The Responsibility to Protect in Africa

Address to mark Africa Day 2019, Australian National University, Canberra, 24 May 2019

Africa – individual Africans, African countries and African regional organizations – have been central from the outset in the conceptualization, development and implementation of the concept of the responsibility to protect populations against mass atrocity crimes: genocide, ethnic cleansing, other crimes against humanity and major war crimes. In this talk I want to describe the nature of that involvement, take stock of how successful – or not - the enterprise of ending mass atrocity crimes once and for all has been so far, and open for discussion the question of whether it has a future, or is an idea whose time has come and already gone.

For those of you not as familiar as you might wish with the concept, the Responsibility to Protect, or ‘R2P’ as now universally abbreviated, is the set of principles endorsed unanimously by the UN General Assembly in 2005 setting out how the world should react to the horror of mass atrocity crimes – defined as genocide, ethnic cleansing, other crimes against humanity and major war crimes. In embracing those principles at that year’s World Summit, commemorating the UN’s 60th anniversary, heads of state and government across the globe accepted that such mass atrocity crimes, about which there had until then been absolutely no international consensus as to how to react to them, were not nobody’s business but the whole world’s business – a matter of international peace and security concern – even when committed wholly within the boundaries of a single sovereign state.

The R2P language agreed by the UN is now universally understood to embrace three distinct elements, or ‘pillars’: the responsibility of a state to its own people not to either commit such mass atrocity crimes or allow them to occur (‘Pillar One’); the responsibility of other states to assist those lacking the capacity to so protect (‘Pillar Two’); and the responsibility of the international community to respond with ‘timely and decisive action’ – including ultimately with coercive military force if that is authorised by the Security Council – if a state is ‘manifestly failing’ to meet its protection responsibilities (‘Pillar Three’).

All three of these pillars are still accepted in principle by the overwhelming majority of the international community, as is abundantly clear when one reads the annual debates on R2P in the General Assembly and the continuing multiple references to states’ responsibility to protect in Security Council resolutions. But implementing those pillars in practice – above all taking the timely and decisive action that Pillar Three involves – has been much more difficult to systematically achieve, and the fully effective implementation of R2P in all its dimensions remains very much work in progress.

The African Dimension. I said at the outset that Africa, and individual Africans, African countries and regional organizations, have been absolutely central to the R2P debate from the beginning. Let me count the ways.

First, it was the Rwandan genocide in 1994 – 25 years ago – that more than anything else, even the Balkans catastrophes, concentrated international attention on the need to break out of the consensus-free zone that argument about ‘humanitarian intervention’ had become (with the global North liking the idea of military intervention in extreme cases but the global South totally reluctant to accept the idea that there was any such ‘right to intervene’).

Second, it was the African Secretary-General of the UN, the late great Kofi Annan, who laid down the challenge posed by that lack of consensus in unequivocal terms, saying to the Millennium Assembly in 2000, ‘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?

Third, Africans played a central role in the International Commission on Intervention and State Sovereignty (ICISS), initiated by Canada and which I had the privilege of co-chairing, which in our 2001 report broke the conceptual deadlock by changing the language of the debate from ‘the right to intervene’ to ‘the responsibility to protect’. My co-chair was the hugely respected Algerian diplomat Mohamed Sahnoun; one of the most committed Commission members was Cyril Ramaphosa, later to become South Africa’s President; and of the many roundtables and consultations we conducted around the world in formulating our report, probably the most important and influential was that we held in Maputo in March 2001.

Fourth, the conclusions which the Commission reached were dramatically reinforced the next year by the passage in 2002 (although it had been several years in the making) of the Constitutive Act of the African Union, which – unlike the principles governing its predecessor, the Organization of African Unity – placed the emphasis, when it came to catastrophic internal human rights violations, not on ‘non-interference’ but on ‘non-indifference’. Although article 4(g) of the AU Act guarantees in familiar terms “non-interference by any Member State in the internal affairs of another”, article 4 (h) lays out the ground-breaking notion of “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”.

Fifth, when it came to getting R2P principles out of the pages of a commission report and on its way to acceptance as a new, UN-endorsed, norm, the role played by sub-Sahara Africa was absolutely crucial. The unanimous endorsement of R2P principle at the 2005 World Summit, and in the UN General Assembly resolution which immediately followed it, was anything but inevitable. Not only was little else of any significance agreed upon by the summit participants – despite all the preparatory build-up, Kofi Annan’s leadership and high expectations – but a fierce rear-guard action against R2P was fought almost to the last by a small group of developing countries, joined by Russia, who basically refused to concede any kind of limitation on the full and untrammelled exercise of state sovereignty, however irresponsible that exercise might be. And consistent support for R2P from both the US and UK – reasonably strong from Washington, much more so from London – was not particularly helpful in allaying the familiar sovereignty concerns of the South, against the background of the deeply unpopular coalition invasion of Iraq in 2003.

What carried the day in the end was persistent advocacy by sub-Saharan African countries, led by South Africa. The Latin Americans’ acceptance of limited sovereignty principles was important, given their own long history of resisting foreign intervention. Canada’s then Prime Minister Paul Martin should also be given credit for some effective last minute personal diplomacy directed toward key wavering countries, notably India. But it was strong and effective African advocacy, led by South Africa, which really proved critical.

Sixth, in the years since 2005, when it has come to moving from rhetoric to action and actually implementing R2P principles in practice, African countries have provided most of the success stories: with the UN/African Union diplomatic press that ended the strife in Kenya in early 2008, and the military interventions in Côte d’Ivoire, and – at least initially (in stopping what would have been a massacre in Benghazi) – Libya in 2011. Some partial success can be claimed for the new or revitalized UN peacekeeping operations in Congo, South Sudan, and the Central African Republic, where mobilization of the international community, although late, was better late than never.

R2P-driven engagement can also be credited with stopping the recurrence of strife in Kenya after 2008, and in the West African cases of Sierra Leone, Liberia, Guinea, and Cote d’Ivoire over the last decade where ECOWAS has repeatedly played a constructive role. I also think it is fair to say that as a result of the explicitly acknowledged normative force of R2P, volatile situations such as Burundi now get the kind of continuing Security Council attention unknown to Rwanda in the 1990s: whenever Burundi has moved close to the volcano’s edge, the Council has met and the AU has usually become more closely engaged, and the crisis has subsided.

What happened in Gambia in 2017-18 is another positive example of R2P effectively at work. When the long-entrenched President Jammeh refused to accept the democratic results of the 2017 election, ECOWAS threatened to intervene if he didn't step aside. Jammeh tried to use ethnic incitement and anti-LGBT hate speech to try to mobilize people around him, ut ECOWAS did eventually intervene in January 2018 and forced him out with hardly a shot fired. Since then Gambia has rescinded its decision to leave ICC, has established a human rights commission and has become a bit of champion for human rights in the region.

Seventh, it has to be acknowledged that African countries have generated not only most of R2P’s successes, but some of its clearest failures since 2005, albeit none on the terrible scale of Sri Lanka in 2009 or, worst of all, Syria since 2011. In Sudan, the original crisis in Darfur predates R2P but the situation there is still unresolved and President Omar al-Bashir remained for years effectively untouched either by his International Criminal Court indictment or multiple Security Council resolutions: it remains to be seen whether his recent overthrow and prosecution by the country’s military will make up for that default. We have seen the repeated breakdown of peace agreements in South Sudan, where at least 50,000 – and on some estimates as many as 500,000 – have died since 2013. Despite partially successful efforts by UN peacekeeping forces to moderate these conflicts, in the Democratic Republic of the Congo recurring atrocity crimes continue to be committed by the security forces and various militias, it is also clear that there has been little success in stopping non-state actors like Boko Haram committing atrocity crimes in territory over which they have control.

Moreover, it remains the case that African countries have, unhappily, continued to generate more situations of R2P concern than any other parts of the globe. The current May 2019 issue of the R2P Monitor, published by the Global Centre for the Responsibility to Protect in New York, lists as either in current crisis, at imminent risk or of serious concern ten African countries (Eritrea; Cameroon, Nigeria; Burundi, CAR, DRC, Libya, Mali, South Sudan) as compared with eight in the rest of the world together (for the record: Afghanistan, DPRK, Myanmar, Syria, Yemen; China, Israel/Palestine, Venezuela).

Taking Stock of R2P Globally. While Africa has constituted most of the R2P story so far, it has not been the whole story. If we stand back and take a global stocktake of what R2P has and has not achieved since 2005, there is zero room for complacency about the future– particularly in the post-truth, post-rationality, post-decency, Trumpian world we now seem to largely inhabit. But there are positive things we can say against each of what I think are the four relevant benchmarks: R2P as a normative force; a catalyst for institutional change; a framework for preventive action; and a framework for effective reactive action when prevention has failed.

Normatively, R2P has achieved a global take-up unimaginable for the earlier concept of ‘humanitarian intervention’which R2P has now rightly, and almost completely, displaced. Although many states are still clearly more comfortable with the first two pillars of R2P than they are with the third, and there will always be argument about what precise form action should take in a particular case, there is no longer any serious dissent evident in relation to any of the elements of the 2005 Resolution. The best evidence lies in the General Assembly’s annual interactive debates since 2009, which have shown ever stronger and more clearly articulated support for the new norm, and in the more than 80 resolutions referencing R2P that have now been passed by the Security Council (75 of them after the divisions over Libya in 2011).

I don’t suggest for a moment that R2P has become so embedded in international practice that it now counts as a new rule of customary international law – particularly with Russia playing the spoiling role it now is on the Security Council, and China as well, although less so and less obviously cynically. But when considered as a guide to behaviour, I believe that R2P is more than just an ‘emerging’ norm: it is a new norm.

Institutionally, an ever-growing number, now over 60, states and intergovernmental organizations have now established R2P ‘focal points’ – designated high-level officials whose job is to analyse atrocity risk and mobilize appropriate responses: Ghana, incidentally, has been from the outset one of the key drivers of this process, Civilian response capability is receiving much more organized attention, as is the need for militaries to rethink their force configuration, doctrine, rules of engagement, and training to deal better with mass atrocity response operations.

Probably the most crucial institutional need for the future is to create a culture of effective support for the International Criminal Court (ICC) and the evolving machinery of international criminal justice, which machinery is designed to enable not only trial and punishment for some of the worst mass atrocity crimes of the past, but in doing so to provide an important new deterrent for the future. It is deeply regrettable that the ICC has come under so much recent fire from African states in particular, although threatened mass withdrawals have not eventuated – Burundi is the only African departure so far, with the only other being that of Duterte’s Philippines.

And it is not only regrettable, but intolerable to the point of disgusting, for the ICC to have come under the attack it recently has from the Trump administration in the United States. President Trump’s speech to the UN General Assembly last year was uncompromisingly hostile: ‘As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority…We reject the ideology of globalism, and we embrace the doctrine of patriotism.’ And there was an even harsher and uglier exceptionalist speech from National Security Adviser John Bolton last September, stating a determination – which has now begun to be implemented in practice – to hunt down the Court and eviscerate it: ‘We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the US financial system, and we will prosecute them in the US criminal system. We will do the same for any company or state that assists in an ICC investigation of Americans.’ (As Stephen Rapp, the former ambassador at large for war crimes under Obama, neatly skewered Bolton in reply: ‘We can prevent the prosecution of Americans not by threatening judges, but by showing that we thoroughly investigated and found no cases where the evidence met the burden of proof”).

Implementation of the ICC’s mandate may not always have been perfect (and it is certainly arguable, as much of Africa believes, that its prosecution of Kenyan leaders was mishandled) but it is trying hard to fill what has far too long been a major institutional vacuum, there is no evidence at all of any systematic bias against African countries, its processes should be respected, and countries like Australia which can possibly claim to have at least some capacity to get the US to listen, should use every possible diplomatic tool at our disposal to ensure its continued existence.

Preventively, R2P-driven strategies have had a number of notable successes, notably in the many African cases I have already mentioned. Kyrgyzstan after 2010 is another good example. Strong civilian protection mandates are now the norm in peacekeeping operations. And the whole preventive toolbox, in both its long and short term – structural and operational – dimensions is much better understood, embracing as it does analysis and early warning, political and diplomatic strategies, economic and social strategies, legal and constitutional strategies, and security sector reform strategies.

But, although prevention very much remains the UN flavour of the month, with many more countries finding prevention-before-the-event language more comfortable than anything savouring of Pillar Three response-after-the-event, action still lags behind the rhetoric. Part of the problem of getting sufficient resources to engage in successful prevention is the age-old one that success here means that nothing visible actually happens: no-one gets the kind of credit that is usually on offer for effective fire-fighting after the event.

Reactively? When it comes to how effective has R2P been as a reactive mechanism, when prevention has failed, the not-so-good news is that on the critical challenge of stopping mass atrocity crimes that are under way, whether that is done through diplomatic persuasion, stronger measures like sanctions or criminal prosecutions, or through military intervention, R2P’s record has been mixed, at best. In addition to the successes and failures in Africa I have already mentioned, there has been elsewhere the failure to inhibit Israel from using manifestly disproportionate force to maintain its occupancy of the West Bank and isolation of Gaza; the distressing lack of response to the Rohingya crisis; and, as I have already mentioned, the failure to curb the Sri Lankan military’s massive overreach in 2009, and above all the catastrophic international paralysis over Syria since 2011.

The most troubling, and costly, case of the failure of R2P to mount an effective response has undoubtedly been Syria. The crucial lapse was in mid-2011 when the violence was still largely one-sided, perpetrated by the Assad regime against essentially unarmed domestic political dissidents, but the Security Council failed even to condemn the regime – let alone apply sanctions, an arms embargo, or the threat of ICC prosecution – all of which it had done quickly as the first stage of its reaction to Libya (UN Security Council Resolution 1970), with the result that Assad undoubtedly felt off the leash as the situation deteriorated quickly into full scale civil war.

Although the policy issues now are much more complex and difficult than they were in 2011 – with multi-faceted civil war further complicated by the emergence of the Islamic State and the engagement of multiple external actors – the blame for that crucial early inaction, and much of the paralysis which has continued since, cannot be wholly attributed to Russia, and sometimes Chinese, intransigence, as frustrating as that has been. The basic problem was the reaction of majority of the Security Council, whether one thinks it rational or not, to what went wrong in Libya in 2011, when the P3 – the US, UK and France – were perceived as having exceeded the coercive military mandate given by UNSCR 1973.

The problem with the Libyan case was not the original decision by the Security Council in March 2011 to authorize coercive military force, made in the context of almost universally held fears of an imminent massacre by Gaddafi forces marching on Benghazi: there was no opposition to that resolution, it was immediately successfully implemented, and it was widely hailed at the time – including by me – as the coming of age of R2P, demonstrating that with quick and robust collective action, the horrors of Rwanda and Srebrenica could indeed be made a thing of the past. It is impossible to know how many thousands of lives were saved in Benghazi by that initial intervention in Libya, but certainly possible to argue that had the UN Security Council acted anything like as swiftly and robustly in the 1990s, 8000 men and boys in Srebrenica, and close to 800,000 men, women and children in Rwanda, would still be alive today.

The problem was rather what happened next – the de facto transformation by the P3, without being willing to explore alternative approaches, and without allowing any serious further debate, of the Council’s limited civilian protection mandate into an open-ended regime change one. This was deeply resented by the BRICS states in particular (Brazil, Russia, India, China and South Africa), all of whom happened to be on the Council at the time. Not least did it upset South Africa, which wanted to explore with Gaddafi the possibility of a ceasefire and peaceful political transition, and should have been given the opportunity to do so, whatever one may have thought then, or may think now, about its likely prospects of success.

I do believe, having talked to nearly all the participants in this debate that the breakdown of consensus over the Libyan mandate unquestionably was the major factor in the failure of the Council to agree on any response at all – even just a condemnatory resolution – when the Syrian situation started to explode in mid-2011. The BRICS took the view, whether one regards this as too obdurate or not, that they were not going to concede an inch if there was any chance that the P3 would take that inch to run a mile.

Does R2P Have a Future? Looking forward, solution simply has to be found to the current post-Libya stand-off if R2P is to have a future in all the ways that it needs to – if we are not, in the face of extreme mass atrocity situations, to go back to the bad old days of indefensible inaction as with Cambodia, or Rwanda, or Bosnia, or of otherwise defensible action taken in defiance of the UN Charter, as in Kosovo. The good news, I have believe, is that a solution is in sight should agreement be able to be reached on some variant of the ‘Responsibility While Protecting’ (RWP) proposal originally put on the table by Brazil (in its pre-Bolsonaro days) in which Russia, China and India, among others, have all from time to time shown considerable interest.

It has two key elements: first, close attention by the Security Council to agreed prudential criteria like last resort and proportionality before granting any military mandate in atrocity crime cases; and second, close monitoring and regular review by the Council of the implementation of any such mandate during its lifetime. The P3 are dragging their feet on this – always reluctant, particularly in the case of the US under any administration, to acknowledge any constraint on complete ad hocery on peace and security issues – but I think are gradually coming to the realization that unless some concessions are made on these fronts it will be impossible not only to avoid a veto on these mandates but even to command a basic majority on the Council. None of this is likely to help much in Syria, but it does offer some hope for the longer term.

Overall, while there are certainly plenty of challenges ahead for R2P, there are also many grounds for optimism about its future of R2P over the next decade and beyond. It is important to emphasise again that the disagreement now evident in the UN Security Council is really only about how the R2P norm is to be applied in the hardest, sharp-end cases, those where prevention has manifestly failed, and the harm to civilians being experienced or feared is so great that the issue of military force has to be given at least some prima facie consideration. There is much more to the R2P project than just these extreme late-stage situations, and much to indicate that its other preventive, reactive and rebuilding dimensions all have both wide and deep international support.

What is crucial is that support continue to be strongly articulated by states whose opinions really do matter, and South Africa and a number of other key African countries are crucial here. Most of the continent’s leaders have continued to be generally supportive of R2P principles, but that support has not always been as strong or consistent as it could and should have been, and some rather mixed messages have been given, particularly on the International Criminal Court issue.

I just hope that, here as elsewhere, Nelson Mandela’s words about international responsibility should continue to resonate: ‘to be free is not merely to cast off one’s chains, but to live in a way which respects and enhances the freedom of others’.