|Enhancing Protection Capacity: Policy Guide to the Responsibility to Protect and the Protection of Civilians in Armed Conflicts|
From 2011-12, I was part of a research team investigating the relationship between two international protection norms: the Responsibility to Protect (R2P) and the Protection of Civilians (POC). In this blogpost, I reflect on a few recent developments on this topic.
(My thoughts here are my own, and not necessarily those of the larger research team. These thoughts do, however, follow from several co-authored news articles (with Professors Ramesh Thakur and Charles Sampford), most recently in the Canberra Times.)
A primer: R2P and POC
In brief, R2P is a commitment to stop atrocities: genocide, ethnic cleansing, war crimes and crimes against humanity. R2P was formed in response to two events—the genocide in Rwanda in 1994 where there was little effective international action, and NATO’s military action with respect to Kosovo in 1999, where there was military intervention, but the action occurred without Security Council authorization, and therefore seemingly in violation of international law. The intention behind the development of R2P was to create a norm that could ensure that the international community could respond to looming atrocities—but also that such responses were made consistent with international law. R2P has three parts (three ‘pillars’ as the Secretary-General terms them): 1) States have a responsibility to protect their own populations from atrocity crimes. 2) The international community should work consensually with states to help them build the capacity to protect their populations. 3) In the event that the state is manifestly failing to protect its population, the international community through the United Nations Security Council has a backup responsibility to protect the population. R2P was unanimously accepted by the UN General Assembly in 2005, and then ‘reaffirmed’ by the Security Council in 2006 in Resolution 1674.
For its part, POC began as that part of the laws of war (International Humanitarian Law, including the Geneva Conventions of 1949 and the Additional Protocols of 1977) that aimed to protect non-combatants from the more egregious harms to which armed conflict exposes them. In this form POC is a matter of law. Over the last couple of decades however, POC has become more than restrictions on combatant actions and tactics. The norm that the unarmed should be protected from widespread, lawless, brutal violence informs the actions and decisions of the Security Council, of peacekeepers and of humanitarian agencies. POC can also become a part of military doctrine when the objectives are to save civilians from other combatants.
Given their different origins, each principle is evaluated rather differently. Formed in the crucible of Rwanda and Kosovo, R2P is inherently controversial. It directly confronts state sovereignty and allows (indeed, it morally obliges) the international community to act with coercive force against states if necessary to protect populations. After R2P’s acceptance by the UN in 2005 and 2006, many nations became increasingly concerned about its capacity for being a vehicle for neo-colonialism and regime change. In response, R2P’s consensual aspects were emphasized by its proponents. R2P was not merely about military responses, it was propounded, but also about preventive action and support to states that wanted to protect their populations but were unable to do so. In short, R2P began its existence as highly controversial, and has tried (with mixed success) to journey away from those beginnings to a less contentious status.
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In a sense, POC has taken the reverse journey. As a part of the laws of war, formed both through treaty and customary law, POC is utterly uncontroversial. To be sure, states and non-state insurgencies regularly violate the laws of war and target civilians. But they almost always deny that they are doing this, and pay at least lip service to the importance of POC. No state is willing to stand up and reject POC as a whole—to do so in the current international context would be reputational suicide. But POC increasingly involves more than the mere application of international law. It has become a policy commitment (unevenly applied, to be sure) by the UN Security Council, and since 1999 a positive call for peacekeepers to where possible protect civilians from armed actors. While there are real humanitarian gains from these practices, these shifts in POC create controversy, because they open the possibility of international force being used against state or state-sponsored actors, and of peacekeeping forces effectively becoming a ‘third belligerent’ to armed conflicts.
What then, of the relationship between R2P and POC?
Several months before our research team released its Policy Guide, the Secretary-General put out his 2012 Report to the Security Council on POC. In its Operative Paragraph 21 the Secretary-General squarely confronted the question of the relationship between R2P and POC. He drew a stark distinction between the two norms, asserting that POC was a ‘legal concept’ and R2P a ‘political concept’ and declaring that POC only applies in armed conflict.
Our research and our Policy Guide disagreed with both these declarations. Why? For two reasons. One, they are demonstrably incorrect. Two, they are unhelpful to the cause of protecting civilians.
First, their inaccuracy. To be sure, POC was initially a legal concept, defined by International Humanitarian Law. But it has since grown beyond this to a policy framework, guiding the Security Council, peacekeepers, humanitarians and the international community more generally. The commitment to positively protect civilians taken on by each of these actors is not a legal concept. None of these actors are legally obliged to protect civilians, except perhaps in very, very rare situations. To say POC is based on a legal concept is fair enough, so far as it goes. But to say it is a legal concept, as if peacekeepers and the Council are directly bound by law to protect civilians, is false and misleading.
The characterization of R2P as a ‘political concept’ is also flawed. Some aspects of R2P are straightforward law; the duties states have not to perpetrate atrocities are plainly legal ones. States also have some legal duties not to be complicit in genocide occurring in other countries, as the ICJ determined in the Bosnia Genocide Case. Asserting R2P to be a ‘political concept’, while appropriately acknowledging R2P's politicized aspects, risks distracting attention from its legal elements and its larger basis in international law.
Similarly, the assertion that POC applies only to armed conflicts is mistaken—if by armed conflict we mean ‘armed conflict’ in the sense determined by international law. The types of cases the Secretary-General himself sees as POC concerns in his reports often range beyond armed conflicts in the legal sense of that phrase. So too the Council and peacekeepers are not obliged to make sophisticated legal judgements about the lawful status of a situation before they protect civilians. If there is widespread, lawless, brutal, systematic violence occurring from the armed towards the unarmed, then that is sufficient to make the protection of civilians an international concern, even if (especially if) the violence is entirely one-sided and so not an armed conflict in the strict sense. To be sure, POC does not apply in peacetime. A totalitarian government repressing its citizens is a human rights concern, but it is not a POC issue. But concerns about POC do not have to wait for the victimised group to arm itself and fight back in order to create an armed conflict proper.
Second, the Secretary-General’s assertion is unhelpful to the cause of protecting civilians. The main worry here is that asserting that POC is a purely legal concept, and restricting it to exclusively armed conflicts, risks rolling back many of the POC policies and reforms that have happened in the last two decades. POC expanded beyond the strict requirements of international law precisely because civilians—in Bosnia, Rwanda, Kosovo, the DRC and elsewhere—needed positive protection. It seemed unconscionable to do nothing in the face of preventable atrocities, especially when they occurred before the eyes of peacekeepers. To assert that POC is a legal concept opens the alarming possibility that POC might be returned to its earlier status as no more than that. If this were to happen, POC would no longer be a humanitarian norm motivating peacekeepers and the Council to positive action.
It is already possible to see movement in this direction occurring. After the Secretary-General’s assertions in his 2012 Report, Pakistan was gifted the opportunity of pointing out that some of the cases discussed in the Report were not, strictly speaking, armed conflicts. Pakistan was of course correct in this assessment. Indeed, it would apply to every single one of the Secretary-General’s Reports since they began in 1999. And it would also apply to much of the Security Council’s action and discussion with respect to POC. Libya in its early stages was not an armed conflict, yet was a POC issue for the Security Council. Similarly Syria in 2011 was not legally an armed conflict (it did not attain this status until early-mid 2012) yet was a clear object of the Council’s POC discussion and concern—though not, of course, action. If POC is to continue to function as a robust policy framework for responding to widespread, lawless, brutal armed violence, then the international community needs to squarely assert—as many states have done in the Council Open Debates—that protecting civilians is important both inside and outside armed conflicts. And, as a corollary, they should assert that while POC is of course based on law, it extends beyond strict legal requirements to include policy frameworks and practices that are moral, but not legal, imperatives. Armed actors summarily attacking unarmed populations always constitutes a violation of international law (whether the laws of war, human rights law or international criminal law). But the international community’s positive efforts to protect those civilians extend—and must extend—beyond narrow legal requirements.
If this is right, then it opens the question: Why did the Secretary-General make this assertion in the first place? After all, Secretary-General Ban Ki-Moon has been a great supporter of the United Nation’s attempts to protect civilians. Why would he make any assertion liable to roll back reforms he himself has achieved? The answer, I think, is that the intention was simply to try and make POC appear less controversial. Especially in the wake of the regime-change in Libya, and also the use of French military assets in Côte D’Ivoire to protect civilians, there was increased suspicion about POC and substantial pushback against what had previously been widely accepted POC inclusions in Security Council resolutions and peacekeeping mandates. The wish to make POC more acceptable drove the drafters of the Secretary-General’s report to present a bright-line distinction between R2P (controversial/political) and POC (acceptable/legal). While the drafters’ intentions were no doubt laudable, however, the result was unhelpful.
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What does the future hold?
Following the Secretary-General’s report, in the 2012 Open Debate on POC, the ‘Group of Friends on POC’ (and some member-states as well) used the Secretary-General’s ‘legal concept’ language. Representing fifteen UN member-states, with three current members of the Security Council, the Group stated: “In our endeavor to re-establish confidence, it is of the utmost importance to reaffirm the basic tenets of the protection of civilians as a legal concept based on international humanitarian law, human rights refugee law and international criminal law.”
It was in the context that our research team launched the Policy Guide, and presented our findings to delegations at the United Nations in New York in November 2012.
In the 2013 Open Debate last month (February), several states repeated their endorsement of the Secretary-General’s distinction in general terms. Importantly however, the Group of Friends no longer used the ‘legal concept’ wording, and nor did any member-state. Nor did the resulting Presidential Statement make any such claim.
If what I have argued above is correct, this is a positive shift. As our Policy Guide argued in some depth, and as I have sketched here, the ‘legal concept’ view is an inaccurate description of POC’s role at the United Nations, and it would be a catastrophe for vulnerable civilians worldwide if POC was to be scaled back to its bare legal minimum.
Later in 2013 the Secretary-General will produce his next POC Report. It is to be hoped that his previous declaration of the distinction between R2P and POC will not be repeated, and will be allowed to drift into disuse. Similarly, it is to be hoped that the next Security Council resolution on POC (there has not been one since the Secretary-General’s 2012 Report) does not endorse the ‘legal concept/political concept’ distinction.
Security Council resolutions carry serious and sometimes far-reaching consequences, and every word matters. It could prove a serious setback to subsequent protection efforts if the Council unwittingly entrenched a concept of POC that is an inaccurate and enervated characterization of its current substance. While it is always tempting to make policies and practices seem as uncontroversial as possible, in the context of civilian protection clarity and determination are crucial. There is little point in trying to achieve consensus on POC if that threatens to return the United Nations civilian protection agenda to its status during the dark days of Rwanda and Srebrenica.