a model case of r2p prevention

M A R T I N U S

NIJHOFFP U B L I S H E R S Global Responsibility to Protect 5 (2013) 192-214 brill.com/grap

A Model Case of R2P Prevention?Mediation in the Aftermath of Kenya's 2007

Presidential Elections

Noie Crossley*London School of Economics

[email protected]

AbstractThe Responsibility to Protect (R2P) comprises the responsibility to prevent, to react, and torebuild. What sets R2P apart from the previously prevailing idea of humanitarian interven-tion is, first, an emphasis on prevention, and second, a stated preference for a multilaterallycoordinated response to crises. The third and perhaps newest feature of R2P is the idea thatregional organisations have an important role to play in facilitating conflict resolution andthe implementation of the Responsibility to Protect. Kenya's post-election violence in 2007was widely viewed as the first case of'R2P prevention'. International mediation efforts by theAfi-ican Union Panel of Eminent Personalities, under the leadership of the former UNSecretary-General Kofi Annan, and with the support of the UN and other actors, were suc-cessful at resolving the conflict without the use of coercive measures. Kenya was seen asR2P's success story - multilaterally orchestrated action to prevent an escalation of conflict,with heavy reliance on regional actors. This paper questions to what extent this accountholds true, and whether the Kenyan case really was a successful instance of'R2P prevention'.An analysis of the Kenyan case ultimately leads to the conclusion that the application of R2Pwas, in fact, unrelated to the success of the conflict mitigation efforts. The Kenyan contextwas one which was favourable to the success of the mediation, and it is unlikely R2P wouldhave succeeded without these contingent factors. Nevertheless, the application of R2P tothe Kenyan case served to promote R2P as a framework that emphasises non-coercive, pre-ventative intervention facilitated through regional actors.

* Nole Crossley is a PhD candidate at the London School of Economics. I would like tothank interviewees in Kenya for their time and for sharing their views and opinions.Interviews were conducted in Nairobi between 8-22 December, 2011. A draft of this articlewas presented at the ISA Convention in San Diego in April 2012, and I would like to thank theparticipants for their insightful thoughts and suggestions. Many thanks also to Chris Brownand Mark Hoffman, as well as three anonymous reviewers for their comments on an earlierdraft, and to David Anderson, Stephen Brown and Nie Cheeseman for helpful advice pre-fieldwork. I am of course responsible for any shortcomings and the opinions expressed.

i) Kdninklijko Brill NV, Leiden, 21)13 HOI 10.116:VlS7.';984X-00502004

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KeywordsResponsibility to Protect; Responsibility to Prevent; Kenya; mediation; African Union;United Nations

Introduction

The Responsibility to Protect (R2P) comprises the responsibility to prevent,to react, and to rebuild in cases of genocide, ethnic cleansing, war crimes,and crimes against humanity, and to do so peacefully where possible, withthe use of coercive measures as a last resort only.' This article will provide asummary of the events in the run up to Kenya's election in 2007 and theoutbreak of violence following the disputed election results. It wfll outlinethe initial responses at the local, regional, and international levels, andshow how the pressure applied contributed to a peaceful, non-coerciveresolution of the dispute. The aim of this article will then be to critique theapplication of the II2P label to the Kenyan case. To what extent was thisreally R2P? And if R2P 'worked' in Kenya, why was this so? This article willcritically evaluate the claim that R2P was a successful instance of "R2P pre-vention'. Beyond this, however, this article seeks to address the controversyabout the narrative of Kenya as a model case of'R2P prevention'.

The three attributes that set R2P apart from the idea of humanitarianintervention that prevaUed in the 1990s are, first, its emphasis on preven-tion; second, a stated preference for a multilaterally coordinated response;and, third, the desirability of local consent and/or regional involvement inconflict resolution efforts. R2P's emphasis on prevention was first devel-oped in the 2001 ICISS report,^ then referred to in paragraph 138 of the 2005World Summit Outcome Document, and developed more fully in theSecretary-General's 2009 report that laid out the three-pillar approach,where piflars one and two - states' responsibility and the responsibility toassist states to ilfil their responsibility - are crucial for prevention.^ R2P'spreference for multilateralism is evident in all the relevant policy papers

' '2005 World Summit Outcome', UNGA Res. 60/1,16 September 2005. The responsibilityto rebuild is outlined in International Gommission on Intervention and State Sovereignty(ICISS), The ResponsibiUty to Protect (Ottawa: IDRC, 2001).

^ The ICISS report developed the 'three responsibilities' approach: the responsibility toprevent, to react, and to rebuild. See esp. p. xi. Prevention is covered in detail in the section 3of the report, 'The Responsibility to Prevent', pp. 19-28.

Ban Ki-Moon, Implementing the Responsibility to Protect: Report of the Secretary-General, A/63/677,12 January 2009.

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since the 2001 report first stated that 'there is no better or more appropriatebody than the United Nations Security Council to authorize military inter-vention for human protection purposes';'* and the assumption that the UNSecretariat ought to be involved in conflict resolution to prevent conflictescalation has been a constant feature in all relevant policy documentssince then (of course both the UN Security Council as well as the UNSecretariat have been involved in conflict prevention since their establish-ment, and long before the emergence of R2P). Perhaps the newest aspect ofthe conceptual development of the R2P concept is the idea that regionalorganisations have an important role to play in facilitating conflict resolu-tion and the implementation ofthe R2P.^

In sum, R2P holds that ideally, multilateralism promotes greater impar-tiality; an emphasis on prevention and non-coercive measures prevents themisuse of the concept by the powerful against the weak; and the govern-ment's consent or regional participation protects against exploitative for-eign interference in local affairs. In practice, however, intervention orinterference always takes place in a particular political context in which thevarious norms R2P alludes to are not as easily reconcilable. At the concep-tual level, R2P policy advocates may assert that a 'modern understanding ofthe meaning of sovereignty' provides an approach that 'bridges the dividebetween intervention and sovereignty',^ but in practice the normative ten-sions at play reflect a deep-rooted discord between cosmopolitan and com-munitarian notions that is not easily overcome.'' In practice, states havediffering opinions towards the notion of a Responsibility to Protect and theconsequences of its consolidation as the norm for state sovereignty. Non-Western states are more cautious about a concept that potentially legiti-mises intervention which in practice is more likely to occur in the periphery

'' ICISS, The Responsibility to Protect, p. xii.^ A reflection of this is the Interactive Dialogue ofthe UN General Assembly on the role

of regional and sub-regional arrangements in implementing the Responsibility to Protect,held in July 2011.

^ ICiSS, The Responsibility to Protect, p. 8; p. 17.' Thomas Pogge lays out the defining aspects of cosmopolitanism in Thomas Pogge,

'Cosmopolitanism and Sovereignty*, in Chris Brovsm (ed.) Political Restructuring in Europe:Ethical Perspectives (London: Routledge, 1994), p. 9; for an outline ofthe communitarianapproach see Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad (NotreDame: University of Notre Dame Press, 1994), p. 8. For a discussion of the cosmopolitan-communitarian schism see Chris Brown, 'Towards a Neo-Aristotelian Resolution of theCosmopolitan-Communitarian Debate', in Practical Judgement in Intemational PoliticalTheory: Selected Essays (Abingdon, xon / New York: Routledge, 2010).


or the Global South, and sometimes suspect ulterior motives or an imperi-alist agenda.^ All this goes some way towards explaining the persistentreluctance of many states to recognise R2P as a consolidated norm.^

Kenya was seen as a model case of intervention informed by a newapproach to interference on humanitarian grounds. International media-tion efforts by the African Union Panel of Eminent Personalities, under theleadership of the former UN Secretary-General Kofi Annan and with thesupport of the UN, neighbouring states, donors, and civil society wasregarded as having successfully brought about a resolution of the crisis inthe name of R2P. The mediation resulted in an agreement between the twopresidential candidates, Mwai Kibaki and Raila Odinga, and successfullyaverted a deepening of the crisis created by the post-election turmoil thathad caused 1,000 deaths and led to 600,000 displaced people. Large-scaleethnic conflict was averted without the use of coercive measures.Consequently, the case of Kenya was seen as R2P's success story -multilaterally orchestrated action to prevent an escalation of conflict, withheavy reliance on regional actors.

R2P supporters, including think tanks and NGOs were enthusiastic aboutthe meaning of the Kenyan case for R2P. At the Berlin speech the Secretary-General cited Kenya as an example of a case in which the R2P approach tohumanitarian crises was successfully employed: 'The combined efforts ofthe African Union, influential Member States, the United Nations and rnyesteemed predecessor, Kofi Annan, were instrumental in curbing the post-election violence.''" Human Rights Watch stated that the internationalresponse was 'a model of diplomatic action under the responsibility to

8 For an overview of states' differing views on R2P and how they changed or persisted,see Alex J. Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities(Cambridge: Polity Press, 2009), pp. 66-97 on states' views in the run-up to the 2005 WorldSummit; and for recent developments regarding states' policies on R2P see AlexJ. Bellamy,'ChapterTwo: Implementing R2P at the UN', in AlexJ Bellamy, Sara E. Davies, and MonicaSerrano (eds.). Global Politics and the Responsibility to Protect: From Words to Deeds (Oxon:Routledge, 2011), pp. 26-50. See also Jonas Claes, 'Protecting Civilians from Mass Atrocities:Meeting the Challenge of R2P Rejectionism', Global Responsibility to Protect, 4/1 (2012).

^ For a detailed discussion on the relevance of R2P for intemational law see Maria Bandaand Jennifer M. Welsh, 'Intemational Law and the Responsibiiity to Protect: Clarifying orExpanding States' Responsibilities?', Gbbal Responsibility to Protect, 2 (2010). Fora collectionof publications promoting R2P see Global Centre for the Responsibility to Protect, 'GCR2PDocuments', http://www.globalr2p.org/advocacy/index.php and Intemational Coalition forthe Responsibiiity to Protect, 'Coalition Publications', http://v*Tvw.responsibilitytoprotect.org/index.php/publications/coalition-publications.

'" SG/SM/U7oi,i5july2oo8.

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protect'." In an address to the World Affairs Council of Oregon, MarkSchneider, Senior Vice President of the International Crisis Group, saidthat:

[tjhere is today one instance, Kenya, where we can see the potential of theResponsibility to Protect - in the background, unstated until after the fact, butvery definitely a factor in international decision making to limit the waves ofethnically-linked killings in Kenya in 2008.'^

The think tank the Global Centre for the Responsibility to Protect stated ina policy brief that 'Kenya is a promising sign in the broader context ofefforts to prevent atrocities and uphold the responsibility to protect'.'^Roger Cohen said of the Kenyan case that 'the remarkable power-sharingoutcome can, I believe, serve as a model: Call it the Nairobi paradigm orAnnan's R2P marker.'''*

Explicit reference to R2P as the conflict erupted and escalated waslimited. Although R2P had by that time been endorsed in the OutcomeDocument of the 2005 World Summit, the speeches, formal statements,and media coverage on the electoral violence scarcely mentioned R2P.Advocates of R2P, however, retrospectively argued that because thoseinvolved in the mediation, especially former UN Secretary-General KofiAnnan, were aware of the wider debate that had shaped internationalhumanitarian policy in recent years, R2P had informed the course of eventsin Kenya during the crisis.

A critical evaluation of the application of R2P in the case of Kenya needs,first, to address the role international involvement actually had, andwhether this has been over-estimated - whether an escalation of violencewas not, in fact, imminent; and whether the prevention of mass atrocitieswas improperly attributed to R2P. Secondly, a critical approach will need toassess whether the mediation actually corresponded to R2P in terms of itscharacteristics and their resemblance to the individual R2P principles:coercive measures without the consent of the host government as a last

" Global Centre for the Responsibility to Protect, 'The Responsibility to Protect andKenya: Past Successes and Current Challenges', Policy Brief, 13 August 2010.

'2 Mark Schneider, 'Implementing the Responsibility to Protect in Kenya and Beyond',http://www.responsibilitytoprotect.org/index.php/component/content/article/35-r2pcs-topics/2730-international-crisis-group-implementing-the-responsibility-to-protect-in-kenya-and-beyond , accessed 21 August 2011.

'3 Global Centre for the Responsibility to Protect, 'The Responsibility to Protect andKenya: Past Successes and Current Challenges'.

'" Roger Cohen, 'African Genocide Averted', fhe New York Times, 3 March 2008.

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resort only; a multilateral approach; and the involvement of regional organ-isations. And third, if the latter two questions can be answered in the affir-mative, R2P was actually successful in the Kenyan case.

A 'Classic R2P' Situation: Violent Clashes in the Aftermath of the 2007Elections

R2P favours prevention over reaction - if the prevention of politicalviolence is successful, there will be no need to intervene to halt alreadyoccurring mass atrocities and crimes against humanity. This emphasis onprevention necessitates a clear definition of the term. Narrowly defined,one could argue that in the Kenyan case, the threshold for 'reaction', with1,000 dead and many more displaced, had already been met. To some extenttherefore, R2P is necessarily always 'reaction', contrary to what the ICISSreport and subsequent publications and reports suggest. A real preventa-tive approach would be more akin to a Human Security approach thataddresses real long term, structural issues that give rise to a potential forthe kind of political violence R2P aims to address. Notwithstanding thiscaveat, however, the ICISS report that outlines R2P prevention can be takenas a basis for assessing the success of international measures in the Kenyancase. The ICISS report outlined several crucial aspects for prevention: rootcause prevention efforts; early warning; and the so-called 'preventive tool-box'.'^ The ICISS report lists as root causes 'poverty, political repression, anduneven distribution of resources','^ stating that to ignore underlying factors'amounts to addressing the symptoms rather than the causes of deadlyconflict''^ Root cause prevention could involve democracy promotion andcapacity building and addressing structural issues such as redistributionand constitutional reform.

Kagwanja and Southall have identified several underlying causes for theoutbreak of the violence, including: population growth and extensive pov-erty; the construction of political coalitions around Kenya's 42 ethnicgroups; the manipulation of armed militias by the elite; and, importantly,land disputes dating back to colonial times, organised along ethnic lines

ICISS, The Responsibiiity to Protect, pp. 19-27.Ibid., p. 22.Ibid., p. 23.

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(between Kalenjin and Kikuyu in the Rift Valley).'^ Reforms that had beenpursued through settlement schemes and the land purchase programme bythe successive governments had ethnicised the land question and laidthe ground for conflict along ethnic lines.'^ Land ownership is linked tosocio-economic success in Kenya, and land and property are regarded asnecessary to secure livelihood and survival.^" Sometimes grievances areaggravated by corruption in the allocation of land in settlement schemes.Land management institutions do not work to provide support to resolveland disputes as senior public servants, local land boards, the provincialadministration, and politicians allocate public or private land illegally andirregularly with impunity. One explanation for the post-electoral violence,therefore, was that individuals simply lost confidence in these institutionsand became inclined to take matters into their own hands and resort toviolence.

Clearly, R2P is not designed to address the longer term, structural issuesdescribed above, although it emphasises supporting national, regional andinternational initiatives that address such issues. This is most evident in the'narrow but deep' approached outlined by the Secretary-General's speechin Berlin in 2008. Although R2P targets a narrow set of issues as laid out inthe 2005 World Summit Outcome Document - genocide, ethnic cleansing,war crimes, and crimes against humanity - the response to these crimes'should be deep, utilizing the whole prevention and protection took kitavailable to the United Nations System, to its regional, subregional and civilsociety partner and, not least to the Member States themselves'.^' This toolkit can consist of political and diplomatic measures such as the involve-ment of the UN Secretary-General; fact-finding missions; mediationthrough good offices; the threat of political sanctions; targeted travel bans;and asset freezing. It can also involve positive and negative inducementssuch as promises of funding or investment, or, conversely, threatening the

'8 Peter Kagwanja and Roger Southall, 'Introduction: Kenya - a Democracy in Retreat?',in Peter Kagwanja and Roger Southall (eds.), Kenya's Uncertain Democracy: The ElectoralCrisis of 2008 (London and New York: Routledge, 2010).

'9 Karuti Kanyinga, 'The Legacy of the White Highlands: Land Rights, Ethnicity and thePost-2007 Election Violence in Kenya', in Peter Kagwanja and Roger Southall (eds.), Kenya'sUncertain Democracy: The Electoral Crisis of 2008 (London and New York: Routledge, 2010).

^ Prisca Mbura Kamungi, 'The Politics of Displacement in Multiparty Kenya', in PeterKagwanja and Roger Southall (eds.), Kenya's Uncertain Democracy: The Electoral Crisis of2008 (London and New York: Routledge, 2010).

2> SG/SM/11701,15July 2008.

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withdrawal of investment or IMF AVorld Bank support or development aid.In the legal sphere, prevention tools include the threat of ICC prosecution.Ultimately, in some cases, 'direct prevention might involve the threat to use

The ICISS report states that in terms of direct prevention efforts, 'theessential and common attribute of all these actions and measures isthat they aim - even where the cooperation of the state concerned isreluctant - to make it absolutely unnecessary to employ directly coercivemeasures against the state concerned.'^ ^ The distinction between non-coercive and coercive measures is however, not entirely clear-cut - muchdepends on whether threats - political, economic, legal, or military - countas non-coercive and whether non-military sanctions and pressures areregarded as coercive. In any case, R2P promotes a gradual and context-based escalation of tools, giving preference to less intrusive, non-militaryforms of pressure.

Evidence suggests that the situation in Kenya post-elections in 2007 wasindeed very serious, that the political climate was extremely volatile, andthat there was a real potential for an escalation of politically motivated vio-lence along ethnic lines. 'We were well on the downward spiral to civil war'comments Wycliffe Muga, prominent Kenyan journalist.^^ A report by theKenya National Commission on Human Rights (KNCHR) noted that therewas 'organisation and method to the violence', with attacks 'carried outwith military discipline'.^^ Attacking groups underwent oathing ceremo-nies, both Kalenjin and Kikuyu forces were transported in vehicles. Roadblocks were set up and commuters ethnically targeted. The areas mostaffected were the Rift Valley, Nyanza, Western, Coast, and Central regions.

The voting itself had been relatively peaceful and predictions were opti-mistic that the elections would pass peacefuUy.^ ^ Initially, Raila Odinga,representing the Orange Democratic Movement (ODM), had a strong leadin vote counting on 28 December, but this lead shrank to only 38,000 voteswith almost 90% of the votes counted on 29 December. On 30 Decemberthe Electoral Commission of Kenya (ECK) announced Mwai Kibaki, thecandidate of the Party of National Unity (PNU) the winner, having won

22 ICISS, The ResponsibiUty to Protect, p . 25.23 Ibid., p . 23." Interview held in Nairobi, 13 December 2011.25 Kenya National Commiss ion on H u m a n Rights, On the Brink ofthe Precipice: A Human

Rights Account of Kenya's Post-2007 Election Violence (2008), p . 3.26 For elect ions results and a recount of events, see Kagwanja and Southall, ' Introduction ' .


47% of the popular vote, over Odinga with 44%. The remaining 9% were forKalonzo Musyoka, representing the Orange Democratic Movement - Kenya(ODM-K). This translated into 99 seats for ODM and 43 for the PNU.Counting seats of allied parties, however, ODM could command thesupport of just 103 parliamentarians compared to the PNU's 104. Followingthe announcement of the results, Kibaki was sworn in fora second five-yearterm on 30 December, even though the opposition and internationalobservers called for a recount of the votes. The perception was widespreadthat the count had been manipulated in favour of Kibaki. Supporters ofOdinga in ODM strongholds (Nairobi, Nyanza, and the Rift Valley) beganprotesting the election in demonstrations that soon degenerated into vio-lence including killing, looting, and rape. The ODM, however, refused totake the dispute to the courts, pointing out that Kibaki had nominated sbcjudges to the Court of Appeal and to the High Court several days prior tothe election.

In the following days the violence worsened, with ethnically targetedkilling, rape, and plunder. On New Year's Day 39 people, mainly women,children, and disabled people were burnt to death in a church in Kiambaa,near Eldoret, set on fire by supporters of the ODM. The violence was mainlydirected against Kikuyu, Kibaki's ethnic group, and others who werebelieved to have voted for his party, the PNU. From late January 2008,Kikuyu youths and Mungiki militias, reacting to the killings and displace-ment in ODM strongholds, engaged in reprisal attacks in Nairobi and partsof the Rift Valley and Central Kenya, targeting Luo, Luhya, and Kalenjin,ethnic groups that traditionally support the ODM." The violence tookdifferent forms:^ ^ disorganised, spontaneous violence that grew out ofprotests against perceived rigging of the election; institutional violence bythe security forces to disperse protesters; less spontaneous, better organ-ised violence by militias formed out of criminal gangs, enlisted by certainpoliticians and business people from the Rift Valley region; and, fourth.

" Ibid. For a summary of the outbreak of the post-election violence, see also PeterKagwanja, 'Courting Genocide: Populism, Ethno-Nationalism and the Informalisation ofViolence in Kenya's 2008 Post-Election Crisis', in Peter Kagwanja and Roger Southall (eds.),Kenya's Uncertain Democracy: The Electoral Crisis of 2008 ( London and New York: Routledge,2010).

^* Marcel Rutten and Sam Owuor, "Weapons of Mass Destruction: Land, Ethnicity andthe 2007 Elections in Kenya', in Peter Kagwanja and Roger Southall (eds.), Kenya's UncertainDemocracy: The Electoral Crisis of 2008 (London and New York: Routledge, 3Qio); Kanyinga,'The Legacy of the White Highlands'; and Kagwanja, 'Courting Genocide'.

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retaliatory or revenge attacks, predominantly by Kikuyu who expelledKalenjin, Luo, and Luhya from rented premises in Nairobi, Naivasha, andNakuru.

The violence finally came to an end with the signing of the NationalAccord on 28 February 2008, which established a power-sharing agreement.By that time, however, an estimated 1,300-2,000 people had been killed.A further 400,000-600,000 had been displaced, and the disruption ofagriculture had resulted in a humanitarian crisis.^ ^ To promote reconcilia-tion, restoration, and combat impunity, the National Accord of 28 Febmary2008 provided for the establishment of three separate commissions: theIndependent Review Commission (IREC, or 'Kriegler Commission', namedafter the South African Judge heading the commission), to investigate theelections and make recommendations to improve the electoral process infuture; the Commission of Inquiry into the Post-Election Violence (the'Waki Commission' named after Judge Waki who headed the commission),to investigate the causes of the violence and the role that state securityagencies played, and outlining how this could be prevented in the future;and a Truth, Justice and Reconciliation Commission, which was to inquireinto historical injustices.^"

A Regional Initiative: Ko Annan's Mediation Team

R2P emphasises the importance of regional involvement. In his 2009 reporton Implementing the Responsibility to Protect, the Secretary-General madereference to the Kenyan case, lauding the 'successful bilateral, regionaland global efforts to avoid further bloodshed in early 2008 following thedisputed election',^' which showed how international actors could success-fully respond to R2P situations under pillar three of the R2P, 'Timely andDecisive Response', pointing out that regional organisations, for whichprovision is made in Chapter VIII of the UN Charter, provided a means ofreacting without the potential deadlock that could arise in the Security

idea of a regional dimension to R2P was pursued further in

29 Kagwanja, 'Courting Genocide'.30 Ibid.3' Ban Ki-Moon, Implementing the ResponsibiUty to Protect: Report of the Secretary-

General, A/63/677,12 January 2009, p. 9."^ Ibid., p. 23.

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2011, when the General Assembly discussed the role of regional organisa-tions in implementing R2P in an 'Informal Interactive Dialogue on the Roleof Regional and Sub-Regional Arrangements in Implementing theResponsibility to Protect'.^^ In advance of this meeting, the Secretary-General published a report in which he outlined the role internationalorganisations could and should take. He outlined various ways in whichregional contribution could be beneficial to the implementation of R2P:

Context matters. The Responsibility to Protect is a universal principle. Itsimplementation, however, should respect institutional and cultural differ-ences from region to region ... Energetic implementation efforts by regionaland subregional organizations can bring added value to each of the three pil-lars of my strategy for fulfilling the promise of the responsibility to protect**

Regional involvement in the Kenyan case took the form of a mediationteam sponsored by the African Union. The African Union (AU) sent a num-ber of potential mediators, first Desmond Tutu, South African activistand retired Anglican bishop; then former Ghanaian president John Kufuor,followed by Cyril Ramaphosa, South African activist and politician - butthe mediation effort did not properly get underway before the arrival offormer UN Secretary-General Kofi Annan. The agreement made in April2008 between President Kibaki and Raila Odinga was brokered by KofiAnnan and his team of'eminent African personalities', including BenjaminMkapa and Graa Machel. Annan's team had diverse diplomatic skills - theformer Ghanaian UN Secretary-General had much experience with conflictresolution and knowledge of international structures of authority andleverage. Mkapa, former Tanzanian president, had local knowledge due togeographical proximity and familiarity with the political parties.^^ Machel,known for her advocacy work on women's and children's rights, had servedas Mozambique's Minister of Education between 1975 and

33 International Coalition for the Responsibility to Protect, 'General Assembly Debate onthe Responsibility to Protect and Informal Interactive Dialogue', http://wvkrw.responsibilitytoprotect.org/index.php/component/content/article/35-r2pcs-topics/2493-general-assembly-debate-on-the-responsibility-to-protect-and-informal-interactive-dialogue-,accessed 12 June 2011.

3* Ban Ki-Moon, Implementing the Responsibiiity to Protect: Report of the Secretary-General, A/63/677,12 January 2009, p. 3.

35 Gilbert M. Khadiagala, 'Regionalism and Conflict Resolution: Lessons from the KenyanCrisis', in Peter Kagwanja and Roger Southall (eds.), Kenya's Uncertain Democracy: TheElectoral Crisis of 2008 (London and New York: Routledge, 2010).

36 Kenya National Dialogue and Reconciliation, http://www.dialoguekenya.org/panel.aspx, accessed 24 March 2012.

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The mediation team was mandated by the AU, and received technicalsupport from the UN (from DPA, UNDP, the UN Office in Nairobi, and theCentre for Humanitarian Dialogue in Geneva).^ ^ The mediation team useda building block approach, beginning with less contentious issues, and byworking through them building confidence to engage the more challengingissues.^ ^ The agenda consisted of four elements: first, immediate action tostop violence and restore fundamental human rights; second, dealing withthe humanitarian crisis and national reconciliation; third, negotiation onthe on-going political crisis; and fourth, long-term strategies for durable

Supporting the regional efforts were various local civil society initiativesby organisations including the Coalition of Citizens for Peace, whichprovided a space for Kenyans to engage in dialogue; the activities of theKenyan Association of Manufactures, who feared negative effects of thecrisis on the economy; and the Central Organisation of Trade Unionsoffered to initiate talks between Kibaki and Odinga (although withoutsuccess). A coalition of more than 30 non-governmental and civic orga-nisations formed an umbrella movement, Kenyans for Peace with Truthand Justice (KPTJ), also supported the AU's mediation efforts."*" 'There wasa marvellous exhibition of civil society unity and strength at the time, so itis important not to downplay the role of domestic pressure' points outMaina Kiai, UN Special Rapporteur. 'Businesses were coming out, the mediawas doing stuff- it was not just the internationals, they did not solve thisproblem."*'

The AU took the lead in the mediation, although alternatives had beenconsidered. The crisis tested two other regional organisations that onemight have expected to play an important role as well: the East AfricanCommunity (EAC) and the Intergovernmental Authority on Development(IGAD). The EAC, headed by Ugandan president Museveni, initially calledfor a political and judicial resolution to the crisis - the EAC countrieshad a strong interest in a negotiated settlement, for economic reasons

3' Josie Liarma Kaye and Elisabeth Lindenmayer, A Choice for Peace? The Story of Forty-One Days of Mediation in Kenya (New York: International Peace Institute, August 2009).

38 For a summary of the mediation strategy, see Monica Kathinajuma, 'African Mediationof the Kenyan Post-2007 Election Crisis', in Peter Kagwanja and Roger Southall (eds.), Kenya'sUncertain Democracy: The Electoral Crisis of 2008 (London and New York: Routledge, 2010).

33 See also Kaye and Lindenmayer, A Choice for Peace?* Juma, 'African Mediation of the Kenyan Post-2007 Election Crisis'.*" Maina Kiai, UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly

and of Association, interview in Nairobi, 20 December 2011.

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(major transport routes from Mombasa were already paralysed, andUganda, Burundi, Eastern Congo, Rwanda, and South Sudan were affectedby fuel shortages and the flow of imports was disrupted) - but efforts tolead a mediation effort were complicated by Museveni's endorsement ofKibaki's proclaimed victory and reports that 3,000 Ugandan troops hadbeen placed in western Kenya to support Kenyan government forces.'*^Similarly, IGAD was perceived by ODM as sympathetic towards Kibaki, andODM refused its offer of mediation on the same grounds.

John Kufuor, former Ghanaian president and chairman of the AfricanUnion at the time suggested he could make Annan available.'*^ On January16, the day Annan was supposed to embark to Kenya, Annan was taken tohospital with a fever, causing a week-long delay ofthe start ofthe media-tion. It was during this time that he got all sides to agree to a single media-tion process and the full and undivided support of the internationalcommunity.'*^ When Kofi Annan and his team arrived in Nairobi in lateJanuary Museveni still tried to stay involved in negotiations, meeting withboth Kibaki and the ODM, and suggesting the establishment of a judicialcommission of inquiry into the electoral outcome. However, the ODMderided this proposal and stated that multiple negotiation tracks were notefficient. Annan again sought assurances from both Western and Africanleaders that there would be no competing mediation processes. Musevenithen attended an event signalling the beginning of the AU mediation on24 January, which concluded the EAC's involvement."*^

At the beginning of February, proposed talks by the IntergovernmentalAuthority on Development (IGAD), to be held in Nairobi in the week of 4February, again threatened the success of the Annan mediation. The PNUinvited these talks, especially as it consolidated the legitimacy of theKenyan president as such a meeting could only be convened by a head ofstate, but ODM opposed them and called upon Kenyans to unite in peace-ful protests. Finally, IGAD met at the ministerial level, and Annan statedpublicly there would continue to be just one mediation process. ODMsubsequently cancelled the planned protests. The US and Canada reported

"2 Khadiagala, 'Regionalism and Conflict Resolution'. Khadiagala provides an assessmentofthe various regional and sub-regional organisations in respect to their contribution to themediation process.

*'^ Mugambi Kiai, Kenya Program Manager, Open Society Initiative Eastem Africa, inter-view in Nairobi, 19 December 2011.

'*'' Kaye and Lindenmayer, A Choice for Peace?"5 On multiple negotiation tracks to begin with, see Khadiagala, 'Regionalism and

Conflict Resolution'.


at the time that travel bans would be imposed on those accused of obstruct-ing the mediation."*^

The Annan negotiations took place in the basement of Nairobi'sSerena Hotel. AU observers described the AU mediation as 'an African solu-tion to an African problem'."*^ In practice, however, it relied heavily onWestern threats and pressures, especially from the US. Donors workedtogether closely using a coordinated approach, producing the leveragerequired to move the mediation forward."*^ On 12 February, negotiationsmoved to a retreat in Tsavo West National Park in southeast Kenya, to avoidmedia coverage. This was aided by the imposition of a no-fly zone abovethe area. The final negotiations between Kibaki and Odinga, led byAnnan, who had asked President Jakaya Kikwete of Tanzania and formerPresident Mkapa to join, were held at Harembee House. After five and ahalf hours of intense negotiations, an agreement was reached, and a cere-mony was held later that day, on 28 February, at which Kibaki and Odingasigned the Agreement on the Principles of Partnership of the CoalitionGovernment"*^ The agreement outlined the terms of a power sharingarrangement whereby ethnically aligned elite factions were allocated exec-utive positions in a coalition government. This resulted in the appointmentof a 40-member cabinet, the largest in Kenya's history.^ ^

Monica Juma argues that the fact that the three mediators were Africanprevented resistance to the mediation process that may have resulted froman association with Western or other external forces, by ensuring that theprocess was seen as African-led and multilateral.^' Yet it was clear to allinvolved that although an AU mediation in name, real pressure was comingfrom the donors, the US and European states. Wycliffe Muga argues that'[i]t is a delicate situation where you need the African Union as the officialface of the negotiations but the real muscle is elsewhere.'^ ^ Much of themediation's success depended on Kofi Annan, who was seen as having thelegitimacy required to be trusted by all sides. Annan was primarily associ-ated with the UN, but the fact that the AU played a role was seen as addinglegitimacy. Of symbolic significance in this regard is that the AU never

*^ Kaye and Undenmayer, A Choice for Peace?*'' Khadiagala, 'Regionalism and Conflict Resolution', p. 179.'8 Ibid.''^ Kaye and Lindenmayer, A Choice for Peace?5 See Kagwanja and Southall, 'Introduction'.5' Juma, 'African Mediation of the Kenyan Post-2007 Election Crisis'.52 Wycliffe Muga, interview held in Nairobi, 13 December 2011.

2o6 N. Crossley / Global ResponsibiUty to Protects (2013) 192-214

invited Annan to report back at its summit. The AU failed to celebrate theKenyan success-story as a precedent and building block for its own conflictresolution mechanism, precisely because of Annan's association with theUN rather than the AU.^ ^

Prevention Without Coercion: The UN and Foreign Donors

After the power-sharing agreement had been reached and initial assess-ments began to be made, the prevailing view was that for once, interna-tional pressure had been unified and actions had been taken in acoordinated way. The reaction of donors to the Kenyan crisis was regardedas much improved in comparison to similar instances of political violencein the past. Often, donors work with authoritarian governments for eco-nomic or strategic reasons, avoiding the use of conditionality to promotedmocratisation.^ In breaking with past approaches to contested elec-tions, where donors had traditionally endorsed unfair election results,donors put pressure on Kibaki to acknowledge that the election resultswere disputable.^^

In 2006-07, the top five donors were the United States (27% of the total,amounting to $304 million per year); the United Kingdom (12%, $133 mil-lion); the European Commission (10%, $115 million); Japan (10%, $113 mil-lion); and World Bank / IDA (10%, $111 million).^^ In the aftermath of the2007 elections several ambassadors, amongst them the German, Dutch,American, and British ambassadors, attempted to prevent the announce-ment of the election results to allow for a recount. The only Western statethat offered its congratulations to Kibaki after the results had beenannounced was the US, but the US soon changed its position. The World

^ Interview with anonymous, Nairobi, 19 December 2011.^ Conditionality is often imposed on countries in Sub-Saharan Afi-ica, where many

countries are heavily dependent on aid, and where wealthier states have fewer economicand strategic interests. Stephen Brown, 'From Demiurge to Midwife: Changing Donor Rolesin Kenya's Dmocratisation Process', in Goodwin R. Murunga and Shadrack W. Nasong'o(eds.), Kenya: The Struggle for Democracy (Dakar Codesria Books, 2007).

^^ Stephen Brown, 'Donor Responses to the 2008 Kenyan Crisis: Finally Getting It Right?',in Peter Kagwanja and Roger Southall (eds.), Kenya's Uncertain Democracy: The ElectoralCrisis of 2008 (London and New York: Routledge, 2010).

^^ Organisation for Economic Co-Operation and Development, 'Aid Statistics, RecipientAid Charts: Kenya', http://www.oecd.org;dataoecd/62/54/i877992.gif, see Brown, 'DonorResponses to the 2008 Kenyan Crisis', fri 2.

N. Crossiey / Giobai Responsibiiity to Protect 5 (2013) 192-214 207

Bank appears to have been inclined towards an endorsement of Kibaki'sproclaimed victory, as a confidential internal memo by the World Bank'srepresentative in Kenya, Colin Bruce, to headquarters in Washingtonsuggested.^ ^ The EU played an important role at this juncture: it had sentelections observers who were not willing to sign off on an election they sawas flawed.^^

Adam Wood, the British High Commissioner, met ECK chair SamuelKivuitu twice to urge him to conduct an investigation before declaring theoutcome,^^ and the United Kingdom was the first to suggest a power shar-ing arrangement. Prime Minister Gordon Brown called both Kibaki andOdinga on 31 December, urging them to begin negotiations for a coalitiongovernment. On 3 January the US sent Assistant Secretary of State forAfrican Affairs, Jendayi Frazer, to Kenya to meet Kibaki and Odinga in sup-port of initial mediation efforts byjohn Kuflior, chair of the African Union.^

A group of 'like-minded donors' subsequently supported the Annanmediation.^' Donors were constantly in contact with Annan, coordinatingtheir strategy.^ 2 PNU officials were hesitant to cede ground in the negotia-tions, as they were in the position of de facto government and not inclinedto give way, although they were under pressure as members of Kibaki'sethnic group, the Kikuyu, were being targeted in the violence. In mid-January, 14 donors, including the US, issued a statement warning that theirforeign aid was under review as a consequence of the violence, and thata greater proportion of aid might be channelled through NGOs and theprivate sector.^ ^ Pressure was increased further through travel bans onsenior political figures from both parties.^ Early in February, the USembassy stated that the visa status of 13 Kenyan politicians and business-men was under review as a result of their suspected involvement in theviolence. Secretary of State Condoleeza Rice visited Nairobi on 18 February,and soon after raised the possibility of further punitive steps if the nego-tiations failed to make progress. Finally, late in February, the PNU and

" Anonymous , Financial Times, 10 January 2008.58 Wycliffe Muga, interview held in Nairobi, 13 December 2011.53 Brown, 'Donor Responses to the 2008 Kenyan Crisis'.60 Ibid.6' The group was initially m a d e u p of 7-8 m e m b e r s bu t has subsequent ly grown to a

n u m b e r of 18, including the US, the UK, Canada, the Netherlands, and Norway. Interviewwith anonymous , Nairobi, 19 December 2011.

62 Brown, 'Donor Responses to the 2008 Kenyan Crisis'.63 Anonymous , New York Times, 17 January 2008.6" Brown, 'Donor Responses to the 2008 Kenyan Crisis'.

2o8 N. Crossley / Global Responsibility to Protect5 (2013) 192-214

ODM signed the National Accord in which a power sharing arrangementwas agreed upon.

One of the reasons why international pressure on political actors waspersistent and sustained may have been that Kenya acts as an importantmultilateral station. It hosts UN headquarters and several agencies, withmore than 1,000 international staff and 3,000 national staff. Kenya's stabil-ity, therefore, is of great importance to the UN and other internationalactors. Kenya is also a logistical hub for humanitarian support in theregion. Many internationally coordinated assistance programmes directedtowards the Greater Horn of Africa are coordinated from Nairobi.^Although the ODM side was more welcoming of the mediation than thePNU side, in Kenya the overall attitude towards international efforts werepositive, and the Kenyan public was overwhelmingly supportive of Annan'sinitiative. Laetitia Van den Assum, then Dutch Ambassador to Kenyarecounts how, amidst rumours that Annan was leaving, a supermarketcashier had grabbed her hand and said 'please don't let Kofi Annan leave usin this mess.'^

In terms of outcome, the international effort to resolve the Kenyan crisiscertainly differed greatly from other conflict prevention or mitigationefforts elsewhere. Yet, there were a number of factors which meant that thiscase was one in which a positive outcome was more likely: Kenyan foreignpolicy is traditionally pro-Western, which makes for a different environ-ment for foreign - and to a large extent Western - intervention efforts.Anti-colonial rhetoric was limited and originating mainly from thepro-PNU elite.^ Kenya is hospitable to foreign investors and dependent oneconomic assistance, which means that there is a strong relationship ofmutual dependency, which both donors and the recipient, in this case theKenyan government, could not aftbrd to allow to deteriorate. Kenya is also

66 Juma, 'African Mediation of the Kenyan Post-2007 Election Crisis'.66 Makumi Mwagiru, Director of the Institute of Diplomacy and Intemationai Studies at

the University of Nairobi, interview in Nairobi, 19 December 2011.6' Lillian Aluanga, 'Dutch Envoy Loved Kenya', http://m.standardmedia.co.ke/headlines

.php?id=2ooao39o85, accessed 24 March 2012.68 An article in the Nairobi Star criticised Gordon Brown for his choice of tone. 'He com-

manded them to "behave responsibly" and used such language as "what 1 want to see is..."and "only by working together can we make progress.'^ He said he would be talking to thevarious parties for all the world as if Kenya was still a colony.' Simon Jenkins, quoted inMakumi Mwagiru, The Water's Edge: Mediation ofViolent Electoral Conflict in Kenya (Nairobi:Institute of Diplomacy and Intemationai Studies, 2008), p. 21. Beth Mugo, MP elect forDagoretti, accused the US of applying double standards for Kenya and of attempting to runKenya's electoral affairs, ibid., p. 69.


a popular tourist destination; gives preferential treatment to multinationalcorporations; and has promoted its capital as a centre of affairs for both theregion and the world.^ ^ Finally, Kenya is an important ally in the 'war onterror', due to its proximity to Somalia, and especially given that al-Qaidahas committed attacks in Kenya, such as on the US embassy in 1998.''

Gilbert Khadiagala has argued that it was precisely for these reasonsthat intervention worked in Kenya, where there was a 'convergence of cir-cumstances that seem unique to the Kenyan context'. It was much more aquestion of technical skill in negotiating and diplomacy, than about analtogether different or novel approach to intervention. 'The Annan team'seffectiveness as interlocutors inhered more in its ability to manage theintricate balance between international pressure and a local context inwhich the parties gradually learnt the importance of accommodating eachother.'^'Kenyanjournalist Wycliffe Muga concludes that'[o]nce it becameclear that we stand to lose everything, they were going to find a way to worktogether.'^ ^

Democracy Consolidation and Criminaljustice: Kenya after the PeaceAgreement

Criminal justice has relevance for R2P both in terms of its preventativedimension, as well as for post-conflict peacebuilding. In terms of its preven-tative dimension, the Secretary-General's 2009 report on implementingR2P states that:

If undertaken early in a crisis, at the first sign that a State is failing to meet itsobligations relating to the responsibility to protect,... on-site missions can alsoprovide opportunities for delivering messages directly to key decision makerson behalf of the larger intemational community, for example, by trying to dis-suade them from destructive courses of action that could make them subjectto prosecution by the Intemational Criminal Court or ad hoc tribunals.'^

^^ For a summary of factors that facilitated the summoning of intemational actors on theone hand, and that meant that Kenya was comparatively welcoming of foreign involvementon the other, see Norman Miller and Rodger Yeager, Kenya: The Questfor Prosperity (1994)1pp. 161-180..

Brown, 'Donor Responses to the 2008 Kenyan Crisis'." Khadiagala, 'Regionalism and Conflict Resolution', p. 182.72 Wycliffe Muga, interview held in Nairobi, 13 December 2011.'3 Ban Ki-Moon, Implementing the Responsibility to Protect: Report of the Secretary-

General, AI6$I677,12 January 2009, p. 23.


In the Kenyan case, the ICC threat appeared not to have a significantinfluence until much later, when the Waki Commission decided that if theprosecution of crimes domestically was unsuccessful, Annan was to referthe case to the ICC. On 5 November 2009, the prosecutor of the ICC madeknown his intention to begin an investigation into the situation in Kenya.On 31 March 2010, Pre-trial Chamber II of the court stated that it had autho-rised the prosecutor to commence an investigation into alleged crimesagainst humanity in the run-up and aftermath of the presidential electionsin Kenya in 2007.''"* Later that year, on 15 December 2010, the prosecutorfiled applications to summon six Kenyan nationals in relation to the post-election violence: William Samoei Ruto (ODM), Henry Kiprono Kosgey(ODM), Joshua Arap Sang (ODM), Francis Kirimi Muthaura (PNU), UhuruMuigai Kenyatta (PNU), and Mohamed Hussein Ali (PNU).''^ Early in 2012,ICC judges declared charges would not be confirmed for Kosgey and Ali,but confirmed charges for Kenyatta, Muthaura, Ruto, and Sang.

Since late in 2010, Kenya has been pursuing a deferral of the ICC pro-ceedings, in the form of a decision by the Security Council, which underArticle 16 of the Rome Statute allows the Council to make use of chapter VIIto defer an ICC investigation or prosecution for 12 months. The Assembly ofthe AU decided to endorse Kenya's position on 31 January 2011.^ In an infor-mal, interactive dialogue between the permanent representative of Kenyaand Security Council members on 18 March 2011, which was also attendedby AU representatives, Kenya argued that a deferral by 12 months wouldgive Kenyan authorities sufficient time to establish alternative domesticadjudicative mechanisms. Council members mostly agreed, however, thatthe situation in Kenya does not amount to a threat to international peaceand security, and that it would therefore be preferable for Kenya to chal-lenge the admissibility of the case at the ICC directly, under Article 19 of theRome Statute. Kenya filed an application before the ICC on 31 March 2011under Article 19 of the Rome statute, arguing that the new constitutionand judicial reforms allowed for a proper investigation into alleged post-election crimes.^^

Although the joint efforts to end the crisis managed to put a swift end tothe violence, they may have done so at the expense of justice, at least in the

''* Security Council Report, Update Report: Kenya and the ICC.'5 Intemational Criminal Court, 'Kenya's Post Election Violence: ICC Prosecutor Presents

Cases against Six Individuals for Crimes against Humanit/, http://www.icc-cpi.int/NR/

Assembly/AU/Dec/334(XVl), 2011Security Council Report, Update Report: Kenya and the ICC.

N. Crossley / Global ResponsibiUty to Protect s (2013) 192-214 211

short-term, compromising the political reform agenda, and failing toaddress issues that may pose a risk for Kenya in the ftiture.''^ Three years on,the Kenyan government has still voiced its concern at ICC proceedings onthe post-election violence. In a letter to the UN Secretary-General andPresident of the Security Council, the Kenyan government stated that thenaming of six individuals by the Prosecutor of the International CriminalCourt was premature and resulted in the slow-down of the implementationof the new constitution and the reform process, and 'interfered with thedelicate political climate'.''^ The letter also stated that the ICC proceedingscould potentially 'reignite violence, cause a breakdown of law and orderand result in loss of human life in Kenya and the disruption of economic,peace and security activities in the fragile and volatile subregion...' Theletter goes on to explain that this is the reason why the AU has taken thedecision to request a deferral under article 16 of the Rome Statute.^^The general public, however, had a positive attitude towards ICC proceed-ings, and a common slogan was 'Don't be fake, let's go to the Hague.'^ ' Anopinion poll taken after ICC Judges made their decision to send fourKenyans to trial found that amongst Kenyans, 60 per cent were either verysatisfied or somewhat satisfied about this.^ ^

In terms of democracy consolidation, structural issues such as a reformof the electoral commission have been tackled - the ECK, to which Kibakihad unilaterally appointed members perceived as biased towards him bythe commission has meanwhile been replaced with the IndependentElectoral and Boundaries Commission (IEBC), which has been appointedthrough a competitive process and has been approved by parliament. TheJudiciary has been overhauled as well, and the constitution of 2010 broughtreforms intending to ensure the neutrality of the security sector. Thesereforms were meant to address some of the institutional weaknessesthat contributed to the post-election violence. The new constitution also

'8 Brown, 'Donor Responses to the 2008 Kenyan Crisis'.'^ A new constitution accepted in 2010 by a national referendum is in line with the prin-

ciple of complementarity of the Rome Statute, and facilitates the establishment of legal andJudicial mechanisms necessary for the investigation and prosecution of suspected perpetra-tors of the violence following the elections in 2007.

80 S/20U/116,4 March 20U.8' Adams Oloo, Lecturer, Department of Political Science at the University of Nairobi,

interview held in Nairobi, 21 December 2011.82 Tom Maliti, 'Majority of Kenyans Happy with ICC Judges' Decisions, Saying Justice

Will Be Done', http://www.icckenya.org/2012/02/majority-of-kenyans-happy-with-icc-Judges-decisions-saying-Justice-will-be-done/, accessed 24 March 2012.

212 N. Crossiey / Giobai Responsibiiity to Protects {2013) 192-214

Stipulates a precise timeframe for the swearing in of the presidentafter elections - a hurried swearing in as had been the case in the previouselections should thus be avoided. According to the new constitution, onceelection results have been announced petitions are possible for 7 days, dur-ing which time the president may not be sworn in. The Supreme Court has14 days to determine the outcome of a petition, and, once settled, another7 days must pass before the president may be sworn in. This mechanism isdesigned to avoid a repetition of the confusion surrounding the elections

Conclusion: The Narrative of the Kenyan Case as a Model Case of 'Prevention'

The outbreak of violence following the 2007 elections certainly qualified asa case in which the 'R2P threshold' had been met - for 'R2P prevention' atthe very least. A significant number of people had died in a short period oftime, with evidence of systematic, pre-planned ethnic violence, its formworryingly reminiscent ofthat seen in Rwanda a decade earlier. The num-ber of displaced people soared and the economy threatened to collapse -Kenya's descent into civil war, at that point, was not just an abstractscenario, but a real possibility. Indeed, an argument could be made thatactually, the opportunity for true 'prevention' had already been missed.^ '* Inany case, the situation was one in which national authorities were already'manifestly failing' to protect their population.

A number of international and local actors directly involved in themediation invoked R2P at the time: Bernard Kouchner, French foreign min-ister at the time, referred to R2P in January,^^ and Francis Deng, then UN

83 Adams Oloo, interview held in Nairobi, 21 December 2011.8' Serena Sharma, 'The Responsibility to Prevent: Lessons from Kenya's Post

Electoral Crisis', http://www.thebrokeronline.eu/Blogs/The-Responsibility-to-Protect/The-Responsibility-to-Prevent-Lessons-from-Kenya-s-post-electoral-crisis.

5^ In January 2008, as the crisis was ongoing, French Foreign and European AffairsMinister Bernard Kouchner stated that a swift, political solution was needed, and thatFrance supported the efforts of Kofi Annan's mediation team with the support of the AU andUN. 'In the name of the responsibility to protect, it is urgent to help the people of Kenya. TheUnited Nations Security Council must take up this question and act.' International Coalitionfor the Responsibility to Protect, "Violence in Kenya: Statement Made by French Foreign andEuropean Affairs Minister Bernard Kouchner', http://www.responsibilitytoprotect.org/index.php/component/content/article/i29-africa/i5oi-violence-in-kenya-statement-made-by-frencfi-foreign-and-euorpean-aftairs-minister-bernard-kouchner, accessed


Special Adviser on the Prevention of Genocide, urged political leaders to'meet their responsibility to protect'.^ In February 2008, towards the end ofthe mediation process, Desmond Tutu stated 'I believe what we are seeingin Kenya is action on a fundamental principle - the Responsibility toProtect'*^ Chief mediator Kofi Annan had been one of the driving forcesbehind advocacy efforts to promote R2P's international recognition and thehistory of thought that led to the formulation of R2P at the turn of the mil-lennium.88 Kofi Annan said after the crisis that he had seen 'the crisis in theR2P prism with a Kenyan government unable to contain the situation orprotect its people' and that Kenya was 'a successful example of R2P atwork'.^ ^ Annan said "When we talk of intervention, people think of the mili-tary.' He went on to say 'But under R2P, force is a last resort Political anddiplomatic intervention is the first mechanism. And I think we've seen asuccessful example of its application.'^"

Yet, the question remains as to what role the R2P rhetoric actually playedin the conflict mitigation efforts. An assessment of this question must rec-ognise the unique, favourable context within which response measureswere taken in Kenya - the shared and common interest in seeing the crisisresolved swiftly and without further bloodshed and dstabilisation. In theKenyan case, all sides, including both the PNU and ODM, agreed that noone stood to gain from a Kenyan descent into civil war - intervention in anenvironment in which actors have strong political, economic, strategic, orideological interests, and are pitted against each other, is much moredifficult.

Consequently, it appears that the converging interests around a power-sharing agreement, rather than the emergence of R2P, offers a betterexplanation of why mediation efforts and the overall strategy of conflict

21 August 2011. The original, in French, read 'Au nom de la responsabilit de protger, il esturgent de venir en aide aux populations du Kenya' - interestingly, Kouchner did not use'droit d'ingrence', but instead referred explicitly to the Responsibility to Protect. SeeFrance Diplomatie, 'Situation Au Kenya: Declaration De M. Bemard Kouchner', http://www.diplomatie.gouv.fr/fr/pays-zones-geo_833/kenya_372/presentation-du-kenya_983/situation-au-kenya-20o8_i83i7/m.-kouchner-violences-au-kenya-3i.oi.o8_59O45.html,accessed 22 August 2011.

*6 United Nations Department of Public Information, The United Nations and Kenya:Briefing Note, 2008.

*' Desmond Tutu, 'Taking the Responsibility to Protect', Spiegei Online, 20 Febmary 2008.*8 For his contribution to the debate on a modem approach to state sovereignty, see Kofi

Annan, "Two Concepts of Sovereignty, The Economist, 18 (1999).* Roger Cohen, 'How Kofi Annan Rescued Kenya', The New York Review of Books.^ Roger Gohen, 'African Genocide Averted', The New York Times, 3 March 2008.

214 ^- Crossley /Global ResponsibiUty to Protect 5 (2013) 192-214

mitigation on the part of the donors proved successful in the Kenyan case;the mediation success owed more to the particularity of the Kenyan casethan the ability of R2P to change the political realities on the ground.Without much doubt the mediation would have taken place regardless ofthe existence or application of R2P. Political mediation has a long history,and one that has, traditionally, not been conflated with the intellectualhistory surroundingjust War Theory, to which the post-Cold War notion ofhumanitarian intervention is linked. Mediation would have taken place inKenya anyway - this was not a result ofthe ideas surrounding R2P dominat-ing the debate in policy circles in New York.

The success ofthe mediation in Kenya did, however, lend itself well tocontinued efforts to promote R2P internationally. The branding of Kenya asan I2P success helped make the concept seem less threatening and corro-sive of state sovereignty, especially at a time when many states were recon-sidering their views about R2P. The application of R2P to the mediation inKenya made the Kenyan success-story a valuable example for R2P advo-cates keen to establish R2P's credibility as a non-coercive, preventativepolicy.

Certain forms of interference have come to be regarded as more legiti-mate than others today. A reformed understanding of state sovereignty,what constitutes it, its conditionality, and its relationship to universal rightscomes to bear on international norms. Although this says little about actualpractice, this does shape perceptions about the legitimacy of actions, or, inKofi Annan's words, 'gives nations and peoples a yardstick - a standard bywhich they can hold their government to account'^' R2P promotes the ideathat interested parties ought to cooperate multilaterally, through interna-tional institutions; and that regional organisations ought to function notonly as one of several pillars, but as the primary locus of conflict resolutionefforts. A legitimate response is one that, as in the case of Kenya, givespreference to non-coercive, non-violent measures, and to an incremental,prudent, and generally less intrusive approach to intervention.

s' Kofi Annan and Nader Mousavizadeh, Interventions: A Life in War and Peace (London:Allen Lane, 2012), p. 132.

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