The Genesis of R2P: Kofi Annan’s Intervention Dilemma
Abstract and Keywords
This chapter addresses the evolution of the responsibility to protect concept from September 1999 to its adoption in the World Summit Outcome Document of September 2005. It covers Kofi Annan’s ‘dilemma of intervention’, some early human security initiatives by Canada including the International Commission on Intervention and State Sovereignty (ICISS) and its report The Responsibility to Protect which first articulated the moniker as well as the concept, the High-Level Panel on Threats, Challenges and Change and the Secretary-General’s report In Larger Freedom, the negotiations and Outcome Document of the World Summit, and the early incorporation of protection of civilians within Security Council resolutions. Throughout this narrative, the importance of sustained advocacy by key individuals—including Kofi Annan, Lloyd Axworthy, and Gareth Evans among others—is presented as vital to the evolution (in theory and in practice) of the responsibility to protect.
Normative development occurs at the United Nations in a variety of ways, including, for example, the negotiation of treaties encompassing new principles, practices, or procedures; resolutions of the General Assembly; and through the cumulative impact of resolutions of the Security Council as it experiments with new approaches. The emergence of the responsibility to protect (R2P) concept did not follow any of these paths, until it was accepted by the Outcome Document of the UN World Summit of 2005, an expression of the General Assembly at the level of heads of government. Its development resulted from a particular set of circumstances arising during the Kosovo conflict of 1999; subsequent debates, private consultations, the work of an independent international commission; and then, after another set of particular political circumstances involving Iraq in 2003, the conclusions of a High-Level Panel appointed by the Secretary-General. At no point was its adoption in 2005 inevitable or even probable.
This chapter provides a history of the evolution the R2P concept from the autumn of 1999 to its adoption in the World Summit Outcome Document of September 2005. The text proceeds in six sections. The first section outlines the circumstances that called out for ‘new thinking’ on the protection of civilians, particularly the genocide in Rwanda in 1994 and the massacre at Srebrenica in 1995. The second section reviews debates within UN circles on humanitarian intervention and related topics. The third part concerns the formation by the government of Canada of the International Commission on Intervention and State Sovereignty (ICISS), whose report of December 2011, The Responsibility to Protect, at first seemed likely to be overshadowed by the aftermath of the 9/11 terrorist attacks on New York and Washington only months earlier. The subsequent section documents: the High-Level Panel on Threats Challenges and Change appointed in 2003 by UN Secretary-General Kofi Annan and its report A More Secure World: Our Shared Responsibility of December 2004; and the Secretary-General’s own report setting the stage for the 2005 Summit, In Larger Freedom: Towards Development, Security and Human Rights For All. The last two sections cover some of the dynamics (p. 115) of negotiations and the content of the Outcome Document agreed upon at the Summit later that year. We then conclude by identifying critical factors which made the inclusion of R2P within the World Summit Outcome Document possible and speculate on how R2P may evolve in the future at the level of international practice.
Rwanda, Srebrenica, and the UN
The roots of the debate that led to the emergence of the R2P concept go back to several major UN set-backs costing many civilian lives in the early 1990s.1 The UN’s involvement in the former Yugoslavia, initially one designed to reverse the tide of refugees fleeing to neighbouring countries, grew incrementally to include the promise of protection to civilians compressed into several ‘safe areas’ in the midst of Bosnian war zones. Of these, Srebrenica was to become the most infamous. The UN forces protecting these zones were entirely inadequate to the task in numbers and in equipment, particularly relative to what the Secretary-General had recommended for the task to the Security Council. Council members would neither provide nor fund resources sufficient for this risky mission. Further, UN staff wrestled with a major split amongst the proponents of an active UN role in Bosnia. The West European countries were convinced that a variation of classic UN peacekeeping could keep a lid on the turmoil. The United States, which was proved right ultimately, believed that only more forceful steps (North Atlantic Treaty Organization (NATO) bombing, the arming of Croatia’s forces) could reverse the tide. Policy confusion reigned while death claimed many non-combatants. And the slaughter by Serb forces of thousands of men and boys marched out of the Srebrenica safe area ultimately undefended by either the UN or NATO was largely the result of unsatisfactory compromises, mixed signals, the absence of effective overall strategy, and smaller tactical mistakes by international actors at all levels, compounded by local manoeuvres for advantage and the intent of the Serb aggressors.
The failure of the UN to respond to the genocide in Rwanda in April 1994 was less the result of confusion than of fall-out from the collapse of a UN peacekeeping effort in Somalia after the death in 1993 of a number of US paratroopers operating in parallel to the UN when their helicopter was downed by local forces, an episode dramatized in the 2001 film Black Hawk Down. Humanitarian and other well-intentioned engagements in Africa were no longer seen as a priority by the United States and more widely within the Security Council. As a result, a number of clear warnings of impending ethnic strife in Rwanda were ignored both in the UN Secretariat and by key UN Member States. The small UN peacekeeping operation in the country, after absorbing gruesome casualties at the hands of the génocidaires, was withdrawn rather than reinforced by the Security Council, with shocking results (although a small rump force of UN troops did manage to save many lives in the Kigali stadium and elsewhere amidst the generalized slaughter of Tutsis). None of the Permanent Five (P5) members of the Council emerged with honour. Nevertheless, the Council’s President in April 2004, Colin Keating of New Zealand, (p. 116) drawing in part on information provided by non-governmental organizations (NGOs) as well as the Nigerian delegation led by Ibrahim Gambari, did a great deal to highlight the reality on the ground, eventually shaming the Council into belated motion.2
Reaction at the international level to these disasters occasioning extreme costs in human lives ranged from relative indifference to rationalizations and, in due course, largely unconvincing national inquiries, with a frank apology coming only from US President Clinton, well after the fact. Meanwhile, those at the UN most involved, including UN Under-Secretary-General for Peacekeeping Operations Kofi Annan and several of his closest associates, were deeply scarred by the experience. For some, these experiences increased their resolve to tackle future challenges more decisively. As Annan concludes in his biography:
From the Department of Peacekeeping Operations to the office of the Secretary-General, I took with me, above all, the lessons of Bosnia and Rwanda. Evil in civil war zones occurs due to the will of the conflict protagonists, which must be rounded upon, confronted and stopped—and through force if necessary.3
When they perceived the emergence in Kosovo in 1998 of a ‘Bosnia in slow motion’ all over again, Annan, by now UN Secretary-General, spoke out in favour of concerted international action to avert a repeat of avoidable civilian casualties. The theme came up in several of his prominent speeches at the time: NATO in June 1998 and January 1999, the UN Human Rights Commission in April 1999, and the Centennial of the First International Peace Conference in The Hague in May 1999.4
Views within the UN Secretariat and among Member States were divided, sometimes quite sharply. Deep suspicion of Western motives was pervasive among a number of formerly colonized countries and highly respected figures from the developing world. Attachment to the absolute sovereignty of states was evident not just among nostalgists of the Cold War and many decolonized countries but also among a range of UN officials—taking a prudent UN law view—who proffered what they saw as their best advice to Annan to hold back. These included several individuals he much admired, some of whom thought he was excessively channelling Western views and agendas.
Nevertheless, he and several of his closest advisers, each marked deeply by the events in Rwanda and Bosnia, were unconvinced. Nader Mousavizadeh, then an adviser and speech-writer in the Secretary-General’s office and later the co-author of Annan’s memoirs, recalling the several ‘lessons learned’ exercises the UN had engaged in following the Bosnia and Rwanda fiascos, saw Annan at the time as deeply convinced of the need to give expression to these lessons through new policy approaches, irrespective of the offence this might cause to states and colleagues cleaving to a more traditional view of the limits to intervention.5 The notion of ‘norm entrepreneurship’ was not actively on their minds at this stage, as they had no specific new norm in mind.6 There was not yet any sense of wanting to craft an all-encompassing new intellectual framework to deal with intervention. Rather, he was searching, often through his speeches, but also by other means documented further on, for resolution of apparently irreconcilable (p. 117) principles stemming from law, notably conceptions of sovereignty and the humanitarian imperative, frequently pressed by events.
In sum, Annan seemed to be moving forward, not always in a straight line, towards a new conceptual framework that would create greater flexibility at the international level to avert looming humanitarian disasters.7 Independent reports on the fall of Srebrenica and on the Rwanda genocide commissioned by Annan early in his first term, particularly frank and searing in the case of Srebrenica, were to confirm, when published in November and December 1999 respectively, that there was a great deal the UN and Member States could have done to avert both catastrophes.8 Annan was named among those sharing responsibility for the UN’s failures, something he had long internalized but that can only have reinforced his determination to struggle towards a new set of principles that could avoid the worst in the future.
Prelude to R2P
Regarding the protection of civilians in armed conflict, many of the early advances at the UN can be traced to Canada’s advocacy for human security, particularly as an elected member of the Security Council in 1999 and 2000. Canada’s leadership role on the protection of civilians was consistent with its foreign policy under Foreign Minister Lloyd Axworthy from 1996 to 2000, most notably including the Anti-Personnel Mine Ban Convention (Ottawa Treaty) of 1997, and advocacy of the International Criminal Court. On 12 February 1999, at the initiative of Canada (then the Security Council president) a Council meeting on the protection of civilians in armed conflict resulted in a presidential statement requesting a report from the Secretary-General.9 The report, published on 8 September 1999, provided 40 recommendations to the Security Council to improve the physical and legal protection of civilians in armed conflict.10 On 17 September 1999, the Security Council adopted resolution 1265, its first resolution specifically focused on the protection of civilians, incorporating numerous of the Secretary-General’s recommendations. Among other points, the Council expressed ‘its willingness to respond to situations of armed conflict where civilians are being targeted or humanitarian assistance to civilians is being deliberately obstructed’.11 Also at the initiative of Canada, the Council adopted resolution 1270, which included the first protection of civilians mandate for a UN peacekeeping operation (United Nations Mission in Sierra Leone).12
Meanwhile, Secretary-General Kofi Annan published an essay in The Economist in which he juxtaposed state sovereignty with individual sovereignty.13 Annan argued that state sovereignty was being redefined by globalization and international cooperation, and that states should serve their people and not the inverse; meanwhile, individual sovereignty, as manifested in international human rights law, was also progressing through growing awareness within global civil society. The tensions between these ‘two concepts of sovereignty’ often gave rise to difficult choices, such as those presented at the time in East Timor and Kosovo, relating to armed international intervention. In the former (p. 118) case, the Security Council delayed authorizing intervention while waiting for consent from Indonesia; in the latter case, under threat of a veto by Russia, the NATO intervened without Security Council authorization. Failing to intervene or delaying intervention due to state sovereignty risked lives, while intervention without a Security Council mandate risked undermining the UN system and mainstream interpretations at the time of international law; in both situations, public perceptions of UN legitimacy were arguably also at stake.
Annan reiterated these points in his speech to the opening of the General Assembly on 20 September 1999, concluding that the international community should welcome the ‘developing norm in favour of intervention to protect civilians from wholesale slaughter’.14 He further implied that intervention would have been justified to prevent genocide in Rwanda, even in the absence of a Security Council mandate:
To those for whom the greatest threat to the future of international order is the use of force in the absence of a Security Council mandate, one might ask, not in the context of Kosovo but in the context of Rwanda, if, in those dark days and hours leading up to the genocide, a coalition of States had been prepared to act in defence of the Tutsi population, should such a coalition have stood aside and allowed the horror to unfold?15
The initial reaction to Annan’s speech was overwhelmingly negative among the Group of 77 (G77) developing countries leading him to suspend his public advocacy efforts on this topic for a time.16 Perhaps because of his earlier personal association with the tragedies in Rwanda and at Srebrenica, and in spite of (or perhaps because of) the sharp reaction to his General Assembly speech, in private Annan displayed dogged determination to square the circle on the Security Council’s role in authorizing intervention and the conviction that the UN’s first priority should be to protect civilians.
Accepting that debate on these issues within UN circles had reached an impasse he requested the International Peace Academy (now the International Peace Institute), where both authors then worked, to gather a small number of individuals who might help him to think through the factors at play, and particularly to examine whether clear criteria to trigger intervention could be devised. IPA, with funding from Canada, convened several scholars, jurists, and other experts for a consultation, 8 and 9 March 2000, in New York.17 In retrospect, the confidential report of this meeting, ‘International Intervention: Advancing Debate and Action in a UN Framework’, pointed in promising directions including on: evolution of conceptions of state sovereignty; the wide range of options and thus flexibility of the UN Charter; the Security Council’s central role in redefining parameters for future practice; and an emphasis on the human rights obligations of states to their citizenry. But it could not claim agreement on criteria for intervention (in itself an important clue to roadblocks that needed to be overcome in order to achieve subsequent breakthroughs). Noting that the term ‘humanitarian intervention’ generated allergic reaction among many UN Member States, the report suggested ‘the way forward involves changing the terms of the debate and carrying it to the public, thereby changing the environment in which decisions are made’.18
(p. 119) The following month, in his report We the Peoples, published in April 2000 for the upcoming Millennium Summit, Annan returned to the ‘dilemma of intervention’. Acknowledging the controversy aroused by his speech at the opening of the General Assembly the previous year, Annan yielded little ground to critics on the issue:
Humanitarian intervention is a sensitive issue, fraught with political difficulty and not susceptible to easy answers. But surely no legal principle—not even sovereignty—can ever shield crimes against humanity. Where such crimes occur and peaceful attempts to halt them have been exhausted, the Security Council has a moral duty to act on behalf of the international community.19
Taking up the challenge to reconcile state sovereignty with protection of the rights of the individual, at the Millennium Summit on 7 September 2000 Prime Minister Jean Chretien of Canada announced the creation of the ICISS.20 Addressing the General Assembly a week later, Foreign Minister Lloyd Axworthy cited the Brundtland Commission report’s synthesis of ‘sustainable development’ from economic development and environmental protection as a positive precedent. He stated that Canada’s goal for ICISS would be to ‘diffuse the anxiety that surrounds the issues of intervention and sovereignty by building a similar bridge between our current notions of these concepts’.21
Although ICISS was an initiative of Canada, the membership of the Commission and its staff were distinctly international. ICISS was co-chaired by Gareth Evans, President of the International Crisis Group and a former foreign minister of Australia, and Mohamed Sahnoun, a Special Adviser to the Secretary-General and former senior Algerian diplomat. The other ten members of ICISS were: Gisèle Côté-Harper (Canada), Lee Hamilton (United States), Michael Ignatieff (Canada), Vladimir Lukin (Russia), Klaus Naumann (Germany), Cyril Ramaphosa (South Africa), Fidel V. Ramos (Philippines), Cornelio Sommaruga (Switzerland), Eduardo Stein Barillas (Guatemala), and Ramesh Thakur (India). Axworthy chaired the Advisory Board, and Canada was the principal funder of ICISS (in addition to several foundations and the governments of Switzerland and the United Kingdom). The work of the Commission was supported by a research team including Thomas Weiss (United States) and Stanlake Samkange (Zimbabwe) and a Secretariat within the Department of Foreign Affairs and International Trade in Ottawa. Five full meetings of the Commission were held, and a broad consultative process unfolded internationally.
In December 2001, the International Development Research Centre published the ICISS report, Responsibility to Protect. The ICISS report was also launched for a UN audience by the International Peace Academy in New York in February 2002.22 Responsibility to Protect includes a synopsis usefully outlining the core principles of (p. 120) the responsibility to protect in four parts: basic principles, foundations, elements, and priorities.23 These asserted that sovereignty implies that the state has primary responsibility for the protection of civilians, but that the principle of non-intervention yields to the international responsibility to protect if the state is unwilling or unable to stop serious harm to its population. The foundations of R2P were drawn from the following: inherent obligations of sovereignty; the responsibility of the Security Council under Article 24 of the UN Charter for the maintenance of international peace and security; specific obligations in international human rights law, international humanitarian law, and national law; and the practice of states, regional organizations, and the Security Council. Three stages were foreseen as relevant to R2P: the responsibility to prevent conflict, the responsibility to react with appropriate measures, and the responsibility to rebuild societies after intervention. In terms of priorities, prevention was determined to be the most important dimension of R2P. And the report asserted that less intrusive and coercive measures should always be fully considered before more intrusive and coercive measures are contemplated and implemented.
The Responsibility to Protect also tackled the most controversial aspect of contemporary debate by establishing criteria for military intervention, consisting of a just cause threshold, precautionary principles, decision-making authority, and operational principles.24 In terms of a threshold, either a ‘large scale loss of life’ or ‘large scale ethnic cleansing’ must be occurring or be ‘imminently likely to occur’. (The just cause threshold does not differentiate between the causes of the large-scale violence. Establishing intent by the perpetrators is not required.) Four precautionary principles were outlined: the intention must be to halt or avert human suffering; military intervention could only be pursued as a last resort; the means of intervention should be proportional to the situation; and there must be ‘reasonable prospects’ for action resulting in a better outcome than not taking action. ICISS affirmed the centrality of the Security Council, suggesting that only when the Security Council fails to act could the matter be considered by the General Assembly under the ‘Uniting for Peace’ formula or by regional organizations under Chapter VIII of the UN Charter. ICISS also proposed that the P5 members of the Council should agree not to use the veto (except when ‘vital state interests’ are at play) to block authorization of military intervention for human protection in situations where there would otherwise be sufficient majority support.25
The most significant contribution of the ICISS report was to reframe the existing debate on ‘humanitarian intervention’, particularly with reference to the concepts ‘intervention’ and ‘sovereignty’. In the words of ICISS co-chair 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”—in this case, to protect people at grave risk.26
The ICISS commissioners sought to broaden public discourse considerably beyond a singular focus on the use of military force to include other aspects of civilian protection, (p. 121) particularly conflict prevention and post-conflict peacebuilding. ICISS owed an intellectual debt to the earlier work on internally displaced persons (IDPs) of Francis Deng and others, who had previously formulated the concept ‘sovereignty as responsibility’ in the mid-1990s.27 ICISS met Axworthy’s challenge of largely bridging the gap between the concepts of ‘intervention’ and ‘sovereignty’, but it took several more years before R2P gained the endorsement of UN Member States.
R2P and the UN
While ultimately successful in promoting debate and prompting eventual normative development, the timing of the release of Responsibility to Protect was sub-optimal, coming as it did months after the dramatic events of 9/11. Furthermore, the ICISS commissioners were concerned that in the aftermath of 9/11 public discourse could conflate the distinct issues of military intervention for civilian protection in a third state and military intervention as self-defence in response to a terrorist attack. The fallout of the attacks on 9/11 did complicate and delay follow-up to the report, especially the process of building support among UN Member States for its recommendations. When the ICISS report was discussed at the annual retreat of the Security Council in May 2002, the P5 expressed concerns with the text. In particular, the United States objected to any criteria that would require it to engage militarily in situations where it lacked national interests or constrain its latitude to decide on when and where to use force.28 Less than a year later, in February and March 2003, two events transpired that would have an influence on subsequent developments: the onset of war in Darfur and the joint US–UK invasion of Iraq without Security Council authorization. The former situation urgently illustrated the difficult challenges of operationalizing R2P, while the latter reinforced existing concerns among Member States regarding a softening of international rules governing the use of force.
On 23 September 2003, largely in reaction to the intervention in Iraq, Annan announced to the General Assembly that he would form what became known as the High-Level Panel on Threats, Challenges and Change (HLP).29 The panel was chaired by Anand Panyarachun, former Prime Minister of Thailand, and its members were drawn from every continent and each of the P5. Among the 16 members of the HLP was former ICISS co-chair Gareth Evans and Robert Badinter, a former minister of justice of France who had previously participated in the IPA-organized consultation in March 2000. The Secretary-General released the HLP’s influential 130-page report, A More Secure World, in December 2004. With respect to R2P, paragraph 203 unequivocally states:
We endorse the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent.30
(p. 122) A More Secure World also established ‘five basic criteria of legitimacy’ for Security Council authorization of the use of force: seriousness of threat, proper purpose, last resort, proportional means, and balance of consequences.31 The criteria largely mirror and somewhat complement the just cause threshold and four precautionary principles delineated in the ICISS report.
In March 2005, Secretary-General Annan released a report intended to guide discussions on UN reform among Member States in the run-up to the World Summit in September. The report, In Larger Freedom, addressed R2P in a section titled ‘freedom to live in dignity’ (paragraphs 132 and 135) and in the Annex (paragraph 7b), providing recommendations to be considered for adoption by UN Member States. Annan delinked R2P from principles on Security Council authorization for the use of force (covered in a section on ‘freedom from fear’, paragraphs 122–6 and Annex 6h), which helped the prospects for inclusion of R2P language in the World Summit Outcome Document. Echoing the language of the ICISS report and the HLP, Annan urged heads of state and government to:
Embrace the “responsibility to protect” as a basis for collective action against genocide, ethnic cleansing and crimes against humanity, and agree to act on this responsibility, recognizing that this responsibility lies first and foremost with each individual state, whose duty it is to protect their citizens, then the responsibility shifts to the international community to use diplomatic, humanitarian and other methods to help protect civilian populations, and that if such methods appear insufficient the Security Council may out of necessity decide to take action under the Charter, including enforcement action, if so required.32
As with previous iterations of R2P, Annan’s recommendation includes a few core elements: specifying the situations that may require collective action, clarifying that responsibility first resides with individual states, reinforcing the Security Council’s authority for decision-making, and stating that measures other than the use of force should be attempted before enforcement action.
World Summit Negotiations
As previously mentioned, the United States initially opposed R2P as defined by ICISS, but the Bush administration’s position had started to shift by 2005. In June 2005, the Task Force on the United Nations, which had been established by Congress in December 2004 to examine options for UN reform, released its report, American Interests and UN Reform. The task force, co-chaired by former Speaker of the House Newt Gingrich and former Senate Majority Leader George Mitchell, was influential in shaping the US negotiating position prior to the World Summit. The report advocated US support for the responsibility to protect within a UN context:
The United States should endorse and call on the UN Security Council and General Assembly to affirm a responsibility of every sovereign government to protect its own (p. 123) citizens and those within its borders from genocide, mass killing, and massive and sustained human rights violations.33
The task force also suggested that when the Security Council is ‘unable to take effective action in response to massive human rights abuses and/or genocide’ regional organizations and Member States may act when it is ‘demonstrably for humanitarian purposes’.34 Ultimately, the US negotiating stance was framed around two main points: delinking the responsibility to protect (which the United States now supported) from criteria for the use of force (which the United States still opposed as unnecessarily constraining), and maintaining the option to act outside authorization by the Security Council.
The negotiating positions of the other permanent members of the Security Council could be described as divided into two camps—France and the United Kingdom as the strongest proponents of R2P (they had come a long way since their early prudence) and China and Russia more sceptical—although there were also key issues on which all five permanent members agreed. The most divisive point was whether or not Member States and regional organizations could intervene militarily to protect civilians in the absence of a Security Council authorization; which France, the United Kingdom, and the United States supported, but Russia and China strongly opposed. Regarding the establishment of criteria or benchmarks for military intervention, which had been proposed in the ICISS and HLP reports, all permanent members were opposed but for decidedly different reasons: France, the United Kingdom, and the United States were opposed because they believed that criteria could limit the mobilization of political will and overly constrain the scope for action; Russia and China were opposed because they perceived that criteria might be too enabling and therefore potentially subject to abuse by powerful countries in relation to weak countries.35 China, Russia, and the United States remained strongly opposed to the ICISS report’s proposal for voluntary limits on the use of the veto for resolutions on civilian protection.
Meanwhile, many developing countries still harboured concerns about state sovereignty along the lines of their reaction to Annan’s speech to the General Assembly in September 1999, but the normative ground nevertheless had shifted somewhat in the interim, not least through the ICISS and HLP processes in which the developing world was well represented. This was perhaps most significant with respect to the African Union (AU), launched on 9 July 2002 as a successor to the Organization of African Unity. The Constitutive Act of the AU includes a clause asserting:
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.36
In one respect, a regional right to intervene in situations meeting a just cause threshold would seem to support the responsibility to protect as defined by ICISS. But the AU clearly reserved this right for itself rather than the UN, which seemed to indicate (p. 124) a limit on how much (and to whom) African states were willing to commit in ceding sovereignty. As for other groups of developing countries, many within the Non-Aligned Movement were sceptical of the responsibility to protect, arguing that it represented a form of humanitarian intervention lacking a basis in international law, while the G77 suggested Annan’s report In Larger Freedom should be revised to emphasize territorial integrity and state sovereignty.37 Among emerging powers, South Africa (a supporter) and India (a sceptic) were prominent in debates.
Proponents of R2P faced an uphill battle to build international consensus prior to the World Summit, not least because the United States and United Kingdom had resorted to humanitarian arguments in an attempt to justify their invasion of Iraq. The Canadian government, as the main state sponsor of ICISS and its report, actively lobbied at the highest levels, including in Moscow and New Delhi. Prime Minister Paul Martin, when addressing the General Assembly on 22 September 2004, concluded his discussion of the subject by emphasizing the element of constraint: ‘The responsibility to protect is not a license for intervention; it is an international guarantor of international accountability.’38 The R2P concept was modulated in three areas by Canada in order to make it more widely acceptable to Member States: first, the prospect of interventions unauthorized by the Security Council was dropped; second, the just cause threshold and precautionary principles were portrayed as limits rather than enablers for Council action; and third, in recognition of opposition among the P5, the proposal to limit the use of the veto for resolutions on civilian protection was ‘quietly dropped’.39 The compromises advanced in the advocacy strategy pursued by Canada and the ICISS commissioners were influential in pushing the debate forward. ICISS co-chair Evans specifically credits the ‘last minute personal diplomacy’ of Martin in lobbying key undecided and opposed countries.40
World Summit Outcome
On 16 September 2005, the General Assembly adopted the World Summit Outcome Document without a vote. Comprising 170 paragraphs, including content on establishing the Peacebuilding Commission (97–105) and the Human Rights Council (157–60), the resolution includes a three-paragraph (138–40) section titled, ‘Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’. Drawing upon the conceptual framework of the ICISS report, paragraph 138 specifically emphasizes the obligation of individual states to protect their populations, including through conflict prevention:
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.41
(p. 125) Notably, the scope for the application of R2P is closer to the language in Annan’s A More Secure World—which specified ‘genocide, ethnic cleansing and crimes against humanity’—than the broader formulations in the reports of ICISS, HLP, or the Gingrich–Mitchell task force. Paragraph 138 also suggests the ‘international community should, as appropriate, encourage and help states to exercise this responsibility’ and assist the UN in establishing an early warning capacity (but what constitutes ‘appropriate’ external assistance and how UN early warning was meant to function remained unspecified).
Paragraph 139 concerns the responsibility of ‘the international community, through the United Nations’ to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. The core part of the text states:
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.42
A few elements of this statement are worth highlighting before proceeding: first, action involving the use of force is explicitly tied to Security Council authorization; second, the Council will take action on a ‘case-by-case basis’, thus emphasizing the inherently political (rather than principled) nature of the body; third, enforcement action should occur only after ‘peaceful means’ have been considered and found inadequate; and fourth, there is a high threshold for international intervention (i.e. ‘national authorities manifestly fail’). Paragraph 139 also commits to state capacity-building for civilian protection and conflict prevention. The last part of the section, paragraph 140, simply expresses support for the work of the Special Adviser of the Secretary-General on the Prevention of Genocide.
The consensus that emerged was formulated around three core propositions, the last one silent: a primary emphasis on the responsibility of the host state, a high just cause threshold for military intervention, and a rejection of voluntary limits on the use of the veto by P5 members. Two difficult issues—criteria for the use of force and intervention without Security Council authorization—seemed as if they might derail the negotiations. Annan, the HLP, and numerous African states favoured criteria for the use of force, while the United States, Russia, and China were opposed (although for different reasons).43 Criteria for the use of force were ultimately dropped from the draft text altogether. As for humanitarian intervention without Security Council authorization, the United States, the United Kingdom, and France advocated including this option, while Russia, China, India, and African states were strongly opposed.44 The standoff was resolved in favour of the latter as the World Summit Outcome Document explicitly references enforcement action as being ‘through the Security Council, in accordance with the Charter, including Chapter VII’.
(p. 126) Conclusion
In reviewing the progression of thinking and action on R2P from 1999 to 2005, several points stand out. First, normative entrepreneurship, if driven forward in the right circumstances even by a middle power (perhaps particularly by a middle power), can be remarkably effective. Lloyd Axworthy championed several ideas connected with his conception of human security, including three that were particularly consequential: the anti-personnel land-mines treaty, the International Criminal Court, and the need to address and if possible resolve Annan’s dilemma of intervention. Second, tactics and persistence matter in normative entrepreneurship. Annan’s dodging and weaving in pursuit of a conceptual breakthrough to the dilemma he had defined, while frustrating a number of his officials, left him enough tactical leeway to advance debate and advocacy whenever an opportunity arose. His quiet determination paid off handsomely. Third, this account reveals considerable continuity among some actors involved; in short, individuals matter. Gareth Evans not only sat on both ICISS and the HLP but served as a tireless (and to some of the P5 and other opponents a very tiresome) advocate. Many others, such as Ramesh Thakur, displayed great commitment to R2P and admirable courage in advocating for it. Finally, the backing of powerful states, which itself may only come about after sustained lobbying, is ultimately a necessary component for success within a multilateral framework. In terms of UN dynamics, the influence and fluency of argument of both France and the United Kingdom, once they had come around to R2P, was vital.
We advance these arguments here simply to remind readers that at the UN the odds were stacked against R2P at the outset, but that it was adopted in a comparatively short time and unanimously by Member States due to some of the factors we outlined earlier. Thus, diplomatic initiative and activism can work, cynics notwithstanding. Annan articulated the ‘dilemma of intervention’ in 1999, and thus prompted the creation of ICISS after other approaches failed to bear fruit. The inclusion of R2P less than four years after it had been initially formulated by ICISS represented a victory for Canada, the ICISS commissioners, and, above all, Annan (among other advocates).
As of September 2005, had the articulation of R2P effectively solved Annan’s dilemma of how to prevent a ‘future Rwanda’ or a ‘future Kosovo’? Probably not. But did it represent progress towards this goal? Undoubtedly yes. (Its reaffirmation by the Security Council on 28 April 2006, through resolution 1674 on the protection of civilians, is a notable indicator in this regard.)45 Yet, as other chapters in this volume document, nearly a decade later R2P remains highly debated both in theory and in practice. It has proven particularly difficult to operationalize by the Security Council, perhaps raising questions regarding the clarity of the concept as articulated in the World Summit Outcome Document as well as the depth of commitment to it among the P5 members.
Finally, R2P reminds us that admirable principles of international law and diplomacy do not always mutually reinforce each other. Indeed, as in constitutional law, they often (p. 127) overlap uncomfortably or clash outright, keeping courts, decision-makers, academics, and pundits busy. But this fact in no way makes them irrelevant or redundant. Thus, we may confidently expect R2P to be both invoked and criticized frequently in the future, not least within the Security Council. As former UN Under-Secretary-General for Political Affairs Kieran Prendergast and others have noted, the Security Council is ultimately prone to expediency.46 Thus, each of the P5 will at some time find support for their interests in the R2P principle. This may discomfit some supporters of the concept but will not surprise others.47
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(1.) The paragraphs of this section are informed by many publications, but particularly by Kofi Annan with Nader Mousavizadeh, Interventions: A Life in War and Peace. Nevertheless, our text, in its construction and content, embodies the judgements of the authors.
(5.) Interview with Nader Mousavizadeh, 30 September 2014.
(7.) The bobbing and weaving involved in this iterative process, with Annan from speech to speech laying the emphasis on different factors, imperatives, and principles, doubtless responding to tactical judgements on what the traffic at the UN would bear at any given time, frustrated and confused some at the UN. But it was purposive.
(8.) A/54/549, 15 November 1999; and S/1999/1257, 16 December 1999.
(9.) S/PV.3977, 12 February 1999; S/PRST/1999/6, 12 February 1999.
(10.) S/1999/957, 8 September 1999.
(11.) S/RES/1265, 17 September 1999, operative paragraph 10.
(12.) S/RES/1270, 22 October 1999, operative paragraph 14. Canada’s success was, however, undermined by its failure to provide troops or other resources beyond its regular UN peacekeeping assessments in order to help implement this groundbreaking development.
(14.) A/54/PV.4, 20 September 1999.
(15.) A/54/PV.4, 20 September 1999.
(17.) The co-authors of this chapter, David M. Malone and Charles Cater, served as chair and rapporteur respectively of this meeting.
(18.) The report of the meeting, closely held for a time, is now merely of historical interest as a way-station en route to R2P. It can be obtained by requesting it from email@example.com or firstname.lastname@example.org.
(20.) A/55/PV.6, 7 September 2000.
(21.) A/55/PV.15, 14 September 2000.
(25.) At the initiative of France, a similar proposal has resurfaced more recently, but it seems unlikely to gain significant support among fellow P5 members anytime soon.
(29.) A/58/PV.7, 23 September 2003.
(30.) United Nations 2004, p. 66. This paragraph did not slip in without contention among Panel members. Chinese concerns were sharp and some members of the Panel doubted the ‘legitimacy’ of ideas developed by a commission of the ICISS type. Nevertheless, none of the Panel members resiled publicly from the text.
(32.) A/59/2005, 21 March 2005, Annex 7(b).
(36.) The Constitutive Act of the African Union, paragraph 4(h).
(38.) A/59/PV.5, 22 September 2004.
(41.) A/60/L.1, 15 September 2005, para. 138.
(42.) A/60/L.1, 15 September 2005, para. 139.
(45.) S/RES/1674, 28 April 2006, operative para. 4.
(47.) The authors are very grateful to Edward Mortimer, Nader Mousavizadeh, and Kieran Prendergast for sharing with us their recollections and perceptions of developments outlined in the first section of this chapter. We would also like to thank Sebastian von Einsiedel and Paul Romita for their helpful comments on earlier drafts of the chapter.