03 Sep Kofi Annan’s Legacy in International Law
[Ian Johnstone is the Dean ad interim of the Fletcher School of Law and Diplomacy. This contribution is cross-posted here.]
Tributes to Kofi Annan have poured in since his death on August 18, praising his diplomatic skills, his dignified leadership, and his basic human decency. Having worked with him closely from 1996 to 2000, first in the United Nations Department of Peacekeeping Operations and then the Executive Office of the Secretary-General, I can also testify to his warmth as a human being. He cared for the people the UN is meant to serve, and showed great respect for the people he worked with. I often travelled with him on official business and he treated us all, from the most senior aides to junior support staff, as integral members of his team.
A less well-known feature of his leadership is his impact on international law. Often described as a secular pope, the Secretary-General (SG) has no army at his disposal nor the authority to sanction violators of international law. What the SG does have is the power of persuasion. This power depends on both the diplomatic and advocacy skills of the office-holder and on the office itself – the so-called “bully pulpit.”
Kofi Annan was masterful in his use of the bully pulpit, in part because he understood the distinctive power of international law as a tool of persuasion. The (limited) formal authority of the office and the personal traits of the office-holder will only get you so far. These must be matched by a fine-tuned appreciation of the political and normative context in which international relations are conducted. International law by its very nature embodies a normative consensus among states. As such, it is more powerful as an advocacy tool than say political, social or religious norms. Kofi Annan understood this and used it to advantage. In so-doing, he not only had an impact on the course of events, he also contributed to the development of international law. Three examples illustrate the point.
When NATO intervened in Kosovo in 1999, SG Annan was at the center of debates about the wisdom and legality of the action. Having been head of the Department of Peacekeeping Operations at the time of the Rwanda genocide and Srebrenica massacre, he felt deeply that the UN had a responsibility to stop such atrocities from occurring again. In a speech he made to the General Assembly in 1999, he said “massive and systematic violations of human rights – wherever they take place – cannot be allowed to stand,” launching a global debate that led to the endorsement of the ‘responsibility to protect’ (R2P) at the 2005 World Summit. While the concept of R2P has lost some of its luster since 2005, it still has traction. As a legal matter, the World Summit statement constitutes an authoritative interpretation of Article 39 of the UN Charter – signifying that atrocity crimes in themselves are “threat to the peace” justifying coercive Security Council (SC) action (if the political will can be mustered). As a practical matter, the norm has had a significant impact on UN peace operations, almost all of which now have mandates to protect civilians, by force if necessary.
Kofi Annan was also a central figure in debates leading to and after the US-led intervention in Iraq in 2003. As pressure for war was building in September 2002, he made a double-barreled statement : 1) implying that military action against Iraq had to be authorized by the SC; and 2) that if Iraq continued to defy its obligations, the Council “must face its responsibilities.” The former is a legal opinion; the latter a political judgment. He made the legal claim explicitly in September 2004 (more than a year after the intervention) when pressed by a BBC journalist, stating “I have indicated [the war in Iraq] is not in conformity with the UN Charter…It was illegal.” These public statements did not go down well in Washington D.C., but he made them because he knew that the UN Secretary-General remaining silent would have added to the damage the Iraq intervention did to the rule of law and to the UN. Joining the chorus of those who called the war illegal increased the reputational costs the US and UK paid. The stark contrast between the broad support for intervention in Iraq in 1991 and Afghanistan in 2001 and the lack of support for the 2003 war is evidence of the benefit even powerful states gain from being able to make a persuasive legal case for their actions.
Third, SG Annan made deft use of international law in his quieter diplomatic initiatives. In the height of the violence that followed the vote on independence in East Timor (now Timor Leste) in 1999, he engaged in intensive private and public diplomacy. When private efforts failed to persuade then-Indonesian President Habibie to take steps to quell the violence, Kofi Annan publicly called for an intervention force, adding that those responsible should be held to account for “what could amount to…crimes against humanity.” When he visited Nigeria in July 1998 to seek its help in managing conflicts in West Africa, he took the opportunity to press the government on its own transition to democracy, which was underway haltingly but by no means certain. This was aligned with a larger international effort to promote a right to political pluralism if not a nascent “right to democracy.” His later mediation efforts in Kenya on behalf of the UN and African Union could be seen in the same light.
Kofi Annan was not naïve about the limitations of international law and institutions. From his perch at the UN, he witnessed too much suffering, negotiated with too many dictators (Saddam Hussein, Muammar Al-Qaddafi, Bashir Al-Assad), saw too many peace processes fail, and was buffeted too often by great power politics. But nor was he naïve about the limits of force. The five permanent members of the SC have vast military and economic resources, not to mention the veto power. Yet that is not enough to enable them to bend the rest of the world to their will. Consider their shared interest in combatting terrorism. To do so effectively, they need the buy-in of a wide variety of actors – from fragile states that serve as safe havens, to multinational banks that control the flow of money. To get that buy-in, they need the legitimacy and predictability legal norms can provide.
Kofi Annan knew this. He will be remembered as an enlightened leader, superb diplomat, and a voice for vulnerable populations. He should also be remembered as a champion of international law. He understood that law could not solve all the world’s problems but could be harnessed to help manage some of them. He used it for those purposes and, in so-doing, made it stronger. This could well be the most enduring legacy of his life’s work.