Security Challenges
Volume 7 Number 4 (Summer 2011)
Security Challenges
ISSN 1833 – 1459
EDITORS:
Dr Stephan Frühling and Dr Benjamin Schreer
Managing Editors
editor@kokodafo...
RESPONSIBILITY TO PROTECT AND PROTECTION OF CIVILIANS
Vesselin Popovski
The Concepts of Responsibility to Protect and Prot...
Editors’ Note
Welcome to the Summer 2011 edition of Security Challenges. The recent
Libya intervention has put the future ...
Security Challenges, Vol. 7, No. 4 (Summer 2011), pp. 1-12. - 1 -
The Concepts of Responsibility to
Protect and Protection...
Vesselin Popovski
- 2 -
Protection of Civilians
The origins of PoC in armed conflict can be traced in the history of the
d...
The Concepts of Responsibility to Protect and Protection of Civilians
- 3 -
Secretary-General on Internally Displaced Pers...
Vesselin Popovski
- 4 -
humanity, an R2P framework cannot be activated, and in such a case other
mechanisms—human rights m...
The Concepts of Responsibility to Protect and Protection of Civilians
- 5 -
Council Resolution 1970 (26 February 2011) on ...
Vesselin Popovski
- 6 -
Table 2 (being, as Table 1, also not exhaustive) indicates the similarities and
differences betwee...
The Concepts of Responsibility to Protect and Protection of Civilians
- 7 -
the PoC agenda well. The ‘sister’ concepts, R2...
Vesselin Popovski
- 8 -
Resolution 1970
The Security Council invoked R2P immediately when on 26 February 2011 it
considere...
The Concepts of Responsibility to Protect and Protection of Civilians
- 9 -
new resolution, Security Council Resolution 19...
Vesselin Popovski
- 10 -
machine guns, rocket-propelled grenades and munitions to the Libyan
rebels, could, hypothetically...
The Concepts of Responsibility to Protect and Protection of Civilians
- 11 -
The removal of Gaddafi from power was nowhere...
Vesselin Popovski
- 12 -
Professor Ed Luck, the Special Representative of the UN Secretary-General
on R2P, called the two ...
Ad to be added by
printers
Security Challenges, Vol. 7, No. 4 (Summer 2011), pp. 13-25. - 13 -
Libya and the Responsibility to Protect:
Between Oppor...
Ramesh Thakur
- 14 -
institutional linkages. Instead of collective gnashing and wailing during
atrocities followed by a tr...
Libya and the Responsibility to Protect
- 15 -
of a duty of care by those living in safety towards those trapped in zones ...
Ramesh Thakur
- 16 -
There is no transfer or dilution of the status of state sovereignty. But there is
a necessary change ...
Libya and the Responsibility to Protect
- 17 -
This greatly increases demands and expectations ‘to do something’ and the
f...
Ramesh Thakur
- 18 -
there will be nothing to stop the powerful from intervening ‘anywhere and
everywhere’.
Gaddafi in the...
Libya and the Responsibility to Protect
- 19 -
Criminal Court (Resolution 1970).
17
On 4 March, both the Global Centre and...
Ramesh Thakur
- 20 -
prohibited. Gaddafi was not to be directly targeted. To the extent that he
was so targeted, NATO exce...
Libya and the Responsibility to Protect
- 21 -
leaders, cities and regions alley by alley, house by house, room by room.
H...
Ramesh Thakur
- 22 -
individual states”.
27
Russia and China led the chorus of dismay at the UN
appearing to take sides in...
Libya and the Responsibility to Protect
- 23 -
is the only way to achieve the human protection goals, then so be it”.
32
I...
Ramesh Thakur
- 24 -
National Council’s immediate priorities are to establish security, law and
order; prevent lootings an...
Libya and the Responsibility to Protect
- 25 -
Failures in Africa and the Balkans in the 1990s reflected structural, polit...
- 26 -
Security Challenges, Vol. 7, No. 4 (Summer 2011), pp. 27-38. - 27 -
The Protection of Civilians in UN
Peacekeeping Operati...
Michael G. Smith, Jeni Whalan and Peter Thomson
- 28 -
“[i]t has probably become more dangerous to be a woman than a soldi...
The Protection of Civilians in UN Peacekeeping Operations: Recent Developments
- 29 -
progress at the institutional level,...
Michael G. Smith, Jeni Whalan and Peter Thomson
- 30 -
As it exists in debates before the Security Council, and as it will...
The Protection of Civilians in UN Peacekeeping Operations: Recent Developments
- 31 -
these operations were charged with m...
Michael G. Smith, Jeni Whalan and Peter Thomson
- 32 -
the tragedy of Rwanda. In October 1995, DPKO released its ‘General
...
The Protection of Civilians in UN Peacekeeping Operations: Recent Developments
- 33 -
and it stressed the need for peaceke...
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Security Challenges Volume 7 Number 4 (Summer 2011)
Upcoming SlideShare
Loading in …5
×

Security Challenges Volume 7 Number 4 (Summer 2011)

2,102 views
2,027 views

Published on

Published in: Technology, News & Politics
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
2,102
On SlideShare
0
From Embeds
0
Number of Embeds
1
Actions
Shares
0
Downloads
13
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

Security Challenges Volume 7 Number 4 (Summer 2011)

  1. 1. Security Challenges Volume 7 Number 4 (Summer 2011)
  2. 2. Security Challenges ISSN 1833 – 1459 EDITORS: Dr Stephan Frühling and Dr Benjamin Schreer Managing Editors editor@kokodafoundation.org Robert Wylie Geoff Hunt Consulting Editor Defence Industry Policy Production Editor r.wylie@adfa.edu.au wamboolhunt@yahoo.com.au EDITORIAL BOARD: Robert Ayson Victoria University Wellington, New Zealand Ross Babbage The Kokoda Foundation Canberra, Australia Sam Bateman University of Wollongong Wollongong, Australia Leszek Buszynski International University of Japan, Tokyo, Japan Eliot Cohen John Hopkins University, Washington, DC, USA Ralph Cossa Pacific Forum CSIS Honolulu, Hawaii, USA Bates Gill Stockholm International Peace Research Institute, Stockholm, Sweden Gerald Hensley Former Secretary of Defence New Zealand Rod Lyon ASPI Canberra, Australia Andrew Mack Simon Fraser University Vancouver, Canada Rizal Sukma Centre for Strategic and International Studies Jakarta, Indonesia Ramesh Thakur Asia-Pacific College of Diplomacy, Australian National University Canberra, Australia William Tow Department of International Relations, Australian National University Canberra, Australia Akio Watanabe Research Institute for Peace and Security Tokyo, Japan Project Management and Cover: Qote Canberra (02) 6162 1258 Published and distributed by: The Kokoda Foundation 2/10 Kennedy St (PO Box 4060), Kingston ACT 2604 T: (02) 6295 1555 F: (02) 6169 3019 E: manager@kokodafoundation.org W: www.securitychallenges.org.au © The Kokoda Foundation. All rights reserved. Apart from any fair dealing for the purposes of private study, research, criticism or review as permitted by the Copyright Act, no part of this publication may be reproduced, stored, transmitted or disseminated in any form or by any means without prior written permission. Inquiries should be made to the publisher. All articles published in Security Challenges are fully peer-reviewed. Any opinions and views expressed are those of the authors, and do not necessarily reflect the opinion of the Kokoda Foundation or the editors of Security Challenges.
  3. 3. RESPONSIBILITY TO PROTECT AND PROTECTION OF CIVILIANS Vesselin Popovski The Concepts of Responsibility to Protect and Protection of Civilians: ‘Sisters, but not Twins’ ......................................................................................... 1 Ramesh Thakur Libya and the Responsibility to Protect: Between Opportunistic Humanitarianism and Value-Free Pragmatism................ 13 Michael G. Smith, Jeni Whalan and Peter Thomson The Protection of Civilians in UN Peacekeeping Operations: Recent Developments.......................................................................................... 27 Hugh Breakey and Angus Francis Points of Convergence and Divergence: Normative, Institutional and Operational Relationships between R2P and PoC... 39 Charles Sampford A Feuerbachian Inversion: From Sovereign Rights and Subjects Duties to Citizen Rights and State Duties 51 MYANMAR John Blaxland Myanmar: Time for Australian Defence Cooperation .......................................... 61 Christopher B. Roberts Changing Myanmar: International Diplomacy and the Futility of Isolation ............................................. 77 ARTICLE Vandra Harris and Aaron P. Jackson Learning Each Other’s Language: Doctrine and AFP-ADF Interoperability ................................................................ 103
  4. 4. Editors’ Note Welcome to the Summer 2011 edition of Security Challenges. The recent Libya intervention has put the future of the Responsibility to Protect (R2P) back on the international agenda. In this edition, Ramesh Thakur and other prominent authors discuss this concept and its practical implications from different angles. Moreover, Myanmar seems to have embarked on a process of significant political change in recent months. In this context, John Blaxland writes about the potential for defence engagement between Australia and Myanmar, while Christopher Roberts argues for ending international sanctions against the regime. Finally, the edition features an article by Aaron Jackson and Vandra Harris on the crucial issue of how to promote interoperability between the Australian Federal Police (AFP) and the Australian Defence Force (ADF). Stephan Frühling Benjamin Schreer Managing Editors December 2011 The Kokoda Foundation and the Security Challenges Editorial Team wish to acknowledge the generous support of The Australian Department of Defence and Jacobs Australia for the production and printing of the journal.
  5. 5. Security Challenges, Vol. 7, No. 4 (Summer 2011), pp. 1-12. - 1 - The Concepts of Responsibility to Protect and Protection of Civilians: ‘Sisters, but not Twins’ Vesselin Popovski This article examines the differences and commonalities between the concepts ‘Protection of Civilians’ (PoC) and ‘Responsibility to Protect’ (R2P) in terms of their origins, evolution and applicability to various situations. Such comparative analysis is necessary as to avoid confusion and misinterpretation. The main argument is that the two can be regarded as ‘sister’ concepts, reinforcing each other, particularly when it comes to critical situations, the most recent example being the international responses to the deadly threats to civilians in Libya in February-March 2011 and the measures imposed by the UN Security Council Resolutions 1970 and 1973. The article also assesses whether the responses to the crisis in Libya represent a triumph or a failure of the ’sister’ concepts. With the failures of the international community and warring parties to protect civilians in major armed conflicts in the last two decades—including Bosnia- Herzegovina, Liberia, Somalia, Rwanda, Burundi, Timor Leste, Democratic Republic of Congo, Sierra Leone, Kosovo, Darfur and elsewhere—two related, but distinct concepts have risen on the international agenda: the duty for Protection of Civilians (PoC) in armed conflict and the Responsibility to Protect (R2P) people from mass atrocities. There is a close relationship between R2P and PoC. They share the same concern—civilian suffering from mass human-induced violence—and both have underpinned international policy and calls for interventions. But there are also important differences in their scope and the situations and ways in which they can be applied. One can argue that they are ‘sister’ concepts: it is important to keep in mind their differences, as to avoid confusion and gaps in responsibilities; but also it is important to exploit the commonalities between the two as to bring mutual reinforcement and co-operation among actors. The two concepts have co-existed for more than a decade, but there has hardly been any in-depth comparative analysis nor a clear differentiation so far, apart from a short anonymous brief written for the Global Centre for R2P. 1 The UN Security Council Resolutions 1970 and 1973 on Libya utilised both concepts and have provided us with an opportunity to undertake a more detailed comparison. 1 ‘The Relationship between the Responsibility to Protect and the Protection of Civilians in Armed Conflict’, Policy Brief, Global Centre for the Policy to Protect, 9 May 2011, <http://responsibilitytoprotect.org/The%20Relationship%20Between%20POC%20and%20R2P- %20Updated.pdf> [Accessed 3 December 2011].
  6. 6. Vesselin Popovski - 2 - Protection of Civilians The origins of PoC in armed conflict can be traced in the history of the development of the norms of war, prescribed in early religious texts and developed by many scholars of politics and ethics over many centuries. 2 The need to protect the life of civilians and other non-combatants in armed conflicts has been gradually accepted in international humanitarian law, universalised and codified in the 1949 Fourth Geneva Convention. The Fourth Geneva Convention—‘Relative to the Protection of Civilian Persons in Time of War’ 3 —coined the term PoC, and grounded its international legal establishment. PoC, therefore, emerged as relevant to situations of armed conflict only—if there is no armed conflict, where civilians are defined as the opposite of combatants, PoC transforms itself into protection of citizens (that can confusingly also be abbreviated as PoC) in times of peace, which is covered by the well-developed and comprehensive body of human rights. PoC is more limited than the peace-time protection of citizens and more limited than the protection of all non-combatants in times of war—it would not, for example, include the protection of wounded or captured soldiers, which are dealt within the First, Second and Third Geneva Conventions. The International Committee of the Red Cross (ICRC), some UN agencies with protection mandates, such as OCHA (Office for the Coordination of Humanitarian Affairs), UNHCR (United Nations High Commissioner for Refugees), and some humanitarian NGOs interpret the concept of PoC as one of their core activities and apply it in a broader sense, covering not only the period of armed conflict, but also protecting civilians in post-conflict situations, too. PoC has been under regular consideration by the UN Security Council since 1999, when it received the first report of the Secretary-General on the subject. 4 Responsibility to Protect In parallel with the increased attention to PoC, another concept, R2P, has emerged out of a similar concern—the failure to protect people from systematic mass atrocities. 5 In 1996, the then Representative of the UN 2 See V. Popovski, G. Reichberg and N. Turner (eds.), World Religions and Norms of War (Tokyo: United Nations University Press, 2009). 3 ‘Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949’, International Humanitarian Law—Treaties & Documents, International Committee of the Red Cross, 2005, <http://www.icrc.org/ihl.nsf/FULL/380?OpenDocument> [Accessed November 2011]. 4 S/1999/957, 8 September 1999. For a full list of all UN Security Council resolutions and Secretary General Reports on PoC, see <http://www.securitycouncilreport.org/site/ c.glKWLeMTIsG/b.4012213/k.481A/Protection_of_Civilians_in_Armed_ConflictbrUN_Document s.htm> [Accessed 19 November 2011]. 5 Ramesh Thakur, The Responsibility to Protect: Norms, Laws and the Use of Force in International Politics (London: Routledge, 2011); Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Washington DC: Brookings Institution, 2008); Alex J. Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge: Polity, 2009).
  7. 7. The Concepts of Responsibility to Protect and Protection of Civilians - 3 - Secretary-General on Internally Displaced Persons, Francis Deng, with his team at Brookings published the seminal work Sovereignty as Responsibility, 6 arguing that sovereignty can no longer be seen as a licence for states to ignore people, but rather as states’ responsibility for the humanitarian consequences of conflict. After yet another failure to protect civilian population—Kosovo Albanians from the Milosevic regime’s repressions in 1998-99—and the controversial un-authorised military intervention by NATO, an International Commission on Intervention and State Sovereignty (ICISS) was formed from the initiative and sponsorship of the Canadian Government, that coined the phrase R2P in its 2001 Report. 7 R2P has become a worldwide shared concept, when in September 2005 almost 150 world leaders—the largest ever gathering in history of Heads of States—adopted the document ‘World Summit Outcome’ 8 at the opening of the UN General Assembly 60 th Session in New York, spelling out the newly emerging norm in paragraphs 138-140 of the document. The UN General Assembly continued debating R2P in several of its sessions as is evident from the Reports of the UN Secretary-General in 2009, 2010 and 2011, 9 always enjoying a huge support, and with very few countries, still reluctant to accept it. R2P thus applies to serious situations of mass atrocities, but it does not cover all violations of human rights, nor suffering from natural disasters—as horrific as these might be. One test of the R2P limitations was the 2008 Cyclone Nargis in Myanmar, when some of the initial founders of the concept—Bernard Kouchner and Lloyd Axworthy—attempted to speak about Myanmar’s reckless ignorance of the human suffering as a failure to exercise R2P. 10 This could have been possible under the original scope of the ICISS 2001 Report, but not under what was agreed upon by the UN General Assembly in the 2005 World Summit Outcome document. One may argue that if the Myanmar regime’s deliberate impediments to humanitarian assistance had continued and the misery and starvation of people could amount to a policy of extermination, a crime against humanity, then such deliberate inflicting of additional human suffering (not the victimisation from the natural disaster per se) could have triggered the applicability of R2P. However, if evidence does not support such a finding of a crime against 6 D. Rothchild, Fr. Deng, I. W. Zartman, S. Kimaro, T. Lyons, Sovereignty as Responsibility: Conflict Management in Africa Brookings (Washington DC: Brookings Institution Press, 1996). 7 International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre, December 2001). 8 ‘2005 World Summit Outcome’, Fact Sheet, UN Department of Public Information, September 2005, <http://www.un.org/summit2005/presskit/fact_sheet.pdf> [Accessed 3 December 2011]. 9 2009 UN SG Report: Implementing the Responsibility to Protect; 2010 UN SG Report: Early Warning, Assessment, and the Responsibility to Protect; 2011 UN SG Report: The Role of Regional and Sub-regional arrangements in Implementing the Responsibility to Protect. 10 For analysis, see ‘Cyclone Nargis and the Responsibility to Protect’, Myanmar/Burma Briefing No. 2 by the Asia-Pacific Centre for the Responsibility to Protect, <http://www.r2pasiapacific.org/documents/Burma_Brief2.pdf> [Accessed 3 December 2011].
  8. 8. Vesselin Popovski - 4 - humanity, an R2P framework cannot be activated, and in such a case other mechanisms—human rights machinery, humanitarian assistance—could be applied instead. In the case of R2P, the threshold between what falls in and what falls out of the concept lies in the determination of the four atrocity crimes and accordingly, it should not be equated to the general duty to protect citizens from various disasters, nor should its mechanisms be equated with general conflict prevention or conflict resolution; these can be regarded as a much larger and historically more developed agenda. Although prevention of conflicts in general can be a useful contribution in avoiding the occurrence of potential mass atrocities during these conflicts, the focus of the R2P preventive mechanisms should be specified to address particular atrocity crimes. R2P, although narrowed in scope, should have a deep resource: from the domestic, bilateral, regional and international mechanisms, starting from power-sharing agreements (Kenya) 11 to the use of military force as a last resort (Libya) can form its arsenal. Differentiating R2P and PoC The two concepts have a similar origin, they share the same initial humanitarian impulse, but they have different scope and applicability. Not all war crimes would fall under PoC, because some of them are not committed against civilians, for example, mistreatment of prisoners of war. But all war crimes would fall under R2P, as they represent one of the four atrocity crimes. War crimes against civilians, as well as crimes against humanity committed during armed conflict, would fall under both R2P and PoC and in these situations the two circles of R2P and PoC would overlap. A situation that would fall under PoC, but not R2P, for example, would be the protection of civilians threatened from escalating armed conflict, if mass atrocities are not planned and committed as part of such armed conflict. A situation that would fall under R2P, but not PoC, would be, for example, ethnic cleansing or crimes against humanity without nexus to an armed conflict. On one hand, PoC is narrower than R2P—if all war crimes trigger R2P, not all war crimes would fall under PoC—some are not committed against civilians. On the other hand, R2P is narrower than PoC; it would not apply in every armed conflict, but only in those in which mass atrocities have been systematically planned and committed. Interestingly, a situation that originally was not an armed conflict, can escalate into an armed conflict and engage the PoC. The first UN Security 11 Mark Schneider, ‘Implementing the R2P in Kenya and Beyond’, <http://www.crisisgroup.org/en/publication-type/speeches/2010/implementing-the-responsibility- to-protect-in-kenya-and-beyond.aspx> [Accessed 2 December 2011]; also ‘Kenya in Crisis’, Africa report No. 137, <http://www.crisisgroup.org/en/regions/africa/horn-of-africa/kenya/137- kenya-in-crisis.aspx> [Accessed 2 December 2011].
  9. 9. The Concepts of Responsibility to Protect and Protection of Civilians - 5 - Council Resolution 1970 (26 February 2011) on Libya describes atrocities against peaceful demonstrators—not yet an armed conflict—and activates R2P (crimes against humanity), but is technically not yet a PoC situation. The second UN Security Council Resolution 1973 (17 March 2011) already describes the situation in Libya as a civil war, not simply protests and riots, and the PoC comes to life (in parallel with R2P) as it applies in non- international armed conflict. Another interesting element, emphasised in Resolution 1973, is that PoC is an obligation of all parties in conflict, therefore it urges not only the Gaddafi regime, but the rebels, as well, to protect civilians. If R2P is a matter for states only, PoC can be an obligation for non-state actors. The comparison between the legal sources of R2P and PoC can be illustrated as follows: Table 1: Comparison of Legal Sources for R2P and PoC R2P Legal Sources PoC Legal Sources 1948 Genocide Convention (genocide) 1949 Fourth Geneva Convention (PoC), International Humanitarian Law (IHL), jus in bello traditions 1949 four Geneva Conventions and their Additional Protocols (war crimes) UN Security Council Resolutions: thematic (Res. 1894) and country-specific mandates to PoC 1998 Rome Statute for ICC (crimes against humanity, forceful deportation) Refugee Laws (1951 Convention, 2009 African Union Convention on Internally Displaced Persons) Domestic Law Ottawa protocol banning landmines Bilateral, Regional Law 2010 Convention on Cluster Munitions UN Charter, Chapter VI, VII, VIII measures Relevant Human Rights Laws—prohibition of recruitment of children in armed forces Relevant Human Rights Laws—non- discrimination of ethnic minorities Table 1 (though not exhaustive), demonstrates well both similarities and differences: if all four Geneva Conventions are relevant to R2P, only the last (fourth) Geneva Convention is relevant to PoC. The whole volume of human rights laws would be too large for both R2P and PoC, and only parts of it will be relevant; for example, the non-discrimination of minorities would be relevant to R2P, if minorities rights are gradually abused, this can escalate into ethnic cleansing or genocidal policies. In another example, children’s rights may be relevant to PoC in the case of a serious impact of armed conflicts on children. The legal sources for PoC would also include refugee laws, some disarmament treaties, and prohibiting certain weapons like chemical weapons, landmines or cluster munitions that cause excessive civilian suffering.
  10. 10. Vesselin Popovski - 6 - Table 2 (being, as Table 1, also not exhaustive) indicates the similarities and differences between R2P and PoC in terms of the actors engaged in the various types of protection: Table 2: Comparison of Actors Engaged with R2P and PoC R2P Actors PoC Actors UN Secretary General Special Advisors Armed Forces Police, law enforcement institutions (Pillar 1) Peace Operations, UN Security Council, Department of Peace-Keeping Operations (DPKO) Regional actors: African Union, European Union, League of Arab States, others UN Agencies: UNHCR, OCHA DPKO, UNHCR, High-Commissioner for Human Rights, Peacebuilding Commission, UNICEF, Special Rapporteur on Children; Aid donors, capacity builders, NGOs (Pillar 2) ICRC Mediators, fact-finding missions, Secretary- General (non-coercive measures); UN Security Council (coercive measures, Pillar 3) Humanitarian NGOs International Criminal Tribunals Some actors would engage in both R2P and PoC, but others will have specific mandate in just one type of protection. Although R2P may have the ambition to engage almost everyone, illustrated in the formula ‘narrow, but deep response’, some actors—PKO, UNHCR, ICRC, OCHA—that are very willing to apply PoC, are reluctant to engage with R2P, considering it a potential jeopardy for their mandates. R2P and PoC concepts are ‘sisters, but not twins.’ They are close in relationship and share similar humanitarian concerns; yet, their specificity is important and should not be confused. Agencies that acknowledge and engage in PoC have been reluctant to attach their mandate to R2P, seeing the concept as too interventionist. In fact, one needs to be reminded that R2P contains very little interventionism—even within the Pillar Three 12 machinery, military intervention forms only a last option. Adding that R2P has a very large preventative agenda, there is not much to worry about; R2P came into existence as a counter-point to intervention, it is about helping potential victims of atrocities. Although technically not a firm international legal obligation, it has reached global acceptance and every General Assembly debate proves this. R2P, as the ‘younger sister’, does not undermine action, rather it catalyses it; it can mobilise political will and serve 12 The 2009 UN SG Report: ‘Implementing the Responsibility to Protect’ divided R2P into three pillars: first pillar—states domestic responsibility to protect; second pillar—states and international organizations assist other states to protect; and third pillar—when states manifestly fail to protect, the international community through the UN Security Council adopt timely and decisive measures, including coercion, under Chapter VII of the UN Charter.
  11. 11. The Concepts of Responsibility to Protect and Protection of Civilians - 7 - the PoC agenda well. The ‘sister’ concepts, R2P and PoC, can reinforce each other, but also can compete with each other. R2P and PoC: Libya 2011 One may argue that R2P and PoC merge closer when it comes to very critical situations such as in February-March 2011 in Libya, where R2P rapidly developed from Pillar One to the whole scope of Pillar Three, ‘timely and decisive response’, when Libya manifestly failed to protect. The categorisation of the situation as civil war brought PoC language into Resolution 1973 and it became a textbook resolution for a parallel application of both PoC and R2P. Libya 2011 is not the first time when R2P was referred to by the UN Security Council—previous Security Council resolutions on Sudan (Darfur) and Côte d’Ivoire also used R2P language. 13 Also, Libya is not the first time when the Security Council has authorised use of force to protect civilians—the bombing of Bosnian Serb military targets around Sarajevo in 1995 was aimed mostly to protect the Bosnian Muslim civilian population and was under the solid authorisation by the Security Council. I would even question that Resolution 1973 is the first time the Security Council has authorised the use of force for human protection against the wishes of a functioning state, and that the closest the Council came to doing so in the past, was in Security Council Resolution 794 (1992) in Somalia and Resolution 929 (1994) in Rwanda. 14 Let us not forget Security Council Resolution 688 (1991) in the aftermath of the first Gulf War that established a no-fly zone to protect the Kurdish minority in Northern Iraq, certainly against the wishes of a functioning state (Iraq) and in a very similar situation to that in Libya— Saddam Hussein was threatening a huge part of the Iraqi (Kurdish) population with massacre. Although Resolution 688 did not use the language ‘all necessary means’, the no-fly zone in Northern Iraq was not a paper-tiger—it was supported with limited air strikes several times in the 1990s, with the intervening states referring to Resolution 688 as a justification for their military actions. Resolution 688 was adopted when the R2P did not exist yet as a defined concept, and when PoC was simply a legal requirement from the Fourth Geneva Convention, therefore one can regard the two Security Council Resolutions 1970 and 1973 on Libya as the first real test of utilising the two ‘sister’ concepts, R2P and PoC, to stop a potential mass slaughter of a civilian population. 13 See for example text from Resolution 1962 (2010) on Côte d’Ivoire: “recalling that the Ivorian leaders bear primary responsibility for ensuring peace and protecting the civilian population in Côte d’Ivoire and demanding that all stakeholders and parties to conflict act with maximum restraint to prevent a recurrence of violence and ensure the protection of civilians”. 14 Alex J. Bellamy and Paul D. Williams, ‘The New Politics of Protection?’, International Affairs, vol. 87, issue 4 (2011); also A. Bellamy, ‘Libya and the Responsibility to Protect: The Exception and the Norm’, Ethics & International Affairs, vol. 25, no. 3 (2011).
  12. 12. Vesselin Popovski - 8 - Resolution 1970 The Security Council invoked R2P immediately when on 26 February 2011 it considered the deadly risk and the urgent need to protect the Libyan population from atrocities, and adopted Resolution 1970, condemning the use of force against civilians, deploring the gross systematic violations of human rights, expressing deep concerns at the deaths of civilians and the incitement to hostility by the Libyan Government. The Council considered that the widespread and systematic attacks against the civilian population may amount to crimes against humanity, referring to one of the four atrocity crimes and triggering the applicability of R2P. In explicit text and in a separate paragraph, Resolution 1970 recalled the Libyan authorities’ responsibility to protect (emphasis added) its population. Resolution 1970 demanded an immediate end to violence, urged Libya to act with utmost restraint, to respect human rights, to ensure safety of all foreign nationals, to allow safe passage of humanitarian and medical supplies, and lift media restrictions; and referred the situation to the International Criminal Court (ICC)—an additional signal that R2P crimes might have been committed. It also imposed Chapter VII sanctions on Libya, namely an arms embargo, strengthened with a call upon States to inspect all cargo, that may, upon reasonable ground to believe, contain prohibited items; a travel ban against 16 Libyan officials, listed in Annex I of the Resolution, among them Gaddafi himself, some of his family members and military leaders, involved in violence; and an asset freeze against six designated individuals, listed in Annex II of the Resolution—Gaddafi, four of his sons and one daughter. There was no positive reaction, rather the opposite; Gaddafi not only ignored Resolution 1970, but committed clear breaches of it, refusing to permit humanitarian aid convoys into the besieged Misrata and Ajdabiya, a clear failure by Libya to exercise R2P. The search for a peaceful solution through the UN Special Envoy and the African Union High-Level Committee continued, but gradually most governments and regional organisations realised that the use of diplomatic efforts only would not protect the Libyan people in lethal danger. Acknowledging Gaddafi regime’s manifest failure to protect people, the international community shifted to enforcement measures: on 12 March 2011 the League of Arab States (LAS) called on the Security Council to impose immediately a no-fly zone on the Libyan Air Force and to establish safe areas as precautionary measures to protect the civilian population. Resolution 1973 This demand for a no-fly zone by the LAS proved to be crucial. 15 The United Kingdom, France and Lebanon (the latter representing LAS) introduced a 15 Bellamy and Williams, ‘The New Politics of Protection?’.
  13. 13. The Concepts of Responsibility to Protect and Protection of Civilians - 9 - new resolution, Security Council Resolution 1973 (17 March 2011) which urged the parties involved in armed conflict to “bear the primary responsibility to take all feasible steps to ensure protection of civilians (emphasis added)”. In Resolution 1973, PoC came to life, as the situation moved from a riot—which does not qualify as ‘armed conflict’—to a civil war, or a non-international armed conflict, in the language of the Geneva Conventions. This was an important development, as the Security Council could now strengthen its decisions based on obligations under international humanitarian laws, applicable only in time of (civil) war and add war crimes jurisdiction into what has already been established as R2P obligations in Resolution 1970 on the basis of potential crimes against humanity. In Resolution 1973, all the force of PoC (applicable to armed conflict) is added to the force of R2P, previously already activated in Resolution 1970. The ‘sister’ concepts R2P and PoC in Resolution 1973 were synergised, their legal and political forces merged to urge the Security Council to utilise all its overwhelming power under Chapter VII, including the use of force—to protect the civilian population and civilian-populated areas. This timely and determined decision of the Security Council, a body often accused of being obsolete, can be regarded as a triumph of both PoC and R2P. Paragraph 4 of Resolution 1973 under the sub-title ‘Protection of Civilians’ contained the authorisation of the use of force in the well-known formula ‘to take all necessary measures’. Paragraph 5 added into the authorisation of the use of force, the establishment of a no-fly zone. Another new measure imposed by Resolution 1973 is a ban on flights where states shall deny permission to Libyan aircraft to take off from, or land in, or overfly their territory. Resolution 1973 in its two Annexes added additional designations of individuals, to whom the travel ban or the asset freeze will apply. Resolution 1973 also strengthened other measures already adopted in Resolution 1970: Paragraph 13 of Resolution 1973, enforcement of the arms embargo, replaced Paragraph 11 of the previous resolution, adding an additional authorisation to use force—after calling upon all vessels and aircraft of flag States to co-operate with the inspections of the arms embargo; the Security Council also authorised UN Member States‚ to use “all necessary measures commensurate with the specific circumstances to carry out such inspections”. Similar precedents can be found in the history of the enforcement of sanctions in Southern Rhodesia in 1966 (Security Council Resolution 221), Iraq-Kuwait in 1990 (Security Council Resolution 665) and others. This additional and limited authorisation to use of force in Resolution 1973 does not, curiously, target Libya only; it can be applied against any other state (including its vessels and aircraft) that may violate the arms embargo. Here comes probably the most controversial—legally and politically—issue in my analysis: Resolutions 1970 and 1973 not only prohibited the supply of any weapons to Libya, but also authorised limited use of force to intercept such supplies. Therefore, when in late June 2011 the French parachuted
  14. 14. Vesselin Popovski - 10 - machine guns, rocket-propelled grenades and munitions to the Libyan rebels, could, hypothetically, Russia, officially protesting this as a violation of Resolution 1970, 16 use force against the French aircraft delivering such weapons to rebels in contravention of the Resolutions? Ironically, such hypothetical use of force by Russia to prevent the French supplies of weapons to Libyan rebels, would have been in compliance with Paragraph 13 of Resolution 1973. Resolution 1973 was adopted with ten votes in favour and five abstentions: Brazil, China, Germany, India and Russia. These five countries—two permanent members and three strong candidates for permanent membership—voiced their preference to seek a peaceful solution when abstaining from the vote. Interestingly, Resolution 1973 does not eliminate efforts for a peaceful solution; in fact it repeats and extends them. In its statement, Russia recalled its own earlier draft resolution, calling for a ceasefire and dialogue, but it is doubtful whether such a mild resolution would have been instrumental. Calls for a ceasefire were never in shortage. Many were made by UN officials and regional organisations, but in vain. On the contrary, announcement of a ceasefire came from Gaddafi immediately after the adoption of Resolution 1973 and this demonstrated how important for the concept R2P is, if the international community is able to utilise the R2P machinery to its deepest scope—threat and use of military measures under Chapter VII. R2P and PoC after Libya I share views expressed by various scholars 17 that Security Council Resolutions 1970 and 1973 represent a triumph of R2P and PoC. It would have been a defeat of R2P and PoC, if Resolutions 1970 and 1973 were not adopted and Gaddafi could massacre the citizens of Benghazi. The Resolutions are a triumph of R2P, because for the first time since the concept emerged 10 years ago, the full and deepest scope of its implementation was utilised. The Pillar One domestic responsibility to protect was referred to in Resolution 1970, and when this responsibility was manifestly flouted and the regime threatened its own population with massacre, the responsibility shifted to the international community; and, both the UN and regional organisations engaged in the full scope of Pillar Three measures: negotiations, diplomatic pressure, sanctions and, when all these proved to be ineffective, the authorisation for the use of force came from the only legal authority—the Security Council. 16 Statement by Russian Foreign Minister Lavrov, ‘Russia Criticizes France over Arming Libyan Rebels’, RT, 30 June 2011, <http://rt.com/news/france-supplying-rebels-country/> [Accessed 19 November 2011]. 17 See Gareth Evans, ‘Ending Mass Atrocity Crimes: The R2P Balance Sheet After Libya’, the Second Renate Kamener Oration, Leo Baeck Centre, Melbourne, 31 July 2011; Alex Bellamy, Tom Weiss, Jennifer Welsh and other authors in the Roundtable: Libya, RToP, and Humanitarian Intervention, Ethics & International Affairs, vol. 25, no. 3 (2011).
  15. 15. The Concepts of Responsibility to Protect and Protection of Civilians - 11 - The removal of Gaddafi from power was nowhere stated as an aim in the Resolutions; Gaddafi was mentioned but in terms of referral to the ICC, the freezing of his assets and the ban on travel. Also, the military action was only one part of the whole coercive regime established by the Resolutions. A common mistake is to see R2P simply as a military intervention. In fact, the international community has a lot of options before it comes to military intervention: Chapter VI dialogue and mediation, non-military sanctions (Article 41), and only if these fail, military intervention (Article 42). What the responses to the crisis in Libya show, is that the Chapter VI and the Article 41 measures could be shortened to move faster towards a ‘timely and decisive’ military response. Libya also showed that consensus can often be difficult, particularly when it comes to the last resort. It was the extraordinary coincidence of many factors in Libya 18 that allowed the triumph of R2P and PoC. If Libya demonstrated the fullest opportunity and the triumph of R2P and PoC, Syria showed the opposite—the limits of the ‘sister’ concepts. The difficult question from Kosovo in 1999 (that triggered the debates that gave birth to R2P), ‘How to save people from mass atrocities, when a state manifestly fails to protect them and the UN Security Council is paralysed?’, is back on the table. The biggest R2P triumph so far, in Libya, could be followed by probably the biggest R2P failure so far—to protect people in Syria and elsewhere. If the UN and regional organisations do not act with the same determination as they did in Libya, the danger of selectivity in the application of R2P and PoC will continue to cloud international law. In the words of Dr. Simon Adams, Executive Director of the Global Centre for the R2P: “While tanks, troops and even warships have been unleashed against ordinary Syrians, the Security Council has so far failed in its responsibility to protect civilians. Syria has become a stain upon the conscience of the world.” 19 Conclusion The concepts R2P and PoC originated from a similar concern, potential human suffering and innocent victimhood from wars or mass atrocities, and developed in parallel over the last decade. I presented in the comparative analysis above the commonalities and differences between the two concepts and emphasised that they can reinforce each other, but they can also enter into competing agendas. Although collaboration is always preferable, ignorance of the differences between the two concepts may create confusion and counter-productivity. 18 Bellamy, ‘Libya and the Responsibility to Protect’. 19 Global Centre for R2P Media release ‘Syria at the Crossroads: UN General Assembly Must Uphold their Responsibility to Protect’, <www.globalr2p.org/media/pdf/Syria_Press_Release_ 21_November_2011.pdf> [Accessed 3 December 2011].
  16. 16. Vesselin Popovski - 12 - Professor Ed Luck, the Special Representative of the UN Secretary-General on R2P, called the two concepts ‘cousins, but not sisters’; but this was before Resolutions 1970 and 1973 on Libya. After Libya, which demonstrated the important of progress in the development of awareness, adoption and implementation of both R2P and PoC concepts, I would not hesitate to define R2P and PoC as ‘sisters, but not twins’. The two concepts may exist separately in normal circumstances, but when the lives of people are gravely threatened in critical situations, as occurred in Libya in February- March 2011, they should reinforce each other and merge closer as to avoid gaps in order to protect the innocent people at risk. Vesselin Popovski is Senior Academic Programme Officer at the Institute for Sustainability and Peace, United Nations University in Tokyo. He develops research, teaches and publishes in peace and security, international law, human rights and global governance. He co-edited the books: International Criminal Accountability and the Rights of Children (2006); World Religions and Norms of War (2009); Democracy in the South (2010); Human Rights Regimes in the Americas (2010); Blood and Borders (2011). He has completed a trilogy on modern trends and innovations in governance, co-editing Engaging Civil Society (2010), Building Trust in Government (2010) and Cross-Border Governance (2011). Another major book Legality and Legitimacy in Global Affairs is forthcoming with Oxford University Press. He took part in two major international initiatives: the International Commission on Intervention and State Sovereignty, that produced the concept ‘Responsibility to Protect’, and the Princeton Principles of Universal Jurisdiction. popovski@unu.edu.
  17. 17. Ad to be added by printers
  18. 18. Security Challenges, Vol. 7, No. 4 (Summer 2011), pp. 13-25. - 13 - Libya and the Responsibility to Protect: Between Opportunistic Humanitarianism and Value-Free Pragmatism Ramesh Thakur Since the Treaty of Westphalia, sovereignty has been backed by the norm of nonintervention. By contrast, the responsibility to protect (R2P) strikes a balance between unauthorised unilateral interventions and institutionalised indifference. With a rapidly deteriorating humanitarian situation in Libya in early 2011, the United Nations (UN) authorised the use of force to protect an imminent slaughter of civilians but prohibited taking sides in the internal civil war, intervening with ground troops, or effecting forcible regime change. The record of NATO actions in Libya marks a triumph for R2P but also raises questions about how to prevent the abuse of UN authority to use international force for purposes beyond human protection. Military action by international forces in Libya in 2011 marks the first instance of the implementation of the sharp edge of the new norm of the responsibility to protect (R2P). It was a successful example, if also a controversial one. Until the twentieth century, state sovereignty included the right to go to war and an unchallengeable monopoly on the lawful use of force domestically. Gradually by the time of the creation of the United Nations (UN) in 1945 and more rapidly thereafter, the right to use force internationally was restricted to self-defence against armed attack or under UN authorisation. Historically, the norm of nonintervention notwithstanding, individual states had also intervened inside sovereign jurisdictions to stop the slaughter of kith and kin or co-religionists. 1 Under the impact of the Holocaust and starting with the Genocide Convention in 1948, the international community asserted the collective right to stop states killing large numbers of civilians inside their borders. Even so, for 350 years—from the Treaty of Westphalia in 1648 until 1998— sovereignty functioned as institutionalised indifference. International interventions in Kosovo and East Timor in 1999 broke that mould and were the backdrop to UN Secretary-General Kofi Annan’s search for a new norm. His genius lay in channelling historic ideational transformations into new 1 For a study of the relevance of R2P to the problem of states with ethnic ties spread across national borders, see Walter Kemp, Vesselin Popovski and Ramesh Thakur (eds.), Blood and Borders: The Responsibility to Protect and the Problem of the Kin-State (Tokyo: United Nations University Press, 2011).
  19. 19. Ramesh Thakur - 14 - institutional linkages. Instead of collective gnashing and wailing during atrocities followed by a traumatic repeat afterwards, yet again, of promises of ‘Never Again’, he pushed for a new doctrine to take timely and effective action. With Canada’s help, an international commission formulated the innovative principle of the responsibility to protect. 2 The UN was neither designed nor expected to be a pacifist organisation. On the contrary, its origins lie in the anti-Nazi wartime military alliance among Britain, the United States and the Soviet Union. Its primary purpose is the maintenance of international peace and security. The chief responsibility for doing this is vested in the all-powerful UN Security Council as the world’s sole and duly sworn in sheriff for enforcing international law and order. The system of collective security against interstate aggression never materialised. In the decades after World War II the nature of armed conflict was transformed. 3 Interstate warfare between uniformed armies gave way to irregular conflict between rival armed groups. The nature of the state too changed from its idealised European version. Many communist and some newly-decolonised countries were internal security states whose regimes ruled through terror. Increasingly, the principal victims of both types of violence were civilians. Advances in telecommunications brought the full horror of their plight into the world’s living rooms. R2P spoke eloquently to the need to change the UN’s normative framework in line with the changed reality of threats and victims. 4 In the meantime, the goals of promoting human rights and democratic governance, protecting civilian victims of humanitarian atrocities and punishing governmental perpetrators of mass crimes became more important. Our understanding and appreciation of human rights and commitment to their promotion and protection have deepened and broadened. 5 The chief impulse to human rights is the recognition that every human being is deserving of equal moral consideration. It is an acceptance 2 The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre for ICISS, 2001). The Report is available on the website at <www.iciss.gc.ca>. See also Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Washington: Brookings Institution, 2008); Ramesh Thakur, The Responsibility to Protect: Norms, Laws and the Use of Force in International Politics (London: Routledge, 2011) and The People vs. the State: Reflections on UN Authority, US Power and the Responsibility to Protect (Tokyo: United Nations University Press, 2011); Thomas G. Weiss, Humanitarian Intervention (London: Polity, 2007); Alex J. Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge: Polity, 2009). 3 See Andrew Mack et al., Human Security Report 2005 (Oxford: Oxford University Press, 2005). 4 For an account of the UN’s transformation since 1945, see Ramesh Thakur, The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge: Cambridge University Press, 2006). 5 See Roger Normand and Sarah Zaidi, Human Rights at the UN: The Political History of Universal Justice (Bloomington: Indiana University Press, 2008).
  20. 20. Libya and the Responsibility to Protect - 15 - of a duty of care by those living in safety towards those trapped in zones of danger. The UN’s normative mandates on security, development and human rights alike embody this powerful intuition. 6 Failure to act in the 1994 Rwanda genocide 7 and non-UN-authorised humanitarian intervention in Kosovo in 1999 set off angry and deeply divisive recriminations around the world for acts of omission and commission. 8 In the wake of that controversy, the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS) argued that the essential nature of sovereignty had changed from state privileges and immunities to the responsibility to protect people from atrocity crimes. Where the state defaulted on its solemn responsibility owing to lack of will or capacity, or because it was itself complicit in the commission of the atrocities, the responsibility to protect tripped upwards to the international community acting through the authenticated structures and procedures of the UN. The importance of sovereignty as the key organising principle of the modern world order needed and received a strong affirmation in the ICISS report. The Commission took pains to emphasise that a cohesive and peaceful international system is more likely to be achieved through the cooperation of effective and legitimate states than in an environment of fragile, collapsed, fragmenting or generally chaotic states. 9 Reconceptualising sovereignty as responsibility 10 was not a radical departure from established precept and practice. Nowhere is the authority of the state absolute. Internally, it is constrained and regulated by constitutional power- sharing arrangements and shared between different levels of government: local, provincial and national. It is also distributed among different sectors of public authorities at any one given level, such as the legislature, executive, judiciary and bureaucracy. Internationally, too, in human rights covenants, UN practice and state practice itself, sovereignty is understood as embracing responsibility. The UN Charter is itself an example of an international obligation voluntarily accepted by member states. 6 This is most powerfully articulated in Kofi A. Annan, In Larger Freedom: Towards Development, Security and Human Rights For All, Report of the Secretary-General, document A/59/2005 (New York: United Nations, 21 March 2005). 7 See Kingsley Moghalu, Rwanda’s Genocide: The Politics of Global Justice (Houndmills: Palgrave Macmillan, 2005). 8 See Albrecht Schnabel and Ramesh Thakur (eds.), Kosovo and the Challenge of Humanitarian Intervention: Selective Indignation, Collective Action, and International Citizenship (Tokyo: United Nations University Press, 2000). 9 This was the assumption behind a joint project between the Carr Center of Harvard University, the International Peace Academy and the United Nations University: Simon Chesterman, Michael Ignatieff and Ramesh Thakur (eds.), Making States Work (Tokyo: United Nations University Press, 2005). 10 For further elaboration, see Trudy Jacobsen, Charles Sampford and Ramesh Thakur (eds.), Re-envisioning Sovereignty: The End of Westphalia? (London: Ashgate, 2008).
  21. 21. Ramesh Thakur - 16 - There is no transfer or dilution of the status of state sovereignty. But there is a necessary change in the exercise of sovereignty: from sovereignty as control to sovereignty as responsibility in both internal functions and external duties. Anne Orford argues that contrary to claims that the requirement is to put the R2P principle into practice, ICISS in fact put evolving practice of contingent and softening sovereignty, and of increasing international intrusions, into a new concept: the justificatory principle followed practice, words followed deeds. R2P is an attempt to integrate existing and evolving but dispersed practices of protection into a conceptually coherent account of international authority. 11 The unanimous endorsement of R2P by the largest ever collection of world leaders at the UN summit in 2005 was historic, for it spoke to the fundamental purposes of the UN and responded to a critical challenge of the 21st century. Some 150 world leaders tightened the application of R2P to four atrocity crimes: war crimes, genocide, ethnic cleansing, and crimes against humanity. They affirmed that states have the primary responsibility to protect all people within their territorial jurisdiction but that if they manifestly failed to do so, owing to incapacity, unwillingness or complicity in the crimes, then the international community, acting through the UN Security Council, would take timely and decisive action to implement the international responsibility to protect. 12 Secretary-General Ban Ki-moon then refined the principle further in the language of three pillars: Pillar One as the state’s own responsibility; Pillar Two as international assistance to strengthen state capacity to implement R2P obligations; and Pillar Three as coercive international action, including measures not involving the use of force under Article 41 of the United Nations Charter (for example economic sanctions, arms embargoes, and asset freezes) and, ultimately, military force under Article 42. 13 R2P captures and channels the convergence of some significant trends in world affairs. Its preventive and rebuilding pillars involve strengthening a state’s capacity to handle its own law and order problems. But its hard edge requires the international community, acting through the UN, to take up the slack when any state defaults on its sovereign responsibility to protect all people inside its borders. By its very nature, including unpredictability, unintended consequences and the risk to innocent civilians caught in the crossfire, warfare is inherently brutal: there is nothing humanitarian about the means. Still, the fact is that our ability and tools to act beyond our borders have increased tremendously. 11 Anne Orford, International Authority and the Responsibility to Protect (Cambridge: Cambridge University Press, 2011). 12 2005 World Summit Outcome, adopted by UN General Assembly Resolution A/RES/60/1, 24 October 2005, paras. 138-40. 13 Ban Ki-moon, Implementing the Responsibility to Protect: Report of the Secretary-General (New York: United Nations, Doc. A/63/677, 12 January 2009).
  22. 22. Libya and the Responsibility to Protect - 17 - This greatly increases demands and expectations ‘to do something’ and the fundamental question cannot be avoided: under what circumstances is the use of force necessary, justified and required to provide effective international humanitarian protection to at-risk populations without the consent of their own government? Absent R2P, the intervention is more likely to be ad hoc, unilateral, self-interested and deeply divisive. With the R2P norm and guiding principles agreed to in advance, military action is more likely to be rules-based, multilateral, disinterested and consensual. Not a Western Implant The R2P debate is emphatically not a West versus The Rest narrative. Instead the theory and practice of state sovereignty is itself decidedly European. Developing countries, not Western ones, are the likely targets of international military interventions. If their people are the principal beneficiaries and their states the main victims when R2P is put into practice, their scholars, think tank analysts, public intellectuals and journalists should be the lead debaters. Asia has its own rich traditions that vest sovereigns with responsibility for the lives and welfare of subjects while circumscribing the exercise of power with the majesty of law that stands above the agents of the state. In India Ashoka, the great Mauryan emperor (269–232 BC), inscribed the following message on a rock edict: “this is my rule: government by the law, administration according to the law, gratification of my subjects under the law, and protection through the law”. 14 The debate is also wrongly framed on substance. In the real world, we know that there will be more atrocities, victims and perpetrators—and therefore more interventions. They were common before R2P; they are not guaranteed with R2P. The real choice is not if interventions will take place, but when, why, how, by whom and under whose authority. Unilateral and ad hoc interventions will sow and nourish the seeds of international discord. Multilateral and rules-based interventions will speak powerfully to the world’s determination never again to return to institutionalised indifference to mass atrocities. R2P attempts to strike a balance between unilateral interference and institutionalised indifference. It will help the world to be better prepared— normatively, organisationally and operationally—to meet the recurrent challenge of external military intervention wherever and whenever it arises again, as assuredly it will. To interveners, R2P offers the prospect of international legitimacy, reduced compliance and transaction costs and more effective results. To potential targets of intervention, R2P offers the reassurance of a rules-based system. Absent an agreed new set of rules, 14 Quoted in Stanley Wolpert, A New History of India (New York: Oxford University Press, 1977), pp. 66–7.
  23. 23. Ramesh Thakur - 18 - there will be nothing to stop the powerful from intervening ‘anywhere and everywhere’. Gaddafi in the Crosshairs of a Changing Normative Order R2P is narrow—it applies only to the four crimes of ethnic cleansing, genocide, crimes against humanity, and war crimes. But it is deep: there are no limits to what can be done in responding to these atrocity crimes. In a matching symmetry, support for R2P has been broad but shallow. 15 Libya in 2011 provided an opportunity to convert the noble sentiments and solemn promise of R2P into meaningful action whose import will resonate long and far. In poignant testament to its tragic origins and normative power, R2P was the discourse of choice in debating how best to respond to the crisis. R2P is not solely about military intervention. The world’s comfort level is greater with action under Pillars One (building state capacity) and Two (international assistance to build state capacity) than Pillar Three (coercive international action with the final option being military intervention to protect at-risk populations from atrocity crimes). But, to be meaningful, the R2P spectrum of action must include military force as the option of last resort. Three sets of issues were involved in framing the most appropriate and effective response to the Libyan crisis: military capacity, legal authority, and political legitimacy. Analysts were divided on the scale, complexity and feasibility of a no-fly zone. Only the West has the requisite assets and operational capability for military action in the Libyan theatre. But NATO would have been ill-advised to take any military action on its own authority. Political commentators warned of mission creep. But that would arise only if ownership of the uprising was appropriated from the Libyans. No one asked for foreign boots on the ground. UN legal authorisation could be restricted to four military tasks: surveillance and monitoring, humanitarian assistance, enforcement of the arms embargo, and enforcement of a no-fly zone. The UN Security Council, Human Rights Council and Secretary-General Ban Ki-moon called on Libya to respect its R2P, human rights and international humanitarian law obligations. 16 When their appeals were ignored, on 26 February, the Security Council demanded an end to the violence in Libya, which “may amount to crimes against humanity”; imposed sanctions; affirmed Libya’s R2P obligations; and referred Gaddafi to the International 15 See Ramesh Thakur, ‘The Responsibility to Protect and the North–South Divide’, in Sanford R. Silverburg, ed., International Law: Contemporary Issues and Future Developments (Boulder: Westview, 2011), pp. 32–47. 16 See ‘Security Council Press Statement on Libya’, United Nations document SC/10180 AFR/2120, 22 February 2011, <http://www.un.org/News/Press/docs/2011/sc10180.doc.htm> [Accessed 5 September 2011]; ‘Ban Strongly Condemns Qadhafi’s Actions Against Protesters, Calls for Punishment’, <http://www.un.org/apps/news/story.asp?NewsID=37599> [Accessed 5 September 2011].
  24. 24. Libya and the Responsibility to Protect - 19 - Criminal Court (Resolution 1970). 17 On 4 March, both the Global Centre and International Coalition for R2P published an open letter to the Security Council pointing out that Resolution 1970 had failed to halt attacks taking place at the moment and calling for additional protective measures. 18 Although Britain and France took the lead in trying to mobilise diplomatic support for some military action to help the Libyan rebels, the critical turning point was US backing. The key decision was made by President Barack Obama at a meeting with top officials on 15 March. R2P gave him the necessary intellectual and normative tool to act. He decided to side with pro- interventionist advisers in favour of a definition of the Libyan crisis that was closer to his instincts and consistent with the narrative that won him the White House. 19 The game-changer was the juxtaposition of R2P as a powerful new galvanising norm; the defection of Libyan diplomats who joined the chorus of calls from the rebels for immediate action to protect civilians; and Arab, French and British participation that provided political cover and international legitimacy. In Iraq in 2003, Washington was the ardent suitor for military intervention. In Libya in 2011, Washington was the reluctant follower. Adopted on 17 March by a 10-0-5 (China, Russia, Brazil, Germany, India) vote, UN Security Council Resolution 1973 authorised the use of “all necessary measures … to protect civilians and civilian-populated areas”: the first UN-sanctioned combat operations since the 1991 Gulf War. 20 In the Balkans, it took NATO almost the full decade to intervene with air power in Kosovo in 1999. In Libya, it took just one month to mobilise a broad coalition, secure a UN mandate to protect civilians, establish and enforce no- fly and no-drive zones, stop Gaddafi’s advancing army and prevent a massacre of the innocents in Benghazi. Carefully crafted both to authorise and delimit the scope of intervention, Resolution 1973 specified the purpose of military action as humanitarian protection and limited the means to that goal. At a time when the recapture of Benghazi by Gaddafi loyalists seemed imminent, Resolution 1973 authorised military action to prevent such civilian slaughter but not intervene in the civil war (any state has the right to use force to suppress armed uprisings), nor effect regime change. Occupying or dismembering Libya was 17 United Nations Security Council, Resolution 1970 (2011), 26 February 2011. 18 International Coalition for the Responsibility to Protect and the Global Centre for the Responsibility to Protect, ‘Open Letter to the Security Council on the Situation in Libya’, 4 March 2011, <http://globalr2p.org/advocacy/index.php> [Accessed 5 September 2011]. 19 See Helene Cooper and Steven Lee Myers, ‘Obama Takes Hard Line with Libya after Shift by Clinton’, New York Times, 18 March 2011. 20 United Nations Security Council, Resolution 1973 (2011), 17 March 2011. Previous operations, such as in Bosnia, East Timor, Somalia or Congo, were or are peace operations authorised to use force if challenged and not conceived as combat operations from the outset.
  25. 25. Ramesh Thakur - 20 - prohibited. Gaddafi was not to be directly targeted. To the extent that he was so targeted, NATO exceeded UN authority in breach of the Charter law. Obama’s insistence that the United States would not be deploying ground troops aligned military means to the limited ambitions and objectives: humanitarian protection, not regime change. 21 In contrast to the Bush doctrine, under Obama the United States will act in concert with others, not alone; coax, persuade and heed, not impose its will; and set clear limits on goals and means. This did not please some shadow warriors. Referring to the role of Hillary Clinton, Susan Rice, and Samantha Power in the decision to join the intervention against the inclinations of Defense Secretary Robert Gates, National Security Adviser Thomas Donilon and Chief of Counterterrorism John Brennan, Jacob Heibrunn derided Obama for effectively having been henpecked into interventionism by “these Valkyries of foreign affairs”. 22 Not to be outdone on misogyny, Mark Krikorian commented caustically that “our commander-in-chief is an effete vacillator who is pushed around by his female subordinates”. 23 Norm Consolidation or Abuse As the collection of articles in this special issue makes clear, there is a close normative and operational link between R2P and the protection of civilians (PoC). The jury is still out on whether international military action in Libya and Côte d’Ivoire will promote consolidation or softening of the twin norms. There were inconsistencies in the muted response to protests and uprisings in Bahrain and Saudi Arabia where vital Western geopolitical and oil interests are directly engaged, and with the lack of equally forceful military action in Syria and Yemen. Western failures to defend the dignity and rights of Palestinians under Israeli occupation have been especially damaging to their claims to promote human rights and oppose humanitarian atrocities universally instead of selectively. Despite the doubts, the alternative of standing idly on the sidelines yet again would have added to the shamefully long list of rejecting the collective responsibility to protect. Gaddafi would have prevailed and we have no reason to doubt his threat to embark on a methodical killing spree of rebel 21 The commendable initial clarity was soon muddied, and policy benchmarks made needlessly tougher, when Obama joined the British and French leaders in writing that although the goal of military action was “not to remove Qaddafi by force”, “it is impossible to imagine a future for Libya with Qaddafi in power”. Barack Obama, David Cameron and Nicolas Sarkozy, ‘Libya’s Pathway to Peace’, International Herald Tribune, 14 April 2011. 22 Jacob Heibrunn, ‘America's Foreign Policy Valkyries: Hillary Clinton, Samantha Power, and Susan Rice’, National Interest, 21 March 2011, <http://nationalinterest.org/blog/jacob- heilbrunn/americas-foreign-policy-valkyries-hillary-clinton-samantha-p-5047> [Accessed 5 September 2011]. 23 Mark Krikorian, ‘They Know Who Wears the Pants in This Country’, National Review Online, 21 March 2011, <http://www.nationalreview.com/corner/262607/they-know-who-wears-pants- country-mark-krikorian> [Accessed 5 September 2011].
  26. 26. Libya and the Responsibility to Protect - 21 - leaders, cities and regions alley by alley, house by house, room by room. Had the world shirked its responsibility, Libya could have been the graveyard of the new R2P norm and the UN might as well have sounded the last post for it. Libya marks the first time the Security Council has authorised an international R2P operation. Côte d’Ivoire is the first time it has authorised the use of military force by outside powers solely for PoC. Between them, Resolutions 1973 and 1975 show that including R2P language in the preamble might provide the normative justification for PoC demands in the operational paragraphs of the UN mandates. Many PoC champions fear the more overtly politicised agenda of R2P. This ignores the reality of how they come together when atrocity crimes are being committed. PoC advocates are nervous about being cross-contaminated by R2P because they tend to focus on the soft side of the subject, such as programs to train peacekeepers, rather than the sharp end of robust military action. In justifying the authorisation of all necessary measures by the UN peace operation in Côte d’Ivoire, UN Security Council Resolution 1975 reaffirmed “the primary responsibility of each State to protect civilians” and, in the same sentence, reiterated that “parties to armed conflict bear the primary responsibility to take all feasible steps to ensure the protection of civilians”. 24 Seamus Milne, convinced that the Arab revolution had been hijacked by the imperialist West in Libya, argued that “If stopping the killing had been the real aim, Nato states would have backed a ceasefire and a negotiated settlement, rather than repeatedly vetoing both”. 25 Terry Macalister, the Guardian’s energy editor, believes that “The Libyan conflict has been a war about oil if not ‘for’ oil”. The British and French governments have worked “hand in glove” with the big energy companies in the war to rid Libya of Gaddafi and secure access to future energy supplies, he argues. He asks whether their cooperation is “a potent symbol that western politics and oil are so closely intermeshed that the agendas of both are indistinguishable”? 26 In his speech to the General Assembly, India’s Prime Minister Manmohan Singh made a thinly-veiled attack on the expansive interpretation by NATO of Resolution 1973: “Actions taken under the authority of the United Nations must respect the unity, territorial integrity, sovereignty and independence of 24 United Nations Security Council, Resolution 1975 (2011), 17 March 2011. 25 Seamus Milne, ‘Libya’s Imperial Hijacking Is a Threat to the Arab Revolution’, Guardian, 24 August 2011, <http://www.guardian.co.uk/commentisfree/2011/aug/24/libyas-imperial-hijacking- threat-arab-revolution> [Accessed 5 September 2011]. 26 Terry Macalister, ‘So, Was this a War for Oil?’ Guardian, Friday 2 September 2011, <http://www.guardian.co.uk/commentisfree/2011/sep/02/next-war-libya-one-for-oil> [Accessed 5 September 2011].
  27. 27. Ramesh Thakur - 22 - individual states”. 27 Russia and China led the chorus of dismay at the UN appearing to take sides in the internal conflicts in Libya and Côte d’Ivoire. 28 They may be less willing in future to permit sweeping endorsements for tough action, either by a coalition (Libya) or by UN peacekeepers (Côte d’Ivoire). Value-free pragmatism is no more an answer to the challenge of reconciling realism and idealism than opportunistic humanitarianism. Brazil, China, Germany, India, and Russia joined the African Union (AU) in positioning themselves on the wrong side of the war—as witnessed in the triumphal visit of British Prime Minister David Cameron and French President Nicolas Sarkozy to Libya in September—and on the wrong side of history insofar as the emerging normative architecture is concerned. The AU moved to recognise the rebel Transitional National Council on 20 September, only after they had captured Tripoli. Among others, one risk for the AU is that the new regime will highlight its Arab over its African heritage and identity. 29 The reason this matters is that, following the Libya precedent, regional organisations may well acquire a critical ‘gatekeeping role’ in the global authorisation of R2P-type operations. 30 As long as the rising new powers remain more concerned with consolidating their national power aspirations than developing the norms and institutions of global governance, 31 they will remain incomplete powers, limited by their own narrow ambitions, with their material grasp being longer than their normative reach. The Libyan people’s euphoria and NATO’s relief over the successful military campaign is likely to temper criticisms of the manner in which NATO rode roughshod over UN authorisation to protect civilians. For NATO had indeed intervened on behalf of one side in a civil war and pursued regime change. That said, we should not retreat into naivety on what may be required in particular circumstances. Already in 2003, replying to criticisms of the ICISS report by Adam Roberts, I had noted that “the primary motivation behind intervention—the cause rather than the necessary condition—must not be defeating an enemy state”. But “If defeat of a non-compliant state or regime 27 ‘Manmohan Slams West for Using Force to Change Regimes’, Times of India, 25 September 2011, <http://articles.timesofindia.indiatimes.com/2011-09-25/india/30200524_1_libya- sovereignty-countries> [Accessed 26 September 2011]. 28 See Patrick Worsnip, ‘ANALYSIS-U.N. Protection of Civilians at Issue after Libya’, Reuters, 13 May 2011 <http://www.trust.org/alertnet/news/analysis-un-protection-of-civilians-at-issue- after-libya> [Accessed 5 September 2011]. 29 See Knox Chitiyo, ‘Has Africa Lost Libya?’, Guardian, 19 September 2011, <http://www.guardian.co.uk/commentisfree/2011/sep/18/africa-libya-not-lost> [Accessed 19 September 2011]. 30 See Alex J Bellamy and Paul D Williams, ‘The New Politics of Protection? Côte d’Ivoire, Libya and the Responsibility to Protect’, International Affairs, vol. 87, no. 4 (2011), pp. 825-50. 31 See Amitav Acharya, ‘Can Asia Lead? Power Ambitions and Global Governance in the Twenty-first Century’, International Affairs, vol. 87, no. 4 (2011), pp. 851-69.
  28. 28. Libya and the Responsibility to Protect - 23 - is the only way to achieve the human protection goals, then so be it”. 32 In Libya, the West’s strategic interests coincided with UN values. This does not mean that the latter was subordinated to the former. It does mean, as with Australia vis-à-vis East Timor in 1999, that there was a better prospect of sustained NATO engagement than if Western interests were not affected. Paris, London and Washington—and Ban—did not waver in their resolve, despite critics from the left pushing for diplomacy, not war and critics from the right calling for boots on the ground. The protracted wars in Iraq and Afghanistan notwithstanding, too many expected or demanded instant military gratification. In fact six months to overthrow an entrenched and determined dictator is not excessively long. Moreover, it is also true that had all the restrictions of Resolution 1973 been scrupulously observed, the war would have been more protracted and messier, and coalition unity of purpose and action would have been even more strained. The outcome is a triumph first and foremost for the citizen soldiers who refused to let fear of Gaddafi’s thugs determine their destiny any longer. It is triumph secondly for R2P. It is possible for the international community, working through the authenticated, UN-centred structures and procedures of organised multilateralism, to deploy international force to neutralise the military might of a thug and intervene between him and his victims with reduced civilian casualties and little risk of military casualties. NATO military muscle deployed on behalf of UN political will help to level the killing field between citizens and a tyrant. But the ruins of Libya’s political infrastructure and parlous state of its coffers mean that the third component in the ICISS formulation R2P—the international responsibility to rebuild and reconstruct 33 —will also be called on. This will require the international community to stay engaged with state building in Libya for some time. Fortunately, Libya’s physical infrastructure remains mainly intact as there was no Iraq-style shock-and-awe bombing campaign. The willingness, nature and duration of outside help will also help to shape the judgment of history on whether Western motivations were primarily self-interested geopolitical and commercial, or the disinterested desire to protect civilians from a murderous rampage. As with the war itself, however, the lead role will have to be assumed by Libyans themselves, while the international community can assist without assuming ownership of the process or responsibility for the outcome. The price of that in turn may require the international community to accept and live with the political choices made by the Libyans. The Transitional 32 Ramesh Thakur, ‘In Defence of The Responsibility to Protect’, International Journal of Human Rights, vol. 7, no. 3 (Autumn 2003), p. 163. 33 The substance of this is incorporated within Pillar Two (international assistance) in the subsequent reformulation of R2P by Secretary-General Ban.
  29. 29. Ramesh Thakur - 24 - National Council’s immediate priorities are to establish security, law and order; prevent lootings and reprisals and avoid attacks on black Africans by lighter-skinned Arabs as the new normal; defeat remaining pockets of resistance by Gaddafi loyalists and prevent them from turning into a protracted low-level insurgency, and establish control over the whole country; restore infrastructure and public services; and ameliorate the humanitarian situation. National reconciliation based on the politics of concessions, compromises and power-sharing accommodation, reconstruction and continuing regional and international support will be the next order of business after immediate humanitarian needs have been met. Conclusion In both Libya and Côte d’Ivoire, regimes that had lost all domestic and international legitimacy declared war on their own people. In both, global political responses were shaped by universal values as well as strategic interests, so that UN member states moved closer to mirroring traditional UN policy and perspectives. Because the UN is taking the lead in redefining sovereignty by aligning state prerogatives with the will and consent of the people, the ruling class of any country must now fear the risk and threat of international economic, criminal justice and military action if they violate global standards of conduct and cross UN red lines of behaviour. 34 The two operations in Libya and Côte d’Ivoire therefore mark a pivotal rebalancing of interests and values. In the old world order, international politics, like all politics, was a struggle for power. 35 The new international politics will be about the struggle for the ascendancy of competing normative architectures based on a combination of power, understood as the disciplined application of force, and values and ideas. At the time of writing, the rebels had captured Tripoli but not Gaddafi. Hard questions, unasked so as not to complicate the push for victory, will now come to the fore. Who are the rebels? What do they stand for? For whom do they speak? How much popular support do they command? Albeit qualified and incomplete, therefore, Libya nevertheless does mark an important milestone on the journey to tame atrocities on their own people by tyrants. In the words of former Secretary General Dag Hammarskjöld, the UN was “not created in order to bring us to heaven, but to save us from hell”. 36 34 For the intimate relationship between the twin normative agendas of R2P and international criminal justice, see Ramesh Thakur and Vesselin Popovski, ‘The Responsibility to Protect and Prosecute: The Parallel Erosion of Sovereignty and Impunity’, in Giuliana Ziccardi Capaldo (ed.), The Global Community: Yearbook of International Law and Jurisprudence 2007, vol. 1 (New York: Oxford University Press, 2008), pp. 39-61. 35 This was most famously formulated in Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace, 4th ed. (New York: Alfred A. Knopf, 1967). 36 Quoted in Brian Urquhart, Hammarskjold (New York: W. W. Norton, 1994), p. 4.
  30. 30. Libya and the Responsibility to Protect - 25 - Failures in Africa and the Balkans in the 1990s reflected structural, political and operational deficiencies that accounted for the UN’s inability to save people from a life of hell on earth. R2P responds to the idealised UN as the symbol of an imagined and constructed community of strangers: We are our brothers’ and sisters’ keepers. Ramesh Thakur is Professor of International Relations in the ANU’s Asia–Pacific College of Diplomacy, and Adjunct Professor in the Institute of Ethics, Governance and Law at Griffith University. He was Vice Rector and Senior Vice Rector of the United Nations University (and Assistant Secretary-General of the United Nations) from 1998–2007. He was a Commissioner and one of the principal authors of The Responsibility to Protect, and Senior Adviser on Reforms and Principal Writer of Secretary-General Kofi Annan’s second reform report. His related books include The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge University Press, 2006); Global Governance and the UN: An Unfinished Journey, co-written with Thomas G. Weiss (Indiana University Press, 2010); The Responsibility to Protect: Norms, Laws and the Use of Force in International Politics (Routledge, 2011); Blood and Borders: The Responsibility to Protect and the Problem of the Kin-State, co- edited with Walter Kemp and Vesselin Popovski (UN University Press, 2011); and The People vs. the State: Reflections on UN Authority, US Power and the Responsibility to Protect (UN University Press, 2011). His next major project is The Oxford Handbook of Modern Diplomacy co-edited with Andrew F. Cooper and Jorge Heine (Oxford University Press, forthcoming). ramesh.thakur@anu.edu.au.
  31. 31. - 26 -
  32. 32. Security Challenges, Vol. 7, No. 4 (Summer 2011), pp. 27-38. - 27 - The Protection of Civilians in UN Peacekeeping Operations: Recent Developments Michael G. Smith, Jeni Whalan and Peter Thomson The frequency with which peacekeeping operations have proved inadequate to protect civilians has prompted substantial reform of peacekeeping mandates and practice. But it has also led to significant normative developments within the wider UN system—not just in peacekeeping mandates and practice. This article charts the normative, institutional and operations contours of the protection of civilians in armed conflict within the UN, highlighting the particular contributions of the Australian government to that agenda. It concludes by identifying four pathways through which efforts to protect civilians can be improved. 1 In his report that coincided with Remembrance Day 2010, the Secretary- General of the United Nations (UN), Ban Ki-Moon, reinforced the central importance of the ‘protection of civilians’ (PoC) to UN peacekeeping, thereby confirming protection as a key measure of UN effectiveness and credibility: we must focus our efforts on enhancing protection where and for whom it matters most—on the ground, in the midst of conflict and for the hundreds of thousands of civilians who are, on a daily basis, at risk of, or fall victim to, serious violations of international humanitarian law and human rights law.2 Armed conflict has tragic consequences for civilians. Too often in recent conflicts, armed groups have intentionally targeted civilians as a tool of war—including many in which UN peacekeepers were deployed. In Rwanda in 1994, the United Nations system and its hopelessly inadequate peacekeeping force were “almost paralysed in the face of a wave of some of the worst brutality humankind has seen in [that] century”. 3 In 1995, peacekeepers in the tragically named UN Protection Force oversaw the establishment of ‘safe areas’ which were anything but for up to 20,000 civilians killed in and around Srebrenica, Sarajevo, Bihać, Goražde, Žepa, and Tuzla. 4 And in the Democratic Republic of Congo, Major General Patrick Cammaert reflected on the abhorrent prevalence of rape, noting that 1 The views expressed in this paper are those of the authors alone; they do not necessarily reflect the position of the Australian government. 2 United Nations Security Council, Report of the Secretary-General on the Protection of Civilians in Armed Conflict, S/2010/579, 11 November 2010. 3 United Nations Security Council, Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, S/1999/1257, 16 December 1999. 4 United Nations General Assembly, Report of the Secretary-General Pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, A/54/549, 15 November 1999.
  33. 33. Michael G. Smith, Jeni Whalan and Peter Thomson - 28 - “[i]t has probably become more dangerous to be a woman than a soldier in armed conflict”. 5 The frequency with which peacekeeping operations have over the past two decades proved inadequate to protect civilians has prompted substantial reform of peacekeeping mandates and practice. But it has also led to significant normative developments within the wider UN system—not just in peacekeeping mandates and practice. An emerging priority for field operations, PoC is also becoming a focal point within the UN security system: an embryonic coordinating raison d’être among the UN’s central organs—the Security Council, the General Assembly and the Secretariat— and its member states and agencies. In official statements, policy discourse and scholarly contributions, the credibility of the UN is increasingly argued to hinge on its ability to protect civilians. In his remarks at the 2010 UN Security Council open debate on the protection of civilians in armed conflict, UN Secretary-General Ban Ki-Moon stated that “saving and protecting people from the horrors of armed conflict” is a central component of the UN’s ‘cardinal mission’. The UN’s New Horizon agenda notes that consensus on policy and requirements for civilian protection is “central to the success of current and future UN peacekeeping operations”. 6 Paul Williams goes even further, arguing that PoC is critical to the “legitimacy and success of individual peacekeeping operations but also to the credibility of the entire UN system”. 7 Indeed, the protection of civilians is a core component of the UN’s contemporary efforts to save generations form the scourge of war, echoed in regional organisations and by national governments around the world. Nowhere is this more evident than within the multidimensional peace operations that today integrate protection as a cross-cutting issue to be addressed by military, civilian and policing components acting in concert— not by any one component alone. Yet the protection agenda within the UN system is far outpacing the development of practical, operational methods for actually fulfilling protection obligations in the field. 8 As Dennis McNamara noted in 2009, while the last decade saw “major—and even quite radical” 5 Patrick Cammaert quoted in United Nations Office of the High Commissioner for Human Rights, ‘Rape: Weapon of War’, <http://www.ohchr.org/EN/NewsEvents/Pages/ RapeWeaponWar.aspx> [Accessed 9 September 2011]. 6 UN Department of Peacekeeping Operations and Department of Field Support, A New Partnership Agenda: Charting a New Horizon for UN Peacekeeping (New York: United Nations, July 2009), p. v. 7 Paul D. Williams, Enhancing Civilian Protection in Peace Operations: Insights from Africa, Africa Center for Strategic Studies, Research Paper No. 1, (Washington DC: National Defense University Press, September 2010), p.11. 8 On the history of civilian protection, see Siobhán Wills, Protecting Civilians: The Obligations of Peacekeepers (Oxford: Oxford University Press, 2009).
  34. 34. The Protection of Civilians in UN Peacekeeping Operations: Recent Developments - 29 - progress at the institutional level, “this has not led to more effective protection in the field for most civilians caught-up in today’s wars”. 9 The Normative and Practical Contours of PoC A task increasingly assigned to peacekeeping operations by the Security Council, PoC is, at its roots, based on international humanitarian law, human rights law and refugee law. The moral imperative to protect civilians is grounded in inherent principles of humanity and codified in international law. 10 For humanitarian actors, the touchstone definition of humanitarian protection is that developed by the International Committee of the Red Cross and endorsed by the Interagency Standing Committee: all activities aimed at ensuring full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law, i.e. human rights law, international humanitarian law, and refugee law. Human rights and humanitarian organisations must conduct these activities in an impartial manner (not on the basis of race, national or ethnic origin, language or gender).11 The norm that civilians are not legitimate targets in war and should be protected from the consequences of violent conflict is subject to little contestation. As an operational objective and a practical task, however, protecting civilians is a more challenging endeavour. The operational implementation of civilian protection can and does mean different things to different actors. In this way, conceptual debates regarding the ‘protection’ resemble those of other contested terms such as ‘security’—which may refer to practices across a wide span of traditional national defence, international collective security or broad human security, entailing distinctive policy instruments and desired outcomes. Civilian protection can and does exist outside of peacekeeping operations, which adds to the confusion. Further, actions to ‘protect’ are not immune from unintended consequences. 9 Dennis McNamara, ‘The Politics of Protection’, keynote address to the conference ‘Protecting People in Conflict and Crisis: Responding to the Challenges of a Changing World’, Oxford, September 2009, available <http://www.rsc.ox.ac.uk/pdfs/keynotepapermcnamara.pdf> [Accessed 23 September 2011]. 10 See Charles Sampford, this volume. These normative foundations of PoC are shared with the related norm of the Responsibility to Protect (R2P), endorsed by UN member states at the 2005 World Summit. However, where R2P is limited in application to preventing civilians from four specific mass atrocity crimes—genocide, war crimes, crimes against humanity, and ethnic cleansing—PoC has much broader application: to protect civilians from conflict-related grave harms, which may include the R2P atrocity crimes, but which also extend to serious human rights violations and the broader human costs of armed conflict. For more on the relationship between PoC and R2P, see Global Centre for the Responsibility to Protect, ‘The Relationship between the Responsibility to Protect and the Protection of Civilians in Armed Conflict’, Policy Brief, 9 May 2011, <http://responsibilitytoprotect.org/The%20Relationship%20Between% 20POC%20and%20R2P-%20Updated.pdf> [accessed 23 September 2011]. 11 See International Committee of the Red Cross, Professional Standards for Protection Work, (Geneva: ICRC, October 2009), p. 8.
  35. 35. Michael G. Smith, Jeni Whalan and Peter Thomson - 30 - As it exists in debates before the Security Council, and as it will be considered here, the PoC agenda focuses primarily on the implementation of protection through the mandates of UN peace operations. At the heart of contemporary PoC debates is a difficult practical challenge: how should protection mandates be operationalised? How can protection be implemented in practice? In this context, civilian protection is now broadly understood to be an inherent objective of contemporary peacekeeping. For the authors of the independent study commissioned by the UN’s Department of Peacekeeping Operations (DPKO) and the Office for the Coordination of Humanitarian Affairs (OCHA), PoC is intrinsic to peacekeeping and “[m]issions are presumed to deploy to protect civilians, which is an enduring, implicit goal of operations”. 12 Importantly, where UN peacekeepers are deployed with protection mandates, current guidance prescribes the adoption of multidimensional strategies: just as peacekeeping is no longer the sole domain of soldiers, protection can only be achieved through the concerted efforts of integrated civil, military and police components within the peace operation, working in collaboration with the UN Country Team when deployed, and with the host state that retains ultimate responsibility for the protection of their citizens. PoC straddles the traditional ‘3D’ divisions between diplomacy, defence and development. It requires a fundamentally integrated approach, for which the security forces and civilian structures of contributing states are often ill- suited. It stands to reason that if multidimensional UN peacekeeping missions are effectively to implement PoC, then countries contributing troops, police and civilian personnel must also develop their own integrated national approaches; it is unrealistic to expect that the United Nations can implement PoC when its member states lack the necessary capabilities. New approaches and ad hoc coordination mechanisms within contributing member states are required to breakdown and re-link traditional silos of effort, including for the development of national PoC doctrine. The Evolution of PoC in UN Peacekeeping The personnel of today’s peace operations face more difficult PoC challenges than did ‘traditional’ peacekeepers. Developed during the Cold War, traditional peacekeeping operations were deployed primarily to address inter-state conflicts. Designed to implement agreed conflict settlements, 12 Victoria Holt and Glyn Taylor, with Max Kelly, Protecting Civilians in the Context of UN Peacekeeping Operations: Successes, Setbacks and Remaining Challenges, independent study jointly commissioned by the UN Department of Peacekeeping Operations and the UN Office for the Coordination of Humanitarian Affairs, 17 November 2009, p. 210. Similarly, Paul Williams views civilian protection as the ‘very essence’ of peacekeeping (Enhancing Civilian Protection in Peace Operations, p. 7).
  36. 36. The Protection of Civilians in UN Peacekeeping Operations: Recent Developments - 31 - these operations were charged with monitoring ceasefires and buffer zones, in largely consensual environments populated by state-controlled militaries. To the extent that traditional peacekeeping missions helped to manage or end conflict, they coincidentally may have contributed to protecting civilians. However, PoC was neither the core concern nor the explicit mandate of these earlier operations. Some earlier precedent can be found in the wording of a leaflet, signed by Special Representative of the Secretary- General Ralph Bunche and Force Commander General Carl Van Horn, distributed to troops of the United Nations Operation in the Congo (ONUC), deployed in 1960: You serve as members of an international force. It is a peace force, not a fighting force … Your task is to help in restoring order and calm in this country which has been so troubled recently … Protection against acts of violence is to be given to all the people, white and black. You carry arms, but they are to be used only in self-defence. You are in the Congo to help everyone, to harm no one.13 Deployed within a state and authorised to use force if necessary, ONUC stands out from the UN’s other early peacekeeping endeavours, not least for its demonstration of the fundamental tensions between sovereignty, consent, impartiality, human rights and the broader maintenance of peace and security. These tensions continue to plague contemporary peacekeeping, with the political, analytical and practical challenges of civilian protection at their core. There is nothing ‘new’ about the human cost of conflict, nor anything distinctly modern about the deliberate targeting of civilians as a tactic of warfare. But for the UN, and for its constantly evolving instrument of peacekeeping, the challenge of confronting these wrongs remains a relatively new demand on the organisation. In Cambodia, Rwanda, Bosnia, Haiti, East Timor, and in a host of African states, UN peacekeepers have been deployed in settings where civilians have tragically been targeted in deliberate attacks by armed parties. Mechanisms such as ceasefire monitoring and interposition forces are no longer sufficient to address the conditions of insecurity into which peace operations are deployed, where often fragmented armed groups wage conflict across invisible ‘frontlines’ that can too easily be concealed within communities. Peacekeepers are now more often authorised to use all necessary means, including deadly force, in the pursuit of their mandates. Notably, there is no explicit mention of civilian protection in Boutros-Ghali’s landmark An Agenda for Peace, which in 1992 laid out a new manifesto for the post-Cold War United Nations, nor its 1995 Supplement, released after 13 Quoted in Herbert Nicholas, ‘UN Peace Forces and the Changing Globe: The Lessons of Suez and Congo’, International Organization, vol. 17, no. 2 (Spring 1963), fn. 14, pp. 329-30.
  37. 37. Michael G. Smith, Jeni Whalan and Peter Thomson - 32 - the tragedy of Rwanda. In October 1995, DPKO released its ‘General Guidelines for Peacekeeping’, which mentions civilian protection only once, to question the feasibility and desirability of ‘safe areas’ that damage the impartiality of peacekeepers. 14 By 1998, however, the demand for peacekeeping reform had seized UN headquarters. In that year, the Secretary-General Kofi Annan marked an important step in the UN’s emerging protection agenda by identifying PoC as a ‘humanitarian imperative’. Outlining his justification for prioritising civilian protection on the Security Council’s agenda, Annan characterised the significance of PoC in a manner that continues to shape its debates today: In recent decades, there has been a dramatic and unacceptable deterioration in the level of adherence to humanitarian norms in crisis situations … In the past, civilian populations were chiefly indirect victims of fighting between hostile armies. Today, they are often the main targets, with women suffering in disproportionate numbers while often also being subjected to atrocities that include organised rape and sexual exploitation … Adherence to international humanitarian and human rights norms by all parties to a conflict must be insisted upon, and I intend to make this a priority in the work of the United Nations.15 In the years that followed, the United Nations progressively embedded PoC as a peacekeeping objective. In 1999, the Security Council established the United Nations Assistance Mission in Sierra Leone (UNAMISIL), authorising it “within its capabilities and areas of deployment, to afford protection to civilians under imminent threat of physical violence”. 16 The Security Council has now authorised twelve UN peace operations with PoC mandates, eight of which remain active at the time of writing in 2011: UNOCI in Cote d’Ivoire; MONUSCO in the Democratic Republic of Congo; MINUSTAH in Haiti; UNIFIL in Lebanon; UNMIL in Liberia; UNMISS in South Sudan; UNISFA in Abyei; and UNAMID in Darfur. 17 The release in 2000 of The Report of the Panel on United Nations Peacekeeping Operations, known as the Brahimi Report, catalysed significant shifts in the UN’s approach to peace operations, including with regard to PoC. The report identified numerous problems in UN peacekeeping; among its many recommendations was the call for “robust doctrine and realistic mandates”. The Brahimi Report observed that the UN had often been unable to respond effectively to challenges on the ground 14 United Nations Department of Peace-keeping Operations, General Guidelines for Peace- Keeping Operations (New York: United Nations, 1995); see also Williams, Enhancing Civilian Protection in Peace Operations, p. 13. 15 United Nations, The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa, Report of the Secretary-General, A/52/871—S/1998/318, 13 April 1998, paras 49-50. 16 United Nations Security Council, Resolution 1270 (1999), 22 October 1999. 17 The UN mission in Sudan (UNMIS) completed its operations in July 2011; its successor mission, the UN mission in South Sudan (UNMISS) also has a PoC mandate.
  38. 38. The Protection of Civilians in UN Peacekeeping Operations: Recent Developments - 33 - and it stressed the need for peacekeepers, once deployed, to carry out their mandates “professionally and successfully”. Moreover, UN peacekeepers, whether troops or police, who witness violence against civilians “should be presumed to be authorised to stop it, within their means, in support of basic UN principles”. 18 As PoC gained prominence within UN peacekeeping debates, in 2002 UN OCHA submitted to the Security Council an Aide Memoire, intended as a practical diagnostic tool for the Security Council’s consideration of PoC issues during deliberations on peacekeeping mandates. The Aide Memoire is regularly updated; its fourth edition, published in 2011, identifies seven general areas of protection concern: 1. Parties’ responsibilities to protect and assist the conflict-affected population; 2. The protection of refugees and internally displaced persons; 3. Humanitarian access and safety and security of humanitarian workers; 4. The conduct of hostilities; 5. Small arms and light weapons, mines and explosive remnants of war; 6. Compliance, accountability and the rule of law; and 7. Media and information, inc. protection of journalists, countering occurrences of speech used to incite violence, and promoting and supporting accurate management of information on the conflict. 19 The Aide Memoire also details protection concerns related to two specific conflict-affected populations: women and children. Finally, it includes an appendix of protection language used in Security Council resolutions to address the spectrum of issues listed above. Two cross-cutting protection themes have emerged in Security Council debates over the past decade: the protection of women and children in conflict. In 2000 the Security Council specifically linked women’s experience of conflict to the maintenance of international peace and security. 20 In 2008, 18 United Nations, Report of the Panel on United Nations Peace Operations, A/55/305— S/2000/809, 21 August 2000. 19 UN OCHA, ‘Aide Memoire: For the Consideration of Issues Pertaining to the Protection of Civilians in Armed Conflict’, Policy and Studies Series, vol. 1, no. 4 (2011). The Aide Memoires have been adopted through Presidential Statements in the Security Council; the most recent was adopted in S/PRST/2011/25. 20 United Nations Security Council, Resolution 1325 (2000), 31 October 2000.

×