest levels of the UN. In 2001, ICISS released its report, making recommendations that were seen as theoretically attractive but politically over-ambitious, making achieving them unlikely. It was widely predicted that the report would be ignored, especially since preoccupations had turned (after 9/11) from ‘humanitarian intervention’ to issues of security and counterterrorism. But the report of the Commission did not go away, testifying to the underlying good sense it made in recommending an agenda of change. The primary message in the report was that there had to be a more clear-cut set of rules and procedures for determining when and if there should be international engagement for human security reasons. The major focus was on the most violent atrocities, because they were the most compelling preoccupation of the time. But it was never assumed by the authors that this would be the only category of risk that would be addressed. In redefining the notion of sovereignty, R2P asserts the responsibility of the state to protect its own citizens from ‘avoidable catastrophe’.3 If it doesn’t, then international involvement is warranted. Following the release of the report, the next milestone was 2005, when, to the surprise of many, member states in attendance at the Global Summit unanimously adopted an outcome document that included in paragraph 139 a statement that member states are … prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case by case basis and in co-operation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.4 The words of paragraphs 138 and 139 of the Outcome document resulted from many months of negotiations among member states. Those negotiations became particularly intense as the date for the arrival of leaders loomed in mid-September of 2005 and a final push was made to produce a consensus document. While preserving and conveying the essence of R2P as a set of principles, the words that appear in paragraphs 138 and 139 of the Outcome document reflect both the harried nature of the process and the push-me/pull-you dynamics of multilateral 183

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negotiations. Many recommendations in the original ICISS report fell away as ‘deal breakers’ in the eyes of various interests. For example, restrictions of any kind on the veto in the Security Council went unaddressed in the final document and the range of threats to which R2P responded was narrowed considerably. Authority to decide was vested exclusively in the Security Council. And some language was included solely for the purpose of reassuring member states worried about the Bush administration’s unilateralist tendencies. Despite the narrowing, the paragraphs in the Outcome document represent a remarkable breakthrough in that they constitute the first departure by the international community and all of its members from the concept of sovereignty as absolute in dealing strictly with domestic matters. Forever after, the word ‘sovereignty’ would be accompanied by an asterisk, since there was now the possibility of lawful external action to interfere with the conduct of sovereign rulers within their own states, albeit in very obvious cases when they are killing their own people en masse. Of course, the initiative has not been without its critics. Supporters have been engaged in constant effort since 2005 to preserve R2P progression and address setbacks. In 2009 there was an attempt by some opponents to use a debate in the General Assembly on the SecretaryGeneral’s report on R2P to attack the principle itself. Despite predictions that many members of the G-77 would vote to repeal or limit the 2005 adoption of R2P, the 2009 debate showed widespread support for R2P. Only four states (Venezuela, Cuba, Sudan and Nicaragua) sought to roll back the 2005 resolution. Civil society played an integral role in building support during the 2009 debate. The Centre for the Responsibility to Protect, among others, mounted very skilful campaigns with the media, which undoubtedly influenced opinion in various foreign ministries. The generally high degree of support for R2P was rather a surprise. Rather than the debate being a setback it had the opposite effect, and served as a reaffirmation. Efforts could now turn to implementation. R2P had indeed emerged as a new norm, resetting limits on sovereignty, and a robust one at that. If one looks back, therefore, on this series of events over 15 years, a very definite and positive arc can be traced. Despite scepticism and doubt, real progress has been made. From the latenight exchanges of musing ministers, through a period of improvisation in Kosovo, to the recommendation, the adoption and then the reaffirmation of a new international norm – there has truly been a continuous and relatively rapid evolution. We have concluded collectively that the old model of separate state authority simply cannot respond to the current generation of shared challenges.

Unfinished business Given the strong support that R2P has garnered in such a short period of time, we argue that this is the moment to capitalise on the momentum and make R2P fully operational within the current international system. In this part of the chapter, we identify eight outstanding matters. These are not simply optional or ancillary items. Their successful resolution is essential to making R2P a real and credible doctrine, capable of responding effectively at every stage of the future crises that will surely arise.

1. Early warning system An early warning system was specifically prescribed in the World Summit document.5 Such a system should be part of a toolbox of instruments for prevention. Currently, poor information 184

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flow and insufficient collaboration between the UN, regional organisations, member states and non-governmental organisations (NGOs) are hampering prevention efforts. Data sharing between these actors in potential crises must become more efficient if timely preventive measures are to be implemented. These efforts would be bolstered by the development of an early warning system centred at the UN (in cooperation with other regional organisations like the African Union) that would engage in systematic monitoring focused on a well-maintained ‘watch list’ of potential crisis situations. It is imperative that the Human Rights Council (HRC) be wired into the system. Despite accusations targeted at its weaknesses, the HRC nonetheless deploys rapporteurs in danger spots, and their early reports can alert the international community to incipient signs of trouble. Information sharing between the office of the UN High Commissioner for Human Rights, the Office for the Co-ordination of Humanitarian Affairs and the Peacebuilding Commission would also prove invaluable. Nor should the role of NGO networks be undervalued in their ability to provide up-todate information from strategic locations near the source. An NGO-based system has similarly been used under the Ottawa Treaty, which draws upon civil society groups in various countries to provide on-the-ground information and ‘blow the whistle’ on states that don’t comply.

2. Training and equipping a standing rapid reaction force (RRF) When it comes to mobilising protection forces, the present system is proving to be unwieldy and inefficient. It is not only the difficulty and delay in raising the force that is troublesome. There is the additional concern about their training and capacity. Where an R2P deployment is required in order to prevent imminent violence or to stop it once begun, the need is for an RRF possessing a subtle combination of soldier and peacekeeper that is not available ‘off the shelf’. That role calls for specialised training and also quite specific equipment. None of this is part of regular national defence preparedness, so we need to think through how and where the RRF is to be trained. A proposal put forward by a number of committed civil society organisations for the creation of the UN Emergency Peace Service deserves our attention.6 Imagine a force comprising 15,000 or so civilian, military, police and judicial personnel with a broad range of skills, experience and equipment ready to be deployed to a crisis within 48 hours after UN authorisation. Such a quick response would serve to avoid the escalation of a preventable humanitarian crisis in the period until a full peacekeeping force could be mobilised. As first responders to situations of mass atrocity or large-scale environmental catastrophe, a UN Emergency Peace Response Service would augment – not replace – other responses to humanitarian crises. Its expertly trained personnel would stabilise crises while the UN, regional organisations and domestic governments undertook the time-consuming process of marshalling ad hoc support for peace and relief operations should they be necessary. While it is clear that such a sophisticated emergency response capacity would be expensive, the costs of humanitarian crises that are allowed to escalate are unquestionably higher.

3. Creating and deploying “good offices” and mediators Another important tool in deploying R2P is broadened diplomatic capacity to replicate the success achieved by Kofi Annan’s response to post-election violence in Kenya.7 This should be a direct undertaking by the UN and other multilateral organisations. 185

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A corollary is to have a very effective ‘diplomatic friends’ group made up of representatives from committed countries that can ‘run interference’ for the envoy mission, secure agreements from home governments and ensure that the diplomatic effort is not undermined by others working at cross purposes. All too often the broad range of economic and diplomatic options available to pressure governments is lost in premature discussions about military intervention. The strict threshold criteria for military intervention presented in the ICISS report, but left out of the Outcome document, would protect against the misuse of military force in the name of R2P. Creating visible and effective mediation capacity, to be used before any threat of military intervention, would pull the fangs out of many of the more hard-line opponents.

4. Develop more effective sanctions The tools needed to make R2P work include targeted sanctions that can be initiated as soon as an early warning alert has been received. Efforts in this area have been lacking of late, and creative thought must be devoted to population-friendly, regime-punishing, pressure-producing, readily enforceable and truly effective sanction techniques. This subject cries out for concerted and creative analysis. The example of the Commonwealth should be studied for guidance and precedent. Under the Harare Declaration, which opposes military takeovers of government, any transgression would trigger the establishment of a ministerial action group. In the cases of Nigeria, the Gambia and Pakistan, recommendations were forwarded and in some cases immediate action was taken to suspend membership or to impose sanctions. These were good examples of timely action to reduce escalation of conflict and suffering. The most effective sanctions are those that are ‘targeted’ and can be directly applied to leaders and their associates in the shortest possible time. A catalogue of means must be developed by which sanctions could be directed at leaders, including travel bans, financial withholdings, the blacklisting of corporations and legal remedies that could be managed by a committee of the Security Council.

5. Security Council reform Security Council use of the veto to constrain UN action in places requiring intervention, even in cases of the most urgent preventive kind, is an abuse of the veto privilege and needs to be challenged openly and judicially. It could become a matter of serious opposition to the power of the select five permanent members and a key element of a reform package. A beginning point would be restrictions on the use of the veto when it comes to matters of civilian protection measures. Fundamentally, the Security Council must change to reflect contemporary realities. Over 35 member states participating in the 2009 UN debate called for the five permanent members to refrain from using their veto in matters of R2P.8 As India’s UN representative said at the recent UN General Assembly debate on R2P: Even a cursory examination of reasons for non-action by the UN, especially the Security Council, reveals that in respect of these tragic events that were witnessed by the entire world, non-action was not due to lack of warning, resources or the barrier of state sovereignty but because of strategic, political or economic considerations of those on whom the present international architecture had placed the onus to act.9 In this context, Security Council reform should include broadening membership to make the Council more representative. By including a greater regional representation from the Global 186

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South, we might make the Council not only a more credible actor but also perhaps better able to understand and respond to a potential mass atrocity.

6. The role of regional organisations The specific inclusion in the 2005 outcome document of a commitment to involve and consult regional organisations was intended to demonstrate that the application of the R2P doctrine would not be limited to New York but would be decentralised to the world’s regions. Bringing in regional organisations such as the African Union (AU) should not only increase regional capacity but lend legitimacy to the principle by involving regional powers in a meaningful way. Additional regional involvement might be achieved by the creation of regional responders, such as an African Standby Force through the auspices of the AU. Regional organisations are ready to take on this role. In Africa, for example, the AU in 2009 adopted a seminal Convention for the Protection and Assistance of Internally Displaced Persons in Africa. The convention is the first of its kind in the world. It declares that states are responsible for protecting and assisting their citizens that have been internally displaced due to conflict or natural disasters.10 One area of concern regarding the implementation of R2P by various actors is that it can be manipulated to serve new forms of colonial interest. While we would argue that this is, in fact, a misinterpretation of the intentions of the principle, drawing regional organisations into the fold can allow a greater system of checks and balances. When the UN Security Council is unable to come to a decision to take definitive action when crises present themselves, decentralising mobilisation to alternative multilateral organisations would be encouraged when appropriate. This could also serve to quell some of the anxieties of those who are concerned with the intentions of particular state actors in positions of power.

7. Integration of gender into the R2P framework As is persuasively argued by Bond and Sherret elsewhere in this collection, particular attention must be given to the role of gender in strengthening the R2P framework. The original ICISS report did not take into account the unique experiences of women and girls in conflict situations. Indeed, the word ‘gender’ does not appear at all within its pages. Yet we know that it is women and their children who are most often the victims of mass atrocity crimes. Take, for example, the situation in the Democratic Republic of the Congo (DRC). The widespread and systematic rape of tens of thousands of women in Eastern DRC is surely a mass atrocity calling for an international response in accordance with R2P. The level of sexual assault has been described as epidemic in some regions.11 It is considered to be the worst instance of sexual violence in the world, specifically and intentionally targeting women in an effort to destroy them. At the moment, even the presence of UN peacekeeping forces fails to offer protection, as the systematic rape of nearly 200 women in Eastern DRC in the summer of 2010.12 Understanding this reality should become a major dimension of the R2P rationale, hopefully calling up broader support for its implementation. At the prevention level, gender perspectives must be built into early warning analysis and must be reflected in data collection processes. At the level of reaction, gender awareness training for all peacekeeping personnel is essential, as is the participation of women at all levels. At the rebuilding level, the role of women has proven vital in local conflict resolution and peacebuilding initiatives. There is increasing recognition that the empowerment of women can reduce the potential of violence, the mobilisation of democratic and economic forces, and the 187

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creation of a political culture of stability. The original R2P argument misses these crucial points, and they must now be built into the equation.

8. Adoption of rules governing the use of force Concerns and misgivings surrounding the R2P principle are often directed towards the spectre of unjustified military intervention. Recent history gives good reasons for this concern, as we have seen with Russia’s misappropriation of the concept in Georgia. This preoccupation remains the concept’s most significant challenge. The strict and rigorous threshold criteria for military intervention presented in the ICISS report, but left out of the World Summit document, provided important protection against the misapplication of the principle and the misuse of military force in the name of R2P.13 During the 2005 negotiations, certain states found the stipulations too limiting and unacceptable. In an effort to garner a deal and push the concept ahead, proposed rules limiting the use of force were dropped. The matter remains as important as ever, however. Adopting the rules as proposed by ICISS (or as improved) would respond to those who tendentiously argue that R2P is an imperialist plot to get ‘our’ troops onto ‘their’ sovereign territory. The rules make it abundantly clear that recourse to military means is rare and hedged about with strict principles and exacting criteria. The focus of intervention should be on prevention before the use of force.

The way forward: the next 15 years We have already observed that the evolution of R2P over the past 15 years discloses a very definite trend. If one had asserted in the mid-1990s that a concept to address ‘problems without passports’ that was inconsistent with Westphalian sovereignty would within a decade be endorsed without dissent by UN member states, the response would have been stunned incredulity. Yet it has happened. Our purpose in this chapter is not only to examine that evolution over 15 years, but also to offer a future vision of R2P. For it is important even at this stage, while the hardscrabble work of building an ‘R2P tool-kit’ is underway, to cast the mind’s eye 15 years hence to see where the future of the concept might lie.

Yesterday, today and tomorrow The remaining part of this chapter will develop three points: first, even the narrowed version of R2P as expressed in the 2005 outcome document supports a more robust interpretation than it has since been given. Second, given that the 2005 language was produced by compromise arising from negotiation, every effort should now be made to seek agreement on broadening that language to match the scope envisioned in the original ICISS report. Finally, while R2P was developed as a means to protect populations from large-scale preventable deaths, the authors will argue that its foundational principles can be separated out and put to a different use for a wider purpose: namely, as a way to reach global goals that require a collective response where each sovereign state is expected to do its part and their refusal to do so endangers the achievement of the shared purpose.

(i) The ‘2005 formula’ We begin by looking at how the words in the Outcome document have been interpreted. Such was the anxiety of certain member states during the 2005 negotiations in New York about the potential posed by R2P for unrestrained interference in their domestic affairs that 188

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each sentence in the crucial paragraph 139 of the Outcome document repeats verbatim the formula that prescribes the only four events agreed therein to give rise to R2P’s application: genocide, war crimes, crimes against humanity and ethnic cleansing. This formula narrows the scope of R2P as proposed in the original ICISS report (see, for example, paragraph 4.20 discussing conditions that would justify the ‘just cause’ component of the decision to intervene). Even at that, however, there has been a reluctance since 2005 to give full scope even to the restricted Outcome document language in relating R2P to specific country situations. Two examples will suffice. The first is the Democratic Republic of the Congo (DRC), where the national government has been manifestly unable to protect large numbers of its citizens in its eastern regions from violence and death, forced displacement and, especially (but not exclusively) in the case of women, mass rape and other forms of grievous sexual violence. On their face, these preventable crimes fall within the ‘2005 formula’ (and indeed the ICISS report specifically refers to mass rape as a manifestation of ‘ethnic cleansing’: see, for example, paragraphs 2.29 and 4.20 of the ICISS report). Yet there has been insufficient discussion of R2P in the context of DRC. The government of DRC insists that it is doing everything in its power to provide protection to the affected civilians. It also permits the continued presence in its eastern region of UN troops to bolster the effort (although recently with reluctance and in reduced numbers). DRC therefore presents an opportunity for the international community to invoke R2P in a benign situation where the state in question might acknowledge the need for assistance in protecting its population, and more effective measures might be developed and implemented to provide it. The other example is Burma, where the military junta refused admittance to international aid groups following Cyclone Nargis. Although the regime eventually relented, it looked for several weeks after the catastrophe as though more than 100,000 lives were in peril because of the wilful refusal to allow aid to enter the country. In response to this appalling cruelty, French Foreign Minister Bernard Kouchner rightly called on the UN Security Council to use the principle of R2P as the basis for a resolution to expedite relief efforts. Many R2P supporters expressed strong reservations about applying R2P to the situation in Burma.14 There were fears that this type of intervention would set a potentially undesirable precedent, that it might result in military intervention or that it could raise the spectre of some new form of colonialism. What was understated is that under R2P military intervention is considered to be an absolute last resort. As outlined above, the R2P toolbox contains a wide range of diplomatic, political and economic measures to pressure governments, steps that would surely have been justified and necessary had the military regime persisted in its refusal. We would argue that even on the limited ‘2005 formula’, R2P was engaged in the case of Burma. The term ‘mass atrocity’ is not limited only to those preventable deaths that result from bullets or machetes. The military’s arbitrary refusal to allow life-saving aid for 100,000 of its citizens, if maintained, would surely have been a ‘crime against humanity’ within the meaning of that term in the ‘2005 formula’.

(ii) Acting on the ICISS recommendations In addition to arguing for broader action under the 2005 Outcome document, the second point we are making is that the international community should consider and adopt such additional wording as may be necessary to make clear that R2P applies in all of the ways that the ICISS report intended. This would extend beyond the four events in the ‘2005 formula’ to cases in 189

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which large numbers of lives are imperilled because a government is incapable of doing, or refuses to do, something within its lawful power. The ICISS report, in paragraph 4.20, included the following in describing the conditions that would satisfy the ‘just cause’ component in the decision to intervene: Situations of state collapse, and the resultant exposure of the population to mass starvation and/or civil war; and overwhelming natural or environmental catastrophes, where the state concerned is either unwilling or unable to cope, or call for assistance, and significant loss of life is occurring or threatened.15 The principle would therefore apply, for example, to the current crisis in Haiti, following the earthquake that occurred on 12 January 2010, killing hundreds of thousands of Haitians including 17 per cent of the government’s workforce. What remained of the state did not have the capacity necessary to protect and provide for the survivors of this catastrophe.16 Prior to the earthquake, of course, Haiti had been on the edge of crisis for decades, plagued by ineffective government, frail infrastructure, and weak systems of education and health. Despite international humanitarian assistance, the pace for resettlement of those who have lost their homes is slow, and many Haitians remain homeless, jobless and hungry. Without an adequately coordinated response, there is the risk of funds being spent in wasteful or ineffective ways. While the Haitian government has not denied access to humanitarian assistance following the earthquake, it manifestly does not have the capacity to respond on its own. Under a broader interpretation of R2P, the principle could usefully be invoked to provide a coherent and rational framework for the international response. We argue for the fuller interpretation of the ‘2005 formula’ and for a negotiated enlargement of the outcome document language because we believe that invoking R2P in all appropriate cases will accelerate its broader acceptance as a standard form of collective response to large-scale preventable deaths. The more that the principle is invoked with positive effect and without military intervention, the faster we will overcome the widespread fallacy that R2P equates in every case with armed invasion. Furthermore, if R2P is not resorted to where it applies, R2P may well become a remote concept of little practical value and thereby fail in its very purpose.

(iii) R2P ‘unbundled’ Today’s world is full of challenges that do not belong to a single state. These ‘problems without passports’ can only be addressed by collective action. No individual government, no matter how powerful, can solve them. And they are as urgent as they are numerous. Whether one thinks of global warming, terrorism, migration, transnational crime or water management, this world-wide web of shared challenges encircles and connects North and South, developed and developing, rich and poor, and will only yield to a shared response. And yet the political structures available at present to furnish collective solutions to these global challenges are wholly inadequate to the task. The most prominent political instrument remains the separate, sovereign state. Its traditional attributes lengthen and complicate, and sometimes render impossible, the job of forging common positions. Form frustrates function, and global problems worsen, as 193 governments work at their own pace to develop distinct policies through separate processes. Awkward machinery, designed for a distant, different world, now slows the production of effective responses and almost guarantees a lack of consistency among them, once produced. 190

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There is a pressing need for solutions developed through a framework that is as global as the problems that confront us. We suggest a new approach to global action, and a bridge to get us there. The approach derives from some of the principles that underlie R2P. Although R2P itself is uniquely and solely intended to deal with protecting populations from large-scale preventable deaths, when R2P is ‘unbundled’ and its component principles examined, it becomes clear that those principles might help address other problems that engage humanity as a whole. Let us illustrate with climate change. Imagine a global consensus on climate change that recognises causes and effects and establishes targets and tactics. Imagine too the shared expectation that each state will do its part by acting as agreed to meet the challenge. Finally, imagine that the consensus is adopted against a background that includes the following agreed principles, recognisable from their origins in R2P:  each sovereign state will be looked to first to do its part towards achieving the consensus goals;  the international community will furnish such support as may be needed to enable each state to get the job done;  where a state fails or refuses to do its part, there will be consequences calibrated to meet the seriousness of the lapse. Those consequences will be determined by the international community and will be designed to encourage compliance by the errant state, intended to enable achievement of the consensus goals, and sanctioned by a lawful authority such as the Security Council of the United Nations. This new architecture would allow for the achievement of shared objectives without departing from the primacy of the sovereign state, while also escaping the Westphalian strait-jacket that impedes progress at present.

Conclusion This is an era for the development of new international norms and tools, of which R2P is only one component. Perhaps the most important of these new tools of intervention is the use of the law itself. A combination of political accountability through R2P on the one hand, and legal accountability through the ICC and international criminal justice on the other, make it clear to those who would abuse their power or ignore their responsibilities that they will be held responsible. In his book Worse than War, Daniel Jonah Goldhagen argues that large-scale humanitarian crises, specifically eliminationist campaigns, are the product of intentional actions by political leaders. In order to prevent these campaigns, we must increase the costs to the perpetrators while making their perceived benefits appear that much less attractive.17 This was the case with Miloc´evic´ and his cohorts during the Kosovo Crisis. After being indicted as a war criminal by the International Criminal Tribunal for the former Yugoslavia, he quickly lost his political perch. As his power started to crumble, he was more willing to come to the negotiating table, and ultimately to the court in The Hague. His indictment sent a strong message to others in the Serb leadership, who then began to distance themselves from their president. It was an apt demonstration of the interplay of political and legal action to end the impunity of a national leader bent on human destruction. It gives hope that those who do not accept their sovereign responsibilities will be taken to task for their transgressions. There are also infinite possibilities available today in the development of a new global network that would help us achieve shared objectives. R2P offers principles that can accelerate humanity’s efforts to pursue those objectives. It also allows us to rally actors including civil 191

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society organisations, transnational institutions, networks of influential groups and individuals – actors not normally considered in the formulation of international law, but often more of a factor than many nation states. They can act as watchdogs and whistleblowers; they are agenda pushers capable of creating international social movements in support of basic human rights. The success of widespread partnerships between non-state actors and governments, along with multilateral organisations, was seen in the tsunami relief programme and the convention to ban landmines. These fluid networks will aid us in escaping our Westphalian nation-state strait-jacket that impedes real progress towards solutions to today’s global risks. There is still work to be done, but we should not undervalue the progress that has been made in such a short period. In 2007, historian and Churchill biographer Sir Martin Gilbert asserted: Since the Peace of Westphalia in 1648, non-interference in the international policies even of the most repressive governments was the golden rule of international diplomacy. The Canadian-sponsored concept of ‘responsibility to protect’ proposed the most significant adjustment to national sovereignty in 360 years.18 Let’s make sure, for the sake of all humanity, that the world makes the most of this historic breakthrough.

Notes 1 Harold Innis, The Bias of Communication, Toronto: University of Toronto Press, 1951. 2 Kofi Annan, ‘Problems Without Passports’, Foreign Policy, 1 September 2002. 3 International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Ottawa: ICISS, 2001, p. viii. 4 UN General Assembly, ‘2005 World Summit Outcome’, A/60/L.1, 20 September 2005, para. 139. 5 UN General Assembly, ‘2005 World Summit Outcome’, A/60/L.1, 20 September 2005, para. 139. 6 Robert C. Johanson (ed.), A United Nations Emergency Peace Service to prevent Genocide and Crimes Against Humanity, New York: World Federalist Movement, 2006. 7 Roger Cohen, ‘African Genocide Averted’, New York Times, 3 March 2008. 8 Global Centre for the Responsibility to Protect, Implementing the Responsibility to Protect: The 2009 General Assembly Debate: An Assessment, New York: Ralph Bunche Institute for International Studies, 2009, p. 6. 9 Permanent Mission of India to the United Nations, ‘Statement by Ambassador Hardeep Singh Puri’, General Assembly Plenary Meeting on Implementing the Responsibility to Protect, New York, 24 July 2009. 10 United Nations High Commissioner for Refugees, ‘Africa Adopts Major Convention to Protect and Assist the Internally Displaced’, News Stories, 23 October 2009. 11 Jeffrey Gettleman, ‘Rape Epidemic Raises Trauma of Congo War’, New York Times, 7 October 2007. 12 Josh Kron, ‘Rwandan Rebels Raped at Least 179 Women in Congo, Humanitarian Officials Say’, New York Times, 23 August 2010. 13 ICISS, The Responsibility to Protect, p. 32. 14 Ramesh Thakur, ‘Should the UN Invoke the “Responsibility to Protect”’, The Globe and Mail, 8 May 2008. 15 ICISS, The Responsibility to Protect, para. 4.20. 16 Jean-Max Bellerive and Bill Clinton, ‘Finishing Haiti’s Unfinished Work’, New York Times, 9 July 2010. 17 Daniel Jonah Goldhagen, Worse Than War, New York: Public Affairs, 2009, p. 516. 18 Sir Martin Gilbert, ‘The Terrible 20th Century’, The Globe and Mail, 31 January 2007.

Bibliography Annan, K., ‘Problems Without Passports’, Foreign Policy, 1 September 2002. Bellerive, J.-M. and Clinton, B., ‘Finishing Haiti’s Unfinished Work’, New York Times, 9 July 2010.

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Making R2P work Cohen, J., ‘African Genocide Averted’, New York Times, 3 March 2008. Gettleman, J., ‘Rape Epidemic Raises Trauma of Congo War’, New York Times, 7 October 2007. Gilbert, Sir M., ‘The Terrible 20th Century’, The Globe and Mail, 31 January 2007. Global Centre for the Responsibility to Protect, Implementing the Responsibility to Protect: The 2009 General Assembly Debate: An Assessment, August 2009. Goldhagen, D. J., Worse Than War, New York: Public Affairs, 2009. Innis, H., The Bias of Communication, Toronto: University of Toronto Press, 1951. International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, Ottawa: The International Development Research Centre, 2001. Johansen, R. C. (ed.), A United Nations Emergency Peace Service to Prevent Genocide and Crimes against Humanity, New York: World Federalist Movement, 2006. Kron, J., ‘Rwandan Rebels Raped at least 179 Women in Congo, Humanitarian Officials Say’, New York Times, 23 August 2010. Permanent Mission of India to the United Nations, ‘Statement by Ambassador Hardeep Singh Puri’, General Assembly Plenary Meeting on Implementing the Responsibility to Protect, New York, 24 July 2009. Thakur, R., ‘Should the UN Invoke the Responsibility to Protect’, The Globe and Mail, 8 May 2008. United Nations Commission for Refugees, ‘Africa Adopts Major Convention to Protect and Assist the Internally Displaced’, News Stories, 23 October 2009. United Nations General Assembly, ‘2005 World Summit Outcome’, A/60/L.1, 20 September 2005.

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PART III

THE VIEW FROM OVER HERE

15 PAPER TIGER OR PLATFORM FOR ACTION? South Asia and the Responsibility to Protect Sarah Teitt

The anti-Sri Lanka campaign will accelerate next year as Sri Lanka makes headway in the struggle to overcome the Tigers. The West, preceded by the Western-dominated media, will howl about a ‘humanitarian crisis’, and brandish the policy of R2P (‘Responsibility to Protect’) at us as we close in on Prabhakaran’s bunker. However, in our case R2P is ultimately something of a paper tiger. It works in a context such as the former Yugoslavia, a country put together in the post-war years from the most diverse components (in bold, laudable experiment by Tito). Sri Lanka is not a failed or failing state.1 Former Sri Lankan Ambassador to the UN in Geneva, Dayan Jayatilleka Dictators must be aware that the days of non-accountability are over. Human rights are not a matter of domestic concern. They are elevated to a matter of international concern and international community should ensure that those rulers who abuse grossly human rights or fail to protect their own people from genocide or crimes against humanity must be put on trial for justice.2 Former Bangladeshi Ambassador to the UN in Geneva, Barrister Harun ur Rashud

South Asia is a region plagued by episodes of violent internal and cross-border conflict that have been accompanied by high levels of displacement and, at times, indiscriminate attacks on civilians and widespread human rights abuses. Weak national institutions, limited regional security cooperation and resistance to international engagement in internal and regional crises hamper efforts to protect South Asian populations from mass atrocity crimes. Yet, paradoxically, South Asian states are among the top troop contributors to United Nations peacekeeping operations that are mandated to protect at-risk civilian populations and assist in post-conflict peacebuilding to, among other things, restore the rule of law, support democratic institutions and protect and promote human rights.3 For these reasons—the history and continued risk of atrocities in South Asia coupled with the significant role of South Asian states in protecting civilians under the auspices of UN peacekeeping—it is worth exploring South Asian perspectives on the Responsibility to Protect (R2P) to understand the relevance of R2P to conflicts in the region, and the South Asian states’ policy toward UN efforts to prevent and respond to egregious attacks on civilians and grave human rights violations. 197

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This chapter seeks to give a bird’s eye view of the position of South Asian states on R2P, and their role in shaping the contour of the norm. It asks three basic questions: where do South Asian states stand on R2P, and have their positions changed over time? And, as a follow on, what are the prospects for deepening South Asian engagement—either at the state, regional or UN level—in the Secretary General’s effort to ‘implement’ R2P? The chapter proceeds in three parts: first, it offers an overview of individual South Asian states’ positions on R2P, followed by an assessment of areas of resistance and contestation, as well as consensus and compromise. It concludes by highlighting opportunities and challenges for engaging individual states and the region in the broad policy framework developing at the UN to translate R2P ‘from words to deeds’. But first, a word on scope and definitions. Although Bhutan, the Maldives, Nepal and Afghanistan are members of the South Asia Association for Regional Cooperation, and Iran is often included under the ambit of ‘South Asia’, this chapter addresses the positions of India, Pakistan, Bangladesh and Sri Lanka. In this respect, the chapter aims to be indicative of certain South Asian states’ receptiveness to R2P rather than a comprehensive analysis of state and regional policies. The chapter purposefully adopts a country-by-country, rather than regional, approach to understanding South Asian perspectives on R2P. The assumption underlying this analysis is that regions are ‘social constructs that are rooted in political practice’ rather than merely a consequence of geographic proximity.4 To assess South Asia as a region—and indeed to speak of a South Asian regional perspective on or response to R2P—requires political structures that reflect and shape the strategies of governments to manage established patterns of interdependence across a broad range of related issues. Given that member states deliberately limit the South Association for Regional Cooperation’s mandate to only address socio-economic issues, and are reluctant to commit to even extremely limited mechanisms and structures for political and security cooperation, this chapter takes as the starting point that a ‘South Asian perspective’ is necessarily understood as a comparative analysis of the position and policies of individual states rather than an analysis of ‘regional’ policies per se. As for R2P, as agreed by UN member states at the 2005 World Summit, the R2P principle rests on three equally important and non-sequential ‘pillars’. First, the responsibility of the state to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity, and from their incitement. Second, the international community’s duty to assist the state to fulfil its responsibility to protect. Third, the international community’s responsibility to take timely and decisive action, through peaceful diplomatic and humanitarian means and, if that fails, other more coercive means, in a manner consistent with the UN Charter, in situations where a state is manifestly failing to protect its population from the four crimes.5 Should a state manifestly fail in its responsibility, the various bodies of the UN in partnership with relevant regional arrangements have a responsibility to use whatever means they determine as necessary and appropriate. Significantly, all measures should be consistent with the UN Charter. In April 2006, the UN Security Council reaffirmed R2P in Resolution 1674 on the protection of civilians in armed conflict and indicated its readiness to adopt appropriate measures where necessary.6 The Security Council again endorsed R2P in Resolution 1894 (11 November 2009).7

South Asia and R2P The following section provides an overview of the positions of India, Pakistan, Sri Lanka and Bangladesh on R2P, and how these positions have changed since the International Commission on Intervention and State Sovereignty (ICISS) introduced the term ‘responsibility to protect’ in its final report in 2001.8 The purpose is to provide a snapshot of how South Asian states have 198

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contested, and in turn limited, R2P, and to offer a preliminary analysis of the nature of their opposition and compromise.

India The Indian reception to ICISS was anything but warm. When the Commission visited New Delhi in June 2001 for one of its 11 regional roundtables to seek consensus on the question of when it is justified to resort to military force for the purpose of human protection, India was so adamantly opposed to humanitarian intervention that the External Affairs Ministry sent only its protocol officer to attend the consultation, which was hosted by the Swiss ambassador.9 In many respects, India’s resistance to even discuss the issue ran counter to its own historical record of intervention, and humanitarian justifications thereof. The ICISS background research report, for example, highlighted India’s military action in East Pakistan in 1971, which brought an end to widespread atrocities against the Bengali population, as part of its historical record of humanitarian intervention.10 Again in 1987, India took action to assist civilians under siege in South Asia during one of the bloodiest periods of the Sri Lankan civil war. India’s Prime Minister Rajiv Gandhi dispatched a small flotilla of fishing boats bearing Red Cross flags with humanitarian aid and relief supplies to Tamils under attack in the Jaffna peninsula. The Sri Lankan army turned back the vessels, which prompted PM Gandhi to order the Indian Air Force to drop food and relief supplies to the beleaguered population—a move that Sri Lanka denounced as a ‘naked violation’ of its independence and sovereign airspace.11 India responded that it was compelled to authorise the airdrop of ‘humanitarian assistance’ on account of the ‘continuing deteriorating of the conditions of the civilian population’, which it deemed to be a ‘legitimate concern to India and a threat to peace and security in the region’.12 Given India’s strategic interests involved in both cases, it would be difficult to make a convincing argument that New Delhi was acting primarily on humanitarian considerations as opposed to national security priorities. Nevertheless, in light of India’s repeated reference to the dire plight of civilians and the need to take life-saving action during these periods, it is likewise difficult to argue that India was completely unmoved by the suffering of local populations, or that India’s decisions to intervene were seriously constrained by a deference to sovereignty and non-interference. Despite this record, India adopted a distinctly defensive human rights posture in the 1990s. In international settings, New Delhi consistently criticised the Western powers’ usurpation of the international human rights regime to take ‘unfair and intrusive’ action against developing countries, and vehemently opposed ‘legally suspect theories of the right of intervention on humanitarian grounds’.13 This line of argument rendered India unwilling to actively participate in ICISS consultations, and later opposed to efforts to seek an official UN endorsement of R2P at the 2005 World Summit. India spared no effort to register its staunch opposition to R2P in the UN reform process. In response to Secretary-General Kofi Annan’s endorsement of R2P in his report In Larger Freedom, India’s Ambassador Nirupem Sen warned that the UN was at risk of promoting ‘the ideology of some kind of “military humanism”’, and asserted that R2P should not be ‘used as a cover for conferring any legitimacy on the so-called “right of humanitarian intervention”’.14 India later launched an ‘eleventh-hour attack’ on the proposed paragraphs on R2P in the draft Outcome document, which Alex Bellamy regards as the ‘most dangerous’ attempt to undermine the endorsement of R2P at the World Summit.15 Following the circulation of the draft, Sen ‘launched a broadside against R2P, challenging its legal status and moral foundations’, and argued that the label ‘responsibility to protect’ was ‘patronising and offensive’.16 When negotiations on alternate labels failed to mollify Sen, Allan Rock, then Canadian ambassador to the 199

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UN, requested Canada’s Prime Minister Paul Martin to take the issue up directly with his Indian counterpart, Prime Minister Manmohan Singh. Whether Singh would have proven more amenable is left to conjecture: the provisional R2P paragraphs made it into the final draft of the Outcome document without India’s express approval—reportedly a decision made while Singh was out of contact whilst in transit to the Summit.17 India’s resistance to R2P resurfaced in 2007, when Secretary-General Ban Ki-moon proposed to allocate UN resources to consolidate the 2005 R2P commitment. Ban’s proposal sought to change the title of the Office of the Special Adviser on the Prevention of Genocide (OSAPG) to ‘Genocide and Mass Atrocities’ and appoint a Special Adviser on the Responsibility to Protect. India and Pakistan were amongst the most outspoken critics of the proposal, asserting that the 2005 commitment did not provide the mandate for Ban’s request. India’s Nagesh Singh asserted that the proposed appointment was ‘premature and without any legitimate mandate’, and indicated that India would oppose the request without further consideration of R2P by the General Assembly.18 India and like-minded delegations managed to block Ban’s request in the Fifth Committee (Administrative and Budgetary), which meant that the OSAPG would maintain its strict focus on genocide, and the SecretaryGeneral’s Special Adviser on R2P, Edward Luck, would not receive an official UN salary or office. Ban nevertheless remained determined to consolidate consensus on R2P, and issued the report Implementing the Responsibility to Protect in January 2009.19 A date was set in July to hold the first GA debate on R2P since the World Summit. The president of the General Assembly, Nicaragua’s Father Miguel d’Escoto Brockmann, himself a determined R2P sceptic, nominated Sen, who Allan Rock and Lloyd Axworthy characterise as ‘one of the most hard-line R2P holdouts during the 2005 negotiations’ as his Special Adviser on R2P.20 Sen approached the 2009 debate with the same resistance as he had demonstrated in 2005. The president of the General Assembly issued a concept note in the lead-up to the debate, which implied that R2P found its roots in colonialism and interventionism, and that atrocities were best prevented through reform of international economic institutions and the Security Council.21 It further questioned the discretion of the Security Council in dealing with internal conflicts, and argued that the Council’s commitment to address situations on a case-by-case basis was ‘totally different from the consistent alleviation of suffering embodied in the responsibility to protect’.22 The concept note was effectively arguing that the Security Council should not be expected to adopt consistent responses to grave breaches of international humanitarian and human rights law, particularly in internal conflicts. Civil society groups speculate that Sen was the primary author of the concept note, and that he helped spark d’Escoto’s intention to roll back the 2005 World Summit R2P endorsement.23 Despite fears that India would prove as resistant as it had in 2005, there were signs that Sen no longer represented New Delhi’s position. In early 2009, Sri Lankan forces sought an end to the decades-long war against the Liberation Tigers of Tamil Eelam (LTTE). John Holmes, then United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief, cautioned that the confrontation between state and LTTE forces could result in a ‘bloodbath’ for local Tamil populations.24 In response to growing concerns for locals trapped in the crossfire, in February India indicated its willingness to facilitate the evacuation of civilians and deliver humanitarian relief supplies, in a similar operation as it had conducted in Jaffna in 1987.25 Then, in April, as fighting intensified and reports of indiscriminate attacks on civilians surfaced, India’s Minister of External Affairs, Pranab Mukherjee, issued a statement asserting: ‘These killings must stop. The Sri Lankan Government has a responsibility to protect its own citizens. And the LTTE … must stop its barbaric attempt to hold civilians hostage.’26 Mukherjee’s reference to 200

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R2P was noteworthy, as it signified that calls for upholding R2P were coming not just from civil society advocates and Western leaders, but also from a state that had once denounced the principle as an illegitimate platform for unwarranted interference in the domestic sphere of sovereign states. Gareth Evans, a key R2P proponent who helped devise the concept, highlighted Mukherjee’s reference to R2P as evidence that ‘states who were last to join the consensus in 2005, and have been most resistant since in expressing support for the concept, have now very definitely changed course’.27 While India’s defence of Sri Lanka in the Human Rights Council special session directly after the cessation of hostilities suggests that India referenced R2P less as a call for international intervention than a reminder to Colombo to exercise restraint, the foreign minister’s comment nevertheless augured a notable softening of India’s position on R2P later witnessed in the UNGA debate on R2P in July 2009.28 India’s much more constructive position on R2P in 2009 was reflected in Ambassador Hardeep Singh Puri’s endorsement of the protection of citizens as ‘one of the foremost responsibilities for every State’.29 Avowing that ‘sovereignty as responsibility’ is a ‘defining attribute of nationStates’, Puri highlighted that safeguards for the fundamental protection of human rights are a ‘cardinal obligation’ under the Indian Constitution, and pointed to the Genocide Convention and the entire human rights regime to clarify a set of extensive obligations and accountability mechanisms for states to their citizens.30 Despite noting that the ‘right to life is one of the rights from which no derogation is permitted, even in time of emergency’, India’s burgeoning support for R2P was nevertheless cautious. Puri again voiced India’s concern over the misuse of R2P as a pretext for humanitarian intervention or unilateral action, and maintained that adopting a definition of aggression under the Rome Statute could mitigate concerns over the abuse of R2P to justify illegitimate interventions. India reiterated that past inaction in the face of atrocities was not due to lack of warning but to strategic, political and economic calculations, and suggested that reform of the Security Council to ‘reflect contemporary realities’ was necessary to overcome the deficit in political will.31 India’s stance on R2P, by inference, was linked to its bid for a permanent seat on the UN Security Council. Further evidence of India’s more open policy on R2P was witnessed in 2010. In December, Secretary-General Ban Ki-moon once again submitted a proposal to the General Assembly’s Fifth Committee for budget approval for positions dedicated to R2P, and sought to link R2P with the mandate of the OSAPG through the creation of a ‘Joint Office’ on R2P and genocide prevention. Arguing again that Ban enjoyed no GA authorisation for this move, Venezuela forwarded an ‘anti-R2P’ amendment that sought to edit out any reference to the four R2P crimes within the mandate of the OSAPG (in effect, undercutting efforts to ‘demystify genocide’ and include mass atrocities in the prevention work of the office). Rather than side with these arguments as it had done when similar resistance quashed the SG’s proposal in December 2007, India was among a half-dozen countries from the Asia Pacific that voted against the amendment (along with Australia, Singapore and East Timor).32 India’s position here, as well as in the 2009 debate and Foreign Minister Mukherjee’s reference to R2P in relation to the Sri Lankan conflict, support the perception that consensus is consolidating around the UN endorsement and implementation of R2P, with New Delhi—at least cautiously—on board.

Pakistan Like India, Pakistan registered its objection to R2P early in the UN reform process. Pakistan argued that by endorsing R2P in his recommendations to the General Assembly on UN reform, Secretary-General Kofi Annan was steering the UN down an undemocratic, ‘interventionist path’ in which the opinions of big and powerful states would override small and weaker ones in 201

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determining when and where the international community would intervene to protect at-risk populations. Pakistani Ambassador Munir Akram further attested that R2P was based on a false premise that the failure to act in Rwanda and Srebrenica was due to ‘the absence of an interventionist doctrine’ rather than a deficit of political will—a point that India has since echoed.33 On these grounds, Pakistan posited that R2P was not only illegitimate, but irrelevant and redundant: it promised little for summoning the collective will to take action, and international humanitarian law already provides the platform for curtailing gross violations of human rights and genocide.34 Although Pakistan did not take a leading role in opposing the endorsement of R2P at the World Summit, Pakistan’s representative, Imtiaz Hussain, later denied that any consensus had been reached and sought to block Secretary-General Ban’s 2007 efforts to include ‘mass atrocities’ in the mandate of the OSAPG and appoint a special adviser on R2P. In a similar argument forwarded by his Indian counterpart, Hussain contended that the SG had no grounds for his request, as there was no clear definition for ‘mass atrocity’ from which to derive a mandate, and the General Assembly had reached no agreement on R2P.35 To appoint a special adviser on R2P, therefore, ‘was in clear violation of the decision at the summit level and needed further deliberation’.36 By arguing that there was no consensus from which to draw a mandate, Pakistan was in effect denying that governments had reached an agreement to endorse R2P at the 2005 World Summit. Pakistan continued to resist the principle in 2009, but with a more tempered approach. Rather than deny that the General Assembly had indeed endorsed R2P in 2005, Pakistan affirmed the SG’s three-pillar approach to understanding and implementing the principle. However, Islamabad’s support fell heavily in favour of recognising and fostering state capacity to protect, and providing international assistance to prevent the onslaught of atrocities, rather than a timely and decisive response to ongoing or imminent crises. In spite of the attention the SecretaryGeneral paid to peaceful, diplomatic and humanitarian response mechanisms, and the clear endorsement of enforcement measures only with the authorisation of the Security Council, Pakistan insisted: ‘Pillar three is the right of intervention, no matter how one looks at it.’37 Ambassador Abdullah Hussain Haroon stated: ‘Pillar three was introduced 10 or 15 years ago under another name—the right of intervention. It is that and remains that. The Assembly voted vehemently against it. Today it has reappeared, albeit with a much larger spectre.’38 On that point, Pakistan emphasised that R2P ‘should not become a basis either for contravening the principles of non-interference and non-intervention or for questioning the national sovereignty and territorial integrity of any State’.39 A year later, when the General Assembly held a dialogue on the 2010 SG report on Early Warning, Assessment and the Responsibility to Protect, Pakistan joined some of the most notable R2P detractors—Cuba, Iran, Nicaragua, Venezuela and Sudan—in asserting that the Secretary-General’s proposed early warning mechanism lacked accountability and a proper mandate. Claiming that ‘an important outcome’ of the 2009 debate was the ‘legal ambiguity of the concept of R2P and continuing double standards of the international system’, Pakistan objected to the institutionalisation of an early warning and assessment mechanism until the General Assembly could come to terms with the ‘flawed legal basis of the concept itself’.40 Pakistan’s resistance to R2P in the General Assembly is, to a certain extent, curiously at odds with its position on robust peacekeeping and the protection of civilians in armed conflict (POC). Pakistan is the largest troop contributor in some of the most challenging peacekeeping environments (in Democratic Republic of the Congo, Sudan, Liberia and Cote D’Ivoire, for example), a policy it notes as evidence of its commitment to multilateral security for civilian protection in relevant Security Council debates. For example, in a POC debate leading to the 202

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adoption of Resolution 1674 (which affirmed R2P), Pakistan made note of the 2005 R2P commitment and stated: Collective action and multilateral solutions to today’s conflicts offer the best hope for millions of civilians who are trapped between death and despair. We must not fail in responding to this challenge. We must act boldly in all situations where the survival of millions of civilians caught in the vise [sic] of violence and war is threatened.41 Given that Pakistan objects to R2P on the basis of selectivity, double standards and what it argues to be the expanding (illegitimate) authority of the Security Council, it is curious that it adopts a relatively amenable position on POC in peacekeeping missions that are susceptible to similar critique. Part of the discrepancy in Islamabad’s position may be attributed to Pakistan’s continual association of R2P with unilateral action outside the Security Council. However, given the lengths to which the Secretary General and other R2P proponents have gone to firmly anchor R2P in the UN Charter—and therefore authorisation of the UN Security Council—it seems that Pakistan’s resistance to R2P is, at least in part, motivated by concerns over international scrutiny of its own internal security situation. In the 2010 Secretary-General reports on Protection of Civilians, for example, Pakistan vehemently objected to being ‘bunched together’ with Gaza, Sri Lanka, the Democratic Republic of the Congo, Afghanistan and Somalia—all of which are (or ought to) concern R2P—for the thousands of civilian dead and displaced as a result of conflict.42 Pakistan argued that the reference to its own situation was unwarranted because it was not experiencing an internal armed conflict, but was taking ‘exceptional’ action against the ‘miscreants creating world terror’ in Swat and South Waziristan.43 When the second consecutive Secretary-General report expressed concern over the lack of humanitarian access, violations of international humanitarian law and attacks on journalists, Pakistan maintained: ‘The report contains unwarranted and unacceptable references to Pakistan, for which there is no justification whatsoever.’44 It stands to reason that Pakistan’s resistance to R2P could be tied up in allegations against its own counterterrorist military operations’ indiscriminate and disproportionate attacks on civilians—which could constitute war crimes.45 The link between resistance to R2P and domestic counterterrorist measures is even clearer in the case of Sri Lanka.

Sri Lanka Despite numerous instances of indiscriminate and widespread attacks on civilians in the course of its two-decade protracted civil war, Sri Lanka was not a notably vocal opponent of R2P until Gareth Evans visited Colombo in July 2007 to deliver the lecture ‘The Limits of State Sovereignty: The Responsibility to Protect in the 21st Century’ at the International Centre for Ethnic Studies (ICES). In his speech, Evans characterised the Sri Lankan conflict as an ‘R2P situation’ that demanded preventive action by the government with support from the international community.46 Evans assured that his assessment was not due to ongoing or imminent large-scale atrocities, but was offered as a word of caution that the situation was ‘capable of deteriorating to that extent’ because ‘[t]he rhetoric and threats from both sides are increasingly dire and suggest the next round of fighting could well be extreme even by Sri Lanka’s standards’.47 The head of the Secretariat for Coordinating the Peace Process, Rajiva Wijesinha, responded almost immediately with a point-by-point rebuttal as to whether any of the four R2P crimes applied to the situation at the time, and concluded that the speech was ‘excessively alarmist’ and failed to take into account that the Sri Lankan government was engaged in a struggle to root out violent domestic terrorists.48 The government proceeded to remove Rama Mani from her post as executive 203

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director of the host institution, revoked her visa and immediately ground to a halt negotiations underway for ICES to become an associate centre of the Global Centre for the Responsibility to Protect. The incident spurred a flurry of commentary in state-run media denouncing the merits and applicability of R2P to the situation in Sri Lanka.49 Sri Lanka’s resistance became further entrenched in proportion to mounting international concern over the government’s determination to eradicate the LTTE at all costs. In October 2007 the United Nations High Commissioner for Human Rights, Louise Arbour, visited Sri Lanka to, among other things, express concern over alleged human rights abuses and press the government of Sri Lanka to allow the Office of the High Commissioner for Human Rights (OHCHR) to open a local field office. Commentators in official state media linked the proposed field presence to R2P, and labelled the initiative as a ‘diabolical project’ to turn the OHCHR into ‘an intelligence gathering arm in the name of “humanitarian intervention”’.50 Arbour’s concern over the deteriorating security situation was validated at the end of the year, when, speaking in his private capacity but published in state-run media, Sri Lanka’s ambassador to the UN in Geneva, Dayan Jayatilleka, called for a final victory in the war and extolled the ability of a ‘decisive and homogeneous majority’ and ‘militant youth population’ to rebuff international action under R2P.51 Thus, at the end of 2008, Sri Lanka’s leaders appeared primed to deflect international criticism under R2P for the humanitarian crisis that would ensue. Less than a month later, Sri Lanka abolished the 2002 Norwegian-brokered ceasefire with the aim of finally defeating the LTTE. Human rights advocates and monitors, Arbour not least among them, warned that intensified attacks could have a devastating impact on Sri Lankan civilians.52 When delegates expressed concern over human rights violations in Sri Lanka and made reference to R2P at the Eighth Session of the United Nations Human Rights Council in June 2008, Ambassador Jayatilleka once again expressed Sri Lanka’s determination to resist international involvement. Contending that R2P ‘is invoked in the loosest of senses’, Jayatilleka warned ‘[i]f any misguided parties attempt to invoke the Responsibility to Protect in relation to Sri Lanka outside of that Security Council, well, they must be prepared for a full spectrum of resistance by the Sri Lankan people and State who’ll defend their sovereignty by any means necessary’.53 Sri Lanka’s resolve—and adept opposition to R2P—only hardened in early 2009 as the conflict escalated with an estimated 150,000 civilians trapped in a small corridor between state and LTTE forces, purportedly serving as human shields for the LTTE and subjected to the mortar fire of the Sri Lanka military.54 As the suffering of civilians worsened, in April R2P advocates began to call on the Security Council to invoke R2P to authorise timely and decisive measures to prevent and halt alleged indiscriminate, deliberate attacks and secure humanitarian access.55 The Sri Lankan government resisted efforts to add the situation to the Council’s agenda, denied allegations of war crimes and later refused international investigation of the alleged attacks.56 Sri Lankan Foreign Minister G. L. Peiris later labelled the investigation into alleged war crimes on both sides as an ‘unfair’, ‘oppressive’ effort to ‘harass’ Sri Lanka in a manner that was ‘repugnant to the basic values and principles that are enshrined in the UN system’.57 The 2009 General Assembly debate on R2P came just months after Sri Lanka declared a final victory over the LTTE. Whilst Sri Lanka did not negate the legal foundations for R2P as Pakistan had, it questioned the biased nature and double standards of who decides and what indicators determine that a situation is a matter of R2P concern. In cautioning against the misapplication of R2P, Sri Lanka implicitly justified the irrelevance of R2P to its crackdown on the LTTE, however indiscriminate: There may be situations in which the democratically elected Government of a State seeks to exercise its primary R2P to save its people from a massive hostage situation 204

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created by a terrorist group for bargaining purposes by the decisive use of legitimate force. This very action could sometimes be perceived as a potential situation for an R2P intervention, whether preventive or reactive, whereas, ironically, the terrorist action that was the source of the problem should have been the candidate for preventive action. … Is counterterrorism action to save civilians from a terrorist human shield or a counterdrug-cartel operation to save regional governance a candidate for R2P?58 Even where it is deemed applicable, Sri Lanka challenged that R2P does not imply an ‘automatic trigger for intervention’, and is best approached ‘as a concept aimed at promoting cooperation for peace and prosperity through consensual preventive measures’.59 Like both India and Pakistan, Sri Lanka stressed that the state is the ‘cornerstone’ of R2P, and the international community’s role is to offer assistance with the consent of the government only when a state manifestly fails to exercise its responsibility to protect.60 Sri Lanka’s resistance to R2P differed from both India and Pakistan insofar as Colombo never denied the World Summit endorsement or the authority of the Security Council in implementing it. Instead, Sri Lanka adopted a two-prong strategy to undermine calls for international action under R2P by (1) laying out a case against the applicability of R2P to its own conflict, and (2) repeatedly reinforcing the role of the Security Council as the final arbiter over a course of action, all the while lobbying sympathetic Council members, most notably China, that the situation was an ‘internal matter’ that had no rightful place on the Council’s agenda.61

Bangladesh Whereas other South Asian states have resisted UN endorsement and implementation of R2P, Bangladesh was integral in negotiations to include R2P in the World Summit outcome document. Months before the Summit, the president of the General Assembly, Jean Ping of Gabon, appointed a group of ten facilitators to assist in drafting the proposed Outcome document. Ping assigned Slovenian Ambassador Roman Kirn and Bangladeshi representative Iftekhar Ahmed Chowdhury the task of negotiating the paragraphs on R2P.62 Chowdhury has since recounted his tireless effort to reach a compromise between Western and developing states, and accounted the successful adoption of the paragraphs on R2P among his noteworthy accomplishments in his time as Bangladeshi ambassador to the UN.63 Following the Summit endorsement, Bangladesh continued to voice support for R2P through, for example, statements in the Security Council referencing R2P as a ‘policy framework’ for the effective promotion and protection of human rights of women and girls in conflict and post-conflict situations.64 Chowdhury later joined efforts to bring together ‘some of the strongest supporters’ of R2P to prevent backsliding on the 2005 commitment in the lead-up to the 2009 General Assembly debate.65 Since Chowdhury’s departure from the UN mission, Bangladesh has remained engaged in debates but has been less proactive in promoting R2P. Key among Bangladesh’s concerns is for R2P to be a platform to address the root causes of mass atrocities rather than simply a rallying cry for enforcement action ‘after the global community has allowed that State to slide into chaos’.66 On that basis, Bangladesh stresses that equal importance should be paid to pillars one and two, which would require states to honour aid commitments that specifically target the root causes of extreme violence that relate to poverty, weak governance institutions, absence of the rule of law and the disempowerment of vulnerable groups.67 Bangladesh called for the development of a preventive framework that would take into account early warning signs and develop appropriate response mechanisms at a very early stage. 205

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South Asian R2P positions: implications What do South Asian positions on R2P reveal about the principle and its ability to strengthen atrocities prevention and response mechanisms? The significant reservations of even cautiously engaged states—Bangladesh and, more recently, India—suggest that, despite assertions that R2P has somehow ushered an ‘end’ to mass atrocities ‘once and for all’,68 there is still a long way to go before the aspiration of R2P to summon the collective will and course of action to halt atrocities becomes a reality. However, the subtle shifts in India’s position on R2P, in particular, challenge the assumption that rising (predominately Asian) powers have, and will continue to, invariably resist the consolidation of emerging norms on the limits of sovereignty in relation to internal conflict and atrocities prevention.69 Moreover, it is worth highlighting that both India and Pakistan denied that consensus on R2P had been endorsed at the World Summit, and therefore refused to allocate UN resources to move the R2P agenda forward prior to the July 2009 GA debate. Thereafter, India, at least, proved more amenable to dedicated positions on R2P within the OSAPG, and both India and Pakistan affirmed that the consensus on R2P was grounded in the World Summit Outcome document. This is significant, insofar as it suggests that the ‘impact’ of R2P is determined by process as much as outcome. That is, the surest way for R2P to provide a platform to ensure that, as Stephen Lewis puts it, ‘no longer can the citizens of a country be sacrificed on the altar of destructive and deadly state behaviour’, is to provide opportunities for open debate in which dissenting voices and opinions are aired rather than subsumed to a ‘consensus’ document.70 The hard-won ground on the international endorsement of R2P is no doubt maintained and strengthened by a transparent and open process that prevents R2P from becoming a hegemonic discourse in which disagreement over the legitimacy and efficacy of intervention is an ‘irresponsible’ position seeking to undermine existing consensus. At the same time, Pakistan’s wholesale rejection of pillar three as merely a guise for humanitarian intervention—a position it shares with notable revisionist states and human rights violators—ought to be taken in stride. The second lesson to be drawn from the position of South Asian states is that, however urgent and exceptional the call for better and surer action to avoid future massacres on the scale of Rwanda or Srebrenica may be, a ‘timely and decisive response’ to atrocities cannot be divorced from other policy agendas and security priorities. India, Pakistan and Bangladesh place particular emphasis on what is perceived to be an over-emphasis on response options rather than development assistance to address the conditions giving rise to atrocities. For Pakistan and Sri Lanka, R2P does not apply as equally to counterterrorism/counterinsurgency as internal armed conflict, in spite of the equally dire toll on civilian populations. In that vein, Sri Lanka and Bangladesh, and to a certain degree Pakistan, have also noted that one of the shortcomings of the R2P framework is that it focuses on state responsibility rather than the responsibility and accountability of nonstate actors who may commit atrocities. For India, R2P is tied to Security Council reform. These issues are not just tangential to moving the R2P commitment from ‘words to deeds’. They suggest that better thinking and more research is needed on what sorts of actions constitute upholding pillars one and two responsibilities; what factors determine that a state is manifestly failing to protect its population and who decides, based on what criteria; how to avoid the moral hazard that states claim to uphold R2P through counterinsurgency and counterterrorist operations; and how the transparency and accountability of decision-making structures relates to norm consolidation and localisation. Finally, the purpose of tracing the positions of South Asian countries on R2P is not just an exercise in highlighting resistance, but to delineate areas of regional consensus and common concern. Although India’s position has softened, Pakistan continues to challenge the legal basis 206

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of R2P, and Bangladesh has noticeably withdrawn from promoting the principle. For its part, Sri Lanka has astutely undercut the leverage R2P might have in mitigating attacks on civilians by denying that the principle bears any relevance to its own counterinsurgency operations or that it, indeed, is exercising its primary responsibility to protect. However, none of the positions canvassed here deny that the GA has endorsed R2P, as India and Pakistan did prior to the 2009 General Assembly debate. All states have reinforced that R2P is grounded in paragraphs 138–40 of the WSOD, and affirmed the Secretary General’s three-pillar approach to interpreting that commitment. In that respect, South Asian states understand the scope of R2P to pertain to genocide, war crimes, ethnic cleansing and crimes against humanity, and stress that states bear the primary responsibility to protect. Additional points of consensus emanating from South Asia centre on:  implementing each ‘pillar’ equally and consistently to reflect that prevention and international assistance is as important as emergency response measures;  exhaustively implementing peaceful, diplomatic and humanitarian measures as an element of pillar three ‘timely and decisive’ action;  ensuring that enforcement measures to uphold R2P when states are manifestly failing to protect conform with the UN Charter, including Security Council authorisation;  ensuring that implementation strategies are transparent with clear criteria to avoid misunderstanding, double standards and selective application. The following section provides preliminary recommendations for further developing these areas of consensus.

Conclusions and recommendations The development of South Asian positions on R2P in the UN is indicative of a trend often witnessed in UN advocacy in which individual conviction is sometimes as important as government policy to build support for new policy and normative frameworks. Although India’s position may have softened due to a recalibration of its foreign policy to carve out an identity as a ‘responsible international stakeholder’, it is hard to think it a mere coincidence that New Delhi’s more constructive engagement on R2P occurred when Sen was no longer India’s ambassador to the UN.71 Likewise, Bangladesh has not maintained its enthusiasm for R2P since Chowdhury’s transition from the mission, despite complementary developments in Dhaka, such as Bangladesh becoming the first South Asian state to ratify the Rome Statute of the International Criminal Court in March 2010. This observation—that who debates an issue may matter as much as the content of the issue being debated—is not novel, but it beckons the question of whether support for R2P will inevitably wax and wane with the tides of time and personnel, or if there are more sustainable strategies for promoting the nascent norm beyond, for example, the engagement of permanent missions of the UN. Indeed, Secretary-General Ban Ki-moon recognises the importance of engaging regional and sub-regional arrangements in consolidating consensus on and implementing R2P, and issued a report on the matter in mid-2011. Admittedly, it is difficult to imagine many avenues for engaging SAARC on R2P. According to the SAARC Charter, the organisation is an arrangement for socio-economic cooperation, which strictly adheres to the principles of sovereignty and non-interference, makes decisions on the basis of unanimity, and excludes ‘bilateral or contentious issues’ from its deliberations.72 These constraints have rendered SAARC ‘notably slow’ to take strides to address interstate conflicts, and have left internal conflicts or widespread human rights abuses in the region almost 207

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entirely absent from the SAARC agenda. Recognising these limitations, a report commissioned by the Stockholm International Peace Research Institute (SIPRI) suggests looking beyond SAARC to, for example, the ASEAN Regional Forum (ARF), of which Bangladesh, India, Pakistan and Sri Lanka are members, as a setting for South Asian states to address security challenges that are closed to the SAARC agenda.73 While the ARF espouses a similar deference to sovereignty and non-intervention, it has taken measures to address such issues as regional cooperation on peacekeeping, post-conflict peacebuilding, humanitarian assistance and disaster relief. Moreover, the ARF receives policy recommendations from the Council for Security Cooperation in the Asia Pacific (CSCAP), a Track II74 mechanism for scholars and officials in their private capacity to discuss and provide policy input on security challenges in the region. CSCAP launched a study group on R2P in 2009 to help clarify the principle and generate recommendations to ‘advance the RtoP agenda while also reflecting regional norms and sensitivities’.75 In the September 2010 meeting, study group delegates discussed potential avenues for region-to-region learning on developing early warning and assessment capabilities, strengthening UN–Asia Pacific dialogue in R2P-related areas, enhancing preventive diplomacy capacities to respond to mass atrocity crimes, and developing standby and standing response capabilities in R2P emergency situations. The CSCAP Steering Committee approved the final report of the study group, which contained twelve recommendations through which states and regional arrangements could implement R2P. Core among these recommendations were proposals for establishing a regional risk reduction centre to provide early warning and assessment of situations at risk of genocide and other atrocities, and creating a regional standing capacity for preventing and responding to these crimes. It is worth exploring options for emulating the CSCAP model of the Track II study group in South Asia to analyse and assess R2P in relation to security cooperation in the region. Track II dialogue in South Asia can provide a ‘second line’ of communication between states to test new policy initiatives or provide analysis and input in policy options for SAARC or national governments.76 A model for such an initiative might stem from regional cooperation on disaster management, which began with a comprehensive regional study on the causes and consequences of natural disasters following the third SAARC Summit in 1987, and proceeded with the establishment of research centres in the region (in Dhaka in 1995, and in Male in 2004). In 2005 India established a regional Disaster Management Centre, and in 2008 SAARC leaders mandated the centre to develop a natural disaster rapid response mechanism to plan and coordinate immediate responses to natural disasters. While the political sensitivities in mass atrocities prevention and response far exceed natural disaster mitigation, there are lessons to be drawn from building support through incremental steps, region-led research initiatives, the establishment of dedicated research centres, forging paths for policy dialogue, developing regional networking plans, appointing national focal points and seeking expert input from major regional conferences. The process was indeed slow and unsteady—nearly two decades in the making and still underway—but the devastating impact of the Indian Ocean tsunami of 2004 and the Pakistani earthquake of 2006 spurred renewed resources and interest. Whether similar conflict-related humanitarian crises in the region would highlight the need for response mechanisms remains to be seen, but encouraging Track II dialogue in the region on, for example, the link between development assistance and atrocities prevention, preventive diplomacy or civilian protection in peace operations, may be a starting point. Finally, a lesson to be drawn from the region is that, while R2P is an agreement among states, civil society advocacy and cultural and ethnic affinity affect how leaders respond to humanitarian crises. India, for example, has long resisted external intervention in South Asia, but has proven willing, as in 1987, to take humanitarian action based on domestic Tamil advocacy networks. For its part, Pakistan seemed most moved to expand its peacekeeping role in 1993, when 208

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Pakistani Prime Minister Nawaz Sharif wrote to Hamil Al Gabid, Secretary-General of the Organization of the Islamic Conference: ‘Since Bosnia-Herzegovina is a member of the OIC, there is a special responsibility of the Muslim countries to take urgent special measures to help the Bosnians in a grave situation which is fast generating into a genocide aimed at exterminating the entire Muslim population of Bosnia.’77 Moreover, civil society activism over a ten-year period was vital in pushing Bangladesh to reactivate its National Human Rights Commission in 2009 and to ratify the Rome Statute in 2010. With this in mind, recent efforts at ‘constituency building’ at the domestic and regional level in Southeast Asia offer potential avenues for consolidating consensus on and deepening commitment to ‘implementing’ R2P in South Asia.78 Judging by the position of South Asian states, consensus is consolidating around the 2005 World Summit endorsement, but there is still a significant degree of resistance to intervention and emphasis is placed, instead, on capacity building and assistance. While internal conflict in Sri Lanka and Pakistan calcified resistance to R2P, India and Bangladesh have demonstrated at least cautious engagement. Understanding areas of resistance and contestation, as well as emerging consensus and common priorities, may determine whether R2P is just a ‘paper tiger’, or an infant norm that will, in time, be the yardstick for appropriate behaviour of states in the realm of atrocities prevention.

Notes 1 Dayan Jayatilleka, ‘60th Year of Independence, Personal Perspective: Make 2008 the Year of Victory!’, The Official Government News Portal of Sri Lanka, 25 December 2007. 2 Harun ur Rashid, ‘Responsibility to Protect or Humanitarian Intervention’, Dhaka Courier-United News of Bangladesh, 7 November 2008. 3 In January 2011, Pakistan, Bangladesh and India were respectively the top three military and police contributors to UN operations, accounting for nearly 30,000 of the 98,837 deployed at the time. South Asian peacekeepers are leading and serving in some of the most challenging peacekeeping environments (e.g. Democratic Republic of the Congo, Cote D’Ivoire, Southern Sudan and Liberia). See http://www.un.org/en/peacekeeping/resources/statistics/ (accessed 23 January 2012). 4 Peter J. Katzenstein, ‘Regionalism and Asia’, New Political Economy 5, no. 3 (2000): 354. 5 A/60/L.1, 20 September 2005, paras. 138–40. See Ban Ki-moon, ‘Implementing the Responsibility to Protect, Report of the Secretary-General’ (United Nations General Assembly, A/63/677, 12 January 2009). 6 S/Res/1674, ‘Protection of Civilians in Armed Conflict’ (United Nations Security Council, 28 April 2006). 7 S/Res/1894, ‘Protection of Civilians in Armed Conflict’ (United Nations Security Council, 11 November 2009). 8 The Responsibility to Protect, (Ottawa: Report of the International Commission on Intervention and State Sovereignty, 2001). 9 Ramesh Thakur, ‘Responsibility to Protect Is Universal’, Daily Yomiuri Online + Associated Press, 17 November 2009. 10 Although India justified its action as a legitimate act of self-defence, Indian representatives in international settings repeatedly referenced the mass suffering of civilians to explain New Delhi’s decision to take action. For one example, in a statement to the Security Council on the matter, India claimed: ‘we have on this particular occasion absolutely nothing but the purest of motives and the purest of intentions: to rescue the people of East Bengal from what they are suffering’. UN Document S/PV.1606, 6 December 1971, cited in ‘The Responsibility to Protect, Background Research: Section B: Past Humanitarian Interventions’, International Commission on Intervention and State Sovereignty, http:// www.iciss.ca/02_Section_B-en.asp#66 (accessed 15 January 2011). 11 Bryan Pfaffenberger, ‘Sri Lanka in 1987: Indian Intervention and Resurgence of the JvP’, Asian Survey 28, no. 2 (1988): 141; Steven R. Weisman, ‘India Airlifts Aid to Tambil Rebels’, New York Times, 5 June 1987. 12 Ibid.

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13 Address by Salman Khurshid, Minister of State for External Affairs and Leader of the Indian Delegation, 52nd Session of the Commission on Human Rights, 20 March 1996, quoted in Sanjoy Banerjee, ed. India’s Human Rights Diplomacy: Crisis and Transformation Policy, Human Rights and Comparative Foreign Policy: Foundations of Peace (United Nations University Press, 2000). 14 ‘Statement by Mr. Nirupam Sen, Permanent Representative, at the Informal Thematic Consultations of the General Assembly on the Report of the Secretary-General Entitled “In Larger Freedom: Towards Development, Security and Human Rights for All” (a/59/2005) (on Cluster Iii Issues: Freedom to Live in Dignity)’, Permanent Mission of India to the United Nations, http://www.un.int/india/ 2005/ind1085.pdf (accessed 23 January 2012). 15 Alex J. Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge: Polity, 2009), p. 88. 16 Ibid. 17 Ibid., p. 90. 18 UN Document GA/AB/3832, ‘Fifth Committee Takes up Financing for Special Political Missions, Procurement Task Force; 11 General Assembly Texts with Budget Implications’ (General Assembly Department of Public Information, 17 December 2007). 19 A/63/677, ‘Report of the Secretary General Implementing the Responsibility to Protect’ (United Nations General Assembly, 12 January 2009). 20 Llloyd Axworthy and Allan Rock, ‘Protecting R2P’, Huffington Post, 23 July 2008. 21 Neil MacFarquhar, ‘When to Step in to Stop War Crimes Causes Fissures’, New York Times, 22 July 2009. 22 A/63/958, ‘Concept Note on the Responsibility to Protect Populations from Genocide, War Crimes, Ethnic Cleansing and Crimes against Humanity, Note by the President of the General Assembly’ (United Nations General Assembly, 9 September 2009), p. 4. 23 ‘Report on the General Assembly Plenary Debate on the Responsibility to Protect’ (International Coalition for the Responsibility to Protect, 15 September 2009), p. 3. 24 John Holmes, ‘Let Them Decide: Civilians Trapped with Tamil Tiger Fighters Must Be Offered an Exit before Bloodbath Ensues’, Guardian, 8 April 2009. 25 ‘Sri Lanka Update Report’, Security Council Report, http://www.securitycouncilreport.org/site/c. glKWLeMTIsG/b.5003025/k.CB5B/Sri_Lanka_br_26_February_2009.htm. 26 Fang Yang, ‘India Urges Immediate Stop to Killings of Innocent Civilians in Sri Lanka’, Xinhua 23 April 2009. 27 Gareth Evans, ‘Crimes against Humanity and the Responsibility to Protect’, Address by Gareth Evans, President, International Crisis Group, to Crimes Against Humanity Initiative, Hague Intersessional Experts Meeting Dinner, The Hague (11 June 2009), http://www.crisisgroup.org/en/publication-type/speeches/ 2009/crimes-against-humanity-and-the-responsibility-to-protect.aspx (accessed 23 January 2012). 28 A/HRC/S-11/2, ‘Report of the Human Rights Council on Its Eleventh Special Session, “The Human Rights Situation in Sri Lanka”, 26–27 May 2009’ (United Nations General Assembly, 26 June 2009); ‘Sri Lanka: UN Rights Council Fails Victims’, Human Rights Watch, http://www.hrw.org/ en/news/2009/05/27/sri-lanka-un-rights-council-fails-victims (accessed 23 January 2012). 29 A/63/PV.99, ‘Generaly Assembly 2009 Interactive Dialogue on the Responsibility to Protect’ (United Nations General Assembly, 24 July 2009), pp. 24–25. 30 Ibid., pp. 24–25. 31 Ibid., pp. 24–26. 32 ‘Acabq and Fifth Committee Negotiations on the Joint Office’, Global Centre for the Responsibility to Protect, http://www.responsibilitytoprotect.org/GCR2P%20Report%20–ACABQ%20and%20fifth% 20Committee%20negotiations%20on%20the%20Joint%20Office.pdf (accessed 2 Feburary 2011), p. 7. 33 UN Document A/59/PV.86, ‘General Assembly Debate on the Report of the Secretary-General “In Larger Freedom: Towards Development, Security and Human Rights for All” (a/59/2005)’ (United Nations General Assembly, 6 April 2005), pp. 4–5. 34 Ibid. 35 UN Document GA/AB/3832, ‘Fifth Committee Takes up Financing for Special Political Missions’. 36 Ibid. 37 A/63/PV.98, ‘Generaly Assembly 2009 Interactive Dialogue on the Responsibility to Protect’ (United Nations General Assembly, 24 July 2009), p. 4. 38 Ibid., p. 3. 39 Ibid., p. 3.

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Paper tiger or platform for action? 40 ‘Pakistan’s Intervention During Interactive Dialogue on “Early Warning, Assessment and Responsibility to Protect”’, http://www.responsibilitytoprotect.org/Pakistan%20–Statement%20to%20the%20dialogue% 20on%20early%20warning%20and%20RtoP.pdf (accessed 21 January 2011). 41 S/PV.5319 (Resumption 1), ‘Security Council Open Debate on Protection of Civilians in Armed Conflict’ (UN Security Council Verbatim Record, 9 December 2005), p. 15. 42 S/PV.6354 (Resumption 1), ‘Security Council Open Debate on Protection of Civilians in Armed Conflict’ (UN Security Council Verbatim Record, 7 July 2010), p. 18. 43 Ibid., p. 18. 44 S/PV.6427 (Resumption 1), ‘Security Council Open Debate on Protection of Civilians in Armed Conflict’ (UN Security Council Verbatim Record, 22 November 2010), p. 16. 45 Niaz A. Shah, ‘War Crimes and the Armed Conflict in Pakistan’, Studies in Conflict & Terrorism 33, no. 4 (2010): 283–306; Chris Rogers, ‘Civilian Casualties Ignored in Pakistan’, Huffington Post, 26 March 2010, http://www.huffingtonpost.com/chris-rogers/civilian-casualties-ignor_b_514229.html (accessed 16 January 2011); ‘Pakistan: Avoid Civilian Casualties – Taliban Atrocities No Excuse for Abuses by Military’, Human Rights Watch, http://www.hrw.org/en/news/2009/05/11/pakistan-avoid-civiliancasualties (accessed 23 January 2012); ‘UN Agencies Concerned over “Massive Displacement” in Pakistan’, UN New Centre, http://www.un.org/apps/news/story.asp?NewsID=30743&Cr=pakistan& Cr1 (accessed 23 January 2012). 46 Gareth Evans, ‘The Limits of State Soveregnty: The Responsibility to Protect in the 21st Century’, Eighth Neelan Tiruchelvam Memorial Lecture, International Centre for Ethnic Studies, Colombo, http://www. gevans.org/speeches/speech232.html (accessed 23 January 2012). 47 Ibid. 48 Rajiva Wijesinha, ‘Points of Clarification on International Crisis Group Ceo Gareth Evans’, Neelan Tiruchelvam Memorial Lecture on the Limits of State Sovereignty: The Responsibility to Protect in the 21st Century, http://www.lankamission.org/other%20pages/News/2007/July/2007-07-31SGSCOPP. htm (accessed 23 January 2012). 49 See, for example: G. H. Peiris, ‘The Other Side of R2P’, The Official Government News Portal of Sri Lanka, 16 December 2007, http://news.lk/category-table/4275-the-other-side-of-r2pby (accessed 16 January 2011); Kalana Senaratne, ‘R2P or R2PT? – The “Responsibility to Protect from Terrorism”’, The Official Government News Portal of Sri Lanka, 13 June 2008, http://news.lk/index.php?option= com_content&view=article&id=6155:isnt-there-a-responsibility-to-protect-from-terrorism-r2pt&catid= 27: political&Itemid=583 (accessed 16 January 2011). 50 Tania Noctiummes and Jean-Pierre Page, ‘Louise Arbour’s Diabolical Project’, The Official Government News Portal of Sri Lanka, http://news.lk/home/3668-louise-arbours-diabolical-project (accessed 16 January 2011). 51 Jayatilleka, ‘60th Year of Independence, Personal Perspective’. 52 ‘As Sri Lanka Ceasefire Ends, Top UN Official Urges Respect for Human Rights’, UN News Centre, 15 January 2008. 53 ‘Sri Lanka Will Resist Rogue R2P – Ambassador Jayatilleka’, The Official Government News Portal of Sri Lanka, http://news.lk/news/22-foreign-news/6064-sri-lanka-will-resist-rogue-r2p-ambassadorjayatilleka (accessed 16 January 2011). 54 Alex Bellamy, ‘The Conflict in Sri Lanka and the Responsibility to Protect’, e-International Relations, http://www.e-ir.info/?p=1053 (accessed 23 January 2012). 55 ‘Open Letter to the Security Council on the Situation in Sri Lanka’, Global Centre for the Responsibility to Protect, http://globalr2p.org/media/pdf/OpenLetterSriLanka.pdf (accessed 23 January 2012), ‘The Situation in Sri Lanka: Open Letter to the United Nations Security Council’, Amnesty International, http://www.amnesty.org/en/library/asset/ASA37/009/2009/en/c2f01bbd-f383–84aad-ab54-bc6b82ab 4e87/asa370092009en.pdf (accessed 16 January 2011). 56 ‘War Crimes in Sri Lanka’, International Crisis Group, Asia Report No. 191, 17 May 2010. 57 Charles Haviland, ‘Sri Lankan Foreign Minister Denounces UN Rights Chief’, BBC News, Colombo, 1 June 2010. 58 A/63/PV.100, ‘General Assembly 2009 Interactive Dialogue on the Responsibility to Protect’ (United Nations General Assembly, 28 July 2009), p. 3. 59 Ibid., p. 3. 60 Ibid., p. 3. 61 Matthew Russell Lee, ‘On Sri Lanka in UN Council, China Blocks March 26 Meeting, Vote May Be Called’, Inner City Press, http://www.innercitypress.com/unsri3lanka031909.html (accessed 23 January 2012).

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Sarah Teitt 62 Iftekhar Ahmed Chowdhury, ‘The Sri Lankan Situation and the Principle of the “Responsibility to Protect”’, ISAS Insights No. 61 (Singapore: Institute of South Asian Studies, 30 April 2009): 1–6. 63 Ibid. 64 ‘Statement by H. E. Dr. Iftekhar Ahmed Chowdhury Ambassador and Permanent Representative of Bangladesh to the United Nations at the Open Debate of the Security Council on Women, Peace and Security’ (Permanent Mission of Bangladesh to the United Nations, 27 October 2005). 65 ‘Meeting Summary, United to Support the Responsibility to Protect: Preserving the Spirit of the 2005 Agreement’, Global Centre for the Responsibility to Protect, http://www.responsibilitytoprotect.org/ files/Summary%20Report%20-%20Uniting%20to%20Support%20the%20%20Responsibility%20to%20 Protect.pdf (accessed 23 January 2012). 66 A/63/PV.100, ‘General Assembly 2009 Interactive Dialogue on the Responsibility to Protect’, p. 22. 67 Chowdhury, ‘The Sri Lankan Situation and the Principle of the “Responsibility to Protect”’, p. 5. 68 Gareth Evans, The Responsibility to Protect: Ending Mass Atrocitiy Crimes Once and for All (Washington, DC: Brookings Institution Press, 2008). 69 For an overview of this argument, see David Lewis, ‘The Failure of a Liberal Peace: Sri Lanka’s Counter-Insurgency in Global Perspective’, Conflict, Security & Development 10, no. 5 (2010): 647–72. 70 Stephen Lewis, ‘Opinion Piece by Stephen Lewis Following the Firing of the South African Deputy Minister of Health’, Toronto: The Stephen Lewis Foundation, 15 August 2007, http://dev.stephenlewisfound ation.org/news-resources/news-article?id=3669 (accessed 12 March 2011). 71 Daniel Twining, ‘India’s Relations with Iran and Myanmar: “Rogue State” or Responsibile Democratic Stakeholder?’, India Review 7, no. 1 (2008): 1–37. 72 See Article X(2) of the Charter of the South Asian Association for Regional Cooperation, http:// www.saarc-sec.org/SAARC-Charter/5/ (accessed 23 January 2012). 73 Alyson J. K. Bailes, ‘Regionalism and Security Building’, Regionalism in South Asian Diplomacy (Stockholm: Stockholm International Peace Research Institute, February 2007), p. 10. 74 Track II dialogue refers to non-official, informal opportunities for leading experts, academics, NGOs, retired government officials or officials in their private capacity to, for example, discuss and provide policy input on security and political challenges that may be perceived to be too sensitive for official (Track I, intergovernmental) agendas. 75 ‘Report of the Second Meeting of the Cscap Study Group on the Responsibility to Protect, 20–21 September 2010, Manila, the Philippines’ (Kuala Lumpar: Council for Security Cooperation in the Asia Pacific, 2010). 76 Shantanu Chakrabarti, ‘The Relevance of Track II Diplomacy in South Asia’, International Studies 40, no. 3 (2003): 269–70. 77 Cited in Kaliban Krishnasamy, ‘Pakistan’s Peacekeeping Experiences’, International Peacekeeping 9, no. 3 (2002): 114. 78 Noel M. Morada, ‘ASEAN Responses to the Responsibility to Protect: Challenges, Opportunities, and Constraints’ (Paper presented at the ‘The Responsibility to Protect: From Principle to Practice’ conference organised by the Amsterdam Centre for International Law [ACIL], in cooperation with the European Science Foundation, Linkoping University, Scandic Linkoping Vast, Sweden, 8–12 June 2010).

Bibliography A/63/677. ‘Report of the Secretary General Implementing the Responsibility to Protect’. United Nations General Assembly, 12 January 2009. A/63/958. ‘Concept Note on the Responsibility to Protect Populations from Genocide, War Crimes, Ethnic Cleansing and Crimes against Humanity, Note by the President of the General Assembly’. United Nations General Assembly, 9 September 2009. A/63/PV.98. ‘General Assembly 2009 Interactive Dialogue on the Responsibility to Protect’. United Nations General Assembly, 24 July 2009. A/63/PV.99. ‘General Assembly 2009 Interactive Dialogue on the Responsibility to Protect’. United Nations General Assembly, 24 July 2009. A/63/PV.100. ‘General Assembly 2009 Interactive Dialogue on the Responsibility to Protect’. United Nations General Assembly, 28 July 2009. A/HRC/S-11/2. ‘Report of the Human Rights Council on its Eleventh Special Session, “The Human Rights Situation in Sri Lanka”, 26–27 May 2009’. United Nations General Assembly, 26 June 2009.

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Paper tiger or platform for action? ‘Acabq and Fifth Committee Negotiations on the Joint Office’. Global Centre for the Responsibility to Protect, http://www.responsibilitytoprotect.org/GCR2P%20Report%20 – ACABQ%20and%20fifth% 20Committee%20negotiations%20on%20the%20Joint%20Office.pdf (accessed 2 February 2011). ‘As Sri Lanka Ceasefire Ends, Top UN Official Urges Respect for Human Rights’. UN News Centre, 15 January 2008. Axworthy, Llloyd, and Allan Rock. ‘Protecting R2p’. Huffington Post, 23 July 2008. Bailes, Alyson J. K. ‘Regionalism and Security Building’. In Regionalism in South Asian Diplomacy, Stockholm: Stockholm International Peace Research Institute, February 2007. Banerjee, Sanjoy. ‘India’s Human Rights Diplomacy: Crisis and Transformation Policy’. In Human Rights and Comparative Foreign Policy: Foundations of Peace, edited by David P. Forsythe. Tokyo: United Nations University Press, 2000. Bellamy, Alex. ‘The Conflict in Sri Lanka and the Responsibility to Protect’. E-International Relations, http://www.e-ir.info/?p=1053 (accessed 23 January 2012). ——Responsibility to Protect: The Global Effort to End Mass Atrocities. Cambridge: Polity, 2009. Chakrabarti, Shantanu. ‘The Relevance of Track Ii Diplomacy in South Asia’. International Studies 40, no. 3 (2003): 265–76. Chowdhury, Iftekhar Ahmed. ‘The Sri Lankan Situation and the Principle of the “Responsibility to Protect”’. ISAS Insights No. 61. Singapore: Institute of South Asian Studies, 30 April 2009. Evans, Gareth. ‘Crimes against Humanity and the Responsibility to Protect’. Address by Gareth Evans, President, International Crisis Group, to Crimes Against Humanity Initiative, Hague Intersessional Experts Meeting Dinner, The Hague (11 June 2009), http://www.crisisgroup.org/en/publication-type/speeches/ 2009/crimes-against-humanity-and-the-responsibility-to-protect.aspx (accessed 23 January 2012). ——‘The Limits of State Sovereignty: The Responsibility to Protect in the 21st Century’. Eighth Neelan Tiruchelvam Memorial Lecture, International Centre for Ethnic Studies, Colombo, 29 July 2007, http://www.gevans.org/speeches/speech232.html (accessed 16 January 2011). ——The Responsibility to Protect: Ending Mass Atrocitiy Crimes Once and for All. Washington, DC: Brookings Institution Press, 2008. Haviland, Charles. ‘Sri Lankan Foreign Minister Denounces UN Rights Chief’. BBC News, Colombo, 1 June 2010. Holmes, John. ‘Let Them Decide: Civilians Trapped with Tamil Tiger Fighters Must Be Offered an Exit before Bloodbath Ensues’. Guardian, 8 April 2009. Jayatilleka, Dayan. ‘60th Year of Independence, Personal Perspective: Make 2008 the Year of Victory!’ The Official Government News Portal of Sri Lanka, 25 December 2007. Katzenstein, Peter J. ‘Regionalism and Asia’. New Political Economy 5, no. 3 (2000): 353–68. Krishnasamy, Kaliban. ‘Pakistan’s Peacekeeping Experiences’. International Peacekeeping 9, no. 3 (2002): 103–20. Lee, Matthew Russell. ‘On Sri Lanka in UN Council, China Blocks March 26 Meeting, Vote May Be Called’. Inner City Press, 19 March 2009, http://www.innercitypress.com/unsri3lanka031909.html (accessed 16 January 2011). Lewis, David. ‘The Failure of a Liberal Peace: Sri Lanka’s Counter-Insurgency in Global Perspective’. Conflict, Security & Development 10, no. 5 (2010): 647–71. Lewis, Stephen. ‘Opinion Piece by Stephen Lewis Following the Firing of the South African Deputy Minister of Health’. The Stephen Lewis Foundation, 15 August 2007. MacFarquhar, Neil. ‘When to Step in to Stop War Crimes Causes Fissures’. New York Times, 22 July 2009. ‘Meeting Summary, United to Support the Responsibility to Protect: Preserving the Spirit of the 2005 Agreement’. Global Centre for the Responsibility to Protect, 25 September 2008, http://www. responsibilitytoprotect.org/files/Summary%20Report%20-%20Uniting%20to%20Support%20the%20% 20Responsibility%20to%20Protect.pdf (accessed 16 January 2011). Morada, Noel M. ‘Asean Responses to the Responsibility to Protect: Challenges, Opportunities, and Constraints’. Paper presented at the ‘The Responsibility to Protect: From Principle to Practice’ conference organised by the Amsterdam Centre for International Law (ACIL), in cooperation with the European Science Foundation, Linkoping University, Scandic Linkoping Vast, Sweden, 8–12 June 2010. Noctiummes, Tania, and Jean-Pierre Page. ‘Louise Arbour’s Diabolical Project’. The Official Government News Portal of Sri Lanka, 10 October 2007, http://news.lk/home/3668-louise-arbours-diabolical-project (accessed 10 February 2011). ‘Open Letter to the Security Council on the Situation in Sri Lanka’. Global Centre for the Responsibility to Protect, 15 April 2009, http://globalr2p.org/media/pdf/OpenLetterSriLanka.pdf (accessed 17 January 2011).

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Sarah Teitt ‘Pakistan: Avoid Civilian Casualties – Taliban Atrocities No Excuse for Abuses by Military’. Human Rights Watch, 11 May 2009, http://www.hrw.org/en/news/2009/05/11/pakistan-avoid-civilian-casualties (accessed 9 February 2012). ‘Pakistan’s Intervention During Interactive Dialogue on “Early Warning, Assessment and Responsibility to Protect”’. 9 August 2010, http://www.responsibilitytoprotect.org/Pakistan%20–Statement%20to%20the %20dialogue%20on%20early%20warning%20and%20RtoP.pdf (accessed 20 January 2011). Pfaffenberger, Bryan. ‘Sri Lanka in 1987: Indian Intervention and Resurgence of the JvP’. Asian Survey 28, no. 2 (1988): 137–47. Rashid, Harun ur. ‘Responsibility to Protect or Humanitarian Intervention’. Dhaka Courier-United News of Bangladesh, 7 November 2008. ‘Report of the Second Meeting of the CSCAP Study Group on the Responsibility to Protect, 20–21 September 2010, Manila, the Philippines’. Kuala Lumpur: Council for Security Cooperation in the Asia Pacific, 2010. ‘Report on the General Assembly Plenary Debate on the Responsibility to Protect’. International Coalition for the Responsibility to Protect, 15 September 2009. Rogers, Chris. ‘Civilian Casualties Ignored in Pakistan’. Huffington Post, 26 March 2010, http://www. huffingtonpost.com/chris-rogers/civilian-casualties-ignor_b_514229.html (accessed 16 January 2011). S/PV.5319 (Resumption 1). ‘Security Council Open Debate on Protection of Civilians in Armed Conflict’. UN Security Council Verbatim Record, 9 December 2005. S/PV.6354 (Resumption 1). ‘Security Council Open Debate on Protection of Civilians in Armed Conflict’. UN Security Council Verbatim Record, 7 July 2010. S/PV.6427 (Resumption 1). ‘Security Council Open Debate on Protection of Civilians in Armed Conflict’. UN Security Council Verbatim Record, 22 November 2010. S/Res/1674. ‘Protection of Civilians in Armed Conflict’. United Nations Security Council, 28 April 2006. S/Res/1894. ‘Protection of Civilians in Armed Conflict’. United Nations Security Council, 11 November 2009. Shah, Niaz A. ‘War Crimes and the Armed Conflict in Pakistan’. Studies in Conflict & Terrorism 33, no. 4 (2010): 283–306. ‘Sri Lanka Update Report’. Security Council Report, 26 February 2009, http://www.securitycouncilreport. org/site/c.glKWLeMTIsG/b.5003025/k.CB5B/Sri_Lanka_br_26_February_2009.htm (accessed 5 February 2011). ‘Sri Lanka Will Resist Rogue R2P – Ambassador Jayatilleka’. The Official Government News Portal of Sri Lanka, 5 June 2008, http://news.lk/news/22-foreign-news/6064-sri-lanka-will-resist-rogue-r2p-ambassadorjayatilleka (accessed 18 December 2010). ‘Sri Lanka: UN Rights Council Fails Victims’. Human Rights Watch, 27 May 2009, http://www.hrw. org/en/news/2009/05/27/sri-lanka-un-rights-council-fails-victims (accessed 15 January 2011). ‘Statement by H. E. Dr. Iftekhar Ahmed Chowdhury Ambassador and Permanent Representative of Bangladesh to the United Nations at the Open Debate of the Security Council on Women, Peace and Security’. Permanent Mission of Bangladesh to the United Nations, 27 October 2005. ‘Statement by Mr. Nirupam Sen, Permanent Representative, at the Informal Thematic Consultations of the General Assembly on the Report of the Secretary-General Entitled “In Larger Freedom: Towards Development, Security and Human Rights for All” (a/59/2005) (on Cluster Iii Issues: Freedom to Live in Dignity)’. Permanent Mission of India to the United Nations, 22 April 2005, http://www.un.int/ india/2005/ind1085.pdf (accessed 22 January 2011). Thakur, Ramesh. ‘Responsibility to Protect is Universal’. Daily Yomiuri Online + Associated Press, 17 November 2009. ‘The Responsibility to Protect’. Ottawa: Report of the International Commission on Intervention and State Sovereignty, 2001. ‘The Responsibility to Protect, Background Research: Section B: Past Humanitarian Interventions’. International Commission on Intervention and State Sovereignty, 2001, http://www.iciss.ca/02_Section_ B-en.asp#66 (accessed 10 January 2011). ‘The Situation in Sri Lanka: Open Letter to the United Nations Security Council’. Amnesty International, 2001, http://www.amnesty.org/en/library/asset/ASA37/009/2009/en/c2f01bbd-f383–84aad-ab54-bc6b 82ab4e87/asa370092009en.pdf (accessed 10 January 2011). Twining, Daniel. ‘India’s Relations with Iran and Myanmar: “Rogue State” or Responsibile Democratic Stakeholder?’. India Review 7, no. 1 (2008): 1–37. ‘UN Agencies Concerned over “Massive Displacement” in Pakistan’. UN New Centre, 8 May 2009, http:// www.un.org/apps/news/story.asp?NewsID=30743&Cr=pakistan& Cr1 (accessed 10 February 2011).

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Paper tiger or platform for action? UN Document A/59/PV.86. ‘General Assembly Debate on the Report of the Secretary-General “in Larger Freedom: Towards Development, Security and Human Rights for All” (a/59/2005)’. United Nations General Assembly, 6 April 2005. UN Document GA/AB/3832. ‘Fifth Committee Takes up Financing for Special Political Missions, Procurement Task Force; 11 General Assembly Texts with Budget Implications’. General Assembly Department of Public Information, 17 December 2007. ‘War Crimes in Sri Lanka’. International Crisis Group, Asia Report No. 191, New York, 17 May 2010. Weisman, Steven R. ‘India Airlifts Aid to Tambil Rebels’. New York Times, 5 June 1987. Wijesinha, Rajiva. ‘Points of Clarification on International Crisis Group Ceo Gareth Evans’, Neelan Tiruchelvam Memorial Lecture on the Limits of State Sovereignty: The Responsibility to Protect in the 21st Century’. 31 July 2007, http://www.lankamission.org/other%20pages/News/2007/July/2007-0731SGSCOPP.htm (accessed 13 February 2011). Yang, Fang. ‘India Urges Immediate Stop to Killings of Innocent Civilians in Sri Lanka’. Xinhua, 23 April 2009.

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16 THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES AND THE RESPONSIBILITY TO PROTECT Kwesi Aning and Samuel Atuobi

Introduction The Economic Community of West African States (ECOWAS) was created in 1975 with the primary objective of member states jointly to ‘promote cooperation and integration, leading to the establishment of an economic union in West Africa in order to raise the living standards of its peoples, and to maintain and enhance economic stability’.1 However, since its creation, the organization has largely pursued security and political agendas due to the prevalence of political instability and security challenges in the West African sub-region. Since the 1960s, when most of its member states gained independence, West Africa has experienced several coups d’état and civil conflicts. According to McGowan: ‘from independence through 2004 … West African states have experienced forty-four successful military-led coups [d’état], forty-three often-bloody failed coups d’état, at least eighty-two coup plots, seven civil wars, and many other forms of political conflict’.2 The combined effect of coups d’état and political and civil conflicts on populations in West Africa have been disastrous. For instance, during the conflicts in Liberia, about 250,000 people were killed in the 1990s and early 2000s, whilst women and girls were sexually abused with impunity.3 Also in Sierra Leone, 50,000 were killed alongside other horrendous atrocities against civilians.4 So grievous were the atrocities committed by combatant groups in Sierra Leone that the UN established a war crimes court, the Special Court for Sierra Leone, to try the perpetrators.5 Faced with security challenges and political instability, and realizing that economic development can only take place in an environment of peace and security, ECOWAS redefined its raison d’être. It adopted measures to encourage member states who signed on to official documents aimed at protecting their citizens from abusive regimes, war crimes and human rights abuses resulting from conflicts and political instability. However, cognisant that member states could also be negligent of such responsibilities, ECOWAS also arrogated to itself the right of intervention in cases where its member states were unwilling or incapable of protecting citizens.6 As significant as official statements and documents are, it is important to examine the extent and level of ‘bindingness’ of these protocols and the extent to which they compel member 216

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states to apply the explicit and implicit norms and values enjoining them to protect their citizens from atrocities and human rights abuses. It is even more important to examine ECOWAS’s factual capacity to elicit compliance from member states with respect to the structural commitments they have made to uphold these principles. There is also the need to examine how these protocols tie in with the larger developments of the Responsibility to Protect (R2P) norm, which was unanimously endorsed by the member states of the United Nations at the 2005 World Summit.7 The R2P norm is based on ‘the idea that sovereign states have a responsibility to protect their own citizens from avoidable catastrophe – genocide, war crime, ethnic cleansing and crimes against humanity but that when they are unwilling or unable to do so, that responsibility must be borne by the broader community of states’.8 The African Union (AU) has also since 2000 taken the position that it has the right to intervene in member states under ‘grave circumstances’.9 Also, the AU’s Common African Position on UN reform, known as ‘The Ezulwini Consensus’, ‘reiterates the obligation of states to protect their citizens’.10 Since the World Summit in 2005, R2P has received further endorsement from member states of the United Nations (UN). More recently, a General Assembly Plenary discussion on R2P demonstrated overwhelming support for its implementation.11 In spite of the support, R2P has critics who argue ‘that the RtoP is a dangerous and imperialist doctrine that threatens to undermine the national sovereignty of and political autonomy of the weak’.12 In this chapter, we examine the nexus between the R2P ideas espoused in the multiple documents that member states have signed on to uphold, and ECOWAS’ factual ability to hold its members accountable to these principles. While state parties are usually willing to sign on to such documents, there is no commitment to domesticate such inherent principles in national laws. Thus, we examine ECOWAS’ ability to elicit state compliance with R2P issues and its ability to sanction those that are in breach of the norms to which they have signed on. To test ECOWAS’ institutional strength, the chapter uses as empirical case studies recent political developments in both Guinea (with the coming to power of a military regime through a coup d’état and the subsequent massacre of civilians demanding a return to democratic rule)13 and Niger (where constitutional manipulations have allowed an incumbent leader to extend his rule in contravention of existing procedures and mechanisms). We argue that, while ECOWAS has made considerable progress in establishing norms and structures that are relevant for the implementation of R2P, there is a gaping lacuna between the member states’ rhetorical acceptance of these norms at the ECOWAS level and their factual willingness to operationalize such norms domestically. What needs to be done by the sub-regional body, we posit, is the strengthening of its ability to elicit state compliance with these norms and capacitating its institutions, mechanisms and procedures to promote the protection of citizens from recalcitrant member states. The chapter is divided into three sections. It starts with a discussion of some of the provisions in key ECOWAS documents that relate to peace and security and the responsibility of ECOWAS member states to protect their citizens. This is followed by an analysis of the practical application of the norms ECOWAS member states have subscribed to by using Guinea and Niger as case studies. The third section evaluates the political rhetoric with actual state practices by ECOWAS member states vis-à-vis the norms they have signed on to.

ECOWAS protocols on security and conflict prevention The development of ECOWAS protocols on security and conflict prevention began as early as 1978 with the Protocol on Non-Aggression. Since then several protocols have been adopted and decisions taken, some of which resulted in the sub-regional body sending an intervention force to Liberia and Sierra Leone in the 1990s.14 The key ECOWAS documents that will form the basis 217

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of discussion in this section for their relevance to peace and security and to the R2P norm include: the Protocol on Non-Aggression (1978); the Protocol on Mutual Assistance in Defence Matters (1981); the ECOWAS Declaration on Political Principles (1991); the ECOWAS Revised Treaty (1993); the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution and Peacekeeping and Security (1999); the ECOWAS Supplementary Protocol on Democracy and Good Governance (2001); and the ECOWAS Conflict Prevention Framework (2008).

1. The Protocol on Non-Aggression (1978) The very first step towards the promotion of peace and security within the ECOWAS sub-region is reflected in the Protocol on Non-Aggression (PNA). Adopted just three years after the ECOWAS Treaty of 1975, it sought to regulate the relationship between member states by reducing the possibility of conflict or armed confrontation between them. Article 1 of the Protocol encourages ‘member states in their relations with one another, [to] refrain from the threat or use of force or aggression … against the territorial integrity or political independence of other member states’. Article 2 also enjoined member states to ‘refrain, from committing, encouraging or condoning acts of subversion, hostility or aggression against the territorial integrity or political independence of other Member States’. This thus demonstrated ECOWAS’ concern for peace and security at the time, but also reflected the concern of West African leaders to protect their national sovereignty and political independence. The PNA therefore did not impose obligation on signatories to protect their citizens from atrocities and human rights abuses. In spite of its focus on inter-state conflict, the Protocol’s pacific approach to conflict resolution15 had implicit value for conflict prevention, and therefore could be useful for the protection of populations who were likely to suffer should there be war between or among member states.

2. The Protocol on Mutual Assistance in Defence Matters (1981) While the Protocol on Non-Aggression had focused on prevention of conflict between and among its member states, the ECOWAS Protocol on Mutual Assistance on Defence (PMAD) of 1981 had the primary objective of establishing a collective defence regime. Consequently, Article 2 of the PMAD states that ‘Member States declare and accept that any armed threat or aggression directed against any Member State shall constitute a threat or aggression against the entire Community’.16 Thus ‘Member States resolve to give mutual aid and assistance for defence against any armed threat or aggression’.17 According to Article 4 of the PMAD, ECOWAS would offer member states military support under two circumstances. These are situations of (a) ‘armed conflict between two or several Member States if the settlement procedure by peaceful means as indicated in Article 5 of the Non-Aggression Protocol … proves ineffective; and (b) internal armed conflict within any Member State engineered and supported actively from outside likely to endanger the security and peace in the entire Community’.18 In each of the two situations, ‘intervention by AAFC [Allied Armed Forces of the Community] shall in all cases be justified by the legitimate defence of the territories of the Community’.19 Clearly, the PMAD was also concerned with defending the sovereignty of signatories and therefore paid no attention to the protection of citizens within ECOWAS member states. Nevertheless, had the idea to establish an intervention force, namely the AAFC, been realized, it would have better positioned ECOWAS to deal with the conflicts in Liberia and Sierra Leone in the 1990s. 218

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3. The ECOWAS Declaration on Political Principles (1991) The ECOWAS Declaration on Political Principles marked a dramatic departure from the statecentric approach to peace and security in West Africa. This declaration was based on the determination and commitment of ECOWAS, among others to:  secure peace and maintain stability in the ECOWAS sub-region by promoting increasingly better relations, strengthening good neighbourliness and ensuring conditions in which peoples can live in freedom under the law and in true and lasting peace, free from any threat to or against their security;  settle all disputes by peaceful means in such a manner as not to endanger the peace, security and stability of the sub-region;  respect human rights and fundamental freedoms in all their plentitude including in particular freedom of thought, conscience, association, religion or belief for all our peoples without distinction as to race, sex, language or creed;  promote and encourage the full enjoyment by all peoples of their fundamental human rights, especially their political, economic, social, cultural and other rights inherent in the dignity of the human person and essential to his free and progressive development; and  believe in the liberty of the individual and in his/her inalienable right to participate by means of free and democratic processes in the framing of the society in which he/she lives. To put this declaration in its proper context, it was made at the time when most member states were embarking on the path of democratic transition from a military or one-party system to multiparty rule. This was therefore significant in the sense that it was the first of any such declaration by ECOWAS with emphasis on the promotion of the fundamental rights of the people. By focusing on human rights and the rule of law, the Declaration represented hope for the protection of individuals in ECOWAS member states. It also highlighted ECOWAS’s belief that democratic governance can promote an environment of peace and security. It should be noted that the principles and articles above were a declaration and, unlike protocols or conventions, did not impose any formal obligations on member states.

4. The ECOWAS Revised Treaty (1993) The ECOWAS Treaty contains the core objectives of the organization. These objectives are largely economic in nature.20 However, in line with the organization’s objective to promote peace and stability as the fundamental basis for economic development and integration, the organization subscribes to the following ‘fundamental principles’ outlined in Article 4 of the Treaty. These include: maintenance of regional peace, stability and security through the promotion of good neighbourliness; peaceful settlement of disputes among member states, active cooperation between neighbouring countries and promotion of a peaceful environment as prerequisite for economic development; recognition, promotion and protection of human and people’s rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights; and promotion and consolidation of democratic governance in each member state as envisaged by the Declaration of Political Principles adopted in Abuja on 6 July 1991. What these principles mean for R2P is that they provide the basis for ECOWAS to initiate conflict prevention activities that, in the long term, promote the protection of populations from mass atrocities. Article 58 of the Treaty is also relevant for the conflict prevention and protection of civilians. It states that 219

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ECOWAS ‘Member States undertake to cooperate with the Community in establishing and strengthening appropriate mechanisms for the timely prevention and resolution of intra-State and inter-State conflicts’. So essential is this Article 58 that several references have been made to it in the Mechanism.

5. The Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution and Peacekeeping and Security (1999) The Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution and Peacekeeping and Security was adopted in 1999 after two major conflicts in Liberia and Sierra Leone in the 1990s threatened to consume the entire sub-region. It was based on the following principles: (a) economic and social development and the security of peoples and states are inextricably linked; (b) promotion and reinforcement of the free movement of persons, the right of residence and establishment contribute to the reinforcement of good neighbourliness; (c) promotion and consolidation of democratic governments as well as democratic institutions in each member state; (d) protection of fundamental human rights and freedoms and the rules of international humanitarian laws; (e) equality of sovereign states; and (f) territorial integrity and political independence of member states.21 The Mechanism set itself objectives that will enable it to intervene in conflicts to alleviate the suffering of civilians. These objectives, among others, are to:  implement relevant provisions of Article 58 of the Revised Treaty;22  prevent, manage and resolve internal and inter-state conflicts;  implement the relevant provisions of the Protocol on Non-Aggression, Mutual Assistance in Defence;  strengthen cooperation in the areas of conflict prevention, early warning, peacekeeping operations, the control of cross-border crime, international terrorism and proliferation of small arms and anti-personnel mines;  maintain and consolidate peace, security and stability within the Community;  establish institutions and formulate policies that would allow the organization and coordination of humanitarian relief missions;  promote close cooperation between member states in the areas of preventive diplomacy and peacekeeping; and  constitute and deploy a civilian and military force to maintain or restore peace within the sub-region whenever the need arises.23 The mechanism is a collective security arrangement that imposes responsibility on ECOWAS to ‘intervene to alleviate the suffering of the populations and restore life to normalcy in the event of crises, conflict and disaster’.24 To ensure that the above objectives are attained, the Mechanism establishes three institutions, namely the Authority of Heads of State and Governments, the Executive Secretariat25 and the Peace and Security Council.26 These institutions are supported by three organs, namely the Defence and Security Commission,27 the Council of Elders28 and the ECOWAS Ceasefire Monitoring Groups (ECOMOG).29 Finally, the Mechanism can be applied under the following conditions: cases of aggression or conflict in any member state or threat thereof; in case of conflict between two or several member states; in cases of internal conflict (a) that threatens to trigger a humanitarian disaster, or (b) that poses a serious threat to peace and security in the sub-region; in the event of serious and 220

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massive violations of human rights and the rule of law; in the event of an overthrow or attempted overthrow of a democratically elected government; and in any other situation as may be decided by the Mediation and Security Council.30 Equipped with institutions and supporting organs, as well as clearly defined circumstances for their application, the Mechanism provides the opportunity for ECOWAS to intervene when necessary to offer protection for populations from human rights abuses and atrocities covered under R2P, when their governments refuse, or are unable to do so.

6. The Supplementary Protocol on Democracy and Good Governance (2001) The ECOWAS Supplementary Protocol on Democracy and Good Governance adopted in 2001 is based on the following constitutional principles, among others, and is supposed to be shared by all member states: (a)

separation of powers – the executive, legislative and judiciary; – – –

empowerment and strengthening of parliaments and guarantee of parliamentary immunity; independence of the judiciary: judges shall be independent in the discharge of their duties; the freedom of the members of the Bar shall be guaranteed, without prejudice to their penal or disciplinary responsibility in the event of contempt of court or breaches of the common law.

(b) every accession to power must be made through free, fair and transparent elections; (c) zero tolerance for power obtained or maintained by unconstitutional means;31 (d) popular participation in decision making, strict adherence to democratic principles and decentralization of power at all levels of governance; and (e) the armed forces must be apolitical and must be under the command of a legally constituted political authority; no serving member of the armed forces may seek to run for elective political office.32 It is hoped that by promoting democratic rule and rejecting unconstitutional rule (including coups d’état), ECOWAS would also be promoting peace and security within member states by ensuring that they do not abuse the fundamental rights of their citizens. As will be discussed in the next section, it is to the principles enshrined in the above official documents that ECOWAS is holding two of their members, namely Guinea and Niger, to account.

7. The ECOWAS Conflict Prevention Framework (2008) In January 2008, ECOWAS Heads of States and Governments adopted the ECOWAS Conflict Prevention Framework (ECPF) to serve as: (a) a comprehensive operational conflict prevention and peacebuilding strategy, which enables the ECOWAS system and member states to draw upon human and financial resources at the regional and international levels in their efforts to transform conflict creatively; (b) a guide for enhancing cohesion and synergy between relevant ECOWAS departments on conflict prevention initiatives in order to maximize outcomes and ensure a more active and operational posture on conflict prevention and sustained post-conflict reconstruction from the ECOWAS system and its member states; and (c) a reference for developing process-based cooperation with regional and international stakeholders, including the private sector, civil society, African RECs, the AU and UN systems, as well 221

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as development partners, on conflict prevention and peacebuilding around concrete interventions.33 The ECPF states that ECOWAS has been imbued with necessary ‘supranational’ powers to act on behalf of and in conjunction with member states, the AU and the UN to protect human security in three ways relating to R2P, namely:  the responsibility to prevent, which involves actions taken to address the direct and root causes of intra- and inter-state conflicts that put populations at risk;  the responsibility to react, which are actions taken in response to grave and compelling humanitarian disasters;  the responsibility to rebuild, which are actions taken to ensure recovery, reconstruction, rehabilitation and reconstruction in the aftermath of violent conflicts, humanitarian and natural disasters.34 To ensure that its objectives are achieved, the ECPF comprises 14 initiatives designed to strengthen human security and incorporate conflict prevention activities as well as those of peacebuilding. These are: Early Warning; Preventive Diplomacy; Democracy and Political Governance; Human Rights and the Rule of Law; Media; Natural Resource Governance; Cross-Border Initiatives; Security Governance; Practical Disarmament; Women, Peace and Security; Youth Empowerment; ECOWAS Standby Force; Humanitarian Assistance; and Peace Education.35 From the promulgation of the Protocol on Non-Aggression in 1978 to the ECPF of 2008, it can be realized that ECOWAS has developed norms and structures intended to promote peace and security, while ensuring that member states put in place measures to promote democracy, respect for human rights and human dignity. The combined effects of these protocols place a responsibility on ECOWAS to demand accountability from member states on R2P-related issues in line with paragraphs 138 and 139 of the outcome document of the 2005 World Summit. Paragraph 138 emphasizes that ‘each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means.’ Beyond the obligation of states to protect their populations, paragraph 139 also states: The international community, through the United Nations, also has responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter of the United Nations, to help protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including chapter VII, on case-by-case basis and in cooperation with regional organisations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. The R2P concept rests on a three-pillar strategy: pillar one is the protection responsibility of states; pillar two is international assistance and capacity building; and pillar three is the timely and decisive response by the international community.36 The three pillars provide the opportunity for states and the international community to share the burden of protecting the world’s population from the four core crimes: genocide, war crimes, ethnic cleansing and crimes against humanity. 222

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Applying ECOWAS norms and R2P to Guinea and Niger As has been argued above, the responsibility to protect populations from genocide, crimes against humanity, war crimes and ethnic cleansing is the prerogative of states. Therefore, in the two empirical cases under consideration, the argument is that both regimes in Guinea and Niger bear the responsibility to protect their populations. This responsibility is reflected in a state’s responsibility to prevent massacres before they occur, terminate them once they begin and certainly forestall future atrocities. For example, in the case of Guinea, such responsibility should ensure that its security forces show restraint and respect for human rights, international humanitarian law and the rule of law, and hold accountable individuals who infringe such rights. In Guinea, the National Council for Democracy and Development (CNDD) failed in this fundamental responsibility. As a result of both Guinea and Niger’s failure to uphold their responsibility and comply with ECOWAS’ Conventions, these two member states of ECOWAS have been suspended for violating the organization’s Supplementary Protocol on Democracy and Good Governance, which, as we discussed above, abhors coups d’état and unconstitutional change of government. Guinea was suspended for a coup d’état on 23 December 2008, which took place shortly after the death of the country’s president, Lansana Conte. For its part, Niger was suspended for holding a referendum that would allow the president, Mamadou Tandja, to stand for a third term in contravention of the 1999 constitution of the country. In the next two subsections we discuss ECOWAS’ responses to the two cases. We also discuss the reaction of Niger and Guinea to ECOWAS’ responses.

Guinea Background to the current political situation Guinea, a former French colony, became independent in 1958. The first president at independence, Sekou Toure, ruled the country until his death in March 1984. A month after his death, Lansana Conte (then a captain in the army) seized power in a bloodless coup d’état, and subsequently became president.37 After the coup d’état, Conte ruled as a military leader until he accepted democratic rule under which he succeeded himself in the country’s first ever multiparty elections in 1993. President Conte’s rule, after the introduction of multiparty rule until his death in 2008, was interspersed with periods of political instability. For instance, in 1996, about 30 people were killed and the presidential palace set ablaze in an army mutiny over low-pay conditions. After this, there were several public strikes, protests or mutinies in which several people were either killed or injured. During that period, political opponents of the government were also arrested and imprisoned.38 Although on a lower scale when compared to the conflicts in neighbouring Sierra Leone and Liberia, Guinea also experienced rebel insurrection in 2000 in which over 1,000 people were killed.39 The current political crisis began when the military seized power after the death of President Lansana Conte. The coup d’état was led by Captain Moussa Dadis Camara who suspended the constitution, formed the National Council for Democracy and Development (CNDD), and declared himself president. However, the leadership of the CNDD announced that presidential elections would be held after two years in which its leader, Captain Moussa Camara, would not be a candidate. But, until he was shot in an assassination attempt, there were indications that Captain Moussa Camara would possibly be a candidate if ever elections were held. Since the December 2008 coup d’état, Guinea has rapidly sunk into violence that threatens the social, political and economic fabric of the country. The security and human rights situations have also grown from bad to worse. Two incidents confirm this. First, on 23 September 2009, security forces in Guinea opened fire on supporters of opposition parties who had gathered at a 223

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stadium in Conakry (the capital city of Guinea). The demonstration was organized by the opposition to protest against the apparent intention of Captain Dadis Camara to stand for presidential election in January 2010. The gathering at the stadium was besieged by armed men in uniform who shot indiscriminately at people. Human rights groups estimated that over 150 people were killed, while 1,700 were injured.40 The government disputes the number of deaths and puts the death-toll at 57. There are also numerous documented accounts of widespread sexual violence by members of the security forces against women, including beatings, stripping and gang rape. Many political party leaders were also beaten and had their homes ransacked.41 Another incident that contributed to the exacerbation of the already tense political atmosphere was the attempted assassination on 3 December 2009 of Captain Dadis Camara, the leader of the junta. Following the attempted assassination, the military launched a crackdown on people they believed could be linked to it. There were also reports that more than 100 soldiers have been arrested since the shooting. On the other hand, soldiers were reported to have swept through the city indiscriminately rounding up civilians.42

ECOWAS and international responses With the above background we analyse the responses of ECOWAS and the international community to events in Guinea through an R2P lens, and the protection of civilians. ECOWAS’s responses to the situation in Guinea should be interpreted within the context of the organization’s commitment to democratic rule, political stability and promotion of human rights. It also reflects attempts by ECOWAS to elicit compliance from member states with regard to their commitment to protocols on democracy, peace and security, and human rights. These responses are discussed in three parts. The first deals with responses to the December 2008 coup d’état. The second deals with responses after the massacre of opposition supporters in September 2008. The third relates to responses after the attempted assassination of Captain Dadis Camara and to the worsening security and human rights situation in that country.

(a) The December 2008 coup d’état and the suspension of Guinea ECOWAS’s response to the coup d’état of 23 December 2008 was outright condemnation in line with the Supplementary Protocol on Democracy and Good Governance, which outlaws unconstitutional change of government. There was also condemnation of the coup d’état from the AU, EU, UN and the wider international community. Consequently, ECOWAS, on 10 January 2009, suspended Guinea from its meetings until constitutional rule was restored.43 Earlier, on 28 December 2008, the AU had suspended Guinea ‘until the return of constitutional order’.44 The junta reacted to the bouts of international condemnation by issuing a timetable for return to constitutional rule in January 2010. But it was only a matter of time before the junta retracted on its promise. The suspension of Guinea by ECOWAS and AU at this stage was necessary in sending a strong signal to Guinea that the organizations were ready to hold their members accountable for what they voluntarily signed on to. But as subsequent events in Guinea show, membership suspension is not enough to prevent continuing human rights abuses.

(b) The September 2009 massacre45 In reaction to the September 2009 massacre in Guinea, ECOWAS’ Communiqué on 17 October ‘expressed deep concern over the mass violation of human rights and humanitarian law in Guinea 224

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and roundly condemned the brutal acts of massacre, rape and other atrocities perpetrated by the security forces under the authority of the CNDD [the junta] against unarmed women and civilians’.46 ECOWAS then went ahead to impose an arms embargo on the junta, under the ECOWAS Convention on Small Arms and Light Weapons, their Ammunitions and related Materials, and directed ‘the President of ECOWAS Commission to take all necessary measures to obtain support of the African Union, the European Union and the United Nations in the implementation and enforcement of the embargo’.47 Nigeria, West Africa’s undisputed leader, categorically supported ECOWAS’ stance and asserted: ‘we cannot fold our hands and watch the situation degenerate into conflicts of monumental proportion without employing appropriate intervention mechanisms to effectively arrest the drift’.48 ECOWAS also endorsed the United Nations Commission of Enquiry’s investigation into the 28 September massacre.49 The Commission has since completed its work and, on 17 December 2009, submitted its final report to the UN Secretary-General.50 The Commission report recommended the prosecution of the junta leader, Captain Dadis Camara, who it held responsible for the massacre.51

(c) Assassination attempt on Dadis Camara and the call for intervention ECOWAS’s response to the worsening security and humanitarian situation following the attempted assassination of the leader of the junta, Dadis Camara, gives the strongest indication yet of the sub-regional body’s commitment to R2P. In a move to protect the civilian population of Guinea, as a result of the refusal of the current government to take its responsibility to protect seriously (or its inability to do so), ECOWAS proposed sending an intervention force to Guinea. On 13 December 2009, Mohamed Ibn Chambas, a former deputy foreign minister of Ghana and the then president of the ECOWAS Commission, stated that ‘because of the great threats to human rights and uncontrollable violence, I propose that we recommend to our superiors a preventive deployment of a force to protect civilians and give aid, which will contribute to setting up an atmosphere of security for the Guinean population’. This was based on his assessment that ‘all the ingredients of an explosive situation have come together in Guinea’.52 Chambas’s statement relating to preventive deployment of a humanitarian and civilian protection force was further reinforced by another statement by Abdel-Fatau Musah, Director of Political Affairs at the ECOWAS Commission, to the effect that ECOWAS ‘will not stand by while the situation in Guinea continues to deteriorate and threatens the very stability of neighbouring countries’.53 There are several reasons why the protection of civilians in the Guinean crisis is important. The first is Guinea’s position in the sub-region – bordering three states that are all recovering from conflict, namely Liberia, Sierra Leone and Côte d’Ivoire. Second, and closely related to this, according to Mohammed Ibn Chambas, president of the ECOWAS Commission at the time, is the fact that ‘Guinea is a potentially “explosive” situation that could undermine regional efforts to consolidate peace in Liberia, Sierra Leone, Guinea-Bissau, and Ivory Coast’.54 While all these efforts were being undertaken, ECOWAS was also exploring the negotiation option with the junta taking into consideration the challenges and recalcitrance of some of the junta members.55 Furthermore, ECOWAS discussed the intervention option56 and actually did call for intervention57 with a meeting of the Committee of Chiefs of Defence Staff (CCDS) of ECOWAS member states, expressing concern about ‘the increase in political crises in some member states’ and concerned that such political difficulties could ‘mark out the region as the most crisis-prone area of the African continent’.58 Due to the concern about Guinea, the CCDS group was mandated to ‘evaluate the Guinean situation and proffer immediate advice to the ECOWAS Mediation and Security Council (MSC) for action’.59 225

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However, during these discussions and considerations, neither ECOWAS member states nor the AU presented a united front as to how to tackle this crisis. The African Union’s own actions were initially hesitant, though its Peace and Security Council (PSC) eventually acted based on the provisions of its protocol, which enabled the PSC to implement targeted sanctions against individual members of the junta, freezing of assets, revocation of travel permits and restricting both freedom and activities within the Union.60 In spite of these differences in institutional opinion and approaches, the Guinean junta by mid-January 2010 had agreed to back a timetable for a return to constitutional rule with the ‘exiled’ leader of the junta giving his full support and ‘confidence … for a rapid exit from the crisis’.61 However, increasing concerns have been expressed because junta members Captain Claude Pivi and Lieutenant Moussa Tiegboro Camara, who have joined the transitional government, were both implicated in the September 2009 massacre.62

Niger Background to the current political situation Niger, a former French colony, became independent on 3 August 1960. Since then, the country was ruled by a single-party government under the presidency of Hamani Diori who was overthrown in a coup d’état led by Lieutenant Colonel Seyni Kountche in 1974. Lieutenant Colonel Kountche ruled until his death in 1987 and was succeeded by Brigadier General Ali Seybou.63 Niger returned to constitutional rule in 1993 under President Mahamane Ousmane. But Ousmane was overthrown as a result of another coup d’état, led by Colonel Ibrahim Bare Mainassara.64 In April 1999, Mainassara was also overthrown and assassinated in another coup d’état led by Major Daouda Mallam Wanke, who established a transitional government to oversee the drafting of a new constitution. The Nigerien electorate approved the new constitution in July 1999 and held legislative and presidential elections in October and November of that year. As the head of a coalition of the National Movement for a Developing Society (MNSD) and the Democratic and Social Convention (CDS), Mamadou Tandja won the presidency.65 Having stood for re-election at the end of his first term in office, President Tandja was elected to a second five-year term in December 2004. This was the first presidential election with a democratically elected incumbent and a test to Niger’s young democracy. With this Niger was considered as one of the stable democracies in West Africa. The belief that Niger was a democratic success story changed in May 2009 when President Tandja dissolved the National Assembly after the country’s constitutional court turned down his attempt to extend his stay in office through a referendum. In spite of criticism from within and outside the country, President Tandja went ahead and held a referendum to endorse a new constitution that would allow him to run for office for an unprecedented third term. Although boycotted by the opposition, the government went ahead with the legislative election in October 2009 to fill vacant national assembly seats.66

ECOWAS, the international community and Niger ECOWAS’ response to the violation of the constitution of Niger to allow President Tandja to continue in office for an additional five years (or indefinitely) followed the regular pattern of condemnation and suspension. ECOWAS’ Communiqué of 17 October stated that the Authority of Heads of States and Governments considered the holding of the Referendum of 4 August 2009 and the circumstances of its organisation as against the 226

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letter and spirit of the Constitution of Niger and a violation of the ECOWAS Supplementary Protocol on Democracy and Good Governance and called on the authorities in Niger to desist from further acts that may deepen divisions within the country and exacerbate the political atmosphere.67

Suspension and non-recognition of Niger Based on the above statement, ECOWAS decided to suspend the membership of Niger from the organization and asked ‘Niger authorities to suspend indefinitely the holding of legislative elections scheduled for 20 October 2009 in favour of dialogue with other leading political parties on resolving the political crisis in the country’.68 The statement by ECOWAS also added that ‘failure by President Tandja to comply with the decisions of the Authority would lead to the automatic and immediate imposition of full sanctions as stipulated under Article 45 of the Supplementary Protocol on Democracy and Good Governance and the referral of the Niger file to the AU for similar action’.69 Niger did not comply with the above decision of ECOWAS. Rather, on 20 October 2009, President Tandja went ahead with the legislative election, which was boycotted by the opposition and which was clearly in contravention of the decision of ECOWAS mentioned above. In the latest move to demonstrate that ECOWAS would not tolerate the continuing refusal of Niger to comply with its decisions, the regional body has stated that it will no longer recognize the presidency of Tandja.70 The refusal of Niger to comply with ECOWAS’ decision is also a further demonstration of the unwillingness of some of ECOWAS’s member states to comply with the decisions of the organization and the principles to which these member states have signed on. We contend that Niger, like Guinea, sits on a ticking time bomb due to the inability of ECOWAS, with support from the entire international community, to exert significant pressure on President Tandja to respect democratic norms, which can only lead to the exacerbation of the political crisis. It is also important to note that Niger’s flouting of ECOWAS’ position is strengthened by significant investments in the country’s uranium mines by the French firm Areva, Canada’s Cameco and China National Petroleum Corporation (CNPC). With an investment of US $1.7bn in the Omouraren uranium mine, it was expected that Tanja’s position would be further strengthened and that his tenure was ‘likely to last for at least three years’.71 In spite of this confident assessment of the president’s powers, the military overthrew Tandja on 19 February 2010 in sharp contrast to the AU and ECOWAS’ protocols and established a new regime, the Supreme Council for the Restoration of Democracy.72

Appraising political rhetoric with state practice From the two cases discussed above, it is clear that while ECOWAS is serious about holding its member states accountable for norms to which they have voluntarily signed on, there are difficulties in getting member states to respect its decisions. By imposing sanctions on Guinea and proposing to send an intervention force to protect civilian populations, ECOWAS has demonstrated that it takes its responsibility to protect seriously. For the first time, ECOWAS has indicated that it will not recognize a sitting president, President Tandja of Niger. This shows how resolute ECOWAS has become. We seek answers to three pertinent questions in this section. What is (a) ECOWAS’ strength vis-à-vis member states? (b) How do we link issues of sovereignty to adherence to decisions, and (c) Why do regimes flout rules to which they have willingly signed on? 227

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First, ECOWAS as a sub-regional body appears to be weak vis-à-vis member states. This may be largely due to the unwillingness of member states to support decisions of the organization. The preparedness of individual member states to work with recalcitrant members also negates actions of ECOWAS and weakens it further. For now, as in the case of Guinea and Niger, member states of ECOWAS have not demonstrated that they are willing to go along with the decisions of ECOWAS by instituting sanctions against recalcitrant members. Neither are they, on their own, willing to excommunicate such members. With this attitude, it is difficult to contemplate how ECOWAS could raise an intervention force from member states whose attitude towards the military junta in Guinea and illegal government in Niger can be described as lukewarm. But what needs to be emphasized here is that, like all inter-state organizations, ECOWAS’ strength depends largely on the extent to which members are willing to lend support to its decisions. Second, the issue of sovereignty is also crucial because, in West Africa, states are quick to take refuge in sovereignty when faced with sanctions from ECOWAS. Perhaps there is confusion between sovereignty and the responsibility to discharge one’s obligation under international laws. Guinea’s reaction to the consideration of ECOWAS to send an intervention force to protect civilians explains this better. Colonel Moussa Keita, the spokesman of the Junta in Guinea, considers the idea of intervention force in his country as an ‘assault on the authority of the state [Guinea]’ if it is done without prior approval from his government.73 Such an attitude as demonstrated by Guinea is at variance with the core idea of R2P that sovereignty must be exercised with responsibility. Third, it is possible that regimes flout decisions of ECOWAS and what they have signed up to because, in principle, they lose nothing by doing so. But critical to this discussion is the fact that most ECOWAS member states have signed on to documents that their leaders did not intend to respect in the first place. Thus in West Africa there is a gap between political commitment during ECOWAS meetings and state practice.

Conclusion ECOWAS has evolved from a purely economic integration arrangement, since it was first created in 1975, to a security regime determined to promote peace and security as the basis for economic development. As we have discussed in this chapter, the organization has set for itself norms and principles with which member states are expected to comply. As the two case studies show, ECOWAS is clear about the standards member states are supposed to meet and has demonstrated that it can hold members accountable for the norms they have signed on to uphold. However, there are still challenges in ensuring full compliance with its decisions. In the case of Guinea, suspension of membership and imposition of an arms embargo did not contribute to improvement of the political situation, nor did it improve the protection of civilians. Political developments in Guinea over the past 12 months have confirmed that killings, rape and other forms of human rights abuses could still go on in spite of condemnations, suspension of membership and the imposition of arms embargoes. This is not to say that these measures are not necessary. However, it has to be noted that while the suspension of members from the ‘club’ and imposition of arms embargoes (in the case of Guinea) may be a useful first step for ECOWAS and the international community to communicate their displeasure with recalcitrant members, it certainly does not go far enough to elicit compliance and ensure the protection of civilians from murderous regimes. Again, in Niger, condemnation and suspension of membership did not stop President Tandja going ahead with legislative election to which ECOWAS and the international community objected. 228

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Beside the above realization, it is heart-warming to know that ECOWAS was prepared to send an intervention force to Guinea to protect the civilian population, who were largely at the mercy of the military junta. Yet, the success of such a strategy would depend, to a large extent, on the support the organization gets from individual member states who are supposed to contribute troops and help enforce sanctions against the regimes. It needs to be reiterated that the ability of ECOWAS to elicit compliance with its norms on principle does not depend solely on decisions by the Authority of Heads of State and Government, but also on the decisions, and/or the willingness, of individual member states to enforce ECOWAS’ decision regarding recalcitrant members. For now, ECOWAS’s responses to the situation in Guinea and Niger demonstrate that it is committed to the principles outlawing unconstitutional change of government and blatant abuse of human rights, and that it is prepared to intervene to protect civilians when governments will not.

Notes 1 See Article 3 (1) of the ECOWAS Revised Treaty, Abuja: ECOWAS Commission, 1993. 2 J. Patrick McGowan, 2005. ‘Coups and Conflict in West Africa, 1955–2004’, Armed Forces and Society, Vol. 32, No. 1, October, p. 5. 3 See BBC News, Country Profile: Liberia, http://news.bbc.co.uk/2/hi/africa/country_profiles/ 1043500.stm (accessed 23 August 2010). See also Human Rights Watch Report, ‘“We will kill you if you cry”: Sexual Violence against women in the Sierra Leone Conflict’, Vol. 15, No. 1 (A), January 2003. 4 BBC News, ‘S’Leone War Amputees “Ignored”’, http://news.bbc.co.uk/2/hi/africa/4250276.stm (accessed 23 August 2010). 5 The Special Court for Sierra Leone was established in 2002 by the government of Sierra Leone and the United Nations to prosecute those who bore the greatest responsibility for atrocities committed during the war. 6 These documents are discussed in detail in the second section. 7 See the World Summit Outcome document, www.un.org/summit2005/documents.html (accessed 17 May 2011), p. 30. 8 For further reading, see the Report of the International Commission on State Sovereignty (ICISS), The Responsibility to Protect, December 2001. 9 Article 4(h) of the Constitutive Act (2000) of the AU defines ‘grave circumstances’ as situations of genocide, war crimes and crimes against humanity. 10 African Union document Ext/EX.CL/2 (VII). 11 See Report on the General Assembly Plenary Debate on the Responsibility to Protect, http://www. responsibilitytoprotect.org/ICRtoP%20ReportGeneral_Assembly_Debate_on_the_Responsibility_to_ Protect%20FINAL%209_22_09.pdf (accessed 29 November 2009). 12 Alex J. Bellamy, 2010. ‘The Responsibility to Protect – Five Years On’, Ethics & International Affairs, 24, No. 2, p. 144. 13 David Lewis, 2009. ‘Guinea’s Camara Can Be Blamed for Stadium Crimes’, Human Rights Watch, 12 December; http://af.reuters.com/article/topNews/idAFJOE5BG0FW20091217 (accessed 23 January 2012); Gwynn Dyer, 2009. ‘The Curse of West Africa’, Trinidad & Tobago Express, 18 December; ‘Guinea massacre likely a “crime against humanity”’, Human Rights Watch, 23 December 2009. 14 The ECOWAS Ceasefire Monitoring Group was formed in 1990 to intervene in the Liberia civil conflict. ECOMOG subsequently intervened in the Sierra Leone conflict. 15 See Article 5 of the Protocol on Non-Aggression, Lagos: ECOWAS Secretariat, April 1975. 16 Article 2 of the Protocol on Mutual Assistance on Defence, Lagos: ECOWAS Secretariat, May 1981. 17 Ibid., Article 3. 18 Ibid., Article 4. 19 Ibid., Article 15. 20 See Article 3 of the ECOWAS Revised Treaty.

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21 See Article 2 of ECOWAS: The Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-Keeping and Security, Abuja: ECOWAS Commission, 1999, known as the Mechanism. 22 Article 58 of the Revised ECOWAS Treaty captures the Community’s commitment to ‘timely prevention’ of conflicts. 23 See Article 3 of the Mechanism. 24 Ibid., Article 40. 25 The Executive Secretary shall have the power to initiate actions for conflict prevention, management, resolution, peacekeeping and security in the sub-region. Such actions may include fact finding, mediation, facilitation, negotiation and reconciliation of parties in conflict. See Article 15 of the Mechanism. 26 See Article 4 of the Mechanism. 27 The Defence and Security Council is mandated to examine technical and administrative issues relating to peacekeeping in the sub-region. 28 The Council of Elders is made up of eminent personalities who, on behalf of ECOWAS, can use their good offices and experience to play the role of mediators, conciliators and facilitators in West Africa. 29 When it becomes functional ECOWAS Standby Force will be performing the functions of ECOMOG. 30 See Article 25 of the Mechanism. 31 Article 4(p) of the AU Constitutive Act also condemns and rejects unconstitutional changes of governments. See also Articles 2(4) and 3(9) of the African Charter on Democracy, Elections and Governance (2007). 32 See Articles (a) to (e) of the Supplementary Protocol on Democracy and Good Governance, Abuja: ECOWAS Commission, 1999. 33 See ECOWAS Conflict Prevention Framework, Abuja: ECOWAS Commission, 2008, p. 7. 34 Ibid., p. 15. 35 Ibid., p. 16. 36 UN Document A/63/677, 63rd Session of the UN General Assembly, Implementing the Responsibility to Protect: Report of the Secretary-General, 12 January 2009. 37 BBC News, ‘Timeline Guinea’, http://news.bbc.co.uk/2/hi/africa/country_profiles/1032515.stm (accessed 14 December 2009). 38 Ibid. 39 Ibid. 40 Crisis Group Africa Briefing No. 66, ‘Guinea: Military Rule Must End’, 16 October 2009, p. 2. 41 Ibid. 42 See BBC News, ‘ECOWAS Mulls Guinea’s Intervention Force’, http://news.bbc.co.uk/2/hi/africa/ 8411456.stm (accessed 17 December 2009). 43 ‘Final Communiqué’, Extra-ordinary Summit of ECOWAS Heads of States and Government held in Abuja, 10 January, Abuja: ECOWAS Commission, 2009. 44 allAfrica.com, ‘Guinea: AU Suspends Country over Coup’, http://allafrica.com/stories/200812300498. html (accessed 23 January 2012). 45 For the most detailed presentation of this massacre, see Human Rights Watch, 2009. Guinea – Bloody Monday The September 28 Massacre and Rapes by Security Forces in Guinea, December, http://www. humansecuritygateway.com/documents/HRW_Guinea_BloodyMonday_Sept28MassacreRapes.pdf (accessed 23 January 2012). 46 ECOWAS Commission, ‘Final Communiqué’, Extraordinary Summit of ECOWAS Heads of State and Government held in Abuja, 17 October 2009. 47 Ibid. 48 ‘The International Response to 28 September 2009 Massacre in Guinea and the Responsibility to Protect’, Policy Brief, January, New York: GCR2P, 2010, p. 3. 49 Scott Stearns, 2009. ‘International Mediators Fear Guinea Could Destabilize Region’, 15 December, http:// www1.voanews.com/english/news/International-Mediators-Fear-Guinea-Could-Destabilize-Region79315387.html (accessed 23 January 2012). 50 See BBC News, ‘Guinea Junta Leader Should be Tried – UN’, http://news.bbc.co.uk/2/hi/africa/ 8425384.stm (accessed 23 January 2012). 51 Ibid. The UN report is yet to be made public. 52 Ouedraogo Brahima, 2009. ‘Guinea: W. African Bloc Calls for Preventive Troops’, The Washington Post, http://www.washingtonpost.com/wp-dyn/content/article/2009/12/13/AR2009121301092_pf. html (accessed 15 December 2009).

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53 Ibid. 54 BBC News, ‘ECOWAS Mulls Guinea Intervention Force’, http://news.bbc.co.uk/2/hi/africa/ 8411456.stm (accessed 23 January 2012). 55 Scott Stearns, 2009. ‘Guinea Pulls Out of Mediation Talks’, 9 December, http://www1.voanews.com/ english/news/Guinea-Pulls-Out-of-Mediation-Talks-78866412.html (accessed 23 January 2012). 56 Scott Stearns, 2009. ‘Guinea Military Rejects Regional Intervention Force’, 14 December, http:// www1.voanews.com/english/news/africa/Guinea-Military-Rejects-Regional-Intervention-Force79269687.html (accessed 23 January 2012). See also Scott Stearns, ‘Guineans Hopeful Regional Mediation Can Resolve Crisis’, 14 December 2009, http://www.voanews.com/english/news/africa/ Guineans-Hopeful-Regional-Mediation-Can-Resolve-Crisis-79266772.html (accessed 9 February 2012). 57 Scott Stearns, 2009. ‘ECOWAS Leader Calls for Intervention Force in Guinea’, 13 December, http:// www1.voanews.com/english/news/africa/ECOWAS-Leader-Calls-for-Intervention-Force-in-Guinea79183697.html (accessed 23 January 2012). 58 ECOWAS, 2009. Report of the 26th Meeting of the Committee of Chiefs of Defence Staff of ECOWAS, 9–11 December, Freetown, p. 5. 59 Ibid., p. 6. 60 Several AU member states were not in agreement with the general position of the PSC. Libya, for example, which is Chair of the African Union, argued that it ‘strongly reject[ed]’ the UN investigation into the massacre, arguing that it amounted to ‘interference in the internal affairs of an independent country’. See GCR2P, ‘The international response to 28 September 2009’, p. 3. 61 ‘Guinea: Camara Backs Transitional Government’, Reuters Africa, 18 January 2010. See also ‘Exiled Guinean leader appeals for reconciliation’, The Washington Post, 17 January 2009; VOA News, ‘African Union Not Yet Ready to Lift Guinea Suspension, Says AU Official’, 17 January 2010, http://www. voanews.com/english/news/africa/butty-guinea-african-union-18jan10-81940167.html (accessed 9 Feburary 2012). 62 ‘Concerns over Guinea Ministers’, The Mercury, 16 February 2010, p. 6. 63 See BBC News, ‘Timeline: Niger’, http://news.bbc.co.uk/2/hi/africa/country_profiles/1054274.stm (accessed 13 December 2009). 64 Ibid. 65 Ibid. 66 See BBC News, ‘Timeline: Niger’, http://news.bbc.co.uk/2/hi/africa/country_profiles/1054274.stm (accessed 13 December 2009). 67 ECOWAS Commission, ‘Final communiqué’. 68 Ibid. 69 Ibid. 70 BBC News, ‘Niger Anger over ECOWAS Snub of President Tandja’, http://news.bbc.co.uk/2/hi/ africa/8427834.stm (accessed 23 January 2012). 71 See African Business, February 2010, p. 45. This investment alone led to a doubling of Niger’s production, making it the world’s second largest of uranium, of which Areva owns two-thirds and the other third is owned by the government of Niger. 72 See ‘Niger under pressure to set elections after coup’, Daily News, 19 February 2010, p. 10; Abdoulaye Massalatchi, 2010. ‘Gun Battle in Niger Capital as Fighters Launch Coup Attempt’, Business Day, 19 February, p. 6. 73 BBC News, ‘ECOWAS Mulls Guinea Intervention Force’, http://news.bbc.co.uk/2/hi/africa/ 8411456.stm (accessed 23 January 2012).

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17 EVALUATING THE IMPLEMENTATION OF THE RESPONSIBILITY TO PROTECT IN EAST AFRICA Afyare A. Elmi

Introduction During the World Summit in 2005, the United Nations, in its outcome document, adopted the Responsibility to Protect (R2P) norm. For many scholars, policymakers, and activists, the R2P is a groundbreaking idea. In essence, R2P, through upholding a state’s responsibility to prevent, to react, and to rebuild, offers a method to protect people from the four major crimes of genocide, ethnic cleansing, war crimes, and crimes against humanity.1 As UN Special Adviser on the Prevention of Genocide and a pioneer of this concept Francis M. Deng rightfully asserts, “sovereignty entails responsibility.”2 If a given state cannot fulfill this responsibility, the world community is to assist the state or intervene. In other words, sovereignty must not protect those states that lack the “will or the capacity” to protect their people.3 Paragraph 139 of the 2005 World Summit Outcome document states that when dealing with a given crisis, the international community can deploy various policy instruments from its toolbox as appropriated by the UN Security Council, including diplomatic, legal, and military, in order to protect endangered populations.4 Diplomatic and noncoercive policy instruments include “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort[ing] to regional agencies or arrangements and other means of specific settlement.”5 Besides diplomacy as its practice shows, the international community has employed a judicial approach and invoked the International Criminal Court when necessary. The four heinous crimes6 on which R2P demands action have occurred in Somalia, Ethiopia, Sudan, Uganda, and Kenya over the last six years (2005–11), albeit in different ways. Since the enactment of R2P in 2005, the international community, through the United Nations Security Council, has asked the International Criminal Court to investigate individuals who are alleged to have committed mass killings in the region. Besides diplomatic and legal means, the international community has also used military force to protect people from one or more of the four major crimes. The norms of the R2P not only entail the responsibility of the state and the international community to react to such crimes, and responsibility to rebuild in their aftermath, but also the responsibility to prevent such atrocities from occurring in the first place. As both 232

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analysts and advocates argue, prevention is the most important tool in protecting civilians.7 The international community’s responsibility to assist states proves to be complex, and in the East African region, the record of the international community in implementing R2P is no exception. In this chapter, I evaluate the international community’s8 political, legal, and military approaches in implementing the R2P in East Africa in light of its responsibility to prevent, to react, and to protect civilians. I argue that the approaches of the international community in addressing mass human rights atrocities in East Africa just prior to and after the establishment of the R2P norms has been selective, politically driven, and at times counterproductive. The reasons behind the international community’s inaction or detrimental actions vary depending on the country involved. I contend that the international community’s diplomatic, judicial, and military actions, in this region, show three different trends. First, in Sudan (Darfur), Uganda and Ethiopia, the international community failed to successfully implement the R2P norms because some of the powerful countries have subordinated human rights atrocities to their geopolitical and strategic interests. On the other hand, in Kenya and South Sudan, the performance of the international community is much better. Its diplomatic intervention after the post-election violence in 2007 and 2008 in Kenya was timely, preventing escalation. In Southern Sudan, the international community helped the Sudanese government and the Sudan People’s Liberation Army (SPLA)/Sudan People’s Liberation Movement to negotiate the Comprehensive Peace Agreement (CPA) in December 2004. This halted the war and eventually facilitated the separation of Southern Sudan from Northern Sudan. Third, in Somalia, however, the international community indirectly and at times directly facilitated mass killing and human rights abuses, by silently endorsing Ethiopia’s occupation and by failing to hold accountable the peacekeeping forces of the African Union Mission in Somalia (AMISOM), which the international community authorized, and Somali groups. Ethiopia and AMISOM are partially responsible for much of the war crimes and crimes against humanity that occurred from 2006 to 2011 in Somalia. Finally, in the context of the R2P norms, I further analyze the international community’s use of the ICC in protecting civilians in the East Africa region. I argue that the overreliance of the judicial approach compromises the protection of civilians, the very norm that the R2P is created for. With regard to the organization of the chapter, first, I analyze the various approaches that the international community adopted in implementing the R2P norms in the East Africa region. With particular consideration of Somalia, I examine closely the implications of the policies of the international community. Second, I assess the deployment of the International Criminal Court in implementing R2P norms in the East Africa region. Third, while linking to the responsibility to prevent, I critique the international community’s often preferred approach within the transitional justice mechanisms. Fourth, I assess the military interventions that the international community endorses in order to protect civilians. Finally, I conclude with a section that deals with recommendations regarding the international community’s implementation of the R2P in the region.

R2P in the East Africa region In late December of 2007, when conflict over the election results in Kenya broke between the supporters of the incumbent president Mwai Kibaki and those of the opposition leader Raila Odinga, the international community responded: Former Assistant Secretary of State Jendayi Frazer characterized the conflict as ethnic cleansing and threatened to stop US support to Kenya;9 Kofi Annan, former Secretary-General to the United Nations, flew to Nairobi to mediate the conflict, invoking R2P.10 Further, many African and European countries demonstrated a strong 233

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desire to contain and end the violence in Kenya.11 As Roger Cohen explains, external powers were united to deliver “coerced consent to negotiation.”12 As such, the sustained diplomatic and political intervention by the international community succeeded in forcing Kenya’s leaders to commit to a power-sharing agreement.13 Although the international community failed to prevent all violence in Kenya in 2007 and 2008, it partially succeeded in its reaction to the crisis, thus containing the escalation and stopping killings. The Comprehensive Peace Agreement between Sudan’s government and SPLA was signed on December 31, 2004,14 several months before the adoption of the emerging R2P norms at the September 2005 World Summit. However, the consequences of the peace deal and the instruments of mediation and political pressure that were utilized during the two-year negotiation process suggested to the international community that diplomatic interventions are more effective and more efficient than other means in stopping mass human rights atrocities. Interestingly, while negotiations between the government of Sudan and SPLA/M were taking place in Kenya, a Somali peace conference was going on in Nairobi. But the international community allocated particular attention toward resolving the Sudan conflict. For instance, the Bush administration appointed a special envoy for peace in Sudan, the former US Senator John C. Danforth, who regularly met with the negotiating Sudanese parties in Kenya.15 Overall, the political intervention and the diplomatic pressure of the “norm-carriers” helped to end the conflict, thus leading Southern Sudan to become the newest country in Africa. In Ethiopia over the last five years, however, public efforts to prevent war crimes, crimes against humanity, and ethnic cleansing have been absent on the part of the international community. Although human rights organizations have produced evidence that linked the Addis Ababa regime to atrocities committed in the Somali region of Ogaden,16 the international community has applied minimal pressure on Ethiopia. Ethiopia’s long and strong relations with Western powers, as well as being a key ally of the United States in its war on terrorism, may go some way in explaining international policy toward the country. The Ethiopian regime has also succeeded in projecting itself as the only responsible regime in the area.17 As such, the international community continues to look the other way when it comes to the mass killings, systemic displacement, and other human rights atrocities committed by the Addis Ababa regime against civilian populations in the ‘Ogaden’ and Oromo regions. In Sudan’s Darfur region, the international community has adopted a legalistic approach instead of applying political and diplomatic pressure on the Sudanese government. Numerous human rights organizations produced reports that allege Sudan’s government committed all of the four crimes in Darfur that R2P is designed to prevent. 18 And, in response, the United States concluded that Sudan’s leaders committed genocide and that they had to be held “accountable.”19 But the United Nations disagreed, arguing that whilst war crimes, crimes against humanity, and ethnic cleansing occurred in Darfur, genocide did not.20 Regardless of the public rhetoric, it became apparent that geostrategic calculations and the politics of oil between the United States and China overshadowed the humanitarian concerns in Sudan. In fact, according to Alex Bellamy, Sudan’s government partially succeeded in convincing some members of the international community that the United States was engaged in oil politics, and that it was using human rights for its own energy interests.21 Over the last seven years (2004–11), a large segment of the population in the East Africa region has been exposed to murder, rape, and systematic displacement. Further, the governments of these countries are often alleged to have played an active role in committing these atrocities. For instance, Human Rights Watch documented that the Ethiopian regime committed war crimes in the Somali and Oromo regions. Moreover, in northern Uganda, according to Human Rights Watch, the rebel groups and the Ugandan forces committed crimes against humanity in 2004 and 2005.22 234

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Somalia The case of Somalia is both complex and unique. The civil war that began in the country in 1978 escalated with the complete collapse of the Somali state in 1991. Since then, civil war has been an ongoing reality, and as a result of the long conflict, hundreds of thousands of Somalis have perished. A brief background, particularly for the last six years that the R2P has been in operation, is necessary here. Between 2002 and 2004, Kenya hosted the Somali Reconciliation Conference. Intergovernmental Authority on Development (IGAD), an organization of seven African countries, has led the peace process.23After two years, the conference ended with the election of Abdullahi Yusuf Ahmed as president of Somalia’s Transitional Federal Government (TFG). President Yusuf soon appointed Ali Mohamed Gedi as prime minister. Within the second week of his presidency, President Yusuf requested 20,000 African forces, including troops from the frontline states of Ethiopia, Kenya, and Djibouti, to be sent to Somalia as a peacemaking force.24 This move threatened warlords from Mogadishu who had just been made ministers of President Yusuf’s government. Thus, even before the new government repatriated itself to Somalia, internal conflict along tribal lines had already emerged. Mogadishu warlords, though newly appointed cabinet ministers, initiated a parallel agenda and undermined their own government.25 The warlords and the speaker of the Transitional Federal Parliament Sharif Hassan Sheikh Adan, along with other parliamentarians, broke from Yusuf’s new government and, in 2005, returned to Mogadishu. There, they mobilized supporters by using tribal and nationalist claims that President Yusuf’s motive was to take revenge against the Hawiye clans to which most of the warlords belonged. They also publicly accused President Yusuf of inviting Ethiopian troops to Somalia. Mogadishu warlords continued to discredit Yusuf and Prime Minister Ali Gedi, who in September 2005 set up a temporary base in the city of Jowhar, about 90 km away from the capital. In Mogadishu, however, the warlords were challenged. While faction leaders and the warlords were bickering in Nairobi and other capitals about sharing power, Somalia’s Islamist movements worked to create neighborhood Islamic Courts. Under the banner of the Islamic Courts, they consolidated a grassroots-oriented security service in Mogadishu, a move that would undermine the role of the warlords in Somali politics. By early 2005, as many as 11 Islamic Courts, established along tribal lines, could be found in the capital. The small but militant group, Al-Shabab, was also present, and it assisted and eventually became a temporary partner with the Islamic Courts. When the warlords returned to Mogadishu they realized that they needed to secure the capital and regain the political ground that they had lost to the Islamic Courts. The newly appointed security minister of the TFG Mohamed Qanyare Afrah, Mogadishu warlords, and the speaker of the parliament packaged themselves as a force to fight and eliminate Islamist extremists from Somalia. They created an alliance and, on February 18, 2006, declared war on the Islamic Courts (including Al-Shabab and other movements).26 After four months of fighting between Somalia’s heterogeneous Islamists and the Mogadishu warlords, the latter were defeated. By June 2006, the Islamic Courts Union (ICU) took control of the capital and established a peace that the city had not seen for many years. The ICU also opened the port and airport and began to clean up the streets of Mogadishu. This turn of events created euphoria among the residents and huge public support for the Islamists. Indeed, over the following months the ICU pacified most of southern Somalia.27 But soon after, in December 2006, the Ethiopian government invaded Somalia. As a result of the war that ensued between Ethiopian forces and the Islamist groups who opposed the Ethiopian presence in Somalia, thousands of civilians were killed. Hundreds of thousands have also been 235

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systematically displaced.28 Ethiopian troops and Somali individuals and groups have committed many of these atrocities under different guises—government, rebel groups, clans, and warlords. According to Human Rights Watch, “[a]ll parties to the conflict in Mogadishu have been implicated in war crimes in 2009.”29 Thus, the year 2005 was the beginning of another round of the Somali civil war. Mogadishu warlords mobilized their supporters in Somalia and challenged the sovereignty of the government, of which they had been a part, by establishing an independent relationship with the United States, Ethiopia, and other external parties. Mohamed Qanyare Afrah, the former minister of national security of the TFG and a notorious warlord, received financial and military support from US counter-terrorism agencies.30 President Abdullahi Yusuf Ahmed’s efforts to convince the United States and other foreign parties to deal exclusively with the legitimate government came to no avail. The international community and, in particular, the Bush administration, which considered the ICU as a terrorist-controlled organization, was presented with a dilemma.31 Washington was determined to deny the ICU control of Somalia, yet there was no domestic partner who could do the job. As such, the Bush administration outsourced the Somalia war to Ethiopia, with whom Somalia has historically poor relations.32 When Ethiopia invaded Somalia in December 2006 and took over Mogadishu, it removed from power the Islamic Courts and installed a new Ethiopian-backed Transitional Federal Government. Ethiopia controlled the country for the following two years. Although the wars in Mogadishu and southern Somalia affected civilian populations, the 2006 Ethiopian invasion was the worst conflict experienced by civilians in the city since the 1991–93 conflict. Between 2007 and 2008, nearly 20,000 people were killed and more than one million displaced.33 Indeed, most of the deaths and displacement experienced by the Somali population over the last five years occurred during the Ethiopian occupation—from December 2006 to December 2008. The former head of UN humanitarian operations in Somalia Eric Laroche publicly stated that the humanitarian situation in Somalia was “worse than Darfur.”34 Yet the performance of the international community in implementing R2P norms in Somalia was woeful. In fact, the international community not only failed to protect innocent civilians but tacitly participated in the conflict by indirectly endorsing the Ethiopian occupation, by directly mandating the African troops, and by allowing those warlords who committed crimes to avoid accountability.

The role of the ICC in East Africa The international community’s involvement in the East Africa region has been unfocused, at best, employing various strategies to implement the R2P norms to stop mass killings and human rights abuses. At times, the international community has used political and diplomatic means, while at other times it has intervened militarily. And, in at least three cases, the international community has taken a judicial approach by using legal mechanisms such as the International Criminal Court (ICC) in order to stop, deter, or punish individuals who have been accused of committing war crimes, crimes against humanity, or genocide. Generally, one may argue that the ICC is a legal institution, whereas the R2P is a norm. Actions or inactions of the R2P norm-carriers may or may not be connected to the ICC, which has a parallel agenda. However, here I argue that the ICC is one of the mechanisms that the international community employs when dealing with the four crimes that are covered by R2P. As the case of Libya in recent months illustrates, it is becoming increasingly apparent from the actions of the UN Security Council that R2P norm carriers combine strategies. For 236

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instance, in Libya, they have authorized a limited military action and then referred the case to the ICC. R2P is an international set of standards agreed by UN member states to hold governments accountable for the protection of their citizens from crimes; and the ICC, as an international institution governed by the Rome Statute, is one of the means by which perpetrators of these four crimes are held accountable. The two have the same objectives: protecting people from the four major crimes. Powerful countries that are considered norm carriers sometimes use the ICC when they invoke the norm of the R2P. More importantly, the ICC contributes to all of the three responsibilities—prevention, reaction, and rebuilding—by deterring war criminals and by punishing them. However, the use of the ICC has been sporadic. The international community has employed the ICC in order to deter, stop, or punish alleged criminals in some cases, whereas in others it has chosen not to. Indeed, in the East African countries of Sudan, Somalia, Uganda, Kenya, and Ethiopia, the use of the ICC has not only been selective but counterproductive in containing the violence. In 2009 and in 2010, the international community invoked the R2P norms in Sudan, and the ICC issued an arrest warrant to some of Sudan’s leaders, including President Omar Hassan Al-Bashir.35 At times the ICC has acted without invocation of R2P from the international community. In 2005, the ICC had also issued arrest warrants against the leaders of the Lord’s Resistance Army (Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo, and Dominic Ongwen) in Uganda, albeit Uganda’s parliament has since given them amnesty.36 The ICC employed a similar strategy in going after alleged perpetrators of the 2007–8 post-election violence in Kenya. In December 2010, the ICC indicted six Kenyan officials, including Deputy Prime Minister Ohuru Kenyata, two other ministers, and the former police chief.37 In contrast, the R2P norm carriers chose not to use the ICC in Ethiopia; thus its leaders were not held accountable even though its forces and its proxy militias have killed hundreds of people in the Ogaden and Oromo regions. In fact, according to Human Rights Watch, Ethiopia created a militia force, the New Police, that Somalis call “Ha Waarin” [Do not stay alive]. Human Rights Watch compared this militia to the Janjaweed militia in Darfur. The New Police, along with the Ethiopian Armed Forces, have carried out much of the atrocities that have occurred in the Somali region.38 As in Ethiopia, the ICC is largely absent from Somalia, and the international community has not invoked such judiciary means. Since civil war broke out in 1978, many Somali warlords have committed war crimes, crimes against humanity, or ethnic cleansing. Most of these warlords are now members of the Somali parliament, and others are directly or indirectly involved with the government. These individuals travel freely to foreign capitals in the region. In addition, during the two-year invasion, Ethiopian forces have killed thousands of Somalis. In Mogadishu alone, Ethiopian forces have systematically displaced more than one million individuals.39 Finally, the African forces, namely the Ugandan forces in Mogadishu, are behind indiscriminate and daily shelling of the civilian areas of Mogadishu. Although local and international human rights organizations have documented these abuses,40 the ICC has not issued a single arrest warrant against the perpetrators. The selective implementation of the R2P norm is not limited to Somalia and Ethiopia. According to Mahmood Mamdani, the ICC chose not to issue arrest warrants against the leaders of the Darfuri insurgent groups who committed crimes against humanity. Moreover, in Uganda, the ICC is going after the Lord’s Resistance Army (LRA), but not after the government—even though Museveni’s forces are alleged to have systematically killed thousands and displaced millions.41 Mamdani writes: “my point is not [that] those tried by the ICC or the international 237

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tribunals have not committed crimes, including mass murder: [but that] the law is being applied selectively. Only some perpetrators are being targeted, and not others. The decision as to who to target, and who not to, is inevitably a political decision.”42

Responsibility to prevent through judicial interventions Even if the international community changes its behavior and becomes holistic and consistent in indicting all alleged criminals, perhaps the broader and more fundamental question is, should a judicial approach (ICC) be employed in addressing the transitional justice of the countries recovering from conflict in Africa? There is no easy answer to this question. Reconciling the values of attaining and sustaining peace with the value of demanding justice is extremely challenging.43 This task becomes more complicated when a given conflict ends through a negotiated settlement and those individuals who should be tried for crimes become leaders and members of the parliament and government, such as in the cases of Mozambique, South Africa, Somalia, and Kenya. “Transitional justice” thus becomes defined by negotiated settlements that put aside the unjust actions that were committed. Mamdani discusses two forms of justice: victor’s justice and survivor’s justice. For Mamdani, victor’s justice is rooted in the Nuremberg convention in which the defeated Nazi leaders were tried and convicted. This simply means that if a conflict ends through a military victory, the victor country or group will do whatever it wants with the vanquished group. In the eastern region of Africa, only Ethiopia and Uganda have partially succeeded in ending their conflicts through a military victory. Ethiopia’s Tegrean Peoples Liberation Front (TPLF), led by Meles Zenawi, and Uganda’s National Resistance Army, led by Yuwaru Musseveni, defeated their adversaries and imposed their version of victor’s justice on their respective countries. In contrast, a military winner has not emerged in Somalia, and as a result the warlords who committed atrocities shared the power in the formation of the transitional government during the Somali Peace Conference in 2004, thus becoming ministers and members of parliament. Similarly, in Kenya’s 2007–8 post-election violence, the international community imposed a negotiated settlement on Mwai Kibaki and Raila Odinga to share power. Mamdani argues that the main assumptions that guided the Nuremberg version of justice are not present in most of Africa’s conflicts, and thus he questions the wisdom behind involving the ICC in African conflicts. First, unlike the defeat of Nazi Germany, most conflicts in Africa end through a negotiated settlement. Second, in Germany, after the Second World War, victims and perpetrators did not live together. Most remaining Jewish groups left Germany. In Africa, this is not the case, as victims and killers change places regularly and live in the same land together indefinitely. As such, Mamdani prescribes what he calls a survivor’s justice: The challenge for South Africa—as for Mozambique, Uganda and Sudan—is not to shun justice but to explore forms of justice that will help end, rather than prolong, conflicts. The search for survivor’s justice needs to be two-pronged: prioritize peace over punishment; and explore forms of justice—not criminal but political and social— which will make reconciliation durable. From this point of view, the conflict in Darfur is not an exception but an illustration of the African dilemma.44 Peace activists often prioritize the need for creating a secure environment and subordinate the question of justice for durable peace. At times, as in the cases of Sierra Leone, Liberia, and Angola, peace was created through the use of questionable means—that is, through private security companies or mercenaries.45 Morality aside, these countries made significant progress 238

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toward peace and democracy. On the other extreme, the Democratic Republic of Congo and Somalia enjoy neither peace nor the protection of human rights. In Sudan, the Comprehensive Peace Agreement (CPA), signed in January 2005, ended the conflict between the north and the south. The international community and the United States played a positive role in reaching and implementing this political deal. If the conflict in Darfur is to end, either one group must win militarily or all of the groups that are fighting must agree to a negotiated settlement. It is unlikely that one group will defeat the rest. Therefore, the international community could again play a key and positive role in encouraging the groups to commit to a political peace process. But employing a legalistic approach, as it has done through the ICC, to solve a political problem only complicates the already difficult humanitarian situation on the ground. Rather, the international community should put political pressure on Ethiopia, Uganda, Kenya, and Sudan. Somalia is unique, however, because its state has fully collapsed. In such an environment, the role of the international community through R2P is to help rebuild state institutions. This requires an inclusive and genuine peace process where groups are encouraged to partner with each other. Moreover, a mechanism to deal with spoilers may be needed. In such a case, the threat of employing ICC would surely deter some of Somalia’s notorious warlords from engaging in further killings. But, even for this purpose, the efforts of attaining and sustaining peace should be a priority at present. Somalis have learned the hard way that without peace there will not be human rights. How then should transitional justice be approached in the region? Overall, transitional justice should not be seen as an either/or situation between justice and no justice, or compromised justice. There are several ways in which transitional justice can be implemented. For instance, Mamdani’s survivor’s justice calls for a locally owned process in which criminals are held accountable while safeguarding the progress that is made toward peace, as in the South African truth and reconciliation model.46 One option is to create a truth and reconciliation commission in which the crimes of perpetrators are forgiven but not forgotten. Another option is that of lustration, where leaders are forbidden to occupy a position of power but not jailed or prosecuted. In short, the international community through the R2P norm and the institution of the ICC have the same objective – that is, to stop mass killings and human rights atrocities. The Security Council, as an institution, particularly through its five permanent members, often plays a key role in carrying the norm or referring cases to the ICC. However, the dilemma is to determine which instrument yields better results for attaining the objective of protecting people from mass atrocities. In the region of East Africa, diplomatic and political instruments have proven to be more effective than the judicial approach.

Responsibility to Protect through military interventions in East Africa Since 2005 the international community endorsed two military interventions in East Africa. In Sudan’s Darfur region, after the government of Sudan and rebel groups signed a ceasefire agreement in 2004, the African Union’s Heads of States and Governments authorized a peacekeeping force to be deployed. Initially, Sudan opposed a UN intervention force, but it eventually accepted. In January 2008, the UN took over the Darfur Peace Process as a result of Resolution 1769 of 2007, which adopted the new UN-African Union Mission in Darfur (UNIMID). Both the African and the UNIMID missions in Sudan were tasked to protect civilians and aid agencies in the Darfur region. The UN Security Council authorized a second military intervention allowing the African Union to send peacekeeping troops to Somalia in 2007. Unlike Sudan’s Darfur region, 239

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according to Resolution 1725, the African forces (AMISOM) had the mandate to protect the key government installations and government leaders, not civilians. Subsequent Security Council resolutions encourage all parties to cease the hostility and protect civilians. In other words, for unexplained reasons, the AMISOM forces in Mogadishu are not tasked to protect civilians. As such, the Amnesty International Report concluded that AMISOM “has neither the mandate nor the capacity to protect civilians in Somalia.”47 A third military intervention took place in Somalia in 2006. Ethiopia invaded Somalia as part of the war on terrorism. First, Ethiopian leadership argued that they acted in order to protect its national security from terrorist organizations based in Somalia that aimed at attacking Ethiopia. Interestingly, like the Iraq war, Ethiopia’s post-invasion rhetoric changed to that of protecting Somali civilians from terrorists. The United States supported the invasion and provided Ethiopia with intelligence, financial, and military support.48 The UN’s Security Council remained silent by neither condemning the invasion nor demanding Ethiopia to withdraw from Somalia. In the third military intervention, Ethiopian forces committed at least two of the four major crimes R2P was designed to end. War crimes and crimes against humanity occurred during the two years that Ethiopia occupied Somalia. During this time, more than one million people were displaced.49 Yet the international community chose to ignore this fact simply because the intervention was part of the war on terror. Ethiopia, with the help of the United States, changed the regime in Mogadishu by destroying the Islamic Courts Union in 2006. Of the three military interventions that took place in the region, the international community invoked the R2P only in the Darfur region.

The way forward: state building UN Secretary General Ban Ki-moon in his 2009 report, Implementing the Responsibility to Protect, writes that the second pillar of the R2P is the “commitment of the international community to provide assistance to States in building capacity to protect their populations from mass atrocities and to assisting those, which are under stress before crises and conflicts break out.”50 David Chandler considers this statement to be groundbreaking because it provides agency to non-Western countries and allows them to carry out their responsibilities.51 Unfortunately, the current practice suggests that the international community, particularly the permanent members of the UN Security Council, provide little assistance to the states in East Africa in the area of capacity building and good governance. Instead, they are engaged in selective interventions or non-interventions after countries begin to disintegrate. Such a practice has serious implications. Powerful members of the Security Council undermine the growth of state capacity in the region because they often subordinate human rights issues of the people in East Africa to their political and security interests. The implications here include neglecting “responsibility to protect” by (1) intervening without holding states accountable for the protection of their own citizens; or (2) looking the other way by indirectly encouraging states to continue committing human rights atrocities. Sudan (politically driven action) and Ethiopia (non-action) are examples. Ignoring the Somalia case further illustrates the intentions of the international community. Thus far, the intervention in Somalia has empowered the African Union mission and NGOs in Kenya. The international community failed to empower the Somali state. In cases where a state has fully collapsed such as that of Somalia, the norm carriers of the R2P could focus on rebuilding the central state. The public record of the international community suggests that it has failed to do anything meaningful in this regard in Somalia. Although the international community provided relief aid to the suffering and displaced peoples, it does not often support institution building, particularly the security 240

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apparatus. In those cases that the state is weak, but functioning, such as Sudan, Ethiopia, Uganda, and Kenya, the norm carriers’ assistance is not focused.

Conclusion On the broader regional level, the international community has often failed to prevent deadly conflicts in the East Africa region and it has also failed to discharge its responsibility to rebuild in the aftermath of a crisis. In Sudan and Somalia, security and geopolitical calculations drive intervention or lack thereof. In Ethiopia, the state is given a free hand in dealing with ongoing conflicts. In Kenya, even though Kofi Annan and other respected African and world leaders succeeded in preventing escalation of the post-election violence of 2007–8, the regime in Nairobi is still struggling to rebuild bridges and neighborhoods that were destroyed in the conflict. In fact, as I write this chapter, the two principal leaders, the president and the prime minister, are in a deadlock and the political process stalled.52 This is a cause for concern as the conflict could return anytime. Interestingly, it is apparent, at least in East Africa, that the international community was more successful in implementing the norms of the R2P when it employed diplomatic and political pressure than when it used the legal instruments such as the ICC. The Kofi Annan-led political intervention was successful in stopping the post-election violence in Kenya. Similarly, the international community has helped resolve the South Sudan conflict through the Comprehensive Peace Accord. On the other hand, the world community opted to use a legalistic approach through the ICC in Sudan’s Darfur and in Uganda’s northern region. Such decisions have backfired—neither peace nor human rights protection has been achieved in either Darfur or Northern Uganda. In Ethiopia, the international community has not applied political or legal pressure against Ethiopian leaders for the war crimes committed in the Ogaden region and in Somalia during Ethiopia’s two-year occupation. Finally, the permanent members of the UN Security Council, particularly the United States, consider Somalia a failed state inhabited by terrorist groups. Therefore, the Security Council chooses to ignore the human rights atrocities in Somalia since the forces that have committed much of these enjoy the political cover of the most powerful state in the world.

Notes 1 See Alex J. Bellamy, Responsibility to Protect (Cambridge: Polity Press, 2009); see also Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All (Washington, DC: Brookings Institution Press, 2008); Gareth Evans, “The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All,” Irish Studies in International Affairs 20 (2009): 7–13; and Gareth Evans and Mohamed Sahnoun, “The Responsibility to Protect,” Foreign Affairs 81, no. 6 (2002): 99–110. 2 Ibid., 84. 3 Francis M. Deng, “The Responsibility to Protect,” JISB Interview, Journal of Intervention and Statebuilding 4, no. 1 (2009): 83–89. 4 United Nations, General Assembly Resolution 60/1 (October 24, 2005), http://daccess-dds-ny.un.org/ doc/UNDOC/GEN/N05/487/60/PDF/N0548760.pdf?OpenElement (accessed 2 May 2011). See Andy Knight, “The Development of the Responsibility to Protect—From Evolving Norm to Practice,” Global Responsibility to Protect 3, no. 1 (2011): 26. 5 Knight, “Development of the Responsibility to Protect,” 26. 6 Articles 6–8 of the Rome Statute of the International Criminal Court provide detailed definitions of genocide, crimes against humanity, and war crimes. For a crime to be characterized as genocide there must be widespread killings of people or the harming of them physically and mentally “with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” Rome Statute of the

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International Court, 2002, A/CONF.183/9, http://untreaty.un.org/cod/icc/statute/english/rome_ statute(e).pdf (accessed 7 March 2011, p. 4). Crimes against humanity and war crimes must involve widespread atrocities committed against civilian populations, including murder, rape, and systematic displacement. The crime of ethnic cleansing, according to the UN Commission of Experts, is “rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area.” United Nations, Final Report of the Commision of Experts, S/1994/674 (May 27, 1994), http://www.his.com/~twarrick/commxyu1.htm, para. 55 (accessed March 2011). Alex J. Bellamy, Responsibility to Protect, Cambridge: Polity Press, 2009. The term “international community” is often associated with R2P. Noam Chomsky argues that in theory, the international community should be tantamount to the UN General Assembly or “substantial majority of it.” But, in practice, for Andrew Gowers and Noam Chomsky, the term “international community” technically means Western countries or the United States and its allies. Here, I use “international community” as Chomsky and Gowers define the concept. See Noam Chomsky, “The Crimes of Intcom,” Foreign Policy (September 2002), http://www.chomsky.info/articles/200209 –.htm (accessed 7 March 2011); and Andrew Gowers, “The Power of Two,” Foreign Policy (September 2002), http://www.foreignpolicy.com/articles/2002/09/01/the_power_of_two (accessed 7 March 2011). Jeffrey Gettleman, “Official Sees Kenyan Ethnic Cleansing,” New York Times, January 31, 2008, http://www.nytimes.com/2008/01/31/world/africa/31kenya.html (accessed 10 March 2011); see also BBC, “US Denounces Kenya ‘Cleansing,’” January 30, 2008, http://news.bbc.co.uk/2/hi/7216872. stm (accessed 10 March 2011). BBC, “Annan Leads Kenyan Crisis Talks,” January 29, 2008, http://news.bbc.co.uk/2/hi/africa/ 7215673.stm (accessed 19 March 2011); see also Jeffrey Gettleman, “Annan, Bypassing Negotiators, to Deal Directly with Kenyan Leaders,” New York Times, February 26, 2008, http://www.nytimes.com/ 2008/02/26/world/africa/26iht-kenya.4.10434468.html (accessed 20 March 2011). When the post-election conflict escalated, European Union diplomats and election observers contained the violence by working with Kofi Annan and others. See Roger Cohen, “How Kofi Annan Rescued Kenya,” New York Review of Books, August 14, 2008, http://www.nybooks.com/articles/archives/ 2008/aug/14/how-kofi-annan-rescued-kenya/ (accessed 11 March 2011). Ibid. See BBC, “Kenya Rivals Agree to Share Power,” February 28, 2008, http://news.bbc.co.uk/2/hi/ africa/7268903.stm (accessed 11 March 2011). See the Comprehensive Peace Agreement between the government of Sudan on one side and Sudan People’s Liberation Movement and Sudan People’s Liberation Army on the other side, signed on December 31, 2004, in Navaisha, Kenya, http://www.aec-sudan.org/docs/cpa/cpa-en.pdf (accessed 12 May 2011). See Christopher Marquis, “Bush Picks Envoy to Seek Peace in Sudan,” New York Times, September 7, 2001, http://www.nytimes.com/2001/09/07/world/bush-picks-envoy-to-seek-peace-in-sudan.html (accessed 22 April 2011). See Human Rights Watch, “Development without Freedom: How Aid Underwrites Repression in Ethiopia,” October 19, 2010 http://www.hrw.org/node/93605 (accessed 12 March 2011); Human Rights Watch, “Ethiopia: Donor Aid Supports Repression,” October 19, 2010, http://www.hrw.org/ en/news/2010/10/18/ethiopia-donor-aid-supports-repression (accessed 12 March 2011); and Human Rights Watch, World Report 2010, New York: Human Rights Watch, 2010, http://www.hrw.org/ world-report-2010 (accessed 12 March 2011). British diplomat, personal communication. See Human Rights Watch, “Darfur 2007: Chaos by Design,” September 19, 2007, http://www.hrw. org/en/reports/2007/09/19/darfur-2007-chaos-design (accessed 7 March 2011); Human Rights Watch, “Darfur Destroyed: Ethnic Cleansing by Government and Militia Forces in Western Sudan,” May 6, 2004, http://www.hrw.org/en/reports/2004/05/06/darfur-destroyed (accessed 8 March 2011); see also Amnesty International, “Sudan: Time Is Running Out: Protect the People of Darfur,” April 1, 2007, http://www.amnesty.org/en/library/info/AFR54/016/2007/en (accessed 8 March 2011). See Glenn Kessler and Colum Lynch, “U.S. Calls Killings in Sudan Genocide,” Washington Post, September 10, 2004, http://www.washingtonpost.com/ac2/wp-dyn/A8364–2004Sep9?language= printer (accessed 15 March 2011). See also BBC, “US House Calls Darfur ‘Genocide,’” July 23, 2004, http://news.bbc.co.uk/2/hi/africa/3918765.stm (accessed 15 March 2011). Jim VandeHei, “In Break With U.N., Bush Calls Sudan Killings Genocide,” Washington Post, June 2, 2005. See also the Report of the International Commission of Inquiry on Darfur to the United

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Nations Secretary-General, which was published on January 25, 2005, http://www.un.org/News/dh/ sudan/com_inq_darfur.pdf (accessed 24 January 2012). See Alex Bellamy, “Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention after Iraq,” Ethics and International Affairs 19, no. 2 (2006): 31–54; see also John Laughland, “The Mask of Altruism Disguising a Colonial War,” Guardian, August, 2, 2004, http://www.guardian. co.uk/world/2004/aug/02/sudan.oil (accessed 15 May 2011), Human Rights Watch, “Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern Uganda,” September 2005, http://www.hrw.org/reports/2005/uganda0905/index.htm (accessed 18 March 2011), 31. For detailed analyses see Kasaija Phillip Apuuli, “The ICC Arrest Warrants for the Lord’s Resistance Army Leaders and Peace Prospects for Northern Uganda,” Journal of International Criminal Justice 4 (2006): 179–87. Countries in the region are Djibouti, Eritrea, Ethiopia, Kenya, Somalia, Sudan, and Uganda. BBC, “Somalia Seeking AU Peacekeepers,” October 25, 2004, http://news.bbc.co.uk/2/hi/africa/ 3947873.stm (accessed 18 March 2011). Tsegaye Tadesse, “Somali Leader Seeks African Peacekeepers,” Washington Post, October 24, 2004, http:// www.washingtonpost.com/wp-dyn/articles/A57466–2004Oct23.html (accessed 26 March 2011). Mogadishu warlords created a new organization in which they called the “Alliance for the Restoration of Peace and Counter-Terrorism,” on February 18, 2005, the same day a new war started between the Mogadishu warlords and the Islamic Courts. See BBC, “Fighting Rocks Somalia’s Capital,” February 20, 2005, http://news.bbc.co.uk/2/hi/africa/4731456.stm (accessed 15 March 2011). See Jeffrey Gettleman, “Islamists Calm Somali Capital with Restraint,” New York Times, September 24, 2006, http://www.nytimes.com/2006/09/24/world/africa/24somalia.html?scp=3&sq=Islamic%20Courts% 20and%20Mogadishu&st=cse (accessed 15 May 2011); see also the detailed account of Ali Abdirahman Hersi, “The Enormous Debt Owed by So Many to the UIC,” Hiiraan Online, March 5, 2007, http:// www.hiiraan.com/op2/2007/mar/the_enormous_debt_owed_by_so_many_to_the_uic.aspx (accessed 11 May 2011). Jeffrey Gettleman, “Humanitarian Crisis in Somalia Is Worse than Darfur,” New York Times, November 20, 2007, http://www.nytimes.com/2007/11/20/world/africa/20iht-somalia.1.8401525.html (accessed 11 March 2011). Human Rights Watch, “Somalia,” January 2010, http://www.hrw.org/en/node/87605 (accessed 5 March 2011). Marc Lacey, “Islamic Militants Declare Victory in Mogadishu,” New York Times, June 5, 2006, http:// www.nytimes.com/2006/06/05/world/africa/05cnd-somalia.html (accessed 10 March 2011). Dan Robinson, “Voice of America, US Official Reiterates Concern about Militant Elements in Somalia,” Security.org, June 30, 2006, http://www.globalsecurity.org/military/library/news/2006/06/ mil-060630-voa04.htm (accessed 25 March 2011). Afyare Elmi, “Getting Ethiopia Out of Somalia,” New York Times, May 3, 2007, http://www.nytimes. com/2007/05/03/opinion/03iht-edelmi.1.5548935.html?_r=1&scp=1&sq=Afyare&st=cse (accessed 25 March 2011). I wrote the article on the Boston Globe and on the International Herald Tribune. But since both papers are owned by the New York Times, it is indexed by the New York Times. See the link and the end of the article. See Gettleman, “Humanitarian Crisis in Somalia Is Worse Than Darfur.” Eric Laroche, quoted in ibid. See Robert Cryer, “The Definitions of International Crimes in the Al Bashir Arrest Warrant Decision,” Journal of International Criminal Justice 7 (2009): 289–96. Mahmood Mamdani, “Responsibility to Protect or Right to Punish,” Journal of Intervention and Statebuilding 4, no. 1 (2010): 53–67. Interestingly, all of the indicted officials belong to President Kibaki’s faction. See Human Rights Watch, “Uprooted and Forgotten,” 31. For detailed analyses, see Apuuli, “The ICC Arrest Warrants.” Human Rights Watch, “Development without Freedom,” and Human Rights Watch, “Ethiopia: Donor Aid Supports Repression.” Jeffrey Gettelman, “Humanitarian Crisis in Somalia Is Worse Than Darfur,” New York Times, November 20, 2007, http://www.nytimes.com/2007/11/20/world/africa/20iht-somalia.1.8401525. html (accessed 23 March 2011). See Human Rights Watch, “Somalia,” January 2010, http://www.hrw.org/en/node/87605 (accessed 16 March 2011) See Mamdani, “Responsibility to Protect.”

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42 Ibid., 62. 43 See Taisier Mohamed Ahmed Ali and Robert O. Matthews, Durable Peace in Africa, Montreal: McGill University Press, 2002; and Mamdani, “Responsibility to Protect.” 44 Mamdani, “Responsibility to Protect,” 61. 45 The governments of Sierra Leone, Angola, and Liberia hired private security companies such as Blackwater and known mercenaries such as Executive Outcomes to pacify the country. Blackwater also plays a role in Afghanistan and Iraq. 46 See Mamdani, “Responsibility to Protect.” 47 Amnesty International, “Routinely Targeted: Attacks on Civilians in Somalia,” http://www.amnesty. org/en/library/asset/AFR52/006/2008/en/1162a792–186e-11dd-92b4–6b0c2ef9d02f/afr520062008 eng.pdf (accessed 2 May 2011). 48 Jeffrey Gettleman, “U.S. Used Base in Ethiopia to Hunt Al Qaeda,” New York Times, February 23, 2007, http://www.nytimes.com/2007/02/23/world/africa/23somalia.html (accessed 15 May 2011). 49 Amnesty International, “Routinely Targeted,” 25. 50 Kofi Annan, Implementing the Responsibility to Protect, Report of the Secretary-General, A/63/677, January 12, 2009. 51 David Chandler, “The Responsibility to Protect: Imposing the Liberal Peace,” International Peacekeeping 11, no. 1 (2010): 59–81. 52 President Kibaki and Prime Minister Odinga are arguing over recent nominations (by Kibaki) of candidates to four judicial offices in parliament, including chief justice and attorney general. Prime Minister Odinga rejects the nominations, arguing that President Kibaki did not adhere to a consultation process required by the Constitution. For now there is a deadlock, although it is likely that it will be addressed through the political institutions.

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18 SOUTHEAST ASIA Between non-interference and sovereignty as responsibility Alex J. Bellamy and Catherine Drummond

The Association of Southeast Asian Nations (ASEAN) has traditionally adhered to a strict principle of non-interference, but since the mid-1990s the principle has come under challenge from a variety of sources. One of the principal challenges has developed from the global normative shift away from the traditional understanding of state sovereignty as guaranteeing rights of non-interference towards acceptance of sovereignty as responsibility, the underlying premise of the responsibility to protect (R2P). As unanimously agreed by the UN General Assembly in 2005, R2P comprises each state’s responsibility to protect its own populations from genocide, war crimes, ethnic cleansing and crimes against humanity, the international community’s duty to assist states in this endeavour, and a responsibility for the international community to take timely and decisive action in situations where the host state has manifestly failed in its R2P. At first glance, the latter two elements of this principle seem to require behaviour that contradicts the principle of noninterference. This raises questions as to why R2P was endorsed by Southeast Asian governments and whether it can be ‘localised’ (Acharya 2009) in a region whose politics are underpinned by non-interference. There are three potential answers to this question. First, it could be argued that the region has rejected R2P in favour of non-interference but that it has tried to legitimise this rejection by simply ‘mimicking’ (Johnstone 2007) support for the norm. Second, it might be concluded that the region has jettisoned non-interference in favour of R2P. Third, it could be argued that processes of norm localisation are producing an accommodation between the two principles. This accommodation involves the formal retention of both principles but the subtle realignment of each in order to make them compatible and make support for both coherent. It is this third explanation, we argue, that best explains the relationship between R2P and noninterference in Southeast Asia. As other contributors to this handbook point out, R2P has been revised to limit its capacity to legitimise coercive interference, whilst non-interference is in the process of being recalibrated to permit expressions of concern, offers of assistance and even the application of limited diplomatic pressure in response to major humanitarian crises. Thus, whilst the region remains largely hostile to doctrinal revisions to non-interference, subtle changes are evident in practice. To save space and limit overlap with other chapters, this chapter proceeds in two main parts. The first provides an overview of non-interference and past efforts to revise the principle. The second examines two case studies to understand how Southeast Asian governments can profess 245

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acquiescence or support for both R2P and non-interference – the region’s response to Cyclone Nargis in 2008 and the positions taken by Southeast Asian governments at the 2009 General Assembly debate on R2P.

The norm of non-interference ASEAN’s adherence to the norm of non-interference is characteristic of an institutional culture of regional security management that aims to avoid confrontation. The essence of the principle of non-interference is the belief that each state’s domestic affairs are no one else’s concern, which forms the cornerstone of intra-ASEAN relations. As such, the principle is reaffirmed in all the Association’s major agreements, including the founding Bangkok Declaration of 1967 (Article 2[7]) and the 1976 Treaty of Amity and Cooperation (Article 2). The latter defines the guiding principles of the Association as the maintenance of ‘mutual respect for the independence, sovereignty, equality, territorial integrity and national identity of all nations, the right of every State to lead its national existence free from external interference, subversion or coercion [and] non-interference in the internal affairs of one another’ (ASEAN 1976: Article 2). The region’s support for non-interference can be largely understood in light of the instability that characterised the period immediately prior to ASEAN’s establishment in 1967. Noninterference allowed the region’s states to concentrate on domestic consolidation in the wake of decolonisation and helped limit the risks of destabilising external interference and international conflicts (Katsumata 2004: 243). This was particularly pertinent in a climate where territorial disputes, internal communal strife, secessionism and a lack of socio-political cohesiveness were the principal threats to national governments (Katanyuu 2006: 826). Such concerns were compounded by the mutual distrust and suspicion that arose from the most divisive of regional conflicts during the 1950s and 1960s, the Konfrontasi. In opposing the creation of an independent Malaysia, Indonesia and the Philippines sponsored low-level military incursions into Malaysian territory and gave subversive groups training and support in an effort to destabilise the nascent nation (Katanyuu 2006: 826–27). Concerns about domestic stability and national security were further reinforced by Vietnam’s invasion of Cambodia in 1978, great power intervention during the Cold War and the divisive effect of communism on the region. With a history of foreign colonial intervention and occupation and an unstable and subversive domestic political environment, non-interference paved the way for new relations premised upon mutual respect for one another’s sovereignty, territorial integrity and national security. In addition, within this context, many Southeast Asian governments came to the view that the most effective path to political consolidation and economic development involved the establishment of strong states and the postponement of individual human rights for the greater good of national development (Narine 2005: 469). Non-interference largely succeeded in creating stability and security between states and is often credited with establishing the context that permitted rapid economic deployment in parts of the region. Throughout its first 30 years, ASEAN member states adhered quite strictly to a broad understanding of non-interference. Despite the fact that the Association made no attempt to define what it means by ‘interference’, regional practice prior to the mid-1990s suggests that it was construed as a continuum of involvement in the domestic affairs of states that ranged from the mildest of political commentary through to coercive military intervention. As such, ASEAN leaders generally refrained from formal discussion of domestic affairs (Simon 2008: 272). Instead the regional agenda focused on peace and security between states, economic growth, social and cultural development, and the provision of technical assistance. Even moves to expand the good offices of the Chair of the ASEAN Regional Forum (ARF) were rejected due to concerns it 246

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could lead to interference in the domestic affairs of member states (Simon 2008: 280–81). Southeast Asian governments have also traditionally refrained from publicly criticising or condemning each other for their human rights violations, for fear that making intra-ASEAN criticism acceptable would undermine the unity and stability of the Association. This refusal saw member states remain silent in the face of the brutal military campaign that followed Indonesia’s invasion of East Timor in 1974, where over the course of a decade approximately 200,000 people were killed by Indonesian oppression and counter-insurgency operations (Narine 2005: 478). However, no example is a clearer demonstration of the Association’s fidelity to the principle of non-interference from the 1970s to early 1990s than ASEAN’s decade-long condemnation of, and stance against, Vietnam for its intervention in Cambodia in 1979, which halted the genocidal regime of the Khmer Rouge. The Association even went so far as to organise international opposition to Vietnam’s occupation and was a driving force in ensuring Cambodia’s seat at the UN was kept for Pol Pot and the Khmer Rouge until 1992. This case also demonstrates the Association’s consistent and steadfast rejection of non-consensual military intervention for whatever purpose and preference for quiet diplomacy, behind closed doors (Ramcharan 2000: 80–81). All this suggests that there is a limit to the extent to which ASEAN member states can embrace R2P (World Federalist Movement Institute for Global Policy 2008: 18; Locke and Ladnier 2002: 2–4; Katsumata 2003: 104–6). Non-interference is premised on traditional Westphalian understandings of sovereignty that prioritise territorial inviolability, sovereign equality and the right to exclude external actors from a state’s internal affairs (Krasner 1999: 9). R2P, we noted earlier, is premised upon the concept of sovereignty as responsibility, which holds that state sovereignty is essentially derived from individual human rights and thereby conditional. Accordingly, the state has the primary responsibility to protect its population and if it fails to do so, the Security Council may authorise intervention to protect people from harm. In practice, ASEAN states have been reluctant to conceptualise human rights and sovereignty as mutually reinforcing, out of fear that this may open the door to various forms of interference. But they have been unable to isolate themselves from the global normative developments that we described earlier, giving rise to new practices and a variety of proposals for reforming and moderating the principle that have, when taken together, revised the principle. Since the late 1990s ASEAN has permitted increasing levels of political commentary, diplomatic pressure and external mediation efforts in relation to the domestic affairs of some of its member states. Such moves resulted, in part, from the growing recognition that non-interference was an ineffectual basis for addressing challenges that transcended national borders, a typical characteristic of emerging threats of the late twentieth century (Katsumata 2004: 239–41; Narine 2005: 478). Regional paralysis in the face of the 1997 financial crisis, which crippled East Asian economies, and the Indonesian haze of the same year, which produced trans-boundary atmospheric pollution, helped cast doubt on the merits of the ‘ASEAN way’ and served as catalysts for the reconsideration of non-interference (Narine 2005: 478). At the same time, within the context of the global evolution of humanitarianism described earlier, the expansion of ASEAN to include Laos, Myanmar, Cambodia and Vietnam – some of whom, especially Myanmar, had very poor human rights records – in 1997 and 1998, undermined the Association’s international legitimacy (Simon 2008: 269). ASEAN’s relations with Myanmar serve as the most pertinent illustration of the Association’s gradual move towards a more flexible understanding and application of non-interference. With the prospect of Myanmar’s inclusion in ASEAN in the late 1990s, concerns were raised over the possibility that membership would extend legitimacy to the ruling junta whose mass human rights abuses and violent suppression of the main opposition party, the League for National 247

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Democracy (NLD), had earned it international condemnation (Ramcharan 2000: 66). Further disquiet was expressed regarding the potential ramifications for ASEAN’s external relations, particularly with the EU and the US who staunchly opposed Myanmar’s admission, boycotting ASEAN meetings and warning that Myanmar’s admission would ‘complicate’ political and economic relations (Ramcharan 2000: 66). Attempts at ‘constructive engagement’ with Myanmar, premised on the conviction that economic and political cooperation was more productive than punitive measures in encouraging improvement in the country’s internal situation, were unsuccessful and both embarrassing and politically damaging for ASEAN (Ramcharan 2000: 66–67, 73–74). While the broader normative movement towards the rise of human rights served as the undertow, Myanmar’s continued resistance to reform provided the immediate catalyst, and Thailand the driving force, for more overt attempts to introduce a flexible notion of non-interference (Katsumata 2004: 248–49). A combination of sympathy towards emergent humanitarianism and self-interest derived from the negative effects of Myanmar’s political volatility (which included cross-border drug smuggling and skirmishes, substantial flows of refugees and economic migrants, and terrorist-style hijackings) propelled Thailand to propose reforms to non-interference (Katanyuu 2006: 829). In July 1998, Thai Foreign Minister Surin Pitsuwan proposed a reinterpretation of the principle of non-interference in the form of ‘flexible engagement’ to allow for open and frank discussion of internal affairs of states that had trans-boundary effects (Pitsuwan 1998). He argued that ‘ASEAN members perhaps no longer can afford to adopt a non-committal stand and avoid passing judgement on events in member’s countries’, acknowledging that if ASEAN failed to address the ongoing challenges of globalisation and interdependence, the Association’s credibility and capacity to promote and protect its interests would erode. Unsurprisingly the proposal was rejected by Myanmar and all other ASEAN states, with the exception of the Philippines, on the grounds that to countenance interference would undermine regional stability (Narine 2005: 480). After an extensive debate ‘flexible engagement’ was replaced with ‘enhanced interaction’, which permitted individual states to comment on their neighbour’s domestic activities if they effected regional concerns, but reaffirmed the Association’s commitment to non-interference (Simon 2008: 272). Yet this was still a revision – albeit a slight one – to the application of non-interference. Despite rejecting a doctrinal formula permitting criticism, in practice some ASEAN members adopted a more flexible stance on non-interference. In 1998, the Philippines and Indonesia criticised Malaysian Prime Minister Mahathir Mohamad for sacking and jailing Deputy Prime Minister Anwar Ibrahim (Acharya 1999: 430). In retaliation, the Malaysian government criticised public condemnation of its actions, questioned the legitimacy of the Indonesian government and raised the possibility of blocking Filipino and Indonesian workers from employment in Malaysia, cancelled security exercises with the Philippines military and even suggested it might support Malaysian insurgency in the Philippines – a particularly strange way of ensuring respect for non-interference (Narine 2005: 480). However, emerging humanitarian norms further stretched the boundaries of non-interference when the possibility of external international intervention was put on the table in the wake of the mass killings by Indonesian militias that followed East Timor’s 1999 referendum favouring independence. Vietnam opposed any external involvement, fearing NATO’s recent intervention in the Balkans was setting a pretext for armed interference in the affairs of developing states not authorised by the UN Security Council (Narine 2005: 478–79). Malaysia, on the other hand, once an ardent advocate of strict non-interference and vocal opponent of humanitarian intervention (Narine 2005: 479), evincing a change of thinking about interfering to alleviate human suffering, voted against a draft Security Council resolution condemning NATO for its armed intervention in Kosovo and participated 248

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in the INTERFET force (Asia-Pacific Centre for the Responsibility to Protect 2009: 33). In addition, the Philippines joined Thailand in welcoming and participating in INTERFET. Although INTERFET enjoyed formal Indonesian consent, it is important to stress that this consent was coerced by US threats to veto the extension of World Bank loans, which would have crippled the Indonesian economy so soon after the financial crisis (Locke and Ladnier 2002: 5). More striking moves towards a more flexible understanding of non-interference began in December 2003 with the Forum on International Support for National Reconciliation in Myanmar (‘Bangkok Process’). This was an unprecedented move in which ASEAN invited Myanmar and other influential global actors to discuss the internal situation in Myanmar (Simon 2008: 272). It formed part of a larger Thai plan of ‘forward engagement’ aimed at promoting democracy and reconciliation in Myanmar (Katanyuu 2006: 830–31). The participation of ASEAN states previously more inclined to support non-interference indicated that many had come to accept the view that some events inside a country’s borders could not be described as internal affairs if they had trans-boundary consequences. Malaysia, for instance, remarked that member states could not ‘allow non-interference to shield’ the deteriorating situation in Myanmar (Katanyuu 2006: 837). Similarly, Indonesia indicated that states could not ‘claim gross violations of human rights as a domestic matter’ and that such issues ought to be discussed at the ASEAN level (Katanyuu 2006: 840). Despite these moves, tensions between ASEAN and the West over human rights in Myanmar were further exacerbated by the prospect of Myanmar assuming the ASEAN chair in 2006. To have allowed Yangon to take the chair would have afforded the junta legitimacy and given it influence over the ASEAN agenda (Katanyuu 2006: 842). Western opposition was made abundantly clear when the EU cancelled scheduled economic and financial ministerial meetings with ASEAN in 2004 and the US Secretary of State Condoleezza Rice declined to attend the 2005 ARF (Katanyuu 2006: 842–43). To counter the potential political and economic losses stemming from these problems, several ASEAN leaders acting through the Inter-Parliamentary Myanmar Caucus (itself symbolic of the increasing acceptance of political commentary and regional involvement in domestic affairs) called for Myanmar to forgo the chairmanship (Simon 2008: 272–73). What is more, Indonesia’s decision in 2007, to abstain rather than oppose a draft UN Security Council resolution imposing economic sanctions on Myanmar for its continuing human rights abuses, indicates a changing conception of the principle of non-interference, and reflects some recognition that sovereignty cannot be used as a shield for violations of fundamental human rights (Asia-Pacific Centre for the Responsibility to Protect 2009: 26). Finally, the ASEAN Charter, ratified in 2009, represented a compromise between noninterference and the application of a more flexible concept to achieve collective goals. Article 1(7) committed member states to the protection of human rights and democracy (ASEAN 2007). These were both issues historically outside the bounds of legitimate regional discourse (Wirajuda 2006; Asia-Pacific Centre for the Responsibility to Protect 2009: 22–23). On the other side of the ledger, the Charter formally recognised non-interference and maintained consensus-based decision making, which effectively protects member states from interference by requiring consent. However, there are chinks in the armour of consensus decision making. Article 21(2) of the Charter preserves the more recently adopted ASEAN-minus-X method of voting to allow dissenting states to opt out of collective decisions in relation to economic matters. Not only does this prevent one state from prejudicing progress of the organisation, it allows ASEAN to make collective decisions regarding one state in particular, something the Association was hitherto loath to do. Despite the obvious limits, the formalisation of a more flexible method of 249

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voting still signifies that the concept of interference is evolving, at least in relation to economic affairs. In summary, both R2P and non-interference have undergone revision in the past few years. On the one hand, as other contributions to this volume make clear, international negotiations about R2P have altered the principle by focusing it on the prevention of genocide and mass atrocities, state capacity and embedding it in existing international law, thereby limiting its capacity to legitimise coercive interference. On the other hand, as outlined in this chapter, the past decade or so has seen evidence of a more flexible approach to non-interference in Southeast Asia. These shifts suggest the potential for R2P to be localised through an accommodation between this principle and non-interference. The following section looks for evidence of this accommodation in two recent cases: the region’s response to Cyclone Nargis and the position adopted by Southeast Asian governments at the 2009 General Assembly debate on R2P.

Towards accommodation? Cyclone Nargis On 3 May 2008, Cyclone Nargis struck Myanmar, devastating the Irrawaddy delta area and leaving much of the region under water. Approximately 138,000 were left dead or missing in the cyclone’s wake (Haacke 2009: 156). Around 1.5 million people were displaced by the cyclone (estimates vary between 1.2 and 1.9 million). Despite the massive scale of the humanitarian catastrophe confronting Myanmar and the government’s obvious inability to respond in an effective and timely fashion, the country’s military regime initially blocked access to humanitarian agencies, inhibiting the delivery of urgently needed supplies and medical assistance. NGOs, UN agencies and states offered assistance but Myanmar’s military government was slow to issue visas for foreign aid workers and UN personnel, and insisted on distributing the aid itself – raising fears that much of the cash and supplies would be siphoned off by the military. The junta also restricted the movement of aid workers, fearing that they might distribute prodemocracy propaganda and encourage social unrest. The UN’s Office for the Coordination of Humanitarian Affairs (OCHA) and Oxfam reported that, at the most, only a quarter of the required aid was being allowed into Myanmar and that the aid that did arrive was not being effectively distributed. Reports also began to emerge of military officers hoarding aid for themselves and selling it on the black markets (‘World Fears for Plight of Myanmar Cyclone Victims’ 2008). Frustrated by this lack of progress, the French foreign minister, Bernard Kouchner, proposed that the UN Security Council invoke R2P in order to deliver aid without the consent of the Myanmar government. Kouchner’s proposal was rejected by China’s and ASEAN’s representatives on the Security Council – Indonesia and Vietnam – all of whom argued that the R2P did not apply to natural disasters. Supporting China’s view that the situation in Myanmar should not be placed on the UN Security Council’s agenda, Indonesia stated that ‘there are other better forums to discuss the humanitarian dimension of the Myanmar situation’ and that ‘the last thing we would want is to give a political spin to the technical realities and the situation on the ground’ (Security Council Report 2008: 3). ASEAN governments maintained that Myanmar must not be coerced into accepting humanitarian assistance and rejected the possibility of forcibly delivering supplies without the junta’s consent. The views of China, Indonesia and Vietnam hardened after Kouchner’s proposed invocation of the R2P, as they did not believe that the principle applied in this case and because they were concerned about the potential for the principle’s scope to be broadened, widening the potential for coercive interference in domestic affairs. 250

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It might be thought that the positions taken by Indonesia and Vietnam support the view that Southeast Asia is generally hostile to R2P. However, recognising the international condemnation being heaped on Myanmar and the expectation that ‘something be done’ about opening humanitarian access, ASEAN took upon itself the role of working with the UN Secretary-General to secure the regime’s acquiescence to the delivery of international aid, and then played a significant role in helping to coordinate the delivery of that aid. To be sure, ASEAN’s response to the cyclone was slow, hesitant and ad hoc. And yet, some ASEAN members and officials thought it appropriate for the Association to engage with this issue, and that some of the region’s parliamentarians and civil society groups expected ASEAN to play a constructive role. This was in sharp contrast to the Association’s role in relation to the earlier crises in Cambodia and East Timor. In both of those cases, ASEAN had assiduously avoided playing a constructive role until actors outside the region had taken the lead and the affected states had granted their consent (Caballero-Anthony 2009: 61–76). ASEAN Secretary-General Surin Pitsuwan called upon all ASEAN member states to ‘provide urgent relief assistance’ to the cyclone’s victims, and three days later the ASEAN Secretariat established the ASEAN Cooperation Fund for Disaster Assistance (Emmerson 2009: 43). The Fund’s terms of reference reflect the political tightrope that the ASEAN Secretariat was walking. On the one hand, careful not to overstep the mark by appearing to be ‘politicising’ humanitarian relief and therefore contravening the principle of non-interference, the terms of reference required that donors not place conditions on the use of their contributions. On the other hand, eager to assure donors that the Fund would not be misused, the terms placed their own conditions on how the Fund might be used, stressing that donations must only be used to alleviate the suffering of the cyclone’s victims (Emmerson 2009: 43). Member states responded with a combination of ad hoc diplomacy aimed at persuading Myanmar to grant humanitarian access and offers of bilateral humanitarian assistance. On 8 May, Thailand’s then Supreme Commander Boonsrang Niumpradit successfully interceded to help secure Myanmar’s consent to the use of US military aircraft to deliver aid. The following day, ASEAN Secretary-General Surin Pitsuwan contacted Myanmar’s leaders requesting that they admit ASEAN relief and rescue teams to assist in the relief effort ‘immediately’ (Haacke 2009: 171). Surin envisioned what he described as a ‘coalition of mercy’ for Myanmar, in which ASEAN would lead a partnership comprising UN agencies and the World Bank in delivering emergency relief and assisting in the reconstruction of the affected areas (Council on Foreign Relations 2008). The generals rejected Surin’s entreaties and only allowed the dispatch of a small Emergency Rapid Assessment Team (ERAT) to assess the water, sanitation, health, logistical and food needs of victims of Cyclone Nargis. The ERAT reported that the humanitarian situation was dire and that there was a major risk of further large-scale death as a result of disease and malnutrition. It proposed that ASEAN lead a humanitarian partnership involving the UN, neighbouring countries and NGOs to deliver much-needed humanitarian relief and assist the government with rebuilding (ASEAN Emergency Response Assessment Team 2008: 4–5). On 19 May, ASEAN held a special foreign ministers’s ‘watershed’ meeting to decide its course of action (Haacke 2009: 173). In a context where ASEAN was coming under increasing pressure to act, the regime’s refusal to grant the Association humanitarian access acted as something of a circuitbreaker. Abandoning a long history of quiet – some might say mute – diplomacy in relation to Myanmar’s human rights record, several Southeast Asian foreign ministers put considerable pressure on Myanmar’s Nyan Win. Indeed, Indonesia’s foreign minister Hassan Wirayuda reportedly suggested that should the junta reject ASEAN’s entreaties a second time, the Association would be unable to prevent the UN Security Council from adopting more coercive measures (Evans 251

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2008: 64). Eventually, Myanmar relented and consented to the establishment the ASEAN Humanitarian Task Force for the Victims of Cyclone Nargis. Although painfully slow, uncoordinated and ad hoc, ASEAN did eventually succeed in persuading the government of Myanmar to grant humanitarian access and in coordinating a major international relief and rehabilitation effort. The Cyclone Nargis episode helped highlight, once again, ASEAN’s institutional incapacity. Despite having agreed guidelines on disaster response, it took the organisation a full two weeks to organise a plan for the coordination of humanitarian relief. Had disease broken out rapidly in the affected areas, the consequences might have been catastrophic. Nonetheless, there were many significant ‘firsts’ for the region. Not least, it involved the first ERAT deployment and the first time that ASEAN had taken the lead in coordinating a major humanitarian effort in partnership with the UN. Indeed, Surin later commented that the effort constituted something of a ‘baptism’ for the Association. Together, these developments represent something of a sea-change, inasmuch as there were regional expectations that Myanmar should permit humanitarian access and that ASEAN had a legitimate role to play in persuading them to do so.

2009 General Assembly debate In July 2009, the UN General Assembly convened to discuss the report, providing an opportunity for Southeast Asian governments to voice their thoughts about R2P. Six ASEAN members – Singapore, Malaysia, Indonesia, the Philippines, Vietnam and Myanmar – participated in the debate, making it a useful barometer of regional attitudes towards the relationship between R2P and non-interference. Somewhat surprisingly, perhaps, there was a high degree of regional consensus and all six agreed on all the main fundamentals about R2P. In particular, they welcomed the Secretary-General’s report and noted that the 2005 World Summit represented the international consensus on R2P and that there was no need to renegotiate that text. The challenge, they agreed, was to implement R2P, not renegotiate it. Indonesia, the Philippines, Singapore and Myanmar explicitly made this point, suggesting a broad consensus. Furthermore, they affirmed the Secretary-General’s identification of the three pillars of the R2P. Within this context, Southeast Asian governments were eager to stress five key points about the nature and scope of the R2P, which provide important insight into how non-interference and R2P might accommodate one another. First, they agreed that the responsibility to protect lies first and foremost with the state. As such, the principle should be understood as an ally of sovereignty (as suggested by the UN Secretary-General), inferring that it does not – and should not – contravene the principle of non-interference. Second, they stressed that R2P applied only to the four specified crimes and their prevention and not to other non-traditional security issues such as AIDS and natural disasters. Attempts to widen the scope of R2P, they agreed, would damage efforts to implement the principle. Third, R2P must be implemented and exercised in a manner consistent with international law and the UN Charter. There was consensus that R2P must not be used to legitimise unilateral coercive interference in the domestic affairs of states, with Singapore adding that R2P does not in itself create any additional legal obligations. Fourth, they agreed that R2P was a universal principle that should be applied equally and fairly in a non-selective fashion – though there was some recognition that decisions about implementation should be taken on a case-by-case basis (the Philippines). Finally, they insisted that the measures related to R2P’s third pillar include more than simply coercion or the use of force. Emphasis, Southeast Asia’s governments agreed, should be placed on peaceful measures under Chapters VI and VIII of the UN Charter. These substantive points evince an interest in limiting the scope of R2P and ensuring that it is applied in a manner consistent with 252

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existing international law, but also reflects basic agreement with the core foundations of the R2P – suggesting an accommodation between the principle and non-interference. Whilst Southeast Asian governments were happy to endorse the principle of R2P, they raised a number of concerns about particular aspects of implementation stemming from the extent to which R2P might require further revision to the principle of non-interference. This was perhaps most obvious in relation to the UN Secretary-General’s call for the establishment of an early warning capacity. In his report, the UN Secretary-General called for the General Assembly to support the strengthening of the UN’s capacity for early warning and analysis of impending episodes of genocide and mass atrocities through the establishment of a small joint office for the Special Representative for the Prevention of Genocide and the Special Adviser for the R2P. Whilst Indonesia supported the Secretary-General’s proposal, Southeast Asian governments raised a number of concerns, which point to fears that an early warning capacity might involve the UN reporting on the domestic affairs of states and thereby further challenging non-interference. Here, it should be stressed that it was China and not Southeast Asia that aired the most strident criticisms, calling for further deliberation in the General Assembly and Security Council about the need for an early warning mechanism (Liu 2009: 23–24). However, Indonesia in particular balanced its support for the idea with concerns about the sources and nature of the information it would use, the fairness and transparency of the assessment process, and the presence of safeguards to prevent politicisation, suggesting a degree of ambivalence about the proposal on the grounds of its putative challenge to non-interference. Concerns were also expressed about the capacity of R2P to expand the role of the Security Council in coercing states that did not comply with their R2P and the need for guidelines to direct the Council’s decision making in this area. There was therefore some support for the view that the Council should articulate policies, principles and rules to guide when coercive force is needed, the general tenor being that these should be aimed at limiting the Council’s room for manoeuvre. Also, Malaysia issued a powerful note of caution arguing that there was a danger that the redirection of aid for R2P-related capacity-building purposes might create further aid conditionalities and might undermine the authority of the state by strengthening civil society, both of which would be inimical to R2P. Finally, Malaysia also added that there was need for further clarity about the responsibility of states to prevent the incitement of the four R2P-related crimes, arguing that states could not be held to account for failing to prevent something that was not apparent at the time and that, even if they could, no international body had the authority to do so. From this brief discussion it is possible to see the emergence of an accommodation between R2P and the principle of non-interference based on subtle revisions to both. Since its inception in 2001, R2P has been amended to make it narrower in scope and more compliant with existing international law, with the result being that it presents less of a direct challenge to noninterference. This interpretation of R2P was clearly apparent in the points of consensus agreed by Southeast Asian countries at the 2009 General Assembly debate. There remain, however, important concerns that R2P might legitimise an expanded regime of interference in the domestic affairs of states, and the concerns raised by Southeast Asian governments were primarily concerned with limiting that danger.

Conclusion Many Southeast Asian governments recognise that there is a tension between traditional conceptions of sovereignty and the need to protect people in humanitarian crises (Locke and Ladnier 2002: 1; Morada 2006: 61). In the face of domestic pressure from newly assertive civil society groups, external pressure from the West and regional challenges (particularly those associated by 253

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Myanmar), ASEAN has allowed the principle of non-interference to evolve in a way that reflects a degree of receptivity to principles associated with R2P (Korean National Commission for UNESCO 2004: 265). Thus, many Southeast Asian states are moving away from the traditional notion of sovereignty and towards accepting a localised variant of sovereignty as responsibility. Singapore, for example, has even gone so far as to argue that ‘narrow notions of sovereignty no longer hold today’ (Jayakumar 2005: 21). The clearest illustrations of this normative shift towards an accommodation between R2P, sovereignty and responsibility, and non-interference are the region’s responses to Cyclone Nargis, and the opinions expressed at the 2009 General Assembly debate. In relation to the former, although the response was slow and tentative, many of the region’s governments recognised that they had a responsibility to explore ways of securing humanitarian access. Just as significantly, ASEAN was seen as the vehicle through which a humanitarian response should be organised. In relation to the General Assembly debate, Southeast Asian governments explicitly endorsed most of the fundamentals of R2P. These states are also engaged in dialogue about implementing R2P. Unsurprisingly, they are more inclined to support the first two pillars of R2P as they do not overtly contemplate non-consensual interference, and also because such policies promote state consolidation, economic development and capacity building. Important concerns remain, however, about the potential for interference and non-consensual measures. But this confirms the view that R2P is undergoing localisation. The process through which the norm is becoming embedded in Southeast Asia is not one wherein local actors simply import global norms, but one of negotiation and revision where a new norm is made consistent with established norms in a manner that alters both the new norm (R2P) and those more established norms (non-interference). The implementation of R2P in Southeast Asia therefore depends not on its ability to override non-interference but rather on its capacity to come to a deeper accommodation that preserves elements of both.

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Council on Foreign Relations (2008) A Conversation with Surin Pitsuwan, 14 May. Available at http://www. cfr.org/publication/16284/conversation_with_surin_pitsuwan_rush_transcript_federal_news_service.html (accessed 16 November 2009). Davide, Hilario G. Jr. (2009) Statement by H. E. Hilario G. Davide Jr., Permanent Representative of the Republic of the Philippines to the United Nations at the 97th Plenary Meeting of the United Nations General Assembly on the Question of the Responsibility to Protect (A/63/PV.97), 23 July. New York: United Nations. Dow Jones (2008) Transcript of Interview of Minister of Foreign Affairs George Yeo with the Local Media on the ASEAN Ministerial Meetings, 16 July. Available at http://app.mfa.gov.sg/2006/press/view_ press_print. asp?post_id=4173 (accessed 16 November 2009). Emmerson, Donald K. (2009) ‘Critical Terms: Security, Democracy and Regionalism in Southeast Asia’, in Donald K. Emmerson (ed.) Hard Choices: Security, Democracy and Regionalism in Southeast Asia, Singapore: ISEAS, pp. 3–58. Evans, Gareth (2008) Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All, Washington, DC: The Brookings Institution. Haacke, Jurgen (2009) ‘Myanmar, the Responsibility to Protect and the Need for Practical Assistance’, Global Responsibility to Protect 1(2): 156–84. International Human Rights Clinic at Harvard Law School (2009) Crimes in Burma, May. Cambridge, MA: International Human Rights Clinic. Jayakumar, S. (2005) Statement by H. E. Professor S. Jayakumar, Deputy Prime Minister, Co-ordinating Minister for National Security and Minister for Law of the Republic of Singapore at the High-level Plenary Meeting of the 60th Session of the United Nations General Assembly (A/60/PV.8), 16 September. New York: United Nations. Johnstone, Alistair Iain (2007) Social States: China in International Institutions, 1980–2000, Princeton, NJ: Princeton University Press. Katanyuu, Ruukun (2006) ‘Beyond Non-Interference in ASEAN: The Association’s Role in Myanmar’s National Reconciliation and Democratization’, Asian Survey 46(6): 825–45. Katsumata, Hiro (2003) ‘Reconstruction of Diplomatic Norms in Southeast Asia: The Case for Strict Adherence to the “ASEAN Way”’, Contemporary Southeast Asia 25(1): 104–21. ——(2004) ‘Why is ASEAN Diplomacy Changing? From “Non-Interference” to “Open and Frank Discussions”’, Asian Survey 44(2): 237–54. Korean National Commission for UNESCO (2004) Human Security in East Asia: International Conference on Human Security in East Asia, Seoul: Ilmin International Relations Institute for Korea University. Available at http://www.unesdoc.unesco.org/images/0013/001365/136506e.pdf (accessed 27 March 2009). Krasner, Stephen D. (1999) Sovereignty: Organized Hypocrisy, Princeton, NJ: Princeton University Press. Liu, Zhenmin (2009) Statement by H. E. Mr Liu Zhenmin, Ambassador and Deputy Representative of China to the United Nations at the 101st Plenary Meeting of the United Nations General Assembly on the Question of the Responsibility to Protect (A/63/PV.98), 24 July. New York: United Nations. Locke, Mary and Ladnier, Jason (2002) Perspectives from Asia on Military Intervention: Conference Summary. Available at http://www.fundforpeace.org/publications/reports/reports.php (accessed 27 March 2009). Luck, Edward C. (2008) ‘The Responsible Sovereign and the Responsibility to Protect’, Annual Review of United Nations Affairs 2006/2007 Volume 1, New York: Oxford University Press. Menon, Vanu Gopala (2009) Statement by H. E. Vanu Gopala Menon, Permanent Representative of the Republic of Singapore to the United Nations at the 98th Plenary Meeting of the United Nations General Assembly on the Question of the Responsibility to Protect (A/63/PV.98), 24 July. New York: United Nations. Minn, U Kyaw Zwar (2009) Statement by H. E. Mr Kyaw Zwar Minn, Deputy Permanent Representative of the Union of Myanmar to the United Nations at the 100th Plenary Meeting of the United Nations General Assembly on the Question of the Responsibility to Protect (A/63/PV.100), 28 July. New York: United Nations. Morada, Noel M. (2006) ‘R2P Roadmap in Southeast Asia: Challenges and Prospects’, UNISCI Discussion Papers 11: 59–70. Narine, Shaun (2002) Explaining ASEAN: Regionalism in Southeast Asia, Boulder, CO: Lynne Rienner Publishers. ——(2005) ‘Humanitarian Intervention and the Question of Sovereignty: The Case of ASEAN’, Perspectives on Global Development and Technology 4(3–4): 465–85. Natalegawa, Raden Mohammad Marty Muliana (2009) Statement by H. E. R. M. Marty M. Natalegawa, Permanent Representative of the Republic of Indonesia to the United Nations at the 97th Plenary Meeting of the United Nations General Assembly on the Question of the Responsibility to Protect (A/63/PV.97), 23 July. New York: United Nations.

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Alex J. Bellamy and Catherine Drummond New York Times (2008) ‘World Fears for Plight of Myanmar Cyclone Victims’ (13 May). Pitsuwan, Surin (1998) Opening Statement by His Excellency Dr. Surin Pitsuwan Minister of Foreign Affairs of Thailand at the 31st ASEAN Ministerial Meeting, 24 July. Available at http://www.asean.org/4519.htm (accessed 2 May 2009). Ramcharan, Robin (2000) ‘ASEAN and Non-interference: A Principle Maintained’, Contemporary Southeast Asia 22(1): 60–88. Security Council Report (2008) Update Report: Myanmar, No. 4, 14 May. Available at http://www.security councilreport.org/site/c.glKWLeMTIsG/b.4130257/k.FB74/Update_Report_No_4_br_Myanmar_br_ 14_May_2008.htm (accessed 16 November 2009). Simon, Sheldon (2008) ‘ASEAN and Multilateralism: The Long, Bumpy Road to Community’, Contemporary Southeast Asia 30(2): 264–92. United Nations Office for the Coordination of Humanitarian Affairs (2008) Cyclone Nargis OCHA Situation Report No. 30, 11 June. Available at http://ochaonline.un.org/MyanmarSituationReports/tabid/4600/ Default.aspx (accessed 24 January 2012). Wirajuda, N. Hassan (2006) Challenges and Opportunities for Human Rights in a Caring and Sharing Community, 18 December. Available at http://www.indonesia-ndone.org/information/details.p hp?type=speech&id=130 (accessed 20 March 2009). World Federalist Movement Institute for Global Policy – Responsibility to Protect Engaging Civil Society (2008) Global Consultative Roundtables on the Responsibility to Protect: Civil Society Perspectives and Recommendations for Action. Available at http://www.responsibilitytoprotect.org/index.php?module=uploads&func=down load&fileId=68 (accessed 29 March 2009). Zainuddin, Zainol Rahim (2009) Statement by H. E. Zainol Rahim Zainuddin, Charge d’Affaires of the Permanent Mission of Malaysia to the United Nations at the 101st Plenary Meeting of the United Nations General Assembly on the Question of the Responsibility to Protect (A/63/PV.101), 28 July. New York: United Nations.

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19 R2P IN THE MIDDLE EAST AND NORTH AFRICA Mojtaba Mahdavi

Human beings are members of a whole/ In creation of one essence and soul If one member is afflicted with pain/ Other members uneasy will remain If you have no sympathy for human pain/ The name of human you cannot retain. Twelfth-century Iranian poet, Sa’adi

Introduction The events unfolding before our eyes in Egypt, Tunisia, Yemen, Bahrain, Iran, Syria, and Libya have turned the Middle East and North Africa (MENA) into a social laboratory of theories of social movements and doctrines of humanitarian intervention. Tunisia and Egypt are two prime examples of relatively successful grassroots socio-political changes from within. The use of naked violence against civilians by Gaddafi’s regime facilitated foreign intervention in Libya; this has turned Libya into the first test case of the implementation of the R2P doctrine in the MENA. Civil unrests in Syria, Yemen, Bahrain, and Iran have not achieved a swift victory against their regimes. These regimes have systematically murdered their population and failed to live up to their obligations to protect civilians. Iran and Syria, two opponents of the US hegemony in the region, and Yemen and Bahrain, two allies of the United States, committed crimes against humanity by killing civilians in peaceful civil protests. Moreover, the military intervention of the closest US ally in the region, Saudi Arabia, in Bahrain and its full support to the Yemeni regime exacerbated the systematic violation of human rights in Bahrain and Yemen. However, the R2P doctrine has not been implemented in any of those cases to protect civilians from the regime’s atrocity. Moreover, the US-led invasion of Iraq in 2003, the war in Afghanistan and the Global War on Terror (2001–present), as well as the old question of Israel–Palestine, and particularly the Israel–Gaza war of 2008–9, remain points of contention for the implementation of the R2P doctrine in the region. This chapter is an attempt to problematize the implementation and interpretation of the R2P doctrine in the MENA. It aims to examine and answer the following key questions: To what extent is the enforcement of the R2P doctrine in the MENA just, fair, consistent, and constructive? To what extent has a selective, arbitrary, paternalistic, and punitive enforcement of the doctrine of humanitarian intervention turned the Middle East into “the underclass of the international legal order?”1 To what degree does the interference of international actors/factors exacerbate or 257

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improve the people’s position? Whether and how does the implementation of the R2P doctrine within the current structure of international politics help or hinder improving human rights in the region? Are the people of the region capable of bringing progressive changes from within, or do they need foreign intervention to bring changes? Does the implementation of the R2P doctrine reinforce the hegemonic neo-liberal international power relations, or does it strengthen people’s position? The chapter is divided into two parts. First, it will outline the political and intellectual origins of R2P at three phases, followed by a brief examination of the implications of the R2P doctrine/ norms in practice. Second, it will problematize the application and implication of the R2P doctrine/norms in the context of the MENA. The conclusion suggests that the question is not to act or to not act; inaction is not an option. Rather, the question remains “who has the responsibility to protect whom under what conditions and toward what end?”2 It examines whether and how the norms and practice of R2P in the region “puts people first” and is capable of transforming “promise into practice and words into deeds.”3

I. R2P: origins and implications The R2P doctrine is only a new chapter in the old history of promotion and protection of human rights. At the risk of sacrificing comprehensiveness for parsimony, it is possible to categorize the politico-intellectual origins of R2P into three distinct phases. The first phase is probably marked by the adoption of the Genocide Convention by the UN General Assembly. The UN adopted the Convention on the Prevention and Punishment of the Crimes of Genocide in 1948 and put it into practice in January 1951.4 The next major step in the first phase was taken in November 1968, when the UN General Assembly resolution 2391 acknowledged war crimes and crimes against humanity as two major legally binding crimes in international law.5 The second phase begins with the end of the Cold War in the early 1990s. This new era marked the beginning of a new chapter in international law in response to structural changes in global politics, ranging from the collapse of the Soviet Union to the escalation of mass killings in Liberia, Somalia, Rwanda, and former Yugoslavia, among others. The UN Security Council openly recognized the use of humanitarian intervention in reference to Chapter VII of the UN Charter.6 The third phase is marked by the adoption of the R2P doctrine at the UN World Summit in 2005 and is seen as a paradigm shift from the twentieth-century narrative of humanitarian intervention to a new doctrine of Responsibility to Protect. The R2P doctrine challenged certain key assumptions/norms in international ethics and redefined the relationship between state sovereignty and humanitarian intervention. Responsibility to Protect differs from humanitarian intervention in that the latter, Gareth Evans argues, “remained so inherently one-sided, not in any way acknowledging the anxieties of those in the global South who had too often been the beneficiaries of missions civilisatrices in the past.”7 What does the R2P doctrine mean in practice? How different are its norms from previous norms of humanitarian intervention? To what extent is it a paradigm shift in the discourse of global ethics and cosmopolitan justice? These are some key questions which warrant closer and critical inquiries. First, R2P norms imply a people-centered approach/doctrine in international politics. It attempts to “put people first.” In theory it replaces a realist, state-centered, and militant concept of security with a new concept of “human security.”8 Second, R2P norms challenge the dichotomy of state sovereignty and global responsibility to protect/promote human rights. The concept of “sovereignty as responsibility” says that the state is responsible and accountable to its people; the people are the real sovereign and the state is 258

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their delegate/agent.9 It also entails that sovereignty is a joint function, meaning that the international community is responsible to protect human rights and help/check the humanitarian standards of citizens of other states should the state be unable or unwilling to protect the rights of its citizens. In other words, “sovereignty as responsibility” has internal and external dimensions. Sovereignty becomes a joint function of the states, to be protected and shared when necessary.10 Third, the guiding principle of R2P norms proposes a discursive paradigm shift from the alleged “right” of potential interveners to the “responsibility” of the international community at large to protect the people at risk. This implies that the R2P doctrine is/should be different from other twentieth-century humanitarian intervention paradigms.11 Fourth, the R2P doctrine is built on three inseparable pillars: Responsibility to Prevent, Responsibility to React, and Responsibility to Rebuild. This implies that the R2P doctrine clearly distances itself from a one-dimensional military doctrine of humanitarian intervention. It clearly underlines the responsibility of international community before, during, and after a case. The first pillar of R2P, Responsibility to Prevent, aims at tackling “both root causes and direct causes of internal conflict and other man-made crises putting population at risk.”12 This refers to Article 55 of the UN Charter, which calls for respect for human rights and higher standards of political, economic, and social welfare.13 The second pillar, Responsibility to React, implies that UNSC is the primary international body to mandate political, economic, legal, and military intervention in accordance with Article 41 and 42 of the UN Charter under Chapter VII. The ICISS Report states that political measures such as travel sanctions, economic sanction, and legal measures through ICC trails are the first options, and military measures are the last resort, mandated by UNSC. The third pillar, Responsibility to Rebuild, indicates that the international community is responsible for post-conflict rebuilding through socio-economic development, the brokering of national reconciliation, and the stabilizing of political institutions. In sum, the R2P doctrine, in theory, is an attempt to move away from a military humanitarianism toward a critical, comprehensive, multidimensional, and humanist approach to tackle structural and non-structural causes of violation of human rights before, during, and after the crime. The question is to what extent this doctrine is capable of transforming “promise into practice and words into deeds.”14 The next section problematizes the implementation and interpretation of the doctrine in the context of the MENA.

II. R2P in the MENA: “Responsibility to Protect” and/or “Right to Punish?” Ramesh Thakur, one of the 12 high-profile individual authors of ICISS, best explains how the R2P doctrine is often perceived in the Global South including the MENA: “They” (the European colonizers) came to liberate “us” (the colonized natives) from our local tyrants and stayed to rule as benevolent despots. In the name of enlightenment, they defiled our lands, plundered our resources and expanded their empires.… Should they be surprised that their fine talk of humanitarian intervention translates in our consciousness into efforts to resurrect and perpetuate rule by foreigners? That we look for the ugly reality of geostrategic and commercial calculations camouflaged in lofty rhetoric? Should we be mute accomplices when they substitute their mythology of humanitarian intervention for our narratives of colonial oppression? Do they think we do not remember or do not care, or is it simply that they themselves do not care?15 259

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Similarly, in his background note of 2009, then UN General Assembly President Father Miguel D’Escoto Brockmann of Nicaragua described R2P as “redecorated colonialism,” to “justify arbitrary and selective interventions against the weakest states.” He also raised serious concern over the double standard in the implication of R2P and the absence of enforceable accountability on the abusers of the R2P doctrine.16 The 2009 UN General Assembly debates on R2P, in sum, revealed differences between some members of the Global South and Global North on the implementation of R2P doctrine. Mahmood Mamdani echoes Miguel D’Escoto Brockmann’s critique of the R2P doctrine. He argues that the end of the Cold War brought a new “systematic shift” in international politics. Such a shift signaled “an international humanitarian order that promises to hold state sovereignty accountable to an international ‘human rights’ standard.”17 There is nothing entirely new about this international humanitarian order; rather, “it draws on the history of modern western colonialism.”18 Although, in theory, it differs from old forms of interventions, in practice it is not. The R2P doctrine, Mamdani argues, “is not an antidote to international power relations but its latest product.” We must problematize the politics of this order. More specifically, “the discourse on ‘rights’ emerged historically as a language that claimed to define limits of power. Their political ambition was to turn victims into agents of resistance. Today, the overwhelming tendency is for the language of rights to enable power.… It seeks to turn victims into so many proxies. It justifies intervention by big powers as an antidote to malpractices by newly independent small states.”19 According to Mamdani, this new language of international humanitarian order refers to its subjects not as bearers of rights – and thus active agents in their own emancipation – but as passive beneficiaries of an external “responsibility to protect.” Rather than right-bearing citizens, beneficiaries of humanitarian order are akin to recipients of charity. Humanitarianism does not claim to reinforce agency, only to sustain bare life. If anything, its tendency is to promote dependency. Humanitarianism heralds a system of trusteeship.20 In this context Edward Said’s concept of Orientalism is applied to the international politics of the MENA, where people of the Orient are perceived as passive recipients of Western charity, not active agents of their own grassroots, bottom-up emancipation. The Orient lacks internal dynamism for a sustainable progressive change from within; it cannot represent its own interests; it must be represented by the Other.21 Furthermore, the selective and arbitrary enforcement of international law in the region has reinforced the perception of Middle East exceptionalism. It is in this context that one needs to examine the implication of the R2P doctrine in the MENA region. As discussed earlier, the R2P doctrine constitutes three inseparable pillars of responsibility to prevent, to react, and to rebuild. Responsibility to react is often used at the cost of the other two pillars. Most often the dominant structure of international politics and the logic of realpolitik deter and discourage international community from assuming the responsibilities to prevent and rebuild.22 Moreover, it is often difficult to prevent crimes if there is no consensus over the root causes of conflicts/crimes.23 Interests of strong powers often hinder the international community tackling the root causes of crimes/conflicts. Rather, interests and policies of strong power centers feed into the root causes of crimes/conflicts. The Western intervention in the MENA during the Cold War and the policy of the Global War on Terror in post-Cold War/post-9/11 fostered and cultivated the root causes of violent extremism and terror in the region. The policy of prioritizing stability over democracy, and geopolitics over human rights, together with supporting the friendly tyrants, and pursuing the policy of containment and free flood of cheap oil nourished people’s anger, frustration, and violent extremism. Advocates of the R2P doctrine would simply 260

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reject this argument because the R2P norms put people first. However, there is an old history, lived memory/perception, and clear evidence of neocolonialism in the region. History together with the current double-standard policies reinforced the idea that the R2P doctrine is a new intellectual, legal, and political product of the unjust hegemonic global order. The presence of the US and allies in Afghanistan, the crisis of nation building, and the instability and corruption, together with a lack of a comprehensive policy toward human security contributed to more radicalization of the Pashtun community and the resurgence of the Taliban. According to Peter Galbraith, the former deputy UN envoy to Afghanistan, the US “is pursuing a counterinsurgency strategy in Afghanistan and, as General Stanley McChrystal observes, the center of gravity in counterinsurgency is the people.” The Bush administration played a major role in installing President Hamid Karzai in 2002 and he is in office as a result of a rigged election in 2009. For many Afghans, Karzai is no more than a mayor of Kabul – a president of a “corrupt,” “ineffective,” and “illegitimate” government. Hence the government, “the keystone of American strategy,” is in a deep legitimacy crisis. “As long as victory is defined as the defeat of the Taliban insurgency, the war in Afghanistan is not winnable.” This is an unwinnable war because the US has no “credible Afghan partner and there is no prospect that one will emerge.”24

Iraq: a new system of trusteeship? The selective and arbitrary enforcement of international law in the Middle East is not new. A selective and punitive enforcement of international law has reinforced “the perception regarding the qualitative Exceptionalism of the Middle East.”25 The following cases took place before the adoption of the R2P doctrine at the UN World Summit in 2005. However, they clearly identify a lived memory/perception in the region that the international community has either failed to act or act properly because both inaction and a type of action have been determined by realpolitik. Take the case of the Iran–Iraq War (1980–8), the longest war since the Second World War. Iraq under Saddam Hussein invaded Iran in 1980, but UNSCR 589 under Chapter VII of the UN Charter only enforced a ceasefire in 1988. Post-revolutionary Iran was hostile to US policies in the region and Saddam Hussein was instrumental in stopping its neighbor. The same passive policy applied to the Israeli invasion and occupation of southern Lebanon (1982–2000), as the UNSC failed to enforce Chapter VII of the UN Charter. However, the UNSC quickly authorized the United States and its allies to evict Iraqi forces from Kuwait in 1991, while Southern Lebanon remained occupied by Israel during the same time. Moreover, the act of genocide in March 1988, which cost the lives of some 5,000 Kurds in Halabja, a Kurdish city in Iraq, went unpunished by Saddam Hussein’s allies. Russia, France, and the United States continued to support the Iraqi regime in its war against Iran and its own people. In the wake of the Halabja genocide, the US administration under George W. Bush “did everything possible to squelch American outrage and block congressional sanctions against Iraq.”26 Indeed, the number of American licenses for exporting dual-use chemical technology to Iraq was increased by 50 percent.27 Equally problematic is a type of action determined by certain interests. UNSCR 661 imposed a comprehensive sanctions regime against Iraq that remained in place for a decade. Two years after the Halabja genocide, the sanctions maintained mainly by Britain and the United States were responsible for the death of half a million to one million Iraqi citizens, mostly children.28 According to the most conservative account, the sanctions regime cost the deaths of 227,000 children under five and hundreds of thousands of Iraqi deaths.29 The 1991 war and the sanctions regime together transformed Iraq “to a pre-industrial age.”30 The sanctions regime did not promote or protect human rights; rather it punished the Iraqi people. It caused “great suffering, 261

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serious injury to body or to mental or physical health” of the entire population and as such it was a crime against humanity.31 Such a humanitarian catastrophe “resembled the crime against humanity known as ‘extermination’,” in other words “a widespread or systematic attack directed against any civilian population” as elaborated in Article 7 of the Statute of the International Criminal Court. The sanctions, in sum, weakened the regime but at the cost of killing its people. Moreover, the sanctions weakened Iraqi civil society and destroyed the Iraqi middle class, the main agents for change from within. Hence, it paved the way for another destructive reaction against the Saddam Hussein regime, meaning the US-led military invasion of 2003. Hence, inactions and actions have been determined by realpolitik.32 According to Kenneth Roth, there was not a “humanitarian motivation” in the 2003 Iraq War for a number of reasons: the Bush administration was not willing to approach the International Criminal Court and rushed to wage a war on some unfounded allegations; the war was not the “last reasonable option.” The war did not maximize protection for Iraqi civilians because “several hundred thousand troops were needed to avoid postwar chaos.” This was clearly not a concern for the Bush administration. “Rumsfeld liked the Afghanistan war – a handful of special forces on the ground and a lot of very high-tech bombing.” Moreover, the war in many important respects “did not comply with international humanitarian law, the laws of war, and the Geneva Conventions.” For example, the US army used cluster munitions, which “explode in the sky and scatter over a wide area in southern Iraq, and cost the lives of some 1,000 people.” Furthermore, the UN Security Council or a comparable multilateral body did not approve of the War. It was much easier to justify humanitarian intervention to stop the massacre of the Kurds in 1988, or to stop the suppression of the uprising in 1991. However, “there was nothing even close to that level of killing taking place in March 2003.”33 The efforts to justify the Iraq War “in humanitarian terms has been a disaster for the concept of humanitarian intervention.” This was not a just war.34 It is evident that the US and its allies waged the war based on a few unfounded claims, including the possession of WMD, and the regime’s links with al-Qaeda and the 9/11 attacks. Moreover, the former chief UN nuclear inspector and Nobel Peace Prize-winning Mohamed El-Baradei suggests in a new memoir that Bush administration officials should face international criminal investigation for their “deliberate deception” or “grotesque distortion” on weapons of mass destruction, despite contrary evidence collected by UN arms inspectors, leading up to the Iraq invasion in 2003. According to El-Baradei, the invasion was no less than “aggression where there was no imminent threat,” and thus Bush administration officials should face international criminal investigation for the “shame of a needless war” in Iraq. This might well be the case for a possible war crime to be investigated by international courts.35 The action of private security contractors such as Blackwater in Iraq is another point of contention about war crimes committed by the US forces in Iraq. There are three incidents involving Blackwater that are particularly controversial: the Fallujah ambush, March 31, 2004; the Najaf shoot-out, April 4, 2004; and the Nisour Square shootings, September 16, 2007.36 Due to the allegations against Blackwater, primarily regarding Nisour Square, the Iraqi government banned Blackwater from Iraq in January 2009. However, Blackwater has since changed its name to Xe Services LLC and received a new contract with the US government in October 2010.37 The human costs of war are immense. According to a conservative estimate, Iraqi civilian death exceeds 115, 000 untill late 2011. According to the “Iraq Body Count” organization, “the documented civilian deaths from violence” between the US-led invasion in March 2003 and January 2009 were between 90,554 and 90,846.38 In December 2008, the United Nations High Commissioner for Refugees (UNHCR) “estimates more than 4.7 million Iraqis have left their homes, many in dire need of humanitarian care. Of these, more than 2.7 million Iraqis are 262

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displaced internally, while more than 2 million have fled to neighboring states, particularly Syria and Jordan.… In 2006, Iraqis became the leading nationality seeking asylum in Europe.”39 The sanctions regime and war weakened Iraqi civil society and national identity. Hence, after the invasion the Iraqis organized along ethno-sectarian lines and politicized their religio-ethnic identities. The war and post-war policies did more harm to national cohesion. The responsibility to rebuild in post-conflict Iraq was not remarkably successful either. The war in fact brought al-Qaeda to Iraq, intensified civil war and sectarianism, and did not put an end to torture and corruption in Iraq. Thousands of civilians were killed and hundreds of thousands were displaced. The welfare of Iraqi society was kept at bay. For example, Iraqis received only six hours of electricity per day for the first three years of post-invasion, and in some cities they currently receive only 15 hours in every 24.40 The Iraqi case, in sum, suggests that both the local dictator and the global hegemon committed crimes against humanity and war crimes. The local dictator and the victims (Iraqi people) were punished, but the global hegemon remains immune from prosecution. The main victims of the sanctions regime and the war were people whose life, prosperity, dignity, and agency evaporated through a new system of semi-trusteeship.

Israel/Palestine: Right to Punish? Israel-Palestine is another test case for the implementation of the R2P doctrine in the MENA. Clear evidence suggests that Israel has failed to live up to its legal obligations as an occupying power to protect civilians in the occupied territories. The Palestinian authority has not succeeded in protecting Palestinians and Israeli citizens from violence. The US has constantly vetoed all UNSC resolutions asking Israel to stop illegal settlements and/or condemning Israeli illegal military operations.41And the international community has failed to prevent, react, and rebuild properly in this case. It is true that the R2P doctrine is an emerging norm developed in 2001; however, the following examples suggest that the international community has missed a few occasions to act properly, and to protect and put people first in the Israel/Palestine context. The Richard Goldstone Fact Finding Mission on the Gaza Conflict (Operation Cast Lead) December 2008 to January 2009 concludes that Israel and Hamas committed serious violations of international human rights and humanitarian law amounting to war crimes and possibly crimes against humanity.42 Disproportionate and indiscriminate use of force such as sniper and tank fire in the civilian neighborhood aimed at provoking massive public outrage against Hamas. Israel’s goal was to implement the doctrine of deterrence against Hamas in 2008. Amnesty International confirmed the deaths of 1,400 Palestinian civilians, including women and children, in such a highly asymmetrical war.43 The Gaza Strip is still not free. After Israel’s disengagement policy in 2005, the Israeli troops were withdrawn from the Gaza Strip but never fully ended the occupation. Even if we accept the end of occupation, the blockade is illegal because the Gaza Strip is not a sovereign state and it has no sovereignty over its aerial and sea borders. The Gaza blockade is probably a strong case for crime against humanity under Article 33 of the Fourth Geneva Convention. UN Human Rights Chief, Navi Pillay, argues that Israel’s blockade on the Gaza Strip is illegal and accused Israel of violating international humanitarian law. Likewise, the head of the UNRWA operation in Gaza, John Ging, had called on the UN itself to deliver humanitarian assistance because the blockade is a direct violation of Article 33 of the Fourth Geneva Convention, which prohibits “collective punishment.”44 Although the blockade might not fall into a legal definition or category of a mass atrocity as defined by the R2P doctrine, the Gaza blockade is clearly a mass punishment, which exacerbates violence, anger, 263

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and further crimes. Hence, the international community is obliged to act and fulfill its responsibility to prevent crimes. Legal arguments aside, the people of the Gaza Strip and occupied Palestine deserve the implementation of responsibility to